           FILED IN
    4th COURT OF APPEALS
     SAN ANTONIO, TEXAS
    11/19/2015 3:54:26 PM
        KEITH E. HOTTLE
             Clerk




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FILED
6/20/2014 2:43:57 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Bonnie Banks




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FILED
5/1/2015 12:53:55 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Jode Sanchez


                                                    CAUSE NO. 2013-CI-10278

                     DAVID GILLESPIE AND                       §      IN THE DISTRICT COURT
                     MICHAEL O’BRIEN                           §
                                                               §
                                                               §
                     v.                                        §      408th JUDICIAL DISTRICT
                                                               §
                                                               §
                     A. L. HERNDEN AND                         §
                     FREDERICK R. ZLOTUCHA                     §      BEXAR COUNTY, TEXAS

                                  MOTION TO RECONSIDER SUMMARY JUDGMENT
                                          AND IN THE ALTERNATIVE
                                           MOTION FOR NEW TRIAL

                     TO THE HONORABLE JUDGE OF SAID COURT:

                              DAVID GILLESPIE and MICHAEL O’BRIEN, Plaintiffs, file this motion to

                     reconsider summary judgment, and in the alternative motion for new trial, pursuant

                     to TEX. R. CIV. P. 320 in support thereof show as follows:

                                    I. BACKGROUND FACTS OF THIS PROCEEDING

                              This is a breach of fiduciary duty, DTPA and declaratory judgment action,

                     brought to review the conduct of surrounding the applicability, legality and

                     violations of fiduciary duty between lawyers and clients in the context of an oil and

                     gas contingency fee contract. A full and final judgment was rendered against the

                     Plaintiffs on April 2, 2015. The trial court granted summary judgment against

                     Plaintiffs, dismissing the entirety of their case and denying their Motion for

                     Rehearing of their Motion for Summary Judgment denied by the court.




                                                               1
              1026
                                II. PROCEDURAL TIMELINE

              The Order sought to be appealed from was finalized on April 2, 2015, and

       thirty days (30) have not expired from its entry. Plaintiffs once again seek redress

       in regards to the relationship with their former attorneys who acted outside of the

       bounds of professional conduct and in contravention of their client’s interest. Old

       Republic Ins. Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993). This motion is in

       accord with the Rule 320 of the TEXAS RULES OF CIVIL PROCEDURE.

          III.   AS A MATTER OF LAW A.L.HERNDEN                               BREACHED
                 FIDUCIARY DUTIES OWED TO PLAINTIFFS

              David Gillespie and Michael O’Brien hired A.L.Hernden to be their

       attorney in a “dispute regarding an alleged partnership involving Joe H. Amberson

       and the leasing of certain oil and gas interests in McMullen County Texas.” Mr.

       Hernden had a fiduciary relationship with both David Gillespie and Michael

       O’Brien during the entirety of his representation of them.

              The Supreme Court of Texas has explained the consequences of this

       fiduciary relationship which exist between any lawyer, including Mr. Hernden,

       and his clients, as follows: “In Texas, we hold attorneys to the highest standards

       of ethical conduct in their dealings with their clients. The duty is highest when the

       attorney contracts with his or her client or otherwise takes a position adverse to his

       or her clients’ interest. As Justice Cardozo observed, ‘[a fiduciary] is held to

       something stricter than the morals of the marketplace. Not honesty alone, but the

       punctilio of an honor the most sensitive, is then the standard of behavior.’



                                                 2
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       Accordingly, a lawyer must conduct his or her business with inveterate honesty

       and loyalty, always keeping the clients’ best interest in mind.” Hoover Slovacek

       LLP v. Walton, 206 S.W.3d 557, 560 (Tex. 2006), citing, Lopez v. Munoz,

       Hockema & Reed, L.L.P., 22 S.W.3d 857, 868 (Tex. 2000). Similarly, in Anglo-

       Dutch Petroleum International, Inc. v. Greenberg Peden, P.C., 952 S.W.3d 445,

       450 (Tex. 2011), the Supreme Court of Texas held that “Because a lawyer’s

       fiduciary duty to a client covers contract negotiations between them, such

       contracts are closely scrutinized. Part of the lawyer’s duty is to inform the client

       of all material facts. And so that this responsibility is not a mere and meaningless

       formality, the lawyer must be clear.”

              Among the things which a lawyer may do or fail to do, which constitute

       breaches of his fiduciary duties to his clients are failing to disclose a conflict of

       interest, improperly benefiting from representation of a client, and engaging in

       self-dealing. Cases recognizing these breaches of fiduciary duty include Brown v.

       Green, 2009 W.L. 4573451 at *4 (Tex. App. – Houston [14th Dist.] 2009, no pet.),

       and Walker v. Morgan, 2009 W.L. 3763779 at *2–*3 (Tex. App. – Beaumont

       2009, no pet.). Mr. Hernden breached his fiduciary duties to both David Gillespie

       and Michael O’Brien.

              Purportedly in consideration of Mr. Hernden’s representation of David

       Gillespie and Michael O’Brien, the written contract:

              sells, transfers and assigns to the said attorney a FIFTY PER CENT
              (sic)(50%) interest, in and to this matter, claim, and any property
              obtained through such demand, and/or case, and any compromise,


                                                3
1028
             settlements, judgment, or recovery of any sort whatsoever and
             howsoever acquired relating thereto, that Client may recover or be
             entitled to by reason of said matter, claim, demand, and/or case.

       (italics added). As a matter of law, this contract is unreasonable, unconscionable,

       and constitutes a breach of Mr. Hernden’s fiduciary duty of full disclosure and his

       duty of loyalty to his clients. Clients such as David Gillespie and Michael O’Brien

       are very unlikely to know that an attorney is “prohibited from acquiring a

       proprietary interest in the cause of action or subject matter of the litigation the

       lawyer is conducting for a client.” TEXAS DISCIPLINARY RULE OF PROFESSIONAL

       CONDUCT 1.08(h). Additionally, Mr. Gillespie and Mr. O’Brien are very unlikely

       to know that a lawyer “shall not enter into a business transaction with the client

       unless:

              (1) the transaction and terms on which the lawyer acquires the
              interest are fair and reasonable to the client and are fully disclosed in
              a manner which can be reasonably understood by the client;

              (2) the client is given a reasonable opportunity to seek the advice of
              independent counsel in the transaction; and

              (3) the client consents in writing thereto.”

       TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08(a).

             Mr. Gillespie’s and Mr. O’Brien’s contracts with Mr. Hernden are not

       contingent fee contracts permitted by TEXAS DISCIPLINARY RULE OF

       PROFESSIONAL CONDUCT 1.04. The contracts purport to “sell[], transfer and

       assign” to Mr. Hernden a fifty percent interest for services rendered and to be

       rendered. However there is no information on what representation had been



                                                 4
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       rendered or was to be rendered. But more importantly, there is no information as

       to what constitutes a fifty percent interest in a “dispute regarding an alleged

       partnership involving Joe H. Amberson and the leasing of certain oil and gas

       interests in McMullen County Texas.” Based upon the contract alone, there is no

       way to understand the work to be done, define the method by which the ownership

       interest is to be determined, or even to establish what are the expenses to be

       deducted from the recovery.

