Steven Webb, D/B/A Leander Trux-N-Karz v. Glenco Upshaw

Court of Appeals of Texas

Steven Webb, D/B/A Leander Trux-N-Karz v. Glenco Upshaw

Court of Appeals of Texas·Decided October 16, 2015·No. 03-15-00590-CV·Published

Opinion

ACCEPTED 03-15-00590-CV 7416312 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/16/2015 3:16:04 PM JEFFREY D. KYLE CLERK _______________________________________________________________________

No. 03-‐15-‐00590-‐CV

FILED IN _______________________________________________________________________ 3rd COURT OF APPEALS

AUSTIN, TEXAS IN THE COURT OF APPEALS 10/16/2015 3:16:04 PM THIRD JUDICIAL DISTRICT OF TEXAS JEFFREY D. KYLE AT AUSTIN, TEXAS Clerk ______________________________________________________________________

STEVEN WEBB D/B/A LEANDER TRUX-‐N-‐KARZ

Appellant,

VS.

GLENCO UPSHAW

Appellee.

_____________________________________________________________________

On Appeal from the 368th District Court

of Williamson County, Texas

Hon. Rick Kennon, Judge Presiding

Trial Court Case No. 11-‐613-‐C368

_____________________________________________________________________

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME

_____________________________________________________________________

N. West Short

State Bar No. 00788407

WEST SHORT & ASSOCIATES, P.C.

313 West 10th Street

Georgetown, Texas 78626

512.864.3911

512.864.3966 (Fax)

ATTORNEYS FOR APPELLANT STEVEN WEBB D/B/A LEANDER TRUX-‐N-‐KARZ

Steven Webb, misnamed herein as “Steven Webb d/b/a Leander Trux-‐N-‐

Karz,” Appellant, respectfully asks the Court to extend the time to file his brief, and

in support hereof, would show the following:

A. Introduction

1. Appellant Steven Webb is an individual, and is one of the owners of a

used car dealership in Leander, Texas, called “Leander Trux-‐N-‐Karz, Inc.”

2. The trial court entered a post-‐answer summary judgment against

Appellant by default on September 10, 2015.

3. Appellant filed a pro se Notice of Appeal and a Motion for New Trial on

September 15, 2015.

4. Appellant, through the undersigned counsel, then filed a First

Amended Motion for New Trial on October 5, 2015, contending that because

Appellant was not aware of the hearing on Appellee’s Motion for Summary

Judgment, he should be granted a new trial under the Craddock test and in the

interests of justice.

5. Appellant’s First Amended Motion for New Trial is currently set for

hearing on October 29, 2015, and, if not ruled upon, will be denied by operation of

law on November 24, 2015.

B. Arguments and Authorities

6. Appellant’s brief is currently due on October 28, 2015.

7. No extension has been previously granted to extend the time for

Appellant to file his brief.

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME – PAGE 2 of 4

8. This request is being made because this appeal will become moot if

the trial court grants Appellant’s Motion for New Trial, and because even if

Appellant’s motion is denied by the trial court, the trial court’s actions could

substantially change the issues in this appeal.

9. Appellant therefore requests an additional 30 days after the trial court

has ruled on the Motion for New Trial, or the Motion for New Trial is denied by

operation of law, whichever is earlier, to file his brief.

PRAYER

For the reasons stated above, Appellant respectfully requests an extension of

time to file his brief until thirty (30) days after the trial court has ruled on the

Motion for New Trial that is currently before it, or the Motion for New Trial is

denied by operation of law, whichever is earlier.

Respectfully submitted,

By: /s/ N. West Short

Michael Howell

State Bar No. 24009368

Georgetown, TX 78626

west.short@westshortlawfirm.com

michael.howell@westshortlawfirm.com

ATTORNEYS FOR APPELLANT,

STEVEN WEBB

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME – PAGE 3 of 4

CERTIFICATE OF CONFERENCE

I certify that I contacted Cheryl McGirr, lead counsel for Appellee, on October

16, 2015, to determine whether she was opposed to this motion, but she was out of

the office for the day and I was unable to speak with her.

