                                                                                ACCEPTED
                                                                            03-14-00267-CV
                                                                                    5010309
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                       4/23/2015 3:25:43 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                  NO. 03-14-00267-CV

                  In the Court of Appeals                   FILED IN
                                                     3rd COURT OF APPEALS
          for the Third Judicial District of Texas       AUSTIN, TEXAS
                          at Austin                  4/23/2015 3:25:43 PM
                                                       JEFFREY D. KYLE
                                                             Clerk
              DAISY WANDA GARCIA,
                Appellant/Defendant,

                             v.

           THOMAS LEE BAUMGARTEN,
               Appellee/Plaintiff.


       Appeal from the 201st Judicial District Court
                  Travis County, Texas
        Trial Court Cause No. D-1-GN-12-002429


APPELLEE’S RESPONSE TO APPELLANT’S EMERGENCY
 MOTION TO ABATE, AND REQUEST FOR SANCTIONS


                           Nicholas P. Laurent
                           State Bar No. 24065591
                           Raymond E. White
                           State Bar No. 21321950
                           MCGINNIS, LOCHRIDGE & KILGORE, L.L.P.
                           600 Congress Avenue, Suite 2100
                           Austin, Texas 78701
                           (512) 495-6000
                           (512) 495-6093 FAX
                           nlaurent@mcginnislaw.com
                           rwhite@mcginnislaw.com

                           ATTORNEYS FOR APPELLEE
                           THOMAS LEE BAUMGARTEN
                                             TABLE OF CONTENTS
SUMMARY OF RESPONSE ............................................................................................. 1

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

ARGUMENT....................................................................................................................... 7

           1.       Garcia abandoned and alienated any homestead rights she may have
                    had when she agreed in a written settlement agreement to vacate and
                    sell the Exposition Property. ......................................................................... 7

           2.       Garcia’s new contention on appeal that she was married to
                    Baumgarten has been waived because it was not raised at the trial
                    court. ............................................................................................................ 10

           3.       The Family Code presumes Garcia and Baumgarten were not
                    married because Garcia waited thirty-four years to make such a
                    suggestion. ................................................................................................... 10

           4.       Garcia should be estopped from asserting her new contention on
                    appeal because it is contrary to her prior, sworn testimony and is
                    contrary to her current representations to this Court. .................................. 11

           5.       Garcia’s Emergency Motion to Abate is nothing more than another
                    attempt to delay these proceedings without cause. ..................................... 13

REQUEST FOR SANCTIONS ......................................................................................... 14

CONCLUSION ................................................................................................................. 15

PRAYER ........................................................................................................................... 16

CERTIFICATE OF CONFERENCE ................................................................................ 17

WORD COUNT CERTIFICATION ................................................................................. 17

CERTIFICATE OF SERVICE .......................................................................................... 18




                                                                 -i-
TO THE HONORABLE THIRD COURT OF APPEALS:

                         SUMMARY OF RESPONSE
      Garcia agreed in a written settlement agreement to vacate and sell the

property at issue in this case, and in doing so, she waived and released all of the

issues on which she bases her Emergency Motion to Abate. Later regretting her

decision to agree to vacate and sell the property, Garcia filed numerous motions

with the trial court and two motions with this Court in an effort to stop the sale.

The trial court denied all of her motions and this Court denied all of her motions.

Garcia also filed a motion with the Supreme Court of Texas to stop the sale and the

Supreme Court of Texas denied her motion. Garcia still to this day has never

posted a supersedeas bond to suspend enforcement of the judgment rendered

against her.

      Now, in yet another eleventh hour attempt to stop the sale of the property

she agreed to sell, Garcia suggests for the first time that she was married to

Mr. Baumgarten and that this new issue she manufactures out of whole cloth

should stop this appeal from proceeding. Garcia’s new argument was never raised

before the trial court, is presumed invalid under the Family Code, and is directly

contrary to her prior, explicit representation to this Court that she was never

married to Mr. Baumgarten. See Appellant’s Brief at p. 3 (“Baumgarten negotiated

the terms of the purchase and arranged that the property would be purchased in



                                       -1-
both their names, as husband and wife, but, of course, they were not married.”

