Peter Running, Jamie Running, and Cindy Wilkins, Appellants/Cross-Appellees v. the City of Athens, Texas and Athens Municipal Water Authority, Appellees/Cross-Appellants

• Court: Court of Appeals of Texas
• Decided: March 29, 2018
• Docket: 12-18-00047-CV
• Status: Published

Opinion

ACCEPTED 12-18-00047-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 3/29/2018 11:57 AM Pam Estes CLERK

No. 12-18-00047-CV

FILED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS TYLER, TEXAS 3/29/2018 11:57:33 AM FOR THE TWELFTH DISTRICT OF TEXAS AT TYLER PAM ESTES Clerk

PETER RUNNING, JAMIE RUNNING, AND CINDY WILKINS, APPELLANTS/CROSS-APPELLEES

V.

THE CITY OF ATHENS, TEXAS AND ATHENS MUNICIPAL WATER AUTHORITY, APPELLEES/CROSS-APPELLANTS

ON APPEAL FROM AN INTERLOCUTORY ORDER OF THE 392ND JUDICIAL DISTRICT

COURT OF HENDERSON COUNTY, TEXAS

UNOPPOSED CROSS-APPELLANT CITY OF ATHENS, TEXAS’ MOTION TO EXTEND TIME TO FILE BRIEF

LANCE VINCENT State Bar No. 20585580 DOUGLAS A. RITCHESON State Bar No. 24076650 RITCHESON, LAUFFER & VINCENT P.C. 821 ESE Loop 323, Ste. 530 Tyler, Texas 75701 Phone: (903) 535-2900 Fax: (903) 533-8646

COUNSEL FOR CROSS-APPELLANT

1 TO THE HONORABLE TWELFTH COURT OF APPEALS

Cross-Appellant City of Athens, Texas, pursuant to Texas Rules of

Appellate Procedure 38.6(d) and 10.5(b), files this Motion to Extend Time to File

Brief, and requests this Court to extend the time to file Cross-Appellant’s brief in

this cause for an additional thirty (30) days.

1. The trial court signed the Order Denying Plea to the Jurisdiction at

issue on February 26, 2018. On March 13, 2018, Cross-Appellant City of Athens

filed a Notice of Interlocutory Appeal.

2. Also on February 26, 2018, the trial court signed a separate Order

Granting Plea to the Jurisdiction on behalf of Appellee Athens Municipal Water

Authority. Appellants/Cross-Appellees Peter Running, Jamie Running, and Cindy

Wilkins, filed their Notice of Interlocutory Appeal on March 1, 2018.

3. The clerk’s record for Appellants Running and Wilkins’ interlocutory

appeal was completed and filed on March 12, 2018, the day before Cross-

Appellant City of Athens filed its own Notice of Interlocutory Appeal.

4. Additional items requested for the record in Cross-Appellant City of

Athens’ interlocutory appeal were completed and filed on March 15, 2018, and

designated as “Supplemental Clerk’s Record.”

5. Cross-Appellant City of Athens’ brief is due on April 2, 2018.

2 6. This is Cross-Appellant City of Athens’ first motion to extend time to

file its brief, and Cross-Appellant City of Athens requests a thirty (30) day

extension, up to and including April 9, 2018.

7. An extension may be granted if an appellant supplies a reasonable

explanation for the extension. National Un. Fire Ins. Co. v. Ninth Ct. of Appeals,

864 S.W.2d 58, 60 (Tex. 1993). A reasonable explanation includes a plausible

statement of the circumstances that shows the failure to file before the deadline

was not a deliberate or intentional act, rather, it was from inadvertence or mistake.

Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003).

8. As grounds for the extension, Cross-Appellant City of Athens’

counsel was under the mistaken impression that its briefing deadline would be

separate from Appellants Running and Wilkins’ briefing deadline.

9. Despite being designated as cross-appeals, the two interlocutory

appeals on file in this matter are appeals of separate interlocutory orders relating to

separate trial court defendants. Appellee Athens Municipal Water Authority is the

Appellee in Appellants Running and Wilkins’ interlocutory appeal. The City of

Athens, Texas, while a co-defendant in the trial court case, filed its own notice of

interlocutory appeal on a separate interlocutory order.

10. Cross-Appellant City of Athens’ notice of interlocutory appeal was

filed less than twenty (20) days before its brief deadline. On March 19, 2018, this

3 Court sent Cross-Appellant City of Athens a notice letter and Court Packet, stating

that the Court would “notify the parties and the timetable for briefs will begin”

once the Court received the complete record. Because the Court had already

received the record for Appellants Running and Wilkins’ interlocutory appeal

before Cross-Appellant City of Athens filed its notice of interlocutory appeal, no

further record was required.

11. Due to this confusion, Cross-Appellant City of Athens was under the

mistaken impression that its own briefing deadlines would run separately from

Appellants Running and Wilkins’. Having received no further notice of “timetable

for briefs,” Cross-Appellant City of Athens was not aware until today that its brief

was due on April 2. As such, it became necessary for Cross-Appellant City of

Athens to file this Motion and request an extension of time to file its brief.

12. Cross-Appellant City of Athens seeks this extension not for delay or

as a result of a deliberate or intentional failure, but to account for Cross-

Appellant’s counsel’s mistake and inadvertence. Cross-Appellant seeks this

extension to allow counsel sufficient time to prepare a concise brief to assist with

the Court’s decision making.

13. Cross-Appellees Running and Wilkins are not opposed to this relief

and have not suffered any prejudice as a result of Cross-Appellant’s request for an

extension of time.

4 PRAYER

For the above reasons, Cross-Appellant CITY OF ATHENS, TEXAS,

respectfully requests this Court to grant an extension of time to file its brief up to

and including April 9, 2018, along with any and all other relief to which it may be

entitled..

Respectfully submitted,

RITCHESON, LAUFFER & VINCENT A Professional Corporation

TWO AMERICAN CENTER 821 ESE Loop 323, Ste. 530 Tyler, Texas 75701 (903) 535-2900

/s/ Lance Vincent By: ________________________________ Lance Vincent State Bar No. 20585580

ATTORNEYS FOR CROSS-APPELLANT CITY OF ATHENS, TEXAS

5 CERTIFICATE OF CONFERENCE

This is to certify that counsel for Cross-Appellant conferred with counsel for Cross-Appellees on March 29, 2018, and Cross-Appellees are not opposed to the relief requested herein. /s/ Lance Vincent

Lance Vincent

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been served upon opposing

counsel of record, as noted below, on this the 29th day of March, 2018.

/s/ Lance Vincent

VIA ELECTRONIC SERVICE Bill S. Richmond Platt, Cheema & Richmond, PLLC 3906 Lemmon Ave., Suite 212 Dallas, TX 75219 Tel: 214-559-2700 Fax: 214-559-4390 brichmond@perfirm.com ATTORNEYS FOR CROSS-APPELLEES