Sheri Eddleman v. Matthew J. Ocker

• Court: Court of Appeals of Texas
• Decided: October 6, 2015
• Docket: 13-15-00217-CV
• Status: Published

Opinion

ACCEPTED 13-15-00217-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/6/2015 10:34:09 AM Dorian E. Ramirez CLERK No. 13-15-00217-CV

IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS FILED- IN 13th COURT----OF APPEALS -- - - ---- CORPUS CHRISTI/EDINBURG, TEXAS - - -- ss ------ - 10/6/2015 - - ID 10:34:09 - - AM ---- VO ------ DORIAN - - E. RAMIREZ SHERI EDLEMAN, ---- ---- Clerk Appellant/Defendant,

v. RECEIVED IN MATTHEW J. OCKER, 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS A p pellee/Plain tiff. 10/6/2015 10:34:09 AM DORIAN E. RAMIREZ Clerk Appealed from 319th District Court Nueces County, Texas Cause No. 2013-DCV-4182-G Hon. David Stith

FIRST AMENDED BRIEF OF APPELLEE MATTHEW J. OCKER

William J. Kelly Texas State Bar No. 11240500 1402 N. Chaparral Street Corpus Christi, Texas 78401 Tel: 361-888-6600 Fax: 361-887-7732 ORAL ARGUMENT REQUESTED Attorney for Matthew J. Ocker IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex R. App. P. 38.l(O)(l)(A) and 38.2(a)(l) following is list of all the parties to the Trial Court Judgment and the names and addresses of all the trial and appellate counsel:

Sheri Eddleman: Defendant and Appellant Trial Counsel in 319th District Court Lynn A. Knaupp 203 Liberty St. Victoria TX 77901 Breach of Contract Suit from which this appeal originated

Appellate Counsel: Robert E. McKnight, Jr. /Lynn A. Knaupp Marek, Griffin and Knaupp 203 N. Liberty St. Victoria, TX 77901

Matthew J. Ocker Plaintiff and Appellant Trial Counsel and Appellate Counsel: William J. Kelly 1402 N. Chaparral Corpus Christi, TX 78401 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL ........................................................ i

TABLE OF CONTENTS ...................................................................................... ii

INDEX OF AUTHORITIES ................................................................................. iii

STATEi\1ENT OF TIIE CASE ............................................................................. v

STATEi\1ENT OF FACTS .................................................................................... 1

SUMMARY OF TIIE ARGUMENT .................................................................... 6

ARGUi\1ENT ........................................................................................................ 11

PRAYER FOR RELIEF ........................................................................................ 48

CERTIFICATE OF SERVICE .............................................................................. 49

CERTIFICATE OF COMPLIANCE .................................................................... 49

APPEND IX ........................................................................................................... 5 0

11 INDEX OF AUTHORITIES

CASES Page

Curtis vs. Gibbs. 511 S. W.2d 263, 267 (Tex 1974) ..................................................... 25

Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406,408 (1958) ....................... 28

In Re Burton, McCumber & Cortez L.L.P. 115 S. W.3d 235, 237 (Tex. App. - Corpus Christi 2003, orig. proceeding) ..................................................................... 35

In Re Lee 411 S. W.3d 445, 453 (Tex 2013) ................................................................ 42

In Re Lopez 372S.W.3d 174 (Tex 2012) ..................................................................... 35

In Re Milner 3618. W.3d 615, 622 (Tex 2012) ............................................................ 19

In the Interest o(H.N.O. and MH.O. No. 13-14-000125-CV, 2014 WL 3541803 (Tex. App.-Corpus Christi July 17, 2014, no pet) ....................................................... 9, 18, ..................................................................................................................................... 19, 20

In the Matter of the Marriage o(Ames, 860 S. W.2d 590 (Tex Civ App -Amarillo 1993), no writ) ............................................................................................................. 20

Kilroy vs. Kilroy 137 S. W.3d 780 784, 789 (Tex App - Houston [r' Dist] 2004, no writ) ............................................................................................................................. 27, 33

Pettus vs. Pettus, 237 S.W.3d 405-419 (Tex. App.-Fort Worth 2007, writ denied). ..................................................................................................................................... 17, 28

Sweezy Constr. Inc. V Murray, 915 S. W.2d 527, 531 (Tex. App-Corpus Christi 1995, Org. Proceeding) .............................................................................................. 25

Texas Beef Cattle Co v Green, 921 S.W.2d 203, 212 (Tex 1996) .............................. 45

Wyatt v. Shaw Plumbing Co. 760 S. W.2d 245, 247 (Tex 1988) ................................. 25

111 STATUTES AND OTHER AUTHORITIES

Blacks Law Dictionary 5th Edition .............................................................................. 32

Texas Civil Practice and Remedies Code §171.096(c) .............................................. 34

Texas Family Code §6.602 ..................................................... ................. .................... 41

Texas Family Code §153. 0071 .................................................................................... 41

Texas Rules of Civil Procedure 94 ..................................... ......................................... 49

IV TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW MATTHEW J. OCKER, Appellee, and respectfully

submits this brief. In support thereof, Appellee shows the following:

STATEMENT OF THE CASE

The underlying cause of action is a Suit for Breach of Contract brought by

Appellee based upon Appellant's failure to comply with the terms and conditions

of a Mediated Settlement Agreement reached in their family law litigation in a

different Court (CR 5-8). Appellant filed a General Denial and two pre-trial

motions, a Motion to Abate and a Motion to Transfer Venue in response it

Appellant's Breach of Contract lawsuit (CR 102-107). Appellee thereafter filed an

Application to Compel Arbitration and Motion to Abate/Stay Litigation Pending

Arbitration (CR 192-198), which motion came on to be heard, along with

Appellant's two pre-trial motions, on January 2, 2014. Pursuant to that hearing the

Honorable Judge David Stith, 319th Judicial District Court, held in abeyance his

ruling on Appellant's two pre-trial motions and granted Appellee's Application to

Compel Arbitration and Motion to Abate/Stay Litigation Pending Arbitration (CR

238-239). Mediation was held on March 17, 2014, but an impasse was declared.

The parties subsequently went to arbitration and on May 5, 2014, the Arbitrator

made a ruling. Appellee then filed a Motion to Vacate Arbitration Award in the

319th Judicial District Court (CR 240-245); Appellee filed An Opposition to

v Plaintiffs Motion to Vacate Arbitration Award and Cross-Motion to Confirm

Arbitration Award (CR 290-301). On February 24, 2015, a hearing was held in the

319th Judicial District Court and the Court granted Appellee's Motion to Vacate

Arbitration Award and denied Appellant's Motion to Confirm Arbitration Award

(CR 423-425). It is from this order that EDDLEMAN appeals (CR 426-427).

Given Appellant's reference in her "Issues Presented" to proceedings in the

13th Court of Appeals and the 24•h District Court, Appellee respectfully notes to the

Honorable Appellate Court that parallel to the litigation going on in the 319th

Judicial District Court, Appellee had filed a motion in the 24th Judicial District

Court in Victoria County, the Family Law Court, seeking to enforce the Mediated

Settlement Agreement (CR 98-101). This order was granted in part, and the parties

were ordered back to mediation and arbitration but the Court did not award the

Appellee his attorney's fees and costs (Addendum C). Ultimately, the Judge in the

24th Judicial District Court did not award OCKER his attorney's fees, costs, and

did not assign those issues to the Mediator/Arbitrator for resolution (CR 204-233).

OCKER appealed this ruling to the 13th Court of Appeals (CR 346-347). That

appeal was ultimately dismissed (CR 364-365), because the parties had

contractually agreed to submit those issues to the Arbitrator for resolution (CR

246-247).

Vl STATEMENT REGARDING ORAL ARGUMENT

Appellee has respectfully noted his request for oral argument. Appellee

believes that oral argument would assist the Honorable Appellate Court by

allowing counsel to accurately dissect and explain to the Honorable Appellate

Court the related proceedings underlying:

1. the present appeal of the Order arising out of the 319th Judicial District

Court, Nueces County, Texas;

2. the proceedings before the 24th Judicial District Court, Victoria County,

Texas, which Appellant notes in its "Issues Presented;" and

3. the Arbitration proceedings associated with both District Court matters.

Appellee agrees that the Honorable Appellate Court will benefit from oral

argument because of the controverted proceedings that led up to the arbitration and

order appealed in this Appellate cause; however, Appellee respectfully disagrees

with the arguments and assertion of facts contained in Appellant's "Statement in

Support of Oral Argument."

Vil STATEMENT OF FACTS

EDDLEMAN and OCKER were divorced in 2009 (CR 27-68) with

EDDLEMAN given the exclusive right to designate the primary residence of the

children without regard to geographic location (CR 31 ). OCKER had the

responsibility of picking up the children either at school, or at EDDLEMAN's

residence at the beginning of his periods of possession and returning them to

school or EDDLEMAN's residence at the end of his periods of possession. If

however, EDDLEMAN moved the children out of Victoria County, then she would

be solely responsible for paying to transport the children to and from OCKER's

residence one weekend per month at her sole expense (CR 39). In 2012,

EDDLEMAN gave notice that she was going to move the children out of Victoria

County and thereafter, OCKER filed suit in the 24th Judicial District Count to

modify the previously ordered parenting plan (CR 69-85). As part of his prayer for

relief, OCKER requested that if EDDLEMAN was allowed to move the children

out of Victoria County, that the Court modify the terms and conditions of pick up

and delivery of the children, and OCKER asked to reallocate the cost of travel for

the parties for his visitation with the children (CR 82).

On March 29, 2013, the litigants reached a Mediated Settlement Agreement

["MSA" herein] (CR 9-13). The MSA provided that the parties would exchange

the children at the Shell station on HWY 77, south of Cameron . .. (CR 10). The

1 MSA also included a Mediation/Arbitration Clause that required the parties to

mediate and if necessary arbitrate "disputes arising with regards to the

interpretation and/ performance of this agreement or any of it's provisions (pre-

decree), including drafting disputes, pre-decree enforcement matters, issues related

to omitted property, or the necessity and form of closing documents, .. ." (CR 13 @

110).

The parties were unable to resolve numerous drafting disputes in regard to

the Order stemming from the MSA. On June 7, 2013, EDDLEMAN filed a Motion

to Enter Judgment characterizing the remaining drafting disputes as, "additional

issues and modifications that OCKER wants to have included in the final order. .."

(CR 91-97).

