Cowboy's Retail & Wholesale Beverage Distribution, LLC, Kyle Gillin and Great American Treating, Inc. v. Peggye Davis, Jim Davis, Jay Davis and Richard L. Ray, Trustee

ACCEPTED
12-14-00085-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/23/2015 4:09:40 PM
CATHY LUSK
CLERK

Case Number 12-14-00085-CV
FILED IN
12th COURT OF APPEALS
IN THE TYLER, TEXAS
4/23/2015 4:09:40 PM
TWELFTH COURT OF APPEALS CATHY S. LUSK
Clerk

TYLER, TEXAS

COWBOY'S RETAIL & WHOLESALE BEVERAGE DISTRIBUTION, LLC,
KYLE GILLIN AND GREAT AMERICAN TREATING, INC.

Appellant,

v.
PEGGYE DAVIS, JIM DAVIS, JAY DAVIS AND RICHARD L. RAY,

TRUSTEE,

Appellee.

APPELLEES' SECOND MOTION TO POSTPONE ORAL ARGUMENT

TO THE HONORABLE COURT OF APPEALS:
Now comes PEGGYE DAVIS, JIM DAVIS, JAY DAVIS and RICHARD L.

RAY, Appellees and Movants herein, by and through their attorney of record,

Richard L. Ray, and files this their Second Motion To Postpone Oral Argument

concerning a setting for oral argument and submission on Tuesday, May 12, 2015 at
Page 1
8:30 a.m., Courtroom, First Floor, Cotton Belt Building, 1517 W. Front Street,

Tyler, Texas 75702 and for grounds heretofore would show the Court as follows:

I.

That on March 19, 2015 at 6:01 p.m., the Appellees and Movants received

an electronic notice from the Court setting the above referenced case for oral

argument on May 12, 2015 at 8:30a.m. A copy of this electronic notification is

attached hereto as Exhibit "A".

II.

That counsel for the Appellees and Movants, Peggye Davis, Jim Davis, Jay

Davis and Richard L. Ray, was previously set for Pre-Trial hearing in VanZandt

County Court at Law at 9:00 a.m. in Canton, Texas; and for three (3) administrative

hearings, at 10:00, 10:45, and 11:30 a.m. in Dallas, Texas, at Dallas SSA, located at

12790 Merit Drive, Suite 500, Room 3.

Attached hereto as Exhibit "B" is a copy of the Scheduling Order and the

three (3) SSA notices which indicate notice of the Pre-Trial hearing was sent on

October 3, 2014, and the SSA notices were sent on March 12,2015.

That Brent Howard serves as co-counsel for Appellees.

III.

As a result the movant's counsel, who prepared the pending brief, cannot

Page2
appear at the setting for oral argument scheduled on Tuesday, May 12, 2015, at 8:30

a.m.

IV.

This motion to postpone oral argument is not made for purposes of delay but

so that justice may be done.

WHEREFORE, prays the Court that this case be postponed until a later date.

Respectfully submitted,

Peggye Davis, Jay Davis, Jim Davis and Richard L. Ray
Appellees and Movants

Is/ Richard L. Ray
RICHARD L. RAY
State Bar No. 16606300
RAY & THATCHER, ATTORNEYS AT LAW, P.C.
300 S. TRADE DAYS BLVD.
CANTON, TEXAS 75103
903 567-2051
903 567-6998 (FAX)
rlray@rayandthatcher.com

Brent Howard
State Bar No. 10062600
HOWRD & DAVIS
100 E. Ferguson St. #1200
Tyler, Texas 75202
(903) 533-9997
(903) 533-0260 (FAX)
bhoward@hbdtyler.com

ATTORNEYS FOR APPELLEES AND MOVANTS
Page3
 (
VERIFICATION

THE STATE OF TEXAS §

COUNTY OF VANZANDT §

Richard L. Ray, the Attorney for Peggye Davis, Jim Davis, Jay Davis and

Richard L. Ray, Appellees and Movants named above, being duly sworn, says:

1. That he is the attorney of record for Appellees and Movants in the above

styled and numbered cause;

2. That he is duly authorized to make this verification;

3. That he is familiar with the matters set forth in the Appellees' Second
(
Motion To Postpone Oral Argument; and

blic, on this the
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Yaula I. Landwermeyer ·
Notary Public in and for the State of Texas
My Commission Expires: 09-11-2017

(
Page4
 CERTIFICATE OF SERVICE

CERTIFYING that a true and correct copy of the foregoing Appellees'

Second Motion to Postpone Oral Argument has on this the 22nd day of April, 2015,

been forwarded to the following counsel of record:

I. Bennett White
I. Bennett White, P.C.
P.O. Box 6250
Tyler, Texas 75703

Brent Howard
Howard & Davis
100 E. Ferguson St., #1200
Tyler, Texas 75702.

