Stacey Hammer v. University Federal Credit Union Wayne Morgan A/K/A Preferred Properties A/K/A the Morgan Children, Inc. Venessa Zapata Peters Kerry L. Haliburton And El Campo Real Estate, LP A/K/A Goode Casseb Jones Riklin Choate & Watson

• Court: Court of Appeals of Texas
• Decided: June 17, 2016
• Docket: 03-16-00262-CV
• Status: Published

Opinion

ACCEPTED 03-16-00262-CV 11211910 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/17/2016 3:55:47 PM JEFFREY D. KYLE CLERK

No. 03-16-00262-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS In the Court of Appeals 6/17/2016 3:55:47 PM For the Third Judicial District JEFFREY D. KYLE Sitting at Austin, Texas Clerk

Stacey Hammer

Appellant v.

University Federal Credit Union; Wayne Morgan a/k/a Preferred Properties a/k/a The Morgan Children, Inc.; Venessa Zapata Peters; Kerry L. Haliburton; and El Campo Real Estate, LP a/k/a Goode Casseb Jones Riklin Choate & Watson

Appellees Appealed from the 419th Judicial District Court, Travis County, Texas

MOTION TO DISMISS BY APPELLEES UNIVERSITY FEDERAL CREDIT UNION, VANESSA ZAPATA-PETERS AND KERRY L. HALIBURTON

{03890643.DOC / } -1- NOW COME Appellees University Federal Credit Union (“UFCU”), its employee

Vanessa Zapata-Peters, and its trial counsel Kerry L. Haliburton and make and file this,

their motion to dismiss, and in support thereof would show as follows:

I. SUMMARY OF THE MOTION

This lawsuit arises out of a foreclosure of a house. Appellant Stacey Hammer

resided with her former husband at a house subject to a home loan held by UFCU.

Hammer’s then husband failed to pay the note payments as they came due, ultimately

resulting in a foreclosure on the house.

Appellant Hammer unlawfully and without UFCU’s permission broke into the

house on multiple occasions, attempted to and did for periods occupy the property, and

refused to vacate despite UFCU’s demands. UFCU filed a lawsuit seeking injunctive

relief against this and other related conduct by Appellant.1 UFCU obtained a permanent

injunction excluding Appellant from the premises and was able to sell the house.

Appellant then filed a separate lawsuit2 against UFCU and various other

defendants, including UFCU’s employee Vanessa Zapata-Peters and its counsel in the

related litigation, Kerry Haliburton3, complaining that the foreclosure was wrongful, and

that realtors involved in selling the house to a new owner had acted wrongfully.

Ultimately all defendants in that case were granted summary judgment in their favor. As

1 Cause No. D-1-GN-14-001262, 201st Judicial District, Travis County, Texas. 2 Cause No. D-1-GN-15-000557, 419th Judicial District, Travis County, Texas. 3 UFCU, Zapata-Peters and Haliburton are referred to hereinafter as “the UFCU Defendants.”

{03890643.DOC / } -2- set forth below, Appellant failed to timely appeal from the final judgment relating to the

UFCU Defendants and, therefore, this appeal should be dismissed for want of

jurisdiction. Moreover, Appellant has failed to take the required steps to comply with the

Rules of Appellate Procedure, even after a request by this Court’s Clerk.

II. AUTHORITIES AND ANALYSIS

A. Plaintiff/Appellant Hammer Did Not Timely Perfect An Appeal

Appellant has not obtained the clerk’s record, leaving the UFCU defendants in a

catch 22—(1) request the record themselves, essentially doing Appellant’s job for her but

providing the UFCU Defendants the ability to point out that this Court does not have

appellate jurisdiction over any dispute involving them or (2) do nothing, allowing this

litigation to linger, needlessly, which as set forth below appears to involve Appellant

failing to comply with basic rules. In an effort to bring this appeal to an expeditious end,

the UFCU Defendants file this motion even though the clerk’s record is not before the

Court.

Appellant failed to timely file a notice of appeal in relation to the UFCU

Defendants and, therefore, her appeal as to these Appellees should be dismissed. See

Martens v. Tramonte, Tramonte & Bastien, No. 14-02-01149-CV, 2003 Tex. App.

LEXIS 133, at *1-2 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (mem. op.) (granting

of a company's motion to dismiss the individual's appeal for want of jurisdiction was

proper where the notice of appeal was untimely and where the individual failed to file a

proper motion to extend time to file the notice of appeal); See also Neal v. Garcia-

{03890643.DOC / } -3- Horrerios, No. 01-07-01103-CV, 2008 Tex. App. LEXIS 3312, at *1, n.2 (Tex. App.–

Houston [1st Dist.] 2008, no pet.) (mem. op.) (entertaining a motion to dismiss and

requiring party that filed late notice to provide “reasonable explanation”); Ruiz v. Stewart

Mineral Corp., No. 12-07-00419-CV, 2007 Tex. App. LEXIS 9655 (Tex. App.–Tyler

2007, no pet.) (mem. op.) (denying motion to extend time to file notice and dismissing

for lack of timely notice of appeal).

