Consolidated Property Interests, LLC v. Penny Payne

ACCEPTED
12-15-00105-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/23/2015 4:01:14 PM
CATHY LUSK
CLERK

No. __________
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
In the Twelfth Court of Appeals 4/23/2015 4:01:14 PM
Tyler, Texas CATHY S. LUSK
Clerk

CONSOLIDATED PROPERTY
INTERESTS, LLC
Appellant

v.

JERRY PAYNE AND PENNY PAYNE
Appellees

Appealed from the District Court of
Sabine County, Texas

UNOPPOSED MOTION TO EXTEND THE
DEADLINE FOR FILING A NOTICE OF APPEAL

Brent L. Watkins Greg Smith
Texas Bar No. 24033312 Texas Bar No. 18600600
SKELTON SLUSHER BARNHILL RAMEY & FLOCK, P.C.
WATKINS WELLS, PLLD 100 E. Ferguson, Suite 500
1616 S. Chestnut Tyler, Texas 75702
Lufkin, TX 75902-1728 Telephone: 903-597-3301
Telephone: 936-632-2300 Facsimile: 903-597-2413
Facsimile: 936-632-6545 gsmith@rameyflock.com
bwatkins@skeltonslusher.com

ATTORNEYS FOR APPELLANT
TO THE HONORABLE COURT OF APPEALS:

Consolidated Property Interests, LLC seeks leave to extend the deadline for

filing its notice of appeal. The requested relief is proper under Rules 10.5 and 26.3 of

the Texas Rules of Appellate Procedure.

1. On March 13, 2015, the District Court of Sabine County, the Honorable

Charles Mitchell, signed a judgment in that Court’s cause No. 12,827. A copy of that

judgment is attached.

2. On April 1, 2015, the undersigned completed and mailed a request for findings

of fact and conclusions of law. The request was properly addressed, with proper

postage affixed. Copies of the Request for Findings, the letter transmitting it, and the

certificate of mailing evidencing its proper and timely mailing are attached.

3. Opposing counsel promptly received the request for findings. But the original

document did not arrive at the district clerk’s office until April 16. The document has

since been filed, with a file-stamp of April 16. See attached. While the request for

findings was timely and properly mailed, it is not eligible for the mailbox rule owing to

the sixteen-day delay in its arrival at the district clerk’s office.

4. Because the request for findings cannot be deemed to have been timely filed,

the trial court’s plenary power over the March 13 judgment appears to have expired

and the ordinary, 30-day deadline for filing the notice of appeal controls.

Consequently, absent relief from this Court the time for appealing will have lapsed as

Unopposed Motion to Extend the Deadline for Filing a Notice of Appeal Page 2
of Monday, April 13 – four days before Consolidated’s counsel first learned the request

for findings had not been timely received/filed.

5. Consolidated desires to appeal the March 13 judgment. To this end, it has filed

a notice of appeal in the district court. A file-marked copy of the notice of appeal is

attached. For the notice of appeal to be considered timely, this Court must grant an

extension of the notice-of-appeal deadline.

Information Required
Under Rule 10.5(b)

6. The information required of a motion to extend the notice-of-appeal deadline,

under Rule 10.5(b)(2), is as follows:

a. The notice of appeal was initially due April 13.

b. The trial court is the District Court of Sabine County.

c. The appealed judgment was signed March 13, 2015.

d. The judgment was issued in Cause No. 12,827, Consolidated Property

Interests, LLC v. Jerry and Penny Payne.

e. The notice of appeal has been delivered to and filed by the district clerk

as of Wednesday, April 22.

f. The reason an extension is needed is generally as stated above: Despite

having timely prepared and timely mailed a proper request for findings

of fact and conclusions of law, the request arrived at the district court

sixteen days later, too late to be considered valid. Consequently, the

Unopposed Motion to Extend the Deadline for Filing a Notice of Appeal Page 3
 extended appellate timetable, under which counsel had calendared the

notice-of-appeal deadline, was not triggered. Counsel did not learn of

this until Friday, April 17 – four days after the ordinary, 30-day notice-

of-appeal deadline had passed. The failure to file a notice of appeal

within the unextended deadline was not intentional, but was solely due

to the failure of the request for findings to reach the district clerk within

the 10-day period triggering the mailbox rule.

g. The notice of appeal was filed in the trial court yesterday, within 15 days

after the initial deadline. This motion is timely, and authorizes this Court

to grant an extension of the notice-of-appeal deadline, because it is filed

within 15 days after the initial deadline for filing a notice of appeal. See

TEX. R. APP. P. 26.3 & 10.5(b).

Conference

Opposing counsel, who has been provided a draft copy of this motion, states

that the motion is not opposed.

WHEREFORE, PREMISES CONSIDERED, Consolidated requests that the

Court would extend the time for filing its notice of appeal to and including

Wednesday, April 22, the date the notice of appeal was tendered to the Sabine County

district clerk. Consolidated further requests all other relief this motion may authorize.

Unopposed Motion to Extend the Deadline for Filing a Notice of Appeal Page 4
 Respectfully submitted,

RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500
Tyler, Texas 75702
903-597-3301
903-597-2413 – Fax

/s/Greg Smith
GREG SMITH
State Bar No. 18600600
gsmith@rameyflock.com

BRENT L. WATKINS
State Bar No. 24033312
SKELTON SLUSHER BARNHILL
WATKINS WELLS, PLLC
1616 S. Chestnut
Lufkin, TX 75902-1728
Telephone: (936) 632-2300
Facsimile: (936) 632-6545
bwatkins@skeltonslusher.com

Attorneys for Appellant

CERTIFICATE OF SERVICE

A true copy of this motion was forwarded to the following counsel of record

by e-filing on this the 23rd day of April, 2015:

katiecmorgan@yahoo.com
Mr. John H. Seale
SEALE STOVER & BISBEY
P. O. Box 480
Jasper, TX 75951

/s/Greg Smith
GREG SMITH

Unopposed Motion to Extend the Deadline for Filing a Notice of Appeal Page 5