                                                                                                      ACCEPTED
                                                                                                  04-15-00575-CV
                                                                                      FOURTH COURT OF APPEALS
                                                                                           SAN ANTONIO, TEXAS
                                                                                            11/16/2015 3:19:34 PM
                                                                                                   KEITH HOTTLE
                                                                                                           CLERK

                                  CAUSE NO. 04-15-00575-CV

B&P DEVELOPMENT, LLC                            § IN THE COURT OF APPEALS
                                                                            FILED IN
AND CHAD H. FOSTER JR.,                         §                    4th COURT OF APPEALS
      APPELLANTS,                               §                     SAN ANTONIO, TEXAS
                                                §                    11/16/2015 3:19:34 PM
—VERSUS—                                        § FOURTH COURT OF APPEALS   DISTRICT
                                                                         KEITH E. HOTTLE
                                                §                             Clerk
KNIGHTHAWK, LLC, SERIES G,                      §
      APPELLEE.                                 § SAN ANTONIO, TEXAS


                  UNOPPOSED MOTION TO RECONSIDER ORDER GRANTING
                    A 120-DAY EXTENSION TO FILE REPORTER’S RECORD
              IN VIOLATION OF TEXAS RULE OF APPELLATE PROCEDURE 35.3(C)


TO THE HONORABLE JUSTICES OF SAID COURT:

       NOW COMES Appellee, Knighthawk, LLC, Series G (“Knighthawk”), and files this

Motion to Reconsider Order Granting Court Reporter a 120-Day Extension to File Reporter’s

Record in Violation of Texas Rule of Appellate Procedure 35.3(c), and in support thereof, would

respectfully show the Court as follows:

                                    A.     INTRODUCTION

1.     This boundary dispute is on appeal from the 83rd District Court of Val Verde County, the

       Honorable Stephen B. Ables, presiding.

2.     From January 20, 2015 until January 29, 2015, the parties tried this case before a jury.

       The jury found that Plaintiff Knighthawk’s survey showed the accurate location of the

       boundary line, found that Defendants B&P Development, LLC (“B&P”) and Chad H.

       Foster Jr. (“Foster”) had trespassed on Knighthawk’s property, and awarded Knighthawk

       damages for past and future damages for, inter alia, B&P’s improper use and occupancy

       of Knighthawk’s property. The jury’s verdict was unanimous.
3.    After the jury trial, the trial court held a bench trial on attorney’s fees, and eventually

      ordered that Knighthawk recover its attorney’s fees from B&P.

4.    On March 5, 2015, B&P and Foster filed their “Defendants’ Motion to Disregard Certain

      Jury Answers, and Render Judgment for Defendants on Certain Other Answers, or in the

      Alternative, Motion for Judgment Notwithstanding the Jury’s Verdict, and Plaintiff’s

      Motion for Judgment on the Verdict.

5.    On March 27, 2015, even before the judgment was signed, Defendants B&P and Foster

      filed their first Motion for New Trial.

6.    On May 1, 2015, the trial court signed its original Final Judgment.

7.    On June 25, 2015, the trial court signed an amended Final Judgment.

8.    On July 17, 2015, B&P and Foster filed a second Motion for New Trial, which the trial

      court overruled on August 27, 2015.

9.    On September 15, 2015, B&P and Foster filed their Notice of Appeal.

10.   The appellate record was originally due to be filed with this Court on October 23, 2015.

11.   On October 27, 2015, the Val Verde County District Clerk’s Office filed a Notification of

      Late Record, indicating that the clerk’s record was not timely filed because B&P and

      Foster were not entitled to a clerk’s record on appeal without paying for its preparation,

      and they had failed to pay or make arrangements to pay the fee for preparing such record.

      Importantly, the Val Verde County District Clerk’s Office served that Notification of

      Late Record on the parties to the appeal.

12.   On that same day, October 27, 2015, this Court issued an order requiring B&P and Foster

      to provide proof that they had paid the fee for preparation of the clerk’s record on or

      before November 6, 2015. That order included a footnote explaining, “this court has also



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      been advised that appellants have failed to pay for the reporter’s record, and the reporter

      intends to file a notification of late record stating same.”

13.   Before October 27, 2015, Knighthawk was unaware of any communication between the

      court reporter, Ms. Liché M. Cavazos, and this Court about why the reporter’s record had

      not been filed on time. But once Knighthawk’s attorneys read the footnote in this Court’s

      October 27, 2015 order, they believed that the only reason Ms. Cavazos had not filed the

      reporter’s record was that B&P and Foster had not yet paid for it.