                Even if this were a valid contingent fee contract, the client cannot make a

       meaningful, well considered, or intelligent decision regarding whether the fee

       agreement is appropriate. In his February 24, 2014 deposition, when asked about

       the value of the fee being charged Mr. Hernden testifies, “[i]n my opinion what it

       was worth? The day we got it, it was probably worth, at the most, $3,000 a mineral

       acre. That makes it $120,000.”1 February 24, 2014 Deposition of A.L.Hernden,

       10:25-11:2. However, when asked about the value of the fee contract at the

       conclusion of the representation Mr. Hernden testifies very differently:

                A.       Well, I don’t really know what it’s worth today because,
                number one, the production seems to have gone way down. I mean,
                you’ve got to know, Eagle Ford wells generally – and this is just a
                general rule, because it’s not a set rule. They produce 82 percent of
                their oil in the first year. So, the first year of a lease, you get a
                bunch of money. Then it goes down in the last 30 years. But at the
                last, it will be doing two or three barrels a day. So, right now, the
                last check we got was $5,000, so I don’t know. Maybe it’s going
                down, nosediving. I have no idea. But that’s a general rule, is 82
                percent of the oil from an Eagle Ford well comes the first year.
       1
          This is also to say that on the day the contracts were signed, that Mr. Hernden had agreed to act as Mr.
       Gillespie’s and Mr. O’Brien’s attorney and provide representation in exchange for a fifty percent interest in
       a claim worth no more than $120,000. February 24, 2014 Deposition of A.L.Hernden, 11:10-12.


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1030
             Q.     So you don’t know?

             A.     I really don’t know. If I had to put a pencil to it, I would – I
             would say that it’s not worth nearly what you think it is, because –
             because of it being Eagle Ford, okay? But I – I could probably
             figure out – I could take you to some experts and let them decide
             what it’s worth.

       February 24, 2014 Deposition of A.L.Hernden, 11:14-12:8.

             If at the present time Mr. Hernden cannot calculate the value of his interest,

       there is no possible way that he could be said to have complied with TEXAS

       DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08. By failing to comply with

       TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08, Mr. Hernden

       breached the fiduciary duty which he owed to Mr. Gillespie and Mr. O’Brien. As

       such, his contract with Mr. Gillespie and Mr. O’Brien is voidable. TEX. GOV’T

       CODE § 82.065.

             Moreover, through his testimony, Mr. Hernden admits that he spent no

       more than 100 hours on this matter. February 24, 2014 Deposition of

       A.L.Hernden, 25:20. Yet for this 100 hours worked, he has made $225,000 and

       counting. February 24, 2014 Deposition of A.L.Hernden, 34:14-24. In testimony,

       Mr. Hernden describes his contract like this: “Yeah, I got a Lotto ticket. I won a

       Lotto ticket for 100 hours worked, okay?” February 24, 2014 Deposition of

       A.L.Hernden, 33:20-21. There is no possible way that Mr. Hernden could be said

       to have complied with TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT

       1.04. By failing to comply with TEXAS DISCIPLINARY RULE OF PROFESSIONAL



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1031
       CONDUCT 1.04, Mr. Hernden breached the fiduciary duty which he owed to Mr.

       Gillespie and Mr. O’Brien. Again, this makes his contract with Mr. Gillespie and

       Mr. O’Brien voidable. TEX. GOV’T CODE § 82.065.2

               Mr. Hernden’s breaches of fiduciary duty were clearly prejudicial and a

       cause of damage to Mr. Gillespie and Mr. O’Brien. Far more than the amount he

       originally contemplated, fifty percent of a claim worth no more than $120,000,

       Mr. Hernden claimed an ownership interest of half the partnership attributable to

       Mr. Gillespie and Mr. O’Brien. The breach of that fiduciary duty resulted in an

       improper benefit for Mr. Hernden because he received not a fee, but an ownership

       interest.

               The Supreme Court of Texas has repeatedly condemned lawyers who

       attempt to charge a contingent fee which exceeds the amount of money recovered

       by their clients. The cases on this are Levine v. Bayne, Snell & Krause, Ltd., 40

       S.W.3d 92, 95 (Tex. 2001), and Hoover Slovacek, L.L.P. v. Walton, 206 S.W.3d

       557, 563 (Tex. 2006). Charging a contingent fee which exceeds the client’s

       recovery is an unconscionable fee and Mr. Hernden’s contracts with Mr. Gillespie

       and Mr. O’Brien does so as a matter of law. Mr. Hernden’s contracts claim a fifty

       percent interest, but charge all of the undefined costs and expenses of litigation to

       the clients. It is a fifty fifty split, but the client bears all the costs and expenses. As

       2
        Although the Disciplinary Rules do not define standards of civil liability for attorneys, the Texas Supreme
       Court states that they are persuasive authority outside the context of disciplinary proceedings, and are
       applied rules of decision in disputes concerning attorney's fees. Hoover Slovacek, L.L.P. v. Walton, 206
       S.W.3d 557, 562 (Tex. 2006); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 205 (Tex.
       2002); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Arthur Andersen & Co. v. Perry Equip. Corp.,
       945 S.W.2d 812, 818 (Tex. 1997).


                                                            7
1032
       a matter of simple mathematics, Mr. Hernden’s contracts with Mr. Gillespie and

       Mr. O’Brien attempt to charge a contingent fee which exceeds the amount of

       money recovered by Mr. Gillespie and Mr. O’Brien. This is a violation of Mr.

       Hernden’s fiduciary duty of loyalty and constituted self-dealing and an improper

       benefit to Mr. Hernden from his representation of Mr. Gillespie and Mr. O’Brien.

          IV.     AS A MATTER OF LAW MR. ZLOTUCHA HAD NO RIGHT TO
                  REPRESENT PLAINTIFFS

                At some point in September 2010, Fredrick R Zlotucha undertook

       representation of Mr. Gillespie and Mr. O’Brien. Mr. Zlotucha has testified that he

       did not have a written agreement with either Mr. Gillespie or Mr. O’Brien.

       February 24, 2014 Deposition of F.R.Zlotucha, 12:21-25. Eventually, Mr.

       Zlotucha claimed to be entitled to one half of the fifty percent claimed by Mr.

       Hernden.

                TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08 could not be

       more clear regarding the requirement of the written consent of the client prior to

       undertaking representation on a contingent fee like that argued in this case.

