Rufina Reyes Yanez v. American General Life Insurance Company

ACCEPTED 04-15-00548-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/23/2015 5:20:26 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 11/23/2015 5:20:26 PM KEITH E. HOTTLE SAN ANTONIO, TEXAS Clerk RUFINA REYES YANEZ, Appellant v. AMERICAN GENERAL LIFE INSURANCE COMPANY, Appellee MOTION FOR THE COURT TO TAKE MANDATORY JUDICIAL NOTICE TO THE HONORABLE COURT OF APPEALS: Comes Now Appellant, RUFINA REYES YANEZ, asking the Honorable Court of Appeals to take judicial notice of a document filed by Appellant, included herein and entitled Motion For Extension of Time To File Appellant's Brief, which establishes that Appellant's appeal should not have been dismissed for want of prosecution. 1. RUFINA REYES YANEZ is appealing the summary judgment rendered against her and in favor of AMERICAN GENERAL LIFE INSURANCE COMPANY on July 21, 2015. Page 11 2. On October 28, 2015, the Court of Appeals entered an order dismissing the appeal for want of prosecution. Appellant filed a motion to reinstate the appeal. The Court of Appeals had previously accepted Appellant's Notice of Appeal provided Appellant paid the filing fee. Appellant has not met those conditions. Verburgt v Domer, 959 S.W. 2d 615,616-617 (Tex. 1997). 3. As to the findings that Appellant failed to prosecute her appeal RUFINA REYES YANEZ enters a plea of non est factum. Rule 201 of the Texas Rules of Evidence makes is mandatory that the Court of Appeals take judicial notice of its own records and of the attached Exhibit A. 4. On September 3, 2015, Appellant filed her notice of Appeal. On September 18, 2015, the District Clerk filed an incomplete Clerk's Record that did not comply with Rule 34.5(a) of the Texas Rules of Appellate Procedure. The Court of Appeals accepted the record without directing of Appeals accepted the record without directing the District Clerk to comply with Rule 34.5(a). See Rule 34.5(d) of the Rules of Appellate Procedure. The Clerk's Record did not include a copy of the Court Docket Sheet, the motion for mandatory judicial notice filed on July 10, 2015, the Advisory to the Court, and other relevant documents. Attached as Exhibit B is a copy of the letter to the District Clerk asking for a Supplementary Clerk's Record. Page 12 5. In Exhibit A, attached Appellant made it lucidly clear that she was asking for an extension of time to file Appellant's Brief and for leave to file her notice of appeal. Rule 201 of the Texas Rules of Evidence compels the Court of Appeals to take notice of the adjudication facts contained in Exhibit A. 6. PRAYER. Premises considered, Appellant RUFINA REYES YANEZ asks the Honorable Court of Appeals to take mandatory judicial notice of Exhibit A and to reinstate her appeal. Respectfully submitted, ; A Attorney At Law State Bar No. 20211100 1519 Washington St, Suite # 1. Laredo, Texas 78040 Telephone No. (956) 726-1638 Email: armandotrevinolaw@hotmail.com Attorney For Appellant Subscribed and sworn to before me on the 23 rd day of November, 2015, by Armando Trevifio, Attorney for Appellant. Noylry PiIblic, State of Texas Page 13 CERTIFICATE OF SERVICE I certify that on November 23, 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, jason.richardson@emhllp.com, Webb County District Clerk's office Esther Degollado. A ANDO TREVINO Page 14 EXHIBIT A FOURTH COURT Of APPEll SAN ANTONIO, T~)( 9/3120153:22:12 KEITHHOn CLE 04-1 ~-00548-CV CAUSE NO. _ _ _ _ _ _ _ _ __ IN THE COURT OF APPEALS FOURTH COURT ! OF APPEALS DISTRICT SAN ANTONIO, TEXAS RUFINA REYES YANEZ, Appellant VS. AMERICAN GENERAL ~IF.E ,INSURANCE COMPANY, Appellee Trial Court No. 2014CVFOOO504-D3 S 341 1' DISTRICT COURT OF WEBB COUNTY, TEXAS MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF TO THE HONORABLE COURT OF APPEALS: 1. Appellant RUFINA REYES YANEZ files this motion for extension of time of 15 days to file her notice of Appeal regarding the final summary judgment that was entered on July 20,2015. The Notice of Appeal is included with this request for Extension. 2. The right to appeal is a valuable right and the Supreme Court has made it clear that such a right should not be denied if good cause exists for extending the time to appeal. See Verburgt v. Dorner, 959 S.W. 2nd 615, 616-17 (Tex. 1997). 1 A.T. RUFINA ~"'ANEZ. MonON FOR LEAVE TO FI~E MOTION FOA EX~NSION OFTlMHO FIL~APPELlANrs BRIEf 3. Good cause exists for granting of the extension. During the past several months AppeUanfs counsel had been involved in Cause No. 15-01-13356- ZCV, David Rodriguez, et al vs. Rose Rock Midstream Field Services, L.L,C., et al filed in the 293 rd District Court of Zavala County, Texas, a four vehicle collision that resulted in six deaths and injuries to other persons. The case has involved and will continue to involve multiple depositions, extensive requests for discovery, and examination of the vehicles. ' 4. PRAYER. PreD;lises Considered, Appellant asks the Court to grant this motion. submitted, NDOTRE State Bar No. 20211100 1519 Washington St., Suite One Laredo, Texas 78040 Tel (956) 726-1638 Email: annandotrevino!aw(rugmaiLcolll '"" Attorney for Appellant I' 1 ,. , 1M Subscribed and sworn to by Armando Trevifio on the 3' day of September~ 2015. 2 I'..T. RUFINA AYAI'II