David Gillespie and Michael O'Brien v. A.L. Hernden and Frederick R. Zlotucha

FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
11/19/2015 3:54:26 PM
KEITH E. HOTTLE
Clerk
1
2
3
4
5
6
7
8
FILED
6/20/2014 2:43:57 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Bonnie Banks
186
187
188
189
190
191
192
193
194
195
196
197
563
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
607
608
609
610
611
612
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
634
635
636
637
638
639
640
641
642
1022
1023
1024
1025
FILED
5/1/2015 12:53:55 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Jode Sanchez
CAUSE NO. 2013-CI-10278
DAVID GILLESPIE AND § IN THE DISTRICT COURT
MICHAEL O’BRIEN §
§
§
v. § 408th JUDICIAL DISTRICT
§
§
A. L. HERNDEN AND §
FREDERICK R. ZLOTUCHA § BEXAR COUNTY, TEXAS
MOTION TO RECONSIDER SUMMARY JUDGMENT
AND IN THE ALTERNATIVE
MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
DAVID GILLESPIE and MICHAEL O’BRIEN, Plaintiffs, file this motion to
reconsider summary judgment, and in the alternative motion for new trial, pursuant
to TEX. R. CIV. P. 320 in support thereof show as follows:
I. BACKGROUND FACTS OF THIS PROCEEDING
This is a breach of fiduciary duty, DTPA and declaratory judgment action,
brought to review the conduct of surrounding the applicability, legality and
violations of fiduciary duty between lawyers and clients in the context of an oil and
gas contingency fee contract. A full and final judgment was rendered against the
Plaintiffs on April 2, 2015. The trial court granted summary judgment against
Plaintiffs, dismissing the entirety of their case and denying their Motion for
Rehearing of their Motion for Summary Judgment denied by the court.
1
1026
II. PROCEDURAL TIMELINE
The Order sought to be appealed from was finalized on April 2, 2015, and
thirty days (30) have not expired from its entry. Plaintiffs once again seek redress
in regards to the relationship with their former attorneys who acted outside of the
bounds of professional conduct and in contravention of their client’s interest. Old
Republic Ins. Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993). This motion is in
accord with the Rule 320 of the TEXAS RULES OF CIVIL PROCEDURE.
III. AS A MATTER OF LAW A.L.HERNDEN BREACHED
FIDUCIARY DUTIES OWED TO PLAINTIFFS
David Gillespie and Michael O’Brien hired A.L.Hernden to be their
attorney in a “dispute regarding an alleged partnership involving Joe H. Amberson
and the leasing of certain oil and gas interests in McMullen County Texas.” Mr.
Hernden had a fiduciary relationship with both David Gillespie and Michael
O’Brien during the entirety of his representation of them.
The Supreme Court of Texas has explained the consequences of this
fiduciary relationship which exist between any lawyer, including Mr. Hernden,
and his clients, as follows: “In Texas, we hold attorneys to the highest standards
of ethical conduct in their dealings with their clients. The duty is highest when the
attorney contracts with his or her client or otherwise takes a position adverse to his
or her clients’ interest. As Justice Cardozo observed, ‘[a fiduciary] is held to
something stricter than the morals of the marketplace. Not honesty alone, but the
punctilio of an honor the most sensitive, is then the standard of behavior.’
2
1027
Accordingly, a lawyer must conduct his or her business with inveterate honesty
and loyalty, always keeping the clients’ best interest in mind.” Hoover Slovacek
LLP v. Walton, 206 S.W.3d 557, 560 (Tex. 2006), citing, Lopez v. Munoz,
Hockema & Reed, L.L.P., 22 S.W.3d 857, 868 (Tex. 2000). Similarly, in Anglo-
Dutch Petroleum International, Inc. v. Greenberg Peden, P.C., 952 S.W.3d 445,
450 (Tex. 2011), the Supreme Court of Texas held that “Because a lawyer’s
fiduciary duty to a client covers contract negotiations between them, such
contracts are closely scrutinized. Part of the lawyer’s duty is to inform the client
of all material facts. And so that this responsibility is not a mere and meaningless
formality, the lawyer must be clear.”
Among the things which a lawyer may do or fail to do, which constitute
breaches of his fiduciary duties to his clients are failing to disclose a conflict of
interest, improperly benefiting from representation of a client, and engaging in
self-dealing. Cases recognizing these breaches of fiduciary duty include Brown v.
Green, 2009 W.L. 4573451 at *4 (Tex. App. – Houston [14th Dist.] 2009, no pet.),
and Walker v. Morgan, 2009 W.L. 3763779 at *2–*3 (Tex. App. – Beaumont
2009, no pet.). Mr. Hernden breached his fiduciary duties to both David Gillespie
and Michael O’Brien.
Purportedly in consideration of Mr. Hernden’s representation of David
Gillespie and Michael O’Brien, the written contract:
sells, transfers and assigns to the said attorney a FIFTY PER CENT
(sic)(50%) interest, in and to this matter, claim, and any property
obtained through such demand, and/or case, and any compromise,
3
1028
settlements, judgment, or recovery of any sort whatsoever and
howsoever acquired relating thereto, that Client may recover or be
entitled to by reason of said matter, claim, demand, and/or case.
(italics added). As a matter of law, this contract is unreasonable, unconscionable,
and constitutes a breach of Mr. Hernden’s fiduciary duty of full disclosure and his
duty of loyalty to his clients. Clients such as David Gillespie and Michael O’Brien
are very unlikely to know that an attorney is “prohibited from acquiring a
proprietary interest in the cause of action or subject matter of the litigation the
lawyer is conducting for a client.” TEXAS DISCIPLINARY RULE OF PROFESSIONAL
CONDUCT 1.08(h). Additionally, Mr. Gillespie and Mr. O’Brien are very unlikely
to know that a lawyer “shall not enter into a business transaction with the client
unless:
(1) the transaction and terms on which the lawyer acquires the
interest are fair and reasonable to the client and are fully disclosed in
a manner which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of
independent counsel in the transaction; and
(3) the client consents in writing thereto.”
TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08(a).
Mr. Gillespie’s and Mr. O’Brien’s contracts with Mr. Hernden are not
contingent fee contracts permitted by TEXAS DISCIPLINARY RULE OF
PROFESSIONAL CONDUCT 1.04. The contracts purport to “sell[], transfer and
assign” to Mr. Hernden a fifty percent interest for services rendered and to be
rendered. However there is no information on what representation had been
4
1029
rendered or was to be rendered. But more importantly, there is no information as
to what constitutes a fifty percent interest in a “dispute regarding an alleged
partnership involving Joe H. Amberson and the leasing of certain oil and gas
interests in McMullen County Texas.” Based upon the contract alone, there is no
way to understand the work to be done, define the method by which the ownership
interest is to be determined, or even to establish what are the expenses to be
deducted from the recovery.
Even if this were a valid contingent fee contract, the client cannot make a
meaningful, well considered, or intelligent decision regarding whether the fee
agreement is appropriate. In his February 24, 2014 deposition, when asked about
the value of the fee being charged Mr. Hernden testifies, “[i]n my opinion what it
was worth? The day we got it, it was probably worth, at the most, $3,000 a mineral
acre. That makes it $120,000.”1 February 24, 2014 Deposition of A.L.Hernden,
10:25-11:2. However, when asked about the value of the fee contract at the
conclusion of the representation Mr. Hernden testifies very differently:
A. Well, I don’t really know what it’s worth today because,
number one, the production seems to have gone way down. I mean,
you’ve got to know, Eagle Ford wells generally – and this is just a
general rule, because it’s not a set rule. They produce 82 percent of
their oil in the first year. So, the first year of a lease, you get a
bunch of money. Then it goes down in the last 30 years. But at the
last, it will be doing two or three barrels a day. So, right now, the
last check we got was $5,000, so I don’t know. Maybe it’s going
down, nosediving. I have no idea. But that’s a general rule, is 82
percent of the oil from an Eagle Ford well comes the first year.
1
This is also to say that on the day the contracts were signed, that Mr. Hernden had agreed to act as Mr.
Gillespie’s and Mr. O’Brien’s attorney and provide representation in exchange for a fifty percent interest in
a claim worth no more than $120,000. February 24, 2014 Deposition of A.L.Hernden, 11:10-12.
5
1030
Q. So you don’t know?
A. I really don’t know. If I had to put a pencil to it, I would – I
would say that it’s not worth nearly what you think it is, because –
because of it being Eagle Ford, okay? But I – I could probably
figure out – I could take you to some experts and let them decide
what it’s worth.
February 24, 2014 Deposition of A.L.Hernden, 11:14-12:8.
If at the present time Mr. Hernden cannot calculate the value of his interest,
there is no possible way that he could be said to have complied with TEXAS
DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08. By failing to comply with
TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08, Mr. Hernden
breached the fiduciary duty which he owed to Mr. Gillespie and Mr. O’Brien. As
such, his contract with Mr. Gillespie and Mr. O’Brien is voidable. TEX. GOV’T
CODE § 82.065.
Moreover, through his testimony, Mr. Hernden admits that he spent no
more than 100 hours on this matter. February 24, 2014 Deposition of
A.L.Hernden, 25:20. Yet for this 100 hours worked, he has made $225,000 and
counting. February 24, 2014 Deposition of A.L.Hernden, 34:14-24. In testimony,
Mr. Hernden describes his contract like this: “Yeah, I got a Lotto ticket. I won a
Lotto ticket for 100 hours worked, okay?” February 24, 2014 Deposition of
A.L.Hernden, 33:20-21. There is no possible way that Mr. Hernden could be said
to have complied with TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT
1.04. By failing to comply with TEXAS DISCIPLINARY RULE OF PROFESSIONAL
6
1031
CONDUCT 1.04, Mr. Hernden breached the fiduciary duty which he owed to Mr.
Gillespie and Mr. O’Brien. Again, this makes his contract with Mr. Gillespie and
Mr. O’Brien voidable. TEX. GOV’T CODE § 82.065.2
Mr. Hernden’s breaches of fiduciary duty were clearly prejudicial and a
cause of damage to Mr. Gillespie and Mr. O’Brien. Far more than the amount he
originally contemplated, fifty percent of a claim worth no more than $120,000,
Mr. Hernden claimed an ownership interest of half the partnership attributable to
Mr. Gillespie and Mr. O’Brien. The breach of that fiduciary duty resulted in an
improper benefit for Mr. Hernden because he received not a fee, but an ownership
interest.
The Supreme Court of Texas has repeatedly condemned lawyers who
attempt to charge a contingent fee which exceeds the amount of money recovered
by their clients. The cases on this are Levine v. Bayne, Snell & Krause, Ltd., 40
S.W.3d 92, 95 (Tex. 2001), and Hoover Slovacek, L.L.P. v. Walton, 206 S.W.3d
557, 563 (Tex. 2006). Charging a contingent fee which exceeds the client’s
recovery is an unconscionable fee and Mr. Hernden’s contracts with Mr. Gillespie
and Mr. O’Brien does so as a matter of law. Mr. Hernden’s contracts claim a fifty
percent interest, but charge all of the undefined costs and expenses of litigation to
the clients. It is a fifty fifty split, but the client bears all the costs and expenses. As
2
Although the Disciplinary Rules do not define standards of civil liability for attorneys, the Texas Supreme
Court states that they are persuasive authority outside the context of disciplinary proceedings, and are
applied rules of decision in disputes concerning attorney's fees. Hoover Slovacek, L.L.P. v. Walton, 206
S.W.3d 557, 562 (Tex. 2006); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 205 (Tex.
2002); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex. 1997).
