NO. 01 - 14 - 00290 - CV
IN THE COURT OF APPE ALS FOR THE FIRST DISTRI CT OF TEXAS HOUSTON, TEXAS WARWICK OIL & GAS, I NC., WARWICK OIL & G AS, INC., RESERVE ROYALTY CORP ORATION, THOMAS CHRI STOPHER 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

CLERKTABLE 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

iINDEX 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 Ga s Corp. v. Powell , 811 S.W.2d 913 (Tex. 1991)

................................ ................................ ................................ ....... 5 Rules T EX . R. C IV . P RO . 166a(i) (2014)

................................ ................................ 4

iiTO THE HONORABLE JUSTICES OF SAID COURT: Now comes Warwick Oil & G as, Inc., Texas, Warwick O il & Gas, I nc., Oklahoma, Reserve Royalty Corporation, Thomas Christopher K nowles, 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 an d 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.) (writ ing that a point “is not waived if it is raised within the body of the brief .”) A l iberal interpretation of a party’s pleadings and briefs ensures “a just, fair, and equitable adjudication.” Id
. (quoting Sterner v. Marathon O il 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. 1Three 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 appel lee 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
. I n Bankhead , in the appellant ’s original brief, the appellant complained that “ the jury was prohibited from awa rding a zero amount 2in 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. I n 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 ar gue a new issue in its reply

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

3she still had a case under respondeat superior. Id
. Nor did Appellants seek relief under a different statute

— unlike the appellant in Bankhea d 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, Appe llant 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 n otice 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 n o - evidence summary judgment may be granted when

“ there is no evidence of one or more essent ial elements of a claim or defense on which an adverse party would hav e the burden of proof at trial.” T EX . R. C IV . P RO . 166a(i) (2014 )

. Traditional summary judgment 4may 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. Tho ugh 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 clai m is meritorious and that Appellee’s claim lacks merit. In both Appellants’ Original Brief and Repl y 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, s uch arguments are applicable to both the denial of summary

5judgment 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 B rief as to not abandon this issue b y 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 th e 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, App ellants 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

—

6the 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 t he 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. Respectfu lly submitted, /s/Thomas P. Nixon Thomas P. Nixon State Bar No. 24048692 6009 Richmond Ave. Suite 208 Houston, TX 77057 7Tel: (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 th eir attorneys of record on this 9 th 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

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