ACCEPTED
03-15-00295-CV
7884378
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/18/2015 12:27:53 PM
JEFFREY D. KYLE
CLERK
DOCKET NO. 3-15-00295-CV
GERALD KOSTECKA § THIRD COURTFILED
OF IN
§ APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
§ 11/18/2015 12:27:53 PM
V. § JEFFREY D. KYLE
Clerk
§
SMOKEY MO'S FRANCHISE, §
LLC D/B/A SMOKEY MO'S
BBQ AUSTIN, TEXAS
APPELLANT’S SECOND AMENDED MOTION FOR EXTENSION
OF TIME TO FILE REPLY BRIEF
COMES NOW, Appellant Gerald Kostecka, and pursuant to the
Texas Rules of Appellate Procedure 38.6(d) and 10.5(b), files this
Second Amended Motion for Extension of Time to File Reply Brief, and
in support thereof would show as follows:
I.
Appellant’s reply brief in this case is currently due November 19,
2015. For reasons set forth below, Plaintiff is requesting an extension of
6 days until November 25, 2015 to file his reply brief. This is the third
request for an extension of time to file his reply brief made by
Appellant.
II.
On Tuesday afternoon, November 3, 2015, the house of the
undersigned counsel’s 86-year old mother in Round Rock, Texas was
flooded due to a break in a supply line in the house. A restoration
company was called out that day, but it was unable to save the hardwood
flooring which runs throughout a large portion of the first floor of the
house. New flooring will have to be installed when the subsurface has
been dried in a day or two and the insurance company approves it. The
undersigned counsel for Appellant will be handling these matters as his
mother cannot do so.
III.
In addition, the registered nurse caring for the mother of the
undersigned counsel happened to be at the house at the time of the
flooding and said afterward that the undersigned counsel’s mother will
have to be permanently moved into an assisted living center (or nursing
home) or receive care 24 hours, seven days a week at her home. This is
largely due to the fact that the undersigned counsel’s mother’s already
fragile condition has been undermined by the trauma of the flooding
incident. The undersigned counsel is handling that transition.
IV.
The undersigned counsel has learned that this entire process is
more complicated and difficult than he had originally thought. For
example, while he is looking into places that his mother can be moved
on a more permanent basis, he has learned that the process of installing a
new wood floor in his mother’s house will require moving her this
coming week or the following week into a hotel for two to three weeks.
This is because the removal of the old floor materials and installation of
the new flooring will be very loud and create large amounts of dust. His
mother has a chronic lung problem so there is no question that she will
have to move to a hotel during installation. News like this is very
difficult on his mother, particularly given her current fragile condition,
as she has lived in the house without interruption since 1960.
Accordingly, in addition to having to plan for this temporary move to a
hotel, his mother’s need for care increases.
V.
The undersigned counsel intends to file the appellate brief that is
currently due in 3rd Court of Appeals Case # 03-15-00511-CV by the
deadline of November 19, 2015. He requests additional time to file the
reply brief in the above styled and numbered case until November 25,
2015. He appreciates the consideration that the Court has given previous
requests for extension and regrets having to request another extension.
VI.
This Motion is not filed for delay only, but so that justice may be
done. The undersigned counsel has personal knowledge of the facts set
forth in this Motion. Appellant respectfully requests that this Court
extend the deadline for filing Appellant’s reply brief until November 25,
2015.
WHEREFORE, PREMISES CONSIDERED, Appellant Gerald
Kostecka respectfully requests that this Court grant his Second Amended
Motion for Extension of Time to File Appellant’s Reply Brief, and
requests that the Court grant such further and other relief to which
Appellant may be entitled.
Respectfully submitted,
LAW OFFICE OF STUART WHITLOW
By: /s/ Stuart Whitlow__________
Stuart Whitlow
Texas Bar No.: 21378050
1104 S. Mays, Suite 116
Round Rock, Texas 78664
Tel. (737) 346-1839
Fax (512) 218-9235
Email stuartrtwhitlowlaw@yahoo.com
Attorney for Appellant
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and
foregoing legal instrument was served upon Robert House, Clark &
Trevino, 1701 Directors Boulevard, Suite 920, Austin, Texas 78744, in
accordance with the Texas Rules of Civil Procedure on the 18th day of
November, 2015.
_/s/Stuart Whitlow_________________
Stuart Whitlow
CERTIFICATE OF CONFERENCE
This is to certify that Stuart Whitlow, counsel for Appellant Gerald
Kostecka, attempted to contact counsel for Appellee regarding this
Motion but has not been able to reach him yet.
_/s/Stuart Whitlow________
Stuart Whitlow