                                                                                                 ACCEPTED
                                                                                            01-14-01030-CV
                                                                                  FIRST COURT OF APPEALS
                                                                                          HOUSTON, TEXAS
                                                                                      3/31/2015 10:47:02 AM
                                                                                        CHRISTOPHER PRINE
                                                                                                     CLERK

                             NO. 01-14-01030-CV


                                TARRIS WOODS                            FILED IN
                                                                 1st COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                 APPELLANT
                                                                 3/31/2015 10:47:02 AM
                                       V.                        CHRISTOPHER A. PRINE
                                                                          Clerk
               SANDRA T. KENNER AND CHARLES         E. TWYMON,    JR.

                                    APPELLEE



                 Response to Appellee's on Appellant's
                       Motion to Abate and Remand


TO THE HONORABLE     JUSTICES   OF SAID COURT:

     NOW COMES Appellant,       Tarris Woods, makes this response                to

Appellee's    on Appellant's    Motion      to Abate and Remand and asks the

Court to Abate and Remand this case for the Execution                   of Findings

of Fact and Conclusion       of law.

                                         1.

     1.      Appellees    cite this court to the Tex.R.Civ.P.             298 as

Authority    for the denial of Appellant's         motion   to abate and that

Appellant    should have made a request         for additional     findings       and

conclusions.

     2.      Appellee's   counsel    submitted     the Findings    of Facts and

Conclusion    of Law on December       18, 2014.    (Attached hereto       and

incorporated    herein as Exhibit       "A")

     3.      In Tex.R.Civ.P.    298 the first line clearly          states the

following:    "After the court files original          findings    and fact and

conclusions    of law ...
                       " The rule did not make any provisions               for the
opposing     counsel    to prepare    the findings     of fact and conclusions

of law, therefore        rule 298 is not relevant        in this matter       based

on the evidence        that the trial court did not prepare           the finding

of facts and conclusion         of law.

      4.      In the case of Heard v. City of Dallas,            456 S.W.2d      440,

445   (Tex.Civ.App.-Dallas       1970, writ ref'd n.r.e.)        the court makes

the clear statement        that "After the judge so files original

findings     of fact and conclusions        of law, either party may, within

five days, request        of him Specified       further,   additional,    or

amended     findings"    in the case at bar the trial court failed to

file the original        findings    of fact and conclusions        of law.

                                          II.

      5.     Appellees     makes the statement        that "The trial court's

findings    of fact recite the Decedent's           death, the execution        of a

Will "with the formalities           and solemnities     required,"

      The trial court did not make any such findings,                 the above

statement     is misleading     and appellee's      counsel   is not making      the

above argument        in good faith.

      Appellees       go on to say that "[t]he trial court concluded

that the Appellees        had shown error its Judgment         Declaring

Heirship,     previously     entered,   and that the copy of the Decedent's

Will was entitled        to probate."     Again,    the trial court made no

such findings.

      6.      In the case of In the Interest           of R.D.Y.,    a child, 51

S.W.3d     314, 322     (Tex.App.-Houston       [1st Dist.] 2001, pet denied)
the court stated that "A trial court is required              to file findings

of fact and conclusions       of law within     20 days after a timely

request    is made."

                                      III.

     7.      In the case of Nadolney      v. Taub, 116 S.W.3d 273, 279

(Tex.App.-Houston       [14th Dist.] 2003, pet. denied)        the court set

out the Standard       of Appellate   Review when the trial court files

its findings    of fact and conclusions        of law.

     8.      "In support of his order granting           Taub's petition       for a

bill of review. A trial judge's         findings   of fact following       a

hearing    on a bill of review have the same force and effect as

jury findings.    See: Hoover      v. Sims, 792 S.W.2d      171,173   (Tex.App.-

Houston    [1st Dist.] 1980, no writ).        In the case at bar the

findings    of fact was submitted      by appellee's      counsel.

     9.      Generally,    a court will review a trial judge's         findings

of fact in a bill of review proceeding           using the same standards

we use in reviewing       the sufficiency     of the evidence    to support a

jury's answer.    See. id.

     10.     Since, appellee's      counsel   submitted    the findings    of

facts and conclusion       of law then the sufficiency        of the evidence

is only one sided from the appellee's           stand point.

