ACCEPTED
01-14-00779-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/27/2015 2:09:06 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00779-CV
In the Court of Appeals FILED IN
First Judicial District of Texas 1st COURT OF APPEALS
HOUSTON, TEXAS
Houston, Texas 2/27/2015 2:09:06 PM
___________________________________CHRISTOPHER A. PRINE
Clerk
POINTE WEST CENTER, LLC
Appellant,
vs.
IT’S ALIVE, INC. AND SHAMIL QURESHI
Appellees/Cross-Appellants,
__________________________________________________________________
Appeal from County Civil Court at Law No. 1
Harris County, Texas
Cause No. 1022800
__________________________________________________________________
APPELLEES/CROSS-APPELLANTS’ FIRST MOTION FOR EXTENSION
OF TIME FOR THIRTY DAYS TO FILE BRIEF
__________________________________________________________________
To the Honorable Court of Appeals:
It’s Alive, Inc. and Shamil Qureshi, Appellees/Cross-Appellants ask the
Court to grant an extension of time of thirty days to file their Cross-Appellants’
Brief. This is the First Motion to Extend Time for Filing their Brief filed on behalf
of these parties.
1
1. Appellant is Pointe West Center, LLC (“Pointe West”).
Appellees/Cross-Appellants are It’s Alive, Inc. and Shamil Qureshi (hereinafter
referred to as “It’s Alive and Qureshi”)
2. The Trial Court (Harris County Civil Court at Law No.1) signed the
Final Judgment on June 18, 2014. The Final Judgment awarded Appellant
damages in the amount of Fifteen Thousand Dollars ($15,000.00) for damages to
the leased premises by It’s Alive. The Judge refused to grant Appellant’s Motion
for Judgment N.O.V. to award Appellant damages of an additional Five Thousand
Dollars ($5,000.00) as holdover rent and failed to award Appellant attorney’s fees
of approximately Fifty Thousand Dollars ($50,000.00).
3. After the Appellant’s Motion for Judgment N.O.V. and Motion for
Reconsideration were denied, Pointe West filed its Notice of Appeal on September
17, 2014.
4. On September 23, 2014, It’s Alive and Qureshi filed their notice of
appeal. This notice of appeal was timely pursuant to TRAP 26.1(d) because the
Notice of Appeal was filed within fourteen days after the Appellant Pointe West
Plaintiff filed its Notice of Appeal. At trial It’s Alive and Qureshi had moved
for an instructed verdict on the basis that Pointe West had not presented legally
sufficient evidence of its reasonable cost of repair damages and therefore no
award of damages should have been entered in favor of Pointe West. It’s Alive
2
and Qureshi have filed their cross-appeal contesting the award of damages in
the Judgment to Appellant.
5. On February 25, 2015, the Court of Appeals granted Pointe West’s
motion to extend the time for the filing of its Appellant’s Brief to February 23,
2015. As a result, It’s Alive and Qureshi’s Appellees’ Brief is due March 25,
2015.
6. Appellees’ counsel had intended to raise Appellees’ cross-appeal
issues in their appeal by cross-points. However, it is not clear to Appellees’
counsel whether these issues should be raised in Appellees’ brief as cross-points or
whether these issues should be raised in a separate brief as Cross-Appellant. In
Byrd v. Estate of Nelms, 154 S.W.3d 149, 165 (Tex. App.—Waco 2004, pet.
denied) the Court of Appeals noted that the Texas Rules of Appellate Procedure do
not clearly delineate when a cross-appellant must file its brief raising issues on a
cross-appeal. The Court of Appeals noted that if both parties had presented
themselves as appellants it would have presented the possibility of confusion with
respect to the references to the parties in the opinion. The Court of Appeals
decided to exercise their discretion and allow the appellee in that case to have its
cross-appeal point to be considered by cross-point in the appellee’s brief.
7. Out of an abundance of caution, It’s Alive and Qureshi request that
the time for filing Appellees/Cross-Appellants’ Brief on its appeal be extended by
3
thirty days so that Appellees/Cross-Appellants’ Appellees’ Brief and Cross-
Appellants’ Brief would be due at about the same time. Alternatively, if the Court
of Appeals determines that Appellees/ Cross-Appellants should include their cross-
appeal issues as cross-issues in its Appellees’ Brief, then Appellees/Cross-
Appellants will file one brief on or before March 25, 2015.
Appellees/Cross-Appellants request that the Court of Appeals grant this
Motion to Extend Time for filing of Appellees/Cross-Appellants’ Appellants’ Brief
until March 25, 2015, or alternatively, order that Appellees/Cross-Appellants may
raise their cross-appeal points as cross-points in their Appellees’ Brief, or for such
other and further relief to which they may be entitled.
Respectfully submitted,
DUNN, NEAL & GERGER, L.L.P.
By: ____/s/ James A. Dunn _____________
James A. Dunn
Texas Bar No. 06244800
3006 Brazos Street
Houston, Texas 77006
Tel.: (713) 403-7405
Fax.: (713) 960- 0204
Email: jdunn@dnglegal.com
Attorney for Appellees/Cross
Appellants
4
CERTIFICATE OF CONFERENCE
On February 24, 2015, Appellant’s Counsel, Spencer E. Dunn, indicated he
was not opposed to this Motion to Extend Time for Filing Brief for thirty days.
___/s/ James A. Dunn ____________
James A. Dunn
CERTIFICATE OF SERVICE
I certify that on February 27, 2015, a true and correct copy of the foregoing
instrument was served on Appellant’s counsel, Spencer E. Dunn, 4669 Southwest
Freeway, Suite 760, Houston, Texas 77027, by electronic service through the e-
filing case manager in accordance with the Texas Rules of Civil Procedure.
______/s/ James A. Dunn___
James A. Dunn
5