                                                                                              ACCEPTED
                                                                                            14-14-0838-cv
                                                                          FOURTEENTH COURT OF APPEALS
                                                                                       HOUSTON, TEXAS
                                                                                    11/4/2015 10:22:29 AM
                                                                                    CHRISTOPHER PRINE
                                                                                                   CLERK


                         No. 14-14-0838-CV
                                                                        FILED IN
       FINSERV CASUALTY CORP., CAPSTONE ASSOCIATED SERVICES    , LTDOF
                                                        14th COURT   ., APPEALS
                                                           HOUSTON, TEXAS
      LIQUIDATING MARKETING, LTD., RSL-3B-IL, LTD., & RSL-5B-IL, LTD.
                                                        11/4/2015 10:22:29 AM
                RSL FUNDING, LLC, AND RSL SPECIAL-IV, LTD.
                                                                  CHRISTOPHER A. PRINE
                                                                         Clerk
                                          V.

                  TRANSAMERICA LIFE INSURANCE COMPANY AND
                 TRANSAMERICA ANNUITY SERVICES CORPORATION


                   ON APPEAL FROM THE 165TH DISTRICT COURT
                IN HARRIS COUNTY, TEXAS, CAUSE NO. 2011-05238


    APPELLANTS’ OPPOSITION TO APPELLEES’ MOTION TO
    RECONSIDER ORDER ACCEPTING AMENDED BRIEF AND
REPLY IN SUPPORT OF MOTION TO POSTPONE SUBMISSION DATE


MAY IT PLEASE THE COURT:

      The Court should deny the motion to reconsider filed by Transamerica Life

Insurance Company and Transamerica Annuity Service Corporation (the

“Transamerica Parties”), which seeks to undo the order accepting the appellants’

amended brief. In their own brief, the Transamerica Parties asked the Court to

“dismiss this appeal for failing to provide record references,” Brief of Appellees at

62, thereby triggering Rule 44.3 and the holding from Inpetco. See TEX. R. APP. P.

44.3; Inpetco, Inc. v. Tex. Am. Bank, 729 S.W.2d 300, 300 (Tex. 1987) (per

curiam). A distinct set of rules set the boundaries of this Court’s discretion.
      Rather than single out an issue or two to argue for waiver, the Transamerica

Parties attacked the appeal in its entirety in advocating for “dismissal.” Brief of

Appellees at 61-62. The amended motion for leave to amend brief filed by FinServ

Casualty Corp., Capstone Associated Services, Ltd., Liquidating Marketing, Ltd.,

RSL-3B-IL, Ltd., RSL-5B-IL, Ltd., RSL Funding, LLC, and RSL Special-IV, Ltd.

(the “Appellants”) seized on this critical distinction in Texas case law in seeking

relief. See Elder v. Bro, 809 S.W.2d 799, 802 (Tex. App. – Houston [14th Dist]

1991, writ denied). The Court therefore applied the proper legal principles and

analysis in granting the Appellants leave to amend their brief. See id.

             THE SPECTER OF PREJUDICE PROVES TO BE ETHEREAL

A.    The Transamerica Parties Fail To Establish Any Prejudice

      The Transamerica Parties initially claim they had to “prepare their brief

without Appellants’ record citations.” Motion at 2. While true, the Appellants

warned the Transamerica Parties from the outset that this eventuality may occur.

See Original Brief of Appellants at 57 n.1. The Transamerica Parties filed their

brief anyway, without asking for an extension of time that dated from the point at

which the Appellants filed the amended brief with record cites.

      Nor do the Transamerica Parties explain how the absence of record cites

actually prejudiced their rights on appeal or affected the manner in which they

prepared their brief. As a practical matter, the Transamerica Parties must read the

                                          2
complete record anyway to draft their brief. The brief they filed, which contains

detailed facts, discloses that the Transamerica Parties did read the record and cited

to it extensively.

      If the Transamerica Parties disagreed with or contested any factual

statements made by the Appellants, Texas law offers several forms of protection.

First, the Transamerica Parties could submit their own statement of facts if they

were simply “dissatisfied” with the one presented by the Appellants. See TEX. R.

APP. P. 38.2(a)(1)(B). As their lengthy brief reveals, the Transamerica Parties did

just that, also restating the issues on appeal to their liking. Brief of Appellees at xi

n.1 (citing TEX. R. APP. P. 38.2(a)(1)(B)).