7
1032
a matter of simple mathematics, Mr. Hernden’s contracts with Mr. Gillespie and
Mr. O’Brien attempt to charge a contingent fee which exceeds the amount of
money recovered by Mr. Gillespie and Mr. O’Brien. This is a violation of Mr.
Hernden’s fiduciary duty of loyalty and constituted self-dealing and an improper
benefit to Mr. Hernden from his representation of Mr. Gillespie and Mr. O’Brien.
IV. AS A MATTER OF LAW MR. ZLOTUCHA HAD NO RIGHT TO
REPRESENT PLAINTIFFS
At some point in September 2010, Fredrick R Zlotucha undertook
representation of Mr. Gillespie and Mr. O’Brien. Mr. Zlotucha has testified that he
did not have a written agreement with either Mr. Gillespie or Mr. O’Brien.
February 24, 2014 Deposition of F.R.Zlotucha, 12:21-25. Eventually, Mr.
Zlotucha claimed to be entitled to one half of the fifty percent claimed by Mr.
Hernden.
TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08 could not be
more clear regarding the requirement of the written consent of the client prior to
undertaking representation on a contingent fee like that argued in this case.
Specifically, TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08(d)
requires all contingent fee contracts to be in writing. Additionally, TEXAS
DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08(f) requires written consent
of the client for all fee divisions between attorneys. By failing to comply with
TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08, Both Mr. Hernden
8
1033
and Mr. Zlotucha breached the fiduciary duty which they owed to Mr. Gillespie
and Mr. O’Brien.
Mr. Zlotucha tends to want to argue that the signatures of Mr. Gillespie and
Mr. O’Brien on the “disbursement agreement,” “payout,” or “settlement sheet”
constitute a consent to his representation. This is untrue. TEXAS DISCIPLINARY
RULE OF PROFESSIONAL CONDUCT 1.08(f)(2) requires such consent to be prior to
the association or referral. By Mr. Zlotucha’s own testimony, this was not the case
here. Deposition of F.R.Zlotucha, 12:21-25. Moreover, by relying on the facially
unreasonable and unconscionable contract between Mr. Hernden, and Mr.
Gillespie and Mr. O’Brien, Mr. Zlotucha engaged in self dealing, and violated his
fiduciary duty of full disclosure and his duty of loyalty to his clients. Levine v.
Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95 (Tex. 2001); Hoover Slovacek,
L.L.P. v. Walton, 206 S.W.3d 557, 563 (Tex. 2006).
Under Texas law, a contingent fee contract for legal services must be in
writing and signed by both the attorney and client. TEX. GOV’T CODE § 82.065.
Without a written document Mr. Zlotucha cannot claim any entitlement to the
property of Mr. Gillespie and Mr. O’Brien. For Mr. Hernden and Mr. Zlotucha to
claim that property is a breach of fiduciary duty.
V. QUESTIONS OF FACT PRECLUDE DEFENDANTS’ SUMMARY
JUDGMENT
The Texas Supreme Court has stated:
whether a contract, including a fee agreement between attorney and
client, is contrary to public policy and unconscionable at the time it
9
1034
is formed is a question of law. See, e.g., TEX. BUS. & COM. CODE
§ 2.302 (courts may refuse to enforce contracts determined to be
unconscionable as a matter of law); SkiRiver Dev., Inc. v. McCalla,
167 S.W.3d 121, 136 (Tex. App.--Waco 2005, pet. denied) ("The
ultimate question of unconscionability of a contract is one of law, to
be decided by the court."); Pony Express Courier Corp. v. Morris,
921 S.W.2d 817, 821 (Tex. App.--San Antonio 1996, no writ)
(distinguishing procedural and substantive aspects of
unconscionability).
Hoover , 206 S.W.3d at 562.
However, in this case, there are fundamental questions as to the value of the
services rendered, the value of the fee purportedly agreed to, and the
circumstances surrounding its formation. By not considering these fundamental
factual questions, a court is powerless in examining the ultimate legal question.
The term "unconscionability" describes a contract that is unfair because of
its overall one-sidedness or the gross one-sidedness of one of its terms. Currey v.
Lone Star Steel, Co., 676 S.W.2d 205, 213 (Tex. App.--Fort Worth 1984, no
writ); see also TEX. BUS. & COM. CODE ANN. § 17.45(5) (Vernon Supp. 1996)
(describing unconscionable actions under the Texas Deceptive Trade Practices--
Consumer Protection Act); TEX. BUS. & COM. CODE ANN. § 2.302 (Vernon
1994) (discussing unconscionable contracts under the Uniform Commercial
Code). "Unconscionability" has no precise legal definition because it is not a
concept but a determination to be made in light of a variety of facts. Southwestern
Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 498 (Tex. 1991)(Gonzalez, J.,
concurring) (citing 1 J. WHITE & R. SUMMERS, UNIFORM COMMERCIAL
CODE § 4-3 at 203 (3d ed. 1988)); see also RESTATEMENT (SECOND) OF
10
1035
CONTRACTS § 208, comment a(1979) (including "weaknesses in the contracting
process" and related public policy concerns).
Although no single formula exists, proof of unconscionability begins with
broad factual questions: (1) How did the parties arrive at the terms in controversy;
and (2) Are there legitimate commercial reasons justifying the inclusion of the
terms? DeLanney, 809 S.W.2d at 498-99(Gonzalez, J., concurring). The first
question, often described as the procedural aspect of unconscionability, is
concerned with assent and focuses on the facts surrounding the bargaining
process. Id. at 499; Tri-Continental Leasing Corp., 710 S.W.2d at 609. The second
question, often described as the substantive aspect of unconscionability, is
concerned with the fairness of the resulting agreement. DeLanney, 809 S.W.2d at
499 (Gonzalez, J., concurring); Wade v. Austin, 524 S.W.2d 79, 86 (Tex. Civ.
