                                                                             ACCEPTED
                                                                         03-16-00091-CV
                                                                               13096560
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   10/6/2016 10:51:57 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                       NO. 03-16-00091-CV

                                                 FILED IN
                                          3rd COURT OF APPEALS
                IN THE COURT OF APPEALS        AUSTIN, TEXAS
            FOR THE THIRD COURT OF APPEALS10/6/2016 10:51:57 AM
              DISTRICT OF TEXAS AT AUSTIN     JEFFREY D. KYLE
                                                   Clerk



         JAMES A. DAVIS AND VERONICA L. DAVIS
                             Appellants,

                                v.

     STATE FARM LLOYDS TEXAS AND GERALD KROUSE,
                            Appellees.


                    On Appeal from the 250th
          Judicial District Court of Travis County, Texas


          BRIEF OF APPELLEE, GERALD KROUSE



APPELLEE REQUESTS ORAL ARGUMENT

                                     Gregory A. Whigham
                                     State Bar No. 21266800
                                     MacINNES, WHIGHAM &
                                     SIEFKEN, L.L.P.
                                     3305 Northland Drive, Suite 205
                                     Austin, TX 78731
                                     (512) 477-6813 Telephone
                                     (512) 477-7573 Facsimile

                                     ATTORNEYS FOR APPELLEE
                                     GERALD KROUSE
                              NO. 03-16-00091-CV


                      IN THE COURT OF APPEALS
                  FOR THE THIRD COURT OF APPEALS
                    DISTRICT OF TEXAS AT AUSTIN


                JAMES A. DAVIS AND VERONICA L. DAVIS

                                             Appellants,

                                        v.

         STATE FARM LLOYDS TEXAS AND GERALD KROUSE,

                                             Appellees.


                 BRIEF OF APPELLEE, GERALD KROUSE


TO THE HONORABLE COURT OF APPEALS:

      Appellee, GERALD KROUSE respectfully presents this his Brief of Appellee

in support of the Order Denying Plaintiffs’ Motion to Reinstate, signed on January

19, 2016, by the 345th District Court, Travis County, Texas, and in support of the

preceding Order, signed on November 16, 2015, by that same District Court (which

Order dismissed Cause No. D-1-GN-13-001724, following Plaintiffs/Appellants’

Notice of Non-Suit), and respectfully represents the following:

                                         i
                 IDENTITY OF PARTIES AND COUNSEL

Appellants/Plaintiffs:     James A. Davis and Veronica L. Davis

Trial/Appellate Counsel:   Veronica L. Davis
                           State Bar No. 05557300
                           Law Office of Veronica L. Davis
                           226 N. Mattson
                           West Columbia, Texas 77486
                           Telephone: 979-345-2953
                           Facsimile: 979-345-5461

Appellee/Co-Defendant:     Gerald Krouse

Trial/Appellate Counsel:   Robert A. MacInnes
                           State Bar No. 12760550
                           Gregory A. Whigham
                           State Bar No. 21266800
                           MacINNES, WHIGHAM & SIEFKEN, L.L.P.
                           3305 Northland Drive, Suite 205
                           Austin, TX 78731
                           Telephone: 512-477-6813
                           Facsimile: 512-477-7573

Appellee/Co-Defendant:     State Farm Lloyds Texas

Trial/Appellate Counsel:   Edward F. Kaye
                           State Bar No. 24012942
                           Skelton & Woody
                           248 Addie Roy Rd., Ste. B-302
                           Austin, Texas 78746
                           Telephone: 512-651-7000
                           Facsimile: 512-651-7001




                                   ii
                            PARTY REFERENCES

References to Appellee, Gerald Krouse, will sometimes be “Krouse”

References to Appellee, State Farm Lloyds Texas, will sometimes be “State Farm”




                          CITATION REFERENCES

Clerk’s Record will be cited as “CR”.

Supplemental Clerk’s Record will be cited as “SCR”.




