Andrew J. Norstrud v. Anna and John Cicur

• Court: Court of Appeals of Texas
• Decided: December 29, 2014
• Docket: 02-14-00364-CV
• Status: Published

Opinion

ACCEPTED 02-14-00364-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 12/29/2014 4:25:10 PM DEBRA SPISAK CLERK

NO. 02-14-00364-CV ________________________________________________________________________ IN THE COURT OF APPEALS FILED IN 2nd COURT OF APPEALS SECOND COURT OF APPEALS DISTRICTFORT WORTH, TEXAS FORT WORTH, TEXAS 12/29/2014 4:25:10 PM ________________________________________________________________________ DEBRA SPISAK ANDREW J. NORSTRUD, Clerk

Appellant,

V.

ANNA and JOHN CICUR Appellees.

Appeal from the 153rd Judicial District Court of Tarrant County, Texas Trial Court Cause No. 153-273779-14 The Honorable Susan Heywood McCoy, Presiding Judge

MOTION FOR EXTENSION OF TIME TO FILE BRIEF ON THE MERITS

DYKEMA GOSSETT PLLC

/s/ Kristina M. Williams Christopher D. Kratovil State Bar No. 24027427 ckratovil@dykema.com Kristina M. Williams State Bar No. 24078303 kwilliams@dykema.com 1717 Main Street, Suite 4200 Dallas, Texas 75201 (214) 462-6400 (214) 462-6401 (fax)

ATTORNEYS FOR APPELLANT ANDREW J. NORSTRUD TO THE HONORABLE SECOND COURT OF APPEALS:

Appellant Andrew J. Norstrud (“Appellant”) respectfully requests

a twenty (20)-day extension of time, until and through Tuesday, February

3, 2015, under Tex. R. App. P. 10.5(b), to file his Brief on the Merits in this

proceeding. In support of this Motion, Appellant shows as follows:

I. Background

Appellant filed Defendant’s Verified Special Appearance in the 153rd

Judicial District Court of Tarrant County, Texas (the “Trial Court”) on

September 15, 2014. See Tex. R. Civ. P. 120a. Respondent filed Plaintiff’s

Verified Response to Defendant’s Verified Special Appearance on October

23, 2014. A hearing was held on Appellant/Defendant’s Verified Special

Appearance on October 24, 2014, at which time Hon. Susan Heywood

McCoy entered an Order Overruling Special Appearance.

Appellant/Defendant filed a Request for Findings of Fact and

Conclusions of Law in the Trial Court on November 10, 2014. Tex. R. Civ.

P. 297. Appellant also filed a Notice of Appeal in the Trial Court on

November 12, 2014, see Tex. R. App. P. 26.1, and completed a Docketing

Statement in this Court on November 21, 2014, see Tex. R. App. P. 32.1.

The record was filed in this Court on November 24, 2014, and under

1 Tex. R. App. P. 38.6(a), Appellant’s Brief was initially due on Monday,

December 15, 2014.

Appellant filed an Unopposed Motion for Extension of Time to File

Brief on the Merits with this Court on November 24, 2015. See Tex. R.

App. P. 10.5(b). Counsel for Appellees represented that while they

opposed Appellant/Defendant’s Request for Findings of Fact and

Conclusions of Law, they did not oppose the instant Motion for Extension

of Time. This Court granted Appellant’s Motion on December 2, 2014, and

Appellant’s Brief is currently due on Wednesday, January 14, 2015.

Appellant/Defendant filed Notice of Past Due Findings of Fact and

Conclusions of Law with the Trial Court on December 9, 2014. See Tex. R.

Civ. P. 297. On December 19, 2014, Appellees/Plaintiffs filed Proposed

Findings of Fact and Conclusions of Law with the Trial Court, despite

their prior assertion that they opposed Appellant/Defendant’s Request for

Findings of Fact and Conclusions of Law. The Trial Court signed initial

Findings of Fact and Conclusions of Law on December 22, 2014, which are

the subject of the instant interlocutory appeal.

