       No. 01-15-00119-CV

                 In the                       FILED IN
                                       1st COURT OF APPEALS
          Court of Appeals                 HOUSTON, TEXAS
                for the                5/14/2015 5:16:26 PM
   First Judicial District of Texas    CHRISTOPHER A. PRINE
           Houston, Texas                      Clerk
      ___________________

    387th Judicial District Court
     Fort Bend County, Texas
    Cause No. 14-DCV-211809

      ___________________

   CHARLES MANDEVILLE, V
          Appellant

   DEBORAH MANDEVILLE
         Appellee

      ___________________


   APPELLEE’S REPLY BRIEF



                      Vicki L. Pinak
                      State Bar No. 16011357
                      12946 S. Dairy Ashford Rd. Suite 400
                      Sugar Land, TX 77478
                      Tel:281-240-2355;Fax:281- 240-2354
                      e-mail: Pinak@texadr.com
                      Attorney for Appellee


ORAL ARGUMENT NOT REQUESTED



                  1
                   IDENTITY OF INTERESTED PARTIES

            Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete
list of the names of all interested parties is provided below:


Appellee:           Deborah Crowley previously known as Deborah Mandeville

Counsel
for Appellee:       Vicki L. Pinak

Appellant:          Charles Mandeville, V Pro se

Trial Court:        Hon. Brenda Mullinix
                    387th Judicial District Court
                    Fort Bend County, Texas




                                         2
                      TABLE OF CONTENTS



Statement Regarding Oral Argument …………………………………………..1

Identification of the Parties ……………………………………………………...2

Table of Contents …………………………………………………………………3

Table of Authorities ………………………………………………………………4

Statement of the Case …………………………………………………………….5

Statement of Facts …………………………………………………………..........6

Summary of the Arguments ……………………………………………………...7

Reply to Appellant’s first point of error …………………………...….…...8 - 14

Reply to Appellant’s second point of error………………………….…….14 - 17

Prayer ……………………………………………………………………………17

Certificate of Compliance ………………………………………………………18

Certificate of Service ……………………………………………………………18




                                 3
                         TABLE OF AUTHORITIES

BNSF Railway Co. v. Phillips, No. 02-11—00250-CV, 2013 WL 3947820, *17
     (Tex. App—Ft. Worth Aug. 1, 2013, no pet.) ……………………………...9

Cornejo v. Jones,   (Tex. App.—Dallas 2014, orig. proceeding) ………..….10, 11

In re CH.E., 05-97-0005-CV, 1999 WL 498576 (Tex. App.—Dallas
       July 15, 1999, no pet.) ……………………………………………................8

In re Marriage of Jeffries, 144 S.W.3d 63, (Tex. App.—Texarkana,
       [6th Dist.] 2004) …………………………………………………………...17

In re Staff Care, Inc., 422 S.W.3d 876, 883 (Tex. App.—Dallas 2014,
       orig. proceeding) ……………………………………………..……10, 12, 13

In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013) ………. 8

Leithold v Plass, 413 S.W.2d 698 (Tex. 1967) ………………………………...…17

MacCallum v MacCallum, 8001 S.W.2d 579, 582 (Tex. App.—Corpus
    Christi [13th Dist.] 1990, writ denied) ……………………………………..17

Malone v. Foster, 956 S.W.2d 573, 578 (Tex. App.—Dallas 1997) ………………9

Messier v. Messier, 389 S.W.3d 904, (Ct. of App.—Houston [14th Dist.] 2012) ..17

Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) ……………………….15

Sw. County Enter., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493-94
     (Tex. App--Fr. Worth 1999, pet. denied) …………………………………...9

Wild Rose -4- Rescue Ranch v. City of Whitehouse, 373 S.W.3d 211, 217-18 (Tex.
      App.—Tyler 2012, no pet.) ………………………..………………………..9

Worford v Stamper, 801 S.W.2d 108, 109 (Tex. 1990) ………………………..…15

T.R.C.P Rule 90 ………………………………………………………………….15

T.R.C.P Rule 193.6 ……………………………………………………..........9 – 13
                                       4
                         STATEMENT OF THE CASE