App.--Texarkana 1975, no writ).
Unconscionability involves both questions of law and fact.
Pony Express Courier, 921 S.W.2d at 820. In short, unconscionability must be
determined on a case-by-case basis. Pearce v. Pearce, 824 S.W.2d 195, 199 (Tex.
App.--El Paso 1991, writ denied). As the Texas Supreme Court concludes
“whether a particular fee amount or contingency percentage charged by the
attorney is unconscionable under all relevant circumstances of the
representation is an issue for the factfinder. Hoover , 206 S.W.3d at 561-62,
citing Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 233 (Tex. App.--
Houston [14th Dist.] 2000, no pet.) (concluding that the evidence was sufficient to
11
1036
support a finding that a contingent fee equaling more than half of the client's
recovery was unconscionable).
Lawyers have a duty, at the outset of the representation, to "inform a client
of the basis or rate of the fee" and "the contract's implications for the client."
Levine, 40 S.W.3d at 96 (citing RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS §§ 38(1), 18). "To impose the obligation of clarifying attorney client
contracts upon the attorney 'is entirely reasonable, both because of [the attorney's]
greater knowledge and experience with respect to fee arrangements and because of
the trust [the] client has placed in [the attorney].'" Levine, 40 S.W.3d at 95
(quoting Cardenas v. Ramsey County, 322 N.W.2d 191, 194 (Minn. 1982))
(alterations in original). For these reasons, the "failure of the lawyer to give at the
outset a clear and accurate explanation of how a fee was to be calculated" weighs
in favor of a conclusion that the fee is unconscionable. TEXAS DISCIPLINARY RULE
OF PROFESSIONAL CONDUCT 1.04 cmt. 8.
On its face, Mr. Hernden’s contract is unconscionable and violates the
fiduciary duties owed to Mr. Gillespie and Mr. O’Brien by:
1) acquiring a proprietary interest in the cause of action
or subject matter of the litigation;
2) entering into a business transaction with the clients
without any way to comply with TEXAS DISCIPLINARY RULE OF
PROFESSIONAL CONDUCT 1.08(a);
3) being impermissibly vague regarding the work to be
done, the method by which the ownership interest is to be
determined, or what are the expenses to be deducted from a
recovery;
12
1037
4) charging an unreasonable fee; and,
5) mathematically seeking a greater recovery than that
awarded to the client.
Likewise, the fee taken by Mr. Zlotucha cannot be supported because he breached
his fiduciary duties by:
1) attempting to collect a contingent fee where there is no
written consent of the client which comports to the requirements of
TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08;
2) seeking a fee that is unreasonable; and
3) self dealing in claiming an interest acquired as a result of a
facially unconscionable contract.
Each of these are factual issues making summary judgment in favor of Mr.
Hernden and Mr. Zlotucha improper.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that this Court
grant this motion to reconsider summary judgment, and in the alternative motion for
new trial, and such other and further relief, both general or special, to which they
shows theirselves justly entitled.
Respectfully submitted,
GENE TOSCANO, INC.
846 Culebra, Ste. 104
San Antonio, TX 78201
TEL: (210) 732-6091
FAX: (210) 735-4167
By /s/ Andrew E. Toscano
ANDREW E. TOSCANO
State Bar No. 00786832
ATTORNEYS FOR
PLAINTIFFS
13
1038
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has
been mailed to the all defense attorneys of record on this 1st day of May, 2015:
Mr. Richard A. Sparr, Jr.
1313 N. E. Loop 410, Suite 100
San Antonio, Texas, 78209
SENT BY FACSIMILE TRANSMISSION
TO: (210) 828-5444
Mr. Frederick R. Zlotucha
222 Main Plaza East
San Antonio, Texas 78205
SENT BY FACSIMILE TRANSMISSION
TO: (210) 227-8316
/s/ Andrew E. Toscano
ANDREW E. TOSCANO
14
1039
1045
1046
1047
1048
1049
1050
1051
1052
1053
FILED
7/3/2015 10:29:15 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez
CAUSE NO. 2013-CI-10278
DAVID GILLESPIE AND § IN THE DISTRICT COURT
MICHAEL O’BRIEN §
§
v. § 408th JUDICIAL DISTRICT
§
A. L. HERNDEN AND §
FREDERICK R. ZLOTUCHA § BEXAR COUNTY, TEXAS
NOTICE OF APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
WHEREAS ON April 2, 2015, the Honorable Cathleen M. Stryker of the 224th
Judicial District Bexar Court, entered a Final Judgment in this cause. Plaintiff, DAVID
GILLESPIE wishes to appeal from said Final Judgment to the Court of Appeals for the
Fourth District of Texas in San Antonio, Texas.
RESPECTFULLY SUBMITTED,
GENE TOSCANO, INC.,
BY: /s/ Andrew E. Toscano
ANDREW E. TOSCANO
SBN: 00786832
846 Culebra Road, Suite 104
San Antonio, Texas 78201
210/732-6091 tel
210/735-4167 fax
ATTORNEY PLAINTIFF
1043
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been
sent by hand delivery to the following counsel of record on this 3rd day of July, 2015:
Mr. Richard A. Sparr, Jr.
1313 N. E. Loop 410, Suite 100
San Antonio, Texas, 78209
SENT BY FACSIMILE TRANSMISSION
TO: (210) 828-5444
Mr. Frederick R. Zlotucha
222 Main Plaza East
San Antonio, Texas 78205
SENT BY FACSIMILE TRANSMISSION
TO: (210) 227-8316
FOURTH COURT OF APPEALS
Cardena-Reeves Justice Center
300 Dolorosa Ste. 3200
San Antonio, Texas 78205
210-355-2762- fax
/s/ Andrew E. Toscano
ANDREW E. TOSCANO
1044
FILE COPY
COURT OF APPEALS
SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT
KAREN ANGELINI 300 DOLOROSA, SUITE 3200
MARIALYN BARNARD SAN ANTONIO, TEXAS 78205-3037
REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE
PATRICIA O. ALVAREZ (210) 335-2635
LUZ ELENA D. CHAPA
JASON PULLIAM FACSIMILE NO.
