Agbolade Odutayo and Bonita Odutayo v. Steve Wu Individually and as Trustee for the Wu Family Trust

ACCEPTED
01-15-00641-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/4/2015 5:28:11 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00641-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS 8/4/2015 5:28:11 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
AGBOLADE ODUTAYO and BONITA ODUTAYO,
Appellants
v.
STEVE WU, Individually and as Special Trustee for Wu Family Trust,
Appellee
Appeal
From the133rd Judicial District Court of Harris County, Texas
Cause No. 2013-30215
The Honorable Jaclanel McFarland, Presiding
_____________________________________________________________________
APPELLEE’S MOTION TO DISMISS AND RESPONSE TO
MOTION FOR EXTENSION OF TIME TO FILE
NOTICE OF APPEAL
_____________________________________________________________________
Brad E. Porter
Tex. Bar No. 24048741
brad@porterpowers.com
J. Robert MacNaughton
Tex. Bar No. 00789944
robert@porterpowers.com
PORTER & POWERS, PLLC
5900 Memorial Drive, Suite 305
Houston, Texas 77007
713-621-0700 Telephone
713-621-0709 Facsimile
ATTORNEYS FOR APPELLEE
STEVE WU, Individually and as
Special Trustee for Wu Family Trust
APPELLEE’S MOTION TO DISMISS AND RESPONSE TO APPELLANTS’
MOTION FOR EXTENSION OF TIME TO
FILE NOTICE OF APPEAL
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
Appellee, Steve Wu, Individually and as Special Trustee for Wu Family Trust
(“Appellee”), moves to dismiss this appeal under Rule 10 of the Texas Rules of
Appellate Procedure for lack of jurisdiction, because the Appellants have failed to
timely file a notice of appeal to invoke the Court’s jurisdiction, and have also failed to
file an sufficiently adequate motion for extension of time to file notice of appeal
within the time period proscribed.
On July 24, 2015, Appellants, Agbolade Odutayo and Bonita Odutayo
(“Appellants”), filed and served “Appellants Motion for Extension of Time to File
Notice of Appeal” in this proceeding (“Motion to Extend”) within the grace period
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provided by Rule 26.3. The Motion to Extend is not verified or supported by any
evidence. Also on July 24, 2015, Appellants filed and served a Notice of Appeal in
the court below (“Notice of Appeal”).
The Notice of Appeal gives notice that the Appellants are appealing the final
summary judgment order signed and entered April 13, 2015. Appellants, as
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The Motion to Extend does not meet with the requirements of Rule 10.1(a)(5) as no Certificate of
Conference was provided, as no such conference ever occurred, and on information and belief no attempt to confer
was ever made. In addition, on information and belief, the Motion to Extend was not electronically filed, as is
required when the Appellants are represented by counsel.
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defendants below, filed a timely Motion for New Trial on May 12, 2015 (“Motion for
New Trial”). The Appellants did not seek to have a timely hearing on the Motion for
New Trial and it was overruled by operation of law as of June 27, 2015. 2 Because the
Appellants had filed the Motion for New Trial, the deadline for filing the Notice of
Appeal was July 13, 2015, the Monday following the deadline. The Notice of Appeal
was not timely filed, and the Appellants must comply with the requirements for
obtaining an extension of time to file it.
Pursuant to Texas Rules of Appellant Procedure, Rule 26.3(b) in addition to
filing a Notice of Appeal within the fifteen days after the deadline for filing the notice
of appeal, the Appellants were required to file a motion complying with Rule 10.5.(b),
in order to obtain an extension of time to file the Notice of Appeal. See: TEX. R. APP.
PROC. 26.3(B). Pursuant to Texas Rules of Appellant Procedure, Rule 10.5(b)(2), the
Appellants’ Motion to Extend was required to contain, as the rule states: “the facts
relied on to reasonably explain the need for an extension,” pursuant to Rule
10.5(b)(1)(C). See: TEX. R. APP. PROC. 10.5(B)(2) AND 10.5(B)(1)(C). The only
statement contained in the Motion to Extend as to why an extension was needed is the
statement making up the third paragraph:
“This extension of time is necessary because the 90-day deadline
to file has passed and the appellant’s [sic] Motion for a New Trial
was overruled by operation of law.”
