ACCEPTED
04-15-00548-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/2/2015 2:18:15 PM
KEITH HOTTLE
CLERK
NO. 04-15-00548-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOR THE FOURTH DISTRICT OF TEXAS12/2/2015 2:18:15 PM
SAN ANTONIO KEITH E. HOTTLE
Clerk
RUFINA REYES YANEZ
Appellant,
v.
AMERICAN GENERAL LIFE INSURANCE CO.
Appellee.
ON APPEAL FROM THE 341ST JUDICIAL DISTRICT COURT OF WEBB COUNTY, TEXAS
Trial Court Cause No. 2014CVF000504 D3
APPELLEE’S RESPONSE TO APPELLANT’S MOTION
FOR THE COURT TO TAKE MANDATORY JUDICIAL NOTICE
David T. McDowell EDISON, MCDOWELL & HETHERINGTON LLP
State Bar No. 00791222 Phoenix Tower
Jason A. Richardson 3200 Southwest Freeway, Ste. 2100
State Bar No. 24056206 Houston, Texas 77027
Robert P. Debelak III Telephone: 713-337-5580
State Bar No. 24078410 Facsimile: 713-337-8850
david.mcdowell@emhllp.com
jason.richardson@emhllp.com
bobby.debelak@emhllp.com
Counsel for Appellee
I. Introduction.
1. Appellant’s “Motion for the Court to Take Mandatory Judicial
Notice” (the “Motion”) has no basis in fact or law. The Motion purports to contain
a plea of “non est factum,” which has no application to this case. Further,
Appellant does not identify any facts or documents for which the Court can or
should take judicial notice. The Court should disregard the Motion because it is
moot and baseless.
II. Appellant’s Motion is Moot and Baseless.
2. As a preliminary matter, the Court should deny the Motion as moot
because it lacks jurisdiction over this appeal, which has already been dismissed.
Appellant failed to file a timely notice of appeal, and thus failed to invoke the
Court’s jurisdiction. Any attempt to reinstate the appeal is futile, and no amount of
judicially noticed facts can change that.
3. Appellant attempts to overcome this by purportedly “enter[ing] a plea
of non est factum.” Motion, at ¶ 3. By “entering” this plea, Appellant argues, the
Court is somehow required to take judicial notice of documents that appear on its
own docket. Id. None of this makes any sense.
4. Under Texas law, “[a] plea of non est factum is a plea denying
execution of an instrument sued on.” Barcroft v. Apex Holdings, Ltd., 05-95-
01453-CV, 1996 WL 743626, at *4 (Tex. App.—Dallas Dec. 31, 1996, no writ)
EMH517525 2
(citing Black’s Law Dictionary 1053 (6th ed. 1990)). The effect of a plea
of non est factum is to destroy the prima facie validity accorded to a written
instrument and to cast on the opposing party the burden of introducing evidence of
execution other than the instrument itself. General Missionary Soc. of German
Baptist Churches of N. Am. v. Real Estate Land Title & Trust Co., 134 Tex. 564,
567, 136 S.W.2d 599, 601 (Comm'n App. 1940). Texas law requires that a plea of
non est factum must be affirmatively plead in a document that is sworn or verified,
otherwise the plea is invalid. See Mansfield State Bank v. Fonville, 496 S.W.2d
945, 948 (Tex. Civ. App.—Fort Worth 1973), writ refused NRE (Oct. 3, 1973).
5. On its face, Appellant’s argument is absurd and one cannot help but
wonder if it was mistakenly copied and pasted from some irrelevant document
filed in another case. This case involves a life insurance policy that neither of the
parties contends to have been signed by Appellant. There are no facts in this case
that concern the authenticity of any party’s signatures. The Motion does not
contain any explanation for why a plea of non est factum could possibly be
applicable to this matter. None of the documents attached to the Motion
demonstrate that any signature is inauthentic, and therefore the Court should
decline to take judicial notice of them.
6. Regardless, the Motion is not a pleading, nor is it verified or sworn by
Appellant or any other person who has knowledge regarding the authenticity of
EMH517525 3
any signatures on any document at issue in the underlying litigation. Appellant’s
attempt to enter a plea of non est factum is invalid and inappropriate.
7. What Appellant appears to be doing is passing the blame for her
inaction to her own counsel and the trial court’s clerk. For example, in paragraph 4
of the Motion, Appellant argues that the clerk purportedly failed to file a complete
record with this Court, which somehow resulted in the dismissal of her appeal.
This is nonsense.
8. Appellant failed to timely file a notice of appeal, and thereby failed to
invoke the Court’s jurisdiction. Even if the trial court clerk had filed a complete
record with the Court, the appeal was still subject to dismissal for lack of
jurisdiction. The Court properly dismissed this appeal for want of prosecution
when Appellant refused to comply with the Court’s request for her to show cause
on issues relating to jurisdiction. Nothing in the Motion should persuade the Court
to reverse course and change its prior judgment.
III. Conclusion.
For the reasons set forth herein, the Court should deny the Motion.
EMH517525 4
Respectfully submitted,
EDISON, MCDOWELL & HETHERINGTON LLP
By: a
Jason A. Richardson
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served
on the 2nd day of December, 2015, on the following counsel of record by US Mail
and email:
Armando Trevino
1519 Washington St., Suite One
Laredo, TX 78042-0544
armando_trevinolaw@hotmail.com
armandotrevinolaw@gmail.com
a
Jason A. Richardson
CERTIFICATE OF COMPLIANCE
Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document has 648 words, as calculated by Microsoft Word, the word processing
software used to create the document.
a
Jason A. Richardson
EMH517525 5
Rufina Reyes Yanez v. American General Life Insurance Company
Combined Opinion