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CAUSE NO. 21-03-03814
MARK ATHANS, IN THE DISTRICT COURT OF
Plaintiff
TERRI C. MENDEZ D/B/A MONTGOMERY COUNTY, TEXAS
LAW OFFICE OF TERRI C.
MENDEZ AND THE MENDEZ
LAW GROUP,
Defendant 457TH JUDICIAL DISTRICT
REPLY TO MARK ATHANS’ RESPONSE TO MENDEZ’S
MOTION FOR SUMMARY JUDGMENT
Defendant, Terri C. Mendez d/b/a Law Office of Terri C. Mendez and The Mendez Law
Group (“Mendez”), files this reply to Plaintiff Mark Athans’ response to her motion for summary
judgment under Texas Rule of Civil Procedure 166a(c) seeking summary judgment on all claims
asserted against her by Mark Athans(“Athans”) , and would respectfully show the Court:
UMMARY OF EPLY
In his response, Athans focuses on Mendez’s failure to plead bigamy in the Divorce and
argues that alleged omission makes Mendez responsible for Athans’ damages. According to
Athans, there is an unbroken connection between the failure to plead bigamy and everything Court
3 did in the Divorce. This argument avoids both the law and the facts. The law is clear. Conduct
that voids a judgment may be raised at any time regardless of the pleadings. Mendez timely raised
bigamy in the Rule 270 motion and motion for new trial. Failing to plead bigamy would not prevent
Court 3 from voiding Athans’ marriage. The facts are also clear. Charity was criminally charged
with bigamy after the Divorce trial Court 3 should have accepted evidence of the criminal charge
and vo the Divorce decree.
IGAMY AY AISED AT NY IME
On page nine of her motion, Mendez predicted, “Athans is likely to argue there is an
unbroken connection because Mendez’s and Court 3’s errors are on the same issue, bigamy, and
Mendez’s failures occasioned or caused Court 3’s errors.” See Motion for Summary Judgment, at
9. That is what Athans has done. Athans argues that because Mendez never pleaded bigamy, the
repeated errors by Judge Patrice McDonald in County Court at Law No. 3, Montgomery County,
Texas (“Court 3”) flowed from Mendez’s alleged pleading error making Mendez responsible for
Athans’ alleged harm
To make this argument, Athans relies on case law requiring a judgment to conform to the
pleadings. Based on the case law presented by Athans, he argues Court 3 lacked the ability to go
back and void the Divorce decree because Mendez never pleaded bigamy. Mendez finds this
argument puzzling because Athans has already successfully argued Court 3 abused its discretion
relying on Charity s argument claiming Mark waived his right to raise a claim of bigamy by
failing to have pleaded the defense before the trial court signed the decree in their divorce; In re
Athans, No. 09 , 2020 WL 1770903, at * (Tex. App. Beaumont Apr. 9, 2020)
(orig. proceeding) In this suit, Athans is recycling the same argument Charity’s attorney sed in
the Divorce; an argumentthe Beaumont Court of Appeals rejected
In another suit, Athans and Mr. Reagan pointed out Charity’s bigamy could be raised at any time because, “A
marriage entered into while one party is married to another person is void from the outset as a matter of law. Phillips
v. The Dow Chemical Co., 186 S.W.3d 121, 127 (Tex. App.Houston [1st Dist.] 20 05, no pet.); Dodd v. Dodd, 17
S.W.3d 714, 716 (Tex. App.Houston [1st Dist.] 2000), disapproved on other grounds, 124 S.W.3d 163 (Tex. 2003);
Villegas v. Griffin Indus., 975 S.W.2d 745, 749 50 (Tex. App.Corpus Christi 1998, pet. denied); Jordan v. Jordan ,
938 S.W.2d 177, 179 (Tex. App. Houston [1st Dist.] 1997, no writ). Such a marriage is absolutely null, having no
force or effect for any purpose, at any place or time, and whose invalidity may be asserted by anyone, at any time,
directly or collaterally. See, e.g., Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. Civ. App.Waco 1949, writ ref’d).
https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=0a553fe0 9d4f 4221
964d60c40c90&coa=coa09&DT=Brief&MediaID=bdf77f17 1e27 447f ab6e 02845de5ecc7 (emphasis added).
