Monterey Mushrooms, Inc. v. Majestic Realty Co

ACCEPTED
05-13-01015-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
12/31/2014 1:20:48 PM
LISA MATZ
CLERK

05-13-01015-CV

IN THE FILED IN
5th COURT OF APPEALS
FIFTH COURT OF APPEALS DALLAS, TEXAS
AT DALLAS 12/31/2014 1:20:48 PM
LISA MATZ
Clerk

MONTEREY MUSHROOMS, INC.
d/b/a MONTEREY MUSHROOMS, and
CAPROCK CLAIMS MANAGEMENT, LLC
Appellants,

vs.

MAJESTIC REALTY CO. and
McLANE FOODSERVICE, INC.
Appellees

Appealed from the
192nd Judicial District Court
Dallas County, Texas

MOTION FOR EXTENSION OF TIME FOR FILING A MOTION
FOR REHEARING OR EN BANC RECONSIDERATION

Appellants Monterey Mushrooms, Inc. d/b/a Monterey Mushrooms, and

Caprock Claims Management, LLC (“Appellants”), pursuant to Rule 10.5(b) of the

Texas Rules of Appellate Procedure, file the following Motion for Extension of

Time for filing their Motion for Rehearing or En Banc Reconsideration, and would

show:

MOTION FOR EXTENSION OF TIME FOR FILING A MOTION
FOR REHEARING OR EN BANC RECONSIDERATION PAGE 1 OF 5
 1. On December 4, 2014, the Fifth Court of Appeals filed and entered its

decision (the “December 4 Decision”), affirming the trial court’s summary

judgment against Appellants. Under the Texas Rules of Appellate Procedure (the

“Rules”), the Appellants’ deadline for filing a motion for rehearing or en banc

reconsideration would have been 15 days later, on December 19, 2014. See TEX. R.

APP. P. 49.1, 49.7. However, the Court may extend Appellants’ deadline if a

motion for extension of time is filed no later than 15 days after December 19,

2014; i.e., on or before January 3, 2015. See TEX. R. APP. P. 49.8.

2. In the 2 weeks following the Court’s December 4 Decision,

Appellants’ counsel was involved and directly participated in several hearings,

depositions, mediations and other proceedings, each of which required him to

travel a full day or more to Denver, Colorado, as well as El Paso, Austin and

Houston, Texas. In combination with his travel and work schedule, Appellants’

counsel has also been suffering from a lingering bronchial infection, from which he

is only now in the final stages of recovery. As a result of these intervening matters,

Appellants’ counsel was not able to comply with the 15-day deadline outlined in

Rules 49.1 and 49.7. However, Appellants strongly wish to seek reconsideration

and/or en banc review of the December 4 Decision, and respectfully request this

Court to allow them additional time to do so.

MOTION FOR EXTENSION OF TIME FOR FILING A MOTION
FOR REHEARING OR EN BANC RECONSIDERATION PAGE 2 OF 5
 3. This request for extension of time to file Appellants’ Motion for

Rehearing or En Banc Reconsideration is made in good faith and not for the

purpose of delay only, but so that justice may be done. No previous extensions

have been granted with regard to this request.

4. Appellants respectfully request no later than ten (10) days from the

date of this Motion in which to file their Motion for Rehearing or En Banc

Reconsideration; i.e., on or before January 18, 2015.

5. Appellants’ counsel attempted to confer with counsel for both

Appellees by email and telephone, regarding the substance of this Motion.

Counsel for Appellee, Majestic Realty Co., responded by email that he could not

“agree without approval from my client and she's out for the holidays”; counsel for

Appellee, McLane Foodservice, Inc., could not be reached as of the time this

Motion was filed.

WHEREFORE, PREMISES CONSIDERED, Appellants respectfully

request the Court of Appeals to grant their Motion for Extension of Time, permit

Appellants to file their Motion for Rehearing or En Banc Reconsideration on or

before January 18, 2015, and for all such other and further relief to which

Appellants may be justly entitled.

MOTION FOR EXTENSION OF TIME FOR FILING A MOTION
FOR REHEARING OR EN BANC RECONSIDERATION PAGE 3 OF 5
 Respectfully submitted,

By: /s/ Paul M. Hood
Paul M. Hood
State Bar No. 09943440
PAUL M. HOOD, P.C.
1717 Main Street
Suite 5500, LB# 49
Dallas, Texas 75201-7398
(214) 373-3214 phone
(214) 373-0843 fax
pmhood@pmhlaw.com
ATTORNEYS FOR APPELLANTS,
MONTEREY MUSHROOMS, INC.
d/b/a MONTEREY MUSHROOMS
and CAPROCK CLAIMS
MANAGEMENT, LLC

CERTIFICATE OF CONFERENCE

On December 31, 2014, counsel for Appellants attempted to confer via

telephone conference and email with counsel for Appellees regarding the substance

of this Motion. On the same day, counsel for Appellee, Majestic Realty Co.,

responded by email that he could not “agree without approval from my client and

she's out for the holidays”; counsel for Appellee, McLane Foodservice, Inc., could

not be reached as of the time this Motion was filed.

/s/ Paul M. Hood
Paul M. Hood

MOTION FOR EXTENSION OF TIME FOR FILING A MOTION
FOR REHEARING OR EN BANC RECONSIDERATION PAGE 4 OF 5
 CERTIFICATE OF SERVICE

I certify that on December 31, 2014, a copy of the foregoing instrument was

served on all counsel of record via electronic service, pursuant to the Texas Rules

of Civil and Appellate Procedure.

/s/ Paul M. Hood
Paul M. Hood

MOTION FOR EXTENSION OF TIME FOR FILING A MOTION
FOR REHEARING OR EN BANC RECONSIDERATION PAGE 5 OF 5