Laurie Poe v. Omni Flow Computers, Inc.

ACCEPTED 14-15-00674-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 8/11/2015 3:25:54 PM CHRISTOPHER PRINE CLERK

NO. 14-15-00674-CV Tr Ct No. 2014-33603 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS FOR THE 8/11/2015 3:25:54 PM FOURTEENTH DISTRICT OF TEXAS CHRISTOPHER A. PRINE Clerk

LAURIE POE,

Plaintiff - Appellant,

v.

OMNI FLOW COMPUTERS, INC.

Appellee.

APPELLEE OMNI FLOW COMPUTERS, INC.’S RESPONSE TO APPELLANT’S OPPOSED MOTION TO EXTEND THE DEADLINE TO FILE APPELLANT’S NOTICE OF APPEAL

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS:

Appellee/Defendant Omni Flow Computers, Inc. (“Appellee”) files this Response to Appellant/Plaintiff Laurie Poe’s (“Appellant”) Opposed Motion to Extend the Deadline to File Appellant’s Notice of Appeal and would respectfully show the Court of Appeals as follows:

I.

Appellant filed her underlying lawsuit against Omni on June 11, 2014 in the 11th Judicial District Court of Harris County, Texas (“Trial Court”). On June 23, 2015, the Trial Court granted Appellee’s Motion for Summary Judgment and dismissed the underlying lawsuit in its entirety with prejudice. See Exhibit 1. In particular, the Trial Court granted Appellee’s Motion for Summary Judgment, inter alia, because Appellant failed to timely file her lawsuit in accordance with TEX. LAB. CODE § 61.062(b). See Exhibit 2. Accordingly, Appellant was required to file a notice of appeal on or before July 23, 2015. TEX. R. APP. P. 26.1. Appellant did not file a notice of appeal until August 5, 2015. See Exhibit 3. Therefore, Appellant’s Notice of Appeal is untimely and should be dismissed.

II.

A party must file a notice of appeal with the clerk of the district court within 30 days after the judgment is signed in order to timely perfect an appeal. TEX. R. APP. P. 26.1. Here, Appellee did not file her Notice of Appeal until August 5, 2015, 43 days after the date of the Summary Judgment Order. See Exhibit 3. Therefore, Appellant’s Notice of Appeal was filed untimely and this appeal should be dismissed.

Rule 26.3 of the Rules of Appellate Procedure allows an appellate court to extend the time to file a notice of appeal if, within fifteen days after the notice is *3 due, the appellant files their notice of appeal with the trial court and files a Rule 10.5(b) motion to extend time with the appellate court. TEX. R. APP. P. 26.3. The appellant must still provide a reasonable explanation for why an extension of time is necessary. See Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex. App.–Houston [1st Dist.] 1999, no pet.). In the present case, Appellant’s explanation in her Motion is not reasonable, but instead demonstrates the continued pattern of untimely filings and constant delays by Appellant. Specifically, the Trial Court granted Appellee’s Motion for Summary Judgment, inter alia, because Appellant failed to timely file her lawsuit in accordance with TEX. LAB. CODE § 61.062(b). See Exhibit 2. Therefore, Appellant should not be allowed to profit from her constant delays, and this appeal should be dismissed.

PRAYER

For all of the foregoing reasons, Appellee prays that the Court deny Appellant’s Motion to Extend the Deadline to File Appellant’s Notice of Appeal, dismiss Appellant’s appeal, and for all such other and further relief to which Appellee may show itself to be justly entitled.

Respectfully submitted,

GORDON & REES, LLP

By: /s/ Glenn R. LeMay Glenn R. LeMay State Bar No. 12188690 glemay@gordonrees.com Joseph W. DiCecco State Bar No. 05812520 jdicecco@gordonrees.com Andrew M. Scott State Bar No. 24075042 ascott@gordonrees.com 1900 West Loop South, Suite 1000 Houston, Texas 77027 (713) 961-3366 – Telephone (713) 961-3938 – Facsimile

ATTORNEYS FOR APPELLEE

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document was duly served upon the following on this the 11th day of August, 2015, as follows:

Linda Leeser By Email: lindaleeser@hotmail.com LAW OFFICE OF LINDA LEESER 8800 Broadway St., Suite 210 San Antonio, Texas 78217

Ben J. Raia By Email: bjroffice@gmail.com BEN J. RAIA & ASSOCIATES, PLLC 306 S. Friendswood Drive, Unit C Friendswood, Texas 77546

/s/ Glenn R. LeMay GLENN R. LEMAY

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