# No. 14-15-00534-CV

IN THE COURT OF APPEALS FOR THE

FOURTEENTH DISTRICT OF TEXAS

CHARLES G. SHOOK, Appellant,

vs. RICK HALL and TOMMY YOCHAM, Individually and Derivatively on Behalf of Flare Well Testers, Inc., Appellees.
On Interlocutory Appeal from the 127th Judicial District Court of Harris County, Texas, Hon. R.K. Sandill, Presiding Trial Court Cause Number 2015-28269

APPELLANT CHARLES G. SHOOK ’ S SUR-REPLY IN SUPPORT OF EMERGENCY RESPONSE AND REQUEST FOR MORE TIME TO RESPOND TO APPELLEES ’ EMERGENCY MOTION FOR CONTEMPT AND TO REFER CONTEMPT PROCEEDINGS TO TRIAL COURT

MCCATHERN, P.L.L.C. Rodney L. Drinnon Texas Bar No. 24047841 rdrinnon@mccathernlaw.com Nicholas Zugaro Texas Bar No. 24070905 nzugaro@mccathernlaw.com 2000 W. Loop South, Suite 2100 Houston, Texas 77027 Tel: (832) 533-8689 Fax: (832) 213-4842 STOGER LAW FIRM Jonathan S. Stoger Texas Bar No. 00797504 jstoger@stogerlaw.com 2301 Morse Houston, Texas 77019 Tel: (713) 522-2848 Fax: (713) 522-1120

Counsel for Appellant and Accused Contemnor Charles G. Shook ACCEPTED 14-15-00534-CV FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 6/24/2015 11:02:04 AM CHRISTOPHER PRINE

CLERK1 TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Appellant and Accused Contemnor , Charles G. Shook, file s this sur - reply in support of his initial, emergency response to Appellees, Rick Hall and Tommy Yocham, Individually and Derivatively on Behalf of Flare Well Testers, Inc. ’ s, E mergency M otion for C ontempt and R equest to R efer C ontempt P roceedings to the District Court

. I. Request for Time to Fully Respond to Motion There is no compelling reason for Appellees to seek emergency relief . A charge of contempt is quasi

- criminal in nature and subjects the contemnor to the very real possibility of incarceration

. A contemnor has a due process right under the United States and Texas Constitutions to notice and an opportunity to be heard and an adequate time to respond

. See Ex p arte Johnson , 654 S.W.2d 415, 420 (Tex. 1983); Ex parte Gordon , 584 S.W.2d 686, 688 (Tex. 1995). The undersigned have
represe nted clients in contempt proceedings before and have yet to participate in a

case , other than this one , wh ere contempt was sought on an emergent basis . The underlying facts and circumstances concerning the contempt charge will not change if Appellant is gi ven sufficient time to respond , and he ask s for at least the ten

- day period under T EX . R. A PP . P. 10.3(a) to respond to appellate motions.
II. Filing Emergency Motions is Appellees ’ Calculated Strategy Throughout the District Court proceedings, Appellees have filed nearly every2 motion on an emerg ency basis, as they do here. This has the effect of depriving Appellant of a full opportunity to brief the issues and respond. Appellees ’ emergency motion here w as filed at 9:06 a.m. on Monday, June 22, 2015 , at a time when Appellant ’ s counsel were working on other matters. Because the motion was filed on an emergency basis, counsel had to put aside important work for other clients, that was also subject to pressi ng deadlines, to attempt to draft a response. To show the Court that a response would be forthcoming, counsel filed an initial, emergent response and requested the normal ten days to file a complete response . To fully respond and represent their client ’ s i nterests , the undersigned need time to research the legal issues and meet with their client.
III. Appellant Strongly Denies Appellees ’ Contempt Charges Appellees misrepresent Appellants ’ position in suggesting that he admits to the charges of contempt. Appellant strongly denies the charges lodged against him. Despite Appell ees ’ characterization of the facts, the District Court has never found him in conte mpt of court. No contempt citation has ever been entered against him. Appellant strongly denies that he violated the terms of the Temporary Injunction Order and would, if required, mount a defense that any funds transferred were from a different company than the one in the Temporary Injunction Order. At this point, Appellant should not be required to put on his entire defense to respond to Appellees ’ emergency motion. He should be entitled to at least ten days3 to respond to the motion.
IV. The District Court Proceeded Forward on Contempt Without Jurisdiction It stands undisputed by Appellees that the District Court proceeded forward with their contempt motion without any jurisdiction to do so. T he District Court did
not care about the lack of jurisdiction and encouraged Appellant to file a writ of mandamus if he was unhappy. A three

