ACCEPTED
14-15-00024-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/7/2015 12:33:17 PM
CHRISTOPHER PRINE
CLERK
No. 14-15-00024-CV
FILED IN
In the Fourteenth Court of Appeals
14th COURT OF APPEALS
HOUSTON, TEXAS
Houston, Texas 5/7/2015 12:33:17 PM
CHRISTOPHER A. PRINE
Clerk
MICROSOFT CORPORATION,
Appellant/Cross-Appellee
V.
MICHAEL MERCIECA,
Appellee/Cross-Appellant
APPEAL FROM CAUSE NO. D-1-GN-11-001030
353RD JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS
HON. TIM SULAK PRESIDING
AMENDED MOTION FOR EXTENSION OF TIME
TO FILE APPELLEE/CROSS-APPELLANT’S BRIEF
BASED ON EXCEPTIONAL CIRCUMSTANCES
TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
Appellee/Cross-Appellant Michael Mercieca files this amended motion
requesting a 21-day extension of time for filing his opening brief in the above-
referenced appeal. Mercieca respectfully shows:
1. Appellant/Cross-Appellee Microsoft Corporation filed its opening
brief on February 23, 2015. Under the Court’s March 12, 2015 order granting the
parties’ Agreed, Joint Motion to Adopt Briefing Schedule and for Leave to Assert
Cross-Points in Brief for Appellee (“Joint Motion”), Mercieca’s initial brief was
initially due on March 25, 2015. Mercieca received a subsequent 30-day extension
of that deadline until April 24, 2015.
2. On April 23, 2015, Mercieca filed a motion for extension of time
based on exceptional circumstances and asked for the deadline to be re-set until
Friday, May 8, 2015. The Court has not yet ruled on this motion, which is hereby
amended to seek a new deadline of Friday, May 15, 2015.
3. As stated in the original motion, the appellate record in this case is
immense. The clerk’s record and supplemental clerk’s record combined are more
than 1,950 pages. The reporter’s record and exhibits total more than 8,800 pages
and also include more than thirty audio files. The undersigned was not involved
before the post-verdict stage in the trial and therefore has been required to review
the record with great care to prepare what will effectively be two briefs in one.
4. This amended motion relies on exceptional circumstances as grounds
for the requested extension. Although counsel avoided making it public knowledge
until he filed the original motion, he has lost considerable time from work due to
an accident requiring surgery to repair comminuted humeral head fractures in both
shoulders. Counsel was in bilateral slings for eight weeks and is still in the process
of returning to ordinary work and life functions. In the meantime, physical therapy
sessions, electrical muscle stimulation, ultrasonic bone stimulation, and other
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physical aspects of recovery have limited counsel’s availability for work tasks.
This situation has made successfully completing briefs and other labor-intensive
work exceptionally difficult.
5. Counsel submits this amended motion to raise an additional ground
that has arisen since filing the original. Upon consultation with his orthopedic
surgeon, counsel has been referred to a neurologist for testing to determine whether
nerve damage causing partial paralysis and severely limiting the range of motion
and essential function in his left shoulder is temporary or permanent. These tests
will be conducted on May 8, 2015. Because these tests will determine counsel’s
long-term prognosis and the course of treatment going forward, counsel needs to
give this appointment priority over all work matters.
6. Finally, though not an exceptional circumstance in and of itself, many
of the issues raised in appellant’s brief require more thorough responses than the
typical case. As a result, counsel needs more time than originally thought to ensure
that the brief fits within the word-count limits set out in the Court’s March 12,
2015 order. Despite the circumstances described above, the undersigned expects to
complete and file Appellee/Cross-Appellant’s opening brief within those limits and
within the time requested in this amended motion.
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CONCLUSION AND PRAYER
For these reasons, Mercieca respectfully requests that the Court grant this
motion for extension of time, thus making his opening brief due on May 15, 2015.1
Mercieca requests all other appropriate relief to which he is entitled.
Respectfully submitted,
SMITH LAW GROUP, P.C.
/s/D. Todd Smith
D. Todd Smith
State Bar No. 00797451
1250 Capital of Texas Highway South
Three Cielo Center, Suite 601
Austin, Texas 78746
(512) 439-3230
(512) 439-3232 (fax)
todd@appealsplus.com
Lead Appellate Counsel for
Appellee/Cross-Appellant,
Michael Mercieca
1
Per the Court’s previous order:
• Microsoft’s response to Mercieca’s cross-appeal shall be due 30 days after Mercieca’s
opening brief is filed (10,000-word limit); and
• Microsoft’s reply brief as appellant and Mercieca’s reply brief as cross-appellant shall be
due 20 days after Microsoft’s response to Mercieca’s cross-appeal is filed (7,500-word
limit for each brief).
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CERTIFICATE OF CONFERENCE
In compliance with Texas Rule of Appellate Procedure 10.1(a)(5), I certify
that I conferred with appellant’s lead counsel, Gretchen Sween, about the original
motion. At the time, Ms. Sween informed me that appellant takes no position with
respect to the motion, and appellant has not filed an opposition.
/s/ D. Todd Smith
D. Todd Smith
CERTIFICATE OF SERVICE
On May 7, 2015, in compliance with Texas Rule of Appellate Procedure 9.5,
I served this document by e-service and e-mail to:
Gretchen S. Sween
BECK REDDEN LLP
515 Congress Avenue, Suite 1750
Austin, Texas 78701
gsween@beckredden.com
Lead Appellate Counsel for
Appellant/Cross-Appellee,
Microsoft Corporation
/s/D. Todd Smith
D. Todd Smith
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