ACCEPTED 01-14-00707-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/18/2015 4:36:02 PM CHRISTOPHER PRINE CLERK NO. 01-14-00707-CV
MARINECORP INTERNATIONAL, LTD., ) IN THE ) FILED IN Appellant, ) 1st COURT OF APPEALS ) HOUSTON, TEXAS V. ) 6/18/2015 FIRST COURT 4:36:02 PM OF APPEALS ) CHRISTOPHER A. PRINE THE CHOPPER GROUP, LLC, ET AL., Clerk ) )
Appellees ) HOUSTON, TEXAS
APPELLANT'S THIRD UNOPPOSED MOTION TO EXTEND TIME TO FILE BRIEF
Appellant, Marinecorp International, Ltd., asks the Court to extend the time to file its brief
A. INTRODUCTION 1. Appellant is Marinecorp International, Ltd.; Appellees are The Chopper Group, LLC;
Backwoods Country Club, LLC; Tony Miller; and Kyle Tones.
2. The Appellees are unopposed to this Motion.
B. ARGUMENT & AUTHORITIES
3. The Court has authority under Texas Rule of Appellate Procedure 38.6(d) to extend time
to file a brief.
4. There appear to be conflicting due dates for the filing of Appellant's brief. Although
explained more thoroughly below, these dates are:
a. The extended deadline of May 28, 2015, accounted for in the Court's Order granting Appellant's Motion to Extend Time to File Brief, dated April 22, 2015; and b. Ten (10) days after the date the court reporter files her supplement to the appellate record, as specifically requested in Appellant's Motion to Compel, which Motion was granted by written Order dated May 7, 2015.
1 5. On April 21, 2015, Appellant filed with the Court its Unopposed [Second] Motion to
Extend Time to File Brief. In this Motion, Appellant's legal counsel requested an additional 30-
days to file Appellant's brief, through and including May 28, 2015, because he had recently had
eye surgery which impaired his ability to complete the brief. By Order dated April 22, 2015, the
Court granted Appellant's Motion to Extend Time to File Brief, giving Appellant until May 28,
2015, to complete and file its brief.
6. Realizing that Appellant's legal counsel could not complete his client's brief without a
complete appellate record, on May 4, 2015, Appellant filed of record in this case its Unopposed
Motion to Compel, which related to the court reporter's dilatory efforts in filing with the appeals
Court a complete appellate record. More specifically, in the Motion to Compel Appellant
complained that the court reporter's transcript is incomplete because it does not contain:
a. The objections, motions, and rulings that were made at the bench and without the jury hearing such matters; b. The numerous motions, arguments, and rulings during the trial but outside the presence of the jury; and c. The discussions, motions, arguments, and rulings that took place during the jury charge conference outside the presence of the jury.
See Appellant's Unopposed Motion to Compel, attached as Exhibit "1."
7. It is important to note that at Section 7 of the subject Motion to Compel, Appellant
states, "Once the supplemental transcript is received, Appellant requests an additional 10 days to
complete its brief." Id. at §7. It is also important to note in the "Prayer" portion of the subject
Motion to Compel that Appellant specifically asks the Court "to grant an extension of time to file
its brief that is 10 days after the date the court reporter files her supplement." Id. at §9
8. On May 7, 2015, the Court issued its Order granting Appellant's Motion to Compel.
See attached Exhibit "2." At page 2 of the subject Order, the Court concludes, "We grant the
2 motion." The Court then proceeded to order the court reporters "to file, within 14 days of the
date of this order, either an amended reporter's record containing any missing portions of the
reporter's record in this case ... or a certification affirming that no additional proceedings,
including those listed above, exist." Id
9. Appellant's legal counsel was of the belief that with the Court's granting of
Appellant's Motion to Compel, the Court granted said motion in its entirety, which included
Appellant's request for "an extension of time to file its brief that is 10 days after the date the
court reporter files her supplement."
10. Remaining under the impression that Appellant had 10-days from the date the court
reporter filed her supplement to the appellate record, as ordered in the Court's Order granting
Motion to Compel [attached Exhibit "2"], Appellant's legal counsel continued preparation of
Appellant's brief to the extent he could without having available a complete appellate record.
Then, to the surprise of Appellant's legal counsel, he received an email from the Court dated
June 16, 2015, advising him that "The time for filing the APPELLANT'S brief has expired." See
attached Notice of Late Brief, Exhibit "3."
11. Appellant's failure to file its brief by the May 28, 2015, deadline was not due to
neglect or conscious indifference. Rather, this occurred because Appellant's legal counsel was
under the reasonable belief that with the Court's grant of Appellant's Motion to Compel, the
Court had also granted Appellant's specific request in said Motion for "an extension of time to
file its brief that is 10 days after the date the court reporter files her supplement" to the appellate
record.
