All American Excavation, Inc. v. Austin Materials, LLC ( 2015 )

ACCEPTED 04-15-00782-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 12/30/2015 4:24:49 PM KEITH HOTTLE CLERK ________________________________________________________________________ CASE NO. 04-15-00779-CV FILED IN 4th COURT OF APPEALS ________________________________________________________________________ SAN ANTONIO, TEXAS 12/30/2015 4:24:49 PM In the Court of Appeals KEITH E. HOTTLE For the Fourth Judicial District of Texas Clerk San Antonio, Texas ________________________________________________________________________ ALL AMERICAN EXCAVATION, INC. Plaintiff-Appellant, v. AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY Defendant-Appellee. ________________________________________________________________________ On Appeal from Cause No. 2015-CI-10299 In the 131st Judicial District Court of Bexar County, Texas The Honorable Johnny D. Gabriel, Jr. Presiding ________________________________________________________________________ CASE NO. 04-15-00780-CV [related appeal] ALL AMERICAN EXCAVATION, INC. Plaintiff-Appellant, v. AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY Defendant-Appellee. ________________________________________________________________________ On Appeal from Cause No. 2015-CI-10743 In the 224th Judicial District Court of Bexar County, Texas The Honorable Cathy Stryker Presiding ________________________________________________________________________ 3 ________________________________________________________________________ CASE NO. 04-15-00781-CV [related appeal] ALL AMERICAN EXCAVATION, INC. Plaintiff-Appellant, v. AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY Defendant-Appellee. ________________________________________________________________________ On Appeal from Cause No. 2015-CI-13685 In the 57th Judicial District Court of Bexar County, Texas The Honorable Antonea Arteaga Presiding ________________________________________________________________________ CASE NO. 04-15-00782-CV [related appeal] ALL AMERICAN EXCAVATION, INC. Plaintiff-Appellant, v. AUSTIN MATERIALS, LLC dba RAMMING PAVING COMPANY Defendant-Appellee. ________________________________________________________________________ On Appeal from Cause No. 2015-CI-11880 In the 438th Judicial District Court of Bexar County, Texas The Honorable Gloria Saldaña Presiding 4 Appellant’s Motion for Consolidation and Motion for Extension of Time to File Appellant’s Brief TO THE HONORABLE COURT OF APPEALS: Each of the above four (4) appeals arose from the filing of four Notices of Accelerated Appeal by the Appellant in each of the underlying cases on December 10, 2015. The basis of the Appeal in each suit is the “Order Denying Defendant’s Motion to Abate and Compel Arbitration” entered in each of the above-referenced cases by the 131st Judicial District Court of Bexar County Texas on December 4, 2015, which was entered after a single consolidated hearing for all four cases was held on November 20, 2015 upon the Appellant’s four virtually identical “Motion to Abate and Compel Arbitration” filed in each respective case. Although the Appellant had filed a Motion to Consolidate the four underlying cases, the District Court entered its “Order Denying the Motion to Abate and Compel Arbitration” in each of the cases prior to ruling upon the Motion to Consolidate. The issues, evidentiary record, transcript, and pleadings in each appeal will be essentially identical and judicial economy would be maximized by the consolidated briefing and argument of each of the four appeals. Therefore the parties would respectfully request the Court consolidate each of the above appeals for the purposes of briefing and oral argument, if necessary. This Court’s judgment, and/or any related order, mandate or decision, can thereafter issue separately in each of the four appeals to the underlying cases below 5 (without prejudice to the Appellant’s Motion to Consolidate, if necessary). In addition, the reporter’s record in each of the cases is identical (and the clerk’s records are virtually identical), however, the various records in each respective case were filed in this Court on separate days. Consequently, the deadline set for the filing of the Appellant’s Brief under Texas Rule of Appellate Procedure 38.6(a) in Case No. 04-15-00780-CV in each of the Appeals fall upon different dates, with the earliest deadline being January 11, 2016. Furthermore, the supplemental clerk’s record in each of the four cases has not yet been filed in this Court, and the record is therefore incomplete despite the briefing deadlines in effect. As it would be uneconomical to prepare and file briefing in Case No. 04-15-00780-CV (the case in which the clerk’s record and reporter’s record were initially filed), when the issues in each appeal will be identical and the request for the appeals’ consolidation, Appellant respectfully requests that, pursuant to Texas Rule of Appellate Procedure 38.6(d), this Court order the 20-day deadlines applicable to an accelerated appeal under Texas Rule of Appellate Procedure 38.6(a) begin to run upon the later of the date on which the record in each appeal is made complete, or the date on which the Order consolidating the four appeals. No prior extensions have been previously requested or granted. Prayer Appellant respectfully requests that the Court consolidate Case Nos. 04-15-00779-CV, 04-15-00780-CV, 04-15-00781-CV, and 04-15-00782-CV, for the 6 purposes of briefing and oral argument, and additionally order that the deadlines set forth in Texas Rules of Appellate Procedure 38.6(a) begin to run upon such consolidation, or upon the clerk’s record becoming complete upon the filing of the clerk’s supplemental record in each of the cases, whichever date be later. Respectfully submitted, TAUBE SUMMERS HARRISON TAYLOR MEINZER BROWN, LLP By: /s/ Neal Meinzer Neal Meinzer State Bar No. 00797065 nmeinzer@taubesummers.com S. Alex King State Bar No. 24067708 aking@taubesummers.com 100 Congress Avenue, Suite 1800 Austin, Texas 78701 Telephone: (512) 472-5997 Telecopier: (512) 472-5248 ATTORNEYS FOR APPELLANT CERTIFICATE OF CONFERENCE On December 28, 2015 and December 30, 2015, I conferred with Appellee’s counsel regarding this motion, and the parties do not agree on the relief requested. /s/ Neal Meinzer Neal Meinzer/Alex King 7 CERTIFICATE OF SERVICE I certify that on December 30, 2015, a true and correct copy of the foregoing document was served on the following counsel of record by electronic filing: Lee Elms Thomas S. Harmon Elms Harmon Macchia, LLC 2702 Treble Creek San Antonio, Texas 78258 /s/ Neal Meinzer Neal Meinzer/Alex King 8