William H. Scurlock v. John M. Hubbard ( 2015 )

ACCEPTED
06-15-00014-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/6/2015 4:47:26 PM
DEBBIE AUTREY
CLERK
CAUSE NO. 06-15-00014-CV
__________________________________________________________________
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS TEXARKANA, TEXAS
FOR THE SIXTH DISTRICT OF TEXAS, TEXARKANA 4/6/2015DIVISION
4:47:26 PM
__________________________________________________________________
DEBBIE AUTREY
Clerk
WILLIAM H. SCURLOCK §
§
v. §
§
JOHN M. HUBBARD §
__________________________________________________________________
APPELLANT’S RESPONSE TO
APPELLEE’S MOTION TO DISMISS
__________________________________________________________________
ON APPEAL FROM THE 102nd JUDICIAL DISTRICT COURT
CAUSE NO. 14C1653-102
__________________________________________________________________
Cory J. Floyd
Texas Bar No. 24049365
Cammy R. Kennedy
Texas Bar No. 24079245
NORTON & WOOD, L.L.P.
315 Main Street
Texarkana, Texas 75501
Phone: (903) 823-1321
FAX: (903) 823-1325
ATTORNEYS FOR APPELLANT,
WILLIAM H. SCURLOCK
APPELLANT’S RESPONSE TO APPELLEE’S MOTION TO DISMISS
Appellant asks the Court to deny appellee’s motion to dismiss the
appeal, and to take and consider this motion with the case because the
motion to dismiss requires an inquiry into, and involves the merits of
the appeal. 1
I. INTRODUCTION
1. Appellant is William H. Scurlock; Appellee is John Hubbard.
2. On February 20, 2015 Appellant brought this appeal of the trial
court's Order For Issuance of Temporary Injunction and Appointment of
Receiver which was signed on February 3, 2015 taking effect
immediately. See generally [CR 67-73].
3. Appellee is unable to obtain the bonds required by the trial court
as a term of the temporary injunction, and Appellee now asserts that
his inability to obtain these bonds shelters the trial court's order from
review.
4. Since February 3, 2015, receiver Randy Moore has managed Pecan
Point Brewing Company, to the exclusion of Appellant, William H.
Scurlock. See Affidavit of William H. Scurlock (attached hereto as
1 Appellee's Motion to Dismiss Fails to Comply with Texas Rule of Appellate Procedure 10.1(a)(5).
1
Exhibit “A”); and Email Dated Tuesday, February 3, 2015 from receiver
Randy Moore to Counsel for Appellant (attached hereto as Exhibit
“B”)(Exhibits “A” and “B” are hereby incorporated by reference as if set
out in its entirety).
II. ARGUMENT AND AUTHORITIES
5. Although the Court has the authority under Texas Rule of
Appellate Procedure 42.3(a) to dismiss an appeal for lack of jurisdiction,
this is not a case in which the Court should do so.
The Order For Issuance of Temporary Injunction and
Appointment of Receiver is Appealable.
6. Section 51.014 of the Civil Practice and Remedies Code expressly
authorizes an appeal from certain interlocutory orders of the trial court,
including orders appointing a receiver and orders granting or refusing a
temporary injunction. Tex. Civ. Prac. & Rem. Code §51.014(a)(1) (West
2011); Tex. Civ. Prac. & Rem. Code §51.014(a)(4) (West 2011).
7. The Order For Issuance of Temporary Injunction and
Appointment of Receiver clearly appointed a receiver and granted a
temporary injunction. See generally [CR 67-73].
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The Appeal was Timely Perfected.
8. The Court should deny appellee’s motion to dismiss this appeal for
lack of jurisdiction because appellant timely perfected his appeal. Tex.
R. App. P. 28.1 (stating appeals from interlocutory orders, when allowed
by statute, are accelerated and are perfected by filing a notice of appeal
“within the time allowed by Rule 26.1(b).” The time allowed by Rule
26.1(b) is twenty days after the order is signed. Tex. R. App. P. 26.1(b).
