Erin McCain and Marc a Townley v. Linda a Lanier ( 2022 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Erin McCain and Marc A. Townley v. Linda A. Lanier Appellate case number: 01-21-00679-CV Trial court case number: 2020-59696 Trial court: 151st District Court of Harris County Appellee, Linda A. Lanier, has filed a “Second Unopposed Motion for Extension of Time to File Appellee’s Brief.” Appellants, Erin McCain and Marc A. Townley, filed their appellants’ brief on February 3, 2022, making appellee’s brief initially due to be filed on or before February 23, 2022. See TEX. R. APP. P. 38.6(b). On March 14, 2022, appellee was notified by the Clerk of this Court that the deadline for filing her appellee’s brief had expired, and that the appeal may be set for submission without an appellee’s brief unless she filed her brief, or a motion to extend time to file her brief, within ten days of the notice. On March 22, 2022, appellee filed a “First Unopposed Motion for Extension of Time to File Appellee’s Brief,” requesting that her deadline for filing her brief be extended to June 2, 2022. While appellee’s first motion was captioned as an “unopposed motion to extend time to file appellee’s brief,” the motion also included a certificate of conference stating that counsel for appellee “attempted to confer . . . [with] [a]ppellants regarding this motion, but [he] was unable to reach Marc[] A. Townley after several attempts.” In our March 31, 2022 order, we granted, in part, appellee’s first motion to extend her deadline for filing her appellee’s brief, directing appellee to file her brief no later than May 2, 2022. In our March 31, 2022 order, we further notified appellee that no further extensions would be considered absent extraordinary circumstances. On May 2, 2022, appellee filed her “Second Unopposed Motion for Extension,” requesting that the deadline for filing her appellee’s brief be extended to June 1, 2022. In the motion, counsel for appellee states that “extraordinary circumstances” exist, in that counsel has been “involve[d] [in] two (2) continuous weeks of trial” since the Court’s March 31, 2022 order was entered. As with appellee’s first motion for extension, while the motion is captioned as “unopposed,” appellee’s second motion includes a certificate of conference stating that counsel for appellee “attempted to confer [with] counsel for [a]ppellants regarding this motion, but was unable to reach [counsel for appellants] after several attempts.” Further, on May 3, 2022, appellants filed a “Response and Objection to Appellee’s Second Motion for Extension of Time.” Given appellee’s own motion, and the response and objection filed by appellants, it is apparent that, despite appellee’s representation in the caption of its motion, its requested relief is not “unopposed.” Appellee’s motion is granted in part. Appellee’s brief is due to be filed no later than May 23, 2022, with no further extensions. The failure to file an appellee’s brief by the extended deadline will result in the Court setting the case “at-issue” and considering and deciding the case without an appellee’s brief. See TEX. R. APP. P. 10.5(b), 38.6(d). It is so ORDERED. Judge’s signature: ___/s/ Amparo Guerra______  Acting individually  Acting for the Court Date: __May 19, 2022____