ACCEPTED
14-14-00788-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/19/2015 7:51:10 AM
CHRISTOPHER PRINE
CLERK
No. 14-14-00788-CV
COURT OF APPEALS
FILED IN
FOURTEENTH DISTRICT OF TEXAS 14th COURT OF APPEALS
AT HOUSTON, TEXAS HOUSTON, TEXAS
1/20/2015 8:00:00 AM
CHRISTOPHER A. PRINE
Clerk
EXERGY DEVELOPMENT GROUP OF IDAHO, LLC and JAMES T.
CARKULIS,
Appellants
v.
HIGHER POWER ENERGY, LLC, BLUE RENEWABLE ENERGY, LLC
and BLACK MOUNTAIN FINANCIAL CORP.,
Appellees.
Restricted Appeal from Cause No. 2012-67104
125th Judicial District Court ofHarris County, Texas
Han. Kyle Carter, Presiding
APPELLEE'S RESPONSE TO APPELLANTS'
MOTION TO REINSTATE APPEAL
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Higher Power Energy, LLC, Appellee herein and Plaintiff in Trial Court
Number 2012-67104, respectfully submits this Response to Appellants' Motion to
Reinstate Appeal, and shows as follows:
1. · Higher Power Energy, LLC respectfully submits that the Motion to
Reinstate Appeal this proceeding that has been filed by Appellants Exergy
Pagelof4
Development Group of Idaho, LLC and James T. Carkulis should be denied.
Specifically; this Motion should be denied for one or more of the following
reasons:
a. Back on October 1, 2014 this Honorable Court advised James
Carkulis, by way of letter that he was copied on, that the filing
fee that was associated with this Appeal was "due" and that
"payment arrangements" concerning this Appeal would need to
be made;
b. On October 14, 2014 this Honorable Court issued a Notice (to-
Carkulis) advising that the filing fee associated with this Appeal
had (still) not been paid, and that if this fee was not paid by
October 24,2014 the Appeal may be dismissed;
c. On October 30, 2014 this Honorable Court issued an Order
finding that the filing fee had (still) not been paid;
d. On that same date, this Honorable Court issued a Notice (that
Carkulis was copied on) specifically referencing payment for
the Clerk's Record;
e. On October 19, 2014 this Honorable Court sent notice to
Carkulis and counsel of record for Appellants (Seth Kretzer,
Esq.) advising that arrangements to pay for the Clerk's Record
Page2 of4
had not been made, that such arrangements must be made
within 15 days from that date, and that proof of payment must
be provided to this Court by that date;
f. Pursuant to the Notice referenced above, these payment
arrangements had to be made - and proof of payment had to be
tendered to this Honorable Court - by December 4, 2014.
They were not;
g. The Appellants did not make arrangements to pay for the
Clerk's Record until January 13, 2015 - five (5) weeks after
same was to be done (pursuant to the Court's November 19,
2014 Notice), and after this Honorable Court had dismissed
this Appeal.
2. The facts set forth above, and others that will be provided to this
Court (in the unlikely event that this Court elects to grant the Motion to Reinstate
Appeal) illustrate the complete, utter disregard that the Appellants have exhibited
for the parties in this case, the law applicable to this case, rulings made by the trial
court, and Notices/Orders that have been issued by this Honorable Court
throughout the course ofthis matter.
WHEREFORE, PREMISES CONSIDERED, Appellee Higher Power
Energy, LLC respectfully prays that this Response be received and filed and, upon
Page 3 of4
consideration, that the Appellants' Motion to Reinstate Appeal this case be denied
and for such further relief, both at law and in equity, to which it may show itself
justly entitled.
Respectfully submitted,
FEE, SMITH, SHARP & VITULLO,
L.L.P
HOWARDJ.KLATSKY
State Bar No. 00786024
Three Galleria Tower
13155 Noel Road, Suite 1000
Dallas, Texas 75240
(972) 934-9100
(972) 934-9200 [Fax]
hklatsky@feesmith.com
ATTORNEY FOR APPELLEE
HIGHER POWER ENERGY, LLC
CERTIFICATE OF SERVICE
Tms WILL CERTIFY that a true and correct copy of the foregoing instrument
has been mailed, teleco~i~ or hand delivered to all attorneys of record in this
cause of action on the J ~y ofJanuary, 2015, as follows:
ViaCMRRE Via First Class Mail
James T. Carkulis Andrew M. Edison
14 West 40th Street, 4th Floor Edison, McDowell & Hetherington, LP
Helena, Montana 59601 3200 Southwest Freeway, Suite 2100
Houston, TX 77027
~--? >'""'(,..<...<- -
HOWARD J. KLATSKY
Page 4 of4
Exergy Development Group of Idaho, LLC and James T. Carkulis v. High Power Energy, LLC
Combined Opinion