Charles Mandeville v. Deborah Mandeville ( 2015 )


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  •        No. 01-15-00119-CV
    In the                       FILED IN
    1st COURT OF APPEALS
    Court of Appeals                 HOUSTON, TEXAS
    for the                5/14/2015 5:16:26 PM
    First Judicial District of Texas    CHRISTOPHER A. PRINE
    Houston, Texas                      Clerk
    ___________________
    387th Judicial District Court
    Fort Bend County, Texas
    Cause No. 14-DCV-211809
    ___________________
    CHARLES MANDEVILLE, V
    Appellant
    DEBORAH MANDEVILLE
    Appellee
    ___________________
    APPELLEE’S REPLY BRIEF
    Vicki L. Pinak
    State Bar No. 16011357
    12946 S. Dairy Ashford Rd. Suite 400
    Sugar Land, TX 77478
    Tel:281-240-2355;Fax:281- 240-2354
    e-mail: Pinak@texadr.com
    Attorney for Appellee
    ORAL ARGUMENT NOT REQUESTED
    1
    IDENTITY OF INTERESTED PARTIES
    Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete
    list of the names of all interested parties is provided below:
    Appellee:           Deborah Crowley previously known as Deborah Mandeville
    Counsel
    for Appellee:       Vicki L. Pinak
    Appellant:          Charles Mandeville, V Pro se
    Trial Court:        Hon. Brenda Mullinix
    387th Judicial District Court
    Fort Bend County, Texas
    2
    TABLE OF CONTENTS
    Statement Regarding Oral Argument …………………………………………..1
    Identification of the Parties ……………………………………………………...2
    Table of Contents …………………………………………………………………3
    Table of Authorities ………………………………………………………………4
    Statement of the Case …………………………………………………………….5
    Statement of Facts …………………………………………………………..........6
    Summary of the Arguments ……………………………………………………...7
    Reply to Appellant’s first point of error …………………………...….…...8 - 14
    Reply to Appellant’s second point of error………………………….…….14 - 17
    Prayer ……………………………………………………………………………17
    Certificate of Compliance ………………………………………………………18
    Certificate of Service ……………………………………………………………18
    3
    TABLE OF AUTHORITIES
    BNSF Railway Co. v. Phillips, No. 02-11—00250-CV, 
    2013 WL 3947820
    , *17
    (Tex. App—Ft. Worth Aug. 1, 2013, no pet.) ……………………………...9
    Cornejo v. Jones,   (Tex. App.—Dallas 2014, orig. proceeding) ………..….10, 11
    In re CH.E., 05-97-0005-CV, 
    1999 WL 498576
    (Tex. App.—Dallas
    July 15, 1999, no pet.) ……………………………………………................8
    In re Marriage of Jeffries, 
    144 S.W.3d 63
    , (Tex. App.—Texarkana,
    [6th Dist.] 2004) …………………………………………………………...17
    In re Staff Care, Inc., 
    422 S.W.3d 876
    , 883 (Tex. App.—Dallas 2014,
    orig. proceeding) ……………………………………………..……10, 12, 13
    In re Toyota Motor Sales, U.S.A., Inc., 
    407 S.W.3d 746
    , 760 (Tex. 2013) ………. 8
    Leithold v Plass, 
    413 S.W.2d 698
    (Tex. 1967) ………………………………...…17
    MacCallum v MacCallum, 
    8001 S.W.2d 579
    , 582 (Tex. App.—Corpus
    Christi [13th Dist.] 1990, writ denied) ……………………………………..17
    Malone v. Foster, 
    956 S.W.2d 573
    , 578 (Tex. App.—Dallas 1997) ………………9
    Messier v. Messier, 
    389 S.W.3d 904
    , (Ct. of App.—Houston [14th Dist.] 2012) ..17
    Roberson v. Robinson, 
    768 S.W.2d 280
    , 281 (Tex. 1989) ……………………….15
    Sw. County Enter., Inc. v. Lucky Lady Oil Co., 
    991 S.W.2d 490
    , 493-94
    (Tex. App--Fr. Worth 1999, pet. denied) …………………………………...9
    Wild Rose -4- Rescue Ranch v. City of Whitehouse, 
    373 S.W.3d 211
    , 217-18 (Tex.
