                                                                                       ACCEPTED
                                                                                   01-15-00716-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              12/3/2015 4:57:22 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK


                      NO.01-15-00716-CV

                             IN THE                               FILED IN
                                                           1st COURT OF APPEALS
                                                               HOUSTON, TEXAS
                 FIRST COURT OF APPEALS
                                                           12/3/2015 4:57:22 PM
                                                           CHRISTOPHER A. PRINE
                    AT HOUSTON, TEXAS                              Clerk




    ZIMAC CARE CENTER, INC., VIRGINIA AKUCHIE, ET AL,
                       Appellants,

                                V.

                        NGOZINWEZE
                          Appellee


         On Appeal from the 127th Judicial District Court
                      Harris County, Texas
                     Cause No. 2011-52006


APPELLANTS' RESPONSE TO APPELLEE'S MOTION TO DISMISS


                                     Respectfully submitted,

                                     /s/Kurt G. Clarke

                                     Kurt G. Clarke
                                     SBN: 04316720
                                     6200 Savoy, Ste. 458
                                     Houston, Texas 77036
                                     Tel: (713) 779-5500
                                     Fax: (713) 779-6668
                                     E-mail: kgclaw@aol.com
                                     Attorney for Appellants
                                NO.01-15-00716-CV

                                        IN THE

                           FIRST COURT OF APPEALS

                               AT HOUSTON, TEXAS



           ZIMAC CARE CENTER, INC., VIRGINIA AKUCHIE, ET AL,
                              Appellants,

                                           V.

                                   NGOZINWEZE
                                     Appellee


                  On Appeal from the 127th Judicial District Court
                               Harris County, Texas
                              Cause No. 2011-52006


   APPELLANTS' RESPONSE TO APPELLEE'S MOTION TO DISMISS


TO THE HONORABLE COURT OF APPEALS:

           COME NOW, ZIMAC CARE CENTER, INC., VIRGINIA

AKUCHIE, ET AL, Appellants in the above styled and numbered case and

and file this response to Appellee's Motion to Dismiss and would respectfully show as

follows:

                                   BACKGROUND

      1.     The trial court signed a final judgment on May 1, 2015.
       2.      Appellants filed a Motion for New Trial on May 29, 2015.

       3.      In prosecuting its Motion for New Trial, Appellants sought a date as soon as

practicable.

       4.      A hearing was required for a date prior to August 2015 at 10:30 a.m. See

Exhibit A attached hereto.

       5.      The Trial Court ruled on the Motion for New Trial on August 7,2015.           See

Exhibit B.

                                           ANALYSIS

       This case presents a fairly novel question and that is whether the trial court on

August 7, 2015 had lost plenary power to rule on Appellants' motion for new trial and if it

did, what is the practitioner's dilemma.    Should the practitioner have filed a notice of

appeal, and then request an abatement for the trial court to make its ruling. In hindsight, it

would have been procedurally prudent to do so.

       However, it will also appear that had Appellants requested leave or an extension of

time to notice the appeal, Appellants would have had until August 20, 2015 to do so. The

Notice of Appeal was filed on August 18,2015.

       This Court should allow the appeal because there was no conscious disregard, nor

willful neglect and this Court has the authority to allow Appellants leave to late file their

notice of appeal, which leave Appellants now seek for then.

       This Court should allow the appeal.
      WHEREFORE, PREMISES CONSIDERED, Appellants, pray that this appeal be

allowed.

                                              Kurt G. Clarke

                                              IslKurt G. Clarke

                                              Kurt G. Clarke
                                              SBN: 04316720
                                              6200 Savoy, Suite 458
                                              Houston, Texas 77036
                                              Phone: (713) 779-5500
                                              Fax: (713) 779-6668
                                              E-mail: kgdaw@aol.com.
                                              Attorney for Appellants
                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded    on this the 3rd day of December,      2015, either by

E-service provider, telecopier,   first class mail, certified mail, return receipt

requested and/or by messenger     to:

          Robin A. Bluitt
          11152 Westheimer #671
          Houston, Texas 77042
          Fax # (713) 978-6064
          E-mail: atty.bluitt@sbcglobal.net



                                                                /s/ Kurt G. Clarke

                                                                Kurt G. Clarke
                                           LAW OFFICES
                                                      OF

                                    KURT          G. CLARKE
                                     ATTORNEY~ MEDIATOR~ ARBITRATOR

KURT G. CLARKE*                                                                  FREDERICK O. BOADU
HELEN MALVEAUX                                                                   COUNSEL TO THE FIRM




                                               June 3, 2015

Ms. Susan Brooks
Clerk
127th District Court
Harris County, Texas


       Re:        Cause No. 2011-52006; Ngozi Nweze v. Zimac Care Center Inc. Et al;
                  In the 127th District Court, Harris County, Texas

Dear Ms. Brooks:

       Kindly present Defendants' Emergency Motion to Judge Sandill's attention for
consideration.

       Thank you for your usual cooperation and assistance in this matter.


