                                                                                       ACCEPTED
                                                                                   04-15-00525-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                             12/17/2015 4:30:07 PM
                                                                                    KEITH HOTTLE
                                                                                            CLERK

                             CASE NO.04-15-00525-CV

                                                                  FILED IN
                                IN THE                     4th COURT OF APPEALS
                                                            SAN ANTONIO, TEXAS
                        FOURTH COURT OF APPEALS            12/17/2015 4:30:07 PM
                          SAN ANTONIO,TEXAS                    KEITH E. HOTTLE
                                                                    Clerk


                         AMF BOWLING CENTERS,INC.
                                 Appellant

                                       v.

                   RIO VENTURES,LTD., AND RIO CLUB,LLC,
                                 Appellees


                      Appeal from Cause No. 2015cv03002
            In the County Court at Law No. 10 Bexar County, Texas
                       Honorable Jason Wolff,Presiding


           APPELLANT'S RESPONSE TO APPELLEE'S MOTION
                  TO STRIKE APPELLANT'S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellant AMF Bowling Centers, Inc. ("Appellant"), and

files its Response to Appellees' Motion to Strike Appellant's Brief. Appellee's

motion is unsupported by the Rules and case law and should accordingly be

overruled in all respects.




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      2165737v.1
      As .indicated in its Motion for Extension of Time to File Appellant's Brief

filed on December 8, 2015:(1) Appellant believes in good faith that it timely filed

its brief; (2) should this Court disagree, however, Appellant sought an extension

until December 2, 2015, to file its opening brief;(3) Appellant in fact filed its brief

on December 2nd; and (4) the requested extension is only two days. Appellant

provided sound reasons for the extension. Thus, Appellant would aslc that this

Court grant the requested two-day extension, which would also in turn render

Appellee's motion to strike moot.

      Under Texas Rule of Appellate Procedure 38.6(d) a motion to extend the

time to file a brief "may be filed before or after the date the brief is due." Thus,

Appellant filed its motion to extend timely as expressly provided by the Rules.

      Additionally,'granting Appellee's motion to strike would be improper under

Texas Rule of Appellate Procedure 38.8(a). Rule 38.8(a)(1) only authorizes

dismissing an appeal for failure to timely file an appellant's brief when: (1) an

appellant fails to reasonably explain the failure to file timely and(2)the appellee is

significantly injured by the failure to timely file. In this case, Appellee's motion

fails under both prongs of this test. As set forth in its Motion to Extend, Appellant

has provided a reasonable explanation for the purported two-day delay. Thus,

Appellant has met its burden under Rule 38.8. Appellant, on the other hand, has

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      2165737v.1
failed to meet its stringent burden to establish a significant iniury as a result of the

alleged two-day delay. Indeed, Appellee altogether ignores its obligation to

demonstrate significant injury from a mere two-day delay. At the risk of stating the

obvious, Appellee could not possibly have suffered any injury, much less a

significant injury, over a mere two days.

      Finally, case law demonstrates that the draconian result of dismissing an

appeal is strictly reserved for only truly exceptional cases. See, e.g., Avni v.

Newman,2014 WL 890925 (Tex. App.—Houston[1St Dist.] 2014)(after receiving

notice from the Court that the appeal was subject to dismissal for failure to file a

brief, appellant still failed to file a brief and failed to file a proper motion to

extend); .Ioyne~ v. East~idge, 2008 WL 163557 (Tex. App.—Fort Worth 2008)

(appellant failed to file brief or motion after receiving notice from the Court that

the brief was late and that it would dismiss the appeal if appellant failed to show

grounds for continuing the appeal); Liberty Mut. Ins. Co. v. Hodges, 2003 WL

21299637 (Tex. App.—Waco 2003)(same). The common thread in all such cases

is: (1) notice from the Court that the appeal was subject to dismissal and (2) the

failure ofthe appellant in those cases to file a brief or a proper motion. Neither one

ofthese situations exist in the case before this Court.




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      2165737v.1
       Rule 38.8(2) expressly authorizes this Court to "decline to dismiss the

appeal and give further direction to the case as it considers proper." Declining to

dismiss the appeal under Rule 38.8(2) is warranted by the circumstances here.

Appellant has filed its brief and believed in good faith that it had done so timely.

Accordingly, Appellant respectfully urges the Court to decline to dismiss this

appeal, overrule Appellee's motion, and grant Appellant's motion to extend time to

file its brief.

       WHEREFORE, PREMISES CONSIDERED, Appellant AlVIF Bowling

Centers, Inc. respectfully requests that the Court overrule Appellee's Motion to

Strike, extend the time for it to file its Appellant's Brief two days until December

2, 2015, and grant Appellant such other and further relief as to which it may be

entitled.




                                            4



       2165737v.1
                                     Respectfully Submitted,


                                     WILSON,ELSER,MOSKOWITZ,
                                      EDELMAN &DICKER,LLP

                                     lsl Lee L. Cameron J~.
                                     Lee L. Cameron, Jr.
                                     State Bar No.03675380
                                     lee.cameronjr@wilsonelser,com
                                     Leonard E. Hoffman,III
                                     State Bar No. 09789700
                                     Leonard.Hoffman@wilsonelser,com
                                     Krishna M. Oropeza
                                     State Bar No. 24037353
                                     Bank of America Plaza
                                     901 Main Street, Suite 4800
                                     Dallas, Texas 75202
                                     (214)698-8000
                                     (214)698-1101 (facsimile)

                                     ATTORNEYS FOR APPELLANT
                                     AMF BOWLING CENTERS,INC.


                        CERTIFICATE OF SERVICE

      I hereby certify that on this 17th day of December, 2015, a true and correct
copy ofthis Motion was forwarded to Appellees' counsel ofrecord.



                                     lsl Lee L. Cameron J~.
                                     Lee L. Cameron, Jr.




                                           s


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