Grace Instrument Industries, LLC v. Melden Schmidt and OFI Testing Equipment, Inc.

Opinion

ACCEPTED 14-15-00269-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/19/2015 2:08:26 PM CHRISTOPHER PRINE CLERK

NO. 14-15-00269-CV

FILED IN IN THE COURT OF APPEALS 14th COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH JUDICIAL DISTRICT 5/19/2015 2:08:26 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

GRACE INSTRUMENT INDUSTRIES, LLC, Appellant, FILED IN 14th COURT OF APPEALS v. HOUSTON, TEXAS 5/19/2015 2:08:26 PM MELDEN SCHMIDT and OFI TESTING EQUIPMENT, INC., CHRISTOPHER A. PRINE Clerk Appellees.

On Appeal from the 1 l 3th Judicial District Court of Harris County, Texas Trial Court No. 2014-33726

APPELLEES, MELDEN SCHMIDT AND OFI TESTING EQUIPMENT, INC.'S, MOTION TO EXTEND TIME TO FILE APPELLEES' BRIEF

Appellees, Melden Schmidt and OFI Testing Equipment, Inc., pursuant to

Texas Rules of Appellate Procedure 38.6(d) and 10.S(b), request this Court extend

the time to file their Appellees' brief in this cause for sixty (60) days, until July 21,

2015, and would show as follows: CERTIFICATE OF CONFERENCE

Appellees' counsel conferred with Appellant's counsel prior to filing this

motion. Appellant is opposed to the extension Appellees request herein.

PROCEDURAL HISTORY

Proceedings in Trial Court

1. On March 2, 2015, the 113th Judicial District Court of Harris County,

Texas, signed an interlocutory order granting Appellees' Motion for No-Evidence

Summary Judgment in Cause No. 2014-33726; Grace Instrument Industries, LLC

v. Me/den Schmidt and OF! Testing Equipment, Inc. By its order, the trial court

dismissed all of Appellant's claims against Appellees. Appellees' counterclaims

against Appellant remain pending before the trial court.

2. On April 1, 2015, Appellant filed its motion for permission to appeal the

trial court's Interlocutory Summary Judgment in the trial court, which

Appellant titled "Motion for Interlocutory Appeal."

3. On April 23, 2015, Appellees filed their response m opposition to

Appellant's motion for permission to appeal. Thereafter, on April 24, 2015,

Appellant filed its reply.

2 4. On April 27, 2015, the trial court denied, 1n its entirety, Appellant's

motion for permission to appeal. 1

Proceedings in Appellate Court

5. In addition to its motions in the trial court, Appellant also improperly filed

an untimely notice of appeal on March 23, 2015. Appellant then filed a Motion

for Extension of Time to File Application for Interlocutory Appeal on April 2,

2015. 2 This Court denied Appellant's Motion on April 20, 2015.

6. Furthermore, on April 21, 2015, the Clerk of this Court notified the

parties by letter that, "[a]ccording to the clerk's record, the judgment or order

being appealed is not a final, appealable judgment. The court will consider

dismissal of the appeal on its own motion for want of jurisdiction unless any

party files a response on or before May I, 2015, showing meritorious grounds

for continuing the appeal."

7. On April 27, 2015, consistent with the Court's order, Appellees filed their

Motion to Dismiss Appellant's appeal for lack of jurisdiction. In their Motion, and

1 Concurrently with this Motion, Appellees have also filed a Supplement to their Motion to Dismiss notifying this Court that the trial court denied Appellant's request to appeal the interlocutory order. As this Court is aware, for a court of appeals to consider whether to permit the appeal of an interlocutory order that is not otherwise appealable, a trial court, on its own initiative or on a party's motion, must first grant permission to appeal the interlocutory order. TEX. R. APP. P. 28.3(a) & cmt.; TEX. R. Clv. P. 168 & cmt.; see TEX. CIV. PRAC. & REM. CODE §51.014(d). Thus, where, as here, the trial court denies permission to seek an interlocutory appeal, this Court should dismiss the appeal. 2 Notably, by its own request, Appellant admits it appeals an interlocutory order. 3 surely consistent with the Clerk's own observation, Appellees explained this Court

lacks jurisdiction over the appeal because the trial court's order did not dispose of

all issues between all parties and thus, was not a final appealable judgment.

8. Inexplicably, that same day, Appellant filed its appellate brief, wherein it

argued the merits of its appeal, but wholly failed to identify any jurisdictional

basis for the appeal, notwithstanding the Court's clear request for briefing on

the jurisdictional basis for Appellant's appealing a judgment which is not final.

After Appellant filed its brief, the Court set a deadline of May 22, 2015 for

Appellees to file their brief.

REQUEST FOR EXTENSION

9. As it currently stands, Appellees brief is due May 22, 2015. However,

Appellant has not responded to Appellees' Motion to Dismiss or provided this

Court with a sufficient jurisdictional basis for its appeal as ordered. As this

Court's ruling on Appellees' jurisdictional challenges could negate the need for

Appellees' brief, Appellees request this Court extend Appellees' deadline to file

their brief in order to give this Court an opportunity to consider whether it has

jurisdiction over Appellant's appeal.

10. This is Appellees' first motion for extension of time to file their brief and

Appellees request a sixty (60) day extension, up to and including Tuesday, July 21,

2015, in which to file their brief.

4 11. Even if it the Court finds inappropriate for Appellee to incur the otherwise

and obviously unnecessary expense of the preparation and filing of a brief in an

appeal where the Court is unquestionably without jurisdiction, Appellee requires

an extension because of intervening trial settings that will otherwise preclude

Appellee from submitting its brief by the current, May 22, 2015, deadline.

Specifically, these include trial in the matter styled Hobart v. City ofStafford, et al,

Cause Number 9-cv-03332, in the United States District Court for the Southern

District of Texas, which will begin trial on May 26, 2015 and is expected to last at

least one week as well as the matter styled Diamond-Brooks v. Berryman, Cause

Number l 2-cv-03482, in the United States District Court for the Southern District

of Texas, which is scheduled to begin trial immediately upon the conclusion of the

Hobart trial. Additionally, while not binding upon this Court Appellee's counsel

has a vacation letter on file with the Harris County District Clerk, in accordance

with the Harris County District Courts' vacation procedures for a family vacation

between June 13 and June 20, 2015.

8. In order to allow this Court an opportunity to determine whether there

is jurisdiction over this appeal at all and to allow Appellee's counsel reasonable

time to prepare and file a responsive brief, if necessary, Appellees seek this

extension not for delay, but so that justice may be done.

5 PRAYER

Appellees pray that the Court grant their motion and extend the time to file

their brief by sixty (60) days, up to and including, Tuesday, July 21, 2015.

Respectfully submitted,

CHAMBERLAIN, HRDLICKA, WIDTE WILLIAMS & AUGHTRY

By: Isl William S. Hel{and William S. Helfand State Bar No. 09388250 Bill.Helfand@Chamberlainlaw.com Josh N. Bowlin State Bar No. 24036253 Josh.Bowlin@Chamberlainlaw.com 1200 Smith Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 658-1818 Telecopier: (713) 658-2553

COUNSEL FOR APPELLEES MELDEN SCHMIDT AND OFI TESTING EQUIPMENT, INC.

6 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record on this 19th day of May, 2015, in the manner indicated below:

Via E-Filing Alfonso Kennard, Jr. Ronald Dupree Jr. Kennard Law P.C. 5433 Westheimer Rd., Suite 825 Houston, Texas 77056 Fax: 713-742-0951 Isl Josh N Bowlin 1900700.1 120691 .. 000001