     11.     "These    standards   are well-established.      When a party

challenges    the legal sufficiency      of the evidence      supporting       an

adverse    findings    on an issue on which it does not have the burden

of proof,    that party must demonstrate        on appeal that there is no
evidence      to support the adverse      finding ...
                                                   " "[W] e consider   all the

evidence      in the light most favorable       to the findings,    indulging

every reasonable         inference   in favor of the prevailing     party."

        12.    If the issues requires      some consideration   of the merits

of the appeal,      then this court would be considering        the evidence

in light most favorable         to the findings    that was submitted    by

appellee's      counsel.

        13.   Appellant     request that this appeal be abated and this

court direct      the trial court to correct       its error pursuant    to

appellate      rule 44.4 TEX.R.APP.      P. 44.4 Acad Corp. v. Interior

Buildout      & Turnkey Constr.,      Inc., 21 S.W.3d 732, 739 n. 1

(Tex.App-Houston         [14th] 2000, no. pet.)

                                         IV.

        14.   Appellant's request      that this appeal be abated and this

Court direct the trial court to correct            its error pursuant    to

TEX.R.APP.P.      44.4

                                       Prayer

        15.    For these reasons, Appellant's asks the Court to direct

the trial court to correct           its error pursuant   to TEX.R.APP.P.

44.4.

                                        Respectfully   submitted,


                                          /S/ Douglas T. Godinich
                                        Douglas T. Godinich
                                        Texas Bar No 24007244
                                        2727 Broadway
                                        Galveston, Texas 77550
                                        Tel: (409) 763-2454
                                        Fax: (409) 763-4309
                                   Attorney    for Appellant   Tarris Woods




                          Certificate     of Service

     A copy of this notice      is being filed with the appellate

clerk in accordance      with rule 25.1(e)    of the Texas Rules of Civil

Procedure.   I certify    that a true copy of this Appellant's Motion

to Abate and Remand      for the Execution    of Findings   of Fact and

Conclusion   of law was served in accordance        with rule 9.5 of the

Texas Rules of Appellate      Procedure    on each party or the attorney

for such party indicated      below by method     indicated.


                                    /s/ Douglas T. Godinich
                                   Douglas T. Godinich

By FAX TRANSMITTAL
Thomas W. McQuage
P.O. Box 16894
Galveston, Texas 77552
TEL: 409-762-1104
mcquage@swbell.net
EXHIBIT "A"
douglas godinich

From:                                                                                                    No-Reply@eFileTexas.gov
Sent:                                                                                                    Thursday, December 18, 2014 10:21 AM
To:                                                                                                      dtglaw1@aol.com
Subject:                                                                                                 eFileTexas.gov A- Notification of Service - 3529781




                                                                                                                                                                                                                                       Notification of Service
                                                                                                                                                                                                                                                                  Envelope Number: 3529781

This is a notification of service for the filing listed. Please click the link below to retrieve the submitted
document.




    Case Style                                                                                                     .Estate of Charles Edward Twymon, Sr., Deceased
    D~t;IT'i~~
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    Filing Type                                                                                                    Proposed Order
                           _--_
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    Filed By                                                                                                       :Thomas McQuage
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                                                                                                                   .Other Service Contacts not associated with a party on the case:
    Service Contacts
                                                                                                                   Douglas Godinich (dtglaw1@aol.com)
                                                                                                                                                                                                                        - .---- - -                     -   - - ---"-- --.              --     -      -_   .... -   -   ~-    -
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                                                                                                                                                                               1
douglas godinich

From:                                                                                   No- Reply@eFiJeTexas.gov
Sent:                                                                                   Thursday,                 December          18, 2014 10:22 AM
To:                                                                                     dtgJaw1@aol.com
Subject:                                                                                eFileTexas.gov                       A- Notification                   of Service - 3529818




                                                                                                                                                                                     Notification of Service
                                                                                                                                                                                               Envelope Number: 3529818

This is a notification of service for the filing listed. Please click the link below to retrieve the submitted
document.



