ACCEPTED 01-14-01030-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/13/2015 7:39:19 AM CHRISTOPHER PRINE CLERK
NO. 01-14-01030-CV
IN THE FILED IN 1st COURT OF APPEALS FIRST COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON, TEXAS 8/13/2015 7:39:19 AM ______________________________________ CHRISTOPHER A. PRINE Clerk TARRIS WOODS -Appellant-
VERSUS
SANDRA T. KENNER AND CHARLES E. TWYMON, JR. -Appellee- ______________________________________ On Appeal from the Probate Court of Galveston County Trial Court Case No. PR-0075144 Hon. Kimberly Sullivan, Presiding _____________________________________________
APPELLANT'S RESPONSE TO APPELLEE’S MOTION FOR DAMAGES
Douglas T. Godinich Attorney at Law SBN: 24007244 2727 Broadway Galveston, Texas 77550 (409) 763-2454 (telephone) (409) 736-4309 (facsimile) Attorney for Appellant Tarris Woods
1 TO THE HONORABE JUSTICES OF SAID COURT:
Appellant Tarris Woods asks the Court to deny
appellee’s motion for damages.
A.INTRODUCTION
1. Appellant is Tarris Woods; Appellee is Sandra
Kenner.
B. ARGUMENT & AUTHORITIES
2. Although the Court has the authority under Texas
Rule of Appellate Procedure 45 to impose damages
against a party for filing a frivolous appeal, this is
not a case in which the Court should do so.
3. An appealing party cannot be sanctioned for filing
a frivolous appeal unless the party had no reasonable
belief that the judgment could be reversed. Damages are
appropriate only in “truly egregious” circumstances.
City of Houston v. Precast Structures Inc., 60 S.W.3d
331, 340 (Tex.App.-Houston [14th Dist.] 2001, pet.
denied).
4. The motion for damages should be denied because
appellant:
2 4(a). Appellant filed his objections to the findings
of facts and conclusion of law with the trial court on
December 18, 2014. (CR: 64-67)The challenged issues
under this case number is outlined in number six (6)
which states:
“Charles E. Twymon Jr., was appointed as a co- independent administrator… [C]harles E. Twymon, Jr., received consideration from the movant for the sale of the property as a court appointed administrator and the sale was approved by this court.”
4(b). Appellant filed his objections to the findings
of facts with the trial court on December 18, 2014 under
case number 01-14-01029-CV (CR: 97-100). The challenged
issues in that case is outlined in number four (4) which
states:
“The proposed findings of fact submitted by Mr. McQuage fails in part based on the fact that the findings makes little or no mention about the heirship proceedings or basis for vacating the Appointment of Administrators”
Appellee cites the case of Heard v. City of Dallas,
456 S.W.2d 440, 445 (Tex. Civ. App. 1970), writ refused
N.R.E. (Oct. 7, 1970) which states: ‘Rule 298
contemplates that the request for further additional or
amended findings shall specify the further additional 3 or amended findings that the party making the request
desires the trial court to make and file.’
Appellant therefore complied by specifying the
additional or amended findings as outlined above.
4(c). Appellee next makes the argument that
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 and “offered
nothing to invoke this Court’s power to preserve its
appellate jurisdiction…”
4 (d). The Order Probating Last Will and Testament as
a Muniment of Title (CR:38-39) states that
“On this day came on to be heard the Application filed herein by Charles E. Twymon, Jr., and Sandra T. Kenner…” 4 (e). In Appellee’s brief Mr. McQuage makes the
following statement:
“Mr. Twymon, Jr., prosecuted his rights in this
4 proceeding through an attorney of record1” The above statement can be shown either to mislead this
Court by Appellees counsel or an attorney of record in
this case is not being candor to this tribunal as
further outlined below.
