RSL Funding, LLC v. Gregory S. Everett, the Prudential Insurance Company of America and PRUCO Assignment Corporation

Opinion

ACCEPTED 01-11-01070-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/13/2015 9:23:37 AM CHRISTOPHER PRINE CLERK

01-11-01070-CV

IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS AT HOUSTON 10/13/2015 9:23:37 AM CHRISTOPHER A. PRINE Clerk RSL Funding, LLC, Appellant, vs. Gregory S. Everett, The Prudential Insurance Company of America, and PRUCO Assignment Corporation, Appellees.

ON APPEAL FROM THE 11TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS CAUSE NO. 2009-41386-A

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA’S RESPONSE IN OPPOSITION TO RSL FUNDING, LLC’S LATEST MOTION TO EXTEND TIME TO FILE BRIEF OF APPELLANT

BAKER BOTTS L.L.P. Kevin T. Jacobs State Bar No. 24012893 Amy Pharr Hefley State Bar No. 24046046 One Shell Plaza 910 Louisiana Houston, Texas 77002 Tel. 713.229.1234 Fax: 713.229.1520 kevin.jacobs@bakerbotts.com amy.hefley@bakerbotts.com

ATTORNEYS FOR APPELLEE THE PRUDENTIAL INSURANCE COMPANY OF AMERICA The Prudential Insurance Company of America (“PICA”) respectfully

opposes appellant RSL Funding, LLC’s (“RSL”) Latest Motion to Extend Time to

File Brief of Appellant. This latest motion is in effect RSL’s sixth attempt to put

off filing an opening brief in its own appeal. PICA respectfully requests that this

Court deny RSL’s motion and dismiss this appeal for want of prosecution.

This is an appeal of a final judgment issued in August 2011 awarding

PICA attorneys’ fees in a wrongful garnishment action following this Court’s

determination that the judgment on which the garnishment action was based was

invalid.1 RSL’s appeal of the fee award was docketed in this Court on December

5, 2011, and the deadline for RSL’s opening brief was originally February 20,

2012. RSL then filed four motions to extend its deadline to file an opening brief.

When this Court stayed the case almost a year after the appeal began due to the

bankruptcy of Gregory Everett, RSL still had not filed an opening brief.

On August 11, 2015, this case was reinstated and this Court ordered

RSL to file its opening brief no later than 30 days from the date of the

reinstatement. Once again, RSL sought an extension of time to file its opening

1 See The Prudential Ins. Co. of Am. v. RSL Funding, LLC, No. 01-09-01037-CV, 2011 WL 286130, at *2 (Tex. App.—Houston [1st Dist.] Jan. 27, 2011, no pet.) (mem. op.) (holding that the judgment underlying the garnishment action was “constitutionally infirm due to lack of notice and service” on PICA); see also In re RSL Funding, LLC, No. 01-10-00664-CV, 2011 WL 286152, at *1 (Tex. App.—Houston [1st Dist.] Jan. 27, 2011) (orig. proceeding) (mem. op.) (dismissing as moot RSL’s mandamus petition challenging the trial court’s dissolution of the writ of garnishment against PICA because the judgment underlying the garnishment action was invalid).

2 brief, and Prudential did not oppose a single extension. This Court granted the

order, extending the deadline to file the appellate brief to October 12, 2015. At

12:21 pm on October 12, 2015 (the date its brief was due), RSL informed

Prudential that it would be filing for yet another 30-day extension to file this

opening brief. In support of its motion, RSL points to the refusal of the Texas

Supreme Court to grant RSL the full 30-day extension it requested in an unrelated

case it appealed to that court. The docket sheet indicates that it was RSL’s second

request for such an extension in that case, as well. See RSL Funding, LLC v.

Pippins, et al., Case No. 14-0457 (Tex.). Like the excuses RSL has given in the

past, this latest excuse is based on circumstances known to RSL well in advance of

the filing deadline and does not justify granting yet another extension of time in

this case.

RSL’s repeated, last-minute efforts to extend its briefing deadline

should not be condoned and are particularly egregious in an appeal that has now

been pending for nearly 4 years. Accordingly, PICA respectfully requests that this

Court deny RSL’s latest extension request and put an end to RSL’s efforts to

prevent final justice in this garnishment action by dismissing this appeal for want

of prosecution.

3 Respectfully submitted,

BAKER BOTTS L.L.P.

By: /s/ Amy Pharr Hefley Kevin T. Jacobs State Bar No. 24012893 Amy Pharr Hefley State Bar No. 24046046 One Shell Plaza 910 Louisiana Houston, Texas 77002 Tel. 713.229.1234 Fax: 713.229.1520 kevin.jacobs@bakerbotts.com amy.hefley@bakerbotts.com

ATTORNEYS FOR APPELLEE THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

4 CERTIFICATE OF SERVICE I hereby certify that on the 13th day of October, 2015, a true and

correct copy of the foregoing document was served on the following counsel of

record as indicated below:

Mr. E. John Gorman Mr. Stewart A. Feldman Mr. John R. Craddock The Feldman Law Firm LLP Two Post Oak Central 1980 Post Oak Boulevard, Ste. 1900 Houston, Texas 77056 jgorman@feldlaw.com sfeldman@feldlaw.com jcraddock@feldlaw.com (Certified Mail and CaseFileXpress)

ATTORNEYS FOR APPELLANT RSL FUNDING LLC

Mr. George Tate George J. Tate, PLLC 130 Main Street Abbeville, Louisiana 70511 (Certified Mail)

ATTORNEY FOR GREGORY S. EVERETT

/s/ Amy Pharr Hefley Amy Pharr Hefley