ACCEPTED 13-14-00584-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 2/14/2015 10:27:37 PM DORIAN RAMIREZ CLERK
No. 13-14-00584-CV
FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 2/17/2015 8:00:00 AM DORIAN E. RAMIREZ In The Clerk
Thirteenth Court of Appeals
JOHNNY PARTAIN,
Appellant
v.
ESTATE OF JAMES HAROLD MAPLES
Appellee
From County Court at Law No. 5
Hidalgo County, Texas
Apellee’s Brief
Oral argument requested if necessary William McCarthy, Attorney at Law 124 S. 12th Street Edinburg, Texas 78539 P: 956-383-5654 F: 956-382-0001 No. 13-14-00584-CV
In The Thirteenth Court of Appeals
TO THE HONORABLE JUSTICES OF THIS COURT:
COMES NOW William McCarthy Appellee in the above styled and
numbered cause and files his Appellee’s Brief, and respectfully shows unto
the Court the following. Defendant will be referred to as Appellee. Partain
will be referred to as Appellant. Reference to the clerk’s record will be
CR(page). References to the Reporter’s record will be RR(page).
ii IDENTITY OF PARTIES AND COUNSEL
Appellant:
A. JOHNNY PARTAIN, 7020 N. 16th Street, McAllen, Texas 78504; phone
956-240-1821; partain@atlastechnologies.biz.
Appellee:
B. The Estate of James Harold Maples, through William John McCarthy
attorney for the estate off James Harold Maples, 124 S. 12th Street,
Edinburg, Texas 78539; mccarthy.625@gmail.com.
iii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ............................................................................. iii INDEX OF AUTHORITIES ......................................................................................................... v STATEMENT OF THE CASE ..................................................................................................... 1 ISSUES PRESENTED .................................................................................................................. 2 SUMMARY OF ARGUMENT ..................................................................................................... 6 ARGUMENTS ............................................................................................................................... 7 CONCLUSION ............................................................................................................................ 16
iv INDEX OF AUTHORITIES
1. Bellore SA v. Import Warehouse, 448 F2d 317, (5th Circuit) ............ 15
2. Breceda v. Wii, 224 3d 237, (App8 2005) .......................................... 8
3. Chenault v. Phillips, 914 SW2d 140, 141 (TX 1996) ........................... 7
4. Constitution Article 5 § 19 ................................................................ 7
5. Craven v. Daugin Travers Company 770 SW2d 573 (Houston 14th Dist.
1989) writ denied. .......................................................................... 15
6. Ex Parte Tucci, 859 SW2d 1, 2, n. 4 (TX 1993) .................................. 7
7. Gerjets v. Davila 116 SW3d 864 (Corpus Christi, 2003) ................... 15
8. Government Code § 27.03 (a)(2)....................................................... 7
9. Gilliam v. Baker, 195 SW2d 824 (Houston, 1946) ref nre .................. 8
10. Hennigan v. Hennigan, 677 SW2d 495, 496 (TX 1984) ...............13, 17
11. Henke v. Peoples State Bank, 6 SW3d 717, 720 (Corpus Christi 1999,
pet. dismissed) .................................................................................. 7
12. In re TX Nat. Res – Conserve, Comm’n., 85 SW3d, 201, 205 (TX.
2002). ............................................................................................... 7
13. Kassim v. Carlisle Interests (App 5 2010) 308 SW3d 537 .................. 8
14. Loville v. Loville, 944 SW2d 818, 819 (Beaumont - 1997) writ
denied.” ............................................................................................ 9 v 15. Republic Ins. v. Millar 525 SW2d 780 (Houston 14th Dist. 1992) ..... 15
16. Rusk v. Rusk 5 SW3d 299 (Houston 14th Dist. 1999) ....................... 14
17. Tanner v. McCarthy 274 SW3d 311 (Houston 1st Dist. 2008). ........ 14
18. Texas Civil Practices and Remedies Code § 31.002......................... 14
19.TRCP 680 ........................................................................................... 7
vi STATEMENT OF THE CASE
Appellant is appealing from the dissolution of a Temporary Restraining
Order following a hearing in County Court at Law No. 5.
