Azleway Charter School and Azleway, Inc. v. Lacy Hogue ( 2015 )

ACCEPTED
12-15-00257-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/22/2015 3:34:32 PM
Pam Estes
CLERK
NO. 12-15-00257-CV
IN THE TWELFTH COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
______________________________________
12/22/2015 3:34:32 PM
PAM ESTES
AZLEWAY CHARTER SCHOOL Clerk
AND AZLEWAY, INC.,
APPELLANTS,
V.
LACY HOGUE
APPELLEE
_______________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW #3
SMITH COUNTY, TEXAS
CAUSE NO 64,330-B
HON. FLOYD GETZ, PRESIDING
_______________________________
MOTION FOR RECONSIDERATION
_________________________________________
WILLIAM S. HOMMEL, JR.
TEXAS BAR NO. 09934250
HOMMEL LAW FIRM
1404 RICE ROAD, SUITE 200
TYLER, TEXAS 75703
903-596-7100
469-533-1618 (FACSIMILE)
ATTORNEY FOR APPELLANTS
TO THE HONORABLE COURT OF APPEALS:
Azleway Charter School and Azleway, Inc., Appellants, make this Motion for
Reconsideration and would show:
1. Appellants’ brief was due to be filed on November 30, 2015. Appellant
counsel received a notice from the Court regarding the fact that the brief was not
timely filed; however, the email notice from the Court went to counsel’s junk email
folder.1
2. Counsel for Appellants did not willfully ignore the Court’s directive in
failing to heed the warning of the Court regarding the lateness of Appellants’ brief.
The failure to file the brief timely was not the result of conscious indifference, but
was due to inadvertence on the part of counsel. The late briefing notice is the only
notice from the Court which went to counsel’s junk email folder. The first time this
matter came to counsel’s attention, was the Court’s dismissal of the appeal. This
Motion for Reconsideration is filed as soon as possible following the dismissal of
the appeal.
3. This court has a great deal of discretion in deciding the question of
whether or not to dismiss an appeal for late filing of briefs. Lueck v. Carter, 466
S.W.2d 90, 91 (Tex. Civ. App. 1971). Since the case was not set for submission, the
1 See: Ex A – Screenshot of counsel’s junk email folder.
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Appellee will not be materially injured by permitting the Appellant to file a late brief.
Texaco, Inc. v. Joffrion, 363 S.W.2d 827 (Tex.Civ.App. Texarkana 1962, writ ref'd
n.r.e.); Montgomery Ward & Co. v. Dalton, 602 S.W.2d 130, 131 (Tex. Civ. App.
1980). Counsel for Appellants has prepared the brief and submitted it to the Court
for filing if the Court sees fit to reinstate the appeal.
4. This motion is not made for the purpose of delay, but to that justice
might be served.
WHEREFORE, Appellants respectfully request the Court reconsider its
dismissal of the appeal for want of prosecution and upon final consideration reinstate
the appeal.
Respectfully Submitted,
______________________________
William S. Hommel, Jr.
Hommel Law Firm
1404 Rice Road, Suite 200
Tyler, TX 75703
903-596-7100
469-533-1618 (Facsimile)
Attorney for Appellants
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CERTIFICATE OF CONFERENCE
I certify that before filing this motion I attempted to confer by both telephone
and email on December 17, 2015, with counsel for appellee, Walter Taylor, and was
unable to confer.
____________________________________
William S. Hommel, Jr.
CERTIFICATE OF SERVICE
I certify that on December 22, 2015, a true copy of the foregoing Motion for
Reconsideration was served on all counsel of record via facsimile and email.
____________________________________
William S. Hommel, Jr.
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EXHIBIT A