Is/ Richard L. Ray
RICHARD L. RAY

Page 5
 CERTIFICATE OF CONFERENCE

I, Richard L. Ray, do hereby certify that I attempted to conference with J.
Bennett White of the firm J. Bennett White, P.C., counsel for Appellants
concerning the Appellees' Second Motion to Postpone Oral Argument on April
23, 2015. Mr. White was not available so I left a message for him to return. To
date and time, no response has been received.

Is/ Richard L. Ray
RICHARD L. RAY

Page6
 3/20/2015

Richard Ray

(
Notice(s): 12-14-00085-CV
1 message
·--------------
COA12Noticing@txcourts.gov Thu, Mar 19, 2015 at 6:01 PM
To: rlray@rayandthatcher.com

You have received notice(s) for the following case(s):

12-14-00085-CV
TC #60, 086-B
Cowboy's Retail & Wholesale Beverage Distribution, LLC, Kyle Gillin and Great American Treating, Inc. v.
Peggye Da~s. Jim Da~s. Jay Da~s and Richard L. Ray, Trustee

Files
MT POSTPONE OA DISP_ANT-APP _GRANT_FILECOPY.pdf

Thank you,
Cathy S. Lusk
12th Court of Appeals
( Do not reply to this message. If you have questions, please contact the Court at (903) 593-8471.

t9 MT POSTPONE OA DISP_ANT-APP_GRANT_FILECOPY.pdf
' 225K

hHps://mall.google.corn'mall/u/O/?ui=2&i~016ddBaa05&~ew=pt&search=inbox&th=14c3445121bB96d7&siml=14c3445121b896d7 1/1
 FILE COPY

(

CHJEP JUSTICE CLERK
JAMEST. WORTHEN CATHY S. LUSK

TWELFTH COURT OF APPEALS
JUSTICES CHJBFSTAFF ATTORNEY
BRIAN HOYLE MARGARET HUSSEY
GREG NEELEY

Thursday, March 19,2015

Mr. Richard L. Ray Mr. J. Bennett White
Ray & Thatcher, PC J. Bennett White, PC
300 S. Trade Days Blvd. P.O. Box6250
(300 S. Hwy 19) Tyler, TX 75711
Canton, TX 75103 *DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *

Mr. Brent Howard
Howard & Davis, PC
100 East Ferguson
Suite 1200
Tyler, TX 75702
* DELIVERED VIA E-MAIL *
(
RE: Case Number: 12-14-00085-CV
Trial Court Case Number: 60,086-B

Style: Cowboy's Retail & Wholesale Beverage Distribution, LLC, Kyle Gillin and Great
American Treating, Inc.
v.
Peggye Davis, Jim Davis, Jay Davis and Richard L. Ray, Trustee

You are hereby notified that in the above-described case, the following decision and order was
this day made and entered by this Court:

"THIS DAY came on to be considered Appellee's Motion to Postpone Oral Argument herein;
and the same being inspected, it is ORDERED that said motion be, and hereby is, GRANTED,
and that oral argument will be set Tuesday, May 12,2015@ 8:30am."

Very truly yours,

CATHY S. LUSK, CLERK

(
1517WESTFRONTS'rREET o SUITE354 • TYLER, TX75702 o TEL:903-593-8471 • FAX:903-593-2193
Serving Anderson~ Angelina~ CherokeeJ Gregg HendersonJ Houston Nacogdoches_ Rains._ Rusk; Sabine_ San Augustine, Shelb~ Smith, Trinity; lfpshur. Van
Zandt and Wood Coundes
http://www.txcourts.gov/12thcoa.aspx
 RECEIVED 10/03/2014 03:24PM 9035676998 ,.
RAY AND THATCHER
Oct. 3. 2014 3:39PM ( l No. 1594 P. 1/3

(
~.a'' ~©~llWJE!])
OCT 0 6 2014
CAUSE NO. CV04799 ,/JP
LARRY WAYNE TllOMAS § TllE COUNTY COURT
§
§
vs. § ATLAWOF
§
§
DEWAYNE ANDERSON § VANZANDT COUNTY, TEXAS

SCHEDULING ORDER
JURY TRIAL

ln an effort to assist in the disposition of this case without undue bmden or expense to the
patties, the Court finds that the following Scheduling Order will facilitate the fair, timely, and
responsible resolution of the above numbered cause, and therefore, IT IS ORDERED that the
following case settings and deadlines apply:

May 20,2015 Jury Trial is set to begin at 8:30a.m. on the dates specified,

( Mfly 12. 2015 Pretrial is set for 9:00 a.m. on the date specified and at such time each paliy
shall submit the following:
Witness list;
Exhibit list;
Proposed "Charge ofthe Court" ready for submission lo the jury, along with
an electronic copy in Microsoft Word fonnar on flosh drive;
Motion in Limine;
Deposition designations; Eind
Concise written statement of significant legal and/or e'Yidenti&ry issue$.

