Yvonne Cardwell v. Whataburger Restaurants Llc

• Court: Court of Appeals of Texas
• Decided: January 22, 2015
• Docket: 14-1019
• Status: Published

Opinion

FILED 14-1019 1/22/2015 9:54:41 AM tex-3873304 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. 14-1019

__________________________________________________

IN THE SUPREME COURT OF TEXAS

YVONNE CARDWELL,

Petitioner,

v.

WHATABURGER RESTAURANTS LLC,

Respondent.

Appealed from the County Court at Law Number Seven, El Paso County, Texas (Trial Court No. 2009-2920) Appealed to the Court of Appeals Eighth Judicial District of Texas at El Paso (Appellate Court No. 08-13-00280-CV)

PETITIONER’S SECOND MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW

TO THE HONORABLE SUPREME COURT OF TEXAS:

Petitioner Yvonne Cardwell files this Second Motion to Extend Time to File

Petition for Review under TRAP 10.1, 10.5(b), and 53.7(f).

1. This is an interlocutory appeal of the trial court’s order denying

1 Appellant/Respondent’s Motion to Compel Arbitration and Motion to Dismiss on

August 28, 2013, in the matter below styled Yvonne Cardwell v. Whataburger

Restaurants, LLC; Trial Court No. 2013- DCV -0910; in the County Court at Law

Number Seven, the Honorable Thomas A. Spieczny, judge presiding.

2. On August 13, 2014, in Whataburger Restaurants, LLC v. Yvonne

Cardwell, No. 08-13-00280-CV, the Honorable Eighth Court of Appeals reversed the

trial court’s order denying Appellant’s motion to compel arbitration and motion to

dismiss and remanded the case with instructions to grant the motion and enter an

order compelling arbitration and dismissing the case, in accordance with the Court’s

opinion.

3. Following a motion for rehearing, on October 24, 2014, the Honorable

Eighth Court of Appeals withdrew its judgment dated August 13, 2014 and entered

a new judgment in its place that reversed the trial court’s order denying Appellant’s

motion to compel arbitration and motion to dismiss and remanded the case to the trial

court with instructions to grant the motion and enter an order compelling arbitration

and staying the proceedings, in accordance with the Court’s opinion.

4. Petitioner submitted this motion for extension of time to file her petition

for review on January 22, 2015, as permitted by TRAP 10.1, 10.5(b) and 53.7(f).

5. If no extension of time is granted by this Court, the petition for review

2 was due to be filed by Wednesday, January 7, 2015.

6. Petitioner requests an additional sixteen (16) days to file her petition for

review, that is, an extension of time until Friday, January 23, 2015. The identical

petition that was incorrectly attached to petitioner’s motion submitted January 22,

2015, is submitted in a separate document contemporaneously with this motion.

7. This is petitioner’s second request to extend time to file her petition.

8. Petitioner needs additional time to file the petition because the

undersigned counsel who prepared the petition was required to devote time and

attention to a number of trial and appellate matters during the time in which the

petition was due and has resulted in an unanticipated heavy work load so that counsel

for petitioner was unable to fully prepare the petition during the time in which it was

due to be filed. In addition, shortly after the new year, the undersigned’s elderly

mother, who is eighty-three (83) years old and living in Fulshear, Texas outside

Houston, suffered an event that has necessitated her impending move to an assisted

care facility, which required the undersigned to devote substantial time to unforeseen

personal matters during the time in which the petition was due to be filed.

9. An extension of time for filing the petition will not delay submission of

this case in its prescribed order and no harm will result to respondent as a result of

this extension of time, in that this case has not been set for submission on the petition.

3 10. Certificate of conference. Due to the late hour of the filing of the

motion on January 22, 2015, petitioner’s counsel was unable to contact respondent’s

counsel regarding the motion prior to its filing.

WHEREFORE, PREMISES CONSIDERED, petitioner Yvonne Cardwell

requests that the Court grant the motion and enter an order extending the time for

filing her petition for review for sixteen (16) days or until Friday, January 23, 2015,

and accept the petition submitted in a separate document contemporaneously with this

motion as filed, and other relief to which petitioner may show herself justly entitled.

Respectfully submitted,

SCHERR & LEGATE, PLLC. Attorneys for Plaintiff 109 North Oregon, 12th Floor El Paso, Texas 79901 (915) 544-0100 (915) 532-1759 (Facsimile)

/s/ Jeffrey B. Pownell JAMES D. TAWNEY State Bar No. 24060970 JEFFREY B. POWNELL State Bar No. 16222900. Attorneys for Petitioner Yvonne Cardwell

4 CERTIFICATE OF CONFERENCE

Due to the late hour of the filing of the motion on January 22, 2015, the undersigned was unable to contact respondent’s counsel concerning the foregoing motion prior to its filing.

/s/ Jeffrey B. Pownell Jeffrey B. Pownell

CERTIFICATE OF SERVICE

I hereby certify that on this 23nd day of January, 2015, a true and correct copy of the foregoing was e-mailed and/or mailed by first class mail, postage prepaid, to the following counsel of record:

W. Alan Wright Craig A. McDougal S. Wesley Butler Crouch & Ramey, L.L.P. 2001 Ross Ave., Suite 4400 Dallas, Texas 75201 Telephone: (214) 922-7100 Facsmile: (214) 922-7101 awright@crouchfirm.com cmcdougal@crouchfirm.com wbutler@crouchfirm.com Attorneys for Respondent Whataburger Restaurants LLC