(emphasis added)). In fact, this newly manufactured issue is directly contrary to

one of Garcia’s primary defenses to Mr. Baumgarten’s claims at the trial court –

that Mr. Baumgarten promised to marry her but did not fulfill his promise.

       Garcia’s Emergency1 Motion to Abate is just another delay tactic that should

be denied.

                              STATEMENT OF FACTS
       Baumgarten and Garcia jointly purchased real property in 1979 on

Exposition Blvd. in Austin, Texas (the “Exposition Property”). CR 29-32. They

resided at the Exposition Property together for a few years and then parted ways,

with Baumgarten moving to Houston. CR 61 (p. 78, ln. 7-9). They both continued

to be co-owners of the Exposition Property. By Garcia’s own admission, she and

Baumgarten ceased living together in 1981. See Garcia’s Emergency Motion to

Abate at ¶ 8.

       After Baumgarten moved to Houston, Garcia had lawyers ask him to

gratuitously sign deeds conveying his 1/2 interest in the Exposition Property to her

in 1992 and 2011. CR 185 (p.95, ln. 24-25, p. 96, ln. 1-3), 131-36. Garcia then

threatened to sue Baumgarten and Baumgarten filed the underlying lawsuit seeking



1
 Garcia does not make clear in her motion why she believes the motion should be considered an
emergency or determined on an expedited basis.


                                            -2-
to partition the Exposition Property he co-owned with Garcia in a partition sale.

CR 131-36, 4-8.

      Garcia’s two defenses to Baumgarten’s partition claims were that she had

adversely possessed the property from her cotenant, Baumgarten, and that she had

allowed Baumgarten to be on the deed to the Exposition Property because he

supposedly promised to marry her, but that he did not follow through on his

promise and he should now be estopped from owning an interest in the Exposition

Property. See, e.g., CR 584-85.

      During Garcia’s deposition, she unequivocally stated the following

regarding Baumgarten:

      Q. Have you ever been married?
      A. No.
      Q. And you’re not married now?
      A. No.
CR 461 (p. 14, ln. 3-6) (emphasis added).          See also CR 199 (Baumgarten

deposition) (p. 150, ln. 23-25) (“Q. Well, were you [Mr. Baumgarten] married to

her [Ms. Garcia], that’s the question? A. No.”).

      From the time Garcia and Baumgarten separated in 1981 until March 16,

2015 (when Garcia filed a pro se will contest), Garcia contended she was not

married to Baumgarten. Garcia never suggested or even hinted to the trial court

that she was married to Baumgarten. Indeed, her contention that she was not

married to Baumgarten was a critical part of her defense to Baumgarten’s partition


                                        -3-
claim. See, e.g., CR 584-85. For example, Garcia stated under oath in an affidavit

in responding to Baumgarten’s motion for summary judgment:

      In 1977 I decided to buy the Timber Ridge townhome. I used the
      proceeds of the sale of a rent house in Corpus Christi my father had
      given me to make the down payment. Tom dealt with the realtor and
      arranged for the townhouse to be purchased in our names as husband
      and wife. We never married, although he purchased an engagement
      ring and I assumed we would marry, but we did not.

      In 1979 we sold the Timber Ridge townhome and used the proceeds to
      purchase the home at 1901 Exposition. Again, Tom handled the
      closing for us, and the home [1901 Exposition Blvd.] was purchased
      in both our names, this time not as husband and wife.

CR 331 (emphasis added).

      Garcia’s contention that she was not married to Baumgarten was so

important to her defenses at the trial court that she affirmatively states as much in

page 3 of her brief on the merits currently pending before this Court.           See

Appellant’s Brief at p. 3 (“Baumgarten negotiated the terms of the purchase and

arranged that the property would be purchased in both their names, as husband and

wife, but, of course, they were not married.” (emphasis added)).

