ACCEPTED 01-14-01030-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/4/2015 4:30:04 PM CHRISTOPHER PRINE CLERK
No. 01-14-01030-CV FILED IN 1st COURT OF APPEALS ________________________________________________________________ HOUSTON, TEXAS IN THE 8/4/2015 4:30:04 PM COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE Clerk
FIRST SUPREME JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS _________________________________________________________________
TARRIS WOODS, Appellant v. SANDRA T. KENNER AND CHARLES E. TWYMON, JR., Appellees _________________________________________________________________
APPELLEE’S MOTION FOR RULE 45 DAMAGES
To the Honorable Court of Appeals:
Sandra T. Kenner and Charles E. Twymon, Jr., Appellees, move the Court to
award damages or sanctions against the Appellant, Tarris Wood, pursuant to Tex. R.
App. P.45, and show:
I. This Motion.
Appellees acknowledge that this motion invokes an exercise of discretion that
an appellate court exercises with prudence and after careful deliberation, and in truly
egregious circumstances. Smith v. Brown, 51 S.W.3d 376, 381 (Tex.App.-Houston
[1st Dist.] 2001, pet. denied). Nevertheless, the appellant has presented this Court
with a series of motions, and then a brief on the merits, all of which reflect no
reasonable grounds to believe the judgment could be reversed or other relief granted. II. The Appellant’s Frivolous Filings.
First, the appellant moved to remand the case for the entry of additional
findings of fact and conclusions of law, despite having failed to actually request any
additional findings of fact or conclusions of law from the trial court. Since the
motion presented nothing for this Court to review, the motion was denied.
Then, the appellant moved this Court to enjoin the continuation of Appellee's
Sandra Kenner's lawsuit to recover damages arising from the Appellant for
withholding possession of their jointly owned property. That motion offered nothing
to invoke this Court's power to preserve its appellate jurisdiction, so that motion was
also denied.
At the same time, Appellant moved of the trial court's order establishing the
amount of the Appellant's supersedeas bond. However, the Appellant failed to
provide a record of the trial court proceedings, even though the Appellant seemed to
have procured that record, and actually produced a portion of it, consisting of the trial
court's announcement of its ruling. No explanation was provided for the Appellant's
selective submission of the trial court's announcement, but his refusal to submit the
rest of the record of that proceeding. Of course, that motion also was denied.
After moving for his third extension of time to file a brief on the merits, the
Appellant submitted a brief which:
-2- A. complained that the application by Appellee Charles Twymon, Jr., should have
been dismissed for want of prosecution because he failed to appear in person,
contrary to the express language of Tex. R. Civ. P. 7.
B. argued against the factual sufficiency of the evidence to overcome the presumption of
revocation arising from the failure to locate the Decedent's original Will, in the face of the
testimony of several witnesses to the ruination of all the Decedent's personal papers and
effects by Hurricane Ike; and
C. sought to fashion an argument based upon what a lawyer has said in another proceeding,
based on a record of those proceedings which was attached to the Appellate's brief, but not
appearing to have been any part of the proceedings in this case, and without any reasonably
articulate expression of how the appendix to his brief could possibly demonstrate any
semblance of reversible error.
III. Argument
This Court reviews the record from the advocate's viewpoint, to decide whether
he had reasonable grounds to believe the judgment could be reversed. Smith v.
Marshall B. Brown, P.C., 51 S.W.3d 376, 381 (Tex. App.-Houston [1st Dist.] 2001,
pet. denied). The grounds for the decision to grant this motion may include
unsupported factual statements (and misstatements), the failure to preserve error for
appeal, and the absence of legal merit in his arguments. Hunt v. CIT Group/
Consumer Finance, Inc., 03-09-00046-CV (Tex. Ct. App. – Austin, April 15, 2010, -3- pet denied). This appellant’s multiple filings requesting relief where he failed to
preserve error, failed to submit a supporting record, and presented grossly
unmeritorious arguments, all fit within those parameters.
IV. Supporting Affidavit of Damages.
Courts awarding sanctions for a frivolous appeal under Rule 45 typically award
attorney's fees for the appeal. Hunt v. CIT Group/Consumer Finance, Inc., supra,
citing, Smith v. Marshall B. Brown, P.C., supra at 382 ($5,000); Chapman v.
Hootman, 999 S.W.2d 118, 125 (Tex. App.--Houston [14th Dist.] 1999, no
pet.)($5,000); Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393,
397 (Tex. App.--San Antonio 1999, no pet.) ($5,000);and Diana Rivera & Assocs.,
P.C. v. Calvillo, 986 S.W.2d 795 (Tex. App.--Corpus Christi 1999, pet. denied)
($8,800). Proof by affidavit is a proper method of establishing the appropriate
sanction for the filing of a frivolous appeal, Id., and Smith v. Marshall B. Brown,
P.C., supra. Appellees attach their attorney’s affidavit that a reasonable fee for the
Appellees’ attorney’s efforts would be $3200.00, compensating that attorney for
expending seven hours of time in responding to the appellate’s three frivolous
motions, and nine hours in briefing the merits.
