                                                                                      ACCEPTED
                                                                                  12-15-00246-CV
                                                                     TWELFTH COURT OF APPEALS
                                                                                   TYLER, TEXAS
                                                                            12/29/2015 2:24:05 PM
                                                                                        Pam Estes
                                                                                           CLERK

                     DOCKET NO. 12-15-00246-CV

      ________________________________________________________
                                                          FILED IN
                                                           12th COURT OF APPEALS
                                                                TYLER, TEXAS
                               IN THE
                                                           12/29/2015 2:24:05 PM
                   TWELFTH COURT of APPEALS
                                                                  PAM ESTES
                             OF TEXAS                               Clerk
                               at Tyler
            ____________________________________________


       In the Matter of the Estate of Willie Sue Hammack, Deceased


LARRY GENE MARSH, BILLIE MARIE BUCKLEY, DEBORAH SUE STUART,
                            AND
                      TERRY LYN MARSH,
                          Appellants,
                              v.
  ESTATE OF WILLIE SUE HAMMACK BY MORRISON HAMMACK, JR.,
                           Appellee.

            ____________________________________________

                      Appeal in Cause No. PB1412226
          From the County Court at Law, Nacogdoches County, Texas
                      The Honorable Jack Sinz, Judge
            ____________________________________________


    BRIEF FOR APPELLEE ESTATE OF WILLIE SUE HAMMACK BY
                  MORRISON HAMMACK, JR.,




                                   -1-
                  I. Identity of Parties, Counsel and Trial Court

APPELLEE / APPLICANT

    ESTATE OF WILLIE SUE HAMMACK BY MORRISON HAMMACK, JR.

COUNSEL FOR APPELLEE / TRIAL COUNSEL FOR APPLICANT

    Christopher C. Hughes
    1801 North St.
    Nacogdoches, Texas 75963
    Tex. Bar No. 24074452
    Ph: (936)-569-2327Fax: (936)-569-7932
    Email: chughes@chugheslaw.com

    Russell R. Smith
    1801 North St.
    Nacogdoches, Texas 75963
    Tex. Bar No. 24074452
    Ph: (936)-569-2327Fax: (936)-569-7932
    Email: rsmith@fairchildlawfirm.com


APPELLANTS / CONTESTANTS

    LARRY GENE MARSH
    BILLIE MARIE BUCKLEY
    DEBORAH SUE STUART, AND
    TERRY LYN MARSH

COUNSEL FOR APPELLANTS / CONTESTANTS

    TRIAL COUNSEL:
    Robert M. Minton
    Texas Bar No. 14195000
    Minton & Brown, PLLC
    P.O. Box 1688
    Henderson, Texas 75653
    Ph: 903-657-3543
    Fax: 903-657-3545
    Email: mintonbrown@suddenlinkmail.com



                                       -2-
    APPELLATE COUNSEL:
    Robert M. Minton
    Texas Bar No. 14195000
    Minton & Brown, PLLC
    P.O. Box 1688
    Henderson, Texas 75653
    Ph: 903-657-3543
    Fax: 903-657-3545
    Email: mintonbrown@suddenlinkmail.com

TRIAL COURT

    The Honorable Jack Sinz
    County Court at Law
    Nacogdoches County, Texas




                                  -3-
                                                  II. Table of Contents

I. Identity of Parties and Counsel ...................................................................................... .2
II. Table of Contents ........................................................................................................... 4
III. Index of Authorities ...................................................................................................... 5
IV. Statement of the Case ................................................................................................... 1
V. Issues Presented ............................................................................................................. 7
VI. Statement of Facts ........................................................................................................ 9
VII. Summary of the Argument ......................................................................................... 10
VIII. Argument .................................................................................................................. 11
IX. Conclusion/Prayer ...................................................................................................... 21




