                                                                                     ACCEPTED
                                                                                 01-15-00641-CV
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                             8/4/2015 5:28:11 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                           NO. 01-15-00641-CV

                                                        FILED IN
                                                 1st COURT OF APPEALS
                    IN THE COURT OF APPEALS          HOUSTON, TEXAS
                 FOR THE FIRST DISTRICT OF TEXAS 8/4/2015 5:28:11 PM
                         HOUSTON, TEXAS          CHRISTOPHER A. PRINE
                                                         Clerk

            AGBOLADE ODUTAYO and BONITA ODUTAYO,
                         Appellants
                                    v.
    STEVE WU, Individually and as Special Trustee for Wu Family Trust,
                               Appellee


                                   Appeal
         From the133rd Judicial District Court of Harris County, Texas
                           Cause No. 2013-30215
                The Honorable Jaclanel McFarland, Presiding
_____________________________________________________________________
        APPELLEE’S MOTION TO DISMISS AND RESPONSE TO
             MOTION FOR EXTENSION OF TIME TO FILE
                         NOTICE OF APPEAL
_____________________________________________________________________

                                              Brad E. Porter
                                              Tex. Bar No. 24048741
                                              brad@porterpowers.com
                                              J. Robert MacNaughton
                                              Tex. Bar No. 00789944
                                              robert@porterpowers.com
                                              PORTER & POWERS, PLLC
                                              5900 Memorial Drive, Suite 305
                                              Houston, Texas 77007
                                              713-621-0700 Telephone
                                              713-621-0709 Facsimile

                                         ATTORNEYS FOR APPELLEE
                                         STEVE WU, Individually and as
                                         Special Trustee for Wu Family Trust
    APPELLEE’S MOTION TO DISMISS AND RESPONSE TO APPELLANTS’
                MOTION FOR EXTENSION OF TIME TO
                     FILE NOTICE OF APPEAL


TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

        Appellee, Steve Wu, Individually and as Special Trustee for Wu Family Trust

(“Appellee”), moves to dismiss this appeal under Rule 10 of the Texas Rules of

Appellate Procedure for lack of jurisdiction, because the Appellants have failed to

timely file a notice of appeal to invoke the Court’s jurisdiction, and have also failed to

file an sufficiently adequate motion for extension of time to file notice of appeal

within the time period proscribed.

        On July 24, 2015, Appellants, Agbolade Odutayo and Bonita Odutayo

(“Appellants”), filed and served “Appellants Motion for Extension of Time to File

Notice of Appeal” in this proceeding (“Motion to Extend”) within the grace period
                               1
provided by Rule 26.3.             The Motion to Extend is not verified or supported by any

evidence. Also on July 24, 2015, Appellants filed and served a Notice of Appeal in

the court below (“Notice of Appeal”).

        The Notice of Appeal gives notice that the Appellants are appealing the final

summary judgment order signed and entered April 13, 2015.                                   Appellants, as

1
         The Motion to Extend does not meet with the requirements of Rule 10.1(a)(5) as no Certificate of
Conference was provided, as no such conference ever occurred, and on information and belief no attempt to confer
was ever made. In addition, on information and belief, the Motion to Extend was not electronically filed, as is
required when the Appellants are represented by counsel.

                                                       2
defendants below, filed a timely Motion for New Trial on May 12, 2015 (“Motion for

New Trial”). The Appellants did not seek to have a timely hearing on the Motion for

New Trial and it was overruled by operation of law as of June 27, 2015. 2 Because the

Appellants had filed the Motion for New Trial, the deadline for filing the Notice of

Appeal was July 13, 2015, the Monday following the deadline. The Notice of Appeal

was not timely filed, and the Appellants must comply with the requirements for

obtaining an extension of time to file it.

        Pursuant to Texas Rules of Appellant Procedure, Rule 26.3(b) in addition to

filing a Notice of Appeal within the fifteen days after the deadline for filing the notice

of appeal, the Appellants were required to file a motion complying with Rule 10.5.(b),

in order to obtain an extension of time to file the Notice of Appeal. See: TEX. R. APP.

