Qunicy K.A. Sintim and Shirley H. Mills N/K/A Shirley H. Sintim v. Michele Larson and Brian Larson ( 2015 )

ACCEPTED
14-14-00896-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
9/8/2015 10:53:41 PM
CHRISTOPHER PRINE
CLERK
14-14-00896-CV
_____________________________________________________________
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
14TH JUDICIAL DISTRICT 9/8/2015 10:53:41 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
_____________________________________________________________
QUINCY K.A. SINTIM and SHIRLEY H. MILLS n/k/a SHIRLEY H.
SINTIM,
Appellants
v.
MICHELE LARSON and BRIAN LARSON,
Appellees.
___________________________________________________________
On Appeal from the 152nd District Court
Harris County, Texas
Cause Number 2002-40624A
_____________________________________________________________
REPLY BRIEF OF APPELLANTS
_____________________________________________________________
James Okorafor
SBN 15241710
10101 Fondren Rd. Suite 260
Houston, Texas 77096
Tel: (713) 839-9700
Email: laws@joolaws.com
Attorney for Appellants
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Identity of Parties and Counsel
Appellants
Quincy K.A. Sintim
Shirley H. Mills n/k/a Shirley H. Sintim
Represented by: James O. Okorafor
SBN 15241710
10101 Fondren Rd. Suite 260
Houston, Texas 77096
Telephone: (713) 839-9700
Email: laws@joolaws.com
__________________________________
Appellees
Michelle Larson
Brian Larson
Represented by: David W. Showalter
SBN 18306500
1117 FM 359 Rd. Ste 200
Richmond, Texas 77406
Tel: (281) 341-5577
Fax: (281) 762-6872
Email: david@showalterlaw.com
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Tables of Contents
Identity of Parties and Counsel…………………………………………….2
Index of Authorities……………………………………………………...4, 5
REPLY TO:
Reply to Statement of Jurisdiction:…………………………………6
Appellees’ Responsive Issue 1:……………………………………..8
Appellees’ Responsive Issue 2:…………………………………….11
Appellees’ Responsive Issue 3:…………………………………….13
Conclusion………………………………………………………………...16
Prayer……………………………………………………………………...17
Certificate of Compliance…………………………………………………17
Certificate of Service……………………………………………………...17
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Index of Authorities
Cases
Arenivar v. Providian Nat’l Bank, 23 S.W.3d 496 (Tex. App. –Amarillo
2000, no pet.)………………………………………………………………10
Benson v. Greenville Nat’l Exchange Bank, 253 S.W.2d 918 (Tex. App.
1952)……………………………………………………………………….12
Boggess v. Howard, 40 Tex. 153……………………………………….….11
Bourn v. Robinson, 49 Tex. 157 S.W. 873 (Tex. Civ. App. 1908)………...11
Blake v. Dorado 211 S.W.3d 429 (Tex. App. El Paso 2006)………………14
City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000)........14
Fellows v. Adams, No. 01-06-00924-CV, 2007 WL 3038090 (Tex. App. –
Houston [1st Dist] Oct. 18, 2007, no pet.)…………………………………...9
First Nat’l Bank v. Shockley, 663 S.W.2d 685 (Tex. App. –Corpus Christi
1983, no writ)………………………………………………………………..9
Folsom Inv., Inc. v. Troutz, 632 S.W.2d 872 (Tex. App. –Fort Worth
1982)…………………………………………………………………………9
Henry S. Miller Co. v. Hamilton, 813 S.W.2d 631 (Tex. App. – Houston [1st]
1991, no writ)……………………………………………………………..…9
In Re Amaya, 34 S.W.3d 358 (Tex. App. Waco, 2001)……………………14
In Re American Optical Corp., 988 S.W.2d 711 (Tex. 1998)……………...13
In Re Alford Chevrolet -Geo, 997 S.W.2d 173, 181 (Tex.1999)…………..13
4
Jackson v. Gutierrez, 77 S.W.3d 898, 904 (Tex. App. –Houston [14th Dist.]
