ACCEPTED
12-14-00007-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/7/2015 3:33:25 PM
CATHY LUSK
CLERK
No. 12-14-00007-CV
In the Court of Appeals
Twelfth Court of Appeals District
Tyler, Texas
REX SMITH and NANCY SMITH,
Appellants
v.
KELLY DAVIS AND AMBER DAVIS
Appellees
Appealed from the 294th Judicial District Court
Van Zandt County, Texas
APPELLEES’ REPLY TO APPELLANT’S RESPONSE TO
MOTION FOR REHEARING OF OPINION RENDERED FEBRUARY 18, 2015
ATTORNEY FOR APPELLEES:
S. Gary Werley
Law Office of S. Gary Werley
Texas State Bar No. 21187000
1840 Acton Highway, Suite 102
Granbury, Texas 76049
817-573-7700
817-573-7710 - fax
sgwerley@werleylaw.com
Appellees’ Motion for Rehearing Page 1
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES, Kelly Davis and Amber Davis, Appellees, and files this Reply
to Appellant’s Response to Motion for Rehearing of the Court’s Opinion Rendered
on February 18, 2015, and for same would show unto the Court the following:
I.
In Reply to the Response to the Rehearing as filed by the Smiths, the Davis’
herein state as follows:
1. As to the issue of overcompensation to the Davis’.
In the original motion for rehearing the Defendant did not object to the
amount of actual damages. Notwithstanding same the Court modified same
in its opinion and judgment. Appellee’s Motion for Rehearing pointed out
the failure to object. The Response does not address same.
Mr. Davis testified that the agreement between the parties was that all
monies paid on Tract 9 would be applied to Tract 7. (RR P. 74). Rex
Smith never called and said that they were late or missed a payment. (RR
P. 30). The lawsuit was filed in February of 2008, and Davis was paid up
at that time. (RR P.29). The jury believed Mr. Davis.
The Response makes the statement that “when the parties agreed to a deal
on Lot 7, Smith agreed to accept a return of Lot 9, that the Davis’ account
accrued equity on that Lot – the $3,700.00 – as a down-payment on Lot 7.
There is no evidence to support this statement. There is no testimony
concerning equity. The jury did not believe Smith.
2. As stated in the Motion for Rehearing filed by the Davis’, the pleadings
filed by Plaintiff stated that violations of the sections of the Texas Property
Code, in several instances, allowed for attorney’s fees under the DTPA.
For instance, §5.069 provides that the Seller shall provide the Purchaser a
survey. §5.070, not addressed by Appellant, provides that the Seller shall
provide the Purchaser tax certificates. These items were not provided as
found by the jury in response to Jury Questions. Both Sections state that
the “failure to provide the information required by this Section is a false,
misleading or deceptive act or practice within the Deceptive Trade Practice
Act, and entitles the Purchaser to cancel and rescind the Executory
Contract and receive full refund of all payments made to the Seller.
Either one of these disclosures would have disclosed that the property
described as Lot 7 of the Tall Oaks Estates Subdivision, Van Zandt
County, did not exist. (Pl’s Exh. 3, Def’s Exh 7A, RR 94). The jury found
that as a result of the failure to provide a survey and/or tax certificates for
the property that did not exist, the Davis’ relied upon these
misrepresentations, and subsequently suffered damages in excess of
$33,000.00. As a result the actions of Mr. Smith, attorney’s fees are due.
WHEREFORE, PREMISES CONSIDERED, Appellee requests that this
Court grant the damages as found by the jury for violation §5.077 of the Property
Code, the actual damages found by the jury, as well as attorney’s fees.
LAW OFFICES OF S. GARY WERLEY
BY:___/s/ S. Gary Werley_____
S. GARY WERLEY
State Bar No. 21187000
sgwerley@werleylaw.com
1840 Acton Highway, Suite 102
Granbury, Texas 76049
(Telephone) 817-573-7700
(Facsimile) 817-573-7710
ATTORNEY FOR APPELLEES
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of Appellees’ Reply to
Appellant’s Response to Motion for Rehearing has been forwarded to the following
attorneys of record on this day of e-filing:
Via email or efiling
Jeffrey C. Irion
P. O. Box 5527
Gun Barrel City, TX 75147-5012
Jirionattorney@aol.com
Greg Smith
Ramey & Flock, PC
100 E. Ferguson, Suite 500
Tyler, Texas 75202
GregS@rameyflock.com
By:__/s/ S. Gary Werley_________
S. GARY WERLEY