Case Information
*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 4/24/2015 11:59:24 AM CATHY S. LUSK Clerk *1 ACCEPTED 12-14-0030-cv TWELFTH COURT OF APPEALS TYLER, TEXAS 4/24/2015 11:59:24 AM CATHY LUSK CLERK
No. 12-14-00300-CV COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS TYLER, TEXAS
IN THE ESTATE OF RODNEY JOE KNIGHT, DECEASED On Appeal from the County Court at Law, Cherokee County, Texas, Cause No. 12025, The Honorable Kelley D. Peacock, presiding APPELLANT’S REPLY BRIEF Bill Pedersen, III Texas Bar No. 24030011 Email: bill@bpedlaw.com 2501 Oak Lawn Avenue Suite 380, LB - 50 Dallas, Texas 75219 Tel. (214) 630-4554 Fax. (214) 630-9264 Attorney for Appellant, Natosha Moore-Knight *2 TABLE OF CONTENTS
Page INDEX OF AUTHORITIES ...................................................................................... 3
RESPONSE TO APPELLEE’S BRIEF ..................................................................... 4
PRAYER .................................................................................................................... 7
CERTIFICATE OF COMPLIANCE ......................................................................... 8
CERTIFICATE OF SERVICE .................................................................................. 8 *3 INDEX OF AUTHORITIES
Page C ASES
Williams v. Bank One, Texas, N.A .,
15 S.W.3d 110 (Tex. App.-Waco 1999, no pet.) ……………..…………..………4
R ULES
Tex. R. App. P. 9.4(i)(1) ............................................................................................ 8
Tex. R. App. P. 9.4(i)(2)(C) ....................................................................................... 8
Tex. R. Civ. P. 245 ..................................................................................................... 4
Tex. R. Civ. P. 252 ..................................................................................................... 4 *4
RESPONSE TO APPELLEE ’ S BRIEF Appellant seeks to respond to Appellee’s Brief. Appellant will not repeat arguments or points raised and argued in Appellant’s Brief, only address certain
specific claims and arguments made by the Appellee.
Appellee seems to have two main points: (1) Appellant’s Motion for Continuance was not ruled on, but if it was Appellant did not preserve error, and
(2) the absence of any additional evidence being heard on the merits of this lawsuit
are due to Appellant’s lack of diligence.
“N OSTRADAMUS ” DEFENSE The trial court in this case, following Appellant’s urging of her Motion for Continuance, heard testimony. R.R. vol. 2, pp. 5-6. The Texas Rules of Appellate
Procedure provide that a trial court may implicitly rule on a request, objection or
motion. Tex. R. App. 33.1(a)(2)(A), Williams v. Bank One, Texas, N.A ., 15 S.W.3d
110 (Tex. App.-Waco 1999, no pet.). Appellant urged her Motion to Continue the
hearing, the Court stated “I really feel like we need to hear this today,” and
testimony was heard. R.R. vol. 2, p. 5, lines 21-22. As discussed in Appellant’s
Brief, the trial court’s denial was an abuse of her discretion, violated Texas Rules
of Procedure 252 & 245, and denied Appellant due process.
Appellee then appears to argue that this Court should evaluate the trial court’s January 7 denial in light of the entire procedural history of the case, even
*5 that which occurred after January 7. This argument presumes the trial court to be
clairvoyant. Appellant would note that the Appellee cites to no authority that
would suggest that a denial of a motion to continue should be evaluated based on
what occurs after the denial. Appellee is attempting to create a duty of post-denial
diligence which does not exist.
A PPELLEE ’ S O BSTRUCTION Appellee is attempting to establish waiver, or a lack of diligence, on Appellant’s part, in the period between the only evidentiary hearing in this case
and the entry of the Judgment. Appellant does not believe that this argument has
any real basis in law, but will respond to it without conceding its logical soundness
or legal basis.
Appellant sought new counsel following the January 7 evidentiary hearing.
