Elishah Sawyers, Pax Crate & Freight, Inc. and Robin Sawyers v. Marc Carter and Sally Carter

ACCEPTED 01-14-00870-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 4/7/2015 2:09:11 PM CHRISTOPHER PRINE CLERK

No. 01-14-00870-CV

FILED IN 1st COURT OF APPEALS In the Court of Appeals HOUSTON, TEXAS For the First District of Texas 4/7/2015 2:09:11 PM CHRISTOPHER A. PRINE Houston, Texas Clerk

Elishah Sawyers; Pax Freight & Crate, Inc.; and Robin Sawyers, Appellants vs.

Mark Carter and Sally Carter, Appellees

Appeal from the 506th Judicial District Court of Waller County, Texas Trial Court Cause No. 14-07-22604

APPELLEES’ MOTION TO STRIKE APPELLANTS’ RESTRICTED NOTICE OF APPEAL

Mr. Bruce C. Tough State Bar No. 20151500 Tough Law Firm, PLLC 819 Crossbridge Drive Spring, Texas 77373 btough@toughlawfirm.net telephone: (281) 681-0808 telecopier: (281) 281-0809 Lead Counsel for Appellees Mark Carter and Sally Carter

No. 01-14-00870-CV

In the Court of Appeals For the First District of Texas Houston, Texas

Elishah Sawyers; Pax Freight & Crate, Inc.; and Robin Sawyers, Appellants vs.

Mark Carter and Sally Carter, Appellees

Appeal from the 506th Judicial District Court of Waller County, Texas Trial Court Cause No. 14-07-22604

APPELLEES’ MOTION TO STRIKE APPELLANTS’ RESTRICTED NOTICE OF APPEAL

TO THE HONORABLE FIRST COURT OF APPEALS:

NOW COME Appellees, Mark and Sally Carter, to file this motion to strike the restricted notice of appeal and, in support thereof, the Appellees would respectfully show the Court as follows:

1. Appellants filed a notice of appeal on October 27, 2014 and have now also filed a notice of restricted appeal on March 27, 2015.

2. Texas Rules of Appellate Procedure 26.1(c) provide the requirements for a party to prevail in a restricted appeal: (1) it filed notice of the restricted appeal within six months after the final judgment was signed; (2) it was a party to the underlying litigation; (3) it did not participate in the underlying proceedings and did not timely file any post-judgment motions; and (4) error is apparent on the face of the record.

3. The deadline for the filing of the restricted notice of appeal was March 12, 2015, six months after the date on which the judgment was signed on September 12, 2014. Id. Appellants did not file their restricted notice of appeal until March 27, 2014. The six-month time limit is mandatory and jurisdictional. Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)1.

3. Furthermore, an ordinary appeal and restricted appeal may not be pursued simultaneously. Zepeda v. Giraud, 880 S.W.2d 833, 834 - 835 (Tex. App. San Antonio 1994) (An appeal by writ of error from a default judgment in a civil suit was dismissed for want of jurisdiction because appellant had previously perfected an ordinary appeal, which was dismissed by the court and not abandoned by appellant.)

1 This case concerned a writ of error proceeding filed in 1996 under the former Texas Rules of Appellate Procedure. “Writ of error” appeals have been replaced by “restricted” appeals under the current Texas Rules of Appellate Procedure. See Tex. R. App. P. 30.

3. For the foregoing reasons, appellees request that the Court strike the notice of restricted appeal and grant all other relief to which Appellees are entitled.

Respectfully submitted,

TOUGH LAW FIRM, PLLC

/s/ Bruce C. Tough Bruce C. Tough btough@toughlawfirm.net email State Bar No. 20151500 819 Crossbridge Drive Spring, Texas 77373 (281) 681-0808 telephone (281) 681-0809 telecopy Lead Counsel for Appellees Mark Carter and Sally Carter

Certificate of Conference On April 7, 2015, as required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I or my office conferred with Scott Rothenberg, attorney for Appellants, about the merits of this motion and he stated he opposes the motion.

/s/ Bruce C. Tough Bruce C. Tough

Certificate of Service

I hereby certify that a true and correct copy of the foregoing document has been forwarded by e-filing and e-service to all lead counsel of record, on this 7th day of April, 2015, as follows:

Scott Rothenberg LAW OFFICES OF SCOTT ROTHENBERG 2777 Allen Parkway, Suite 1000 Houston, Texas 77019-2165 (713) 667-0052 telecopier scott@rothenberglaw.com email Counsel for Appellants Elishah Sawyers; Pax Freight & Crate, Inc.; and Robin Sawyers /s/ Bruce C. Tough Bruce C. Tough