      After the trial court correctly rendered summary judgment in favor of

Baumgarten on all of Garcia’s defenses to the partition claims, the parties agreed to

settle the case. CR 312, 383, 532-44. Irrespective of whether they were married or

not, Garcia agreed to pay Baumgarten a certain amount in exchange for his 1/2

interest in the Exposition Property. CR 534. It is undisputed she did not do so.



                                        -4-
CR 547 at Nos. 68, 69 and 550-51 at ¶ 3. The settlement agreement contemplated

such an eventuality and provided that if Garcia did not pay Baumgarten the agreed-

upon amount, Garcia would vacate the Exposition Property, the property would be

sold, and the proceeds would be divided among the parties. CR 536 at ¶ 8.

      The trial court granted Baumgarten summary judgment on his breach of

settlement agreement claim on April 18, 2014, ordered Garcia to vacate the

Exposition Property, ordered that the Exposition Property be sold, and ordered the

proceeds divided among the parties. CR 666-69. This is the judgment Garcia is

appealing in this matter.

      Despite her written agreement and the trial court’s order, Garcia refused to

vacate. Consequently, Baumgarten filed a motion to show cause why Garcia

should not be held in contempt of the trial court’s order.

      After Baumgarten filed the motion to show cause, Garcia asked this Court to

enter an emergency order enjoining and staying the sale of the Exposition Property

pending this appeal. See Cause No. 03-14-00282-CV, In re Daisy Wanda Garcia,

in the Texas Court of Appeals, Third District, at Austin (filed April 28, 2014).

This Court denied Garcia’s request. See Cause No. 03-14-00282-CV, In re Daisy

Wanda Garcia, in the Texas Court of Appeals, Third District, at Austin,

Memorandum Opinion (dated May 16, 2014).




                                         -5-
      The trial court ultimately set the supersedeas bond amount at $175,000,

which represented less than 1/2 of Ms. Garcia’s $352,626 net worth. Garcia filed a

motion with this Court challenging the amount of the supersedeas bond and this

Court denied Garcia’s motion. See Garcia’s Motion for Review of Supersedeas

Deposit Amount dated September 12, 2014. Garcia asked for a writ of mandamus

from the Supreme Court of Texas and the Supreme Court of Texas summarily

denied her writ of mandamus. See Notice from Supreme Court of Texas, Case No.

14-0768, In re Daisy Wanda Garcia, in the Supreme Court of Texas (dated

October 2, 2014).     Garcia also filed a Motion for Emergency Stay with the

Supreme Court of Texas and the Supreme Court of Texas summarily denied her

Motion for Emergency Stay. See id.

      Garcia never posted a supersedeas bond and, consequently, Baumgarten

filed a motion with the trial court seeking to hold Garcia in contempt of court for

refusing to vacate the Exposition Property as required by the trial court’s judgment.

The trial court found Garcia in contempt of court and ordered her to vacate. Garcia

was thereafter forcibly removed from the Exposition Property pursuant to a writ of

possession served by the Travis County Constable’s Office. Pursuant to the trial

court’s order, the Exposition Property is now under contract to be sold.

      On November 21, 2014, Baumgarten passed away.              Paul Baumgarten,

Thomas Baumgarten’s independent executor, filed a Notice of Death of



                                        -6-
Appellee/Plaintiff on December 19, 2014 after applying to probate Thomas

Baumgarten’s will in the Harris County Probate Court No. 2.

      After Garcia discovered the Exposition Property was under contract to be

sold, on March 16, 2015 she filed a so called “will contest” with the Harris County

Probate Court No. 2. In her “will contest,” she now “claims she is the common

law spouse of Thomas Lee Baumgarten. . . .” See Garcia’s Emergency Motion to

Abate, Exhibit 3, ¶ 2. This is the first time Garcia has ever stated she was married

to Baumgarten in these legal proceedings. Garcia’s new contention is a total

fabrication of the facts and runs directly contrary to her numerous representations

to both the trial court and this Court that she was never married to Baumgarten.

