Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/29/2015 3:50:07 PM JEFFREY D. KYLE Clerk No. 03-15-00309-CV THIRD COURT OF APPEALS 12/29/2015 3:50:07 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00309-CV *1 ACCEPTED [8397586] CLERK ________________________________________________________________
IN THE THIRD COURT OF APPEALS IN AUSTIN, TEXAS ____________________ City of Austin and The United Healthcare Choice Plus Plan for City of Austin Employees Appellants, v.
Charles Lesniak
Appellee ____________________ th On Appeal From the 419 District Court,
Travis County, Texas ____________________ APPELLEE’S MOTION FOR EXTENSION OF TIME ____________________
Pursuant to Texas Rules of Appellate Procedure 10.5(b) and 49.8, Appellee Charles
Lesniak (“Appellee”) respectfully files this motion for extension of time to file his
motion for rehearing.
PROCEDURAL BACKGROUND Appellants’ Brief was filed with the Third Court of Appeal on June 24, 2015. Appellee’s Brief was filed with the Third Court of Appeal on July 15, 2015. *2 3. The Court issued its Memorandum Opinion on December 1, 2015. Judgment
was rendered dismissing Appellee’s claims for lack of jurisdiction.
4. Pursuant to Tex. R. App. Proc. 49.1, Appellee’s motion for rehearing was
originally due by no later than December 16, 2015. Appellee now seeks an
extension of time to file his motion for rehearing pursuant to Tex. R. App.
Proc. 49.8.
BASIS FOR EXTENSION 5. Appellee requests a forty five (45) day extension to file his motion for
rehearing in this case. If the extension is granted, his request would be due by
no later than February 1, 2016. Appellee requires the additional time to
prepare his motion in light of recent action by the Texas Supreme Court. On December 18, 2015, the Texas Supreme Court set several cases for oral
argument that involve the common law and statutory governmental immunity
issues in this case. Those matters are:
a. Case No. 14-0645; Wasson Interests, Ltd. v. City of Jacksonville, Texas b. Case No. 15-0029; Wheelabrator Air Pollution Control, Inc. v. City of San Antonio Both of these cases involve pleas to the jurisdiction by governmental entities.
A critical issue in Wasson is whether to apply the common law distinction
i
between governmental-proprietary functions in contract cases. The principal
issue in Wheelabrator is the availability of attorneys’ fees in a suit involving
Tex. Local Govt. Code §271. Both of these issues are central to this matter.
8. Oral argument in both of these cases is set for Thursday, January 14, 2016.
Appellee believes that these oral arguments will help guide the parties in this
case on how the Texas Supreme Court may ultimately dispose of this matter. This is the first request for an extension to file Appellee’s Motion for
Rehearing. This motion is not sought for delay, but so that justice may be done.
Prayer
For these reasons, Appellee Charles Lesniak requests that this Court grant a 45 day
extension, making Appellee’s Motion for Rehearing due on Monday, February 1, 2016.
Respectfully submitted, By ___/s/ Amar Raval________________ James C. Plummer, TBA #16075700 Amar Raval, TBA # 24046682 PLUMMER | RAVAL 4203 Montrose Boulevard, Ste 270 Houston, Texas 77006 (713) 522-2887 (713) 522-3605 (Fax) Jplummer@plummerlawyers.com ii
Araval@plummerlawyers.com ATTORNEYS FOR APPELLEE CERTIFICATE OF CONFERENCE I hereby certify that I conferred with counsel for the City of Austin and counsel for
United Healthcare on December 29, 2015 regarding this motion. As of the filing of this
motion, I have not heard back from either counsel. It is thus unknown whether
Appellants are opposed or unopposed to this motion.
_______/s/ Amar Raval___________ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Appellee’s
Motion for Extension of Time was served pursuant to Tex. R. App. Proc. 9.5 on
December 29, 2015, to:
Andralee Cain Lloyd
Megan Mosby
City of Austin Law Department
P.O. Box 1546
Austin, TX 78767
Andrew Jubinski
Lance Clack
Figari & Davenport, LLP
901 Main St., Suite 3400
Dallas, TX 75202
_______/s/ Amar Raval___________ iii