Azleway Charter School and Azleway, Inc. v. Lacy Hogue

• Court: Court of Appeals of Texas
• Decided: December 22, 2015
• Docket: 12-15-00257-CV
• Status: Published

Opinion

ACCEPTED 12-15-00257-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 12/22/2015 3:34:32 PM Pam Estes CLERK

NO. 12-15-00257-CV

IN THE TWELFTH COURT OF APPEALS FILED IN 12th COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS ______________________________________ 12/22/2015 3:34:32 PM PAM ESTES AZLEWAY CHARTER SCHOOL Clerk AND AZLEWAY, INC., APPELLANTS,

V.

LACY HOGUE APPELLEE _______________________________________

ON APPEAL FROM THE COUNTY COURT AT LAW #3 SMITH COUNTY, TEXAS CAUSE NO 64,330-B HON. FLOYD GETZ, PRESIDING _______________________________ MOTION FOR RECONSIDERATION _________________________________________

WILLIAM S. HOMMEL, JR. TEXAS BAR NO. 09934250 HOMMEL LAW FIRM 1404 RICE ROAD, SUITE 200 TYLER, TEXAS 75703 903-596-7100 469-533-1618 (FACSIMILE)

ATTORNEY FOR APPELLANTS TO THE HONORABLE COURT OF APPEALS:

Azleway Charter School and Azleway, Inc., Appellants, make this Motion for

Reconsideration and would show:

1. Appellants’ brief was due to be filed on November 30, 2015. Appellant

counsel received a notice from the Court regarding the fact that the brief was not

timely filed; however, the email notice from the Court went to counsel’s junk email

folder.1

2. Counsel for Appellants did not willfully ignore the Court’s directive in

failing to heed the warning of the Court regarding the lateness of Appellants’ brief.

The failure to file the brief timely was not the result of conscious indifference, but

was due to inadvertence on the part of counsel. The late briefing notice is the only

notice from the Court which went to counsel’s junk email folder. The first time this

matter came to counsel’s attention, was the Court’s dismissal of the appeal. This

Motion for Reconsideration is filed as soon as possible following the dismissal of

the appeal.

3. This court has a great deal of discretion in deciding the question of

whether or not to dismiss an appeal for late filing of briefs. Lueck v. Carter, 466

S.W.2d 90, 91 (Tex. Civ. App. 1971). Since the case was not set for submission, the

1 See: Ex A – Screenshot of counsel’s junk email folder. 2 Appellee will not be materially injured by permitting the Appellant to file a late brief.

Texaco, Inc. v. Joffrion, 363 S.W.2d 827 (Tex.Civ.App. Texarkana 1962, writ ref'd

n.r.e.); Montgomery Ward & Co. v. Dalton, 602 S.W.2d 130, 131 (Tex. Civ. App.

1980). Counsel for Appellants has prepared the brief and submitted it to the Court

for filing if the Court sees fit to reinstate the appeal.

4. This motion is not made for the purpose of delay, but to that justice

might be served.

WHEREFORE, Appellants respectfully request the Court reconsider its

dismissal of the appeal for want of prosecution and upon final consideration reinstate

Respectfully Submitted,

______________________________ William S. Hommel, Jr. Hommel Law Firm 1404 Rice Road, Suite 200 Tyler, TX 75703 903-596-7100 469-533-1618 (Facsimile)

Attorney for Appellants

3 CERTIFICATE OF CONFERENCE

I certify that before filing this motion I attempted to confer by both telephone and email on December 17, 2015, with counsel for appellee, Walter Taylor, and was unable to confer.

____________________________________ William S. Hommel, Jr.

CERTIFICATE OF SERVICE

I certify that on December 22, 2015, a true copy of the foregoing Motion for Reconsideration was served on all counsel of record via facsimile and email.

4 EXHIBIT A