Linda S. Nowlin v. Lori Keaton

ACCEPTED
03-14-00608-CV
4098627
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/10/2015 4:52:25 PM
JEFFREY D. KYLE
CLERK

CAUSE NO. 03-14-00608-CV
FILED IN
LINDA S. NOWLIN, § IN THE3rd
THIRD
COURT OF APPEALS
APPELLANT, § AUSTIN, TEXAS
v. § COURT OF2/10/2015
APPEALS 4:52:25 PM
LORI KEATON, § JEFFREY D. KYLE
APPELLEE § Clerk
AUSTIN, TEXAS

APPELLANT’S RESPONSE TO APPELLEE’S
MOTION TO EXTEND TIME TO FILE BRIEF

NOW COMES Appellant, LINDA NOWLIN, as Respondent herein, and files this

Response to Appellee’s Motion to Extend Time to File Brief, showing the Court the following in

support thereof:

I. FACTS

1. On September 23, 2014, Appellant filed her Notice of Appeal in this matter.

2. On November 17, 2014, the Clerk’s Record was filed, and on November 24,

2014, the court reporter for Travis County Court at Law #1 filed her Reporter’s Record

and all exhibits. On November 25, 2014, the court reporter filed her Supplemental

Reporter’s Record, completing the record in this matter.

3. On December 26, 2014, Appellant made her first attempt to file her Appellant’s

Brief, which attempt was rejected due to Appellant’s Counsel’s failure to include a

Certificate of Compliance and Appendix as required by Tex. R. App. P. 9.4(i)(3) and

9.4(h), respectively.

4. On that same day, Appellant transmitted a copy of Appellant’s Brief to the

address of record of Appellee’s counsel by mail through the United States Postal Service.

See Attached Exhibit #1. Though three attempts were made at delivering the package,

the first of which was made the following day, December 27, 2014, delivery was declined
 and the package was eventually returned to Appellant, unaccepted.

4. On January 9, 2015, Appellant filed a corrected Appellant’s Brief, which was

accepted by the Court.

5. On January 16, 2015, the Court transmitted to Appellee a copy of the record in

this matter.

6. On February 9, 2015, Appellee, through her counsel, filed her Motion to Extend

Time to File Brief, stating in support of her motion that Appellee and Appellee’s Counsel

had not had the opportunity to meet to discuss the contents of Appellant’s Brief and the

drafting of Appellee’s Brief. Appellee included no affidavit in support of her motion

and gave no detailed recitation of the facts relied upon to explain the need for the

extension sought.

II. APPELLEE’S REQUEST

1. Under Tex. R. App. P. 10.5(b)(1)(C) a motion to extend time to file brief is

required to include “the facts relied on to reasonably explain the need for an extension[.]”

2. Though the argument is not made in Appellee’s motion that the Court should

grant leeway to Appellee on this deadline because leeway was granted to Appellant, it

should be noted that Appellant’s Brief was due on December 26, 2014 1, and though it

was filed on that day, it was rejected and the brief was not filed and accepted until

January 9, 2015. It should also be noted, however, that the brief that was eventually

accepted is substantively identical to the brief that was filed by the original deadline, and

that, consequently Appellee and her counsel were provided access to Appellant’s Brief

forty-five days prior to the date on which Appellee made her motion to extend time.

1
The thirtieth day following the filing of the Reporter’s Record was December 24, 2014, which day was a state and
local holiday, as was the following day, making Appellant’s Brief due on December 26, 2014.
3. Though Appellee did not accept delivery of the first copy of Appellant’s Brief,

final delivery was made via electronic service on January 9, 2015, thirty-one days prior to

the date on which Appellee made her motion, and Appellee has been in possession of the

record since January 16, 2015.

4. Appellee stated as her reason for failing to produce a brief before the expiration of

her time to do so that she and her counsel “have been unable to meet to discuss

Appellant's brief in detail and wish to do so before Appellee files her brief[,]” but she

provides no information at all regarding the reason she has been unable to meet with her

counsel to discuss this matter during the forty-five day period during which she could

have, through the exercise of due diligence, had access to said brief.

5. Appellee’s mere, unsworn assertion of an inability to meet with her counsel

during this period is insufficient to constitute “facts relied on to reasonably explain the

need for an extension[,]” as required by Rule 10.5.

6. Additionally, though Appellant’s counsel did state to Appellee’s counsel words to

the effect of “we will not fight you on this motion” the statement was made during the

course of a conversation regarding whether or not it was necessary to hold a hearing on

the matter of the extension and was never intended to suggest that Appellant agreed to the

extension or acquiesced to it or that she would not respond to Appellee’s motion and

provide the Court with all of the information relevant to its decision whether or not to

grant Appellee the extension of time she seeks.

7. Finally, it should be noted that though it is stated in Appellee’s motion that

“Appellee conferred with Appellant’s counsel” regarding the substance thereof, this is

incorrect and most probably a typographical error. The conference in question took
 place between Appellant’s counsel and Appellee’s counsel, and at no time during the

pendency of this appeal has Appellant’s counsel conferred with or spoken directly to

Appellee about the substance of the matter at hand or any other.

8. In conclusion, ultimately it is simple fact that Appellee has failed to file her

Appellee’s Brief during the time allotted to her to do so by the Rules of this Court.

WHEREFORE, Appellant prays this Court deny Appellee’s motion.

Respectfully submitted,

By: /s/ David Nowlin
David Nowlin
Texas Bar No. 24049196
Email: davidnowlin@me.com
7301 RR 620 North, Ste. 155, 319
Austin, Texas 78726-4537
Tel. (512) 468-4882

ATTORNEY FOR APPELLANT
LINDA NOWLIN

CERTIFICATE OF SERVICE

I certify that on February 10, 2015, a true and correct copy of Appellant’s Response to
Appellee’s Motion to Extend Time to File Brief was served by electronic mail on Robby Abarca,
the attorney of record for Appellee Lori Keaton, at his email address of record,
“RPAbarca@AbarcaLawFirm.com”.

/s/ David Nowlin
David Nowlin
EXHIBIT #1