ACCEPTED 01-15-00440-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/23/2015 10:55:16 AM CHRISTOPHER PRINE CLERK
01-15-00440-CV _______________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE 10/23/2015 10:55:16 AM FIRST COURT OF APPEALS CHRISTOPHER A. PRINE Clerk _______________
IN RE ERNEST RAY KOONCE Relator. ______________
On Petition for Writ of Mandamus from the 127th Judicial District Court Harris County, Texas Cause Number 2010-64752 _____________
WELLS FARGO, AS TRUSTEE’S MOTION TO STRIKE RELATOR’S SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS _______________
BOBBIE L. STRATTON BRADLEY E. CHAMBERS VALERIE HENDERSON
Baker Donelson Bearman Caldwell & Berkowitz, P.C. 1301 McKinney Street, Suite 3700 Houston, Texas 77010 Telephone: (713) 650-9700 Facsimile: (713) 650-9701
ATTORNEYS FOR WELLS FARGO BANK, N.A., AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF APRIL 1, 2005, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-WHQ2 TO THE HONORABLE COURT OF APPEALS:
Wells Fargo Bank, N.A., as Trustee Under the Pooling and Servicing
Agreement Dated as of April 1, 2005, Asset Back Pass-Through Certificates,
Series 2005-WHQ2 (“Wells Fargo, as Trustee”) files this motion to strike Ernest
R. Koonce’s (“Koonce”) Supplemental Petition for Writ of Mandamus and
respectfully shows the Court as follows:
I. INTRODUCTION
Koonce filed a Petition for Writ of Mandamus on May 12, 2015, seeking
review of the trial court’s order granting Wells Fargo, as Trustee’s motion for new
trial. Wells Fargo, as Trustee filed its response to the petition for writ of
mandamus on July 13, 2015. On September 7, 2015, Koonce filed a Supplemental
Petition for Writ of Mandamus, without seeking leave to do so, which raises
numerous issues that Koonce never raised in the trial court, and, therefore, have
never been addressed by the trial court. Additionally, the “record” included with
Koonce’s Supplemental Petition for Writ of Mandamus contains numerous
documents that were not a part of the record in the trial court and were apparently
created by Koonce and a person with no connection to this case, Christine Reule,
for the sole purpose of supporting Koonce’s Supplemental Petition for Writ of
Mandamus.
2 The Court should strike Koonce’s Supplemental Petition for Writ of
Mandamus and all purported evidence attached thereto for the following reasons:
1. Koonce failed to seek leave to supplement his original petition for writ of mandamus.
2. Issues A-D are not appropriate for mandamus review because these issues have not been raised or addressed in the trial court.
3. Koonce has provided no explanation for why he allegedly needs to supplement his prior briefing on Issue E, which has already been fully briefed by the parties.
II. ARGUMENT & AUTHORITIES
A. Koonce failed to seek leave to supplement his original petition for writ of mandamus.
First, Koonce failed to seek leave to supplement his original petition for writ
of mandamus; therefore, the Court should strike Koonce’s supplement in its
entirety. “[N]ew or additional issues raised in a reply brief or post-submission
brief are untimely and will not be considered absent express permission from the
appellate court allowing the new or additional issues.” Black v. Shor, 443 S.W.3d
170, 174 (Tex. App.—Corpus Christi 2013, no pet.) (citing Collin Cnty. v. Hixon
Family P'ship, Ltd., 365 S.W.3d 860, 877 (Tex. App.—Dallas 2012, pet. denied);
Rogers v. City of Fort Worth, 89 S.W.3d 265, 284 (Tex. App.—Fort Worth 2002,
no pet.); Haynes v. McIntosh, 776 S.W.2d 784, 788 (Tex. App.—Corpus Christi
1989, writ denied)). Additionally, the Court may “not consider attachments to
briefs that were not part of the trial court record and are not formally included in
3 the appellate record.” Id. (citing Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex.
