Case Information
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| RECEIVED IN
The Court of Appeals Sixth District | STATE OF TEXAS | FILED IN
The Court of Appeals Sixth District |
| :--: | :--: | :--: |
| SEP 092015 | SIXTH APPELLATE DISTRICT | SEP 092015 |
| Texarkana, Texas Debra Autrey, Clerk | COURT OF APPEALS | Texarkana, Texas
Debra K. Autrey, Clerk |
APPELLATE CASE NUMBER 06-15-0026-CV TRIAL COURT CASE NUMBER 80896
September 8, 2015
ROBERT YURIK VS.
ERNESTINE PHILLIPS DEFENDANT
THIS DOCUMENT AND ITS CONTENTS SHALL SERVE AS A MOTION BY THE PLINTIFF TO DISPUTE THE CERTIFICATE OF SERVICE, STATEMENT OF FACTS AND ARGUMENT SUBMITTED BY THE DEFENDANT, ERNESTINE PHILLIPS. A FINAL CONCLUSION IS SUBMITTED BY THE PLAINTIFF TO THE COURT
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TABLE OF CONTENTS
- STATEMENT OF FACTS
- ARGUMENT
- CONCLUSION
- CERTIFICATION OF SERVICE
- ATTACHMENTS/EVIDENCE
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MOTION TO DISPUTE THE DEFENDANT APPELLATE BRIEF PLAINTIFF: ROBERT YURIK DEFENDANT: ERNESTINE PHILLIPS
THE STATEMENT OF FACTS, REGARDING THE APPELLATE CASE REFERENCED ON THE COVER PAGE OF THIS DOCUMENT, WAS SUBMITTED BY THE DEFENDANT TO THE COURT ON AUGUST 19, 2015, PER THE CERTIFICATE OF SERVICE CERTIFIED BY THE DEFENDANT.
UPON RECEIPT OF THE DOCUMENT BY THE PLAINTIFF ON AUGUST 26, 2015, THIS MOTION WAS IMMEDIATELY GENERATED AND IS RESPECTFULLY SUBMITTED TO THE COURT FOR CONSIDERATION. THE FOLLOWING FACTS ARE IN DISPUTE:
- CERTIFICATE OF SERVICE: THE CERTIFICATE OF SERVICE, SIGNED BY THE DEFENDANT, CERTIFIES THAT THE COPY OF THE APPELLATE BRIEF WAS SUBMITTED BY THE DEFENDANT TO THE COURT AND THE PLAINTIFF ON AUGUST 19, 2015.
PER THE US POSTAL SERVICE STAMP ON THE ORIGINAL ENVELOPE ADDRESSED TO THE PLAINTIFF, THE COPY WAS NOT SUBMITTED UNTIL S DAYS LATER, ON AUGUST 24, 2015. 2. STATEMENT OF FACTS-1: "THE SIGNATURES WERE REVIEWED BY JUDGE BENCH AND IT WAS DETERMINED THAT ALL SIGNATURES WERE THE SAME AND ACCEPTED BY THE INSURANCE COMPANY."
THE JUDGE DID NOT VALIDATE THE SIGNATURES TO BE THE SAME. THE OUTCOME FROM THE ORIGINAL TRIAL WAS THAT THERE WAS NOT ENOUGH EVIDENCE (IN ABSENCE OF A HANDWRITING EXPERT) TO INVALIDATE THE AUTHENTICITY OF THE SIGNATURES. THE STATEMENT WAS MADE BY THE COURT THAT THE SIGNATURES WERE SIMILAR, BUT YET DIFFERENT. AT NO TIME DID THE COURT VALIDATE THE AUTHENTICITY OF THE SIGNATURES.
THE AUTHENTICITY OF THE SIGNATURES IS NOT WHAT IS UNDER APPEAL SUBMITTED BY THE PLAINTIFF. 3. STATEMENT OF FACTS-2: "THE DATES WERE LISTED ON THE FINAL DOCUMENT WAS NEVER IN QUESTION, JUST THE SIGNATURES. MR. YURIK PROVIDED NOT DOCUMENTATION THAT FINAL SIGNATURE WAS NOT DARLENE TRAINOR'S."
