CAUSE NO. 06-15-00014-CV 

__________________________________________________________________ 

IN THE COURT OF APPEALS 

FOR THE SIXTH DISTRICT OF TEXAS, TEXARKANA DIVISION 

__________________________________________________________________ 

WILLIAM H. SCURLOCK § 

 § 

v. § 

 § 

JOHN M. HUBBARD § 

__________________________________________________________________ 

APPELLANT’S RESPONSE TO 

APPELLEE’S MOTION TO DISMISS 

__________________________________________________________________ 

ON APPEAL FROM THE 102nd JUDICIAL DISTRICT COURT 

CAUSE NO. 14C1653-102 

__________________________________________________________________ 

 

Cory J. Floyd 

 Texas Bar No. 24049365 

 

 Cammy R. Kennedy 

 Texas Bar No. 24079245 

 NORTON & WOOD, L.L.P. 

 315 Main Street 

 Texarkana, Texas 75501 

 Phone: (903) 823-1321 

 FAX: (903) 823-1325 

ATTORNEYS FOR APPELLANT, 

 WILLIAM H. SCURLOCK 

ACCEPTED

06-15-00014-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

4/6/2015 4:47:26 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 4/6/2015 4:47:26 PM DEBBIE AUTREY Clerk
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APPELLANT’S RESPONSE TO APPELLEE’S MOTION TO DISMISS

 Appellant asks the Court to deny appellee’s motion to dismiss the 

appeal, and to take and consider this motion with the case because the 

motion to dismiss requires an inquiry into, and involves the merits of 

the appeal. 1

I. INTRODUCTION 

1. Appellant is William H. Scurlock; Appellee is John Hubbard. 

2. On February 20, 2015 Appellant brought this appeal of the trial 

court's Order For Issuance of Temporary Injunction and Appointment of 

Receiver which was signed on February 3, 2015 taking effect 

immediately. See generally [CR 67-73]. 

3. Appellee is unable to obtain the bonds required by the trial court 

as a term of the temporary injunction, and Appellee now asserts that 

his inability to obtain these bonds shelters the trial court's order from 

review. 

4. Since February 3, 2015, receiver Randy Moore has managed Pecan 

Point Brewing Company, to the exclusion of Appellant, William H. 

Scurlock. See Affidavit of William H. Scurlock (attached hereto as 

																																																								

1 Appellee's Motion to Dismiss Fails to Comply with Texas Rule of Appellate Procedure 10.1(a)(5).
2 

Exhibit “A”); and Email Dated Tuesday, February 3, 2015 from receiver 

Randy Moore to Counsel for Appellant (attached hereto as Exhibit 

“B”)(Exhibits “A” and “B” are hereby incorporated by reference as if set 

out in its entirety). 

II. ARGUMENT AND AUTHORITIES 

5. Although the Court has the authority under Texas Rule of 

Appellate Procedure 42.3(a) to dismiss an appeal for lack of jurisdiction, 

this is not a case in which the Court should do so.

The Order For Issuance of Temporary Injunction and 

Appointment of Receiver is Appealable. 

6. Section 51.014 of the Civil Practice and Remedies Code expressly 

authorizes an appeal from certain interlocutory orders of the trial court, 

including orders appointing a receiver and orders granting or refusing a 

temporary injunction. Tex. Civ. Prac. & Rem. Code §51.014(a)(1) (West 

2011); Tex. Civ. Prac. & Rem. Code §51.014(a)(4) (West 2011). 

7. The Order For Issuance of Temporary Injunction and 

Appointment of Receiver clearly appointed a receiver and granted a 

temporary injunction. See generally [CR 67-73]. 
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The Appeal was Timely Perfected. 

8. The Court should deny appellee’s motion to dismiss this appeal for 

lack of jurisdiction because appellant timely perfected his appeal. Tex. 

R. App. P. 28.1 (stating appeals from interlocutory orders, when allowed 

by statute, are accelerated and are perfected by filing a notice of appeal 

“within the time allowed by Rule 26.1(b).” The time allowed by Rule 

26.1(b) is twenty days after the order is signed. Tex. R. App. P. 26.1(b). 

9. On February 3, 2015, the trial court signed its Order For Issuance 

of Temporary Injunction and Appointment of Receiver. [CR 67-73]. 

