United Services Automobile Association v. Joseph Hayes, Jr and Joanne Hayes

Opinion

ACCEPTED 01-14-00133-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/10/2015 2:26:25 PM CHRISTOPHER PRINE CLERK

No. 01-14-00133-CV ___________________________________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST COURT OF APPEALS DISTRICT OF TEXAS 6/10/2015 2:26:25 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk ___________________________________________________________

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant/Cross-Appellee v. JOSEPH HAYES, JR. AND JOANNE HAYES, Appellees/Cross-Appellants ___________________________________________________________ On Appeal from Cause No. 2009-63319 In the 165th Judicial District Court of Harris County, Texas ___________________________________________________________ APPELLANT UNITED SERVICES AUTOMOBILE ASSOCIATION’S REPLY TO RESPONSE TO ITS MOTIONS FOR LEAVE TO FILE TWO-PAGE SUPPLEMENT TO ITS APPELLANT’S BRIEF AND TO EXCEED WORD LIMIT BY 250 WORDS ___________________________________________________________

Levon G. Hovnatanian State Bar No. 10059825 hovnatanian@mdjwlaw.com Christopher W. Martin State Bar No. 13057620 martin@mdjwlaw.com Kevin G. Cain State Bar No. 24012371 cain@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile TO THE HONORABLE COURT OF APPEALS:

Comes now the appellant/cross-appellee, United Services Automobile

Association, and respectfully files this reply to the response to its motions for leave

to file the two-page supplement to its appellant’s brief and to exceed the word limit

by 250 words.

Texas courts’ “consistent policy has been to apply rules of procedure

liberally to reach the merits of the appeal whenever possible.” Warwick Towers

Council of Co–Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008);

accord Stumhoffer v. Perales, 2015 WL 730592, at *3 (Tex. App.—Houston [1st

Dist.] 2015, pet. filed). That is the reason that USAA filed its motions—to ensure

that USAA has briefed the points at issue specifically in its capacity as an

appellant.

The Hayes say that “the rules of appellate procedure do not allow an

appellant to include in a reply brief a new issue in response to some matter pointed

out in the appellee’s brief but not raised in the appellant’s opening brief” and “[a]n

appellant is required to present all issues to be considered on appeal in appellant’s

brief.” Response at 3. That is why USAA asked for leave to supplement

specifically its opening brief as appellant—to ensure that USAA has briefed the

points at issue in that particular brief.

1 USAA’s supplement to its appellant’s brief is two pages long. The Court

has filed it, and the Hayes are of course free to respond to it.

USAA respectfully asks the Court to grant its motions.

Respectfully submitted,

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

By: /s/ Kevin G. Cain Levon G. Hovnatanian State Bar No. 10059825 hovnatanian@mdjwlaw.com Christopher W. Martin State Bar No. 13057620 martin@mdjwlaw.com Kevin G. Cain State Bar No. 24012371 cain@mdjwlaw.com 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

ATTORNEYS FOR APPELLANT UNITED SERVICES AUTOMOBILE ASSOCIATION

2 CERTIFICATE OF COMPLIANCE This is to certify that this computer-generated APPELLANT UNITED SERVICES AUTOMOBILE ASSOCIATION’S REPLY TO RESPONSE TO ITS MOTIONS FOR LEAVE TO FILE TWO-PAGE SUPPLEMENT TO ITS APPELLANT’S BRIEF AND TO EXCEED WORD LIMIT BY 250 WORDS contains 251 words. /s/ Kevin G. Cain Kevin G. Cain Dated: June 10, 2015

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this APPELLANT UNITED SERVICES AUTOMOBILE ASSOCIATION’S REPLY TO RESPONSE TO ITS MOTIONS FOR LEAVE TO FILE TWO-PAGE SUPPLEMENT TO ITS APPELLANT’S BRIEF AND TO EXCEED WORD LIMIT BY 250 WORDS has been served on the following individuals on this, the 10th day of June, 2015, via electronic filing, with a courtesy copy sent via e-mail to Jennifer Bruch Hogan: Jennifer Bruch Hogan jhogan@hoganfirm.com Richard P. Hogan, Jr. rhogan@hoganfirm.com HOGAN & HOGAN 909 Fannin, Suite 2700 Houston, Texas 77010

René M. Sigman rmsigman@mostynlaw.com THE MOSTYN LAW FIRM 3810 W. Alabama Street Houston, Texas 77027 Randal Cashiola rcashiola@cashiolabeanlaw.com CASHIOLA & BEAN 2090 Broadway Street, Suite A Beaumont, Texas 77701 /s/ Kevin G. Cain Kevin G. Cain