Roger Fay v. Texas A&M University, Geochemical and Environmental Research Group The College of Geosciences and Maritime Studies Dr. Ray Bowen Dr. Robert Duce Dr. Norman Guinasso Dr. Roger Sassen And Dr. David Schink

Opinion

ACCEPTED

03-15-00521-CV

8414046

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/30/2015 3:54:21 PM

JEFFREY D. KYLE

CLERK

03-15-00521-CV

In The Texas Court of Appeals FILED IN 3rd COURT OF APPEALS

Third District at Austin AUSTIN, TEXAS 12/30/2015 3:54:21 PM

JEFFREY D. KYLE

Clerk

ROGER FAY, Appellant

v.

TEXAS A&M UNIVERISTY; GEOCHIMICAL AND ENVIRONMENTAL RESEARCH GROUP; THE COLLEGE OF GEOSCIENCES AND MARITIME STUDIES; DR. RAY BOWEN; DR. ROBERT DUCE; DR. NORMAN GUINASSO; DR. ROGER SASSEN; AND DR. DAVID SCHINK, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 97-08888, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

_________________________________________________________

APPELLANT’S FIRST AMENDED MOTION TO REINSTATE APPEAL

________________________________________________________

C. Bryan Cantrell State Bar No. 00793459 Cantrell, Ray & Barcus, LLP P.O. Box 1019 Huntsville, Texas 77342 Tel: 936-730-8541 Fax: 936-730-8535

Counsel for Appellant

TO THE HONORABLE APPEALS COURT OF TEXAS:

1. Appellant, Movant, Roger Fay, requests this Court to reverse its

decision to dismiss his Appeal. Appellant never received notice of the briefing

schedule or any other correspondence from the Court until after the Court had

dismissed Fay’s appeal for want of prosecution.

2. Movant’s counsel, Bryan Cantrell, never received notice of a briefing

schedule or any other communication from the Court due to a problem with

Counsel’s electronic mail system. Cantrell retired an older computer in the Fall of

2015 and replaced the computer with a new system. Unbeknownst to counsel, the

computers were both set up with Microsoft Outlook. Because of the security system

for Cantrell’s firm, the IP address assignment for the two computers would capture

incoming emails. If the older computer was on, at the office and on the same

wireless service, it would capture emails directed to Cantrell without posting the

same emails to the new computer. Essentially, because Outlook periodically

updated current emails, the two computers would capture emails upon the “receive”

function. However, the emails captured by the separate computers were not shared

with the other computer.

3. Cantrell’s office only recently discovered the origin of the problem and

have since corrected the matter. However, because the retired computer was having

difficulties operating, we could not retrieve any of the correspondence on that

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computer. Cantrell’s office has also established new procedures in an attempt to

correct any future problems, including copies of correspondence automatically

directed to paralegal support staff.

4. The errors in Cantrell’s office were not a result of negligence or

conscience indifference. The errors were solely the product of an electronic issue

that Cantrell could not have anticipated.

CONCLUSION AND PRAYER

For the reasons asserted above, Appellant respectfully asks this Court to

reinstate this appeal.

Respectfully submitted,

CANTRELL, RAY & BARCUS, LLP

By: /s/ C. Bryan Cantrell .

C. Bryan Cantrell Texas Bar No. 00793459 P.O. Box 1019 Huntsville, Texas 77342 (936) 730-8541 Telephone (936) 730-8535 Fax bryan@crblawyers.com

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CERTIFICATE OF CONFERENCE

Counsel for Appellant contacted counsel for Appellees, Laura Barber, who stated Appellees are opposed to this Motion.

By: /s/ C. Bryan Cantrell .

C. Bryan Cantrell

CERTIFICATE OF SERVICE

This is to certify that the above and foregoing document has been delivered according to the Tex. R. App. P. to all counsel of record on this 30th day of December, 2015.

William T. Deane Laura Barber General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 By E-file and/or fax By: /s/ C. Bryan Cantrell .

C. Bryan Cantrell