       Specifically, TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08(d)

       requires all contingent fee contracts to be in writing.      Additionally, TEXAS

       DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08(f) requires written consent

       of the client for all fee divisions between attorneys. By failing to comply with

       TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08, Both Mr. Hernden




                                               8
1033
       and Mr. Zlotucha breached the fiduciary duty which they owed to Mr. Gillespie

       and Mr. O’Brien.

               Mr. Zlotucha tends to want to argue that the signatures of Mr. Gillespie and

       Mr. O’Brien on the “disbursement agreement,” “payout,” or “settlement sheet”

       constitute a consent to his representation. This is untrue. TEXAS DISCIPLINARY

       RULE OF PROFESSIONAL CONDUCT 1.08(f)(2) requires such consent to be prior to

       the association or referral. By Mr. Zlotucha’s own testimony, this was not the case

       here. Deposition of F.R.Zlotucha, 12:21-25. Moreover, by relying on the facially

       unreasonable and unconscionable contract between Mr. Hernden, and Mr.

       Gillespie and Mr. O’Brien, Mr. Zlotucha engaged in self dealing, and violated his

       fiduciary duty of full disclosure and his duty of loyalty to his clients. Levine v.

       Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95 (Tex. 2001); Hoover Slovacek,

       L.L.P. v. Walton, 206 S.W.3d 557, 563 (Tex. 2006).

               Under Texas law, a contingent fee contract for legal services must be in

       writing and signed by both the attorney and client. TEX. GOV’T CODE § 82.065.

       Without a written document Mr. Zlotucha cannot claim any entitlement to the

       property of Mr. Gillespie and Mr. O’Brien. For Mr. Hernden and Mr. Zlotucha to

       claim that property is a breach of fiduciary duty.

          V.      QUESTIONS OF FACT PRECLUDE DEFENDANTS’ SUMMARY
                  JUDGMENT

       The Texas Supreme Court has stated:

               whether a contract, including a fee agreement between attorney and
               client, is contrary to public policy and unconscionable at the time it


                                                 9
1034
              is formed is a question of law. See, e.g., TEX. BUS. & COM. CODE
              § 2.302 (courts may refuse to enforce contracts determined to be
              unconscionable as a matter of law); SkiRiver Dev., Inc. v. McCalla,
              167 S.W.3d 121, 136 (Tex. App.--Waco 2005, pet. denied) ("The
              ultimate question of unconscionability of a contract is one of law, to
              be decided by the court."); Pony Express Courier Corp. v. Morris,
              921 S.W.2d 817, 821 (Tex. App.--San Antonio 1996, no writ)
              (distinguishing    procedural     and      substantive   aspects    of
              unconscionability).

       Hoover , 206 S.W.3d at 562.

              However, in this case, there are fundamental questions as to the value of the

       services rendered, the value of the fee purportedly agreed to, and the

       circumstances surrounding its formation. By not considering these fundamental

       factual questions, a court is powerless in examining the ultimate legal question.

              The term "unconscionability" describes a contract that is unfair because of

       its overall one-sidedness or the gross one-sidedness of one of its terms. Currey v.

       Lone Star Steel, Co., 676 S.W.2d 205, 213 (Tex. App.--Fort Worth 1984, no

       writ); see also TEX. BUS. & COM. CODE ANN. § 17.45(5) (Vernon Supp. 1996)

       (describing unconscionable actions under the Texas Deceptive Trade Practices--

       Consumer Protection Act); TEX. BUS. & COM. CODE ANN. § 2.302 (Vernon

       1994) (discussing unconscionable contracts under the Uniform Commercial

       Code). "Unconscionability" has no precise legal definition because it is not a

       concept but a determination to be made in light of a variety of facts. Southwestern

       Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 498 (Tex. 1991)(Gonzalez, J.,

       concurring) (citing 1 J. WHITE & R. SUMMERS, UNIFORM COMMERCIAL

       CODE § 4-3 at 203 (3d ed. 1988)); see also RESTATEMENT (SECOND) OF


                                                10
1035
       CONTRACTS § 208, comment a(1979) (including "weaknesses in the contracting

       process" and related public policy concerns).

              Although no single formula exists, proof of unconscionability begins with

       broad factual questions: (1) How did the parties arrive at the terms in controversy;

       and (2) Are there legitimate commercial reasons justifying the inclusion of the

       terms? DeLanney, 809 S.W.2d at 498-99(Gonzalez, J., concurring). The first

       question, often described as the procedural aspect of unconscionability, is

       concerned with assent and focuses on the facts surrounding the bargaining

       process. Id. at 499; Tri-Continental Leasing Corp., 710 S.W.2d at 609. The second

       question, often described as the substantive aspect of unconscionability, is

       concerned with the fairness of the resulting agreement. DeLanney, 809 S.W.2d at

       499 (Gonzalez, J., concurring); Wade v. Austin, 524 S.W.2d 79, 86 (Tex. Civ.

       App.--Texarkana 1975, no writ).

              Unconscionability    involves    both    questions   of    law   and    fact.

       Pony Express Courier, 921 S.W.2d at 820. In short, unconscionability must be

       determined on a case-by-case basis. Pearce v. Pearce, 824 S.W.2d 195, 199 (Tex.

       App.--El Paso 1991, writ denied). As the Texas Supreme Court concludes

       “whether a particular fee amount or contingency percentage charged by the

       attorney is unconscionable under all relevant circumstances of the

       representation is an issue for the factfinder. Hoover , 206 S.W.3d at 561-62,

       citing Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 233 (Tex. App.--

       Houston [14th Dist.] 2000, no pet.) (concluding that the evidence was sufficient to


                                               11
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       support a finding that a contingent fee equaling more than half of the client's

       recovery was unconscionable).

              Lawyers have a duty, at the outset of the representation, to "inform a client

       of the basis or rate of the fee" and "the contract's implications for the client."

       Levine, 40 S.W.3d at 96 (citing RESTATEMENT (THIRD) OF THE LAW GOVERNING

       LAWYERS §§ 38(1), 18). "To impose the obligation of clarifying attorney client

       contracts upon the attorney 'is entirely reasonable, both because of [the attorney's]

       greater knowledge and experience with respect to fee arrangements and because of

       the trust [the] client has placed in [the attorney].'" Levine, 40 S.W.3d at 95

       (quoting Cardenas v. Ramsey County, 322 N.W.2d 191, 194 (Minn. 1982))

       (alterations in original). For these reasons, the "failure of the lawyer to give at the

       outset a clear and accurate explanation of how a fee was to be calculated" weighs

       in favor of a conclusion that the fee is unconscionable. TEXAS DISCIPLINARY RULE

       OF PROFESSIONAL CONDUCT       1.04 cmt. 8.

