Edom Corner, LLC and Earl Berry, Jr. v. It's the Berry's, LLC ( 2015 )

ACCEPTED
12-14-00365-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
5/6/2015 11:21:17 AM
CATHY LUSK
CLERK
NO. 12-14-00365-CV
FILED IN
12th COURT OF APPEALS
EDOM CORNER, LLC and § IN THE COURT TYLER, TEXAS
EARL A. BERRY, JR. § 5/6/2015 11:21:17 AM
§ CATHY S. LUSK
VS. § OF APPEALS Clerk
§
IT’S THE BERRYS, LLC
§ d/b/a TWELFTH APPELLATE
MARY ELLEN’S § DISTRICT
THIRD MOTION TO EXTEND TIME TO FILE APPELLANTS’ BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes Edom Corner, LLC and Earl A. Berry, Jr., Appellants in the above
styled and numbered cause, and moves this Court to grant an extension of time to
file Appellants’ brief, pursuant to Rule 38.6 of the Texas Rules of Appellate
Procedure, and for good cause shows the following:
1. This case is on appeal from the 294th Judicial District Court of Van
Zandt County, Texas.
2. The case below was styled It’s the Berrys, LLC d/b/a Mary Ellen’s v.
Edom Corner, LLC and Earl A. Berry, Jr., Cause No. 09-00138 in the 294th Judicial
District Court of Van Zandt County, Texas.
3. Judgment in favor of Plaintiff was entered by the Trial Court on
October 14, 2014. A Motion for New Trial was filed on November 6, 2014.
4. Notice of appeal was given on December 29, 2014.
5. The clerk's record was filed on February 24, 2015; the reporter's record
was filed on February 11, 2015.
6. The Appellants’ brief is presently due May 4, 2015.
7. Appellants request an extension of time of two (2) days from the present
date.
8. Two extensions to file the brief has been received in this cause.
9. Appellants rely on the following facts as good cause for the requested
extension:
Appellants’ attorney, Katherine A. Ferguson, shows that she was attempted to
file the brief at 12:23:12 PM on May 4, 2015. The brief was rejected due to
insufficient electronic signature. Appellant was not aware until early morning of
May 6, 2015 that the filing had not been accepted. Appellant attempted to refile,
and was successful in submitting the brief on May 6, 2015 at 8:28:31 AM.
Appellants’ attorney has conferred with Larry M. Lesh, counsel for Appellee,
and Larry M. Lesh stated he did not object to the brief being filed on May 6, 2015
and that his client has not suffered a material injury by the late filing.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Court grant this Second Motion to Extend Time to File Appellant's Brief, and for
such other and further relief as the Court may deem appropriate.
Respectfully submitted,
RENSHAW, DAVIS & FERGUSON, LLP
By: /s/ Katherine A. Ferguson
Katherine A. Ferguson
(SBN 06918050)
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Tel: (903) 454-6050
Fax: (903) 454-4898
Email: rdflawoffice@yahoo.com
Lead Counsel for Appellants
CERTIFICATE OF SERVICE
This is to certify that on May 6, 2015, a true and correct copy of the above
and foregoing document was served on the following by facsimile:
Larry M. Lesh, Esq.
1 Forest Park Drive
Richardson, Texas 75080
FAX: (972) 699-1456
R. Paul Elliot, Esq.
301 S. Main St.
Canton, Texas 75103
FAX: (903) 567-6228
/s/ Katherine A. Ferguson
Katherine A. Ferguson
CERTIFICATE OF CONFERENCE
This is to certify that on May 6, 2015, the undersigned spoke by telephone
with Larry M. Lesh, lead counsel for Appellee It’s the Berry’s, LLC d/b/a Mary
Ellen’s. Mr. Lesh stated that he did not oppose a two (2) day extension of the
deadline for Appellants’ Brief.
/s/ Katherine A. Ferguson
Katherine A. Ferguson