in Re Gene Timberlake, Individually and on Behalf of the Estate of Joan Hughes Timberlake

ACCEPTED 14-14-00109-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/25/2015 5:02:06 PM CHRISTOPHER PRINE 14-15-00109-CV CLERK

Cause No. 14-14-00109-CV

FILED IN IN THE COURT OF APPEALS 14th COURT OF APPEALS HOUSTON, TEXAS F O R T H E F O U R T E E N T H J U D I C I A L D I S T R I3/25/2015 CT 5:02:06 PM AT HOUSTON CHRISTOPHER A. PRINE Clerk

IN RE GENE TIMBERLAKE, INDI VIDUALLY AND ON BEHALF OF THE ESTATE OF JOANNE HUGHES TIMBERLAKE, Relator.

Trial Court Cause No. 380,396 From Statutory Probate Court No. Two Harris County, Texas

RESPONDENTS R A Y AND C E C E L I A TIMBERLAKE'S SWORN M O T I O N FOR AN 8-DAY CONTINUANCE OF T H E WEDNESDAY, M A R C H 25,2015 MANDAMUS RESPONSE D A T E TO THURSDAY, APRIL 2,2015

Filed on March 25,2015 David A. Furlow State Bar No. 07555580 O F COUNSEL: Lead Counsel on Appeal D A V I D A. FURLOW. P C W. Cameron McCulloch, Jr. 4126 Rice Blvd. State Bar No. 00788930 Houston, Texas 77005 cameron.mcculloch@mmlawtexas.com (713)202.3931 (phone) Adrianne A. Graves (866) 382-0147 (fax) adri. graves (^mmlawtexas. com dafurlo w(^gmail .com MACINTYRE MCCULLOCH STANFIELD YOUNG 2900 Weslayan, Ste. 150, Houston, Texas 77027 (713) 572-2900 (phone) (713)572-2902 (fax)

COUNSEL FOR RESPONDENTS RAY AND C E C E L I A TIMBERLAKE

To the Honorable Justices of the Fourteenth Court of Appeals:

As set forth below, Respondents and Real Parties in Interest Ray and Cecelia Timberlake (hereinafter the "Timberlake Family") conditionally seek an 8-day, first-time extension of the Wednesday, Marcli 25, 2015 response deadline to and through Thursday, April 2, to file one brief fully responsive to to Relator Gene Timberlake's mandamus petition and his response to the Timberlake Family's motion to dismiss this mandamus proceeding.

RELIEF REQUESTED; L E A V E TO F I L E A B R I E F F U L L Y RESPONSIVE TO RELATOR G E N E T I M B E R L A K E ' S M A N D A M U S PETITION AND RESPONSE TO T H E T I M B E R L A K E FAMILY'S M O T I O N TO D I S M I S S THIS MANDAMUS PROCEEDING

1. Responding to Relator Gene Timberlake's massive mandamus

petition and the huge record that fills this Court of Appeals' website is a daunting task that can and will be finished if this Court grants the Timberlake Family's appellate attorney David A. Furlow an additional eight days to complete the existing draft of a brief he has prepared in the previous weeks. A delay of another eight days will prejudice no one since Relator Gene Timberlake filed this mandamus petition one year and four months after the Honorable Michael Wood signed the September 18, 2013 Order Granting New Trial that Relator complains of in his February 9, 2015 petition.

2. The Timberlake Family requests an extension of the February 25,

2015 response deadline by 8 days to extend the deadline from Wednesday, March 25, 2015, to and through Thursday, April 2, 2015 so that they can file a fuU response to Relator's mandamus petition and dismissal response after reviewing that brief with their appellate counsel and trial court co-counsel.

SERIOUS SCHEDULING CONFLICTS INVOLVING OUT OF TOWN LITIGATION, THE DEATH OF A C L O S E C O L L E A G U E , AND OTHER MATTERS P R E C L U D E D T H E T I M B E R L A K E FAMILY'S A P P E L L A T E COUNSEL DAVID A. F U R L O W FROM F I L I N G A F U L L MANDAMUS RESPONSE B Y MARCH 25,2015

3. The Timberlake Family's counsel David A. Furlow needs

another 8 days to complete his work and e-file the Timberlake Family's mandamus response brief He has completed a draft response but needs additional time to develop its arguments, add legal authorities and record citations, proof the resulting brief, review it with two clients and four co-counsel, and then link it to existing record exhibits and four more exhibits not previously in the Record but important to the resolution of this case.

4. The Timberlake Family file this motion under Rules 10.5, 49.1,

and 49.8, TEX. R. APR P., to ask this Court to grant their motion to extend the February 25, 2015 mandamus-response deadline by 28 days to March 25, 2015 as a result of serious scheduling conflicts on the part of the Respondent Timberlake Family's counsel.

