Antonio Arriaga and Inez Lara Rosales v. Obdulia Martinez Arriaga, Antonio Martinez Arriaga Jr., and Reyna Luisa Martinez Arriaga ( 2015 )

ACCEPTED
13-15-00038-CV
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
7/1/2015 4:53:43 PM
CORPUS CHRISTI - EDINBURG CECILE FOY GSANGER
CLERK
7/1/15
CECILE FOY GSANGER, CLERK
BY PFowler CAUSE NO 13-15-00038-CV RECEIVED
FILED IN
IN THE COURT OF APPEALS 13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICTCORPUS CHRISTI/EDINBURG, TEXAS
OF TEXAS
CORPUS CHRISTI/EDINBURG7/1/2015 4:53:43 PM
CECILE FOY GSANGER
Clerk
ANTONIO ARRIAGA AND INEZ LARA ROSALES, APPELLANTS
VS.
OBDULIA MARTINEZ ARRIAGA, ANTONIO MARTINEZ ARRIAGA, JR.,
AND REYNA LUISA MARTINEZ ARRIAGA, APPELLEES
On Appeal from the 197TH DISTRICT COURT
WILLACY COUNTY, TEXAS
Trial Court Cause No. 2014-CV-0100-A
APPELLANTS' BRIEF
Honorable Juan Angel Guerra
State Bar No. 08581320
Law Office of Juan Angel Guerra
1021 Fair Park Blvd.
Harlingen, Texas 78550
Telephone (956) 428-1600
Fax (956) 428-1601
juanangelguerra1983@gmail. Corn
ATTORNEY FOR APPELLANTS
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
The presiding judge was the Hon. Judge Migdalia Lopez, of the 197th District
Court, 576 West Main, Raymondville, Willacy County, Texas 78580.
1. The Appellants are Antonio Arriaga and Inez Lara Rosales.
2. The Attorney for the Appellant is the Hon. Juan Angel Guerra, 1021 Fair
Park, Harlingen, Cameron County, Texas 78550.
3. Appellees are Obdulia Martinez Arriaga, Antonio Martinez Arriaga, Jr., and
Reyna Luisa Martinez Arriaga.
4. The Appellees were represented by the Hon. Gene McCullough, P. 0. Box
2244, Harlingen, Cameron County, Texas 78551. 956-423-4976 Fax,
SB#00794267, gene@gmcculloughlaw.com
Is/
Juan Angel Guerra
Key:
RR: Reporter's Record
CR: Clerk's Records
Supp: Supplement
App: Appendix
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL
TABLE OF CONTENTS ii, iii
INDEX OF AUTHORITIES iv, v, vi, vii, viii, ix, x, xi
STATEMENT OF THE CASE xv, xiv
STATEMENT REGARDING ORAL ARGUMENT xvii
ISSUES PRESENTED xii, xiii
ISSUE NO. ONE 4
Did the trial court err by granting special exceptions that gave no opportunity for
Appellant to present his case pursuant to the Uniform Declaratory Judgments Act
in that said statute allows matters of deeds (§37.004) (Texas Civil Practice and
Remedies Code) and thereby the court abused its discretion by ignoring said statute
and abused its discretion by dismissing Appellants' case in that the Appellants did
not amend due to the fact that their cause of action may only be resolved through a
declaratory judgment action and the court refused to hold a hearing once the
Appellants obtained a copy of the special exceptions?
ISSUE NO. TWO 13
Did the Trial Court err by dismissing a plea in intervention in that the Court does
not have the authority to dismiss a plea in intervention based on Rule 91a of the
Texas Rules of Civil Procedure and the Court abused its discretion by refusing to
grant leave to Late File Response to Motion to Dismiss?
