Essex Insurance Company v. Rafael Zuniga

ACCEPTED
04-15-00587-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/18/2015 5:08:27 PM
KEITH HOTTLE
CLERK

04-15-00587-CV
No. _____

FILED IN
4th COURT OF APPEALS
In the Fourth District Court of Appeals SAN ANTONIO, TEXAS
San Antonio, Texas 09/18/2015 5:08:27 PM
KEITH E. HOTTLE
Clerk
ESSEX INSURANCE COMPANY,
Appellant,

RAFAEL ZUNIGA,
Appellee.

On Appeal from the 229th Judicial District Court
Duval County, Texas
Cause No. DC-13-112-A

UNOPPOSED MOTION FOR EXTENSION OF TIME
TO FILE NOTICE OF APPEAL

Appellant Essex Insurance Company, (“Essex”) respectfully files this

Unopposed Motion for Extension of Time to File Notice of Appeal. The current

deadline for filing the Notice of Appeal is September 5, 2015. Essex requests a 15-

day extension of time for a new deadline of September 20, 2015.

The reasons for this request are as follows:

1. This is an appeal from an Order Vacating Order Denying Rule 91a

Motions to Dismiss, Granting Rule 91a Motions to Dismiss, and Awarding Zero

Dollars in Attorneys’ Fees (“Final Order”) signed March 26, 2015, that was severed
into and made final by an Order Granting Defendant Essex Insurance Company’s

Motion to Sever (“Severance Order”) signed on August 6, 2015. The Final Order

was signed in a case styled Rafael Zuniga v. San Diego Tortilla & Essex Ins. Co.,

No. DC-13-112, in the 229th District Court of Duval County, Texas (“Original

Cause”) and severed into Cause No. DC-13-112-A (“Severed Cause”). Copies of

the Final Order and Severance Order, as well as the Notice of Appeal filed today in

the district court, are attached as Exhibits A-C.

2. The parties to this Severed Cause have settled their differences and are

in the process of executing final settlement documents. However, the deadline for

filing this motion was expiring, and in an abundance of caution and in order to avoid

losing the right to appeal from the decision of the district court, Essex files this

motion. If and when the final settlement agreement is fully executed and becomes

effective, resolving all matters between these parties, Essex will promptly dismiss

the appeal. But in the event that the settlement is not fully consummated, Essex will

fully prosecute the appeal.

3. Appellee Rafael Zuniga does not oppose this motion for extension.

4. The failure to appeal by September 5, 2015, was not deliberate or

intentional, but rather was based on a good-faith belief that the parties had fully

settled their differences and that the settlement documents would be executed in
sufficient time to avoid risking the appeal. This extension is not sought for the

purposes of delay. No prior extension has been granted for this deadline.

5. The facts contained in this motion are based on the official district court

records or within the personal knowledge of the undersigned and therefore, no

verification is necessary under Texas Rule of Appellate Procedure 10.2.

As set forth in the Certificate of Conference below, this motion for extension

of time is Unopposed.

For these reasons, Essex requests that the Unopposed Motion for Extension

of Time to File Notice of Appeal be extended 15 days to September 20, 2015.

Respectfully submitted,

/s/ Joseph A. Ziemianski
Joseph A. Ziemianski
State Bar No. 00797732
jziemianski@cozen.com
Bryan P. Vezey
State Bar No. 00788583
bvezey@cozen.com
COZEN O’CONNOR
One Houston Center
1221 McKinney, Suite 2900
Houston, Texas 77010
Telephone: (832) 214-3900
Facsimile: (832) 214-3905

ATTORNEYS FOR APPELLANT
ESSEX INSURANCE COMPANY
CERTIFICATE OF CONFERENCE
I certify that on September 18, 2015, I conferred with counsel for Appellee

Rafael Zuniga, and he stated that his client does not oppose the relief sought in this

motion for extension of time.

/s/ Bryan P. Vezey
Bryan P. Vezey
CERTIFICATE OF SERVICE
On September 18, 2015, I electronically filed this Unopposed Motion for

Extension of Time to File Notice of Appeal with the Clerk of the Court using the

eFile.TXCourts.gov electronic filing system, which will send notification of such

filing to the following (unless otherwise noted below).

Thomas J. Henry
State Bar No. 09484210
tjhenry@thomasjhenrylaw.com
Roger L. Turk
State Bar No. 00788561
rlturk@thomasjhenrylaw.com
LAW OFFICES OF THOMAS J. HENRY
521 Starr Street
Corpus Christi, Texas 78401
Telephone: (361) 985-0600
Facsimile: (361) 985-0601

ATTORNEYS FOR APPELLEE
RAFAEL ZUNIGA

/s/ Bryan P. Vezey
Bryan P. Vezey
EXHIBIT A
EXHIBIT B
EXHIBIT C
CAUSE NO. DC-13-112-A

RAFAEL ZUNIGA § IN THE DISTRICT COURT OF
§
V. § DUVAL COUNTY, TEXAS
§
ESSEX INSURANCE COMPANY § 229th JUDICIAL DISTRICT

NOTICE OF APPEAL

Essex Insurance Company, Defendant, in the above-referenced cause, gives this notice that

it is appealing the Order Vacating Order Denying Rule 91a Motions to Dismiss, Granting Rule

91a Motions to Dismiss, and Awarding Zero Dollars in Attorneys’ Fees signed March 26, 2015

(“Final Order”), that was severed into and made final by an Order Granting Defendant Essex

Insurance Company’s Motion to Sever signed on August 6, 2015, and all prior and

contemporaneous rulings that are merged into the Final Order. The appeal is taken to the Fourth

Court of Appeals at San Antonio, Texas.

Respectfully submitted,

ATTORNEYS FOR DEFENDANT
ESSEX INSURANCE COMPANY
CERTIFICATE OF SERVICE
The undersigned certifies that, on September 18, 2015, Defendant’s Notice of Appeal was

electronically filed with the Clerk of Court using the electronic filing system of the Court, and a

true and correct copy of the foregoing was additionally served as follows:

ATTORNEYS FOR PLAINTIFF
RAFAEL ZUNIGA

/s/ Bryan P. Vezey
Bryan P. Vezey