JUSTICES (210) 335-2762
July 6, 2015
Richard A. Sparr Jr. Andrew E. Toscano
Sparr & Geerdes Gene Toscano Inc
1313 NE Loop 410 Ste 100 846 Culebra Rd Ste 104
San Antonio, TX 78209-1529 San Antonio, TX 78201-6244
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Frederick R. Zlotucha
Law Office of Frederick R. Zlotucha
222 E Main Plz
San Antonio, TX 78205-2717
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 04-15-00405-CV
Trial Court Case Number: 2013-CI-10278
Style: David Gillespie and Michael O'Brien
v.
A.L. Hernden and Frederick R. Zlotucha
The copy of appellant's notice of appeal in the above styled and numbered cause has this date
been filed or conditionally filed.
The fee for filing appeals in this court from the district or county is $195.00. The fee must be
paid at the time the notice of appeal is filed. In addition, this court charges an additional fee of $10.00 for
the filing of any motion. Any delay in remitting a filing fee will delay the processing of your appeal and
the court’s ruling on pending motions. See TEX. R. APP. P. 5. Our records do not reflect payment of the
$195.00 fee. Please remit the filing fee no later than July 16, 2015. If the fee is not paid within the time
allotted, the matter will be referred to the court, and the appeal is subject to being stricken by the court.
See TEX. R. APP. P. 5.
In accordance with TEX. R. APP. P. 32 and 4TH TEX. APP. (SAN ANTONIO) LOC. R. 5.2., a
docketing statement must be filed with the notice of appeal. Our records do not contain a docketing
statement for this appeal. Please ensure that a docketing statement is immediately filed to ensure prompt
processing of the appeal. The Appellant’s docketing statement is due from attorney, Andrew E. Toscano.
The docketing statement is to be filed with this court by July 16, 2015.
The appellate record generally must be filed in this court within 120 days after the date of
judgment is signed if any party timely files: (1) a motion for new trial; (2) a motion to modify the
judgment; (3) a motion to reinstate under TEXAS RULES OF CIVIL PROCEDURE 165a; or (4) a request for
findings of fact and conclusions of law if required or if not required could properly be considered by the
appellate court. See TEX. R. APP. P. 35.1.
Very truly yours,
KEITH E. HOTTLE, CLERK
_____________________________
Luz Estrada
Deputy Clerk, Ext. 53219
cc: Honorable Cathleen M. Stryker
Donna Kay McKinney (DELIVERED VIA E-MAIL)
Fourth Court of Appeals
San Antonio, Texas
July 28, 2015
No. 04-15-00405-CV
David GILLESPIE and Michael O'Brien,
Appellants
v.
A.L. HERNDEN and Frederick R. Zlotucha,
Appellees
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding
ORDER
To date, appellant David Gillespie has failed to pay the applicable filing fee in this
appeal. Texas Rule of Appellate Procedure 5 provides,
A party who is not excused by statute or these rules from paying costs must pay—
at the time an item is presented for filing—whatever fees are required by statute
or Supreme Court order. The appellate court may enforce this rule by any order
that is just.
TEX. R. APP. P. 5.
We, therefore, ORDER appellant, within ten (10) days of the date of this order, to either
(1) pay the applicable filing fee in this appeal or (2) provide written proof to this court that he is
excused by statute or these rules from paying the filing fee. See TEX. R. APP. P. 20.1 (providing
that party who qualifies as indigent under Rule 20 may proceed without advance payment of
costs). If appellant fails to respond within the time provided, this appeal will be dismissed. See
TEX. R. APP. P. 42.3(c).
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 28th day of July, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
A.L. s
Fourth Court of Appeals
San Antonio, Texas
September 15, 2015
No. 04-15-00405-CV
David GILLESPIE,
Appellant
v.
A.L. HERNDEN and Frederick R. Zlotoucha,
Appellees
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding
ORDER
The trial court signed a final judgment on April 2, 2015. Appellant David Gillespie filed
a timely motion for new trial on May 1, 2015. Therefore, the notice of appeal was due to be filed
on July 1, 2015. See TEX. R. APP. P. 26.1(a). However, appellant filed a notice of appeal on July
3, 2015. A motion for extension of time to file the notice of appeal was due on July 16, 2015. See
TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace
period allowed by Rule 26.3, he did not file a motion for extension of time.
A motion for extension of time is necessarily implied when an appellant, acting in good
faith, files a notice of appeal beyond the time allowed by Texas Rule of Appellate Procedure
26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for
extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the
predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing
to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).
We, therefore, ORDER appellant to file, within fifteen days from the date of this order, a
response presenting a reasonable explanation for failing to file the notice of appeal in a timely
manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See
TEX. R. APP. P. 42.3(c).
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 15th day of September, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
ACCEPTED
04-15-00405-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/30/2015 12:52:27 PM
KEITH HOTTLE
CLERK
NO. 04-15-00405-CV
FILED IN
In the Court of Appeals 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
for the 09/30/2015 12:52:27 PM
Fourth District KEITH E. HOTTLE
Clerk
San Antonio, Texas
DAVID GILLESPIE,
Appellant
V.
A.L. HERNDEN,
Appellee
On Appeal from the 408th Judicial District Court of Bexar County, Texas
(Cause No. 2013-CI-10278, Hon. Cathleen M. Stryker, Presiding)
APPELLEE’S MOTION FOR EXTENSION OF TIME
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
1. Appellant, David Gillespie, herewith files his response to this Court’s
Order of September 15, 2015.
2. Appellant filed its Notice of Appeal on July 3, 2015, two days after
its due date of July 1, 2015. The Clerk’s record was filed on September 9, 2015.
