                                                                        ACCEPTED
                                                                    01-14-01030-CV
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               8/13/2015 7:39:19 AM
                                                              CHRISTOPHER PRINE
                                                                             CLERK

            NO. 01-14-01030-CV

                   IN THE                  FILED IN
                                    1st COURT OF APPEALS
          FIRST COURT OF APPEALS        HOUSTON, TEXAS
             AT HOUSTON, TEXAS      8/13/2015 7:39:19 AM
  ______________________________________
                                    CHRISTOPHER A. PRINE
                                                 Clerk
                 TARRIS WOODS
                  -Appellant-

                      VERSUS

SANDRA T. KENNER AND CHARLES E. TWYMON, JR.
                 -Appellee-
   ______________________________________
                On Appeal from the
        Probate Court of Galveston County
         Trial Court Case No. PR-0075144
        Hon. Kimberly Sullivan, Presiding
  _____________________________________________


    APPELLANT'S RESPONSE TO APPELLEE’S
            MOTION FOR DAMAGES


                               Douglas T. Godinich
                               Attorney at Law
                               SBN: 24007244
                               2727 Broadway
                               Galveston, Texas 77550
                               (409) 763-2454 (telephone)
                               (409) 736-4309 (facsimile)
                               Attorney for Appellant
                               Tarris Woods




                        1
TO THE HONORABE JUSTICES OF SAID COURT:

       Appellant   Tarris    Woods     asks    the   Court     to   deny

appellee’s motion for damages.

                           A.INTRODUCTION

1.     Appellant   is     Tarris   Woods;      Appellee   is    Sandra

Kenner.

                   B. ARGUMENT & AUTHORITIES

2.     Although the Court has the authority under Texas

Rule    of    Appellate    Procedure     45    to    impose    damages

against a party for filing a frivolous appeal, this is

not a case in which the Court should do so.

3.     An appealing party cannot be sanctioned for filing

a frivolous appeal unless the party had no reasonable

belief that the judgment could be reversed. Damages are

appropriate only in “truly egregious” circumstances.

City of Houston v. Precast Structures Inc., 60 S.W.3d

331,    340   (Tex.App.-Houston        [14th    Dist.]    2001,     pet.

denied).

4.     The motion for damages should be denied because

appellant:



                                   2
4(a).     Appellant filed his objections to the findings

of facts and conclusion of law with the trial court on

December 18, 2014. (CR: 64-67)The challenged issues

under this case number is outlined in number six (6)

which states:

    “Charles E. Twymon Jr., was appointed as a co-
    independent administrator… [C]harles E. Twymon,
    Jr., received consideration from the movant for the
    sale of the property as a court appointed
    administrator and the sale was approved by this
    court.”

4(b).     Appellant filed his objections to the findings

of facts with the trial court on December 18, 2014 under

case number 01-14-01029-CV (CR: 97-100). The challenged

issues in that case is outlined in number four (4) which

states:

    “The proposed findings of fact submitted by          Mr.
    McQuage fails in part based on the fact that         the
    findings makes little or no mention about            the
    heirship proceedings or basis for vacating           the
    Appointment of Administrators”

    Appellee cites the case of Heard v. City of Dallas,

456 S.W.2d 440, 445 (Tex. Civ. App. 1970), writ refused

N.R.E.    (Oct.   7,   1970)   which   states:   ‘Rule   298

contemplates that the request for further additional or

amended findings shall specify the further additional
                               3
or amended findings that the party making the request

desires the trial court to make and file.’

     Appellant    therefore    complied          by   specifying      the

additional or amended findings as outlined above.


4(c).     Appellee     next    makes        the       argument       that

Appellant moved this court to enjoin the continuation

of   Appellee’s     Sandra    Kenner’s          lawsuit     to   recover

damages   arising    from    the       Appellant      for   withholding

possession of their jointly owned property and “offered

nothing to invoke this Court’s power to preserve its

appellate jurisdiction…”


4 (d).    The Order Probating Last Will and Testament as

a Muniment of Title (CR:38-39) states that

     “On this day came on to be heard the Application
     filed herein by Charles E. Twymon, Jr., and Sandra
     T. Kenner…”
4 (e).    In   Appellee’s     brief       Mr.    McQuage     makes    the

following statement:

     “Mr. Twymon, Jr., prosecuted his rights in this




                                   4
         proceeding through an attorney of record1”
The above statement can be shown either to mislead this

Court by Appellees counsel or an attorney of record in

this case is not being candor to this tribunal as

further outlined below.


4(f).             In the hearing held on July 27, 2015 in the

County Court at Law Number Three (3) under cause number

CV-74132 of Galveston County Texas, appellee’s counsel,

Mr.       McQuage            makes          the       following              statement               to      yet

another tribunal:

         “We have two homestead claimants to this property”.
         (See: Appendix “1” pg. 15; 5-6)

         If we look at the Order Probating Last Will and

Testament as a Muniment of Title (CR: 38-39) we have

two applicants Charles E. Twymon, Jr., and Sandra T.

Kenner so what happened to Charles E. Twymon, Jr., as

a party to the above case?

