Expelled Grain Products, LLC and Scott Theiring v. Corn Mill Enterprises, LLC

• Court: Court of Criminal Appeals of Texas
• Decided: May 11, 2015
• Docket: 07-14-00398-CV
• Status: Published

Opinion

ACCEPTED 07-14-00398-CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 5/11/2015 4:02:23 PM Vivian Long, Clerk

NO: 07-14-00398-CV _____________________________________________________ FILED IN 7th COURT IN THE COURT OF APPEALS FOR THE SEVENTH OF APPEALS DISTRICT AMARILLO, TEXAS 5/11/2015 4:02:23 PM OF TEXAS, AT AMARILLO, TEXAS VIVIAN LONG CLERK

EXPELLED GRAIN PRODUCTS, LLC, and SCOTT THEIRING

Appellants V.

Corn Mill ENTERPRISES, LLC

Appellee

APPELLANT EXPELLED GRAIN PRODUCTS, LLC’S UNOPPOSED MOTION TO EXTEND TIME TO FILE SUPPLEMENT TO APPELLANT’S BRIEF TO ALLOW APPELLANT 14-DAYS FROM THE FILING OF THE REPORTER’S RECORD

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Pursuant to Texas Rule of Appellate Procedure

35.3(c), Appellant Expelled Grain Products, LLC files

this Unopposed Motion to Extend Time to File

Supplement to Appellant’s Brief to Allow Appellant

14-days from the Filing of the Reporter’s Record,

which motion complies with Rule 10.5(b), and in

support thereof would respectfully show as follows: 1. The Reporter’s Record was late-filed today,

May 11, 2015, pursuant to leave of the Court as

requested by the court reporter.

2. The Court had previously granted leave for

the Reporter’s Record to be late-filed and for

Appellant to file a supplement to Appellant’s Brief,

as requested by Appellant, within 14-days of the

reporter’s record being filed but no later than

today, May 11, 2015.

3. Appellant promptly ordered and paid for the

reporter’s record pursuant to the Court’s order

granting leave to late-file and supplement

Appellant’s Brief. The delay in obtaining and filing

the Reporter’s Record occasioned by the Reporter’s

subsequent request to the Court was not anticipated

but certainly understandable and no fault of the

Reporter.

4. Appellant requests an extension of time to

allow Appellant to review the thirty volumes of the

Reporter’s Record received this day and to prepare

2 its briefing supplement. Appellant seeks a 14-day

extension until May 25, 2015.

5. This is an appeal from a final judgment in

Cause No. A9678-1311; Corn Mill Enterprises, LLC v.

Expelled Grain Products, LLC; In the 64th Judicial

District Court of Castro County, Texas.

6. The reporter’s record was originally due on

December 3, 2014.

7. On December 4, 2014, the Court granted an

extension of time to file the reporter’s record until

January 2, 2015.

8. On December 5, 2015, the Court granted the

parties’ joint request for an abatement of this

appeal so the parties could mediate.

9. On December 17, 2015, the Court reinstated

this appeal when the parties’ mediation was

unsuccessful. At that time the Court set the date

for the reporter's record to be filed for January 20,

2015.

3 10. On February 5, 2015, the Court deemed the

reporter’s record filed as of that date and noted

that “Notwithstanding a deadline for Appellant’s

brief, this Court may still allow the late filing of

a reporter’s record pursuant to Rule 35.3(c). In the

absence of a complete or partial reporter’s record

being filed, any issues that require a missing record

will not be considered.”

11. The court reporter estimated that the

reporter’s record in this Appeal would cost $12,000

or more.

12. Appellant Expelled Grain Products, LLC did

not have funds sufficient to pay for the reporter’s

record timely. Once Expelled obtained sufficient

funds to pay for the reporter’s record and forwarded

same to its counsel, Expelled sought the extensions

and leave subsequently granted by the Court on April

7, 2015. Expelled paid the court reporter’s deposit

and then full cost promptly thereafter.

4 13. When Expelled requested until May 11, 2015

as the latest it could supplement its brief, Expelled

believed that the reporter’s record would be filed

shortly after the Court granted leave on April 7,

14. The court reporter then requested another

extension of time from the Court until May 11, 2015,

which the Court granted.

15. Appellant seeks an extension of time to

supplement its Brief on the Merits to within 14-days

of the filing of the reporter’s record, which would

be than Monday, May 25, 2015. This is Appellant’s

first request for extension of time to file its

briefing supplement, which was originally due to be

filed today, May 11, 2015.

16. Appellant Expelled does not seek this

extension for the purposes of delay but only so that

justice may be served.

5 PRAYER

For all these reasons, Appellant Expelled Grain

Products, LLC respectfully requests an extension of

time to supplement its Brief on the Merits within 14-

days of today’s filing of the reporter’s record,

which would make the deadline May 25, 2015.

Appellant also requests all such further relief to

which the Court may deem Appellant is entitled.

Respectfully submitted,

/s/ Larry A. Vick Larry A. Vick TBA NO. 20563500 The Law Offices of Larry A. Vick 908 Town & Country Blvd. Suite 120 Houston, Texas 77024 (713) 333-6440 - Telephone (832) 202-2821 – Telecopier lv@larryvick.com

Attorney for Appellant Expelled Grain Products, LLC

Date: May 11, 2015

6 CERTIFICATE OF CONFERENCE:

I certify that I conferred with counsel for Appellee Corn Mill Enterprises, LLC and with counsel for Appellant Scott Theiring who stated this motion is unopposed. /s/ Larry A. Vick Larry A. Vick

CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties, which are listed below on May 11, 2015 as follows:

George F. May TWOMEY | MAY, PLLC 2 Riverway, 15th Floor Houston, Texas 77056

Attorney for Appellant-Intervenor Scott Theiring

Matt Sherwood UNDERWOOD LAW FIRM 500 South Taylor, Suite 1200 Amarillo, Texas 79101

Attorney for Appellee Corn Mill Enterprises, LLC

By (check all that apply) personal delivery mail commercial delivery service X fax, email, or electronic service

/s/ Larry A. Vick Larry A. Vick Date: May 11, 2015