No. 12
- 14 -00300- CV

COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS TYLER, TEXAS

IN THE ESTATE OF RODNEY JOE KNIGHT, DECEASED

On Appeal from the County Court at Law, Cherokee County, Texas, Cause No. 12025, The Honorable Kelley D. Peacock, presiding

APPELLANT’S REPLY BRIEF

Bill Pedersen, III Texas Bar No. 24030011 Email: bill@bpedlaw.com 2501 Oak Lawn Avenue Suite 380 , LB

- 50 Dallas, Texas 75219 Tel. (214) 630

- 4554 Fax. (214) 630

- 9264 Attorney for Appellant, Natosha Moore

- Knight ACCEPTED 12-14-0030-cv TWELFTH COURT OF APPEALS

TYLER, TEXAS 4/24/2015 11:59:24 AM

CATHY LUSK CLERKAppellant’s Brief Page 2 TABLE OF CONTENTS Page
INDEX OF AUTHORITIES

................................ ................................ ...................... 3
R ESPONSE TO APPELLEE ’ S BR I E F

................................ ................................ ..... 4
PRAYER

................................ ................................ ................................ .................... 7
CERTIFICATE OF COMPLIANCE

................................ ................................ ......... 8
CERTIFICATE OF SERVICE

................................ ................................ .................. 8Appellant’s Brief Page 3 INDEX OF AUTHORITIES Page

C ASES Williams v. Bank One, Texas, N.A ., 15 S.W.3d 110 ( Tex. App.

- Waco 1999 , no pet. )

... ... ... ... ... .. ................. ... ... 4
R ULES Tex. R. App. P. 9.4(i)(1)

................................ ................................ ............................ 8 Tex. R. App. P. 9.4(i)(2)( C )

................................ ................................ ....................... 8 Tex. R. Civ. P. 2 45

................................ ................................ ................................ ..... 4 Tex. R. Civ. P. 252

................................ ................................ ................................ ..... 4Appellant’s Brief Page 4 R ESPONSE TO APPELLEE ’ S BRIEF Appellant seeks to respond to Appellee’s Brief. Appellant will not repeat arguments or points raised and argued in Appellant’s Brief, only address certain specific claims and arguments made by the Appellee. Appellee seems to have two main points: (1) Appellant’s Mot ion for Continuance was not ruled on, but if it was Appellant did not preserve error, and (2) the absence of any additional evidence being heard on the merits of this lawsuit are due to Appellant’s lack of diligence.

“ N OSTRADAMUS ” DEFENSE
The trial court in this case, following Appellant’s urging of her Motion for Continuance, heard testimony. R.R. vol. 2, pp. 5

- 6. The Texas Rules of Appellate Procedure provide that a trial court may implicitly rule on a request, objection or motion. Tex. R. App. 33.1(a)(2)( A) , Williams v. Bank One, Texas, N.A ., 15 S.W.3d 110 ( Tex. App.

- Waco 1999 , no pet. ) . Appellant urged her Motion to Continue the hearing, the Court stated “I really feel like we need to hear this today,” and testimony was heard. R.R. vol. 2, p. 5, lines 21

- 22. As discussed in Appellant’s Brief, the trial court’s denial was an abuse of her discretion, violated Texas Rules of Procedure 252 & 245, and denied Appellant due process. Appell e e then appears to argue that this Court should evaluate the trial court’s January 7 denial in light of the entire procedural history of the case, evenAppellant’s Brief Page 5

that which occurred after January 7. This argument presumes the trial court to be clairvoyant. Appellant wou ld note that the Appellee cites to no authority that would suggest that a denial of a motion to continue should be evaluated based on
what occurs after the denial. Appellee is attempting to create a duty of post

- denial diligence which does not exist.
A PPE LLEE ’ S O BSTRUCTION Appellee is attempt ing to establish waiver, or a lack of diligence, on Appellant’s part, in the period between the only evidentiary hearing in this case and the entry of the Judgment. Appellant does not believe that this argument has

an y real basis in law, but will respond to it without conceding its logical soundness or legal basis. Appellant sought new counsel following the January 7 evidentiary hearing. Appell e e was aware of this no later than May 19, 2014, when undersigned counsel
filed a Motion for Substitution of Counsel. C. R. 99