Unfortunately for Athans and fortunately for Mendez, the case law on which Athans relies
is irrelevant to the Divorce. The trial court has no discretion to refuse to set aside a void judgment
and has the duty to do so at any time such matter is brought to its attention, with or without a
motion to do so. Bridgman v. Moore, 183 S.W.2d 705, 707 (Tex. 1944) As the Beaumont Court
of ppeals has already explained to Athans’ benefit A claim that a marriage is void from its
inception may [even] be raised in collateral proceedings. To our knowledge, no court has held
that an allegedly void marriage cannot be raised as a defense in a motion seeking to enforce an
allegedly void decree. In re Athans, No. 09 2020 WL 1770903, at *2 (Tex. App.
Beaumont Apr. 9, 2020) (orig. proceeding)(emphasis added).
When Charity purported to marry Athans she was still married to Trevor Hendry. The
marriage to Mr. Hendry would void Charity’s purported marriage to Athans. Mendez brought
Charity’s bigamy up timely in the Rule 270 motion seeking to re open evidence and void the
Divorce decree. Court 3 erred in refusing to grant . Mendez timely bought Charity’s bigamy
a second time in motion for new trial, and Court 3 erred a second time in denying that motion
Court 3 was not done. Athans’ current counsel Mr. Reagan brought Charity’s bigamy again
during motion to enforce after Mendez withdrew. Court 3 again erred by refusing to consider the
evidence of bigamy and void the Divorce decree It was not until Athans mandamused Court 3 that
the Beaumont Court of Appeals pointed out Court ’s error and explained the law allowed evidence
that void Athans’ marriage to be brought up at ANY time. In re Athans, No. 09 CV,
2020 WL 1770903, at *2(emphasis added)
Mendez timely presented bigamy and evidence to support it to Court 3 in the Rule 270
motion and the motion for new trial. Mendez’s failure to plead bigamy did not prevent Court 3
from voiding Athans’ marriage to Charity. Court 3 was required to do so and abused its discretion
when it failed to follow the law on this issue. See idThe erroneous rulings by Court 3 were a
superseding cause of Athans’alleged harm.
THANS GNORES THE URDEN OF ROOF FOR IGAMY
In his response, Athans largely ignores the criminal charge against Charity that w handed
down after the Divorce trialAthans focuses on evidence that did exist at the time of the Divorce
trial and argues Mendez should have timely developed and presented that evidence at the Divorce
trial Athans further argues this other evidence required Court 3 to deny Mendez’s Rule 270 motion
and motion for new trial filed in the Divorce.
Athans presume there was evidence to void his marriage to Charity prior to Charity being
criminally charged with bigamy. However, Athans never once considers th burden of proof to
void a marriage
Under the laws of Texas, a strong presumption prevails in favor of the legality of
marriage. Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S.W. 560, 561,
quotes the following concerning such presumption:
‘Every intendment of law is in favor of matrimony. When amarriage has been
shown in evidence, whether regular or irregular, and whatever the form of
theproofs , the law raises a presumption of its legality, not only casting
theburdenof the proof upon the party objecting, but requiring him throughout and
in every particular plainly to make the fact appear, against the constant pressure of
this presumption, that it is illegal andvoid[’]
Simpson v. Neely, 221 S.W.2d 303, 309 (Tex. Civ. App.Waco writ ref ’d).
Restating that burden in slightly more modern terms:
One of the strongest presumptions of law is that a marriage, once being shown, is
valid. . . . The legal presumption of validity of a second marriage must prevail until
rebutted by evidence which negatives the effective operation of every possible
means by which a dissolution of the prior marriage could have taken place.
