in the Estate of Luisa R. Montemayor

ACCEPTED
04-15-00397-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/14/2015 2:24:11 PM
KEITH HOTTLE
CLERK
CASE NO. 04-15-00397-CV
___________________________________________________

IN THE COURT OF APPEALS FILED IN
4th COURT OF APPEALS
FOR THE FOURTH SUPREME JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
AT SAN ANTONIO, TEXAS 09/14/2015 2:24:11 PM
___________________________________________________
KEITH E. HOTTLE
Clerk

MARCELO R. MONTEMAYOR,
APPELLANT

V.

GRACE CALENTINE,
AS A DEVISEE OF THE ESTATE OF
LUISA R. MONTEMAYOR, DECEASED,
APPELLEE
___________________________________________________

APPEAL FROM THE PROBATE COURT NO. 2,
BEXAR COUNTY, TEXAS
TRIAL COURT NO. 2010-PC-3012
HONORABLE TOM RICKOFF, JUDGE PRESIDING
___________________________________________________

APPELLANT’S BRIEF
___________________________________________________

ORAL ARGUMENT REQUESTED
Marcelo R. Montemayor,
Appellant, Pro Se
SBN 14283400
P.O. Box 831561
San Antonio, Texas 78283
Phone (210) 842-5043
email one-marcelo@juno.com
 TABLE OF CONTENTS

page
Table of Contents.............................ii

List of Authorities.......................iii-iv

List of Parties................................v

Statement of the Nature of the Case............1

Statement of Jurisdiction......................2

Statement Regarding the Record.................2

Summary of the Argument........................3

ISSUES AND ERRORSRESENTED......................3

POINT OF ERROR ONE ............................3
The Trial Court abused its discretion and
erred in Granting Summary Judgment and No-Evidence
Summary Judgment.

Statement of the Facts and Procedural
Background.....................................4

Standard of Review.............................5

Statement, Argument and Authorities............6

Conclusion and Prayer.........................11

Certification, Compliance and Service.........13

ii
 LIST OF AUTHORITIES

Cases page

Elliott-Williams Co. v. Diaz,
9 S.W.3d 801,803 (Tex. 1999)
(omitted in text)..............................9

Friendswood Dev. Co. v. McDade & Co.,
926 S.W. 2nd 926 (Tex. 1996)
(omitted in text)..............................9

IN THE ESTATE OF LUISA R. MONTEMAYOR,
Deceased, No. 04-14-00392-CV, (Tex. App.-
San Antonio 2015)(mem. op).....................2

Low v. Henry, 221 S.W.3d 609,
612 (Tex. 2007)................................7

Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding 289S.W. 3d 844,
848 (Tex. 2009)..............................5,6

McConnell v. Southside Ind. Sch. Dist.,
858 S.W. 2nd 337,342 (Tex.1993)................8

Park Place Hosp. v. Estate of Milo,
909 S.W. 2nd 508, 510 (Tex. 1995).............10

Rentfro v. Cavazos, No. 04-10-00617-CV,
2012 SL 566364*5 (Tex. App.-San
Antonio, 2012, pet. den.) (men.op).............8

Roberts v. Southwest Texas Methodist
Hospital, 811 S.W.2nd 141 (Tex. App.--
San Antonio 1991, writ denied).................8

iii
Science Spectrum, Inc. v. Martinez,
941 S.W.2nd 910,911 (Tex. 1997)
(omitted in text).............................10

Southwest Electric Power Company v.
Grant 73 S.W. 3d 211,216 (Tex. 2002)........9,10

Travelers Ins. Co. v. Joachim, 315 S.W.
860, 862 (Tex. 2010)...........................5

Statutes and Rules

Tex. R. Civ. P. 166a(c)...................3,8,10

Tex. R. Civ. P. 166a(i)...................3,9,10

Tex. R. Evid. 201..............................2

iv
 List of Parties and Counsel

Appellant is Marcelo R. Montemayor

Pro Se
P.O. Box 831651
San Antonio, Texas 78283
Phone (210) 842-5043
email:
one-marcelo@juno.com

Appellee is GRACE CALENTINE,
Represented by:
Reed Greene
26254 IH 10 West,
Suite 135
Boerne, TX 78006
Ph. 210-826-1233
Fax 210-826-4784
Email:
egreene2@satx.rr.com

v
 CASE NO. 04-15-00397-CV

___________________________________________________

IN THE COURT OF APPEALS
FOR THE FOURTH SUPREME JUDICIAL DISTRICT
AT SAN ANTONIO, TEXAS

___________________________________________________

MARCELO R. MONTEMAYOR,
APPELLANT

V.

