in the Estate of Rodney Joe Knight

ACCEPTED
12-14-0030-cv
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/24/2015 11:59:24 AM
CATHY LUSK
CLERK

No. 12-14-00300-CV

FILED IN
12th COURT OF APPEALS
COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS
TYLER, TEXAS
TYLER, TEXAS 4/24/2015 11:59:24 AM
CATHY S. LUSK
Clerk

IN THE ESTATE OF RODNEY JOE KNIGHT, DECEASED

On Appeal from the County Court at Law,
Cherokee County, Texas, Cause No. 12025,
The Honorable Kelley D. Peacock, presiding

APPELLANT’S REPLY BRIEF

Bill Pedersen, III
Texas Bar No. 24030011
Email: bill@bpedlaw.com
2501 Oak Lawn Avenue
Suite 380, LB - 50
Dallas, Texas 75219
Tel. (214) 630-4554
Fax. (214) 630-9264
Attorney for Appellant,
Natosha Moore-Knight
 TABLE OF CONTENTS
Page

INDEX OF AUTHORITIES...................................................................................... 3

RESPONSE TO APPELLEE’S BRIEF ..................................................................... 4

PRAYER .................................................................................................................... 7

CERTIFICATE OF COMPLIANCE ......................................................................... 8

CERTIFICATE OF SERVICE .................................................................................. 8

Appellant’s Brief Page 2
 INDEX OF AUTHORITIES
Page
CASES

Williams v. Bank One, Texas, N.A.,

15 S.W.3d 110 (Tex. App.-Waco 1999, no pet.) ……………..…………..………4

RULES
Tex. R. App. P. 9.4(i)(1) ............................................................................................8
Tex. R. App. P. 9.4(i)(2)(C) .......................................................................................8
Tex. R. Civ. P. 245 .....................................................................................................4
Tex. R. Civ. P. 252 .....................................................................................................4

Appellant’s Brief Page 3
 RESPONSE TO APPELLEE’S BRIEF

Appellant seeks to respond to Appellee’s Brief. Appellant will not repeat

arguments or points raised and argued in Appellant’s Brief, only address certain

specific claims and arguments made by the Appellee.

Appellee seems to have two main points: (1) Appellant’s Motion for

Continuance was not ruled on, but if it was Appellant did not preserve error, and

(2) the absence of any additional evidence being heard on the merits of this lawsuit

are due to Appellant’s lack of diligence.

“NOSTRADAMUS” DEFENSE

The trial court in this case, following Appellant’s urging of her Motion for

Continuance, heard testimony. R.R. vol. 2, pp. 5-6. The Texas Rules of Appellate

Procedure provide that a trial court may implicitly rule on a request, objection or

motion. Tex. R. App. 33.1(a)(2)(A), Williams v. Bank One, Texas, N.A., 15 S.W.3d

110 (Tex. App.-Waco 1999, no pet.). Appellant urged her Motion to Continue the

hearing, the Court stated “I really feel like we need to hear this today,” and

testimony was heard. R.R. vol. 2, p. 5, lines 21-22. As discussed in Appellant’s

Brief, the trial court’s denial was an abuse of her discretion, violated Texas Rules

of Procedure 252 & 245, and denied Appellant due process.

Appellee then appears to argue that this Court should evaluate the trial

court’s January 7 denial in light of the entire procedural history of the case, even

Appellant’s Brief Page 4
that which occurred after January 7. This argument presumes the trial court to be

clairvoyant. Appellant would note that the Appellee cites to no authority that

would suggest that a denial of a motion to continue should be evaluated based on

what occurs after the denial. Appellee is attempting to create a duty of post-denial

diligence which does not exist.

APPELLEE’S OBSTRUCTION

Appellee is attempting to establish waiver, or a lack of diligence, on

Appellant’s part, in the period between the only evidentiary hearing in this case

and the entry of the Judgment. Appellant does not believe that this argument has

any real basis in law, but will respond to it without conceding its logical soundness

or legal basis.

Appellant sought new counsel following the January 7 evidentiary hearing.