Schacht v. Schacht, 435 S.W.2d 197, 201 (Tex. Civ. App.Dallas , no writ
As Mendez’s showed in support of her motion, Charity lied about being married to Trevor
Hendry. In the Divorce trial, Charity also lied about the marriage license between Mr. Hendry and
her. Charity committed perjury when she testified, under oath, it was not her signature on the
marriage license with Trevor HendrySee Exhibit F to Mendez’s motion for summary judgment,
p. 115, ll. 3
When one considers the burden of proof to void a marriage, and adds to that arity’s
perjury, the assumption by Athans that everything would be alright had Mendez pleaded bigamy
fails. Until the criminal charge was handed down by Montgomery County, the evidence to rebut
the presumptive validity of Athans’ South Dakota destination wedding to Charity may have been
lacking. Any such evidence could be reduced through Charity’s lies and Court 3’s apparent belief
that Charity was credible into a “He said, she said” disputein which Charity would prevail
Once the criminal charge came about, it was timely presented to Court 3, twice, by Mendez.
Court 3’s errors in denying the Rule 270 motion, the motion for new trial, and even Athans and
Mr. Reagan’s collateral attack on the Divorce decree in the motion to enforce became the
superseding cause that destroyed any supposed proximate cause between Mendez’s alleged acts
and Athans’ alleged harm
HE RIMINAL HARGE GAINST HARITY ELEVANT AND DMISSIBLE
When Athans finally turns to the criminal charge against Charity, which w not handed
down until after the Divorce trial, Athans argues the criminal charge s not admissible and without
the criminal charge Mendez never presented new evidence to Court 3 to support th Rule 270
motion and motion for new trial. Again, Athans appear to be playing for both sides. Athans now
argues the criminal charge against Charity is not admissible. uring the motion to enforce Athans’
attorneys must have believed very same criminal charge was relevant and admissible because
they presented as part of Athans’ offer of proof. See Athans’ Response to Mendez’s motion for
summary judgment, Exhibit 6, at p. 5 and p. 253 (offering Exhibit R 19, which is described in the
index as Charity’s criminal complaint). hen the Beaumont Court of Appeals granted Athans’
mandamus petition it held, “by refusing to admit the evidence Mark offered to support his defense
that Charity was married to another when they married, the trial court abused its discretion”. In re
Athans, No. 09 00074 CV, 2020 WL 1770903, at *Athans has already obtained a ruling
from the Beaumont Court of Appeals that Charity’s criminal charge is admissible and it would be
an abuse of discretion not to admit it that evidence.
support Athans ew argument that is contrary to the holding in re Athans Athans
relies on a 48 year old case holding an indictment for arson arising out of unrelated events is not
admissible in a wrongful collections case Bank of N. Am. v. Bell, 493 S.W.2d 633, 637 (Tex. Civ.
App.Houston [14 Dist.] 1973, no writ). The Divorce is not wrongful collections case where
the criminal charge concerns unrelated events. The Divorce is family law and the criminal charge
concerns Charity’s marriage to Athans here is ample precedent that evidence of criminal
harge especially for conduct that is at issue in the family proceeding, is relevant even if the
alleged conduct has not resulted in a conviction In re J.W.,113 S.W.3d 605, 612 (Tex. App.
Dallas 2003, pet. denied In re D.M., 58 S.W.3d 801, 814 (Tex. App.Fort W orth 2001, no pet.);
In re S.R., No. 10CV, 2010 Tex. App. LEXIS 9681, at *1112, 2010 WL 4983484
(Tex. App.Waco Dec. 8, 2010, pet. denied) (mem. op.) In re K.L.R.,162 S.W.3d 291, 305 (Tex.
App.Tyler pet.)