          The affirmative pleadings at the time of trial were Appellee’s Second

Amended Petition for Divorce. (CR at 123) and Appellant’s Original Counter-

Petition for Divorce. (CR at 30) Appellant represented himself. Appellant left the

jury trial before the first witness completed her testimony refused to participate in

the trial, and did not return. (RR Excerpt of Jury Trial at 9-14) The Appellant did

not present any evidence or cross-examine any witnesses at trial. The trial court

entered a final decree of divorce on November 12, 2014. (CR at 377)




                                         5
                           STATEMENT OF FACTS

          Appellee filed for divorce in the 387th Judicial District Court of Fort

Bend County, Texas.      (CR at 9) There are five (5) children born during the

marriage. The parties live more than 100 miles from each other. The mother and

children reside in Fort Bend County, Texas and the father resides in Oklahoma.

(RR Vol. 2 at 4) The mother requested the father be supervised during his periods

of possession. (CR at 123) The father was diagnosed with Paranoid Personality

Disorder. (RR Vol. 2 at 49) After the parties separated and after the children

visited their father, the children would come home afraid to go outside when the

sun went down, out of fear of being killed or raped. (RR Vol. 2 at 40)          The

children were filled with the belief from the father that the world was going to end

and everything was doomed. (RR Excerpt of Testimony at 12)             The father’s

hatred was emotionally harming the children. (RR Excerpt of Testimony at 6) The

father’s anger over time escalated and intensified, when it should have dissipated.

(RR Excerpt of Testimony at 7)

          There trial court held a pretrial hearing and granted a motion in limine.

(CR at 337) The Appellant left the trial, did not present any evidence, and did not

return. (RR Excerpt of Jury Trial 9 - 14)




                                            6
                      SUMMARY OF THE ARGUMENTS

           Appellant is not entitled to the requested relief because the granting of

the motion in limine is not a ruling on the evidence and Appellant did not preserve

any right to complain. Appellant left the trial and did not present any evidence.

           The trial court has very broad discretion in determining the best interest

of the children in family law matters. The best interest of the children is the

primary consideration of the court in determining issues relating to possession of

and access to the children. The pleadings and evidence support the ruling by the

trial court.




                                          7
             REPLY TO APPELLANT’S FIRST POINT OF ERROR

      1. The Trial Court did not abuse its discretion by granting the motion
         in limine.

      In Appellant’s first point he complains the trial court abused its discretion by

granting a motion in limine and ruling that appellant “shall not mention or refer to

a specific item, bank account as being his separate property as Charles Mandeville,

V, failed to respond to the interrogatory request requiring him to identify and state

the value of each item he claims is his separate property.” (RR pretrial at 98 - 103)

          Appellant admitted he did not answer the interrogatory request sent to

him. (RR pretrial at 101) This interrogatory request required Appellant to identify

and state the value of each item he claimed to be his separate property. (RR pretrial

pet. Ex. 1) Appellant was provided additional notice of the requirement to respond

to the interrogatory request. (RR Pretrial at 98-99 and 105 pet. Ex. 2) After

Appellant admitted he did not answer the interrogatory request, he claimed the

reason was because he did not want to put the cart before the horse. (RR pretrial at

101 – 103)

        A trial court’s granting, or denial, of a motion in limine does not preserve

error. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013); In

re CH.E., 05-97-00055-CV, 1999 WL 498576 (Tex. App.—Dallas July 15, 1999,

no pet.) To complain on appeal that the trial court erroneously excluded evidence,

the appellant must have offered the evidence during trial and obtained an adverse
                                          8
ruling from the trial court. Malone v. Foster, 956 S.W.2d 573, 578 (Tex. App.—

Dallas 1997), aff’d, 977 S.W.2d 562 (Tex. 1998). To preserve error during trial the

party must comply with the following: (1) approach the bench and ask for a ruling;

(2) formally offer the evidence; and (3) obtain a ruling on the offer. BNSF Railway

Co. v. Phillips, No. 02-11--00250-CV, 2013 WL 3947820, *17 (Tex. App—Ft.

