Brian C. Simcoe v. Thomas Christopher and Catrina Christopher

• Court: Court of Appeals of Texas
• Decided: January 15, 2015
• Docket: 04-14-00735-CV
• Status: Published

Opinion

ACCEPTED 04-14-00735-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/15/2015 4:41:50 PM KEITH HOTTLE CLERK

FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 1/15/2015 4:41:50 PM KEITH E. HOTTLE Clerk

CAUSE NO. 04-14-00735-CV _____________________________________________________ IN THE COURT OF APPEALS FOR THE FOURTH JUDICIAL DISTRICT SAN ANTONIO, TEXAS

Brian C. Simcoe, Appellant v. Thomas Christopher and Catrina Christopher, Appellees _____________________________________________________ APPEAL FROM THE 45TH JUDICIAL DISTRICT COURT BEXAR COUNTY, TEXAS HONORABLE JUDGE BARBARA HANSON NELLERMOE, JUDGE PRESIDING

APPELLEES’ RESPONSE TO MOTION FOR RECONSIDERATION AND REINSTATEMENT OF APPEAL

James A. Rodriguez Law Office of James A. Rodriguez SBN: 24057667 540 S. St. Mary’s Street San Antonio, Texas 78205 Phone: (210) 581-3990 Fax: (210) 224-8214 Email: james@rodriguezlaw.us Attorney for Appellees TO THE HONORABLE COURT OF APPEALS:

1. Appellees Thomas and Christina Christopher, in answer to the Court’s request,

file this Response to Appellant’s Motion for Reconsideration and Motion to Reinstate

Appeal.

2. Appellant Brian Simcoe failed to timely file a notice of appeal in this case but

filed the notice within the fifteen-day grace period provided by the Rules. See TEX. R.

APP. P. 26.1; 26.3. The Court then required Appellant to provide reasonable explanation

for his failure to timely file the notice of appeal, citing Verburgt v. Dorner, 959 S.W.2d

615, 617 (Tex. 1997) and TEX. R. APP. P. 26.3; 10.5(b)(1)(C).

3. Appellant responded that he had believed a motion for new trial would

successfully maintain the case in the trial court and that he had delayed filing his notice

of appeal until after a ruling on that motion and because he had been considering the

financial impact of filing an appeal.

4. On November 26, 2014, this Court dismissed this appeal and found that

Appellant’s stated reasons for his failure to timely file his notice of appeal did not

constitute a reasonable explanation for such failure. Specifically, the Court found that

Appellant’s delay was deliberate and not the result of accident or mistake.

5. On December 1, 2014, Appellant filed his Motion to Reconsider and Reinstate the

appeal, stating for the first time that counsel for Appellant had miscalculated the appellate

deadlines, which the Court in Dorner had ruled was a reasonable explanation. See

Dorner, 959 S.W.2d at 617.

6. Appellees assert that this Motion is an attempt by Appellant to change the facts to

suit necessity by tracking the reasoning of Dorner. Appellant had full opportunity to state the facts that would have supported an argument of accident or mistake in his initial

response to the Court.

7. Moreover, Appellant’s docketing statement requests that the Court supersede or

stay the execution of the judgment rendered by the Court below, but Appellant has to date

failed to file a supersedeas bond or other deposit with the Clerk of the Court. See TEX. R.

APP. P. 24. Appellee cites this as additional evidence of Appellant’s lack of diligence in

perfecting and prosecuting this appeal.

8. Wherefore, premises considered, Appellants respectfully request that the Court

affirm its earlier Order and dismiss this appeal for lack of jurisdiction.

9. In the alternative, should the Court reverse its prior Order, Appellants respectfully

request that the Court stay this appeal and order Appellant to file a supersedeas bond or

other security with the clerk of the Court below by a date certain and, should Appellant

fail to file such bond or security by that date, order this appeal dismissed.

Respectfully Submitted,

______________________________ James A. Rodriguez State Bar No. 24057667 540 S. St. Mary’s Street San Antonio, Texas 78205 Phone: (210) 581-3990 Fax: (210) 224-8214 Email: james@rodriguezlaw.us Attorney for Appellees Thomas and Catrina Christopher CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Response to Motion for Reconsideration

and Reinstatement of Appeal was served on each party or that party’s lead counsel in

accord with the Texas Rules of Appellate Procedure on January 15, 2015, as follows:

Party: Brian C. Simcoe Lead Attorney: Sarah Anne Lishman Address of Service: 310 S. St. Mary’s St., Suite 845 San Antonio, Texas 78205 Method of Service: Fax to (210) 308-5669 Date of Service: January 15, 2015

Party: Adria Joy Simcoe, Pro Se Address of Service: 115 Osprey Haven San Antonio, Texas 78253 Method of service: Email to adriasimcoe@yahoo.com, per request Date of Service: January 15, 2015

______________________________ James A. Rodriguez State Bar No. 24057667 Attorney for Appellees Thomas and Catrina Christopher