the United Healthcare Choice Plus Plan for City of Austin Employees and the City of Austin v. Charles Lesniak

Opinion

ACCEPTED

03-15-00309-CV

8397586

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/29/2015 3:50:07 PM

JEFFREY D. KYLE

CLERK

No. 03-15-00309-CV

________________________________________________________________

FILED IN

3rd COURT OF APPEALS

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS IN AUSTIN, TEXAS 12/29/2015 3:50:07 PM ____________________ JEFFREY D. KYLE Clerk

City of Austin and The United Healthcare Choice Plus Plan for City of Austin Employees

Appellants,

v.

Charles Lesniak

Appellee

____________________

On Appeal From the 419th District Court, Travis County, Texas

____________________

APPELLEE’S MOTION FOR EXTENSION OF TIME

____________________

Pursuant to Texas Rules of Appellate Procedure 10.5(b) and 49.8, Appellee Charles Lesniak (“Appellee”) respectfully files this motion for extension of time to file his motion for rehearing.

PROCEDURAL BACKGROUND

1. Appellants’ Brief was filed with the Third Court of Appeal on June 24, 2015. 2. Appellee’s Brief was filed with the Third Court of Appeal on July 15, 2015.

3. The Court issued its Memorandum Opinion on December 1, 2015. Judgment was rendered dismissing Appellee’s claims for lack of jurisdiction.

4. Pursuant to Tex. R. App. Proc. 49.1, Appellee’s motion for rehearing was originally due by no later than December 16, 2015. Appellee now seeks an extension of time to file his motion for rehearing pursuant to Tex. R. App.

Proc. 49.8.

BASIS FOR EXTENSION

5. Appellee requests a forty five (45) day extension to file his motion for rehearing in this case. If the extension is granted, his request would be due by no later than February 1, 2016. Appellee requires the additional time to prepare his motion in light of recent action by the Texas Supreme Court.

6. On December 18, 2015, the Texas Supreme Court set several cases for oral argument that involve the common law and statutory governmental immunity issues in this case. Those matters are:

a. Case No. 14-0645; Wasson Interests, Ltd. v. City of Jacksonville, Texas b. Case No. 15-0029; Wheelabrator Air Pollution Control, Inc. v. City of San Antonio

7. Both of these cases involve pleas to the jurisdiction by governmental entities.

A critical issue in Wasson is whether to apply the common law distinction

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between governmental-proprietary functions in contract cases. The principal issue in Wheelabrator is the availability of attorneys’ fees in a suit involving Tex. Local Govt. Code §271. Both of these issues are central to this matter.

8. Oral argument in both of these cases is set for Thursday, January 14, 2016.

Appellee believes that these oral arguments will help guide the parties in this case on how the Texas Supreme Court may ultimately dispose of this matter.

9. This is the first request for an extension to file Appellee’s Motion for Rehearing.

10. This motion is not sought for delay, but so that justice may be done.

Prayer

For these reasons, Appellee Charles Lesniak requests that this Court grant a 45 day extension, making Appellee’s Motion for Rehearing due on Monday, February 1, 2016.

Respectfully submitted,

By ___/s/ Amar Raval________________ James C. Plummer, TBA #16075700 Amar Raval, TBA # 24046682 PLUMMER | RAVAL

4203 Montrose Boulevard, Ste 270 Houston, Texas 77006

(713) 522-2887

(713) 522-3605 (Fax)

Jplummer@plummerlawyers.com

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Araval@plummerlawyers.com ATTORNEYS FOR APPELLEE

CERTIFICATE OF CONFERENCE

I hereby certify that I conferred with counsel for the City of Austin and counsel for United Healthcare on December 29, 2015 regarding this motion. As of the filing of this motion, I have not heard back from either counsel. It is thus unknown whether Appellants are opposed or unopposed to this motion.

_______/s/ Amar Raval___________ CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Appellee’s Motion for Extension of Time was served pursuant to Tex. R. App. Proc. 9.5 on December 29, 2015, to:

Andralee Cain Lloyd Megan Mosby City of Austin Law Department P.O. Box 1546 Austin, TX 78767

Andrew Jubinski Lance Clack Figari & Davenport, LLP 901 Main St., Suite 3400 Dallas, TX 75202

_______/s/ Amar Raval___________

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