The criminal charge against Charity handed down after the Divorce trial. The criminal
charge of bigamy was the new evidence that supported granting a motion to re open the evidence
and granting a motion for new trial, both of which Mendez timely presented and Court 3 erred in
denying. Court 3’s errors in denying the post trial moti are the superseding cause that destroys
any proximate causealleged to flow from Mendez’s work on the Divorce
HE AW IS LEAR ENDEZ IS NTITLED TO UMMARY GMENT
Athans cites Stanfield v. Neubaum several times in his response, but the dicta on which
Athans relies is taken out of context. Athans presumes that because Mendez failed to plead bigamy
and the mandamus was ultimately granted due to bigamy there is an unbroken connection from
one to the other. That is not the holding in Stanfield v. Neubaum
he Court in Stanfield v. Neubaum relied o prior holdings from Texas examining
superseding causes in personal injury cases.As the Texas Supreme Court explained, superseding
cause can destroy the causal connection between the original negligence and the harm, even if the
original negligence is the “but for” cause of the superseding cause.Stanfield v. Neubaum
S.W.3d 90, 99 (Tex. 2016) (citing Bell v. Campbell,434 S.W.2d 117, 12022 (Tex.1968) ). In
discussing what makes the difference between a superseding cause and a concurrent cause, the
Court pointed out nothing short of prophetic ken could have anticipated the happening of the
combination of events by which the original negligence led to an intervening force that resulted
in the plaintiff s injury, the harm is not reasonably foreseeable. Stanfield v. Neubaum, 494 S.W.3d
90, 98 (Tex. 2016) citing Tex. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 164 (1896)). If
the original act just creates the condition that allows the harm to occur, the intervening cause is a
superseding cause that destroys the causal connection. Stanfield v. Neubaum, 494 S.W.3dat 99.
Returning to superseding cause in the form of judicial error, hen an attorney raises and
preserves necessary arguments to win a case for a client and a court nevertheless renders an
erroneous adverse ruling, the attorney s actions cannot be considered the proximate cause of the
client s loss.” Stanfield v. Neubaum 494 S.W.3d 90, 101 (Tex. 2016) (citing Crestwood Cove
Apartments Bus. Tr. v. Turner, 164 P.3d 1247, 125 (Utah 2007)). This rule of law does not mean
the attorney must be perfect and has committed malpractice if he or she could have litigated the
case more effectively. . It just requires the attorney to preserve error on the issue on which the
client prevails on appeal. Stanfield v. Neubaum, 494 S.W.3d at 101 (citing Huang v. Brenson
Dec. 891, 7 N.E.3d 729, 73738 (Ill. App.Ct.2014)).
Here, Mendez timely presented Charity’s criminal charge of bigamy and evidence of
Charity’s bigamy, a fact that would void Athans’ marriage, in both a motion to re open the
evidence and a separate motion for new trial. Had Athans continued his appeal of the Divorce
decree rather than pursuing the more expedited mandamus petition in response to Court 3’s later
repeat of the same error the motion to enforce, Mendez’s actions would have obtained a reversal
of the Divorce decree. After all, Court 3 did not just err t abused its discretion when it refused to
consider that evidenceIn re Athans , No. 09 CV, 2020 WL 1770903, at *
Judicial error as a superseding cause is a question of law. Stanfield v. Neubaum
S.W.3d 97, 104. The parties do not dispute the facts, just the application of them to this legal
issue. As Mendez showed in the motion for summary judgment, both of Mendez post trial motions
in the Divorce met the legal requirement to allow the evidence of Charity’s bigamy and void the
Divorce decree. If Court 3 ruled correctly on either motion, as the Beaumont Court of Appeals
ultimately did on the mandamus petition, we would not be here. Because Mendez presented these
motions to Court 3 along with the evidence that ultimately led to Athans’ mandamus petition being
granted, Court 3’s error on either one of the otions alone destroys proximate cause. Court 3’s
error on both motions together certainly destroy proximate cause.
ONCLUSION
Failing to plead bigamy did not preclude Mendez from presenting evidence of Charity’s
bigamy, which would void the Divorce decree. he February 2019 criminal charge of bigamy
against Charity, which washanded down after the January 16, 2019 Divorce trial, was admissible
new evidence. Court 3 should have granted the Rule 270 motion and the motion for new trial and
voided the Divorce decree. Its failure to do so was an abuse of discretion. That abuse of discretion
was a super eding cause that destroyed any proximate cause tied to Mendez’s alleged negligence.
Mendez is entitleto a summary judgment on all Athans’ claims against her.
Respectfully submitted,
ERR ILSON, P.C.
By: /s/ Richard G. Wilson
Richard G. Wilson
State Bar No.