                                                              -4-
                                             III. Index of Authorities




                                                         Cases
In re Estate of Allen, 407 S.W.3d 335, (Tex. App. Eastland 2013) ......................... 11,12,13
In re Estate of Perez, 324 S.W.3d 257, 262 (Tex. App.—El Paso 2010, no pet.)…….….11
In re Estate of Cornes, 175 S.W.3d 491, 495 (Tex. App.—Beaumont 2005, no
pet.)………………………………………………………………………………..11,17,19
Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. den'd)…11,19
Chovanec v. Chovanec, 881 S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, no
writ………………………………………………………………………………...11,12,14
Kamoos v. Woodward, 570 S.W.2d 6, 8-9 (Tex. Civ. App.—San Antonio 1978, writ ref'd
n.r.e.)…………………………………………………………………………...12,13,14,18
Estate of Everett H. Rothrock Deceased, 312 S.W. 3d 271 (2010)…………………...17,18
In Re Estate of Campbell, 343 S.W.3d 899 (Tex. App. Amarillo, 2011) ........................... 18
Brown v. Byrd, 512 S.W.2d 753 (Tex. Civ. App. Tyler, 1974)………………………..18,19
Orr v. Walker, 438 S.W.3d 766 (Tex. App. Houston-1st Dist., 2014). ............................... 19
In Re Estate of Williams, 111 S.W. 3d 259 (Tex. App. Texarkana, 2003)………………..20



                                                       Statutes
Texas Estate Code 256.003 ................................................................................................ 11




                                                           -5-
                                     IV. Statement of the Case

This is an Appeal from the Order Admitting Will to Probate as Muniment of Title. Entered

by the County Court at Law of Nacogdoches County, Texas, of a Will filed more than four

years after the death of the Testatrix. The evidence at the Trial Court was factually and

legally sufficient to support the Judgment of the Court, finding that Applicant, Morrison

Hammack, Jr. was not in default for failing to present the will for probate within four years

of the date of death of Testatrix.




                                                -6-
                             V. Issues Presented for Review

Appellant presented the following issues for review:

   1. The evidence supporting the Trial Court’s finding that the Applicant was not in

      default for failing to present the will for probate within four years of the date of

      death of Decedent was factually insufficient, (CR-56, CR 74-75).

   2. The Trial Court’s finding that the Applicant was not in default for failing to present

      the will for probate within four years of the date of Decedent’s death was so

      against the great weight and preponderance of the evidence as to be manifestly

      unjust, (CR-56, CR 74-75).

   3. The evidence supporting the Trial Court’s finding that the Applicant was not in

      default for failing to present the will for probate within four years of the date of

      death of Decedent was legally insufficient, (CR-56, CR 74-75).




                                             7
                           DOCKET NO. 12-15-00246-CV

         ________________________________________________________

                                    IN THE
                        TWELFTH COURT of APPEALS
                                  OF TEXAS
                                    at Tyler
                 ____________________________________________


            In the Matter of the Estate of Willie Sue Hammack, Deceased


LARRY GENE MARSH, BILLIE MARIE BUCKLEY, DEBORAH SUE STUART,
                            AND
                      TERRY LYN MARSH,
                          Appellants,
                              v.
  ESTATE OF WILLIE SUE HAMMACK BY MORRISON HAMMACK, JR.,
                           Appellee.

                 ____________________________________________

                          Appeal in Cause No. PB1412226
              From the County Court at Law, Nacogdoches County, Texas
                          The Honorable Jack Sinz, Judge
                ____________________________________________


       BRIEF FOR APPELLEE ESTATE OF WILLIE SUE HAMMACK BY
                     MORRISON HAMMACK, JR.,



TO THE HONORABLE COURT OF APPEALS:

The Trial Court’s Order Admitting Will to Probate as Muniment of Title entered on June
25, 2015 should be affirmed.
                                           8
                                       Statement of Facts

1. This is an Appeal from an Order Admitting Will to Probate as Muniment of Title. (CR-56).

Willie Sue Hammack passed away on July 2, 2006 in Nacogdoches County. Morrison Hammack,