 Case Number                                                                              .PR-0075144
 Case Style
.__     .~.__ ~.~_ __h                                                       '   ._.._..-.
                                                                                          i     Estate          of Charles Edward Twymon, Sr.,.'_.._."
                                                                                                  .~ __ .'__ '__~_'_ ._._ _ __ ._._ ~. __ ' ~_ ._._.,_, ",_" _._"_. .
                                                                                                                                                                      Deceased
                                                                                                                                                                       __ .,', ~_. __ ~. _,,__ ,.__ ",..,.                             ~.    ,_..       ', _.    .'",'
 Date/Time Submitted                                                                            12/18/2014 10:21 :51 AM
 Filing Type                                                                              ;Proposed Order
 -     ,-        - _.---._._,- "--"-.-         -~ -          .--._- -.----.- - ._,------ .----- --~-.-----.-.. ~--- ---- •..-- - ----- - - -.                                   '.   --_.__ ..--_._.- --- --- ---,             -    ."._-   --~--.--------.     --
 Filed By
 •••   __   ••      _    ••   ••   _   •••   •••      ._~.              o~         .o
                                                                                          .Thomas McQuage
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                                                                                           ,Tarris L. Woods:
 Service Contacts
                                                                                                tarris Woods (dtglaw1@aol.com)




                                                             :https:/Iefile.txcourts.govNiewServiceDocuments.aspx?ADM IN=O&SID=202dd90c- i
 File Stamped
                                                             ;ef6c-4456-9260-7 e7c354f2730&RI O=5b6c6665-e885-4209-age5-1 b882e344750 :
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                                                                                                                                                 1
                                     No PR-0075144
 IN THE ESTATE OF                          §    IN THE PROBATE COURT

 CHARLES EDWARD TWYMON,                      §
 SR.,                                        §    GALVESTON COUNTY, TEXAS

                                    No. PR-007-3664

 IN THE ESTATE OF                            §     IN THE PROBATE
                                             §
 CHARLES EDWARD TWYMON,                      §     COURT OF

 SR.,
                                             §
 DECEASED                                    §     GALVESTON COUNTY, TEXAS


                 FINDINGS OF FACT AND CONCLUSIONS OF LAW

Findings of Fact:

1. On May 12, 2014, Charles E. Twymon, Jr., and Sandra T. Kenner applied for the probate

of the Will of Charles Edward Twymon, Sr., hereinafter called Decedent, as a Muniment of

Title.

2. The Will offered for probate was self-proved according to law during the lifetime of said

Decedent.

3. The Decedent died on July 7,2012, at 3112 Winnie, Galveston, in Galveston County,

Texas, at the age of 79 years.

4. The Decedent's domicile at the time of his death was 3112 Winnie, Galveston, TX 77550,

Galveston County, Texas.

5. Four years did not elapse since the death of Decedent or prior to the filing of the

Application.

6. The Decedent was over eighteen (18) years of age and of sound mind at the time of
executing said Will.

7. The said Will was executed on April 30, 1999, with the formalities and solemnities and

under the circumstances required by law to make it a valid Will.

8. The said Will could not be located after Decedent's death after the exercise of reasonable

diligence, but a true and correct copy of said Will was filed in this cause by Applicants,

Charles E. Twymon, Jr., and Sandra T. Kenner.

9. Said Will was not revoked by Decedent.

10. No State, governmental agency of the State, nor charitable organization is named by the

Will as a devisee.

11. There are no unpaid debts owing by the Estate of Decedent, other than debts secured by

liens on real estate.

12. On September 10,2012, this Court entered its Judgment Declaring Heirship in its cause

number PR-007-3664, reciting the heirs at law of Charles Edward Twymon, Sr., and

directing the issuance of letters of independent administration in the Estate of Charles

Edward Twymon, Sr.

13. Charles E. Twymon, Jr., and Sandra T. Kenner filed a bill of review to revise and correct

the Judgment Declaring Heirship entered in cause number PR-007-3664, less than two years

after the date of that judgment.

Conclusions of Law.

1. The copy of the Will described above was proved and established as the Last Will and

Testament of the Decedent, entitled to probate as a Muniment of Title.

2. Charles E. Twymon, Jr., and Sandra T. Kenner showed error in the Judgment Declaring

Heirship entered in cause number PR-007-3664, requiring that judgment to be be revised and
corrected by vacating that judgment, so as to effectively replace that judgment with an order

probating the Will of the Decedent described above.

              SIGNED this __       day of                           ,2014.




                                            JUDGE PRESIDING
