Jose Marcos Montalvo, Individually and Marcos Montalvo D/B/A Montalvo Roofing & Construction v. Adolfo Vela, Individually and Adolfo Vela D/B/A Adelco Enterprises

ACCEPTED
13-14-00166-CV
THIRTEENTH COURT OF APPEALS
FILED CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS 1/8/2015 2:41:33 PM
CORPUS CHRISTI DORIAN RAMIREZ
CLERK
1/8/15
DORIAN E. RAMIREZ, CLERK
BY DTello CASE NO. 13-14-00166-CV
RECEIVED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE
CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH JUDICIAL DISTRICT OF1/8/2015
TEXAS 2:41:33 PM
DORIAN E. RAMIREZ
Clerk
JOSE MARCOS MONTALVO,
APPELLANT
vs.
ADOLFO VELA,
APPELLEE
SUPPLEMENTAL BRIEF OF APPELLEE
HAROLD K. TUMMEL
SBN 20286675
LYDIA CASSO TUMMEL
SBN 00791830
Tummel & Casso
4430 South McColl Road
Edinburg, Texas 78539
Tel. No.: (956) 664-2222
Fax No.: (956) 664-0522
ATTORNEYS FOR APPELLEE
ORAL ARGUMENT REQUESTED
Page 1 of 12
IDENTITIES OF PARTIES AND COUNSEL
IDENTITIES OF PARTIES IDENTITIES OF COUNSEL
Jose Marcos Montalvo, Ms. Fela Olivarez*,**
Plaintiff, Appellant tbolivarez@sbcglobal.net
216 E. Expressway 83 #L-M
Pharr, Texas 78577
Tel. No.: (956) 702-2226
Fax No.: (956) 702-2229
Marcel C. Notzon, III**
mcn@notzonlawfirm.com
The Notzon Law Firm
415 Shiloh Drive, Ste. B
Laredo, Texas 78045
Tel. No.: (956) 717-1961 (press 22)
Fax No.: (956) 717-2789
Adolfo Vela, Harold K. Tummel *, **
Defendant, Appellee hkt@bizrgv .rr .com
Lydia Casso Tummel**
lct@bizrgy.rr.com
Tummel & Casso
4430 South McColl Road
Edinburg, Texas 78539
Tel. No.: (956) 664-2222
Fax No.: (956) 664-0522
* Trial counsel
** Appellate counsel
Page 2of12
TABLE OF CONTENTS
DESCRIPTION PAGES
IDENTITIES OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
ARGUMENT 6-11
PRAYER 11
TRAP 9.4(i)(3) CERTIFICATE 12
CERTIFICATE OF SERVICE 12
Page 3of12
INDEX OF AUTHORITIES
CASES PAGES
Arredondo v. Rodriguez, ........................................................................................... 10
198 SW3d 236 (Tex. App. - San Antonio 2006, no pet.)
Chapa v. Wirth, ..........................................................................................................6
343 SW2d 936 (Tex. App. -Eastland 1961, no writ)
City ofHouston v. Clear CreekBasinAuthority, ........................................................ 9
589 SW2d 671 (Tex. 1979)
Hexter v. Pratt, .......................................................................................................... 7
10 SW2d 692 (Tex. Comm'n App. 1928,judgment adopted)
K&S Interests, Inc. v. Texas American Bank /Dallas, ................................................6
749 SW2d 887 (Tex. App. -Dallas 1988, writ denied)( op. on reh'g)
Mooney v. Harlin, ..................................................................................................... 7
622 SW2d 83 (Tex. 1981)
"Moore" Burger, Inc. v. Philips Petroleum Co., ........................................................ 9
492 SW2d 934 (Tex. 1972)
Nguyen v. Allstate Insurance Company, ................................................................... 10
404 SW3d 770 (Tex. App. - Dallas 2013, no writ)
Pentikis v. Texas Electric Service Company, ............................................................ 6
470 SW2d 387 (Tex. App. -Fort Worth 1971, writ refd n.r.e.)
Pons art v. Citicorp Vendor Finance, Inc., ................................................................. 6
89 SW3d 285 (Tex. App. - Texarkana 2002, no pet.)
Republic Nat'/ Leasing Corp. v. Schindler, .............................................................. 9
717 SW2d 606 (Tex. 1986)
Smith v. Brown & Root, lnc., ...................................................................................... 6
430 SW2d 549 (Tex. App. - Houston 1968, no writ)
University State Bank v. Gifford-Hill Concrete Corp., ............................................. 7
431SW2d561 (Tex. App.-Ft. Worth 1968, writ refd n.r.e.)
