Keith Wiley v. Hocutt, Inc.

• Court: Court of Appeals of Texas
• Decided: October 9, 2015
• Docket: 03-15-00619-CV
• Status: Published

Opinion

ACCEPTED 03-15-00619-CV 7321479 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/9/2015 8:57:49 PM JEFFREY D. KYLE CLERK IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS FILED IN 3rd COURT OF APPEALS KEITH WILEY § AUSTIN, TEXAS § 10/9/2015 8:57:49 PM Plaintiff § JEFFREY D. KYLE § Clerk vs. § 03-15-00619-CV § HOCUTT, INC. § § Defendant. §

DEFENDANT HOCUTT, INC.’S MOTION TO DISMISS INTERLOCUTORY APPEAL OF PLAINTIFF

TO THE HONORABLE JUDGE OF SAID COURT:

Comes Now, Hocutt, Inc., one of the Defendants in the above-styled case,

and files this Motion to Dismiss Interlocutory Appeal filed by Plaintiff Keith

Wiley and would should the Court the following:

I.

By Order dated September 11, 2015, the 201st District Court of Travis

County, Texas granted Defendant Hocutt, Inc.’s Traditional and No Evidence

Motion for Summary Judgment.

On or about October 1, 2015, Plaintiff Keith Wiley filed a Motion for an

Interlocutory Appeal and an Interlocutory Appeal. The Court has no Jurisdiction

for this appeal. The Motion for an Interlocutory Appeal sited Texas Rules of

Appellant Procedure 168(c) as the basis for his Motion. Defendant would assert

DEFENDANT HOCUTT, INC.’S MOTION TO DISMISS INTERLOCUTORY APPEAL OF PLAINTIFF PAGE 1 herein that no such rule of Appellant Procedure exists and therefore Plaintiff has no

basis for the filing of his Motion.

Further, Plaintiff’s Interlocutory Appeal sites that it is filed pursuant to

Texas Civil Practice and Remedies Code 51.014; however, upon review of Civil

Practice and Remedies Code §51.014, the summary judgment granted in favor of

Defendant Hocutt, Inc. in this case does not meet any of the specific criteria set

forth in §51.014. The Court may only exercise jurisdiction over final judgments or

orders that are otherwise appealable. Lehman v. Har-Con Corp., 39 S.W.3d 191,

195, 205 (Tex. 2001).

Accordingly, Defendant herein moves the Court to deny Plaintiff’s Motion

for an Interlocutory Appeal and dismiss Plaintiff’s Interlocutory Appeal, and for

such other and further relief to which it may be justly entitled.

Respectfully submitted,

NEAL P. FLAGG, P.C.

By: /s/ Neal P. Flagg NEAL P. FLAGG State Bar No.: 07102500 7 Innisbrook Court Frisco, Texas 75034 Telephone: (214) 727-9941 Facsimile: (972) 722-5307 Email: neal@nealflagglaw.com

ATTORNEY FOR DEFENDANT HOCUTT, INC.

DEFENDANT HOCUTT, INC.’S MOTION TO DISMISS INTERLOCUTORY APPEAL OF PLAINTIFF PAGE 2 CERTIFICATE OF CONFERENCE

Defendant attempted to contact Plaintiff Keith Wiley to discuss the contents

of this Motion but was unsuccessful and/or unable to reach agreement about the

contents of the Motion.

/s/ Neal P. Flagg NEAL P. FLAGG

DEFENDANT HOCUTT, INC.’S MOTION TO DISMISS INTERLOCUTORY APPEAL OF PLAINTIFF PAGE 3 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing has

been forwarded on this 9th day of October, 2015 to the following:

Via E-Service and Email Keith Wiley 1714 Rutland Drive, #318 Austin, Texas 78758 Plaintiff, Pro-Se

DEFENDANT HOCUTT, INC.’S MOTION TO DISMISS INTERLOCUTORY APPEAL OF PLAINTIFF PAGE 4