Zimac Care Center Inc., and Virginia Akuchie v. Ngozi Nweze

Opinion

ACCEPTED

01-15-00716-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/3/2015 4:57:22 PM

CHRISTOPHER PRINE

CLERK

NO.01-15-00716-CV

IN THE FILED IN 1st COURT OF APPEALS

HOUSTON, TEXAS

FIRST COURT OF APPEALS

12/3/2015 4:57:22 PM

CHRISTOPHER A. PRINE

AT HOUSTON, TEXAS Clerk

ZIMAC CARE CENTER, INC., VIRGINIA AKUCHIE, ET AL, Appellants,

V.

NGOZINWEZE

Appellee

On Appeal from the 127th Judicial District Court Harris County, Texas

Cause No. 2011-52006

APPELLANTS' RESPONSE TO APPELLEE'S MOTION TO DISMISS

Respectfully submitted,

/s/Kurt G. Clarke

Kurt G. Clarke

SBN: 04316720

6200 Savoy, Ste. 458

Houston, Texas 77036

Tel: (713) 779-5500

Fax: (713) 779-6668

E-mail: kgclaw@aol.com

Attorney for Appellants

NO.01-15-00716-CV

IN THE

FIRST COURT OF APPEALS

AT HOUSTON, TEXAS

ZIMAC CARE CENTER, INC., VIRGINIA AKUCHIE, ET AL, Appellants,

V.

NGOZINWEZE

Appellee

On Appeal from the 127th Judicial District Court Harris County, Texas

Cause No. 2011-52006

APPELLANTS' RESPONSE TO APPELLEE'S MOTION TO DISMISS

TO THE HONORABLE COURT OF APPEALS:

COME NOW, ZIMAC CARE CENTER, INC., VIRGINIA AKUCHIE, ET AL, Appellants in the above styled and numbered case and and file this response to Appellee's Motion to Dismiss and would respectfully show as follows:

BACKGROUND

1. The trial court signed a final judgment on May 1, 2015.

2. Appellants filed a Motion for New Trial on May 29, 2015.

3. In prosecuting its Motion for New Trial, Appellants sought a date as soon as practicable.

4. A hearing was required for a date prior to August 2015 at 10:30 a.m. See Exhibit A attached hereto.

5. The Trial Court ruled on the Motion for New Trial on August 7,2015. See Exhibit B.

ANALYSIS

This case presents a fairly novel question and that is whether the trial court on August 7, 2015 had lost plenary power to rule on Appellants' motion for new trial and if it did, what is the practitioner's dilemma. Should the practitioner have filed a notice of appeal, and then request an abatement for the trial court to make its ruling. In hindsight, it would have been procedurally prudent to do so.

However, it will also appear that had Appellants requested leave or an extension of time to notice the appeal, Appellants would have had until August 20, 2015 to do so. The Notice of Appeal was filed on August 18,2015.

This Court should allow the appeal because there was no conscious disregard, nor willful neglect and this Court has the authority to allow Appellants leave to late file their notice of appeal, which leave Appellants now seek for then.

This Court should allow the appeal.

WHEREFORE, PREMISES CONSIDERED, Appellants, pray that this appeal be allowed.

Kurt G. Clarke

IslKurt G. Clarke

Kurt G. Clarke

SBN: 04316720

6200 Savoy, Suite 458

Houston, Texas 77036

Phone: (713) 779-5500

Fax: (713) 779-6668

E-mail: kgdaw@aol.com.

Attorney for Appellants

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded on this the 3rd day of December, 2015, either by E-service provider, telecopier, first class mail, certified mail, return receipt requested and/or by messenger to:

Robin A. Bluitt

11152 Westheimer #671

Houston, Texas 77042

Fax # (713) 978-6064

E-mail: atty.bluitt@sbcglobal.net

/s/ Kurt G. Clarke

Kurt G. Clarke

LAW OFFICES

OF

KURT G. CLARKE

ATTORNEY~ MEDIATOR~ ARBITRATOR

KURT G. CLARKE* FREDERICK O. BOADU HELEN MALVEAUX COUNSEL TO THE FIRM

June 3, 2015

Ms. Susan Brooks Clerk 127th District Court Harris County, Texas

Re: Cause No. 2011-52006; Ngozi Nweze v. Zimac Care Center Inc. Et al;

In the 127th District Court, Harris County, Texas

Dear Ms. Brooks:

Kindly present Defendants' Emergency Motion to Judge Sandill's attention for consideration.

Thank you for your usual cooperation and assistance in this matter.

