APPELLEE’S B · Malnar v. Mechell, 91 S.W.3d 924, 928 (Tex.App. -Amarillo 2002, no pet.) . . . . . . . . . 19 . McKeithan vs. Condit, No. 13 -10-00226-CV (Tex.App. -- Corpus Christi

No: 13-16-00348-CV

IN THE THIRTEENTH COURT OF APPEALS CORPUS CHRISTI – EDINBERG, TEXAS

____________________________________________________________________

MARILYN MCKEITHAN, Appellant

vs.

BRADFORD M. CONDIT, Appellee

____________________________________________________________________

Appeal from Cause No. 2015-DCV-2604-B In the 117th Judicial District Court, Nueces County, Texas

____________________________________________________________________

APPELLEE’S BREIF

____________________________________________________________________

Bradford M. Condit, Appellee, pro se Texas Bar No. 04656525 401 N. Tancahua Corpus Christi, Texas 78401 Voice: (361) 884-2075 Fax. (361)884-2077

ACCEPTED13-16-00348-CV

THIRTEENTH COURT OF APPEALSCORPUS CHRISTI, TEXAS

9/8/2017 1:14 PMDorian E. Ramirez

CLERK

II. TABLE OF CONTENTS

II. Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i III. Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii IV. Statement of The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii V. Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv VI. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 VII. Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 VIII. Argument and Authorities for Issue One . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The trial court did not did not abuse its discretion in ordering that Appellee could not use any evidence not disclosed in response to written discovery and prohibiting her from testifying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. The trial court did not abuse its discretion in striking Appellee’s pleadings as sanctions for abuse of discovery and for failures to comply with its docket control orders . . . . . . . . . . . . . . . 8

Inadequate Appellate Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Law of Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Effect of Appellant’s Pleadings Being Struck . . . . . . . . . . . . . . . . . . . . . 14

IX. Argument and Authorities for Issue Two . . . . . . . . . . . . . . . . . . . . . . . . . 14 The trial court did not err in determining that it was Appellant’s Burden of Proof to Establish the Property Was Appellant’s homestead

i.

Failed to Preserve Complaint for Review . . . . . . . . . . . . . . . . . . . . . . . 15 No Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 No Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

X Argument and Authorities for Issue Three . . . . . . . . . . . . . . . . . . . . . 18

The trial court did not err in its ruling that the property was not Appellant’s homestead because the law of the case doctrine did not apply.

The Law of Homestead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Law of the Case Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 XI. Argument and Authorities for Issue Four . . . . . . . . . . . . . . . . . . . . . . . . . 22

The trial court did not err in its ruling that the property was not Appellant’s homestead because the doctrine of res judicata and collateral estopple did not apply.

The Law of Res Judicata and Collateral Estoppel . . . . . . . . . . . . . . . . . 22

XII. Argument and Authorities for Issue Five . . . . . . . . . . . . . . . . . . . . . . . . 24

The trial court did not err in awarding attorney’s fees for an appeal.

XIII. Prayer for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 XIV. Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 XV. Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

ii.

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Appendix A: 3-17-09 1st bankruptcy case dismissed because McKeithan refused to make required disclosures;

Appendix B: 5-08-09 2nd bankruptcy case dismissed because McKeithan refused to make required disclosures;

Appendix C: Judge Parker’s findings and decision denying McKeithan discharge because of lying in her disclosures and multiple lies in a deposition and examining hearing;

Appendix D: 12-27-11 judgment denying discharge due to fraud;

Appendix E: 5-06-16 5th case dismissed with prejudice due to bad faith and lying

Appendix F: Appellant’s August 2015 Motion for Summary Judgment

iii.

Appendix G: Appellant's 5th Circuit Brief exposing the made-up facts of the bankruptcy court and ignored by the 5th Circuit

III. INDEX OF AUTHORITIES

Case Law Authority

Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992) . . . . . . . . . . . . . . . . . . . . . 8

Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) . . . . . . . . . . . . . . . 9

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Buck v. Estate of Buck, 291 S.W.3d 46 (Tex. App -- Corpus Christi-Edinburg, 2009) . 11, 13

Burk Royalty Co. v. Riley, 475 S.W.2d 566, 568 (Tex. 1972) . . . . . . . . . . . . . . . . . 15, 17, 19

Carpenter v. Carpenter, No. 02-10-00243-C, 2011 WL 5118802 (Tex. App.—Fort Worth Oct. 27, 2011, pet. denied) (mem. op.) . . . . . . . . . . . . . . . . . . . 25

City of Aledo v. Brennan, 02-14-00147-CV, 02-14-00153-CV (Tex.App. – Ft.Worth, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

City of Willow Park Bryant, 763 S.W.2d 506, 511 (Tex. App.—Forth Worth 1988, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dickey v. McComb Development Co., Inc., 115 S.W.3d 42 (Tex.App.— San Antonio 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19

Doyle v. State, 24 S.W.3d 598, 602 (Tex. App.-Corpus Christi 2000, pet. ref'd). . . . . 16, 17

Drake Interiors, LLC v. Thomas, 433 S.W.3d 841, 848 (Tex.App.-Houston 2014) . . . 15, 17

Haut v. Green Café Mgmt., Inc., 376 S.W.3d 171, 180 (Tex.App.—Houston [14th Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Hill v. Tx-An Anesthesia Management LLP, 443 S.W.3d 416 (Tex.App.-Dallas 2014) . 23

In Interest of W.E.R, 663 S.W.2d 887 (Tex.App. —San Antonio 1983), rev’d on other grounds, In Interest of W.E.R., 669 S.W.2d 716 (Tex. 1984) . . . . . . . . . 10

iv.

Malnar v. Mechell, 91 S.W.3d 924, 928 (Tex.App.-Amarillo 2002, no pet.) . . . . . . . . . 19 McKeithan vs. Condit, No. 13-10-00226-CV (Tex.App. -- Corpus Christi-Edinburg)(mem. op., 12-19-2013, pet. denied) . . . . . . 2, 4, 12 Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex.1999) . . . . . . . . . . . . . . . . . . 15, 19 Paradigm Oil, Inc. v. Retamco Opertators, Inc., 372 S.W.3d 177, 183 (Tex. 2012). 14, 21

S. Mitchell v. American Home Mortgage Servicing, Inc., 13-12-00649-CV (Tex.App. -- Corpus Christi-Edinburg, 9-12-13) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11 Sandoval v. Comm'n for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . 16, 17 Stewart v. Clark, 677 S.W.2d 246, 250 (Tex.App.-Corpus Christi 1984, no writ) . 15, 19 Thomas vs. State of Texas, Case No. 13-04-573-CV (Tex.App. – Corpus Christi-Edinburg, 5-17-07)(mem. op.) . . . . . . . . . . . . . . . . . . 15, 16 Watson v. Tipton, 274 S.W.3d 791, 800 (Tex. App.— Fort Worth 2008, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 19 Whallon v. City of Houston, 462 S.W.3d 146, 155 (Tex.App.-Houston [1st Dist.] 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Rules of Procedure Tex.R.Civ.P. 193.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Tex.R.App.P. 34.6(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 Tex.R.App.P. 34.6(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 Tex.R.App.P. 34.6(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 Tex.R.Civ.P. 215.2(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

v.