Jr. was the husband of Willie Sue Hammack at the time of her death. Willie Sue Hammack left a

valid will dated April 2, 1986, which was never revoked. (CR-17). Morrison Hammack, Jr. was

named as Independent Executor in the will. Generally, the will provided for the transfer of Willie

Sue Hammack’s separate property to her children from a prior marriage. Additionally, the will

provided for the residue of Willie Sue Hammack’s estate to pass to Morrison Hammack, Jr. Mor-

rison Hammack, Jr. was unaware of the necessity to probate the will nor did he know there was a

statute of limitations. Morrison Hammack, Jr. became aware of the necessity to probate the will

in May 2014, when attempting to sell his house. He subsequently retained counsel and then filed

an Application for Probate of Will as Muniment of Title with the County Court at Law in Nacog-

doches County, Texas on July 17, 2014, in order to remedy the title issues. (CR-8). Contestants

Larry Gene Marsh, Billie Marie Buckley, Deborah Sue Stuart, and Terry Lyn Marsh filed their

Contest to Probate of Last Will and Testament of Willie Sue Hammack, and Codicils (if any) on

July 31, 2014, on grounds that the will could not be probated due to the passing of the statute of

limitations. (CR-26). Contestants filed their contest despite the concession that it was Willie Sue

Hammack’s wishes for the residue of the estate to pass to Morrison Hammack, Jr. (RR-49-50). As

such, this case is motivated by Appellants attempts to subvert the intentions of Willie Sue Ham-

mack and prevent Morrison Hammack Jr. from inheriting by and through the will.




                                                9
                               Summary of the Argument

The Trial Court correctly determined and the evidence legally and factually supports that

   Morrison Hammack, Jr. was not in default for failing to probate the will of Willie Sue

   Hammack within four years of her death. The Trial Court correctly determined and the

   evidence shows that there was good cause to explain the failure of Morrison Hammack,

   Jr. to present the will for probate within four years from the date of Willie Sue

   Hammack’s death.




                                           10
                                        Argument

Appellee hereby responds to the issues presented for review by Appellant. Appellee’s reply

   points can all be covered at one time and in one argument to avoid duplication of same.

   Appellee’s reply points to the issues presented for review by Appellant are as follows:

A. The evidence supporting the Trial Court’s finding that Applicant was not in

   default was legally and factually sufficient. The Trial Court’s finding that

   Applicant was not in default for failing to present the will for probate within 4

   years of the date of Decedent’s death was not against the great weight and

   preponderance of the evidence. The arguments supporting same are as follows:

      1. The Texas Estates Code provides for the following as it relates to the probate of

          a will: “A will may not be admitted to probate after the fourth anniversary of the

          testator's death unless it is shown by proof that the applicant for the probate

          of the will was not in default in failing to present the will for probate on or

          before the fourth anniversary of the testator's death.” Tex. Est. Code 256.003(a)

          (emphasis added). A long line of Texas case law has determined that “"default"

          means the "failure to probate a will because of the absence of reasonable

          diligence on the part of the party offering the instrument."” See In re Estate of

          Allen, 407 S.W.3d 335, (Tex. App. Eastland 2013); In re Estate of Perez, 324

          S.W.3d 257, 262 (Tex. App.—El Paso 2010, no pet.); In re Estate of Cornes, 175

          S.W.3d 491, 495 (Tex. App.—Beaumont 2005, no pet.); Schindler v. Schindler,

          119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. den'd); Chovanec v.


                                            11
   Chovanec, 881 S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, no writ);

   Kamoos v. Woodward, 570 S.W.2d 6, 8-9 (Tex. Civ. App.—San Antonio 1978,

   writ ref'd n.r.e.).

2. Similarly, “The case law in Texas is quite liberal in permitting a will to be offered

   as a muniment of title after the statute of limitations has expired upon the

   showing of an excuse by the proponent for the failure to offer the will earlier.”

