City of New Braunfels, Texas v. Tourist Associated Businesses of Comal County Union River LLC D/B/A Landa River Trips Chuck's Tubes Waterpark Management, Inc. Tri-City Distributors, LP Stone Randall Williams And W. W. GAF, Inc. D/B/A Rockin "R" River Rides

Court of Appeals of Texas

City of New Braunfels, Texas v. Tourist Associated Businesses of Comal County Union River LLC D/B/A Landa River Trips Chuck's Tubes Waterpark Management, Inc. Tri-City Distributors, LP Stone Randall Williams And W. W. GAF, Inc. D/B/A Rockin "R" River Rides

Court of Appeals of Texas·Decided January 26, 2015·No. 03-14-00198-CV·Published

Opinion

ACCEPTED 03-14-00198-CV 3904930 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/26/2015 4:47:53 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00198-CV

CITY OF NEW BRAUNFELS, TEXAS, § IN THE COURT OF FILED APPEALS IN Appellant, § 3rd COURT OF APPEALS § AUSTIN, TEXAS v. § 1/26/2015 4:47:53 PM § JEFFREY D. KYLE STOP THE ORDINANCES, PLEASE; § Clerk W.W.GAF, INC., D/B/A ROCKING' R § THIRD DISTRICT OF TEXAS RIVER RIDES; TEXAS TUBES; TOURIST § ASSOCIATED BUSINESSES OF COMAL § COUNTY; UNION RIVER, LLC, D/B/A § LANDA RIVER TRIPS; CHUCK'S TUBES; § WATERPARICMANAGEMENT,INC.; § TRI-CITY DISTRIBUTORS, LP AND § STONE RANDALL WILLIAMS, § Appellees. § AUSTIN, TEXAS

APPELLEES' MOTION TO RESET ORAL ARGUMENT

TO THE HONORABLE JUSTICES OF SAID COURT:

Appellees ask the Court to reset oral argument.

A. INTRODUCTION

I. Appellant is City of New Braunfels, Texas; Appellees are STOP The Ordinances,

Please; W.W.GAF, Inc., d/b/a Rocking' R River Rides; Texas Tubes; Tourist Associated Businesses

of Coma! County; Union River, LLC, d/b/a Landa River Trips; Chuck's Tubes; Waterpark

Management, Inc.; Tri-City Distributors, LP and Stone Randall Williams.

2. This appeal is scheduled for oral argument on February II, 2015, at I :30 p.m.

3. Appellee has attempted to obtain agreement but Appellant's counsel has not been

able to agree or disagree with this Motion as of today.

B. ARGUMENT & AUTHORITIES

4. The Court has the authority under Texas Rule of Appellate Procedure 10.5( c) to reset

oral argument.

Page 1 of 4 5. Appellees ask the Court to reset oral argument in this case because Appellees' lead

attorney, James B. Ewbank, II, cannot attend oral argument on the date presently scheduled for

argument.

6. On the date scheduled for argument, James B. Ewbank, II, is scheduled to be in trial

as lead counsel in the Court of Common Pleas before Judge John A. Enlow, Courtroom #2, in

Portage County, Ohio, Amanda Linna et al v. Robert Lewis et al, Cause No. 2008 CV 01519. A

copy of the Notice of Hearing setting the Civil Jury Trial is attached hereto as Exhibit A-1. This

matter has been set for trial since July 30, 2014. No other attorney is available to take over the trial,

and try the matter as lead counsel, within two weeks.

7. James B. Ewbank, II is the only attorney for Appellees who has been significantly

involved in the extensive and protracted dispute between the patiies since its inception. No other

attorney in the firm is able to m·gue this case because no other attorney is familiar with the history

and detailed facts of the case.

8. Oral argument is necessary for the proper presentation of this case because oral

argument will facilitate the Court's understanding of the complex facts and issues in the case.

9. No motion to reset oral argument has been granted in this case.

10. Appellees attach an affidavit to this motion to establish facts that are not included in

the appellate record, are not lmown to the Court in its official capacity, and are not within the

personal knowledge of the attorney signing this motion. See Affidavit of James B. Ewbank, II,

which is attached hereto as Exhibit A. Tex. R. App. P. 10.2.

C. PRAYER

11. For these reasons, Appellees ask the Cou1i to grant this motion and to reschedule the

oral argument in this case.

