No. 4-04-00582-CV

IN THE COURT OF APPEALS FOR THE

FOURTH COURT OF APPEALS DISTRICT

SAN ANTONIO, TEXAS

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RONALD F AVERY

APPELLANT

VS.

GUADALUPE-BLANCO RIVER AUTHORITY

MR. WILLIAM E. WEST JR.; MR. DAVID WELSCH

APPELLEES

____________________________________

ON APPEAL FROM THE 25^TH JUDICIAL DISTRICT COURT

GUADALUPE COUNTY, TEXAS

THE HONORABLE B. B. SCHRAUB, JUDGE PRESIDING

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APPELLANT’S MOTION TO FILE AMENDED BRIEF AND APPENDIX

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TO THE HONORABLE FOURTH COURT OF APPEALS:

Now comes Ronald F. Avery, Appellant, and moves the Court under TRAP 38.7 and Local Rule 8.4, to grant Leave to accept and stamp as “FILED” the Appellant’s First Amended Brief and First Amended Appendix and File the same as both were received by this court and stamped “RECEIVED” on November 10, 2004. The Appellant would show the following in support of his motion:

1. Appellees Unopposed to Appellant’s Amended Brief and Amended Appendix:

Appellant attempted to confer with Mr. William Helfand by phone on Friday November 12, 2004 and left a message concerning this motion. Dawn, Mr. Helfand’s legal secretary, returned Appellant’s call and said they were unopposed to having both the Appellant’s First Amended Brief and Appendix “FILED.”

2. The Appellant does not need time for Leave:

Appellant does not require time as a component of Permission to Leave, as he has already submitted both his Appellant’s First Amended Brief and Appendix to the court and served it upon the Appellees on Wednesday November 10, 2004.

3. The grounds for Appellant’s Motion for Leave or Permission to Mark as “FILED” both the Appellant’s First Amended Brief and First Amended Appendix:

3.1. History:

The Appellant filed his Brief and Appendix by the required deadline of October 4, 2004. The Appellees failed to file their Brief by the required 30 day deadline (November 3, 2004). The Appellees timely filed their Appellees’ Motion to Extend Time to File Brief on November 3, 2004. Appellant filed his Appellant’s Response to Appellees’ Motion to Extend Time to File Brief. This Court granted the Appellees’ Motion extending the time to file Appellees’ Brief to December 3, 2004.

3.2. Busy was Sole Grounds for Extension of Time to Appellees:

The Appellees’ attorneys, a partnership of professional corporations of untold numbers of firms and attorneys and staff, based their motion to extend time to file Appellees’ brief solely on their showing that they were busy on four other cases, one of which was assistance to a high profile movie star, Sandra Bullock.

3.3. Appellant was Agreeable to Extend Time to Appellees:

The Appellant in his Response was agreeable to the extension of time to the Appellees to file their brief for two reasons. First, the Appellant wanted to win his appeal on the merits and upon substance rather than upon procedural default of the Appellees. Secondly, the Appellant wanted to be compensated with equal justice by being allowed to file both his Appellant’s First Amended Brief and Appendix on or before Friday November 12, 2004.

3.4. Appellant Very Busy:

Appellant is also busy running his tavern 10 hours a day. Appellant is also responsible for the maintenance of other family properties around Texas. Appellant also has to do all his legal research at law libraries as he has no online ability or subscriptions to legal data bases. Appellant has no secretaries or staff to assist him in preparation of letters, mailings, filings, briefs, and research, etc. The Appellant has no other law firms working in partnership or association with him.

3.5. Appellant Encountered Computer Difficulties in Final Preparation:

The Appellant in his desire to comply with the type style (9.4 (e) 13 pt. courier) requirements of the Appellate court, changed the default settings of his word processor. This caused his computer to no longer perform certain functions. Word processing functions are tied to default type styles (other than courier) set by Microsoft Word. The Appellant as a result and in fear of not receiving an extension of time to file his brief, submitted his Brief and Appendix in form and content far short of what he wanted and knew he could produce had the computer worked as before.

3.6. Ease of Reading by all Parties including Appellate Court:

Both the Appellant’s First Amended Brief and Appendix “RECEIVED” as of November 10, 2004 is more comprehensive of the Appellant’s research, and more in compliance with form required by this court in regard to Tables of Authorities and Tables of Contents. The Amended material is more organized and easier to read with headings above all quotes in the Appendix and appearing in the Table of Contents.

3.7. Marking “FILED” will reduce further work and filing:

The Granting of Leave or Permission under Local Rule 8.4 to Accept and Mark as “FILED” both the Appellant’s First Amended Brief and Appendix will reduce the amount of future filings of additional citations under Local Rule 8.3.

PRAYER

THEREFORE, The Appellant prays that the Fourth Court of Appeals Grant Leave or Permission to Mark the Appellant’s First Amended Brief and the Appellant’s First Amended Appendix as “FILED” and extend Appellees time to file their Appellees’ Brief 30 days to Monday December 13, 2004.

Respectfully Submitted,

Ronald F. Avery

Pro Se

__________________________

1955 Mt. Vernon

Seguin, Texas 78155

830/372-5534

Further, the Appellant prays for any other relief that he may be entitled to.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was forwarded by certified mail,

return receipt requested # 7002 0510 0001 8079 6525, on this the _______ day of ____________ , 2004 to the following:

William S. Helfand &/or Kevin D. Jewell

Chamberlain, Hrdlicka, White, Williams & Smith

Attorneys at Law

1200 Smith Street, Suite 1400

Houston, Texas 77002

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