APPEAL NO CV IN THE COURT OF APPEALS FOR THE FIFTH APPELLATE DISTRICT FOR THE STATE OF TEXAS

Transcription

1 ORAL ARGUMENT REQUESTED APPEAL NO CV IN THE COURT OF APPEALS FOR THE FIFTH APPELLATE DISTRICT FOR THE STATE OF TEXAS GREENLEE ENTERPRISES, INC., ET AL Appellants, v. KWIK INDUSTRIES, INC., ET AL Appellees. APPEALED FROM THE 162 ND DISTRICT COURT OF DALLAS COUNTY, TEXAS Cause No Honorable Judge Lorraine Raggio APPELLANTS REPLY BRIEF MARK H. HOW State Bar No MARK FRELS State Bar No BUDDY APPLE State Bar No HOW FRELS ROHDE WOODS & DUKE A Professional Corporation 2027 Young Street Dallas, Texas (214) Telephone (214) Facsimile ATTORNEYS FOR APPELLANTS APPELLANTS REPLY BRIEF Page 1 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

2 INDEX OF PARTIES AND COUNSEL MARK H. HOW MARK FRELS BUDDY APPLE HOW FRELS ROHDE WOODS & DUKE, P.C Young Street Dallas, Texas (214) Telephone (214) Facsimile ATTORNEYS FOR PLAINTIFFS GREENLEE ENTERPRISES, INC., ET AL JAN STALLONS 8020 Wallace Road Fort Worth, Texas PRO SE JEFFREY S. SEEBURGER KANE RUSSELL COLEMAN & LOGAN, P.C Thanksgiving Tower 1601 Elm Street Dallas, Texas (214) Telephone (214) Facsimile ATTORNEYS FOR DEFENDANT COMPASS BANK PAUL FRANCIS PAUL FRANCIS, ATTORNEY AT LAW, PLLC P.O. Box W. Pioneer Parkway Arlington, TX (817) (817) JAMES A. CRIBBS CRIBBS & MCFARLAND, P.C. P.O. Box W. Abram Arlington, Texas ATTORNEYS FOR DEFENDANT CHRIS CHEVREAUX d/b/a CHRIS CHEVREAUX & ASSOCIATES There are no other persons interested in this proceeding. APPELLANTS REPLY BRIEF Page 2 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

3 TABLE OF CONTENTS SUBJECT PAGE(S) Index of Parties and Counsel 2 Table of Contents. 3 Table of Authorities. 5 I. Argument and Authorities 6 A. There is no evidence in the record to support the Trial Court s Order Granting Traditional Summary Judgment for Defendant Chris Chevreaux d/b/a Chris Chevreaux and Associates....6 B. Appellee Jan Stallons has provided no argument, authority, or evidence to support the Trial Court s Orders Granting Stallons Traditional and No-Evidence Motions for Summary Judgment.. 9 II. Prayer..10 III. Certificate of Service. 11 APPELLANTS REPLY BRIEF Page 3 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

4 TABLE OF AUTHORITIES CASES PAGE(S) City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). 6, 9 Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, (Tex. App.--Austin 1998, no pet.)....9 Ruiz v. City of San Antonio, 966 S.W.2d 128, 130 (Tex. App. Austin 1998, no pet)...9 SW. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)...6, 9 RULES PAGE(S) TEX. R. CIV. P. 166a(c). 6, 9 APPELLANTS REPLY BRIEF Page 4 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

5 APPEAL NO CV IN THE COURT OF APPEALS FOR THE FIFTH APPELLATE DISTRICT FOR THE STATE OF TEXAS GREENLEE ENTERPRISES, INC., ET AL Appellants v. KWIK INDUSTRIES, INC., ET AL Appellees. APPEALED FROM THE 162 ND DISTRICT COURT OF DALLAS COUNTY, TEXAS Cause No Honorable Judge Lorraine Raggio APPELLANTS REPLY BRIEF APPELLANTS REPLY BRIEF Page 5 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

6 TO THE HONORABLE COURT OF APPEALS: COME NOW Greenlee Enterprises, Inc., et al. ( Appellants ) and pursuant to the Texas Rules of Appellate Procedure submit the following Reply Brief to the Court. I. ARGUMENT AND AUTHORITIES A. THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT S ORDER GRANTING TRADITIONAL SUMMARY JUDGMENT FOR DEFENDANT CHRIS CHEVREAUX D/B/A CHRIS CHEVREAUX AND ASSOCIATES. In a traditional summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co., at 215. Here, one of the Appellees has clearly failed to meet his burden as there is no evidence in the clerk s record to support Appellee s Traditional Motion for Summary Judgment. Appellee Chris Chevreaux d/b/a Chris Chevreaux and Associates ( Chevreaux or Appellee ) includes a Request to Amend Brief in Appellee s Brief filed with this Court, requesting permission to file an amended brief when the clerk s record is complete. (Appellee s Brief, Page 1). In Appellee s Joint Motion to Extend Deadlines to File Brief filed with Compass Bank, N.A. on September 20, 2010, Appellee claimed to have discovered matters that were not included in the record which are indispensable to the disposition of this appeal. (Appellees Joint Motion to APPELLANTS REPLY BRIEF Page 6 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