1 ISSUES PRESENTED
1. Denial of a Temporary Restraining Order is not appealable.
2. Neither County, District, Appellate Courts nor the Supreme Court has
jurisdiction to rule on a final judgment by a Justice Court in the absence
of a timely appeal.
3. County Court No. 5 did not abuse its authority in denying injunctive
relief. The exercise of its judgment is an integral part of the judicial
process and not an abuse of discretion.
4. Texas Property Code § 24 is intrinsically constitutional. Statutes, acts
and codes passed and adopted by the legislature are enacted under the
authority of and pursuant to the constitution.
5. Turnover Order No. 5 was eradicated by a Federal Court judgment which
became final.
2 STATEMENT OF FACTS
FACT, Mr. Partain broke into and occupied a condo from which he
was evicted and which judgment became final. He illegally leased the
premises to Dora Martinez. See Appendix 1 and 2.
FACT, an FED action was filed and Mrs. Martinez, having twice failed
to appear was evicted. Mr. Partain attempted to represent Mrs. Martinez,
but not being a licensed attorney was not allowed to practice law without a
license. That judgment became final and was not timely appealed. See
Appendix 3.
FACT, Mr. Partain then filed a Motion for TRO with County Court at
Law No. 5 which was argued and subsequently dissolved. See Appendix 4.
FACT, Mr. Partain then attempted to get another TRO from County
Court at Law No. 7 to bar any enforcement action, which was denied. Mr.
Partain then filed an Emergency Motion with the Court of Appeals, which
was dismissed. See Appendix 5.
FACT, A Writ of Possession was issued and executed in October,
2014.
3 FACT, Mr. Partain then sought in an ex parte action relief from
County Court at Law No. 8 after his motion was denied by County Court at
Law No. 7. Partain asked for incarceration and disbarment of adverse
Counsel, which County Court of Law No. 8 did not act upon. In addition, Mr.
Partain filed a grievance with the State Bar. The State Bar denied his action.
FACT, Mr. Partain is not an attorney; has never gone to law school; is
not licensed to practice, has no legal training and is a frustrated, wannabe
lawyer.
FACT, layman Partain never filed a Petition for a Turnover Order
pursuant to the statute and never invoked the assistance of the Court or
had a receiver appointed. He drafted his own order and subsequently
obtained Turnover Order No. 5 after the jurisdiction of the issuing court,
County Court of Law 1, had expired. During this time, Mr. Partain resorted
to self-help broke into premises, seized assets, cash, checks, mail, records
and other property.
FACT, Mr. Partain’s Turnover Orders were eviscerated in a Federal
Court Adversary Proceeding which he did not appeal and which, became a
final judgment. See Appendix 6. Mr. Partain clings to his Turnover Order
4 No. 5, like a rabbit’s foot because he has no concept of final judgments and
the full faith and credit effect accorded to them.
FACT, Mr. Partain has been through over 17 legal proceedings since
Counsel’s involvement with this case. Mr. Partain resents anyone
responding to his complaints and has steadfastly refused to appear in court
proceedings that required him to account for assets illegally seized.
FACT, Mr. Partain’s frustrations are reflected in his suits against:
Four Federal District Court judges
Two Justices of the Peace
The Mayor of McAllen
The Mayor of Edinburg
Deputies who served writs
The Sheriff of Edinburg
The Police Chief of McAllen
Four District and County Courts
The Hidalgo County District Attorney
and multiple Appellate actions arising from his endless attempts to
relitigate adversely decided issues. 5 SUMMARY OF ARGUMENT
1. Denial of a Temporary Restraining Order is not appealable.
2. County Court at Law No. 5 and the Court of Appeals are without
jurisdiction to pass on an FED judgment, which has become final.
3. The dissolution after hearing of a TRO by the issuing court cannot
constitute an abuse of discretion.
