Expelled Grain Products, LLC and Scott Theiring v. Corn Mill Enterprises, LLC

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 2 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. 3 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. 4 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. 5 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 6 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 7