03-14-00485-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

JOHN REED, JR., 

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

State Bar No. 24012371

cain@mdjwlaw.com

Levon G. Hovnatanian

State Bar No. 10059825

hovnatanian@mdjwlaw.com

Christopher W. Martin

State Bar No. 13057620

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

ACCEPTED

03-14-00485-CV

6906619

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/14/2015 11:44:36 AM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/14/2015 11:44:36 AM JEFFREY D. KYLE Clerk
1

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 
2

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. 
3

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. 
4

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 nonaccelerated 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. 
5

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
6

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.

/s/ Levon G. Hovnatanian

Levon G. Hovnatanian

Mr. John Reed, Jr., pro se

715 S. 32nd Street

Temple, Texas 76504

(Appellant)

(via CM-RRR)