Page 2 of 4 Respectfully submitted,

COKINOS, BOSIEN & YOUNG 121 0 Nueces St. Austin, Texas 78701 (512) 476-1080 (Office) (512) 476-7770 (Fax)

By h/~$. 8~ ## JAMES B. EWBANK II State BarNo. 06752710 jewbank@cbylaw.com JACK QUENTIN NICHOLS State Bar No. 24002692 jnichols@cbylaw.com

ATTORNEYS FOR APPELLEES

CERTIFICATE OF CONFERENCE

On January 26, 2015, the undersigned counsel attempted to conferred with William M. McKamie, counsel for Appellant who indicated that he is unable to agree or disagree as to this motion.

JAMES B. EWBANK, II

Page 3 of 4 CERTIFICATE OF SERVICE

I hereby certify that on January a. In-\L , 2015, I served a copy of Appellees' Motion to Reset Oral Argument on the parties listed below by electronic service and that the electronic transmission was reported as complete. My email address is jewbank@cbylaw.com.

ATTORNEYS FOR APPELLANT William M. McKamie MCKAMIE KRUEGER, LLP 941 Proton Road San Antonio, Texas 78258 (210) 546-2122 (Office) (21 0) 546-2130 (Fax) mick@mckamiekmeger.com

JAMES B. EWBANK, II

Page 4 of 4 CAUSE NO. 03-14-00198-CV

CITY OF NEW BRAUNFELS, TEXAS, § IN THE COURT OF APPEALS Appellant, § § v. § § STOP THE ORDINANCES, PLEASE; § W.W.GAF, INC., D/B/A ROCKING' R § THIRD DISTRICT OF TEXAS RIVER RIDES; TEXAS TUBES; TOURIST § ASSOCIATED BUSINESSES OF COMAL § COUNTY; UNION RIVER, LLC, D/B/A § LANDA RIVER TRIPS; CHUCK'S TUBES; § WATERPARI(MANAGEMENT, INC.; § TRI-CITY DISTRIBUTORS, LP AND § STONE RANDALL WILLIAMS, § Appellees. § AUSTIN, TEXAS

AFFIDAVIT OF JAMES B. EWBANK, II IN SUPPORT OF APPELLEES' MOTION TO RESET ORAL ARGUMENT

STATE OF TEXAS § § COUNTY OF TRAVIS §

BEFORE ME, the undersigned authority, on this day personally appeared James B. Ewbank,

II, a person !mown to me, who, after being duly sworn, stated and deposed as follows:

"My name is James B. Ewbank, II. I am over twenty-one (21) years of age, have never been convicted of a felony, and am competent to make this affidavit. All the matters stated herein are true and correct within my personallmowledge.

"I am lead counsel for Appellees in the above-numbered and titled cause. The parties to this cause have a long histoty of evolving and protracted litigation. I have been representing Appellees in parallel matters involving the same or similar disputes between the parties since 2007. This appeal is just one part of ongoing and complex litigation. I believe that due to the complex issues involved in the appeal, oral argument is essential.

"On January 22, 2015, I received notification that the above-titled and numbered cause had been set for submission and oral argument on February 11, 2015.

Page 1 of 2 EXHIBIT A "I am currently set for trial in Ohio as lead counsel in the case of Amanda Linna et al v. Robert Lewis et al, Cause No. 2008 CV 01519, Enlow, Courtroom #2, in Potiage County, Ohio on February 9, 2015. Exhibit I. That trial date was set over six months ago, on July 30, 2014. Exhibit I. A copy of the notice of hearing is attached hereto as Exhibit I and is incorporated for all purposes.

"I am the only counsel for the Defendant in the case who is sufficiently familiar with the facts and issues presented to tty the case. There have not been any motions for continuance filed and none are anticipated. The case has been pending for a significant amount of time and is ready to be heard. I anticipate that the trial will last two weeks, beginning on February 9, 2015 and ending on February 20, 2015.

"This is Appellees' first Motion to Reset Oral Argument. This request is not for delay only, but so that justice may be done."

FURTHER AFFIANT SAYETH NOT. \ I JAMES B. EWBANK, II

SUBSCRIBED AND SWORN TO BEFORE ME by the saidJames B. Ewbank, II on this dJ,--\\..... day of January, 2015.

LOIS E. GARDNER MY COMMISSION EXPIRES September 18,2015

Page 2 of 2 FILED COURT OF COMMON PLEAS

30 July 20I4

LINDA K. FANKHAUSER, CLERK PORTAGE COUNTY, OHIO

JAMES EWBANK AUSTIN TX 78701

NOTICE OF HEARING

AMANDA LINNA et a! CASE: 2008 CV 01519

PLAINTIFF

vs.

ROBERT LEWIS eta! DEFENDANT

CIVIL JURY TRIAL IN THE ABOVE ENTITLED CASE HAS BEEN SCHEDULED

ON February 09, 2015 AT 8:30am BEFORE JUDGE JOHN A ENLOW,

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