4. Texas Property Code Provision, § 24 cannot be unconstitutional. The
Code provision was enacted pursuant to constitutional authority.
5. The Turnover Order was eradicated by a Federal Court.
6 ARGUMENTS
1. DENIAL OF A TEMPORARY RESTRAINING ORDER IS NOT APPEALABLE
The denial of a Temporary restraining order cannot be appealed. In re
TX Nat. Res – Conserve, Comm’n., 85 SW3d, 201, 205 (TX. 2002); Ex
Parte Tucci, 859 SW2d 1, 2, n. 4 (TX 1993); Henke v. Peoples State Bank,
6 SW3d 717, 720 (Corpus Christi 1999, pet. dismissed); TRCP 680 (TRO
“shall expire by its terms.’)
2. COUNTY COURTAT LAW NO. 5 DID NOT HAVE JURISDICTION TO PASS
ON A JUSTICE COURT JUDGMENT WHICH BECAME FINAL
Justice Courts have original and exclusive jurisdiction over
Forcible Entry and Detain (FED) actions. The jurisdiction of Texas
courts is conferred solely by the Texas Constitution and state
statutes. Chenault v. Phillips, 914 SW2d 140, 141 (TX 1996). The
justice courts were created by the Texas Constitution. See Texas
Constitution Article 5, § 19. Justice courts in the precinct where the
real property is located have original and exclusive jurisdiction over
eviction suits. Government Code § 27.03 (a)(2).
7 District Courts lack jurisdiction to issue an injunction restraining
a landlord from terminating a lease since the issue was subject to
Justice Court’s possessive, original and exclusive jurisdiction over FED
actions. Kassim v. Carlisle Interests (App 5 2010) 308 SW3d 537.
“…District Court’s order did not restrain landlord from pursuing
their FED action in Justice of the Peace Court.” Breceda v. Wii (App 8
Dist 2005) 224 SW3d 237.
In short, District Courts and County Courts have no authority to
restrain Justice Courts from determining a right of immediate
possession. The 11th District Court of Houston was without
jurisdiction to grant injunctive relief against FED proceedings in the
absence of showing that the County Court was without jurisdiction to
proceed or that the judgment entered was void. Gilliam v. Baker, 195
SW2d 824 (Houston, 1946) ref nre.
Appellant has advanced the argument that if the value of the
property exceeds $10,000 a Justice Court exceeds its jurisdiction in
deciding an FED action. Appellant has confused monetary jurisdiction
with subject matter jurisdiction. Monetary jurisdiction concerns itself
with the amount in controversy. Subject matter jurisdiction focuses
8 on the type of case a particular tribunal can hear, for example, an
Admiralty Court or the Railroad Commission.
Historically, the distinction between those legal concepts is
clear. The difference is so fundamental that it exists in all legal
systems in being.
In fact, Appellant’s argument was applied in an effort to extend
the subject matter jurisdiction of County Courts to resolve the
determination of title to land because their monetary jurisdiction had
been increased. In rejecting this analysis, the Court of Appeals noted:
Appellees provided neither authority nor good reason for this court to ignore completely § 26-043, which clearly and specifically limits the subject matter jurisdiction of County Court regardless of the amount in controversy; limitations placed on statutory County Courts by § 25.0003(c). Loville v. Loville, 944 SW2d 818, 819 (Beaumont - 1997) writ denied.”
The equation of monetary and subject matter jurisdiction is
error and does violence to settled legal principles that are too plain
for argument.
9 3. THE DISSOLUTION OF THE TRO FOLLOWING A HEARING IN THE COURT
WHERE APPELLANT FILED HIS ACTION CANNOT CONSTITUTE AN ABUSE OF
DISCRETION
The decision of the County Court on the action pending before it
is nothing more and nothing less than the exercise of judicial
judgment over a controversy pending before it. This is the essence of
judicial resolution of a legal matter. What else is the judge to do
except decide the case before him?
Appellant filed his request for a TRO with County Court at Law
No. 5. He did this without standing after he illegally occupied
premises following the death of James H. Maples on March 29, 2015.