   In re Estate of Allen, 407 S.W.3d 335; Chovanec, 881 S.W.2d at 137; Kamoos,

   570 S.W.2d at 8. Furthermore, “[t]he tendency of our courts has been from its

   earliest decisions to permit wills to be filed after the four-year period, where

   there is any evidence of a probative force which would excuse the failure to offer

   the will sooner.” In re Estate of Allen, at 335.

3. “The court in Chovanec, reversing a summary judgment, held that the evidence

   raised a genuine issue of material fact as to whether the decedent's husband was

   in default for failing to timely offer her will for probate within four years of her

   death; he offered the will for probate thirteen years after her death. The court

   reasoned that the summary judgment evidence showed that the husband was not

   aware that it was necessary to probate the will, that he did not believe probate

   was necessary because he inherited everything from his wife, that he believed

   the land was his separate property, and that he was unaware of any title problems

   during a period when three successive mineral leases had been executed on the

   land” In re Estate of Allen, 407 S.W.3d 335; Chovanec, 881 S.W.2d 135.



                                       12
4. “Kamoos stands for the proposition that a proponent's belief that probate was

   unnecessary, coupled with a concern over the cost of probate, can constitute

   legally and factually sufficient evidence to support admitting a will to probate

   after four years” In re Estate of Allen, 407 S.W.3d 335; Kamoos, 570 S.W.2d at

   8-9.

5. “Similar to the facts in Kamoos, the court in Perez found that the wife's limited

   financial resources and belief that probate was unnecessary were legally

   sufficient to uphold the trial court's conclusion that the wife was not in default

   for failing to present the will for probate within four years after her husband's

   death. She testified that she did not know that there was a time limit in which to

   probate a will and that she thought her husband's lawyer had taken care of the

   matter regarding the will.” In re Estate of Allen, 407 S.W.3d 335; Perez, 324

   S.W.3d at 263.

6. In this case, Morrison Hammack, Jr. was not in default according to the case law

   outlined above. According to Morrison Hammack, Jr.’s deposition testimony,

   he (1) did not know he was supposed to do anything with his wife’s will (RR-11

   through 12); (2) did not know what probate means (RR-17); (3) did not know

   there was a time limit to file the will (RR-12); (4) thought everything had been

   done as far as the will goes (RR-12); (5) did not have the money to file the will

   even if he had known to do so (RR-12); (6) only filed the will because he needed

   to clear up title issues to sell his house (RR-12); and (7) he hired an attorney to



                                     13
        file the will almost immediately after he learned the will must be filed (RR-12

        through 13).

     7. As such, the evidence supporting the Trial Court’s finding that Applicant was

        not in default was legally and factually sufficient. Additionally, the Trial Court’s

        finding that Applicant was not in default for failing to present the will for probate

        within 4 years of the date of Decedent’s death was not against the great weight

        and preponderance of the evidence.

B. Rebuttal of Appellant’s argument and suggestions as to ability of Morrison

  Hammack, Jr.’s financial ability.

     1. At trial and here, Appellants have focused almost wholly on disproving

        Appellee’s contention that he lacked the financial resources to proceed with

        probating the will even if he had been aware that probate was necessary.

        However, Appellee points out that the financial consideration is only a piece of

        the reasoning behind the holding in Kamoos. Kamoos, 570 S.W.2d at 8-9. In a

        very similar factual scenario, the Court in Chovanec said a fact issue existed

        because the proponent was “not aware that it was necessary to probate the will,

        but also that he did not believe probate was necessary because he inherited

        everything from his wife and he believed the land was his separate property.

        [Proponent] also was unaware of any title problems during a period when three

        successive mineral leases had been executed on the land. When [proponent]

        realized there may be title problems, he immediately offered the will for probate.”

