Gerald Kostecka v. Smokey Mo's Franchise, LLC D/B/A Smokey Mo's BBQ

Opinion

ACCEPTED 03-15-00295-CV 7884378 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/18/2015 12:27:53 PM JEFFREY D. KYLE CLERK DOCKET NO. 3-15-00295-CV GERALD KOSTECKA § THIRD COURTFILED OF IN § APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS § 11/18/2015 12:27:53 PM V. § JEFFREY D. KYLE Clerk § SMOKEY MO'S FRANCHISE, § LLC D/B/A SMOKEY MO'S BBQ AUSTIN, TEXAS

APPELLANT’S SECOND AMENDED MOTION FOR EXTENSION OF TIME TO FILE REPLY BRIEF

COMES NOW, Appellant Gerald Kostecka, and pursuant to the

Texas Rules of Appellate Procedure 38.6(d) and 10.5(b), files this

Second Amended Motion for Extension of Time to File Reply Brief, and

in support thereof would show as follows:

I.

Appellant’s reply brief in this case is currently due November 19,

2015. For reasons set forth below, Plaintiff is requesting an extension of

6 days until November 25, 2015 to file his reply brief. This is the third

request for an extension of time to file his reply brief made by

Appellant. II.

On Tuesday afternoon, November 3, 2015, the house of the

undersigned counsel’s 86-year old mother in Round Rock, Texas was

flooded due to a break in a supply line in the house. A restoration

company was called out that day, but it was unable to save the hardwood

flooring which runs throughout a large portion of the first floor of the

house. New flooring will have to be installed when the subsurface has

been dried in a day or two and the insurance company approves it. The

undersigned counsel for Appellant will be handling these matters as his

mother cannot do so.

III.

In addition, the registered nurse caring for the mother of the

undersigned counsel happened to be at the house at the time of the

flooding and said afterward that the undersigned counsel’s mother will

have to be permanently moved into an assisted living center (or nursing

home) or receive care 24 hours, seven days a week at her home. This is

largely due to the fact that the undersigned counsel’s mother’s already fragile condition has been undermined by the trauma of the flooding

incident. The undersigned counsel is handling that transition.

IV.

The undersigned counsel has learned that this entire process is

more complicated and difficult than he had originally thought. For

example, while he is looking into places that his mother can be moved

on a more permanent basis, he has learned that the process of installing a

new wood floor in his mother’s house will require moving her this

coming week or the following week into a hotel for two to three weeks.

This is because the removal of the old floor materials and installation of

the new flooring will be very loud and create large amounts of dust. His

mother has a chronic lung problem so there is no question that she will

have to move to a hotel during installation. News like this is very

difficult on his mother, particularly given her current fragile condition,

as she has lived in the house without interruption since 1960.

Accordingly, in addition to having to plan for this temporary move to a

hotel, his mother’s need for care increases. V.

The undersigned counsel intends to file the appellate brief that is

currently due in 3rd Court of Appeals Case # 03-15-00511-CV by the

deadline of November 19, 2015. He requests additional time to file the

reply brief in the above styled and numbered case until November 25,

2015. He appreciates the consideration that the Court has given previous

requests for extension and regrets having to request another extension.

VI.

This Motion is not filed for delay only, but so that justice may be

done. The undersigned counsel has personal knowledge of the facts set

forth in this Motion. Appellant respectfully requests that this Court

extend the deadline for filing Appellant’s reply brief until November 25,

2015.

WHEREFORE, PREMISES CONSIDERED, Appellant Gerald

Kostecka respectfully requests that this Court grant his Second Amended

Motion for Extension of Time to File Appellant’s Reply Brief, and

requests that the Court grant such further and other relief to which

Appellant may be entitled. Respectfully submitted,

LAW OFFICE OF STUART WHITLOW

By: /s/ Stuart Whitlow__________ Stuart Whitlow Texas Bar No.: 21378050 1104 S. Mays, Suite 116 Round Rock, Texas 78664 Tel. (737) 346-1839 Fax (512) 218-9235 Email stuartrtwhitlowlaw@yahoo.com Attorney for Appellant

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing legal instrument was served upon Robert House, Clark & Trevino, 1701 Directors Boulevard, Suite 920, Austin, Texas 78744, in accordance with the Texas Rules of Civil Procedure on the 18th day of November, 2015. _/s/Stuart Whitlow_________________ Stuart Whitlow

CERTIFICATE OF CONFERENCE

This is to certify that Stuart Whitlow, counsel for Appellant Gerald Kostecka, attempted to contact counsel for Appellee regarding this Motion but has not been able to reach him yet.

_/s/Stuart Whitlow________ Stuart Whitlow