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

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
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