3. Appellant advises the Court that due to a calendar error caused by the
preparation of a response to Motion for Summary Judgment in the case styled
Civil Action No. 5:14-CV-00733; John Gonzales vs. Robles and Sons, Inc.,
Robles Service Group, LLC, Vaughn Construction Company, Sunbelt Rentals
Industrial Services, LLC and JLG Industries, Inc.; In the United States District
Court Western District of Texas San Antonio Division, the hearing on Motion for
Rulings in the case styled Cause No. 2012-CI-09903; John Joseph Carreon and
John A. Polito vs. Greater San Antonio Transportation Company d/b/a Yellow
Cab. in preparation for trial on July 6, 2015, and the final preparation of the
documents in the case styled Cause No. 5:14-CV-00149; Candelario V. Gonzalez,
et al. v. Cooper Tire and Rubber Company, et al, the Notice of Appeal was not
filed timely. Undersigned counsel because of his schedule, inadvertently failed to
file the Notice but upon discovery immediately did so.
4. Appellee respectfully requests accept the Notice of Appeal that was
filed within the 15 day grace period as timely and for general relief.
5. Appellee files this Motion for Extension of Time to File Appellant’s
Brief Notice of Appeal pursuant to Texas Rules of Appellate Procedure 26.3,
10.5(b)(1)(C), 38.6(d), and the Local Rules of Fourth Court of Appeals.
WHEREFORE, Appellant, by and through its undersigned Counsel,
requests the Court consider this motion and extend the time for filing its
Appellant’s Notice of Appeal until July 3, 2015.
Respectfully submitted,
GENE TOSCANO, INC.
846 Culebra Road, Suite 104
San Antonio, Texas 78201-6244
Telephone: (210) 732-6091
Facsimile: (210) 735-4167
BY: /s/ Andrew E. Toscano
ANDREW E. TOSCANO
Attorney at Law
State Bar No. 00786832
COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has
this day been served on the counsel below, in the means and by the manner
indicated hereinafter:
Mr. Richard A. Sparr, Jr.
1313 N. E. Loop 410, Suite 100
San Antonio, Texas, 78209
SENT BY FACSIMILE TRANSMISSION
TO: (210) 828-5444
Mr. Frederick R. Zlotucha
222 Main Plaza East
San Antonio, Texas 78205
SENT BY FACSIMILE TRANSMISSION
TO: (210) 227-8316
FOURTH COURT OF APPEALS
Cardena-Reeves Justice Center
300 Dolorosa Ste. 3200
San Antonio, Texas 78205
210-355-2762- fax
Signed on September 30, 2015.
/s/ Andrew E. Toscano
Andrew E. Toscano
Counsel for Appellee
FILE COPY
COURT OF APPEALS
SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT
KAREN ANGELINI 300 DOLOROSA, SUITE 3200
MARIALYN BARNARD SAN ANTONIO, TEXAS 78205-3037
REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE
PATRICIA O. ALVAREZ (210) 335-2635
LUZ ELENA D. CHAPA
JASON PULLIAM FACSIMILE NO.
JUSTICES (210) 335-2762
September 30, 2015
Richard A. Sparr Jr. Andrew E. Toscano
Sparr & Geerdes Gene Toscano Inc
1313 NE Loop 410 Ste 100 846 Culebra Rd Ste 104
San Antonio, TX 78209-1529 San Antonio, TX 78201-6244
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Frederick R. Zlotucha
Law Office of Frederick R. Zlotucha
222 E Main Plz
San Antonio, TX 78205-2717
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 04-15-00405-CV
Trial Court Case Number: 2013-CI-10278
Style: David Gillespie
v.
A.L. Hernden and Frederick R. Zlotoucha
The Appellant's Motion for Extension of Time to File Notice of Appeal has this date been
received and filed in the above styled and numbered cause.
Very truly yours,
KEITH E. HOTTLE, CLERK
_____________________________
Luz Estrada
Deputy Clerk, Ext. 53219
FILE COPY
COURT OF APPEALS
SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT
KAREN ANGELINI 300 DOLOROSA, SUITE 3200
MARIALYN BARNARD SAN ANTONIO, TEXAS 78205-3037
REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE
PATRICIA O. ALVAREZ (210) 335-2635
LUZ ELENA D. CHAPA
JASON PULLIAM FACSIMILE NO.
JUSTICES (210) 335-2762
October 5, 2015
Richard A. Sparr Jr. Andrew E. Toscano
Sparr & Geerdes Gene Toscano Inc
1313 NE Loop 410 Ste 100 846 Culebra Rd Ste 104
San Antonio, TX 78209-1529 San Antonio, TX 78201-6244
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Frederick R. Zlotucha
Law Office of Frederick R. Zlotucha
222 E Main Plz
San Antonio, TX 78205-2717
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 04-15-00405-CV
Trial Court Case Number: 2013-CI-10278
Style: David Gillespie
v.
A.L. Hernden and Frederick R. Zlotoucha
Enclosed please find the order which the Honorable Court of Appeals has
issued in reference to the above styled and numbered cause.
If you should have any questions, please do not hesitate to contact me.
Very truly yours,
KEITH E. HOTTLE, CLERK
_____________________________
Luz Estrada
Deputy Clerk, Ext. 53219
cc: Donna Kay McKinney (DELIVERED VIA E-MAIL)
FILE COPY
David GillespieAppellant/s A.L.
Fourth Court of Appeals
San Antonio, Texas
October 5, 2015
No. 04-15-00405-CV
David GILLESPIE,
Appellant
v.
A.L. HERNDEN and Frederick R. Zlotoucha,
Appellees
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding
ORDER
On September 15, 2005, we ordered appellant to offer a reasonable explanation for filing
a late notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). “[A]ny
plausible statement of circumstances indicating that failure to file . . . was not deliberate or
intentional, but was the result of inadvert[e]nce, mistake, or mischance, [would] be accepted as a
reasonable explanation.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989); see
also Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.—San Antonio 1998, no
pet.). Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence,
mistake or mischance, even if that conduct can also be characterized as professional negligence.