14.   On October 30, 2015, Knighthawk received an electronic notification from this Court

      providing, “Liche Cavazos’ Notification of Late Reporter’s Record in the above styled

      and numbered cause has this date been received and filed.” Unlike the District Clerk, Ms.

      Cavazos did not serve the Notification of Late Record on the parties. And although that

      Notification of Late Record now appears on this Court’s website, it did not last week, and

      Knighthawk’s attorneys received no e-mail notification containing this actual

      Notification of Late Record—the second page of the notification from this Court was

      blank. In light of the footnote in this Court’s previous order, however, Knighthawk’s

      attorneys believed that, like the clerk’s record, the only reason the reporter’s record had

      not been filed was because Appellants had not paid for it yet.

15.   Appellants apparently paid for the clerk’s record, because on November 5, 2015, the Val

      Verde County District Clerk filed the clerk’s record.

16.   Ms. Cavazos’ Notification of Late Record explained that she had not filed the reporter’s

      record, not only because the Appellants had not yet made arrangements to pay for it, but

      also because “[her] other duties preclude working on the record and include the




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      following. . . another appeal due on a criminal case.” Based on those other duties, Ms.

      Cavazos requested an extension until February 29, 2016 to file the reporter’s record.

17.   Importantly, Ms. Cavazos’ Notification of Late Record recited that the reporter served a

      copy of that document on the parties. That recitation, however, was not true—

      Knighthawk never received a copy of the court reporter’s notification of Late Record, and

      that Notification of Late Record was not posted on this Court’s website until after counsel

      for Knighthawk called the Court to inquire about it.

18.   Knighthawk did not know that Ms. Cavazos was requesting such a lengthy extension

      until November 9, 2015, when it received this Court’s order granting in part and denying

      in part Ms. Cavazos’ requested relief. On November 9, 2015, after learning of this

      Court’s order granting Ms. Cavazos’ requested extension, Knighthawk’s counsel called

      the Court and spoke with one of its Deputy Clerks. Since Ms. Cavazos did not serve her

      Notification of Late Record on Knighthawk, its counsel was not able review that

      Notification until November 9, 2015, when one of this Court’s Deputy Clerks forwarded

      it to her.

19.   This Court granted Ms. Cavazos an extension to file the reporter’s record until February

      22, 2016.

20.   February 22, 2016 is:

             398 days from the date the parties began this trial;

             297 days from the date the trial court signed its original Final Judgment; and

             242 days from the date the trial court signed its amended Final Judgment.




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                             B.      ARGUMENT AND AUTHORITIES

21.   Texas Rule of Appellate Procedure 35.3(c) requires appellate courts to ensure that

      appellate records are timely filed. That Rule specifically prohibits appellate courts from

      granting extensions of longer than 30 days at a time to file appellate records: “[e]ach

      extension must not exceed 30 days in an ordinary or restricted appeal. . . .” Tex. R. App.

      P. 35.3(c). While this Court has discretion to allow the appellate record to be filed late, it

      has no discretion to grant extensions of longer than 30 days at a time. See id.; see also

      Tex. Gov’t Code Ann. § 311.016(3) (West 2015), and Helena Chem. Co. v. Wilkins, 47

      S.W.3d 486, 493 (Tex. 2001) (when used in a statute, the terms “must” and “shall” create

      a mandatory duty or obligation). Finally, Rule 35.3(c) authorizes this Court to “enter any

      order necessary to ensure the timely filing of the appellate record.” Id. In fact, this Court

      “must make whatever order is appropriate to avoid further delay and to preserve the

      parties’ rights.” Tex. R. App. P. 37.3(a)(1).

22.   Knighthawk respectfully requests that this Court reconsider its previous order granting

      Ms. Cavazos a single extension of 120 days from the original due date to file the

      reporter’s record, since that extension violates Rule 35.3(c). Knighthawk understands that

      court reporters may request multiple extensions, and that as a result of requesting

      multiple extensions, Ms. Cavazos may eventually receive extensions totaling 120 days

      from the date the record was due. But an extension this long sends Ms. Cavazos the

      message that the Texas Rules of Appellate Procedure do not govern her work, that this

      reporter’s record is not a priority, and that she need not treat this record as a priority.

