Tarris Woods v. Sandra T. Kenner and Charles E. Twymon, Jr. ( 2015 )

ACCEPTED
01-14-01030-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/31/2015 10:47:02 AM
CHRISTOPHER PRINE
CLERK
NO. 01-14-01030-CV
TARRIS WOODS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
APPELLANT
3/31/2015 10:47:02 AM
V. CHRISTOPHER A. PRINE
Clerk
SANDRA T. KENNER AND CHARLES E. TWYMON, JR.
APPELLEE
Response to Appellee's on Appellant's
Motion to Abate and Remand
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES Appellant, Tarris Woods, makes this response to
Appellee's on Appellant's Motion to Abate and Remand and asks the
Court to Abate and Remand this case for the Execution of Findings
of Fact and Conclusion of law.
1.
1. Appellees cite this court to the Tex.R.Civ.P. 298 as
Authority for the denial of Appellant's motion to abate and that
Appellant should have made a request for additional findings and
conclusions.
2. Appellee's counsel submitted the Findings of Facts and
Conclusion of Law on December 18, 2014. (Attached hereto and
incorporated herein as Exhibit "A")
3. In Tex.R.Civ.P. 298 the first line clearly states the
following: "After the court files original findings and fact and
conclusions of law ...
" The rule did not make any provisions for the
opposing counsel to prepare the findings of fact and conclusions
of law, therefore rule 298 is not relevant in this matter based
on the evidence that the trial court did not prepare the finding
of facts and conclusion of law.
4. In the case of Heard v. City of Dallas, 456 S.W.2d 440,
445 (Tex.Civ.App.-Dallas 1970, writ ref'd n.r.e.) the court makes
the clear statement that "After the judge so files original
findings of fact and conclusions of law, either party may, within
five days, request of him Specified further, additional, or
amended findings" in the case at bar the trial court failed to
file the original findings of fact and conclusions of law.
II.
5. Appellees makes the statement that "The trial court's
findings of fact recite the Decedent's death, the execution of a
Will "with the formalities and solemnities required,"
The trial court did not make any such findings, the above
statement is misleading and appellee's counsel is not making the
above argument in good faith.
Appellees go on to say that "[t]he trial court concluded
that the Appellees had shown error its Judgment Declaring
Heirship, previously entered, and that the copy of the Decedent's
Will was entitled to probate." Again, the trial court made no
such findings.
6. In the case of In the Interest of R.D.Y., a child, 51
S.W.3d 314, 322 (Tex.App.-Houston [1st Dist.] 2001, pet denied)
the court stated that "A trial court is required to file findings
of fact and conclusions of law within 20 days after a timely
request is made."
III.
7. In the case of Nadolney v. Taub, 116 S.W.3d 273, 279
(Tex.App.-Houston [14th Dist.] 2003, pet. denied) the court set
out the Standard of Appellate Review when the trial court files
its findings of fact and conclusions of law.
8. "In support of his order granting Taub's petition for a
bill of review. A trial judge's findings of fact following a
hearing on a bill of review have the same force and effect as
jury findings. See: Hoover v. Sims, 792 S.W.2d 171,173 (Tex.App.-
Houston [1st Dist.] 1980, no writ). In the case at bar the
findings of fact was submitted by appellee's counsel.
9. Generally, a court will review a trial judge's findings
of fact in a bill of review proceeding using the same standards
we use in reviewing the sufficiency of the evidence to support a
jury's answer. See. id.
10. Since, appellee's counsel submitted the findings of
facts and conclusion of law then the sufficiency of the evidence
is only one sided from the appellee's stand point.
11. "These standards are well-established. When a party
challenges the legal sufficiency of the evidence supporting an
adverse findings on an issue on which it does not have the burden
of proof, that party must demonstrate on appeal that there is no
evidence to support the adverse finding ...
" "[W] e consider all the
evidence in the light most favorable to the findings, indulging
every reasonable inference in favor of the prevailing party."
12. If the issues requires some consideration of the merits
of the appeal, then this court would be considering the evidence
in light most favorable to the findings that was submitted by
appellee's counsel.
13. Appellant request that this appeal be abated and this
court direct the trial court to correct its error pursuant to
appellate rule 44.4 TEX.R.APP. P. 44.4 Acad Corp. v. Interior
Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 739 n. 1
(Tex.App-Houston [14th] 2000, no. pet.)
IV.
14. Appellant's request that this appeal be abated and this
Court direct the trial court to correct its error pursuant to
TEX.R.APP.P. 44.4
Prayer
15. For these reasons, Appellant's asks the Court to direct
the trial court to correct its error pursuant to TEX.R.APP.P.
44.4.
Respectfully submitted,
/S/ Douglas T. Godinich
Douglas T. Godinich
Texas Bar No 24007244
2727 Broadway
Galveston, Texas 77550
Tel: (409) 763-2454
Fax: (409) 763-4309
Attorney for Appellant Tarris Woods
Certificate of Service
A copy of this notice is being filed with the appellate
clerk in accordance with rule 25.1(e) of the Texas Rules of Civil
Procedure. I certify that a true copy of this Appellant's Motion
to Abate and Remand for the Execution of Findings of Fact and
Conclusion of law was served in accordance with rule 9.5 of the
Texas Rules of Appellate Procedure on each party or the attorney
for such party indicated below by method indicated.