Tex.R.Civ.P. 215.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex.R.Civ.P. 239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex.R.App. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Tex.R.Civ.P. 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22, 23

Statutes

Tex. Tax Code Ann. § 11.13(a), (j), (l) (Vernon 2008). . . . . . . . . . . . . . . . . . . . . 15, 18

Tex.Civ.Prac. & Rem. Code § 37.009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

vi.

IV. STATEMENT OF THE CASE Appellee filed a declaratory action to determine whether Appellant’s claim of homestead

was valid. After many discovery abuses and disregard of the court’s docket control orders the

trial court ordered that Appellee could not use any evidence not disclosed in discovery,

including her own testimony for the failure to submit to a court-ordered deposition.

The trial court also struck Appellant’s pleadings for the many discovery abuses.

The trial court then, in addition, entered judgment for Appellee declaring that property

Appellant claimed was homestead was not her homestead based on the evidence.

Appellee did not request an offer of proof under TRE proof of evidence 103(a)(2); TRAP

33.1(a)(1)(B) or any bill of exception pursuant to TRAP 33.2.

V. STATEMENT OF ORAL ARGUMENT

Oral argument is not requested.

vii.

1

VI. STATEMENT OF FACTS

Appellee rejects Appellant’s statement of facts and submits the following which excludes

many not-of-record statements, hyperbole and appeals for sympathy contained in Appellant’s

statement.

Appellee obtained an Agreed Judgment against Appellant in case no. 09-2260-B for

$85,065.00 on May 21, 2015. The court then severed his declaratory judgment cause of

action that called upon the trial court to declare that real property owned by Appellant was

not her homestead.1 Appellant’s 3rd Amended Petition filed on March 10, 2015 claimed:

“9. Homestead claim: Defendant claims property she owns on Flynn Parkway

in Corpus Christi, Nueces County Texas is her homestead and thus exempt

from any liens or execution to pay the debt she owes Plaintiff. Plaintiff claims

it is not her homestead. Plaintiff seeks a declaratory judgment that the property

is not her homestead property because it is not her residence, she has alienated

an interest to it for an unrelated consumer debt and/or she has abandoned it as

her homestead. Plaintiff seeks a declaratory judgment that the property is not

her homestead.”

(CR pg. 8)

In 2015, nearly a year before the trial held on May 23, 2016, Appellee served

Appellant with Interrogatories, Requests for Disclosures, Requests for Production,

1 This lawsuit was required because of the ruling in Condit vs. Kaelin, 13th Court of Appeals District (13-11- 00327-CV)(mem. op.)(08-16-12)

2

Notice to Inspect Property and two Deposition Notices (one of which was court ordered)

all of which she ignored. (RR Vol. 2, pp. 10-14; CR 145-159)

In the case from which this case was severed the trial court had also struck

Appellant’s pleading for continued discovery abuse, as this court’s opinion recognized

in McKeithan vs. Condit, No. 13-10-00226-CV (mem. op., 12-19-2013) (pet. denied)2:

“On December 31, 2009, Condit filed a motion for sanctions, requesting that the trial court prohibit McKeithan from testifying at trial. On January 8, 2010, the trial court held a hearing on the motion during which the court remarked as follows:

[McKeithan] failed to respond to discovery, failed to

appear at several noticed depositions, failed to appear at

the court-ordered deposition and failed to appear for

mediations ordered by this Court, so I will strike her

pleadings . . . and . . . [she] will not be allowed to present

testimony - - not be allowed to present evidence . . . . It

will be a very short trial.”

The ignored Requests for Production in the severed declaratory action would have

disclosed whether or not the property was Appellant’s homestead. The requests directed

the production of the following documents for the time period February 1, 2011 to date.

They state:

2 This court reversed the fraud finding holding that there was no evidence that Appellant lied about not having funds to pay attorney’s fees for her defense of a lawsuit filed against her. We discovered that she did have funds in the bankruptcy case -- $65,000.00.

3

“1. All utility bills and evidence of payment: 2. Any document showing any type of maintenance of the property:3. Any document showing that you have received any mail addressed to that

property:4. Any receipt, credit card statement or other documents showing the following:

transportation (e.g. flights, gas receipts, rent cars, etc) to Corpus Christi:hotel expenses for stays in Corpus Christi or going to or from Corpus Christi;

5. Pictures of you at the property;6. Your voter’s registration;7. Your car title and registration;8. All mail you have received in Tyler, Texas.”

(RR Vol. 4, Ex. D, pp. 6-7)

The trial court on July 8, 2015 entered its Docket Control Order requiring Appellant

to attend a Status/Settlement Conference on August 7, 2017; a Pre-Trial Conference on

September 18, 2015 and a Docket Call on September 18, 2017. She failed to comply with any

of these orders.3

Appellant’s abuse of the judicial system, both state and federal, is well documented and is

legendary. See Appendix A, B, C, D & E.4

3 Appellant failed to request from the Court’s Reporter and Clerk the record of these proceedings and so has failed to provide this court with an adequate appellate record. See, TRCP 34.6(a)(1), TRAP 34.6(b)(1) 34.6(c)(1).

4 “(fn 5) See, TEX. R. EVID. 201(b) (providing that a court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned); see also Cool Fashion of NY Inc. v. New Fashion 6TH Ave. Corp., 55 Misc. 3d 271, 274, 42 N.Y.S.3d 781, 783 (N.Y. Civ. Ct. 2016) (taking judicial notice of the United States Postal Service's official website, which allowed for tracking of certified mail); Ananias v. Stratton, 11-3274, 2012 WL 1434880, at *2 (C.D. Ill. Apr. 25, 2012).” Henderson v. Blalock, 13-16-00175-CV & 13-16-00176-CV (Tex.App. – Corpus Christi-Edinburg, 8-3-17). In this case the federal court records system PACER is accurate and readily available for reference if necessary.

4





Appendix E: 5-06-16 5th case dismissed with prejudice due to bad faith and lying.

Bankruptcy Judge Parker denied number three bankruptcy case for fraud when Appellant

lied about owning and then liquidating a $65,000.005 account she owned:

“The Plaintiff [Condit] has successfully demonstrated that the Debtor [McKeithan] made repeated false statements under oath by failing to disclose the liquidation of the TD Ameritrade account and the income resulting from it. The Court further finds that the Debtor knew the statements were false when they were made. With regard to the knowledge element, ''[k]nowledge that a statement is false can be evidenced by a demonstration that the debtor knew the truth, but nonetheless failed to give the information or gave contradictory information ." Ayers v. Babb (In re Babb), 358 B.R. 343, 355 (Bankr . 2006), quoting Hamo v. Wilson (In Re Hamo), 233 B.R. 7 18, 725 (B.A.P. 6th Cir. 1999). The evidence demonstrates that the Debtor repeatedly denied under oath that additional bank accounts existed and that a significant distribution of assets had occurred months before her third bankruptcy filing. These false statements were repetitive, consistent and occurred over a series of months in a variety of contexts - in written statements as well as in oral responses to face-to-face examinations. They were repeated until the Debtor was faced at her adversary deposition with irrefutable evidence that the account existed and that a substantial liquidation of her stock holdings had

5 This was the missing link of evidence the panel in the McKeithan v. Condit opinion wanted to see in order to uphold the fraud finding by the trial court – it wasn’t there so the panel reversed that portion of the judgment. We found the $65,000 even though McKeithan lied about it. See, McKeithan v. Condit, No. 13-10-00226-CV (Tex.App. – Corpus Christi-Edinburg, 12-19-2013) (mem. op.) (pet. denied) Interestingly, the court reversed the $20,000.00 exemplary damage award from the total judgment and remanded which resulted an increase of the money judgment by $40,000.00 -- a true Pyrrhic victory.