II. Reasons Extension of Time

Appellant seeks an extension of time to file his Brief on the Merits

because Hon. Susan Heywood McCoy entered Findings of Fact and

2 Conclusions of Law on December 22, 2014, and as of the date of this

Motion, the period in which the parties may request additional or

amended findings and the Trial Court may make such additional or

amended filings has just begun, and the substance of Appellant’s Brief on

the Merits, which is currently due on Wednesday, January 14, 2015, is

contingent upon these findings and conclusions.

Despite Appellees’ counsel’s representation that he opposed

Appellant/Defendant’s Request for Findings of Fact and Conclusions of

Law when Appellant filed his initial Motion for Extension of Time to File

Brief on the Merits, on November 24, 2014, Appellees filed Proposed

Findings of Fact and Conclusions of Law in the Trial Court on Friday,

December 19, 2014. This recent filing was Appellees’ first attempt to

engage the Trial Court in making Findings of Fact and Conclusions of Law

to accompany its Order Overruling Defendant’s Verified Special

Appearance, nearly two months after the hearing on same and nearly a

month after the Trial Court’s initial deadline of November 24, 2014, to

issue Findings of Fact and Conclusions of Law passed.

The Trial Court entered initial Findings of Fact on December 22,

2014. Under Tex. R. Civ. P. 298, the parties have the opportunity to

request additional findings of fact or amendments, and the Trial Court

3 may issue additional or Amended Findings of Fact. See SMI/USA, Inc. v.

Profile Techs., 38 S.W.3d 205, 209 (Tex. App.—Waco 2001, no pet). The

Trial Court must file any additional or amended findings of fact no later

than ten days after the date of the request for additional findings is filed.

Tex. R. Civ. P. 298. Thus, the Trial Court’s Findings of Fact and

Conclusions of Law, if issued, may not be finalized and helpful for the

instant appeal until Monday, January 12, 2015, at the earliest, assuming

other delay does not occur.

So that the Trial Court’s Findings of Fact and Conclusions of Law

will be finalized before Appellant must file his Brief on the Merits before

this Court, Appellant respectfully requests a twenty (20)-day extension of

time, until and through Tuesday, February 3, 2015, under Tex. R. App. P.

10.5(b), to file his Brief on the Merits in this proceeding.

III. Request for Extension of Time and Prayer

For the foregoing reasons, Appellant respectfully requests that the

time to file its Brief on the Merits be extended twenty (20) days from

January 14, 2015, until and including Tuesday, February 3, 2015. Tex. R.

App. P. 10.5(b). This relief is not sought for the purpose of delay, but so

that justice may be done in the disposition of this interlocutory appeal.

4 Respectfully submitted,

/s/ Kristina M. Williams Christopher D. Kratovil State Bar No. 24027427 Kristina M. Williams State Bar No. 24078303 1717 Main Street, Suite 4200 Dallas, Texas 75201 (214) 462-6400 - Telephone (214) 462-6401 - Facsimile

COUNSEL FOR APPELLANT ANDREW J. NORSTRUD

5 CERTIFICATE OF CONFERENCE

In accordance with the Texas Rules of Appellate Procedure, I

certify that I attempted to confer via email with Counsel to the

Appellees, Jeff Whitfield of Kelly Hart & Hallman, on December 29,

2014, but counsel for Appellees failed to respond. Therefore, the Motion

is presumed to be opposed and is presented to the Court for resolution.

/s/ Kristina M. Williams Kristina M. Williams

6 CERTIFICATE OF SERVICE

certify that a true and correct copy of this MOTION FOR

EXTENSION OF TIME TO FILE BRIEF ON THE MERITS was

served upon the following counsel of record, by regular mail and this

Court’s electronic filing system on December 29, 2014:

Hugh G. Connor Michael D. Anderson Jeff E. Whitfield Kelly Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102