Residential Credit Solutions, Inc. v. Martha Burg ( 2015 )

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