Kelly R. Ginn, Green-Span Profiles, L.P., Green-Span Management, L.L.C., Green-Span Enterprises, Inc., and BKG Investments, L.L.C. v. NCI Building Systems, Inc.

Opinion

ACCEPTED 01-12-00502-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/9/2015 4:16:56 PM CHRISTOPHER PRINE CLERK

NO. 01-12-00502-CV _____________________________________________________ FILED IN IN THE COURT OF APPEALS FOR THE FIRST 1st COURT OF APPEALS DISTRICT HOUSTON, TEXAS OF TEXAS AT HOUSTON 9/9/2015 4:16:56 PM _____________________________________________________ CHRISTOPHER A. PRINE Clerk KELLY R. GINN, GREEN-SPAN PROFILES, L.P., GREEN-SPAN MANAGEMENT, L.L.C., GREEN-SPAN ENTERPRISES, INC., AND BKG INVESTMENTS, L.L.C., Appellants/Cross-Appellees

vs.

NCI BUILDING SYSTEMS, INC. Appellee/Cross-Appellant. _____________________________________________________ Appeal from the 11th Judicial District Court of Harris County, Houston, Texas, Trial Court Cause No. 2009-35831 _____________________________________________________

SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR REHEARING AND/OR EN BANC REHEARING

Appellants/Cross-Appellees Kelly R. Ginn, Green-Span Profiles, L.P., Green-

Span Management, L.L.C., Green-Span Enterprises, Inc., and BKG Investments,

L.L.C. ("Ginn") files this Second Unopposed Motion for Extension of Time to File

Motion for Rehearing and/or En Banc Rehearing and asks for a ten-day extension.

I. Introduction

1. Appellants/Cross-Appellees are Kelly R. Ginn, Green-Span Profiles, L.P.,

Green-Span Management, L.L.C., Green-Span Enterprises, Inc., and BKG

Investments, L.L.C. Appellee is NCI Building Systems, Inc. 2. This Court has authority to extend the time to file a motion for rehearing and/or

motion for rehearing en banc. See TEX. R. APP. P. 49.8.

II. Arguments and Authorities

3. This Court may extend the time to file an appellants’ motion for rehearing or

rehearing en banc under the authority of Texas Rule of Appellate Procedure 49.8.

4. The Appellants' Motion for Rehearing is currently due on September 11, 2015.

This Court issued a ninety-page opinion that has required extensive time to digest and

to communicate with the clients. Appellants request additional time to narrow the

issues for rehearing.

5. Moreover, the parties are currently engaged in settlement discussions that may

resolve the need for any further appeal. Appellants request a ten-day extension to

explore the possibility of a final resolution of this case. If an extension is not granted,

and Appellants have to file a motion for rehearing even though the parties ultimately

settle the dispute, the parties’ and the court’s resources will be wasted.

6. Appellants desire to extend for ten additional days the date that Appellants'

motion for rehearing and/or motion for rehearing en banc is due so that the parties may

finalize settlement communications and so that Appellants may submit a narrowly

tailored motion that assists this Court with the resolution to this case in the event that

the case does not settle. If this Motion is granted, the due date for the Appellants'

motion for rehearing and/or motion for rehearing en banc would be September 21,

-2- 2015. This request is made for good cause, so that justice may be done, and is not filed

for the purposes of delay. One previous motion to extend time has been filed by

Appellants regarding its motion for rehearing.

III. Conclusion

Accordingly, Appellants request that this Court grant this Motion to Extend

Time to File Appellants' motion for rehearing and/or motion for rehearing en banc and

requests that this Court enter an order extending the due date for its Appellants' motion

for rehearing and/or motion for rehearing en banc from September 11, 2015 to

September 21, 2015, and requests that this Court award any and all other relief to

which it is entitled in either law or equity.

-3- Respectfully submitted,

WINSTEAD PC

By: /s/ David F. Johnson Stephen W. Schueler State Bar No. 17823000 sschueler@winstead.com Zachary B. Allie State Bar No. 24063997 zallie@winstead.com 600 Travis Street, Suite 1100 Houston, Texas 77002-5895 (713) 650-8400 (telephone) (713) 650-2400 (facsimile)

And

David F. Johnson State Bar No. 24002357 dfjohnson@winstead.com 300 Throckmorton Street, Suite 1700 Fort Worth, Texas 76102 Telephone: 817.420.8200 Telecopy: 817.420.8201

ATTORNEYS FOR APPELLANTS/ CROSS-APPELLEES KELLY R. GINN, GREEN-SPAN PROFILES, L.P., GREEN- SPAN MANAGEMENT, L.L.C., GREEN SPAN ENTERPRISES, INC., AND BKG INVESTMENTS, L.L.C.

-4- CERTIFICATE OF CONFERENCE On September 9, 2015, counsel for Appellants conferred with counsel for Appellee and Appellee does not oppose the granting of the relief requested herein.

/s/ David F. Johnson David F. Johnson

CERTIFICATE OF FILING AND SERVICE I hereby certify that a true and correct copy of the foregoing document has been filed with the court by electronic filing this day and served upon the following counsel of record on this 9th day of September, 2015. Rusty Hardin, Esq. rhardin@rustyhardin.com Bob Galatas, Esq. bgalatas@rustyhardin.com Lara Hollingsworth, Esq. lhollingsworth@rustyhardin.com Joe Roden, Esq. jroden@rustyhardin.com Rusty Hardin & Associates and Telecopier (713) 652-9800 5 Houston Center 1401 McKinney, Suite 2250 Houston TX 77010-4035

Melissa J. Judd, Esq. mjudd@littler.com Littler Mendelson, P.C. and Telecopier (713) 951-9212 1301 McKinney Street, Suite 1900 Houston TX 77010

Patrick D. Sullivan, Esq. Sullivan@hooverslovacek.com Dylan B. Russell, Esq. Russell@hooverslovacek.com Hoover Slovacek LLP and Telecopier (713) 977-5395 5847 San Felipe, Suite 2200 Houston TX 77057-3918

/s/ David F. Johnson One of Counsel

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