Lee Weir, Mike Weir and Al Weir v. Holt Texas, LTD. D/B/A Holt Cat

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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