2001); In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.—Dallas
2012, no pet.); Paselk v. Rabun, 293 S.W.3d 600, 612 n. 12 (Tex. App.—
Texarkana 2009, pet. denied); WorldPeace v. Comm'n for Lawyer Discipline, 183
S.W.3d 451, 465 n. 23 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)).
Koonce failed to request leave to supplement his original petition for writ of
mandamus, and he failed to set forth any reason why he failed to raise these new
issues in his original petition for writ of mandamus that he filed months ago. The
new issues Koonce has raised in his supplemental petition for writ of mandamus
are untimely, and the Court has not given Koonce permission to file the
supplemental petition. Therefore, the Court should strike Koonce’s supplemental
petition for writ of mandamus and the “record” attached thereto in its entirety.
B. Issues A-D are not appropriate for mandamus review because these issues have not been raised or addressed in the trial court.
Second, issues A-D have not been raised or addressed by the trial court and
are, therefore, not appropriate for mandamus review. “To obtain mandamus relief,
relators must show both that the trial court has clearly abused its discretion and
that they have no adequate appellate remedy.” In re Greyhound Lines, Inc., No.
05-13-01646-CV, 2014 WL 1022329, at *3 (Tex. App.—Dallas Feb. 21, 2014, no
pet. h.) (citing In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.
4 proceeding)) (emphasis added). Koonce does not cite to anything in the record to
support Issues A-D found in his supplemental petition for mandamus relief. This
is likely for the simple reason that he never raised Issues A-D in any motion or
pleading before the trial court and, therefore, the issues have never been addressed
by the trial court. It is impossible for the trial court to have “clearly abused its
discretion” on these issues when it has not even had a chance to consider them.
Koonce also fails to demonstrate how the issues he raises in his
Supplemental Petition for Writ of Mandamus are purportedly related in any way to
the trial court’s order on Wells Fargo, as Trustee’s motion for new trial, which is
the order upon which Koonce’s original petition for writ of mandamus is based.
Further, the “record” attached to Koonce’s supplemental petition for
mandamus relief is nothing more than a conglomeration of documents that were
not part of the trial court’s record in this matter, and should not be considered by
the Court. It is “improper for parties to rely on matters outside the record in
making arguments to the court.” Carlton v. Trinity Universal Ins. Co., 32 S.W.3d
454 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing Melendez v.
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ACCEPTED 01-15-00440-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/23/2015 10:55:16 AM CHRISTOPHER PRINE CLERK
01-15-00440-CV _______________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE 10/23/2015 10:55:16 AM FIRST COURT OF APPEALS CHRISTOPHER A. PRINE Clerk _______________
IN RE ERNEST RAY KOONCE Relator. ______________
On Petition for Writ of Mandamus from the 127th Judicial District Court Harris County, Texas Cause Number 2010-64752 _____________
WELLS FARGO, AS TRUSTEE’S MOTION TO STRIKE RELATOR’S SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS _______________
BOBBIE L. STRATTON BRADLEY E. CHAMBERS VALERIE HENDERSON
Baker Donelson Bearman Caldwell & Berkowitz, P.C. 1301 McKinney Street, Suite 3700 Houston, Texas 77010 Telephone: (713) 650-9700 Facsimile: (713) 650-9701
ATTORNEYS FOR WELLS FARGO BANK, N.A., AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF APRIL 1, 2005, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-WHQ2 TO THE HONORABLE COURT OF APPEALS:
Wells Fargo Bank, N.A., as Trustee Under the Pooling and Servicing
Agreement Dated as of April 1, 2005, Asset Back Pass-Through Certificates,
Series 2005-WHQ2 (“Wells Fargo, as Trustee”) files this motion to strike Ernest
R. Koonce’s (“Koonce”) Supplemental Petition for Writ of Mandamus and
respectfully shows the Court as follows:
I. INTRODUCTION
Koonce filed a Petition for Writ of Mandamus on May 12, 2015, seeking
review of the trial court’s order granting Wells Fargo, as Trustee’s motion for new
trial. Wells Fargo, as Trustee filed its response to the petition for writ of
mandamus on July 13, 2015. On September 7, 2015, Koonce filed a Supplemental
Petition for Writ of Mandamus, without seeking leave to do so, which raises
numerous issues that Koonce never raised in the trial court, and, therefore, have
never been addressed by the trial court. Additionally, the “record” included with
Koonce’s Supplemental Petition for Writ of Mandamus contains numerous
documents that were not a part of the record in the trial court and were apparently
created by Koonce and a person with no connection to this case, Christine Reule,
for the sole purpose of supporting Koonce’s Supplemental Petition for Writ of
Mandamus.
