Earl Anderson, Carrie Bell Scott, Sharon Anderson, Evance Anderson, Bill Burton, Willie Mae Anderson, and Jerry J. Anderson (Smith) v. Robert Louis Durham

Opinion

ACCEPTED 12-15-00169CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/4/2015 1:48:30 PM Pam Estes CLERK

NO. 12-15-00169-CV

IN THE COURT OF APPEALS FILED IN 12th COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF TEXAS TYLER, TEXAS AT TYLER 9/4/2015 1:48:30 PM PAM ESTES EARL ANDERSON, CARRIE BELL SCOTT, SHARON ANDERSON, Clerk EVANCE ANDERSON, BILL BURTON, WILLIE MAE ANDERSON AND JERRY J. ANDERSON (SMITH), Appellants,

V.

ROBERT LOUIS DURHAM AND FRANK L. ZELLERS, III, Appellees ______________________________________________________________

On appeal from the 173RD District Court Henderson County, Texas Trial Court No. 2012A-0662 ______________________________________________________________

APPELLEE’S UNUPPOSED MOTION TO EXTEND TIME TO FILE THE BRIEF

Appellee asks the Court to extend the time to file his brief.

A. Introduction

1. Appellants are Earl Anderson, Carrie Bell Scott, Sharon Anderson, Evance

Anderson, Bill Burton, Willie Mae Anderson and Jerry J. Anderson (Smith); Appellee is Robert

Louis Durham.

2. There is no specific deadline to file this motion to extend. See Tex. R. App. P.

38.6(d).

3. Appellants have no objection to this motion.

B. Argument & Authorities

4. The Court has the authority under Texas Rule of Appellate Procedure 38.6(d) to

extend the time to file the brief.

APPELLEE’S MOTION TO EXTEND TIME TO FILE BRIEF PAGE 1 OF 3 Durham 206444 5. Appellants’ brief was filed on August 10, 2015, however the brief did not comply

with Tex. R. App. P. 9.4(i)(3). The Court provided Appellants until Monday, August 17, 2015 to

forward a supplement to the brief. Appellants did not comply with the August 17, 2015 deadline

and therefore, the Court scheduled the matter for dismissal on September 8, 2015. Appellants

filed their Supplemental Brief on August 31, 2015 along with a Motion to Extend Time to File

Brief, to which Appellee made no objection. The Court granted Appellants’ extension and

deemed Appellants’ brief filed as of August 10, 2015. Appellee’s brief is due on September 9,

2015.

6. Appellee needs additional time to file his brief because, in order to avoid

incurring potentially unnecessary attorney’s fees, Appellee abated preliminary work on the brief

when the clerk notified Appellee that Appellants had failed to timely file a conforming brief.

Appellee’s abatement of preliminary work on Appellee’s brief was justified because Appellants’

noncompliance resulted in the appeal being scheduled for dismissal, which would have obviated

the need for Appellee’s brief.

7. Appellee requests that the Court provide Appellee with the customary 30 days for

preparation of Appellee’s brief from the time of Appellants’ submission of a compliant brief.

Appellee’s request would therefore extend Appellee’s deadline to September 30, 2015.

8. No prior extension has been granted to extend the time to file Appellee’s brief.

C. Conclusion

9. Appellee requests that the Court grant Appellee thirty (30) days for submission of

Appellee’s brief, measured from the date of Appellants’ compliance with the Court’s

requirements. This request would extend the time to submit Appellee’s brief to September 30,

2015.

APPELLEE’S MOTION TO EXTEND TIME TO FILE BRIEF PAGE 2 OF 3 Durham 206444 D. Prayer

10. For these reasons, appellee asks the Court to grant an extension of time to file his

brief until September 30, 2015.

Respectfully submitted,

By: /s/ John J. Cope

COPE LAW FIRM JOHN J. COPE State Bar No. 00785784 9284 Huntington Square, Suite 100 North Richland Hills, Texas 76182 Telephone: (817) 498-2300 Fax: (817) 581-1500

ATTORNEYS FOR ROBERT LOUIS DURHAM

CERTIFICATE OF CONFERENCE

I certify that I have conferred with Lana Johnson by email, and she has agreed and is unopposed to a thirty (30) day extension of time to file Appellee’s brief.

/s/ John J. Cope JOHN J. COPE

CERTIFICATE OF SERVICE

I certify that a copy of Appellee’s Motion to Extend Time to File Brief was served on Appellants, through counsel of record, Lana Johnson, P. O. Box 816325, Dallas, Texas 75381- 6325, Telephone: 903-646-0672, by fax to (866) 447-7148 on September 4, 2015, before 5:00 p.m. local time of the recipient.

/s/ John J. Cope JOHN J. COPE

APPELLEE’S MOTION TO EXTEND TIME TO FILE BRIEF PAGE 3 OF 3 Durham 206444