                                                                          ACCEPTED
                                                                      04-15-00449-CV
                                                          FOURTH COURT OF APPEALS
                                                               SAN ANTONIO, TEXAS
                                                                  9/1/2015 8:12:43 AM
                                                                       KEITH HOTTLE
                                                                               CLERK

                  NO. 04-15-00449-CV

                                               FILED IN
                                        4th COURT OF APPEALS
         IN THE COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS
        FOURTH JUDICIAL DISTRICT OF TEXAS
                                        09/1/2015 8:12:43 AM
                 AT SAN ANTONIO           KEITH E. HOTTLE
                                                Clerk


IN THE MATTER OF THE ESTATE OF HUGH BOB SPILLER,
                   DECEASED


                  On Appeal from the
          County Court of Menard County, Texas
              Under Cause No. 2013-02059
          The Honorable Joe H. Loving, Presiding


REAGAN WILLMAN’S RESPONSE TO MOTION TO DISMISS


                Respectfully submitted by:

                W. Calloway Huffaker, Attorney at Law, PLLC
                By: /s Deborah S. McClure
                Deborah S. McClure
                Texas Bar No. 18562635
                P.O. Box 15125
                Amarillo, TX 79105
                Tel: (806) 463-5595 | Fax: (806) 998-5328
                Email: deborahm@huffaker-law.com
                W. Calloway Huffaker
                Texas Bar No. 10187800
                P.O. Box 968-1540 Avenue J
                Tahoka, TX 79373
                Tel: (806) 998-4863 | Fax: (806) 998-5328
                Email: arlener@huffaker-law.com
TO THE HONORABLE FOURTH COURT OF APPEALS:

         Appellant, Reagan Willman (“Willman”) files this response to

Appellee Mary Lee Spiller’s Motion to Dismiss, and respectfully shows the

Court:

         1.   The central issue on appeal is grounded on the propriety of the

agreements made on the record which were disputed by Willman, and never

reduced to writing signed by Willman.        The statement relied upon by

Appellee in moving for dismissal is an integral part of the agreements made

the basis of the appeal. Those agreements were made by Jonathan Cluck,

Willman’s then trial counsel, and were expressly repudiated.

         2.   The relationship of an attorney to his client is one of agency,

and, as such, is clothed with authority to adopt the procedure and method of

transacting his client’s suit and to act for him in the prosecution or defense

of his legal rights. He has no power to compromise his client’s suit, in the

absence of authority to do so. McMillan v. McMillan, 72 S.W.2d 611, 612

(Tex.Civ.App.-Dallas 1934, no writ).

         3.   The waiver of the right to appeal was an integral part of the

other agreements entered on the record, and does not stand alone. Those

agreements were entered into by Jonathan Cluck, but were disputed by

Willman in written pleadings (CR 1:789) and through his testimony on May
6, 2015. (RR May 6, 2015 Pre Trial Hearing 2:15-16). These matters are

apparent on the record, and will be fully briefed in Appellant’s Brief.

      4.     When, as here, the evidence reveals that the attorney did not

have his client’s authority, the agreement will not be enforced. Cleere v.

Blaylock, 605 S.W.2d 294, 296 (Tex.Civ.App.--Dallas 1980, no writ).

5.    Appellee has failed in establishing a basis for dismissal of the appeal

without the opportunity to brief the issues. Accord, Payne v. Campbell, 259

S.W.693, 694 (Tex.Civ.App. —Austin 1924, no writ).

6.    The Motion to Dismiss has no basis in law or in fact. The motion was

presented to needlessly increase the costs of litigation and delay the

proceedings. Willman has had to incur additional fees and costs to respond

to the Motion to Dismiss, and appellate counsel has had to detract from

preparation of Appellant’s Brief in order to address the motion properly.

7.    Willman respectfully requests that the time to file Appellant’s Brief be

abated pending ruling by the Court on the Motion to Dismiss, and that he be

afforded additional time in which to prepare and file Appellant’s Brief.

      For all the foregoing reasons, Appellant Reagan Willman respectfully

prays that this Court will abate the proceedings pending the determination of

Appellee Mary Lee Spiller’s Motion to Dismiss, and upon review of the
motion, overrule the Motion to Dismiss, and provide all further relief to

which Appellant shows himself entitled.

                         Respectfully submitted by:

                         W. Calloway Huffaker, Attorney at Law, PLLC
                         By: /s Deborah S. McClure
                         Deborah S. McClure
                         Texas Bar No. 18562635
                         P.O. Box 15125
                         Amarillo, TX 79105
                         Tel: (806) 463-5595 | Fax: (806) 998-5328
                         Email: deborahm@huffaker-law.com
                         W. Calloway Huffaker
                         Texas Bar No. 10187800
                         P.O. Box 968-1540 Avenue J
                         Tahoka, TX 79373
                         Tel: (806) 998-4863 | Fax: (806) 998-5328
                         Email: arlener@huffaker-law.com


                     CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing Appellant’s Response to Motion
to Dismiss was served on the identified parties by electronic filing on
September 1, 2015.

      Tom Roberson
      P.O. Box 25
      Menard, Texas 76859
      robersonlaw@hotmail.com

      Chris Wallendorf
      722 Front Street, Suite 101
      Comfort, Texas 78013
      chrisw7@hctc.net
Richard C. Mosty
C. Dixon Mosty
222 Sidney Baker, Suite 400
Kerrville, Texas 78028
rmosty@mostylaw.com
cdmosty@mostylaw.com

Mark Marshall
marshall-law@verizon.net