5. Appellants set forth the following facts pursuant to the

requirements of Rule 10.5(b), TEX. R. APP. P. This is a mandamus proceeding complaining of the Honorable Michael Wood's September 18, 2013 order granting the Timberlake Family's motion for new trial regarding a June 14, 2013 fmal judgment.

6. Judge Michael Wood's September 18, 2013 new trial order

contained a detailed and thoughtful explanation of the many reasons justice compelled him to vacate his June 14, 2013 fmal judgment and to vacate the September 24, 2012 verdict on which it was based.

7. This Court set a Wednesday, February 25, 2015 date for a

response that the Timberlake Defendants satisfied, at least in part, by filing their February 25, 2015 motion to dismiss Relator Ray Timberlake's mandamus petition. The Timberlake Family incorporates by reference that motion to dismiss and asks this Court to take judicial notice of it under Texas Rule of Evidence 201(d).

8. This is the second motion the Timberlake Family has filed to

explain their and their counsel's reasonable need for an extension of the February 25, 2015 deadline for filing a response. The Timberlake Family obtained a March 25, 2015 extended date to make use of the 20-volume Reporter's Record that they never saw or received prior to this Court's request for a February 25, 2015 response. Their counsel has now reviewed that extensive record but needs an additional 8 days to finalize and e-file the Timberlake Family's mandamus response brief.

9. An overscheduled February and March 2015 already filled with

short-notice pending barratry/First Amendment and MDL litigation on behalf of Mike and Paul Kubosh in three separate district court cases and one MDL proceeding precluded the Timberlake Family's lead counsel David A. Furlow from filing a full response by February 25, 2015 and by March 25, 2015 as well. There were good reasons the Timberlake Family's appellate counsel David A. Furlow lacked adequate time to prepare a full, evidentiary response to Relator Gene Timberlake's mandamus petition by the extended March 25, 2015 deadline.

10. At the time that appellate counsel David Furlow received this

Court's request for a response to Relator's mandamus petition, Furlow was already committed to completing other responses to completing briefing and responses to pending motions and proceedings in:

(1) Michael Youngblood, Plaintiff v. Felix Michael Kubosh, et al, Defendants, Cause No. B194-221 in the 60* Judicial District Court of Jefferson County;

(2) Brandon Nash v. Kubosh Bail Bonding, et al., Cause No. E- 196182, in the 172nd District Court, Jefferson County, Texas;

(3) Cause No 15-0084, in the Judicial Panel on Multidistrict Litigation, In Re Kubosh Litigation; and

(4) a 72-plaintiff case, William Carter, et al, Plaintiffs v. Felix Michael Kubosh, et al., Defendants, Cause No. 2013-50819 in

Harris County District Court Judge Michael Gomez's 129*

Judicial District Court of Harris County, Texas.

11. A l l four of those cases required responses and briefmg in the

period before February 25, 2015 and, surprisingly, in the period between February 25 and March 25, 2015. That legal work included one lengthy evidentiary/discovery hearing in the 72-plaintiff case, William Carter, Cause No. 2013-50819 in the 129* Judicial District, on Monday, February 23, 2015 and another on Monday, March 2, 2015, as well as repeated filings through today in a related MDL proceeding. Because of work undertaken in hearings David Furlow attended, the Kubosh Defendants and Counter-Plaintiffs represented won a motion compelling Plaintiffs William Carter and Third Party Defendant Andrew Sullo to produce previously unproduced records.

12. In early February Furlow had just undergone two days of

hospitalization at the Methodist Hospital for cardiac and blood tests; in addition, he had two jaw/maxillary and dental implant surgeries already scheduled. As recently as yesterday Furlow has been undergoing medical care with his dentist Dr. Gregory Snow, M.D. and physician Dr. Rachel Guy, M.D. in connection with the jaw surgery and Methodist hospitalization.

13. During February 2015, a close family friend, Dr. Karin

Goldstein, chief archaeologist of Plimoth Plantation, died of cancer at the age of 49. Louise Goldstein, Karen's mother, and Dr. Richard Pickering, the Assistant Deputy Director of Plimoth Plantation, asked me to offer a memorial eulogy for Karin Goldstein. David Furlow left Houston at 8:25 A M on the morning of Tuesday, February 10, 2015, but soon learned that the Boston blizzard would postpone my arrival. Furlow arrived in Plymouth, Massachusetts at 10 PM that night, met with members of the Goldstein family and colleagues at Plimoth Plantation the next day, delivered his eulogy as part of Plimoth Plantation's memorial service at 3 PM, and arrived back in Houston at 10:45 PM on Wednesday night, February 11, 2015.