Page 4of12
Walker v. Harris, ....................................................................................................... 9
924 SW2d 375 (Tex. 1996)
Page 5of12
ARGUMENT
Appellant's Introduction
In his brief at page vii, Appellant refers to his bill of review ''under cause
number C-095-09-E," while his bill of review was docketed and adjudicated as Case
No. C-2559-12-E ("this Case").
Appellant's Statement Of The Case
In his brief at page viii, Appellant argues that he settled the claim by Appellee
made a subject of Case No. C-095-09-E ("the Original Case"). Appellee objects to
such argument as outside the record.
In his brief at page viii, Appellant argues that he was not aware of the
judgment rendered against him in the Original Case until a levy was made upon his
real property. Appellant's undisputed timely appearance in the Original Case gives
rise to an irrebuttable presumption, however, that Appellant had contemporaneous
knowledge of the facts disclosed by the trial court's file in the Original Case. Smith
v. Brown & Root, Inc., 430 SW2d 549 (Tex. App. - Houston 1968, no writ); Chapa
v. Wirth, 343 SW2d 936 (Tex. App. - Eastland 1961, no writ); Ponsart v. Citicorp
Vendor Finance, Inc., 89 SW3d 285 (Tex. App. - Texarkana 2002, no pet.); K&S
Interests, Inc. v. Texas American Bank/Dallas, ~49 SW2d 887(Tex. App. - Dallas
1988, writ denied)(op. on reh'g); Pentikis v. Texas Electric Service Company, 470
Page 6of12
SW2d 387(Tex. App. - Fort Worth 1971, writ ref d n.r.e.); Mooney v. Harlin, 622
SW2d 83(Tex. 1981); Hexter v. Pratt, 10 SW2d 692 (Tex. Comm'n App. 1928,
judgment adopted); University State Bankv. Gifford-Hill Concrete Corp., 431 SW2d
561(Tex. App.-Ft. Worth 1968, writ refd n.r.e.).
In his brief at page viii, Appellant argues that judgment was rendered against
him in the Original Case even though Appellee's claim had been settled. Appellee
objects to such argument as outside the record.
In his brief at page viii, Appellant states that Judge Chiuminatto was the trial
judge. Judge Partida was the trial judge in the Original Case. Judge Chiuminatto was
appointed to preside in this Case when Judge Partida recused himself because
counsel for Appellant argued that misconduct on the part of Judge Partida's staff
caused the rendition of the judgment against Appellant in the Original Case.
Appellant's Statement Of Facts
Appellee objects to all of the first paragraph of Appellant's statement of facts,
as outside the record.
Appellee objects to all of the second paragraph of Appellant's statement of
facts, as outside the record.
Appellee objects to all of the third paragraph of Appellant's statement of facts,
as outside the record.
Page 7of12
Appellee objects to all of the fourth paragraph of Appellant's statement of
facts, as outside the record.
Appellee objects to footnote one to the fifth paragraph ofAppellant's statement
of facts, as outside the record.
Appellee objects to the seventh paragraph of Appellant's statement of facts,
on the ground that the statements therein are not supported by Appellant's record
references.
Appellee objects to the eighth paragraph of Appellant's statement of facts, on
the ground that the statements therein are not supported by Appellant's record
references.
Appellee objects to the eleventh paragraph of Appellant's statement of facts,
on the ground that the statements therein are not supported by Appellant's record
references.
Appellee objects to the fourteenth paragraph of Appellant's statement of facts,
on the ground that the statements therein are not supported by Appellant's record
references.