16676 Northchase Drive, Suite 410
(281) 260 6304 Telephone
(281) 260 6467 Telecopier
rwilson@tkalaw.com
Attorneys for Defendant
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading has been served on
all counsel of record and pro se parties in accordance with the Texas Rules of Civil Procedure, on
this 10th day of November, 2021, as follows:
Sean M. Reagan Via Electronic Service
The Reagan Law Firm
P.O. Box 79582
Houston, Texas 77279
/s/ Richard G. Wilson
Richard G. Wilson
Preview
CAUSE NO. 21-03-03814 MARK ATHANS, IN THE DISTRICT COURT OF Plaintiff TERRI C. MENDEZ D/B/A MONTGOMERY COUNTY, TEXAS LAW OFFICE OF TERRI C. MENDEZ AND THE MENDEZ LAW GROUP, Defendant 457TH JUDICIAL DISTRICT REPLY TO MARK ATHANS’ RESPONSE TO MENDEZ’S MOTION FOR SUMMARY JUDGMENT Defendant, Terri C. Mendez d/b/a Law Office of Terri C. Mendez and The Mendez Law Group (“Mendez”), files this reply to Plaintiff Mark Athans’ response to her motion for summary judgment under Texas Rule of Civil Procedure 166a(c) seeking summary judgment on all claims asserted against her by Mark Athans(“Athans”) , and would respectfully show the Court: UMMARY OF EPLY In his response, Athans focuses on Mendez’s failure to plead bigamy in the Divorce and argues that alleged omission makes Mendez responsible for Athans’ damages. According to Athans, there is an unbroken connection between the failure to plead bigamy and everything Court 3 did in the Divorce. This argument avoids both the law and the facts. The law is clear. Conduct that voids a judgment may be raised at any time regardless of the pleadings. Mendez timely raised bigamy in the Rule 270 motion and motion for new trial. Failing to plead bigamy would not prevent Court 3 from voiding Athans’ marriage. The facts are also clear. Charity was criminally charged with bigamy after the Divorce trial Court 3 should have accepted evidence of the criminal charge and vo the Divorce decree. IGAMY AY AISED AT NY IME On page nine of her motion, Mendez predicted, “Athans is likely to argue there is an unbroken connection because Mendez’s and Court 3’s errors are on the same issue, bigamy, and Mendez’s failures occasioned or caused Court 3’s errors.” See Motion for Summary Judgment, at 9. That is what Athans has done. Athans argues that because Mendez never pleaded bigamy, the repeated errors by Judge Patrice McDonald in County Court at Law No. 3, Montgomery County, Texas (“Court 3”) flowed from Mendez’s alleged pleading error making Mendez responsible for Athans’ alleged harm To make this argument, Athans relies on case law requiring a judgment to conform to the pleadings. Based on the case law presented by Athans, he argues Court 3 lacked the ability to go back and void the Divorce decree because Mendez never pleaded bigamy. Mendez finds this argument puzzling because Athans has already successfully argued Court 3 abused its discretion relying on Charity s argument claiming Mark waived his right to raise a claim of bigamy by failing to have pleaded the defense before the trial court signed the decree in their divorce; In re Athans, No. 09 , 2020 WL 1770903, at * (Tex. App. Beaumont Apr. 9, 2020) (orig. proceeding) In this suit, Athans is recycling the same argument Charity’s attorney sed in the Divorce; an argumentthe Beaumont Court of Appeals rejected In another suit, Athans and Mr. Reagan pointed out Charity’s bigamy could be raised at any time because, “A marriage entered into while one party is married to another person is void from the outset as a matter of law. Phillips v. The Dow Chemical Co., 186 S.W.3d 121, 127 (Tex. App.Houston [1st Dist.] 20 05, no pet.); Dodd v. Dodd, 17 S.W.3d 714, 716 (Tex. App.Houston [1st Dist.] 2000), disapproved on other grounds, 124 S.W.3d 163 (Tex. 2003); Villegas v. Griffin Indus., 975 S.W.2d 745, 749 50 (Tex. App.Corpus Christi 1998, pet. denied); Jordan v. Jordan , 938 S.W.2d 177, 179 (Tex. App. Houston [1st Dist.] 1997, no writ). Such a marriage is absolutely null, having no force or effect for any purpose, at any place or time, and whose invalidity may be asserted by anyone, at any time, directly or collaterally. See, e.g., Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. Civ. App.Waco 1949, writ ref’d). https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=0a553fe0 9d4f 4221 964d60c40c90&coa=coa09&DT=Brief&MediaID=bdf77f17 