Charles G. Shook v. Rick Hall and Tommy Yocham, Individually and Derivatively on Behalf of Flare Well Testers, Inc. ( 2015 )


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  •                                                                                                 ACCEPTED
    14-15-00534-CV
    FOURTEENTH COURT OF APPEALS
    HOUSTON, TEXAS
    6/24/2015 11:02:04 AM
    CHRISTOPHER PRINE
    CLERK
    No. 14-15-00534-CV
    FILED IN
    14th COURT OF APPEALS
    HOUSTON, TEXAS
    IN THE COURT OF APPEALS FOR THE               6/24/2015 11:02:04 AM
    FOURTEENTH DISTRICT OF TEXAS                 CHRISTOPHER A. PRINE
    Clerk
    CHARLES G. SHOOK,
    Appellant,
    vs.
    RICK HALL and TOMMY YOCHAM, Individually
    and Derivatively on Behalf of Flare Well Testers, Inc.,
    Appellees.
    On Interlocutory Appeal from the 127th Judicial District Court
    of Harris County, Texas, Hon. R.K. Sandill, Presiding
    Trial Court Cause Number 2015-28269
    APPELLANT CHARLES G. SHOOK’S SUR-REPLY IN SUPPORT OF EMERGENCY
    RESPONSE AND REQUEST FOR MORE TIME TO RESPOND TO APPELLEES’
    EMERGENCY MOTION FOR CONTEMPT AND TO REFER CONTEMPT
    PROCEEDINGS TO TRIAL COURT
    MCCATHERN, P.L.L.C.                                    STOGER LAW FIRM
    Rodney L. Drinnon                                      Jonathan S. Stoger
    Texas Bar No. 24047841                                 Texas Bar No. 00797504
    rdrinnon@mccathernlaw.com                              jstoger@stogerlaw.com
    Nicholas Zugaro                                        2301 Morse
    Texas Bar No. 24070905                                 Houston, Texas 77019
    nzugaro@mccathernlaw.com                               Tel: (713) 522-2848
    2000 W. Loop South, Suite 2100                         Fax: (713) 522-1120
    Houston, Texas 77027
    Tel: (832) 533-8689
    Fax: (832) 213-4842
    Counsel for Appellant and Accused Contemnor Charles G. Shook
    TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
    Appellant and Accused Contemnor, Charles G. Shook, files this sur-reply in
    support of his initial, emergency response to Appellees, Rick Hall and Tommy
    Yocham, Individually and Derivatively on Behalf of Flare Well Testers, Inc.’s,
    Emergency Motion for Contempt and Request to Refer Contempt Proceedings to the
    District Court.
    I. Request for Time to Fully Respond to Motion
    There is no compelling reason for Appellees to seek emergency relief. A
    charge of contempt is quasi-criminal in nature and subjects the contemnor to the very
    real possibility of incarceration. A contemnor has a due process right under the
    United States and Texas Constitutions to notice and an opportunity to be heard and
    an adequate time to respond. See Ex parte Johnson, 
    654 S.W.2d 415
    , 420 (Tex.
    1983); Ex parte Gordon, 
    584 S.W.2d 686
    , 688 (Tex. 1995). The undersigned have
    represented clients in contempt proceedings before and have yet to participate in a
    case, other than this one, where contempt was sought on an emergent basis. The
    underlying facts and circumstances concerning the contempt charge will not change
    if Appellant is given sufficient time to respond, and he asks for at least the ten-day
    period under TEX. R. APP. P. 10.3(a) to respond to appellate motions.
    II. Filing Emergency Motions is Appellees’ Calculated Strategy
    Throughout the District Court proceedings, Appellees have filed nearly every
    1
    motion on an emergency basis, as they do here. This has the effect of depriving
    Appellant of a full opportunity to brief the issues and respond. Appellees’ emergency
    motion here was filed at 9:06 a.m. on Monday, June 22, 2015, at a time when
    Appellant’s counsel were working on other matters. Because the motion was filed
    on an emergency basis, counsel had to put aside important work for other clients,
    that was also subject to pressing deadlines, to attempt to draft a response. To show
    the Court that a response would be forthcoming, counsel filed an initial, emergent
    response and requested the normal ten days to file a complete response. To fully
    respond and represent their client’s interests, the undersigned need time to research
    the legal issues and meet with their client.
    III. Appellant Strongly Denies Appellees’ Contempt Charges
    Appellees misrepresent Appellants’ position in suggesting that he admits to
    the charges of contempt. Appellant strongly denies the charges lodged against him.
    Despite Appellees’ characterization of the facts, the District Court has never found
    him in contempt of court. No contempt citation has ever been entered against him.
    Appellant strongly denies that he violated the terms of the Temporary
    Injunction Order and would, if required, mount a defense that any funds transferred
    were from a different company than the one in the Temporary Injunction Order.
    At this point, Appellant should not be required to put on his entire defense to
    respond to Appellees’ emergency motion. He should be entitled to at least ten days
    2
    to respond to the motion.
    IV. The District Court Proceeded Forward on Contempt Without Jurisdiction
    It stands undisputed by Appellees that the District Court proceeded forward
    with their contempt motion without any jurisdiction to do so. The District Court did
    not care about the lack of jurisdiction and encouraged Appellant to file a writ of
    mandamus if he was unhappy. A three-hour contempt hearing, in the absence of
    jurisdiction, then went forward over Appellant’s objection.
    V. Judicial Economy Would Best Be Served by Maintaining Jurisdiction
    One of the issues Appellant intends to raise in the instant interlocutory appeal
    and in response to contempt is that the underlying Temporary Injunction Order is
    void. A party cannot be held in contempt for violating a void order. Ex parte Shaffer,
    
