Charles G. Shook v. Rick Hall and Tommy Yocham, Individually and Derivatively on Behalf of Flare Well Testers, Inc. ( 2015 )

ACCEPTED
14-15-00534-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/24/2015 11:02:04 AM
CHRISTOPHER PRINE
CLERK
No. 14-15-00534-CV
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS FOR THE 6/24/2015 11:02:04 AM
FOURTEENTH DISTRICT OF TEXAS CHRISTOPHER A. PRINE
Clerk
CHARLES G. SHOOK,
Appellant,
vs.
RICK HALL and TOMMY YOCHAM, Individually
and Derivatively on Behalf of Flare Well Testers, Inc.,
Appellees.
On Interlocutory Appeal from the 127th Judicial District Court
of Harris County, Texas, Hon. R.K. Sandill, Presiding
Trial Court Cause Number 2015-28269
APPELLANT CHARLES G. SHOOK’S SUR-REPLY IN SUPPORT OF EMERGENCY
RESPONSE AND REQUEST FOR MORE TIME TO RESPOND TO APPELLEES’
EMERGENCY MOTION FOR CONTEMPT AND TO REFER CONTEMPT
PROCEEDINGS TO TRIAL COURT
MCCATHERN, P.L.L.C. STOGER LAW FIRM
Rodney L. Drinnon Jonathan S. Stoger
Texas Bar No. 24047841 Texas Bar No. 00797504
rdrinnon@mccathernlaw.com jstoger@stogerlaw.com
Nicholas Zugaro 2301 Morse
Texas Bar No. 24070905 Houston, Texas 77019
nzugaro@mccathernlaw.com Tel: (713) 522-2848
2000 W. Loop South, Suite 2100 Fax: (713) 522-1120
Houston, Texas 77027
Tel: (832) 533-8689
Fax: (832) 213-4842
Counsel for Appellant and Accused Contemnor Charles G. Shook
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellant and Accused Contemnor, Charles G. Shook, files this sur-reply in
support of his initial, emergency response to Appellees, Rick Hall and Tommy
Yocham, Individually and Derivatively on Behalf of Flare Well Testers, Inc.’s,
Emergency Motion for Contempt and Request to Refer Contempt Proceedings to the
District Court.
I. Request for Time to Fully Respond to Motion
There is no compelling reason for Appellees to seek emergency relief. A
charge of contempt is quasi-criminal in nature and subjects the contemnor to the very
real possibility of incarceration. A contemnor has a due process right under the
United States and Texas Constitutions to notice and an opportunity to be heard and
an adequate time to respond. See Ex parte Johnson, 654 S.W.2d 415, 420 (Tex.
1983); Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1995). The undersigned have
represented clients in contempt proceedings before and have yet to participate in a
case, other than this one, where contempt was sought on an emergent basis. The
underlying facts and circumstances concerning the contempt charge will not change
if Appellant is given sufficient time to respond, and he asks for at least the ten-day
period under TEX. R. APP. P. 10.3(a) to respond to appellate motions.
II. Filing Emergency Motions is Appellees’ Calculated Strategy
Throughout the District Court proceedings, Appellees have filed nearly every
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motion on an emergency basis, as they do here. This has the effect of depriving
Appellant of a full opportunity to brief the issues and respond. Appellees’ emergency
motion here was filed at 9:06 a.m. on Monday, June 22, 2015, at a time when
Appellant’s counsel were working on other matters. Because the motion was filed
on an emergency basis, counsel had to put aside important work for other clients,
that was also subject to pressing deadlines, to attempt to draft a response. To show
the Court that a response would be forthcoming, counsel filed an initial, emergent
response and requested the normal ten days to file a complete response. To fully
respond and represent their client’s interests, the undersigned need time to research
the legal issues and meet with their client.
III. Appellant Strongly Denies Appellees’ Contempt Charges
Appellees misrepresent Appellants’ position in suggesting that he admits to
the charges of contempt. Appellant strongly denies the charges lodged against him.
Despite Appellees’ characterization of the facts, the District Court has never found
him in contempt of court. No contempt citation has ever been entered against him.
Appellant strongly denies that he violated the terms of the Temporary
Injunction Order and would, if required, mount a defense that any funds transferred
were from a different company than the one in the Temporary Injunction Order.
At this point, Appellant should not be required to put on his entire defense to
respond to Appellees’ emergency motion. He should be entitled to at least ten days
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to respond to the motion.