                                        iii
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PARTY REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

CITATION REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The Order Denying Plaintiffs’ Motion to Reinstate, signed on January 19,
2016, by the 345th District Court, Travis County, Texas, and the preceding
Order, signed on November 16, 2015, by that same District Court (which Order
dismissed Cause No. D-1-GN-13-001724, following Plaintiffs/Appellants’ Notice
of Non-Suit), are final, disposing of all issues in that Cause Number . . . . . 3, 6

B. The Trial Court did not err in refusing to allow venue transfer once the
previous severance order was granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

C. The Trial Court did not err in signing its Order Vacating Prior “Order” &
Order on Plaintiffs’ Motion for Sanctions, Motion to Compel, and Motion for
Continuance, signed on July 15, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8

D. The Trial Court did not err in refusing to grant a continuance in Cause No.
D-1-GN-13-001724 on November 16, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9



                                                         iv
E. The Trial Court did not err in signing its Order Denying Plaintiffs’ Motion
to Reinstate, signed on January 19, 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

F. The Trial Court did not err in signing its Order Sustaining Contest to
Affidavit of Indigence Inability to Pay Fees and Related Costs of Appeal, signed
on March 8, 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

G. There is nothing in the record before this Honorable Appellate Court to
demonstrate that the Court made any “determination of mistake” that allegedly
forced Plaintiffs/Appellants to non-suit Cause No. D-1-GN-13-001724 . . 5, 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                          v
                                        INDEX OF AUTHORITIES

                                                         CASES

Ashpole v. Millard, 778 S.W.2d 169 (Tex. App-Houston [1st Dist.]) . . . . . . . . . . 7

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) . . . . . . . . . . 7

Couch Mortgage Company v. Roberts, 544 S.W.2d 944 (Tex. App.-Houston [1st Dist.]
1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Hjalmarson v. Langley, 840 S.W.2d 153 (Tex. App.-Waco 1992) . . . . . . 7, 10, 11

Lentino v. Front National Bank, 159 S.W.3d 651 (Tex. App.-Houston [14th Dist.])
.................................................................. 7

McClendon v. State Farm Mutual Automobile Insurance Company, 796 S.W.2d 229
(Tex. App.-El Paso 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

United States Fidelity and Guaranty Company v. Beuhler, 597 S.W.2d 523 (Tex.
App.-Beaumont 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                              vi
                         STATEMENT OF THE CASE

      Nature of the case. The Plaintiffs/Appellants brought Cause No. D-1-GN-12-

004077 in the 345th District Court, Travis County, Texas, against both

Defendants/Appellees, asserting a right to tort and contractual damages relating to

three automobile claims and two homeowner claims [CR: 4-28].

      Course of proceedings. The Trial Court subsequently signed its Order, on May

22, 2013, which essentially severed the automobile claims from the homeowner

claims [CR: 41-43]. The latter remained in Cause No. D-1-GN-12-004077, and the

former were assigned to a newly created Cause No. D-1-GN-13-001724, in the 250th

District Court. Furthermore, that same Order abated all contractual and extra-

contractual claims in Cause No. D-1-GN-13-001724.

      Trial Court Disposition. The Trial Court signed its Order Denying Plaintiffs’

Motion to Reinstate, signed on January 19, 2016, and its preceding Order, signed on

November 16, 2015, (which Order dismissed Cause No. D-1-GN-13-001724,

following Plaintiffs/Appellants’ Notice of Non-Suit) [CR: 282; 318].

              STATEMENT REGARDING ORAL ARGUMENT

      This Defendant/Appellee contends that oral argument, which has been

requested, would assist this Honorable Appeals Court in determining the issues

involved in this appeal by the Appellant. Therefore, oral argument should be

                                   Page 1 of 15
permitted.

                           STATEMENT OF FACTS

      The Plaintiffs/Appellants brought Cause No. D-1-GN-12-004077 in the 345th

District Court, Travis County, Texas, against both Defendants/Appellees, asserting

a right to tort and contractual damages relating to three automobile claims and two

homeowner claims [CR: 4-28].

