Airlinx Communications, Inc. v. Ultra Electronics Advanced Tactical Systems, Inc.

• Court: Court of Appeals of Texas
• Decided: November 16, 2015
• Docket: 03-15-00637-CV
• Status: Published

Opinion

ACCEPTED 03-15-00637-CV 7834074 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/16/2015 8:54:16 AM JEFFREY D. KYLE CLERK NO. 03-15-00637-CV

IN THE COURT OF APPEALS FOR THE FILED IN 3rd COURT OF APPEALS THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN AUSTIN, TEXAS _________________________________________________________ 11/16/2015 8:54:16 AM JEFFREY D. KYLE AIRLINX COMMUNICATIONS, INC., Clerk

APPELLANT,

v.

ULTRA ELECTRONICS ADVANCED TACTICAL SYSTEMS, INC.,

APPELLEE. _________________________________________________________

From The District Court Of Travis County, 353rd Judicial District, Cause No. D-1-GN-12-002873; The Honorable Karin Crump Presiding

APPELLEE’S MOTION TO DISMISS APPEAL

JEFFREY J. HOBBS State Bar No. 24012837 jhobbs@abaustin.com MARK L. HAWKINS State Bar No. 00790843 mhawkins@abaustin.com ANDREW F. YORK State Bar No. 24066318 ayork@abaustin.com ARMBRUST & BROWN, PLLC 100 Congress Avenue, Suite 1300 Austin, Texas 78701 (512) 435-2300 – telephone (512) 435-2360 – facsimile ATTORNEYS FOR APPELLEE TO THE HONORABLE COURT OF APPEALS, THIRD DISTRICT OF TEXAS:

Appellee Ultra Advanced Tactical Systems, Inc. files this Motion to Dismiss

Appeal, and respectfully shows the Court as follows:

A. Appellant’s Notice of Appeal Was Untimely.

The Court should dismiss Appellant’s appeal because it was not timely

perfected. The trial court signed its Final Judgment and Order Confirming

Arbitration Award on July 15, 2015. CR 391-397. As the Court noted, Appellant

was required to file its notice of appeal on or before August 14, 2015, but

Appellant’s Notice of Appeal was not filed until October 7, 2015. CR 403;

November 3, 2015 letter from Jeffrey D. Kyle, Clerk, to Tjalling Hoiska. To avoid

dismissal of the appeal for want of jurisdiction, the Court required Appellant to

provide either (1) proof of timely mailing of the Notice of Appeal to the trial court,

or (2) an affidavit swearing that the filing was mailed to the district clerk on or

before August 14, 2015. November 3, 2015 letter from Jeffrey D. Kyle, Clerk, to

Tjalling Hoiska.

In response, Appellant did not submit proof that it ever mailed its Notice of

Appeal to the district clerk, timely or otherwise. Instead, Appellant’s president,

Tjalling Hoiska, filed an affidavit parroting the language of the Court’s directive,

swearing under oath that “[t]he Notice of Appeal for this trial court case was

mailed to the district clerk’s office on or before August 14, 2015,” without even

2 offering a date on which the Notice of Appeal was supposedly mailed. Affidavit of

Tjalling P. Hoiska at ¶ 3. Mr. Hoiska’s affidavit is at best confused, and at worst

false testimony.

Mr. Hoiska signed the Notice of Appeal on October 7, 2015, the same day it

was electronically filed with the district court. CR 403. Mr. Hoiska now claims

that despite signing the Notice of Appeal on October 7, 2015, he had previously

mailed it to the district clerk on some unidentified date, before it was actually

signed and filed. Moreover, in its Docketing Statement, Appellant confirmed that

the Notice of Appeal was filed on October 7, 2015, and where the form requests,

“[i]f mailed to the trial court clerk, also give the date mailed,” Appellant left the

answer blank, indicating that the Notice of Appeal was never mailed. Docketing

Statement at § V.

Given those prior representations and circumstances, Mr. Hoiska’s sworn

testimony that he timely mailed a post-dated notice of appeal to the district clerk

strains credibility. The Court should disregard it, and dismiss Appellant’s appeal

for want of jurisdiction.

B. Appellant Cannot Pursue This Appeal Pro Se.

As an alternative, the Court need not resolve Mr. Hoiska’s dubious

testimony, and instead can dismiss this appeal because Appellant is not represented

by an attorney. Appellant is a corporation, and purports to be represented by its

3 president, Mr. Hoiska, who is not an attorney. Docketing Statement at § I

(confirming Appellant’s organizational status and its appearance pro se) and § X

(stating “N/A” for Tjalling Hoiska’s State Bar number); Affidavit of Tjalling P.

Hoiska at ¶ 2 (testifying that Tjalling Hoiska is Appellant’s president).

In Texas, a corporation must be represented by a licensed attorney, and it

cannot act pro se through a corporate officer who is not an attorney. Chavez v.

Pugh, No. 03-15-00395-CV, 2015 WL 5781113 at *1 n.1 (Tex. App.—Austin Oct.

2, 2015, no pet.) (mem. op.) (noting corporation’s president could not represent

corporation pro se); Rose Air, LLC v. Brazoria County Appraisal Dist., No. 01-13-

01085-CV, 2014 WL 2538630 at *1 (Tex. App.—Houston [1st Dist.] June 5, 2014,

no pet.) (mem. op.) (dismissing limited liability company’s appeal because it was

not represented by counsel); MHL Homebuilder LLC v. Dabal/Graphic Resource,

No. 14-05-00295-CV, 2005 WL 1404475 at *1 (Tex. App.—Houston [14th Dist.]

June 16, 2005, no pet.) (mem. op.) (same).

Because Appellant is not represented by counsel, the Court should dismiss

Appellant’s appeal.

4 PRAYER

Based on the foregoing, Appellee Ultra Electronics Advanced Tactical

Systems, Inc. respectfully requests that the Court grant its Motion to Dismiss

Appeal and enter an order dismissing Appellant’s appeal and taxing all costs

against Appellant.

Respectfully submitted,

/s/ Jeffrey J. Hobbs JEFFREY J. HOBBS State Bar No. 24012837 jhobbs@abaustin.com MARK L. HAWKINS State Bar No. 00790843 mhawkins@abaustin.com ANDREW F. YORK State Bar No. 24066318 ayork@abaustin.com ARMBRUST & BROWN, PLLC 100 Congress Avenue, Suite 1300 Austin, Texas 78701 (512) 435-2300 – telephone (512) 435-2360 – facsimile ATTORNEYS FOR APPELLEE

CERTIFICATE OF CONFERENCE I hereby certify that the undersigned counsel for Appellee conferred with Tjalling Hoiska, Appellant’s president, regarding the foregoing motion, and Mr. Hoiska has stated that Appellant opposes the motion.

/s/ Jeffrey J. Hobbs Jeffrey J. Hobbs

5 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served by electronic filing and electronic mail to the following on November 16, 2015:

Tjalling P. Hoiska Airlinx Communications, Inc. Box 253 Greenville, NH 03048 thoiska@airlinx.com