                                                                               ACCEPTED
                                                                          06-15-00014-CV
                                                                SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                      4/6/2015 4:47:26 PM
                                                                          DEBBIE AUTREY
                                                                                   CLERK

                   CAUSE NO. 06-15-00014-CV
__________________________________________________________________
                                                         FILED IN
                                                  6th COURT OF APPEALS
                  IN THE COURT OF APPEALS           TEXARKANA, TEXAS
FOR THE SIXTH DISTRICT OF TEXAS, TEXARKANA        4/6/2015DIVISION
                                                           4:47:26 PM
__________________________________________________________________
                                                      DEBBIE  AUTREY
                                                          Clerk

     WILLIAM H. SCURLOCK            §
                                    §
     v.                             §
                                    §
     JOHN M. HUBBARD                §
__________________________________________________________________

                 APPELLANT’S RESPONSE TO
              APPELLEE’S MOTION TO DISMISS
__________________________________________________________________

  ON APPEAL FROM THE 102nd JUDICIAL DISTRICT COURT
                     CAUSE NO. 14C1653-102
__________________________________________________________________

                               Cory J. Floyd
                               Texas Bar No. 24049365

                               Cammy R. Kennedy
                               Texas Bar No. 24079245

                               NORTON & WOOD, L.L.P.
                               315 Main Street
                               Texarkana, Texas 75501
                               Phone: (903) 823-1321
                               FAX: (903) 823-1325

                               ATTORNEYS FOR APPELLANT,
                               WILLIAM H. SCURLOCK
             APPELLANT’S RESPONSE TO APPELLEE’S MOTION TO DISMISS

             Appellant asks the Court to deny appellee’s motion to dismiss the

appeal, and to take and consider this motion with the case because the

motion to dismiss requires an inquiry into, and involves the merits of

the appeal. 1

                                                           I. INTRODUCTION

1.           Appellant is William H. Scurlock; Appellee is John Hubbard.

2.           On February 20, 2015 Appellant brought this appeal of the trial

court's Order For Issuance of Temporary Injunction and Appointment of

Receiver which was signed on February 3, 2015 taking effect

immediately. See generally [CR 67-73].

3.           Appellee is unable to obtain the bonds required by the trial court

as a term of the temporary injunction, and Appellee now asserts that

his inability to obtain these bonds shelters the trial court's order from

review.

4.           Since February 3, 2015, receiver Randy Moore has managed Pecan

Point Brewing Company, to the exclusion of Appellant, William H.

Scurlock. See Affidavit of William H. Scurlock (attached hereto as


																																																								
1	Appellee's         Motion to Dismiss Fails to Comply with Texas Rule of Appellate Procedure 10.1(a)(5).	


                                                                  1
Exhibit “A”); and Email Dated Tuesday, February 3, 2015 from receiver

Randy Moore to Counsel for Appellant (attached hereto as Exhibit

“B”)(Exhibits “A” and “B” are hereby incorporated by reference as if set

out in its entirety).

                II.     ARGUMENT AND AUTHORITIES

5.    Although the Court has the authority under Texas Rule of

Appellate Procedure 42.3(a) to dismiss an appeal for lack of jurisdiction,

this is not a case in which the Court should do so.

The    Order     For     Issuance    of       Temporary       Injunction    and

Appointment of Receiver is Appealable.

6.    Section 51.014 of the Civil Practice and Remedies Code expressly

authorizes an appeal from certain interlocutory orders of the trial court,

including orders appointing a receiver and orders granting or refusing a

temporary injunction. Tex. Civ. Prac. & Rem. Code §51.014(a)(1) (West

2011); Tex. Civ. Prac. & Rem. Code §51.014(a)(4) (West 2011).

7.    The    Order      For   Issuance       of   Temporary    Injunction   and

Appointment of Receiver clearly appointed a receiver and granted a

temporary injunction. See generally [CR 67-73].




                                         2
	
The Appeal was Timely Perfected.

8.    The Court should deny appellee’s motion to dismiss this appeal for

lack of jurisdiction because appellant timely perfected his appeal. Tex.

R. App. P. 28.1 (stating appeals from interlocutory orders, when allowed

by statute, are accelerated and are perfected by filing a notice of appeal

“within the time allowed by Rule 26.1(b).” The time allowed by Rule

26.1(b) is twenty days after the order is signed. Tex. R. App. P. 26.1(b).

