in Re Harlan Levien, Stephen Levien, Kenneth Ives, and Parvin Johnson, Jr.

• Court: Court of Appeals of Texas
• Decided: January 8, 2015
• Docket: 03-14-00822-CV
• Status: Published

Opinion

January 8, 2014

CAUSE NO. 03-14-00822-CV

IN RE ) IN THE COURT OF APPEALS ) HARLAN LEVIEN AND ) THIRD JUDICIAL DISTRICT STEPHEN LEVIEN, ET AL, ) ) RELATORS ) AUSTIN, TEXAS

REAL PARTIES IN INTEREST’S UNOPPOSED FIRST MOTION FOR EXTENSION OF TIME TO FILE RESPONSE TO PETITION FOR WRIT OF MANDAMUS

COMES NOW, Real Parties in Interest to this mandamus proceeding,

Kenneth Levien, Barry Levien, and Philip Levien, Trustees on Behalf of the Trust

Established under Article Seven of The Last Will and Testament of Arnold

Levien. Real Parties In Interest (hereinafter referred to as “The Levien Trustees”)

file this First Unopposed Motion for Extension of Time to File Response to Petition

for Writ of Mandamus. In support thereof, the Levien Trustees state the following:

On December 4, 2014 the trial court signed a discovery order compelling

Relators to produce certain documents to the Levien Trustees over their objection.

This discovery order was signed in Cause No. 423-2681 styled Kenneth Levien,

Barry Levien, and Philip Levien, Trustees on Behalf of the Trust Established

under Article Seven of The Last Will and Testament of Arnold Levien, Plaintiffs vs.

Harlan Levien and Stephen Levien, Defendants.

1 On December 18, 2014, after an additional hearing, the trial court vacated the

December 4, 2014 discovery order and signed a new Order which is now the subject

of the Relator’s Petition for Writ of Mandamus filed in this cause on December 31,

2014.

On January 2, 2015 this Court requested a response from the Levien Trustees

to be filed by Monday, January 12, 2015.

The Levien Trustees seek a three week extension of time to file their

response, making it due on Monday, February 2, 2015. The extension is necessary

for the following reasons:

a. Lead trial counsel for the Levien Trustees, Ellen A. Yarrell, will be out

of the country beginning Saturday, January 10, 2015 through Sunday,

January 25, 2015 on a trip which has been planned and confirmed since

July 2014. It is critically important that the Levien Trustees lead trial

counsel be fully involved in the preparation and review of matters related

to filing the response requested by the Court. Ms. Yarrell’s commitments

prior to leaving on January 10, 2015 do not allow her to fully participate in

the preparation and completion of a response by the original January 12,

2015 deadline set. Further, Ms. Yarrell’s travel destination is to

Patagonia, South America, a sparsely populated region with unreliable

2 electronic access. Further, Ms. Yarrell’s intended travel activities make

her virtually inaccessible to the undersigned counsel during her absence

and it is both necessary and desirable for her to offer input and review the

response upon her return before filing.

b. The undersigned appellate counsel for the Levien Trustees has not been

previously involved in the underlying trial court matters. As such, the

undersigned appellate counsel must familiarize herself with all relevant

materials, including pleadings, hearing transcripts, relevant matters from

other affiliated litigation and legal research and the time currently allotted

by the Court is insufficient in light of other committed obligations and

deadlines.

A three week extension will not jeopardize the rights of any party to the

underlying litigation. More specifically, the underlying suit has been taken off the

trial docket for March 2, 2015 and there is currently no trial date set. Further, there

is no “emergency.” The Relators were ordered to comply with the trial court’s order

by December 31, 2014 and they have not requested nor been granted a stay of this

Order from this Court. Even so, the Levien Trustees hereby represent to this Court

that they will not seek to compel Relator’s compliance with the trial court’s

December 31, 2014 production deadline until such time as the issues involved in

3 this mandamus proceeding have been resolved, and only then presuming it is

resolved in favor of the Levien Trustees position. The undersigned counsel for the

Levien Trustees has made this same representation to counsel for Relators. As such,

the Levien Trustee’s request for a three week extension is not prejudicial to the

Relators.

The Levien Trustees pray that the Court grant this motion for extension of

time, extending their deadline to file a response to the Petition for Writ of

Mandamus to Friday, February 2, 2015.

Respectfully submitted,

/s/ Sallee S. Smyth SALLEE S. SMYTH SBT# 18779400 800 Jackson Street Richmond, Texas 77469 (281) 238-6200 (281) 238-6202 (Fax) smyth.sallee@gmail.com Attorney for Real Parties in Interest THE LEVIEN TRUSTEES

CERTIFICATE OF CONFERENCE

I certify that I have communicated with John Kinchen, counsel for Relators, regarding the filing of this motion and he is not opposed to the motion.

/s/ Sallee S. Smyth SALLEE S. SMYTH

4 CERTIFICATE OF SERVICE

I certify that a true copy of the above was served on the following counsel and/or parties of record in accordance with the Texas Rules of Civil and Appellate Procedure on this the 8th day January, 2015:

Mr. John Kinchen VIA EMAIL at jkinchen@hakllp.com Attorney for Relators

Luis A. Fabrega VIA EMAIL at lfabrega@fabregahood.com Attorney for Relators