    App.—Tyler 2012, no pet.) ………………………..………………………..9
    Worford v Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990) ………………………..…15
    T.R.C.P Rule 90 ………………………………………………………………….15
    T.R.C.P Rule 193.6 ……………………………………………………..........9 – 13
    4
    STATEMENT OF THE CASE
    The affirmative pleadings at the time of trial were Appellee’s Second
    Amended Petition for Divorce. (CR at 123) and Appellant’s Original Counter-
    Petition for Divorce. (CR at 30) Appellant represented himself. Appellant left the
    jury trial before the first witness completed her testimony refused to participate in
    the trial, and did not return. (RR Excerpt of Jury Trial at 9-14) The Appellant did
    not present any evidence or cross-examine any witnesses at trial. The trial court
    entered a final decree of divorce on November 12, 2014. (CR at 377)
    5
    STATEMENT OF FACTS
    Appellee filed for divorce in the 387th Judicial District Court of Fort
    Bend County, Texas.      (CR at 9) There are five (5) children born during the
    marriage. The parties live more than 100 miles from each other. The mother and
    children reside in Fort Bend County, Texas and the father resides in Oklahoma.
    (RR Vol. 2 at 4) The mother requested the father be supervised during his periods
    of possession. (CR at 123) The father was diagnosed with Paranoid Personality
    Disorder. (RR Vol. 2 at 49) After the parties separated and after the children
    visited their father, the children would come home afraid to go outside when the
    sun went down, out of fear of being killed or raped. (RR Vol. 2 at 40)          The
    children were filled with the belief from the father that the world was going to end
    and everything was doomed. (RR Excerpt of Testimony at 12)             The father’s
    hatred was emotionally harming the children. (RR Excerpt of Testimony at 6) The
    father’s anger over time escalated and intensified, when it should have dissipated.
    (RR Excerpt of Testimony at 7)
    There trial court held a pretrial hearing and granted a motion in limine.
    (CR at 337) The Appellant left the trial, did not present any evidence, and did not
    return. (RR Excerpt of Jury Trial 9 - 14)
    6
    SUMMARY OF THE ARGUMENTS
    Appellant is not entitled to the requested relief because the granting of
    the motion in limine is not a ruling on the evidence and Appellant did not preserve
    any right to complain. Appellant left the trial and did not present any evidence.
    The trial court has very broad discretion in determining the best interest
    of the children in family law matters. The best interest of the children is the
    primary consideration of the court in determining issues relating to possession of
    and access to the children. The pleadings and evidence support the ruling by the
    trial court.
    7
    REPLY TO APPELLANT’S FIRST POINT OF ERROR
    1. The Trial Court did not abuse its discretion by granting the motion
    in limine.
    In Appellant’s first point he complains the trial court abused its discretion by
    granting a motion in limine and ruling that appellant “shall not mention or refer to
    a specific item, bank account as being his separate property as Charles Mandeville,
    V, failed to respond to the interrogatory request requiring him to identify and state
    the value of each item he claims is his separate property.” (RR pretrial at 98 - 103)
    Appellant admitted he did not answer the interrogatory request sent to
    him. (RR pretrial at 101) This interrogatory request required Appellant to identify
    and state the value of each item he claimed to be his separate property. (RR pretrial
    pet. Ex. 1) Appellant was provided additional notice of the requirement to respond
    to the interrogatory request. (RR Pretrial at 98-99 and 105 pet. Ex. 2) After
    Appellant admitted he did not answer the interrogatory request, he claimed the
    reason was because he did not want to put the cart before the horse. (RR pretrial at
    101 – 103)
    A trial court’s granting, or denial, of a motion in limine does not preserve
    error. In re Toyota Motor Sales, U.S.A., Inc., 
    407 S.W.3d 746
    , 760 (Tex. 2013); In
    re CH.E., 05-97-00055-CV, 
    1999 WL 498576
    (Tex. App.—Dallas July 15, 1999,
    no pet.) To complain on appeal that the trial court erroneously excluded evidence,
    the appellant must have offered the evidence during trial and obtained an adverse
    8
    ruling from the trial court. Malone v. Foster, 
    956 S.W.2d 573
    , 578 (Tex. App.—
    Dallas 1997), aff’d, 
    977 S.W.2d 562
    (Tex. 1998). To preserve error during trial the
    party must comply with the following: (1) approach the bench and ask for a ruling;
    (2) formally offer the evidence; and (3) obtain a ruling on the offer. BNSF Railway
    Co. v. Phillips, No. 02-11--00250-CV, 
    2013 WL 3947820
    , *17 (Tex. App—Ft.