For the reasons stated, Appellees Sandra T. Kenner and Charles E. Twymon,
Jr., pray that the Court’s judgment affirming that of the trial court also make an award
-4- of $3200.00 in damages to the Appellees for the Appellant’s frivolous appeal.
Respectfully submitted,
/s/Thomas W McQuage Thomas W. McQuage Post Office Box 16894 Galveston, Texas 77552-6894 (409) 762-1104 (409) 762-4005 (FAX) State Bar No. 13849400 mcquage@swbell.net ATTORNEY FOR APPELLEES
CERTIFICATE OF SERVICE I certify that a copy of the foregoing instrument was delivered to counsel for the Appellees on the 4th day of August, 2015, by serving Douglas T. Godinich, through the Efile.TX Courts electronic service.
/s/Thomas W McQuage
-5- No. 01-14-01030-CV ________________________________________________________________ IN THE COURT OF APPEALS FOR THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS _________________________________________________________________
TARRIS WOODS, Appellant v. SANDRA T. KENNER AND CHARLES E. TWYMON, JR., Appellees _________________________________________________________________
AFFIDAVIT SUPPORTING APPELLEE’S MOTION FOR RULE 45 DAMAGES
BEFORE ME, the undersigned authority, on this day personally appeared Thomas W.
McQuage, who after being by me duly sworn, on oath deposed and said:
My name is Thomas W. McQuage. I am the attorney of record for the Appellees in
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ACCEPTED 01-14-01030-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/4/2015 4:30:04 PM CHRISTOPHER PRINE CLERK
No. 01-14-01030-CV FILED IN 1st COURT OF APPEALS ________________________________________________________________ HOUSTON, TEXAS IN THE 8/4/2015 4:30:04 PM COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE Clerk
FIRST SUPREME JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS _________________________________________________________________
TARRIS WOODS, Appellant v. SANDRA T. KENNER AND CHARLES E. TWYMON, JR., Appellees _________________________________________________________________
APPELLEE’S MOTION FOR RULE 45 DAMAGES
To the Honorable Court of Appeals:
Sandra T. Kenner and Charles E. Twymon, Jr., Appellees, move the Court to
award damages or sanctions against the Appellant, Tarris Wood, pursuant to Tex. R.
App. P.45, and show:
I. This Motion.
Appellees acknowledge that this motion invokes an exercise of discretion that
an appellate court exercises with prudence and after careful deliberation, and in truly
egregious circumstances. Smith v. Brown, 51 S.W.3d 376, 381 (Tex.App.-Houston
[1st Dist.] 2001, pet. denied). Nevertheless, the appellant has presented this Court
with a series of motions, and then a brief on the merits, all of which reflect no
reasonable grounds to believe the judgment could be reversed or other relief granted. II. The Appellant’s Frivolous Filings.
First, the appellant moved to remand the case for the entry of additional
findings of fact and conclusions of law, despite having failed to actually request any
additional findings of fact or conclusions of law from the trial court. Since the
motion presented nothing for this Court to review, the motion was denied.
Then, the appellant moved this Court to enjoin the continuation of Appellee's
Sandra Kenner's lawsuit to recover damages arising from the Appellant for
withholding possession of their jointly owned property. That motion offered nothing
to invoke this Court's power to preserve its appellate jurisdiction, so that motion was
also denied.
At the same time, Appellant moved of the trial court's order establishing the
amount of the Appellant's supersedeas bond. However, the Appellant failed to
provide a record of the trial court proceedings, even though the Appellant seemed to
have procured that record, and actually produced a portion of it, consisting of the trial
court's announcement of its ruling. No explanation was provided for the Appellant's
selective submission of the trial court's announcement, but his refusal to submit the
rest of the record of that proceeding. Of course, that motion also was denied.
After moving for his third extension of time to file a brief on the merits, the
Appellant submitted a brief which:
-2- A. complained that the application by Appellee Charles Twymon, Jr., should have
been dismissed for want of prosecution because he failed to appear in person,
contrary to the express language of Tex. R. Civ. P. 7.
B. argued against the factual sufficiency of the evidence to overcome the presumption of
revocation arising from the failure to locate the Decedent's original Will, in the face of the
testimony of several witnesses to the ruination of all the Decedent's personal papers and
effects by Hurricane Ike; and
C. sought to fashion an argument based upon what a lawyer has said in another proceeding,
based on a record of those proceedings which was attached to the Appellate's brief, but not
appearing to have been any part of the proceedings in this case, and without any reasonably
articulate expression of how the appendix to his brief could possibly demonstrate any
semblance of reversible error.
III. Argument
This Court reviews the record from the advocate's viewpoint, to decide whether
he had reasonable grounds to believe the judgment could be reversed. Smith v.