              On its face, Mr. Hernden’s contract is unconscionable and violates the

       fiduciary duties owed to Mr. Gillespie and Mr. O’Brien by:

                     1)     acquiring a proprietary interest in the cause of action
              or subject matter of the litigation;

                    2)    entering into a business transaction with the clients
              without any way to comply with TEXAS DISCIPLINARY RULE OF
              PROFESSIONAL CONDUCT 1.08(a);

                    3)    being impermissibly vague regarding the work to be
              done, the method by which the ownership interest is to be
              determined, or what are the expenses to be deducted from a
              recovery;


                                                 12
1037
                     4)      charging an unreasonable fee; and,

                    5)     mathematically seeking a greater recovery than that
              awarded to the client.

       Likewise, the fee taken by Mr. Zlotucha cannot be supported because he breached

       his fiduciary duties by:

              1)     attempting to collect a contingent fee where there is no
              written consent of the client which comports to the requirements of
              TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.08;

              2)     seeking a fee that is unreasonable; and

              3)      self dealing in claiming an interest acquired as a result of a
              facially unconscionable contract.

       Each of these are factual issues making summary judgment in favor of Mr.

       Hernden and Mr. Zlotucha improper.

              WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that this Court

       grant this motion to reconsider summary judgment, and in the alternative motion for

       new trial, and such other and further relief, both general or special, to which they

       shows theirselves justly entitled.

                                                        Respectfully submitted,
                                                        GENE TOSCANO, INC.
                                                        846 Culebra, Ste. 104
                                                        San Antonio, TX 78201
                                                        TEL: (210) 732-6091
                                                        FAX: (210) 735-4167

                                                        By /s/ Andrew E. Toscano
                                                        ANDREW E. TOSCANO
                                                        State Bar No. 00786832
                                                        ATTORNEYS FOR
                                                        PLAINTIFFS


                                                13
1038
                                CERTIFICATE OF SERVICE

             I hereby certify that a true and correct copy of the foregoing instrument has
       been mailed to the all defense attorneys of record on this 1st day of May, 2015:

             Mr. Richard A. Sparr, Jr.
             1313 N. E. Loop 410, Suite 100
             San Antonio, Texas, 78209
             SENT BY FACSIMILE TRANSMISSION
             TO: (210) 828-5444

             Mr. Frederick R. Zlotucha
             222 Main Plaza East
             San Antonio, Texas 78205
             SENT BY FACSIMILE TRANSMISSION
             TO: (210) 227-8316


                                                       /s/ Andrew E. Toscano
                                                       ANDREW E. TOSCANO




                                               14
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1045
1046
1047
1048
1049
1050
1051
1052
1053
FILED
7/3/2015 10:29:15 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez


                                                CAUSE NO. 2013-CI-10278

                    DAVID GILLESPIE AND                         §     IN THE DISTRICT COURT
                    MICHAEL O’BRIEN                             §
                                                                §
                    v.                                          §     408th JUDICIAL DISTRICT
                                                                §
                    A. L. HERNDEN AND                           §
                    FREDERICK R. ZLOTUCHA                       §     BEXAR COUNTY, TEXAS

                                                    NOTICE OF APPEAL

                    TO THE HONORABLE JUDGE OF SAID COURT:

                           WHEREAS ON April 2, 2015, the Honorable Cathleen M. Stryker of the 224th

                    Judicial District Bexar Court, entered a Final Judgment in this cause. Plaintiff, DAVID

                    GILLESPIE wishes to appeal from said Final Judgment to the Court of Appeals for the

                    Fourth District of Texas in San Antonio, Texas.


                                                                      RESPECTFULLY SUBMITTED,

                                                                      GENE TOSCANO, INC.,

                                                                      BY: /s/ Andrew E. Toscano
                                                                      ANDREW E. TOSCANO
                                                                      SBN: 00786832
                                                                      846 Culebra Road, Suite 104
                                                                      San Antonio, Texas 78201
                                                                      210/732-6091 tel
                                                                      210/735-4167 fax
                                                                      ATTORNEY PLAINTIFF




             1043
                                    CERTIFICATE OF SERVICE

               I hereby certify that a true and correct copy of the above and foregoing has been
       sent by hand delivery to the following counsel of record on this 3rd day of July, 2015:

              Mr. Richard A. Sparr, Jr.
              1313 N. E. Loop 410, Suite 100
              San Antonio, Texas, 78209
              SENT BY FACSIMILE TRANSMISSION
              TO: (210) 828-5444

              Mr. Frederick R. Zlotucha
              222 Main Plaza East
              San Antonio, Texas 78205
              SENT BY FACSIMILE TRANSMISSION
              TO: (210) 227-8316

              FOURTH COURT OF APPEALS
              Cardena-Reeves Justice Center
              300 Dolorosa Ste. 3200
              San Antonio, Texas 78205
              210-355-2762- fax


                                                          /s/ Andrew E. Toscano
                                                         ANDREW E. TOSCANO




1044
                                                                                                            FILE COPY




                                             COURT OF APPEALS
SANDEE BRYAN MARION                        FOURTH COURT OF APPEALS DISTRICT                                 KEITH E. HOTTLE
  CHIEF JUSTICE                              CADENA-REEVES JUSTICE CENTER                                   CLERK OF COURT
KAREN ANGELINI                                  300 DOLOROSA, SUITE 3200
MARIALYN BARNARD                              SAN ANTONIO, TEXAS 78205-3037
REBECA C. MARTINEZ                          WWW.TXCOURTS.GOV/4THCOA.ASPX                                       TELEPHONE
PATRICIA O. ALVAREZ                                                                                           (210) 335-2635
LUZ ELENA D. CHAPA
JASON PULLIAM                                                                                                FACSIMILE NO.
  JUSTICES                                                                                                    (210) 335-2762
                                                         July 6, 2015
         Richard A. Sparr Jr.                                       Andrew E. Toscano
         Sparr & Geerdes                                            Gene Toscano Inc
         1313 NE Loop 410 Ste 100                                   846 Culebra Rd Ste 104
         San Antonio, TX 78209-1529                                 San Antonio, TX 78201-6244
         * DELIVERED VIA E-MAIL *                                   * DELIVERED VIA E-MAIL *

         Frederick R. Zlotucha
         Law Office of Frederick R. Zlotucha
         222 E Main Plz
         San Antonio, TX 78205-2717
         * DELIVERED VIA E-MAIL *
         RE:     Court of Appeals Number:       04-15-00405-CV
                 Trial Court Case Number:       2013-CI-10278
         Style: David Gillespie and Michael O'Brien
                 v.
                 A.L. Hernden and Frederick R. Zlotucha