THE DATES ON THE FINAL DOCUMENT WERE DISCUSSED SPECIFICALLY IN THE INITIAL TRIAL. THE JUDGE NOTED THAT THE NUMBERS LISTED NEXT TO BOTH SIGNATURES WERE NOT A VALID DATE, BUT JUST A RANDOM STRING OF NUMBERS. THE JUDGE, HOWEVER, DID NOT RULE ON THE FACT THAT THE DOCUMENT CLEARLY STATES THE EFFECTIVE DATE OF THE DOCUMENT TO BE THE DATE OF THE SIGNATURE, BUT THERE IS NO APPARENT WAY TO DECIPHER WHAT THAT DATE IS.
*4 MR. YURIK PRESENTED OTHER LEGAL DOCUMENTS REGARDING THE QUESTIONABLE SIGNATURES AS COMPARISON. THE JUDGE STATED THAT IN ABSENCE OF A HANDWRITING EXPERT, THE SIGNATURES COULD NOT BE INVALIDATED BY THE COURT. THE AUTHENTICITY OF THE SIGNATURES IS NOT WHAT IS UNDER APPEAL SUBMITTED BY THE PLAINTIFF. 4. STATEMENT OF FACTS-3: "DARLENE TRAINOR HAD TO CALL THE INSURANCE COMPANY DIRECT TO GET THE FORM TO CHANGE THE BENEFICIARIES, AS SEEN BY THE DATES THAT THE INSURANCE COMPANY SENT THE FORM TO DARLENE TAINOR. ALSO NOTE THAT ERNESTINE PHILLIPS WAS ON THE PREVIOUS BENEFIARY CHANGE AFTER THE DEATH OF HER HUSBAND, THAT A CLEAR INDICATOR OF HER INTENT TO CHANGE HER BENEFICARY."
THE ONLY DOCUMENT IN QUESTION HERE IS THE LAST SUBMITTED BENEFICIARY CHANGE FORM. THERE WAS NO FORM "AFTER THE DEATH OF HER HUSBAND" SUBMITTED TO THE COURT AT ALL. THERE WAS ONE FORM SUBMITTED TO THE COURT PRIOR TO THE ONE IN DISPUTE HERE, AND IT NAMED ROBERT YURIK AS THE SOLE PRIMARY BENEFICIARY, WITH ERNESTINE PHILLIPS A CONTINGENT. 5. ARGUMENT: THE BENEFICIARY CHANGE FORM IS AN INSTRUMENT TO RECORD CHANGES MADE TO THE LIFE INSURANCE POLICY, BUT AS EQUALLY AS INPORTANT, TO DETERMINE WHEN THOSE CHANGES SHOULD BE ENFORCED. IN THIS CASE, MR. YURIK CLAIMED THAT THE BENEFECIARY DOCUEMTS HAD BEEN FORGED. JUDGE BENCH REVIEWED THE DOCUMENTS THAT WERE PROVIDED INTO EVIDENCE OF THE COURT. JUDGE BENCH QUESTIONED THE PLAINTIFF AND THE DEFENDANT (THE DOCUMENTS THAT WERE PROVIDED TO JUDGE BENCH HAVE BEEN ATTACHED TO THIS DOCUMENT). AFTER REVIEW OF THE DOCUMENTS JUDGE BENCH RULED THAT THE SIGNATURES TO THE HANDWRITING ON ALL OF THE DOCUMENTS WERE IN FACT DARLENE TRAINOR'S AND THERE WAS NOT FORGED SIGNATURES. AT THAT TIME JUDGE BENCH RULED THAT THE LAST BENEFICIARY CHANGE SHOULD BE UPHELD AND RULED IN FAVOR OF THE DEFENDANT ERNESTINE PHILLIPS.
