Southwest Pipe Services, Inc and Joe Briers v. Sunbelt Rentals, Inc.

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ACCEPTED 01-15-00124-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/10/2015 9:34:24 PM CHRISTOPHER PRINE CLERK CAUSE NO. NO. 01-15-00124-CV IN THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1st COURT OF APPEALS 8/10/2015 9:34:24 PM CHRISTOPHER A. PRINE HOUSTON Clerk ___________________ SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS Appellant vs. SUNBELT RENTALS, INC. Appellees __________________________________ APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ APPELLANT’S REPLY BRIEF _______________________________________ Jason A. Powers SBOT 24027745 P.O. Box 272425 Houston, Texas 77277 Tele: (832) 647-8493 Fax: (832) 415-0593 jason@jasonapowers.com APPELLANT REQUESTS AN ORAL ARGUMENT CAUSE NO. NO. 01-15-00124-CV IN THE 1st COURT OF APPEALS HOUSTON ___________________ SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS Appellant vs. SUNBELT RENTALS, INC. Appellees __________________________________ APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ IDENTITIES OF PARTIES COUNSEL _______________________________________ Jason A. Powers ORLANDO & ORLANDO SBOT 24027745 Monica Schulz Orlando P.O. Box 272425 440 Louisiana, Ste 1110 Houston, Texas 77277 Houston, Texas 77002 Tele: (832) 647-8493 Tele: (713) 521-0800 Fax: (832) 415-0593 Fax: (713) 521-0842 jason@jasonapowers.com monicaorlando@orlandollp.com ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES ii TABLE OF CONTENTS TABLE OF AUTHORITIES CAUSE NO. NO. 01-15-00124-CV IN THE 1st COURT OF APPEALS HOUSTON ___________________ SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS Appellant vs. SUNBELT RENTALS, INC. Appellees __________________________________ APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ APPELLANT’S REPLY BRIEF _______________________________________ Appellants, Southwest Pipe Services, Inc. and Joe Briers submits their brief. Appellants will be referred to as Appellants or SWP. Appellees will be referred to as Appellees or Sunbelt. iii I. ARGUMENT & AUTHORITIES Sunbelt filed a Motion for Summary Judgment (First Motion) on July 21, 2014 and set the Motion for oral hearing on September 3, 2014. SWP responded to Sunbelt’s First Motion, and in response, Sunbelt passed the hearing and reset the First Motion to October 7, 2014 per correspondence dated September 3, 2014. On September 19, 2014 Sunbelt filed an Amended Motion for Summary Judgment (Second Motion), attempting to correct the errors complained of in SWP’s Response. The Second Motion was set for hearing on November 12, 2014. SWP filed a response to the Second Motion that mimicked the Response to the First Motion, except for the objection of the lack of the business records affidavit that was made in the response to the First Motion. Sunbelt filed no reply or objection to SWP’s response to the First Motion or the Second Motion. On December 12, 2014, Appellant filed a Motion for New Trial on multiple grounds including error due to the court not considering the response filed by the Appellant. There is no reason that (1) the Appellant shouldn’t be granted leave to file its response late and (2) the late response was the same response as was filed to the first motion for summary judgment. Appellant asks this Court to either grant leave and allow Appellant’s response to stand or in the alternative, allow the first response to be considered as a timely response to the second motion. It is very unfair that Appellee 4 had the ability to file multiple motions to correct its mistake and yet Appellants have no recourse for a calendaring mistake. Appellees were on notice of Appellant’s claims from the first response. III. PRAYER WHEREFORE, PREMISES CONSIDERED, Southwest Pipe Service, Inc., Appellant, prays that this Honorable Court reverse the Trial Court’s ruling granting summary judgment, remand this matter back to the trial court, allowing Rodney Beshears to remain a responsible third party. 5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Appellant’s Brief was delivered to all counsel of record on the 10th day of August, 2015 via Certified U.S. Mail, return receipt requested and/or via electronic service in accordance with the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure. The documents were delivered to: ORLANDO & ORLANDO, Monica Schulz Orlando, 440 Louisiana, Ste 1110, Houston, Texas 77002; monicaorlando@orlandollp.com ________________________________ Jason A. Powers State Bar No. 24027745 jason@jasonapowers.com 6 CAUSE NO. NO. 01-15-00124-CV IN THE 1st COURT OF APPEALS HOUSTON ___________________ SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS Appellant vs. SUNBELT RENTALS, INC. Appellees __________________________________ APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS _______________________________________ SIGNATUTRE PAGE _______________________________________ 7 This Brief is respectfully submitted by: JASON A. POWERS, ATTORNEY ______________________________________ Jason A. Powers SBOT 24027745 P.O. Box 272425 Houston, Texas 77277 Tele: (832) 647-8493 Fax: (832) 415-0593 jason@jasonapowers.com Attorney for Appellants THIS BRIEF CONTAINS _724_ WORDS 8