                  The copy of appellant's notice of appeal in the above styled and numbered cause has this date
         been filed or conditionally filed.
                  The fee for filing appeals in this court from the district or county is $195.00. The fee must be
         paid at the time the notice of appeal is filed. In addition, this court charges an additional fee of $10.00 for
         the filing of any motion. Any delay in remitting a filing fee will delay the processing of your appeal and
         the court’s ruling on pending motions. See TEX. R. APP. P. 5. Our records do not reflect payment of the
         $195.00 fee. Please remit the filing fee no later than July 16, 2015. If the fee is not paid within the time
         allotted, the matter will be referred to the court, and the appeal is subject to being stricken by the court.
         See TEX. R. APP. P. 5.
                  In accordance with TEX. R. APP. P. 32 and 4TH TEX. APP. (SAN ANTONIO) LOC. R. 5.2., a
         docketing statement must be filed with the notice of appeal. Our records do not contain a docketing
         statement for this appeal. Please ensure that a docketing statement is immediately filed to ensure prompt
         processing of the appeal. The Appellant’s docketing statement is due from attorney, Andrew E. Toscano.
         The docketing statement is to be filed with this court by July 16, 2015.
                  The appellate record generally must be filed in this court within 120 days after the date of
         judgment is signed if any party timely files: (1) a motion for new trial; (2) a motion to modify the
         judgment; (3) a motion to reinstate under TEXAS RULES OF CIVIL PROCEDURE 165a; or (4) a request for
         findings of fact and conclusions of law if required or if not required could properly be considered by the
         appellate court. See TEX. R. APP. P. 35.1.
                                                                              Very truly yours,
                                                                              KEITH E. HOTTLE, CLERK

                                                                             _____________________________
                                                                             Luz Estrada
                                                                             Deputy Clerk, Ext. 53219
         cc:     Honorable Cathleen M. Stryker
                 Donna Kay McKinney (DELIVERED VIA E-MAIL)
                              Fourth Court of Appeals
                                    San Antonio, Texas
                                           July 28, 2015

                                        No. 04-15-00405-CV

                             David GILLESPIE and Michael O'Brien,
                                         Appellants

                                                 v.

                            A.L. HERNDEN and Frederick R. Zlotucha,
                                        Appellees

                     From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2013-CI-10278
                          Honorable Cathleen M. Stryker, Judge Presiding


                                          ORDER
        To date, appellant David Gillespie has failed to pay the applicable filing fee in this
appeal. Texas Rule of Appellate Procedure 5 provides,

       A party who is not excused by statute or these rules from paying costs must pay—
       at the time an item is presented for filing—whatever fees are required by statute
       or Supreme Court order. The appellate court may enforce this rule by any order
       that is just.

TEX. R. APP. P. 5.

        We, therefore, ORDER appellant, within ten (10) days of the date of this order, to either
(1) pay the applicable filing fee in this appeal or (2) provide written proof to this court that he is
excused by statute or these rules from paying the filing fee. See TEX. R. APP. P. 20.1 (providing
that party who qualifies as indigent under Rule 20 may proceed without advance payment of
costs). If appellant fails to respond within the time provided, this appeal will be dismissed. See
TEX. R. APP. P. 42.3(c).


                                                      _________________________________
                                                      Karen Angelini, Justice
       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 28th day of July, 2015.



                                              ___________________________________
                                              Keith E. Hottle
                                              Clerk of Court
                                                                               A.L. s




                            Fourth Court of Appeals
                                  San Antonio, Texas
                                      September 15, 2015

                                      No. 04-15-00405-CV

                                      David GILLESPIE,
                                           Appellant

                                                v.

                         A.L. HERNDEN and Frederick R. Zlotoucha,
                                      Appellees

                  From the 408th Judicial District Court, Bexar County, Texas
                               Trial Court No. 2013-CI-10278
                       Honorable Cathleen M. Stryker, Judge Presiding

                                         ORDER
       The trial court signed a final judgment on April 2, 2015. Appellant David Gillespie filed
a timely motion for new trial on May 1, 2015. Therefore, the notice of appeal was due to be filed
on July 1, 2015. See TEX. R. APP. P. 26.1(a). However, appellant filed a notice of appeal on July
3, 2015. A motion for extension of time to file the notice of appeal was due on July 16, 2015. See
TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace
period allowed by Rule 26.3, he did not file a motion for extension of time.

         A motion for extension of time is necessarily implied when an appellant, acting in good
faith, files a notice of appeal beyond the time allowed by Texas Rule of Appellate Procedure
26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for
extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the
predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing
to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).

       We, therefore, ORDER appellant to file, within fifteen days from the date of this order, a
response presenting a reasonable explanation for failing to file the notice of appeal in a timely
manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See
TEX. R. APP. P. 42.3(c).


                                                     _________________________________
                                                     Karen Angelini, Justice
       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 15th day of September, 2015.



                                              ___________________________________
                                              Keith E. Hottle
                                              Clerk of Court
                                                                                           ACCEPTED
                                                                                        04-15-00405-cv
                                                                           FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                 9/30/2015 12:52:27 PM
                                                                                        KEITH HOTTLE
                                                                                                CLERK



                             NO. 04-15-00405-CV
                                                                       FILED IN
                           In the Court of Appeals              4th COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS
                                   for the                     09/30/2015 12:52:27 PM
                                Fourth District                   KEITH E. HOTTLE
                                                                        Clerk
                             San Antonio, Texas
                                DAVID GILLESPIE,
                                          Appellant
                                        V.

                                 A.L. HERNDEN,
                                          Appellee

     On Appeal from the 408th Judicial District Court of Bexar County, Texas
        (Cause No. 2013-CI-10278, Hon. Cathleen M. Stryker, Presiding)

            APPELLEE’S MOTION FOR EXTENSION OF TIME

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      1.    Appellant, David Gillespie, herewith files his response to this Court’s

Order of September 15, 2015.

      2.    Appellant filed its Notice of Appeal on July 3, 2015, two days after

its due date of July 1, 2015. The Clerk’s record was filed on September 9, 2015.

3.          Appellant advises the Court that due to a calendar error caused by the

preparation of a response to Motion for Summary Judgment in the case styled

Civil Action No. 5:14-CV-00733; John Gonzales vs. Robles and Sons, Inc.,

Robles Service Group, LLC, Vaughn Construction Company, Sunbelt Rentals
Industrial Services, LLC and JLG Industries, Inc.; In the United States District

Court Western District of Texas San Antonio Division, the hearing on Motion for

Rulings in the case styled Cause No. 2012-CI-09903; John Joseph Carreon and

John A. Polito vs. Greater San Antonio Transportation Company d/b/a Yellow

Cab. in preparation for trial on July 6, 2015, and the final preparation of the

documents in the case styled Cause No. 5:14-CV-00149; Candelario V. Gonzalez,

et al. v. Cooper Tire and Rubber Company, et al, the Notice of Appeal was not

filed timely. Undersigned counsel because of his schedule, inadvertently failed to

file the Notice but upon discovery immediately did so.

      4.     Appellee respectfully requests accept the Notice of Appeal that was

filed within the 15 day grace period as timely and for general relief.

