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

Court of Appeals of Texas·Decided December 3, 2015·No. 01-15-00716-CV·Published

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,

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,

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,

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:

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

1 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.

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

2 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.

3 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

4 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:

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

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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,

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,

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,

c.c.: Robin Bluitt

CAUSE NO. 2011-52006

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:

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

1 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.

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

2 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.

3 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

4 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:

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

Zimac Care Center Inc., and Virginia Akuchie v. Ngozi Nweze, (Tex. Ct. App. 2015).

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