9. On February 3, 2015, the trial court signed its Order For Issuance
of Temporary Injunction and Appointment of Receiver. [CR 67-73].
10. On February 20, 2015, seventeen days later and clearly within the
twenty day time period prescribed by Texas Rule of Appellate Procedure
26.1, Scurlock filed his Notice of Appeal, therefore perfecting an appeal
to this Court of the Order For Issuance of Temporary Injunction and
Appointment of Receiver. [CR 80].
11. On March 4, 2015, the Court of Appeals issued a letter notifying
Scurlock that his appellate brief was due on or before March 24, 2015.
On March 19, 2015 Scurlock filed his Appellants Brief, clearly prior to
the Court's deadline. Brief of Appellant, William H. Scurlock v. John
M. Hubbard, No. 14C-1653-102, appeal docketed, 06-15-00014-CV
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(March 19, 2015). Because Appellant timely perfected his appeal, and
timely filed his brief, the Court should deny the motion to dismiss.
Appellant's Right to Appeal the Temporary Injunction Arises on
the Date the Order is Signed.
12. In re Robinson Family Entities explicitly provides that when the
trial court’s order restrains motion and enforces action, similar to the
order in this case, the order functions as a temporary injunction, which
grants the appeals court jurisdiction over the appeal. In re Robinson
Family Entities, 11-12-00258-CV, 2014 WL 4347838, at *1 (Tex. App.—
Eastland Aug. 29, 2014, no pet.)(not designated for publication).
13. It is well established that a party loses its right to complain about
the validity of an injunction if appeal is not perfected within the proper
time limits after the grant of the injunction. Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(4) (Vernon Supp.1990); Bayoud v. Bayoud, 797
S.W.2d 304, 312 (Tex. App.—Dallas 1990), writ denied (Jan. 30, 1991).
14. The proper time to perfect an appeal for the grant of a temporary
injunction is twenty days from the date the order is signed. Tex. R.
App. P. 26.1(b) (emphasis added).
15. Appellee argues, in his motion to dismiss:
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"Because the required bonds have not been paid, the
temporary injunction that is the subject of Scurlock's
interlocutory appeal has not been issued and is not
effective." Appellee’s Motion to Dismiss, at 4, William
H. Scurlock v. John M. Hubbard, No. 14C-1653-102,
appeal docketed, 06-15-00014-CV (March 19, 2015).
He continues:
"Because the temporary injunction that is the subject
of Scurlock's interlocutory appeal is not in effect,
Scurlock's interlocutory appeal regarding the
temporary injunction is premature and must be
dismissed for lack of jurisdiction of this Court." Id.
16. Appellee cites no authority, statutory or common law, in support
of the proposition that Appellant's timeline for appeal of the grant of a
temporary injunction, runs from the date of the clerk's issuance of the
writ of injunction.
17. Appellant brought this appeal timely from the date of the signing
of the order, in compliance with the Civil Practice and Remedies Code
and the Texas Rules of Appellate Procedure, calculating all deadlines in
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accordance with those rules, clearly vesting this Court with jurisdiction
over this matter. For this reason, the motion to dismiss should be
denied.
Denying Review of the Temporary Injunction Would Deprive
Appellant of any Procedural Mechanism to Appeal.
18. Appellee argues that review of the temporary injunction is
premature, until such time as he elects to, or is able to post the
requisite bonds. Id. Appellee's argument, if it succeeds, allows him to
shelve the order granting temporary injunction, and shield it from
review until he elects to enforce it, all the while receiving the benefit of
the same through the receivership which is in place and effectuating the
purpose of the injunction.
19. If Appellant's deadline runs twenty days from the date the order is
signed (Texas Rule of Appellate Procedure 26.1), but Appellant is not
allowed to appeal the order, until such time as the Appellee attempts to
enforce the order (Appellee's unsupported theory), Appellant is deprived
of a procedural mechanism for review. Again, this proposition is
unsupported by statute, rule or case law, and is contrary to Texas Rule
of Appellate Procedure 26.1.
