ACCEPTED
13-14-00329-CV
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI 2/2/2015 2:02:08 PM
DORIAN RAMIREZ
2/2/2015 CLERK
No. 13-14-00329-CVDORIAN E. RAMIREZ, CLERK
BY smata
In the RECEIVED IN
13th COURT OF APPEALS
Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS
Thirteenth Supreme Judicial District
2/2/2015 2:02:08 PM
Edinburg, Texas DORIAN E. RAMIREZ
Clerk
ALBERTO GARZA, ET AL,
APPELLANTS
VS.
MELDEN & HUNT, INC.,
APPELLEE
APPELLANTS’ REPLY TO
BRIEF OF APPELLEE
GARCIA & MARTINEZ, L.L.P.
Adrian R. Martinez
State Bar No. 13137600
Alberto T. Garcia III
State Bar No. 00787515
6900 N. 10th Street, Suite 2
McAllen, Texas 78504
Phone: (956) 627-0455
Fax: (956) 627-0487
ATTORNEYS FOR APPELLANTS
TABLE OF CONTENTS
Index of Authorities i
Argument 1
Prayer 5
Certificate of Service 6
ii
INDEX OF AUTHORITIES
Cases Page
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) 3
Houston Endowment, Inc. v. Atlantic Richfield Co., 972 S.W.2d 156 1
(Tex. App.—Houston [14th Dist.] 1998, no pet.)
Hudson v. Wakefield, 711 S.W.2d 628 (Tex. 1986) 1, 2
M.D. Anderson Hosp. and Tumor Institute v. Willrich, 3
28 S.W.3d 22 (Tex. 2000)
Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) 1
Shih v. Tamisiea, 306 S.W.3d 939 (Tex. App.—Dallas 2010, no pet.) 4
iii
ARGUMENT
Law of the Case Doctrine
Appellee first argues that under the law of the case doctrine, this Court’s
prior decision in Melden & Hunt, Inc. v. Garza, 2013 WL 3517743 (Tex. App.—
Corpus Christi 2013, no pet.) (“Garza Appeal I”) conclusively establishes that the
limitations period for the Garza’s nuisance claim accrued before September 1,
2005. Therefore, Appellee claims, it did not have to prove the nature, duration,
severity, or frequency of the Garzas’ injury in order to prove whether the nuisance
was permanent or temporary.
The law of the case doctrine does not apply here because it only applies to
questions of law and not to questions of fact. Hudson v. Wakefield, 711 S.W.2d
628, 630 (Tex. 1986). When a plaintiff knew or should have known of an injury in
order to determine the accrual date for limitations analysis, is a question of fact.
Houston Endowment, Inc. v. Atlantic Richfield Co., 972 S.W.2d 156, 160 (Tex.
App.—Houston [14th Dist.] 1998, no pet.). Also, the frequency, extent and duration
of the Garzas’ injury, and whether such injuries are reasonably certain to continue
in the future, are questions of fact. Schneider Nat’l Carriers, Inc. v. Bates, 147
S.W.3d 264, 281 (Tex. 2004). In Garza Appeal I this Court analyzed the facts
related to when the Garzas “knew or in the exercise of ordinary diligence should
have known of Melden & Hunt’s alleged negligence and the alleged injury
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resulting therefrom” in order to conclude that the negligence cause of action
accrued before September 1, 2005. Melden & Hunt, Inc., 2013 WL 3517743 *2.
Appellee wants this Court to take the same fact determinations it made (i.e. when
the Garzas knew or should have known…”) and apply those fact determinations in
this appeal. But, the law of the case doctrine does not apply to questions of fact.
The law of the case doctrine also does not apply because in Garza Appeal I
the Court discussed the accrual date for the Garzas’ negligence claim, whereas this
appeal involves the accrual date for their nuisance claim. The Garzas did not
address this Court’s opinion in Garza Appeal I in the trial court or in their brief in
this appeal because Garza Appeal I did not involve, or even address, the accrual of
the Garza’s nuisance claim. The law of the case doctrine does not apply when the
issues or the facts presented in a later appeal are not substantially the same as those
addressed in a prior appeal. Hudson, 711 S.W.2d at 630. The facts necessary to
determine when a nuisance claim accrues are different than the facts necessary to
determine when a negligence claim accrues. To determine when a nuisance claim
accrues for limitations purposes, the factfinder determines facts relevant to the
frequency, extent, and duration of the injury to determine if the injury is permanent
or temporary. Those facts are not relevant to determining when a negligence claim
accrues and this Court in Garza Appeal I did not analyze, or even address, those
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types of facts. In fact, the opinion in Garza Appeal I does not even use the word
“nuisance” a single time.
