ACCEPTED 03-13-00790-CV 8310659 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/18/2015 4:18:16 PM JEFFREY D. KYLE CLERK No. 03-13-00790-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS 12/18/2015 4:18:16 PM FOR THE THIRD DISTRICT OF TEXASJEFFREY D. KYLE Clerk AUSTIN, TEXAS

T. MARK ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED M. ANDERSON, AND CHRISTINE ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED M.ANDERSON v. RICHARDT. ARCHER, DAVID R. ARCHER, CAROL ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER BALL, AND SHERRI ARCHER

OPPOSED MOTION TO ALLOCATE TIME FOR ORAL ARGUMENT Scott R. Kidd State Bar No. 11385500 512-330-1713 [email protected] Scott V. Kidd State Bar No. 24065556 512-542-9895 [email protected] KIDD LAW FIRM West 11th Street Austin, TX 78701 512-330-1709 (fax) No. 03-13-00790-CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS

T. MARK ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED M. ANDERSON, AND CHRISTINE ANDERSON, AS CO-EXECUTOR OF THE ESTATE OF TED M.ANDERSON v. RICHARDT. ARCHER, DAVID R. ARCHER, CAROL ARCHER BUGG, JOHN V. ARCHER, KAREN ARCHER BALL,ANDSHERRIARCHER

OPPOSED MOTION TO ALLOCATE TIME FOR ORAL ARGUMENT

Come now Appellants/Cross-Appellees T. Mark Anderson and Christine Anderson, as Co-Executors of the Estate of Ted Anderson ("Andersons") and file this motion to allocate the time for oral argument.

1. On August 4, 2015, this Court notified the parties that this cause was set for oral argument on September 2, 2015.

2. At that time, the Court noted that in past cross-appeals, the standard time allotment had been 10 minutes for appellants' opening, minutes for appellees/cross-appellants' response and issues on cross-appeal, 10 minutes for appellants'jcross-appellees' rebuttal and response to cross-appeal, and 5 minutes for cross-appellants' rebuttal.

3. On August 17, 2015, Appellees/Cross-Appellants ("the Archers") filed a Motion to Allocate Time for Oral Argument. The basis of the motion was that the Andersons had not timely filed a brief to the cross- appeal and therefore were not entitled to oral argument on the cross- appeal under TRAP 39.1.

4. The Andersons did not file a response to the motion to allocate time for argument. On August 26, 2015, the court granted the Archers' motion to allocate time for oral argument and allocated 15 minutes for appellants' opening, 15 minutes for Appellees' response, 5 minutes for Appellants' rebuttal, and 5 minutes for Appellees'/Cross-Appellees' issues on cross-appeal.

5. On August 28, 2015, the Andersons' attorney Gerald McFarlen filed his motion to withdraw on the basis that his physical, mental or psychological condition materially impaired his fitness to represent the Andersons in this appeal. The Court granted that motion on September

2, 2015. McFarlen had previously filed a motion to continue the oral argument from its September 2, 2015 setting, which motion the Court granted on August 31, 2015.

6. The Andersons' present counsel filed his motion to substitute attorneys on November 6, 2015. Immediately following the granting of the motion to substitute by the Court, the Andersons filed their motion for leave to file Cross-Appellees Brief and tendered that Cross- Appellees' Brief at that time. The Archers opposed the motion for leave to file the Cross-Appellees' Brief. On December 8, 2015, the Court granted the Andersons' motion for leave to file the Andersons' Cross- Appellees' Brief and the brief was filed on that date.

7. The Court has now set this case for oral argument on January 27, 2016. Since the Andersons' Cross-Appellees' Brief has now been filed by leave of Court, the basis for the present allocation of time for oral argument no longer exists. The Court should allocate time for oral argument according to its customary practice by allocating 10 minutes for appellants' opening, 15 minutes for appellees' response and issues on cross-appeal, 10 minutes for appellants'jcross-appellees' rebuttal and response, and 5 minutes for cross-appellants' rebuttal.

8. The purpose of oral argument is to clarify the written arguments in the briefs and to respond to questions from the Court. This is to assist the Court in reaching a proper resolution of the issues on appeal.

Under the current time allocation, the Andersons are allocated no time to address the issues in the cross-appeal. Inasmuch as the Andersons' brief on the cross-appeal has been filed with leave of Court, the reason for the current allocation of argument time no longer exists.

Accordingly, the court should allocate the time as is customary in cross- appeals so that the Andersons can clarify arguments made in their brief on the cross-appeal and respond to the Court's questions regarding the cross-appeal.

WHEREFORE, the Andersons pray that the Court grant this motion and allocate the time for oral argument 10 minutes for appellants' opening; 15 minutes for appellees'I cross-appellants' response and issues on cross-appeal; 10 minutes for appellants'fcross- appellees' rebuttal and response; and 5 minutes for cross-appellants' rebuttal.

------------- KIDD LAW FIRM West 11th Street Austin, TX 78701 512-330-1709 (fax) ,..

4f!f!¢M State Bar No. 11385500 512-330-1713 [email protected] Scott V. Kidd State Bar No. 24065556 512-542-9895 [email protected] Certificate of Conference Appellants' counsel has consulted with Appellees' counsel '""""·ning thl, motlon ondAppellee I'~

SCR.Kidd Certificate of Service A copy of this motion was served on Laurie Ratliff by fax this 18th day of December, 2015.