ACCEPTED
04-15-00782-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/30/2015 4:24:49 PM
KEITH HOTTLE
CLERK
________________________________________________________________________
CASE NO. 04-15-00779-CV FILED IN
4th COURT OF APPEALS
________________________________________________________________________
SAN ANTONIO, TEXAS
12/30/2015 4:24:49 PM
In the Court of Appeals KEITH E. HOTTLE
For the Fourth Judicial District of Texas Clerk
San Antonio, Texas
________________________________________________________________________
ALL AMERICAN EXCAVATION, INC.
Plaintiff-Appellant,
v.
AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY
Defendant-Appellee.
________________________________________________________________________
On Appeal from Cause No. 2015-CI-10299
In the 131st Judicial District Court of Bexar County, Texas
The Honorable Johnny D. Gabriel, Jr. Presiding
________________________________________________________________________
CASE NO. 04-15-00780-CV
[related appeal]
ALL AMERICAN EXCAVATION, INC.
Plaintiff-Appellant,
v.
AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY
Defendant-Appellee.
________________________________________________________________________
On Appeal from Cause No. 2015-CI-10743
In the 224th Judicial District Court of Bexar County, Texas
The Honorable Cathy Stryker Presiding
________________________________________________________________________
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________________________________________________________________________
CASE NO. 04-15-00781-CV
[related appeal]
ALL AMERICAN EXCAVATION, INC.
Plaintiff-Appellant,
v.
AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY
Defendant-Appellee.
________________________________________________________________________
On Appeal from Cause No. 2015-CI-13685
In the 57th Judicial District Court of Bexar County, Texas
The Honorable Antonea Arteaga Presiding
________________________________________________________________________
CASE NO. 04-15-00782-CV
[related appeal]
ALL AMERICAN EXCAVATION, INC.
Plaintiff-Appellant,
v.
AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY
Defendant-Appellee.
________________________________________________________________________
On Appeal from Cause No. 2015-CI-11880
In the 438th Judicial District Court of Bexar County, Texas
The Honorable Gloria Saldaña Presiding
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Appellant’s Motion for Consolidation and Motion for
Extension of Time to File Appellant’s Brief
TO THE HONORABLE COURT OF APPEALS:
Each of the above four (4) appeals arose from the filing of four Notices of
Accelerated Appeal by the Appellant in each of the underlying cases on December 10,
2015. The basis of the Appeal in each suit is the “Order Denying Defendant’s Motion to
Abate and Compel Arbitration” entered in each of the above-referenced cases by the 131st
Judicial District Court of Bexar County Texas on December 4, 2015, which was entered
after a single consolidated hearing for all four cases was held on November 20, 2015 upon
the Appellant’s four virtually identical “Motion to Abate and Compel Arbitration” filed in
each respective case.
Although the Appellant had filed a Motion to Consolidate the four underlying cases,
the District Court entered its “Order Denying the Motion to Abate and Compel
Arbitration” in each of the cases prior to ruling upon the Motion to Consolidate. The
issues, evidentiary record, transcript, and pleadings in each appeal will be essentially
identical and judicial economy would be maximized by the consolidated briefing and
argument of each of the four appeals. Therefore the parties would respectfully request the
Court consolidate each of the above appeals for the purposes of briefing and oral argument,
if necessary. This Court’s judgment, and/or any related order, mandate or decision, can
thereafter issue separately in each of the four appeals to the underlying cases below
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(without prejudice to the Appellant’s Motion to Consolidate, if necessary).
In addition, the reporter’s record in each of the cases is identical (and the clerk’s
records are virtually identical), however, the various records in each respective case were
filed in this Court on separate days. Consequently, the deadline set for the filing of the
Appellant’s Brief under Texas Rule of Appellate Procedure 38.6(a) in Case No.
04-15-00780-CV in each of the Appeals fall upon different dates, with the earliest deadline
being January 11, 2016. Furthermore, the supplemental clerk’s record in each of the four
cases has not yet been filed in this Court, and the record is therefore incomplete despite the
briefing deadlines in effect.
As it would be uneconomical to prepare and file briefing in Case No.
04-15-00780-CV (the case in which the clerk’s record and reporter’s record were initially
filed), when the issues in each appeal will be identical and the request for the appeals’
consolidation, Appellant respectfully requests that, pursuant to Texas Rule of Appellate
Procedure 38.6(d), this Court order the 20-day deadlines applicable to an accelerated
appeal under Texas Rule of Appellate Procedure 38.6(a) begin to run upon the later of the
date on which the record in each appeal is made complete, or the date on which the Order
consolidating the four appeals.
No prior extensions have been previously requested or granted.
Prayer
Appellant respectfully requests that the Court consolidate Case Nos.
04-15-00779-CV, 04-15-00780-CV, 04-15-00781-CV, and 04-15-00782-CV, for the
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purposes of briefing and oral argument, and additionally order that the deadlines set forth
in Texas Rules of Appellate Procedure 38.6(a) begin to run upon such consolidation, or
upon the clerk’s record becoming complete upon the filing of the clerk’s supplemental
record in each of the cases, whichever date be later.
Respectfully submitted,
TAUBE SUMMERS HARRISON TAYLOR
MEINZER BROWN, LLP
By: /s/ Neal Meinzer
Neal Meinzer
State Bar No. 00797065
nmeinzer@taubesummers.com
S. Alex King
State Bar No. 24067708
aking@taubesummers.com
100 Congress Avenue, Suite 1800
Austin, Texas 78701
Telephone: (512) 472-5997
Telecopier: (512) 472-5248
ATTORNEYS FOR APPELLANT
CERTIFICATE OF CONFERENCE
On December 28, 2015 and December 30, 2015, I conferred with Appellee’s
counsel regarding this motion, and the parties do not agree on the relief requested.
/s/ Neal Meinzer
Neal Meinzer/Alex King
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CERTIFICATE OF SERVICE
I certify that on December 30, 2015, a true and correct copy of the foregoing
document was served on the following counsel of record by electronic filing:
Lee Elms
Thomas S. Harmon
Elms Harmon Macchia, LLC
2702 Treble Creek
San Antonio, Texas 78258
/s/ Neal Meinzer
Neal Meinzer/Alex King
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All American Excavation, Inc. v. Austin Materials, LLC
Combined Opinion