5

taken place. She expressed surprise at that deposition that the Plaintiff had uncovered the account and inquired how that had been accomplished. Months later her only explanation for the repeated omissions was that it was an "'oversight.'' The overall set of circumstances convinces this court by a preponderance of the evidence that it was not.

Such false oaths by the Debtor were materially related to the bankruptcy case. A false statement or omission is material, “if it bears a relationship to the debtor’s business transactions, or if it concerns the discovery of assets, business dealings, or the existence or disposition of the debtor’s property.

************************************** The Court has carefully reviewed the evidence surrounding the entire pattern of the Debtor’s conduct -- including the series of omissions and specific denials by the Debtor relating to the existence of the TD Ameritrade account and its liquidation. The liquidation of this account was a significant transaction in the financial life of this Debtor.

It ·was the greatest concentration of liquid assets and her disposition of those proceeds had a direct effect upon the Debtor 's ongoing Nueces County litigation for which she had, even at the time of trial, a specific and detailed recollection. Yet on at least four distinct occasions under oath - in her original schedules, in her §341 meeting testimony, in her amended schedules, and in her oral deposition - the Debtor “forgot” repeatedly about the significant stock holdings that she had possessed and ''forgot'' her utilization of the proceeds from those holdings with which she had settled the litigation that had occupied her for years.

The Debtor contends that her repeated omissions and denials regarding the stock account and its liquidation were unintentional oversights.

Given the size and significance of the stock liquidation and subsequent transfers, such assertions are not credible. She intentionally lied about that account and deliberately omitted it from both her original schedules as well as her amended ones. Though the Debtor was apparently acting under some misimpression of law that motivated her repeatedly to deny the existence of the account and its liquidation until faced with direct evidence of its existence, those actions were taken intentionally by her and, at best, were taken with a reckless disregard for the truth. Therefore, the Plaintiff has demonstrated by a

6

preponderance of the evidence that the false oaths were made on repeated occasions by the Debtor with a fraudulent intent.”

(Appendix C)

The trial court’s final judgment from which this appeal arises stated:

“Additionally, Defendant [McKeithan] has demonstrated a history and pattern of discovery abuses in not only this cause of action but the related case (Cause No: 09-2260-B, 117th Judicial District Court, Nueces County, Texas) from which this case was severed.”

(CR pg. 161)

Appellant did not request or file with this court the “demonstrated … history

and pattern of discovery abuses … in the related case.”

In summary we have an Appellant who has abused the duty to follow courts’

discovery and disclosure requirement rules 12 times between 2009 through 2016 -- the

courts’ records showing that she has had thirteen different lawyers representing her during

this time. And, she has had four bankruptcy cases dismissed for either failing to disclose

her assets or lying multiple times about them. She is not, as Appellant’s counsel describes

in a wrongful attempt to elicit sympathy, a “little old lady that lives in a shoe”6 – she is in

fact very litigation savvy and has engaged in multiple frauds on people and the courts.

6 Thanks to Mother Goose for supplying the analogy.

7

VII. SUMMARY OF THE ARGUMENT

The trial court did not abuse its discretion in striking Appellant’s pleadings as sanctions

for discovery abuse. As to this issue Appellant also failed to bring to this court an adequate

appellate record.

The trial court did not err in determining that it was Appellee’s burden of proof to

establish that the property was appellant’s homestead. Appellant also failed to preserve her

complaint for appellate review and did not offer any evidence to support any burden of proof

shifting and did not have any pleadings to support this affirmative defense.

The law of the case doctrine did not apply because Appellant failed to preserve her

complaint for appellate review and did not offer any evidence to support any burden of proof

shifting. She did not have any pleadings to support this affirmative defense, and this doctrine

only applies to cases on remand for trial and to issues of law, not questions of fact.

The doctrines of res judicata and collateral estopple were inapplicable. Appellant failed

to preserve her complaint for appellate review and did not offer any evidence to support these a

affirmative defenses. She did not have any pleadings to support such defenses. Lastly, assuming

the court allows an appellate review notwithstanding these defects, then even so the facts of

this 2016 case would show that the pertinent facts are not virtually identical as the 7-year-old

2010 bankruptcy trial or the 6-year-old 2011 Kaelin trial.

The trial court did not err in awarding attorney’s fees for an appeal. Under the

Declaratory Judgments Act law a trial court has the discretion to award fees to a prevailing

party or a non-prevailing party.

8

VIII. ARGUMENT AND AUTHORITIES FOR ISSUE ONE

A. The trial court did not did not abuse its discretion in ordering that Appellee could not use any evidence not disclosed in response to written discovery and prohibiting her from testifying.

The Final Judgment states:

“The court grants Plaintiff’s Motion for Sanctions and orders that Defendant may not offer any testimony or other evidence not disclosed in the referenced written discovery to which she failed to answer.”

(CR pg. 161)

The court followed the law so therefore could not have abused its discretion. “When a party

fails to make, amend, or supplement a discovery response in a timely manner, sanctions are

appropriate. TEX.R. CIV. P. 193.6(a). The exclusion of the evidence is the sole remedy for not

timely supplementing discovery.” See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914

(Tex.1992). The sanctions remedy is mandatory and automatic. See id.

B. The trial court did not abuse its discretion in striking Appellee’s pleadings as sanctions for abuse of discovery and for failures to comply with its docket control orders.

Inadequate Appellate Record

“When an appellant does not file a complete reporter's record or comply with the rules for

designating a partial reporter's record, appellate courts will presume that the omitted record

supports the trial court's order. Haut v. Green Café Mgmt., Inc., 376 S.W.3d 171, 180 (Tex.

App.—Houston [14th Dist.] 2012, no pet.); Sandoval v. Comm'n for Lawyer Discipline, 25

9

S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).” S. Mitchell v.

American Home Mortgage Servicing, Inc., 13-12-00649-CV, (Tex.App. -- Corpus Christi-

Edinburg, 9-12-13)

In the case before this court the Final Judgment appealed specifically recites as a

basis for the court’s decision --

“Additionally, Defendant [McKeithan] has demonstrated a history and pattern of discovery abuses in not only this cause of action but the related case (Cause No: 09-2260-B, 117th Judicial District Court, Nueces County, Texas) from which this case was severed.”7

yet Appellant failed to bring to this court the record of those proceedings. Thus, there is a

presumption that the omitted record supports the trial court's ruling. See, Tex. R. App. P.

34.6(a)(1); 34.6(b)(1) and 34.6(c)(1).

The Law of Sanctions

The trial court may impose the sanction of dismissing a case with prejudice for abuse of

the discovery process. Tex.R.Civ.P. 215.2(b)(5), 215.3. “We review a trial court's ruling on a

motion for sanctions for abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.

2004). In determining whether a sanction is just, we independently review the entire record.

Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006)(per curiam)” S. Mitchell

v. American Home Mortgage Servicing, Inc., 13-12-00649-CV, (Tex.App. -- Corpus Christi-Edinburg, 9-12-13).

The trial court did not abuse its discretion in striking Appellant’s pleadings. As the

7 CR pg. 161

10

statement of facts demonstrate, Appellant cannot claim, nor did she, that she had any

explanation or excuse for the intentional refusals to comply with written discovery requests and

did not ever offer any reason why she failed to submit to being deposed – not just once, but

twice8 – the second deposition date and time being court ordered.

