Rhino Contractors, LLC v. Vulcan Construction Materials, LP

Opinion

ACCEPTED 04-15-00117-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/4/2015 1:52:20 PM KEITH HOTTLE CLERK

NO. 04–15–00117–CV IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO

RHINO CONTRACTORS, LLC, APPELLANT, V. VULCAN CONSTRUCTION MATERIALS, LP, APPELLEE.

On Appeal from the 288th District Court Bexar County, Texas

APPELLANT RHINO CONTRACTORS, LLC’S UNOPPOSED MOTION FOR LEAVE TO FILE REPLY LETTER BRIEF

A. Introduction 1. Rhino Contractors, LLC is Appellant. Vulcan Construction Materials,

LP is Appellee.

B. Argument and Authorities. 1. A court of appeals may permit a party to file a supplemental brief

whenever justice requires under Texas Rule of Appellate Procedure 38.7.

2. Appellant asks leave to file a letter brief with attached documents to

respond to a misstatement of the record in Appellee’s brief.

1823833.1/SPSA/36984/0101/050415 3. Appellee Vulcan argues that the judgment must be affirmed because

“Rhino decided to appeal without a reporter’s record, thus failing to preserve any

of its arguments or points of error related to the sufficiency of its evidence or the

insufficiency of Vulcan’s.” Appellee’s Brief at 6. Vulcan further argues, “Rhino

has no basis to complain of supposed deficiencies in Vulcan’s proof” because of

“Rhino’s failure to request the reporter’s transcription of the hearing.” Id. “In the

absence of any request for the reporter’s record, Rhino concedes that it produced

no credible evidence on the issues of which it now complains.” Id. This is not

factually correct.

4. In fact, Defendant did request a reporter’s record multiple times. No

such record was ever prepared because, as the court reporter confirmed to the clerk

of this Court, no evidence was offered by Vulcan at a “prove–up” hearing on the

default judgment.

5. For these reasons, Appellant asks the Court to grant it leave to file a

reply brief attaching the request for the reporter’s record.

2 1823833.1/SPSA/36984/0101/050415 Respectfully submitted,

/s/ Judith R. Blakeway EDWARD F. VALDESPINO State Bar No. 20424700 edward.valdespino@strasburger.com Judith R. Blakeway State Bar No. 02434400 Judith.Blakeway@strasburger.com STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215 Telephone: (210) 250-6000 Facsimile: (210) 250-6100

ATTORNEYS FOR APPELLANT RHINO CONTRACTORS, LLC

CERTIFICATE OF CONFERENCE

I hereby certify that I conferred with Robert Wachsmuth, counsel for

Appellee, regarding this motion. Mr. Wachsmuth conveyed that he is not opposed.

/s/ Judith R. Blakeway JUDITH R. BLAKEWAY

3 1823833.1/SPSA/36984/0101/050415 CERTIFICATE OF SERVICE

Pursuant to E-Filing Standing Order, I certify that on May 4, 2015, I

electronically filed the foregoing with the Clerk of Court using the

EFile.TXCourts.gov electronic filing system which will send notification of such

filing to the following:

Robert W. Wachsmuth bob@rwwattorneys.com Zachary J. Fanucchi zach@rwwattorneys.com Robert Wachsmuth & Associates, PC 9311 San Pedro Ave., Suite 707 San Antonio, Texas 78216 Telephone: (210) 342–2707 Facsimile: (210) 342–2701

Attorneys for Appellee Vulcan Construction Materials, LP

4 1823833.1/SPSA/36984/0101/050415