Sincerely,




Kurt G. Clarke

c.c.: Robin Bluitt




                             6200 SAVOY DRIVE, SUITE 458, HOUSTON, TEXAS 77036
                                    PHONE (713) 779-5500 FAX (713) 779-6668
                                      "FELLOW - COLLEGE OF THE STATE BAR
                                                                                                         6/3/20156:41 :48 PM
                                                                                   Chris Daniel - District Clerk Harris County
                                                                                                       Envelope No. 5537449
                                                                                                            By: Susan Brooks
                                                                                                  Filed: 6/3/2015 6:41:48 PM

                                     CAUSE NO. 2011-52006

NGOZINWEZE                                             §       IN THE DISTRICT COURT
(PETITIONER)                                           §
                                                       §
VS.                                                    §       127THJUDICIAL COURT
                                                       §
ZIMAC CARE CENTER INC.,                                §
VIRGINIA AKUCHIE,                                      §
GERTUDE CLEVELAND,                                     §
and FAITH BATE                                         §
(DEFENDANTS)                                           §       HARRIS COUNTY, TEXAS

                  DEFENDANT'S MOTION FOR EMERGENCY HEARING ON
                              MOTION FOR NEW TRIAL

TO THE HONORABLE          JUDGE OF SAID COURT:

      COME NOW, Defendants Virginia Akuchie and Zimac Care Center Inc. (Zimac) et aI, and file

this Motion for Emergency Hearing on its Motion for New Trial and would respectfully show the

Court as follows:

                                                  J.

1. The above case was tried in January 2015.

2. This Court entered Judgment on May 1,2015.

3. Defendants filed a Motion for New Trial on May 29, 2015.

4. Defendants desire to have a hearing on the Motion for New Trial.

5. Defendants were advised that the next available hearing date based on the Court's schedule is

August 7, 2015.

6. Defendants request this hearing because August 7,2015 will be ninety-eight (98) days post

judgment and will deprive Defendants of any opportunity to obtain a rehearing.

7. If this case can be assigned to a visiting Judge prior to the end of June, Defendants will have no


                                                  1
objection.

8. In the alternative, Defendants ask the Court to set this matter for hearing as soon as practicable

and prior to June 30, 2015

                                                  II.

9. For these reasons, and in the interest of justice and fairness, Defendants ask the Court to conduct a

hearing, receive evidence and after the hearing grant a new trial.

                                                        Respectfully   submitted,



                                                        IslKurt G. Clarke

                                                        Kurt G. Clarke
                                                        SBN: 04316720
                                                        6200 Savoy, Ste. 458
                                                        Houston, Texas 77036
                                                        Tel: (713) 779-5500
                                                        Fax: (713) 779-6668
                                                        E-mail: kgc1aw@aol.com
                                                        Attorney for Defendants




                                                   2
                             CERTIFICATE OF CONFERENCE

       I hereby certify that I have discussed this motion on June 3, 2015, with attorney Robin

Bluitt and she is opposed to Defendants obtaining a new trial.


                                                            /s/ Kurt G. Clarke

                                                            Kurt G. Clarke




                                                3
                                 CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing instrument was

forwarded on this the 3rd day of June, 2015, either by telecopier, first class mail,

certified mail, return receipt requested and/or by messenger to:

            Robin A. Bluitt
            7457 Harwin Dr. # 232
            Houston, Texas 77036
             Served Via Fax # (713) 978-6064 &
             E-mail: atty.bluitt@sbcglobal.net


                                                                      /s/ Kurt G. Clarke

                                                                      Kurt G. Clarke




                                                  4
                                   CAUSE NO. 2011-52006

NGOZINWEZE                                          §      IN THE DISTRICT COURT
(PETITIONER)                                        §
                                                    §
VS.                                                 §      127TH JUDICIAL COURT
                                                    §
ZIMAC CARE CENTER INC.,                             §
VIRGINIA AKUCHIE,                                   §
GERTUDE CLEVELAND,                                  §
and FAITH BATE                                      §
(DEFENDANTS)                                        §      HARRIS COUNTY, TEXAS

                      ORDER GRANTING EMERGENCY HEARING

       Came on this day, Defendants' Motion for Emergency Hearing on its Motion for New

Trial. This Court, having considered the Motion, finds that the Motion should be granted.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT a hearing on

Defendants' Motion for new trial be set for ----------------- , 2015.


       Signed this the __     day of                                  , 2015.




                                                    Judge Presiding


APPROVED AS TO FORM:


IslKurt G. Clarke

Kurt G. Clarke
6200 Savoy, Suite 458
Houston, Texas 77036
Tel. (713) 779-5500
Fax. (713) 779-6668
                                                CHRIS DANIEL
                                                         District Clerk
                                                    Houston, Texas     77002


             KU~~     GODFREY        CLARKE
                      SAVOY     DR SUITE      458
                    "ON      TX 77036




CASE 2011C",:'006 CRT             127 BE ADVISED        ON 08/07/2015          THE   FOLLOWING   ACTIVITY   OCCURRED.
NWEZE, 11(; I Oms)                   vs.    ZIMAC    CARE CENTER INC
ORnER   ~       "NG         MOTION    FOR   NEW TRIAL      SIGNED


CA::E 2CJ55                  CRT 157 BE ADVISED          ON 08/07/2015   THE FOLLOWING           ACTIVITY OCCURRED.
BAILEY  I'          ii IE    LEMONS (INDIVIDUALLY          AND   VS.   CHRISTUS  HEALTH          GULF COAST
ORDER   G:U         ING      OBJECTION      TO DISCOVERY       REQUEST    SIGNED




                                                                                                                   JlHOC
