Brian McEnery v. City of San Antonio and Chief Charles N. Hood ( 2015 )

ACCEPTED
04-15-00097-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/1/2015 12:41:14 PM
KEITH HOTTLE
CLERK
NO. 04-15-00097-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOR THE FOURTH JUDICIAL DISTRICT OF 06/1/2015
TEXAS12:41:14 PM
AT SAN ANTONIO KEITH E. HOTTLE
Clerk
BRIAN McENERY,
Appellant,
v.
CITY OF SAN ANTONIO AND CHIEF CHARLES N. HOOD,
Appellees.
ON APPEAL FROM THE 285th JUDICIAL DISTRICT COURT
BEXAR COUNTY, TEXAS
TRIAL COURT NO. 2011-CI-06603
THE HONORABLE JUDGE CATHLEEN STRYKER PRESIDING
UNOPPOSED MOTION TO EXTEND TIME TO FILE
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF THE COURT:
Under Texas Rules of Appellate Procedure 10.5(b)(1) and 38.6(d), Appellant
Brian McEnery, referred to as Appellant, respectfully moves the Court to extend the
time for filing Appellant’s Brief. As good cause, Appellant respectfully shows the
Court the following:
1. The Bexar County District Clerk filed the Clerk’s Record on April 1, 2015.
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2. The court reporter, Mary Helen Vargas, filed the Reporter’s Record on April
30, 2015.
3. Under Texas Rules of Appellate Procedure 38.6(a) and 4.1(a), Appellant’s
Brief is currently due on June 1, 2015.
4. Appellant requests that the Court extend the time to file Appellant’s Brief
thirty (30) days. A thirty (30) day extension would make the Appellant’s Brief due
on July 1, 2015.
5. In support of the requested extension, Appellant would show that on May 7,
2015, Appellant filed a Motion to Abate Appeal requesting that the Court abate this
appeal and remand the cause to the Trial Court for entry of findings of fact and
conclusions of law, which the Trial Court did not enter although Appellant made a
timely request and filed a timely notice of past due findings in the Trial Court. See
III C.R. at 108, 114.
6. On May 14, 2015, the Court denied the Motion to Abate Appeal brought by
Appellant.
7. Because of the denial of the Motion to Abate Appeal, Appellant requires
additional time to research and to prepare Appellant’s Brief because Appellant must
address each possible legal theory from multiple legal theories that could support the
Judgment of the Trial Court, and Appellant must show how the Trial Court
committed error under each legal theory. See Worford v. Stamper, 801 S.W.2d 108,
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109 (Tex. 1990) (“In this case, no findings of fact or conclusions of law were
requested or filed. It is therefore implied that the trial court made all the findings
necessary to support its judgment. In determining whether some evidence supports
the judgment and the implied findings of fact, ‘it is proper to consider only that
evidence most favorable to the issue and to disregard entirely that which is opposed
to it or contradictory in its nature.’ The judgment must be affirmed if it can be upheld
on any legal theory that finds support in the evidence.”); cf. Paredes v. Garza, No.
13-14-00058-CV, at *10 (Tex. App.—Corpus Christi November 17, 2014, order of
abatement) (per curiam) (“After reviewing the record and briefs, we agree with
[Appellant] that, in light of [Tex. R. Civ. P.] 296 and 297, the trial court’s failure to
make the requested findings of fact and conclusions of law was error and harmful,
since the record does not affirmatively show no injury to [Appellant]. There are two
or more possible grounds on which the court could have ruled. [Appellant] has been
left to guess the basis for the trial court’s ruling.”), disp. on merits, No. 13-14-00058-
CV (Tex. App.—Corpus Christi January 22, 2015, no pet.) (mem. op.) (per curiam).