10. On February 20, 2015, seventeen days later and clearly within the 

twenty day time period prescribed by Texas Rule of Appellate Procedure 

26.1, Scurlock filed his Notice of Appeal, therefore perfecting an appeal 

to this Court of the Order For Issuance of Temporary Injunction and 

Appointment of Receiver. [CR 80]. 

11. On March 4, 2015, the Court of Appeals issued a letter notifying 

Scurlock that his appellate brief was due on or before March 24, 2015. 

On March 19, 2015 Scurlock filed his Appellants Brief, clearly prior to 

the Court's deadline. Brief of Appellant, William H. Scurlock v. John 

M. Hubbard, No. 14C-1653-102, appeal docketed, 06-15-00014-CV 
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(March 19, 2015). Because Appellant timely perfected his appeal, and 

timely filed his brief, the Court should deny the motion to dismiss. 

Appellant's Right to Appeal the Temporary Injunction Arises on 

the Date the Order is Signed. 

12. In re Robinson Family Entities explicitly provides that when the 

trial court’s order restrains motion and enforces action, similar to the 

order in this case, the order functions as a temporary injunction, which 

grants the appeals court jurisdiction over the appeal. In re Robinson 

Family Entities, 11-12-00258-CV, 2014 WL 4347838, at *1 (Tex. App.—

Eastland Aug. 29, 2014, no pet.)(not designated for publication). 

13. It is well established that a party loses its right to complain about 

the validity of an injunction if appeal is not perfected within the proper 

time limits after the grant of the injunction. Tex. Civ. Prac. & Rem. 

Code Ann. § 51.014(4) (Vernon Supp.1990); Bayoud v. Bayoud, 797 

S.W.2d 304, 312 (Tex. App.—Dallas 1990), writ denied (Jan. 30, 1991).

14. The proper time to perfect an appeal for the grant of a temporary 

injunction is twenty days from the date the order is signed. Tex. R. 

App. P. 26.1(b) (emphasis added).

15. Appellee argues, in his motion to dismiss:
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 "Because the required bonds have not been paid, the 

temporary injunction that is the subject of Scurlock's 

interlocutory appeal has not been issued and is not 

effective." Appellee’s Motion to Dismiss, at 4, William 

H. Scurlock v. John M. Hubbard, No. 14C-1653-102, 

appeal docketed, 06-15-00014-CV (March 19, 2015). 

He continues: 

 "Because the temporary injunction that is the subject 

of Scurlock's interlocutory appeal is not in effect, 

Scurlock's interlocutory appeal regarding the 

temporary injunction is premature and must be 

dismissed for lack of jurisdiction of this Court." Id. 

16. Appellee cites no authority, statutory or common law, in support 

of the proposition that Appellant's timeline for appeal of the grant of a 

temporary injunction, runs from the date of the clerk's issuance of the 

writ of injunction. 

17. Appellant brought this appeal timely from the date of the signing 

of the order, in compliance with the Civil Practice and Remedies Code 

and the Texas Rules of Appellate Procedure, calculating all deadlines in 
6 

accordance with those rules, clearly vesting this Court with jurisdiction 

over this matter. For this reason, the motion to dismiss should be 

denied. 

Denying Review of the Temporary Injunction Would Deprive 

Appellant of any Procedural Mechanism to Appeal. 

18. Appellee argues that review of the temporary injunction is 

premature, until such time as he elects to, or is able to post the 

requisite bonds. Id. Appellee's argument, if it succeeds, allows him to 

shelve the order granting temporary injunction, and shield it from 

review until he elects to enforce it, all the while receiving the benefit of 

the same through the receivership which is in place and effectuating the 

purpose of the injunction. 

19. If Appellant's deadline runs twenty days from the date the order is 

signed (Texas Rule of Appellate Procedure 26.1), but Appellant is not 

allowed to appeal the order, until such time as the Appellee attempts to 

enforce the order (Appellee's unsupported theory), Appellant is deprived 

of a procedural mechanism for review. Again, this proposition is 

unsupported by statute, rule or case law, and is contrary to Texas Rule 

of Appellate Procedure 26.1. 
7 

20. If there is no procedural mechanism for a party to be exonerated 

on appeal, and the collateral consequences of the lack of review are 

harsh, the court may decide an issue. See Gen. Land Office of State of 

Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990); State v. 