Garcia, 774 S.W.2d at 670; Dimotsis, 966 S.W.2d at 657. Appellant timely responded to our
order, stating that his counsel, in light of other deadlines in his law practice, inadvertently failed
to timely file the notice of appeal. The explanation is reasonable. We, therefore, grant the motion
for extension of time to file the notice of appeal and ORDER this appeal retained on the court’s
docket. We further ORDER that appellant’s brief is due on November 4, 2015.
kaa
_________________________________
Karen Angelini, Justice
FILE COPY
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 5th day of October, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
ACCEPTED
04-15-00405-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/21/2015 12:04:27 PM
KEITH HOTTLE
CLERK
No. 04-15-00405-CV FILED IN
__________________________________________ 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS OF TEXAS 10/21/2015 12:04:27 PM
FOURTH JUDICIAL DISTRICT KEITH E. HOTTLE
SAN ANTONIO, TEXAS Clerk
__________________________________________
DAVID GILLESPIE,
Appellant,
vs.
A.L. HERNDEN and FREDERICK R. ZLOTOUCHA,
Appellees.
__________________________________________
NOTICE OF APPEARANCE OF APPELLATE COUNSEL &
APPELLANT’S UNOPPOSED MOTION FOR BRIEFING DEADLINE
EXTENSION
To the Honorable Court:
Appellant David Gillespie asks this Court and all counsel of
record to take notice that he has retained appellate counsel:
Kimberly S. Keller, Keller Stolarczyk PLLC, 234 West Bandera Road,
No. 120, Boerne, Texas 78006.
Appellant respectfully requests this Court grant him a 30-day
briefing deadline extension.1 Appellant’s brief is currently due on
Appellant’s newly-retained appellate counsel has recently received the
1
appellate record and needs time to analyze the appellate record, research the
November 4, 2015. If this Court grants this Motion, Appellant’s brief
will be due on December 4, 2015. Appellees are unopposed to this
Motion.
Respectfully submitted,
KELLER STOLARCZYK, PLLC
234 West Bandera Road #120
Boerne, Texas 78006
Tele: 830.981.5000
Facs: 888.293.8580
/s/Kimberly S. Keller
Kimberly S. Keller
SBN: 24014182
kim@kellsto.com
COUNSEL FOR APPELLANT
legal issues presented by the trial court’s ruling, and prepare and file a brief to
this Court raising Appellant’s issues on appeal.
2
CERTIFICATE OF CONFERENCE & SERVICE
I conferred with opposing counsel, listed below, and was
informed Appellees are unopposed to this Motion. Also, I certify that
on October 21, 2015, I served this Motion on:
Richard A. Sparr Jr.
SPARR & GEERDES
1313 NE Loop 410, Suite 100
San Antonio, Texas 78209
Email: rsparr@sparrlaw.net
Frederick R. Zlotucha
LAW OFFICE OF FREDERICK R. ZLOTUCHA
222 E. Main Plaza
San Antonio, Texas 78205
Counsel for Appellees
/s/Kimberly S. Keller
Kimberly S. Keller
3
FILE COPY
Fourth Court of Appeals
San Antonio, Texas
October 21, 2015
No. 04-15-00405-CV
David GILLESPIE,
Appellant
v.
A.L.
A.L. HERNDEN and Frederick R. Zlotoucha,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding
CORRECTED ORDER
The Appellant’s Motion for Extension of Time to File Brief has this date been received
and filed in the above styled and numbered cause. Extension of time to file the Appellant’s brief
is this date GRANTED. Time is extended to December 4, 2015.
PER CURIAM
ATTESTED TO: ____________________________
KEITH E. HOTTLE
CLERK OF COURT
cc: Kimberly S. Keller Richard A. Sparr Jr.
No. 120 Sparr & Geerdes
Boerne, TX 78006-2805 1313 NE Loop 410 Ste 100
San Antonio, TX 78209-1529
Andrew E. Toscano
Gene Toscano Inc Frederick R. Zlotucha
846 Culebra Rd Ste 104 Law Office of Frederick R. Zlotucha
San Antonio, TX 78201-6244 222 E Main Plz
San Antonio, TX 78205-2717
ACCEPTED
04-15-00405-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/3/2015 12:11:03 PM
KEITH HOTTLE
CLERK
No. 04-15-00405-CV FILED IN
__________________________________________ 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS OF TEXAS 11/3/2015 12:11:03 PM
FOURTH JUDICIAL DISTRICT KEITH E. HOTTLE
SAN ANTONIO, TEXAS Clerk
__________________________________________
DAVID GILLESPIE,
Appellant,
vs.
A.L. HERNDEN and FREDERICK R. ZLOTOUCHA,
Appellees.
__________________________________________
AMENDED NOTICE OF APPEAL
To the Honorable Court:
Plaintiff below, Michael O’Brien, hereby gives notice that he
intends to appeal the final judgment entered by the trial court (Hon.
Cathleen M. Stryker, 224th District Court, Bexar County) on April 2,
2015.1 This appeal will be taken to the Fourth District Court of
Appeals in San Antonio, Texas. An original notice of appeal was
filed by Plaintiff below, David Gillespie, on July 3, 2015;2 although
1
This Amended Notice of Appeal is filed under Texas Rule of Appellate
Procedure 25.1(g), which permits a litigant to file an amended notice of appeal
to correct a “defect or omission” at “any time before the appellant’s brief is
filed.”