2 The Court should strike Koonce’s Supplemental Petition for Writ of
Mandamus and all purported evidence attached thereto for the following reasons:
1. Koonce failed to seek leave to supplement his original petition for writ of mandamus.
2. Issues A-D are not appropriate for mandamus review because these issues have not been raised or addressed in the trial court.
3. Koonce has provided no explanation for why he allegedly needs to supplement his prior briefing on Issue E, which has already been fully briefed by the parties.
II. ARGUMENT & AUTHORITIES
A. Koonce failed to seek leave to supplement his original petition for writ of mandamus.
First, Koonce failed to seek leave to supplement his original petition for writ
of mandamus; therefore, the Court should strike Koonce’s supplement in its
entirety. “[N]ew or additional issues raised in a reply brief or post-submission
brief are untimely and will not be considered absent express permission from the
appellate court allowing the new or additional issues.” Black v. Shor, 443 S.W.3d
170, 174 (Tex. App.—Corpus Christi 2013, no pet.) (citing Collin Cnty. v. Hixon
Family P'ship, Ltd., 365 S.W.3d 860, 877 (Tex. App.—Dallas 2012, pet. denied);
Rogers v. City of Fort Worth, 89 S.W.3d 265, 284 (Tex. App.—Fort Worth 2002,
no pet.); Haynes v. McIntosh, 776 S.W.2d 784, 788 (Tex. App.—Corpus Christi
1989, writ denied)). Additionally, the Court may “not consider attachments to
briefs that were not part of the trial court record and are not formally included in
3 the appellate record.” Id. (citing Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex.
2001); In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.—Dallas
2012, no pet.); Paselk v. Rabun, 293 S.W.3d 600, 612 n. 12 (Tex. App.—
Texarkana 2009, pet. denied); WorldPeace v. Comm'n for Lawyer Discipline, 183
S.W.3d 451, 465 n. 23 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)).
Koonce failed to request leave to supplement his original petition for writ of
mandamus, and he failed to set forth any reason why he failed to raise these new
issues in his original petition for writ of mandamus that he filed months ago. The
new issues Koonce has raised in his supplemental petition for writ of mandamus
are untimely, and the Court has not given Koonce permission to file the
supplemental petition. Therefore, the Court should strike Koonce’s supplemental
petition for writ of mandamus and the “record” attached thereto in its entirety.
B. Issues A-D are not appropriate for mandamus review because these issues have not been raised or addressed in the trial court.
Second, issues A-D have not been raised or addressed by the trial court and
are, therefore, not appropriate for mandamus review. “To obtain mandamus relief,
relators must show both that the trial court has clearly abused its discretion and
that they have no adequate appellate remedy.” In re Greyhound Lines, Inc., No.
05-13-01646-CV, 2014 WL 1022329, at *3 (Tex. App.—Dallas Feb. 21, 2014, no
pet. h.) (citing In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.
4 proceeding)) (emphasis added). Koonce does not cite to anything in the record to
support Issues A-D found in his supplemental petition for mandamus relief. This
is likely for the simple reason that he never raised Issues A-D in any motion or
pleading before the trial court and, therefore, the issues have never been addressed
by the trial court. It is impossible for the trial court to have “clearly abused its
discretion” on these issues when it has not even had a chance to consider them.
