                                                                                             ACCEPTED
                                                                                         01-14-00539-CV
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                    9/24/2015 4:50:55 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                  CLERK



                               NO. 01-14-00539-CV
                                                        FILED IN
                                                 1st COURT OF APPEALS
                                                     HOUSTON, TEXAS
                       IN THE COURT OF APPEALS   9/24/2015 4:50:55 PM
      FOR THE     FIRST SUPREME JUDICIAL DISTRICTCHRISTOPHER
                                                  OF TEXAS A. PRINE
                                                         Clerk
                               HOUSTON, TEXAS


      HOANG-YEN THI DANG, and
      TAN DUC CONSTRUCTION LIMITED COMPANY,
               Appellants
      v.

      JIMMY TRAN,
               Appellee and Conditional Cross-Appellant



   TRAN’S MOTION TO EXTEND and BIFURCATE HIS DEADLINES
            FOR FILING BRIEFS AS APPELLEE and
             as CONDITIONAL CROSS-APPELLANT

TO THE HONORABLE FIRST COURT OF APPEALS:

      Tran (Appellee, and Conditional Cross-Appellant) was assigned the

deadline of September 24 to file his Brief (as Appellee and Conditional Cross-

Appellant as to Appellant and Conditional Cross-Appellee Dang) by a prior order

of this Court. (That Tran would file a single brief as to Dang, both as Appellee

and as Conditional Cross-Appellant, and the lack of objection to the conditionality

of Tran’s cross-appeal as to Dang, were subsumed by an agreed motion made and

accepted earlier in this appeal.)(The conditionality of Tran’s Cross-Appeal is that
Tran does not wish to seek appellate relief as to Dang, his judgment debtor, unless

this Court grants relief to Dang. In common speech, Tran will choose his bird in

the hand, if it stays there.)

       This motion comes to pass because none of the Jury Questions and Jury

Instructions Tran submitted and the Trial Court rejected are in the Clerk’s Record

on Appeal or Clerk’s Supplemental Record on Appeal, nor are they in the “JIMS”

electronic case file available online to Tran through the District Clerk’s website,

nor (Tran started asking some weeks ago) has the Chief Clerk of the trial court yet

been able to locate the paper originals of those proposed-but-rejected Jury

Questions and Instructions. The trial court clerk reports to Tran that she is looking

for the paper originals, and the court staff have reported to Tran they lately have

requested the actual paper file to be “pulled” from the Clerk’s storage facility in

order that they may search for the missing Tran’s proposed-but-rejected Jury

Questions and Instructions. Tran has assiduously pursued the trail of these

necessary documents since the omission became manifest. Tran is unable to

prepare and file his brief as a Conditional Cross-Appellant without reference to the

Jury Questions and Jury Instructions he submitted that the Trial Court refused. It

is unknown to Tran when the Chief Clerk of the Trial Court will conclude her

inquiry and report either that the papers are utterly missing or that they have been

                                          2
located and scanned into the clerk’s electronic record and available for

supplementation to the appellate record in this Court.

      However, though his present deadline is for filing a single Brief as Appellee

and as Conditional Cross-Appellant, Tran does not require the missing proposed-

but-rejected jury questions and instructions in order to prepare the portion of his

brief as an Appellee responsive to the Appellant Dang’s brief, and so Tran

proposes that despite the earlier agreed motion to file a single brief (as Appellee

and Conditional Cross-Appellant) as to Dang that Tran now, to accommodate the

uncertain time needed to complete the trial court clerk’s continuing search for the

missing papers, bifurcate his briefing as to Dang into one brief to be filed as

Appellee as to Dang, and a later brief to be filed as Conditional Cross-Appellant as

to Dang.

      Tran does not request adjustment of the briefing deadline as to Tan Duc,

which deadline was set by this Court’s prior order.

      Tran moves for the following relief:

      A.     Permission to bifurcate his briefing as to Dang into an Appellee’s

             Brief responding to Appellant Dang’s brief, and a Conditional Cross-

             Appellant’s Brief as to Dang.




                                          3
      B.    An extension of Three (3) Weeks from the present deadline to file his

            Appellee’s Brief as to Dang’s Appellant’s Brief.

      C.    An extension of One (1) Month from the present deadline to file his

            Conditional Cross-Appellant’s Brief as to Dang, understanding that

            the trial court clerk’s office’s retrieval of its own paper files and

            search for the missing proposed-but-rejected jury questions and

            instructions are outside Tran’s control, though his requests are direct

            and assiduous and continuing.


                                       Respectfully submitted,
                                         /S/ Matt Muller
                                       Matthew S. Muller
                                       Texas Bar No. 14648450
                                       1445 North Loop West, Suite 760
                                       Houston, Texas 77008
                                       Tel. (713)227-1888
                                       Fax. (713)227-1881
                                       Attorney for Tran

                             Certificate of Conference

       By earlier agreement with Dang’s current appellant counsel, ordinary and
reasonable requests for deadline relief are not opposed. This motion does not
affect Tan Duc and its counsel has not been contacted.

                                             /S/
                                       Matthew Muller




                                          4
                                                Certificate of Service

     I will cause the e-filing system to serve a true copy of this instrument on all
counsel this 24th day of September, 2015.
                                              /S/
                                       Matthew Muller



C:\Users\Matt\Dropbox\TRAN Appellate\motion bifurcate.wpd




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