1 NO. 01
- 14
- 00779
- CV In the Court of Appeals First Judicial District of Texas Houston, Texas

___________________________________ POINTE WEST CENTER, LLC Appellant ,

vs. IT’S ALIVE, INC. AND SHAMIL QURESHI Appellees/Cross

- Appellants ,

__________________________________________________________________ Appeal from County Civil Court at Law No. 1 Harris County, Texas

Cause No. 1022800

__________________________________________________________________ APPELLEES/ CROSS
- APPELLANTS’ FIRST MOTION FOR EXTENSION OF TIME FOR THIRTY DAYS TO FILE BRIEF

__________________________________________________________________ To the Honorable Court of Appeals:
It’s Alive, Inc. and Shamil Qureshi, Appellees / Cross

- Appellants ask the
Court to grant an extension of time of thirty days to file their Cross

- Appellants’ Brief. This is the First Motion to Extend Time for Filing their B rief filed on behalf of these parties. ACCEPTED 01-14-00779-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 2/27/2015 2:09:06 PM CHRISTOPHER PRINE

CLERK2 1. Appellant is Pointe West Center, LLC (“Pointe West”)

. Appellees/Cross

- Appellants are It’s Alive, Inc. and Shamil Qureshi (hereinafter referred to as “It’s Alive and Qureshi”)
2. The Trial Court (Harris County Civil Court at Law No.1) signed the Final Judgment on June 18, 2014. The Final Judgment awarded Appellant damages in the amount of Fifteen Thousand Dollars ($15,000.00) for damages to the leased premises by It’s Alive . The Judg e refused to grant Appell ant’s Motion for Judgment N.O.V. to award Appellant damages of an additional Five Thousand Dollars ($5,000.00) as holdover rent and failed to award Appellant attorney’s fees of approximately Fifty Thousand Dollars ($50,000.00).
3. After the Appellant’s M otion for J udgment N.O.V. and M otion for
R econsideration were denied, Pointe West filed its Notice of Appeal on September 17, 2014.

4

. On September 23, 2014, It’s Alive and Qureshi filed their notice of appeal

. This notice of appeal was timely pursuant to TRAP 26.1(d) because the Notice of Appeal was filed within fourteen days after the Appellant Pointe West Plaintiff filed its Notice of Appeal. At trial It’s Alive and Qureshi had moved for an instructed verdict on the basis that Pointe West had not presented legally sufficient evidence of its reasonable cost of repair damages and therefore no award of damages should have been entered in favor of Pointe West. It’s Alive3 and Qureshi have filed their cross

- appeal contesting the award of damages in the Judgment to Appellant.

5. On February 25, 2015, the Court of Appeals granted Pointe West’s motion to extend the time for the filing of its Appellant’s Brief to February 23, 2015. As a result, It’s Alive and Qureshi ’s Appellees’ Brief is due March 25,
2015.
6. Appellees’ counsel had intended to raise Appellees’ cross - appeal issues in their appeal by cross

- points. However, it is not clear to Appellees’ counsel whether these issues should be raised in Appellees’ b rief as cross

- points or whether these issues should be raised in a separate brief as Cross

- Appellant. In Byrd v. Estate of Nelms , 154 S.W.3d 149, 165 (Tex. App.

— Waco 2004, pet. denied) the Court of Appeals noted that the Texas Rules of Appellate Procedure do not clearly delineate when a cross

- appellant must file its brie f raising issues on a

cross - appeal . The Court of Appeals noted that if both parties had presented themselves as appellants it would have presented the possibility of confusion with respect to the references to the parties in the opinion. The Court of Appeals decided to exercise their discretion and allow the a ppellee in that case to have its

cross - appeal point to be considered by cross

- point in the appellee’s brief

. 7. Out of an abundance of caution, It’s Alive and Qureshi request that the time for filing Appellees/Cross

- Appellants’ Brief on its appeal be extended by4 thirty days so that Appellees/Cross

- Appellants’ Appellees’ Brief and Cross

Appellants’ Brief would be due at about the same time. Alternatively, if the Court of Appeals determines that Appellees/ Cross

- Appellants should include their cross appeal issues as cross

- issues in its Appellees’ Brief, then Appellees/Cross

Appellants will file one brief on or before March 25, 2015. Appellees/Cross

- Appellants request that the Court of Appeals grant this Motion to Extend Time for filing of Appellees/Cross

- Appellants’ Appellants’ Brief until March 25, 2015, or alternatively, order that Appellees/Cross

- Appellants may

ra ise their cross

- appeal points as cross

- points in their Appellees’ Brief, or for such other and further relief to which they may be entitled.
Respectfully submitted, DUNN, NEAL & GERGER, L.L.P. By:

____ /s/ James A. Dunn

___ __________ Jame s A. Dunn Texas Bar No. 06244800 3006 Brazos Street Houston, Texas 77006 Tel.: (713) 403

- 7405 Fax.: (713) 960

- 0204 Email: jdunn@dnglegal.com Attorney for Appellees/Cross Appellants5 CERTIFICATE OF CONFERENCE
O n February 24 , 201 5 , Appellant’s Counsel, Spencer E. Dunn, indicated he was not opposed to this Motion to Extend Time for Filing Brief for thirty days

.

___ /s/ James A. Dunn

_ ___________ James A. Dunn

CERTIFICATE OF SERVICE I certify that on February 27 , 201 5 , a true and correct copy of the foregoing instrument was served on Appellant’s counsel, Spencer E. Dunn, 4669 Southwest Freeway, Suite 760, Houston, Texas 77027, by electronic service through the e

filing case manager in accordance with the Texas Rules of Civil Procedure.

______ /s/ James A. Dunn

___ James A. Dunn