      The Trial Court subsequently signed its Order, on May 22, 2013, which

essentially severed the automobile claims from the homeowner claims [CR: 41-43].

The latter remained in Cause No. D-1-GN-12-004077, and the former were assigned

to a newly created Cause No. D-1-GN-13-001724, in the 250th District Court [CR: 41-

43]. Furthermore, that same Order abated all contractual and extra-contractual claims

in Cause No. D-1-GN-13-001724 [CR: 41-43].

      The Trial Court signed its Order Denying Plaintiffs’ Motion to Reinstate, on

January 19, 2016, and signed its preceding Order, on November 16, 2015, (which

Order dismissed Cause No. D-1-GN-13-001724, following Plaintiffs/Appellants’

Notice of Non-Suit) [CR: 318; 282; 280-281].




                                    Page 2 of 15
                          SUMMARY OF ARGUMENT

   A. The Order Denying Plaintiffs’ Motion to Reinstate and the preceding
         Order, dismissing Cause No. D-1-GN-13-001724 are final,
                   disposing of all issues in that lawsuit

      When the Trial Court signed its Order Denying Plaintiffs’ Motion to Reinstate,

and the preceding Order, dismissing Cause No. D-1-GN-13-001724, all causes of

action in that lawsuit were dismissed, including the previously abated ones.

       B. The Trial Court did not err in refusing to allow venue transfer
               once the previous severance order was granted

      The Trial Court did not err in refusing to allow venue transfer once the

previous severance order was granted.

      There is no record before this Honorable Appellate Court that the

Plaintiffs/Appellants moved for a transfer of venue after the creation of Cause No. D-

1-GN-13-001724.

      Furthermore, Travis County was the venue chosen by the Plaintiffs/Appellants

when this lawsuit was originally commenced. There is no procedural rule permitting

a plaintiff to move for a transfer of venue after that plaintiff has chosen the venue for

the lawsuit.




                                      Page 3 of 15
      C. The Trial Court did not err in signing its Order Vacating Prior
           “Order” & Order on Plaintiffs’ Motion for Sanctions,
              Motion to Compel, and Motion for Continuance

      The Trial Court did not err in signing its Order Vacating Prior “Order” & Order

on Plaintiffs’ Motion for Sanctions, Motion to Compel, and Motion for Continuance,

signed on July 15, 2015.

      The Trial Court, by signing that order, was modifying its previously signed

order (regarding those issues), which was signed on July 9, 2014.

      Furthermore, this issue is completely irrelevant to the issues before this Court,

regarding the finality of the Trial Court’s subsequent dismissal order following the

non-suit by Plaintiffs/Appellants.

              D. The Trial Court did not err in refusing to grant a
                 continuance in Cause No. D-1-GN-13-001724
                            on November 16, 2015

      There is no record before this Honorable Appellate Court regarding a Motion

for Continuance presented by the plaintiffs before the commencement of jury trial on

November 16, 2015, and there is no record before this Honorable Appellate Court

regarding any rulings by the Trial Court regarding any request for any continuance.




                                     Page 4 of 15
               E. The Trial Court did not err in signing its Order
                    Denying Plaintiffs’ Motion to Reinstate

      The Trial Court did not err in signing its Order Denying Plaintiffs’ Motion to

Reinstate, signed on January 19, 2016.

      It is within the sound discretion of the Trial Court to deny that Motion, because

the Plaintiffs/Appellants did not present sufficient grounds to the Trial Court to

support reinstatement of Cause No. D-1-GN-13-001724.

         F. The Trial Court did not err in signing its Order Sustaining
                 Contest to Affidavit of Indigence Inability to
                    Pay Fees and Related Costs of Appeal

      The Trial Court did not err in signing its Order Sustaining Contest to Affidavit

of Indigence Inability to Pay Fees and Related Costs of Appeal, signed on March 8,

2016, because sufficient grounds were presented to the Trial Court to support that

Contest. This Honorable Appellate Court has already resolved this issue, by previous

Order in this appeal.

