Ernest Ray Koonce v. Wells Fargo Bank, N.A., as Trustee Under the Pooling and Servicing Agreement Dated as of April 1, 2005, Asset Backed Pass-Through Certificates, Series 2005-WHQ2
01-15-00228-CV
| Tex. App. | Nov 2, 2015Background
- Relator Ernest R. Koonce (pro se) filed a supplemental petition for writ of mandamus in the First Court of Appeals challenging post-dismissal activity in a Harris County foreclosure-related case and seeking relief against Wells Fargo and the trial judge.
- Koonce contends his case was dismissed in full on November 17, 2011, and that the trial court lost plenary power a month later; yet the case later reappeared on the active docket without notice, motion, hearing, or explanation.
- Wells Fargo allegedly filed untimely pleadings and later sought a new trial more than three years after dismissal; Koonce says no new evidence or argument justified reopening the matter.
- Koonce alleges possible judicial misconduct and ex parte communications (or other improper means) in the unexplained reinstatement of the case and missing/altered record materials; he seeks sanctioning of Wells Fargo and its counsel.
- Wells Fargo moved to strike Koonce's supplemental mandamus petition as improper or relying on materials not presented to the trial court; Koonce opposes, arguing Rule 52 and Rule 38.7 permit supplementation "when justice requires."
Issues
| Issue | Plaintiff's Argument (Koonce) | Defendant's Argument (Wells Fargo) | Held |
|---|---|---|---|
| Whether the court should strike the supplemental mandamus petition | Koonce: Black v. Shor does not apply; no rule requires leave for supplemental mandamus; Appellate Rule 38.7/T.R.A.P. 52.3(k)(2) allow supplementation when justice requires | WF: Supplemental submission should be struck because it raises matters not properly before the trial court and relies on materials outside the record | No final appellate ruling in this filing; Koonce asks the court to deny WF's strike motion (court did not decide in this response) |
| Whether prior notice or leave was required to file the supplemental writ | Koonce: No express TRAP rule requires a motion for leave for extraordinary writ supplements; if leave is required, Koonce requests it now | WF: Impliedly contends supplementation without leave is improper because it introduces new matters | Not decided here; Koonce requests leave as alternative relief |
| Whether the supplemental materials were presented to the trial court (record completeness) | Koonce: Appendix and prior motions show the issues were presented; T.R.A.P. 52.3(k)(2) allows relevant materials in appendix | WF: Argues mandamus depends on the trial-court record and that Koonce relies on documents not before the trial court | Not decided here; dispute over which documents were before the trial court remains contested |
| Allegations of judicial misconduct/ex parte communications and sanction requests | Koonce: Reinstatement of closed file, missing documents, and unexplained docket activity create appearance of impropriety and possible ex parte contact; seeks sanctions against WF and striking of WF pleadings | WF: (As movant to strike) focuses on procedural defects of supplementation rather than addressing misconduct allegations in this filing | No adjudication of misconduct in this document; Koonce requests investigation and sanctions, but court has not ruled in this response |
Key Cases Cited
- Black v. Shor, 443 S.W.3d 170 (Tex. App.—Corpus Christi 2013) (addressed supplemental briefs in an appeal context)
- Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998) (appellate courts have discretion to allow amended or supplemental briefs when justice requires)
- In re Lumbermens Mut. Ins. Co., 184 S.W.3d 718 (Tex. 2006) (discussing appellate discretion regarding filings)
- In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (emphasizing transparency in judicial proceedings)
- In re Murchison, 349 U.S. 133 (U.S. 1955) (due process requires a fair tribunal)
- Babcock v. Northwest Mem. Hosp., 767 S.W.2d 705 (Tex. 1989) (right to a fair and impartial trial under Texas Constitution)
- Ward v. Village of Monroeville, 409 U.S. 57 (U.S. 1972) (neutral and detached judge requirement)
- CNA Ins. Co. v. Scheffey, 828 S.W.2d 785 (Tex. App.—Texarkana 1992) (appearance of judicial impartiality and public policy)