William H. Scurlock v. John M. Hubbard

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.
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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.
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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.
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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
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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.
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Respectfully submitted:
/s/ Cammy Kennedy
Texas Bar No. 24079245
cammy@nortonandwood.com
Cory J. Floyd
Texas Bar No. 24049365
cory@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
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 10, 2015, a true and correct
copy of Appellant’s Response to Appellee’s Motion to Extend Time to
File Brief, or Alternatively, Motion to Abate, and Appellant’s Motion to
Give Appeal Precedence was forwarded to the counsel below:
Brent M. Langdon
Kyle B. Davis
LANGDON & DAVIS
625 Sam Houston Drive, Suite A
New Boston, Texas 75570
Email: blangdon@ldatty.com
Email: kdavis@ldatty.com
/s/ Cammy Kennedy
Cammy Kennedy
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