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20. If there is no procedural mechanism for a party to be exonerated
on appeal, and the collateral consequences of the lack of review are
harsh, the court may decide an issue. See Gen. Land Office of State of
Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990); State v.
Lodge, 608 S.W.2d 910, 911 (Tex. 1980).
Even Assuming the Appeal of the Temporary Injunction is
Premature, the Receivership is Appealable.
21. Hubbard’s motion entirely avoids Scurlock’s appeal of the
receivership. Accordingly, his Motion to Dismiss must be interpreted to
seek only the partial dismissal of portions of the order establishing the
temporary injunction.
22. The trial court's order dated February 3, 2015, ordered Scurlock to
"turn over management of Pecan Point Brewing Company to the
Receiver as of February 3, 2015 at 3:00 p.m." [CR 69]. This is
immediate and appealable error because, instead of conditioning this
improper jaunt into receivership on the posting of the Applicant’s bond,
as required by Texas Rule of Civil Procedure 695a, the receivership was
set to take effect at a certain time and place, specifically, February 3,
2015, at 3:00 p.m., regardless of whether any of the required bonds were
7
in place. Tex. R. Civ. P. 695a. This issue is explained in detail in
Appellant's brief which is incorporated herein by reference, as if set out
in its entirety.
23. Because the grant of the receivership was timely appealed, the
Court should deny appellee’s motion to dismiss this appeal for lack of
jurisdiction.
Appellee's Motion to Dismiss Concedes Issue Two of Appellant's
Brief
24. The trial court failed to require the necessary bonds for a
receivership prior to entering its order establishing a receivership, and
accordingly the Court should grant Appellant the relief sought under
issue two of Appellant’s appeal brief.
25. Appellee's motion to dismiss states that one bond was ordered for
the receiver, and two were ordered pursuant to Texas Rule of Civil
Procedure 684 (injunction bonds). Tex. R. Civ. P. 684.
26. In order for a receivership to be effective, there must be two bonds
posted. First, the applicant must post a bond payable to the defendant,
in an amount fixed by the court sufficient to cover all probable damages
and costs, “conditioned for the payment of all damages and costs in such
8
suit, in case it should be decided that such receiver was wrongfully
appointed to take charge of such property.” Tex. R. Civ. P. 695a.
Second, the receiver must post a bond approved by the appointing court,
in an amount fixed by the court and conditioned on the faithful
discharge of his duties as receiver. Tex. Civ. Prac. & Rem. Code Ann.
§64.023 (Vernon 1985).
27. Because appellee concedes issue two of Appellant's Brief, the
motion to dismiss should be denied, and the Court should contemplate
Appellee's concessions in the motion to dismiss, as argument, authority
and evidence in support of Appellant's appeal of the Order For Issuance
of Temporary Injunction and Appointment of Receiver.
III. PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant asks this
honorable Court to take this motion with the case because the motion to
dismiss requires an inquiry into, and involves the merits of the appeal.
Appellant further asks the Court to deny appellee's motion and
continue with this appeal. Appellant asks this Court to vacate the trial
court's Order for Issuance of Temporary Injunction and Appointment of
Receiver, reverse the trial court's judgment, render judgment denying
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the application for receivership and the application for injunction, and
award to Appellant, William Scurlock, all costs incurred with the filing
of this appeal and Response to Appellee’s Motion to Dismiss.
Respectfully submitted:
/s/ Cory J. Floyd
Cory J. Floyd
Texas Bar No. 24072348
Cammy R. Kennedy
Texas Bar No. 24079245
NORTON & WOOD, L.L.P.