      5.     Appellee files this Motion for Extension of Time to File Appellant’s

Brief Notice of Appeal pursuant to Texas Rules of Appellate Procedure 26.3,

10.5(b)(1)(C), 38.6(d), and the Local Rules of Fourth Court of Appeals.

      WHEREFORE, Appellant, by and through its undersigned Counsel,

requests the Court consider this motion and extend the time for filing its

Appellant’s Notice of Appeal until July 3, 2015.

                                              Respectfully submitted,

                                              GENE TOSCANO, INC.
                                              846 Culebra Road, Suite 104
                                              San Antonio, Texas 78201-6244
                                             Telephone: (210) 732-6091
                                             Facsimile: (210) 735-4167

                                             BY: /s/ Andrew E. Toscano
                                                ANDREW E. TOSCANO
                                                Attorney at Law
                                                State Bar No. 00786832
                                                COUNSEL FOR APPELLANT


                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing has
this day been served on the counsel below, in the means and by the manner
indicated hereinafter:

      Mr. Richard A. Sparr, Jr.
      1313 N. E. Loop 410, Suite 100
      San Antonio, Texas, 78209
      SENT BY FACSIMILE TRANSMISSION
      TO: (210) 828-5444

      Mr. Frederick R. Zlotucha
      222 Main Plaza East
      San Antonio, Texas 78205
      SENT BY FACSIMILE TRANSMISSION
      TO: (210) 227-8316

      FOURTH COURT OF APPEALS
      Cardena-Reeves Justice Center
      300 Dolorosa Ste. 3200
      San Antonio, Texas 78205
      210-355-2762- fax

      Signed on September 30, 2015.

                                             /s/ Andrew E. Toscano
                                             Andrew E. Toscano
                                             Counsel for Appellee
                                                                                           FILE COPY




                                      COURT OF APPEALS
SANDEE BRYAN MARION                    FOURTH COURT OF APPEALS DISTRICT                       KEITH E. HOTTLE
  CHIEF JUSTICE                          CADENA-REEVES JUSTICE CENTER                         CLERK OF COURT
KAREN ANGELINI                              300 DOLOROSA, SUITE 3200
MARIALYN BARNARD                          SAN ANTONIO, TEXAS 78205-3037
REBECA C. MARTINEZ                      WWW.TXCOURTS.GOV/4THCOA.ASPX                             TELEPHONE
PATRICIA O. ALVAREZ                                                                             (210) 335-2635
LUZ ELENA D. CHAPA
JASON PULLIAM                                                                                  FACSIMILE NO.
  JUSTICES                                                                                      (210) 335-2762


                                             September 30, 2015

       Richard A. Sparr Jr.                               Andrew E. Toscano
       Sparr & Geerdes                                    Gene Toscano Inc
       1313 NE Loop 410 Ste 100                           846 Culebra Rd Ste 104
       San Antonio, TX 78209-1529                         San Antonio, TX 78201-6244
       * DELIVERED VIA E-MAIL *                           * DELIVERED VIA E-MAIL *

       Frederick R. Zlotucha
       Law Office of Frederick R. Zlotucha
       222 E Main Plz
       San Antonio, TX 78205-2717
       * DELIVERED VIA E-MAIL *

       RE:    Court of Appeals Number:       04-15-00405-CV
              Trial Court Case Number:       2013-CI-10278

       Style: David Gillespie
              v.
              A.L. Hernden and Frederick R. Zlotoucha

              The Appellant's Motion for Extension of Time to File Notice of Appeal has this date been
       received and filed in the above styled and numbered cause.

                                                          Very truly yours,
                                                          KEITH E. HOTTLE, CLERK


                                                          _____________________________
                                                          Luz Estrada
                                                          Deputy Clerk, Ext. 53219
                                                                                         FILE COPY




                                COURT OF APPEALS
SANDEE BRYAN MARION              FOURTH COURT OF APPEALS DISTRICT                  KEITH E. HOTTLE
  CHIEF JUSTICE                    CADENA-REEVES JUSTICE CENTER                    CLERK OF COURT
KAREN ANGELINI                        300 DOLOROSA, SUITE 3200
MARIALYN BARNARD                    SAN ANTONIO, TEXAS 78205-3037
REBECA C. MARTINEZ                WWW.TXCOURTS.GOV/4THCOA.ASPX                        TELEPHONE
PATRICIA O. ALVAREZ                                                                  (210) 335-2635
LUZ ELENA D. CHAPA
JASON PULLIAM                                                                       FACSIMILE NO.
  JUSTICES                                                                           (210) 335-2762


                                        October 5, 2015

        Richard A. Sparr Jr.                            Andrew E. Toscano
        Sparr & Geerdes                                 Gene Toscano Inc
        1313 NE Loop 410 Ste 100                        846 Culebra Rd Ste 104
        San Antonio, TX 78209-1529                      San Antonio, TX 78201-6244
        * DELIVERED VIA E-MAIL *                        * DELIVERED VIA E-MAIL *

        Frederick R. Zlotucha
        Law Office of Frederick R. Zlotucha
        222 E Main Plz
        San Antonio, TX 78205-2717
        * DELIVERED VIA E-MAIL *

        RE:    Court of Appeals Number: 04-15-00405-CV
               Trial Court Case Number:   2013-CI-10278
               Style: David Gillespie
                      v.
                      A.L. Hernden and Frederick R. Zlotoucha

                Enclosed please find the order which the Honorable Court of Appeals has
        issued in reference to the above styled and numbered cause.

               If you should have any questions, please do not hesitate to contact me.

                                                             Very truly yours,
                                                             KEITH E. HOTTLE, CLERK


                                                             _____________________________
                                                              Luz Estrada
                                                              Deputy Clerk, Ext. 53219


        cc: Donna Kay McKinney (DELIVERED VIA E-MAIL)
                                                                                           FILE COPY



 David GillespieAppellant/s                                                        A.L.




                             Fourth Court of Appeals
                                    San Antonio, Texas
                                          October 5, 2015

                                       No. 04-15-00405-CV

                                        David GILLESPIE,
                                             Appellant

                                                  v.

                          A.L. HERNDEN and Frederick R. Zlotoucha,
                                       Appellees

                   From the 408th Judicial District Court, Bexar County, Texas
                                Trial Court No. 2013-CI-10278
                        Honorable Cathleen M. Stryker, Judge Presiding

                                          ORDER

        On September 15, 2005, we ordered appellant to offer a reasonable explanation for filing
a late notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). “[A]ny
plausible statement of circumstances indicating that failure to file . . . was not deliberate or
intentional, but was the result of inadvert[e]nce, mistake, or mischance, [would] be accepted as a
reasonable explanation.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989); see
also Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.—San Antonio 1998, no
pet.). Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence,
mistake or mischance, even if that conduct can also be characterized as professional negligence.
Garcia, 774 S.W.2d at 670; Dimotsis, 966 S.W.2d at 657. Appellant timely responded to our
order, stating that his counsel, in light of other deadlines in his law practice, inadvertently failed
to timely file the notice of appeal. The explanation is reasonable. We, therefore, grant the motion
for extension of time to file the notice of appeal and ORDER this appeal retained on the court’s
docket. We further ORDER that appellant’s brief is due on November 4, 2015.
                                                       kaa


                                                       _________________________________
                                                       Karen Angelini, Justice
                                                                             FILE COPY

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 5th day of October, 2015.