12. Appellees have not been significantly injured by Appellant's failure to timely file
Appellant's brief. In this regard, it is important to note that while Appellant presently has a draft
3 of its Brief available, it is not complete because to this date, there is still no complete appellate
record available from which the parties can prepare their briefs citing to the Court specific
references to the record where error was preserved and where Appellant alleges supporting
evidence exists. Without a complete record, Appellant has been required to attempt to prepare
its brief in a piecemeal fashion, having to guess and even assume that certain objections and
evidence exist in segments of the reporter's record which have never been provided by the court
reporter, although specifically requested by the parties. This being said, Appellees have not
been prejudiced by Appellant's failure to timely file its brief by the May 28, 2015, deadline
because, in the alternative, prejudice would have certainly resulted to Appellees having to try to
attempt to respond to a brief that alleges appellate error without ever being provided key
references to the record and evidence because the parties have never been provided a complete
appellate record. No prejudice exists because to date Appellees have not been required to
prepare responsive briefs. Accordingly, Appellant requests that the Court grant it an extension of
time to complete and file its brief that is 10 days after the date the court reporter files her
supplement to the appellate record, as previously ordered by the Court.
13. Appellant's filing of this response to the Court's Notice of Late Brief is timely, as this
response is submitted to the Court within 10 days of the Notice's date of June 16, 2015.
PRAYER
For these reasons, Appellant asks the Court to grant an extension of time to file
Appellant's Brief to a date that is 1 0-days after the date the court reporter files her supplement to
the appellate record. Alternatively, Appellant asks that the Court order Appellant's brief filed
with the Court by a deadline deemed reasonable by the Court.
4 Respectfully submitted,
THE STROTHER LAW FIRM
/S/ MA CON D. STROTHER MACON D.
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 01-14-00707-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/18/2015 4:36:02 PM CHRISTOPHER PRINE CLERK NO. 01-14-00707-CV
MARINECORP INTERNATIONAL, LTD., ) IN THE ) FILED IN Appellant, ) 1st COURT OF APPEALS ) HOUSTON, TEXAS V. ) 6/18/2015 FIRST COURT 4:36:02 PM OF APPEALS ) CHRISTOPHER A. PRINE THE CHOPPER GROUP, LLC, ET AL., Clerk ) )
Appellees ) HOUSTON, TEXAS
APPELLANT'S THIRD UNOPPOSED MOTION TO EXTEND TIME TO FILE BRIEF
Appellant, Marinecorp International, Ltd., asks the Court to extend the time to file its brief
A. INTRODUCTION 1. Appellant is Marinecorp International, Ltd.; Appellees are The Chopper Group, LLC;
Backwoods Country Club, LLC; Tony Miller; and Kyle Tones.
2. The Appellees are unopposed to this Motion.
B. ARGUMENT & AUTHORITIES
3. The Court has authority under Texas Rule of Appellate Procedure 38.6(d) to extend time
to file a brief.
4. There appear to be conflicting due dates for the filing of Appellant's brief. Although
explained more thoroughly below, these dates are:
a. The extended deadline of May 28, 2015, accounted for in the Court's Order granting Appellant's Motion to Extend Time to File Brief, dated April 22, 2015; and b. Ten (10) days after the date the court reporter files her supplement to the appellate record, as specifically requested in Appellant's Motion to Compel, which Motion was granted by written Order dated May 7, 2015.
1 5. On April 21, 2015, Appellant filed with the Court its Unopposed [Second] Motion to
Extend Time to File Brief. In this Motion, Appellant's legal counsel requested an additional 30-
days to file Appellant's brief, through and including May 28, 2015, because he had recently had
eye surgery which impaired his ability to complete the brief. By Order dated April 22, 2015, the
Court granted Appellant's Motion to Extend Time to File Brief, giving Appellant until May 28,
2015, to complete and file its brief.
6. Realizing that Appellant's legal counsel could not complete his client's brief without a
complete appellate record, on May 4, 2015, Appellant filed of record in this case its Unopposed
Motion to Compel, which related to the court reporter's dilatory efforts in filing with the appeals
Court a complete appellate record. More specifically, in the Motion to Compel Appellant
complained that the court reporter's transcript is incomplete because it does not contain:
a. The objections, motions, and rulings that were made at the bench and without the jury hearing such matters; b. The numerous motions, arguments, and rulings during the trial but outside the presence of the jury; and c. The discussions, motions, arguments, and rulings that took place during the jury charge conference outside the presence of the jury.
See Appellant's Unopposed Motion to Compel, attached as Exhibit "1."