For these reasons, the law of the case doctrine is inapplicable here.
Waiver
Appellee also argues that the Garzas waived their right to challenge the legal
sufficiency of its evidence establishing the accrual date of the Garzas’ nuisance
claim because the Garzas did not raise the same argument with the trial court.
Appellee is wrong. Longstanding Texas Supreme Court case law allows a
nonmovant to challenge the legal sufficiency of a movants’ grounds for summary
judgment on appeal, even if the same challenge was not made in the trial court.
As the nonmovant, the Garzas had no burden to even respond to Appellee’s
summary judgment motion unless Appellee conclusively established its limitations
affirmative defense. M.D. Anderson Hosp. and Tumor Institute v. Willrich, 28
S.W.3d 22, 23 (Tex. 2000). Clearly, Appellee presented no evidence whatsoever to
the trial court regarding the extent, duration and frequency of the Garzas’ injury,
and therefore did not conclusively establish the limitations defense for nuisance.
Because summary judgments must stand on their own merits, the nonmovant need
not respond to the motion to contend on appeal that the movant’s summary
judgment proof is insufficient as a matter of law to support summary judgment. Id.
As the Texas Supreme Court stated in City of Houston v. Clear Creek Basin Auth.,
3
589 S.W.2d 671, 678 (Tex. 1979) “[w]hile it would be prudent and helpful to the
trial court for the non-movant always to file an answer or response, the non-
movant needs no answer or response to contend on appeal that the grounds
expressly presented to the trial court by the movant’s motion are insufficient as a
matter of law to support summary judgment.” The statement in TRCP 166a(c) that
issues not presented to the trial court in a written motion, answer or response will
not be considered on appeal, does not prohibit the nonmovant from challenging the
legal sufficiency of the movant’s proof. “In other words, except to attack the legal
sufficiency of the movant’s grounds for summary judgment, the nonmovant must
expressly present to the trial court in a written answer or response to the motion
any reason for avoiding the movant’s entitlement to summary judgment.” Shih v.
Tamisiea, 306 S.W.3d 939, 944 (Tex. App.—Dallas 2010, no pet.).
In this appeal, the Garzas challenge the legal sufficiency of Appellee’s proof
of the accrual date of the Garza’s nuisance claim. Appellee presented absolutely no
evidence to the trial court regarding the extent, duration, or frequency of the
Garzas’ injury so that the Court could determine whether it was permanent or
temporary. Without such evidence, the Court cannot determine whether the
Garzas’ cause of action accrued when the injury first occurred or was discovered
(permanent injury) or accrued with each injury (temporary nuisance). Thus,
4
Appellee’s proof is legally insufficient to conclusively establish the accrual date of
the Garzas’ nuisance claim.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellants respectfully
request that this Honorable Court of Appeals reverse the MSJ Order insofar as it
dismisses Appellants’ nuisance claim and their ability to recover exemplary
damages in connection with their nuisance claim.
Respectfully submitted,
GARCIA & MARTINEZ, L.L.P.
6900 N. 10th Street, Suite 2
McAllen, Texas 78504
Phone: (956) 627-0455
Fax: (956) 627-0487
/s/ Albert Garcia
ADRIAN R. MARTINEZ
State Bar No. 13137600
adrian@garmtzlaw.com
ALBERTO T. GARCIA III
State Bar No. 00787515
albert@garmtzlaw.com
ATTORNEYS FOR APPELLANTS
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing document was forwarded to the following on February 2, 2015.
Ms. Jacqueline M. Stroh
THE LAW OFFICE OF JACQUELINE M. STROH, P.C.
10101 Reunion Place, Suite 600
San Antonio, Texas 78216
Mr. Henry B. Gonzalez III
GONZALEZ, CHISCANO, ANGULO & KASSON, P.C.
613 N.W. Loop 410, Suite 800
San Antonio, Texas 78216
/s/ Albert Garcia
Alberto T. Garcia III
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