“It seems clear that an "abuse of discretion" can be found only where the judgment under review is so palpably and grossly violative of fact and logic that it evidences not exercise of will but perversity of will, not exercise of judgment but defiance of judgment, not exercise of reason but rather a display of passion or bias. Discretion is abused where the action is unreasonable, unconscionable and arbitrary and is taken without proper consideration of the facts and the law.

In Interest of W.E.R, 663 S.W.2d 887 (Tex.App. —San Antonio 1983), rev’d on other grounds, In Interest of W.E.R., 669 S.W.2d 716 (Tex. 1984)

As this court ruled in S. Mitchell case, supra, with a fact pattern similar to McKeithan’s

behavior: “We have reviewed the entire record, and it is evident that the Mitchells did not simply ignore their discovery obligations; they consistently refused to obey almost every directive of the trial court. The trial court expressly ordered the Mitchells to do three things before a certain deadline: (1) give written responses to AHMSI's discovery questions, (2) give depositions, and (3) pay $36,000 into the court registry. It is uncontested that the Mitchells did not respond to discovery until sometime after the deadline, never gave depositions, and never paid money into the registry. The record reflects that the Mitchells did not inform the trial court of any reason that they were unable to timely comply with the orders, request relief from any of the orders, or challenge any of the orders on appeal. Furthermore, the

8 In fact, McKeithan failed to submit to being deposed four times, twice in the prior case from which this case was severed and in this case. In both cases McKeithan was twice court-ordered to appear after failing to appear by notice but yet she still refused to do so with no explanation why not.

11

record is devoid of any explanation for the Mitchells' behavior . . .” [emphasis supplied]

S. Mitchell v. American Home Mortgage Servicing, Inc., 13-12-00649-CV, (Tex.App. -- Corpus Christi-Edinburg, 9-12-13).

“In determining whether to impose death penalty sanctions, the trial court is not limited to considering only the specific violation for which sanctions are finally imposed, but may consider everything that has occurred during the history of the litigation. Allied Res. Corp. v. Mo-Vac Serv. Co., Inc., 871 S.W.2d 773, 775 (Tex.App.-Corpus Christi 1994, writ denied); see Schmitt v. Bordelon, 844 S.W.2d 273, 278 (Tex.App.-Fort Worth 1992, writ denied) (citing Braden v. S. Main Bank, 837 S.W.2d 733, 737 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (concluding that the trial court may consider action taken in another court when that action is relevant to the case pending before the trial court)).”

Buck v. Estate of Buck, 291 S.W.3d 46 (Tex. App -- Corpus Christi-Edinburg, 2009) Thus, the court can rationally conclude that Appellant who completely disregarded the duty to follow courts’ discovery and disclosure requirement rules 12 times9 between 2009 through 2016, including failing to attend four depositions two of which were court ordered, and after having had four bankruptcy cases dismissed for either failing to disclose her assets or lying multiple times about them “justifies the presumption that the claim or defense lacks merit.” Buck, supra. In response to Appellant’s complaint that the trial court did not first attempt to get Appellant to comply with discovery by ordering a lesser sanction, she fails to recognize the trial

9 Those being two sets of Requests for Production, two sets of Requests for Disclosures, two sets of Interrogatories and two sets of notices to inspect the property.

12

court did just that when the court twice ordered Appellant to appear10 to be deposed and she failed

to appear and gave no excuse or reason why she did not. Had Appellant been deposed the

information obtained could have elicited evidence regarding whether she had a homestead or

abandoned the Corpus Christi residence as a homestead and the fact that she assigned an interest

in the property to secure a consumer debt which would have also be evidence of homestead

abandonment.

Given the history of litigation abuse in this court and others, the trial court did not have to enter yet another order compelling Appellant to produce documents in response to requests for production, answer interrogatories and requests for disclosures which would have delayed trial and disrupted the court’s docket. The trial court could rationally conclude Appellant would ignore further orders as she had ignored all other prior orders of the court. Lastly had Appellant complied with the notice of an inspection of the house this would have revealed whether she had lived in it or abandoned it. Judge Watts had had enough of Appellant’s shenanigans and recited the history of McKeithan’s abuse of the discovery rules stating:

“This is as close to what I would call an abusive process in a litigation matter as I have seen on my stance on the bench. I'm not saying that everything that Mr. Condit is claiming is true, I just know there's a process and there has been a repeated attempt to scuttle, undermine the process. I personally set your deposition for a date and time and made an order, and that was the second time the deposition was set, and once again you failed to attend. You have not answered discovery, you have not followed the rules of civil procedure with regards to depositions and appearances at the same. Like I say, this is as much

10 See, McKeithan vs. Condit, No. 13-10-00226-CV (Tex.App. -- Corpus Christi-Edinburg)(mem. op., 12-19-2013) (pet. denied); (RR Vol. 2, pp. 10-14; CR 145-159)

13

abuse of process I think I can see in a litigation matter. I am, ma'am, going to grant the request for sanctions, which, by the way, is not the first motion for sanction that was filed from this matter or in the severed cause of action. And I am finding that the discovery was ignored, there was no filings of leave, or extensions, or a time to answer the discovery, it was just ignored. The notices of deposition, ignored. Mr. Condit appears with a court reporter and a date and time certain, and nobody shows up. And then he filed a motion to compel, and I set a date and time certain for a deposition, and that was ignored as well. No responses to request for production. I did a docket control order with regards to two trials, but at least one trial in this 2015 severed cause of action, and all of those deadlines with regards to preparation for trial went unresponded to. There was no exchange of trial exhibits from Ms. McKeithan, there was no exhibits, there was no proposed charge, any of the trial documents that were required under the DCO were completely and systematically ignored, and once again prior to the September 21st, 2015 jury trial on the -- I think it was three days prior this time, there was another bankruptcy filing. I have witnessed three attorneys come in representing Ms. McKeithan, and again they resigned or filed motions to withdraw, usually in a timely base to avoid deadlines and trials. You failed to attend, which is a required attendance, the status plea deadline in front of me according to the docket control orders, and you did not attend the docket call. And, of course, you didn't attend the trial on September 21st, because you had filed another bankruptcy petition. I think all the requisites for this sanction have been satisfied according to the directions that the Court of Appeals has given us in these matters for sanctions, and I am going to strike your pleadings with regards to any requests or -- requests for relief for this Court, and I am going to exclude you from testifying with regards to any evidence that relates to and/or was not disclosed in answering requests for disclosure, notices for inspection, and requests for production.”

(RR, Vol. 2, pp. 25-28)

It begs the question, what else could a trial court do? There was nothing else the trial court could do but to conclude that McKeithan’s defenses lacked merit. See, Buck, supra.

14

Effect of Appellant’s Pleadings Being Struck

Appellant's pleadings were justifiably struck because of repeated discovery abuses.

Therefore, the effect of having no pleadings is that the court renders judgment on Appellee's

pleadings establishing that the property at issue is not Appellee’s homestead. When a defendant

does not have an answer, all allegations of facts -- including those establishing liability -- in the

plaintiff's petition are deemed admitted except for the amount of unliquidated damages.

Paradigm Oil, Inc. v. Retamco Opertators, Inc., 372 S.W.3d 177, 183 (Tex. 2012).

