NO. 01-14-00290-CV 

 

IN THE COURT OF APPEALS 

FOR THE FIRST DISTRICT OF TEXAS 

HOUSTON, TEXAS 

 

WARWICK OIL & GAS, INC., WARWICK OIL & GAS, INC., 

RESERVE ROYALTY CORPORATION, THOMAS CHRISTOPHER 

KNOWLES, and FRAN MICHAEL 

 

V. 

 

FSB PROPERTIES, INC. 

 

 

On Appeal from Trial Court Cause Number 2012-33816 in the 164th 

Judicial District of Harris County, Texas 

The Honorable Alexandra Smoots-Hogan, Presiding 

 

APPELLANTS’ RESPONSE TO APPELLEE’S MOTION TO STRIKE 

REPLY BRIEF 

 

 

 

Thomas P. Nixon

State Bar No. 24048692

6009 Richmond Ave. Suite 208

Houston, TX 77057

Tel: (713) 893-4439

Fax: (888) 591-6924

Attorney for Appellants

ACCEPTED

01-14-00290-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

1/9/2015 4:51:26 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/9/2015 4:51:26 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS 

 

Table of Contents .......................................................................................i

Index of Authorities...................................................................................ii

I. It is well established that a party’s pleading is to be construed liberally ...........1

II. The present case is distinguishable from Green, Bankhead, and N.P...............1

III. The arguments concerning the summary judgment and the final judgment of 

the trial court...........................................................................................................4

IV. The appeal from the April 2, 2014 judgment...................................................6

Conclusion .................................................................................................7

 

i
INDEX OF AUTHORITIES 

 

 

Cases

Bankhead v. Maddox, 135 S.W.3d 162 (Tex. App.—Tyler 2004, no pet.)2, 

3, 4, 7

Green v. Quality Dialysis One, LP, No. 14-05-01247-CV (Tex. App.—

Houston [14th Dist.] Aug. 7, 2007, no pet.) (memorandum opinion)...2, 

4, 6

Hagberg v. City of Pasadena, 224 S.W.3d 477 (Tex. App.—Houston [1st 

Dist.] 2007, no pet.) ................................................................................1

Malcomson Road Utility Dist. v. Newsom, 171 S.W.3d 257 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied) ...................................................5

N.P. v. Methodist Hosp., 190 S.W.3d 217 (Tex. App.—Houston [1st 

Dist.] 2006, pet. denied) .................................................................2, 3, 4

Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989).......................1

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 

1991) .......................................................................................................5

Rules

TEX. R. CIV. PRO. 166a(i) (2014) ................................................................4

ii
TO THE HONORABLE JUSTICES OF SAID COURT: 

 Now comes Warwick Oil & Gas, Inc., Texas, Warwick Oil & Gas, 

Inc., Oklahoma, Reserve Royalty Corporation, Thomas Christopher 

Knowles, and Fran Michael, Appellants in the above titled and 

numbered cause, and, pursuant to Rule 10.1(b) of the Texas Rules of 

Appellate Procedure, file their Response to Appellee’s Motion to Strike

Reply Brief and in support thereof would respectfully show this Court 

the following:

ARGUMENT 

 

I. It is well established that a party’s pleading is to be construed 

liberally 

 

At the outset, Appellants would again argue that a party’s 

pleading is to be construed liberally. See generally Hagberg v. City of 

Pasadena, 224 S.W.3d 477, 480 (Tex. App.—Houston [1st Dist.] 2007, no 

pet.) (writing that a point “is not waived if it is raised within the body of 

the brief.”) A liberal interpretation of a party’s pleadings and briefs 

ensures “a just, fair, and equitable adjudication.” Id. (quoting Sterner v. 

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). Appellants would 

ask this Court to interpret their Original Brief liberally.

II. The present case is distinguishable from Green, Bankhead, and N.P. 

1
 

Three cases relied upon by Appellee—Green v. Quality Dialysis 

One, LP, No. 14-05-01247-CV (Tex. App.—Houston [14th Dist.] Aug. 7, 

2007, no pet.) (memorandum opinion), Bankhead v. Maddox, 135 

S.W.3d 162 (Tex. App.—Tyler 2004, no pet.), and N.P. v. Methodist 

Hosp., 190 S.W.3d 217 (Tex. App.—Houston [1st Dist.] 2006, pet. 

denied)—concerning the introduction of new issues in an appellant’s 

reply brief are all distinguishable from the present case.

In Green, the appellant’s original brief argued that the trial court 

erred in granting summary judgment for the appellee because the 

appellant “was not allowed adequate time for discovery” and in 

determining that the appellant was not an at-will employee. Green, No. 

14-05-01247-CV. Later, in his reply brief, the appellant challenged the 

summary judgment based on the merits of the claim—i.e., he challenged 

the judgment “as to his causes of action for breach of contract, tortious 

interference with contract, and intentional infliction of mental distress.”

Id. Because he did not challenge summary judgment “as to his causes of 

action” in his original brief, the argument was waived. Id.

In Bankhead, in the appellant’s original brief, the appellant 

complained that “the jury was prohibited from awarding a zero amount 

2
in attorney’s fees” and argued that attorney’s fees were mandated under 

the Texas Civil Practices and Remedies Code. Bankhead, 135 S.W.3d at 

163. In her reply, however, she argued under the Residential 

Construction Liability Act. Id. The court ruled that argument had been 

waived as not addressed in the original brief. Id.

Finally, in N.P., the appellant’s originally argued that portions of 

the Texas Civil Practices and Remedies Code were inapplicable and 

that the trial court erred in granting summary judgment for that 

reason. N.P., 190 S.W.3d 217. In her reply brief, the appellant argued 

that “she still has a viable claim for relief for respondeat superior.” Id.

at 220. This Court addressed the appellant’s new argument because it 

questioned whether the trial court’s final judgment actually “dispose[d]

of all pending claims and parties” and thus related to this Court’s 

jurisdiction. Id. at 225.

