Microsoft Corporation// Michael Mercieca v. Michael Mercieca// Cross-Appellee, Microsoft Corporation

• Court: Court of Appeals of Texas
• Decided: May 7, 2015
• Docket: 14-15-00024-CV
• Status: Published

Opinion

ACCEPTED 14-15-00024-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/7/2015 12:33:17 PM CHRISTOPHER PRINE CLERK

No. 14-15-00024-CV FILED IN In the Fourteenth Court of Appeals 14th COURT OF APPEALS HOUSTON, TEXAS Houston, Texas 5/7/2015 12:33:17 PM CHRISTOPHER A. PRINE Clerk

MICROSOFT CORPORATION,

Appellant/Cross-Appellee V.

MICHAEL MERCIECA,

Appellee/Cross-Appellant

APPEAL FROM CAUSE NO. D-1-GN-11-001030 353RD JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS HON. TIM SULAK PRESIDING

AMENDED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE/CROSS-APPELLANT’S BRIEF BASED ON EXCEPTIONAL CIRCUMSTANCES

TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

Appellee/Cross-Appellant Michael Mercieca files this amended motion

requesting a 21-day extension of time for filing his opening brief in the above-

referenced appeal. Mercieca respectfully shows:

1. Appellant/Cross-Appellee Microsoft Corporation filed its opening

brief on February 23, 2015. Under the Court’s March 12, 2015 order granting the

parties’ Agreed, Joint Motion to Adopt Briefing Schedule and for Leave to Assert Cross-Points in Brief for Appellee (“Joint Motion”), Mercieca’s initial brief was

initially due on March 25, 2015. Mercieca received a subsequent 30-day extension

of that deadline until April 24, 2015.

2. On April 23, 2015, Mercieca filed a motion for extension of time

based on exceptional circumstances and asked for the deadline to be re-set until

Friday, May 8, 2015. The Court has not yet ruled on this motion, which is hereby

amended to seek a new deadline of Friday, May 15, 2015.

3. As stated in the original motion, the appellate record in this case is

immense. The clerk’s record and supplemental clerk’s record combined are more

than 1,950 pages. The reporter’s record and exhibits total more than 8,800 pages

and also include more than thirty audio files. The undersigned was not involved

before the post-verdict stage in the trial and therefore has been required to review

the record with great care to prepare what will effectively be two briefs in one.

4. This amended motion relies on exceptional circumstances as grounds

for the requested extension. Although counsel avoided making it public knowledge

until he filed the original motion, he has lost considerable time from work due to

an accident requiring surgery to repair comminuted humeral head fractures in both

shoulders. Counsel was in bilateral slings for eight weeks and is still in the process

of returning to ordinary work and life functions. In the meantime, physical therapy

sessions, electrical muscle stimulation, ultrasonic bone stimulation, and other

2 physical aspects of recovery have limited counsel’s availability for work tasks.

This situation has made successfully completing briefs and other labor-intensive

work exceptionally difficult.

5. Counsel submits this amended motion to raise an additional ground

that has arisen since filing the original. Upon consultation with his orthopedic

surgeon, counsel has been referred to a neurologist for testing to determine whether

nerve damage causing partial paralysis and severely limiting the range of motion

and essential function in his left shoulder is temporary or permanent. These tests

will be conducted on May 8, 2015. Because these tests will determine counsel’s

long-term prognosis and the course of treatment going forward, counsel needs to

give this appointment priority over all work matters.

6. Finally, though not an exceptional circumstance in and of itself, many

of the issues raised in appellant’s brief require more thorough responses than the

typical case. As a result, counsel needs more time than originally thought to ensure

that the brief fits within the word-count limits set out in the Court’s March 12,

2015 order. Despite the circumstances described above, the undersigned expects to

complete and file Appellee/Cross-Appellant’s opening brief within those limits and

within the time requested in this amended motion.

3 CONCLUSION AND PRAYER

For these reasons, Mercieca respectfully requests that the Court grant this

motion for extension of time, thus making his opening brief due on May 15, 2015.1

Mercieca requests all other appropriate relief to which he is entitled.

Respectfully submitted,

SMITH LAW GROUP, P.C.

/s/D. Todd Smith D. Todd Smith State Bar No. 00797451 1250 Capital of Texas Highway South Three Cielo Center, Suite 601 Austin, Texas 78746 (512) 439-3230 (512) 439-3232 (fax) todd@appealsplus.com

Lead Appellate Counsel for Appellee/Cross-Appellant, Michael Mercieca

1 Per the Court’s previous order:

• Microsoft’s response to Mercieca’s cross-appeal shall be due 30 days after Mercieca’s opening brief is filed (10,000-word limit); and

• Microsoft’s reply brief as appellant and Mercieca’s reply brief as cross-appellant shall be due 20 days after Microsoft’s response to Mercieca’s cross-appeal is filed (7,500-word limit for each brief).

4 CERTIFICATE OF CONFERENCE

In compliance with Texas Rule of Appellate Procedure 10.1(a)(5), I certify

that I conferred with appellant’s lead counsel, Gretchen Sween, about the original

motion. At the time, Ms. Sween informed me that appellant takes no position with

respect to the motion, and appellant has not filed an opposition.

/s/ D. Todd Smith D. Todd Smith

CERTIFICATE OF SERVICE

On May 7, 2015, in compliance with Texas Rule of Appellate Procedure 9.5,

I served this document by e-service and e-mail to:

Gretchen S. Sween BECK REDDEN LLP 515 Congress Avenue, Suite 1750 Austin, Texas 78701 gsween@beckredden.com

Lead Appellate Counsel for Appellant/Cross-Appellee, Microsoft Corporation

/s/D. Todd Smith D. Todd Smith