315 Main Street
Texarkana, Texas 75501
Phone: (903) 823-1321
FAX: (903) 823-1325
Email: cory@nortonandwood.com
Email: cammy@nortonandwood.com
ATTORNEYS FOR APPELLANT,
WILLIAM H. SCURLOCK
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 6, 2015, a true and correct
copy of the Appellant’s Brief was forwarded to the counsel below:
Brent M. Langdon
Kyle B. Davis
Langdon & Davis
625 Sam Houston Drive, Suite A
New Boston, Texas 75570
Phone: (903) 628-5571
Fax: (903) 628-5868
Email: blangdon@ldatty.com
Email: kdavis@ldatty.com
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AFFIDAVIT OF WILLIAM H. SCURLOCK
STATE OF TEXAS §
§
COUNTY OF BOWIE §
BEFORE ME, the undersigned authority, on this day personally
appeared vVilliam H. Scurlock, who under oath stated as follows:
1. l\1y name is William H. Scurlock. I am over eighteen (18)
years of age and am legally competent to make this Affidavit, which is
true and correct, is based on my personal knowledge, and is made
voluntarily and not under duress. The information contained herein is
true and correct.
2. On Tuesday, February 3, 2015 Randy Moore, acting as a
court appointed receiver, assumed control of Pecan Point Brewing
Company, Inc.
3. l\1y only access to, and rights in, Pecan Point Brewing
Company, Inc. are based on his consent.
~$;~
WILLIAM H. SCURLOCK
EXHIBIT
````````-'
Affidavit ofW"illiam H. Scurlock
A
William H. Scurlock v. John M. Hubbard, No. 14C-1653-102,
appeal docketed, 06-15-00014-CV (March 19, 2015). Page 1
SWORN TO AND SUBSCRIBED BEFORE ME on this Ji!!! day
of April, 2015, to certify which witness my hand and official seal.
Affidavit of~Tilliam H. Scurlock
William H. Scurlock v. John M. Hubbard, No. 14C-1653-102,
appeal docketed, 06-15-00014-CV (March 19, 2015). Page2
Cory Floyd
From: rmtexarkana@aol.com
Sent: Tuesday, February 03, 2015 7:42 PM
To: Cory Floyd
Subject: Re:
Mr. Floyd, Thanks for sending the signed order. On Monday, Feb 2, 2105, I met with Bill and Linda at PPB. I did a
general walk thru. Today Tuesday Feb 3rd, I met with the Scurlock's, GM Jason Williams and Becky Williams during their
"staff management meeting". I briefly met the exec chef Justin. I now have a better understanding of the operations at
PPB.
I have completed my initial assessment of PPB. I have no immediate concerns. I will review the accounts payable and
payroll process. I'm considering changes in the accounts payable and payroll process.
Linda Scurlock was very helpful. I will continue working with her. I've asked her to work Monday thru Friday 1 PM until 7
PM. She will perform the same general duties with my over site.
William Scurlock,( per the order) is restrained from PPB, without my consent or request for help.
Mr. Scurlock has good knowledge of the PPB physical plant. As repairs, modifications and improvements are needed,
I've instructed Mr. Scurlock to notify me via text or telephone before completing these jobs. I will allow Mr. Scurlock to
continue working with Jan Orr in brewing operations. This includes revisions currently in process and restarting the
brewing process. I must be present during the time Mrs. Orr is doing her work.
I understand our need to notify TACB and the insurer of my appointment as receiver. I will prepare documents to be
presented to Judge Carlow for his approval. I request we send the order signed by Judge Lockhart along with the
approval from Judge Carlow in the same correspondence to TACB and the insurer. I hope you are agreeable.
I have applied for the $10K bond. Should have approval shortly.
Thanks again, Randy Moore
---Original Message--
From: Cory Floyd
To: rmtexarkana
Cc: Candace Carathers
Sent: Tue, Feb 3, 2015 5:11 pm
Mr. Moore,
The attached order was signed today.
Please confirm in writing, again, that you wish for Mr. Scurlock to continue as stated in your email dated Monday,
February 2, 2015.
I'm forwarding the order to the insurer, as well as the TABC. I'll copy you on my correspondence, for your file, when I
send it. If you wish to discuss my actions before I send these, please let me know.
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Cory J. Floyd
315 Main Street• Texarkana, Texas 75501-5604
Telephone: 903.823.1321 •Facsimile: 903.823.1325
Web: www.nortonandwood.com EXHIBIT
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