In response to EDDLEMAN's said Motion to Enter Judgment, OCKER filed

a Motion to Enforce Mediated Settlement Agreement, seeking to enforce the

mediation/arbitration clause in 110 of the MSA, and to recover his attorney's fees,

court costs, and expenses including the cost of Mediation/Arbitration, also in

conformity with 110 of the MSA (CR 98-100). These motions came on to be heard

on June 25, 2013, at which time Judge Alcala, 24th Judicial District Court, found

that the parties had entered into the agreement freely and that pursuant to this

agreement they were to resolve disputes by going to mediation and if necessary

arbitration (Appendix A; see Appendix C). Judge Alcala then contradicts himself

2 and questions whether there is or not an agreement (Appendix A). Subsequently,

Judge Alcala forwarded an email instructing undersigned counsel to "prepare an

order reflecting the Court's action today" (Appendix B) 1; including an abatement

pending mediation or arbitration2 • An order was prepared and approved as to form

memorializing the Court's actions of June 25, 2013 (Appendix c)3. Pursuant to the

Judge' s ruling as outlined in his email and as set out in his order, signed July 10,

2013, the parties were directed back to Mediation/Arbitration consistent with the

MSA (Appendix C). Notably missing from Judge Alcala's e-mail and the executed

Order is any ruling vacating the exchange provisions of the MSA or reinstating any

previous Orders on that issue (Appendix B). EDDLEMAN continued to refuse to

mediate the remaining disputed issues.

After the June 25, 2013, hearing EDDLEMAN no longer complied with her

contractual obligation under the MSA to exchange the children at the Shell Station

south of Cameron, TX (CR 249 19). On August 26, 2013, OCKER filed his

lawsuit for Breach of Contract in the 319th District Court, Nueces County (CR 5-

1 This email is included as Exhibit B to the trial brief entitled, Was there a Breach of Contract and is part of the requested supplemental record, and one of the documents considered by Judge Stith of the 3 l 91h and therefore necessary for this Court during its deliberations on this matter. 2 This order is consistent with paragraph 10 of the MSA and which is the only authority under which the judge could order Arbitration. 3 The order granting Motion to Enforce Mediated Settlement Agreement is attached as Exhibit C to the trial brief entitled, Was there a Breach of Contract and is part of the requested supplemented record and is one of the documents considered by Judge Stith of the 3 l 91h when making his ruling, and therefore necessary for this Court's deliberations in this matter.

3 13). OCKER alleged that EDDLEMAN was violating her contractual obligations

in the MSA, and OCKER further alleged that by failing to comply with her

contractual requirement to exchange the children at the Shell station south of

Cameron, TX, and refusing to mediate and if necessary arbitrate, EDDLEMAN

was breaching her contractual obligations in the MSA. EDDLEMAN responded

by filing a Motion to Abate, a Motion to Transfer Venue, and General Denial (CR

102-107).

On October 23, 2013, Judge Alcala, sitting in the 24th District Court in

Victoria, Texas, held a lengthy hearing wherein he resolved all the drafting

disputes between the parties stemming from the MSA, as a result of this hearing,

an Order in Suit to Modify Parent-Child Relationship was signed on November 12,

2013 (CR 204-233). It was in this order that Judge Alcala finally denied OCKER's

attorney's fees, pursuant to his Motion to Enforce Mediated Settlement Agreement

(CR 232), and from which OCKER filed his Notice of Appeal in Appellate Cause

Number 13-14-00125-CV (CR 346-347).

On December 3, 2013, OCKER filed an Application to Compel Arbitration

and Motion to Abate/Stay Litigation Pending Arbitration in the Breach of Contract

suit in the 319th Judicial District Court (CR 192-198). Finally on March 10, 2014,

OCKER's Application to Compel Arbitration and Motion to Abate/Stay Litigation

4 Pending Arbitration was granted and EDDLEMAN was once again ordered to

participate in mediation and if necessary arbitration (CR 238-239).

On March 17, 2014, EDDLEMAN finally participated in mediation pursuant

to 110 of the MSA, but it ended in an impasse.

On March 28, 2014, the parties entered into a written agreement to arbitrate

the outstanding issues pending before the Honorable 13th Court of Appeals and the

319th Judicial District Court (CR 246-247). The Arbitrator entered a ruling on May

5, 2014 (CR 248-252).

On July 17, 2014, this Honorable Court issued a memoranda opinion in

Appellate Cause Number 13-14-00125-CV granting EDDLEMAN unopposed

Motion to Dismiss Appeal (CR 364-365). EDDLEMAN's argued to this Court in

her Motion to Dismiss that OCKER "is not without remedy if he believes that the

Arbitrator erroneously affirms the 24th Judicial District Court's denial of his

Motion for Fees and Cost. His remedies are precisely what he intends to pursue:

asking the Arbitrator to modify the ruling, and/or asking the District Court to

Vacate the Arbitrator's ruling. And if he remains dissatisfied with a District

Court's response to the Arbitrator's ruling, he can appeal to this Court." (CR 365)

On August 15, 2014, the Arbitrator issued his First Amended Arbitration

Award (CR 259-263). On September 9, 2014, the Arbitrator supplemented his first

amended arbitration award by adding an addendum (CR 278-281).

5 After the Arbitration A ward, OCKER filed his Motion to Vacate the

Arbitration Award on August 1, 2014, in the 319th Judicial District Court (CR 240-

245). After the Arbitrator's First Amended Arbitration Award and the Addendum,

OCKER reasserted his Motion to Vacate Arbitration Award on November 13,

2014 (CR 288-289).

On February 24, 2015, Judge Stith sitting in the 319th Judicial District Court

in Nueces County, granted an order vacating the arbitration award, directed the

parties back to the Arbitrator to enter a ruling in conformity with the Arbitrator's

authority pursuant to the March 28, 2014 Arbitration Agreement, and denied

EDDLEMAN's Motion to Confirm the Arbitration Award (CR 423-425). It is

from this order that EDDLEMAN filed her Notice of Appeal in this matter now

before this Appellate Court (CR 426-27).

SUMMARY OF THE ARGUMENT

The Appellant has chosen to appeal Judge Stith's ruling denying her Motion

to Confirm Arbitration Award, leaving in tact Judge Stith's ruling vacating the

arbitration award and directing the parties back to arbitration in conformity with

the Arbitrator's contractual authority. If Appellant's appeal is successful, it will

create the unfortunate circumstance where there will be two separate outcomes

from the same arbitration, the first being confirmation of an Arbitration Award that

6 was made outside of the arbitrator's contractual authority and then a second award

made consistent with the arbitrator's contractual authority.

The arbitrator's ruling was challenged in the 319th Judicial District Court

because the arbitrator ruled on issues that he had no contractual authority to

consider and failed to rule on other issues which he was contractually obligated to

consider.

The arbitrator was obligated to resolve all currently pending issues in the

319th Judicial District Court in Nueces County, Texas, as well as the issues

currently pending in the 13th Court of Appeals (CR 24612).

ISSUES PENDING IN THE 13TH COURT OF APPEALS [13-14-00125-CYJ

OCKER appealed Judge Alcala's decision in the 24th Judicial District Court

to not award him his attorney's fees and costs incurred in his Motion to Enforce

Mediated Settlement Agreement or to refer those issues of Appellate Cause

Number 13-14-00125-CV to mediation and arbitration. EDDLEMAN argued for

dismissal of Appellate Cause Number 13-14-00125-CV, referencing the parties'

letter agreement of March 28, 2014, noting that the matter was subject to the

arbitration proceeding (CR 365, n.l). OCKER did not oppose this motion; he

agreed that the parties had entered into an agreement to have these issues

considered by the arbitrator. Furthermore since the parties had contractually agreed

7 to have the arbitrator consider issues pending before the 13th Court of Appeals, it

was no longer necessary for the Court of Appeals to compel Judge Alcala to direct

the parties to mediate and arbitrate those issues. It seems that this Honorable Court

of Appeals expected that the arbitrator would have complied with its order there by

considering the costs and expenses incurred with OCKER's Motion to Enforce

Mediated Settlement Agreement brought in the 24th District Court. Contrary to the

parties' expectations, the Arbitrator chose not to address the costs and expenses in

OCKER's aforementioned Motion and simply found that the issues pending before

the 13th Court of Appeals were moot in sum, the arbitrator did not resolve an issue

that he was contractually obligated to address.

ISSUES PENDING IN THE 319T8 JUDICIAL DISTRICT COURT

The arbitrator considered and granted Appellant's Pre-Trial Motions to

Abate Proceedings and in the Alternative Transfer Venue to Victoria County, TX.

Both motions sought to keep the 319th Judicial District Court from resolving the

Breach of Contract issues and sought to have either the 24th Judicial District Court

or some other Court in Victoria County decide those issues. Notwithstanding the

fact that Judge Stith of the 319th Judicial District Court choose not to rule on these

pre-trial motions when he abated proceedings and ordered the parties to mediation

and arbitration, these issues became moot because the parties were now not going

to have their disputes resolved in the 319th Judicial District Court or in the 24th

8 Judicial District Court or any other District Court in Victoria County, rather, the

issues in disputes were going to be resolved in either mediation or arbitration per

their agreement (CR 246-247). If there was any question as to whether or not the

pre-trial motions had become moot, that question was closed when the parties by

agreement decided to have their issues resolved in arbitration rather than in Court.

The arbitrator clearly exceeded his authority by failing to rule on issues that were

deferred to him by in the 13th Court of Appeals via Cause Number 13-14-000125-

CV and by ruling on issues that were not pending before the 3191h Judicial District

Court.

Appellee alleged two (2) violations of the MSA Contract. The first of those

violations was EDDLEMAN' s refusal to mediate and if necessary arbitrate pre-

decree disputes. OCKER successfully obtained an order from Judge Alcala of the

24th Judicial District Court compelling EDDLEMAN to mediate and arbitrate

(Appendix C), which order was ignored by her. OCKER was also successful in the

319th Judicial District Court obtaining an order compelling EDDLEMAN to

mediate and, if necessary, arbitrate (CR 238-239). EDDLEMAN did comply with

this order. The alleged breach of the contract case was pending before the 319th

Judicial District Court at the time the parties agreed to arbitrate and yet the

9 arbitrator, in violation of his contractual obligations, did not rule on same (CR 259-

263)4.

The arbitrator ruled that "The Breach of Contract matter currently pending in

Cause No. 2013-DCV-4182-G in the 319th District Court of Nueces County should

be dismissed" (CR 263 ~) this acknowledged the breach matter that was pending.

