December 7, 2015
CAUSE NO 03-15-00513-CV
In the Court of Appeals
Third Court of Appeals District
Austin, Texas
ELWYN D. SHUMWAY, APPELLANT
vs.
WHISPERING HILLS OF COMAL COUNTY, TEXAS
PROPERTY OWNERS ASSOCIATION, INC.,
APPELLEE
Appeal from Case No. C2015-0215A; 22nd Judicial District
Comal County, Texas
Hon. Dibrell Waldrip, Presiding
REPLY BRIEF
Elwyn D. Shumway
Pro Se Litigant
8406 Zodiac
Universal City, TX 78148 (^^RECfKP
(210) 860-6613 Cell / 'C"
shumd@att.net / DEC ° ^015
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellant Procedure 38.1(a),
Appellant presents the following list of all parties and
names and address of its counsel:
Appellant/Plaintiff: Pro Se Litigant;
Elwyn D. Shumway Elwyn D. Shumway
8406 Zodiac
Universal City, TX 78148
(210) 860-6613 Cell
shumd@att.net
Respondent:
The Honorable Dibrell Waldrip
433rd Judicial District
Comal County, Texas
150 N. Seguin, Suite 317
New Braunfels, TX 78130
Appellee/Defendant: Counsel:
Whispering Hills of Comal Mr. Zachary B. Aoki
County Property Owners State Bar No. 01275870
Association, Inc. Thurman & Phillips, P.C.
4 093 De Zavala Road
San Antonio, TX 7824 9
(210) 341-2020
zaoki@thurman-phillips.com
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL 1
TABLE OF CONTENTS 2
REPLY BRIEF BY APPELLANT 3
COMMENTS ON BRIEF OF APPELLEE 6
APPELLANT'S SUMMARY OF BRIEF OF APPELLEE 14
PRAYER 16
CERTIFICATE OF COMPLIANCE 17
CERTIFICATE OF SERVICE 18
CAUSE NO 03-15-00513-CV
In the Court of Appeals
Third Court of Appeals District
Austin, Texas
ELWYN D. SHUMWAY, APPELLANT
vs.
WHISPERING HILLS OF COMAL COUNTY, TEXAS
PROPERTY OWNERS ASSOCIATION, INC.,
APPELLEE
Appeal from Case No. C2015-0215A; 22nd Judicial District
Comal County, Texas
Hon. Dibrell Waldrip, Presiding
REPLY BRIEF
TO THE HONORABLE COURT OF APPEALS:
Appellant, Elwyn D. Shumway, pro se litigant, files
this Reply Brief to Appellee's Brief of Appellee and
respectfully states:
At the trial court, Appellee asked the court to dismiss
the case. The trial court decided to do so and granted
Appellee's request. The trial judge indicated the
Appellant could appeal the decision. The Appellant asked
the trial judge what the specific basis was for granting
dismissal. The trial judge stated that as a matter of law
he was ruling that the statute of limitations has run. The
trial judge further stated that we are not talking about
the facts, allegations or the merits of the case but rather
we are talking about the facts regarding the statute of
limitations (2RR pgs 58-59 starting at line 6 of pg 58).
The issue that emerged before the trial court was
whether or not the four year statute of limitations which
applies to promissory estoppel as a cause of action had
expired before Appellant filed his petition on February 14,
2015. To make such a determination the date the statute of
limitations must be established. As discussed more fully
and properly cited in Appellant's Brief, the Appellee is
required to prove as a matter of law the date on which the
limitation commenced, i.e., when the cause of action
accrued and that the Plaintiff/Appellant filed its petition
outside the applicable limitations period. When the cause
of action accrued is the date of accrual. As discussed in
the Appellant's Brief, three conditions need to be met for
a date of accrual to exist: a legal injury, an actual
controversy or dispute to be resolved by a court, and the
earliest date the plaintiff had authority and an
opportunity to file a claim in court.
When a movant asserts limitations as a defense, the
Plaintiff/Appellant then needs to adduce proof, raising
issue in avoidance of the statute of limitations. The
Appellant has done so in the ISSUES PRESENTED in
Appellant's Brief and firmly believes considering the
information in the record the trial court erred in granting
dismissal.
COMMENTS ON BRIEF OF APPELLEE
On November 25, 2015 the Appellee filed Appellee's
Brief of Appellee. The following are Appellant's comments
regarding statements made in that brief in the order the
statements are presented.
1. Reference the last sentence, page viii, ISSUES
PRESENTED. At the June 17, 2 015 hearing, the trial
judge did say that as the way the petition is now
worded there was no basis in law regarding the
allegations (1RR, page 18, lines 6-10). However, the
trial judge provided the Appellant an opportunity to
rewrite the cause of action which was done in the
Second Amendment to petition. Subsequently, the trial
judge did not make a decision that the pleadings did
not state a claim.
