No. 01-12-00945-CV
IN THE COURT OF APPEALS FOR THE FILED IN FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON 2/12/2015 2:14:49 PM CHRISTOPHER A. PRINE Clerk LEE A. HARDY AND POLLY HARDY
Appellants
v.
WELLS FARGO BANK, N.A., DAVID E. BROWN AND RESCONN INVESTMENTS, LLC
Appellees
ON APPEAL FROM 157TH JUDICIAL DISTRICT COURT HARRIS COUNTY, TEXAS TRIAL COURT CAUSE NO. 1107737
UNOPPOSED MOTION FOR LEAVE TO WITHDRAW AS COUNSEL FOR APPELLANTS
THOMAS F. JONES III State Bar No. 10974400 P.O. Box 130762 Houston, Texas 77219-0762 (832) 398-6182 (832) 200-3524 (Facsimile) tfjonesiii@gmail.com ATTORNEY FOR APPELLANTS
-1- Thomas F. Jones III, attorney for Appellants Lee A. Hardy and Polly Hardy,
files this Motion for Leave to Withdraw as Counsel for Appellants (“Motion to
Withdraw”) and would respectfully show the following:
A. Basis for Withdrawal
1. Appellants are Lee A. Hardy and Polly Hardy. Thomas F. Jones III
(“Mr. Jones) is the attorney for Appellants. Mr. Jones has accepted employment at
the Houston law firm of Codilis & Stawiarski, P.C. (“Law Firm”). Prior to
accepting such employment, Mr. Jones was a solo practitioner.
2. The Law Firm represents Appellee Wells Fargo Bank, N.A. (“Wells
Fargo”). The Law Firm and Mr. Jones have determined that there is a conflict of
interest if Mr. Jones represents the Appellants while employed by the Law Firm.
Therefore, Mr. Jones must withdraw from representing the Appellants.
3. Mr. Jones informed the Appellants that this conflict of interest
prevented Mr. Jones from continuing to represent the Appellants.
4. Mr. Jones provided Appellants with recommendations of attorneys
who could represent Appellants. One of the recommended attorneys (“Substitute
Attorney”) agreed to meet with Appellants and Mr. Jones to discuss representing
the Appellants.
5. The Substitute Attorney agreed to meet on January 5, 2015 with
Appellant Lee A. Hardy and Mr. Jones. Initially, Mr. Hardy agreed to the meeting. -2- However, later Mr. Hardy declined to meet until a court deadline necessitated the
substitution of attorney.
6. On January 22, 2015 the Court requested that by February 12, 2015
the Appellants file a response to the Motion of Appellee Wells Fargo for Rehearing
(the “Motion for Rehearing”).
7. Mr. Jones provided Appellants with a copy of the Motion for
Rehearing. Mr. Jones advised that the response needed to be timely filed but
because of the conflict of interest, Mr. Jones could not file the response. As a
result, Mr. Jones advised that it was necessary to substitute another attorney for
him.
8. The Substitute Attorney agreed to meet on January 26, 2015 with
Appellant Mr. Hardy and Mr. Jones.
9. Again, initially Mr. Hardy agreed to meet with the Substitute Attorney
and Mr. Jones. However, on the day of the meeting, Mr. Hardy refused to meet
with the Substitute Attorney and Mr. Jones.
10. Mr. Jones has determined that there no longer exists the
attorney/client relationship which is necessary for Mr. Jones to adequately
represent the Appellants in this case.
11. Pursuant to Tex. R. App. P. 6.5(a)(1), the list of the current deadlines
and settings in the case are:
-3- a. February 12, 2015: Appellants’ response due to Motion of Appellee
Wells Fargo for Rehearing.
12. Pursuant to Tex. R. App. P. 6.5(a)(2):
a. Appellants’ names are Lee A. Hardy and Polly Hardy;
b. Appellants’ last known mailing address is P.O. Box 66, Humble,
Texas 77347. Mr. Hardy refused to provide Appellants’ physical
address; and
c. Appellants’ home telephone number is (281) 459-3884 and Appellant
Polly Hardy’s mobile telephone number is (832) 527-4714.