23.   With an extension until February 22, 2016, the reporter’s record will not be filed until

      242 days—eight months—from the date the trial court signed its amended Final



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      Judgment. That extension to file the reporter’s record is longer than this court’s average

      time between filing and disposition. See Court of Appeals Activity—Activity Detail

      available at: http://www.txcourts.gov/statistics/annual-statistical-reports/2014.aspx (last

      visited Nov. 15, 2015). That delay is especially damaging here because the clerk’s record

      has been filed, so the delay in filing the reporter’s record is the only impediment to

      moving this case forward. This delay will obviously postpone the filing of the parties’

      briefs and defer the ultimate resolution of this case. This delay injures Knighthawk and it

      impairs this Court’s administration of justice.

24.   “The neglect of the court reporter harms the appellant, appellee, and the courts. . . .”

      Wolters v. Wright, 623 S.W2d 301, 306 (Tex. 1981). This Court is “expressly authorized

      by rule to ensure the timely filing of the appellate record.” In re Ryan, 993 S.W.2d 294,

      297 (Tex. App.—San Antonio 1999, no pet.). In ordering a court reporter to timely file

      the reporter’s record, this Court has the inherent power “to aid in the exercise of [this

      court’s] jurisdiction, in the administration of justice, and in the preservation of [the

      court’s] independence and integrity.” Id. (quoting Eichelberger v. Eichelberger, 582

      S.W.2d 395, 398 (Tex. 1979)).

25.   Knighthawk asks that this Court aid in the administration of justice by withdrawing its

      November 9, 2015 order granting Ms. Cavazos an extension until February 22, 2016—

      120 days from the date the reporter’s record was originally due, and 242 days from the

      date the trial court signed its amended Final Judgment—and substituting in its place an

      order that complies with Texas Rule of Appellate Procedure 35.3(c) and grants Ms.

      Cavazos an extension of no more than 30 days to file the reporter’s record.




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                                   C.      CONCLUSION AND PRAYER

26.       For the foregoing reasons, Appellee Knighthawk, LLC, Series G respectfully requests

          that this Court:

         grant this Motion to Reconsider Order Granting a 120-Day Extension to File Reporter’s

          Record in Violation of Texas Rule of Appellate Procedure 35.3(c);

         withdraw its November 9, 2015 order granting Ms. Cavazos an extension until February

          22, 2016 to file the reporter’s record in this case;

         substitute in its place an order granting Ms. Cavazos an extension of only 30 days—until

          November 23, 2015—to file the reporter’s record; and

         order Ms. Cavazos to serve any future extension requests on all counsel.

Knighthawk further requests all additional relief to which it may be entitled, in equity or at law.



                                                  Respectfully submitted,

                                                  /s/ Beth Watkins
                                                  Beth Watkins
                                                  State Bar No. 24037675
                                                  Law Office of Beth Watkins
                                                  926 Chulie Drive
                                                  San Antonio, Texas 78216
                                                  (210) 225-6666—phone
                                                  (210) 225-2300—fax
                                                  Beth.Watkins@WatkinsAppeals.com

                                                  Counsel for Appellee
                                                  Knighthawk, LLC, Series G




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                                 CERTIFICATE OF CONFERENCE

       I hereby certify that, on November 16, 2015, I e-mailed a copy of this Motion to
Reconsider Order Granting Court Reporter a 120-Day Extension to File Reporter’s Record in
Violation of Texas Rule of Appellate Procedure 35.3(c) to Mr. Greg White, counsel for
Appellants. On November 16, 2015, Mr. White responded that, on behalf of his clients, he was
unopposed to the substance of this motion.


                                            /s/ Beth Watkins
                                            Beth Watkins

                                            Counsel for Appellee
                                            Knighthawk, LLC, Series G


                                   CERTIFICATE OF SERVICE

        I hereby certify that, on November 16, 2015, I electronically served, via FileTime, my e-
filing service provider, a true and correct copy of the above document on the following counsel
of record:

       Mr. Greg White
       ATTORNEY AT LAW
       P.O. Box 2186
       Waco, Texas 76703
       (254) 307-0097—phone
       (866) 521-5569—fax
       greg.white@texapplaw.com

       Attorney for Appellants
       B&P Development, LLC
       and Chad H. Foster, Jr.

                                            /s/ Beth Watkins
                                            Beth Watkins

                                            Counsel for Appellee
                                            Knighthawk, LLC, Series G




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