    649 S.W.2d 300
    , 301-02 (Tex. 1983). Despite Appellees’ disparagement of the
    “Great Writ” of Habeas Corpus, it is the device used to challenge unlawful contempt
    citations, include those based on a void order. See 
    id. By maintaining
    jurisdiction
    over the contempt proceeding, either directly or by making only a limited referral to
    the District Court for findings and recommendations, see TEX. R. APP. P. 29.4(b),
    this Court can consider voidness in both the interlocutory appeal and the contempt
    proceeding, and it would prevent the necessity of filing a habeas corpus petition.
    Appellant intends to raise numerous voidness arguments. Some errors will
    only be apparent from the reporter’s record. Errors apparent on the face of the record
    3
    include that Appellees did not secure a Writ of Injunction from the District Clerk
    after the Temporary Injunction Order was signed, or serve the non-existent Writ on
    Appellant. See Docket Sheet, Ex. 1 (no Writ of Injunction appears and no return of
    service for a Writ appears); see also TEX. R. CIV. P. 687 - “Requisites of Writ” (the
    Writ of Injunction must be prepared by the clerk and include the clerk’s signature
    and seal); TEX. R. CIV. P. 688 - “Clerk to Issue Writ” (“When the petition, order of
    the judge and bond have been filed, the clerk shall issue the temporary restraining
    order or temporary injunction, as the case may be, in conformity with the terms of
    the order, and deliver the same to the sheriff or any constable….”); TEX. R. CIV. P.
    689 – “Service & Return” (“The officer receiving a writ of injunction shall indorse
    thereon the date of its receipt by him, and shall forthwith exercise the same by
    delivering to the party enjoined a true copy thereof. The officer must complete and
    file a return in accordance with Rule 107.”).
    There are many other errors with the Temporary Injunction Order and
    proceeding, but at this point, Appellant should not be required to mount his entire
    defense on an emergency basis and asks for at least ten days to prepare his response.
    PRAYER
    For these reasons, Appellant and Alleged Contemnor, Charles G. Shook,
    continues to pray that the Court set a reasonable time to respond to Appellees, Rick
    Hall and Tommy Yocham, Individually and Derivatively on Behalf of Flare Well
    4
    Testers, Inc.’s, emergency motions for contempt and to refer contempt proceedings
    to the District Court, that the Court deny the motions in all things, and that Appellant
    be granted any further he is entitled to, including court costs.
    Respectfully submitted,
    /s/ Rodney L. Drinnon                           /s/ Jonathan S. Stoger
    Rodney L. Drinnon                               Jonathan S. Stoger
    Texas Bar No. 24047841                          Texas Bar No. 00797504
    rdrinnon@mccathernlaw.com                       jstoger@stogerlaw.com
    Nicholas Zugaro                                 Stoger Law Firm
    Texas Bar No. 24070905                          2301 Morse
    nzugaro@mccathernlaw.com                        Houston, Texas 77019
    McCathern, P.L.L.C.                             Tel: (713) 522-2848
    2000 W. Loop South, Suite 2100                  Fax: (713) 522-1120
    Houston, Texas 77027
    Tel: (832) 533-8689
    Fax: (832) 213-4842
    Attorneys for Appellant and
    Alleged Contemnor Charles G. Shook
    CERTIFICATE OF COMPLIANCE
    I certify under TEX. R. APP. P. 9.4 that this Response, excluding those
    portions that do not count towards the total limit, contains 1,065 words, as measured
    by the word count feature in Microsoft Word 2013. The font used is Times New
    Roman, 14-Point for the main text, and Time New Roman, 12-Point for the footnote
    text.
    /s/ Rodney L. Drinnon
    Rodney L. Drinnon
    5
    CERTIFICATE OF SERVICE
    I certify that on June 24, 2015, I served a true and correct copy of this Sur-
    Reply on all counsel of record, as reflected below, via e-service through
    efile.txcourts.gov.
    /s/ Rodney L. Drinnon
    Rodney L. Drinnon
    Ashish Mahendru
    amahendru@thelitigationgroup.com
    Darren A. Braun
    dbraun@thelitigationgroup.com
    Mahendru, P.C.
    639 Heights Boulevard
    Houston, Texas 77007
    Attorneys for Appellees
    Rick Hall and Tommy Yocham,
    Individually and Derivatively on Behalf
    of Flare Well Testers, Inc.
    6
    

Document Info

Docket Number: 14-15-00534-CV

Filed Date: 6/24/2015

Precedential Status: Precedential

Modified Date: 9/30/2016