Appellee also alleged that Appellant violated the MSA by not exchanging

the children at the Shell Station on HWY 77, south of Cameron, TX, as

contemplated by the MSA. Appellant does not disagree that she violated this

provision of the contract, but claims that she was released from that obligation by

an alleged order out of the 24th Judicial District Court, which she claims vacated

the Mediated Settlement Agreement and restored previous Temporary Orders.

This is clearly contrary to the order of the Court order (Appendix B and C).

Furthermore EDDLEMAN is relying on an affirmative defense, "avoidance" of the

MSA agreement which must be plead per TRCP 94. She never plead for

avoidance (CR 102-107) and therefore it was not pending before the 319th Judicial

District Court and not an issue for which the arbitrator had contractual authority to

4 The arbitration ruled that "The Breach of Contract matter currently pending in Cause No. 2013- DCV-4182-G in the 3 l 91h District Court of Nueces County should be dismissed" (CR 263 ~L) thus acknowledging the breach of contract issues were pending.

10 In each instance above, the Arbitrator has exceeded his authority and

disregarded the agreement of the parties (CR 246-247) by both failing to rule on

issues that were pending before him, and by ruling on issues that were not properly

pending before him. Appellant has focused her brief on the principle that the

Arbitrator's actions are excused because even if the arbitrator was wrong, mistakes

of fact or law are not sufficient grounds for not confirming an award, however this

case is about an arbitrator exceeding his authority by either deciding matters that

were not properly submitted for arbitration or overreaching in his authority.

ARGUMENT

On March 29, 2013, the parties successfully mediated their family law

modification issues pending in the 24th Judicial District Court in Victoria County

(CR 9-13). Pursuant to that agreement, the parties agreed that, "if one or more

disputes arise with regards to the interpretation and/or performance of this

agreement, or any of it's provision (pre-decree), including drafting disputes, pre-

decree enforcement matters, issues related to omitted property, or the necessity and

form of closing documents, the parties agree to attempt to resolve the dispute by

mediation with Michael P. O'Reilly, the Mediator who facilitated this settlement.

If mediation fails, the parties agree to enter into binding arbitration with Michael P.

O'Reilly as the Arbitrator. .. " (CR 13)

11 It is undisputed that disputes did arise, including but not limited to drafting

disputes. The Arbitrator so concluded in his Fist Amended Arbitration Award (CR

260 if6). Despite these disputes, and in violation of her express obligation under

the MSA, EDDLEMAN filed a Motion to Enter Judgment pursuant to the MSA.

In an effort to evade her obligation, pursuant to the MSA, she mischaracterized

disputes as additional issues (CR 91-92).

In conformity with the parties' contractual obligations under the MSA,

OCKER filed a Motion to Enforce Mediated Settlement Agreement, seeking to

compel EDDLEMAN to resolve the disputes by mediation with Michael P.

0 'Reilly, and if that failed then by Arbitration with Michael P. 0 'Reilly. Pursuant

to ,r10 of the Mediated Settlement Agreement, he also requested to recover his

attorney's fees, court costs, and expenses including the cost of

Mediation/Arbitration (CR 13), as part of the relief he sought in his Motion to

Enforce Mediated Settlement Agreement (CR 100).

Judge Alcala sitting in the 24th Judicial District Court considered these

competing motions on June 25, 2013. The transcript of complete ruling at said

hearing is attached hereto as Addendum A. On page 28, lines 11-20, the Court

finds that the parties entered into the agreement freely, and they are bound by same

12 and should have their disputes resolved by mediation and if necessary arbitration

with the Mediator. 5

Despite granting OCKER's Motion to Enforce and compelling the parties to

resolve their disputes by mediation and arbitration, thus making OCKER the

prevailing party in a motion brought to enforce the Mediated Settlement

Agreement, Judge Alcala declined to award him his attorney's fees, court costs,

and expenses including the cost of Mediation/Arbitration or to refer those issues to

the Arbitrator in violation of 110 of the Mediated Settlement Agreement (CR 13

It was during this hearing that Judge Alcala engaged in a conversation with

the attorneys, from which conversation the Appellant argues that Judge Alcala

entered an order setting aside the MSA and restored the previous Temporary

Order, which issue will be discussed at greater length in the Breach of Contract

section of this brief.

Subsequently, perhaps after realizing how much the MSA with it's

Arbitration Clause limited his jurisdiction, Judge Alcala sent out an email at 6:48

p.m. asking that Appellee's counsel, "prepare an order reflecting the Court's

actions today" (Addendum B). Judge Alcala abated his ruling on the pending

5 Appellant has asked this Court to take judicial notice of a short excerpt from this transcript, which leaves an incomplete and misleading impression as to the Judge's ruling; Appendix A has been included as an Addendum to this Appeal to give this Court a more complete and accurate description of the hearing events and this Court is asked to take judicial notice of such appendix.

13 motions, that being EDDLEMAN's Motion to Enter Judgment Pursuant to the

Mediated Settlement Agreement, and OCKER' s Motion to Enforce Mediated

Settlement Agreement; however, he does order the relief OCKER sought in his

Motion to Enforce Mediated Settlement Agreement by ordering the parties back to

mediation and arbitration. By obtaining the Order directing the parties back to

mediation and arbitration, OCKER was the prevailing party and was entitled to his

attorney's fees, court costs, and expenses including the cost of

Mediation/Arbitration pursuant to the mandatory language of ,r10 of the MSA, but

that issue appears to now be abated. An order granting OCKER's Motion to

Enforce Mediated Settlement Agreement was prepared and circulated to

Appellant's trial counsel, Lynn Knaupp, and approved as to form (Appendix C).

In Judge Alcala's Order from the June 25, 2013 hearing, such Order signed

on July 10, 2013, Judge Alcala specifically found under ,r10 of the MSA the

prevailing party shall be entitled to recover his attorney's fees, court costs, and

expenses but he abated his ruling.

On November 12, 2013, Judge Alcala ruled and denied the motions that he

had held in abeyance presumably being EDDLEMAN's Motion to Enter Judgment

Pursuant to the Mediated Settlement Agreement and that portion of OCKER' s

Motion to Enforce Mediated Settlement Agreement for which he had not ruled,

(his request for attorney's fees, court costs, and expenses including the cost of

14 Mediation/Arbitration). Judge Alcala goes further and specifically denies

OCKER's request for attorney's fees pursuant to his Motion to Enforce Mediated

Settlement Agreement (CR 232). It is from this order that OCKER appealed to this

Court Cause Number 13-14-00125-CV (CR 346-347).

Subsequently on March 28, 2014, the parties agreed to arbitrate with

Michael P. O'Reilly the issues pending in the 13th Court of Appeals; at the same

time they were arbitrating the issues in dispute in the 319th Judicial District Court

(CR 246-247).

On May 5, 2014, OCKER received Arbitration ruling which, without

explanation, did not award him his fees and costs associated with prevailing on his

Motion to Enforce Mediated Settlement Agreement (CR 248-252).

On May 15, 2014, OCKER filed his Motion to Abate Proceedings in the 13th

Court of Appeals while he pursued a Motion for the Arbitrator to Modify and

correct his Award and a Motion to Vacate Arbitrator's Ruling to be submitted to

the 319th Judicial District Court (CR 362-363).

Subsequently, EDDLEMAN requests that this appeal be dismissed because

OCKER had contractually agreed to arbitrator all pending issues before the 13th

Court of Appeals and waived his right to recourse in the 13th Court of Appeals.

OCKER did not oppose this motion in part because EDDLEMAN had, by her

Motion to Dismiss, judicially admitted that the Arbitrator was contractually

15 obligated to consider OCKER's fees and costs. The Appellate Court granted the

Motion to Dismiss by Memoranda Opinion (CR 364-365). This Appellate Court

granted the EDDLEMAN's Motion to Dismiss, it probably contemplated that the

issues in controversy in the 13th Court of Appeals were going to be addressed by

the Arbitrator. It was not until September 9, 2014, when the Arbitrator released his

Addendum to the First Amended Arbitration Award (CR 278-281), that OCKER

discovered that the Arbitrator considered the issues in the 13th Court of Appeals as

moot, and therefore found that there were no pending issues for him to resolve (CR

279 ,I2).

EDDLEMAN, by filing her Motion to Dismiss Appeal, stipulated and

represented to this Appellate Court that the matters in controversy pending in this

appeal were included among the issues the parties agreed to arbitrate, and therefore

necessarily agreed that, this Appellate Court lost jurisdiction to decide those issues

contained in Cause Number 13-14-00125-CV. This Appellate Court, by granting

the Motion to Dismiss, found that issues pending before it (OCKER's attorney's

fees, court costs, and expenses including the cost of Mediation/Arbitration

associated with his successful Mqtion to Enforce Mediated Settlement Agreement

from June 25, 2013) were among the issues to be resolved by the Arbitrator

pursuant to the March 28, 2014 agreement (CR 364-365).

16 The Arbitrator exceeds his authority when he disregards the contract, and

dispenses his own idea of justice Pettus vs. Pettus, 237 S.W.3d 405-419 (Tex.

App.-Fort Worth 2007, no writ). The Arbitrator, by disregarding his contractual

obligation to resolve the issue of OCKER's fees and costs including but not limited

to the costs of Mediation/Arbitration, did not only deny OCKER the contractual

damages to which he was entitled, but also denied OCKER his right for appellate

review of this issue. The Arbitrator compounds his mistake by not only failing to

award OCKER his costs incurred by bringing the motion and his costs for the

subsequent mediation and arbitration, but also attempts to obligate OCKER to pay

a portion of EDDLEMAN's mediation and arbitration fees by directing that

OCKER pay 70% of the total costs of mediation and arbitration and EDDLEMAN

pay the remaining 30% of the costs (CR 262 ~).

Since the authority to award a portion of the costs of fees for mediation/

arbitration stems specifically from ,10 of the Mediated Settlement Agreement and

,10 conditions this award on prevailing in litigation brought to construe or enforce

the mediated settlement agreement, and since the record does not include any

instance in which EDDLEMAN has prevailed in litigation brought to construe or

enforce the mediated settlement agreement, the Arbitrator also exceeded his

authority as specifically delineated in the letter agreement to arbitrate of March 28,

17 2014 (CR 246-247) by ordering OCKER to pay any portion of the cost of

mediation and/or arbitration.