GRACE CALENTINE,
AS A DEVISEE OF THE ESTATE OF
LUISA R. MONTEMAYOR, DECEASED,
APPELLEE

___________________________________________________

APPEAL FROM THE PROBATE COURT NO. 2,
BEXAR COUNTY, TEXAS
TRIAL COURT NO. 2010-PC-3012
HONORABLE TOM RICKOFF, JUDGE PRESIDING

___________________________________________________

APPELLANT’S BRIEF
___________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

STATEMENT OF THE NATURE OF THE CASE

Now comes , MARCELO R. MONTEMAYOR, Devisee and

as prior Executor of the ESTATE OF LUISA R.

1
MONTEMAYOR, NO. 2010-PC-3012 in the Probate Court NO.

2, the trial court below, and the Appellant herein, and

respectfully submits his Brief in appeal from the Order

Granting Summary Judgment and No-Evidence Summary

Judgment.

STATEMENT OF JURISDICTION

Appellant files this appeal pursuant to TRAP Rule 25

and 44. Appellant submits that he has complied with all

conditions precedent to invoking the jurisdiction of the

Fourth Court of Appeals.

STATEMENT REGARDING THE RECORD

The Record consisting of the following: Clerk' s

Record Vol. 1 of 1 (CR). It includes Court Reporter's

Vol. 1, Transcript of hearing on Motion for Summary

Judgment on May 7, 2015 (Trans. p 1-15). The Court should

take judicial notice of all evidence and documents

presented in appeal to this Court in Case No. 04-14-00391-

CV, IN THE ESTATE OF LUISA R. MONTEMAYOR, Deceased--

Memorandum opinion. Tex. R. Evid. 201

2
 SUMMARY OF THE ARGUMENT

The trail court erroneously granted Appellee's

traditional and no-evidence motion for summary judgment.

The no-evidence motion for summary judgment did not

meet the specificity requirements of Tex. R. Civ. P.

166a(i); and that there was sufficient evidence to

establish disputed issues of material fact and avoid

summary judgment against Appellant.

The traditional motion for summary judgment did not

establish, nor specify grounds or necessary facts to show

that there are no genuine issue as to material fact that

entitles her to judgment as a matter of law as required by

the Tex. R. Civ. P. 166a(c).

ISSUES AND ERRORS PRESENTED
POINT OF ERROR NUMBER ONE
The Trial Court abused its discretion and erred in
Granting Summary Judgment and No-Evidence Summary
Judgment.

3
 STATEMENT OF THE FACTS AND PROCEDURAL BACKGROUND

This is an appeal by MARCELO R. MONTEMAYOR, Appellant,

who was appointed Independent Executor of the ESTATE OF

LUISA R. MONTEMAYOR, by order signed on November 1, 2010

(CR p 8) and served until April 14, 2014. (CR p 40)

For the period of November 1, 2010 until April, 14,

2014, your appellant was the duly appointed Independent

Executor.

On December 6, 2010, as Executor and as per a sale of

the real property, (as per the terms of the "Will of LUISA

R. MONTEMAYOR") Appellant executed and signed an

"Executor's Deed" to Marcelo R. Montemayor, individually.

(CR p 25-27 and p 52-54)

The consideration for the sale of the real property

was $50,000.00 "as is", which was available for

distribution and are still in trust for payment to

devisees. (CR p 48-54) (Trans p 13)

Three years after the appointment, On December 3,

2014, Appellee, individually and as devisee, (it is noted

4
that appellee is not the executor of the estate) filed a

petition alleging a "claim for quiet title" and a "claim

for slander of title". (CR p21-24)

On January 26, 2015, Appellant filed its demand for a

jury trial and general denial; and further stated by way

of affirmative (fair notice of counter-claim of ownership)

defense that "act (real estate sale) of 'sell, mange, and

dispose' was done under the power of the executor" (CR p

29-31)(see "Will" in case no. 04-14-00391-CV)( see

Defendants' response to motion for summary judgment, CR p

43-77) The sale complied with the terms of the "Will".