4(f). In the hearing held on July 27, 2015 in the
County Court at Law Number Three (3) under cause number
CV-74132 of Galveston County Texas, appellee’s counsel,
Mr. McQuage makes the following statement to yet
another tribunal:
“We have two homestead claimants to this property”. (See: Appendix “1” pg. 15; 5-6)
If we look at the Order Probating Last Will and
Testament as a Muniment of Title (CR: 38-39) we have
two applicants Charles E. Twymon, Jr., and Sandra T.
Kenner so what happened to Charles E. Twymon, Jr., as
a party to the above case?
Maybe the statement made by appellee’s counsel as
outlined below would explain Charles E. Twymon, Jr.,
1 Appellant request that this Court take judicial notice of Appellee’s Original Brief filed on July 15, 2015, which is hereby incorporated herein as Exhibit “2” as if fully stated herein. 5 rights and how they will be effected.
“That’s a totally different deal. That’s not a conveyance through the administration or anything like that. That’s just the two Twymon brothers giving deed to their interest to Mr. Woods.” (See: Appendix “1” pg. 22; line 9-13) 4(g). On June 15, 2015, Appellant filed his Motion
for Temporary Order Staying Enforcement of the Judgment
which cited Tex.R.App.P 24 which functions to preserve
the status quo of the matters in litigation as they
existed prior to the issuance of the order or judgment
from which an appeal is taken. Citing: Alpert v. Riley,
274 S.W.3d 277, 297 (Tex.App.-Houston [1st Dist.] 2008,
pet. denied).
4(h). Appellant attached seven (7) exhibits to the
above motion. Exhibit one (1) is a certified copy of
the warranty deed that was filed with the Galveston
County Clerk’s office on September 25, 2012 which
granted, sold and conveyed all of the property to the
Appellant.
4 (i). Appellee’s counsel, Mr. McQuage makes a
judicial admission “[T]hat’s just the two Twymon
6 brothers giving deed to their interest to Mr. Woods.”
(See: Appendix “1” pg. 22; line 11-13)
4(j). The next issue that is raised by the Appellee
is based on the allegation that Appellant refused to
submit the complete record of the proceeding on the
supersedeas bond.
4(k). Appellee filed her response to the Motion for
Review of Excessive Supersedeas Bond on June 16, 2015,
raising the objection that a full copy of the transcript
was not attached.
4(l). Appellant filed his Counter-Response on June
17, 2015 and attached the full version of the transcript
to comply with appellee’s objection and which the
Honorable Justice Jennings, acting individually, ruled
on July 9, 2015.
4 (m). Appellee’s counsel has failed to make any
determination of representation of Charles Twymon, Jr.,
because in the Application for Probate of Copy of Will
as Muniment of Title, Charles Twymon, Jr., was a named
executor (CR: 3) Charles Twymon, Jr., is the only person 7 best situated to resolve the ambiguity regarding the
current representation of Charles Twymon, Jr., as an
individual and Charles Twymon, Jr., as co/independent
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ACCEPTED 01-14-01030-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/13/2015 7:39:19 AM CHRISTOPHER PRINE CLERK
NO. 01-14-01030-CV
IN THE FILED IN 1st COURT OF APPEALS FIRST COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON, TEXAS 8/13/2015 7:39:19 AM ______________________________________ CHRISTOPHER A. PRINE Clerk TARRIS WOODS -Appellant-
VERSUS
SANDRA T. KENNER AND CHARLES E. TWYMON, JR. -Appellee- ______________________________________ On Appeal from the Probate Court of Galveston County Trial Court Case No. PR-0075144 Hon. Kimberly Sullivan, Presiding _____________________________________________
APPELLANT'S RESPONSE TO APPELLEE’S MOTION FOR DAMAGES
Douglas T. Godinich Attorney at Law SBN: 24007244 2727 Broadway Galveston, Texas 77550 (409) 763-2454 (telephone) (409) 736-4309 (facsimile) Attorney for Appellant Tarris Woods
1 TO THE HONORABE JUSTICES OF SAID COURT:
Appellant Tarris Woods asks the Court to deny
appellee’s motion for damages.
