ACCEPTED
07-14-00398-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/11/2015 4:02:23 PM
Vivian Long, Clerk
NO: 07-14-00398-CV
_____________________________________________________
FILED IN
7th COURT
IN THE COURT OF APPEALS FOR THE SEVENTH OF APPEALS
DISTRICT
AMARILLO, TEXAS
5/11/2015 4:02:23 PM
OF TEXAS, AT AMARILLO, TEXAS VIVIAN LONG
CLERK
EXPELLED GRAIN PRODUCTS, LLC, and SCOTT THEIRING
Appellants
V.
Corn Mill ENTERPRISES, LLC
Appellee
APPELLANT EXPELLED GRAIN PRODUCTS, LLC’S UNOPPOSED
MOTION TO EXTEND TIME TO FILE SUPPLEMENT TO
APPELLANT’S BRIEF TO ALLOW APPELLANT 14-DAYS FROM THE
FILING OF THE REPORTER’S RECORD
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Pursuant to Texas Rule of Appellate Procedure
35.3(c), Appellant Expelled Grain Products, LLC files
this Unopposed Motion to Extend Time to File
Supplement to Appellant’s Brief to Allow Appellant
14-days from the Filing of the Reporter’s Record,
which motion complies with Rule 10.5(b), and in
support thereof would respectfully show as follows:
1. The Reporter’s Record was late-filed today,
May 11, 2015, pursuant to leave of the Court as
requested by the court reporter.
2. The Court had previously granted leave for
the Reporter’s Record to be late-filed and for
Appellant to file a supplement to Appellant’s Brief,
as requested by Appellant, within 14-days of the
reporter’s record being filed but no later than
today, May 11, 2015.
3. Appellant promptly ordered and paid for the
reporter’s record pursuant to the Court’s order
granting leave to late-file and supplement
Appellant’s Brief. The delay in obtaining and filing
the Reporter’s Record occasioned by the Reporter’s
subsequent request to the Court was not anticipated
but certainly understandable and no fault of the
Reporter.
4. Appellant requests an extension of time to
allow Appellant to review the thirty volumes of the
Reporter’s Record received this day and to prepare
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its briefing supplement. Appellant seeks a 14-day
extension until May 25, 2015.
5. This is an appeal from a final judgment in
Cause No. A9678-1311; Corn Mill Enterprises, LLC v.
Expelled Grain Products, LLC; In the 64th Judicial
District Court of Castro County, Texas.
6. The reporter’s record was originally due on
December 3, 2014.
7. On December 4, 2014, the Court granted an
extension of time to file the reporter’s record until
January 2, 2015.
8. On December 5, 2015, the Court granted the
parties’ joint request for an abatement of this
appeal so the parties could mediate.
9. On December 17, 2015, the Court reinstated
this appeal when the parties’ mediation was
unsuccessful. At that time the Court set the date
for the reporter's record to be filed for January 20,
2015.
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10. On February 5, 2015, the Court deemed the
reporter’s record filed as of that date and noted
that “Notwithstanding a deadline for Appellant’s
brief, this Court may still allow the late filing of
a reporter’s record pursuant to Rule 35.3(c). In the
absence of a complete or partial reporter’s record
being filed, any issues that require a missing record
will not be considered.”
11. The court reporter estimated that the
reporter’s record in this Appeal would cost $12,000
or more.
12. Appellant Expelled Grain Products, LLC did
not have funds sufficient to pay for the reporter’s
record timely. Once Expelled obtained sufficient
funds to pay for the reporter’s record and forwarded
same to its counsel, Expelled sought the extensions
and leave subsequently granted by the Court on April
7, 2015. Expelled paid the court reporter’s deposit
and then full cost promptly thereafter.
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13. When Expelled requested until May 11, 2015
as the latest it could supplement its brief, Expelled
believed that the reporter’s record would be filed
shortly after the Court granted leave on April 7,
2015.
14. The court reporter then requested another
extension of time from the Court until May 11, 2015,
which the Court granted.
15. Appellant seeks an extension of time to
supplement its Brief on the Merits to within 14-days
of the filing of the reporter’s record, which would
be than Monday, May 25, 2015. This is Appellant’s
first request for extension of time to file its
briefing supplement, which was originally due to be
filed today, May 11, 2015.
16. Appellant Expelled does not seek this
extension for the purposes of delay but only so that
justice may be served.
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PRAYER
For all these reasons, Appellant Expelled Grain
Products, LLC respectfully requests an extension of
time to supplement its Brief on the Merits within 14-
days of today’s filing of the reporter’s record,
which would make the deadline May 25, 2015.
Appellant also requests all such further relief to
which the Court may deem Appellant is entitled.
Respectfully submitted,
/s/ Larry A. Vick
Larry A. Vick
TBA NO. 20563500
The Law Offices of Larry A.
Vick
908 Town & Country Blvd.
Suite 120
Houston, Texas 77024
(713) 333-6440 - Telephone
(832) 202-2821 – Telecopier
lv@larryvick.com
Attorney for Appellant Expelled
Grain Products, LLC
Date: May 11, 2015
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CERTIFICATE OF CONFERENCE:
I certify that I conferred with counsel for Appellee
Corn Mill Enterprises, LLC and with counsel for
Appellant Scott Theiring who stated this motion is
unopposed.
/s/ Larry A. Vick
Larry A. Vick
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3
and 9.5(b), (d), (e), I certify that I have served
this document on all other parties, which are listed
below on May 11, 2015 as follows:
George F. May
TWOMEY | MAY, PLLC
2 Riverway, 15th Floor
Houston, Texas 77056
Attorney for Appellant-Intervenor Scott Theiring
Matt Sherwood
UNDERWOOD LAW FIRM
500 South Taylor, Suite 1200
Amarillo, Texas 79101
Attorney for Appellee Corn Mill Enterprises, LLC
By (check all that apply)
personal delivery
mail
commercial delivery service
X fax, email, or electronic
service
/s/ Larry A. Vick
Larry A. Vick
Date: May 11, 2015
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