Worth Aug. 1, 2013, no pet.); Wild Rose –4– Rescue Ranch v. City of Whitehouse,

373 S.W.3d 211, 217-18 (Tex. App.—Tyler 2012, no pet.) If at that time, the court

rules the evidence inadmissible after it is offered, the party must further preserve

the evidence through an offer of proof. See Sw. County Enter., Inc. v. Lucky Lady

Oil Co., 991 S.W.2d 490, 493–94 (Tex. App—Ft. Worth 1999, pet. denied). An

offer of proof requires a party, subsequent to a ruling excluding evidence, to show

the substance of the evidence excluded. Id. at 494.

          Appellant did not offer any evidence. In fact, the Appellant became so

angry during day two of the trial that he left the courtroom and never returned.

(RR Excerpt of Jury Trial at 9-14) Appellant did not preserve error and has no

right to complain now when he did not even attempt to enter evidence.

      Appellant further complains of the trial court’s ruling on the motion in

limine for failure to respond to an interrogatory as being an abusive sanction when

there was no prior motion to compel a discovery response. Rule 193.6 of the Texas




                                         9
Rules of Civil Procedure requires automatic exclusion of evidence for failure to

respond to discovery unless an exception applies. The Rule states, in part:

      193.6 Failing to Timely Respond - Effect on Trial

      (a) Exclusion of evidence and exceptions. A party who fails to make,
      amend, or supplement a discovery response in a timely manner may
      not introduce in evidence the material or information that was not
      timely disclosed, or offer the testimony of a witness (other than a
      named party) who was not timely identified, unless the court finds
      that:

      (1) there was good cause for the failure to timely make, amend, or
      supplement the discovery response; or

      (2) the failure to timely make, amend, or supplement the discovery
      response will not unfairly surprise or unfairly prejudice the other
      parties.

      (b) Burden of establishing exception. The burden of establishing good
      cause or the lack of unfair surprise or unfair prejudice is on the party
      seeking to introduce the evidence or call the witness. A finding of
      good cause or of the lack of unfair surprise or unfair prejudice must
      be supported by the record.
      T.R.C.P. Rule 193.6

      The rule requires the evidence to be “automatically inadmissible” at trial,

unless that party (i) establishes good cause for failing or waiting to respond or (ii)

proves lack of unfair surprise or unfair prejudice. If neither exception is

established, the trial court has “no discretion”; it must exclude the undisclosed

evidence. Cornejo v. Jones, No. 05-12-01256-CV, 2014 WL 316607, at *2 (Tex.

App.-Dallas Jan. 29, 2014, orig. proceeding); In re Staff Care, Inc., 422 S.W.3d

876, 883 (Tex. App.--Dallas 2014, orig. proceeding).
                                         10
      In Cornejo, the Court reversed a judgment for defendant that was entered on

a jury verdict because the trial court had allowed that defendant to testify even

though he had not answered contention interrogatories. In Cornejo, an automobile

collision case, Cornejo sued Jones. Shortly after Jones answered, Cornejo served

him with contention interrogatories asking, among other things, for Jones’s version

of what caused the collision. Just before trial began, Cornejo objected to Jones’s

testifying because Jones had never answered the contention interrogatories. When

Cornejo conceded he had never sought to compel answers, the trial court overruled

the objection and allowed Jones to testify. Ultimately, the jury returned a verdict

for Jones. The Court of Appeals reversed, finding that the trial court should have

excluded Jones’s testimony under TEX. R. CIV. P. 193.6(a) because Jones had

ignored the contention interrogatories.

      The Court explained that although “[r]ulings on the admissibility of

evidence generally are reviewed on appeal for abuse of discretion,” under Rule

193.6 “the trial court possesses no discretion.” The evidence must be excluded

unless the delinquent party carries its burden under Rule 193.6(b) to establish good

cause for nondisclosure or lack of unfair surprise or prejudice if the evidence is

admitted. Jones did not argue or present evidence that any of the Rule 193.6(b)

exceptions applied. The Court rejected Jones’s various arguments that Cornejo had




                                          11
not preserved error. A party is not required to file a motion to compel discovery in

order to secure the automatic sanctions of Rule 193.6(a).