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Appellants first set the Motion for New Trial for hearing and then re-set it hearing for July 20, 2015,
wherein the trial court advised the parties that the Motion for New Trial had been overruled by operation of law and
the court would leave it that way.
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The Motion to Extend provides no other basis, or facts, for seeking an extension of
time to file the Notice of Appeal.
In the context of the old Rule 41 of the Texas Rules of Appellate Procedure, to
obtain and extension of time to file a cost bond the Texas Supreme Court has defined
as that a “reasonable explanation” is:
“Any plausible statement of circumstances indicating that failure to
file . . . was not deliberate or intentional, but was the result of
inadvertence, mistake, or mischance, [would] be accepted as a
reasonable explanation, even though counsel or his secretary
may appear to have been lacking in that degree of diligence which
careful practitioners normally exercise.”
See: Garcia v Kastner Farms,, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (citing: United
States Fire Ins. Co. v. Stricklin, 547 S.W.2d 338 (Tex. Civ. App. - Dallas 1977, no
writ) and Heritage Life Ins. Co. v. Heritage Group Holding Corp, 751 S.W.2d 229,
231-32 (Tex. App. – Dallas 1988, writ den’d.). This standard is also applied to
extensions of time for notices of appeals. See: Hone v Hanaflin, 104 S.W.3d 884
(Tex. 2003) (citing: Meshwert v Meshwert, 549 S.W.2d 383, 384 (Tex. 1977).
Texas courts have granted motions for extension of time to file a notice of
appeal where explanation provided was a misunderstanding of, or applicable appellate
rules, such as an erroneous calculation of a deadline; Dimotsis v State Farm Lloyds,,
966 S.W.2d 657 (Tex. App. – San Antonio 1998) (by verified statement); an
improperly calendared deadline; Gregorian v. Ewell, 106 S.W.3d 257, 258 (Tex. App.
– Fort Worth 2003, no pet.)(held to the unique circumstances of that case); and a
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mistaken designation of the wrong court of appeals; Birmingham Fire Ins. Co. of
Pennsylvania v American National Fire Ins. Co., 928 S.W.2d 226, 228 (Tex. App. –
Texarkana 1996, no writ); Garcia v Kastner Farms Inc., 774 S.W.2d 668, 670 (Tex.
1989).
Texas courts have found an explanation unreasonable when the explanation
reveals a defendant’s conscious or strategic decision to wait to file a notice of appeal
because the explanation did not show inadvertence, mistake, or mischance. Hykonnen
v. Baker Hughes Business Support Services, 93 S.W.3d 562, 563-64 (Tex. App. –
Houston [14th Dist.] 2002, no pet.). In Hykonnen, the appellant contended in essence
that they did not timely file the appeal because they did not have the funds to hire an
attorney.
In this case, the Appellants have not contended that they did not know of the
deadline, or that there was a mistake, they just contend that the deadline has
happened. The Court in Weik v Second Baptist Church of Houston, held that waiting
until trial court’s plenary power expired in case trial court reinstated case was not
sufficient grounds for a late notice of appeal. Weik v Second Baptist Church of
Houston, 988 S.W.2d 437, 439 (Tex. App. – Houston [1st Dist.] 1999, pet.. den’d.). If
it is appropriate for any facts to be reasonably inferred from the statements Appellants
did provide to the Court, they would be similar to the Weik case. Appellants waited to
see if the trail court would grant the Motion for New Trial at a hearing set after the 90
day deadline had run. Regardless whether it is considered intentional act or a failure
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to give any explanation at all as to why the Notice of Appeal should be permitted to
be filed late, the Appellants Motion to Extend should fail on either ground.
