                                                                                               ACCEPTED
                                                                                          04-14-00655-CV
                                                                               FOURTH COURT OF APPEALS
                                                                                    SAN ANTONIO, TEXAS
                                                                                      1/9/2015 1:09:38 PM
                                                                                            KEITH HOTTLE
                                                                                                   CLERK

                                   04-14-00655-CV
                          VICTOR and IVARENE HOSEK
                                                                           FILED IN
                                                                    4th COURT OF APPEALS
                                       Appellant                     SAN ANTONIO, TEXAS
                                                                    01/9/2015 1:09:38 PM
                                           V.
                                                                      KEITH E. HOTTLE
                                                                            Clerk
                                   ROSALE SCOTT
                                       Appellees


             ON APPEAL TO THE FOURTH COURT OF APPEALS
                 FROM THE 81st JUDICIAL DISTRICT COURT
                           TRIAL CASE NO. 2011-53723


   RESPONSE TO APPELLEE ON THE MOTION FOR EXTENSION OF
                                         TIME
                         TO FILE APPELLANTS’ BRIEF


TO THE HONORABLE COURT OF APPEALS:
      Counsel truly is swamped with work due to unpredictable delays in getting

reporters’ records in various cases filed, so this will be brief:

   1. Counsel was not at fault in delaying the production of a record and it is

      improper that Appellee suggest that she prepare the brief without the record.

      She did not have the trial attorneys’ file and counsel for appellee will have the

      benefit of the record;
2. Appellee has no justification for suggesting that Appellant go without

   important procedural steps such as a motion for new trial to preserve error on

   attorneys’ fees or, again, begin researching or writing her brief without aid of

   the record to know what the issues are;

3. Whether Ms. Scott is currently receiving royalties is irrelevant: Counsel is

   working on a contingent fee basis, so money is not preventing her from getting

   zealous representation, and the supersedeas deposit was calculated to handle

   any delay in her getting payments during this period. The Hoseks are only

   receiving payment that are not at issue in this court case – repeat: NOT AT

   ISSUE IN THIS CASE;

4. A huge block of time after receipt of the record was taken up because Appellee

   chose to challenge a properly-set supersedeas first at the trial court level and

   then at this appellate court level. Because net worth and substantial harm

   exceptions were being argued by the Hoseks, counsel had to work with her

   clients, “hands on”, to put together receipts for every expense the Hoseks have

   paid during the last year – checks, receipts, stamped copies, day-by-day logs

   and more, for three hundred and sixty-five days – and work with them on

   getting proof for immediately needed repairs, including getting proof that the

   repair was needed and getting detailed estimates of the repair’s cost. Work

   on earlier-filed cases and work on this case was brought to a grinding halt for
   literally weeks. All just to keep the benefit of a properly set supersedeas. If

   counsel were not so adamantly opposed to filing motions for sanctions except

   in the most grievous cases, Appellants would have filed a motion for sanctions

   for filing of a frivolous pleading. There was no basis for challenging a

   properly-set supersedeas.

5. Once Appellants won this challenge, counsel had to go back, first to the older

   appeals she was working on, which would have been complete or almost

   complete, had not the Hoseks faced this unnecessary challenge. She could

   not, thanks to the challenge, even resume her work on this case, due to the

   persistent presence of the older appeals. Again, counsel had not “loaded

   herself down” with too many appeals to make more money. The existence of

   this many appeals on her docket is due to the fact that every single appeal she

   has taken in the last year has had unprecedented delays in the record being

   filed – delays that were not counsel’s fault but which led to a “pile up”. It is

   not appropriate for Appellee’s counsel to suggest that this counsel ask for

   ninety-day extensions on the older appeals, simply to get this appeal done

   within thirty days.

6. Counsel does not believe that she could get this brief done in thirty days even

   if all older appeals were thrown to the wayside. The research that needs to be

   done in this case does not involve a few speedy LEXIS searches. Counsel has
       already done those. Research in poorly-indexed, multi-volume treatises is

       required. The exact wording of a deed is relevant to this case. Appellants are

       entitled to have adequate time spent on their case. And this is the first request

       Appellants have made for an extension of the time for filing this brief.

    7. Finally, the vitriolic and personal attack1 with which counsel for Appellees

       has pursued this case – even making an issue of whether attorneys’ fees are

       included in a supersedeas when the Supreme Court had just decided that issue

       – has slowed the progress of this case down. Counsel for Appellants has

       managed to respond with decorum, but has had to construct arguments to

       counter the unnecessary ones as well as the appropriate ones. Pure animosity

       on one side of the bar should not decide whether the Hoseks get a fair hearing

       with the counsel of their choice2 handling the case.

                            CONCLUSION & PRAYER

       The reason for this extension is not for delay but so that justice may be done.

Even an extension of thirty days would be inadequate because that would leave less


1
  For example, allowing their argument to suggest that counsel was responsible for
the late record, when nothing could be further from the truth.
2
  While I am not board certified, I was not a random choice. My work at Amoco
Production Company prior to my law career included land title work, and I spent
many years in an “oil and gas family”, in which I ran drillsite title. I received a
high grade in Advanced Oil and Gas law in law school and I have worked as an
appellate attorney for approximately twenty-two years. My work has included
winning multi-million-dollar oil and gas cases. If Appellee suggests that I should
“dump” this case, or any of my other cases, it would be an improper suggestion.
than one week each for completion of fairly complex appeals. Counsel did not

engage in poor planning, rather, the filing of the records took unpredictably long in

several cases which counsel anticipated to have long ago finished. Appellants ask

this Court for an extension of sixty-days of the deadline to file their brief, until March

9, 2015.

      WHEREFORE, PREMISES CONSIDERED, APPELLANTS ask this Court

to extend the deadline for filing their Brief sixty days until March 9, 2015, and for

such other and further relief as may be just.

                                                Respectfully submitted,

                                                _____/s/ MB CHIMENE_________

                                                THE CHIMENE LAW FIRM
                                                Michele Barber Chimene
                                                TBN 04207500
                                                15203 Newfield Bridge Ln.
                                                Sugar Land, TX. 77498
                                                PH: (713) 474-5538; no fax
                                                michelec@airmail.net

                         CERTIFICATE OF CONFERENCE

      Appellants’ counsel has contacted Raquel Perez, counsel for Appellee, who
consulted with lead counsel Wade Caldwell and she replied that they would oppose
any extension longer than a week.

                                                ______/s/ MB CHIMENE________
                         CERTIFICATE OF SERVICE

      A true and correct copy of this Motion for Extension has been served on
counsel for Appellees, Wade Caldwell and Raquel Perez, One Riverwalk Place, Ste.
1825, 700 North St. Mary’s, San Antonio, Texas 78205 on January 9, 2015 by ECF
and email.
                                           ______/s/ MB CHIMENE_________
