FinServ Casualty Corp , Capstone Associated Services, Ltd., Liquidating Marketing, Ltd., RSL-3B-IL, Ltd., and RSL-5B-IL, Ltd.,, RSL Funding and RSL Special-IV v. Transamerica Occidental Life Insurance Company, Transamerica Life Insurance Company, and Transamerica Annuity Service Corporation ( 2015 )

ACCEPTED
14-14-0838-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/22/2015 3:59:07 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00838-CV
FILED IN
FINSERV CASUALTY CORP., CAPSTONE ASSOCIATED SERVICES , LTDOF
14th COURT ., APPEALS
HOUSTON, TEXAS
LIQUIDATING MARKETING, LTD., RSL-3B-IL, LTD., & RSL-5B-IL, LTD.
5/22/2015 3:59:07 PM
CHRISTOPHER A. PRINE
V. Clerk
TRANSAMERICA LIFE INSURANCE COMPANY AND
TRANSAMERICA ANNUITY SERVICES CORPORATION
ON APPEAL FROM THE 165TH DISTRICT COURT
IN HARRIS COUNTY, TEXAS, CAUSE NO. 2011-05238
APPELLANTS’ FOURTH UNOPPOSED
MOTION TO EXTEND TIME TO FILE BRIEF
MAY IT PLEASE THE COURT:
Appellants FinServ Casualty Corp., Capstone Associated Services, Ltd.,
Liquidating Marketing, Ltd., RSL-3B-IL, Ltd., and RSL-5B-IL, Ltd. move for a
fourth, and final, 30-day extension of time to file their brief due to the illness of
their appellate counsel. See TEX. R. APP. P. 10.5(b), 38.6(d). The extended
deadline for the brief of appellants would now fall on Monday, June 22, 2015, after
rolling over from the weekend. See id. 4(a). The appellees do not oppose this final
request for an extension.
1. On March 24, 2015, the Court extended the time for appellants to file
their opening brief because their appellate counsel E. John Gorman fell seriously
ill. See TEX. R. APP. P. 10.5(b)(1)(A), 38.6(a). In granting relief, the Court ruled it
would grant no further extensions absent exceptional circumstances. Exceptional
circumstances for another extension exist. Rule 38.6(d) in turn authorizes
appellants to move for an extension “before or after the brief is due.” See id.
38.6(d). Appellants are meeting this timeframe in seeking their fourth extension.
2. Mr. Gorman is still experiencing problems with his heart and has been
undergoing further testing, including wearing a Holter heart monitor and taking a
stress test on May 26, 2015. This medical condition has kept Mr. Gorman from
working long hours on the brief in addition to completing other substantive tasks as
an appellate lawyer. Because of these complications, appellants retained Mike
Choyke of Wright & Close, LLP to assist Mr. Gorman in handling the appeal.
3. While coming on board the appeal, Mr. Choyke has faced deadlines of
his own leading up to the brief’s due date. Mr. Choyke participated in a trial last
week in Corpus Christi and has also been working on an appellate brief he must
file in this Court by May 27, 2015. See No. 14-14-00807-CV; The Petroleum
Workers Union of the Republic of Mexico v. James Gomez, as Receiver for Arriba
Limited, and Carlos Ryerson; in the Fourteenth Court of Appeals, Houston, Texas
(appellant’s brief due May 27, 2015); No. 2011-CCV-60142-3; Leticia Rodriguez
v. Whataburger Restaurants, LP, et al.; in the County Court at Law No. 3, Nueces
County, Texas (trial from May 11, 2015 to May 19, 2015),
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4. This series of events represents “exceptional circumstances” that
warrant a fourth extension of time, thereby satisfying the condition this Court
placed in its order of April 28, 2015. Appellants could never have foreseen the
health problems encountered by their lead appellate counsel. Nor could Mr.
Gorman have predicted these lasting complications when appellants moved for
their third extension. To make sure they can file a first-rate brief by the extended
deadline they have now requested, appellants have brought on additional appellate
counsel.
5. The Court should construe the procedural rules liberally and follow
the prevailing rule in Texas that calls for reaching and deciding the merits of this
appeal. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427
(Tex. 2004). Only the requested extension of time will entitle appellants to present
adequately the merits of their arguments for overturning the trial court’s judgment.
Appellants advise the Court they will seek no further extensions.
6. As the certificate of conference verifies, appellees (graciously) do not
oppose the relief requested by appellants. The facts giving rise to appellants’
fourth request for an extension fall within their appellate counsel’s personal
knowledge. See TEX. R. APP. P. 10.2(c).
Appellants pray the Court will grant the relief requested by this motion and
extend the time to file their brief to Monday, June 22, 2015.
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Respectfully submitted,
/s/ E. John Gorman
E. John Gorman
State Bar No. 08217560
jgorman@feldlaw.com
THE FELDMAN LAW FIRM LLP
Two Post Oak Central
1980 Post Oak Blvd., Suite 1900
Houston, TX 77056-3877
(713) 850-0700
(713) 850-8530 (fax)
COUNSEL FOR APPELLANTS
CERTIFICATE OF CONFERENCE
I certify conferring with counsel for the appellees, Dave Pybus, by email on
Thursday, May 21, 2015, about the relief sought by this motion, which his clients
do not oppose. This certificate complies with Texas Rule of Appellate Procedure
10.1(a)(5).
/s/ E. John Gorman
E. John Gorman
CERTIFICATE OF SERVICE
I certify delivering a true and correct copy of this fourth motion to extend
time to all counsel of record on May 22, 2015, in compliance with Texas Rule of
Appellate Procedure 9.5:
David L. Pybus
PREIS, PLC
24 Greenway Plaza, Suite 2050
Houston, TX 77046
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/s/ E. John Gorman
E. John Gorman
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