William H. Scurlock v. John M. Hubbard

Court of Appeals of Texas·Decided April 10, 2015·No. 06-15-00014-CV·Published

Opinion

ACCEPTED 06-15-00014-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 4/10/2015 6:39:52 PM DEBBIE AUTREY CLERK

CAUSE NO. 06-15-00014-CV __________________________________________________________________ FILED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS FOR THE SIXTH DISTRICT OF TEXAS, TEXARKANA DIVISION 4/10/2015 6:39:52 PM __________________________________________________________________ DEBBIE AUTREY Clerk WILLIAM H. SCURLOCK § § v. § § JOHN M. HUBBARD § __________________________________________________________________

APPELLANT’S RESPONSE TO APPELLEE’S MOTION TO EXTEND TIME TO FILE REPLY BRIEF, OR ALTERNATIVELY, MOTION TO ABATE, AND APPELLANT’S MOTION TO GIVE APPEAL PRECEDENCE __________________________________________________________________

Cory J. Floyd Texas Bar No. 24049365 cory@nortonandwood.com

Cammy R. Kennedy Texas Bar No. 24079245 cammy@nortonandwood.com

NORTON & WOOD, L.L.P. 315 Main Street Texarkana, Texas 75501 Phone: (903) 823-1321 FAX: (903) 823-1325

ATTORNEYS FOR APPELLANT, WILLIAM H. SCURLOCK APPELLANT’S RESPONSE TO APPELLEE’S MOTION TO EXTEND TIME TO FILE REPLY BRIEF, OR ALTERNATIVELY, MOTION TO ABATE, AND APPELLANT’S MOTION TO GIVE APPEAL PRECEDENCE

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant WILLIAM H. SCURLOCK, who files

this Response to Appellee’s Motion to Extend Time to File Reply Brief,

or Alternatively, Motion to Abate, and Appellant’s Motion to Give

Appeal Precedence, and shows unto the Court as follows:

Appellee’s Motion to Extend Time to File Brief Should Be Denied

1. Appellant asks this Court to deny Appellee’s Motion to

Extend Time to File his brief, or in the alternative, limit any extension

of time to seven (7) days. A seven (7) day extension would extend

Appellee’s deadline to file his brief until April 16, 2015.

2. The Court has the authority under Texas Rules of Appellate

Procedure 38.6(d) to extend the time for an appellee to file a brief;

however, because this appeal concerns a wrongful receivership over

Appellant’s business, Pecan Point Brewing Company, as long as the

receivership remains in place, Appellant suffers harm under the trial

court’s order.

1 3. Appellant filed his brief on March 19, 2015, and Appellee’s

brief was due on or before April 9, 2015.

4. Appellee’s reasoning for seeking this extension, “because

Appellee Hubbard moved for dismissal of Appellant’s interlocutory

appeal for lack of jurisdiction of this Court...[and] that motion is

pending with the Court,” presumes that this Court requires additional

time to hear Appellee’s prior motion when, to Appellant’s knowledge, no

additional time has been requested. As such, Appellee’s reasoning is an

insufficient explanation for the delay in Appellee’s preparation and

filing of his brief.

5. Texas courts have held that when a party presents an

insufficient explanation for the need for additional time the party’s

motion may be denied. See Hykonnen v. Baker Hughes Bus. Support

Services, 93 S.W.3d 562, 564 (Tex. App.—Houston [14th Dist.] 2002, no

pet.); Simon v. Dillard's, Inc., 86 S.W.3d 798, 800 (Tex. App.—Houston

[1st Dist.] 2002, no pet.); Chilkewitz v. Winter, 25 S.W.3d 382, 383 (Tex.

App.—Fort Worth 2000, no pet.); Kidd v. Paxton, 1 S.W.3d 309, 311

(Tex. App.—Amarillo 1999, no pet.); Weik v. Second Baptist Church of

Houston, 988 S.W.2d 437, 439 (Tex. App.—Houston [1st Dist.] 1999, pet.

2 denied); Velasquez v. Harrison, 934 S.W.2d 767, 770 (Tex. App.—

Houston [1st Dist.] 1996, no writ); Furr v. Furr, 721 S.W.2d 565, 567

(Tex. App.—Amarillo 1986, no writ); and Dawson v. First Cont'l Real

Estate Inv. Trust, 590 S.W.2d 560, 563 (Tex. Civ. App.—Houston [1st

Dist.] 1979, no writ).

6. Accordingly, Appellant asks this Court to deny Appellee’s

request for an extension to file his brief or, in the alternative, grant only

a seven (7) day extension, extending the deadline for Appellee’s brief to

April 16, 2015.

Appellee’s Motion to Abate Should Be Denied

7. Appellee requests that, in the alternative, this Court abate

the appeal so that the trial court has an opportunity to consider

Appellee’s motion to modify the judgment previously filed in the trial

court proceedings.

8. Not only would allowing an abatement of this case defeat the

purpose of an accelerated appeal, but Appellee also fails to cite any

grounds or authority which support his bid to abate this matter until

the trial court is able to issue an order correcting any prior mistakes.

3 9. Filing a postjudgment motion which seeks to reform or

modify a judgment with the trial court does not extend the timetable for

an accelerated appeal. See Tex. R. Civ. P. 329b(e), see Tex. R. App. P.

28.1(b).

10. Accordingly, Appellant asks this Court to deny Appellee’s

Motion to Abate.

Appellant Moves to Give This Appeal Precedence

11. Appellant filed his Docketing Statement on February 23,

2015, reflecting that this is an accelerated appeal in accordance with

Texas Rule of Appellate Procedure 28.1(a), and further stated that this

appeal should receive precedence, preference, or priority.

12. Appellant asks this Court to give precedence to this appeal

because the interests of justice require it. See Tex. R. App. P. 40.1(c).

13. Since February 3, 2015, management of Pecan Point

Brewing Co. has been displaced by a wrongful receivership and

injunction. Brief of Appellant, William H. Scurlock v. John M.

Hubbard, No. 14C-1653-102, appeal docketed, 06-15-00014-CV (March

19, 2015). Each day that this matter remains outstanding constitutes

4 an additional infringement on Appellant, William H. Scurlock’s, right to

own, operate, and manage Pecan Point Brewing Co.

14. Accordingly, Appellant asks this Court to give precedence to

this appeal and require Appellee to timely file his brief in order to allow

the Court to render an opinion and judgment at the earliest practicable

time.

PRAYER

For reasons stated above, Appellant requests that this Court deny

Appellee’s Motion to Extend Time to File Brief, or in the alternative,

limit any extension granted to no more than seven (7) days, deny

Appellee’s Motion to Abate, and grant Appellant’s Motion to Give

Appeal Precedence.

5 Respectfully submitted:

/s/ Cammy Kennedy Texas Bar No. 24079245 cammy@nortonandwood.com

NORTON & WOOD, L.L.P. 315 Main Street Texarkana, Texas 75501 Phone: (903) 823-1321 FAX: (903) 823-1325 ATTORNEYS FOR APPELLANT, WILLIAM H. SCURLOCK

6 CERTIFICATE OF SERVICE

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