EDDLEMAN contends that OCKER can not be the prevailing party on the

issues pending in the 319th Judicial District Court until the Arbitrator awards him

his fees and costs. This argument is obviously premature since we know that the

Arbitrator did not even consider pending issues from the 13th Court of Appeals,

Appellate Cause Number 13-14-000125-CV, and it demonstrates a fundamental

misunderstanding of the Appellate Court' s role. The record is clear that OCKER

brought a Motion to Enforce Mediated Settlement Agreement (CR 98-101). The

record also reflects that OCKER was successful in obtaining an Order enforcing

the mediation/arbitration provisions of the Mediated Settlement Agreement per

Judge Alcala's Order of July 10, 2013, stemming from the June 25, 2013 hearing

in the 24th Judicial District Court (Addendum B). The Appellant further does not

contest the mandatory nature of the awarding of attorney' s fees, court costs,

expenses including the cost of mediation and/or arbitration in ,II O of the Mediated

Settlement Agreement, "if litigation is brought to construe or enforce the

agreement, the prevailing party shall be entitled to recover attorney's fees, as well

as court costs, and expenses, including the cost of mediation/ arbitration." (CR

13). Judge Alcala's decision to deny OCKER his attorney's fees, court costs, and

expenses including the cost of mediation/ arbitration is reversible not because he

18 did not award OCKER his damages, but rather is reversible because he did not

comply with the Arbitration agreement to refer this matter to the Arbitrator for

resolution (CR 13 iflO).

When OCKER filed his Notice of Appeal, challenging Judge Alcala's

November 12, 2013 Order denying him his attorney's fees, court costs, expenses

including cost of mediation/arbitration, he was aware of the parties' contractual

obligations to submit these issues to the Arbitrator and the current state of Texas

Law as determined by the Texas Supreme Court in the Milner case which denies

both the trial court and the appellate court jurisdiction to modify and interpret a

Mediated Settlement Agreement when it includes an arbitration clause. Milner v.

Milner, 361 S.W.3d 615 (Tex. 2012).

OCKER brought his appeal in Appellate Cause Number 13-14-000125-CV

not with the expectation that this Appellate Court would award him some amount

of attorney's fees, court costs, and expenses, but rather that this Appellate Court

would direct Judge Alcala to set aside his order denying OCKER's attorney's fees,

court costs, and expenses order EDDLEMAN to comply with her contractual

obligations to mediate and/or arbitrate this dispute as she had contractually

obligated herself to do on March 29, 2013, when she signed the MSA (CR 13).

When EDDLEMAN, acting through her attorney, contracted to arbitrate the issues

pending in the 13th Court of Appeals, the relief OCKER sought in this Appellate

19 Court had been in part achieved, EDDLEMAN was now gomg to arbitrate

OCKER's mandatory award of attorney's fees, resulting from OCKER's

successful prosecution of his Motion to Enforce the Mediated Settlement

Agreement in the 24th Judicial District Court (CR 98-101). This is precisely why

the proceedings in this Appellate Court, Cause Number 13-14-000125-CV, had

become moot. All that remained was for the Arbitrator to determine OCKER' s

attorney's fees, court costs, and expenses including the cost of

mediation/arbitration, which the Arbitrator concedes he did not do (CR 279 if2).

Presumably if the appeal had not been dismissed and this Appellate Court had

directed Judge Alcala to refer the issues of OCKER's fees to an Arbitrator, the

Court would also expect the Arbitrator to rule on those fees. In this case, the

Arbitrator refused to do so (CR 279 ~2).

PENDING ISSUES IN THE 319TH JUDICIAL DISTRICT COURT

On March 29, 2013, the parties resolved all issues pending in the family law

litigation, that being the case pending in the 24th Judicial District Court in Victoria

County, by Mediated Settlement Agreement (CR 9-13). Mediated Settlement

Agreements are legal contracts. Texas Civil Practice and Remedies Code

§154.07l(a); In the Matter of Marriage of Ames, 860 S.W.2d 590 (Tex Civ App-

Amarillo, 1993, no writ).

20 Among the things the parties contractually obligated themselves to do were

the following:

"a. To exchange their children at the Shell station on HWY 77, south of

Cameron, TX (CR 1O);

b. The parties agreed that the non financial parts of this agreement such as

(visitation schedules) shall commence immediately ... (CR 13 ,f7); and

c. The parties agreed if one or more disputes arise with regard to the

interpretation and/or performance of this agreement or any of it's provisions (pre-

decree), including drafting disputes, pre-decree enforcement matters, issues related

to omitted property, or the necessity and form of closing documents, the parties

agree to attempt to resolve the dispute by mediation with Michael P. O'Reilly, the

Mediator, who facilitated this settlement. If mediation fails, the parties agree to

enter into binding arbitration with Michael P. O'Reilly as the Arbitrator ... " (CR 13

,flO).

The above referenced mediation was conducted by Michael P. O'Reilly in

his office in Corpus Christi, Nueces County, Texas. Subsequently, the parties had

drafting disputes with regard to the Order coming out of the Mediated Settlement

Agreement (CR 260 ,f6). Rather then submit these drafting issues to mediation

and/or arbitration as EDDLEMAN was contractually obligated to do, she filed a

Motion to Enter Judgment Pursuant to Mediated Settlement Agreement (CR 91-

21 92). OCKER, in compliance with his contractual obligation under the MSA, filed

a Motion to Enforce Mediated Settlement Agreement (CR98-101). On June 25,

2013, Judge Alcala, sitting in the 24th Judicial District Court, found that the parties

had freely and voluntarily entered into the MSA (Addendum B, page 28, lines 11-

20). Judge Alcala subsequently ruled that the parties were contractually obligated

to return to mediation and if necessary arbitration by written order signed July 10,

2013 (Addendum C). EDDLEMAN refused to comply with this order.

Immediately after the hearing, Appellee's counsel contacted Appellant's

counsel's office and Mr. O'Reilly, and set mediation for August 27, 2013, which

mediation was cancelled by EDDLEMAN (CR 67). EDDLEMAN continued to

fail to comply with Judge Alcala' s order to participate in mediation/arbitration and

no mediation or arbitration had taken place by October 23, 2013, at which time,

Judge Alcala convened a lengthy hearing and resolved all the disputes with regards

to Entry of An Order in Suit to Modify Parent-Child Relationship stemming from

the Mediated Settlement Agreement (CR 204-233). This proceeding was

conducted in violation of the mandatory mediation/arbitration provisions of the

Mediated Settlement Agreement (CR 13), and an order was ultimately signed on

November 12, 2013. On August 26, 2013, when OCKER filed suit in the 319th

Judicial District Court, EDDLEMAN still had not complied with her obligation to

22 mediate, and the disputed issues had not been resolved by Judge Alcala, thus

EDDLEMAN was in breach of the contract.

In the Mediated Settlement Agreement, the parties agreed to exchange their

children at the Shell station on HWY 77, south of Cameron, Texas; however from

June 25, 2013 until October 23, 2013, EDDLEMAN refused to comply with this

contractual obligation which required OCKER to do additional travel to see his

children (CR 260 if9).

On August 26, 2013, OCKER filed an original petition in the 319th Judicial

District Court, sitting in Nueces County, alleging that EDDLEMAN had breached

the MSA contract by not resolving post mediation disputes by going back to

mediation and if necessary arbitration with Michael P. O'Reilly. OCKER further

alleged that EDDLEMAN had breached the contract by not exchanging the

children at the Shell station south of Cameron, Texas. OCKER alleged that he was

damaged by these breaches of contract, and requested his damages and attorney's

fees (CR 5-8); this was the basis of the breach of contract suit. EDDLEMAN

responded to this lawsuit with her First Amended Motion to Abate and in the

Alternative Motion to Transfer Venue, and Original Answer subject thereto (CR

102-107), and OCKER subsequently filed An Application to Compel Arbitration

and Motion to Abate/Stay Litigation Pending Arbitration (CR 192-198).

23 On January 2, 2014, Judge Stith in the 319th Judicial District Court,

considered EDDLEMAN's First Amended Motion to Abate and in the Alternative

Motion to Transfer Venue as well as OCKER's Application to Compel Arbitration

and Motion to Abate/Stay Litigation Pending Arbitration.

On March 10, 2014, Judge Stith granted OCKER's Motion to Compel

Arbitration and Motion to Abate/Stay Litigation Pending Arbitration and directed

the parties to mediate the outstanding issues with Michael P. O'Reilly at his offices

in Corpus Christi, Texas. Judge Stith also took under advisement, EDDLEMAN's

First Amended Motion to Abate and in the Alternative Motion to Transfer Venue

making no ruling on said motions until such time as the issues of the parties are

mediated and if necessary arbitrated by Michael P. O'Reilly (CR 238-239).

EDDLEMAN takes the position that Judge Stith's decision to take "under

advisement" her First Amended Motion to Abate and in the Alternative Motion to

Transfer Venue is dispositive of whether those issues were still pending before the

3 l 9th Judicial District Court at the time the parties arbitrated pursuant to their

contact of March 28, 2014 (CR 246-247). This ignores the fact that these pretrial

issues were resolved by the parties' agreement to arbitrate with Michael P.

O'Reilly.

In regards to the Arbitrator, he found that the pending issues before the 319th

Judicial District Court at the time of arbitration were:

24 a. whether there had been a breach of contact;

b. what, if any, were the damages;

c. should the case be abated; and

d. should the case be transferred to Victoria County (CR 27811).

Again items c. and d. are incorrect because the parties had agreed to arbitrate

with Michael P. O'Reilly. Likewise, Judge Stith in considering OCKER's Motion

to Vacate the Arbitration Award found that both EDDLEMAN' s pre-trial Motions

to Abate Proceeding in the 319th Judicial District Court and to Transfer Venue to

the 24th Judicial District Court in Victoria County had become moot and where not

issues for the Arbitrator to resolve pursuant to the Arbitration Agreement of March

28, 2014.

Appellant argues, without the benefit of authority, that when Judge Stith

took "under advisement" her First Amended Motion to Abate and in the

Alternative Motion to Transfer Venue, that these motions had somehow become

insolated from ever becoming moot and therefore would remain pending issues

before the 319th Judicial District Court no matter what else happened. A closer

examination demonstrates that this position is not well founded. In her Motion to

Abate, EDDLEMAN relies on Wyatt v. Shaw Plumbing Co., 760 S.W.2d, 245, 247

(Tex. 1988); Curtis v. Gibbs, 511 S.W.2d, 263,267 (Tex. 1974); Sweezy Const.

