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

Opinion

ACCEPTED 03-15-00637-CV 7997231 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/25/2015 3:59:34 PM JEFFREY D. KYLE CLERK COURT OF APPEALS NO. 03-15-00637 -CV

TRIAL COURT CASE NO. D-1-GN-12-002873 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS AIRLINX COMMUNICATIONS, INC. § COURT OF APPEALS 11/25/2015 3:59:34 PM § JEFFREY D. KYLE § Clerk Appellant, § v. § § THIRD DISTRICT OF § TEXAS ULTRA ELECTRONICS ADVANCED § TACTICALSYSTEMS, INC. § § Appellee. § TRAVIS COUNTY, TEXAS

APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO DISMISS APPEAL

TO THE HONORABLE THIRD COURT OF APPEALS:

A. AIRLINX's president Tjalling Hoiska stated by affidavit on November 12,

2015 at 1}3 that "The Notice of Appeal for this trial court case was

mailed to the district clerk's office on or before August 14, 2015."

The affidavit tracked exactly what the Court of Appeals asked for in its

November 3, 20151etter at 1}2. Under Rule 9.2(b)(2) of the Texas Rules

of Appellate Procedure, the court "may consider other proof" of the date

of mailing. So the Court asked for "other proof' and the Appellant

provided it. The Appellee cannot disprove the Appellant's affidavit. The

1 APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO DISMISS APPEAL Appellee's accusation is unsubstantiated and uncalled for so the

Appellant respectfully asks the court to disregard it and consider the

Notice of Appeal filed timely.

B. The Appellant's trial attorney will not continue his fee agreement to

completion. That fact coupled with an adverse arbitration award

prejudiced the Appellant's ability to gain other legal representation. The

Appellant has spent much time trying to retain counsel to represent it.

However, insofar as the case's ministerial tasks are concerned including

filing the Notice of Appeal, the Appellant's president and sole

owner/shareholder has the authority to perform such tasks for his

company even though it is an incorporated small business. Kunstoplast

of Am., Inc. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex.

1996) ("We hold, however, that Texas Rules of Appellate Procedure

40(a)(1) and 41 (a)(1) do not preclude a nonlawyer from performing the

specific ministerial task of depositing cash with a clerk in lieu of a cost

bond.")

Tjalling Hoiska, president and sole owner/shareholder respectfully

requests the right to represent his small business pro se because he

owns it 100%. No one else will be hurt by Tjalling Hoiska's

2 APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO DISMISS APPEAL representation of his own interest. If the court will not grant Tjalling

Hoiska the right to represent his small business, then he respectfully

asks the court for an extension of time to retain counsel to represent the

small business in addition to any other extensions of time. As alternate

relief at least 45 days is requested to retain counsel.

Lastly, the Appellant's first brief is due on December 3, 2015. The

Appellant respectfully requests that this brief's deadline be extended by

45 days from this date or 90 days from this date if the Appellant is

required to retain counsel.

PRAYER

Based on the foregoing, Appellant AIRLINX Communications, Inc.

respectfully requests that the Court deny the Appellee's Motion to

Dismiss Appeal and enter an order dismissing the Appellee's Motion to

Dismiss Appeal and taxing all costs against Appellee.

Respectfully submitted,

~({?.~ Tjalling Ho1ska (thoiska@airlinx.com) AIRLINX Communications, Inc. (Appellant) Box 253 Greenville, NH 03048 Tel: (603) 291-0433

Date: Nt>VeJ11ke..-t 2-...'i, 2015 3 APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO DISMISS APPEAL CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

instrument, Appellant's Response to Appellee's Motion to Dismiss Appeal, was

delivered via efile on November 25, 2015 to the following:

Attorneys for the Defendant

Mark L. Hawkins (MHawkins@abaustin.com) Jeffrey J. Hobbs (JHobbs@abaustin.com) Andrew F. York (ayork@abaustin.com) Armbrust & Brown, PLLC 100 Congress Ave., Suite 1300 Austin, Texas 78701 -2744 (512) 435-2371 - Direct Dial (512) 435-2360- Facsimile

·~Y~ T JALLING HOISKA

Date: No\f® ke.r-25 , 2015

4 APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO DISMISS APPEAL