Southwest Pipe Services, Inc and Joe Briers v. Sunbelt Rentals, Inc.

Opinion

ACCEPTED 01-15-00124-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/10/2015 9:34:24 PM CHRISTOPHER PRINE CLERK

CAUSE NO. NO. 01-15-00124-CV

IN THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1st COURT OF APPEALS 8/10/2015 9:34:24 PM CHRISTOPHER A. PRINE HOUSTON Clerk

___________________

SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS

Appellant

vs.

SUNBELT RENTALS, INC.

Appellees

__________________________________

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ APPELLANT’S REPLY BRIEF _______________________________________

Jason A. Powers SBOT 24027745 P.O. Box 272425 Houston, Texas 77277 Tele: (832) 647-8493 Fax: (832) 415-0593 jason@jasonapowers.com

APPELLANT REQUESTS AN ORAL ARGUMENT CAUSE NO. NO. 01-15-00124-CV

IN THE

1st COURT OF APPEALS

HOUSTON ___________________

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ IDENTITIES OF PARTIES COUNSEL _______________________________________

Jason A. Powers ORLANDO & ORLANDO SBOT 24027745 Monica Schulz Orlando P.O. Box 272425 440 Louisiana, Ste 1110 Houston, Texas 77277 Houston, Texas 77002 Tele: (832) 647-8493 Tele: (713) 521-0800 Fax: (832) 415-0593 Fax: (713) 521-0842 jason@jasonapowers.com monicaorlando@orlandollp.com ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES

ii TABLE OF CONTENTS TABLE OF AUTHORITIES

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ APPELLANT’S REPLY BRIEF _______________________________________

Appellants, Southwest Pipe Services, Inc. and Joe Briers submits their brief. Appellants will be referred to as Appellants or SWP. Appellees will be referred to as Appellees or Sunbelt.

iii I. ARGUMENT & AUTHORITIES

Sunbelt filed a Motion for Summary Judgment (First Motion) on July 21, 2014

and set the Motion for oral hearing on September 3, 2014. SWP responded to

Sunbelt’s First Motion, and in response, Sunbelt passed the hearing and reset the First

Motion to October 7, 2014 per correspondence dated September 3, 2014.

On September 19, 2014 Sunbelt filed an Amended Motion for Summary

Judgment (Second Motion), attempting to correct the errors complained of in SWP’s

Response. The Second Motion was set for hearing on November 12, 2014. SWP filed

a response to the Second Motion that mimicked the Response to the First Motion,

except for the objection of the lack of the business records affidavit that was made in

the response to the First Motion. Sunbelt filed no reply or objection to SWP’s

response to the First Motion or the Second Motion.

On December 12, 2014, Appellant filed a Motion for New Trial on multiple

grounds including error due to the court not considering the response filed by the

Appellant.

There is no reason that (1) the Appellant shouldn’t be granted leave to file its

response late and (2) the late response was the same response as was filed to the first

motion for summary judgment. Appellant asks this Court to either grant leave and

allow Appellant’s response to stand or in the alternative, allow the first response to be

considered as a timely response to the second motion. It is very unfair that Appellee

4 had the ability to file multiple motions to correct its mistake and yet Appellants have

no recourse for a calendaring mistake. Appellees were on notice of Appellant’s claims

from the first response.

III. PRAYER

WHEREFORE, PREMISES CONSIDERED, Southwest Pipe Service, Inc.,

Appellant, prays that this Honorable Court reverse the Trial Court’s ruling granting

summary judgment, remand this matter back to the trial court, allowing Rodney

Beshears to remain a responsible third party.

5 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief was delivered to all counsel of record on the 10th day of August, 2015 via Certified U.S. Mail, return receipt requested and/or via electronic service in accordance with the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure. The documents were delivered to: ORLANDO & ORLANDO, Monica Schulz Orlando, 440 Louisiana, Ste 1110, Houston, Texas 77002; monicaorlando@orlandollp.com

________________________________ Jason A. Powers State Bar No. 24027745 jason@jasonapowers.com

6 CAUSE NO. NO. 01-15-00124-CV

APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ SIGNATUTRE PAGE _______________________________________

7 This Brief is respectfully submitted by:

JASON A. POWERS, ATTORNEY

______________________________________ Jason A. Powers SBOT 24027745 P.O. Box 272425 Houston, Texas 77277 Tele: (832) 647-8493 Fax: (832) 415-0593 jason@jasonapowers.com Attorney for Appellants

THIS BRIEF CONTAINS _724_ WORDS