TRCP 239 states. ". . . [A]t any time after a defendant is required to answer, the plaintiff

may . . . take judgment by default against such defendant if he has not previously filed an answer,

and provided that the citation with the officer’s return thereon shall have been on file with the

clerk for the length of time required . . . .”

IX. ARGUMENT AND AUTHORITIES FOR ISSUE TWO

The trial court did not err in determining that it was Appellant’s Burden of Proof to Establish the Property Was Appellant’s homestead.

The first argument Appellant asserts is that because there had already been an adjudication that the property was Appellant’s homestead in other related cases it was Appellee’s burden of proof to prove it had been abandoned and thus not her homestead. The unobjected to applicable law the court was presented to apply at the time of trial took place in the following conversation: THE COURT: And the burden, if I'm correct, under the law is for Ms. McKeithan to prove that this is her homestead; is that correct?

15

MR. CONDIT: Yes, ma'am. The law is clear since I think the 40's, that the person claiming homestead exemption has the burden of proof to do such a thing. THE COURT: All right.11 (RR Vol 2, pg. 29).

Failed to Preserve Complaint for Review Tex. R. App. P. 33.1 requires that, as a prerequisite to presenting a complaint on appeal,

11 During August 2015 Appellant filed a Motion for Summary Judgment in the prior case which is where this

law derived. It stated:

“1. There are three issues before the court:

a. Whether the property located at 5401 Flynn Parkway, Corpus

Christi, Texas is Defendant’s residence;

b. Whether the property is Defendant’s homestead; and if so,

c. Whether Defendant has abandoned its homestead character.

2. There is no evidence that the property is Defendant’s principal residence and as such she cannot claim an homestead exemption. 3. A homestead designation is only available if the residence is that person’s principal residence. [emphasis added] Tex. Tax Code Ann. § 11.13(a), (j), (l) (Vernon 2008). 4. The burden of proof is on the one who is claiming a homestead to first prove it is their primary residence. “The plea of homestead is an affirmative defense, and the claimant bears the initial burden of proving the existence of the homestead. See Burk Royalty Co. v. Riley, 475 S.W.2d 566, 568 (Tex. 1972); Watson v. Tipton, 274 S.W.3d 791, 800 (Tex. App.--Fort Worth 2008, pet. denied).” [emphasis added] Drake Interiors, LLC v. Thomas, 433 S.W.3d 841, 848 (Tex.App.-Houston 2014) 3. "The term "residence" has been construed as the place where one actually lives or has his home. Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex.1999); Malnar v. Mechell, 91 S.W.3d 924, 928 (Tex.App.-Amarillo 2002, no pet.). "Residence" connotes a home and a fixed place of habitation to which one returns when away. Owens Corning, 997 S.W.2d at 571." [emphasis added] Dickey v. McComb Development Co., Inc., 115 S.W.3d 42 (Tex.App.—San Antonio 2003) 5. "To sustain a homestead claim, there must be proof of overt acts of homestead usage and intent on the part of the owner to claim the land as homestead." [emphasis added] Stewart v. Clark, 677 S.W.2d 246, 250 (Tex.App.-Corpus Christi 1984, no writ).” (Appendix F)

16

the record must show that "the complaint was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint" and that " the trial court . . . ruled on the . . . objection . . . either expressly or implicitly . . . TEX.R.APP. 33.1. “. . . an objection made at trial must mirror the contention on appeal or the point of error will be waived. fn26. See, Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997); Doyle v. State, 24 S.W.3d 598, 602 (Tex. App.-Corpus Christi 2000, pet. ref'd).” Thomas vs. State of Texas, Case No. 13-04-573-CV, (Tex.App. – Corpus Christi-Edinburg, 5- 17-07)(mem. op.) [emphasis supplied] Nowhere in the record does it show that Appellant timely preserved this alleged error of “burden of proof shifting” for appellate review. Appellant never brought to the trial court’s attention at any hearing, at trial or in her motion for new trial the contention that she attempts to raise for the first time on appeal that it was Appellee’s burden of proof to disprove homestead by proving abandonment and that Appellant did not have to prove homestead. Appellant only presented to the trial court post-trial that because a prior court had determined the property to be Appellant’s homestead the law of case doctrine prohibited any other court from ruling otherwise. (See, Motion for New Trial, CR 168, pg. 2-3) Never at any time was the theory she asserts for the first time on appeal now presented before or during trial to the trial court and obtained a ruling that it was Appellee’s burden to prove abandonment. It is well-settled law, “In order for an issue to be preserved on appeal, there must have been

17

a timely and specific objection raised at trial. The objection made at trial must mirror the

contention on appeal or the issue will be waived. Fn.12: See Santellan v. State, 939 S.W .2d 155,

171 (Tex. Crim. App. 1997); Doyle v. State, 24 S.W .3d 13 598, 602 (Tex. App.–Corpus Christi

2000, pet. ref’d).” In The Interest of D.A.H., 13-07-444-CV (Tex.App. – Corpus Christi-

Edinburg, 8-27-08) No Pleadings

The law of the case doctrine is an affirmative defense that under Tex.R.Civ.P. 94 was

required to be plead and because Appellant’s pleadings were struck no such defense could have

been asserted. “The burden of proof is on the one who is claiming a homestead to first prove it

is their primary residence. “The plea of homestead is an affirmative defense, and the claimant

bears the initial burden of proving the existence of the homestead. See Burk Royalty Co. v.

Riley, 475 S.W.2d 566, 568 (Tex. 1972); Watson v. Tipton, 274 S.W.3d 791, 800 (Tex. App.—

Fort Worth 2008, pet. denied).” [emphasis added] Drake Interiors, LLC v. Thomas, 433 S.W.3d

841, 848 (Tex.App.-Houston 2014)

TRCP 94 mandates that to assert a defense of res judicata or “. . . any other matter

constituting an avoidance or affirmative defense” such must be plead.

No Evidence

No evidence was presented or offered at trial to support any conclusion that there had

been any determination that the property had any homestead status.

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X. ARGUMENT AND AUTHORITIES FOR ISSUE THREE

The trial court did not err in its ruling that the property was not Appellant’s homestead because the law of the case doctrine did not apply.

What Appellant wants this court to do is to try this case anew in the appeals court. For the

first time on appeal she is requesting this court to apply a different burden of proof than what

was applied in the trial court. She is now contending, for the first time on appeal, that she did

not have to prove homestead.

First Response: Appellant had her pleadings stricken and thus Appellee’s allegations

could only have been accepted as true and uncontested. See above, Effect of Appellant’s

Pleadings Being Struck.

Second Response: No evidence was presented at trial to support any prior determination

that the property had been previously determined to have an homestead status.

Third Response: Appellee failed to timely preserve this complaint for review. See

above, Failed to Preserve Complaint for Review.

Fourth Response: No case law authority has ever held that because of a prior determination

of homestead one claiming such in a subsequent trial where it is contested the one claiming

homestead does not have to prove it. In fact the law is exactly opposite from this contention.

The Law Of Homestead

A homestead designation is only available if the residence is that person’s principal

residence. [emphasis added] Tex. Tax Code Ann. § 11.13(a), (j), (l) (Vernon 2008).