        Chovanec, 881 S.W.2d at 137. The same scenario existed here. There was a fact

                                           14
   issue as to whether Appellee was in default and the Trial Court properly

   determined based upon the evidence that Appellee was not in default.

   Appellant’s attempts to show that Appellee had the financial capability to

   proceed with probate are 1) lacking based on the evidence, and 2) not persuasive

   even if found to be true based upon the relevant case law. However, in an effort

   to thoroughly address all of Appellant’s points, rebuttal arguments are outlined

   below.

2. Appellants make reference in their brief to Appellee’s testimony regarding

   “money in account in the bank” (Appellant’s Brief page 7). In particular, Mr.

   Minton’s question to Appellee was “Did you-all have any money in the bank or

   any accounts in the bank at the time of her death?” (RR-20). Mr. Minton failed

   to specify whether his question was inquiring as to 1) money in the bank or 2)

   accounts in the bank. (RR-20). Nevertheless, the record does not reflect any

   evidence or testimony concerning 1) the amount in the bank account (although

   Appellee was asked (RR-20-21)); or 2) the type of account. For example, if the

   account was a payable on death account and payable to John Doe upon the death

   of Willie Sue Hammack, Mr. Hammack would not have had the benefit of the

   funds in said account to use for the probate of the will. Hypothetically, if the

   account had a balance of $5.00 upon the death of Willie Sue Hammack, Mr.

   Hammack again would not have been in possession of financial resources

   necessary to proceed with the probate of the will.



                                    15
3. Next, Appellants make reference Appellee’s testimony concerning his

   community property interest in the home he occupied with his late wife.

   Appellants argument that Appellee had sufficient funds to pay for the probate

   process seems disingenuous to the extent Appellants insinuate that Appellee

   should have sold the home he occupied to liquidate his one-half community

   property interest in order to probate the will in which his wife devised her one-

   half community property interest in the home to Appellee. In short, these are not

   funds that Appellee should have been expected to liquidate to probate a will that

   he did not know needed to be probated.

4. Thirdly, Appellees refer to testimony concerning the value of the estate

   (Appellant’s Brief page 7). As discussed above, estate assets are not funds that

   Appellee should have been expected to liquidate to probate a will that he did not

   know needed to be probated. Because there were no issues surrounding the

   distribution of separate property remaining, Mr. Hammack only became aware

   of the necessity for probate when trying to sell the only substantial asset

   remaining in the estate, the home. According to the will, this property was to

   pass to Mr. Hammack. (CR-19).

5. Lastly, Appellants generally refer to testimony from Mr. Marsh concerning

   accounts of Mr. and Mrs. Hammack (Appellant’s Brief page 8). Appellants make

   reference to testimony from Mr. Marsh concerning the balance of accounts of

   Mr. and Mrs. Hammack’s approximately two years and two strokes prior to Mrs.

   Hammack’s death. Of course, the record reflects no evidence of the balances on

                                    16
         the accounts upon the death of Mrs. Hammack. Similarly, the record reflects no

         evidence concerning the amounts that were necessary to be expended from the

         accounts to pay for medical care of Mrs. Hammack. Lastly, the record reflects

         no evidence concerning the types of the accounts and/or their disposition upon

         the death of Mr. and Mrs. Hammack. Again, Appellant’s arguments as to the

         financial ability of Appellee are lacking and futile.

C. Appellants’ case law references are not on point. A detailed analysis of each main

   case referenced by Appellants to support their position is outlined below with a

   brief explanation as to why each case is not applicable and/or not persuasive.

      1. Estate of Everett H. Rothrock Deceased, 312 S.W. 3d 271 (2010). There are

         numerous issues that are immediately clear when reviewing this case. In

         Rothrock, the children of the deceased chose and agreed not to probate the will

         within the four-year time period. Id. At 273. Rather, the proponent requested

         and received two cameras from the deceased’s estate. Id. Proponent testified that

         he performed an investigation into decedent’s property holdings. See generally,

         Id. He also testified that he was a very successful lawyer in Washington D.C. Id.