Marshall B. Brown, P.C., 51 S.W.3d 376, 381 (Tex. App.-Houston [1st Dist.] 2001,
pet. denied). The grounds for the decision to grant this motion may include
unsupported factual statements (and misstatements), the failure to preserve error for
appeal, and the absence of legal merit in his arguments. Hunt v. CIT Group/
Consumer Finance, Inc., 03-09-00046-CV (Tex. Ct. App. – Austin, April 15, 2010, -3- pet denied). This appellant’s multiple filings requesting relief where he failed to
preserve error, failed to submit a supporting record, and presented grossly
unmeritorious arguments, all fit within those parameters.
IV. Supporting Affidavit of Damages.
Courts awarding sanctions for a frivolous appeal under Rule 45 typically award
attorney's fees for the appeal. Hunt v. CIT Group/Consumer Finance, Inc., supra,
citing, Smith v. Marshall B. Brown, P.C., supra at 382 ($5,000); Chapman v.
Hootman, 999 S.W.2d 118, 125 (Tex. App.--Houston [14th Dist.] 1999, no
pet.)($5,000); Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393,
397 (Tex. App.--San Antonio 1999, no pet.) ($5,000);and Diana Rivera & Assocs.,
P.C. v. Calvillo, 986 S.W.2d 795 (Tex. App.--Corpus Christi 1999, pet. denied)
($8,800). Proof by affidavit is a proper method of establishing the appropriate
sanction for the filing of a frivolous appeal, Id., and Smith v. Marshall B. Brown,
P.C., supra. Appellees attach their attorney’s affidavit that a reasonable fee for the
Appellees’ attorney’s efforts would be $3200.00, compensating that attorney for
expending seven hours of time in responding to the appellate’s three frivolous
motions, and nine hours in briefing the merits.
For the reasons stated, Appellees Sandra T. Kenner and Charles E. Twymon,
Jr., pray that the Court’s judgment affirming that of the trial court also make an award
-4- of $3200.00 in damages to the Appellees for the Appellant’s frivolous appeal.
Respectfully submitted,
/s/Thomas W McQuage Thomas W. McQuage Post Office Box 16894 Galveston, Texas 77552-6894 (409) 762-1104 (409) 762-4005 (FAX) State Bar No. 13849400 mcquage@swbell.net ATTORNEY FOR APPELLEES
CERTIFICATE OF SERVICE I certify that a copy of the foregoing instrument was delivered to counsel for the Appellees on the 4th day of August, 2015, by serving Douglas T. Godinich, through the Efile.TX Courts electronic service.
/s/Thomas W McQuage
-5- No. 01-14-01030-CV ________________________________________________________________ IN THE COURT OF APPEALS FOR THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS _________________________________________________________________
TARRIS WOODS, Appellant v. SANDRA T. KENNER AND CHARLES E. TWYMON, JR., Appellees _________________________________________________________________
AFFIDAVIT SUPPORTING APPELLEE’S MOTION FOR RULE 45 DAMAGES
BEFORE ME, the undersigned authority, on this day personally appeared Thomas W.
McQuage, who after being by me duly sworn, on oath deposed and said:
My name is Thomas W. McQuage. I am the attorney of record for the Appellees in
this appeal. I have personal knowledge of the facts stated in this affidavit, and they are true
and correct. I have never been convicted crime, and I am fully competent to make this
affidavit.
In the course of representing the Appellees in this appeal, I have prepared and
filed a response to the Appellant’s Motion to remand the case for the entry of
additional findings of fact and conclusions of law, and I estimate that I spent
approximately three hours preparing, filing and serving that response, including the
research necessary to assemble the five cases cited in the response. I also prepared
-1- the Appellees’ response to the Appellant’s motion to enjoin the continuation of
Sandra Kenner's lawsuit to recover damages arising from the Appellant for
withholding possession of their jointly owned property. I estimate that I spent about
two hours preparing a response to that motion. Likewise, I estimate that I spent about
two hours preparing a response to the Appellate’s motion for this Court to review or
establish the amount of the Appellant's supersedeas bond. In briefing the merits of
the case, I estimate that I expended about nine hours on the work necessary to
prepare, file and serve that brief. That work included reviewing and preparing a
written summary of the entire content of the Clerk’s Record and the Reporter’s
Record, with notations to pertinent page numbers, legal research to provide
appropriate citations, and then composing the brief.
I customarily charge an hourly rate of $200.00 per hour. I have been licensed
to practice law in the State of Texas since 1979, and I am familiar with rates charged
by attorneys in Galveston County for services such as those performed by me in this
case. I therefore believe a reasonable attorneys’ fee in this case to be $3200.00. I
have refrained from billing the Appellees for this work, principally because Appellee
Sandra Kenner, who is the appellee primarily interested in the outcome of this appeal,
lacks the financial wherewithal to pay a bill for those services. However, if the Court
were to make an award commensurate with the reasonable value of those services, I
-2- would gladly propose that Ms. Kenner compensate e for those professional services.
omas W. McQuage
SU1SCRIBED I WORN TO BEFORE ME by mas W. McQuage on the ay of A ,2015.
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