Ryann Pedone v. Joshua Nelson Harvey

07-17-00394-CV ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/25/2018 5:07 PM
Vivian Long, Clerk
GRIFFITH, JAY, & MICHEL, LLP
ATTORNEYS AT LAW
2200 FOREST PARK BOULEVARD
FORT WORTH, TEXAS 76110-1732
PHONE (817) 926-2500
FAX (817) 926-2505
FILED IN
Website www.lawgjm.com
ROSS P. GRIFFITH
7th COURT OF APPEALS
Of Counsel
JAMES V. JAY, IV AMARILLO,
FRANKLIN TEXAS
MOORE
WILLIAM M. MURPHY
THOMAS M. MICHEL
KELLY E. DeBERRY 5/25/2018 5:07:22
RICHARD PM P.C.
L. BOURLAND,
RICHARD L. BOURLAND
MARK J. PETROCCHI
BILL E. BOWERS
VIVIAN LONGBOURLAND
ELIZABETH
EVAN M. McGUIRE CLERK
L. STEPHEN FRANSCINI, V
LAUREN M. LOCKETT
May 25, 2018
APPELLANT’S POST-SUBMISSION LETTER BRIEF
VIA E-FILING
Vivian Long, Clerk
Seventh Court of Appeals
P.O. Box 9540
Amarillo, Texas 79105-9540
Re: Cause No. 07-17-00394-CV; Ryann Pedone v. Joshua Nelson
Harvey, In the Seventh Court of Appeals, Amarillo
TO THE HONORABLE COURT OF APPEALS:
During oral argument, counsel for the Appellee cited to the Court the case
of Fusselman v. Fusselman, No. 09-11-00435-CV, 2016 Tex.App.LEXIS 10413
(Tex.App.—Beaumont September 16, 2013, no pet.)(mem. op.). Fusselman is
distinguishable from the present case in a number of ways. First, in Fusselman,
there was a significant dispute whether the parties cohabitated together. In our
case, it is undisputed that the parties cohabitated for a number of years together.
Second, in Fusselman, there was just a brief mention that the parties had filed joint
tax returns. Our case is significantly different in the following respects:
APPELLANT’S POST-SUBMISSION LETTER BRIEF
May 25, 2018
Page 2
1. It is undisputed that the parties filed tax returns as filing married for
the years 2006 through 2013.
2. It is undisputed that a third party certified public accountant, Clint
Brints, prepared and filed joint tax returns on behalf of the parties.
3. It is undisputed that another third party certified public accountant,
Carl Deaton, filed joint tax returns on behalf of the parties.
4. It is undisputed that a banker entered into a loan transaction to the
parties as being married.
5. It is undisputed and a judicial admission by Josh himself that he had
represented to the government for years that he was married to Ryann.
As discussed during oral argument, this was contemporaneous evidence of
how the parties held themselves out.
The undisputed evidence of: tax returns, bank documents, financial
statements, CPA testimony, banker testimony, and both parties’ judicial
admissions that they had held out to others that they were husband and wife cannot
be disregarded by the trier of fact.
An appellate court conducting a legal sufficiency review cannot “disregard
undisputed evidence that allows only one logical inference.” City of Keller v.
Wilson, 168 S.W.3d 802, 814 (Tex. 2005). “By definition, such evidence can be
viewed in only one light, and reasonable jurors can reach only one conclusion
from it. Jurors are not free to reach a verdict contrary to such evidence, indeed,
APPELLANT’S POST-SUBMISSION LETTER BRIEF
May 25, 2018
Page 3
uncontroverted issues need not be submitted to a jury at all.” Id. Not all evidence
is the same. In this case, the trier of fact was not free to disregard this conclusive
evidence. Most often undisputed contrary evidence becomes conclusive (and thus
cannot be disregarded) when it concerns physical facts that cannot be denied. City
of Keller, 168 S.W.3d at 815. For example, evidence that a buyer believed that a
product had been repaired is conclusively negated by an accompanying letter to
the contrary. Id.; PPG Industries, Inc. v. JBM/Houston Ctrs Partners, Ltd.
P’ship., 146 S.W.3d 79, 97-98 (Tex. 2004). In this case, the contemporaneous
testimony of uninterested witnesses supported by uncontradicted documents as
well as Josh’s own sworn testimony and admission cannot be ignored.
As such, the Fusselman case does not alter the consideration at issue in this
case. This Court should reverse and render that an informal marriage was
established as a matter of law. In the alternative, the Court should find that the
findings were against the great weight and preponderance of the evidence and
manifestly unjust and should reverse and remand to the trial court for a new trial.
Appellee also cited the case of Lujan v. Navistar, Inc., 2018 Tex.LEXIS 347
(Tex. 2018) for the proposition that sham affidavits are not evidence and cannot
defeat a motion for summary judgment if the affidavit directly contradicts, without
explanation, previous testimony. The Supreme Court reasoned that allowing
APPELLANT’S POST-SUBMISSION LETTER BRIEF
May 25, 2018
Page 4
manufactured affidavits to defeat summary judgment would thwart the very
objective of summary judgment that there is no real and genuine issue from those
that are formal or pretended. Id. at *10. In this case, Josh’s attempt to contradict
his sworn deposition testimony that he had read the tax returns, understood them,
signed them, and represented to the Federal Government for years that he was
married to Ryann is a sham in order to avoid a finding of common law marriage.
Respectfully submitted,
/s/ Thomas M. Michel
Thomas M. Michel
State Bar No. 14009480
GRIFFITH, JAY & MICHEL, LLP
2200 Forest Park Blvd.
Fort Worth, Texas 76110
(817) 926-2500 (Telephone)
(817) 926-2505 (Facsimile)
Thomasm@lawgjm.com
ATTORNEY FOR APPELLANT
TMM/kdw
cc: Paul Leopold (Via E-Service paul@koonsfull.com
Sean Patrick Abeyta (Via E-Service sean@koonsfuller.com)