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

            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