ACCEPTED
04-15-00116-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/3/2015 2:34:34 PM
KEITH HOTTLE
CLERK
NO. 04-15-001 16—CV
FILED IN
WEIR BROS, INC., LEE WEIR, § IN THEOF
4th COURT FOURTH
APPEALS
MIKE WEIR, AND AL WEIR SAN ANTONIO, TEXAS
03/3/2015 2:34:34 PM
Appellants, E KEITH E. HOTTLE
Clerk
V. COURT OF APPEALS
HOLT TEXAS, LTD., D/B/A HOLT CAT, g
Appellee. 2 SAN ANTONIO, TEXAS
APPELLEE’S MOTION TO DISMISS APPEAL
Appellee HOLT TEXAS, LTD., D/B/A HOLT CAT (“Holt”) files this its Motion to
Dismiss Appellants Weir Bros, Inc., Lee Weir, Mike Weir and Al Weir’s (collectively “Weir”)
appeal for want of jurisdiction, as follows:
I.
PRELIMINARY STATEMENT
1. On March 2, 2015, Weir filed their Notice of Appeal with this Court and the 285"‘
Judicial District Court of Bexar County. In their Notice, Weir state that “no notice of the
[October 2, 2014] Order [appointing a receiver and turnover order] was served upon them.” See
Notice of Appeal, which is on file in this appeal and which Appellee asks the Court to take
iudicial notice
II.
ARGUMENT AND AUTHORITIES
2. The Court has no jurisdiction over the Appeal and should dismiss this case
because Weir has failed to comply with the deadlines articulated in Texas Rule of Appellate
Procedure 4.2(a)(l) and 4.2(c).
3’. Weir’s Notice of Appeal acknowledges that they seek to appeal an order
appointing receiver and turnover order signed by The Honorable Gloria Saldana on October 2,
2014. Id. It is also undisputed that Weir filed the Notice of Appeal on March 2, 2015, one
hundred and fifty-one (151) days after the Order was signed.
4. Texas Rule of Appellate Procedure 4.2(a)(l) mandates that, even if Weir did not
receive notice of Judge Saldana’s October 2, 2014 signed Order, “in no event may the period [to
file Weir’s Notice of Appeal] begin more than 90 days after the judgment or order is signed.”
Because Weir failed to timely perfect their appeal, the Court must dismiss the appeal for want of
jurisdiction.
5. In addition, Weir have failed to comply with Texas Rule of Appellate Procedure
4.2(c), which required Weir to obtain a written order finding the date when Weir or their attorney
first either received notice or acquired actual knowledge that the judgment or order was signed.
See also, Tex. R. Civ. P. 306a(5).
PRAYER
THEREFORE, it is requested that this Court dismiss Appellants’ Appeal for want of
jurisdiction.
BARTON, EAST & CALDWELL, P.L.L.C.
One Riverwalk Place, Suite 1825
700 N. St. Mary’s Street
San Antonio, Texas 78205
Telephone: (210) 225-1655
Facsimile: (210) 225-8999
By: /s/ WADE CALDWELL
G.
G. WADE CALDWELL
StateBar No. 03621020
Email: ycaldwel1@beclaw.com
ZACHARY J. FANUCCHI
State Bar No. 24028548
Email: ztanucchi(@beclaw.com
ATTORNEYS FOR APPELLEE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document will be served
electronically via eFile Texas.gov and in the manner indicated below this 3”‘ day of March 9
2015 upon the following:
Mitchell Madden
Dennis Holmgren
K
__
First Class
Facsimile
Mail
I-lolmgren, Johnson, Mitchell, Madden,
13800 Montfort Drive, Suite 160
LLP __ Hand Delivery
_;g_ Electronic Transmission
Dallas, Texas 75240
/s/ G.WADE CALDWELL
G. WADE CALDWELL