Sincerely,

Kurt G. Clarke c.c.: Robin Bluitt

6200 SAVOY DRIVE, SUITE 458, HOUSTON, TEXAS 77036 PHONE (713) 779-5500 FAX (713) 779-6668 "FELLOW - COLLEGE OF THE STATE BAR

6/3/20156:41 :48 PM

Chris Daniel - District Clerk Harris County Envelope No. 5537449

By: Susan Brooks

Filed: 6/3/2015 6:41:48 PM

CAUSE NO. 2011-52006

NGOZINWEZE § IN THE DISTRICT COURT (PETITIONER) § §

VS. § 127THJUDICIAL COURT §

ZIMAC CARE CENTER INC., § VIRGINIA AKUCHIE, § GERTUDE CLEVELAND, § and FAITH BATE § (DEFENDANTS) § HARRIS COUNTY, TEXAS

DEFENDANT'S MOTION FOR EMERGENCY HEARING ON MOTION FOR NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Defendants Virginia Akuchie and Zimac Care Center Inc. (Zimac) et aI, and file this Motion for Emergency Hearing on its Motion for New Trial and would respectfully show the Court as follows:

J.

1. The above case was tried in January 2015. 2. This Court entered Judgment on May 1,2015. 3. Defendants filed a Motion for New Trial on May 29, 2015. 4. Defendants desire to have a hearing on the Motion for New Trial. 5. Defendants were advised that the next available hearing date based on the Court's schedule is August 7, 2015. 6. Defendants request this hearing because August 7,2015 will be ninety-eight (98) days post judgment and will deprive Defendants of any opportunity to obtain a rehearing. 7. If this case can be assigned to a visiting Judge prior to the end of June, Defendants will have no

2

objection. 8. In the alternative, Defendants ask the Court to set this matter for hearing as soon as practicable and prior to June 30, 2015 II.

9. For these reasons, and in the interest of justice and fairness, Defendants ask the Court to conduct a hearing, receive evidence and after the hearing grant a new trial.

Respectfully submitted,

IslKurt G. Clarke

Kurt G. Clarke

SBN: 04316720

6200 Savoy, Ste. 458

Houston, Texas 77036

Tel: (713) 779-5500

Fax: (713) 779-6668

E-mail: kgc1aw@aol.com

Attorney for Defendants

3

CERTIFICATE OF CONFERENCE I hereby certify that I have discussed this motion on June 3, 2015, with attorney Robin Bluitt and she is opposed to Defendants obtaining a new trial.

/s/ Kurt G. Clarke

Kurt G. Clarke

4

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded on this the 3rd day of June, 2015, either by telecopier, first class mail, certified mail, return receipt requested and/or by messenger to:

Robin A. Bluitt

7457 Harwin Dr. # 232

Houston, Texas 77036

Served Via Fax # (713) 978-6064 & E-mail: atty.bluitt@sbcglobal.net

/s/ Kurt G. Clarke

Kurt G. Clarke

CAUSE NO. 2011-52006

NGOZINWEZE § IN THE DISTRICT COURT (PETITIONER) § §

VS. § 127TH JUDICIAL COURT §

ZIMAC CARE CENTER INC., § VIRGINIA AKUCHIE, § GERTUDE CLEVELAND, § and FAITH BATE § (DEFENDANTS) § HARRIS COUNTY, TEXAS

ORDER GRANTING EMERGENCY HEARING Came on this day, Defendants' Motion for Emergency Hearing on its Motion for New Trial. This Court, having considered the Motion, finds that the Motion should be granted.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT a hearing on Defendants' Motion for new trial be set for ----------------- , 2015.

Signed this the __ day of , 2015.

Judge Presiding

APPROVED AS TO FORM:

IslKurt G. Clarke

Kurt G. Clarke 6200 Savoy, Suite 458 Houston, Texas 77036 Tel. (713) 779-5500 Fax. (713) 779-6668

CHRIS DANIEL

District Clerk

Houston, Texas 77002

KU~~ GODFREY CLARKE SAVOY DR SUITE 458 "ON TX 77036

CASE 2011C",:'006 CRT 127 BE ADVISED ON 08/07/2015 THE FOLLOWING ACTIVITY OCCURRED. NWEZE, 11(; I Oms) vs. ZIMAC CARE CENTER INC ORnER ~ "NG MOTION FOR NEW TRIAL SIGNED

CA::E 2CJ55 CRT 157 BE ADVISED ON 08/07/2015 THE FOLLOWING ACTIVITY OCCURRED. BAILEY I' ii IE LEMONS (INDIVIDUALLY AND VS. CHRISTUS HEALTH GULF COAST ORDER G:U ING OBJECTION TO DISCOVERY REQUEST SIGNED

JlHOC