Inc. v. Murray, 915 S.W.2d 527, 531 (Tex. App.- Corpus Christi 1995, Orig.

25 Proceeding) to support her proposition that the 24th Judicial District Court in

Victoria County was the Court of dominant jurisdiction and that the 319th Judicial

District Court needed to abate it's proceedings and allow the 24th Judicial District

Court to resolve the issues in controversy (CR 104).

Judge Stith of the 319th Judicial District Court, finding that the issues in

controversy before him were subject to the mediation/arbitration clause in 110 of

the Mediated Settlement Agreement, abated and stayed his trial court proceedings

and directed the parties back to mediation, and if necessary, arbitration with

Michael P. O'Reilly. Since Judge Stith had abated the proceedings in his Court,

that portion of EDDLEMAN' s Motion Seeking to Abate Proceedings in the 319th

Judicial District Court had clearly become moot and did not require the

Arbitrator's consideration or resolution. What remained of EDDLEMAN's

Motion to Abate was her request that the underlying issues, being EDDLEMAN's

Breach of Contract and OCKER's damages, be turned over to the 24th Judicial

District Court, the Court that EDDLEMAN believed had dominant jurisdiction.

Judge Stith, however, had directed the parties to mediation and arbitration to

resolve the underlying issues, EDDLEMAN's breach of contract and OCKER's

damages resulting therefrom. The Arbitrator specifically finds that those are issues

that he is to resolve (CR 278 11.a. & b.). Thus the issues in controversy were not

going to be decided in the 319th Judicial District Court nor were they going to be

26 decided in the 24th Judicial District Court, they were going to be decided in

arbitration. The Motion to Abate had become in all things moot, and therefore was

no longer a currently pending issue in the 319th Judicial District Court to be

resolved by the Arbitrator.

If EDDLEMAN was dissatisfied with Judge Stith's decision not to rule on

her Motion to Abate prior to his abating the proceedings and directing the parties

to mediation and arbitration, EDDLEMAN had the option of filing a Writ of

Mandamus, which EDDLEMAN chose not to pursue; thus, she has waived her

right to complain about that issue. Kilroy v. Kilroy, 137 S.W.3d, 780, 784 (Tex.

App- Houston [1st Dist.] 2004, no writ).

Furthermore, if Judge Stith's Order directing the parties to mediate and

arbitrate was not sufficient to render EDDLEMAN's Pre-trial Motion to Abate

moot, then certainly her subsequent agreement to have the pending issues before

the 319th Judicial District Court be decided not in the 319th Judicial District Court

or in 24th Judicial District Court but rather by an Arbitrator, renders

EDDLEMAN's Pre-trial Motion moot. Kilroy v. Kilroy, 137 S.W.3d, 787, 789

(Tex. App- Houston [1st Dist.] 2004, no writ).

Notwithstanding the fact that EDDLEMAN's Motion to Abate was made

moot by the fact that the 319th Judicial District Court had abated its proceedings,

and the parties had been ordered to mediate and arbitrate their disputes rather than

27 have those disputes resolved in the 319th Judicial District Court or 24th Judicial

District Court, and that the parties had subsequently contracted to have their

controversies resolved by arbitration rather by court order out of the 319th or 24th

Judicial District Courts; the Arbitrator treated the Motion to Abate as if it were still

a pending issue in the 319th Judicial District Court (CR 278 ifl.c). The Arbitrator

therefore exceeded his contractual authority as that is defined by the letter

agreement to arbitrate which he identifies as the enabling document which limited

him to deciding only pending issues before the 3191h Judicial District Court (CR

246-247). The Supreme Court has stated that the authority of arbitrators is derived

from the arbitration agreement and is limited to a decision of the matters therein

either expressly or by necessary implication Pettus citing Gulf Oil Corp v

Guidry,327 S.W.2d 406, 408 (1959).

Not only did the Arbitrator consider EDDLEMAN's moot Pre-trial Motion

to Abate Proceedings in the 319th Judicial District Court, but he also granted same.

In doing so, the Arbitrator misapplied the standard for the granting of

EDDLEMAN's Pre-trial Motion to Abate Proceedings in the 319th Judicial District

Court. This paragraph is included not to divert attention from the fact that these

matters were outside the scope the arbitrator's authority and his contractual

jurisdiction, but rather to demonstrate the flagrant length to which the Arbitrator

went in disregarding the contract so he could dispense his own idea of justice.

28 Even the Appellant concedes that in order to sustain her Motion to Abate, she had

to establish:

1. the dominant suit was commenced first and citation had be served;

2. the dominant Court proceedings were still pending;

3. the cases involved the same parties; and

4. the cases involved the same issues in controversy (CR 104).

Nevertheless when asked to identify his legal conclusions for determining

that EDDLEMAN was entitled to have her Motion to Abate granted, the Arbitrator

simply concluded that the breach of contract suit was brought in the wrong Court

in violation of the agreement of the parties contained in the MSA previously

executed between them (CR 279 ,6). The Arbitrator has made none of the

requisite findings to support the granting of EDDLEMAN's Pre-trial Motion to

Abate.

The litigation in the 24th Judicial District Court was concluded on October

23, 2013, when Judge Alcala rendered judgment, the Order was signed on

November 12, 2013 (CR 232), furthermore the family law litigation in the 24th

Judicial District Court was not still pending on January 2, 2014 when

EDDLEMAN's Motion to Abate was first considered by Judge Stith in the 3191h

Judicial District Court, and it was not pending on March 10, 2014, when Judge

Stith signed his Order holding the Motion in Abeyance. In addition, it was not

29 pending on March 28, 2014, when the parties entered into the contract to arbitrate

outstanding issues in the 319th Judicial District Court, and it was not pending on

March 17, 2014, when the parties finally attempted to resolve their issues in

mediation with Michael P. O'Reilly, and it certainly wasn't pending on May 5,

2014, when the Arbitrator made his ruling; based on the foregoing it is clear that

the Arbitrator ignored one of the four prongs that EDDLEMAN concedes were

necessary for her Motion to Abate to be granted the dominant Court proceedings

was not pending.

In order to succeed on EDDLEMAN's Motion to Abate, EDDLEMAN also

had to establish that the same issues were in controversy in the two litigations. The

lawsuit brought in the 319th Judicial District Court was a breach of contract lawsuit

wherein OCKER alleges that EDDLEMAN violated her Mediated Settlement

Agreement contract in two ways. The lawsuit pending in the 24th Judicial District

Court was a Motion to Modify Parent-Child Relationship with regard to the rights

and duties of the parents of the minor children made the subject of that lawsuit.

The issues in controversy in the two litigations are not the same, and thus the

Arbitrator ignored 2 of the 4 prongs necessary for EDDLEMAN to have her

Motion to Abate granted. In the event there is any lingering ambiguity as to

whether or not the two litigations had any overlap concerning the matters in

controversy, when Judge Alcala sitting in the 24th Judicial District Court rendered a

30 final judgment on that litigation on October 23, 2013, resolving all issues in

controversy in the 24th Judicial District Court save and accept for OCKER's

unrelated Motion for Enforcement by Contempt for Sheri Eddleman's violation of

previous Temporary Orders (CR 232), his order did not resolve any issues pending

in the 3 l 9th Judicial District Court. Appellant did not take this position in the 319th

Judicial District Court nor has she argued before this Court that Judge Alcala's 1 order of October 23r\ 2013, disposed of any of the issues pending in the 319 h

Judicial District Court.

The Arbitrator identifies in his finding that EDDLEMAN's Motion to Abate

as part of his basis for his awarding attorney's fees to EDDLEMAN (CR 279 ,r4).

The Arbitrator awarded $6,012.50 in attorney's fees, but did not distinguish how

much of that fee was incurred in pursuing her Motion to Abate, and thus the award

should not be confirmed.

EDDLEMAN's Pre-trial Venue Motion

As an alternative to her Motion to Abate, EDDLEMAN also filed a Motion

to Transfer Venue. OCKER filed his Breach of Contract Suit in Nueces County,

alleging that venue was proper there because the underlining contract that had been

violated was negotiated and executed in Nueces County, Texas (CR 5-6).

EDDLEMAN alleges that the Mediated Settlement Agreement included a

provision saying that it was performable in Victoria County, Texas, and thus

31 argued that this provision controlled venue for any disputes with regards to the

Mediated Settlement Agreement, presumably including suits for Breach of

Contract. Black's Law Dictionary Vol. 5 defines venue as, "the particular county

or geographical area in which a Court with jurisdiction may hear and determine a

case. Venue deals with locality of suit, that is with questions of which Court or

Courts of those that possess adequate personnel and subject matter jurisdiction may

hear this specific suit in question." EDDLEMAN's Motion to Transfer, like her

Motion to Abate, seeks to have a Court in Victoria County, not specifically the 24th

Judicial District Court, resolve the Breach of Contract lawsuit rather than having

the 319th Judi~ial District Court in Nueces County resolve the Breach of Contract

lawsuit. On January 2, 2014, Judge Stith sitting in the 319th Judicial District Court

declined to rule on EDDLEMAN' s Motion to Transfer Venue but rather granted

OCKER's Application to Compel Arbitration and Motion to Abate/Stay Litigation

Pending Arbitration (CR 238-239). Based on this ruling, neither the 319th Judicial

District Court nor a Court of competent jurisdiction in Victoria County was going

to resolve the Breach of Contract issues. Those issues were going to be resolved

either in mediation with Michael P. O'Reilly or if that was not successful, by Mr.

O'Reilly serving as an Arbitrator. EDDLEMAN had the option at that time to seek

a Mandamus, in an effort to compel Judge Stith to rule on her Motion to Transfer

Venue in an effort to have the case heard in a Court in Victoria County, Texas

32 rather than Nueces County, Texas. EDDLEMAN chose not to do so. By choosing

not to file her Writ of Mandamus, EDDLEMAN waived any complaints she might

have had about Judge Stith abating his proceedings and directing the parties to

mediation and if necessary arbitration, and allowed the issue of venue to become

moot. Kilroy v. Kilroy, 137 S.W.3d, 780 (Tex. App- Houston [1st Dist.] 2004, no

writ).

If there was any question as to whether or not Judge Stith's order directing

the parties back to mediation and arbitration was dispositive of the Motion to

Transfer Venue, then we should look at the parties' agreement of March 28, 2014.

