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

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. Page 1 of 7 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, Page 2 of 7 109 (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: Page 3 of 7 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 Page 4 of 7 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 Page 5 of 7 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 Page 6 of 7 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 Page 7 of 7