      Second, the Transamerica Parties could “contradict” any fact stated by the

brief of Appellants to preclude the Court from accepting that fact as true.         See

TEX. R. APP. P. 38.1(g). The brief of appellees relies on its own factual recitations.

In detailing the facts, the Transamerica Parties took advantage of protections that

inure to any appellee’s benefit. By looking after themselves and invoking the

applicable procedural rules, the Transamerica Parties suffered no prejudice.

      Third, the Transamerica Parties could have moved for an extension of time

to file their brief conditioned on the date whereby the Appellants added record

cites to theirs. See TEX. R. APP. P. 10.5(b). The Appellants would not have

opposed such relief. Or the Transamerica Parties could have sought leave to

                                           3
amend their brief after the Appellants filed the brief with the record cites. See TEX.

R. APP. P. 38.7. Yet the Transamerica Parties took no such action, sitting on their

rights instead.

      B.     The Facts In The Appellants’ Brief Remain Unchallenged

      By arguing they were unable to “check [the cites in the brief of Appellants]

for accuracy,” Motion at 3, the Transamerica Parties attempt to shift their burden

on appeal to the Appellants. Rule 38.2(a)(1)(B) excuses the Transamerica Parties

from including a statement of facts in their brief “unless the appellee is dissatisfied

with that portion of the appellants’ brief.” Despite “restating” the issues on appeal,

the Transamerica Parties never expressed their “dissatisfaction” with the statement

of facts provided by the Appellants’ original brief. See Brief of Appellees at xi

n.1. Nor have the Transamerica Parties expressed their “dissatisfaction” with the

facts or the record cites that appear in amended brief.

      C.     Record Citations Aid The Court And Not The Appellees

      The Appellants sought leave to amend their brief before the submission date,

giving the Court all of the appropriate record cites it will need to decide the case.

See TEX. R. APP. P. 38.1(g), (i). The Court will carry out its function as the

ultimate fact checker based on the record cites provided by the amended brief.

While no duty requires the Court “to make an independent search of the statement

of facts” to determine if harmful error exists, that benefit inures to the Court itself.

                                           4
Saldana v. Garcia, 285 S.W.2d 197, 201 (Tex. 1955). Such a protection does not

extend to the Transamerica Parties, which can find their own remedies in Rules

38.1(g), 38.2(a)(1)(B), 10.5(b), and elsewhere.

      The Supreme Court of Texas marks “the rendition of judgment” as the

operative time for amending the brief of appellant to add record cites the original

brief omits. See Saldana, 285 S.W.2d at 201. “The petitioner was timely apprised

of defects in his original brief, and was given an opportunity before the rendition of

the judgment to present a statement from the record supporting his right of

recovery on the theory advanced by his pleadings. Petitioner failed to take

advantage of this opportunity.” Id. (emphasis added). Unlike the petitioner in

Saldana, the Appellants did take advantage of their opportunity to rebrief before

the Court renders judgment.

     THE COURT PROPERLY GRANTED THE APPELLANTS LEAVE TO AMEND

      A.     The Inpetco Standard Applies To Allow Rebriefing

      In trying to distinguish Inpetco, the Transamerica Parties misapprehend the

case law on which they rely.       The Transamerica Parties asked the Court to

“dismiss” the entire appeal because the Appellants omitted record cites in the

opening brief. Brief of Appellees at 61-62. In a section heading, the Transamerica

Parties alternatively argued that the Appellants “waived” not some, but “all” of

their grounds for reversal by failing to cite to the record. Id. at 61. Under these

                                          5
circumstances, which unquestionably exist here, Rule 44.3 and Inpetco apply, not

the other cases cited by the Transamerica Parties.

      This Court’s own precedent verifies that Inpetco governs the Appellants’

right to amend where the Transamerica Parties sought an outright dismissal of the

appeal. In quoting from Elder, the Transamerica Parties skipped this critical part:

      An appeal may be disposed of partially on defects or irregularities in
      the appellate briefs. See Davis, 752 S.W.2d at 522; King, 762 S.W.2d
      at 299. Overruling some points of error due to procedural defects,
      while reaching others on the merits was held to be consistent with the
      Inpetco decision in Henry S. Miller Management v. Houston State,
      792 S.W.2d 128, 134 (Tex. App. – Houston [1st District] 1990, writ
      den). Such is not the same as affirming a judgment because of
      procedural defects in the appellant’s brief. A party may still obtain
      complete or partial relief on other points not waived by those
      procedural defects. Id.; see, e.g., Texaco, Inc. v. Pennzoil, Co., 729
      S.W.2d 768, 810, 815, 866 (Tex. App. – Houston [1st District] 1987,
      writ ref’d n.r.e.).

