Rufina Reyes Yanez v. American General Life Insurance Company

Opinion

ACCEPTED 04-15-00548-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/13/2015 4:43:18 PM KEITH HOTTLE CLERK

CAUSE NO. 04-15-00548-CV

IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS 11/13/2015 4:43:18 PM SAN ANTONIO, TEXAS KEITH E. HOTTLE Clerk

RUFINA REYES YANEZ,

Appellant

v.

AMERICAN GENERAL LIFE INSURANCE COMPANY,

Appellee

FROM THE 341 ST JUDICIAL DISTRICT COURT, WEBB COUNTY, TEXAS

TRIAL COURT NO. 2014CVF000504-D3

HONORABLE REBECCA RAMIREZ PALOMO, JUDGE PRESIDING

MOTION TO REINSTATE APPEAL

TO THE HONORABLE COURT OF APPEALS:

Comes Now Appellant, RUFINA REYES YANEZ, asking the Honorable

Court of Appeals to reinstate her appeal, which was dismissed on October 28,

2015, for want of prosecution. In support thereof Appellant shows:

Page 11 1. As evidenced by this motion and the attached affidavit, good cause

exists for reinstating the appeal. In Verbugt v.Dormer, 959 s.w. 2d 615, 616-17

(Tex. 1997), the Texas Supreme Court said:

" This court has never wavered from the principal that appellate courts

should not dismiss an appeal for a procedural defect whenever any arguable,

interpretation of the Rules of Appellate Procedure would preserve the appeal. .. We

have repeatedly instructed the courts of appeals to construe the Rules of Appellate

Procedure reasonable yet liberally, so that the right to appeal is not lost by

imposing requirements not absolutely necessary to effect the purpose of a rule."

2. The motion complies with Rule 25.1(g) of the Texas Rules of

Appellate Procedure. See also Sweed v. Nye, 323 S. W. 3rd 873, 874 (Tex. 2010);

Warwick Towers Council of Co-owners v. Park Warwick. L.P., 244 S. W. 3rd 838,

839 (Tex. 2008).

3. During the past few months Appellant's attorney has suffered from ill

health, including migraine headaches so severe that they cause him to miss work

and a recent episode while in court that cause him to seek medical intervention.

Additionally, the legal assistant/secretary of Appellant's attorney has been

suffering from anxiety attacks the last two months that have resulted in frequent

absences from work and failure to attend to assigned tasks. See Appellanf s

affidavit, attached as Exhibit A to this motion.

Page 12 4. Appellant's counsel has also been deeply involved in a multi-vehicle

accident which resulted in six deaths and injuries to others, and in which discovery

has been extensive, with more than twenty-five attorneys and more than 30

plaintiffs involved, Cause No. 15-01-13556, filed in the 193 rd District Court of

Zavala County, Texas, and styled as David Rodriguez and Maribel Rodriguez, et

aI., v. Rose Rock Midstream Field Services, LLC, et al.

5. Appellant has a meritorious appeal. This case involves Appellee's

failure to pay the insurance proceeds of a life insurance policy to Appellant

promptly. Appellee filed a motion for summary judgment and other pleadings

untruthfully stating that Appellee did not learn until late 2012 that Appellant's

husband had died. Appellant filed a motion pursuant to Rule 201 of the Texas

Rules of Evidence for the trial court to take mandatory judicial notice of

information and documents which ineluctably proved that Appellee and its

attorneys had learned on November 1, 2001, and in February of 2002, that JULIO

had died on May 26, 2001. The trial Court failed to take the mandatory judicial

notice. Appellant has ordered the Reporter's Record of the July 15,2015, hearing

on the motion for mandatory judicial notice of adjudicative facts and has asked the

District Clerk to prepare and file a Supplemental Clerk's Record.

Page 13 7. If the motion to reinstate the appeal is denied Appellant will have to

file a petition for review with the Texas Supreme Court or will have to file a

petition for a bill of review in the 341 st District Court.

8. PRAYER. Premises considered, Appellant RUFINA REYES

YANEZ asks the Honorable Court of Appeals:

a. To enter an order reinstating the appeal; and

b. To enter an order extending the time for Appellant to file her

brief until 30 days after the Appellate Record has been completed.

ARMANDO TREVINO Attorney At Law State Bar No. 20211100 1519 Washington St, Suite # 1. Laredo, Texas 78040 Telephone No. (956) 726-1638 Email: 9c1l113ndQ....!.IT_.{u1oliiW(~lihotlIEUl.com Attorney For Appellant

17A Subscribed and sworn to before me on the V day of November, 2015, by

Armando Trevino, Attorney for Appellant.

Page 14 CERTIFICATE OF SERVICE

I certify that on November t1 ,2015, I served a copy of the Motion To Reinstate Appeal was sent via hand-delivery or e-service to JASON A.

RICHARDSON, EDISON, McDOWELL & HETHERINGTON LLP, 3200

Southwest Freeway, Suite 2100, Houston, Texas 77027,

iason.richardson@emhllp.com, Webb County District Clerk's office Esther

Degollado, and Ana Alcantar.

Page 15 EXHIBIT A AFFIDAVIT OF ARMANDO TREVINO

STATE OF TEXAS §

COUNTY OF WEBB §

My name is Armando Trevifio. I am fully competent to make this affidavit

based upon my personal knowledge of the facts stated herein. All of the facts are

true and correct. Upon my oath and on penalty of perjury I depose as follows:

1. I am the attorney for Appellant RUFINA REYES YANEZ.

2. During the last few months I have suffered from debilitating migraine

headaches that have caused me to miss work. A few days ago, while in Court, I

suffered an attack of vertigo and had to seek medical intervention. My physician

opinioned that I was under severe stress.

3. Julie Brewster has been my paralegal/legal secretary for many years.

During the last two months she has suffered from anxiety/panic attacks which have

caused her to miss work and to accomplish her assigned tasks.

4. I am the attorney for Carmen Veyro Costales, mother of Sergio Javier

Veyro, Sr., in Cause No. I5-0I-I3355-CV, filed in the I93 rd Judicial District Court

of Zavala County, Texas. Sergio was fatally injured on January 15, 2015, in a

multi-fatality, multi-vehicle accident. Discovery is ongoing and to date I have

boxes of discovery motions, responses to discovery, expert reports, and

depositions.

Page 11 5. I seek reinstatement of this Appeal so thatjus~ce may be done. ;/ Armando Trevino

Subscribed and sworn to before me on the /3 # day of November, 2015, by

Page 12