    Worth Aug. 1, 2013, no pet.); Wild Rose –4– Rescue Ranch v. City of Whitehouse,
    
    373 S.W.3d 211
    , 217-18 (Tex. App.—Tyler 2012, no pet.) If at that time, the court
    rules the evidence inadmissible after it is offered, the party must further preserve
    the evidence through an offer of proof. See Sw. County Enter., Inc. v. Lucky Lady
    Oil Co., 
    991 S.W.2d 490
    , 493–94 (Tex. App—Ft. Worth 1999, pet. denied). An
    offer of proof requires a party, subsequent to a ruling excluding evidence, to show
    the substance of the evidence excluded. 
    Id. at 494.
    Appellant did not offer any evidence. In fact, the Appellant became so
    angry during day two of the trial that he left the courtroom and never returned.
    (RR Excerpt of Jury Trial at 9-14) Appellant did not preserve error and has no
    right to complain now when he did not even attempt to enter evidence.
    Appellant further complains of the trial court’s ruling on the motion in
    limine for failure to respond to an interrogatory as being an abusive sanction when
    there was no prior motion to compel a discovery response. Rule 193.6 of the Texas
    9
    Rules of Civil Procedure requires automatic exclusion of evidence for failure to
    respond to discovery unless an exception applies. The Rule states, in part:
    193.6 Failing to Timely Respond - Effect on Trial
    (a) Exclusion of evidence and exceptions. A party who fails to make,
    amend, or supplement a discovery response in a timely manner may
    not introduce in evidence the material or information that was not
    timely disclosed, or offer the testimony of a witness (other than a
    named party) who was not timely identified, unless the court finds
    that:
    (1) there was good cause for the failure to timely make, amend, or
    supplement the discovery response; or
    (2) the failure to timely make, amend, or supplement the discovery
    response will not unfairly surprise or unfairly prejudice the other
    parties.
    (b) Burden of establishing exception. The burden of establishing good
    cause or the lack of unfair surprise or unfair prejudice is on the party
    seeking to introduce the evidence or call the witness. A finding of
    good cause or of the lack of unfair surprise or unfair prejudice must
    be supported by the record.
    T.R.C.P. Rule 193.6
    The rule requires the evidence to be “automatically inadmissible” at trial,
    unless that party (i) establishes good cause for failing or waiting to respond or (ii)
    proves lack of unfair surprise or unfair prejudice. If neither exception is
    established, the trial court has “no discretion”; it must exclude the undisclosed
    evidence. Cornejo v. Jones, No. 05-12-01256-CV, 
    2014 WL 316607
    , at *2 (Tex.
    App.-Dallas Jan. 29, 2014, orig. proceeding); In re Staff Care, Inc., 
    422 S.W.3d 876
    , 883 (Tex. App.--Dallas 2014, orig. proceeding).
    10
    In Cornejo, the Court reversed a judgment for defendant that was entered on
    a jury verdict because the trial court had allowed that defendant to testify even
    though he had not answered contention interrogatories. In Cornejo, an automobile
    collision case, Cornejo sued Jones. Shortly after Jones answered, Cornejo served
    him with contention interrogatories asking, among other things, for Jones’s version
    of what caused the collision. Just before trial began, Cornejo objected to Jones’s
    testifying because Jones had never answered the contention interrogatories. When
    Cornejo conceded he had never sought to compel answers, the trial court overruled
    the objection and allowed Jones to testify. Ultimately, the jury returned a verdict
    for Jones. The Court of Appeals reversed, finding that the trial court should have
    excluded Jones’s testimony under TEX. R. CIV. P. 193.6(a) because Jones had
    ignored the contention interrogatories.
    The Court explained that although “[r]ulings on the admissibility of
    evidence generally are reviewed on appeal for abuse of discretion,” under Rule
    193.6 “the trial court possesses no discretion.” The evidence must be excluded
    unless the delinquent party carries its burden under Rule 193.6(b) to establish good
    cause for nondisclosure or lack of unfair surprise or prejudice if the evidence is
    admitted. Jones did not argue or present evidence that any of the Rule 193.6(b)
    exceptions applied. The Court rejected Jones’s various arguments that Cornejo had
    11
    not preserved error. A party is not required to file a motion to compel discovery in
    order to secure the automatic sanctions of Rule 193.6(a).