                                  ARGUMENT
1.    Garcia abandoned and alienated any homestead rights she may have
      had when she agreed in a written settlement agreement to vacate and
      sell the Exposition Property.
      In some circumstances, a surviving spouse may continue to occupy

homestead property, but only so long as he or she does not abandon or alienate the

property. TEX. CONST. art. XVI, § 52; TEX. ESTATES CODE §§ 102.002-102.006;

Copeland v. Tarrant Appraisal Dist., 906 S.W.2d 148, 151 (Tex. App.—Fort

Worth 1995, writ denied). However, a homestead, even as to a surviving spouse,

will lose its status as the homestead if it is abandoned or alienated. See Patterson

v. First Nat’l Bank of Lake Jackson, 921 S.W.2d 240, 246 (Tex. App.—Houston



                                        -7-
[14th Dist.] 1996, no writ); Long Bell Lumber Co. v. Miller, 240 S.W.2d 405, 406

(Tex. Civ. App.—Amarillo 1951, no writ).

      Garcia agreed with Baumgarten in a written settlement that if she did not pay

Baumgarten as agreed on or before a date certain for his 1/2 share of the

Exposition Property, she would vacate and the Exposition Property would be sold:

      Notwithstanding any of the foregoing, if Garcia is unable to obtain a
      reverse mortgage within 90 days from the effective date of this
      Agreement, . . . Baumgarten and Garcia agree that Garcia will vacate
      the Property within 60 days thereafter, and the parties will list the
      Property for sale at a price of the average of three appraisals, will use
      a real estate agent selected by Baumgarten, will sell the Property to
      the first person or entity who offers at least the list price, with
      Baumgarten and Garcia splitting the sales proceeds and costs evenly
      (excluding taxes and insurance, which shall be borne solely by
      Garcia), and will sign all documents necessary to accomplish such a
      sale.

CR 536 at ¶ 8.

      Garcia’s agreement to vacate and sell the Exposition Property can be

construed as nothing other than a conscious and deliberate abandonment and

alienation of any homestead rights that may have existed, assuming she even had

any such rights to begin with. Nothing the Houston probate court determines will

vary the terms of the written agreement Garcia executed that constituted a waiver

and release of any homestead rights that may have existed.            Moreover, the

settlement agreement has already been enforced by the trial court; there is nothing

the Houston probate court needs to do or can do regarding the Exposition Property.



                                        -8-
Additionally, even if Baumgarten and Garcia had been married, which they never

were, Baumgarten’s will lawfully bequeathed all of his assets to his brother, Paul

Baumgarten, which would properly include Baumgarten’s purported “community

half” of the Exposition Property, depriving Garcia of any standing for her self-

styled “will contest.” Garcia’s Emergency Motion to Abate can be denied on this

basis alone.

      Moreover, in the settlement agreement Garcia explicitly released the claims

upon which her Emergency Motion to Abate are based. The settlement agreement

provides:

      Garcia and each of her respective Representatives release, settle,
      compromise, extinguish, relinquish, absolve, disclaim and forever
      discharge Baumgarten and each of his respective Representatives of
      and from any and all rights, claims, counterclaims, charges, causes of
      action, demands, debts, liabilities, agreements, promises, damages,
      losses and claims for recovery, fixed or contingent, liquidated or
      unliquidated, known or unknown, arising at any time from the
      beginning of time to the Effective Date of this Agreement, in
      connection with, arising from, or to arise by reason of, any matters
      asserted in or which might have been asserted in the Lawsuit or which
      relate in any way, directly or indirectly, to the Lawsuit, any dealings
      between Baumgarten and Garcia, and/or any other matter, including
      but not limited to those claims asserted in the Lawsuit for partition,
      declaratory relief, and attorneys’ fees; provided, however, that this
      release does not affect the Parties’ right and obligations under the
      terms of this Agreement.

