in the Estate of John M. Houston ( 2018 )

ACCEPTED
05-17-00648-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/8/2018 11:49 AM
LISA MATZ
CLERK
NO. 05-17-00648-CV
In the
FILED IN
Fifth Court of Appeals 5th COURT OF APPEALS
Dallas, Texas DALLAS, TEXAS
____________________ 06/08/2018 11:49:00 AM
LISA MATZ
Clerk
LINDA HOUSTON, APPELLANT
VS.
EILEEN HOUSTON, APPELLEE
________________________________
APPELLANTS’ REPONSE IN OPPOSITION TO APPELLEE’S MOTION
FOR LEAVE TO FILE SURREPLY OR ALTERNATIVELY MOTION FOR
LEAVE TO FILE SUR SURREPLY
_________________________________
On Appeal from
Probate Court No. 1
Collin County, Texas
Cause No. PB 001-56605
TO THE HONORABLE JUDGE OF THIS COURT:
NOW COME, Linda Houston (“Appellant”) to submit this Response in
Opposition to Eileen Houston (“Appellee”) Motion for Leave to file a Surreply. In
support of this Response, Appellant respectfully shows the Court as follows:
I. LEGAL AND FACTUAL REASONS FOR OPPOSING MOTION FOR
LEAVE
1. Appellee’s Motion for Leave to File a Surreply Brief (the “Motion for
Leave”) fails to present this Court with good cause necessitating the
submission of a surreply. Appellee merely directs the Court to the
APPELLANTS’ REPONSE IN OPPOSITION TO APPELLEE’S MOTION FOR LEAVE 1
Surreply Brief itself attached to the Motion for Leave to support their
argument. Reliance on the Surreply in support of a Motion for Leave is
not the proper procedure for granting leave. Appellee’s Motion states
“in order to respond to new arguments asserted by Appellant” but does
not provide or identify any new arguements to be addressed. Appellee
should have provided some modicum of legal or factual reasoning with
the Motion for Leave which they have failed to do here. Appellee
further claims “to respond to new documents submitted by Appellant
in the Supplemental Clerk’s Record”; however, only one reference to
the Supplemental Clerk’s Record is made stating “Appellant is simply
wrong”. This is hardly a factual response to any Record reference, or
necessitates a surreply.
2. Texas Rules of Appellate Procedure do not expressly permit the filing
of a surreply brief by an Appellee; such filings are only permitted at
the court’s discretion. (See In re Estate of Washington, 289 S.W.3d
362, 370 (Tex. App. – Texarkana, 2009)(citing Tex. R. App. P. 38.1,
38.2, 38.3 and 38.7).
3. Under the STANDARDS FOR APPELLATE CONDUCT -
LAWYERS’ DUTIES TO THE COURT
Item 6. - “Counsel will not submit reply briefs on issues previously
briefed in order to obtain the last word.”
The Surreply Brief contains over 1065 words (out of certified
1635) specifically repeating the Appellee’s Response Brief.
Statements not duplicated have simply been re-worded repeating the
previous views. (not included in this word count)
APPELLANTS’ REPONSE IN OPPOSITION TO APPELLEE’S MOTION FOR LEAVE 2
4. The Motion for Leave is completely devoid of any reasoning
necessitating the submission of a surreply. Appellee provides no legal
or factual analysis indicating that the Appellants added new argument
in its Reply Brief necessitating a surreply. Nor does the Motion for
Leave provide a summary of Appellee’s argument to qualify the need
for a surreply. Instead, Appellee surreptitiously states the Court is
required to read the Surreply itself in order to glean the good cause for
its submission. From there, the Appellant is required to at least review
and analyze Appellee’s briefing which the Court has yet permitted to
be filed. Unfortunately, this has resulted in spending additional
resources, additional delay and incurring additional costs. Without
question, the Motion for Leave should be denied for failure to provide
any legal or factual reasoning for filing a surreply. However, to the
extent Appellant has been forced to review an unfiled surreply and file
this Response to the Motion for Leave, Appellee’s maneuvering
borders on sanctionable conduct.
5. Finally, the denial of the Motion for Leave would not prejudice the
Appellee because the Appellee has already had the opportunity to
present this same information, without overwhelming the process with
a surreply.
Furthermore, this matter constitutes an Estate Accounting and Trust Accounting;
issues which were briefed through Appellant’s Brief and Appellants’ Reply Brief.
The Appellee fails to address these issues in their Response Brief and again fails to
address the issues in the attempt to surreply. Appellee also repeats a reference to
APPELLANTS’ REPONSE IN OPPOSITION TO APPELLEE’S MOTION FOR LEAVE 3
APPELLANTS’ REPONSE IN OPPOSITION TO APPELLEE’S MOTION FOR LEAVE 4
Linda Houston
Pro Se
9804 Sota Grande
Plano, Texas. 75025
972-955-0370
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 8th day June, 2018, a true and correct
copy of the foregoing instrument is being served upon the parties listed below via
the Court’s electronic notification system and mail:
David B. Koch COATS❘ROSE, P.C
14755 Preston Road, Suite 600
Dallas, Texas 75254
(972) 788-1600 Telephone
dkoch@coatsrose.com
Attorneys for Appellee, Eileen Houston
APPELLANTS’ REPONSE IN OPPOSITION TO APPELLEE’S MOTION FOR LEAVE 5