ACCEPTED
06-14-00102-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/2/2015 4:48:55 PM
DEBBIE AUTREY
CLERK
No. 06-14-00102-CV
FILED IN
JOHNNY E. WEBB § 6th COURT OF APPEALS
TEXARKANA, TEXAS
§
2/2/2015 4:48:55 PM
APPELLANT, §
DEBBIE AUTREY
§ Clerk
VS. § Appeal from Cause No. DC-14-09393
§ 95th Judicial District Court
ALEX RODRIGUEZ, ET AL § Dallas County, Texas
§ Hon. Judge Kenneth Molberg, III
APPELLEES. §
RESPONSE REGARDING SHOW CAUSE
TO THE HONORABLE JUSTICES OF THE SIXTH APPELLATE DISTRICT:
Pursuant to the Court’s January 23, 2015 letter noticing what appeared to be
a defect in the record, Appellant submits this response. The final appealable order,
dated September 23, 2014 has been filed with the Court in the supplemental record
submitted by the trial court clerk on January 26, 2015. Appellant submits that this
Court has jurisdiction because he timely filed his notice of appeal within the time
required from the date of the final order granting the appellee’s motion to transfer
venue or, in the alternative, to dismiss. In support of this response, Appellant
submits the following:
I.
If a motion for new trial or other specified post-judgment motion is timely
filed, the notice of appeal is due within ninety (90) days after the judgment is
signed. See TEX. R. APP. P. 26.1(a)(1)–(4). A motion for reconsideration is a
post-judgment motion that extends the appellate deadlines if timely filed. See TEX.
R. CIV. P. 392b(g) (stating that motions to modify, correct, or reform a judgment
extend the trial court’s plenary power); Lane Bank Equip. Co. v. Smith S. Equip.,
Inc., 10 S.W.3d 308, 310 (Tex. 2000) (holding that any post-judgment motion, no
matter what it is called, will extend plenary power if it seeks a substantive change
in the judgment and is filed within the time limits for a motion for new trial). A
motion that extends the appellate deadlines must be filed within thirty days after
the judgment or other order complained of is signed. TEX. R. CIV. P. 329b(a)
(providing a thirty day deadline to file a motion for new trial).
In the instant case, the trial court entered a final appealable order on
September 23, 2014. Appellant timely filed a motion for reconsideration on
October 8, 2014. Because appellant filed a motion for reconsideration, his notice
of appeal was due 90 days after the judgment was signed. See Tex. R. App. P.
26.1. Thus, appellant’s notice of appeal was due on December 22, 2014. Appellant
timely filed his notice of appeal on December 2, 2014.
II.
Because there is now a final appealable order in the record, and Appellant
timely filed his notice of appeal, Appellant submits that this Court has jurisdiction
over this appeal.
Respectfully submitted,
/s/Darrell J. O’Neal
DARRELL J. O’NEAL
TN State Bar No. 20927
2129 Winchester Road
Memphis, Tennessee 38116
(901) 345-8009 office
(901) 345-8014 fax
domemphislaw@aol.com
/s/Melvin Houston
MELVIN HOUSTON
MELVIN HOUSTON & ASSOCIATES
TX State Bar No. 00793987
1776 Yorktown St., Ste. 350
Houston, Texas 77056
(713) 212-0600 office
(713) 212-0290 fax
mhouston@gotellmelcom
Attorneys for the Appellant
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon the following
counsel of record via the court system’s electronic filing manager and system on
this the 2nd day of February, 2014:
Andrew K. York
Gray Reed & McGraw
1601 Elm Street, Suite 4600
Dallas, Texas 75201
(214) 954-4135
(214) 953-1332 (Fax)
dyork@grayreed.com
Attorney for Defendants Lucien Tujague, Jr., and Dominion Gas Holdings, LP
Bryan Stevens
Hallett & Perrin, PC
1445 Ross Avenue, Ste 2400
Dallas, TX 75202
BStevens@hallettperrin.com
Attorney for Defendants Shuk Holdings, LLC and IDT Energy, Inc.
Mark L. Johansen
Rafael C. Rodriguez
Gruber Hurst Johansen Hail Shank LLP
1445 Ross Avenue, Suite 2500
Dallas, TX 75202
mjohansen@ghjhlaw.com
rrodriguez@ghjhlaw.com
Attorneys for Defendant Alex Rodriguez
/s/Darrell J. O’Neal
DARRELL J. O'NEAL