                                              ___________________________________
                                              Keith E. Hottle
                                              Clerk of Court
                                                                                                 ACCEPTED
                                                                                              04-15-00405-cv
                                                                                 FOURTH COURT OF APPEALS
                                                                                      SAN ANTONIO, TEXAS
                                                                                      10/21/2015 12:04:27 PM
                                                                                              KEITH HOTTLE
                                                                                                      CLERK




                      No. 04-15-00405-CV                                     FILED IN
                        __________________________________________    4th COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                    IN THE COURT OF APPEALS OF TEXAS                 10/21/2015 12:04:27 PM
                        FOURTH JUDICIAL DISTRICT                        KEITH E. HOTTLE
                           SAN ANTONIO, TEXAS                                 Clerk
                        __________________________________________


                         DAVID GILLESPIE,
                                    Appellant,
                                          vs.
      A.L. HERNDEN and FREDERICK R. ZLOTOUCHA,
                                    Appellees.
                __________________________________________
       NOTICE OF APPEARANCE OF APPELLATE COUNSEL &
    APPELLANT’S UNOPPOSED MOTION FOR BRIEFING DEADLINE
                        EXTENSION


To the Honorable Court:

       Appellant David Gillespie asks this Court and all counsel of

record to take notice that he has retained appellate counsel:

Kimberly S. Keller, Keller Stolarczyk PLLC, 234 West Bandera Road,

No. 120, Boerne, Texas 78006.

       Appellant respectfully requests this Court grant him a 30-day

briefing deadline extension.1 Appellant’s brief is currently due on




Appellant’s newly-retained appellate counsel has recently received the
1

appellate record and needs time to analyze the appellate record, research the
November 4, 2015. If this Court grants this Motion, Appellant’s brief

will be due on December 4, 2015. Appellees are unopposed to this

Motion.

                                         Respectfully submitted,

                                         KELLER STOLARCZYK, PLLC
                                         234 West Bandera Road #120
                                         Boerne, Texas 78006
                                         Tele: 830.981.5000
                                         Facs: 888.293.8580

                                         /s/Kimberly S. Keller
                                         Kimberly S. Keller
                                         SBN: 24014182
                                         kim@kellsto.com

                                         COUNSEL FOR APPELLANT




legal issues presented by the trial court’s ruling, and prepare and file a brief to
this Court raising Appellant’s issues on appeal.
                                        2
          CERTIFICATE OF CONFERENCE & SERVICE

      I conferred with opposing counsel, listed below, and was

informed Appellees are unopposed to this Motion. Also, I certify that

on October 21, 2015, I served this Motion on:

                       Richard A. Sparr Jr.
                        SPARR & GEERDES
                   1313 NE Loop 410, Suite 100
                    San Antonio, Texas 78209
                    Email: rsparr@sparrlaw.net

                      Frederick R. Zlotucha
               LAW OFFICE OF FREDERICK R. ZLOTUCHA
                        222 E. Main Plaza
                    San Antonio, Texas 78205
                      Counsel for Appellees


                                  /s/Kimberly S. Keller
                                  Kimberly S. Keller




                                 3
                                                                                                FILE COPY




                                  Fourth Court of Appeals
                                         San Antonio, Texas
                                               October 21, 2015

                                              No. 04-15-00405-CV

                                              David GILLESPIE,
                                                   Appellant

                                                v.
                                              A.L.
                               A.L. HERNDEN and Frederick R. Zlotoucha,
                                            Appellee

                        From the 408th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2013-CI-10278
                             Honorable Cathleen M. Stryker, Judge Presiding

                                         CORRECTED ORDER
               The Appellant’s Motion for Extension of Time to File Brief has this date been received
      and filed in the above styled and numbered cause. Extension of time to file the Appellant’s brief
      is this date GRANTED. Time is extended to December 4, 2015.

                                                                        PER CURIAM

      ATTESTED TO:        ____________________________
                          KEITH E. HOTTLE
                          CLERK OF COURT




cc:              Kimberly S. Keller                           Richard A. Sparr Jr.
                 No. 120                                      Sparr & Geerdes
                 Boerne, TX 78006-2805                        1313 NE Loop 410 Ste 100
                                                              San Antonio, TX 78209-1529
                 Andrew E. Toscano
                 Gene Toscano Inc                             Frederick R. Zlotucha
                 846 Culebra Rd Ste 104                       Law Office of Frederick R. Zlotucha
                 San Antonio, TX 78201-6244                   222 E Main Plz
                                                              San Antonio, TX 78205-2717
                                                                                                  ACCEPTED
                                                                                               04-15-00405-cv
                                                                                  FOURTH COURT OF APPEALS
                                                                                       SAN ANTONIO, TEXAS
                                                                                        11/3/2015 12:11:03 PM
                                                                                               KEITH HOTTLE
                                                                                                       CLERK




                       No. 04-15-00405-CV                                    FILED IN
                         __________________________________________   4th COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                    IN THE COURT OF APPEALS OF TEXAS                  11/3/2015 12:11:03 PM
                        FOURTH JUDICIAL DISTRICT                          KEITH E. HOTTLE
                           SAN ANTONIO, TEXAS                                  Clerk
                         __________________________________________


                          DAVID GILLESPIE,
                                     Appellant,
                                           vs.
     A.L. HERNDEN and FREDERICK R. ZLOTOUCHA,
                                     Appellees.
                __________________________________________
                    AMENDED NOTICE OF APPEAL


To the Honorable Court:

      Plaintiff below, Michael O’Brien, hereby gives notice that he

intends to appeal the final judgment entered by the trial court (Hon.

Cathleen M. Stryker, 224th District Court, Bexar County) on April 2,

2015.1 This appeal will be taken to the Fourth District Court of

Appeals in San Antonio, Texas. An original notice of appeal was

filed by Plaintiff below, David Gillespie, on July 3, 2015;2 although


1
  This Amended Notice of Appeal is filed under Texas Rule of Appellate
Procedure 25.1(g), which permits a litigant to file an amended notice of appeal
to correct a “defect or omission” at “any time before the appellant’s brief is
filed.”
2
  A copy of the original notice of appeal is attached to this Amended Notice of
Appeal.
the style on the notice contained both David Gillespie’s and Michael

O’Brien’s names, O’Brien’s name was omitted, in oversight, within

the body of the notice. Gillespie and O’Brien now file this Amended

Notice of Appeal to clarify that both Gillespie and O’Brien are

appealing the trial court’s April 2, 2015 Final Judgment.3

     Appellants respectfully request the Clerk of the Court to

change the style of the appeal to reflect both Appellants, David

Gillespie and Michael O’Brien, as appellants in this appeal.