14. In addition to the litigation, hospitalization, and death-related cross-country travel, Furlow has been completing the editing process of the Spring 2015 issue in his role as Executive Editor of The Texas Supreme Court Historical Society Journal. David personally oversaw the completion and March 4, 2015 publication of the 90-page Spring 2015 issue of the Journal that focused on the history of the Texas Constitution, as found at http://www.texascoiirthistoiy.org/(iocuments/TSCHSJouriiatSpring2015.pdf (last accessed March 25, 2015).

15. David A. Furlow prepared and presented his paper and

PowerPoint about the history of school prayer litigation in Texas as the Texas Supreme Court Historical Society's speaker at the Texas State Historical Association's Annual Meeting in Corpus Christi next Friday, March 6, 2015.

16. David Furlow has been responsible for preparing lengthy reports

and editing videos of the Texas State Historical Association papers and Powerpoints with the State Bar of Texas for the Friday, March 27,2015 Spring Meeting of the Texas Supreme Court Historical Society in Austin.

17. In light of these serious scheduling conflicts involving both

litigation and long-planned State Bar and Texas Supreme Court Historical Society programs under tight deadlines, David Furlow was unable to complete fmalization of the Timberlake Family's Mandamus Response Brief by March 25,2015.

18. With another 8 day extension, David Furlow can tum the draft

Timberlake Family Mandamus Response Brief into a completed brief which he will then e-file in this Court on or before April 2, 2015.

19. The Timberlake Family and David Furlow respectfully request

the Fourteenth Court of Appeals to grant the Timberlake Family a reasonable extension through Thursday, April 2, 2015 i f the Court does not first dismiss Relator Gene Timberlake's mandamus petition.

20. The Timberlake Family Respondents/Real Parties in Interest are

filing this Conditional Motion for Continuance and to Extend Appellate Briefing Deadline by 8 days not for undue delay but to protect the rights of Ray and Cecelia Timberlake. 8

21. The Timberlake Family's lead counsel David Furlow contacted

Relator Gene Timberlake's lead counsel James Doyle about whether his client Gene Timberlake would oppose the requested extension through April 2, 2015. Mr. Doyle was not opposed to the last motion. The Timberlake Family will supplement this motion to state whether Relator Gene Timberlake opposes this motion for an 8-day extension.

22. In Stangel v. Parker, 945 S.W.2d 1 (Tex. 1997) (per curiam), a

unanimous Texas Supreme Court held that an appellate court must grant a timely-filed motion for extension of a deadline, in that case the filing of a motion for rehearing, based on a reasonable explanation of the need for a postponement. As the Texas Supreme Court observed.

Under Rule 100(a), a party has fifteen days after the court of appeals' rendition to file a motion for rehearing. TEX. R. APR P. 100(a). However, under Rule 100(g) a party can obtain a time extension i f the party moves for an extension of time not later than fifteen days after the date for filing the motion for rehearing. TEX. R. CIV. P 100(g); see also TEX. R. APR R 73 (about the form of the motion for extension). The motion must contain facts that reasonably explain the need for additional time. TEX. R. APR P. 100(g). Consequently, if a party timely moves for a time extension to file its motion for rehearing and reasonably explains the need for an extension, the appellate court must grant the motion. See Nolan v. Ramsey, 783 S. W.2d 212, 213 (Tex. 1990); see also Head v. Twelfth Court of Appeals, 811 S.W.2d 570, 571 (Tex. 1991).

Here, Stangel met Rule 100(g)'s deadline by filing his motion for extension not later than fifteen days after the last date for filing a motion for rehearing. In fact, Stangel mailed his

motion two days before tiie initial January 24 motion for rehearing filing deadline, and the record reflects that the court of appeals received it the next day, on January 23. Additionally, Stangel's motion reasonably explains his need for more time. As in Nolan, we conclude that Stangel's timely motion reasonably explains the need for a time extension as Rule 100(g) requires. See Nolan, 783 S.W.2d at 213. The court of appeals abused its discretion by denying Stangel's extension request.

Stangel is entitled to file a motion for rehearing and to have the court of appeals rule on its merits. Accordingly, Stangel is extended fifteen days from the date of this opinion to file his motion for rehearing. The case is to remain in the court of appeals for a ruling on Stangel's motion for rehearing.

Id. at 114-115. Neither the Texas Supreme Court nor any other court has ever reversed or limited the Stangel decision. The Timberlake Family's appellate counsel David A. Furlow verifies this motion through an affidavit.

