                                                                                       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

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