Antioch St. Johns Cemetery Company D/B/A American Memorial Park, Grand Prairie, Texas Gerald Weatherall And Beverly Randall-Weatherall v. Texas Department of Banking Commissioner

Opinion

ACCEPTED 03-15-00341-CV 7253639 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/6/2015 3:01:01 PM JEFFREY D. KYLE CLERK IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS AT AUSTIN FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/6/2015 3:01:01 PM ANTIOCH ST. JOHNS CEMETERY § JEFFREY D. KYLE COMPANY d/b/a AMERICAN § Clerk MEMORIAL PARK, GRAND PRAIRIE, § CAUSE NO. 03-15-00341-CV TEXAS, GERALD WEATHERALL and § BEVERLY RANDALL-WEATHERALL § Plaintiffs/Petitioners § ON APPEAL FROM THE § 261st JUDICIAL DISTRICT v. § TARRANT COUNTY § COURTS § (No. D-1-GN-14-000367) THE TEXAS DEPARTMENT OF § BANKING COMMISSIONER § Defendant/Respondent §

APPELLANTS’ MOTION FOR LEAVE TO FILE LATE BRIEFING

TO THE HONORABLE COURT:

Pursuant to Tex. R. App. P. 38.6(a), briefing on the Appeal submitted by

Antioch St. Johns Cemetery Company d/b/a American Memorial Park, Grand

Prairie, Texas, Gerald Weatherall, and Beverly Randall-Weatherall (the

“Appellants”), was due on September 14, 2015.

Appellants submit this Motion to file their briefing this day, October 1, 2015,

as the late filing was not due to conscience indifference, neglect or disregard for the

rules of procedure. Rather, Appellants’ counsel was expecting a notice from the

APPELLANTS’ MOTION FOR LEAVE PAGE - 1 Appellant Court that briefing would be due on certain date and did not realize that

such notice would not be stemming from the Court until receiving the notice of late

filing on September 21, 2015.

Apparently, and according to the appeals court clerk, notice of the clerk’s

filing of the record from the trial court filed on August 15, 2015, had been delivered

via email to the Appellants’ counsel. However, Appellants’ counsel either

inadvertently deleted the email notice or same did not come through the email

address. For these reasons, Appellants’ seek leave of this Court to file the briefing

contemporaneously with this Motion. Appellants would further submit that the

Appellee has not been prejudiced by the filing since the issues in this matter are

simplified with a limited amount of facts to review on the record. Finally, pursuant

to the certificate of conference herein, leave should be granted as Appellees have no

objection to the request for extension to file Appellants briefing.

WHEREFORE, PREMISES CONSIDERED, Appellants pray that the Court

grant leave to for Appellants to file late briefing, and for all other and further relief

to which Appellants may be entitled.

APPELLANTS’ MOTION FOR LEAVE PAGE - 2 Respectfully Submitted by: THE LAW OFFICES OF KEVIN S. WILEY, JR.

/s/ Kevin S. Wiley, Jr._____________ Kevin S. Wiley, Jr. Texas State Bar No. 24029902 325 N. St. Paul Street, Suite 4400 Dallas, Texas 75201 Tel.: 469-619-5721 Fax.: 469-619-5725 kevinwiley@lkswjr.com ATTORNEY FOR APPELLANTS

CERTIFICATE OF CONFERENCE I hereby certify that on September 29, 2015, I conferred with Appellee’s counsel of record, Ann Hartley, regarding the relief requested in this Motion, and Ms. Hartley indicated that she has no objection to same.

/s/ Kevin S. Wiley, Jr._____

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Leave has been served on the Banking Commission by and through their counsel of record below on this 6th day of October, 2015 via electronic mail to the parties listed below.

Ann Hartley Assistant General Counsel Texas Department of Banking Ann.hartley@texasattorneygeneral.com 2601 N. Lamar Blvd. Austin, Texas 78705

/s/ Kevin S. Wiley, Jr.

APPELLANTS’ MOTION FOR LEAVE PAGE - 3