1e27 447f ab6e 02845de5ecc7 (emphasis added). Unfortunately for Athans and fortunately for Mendez, the case law on which Athans relies is irrelevant to the Divorce. The trial court has no discretion to refuse to set aside a void judgment and has the duty to do so at any time such matter is brought to its attention, with or without a motion to do so. Bridgman v. Moore, 183 S.W.2d 705, 707 (Tex. 1944) As the Beaumont Court of ppeals has already explained to Athans’ benefit A claim that a marriage is void from its inception may [even] be raised in collateral proceedings. To our knowledge, no court has held that an allegedly void marriage cannot be raised as a defense in a motion seeking to enforce an allegedly void decree. In re Athans, No. 09 2020 WL 1770903, at *2 (Tex. App. Beaumont Apr. 9, 2020) (orig. proceeding)(emphasis added). When Charity purported to marry Athans she was still married to Trevor Hendry. The marriage to Mr. Hendry would void Charity’s purported marriage to Athans. Mendez brought Charity’s bigamy up timely in the Rule 270 motion seeking to re open evidence and void the Divorce decree. Court 3 erred in refusing to grant . Mendez timely bought Charity’s bigamy a second time in motion for new trial, and Court 3 erred a second time in denying that motion Court 3 was not done. Athans’ current counsel Mr. Reagan brought Charity’s bigamy again during motion to enforce after Mendez withdrew. Court 3 again erred by refusing to consider the evidence of bigamy and void the Divorce decree It was not until Athans mandamused Court 3 that the Beaumont Court of Appeals pointed out Court ’s error and explained the law allowed evidence that void Athans’ marriage to be brought up at ANY time. In re Athans, No. 09 CV, 2020 WL 1770903, at *2(emphasis added) Mendez timely presented bigamy and evidence to support it to Court 3 in the Rule 270 motion and the motion for new trial. Mendez’s failure to plead bigamy did not prevent Court 3 from voiding Athans’ marriage to Charity. Court 3 was required to do so and abused its discretion when it failed to follow the law on this issue. See idThe erroneous rulings by Court 3 were a superseding cause of Athans’alleged harm. THANS GNORES THE URDEN OF ROOF FOR IGAMY In his response, Athans largely ignores the criminal charge against Charity that w handed down after the Divorce trialAthans focuses on evidence that did exist at the time of the Divorce trial and argues Mendez should have timely developed and presented that evidence at the Divorce trial Athans further argues this other evidence required Court 3 to deny Mendez’s Rule 270 motion and motion for new trial filed in the Divorce. Athans presume there was evidence to void his marriage to Charity prior to Charity being criminally charged with bigamy. However, Athans never once considers th burden of proof to void a marriage Under the laws of Texas, a strong presumption prevails in favor of the legality of marriage. Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S.W. 560, 561, quotes the following concerning such presumption: ‘Every intendment of law is in favor of matrimony. When amarriage has been shown in evidence, whether regular or irregular, and whatever the form of theproofs , the law raises a presumption of its legality, not only casting theburdenof the proof upon the party objecting, but requiring him throughout and in every particular plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal andvoid[’] Simpson v. Neely, 221 S.W.2d 303, 309 (Tex. Civ. App.Waco writ ref ’d). Restating that burden in slightly more modern terms: One of the strongest presumptions of law is that a marriage, once being shown, is valid. . . . The legal presumption of validity of a second marriage must prevail until rebutted by evidence which negatives the effective operation of every possible means by which a dissolution of the prior marriage could have taken place. Schacht v. Schacht, 435 S.W.2d 197, 201 (Tex. Civ. App.Dallas , no writ As Mendez’s showed in support of her motion, Charity lied about being married to Trevor Hendry. In the Divorce trial, Charity also lied about the marriage license between Mr. Hendry and her. Charity committed perjury when she testified, under oath, it was not her signature on the marriage license with Trevor HendrySee Exhibit F to Mendez’s motion for summary