Jay Cohen v. Tour Partners, LTD., Dennis J. Wilkerson, and Eighteen Investments, Inc.

ACCEPTED
01-15-00705-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/8/2015 1:41:31 AM
CHRISTOPHER PRINE
CLERK

NO: 01-15-00705-CV

IN THE FILED IN
1st COURT OF APPEALS
FIRTST DISTRICT COURT OF APPEALS OF TEXASHOUSTON, TEXAS
AT HOUSTON, TEXAS 12/8/2015 1:41:31 AM
CHRISTOPHER A. PRINE
Clerk

JAY COHEN,

Appellant

v.

TOUR PARTNERS, LTD., DENNIS J. WILKERSON,
AND EIGHTEEN INVESTMENTS, INC.

Appellees

On appeal from the 55th Judicial District Court of Harris County, Texas
Trial Court Cause No. 2013-68181

APPELLANT’S OPPOSED FIRST MOTION FOR 25 DAY EXTENSION OF
TIME, FILED CONTEMPORANEOUSLY WITH APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Pursuant to Texas Rule of Appellate Procedure 38.6(d), Appellant files this

his First, Opposed, Motion for 25-day Extension of Time, which is filed

contemporaneously with his Appellant’s Brief. This motion complies with Rule

10.5(b) and, in support thereof Appellant respectfully shows the Court as follows:

1. This is an appeal from the final summary judgment, which became

final on May 20, 2015, in favor of Third Party Plaintiff Tour Partners, Ltd., and

Crossclaim Defendants Dennis J. Wilkerson, and Eighteen Investments, Inc. and
against Third Party Defendant Mr. Cohen. The now-final judgment was

interlocutory when signed by the 55th Judicial District Court on January 23, 2015,

but became final when the only remaining claims in the case were ordered non-

suited by the trial court’s May 20, 2015 order.

2. Mr. Cohen was joined as a third party by Tour Partners, Ltd. after the

discovery period had expired along with other scheduling deadlines. The trial

court refused to extend discovery and denied and refused to rule upon Mr. Cohen’s

motions to continue summary judgment and trial to allow him to participate in the

discovery process. Mr. Cohen is also appealing from the trial court’s denial of his

motion for new trial and denial and refusal to rule upon his motions to continue

and to issue a new docket control order and re-open discovery.

3. The original deadline for Appellants Brief was Friday, November 13,

2015. Appellees have filed a motion to dismiss for want of prosecution and the

Court provided notice that no Appellant’s brief had been filed. Appellant seeks a

25-day extension of time for filing his Appellant’s Brief, which has been filed

contemporaneously with this motion for extension. Appellant began filing this

motion and the accompanying Appellant’s brief on December 7, 2015 but

experienced computer difficulties, which were eventually resolved shortly before

midnight. As a result, in an abundance of caution, Appellant is requesting an

extension through December 8, 2015.
 4. This is Appellant’s first motion for an extension of time to file

Appellant’s brief. Appellant brings this motion pursuant to Texas Rules of

Appellate Procedure 38.6(d) and in compliance with Rule 10.5(b).

5. Appellants’ counsel George May is recovering from a health crisis,

and dealing with the side effects of medication, which has delayed unrelated

surgery that is now scheduled for January 7, 2016. Mr. May first fell ill while in

Amarillo for oral argument before the Amarillo Court of Appeals on September 1,

2015 and has, until recently, been forced to limit his work schedule. Appellant’s

counsel George May was unable to complete Appellant’s brief by the November

13, 2015 deadline due to family matters and his illness and treatment, which

temporarily rendered him unable to complete all his professional obligations and to

request that his colleague Lori Twomey assist with the tasks he was unable to

complete. Ms. Twomey has undertaken the tasks her schedule would permit but

was unavailable to assist Mr. May in this appeal.

6. The professional obligations Mr. May was unable to delay or delegate,

include the following:

(1) October 14, 2015 discovery response deadline in Cause 13CV1392;
Amelia V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker;
th
in the 122 District Court of Galveston County, Texas;

(2) October 15, 2015 court ordered mediation in Adversary Case No. 12-
3453; Anderson v. Brundage; in the United States District Court for
the Southern District of Texas, Houston Division;
 (3) Attending and presenting general counsel report at October 19, 2015
annual shareholder’s meeting for corporate client;

(4) October 29, 2015 non-jury trial in 2009-19162; Crosby Independent
School District v. Celestin Chas, et al; in the 80th District Court,
Harris County, Texas;

(5) October 30, 2015 formal Appraisal Review Broad hearing in tax
valuation protest;

(6) November 15 mediation in Cause No. 386,934-401; Thompson v.
Estate of Joekel; In Probate Court No. 3 of Harris County, Texas;

(7) Preparation for three (3) scheduled December non-jury trials in
several tax foreclosure lawsuits in Harris County; the 268th District
Court of Harris County, Texas; and
(8) Hearing in Cause No. 13-CV-1392 in the 122nd District Court of
Galveston County, Texas;

(9) Reply brief due in Case No. 14-15-00443-CV in the Fourteenth Court
of Appeals at Houston, Texas; and

(10) Various other time-sensitive matters for clients.

7. Appellant does not seek this extension for the purposes of delay but

only so that justice may be served. Appellant’s missing the original deadline was

not due to conscious disregard but a result of counsel’s illness and the temporary

work limitations described above. The extension requested is not excessive and

extending the original deadline for Appellant’s brief will not otherwise prejudice

Appellees.

PRAYER

For all these reasons, Appellant respectfully requests a 25-day extension of
time for filing its Appellant’s Brief from Friday November 13, 2015 to Tuesday,

December 8, 2015.

Respectfully submitted,

TWOMEY MAY, PLLC

/s/ George F. May/
_______________________________
George F. May
State Bar No. 24037050
george@twomeymay.com
2 Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000 - Telephone
(832) 201-8485 - Facsimile

Dated: December 8, 2015

CERTIFICATE OF CONFERENCE

I do hereby certify that I Appellees counsel has indicated that Appellees are
opposed to any extension of time and this motion is filed as opposed.

/s/ George F. May/
_______________________________
George F. May
 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 counsel for Appellee as listed below on
December 8, 2015 as follows:

Walter J. Cicack
wcicack@hmgnc.com
HAWASH MEAD GASTON NEESE & CICACK, LLP
2118 Smith Street
Houston, Texas 77002
Telephone: (713) 658-9001
Facsimile: (713) 658-9011

Attorneys for Appellees

By (check all that apply)
personal delivery
mail
commercial delivery service
X fax, email, or electronic service

/s/ George F. May/
George F. May

Date: December 8, 2015