Edom Corner, LLC and Earl Berry, Jr. v. It's the Berry's, LLC

Opinion

ACCEPTED 12-14-00365-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 5/6/2015 11:21:17 AM CATHY LUSK CLERK

NO. 12-14-00365-CV FILED IN 12th COURT OF APPEALS EDOM CORNER, LLC and § IN THE COURT TYLER, TEXAS EARL A. BERRY, JR. § 5/6/2015 11:21:17 AM § CATHY S. LUSK VS. § OF APPEALS Clerk § IT’S THE BERRYS, LLC § d/b/a TWELFTH APPELLATE MARY ELLEN’S § DISTRICT

THIRD MOTION TO EXTEND TIME TO FILE APPELLANTS’ BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

Now comes Edom Corner, LLC and Earl A. Berry, Jr., Appellants in the above

styled and numbered cause, and moves this Court to grant an extension of time to

file Appellants’ brief, pursuant to Rule 38.6 of the Texas Rules of Appellate

Procedure, and for good cause shows the following:

1. This case is on appeal from the 294th Judicial District Court of Van

Zandt County, Texas.

2. The case below was styled It’s the Berrys, LLC d/b/a Mary Ellen’s v.

Edom Corner, LLC and Earl A. Berry, Jr., Cause No. 09-00138 in the 294th Judicial

District Court of Van Zandt County, Texas.

3. Judgment in favor of Plaintiff was entered by the Trial Court on

October 14, 2014. A Motion for New Trial was filed on November 6, 2014.

4. Notice of appeal was given on December 29, 2014.

5. The clerk's record was filed on February 24, 2015; the reporter's record

was filed on February 11, 2015.

6. The Appellants’ brief is presently due May 4, 2015.

7. Appellants request an extension of time of two (2) days from the present

date.

8. Two extensions to file the brief has been received in this cause.

9. Appellants rely on the following facts as good cause for the requested

extension:

Appellants’ attorney, Katherine A. Ferguson, shows that she was attempted to

file the brief at 12:23:12 PM on May 4, 2015. The brief was rejected due to

insufficient electronic signature. Appellant was not aware until early morning of

May 6, 2015 that the filing had not been accepted. Appellant attempted to refile,

and was successful in submitting the brief on May 6, 2015 at 8:28:31 AM.

Appellants’ attorney has conferred with Larry M. Lesh, counsel for Appellee,

and Larry M. Lesh stated he did not object to the brief being filed on May 6, 2015

and that his client has not suffered a material injury by the late filing.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court grant this Second Motion to Extend Time to File Appellant's Brief, and for

such other and further relief as the Court may deem appropriate.

Respectfully submitted,

RENSHAW, DAVIS & FERGUSON, LLP

By: /s/ Katherine A. Ferguson Katherine A. Ferguson (SBN 06918050)

2900 Lee Street, Suite 102 P.O. Box 21 Greenville, Texas 75403-0021 Tel: (903) 454-6050 Fax: (903) 454-4898 Email: rdflawoffice@yahoo.com Lead Counsel for Appellants

CERTIFICATE OF SERVICE

This is to certify that on May 6, 2015, a true and correct copy of the above and foregoing document was served on the following by facsimile:

Larry M. Lesh, Esq. 1 Forest Park Drive Richardson, Texas 75080 FAX: (972) 699-1456

R. Paul Elliot, Esq. 301 S. Main St. Canton, Texas 75103 FAX: (903) 567-6228 /s/ Katherine A. Ferguson Katherine A. Ferguson

CERTIFICATE OF CONFERENCE

This is to certify that on May 6, 2015, the undersigned spoke by telephone with Larry M. Lesh, lead counsel for Appellee It’s the Berry’s, LLC d/b/a Mary Ellen’s. Mr. Lesh stated that he did not oppose a two (2) day extension of the deadline for Appellants’ Brief.

/s/ Katherine A. Ferguson Katherine A. Ferguson