    In re Staff Care was a mandamus proceeding involving a number of
    discovery and evidentiary rulings. One issue dealt with the decision striking all of
    Staff Care’s evidence of economic damages as well as the testimony of individuals
    it had identified as having knowledge of relevant facts. Staff Care had served
    amended disclosures providing its damages analysis and then identifying more
    than 200 persons with knowledge one and three days before the close of discovery,
    just over thirty days before trial. The requests for such disclosures, however, had
    been pending for about two years, and Staff care had delayed responding, provided
    no information at all until it served these disclosures shortly before the close of
    discovery.
    The Court of Appeals denied Staff Care’s application for mandamus relief
    from the order striking its evidence. It rejected Staff Care’s arguments that its
    responses were timely, simply because they were made before the close of
    discovery and more than thirty days before trial. The Court said, “[T]here is no
    presumption that an amended disclosure made more than thirty days prior to trial is
    timely.” It also declined to adopt Staff Care’s contention that exclusion of its
    evidence amounted to a “death penalty” discovery sanction, requiring the
    consideration of less severe alternatives. The Court explained, “The rule [193.6(a)]
    12
    is mandatory, and the penalty—exclusion of evidence—is automatic, absent a
    showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice.”
    Staff Care’s arguments did not satisfy any exception that would excuse its
    deliberate delay in disclosing information about its claimed damages. The Court
    did find that excluding about 170 of the potential witnesses was improper because
    they had previously been disclosed in other aspects of the discovery process, and
    therefore there was no “unfair surprise” as to those witnesses, see TEX. R. CIV. P.
    193.6(a)(2) & (b); but otherwise it left intact the orders excluding Staff Care’s
    evidence.
    The rule requires the evidence to be “automatically inadmissible” at trial,
    unless that party (i) establishes good cause for failing or waiting to respond or (ii)
    proves lack of unfair surprise or unfair prejudice. Appellant’s only excuse for not
    answering the interrogatory requiring him to specifically identify each item he
    claims to be his separate property was because it was “putting the cart before the
    horse,” thus good cause could not be established. Further, Appellant admitted he
    did not file or provide a divorce inventory (RR pretrial at 169). Appellee did file a
    divorce inventory and it was entered into evidence. (CR 132 and RR Vol. 3 at 29
    exhibit 2) Therefore, lack of unfair surprise could not be established. If neither
    exception is established, the trial court has no discretion and it must exclude the
    13
    undisclosed evidence. For the reasons stated above, the Court should affirm the
    ruling by the trial court and overrule Appellant’s point of error.
    REPLY TO APPELLANT’S SECOND POINT OF ERROR
    II.       The trial court did not abuse its authority by ordering supervised
    possession of the children and by not specifying grounds for deviating
    from a standard possession.
    Appellant’s second point claims the trial court abused its authority on
    two grounds:
    1. Imposing supervised visitation for seeing any of the children
    when no request was made in any pleading; and
    2. imposing supervised visitation where there were no grounds
    stated for seeking any deviation from a Standard Possession
    Order.
    Appellant’s first point fails as Appellee specifically requested supervised
    possession in her live pleading the Second Amended Petition for Divorce (CR
    at 123). Appellant’s cited case authority of Smith v. Aramark Corporation is
    misplaced. Smith v. Aramark Corporation is a case involving summary judgments,
    a homeowner association, and the lack of third party beneficiary notice on non-
    contracting parties. In the case before this court, Appellee’s Second Amended
    Petition for Divorce clearly provides notice of the requested supervised possession.
    (CR 123 page 3). There was no objection at trial to the introduction of evidence
    relating to supervised possession. There was no objection at the entry of the
    decree. Appellant waived any right to complain.
    14
    Appellant’s second complaint is there were no grounds stated in the
    pleadings for seeking any deviation from a Standard Possession Order. Appellant
    is confused with the burden of proof at trial with the use of evidence and notice
    pleadings. Only notice pleadings are required, not specific reasons for each claim.
    If a party wishes to require more specific pleading of the other party, every defect
    in a pleading which is not specifically pointed out by exception in writing and
    brought to the attention of the judge shall be deemed to have been waived.
    T.R.C.P. Rule 90. Appellant never filed a special exception nor made such a
    request.