      In re Staff Care was a mandamus proceeding involving a number of

discovery and evidentiary rulings. One issue dealt with the decision striking all of

Staff Care’s evidence of economic damages as well as the testimony of individuals

it had identified as having knowledge of relevant facts. Staff Care had served

amended disclosures providing its damages analysis and then identifying more

than 200 persons with knowledge one and three days before the close of discovery,

just over thirty days before trial. The requests for such disclosures, however, had

been pending for about two years, and Staff care had delayed responding, provided

no information at all until it served these disclosures shortly before the close of

discovery.

      The Court of Appeals denied Staff Care’s application for mandamus relief

from the order striking its evidence. It rejected Staff Care’s arguments that its

responses were timely, simply because they were made before the close of

discovery and more than thirty days before trial. The Court said, “[T]here is no

presumption that an amended disclosure made more than thirty days prior to trial is

timely.” It also declined to adopt Staff Care’s contention that exclusion of its

evidence amounted to a “death penalty” discovery sanction, requiring the

consideration of less severe alternatives. The Court explained, “The rule [193.6(a)]


                                        12
is mandatory, and the penalty—exclusion of evidence—is automatic, absent a

showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice.”

Staff Care’s arguments did not satisfy any exception that would excuse its

deliberate delay in disclosing information about its claimed damages. The Court

did find that excluding about 170 of the potential witnesses was improper because

they had previously been disclosed in other aspects of the discovery process, and

therefore there was no “unfair surprise” as to those witnesses, see TEX. R. CIV. P.

193.6(a)(2) & (b); but otherwise it left intact the orders excluding Staff Care’s

evidence.

            The rule requires the evidence to be “automatically inadmissible” at trial,

unless that party (i) establishes good cause for failing or waiting to respond or (ii)

proves lack of unfair surprise or unfair prejudice. Appellant’s only excuse for not

answering the interrogatory requiring him to specifically identify each item he

claims to be his separate property was because it was “putting the cart before the

horse,” thus good cause could not be established. Further, Appellant admitted he

did not file or provide a divorce inventory (RR pretrial at 169). Appellee did file a

divorce inventory and it was entered into evidence. (CR 132 and RR Vol. 3 at 29

exhibit 2) Therefore, lack of unfair surprise could not be established. If neither

exception is established, the trial court has no discretion and it must exclude the




                                           13
undisclosed evidence. For the reasons stated above, the Court should affirm the

ruling by the trial court and overrule Appellant’s point of error.

          REPLY TO APPELLANT’S SECOND POINT OF ERROR

II.       The trial court did not abuse its authority by ordering supervised
          possession of the children and by not specifying grounds for deviating
          from a standard possession.

          Appellant’s second point claims the trial court abused its authority on

          two grounds:

          1. Imposing supervised visitation for seeing any of the children
          when no request was made in any pleading; and

          2. imposing supervised visitation where there were no grounds
          stated for seeking any deviation from a Standard Possession
          Order.

          Appellant’s first point fails as Appellee specifically requested supervised

possession in her live pleading the Second Amended Petition for Divorce (CR

at 123). Appellant’s cited case authority of Smith v. Aramark Corporation is

misplaced. Smith v. Aramark Corporation is a case involving summary judgments,

a homeowner association, and the lack of third party beneficiary notice on non-

contracting parties. In the case before this court, Appellee’s Second Amended

Petition for Divorce clearly provides notice of the requested supervised possession.

(CR 123 page 3). There was no objection at trial to the introduction of evidence

relating to supervised possession. There was no objection at the entry of the

decree. Appellant waived any right to complain.
                                          14
           Appellant’s second complaint is there were no grounds stated in the

pleadings for seeking any deviation from a Standard Possession Order. Appellant

is confused with the burden of proof at trial with the use of evidence and notice

pleadings. Only notice pleadings are required, not specific reasons for each claim.

If a party wishes to require more specific pleading of the other party, every defect

in a pleading which is not specifically pointed out by exception in writing and

brought to the attention of the judge shall be deemed to have been waived.

T.R.C.P. Rule 90. Appellant never filed a special exception nor made such a

request.

