David Gillespie and Michael O'Brien v. A.L. Hernden and Frederick R. Zlotucha

Opinion

ACCEPTED 04-15-00405-cv

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS 9/30/2015 12:52:27 PM

KEITH HOTTLE

CLERK

NO. 04-15-00405-CV

FILED IN

In the Court of Appeals 4th COURT OF APPEALS SAN ANTONIO, TEXAS

for the 09/30/2015 12:52:27 PM Fourth District KEITH E. HOTTLE Clerk

San Antonio, Texas

DAVID GILLESPIE,

Appellant V.

A.L. HERNDEN,

Appellee

On Appeal from the 408th Judicial District Court of Bexar County, Texas (Cause No. 2013-CI-10278, Hon. Cathleen M. Stryker, Presiding)

APPELLEE’S MOTION FOR EXTENSION OF TIME

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

1. Appellant, David Gillespie, herewith files his response to this Court’s

Order of September 15, 2015.

2. Appellant filed its Notice of Appeal on July 3, 2015, two days after

its due date of July 1, 2015. The Clerk’s record was filed on September 9, 2015.

3. Appellant advises the Court that due to a calendar error caused by the

preparation of a response to Motion for Summary Judgment in the case styled

Civil Action No. 5:14-CV-00733; John Gonzales vs. Robles and Sons, Inc.,

Robles Service Group, LLC, Vaughn Construction Company, Sunbelt Rentals

Industrial Services, LLC and JLG Industries, Inc.; In the United States District

Court Western District of Texas San Antonio Division, the hearing on Motion for

Rulings in the case styled Cause No. 2012-CI-09903; John Joseph Carreon and

John A. Polito vs. Greater San Antonio Transportation Company d/b/a Yellow

Cab. in preparation for trial on July 6, 2015, and the final preparation of the

documents in the case styled Cause No. 5:14-CV-00149; Candelario V. Gonzalez,

et al. v. Cooper Tire and Rubber Company, et al, the Notice of Appeal was not

filed timely. Undersigned counsel because of his schedule, inadvertently failed to

file the Notice but upon discovery immediately did so.

4. Appellee respectfully requests accept the Notice of Appeal that was

filed within the 15 day grace period as timely and for general relief.

5. Appellee files this Motion for Extension of Time to File Appellant’s

Brief Notice of Appeal pursuant to Texas Rules of Appellate Procedure 26.3,

10.5(b)(1)(C), 38.6(d), and the Local Rules of Fourth Court of Appeals.

WHEREFORE, Appellant, by and through its undersigned Counsel,

requests the Court consider this motion and extend the time for filing its

Appellant’s Notice of Appeal until July 3, 2015.

Respectfully submitted,

GENE TOSCANO, INC. 846 Culebra Road, Suite 104 San Antonio, Texas 78201-6244

Telephone: (210) 732-6091 Facsimile: (210) 735-4167

BY: /s/ Andrew E. Toscano ANDREW E. TOSCANO Attorney at Law State Bar No. 00786832 COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing has this day been served on the counsel below, in the means and by the manner indicated hereinafter:

Mr. Richard A. Sparr, Jr. 1313 N. E. Loop 410, Suite 100 San Antonio, Texas, 78209 SENT BY FACSIMILE TRANSMISSION TO: (210) 828-5444

Mr. Frederick R. Zlotucha 222 Main Plaza East San Antonio, Texas 78205 SENT BY FACSIMILE TRANSMISSION TO: (210) 227-8316

FOURTH COURT OF APPEALS Cardena-Reeves Justice Center 300 Dolorosa Ste. 3200 San Antonio, Texas 78205 210-355-2762- fax

Signed on September 30, 2015.

/s/ Andrew E. Toscano Andrew E. Toscano Counsel for Appellee