PROC. 26.3(B). Pursuant to Texas Rules of Appellant Procedure, Rule 10.5(b)(2), the

Appellants’ Motion to Extend was required to contain, as the rule states: “the facts

relied on to reasonably explain the need for an extension,” pursuant to Rule

10.5(b)(1)(C).         See: TEX. R. APP. PROC. 10.5(B)(2) AND 10.5(B)(1)(C). The only

statement contained in the Motion to Extend as to why an extension was needed is the

statement making up the third paragraph:

        “This extension of time is necessary because the 90-day deadline
        to file has passed and the appellant’s [sic] Motion for a New Trial
        was overruled by operation of law.”


2
         Appellants first set the Motion for New Trial for hearing and then re-set it hearing for July 20, 2015,
wherein the trial court advised the parties that the Motion for New Trial had been overruled by operation of law and
the court would leave it that way.

                                                         3
The Motion to Extend provides no other basis, or facts, for seeking an extension of

time to file the Notice of Appeal.

      In the context of the old Rule 41 of the Texas Rules of Appellate Procedure, to

obtain and extension of time to file a cost bond the Texas Supreme Court has defined

as that a “reasonable explanation” is:

      “Any plausible statement of circumstances indicating that failure to
      file . . . was not deliberate or intentional, but was the result of
      inadvertence, mistake, or mischance, [would] be accepted as a
      reasonable explanation, even though counsel or his secretary
      may appear to have been lacking in that degree of diligence which
      careful practitioners normally exercise.”

See: Garcia v Kastner Farms,, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (citing: United

States Fire Ins. Co. v. Stricklin, 547 S.W.2d 338 (Tex. Civ. App. - Dallas 1977, no

writ) and Heritage Life Ins. Co. v. Heritage Group Holding Corp, 751 S.W.2d 229,

231-32 (Tex. App. – Dallas 1988, writ den’d.). This standard is also applied to

extensions of time for notices of appeals. See: Hone v Hanaflin, 104 S.W.3d 884

(Tex. 2003) (citing: Meshwert v Meshwert, 549 S.W.2d 383, 384 (Tex. 1977).

      Texas courts have granted motions for extension of time to file a notice of

appeal where explanation provided was a misunderstanding of, or applicable appellate

rules, such as an erroneous calculation of a deadline; Dimotsis v State Farm Lloyds,,

966 S.W.2d 657 (Tex. App. – San Antonio 1998) (by verified statement); an

improperly calendared deadline; Gregorian v. Ewell, 106 S.W.3d 257, 258 (Tex. App.

– Fort Worth 2003, no pet.)(held to the unique circumstances of that case); and a


                                         4
mistaken designation of the wrong court of appeals; Birmingham Fire Ins. Co. of

Pennsylvania v American National Fire Ins. Co., 928 S.W.2d 226, 228 (Tex. App. –

Texarkana 1996, no writ); Garcia v Kastner Farms Inc., 774 S.W.2d 668, 670 (Tex.

1989).

         Texas courts have found an explanation unreasonable when the explanation

reveals a defendant’s conscious or strategic decision to wait to file a notice of appeal

because the explanation did not show inadvertence, mistake, or mischance. Hykonnen

v. Baker Hughes Business Support Services, 93 S.W.3d 562, 563-64 (Tex. App. –

Houston [14th Dist.] 2002, no pet.). In Hykonnen, the appellant contended in essence

that they did not timely file the appeal because they did not have the funds to hire an

attorney.

         In this case, the Appellants have not contended that they did not know of the

deadline, or that there was a mistake, they just contend that the deadline has

happened. The Court in Weik v Second Baptist Church of Houston, held that waiting

until trial court’s plenary power expired in case trial court reinstated case was not

sufficient grounds for a late notice of appeal. Weik v Second Baptist Church of

Houston, 988 S.W.2d 437, 439 (Tex. App. – Houston [1st Dist.] 1999, pet.. den’d.). If

it is appropriate for any facts to be reasonably inferred from the statements Appellants

did provide to the Court, they would be similar to the Weik case. Appellants waited to

see if the trail court would grant the Motion for New Trial at a hearing set after the 90

day deadline had run. Regardless whether it is considered intentional act or a failure

                                           5
to give any explanation at all as to why the Notice of Appeal should be permitted to

be filed late, the Appellants Motion to Extend should fail on either ground.