This property was owned by James H. Maples since 1978. The Maples
family insisted that Counsel reinstitute another FED action, which
operated to the benefit of Mr. Partain.
In the interim, Appellant misrepresented to a Dora Martinez
that he owned the property. His tenant failed to show for two
eviction proceedings and a judgment was taken and became final.
The action in County Court at Law No. 5, came nine days after the
10 rendition of judgment in the Justice Court and could not constitute
an appeal of the Justice Court proceeding.
At the hearing, Appellant presented only argument. Appellant
requested the Court to make findings of fact and conclusions of law.
His suit for injunctive relief was not an appeal of the FED action. In
this respect, his pleadings did not comply with the requisites for
injunctive relief under the Texas Rules of Civil Procedure and the
court dissolved the injunction. The ruling was a negative finding that
Appellant did not prove his case. It is a failure to find that does not
need evidentiary support.
His bizarre assignments of error do not raise a single factual
sufficiency issue. He has not shown himself entitled to judgment as a
matter of law so he has failed to raise any legal sufficiency points.
Nor has he alleged that the finding of the court was so against the
great weight and preponderance of the evidence that it was
manifestly unjust or erroneous. So that Appellate point has fallen by
the wayside. Appellant simply, in the words of a Federal Bankruptcy
judge predicated his complaint on the sole ground “…that he is dis-
11 satisfied with the result.” This is another classic mistake that a
layman would make.
After he lost, Appellant tried to have County Court at Law No. 7
grant him injunctive relief in a matter that had already been decided
by County Court at Law No. 5 in an effort to relitigate the case. After
losing there, Appellant then went to County Court at Law No. 8 trying
to duplicate his unsuccessful efforts and called for the incarceration
and disbarment of adverse Counsel, where he lost again. See
Appendix 12.
4. TEXAS PROPERTY CODE § 24 CANNOT BE UNCONSTITUTIONAL
Appellant argues that a Property Code provision which has the
force of a statute is inherently unconstitutional because after hearing
by courts of competent jurisdiction, it deprives him of property
without due process of law. First, without getting into what or how
much process is due, in view of the previous 17 proceedings since
this Counsel’s involvement, the argument is so obviously lunatic it
does not warrant a response.
12 To state it simply, Federal and State Court judgments by courts
of competent jurisdiction, if allowed to become final are entitled to
full faith and credit throughout the nation. Simply because a litigant
loses a case, which may result in a loss of money or property, does
not constitute the substantial equivalent of a denial of due process,
exceeding the scope of judicial authority or a lack of constitutionality
because one side has lost and one side has won. That is the nature of
litigation.
Appellate Courts have the authority to award damages for
frivolous appeals under the Texas Rules of Appellate Procedure
(TRAP) 62; Hennigan v. Hennigan, 677 SW2d 495, 496 (TX 1984). This
is a frivolous appeal. Appellee requests that he be awarded $45,000
in damages for the numerous, frequent and repeated filings and
associated legal costs in terms of time and energy reflective of the
infinite relitigation that is characteristic of Appellant’s endless refusal
to accept adverse judgments. This blank wall irrationality that seeks
to have the courts determine that black is white, up is down, in is out
and square is round needs to be brought to an end.
13 5. THE TURNOVER NO 5 WAS ERRADICATED BY A FEDERAL COURT
Infamous Turnover Order No 5 was neutralized and held for
naught by Judge Marvin Isgur in a Federal Court Adversary
Bankruptcy Proceeding. For Chronology, See Appendix 7; Judgment
08-27-06 See Appendix 7; Motion for Contempt Exhibit 2, See
Appendix 8-9. Despite this, he keeps clinging it to it like an amulet,
ignoring the fact that it is without legal effect.