9.    On February 3, 2015, the trial court signed its Order For Issuance

of Temporary Injunction and Appointment of Receiver. [CR 67-73].

10.   On February 20, 2015, seventeen days later and clearly within the

twenty day time period prescribed by Texas Rule of Appellate Procedure

26.1, Scurlock filed his Notice of Appeal, therefore perfecting an appeal

to this Court of the Order For Issuance of Temporary Injunction and

Appointment of Receiver. [CR 80].

11.   On March 4, 2015, the Court of Appeals issued a letter notifying

Scurlock that his appellate brief was due on or before March 24, 2015.

On March 19, 2015 Scurlock filed his Appellants Brief, clearly prior to

the Court's deadline. Brief of Appellant, William H. Scurlock v. John

M. Hubbard, No. 14C-1653-102, appeal docketed, 06-15-00014-CV


                                     3
	
(March 19, 2015). Because Appellant timely perfected his appeal, and

timely filed his brief, the Court should deny the motion to dismiss.

Appellant's Right to Appeal the Temporary Injunction Arises on

the Date the Order is Signed.

12.   In re Robinson Family Entities explicitly provides that when the

trial court’s order restrains motion and enforces action, similar to the

order in this case, the order functions as a temporary injunction, which

grants the appeals court jurisdiction over the appeal. In re Robinson

Family Entities, 11-12-00258-CV, 2014 WL 4347838, at *1 (Tex. App.—

Eastland Aug. 29, 2014, no pet.)(not designated for publication).

13.   It is well established that a party loses its right to complain about

the validity of an injunction if appeal is not perfected within the proper

time limits after the grant of the injunction. Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(4) (Vernon Supp.1990); Bayoud v. Bayoud, 797

S.W.2d 304, 312 (Tex. App.—Dallas 1990), writ denied (Jan. 30, 1991).

14.   The proper time to perfect an appeal for the grant of a temporary

injunction is twenty days from the date the order is signed. Tex. R.

App. P. 26.1(b) (emphasis added).

15.   Appellee argues, in his motion to dismiss:


                                     4
	
           "Because the required bonds have not been paid, the

           temporary injunction that is the subject of Scurlock's

           interlocutory appeal has not been issued and is not

           effective." Appellee’s Motion to Dismiss, at 4, William

           H. Scurlock v. John M. Hubbard, No. 14C-1653-102,

           appeal docketed, 06-15-00014-CV (March 19, 2015).

He continues:

           "Because the temporary injunction that is the subject

           of Scurlock's interlocutory appeal is not in effect,

           Scurlock's    interlocutory    appeal     regarding      the

           temporary injunction is premature and must be

           dismissed for lack of jurisdiction of this Court." Id.

16.   Appellee cites no authority, statutory or common law, in support

of the proposition that Appellant's timeline for appeal of the grant of a

temporary injunction, runs from the date of the clerk's issuance of the

writ of injunction.

17.   Appellant brought this appeal timely from the date of the signing

of the order, in compliance with the Civil Practice and Remedies Code

and the Texas Rules of Appellate Procedure, calculating all deadlines in


                                     5
	
accordance with those rules, clearly vesting this Court with jurisdiction

over this matter.    For this reason, the motion to dismiss should be

denied.

Denying Review of the Temporary Injunction Would Deprive

Appellant of any Procedural Mechanism to Appeal.

18.   Appellee argues that review of the temporary injunction is

premature, until such time as he elects to, or is able to post the

requisite bonds. Id. Appellee's argument, if it succeeds, allows him to

shelve the order granting temporary injunction, and shield it from

review until he elects to enforce it, all the while receiving the benefit of

the same through the receivership which is in place and effectuating the

purpose of the injunction.

19.   If Appellant's deadline runs twenty days from the date the order is

signed (Texas Rule of Appellate Procedure 26.1), but Appellant is not

allowed to appeal the order, until such time as the Appellee attempts to

enforce the order (Appellee's unsupported theory), Appellant is deprived

of a procedural mechanism for review.          Again, this proposition is

unsupported by statute, rule or case law, and is contrary to Texas Rule

of Appellate Procedure 26.1.