On June 11, 2015, the realtor defendants were granted summary judgment against

Appellant and on that same day the claims against the realtor defendants were severed

into a new cause, D-1-GN-15-002232, in the 261st Judicial District. This severance left

only UFCU, Zapata-Peters, and Haliburton as defendants.4

Thereafter, the UFCU Defendants were granted summary judgment against

Appellant.5 Because the UFCU Defendants were the only remaining defendants in Cause

No. D-1-GN-000557, this was a final judgment. See Martinez v. Humble Sand & Gravel,

Inc., 875 S.W.2d 311, 312 (Tex. 1994) (where severance caused otherwise partial

summary judgment to be final as to all parties and claims remaining in the cause, it was a

final appealable judgment). This summary judgment was signed on August 18, 2015.

Appellant acknowledges in her notice of appeal this as the date of the judgment in favor

4 See Appendix pages 1-4. Because Appellant has not yet made arrangements for the clerk’s record and the time to do so has passed, the UFCU Defendants ask that this Court take judicial notice of the filings in the trial court. See Granados v. State, 843 S.W.2d 736, 737-38 (Tex. Civ. App.—Corpus Christi 1992, no writ) (appellate court can take judicial notice of fact not reasonably subject to dispute and that can be readily determined) (citing Tex. R. Evid. 201). For the convenience of this Court, copies of the referenced documents are provided with this motion. 5 See Appendix pages 5-6.

{03890643.DOC / } -4- of the UFCU Defendants. Thus, under Texas Rule of Appellate Procedure 26 and Texas

Rule of Civil Procedure 329b, Appellant had 30 days from August 18—her deadline

being September 17, 2015—to file a notice of appeal of the final judgment as to the

UFCU Defendants or to file a post-trial motion contemplated by Rule 329b.

Appellant filed a “Motion for Reconsideration and New Trial” on the morning of

September 17, 2015.6 Under Rule 329b, because no written order was entered ruling on

that motion, it was overruled by operation of law 75 days after the signing of the

judgment, which was November 2, 2015. Because she filed a motion for new trial,

Appellant had 90 days from the signing of the judgment to file her notice of appeal.

Ninety days from the signing of the judgment was November 16, 2015. Appellant’s

notice of appeal was not filed until April 20, 2016, long after this appellate deadline for

the UFCU Defendants expired.7 Thus, Appellant’s notice was untimely and her appeal

should be dismissed.

B. Plaintiff/Appellant Has Already Demonstrated a Failure to Comply With the Rules and Directives From This Court

After Appellant filed her notice of appeal, the Clerk of this Court issued a letter,

pointing out the requirement that Appellant file a docketing statement. (See Letter of

April 21, 2015.) Texas Rule of Appellate Procedure 32 requires that the Appellant file a

docketing statement to provide the court of appeals with basic information on the case.

To date, Plaintiff has still not provided this statement.

6 See Appendix 7-14. 7 See Appendix 15-21.

{03890643.DOC / } -5- The Clerk’s letter also pointed to Plaintiff’s obligation to pay the filing fee and to

arrange for the clerk and reporter’s records. On May 12, 2016, the Clerk of this Court

again wrote to Appellant, pointing out that Appellant had not arranged for the clerk’s or

reporter’s record in connection with this appeal as required by Rule 34. See Tex. R. App.

P. 34.5 (clerk’s record). The Clerk’s letter specifically pointed out that failure to arrange

for these records may result in dismissal of the appeal pursuant to Rule 37. See Tex. R.

App. P. 37.3 (clerk’s authority if no record filed). The Clerk’s letter requires a response

by Appellant regarding the records by no later than May 23, 2016.

Despite the Rules and these letters by the Clerk of this Court, Appellant has not

paid the filing fee or obtained the district clerk’s record or the reporter’s record. Thus, the

requirements of Rule 34 have not been met and this case should be dismissed.

The only excuse Appellant might even point to for these failures is her request to

proceed in forma pauperis (IFP). (See Appellant’s letter to this Court of May 18, 2016.)

However, a party can only proceed IFP if they have timely filed a notice of appeal. Tex.

R. Civ. P. 20.1(a)(2)(C). As set forth above, Appellant did not do so.

Further, Appellant has not properly filed her request to proceed IFP. See Tex. R.

App. P. 20. Rule 20.1(c) requires that the affidavit of indigency be filed in the trial court

“with or before the notice of appeal.” In her May 18 letter to the Clerk of this Court,

Appellant concedes that she did not file her affidavit before or with her notice of appeal

from cause no. 03-16-000263-CV or 03-16-000264-CV. The affidavit Appellant attaches

{03890643.DOC / } -6- to this letter is also deficient in that it fails to provide all of the information required by

the Rule. For example, the affidavit does not address Appellant’s ability to obtain a loan

to pay for costs. See Tex. R. App. P. 20.1(b)(9). Finally, Appellant’s affidavit shows that

she makes $3,800, providing her sufficient cash flow to pay court costs and the cost of

the records.

