Eric E. Perez and Edmundo Perez v. Le Prive Enterprise, L.L.C. D/B/A Mekano Live & Grill and Manuel Arellano

• Court: Court of Appeals of Texas
• Decided: April 8, 2015
• Docket: 14-15-00291-CV
• Status: Published

Opinion

ACCEPTED 14-15-00291-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 1:20:02 PM CHRISTOPHER PRINE CLERK

NO. 14-15-00291-CV

In The FILED IN 14th COURT OF APPEALS

Fourteenth Court of Appeals HOUSTON, TEXAS 4/8/2015 1:20:02 PM CHRISTOPHER A. PRINE Houston, Texas Clerk

Eric E. Perez and Edmundo Perez, Appellants, v. Le Prive Enterprises, LLC d/b/a Mekano Live & Grill, and Manuel Arellano, Appellees.

On Appeal from the 127th Judicial District Court of Harris County, Texas Trial Court Cause No. 2013-74140

APPELLEESʼ MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION

Daniel W. Jackson, SBN 00796817 Scott K. Vastine, SBN 24056469 Jennifer H. Frank, SBN 24087537 The Jackson Law Firm 3900 Essex Lane, Suite 1116 Houston, Texas 77027 (713) 522-4435 (713) 527-8850 – fax Counsel for Appellees TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

Appellees Le Prive Enterprises, LLC, d/b/a Mekano Live & Grill and

Manuel Arellano respectfully request that appellants Eric E. Perez and

Edmundo Perezʼs motion to extend time be denied and their appeal be

dismissed for want of jurisdiction. Tex. R. App. P. 10.5(b)(1)(C),

42.3(a), (c).

On December 18, 2014, the trial court entered final judgment. On

January 19, 2015, appellants filed a motion for reconsideration and motion

for new trial, which were set for an oral hearing on March 27, 2015, but

were overruled by operation of law on March 3, 2015. Appellantsʼ deadline

to perfect an appeal was March 18, 2015.

Appellants filed their notice of appeal on April 1, 2015. Appellants

also filed a motion for extension of time on the same day, but failed to

provide a single fact explaining their need for an extension as required by

Rule 10.5(b)(1)(C) of the Texas Rules of Appellate Procedure. Because

appellantsʼ motion to extend time does not comply with Rule 10(b)(1)(C), it

should be denied and this appeal should be dismissed. Tex. R. App. P.

42.3(c).

2 A reasonable explanation is one demonstrating that failure to comply

with the deadline to perfect appeal was not deliberate or intentional but,

rather, the result of inadvertence, mistake, or mischance. Garcia v. Kaster

Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).

For example, when an appellant filed a motion to extend time

containing no explanation to justify late filing of the notice of appeal, this

Court denied the motion to extend time for lack of good cause and

dismissed the appeal for want of jurisdiction. Mukwange v. Metro Transit

Auth., No. 14-00-01068-CV, 2000 WL 1356527, at *1 (Tex. App.—Houston

[14th Dist.] 2000, no pet.).

Because appellantsʼ motion to extend time failed to provide any

explanation to justify late filing, as did the motion to extend time in

Mukwange, the Court should deny appellantsʼ motion to extend for failure to

comply with Rule 10.5(b)(1)(C) of the Texas Rules of Appellate Procedure

and dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(a), (c).

WHEREFORE, appellees Le Prive Enterprises, LLC, d/b/a Mekano

Live & Grill and Manuel Arellano respectfully request that appellants Eric E.

Perez and Edmundo Perezʼs appeal be dismissed.

3 Respectfully submitted:

/s/ Daniel W. Jackson Daniel W. Jackson, SBN 00796817 Scott K. Vastine, SBN 24056469 Jennifer H. Frank, SBN 24087537 3900 Essex Lane, Suite 1116 Houston, Texas 77027 (713) 522-4435 (713) 527-8850 – fax daniel@jacksonlaw-tx.com scott@jacksonlaw-tx.com jennifer@jacksonlaw-tx.com

Counsel for Appellees

CERTIFICATE OF CONFERENCE

I certify that I attempted to confer with appellantsʼ counsel by written

correspondence and voicemail, but have not heard from appellantsʼ

counsel concerning this motion. Therefore, I presume appellants are

opposed to the relief sought in this motion.

/s/ Jennifer H. Frank Jennifer H. Frank

4 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing document was served on all counsel of record, via ProDocs, on April 8, 2015:

James Nathan Overstreet J. Nathan Overstreet & Assoc., P.C. 8711 Highway 6 North, Suite 230 Houston, Texas 77095

Via email: overstreetlawfirm@gmail.com

/s/ Daniel W. Jackson Daniel W. Jackson