Isabel Cortes and Johnny Fernandes v. Sharon Wendl as Attorney in Fact and A/N/F for Ada Edna Hardy

• Court: Court of Appeals of Texas
• Decided: March 2, 2018
• Docket: 06-17-00121-CV
• Status: Published

Opinion

ACCEPTED 06-17-00121-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/2/2018 2:14 AM DEBBIE AUTREY CLERK

CAUSE NO. 06-17-00121-CV FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/2/2018 7:48:00 AM IN THE COURT OF APPEALS DEBBIE AUTREY FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS Clerk TEXARKANA, TEXAS

Isabel A. Cortes and Johnny Fernandes, Appellants

V.

Sharon Wendl as Attorney in Fact and a/n/f/ for Ada Edna Hardy, Appellee

0n Appeal From the Fourth Judicial District Court RUSK COUNTY, TEXAS

APPELLANTS’ FIRST MOTION TO EXTEND TIlVIE TO F]1.E APPELLANT’S BRIEF

Respectfully submitted,

THE WINFUL LAW FIRM, PLL. C. Robert Winful H, Esq. State Bar Number: 24079593 Email: robert@thewinfulfirm.com 8035 ERL. THORNTON FREEWAY, SUITE 530 DALLAS, TX, 75228 Telephone: (214)501-5449 Facsimile: (214)501-0578 Attorney for Appellants IDENTITY OF PARTIES AND COUNSEL

Emir; Appellate Counsel

Appellants Robert Winful H, Esq. Isabel A. Cortes The Winful Law Firm, P.L.L.C, Johnny Fernandes 8035 ERL. Thornton Fwy, Ste. 530 Dallas, Texas 75228 Telephone: (214) 501-5449 Telecopier: (214) 501-0578 rg bertfcgthewinfulfirmeom

Appellee David H‘ Hill Sharon Wendl as Attorney in Fact 605 South Main, Suite 202 And a/n/f For Ada Edna Hardy Henderson, Texas 75654 Telephone: (903) 657—4100 Telecopier: (903) 657-5400 dh@davidhillfirm. corn TO THE HONORABLE SIXTH COURT OF APPEALS:

Pursuant to TEX. R APP. P. 10.1 and 38.6(d), the Appellants, Isabel A,

Cortes and Johnny Fernandes (“Appellants”), file this First Motion to Extend Time

to File Appellant’s Brief

Appellants’ opening brief is currently due on February 28, 2018.

Counsel for Appellants requests a 30-day extension of time to file its brief,

making the brief due on March 30, 2018. This is the first request for extension of

time to file the opening brief.

Counsel for Appellants relies on the following reasons, in addition to the

routine matters that counsel must attend to in daily practice, to explain the need for

the requeSted extension:

> Counsel for Appellants, on the evening of February 28, 2018, was

confronted with abrupt power outage around 9:] 7pm at his Dallas home, which

power outage resulted in the loss of work completed previously in his preparation

of Appellants” brief. Specifically, counsel for Appellants had previously saved his

work completed on Appellants’ brief, on his laptop computer, with intentions on

completing the citations, attachment of exhibits and indices, etc, and in conformity

with the pertinent Appellate rules, at a later time.

However, on the evening of February 28, 2018, Counsel for Appellants was

met with severe thunderstorms and bad weather in his area, consequently leading to the loss of power and intemet at his Dallas home around 9:] 7pm, As a result of

this abrupt power outage, Counsel for Appellants resorted to the use of his wife’s

laptop computer, as Counsel for Appellants’ laptop, being a much older laptop

from law school, required a constant supply of power to stay onwwhereas

counsel’s wife’s laptop did not require same.

Counsel for Appellants continued to work in the dark with flashlights and

candles on Counsel’s wife’s laptop (which was aMac computer counsel was not

familiar with). Although counsel’s Appellants’ brief was very near completion,

with the only outstanding items as of 9:17pm being the attachment of the exhibits

and the editing of citations, counsel realized after inserting the thumb drive

containing the saved Appellants’ brief into his wife’s laptop, that all the work

completed towards the very-near completion of Appellants’ brief, had been lost.

