                                                                                ACCEPTED
                                                                            01-15-00473-CV
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                      6/29/2015 11:41:28 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK

                      NO. 01-15-00473-CV
______________________________________________________________
                                                     FILED IN
                                              1st COURT OF APPEALS
                  IN THE COURT OF APPEALS         HOUSTON, TEXAS
               FOR THE FIRST DISTRICT OF TEXAS6/29/2015 11:41:28 AM
                      AT HOUSTON, TEXAS       CHRISTOPHER A. PRINE
                                                       Clerk
______________________________________________________________

      MICHELLE HEINRICH, MANDY SO and NAIM EL-ASWAD,
         M.D., Individually and Derivatively as Members of
         Victory’s Bioethical Anatomics, LLC and Victory’s
          Advanced Centers for Surgical Education, LLC,
                                                Appellants/Plaintiffs,

                                 V.

        STRASBURGER & PRICE, L.L.P., STUART FARRELL
                MILLER, and JANA H. WOELFEL,
                                           Appellees/Defendants.
______________________________________________________________

    On Interlocutory Appeal From the 164th Judicial District Court
           of Harris County, Texas, Cause No. 2013-74218
____________________________________________________________

              APPELLANTS’/PLAINTIFFS’ REPLY IN
          SUPPORT OF JURISDICTIONAL RESPONSE TO
           COURT OF APPEALS’ JUNE 18, 2015, NOTICE
______________________________________________________________

FRED HAGANS                           VINCENT L. MARABLE III
KENDALL C. MONTGOMERY                 PAUL WEBB, P.C.
HAGANS BURDINE MONTGOMERY             221 N. Houston
     & RUSTAY, P.C.                   Wharton, Texas 77488
3200 Travis, Fourth Floor             Telephone:     (979) 532-5331
Houston, Texas 77006                  Telecopier:    (979) 532-2902
Telephone:       (713) 222-2700
Telecopier:      (713) 547-4950
  ATTORNEYS FOR APPELLANTS/ PLAINTIFFS MICHELLE HEINRICH, ET AL.
TO THE HONORABLE FIRST COURT OF APPEALS:


      Appellants/Plaintiffs Michelle Heinrich, Mandy So and Naim El-Aswad,

M.D., Individually and Derivatively as Members of Victory’s Bioethical

Anatomics, LLC and Victory’s Advanced Centers for Surgical Education, LLC

(“Appellants”) file this Reply in Support of Response to Court of Appeals’ June

18, 2015, Notice as follows:

                     INTRODUCTION AND OVERVIEW

      This Court issued a Notice dated June 18, 2015, which stated: “The

Court’s records indicate that Appellants’/Plaintiffs’ Petition for Permission to

Appeal Interlocutory Order filed with this Court on May 27, 2015 may not have

been timely. See, e.g., Inliner Americas, Inc. v. MaComb Funding Group,

L.L.C., 244 S.W.3d 427 (Tex. App.–Houston [14th Dist.] 2007, no pet.)”.

Appellants responded to the Notice on June 25, 2015. Appellees replied on

June 26, 2015. Appellants file this further response/reply on the jurisdictional

issue identified in the June 18, 2015, Notice.

      As is evident from Appellants’ June 25, 2015, Response, Appellants do

not “concede that [their] petition was not filed within 15 days of the order to be

appealed” and do not concede that Tex. R. Civ. P. 168 was not satisfied. See

Appellees’ June 26, 2015, filing, p. 2, ¶¶ 1 and 3. The trial court amended its

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April 17, 2015, order on May 15, 2015, and the petition for permission to

appeal was filed on May 27, 2015, within the 15 day deadline.

      The Federal Court of Appeals Practice Manual specifically recognizes

that a trial court’s order certifying a case for interlocutory appeal is usually

made in separate order issued after the substantive ruling.

      Counsel are typically so preoccupied with the merits of a motion
      that they do not address in their motion the question of whether
      the district court should certify its ruling for interlocutory appeal.
      Until the court actually rules, it may be hard to predict whether its
      decision will even meet the criteria for such an appeal. If the
      district court denies a motion due to unresolved factual issues, for
      instance, the prospects for interlocutory appeal are slim. Hence,
      more often than not, there is nothing to gain by asking for district
      court certification before you know how the district court rules on
      the merits of a motion. The appeal period does not start until the
      district court enters an order containing the requisite certification,
      so no appeal period is running while you wait to see how the
      district court rules before deciding to seek certification.

      When the court does rule on the merits of a motion, it may sua
      sponte certify its order for interlocutory appeal. More often it will
      not. At most, a judge may hint at his or her inclination to certify its
      order for interlocutory appeal. In any event, if you want to appeal,
      you will need to file a new motion asking the district court to
      amend its order to include the certification required under section
      1292(b).

David G. Knibb, Federal Court of Appeals Manual (6th ed.), Section 5:3 What

is the procedure and what are the tests for certification by the district court?

      This Court should resolve the jurisdictional issue in favor of Appellants


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and proceed to the merits of the petition for permission to appeal.


                                   Respectfully submitted,


                                   HAGANS BURDINE MONTGOMERY &
                                   RUSTAY, P.C.


                                   By:    /s/ Fred Hagans
                                         Fred Hagans
                                         State Bar No. 08685500
                                         fhagans@hagans-law.com
                                         Kendall C. Montgomery
                                         State Bar No. 14293900
                                         kmontgomery@hagans-law.com
                                   3200 Travis, Fourth Floor
                                   Houston, Texas 77006
                                   (713) 222-2700
                                   (713) 547-4950 Fax


                                   PAUL WEBB, P.C.

                                   Vincent L. Marable III
                                   State Bar No. 12961600
                                   trippmarable@sbcglobal.net
                                   221 N. Houston St.
                                   Wharton, Texas 77488-3821
                                   (979) 532-5331
                                   (979) 532-2902 Fax


                                   ATTORNEYS FOR APPELLANTS/
                                   PLAINTIFFS MICHELLE HEINRICH, ET
                                   AL.


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                        CERTIFICATE OF SERVICE

      I certify that on June 29, 2015, a true and correct copy of the above and
foregoing Appellants’/Plaintiffs’ Reply In Support Of Jurisdictional Response
To Court Of Appeals’ June 18, 2015, Notice was forwarded to all counsel of
record by the Electronic Filing Service Provider, if registered; a true and
correct copy of this document was forwarded to all counsel of record not
registered with an Electronic Filing Service Provider by certified mail return
receipt requested, addressed as follows:


      Murray J. Fogler
      Robert Ford
      Fogler, Brar, Ford, O’Neil & Gray, LLP
      711 Louisiana, Suite 500
      Houston, Texas 77002
      Attorneys for Appellees/Defendants
      Strasburger & Price L.L.P., Stuart F.
      Miller, and Jane H. Woelfel


      Russell S. Post
      Beck  Redden LLP
      1221 McKinney St., Suite 4500
      Houston, Texas 77010
      Attorneys for Appellees/Defendants
      Strasburger & Price L.L.P., Stuart F.
      Miller, and Jane H. Woelfel



                                      /s/ Vincent L. Marable III
                                    VINCENT L. MARABLE III




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                    CERTIFICATE OF COMPLIANCE


      This Jurisdictional Reply consists of 666 words. This Jurisdictional
Reply was requested by the First Court of Appeals. For such reason,
undersigned counsel for Appellants does not believe that there is an
applicable word count limitation.



                                    /s/ Vincent L. Marable III
                                  VINCENT L. MARABLE III




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