Earl Anderson, Carrie Bell Scott, Sharon Anderson, Evance Anderson, Bill Burton, Willie Mae Anderson, and Jerry J. Anderson (Smith) v. Robert Louis Durham ( 2015 )

ACCEPTED
12-15-00169-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/20/2015 8:06:36 PM
Pam Estes
CLERK
NO. 12-15-00169-CV
IN THE COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
TWELFTH APPELLATE DISTRICT OF TEXAS
10/20/2015 8:06:36 PM
AT TYLER PAM ESTES
Clerk
EARL ANDERSON, CARRIE BELL SCOTT, SHARON ANDERSON,
EVANCE ANDERSON, BILL BURTON, WILLIE MAE ANDERSON
AND JERRY J. ANDERSON (SMITH),
Appellants,
V.
ROBERT LOUIS DURHAM AND FRANK L. ZELLERS, III,
Appellees
_____________________________________________________
On appeal from the 173rd District Court
Henderson County, Texas
Trial Court No. 2012A-0662
_____________________________________________________
REPLY BRIEF OF APPELLANTS
______________________________________________________________
LANA JOHNSON
State Bar number 10763650
P. O. Box 816325
Dallas, TX 75381-6325
ATTORNEY FOR APPELLANTS
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................... ii
INDEX OF AUTHORITIES ................ iii
I. SUMMARY OF THE ARGUMENT ......... 1
II. REPLY _________________ 2
A. Appellee has Failed to address the issue 2
that Durham’s summary judgment was not the
proper vehicle to address Appellants’
failure to state a cause of action.
B. Fact questions exist regarding the Warranty 3
Deed from B. A. Anderson due to alterations.
C. Appellants were denied the opportunity to 4
discover the nature of Durham’s claim that
actually established the controversy.
D. Appellants were denied the opportunity to 5
prove the elements of trespass to try title.
E. Durham failed to verify his challenge to 5
his alleged defect of parties.
CERTIFICATE OF SERVICE .................... 6
CERTIFICATE OF COMPLIANCE _................ 6
-ii-
INDEX OF AUTHORITIES
CASES Page
Horizon v. Auld, 34 S.W.3d 887 (Tex. 2000)..... 3
Perry v. Cohen, 285 S.W.3d 137 ............... 3
(Tex.App.-Austin 2009)
Spivy v. March, 151 S.W. 1037 (Tex. 1912) 4
TEXAS CONSTITUTION, STATUTES, AND RULES
Texas Rules of Appellate Procedure 38.1(f) and 38.3 1
T.R.C.P, Rule 90, 91 & 93 ........................ 3
-iii-
TO THE HONORABLE TWELFTH DISTRICT COURT OF APPEALS:
Appellants submit this Reply Brief praying that
this Court reverse the trial court’s order granting
summary judgment dismissing Appellants’ claims.
I.
SUMMARY OF THE ARGUMENT
Appellee attempts to mislead this Court by
asserting that the trial court imposed a deadline for
Appellants to amend their petition. The record does not
support his assertion. Appellee improperly attacked
Appellant’s petition with a no evidence motion for
summary judgment rather than properly filing special
exceptions. (CR 32) The trial court erred by allowing
amendment of Appellants’ petition rather than requiring
Appellee to properly file special exceptions, conducting
a hearing with a proper order so that Appellants could
cure any defects in their petition. The Texas Rules of
Civil Procedure provide for pleading amendments during
the pendency of summary judgment hearings. The trial
court thereby denied Appellants due process of law and
Appellants’ rights were fatally violated. Appellants
1
are entitled to a new trial. Further, Appellants were
denied the opportunity to cure any defects in their
affidavits and to conduct discovery on Appellee’s
amended answer and counterclaim. The trial court abused
its discretion by striking Appellants’ evidence.
Because the trial court abused its discretion, this
Court should reverse the order granting summary and
dismissal of Appellants’ claims.
II.
REPLY
A. Appellee has failed to address the issue that
Durham’s summary judgment was not the proper
vehicle to address Appellants’ failure to state a
cause of action.
Texas Rules of Appellate Procedure 38.1(f) and 38.3
provide for statement of issues in Appellants’ brief and
reply brief. Appellants raised the issue in their brief
and Durham simply failed to adequately address the
issue. Appellants raised the issue of Durham’s failure
to file special exceptions to raise the defect of
Appellants’ standing as Plaintiffs in this suit. Tex.
