                                                                                                     ACCEPTED
                                                                                                 03-14-00485-CV
                                                                                                         6906619
                                                                                      THIRD COURT OF APPEALS
September 14, 2015                                                                               AUSTIN, TEXAS
                                                                                           9/14/2015 11:44:36 AM
                                                                                               JEFFREY D. KYLE
                                                                                                          CLERK
                                         03-14-00485-CV

                             IN THE THIRD COURT OF APPEALS                    RECEIVED IN
                                                                        3rd COURT OF APPEALS
                                     AUSTIN, TEXAS                           AUSTIN, TEXAS
                                                                        9/14/2015 11:44:36 AM
                                                                            JEFFREY D. KYLE
                                       JOHN REED, JR.,                           Clerk
                                                                         Appellant
                                                 v.
                              FARMERS INSURANCE GROUP,
                                                                           Appellee

                              On Appeal from Cause No. 259,941-C
                     In the 169th Judicial District Court of Bell County, Texas

           APPELLEE FARMERS INSURANCE GROUP’S RESPONSE
      TO APPELLANT’S MOTION TO EXTEND TIME TO FILE MOTION FOR
                     EN BANC RECONSIDERATION


            Kevin G. Cain           Levon G. Hovnatanian      Christopher W. Martin
       State Bar No. 24012371      State Bar No. 10059825     State Bar No. 13057620
         cain@mdjwlaw.com       hovnatanian@mdjwlaw.com       martin@mdjwlaw.com
                         MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
                                     808 Travis, 20th Floor
                                     Houston, Texas 77002
                                 (713) 632-1700—Telephone
                                  (713) 222-0101—Facsimile
                                          Michael Watson
                                      State Bar No. 24008246
                                      watson@mdjwlaw.com
                           MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
                               16000 N. Dallas Parkway, Suite 800
                                        Dallas, Texas 75248
                                   (214) 420-5500—Telephone
                                    (214) 420-5501—Facsimile
TO THE HONORABLE COURT OF APPEALS:

      Comes now the appellee, Farmers Insurance Group, and responds to Mr.

Reed’s Motion to Extend Time to File Motion for En Banc Reconsideration. As

discussed below, the Court should deny the motion.

I.    THE MOTION IS UNTIMELY.

      Mr. Reed states that “the deadline to file this particular motion was Sept. 5,

2015 but since that day was on a Saturday and Monday was a holiday, appellant is

entering his motion into the U S Mail on Tuesday Sept. 8, 2015.” Motion at 1.

The Court received the motion on September 10, 2015.

      But the deadline to file a motion to extend time to file a motion for en banc

reconsideration was not September 5.          The Court issued its judgment on

Wednesday, August 5, 2015. Thus, the deadline to file a motion for en banc

reconsideration was Thursday, August 20, 2015. See TEX. R. APP. P. 49.7 (“A

party may file a motion for en banc reconsideration as a separate motion, with or

without filing a motion for rehearing. The motion must be filed within 15 days

after the court of appeals’ judgment or order, or when permitted, within 15 days

after the court of appeals’ denial of the party’s last timely filed motion for

rehearing or en banc reconsideration. . . .”). Correspondingly, the deadline to file a

motion for extension of time to file a motion for en banc reconsideration was

Friday, September 4, 2015. See TEX. R. APP. P. 49.8 (“A court of appeals may

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extend the time for filing a motion for rehearing or en banc reconsideration if a

party files a motion complying with Rule 10.5(b) no later than 15 days after the

last date for filing the motion.”).

      Mr. Reed’s motion to extend time was not timely. For this reason alone, the

Court should deny the motion.

II.   EVEN IF THE MOTION HAD BEEN TIMELY, EN BANC
      RECONSIDERATION COULD NOT BE WARRANTED.

      Even if the motion to extend time had been timely, the Court should deny it

because the granting of it could not lead to the grant of reconsideration en banc.

The Court dismissed Mr. Reed’s appeal for want of prosecution—he “provided no

explanation of his ongoing failure to file a brief, let alone filed one.” Opinion at 2.

That ruling could not be a proper basis for reconsideration en banc.

      “En banc consideration is generally disfavored[.]” Wal-Mart Stores, Inc. v.

