Nos. 03-14-00515-CV and 03-14-00518-CV

_________________________________________________________________

IN THE COURT OF APPEALS 

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

__________________________________________________________________

SALVATORE MARGARACI AND ESTATE PROTECTION PLANNING 

CORPORATION, Appellants

v.

EDUARDO S. ESPINOSA, IN HIS CAPACITY AS RECEIVER OF 

RETIREMENT VALUE, LLC, Appellee

_______________________________________________________________

And

JAMES POE AND SENIOR RETIREMENT PLANNERS, LLC, 

Appellants

v.

EDUARDO S. ESPINOSA, IN HIS CAPACITY AS RECEIVER OF 

RETIREMENT VALUE, LLC, Appellee

________________________________________________________________

Appeal from the 200th District Court

Travis County, Texas

Honorable Judge Gisela Triana

______________________________________________________________

MOTION TO CONSOLIDATE APPEALS

__________________________________________________________________

John W. Thomas

State Bar No.

George Brothers Kincaid & Horton, LLP

114 W. 7th Street, Suite 1100

Austin, Texas 78701-3015

Telephone: (512) 495-1400

Facsimile: (512) 499-0094

jthomas@gbkh.com

ATTORNEYS FOR APPELLEE 

EDUARDO S. ESPINOSA, in his capacity 

as Receiver of Retirement Value, LLC

ACCEPTED

03-14-00515-CV

6096427

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/16/2015 1:05:15 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/16/2015 1:05:15 PM JEFFREY D. KYLE Clerk
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APPELLEE’S MOTION TO CONSOLIDATE APPEALS

COMES NOW, Appellee, Eduardo S. Espinosa, in his capacity as receiver 

of Retirement Value, LLC, and files this Motion to Consolidate Appeals, and in 

support thereof would show the following:

1. There are no rules addressing when two or more appeals may be 

consolidated. Consolidation at the appellate level is thus at the Court’s discretion.

2. Appeals may be consolidated when they are from the same judgment, 

successive orders in the same case, or from identical judgments. Lerma v. Forbes, 

144 S.W.3d 18, 20 (Tex. App. – El Paso 2004, no pet.) (same judgment and 

rulings); Fitzgerald v. Dr. Pepper Co., 48 S.W.2d 479, 480 (Tex. Civ. App. –

Dallas 1932, no writ) (same judgment); Montgomery v. City of Alamo Heights, 8 

S.W.2d 258, 262 (Tex. Civ. App. – San Antonio, writ dism’d w.o.j.) (successive 

orders in same case); Norwood v. Farmers & Merchants Nat’l Bank of Abilene, 

145 S.W.2d 1100, 1100 (Tex. Civ. App. – Eastland 1940, writ ref’d) (identical 

judgments). Appeals also may be consolidated when it would be expedient that the 

matters in controversy should be adjudicated in one appeal. See, Dallas Cowboys 

Football Club, Inc. v. Harris, 348 S.W.2d 37, 41 (Tex. Civ. App. – Dallas 1961, no 

writ).

3. The above-captioned appeals should be consolidated. They arise from 

the same trial court case, and in particular, from the same partial summary 
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judgment and trial on the remaining issues. The case in the trial court was a piece 

of complex litigation against many defendants, including Appellants, arising from 

defendants’ participation in a securities fraud scheme. The trial court entered a 

partial summary judgment against both Appellants in the above-captioned appeals

(and some of the other defendants), finding that they had violated the Texas 

Uniform Fraudulent Transfer Act. See Appendix 1 to Poe’s Appellants’ Brief; 

Appendix 2 to Margaraci’s Appellants’ Brief. Separate final judgments were 

entered against Poe and Margaraci, after the cases were tried together on the issues 

not resolved by the partial summary judgment order. The difference in the final 

judgments is in the amount of damages each of the Appellants owes, which 

represents the commissions each received from the scheme. See Appendix 2 to 

Poe’s Appellants’ Brief; Appendix 3 to Margaraci’s Appellants’ Brief.

4. The Margaraci Appellants acknowledge that the Poe appeal is a 

related case, involving the same issues as in this case. See Margaraci’s Appellants’

Brief, at 7. Specifically, the Margaraci Appellants state:

Currently pending in the Third Court of Appeals is cause number 03-

14-00518 which was originally part of this case in the trial court. The 

cases were severed after the trial court made the substantive rulings 

that are challenged in both appeals. The sole issue raised in this case 

regarding the propriety of not allowing settlement credits is also raised 

in the related appeal. This Court’s ruling in that regard would be 

dispositive of both appeals if the Court agrees with the appellants’ 

arguments. The related appeal raises two additional fact-bound issues 

that are not raised in this case.
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Margaraci’s Appellants’ Brief, at 7. 

5. There is no doubt that the cases are related and stem from the same 

trial court rulings. Lerma v. Forbes, 144 S.W.3d 18, 20 (Tex. App. – El Paso 

2004, no pet.). Both cases involve the same facts, with the sole exception being 

the amount of commissions each Appellant received. They both raise the same 

point on appeal, namely whether they are entitled to a settlement credit because of 

the Receiver’s settlement with the James Defendants.1

 Thus, the legal issues are 

the same as well. It would certainly be more expedient for the matters in 

controversy to be adjudicated in a single appeal. There is no reason for two panels 

of this court to learn this case, understand the factual and legal issues, have two 

separate oral arguments, and write two opinions when all of the issues are exactly 

the same.

THEREFORE, Appellee, Eduardo S. Espinosa, as Receiver of Retirement 

Value, LLC, asks that the Court consolidate the above-captioned appeals. 

Alternatively, Appellee asks that the court order the cases be briefed and heard 

together. Appellee further requests all other relief to which he may be entitled. 

Respectfully submitted,

 1 Poe raised two additional points.
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GEORGE BROTHERS KINCAID & HORTON

LLP

/s/ John W. Thomas

John W. Thomas

State Bar No. 19856425

114 W. 7th Street, Suite 1100

Austin, Texas 78701-3015

Telephone: (512) 495-1400

Facsimile: (512) 499-0094

jthomas@gbkh.com

ATTORNEYS FOR APPELLEE

EDUARDO S. ESPINOSA, in his capacity 

as Receiver of Retirement Value, LLC

CERTIFICATE OF CONFERENCE

Counsel for Appellee conferred with counsel for Appellants on July 15, 

2015, and they are opposed to this motion.

/s/ John W. Thomas
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CERTIFICATE OF SERVICE

This is to certify that on this the 16th day of July, 2015, the foregoing motion

was filed electronically with the Clerk for the Third Court of Appeals. A copy was 

served by electronic mail upon the following:

Scott Lindsey

Aldrich PLLC

1130 Fort Worth Club Tower

777 Taylor Street

Fort Worth, Texas 76102

slindsey@aldrichpllc.com

Timothy A. Hootman

2402 Pease Street

Houston, Texas 77003

Thootman2000@yahoo.com

/s/ John W. Thomas

John W. Thomas