Rules of Civ. Pro., Rule 91 provides that special
2
exceptions are required to raise the issue. The Court
stated in Perry v. Cohen, 285 S.W.3d 137 (Tex.App.-
Austin 2009) in footnote 4 “[4] Special exceptions
inform the opposing party of defects in its pleadings,
so the party may have an opportunity to cure the defect.
See Horizon v. Auld, 34 S.W.3d 887, 897 (Tex.2000).”
Further, Texas Rules of Civil Procedure, Rule 90 waives
defect of parties unless objection by special exceptions
is filed. T.R.C.P Rule 93 requires verification of
pleadings asserting defect of parties and Durham failed
to verify his operative pleading. Therefore, the trial
court erred by granting summary judgment based upon the
lack of evidence on the defect of parties concerning
standing, by striking Appellants’ evidence, concerning
limitations and concerning the sufficiency of
allegations of title to real property. Durham waived
any defects and the issues were not ripe for
determination by summary judgment.
B. Fact questions exist regarding the Warranty Deed
from B. A. Anderson due to alterations.
The alterations in the deed are substantial and not
3
technical defects. Durham failed to address the
alterations and strike outs on the deed that
distinguishes this case from the result in Spivy v.
March, 151 S.W. 1037 (Tex. 1912) Further, Spivy involved
a well developed record allowing the Texas Supreme Court
to properly analyze the issue. The instant case
involves denial of due process to properly develop the
issues concerning laches and limitations. None of the
cases that Durham cited involve strike outs on a deed
and therefore fail to address the issue.
C. Appellants were denied the opportunity to discover
the nature of Durham’s claim that actually
established the controversy.
Durham’s Answer and Counterclaim placed title to the
property Appellants claim. Appellant’s had outstanding
discovery to clarify the chain of title. Durham’s deed
was outside the chain of title and Appellants were
prejudiced by the trial court refusal to grant a
continuance to allow sufficient time for discovery of
facts Durham alleged within six months prior to
rendition of summary judgment.
4
D. Appellants were denied the opportunity to prove the
elements of trespass to try title.
Appellants alleged title from a purported common
source relating back to B. A. Anderson. A short delay
for adequate discovery would not prejudice Durham. The
Zeller’s deed from Durham’s predecessor traces back to
an unpublished instrument and Appellants had outstanding
discovery to determine Durham’s claim and substantiate
Appellants’ claim.
E. Durham failed to verify his challenge to his alleged
defect of parties.
Appellants had standing to challenge the deed from
B. A. Anderson and Durham waived any defect. Durham
failed to address the exception to hearsay concerning
family history. The trial court erred by striking
Appellants’ recitation of family history.
WHEREFORE, PREMISES CONSIDERED, Appellants
respectfully pray that this court grant review in this
case and vacate the trial court's summary judgment. The
Andersons also request any other relief to which he may
be entitled.
5
Respectfully submitted,
Lana Johnson
_____________________________
LANA JOHNSON
Texas Bar No. 10763650
P. O. Box 816325
Dallas, TX 75381-6325
Tel. (903) 646-0672
Fax. (866) 447-7148
Attorney for Appellants
CERTIFICATE OF SERVICE
I certify that on October 20, 2015 a true and correct
copy of the foregoing document was served to Appellee’s
Attorney of Record, by e-mail.
Lana Johnson
____________________________
LANA JOHNSON
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify
that this Reply Brief contains 1,170 words. This
computer-generated document created in Word Perfect
using 14-point typeface for all text. In making this
certificate of compliance, I am relying on the word
count provided by the software used to prepare the
document.
Lana Johnson
________________________
LANA JOHNSON
6
Texas Rules
TEXAS RULES OF CIVIL PROCEDURE
Part II. RULES OF PRACTICE IN DISTRICT AND
COUNTY COURTS
§ 4. Pleading.
C. Pleadings of Defendant
As amended through June 10, 2014
Rule 90. WAIVER OF DEFECTS IN PLEADING
General demurrers shall not be used. Every defect,
omission or fault in a pleading either of form or of
substance, which is not specifically pointed out by
exception in writing and brought to the attention of the
judge in the trial court before the instruction or charge to
the jury or, in a non-jury case, before the judgment is
signed, shall be deemed to have been waived by the party
seeking reversal on such account; provided that this rule
shall not apply as to any party against whom default
judgment is rendered.