/s/ Douglas T. Godinich
Douglas T. Godinich
By FAX TRANSMITTAL
Thomas W. McQuage
P.O. Box 16894
Galveston, Texas 77552
TEL: 409-762-1104
mcquage@swbell.net
EXHIBIT "A"
douglas godinich
From: No-Reply@eFileTexas.gov
Sent: Thursday, December 18, 2014 10:21 AM
To: dtglaw1@aol.com
Subject: eFileTexas.gov A- Notification of Service - 3529781
Notification of Service
Envelope Number: 3529781
This is a notification of service for the filing listed. Please click the link below to retrieve the submitted
document.
Case Style .Estate of Charles Edward Twymon, Sr., Deceased
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Filing Type Proposed Order
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Filed By :Thomas McQuage
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.Other Service Contacts not associated with a party on the case:
Service Contacts
Douglas Godinich (dtglaw1@aol.com)
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1
douglas godinich
From: No- Reply@eFiJeTexas.gov
Sent: Thursday, December 18, 2014 10:22 AM
To: dtgJaw1@aol.com
Subject: eFileTexas.gov A- Notification of Service - 3529818
Notification of Service
Envelope Number: 3529818
This is a notification of service for the filing listed. Please click the link below to retrieve the submitted
document.
Case Number .PR-0075144
Case Style
.__ .~.__ ~.~_ __h ' ._.._..-.
i Estate of Charles Edward Twymon, Sr.,.'_.._."
.~ __ .'__ '__~_'_ ._._ _ __ ._._ ~. __ ' ~_ ._._.,_, ",_" _._"_. .
Deceased
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Date/Time Submitted 12/18/2014 10:21 :51 AM
Filing Type ;Proposed Order
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Filed By
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.Thomas McQuage
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,Tarris L. Woods:
Service Contacts
tarris Woods (dtglaw1@aol.com)
:https:/Iefile.txcourts.govNiewServiceDocuments.aspx?ADM IN=O&SID=202dd90c- i
File Stamped
;ef6c-4456-9260-7 e7c354f2730&RI O=5b6c6665-e885-4209-age5-1 b882e344750 :
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1
No PR-0075144
IN THE ESTATE OF § IN THE PROBATE COURT
CHARLES EDWARD TWYMON, §
SR., § GALVESTON COUNTY, TEXAS
No. PR-007-3664
IN THE ESTATE OF § IN THE PROBATE
§
CHARLES EDWARD TWYMON, § COURT OF
SR.,
§
DECEASED § GALVESTON COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Findings of Fact:
1. On May 12, 2014, Charles E. Twymon, Jr., and Sandra T. Kenner applied for the probate
of the Will of Charles Edward Twymon, Sr., hereinafter called Decedent, as a Muniment of
Title.
2. The Will offered for probate was self-proved according to law during the lifetime of said
Decedent.
3. The Decedent died on July 7,2012, at 3112 Winnie, Galveston, in Galveston County,
Texas, at the age of 79 years.
4. The Decedent's domicile at the time of his death was 3112 Winnie, Galveston, TX 77550,
Galveston County, Texas.
5. Four years did not elapse since the death of Decedent or prior to the filing of the
Application.
6. The Decedent was over eighteen (18) years of age and of sound mind at the time of
executing said Will.
7. The said Will was executed on April 30, 1999, with the formalities and solemnities and
under the circumstances required by law to make it a valid Will.
8. The said Will could not be located after Decedent's death after the exercise of reasonable
diligence, but a true and correct copy of said Will was filed in this cause by Applicants,
Charles E. Twymon, Jr., and Sandra T. Kenner.
9. Said Will was not revoked by Decedent.
10. No State, governmental agency of the State, nor charitable organization is named by the
Will as a devisee.
11. There are no unpaid debts owing by the Estate of Decedent, other than debts secured by
liens on real estate.
12. On September 10,2012, this Court entered its Judgment Declaring Heirship in its cause
number PR-007-3664, reciting the heirs at law of Charles Edward Twymon, Sr., and
directing the issuance of letters of independent administration in the Estate of Charles
Edward Twymon, Sr.
13. Charles E. Twymon, Jr., and Sandra T. Kenner filed a bill of review to revise and correct
the Judgment Declaring Heirship entered in cause number PR-007-3664, less than two years
after the date of that judgment.
Conclusions of Law.
1. The copy of the Will described above was proved and established as the Last Will and
Testament of the Decedent, entitled to probate as a Muniment of Title.
2. Charles E. Twymon, Jr., and Sandra T. Kenner showed error in the Judgment Declaring
Heirship entered in cause number PR-007-3664, requiring that judgment to be be revised and
corrected by vacating that judgment, so as to effectively replace that judgment with an order
probating the Will of the Decedent described above.
SIGNED this __ day of ,2014.
JUDGE PRESIDING