in Re Ernest Ray Koonce

ACCEPTED
01-15-00440-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/23/2015 10:55:16 AM
CHRISTOPHER PRINE
CLERK

01-15-00440-CV
_______________ FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE 10/23/2015 10:55:16 AM
FIRST COURT OF APPEALS CHRISTOPHER A. PRINE
Clerk
_______________

IN RE ERNEST RAY KOONCE
Relator.
______________

On Petition for Writ of Mandamus
from the
127th Judicial District Court
Harris County, Texas
Cause Number 2010-64752
_____________

WELLS FARGO, AS TRUSTEE’S MOTION TO STRIKE RELATOR’S
SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS
_______________

BOBBIE L. STRATTON
BRADLEY E. CHAMBERS
VALERIE HENDERSON

Baker Donelson Bearman Caldwell & Berkowitz, P.C.
1301 McKinney Street, Suite 3700
Houston, Texas 77010
Telephone: (713) 650-9700
Facsimile: (713) 650-9701

ATTORNEYS FOR WELLS FARGO BANK, N.A., AS TRUSTEE UNDER THE
POOLING AND SERVICING AGREEMENT DATED AS OF APRIL 1, 2005, ASSET
BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-WHQ2
TO THE HONORABLE COURT OF APPEALS:

Wells Fargo Bank, N.A., as Trustee Under the Pooling and Servicing

Agreement Dated as of April 1, 2005, Asset Back Pass-Through Certificates,

Series 2005-WHQ2 (“Wells Fargo, as Trustee”) files this motion to strike Ernest

R. Koonce’s (“Koonce”) Supplemental Petition for Writ of Mandamus and

respectfully shows the Court as follows:

I. INTRODUCTION

Koonce filed a Petition for Writ of Mandamus on May 12, 2015, seeking

review of the trial court’s order granting Wells Fargo, as Trustee’s motion for new

trial. Wells Fargo, as Trustee filed its response to the petition for writ of

mandamus on July 13, 2015. On September 7, 2015, Koonce filed a Supplemental

Petition for Writ of Mandamus, without seeking leave to do so, which raises

numerous issues that Koonce never raised in the trial court, and, therefore, have

never been addressed by the trial court. Additionally, the “record” included with

Koonce’s Supplemental Petition for Writ of Mandamus contains numerous

documents that were not a part of the record in the trial court and were apparently

created by Koonce and a person with no connection to this case, Christine Reule,

for the sole purpose of supporting Koonce’s Supplemental Petition for Writ of

Mandamus.

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 The Court should strike Koonce’s Supplemental Petition for Writ of

Mandamus and all purported evidence attached thereto for the following reasons:

1. Koonce failed to seek leave to supplement his original petition for
writ of mandamus.

2. Issues A-D are not appropriate for mandamus review because
these issues have not been raised or addressed in the trial court.

3. Koonce has provided no explanation for why he allegedly needs to
supplement his prior briefing on Issue E, which has already been
fully briefed by the parties.

II. ARGUMENT & AUTHORITIES

A. Koonce failed to seek leave to supplement his original petition for writ
of mandamus.

First, Koonce failed to seek leave to supplement his original petition for writ

of mandamus; therefore, the Court should strike Koonce’s supplement in its

entirety. “[N]ew or additional issues raised in a reply brief or post-submission

brief are untimely and will not be considered absent express permission from the

appellate court allowing the new or additional issues.” Black v. Shor, 443 S.W.3d

170, 174 (Tex. App.—Corpus Christi 2013, no pet.) (citing Collin Cnty. v. Hixon

Family P'ship, Ltd., 365 S.W.3d 860, 877 (Tex. App.—Dallas 2012, pet. denied);

Rogers v. City of Fort Worth, 89 S.W.3d 265, 284 (Tex. App.—Fort Worth 2002,

no pet.); Haynes v. McIntosh, 776 S.W.2d 784, 788 (Tex. App.—Corpus Christi

1989, writ denied)). Additionally, the Court may “not consider attachments to

briefs that were not part of the trial court record and are not formally included in

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the appellate record.” Id. (citing Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex.

2001); In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.—Dallas

2012, no pet.); Paselk v. Rabun, 293 S.W.3d 600, 612 n. 12 (Tex. App.—

Texarkana 2009, pet. denied); WorldPeace v. Comm'n for Lawyer Discipline, 183

S.W.3d 451, 465 n. 23 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)).

Koonce failed to request leave to supplement his original petition for writ of

mandamus, and he failed to set forth any reason why he failed to raise these new

issues in his original petition for writ of mandamus that he filed months ago. The

new issues Koonce has raised in his supplemental petition for writ of mandamus

are untimely, and the Court has not given Koonce permission to file the

supplemental petition. Therefore, the Court should strike Koonce’s supplemental

petition for writ of mandamus and the “record” attached thereto in its entirety.

