ACCEPTED
04-14-00655-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
1/9/2015 1:09:38 PM
KEITH HOTTLE
CLERK
04-14-00655-CV
VICTOR and IVARENE HOSEK
FILED IN
4th COURT OF APPEALS
Appellant SAN ANTONIO, TEXAS
01/9/2015 1:09:38 PM
V.
KEITH E. HOTTLE
Clerk
ROSALE SCOTT
Appellees
ON APPEAL TO THE FOURTH COURT OF APPEALS
FROM THE 81st JUDICIAL DISTRICT COURT
TRIAL CASE NO. 2011-53723
RESPONSE TO APPELLEE ON THE MOTION FOR EXTENSION OF
TIME
TO FILE APPELLANTS’ BRIEF
TO THE HONORABLE COURT OF APPEALS:
Counsel truly is swamped with work due to unpredictable delays in getting
reporters’ records in various cases filed, so this will be brief:
1. Counsel was not at fault in delaying the production of a record and it is
improper that Appellee suggest that she prepare the brief without the record.
She did not have the trial attorneys’ file and counsel for appellee will have the
benefit of the record;
2. Appellee has no justification for suggesting that Appellant go without
important procedural steps such as a motion for new trial to preserve error on
attorneys’ fees or, again, begin researching or writing her brief without aid of
the record to know what the issues are;
3. Whether Ms. Scott is currently receiving royalties is irrelevant: Counsel is
working on a contingent fee basis, so money is not preventing her from getting
zealous representation, and the supersedeas deposit was calculated to handle
any delay in her getting payments during this period. The Hoseks are only
receiving payment that are not at issue in this court case – repeat: NOT AT
ISSUE IN THIS CASE;
4. A huge block of time after receipt of the record was taken up because Appellee
chose to challenge a properly-set supersedeas first at the trial court level and
then at this appellate court level. Because net worth and substantial harm
exceptions were being argued by the Hoseks, counsel had to work with her
clients, “hands on”, to put together receipts for every expense the Hoseks have
paid during the last year – checks, receipts, stamped copies, day-by-day logs
and more, for three hundred and sixty-five days – and work with them on
getting proof for immediately needed repairs, including getting proof that the
repair was needed and getting detailed estimates of the repair’s cost. Work
on earlier-filed cases and work on this case was brought to a grinding halt for
literally weeks. All just to keep the benefit of a properly set supersedeas. If
counsel were not so adamantly opposed to filing motions for sanctions except
in the most grievous cases, Appellants would have filed a motion for sanctions
for filing of a frivolous pleading. There was no basis for challenging a
properly-set supersedeas.
5. Once Appellants won this challenge, counsel had to go back, first to the older
appeals she was working on, which would have been complete or almost
complete, had not the Hoseks faced this unnecessary challenge. She could
not, thanks to the challenge, even resume her work on this case, due to the
persistent presence of the older appeals. Again, counsel had not “loaded
herself down” with too many appeals to make more money. The existence of
this many appeals on her docket is due to the fact that every single appeal she
has taken in the last year has had unprecedented delays in the record being
filed – delays that were not counsel’s fault but which led to a “pile up”. It is
not appropriate for Appellee’s counsel to suggest that this counsel ask for
ninety-day extensions on the older appeals, simply to get this appeal done
within thirty days.
6. Counsel does not believe that she could get this brief done in thirty days even
if all older appeals were thrown to the wayside. The research that needs to be
done in this case does not involve a few speedy LEXIS searches. Counsel has
already done those. Research in poorly-indexed, multi-volume treatises is
required. The exact wording of a deed is relevant to this case. Appellants are
entitled to have adequate time spent on their case. And this is the first request
Appellants have made for an extension of the time for filing this brief.
7. Finally, the vitriolic and personal attack1 with which counsel for Appellees
has pursued this case – even making an issue of whether attorneys’ fees are
included in a supersedeas when the Supreme Court had just decided that issue
– has slowed the progress of this case down. Counsel for Appellants has
managed to respond with decorum, but has had to construct arguments to
counter the unnecessary ones as well as the appropriate ones. Pure animosity
on one side of the bar should not decide whether the Hoseks get a fair hearing
with the counsel of their choice2 handling the case.
CONCLUSION & PRAYER
The reason for this extension is not for delay but so that justice may be done.
Even an extension of thirty days would be inadequate because that would leave less
1
For example, allowing their argument to suggest that counsel was responsible for
the late record, when nothing could be further from the truth.
2
While I am not board certified, I was not a random choice. My work at Amoco
Production Company prior to my law career included land title work, and I spent
many years in an “oil and gas family”, in which I ran drillsite title. I received a
high grade in Advanced Oil and Gas law in law school and I have worked as an
appellate attorney for approximately twenty-two years. My work has included
winning multi-million-dollar oil and gas cases. If Appellee suggests that I should
“dump” this case, or any of my other cases, it would be an improper suggestion.
than one week each for completion of fairly complex appeals. Counsel did not
engage in poor planning, rather, the filing of the records took unpredictably long in
several cases which counsel anticipated to have long ago finished. Appellants ask
this Court for an extension of sixty-days of the deadline to file their brief, until March
9, 2015.
WHEREFORE, PREMISES CONSIDERED, APPELLANTS ask this Court
to extend the deadline for filing their Brief sixty days until March 9, 2015, and for
such other and further relief as may be just.
Respectfully submitted,
_____/s/ MB CHIMENE_________
THE CHIMENE LAW FIRM
Michele Barber Chimene
TBN 04207500
15203 Newfield Bridge Ln.
Sugar Land, TX. 77498
PH: (713) 474-5538; no fax
michelec@airmail.net
CERTIFICATE OF CONFERENCE
Appellants’ counsel has contacted Raquel Perez, counsel for Appellee, who
consulted with lead counsel Wade Caldwell and she replied that they would oppose
any extension longer than a week.
______/s/ MB CHIMENE________
CERTIFICATE OF SERVICE
A true and correct copy of this Motion for Extension has been served on
counsel for Appellees, Wade Caldwell and Raquel Perez, One Riverwalk Place, Ste.
1825, 700 North St. Mary’s, San Antonio, Texas 78205 on January 9, 2015 by ECF
and email.
______/s/ MB CHIMENE_________