    If the complaint by Appellant is about the trial court not specifying the
    underlying facts as to why the trial court deviated from a Standard Possession
    Order and ordered supervised visits, the burden is on the Movant to timely
    request findings of fact. Roberson v. Robinson, 
    768 S.W.2d 280
    , 281 (Tex. 1989).
    Without a timely request for findings of fact, there is an inference that the trial
    court made all the necessary findings to support its judgment. 
    Id. The record
    is
    then reviewed to determine whether some evidence supports the judgment.
    Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex.1990). The court then may
    consider only the evidence “most favorable” to the trial court’s judgment and
    uphold that judgment on any legal theory that finds support in the evidence. 
    Id. In this
    case there was never a timely, or any, request for findings of fact. There was
    15
    ample evidence to show a deviation from a Standard Possession Order and the
    requirement of supervised possession was and is warranted.
    After the children visited with their father, they became apathetic,
    nervous and exhibited paranoia about dangers, and fear of being killed or raped.
    (RR Vol. 2 at 37- 40) Appellee testified that Appellant felt that something was
    wrong with his mind and that is why they went to a counselor. (RR Vol 2 at 14-
    19) Later Appellant was diagnosed with Paranoid Personality Disorder. (RR Vol 2
    at 49)
    After the parties separated and after the children visited their father, the
    children would come home afraid to go outside when the sun went down. (RR
    Vol. 2 at 40)     The children were filled with the belief from the father that the
    world was going to end and everything was doomed. (RR Excerpt of Testimony at
    12)      There was testimony that their father was so full of hatred that he was
    emotionally harming the children. (RR Excerpt of Testimony at 6) The father’s
    anger over time escalated and intensified when it should have dissipated. (RR
    Excerpt of Testimony at 7) The only way to prevent such unrealistic paranoia
    being instilled upon these children is for close supervision of the children during
    visits with their father. A proposed parenting plan was introduced into evidence.
    (RR Vol. 3 at 46, exhibit 30) The Court considered all the evidence.
    16
    The trial court has very broad discretion in determining the best interest
    of a child in family law matters. Leithold v. Plass, 
    413 S.W.2d 698
    (Tex.1967).
    The best interest of the child is the primary consideration of the court in
    determining the issues of conservatorship and possession of and access to the child.
    Messier v. Messier 
    389 S.W.3d 904
    , (Ct. of App. – Houston [14th Dist.] 2012).
    The judgment of the trial court will be reversed only when it appears from the
    record as a whole that the court has abused its discretion. MacCallum v.
    MacCallum, 
    801 S.W.2d 579
    , 582 (Tex. App. - Corpus Christi [13th Dist.] 1990,
    writ denied). When there is some evidence of substantive and probative character
    to support the trial court's decision on issues of conservatorship and possession of
    child, no abuse of discretion occurs. In re Marriage of Jeffries, 
    144 S.W.3d 63
    ,
    (Tex. App. - Texarkana, [6th Dist.] 2004). For the reasons stated above, the Court
    should affirm the ruling by the trial court and overrule Appellant’s point of error.
    PRAYER
    For the foregoing reasons, Appellee respectfully prays that the court
    confirm the judgment of the trial court, grant all relief in which Appellee is
    entitled, and overrule all relief requested by Appellant.
    17
    Respectfully submitted,
    By:    /s/ Vicki L. Pinak
    Vicki L. Pinak
    State Bar No. 16011357
    12946 S. Dairy Ashford Rd. Suite 400
    Sugar Land, TX 77478
    Tel:281-240-2355;Fax: 281-240-2354
    e-mail: Pinak@texadr.com
    Attorney for Appellee
    Certification of Compliance
    The undersigned attorney certifies that this document has a word count of
    3,388 words based upon the representation provided by the word processing
    program that was used to create the document. TEX. R. APP.P. 9.4 (i).
    /s/ Vicki L. Pinak
    Vicki L. Pinak, Attorney for Appellee
    Certificate of Service
    I certify that on the 14th day of May 2015, I served by certified mail return
    receipt requested 7014-3490-0001-6416-7825 a copy of this document to Charles
    Mandeville, V, pro se at 1323 Sunset Land, Guymon, OK 73942 and by e-mail,
    a   copy   of   this   document    to    Charles    Mandeville,   V,   pro      se   at
    southwest_biodiesel@hushmail.com.
    /S/ Vicki L. Pinak
    Vicki L. Pinak
    18