         One would think this would provide him with both the knowledge of the

         necessity to probate and the finances with which to do so. Upon analysis, the

         Court stated “[a] family agreement is not sufficient to excuse Jerry's

         noncompliance with the four-year limitation. See In re Estate of Cornes, 175

         S.W.3d at 496. In other words, Jerry cannot rely on the agreement with his five

         siblings as an excuse for noncompliance with the statutory period and for making

                                            17
   what was, in hindsight, the wrong decision.” Id at 275. The main difference

   between Rothrock and this case is that there was a conscious decision by the

   parties in Rothrock to not probate the will. Here, Appellee did not know probate

   was necessary and did not make a conscious decision to not probate the will. In

   fact, upon his learning that probate was necessary, he immediately commenced

   the process. In short, Rothrock is not analogous to this case.

2. In Re Estate of Campbell, 343 S.W.3d 899 (Tex. App. Amarillo, 2011).

   Appellants point out that Campbell cites language indicating that a person is

   charged with knowledge that a will must be filed for probate within four years.

   However, Appellants omitted the Court in Campbell’s next sentence which states

   “[b]ut see Kamoos v. Woodward, 570 S.W.2d 6, 8-9 (Tex.App.--San Antonio

   1978, writ ref'd n.r.e.) (holding that proponent of will was not in default for

   failing to present the will for probate within four years of the testator's death

   where due to the nature of the property of which she was aware and her limited

   resources, she didn't think it necessary to probate the will). In Re Estate of

   Campbell, 343 S.W.3d 899, 903 (Tex. App. Amarillo, 2011). As such, Campbell

   is not persuasive in the case at hand.

3. Brown v. Byrd, 512 S.W.2d 753 (Tex. Civ. App. Tyler, 1974). In this 1974 case,

   the proponent offered the will for probate 27 years after the death of the decedent.

   Additionally, the holding in the Byrd case seemed to be reasoned around

   circumstances surrounding a family agreement during the years after the

   decedent’s death. Moreover, the proponent in Byrd said it would have been hard

                                     18
   to travel from California to Texas to probate the will. Id at 755. Although it is an

   excuse, it does not appear to be a reasonable excuse. In the case at hand,

   Appellee’s reasoning for not having probated the will within four years run

   deeper than inconveniences of travel. As such, the facts of the Byrd case do not

   match with the facts of the case at hand. Moreover, the Byrd case is another

   example (as in Rothrock) of the failure to probate the will contingent upon a

   peripheral family agreement. Conversely, in the case at hand, Appellee had no

   discussions or knowledge surrounding the probate of the will until immediately

   before the filing in the trial court. Byrd is not persuasive.

4. In Re Estate of Ruby Fowler Cornes, 175 S.W.3d 491 (Tex. App. Beaumont,

   2005). The Cornes case is off target as it relates to Appellants’ argument. In

   Cornes, the proponent’s only excuse for not offering the will for probate within

   the four years was “out of respect” for the relatives. Id at 495. First, in this case,

   there is a multitude of evidence supporting the Trial Court’s ruling that Appellee

   was not in default for failing to probate the will within four years. Secondly, the

   testimony in Cornes again represents a conscious decision to not probate the will.

   Such a decision was not a factor in the case at hand. Cornes is not persuasive.

5. Orr v. Walker, 438 S.W.3d 766 (Tex. App. Houston-1st Dist., 2014). The Walker

   case is not on point merely for the fact that upon a reading of the case it is clear

   that the proponents did not offer an excuse for the failure to file the within the

   requisite four-year time period. Therefore, the Court held that the applicants

   were in default. The fact scenario is completely different in the case at hand

                                       19
   because Appellee proffered evidence supporting an excuse for not filing the will

   within the four-year time period. The Walker case does not stand for any

   proposition in contradiction to Appellee’s argument.

