                                                                                                            ACCEPTED
                                                                                                        01-14-00707-CV
                                                                                             FIRST COURT OF APPEALS
                                                                                                     HOUSTON, TEXAS
                                                                                                   6/18/2015 4:36:02 PM
                                                                                                  CHRISTOPHER PRINE
                                                                                                                 CLERK
                                       NO. 01-14-00707-CV

MARINECORP INTERNATIONAL, LTD.,                        )      IN THE
                                                       )
                                                                               FILED IN
          Appellant,                                   )                1st COURT OF APPEALS
                                                       )
                                                                            HOUSTON, TEXAS
V.                                                     )                6/18/2015
                                                              FIRST COURT         4:36:02 PM
                                                                           OF APPEALS
                                                       )
                                                                        CHRISTOPHER A. PRINE
THE CHOPPER GROUP, LLC, ET AL.,                                                 Clerk
                                                       )
                                                       )


          Appellees                                    )      HOUSTON, TEXAS


                       APPELLANT'S THIRD UNOPPOSED MOTION
                           TO EXTEND TIME TO FILE BRIEF


     Appellant, Marinecorp International, Ltd., asks the Court to extend the time to file its brief

                                        A. INTRODUCTION
     1.    Appellant is Marinecorp International, Ltd.; Appellees are The Chopper Group, LLC;

Backwoods Country Club, LLC; Tony Miller; and Kyle Tones.

     2. The Appellees are unopposed to this Motion.



                              B. ARGUMENT & AUTHORITIES

     3. The Court has authority under Texas Rule of Appellate Procedure 38.6(d) to extend time

to file a brief.


     4. There appear to be conflicting due dates for the filing of Appellant's brief. Although

explained more thoroughly below, these dates are:

          a. The extended deadline of May 28, 2015, accounted for in the Court's Order granting
          Appellant's Motion to Extend Time to File Brief, dated April 22, 2015; and
          b. Ten (10) days after the date the court reporter files her supplement to the appellate
          record, as specifically requested in Appellant's Motion to Compel, which Motion was
          granted by written Order dated May 7, 2015.



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   5. On April 21, 2015, Appellant filed with the Court its Unopposed [Second] Motion to

Extend Time to File Brief. In this Motion, Appellant's legal counsel requested an additional 30-

days to file Appellant's brief, through and including May 28, 2015, because he had recently had

eye surgery which impaired his ability to complete the brief. By Order dated April 22, 2015, the

Court granted Appellant's Motion to Extend Time to File Brief, giving Appellant until May 28,

2015, to complete and file its brief.

    6. Realizing that Appellant's legal counsel could not complete his client's brief without a

complete appellate record, on May 4, 2015, Appellant filed of record in this case its Unopposed

Motion to Compel, which related to the court reporter's dilatory efforts in filing with the appeals

Court a complete appellate record. More specifically, in the Motion to Compel Appellant

complained that the court reporter's transcript is incomplete because it does not contain:


        a. The objections, motions, and rulings that were made at the bench and without the jury
           hearing such matters;
        b. The numerous motions, arguments, and rulings during the trial but outside the
           presence of the jury; and
        c. The discussions, motions, arguments, and rulings that took place during the jury
           charge conference outside the presence of the jury.

See Appellant's Unopposed Motion to Compel, attached as Exhibit "1."

        7. It is important to note that at Section 7 of the subject Motion to Compel, Appellant

states, "Once the supplemental transcript is received, Appellant requests an additional 10 days to

complete its brief." Id. at §7. It is also important to note in the "Prayer" portion of the subject

Motion to Compel that Appellant specifically asks the Court "to grant an extension of time to file

its brief that is 10 days after the date the court reporter files her supplement." Id. at §9


        8. On May 7, 2015, the Court issued its Order granting Appellant's Motion to Compel.

See attached Exhibit "2." At page 2 of the subject Order, the Court concludes, "We grant the


                                                   2
motion." The Court then proceeded to order the court reporters "to file, within 14 days of the

date of this order, either an amended reporter's record containing any missing portions of the

reporter's record in this case ... or a certification affirming that no additional proceedings,

including those listed above, exist." Id

          9.   Appellant's legal counsel was of the belief that with the Court's granting of

Appellant's Motion to Compel, the Court granted said motion in its entirety, which included

Appellant's request for "an extension of time to file its brief that is 10 days after the date the

court reporter files her supplement."

          10. Remaining under the impression that Appellant had 10-days from the date the court

reporter filed her supplement to the appellate record, as ordered in the Court's Order granting

Motion to Compel [attached Exhibit "2"], Appellant's legal counsel continued preparation of

Appellant's brief to the extent he could without having available a complete appellate record.