ISSUE NO. THREE 18,19
Did the Trial Court err by granting Appellees' Motion to Dismiss pursuant to Rule
91a of the Texas Rules of Civil Procedure in that Appellees did not fulfill the
mandates of the Rule in that they failed to identify each cause of action it
addressed, and the Rules require that movant must state specifically the reasons the
cause of action has no basis in fact or in law in that it is an abuse of discretion to
allow Appellees not to follow the requirements of a rule in that the court lacks
jurisdiction for it not to follow established procedures for pleas in intervention
and/or for Rule 91a of the Texas Rules of Civil Procedure?
ISSUE NO FOUR 21
Did the Trial Court err by an abuse of discretion in that the order signed on
December 15, 2014 is not a final order due to the lack of finality in that not all
relief requested was not addressed, it was a dismissal order however, it gave
affimiative relief which causes reversible error and was not final and the court
granted Appellees' relief not requested by the pleadings and then without any
presentation of evidence, the court gave validity to ownership rights to one which
only had "bare legal" title to a property in which another individual, the Appellant,
has ownership? Therefore, the Court of Appeals should vacate the order of dismissal
or remand the case with instructions.
ISSUE NO FIVE 26
Did the Trial Court abuse its discretion by not obligating Appellees to notify the
Appellants of whatever motion was to be heard in that the Trial Court violated
Appellants' personal and property rights by not informing Appellants what each
hearing was to be about even after Appellants expressed their objections in writing
and during the hearings?
ISSUE NO. SIX 30
Did the court err by not allowing evidence to be received and to be developed
which would resolve the issue of law as to the law of gifts, deeds, and interspousal
transfers of property and thereby did the court fail to apply the law on gifts and as a
matter of law, the gift has failed and thereby the court of appeals should vacate
order of dismissal in that it is an abuse of discretion not to follow and apply the
law?
STATEMENT OF FACTS 1
SUMMARY OF THE ARGUMENT 3
PRAYER 33
CERTIFICATE OF SERVICE 35
APPENDIX 37,38
CERTIFICATE OF COMPLIANCE 36
INDEX OF AUTHORITIES
CASES PAGES
Alvarado v. Magic Valley Electric. Co-op, Inc. 784 S.W.2d 729, 733 (Tex. Civ.
App.-San Antonio 1990, writ denied) 26
American Casualty & Life Insurance Co. v. Boyd 394 S. W. 2d 685,688 (Tex.
Civ. App. —Tyler 1965 no writ) 24
American Transfer & Storage Co. v. Reichley, 543 S.W.2d 162, 164 (Tex. Civ.
App.-Amarillo 1976, writ ref d) 6
BP America Production Co. v. Marshall (App. 4 Dist. 2008) 2008 WL 2828655,
withdrawn and superseded on rehearing 288 S.W.3d 430, rehearing overruled,
review granted, reversed 342 S.W.3d 59, petition for rehearing filed, rehearing
denied (Tex. 2011) 10
Bahr v. Kohr, 980 S.W.2d 723, 727 (Tex. Civ. App.- San Antonio 1998, no pet.). .
33
Bell v. State Department of Highways & Public Transportation, 945 S.W.2d
292, 294 (Tex. Civ. App.-Houston [1st Dist.] 1997, writ denied) 11, 12
Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995) 11
Bridewell v. Pritchett, 562 S.W.2d 956, 958 (Tex. Civ. App.-Fort Worth
1978, writ ref. n r e) 7
Carter v. Carter, 736 S.W.2d 775, 779 (Tex. Civ. App.-Houston [14th Dist.]
1987, no writ) 32
Carpenter v. Cimarron Hydrocarbons Corporation, 98 S.W.3d 682 (Tex. 2002) .
19
City of Austin v. Castillo, 25 S.W.2d 67, 75 (Tex. Civ. App.-Corpus Christi 1997,
writ denied.) 24
Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970) 23
iv.
Crawford v. XTO Energy, Inc. 455 S.W.3d 245 (Tex. Civ. App.-Amarillo 2015)
(pet. pending). 10
Dawson v. Dawson, 767 S.W.3d 949, 951 (Tex. Civ. App.—Beaumont 1989,
no writ) 32
Dawson v. Tumlinson, 150 Tex. 451, 242 S.W. 2d 191,192-193 (Tex. 1951) . .