7 Extend Deadlines to File Brief, Page 2). 1 Appellee appears to reference the Affidavit of Chris Chevreaux (the Affidavit ) and all its accompanying exhibits, which, as Appellants noted in Appellants Brief, were not included in the Clerk s Record. (Appellants Brief, Page 33). Appellants now file this Appellants Reply Brief to clarify their position that there is no evidence in the Clerk s Record to substantiate the Order Granting Chevreaux s Traditional Motion for Summary Judgment against the Greenlee, Michaels, and Willis Plaintiffs on February 13, (CR ). As noted in Appellants Brief, Appellee s Motion for Summary Judgment references various attachments and exhibits, including the Affidavit, but none were attached and none are included in the clerk s record. (Appellants Brief, Page 33; CR 442). Appellants Brief indicated that apparently, the only evidence raised by Defendant Chevreaux regarding Plaintiffs claims of conspiracy is his self-serving affidavit but noted Chevreaux s affidavit, an attachment to Chevreaux s Motion for Summary Judgment is not included in the Clerk s Record. (Appellants Brief, Page 33, Note 6). In Appellee s Brief, Appellee is literally forced to cite to the phantom Affidavit as ( CR ). (Appellee s Brief, Page 2). Prior to the filing of Appellee s Brief, Chevreaux sent a binder of documents purporting to be the Affidavit of Chevreaux and accompanying exhibits, requesting Appellants stipulate to the documents as the exhibits attached to Appellee s Motion for Summary Judgment (the Exhibits ). A copy of this request is attached as Exhibit A. Upon review of said documents, Appellants determined they had never received copies of the Exhibits and refused to stipulate to the documents. Thereafter, Appellee filed his Motion to Determine Contents of Missing Record (the Motion to 1 Appellants Reply Brief contains citations to items outside of the clerk s record due to Appellee s attempt to bring into evidence items outside the clerk s record. Certain items cited by Appellants which are outside the clerk s record are attached hereto. APPELLANTS REPLY BRIEF Page 7 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

8 Determine Contents ) in the 162 nd Judicial District Court in Dallas County (the Trial Court ) on October 8, 2010, which was set for hearing on November 19, A copy of the Motion to Determine Contents is attached hereto as Exhibit B. By letter dated November 18, 2010 attached hereto as Exhibit C, Appellee advised Appellant that the hearing on the Motion to Determine Contents was cancelled and that Appellee was passing on the hearing. Also on November 18, 2010, Appellee sent a second letter, attached at Exhibit D, advising that the Exhibits had been located in a sealed envelope in the 101 st Judicial District Court in Dallas County, the court from where the underlying action was transferred into the Trial Court. Appellee admits that when he filed Chevreaux s Motion for Summary Judgment, the Exhibits were filed in a sealed envelope pursuant to protective order. Id. Appellee goes on to admit that the contents of the envelope, the purported Exhibits upon which his Motion for Summary Judgment are based, remain sealed. Id. In order for the exhibits to become available for inclusion in the clerk s record they need to be unsealed. Id. Appellee includes a Motion for Court to Unseal Record (the Motion to Unseal Record ) and solicits counsel s agreement to an Agreed Order granting said Motion. Id. Appellee s discovery of the location of the Exhibits raises serious questions about the evidence relied upon by the Trial Court in granting Appellee s Traditional Motion for Summary Judgment. The clerk s record before the Court contains no underlying evidence to support Appellee s Traditional Summary Judgment. The Exhibits were not in the record at the time of the hearing and could not have been seen by the Trial Court. The discovery of the location of the sealed evidence in another court confirms that the Exhibits were not presented to the Trial Court for consideration prior to the hearing on Appellee s Motion for Summary Judgment. The reason why the Exhibits do not appear in the clerk s record is because they were not attached to Appellee s APPELLANTS REPLY BRIEF Page 8 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

9 Traditional Motion for Summary Judgment filed with the Trial Court and served on Appellants. As such, there is no evidence in the clerk s records to support the Order granting Appellee s Traditional Motion for Summary Judgment, and said Order should be reversed. B. APPELLEE JAN STALLONS HAS PROVIDED NO ARGUMENT, AUTHORITY, OR EVIDENCE TO SUPPORT THE TRIAL COURT S ORDERS GRANTING STALLONS TRADITIONAL AND NO- EVIDENCE MOTIONS FOR SUMMARY JUDGMENT. Finally, another Appellee, Jan Stallons ( Stallons ), has failed to file a brief in this appeal. As such, she has provided no argument and pointed to no evidence in the clerk s record to support the Trial Court s granting of her Motions for Traditional and No-Evidence Summary Judgment. (CR ). On appeal, Courts of Appeal have stated that they will review de novo the trial court s decision upon summary judgment. Ruiz v. City of San Antonio, 966 S.W.2d 128, 130 (Tex. App. Austin 1998, no pet.). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co., at 215. Due to Stallons failure to file a brief, she has failed to prove that she met the summary judgment burden by establishing that no genuine issue of material fact exists and that she was entitled to judgment as a matter of law. Id.; TEX. R. CIV. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Similarly, a no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact, and here, Stallons has failed to contradict or contest the considerable evidence raised by Appellants. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, (Tex. App.--Austin 1998, no pet.). Stallons has failed to brief this Court on the correctness of the Orders Granting her Motions for Traditional and No-Evidence Summary Judgment, and Appellants have successfully presented probative evidence and raised issues of material fact which indicate said Trial Court s Orders should be reversed. APPELLANTS REPLY BRIEF Page 9 N:\KWIK KAR\PLEAD\Appeal\Appellants' Reply Brief.doc

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