Rhino Contractors, LLC v. Vulcan Construction Materials, LP ( 2015 )

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.
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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
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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
/s/ Judith R. Blakeway
JUDITH R. BLAKEWAY
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