RSL-3B-IL, Ltd. v. the Prudential Insurance Company of America and Prudential Structured Settlement Company F/K/A Prudential Property and Casualty Insurance Company of Holmdel, New Jersey

Opinion

ACCEPTED 01-14-00482-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 2/23/2015 3:28:15 PM CHRISTOPHER PRINE CLERK

NO. 01-14-00482-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 2/23/2015 3:28:15 PM FOR THE FIRST DISTRICT OF TEXAS CHRISTOPHER A. PRINE Clerk

RSL-3B-IL, LTD.

v.

THE PRUDENTIAL INSURANCE CO. OF AMERICA, ET AL.

ON APPEAL FROM THE 269TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS

RSL-3B-IL, LTD.’S UNOPPOSED SECOND MOTION TO EXTEND TIME TO FILE REPLY BRIEF OF APPELLANT

E. John Gorman State Bar No. 08217560 jgorman@feldlaw.com John R. Craddock State Bar No. 04969800 jcraddock@feldlaw.com THE FELDMAN LAW FIRM LLP Two Post Oak Central 1980 Post Oak Boulevard, Ste. 1900 Houston, TX 77056-3877 Telephone: (713) 850-0700 Facsimile: (713) 850-8530

COUNSEL FOR APPELLANT RSL-3B-IL, LTD.

MAY IT PLEASE THE COURT:

Appellant RSL-3B-IL, Ltd. (“RSL-3B”) moves the Court for another 20-day

extension of time to file its reply brief due to the illness of its counsel. See TEX. R.

APP. P. 10.5(b), 38.6(d). The extended deadline of Monday, March 16, 2015 will roll

over from a weekend due date. Id. 4.1(a). A serious medical condition suffices as a

“reasonable explanation” to support this second request for extending the deadline

for filing the reply brief of appellant in this ordinary appeal.

1. On February 3, 2015, the Court extended the deadline for RSL-3B to file

its reply brief to Monday, February 23, 2015. See TEX. R. APP. P. 10.5(b)(1)(A),

38.6(a). In the interim, counsel for RSL-3B, E. John Gorman, fell seriously ill from

an infection in his lower left leg (cellulitis). Doctors also suspected a blood clot. Mr.

Gorman’s medical condition required a trip to the emergency room, two ultrasound

tests, heavy doses of antibiotics, and multiple visits with his physician.

2. RSL-3B respectfully requests more time to file its reply brief because of

these extenuating circumstances. Mr. Gorman has missed the last two weeks of work,

thereby eating up most of the previous extension. Nor can Mr. Gorman work

extended hours at this point in his recovery. Rule 38.6(d) authorizes RSL-3B to move

for an extension “before or after the date the brief is due.” See TEX. R. APP. P.

38.6(d). RSL-3B is in turn meeting this time frame.

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3. This series of events represents a “mischance” that plausibly states

circumstances justifying an extension. Cf. Hone v. Hanafin, 104 S.W.3d 884, 886

(Tex. 2003) (per curiam). Mr. Gorman’s illness reasonably explains the need for

more time. As such, RSL-3B neither deliberately nor intentionally caused any delay

in the current briefing schedule. See id.

4. Under Rule 10’s “liberal standard” for extensions, RSL-3B has carried

its burden as the movant in reasonably explaining the basis for relief. Id. at 886-87;

see TEX. R. APP. P. 10.5(b)(1)(c). According to the supreme court, “any conduct

short of deliberate or intentional noncompliance qualifies as inadvertence, mistake,

or mischance.” Hone, 104 S.W.3d at 886-87. The facts recited by this motion clear

this low hurdle.

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).

6. As the certificate of conference verifies, neither of the appellees that

filed a brief opposes the relief sought by this motion. The facts giving rise to RSL-

3B’s second request for an extension as to the reply brief fall within its appellate

counsel’s personal knowledge. See TEX. R. APP. P. 10.2(c).

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RSL-3B prays the Court will grant the relief requested by this motion and

extend the time to file the reply brief of appellant to Monday, March 16, 2015.

Respectfully submitted,

/s/ E. John Gorman E. John Gorman State Bar No. 08217560 jgorman@feldlaw.com John R. Craddock State Bar No. 04969800 jcraddock@feldlaw.com THE FELDMAN LAW FIRM LLP Two Post Oak Central 1980 Post Oak Boulevard, Ste. 1900 Houston, TX 77056-3877 (713) 850-0700 (713) 850-8530 (fax)

COUNSEL FOR APPELLANT RSL-3B-IL, LTD.

CERTIFICATE OF CONFERENCE

I certify contacting counsel for all of the appellees, Stephen Harris, by email on Monday, February 23, 2015, about the relief sought by this motion, which his clients do not oppose.

/s/ E. John Gorman E. John Gorman

CERTIFICATE OF SERVICE

I certify delivering a true and correct copy of this second motion for extension as to the reply brief to all counsel of record on February 23, 2015, in compliance with Texas Rule of Appellate Procedure 9.5:

Patrick Larkin THE LARKIN LAW FIRM PC 11200 Broadway Street, Suite 2705 Pearland, Texas 77584

Stephen R. Harris DRINKER BIDDLE & REATH LLP One Logan Square, Suite 2000 Philadelphia, Pennsylvania 19103

Counsel For The Prudential Appellees

Earl Nesbitt NESBITT, VASSAR & MCCOWN, LLP 15851 Dallas Parkway, Suite 800 Addison, Texas 75001

Counsel for Settlement Capital Corporation

/s/ E. John Gorman E. John Gorman

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