Counsel for Appellants, sensing the worst, began re-drafting all of the

contents of Appellants’ brief from memory, with barely a couple of hours

remaining to the filing deadline of 11 :59 pm on February 28, 2018. Counsel,

however, was unable to re-draft the entire remainder of Appellants’ brief which

had been previously saved on his laptop and was also unable to recover all of the

work previously completed on Appellants” brief either. However, Counsel for

Appellants thought it wiser to try to meet the filing deadline by proceeding to still

file the incomplete Appellants’ brief which had resulted from the abrupt power outage (due to the severe storms occurring in Dallas, Texas on the evening of

February 28, 2018).

Further, Counsel for Appellants, in reasonable reliance on the “hotspot

internet” connection from his cell phone, albeit slower than usual, was eventually

able to upload the incomplete Appellants’ brief onto the Texas e-file system after

almost 25 minutes of several interrupted attempts to do so. Despite that counsel

initiated these attempts at uploading and filing the incomplete Appellants” brief

around 11:30 pm on February 28, 2018, the Appellants’ brief, due to unreasonably

and unusually slow internet connection from counsel’s phone, did not actually

upload and successfully file until around 12:05 am.

To make matters worse, Counsel’s wife and three-year-old son started

exhibiting symptoms of theflzr, at the time when the power outage was still in

effect at about 2 am. Counsel’s wife would not stop coughing, and she felt very

warm to touch. Around the same time, counsel’s son was heard screaming and

crying in his bedroom (which he shares with his seven-year-old brother). Needless

to say, counsel did his best to attend to both his wife and son at the same time, by

giving son doses of Pedialyte and driving out to the Walmart for some cough

medicine for his wife. Shortly after power returned to counsel’s home around 3:30

am, counsel’s wife’s symptoms had begun to worsen, while counsel’s son’s

symptoms had begun to subside, seemingly. There was, thus, the need for Appellants’ counsel to spend the day taking

over the care of the family from his wife (who, as a slay-at-home mom, usually

handles such care). After driving the seven-year—old to school that morning, there

was a need for Appellants’ counsel to take the day off from the office to assist in

the care, supervision and quarantine of both our three-year—old and eighteen-

monthnold from their mother, whom I suspected had the flu, especially because of

the several outbreak and severe symptoms of the flu in the Dallas area in recent

weeks.

As a result of these abrupt, unusual and severe circumstances occurring

which were beyond Appellants’ counsel’s control, Appellants’ counsel was unable

to meet this honorable Court’s deadline for the filing of Appellants’ brief. Without

an extension from this honorable Court, Appellants’ counsel will be unable to try

additional attempts at recovering the previously-saved Appellants’ brief which was

very near completion (but for the attachment of exhibits and revision of citations),

in order to meet this Court’s briefing deadline.

Counsel for Appellants, therefore, humbly seeks this extension of time to be

able to finalize the preparation of a cogent and succinct brief to aid this Court in its

analysis of the issues presented. This is counsel’s very first and only request for

such extension, and counsel humbly asserts that request is not sought for delay but

so that justice may be done. The undersigned has attempted to confer with Mr David Hill, counsel for

the Plaintiff/Appellee, but no reply regarding any opposition has been received

from him regarding the filing of this motion.

All facts recited in this motion are within the personal knowledge of the

counsel signing this motion, therefore no verification is necessary under Texas

Rule of Appellate Procedure 10.2.

PRAYER FOR RELIEF

For the reasons set forth above, Appellants request that this honorable Court

grant this First Motion to Extend Time to File Appellant’s Brief and extend the

deadline for filing the Appellant’s Brief up to and including March 30, 2018.

Appellants request all other relief to which they may be entitled.

The Winful Law Firm, P.L.L.C.

s R K. inful Robert Winful lI, Esq. State Bar No. 24079593 8035 ERL Thornton Freeway, Suite 530 Dallas, Texas 75228 Telephone: (214) 501-5449 Telecopier: (214) 501-0578 AttorneyforAppelIants, Isabel A. Cortes & Johnny Femana’es Ur CERTIFICATE OF CONFERENCE

Pursuant to TEX. R. APP. P. 10.1(5), I certify that the undersigned attempted to confer with opposing counsel via telephone, but no reply suggesting any opposition was received regarding the filing of this motion.

/s/ R e K. inf 1 Robert Winful II, Esq.

CERTIFICATE OF SERVICE

Pursuant to TEX. R APP. P. 9.5, I certify that on March 2, 2018, a copy of this motion was served via Texas e—frle service, to the following:

David H. Hill 605 South Main, Suite 202 Henderson, Texas 75654 Telephone: (903) 657—4100

R rtK inf 1 Robert Winful H, Esq.