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The burden of proof is on the one who is claiming a homestead to first prove it is their

primary residence. “The plea of homestead is an affirmative defense, and the claimant bears

the initial burden of proving the existence of the homestead. See Burk Royalty Co. v. Riley,

475 S.W.2d 566, 568 (Tex. 1972); Watson v. Tipton, 274 S.W.3d 791, 800 (Tex. App.--Fort

Worth 2008, pet. denied).” [emphasis added] Drake Interiors, LLC v. Thomas, 433 S.W.3d 841,

848 (Tex.App.-Houston 2014)

"The term "residence" has been construed as the place where one actually lives or has

his home. Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex.1999); Malnar v. Mechell, 91

S.W.3d 924, 928 (Tex.App.-Amarillo 2002, no pet.). "Residence" connotes a home and a

fixed place of habitation to which one returns when away. Owens Corning, 997 S.W.2d at

571." [emphasis added] Dickey v. McComb Development Co., Inc., 115 S.W.3d 42 (Tex.App.—

San Antonio 2003)

"To sustain a homestead claim, there must be proof of overt acts of homestead usage

and intent on the part of the owner to claim the land as homestead." [emphasis added] Stewart v.

Clark, 677 S.W.2d 246, 250 (Tex.App.-Corpus Christi 1984, no writ).”

Appellee’s 3rd Amended Petition filed on March 10, 2015 contested the homestead status

claim of Appellant:

“9. Homestead claim: Defendant claims property she owns on Flynn Parkway in Corpus Christi, Nueces County Texas is her homestead and thus exempt from any liens or execution to pay the debt she owes Plaintiff. Plaintiff claims it is not her homestead. Plaintiff seeks a declaratory judgment that the property is not her homestead property because it is not her residence, she has alienated an interest to it for an unrelated consumer

20

debt and/or she has abandoned it as her homestead. Plaintiff seeks a declaratory judgment that the property is not her homestead.”

(CR pg. 8)

Thus the issue was joined and Appellant had the burden of proof.

Law of The Case Doctrine

First Response: Appellee did not timely assert the application of this doctrine at trial

and so has failed to preserve this complaint for appellate review. See above, Failed to Preserve

Complaint for Review.

Second Response: Appellant had her pleadings struck and thus Appellee’s allegations



Third Response: No evidence was presented at trial to support any determination


Appellee vaguely claims the law of case doctrine applies. (Appellant’s brief, pg. 39)

No case was found – not even remotely applicable – where a court applied the law of the

case doctrine wherein a party maintains that once a determination of homestead has been made

property can never be abandoned or if alienated such act could never change the homestead

character of it.

21

Appellee did not and has not challenged any issue of law that was decided by a Texas

court – or even the bankruptcy court. As Appellee herself admits the law of the case doctrine

only applies to questions of law not facts.

The doctrine could not possibly apply because the pertinent facts were not substantially

the same in the three cases – the 2010 bankruptcy case, the 2011 Kaelin case and this 2016 state

court case. This case is not the same case as the bankruptcy or Kaelin cases – there is no

“subsequent stage” of this case that is either being re-tried on remand from an appellate court or

remanded for a modification of a final judgment. This 2016 case is an entirely new case.

“Under the "law of the case" doctrine, a decision rendered in a former appeal of a case is generally binding in a later appeal of the same case. In re Assurances Generales Banque Nationale, 334 S.W.3d 323, 325 (Tex. App.- Dallas 2010, orig. proceeding); see In re Henry, 388 S.W.3d 719, 727 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding [mand. denied]); Truck Ins. Exch. v. Robertson, 89 S.W.3d 261, 264 (Tex. App.-Fort Worth 2002, no pet.). Having decided an issue previously, a court of appeals is not obligated to reconsider the matter in subsequent appeals. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012); see also In re Henry, 388 S.W.3d at 727; In re Assurances Generales Banque Nationale, 334 S.W.3d at 325; Woods v. VanDevender, 296 S.W.3d 275, 279 (Tex. App.-Beaumont 2009, pet. denied) (all citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)). It may do so in its own discretion, however, and there is not an absolute bar to reconsideration if subsequent hearings, briefing, or pleadings have modified the facts or relief sought. See Briscoe, 102 S.W.3d at 716–17. When, however, the issue is really one of law, our discretion to revisit the issue will be used sparingly, if at all. See, e.g., In re Henry, 388 S.W.3d at 728; City of Dallas v. Jones, 331 S.W.3d 781, 784–85 (Tex. App.-Dallas 2010, pet. dism'd). [emphasis supplied]

City of Aledo v. Brennan, 02-14-00147-CV, 02-14-00153-CV (Tex.App. – Ft.Worth, 2006).

In Aledo, the case was re-tried on remand and appealed the second time to the same court.

22

XI. ARGUMENT AND AUTHORITIES FOR ISSUE FOUR

The trial court did not err in its ruling that the property was not Appellant’s homestead because the doctrine of res judicata and collateral estopple did not apply.

First Response: Appellee did not timely assert the application of these two doctrines at

trial or in her motion for new trial so has failed to preserve this complaint for appellate review.

Appellee also never spoke the words res judicata or collateral stopple in the motion for new

trial hearing. (RR Vol. 3)See above, Failed to Preserve Complaint for Review.

Second Response: Appellant had her pleadings struck and thus Appellee’s allegations



Third Response: No evidence was presented at trial to support any determination


The Law of Res Judicata and Collateral Estoppel

Under Texas law, "[r]es judicata is a generic term for the related concepts of claim

preclusion (res judicata) and issue preclusion (collateral estoppel)." Whallon v. City of Houston,

462 S.W.3d 146, 155 (Tex.App.-Houston [1st Dist.] 2015)

“. . . . res judicata is an affirmative defense that must be pleaded. Tex. R. Civ. P. 94; Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165, 173 (Tex.App.--Houston [1st Dist.] 2012, pet. denied). As such, unlike subject-matter jurisdiction, res judicata is subject to waiver. E.g., Green v. Parrack, 974 S.W.2d 200, 202 (Tex.App.--San Antonio 1998, no pet.) ("Generally, res judicata must be pled or be waived" ); Green v. Doakes, 593 S.W.2d 762, 764 (Tex.Civ.App.--Houston [1st Dist.] 1979, no writ) ("If the facts had given rise to a plea of res judicata, appellant has waived

23

such by failing to affirmatively plead this defense in accordance with Rule 94, T.R.C.P." ).

Here, the affirmative defense of res judicata was neither pleaded nor raised in the trial court. Because it was waived at the trial court, it may not be raised for the first time on appeal.”

Whallon at 155, supra.

Appellant had no pleadings asserting this affirmative defense.

“Res judicata, also known as claim preclusion, prevents the relitigation of a claim or cause of action that was adjudicated and resolved by a final judgment, as well as all related matters that with the use of diligence could or should have been litigated in the prior suit. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007); State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); MGA Ins. Co. v. Charles R. Chesnutt, P.C., 358 S.W.3d 808, 816 (Tex.App.--Dallas 2012, no pet.). Texas follows the transactional approach to res judicata. See Miller, 52 S.W.3d at 696; Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex. 1992). The transactional approach results in claim preclusion if a defendant does not bring as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the opposing party's suit. Miller, 52 S.W.3d at 696; Barr, 837 S.W.2d at 630.