All three of the above-mentioned cases are distinguishable from 

the present case. Here, Appellee challenges Appellants’ arguments 

related to the summary judgment and final judgment of the trial court 

and the April 2, 2014 order. Yet Appellants did not argue a new issue in 

its reply—unlike the appellant N.P. who used her reply to argue that 

3
she still had a case under respondeat superior. Id. Nor did Appellants 

seek relief under a different statute—unlike the appellant in Bankhead

who used her reply to argue under the Residential Construction 

Liability Act rather than the Texas Civil Practices and Remedies Code. 

Bankhead, 135 S.W.3d at 163. Nor did Appellants concoct new issues—

as did the appellant in Green who used his reply to argue that trial 

court had erred in ways not stated in the original brief. Green, No. 14-

05-01247-CV.

Rather, in the present case, in both Appellants’ Original Brief and 

Reply Brief, Appellant was consistent in arguing that there was no 

evidence to support the trial court’s ruling granting relief to Appellee 

and that Appellee’s Motion for Additional Sanctions concerned only the 

behavior of Appellant Thomas Knowles and put only Knowles on notice

that his pleadings would be struck. (CR: 1213-21.)

III. The arguments concerning the summary judgment and the final 

judgment of the trial court 

 

Briefly, a no-evidence summary judgment may be granted when 

“there is no evidence of one or more essential elements of a claim or 

defense on which an adverse party would have the burden of proof at 

trial.” TEX. R. CIV. PRO. 166a(i) (2014). Traditional summary judgment 

4
may be granted when “when a movant establishes there is no genuine 

issue of material fact and that he is entitled to judgment as a matter of 

law.” Malcomson Road Utility Dist. v. Newsom, 171 S.W.3d 257, 262 

(Tex. App.—Houston [1st Dist.] 2005, pet. denied). Summary Judgment

is a ruling on the merits of a case.

Though the trial court did not grant summary judgment to 

Appellee, the trial court ruled in favor of Appellee, thus implicitly

finding that its claim had merit. See generally TransAmerican Natural 

Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991) (writing 

“[d]iscovery sanctions cannot be used to adjudicate the merits of a 

party's claims or defenses unless a party's hindrance of the discovery 

process justifies a presumption that its claims or defenses lack merit.”)

In their first issue, Appellants argue that their claim is meritorious and 

that Appellee’s claim lacks merit.

In both Appellants’ Original Brief and Reply Brief, Appellants 

argued that there was no evidence to support Appellee’s theory of the 

case and that there was no genuine issue of material fact. As the trial 

court ruled in Appellee’s favor and granted relief as Appellee pleaded 

for, such arguments are applicable to both the denial of summary 

5
judgment and to the trial court’s final judgment. (CR: 1448.) As the 

same arguments apply to both judgments, Appellants would ask this 

Court to liberally construe their Original Brief as to not abandon this 

issue by waiver.

The present case is distinguishable from Green, because here 

Appellants did not make new arguments concerning why summary 

judgment was denied in error. Green, No. 14-05-01247-CV. Appellants 

rather ask that the same arguments from their Original Brief that were 

made mistakenly concerning the denial of summary judgment be 

applied to the final judgment.

IV. The appeal from the April 2, 2014 judgment 

 

Again, in both Appellants’ Original Brief and Reply Brief, 

Appellants argued that Appellee’s Motion to Enforce Prior Sanctions 

and for Additional Sanctions concerned only the behavior of Appellant 

Christopher Knowles and specifically pleaded only “that Defendant 

Knowles’s answer be stricken without further actions of this Court.” 

(CR:1213-21.) Though in Appellants’ Original Brief Appellants 

mistakenly argued the trial court’s April 2, 2014 judgment was a 

judgment nunc pro tunc, the premise of the argument did not change—

6
the trial court granted judgment beyond what was pleaded for and 

beyond what was argued for at the hearing and erred in doing so.

It should further be noted that the present case is distinguishable 

from Bankhead. There, the appellant failed to raise “the controlling 

authority” and therefore waived the issue. Bankhead, 135 S.W.3d at 

164. As stated above, the appellant’s original brief concerned the Texas 

Civil Practices and Remedies Code whereas the reply brief argued for 

relief under the Residential Construction Liability Act. Id. Here, 

Appellants’ Reply Brief did not ask for relief under an entirely different 

statute but rather under a different rule of procedure.

CONCLUSION 

 

WHEREFORE, premises considered, Appellants respectfully ask 

this Court to deny Appellee’s Motion to Strike Appellants’ Reply Brief 

and for whatever further relief Appellants have shown themselves to be 

justly entitled.

Respectfully submitted,

/s/Thomas P. Nixon

Thomas P. Nixon

State Bar No. 24048692

6009 Richmond Ave. Suite 208

Houston, TX 77057

7
Tel: (713) 893-4439

Fax: (888) 591-6924

Emily Foster

State Bar No. 24059768

166 Carr Road

Sheffield

S6 2WZ

UK

Attorneys for Appellants

Certificate of Service 

I hereby certify that a true and correct copy of Appellants’ 

Response to Motion to Strike Reply Brief was served on all other parties 

or their attorneys of record on this 9th day of January, 2015 by 

electronic service.

/s/Thomas P. Nixon

Thomas Nixon

Attorney for Appellants

Certificate of Compliance 

I hereby certify that this response complies with the requirements 

of Rule 9.4 of the Texas Rules of Appellate Procedure.

/s/Thomas P. Nixon

Thomas Nixon

Attorney for Appellants

8