Texas Rules
TEXAS RULES OF CIVIL PROCEDURE
Part II. RULES OF PRACTICE IN DISTRICT AND
COUNTY COURTS
§ 4. Pleading.
C. Pleadings of Defendant
As amended through June 10, 2014
Rule 91. SPECIAL EXCEPTIONS
A special exception shall not only point out the particular
pleading excepted to, but it shall also point out intelligibly
and with particularity the defect, omission, obscurity,
duplicity, generality, or other insufficiency in the
allegations in the pleading excepted to.
Texas Rules consideration of the same has failed in whole or in part.
TEXAS RULES OF CIVIL PROCEDURE 10. A denial of an account which is the foundation of the
plaintiffs action, and supported by affidavit.
Part II. RULES OF PRACTICE IN DISTRICT AND
COUNTY COURTS 11. That a contract sued upon is usurious. Unless such
plea is filed, no evidence of usurious interest as a defense
§ 4. Pleading. shall be received.
C. Pleadings of Defendant 12. That notice and proof of loss or claim for damage has
not been given as alleged. Unless such plea is filed such
As amended through June 10, 2014 notice and proof shall be presumed and no evidence to
the contrary shall be admitted. A denial of such notice or
Rule 93. CERTAIN PLEAS TO BE VERIFIED
such proof shall be made specifically and with
A pleading setting up any of the following matters, unless particularity.
the truth of such matters appear of record, shall be
13. In the trial of any case appealed to the court from the
verified by affidavit.
Industrial Accident Board the following, if pleaded, shall
1. That the plaintiff has not legal capacity to sue or that be presumed to be true as pleaded and have been done
the defendant has not legal capacity to be sued. and filed in legal time and manner, unless denied by
verified pleadings:
2. That the plaintiff is not entitled to recover in the
capacity in which he sues, or that the defendant is not (a) Notice of injury.
liable in the capacity in which he is sued.
(b) Claim for Compensation.
3. That there is another suit pending in this State between
(c) Award of the Board.
the same parties involving the same claim.
(d) Notice of intention not to abide by the award of the
4. That there is a defect of parties, plaintiff or defendant.
Board.
5. A denial of partnership as alleged in any pleading as to
(e) Filing of suit to set aside the award.
any party to the suit.
(f) That the insurance company alleged to have been the
6. That any party alleged in any pleading to be a
carrier of the workers' compensation insurance at the
corporation is not incorporated as alleged.
time of the alleged injury was in fact the carrier thereof.
7. Denial of the execution by himself or by his authority
(g) That there was good cause for not filing claim with
of any instrument in writing, upon which any pleading is
the Industrial Accident Board within the one year period
founded, in whole or in part and charged to have been
provided by statute.
executed by him or by his authority, and not alleged to be
lost or destroyed. Where such instrument in writing is (h) Wage rate.
charged to have been executed by a person then
deceased, the affidavit shall be sufficient if it states that A denial of any of the matters set forth in subdivisions (a)
the affiant has reason to believe and does believe that or (g) of paragraph 13 may be made on information and
such instrument was not executed by the decedent or by belief.
his authority. In the absence of such a sworn plea, the
instrument shall be received in evidence as fully proved. Any such denial may be made in original or amended
pleadings; but if in amended pleadings the same must be
8. A denial of the genuineness of the indorsement or filed not less than seven days before the case proceeds to
assignment of a written instrument upon which suit is trial. In case of such denial the things so denied shall not
brought by an indorsee or assignee and in the absence of be presumed to be true, and if essential to the case of the
such a sworn plea, the indorsement or assignment thereof party alleging them, must be proved.
shall be held as fully proved. The denial required by this
subdivision of the rule may be made upon information 14. That a party plaintiff or defendant is not doing
and belief. business under an assumed name or trade name as
alleged.
9. That a written instrument upon which a pleading is
founded is without consideration, or that the 15. In the trial of any case brought against an automobile
insurance company by an insured under the provisions of
an insurance policy in force providing protection against
uninsured motorists, an allegation that the insured has
complied with all the terms of the policy as a condition
precedent to bringing the suit shall be presumed to be
true unless denied by verified pleadings which may be
upon information and belief.
16. Any other matter required by statute to be pleaded
under oath.