Appellee was aware of this no later than May 19, 2014, when undersigned counsel
filed a Motion for Substitution of Counsel. C.R. 99-103. Appellee opposed this
substitution, and the Motion was not granted until August 13, 2014. C.R 183.
Appellee’s counsel refused to “forward any documents” related to the litigation
until the Motion to Substitute was granted. C.R. 131. Despite this discourteous and
unprofessional obstruction, undersigned counsel did his best to represent his client
even before his substitution. *6 During this time period, when Appellee was fully aware that Appellant had new counsel, and refused to provide even a courtesy copy of any documents
related to the litigation, Appellee filed his “Motion to Dismiss Claims in Will
Contest.” C.R. 104-104-109. This pleading asserted that the issue of informal
marriage had been tried by consent during the January 7 hearing. Even before the
trial court could hold a hearing on Appellant’s Motion for Substitution, which
Appellee insisted upon, Appellant filed both a Response and a Supplemental
Response to this pleading. C.R. 143-163, 177-182. The Response noted the
communication problems briefly described above, specially excepted to the Motion
to Dismiss, and then addressed the merits of the Motion to Dismiss. C.R. 143-163.
Specifically, Appellant noted that the trial court had not ruled on the question of
informal marriage, and that no conventional trial on the merits had been held. Id .
The Supplemental Response was filed following a telephonic hearing on July 31.
C.R. 177. That was a conference held in chambers, and no record was made of that
conference. It is inaccurate, if not deliberately misleading, for Appellee’s Brief to
state “The Appellant never complained or denied that the issue of informal
marriage had been tried by consent on January 7, 2014 until this appeal.”
Appellee’s Brief, page 7.
The point of this procedural history is to point out that undersigned counsel wasn’t in the case until August 13, when the Court announced that it had already
*7 finally decided the question of common law marriage. R.R. vol. 3, pp. 14-15, lines
22-6. No opportunity existed for the Appellant to request a hearing or an
opportunity to present additional evidence, because Appellee wouldn’t even
“forward any documents” related to the case until the trial court granted
Appellant’s Motion to Substitute Counsel. C.R. 131. On the same date the trial
court granted Appellant’s Motion to Substitute, the trial court announced that the
case was over.
Appellee’s assertion that additional evidentiary hearings occurred is contrary to the record. The only time a witness was sworn, or anything other than lawyers’
arguments were heard, was on January 7, 2014.
P RAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
will reverse the Judgment of the Trial court, and remand this case to that Court for
further proceedings, so that Appellant may fairly litigate the existence of an
informal marriage.
Respectfully submitted, LAW OFFICE OF BILL PEDERSEN, III, PLLC By: /s/ Bill Pedersen, III Bill Pedersen, III
Texas Bar No. 24030011 Email: bill@bpedlaw.com 2501 Oak Lawn Avenue Suite 380, LB - 50 *8 Dallas, Texas 75219 Tel. (214) 630-4554 Fax. (214) 630-9264 Attorney for Appellant Natosha Moore-Knight CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Tex. R. App. P.
9.4(i)(2)(C) because it contains less than 7,500 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).
2. This brief complies with the typeface requirements of Texas Rule of
Procedure 9.4(e) because this brief has been prepared in a proportionally spaced typeface using “Microsoft Word 2010” in fourteen (14) point “Times New Roman” style font.
/s/ Bill Pedersen, III Bill Pedersen, III CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was forwarded to all counsel of record via electronic filing on this 24 th day of apRIL,
2015, as follows:
Wayne D. Haglund By facsimile and electronic filing
State Bar No. 08697500
Email: whaglund@haglundlaw.com
P.O. Box 713
107 West Kerr Avenue
Lufkin, Texas 75902
Tel. (936) 639-0007
Fax. (936) 639-0016
Attorney for Roy Knight
/s/ Bill Pedersen, III Bill Pedersen, III