Ivarene and Victor Hosek v. Rosale Scott

• Court: Court of Appeals of Texas
• Decided: January 8, 2015
• Docket: 04-14-00655-CV
• Status: Published

Opinion

ACCEPTED 04-14-00655-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/8/2015 4:53:51 PM KEITH HOTTLE CLERK NO. 04-14-00655-CV

IVARENE HOSEK AND VICTOR § IN THE FOURTH HOSEK, § FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS Appellants, g 01/8/2015 4:53:51 PM v. E COURT KEITHOFE. APPEALS HOTTLE Clerk

ROSALE SCOTT, g

Appellee. SAN ANTONIO, TEXAS APPELLEE’S RESPONSE TO APPELLANTS’ MOTION FOR EXTENSION OF TIME TO FILE APPELLANTS’ BRIEF Appellee ROSALE SCOTT files this Response to Appellants’ Motion for Extension of

Time to File Appellants’ Brief and in suppoit thereof, respectfully shows the Court as follows:

1. Normally, Appellee’s counsel does not oppose extensions, but Ms. Chi1nene’s

well—established pattern of unreasonable delays should factor into the Court’s limiting this

extension to no more than thirty (30) days.

2. Appellants’ Brief was due on January 7, 2015. Rather than file their request to

extend their deadline in advance, Appellants decided to serve their 60-day Motion for Extension

of Time to File Appellants’ Brief (“the Motion”) on January 7, 2015, the date their brief was due.

3. First, summary judgment was granted in this case on or about March 3, 2014. See

CR 147-149. A finaljudgment was filed in this case on or about June 19, 2014. See C.R. 2I0—

215 (Final Judgment). Accordingly, it has been over ten months since summary judgment was

granted in this case and nearly seven months since the trial court issued a Final Judgment.

Appellants’ argument that “Counsel has begun research” in this case, is simply inadequate. See

the Motion atp. 2. 4. Second, Appellants have already had their time for filing a brief automatically

extended by the filing of post-trial motions. Following the final judgment, Appellants filed a

Motion for New Trial, which they never even set for hearing. See CR 248-250. The obvious

basis that they filed the Motion for New Trial, was to extend their deadlines. 5. Third, Appellants have had their time for filing a brief extended by their delays in

securing the Reporters’ Record. The Appellate record was due to be filed by October 17, 2014.

See Tex. R. App. P. 35.1. However, the Court received Notice of a late filed Record. See

Fourth Court Correspondence dated October 21, 2014, Court File. The Court granted an

extension on the filing of the Reporters’ Record until December 1, 2014. See Court Order dated

October 29, 2014, Court File. Appellants’ deadlines were further extended because the

Reporters’ Record was not filed on the extended deadline but was instead filed on December 8,

2014. See Fourth Court Correspondence dated December 8, 2014, Court File. Accordingly,

Appellants automatically received approximately a seven week extension because of the delays

in the filing of the Reporters’ Record.

6. Finally, it is important to note that Appellants are not being prejudiced by their

delay because Appellants are receiving royalty payments during the appeal. In fact, they have

received nearly $195,000.00 in royalties between January and November 2014. See Affidavit of

Ivarene Hosek at p. 2 attached to Appellants’ Reply in Opposition to Increasing Supersedeas

Bond, Court File. Scott, who prevailed on summary judgment over ten months ago, has not

received any royalties.

7. Appellants have had an adequate amount of time in which to research and file

their brief. It has been over ten months since summary judgment was granted and nearly seven

months since a final judgment was entered. A sixty day extension would result in the Appellants’ initial brief being filed approximately a year after the trial COUIT initially granted

summary judgment. Moreover, Appellants continue to receive royalties during the appeal

whereas Scott, who has been determined to own fifty percent of the minerals under the Property

in question, is not receiving any royalties. Accordingly, Appellants request for a sixty day

extension should be denied and at most, this Court should permit Appellants an additional thirty

days in which to file their brief.

BARTON, EAST & CALDWELL, P.L.L.C. One Riverwalk Place, Suite 1825 700 N. St. Mary’s Street San Antonio, Texas 78205 Telephone: (210)225-1655 Facsimile: (210) 225-8999

By: /s/ WADE CALDWELL G. G. WADE CALDWELL StateBar No. 03621020 Email: gcaldwell@beclaw.c01n RAQUEL G. PEREZ StateBar No. 00784746 Email: rperez@beclaw.com

ATTORNEYS FOR APPELLEE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document will be served in the manner

indicated below this 8th day of January, 2015 upon the following:

Michele Barber Chimene The Chimene Law Firm 15203 Newfleld Bridge Ln. ___ __ First Class Mail Facsimile Hand Delivery Sugar Land, TX 77498 J; Electronic Transmission Email: michelec@ai1"mail.net

Robert J Ogle .

Attorney at Law __ First Class Facsimile Mail

508 E. San Antonio Street Boerne, Texas 78006 Facsimile: (830) 249-8508 _

A _W Hand Delivery Electronic Transmission

Email: bob@ogleattorney.com

Counsel for Appellants

/s/ G. WADE CALDWELL G. WADE CALDWELL ILAQUEL G. PEREZ M:\2000\2200 OIL AND GAS CLl'ENTS\l2l Hosck V ScoII\4TH COA APl’EAL\Pleadings\Appcllc‘s Response to Appellants’ Molion for Extension ofTime to File Appellants’ Briefidocx