CR 537 at ¶ 10. Garcia’s Emergency Motion to Abate can also be denied on this

basis alone.




                                       -9-
2.     Garcia’s new contention on appeal that she was married to Baumgarten
       has been waived because it was not raised at the trial court.
       Garcia suggests in her Emergency Motion to Abate that she has been

married to Baumgarten since at least 1969. See Garcia’s Emergency Motion to

Abate at ¶ 6. Garcia, however, never once suggested to the trial court that she had

been married to Baumgarten at any time, much less some thirty-plus years. Rather,

Garcia’s contention that she was married to Baumgarten is being raised for the first

time on appeal. Garcia’s failure to raise this argument before the trial court waives

the argument in its entirety.        See TEX. R. APP. P. 33.1(a)(1)(A); Larsen v.

FDIC/Manager Fund, 835 S.W.2d 66, 74 (Tex. 1992) (“Under Texas procedure,

absent ‘fundamental error’ not in issue in this appeal, a court of appeals has no

discretion to reverse an error-free judgment based on a new argument (‘unassigned

error’ in the trial court) raised for the first time on appeal.”).

3.     The Family Code presumes Garcia and Baumgarten were not married
       because Garcia waited thirty-four years to make such a suggestion.
       Even if Garcia had not waived and released any homestead rights she may

have had in the written settlement agreement and had preserved this argument for

appeal, her new contention that she was married to Baumgarten is time barred as a

matter of law. The Family Code provides:

       If a proceeding in which a marriage is to be proved as provided by
       Subsection (a)(2) [an informal or common law marriage] is not
       commenced before the second anniversary of the date on which the



                                           - 10 -
      parties separated and ceased living together, it is rebuttably presumed
      that the parties did not enter into an agreement to be married.

TEX. FAMILY CODE § 2.401(b).

      Garcia states in her Emergency Motion to Abate that she was married to

Baumgarten in 1969. See Emergency Motion to Abate at ¶ 6. Garcia further

concedes she ceased living with Baumgarten in 1981. See id. at ¶ 8. Under the

plain terms of the Family Code, then, there is a rebuttable presumption that Garcia

and Baumgarten were not married. Garcia and Baumgarten have also both testified

under oath that they were never married to each other, which effectively destroys

any possibility that the presumption could ever be rebutted. See CR 461 (p. 14, ln.

3-6) and CR 199 (p. 150, ln. 23-25). Garcia’s desperation, flip-flop claim that she

was married to Baumgarten is thirty-four years too late because she and

Baumgarten ceased living together in 1981. See TEX. FAMILY CODE § 2.401(b).

4.    Garcia should be estopped from asserting her new contention on appeal
      because it is contrary to her prior, sworn testimony and is contrary to
      her current representations to this Court.
      Garcia has represented on numerous occasions to both the trial court and this

Court that she was not married to Baumgarten. In Garcia’s brief on the merits she

filed with this Court on July 1, 2014, she states: “Baumgarten negotiated the terms

of the purchase and arranged that the property would be purchased in both their

names, as husband and wife, but, of course, they were not married.” Appellant’s

Brief at p. 3 (emphasis added). Garcia also previously testified:


                                        - 11 -
      Q. Have you ever been married?
      A. No.
      Q. And you’re not married now?
      A. No.
CR 461 (p. 14, ln. 3-6) (emphasis added).

      Additionally, Garcia’s defense to Baumgarten’s partition claims at the trial

court and before this Court is that she allowed Baumgarten to be on the deed to the

Exposition Property because he promised to marry her, but alas he did not marry

her and thus did not fulfill his promise. This defense premised on her non-

marriage to Baumgarten was first asserted in Garcia’s First Amended Original

Answer filed with the trial court on March 22, 2013. CR 12-16. This defense

premised on her non-marriage to Baumgarten was reiterated by Garcia in her

Second Amended Original Answer filed with the trial court on July 30, 2013 and in

her Third Amended Original Answer filed with the trial court on April 8, 2014.

