Randy Coleman and Jim Coleman Company v. Ralph Dean ( 2015 )

ACCEPTED
04-14-00811-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/5/2015 2:24:42 PM
KEITH HOTTLE
CLERK
No. 04-14-00811-CV
__________________________________________________________________
______ FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
In the Fourth Court of Appeals10/05/2015 2:24:42 PM
San Antonio, Texas KEITH E. HOTTLE
Clerk
__________________________________________________________________
______
RANDY COLEMAN
Appellants
v.
RALPH DEAN
Appellee
__________________________________________________________________
APPEAL FROM CAUSE NO. 11-04-49987-CV
th
79 DISTRICT COURT, JIM WELLS COUNTY, TEXAS
HON. JUDGE RICHARD C. TERRELL
__________________________________________________________________
APPELLANT’S MOTION TO ABATE AND REMAND
__________________________________________________________________
Paul R. Lawrence
State Bar No. 12050000
2180 North Loop West, Suite 510
Houston, Texas 77018
(713) 864-8000
(713) 864-0179 (fax)
prlawrence@lbandd.com
Counsel for Appellant Randy
Coleman
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IDENTITY OF PARTIES AND COUNSEL
Appellants/Defendants: Appellate Counsel:
Randy Coleman Paul Lawrence
State Bar No. 12050000
2180 North Loop West, Suite 510
Houston, Texas 77018
Jim Coleman Company Paul Lawrence
State Bar No. 12050000
2180 North Loop West, Suite 510
Houston, Texas 77018
Appellee/Plaintiff: Trial Counsel:
Ralph Dean Charles C. Webb
State Bar of Texas No. 21039500
Webb Cason PC
710 N. Mesquite
Corpus Christi, Texas 78401
Lead Appellate Counsel:
Frank Weathered
Dunn Weathered Coffey Rivera &
Kasperitis, PC
611 South Upper Broadway
Corpus Christi, Texas 78401
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No. 04-14-00811-CV
__________________________________________________________________
______
In the Fourth Court of Appeals
San Antonio, Texas
__________________________________________________________________
______
RANDY COLEMAN
Appellants
v.
RALPH DEAN
Appellee
__________________________________________________________________
APPEAL FROM CAUSE NO. 11-04-49987-CV
th
79 DISTRICT COURT, JIM WELLS COUNTY, TEXAS
HON. JUDGE RICHARD C. TERRELL
__________________________________________________________________
APPELLANT’S MOTION TO ABATE AND REMAND
__________________________________________________________________
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TO THE HONORABLE FIRST COURT OF APPEALS:
Comes now Randy Coleman, Appellant, Defendant in the trial court, and
files this Motion to Abate Appeal to extend time for filing of Findings of Fact and
Conclusions of Law, and would respectfully show the Court the following:
I.
Appellant Randy Coleman was found to be responsible pursuant to a Trial,
presented to the Jury by Plaintiff, but withdrawn from Jury’s consideration by
Plaintiff. The Judge of the Court signed the Judgment on June 30, 2014.
Appellant Randy Coleman brought this Restricted Appeal predicated on his post
answer default and the fact that he did not have notice or knowledge, either actual
or constructive, of the Judgment.
II.
Appellant Randy Coleman was relegated to this Restricted Appeal to seek
any relief. He was afforded no opportunity to file Requests for Findings of Fact
and Conclusions of Law. This Court has noted that he can only rely on legal
insufficiency of evidence, not factual insufficiency.
III.
Appellant Randy Coleman has been deprived of any meaningful appeal
without those Findings and Conclusions. Such is not the purpose or the intended
effect of permitting a Defaulting Post Answer Defendant an appeal.
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IV.
The Judge that presided the Trial is still on the 79th District Court bench.
Further, all the lawyers involved at the Trial are also available. Rule 2 of the Rules
of Appellate Procedure give this Court broad authority to abate this case and begin
time deadlines anew. Appellant Randy Coleman requests that the Court abate this
Appeal and remand to the Trial Court for an opportunity to prepare and file such
Requests within 20 days. It would appear 60-90 days would be a reasonable time
to prepare, circulate, object, amend and for requests for additional findings and
conclusions.
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WHEREFORE PREMISES CONSIDERED, Appellant prays that this
Motion to Abate and Remand be granted, that the Case be remanded to the Trial
Court for preparation and filing of Findings of Fact and Conclusions of Law as
soon as practicable. Appellant also prays for all such other and further relief to
which they may be justly entitled at law or in equity.
RESPECTFULLY SUBMITTED:
LAWRENCE AND BACA, PLLC
_____/s/ Paul R. Lawrence__________
Paul R. Lawrence
State Bar No. 12050000
2180 North Loop West, Suite 510
Houston, Texas 77007
Telephone: (713) 864-8000
Fax: (713) 864-0179
prlawrence@lbandd.com
Counsel for Appellant
CERTIFICATE OF CONFERENCE
I, Paul R. Lawrence hereby certify that I have contacted Frank Weathered’s
office and at the time of the filing of the Motion and we were unable to reach an
agreement.
_/s/ Paul R. Lawrence__________
Paul R. Lawrence
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CERTIFICATE OF SERVICE
I, Paul R. Lawrence, in compliance with Texas Rule of Appellate Procedure,
hereby certify that a true and correct copy of the foregoing Appellant’s Motion to
Abate and Remand was sent to all other parties to the trial court’s judgment by
facsimile transmission, eservice or certified mail on this the 5th day of October,
2015, as listed below:
Charles C. Webb
Webb Cason PC
710 N. Mesquite
Corpus Christi, Texas 78401
Charlie@wcctxlaw.com
Frank Weathered
Dunn Weathered Coffey Rivera & Kasperitis, PC
611 South Upper Broadway
Corpus Christi, Texas 78401
fweathered@swbell.net
Parker Webb
Webb Cason PC
710 N. Mesquite
Corpus Christi, Texas 78401
parker@wcctxlaw.com
J. Michael Guerra
Law Office of J. Michael Guerra
1600 E. Main, Suite 227
P.O. Box 1968
Alice, Texas 78333
Jmguerra14@gmail.com
Living Modular
16221 Koester
Houston, Texas 77040
__/s/ Paul R. Lawrence
Paul R. Lawrence
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