13. Pursuant to Tex. R. App. P. 6.5(a)(3), a copy of this Motion to
Withdraw was delivered to Appellants.
14. Pursuant to Tex. R. App. P. 6.5(a)(4), Appellants were notified in
writing of the right to object to this Motion to Withdraw.
15. Pursuant to Tex. R. App. P. 6.5(b), this Motion to Withdraw was
delivered by mail-both by certified and by first class mail-to the Appellants at
Appellants’ last known address.
16. Concurrently with this Motion to Withdraw, a Motion was filed to
extend the time for Appellants to respond to the Motion for Rehearing until 30
days after the Court rules on this Motion to Withdraw. The extension will allow
-4- Appellants time to find substitute counsel should the Court grant this Motion to
Withdraw.
17. Appellee Wells Fargo Bank, N.A., through its counsel, does not
oppose this Motion to Withdraw.
B. Argument and Authorities
18. Tex. R. App. P. 6.5 permits an attorney to withdraw from
representation in a case.
19. Texas Disciplinary Rules of Professional Conduct 1.06(b) & (e)
requires an attorney to withdraw from representation if the attorney has a conflict
of interest.
20. Mr. Jones, as the attorney of record for Appellants, has a conflict of
interest which requires him to withdraw.
21. Mr. Jones has attempted to arrange substitution counsel for Appellants
but Appellant Lee Hardy refuses to meet with possible substitute counsel.
22. Attached to this Motion is an Affidavit to establish facts that are no
included in the appellate record and are not known to the Court in its official
capacity, although they are within the personal knowledge of Mr. Jones, who is the
attorney signing this Motion.
-5- C. Conclusion and Prayer
For the reasons stated above, Thomas F. Jones III requests the Court to:
1) Allow Mr. Jones to withdraw as counsel for Appellants in this case;
and
2) grant such other relief as the Court may deem proper.
Respectfully submitted,
/s/ Thomas F. Jones III Thomas F. Jones III State Bar No. 10974400 P.O. Box 130762 Houston, Texas 77219-0762 (832) 398-6182 (832) 200-3524 (Facsimile) tfjonesiii@gmail.com
COUNSEL FOR APPELLANTS LEE A. HARDY AND POLLY HARDY
-6- CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties which are listed below on February 12, 2015 as follows:
Lee A. Hardy Polly Hardy P.O. Box 66 Humble, Texas 77347 Appellants Via Certified Mail No. 7014 2870 0002 0549 3758 Return Receipt Requested, postage prepaid Via First Class Mail, postage prepaid
Mr. George A. Kurisky, Jr. Johnson DeLuca Kurisky & Gould, P.C. 1221 Lamar, Ste. 1000 Houston, Texas 77010 Attorney for Wells Fargo Bank, N.A. Via Email (gkurisky@jdkglaw.com)
Mr. David T. Dorr Law Office of David T. Dorr, P.C. P.O. Box 920907 Houston, Texas 77292-0907 Attorney for David E. Brown and Resconn Investments, LLC Via Certified Mail No. 7014 2870 0002 0549 3765 Return Receipt Requested, postage prepaid
/s/ Thomas F. Jones III Thomas F. Jones III
February 12, 2015 Date
-7- THE STATE OF TEXAS § § COUNTY OF HARRIS §
AFFIDAVIT OF THOMAS F. JONES III
BEFORE ME, the undersigned authority, on this day personally appeared
THOMAS F. JONES III, the Affiant, a person whose identity is known to me.
After I administered an oath to Affiant, Affiant testified:
“My name is Thomas F. Jones III. I am over 18 years of age, of sound mind, and capable of making this Affidavit. The facts stated in this Affidavit are within my personal knowledge and are true and correct.
“I am the counsel for Appellants, Lee A.
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No. 01-12-00945-CV
IN THE COURT OF APPEALS FOR THE FILED IN FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON 2/12/2015 2:14:49 PM CHRISTOPHER A. PRINE Clerk LEE A. HARDY AND POLLY HARDY
Appellants
v.