7
De La Garza v. Express —News Corp, 722 S.W.3d 251, 253 (Tex. Civ. App.-
San Antonio 1996, no writ.) 26
Devon Energy Production Co. v. K Resources, LLC., 450 S.W.3d 203 (Tex. Civ.
App.-Houston [14th Dist.] 2014) (pet. pending) 10, 11
Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977) 28
Energy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) 20
Flores v. Flores, 225 S.W.3d 651 (Tex. Civ. App.-E1 Paso 2006) (writ den ). 6
Flores v. Melo-Palacios, 921 S.W.2d 399, 404 (Tex. Civ. App.-Corpus
Christi 1996, writ denied) 15
Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255 ( Tex.1955) 7
Garcia —Marroquin v. Nueves City Bail Bond Board. I S. W. 3d 366, 379 n. 8
(Tex. Civ. App.—Corpus Christi 1999, no pet.) 25,26
Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 586-87 (Tex. Civ. App.—San Antonio
1998, pet. denied)... 15
Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012) 12
Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657
(Tex.1990) 14, 15, 16, 17, 18
Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004) 11
Harrison v. Harrison, 321 S.W.3d 899, (Tex. Civ. App.—Houston 14th Dist.] 2010)
(no writ hist.) 8
v.
Hatton v. Burgess, 167 S.W.2d 260, 262-63 (Tex. Civ. App.-Beaumont 1942 writ
red w.o. m.) 24
Hatfield v. Board Of County Commissioners for Converse County, 52 F.3d
856, 862 (10th Cir. 1995) 12
Hawk v. E. K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex. Civ. App.—Eastland
2003) (pet. den.). 11, 12
Hilley v. Hilley, 342 S.W.3d 565, 569 (Tex. 1961) 31
In the Interest of C.W., SV.R., and L.L.C., 65 S.W.3d 353 (Tex. Civ. App.—
Baumont 2001) (no writ hist) 28
Intermarque Automotive Products v. Feldman, 21 S.W.3d 544, 548 n.7 (Tex. Civ.
App.—Texarkana 2000, no pet) 16, 17
1-10 Colony, Inc. v. Chao Kuan Lee, 393 S.W.3d 467 (Tex. Civ. App.-Houston
[14th Dist.] 2012) (pet. den.) 9,11
In re Brilliant, 86 S.W.3d 680 (Tex. Civ. App.-E1 Paso, 2002)(no writ hist.). . .29
In re Daredia, 317 S.W.3d 247, 248 (Tex.2010) 25
In re Does, I-10, 242 S.W.3d 805, (Tex. Civ. App.-Texarkana 2007)(no writ
hist) 20, 29
In re Knott, 118 S.W.3d 899 (Tex. Civ. App.--Texarkana 2003) (no writ hist.) 28
In re Marriage of Moncey, 404 S.W.3d 701, 710 (Tex. Civ. App.-Texarkana
2013 no pet) 31
In re Marriage of Murray, 15 S.W.3d 202, 205 (Tex. Civ. App.-Texarkana 2000,
no pet . ) 31, 33, 35
In re M. N., 262 S.W.3d 799, (Tex. 2008) 19
In re Union Carbide Corporation, 273 S.W.3d 152, 156 (Tex.2008) 15, 17
vi.
John G. and Marie Stella Kennedy Memorial Foundation v. Dewhurst, 90
S.W.3d 268, 289 (Tex.2002) 12
Jones v. Jones, 804 S.W.2d 623, 627 (Tex. Civ. App.—Texarkana 1991, no
writ) .32
Jones v. Springs Ranch Co., 642 S.W.3d 551, 553 (Tex. Civ. App.—
Amarillo 1982, no writ) 23
Kennedy Con., Inc. v. Forman, 316 S.W.3d 129, 135 (Tex. Civ. App.-Houston
[14th Dist.] 2010, no pet) 10, 11, 12
Keim v. Anderson, 943 S.W.3d 938, 946 (Tex. Civ. App.-El Paso 1997, no writ.. .
