                                                                                                                        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
