Gattis Electric, Inc. v. Theresa Marie Mann, Individually and as Guardian of the Person and Estate of James Lawhon

Opinion

ACCEPTED

03-14-00080-CV

7339069

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/12/2015 4:54:20 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00080-CV

______________________________________

FILED IN

3rd COURT OF APPEALS

IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD JUDICIAL DISTRICT 10/12/2015 4:54:20 PM AUSTIN, TEXAS JEFFREY D. KYLE ______________________________________ Clerk

GATTIS ELECTRIC, INC.

Appellant,

v.

THERESA MARIE MANN, INDIVIDUALLY, AND AS GUARDIAN OF THE PERSON AND ESTATE OF JAMES LAWHON, Appellee.

______________________________________

On Appeal from the 126th Judicial District Court of Travis County, Texas

Trial Court No. D-1-GN-12-001971

______________________________________

SUPPLEMENT TO

APPELLANT’S UNOPPOSED SECOND MOTION TO EXTEND TIME TO FILE MOTION FOR REHEARING OR EN BANC RECONSIDERATION

______________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant, Gattis Electric, Inc., (“Gattis”) pursuant to Texas Rules of

Appellate Procedure 49.8 and 10.5(b), files this supplement to its Unopposed

Second Motion to Extend Time to File Motion for Rehearing or En Banc

Reconsideration:

1. On August 26, 2015, this Court issued an opinion and judgment

affirming the trial court judgment.

2. Any motion for rehearing or motion for en banc reconsideration was

due September 10, 2015. TEX. R. APP. P. 49.1.

3. Appellant filed a first motion for extension of time to file a motion for

rehearing or motion for en banc reconsideration, requesting an additional fifteen

(15) days, up to and including Friday, September 25, 2015, in which to file a

motion for rehearing or motion for en banc reconsideration. The Court granted

that motion on September 10, 2015.

4. Appellant filed a second motion for extension of time on September

29, 2015, together with its motion for rehearing or motion for en banc

reconsideration. In Appellant’s second motion for extension of time, it requested

an extension up to and including Friday, October 2, 2015, in which to file a motion

for rehearing or motion for en banc reconsideration.

5. The second motion for extension of time was timely. TEX. R. APP. P.

49.8. Also, Appellant’s Motion for Rehearing and Motion for En Banc

Reconsideration, tendered for filing on September 29, 2015, was tendered within

the time requested in the second motion to extend time. The Court has not yet

ruled on the second motion to extend time.

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6. As supplemental grounds for the second extension, counsel for

Appellant states the following. Appellant’s counsel was unable to complete a

motion for rehearing within the period allotted by the rules due to his involvement

in the following matters, which required immediate attention and prevented

completion of the Motion for Rehearing and Motion for En Banc Reconsideration

by September 25, 2015:

(a) Extensive preparation for a hearing to appoint receiver in No.

2014-30215; In the Matter of the Marriage of Evangelina Lopez Guzman and Miguel Zaragoza Fuentes; in the 245th Judicial District Court of Harris County, Texas; which hearing was scheduled for August 24, 2015, and was a date assigned by the court before Appellees’ Brief was filed. Many witnesses flew into Houston from other countries the week before August 24, 2015 to prepare for the hearing, and the undersigned counsel spent at least three days in preparation for the hearing.

(b) Research and preparation of Appellant’s Reply Brief in No. 15-

50128; Harbor America Central, Inc. v. United States; in the United States Court of Appeals for the Fifth Circuit; due and filed August 27, 2015.

(c) Research and preparation of an emergency motion to set aside a default judgment in No. 82302-CV; Ramsey v. Ironman Express, LLC, et al.; in the 412th Judicial District Court of Brazoria County, Texas; due August 27, 2015. A motion to set aside a default judgment requires immediate attention, and in this case, also requires preparation of a motion to extend appellate deadlines under Texas Rule of Civil Procedure 306a. The motion must be supported by affidavits of witnesses, and the preparation of these motions have consumed substantial time of Appellants’ counsel. There is a hearing set for September 11, 2015 on this motion, for which counsel has also been preparing.

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(d) Research and preparation of Appellee’s brief in No. 14-15-

00354-CV; Petrofac v. Immi Turbines, Inc.; in the Fourteenth Court of Appeals; which was originally due July 27, 2015. This is an accelerated appeal of a special appearance ruling. Counsel has filed two motions to extend time to file the Appellee’s brief, which is currently due September 14, 2015.

(e) Research and preparation of a petition for writ of certiorari in No. 14-0715; In re: Miguel Zaragoza Fuentes; an original proceeding following the denial of a special appearance in family court. The petition for writ of certiorari is due September 17, 2015.

(f) Research and preparation of a petition for writ of mandamus in C.A. No. 4:12-cv-1206; Aetna Life Ins. Co. v. Humble Surgical Hospital, LLC; in the United States District Court for the Southern District of Texas, Houston Division. The mandamus petition is currently in preparation and has not yet been filed.

(g) Research and preparation of Appellant’s Reply Brief in No. 13-

14-00456-CV; Bos v. Smith; in the Thirteenth Court of Appeals, Corpus Christi, Texas; filed on September 18, 2015. This was a lengthy reply brief, consisting of over 12,000 words, for which the court of appeals granted leave to exceed.

(h) Attendance at a previously unexpected client meeting in El Paso, Texas, on September 21-22, 2015; in No. 2014-30215; In the Matter of the Marriage of Evangelina Lopez Guzman and Miguel Zaragoza Fuentes; pending in the 245th Judicial District Court of Harris County, Texas. This meeting required travel into Mexico and took counsel’s efforts away from the motion for rehearing in the present case for an additional, and unforeseen, two days.

7. Appellant seeks this extension not for delay, but to allow counsel

sufficient time to prepare a concise reply brief to assist with the Court’s decision

making.

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PRAYER

For the above reasons, Appellant, Gattis Electric, Inc., respectfully requests

this Court to grant an extension of time to file a motion for rehearing or motion for

en banc reconsideration and accept as filed its Motion for Rehearing and Motion

for En Banc Reconsideration tendered for filing on September 29, 2015. Appellant

further requests general relief.

Respectfully submitted,

CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY

By: /s/ Kevin Jewell

Kevin D. Jewell State Bar No. 00787769 1200 Smith Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 658-1818 Telecopier: (713) 658-2553

ATTORNEYS FOR APPELLANT, GATTIS ELECTRIC, INC.

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CERTIFICATE OF CONFERENCE

The undersigned counsel for Appellant conferred with counsel for Appellee by email on October 12, 2015, regarding the filing of this supplement. As of this filing, it is unknown whether Appellee is unopposed to the relief sought in this motion.

/s/ Kevin Jewell

Kevin D. Jewell

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Motion to Extend Time to File Reply Brief has been forwarded to all parties and/or attorneys of record by the means indicated below, on this 12th day of October, 2015:

Via facsimile and/or electronic service D. Todd Smith Smith Law Group, P.C. 1250 Capital of Texas Highway South Three Cielo Center, Suite 601 Austin, Texas 78746

Via facsimile and/or electronic service Henry Moore Jayme Bomben 316 W. 12th St., Suite 318 Austin, Texas 78701

Via facsimile and/or electronic service Sally S. Metcalfe Metcalfe Law, P.L.L.C. 901 South Mopac Expressway Plaza One, Suite 300 Austin, Texas 78746

/s/ Kevin Jewell Kevin D. Jewell