Miguel Zaragoza Fuentes v. Evangelina Lopez Guzman Zaragoza

Opinion

ACCEPTED 01-15-00818-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/29/2015 4:10:11 PM CHRISTOPHER PRINE CLERK

NO. 01-15-00818-CV ______________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FIRST JUDICIAL DISTRICT 12/29/2015 4:10:11 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE ______________________________________ Clerk

MIGUEL ZARAGOZA FUENTES, Appellant,

v.

EVANGELINA LOPEZ GUZMAN ZARAGOZA, Appellee. ______________________________________

On Appeal from the 245th Judicial District Court of Harris County, Texas Trial Court No. 2014-30215 ______________________________________

APPELLANT’S SECOND MOTION TO EXTEND TIME TO FILE BRIEF ______________________________________

TO THE HONORABLE FIRST COURT OF APPEALS:

Appellant, Miguel Zaragoza Fuentes, pursuant to Texas Rules of Appellate

Procedure 38.6(d) and 10.5(b), requests this Court to extend time to file his brief in

this cause for an additional thirty (30) days:

1. This is an appeal from an interlocutory order granting injunctions and

other temporary orders in a suit for divorce. The trial court signed the order at

issue on September 2, 2015. Appellant filed a notice of appeal on September 24, 2015.1 While the present appeal has been pending, the district court conducted a

trial on the merits in the underlying case, which occurred on November 2-5, 2015.

The district court recently signed a final judgment on December 21, 2015.

2. The reporter’s record was filed October 6, 2015. The clerk’s record

was filed October 29, 2015.

3. Appellant’s brief was originally due November 30, 2015. Appellant

filed a motion to extend time to file his brief up to and including December 30,

2015. Appellee opposed the motion and this Court granted the requested relief.

Appellant’s brief is currently due December 30, 2015.

4. When this Court granted Appellant’s motion for an extension of time

to file his brief, the Court also stated that “no futher extensions will be granted

absent exceptional circumstances.” As explained, a material circumstance has

occurred since this Court extended the brief deadline because the district court has

now signed a final judgment. Appellant’s counsel is currently evaluating whether

the signing of a final judgment in the underlying case moots the instant proceeding.

For judicial economy and related reasons, Appellant prefers to not burden the

Court and the parties with unnecessary briefing or other work if it is ultimately

determined that the case in this Court is moot.

1 Appellant alternatively requests the Court to treat this appeal as a mandamus proceeding. See CMH Homes v. Perez, 340 S.W.3d 444, 452-53 (Tex. 2011). 2 5. This is Appellant’s second motion for extension of time to file his

brief and Appellant requests an additional thirty (30) day extension, up to and

including Friday January 29, 2016, in which to file his brief. Appellant’s counsel

is mindful of the Court’s admonishment contained in its November 30, 2015 order

granting the first extension of time, and has accordingly given this case priority.

However, counsel is of the considered opinion that the intervening entry of final

judgment is an “exceptional circumstance” justifying this second motion for

extenstion of time because it may impact this Court’s jurisdiction.

6. Appellant seeks this extension not for delay, but to allow counsel

sufficient time to determine whether this proceeding is moot, in whole or in part,

and to prepare a concise brief to assist with the Court’s decision making.

PRAYER

For the above reasons, Appellant, Miguel Zaragoza Fuentes, respectfully

requests this Court to grant an extension of time to file his brief up to and including

January 29, 2016. Appellant further requests general relief.

3 Respectfully submitted,

CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY

By: /s/ Kevin Jewell Kevin D. Jewell State Bar No. 00787769 1200 Smith Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 658-1818 Telecopier: (713) 658-2553

ATTORNEYS FOR APPELLANT

CERTIFICATE OF CONFERENCE

The undersigned counsel for Appellant conferred with counsel for Appellee by email on December 29, 2015 and Appellee’s counsel is opposed to the relief sought in this motion.

/s/ Kevin Jewell Kevin D. Jewell

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Motion to Extend Time to File Brief has been forwarded to all parties and/or attorneys of record by the means indicated below, on this 29th day of December, 2015:

Via electronic service: Jeanne Caldwell McDowell Rebekah H. Birdwell The Law Offices of Jeanne Caldwell McDowell 603 Avondale Houston, Texas 77006

4 Via electronic service: Mary Olga Lovett Greenberg Traurig, L.L.P. 1000 Louisiana, Suite 1700 Houston, Texas 77002

Via electronic service: J. Lindsey Short Adam J. Morris Short Carter Morris 1177 West Loop South, Suite 700 Houston, Texas 77027-9016

Via electronic service: Stewart W. Gagnon Fulbright & Jaworski LLP 1301 McKinney, Suite 5100 Houston, Texas 77010-3095

Via electronic service: Ricardo L. Ramos 440 Louisiana Street, Suite 1450 Houston, Texas 77002