                                                                                             ACCEPTED
                                                                                         01-14-00133-CV
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                     6/5/2015 3:11:05 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                  CLERK


                             No. 01-14-00133-CV
                                                                       FILED IN
                                                                1st COURT OF APPEALS
                                  In the                            HOUSTON, TEXAS
                                                                6/5/2015 3:11:05 PM
                              Court of Appeals                  CHRISTOPHER A. PRINE
                                                                        Clerk
                      for the First District of Texas

               UNITED SERVICES AUTOMOBILE ASSOCIATION,

                                                    Appellant/Cross-Appellee,
                                         v.

                   JOSEPH HAYES, JR. AND JOANNE HAYES,

                                                    Appellees/Cross-Appellants.


                RESPONSE TO USAA’S MOTIONS FOR LEAVE
               TO FILE SUPPLEMENTAL BRIEF AS APPELLANT
                    AND TO EXCEED THE WORD LIMITS

TO THE HONORABLE COURT OF APPEALS:

          USAA’s motions for leave to file a supplemental brief and to exceed the

word limits should be denied. By way of its supplemental brief—filed months

after all the briefing has closed and more than 30 days after the cause has been

submitted—USAA seeks to raise several entirely new issues that could have been,

and should have been, raised in its opening brief. See TEX. R. APP. P. 38.1(f) (“The

[opening] brief must state concisely all issues or points presented for review.”).

USAA offers no explanation for its failure to have raised these issues in its opening



46634_1
brief. Nor does USAA attempt to show why “justice requires” that it be allowed to

raise new issues at this late date. See TEX. R. APP. P. 38.7 (providing that a brief

may be supplemented “whenever justice requires, on whatever reasonable terms

the court may prescribe”). Justice does not require the Court to abandon well-

established error-preservation and appellate-briefing requirements at this late stage

of the appellate process. In these circumstances, the Court should deny State

Farm’s request to supplement its briefing with new issues, new arguments, and

new authorities.

          As USAA acknowledges, when Mr. and Mrs. Hayes filed their appellees’

brief, Mr. and Mrs. Hayes pointed out USAA’s failure to have challenged the

jury’s findings (1) that USAA violated the Texas Insurance Code, and (2) that

$20,000 would fairly and reasonably compensate Mr. and Mrs. Hayes for their

damages that were caused by USAA’s violations of the Insurance Code. See

Hayes Br. as Appellees at 14-15. The Hayeses’ brief was filed on December 19,

2014.

          USAA was aware of the Hayeses’ argument and responded to it in a footnote

in its reply brief filed on January 29, 2015. See USAA Reply Br. at 2 n.1. But

USAA did not brief the new issues, arguments, and authorities it now wants to

raise. Id. And USAA did not request leave to supplement or amend its appellant’s

brief to add these new issues, arguments or authorities. Id.



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          This Court has repeatedly held that “the rules of appellate procedure do not

allow an appellant to include in a reply brief a new issue in response to some

matter pointed out in the appellee’s brief but not raised in the appellant’s opening

brief.” Miner Dederick Const., L.L.P v. Gulf Chem. & Metallurgical Corp., 403

S.W.3d 451, 463 n.3 (Tex. App—Houston [1st Dist.] 2013), pet denied, 455

S.W.3d 164 (Tex. 2015). “An appellant is required to present all issues to be

considered on appeal in appellant’s brief.” Brockman v. Tyson, 01-03-01335-CV,

2005 WL 2850128, at *3 n.2 (Tex. App—Houston [1st Dist.] Oct. 27, 2005, pet.

denied). Furthermore, “[a] failure to provide substantive analysis of an issue or

cite appropriate authority waives the complaint.” Wise v. Conklin, No. 01-13-

00840-CV, 2015 WL 1778612, at *4 (Tex. App—Houston [1st Dist.] April 16,

2015, no pet.); accord Anderson v. Houston Community College Sys., No. 01-14-

00062-CV, 2015 WL 174233, at *10 (Tex. App—Houston [1st Dist.] Jan. 13,

2015, no pet.) (same).

          More than eight months have passed since USAA filed its opening brief as

appellant, and more than four months have passed since USAA filed its reply brief.

The case was argued and submitted more than a month ago. Yet only on Monday,

June 1, 2015 did USAA contact counsel for Mr. and Mrs. Hayes regarding a

request to amend or supplement its appellant’s brief, and only on Monday, June 1,

2015 did USAA file a motion for leave to supplement its eight-month-old brief as

appellant.



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          USAA’s motion for leave does not explain why USAA did not include the

new arguments and authorities in its opening brief; USAA’s motion does not

explain USAA’s delay in seeking to amend its brief; and USAA’s motion does not

explain why its new arguments and authorities must be addressed in the interest of

justice. It is not in the interest of justice for the Court to overlook well-and-long-

established error preservation rules and briefing requirements. See Wilson v. State,

01-11-01125-CR, 2015 WL 1501812, at *9-10 (Tex. App.—Houston [1st Dist.]

