Alberto R. Garza and Leticia I. Garza v. Burch Construction, Inc.

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ACCEPTED 13-15-00052-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/13/2015 10:48:56 AM CECILE FOY GSANGER CLERK No. 13-15-00052-CV In the FILED IN 13th COURT OF APPEALS Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS Thirteenth Supreme Judicial District 7/13/2015 10:48:56 AM Edinburg, Texas CECILE FOY GSANGER Clerk ALBERTO R. GARZA AND LETICIA I. GARZA, INDIVIDUALLY, APPELLANTS VS. GARY BURCH CONSTRUCTION, INC., APPELLEE REPLY BRIEF OF APPELLANTS 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 ARGUMENT Appellee’s brief, while lengthy, still does not identify any evidence that establishes the accrual date of the Garzas’ nuisance claim. To dismiss this case on limitations grounds, Appellee had to conclusively prove that the Garzas were injured by a permanent nuisance. In a related appeal (hereinafter “Garza I”) this Court acknowledged that there was no evidence establishing that the nature of the nuisance was permanent when it said “[t]he Garzas did not assert in their petition, nor is there any evidence in the record to suggest, that the survey or the ‘finished floor elevation,’ having been completed in 1997, are now capable of being ‘repaired, fixed, or restored.’ Garza v. Melden & Hunt, Inc., No. 13-14- 00329-CV, 2015 WL 2160474 *3, May 7, 2015 (pet. filed) [emphasis added]. Without identifying any supporting evidence in the record, this Court of Appeals in Garza I erroneously concluded that “it is apparent that the Garzas’ claims are based on a permanent condition for which ‘future injury can be reasonably evaluated.’” Id. Because the limitations period for a permanent nuisance begins to accrue when injury first occurs or is discovered, this Court of Appeals in Garza I then found that the Garzas’ nuisance claim accrued in 2000, eight years before the Garzas filed suit. Id. Appellee in this case relies entirely on this Court’s decision in Garza I. Appellant has filed a petition for review (Case No. 15-0460) in the Texas Supreme 1 Court in Garza I because this Court of Appeals upheld the grant of summary judgment without any evidence in the record that established that the nuisance was permanent in nature. As a defendant moving for summary judgment on the affirmative defense of limitations, Appellee has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). As this Court of Appeals acknowledged in Garza I, there was no evidence in the record that establish whether the nuisance was permanent or temporary so Appellee failed to 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 claims. 2 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 CERTIFICATE OF COMPLIANCE Per TEX. R. APP. P. 9.4(i)(3), I certify that the Reply Brief of Appellants document received by this Court on July 13, 2015, was generated by a computer using Microsoft Word, which indicated that the word count of this document is 343. /s/ Albert Garcia Alberto T. Garcia III 3 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was forwarded to the following on July 13, 2015. Mr. Hector J. Torres Via Email hjtorrespc@att.net LAW OFFICE OF HECTOR J. TORRES, P.C. 200 N. 12th Ave., Suite 201 Edinburg, Texas 78541 Ms. Brandy Wingate Voss Via Email brandy@appealsplus.com SMITH LAW GROUP 820 E. Hackberry Ave. McAllen, TX 78501 /s/ Albert Garcia Alberto T. Garcia III 4