IV. The District Court Proceeded Forward on Contempt Without Jurisdiction
It stands undisputed by Appellees that the District Court proceeded forward
with their contempt motion without any jurisdiction to do so. The District Court did
not care about the lack of jurisdiction and encouraged Appellant to file a writ of
mandamus if he was unhappy. A three-hour contempt hearing, in the absence of
jurisdiction, then went forward over Appellant’s objection.
V. Judicial Economy Would Best Be Served by Maintaining Jurisdiction
One of the issues Appellant intends to raise in the instant interlocutory appeal
and in response to contempt is that the underlying Temporary Injunction Order is
void. A party cannot be held in contempt for violating a void order. Ex parte Shaffer,
649 S.W.2d 300, 301-02 (Tex. 1983). Despite Appellees’ disparagement of the
“Great Writ” of Habeas Corpus, it is the device used to challenge unlawful contempt
citations, include those based on a void order. See id. By maintaining jurisdiction
over the contempt proceeding, either directly or by making only a limited referral to
the District Court for findings and recommendations, see TEX. R. APP. P. 29.4(b),
this Court can consider voidness in both the interlocutory appeal and the contempt
proceeding, and it would prevent the necessity of filing a habeas corpus petition.
Appellant intends to raise numerous voidness arguments. Some errors will
only be apparent from the reporter’s record. Errors apparent on the face of the record
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include that Appellees did not secure a Writ of Injunction from the District Clerk
after the Temporary Injunction Order was signed, or serve the non-existent Writ on
Appellant. See Docket Sheet, Ex. 1 (no Writ of Injunction appears and no return of
service for a Writ appears); see also TEX. R. CIV. P. 687 - “Requisites of Writ” (the
Writ of Injunction must be prepared by the clerk and include the clerk’s signature
and seal); TEX. R. CIV. P. 688 - “Clerk to Issue Writ” (“When the petition, order of
the judge and bond have been filed, the clerk shall issue the temporary restraining
order or temporary injunction, as the case may be, in conformity with the terms of
the order, and deliver the same to the sheriff or any constable….”); TEX. R. CIV. P.
689 – “Service & Return” (“The officer receiving a writ of injunction shall indorse
thereon the date of its receipt by him, and shall forthwith exercise the same by
delivering to the party enjoined a true copy thereof. The officer must complete and
file a return in accordance with Rule 107.”).
There are many other errors with the Temporary Injunction Order and
proceeding, but at this point, Appellant should not be required to mount his entire
defense on an emergency basis and asks for at least ten days to prepare his response.
PRAYER
For these reasons, Appellant and Alleged Contemnor, Charles G. Shook,
continues to pray that the Court set a reasonable time to respond to Appellees, Rick
Hall and Tommy Yocham, Individually and Derivatively on Behalf of Flare Well
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Testers, Inc.’s, emergency motions for contempt and to refer contempt proceedings
to the District Court, that the Court deny the motions in all things, and that Appellant
be granted any further he is entitled to, including court costs.
Respectfully submitted,
/s/ Rodney L. Drinnon /s/ Jonathan S. Stoger
Rodney L. Drinnon Jonathan S. Stoger
Texas Bar No. 24047841 Texas Bar No. 00797504
rdrinnon@mccathernlaw.com jstoger@stogerlaw.com
Nicholas Zugaro Stoger Law Firm
Texas Bar No. 24070905 2301 Morse
nzugaro@mccathernlaw.com Houston, Texas 77019
McCathern, P.L.L.C. Tel: (713) 522-2848
2000 W. Loop South, Suite 2100 Fax: (713) 522-1120
Houston, Texas 77027
Tel: (832) 533-8689
Fax: (832) 213-4842
Attorneys for Appellant and
Alleged Contemnor Charles G. Shook
CERTIFICATE OF COMPLIANCE
I certify under TEX. R. APP. P. 9.4 that this Response, excluding those
portions that do not count towards the total limit, contains 1,065 words, as measured
by the word count feature in Microsoft Word 2013. The font used is Times New
Roman, 14-Point for the main text, and Time New Roman, 12-Point for the footnote
text.
/s/ Rodney L. Drinnon
Rodney L. Drinnon
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CERTIFICATE OF SERVICE
I certify that on June 24, 2015, I served a true and correct copy of this Sur-
Reply on all counsel of record, as reflected below, via e-service through
efile.txcourts.gov.
/s/ Rodney L. Drinnon
Rodney L. Drinnon
Ashish Mahendru
amahendru@thelitigationgroup.com
Darren A. Braun
dbraun@thelitigationgroup.com
Mahendru, P.C.
639 Heights Boulevard
Houston, Texas 77007
Attorneys for Appellees
Rick Hall and Tommy Yocham,
Individually and Derivatively on Behalf
of Flare Well Testers, Inc.
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