WELLS FARGO BANK, N.A., DAVID E. BROWN AND RESCONN INVESTMENTS, LLC
Appellees
ON APPEAL FROM 157TH JUDICIAL DISTRICT COURT HARRIS COUNTY, TEXAS TRIAL COURT CAUSE NO. 1107737
UNOPPOSED MOTION FOR LEAVE TO WITHDRAW AS COUNSEL FOR APPELLANTS
THOMAS F. JONES III State Bar No. 10974400 P.O. Box 130762 Houston, Texas 77219-0762 (832) 398-6182 (832) 200-3524 (Facsimile) tfjonesiii@gmail.com ATTORNEY FOR APPELLANTS
-1- Thomas F. Jones III, attorney for Appellants Lee A. Hardy and Polly Hardy,
files this Motion for Leave to Withdraw as Counsel for Appellants (“Motion to
Withdraw”) and would respectfully show the following:
A. Basis for Withdrawal
1. Appellants are Lee A. Hardy and Polly Hardy. Thomas F. Jones III
(“Mr. Jones) is the attorney for Appellants. Mr. Jones has accepted employment at
the Houston law firm of Codilis & Stawiarski, P.C. (“Law Firm”). Prior to
accepting such employment, Mr. Jones was a solo practitioner.
2. The Law Firm represents Appellee Wells Fargo Bank, N.A. (“Wells
Fargo”). The Law Firm and Mr. Jones have determined that there is a conflict of
interest if Mr. Jones represents the Appellants while employed by the Law Firm.
Therefore, Mr. Jones must withdraw from representing the Appellants.
3. Mr. Jones informed the Appellants that this conflict of interest
prevented Mr. Jones from continuing to represent the Appellants.
4. Mr. Jones provided Appellants with recommendations of attorneys
who could represent Appellants. One of the recommended attorneys (“Substitute
Attorney”) agreed to meet with Appellants and Mr. Jones to discuss representing
the Appellants.
5. The Substitute Attorney agreed to meet on January 5, 2015 with
Appellant Lee A. Hardy and Mr. Jones. Initially, Mr. Hardy agreed to the meeting. -2- However, later Mr. Hardy declined to meet until a court deadline necessitated the
substitution of attorney.
6. On January 22, 2015 the Court requested that by February 12, 2015
the Appellants file a response to the Motion of Appellee Wells Fargo for Rehearing
(the “Motion for Rehearing”).
7. Mr. Jones provided Appellants with a copy of the Motion for
Rehearing. Mr. Jones advised that the response needed to be timely filed but
because of the conflict of interest, Mr. Jones could not file the response. As a
result, Mr. Jones advised that it was necessary to substitute another attorney for
him.
8. The Substitute Attorney agreed to meet on January 26, 2015 with
Appellant Mr. Hardy and Mr. Jones.
9. Again, initially Mr. Hardy agreed to meet with the Substitute Attorney
and Mr. Jones. However, on the day of the meeting, Mr. Hardy refused to meet
with the Substitute Attorney and Mr. Jones.
10. Mr. Jones has determined that there no longer exists the
attorney/client relationship which is necessary for Mr. Jones to adequately
represent the Appellants in this case.
11. Pursuant to Tex. R. App. P. 6.5(a)(1), the list of the current deadlines
and settings in the case are:
-3- a. February 12, 2015: Appellants’ response due to Motion of Appellee
Wells Fargo for Rehearing.
12. Pursuant to Tex. R. App. P. 6.5(a)(2):
a. Appellants’ names are Lee A. Hardy and Polly Hardy;
b. Appellants’ last known mailing address is P.O. Box 66, Humble,
Texas 77347. Mr. Hardy refused to provide Appellants’ physical
address; and
c. Appellants’ home telephone number is (281) 459-3884 and Appellant
Polly Hardy’s mobile telephone number is (832) 527-4714.
13. Pursuant to Tex. R. App. P. 6.5(a)(3), a copy of this Motion to
Withdraw was delivered to Appellants.
14. Pursuant to Tex. R. App. P. 6.5(a)(4), Appellants were notified in
writing of the right to object to this Motion to Withdraw.
