Residential Credit Solutions, Inc. v. Martha Burg

ACCEPTED 01-15-00067-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/10/2015 4:22:24 PM CHRISTOPHER PRINE CLERK No. 01-15-00067-CV IN THE COURT OF APPEALS FILED IN FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 7/10/2015 4:22:24 PM CHRISTOPHER A. PRINE Clerk RESIDENTIAL CREDIT SOLUTIONS, INC., Appellant, v. MARTHA BURG, Appellee. Appealed from the 281 st Judicial District Court of Harris County, Texas Trial Court Cause No. 2013-47157 RESPONSE IN OPPOSITION TO APPELLEE'S MOTION FOR DAMAGES FOR FRIVOLOUS APPEAL Nathan J. Milliron State Bar No. 24030984 HUGHES WATTERS ASKANASE, L.L.P. Three Allen Center 333 Clay, 29th Floor Houston, Texas 77002 (713) 759-0818 (Telephone) (713) 759-6834 (Facsimile) nmilliron@hwa.com (Email) ATTORNEY FOR APPELLANT Appellant, Residential Credit Solutions, Inc., files this Response tn Opposition to Appellee's Motion for Damages for Frivolous Appeal. Appellee seeks damages for a frivolous appeal based largely on the fact that Appellant did not file a Reply Brief on or before June 17, 2015. However, the rules do not require Appellant to file a Reply Brief. 1 · Appellee also alleges that Appellant delayed this appeal by failing to file a Notice of Appeal with the Court of Appeals, as required by TEx. R. APP. 25(e). Again, there is no such requirement (or rule). The Rules state that, "an appeal is perfected when a written notice of appeal is filed with the trial court clerk. " 2 Service on the Court of Appeals is not required. 3 Appellant has no control over how long the District Clerk's office takes to send the Notice of Appeal on to the Court of Appeals. This is an appeal from a summary judgment. Appellant believes that its Appellant's Brief adequately articulates the facts at issue in this case and is sufficient for the Court to review the trial court's judgment de novo. Appellant's choice to not file a Reply Brief should not be considered a tacit admission that Appellant's appeal is frivolous and Appellant is entitled to have its appeal determined on the merits. 1 See TEX. R. APP. P. 38.3 ("The appellant may file a reply brief addressing any matter in the appellee's brief.) (emphasis added); see also TEX. R. APP. P . .38.6(c) ("A reply brief, if any, must be filed within 20 days after the date the appellee's brief was filed) (emphasis added). 2 TEX. R. APP. P. 25.1(a). Appellant asks this Court to deny Appellee's Motion for Damages for Frivolous Appeal and award Appellant such other and further relief, at law or in equity, to which it may be justly entitled. Respectfully submitted, HUGHES WATTERS ASKANASE, LLP N atha ill iron State Bar No. 24030984 Three Allen Center 333 Clay, 29th Floor Houston, Texas 77002 (713) 759-0818 (Telephone) (713) 759-6834 (Facsimile) nmil~iron@hwa.com (E-mail) ATTORNEY FOR APPELLANT 3 TEX. R. APP. P. 25.1(e) ("The notice of appeal must be served on all parties to the trial court's fmaljudgment or, in an interlocutory appeal, on all parties to the trial court proceeding.") CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant's Response in Opposition to Appellee's Motion for Damages for Frivolous Appeal was served upon all parties and/or their attorneys of record, in accordance with the Texas Rules of Civil Procedure, on this the 101h day of July 2015, addressed as follows: Via Electronic Mail at moconnor@oconnorcraig.com Mr. Michael C. O'Connor O'Connor, Craig, Gould, Evans & Rohr 2500 Tanglewilde, Suite 222 Houston, Texas 77063