Peveto Companies, Ltd. D/B/A Brake Check v. FASA Friction Laboratories, Inc.

Opinion

ACCEPTED 04-15-00570-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/11/2015 6:56:33 PM KEITH HOTTLE CLERK 04-15-00570-CV NO. _______________

FILED IN IN THE 4th COURT OF APPEALS SAN ANTONIO, TEXAS COURT OF APPEALS FOR THE 09/11/15 6:56:33 PM FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE SAN ANTONIO, TEXAS Clerk ______________

PEVETO COMPANIES, LTD. APPELLANT

VERSUS

FASA FRICTION LABORATORIES, INC. APPELLEE ______________

APPEAL FROM THE DISTRICT COURT, 45TH JUDICIAL DISTRICT, BEXAR COUNTY, TEXAS TRIED BY THE 288TH JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS NO. 2011-CI-20405

Motion for Extension of Time to File Notice of Appeal

NOW COMES Appellant Peveto Companies, Ltd. and files this Motion for

Extension of Time to File Notice of Appeal, and in support thereof would

respectfully show the Court as follows:

1. Appellant filed its Notice of Appeal with the above-referenced trial court on

September 11, 2015. Simultaneously, Appellant is filing this Motion for Extension

of Time pursuant to Texas Rule of Appellate Procedure 26.3 and in accordance

with Texas Rule of Appellate Procedure 10.5(b).

{00040967 2} 2. On June 10, 2015, Judge Sol Casseb of the 288th Judicial District Court,

signed the Judgment in the above-referenced case. On July 2, 2015, within thirty

days of the date of the Judgment, Appellant filed a Motion for New Trial.

On August 17, 2015, the trial court signed an order denying the Motion for New

Trial.

3. Appellant hired Mr. Barry McClenahan as additional trial counsel after this

case was tried to a jury. Mr. McClenahan, as well as Mr. Reed, one of Appellant’s

appellate counsel, have been preparing for trial in a different case, which was

scheduled to resume on August 31, 2015. On August 28, 2015, one of the

Defendants in that case filed for bankruptcy, which resulted in urgent lift stay

proceedings in the bankruptcy court, and resulted in the trial commencing on

September 7, 2015. Jury selection in that case is still underway. Owing to these

trial conflicts, Appellant’s trial counsel and the undersigned counsel were unable to

meet with Appellant regarding the representation of Appellant in connection with

this appeal until after ninety days from the date of the Judgment. This motion is

supported by the affidavit of Barry McClenahan, which is attached hereto.

4. Appellant filed its Notice of Appeal and is filing this Motion within

fifteen days from the expiration of ninety days from the date of the Judgment, and

within twenty-five days of the date the trial judge denied Appellant’s Motion for

New Trial.

{00040967 2} – 2 – 5. This is Appellant’s first request for an extension and the extension is not

sought for delay, but so that justice may be had.

WHEREFORE Appellant prays that this Motion be granted such that Appellant’s

Notice of Appeal be considered timely filed on September 11, 2015, and that this

Court award Appellant such other and further relief, both general and special, at

law or in equity, to which Appellant may be entitled.

Respectfully submitted,

PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LP 2161 NW Military Highway, Suite 400 San Antonio, Texas 78213 www.pulmanlaw.com (210) 222-9494 Telephone (210) 892-1610 Facsimile

By: /s/ Leslie Sara Hyman Leslie Sara Hyman Texas State Bar No. 00798274 lhyman@pulmanlaw.com Ryan C. Reed Texas State Bar No. 24065957 rreed@pulmanlaw.com

THE MCCLENAHAN LAW FIRM, PLLC Barry A. McClenahan Texas State Bar No. 13404400 1901 NW Military Hwy, Suite 218 San Antonio, Texas 78213 Telephone: (210) 525-9600 Facsimile: (210) 525-9602

ATTORNEYS FOR APPELLANT PEVETO COMPANIES, LTD.

{00040967 2} – 3 – CERTIFICATE OF SERVICE

I certify that on the 11th day of September 2015, the foregoing Motion for

Extension of Time to File Notice of Appeal has been transmitted in accordance

with the requirements of the Texas Rules of Appellate Procedure addressed as

follows:

Via E-Filing and E-mail to Via E-Filing and E-mail to olopez@lopezscott.com: jennifer@esproncedalaw.com: Mr. Orlando Lopez Ms. Jennifer L. Espronceda Lopez Scott, L.L.C. Espronceda Law, P.L.L.C. 3707 N. St. Mary’s Street, Suite 7800 I.H. 10 West, Suite 800 200 San Antonio, Texas 78501 San Antonio, Texas 78212

Via E-Filing and E-mail to marc@wojolaw.com: Mr. Marc J. Wojciechowski Wojciechowski & Associates, P.C. 17447 Kuykendahl Road, Suite 200 Spring, Texas 77379

/s/ Leslie Sara Hyman Leslie Sara Hyman

{00040967 2} – 4 –