David Thompson, Individually and as Next Friend of B. T., a Minor v. Charles Neighbor and Charles Farmer

• Court: Court of Appeals of Texas
• Decided: January 14, 2015
• Docket: 01-15-00064-CV
• Status: Published

Opinion

ACCEPTED N/A FIRST COURT OF APPEALS HOUSTON, TEXAS 1/14/2015 3:13:30 PM CHRISTOPHER PRINE CLERK

Cause No. 01-15-00064-CV

DAVID THOMPSON, Individually and § IN THE FIRST DISTRICT RECEIVED IN as Next Friend of BRYSON TOLER, § 1st COURT OF APPEALS a Minor, § HOUSTON, TEXAS § 1/14/2015 3:13:30 PM Appellants, § CHRISTOPHER A. PRINE § Clerk V. § COURT OF APPEALS § CHARLES NEIGHBOR and § CHARLES FRIEND § § Appellees. § HOUSTON, TEXAS On appeal from the 334"‘ District Court of Harris County, Texas

PLAINTIFFS’ MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL

TO THE HONORABLE FIRST COURT OF APPEALS: DAVID THOMPSON, Individually and as Next Friend of BRYSON TOLER, a Minor,

Appellants here and Plaintiffs below, move this Court to extend time to file their notice of appeal

pursuant to Texas Rule of Appellate Procedure 26.3, and in support hereof would respectfully

show as follows:

1. On October 3, 2014, the 334“' District Court of Harris County, Texas, signed a

final judgment in Cause No. 2011-16031, DA VID THOMPSON, Individually and as Next Friend

of BRYSON TOLER, a Minor, Plaintfi v. CHARLES NEIGHBOR and CHARLES FRIEND, Defendants.

2. Appellants timely filed a Motion for New Trial on October 31, 2014. Appellants’

Notice of Appeal was originally due to be filed in the trial court on January 1, 2015.

3. Appellants filed in the trial court their Notice of Appeal on Januzny 14, 2015,

which was within fifteen (15) days of the date the notice was originally due to be filed. A copy of that notice is attached to this motion. 4. The Notice of Appeal was not timely filed because of a miscalculation of the

appellate deadlines under the Texas Rules of Appellate Procedure and difficulty communicating

with the client during the holidays. Appellants’ failure to timely file the notice of appeal was not

deliberate or intentional, but was the result of inadvertence, mistake, or mischzmce.

5. As shown by the attached certificate of conference, H. Emerson Grogro, attorney

for Appellants, conferred with counsel for Appellee CHARLES FARMER and Appellee does

not oppose this motion to extend time.

WHEREFORE, DAVID THOMPSON, Individually and as Next Friend of BRYSON TOLER, a Minor, Appellants, respectfully pray that this Court grant them an extension of time to

file a notice of appeal under Rule of Appellate Procedure 26.3, and for such other and fiirther

relief to which they are justly entitled.

Respectfiilly submitted,

BANNWART & ASSOCIATES, P.C.

By: A THONY L. BANNWART State Bar No.2 00792344 H. EMERSON GROGRO StateBar No. 24087634 7322 Southwest Frwy., Ste. 1510 Houston, Texas 77074 Tel: (713) 807-0020 Fax: (713) 807-0040 anthony@barmwartlawfirm.com emerson.gmgro@bannwartlawfirm.com

ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF CONFERENCE I certify that I conferred with Mr. R. J. Blue, attorney of record for Defendant CHARLES FARMER via telephone on J anuaxy 14, 2015 about this motion and that Defendant is unopposed to this Motion to Extend Time to File Notice of Appeal.

BANNWART & ASSOCIATES, P.C. ~ / //1% ’1;./ EMERSON GROGRO ~./

ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing Plaintiffs’

Motion to Extend Time to File Notice of Appeal has this day been sent via electronic filing

and/or facsimile to Mr. R. J. Blue, attorney of record for Defendant CHARLES FARMER, at

Soulé, Baldwin & Fanaff, 11200 Richmond, Suite 250, Houston, Texas 77082, (281) 752-6329

(fax).

SIGNED this 14"‘ day of January, 2015.

2//ea /, “H”. EMERSONVGROGRO ATTORNEYS FOR PLAINTIFFS Cause No. 2011-16031

DAVID THOMPSON, Individually and IN THE DISTRICT COURT as Next Friend of BRYSON TOLER, a Minor,

Plaintiffs,

HARRIS COUNTY, TEXAS OO'36O'3€o00@>€47J60>OO'>50'3

v.

CHARLES NEIGHBOR and CHARLES FRIEND Defendants. 334T" JUDICIAL DISTRICT

PLAINTIFFS’ NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiff DAVID THOMPSON, Individually and as Next Friend of

BRYSON TOLER, a Minor, pursuant to Rule 25.1 of the Texas Rules of Appellate Procedure,

and file this Notice of Appeal, and in support hereof would respectfully show as follows:

1. Plaintiff DAVID THOMPSON, Individually and as Next Friend of BRYSON TOLER, a Minor, desires to appeal from the final judgment signed by this Court on October 3,

2014.

2. Plaintiff DAVID THOMPSON, Individually and as Next Friend of BRYSON TOLER, a Minor, appeals to either the First or the Fourteenth Court of Appeals. Respectfully submitted,

StateBar No. 24087634 7322 Southwest Frwy., Ste. 1510 Houston, Texas 77074 Tel: (713) 807-0020 Fax: (713) 807-0040 anthony@bannwartlawfirm.com eme1son.grogro@bannwartlawfirm.com

ATTORNEYS FOR PLAINTIFFS LOCAL RULE NOTICE OF AND ASSIGNMENT OF RELATED CASE IN APPEALS As required by the Local Rules Relating to the Assignment of Related Cases to and

Transfers of Related Cases between the First and Fourteenth Courts of Appeals, I certify that the

following related appeal or original proceeding has been previously filed in either the First or

Fourteenth Court of Appeals:

X None

T Caption:

Trial Court case number:

Appellate court case number:

SIGNED this 14"‘ day oflanuary, 2015.

BANNWART & ASSOCIATES, RC.

ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing Plaintiffs’ Notice

of Appeal has this day been sent via electronic filing and/or facsimile to Mr. R. J. Blue, attorney

of record for Defendant CHARLES FARMER, at Soulé, Baldwin & Fanaff, 11200 Richmond,

Suite 250, Houston, Texas 77082, (281) 752-6329 (fax).

SIGNED this 14“‘ day of January, 2015.

BANNWART & ASSOCIATES, P.C. 7.7”——. / /

By: H./EME'RSON‘{:(R6GRO

ATTORNEYS FOR PLAINTIFFS