- 103. Appellee opposed this substitution, and the Motion was not granted until August 13, 2014. C.R 183. Appellee’s counsel refused to “forward any documents” related to the litigation
until the Motion to Subst itute was granted. C.R. 131. Des p ite this discourteous and unprofessional obstruction, undersigned counsel did his best to represent his client
even before his substitution.Appellant’s Brief Page 6

During this time period, when Appellee was fully aware that Appellant had

new counsel, and refus ed to provide even a courtesy copy of any documents related to the litigation, Appellee file d his “Motion to Dismiss Claims in Will
Contest.” C.R. 104

- 104

- 109. This pleading asserted that the issue of informal marriage had been tried by c onsent during the January 7 hea r i ng. Even before the trial court could hold a hearing on Appellant’s Motion for Substitution, which Appellee insisted upon, Appellant filed both a Response and a Supplemental Response to this pleading. C.R. 143

- 163, 177

- 182 . The Response noted the communication problems briefly described above, specially excepted to the Motion to Dismiss, and then addressed the merits of the Motion to Dismiss. C.R. 143

- 163. Specifically, Appellant n o t ed that the trial court had not ruled on the question of
informal marriage , and that no conventional trial on the merits had been held. Id

. The Supplemental Response was filed following a telephonic hearing on July 31. C.R. 177. That was a conference held in chambers, and no record was made of th at
conference. It is inaccurate, if not deliberately misleading, for Appellee’s Brief to state “The Appellant never complained or denied that the issue of informal marriage had been tried by consent on January 7, 2014 until this appeal.” Appellee’s Brief, page 7. The point of this procedural history is to point out that undersigned counsel wasn’t in the case until August 13, when the Court announced that it had alreadyAppellant’s Brief Page 7

finally decided the question of common law marriage. R.R. vol. 3, pp. 14

- 15, lines
22

- 6. No opportunity existed for the Appellant to request a hearing or an opportunity to present additional evidence, because Appellee wouldn’t even “forward any documents” related to the case until the trial court granted Appellant’s Motion to Substitute Couns el. C.R. 131. On the same date the trial court granted Appellant’s M otion to Substitute, the trial court announced that the

case was over. Appellee’s assertion that additional evidentiary hearings occurred is contrary to the record. The only time a witnes s was sworn, or anything other than lawyers’ arguments were heard, was on January 7, 2014.
P RAYER WHEREFORE, PREMIS ES CONSIDERED, Appellant prays that this Court will reverse the Judgment of the Trial court , and remand this case to that Court for
further proceedings , so that Appellant may fairly litigate the existence of an informal marriage. Respectfully submitted,
LAW OFFICE OF BILL PEDERSEN, III, PLLC By: /s/ Bill Pedersen, III Bill Pedersen, III Texas Bar No. 24030011 Email: bill@bpedlaw.com 2501 Oak Lawn Avenue Suite 380 , LB

- 50Appellant’s Brief Page 8 Dallas, Texas 75219 Tel. (214) 630

- 4554 Fax. (214) 630

- 9264 Attorney for Appellant Natosha Moore

- Knight
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type

- volume limitations of Tex. R. App. P. 9.4(i)(2)( C ) because it contains less than 7 , 5 00 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1)

. 2. This brief complies with the typeface requirements of Texas Rule of Procedure 9.4(e) b ecause this brief has been prepared in a proportionally spaced typeface using “Microsoft Word 2010” in fourteen (14) point “Times New Roman” style font. /s/ Bill Pedersen, III Bill Pedersen, III
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was forwarded to all counsel of record via electronic filing on this 2 4 th day of a pRIL , 2015, as follows: Wayne D. Haglund State Bar No. 08697500 Email : whaglund@haglundlaw.com P.O. Box 713 107 West Kerr Avenue Lufkin, Texas 75902 Tel. (936) 639

- 0007 Fax. (936) 639

- 0016 Attorney for Roy Knight By facsimile and electronic filing

/s/ Bill Pedersen, III Bill Pedersen, III