Elder, 809 S.W.2d at 802 (emphasis added).

      The court in Henry S. Miller Management Corp. articulated the acid test

used by this Court in Elder and other cases:

      The supreme court concluded that the court of appeals erred in
      affirming the judgment because of Inpetco’s briefing defects without
      first allowing it to rebrief. We note that rule 74 [now Rule 44.3]
      speaks of affirming judgments, which requires that all points of error
      be overruled, as happened in Inpetco. It does not speak of overruling
      some points of error due to procedural defects, while reaching others
      on the merits and affirming, reversing, or dismissing, as those other
      points require.

           This case differs from Inpetco. There, the summary judgment
      was affirmed due to briefing defects because every point of error
                                         6
       (albeit a single one) was deemed waived. Here, we have reviewed 10
       points of error on the merits. Thus, we have not affirmed the judgment
       because of briefing defects, but because appellant has not shown
       reversible error in any point of error, including the 10 points of error
       that we reviewed on the merits. Overruling some, but not all, points of
       error because of procedural defects is not the same as affirming a
       judgment due to procedural defects. The difference is that the
       appellant may still get complete or partial relief on other points not
       waived by procedural defects.

       We hold that rule 83 does not require a court to grant time to amend
       defective points of error, unless, as in Inpetco, all the points are
       defective and overruling them on that basis would constitute an
       affirmance for defects in appellate procedure. We think this
       interpretation is consistent with the following authorities: Davis v.
       City of San Antonio, 752 S.W.2d 518, 521–22 (Tex. 1988); Trenholm
       v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983); King v. Graham
       Holding Co., 762 S.W.2d 296, 298–99 (Tex. App. – Houston [14th
       Dist.] 1988, no writ); Arrechea v. Arrechea, 609 S.W.2d 852, 855
       (Tex. Civ. App. – Houston [14th Dist.] 1980, writ ref’d n.r.e.) (cited
       with approval in Trenholm ).

Henry S. Miller Mgmt. Corp., 792 S.W.2d at 134-35 (emphasis added).

       The original brief of Appellants contained no record cites to support any of

the issues or legal arguments raised by the Appellants. Because this procedural

defect would conceivably entitle the Court to affirm the trial court’s judgment en

toto on a waiver theory or to dismiss the entire appeal, Inpetco and Rule 44.3

apply. Indeed, the Transamerica Parties asked for that very relief in their brief,

triggering the legal principle fixed by Inpetco and Rule 44.3.            The Court

accordingly applied the correct legal standard in granting the Appellants leave to

rebrief.

                                          7
      B.     No Flagrant Rule Violation Occurred

      The Transamerica Parties erroneously suggest the Appellants conceded in

their amended motion for leave to add record cites that their opening brief

evidences a “flagrant violation of the briefing rules.” Motion at 3. The Appellants

admitted no such thing. Their opening brief disclosed the absence of record cites,

and that brief and the amended motion for leave gave a reasonable explanation for

same. Nor did the Appellants disobey an order to rebrief, but kept their promise to

add record citations when the Court received a complete clerk’s record.

      Using the subjunctive tense, the Appellants pointed out that even when the

Court concludes that a “flagrant violation” has occurred in the general sense, Rule

38.9 entitles any party to an appeal to correct such procedural defects by

rebriefing. See TEX. R. APP. P. 38.9. In any event, the Appellants corrected their

brief on their own by adding record citations without any need for the Court to

order rebriefing.