      G. There is nothing in the record before this Honorable Appellate
       Court to demonstrate that the Court made any “determination
          of mistake” that allegedly forced Plaintiffs/Appellants to
                   non-suit Cause No. D-1-GN-13-001724

      There is no record before this Honorable Appellate Court regarding any

“determination of mistake” by the Trial Court which allegedly forced

Plaintiffs/Appellants to non-suit Cause No. D-1-GN-13-001724.

                                     Page 5 of 15
                                  ARGUMENT

   A. The Order Denying Plaintiffs’ Motion to Reinstate and the preceding
         Order, dismissing Cause No. D-1-GN-13-001724 are final,
                   disposing of all issues in that lawsuit

      When the Trial Court signed its Order Denying Plaintiffs’ Motion to Reinstate,

and the preceding Order, dismissing Cause No. D-1-GN-13-001724, all causes of

action in that lawsuit were dismissed, including the previously abated ones.

      The underlying lawsuit originally bore Cause No. D-1-GN-12-004077, filed

in the 345th District Court, Travis County, Texas [CR: 4-28]. That lawsuit contained

causes of action for damages relating to three different automobile claims and two

different homeowner claims [CR: 4-28]. Thereafter, the Trial Court considered the

Motion to Sever and Abate Plaintiffs’ Extra-Contractual Claims, filed by

Defendant/Appellee, State Farm. On May 22, 2013, the Court signed its Order, which

granted that Motion [CR: 41-43]. That Order specified that the automobile claims

were to be severed from the homeowner claims, and assigned Cause No. D-1-GN-13-

001724 [CR: 41-43]. That is the lawsuit underlying this appeal. Furthermore, since

the automobile claims included one claim for Uninsured/Underinsured Motorists

insurance benefits, two claims for personal automobile insurance benefits, and also

included claims for extra-contractual damages by the plaintiffs, the Court, by that

Order, properly abated the contractual and extra-contractual automobile claims until

                                    Page 6 of 15
the resolution of the negligence claims being made against this Defendant/Appellee,

Krouse. See, Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006);

[CR: 41-43].

      When this lawsuit was reached for jury trial, the Plaintiffs voluntary filed their

Notice of Non-Suit [CR: 280-281]. In that Notice of Non-Suit, the Plaintiffs made

no attempt to reserve the abated contractual and extra-contractual causes of action

[CR: 280-281]. Therefore, the entire lawsuit bearing Cause No. D-1-GN-13-001724

was dismissed by the Trial Court’s Order, signed on November 16, 2015, which

Order stated “...this case is DISMISSED” [CR: 282].

      The Plaintiffs thereafter presented their Amended Motion to Reinstate Cause

[CR: 292-317]. On January 19, 2016, the Trial Court signed its Order Denying

Plaintiffs’ Motion to Reinstate [CR: 318]. Accordingly, the entire lawsuit bearing

Cause No. D-1-GN-13-001724, including the abated issues therein, was dismissed.

Lentino v. Front National Bank, 159 S.W.3d 651 (Tex. App.-Houston [14th Dist.]);

Hjalmarson v. Langley, 840 S.W.2d 153 (Tex. App.-Waco 1992); Ashpole v. Millard,

778 S.W.2d 169 (Tex. App-Houston [1st Dist.]), and United States Fidelity and

Guaranty Company v. Beuhler, 597 S.W.2d 523 (Tex. App.-Beaumont 1980).




                                     Page 7 of 15
      Therefore, neither the Trial Court’s Order dismissing Cause No. D-1-GN-13-

001724 nor the Trial Court’s subsequent Order Denying Plaintiffs’ Motion to

Reinstate, signed on January 19, 2016, were in any way interlocutory [CR: 282; 318].

       B. The Trial Court did not err in refusing to allow venue transfer
               once the previous severance order was granted

      The Trial Court did not err in refusing to allow venue transfer once the

previous severance order was granted.

      There is no record before this Honorable Appellate Court that the

Plaintiffs/Appellants moved for a transfer of venue after the creation of Cause No. D-

1-GN-13-001724.

