in the Matter of the Estate of Hugh Bob Spiller ( 2015 )

ACCEPTED
04-15-00449-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/1/2015 8:12:43 AM
KEITH HOTTLE
CLERK
NO. 04-15-00449-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS
FOURTH JUDICIAL DISTRICT OF TEXAS
09/1/2015 8:12:43 AM
AT SAN ANTONIO KEITH E. HOTTLE
Clerk
IN THE MATTER OF THE ESTATE OF HUGH BOB SPILLER,
DECEASED
On Appeal from the
County Court of Menard County, Texas
Under Cause No. 2013-02059
The Honorable Joe H. Loving, Presiding
REAGAN WILLMAN’S RESPONSE TO MOTION TO DISMISS
Respectfully submitted by:
W. Calloway Huffaker, Attorney at Law, PLLC
By: /s Deborah S. McClure
Deborah S. McClure
Texas Bar No. 18562635
P.O. Box 15125
Amarillo, TX 79105
Tel: (806) 463-5595 | Fax: (806) 998-5328
Email: deborahm@huffaker-law.com
W. Calloway Huffaker
Texas Bar No. 10187800
P.O. Box 968-1540 Avenue J
Tahoka, TX 79373
Tel: (806) 998-4863 | Fax: (806) 998-5328
Email: arlener@huffaker-law.com
TO THE HONORABLE FOURTH COURT OF APPEALS:
Appellant, Reagan Willman (“Willman”) files this response to
Appellee Mary Lee Spiller’s Motion to Dismiss, and respectfully shows the
Court:
1. The central issue on appeal is grounded on the propriety of the
agreements made on the record which were disputed by Willman, and never
reduced to writing signed by Willman. The statement relied upon by
Appellee in moving for dismissal is an integral part of the agreements made
the basis of the appeal. Those agreements were made by Jonathan Cluck,
Willman’s then trial counsel, and were expressly repudiated.
2. The relationship of an attorney to his client is one of agency,
and, as such, is clothed with authority to adopt the procedure and method of
transacting his client’s suit and to act for him in the prosecution or defense
of his legal rights. He has no power to compromise his client’s suit, in the
absence of authority to do so. McMillan v. McMillan, 72 S.W.2d 611, 612
(Tex.Civ.App.-Dallas 1934, no writ).
3. The waiver of the right to appeal was an integral part of the
other agreements entered on the record, and does not stand alone. Those
agreements were entered into by Jonathan Cluck, but were disputed by
Willman in written pleadings (CR 1:789) and through his testimony on May
6, 2015. (RR May 6, 2015 Pre Trial Hearing 2:15-16). These matters are
apparent on the record, and will be fully briefed in Appellant’s Brief.
4. When, as here, the evidence reveals that the attorney did not
have his client’s authority, the agreement will not be enforced. Cleere v.
Blaylock, 605 S.W.2d 294, 296 (Tex.Civ.App.--Dallas 1980, no writ).
5. Appellee has failed in establishing a basis for dismissal of the appeal
without the opportunity to brief the issues. Accord, Payne v. Campbell, 259
S.W.693, 694 (Tex.Civ.App. —Austin 1924, no writ).
6. The Motion to Dismiss has no basis in law or in fact. The motion was
presented to needlessly increase the costs of litigation and delay the
proceedings. Willman has had to incur additional fees and costs to respond
to the Motion to Dismiss, and appellate counsel has had to detract from
preparation of Appellant’s Brief in order to address the motion properly.
7. Willman respectfully requests that the time to file Appellant’s Brief be
abated pending ruling by the Court on the Motion to Dismiss, and that he be
afforded additional time in which to prepare and file Appellant’s Brief.
For all the foregoing reasons, Appellant Reagan Willman respectfully
prays that this Court will abate the proceedings pending the determination of
Appellee Mary Lee Spiller’s Motion to Dismiss, and upon review of the
motion, overrule the Motion to Dismiss, and provide all further relief to
which Appellant shows himself entitled.
Respectfully submitted by:
W. Calloway Huffaker, Attorney at Law, PLLC
By: /s Deborah S. McClure
Deborah S. McClure
Texas Bar No. 18562635
P.O. Box 15125
Amarillo, TX 79105
Tel: (806) 463-5595 | Fax: (806) 998-5328
Email: deborahm@huffaker-law.com
W. Calloway Huffaker
Texas Bar No. 10187800
P.O. Box 968-1540 Avenue J
Tahoka, TX 79373
Tel: (806) 998-4863 | Fax: (806) 998-5328
Email: arlener@huffaker-law.com
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Appellant’s Response to Motion
to Dismiss was served on the identified parties by electronic filing on
September 1, 2015.
Tom Roberson
P.O. Box 25
Menard, Texas 76859
robersonlaw@hotmail.com
Chris Wallendorf
722 Front Street, Suite 101
Comfort, Texas 78013
chrisw7@hctc.net
Richard C. Mosty
C. Dixon Mosty
222 Sidney Baker, Suite 400
Kerrville, Texas 78028
rmosty@mostylaw.com
cdmosty@mostylaw.com
Mark Marshall
marshall-law@verizon.net