2002, no pet.)………………………………………………………………...9
Metcalf v. Tavlor, 708 S.W.2d 57 (Tex. App. – Fort Worth 1986, no
writ)……………………………………………………………………….....9
Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984)……………..9
Pfeuffer v. Werner, 27 Tex. Civ. App. 288, 65 S.W. 888 (Tex. App. 1901,
writ denied)………………………………………………………………...12
Renteria v. Trevino, 79 S.W.3d 240 (Tex. App. –Houston [14th Dist.] 2002,
no pet……………………………………………………………….............10
Swinnea v. Flores, no. 07-07-0060-CV, 2008 WL 1848203 (Tex. App. –
Amarillo Apr. 25, 2008, no pet.)…………………………………………….9
South Tex. Development Co. v. Martwick, 328 S.W.2d 230 (Tex. Civ. App.
Waco 1959)………………………………………………………………….8
Tex. Ass'n of Business v. Air Control Bd., 852 S.W.2d 440 (Tex. 1993)…15
Statutes and Rules
Texas Property Code Chapter 41…………………………...………...……12
Texas Property Code Chapter 42 ………………………………………….12
Texas Rules of Civil Procedure, Rule 243…………………………………..9
Texas Rules of Civil Procedure, Rule 301…………………………………..7
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APPELLANTS’ REPLY BRIEF
In reply to Appellees’ Brief, Appellants show the following as to each
of Appellees’ Responsive Issues:
REPLY TO STATEMENT OF JURISDICTION:
The Appellees’ Statement of Jurisdiction is incorrect and misleading.
Their conclusion that “this Court lacks jurisdiction to consider this appeal” is
wrong as a matter of law and cannot divest this Court of its jurisdiction.
There is no authority for the conclusion that this Court has no jurisdiction to
review the trial court’s decision that the dormant judgment is valid.
Regarding the default judgment, Appellees severally mischaracterize
the record. It is incorrect that Appellants “never secured a hearing by the
Trial Court………” regarding their timely filed Motion for New Trial, they
did. Appellants timely filed a Motion for New Trial, a Supplement to their
Motion for New Trial and a POST HEARING brief relating the Motion for
New Trial. CR pg. 39-42; 64-69 and 70-73. To now blame Appellants for
the failure or refusal of the trial judge to rule on the Motion for New Trial
serves no useful purpose.
Additionally the default judgment is so offensive to our sense and
system of justice that equity and justice demands its invalidation regardless
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of procedural hurdles. The law, like the Sabbath, is made for Man and not
vice versa and a judgment, which is so intrinsically unjust, cannot be
sustained. For example, the judgment does NOT conform to the pleadings
and the evidence as required by TEX. R. CIV. P. 301. No amount of money
is pled in the pleadings and assuming arguendo there was a hearing on
damages, no amended pleadings were filed to satisfy the requirements of
TEX. R. CIV. P. 301. The causes of actions pled were not sustainable; a
DTPA claim requires a 60 days notice to the non-claiming party. This was
NOT done. As judicially admitted in Appellees Original Petition, the alleged
negligent inspection was by their agent, George W. Munns. For Appellees to
be awarded a judgment of $109,173.00 for a house they paid around
$80,000.00 for has no legal basis. Regardless of whether The Sintims filed
an Answer, it was/is impossible to adduce evidence that The Sintims should
be punished with an award of $218,000.00 for the negligence of Appellees
(Larson’s) agent(s). The Larsons, as principals, are responsible for the
conduct of their agents. Further, an attorney fee award of $131, 000.00 in
2002 dollars for filing an Original Petition, Motion for Default Judgment
and attending ONE hearing was/is not customary in 2002 or now in Harris
County, Texas. Assuming without conceding that it amounted to 10 billable
hours, the award would still be equal to $13,100.00 per hour in 2002 dollars.
