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

• Court: Court of Appeals of Texas
• Decided: May 22, 2015
• Docket: 14-14-00838-CV
• Status: Published

Opinion

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),

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.

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