By agreeing to arbitrate the pending issues in the 319th Judicial District Court,

EDDLEMAN contractually agreed to not have the 319th Judicial District Court

resolve the Breach of Contract issues and she contractually agreed not to have any

Court of competent jurisdiction in Victoria County resolve the Breach of Contract

issues pending in the 319th Judicial District Court. She contracted to have those

issues in controversy resolved by an Arbitrator in Nueces County, Texas, and

expressly waived any transfer to any Court. EDDLEMAN waived her Motion to

Transfer Venue when she acquiesced in Judge Stith's Order Staying Proceedings in

his Court and directing the parties to mediation and arbitration without first ruling

on her Motion to Transfer Venue. EDDLEMAN then confirmed her decision not

to pursue her Motion to Transfer Venue to allow a Court in Victoria County to

33 resolve the pending Breach of Contract cause of action between the parties when

she contractually agreed to have those issues resolved by Michael P. O'Reilly in

arbitration.

The Arbitrator's authority to resolve disputes extended only to pending

issues in the 319th Judicial District Court (CR 246-247). The Arbitrator

acknowledges that he considered EDDLEMAN's Pre-trial Motion to Transfer

Venue to be among the issues that he resolved (CR 278 11.d). Thus, the Arbitrator

exceeded his authority by ruling on an issue that which he had no contractual

authority to consider. The Arbitrator not only considered the Motion to Transfer

Venue but he granted same and used the finding as a basis for justifying the award

of attorney's fees to EDDLEMAN (CR 27914). This was error outside the scope

of the arbitrator's authority.

The Arbitrator's decision to grant the Motion to Transfer venue under the

circumstances as they existed at the time of this arbitration, as with his ruling on

the Motion to Abate, demonstrates the length to which the Arbitrator was willing

to go to disregarded his contractual authority and impose his own idea of justice.

On March 28, 2014, when the parties contractually obligated themselves to

arbitrate the outstanding issues before the 13th Court of Appeals and the 319th

Judicial District Court with Mr. O'Reilly in Nueces County, Texas, the controlling

venue statute became Civil Practice and Remedies Code § 171.096(c), fixing venue

34 in the county where the arbitration takes places. This supersedes any previous

contractual obligation to assign venue to Victoria County. In Re. Lopez, 372

S.W.3d, 174 (Tex. 2012). As pointed out by this Appellate Court in it's

Memoranda Opinion Dismissing OCKER's previous appeal, this Court, quoting

it's opinion in, In re Burton, McCumber & Cortez, L.L.P .• 115 S.W.3d 235, 237

(Tex. App.-Corpus Christi 2003, orig. proceeding), "[W]here a party

contractually agrees to arbitrate a dispute, it waives its right to recourse in the

courts.". The only remaining issues would be a potential Motion to Vacate, or

Motion to Confirm Arbitration Ruling which should take place in the County

where the arbitration took place, as has happened in this case. The Court should

notice that EDDLEMAN did not file a Motion to Transfer Venue along with her

Motion to Confirm the Arbitrator's Ruling seeking to have these motions decided

by a Court in Victoria County (CR 365).

The Arbitrator does not distinguish in his award of attorney's fees, how

much of the attorney's fees he awarded are attributable to this Motion to Transfer

Venue, so the entire award should be set aside. In response to OCKER's Request

for Additional Findings and Facts and Conclusions of Law, Request No. 3. asking

the Arbitrator to identify the legal basis upon which he justifies his award of

attorney's fees and cost to Respondent, SHERI EDDLEMAN (CR 274 ,3), the

Arbitrator specifically identifies 110 of the Mediated Settlement Agreement.

35 Specifically, he said his authority stems from the following language, "if litigation

is brought to construe or enforce this agreement, the prevailing party shall be

entitled to recover attorney's fees, court costs, and expenses including the cost of

mediation/arbitration." (CR 279 ,I3) The record reflects two motions seeking to

enforce or to construe the Mediated Settlement Agreement, those being OCKER's

Motion to Enforce Mediated Settlement Agreement brought in the 24th Judicial

District Court (CR 98-101) which resulted in Judge Alcala's order of July 10,

2013, directing the parties back to mediation and arbitration (Addendum C), and

OCKER's Application to Compel Arbitration and Motion to Abate/Stay Litigation

Pending Arbitration (CR 192-198) filed in the 319th Judicial District Court

resulting in Judge Stith's order directing the parties back to mediation and if

necessary arbitration heard on January 2, 2014, and signed on March 10, 2014 (CR

238-239). The Arbitrator has justified his award of fees and presumably his award

of disproportionate costs of litigation and arbitration based on his granting of

EDDLEMAN's two moot Pre-trial Motions, neither of which was brought to

construe or enforce the Mediated Settlement Agreement but rather were motions

designed to move the Breach of Contract lawsuit from Nueces County to Victoria

County. Even the Breach of Contract lawsuit was not a lawsuit brought to construe

or enforce the Mediated Settlement Agreement; it was a lawsuit seeking damages

for a breach of the Mediated Settlement Agreement. EDDLEMAN's pleadings did

36 not allege that the Mediated Settlement Agreement was ambiguous in any way, or

that it required any clarification by the Trial Court, nor did it seek specific

performance of the Mediated Settlement Agreement (CR 5-8). Furthermore

EDDLEMAN, in her pleadings, did not allege that the contract needed clarification

nor did she seek specific performance of the contract (CR 102-107). Thus, none of

the motions upon which the Arbitrator found that EDDLEMAN prevailed support

the Arbitrator's award of attorney's fees to EDDLEMAN based upon the authority

on which he relied.

BREACH OF CONTRACT

On August 26, 2013, OCKER filed his suit for Breach of Contract in the

319th Judicial District Court sitting in Nueces County, Texas (CR 5-8). OCKER

alleged that the Mediated Settlement Agreement of March 29, 2013, was a contract

and that EDDLEMAN had breached this contract in two respects.

Paragraph 10 of the Mediated Settlement Agreement requires the parties to

mediate with Michael P. O'Reilly and if necessary arbitrate with Michael P.

O'Reilly if one or more disputes arise with regards to the interpretation and/or

performance of this agreement or any of its provisions (pre-decree), including

drafting disputes, pre-decree enforcement matters, issues relating to omitted

property, or the necessity and form of closing documents (CR 13 iflO). OCKER

alleges that pre-decree disputes arose between the parties that would trigger this

37 provision of the parties' contract. EDDLEMAN concedes that disputes did arise

(CR 20 ,IlO) and the Arbitrator found that pre-decree disputes arose (CR 260 ,I6).

EDDLEMAN concedes that rather than complying with her contractual obligations

under the Mediated Settlement Agreement and submitting those disputed issues to

the Mediator, Michael P. O'Reilly, for potential resolution and if necessary, back

to Mr. O'Reilly for arbitration, she filed a Motion to Enter Judgment pursuant to

the Mediated Settlement Agreement (CR20 ,IlO; CR 91-92), asking Judge Alcala

to enter judgment pursuant to the MSA, that forced OCKER to file his Motion to

Enforce ,IlO of Mediated Settlement Agreement (CR 98-101). These motions were

heard on June 25, 2013, with EDDLEMAN being ordered to submit to mediation

and if necessary arbitration (Addendum C). Despite Judge Alcala' s order of July

10, 2013, directing EDDLEMAN back to mediation/arbitration, she continued to

refuse and at the time OCKER filed his Motion for Breach of Contract on August

26, 2013, no mediation had taken place. In fact, EDDLEMAN did not actually

participate in mediation until after OCKER obtained an order from Judge Stith of

the 319th Judicial District Court on March 10, 2014, (CR 238-239) granting his

Application to Compel Arbitration and Motion to Abate/Stay Litigation Pending

Arbitration (CR 192-198).

The Arbitrator found that pursuant to the March 28, 2014, the agreement to

arbitrate, he was required to resolve all currently pending issues in the 319th

38 Judicial District Court, and included among those issues was whether there had

been a breach of contract (CR 27811.a.) OCKER had alleged two basis for Breach

of Contract, one of those being EDDLEMAN's failure to comply with 110 of the

Mediated Settlement Agreement to return to mediation and if necessary arbitration

to resolve pre-decree disputes. The uncontroverted evidence in the record,

demonstrates that EDDLEMAN failed and refused to comply with this provision

and, in fact, affirmatively attempted to circumvent it by filing her Motion to Enter

Judgment pursuant to the Mediated Settlement Agreement which she now disputes

existed. Despite this contractual obligation to resolve all currently pending issues

in the 319th Judicial District Court, the Arbitrator does not address this Breach of

Contract issue, except to say, the breach of contract matter currently pending in

Cause No. 2013-DCV-40182-G, in the 319th Judicial District Court should be

dismissed (CR 263 1L). The Arbitrator does not give any reason for ordering the Breach of Contract suit dismissed. The Arbitrator similarly held that the appeal

pending in the 13th Court of Appeals in Cause No. 13-14-00125-CV, should be

dismissed (CR 263 1M); the Arbitrator again provides no explanation or further

discussion as to how he arrived at this conclusion. By making these unexplained

conclusions, he does appear to be avoiding his contractual obligation to resolve all

pending issues in the 13th Court of Appeals and in the 319th Judicial District Court.

39 As discussed earlier in this brief, the Arbitrator does admit in his Addendum

to the First Amended Arbitration Award that he decided not to address the issues

currently pending in the 13th Court of Appeals because he decided those issues

were moot (CR 27912). Despite having said only that the breach of contract suit

should be dismissed in his First Amended Arbitration A ward in his Addendum

filed in response to Request for Findings and Facts and Conclusions of Law, the

Arbitrator found EDDLEMAN prevailed in the suit on a contract brought in the

3 l 9th Judicial District Court (CR 279 110). The Arbitrator then goes on to explain

that EDDLEMAN complied with the terms and conditions of the Mediated

Settlement Agreement until ordered otherwise by a District Judge. This is an

apparent reference to the second breach of contract allegation to exchange the

children at the Shell Station on HWY 77, south of Cameron, Texas (CR 280111).

The Arbitrator completely failed to write on the first alleged breach,

EDDLEMAN's failure to comply with 110 of the Mediated Settlement Agreement

to submit pre-decree disputes to him for mediation and arbitration.

EDDLEMAN' s breach of her contract with OCKER is apparent from the record,

thus, in order to dispense his own idea of justice, it was necessary for the Arbitrator

to disregard this portion of his contractual obligations.