Miller, 102 S.W.3d 706, 708 n.1 (Tex. 2003); accord TEX. R. APP. P. 41.2(c). En

banc review “should not be ordered unless necessary to secure or maintain

uniformity of the court’s decisions or unless extraordinary circumstances require

en banc consideration.” TEX. R. APP. P. 41.2(c).

      Here, en banc review is not needed to “secure or maintain uniformity of the

court’s decisions.” There is nothing in the Court’s routine opinion dismissing the

appeal for want of prosecution that conflicts with one of its previous opinions.


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      Nor could this case meet the standard of “extraordinary circumstances.” Cf.

Kansas City S. Ry. Co. v. Oney, 380 S.W.3d 795, 814 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (Frost, J., concurring in denial of en banc review) (even where

“the presented issues are important to the jurisprudence,” the “prerequisites for en

banc consideration [were] not . . . satisfied” and “the high threshold for en banc

consideration [was] not . . . met”); Temple v. State, 342 S.W.3d 572, 630 (Tex.

App.—Houston [14th Dist.] 2010) (McCally, J., dissenting from denial of en banc

review) (en banc review denied even where issue was “[a]ppellant’s entitlement to

a full and constitutionally protected review of the evidence in this murder case”),

aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013); S.E.A. Leasing, Inc. v. Steele, 264

S.W.3d 71, 72 (Tex. App.—Houston [1st Dist.] 2007) (Keyes, J., dissenting from

denial of en banc review) (en banc review denied even where “[t]he panel opinion .

. . add[ed] new and unprecedented hurdles to appellants’ preservation of legal

sufficiency points of error”); Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (Jennings, J., concurring in denial of en banc

review) (panel’s holding regarding the State’s “uniquely egregious argument” did

not constitute an “extraordinary circumstance”).       Extraordinary circumstances

simply do not exist here.




                                         3
       The granting of Mr. Reed’s motion could not lead to the grant of

reconsideration en banc. For this reason alone, even if the motion had been timely,

the Court should deny it.

III.   CONCLUSION

       The original deadline for Mr. Reed to file his brief was Monday, December

1, 2014. See TEX. R. APP. P. 38.6(a) (setting deadline for appellant’s brief in non-

accelerated appeal as 30 days from date complete record was filed); TEX. R. APP. P.

4.1(a) (method of computing time). After four extensions and a warning from the

Court that his brief was overdue and that the appeal could be dismissed for want of

prosecution if he did not respond with a reasonable explanation, the Court

dismissed the appeal over eight months after the original brief deadline. After all

the latitude the Court has graciously provided him, Mr. Reed is not due any more

time for anything, let alone on the basis of an untimely motion.

       For these reasons, Farmers Insurance Group asks the Court to deny the

motion.




                                         4
Respectfully submitted,

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.


By: /s/ Levon G. Hovnatanian
    Levon G. Hovnatanian
     State Bar No. 10059825
    hovnatanian@mdjwlaw.com
    Kevin G. Cain
    State Bar No. 24012371
    cain@mdjwlaw.com
    Christopher W. Martin
    State Bar No. 13057620
    martin@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.


By: /s/ Michael Watson
    Michael Watson
     State Bar No. 24008246
    watson@mdjwlaw.com
16000 N. Dallas Parkway, Suite 800
Dallas, TX 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile

ATTORNEYS FOR APPELLEE
FARMERS INSURANCE GROUP




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                     CERTIFICATE OF COMPLIANCE

      This is to certify that this computer-generated Response to Motion to Extend
Time to File Motion for En Banc Reconsideration contains 882 words.


                                    /s/ Levon G. Hovnatanian
                                    Levon G. Hovnatanian
                                    Dated: September 14, 2015


                        CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing
Response to Motion to Extend Time to File Motion for En Banc Reconsideration
has been forwarded by the method indicated below to the following person on this
14th day of September, 2015.

                            Mr. John Reed, Jr., pro se
                               715 S. 32nd Street
                             Temple, Texas 76504
                                   (Appellant)
                                 (via CM-RRR)


                                    /s/ Levon G. Hovnatanian
                                    Levon G. Hovnatanian




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