                                     6
	
20.   If there is no procedural mechanism for a party to be exonerated

on appeal, and the collateral consequences of the lack of review are

harsh, the court may decide an issue. See Gen. Land Office of State of

Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990); State v.

Lodge, 608 S.W.2d 910, 911 (Tex. 1980).

Even Assuming the Appeal of the Temporary Injunction is

Premature, the Receivership is Appealable.

21.   Hubbard’s motion entirely avoids Scurlock’s appeal of the

receivership. Accordingly, his Motion to Dismiss must be interpreted to

seek only the partial dismissal of portions of the order establishing the

temporary injunction.

22.   The trial court's order dated February 3, 2015, ordered Scurlock to

"turn over management of Pecan Point Brewing Company to the

Receiver as of February 3, 2015 at 3:00 p.m."        [CR 69].    This is

immediate and appealable error because, instead of conditioning this

improper jaunt into receivership on the posting of the Applicant’s bond,

as required by Texas Rule of Civil Procedure 695a, the receivership was

set to take effect at a certain time and place, specifically, February 3,

2015, at 3:00 p.m., regardless of whether any of the required bonds were


                                    7
	
in place. Tex. R. Civ. P. 695a. This issue is explained in detail in

Appellant's brief which is incorporated herein by reference, as if set out

in its entirety.

23.   Because the grant of the receivership was timely appealed, the

Court should deny appellee’s motion to dismiss this appeal for lack of

jurisdiction.

Appellee's Motion to Dismiss Concedes Issue Two of Appellant's

Brief

24.   The trial court failed to require the necessary bonds for a

receivership prior to entering its order establishing a receivership, and

accordingly the Court should grant Appellant the relief sought under

issue two of Appellant’s appeal brief.

25.   Appellee's motion to dismiss states that one bond was ordered for

the receiver, and two were ordered pursuant to Texas Rule of Civil

Procedure 684 (injunction bonds). Tex. R. Civ. P. 684.

26.   In order for a receivership to be effective, there must be two bonds

posted. First, the applicant must post a bond payable to the defendant,

in an amount fixed by the court sufficient to cover all probable damages

and costs, “conditioned for the payment of all damages and costs in such


                                    8
	
suit, in case it should be decided that such receiver was wrongfully

appointed to take charge of such property.” Tex. R. Civ. P. 695a.

Second, the receiver must post a bond approved by the appointing court,

in an amount fixed by the court and conditioned on the faithful

discharge of his duties as receiver. Tex. Civ. Prac. & Rem. Code Ann.

§64.023 (Vernon 1985).

27.   Because appellee concedes issue two of Appellant's Brief, the

motion to dismiss should be denied, and the Court should contemplate

Appellee's concessions in the motion to dismiss, as argument, authority

and evidence in support of Appellant's appeal of the Order For Issuance

of Temporary Injunction and Appointment of Receiver.

                            III. PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant asks this

honorable Court to take this motion with the case because the motion to

dismiss requires an inquiry into, and involves the merits of the appeal.

Appellant further asks the Court to deny appellee's motion and

continue with this appeal. Appellant asks this Court to vacate the trial

court's Order for Issuance of Temporary Injunction and Appointment of

Receiver, reverse the trial court's judgment, render judgment denying


                                   9
	
the application for receivership and the application for injunction, and

award to Appellant, William Scurlock, all costs incurred with the filing

of this appeal and Response to Appellee’s Motion to Dismiss.

                                 Respectfully submitted:


                                 /s/ Cory J. Floyd
                                 Cory J. Floyd
                                 Texas Bar No. 24072348

                                 Cammy R. Kennedy
                                 Texas Bar No. 24079245

                                 NORTON & WOOD, L.L.P.
                                 315 Main Street
                                 Texarkana, Texas 75501
                                 Phone: (903) 823-1321
                                 FAX: (903) 823-1325
                                 Email: cory@nortonandwood.com	
     	     	    	     	    	     Email: cammy@nortonandwood.com

                                 ATTORNEYS FOR APPELLANT,
                                 WILLIAM H. SCURLOCK




                                  10
	
                  CERTIFICATE OF SERVICE

     I HEREBY CERTIFY that on April 6, 2015, a true and correct
copy of the Appellant’s Brief was forwarded to the counsel below:

     Brent M. Langdon
     Kyle B. Davis
     Langdon & Davis
     625 Sam Houston Drive, Suite A
     New Boston, Texas 75570
     Phone: (903) 628-5571
     Fax: (903) 628-5868
     Email: blangdon@ldatty.com
     Email: kdavis@ldatty.com




                                11
	
              AFFIDAVIT OF WILLIAM H. SCURLOCK


STATE OF TEXAS                §
                              §
COUNTY OF BOWIE               §


      BEFORE ME, the undersigned authority, on this day personally

appeared vVilliam H. Scurlock, who under oath stated as follows:

      1.    l\1y name is William H. Scurlock. I am over eighteen (18)

years of age and am legally competent to make this Affidavit, which is

true and correct, is based on my personal knowledge, and is made

voluntarily and not under duress. The information contained herein is

true and correct.

      2.    On Tuesday, February 3, 2015 Randy Moore, acting as a

court appointed receiver, assumed control of Pecan Point Brewing

Company, Inc.

      3.    l\1y only access to, and rights in, Pecan Point Brewing

Company, Inc. are based on his consent.


                                    ~$;~
                                    WILLIAM H. SCURLOCK
                                                                     EXHIBIT

~~~~~~~~-'
Affidavit ofW"illiam H. Scurlock
                                                                       A
William H. Scurlock v. John M. Hubbard, No. 14C-1653-102,
appeal docketed, 06-15-00014-CV (March 19, 2015).                  Page 1
      SWORN TO AND SUBSCRIBED BEFORE ME on this                Ji!!!   day

of April, 2015, to certify which witness my hand and official seal.




Affidavit of~Tilliam H. Scurlock
William H. Scurlock v. John M. Hubbard, No. 14C-1653-102,
appeal docketed, 06-15-00014-CV (March 19, 2015).                     Page2
Cory Floyd

From:                                      rmtexarkana@aol.com
Sent:                                      Tuesday, February 03, 2015 7:42 PM
To:                                        Cory Floyd
Subject:                                   Re:


Mr. Floyd, Thanks for sending the signed order. On Monday, Feb 2, 2105, I met with Bill and Linda at PPB. I did a
general walk thru. Today Tuesday Feb 3rd, I met with the Scurlock's, GM Jason Williams and Becky Williams during their
"staff management meeting". I briefly met the exec chef Justin. I now have a better understanding of the operations at
PPB.

I have completed my initial assessment of PPB. I have no immediate concerns. I will review the accounts payable and
payroll process. I'm considering changes in the accounts payable and payroll process.

Linda Scurlock was very helpful. I will continue working with her. I've asked her to work Monday thru Friday 1 PM until 7
PM. She will perform the same general duties with my over site.

William Scurlock,( per the order) is restrained from PPB, without my consent or request for help.

 Mr. Scurlock has good knowledge of the PPB physical plant. As repairs, modifications and improvements are needed,
I've instructed Mr. Scurlock to notify me via text or telephone before completing these jobs. I will allow Mr. Scurlock to
continue working with Jan Orr in brewing operations. This includes revisions currently in process and restarting the
brewing process. I must be present during the time Mrs. Orr is doing her work.

I understand our need to notify TACB and the insurer of my appointment as receiver. I will prepare documents to be
presented to Judge Carlow for his approval. I request we send the order signed by Judge Lockhart along with the
approval from Judge Carlow in the same correspondence to TACB and the insurer. I hope you are agreeable.

I have applied for the $10K bond. Should have approval shortly.

Thanks again, Randy Moore


---Original Message--
From: Cory Floyd <cory@nortonandwood.com>
To: rmtexarkana <rmtexarkana@aol.com>
Cc: Candace Carathers <candace@nortonandwood.com>
Sent: Tue, Feb 3, 2015 5:11 pm

Mr. Moore,

The attached order was signed today.

Please confirm in writing, again, that you wish for Mr. Scurlock to continue as stated in your email dated Monday,
February 2, 2015.

I'm forwarding the order to the insurer, as well as the TABC. I'll copy you on my correspondence, for your file, when I
send it. If you wish to discuss my actions before I send these, please let me know.




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                                                Cory J. Floyd
                                                315 Main Street• Texarkana, Texas 75501-5604
                                                Telephone: 903.823.1321 •Facsimile: 903.823.1325
                                                Web: www.nortonandwood.com                                      EXHIBIT

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