in Re Ernest Ray Koonce
01-15-00440-CV
| Tex. App. | Oct 23, 2015Background
- Relator Ernest R. Koonce filed a petition for writ of mandamus seeking review of a trial court order that granted Wells Fargo, as Trustee’s motion for new trial.
- Wells Fargo responded to the original mandamus petition. Months later, Koonce filed a Supplemental Petition for Writ of Mandamus without seeking leave.
- Wells Fargo moved to strike the supplemental petition and the documents attached to it, asserting they include materials not in the trial-court record and some purportedly created by third parties for this mandamus.
- Wells Fargo advances three principal procedural objections: Koonce did not obtain leave to file the supplement; Issues A–D in the supplement were never raised or addressed in the trial court; and the further supplementation of Issue E is unnecessary because the parties already fully briefed it.
- Wells Fargo asks the appellate court to strike the supplemental petition and attached record in full, or alternatively for leave to file a responsive brief if the motion to strike is denied.
Issues
| Issue | Plaintiff's Argument (Koonce) | Defendant's Argument (Wells Fargo) | Held (Requested/Asserted) |
|---|---|---|---|
| 1. Whether relator may file a supplemental mandamus petition without leave | Koonce filed the supplement but did not seek leave (implicitly argues supplement is permitted) | Koonce failed to seek express permission; new issues in post-submission briefs are untimely | Motion requests strike of entire supplement for lack of leave |
| 2. Whether Issues A–D are proper for mandamus when not raised in trial court | Koonce raises Issues A–D for mandamus review in the supplement | Issues A–D were never presented to or decided by the trial court, so mandamus is inappropriate; attachments are outside the trial record | Motion requests strike of Issues A–D and attached documents as not part of trial record and unripe for mandamus |
| 3. Whether further supplementation of Issue E is permitted or necessary | Koonce supplements prior briefing on Issue E (acceleration in 2006) | Issue E already fully briefed; Koonce offers no reason for additional briefing; the acceleration contention has been addressed in prior litigation (res judicata) | Motion requests denial of further supplementation and argues Issue E merits no new briefing |
Key Cases Cited
- Black v. Shor, 443 S.W.3d 170 (Tex. App.—Corpus Christi 2013) (new or additional issues in reply/post‑submission briefs are untimely without court permission)
- Collin Cnty. v. Hixon Family P'ship, Ltd., 365 S.W.3d 860 (Tex. App.—Dallas 2012) (same principle regarding untimely new issues)
- Rogers v. City of Fort Worth, 89 S.W.3d 265 (Tex. App.—Fort Worth 2002) (court permission required for additional issues filed late)
- Haynes v. McIntosh, 776 S.W.2d 784 (Tex. App.—Corpus Christi 1989) (untimely new issues are not considered)
- Guajardo v. Conwell, 46 S.W.3d 862 (Tex. 2001) (appellate courts generally may not consider attachments not in the trial record)
- In re Guardianship of Winn, 372 S.W.3d 291 (Tex. App.—Dallas 2012) (attachments outside the trial record should not be considered)
- Paselk v. Rabun, 293 S.W.3d 600 (Tex. App.—Texarkana 2009) (court will not consider matters outside the record)
- WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451 (Tex. App.—Houston [14th Dist.] 2005) (attachments outside trial record not considered)
- In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (mandamus requires showing of clear abuse and lack of adequate appellate remedy)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus review)
- Carlton v. Trinity Universal Ins. Co., 32 S.W.3d 454 (Tex. App.—Houston [14th Dist.] 2000) (arguments should be confined to the record)
- Melendez v. Exxon Corp., 998 S.W.2d 266 (Tex. App.—Houston [14th Dist.] 1999) (parties may not rely on matters outside the record in appellate argument)