Res judicata is an affirmative defense. Tex. R. Civ. P. 94. In relying on the affirmative defense of res judicata, appellees had the burden to prove: (1) a prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Joachim, 315 S.W.3d at 862; Dolenz v. Vail, 293 S.W.3d 842, 845 (Tex.App.--Dallas 2009, pet. denied).” [emphasis supplied]

Hill v. Tx-An Anesthesia Management LLP, 443 S.W.3d 416 (Tex.App.-Dallas 2014)

If the court decides to allow the assertion of this unplead defense, and if the court

decides to base a decision on documents not admitted as evidence, then even so the facts of this

24

2016 case would show that the pertinent facts are not virtually identical as the 2010 bankruptcy

trial or the 2011 Kaelin trial.

The issue before the 2010 bankruptcy court was whether Defendant abandoned the

homestead character of the property. The 2016 issues at trial before this court, as plead, was

subsequent to 2010:

a. Property not Defendant’s residence;

b. That Defendant alienated an interest in the property for a consumer debt12; and

c. Whether since 2010 Defendant abandoned the property.

(CR pg. 8, Appellee’s 3rd Amended Petition)

It was Defendant’s burden of proof to establish that the property was her residence. She

did not do so. Had she done so, then Appellant’s burden of proof would have established an

alienation of the property and/or that she had abandoned it after 2010.

XII. ARGUMENT AND AUTHORITIES FOR ISSUE FIVE

The trial court did not err in awarding attorney’s fees for an appeal.

The Declaratory Judgments Act, Texas Civil Practice & Remedies Code § 37.009,

provides that a Court may award reasonable and necessary attorney’s fees as are equitable and

just.” Consequently, the Act entrusts attorney fee awards to the trial court’s sound discretion,

subject to the requirements that any fees awarded be reasonable and necessary, which are

matters of fact, and to the additional requirements that the fees be equitable and just, which are

12 Homestead property can lose its homestead status through abandonment, death or alienation. Majeski v. Estate of Majeski, 163 S.W.3d 102, 107 (Tex. App. – Austin 2005, no pet) (See also, Ex. C, pg. 2 of Def’s. MNT.)

25

matters of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). This Act “does not require

an award of attorney’s fees to the prevailing party.” Id. at 20 (emphasis added). Further, the

statute gives discretion to the trial court “whether to award attorney fees or not.” Id. at 20.

The two standards imposed on trial courts in awarding fees under the Act are whether the

award is: (1) equitable, and (2) just. Id. Whether the award is equitable and just is measured by

an abuse of discretion standard. Id. at 21.

Under the law a court may deny fees even to a prevailing party. Second, even if a party

wins, a non-prevailing party may be awarded its fees. See Carpenter v. Carpenter, No. 02-10-

00243-C, 2011 WL 5118802 at *8 (Tex. App.—Fort Worth Oct. 27, 2011, pet. denied) (mem.

op.) (“this court has repeatedly noted that a trial court has the discretion in a declaratory

judgment proceeding to award fees to the non-prevailing party) (citing City of Willow Park

Bryant, 763 S.W.2d 506, 511 (Tex. App.—Forth Worth 1988, no writ) and numerous other

cases in footnote 44).

“In the exercise of its discretion in a declaratory judgment action, the trial

court may award attorney's fees to the prevailing party, may decline to

award attorney's fees to either party, or may award attorney's fees to the

nonprevailing party, regardless of which party sought declaratory relief.”

W. Fireworks v. Southwest Royalties, Inc., 11-11-00262-CV, (Tex.App. –

Eastland, October 24, 2013)

Thus, the trial court in following established law exercised its discretion in awarding

appellate fees to Appellee whether he prevailed in the appellate court or not and did not abuse

26

its discretion.

XIII. PRAYER FOR RELIEF

Appellee prays the court:

1. Affirm the trial court's judgment in whole; alternatively2. Affirm the trial court's judgment in part; alternatively3. Remand for a new trial, and

Award him costs of court.

By___________________, pro se State Bar No. 04656525

Law Office of Bradford M. Condit 401 N. Tancahua Corpus Christi, Texas 78401 Voice: (361) 884-2075 Fax: (361)884-2077

Bradford M. Condit

27

XIV. CERTIFICATE OF COMPLIANCE

Pursuant to Tex.R.App.P. 9.4(i)(3) the number of words in Appellee's computer generated brief totals 7,669 which is the word count of the computer program used to prepare the document.

/s/ Bradford M. Condit

XV. Certificate of Service

On September 8, 2017, the foregoing document was served by e-filing on:

Ms. Leslie A. Werner Fax: 361-485-1949

[email protected]

______________________ Bradford Condit, pro se Bradford M. Condit

28

Appendix





Appendix E: 5-06-16 5th case dismissed with prejudice due to bad faith and lying

Appellant’s August 2015 Motion for Summary Judgment Appendix F:

Appendix G: Appellant's 5th Circuit Brief exposing the made-up facts of the bankruptcy court and ignored by the 5th Circuit

UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

ORDER EVIDENCING AUTOMATIC DISMISSAL OF CHAPTER 7 CASE OF INDIVIDUAL DEBTOR(S)

PURSUANT TO 11 U.S.C. §521(i)(1)

On January 28, 2009, (the “Petition Date”), Marilyn McKeithan , the Debtor(s) in the above-referenced bankruptcy case, filed a voluntary petition seeking relief under chapter 7 of Title 11, UnitedStates Code. Among the various duties imposed upon the Debtor(s) as a result of that voluntary filingwas the duty to file certain documents enumerated in §521(a)(1) of the Bankruptcy Code. Because, upon proper review, the Debtor(s) have failed to file all documents required by §521(a)(1) on or before the 45th day after the Petition Date, an automatic dismissal of the above-referenced case on the 46th day after the Petition Date has been triggered pursuant to §521(i)(1) of the Bankruptcy Code. In order to evidence this automatic occurrence, the Court finds that just cause exists for the entry of the followingorder.

IT IS THEREFORE ORDERED that the above-referenced Chapter 7 case is DISMISSED, effective as of March 17, 2009.

IN RE: Marilyn McKeithan 4343 Lazy Creek Drive Tyler, TX 75707 SSN: XXX-XX-5107

Debtor(s)

Case No. 09-60073 bp Chapter: 7

03/17/2009Signed on

THE HONORABLE BILL PARKERCHIEF UNITED STATES BANKRUPTCY JUDGE

EOD 03/17/2009

Case 09-60073 Doc 15 Filed 03/17/09 Entered 03/17/09 14:22:23 Desc Main Document Page 1 of 1

EX. A

UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

ORDER EVIDENCING AUTOMATIC DISMISSAL OF CHAPTER 13 CASE OF INDIVIDUAL DEBTOR(S)

PURSUANT TO 11 U.S.C. §521(i)(1)

On March 23, 2009, (the “Petition Date”), Marilyn McKeithan , the Debtor(s) in the above-referenced bankruptcy case, filed a voluntary petition seeking relief under chapter 13 of Title 11, United States Code. Among thevarious duties imposed upon the Debtor(s) as a result of that voluntary filing was the duty to file certain documentsenumerated in §521(a)(1) of the Bankruptcy Code. Because, upon proper review, the Debtor(s) have failed to file alldocuments required by §521(a)(1) on or before the 45th day after the Petition Date, an automatic dismissal of theabove-referenced case on the 46th day after the Petition Date has been triggered pursuant to §521(i)(1) of the Bankruptcy Code. In order to evidence this automatic occurrence, the Court finds that just cause exists for the entry ofthe following order.

IT IS THEREFORE ORDERED that the above-referenced Chapter 13 case is DISMISSED, effective as of May 8, 2009 (46th day).

