Salvatore Magaraci and Estate Protection Planning Corporation v. Eduardo S. Espinosa in His Capacity as Receiver of Retirement Value, LLC ( 2015 )

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
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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.
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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.
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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
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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
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