CONCLUSION AND P R A Y E R

WHEREFORE, P R E M I S E S CONSIDERED, the Timberlake Family and their appellate counsel respectfully request an extension of 8 days through the end of Thursday, April 8, 2015 to file a full response i f this Court does not first dismiss Relator Gene Timberlake's mandamus petition. The Timberlake Family and their appellate counsel respectfully also request such other relief to which they may show themselves entitled. 10

E-filed on March 25, 2015 David A. Furlow State Bar No. 07555580 O F COUNSEL: Lead Counsel on Appeal David A. Furlow, PC W. Cameron McCulloch, Jr. 4126 Rice Blvd. State Bar No. 00788930 Houston, Texas 77005 cameron.mcculloch@mmlavvtexas.com (713)202.3931 (phone) Adrianne A. Graves (866)382-0147 (fax) adri.graves@mmlawtexas.com dafurlow@gmai 1 .com MACINTYRE M C C U L L O C H STANFIELD YOUNG 2900 Weslayan, Ste. 150 Houston, Texas 77027 (713) 572-2900 (phone) (713)572-2902 (fax)

COUNSEL'S V E R I F I C A T I O N OF T H E AUTHENTICITY OF THESE R E C O R D E X C E R P T S SERVING AS E X H I B I T S TO T H E T I M B E R L A K E F A M I L Y ' S M O T I O N TO DISMISS R E L A T O R G E N E T I M B E R L A K E ' S MANDAMUS P E T I T I O N , W H I C H IS INCORPORATED B Y R E F E R E N C E H E R E I N

T H E STATE O FTEXAS § § COUNTY O FHARRIS §

"My name is David A. Furlow and 1 have served as lead appellate counsel for Defendants/Respondents Ray and Cecelia Timberlake at all times since September 25,2013.

" I am of sound mind, capable of making this atTidavit, and personally acquainted with the facts herein.

" I have personal knowledge of all matters set forth in verification, and they are true. I hereby certify that I have read this response and motion and 1 swear, subject to the penalties of perjury, that every factual statement in it is true and supported by competent evidence. I am filing this Conditional Motion for Continuance and to Extend Appellate Briefing Deadline by 28 days not for undue delay but to protect the rights of Defendants/Respondents Ray and Cecelia Timberlake.

" I depose and state, based on his personal knowledge as the Timberlake Defendants'/Respondents' appellate counsel and based on my familiarity with all of the pleadings, motions, responses, replies, rejoinders, and evidence filed by all of the parties to the case in the Honorable Michael Wood's Harris County Probate Court, as well as my knowledge of my correspondence with Court Reporter Tina White in that court.

" I ask this Court to take Texas Rule of Evidence 201(d) judicial notice of that evidence attached to the e-filed motion to dismiss filed on behalf of the Timberlake Family Respondents/Real Parties in Interest in that case.

"As a matter of personal knowledge, each of the exhibits attached to the previously-filed Timberlake Respondents' Motion to Dismiss, which are incorporated by reference herein, were true copies of documents copied from the Court files or correspondence between David A. Furlow and Court Reporter Tina Martin in the Honorable Michael Wood's Harris County Statutory Probate Court.

"Further affiant/declarant sayeth not."

David Furlow

C E R T I F I C A T E OF COMPLI ANCE

Pursuant to Texas Rule of Appellate Procedure 9.4,1 hereby certify that this is a computer-generated document created in Microsoft Word, using 14- point typeface for all text, except for footnotes, which are in 12-point typeface. In making this certificate of compliance, 1 am relying on the word count provided by the Microsoft Word software used to prepare this document.

//ss: P^M^mhm David A. Furlow

C E R T I F I C A T E OF S E R V I C E

As required by Texas Rules of Appellate Procedure 6.3, 9.5(b), (d), (e), and 52.7(c), I certify that a true copy of Respondents Ray and Cecelia Timberlake's Motion for an 8-Day Extension of the March 25, 2015 Response Deadline through Thursday, April 2,2015 has been served on all other parties and counsel in the trial court as listed below on March 25, 2015, as follows:

Judge Michael Wood Probate Court No. Two Harris County Civil Courthouse 201 Caroline, 6th Floor Houston, Texas 77002 By Electronic Service and U.S. Mail RESPONDENT

Mr. James Eloi Doyle jdoyle@drhrlaw.com Ms. N. Kimberly Hoesl khoesl@drhrlaw.com DOYLE, RESTREPO, HARVIN & ROBBINS, L.L.P 440 Louisiana, Suite 2300 Houston, Texas 77002 (713) 228-5100 (telephone) RELATOR'S COUNSEL

Mr. W. Cameron McCulloch, Jr. cameron.mcculloch@mmlawtexas.com Ms. Adrianne A. Graves adri. graves @mmlawtexas. com M A C I N T Y R E M C C U L L O C H STANFIELD YOUNG 2900 Weslayan, Suite 150 Houston, Texas 77027 RESPONDENTS/REAL PARTIES IN INTERESTS' COUNSEL

Ms. Linda C. Goehrs Lgoehrs@horrgoehrs.com Mr. Rudolph M . Culp rmc@horrgoehrs.com HORRIGAN & GOEHRS, L.L.R 5020 Montrose, Suite 500 Houston, Texas 77006 RESPONDENTS/REAL PARTIES IN I N T E R E S T S ' COUNSEL

David A. Furlow