IN RE: Marilyn McKeithan 4343 Lazy Creek Drive Tyler, TX 75707 SSN: XXX-XX-5107

Debtor(s)

Case No. 09-60251 bp Chapter: 13

05/08/2009Signed on

THE HONORABLE BILL PARKERCHIEF UNITED STATES BANKRUPTCY JUDGE

EOD 05/08/2009


EX. B

EX. C

IN THE UNITED STATES BANKRUPTCY COURTFOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

IN RE: §§

MARILYN McKEITHAN § Case No. 10-60825xxx-xx-5107 §4343 Lazy Creek Dr, Tyler, TX 75707-1563 §

§ Debtor § Chapter 7

BRADFORD M. CONDIT §§

Plaintiff §§

v. § Adversary No. 10-6030§

MARILYN McKEITHAN §§

Defendant §

JUDGMENT DENYING DISCHARGE

This action, having been tried by the Court, and a decision having been duly

rendered that, for the reasons stated into the record on this date, judgment should be

entered in favor of the Plaintiff and against the Defendant,

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the

discharge of the Defendant-Debtor, Marilyn McKeithan, is DENIED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of

Court shall give notice of the entry of this judgment pursuant to the provisions of FED. R.

BANKR. P. 4006.

THE HONORABLE BILL PARKERUNITED STATES BANKRUPTCY JUDGE

Signed on12/27/2011

EOD 12/27/2011


EX. D

1 / 1

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

IN RE: §

§

§

§

§

§

§

CASE NO: 15-20360

MARILYN D. MCKEITHAN; aka

CAMPBELL MCKEITHAN; aka

CAMPBELL

CHAPTER 7

Debtor(s). DAVID R. JONES

ORDER DISMISSING CASE WITH PREJUDICE

On May 4, 2016, the Court conducted a hearing in Adversary No. 15-20360 regarding the

the hearing, the Court made findings and conclusions on the record pursuant to Bankruptcy Rule

7052. Specifically, the Court found that (i) the instant bankruptcy case

bankruptcy case; (ii) the instant bankruptcy case was filed in bad faith; (ii) the Debtor has

repeatedly failed to exhibit the qualities of honesty and transparency required of a debtor in

y counsel repeatedly misrepresented facts to the

Court. In addition to the findings and conclusions set forth on the record, the Court finds that

this bankruptcy case serves no legitimate purpose. Accordingly, it is

ORDERED THAT:

1. This case is dismissed with prejudice.

2. The Debtor is prohibited from filing another bankruptcy case in the Southern

District of Texas for a period of two years from the date of this order without first filing a written

motion setting forth sufficient cause and obtaining the written permission of the chief bankruptcy

judge for the Southern District of Texas.

3. Adversary Proceeding Nos. 15-2018 and 15-2020 are dismissed without

prejudice.

4. A copy of this order shall be filed in each adversary proceeding.

SIGNED: May 6, 2016.

___________________________________

DAVID R. JONES

UNITED STATES BANKRUPTCY JUDGE

ENTERED

05/06/2016

Case 15-20360 Document 74 Filed in TXSB on 05/08/16 Page 1 of 2

Ex. E

United States Bankruptcy CourtSouthern District of Texas

In re: Case No. 15-20360-drjMarilyn D. McKeithan Chapter 7

DebtorCERTIFICATE OF NOTICE

District/off: 0541-2 User: dsta Page 1 of 1 Date Rcvd: May 06, 2016Form ID: pdf001 Total Noticed: 9

Notice by first class mail was sent to the following persons/entities by the Bankruptcy Noticing Center onMay 08, 2016.db +Marilyn D. McKeithan, 4343 Lazy Creek Dr., Tyler, TX 75707-15639226640 +Bradford M. Condit, 401 N. Tancahua St., Corpus Christi, TX 78401-27369226641 +Dane Heindel, 407 E. 4th St., Tyler, TX 75701-32169226642 +Linebarger Goggan Blair & Sampson, LLP, P.O. Box 17428, Austin, TX 78760-74289226643 +Marilynne McKeithan, 4343 Lazy Creek Dr., Tyler, TX 75707-15639226644 +Nueces County Tax Assessor, P.O. Box 2810, Kevin Kieschnick,

Corpus Christi, TX 78403-28109232164 +NuecesCounty, c/o Diane W. Sanders, Linebarger Goggan Blair & Sampson, LLP,

P.O. Box 17428, Austin, TX 78760-74289226645 State Farm, P.O. Box 44110, Fort Worth, TX 761169226646 +Stidger Law Firm, PLLC, 6750 Locke Avenue #201, Allen L. Stidger,

Fort Worth, TX 76116-4196

Notice by electronic transmission was sent to the following persons/entities by the Bankruptcy Noticing Center.NONE. TOTAL: 0

***** BYPASSED RECIPIENTS (undeliverable, * duplicate) *****cr Bradford Condit, 401 N. Tancahuacr Nueces County

TOTALS: 2, * 0, ## 0

Addresses marked ’+’ were corrected by inserting the ZIP or replacing an incorrect ZIP.USPS regulations require that automation-compatible mail display the correct ZIP.

Transmission times for electronic delivery are Eastern Time zone.

I, Joseph Speetjens, declare under the penalty of perjury that I have sent the attached document to the above listed entities in the mannershown, and prepared the Certificate of Notice and that it is true and correct to the best of my information and belief.

Meeting of Creditor Notices only (Official Form 309): Pursuant to Fed. R. Bank. P. 2002(a)(1), a notice containing the complete SocialSecurity Number (SSN) of the debtor(s) was furnished to all parties listed. This official court copy contains the redacted SSN as requiredby the bankruptcy rules and the Judiciary’s privacy policies.

Date: May 08, 2016 Signature: /s/Joseph Speetjens

_

CM/ECF NOTICE OF ELECTRONIC FILING

The following persons/entities were sent notice through the court’s CM/ECF electronic mail (Email)system on May 6, 2016 at the address(es) listed below:

Allan L Potter on behalf of Defendant Marilyn D. McKeithan [email protected], [email protected];[email protected];[email protected]

Allan L Potter on behalf of Plaintiff Marilyn McKiethan [email protected], [email protected];[email protected];[email protected]

Allan L Potter on behalf of Consolidat-Plaintiff Marilyn McKiethan [email protected], [email protected];[email protected];[email protected]

Allan L Potter on behalf of Debtor Marilyn D. McKeithan [email protected], [email protected];[email protected];[email protected]

Bradford M Condit on behalf of Defendant Bradford Condit [email protected] M Condit on behalf of Creditor Bradford Condit [email protected] M Condit on behalf of Plaintiff Bradford Condit [email protected] M Condit on behalf of Consolidat-Defendant Bradford Condit [email protected] Wade Sanders on behalf of Creditor Nueces County [email protected] P Hanna [email protected], [email protected] P Hanna on behalf of Trustee Kevin P Hanna [email protected], [email protected]

Stephen Douglas Statham on behalf of U.S. Trustee US Trustee [email protected] Trustee [email protected]

TOTAL: 13

Case 15-20360 Document 74 Filed in TXSB on 05/08/16 Page 2 of 2

G

Documents

APPELLEE’S B · Malnar v. Mechell, 91 S.W.3d 924, 928 (Tex.App. -Amarillo 2002, no pet.) . . . . . . . . . 19 . McKeithan vs. Condit, No. 13 -10-00226-CV (Tex.App. -- Corpus Christi