Peter Running, Jamie Running, and Cindy Wilkins, Appellants/Cross-Appellees v. the City of Athens, Texas and Athens Municipal Water Authority, Appellees/Cross-Appellants

ACCEPTED
12-18-00047-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/29/2018 11:57 AM
Pam Estes
CLERK
No. 12-18-00047-CV
FILED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
3/29/2018 11:57:33 AM
FOR THE TWELFTH DISTRICT OF TEXAS AT TYLER PAM ESTES
Clerk
PETER RUNNING, JAMIE RUNNING, AND CINDY WILKINS,
APPELLANTS/CROSS-APPELLEES
V.
THE CITY OF ATHENS, TEXAS AND ATHENS MUNICIPAL WATER AUTHORITY,
APPELLEES/CROSS-APPELLANTS
ON APPEAL FROM AN INTERLOCUTORY ORDER OF THE 392ND JUDICIAL DISTRICT
COURT OF HENDERSON COUNTY, TEXAS
UNOPPOSED
CROSS-APPELLANT CITY OF ATHENS, TEXAS’ MOTION TO EXTEND
TIME TO FILE BRIEF
LANCE VINCENT
State Bar No. 20585580
DOUGLAS A. RITCHESON
State Bar No. 24076650
RITCHESON, LAUFFER & VINCENT P.C.
821 ESE Loop 323, Ste. 530
Tyler, Texas 75701
Phone: (903) 535-2900
Fax: (903) 533-8646
COUNSEL FOR CROSS-APPELLANT
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TO THE HONORABLE TWELFTH COURT OF APPEALS
Cross-Appellant City of Athens, Texas, pursuant to Texas Rules of
Appellate Procedure 38.6(d) and 10.5(b), files this Motion to Extend Time to File
Brief, and requests this Court to extend the time to file Cross-Appellant’s brief in
this cause for an additional thirty (30) days.
1. The trial court signed the Order Denying Plea to the Jurisdiction at
issue on February 26, 2018. On March 13, 2018, Cross-Appellant City of Athens
filed a Notice of Interlocutory Appeal.
2. Also on February 26, 2018, the trial court signed a separate Order
Granting Plea to the Jurisdiction on behalf of Appellee Athens Municipal Water
Authority. Appellants/Cross-Appellees Peter Running, Jamie Running, and Cindy
Wilkins, filed their Notice of Interlocutory Appeal on March 1, 2018.
3. The clerk’s record for Appellants Running and Wilkins’ interlocutory
appeal was completed and filed on March 12, 2018, the day before Cross-
Appellant City of Athens filed its own Notice of Interlocutory Appeal.
4. Additional items requested for the record in Cross-Appellant City of
Athens’ interlocutory appeal were completed and filed on March 15, 2018, and
designated as “Supplemental Clerk’s Record.”
5. Cross-Appellant City of Athens’ brief is due on April 2, 2018.
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6. This is Cross-Appellant City of Athens’ first motion to extend time to
file its brief, and Cross-Appellant City of Athens requests a thirty (30) day
extension, up to and including April 9, 2018.
7. An extension may be granted if an appellant supplies a reasonable
explanation for the extension. National Un. Fire Ins. Co. v. Ninth Ct. of Appeals,
864 S.W.2d 58, 60 (Tex. 1993). A reasonable explanation includes a plausible
statement of the circumstances that shows the failure to file before the deadline
was not a deliberate or intentional act, rather, it was from inadvertence or mistake.
Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003).
8. As grounds for the extension, Cross-Appellant City of Athens’
counsel was under the mistaken impression that its briefing deadline would be
separate from Appellants Running and Wilkins’ briefing deadline.
9. Despite being designated as cross-appeals, the two interlocutory
appeals on file in this matter are appeals of separate interlocutory orders relating to
separate trial court defendants. Appellee Athens Municipal Water Authority is the
Appellee in Appellants Running and Wilkins’ interlocutory appeal. The City of
Athens, Texas, while a co-defendant in the trial court case, filed its own notice of
interlocutory appeal on a separate interlocutory order.
10. Cross-Appellant City of Athens’ notice of interlocutory appeal was
filed less than twenty (20) days before its brief deadline. On March 19, 2018, this
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Court sent Cross-Appellant City of Athens a notice letter and Court Packet, stating
that the Court would “notify the parties and the timetable for briefs will begin”
once the Court received the complete record. Because the Court had already
received the record for Appellants Running and Wilkins’ interlocutory appeal
before Cross-Appellant City of Athens filed its notice of interlocutory appeal, no
further record was required.
11. Due to this confusion, Cross-Appellant City of Athens was under the
mistaken impression that its own briefing deadlines would run separately from
Appellants Running and Wilkins’. Having received no further notice of “timetable
for briefs,” Cross-Appellant City of Athens was not aware until today that its brief
was due on April 2. As such, it became necessary for Cross-Appellant City of
Athens to file this Motion and request an extension of time to file its brief.
12. Cross-Appellant City of Athens seeks this extension not for delay or
as a result of a deliberate or intentional failure, but to account for Cross-
Appellant’s counsel’s mistake and inadvertence. Cross-Appellant seeks this
extension to allow counsel sufficient time to prepare a concise brief to assist with
the Court’s decision making.
13. Cross-Appellees Running and Wilkins are not opposed to this relief
and have not suffered any prejudice as a result of Cross-Appellant’s request for an
extension of time.
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PRAYER
For the above reasons, Cross-Appellant CITY OF ATHENS, TEXAS,
respectfully requests this Court to grant an extension of time to file its brief up to
and including April 9, 2018, along with any and all other relief to which it may be
entitled..
Respectfully submitted,
RITCHESON, LAUFFER & VINCENT
A Professional Corporation
TWO AMERICAN CENTER
821 ESE Loop 323, Ste. 530
Tyler, Texas 75701
(903) 535-2900
/s/ Lance Vincent
By: ________________________________
Lance Vincent
State Bar No. 20585580
ATTORNEYS FOR CROSS-APPELLANT
CITY OF ATHENS, TEXAS
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CERTIFICATE OF CONFERENCE
This is to certify that counsel for Cross-Appellant conferred with counsel for
Cross-Appellees on March 29, 2018, and Cross-Appellees are not opposed to the
relief requested herein.
/s/ Lance Vincent
Lance Vincent
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document has been served upon opposing
counsel of record, as noted below, on this the 29th day of March, 2018.
/s/ Lance Vincent
Lance Vincent
VIA ELECTRONIC SERVICE
Bill S. Richmond
Platt, Cheema & Richmond, PLLC
3906 Lemmon Ave., Suite 212
Dallas, TX 75219
Tel: 214-559-2700
Fax: 214-559-4390
brichmond@perfirm.com
ATTORNEYS FOR CROSS-APPELLEES
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