Laurie Poe v. Omni Flow Computers, Inc.

ACCEPTED
14-15-00674-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/11/2015 3:25:54 PM
CHRISTOPHER PRINE
CLERK

NO. 14-15-00674-CV
Tr Ct No. 2014-33603
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS FOR THE 8/11/2015 3:25:54 PM
FOURTEENTH DISTRICT OF TEXAS CHRISTOPHER A. PRINE
Clerk

LAURIE POE,

Plaintiff - Appellant,

v.

OMNI FLOW COMPUTERS, INC.

Appellee.

APPELLEE OMNI FLOW COMPUTERS, INC.’S RESPONSE TO
APPELLANT’S OPPOSED MOTION TO EXTEND THE DEADLINE TO
FILE APPELLANT’S NOTICE OF APPEAL

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS FOR THE
FOURTEENTH DISTRICT OF TEXAS:

Appellee/Defendant Omni Flow Computers, Inc. (“Appellee”) files this

Response to Appellant/Plaintiff Laurie Poe’s (“Appellant”) Opposed Motion to

Extend the Deadline to File Appellant’s Notice of Appeal and would respectfully

show the Court of Appeals as follows:
 I.

Appellant filed her underlying lawsuit against Omni on June 11, 2014 in the

11th Judicial District Court of Harris County, Texas (“Trial Court”). On June 23,

2015, the Trial Court granted Appellee’s Motion for Summary Judgment and

dismissed the underlying lawsuit in its entirety with prejudice. See Exhibit 1. In

particular, the Trial Court granted Appellee’s Motion for Summary Judgment, inter

alia, because Appellant failed to timely file her lawsuit in accordance with TEX.

LAB. CODE § 61.062(b). See Exhibit 2. Accordingly, Appellant was required to

file a notice of appeal on or before July 23, 2015. TEX. R. APP. P. 26.1. Appellant

did not file a notice of appeal until August 5, 2015. See Exhibit 3. Therefore,

Appellant’s Notice of Appeal is untimely and should be dismissed.

II.

A party must file a notice of appeal with the clerk of the district court within

30 days after the judgment is signed in order to timely perfect an appeal. TEX. R.

APP. P. 26.1. Here, Appellee did not file her Notice of Appeal until August 5,

2015, 43 days after the date of the Summary Judgment Order. See Exhibit 3.

Therefore, Appellant’s Notice of Appeal was filed untimely and this appeal should

be dismissed.

Rule 26.3 of the Rules of Appellate Procedure allows an appellate court to

extend the time to file a notice of appeal if, within fifteen days after the notice is

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due, the appellant files their notice of appeal with the trial court and files a Rule

10.5(b) motion to extend time with the appellate court. TEX. R. APP. P. 26.3. The

appellant must still provide a reasonable explanation for why an extension of time

is necessary. See Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex.

App.–Houston [1st Dist.] 1999, no pet.). In the present case, Appellant’s

explanation in her Motion is not reasonable, but instead demonstrates the

continued pattern of untimely filings and constant delays by Appellant.

Specifically, the Trial Court granted Appellee’s Motion for Summary Judgment,

inter alia, because Appellant failed to timely file her lawsuit in accordance with

TEX. LAB. CODE § 61.062(b). See Exhibit 2. Therefore, Appellant should not be

allowed to profit from her constant delays, and this appeal should be dismissed.

PRAYER

For all of the foregoing reasons, Appellee prays that the Court deny

Appellant’s Motion to Extend the Deadline to File Appellant’s Notice of Appeal,

dismiss Appellant’s appeal, and for all such other and further relief to which

Appellee may show itself to be justly entitled.

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 Respectfully submitted,

GORDON & REES, LLP

By: /s/ Glenn R. LeMay
Glenn R. LeMay
State Bar No. 12188690
glemay@gordonrees.com
Joseph W. DiCecco
State Bar No. 05812520
jdicecco@gordonrees.com
Andrew M. Scott
State Bar No. 24075042
ascott@gordonrees.com
1900 West Loop South, Suite 1000
Houston, Texas 77027
(713) 961-3366 – Telephone
(713) 961-3938 – Facsimile

ATTORNEYS FOR APPELLEE

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document was duly
served upon the following on this the 11th day of August, 2015, as follows:

Linda Leeser By Email: lindaleeser@hotmail.com
LAW OFFICE OF LINDA LEESER
8800 Broadway St., Suite 210
San Antonio, Texas 78217

Ben J. Raia By Email: bjroffice@gmail.com
BEN J. RAIA & ASSOCIATES, PLLC
306 S. Friendswood Drive, Unit C
Friendswood, Texas 77546

/s/ Glenn R. LeMay
GLENN R. LEMAY

1104212/24604670v.1
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