Alexander R. Davis and Rebecca R. Davis v. Texas Mutual Insurance Company

Full text

FILED 15-0019 2/23/2015 12:49:51 PM tex-4246714 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK

NO. 15-0019 ______________________________________

IN THE SUPREME COURT OF TEXAS ______________________________________

ALEXANDER R. DAVIS AND REBECCA R. DAVIS, Petitioners, v.

TEXAS MUTUAL INSURANCE COMPANY, Respondent. ________________________________________________

On Appeal from the Fifth District Court of Appeals, Dallas, Texas Appeal No. 05-12-01715-CV Trial Court No. DC-11-06356, Dallas County, Texas ___________________________________

APPELLANTS’ SECOND UNOPPOSED MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW ___________________________________

TO THE HONORABLE SUPREME COURT OF TEXAS:

Petitioners, Alexander R. Davis and Rebecca R. Davis, file this Second Unopposed Motion to Extend Time to File Petition for Review under TEX. R. APP. P. 10.1, 10.5(b), and 53.7(f). In support of this Motion, Petitioners show the following:

1. The Court of Appeals for the Fifth District in Dallas (“Court of Appeals”) rendered its opinion and judgment in Alexander R. Davis and Rebecca

______________________________________________________________________________ PETITIONERS’ SECOND UNOPPOSED MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW-PAGE 1

R. Davis v. Texas Mutual Insurance Company, No. 05-12-01715-CV, on July 28, 2014.

2. On August 7, 2014, Petitioners timely filed their Motion for Extension of Time to File Motion for Rehearing, which was granted on August 8, 2014, extending the due date for the filing of their Motion for Rehearing to September 11, 2014. Petitioners filed their Motion for Rehearing on September 11, 2014. On September 29, 2014, the Court of Appeals denied Petitioners’ Motion for Rehearing.

3. On October 7, 2014, the Petitioners timely filed their Motion for

Extension of Time to File Motion for Rehearing En Banc, which was granted on October 9, 2014, extending the due date for the filing of their Motion for Extension of Time to File Motion for Rehearing En Banc to November 13, 2014. Petitioners filed their Motion for Rehearing En Banc on November 13, 2014. On December 8, 2014, the Court of Appeals denied Petitioners’ Motion for Rehearing En Banc.

4. The Petition for Review was originally due no later than January 22, 2015.

5. On January 12, 2015, Petitioners timely requested an extension of

time to February 23, 2015, which was granted by the Court to extend the deadline to February 23, 2015.

______________________________________________________________________________ PETITIONERS’ SECOND UNOPPOSED MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW-PAGE 2

6. Petitioners are requesting an additional thirty (30) day extension to March 25, 2015. This is Petitioners’ second request for an extension of time in this case before the Supreme Court of Texas.

7. Petitioners rely on the following facts as a reasonable explanation for the requested extension of time:

a. Petitioner’s co-counsel, Brad McClellan, is assisting on this

petition for review. Mr. McClellan is of counsel to a very small law firm has

had an extremely heavy workload with prior deadlines and hearings

scheduled along with family and children’s activities. Among other matters,

Petitioner’s co-counsel filed an appellate brief with the 1st Court of Appeals

in Case No. 01-14-00508-CV on February 13, 2014. Counsel has a

response to a petition for review due on March 11, 2015 in Case No. 15-

0062 before this Court. Counsel also has a brief due on March 16, 2015, in

the 4th Court of Appeals in Case No. 04-14-00685-CV.

b. Further, this case involves a significant workers’ compensation

matter affecting all business travelers, and it could be impacted by this

Court’s granting of the petition in Seabright Ins. Co. v. Lopez, 427 SW3d

442 (Tex. App.--San Antonio Jan. 29, 2014, pet. granted February 20, 2015,

with oral argument set for March 26, 2015), and more time is sought to also

carefully address the impact of the Seabright v. Lopez case.

______________________________________________________________________________ PETITIONERS’ SECOND UNOPPOSED MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW-PAGE 3

c. Additionally Petitioners’ counsel Christopher M. Albert and his

paralegal are iced in today due to bad weather conditions due to an ice storm

and are filing this request for an extension of time from home.

7. The undersigned has conferred with opposing counsel, Matthew B.

Baumgartner, who indicated there was no opposition to this request.

Therefore, Petitioners pray that this Court grant this Motion to Extend Time.

Respectfully Submitted,

/s/ Christopher M. Albert Alan L. Busch Texas Bar No. 03491600 busch@buschllp.com Christopher M. Albert Texas Bar No. 24008550 albert@buschllp.com

BUSCH RUOTOLO & SIMPSON, LLP 100 Crescent Court, Suite 250 Dallas, Texas 75201 Phone: 214-855-2880 Fax: 214-855-2871

- and -

______________________________________________________________________________ PETITIONERS’ SECOND UNOPPOSED MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW-PAGE 4

/s/ Brad McClellan Bradley Dean McClellan Of Counsel, Law Offices of Richard Pena, P.C. State Bar No. 13395980 1701 Directors Blvd., Suite 110 Austin, Texas 78744 brad.mcclellan@yahoo.com (512) 327-6884 telephone (512) 327-8354 facsimile

Attorneys for Alexander R. Davis and Rebecca R. Davis, Petitioners

CERTIFICATE OF CONFERENCE

As required by TEX. R. APP. P. 10.1(a)(5), I certify that I have conferred with Matthew Baumgartner, counsel for Respondent by e-mails on February 23, 2015, who indicated that he is unopposed to this Motion.

/s/ Christopher M. Albert Christopher M. Albert

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Petitioners’ Second Unopposed Motion to Extend Time to File Petition for Review was served through counsel of record by the method indicated below on February 23, 2015:

P.M. Schenkkan (512) 536-9913 – facsimile Matthew B. Baumgartner GRAVES, DOUGHERTY, HEARON & MOODY, P.C. 401 Congress Avenue, Suite 2200 Austin, Texas 78701

______________________________________________________________________________ PETITIONERS’ SECOND UNOPPOSED MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW-PAGE 5

Mary Barrow Nichols (512) 224-3215 – facsimile Shannon Simmons Pounds Texas Mutual Insurance Company 5210 E. Hwy. 290 Austin, Texas 78723

David P. Boyce (512) 476 -5382 - facsimile WRIGHT & GREENHILL, P.C. 221 West 6th Street, Suite 1800 Austin, Texas 78701

Attorneys for Respondent Texas Mutual Insurance Company

/s/ Christopher M. Albert Christopher M. Albert

______________________________________________________________________________ PETITIONERS’ SECOND UNOPPOSED MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW-PAGE 6