2. Reference second to last line, page 2, STATEMENT OF
FACTS. The Appellee states that Mr. Bepko stated that
some owners, including the Appellant, had a dispute
with the Association. Actually, Mr. Bepko stated he
was aware there was a disagreement with .. (CR 7).
Perhaps a small distinction except when considering the
criteria for establishing a date of accrual which
determines the starting date for statute of
limitations. Appellant has explained in ISSUE
PRESENTED #1 of Appellant's Brief that a cause of
action does not accrue and the statute of limitations
is not operative until an actual controversy has
arisen. There was no actual controversy or big dispute
created until well within the period of limitations.
3. Reference page 4, SUMMARY OF THE ARGUMENT. Appellee
states the trial court acted properly because the
allegations establish that the APPELLANT had no right
to use his lots for business purposes. The record does
not reflect the trial judge making such a decision.
Furthermore, this is a matter to be determined when and
if the Appellant's Petition is heard in a court of law
and is not a factor pertaining to the issue of
limitations. What the trial judge did, however, is
grant Appellee's Motion to Dismiss thus preventing
Appellant's petition from being considered by a court
unless the Court of Appeals agrees with the Appellant's
appeal.
On this page, the Appellee also states the trial
court acted properly because the Appellant knew he
could not use his property for business purposes more
than four years before he filed suit. Case law does
not provide that simply knowing something for an
undetermined period of time starts the time for statute
of limitations to begin. The criteria and standard for
doing so, i.e., to establish a "date certain" is
discussed fully in the ISSUES PRESENTED of Appellant's
Brief.
4. Reference Sections I, II and III, pages 5 to 9,
ARGUMENT. In Section I, Appellant agrees the court is
to review de novo and wishes to point out that all the
matters included in Appellant's Brief are included in
the record considered by the trial judge. Also,
Appellant wishes to point out that even though
Appellant's Second Amended Petition is part of the
record, the trial judge never read it (2RR, pg 6, lines
7-9); however, it was made known that the cause of
action in the rewritten petition was promissory
estoppel. Even though the trial judge did not read the
Second Amendment, the Appellant believes the Court of
Appeals should include it in its consideration. The
exhibits are the same for the Original, the Amended and
the Second Amendment. In Section II, the Appellee
states the trial court did not have the power to
rewrite the unambiguous deed. Appellant has never
asked the court or the homeowners association (i.e.,
Appellee) to rewrite or change the deed as written and
recorded in any way (see 2RR, pg 17, lines 9-16 and pg
31, lines 7-8) and there is no need to. As discussed
in the Second Amended Petition, Appellant's request to
use lots for either residential or business can be
accommodated without any change to the deed. (Note:
With regard to the court's authority, item 17 of the
deed restrictions does indicate a court has the
authority to invalidate any of the covenants and
restrictions. See Exhibit "A" to Enclosure, CR 8).
8
The remainder of Appellee's statements in Section II do
not pertain to the issue of limitations. In Section
III, page 7,the Appellee has added a footnote referring
to Federal Rule for Civil Procedures 12(b)(6) which is
included as Appendix A. That rule provides that the
failure to state a claim upon which relief can be
granted may be used as a defense but that defense is to
be made by a motion. There is no such motion in the
record considered by the trial court. In the footnote,
Appellee refers to GoDaddy.com LLC v. Toups (the cite
is provided in the footnote). In this case, under II
STANDARD OF REVIEW, several cases are cited. Of note
is Ashcroft, 556 U.S. at 678-79, 129 S. Ct. 1937 which
provides that under Federal rules, the complaint is
liberally construed in favor of the plaintiff and all
well pleaded facts are taken as true. In Twombly, 550
U.S. at 570, 127 S. Ct. 1955, it is concluded that in
determining whether the trial court erred the court is
to take all of plaintiff's allegations as true and
conclude whether plaintiff's petition contains enough
facts to state a claim to relief that is plausible on
its face. Further, in Scanlon v. Tex. A & M Univ.,
343, F.3d 533, 536 (5th Cir. 2003), it is specified
that dismissal is appropriate if the court determines
beyond doubt that the plaintiff can prove no set of
facts to support a claim that would entitle him to
relief. Also in the footnote reference is made to Mann
v. Adams Realty Co. (the cite provided in footnote.).
9
In the court's consideration of the motion to dismiss
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2
L. Ed. 2d 80 (1957) is cited which provides that a
motion under Rule 12(b)(6) for failure to state a claim
is an appropriate method for raising a statute of
limitations defense, it has long been the rule that a
complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.
Appellant clearly established in his petition a
claim that his lots should be able to be used for
either residential or business. Further, Appellant
believes there are sufficient facts provided in his
petition to support the claim. A summary of some facts
and evidence is contained on page 6 of Second Amendment
to Petition (CR 8).