The Court in Kidd v. Paxton, held as being unreasonable for a motion to
extend, explanations that (1) counsel miscalculated the due date for filing notice of
appeal when he still failed to file notice of appeal on the miscalculated date and (2)
counsel's preoccupation with other cases without a detailed explanation of the
complexities and relevant deadlines of the other cases. See: Kidd v. Paxton, 1 S.W.3d
309-310-13 (Tex. App. – Amarillo 1999, no pet). The Court in Miller v. Greenpark
Surgery Center Associates, Ltd., has found that where the appellant has failed to
provide the court with any reasonable explanation or cite any evidence in the record
for the late filing is grounds for dismissal for want of jurisdiction. Miller v. Greenpark
Surgery Center Associates, Ltd., 974 S.W.2d 805, 808 (Tex. App. – Houston [14th
Dist.] 1998). There is no evidence in the record or in the Motion to Extend as to why
the Appellants should be permitted to continue this appeal with the late filed notice.
A timely notice of appeal is necessary to invoke jurisdiction in the appellate
court. See: In re A.L.B., 56 S.W.3d 651, 652 (Tex. App. – Waco 2001, no pet.) The
point of a deadline is to force the issue. Should an appellant, aware of the fact of the
deadline, fail to decide whether to appeal or not or just fail to act, then by its existence
the deadline decides the issue by default. To ignore these minimal requirements, is in
effect to have no deadline at all, and to give no meaning to the stated requirements of
Rule 10.5(b).
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An appellant is obligated to come forward with a reasonable explanation to
support the late filing of the notice of appeal. See: Miller, 974 S.W.2d at 808. In the
cases where the courts have found that a reasonable explanation was given, there was
an actual explanation given by the appellant. In this case, the Appellants have not
given any explanation. They merely recite the facts that the ninety (90) day deadline
has passed, and the Motion for New Trial was overruled by operation of law.
Therefore, the Appellants’ motion does not reasonably explain the need for the
extension. Likewise no reasonable inference can be made from what is in the Motion
for Extension that would provide a basis for allowing the late filed Notice of Appeal.
The Appellants do not contend that they did not know of the deadline. The facts
recited more appropriately indicate that Appellants knew of the deadlines and
procedures and simply did not timely file the Notice of Appeal for whatever tactical
reason they were following. However, there is no actual statement of why they did
not file the Notice of Appeal timely.
Contrary to the facts in Hone and similar to the facts in Miller and in
Hykonnen, in this case Appellants just consciously did not timely do what the Texas
Rules of Appellate Procedure requires.
Prayer
Appellee, Steve Wu, Individually and as Special Trustee for Wu Family Trust,
requests that the Court after consideration of the Appellants Motion for Extension of
Time to File Notice of Appeal and Appellee’s Motion to Dismiss and Response to
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Motion for Extension of Time to File Notice of Appeal, determine Appellants failed to
meet the standards set by Rule 10.5(b) of the Texas Appellate Rules of Civil
Procedure and case law on the subject, and order and dismissal of this appeal for lack
of jurisdiction.
Respectfully submitted,
PORTER & POWERS, PLLC
By: /s/ Brad E. Porter
Brad E. Porter
“Attorney in Charge”
Tex. Bar No. 24048741
brad@porterpowers.com
J. Robert MacNaughton
Tex. Bar No. 00789944
robert@porterpower.com
5900 Memorial Drive, Suite 305
Houston, Texas 77007
713-621-0700 Telephone
713-621-0709 Facsimile
ATTORNEYS FOR APPELLEE
STEVE WU, Individually and as
Special Trustee for Wu Family Trust
CERTIFICATE OF CONFERENCE
The undersigned conferred with counsel for Appellant by e-mail on August 4,
2015, and Appellants’ counsel is opposed to this motion.
/s/ J. Robert MacNaughton
J. Robert MacNaughton
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
was forwarded to the following attorneys or pro se parties pursuant to Rule 9.5 of the
Texas Rules of Appellate Procedure on August 4, 2015.
Darrell W. Jordan, Jr.
1305 Prairie, Suite 200
Houston, Texas 77002
/s/J. Robert MacNaughton
J. Robert MacNaughton
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