      Furthermore, Travis County was the venue chosen by the Plaintiffs/Appellants

when this lawsuit was originally commenced, under Cause No. D-1-GN-12-004077

[CR: 428]. There is no procedural rule permitting a plaintiff to move for a transfer

of venue after that plaintiff has chosen the venue for the lawsuit.

      C. The Trial Court did not err in signing its Order Vacating Prior
           “Order” & Order on Plaintiffs’ Motion for Sanctions,
              Motion to Compel, and Motion for Continuance

      The Trial Court did not err in signing its Order Vacating Prior “Order” & Order

on Plaintiffs’ Motion for Sanctions, Motion to Compel, and Motion for Continuance,

signed on July 15, 2015 [CR: 96].


                                     Page 8 of 15
      The Trial Court, by signing that order, was simply modifying its previously

signed order (regarding those issues), which previous order was signed on July 9,

2014 [CR: 94-95].

      The Plaintiffs/Appellants rely incorrectly on Couch Mortgage Company v.

Roberts, 544 S.W.2d 944 (Tex. App.-Houston [1st Dist.] 1977). In Couch Mortgage

Company, that appellate court was dealing with a final court order adjudicating the

merits of the cause of action, as would a judgment. Couch Mortgage Company,

supra. Here, the Trial Court was resolving pre-trial issues relating to Plaintiffs’

Motion for Sanctions, Motion to Compel, and Motion for Continuance [CR: 94-96].

      Furthermore, this issue is completely irrelevant to the issues before this Court,

regarding the finality of the Trial Court’s subsequent dismissal order following the

non-suit by Plaintiffs/Appellants.

              D. The Trial Court did not err in refusing to grant a
                 continuance in Cause No. D-1-GN-13-001724
                            on November 16, 2015

      There is no record before this Honorable Appellate Court regarding a Motion

for Continuance presented by the Plaintiffs/Appellants before the commencement of

jury trial on November 16, 2015, and there is no record before this Honorable

Appellate Court regarding any rulings by the Trial Court regarding any request for

any continuance.

                                     Page 9 of 15
               E. The Trial Court did not err in signing its Order
                    Denying Plaintiffs’ Motion to Reinstate

      The Trial Court did not err in signing its Order Denying Plaintiffs’ Motion to

Reinstate, signed on January 19, 2016 [CR: 318].

      It is within the sound discretion of the Trial Court to deny that Motion, because

the Plaintiffs/Appellants did not present sufficient grounds to the Trial Court to

support reinstatement of Cause No. D-1-GN-13-001724. Hjalmarson v. Langley, 840

S.W.2d 153 (Tex. App.-Waco 1992), and McClendon v. State Farm Mutual

Automobile Insurance Company, 796 S.W.2d 229 (Tex. App.-El Paso 1990).

         F. The Trial Court did not err in signing its Order Sustaining
                 Contest to Affidavit of Indigence Inability to
                    Pay Fees and Related Costs of Appeal

      The Trial Court did not err in signing its Order Sustaining Contest to Affidavit

of Indigence Inability to Pay Fees and Related Costs of Appeal, signed on March 8,

2016, because sufficient grounds were presented to the Trial Court to support that

Contest [SCR: 32].

      After the Plaintiff/Appellant, Veronica L. Davis, dropped her claim for

indigency status, the other Plaintiff/Appellant, James A. Davis, filed a motion

challenging the Trial Court’s order sustaining the contests to his indigency before this


                                     Page 10 of 15
Honorable Appellate Court. By Order dated March 31, 2016, this Honorable

Appellate Court denied that motion. Therefore, this issue has already been resolved

by this Honorable Appellate Court.

      In the Appellant’s Brief, regarding this issue, the Plaintiffs/Appellants

reference documents that are not part of the record that is before this Honorable

Appellate Court, and, therefore, should not be considered (See, e.g., Appellant’s

Brief, pp. 18, 20).