8. As additional support for the requested extension, Appellant would show that
counsel for Appellant, Ronald B. Prince and Floyd Steven Contreras, had a number
of commitments during the initial briefing period that required their time and
attention and interfered with preparation of Appellant’s Brief by the current
deadline. These commitments included:
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Preparation for oral argument and oral argument in No. 04-14-00740-CV, Art
Reyna v. Irene Baldridge and Kathy Hill, which took place on May 13, 2015;
Extensive research, additional pleading, and preparation for hearing in
connection with a motion for summary judgment in Cause No. 2013-CI-06861,
Nadia Mullins v. Armando De La Pena, pending in the 407th Judicial District Court
in Bexar County, Texas, with the hearing on the motion for summary judgment
taking place on May 28, 2015;
Research, preparation, and negotiation in connection with a show cause order
concerning a motion for contempt and petition for civil penalties for violation of
permanent injunction in Cause No. 11-1225-CV, State of Texas v. Stephen Luman
d/b/a Alamo Medical, pending in the 25th Judicial District Court in Guadalupe
County, Texas, with the hearing originally set to be heard on May 29, 2015; and
Preparation for and attendance at numerous hearings on motions set in
Presiding Civil District Court in Bexar County, Texas, in various cases.
9. This is Appellant’s first request for an extension of time to file Appellant’s
Brief. Appellant seeks this extension not solely for delay, but so that justice may be
done.
10. As reflected in the Certificate of Conference below, counsel for Appellees
indicated that she is unopposed to this motion. The undersigned counsel attempted
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to confer with counsel for Intervenor but did not receive a response as of the time of
filing this motion.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant Brian McEnery
respectfully requests that the Court grant a thirty (30) day extension of time to file
Appellant’s Brief, extending the time to file Appellant’s Brief until July 1, 2015.
Appellant further prays for such other relief to which he may be entitled.
Respectfully submitted,
PRINCE CONTRERAS PLLC
417 San Pedro Avenue
San Antonio, Texas 78212
Tel: (210) 227-7821
Fax: (210) 225-4469
info@princecontreras.com
ATTORNEYS FOR BRIAN McENERY
_/s/ Floyd Steven Contreras_____________
RONALD B. PRINCE
State Bar No. 16329300
ron@princecontreras.com
FLOYD STEVEN CONTRERAS
State Bar No. 24075339
floyd@princecontreras.com
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CERTIFICATE OF CONFERENCE
I certify that I conferred with Jacqueline M. Stroh, counsel for Appellees, via
email on May 29, 2015, regarding Appellant’s Motion to Extend Time to File
Appellant’s Brief. Ms. Stroh indicated that she is not opposed to our request for an
initial extension.
_/s/ Floyd Steven Contreras_____________
RONALD B. PRINCE
FLOYD STEVEN CONTRERAS
I certify that I attempted to confer with Ricky J. Poole, counsel for Intervenor,
via telephone on May 27, 2015, on May 28, 2015, and on May 29, 2015. I left
messages for Mr. Poole asking for him to return my telephone calls. As of the time
of filing this motion, I did not receive a return telephone call from Mr. Poole.
_/s/ Ronald B. Prince__________________
RONALD B. PRINCE
FLOYD STEVEN CONTRERAS
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CERTIFICATE OF SERVICE
I certify that on the 1st day of June, 2015, a true and correct copy of the
foregoing Appellant’s Motion to Extend Time to File Appellant’s Brief was served
on the following counsel of record electronically through the electronic filing
manager:
Ms. Jacqueline M. Stroh
THE LAW OFFICE OF JACQUELINE M. STROH, P.C.
10101 Reunion Place, Suite 600
San Antonio, Texas 78216
Tel: (210) 477-7416
Fax: (210) 477-7466
jackie@strohappellate.com Attorney for Appellees
Ms. Deborah Lynne Klein
OFFICE OF THE CITY ATTORNEY, LITIGATION DIVISION
111 Soledad, 10th Floor
San Antonio, Texas 78205
Tel: (210) 207-8919
Fax: (210) 207-4357
deborah.klein@sanantonio.gov Attorney for Appellees
Mr. Mark Kosanovich
FITPATRICK & KOSANOVICH, P.C.
P.O. Box 831121
San Antonio, Texas 78283-1121
Tel: (210) 207-7259
Fax: (210) 207-8997
mark.kosanovich@sanantonio.gov Attorney for Appellees
Mr. Ricky J. Poole
LAW OFFICES OF RICKY J. POOLE
The Forum Building
8000 IH-10 West, Suite 600
San Antonio, Texas 78230
Tel: (210) 525-7988
Fax: (210) 525-7987
rpoole@alamocityattorney.com Attorney for Intervenor
_/s/ Floyd Steven Contreras_____________
RONALD B. PRINCE
FLOYD STEVEN CONTRERAS
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