Februarv 16,2015 "J>aper" Discovery Deadline. All oUigoing · "paper" discovery, including
interrogatories, requests for production, requests for admission, requests for
disclosm·e, etc,, must be served upon opposing counsel on or before the date
specified,

February 16. 2015 Deposition Deadline. All depositions must be concluded by the date specified.

Februacy 16,2015 Designation of Responsible Third Parties. Responsible third pm1ies must be
designated on or before the date specified.

JlUinacy 16, 2015 Deadline for Adding or Joining New Parties. New parties must be added or
joined on or before the date specified,

December 15, 2014 Amended Pleadings. Amended pleadings must be filed on or before the date
specified,
(
 RECEIVED 10/03/2014 03:24PM 9035575998 RAY AND THATCHER
Oct. 3. 2014 3:39PM ( No. 1594 P. 2/3

2
( March 16,2015 Summary Judgment Motions. Summary Judgment Motions must be filed on or
before the date specified.

Janna1y 16,2015 l:'laintlff's Expert Witness Designation Date. (See below)

Febma1y 16,2015 Defendant's Expert Witness Designation Date. (See below)

Each Plaintiff must comply with the following on or before Plaintiff's Expert
Witness Designation Date. Each defendant must comply with the following on
OJ' before Defendant's Expert Witness Designation Date:

As to all of Plaintiff's and Defendant's testifying experts- se1·ve upon the attorneys of record:

l. the expert S name, address. and telephOne number;
1

2. the subject maftet· on which the expeJ1 will testify; (3) the general substance of the
expert's mental impressions and opinions, find a brief summary of the basis for them (or
if the eXpert is not retained by, employed by, or otherwise subject to
l='laintifrs/Defendant's control- docum¢n($ reflecting such information).

Additionally, as to ~II ofPfainlitrs/Defendant's testifying expe11s who are retained by, employed
by, or otherwise subject to the control ofPiaintifi!Defendant- &erve upon the attorneys ofrecord:

I. all documents, tangible things, reports, models, or data compilations that have been
provided to, reviewed by, or prepared by or for the expert in anlicipalion of the expert's
( testimony; und

2. the expert's current resume and bibliography.
May6.20l5 Mediation Deadline, IT IS ORDERED that mediation shall occur on or
before the specified date. STEVE WATiaNS is appointed mediator in the above case.
Counsel are directed to contact the mediator to an-ange the logistics of mediation within
5 days from the date of this Order. Any objection to this Order must be filed and served
upon all patties and the mediator, and a hearing must be requested within I0 days fl·om
the date of receipt ofU1is Order. An objection that is neither timely filed nor ruled upon
before the scheduled mediation may be waived.
STEVE WATKINS, ESQ- Mediatol'
POBOX876
GREENVILLE, TX 75403-0876
VOlCE (903) 454-6688 FAX (903) 454-1772
A reasonable mediation fee shall be allocated among the paliies as determined to
be fair by the mediator, and each paJ1y to the lawsuit shall have an individual
personally present for mediation with full settlement authority.

NIA Othel' Agreed Upon Deadline. Inseli in the blank "N/A" if not applicable;
otherwise, describe as follows:

(
 RECEIVED 10/03/2014 03:24PM 9035676998 RAV AND THATCHER
Oct. 3. 2014 3:40PM .· No. 1594 P. 3/3

3
(
The trial com·t nsenres the dght to impose sanctions for failure to comply with the
terms of this Order.

SIGNED AND ENTERED ONTIDS _3_ day of ~ , zolf

Attorney lnformatioll
lla?rl
Name: Richard L. Ray
Address: Ray & Thatcher, Attomeys at Law, P.C,
300 S. Trade Days Blvd., Canton, Texas 75!03
Phone & Fax: (903)567-2051/ (903)567-6998/ rlray@rayandthatcher.com

Name: Martin R. Bennett
Address: Kugle, Skelton & Bennett, P.C.
(
130 East Corsicana, Suite 302, Athens, Texas 75751
Phone & Fax: (903)675-5151/ (903)677-4950 I mbennett@ksbpc.com

(
 'l
1-SEco · _.
J~ SOCIAL SECURI'ft( ill\1INISTRATION
:tl~usA'\\:
\ ll!IIJI
"\'JST~i"-
J Refer To: Office of Disability Adjudication and Review
Suite 500
Ounld1am Joe Deuanxayasane 12790 Merit Dr.
Dallas, TX 7 5251
Tel: (866)331-7135/ Fax: (972)341-5153
•••
• March 12,2015
••
••
Ounldmm Joe Deuanxayasane
706 Lawrence
Terrell, TX 75160

NOTICE OF HEARING

Please bring this notice of bearing with you to the hearing.