judgment, p. 115, ll. 3 When one considers the burden of proof to void a marriage, and adds to that arity’s perjury, the assumption by Athans that everything would be alright had Mendez pleaded bigamy fails. Until the criminal charge was handed down by Montgomery County, the evidence to rebut the presumptive validity of Athans’ South Dakota destination wedding to Charity may have been lacking. Any such evidence could be reduced through Charity’s lies and Court 3’s apparent belief that Charity was credible into a “He said, she said” disputein which Charity would prevail Once the criminal charge came about, it was timely presented to Court 3, twice, by Mendez. Court 3’s errors in denying the Rule 270 motion, the motion for new trial, and even Athans and Mr. Reagan’s collateral attack on the Divorce decree in the motion to enforce became the superseding cause that destroyed any supposed proximate cause between Mendez’s alleged acts and Athans’ alleged harm HE RIMINAL HARGE GAINST HARITY ELEVANT AND DMISSIBLE When Athans finally turns to the criminal charge against Charity, which w not handed down until after the Divorce trial, Athans argues the criminal charge s not admissible and without the criminal charge Mendez never presented new evidence to Court 3 to support th Rule 270 motion and motion for new trial. Again, Athans appear to be playing for both sides. Athans now argues the criminal charge against Charity is not admissible. uring the motion to enforce Athans’ attorneys must have believed very same criminal charge was relevant and admissible because they presented as part of Athans’ offer of proof. See Athans’ Response to Mendez’s motion for summary judgment, Exhibit 6, at p. 5 and p. 253 (offering Exhibit R 19, which is described in the index as Charity’s criminal complaint). hen the Beaumont Court of Appeals granted Athans’ mandamus petition it held, “by refusing to admit the evidence Mark offered to support his defense that Charity was married to another when they married, the trial court abused its discretion”. In re Athans, No. 09 00074 CV, 2020 WL 1770903, at *Athans has already obtained a ruling from the Beaumont Court of Appeals that Charity’s criminal charge is admissible and it would be an abuse of discretion not to admit it that evidence. support Athans ew argument that is contrary to the holding in re Athans Athans relies on a 48 year old case holding an indictment for arson arising out of unrelated events is not admissible in a wrongful collections case Bank of N. Am. v. Bell, 493 S.W.2d 633, 637 (Tex. Civ. App.Houston [14 Dist.] 1973, no writ). The Divorce is not wrongful collections case where the criminal charge concerns unrelated events. The Divorce is family law and the criminal charge concerns Charity’s marriage to Athans here is ample precedent that evidence of criminal harge especially for conduct that is at issue in the family proceeding, is relevant even if the alleged conduct has not resulted in a conviction In re J.W.,113 S.W.3d 605, 612 (Tex. App. Dallas 2003, pet. denied In re D.M., 58 S.W.3d 801, 814 (Tex. App.Fort W orth 2001, no pet.); In re S.R., No. 10CV, 2010 Tex. App. LEXIS 9681, at *1112, 2010 WL 4983484 (Tex. App.Waco Dec. 8, 2010, pet. denied) (mem. op.) In re K.L.R.,162 S.W.3d 291, 305 (Tex. App.Tyler pet.) The criminal charge against Charity handed down after the Divorce trial. The criminal charge of bigamy was the new evidence that supported granting a motion to re open the evidence and granting a motion for new trial, both of which Mendez timely presented and Court 3 erred in denying. Court 3’s errors in denying the post trial moti are the superseding cause that destroys any proximate causealleged to flow from Mendez’s work on the Divorce HE AW IS LEAR ENDEZ IS NTITLED TO UMMARY GMENT Athans cites Stanfield v. Neubaum several times in his response, but the dicta on which Athans relies is taken out of context. Athans presumes that because Mendez failed to plead bigamy and the mandamus was ultimately granted due to bigamy there is an unbroken connection from one to the other. That is not the holding in Stanfield v. Neubaum he Court in Stanfield v. Neubaum relied o prior holdings from Texas examining superseding causes in personal injury cases.As the Texas Supreme Court explained, superseding cause can destroy the causal connection between the original negligence and the harm, even if the original negligence is the “but for” cause of the superseding cause.Stanfield v. Neubaum S.W.3d 90, 99 (Tex. 2016) (citing Bell v. Campbell,434 S.W.2d 117, 12022 (Tex.1968) ). In discussing what makes the difference between a superseding cause and a concurrent cause, the Court pointed out nothing short of prophetic ken could have anticipated the happening of the combination of events by which the original negligence led to an intervening force that resulted in the plaintiff s injury, the harm is not reasonably foreseeable. Stanfield v. Neubaum, 494 S.W.3d 90, 98 (Tex. 2016) citing Tex. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 164 (1896)). If the original act just creates the condition that allows the harm to occur, the intervening cause is a superseding cause that destroys the causal connection. Stanfield v. Neubaum, 494 S.W.3dat 99. Returning to superseding cause in the form of judicial error, hen an attorney raises and preserves necessary arguments to win a case for a client and a court nevertheless renders an erroneous adverse ruling, the attorney s actions cannot be considered the proximate cause of the client s loss.” Stanfield v. Neubaum 494 S.W.3d 90, 101 (Tex. 2016) (citing Crestwood Cove Apartments Bus. Tr. v. Turner, 164 P.3d 1247, 125 (Utah 2007)). This rule of law does not mean the attorney must be perfect and has committed malpractice if he or she could have litigated the case more effectively. . It just requires the attorney to preserve error on the issue on which the client prevails on appeal. Stanfield v. Neubaum, 494 S.W.3d at 101 (citing Huang v. Brenson Dec. 891, 7 N.E.3d 729, 73738 (Ill. App.Ct.2014)). Here, Mendez timely presented Charity’s criminal charge of bigamy and evidence of Charity’s bigamy, a fact that would void Athans’ marriage, in both a motion to re open the evidence and a separate motion for new trial. Had Athans continued his appeal of the Divorce decree rather than pursuing the more expedited mandamus petition in response to Court 3’s later repeat of the same error the motion to enforce, Mendez’s actions would have obtained a reversal of the Divorce decree. After all, Court 3 did not just err t abused its discretion when it refused to consider that evidenceIn re Athans , No. 09 CV, 2020 WL 1770903, at * Judicial error as a superseding cause is a question of law. Stanfield v. Neubaum S.W.3d 97, 104. The parties do not dispute the facts, just the application of them to this legal issue. As Mendez showed in the motion for summary judgment, both of Mendez post trial motions in the Divorce met the legal requirement to allow the evidence of Charity’s bigamy and void the Divorce decree. If Court 3 ruled correctly on either motion, as the Beaumont Court of Appeals ultimately did on the mandamus petition, we would not be here. Because Mendez presented these motions to Court 3 along with the evidence that ultimately led to Athans’ mandamus petition being granted, Court 3’s error on either one of the otions alone destroys proximate cause. Court 3’s error on both motions together certainly destroy proximate cause. ONCLUSION Failing to plead bigamy did not preclude Mendez from presenting evidence of Charity’s bigamy, which would void the Divorce decree. he February 2019 criminal charge of bigamy against Charity, which washanded down after the January 16, 2019 Divorce trial, was admissible new evidence. Court 3 should have granted the Rule 270 motion and the motion for new trial and voided the Divorce decree. Its failure to do so was an abuse of discretion. That abuse of discretion was a super eding cause that destroyed any proximate cause tied to Mendez’s alleged negligence. Mendez is entitleto a summary judgment on all Athans’ claims against her. Respectfully submitted, ERR ILSON, P.C. By: /s/ Richard G. Wilson Richard G. Wilson State Bar No. 16676 Northchase Drive, Suite 410 (281) 260 6304 Telephone (281) 260 6467 Telecopier rwilson@tkalaw.com Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been served on all counsel of record and pro se parties in accordance with the Texas Rules of Civil Procedure, on this 10th day of November, 2021, as follows: Sean M. Reagan Via Electronic Service The Reagan Law Firm P.O. Box 79582 Houston, Texas 77279 /s/ Richard G. Wilson Richard G. Wilson