                                                                                       ACCEPTED
                                                                                  04-14-00735-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                             1/15/2015 4:41:50 PM
                                                                                    KEITH HOTTLE
                                                                                           CLERK




                                                                   FILED IN
                                                            4th COURT OF APPEALS
                                                             SAN ANTONIO, TEXAS
                                                            1/15/2015 4:41:50 PM
                                                              KEITH E. HOTTLE
                                                                    Clerk

                          CAUSE NO. 04-14-00735-CV
          _____________________________________________________
                          IN THE COURT OF APPEALS
                                   FOR THE
                          FOURTH JUDICIAL DISTRICT
                             SAN ANTONIO, TEXAS


                          Brian C. Simcoe, Appellant
                                      v.
            Thomas Christopher and Catrina Christopher, Appellees
          _____________________________________________________
               APPEAL FROM THE 45TH JUDICIAL DISTRICT COURT
                            BEXAR COUNTY, TEXAS
      HONORABLE JUDGE BARBARA HANSON NELLERMOE, JUDGE PRESIDING


           APPELLEES’ RESPONSE TO MOTION FOR RECONSIDERATION
                        AND REINSTATEMENT OF APPEAL



James A. Rodriguez
Law Office of James A. Rodriguez
SBN: 24057667
540 S. St. Mary’s Street
San Antonio, Texas 78205
Phone: (210) 581-3990
Fax: (210) 224-8214
Email: james@rodriguezlaw.us
Attorney for Appellees
TO THE HONORABLE COURT OF APPEALS:

1.     Appellees Thomas and Christina Christopher, in answer to the Court’s request,

file this Response to Appellant’s Motion for Reconsideration and Motion to Reinstate

Appeal.

2.     Appellant Brian Simcoe failed to timely file a notice of appeal in this case but

filed the notice within the fifteen-day grace period provided by the Rules. See TEX. R.

APP. P. 26.1; 26.3. The Court then required Appellant to provide reasonable explanation

for his failure to timely file the notice of appeal, citing Verburgt v. Dorner, 959 S.W.2d

615, 617 (Tex. 1997) and TEX. R. APP. P. 26.3; 10.5(b)(1)(C).

3.     Appellant responded that he had believed a motion for new trial would

successfully maintain the case in the trial court and that he had delayed filing his notice

of appeal until after a ruling on that motion and because he had been considering the

financial impact of filing an appeal.

4.     On November 26, 2014, this Court dismissed this appeal and found that

Appellant’s stated reasons for his failure to timely file his notice of appeal did not

constitute a reasonable explanation for such failure. Specifically, the Court found that

Appellant’s delay was deliberate and not the result of accident or mistake.

5.     On December 1, 2014, Appellant filed his Motion to Reconsider and Reinstate the

appeal, stating for the first time that counsel for Appellant had miscalculated the appellate

deadlines, which the Court in Dorner had ruled was a reasonable explanation. See

Dorner, 959 S.W.2d at 617.

6.     Appellees assert that this Motion is an attempt by Appellant to change the facts to

suit necessity by tracking the reasoning of Dorner. Appellant had full opportunity to state
the facts that would have supported an argument of accident or mistake in his initial

response to the Court.

7.     Moreover, Appellant’s docketing statement requests that the Court supersede or

stay the execution of the judgment rendered by the Court below, but Appellant has to date

failed to file a supersedeas bond or other deposit with the Clerk of the Court. See TEX. R.

APP. P. 24. Appellee cites this as additional evidence of Appellant’s lack of diligence in

perfecting and prosecuting this appeal.

8.     Wherefore, premises considered, Appellants respectfully request that the Court

affirm its earlier Order and dismiss this appeal for lack of jurisdiction.

9.     In the alternative, should the Court reverse its prior Order, Appellants respectfully

request that the Court stay this appeal and order Appellant to file a supersedeas bond or

other security with the clerk of the Court below by a date certain and, should Appellant

fail to file such bond or security by that date, order this appeal dismissed.



                                               Respectfully Submitted,



                                               ______________________________
                                               James A. Rodriguez
                                               State Bar No. 24057667
                                               540 S. St. Mary’s Street
                                               San Antonio, Texas 78205
                                               Phone: (210) 581-3990
                                               Fax: (210) 224-8214
                                               Email: james@rodriguezlaw.us
                                               Attorney for Appellees
                                               Thomas and Catrina Christopher
                           CERTIFICATE OF SERVICE

       I certify that a true copy of the foregoing Response to Motion for Reconsideration

and Reinstatement of Appeal was served on each party or that party’s lead counsel in

accord with the Texas Rules of Appellate Procedure on January 15, 2015, as follows:



Party:                Brian C. Simcoe
Lead Attorney:        Sarah Anne Lishman
Address of Service:   310 S. St. Mary’s St., Suite 845
                      San Antonio, Texas 78205
Method of Service:    Fax to (210) 308-5669
Date of Service:      January 15, 2015


Party:                Adria Joy Simcoe, Pro Se
Address of Service:   115 Osprey Haven
                      San Antonio, Texas 78253
Method of service:    Email to adriasimcoe@yahoo.com, per request
Date of Service:      January 15, 2015



                                            ______________________________
                                            James A. Rodriguez
                                            State Bar No. 24057667
                                            Attorney for Appellees
                                            Thomas and Catrina Christopher