2
A copy of the original notice of appeal is attached to this Amended Notice of
Appeal.
the style on the notice contained both David Gillespie’s and Michael
O’Brien’s names, O’Brien’s name was omitted, in oversight, within
the body of the notice. Gillespie and O’Brien now file this Amended
Notice of Appeal to clarify that both Gillespie and O’Brien are
appealing the trial court’s April 2, 2015 Final Judgment.3
Appellants respectfully request the Clerk of the Court to
change the style of the appeal to reflect both Appellants, David
Gillespie and Michael O’Brien, as appellants in this appeal.
Respectfully submitted,
KELLER STOLARCZYK, PLLC
234 West Bandera Road #120
Boerne, Texas 78006
Tele: 830.981.5000
Facs: 888.293.8580
/s/Kimberly S. Keller
Kimberly S. Keller
SBN: 24014182
kim@kellsto.com
COUNSEL FOR APPELLANTS
3
Co-Appellants note that the Final Judgment rendered final an interlocutory
order entered by the trial court on August 6, 2014, denying Appellants’
summary judgment motion. Co-Appellants intend to appeal both rulings by the
trial court. A copy of both the interlocutory order and final judgment are
attached to this Amended Notice of Appeal.
2
CERTIFICATE OF CONFERENCE & SERVICE
I certify that on November 3, 2015, I served this Amended
Notice of Appeal on:
Richard A. Sparr Jr.
SPARR & GEERDES
1313 NE Loop 410, Suite 100
San Antonio, Texas 78209
Email: rsparr@sparrlaw.net
Frederick R. Zlotucha
LAW OFFICE OF FREDERICK R. ZLOTUCHA
222 E. Main Plaza
San Antonio, Texas 78205
Counsel for Appellees
/s/Kimberly S. Keller
Kimberly S. Keller
3
FILED
7/3/2015 10:29:15 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez
CAUSE NO. 2013-CI-10278
DAVID GILLESPIE AND § IN THE DISTRICT COURT
MICHAEL O’BRIEN §
§
v. § 408th JUDICIAL DISTRICT
§
A. L. HERNDEN AND §
FREDERICK R. ZLOTUCHA § BEXAR COUNTY, TEXAS
NOTICE OF APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
WHEREAS ON April 2, 2015, the Honorable Cathleen M. Stryker of the 224th
Judicial District Bexar Court, entered a Final Judgment in this cause. Plaintiff, DAVID
GILLESPIE wishes to appeal from said Final Judgment to the Court of Appeals for the
Fourth District of Texas in San Antonio, Texas.
RESPECTFULLY SUBMITTED,
GENE TOSCANO, INC.,
BY: /s/ Andrew E. Toscano
ANDREW E. TOSCANO
SBN: 00786832
846 Culebra Road, Suite 104
San Antonio, Texas 78201
210/732-6091 tel
210/735-4167 fax
ATTORNEY PLAINTIFF
1043
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been
sent by hand delivery to the following counsel of record on this 3rd day of July, 2015:
Mr. Richard A. Sparr, Jr.
1313 N. E. Loop 410, Suite 100
San Antonio, Texas, 78209
SENT BY FACSIMILE TRANSMISSION
TO: (210) 828-5444
Mr. Frederick R. Zlotucha
222 Main Plaza East
San Antonio, Texas 78205
SENT BY FACSIMILE TRANSMISSION
TO: (210) 227-8316
FOURTH COURT OF APPEALS
Cardena-Reeves Justice Center
300 Dolorosa Ste. 3200
San Antonio, Texas 78205
210-355-2762- fax
/s/ Andrew E. Toscano
ANDREW E. TOSCANO
1044
1022
1023
1024
1025
563
FILED
11/19/2015 2:00:19 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez
CAUSE NO. 2013-CI-10278
DAVID GILLESPIE § IN THE DISTRICT COURT
MICHAEL O’BRIEN, §
PLAINTIFFS, §
§
—VERSUS— § 408TH JUDICIAL DISTRICT
§
A.L. HERNDEN AND §
FREDERICK R. ZLOTUCHA, §
DEFENDANTS. § BEXAR COUNTY, TEXAS
ALTERNATIVE NOTICE OF CROSS APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW A.L. Hernden and Frederick R. Zlotucha, Defendants, and hereby file their
Alternative Notice of Cross Appeal of the Order Granting Defendants’ Combined No Evidence
and Traditional Motions for Summary Judgment and Final Judgment signed by the 408th
Judicial District Court of Bexar County, the Honorable Cathy Stryker, presiding, on April 2,
2015. Defendants A.L. Hernden and Frederick R. Zlotucha desire to appeal this case to the Court
of Appeals for the Fourth Court of Appeals District of Texas in San Antonio. This notice of cross
appeal is filed in the alternative because it is conditioned on the Fourth Court of Appeals’ denial
of the Opposed Motion to Strike Untimely “Amended” Notice of Appeal Filed Four Months
After the Deadline that was filed with the Fourth Court of Appeals on November 19, 2015.
Defendants A.L. Hernden and Frederick R. Zlotucha file this Notice of Cross Appeal to preserve
their ability to complain about the late-filed “amended” notice of appeal filed by Plaintiff
Michael O’Brien on November 3, 2015.
Respectfully submitted,
/s/ Beth Watkins
Beth Watkins
State Bar No. 24037675
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666—phone
(210) 225-2300—fax
Beth.Watkins@WatkinsAppeals.com
Counsel for Defendants/ Cross Appellees
A.L. Hernden and Frederick R. Zlotucha
CERTIFICATE OF SERVICE
I hereby certify that, on November 19, 2015, I electronically served, via FileTime, my e-
filing service provider, a true and correct copy of the above document on the following counsel
of record:
Ms. Kimberly S. Keller
KELLER STOLARCZYK, PLLC
234 West Bandera Road #120
Boerne, Texas 78006
(830) 981-5000—phone
(888) 293-8580—fax
kim@kellsto.com
Attorney for Appellant
David Gillespie
/s/ Beth Watkins
Beth Watkins
Counsel for Defendants
A.L. Hernden and Frederick R. Zlotucha