Koonce also fails to demonstrate how the issues he raises in his
Supplemental Petition for Writ of Mandamus are purportedly related in any way to
the trial court’s order on Wells Fargo, as Trustee’s motion for new trial, which is
the order upon which Koonce’s original petition for writ of mandamus is based.
Further, the “record” attached to Koonce’s supplemental petition for
mandamus relief is nothing more than a conglomeration of documents that were
not part of the trial court’s record in this matter, and should not be considered by
the Court. It is “improper for parties to rely on matters outside the record in
making arguments to the court.” Carlton v. Trinity Universal Ins. Co., 32 S.W.3d
454 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing Melendez v.
Exxon Corp., 998 S.W.2d 266, 280 (Tex. App.—Houston [14th Dist.] 1999, no
pet.) (holding parties are to confine their arguments and factual recitations to
matters contained in the record)). For these reasons, Issues A-D are not
appropriate for mandamus review and the Court should strike Koonce’s
5 supplemental petition for mandamus review because the trial court has not
reviewed the issues raised therein.
C. Koonce has provided no explanation for why he allegedly needs to supplement his prior briefing on Issue E, which has already been fully briefed by the parties.
Finally, Koonce previously raised Issue E in his original petition, but in this
supplemental petition, he further supplements the issues, which is procedurally
inappropriate and not warranted when the issue was fully briefed by the parties. In
Issue E, Koonce asks whether Wells Fargo, as Trustee is “barred from asserting
that the note and deed of trust were not accelerated until September 2010.”
Koonce raised this issue in his original petition for writ of mandamus, and argued
that Wells Fargo, as Trustee accelerated the loan in 2006, and, therefore, Wells
Fargo, as Trustee’s counterclaim for judicial foreclosure was barred by the
applicable statute of limitations. As Wells Fargo, as Trustee argued in its response
to Koonce’s petition for writ of mandamus, Koonce’s argument that the loan at
issue was accelerated in 2006 was already specifically addressed in another lawsuit
between the parties, and is, therefore, barred by res judicata. Koonce once again
raises this issue that has already been decided in another case, and Koonce fails to
present any reason why he needs to supplement his briefing on this issue at this
time. For the reasons set forth in Wells Fargo, as Trustee’s response to Koonce’s
petition for writ of mandamus, Koonce’s argument on this issue is wholly without
6 merit, and there is absolutely no need for further briefing from Koonce on this
issue.
PRAYER For these reasons, Wells Fargo, as Trustee respectfully asks the Court to
strike Koonce’s Supplemental Petition for Writ of Mandamus in its entirety, and to
grant any other relief to which Wells Fargo, as Trustee may be justly entitled.1
Respectfully submitted,
/s/ Valerie Henderson BOBBIE L. STRATTON Texas State Bar No. 24051394 BRADLEY E. CHAMBERS Texas State Bar No. 24001860 VALERIE HENDERSON Texas State Bar No. 24078655 BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC 1301 McKinney, Suite 3700 Houston, Texas 77010 Telephone: (713) 650-9700 Facsimile: (713) 650-9701
ATTORNEYS FOR WELLS FARGO BANK, N.A., AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF APRIL 1, 2005, ASSET BACK PASS- THROUGH CERTIFICATES, SERIES 2005- WHQ2
1 Alternatively, if the Court denies Wells Fargo, as Trustee’s motion to strike, Wells Fargo, as Trustee respectfully requests leave to file a brief responding to the substantive issues raised in Koonce’s Supplemental Petition for Writ of Mandamus.
7 CERTIFICATE OF SERVICE I hereby certify that on the 23rd day of October, 2015, a true and correct copy of the foregoing was sent by electronic mail as allowed by Texas e-file, as follows:
Mr. Ernest Ray Koonce rayk469@gmail.com 15938 Fleetwood Oaks Drive Houston, Texas 77079
/s/ Valerie Henderson Valerie Henderson