           If the complaint by Appellant is about the trial court not specifying the

underlying facts as to why the trial court deviated from a Standard Possession

Order and ordered supervised visits, the burden is on the Movant to timely

request findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).

Without a timely request for findings of fact, there is an inference that the trial

court made all the necessary findings to support its judgment. Id. The record is

then reviewed to determine whether some evidence supports the judgment.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The court then may

consider only the evidence “most favorable” to the trial court’s judgment and

uphold that judgment on any legal theory that finds support in the evidence. Id. In

this case there was never a timely, or any, request for findings of fact. There was


                                         15
ample evidence to show a deviation from a Standard Possession Order and the

requirement of supervised possession was and is warranted.

            After the children visited with their father, they became apathetic,

nervous and exhibited paranoia about dangers, and fear of being killed or raped.

(RR Vol. 2 at 37- 40) Appellee testified that Appellant felt that something was

wrong with his mind and that is why they went to a counselor. (RR Vol 2 at 14-

19) Later Appellant was diagnosed with Paranoid Personality Disorder. (RR Vol 2

at 49)

            After the parties separated and after the children visited their father, the

children would come home afraid to go outside when the sun went down. (RR

Vol. 2 at 40)     The children were filled with the belief from the father that the

world was going to end and everything was doomed. (RR Excerpt of Testimony at

12)      There was testimony that their father was so full of hatred that he was

emotionally harming the children. (RR Excerpt of Testimony at 6) The father’s

anger over time escalated and intensified when it should have dissipated. (RR

Excerpt of Testimony at 7) The only way to prevent such unrealistic paranoia

being instilled upon these children is for close supervision of the children during

visits with their father. A proposed parenting plan was introduced into evidence.

(RR Vol. 3 at 46, exhibit 30) The Court considered all the evidence.




                                           16
          The trial court has very broad discretion in determining the best interest

of a child in family law matters. Leithold v. Plass, 413 S.W.2d 698 (Tex.1967).

The best interest of the child is the primary consideration of the court in

determining the issues of conservatorship and possession of and access to the child.

Messier v. Messier 389 S.W.3d 904, (Ct. of App. – Houston [14th Dist.] 2012).

The judgment of the trial court will be reversed only when it appears from the

record as a whole that the court has abused its discretion. MacCallum v.

MacCallum, 801 S.W.2d 579, 582 (Tex. App. - Corpus Christi [13th Dist.] 1990,

writ denied). When there is some evidence of substantive and probative character

to support the trial court's decision on issues of conservatorship and possession of

child, no abuse of discretion occurs. In re Marriage of Jeffries, 144 S.W.3d 63,

(Tex. App. - Texarkana, [6th Dist.] 2004). For the reasons stated above, the Court

should affirm the ruling by the trial court and overrule Appellant’s point of error.

                                      PRAYER

          For the foregoing reasons, Appellee respectfully prays that the court

confirm the judgment of the trial court, grant all relief in which Appellee is

entitled, and overrule all relief requested by Appellant.




                                          17
                                        Respectfully submitted,


                                        By:    /s/ Vicki L. Pinak
                                               Vicki L. Pinak
                                                State Bar No. 16011357
                                               12946 S. Dairy Ashford Rd. Suite 400
                                               Sugar Land, TX 77478
                                               Tel:281-240-2355;Fax: 281-240-2354
                                               e-mail: Pinak@texadr.com
                                               Attorney for Appellee


                          Certification of Compliance

      The undersigned attorney certifies that this document has a word count of

3,388 words based upon the representation provided by the word processing

program that was used to create the document. TEX. R. APP.P. 9.4 (i).

                                        /s/ Vicki L. Pinak
                                        Vicki L. Pinak, Attorney for Appellee


                              Certificate of Service

      I certify that on the 14th day of May 2015, I served by certified mail return

receipt requested 7014-3490-0001-6416-7825 a copy of this document to Charles

Mandeville, V, pro se at 1323 Sunset Land, Guymon, OK 73942 and by e-mail,

a   copy   of   this   document    to    Charles    Mandeville,   V,   pro      se   at

southwest_biodiesel@hushmail.com.

                                        /S/ Vicki L. Pinak
                                        Vicki L. Pinak


                                          18
