Consolidated Property Interests, LLC v. Penny Payne

Opinion

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 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 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