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A plaintiff still has the burden of proof even in a default judgment
proceeding. There is NO IOTA of evidence to support either the causes of
action or the damages awarded for the unsustainable causes of action. The
law is an honorable profession, the last hope of the common man. This Court
should NOT uphold this misuse and abuse of the law and the legal process.
Equity and justice demands no less.
APPELLEES’ RESPONSIVE ISSUE 1:
In addition to re-urging the matters previously states in Appellant’s
Brief and in reply to Appellees’ Responsive Issue 1, Appellant shows the
following:
A. Fraud
“Fraud vitiates every transaction tainted by it even the solemn
judgments of Courts of record.” South Tex. Development Co. v. Martwick,
328 S.W.2d 230 (Tex. Civ. App. Waco 1959), writ refused n.r.e., (Mar. 16,
1960). The fraud in the underlying judgment is so evident that the court
should deem that the judgment is void. First and foremost the judgment in
the underlying case does not match the trial pleadings. (See CR at 4-15 and
CR 29-31). Further, the trial court pleadings raised a DTPA cause of action
however; the Appellants’ were never given the statutorily required 60-day
notice under the DTPA.
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In the case of unliquidated damages a hearing was necessary for the
Appellees to prove their damages. TEX. R. CIV. P. 243 requires that a court
hear evidence of unliquidated damages. (Morgan v. Compugraphic Corp.,
675 S.W.2d 729, 731 (Tex. 1984); see also Swinnea v. Flores, No. 07-07-
0060-CV, 2008 WL 1848203, at *2 (Tex. App.—Amarillo Apr. 25, 2008,
no pet.); Fellows v. Adams, No. 01-06-00924-CV, 2007 WL 3038090, at *3
(Tex. App.— Houston [1st Dist.] Oct. 18, 2007, no pet.); Jackson v.
Gutierrez, 77 S.W.3d 898, 904 (Tex. App.—Houston [14th Dist.] 2002, no
pet.)). When damages are unliquidated, a plaintiff is required to prove the
connection between the liability and the injury, despite the defendant’s
default. Henry S. Miller Co. v. Hamilton, 813 S.W.2d 631, 634 (Tex. App.—
Houston [lst Dist.] 1991, no writ) (in DTPA case, plaintiffs required to show
extent of defaulting defendant’s knowledge of any flooding to be entitled to
additional damages). The standard of proof required in a default judgment
case is the same as that in contested cases. Folsom Inv., Inc. v. Troutz, 632
S.W.2d 872, 876 (Tex. App.—Fort Worth 1982, writ ref’d n.r.e.).
Furthermore, exemplary damages would be in the nature of
unliquidated damages and therefore would need to be supported by evidence
introduced at the hearing. First Nat’l Bank v. Shockley, 663 S.W.2d 685, 689
(Tex. App. -Corpus Christi 1983, no writ); see also Metcalf v. Tavlor, 708
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S.W.2d 57, 59 (Tex. App.—Fort Worth 1986, no writ) (default judgment set
aside because no evidence produced from which amount of punitive
damages could be determined); Arenivar v. Providian Nat’l Bank, 23
S.W.3d 496, 498 (Tex. App.—Amarillo 2000, no pet.).
The docket sheet in this case merely states that there was a hearing
held on unliquidated damages, but there is NO evidence in the record
regarding what proof was offered or admitted to prove up the damages.
There is nothing from the record to disprove the assumption that the trial
judge merely signed and entered a default judgment prepared by the Larsons
even though there were no amounts pled and no evidence to support the
amounts in the judgment.
Therefore, there exists a sufficiency of evidence issue with the
underlying judgment. If the record reveals that the evidence did not support
the damages awarded in a default judgment the judgment must be vacated.
Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex. App.—Houston [14th Dist.]
2002, no pet.