THIS STATEMENT VALIDATES MS. PHILLIPS' INTEREST IN THE IMPORTANCE OF ENFORCABILITY WITH REGARD TO RECORDED CHANGES.
THE SIGNATURES WERE NOT RULED AS AUTHENTIC BY THE JUDGE. JUDGE BENCH RULED THAT IN ABSENCE OF A HANDWRITING EXPERT, THE SIGNATURES COULD NOT BE RULED AS INVALID.
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CONCLUSION
MS. PHILLIPS HAS EXAGGERATED THE FACTS IN HER BRIEF AND DELIBERATELY WITHHELD SUBMISSION OF THE BRIEF TO THE PLAINTIFF. SHE IS ATTEMPTING TO RE-ARGUE THE RULING BASED ON AUTHENTICITY OF SIGNATURES, WHICH IS NOT IN DISPUTE HERE. THE ORIGINAL APPLICATION SUBMITTED WITH HER BRIEF WAS NOT SUBMITTED AT THE INITIAL TRIAL, WAS NOT IN QUESTION AT THE INITIAL TRIAL, AND IS NOT IN QUESTION IN THIS APPEAL.
THE PLAINTIFF RESPECFTULLY REQUESTS A RULING OF THE FORM TO BE INVALID BASED ON THE ENFORCABILITY OF THE BENEFICIARY CHANGE FORM BASED ON A STRING OF NUMBERS ENTERED INTO THE DOCUMENT UPON SIGNATURE WHICH DOES NOT REPRESENT ANY RECOGNIZABLE DATE FORMAT. SINCE THE DOCUMENT DOES NOT STATE IT IS ENFORCEABLE UPON RECORD OF RECEIPT BY THE INSURANCE COMPANY, BUT RATHER THE DATE UPON SIGNATURE; AND THERE IS NO POLICY OR PRECIDENT SUBMITTED BY ANY PARTY STATING A DEFAULT MEASURE; THE ENFORCABILITY OF THIS DOCUMENT IS IN QUESTION AND RELIEF IS REQUESTED OF THE COURT.
THE PLAINTIFF IS REQUESTING THAT IF THIS DOCUMENT HAS NO ENFORCEABLE DATE, THE FORM BE RULED AS INVALID AND THE PREVIOUS BENEFICIARY FORM, DATED DECEMBER OF 2002 BE RECOGNIZED AS THE LAST VALID FORM SUBMISSION.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A COPY HAS BEEN FURNISHED TO THE COURT AND TO ERNESTINE PHILLIPS BY MAIL DELIVERY ON September 8, 2015
ROBERT YURIK
1004 JERNIGAN STREET
COMMERCE, TEXAS 75428
ROBERT YURIK
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A COPY HAS BEEN FUNISHED TO STONEBRIDGE LIFE INSURANCE COMPAN AND ROBERT YURIK BY MAIL DELIVERY ON AUGUST 19,2015
ERNSTINE PHILLIPS
104 MEADOW DR. CONVERSE, TX 78109
BY: ERNESTINE PHILLIPS
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STONEBRIDGE LIFE
Insurance Company 2700 West Fario Parkway = Fiano, Texas 73075-8200 December 03, 2002
DARLENE INEZ TRAINOR
11542 RANCH LANE LOT88
FREDRICKSBURG VA 22407
Policy/Certificate Number: 721.4794436 On the Life of: DARLENE INEZ TRAINOR
Dear DARLENE INEZ TRAINOR
In order to change the beneficiary of your policy/certificate, please provide the information requested below, make a copy of this form for your records, and return the completed form.