On May 7, 2015, the Court, without hearing evidence,

grants order for summary judgment and no evidence summary

judgment voiding the said executor's deed.

STANDARD OF REVIEW

In conducting a legal sufficiency of a summary

judgment this Court should review the trial court's summary

judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.

3d 860, 862 (Tex. 2010) The Court should review the

evidence presented in the motion and response in the light

5
most favorable to the party against whom the summary

judgment was rendered, crediting evidence favorable to that

party, disregarding contrary evidence (if any). Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding 289 S.W.

3d 844, 848 (Tex. 2009)

STATEMENT, ARGUMENT AND AUTHORITIES
ISSUES AND ERRORS RESTATED
POINT OF ERROE ONE

The Trial Court abused its discretion and erred in
Granting Summary Judgment and No-Evidence Summary
Judgment.

Appellant in his answer to Appellee's petition filed a

jury demand and general denial answer. (CR p29-30) In it he

asserts: 1. an affirmative (claim of ownership) defense;

2. that the sale of the real estate here-in was an act of

"sell, mange, and dispose" and was done under the power of

the executor duly appointed; 3. that it was done according

to the terms of the "Will". (CR p 29)(Response to motion

and attached affidavits and exhibits CR p 43-77)

Appellant says that this pleading is fair notice that

6
he has a counter claim, in that the property was sold under

the power and authority of the Luisa's will and appointment

thereof by the probate court. (CR p 50-51,affidavit of

Byron Barnett, Attorney at law) This is fair notice that

Appellant plead a counter claim of ownership to the

property in question. Low v. Henry. 221 S.W.3d 609,612

(Tex. 2007)

This case has been at issue (value of real estate in

question, it should be noted that the property was the

community property of our parents Luisa and Miguel

Montemayor, who died without a will Nov 20, 2004), since

the death of Luisa R. Montemayor on August 29, 2008 (CR p

12-Proof of Death); thru the letter of April 30, 2010 where

Appellee, Graciella Calentine, asserts her share of the

estate is $10,600.00. (CR p 55) Up until December 6, 2010,

when the real estate property is sold for $50,000.00 "as

is", your Appellant asserts that each share of each devisee

(heir of the estate) is worth $5,555.55. (CR p 48-49)(see

defendants response to motion for summary judgment CR p 43-

77)

7
 In this appeal, this Court should review Appellee's

traditional summary judgment and determine whether it has

stated "specific grounds thereof" and that "there is no

genuine issue as to any material fact..." Tex. R. Civ. Pro

166a(c). The general principle is "if the grounds for

summary judgment are not expressly presented in motion for

summary judgment itself, the motion is legally insufficient

as matter of law." Rentfro v. Cavazos, No. 04-10-00617-CV,

2012 SL 566364 *5 (Tex. App.-San Antonio 2012, pet. den.)

(mem. op), citing McConnell v. South Side Ind. Sch. Dist.,

858 S.W.2nd 337, 342-3 (Tex. 1993)

Appellee did not state the grounds on which she is

entitled to the judgment. "There is nothing onerous or

unreasonable about requiring the movant to state the

grounds upon which he (she) seeks to win a lawsuit without

a trial." Rentfro, quoting Roberts v. Southwest Texas

Methodist Hospital, 811 S.W. 2nd 141 (Tex. App.--San

Antonio 1991, writ denied)

Appellee has not produce evidence and has not

specified grounds for which she would be entitled to

8
summary judgment base on her claims of "quieting title and

slander of title" to the real estate in question.

The Court should review the no evidence motion for

summary judgment under Rule 166a(i). It states:

"The motion must state the elements (which she
has not) as to which there is no evidence. The
court must grant the motion unless the respondent
(appellant) produces summary judgment evidence
raising a genuine issue of material fact."