      The Transamerica Parties fail to contrast what real-life briefing deficiencies

qualify as “flagrant violations” of the briefing rules. See Motion at 3. Unlike this

case, Texas courts require far more that what happened here before a flagrant

violation will arise. Even then, the opportunity to rebrief or amend can cure the

flagrant violation. See In re M.R., No. 04-08-00624-CV, 2009 WL 1019041, at *1

(Tex. App. – San Antonio Apr. 15, 2009, no pet.) (allowing an amended brief after

                                         8
finding flagrant violations that resulted from the failure to: “1) identify the parties

and counsel; (2) include a table of contents; (3) include an index of authorities; (4)

include a brief statement of the issues presented; (5) include record references in

the statement of facts; (6) include a summary of the argument; (7) include a

conclusion stating the nature of the relief sought; or (8) include an appendix.”).

      This Court likewise requires an extreme example to qualify as a flagrant

violation. See Harkins v. Dever Nursing Home, 999 S.W.2d 571, 572-73 (Tex.

App. – Houston [14th Dist.] 1999, no pet.). In Harkins, the Court allowed the

appellants to amend after finding flagrant violations where the original brief “failed

to provide a clear and concise argument for the contentions made, with appropriate

citations to the record.” Id. at 572. The “amended brief, however, fail[ed] to cure

the defects found in their original brief.” Id.

      This Court could “discern [no] significant distinction between Appellants’

original brief and their amended brief” in Harkins. Unlike this case, the “statement

of facts . . . contains no facts of the case and no citations to the record,” “the body

of Appellants’ brief contains no argument section,” which means that the summary

of the argument could sum up nothing, and “Appellants’ brief contains not a single

citation to the record.” Id. at 572-73. In stark contrast to the original brief in this

appeal, only a “conclusion and prayer” followed the “summary of argument” in the

brief under review in Harkins. Id.

                                           9
   THE TRANSAMERICA PARTIES ACT TO PUSH BACK THE SUBMISSION DATE

      Knowing the submission date, which the Court set by letter dated August 28,

2015, the Transamerica Parties sought a second extension of time to file their brief.

On September 16, 2015, the Transamerica Parties filed their second motion for

extension, which the Court granted on September 24, 2015.            This two-week

extension made the brief of appellees due on October 9, 2015. This timing means

that the submission date of October 27, 2015 would come and go before the

deadline for filing the reply brief even arrived. See TEX. R. APP. P. 38.6(c),

39.8(b).

      The Appellants are asking the Court to move back the deadline for filing

their reply brief by 20 days, not by 30 days as stated by the Transamerica Parties.

See Motion at 1-2. October 29, 2015, marked the due date for the reply brief as

measured by the filing of the brief of appellees, so the new deadline would run on

November 18, 2015. The Court should re-set the submission date to November 26,

2015, or by 30 days, to accommodate this extension. To rearrange these deadlines

seems only fair after the Transamerica Parties obtained an extension that derailed

the conventional order for submitting an appeal for decision. This outcome would

promote this state’s public policy that calls for deciding appeals on the merits. See

Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.

2004).

                                         10
                      CONCLUSION AND PRAYER FOR RELIEF

      The Court should deny the motion to reconsider filed by the Transamerica

Parties, overrule their opposition to the Appellants’ motion to postpone the

submission date, and overrule their opposition to the Appellants’ motion to extend

time to file the reply brief. Thus, the Appellants pray the Court will grant them all

of the relief they are currently seeking.

                                                 Respectfully submitted,


                                                  /s/ E. John Gorman
                                                 E. John Gorman
                                                 State Bar No. 08217560
                                                 jgorman@feldlaw.com
                                                 THE FELDMAN LAW FIRM LLP
                                                 Two Post Oak Central
                                                 1980 Post Oak Blvd., Suite 1900
                                                 Houston, TX 77056-3877
                                                 (713) 850-0700
                                                 (713) 850-8530 (fax)


                                                 Michael Choyke
                                                 State Bar No. 00793504
                                                 WRIGHT & CLOSE, LLP
                                                 One Riverway, Suite 2200
                                                 Houston, Texas 77056
                                                 (713) 572-4321
                                                 (713) 572-4320 (fax)
                                                 choyke@wrightclose.com

                                                 COUNSEL FOR APPELLANTS



                                            11
                         CERTIFICATE OF SERVICE

      I certify delivering a true and correct copy of this response to the motion to
reconsider to all counsel of record on November 4, 2015, in compliance with Texas
Rule of Appellate Procedure 9.5:

      David L. Pybus
      PREIS, PLC
      24 Greenway Plaza, Suite 2050
      Houston, TX 77046


                                              /s/ E. John Gorman
                                              E. John Gorman




                                         12