B. Issues A-D are not appropriate for mandamus review because these
issues have not been raised or addressed in the trial court.

Second, issues A-D have not been raised or addressed by the trial court and

are, therefore, not appropriate for mandamus review. “To obtain mandamus relief,

relators must show both that the trial court has clearly abused its discretion and

that they have no adequate appellate remedy.” In re Greyhound Lines, Inc., No.

05-13-01646-CV, 2014 WL 1022329, at *3 (Tex. App.—Dallas Feb. 21, 2014, no

pet. h.) (citing In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004)

(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.

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proceeding)) (emphasis added). Koonce does not cite to anything in the record to

support Issues A-D found in his supplemental petition for mandamus relief. This

is likely for the simple reason that he never raised Issues A-D in any motion or

pleading before the trial court and, therefore, the issues have never been addressed

by the trial court. It is impossible for the trial court to have “clearly abused its

discretion” on these issues when it has not even had a chance to consider them.

Koonce also fails to demonstrate how the issues he raises in his

Supplemental Petition for Writ of Mandamus are purportedly related in any way to

the trial court’s order on Wells Fargo, as Trustee’s motion for new trial, which is

the order upon which Koonce’s original petition for writ of mandamus is based.

Further, the “record” attached to Koonce’s supplemental petition for

mandamus relief is nothing more than a conglomeration of documents that were

not part of the trial court’s record in this matter, and should not be considered by

the Court. It is “improper for parties to rely on matters outside the record in

making arguments to the court.” Carlton v. Trinity Universal Ins. Co., 32 S.W.3d

454 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing Melendez v.

Exxon Corp., 998 S.W.2d 266, 280 (Tex. App.—Houston [14th Dist.] 1999, no

pet.) (holding parties are to confine their arguments and factual recitations to

matters contained in the record)). For these reasons, Issues A-D are not

appropriate for mandamus review and the Court should strike Koonce’s

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supplemental petition for mandamus review because the trial court has not

reviewed the issues raised therein.

C. Koonce has provided no explanation for why he allegedly needs to
supplement his prior briefing on Issue E, which has already been fully
briefed by the parties.

Finally, Koonce previously raised Issue E in his original petition, but in this

supplemental petition, he further supplements the issues, which is procedurally

inappropriate and not warranted when the issue was fully briefed by the parties. In

Issue E, Koonce asks whether Wells Fargo, as Trustee is “barred from asserting

that the note and deed of trust were not accelerated until September 2010.”

Koonce raised this issue in his original petition for writ of mandamus, and argued

that Wells Fargo, as Trustee accelerated the loan in 2006, and, therefore, Wells

Fargo, as Trustee’s counterclaim for judicial foreclosure was barred by the

applicable statute of limitations. As Wells Fargo, as Trustee argued in its response

to Koonce’s petition for writ of mandamus, Koonce’s argument that the loan at

issue was accelerated in 2006 was already specifically addressed in another lawsuit

between the parties, and is, therefore, barred by res judicata. Koonce once again

raises this issue that has already been decided in another case, and Koonce fails to

present any reason why he needs to supplement his briefing on this issue at this

time. For the reasons set forth in Wells Fargo, as Trustee’s response to Koonce’s

petition for writ of mandamus, Koonce’s argument on this issue is wholly without

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merit, and there is absolutely no need for further briefing from Koonce on this

issue.

PRAYER
For these reasons, Wells Fargo, as Trustee respectfully asks the Court to

strike Koonce’s Supplemental Petition for Writ of Mandamus in its entirety, and to

grant any other relief to which Wells Fargo, as Trustee may be justly entitled.1

Respectfully submitted,

/s/ Valerie Henderson
BOBBIE L. STRATTON
Texas State Bar No. 24051394
BRADLEY E. CHAMBERS
Texas State Bar No. 24001860
VALERIE HENDERSON
Texas State Bar No. 24078655
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, PC
1301 McKinney, Suite 3700
Houston, Texas 77010
Telephone: (713) 650-9700
Facsimile: (713) 650-9701

ATTORNEYS FOR WELLS FARGO BANK,
N.A., AS TRUSTEE UNDER THE POOLING
AND SERVICING AGREEMENT DATED AS
OF APRIL 1, 2005, ASSET BACK PASS-
THROUGH CERTIFICATES, SERIES 2005-
WHQ2

1
Alternatively, if the Court denies Wells Fargo, as Trustee’s motion to strike, Wells Fargo, as
Trustee respectfully requests leave to file a brief responding to the substantive issues raised in
Koonce’s Supplemental Petition for Writ of Mandamus.

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 CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of October, 2015, a true and correct
copy of the foregoing was sent by electronic mail as allowed by Texas e-file, as
follows:

Mr. Ernest Ray Koonce rayk469@gmail.com
15938 Fleetwood Oaks Drive
Houston, Texas 77079

/s/ Valerie Henderson
Valerie Henderson

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