"To defeat a motion made under paragraph (i), the
respond is not required to marshal its proof; its
response need only point out evidence that raises
a fact issue on the challenged elements." Tex. R
Civ. Pro 166a(i), and the Notes & Comments state:

In Texas Supreme Court case Southwest Electric

Power Company v. Grant, the applicable law on summary

judgment is as follows:

"To prevail on a traditional summary-
judgment motion, a movant must show that no
genuine issue of material fact exists and
that it is entitled to judgment as a matter
of law. TEX.R. CIV. P. 166a(c). A movant who
conclusively negates at least one essential
element of a cause of action is entitled to
summary judgment on that claim. (citation
omitted) When reviewing a summary judgment,
we take as true all evidence favorable to the

9
 nonmovant, and we indulge every
reasonableinference and resolve any doubts in
the nonmovant's favor. (citation omitted)

"To prevail on a no-evidence summary-
judgment motion, a movant must allege that
there is no evidence of an essential element
of the adverse party's claim. TEX.R. CIV. P.
166a(i). Although the nonmoving party is not
required to marshal its proof, it must
present evidence that raises a genuine fact
issue on the challenged elements. See TEX.R.
CIV. P. 166a, notes and cmts.

Southwest Electric Power Company v. Grant 73 S.W.3d

211, 216 (Tex. 2002)

The court must accept as true evidence favoring the

respondent/non-movant (Appellant), indulging every

reasonable inference and resolving all doubts in his favor.

Park Place Hosp. v. Estate of Milo, 909 S.W. 2nd 508, 510

(Tex. 1995)

Appellant asserts that he has produced (in appellant's

pleadings and jury demand; his response the motion for

summary judgment and attached affidavits) the following

facts which constitute genuine issues of material fact:

 whether the sale of the property was valid under the
terms of the will of Luisa R. Montemayor;

10
  whether the $50,000.00 for the property was reasonable
consideration;
 whether the validity of sale as stated, in the
affidavit of Mr. Barnet, Attorney at law, who prepared
the will in question; that the executor's deed of
December 6, 2010 was executed within the terms--power
and authority--of the Will, (CR p 50-51);
 affidavit of Appellant (CR p 48-49, 55) stated:
o on April 30, 2010 (CR p 55) Appellee and other
heirs demand $10,600.00 each as their share of the
estate;
o he was appointed Executor on November, 1, 2010;
o he executed the deed in question on December 6,
2010 as sale of the property;
o stated that the consideration for the sale was "as
is" $50,000.00;
o the value of the property was estimated by Mr.
Mayo at $41,000; (CR p 56-77 exhibit attached to
appellant's response to motion to summary
judgment);
o that each share of the estate is worth $5,555.00
o that the $50,000.00 is available for distribution
and that it is in a trust account,
o that the response to motion for summary judgment
raised issues of value of the real estate, value
of each heirs share in the estate;
o comparative market analysis prepared by John D.
Mayo estimates value of real estate at $41,000.00,
(CR p 56-77 exhibit attached to appellant response
to motion to summary judgment).

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, the Appellant,

prays that the Court of Appeals reverse the Judgment of

the trial court below granting judgment to Appellee;

11
that the case be returned to the trial court for a jury

trial to determine appellant's counter-claim, the

validity of the sale and executor's warranty deed, and

the value of the property, and the value of the shares

for each of the heirs of Luisa R. Montemayor.

Respectfully submitted,
/S/
Marcelo R. Montemayor,Pro Se
Appellant and Attorney at Law
P.O. Box 831651
San Antonio, Texas 78283-1651
phone (210) 842-5043
email: one-marcelo@juno.com

12
 Certification

I hereby certify that every factual statement
in this appeal is supported by competent
evidence in the clerk's record and court
reporters' transcript.

/S/
Marcelo R.Montemayor

Certificate of Compliance

I hereby certify that this brief is in
compliance with Texas Rule of Appellate Procedure
Rule 9. It contains 2,800 words, less than 20
pages, 14 point typeface.

/S/
Marcelo R.Montemayor

CERTIFICATE OF SERVICE

This is to certify that a true and correct
copy of this document has been served on Reed
Greene, Appellees Attorney at email
egreene2@satx.rr.com on this September 15,
2015.

/s/________________
Marcelo R. Montemayor

13