- hour contempt hearing, in the absence of jurisdiction, then went forward over Appellant ’ s objection.
V. Judicial Economy Would Best Be Served by Maintaining Jurisd iction One of the issues Appellant intends to raise in the instant interlocutory appeal and in response to contempt is that the underlying Temporary Injunction Order is void. A party cannot be held in contempt for violating a void order. Ex parte Shaffer , 649 S.W.2d 300, 301

- 02 (Tex. 1983). Despite Appellees ’ disparagement of the
“ Great Writ ” of Habeas Corpus, it is the device used to challenge unlawful contempt citations, include those based on a void order. See id. By maintaining jurisdiction over the c ontempt proceeding, either directly or by making only a limited referral to the District Court for findings and recommendations , see T EX . R. A PP . P. 29.4(b), this Court can consider voidness in both the interlocutory appeal and the contempt proceeding, and it would prevent the necessity of filing a habeas corpus petition

. Appellant intends to raise numerous voidness arguments

. Some errors will only be apparent from the reporter ’ s record. E rrors apparent on the face of the record4 include that Appellees did not secure a Writ of Injunction from the District Clerk after the Temporary Injunction Order was signed , or serve the non

- existent Writ on Appellant. See Docket Sheet, Ex. 1 (no Writ of Injunction appears and no return of service for a Writ appears) ; see also T EX . R. C IV . P. 687

- “ Requisites of Writ ” (the
Writ of Injunction must be prepared by the clerk and include the clerk ’ s signature and seal); T EX . R. C IV . P. 688

- “ Clerk to Issue Writ ” ( “ When the petition, order of the judge and bond have been filed, the clerk shall issue the temporary restraining order or temporary injunction, as the case may be, in conformity with the terms of the order, and deliver the same to the sheriff or any constable ...

. ” ); T EX . R. C IV . P. 689 – “ Servic e & Return ” ( “ The officer receiving a writ of injunction shall indorse thereon the date of its receipt by him, and shall forthwith exercise the same by delivering to the party enjoined a true copy thereof. The officer must complete and file a return in acc ordance with Rule 107. ” ). There are many other errors with the T emporary I njunction O rder and proceeding, but at this point, Appellant should not be required to mount his entire defense on an emergency basis and asks for at least ten days to prepare his response. PRAYER For these reasons, Appellant and Alleged Contemnor , Charles G. Shook, continues to pray that the Court set a reasonable time to respond to Appellees, Rick Hall and Tommy Yocham, Individually and Derivatively on Behalf of Flare Well5 Testers, Inc. ’ s, emergency motion s for contempt and to refer contempt proceedings to the District Court, that the Court deny the motion s in all things, and that Appellant be granted any further he is entitled to, including court co sts.

Respectfully submitted, /s/ Rodney L. Drinnon Rodney L. Drinnon Texas Bar No. 24047841 rdrinnon@mccathernlaw.com Nicholas Zugaro Texas Bar No. 24070905 nzugaro@mccathernlaw.com McCathern, P.L.L.C. 2000 W. Loop South, Suite 2100 Houston, Texas 77027 Tel: (832) 533

- 8689 Fax: (832) 213

- 4842 /s/ Jonathan S. Stoger Jonathan S. Stoger Texas Bar No. 00797504 jstoger@stogerlaw.com Stoger Law Firm 2301 Morse Houston, Texas 77019 Tel: (713) 522

- 2848 Fax: (713) 522

- 1120

Attorneys for Appellant and Alleged Contemnor Charles G. Shook

CERTIFICATE OF COMPLIANCE
I cert ify under T EX . R. A PP . P. 9.4 that this Response , excluding those portions that do not count toward s the total limit , contains 1, 06 5 words , as measured by the word count feature in Microsoft Word 201 3

. The font used is Times New Roman, 14

- Point for the main text, and Time New Roman, 12

- Point for the footnote text.
/s/ Rodney L. Drinnon Rodney L. Drinnon6 CERTIFICATE OF SERVICE I certify that on June 2 4 , 2015, I served a true and correct copy of this Sur

Reply on all counsel of record, as reflected below, via e

- service through efile.txcourts.gov.
/s/ Rodney L. Drinnon Rodney L. Drinnon

Ashish Mahendru amahendru@thelitigationgroup.com Darren A. Braun dbraun@thelitigationgroup.com Mahendru, P.C. 639 Heights Boulevard Houston, Texas 77007 Attorneys for Appellees Rick Hall and Tommy Yocham, Individually and Derivatively on Behalf of Flare Well T esters, Inc.