/s/ N. West Short

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing has been e-‐ served via ProDoc on this 16th day of October, 2015:

Cheryl McGirr

McGirr Law, PC

201 S. Lakeline Blvd., Suite 301

Cedar Park, Texas 78613

COUNSEL FOR APPELLEE

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME – PAGE 4 of 4

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ACCEPTED 03-15-00590-CV 7416312 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/16/2015 3:16:04 PM JEFFREY D. KYLE CLERK _______________________________________________________________________

No. 03-‐15-‐00590-‐CV

FILED IN _______________________________________________________________________ 3rd COURT OF APPEALS

AUSTIN, TEXAS IN THE COURT OF APPEALS 10/16/2015 3:16:04 PM THIRD JUDICIAL DISTRICT OF TEXAS JEFFREY D. KYLE AT AUSTIN, TEXAS Clerk ______________________________________________________________________

STEVEN WEBB D/B/A LEANDER TRUX-‐N-‐KARZ

Appellant,

VS.

GLENCO UPSHAW

Appellee.

_____________________________________________________________________

On Appeal from the 368th District Court

of Williamson County, Texas

Hon. Rick Kennon, Judge Presiding

Trial Court Case No. 11-‐613-‐C368

_____________________________________________________________________

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME

_____________________________________________________________________

N. West Short

State Bar No. 00788407

WEST SHORT & ASSOCIATES, P.C.

313 West 10th Street

Georgetown, Texas 78626

512.864.3911

512.864.3966 (Fax)

ATTORNEYS FOR APPELLANT STEVEN WEBB D/B/A LEANDER TRUX-‐N-‐KARZ

Steven Webb, misnamed herein as “Steven Webb d/b/a Leander Trux-‐N-‐

Karz,” Appellant, respectfully asks the Court to extend the time to file his brief, and

in support hereof, would show the following:

A. Introduction

1. Appellant Steven Webb is an individual, and is one of the owners of a

used car dealership in Leander, Texas, called “Leander Trux-‐N-‐Karz, Inc.”

2. The trial court entered a post-‐answer summary judgment against

Appellant by default on September 10, 2015.

3. Appellant filed a pro se Notice of Appeal and a Motion for New Trial on

September 15, 2015.

4. Appellant, through the undersigned counsel, then filed a First

Amended Motion for New Trial on October 5, 2015, contending that because

Appellant was not aware of the hearing on Appellee’s Motion for Summary

Judgment, he should be granted a new trial under the Craddock test and in the

interests of justice.

5. Appellant’s First Amended Motion for New Trial is currently set for

hearing on October 29, 2015, and, if not ruled upon, will be denied by operation of

law on November 24, 2015.

B. Arguments and Authorities

6. Appellant’s brief is currently due on October 28, 2015.

7. No extension has been previously granted to extend the time for

Appellant to file his brief.

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME – PAGE 2 of 4

8. This request is being made because this appeal will become moot if

the trial court grants Appellant’s Motion for New Trial, and because even if

Appellant’s motion is denied by the trial court, the trial court’s actions could

substantially change the issues in this appeal.

9. Appellant therefore requests an additional 30 days after the trial court

has ruled on the Motion for New Trial, or the Motion for New Trial is denied by

operation of law, whichever is earlier, to file his brief.

PRAYER

For the reasons stated above, Appellant respectfully requests an extension of

time to file his brief until thirty (30) days after the trial court has ruled on the

Motion for New Trial that is currently before it, or the Motion for New Trial is

denied by operation of law, whichever is earlier.

Respectfully submitted,

By: /s/ N. West Short

Michael Howell

State Bar No. 24009368

Georgetown, TX 78626

west.short@westshortlawfirm.com

michael.howell@westshortlawfirm.com

ATTORNEYS FOR APPELLANT,

STEVEN WEBB

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME – PAGE 3 of 4

CERTIFICATE OF CONFERENCE

I certify that I contacted Cheryl McGirr, lead counsel for Appellee, on October

16, 2015, to determine whether she was opposed to this motion, but she was out of

the office for the day and I was unable to speak with her.

/s/ N. West Short

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing has been e-‐ served via ProDoc on this 16th day of October, 2015:

Cheryl McGirr

McGirr Law, PC

201 S. Lakeline Blvd., Suite 301

Cedar Park, Texas 78613

COUNSEL FOR APPELLEE

APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME – PAGE 4 of 4

Steven Webb, D/B/A Leander Trux-N-Karz v. Glenco Upshaw, (Tex. Ct. App. 2015).

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