                                                                                 ACCEPTED
                                                                             03-14-00515-CV
                                                                                     6096427
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        7/16/2015 1:05:15 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
               Nos. 03-14-00515-CV and 03-14-00518-CV
_________________________________________________________________
                    IN THE COURT OF APPEALS                 FILED IN
                                                     3rd COURT OF APPEALS
               FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
                           AUSTIN, TEXAS             7/16/2015 1:05:15 PM
__________________________________________________________________
                                                       JEFFREY D. KYLE
 SALVATORE MARGARACI AND ESTATE PROTECTION PLANNING          Clerk
                     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
              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

                                         - 2-
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.


                                        - 3-
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.


                                             - 4-
                                   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




                                    - 5-
                         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




                                        - 6-