       The Court in Kidd v. Paxton, held as being unreasonable for a motion to

extend, explanations that (1) counsel miscalculated the due date for filing notice of

appeal when he still failed to file notice of appeal on the miscalculated date and (2)

counsel's preoccupation with other cases without a detailed explanation of the

complexities and relevant deadlines of the other cases. See: Kidd v. Paxton, 1 S.W.3d

309-310-13 (Tex. App. – Amarillo 1999, no pet). The Court in Miller v. Greenpark

Surgery Center Associates, Ltd., has found that where the appellant has failed to

provide the court with any reasonable explanation or cite any evidence in the record

for the late filing is grounds for dismissal for want of jurisdiction. Miller v. Greenpark

Surgery Center Associates, Ltd., 974 S.W.2d 805, 808 (Tex. App. – Houston [14th

Dist.] 1998). There is no evidence in the record or in the Motion to Extend as to why

the Appellants should be permitted to continue this appeal with the late filed notice.

       A timely notice of appeal is necessary to invoke jurisdiction in the appellate

court. See: In re A.L.B., 56 S.W.3d 651, 652 (Tex. App. – Waco 2001, no pet.) The

point of a deadline is to force the issue. Should an appellant, aware of the fact of the

deadline, fail to decide whether to appeal or not or just fail to act, then by its existence

the deadline decides the issue by default. To ignore these minimal requirements, is in

effect to have no deadline at all, and to give no meaning to the stated requirements of

Rule 10.5(b).

                                             6
      An appellant is obligated to come forward with a reasonable explanation to

support the late filing of the notice of appeal. See: Miller, 974 S.W.2d at 808. In the

cases where the courts have found that a reasonable explanation was given, there was

an actual explanation given by the appellant. In this case, the Appellants have not

given any explanation. They merely recite the facts that the ninety (90) day deadline

has passed, and the Motion for New Trial was overruled by operation of law.

Therefore, the Appellants’ motion does not reasonably explain the need for the

extension. Likewise no reasonable inference can be made from what is in the Motion

for Extension that would provide a basis for allowing the late filed Notice of Appeal.

The Appellants do not contend that they did not know of the deadline. The facts

recited more appropriately indicate that Appellants knew of the deadlines and

procedures and simply did not timely file the Notice of Appeal for whatever tactical

reason they were following. However, there is no actual statement of why they did

not file the Notice of Appeal timely.

      Contrary to the facts in Hone and similar to the facts in Miller and in

Hykonnen, in this case Appellants just consciously did not timely do what the Texas

Rules of Appellate Procedure requires.

                                         Prayer

      Appellee, Steve Wu, Individually and as Special Trustee for Wu Family Trust,

requests that the Court after consideration of the Appellants Motion for Extension of

Time to File Notice of Appeal and Appellee’s Motion to Dismiss and Response to

                                           7
Motion for Extension of Time to File Notice of Appeal, determine Appellants failed to

meet the standards set by Rule 10.5(b) of the Texas Appellate Rules of Civil

Procedure and case law on the subject, and order and dismissal of this appeal for lack

of jurisdiction.

                                              Respectfully submitted,

                                              PORTER & POWERS, PLLC

                                              By: /s/ Brad E. Porter
                                                     Brad E. Porter
                                                     “Attorney in Charge”
                                                     Tex. Bar No. 24048741
                                                     brad@porterpowers.com
                                                     J. Robert MacNaughton
                                                     Tex. Bar No. 00789944
                                                     robert@porterpower.com
                                                     5900 Memorial Drive, Suite 305
                                                     Houston, Texas 77007
                                                     713-621-0700 Telephone
                                                     713-621-0709 Facsimile

                                              ATTORNEYS FOR APPELLEE
                                              STEVE WU, Individually and as
                                              Special Trustee for Wu Family Trust

                       CERTIFICATE OF CONFERENCE

       The undersigned conferred with counsel for Appellant by e-mail on August 4,

2015, and Appellants’ counsel is opposed to this motion.



                                              /s/ J. Robert MacNaughton
                                                 J. Robert MacNaughton



                                          8
                          CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the foregoing
was forwarded to the following attorneys or pro se parties pursuant to Rule 9.5 of the
Texas Rules of Appellate Procedure on August 4, 2015.

Darrell W. Jordan, Jr.
1305 Prairie, Suite 200
Houston, Texas 77002


                                              /s/J. Robert MacNaughton
                                              J. Robert MacNaughton




                                          9