Lodge, 608 S.W.2d 910, 911 (Tex. 1980). 

Even Assuming the Appeal of the Temporary Injunction is 

Premature, the Receivership is Appealable.

21. Hubbard’s motion entirely avoids Scurlock’s appeal of the 

receivership. Accordingly, his Motion to Dismiss must be interpreted to 

seek only the partial dismissal of portions of the order establishing the 

temporary injunction. 

22. The trial court's order dated February 3, 2015, ordered Scurlock to 

"turn over management of Pecan Point Brewing Company to the 

Receiver as of February 3, 2015 at 3:00 p.m." [CR 69]. This is 

immediate and appealable error because, instead of conditioning this 

improper jaunt into receivership on the posting of the Applicant’s bond, 

as required by Texas Rule of Civil Procedure 695a, the receivership was 

set to take effect at a certain time and place, specifically, February 3, 

2015, at 3:00 p.m., regardless of whether any of the required bonds were 
8 

in place. Tex. R. Civ. P. 695a. This issue is explained in detail in 

Appellant's brief which is incorporated herein by reference, as if set out 

in its entirety. 

23. Because the grant of the receivership was timely appealed, the 

Court should deny appellee’s motion to dismiss this appeal for lack of 

jurisdiction. 

Appellee's Motion to Dismiss Concedes Issue Two of Appellant's 

Brief 

24. The trial court failed to require the necessary bonds for a 

receivership prior to entering its order establishing a receivership, and 

accordingly the Court should grant Appellant the relief sought under 

issue two of Appellant’s appeal brief. 

25. Appellee's motion to dismiss states that one bond was ordered for 

the receiver, and two were ordered pursuant to Texas Rule of Civil 

Procedure 684 (injunction bonds). Tex. R. Civ. P. 684. 

26. In order for a receivership to be effective, there must be two bonds 

posted. First, the applicant must post a bond payable to the defendant, 

in an amount fixed by the court sufficient to cover all probable damages 

and costs, “conditioned for the payment of all damages and costs in such 
9 

suit, in case it should be decided that such receiver was wrongfully 

appointed to take charge of such property.” Tex. R. Civ. P. 695a. 

Second, the receiver must post a bond approved by the appointing court, 

in an amount fixed by the court and conditioned on the faithful 

discharge of his duties as receiver. Tex. Civ. Prac. & Rem. Code Ann. 

§64.023 (Vernon 1985). 

27. Because appellee concedes issue two of Appellant's Brief, the 

motion to dismiss should be denied, and the Court should contemplate 

Appellee's concessions in the motion to dismiss, as argument, authority 

and evidence in support of Appellant's appeal of the Order For Issuance 

of Temporary Injunction and Appointment of Receiver. 

III. PRAYER 

 WHEREFORE, PREMISES CONSIDERED, Appellant asks this 

honorable Court to take this motion with the case because the motion to 

dismiss requires an inquiry into, and involves the merits of the appeal. 

Appellant further asks the Court to deny appellee's motion and 

continue with this appeal. Appellant asks this Court to vacate the trial 

court's Order for Issuance of Temporary Injunction and Appointment of 

Receiver, reverse the trial court's judgment, render judgment denying 
10 

the application for receivership and the application for injunction, and 

award to Appellant, William Scurlock, all costs incurred with the filing 

of this appeal and Response to Appellee’s Motion to Dismiss. 

Respectfully submitted: 

/s/ Cory J. Floyd 

 Cory J. Floyd 

 Texas Bar No. 24072348 

 Cammy R. Kennedy 

 Texas Bar No. 24079245 

 NORTON & WOOD, L.L.P. 

 315 Main Street 

 Texarkana, Texas 75501 

 Phone: (903) 823-1321 

 FAX: (903) 823-1325 

 Email: cory@nortonandwood.com

					 Email: cammy@nortonandwood.com

 

ATTORNEYS FOR APPELLANT, 

WILLIAM H. SCURLOCK 

 
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CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that on April 6, 2015, a true and correct 

copy of the Appellant’s Brief was forwarded to the counsel below: 

Brent M. Langdon 

 Kyle B. Davis 

 Langdon & Davis 

 625 Sam Houston Drive, Suite A 

 New Boston, Texas 75570 

 Phone: (903) 628-5571 

 Fax: (903) 628-5868 

 Email: blangdon@ldatty.com

 Email: kdavis@ldatty.com
AFFIDAVIT OF WILLIAM H. SCURLOCK 

STATE OF TEXAS § 

§ 

COUNTY OF BOWIE § 

BEFORE ME, the undersigned authority, on this day personally 

appeared vVilliam H. Scurlock, who under oath stated as follows: 

1. l\1y name is William H. Scurlock. I am over eighteen (18) 

years of age and am legally competent to make this Affidavit, which is 

true and correct, is based on my personal knowledge, and is made 

voluntarily and not under duress. The information contained herein is 

true and correct. 