Appellee was aware of this no later than May 19, 2014, when undersigned counsel

filed a Motion for Substitution of Counsel. C.R. 99-103. Appellee opposed this

substitution, and the Motion was not granted until August 13, 2014. C.R 183.

Appellee’s counsel refused to “forward any documents” related to the litigation

until the Motion to Substitute was granted. C.R. 131. Despite this discourteous and

unprofessional obstruction, undersigned counsel did his best to represent his client

even before his substitution.

Appellant’s Brief Page 5
 During this time period, when Appellee was fully aware that Appellant had

new counsel, and refused to provide even a courtesy copy of any documents

related to the litigation, Appellee filed his “Motion to Dismiss Claims in Will

Contest.” C.R. 104-104-109. This pleading asserted that the issue of informal

marriage had been tried by consent during the January 7 hearing. Even before the

trial court could hold a hearing on Appellant’s Motion for Substitution, which

Appellee insisted upon, Appellant filed both a Response and a Supplemental

Response to this pleading. C.R. 143-163, 177-182. The Response noted the

communication problems briefly described above, specially excepted to the Motion

to Dismiss, and then addressed the merits of the Motion to Dismiss. C.R. 143-163.

Specifically, Appellant noted that the trial court had not ruled on the question of

informal marriage, and that no conventional trial on the merits had been held. Id.

The Supplemental Response was filed following a telephonic hearing on July 31.

C.R. 177. That was a conference held in chambers, and no record was made of that

conference. It is inaccurate, if not deliberately misleading, for Appellee’s Brief to

state “The Appellant never complained or denied that the issue of informal

marriage had been tried by consent on January 7, 2014 until this appeal.”

Appellee’s Brief, page 7.

The point of this procedural history is to point out that undersigned counsel

wasn’t in the case until August 13, when the Court announced that it had already

Appellant’s Brief Page 6
finally decided the question of common law marriage. R.R. vol. 3, pp. 14-15, lines

22-6. No opportunity existed for the Appellant to request a hearing or an

opportunity to present additional evidence, because Appellee wouldn’t even

“forward any documents” related to the case until the trial court granted

Appellant’s Motion to Substitute Counsel. C.R. 131. On the same date the trial

court granted Appellant’s Motion to Substitute, the trial court announced that the

case was over.

Appellee’s assertion that additional evidentiary hearings occurred is contrary

to the record. The only time a witness was sworn, or anything other than lawyers’

arguments were heard, was on January 7, 2014.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

will reverse the Judgment of the Trial court, and remand this case to that Court for

further proceedings, so that Appellant may fairly litigate the existence of an

informal marriage.

Respectfully submitted,

LAW OFFICE OF BILL PEDERSEN, III, PLLC

By: /s/ Bill Pedersen, III
Bill Pedersen, III
Texas Bar No. 24030011
Email: bill@bpedlaw.com
2501 Oak Lawn Avenue
Suite 380, LB - 50

Appellant’s Brief Page 7
 Dallas, Texas 75219
Tel. (214) 630-4554
Fax. (214) 630-9264
Attorney for Appellant
Natosha Moore-Knight

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations of Tex. R. App. P.
9.4(i)(2)(C) because it contains less than 7,500 words, excluding the parts of
the brief exempted by Tex. R. App. P. 9.4(i)(1).

2. This brief complies with the typeface requirements of Texas Rule of
Procedure 9.4(e) because this brief has been prepared in a proportionally
spaced typeface using “Microsoft Word 2010” in fourteen (14) point “Times
New Roman” style font.

/s/ Bill Pedersen, III
Bill Pedersen, III

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was
forwarded to all counsel of record via electronic filing on this 24th day of apRIL,
2015, as follows:

Wayne D. Haglund By facsimile and electronic filing
State Bar No. 08697500
Email: whaglund@haglundlaw.com
P.O. Box 713
107 West Kerr Avenue
Lufkin, Texas 75902
Tel. (936) 639-0007
Fax. (936) 639-0016
Attorney for Roy Knight

/s/ Bill Pedersen, III
Bill Pedersen, III

Appellant’s Brief Page 8