in the Matter of the Estate of Hugh Bob Spiller

• Court: Court of Appeals of Texas
• Decided: September 1, 2015
• Docket: 04-15-00449-CV
• Status: Published

Opinion

ACCEPTED 04-15-00449-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/1/2015 8:12:43 AM KEITH HOTTLE CLERK

NO. 04-15-00449-CV

FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS FOURTH JUDICIAL DISTRICT OF TEXAS 09/1/2015 8:12:43 AM AT SAN ANTONIO KEITH E. HOTTLE Clerk

IN THE MATTER OF THE ESTATE OF HUGH BOB SPILLER, DECEASED

On Appeal from the County Court of Menard County, Texas Under Cause No. 2013-02059 The Honorable Joe H. Loving, Presiding

REAGAN WILLMAN’S RESPONSE TO MOTION TO DISMISS

Respectfully submitted by:

W. Calloway Huffaker, Attorney at Law, PLLC By: /s Deborah S. McClure Deborah S. McClure Texas Bar No. 18562635 P.O. Box 15125 Amarillo, TX 79105 Tel: (806) 463-5595 | Fax: (806) 998-5328 Email: deborahm@huffaker-law.com W. Calloway Huffaker Texas Bar No. 10187800 P.O. Box 968-1540 Avenue J Tahoka, TX 79373 Tel: (806) 998-4863 | Fax: (806) 998-5328 Email: arlener@huffaker-law.com TO THE HONORABLE FOURTH COURT OF APPEALS:

Appellant, Reagan Willman (“Willman”) files this response to

Appellee Mary Lee Spiller’s Motion to Dismiss, and respectfully shows the

Court:

1. The central issue on appeal is grounded on the propriety of the

agreements made on the record which were disputed by Willman, and never

reduced to writing signed by Willman. The statement relied upon by

Appellee in moving for dismissal is an integral part of the agreements made

the basis of the appeal. Those agreements were made by Jonathan Cluck,

Willman’s then trial counsel, and were expressly repudiated.

2. The relationship of an attorney to his client is one of agency,

and, as such, is clothed with authority to adopt the procedure and method of

transacting his client’s suit and to act for him in the prosecution or defense

of his legal rights. He has no power to compromise his client’s suit, in the

absence of authority to do so. McMillan v. McMillan, 72 S.W.2d 611, 612

(Tex.Civ.App.-Dallas 1934, no writ).

3. The waiver of the right to appeal was an integral part of the

other agreements entered on the record, and does not stand alone. Those

agreements were entered into by Jonathan Cluck, but were disputed by

Willman in written pleadings (CR 1:789) and through his testimony on May 6, 2015. (RR May 6, 2015 Pre Trial Hearing 2:15-16). These matters are

apparent on the record, and will be fully briefed in Appellant’s Brief.

4. When, as here, the evidence reveals that the attorney did not

have his client’s authority, the agreement will not be enforced. Cleere v.

Blaylock, 605 S.W.2d 294, 296 (Tex.Civ.App.--Dallas 1980, no writ).

5. Appellee has failed in establishing a basis for dismissal of the appeal

without the opportunity to brief the issues. Accord, Payne v. Campbell, 259

S.W.693, 694 (Tex.Civ.App. —Austin 1924, no writ).

6. The Motion to Dismiss has no basis in law or in fact. The motion was

presented to needlessly increase the costs of litigation and delay the

proceedings. Willman has had to incur additional fees and costs to respond

to the Motion to Dismiss, and appellate counsel has had to detract from

preparation of Appellant’s Brief in order to address the motion properly.

7. Willman respectfully requests that the time to file Appellant’s Brief be

abated pending ruling by the Court on the Motion to Dismiss, and that he be

afforded additional time in which to prepare and file Appellant’s Brief.

For all the foregoing reasons, Appellant Reagan Willman respectfully

prays that this Court will abate the proceedings pending the determination of

Appellee Mary Lee Spiller’s Motion to Dismiss, and upon review of the motion, overrule the Motion to Dismiss, and provide all further relief to

which Appellant shows himself entitled.

W. Calloway Huffaker, Attorney at Law, PLLC By: /s Deborah S. McClure Deborah S. McClure Texas Bar No. 18562635 P.O. Box 15125 Amarillo, TX 79105 Tel: (806) 463-5595 | Fax: (806) 998-5328 Email: deborahm@huffaker-law.com W. Calloway Huffaker Texas Bar No. 10187800 P.O. Box 968-1540 Avenue J Tahoka, TX 79373 Tel: (806) 998-4863 | Fax: (806) 998-5328 Email: arlener@huffaker-law.com

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Appellant’s Response to Motion to Dismiss was served on the identified parties by electronic filing on September 1, 2015.

Tom Roberson P.O. Box 25 Menard, Texas 76859 robersonlaw@hotmail.com

Chris Wallendorf 722 Front Street, Suite 101 Comfort, Texas 78013 chrisw7@hctc.net Richard C. Mosty C. Dixon Mosty 222 Sidney Baker, Suite 400 Kerrville, Texas 78028 rmosty@mostylaw.com cdmosty@mostylaw.com

Mark Marshall marshall-law@verizon.net