7. It is important to note that at Section 7 of the subject Motion to Compel, Appellant
states, "Once the supplemental transcript is received, Appellant requests an additional 10 days to
complete its brief." Id. at §7. It is also important to note in the "Prayer" portion of the subject
Motion to Compel that Appellant specifically asks the Court "to grant an extension of time to file
its brief that is 10 days after the date the court reporter files her supplement." Id. at §9
8. On May 7, 2015, the Court issued its Order granting Appellant's Motion to Compel.
See attached Exhibit "2." At page 2 of the subject Order, the Court concludes, "We grant the
2 motion." The Court then proceeded to order the court reporters "to file, within 14 days of the
date of this order, either an amended reporter's record containing any missing portions of the
reporter's record in this case ... or a certification affirming that no additional proceedings,
including those listed above, exist." Id
9. Appellant's legal counsel was of the belief that with the Court's granting of
Appellant's Motion to Compel, the Court granted said motion in its entirety, which included
Appellant's request for "an extension of time to file its brief that is 10 days after the date the
court reporter files her supplement."
10. Remaining under the impression that Appellant had 10-days from the date the court
reporter filed her supplement to the appellate record, as ordered in the Court's Order granting
Motion to Compel [attached Exhibit "2"], Appellant's legal counsel continued preparation of
Appellant's brief to the extent he could without having available a complete appellate record.
Then, to the surprise of Appellant's legal counsel, he received an email from the Court dated
June 16, 2015, advising him that "The time for filing the APPELLANT'S brief has expired." See
attached Notice of Late Brief, Exhibit "3."
11. Appellant's failure to file its brief by the May 28, 2015, deadline was not due to
neglect or conscious indifference. Rather, this occurred because Appellant's legal counsel was
under the reasonable belief that with the Court's grant of Appellant's Motion to Compel, the
Court had also granted Appellant's specific request in said Motion for "an extension of time to
file its brief that is 10 days after the date the court reporter files her supplement" to the appellate
record.
12. Appellees have not been significantly injured by Appellant's failure to timely file
Appellant's brief. In this regard, it is important to note that while Appellant presently has a draft
3 of its Brief available, it is not complete because to this date, there is still no complete appellate
record available from which the parties can prepare their briefs citing to the Court specific
references to the record where error was preserved and where Appellant alleges supporting
evidence exists. Without a complete record, Appellant has been required to attempt to prepare
its brief in a piecemeal fashion, having to guess and even assume that certain objections and
evidence exist in segments of the reporter's record which have never been provided by the court
reporter, although specifically requested by the parties. This being said, Appellees have not
been prejudiced by Appellant's failure to timely file its brief by the May 28, 2015, deadline
because, in the alternative, prejudice would have certainly resulted to Appellees having to try to
attempt to respond to a brief that alleges appellate error without ever being provided key
references to the record and evidence because the parties have never been provided a complete
appellate record. No prejudice exists because to date Appellees have not been required to
prepare responsive briefs. Accordingly, Appellant requests that the Court grant it an extension of
time to complete and file its brief that is 10 days after the date the court reporter files her
supplement to the appellate record, as previously ordered by the Court.
13. Appellant's filing of this response to the Court's Notice of Late Brief is timely, as this
response is submitted to the Court within 10 days of the Notice's date of June 16, 2015.
PRAYER
For these reasons, Appellant asks the Court to grant an extension of time to file
Appellant's Brief to a date that is 1 0-days after the date the court reporter files her supplement to
the appellate record. Alternatively, Appellant asks that the Court order Appellant's brief filed
with the Court by a deadline deemed reasonable by the Court.
4 Respectfully submitted,
THE STROTHER LAW FIRM
/S/ MA CON D. STROTHER MACON D. STROTHER State Bar of Texas #19420000 4306 Yoakum Blvd., Suite 560 Houston, Texas 77006 (713) 557-9238 mstrother(),strother1awfirm.com ATTORNEY FOR APPELLANT, MARINECORP INTERNATIONAL, LTD.
Certificate of Conference As required by Texas Rule of Appellate Procedure • 10.1 (a)(5), I certify that I have conferred, or made a reasonable attempt to confer, with all other parties which are listed below about the merits of this motion with the following results:
Brock C. Akers does not oppose motion
Steven R. Cochell does not oppose motion
MACON D. STROTHER
~~ -[ C-c-1-5- [Date]
5 Certificate of Service As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that on I served a 'copy of Appellant's Unopposed Motion to Extend Time to File Brief to the attorneys listed below by electronic service, and that the electronic transmissions were reported as complete. My email address is mstrother@strotherlawfirrn.com .
S Mr. Brock C. Akers The Akers Firm 3401 Allen Parkway, Suite 101 Houston, Texas 77019 Telephone 713-877-2500 Facsimile 713-583-8662 Email bca@akersfirm.com Attorney for Appellees, The Chopper Group, LW; Backwoods Country Club, LLC; and Tony Miller
Mr. Stephen R. Cochell The Cochell Law Firm, P.C. 5555 West Loop South, Ste. 200 Bellaire, Texas 77401 Telephone 832-767-1065 Facsimile 832-767-1686 Email srcoche1lgmail.com Attorney for Appellee Kyle Tones
____ personal delivery
mail
commercial delivery service
fax
t,,-" email
MACON D. STROTHER
[Date]
R.