         Maybe the statement made by appellee’s counsel as

outlined below would explain Charles E. Twymon, Jr.,




1
  Appellant request that this Court take judicial notice of Appellee’s Original Brief filed on July 15, 2015, which
is hereby incorporated herein as Exhibit “2” as if fully stated herein.
                                                         5
rights and how they will be effected.

    “That’s a totally different deal. That’s not a
    conveyance through the administration or anything
    like that. That’s just the two Twymon brothers
    giving deed to their interest to Mr. Woods.” (See:
    Appendix “1” pg. 22; line 9-13)
4(g).      On June 15, 2015, Appellant filed his Motion

for Temporary Order Staying Enforcement of the Judgment

which cited Tex.R.App.P 24 which functions to preserve

the status quo of the matters in litigation as they

existed prior to the issuance of the order or judgment

from which an appeal is taken. Citing: Alpert v. Riley,

274 S.W.3d 277, 297 (Tex.App.-Houston [1st Dist.] 2008,

pet. denied).


4(h).      Appellant attached seven (7) exhibits to the

above motion. Exhibit one (1) is a certified copy of

the warranty deed that was filed with the Galveston

County   Clerk’s   office   on       September    25,   2012   which

granted, sold and conveyed all of the property to the

Appellant.


4 (i).     Appellee’s    counsel,       Mr.     McQuage   makes     a

judicial     admission   “[T]hat’s       just    the    two    Twymon


                                 6
brothers giving deed to their interest to Mr. Woods.”

(See: Appendix “1” pg. 22; line 11-13)


4(j).    The next issue that is raised by the Appellee

is based on the allegation that Appellant refused to

submit the complete record of the proceeding on the

supersedeas bond.


4(k).    Appellee filed her response to the Motion for

Review of Excessive Supersedeas Bond on June 16, 2015,

raising the objection that a full copy of the transcript

was not attached.


4(l).    Appellant filed his Counter-Response on June

17, 2015 and attached the full version of the transcript

to   comply   with   appellee’s   objection   and     which   the

Honorable Justice Jennings, acting individually, ruled

on July 9, 2015.


4 (m).   Appellee’s     counsel   has   failed   to   make    any

determination of representation of Charles Twymon, Jr.,

because in the Application for Probate of Copy of Will

as Muniment of Title, Charles Twymon, Jr., was a named

executor (CR: 3) Charles Twymon, Jr., is the only person
                              7
best situated to resolve the ambiguity regarding the

current representation of Charles Twymon, Jr., as an

individual and Charles Twymon, Jr., as co/independent

Executor of the Estate of Charles Twymon, Sr.

                             II.

5.    Appellant request that this court exercise prudence

and   caution    and   deliberate   most        carefully   before

awarding appellee’s sanctions. see: RDI Mech., Inc. v.

WPVA, L.P., No. 01-06-00962-CV, 2008 WL 920315, at *3

(Tex. App. Apr. 3, 2008)citing Smith v. Marshall B.

Brown, P.C., 51 S.W.3d 376, 381 (Tex.App.-Houston [1st

Dist.] 2001, pet. denied). After objectively reviewing

the   record    from   the   viewpoint     of     the   Appellant,

Appellant has shown that he had reasonable grounds to

believe the judgment could be reversed. Id. Therefore,

Appellant request that this court decline to conclude

that Appellant’s appeal is frivolous.

                              Respectfully submitted,


                              __/S/_Douglas T. Godinich _
                              Douglas T. Godinich
                              Texas Bar No 24007244
                              2727 Broadway
                              Galveston, Texas 77550

                               8
Tel: (409) 763-2454
Fax: (409) 763-4309
Attorney for Appellant Tarris
Woods




9
                     Certificate of Service

    A copy of this notice is being filed with the

appellate clerk in accordance with rule 25.1(e) of the

Texas Rules of Civil Procedure. I certify that a true

copy of this Appellant’s Response to Appellee’s Motion

for Damages was served in accordance with rule 9.5 of

the Texas Rules of Appellate Procedure on each party or

the attorney for such party indicated below by first

class   mail   and   or   fax   transmittal   and   or   by   hand

delivery.



                                _/s/ Douglas T. Godinich
                                Douglas T. Godinich

By E-Serve
Thomas W. McQuage
P.O. Box 16894
Galveston, Texas 77552
TEL: 409-762-1104
mcquage@swbell.net




                                10
                          NO. 01-14-0030-CV

                              IN THE
                     FIRST COURT OF APPEALS
                       AT HOUSTON, TEXAS
              ______________________________________

                            TARRIS WOODS
                              -Appellant-

                                  VERSUS

       SANDRA T. KENNER AND CHARLES E. TWYMON, JR.
                           -Appellee-
            ______________________________________
                             On Appeal from the
                     Probate Court of Galveston County
                      Trial Court Case No. PR-0075144
                   Hon. Judge Kimberly Sullivan, Presiding
              _____________________________________________



                       APPELLANT’S APPENDIX



1.   Transcript of Oral Hearing in the County Court at Law…………….. Exhibit 1




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