ACCEPTED 03-15-00521-CV 8414046 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/30/2015 3:54:21 PM JEFFREY D. KYLE CLERK 03-15-00521-CV In The Texas Court of Appeals FILED IN 3rd COURT OF APPEALS Third District at Austin AUSTIN, TEXAS 12/30/2015 3:54:21 PM JEFFREY D. KYLE Clerk ROGER FAY, Appellant v. TEXAS A&M UNIVERISTY; GEOCHIMICAL AND ENVIRONMENTAL RESEARCH GROUP; THE COLLEGE OF GEOSCIENCES AND MARITIME STUDIES; DR. RAY BOWEN; DR. ROBERT DUCE; DR. NORMAN GUINASSO; DR. ROGER SASSEN; AND DR. DAVID SCHINK, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 97-08888, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING _________________________________________________________ APPELLANT’S FIRST AMENDED MOTION TO REINSTATE APPEAL ________________________________________________________

C. Bryan Cantrell State Bar No. 00793459 Cantrell, Ray & Barcus, LLP P.O. Box 1019 Huntsville, Texas 77342 Tel: 936-730-8541 Fax: 936-730-8535 Counsel for Appellant TO THE HONORABLE APPEALS COURT OF TEXAS: 1. Appellant, Movant, Roger Fay, requests this Court to reverse its decision to dismiss his Appeal. Appellant never received notice of the briefing schedule or any other correspondence from the Court until after the Court had dismissed Fay’s appeal for want of prosecution.

2. Movant’s counsel, Bryan Cantrell, never received notice of a briefing schedule or any other communication from the Court due to a problem with Counsel’s electronic mail system. Cantrell retired an older computer in the Fall of 2015 and replaced the computer with a new system. Unbeknownst to counsel, the computers were both set up with Microsoft Outlook. Because of the security system for Cantrell’s firm, the IP address assignment for the two computers would capture incoming emails. If the older computer was on, at the office and on the same wireless service, it would capture emails directed to Cantrell without posting the same emails to the new computer. Essentially, because Outlook periodically updated current emails, the two computers would capture emails upon the “receive” function. However, the emails captured by the separate computers were not shared with the other computer.

3. Cantrell’s office only recently discovered the origin of the problem and have since corrected the matter. However, because the retired computer was having difficulties operating, we could not retrieve any of the correspondence on that

computer. Cantrell’s office has also established new procedures in an attempt to correct any future problems, including copies of correspondence automatically directed to paralegal support staff.

4. The errors in Cantrell’s office were not a result of negligence or conscience indifference. The errors were solely the product of an electronic issue that Cantrell could not have anticipated.

CONCLUSION AND PRAYER For the reasons asserted above, Appellant respectfully asks this Court to reinstate this appeal.

Respectfully submitted, CANTRELL, RAY & BARCUS, LLP

By: /s/ C. Bryan Cantrell .

C. Bryan Cantrell Texas Bar No. 00793459 P.O. Box 1019 Huntsville, Texas 77342 (936) 730-8541 Telephone (936) 730-8535 Fax [email protected]

CERTIFICATE OF CONFERENCE Counsel for Appellant contacted counsel for Appellees, Laura Barber, who stated Appellees are opposed to this Motion.

By: /s/ C. Bryan Cantrell .

C. Bryan Cantrell

CERTIFICATE OF SERVICE This is to certify that the above and foregoing document has been delivered according to the Tex. R. App. P. to all counsel of record on this 30th day of December, 2015.

William T. Deane Laura Barber General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 By E-file and/or fax By: /s/ C. Bryan Cantrell .

C. Bryan Cantrell