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 M ARTIN , D ISIERE , J EFFERSON & W ISDOM , 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 M ARTIN , D ISIERE , J EFFERSON & W ISDOM , L.L.P

. 16000 N. Dallas Parkway, Suite 800 Dallas, T exas 75248 (214) 420

- 5500 —T elephone (214) 420

- 5501 —F acsimile ACCEPTED 03-14-00485-CV 6906619 THIRD COURT OF APPEALS

AUSTIN, TEXAS 9/14/2015 11:44:36 AM JEFFREY D. KYLE

CLERK1 TO THE HONORABLE COURT OF APPEALS : Comes no w the appell ee , Farmers Insurance Group, and responds to Mr.
Reed’s M otion to E xtend T ime to F ile M otion for E n B anc R econsideration

. 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, 201 5.
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

re consideration was Thursd ay, August 20, 2015. See T EX
. R. A PP
. 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 ord er, 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, t he deadline to file a
motion for extension of time to file a motion for e n banc reconsideration was Friday , September 4 , 2015. See T EX
. R. A PP
. P. 49.8 (“ A court of appeals may2 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 day s 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.
E ven 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

— h e “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.
“E n banc consideration is generally disfavored[.]” Wal

- Mart Stores, Inc. v. Miller , 102 S.W.3d 706, 708 n.1 (Tex. 2003); accord T EX
. R. A PP
. 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.” T EX
. R. A PP
. P. 41.2(c). Here, en banc review is not needed to “secure or maintain uniformity of the court’s decisions.” Th ere is not hing in the C ourt ’s routine opinion dismissing the appeal for want of prosecution that conflicts with one of its previous opinions.3 Nor could th is case meet the standard of “extraordinary circumstances

. ” Cf. Kansas City S. Ry. Co. v. Oney , 380 S.W.3d 795, 814 (Tex. App.

— Houston [14 th Dist.] 2012, no pet.) (Frost, J., concurring in denial of en banc review) (even where “the presented issues are im portant 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) (McC ally, 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’ p reservation 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 arg ument” did not constitute an “extraordinary circumstance”). E xtraordinary circumstances simply do not exist here.4 T he granting of Mr. Reed’s motion could not lead to the grant of reconsideration en banc. For this reason alone, e ven if the motion ha d 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 T EX
. R. A PP
. P. 3 8.6(a) (setting deadline for appellant’s brief in non

accelerated appeal as 30 days from da te complete record was filed); T EX
. R. A PP
. 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 rea sonable 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 mo tion. For these reasons, Farmers Insurance Group asks the Court to deny the motion.5 Respectfully submitted,
M ARTIN , D ISIERE , J EFFERSON & W ISDOM , 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 (7 13) 632

- 1700

– Telephone (713) 222

- 0101

– Facsimile
M ARTIN , D ISIERE , J EFFERSON & W ISDOM , 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

– Te lep hone (214) 420

- 5501

– Facsimile
ATTORNEYS FOR APPELLEE FARMERS INSURANCE GROUP6 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 88 2 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 h as been forwarded by the method indicated below to the following person on this 14 th day of September , 2015.

/s/ Levon G. Hovnatanian Levon G. Hovnat anian Mr. John Reed, Jr., pro se 715 S. 32nd Street Temple, Texas 7650 4 ( Appellant ) (via CM

- RRR)