Essex Insurance Company v. Rafael Zuniga

• Court: Court of Appeals of Texas
• Decided: September 18, 2015
• Docket: 04-15-00587-CV
• Status: Published

Opinion

ACCEPTED 04-15-00587-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/18/2015 5:08:27 PM KEITH HOTTLE CLERK

04-15-00587-CV No. _____

FILED IN 4th COURT OF APPEALS In the Fourth District Court of Appeals SAN ANTONIO, TEXAS San Antonio, Texas 09/18/2015 5:08:27 PM KEITH E. HOTTLE Clerk ESSEX INSURANCE COMPANY, Appellant,

v.

RAFAEL ZUNIGA, Appellee.

On Appeal from the 229th Judicial District Court Duval County, Texas Cause No. DC-13-112-A

UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

Appellant Essex Insurance Company, (“Essex”) respectfully files this

Unopposed Motion for Extension of Time to File Notice of Appeal. The current

deadline for filing the Notice of Appeal is September 5, 2015. Essex requests a 15-

day extension of time for a new deadline of September 20, 2015.

The reasons for this request are as follows:

1. This is an appeal from an Order Vacating Order Denying Rule 91a

Motions to Dismiss, Granting Rule 91a Motions to Dismiss, and Awarding Zero

Dollars in Attorneys’ Fees (“Final Order”) signed March 26, 2015, that was severed into and made final by an Order Granting Defendant Essex Insurance Company’s

Motion to Sever (“Severance Order”) signed on August 6, 2015. The Final Order

was signed in a case styled Rafael Zuniga v. San Diego Tortilla & Essex Ins. Co.,

No. DC-13-112, in the 229th District Court of Duval County, Texas (“Original

Cause”) and severed into Cause No. DC-13-112-A (“Severed Cause”). Copies of

the Final Order and Severance Order, as well as the Notice of Appeal filed today in

the district court, are attached as Exhibits A-C.

2. The parties to this Severed Cause have settled their differences and are

in the process of executing final settlement documents. However, the deadline for

filing this motion was expiring, and in an abundance of caution and in order to avoid

losing the right to appeal from the decision of the district court, Essex files this

motion. If and when the final settlement agreement is fully executed and becomes

effective, resolving all matters between these parties, Essex will promptly dismiss

the appeal. But in the event that the settlement is not fully consummated, Essex will

fully prosecute the appeal.

3. Appellee Rafael Zuniga does not oppose this motion for extension.

4. The failure to appeal by September 5, 2015, was not deliberate or

intentional, but rather was based on a good-faith belief that the parties had fully

settled their differences and that the settlement documents would be executed in sufficient time to avoid risking the appeal. This extension is not sought for the

purposes of delay. No prior extension has been granted for this deadline.

5. The facts contained in this motion are based on the official district court

records or within the personal knowledge of the undersigned and therefore, no

verification is necessary under Texas Rule of Appellate Procedure 10.2.

As set forth in the Certificate of Conference below, this motion for extension

of time is Unopposed.

For these reasons, Essex requests that the Unopposed Motion for Extension

of Time to File Notice of Appeal be extended 15 days to September 20, 2015.

Respectfully submitted,

/s/ Joseph A. Ziemianski Joseph A. Ziemianski State Bar No. 00797732 jziemianski@cozen.com Bryan P. Vezey State Bar No. 00788583 bvezey@cozen.com COZEN O’CONNOR One Houston Center 1221 McKinney, Suite 2900 Houston, Texas 77010 Telephone: (832) 214-3900 Facsimile: (832) 214-3905

ATTORNEYS FOR APPELLANT ESSEX INSURANCE COMPANY CERTIFICATE OF CONFERENCE I certify that on September 18, 2015, I conferred with counsel for Appellee

Rafael Zuniga, and he stated that his client does not oppose the relief sought in this

motion for extension of time.

/s/ Bryan P. Vezey Bryan P. Vezey CERTIFICATE OF SERVICE On September 18, 2015, I electronically filed this Unopposed Motion for

Extension of Time to File Notice of Appeal with the Clerk of the Court using the

eFile.TXCourts.gov electronic filing system, which will send notification of such

filing to the following (unless otherwise noted below).

Thomas J. Henry State Bar No. 09484210 tjhenry@thomasjhenrylaw.com Roger L. Turk State Bar No. 00788561 rlturk@thomasjhenrylaw.com LAW OFFICES OF THOMAS J. HENRY 521 Starr Street Corpus Christi, Texas 78401 Telephone: (361) 985-0600 Facsimile: (361) 985-0601

ATTORNEYS FOR APPELLEE RAFAEL ZUNIGA

/s/ Bryan P. Vezey Bryan P. Vezey EXHIBIT A EXHIBIT B EXHIBIT C CAUSE NO. DC-13-112-A

RAFAEL ZUNIGA § IN THE DISTRICT COURT OF § V. § DUVAL COUNTY, TEXAS § ESSEX INSURANCE COMPANY § 229th JUDICIAL DISTRICT

NOTICE OF APPEAL

Essex Insurance Company, Defendant, in the above-referenced cause, gives this notice that

it is appealing the Order Vacating Order Denying Rule 91a Motions to Dismiss, Granting Rule

91a Motions to Dismiss, and Awarding Zero Dollars in Attorneys’ Fees signed March 26, 2015

(“Final Order”), that was severed into and made final by an Order Granting Defendant Essex

Insurance Company’s Motion to Sever signed on August 6, 2015, and all prior and

contemporaneous rulings that are merged into the Final Order. The appeal is taken to the Fourth

Court of Appeals at San Antonio, Texas.

/s/ Joseph A. Ziemianski Joseph A. Ziemianski State Bar No. 00797732 jziemianski@cozen.com Bryan P. Vezey State Bar No. 00788583 bvezey@cozen.com COZEN O’CONNOR One Houston Center 1221 McKinney, Suite 2900 Houston, Texas 77010 Telephone: (832) 214-3900 Facsimile: (832) 214-3905

ATTORNEYS FOR DEFENDANT ESSEX INSURANCE COMPANY CERTIFICATE OF SERVICE The undersigned certifies that, on September 18, 2015, Defendant’s Notice of Appeal was

electronically filed with the Clerk of Court using the electronic filing system of the Court, and a

true and correct copy of the foregoing was additionally served as follows:

Thomas J. Henry State Bar No. 09484210 tjhenry@thomasjhenrylaw.com Roger L. Turk State Bar No. 00788561 rlturk@thomasjhenrylaw.com LAW OFFICES OF THOMAS J. HENRY 521 Starr Street Corpus Christi, Texas 78401 Telephone: (361) 985-0600 Facsimile: (361) 985-0601

ATTORNEYS FOR PLAINTIFF RAFAEL ZUNIGA

/s/ Bryan P. Vezey Bryan P. Vezey