ACCEPTED
01-15-00473-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/29/2015 11:41:28 AM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00473-CV
______________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS6/29/2015 11:41:28 AM
AT HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
______________________________________________________________
MICHELLE HEINRICH, MANDY SO and NAIM EL-ASWAD,
M.D., Individually and Derivatively as Members of
Victory’s Bioethical Anatomics, LLC and Victory’s
Advanced Centers for Surgical Education, LLC,
Appellants/Plaintiffs,
V.
STRASBURGER & PRICE, L.L.P., STUART FARRELL
MILLER, and JANA H. WOELFEL,
Appellees/Defendants.
______________________________________________________________
On Interlocutory Appeal From the 164th Judicial District Court
of Harris County, Texas, Cause No. 2013-74218
____________________________________________________________
APPELLANTS’/PLAINTIFFS’ REPLY IN
SUPPORT OF JURISDICTIONAL RESPONSE TO
COURT OF APPEALS’ JUNE 18, 2015, NOTICE
______________________________________________________________
FRED HAGANS VINCENT L. MARABLE III
KENDALL C. MONTGOMERY PAUL WEBB, P.C.
HAGANS BURDINE MONTGOMERY 221 N. Houston
& RUSTAY, P.C. Wharton, Texas 77488
3200 Travis, Fourth Floor Telephone: (979) 532-5331
Houston, Texas 77006 Telecopier: (979) 532-2902
Telephone: (713) 222-2700
Telecopier: (713) 547-4950
ATTORNEYS FOR APPELLANTS/ PLAINTIFFS MICHELLE HEINRICH, ET AL.
TO THE HONORABLE FIRST COURT OF APPEALS:
Appellants/Plaintiffs Michelle Heinrich, Mandy So and Naim El-Aswad,
M.D., Individually and Derivatively as Members of Victory’s Bioethical
Anatomics, LLC and Victory’s Advanced Centers for Surgical Education, LLC
(“Appellants”) file this Reply in Support of Response to Court of Appeals’ June
18, 2015, Notice as follows:
INTRODUCTION AND OVERVIEW
This Court issued a Notice dated June 18, 2015, which stated: “The
Court’s records indicate that Appellants’/Plaintiffs’ Petition for Permission to
Appeal Interlocutory Order filed with this Court on May 27, 2015 may not have
been timely. See, e.g., Inliner Americas, Inc. v. MaComb Funding Group,
L.L.C., 244 S.W.3d 427 (Tex. App.–Houston [14th Dist.] 2007, no pet.)”.
Appellants responded to the Notice on June 25, 2015. Appellees replied on
June 26, 2015. Appellants file this further response/reply on the jurisdictional
issue identified in the June 18, 2015, Notice.
As is evident from Appellants’ June 25, 2015, Response, Appellants do
not “concede that [their] petition was not filed within 15 days of the order to be
appealed” and do not concede that Tex. R. Civ. P. 168 was not satisfied. See
Appellees’ June 26, 2015, filing, p. 2, ¶¶ 1 and 3. The trial court amended its
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April 17, 2015, order on May 15, 2015, and the petition for permission to
appeal was filed on May 27, 2015, within the 15 day deadline.
The Federal Court of Appeals Practice Manual specifically recognizes
that a trial court’s order certifying a case for interlocutory appeal is usually
made in separate order issued after the substantive ruling.
Counsel are typically so preoccupied with the merits of a motion
that they do not address in their motion the question of whether
the district court should certify its ruling for interlocutory appeal.
Until the court actually rules, it may be hard to predict whether its
decision will even meet the criteria for such an appeal. If the
district court denies a motion due to unresolved factual issues, for
instance, the prospects for interlocutory appeal are slim. Hence,
more often than not, there is nothing to gain by asking for district
court certification before you know how the district court rules on
the merits of a motion. The appeal period does not start until the
district court enters an order containing the requisite certification,
so no appeal period is running while you wait to see how the
district court rules before deciding to seek certification.
When the court does rule on the merits of a motion, it may sua
sponte certify its order for interlocutory appeal. More often it will
not. At most, a judge may hint at his or her inclination to certify its
order for interlocutory appeal. In any event, if you want to appeal,
you will need to file a new motion asking the district court to
amend its order to include the certification required under section
1292(b).
David G. Knibb, Federal Court of Appeals Manual (6th ed.), Section 5:3 What
is the procedure and what are the tests for certification by the district court?
This Court should resolve the jurisdictional issue in favor of Appellants
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and proceed to the merits of the petition for permission to appeal.
Respectfully submitted,
HAGANS BURDINE MONTGOMERY &
RUSTAY, P.C.
By: /s/ Fred Hagans
Fred Hagans
State Bar No. 08685500
fhagans@hagans-law.com
Kendall C. Montgomery
State Bar No. 14293900
kmontgomery@hagans-law.com
3200 Travis, Fourth Floor
Houston, Texas 77006
(713) 222-2700
(713) 547-4950 Fax
PAUL WEBB, P.C.
Vincent L. Marable III
State Bar No. 12961600
trippmarable@sbcglobal.net
221 N. Houston St.
Wharton, Texas 77488-3821
(979) 532-5331
(979) 532-2902 Fax
ATTORNEYS FOR APPELLANTS/
PLAINTIFFS MICHELLE HEINRICH, ET
AL.
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CERTIFICATE OF SERVICE
I certify that on June 29, 2015, a true and correct copy of the above and
foregoing Appellants’/Plaintiffs’ Reply In Support Of Jurisdictional Response
To Court Of Appeals’ June 18, 2015, Notice was forwarded to all counsel of
record by the Electronic Filing Service Provider, if registered; a true and
correct copy of this document was forwarded to all counsel of record not
registered with an Electronic Filing Service Provider by certified mail return
receipt requested, addressed as follows:
Murray J. Fogler
Robert Ford
Fogler, Brar, Ford, O’Neil & Gray, LLP
711 Louisiana, Suite 500
Houston, Texas 77002
Attorneys for Appellees/Defendants
Strasburger & Price L.L.P., Stuart F.
Miller, and Jane H. Woelfel
Russell S. Post
Beck Redden LLP
1221 McKinney St., Suite 4500
Houston, Texas 77010
Attorneys for Appellees/Defendants
Strasburger & Price L.L.P., Stuart F.
Miller, and Jane H. Woelfel
/s/ Vincent L. Marable III
VINCENT L. MARABLE III
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CERTIFICATE OF COMPLIANCE
This Jurisdictional Reply consists of 666 words. This Jurisdictional
Reply was requested by the First Court of Appeals. For such reason,
undersigned counsel for Appellants does not believe that there is an
applicable word count limitation.
/s/ Vincent L. Marable III
VINCENT L. MARABLE III
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Michelle Heinrich, Mandy So and Naim El-Aswad, M.D., Individually and Derivatively as Members of Victory's Bioethical Anatomics, LLC and Victory's Advanced Centers for Surgical Education, LLC v. Strasburger & Price, L.L.P., Stuart Farrell Miller and Jana H. Woelfel
Combined Opinion