                                     Respectfully submitted,

                                     KELLER STOLARCZYK, PLLC
                                     234 West Bandera Road #120
                                     Boerne, Texas 78006
                                     Tele: 830.981.5000
                                     Facs: 888.293.8580

                                     /s/Kimberly S. Keller
                                     Kimberly S. Keller
                                     SBN: 24014182
                                     kim@kellsto.com

                                     COUNSEL FOR APPELLANTS




3
 Co-Appellants note that the Final Judgment rendered final an interlocutory
order entered by the trial court on August 6, 2014, denying Appellants’
summary judgment motion. Co-Appellants intend to appeal both rulings by the
trial court. A copy of both the interlocutory order and final judgment are
attached to this Amended Notice of Appeal.
                                    2
          CERTIFICATE OF CONFERENCE & SERVICE

      I certify that on November 3, 2015, I served this Amended

Notice of Appeal on:

                       Richard A. Sparr Jr.
                        SPARR & GEERDES
                   1313 NE Loop 410, Suite 100
                    San Antonio, Texas 78209
                    Email: rsparr@sparrlaw.net

                      Frederick R. Zlotucha
               LAW OFFICE OF FREDERICK R. ZLOTUCHA
                        222 E. Main Plaza
                    San Antonio, Texas 78205
                      Counsel for Appellees


                                /s/Kimberly S. Keller
                                Kimberly S. Keller




                                3
FILED
7/3/2015 10:29:15 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez


                                                CAUSE NO. 2013-CI-10278

                    DAVID GILLESPIE AND                         §     IN THE DISTRICT COURT
                    MICHAEL O’BRIEN                             §
                                                                §
                    v.                                          §     408th JUDICIAL DISTRICT
                                                                §
                    A. L. HERNDEN AND                           §
                    FREDERICK R. ZLOTUCHA                       §     BEXAR COUNTY, TEXAS

                                                    NOTICE OF APPEAL

                    TO THE HONORABLE JUDGE OF SAID COURT:

                           WHEREAS ON April 2, 2015, the Honorable Cathleen M. Stryker of the 224th

                    Judicial District Bexar Court, entered a Final Judgment in this cause. Plaintiff, DAVID

                    GILLESPIE wishes to appeal from said Final Judgment to the Court of Appeals for the

                    Fourth District of Texas in San Antonio, Texas.


                                                                      RESPECTFULLY SUBMITTED,

                                                                      GENE TOSCANO, INC.,

                                                                      BY: /s/ Andrew E. Toscano
                                                                      ANDREW E. TOSCANO
                                                                      SBN: 00786832
                                                                      846 Culebra Road, Suite 104
                                                                      San Antonio, Texas 78201
                                                                      210/732-6091 tel
                                                                      210/735-4167 fax
                                                                      ATTORNEY PLAINTIFF




             1043
                                    CERTIFICATE OF SERVICE

               I hereby certify that a true and correct copy of the above and foregoing has been
       sent by hand delivery to the following counsel of record on this 3rd day of July, 2015:

              Mr. Richard A. Sparr, Jr.
              1313 N. E. Loop 410, Suite 100
              San Antonio, Texas, 78209
              SENT BY FACSIMILE TRANSMISSION
              TO: (210) 828-5444

              Mr. Frederick R. Zlotucha
              222 Main Plaza East
              San Antonio, Texas 78205
              SENT BY FACSIMILE TRANSMISSION
              TO: (210) 227-8316

              FOURTH COURT OF APPEALS
              Cardena-Reeves Justice Center
              300 Dolorosa Ste. 3200
              San Antonio, Texas 78205
              210-355-2762- fax


                                                          /s/ Andrew E. Toscano
                                                         ANDREW E. TOSCANO




1044
1022
1023
1024
1025
563
FILED
11/19/2015 2:00:19 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez


                                                CAUSE NO. 2013-CI-10278

             DAVID GILLESPIE                                  §   IN THE DISTRICT COURT
             MICHAEL O’BRIEN,                                 §
                   PLAINTIFFS,                                §
                                                              §
             —VERSUS—                                         §   408TH JUDICIAL DISTRICT
                                                              §
             A.L. HERNDEN AND                                 §
             FREDERICK R. ZLOTUCHA,                           §
                   DEFENDANTS.                                §   BEXAR COUNTY, TEXAS


                                        ALTERNATIVE NOTICE OF CROSS APPEAL


             TO THE HONORABLE JUDGE OF SAID COURT:

                     COME NOW A.L. Hernden and Frederick R. Zlotucha, Defendants, and hereby file their

             Alternative Notice of Cross Appeal of the Order Granting Defendants’ Combined No Evidence

             and Traditional Motions for Summary Judgment and Final Judgment signed by the 408th

             Judicial District Court of Bexar County, the Honorable Cathy Stryker, presiding, on April 2,

             2015. Defendants A.L. Hernden and Frederick R. Zlotucha desire to appeal this case to the Court

             of Appeals for the Fourth Court of Appeals District of Texas in San Antonio. This notice of cross

             appeal is filed in the alternative because it is conditioned on the Fourth Court of Appeals’ denial

             of the Opposed Motion to Strike Untimely “Amended” Notice of Appeal Filed Four Months

             After the Deadline that was filed with the Fourth Court of Appeals on November 19, 2015.

             Defendants A.L. Hernden and Frederick R. Zlotucha file this Notice of Cross Appeal to preserve

             their ability to complain about the late-filed “amended” notice of appeal filed by Plaintiff

             Michael O’Brien on November 3, 2015.
Respectfully submitted,

/s/ Beth Watkins
Beth Watkins
State Bar No. 24037675
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666—phone
(210) 225-2300—fax
Beth.Watkins@WatkinsAppeals.com

Counsel for Defendants/ Cross Appellees
A.L. Hernden and Frederick R. Zlotucha
                                   CERTIFICATE OF SERVICE

        I hereby certify that, on November 19, 2015, I electronically served, via FileTime, my e-
filing service provider, a true and correct copy of the above document on the following counsel
of record:

       Ms. Kimberly S. Keller
       KELLER STOLARCZYK, PLLC
       234 West Bandera Road #120
       Boerne, Texas 78006
       (830) 981-5000—phone
       (888) 293-8580—fax
       kim@kellsto.com

       Attorney for Appellant
       David Gillespie

                                            /s/ Beth Watkins
                                            Beth Watkins

                                            Counsel for Defendants
                                            A.L. Hernden and Frederick R. Zlotucha