Furthermore, the docket sheets are incomplete/inaccurate as they do
mention or include the hearing on Appellants Motion for New Trial.
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APPELLEES’ RESPONSIVE ISSUE 2:
In addition to re-urging the matters previously states in Appellant’s
Brief and in reply to Appellees’ Responsive Issue 2, Appellant shows the
following:
A. Defective Processes
The Appellees writ of execution itself was/is prima facie defective at
the time of its preparation. It referred to and was predicated on an
inapplicable Court term and therefore not applicable to the default judgment.
This is an “irregularity in the issuance of execution”. See Boggess v.
Howard, 40 Tex. 153. Those who come to equity should come with clean
hands. The Larsons default judgment is based on a late filed answer by the
Sintims. If this is overlooked and the Appellees are allowed to recover
approximately $400,000.00 for a house they only paid $80,000.00 for they
would recover a 500% profit margin.
Furthermore, the Appellees are required to serve the Appellants with
the Writ of Execution. However this never occurred. The presumption of
service has been rebutted by the Sintims and this renders the Writ improper
at least with respect to service. This indicates a lack of diligence and good
faith with respect to the issuance and service of the Writ.
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B. Lack of Diligence / Good Faith
Both parties in this appeal agree that issuance of a writ of execution is
more than a mere clerical preparation. Issuance requires that the writ be
delivered to an officer for enforcement. Bourn v. Robinson, 49 Tex. 157, 107
S.W. 873, 875 (Tex. Civ. App. 1908). Furthermore, issuance of a writ of
execution is not sufficient if there is no diligence or there is a lack of good
faith. Pfeuffer v. Werner, 27 Tex. Civ. App. 288, 65 S.W.888, 889 (Tex.
App. 1901, writ denied). See also Benson v. Greenville Nat’l Exchange
Bank, 253 S.W.2d 918, 926 (Tex. App. 1952).
The record is void of any attempts made my Appellee to identify non-
exempt property, which could possibly lead to any expectation of recovery.
This shows a lack of diligence in the Appellee’s search for recoverable
property and a lack of good faith when delivering the writ to the officer,
because there was no reasonable expectation of recovery.
The Texas Property Code in chapters 41 and 42, list property
designated as exempt from judgments. Section 41.001 of the Texas Property
Code exempts a person's homestead from seizure by creditors. Property
Code sections 42.001 and 42.002 exempt certain personal property from
seizure by creditors. The attempt by the Appellees to execute a writ on the
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Sintims’ homestead was impermissible as a matter of law. This alone
demonstrates a lack of diligence and good faith.
The Court should deem the Appellees actions to execute the writ and
keep the judgment alive demonstrate a lack of good faith and rise to the level
of malice and a continued pattern of harassment towards Appellants. The
Appellees have waited until the last hour to attempt and revive the default
judgment in order to continue and pursue a judgment, which shocks the
conscious.
APPELLEES’ RESPONSIVE ISSUE 3:
In addition to re-urging the matters previously states in Appellant’s
Brief and in reply to Appellees’ Responsive Issue 3, Appellant shows the
following:
A. Abusive Discovery
First and foremost Appellants’ feel compelled to bring to the Court’s
attention that Appellees have conducted several rounds of post judgment
discovery since 2004 (Depositions and Post Judgment Discovery were
conducted in 2004, 2010, 2013 and 2014). The current motive of the
Appellees in the trial Court is not to conduct discovery in order to collect on
their judgment but to harass Appellants. The discovery for which the trial
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Court issued sanctions for was blatantly
voluminous and excessive (See CR
SUP 50 – 166).
Texas law has long held that, discovery must be reasonably tailored to
include only matters relevant to the case. In Re American Optical Corp., 988
S.W.2d 711 (Tex. 1998). In the Post Judgment context discovery must be
tailored in such a way that the party propounding the discovery expects the
responses to lead to recoverable assets. The current discovery contains
hundreds of questions and repeats questions, which have been answered over
the 10 plus years since the Default Judgment has been signed. Discovery
cannot be used as a fishing expedition or impose an unreasonable discovery
expense on an opposing party. In re Alford Chevrolet-Geo, 997 S.W.2d 173,
181 (Tex. 1999).