I have scheduled your hearing for:

Day: Tuesday Date: May 12,2015 Time: 10:00 AM
Central (CT)

Room: l Address: 12790 Merit Dlive
Suite 500
Dallas, TX75251
(
It Is Important That You Attend Your Hearing

I have set aside this time for you to tell me about your case. If you do not attend the hearing
and I do not find that you have a good reason, I may dismiss your request for hearing. I may
do so without giving you further notice.

You may ask us if you want to appear by telephone. I will grant your request ifl find that
extraorclinmy circumstances prevent you from appem·ing in person or by video
teleconferencing.

You must bring valid picture identification (ID) to your hem·ing. Examples of acceptable
picture ID include a:

• Current and valid U.S. State driver's license;
• .U.S. State-issued identity card;
• Current U.S. passport; or

Form HA-83 (09-2014)
Representative
Suspect Social Security Fraud?
Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotliue
at 1-800-269-0271 (TTY 1-866-501-2101).

See Next Page
 l>-\. seo0 · ,
~~SOCIAL SECURITY DMINISTRATION
\ III!IJii Refer To:
4\r.(st~t'-
Office of Disability Adjudication and Review
Suite 500
Patricia Lym1 Martin 12790 Merit Dr.
Dallas, TX 75251
Tel: (866)331-7135 /Fax: (972)341-5153

March 12,2015

•• Patricia Lym1 Martin
•= 708 Tupuna Dr
• Tool, TX75143
•'
•' NOTICE OF HEARING
;'
Please bring this notice of hearing "ith yon to the hearing.
'•
l
· I have sched\lled your hearing for:
•Day: Tuesday Date: May 12,2015 Time: I 0:45AM
Central (CT)

Room: 3 Address: 12790 Merit Drive
Suite 500
Dallas, TX 75251
(
It Is Important That Yon Attend Your Hearing

I have set aside this time for you to tell me about your case. If you do not attend the hearing
and I do not find that you have a good reason, I may dismiss your request for hearing. I may
do so without giving you further notice.

You may ask us if you want to appear by telephone. I will grant your request ifi find that
extraordinary circumstances prevent yon f:i-otn appearing in person or by video
teleconferencing.

You must bring valid picture identification (ID) to your hearing. Examples of acceptable
picture ID include a:

• Current and valid U.S. State driver's license;
• U.S. State-issued identity card;
• Current U.S. passport; or

FonnHA-83 (09-2014)
Representative
Suspect Social Security Fraud?
Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotline
at 1-800-269-0271 (TTY 1-866-501-2101).

See Next Page
 ~\. $.Ec:o
g/;p~ SOCIAL SECURITY TJMINISTRATION
Jl'tisX'\\: ·
·· ~,;l·lfiiii,J Refer To: Office of Disability Adjudication and Review
<~'Is">'. 1wn 'J' p 1
Suite 500
Joe Paul Hicks 12790 Merit Dr.
Dallas, TX 75251
Tel: (866)331-7135/ Fax: (972)341-5153
••
• March 12,2015

Joe Paul Hicks
1487 Fm751
•• Wills Point, TX 75169
i

••
i
NOTICE OF HEARING
!
i
Please bring this notice of hearing with you to the heru·ing.
•
~
i I have scheduled your hearing for:

~ Day: Tuesday May 12,2015 Time: 11 :30 AM
i
Date:
Central (CT)

Room: 3 Address: 12790 Merit Drive
Suite 500
Dallas, TX 75251
(
'
· It Is Important That You Attend Your Hearing

I have set aside this time for you to tell me about your case. If you do not attend the hearing
and I do not find that you have a good reason, I may dismiss your request for hearing. I may
do so without giving you further notice.

You may ask us if you want to appear by telephone. I will grant your request ifi find that
extraordinary circumstances prevent you from appearing in person or by video
teleconferencing.

You must bring valid picture identification (ID) to your hearing. Examples of acceptable
picture ID include a:

• Current and valid U.S. State driver's license;
• U.S. State-issued identity card;
• Current U.S. passport; or

Form HA-83 (09-2014)
Representative ,
(' =- Suspect Social Security Fraud?
·-- Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotline
at 1-800-269-0271 (TTY 1-866-501-2101).

See Next Page