6. Schindler v. Schindler, 119 S.W.3d (Tex. App. Dallas, 2003). Again, Appellants’

   reference to the Schindler case is off target and is not analogous to the case at

   hand. Some of the parties in Schindler were devisees of persons who were found

   to be in default. The parties that were found to be in default were labelled such

   because there was no evidence of an excuse. Similarly, other parties were found

   to be in default because they presented no evidence tending to support not being

   in default. Id at 930. Wholly, the Schindler case is not persuasive and/or

   analogous to the case at hand.

7. In Re Estate of Williams, 111 S.W. 3d 259 (Tex. App. Texarkana, 2003). The

   Williams case is yet another example of the proponent not offering an excuse or

   evidence of not being in default for failure to offer the will within four years of

   the death of the decedent. Again, the Williams case is not relevant to the case at

   hand because, as cited above, the evidence in this case is clear that Appellee had

   multiple reasonable excuses for not offering the will to probate within 4 years of

   the death of Mrs. Hammack and therefore the Trial Court properly found that he

   was not in default.




                                     20
                                    X. CONCLUSION

       From the evidence presented at trial, the Trial Court properly found the following:

1) Appellee was not in default for failing to probate the will within four years from the date

of Willie Sue Hammack’ s death, 2) there was good cause to explain the failure of Appellee

to present the will for probate within four years after the death of Willie Sue Hammack. As

such, the Trial Court properly admitted the will as a muniment of title. The evidence

supporting the Trial Court’s finding that Applicant was not in default was legally and

factually sufficient. The Trial Court’s finding that Applicant was not in default for failing

to present the will for probate within four years of the date of Willie Sue Hammack’s death

was not against the great weight and preponderance of the evidence.

                                       XI. PRAYER

       WHEREFORE PREMISES CONSIDERED, Appellee prays that this Court uphold

and affirm the Trial Court’s Order Admitting Will to Probate as Muniment of Title and also

prays for all other and further relief which may, under the circumstances shown, be required.



                                               Respectfully Submitted,

                                               FAIRCHILD, PRICE, HALEY & SMITH, LLP

                                               By: /s/ Christopher C. Hughes
                                                   Christopher C. Hughes
                                                   State Bar No. 24074452
                                                   Russell R. Smith
                                                   State Bar No. 18682310
                                                   1801 North St.
                                                   Nacogdoches, Texas 75935-1719
                                                   (936) 564-8785 phone

                                             21
                                                    (936) 559-5000 fax
                                                    chughes@chugheslaw.com


                               CERTIFICATE OF SERVICE

        In compliance with Rule 21a, Texas Rules of Civil Procedure, I hereby certify that a
true and correct copy of the above and foregoing instrument was served upon all attorneys
of record on this the 29th day of December, 2015 by one and/or more of the following
methods: (1) depositing said instrument in a post office or official depository under the care
and custody of the United States Postal Service, postage prepaid, certified mail, return receipt
requested, or first class mail; (2) telephonic transfer to recipient's current telecopier num-
ber, or (3) hand delivered.


                                                   /s/ Christopher C. Hughes
                                                   Christopher C. Hughes




                                              22
                          CERTIFICATE OF COMPLIANCE

       The undersigned certifies that the Appellee’s Brief, except for the caption, identity
of parties and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certification of
compliance, and appendix, as set out in Tex. R. App. P. 9.4(i)(1), hereby contains the total
of 3,297 words.


                                              Respectfully Submitted,

                                              FAIRCHILD, PRICE, HALEY & SMITH, LLP



                                              By: /s/ Christopher C. Hughes
                                                  Christopher C. Hughes
                                                  State Bar No. 24074452
                                                  1801 North St.
                                                  Nacogdoches, Texas 75935-1719
                                                  (936) 564-8785 phone
                                                  (936) 559-5000 fax
                                                  chughes@chugheslaw.com




                                             23