Reference Section III, pages 7, paragraph A. As a
matter of law, the Defendant/Appellee must conclusively
prove a date of accrual as the date limitations begins
to run. The elements required to establish a date of
accrual are included in discussion of ITEMS PRESENTED
in Appellant's Brief. One of the elements to be proven
is the date when a person first had an opportunity to
file a petition. The Appellant established as a fact
that he did not have possession of any document(s) to
provide a basis or opportunity for filing a petition
10
until he first got possession of the letter signed by
Mr. Bepko (CR 7) which was within the period of
limitations. The circumstances and time when Appellant
got possession of the letter is discussed at 2RR, page
27, line 24 to line 14, pg 28. It is also discussed in
more specific detail in Appellant's Brief under ISSUE
PRESENTED #3, bottom of page 16 to middle of page 17.
The earliest date Appellant could have gotten
possession of the letter is January 25, 2012.
Reference Section III, pages 7-9, paragraph B. The
Appellee states that the Appellant stated he did not
suffer a legal injury until he inquired (underline
added) about the use of his property for business
purposes. This statement is inaccurate and nothing in
the record supports Appellee's statement. As discussed
in the record and further included in discussion of
ISSUE PRESENTED #2 of Appellant's Brief, Appellant
contends the legal injury did not occur until Appellant
first requested the homeowner's association (Appellee)
to consider documents to support Appellant's request
(request submitted on November 13, 2014 (Tab 7 of
Appellant's Brief) and the request was denied on
December 1, 2014 (CR 2) and/or when the Appellee
notified Appellant that after years of consideration
Appellee was going to file a dedicatory instrument
stating that all lots must be used strictly for
residential purposes (CR 8). Appellant objected as
evidenced by the Appellant's Affidavit filed on January
11
8, 2 015 (CR 12). The matter of when legal injury
occurred is included in discussion of the ISSUES
PRESENTED of Appellant's Brief.
The Appellee refers often to the contract for deed
but does not address the one recorded document which
should be controlling - that being the Appellant's
Warranty Deed. Appellant believes the discussion
regarding what the deed provides, or for that matter
what can be proved was the developer intent, is a
matter to be considered when the merits of the case can
be heard and is not a pertinent matter when considering
the issue of whether or not the Appellant filed his
petition within the period of limitations. Finally, at
the top of page 9 Appellee states Appellant wants to
disavow those portions of the Bepko letter that do not
benefit him. There is nothing in the record to support
such assertion and there is nothing in the letter
Appellant wishes to disavow.
5. Reference page 9, APPELLEE'S CONCLUSION. The
Appellee's overall conclusion is that there is no basis
in law to declare that Appellant was entitled to use
his property for business purposes - therefore the
trial court did not commit an error. This assertion
does not address the issue upon which the appeal is
requested -- specifically statute of limitations.
Given an opportunity to have Appellant's petition
12
considered in a court, a determination can then be made
regarding the authorized use of Appellant's property.
13
APPELLANT'S SUMMARY OF BRIEF OF APPELLEE
The single issue that emerged from the hearings at the
trial court level was whether or not the
Defendant/Appellant filed his petition within or outside
the four year period of limitations. It was on this issue
alone that the trial judge stated he decided as a matter of
law to grant Defendant/Appellee's motion to dismiss. The
Appellant argues the Appellee did not conclusively prove
the date the period of limitation commenced and in
Appellant's Brief has provided ample evidence to support
Appellant's argument. Appellant further argues that the
trial judge in considering the facts in the record
regarding the statute of limitations made an error in
concluding that the statute of limitations had run.
Appellant has considered the Brief of Appellee and
finds nothing that convincingly refutes the content of
Appellant's Brief. In fact, in the Appellee's overall
CONCLUSION, page 9, the Appellee chose to address the issue
of use of property rather than providing argument on the
issue of limitations.
In summary, the Appellant stands by the arguments made
in Appellant's Brief and does not believe any information
provided in the Brief of Appellee diminishes those
arguments. Further, Appellant firmly believes ample
evidence has been provided to satisfy the standard of
14
review for reversible error stipulated in Rule 44 of the
Texas Rules of Appellant Procedures.
15
PRAYER
Appellant respectfully requests the Court of Appeals
grant the prayers included in Appellant's Brief.
Respectfully submitted
ELWYN fe. SHUMWAY V
Pro Se Litigant
8406 Zodiac
Universal City, TX 7814 8
(210) 860-6613 - cell
shumd@att.net
16
CERTIFICATE OF COMPLIANCE
I certify the Appellant's Reply Brief does not exceed
the word count or page limit as set forth in the Texas
Rules of Appellant Procedure.
LWYN *D. SHUMWAY /
17
CERTIFICATE OF SERVICE
I certify that the undersigned provided a true and
correct copy of this document to the Appellee by certified
mail on ^i^il^^J 4} flfl/jT.
-*
ELWYNA. SHUMWAY'
18
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