in the Matter of the Estate of Ruby Renee Byrom ( 2015 )

ACCEPTED
12-15-00033-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/30/2015 3:34:50 PM
CATHY LUSK
CLERK
IN THE COURT OF APPEALS
FILED IN
FOR THE TWELFTH APPELLATE DISTRICT OF TEXAS
12th COURT OF APPEALS
TYLER, TEXAS
TYLER, TEXAS 7/30/2015 3:34:50 PM
CATHY S. LUSK
Clerk
§
§
IN THE MATTER OF THE ESTATE §
OF RUBY RENEE BYROM § CAUSE NO. 12-15-00033-CV
§
§
§
MOTION TO STRIKE APPELLANT’S BRIEF EXHIBITS G AND H
NOW COMES JILL CAMPBELL PENN in the above styled and numbered
cause, and files this motion for the Court to strike Appellant’s Brief Exhibits G and
H and shows the following:
I.
The Decree Ordering the Sale of Real Property was entered on November 14,
2014. Appeal was perfected on February 2, 2015. Appellant’s Brief was filed on
May 18, 2015. Appellant’s Brief Exhibit G is an affidavit executed by Appellant
Dimple Byrom on March 1, 2010 (and is attached hereto as Exhibit 1). Appellant’s
Brief Exhibit H is an affidavit executed by Appellant Jerry Byrom on May 7, 2015
(and is attached hereto as Exhibit 2).
Page 1 of 3
II.
There is no indication that these affidavits were ever a part of the record of
this case or in any way presented to the trial court. Dimple Byrom’s affidavit
(Appellant’s brief, Exhibit G) has a file mark on it from the county clerk of
Cherokee County but it does not indicate if it was filed in the deed records or in a
court record. Regardless, this appeal stems from a district court case so it would
seem likely that if presented to the trial court in this case it would have a district
court file mark. It is not in the clerk’s record from this case that is filed with this
court.
In addition, Appellant has attempted to interject evidence in this case
without notifying this court or opposing counsel. There is no indication that he
attempted to supplement the record under T.R.A.P 34(c). Even had he done so,
these affidavits could not become part of the record as they were not presented to
the district court. This wrongful act is multiplied when you see that the date of
Appellant’s affidavit (Appellant’s brief, Exhibit H) is May 7, 2015 which is almost
six months after the Decree Ordering the Sale of Real Property was entered on
November 14, 2014 and could not possibly be part of the record. In addition, as
more fully explained in Appellee’s brief, it appears that Jerry Byrom perjures
himself in the affidavit as it is contrary to sworn testimony he gave in the prior
Page 2 of 3
cases and in this case.
WHEREFORE, PREMISES CONSIDERED, Jill Campbell Penn prays
that the Court strike Appellant’s Brief Exhibit G and Exhibit H.
Respectfully submitted,
Joseph F. Zellmer
620 West Hickory Street
Denton, Texas 76201
Telephone: (940) 383-2674
Fax: (940) 382-7174
Email: jfz@zellmerlaw.com
/s/ Joseph F. Zellmer
By:___________________________
Joseph F. Zellmer
State Bar No. 22258515
Lead Counsel for Jill Campbell Penn
CERTIFICATE OF SERVICE
I hereby certify that on this the 30th day of July, 2015, a true and correct
copy of the above and foregoing Motion to Strike Appellant’s Brief Exhibits G
and H was served on Joe Shumate, by eservice or email.
/s/ Joseph F. Zellmer
______________________________
Joseph F. Zellmer
Page 3 of 3
EXHffiiTl
.. AmDAVIT
STATB OP TEXAS I
§ KNOW AU. MBN·BYTHBSB PRESENTS:
COUNTY OF RUSK §
BEFORE MB, tho undersigaed notaJy public, pmonally appeared the penon whoseuamo
is subscribed herembelow, and after beiDa duly swom, deposed and stat«< as follows:
"My name 11 Daisy D. Byrom, a/1da Dimple Byrom, and I am the wife of
Jerry Byrom. I am over the age of 18 years, havo nover beca. CODVicted of a felony,
azul 8111 competeat to mab this aftidavit. .
IerryByromandlwezemarriedon the26thdayof1uly, 1971, in Henderson
County, Teus. Webaveneverbeea clivolcecL In1anuaryofl986_ wepurcbased1he
two tracts or perceJs of land in Rusk County, Teas, totaJins 120 acres, which. are
described on Bxhibit •A" attached~ and :refeuecl to hen1n u "tho propc:rty."
At the time we puiQbasaJ the prvpcrty, it was aot our honlestcad; howovcr,
em or about March of2006, we OOJIIfmctlld a homo Oil the property and at that time
it bec:ame our bomestead. This was befcnmyhusband received anyproperty fi'om
Jus mother's estate. A true ad cor.roet copy oftb.e OODtract with the buD.dcr is
attached hereto as Exhibit CC})." Wo haw Jived on the p10pcrty since 2006 and live
t'hero now with 1bur miDor graadchi1clreD.
Otbcrtlum the original pianUsemoceyand constractloDHcasontheproperty
ad a aote from the bank iD wlnch 1b ptapaty was vscd as aecurity (whioh was
released in April of 2002 prior to building oar homo}t I have never allowed the
propertyio be subject to my liens or JUdamcat.
Ihaebyassertanyrigbtlbavotoob.JecttoaJI)'exectltionofjudgmmtorlieDs
apiust my homestead pmpedy aD4 tho homestead property of my mmor
SfiiDdc;hild:re, .
. . -- ., ______ ______
...:...__
SUBSCRIBED AND SWORN TO BEFORE ME on this tho / ~ day of
,,- ~ (Y\.g..b •2010, by Daisy D. Byrom. al'da Dimple B)'l'OJD.
li~L8B
at IZ, .o'cfoe"-f'M.
tfAR G9 LUtO
LAVERNE LUSt<
CI.ERX, cautm' COURT CHEROKEE CO. tX
., JJ .,.,
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EXHffiiT2
AFFIDAVIT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF RUSK §
BEFORE ME, the undersigned notary public, personally appeared the person whose name
is subscribed hereinbelow, and after being duly sworn, deposed and stated as follows:
"My name is Jerry Byrom, and I am the husband ofDaisy D. Byrom, a!k/a
Dimple Byrom. 1am over the age of 18 years, have never been convicted of a felony,
and am competent to make this affidavit.
Daisy D. Byrom, a!k/a Dimple Byrom and I were married on the 26th day of
July, 1971, in Henderson County, Texas. We have never been divorced. In January
of 1986, we purchased the two tracts or parcels of land in Rusk County, Texas,
totaling 120 acres referred to herein as "theproperty."
At the time we purchased the property, it was not our homestead; however,
on or about March of2006, we constructed a home on the property and at that time
it became our homestead. This was before I received any property from my mother's
estate. We have lived on the property since 2006 and live there now with two minor
grandchildren.
Other than the original purchase money and construction liens on the property
and a note from the bank in which the property was used as security (which was
released in April of 2002 prior to building our home, I have never allowed the
property to be subject to any liens or judgment.
I hereby assert any right I have to objectto any execution ofjudgment or liens
against my homestead property and the homestead property of my minor
grandchildren."
SUBSCRIBED AND SWORN TO BEFORE ME on this the 7' 11 dayofMay, 2015, by Jerry
Byrom.
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