CR 384-89 and CR 582-88. Up until a week ago, Garcia has consistently and

repeatedly claimed that she and Baumgarten were never married.

      Garcia also adamantly reaffirmed that she was never married to Baumgarten

in a sworn affidavit she used in responding to Baumgarten’s motion for summary

judgment on her affirmative defenses. Garcia stated under oath:

      In 1977 I decided to buy the Timber Ridge townhome. I used the
      proceeds of the sale of a rent house in Corpus Christi my father had
      given me to make the down payment. Tom dealt with the realtor and
      arranged for the townhouse to be purchased in our names as husband



                                       - 12 -
      and wife. We never married, although he purchased an engagement
      ring and I assumed we would marry, but we did not.

      In 1979 we sold the Timber Ridge townhome and used the proceeds to
      purchase the home at 1901 Exposition. Again, Tom handled the
      closing for us, and the home [1901 Exposition Blvd.] was purchased
      in both our names, this time not as husband and wife.

CR 331 (emphasis added).

      Garcia has exhaustively taken the position, literally for years, that she was

not and had never been married to Baumgarten. She should now be estopped from

claiming otherwise with her fifth lawyer in this case in what is nothing more than a

blatant and wrongful attempt to stop the sale of the Exposition Property.

5.    Garcia’s Emergency Motion to Abate is nothing more than another
      attempt to delay these proceedings without cause.
      Garcia has tried numerous times to stop the sale of the Exposition Property,

despite her agreement to vacate and sell it. Every one of Garcia’s motions has

been denied. Garcia has asked this Court twice to stop the sale and both motions

were denied. Garcia has asked the Supreme Court of Texas to stop the sale and the

Supreme Court of Texas has denied Garcia’s request. All of Garcia’s motions

have been denied because Garcia plainly has a remedy under the Texas Rules of

Appellate Procedure to stop the sale – she may post a supersedeas bond. See TEX.

R. APP. P. 24. Garcia has chosen not to do so and cannot be permitted to continue

trying to manufacture new ways to supplant the requirements of TEX. R. APP. P. 24.




                                       - 13 -
      Garcia’s exhaustive motion practice in an improper and bad faith effort to

stop the sale of the Exposition Property has caused the parties to unnecessarily

incur thousands upon thousands of dollars in attorneys’ fees. Garcia’s efforts to

make an end run around the Rules of Appellate Procedure should, again, be

squarely rejected.

                          REQUEST FOR SANCTIONS

      Counsel for Baumgarten is always loathe to request sanctions in any

proceeding, particularly in appellate proceedings, given the usual decorum

demonstrated by counsel in appellate matters. Nevertheless, Garcia’s conduct in

hiring and firing multiple lawyers to make a eleventh hour diametrically contrary

argument out of desperation and whenever convenient for her to do so

unnecessarily and unfairly drives up litigation costs. For example, Baumgarten has

responded to Garcia’s argument on the merits that is premised on her non-marriage

to Baumgarten. It is unclear, now, if Garcia continues to urge that defense because

now she has now decided to change course and take the opposite position. This

creates a moving target or shell game of sorts and unfairly prejudices Baumgarten

in that he is not given a fair opportunity to respond to a cognizable legal argument.

If Garcia is permitted to hire and fire new lawyers to take whatever position is

convenient for her at the time, it makes a mockery of our judicial system.




                                        - 14 -
      Consequently, Baumgarten requests that the Court sanction Garcia in the

amount of at least $2,500 for filing a frivolous pleading and order a show cause

hearing for her new counsel of record, Stephen Casey, to demonstrate the

reasonably diligent investigation he conducted into the allegations asserted, in light

of Garcia’s sworn testimony and pleadings to the absolute contrary throughout this

litigation up to this point. See, e.g., TEX. R. APP. P. 45.