A.INTRODUCTION
1. Appellant is Tarris Woods; Appellee is Sandra
Kenner.
B. ARGUMENT & AUTHORITIES
2. Although the Court has the authority under Texas
Rule of Appellate Procedure 45 to impose damages
against a party for filing a frivolous appeal, this is
not a case in which the Court should do so.
3. An appealing party cannot be sanctioned for filing
a frivolous appeal unless the party had no reasonable
belief that the judgment could be reversed. Damages are
appropriate only in “truly egregious” circumstances.
City of Houston v. Precast Structures Inc., 60 S.W.3d
331, 340 (Tex.App.-Houston [14th Dist.] 2001, pet.
denied).
4. The motion for damages should be denied because
appellant:
2 4(a). Appellant filed his objections to the findings
of facts and conclusion of law with the trial court on
December 18, 2014. (CR: 64-67)The challenged issues
under this case number is outlined in number six (6)
which states:
“Charles E. Twymon Jr., was appointed as a co- independent administrator… [C]harles E. Twymon, Jr., received consideration from the movant for the sale of the property as a court appointed administrator and the sale was approved by this court.”
4(b). Appellant filed his objections to the findings
of facts with the trial court on December 18, 2014 under
case number 01-14-01029-CV (CR: 97-100). The challenged
issues in that case is outlined in number four (4) which
states:
“The proposed findings of fact submitted by Mr. McQuage fails in part based on the fact that the findings makes little or no mention about the heirship proceedings or basis for vacating the Appointment of Administrators”
Appellee cites the case of Heard v. City of Dallas,
456 S.W.2d 440, 445 (Tex. Civ. App. 1970), writ refused
N.R.E. (Oct. 7, 1970) which states: ‘Rule 298
contemplates that the request for further additional or
amended findings shall specify the further additional 3 or amended findings that the party making the request
desires the trial court to make and file.’
Appellant therefore complied by specifying the
additional or amended findings as outlined above.
4(c). Appellee next makes the argument that
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 and “offered
nothing to invoke this Court’s power to preserve its
appellate jurisdiction…”
4 (d). The Order Probating Last Will and Testament as
a Muniment of Title (CR:38-39) states that
“On this day came on to be heard the Application filed herein by Charles E. Twymon, Jr., and Sandra T. Kenner…” 4 (e). In Appellee’s brief Mr. McQuage makes the
following statement:
“Mr. Twymon, Jr., prosecuted his rights in this
4 proceeding through an attorney of record1” The above statement can be shown either to mislead this
Court by Appellees counsel or an attorney of record in
this case is not being candor to this tribunal as
further outlined below.
4(f). In the hearing held on July 27, 2015 in the
County Court at Law Number Three (3) under cause number
CV-74132 of Galveston County Texas, appellee’s counsel,
Mr. McQuage makes the following statement to yet
another tribunal:
“We have two homestead claimants to this property”. (See: Appendix “1” pg. 15; 5-6)
If we look at the Order Probating Last Will and
Testament as a Muniment of Title (CR: 38-39) we have
two applicants Charles E. Twymon, Jr., and Sandra T.
Kenner so what happened to Charles E. Twymon, Jr., as
a party to the above case?
Maybe the statement made by appellee’s counsel as
outlined below would explain Charles E. Twymon, Jr.,
1 Appellant request that this Court take judicial notice of Appellee’s Original Brief filed on July 15, 2015, which is hereby incorporated herein as Exhibit “2” as if fully stated herein. 5 rights and how they will be effected.
“That’s a totally different deal. That’s not a conveyance through the administration or anything like that. That’s just the two Twymon brothers giving deed to their interest to Mr. Woods.” (See: Appendix “1” pg. 22; line 9-13) 4(g). On June 15, 2015, Appellant filed his Motion
for Temporary Order Staying Enforcement of the Judgment
which cited Tex.R.App.P 24 which functions to preserve
the status quo of the matters in litigation as they
existed prior to the issuance of the order or judgment
from which an appeal is taken. Citing: Alpert v. Riley,
274 S.W.3d 277, 297 (Tex.App.-Houston [1st Dist.] 2008,
pet. denied).