March 31, 2015, pet. filed) (concluding that justice did not require the Court to

overlook briefing requirements to address constitutional arguments that were not

included in the appellant’s initial brief); Green v. State, 01-00-00188-CV, 2002

WL 24363, at *3 (Tex. App—Houston [1st Dist.] Jan. 10, 2002, pet ref’d)

(declining to address argument included in amended brief filed three months after

the deadline for original brief had expired “because appellant has not explained

why it was not included in the original brief or why it must be addressed in the

interest of justice”).

          Furthermore, USAA’s assertion that its new arguments are “extremely

basic” is disingenuous and inaccurate. See USAA Motion for Leave at 2-3 and

compare USAA Texas Lloyd’s Co. v. Menchaca, No. 13-13-00046-CV, 2014 WL

3804602 (Tex. App.—Corpus Christi July 31, 2014, pet. filed). USAA and its

lawyers have dedicated many, many pages of briefing to the argument that a



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plaintiff’s failure to obtain a breach of contract finding precludes the plaintiff’s

recovery of policy-benefit damages. Id. USAA lost that argument in Menchaca

(in an opinion it does not disclose), but USAA certainly understands what it takes

to brief the argument. And that is only one of several new arguments and issues

that USAA seeks to add to the case after it has been submitted.

          For all of the reasons Mr. and Mrs. Hayes have argued in their brief of

appellees, the Court should reject USAA’s challenges to the jury’s finding that

USAA failed to comply with the insurance policy. By affirming the trial court’s

judgment for Mr. and Mrs. Hayes based on the jury’s breach of contract findings,

the Court can avoid any need to address USAA’s failure to brief any argument

challenging Mr. and Mrs. Hayes’ recovery under the Insurance Code. See, e.g.,

United Nat. Ins. Co. v. AMJ Investments, LLC, 447 S.W.3d 1, 11 (Tex. App.—

Houston [14th Dist.] 2014, pet. dism’d) (“If a property insurer fails to pay the full

amount of the claim as a result of an unfair claim-settlement practice under the

Insurance Code, the insured may elect to recover its damages under either a

breach-of-contract or a statutory-violation theory.”).




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          This case began in the court of appeals in February 2014. USAA filed its

brief of appellant on September 26, 2014 and its reply brief on January 29, 2015,

and the case was argued and submitted on April 29, 2015. The Court should not

reopen the briefing after submission and allow USAA to add new issues,

arguments, and authorities at this late stage of the proceedings.

                                      PRAYER
          Appellees, Joseph Hayes, Jr. and Joanne Hayes, ask the Court to deny

USAA’s motions for leave to file a supplemental brief as appellant and to exceed

the word limits. Appellees also pray for any other relief to which they may be

entitled.

                                  Respectfully Submitted:

     THE MOSTYN LAW FIRM                        HOGAN & HOGAN

     René M. Sigman                             By: /s/ Jennifer Bruch Hogan
     State Bar No. 24037492                         Jennifer Bruch Hogan
     rmsigman@mostynlaw.com                         State Bar No. 03239100
     3810 West Alabama Street                       jhogan@hoganfirm.com
     Houston, Texas 77027                       Richard P. Hogan, Jr.
     713.861.6616–telephone                     State Bar No. 09802010
     713.861.8084–facsimile                     rhogan@hoganfirm.com
                                                James C. Marrow
     CASHIOLA & BEAN                            State Bar No. 24013103
                                                jmarrow@hoganfirm.com
     Randal Cashiola                            Pennzoil Place
     State Bar No. 03966802                     711 Louisiana, Suite 500
     rcashiola@cashiolabeanlaw.com              Houston, Texas 77002
     2090 Broadway Street, Suite A              713.222.8800–telephone
     Beaumont, Texas 77701-1944                 713.222.8810–facsimile
     409.813.1443–telephone


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     409.813.1467–facsimile

                              ATTORNEYS FOR APPELLEES




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                          CERTIFICATE OF SERVICE


       I certify that a true and correct copy of the above and foregoing was
forwarded to all counsel of record by the Electronic Filing Service Provider, if
registered; a true and correct copy of this document was forwarded to all counsel
of record not registered with an Electronic Filing Service Provider and to all other
parties as follows:


          Kevin G. Cain
          Levon G. Hovnatanian
          Christopher W. Martin
          MARTIN, DISIERE, JEFFERSON
          & WISDOM, L.L.P.
          808 Travis, 20th Floor
          Houston, Texas 77002
          Via TexFile

                                                   /s/ Jennifer Bruch Hogan
                                                   Jennifer Bruch Hogan
                                                   Dated: June 5, 2015




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