OCKER alleges that EDDLEMAN breached the Mediated Settlement

Agreement /Contract by failing to exchange the children at the Shell Station on

40 HWY 77, south of Cameron, Texas (CR7-8). The Mediated Settlement Agreement

of March 29, 2013, required the parties to exchange their children at the Shell

Station on HWY 77, south of Cameron, TX (CR 10). The Mediated Settlement

Agreement also provided that the non-financial parts of the agreement (such as

visitation schedules) shall commence immediately, ... (CR 13 if7) The Arbitrator

further concludes that the Mediated Settlement Agreement on March 29, 2013, was

binding and irrevocable pursuant to its terms and also pursuant to §6.602 &

153.0071 of Texas Family Code (CR 262 ifA). The Arbitrator further finds that

EDDLEMAN did comply with her contractual obligations to exchange the children

at the Shell Station on HWY 77, south of Cameron, Texas, until the hearing of

June 25, 2013 (CR 262 ,rH). The Arbitrator then finds that EDDLEMAN

discontinued exchanging their children at the Shell Station on HWY 77, south of

Cameron, Texas, as required by her binding and irrevocable Mediated Settlement

Agreement in order to obey an alleged Order from the sitting Judge in the Victoria

case (CR 262 ,rI).

The hearing of June 25, 2013, in the 24th Judicial District Court was the

hearing on EDDLEMAN's Motion to Enter Judgment pursuant to a Mediated

Settlement Agreement (CR 91-92) and OCKER's Motion to Enforce Mediated

Settlement Agreement (CR 98-101). This is the first hearing where EDDLEMAN

was ordered to submit to mediation for the pre-decree disputes from the Mediated

41 Settlement Agreement of March 29, 2013. At the end of this hearing, the Judge

inquired at to whether or not the orders in effect are the last orders of the Court and

EDDLEMAN acting through her attorney of record, LYNN KNAUPP, violated the

binding and irrevocable terms of EDDLEMAN's MSA by telling the Judge that

that in fact was correct. OCKER in compliance with his contractual requirements

in the Mediated Settlement Agreement represented to the Court that he was not

correct but that there was an agreement despite there still being pre-decree disputes

that need to be resolved (Addendum A, page 29, line 24 through page 30, line 12).

There are no pleadings seeking to set aside that portion of the Mediated Settlement

Agreement requiring the parties to exchange the children at the Shell Station on

HWY 77, south of Cameron, Texas. The Judge never represents that he is entering

an order on his own motion, and in fact, never renders on an order to set aside that

portion of the Mediated Settlement Agreement providing for the exchange of the

children.

If in fact, the Judge was attempting to set aside that portion of the Mediated

Settlement Agreement concerning the exchange of their children at the Shell

Station on HWY 77, south of Cameron, Texas, he did not have any jurisdiction to

do. In Re. Stephanie Lee, 411 S.W.3d. 445, 453 (Tex. 2013) "thus, it is clear that

the MSA statute was enacted with the intent that, when parents have agreed that a

particular arrangement is in their child's best interest and have reduced that

42 agreement to a writing complying with§ 153.0071, (which the Mediated Settlement

Agreement in question does) Court's must defer to them and their agreement."

Thus to the extent there is an Order purporting to excuse EDDLEMAN from her

contractual obligations, it is a void order.

At 6:48 p.m. on June 25, 2013 , Judge Alcala e-mailed Appellee's counsel

with a copy to Appellant's counsel, instructing Appellee's counsel to "prepare an

order reflecting the Court's action today" a true and correct copy of that email is

attached as Addendum B. No where in that e-mail does Judge Alcala instruct

counsel to prepare an Order setting aside any provision of the binding and

irrevocable Mediated Settlement Agreement concerning the exchange of the

children at the Shell Station on HWY 77, south of Cameron, TX. The record

includes no inquiry or complaint from counsel for EDDLEMAN that the order was

not going to include any provision setting aside the binding and irrevocable

obligation for EDDLEMAN to exchange the children at the Shell Station on HWY

77, south of Cameron, TX.

In compliance with Judge Alcala's instructions, an Order was prepared and

circulated for approval by counsel for EDDLEMAN (Addendum C). This order

included no provisions for setting aside the binding and irrevocable obligation for

the parties to exchange their children at the Shell Station on HWY 77, south of

43 Cameron, TX; it was approved by counsel for EDDLEMAN and signed by Judge

Alcala on July 10, 2013.

The Arbitrator has found that EDDLEMAN violated the binding and

irrevocable terms of the Mediated Settlement Agreement by not exchanging the

children at the Shell Station on HWY 77, south of Cameron, TX, as alleged by

OCKER in his suit for Breach of Contract (CR 280 ifl l). There was in fact no

order releasing EDDLEMAN from her binding and irrevocable obligations under

the Mediated Settlement Agreement, but in order for the Arbitrator to dispense his

own idea of justice, he had to pretend there was an Order that in some matter

justified EDDLEMAN's breach of her contractual obligations under the Mediated

Settlement Agreement.

In order for a party to be awarded their attorney's fees in a Breach of

Contract suit, they have to be the prevailing party. The Arbitrator has chosen not

to address the first of the two alleged breaches of contract, that being

EDDLEMAN' s failure to submit pre-decree disputes to mediation and arbitration.

The uncontroverted record reflects that EDDLEMAN did in fact fail to comply

with this requirement until not one but two District Judges ordered her to comply.

The record reflects a strong implication that if the Arbitrator had complied with his

contractual obligation to consider this alleged breach of contract, OCKER would

have been considered the prevailing party, and thus, entitled to his attorney's fees.

44 We will not know for certain however, until after the Arbitrator complies with

Judge Stith's order vacating his arbitration ruling, directing him to re-arbitrate in

conformity with the Judge's ruling.

The Arbitrator has found that EDDLEMAN has failed to comply with her

binding and irrevocable obligation to exchange the children at the Shell Station on

HWY 77, south of Cameron, TX, but has excused that behavior based upon a

phantom order that no Court had jurisdiction to enter, upon which no Judge

rendered, and which was not included in the Judge's written Order (Addendum C).

Even if there was an Order, it would constitute on avoidance of EDDLEMAN's

contractual obligations and therefore would be an affirmative defense which was

not plead by EDDLEMAN and therefore was not a pending issue before the 319th

Judicial District Court and not a proper issue for the Arbitrator to consider. Texas

Rule of Civil Procedure 94; Texas Beef Cattle Company v. Green, 921 S.W.2d.

203, 212 (Texas 1996) "An affirmative defense ... is one of confession and

avoidance. An affirmative defense does not seek to defend merely by denying the

Plaintiffs claim but rather seeks to establish an independent reason why the

Plaintiff should not recover."

CONCLUSION

In conclusion, the Arbitrator has exceeded his authority by disregarding the

contract and has dispensed his own idea of justice in each instance. The Arbitrator

45 was charged with the responsibility of resolving all outstanding issues pending in

the 13th Court of Appeals and in the 319th Judicial District Court. The issues

pending in the 13th Court of Appeals was OCKER's appeal of Judge Alcala's

refusal to award him his attorney's fees, as well as court costs, and expenses

including the cost of mediation and arbitration or submitting same to the

Mediator/Arbitrator for resolution, resulting from his successful prosecution of his

Motion to Enforce Mediated Settlement Agreement in the 24th Judicial District

Court. Despite EDDLEMAN's admission to the 13th Court of Appeals that those

were issues to be resolved by the Arbitrator in this Court's judicial finding that it

could not resolve those issues because those were issues to be resolved by the

Arbitrator, the Arbitrator without explanation, decided that the issues were moot

and he did not have to address them. Thus, the Arbitrator failed to comply with his

contractual obligations to arbitrate the pending issues from the 13th Court of

Appeals, by in fact, not addressing them.

The Arbitrator also decided, without explanation, to address EDDLEMAN's

Pre-trial motions seeking a Motion to Abate and a Motion to Transfer Venue when

these matters were in fact moot because of the Honorable Judge Stith' s Order to

arbitrate and the parties' subsequent agreement to arbitrate.

The Arbitrator also, without explanation, chose not to address one of the two

pending breach of contract issues pending in the 319th Judicial District Court, that

46 being EDDLEMAN' s failure to submit pre-decree disputes to mediation and

arbitration in violation of his contractual duty to resolve all outstanding issues in

the 3 l 9th Judicial District Court.

Finally, the Arbitrator chose to resolve the second breach of contract issue

by considering an unplead affirmative defense, that being a phantom Order from

the 24th Judicial District Court which EDDLEMAN asserts relieved her from

having to perform the binding and irrevocable provisions of the MSA requiring her

to exchange the children at the Shell Station on HWY 77, south of Cameron, TX.

This defense is clearly a plea in avoidance and therefore an affirmative defense that

was not plead as required by TRCP 94. The Arbitrator's consideration of this

unplead affirmative defense was not an issue in dispute before the 319th Judicial

District Court and was thus a violation of his contractual obligations to limit his

authority to these issues pending in part, before the 319th Judicial District Court.

The Arbitrator has consistently failed to consider issues of which he was

contractually obligated to resolve and added issues for which he did not have any

contractual authority to consider, this combined with his consistent failure to

properly apply Texas Law to the facts before him, make it clear that the Arbitrator

disregarded his authority as granted by the contract (CR 246-247), and dispensed

his own idea of justice and Judge Stith's refusal to confirm the Arbitrator's First

Amended Arbitration Award is well founded and should be sustained.

47 PRAYER FOR RELIEF

WHEREFORE, Appellee respectfully requests that this Honorable Appellate

Court deny Appellant SHERI EDDLEMAN's Appeal in its entirety, and overrule

Appellant's Issues Presented, sustaining and affirming the judgment of the Trial

Court. Appellee also respectfully asks that all costs be taxed against Appellant.

Respectfully submitted,

William J. Kelly 1402 N Chaparral Corpus Christi, Texas 78401 Tel: (361) 888-6600 Fax: (361) 887-7732

By: t William J. Kelly State Bar No. 11240500 Attorney for MATTHEW J. OCKER

48 CERTIFICATE OF SERVICE

In accordance with the Texas Rules of Appellate Procedure I certify that a copy of this First Amended Brief of Appellee, Matthew J. Ocker was served on Sheri Eddleman, Defendant and Appellant through counsels of record, David Griffin, Robert E. McKnight, Jr., Lynn Knaupp, 203 Liberty St., Victoria, TX 77901 by telecopier on October 5, 2015.