It is undisputed that the Appellants have responded to previous post
judgment discovery request by the Appellees. Therefore, the current
discovery by Appellees is cumulative, abusive, harassing and not calculated
or directed at identifying and locating assets, which may be subject to
execution to satisfy the default judgment. This is the applicable standard as
set out in cases such as, In re Amaya, 34 S.W.3d 358 – 359 (Tex. App. –
Waco, 2001). Since, the Sintims are individuals, post judgment discovery is
14
required to be directed at unencumbered assets, which are not exempt from
execution.
B. No Evidence of Fees of Expenses
Appellee’s own brief acknowledges the fact that “The award of
expenses imposed as a discovery sanction is not a penalty, but functions to
reimburse the movant for expenses incurred in obtaining an order to compel
discovery. Blake v. Dorado 211 S.W.3d 429 (Tex. App. El Paso 2006)”
In general, the reasonableness of attorneys' fees is a question of fact.
City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000).
In the Appellee’s own motion to compel discovery responses (See CR SUP
5 – 11) Appellee’s attorney simply states his expenses are $3,500.00 without
the addition of any affidavits or explanation of fees to prove up such fees.
There are no affidavits by any attorney detailing the work done, by whom,
when and at what rate. Therefore, there is no basis for the trial Court to
award fees except based on speculation. Without testimony of the fees and
expenses the award is void as pleadings are not evidence.
C. Timeliness
A detailed examination of events in this case shows that the trial Court
determined it had subject matter jurisdiction over the discovery dispute on
October 9, 2014 and within 6 days on October 15, 2014, issued sanctions
15
against Appellant. Once the trial Court determined it had subject matter
jurisdiction over the dispute the Court should have allowed more time for
Appellant’s to properly respond to the outstanding discovery, because
subject-matter jurisdiction is essential to the authority of a court to decide a
case and is never presumed. Tex. Ass'n of Business v. Air Control Bd., 852
S.W.2d 440 at 443–44 (Tex. 1993). Therefore, until the Court issued an
order stating its jurisdiction over the matter the Appellant’s were not in
defiance of a proper Court order. If the Default Judgment is dormant the trial
Court lacks jurisdiction and cannot enter any orders. Until and unless this
Court resolves that issue, it is not clear that the trial court can enter any
orders subsequent to December 2012. For reasons previously stated,
assuming the trial Court has jurisdiction to enter post judgment orders, the
discovery is still abusive and not calculated to lead to relevant evidence.
CONCLUSION
Appellees default judgment was/is ab initio defective. It is void or is
voidable. Assuming its validity, the default judgment is dormant and not
enforceable. Attempts to revive the dormant judgment were defective and as
of today, Plaintiffs have not met their burden to show that the dormant
judgment was properly revived, including the proper preparation and
delivery of the writ of execution, the service to the Sintims and the exercise
16
of “due diligence” in its enforcement. For these reasons, the trial Court lacks
subject matter jurisdiction with respect to the dormant judgment.
PRAYER
For the reasons state herein, each of Appellants’ issues on appeal
should be granted.
Respectfully submittd,
/s/ James Okorafor
James Okorafor
SBN 15241710
10101 Fondren Rd. Ste 260
Houston, Texas 77096
Tel: (713) 839-9700
Attorney for Appellants
CERTIFICATE OF COMPLIANCE
Appellants certify that in accordance with Tex. R. App. That the
preceding reply brief excluding those sections not calculated as to length is
comprised of 2,354 words.
/s/ James Okorafor
James Okorafor
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing
instrument has been served on all counsel who have appeared herein by
electronic transmission.
/s/ James Okorafor
James Okorafor
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