Examination of the forty-page docket sheet shows no action for
a turnover proceeding pursuant to statute was ever initiated in
County Court at Law No. 1, pursuant to TCPRC § 31.002. This order
was concocted by Partain at his sweeping best. Preliminary
requirements that the debtor own property that cannot be attached
or levied upon by a court during a legal proceeding and that is not
exempt from process were never met. Without this, the court can
grant no relief under the statute. Tanner v. McCarthy 274 SW3d 311
(Houston 1st Dist. 2008). This is an extraordinary remedy which
courts are loath to utilize except as a last resort. Rusk v. Rusk 5 SW3d
299 (Houston 14th Dist. 1999). It cannot be used to attach assets not
14 subject to attachment or that can be levied on by ordinary legal
process. In Gerjets v. Davila 116 SW3d 864 (Corpus Christi, 2003);
Bellore SA v. Import Warehouse 448 F2d 317 (5th Circuit 2006).
Partain, without the aid of an appointed receiver or the Court
and without making proof of necessary facts to authorize the
invocation of the Turnover Statute to remove property, without
showing a lack of other legal remedies and without determining the
exempt or non-exempt nature of property subject to attachment,
started kicking in doors and removing property. The Turnover Statute
cannot determine property rights of judgment debtors Bellore SA v.
Import Warehouse 448 F2d 317 (5th Circuit 2006). It cannot
determine ownership of funds Craven v. Daugin Travers Company
770 SW2d 573 (Houston 14th Dist. 1989) writ denied.
Most importantly, the Turnover Statute can never be used to
pre-empt the jurisdiction of a sister court with dominant jurisdiction.
Republic Ins. v. Millar 525 SW2d 780 (Houston 14th Dist. 1992).
15 CONCLUSION
Acquiring a comfortable understanding of the law is a difficult task.
The law consists of 10 main headings, 500 topics and in excess of 80,000
subtopics. Law school exposes us to only 40 courses. In addition, the law is
an expanding, evolving, organic thing so civil law changes every Monday
and criminal law every Friday. Moreover, there is sustentative and
procedural law at the state and federal level to say nothing of the
labyrinthian morass of administrative law coexisting in there own state and
federal spheres that are likewise changing.
As difficult as this task is, it becomes impossible without seasoned
professionals steeped in its rules who after a period of practice elect to
instruct students. Absent such guidance and their compass, it becomes a
mass of contradictions wherein rules are befuddled by so many exceptions
that nothing of an affirmative nature seems to be said.
People untrained in the law can have things explained, but that does
not guarantee understanding. The more one reflects on legal questions the
more ramifications they present. This has been no more than a partial
reconnaissance. Nor has their applicability to a specific set of facts been 16 addressed. The lack of legal training and its consequence has been amply
demonstrate by the appellant.
PRAYER
For the reasons stated, Appellee asks that the requested relief be
denied. Appellee further asks hat this Court consider an award of damages
for the filing of a frivolous appeal under the authority of TRAP rule 62 and
Hennigan v. Hennigan, 677 SW2d 495, 496 (TX 1984).
17 Thirteenth Court of Appeals
CERTIFICATE OF COMPLIANCE
I, William J. McCarthy, Attorney at Law, hereby certify that this
Appellee’s Brief has a word count of 3048 words within conformance of
trap 9.4(i)(1).
18 Thirteenth Court of Appeals
CERTIFICATE OF SERVICE
I, William J. McCarthy, Attorney at Law, hereby certify that I have
caused to be delivered a true and correct copy of the Appellee’s Brief on or
before the 17th day of February, 2015 via email to: Johnny and Theresa
Partain, through Johnny Partain, Pro Se Litigant, 7020 N. 16th Street,
McAllen, Texas 78504; partain@atlastechnologies.biz .
Note: (Misrepresentations have been made concerning Appellant’s e-mail
address. Sometimes that address has been deliberately stated by Johnny
19 Partain to adverse counsel as partain@atlastechnologies.diz . Appellant has
dodged service prior to this proceeding.)
William J. McCarthy, Attorney at Law
Texas Bar # 13372500
124 S. 12th, Edinburg, Texas 78539
Phone: 956.383.5654
Fax: 956.381.0002
Email: mccarthy.625@gmail.com