Then, to the surprise of Appellant's legal counsel, he received an email from the Court dated

June 16, 2015, advising him that "The time for filing the APPELLANT'S brief has expired." See

attached Notice of Late Brief, Exhibit "3."

          11. Appellant's failure to file its brief by the May 28, 2015, deadline was not due to

neglect or conscious indifference. Rather, this occurred because Appellant's legal counsel was

under the reasonable belief that with the Court's grant of Appellant's Motion to Compel, the

Court had also granted Appellant's specific request in said Motion for "an extension of time to

file its brief that is 10 days after the date the court reporter files her supplement" to the appellate

record.

     12. Appellees have not been significantly injured by Appellant's failure to timely file

 Appellant's brief. In this regard, it is important to note that while Appellant presently has a draft



                                                   3
of its Brief available, it is not complete because to this date, there is still no complete appellate

record available from which the parties can prepare their briefs citing to the Court specific

references to the record where error was preserved and where Appellant alleges supporting

evidence exists. Without a complete record, Appellant has been required to attempt to prepare

its brief in a piecemeal fashion, having to guess and even assume that certain objections and

evidence exist in segments of the reporter's record which have never been provided by the court

reporter, although specifically requested by the parties. This being said, Appellees have not

been prejudiced by Appellant's failure to timely file its brief by the May 28, 2015, deadline

because, in the alternative, prejudice would have certainly resulted to Appellees having to try to

attempt to respond to a brief that alleges appellate error without ever being provided key

references to the record and evidence because the parties have never been provided a complete

appellate record. No prejudice exists because to date Appellees have not been required to

prepare responsive briefs. Accordingly, Appellant requests that the Court grant it an extension of

time to complete and file its brief that is 10 days after the date the court reporter files her

supplement to the appellate record, as previously ordered by the Court.


    13. Appellant's filing of this response to the Court's Notice of Late Brief is timely, as this

response is submitted to the Court within 10 days of the Notice's date of June 16, 2015.


                                              PRAYER

        For these reasons, Appellant asks the Court to grant an extension of time to file

Appellant's Brief to a date that is 1 0-days after the date the court reporter files her supplement to

the appellate record. Alternatively, Appellant asks that the Court order Appellant's brief filed

with the Court by a deadline deemed reasonable by the Court.



                                                   4
                                                       Respectfully submitted,

                                                       THE STROTHER LAW FIRM


                                                       /S/ MA CON D. STROTHER
                                                       MACON D. STROTHER
                                                       State Bar of Texas #19420000
                                                       4306 Yoakum Blvd., Suite 560
                                                       Houston, Texas 77006
                                                        (713) 557-9238
                                                       mstrother(),strother1awfirm.com
                                                       ATTORNEY FOR APPELLANT,
                                                       MARINECORP INTERNATIONAL, LTD.


                                  Certificate of Conference
        As required by Texas Rule of Appellate Procedure • 10.1 (a)(5), I certify that I have
conferred, or made a reasonable attempt to confer, with all other parties which are listed below
about the merits of this motion with the following results:

              Brock C. Akers does not oppose motion

              Steven R. Cochell does not oppose motion




                                     MACON D. STROTHER



                                              ~~   -[ C-c-1-5-
                                     [Date]




                                                   5
                                     Certificate of Service
        As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that
on I served a 'copy of Appellant's Unopposed Motion to Extend Time to File Brief to
the attorneys listed below by electronic service, and that the electronic transmissions were
reported as complete. My email address is mstrother@strotherlawfirrn.com .

                        S             Mr. Brock C. Akers
                                        The Akers Firm
                                 3401 Allen Parkway, Suite 101
                                     Houston, Texas 77019
                     Telephone 713-877-2500        Facsimile 713-583-8662
                                   Email bca@akersfirm.com
                       Attorney for Appellees, The Chopper Group, LW;
                        Backwoods Country Club, LLC; and Tony Miller


                                    Mr. Stephen R. Cochell
                                  The Cochell Law Firm, P.C.
                                5555 West Loop South, Ste. 200
                                     Bellaire, Texas 77401
                     Telephone 832-767-1065         Facsimile 832-767-1686
                                  Email srcoche1lgmail.com
                               Attorney for Appellee Kyle Tones


                              ____ personal delivery

                                        mail

                                        commercial delivery service

                                        fax

                                t,,-"   email




                                        MACON D. STROTHER




                                        [Date]




                                                  R.