Appellant's Summary Of The Argument
Appellant argues (Appellant's Brief, p. 6) that the summary judgment in the
Original Case was improper, because Appellant's original answer contained a general
Page 8of12
denial. It is well established, however, that in responding to a motion for summary
judgment, a party does not create a fact issue by referencing the responding party's
pleadings. Rather, the responding party must present competent summary judgment
evidence to raise a fact issue. "To obtain a summary judgment, a defendant must
either negate at least one element of the plaintiffs theory of recovery, 'Moore'
Burger, Inc. v. Philips Petroleum Co., 492 SW2d 934, 936 (Tex. 1972), or plead and
conclusively prove each element of an affirmative defense. City ofHouston v. Clear
Creek Basin Authority, 589 SW2d 671, 678 (Tex. 1979). After the defendant
produces evidence entitling it to summary judgment, the burden shifts to the plaintiff
to present evidence creating a fact issue. 'Moore' Burger, 492 SW2d at 936-937."
Walker v. Harris, 924 SW2d 375, 377 (Tex. 1996).
Appellant argues (Appellant's Brief, p. 6) that the summary judgment in the
Original Case was improper, because Appellant filed a letter with the trial court in the
Original Case, which was written by Appellant, and which references there being a
settlement agreement between Appellant and Appellee. Such letter was not
authenticated and therefore did not constitute competent summary judgment evidence.
Republic Nat'/ Leasing Corp. v. Schindler, 717 SW2d 606, 607 (Tex. 1986). Such
letter contained no evidence that Appellee was a party to such "settlement
agreement." Moreover, Appellant did not file a response to the motion for summary
Page 9of12
judgment calling upon the trial court to consider such letter, in any event.
Correspondingly, the court did not err in granting the summary judgment,
notwithstanding Appellant's filing of said letter with the trial court. "A party
submitting summary judgment evidence must specifically identify the supporting
proof on file that it seeks to have considered by the trial court." Nguyen v. Allstate
Insurance Company, 404 SW3d 770, 776 (Tex. App. - Dallas 2013, pet. denied),
quoting from Arredondo v. Rodriguez, 198 SW3d 236, 238 (Tex. App. - San Antonio
2006, no pet.).
Appellant argues (Appellant's Brief, p. 6) that the trial court erred in this Case
in granting Appellee's motion for summary judgment, because Appellant "alleged"
each element of a bill-of-review claim. Such allegations do not amount to competent
summary judgment evidence, and therefore did not render the summary judgment at
issue improper. Moreover, Appellant failed to file a response to Appellee's summary
judgment motion, and thereby failed to direct the trial court's attention to such
pleadings, in any event.
Appellant's Argument
Appellant argues, at page 13 of Appellant's brief, "The trial court should have
granted Montalvo's bill of review because he satisfies [sic] the burden to allege and
prove the required elements set out in Barnes, 975 SW2d at 537." The record does
Page 10of12
not support Appellant's argument. In particular, the record does not support a finding
that Appellant's failure to present a defense in the Original Case was not caused, even
in part, by any fault or negligence of Appellant. To the contrary, the summary
judgment record before the trial court and applicable law make overwhelmingly clear
that Appellant was negligent in failing to present a defense in the Original Case, and
in failing to seek a new trial after judgment was rendered in the Original Case, and in
failing to appeal after judgment was rendered in the Original Case. See Brief of
Appellee, at pages 8-10, 15-19.
Therefore, the judgment of the trial court in this Case should be affirmed.
PRAYER
Wherefore, premises considered, Vela prays that the Court affirm the judgment
of the trial court.
Page 11of12
Respectfully submitted,
Isl Harold K. Tummel
SBN 20286675
S.D. Tex. No. 11901
hkt@bizrgy.rr.com
Lydia C. Tummel
State Bar No. 00791830
S.D. Tex. No. 18782
lct@bizrgv .rr .com
Tummel & Casso
McColl At Trenton
4430 South McColl Road
Edinburg, Texas 78539
Tel. No.: (956) 664-2222
Fax No.: (956) 664-0522
ATTORNEYS FOR ADOLFO VELA
TRAP 9.4(i)(3) CERTIFICATE
According to the software program used to make this brief, this brief contains
1690 words.
Isl Harold K. Tummel
CERTIFICATE OF SERVICE
A true copy of this instrument was served by first class mail, postage prepaid,
on January 8, 2015, upon the following persons:
Ms. Fela Olivarez
216 E. Expressway 83 #L-M
Pharr, Texas 78577
Marcel C. Notzon, III
The Notzon Law Firm
415 Shiloh Drive, Ste. B
Laredo, Texas 78045
Isl Harold K. Tummel
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