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