ACCEPTED
03-14-00485-CV
6906619
THIRD COURT OF APPEALS
September 14, 2015 AUSTIN, TEXAS
9/14/2015 11:44:36 AM
JEFFREY D. KYLE
CLERK
03-14-00485-CV
IN THE THIRD COURT OF APPEALS RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
9/14/2015 11:44:36 AM
JEFFREY D. KYLE
JOHN REED, JR., Clerk
Appellant
v.
FARMERS INSURANCE GROUP,
Appellee
On Appeal from Cause No. 259,941-C
In the 169th Judicial District Court of Bell County, Texas
APPELLEE FARMERS INSURANCE GROUP’S RESPONSE
TO APPELLANT’S MOTION TO EXTEND TIME TO FILE MOTION FOR
EN BANC RECONSIDERATION
Kevin G. Cain Levon G. Hovnatanian Christopher W. Martin
State Bar No. 24012371 State Bar No. 10059825 State Bar No. 13057620
cain@mdjwlaw.com hovnatanian@mdjwlaw.com martin@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700—Telephone
(713) 222-0101—Facsimile
Michael Watson
State Bar No. 24008246
watson@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500—Telephone
(214) 420-5501—Facsimile
TO THE HONORABLE COURT OF APPEALS:
Comes now the appellee, Farmers Insurance Group, and responds to Mr.
Reed’s Motion to Extend Time to File Motion for En Banc Reconsideration. As
discussed below, the Court should deny the motion.
I. THE MOTION IS UNTIMELY.
Mr. Reed states that “the deadline to file this particular motion was Sept. 5,
2015 but since that day was on a Saturday and Monday was a holiday, appellant is
entering his motion into the U S Mail on Tuesday Sept. 8, 2015.” Motion at 1.
The Court received the motion on September 10, 2015.
But the deadline to file a motion to extend time to file a motion for en banc
reconsideration was not September 5. The Court issued its judgment on
Wednesday, August 5, 2015. Thus, the deadline to file a motion for en banc
reconsideration was Thursday, August 20, 2015. See TEX. R. APP. P. 49.7 (“A
party may file a motion for en banc reconsideration as a separate motion, with or
without filing a motion for rehearing. The motion must be filed within 15 days
after the court of appeals’ judgment or order, or when permitted, within 15 days
after the court of appeals’ denial of the party’s last timely filed motion for
rehearing or en banc reconsideration. . . .”). Correspondingly, the deadline to file a
motion for extension of time to file a motion for en banc reconsideration was
Friday, September 4, 2015. See TEX. R. APP. P. 49.8 (“A court of appeals may
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extend the time for filing a motion for rehearing or en banc reconsideration if a
party files a motion complying with Rule 10.5(b) no later than 15 days after the
last date for filing the motion.”).
Mr. Reed’s motion to extend time was not timely. For this reason alone, the
Court should deny the motion.
II. EVEN IF THE MOTION HAD BEEN TIMELY, EN BANC
RECONSIDERATION COULD NOT BE WARRANTED.
Even if the motion to extend time had been timely, the Court should deny it
because the granting of it could not lead to the grant of reconsideration en banc.
The Court dismissed Mr. Reed’s appeal for want of prosecution—he “provided no
explanation of his ongoing failure to file a brief, let alone filed one.” Opinion at 2.
That ruling could not be a proper basis for reconsideration en banc.
“En banc consideration is generally disfavored[.]” Wal-Mart Stores, Inc. v.
Miller, 102 S.W.3d 706, 708 n.1 (Tex. 2003); accord TEX. R. APP. P. 41.2(c). En
banc review “should not be ordered unless necessary to secure or maintain
uniformity of the court’s decisions or unless extraordinary circumstances require
en banc consideration.” TEX. R. APP. P. 41.2(c).
Here, en banc review is not needed to “secure or maintain uniformity of the
court’s decisions.” There is nothing in the Court’s routine opinion dismissing the
appeal for want of prosecution that conflicts with one of its previous opinions.
2
Nor could this case meet the standard of “extraordinary circumstances.” Cf.
Kansas City S. Ry. Co. v. Oney, 380 S.W.3d 795, 814 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (Frost, J., concurring in denial of en banc review) (even where
“the presented issues are important to the jurisprudence,” the “prerequisites for en
banc consideration [were] not . . . satisfied” and “the high threshold for en banc
consideration [was] not . . . met”); Temple v. State, 342 S.W.3d 572, 630 (Tex.
App.—Houston [14th Dist.] 2010) (McCally, J., dissenting from denial of en banc
review) (en banc review denied even where issue was “[a]ppellant’s entitlement to
a full and constitutionally protected review of the evidence in this murder case”),
aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013); S.E.A. Leasing, Inc. v. Steele, 264
S.W.3d 71, 72 (Tex. App.—Houston [1st Dist.] 2007) (Keyes, J., dissenting from
denial of en banc review) (en banc review denied even where “[t]he panel opinion .
. . add[ed] new and unprecedented hurdles to appellants’ preservation of legal
sufficiency points of error”); Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d) (Jennings, J., concurring in denial of en banc
review) (panel’s holding regarding the State’s “uniquely egregious argument” did
not constitute an “extraordinary circumstance”). Extraordinary circumstances
simply do not exist here.
3
The granting of Mr. Reed’s motion could not lead to the grant of
reconsideration en banc. For this reason alone, even if the motion had been timely,
the Court should deny it.
III. CONCLUSION
The original deadline for Mr. Reed to file his brief was Monday, December
1, 2014. See TEX. R. APP. P. 38.6(a) (setting deadline for appellant’s brief in non-
accelerated appeal as 30 days from date complete record was filed); TEX. R. APP. P.
4.1(a) (method of computing time). After four extensions and a warning from the
Court that his brief was overdue and that the appeal could be dismissed for want of
prosecution if he did not respond with a reasonable explanation, the Court
dismissed the appeal over eight months after the original brief deadline. After all
the latitude the Court has graciously provided him, Mr. Reed is not due any more
time for anything, let alone on the basis of an untimely motion.
For these reasons, Farmers Insurance Group asks the Court to deny the
motion.
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Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ Levon G. Hovnatanian
Levon G. Hovnatanian
State Bar No. 10059825
hovnatanian@mdjwlaw.com
Kevin G. Cain
State Bar No. 24012371
cain@mdjwlaw.com
Christopher W. Martin
State Bar No. 13057620
martin@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ Michael Watson
Michael Watson
State Bar No. 24008246
watson@mdjwlaw.com
16000 N. Dallas Parkway, Suite 800
Dallas, TX 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile
ATTORNEYS FOR APPELLEE
FARMERS INSURANCE GROUP
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CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated Response to Motion to Extend
Time to File Motion for En Banc Reconsideration contains 882 words.
/s/ Levon G. Hovnatanian
Levon G. Hovnatanian
Dated: September 14, 2015
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
Response to Motion to Extend Time to File Motion for En Banc Reconsideration
has been forwarded by the method indicated below to the following person on this
14th day of September, 2015.
Mr. John Reed, Jr., pro se
715 S. 32nd Street
Temple, Texas 76504
(Appellant)
(via CM-RRR)
/s/ Levon G. Hovnatanian
Levon G. Hovnatanian
6
John Reed, Jr. v. Farmers Insurance Group
Combined Opinion