BENEFICARY CHANGE PROJECT
L the undersigned policyowner, do hereby request the Company to revoke all prior beneficiary designations and national methods of settlement, if any, and change the beneficiary of held policy as follows: Primary Beneficiary (or Beneficiaries), if being:
| Name | Releasing | Direct Address (Ck)/State / In | | :--: | :--: | :--: | | | | | | | | | | | | |
One year to Containers Beneficiary for Beneficiaries The provisions in the Beneficiary change, take processable over any period, provisions in that policy which establish a beneficiary. Unless otherwise proved, it does not know what be paid in a short form. When more than one primary beneficiary is named, payment shall be made alone and alone, which is also part of survivor, unless otherwise provided (above 51 ha also applies when more than one Containers Beneficiary is named). If no beneficiary survives, the insured, the policy proceeds will be paid to the insured's estate. Certain payment shall by recording the insurment, the Company hereby's power, that any provision of the Policy, re-taining the policy to be submitted to the Company, is a uniform among all changes of beneficiary. Overcut be, indeed, in the description of the new beneficiary (or beneficiaries) shall become effective as for the date of the request for such change, provided, however, the request must be and received and recorded by the Company. Any payment made by the Company prior to such receipt and recording shall constitute proper whole and absolute payment and shall be made the Company from tabby. If so, it is to trust the insur-
Beneficiary, if named, the Company, may make payment for the tried to the rrocled re-tain, having to determine whether a trust is to affect, and shall not be required to take after the application of the proceeds in the hands of the trust or the trustee.
Understand that this Beneficiary Change, after it has been recorded by the Company, will take effect as of the date. I eximed the re-used. If further understand and agree that any payment made prior to the receipt and recording of this Beneficiary Change will be effected.
Expertise of Primary Insured
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1 STONEBRIDGE LIFE
Insurance Company 2700 West Plano Parkway - Plano, Texas 75075-8200
March 30, 2004
Important Insurance Information: Open immediately DARLENE INEZ TRAINOR 1004 JERNIQAN ST COMMERCE TX 75428
PETITIONER'S EXHIBIT
APR 202804
Policy/Certificate Number 7214784438 On the Life of: DARLENE INEZ TRAINOR
Dear DARLENE INEZ TRAINOR
In order to change the beneficiary of your policy/certificate, please provide the information requested below, make a copy of this form for your records, and return the completed form.
BENEFICIARY CHANGE REQUEST
I, the undersigned policyowner, do hereby request the Company to revoke all prior beneficiary designations and optional methods of settlement, if any, and change the beneficiary of said policy as follows: Primary Beneficiary (or Beneficiaries), if living:
| Name | Retationstio | Street Address, City, State, 210 | | :--: | :--: | :--: | | Robert Vakik | B.O.F. 1 e.M. | 1040 Jecmber St. Commetre 757508 | | E. N. V. Vakik | | 2665 F.M. 2063 RionideTiens |
Otherwise to Contingent Beneficiary (or Beneficiaries)
The provisions in the Beneficiary Change take precedence over any printed provisions in the policy which establish a beneficiary. Unless otherwise provided above, the proceeds shall be paid in a lomp sum. When more than one primary beneficiary is named, payment shall be made share and share alike, to survivors of survivor, unless otherwise provided above. This also applies when more than one Contingent Beneficiary is named. If no beneficiary survives the insured, the policy proceeds will be paid to the insured's estate. I hereby request, and by receluting this insurument the Company hereby agrees, that any provision of the policy requiring the policy to be submitted to the Company for endorsement of change of beneficiary thereon be waived. The designation of the new beneficiary (or beneficiaries) shall become effective as of the date of the request for such change, provided, however, the request must be first received and recorded by the Company. Any payment made by the Company prior to such receipt and recording shall constitute proper, whole and absolute payment and shall discharge the Company from liability. If a trust or trustee beneficiary is named, the Company may make payment to the trust or the trustee without having to determine whether a trust is in effect, and shall not be required to look after the application of the proceeds in the hands of the trust or the trustee.
I understand that this Beneficiary Change, after it has been recorded by the Company, will take effect as of the state-I signed the request. I further understand and agree that any payment made prior to the receipt and recording of this Beneficiary Change will be affected.
Signature of Primary Insured
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D arlem I Trianor, Declarant
D arlem I TrianorTestatrix
D arlem I Trianor, Testatrix
Darlene I. Trainor, Declarant
Applicant
Structure of Primary Insured
D arlem I Trianor
Date
Data