                                                                           ACCEPTED
                                                                         12-14-0030-cv
                                                          TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                 4/24/2015 11:59:24 AM
                                                                         CATHY LUSK
                                                                                CLERK

                    No. 12-14-00300-CV

                                                      FILED IN
                                               12th COURT OF APPEALS
COURT OF APPEALS FOR THE TWELFTH         DISTRICT OF    TEXAS
                                                    TYLER,  TEXAS
                   TYLER, TEXAS                4/24/2015 11:59:24 AM
                                                    CATHY S. LUSK
                                                        Clerk

   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
                                          TABLE OF CONTENTS
                                                                                                                     Page

INDEX OF AUTHORITIES...................................................................................... 3

RESPONSE TO APPELLEE’S BRIEF ..................................................................... 4

PRAYER .................................................................................................................... 7

CERTIFICATE OF COMPLIANCE ......................................................................... 8

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




Appellant’s Brief                                                                                                   Page 2
                                        INDEX OF AUTHORITIES
                                                                                                                   Page
                                                        CASES

Williams v. Bank One, Texas, N.A.,

15 S.W.3d 110 (Tex. App.-Waco 1999, no pet.) ……………..…………..………4

                                                        RULES
Tex. R. App. P. 9.4(i)(1) ............................................................................................8
Tex. R. App. P. 9.4(i)(2)(C) .......................................................................................8
Tex. R. Civ. P. 245 .....................................................................................................4
Tex. R. Civ. P. 252 .....................................................................................................4




Appellant’s Brief                                                                                                 Page 3
                          RESPONSE 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 Motion 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.

                                “NOSTRADAMUS” 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.

       Appellee 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, even


Appellant’s Brief                                                             Page 4
that which occurred after January 7. This argument presumes the trial court to be

clairvoyant. Appellant would 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.

                                  APPELLEE’S OBSTRUCTION

       Appellee is attempting 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

any 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.

Appellee 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 Substitute was granted. C.R. 131. Despite this discourteous and

unprofessional obstruction, undersigned counsel did his best to represent his client

even before his substitution.




Appellant’s Brief                                                              Page 5
       During this time period, when Appellee was fully aware that Appellant had

new counsel, and refused to provide even a courtesy copy of any documents

related to the litigation, Appellee filed 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 consent during the January 7 hearing. 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 noted 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 that

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 already


Appellant’s Brief                                                              Page 6
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 Counsel. C.R. 131. On the same date the trial

court granted Appellant’s Motion 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 witness was sworn, or anything other than lawyers’

arguments were heard, was on January 7, 2014.

                                      PRAYER

       WHEREFORE, PREMISES 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 - 50

Appellant’s Brief                                                              Page 7
                                       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 7,500 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) because 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 24th day of apRIL,
2015, as follows:

Wayne D. Haglund                                 By facsimile and electronic filing
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

                                       /s/ Bill Pedersen, III
                                        Bill Pedersen, III



Appellant’s Brief                                                              Page 8