III. CONCLUSION In light of the foregoing, the UFCU Defendants pray that the Court dismiss this

appeal and for all such other and further relief as they may be justly entitled.

Respectfully submitted,

__/s/ Joe Rivera_________________________ Jeffrey A. Armstrong State Bar No. 24038747 armstrong@namanhowell.com Joe Rivera State Bar No. 24065981 jrivera@namanhowell.com NAMAN, HOWELL, SMITH & LEE, PLLC 400 Austin Avenue, Suite 800 (76701) P. O. Box 1470 Waco, Texas 76703-1470 (254) 755-4100 FAX (254) 754-6331

ATTORNEYS FOR APPELLEES UNIVERSITY FEDERAL CREDIT UNION, VANESSA ZAPATA-PETERS, and KERRY L. HALIBURTON

{03890643.DOC / } -7- CERTIFICATE OF CONFERENCE

This will certify that I conferred with Appellant Stacey Hammer and all other parties regarding the merits of this motion; Appellant Stacey Hammer is opposed to the motion and no other party opposes the motion. Tex. R. App. P. 10.1(a)(5).

__/s/ Joe Rivera____________________________ Joe Rivera

CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of June, 2016, a true and correct copy of the foregoing was served on all known counsel of record by e-service in accordance with Tex. R. App. P. 9.5., and on Appellant by certified mail:

Stacey Hammer 1034 East Cooper Avenue Aspen, Colorado 81611 Certified Mail, Return Receipt Requested No. 7015 0640 9808 0745

__/s/ Joe Rivera_________________________ Joe Rivera

{03890643.DOC / } -8- No. 03-16-00262-CV In the Court of Appeals For the Third Judicial District Sitting at Austin, Texas

Stacey Hammer, Appellant v. University Federal Credit Union; Wayne Morgan a/k/a Preferred Properties a/k/a The Morgan Children, Inc.; Venessa Zapata Peters; Kerry L. Haliburton; and El Campo Real Estate, LP a/k/a Goode Casseb Jones Riklin Choate & Watson, Appellees

Appealed from the 419th Judicial District Court, Travis County, Texas

APPENDIX IN SUPPORT OF APPELLEES’ MOTION TO DISMISS

Exhibit No. Description of Exhibit Page Nos.

1. Order Granting Defendant El Campo Real Estate L.P.’s Motion for Summary Judgment ..........................................................................Appendix 1 - 2

2. Order Granting El Campo Real Estate, L.P.’s Motion to Sever Claims Subject to Motion for Summary Judgment ............................................Appendix 3 - 4

3. Final Order Granting Summary Judgment .........................................................Appendix 5 - 6

4. Plaintiff’s Motion for Reconsideration and New Trial.....................................Appendix 7 - 14

5. Notice of Appeal .............................................................................................Appendix 15 - 21

_____________________________________________________________________________________________________________________ APPENDIX IN SUPPORT OF APPELLEE’S MOTION TO DISMISS {03958901.DOC / } PAGE 1 Respectfully submitted,

__/s/ Joe Rivera_________________________ Jeffrey A. Armstrong State Bar No. 24038747 armstrong@namanhowell.com Joe Rivera State Bar No. 24065981 jrivera@namanhowell.com NAMAN, HOWELL, SMITH & LEE, PLLC 400 Austin Avenue, Suite 800 (76701) P. O. Box 1470 Waco, Texas 76703-1470 (254) 755-4100 FAX (254) 754-6331

ATTORNEYS FOR APPELLEES UNIVERSITY FEDERAL CREDIT UNION, VANESSA ZAPATA-PETERS, and KERRY L. HALIBURTON

I.Certificate of Service

I hereby certify that on the 15th day of June, 2016, a true and correct copy of the foregoing was served on all parties of record in accordance with Tex. R. App. P. 9.5 as set forth below.

Stacey Hammer 1034 East Cooper Avenue Aspen, Colorado 81611 Certified Mail, Return Receipt Requested No. 7015 0640 9808 0714

_____________________________________________________________________________________________________________________ APPENDIX IN SUPPORT OF APPELLEE’S MOTION TO DISMISS {03958901.DOC / } PAGE 2 Appendix 00001 Appendix 00002 Appendix 00003 Appendix 00004 Appendix 00005 Appendix 00006 Appendix 00007 Appendix 00008 Appendix 00009 Appendix 00010 Appendix 00011 Appendix 00012 Appendix 00013 Appendix 00014 Appendix 00015 Appendix 00016 Appendix 00017 Appendix 00018 Appendix 00019 Appendix 00020 Appendix 00021