                                    CONCLUSION

      When Garcia agreed in a written settlement agreement to vacate and sell the

Exposition Property she also waived and released all of the issues on which her

Emergency Motion to Abate is based. Garcia’s Emergency Motion to Abate can

be denied on that basis alone.

      Even if Garcia had not already waived and released all of the issues upon

which her Emergency Motion to Abate is based, she should be estopped from flip-

flopping her litigation position at the eleventh hour. Garcia has always maintained

she was never married to Baumgarten, has stated as much multiple times under

oath, and is currently representing to this Court in her brief on the merits that she

was never married to Baumgarten.          Garcia’s attempts to stop the sale of the

Exposition Property while skirting the requirements of TEX. R. APP. P. 24 should

be rejected and her Emergency Motion to Abate should be denied.




                                          - 15 -
                                     PRAYER

      Appellee respectfully prays that the Court deny Appellant’s Emergency

Motion to Abate, impose sanctions on Garcia for filing a frivolous pleading, order

a show cause hearing for Garcia’s new counsel of record, Stephen Casey, to

demonstrate the reasonably diligent investigation he conducted into the allegations

asserted, and grant all other relief to which Appellee may show himself entitled.

                                       Respectfully submitted,

                                       Nicholas P. Laurent
                                       State Bar No. 24065591
                                       Raymond E. White
                                       State Bar No. 21321950
                                       MCGINNIS, LOCHRIDGE & KILGORE, L.L.P.
                                       600 Congress Avenue, Suite 2100
                                       Austin, Texas 78701
                                       (512) 495-6000
                                       (512) 495-6093 FAX
                                       nlaurent@mcginnislaw.com
                                       rwhite@mcginnislaw.com

                                       By: /s/ Nicholas P. Laurent
                                             Nicholas P. Laurent

                                       ATTORNEYS FOR APPELLEE
                                       THOMAS LEE BAUMGARTEN




                                       - 16 -
                      CERTIFICATE OF CONFERENCE
      I certify that on April 14, 2015, I sent a detailed email to Stephen Casey and
John Foster, counsel for Garcia, with quotations and references to specific
pleadings, deposition testimony, and similar materials that directly contradict
Garcia’s new factual and legal position as stated in her Emergency Motion to
Abate. Mr. Casey was further advised that if Garcia continued to urge her
Emergency Motion to Abate that Mr. Baumgarten may be forced to request relief
from the Court in connection with her motion, including a request for sanctions.
Mr. Casey responded and refused to withdraw the Emergency Motion to Abate.

                                          /s/ Nicholas P. Laurent
                                          Nicholas P. Laurent




                      WORD COUNT CERTIFICATION
      I certify that the foregoing Appellee’s Response to Appellant’s Emergency
Motion to Abate, and Request for Sanctions was prepared with Microsoft Word
2007, and that, according to that program’s word-count function, the sections
covered by TEX. R. APP. P. 9.4(i)(1) contain 3,731 words.

                                          /s/ Nicholas P. Laurent
                                          Nicholas P. Laurent




                                       - 17 -
                         CERTIFICATE OF SERVICE
      I certify that a true and complete copy of the above and foregoing Appellee’s
Response to Appellant’s Emergency Motion to Abate, and Request for Sanctions
was sent by electronic mail and certified mail, return receipt requested on this the
23th day of April, 2015 to the following:

Mr. John L. Foster                         Mr. Stephen Casey
812 San Antonio Street, Suite 400          Casey Law Office, P.C.
Austin, Texas 78701                        595 Round Rock West Drive, Suite 102
(512) 476-4473                             Round Rock, Texas 78681
(512) 474-1606 (fax)                       (512) 257-1324
john@johnlfoster.com                       (512) 853-4098 (fax)
                                           info@caseylawoffice.us
ATTORNEYS FOR APPELLANT
DAISY WANDA GARCIA                         ATTORNEYS FOR APPELLANT
                                           DAISY WANDA GARCIA

                                          /s/ Nicholas P. Laurent
                                          Nicholas P. Laurent




                                       - 18 -
