


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-08-00395-CV
 
Jerold Klug,
                                                                                    Appellant
 v.
 
John Restivo and Cathy Restivo,
                                                                                    Appellees
 
 

From the 170th District Court
McLennan County, Texas
Trial Court No. 2008-840-4
 

ORDER





 
            This is an interlocutory appeal from
the denial of a motion to dismiss filed by Jerold Klug, a licensed professional
engineer, in which Klug asserted the Certificate of Merit required by Texas
Civil Practice and Remedies Code section 150.002 was inadequate.  We initially
questioned our jurisdiction because the notice of appeal was untimely in
relation to the trial court’s order ruling on the motion.
            Klug responded to our question and
asserted that he had filed another motion which, after a full hearing on the
merits, was also denied.  He asserts that it is from this second denial that he
brings this interlocutory appeal.  The question regarding our jurisdiction thus
remains, but has shifted from the timing of the filing of the notice of appeal
to the nature of the second motion, hearing, and ruling thereon.
            While we have been attempting to determine
if we have jurisdiction, Klug has proceeded to brief the merits of the appeal. 
Appellees have filed three motions for extension of time to file their brief on
the merits in response (December 22, 2008 along with a motion to dismiss,
December 29, 2008, and January 16, 2009).  Klug has generally opposed the
motions because they seek to delay the briefing on the merits until the
question of our jurisdiction is resolved.  By a previous order, we granted the
first requested extension and set the due date for Appellees’ brief as January
21, 2009.
            The briefing thus far submitted on the
question of this Court’s jurisdiction has not been focused on the nature of the
second hearing held by the trial court.  In particular, the focus has not been
whether the trial court, in effect, has granted a motion for reconsideration,
reconsidered the issue, and again refused to dismiss the suit or whether the
denial after the second hearing was, in effect, simply a refusal to reconsider
the issue.  Thus, neither party has addressed the question and policy
considerations of whether a party can, or should be able to, file a second
motion to dismiss as opposed to a motion for reconsideration of a ruling on a
prior motion to dismiss, and what impact, if any, that has on our jurisdiction
of an interlocutory appeal of the second denial.
            We have determined that we would like
the benefit of the parties’ briefing of these issues in addition to the brief
on the merits from Appellees.  We, therefore, grant, in part, Appellees’
motions for extension of time to file their brief on the merits (filed December
29, 2008 and January 16, 2009).  Appellees’ request to extend the due date
until after the Court has ruled on the question of the Court’s jurisdiction is,
however, denied.
            Briefing that any party desires to
file regarding the supplemental jurisdictional issues discussed above is due 35
days after the date of this Order.
            Appellees’ brief on the merits of the
issues is due 35 days after the date of this Order.
                                                                        PER
CURIAM
 
Before
Chief Justice Gray,
            Justice
Reyna, and
            Judge
Berchelmann[1]
Order
issued and filed October 21, 2009
Do
not publish




[1] 
The Honorable David A. Berchelmann, Judge of
the 37th District Court, sitting by assignment of the Chief Justice
of the Supreme Court of Texas pursuant to section 74.003(a) of the Government
Code.  See Tex. Gov’t Code Ann.
§ 74.003(a) (Vernon 2005).