       G. There is nothing in the record before this Honorable Appellate
        Court to demonstrate that the Court made any “determination
           of mistake” that allegedly forced Plaintiffs/Appellants to
                    non-suit Cause No. D-1-GN-13-001724

      There is no record before this Honorable Appellate Court regarding any

“determination of mistake” by the Trial Court which allegedly forced

Plaintiffs/Appellants to non-suit Cause No. D-1-GN-13-001724, other than the

matters asserted in the Motion to Reinstate Cause and Amended Motion to Reinstate

Cause filed by the Plaintiffs/Appellants [CR: 292-317]. However, the allegations and

attestations by the Plaintiffs/Appellants regarding this issue in those motions are

vague, ambiguous, and factually in error [CR: 292-317].

      As stated above, the issue of reinstatement was addressed to the sound

discretion of the Trial Court. Hjalmarson v. Langley, 840 S.W.2d 153 (Tex. App.-



                                     Page 11 of 15
Waco 1992), and McClendon v. State Farm Mutual Automobile Insurance Company,

796 S.W.2d 229 (Tex. App.-El Paso 1990).

      The Trial Court denied reinstatement, in its Order Denying Plaintiffs’ Motion

to Reinstate, signed on January 19, 2016 [CR: 318].

                                   CONCLUSION

      The orders of the Trial Court pertaining to dismissal of Cause No. D-1-GN-13-

001724 after the non-suit by the Plaintiffs/Appellants, and pertaining to denying

reinstatement of that lawsuit, were proper, and were within the sound discretion of

the Trial Court.

      The Plaintiffs/Appellants have not presented a record before this Honorable

Appellate Court relating to venue transfer, court order modification, continuance,

contest to indigence, or “determination of mistake”, such that there is no basis for the

Plaintiffs/Appellants to seek any remedy from this Honorable Appellate Court

regarding those issues.

      Furthermore, this Honorable Appellate Court has already ruled upon the

indigency issue herein, previously asserted by the Plaintiffs/Appellants in this appeal.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee, GERALD KROUSE,

respectfully prays the Order Denying Plaintiffs’ Motion to Reinstate, signed on

                                     Page 12 of 15
January 19, 2016, by the 345th District Court, Travis County, Texas, and the

preceding Order, signed on November 16, 2015, by that same District Court (which

Order dismissed Cause No. D-1-GN-13-001724, following Plaintiffs/Appellants

Notice of Non-Suit), be in all things affirmed, that Plaintiffs/Appellants take nothing

against this Appellee, that this Appellee recover his costs, and for any and all other

relief to which he may show himself justly entitled, at law or in equity.



                      CERTIFICATE OF COMPLIANCE

       Defendant/Appellee, Gerald Krouse, pursuant to Texas Rule of Civil Procedure
9.4, certifies that this document is in 14-point font or larger, and, according to the
word count feature on WordPerfect, this document is 3,328.

                                             /S/ Gregory A. Whigham
                                        ________________________________
                                             Gregory A. Whigham




                                     Page 13 of 15
                                 Respectfully submitted,

                                 MacINNES, WHIGHAM & SIEFKEN, L.L.P.
                                 3305 Northland Drive, Suite 205
                                 Austin, TX 78731
                                 512-477-6813 Telephone
                                 512-477-7573 Facsimile


                                      /S/ Gregory A. Whigham
                                 By:_______________________________
                                      Gregory A. Whigham
                                      State Bar No. 21266800
                                      gwhigham@mwstx.com
                                 ATTORNEY FOR APPELLEE,
                                 GERALD KROUSE


                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Brief of Appellee,
Gerald Krouse was served on the parties listed below by the method indicated on this
6th day of October, 2016.

                                             /S/ Gregory A. Whigham
                                        ________________________________
                                             Gregory A. Whigham




                                     Page 14 of 15
By Certified Mail, Return Receipt Requested and Facsimile:

Ms. Veronica L. Davis
Law Office of Veronica L. Davis
226 N. Mattson
West Columbia, Texas 77486

Mr. Edward F. Kaye
Skelton & Woody
248 Addie Roy Rd., Ste. B-302
Austin, Texas 78746




                                  Page 15 of 15