4(h). Appellant attached seven (7) exhibits to the
above motion. Exhibit one (1) is a certified copy of
the warranty deed that was filed with the Galveston
County Clerk’s office on September 25, 2012 which
granted, sold and conveyed all of the property to the
Appellant.
4 (i). Appellee’s counsel, Mr. McQuage makes a
judicial admission “[T]hat’s just the two Twymon
6 brothers giving deed to their interest to Mr. Woods.”
(See: Appendix “1” pg. 22; line 11-13)
4(j). The next issue that is raised by the Appellee
is based on the allegation that Appellant refused to
submit the complete record of the proceeding on the
supersedeas bond.
4(k). Appellee filed her response to the Motion for
Review of Excessive Supersedeas Bond on June 16, 2015,
raising the objection that a full copy of the transcript
was not attached.
4(l). Appellant filed his Counter-Response on June
17, 2015 and attached the full version of the transcript
to comply with appellee’s objection and which the
Honorable Justice Jennings, acting individually, ruled
on July 9, 2015.
4 (m). Appellee’s counsel has failed to make any
determination of representation of Charles Twymon, Jr.,
because in the Application for Probate of Copy of Will
as Muniment of Title, Charles Twymon, Jr., was a named
executor (CR: 3) Charles Twymon, Jr., is the only person 7 best situated to resolve the ambiguity regarding the
current representation of Charles Twymon, Jr., as an
individual and Charles Twymon, Jr., as co/independent
Executor of the Estate of Charles Twymon, Sr.
II.
5. Appellant request that this court exercise prudence
and caution and deliberate most carefully before
awarding appellee’s sanctions. see: RDI Mech., Inc. v.
WPVA, L.P., No. 01-06-00962-CV, 2008 WL 920315, at *3
(Tex. App. Apr. 3, 2008)citing Smith v. Marshall B.
Brown, P.C., 51 S.W.3d 376, 381 (Tex.App.-Houston [1st
Dist.] 2001, pet. denied). After objectively reviewing
the record from the viewpoint of the Appellant,
Appellant has shown that he had reasonable grounds to
believe the judgment could be reversed. Id. Therefore,
Appellant request that this court decline to conclude
that Appellant’s appeal is frivolous.
Respectfully submitted,
__/S/_Douglas T. Godinich _ Douglas T. Godinich Texas Bar No 24007244 2727 Broadway Galveston, Texas 77550
8 Tel: (409) 763-2454 Fax: (409) 763-4309 Attorney for Appellant Tarris Woods
9 Certificate of Service
A copy of this notice is being filed with the
appellate clerk in accordance with rule 25.1(e) of the
Texas Rules of Civil Procedure. I certify that a true
copy of this Appellant’s Response to Appellee’s Motion
for Damages was served in accordance with rule 9.5 of
the Texas Rules of Appellate Procedure on each party or
the attorney for such party indicated below by first
class mail and or fax transmittal and or by hand
delivery.
_/s/ Douglas T. Godinich Douglas T. Godinich
By E-Serve Thomas W. McQuage P.O. Box 16894 Galveston, Texas 77552 TEL: 409-762-1104 mcquage@swbell.net
10 NO. 01-14-0030-CV
IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS ______________________________________
TARRIS WOODS -Appellant-
SANDRA T. KENNER AND CHARLES E. TWYMON, JR. -Appellee- ______________________________________ On Appeal from the Probate Court of Galveston County Trial Court Case No. PR-0075144 Hon. Judge Kimberly Sullivan, Presiding _____________________________________________
APPELLANT’S APPENDIX
1. Transcript of Oral Hearing in the County Court at Law…………….. Exhibit 1