2. On Tuesday, February 3, 2015 Randy Moore, acting as a 

court appointed receiver, assumed control of Pecan Point Brewing 

Company, Inc. 

3. l\1y only access to, and rights in, Pecan Point Brewing 

Company, Inc. are based on his consent. 

WILLIAM 

~$;~ H. SCURLOCK 

EXHIBIT 

~~~~~~~~-' A Affidavit ofW"illiam H. Scurlock 

William H. Scurlock v. John M. Hubbard, No. 14C-1653-102, 

appeal docketed, 06-15-00014-CV (March 19, 2015). Page 1 
SWORN TO AND SUBSCRIBED BEFORE ME on this Ji!!! day 

of April, 2015, to certify which witness my hand and official seal. 

Affidavit of~Tilliam H. Scurlock 

William H. Scurlock v. John M. Hubbard, No. 14C-1653-102, 

appeal docketed, 06-15-00014-CV (March 19, 2015). Page2 
Cory Floyd 

From: 

Sent: 

To: 

Subject: 

rmtexarkana@aol.com 

Tuesday, February 03, 2015 7:42 PM 

Cory Floyd 

Re: 

Mr. Floyd, Thanks for sending the signed order. On Monday, Feb 2, 2105, I met with Bill and Linda at PPB. I did a 

general walk thru. Today Tuesday Feb 3rd, I met with the Scurlock's, GM Jason Williams and Becky Williams during their 

"staff management meeting". I briefly met the exec chef Justin. I now have a better understanding of the operations at 

PPB. 

I have completed my initial assessment of PPB. I have no immediate concerns. I will review the accounts payable and 

payroll process. I'm considering changes in the accounts payable and payroll process. 

Linda Scurlock was very helpful. I will continue working with her. I've asked her to work Monday thru Friday 1 PM until 7 

PM. She will perform the same general duties with my over site. 

William Scurlock,( per the order) is restrained from PPB, without my consent or request for help. 

Mr. Scurlock has good knowledge of the PPB physical plant. As repairs, modifications and improvements are needed, 

I've instructed Mr. Scurlock to notify me via text or telephone before completing these jobs. I will allow Mr. Scurlock to 

continue working with Jan Orr in brewing operations. This includes revisions currently in process and restarting the 

brewing process. I must be present during the time Mrs. Orr is doing her work. 

I understand our need to notify TACB and the insurer of my appointment as receiver. I will prepare documents to be 

presented to Judge Carlow for his approval. I request we send the order signed by Judge Lockhart along with the 

approval from Judge Carlow in the same correspondence to TACB and the insurer. I hope you are agreeable. 

I have applied for the $10K bond. Should have approval shortly. 

Thanks again, Randy Moore 

---Original Message--

From: Cory Floyd <cory@nortonandwood.com> 

To: rmtexarkana <rmtexarkana@aol.com> 

Cc: Candace Carathers <candace@nortonandwood.com> 

Sent: Tue, Feb 3, 2015 5:11 pm 

Mr. Moore, 

The attached order was signed today. 

Please confirm in writing, again, that you wish for Mr. Scurlock to continue as stated in your email dated Monday, 

February 2, 2015. 

I'm forwarding the order to the insurer, as well as the TABC. I'll copy you on my correspondence, for your file, when I 

send it. If you wish to discuss my actions before I send these, please let me know. 

·o .. RBB··.· ... ~ ... o.·· . ·. N. · .. •·.··· ... 

I '"t,. • ~·~ AA T • . 

. D· 

Cory J. Floyd 

315 Main Street• Texarkana, Texas 75501-5604 

Telephone: 903.823.1321 •Facsimile: 903.823.1325 

Web: www.nortonandwood.com 

1 

EXHIBIT 

I 
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