Gator Apple, Llc v. Apple Texas Restaurants, Inc.

Opinion

FILED 14-0443 6/1/2015 1:56:15 PM tex-5491370 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK

NO. 14-0443

IN THE SUPREME COURT OF TEXAS

GATOR APPLE, LLC, Petitioner, VS.

APPLE TEXAS RESTAURANTS, INC., Respondent.

Appeal from the Fifth District Court of Appeals, Dallas Texas Appeal No. 05-12-01369-CV 134th District Court, Dallas County, Texas Trial Court No. DC-11-6565

PETITIONER'S SECOND MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR REHEARING OF PETITION FOR REVIEW

R. MICHAEL NORTHRUP State Bar Card No. 15103250 mnorthrup@cowlesthompson.com HILAREE A. CASADA State Bar Card No. 24027676 hcasada@cowlesthompson.com COWLES & THOMPSON, P.C. 901 Main Street, Suite 3900 Dallas, TX 75202 (214) 672-2000 (214) 672-2020 (FAX)

ATTORNEYS FOR PETITIONER, GATOR APPLE, LLC

1502642.1 TO THE HONORABLE SUPREME COURT OF TEXAS:

Petitioner, Gator Apple, LLC (Gator), files this Second Motion for

Extension of Time to File Motion for Rehearing of Petition for Review, and in

support of the requested extension shows the Court the following:

1. The deadline for filing the Motion for Rehearing is Monday, June 1, 2015.

2. Petitioner seeks an 8-day extension of time to file its motion for rehearing,

or up to and including, Tuesday, June 9, 2015.

3. Petitioner requires an extension of time to file the motion for the following

reasons:

a. Lead Appellate Counsel, Michael Northrup has been involved in other

matters which precluded him from completing the motion in the time

permitted. In particular, Mr. Northrup had to prepare for an

unanticipated and late-noticed hearing in In re the Guardianship of

Sydney Ayn LaRoe, No. PR-09-3185-1, pending in the Probate Court

No. 1, Dallas County, Texas. Mr. Northrup also had to perform

emergency research on this matter in order to ensure that the Ward’s

interests were adequately protected.

b. Mr. Northrup is co-counsel in Wal-Mart Stores, Inc. v. Forte, which is

pending before this Court on certified questions, Case No. 15-0146.

1502642.1 2 Wal-Mart’s brief is due for filing on Friday, June 5, 2015, and Mr.

Northrup will be involved with preparing the brief for filing.

c. Mr. Northrup is also scheduled to attend the UT Conference on

Federal and State Appeals in Austin, Texas this week on June 4 th and

June 5th, 2015.

d. Co-counsel, Hilaree Casada, has been involved in other matters which

precluded her from drafting the motion for rehearing, and was out of

town on a prepaid vacation from May 24, 2015 through May 31,

2015.

e. Ms. Casada has also been involved in reviewing the appellate record

and preparing Appellants’ Brief in Masik & Young Plaza, LLC et al.

v. K-Town Management, LLC, et al., 05-15-00353-CV, pending in the

Fifth District Court of Appeals at Dallas.

f. Ms. Casada also prepared the jury charge and trial summary in Triple

M GmbH v. Daniel Kondos, Cause Number 429-01826-2014,

currently pending in the 429th Judicial District Court of Collin

County, Texas.

g. Ms. Casada is also involved in preparing motions for summary

judgment in two separate cases: (1) Debra Halcumb, et al. v.

Helmerich and Payne, Inc., et al., C.A. No. 6:12-CV-00615-LED,

1502642.1 3 currently pending in the United States District Court for the Eastern

District of Texas, and (2) Wal-Mart Stores, Inc. v. Western Builders of

Amarillo, Inc., et al., Case No. CJ-2010-449, currently pending in the

District Court of Creek County, Oklahoma.

h. Ms. Casada is also reviewing the appellate record and preparing

Appellants’ Brief in Eusebio Palacios v. Jayaben Patel, Cause No.

08-15-00072-CV, currently pending in the Eighth District Court of

Appeals at El Paso.

i. In addition, various other internal deadlines and routine projects have

prevented Mr. Northrup and Ms. Casada from preparing the motion

for rehearing in this matter.

4. There has been one prior 14-day extension of time for filing this motion for

rehearing.

5. Petitioner would further show that the appeal to this Court is taken from the

Fifth District Court of Appeals, which issued its opinion and judgment March 5,

2014. Petitioner timely filed a motion for rehearing in the court of appeals on

March 20, 2014, which was denied on April 7, 2014. Petitioner then filed a motion

for rehearing en banc on April 22, 2014, which was denied on May 14, 2014.

The facts set out above are within the personal knowledge of the

undersigned counsel.

1502642.1 4 WHEREFORE, PREMISES CONSIDERED, Petitioner Gator Apple, LLC

respectfully requests that the Court grant this motion for extension of time to file

its motion for rehearing of the petition for review and afford Gator up to and

including Tuesday, June 9, 2015, to file its motion. Gator requests such further

and additional relief as the Court deems appropriate.

Respectfully submitted,

By: ___________________________ R. MICHAEL NORTHRUP Texas Bar No. 15103250 mnorthrup@cowlesthompson.com HILAREE A. CASADA Texas Bar No. 24027676 hcasada@cowlesthompson.com

COWLES & THOMPSON, P.C. 901 Main Street, Suite 3900 Dallas, TX 75202 (214) 672-2000 (Tel) (214) 672-2020 (Fax)

ATTORNEYS FOR PETITIONER GATOR APPLE, LLC

1502642.1 5 CERTIFICATE OF CONFERENCE The undersigned counsel certifies that he contacted lead counsel for

Respondent regarding this motion and she stated that the Respondent opposes the

requested extension of time.

______________________________ R. Michael Northrup

CERTIFICATE OF SERVICE The undersigned certifies that on the June 1, 2015, a true and correct copy of

this motion was delivered via Electronic Service to the counsel of record listed

below.

Beverly Whitley Robert B. Gilbreath beverlyw@bellnunnally.com rgilbreath@hptylaw.com Kristopher H. Hill Hawkins Parnell Thackston kristopherh@bellnunnally.com & Young, LLP Bell, Nunnally & Martin, LLP 4514 Cole Avenue, Suite 500 1400 One McKinney Plaza Dallas, Texas 75205-5412 3232 McKinney Avenue Amicus Curiae Dallas, Texas 75204 Counsel for Respondent

1502642.1 6