15. Pursuant to Tex. R. App. P. 6.5(b), this Motion to Withdraw was
delivered by mail-both by certified and by first class mail-to the Appellants at
Appellants’ last known address.
16. Concurrently with this Motion to Withdraw, a Motion was filed to
extend the time for Appellants to respond to the Motion for Rehearing until 30
days after the Court rules on this Motion to Withdraw. The extension will allow
-4- Appellants time to find substitute counsel should the Court grant this Motion to
Withdraw.
17. Appellee Wells Fargo Bank, N.A., through its counsel, does not
oppose this Motion to Withdraw.
B. Argument and Authorities
18. Tex. R. App. P. 6.5 permits an attorney to withdraw from
representation in a case.
19. Texas Disciplinary Rules of Professional Conduct 1.06(b) & (e)
requires an attorney to withdraw from representation if the attorney has a conflict
of interest.
20. Mr. Jones, as the attorney of record for Appellants, has a conflict of
interest which requires him to withdraw.
21. Mr. Jones has attempted to arrange substitution counsel for Appellants
but Appellant Lee Hardy refuses to meet with possible substitute counsel.
22. Attached to this Motion is an Affidavit to establish facts that are no
included in the appellate record and are not known to the Court in its official
capacity, although they are within the personal knowledge of Mr. Jones, who is the
attorney signing this Motion.
-5- C. Conclusion and Prayer
For the reasons stated above, Thomas F. Jones III requests the Court to:
1) Allow Mr. Jones to withdraw as counsel for Appellants in this case;
and
2) grant such other relief as the Court may deem proper.
Respectfully submitted,
/s/ Thomas F. Jones III Thomas F. Jones III State Bar No. 10974400 P.O. Box 130762 Houston, Texas 77219-0762 (832) 398-6182 (832) 200-3524 (Facsimile) tfjonesiii@gmail.com
COUNSEL FOR APPELLANTS LEE A. HARDY AND POLLY HARDY
-6- CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties which are listed below on February 12, 2015 as follows:
Lee A. Hardy Polly Hardy P.O. Box 66 Humble, Texas 77347 Appellants Via Certified Mail No. 7014 2870 0002 0549 3758 Return Receipt Requested, postage prepaid Via First Class Mail, postage prepaid
Mr. George A. Kurisky, Jr. Johnson DeLuca Kurisky & Gould, P.C. 1221 Lamar, Ste. 1000 Houston, Texas 77010 Attorney for Wells Fargo Bank, N.A. Via Email (gkurisky@jdkglaw.com)
Mr. David T. Dorr Law Office of David T. Dorr, P.C. P.O. Box 920907 Houston, Texas 77292-0907 Attorney for David E. Brown and Resconn Investments, LLC Via Certified Mail No. 7014 2870 0002 0549 3765 Return Receipt Requested, postage prepaid
/s/ Thomas F. Jones III Thomas F. Jones III
February 12, 2015 Date
-7- THE STATE OF TEXAS § § COUNTY OF HARRIS §
AFFIDAVIT OF THOMAS F. JONES III
BEFORE ME, the undersigned authority, on this day personally appeared
THOMAS F. JONES III, the Affiant, a person whose identity is known to me.
After I administered an oath to Affiant, Affiant testified:
“My name is Thomas F. Jones III. I am over 18 years of age, of sound mind, and capable of making this Affidavit. The facts stated in this Affidavit are within my personal knowledge and are true and correct.
“I am the counsel for Appellants, Lee A. Hardy and Polly Hardy, in this Appeal. I have prepared and have read the Unopposed Motion to Withdraw as Counsel for Appellants to which this Affidavit is attached. All of the facts stated in that Motion are true and correct, and I have personal knowledge of those facts.
“The relief requested in the Motion is not sought for delay only, but that justice may be done.”
SIGNED AND SWORN to before me by said Thomas F. Jones III, to certify which witness my hand and seal of office, on this 11th day of February, 2015.
/s/ Cathy Cagle Notary Public--State of Texas My Commission Expires: January 12, 2019
-8-