James Poe and Senior Retirement Planners, LLC v. Eduardo S. Espinosa in His Capacity as Receiver of Retirement Value, LLC ( 2015 )

ACCEPTED 03-14-00518-CV 6228065 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/27/2015 10:07:03 AM JEFFREY D. KYLE CLERK Nos. 03-14-00515-CV & 03-14-00518-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS7/27/2015 10:07:03 AM AUSTIN, TEXAS JEFFREY D. KYLE Clerk SALVATORE MARGARACI AND ESTATE PROTECTION PLANNING CORPORATION, Appellants v. EDUARDO S. ESPINOSA, IN HIS CAP A CITY AS RECEIVER OF RETIREMENT VALUE, LLC, Appellee And JAMES POE AND SENIOR RETIREMENT PLANNERS, LLC, Appellants v. EDUARDO S. ESPINOSA, IN HIS CAPA CITY AS RECEIVER OF RETIREMENT VALUE, LLC, Appellee Appeal from the 200th District Court Travis County, Texas Honorable Judge Gisela Triana RESPONSE TO MOTION TO CONSOLIDATE APPEALS Respectfully submitted, ALDRICH PLLC Scott Lindsey State Bar No. 24036969 1130 Fort Worth Club Tower 777 Taylor Street Fort Worth, Texas 76102 Telephone: 817-336-5601 Facsimile: 817-336-5297 slindsey@aldrichpllc.com ATTORNEYS FOR APPELLANTS JAMES POE AND SENIOR RETIREMENT PLANNERS, LLC - 2- RESPONSE TO MOTION TO CONSOLIDATE APPEALS James Poe and Senior Retirement Planners, LLC, the appellants in Cause No. 03-14-00518-CV, file their Response to Appellee Espinosa's Motion to Consolidate Appeals as follows: Contrary to Espinosa's claim that "the cases were tried together," there was no trial involving Appellants Poe and SRP. Also incorrect is Espinosa's claim that the "issues are exactly the same" in the Magaraci appeal and the Poe appeal. Only one of Poe's three appellate issues is similar to the issue presented by Magaraci. The majority of Poe and SRP's appeal bears no similarity to Magaraci's appeal, and a cursory review of Poe's and Magaraci's appellate briefs confirms the dissimilarity in these appeals. As pointed out by Magaraci, the Poe appeal "raises two additional fact-bound issues" that are not involved in Magaraci's appeal. Margaraci's Appellants' Brief, at 7. The legal and factual issues are therefore not "exactly the same" as alleged by Espinosa, and consolidation does not simplify the issues for this Court. It is not enough to simply allege that the appeals should be consolidated since they arise from the same litigation. The Court has many options short of consolidation that would avoid duplicate work or inconsistent results. - 3- Appellants James Poe and Senior Retirement Planners, LLC pray that the Court deny Appellee's motion to consolidate. Appellants further request all other relief to which they may be entitled. Respectfully submitted, ALDRICH PLLC Scott Lindsey State Bar No. 24036969 slindsey@aldrichpllc.com 1130 Fort Worth Club Tower 777 Taylor Street Fort Worth, Texas 76102 Telephone: 817-336-5601 Telecopier: 817-336-5297 ATTORNEYS FOR APPELLANTS JAMES POE AND SENIOR RETIREMENT PLANNERS, LLC - 4- CERTIFICATE OF SERVICE This is to certify that on this the 271h day of July, 2015, the foregoing motion was filed electronically with the Clerk for the Third Court of Appeals. A copy was served by electronic mail upon the following: John W. Thomas 114 W. 7th Street, Suite 1100 Austin, Texas 78701-3015 jthomas@gbkh.com Timothy A. Hootman 2402 Pease Street Houston, Texas 77003 Thootman2000@yahoo.com Scott Lindsey - 5-