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this First Amended Brief of Appellee, Matthew J. Ocker contains 10,969 words. This is a computer- generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document. '\

William J. Kelly

49 APPENDIX

TAB

1. Transcript of Motion Hearing dated June 25, 2013.

2. Email from Judge Alcala dated June 25, 2013, requesting William J. Kelly to

prepare an order reflecting that the pending motions to enter and enforce are

abated pending resolution by mediation or arbitration.

3. Order Granting Motion to Enforce Mediated Settlement Agreement dated

July 10, 2013.

50 ,,...... ( '

... -:. :-:..

.~ ·-· .\,. ....

1 REPORTER'S RECORD 2 VOLUME 1 OF 1 VOLUMES 3 TRIAL COURT CAUSE NO. 09-1-68095-A 4 5 IN THE INTEREST OF IN THE DISTRICT COURT 6 HAYDEN NICOLE OCKER and . 24TH JUDICIAL DISTRICT 7 MADISON HALEY OCKER 8 CHILDREN VICTORIA COUNTY, TEXAS 9 10 MOTION HEARING 11 12 On the 25TH day of June, 2013, the f ollowing .··-----.. 13 proceedings came on to be held in the above-titled and 14 numbered cause oefore the Honorable JUDGE DICK ALCALA, 15 Judge Presiding, held in Victoria, Victoria County, 16 Texas. 17 Proceedings reported by computerized stenotype 18 machine. 19 20 21 22 23 24 25 ORIGINAL ....

Kimberly K. Koetter District Court Alternate Reporter 361.573.0263

APPENDIX A . ,... ,· r · 28 Motion Hearing June 25, 2013

1 arbitration that is inappropriate and quite honestly 2 I find it offensive. 3 There is provisions in the order and 4 I have asked for it in my motion that my client be 5 reimbursed for his attorney fees and his cost and the

6 cost of the mediation and the arbitration and we're 7 asking the Court to grant that and I'm prepared to put

8 on testimony with regards to how much my client has 9 incurred in fees to defend -- to bring this motion and

10 to assert -- to enforce the agreement.

11 THE COURT: Okay. Well the parties have 12 entered into an agreement here, and I'm just going to .-. 13 say they entered into it apparently freely. The 14 signatures are on there. There's no indication 15 otherwise and page five is part of that agreement that 16 if there are disputes arising in regard to the 17 interpretation or the drafting and that they resolve it 18 by going back to the mediator and as the mediator and 19 then if that fails for him as the arbitrator. And 20 that's going to be my finding although I find that 21 these -- there really is no -- I agree with Ms. Knaupp. 22 I deny his motion for attorney fees. I . think he's 23 responsible for this, but the parties entered into this

24 agreement and they're going to have to go back to the .-. •, 25 mediator and arbitrator, but he's not going to get his

Kimberly K. Koetter District Court Alternate Reporter 361.573.0263 ,..--\ ( I 29 Motion Hearing June 25, 2013

~----. 1 attorney fees because he's-- I find that he's 2 responsible for getting to this point whe~ it should be 3 resolved. So that's going to be my finding. 4 MS. KNAUPP: Will you assess the initial 5 cost deposit for the mediation and the arbitration 6 against Mr . Ocker? 7 THE COURT: You didn't plead it. You 8 didn't plead for it like you said. So -- 9 MS . KNAUPP: The cost? I mean there's no 10 pleadings anywhere for the cost of the mediation or the 11 arbitration. It's not addressed in the agreement on who 12 would pay the cost so -- .•--....._ 13 MR. KELLY: I have pleadings for that, 14 your Honor, based on the statute and the agreement . 15 THE COURT : No. I 'm not going to -- I'm 16 not going to do that -- 17 MS. KNAUPP: Okay . 18 THE COURT: unless there's clearly 19 pleadings asking for that. 20 Anything further? 21 MR. KELLY: No, your Honor. 22 MS. KNAUPP: No, your Honor .

23 Than k you .

24 THE COURT: Okay. Now, so the orders are

.··-., 25 in effect are the last orders of the Court, correct?

Kimberly K. Koetter District Court Alternate Reporter 361.573 .02 63

- -- - -· ·- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - { ,,.-. \ 30 Motions Hearing June 25, 2013 .-. :"" ·..

1 MS. KNAUPP: Correct. Those a~e what's in 2 effect. 3 MR. KELLY : Your Honor, the mediated 4 settlement agreement contemplates that the agreement of 5 the parties is now in effect. 6 THE COURT: No . There's no agreement, 7 right? There is nd agreement by your own words so -- 8 MR. KELLY: There are disputes, but there 9 is an agreement. 10 THE COURT: No. No. There is no 11 ag.reement. If there are disputes, there's no agr eement . 12 We're not going to take it that far. 13 Okay. 14 Anything further? 15 MR. KELLY : No, your Honor. 16 MS. KNAUPP: Thank you. 17 THE COURT: We're adjourned. 18 (Hearing conclud ed . ) 19 20 21 22 23 24 25

Kimberly K. Koetter District Court Alternate Reporter 361.573 . 0 2 63 31 Motions Hearing June 25, 2013

1 STATE OF TEXAS 2 COUNTY OF VICTORIA 3 4 I, Kimberly K. Koetter, Official Court Reporter in 5 and for the Judicial District Courts of Victoria, State 6 of Texas, do hereby certify that the above and foregoing 7 contains a true and correct transcription of all 8 portions of evidence and other proceedings requested in 9 writing by counsel for the parties to be included in 10 this volume of the Reporter's Record in the .above-styled

11 and numbered cause, all of which occurred in open court 12 or in chambers and were reported by me. .~ a. 13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits, 15 if any, offered by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $155.00 and was

18 paid/will be paid by Matt Ocker. 19 WITNESS MY OFFICIAL HAND on this, the 8th day of

20 October, 2013. 21 .-K~ ck'. } < ~ K ~ K . Koetter, CSR, RPR 22 Texas CSR 7582, RPR #7980; Expire 12/31/2014 Official Reporter-Victoria County 23 District Court Alternate Victoria County, Texas 24 115 N. Bridge Street, Room 202 Victoria, Texas 77901 .·.,,,,..........·· 25 Telephone: 361.573.0263

Kimberly K. Koetter District Court Alternate Reporter 361. 573. 0263 .. I ·"-.. ~ ~-·. (

.Bill Kelly -..,. 1rom: Dick Alcala · Sent Tuesday, June 25, 2013 6:48 PM To: Lynn A Knaupp; Cc: Emily Means Subject: Order - Hrg 06/25/13

CollllSel:

Mr. Kelly please prepare an order reflecting the Co~s action today. The order should reflect that the pending motions to enter and enforce are abated pending resolution by mediation or arbitration.- Please circulate to Ms. Knaupp for form approval. Dick Alcala Senior District Judge 13315 VistaAnoyo San Antonio, Texas 78216 (210) 387-5769 (210) 617-7683/ax dalcala49@earthlinknet

}ent ~om my iPad

APPENDIX B ....... ,.,--, ·-, ,,.-. : "" -.• ! ( :

IN THE INTEREST OF - .o. 09.1..68095-A § IN nm DISTRICT COURT § BA"i'DEN NICOLE OCKER AND § 24TH JUDICIAL DISTlUCl' MADISON HALEY OCXmR § § CHILDREN § VICTOR:IA. COUNTY, TEXAS

Oro>:ER.GRANTING MOTION TO ENFORCE MEDIATED SE'ITLEMENT AGREEMENT On the 2511i dq of J'une 2013 oamo on to be considered MATTHEW J. OCKEl1s 7

Motion to E-nforce Mediated Sm.tJement Agl'eement ancl SHERI EDDLEMAN's ¥otioa It> Enter 1udsm~nt pur11uant to Mediated Settlement Agreement and SHBlU JIDDLBMAN'soral Motion for l3ntry of Attorney's Fees end to Deposit Couts ot Mediation. ·Movin~ MATTHEW J. OCKER, appeated In person aml througb his attorney of reoord7 Willian 1. Ko11y, Responden~ SHBRI EDDLEMAN, appe!ll'ed In person and througl1 her attorney of record, Lynn Koaupp. Tfn, court, after revlowlng 'the plcMfnsa and listening to argument of couneot, finda l at the Motfon to Enforce Mediated Settlement Agreement is at,ared.pendtng·medlatlon an~ If ,,, I

nocos!aey, arbitration and the MotJon to Enter Judgment pul'S\lant to Mediated Settlernmt . Agreement la abated. The patties aro ORDERED to c9mpJy wlth the terms and oondltlons of tho Medi~ Settlement "greement and mediate their disputes wlth M{ohacl P. O'Reilly, lT IS FUR'lllm. OJroBRlm that if the mediation Is Ul\soccessf\11, tho parties are t\lrther ORDBRBD to atbltra.~e tho remaining dleputea with Michael P, O'J.loUJy. SHBRI BDDLBMAN, aottng through her attorney, made an oxa1 Motion for Intor!m Attotney•41 Fees and Cost Depotft, whloh motion ls lJl3NlED, The Court tin~ that Faragraph 10 of the Mediaied Settlement Agrclml6nt lnoluded a \ ..- '-- provision tliat, "ff litiption is brought to construe or enforce this agreement, the i,revaDiig

APPENDIX C ·;·· .. .·~

,,... party shall ~e entitled to reeover attornoy'e foo9, as welt RS court costs and expeiue,, including the cost of the medlatlon/arlJitmtton,w MATIFmW J, OCKER requested that~e Court award him hls attornoyta fees and court costs including the oost Qf . m.cdiation/a.rbitrat1on pursuant to the torme and condtttons of the Mediated Settlemnt . . Agreemont. Said roqneat l1i abated pending mediation and, Ifnecessary, erb~:tlon.

1lldiot111Jy pt'Onounoed on 1UM 2~, 2013 and ministerially signed ou • -::{, _ 0 I J01lt

J'UD.OE PRBSJDJNO

APFROVBD AS TO FORM ONt.Y: ~llllam J'. Kelly 1402, N Chaplll'rAt Corpus Chl'Jsti. Texas 78401 Tel: (361) 888-6600 Fax! (361 887-77.SZ

By·~·~~~==~4'_:_f....!:::.:=~ liom.1. Kelly.-Atto State :Sar No. 1124050

LYNNKNAUPP Marekt Griffin'& Knaupp 203 N. Liberty Street P.O. Box23.29 Vlotorla, TexM '1790l Telep~onei 361·513·5500 Telecopler: 36l·S73w5040

~~a~~, Stuto Bar No.: l l 587900

..__

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