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

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 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.

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 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.

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 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

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 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

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