24
Kimsey v. Kimsey, 965 S.W.2d 690, 694 (Tex. Civ. App.-El Paso 1998, pet. denied) .
24
Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. Civ.
App.—Fort Worth 2003, no pet) 15, 17
Lehmann v. Har-Con Corp. 39 S.W.3d 191, 205 (Tex. 2001) 25
Liberty Mutual Insurance Company v. Adcock, 412 S.W.3d 492 (Tex. 2013). . .
9, 20
Longoria v. Lasater, 292 S.W.3d 156, 165 (Tex. Civ. App.--San Antonio 2009,
pet. denied) 11, 12
Mangum v. Turner, 255 S.W.3d 223 (Tex. Civ. App.-Waco 2008) (pet. den.) 7
Magness v. Magness, 241 S.W.3d 910, 912 (Tex. Civ. App.- Dallas 2007, pet.
denied). 31
Mart. v. Amerman, 133 S.W.3d 262 (Tex. 2004) 6
Meekins v. Wisnoski, 404 S.W.3d 690 (Tex. Civ. App.-Houston [14th Dist.] 2013)
( no writ hist.) 10
vii.
Metromedia Long Distance, Inc. v. Hughes, 810 S.W.3d 494, 499 (Tex. Civ.
App.-San Antonio 1991, writ denied) 17
Missouri Pacific Railroad v. Cross, 501 S.W.2d 868, 872 (Tex. 1973) 19
Molinst v. Kimbrell, 356 S.W.3d 107, 411 (Tex. 2011) 20
Mowbray v. Avery, 76 S.W.3d 663 (Tex. Civ. App.-Corpus Christi 2002) pet den.) .
4
Mueller v. Banks, 302 S.W.3d 447, 448 (Tex. Civ. App.-Eastland 1957, writ
ref d) 17
National Loan Investors, L.P. v. Robinson, 98 S.W.3d 781 (Tex. Civ. App.-
Amarillo, 2003) (pet. den) 27
Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 440 (Tex. Civ. App.-E1 Paso
1998 pet. denied) 24
Pandozy v. Shamis, 254 S.W.3d 596 (Tex. Civ. App.-Texarkana 2008) (MAND.
Denied) 29
Pennsylvania Coal Co. v. Mahon, 260 U.S. 293, 43 S. Ct. 158, 67 L Ed. 322, 28
A.L.R. 1321 (1922) 28
Platt v. Platt, 991 S.W.3d 481, 483 (Tex. Civ. App.-Tyler 1999)(no pet) 29
Porras v. Jefferson, 409 S.W.3d 804 Tex. Civ. App.—Houston [14th Dist.]
2013)(no writ hist.) .20, 29
Potash Corporation of Saskatchewan, Inc. v. Mancias, 942 S.W.2d 61, 64 (Tex. Civ.
App.—Corpus Christi 1997, orig. proceeding). 16
Reaves v. Reaves, No. 11-11-00026-C. (Tex. Civ. App.—Eastland 2012, )(memo op. 8-
31-12) 31 (App. V)
Riley v. Brown, 452 S.W.2d 548, 551 (Tex. Civ. App.-Tyler 1970)( no writ) 32
viii.
Roach v Roach, 672 S.W.2d 524, 5130-31 (Tex. Civ. App. —Amarillo 1984, no writ)
32
Roosth v. Roosth, 889 S.W.3d 445, 457 (Tex. Civ. App.—Houston [14th Dist.] 1994,
writ denied) 32
Saldana v. Saldana, 791 S.W.2d 316, 320 (Tex. Civ. App.—Corpus Christi 1990)( no
writ). 18
Spillman v. Spillman, 757 S.W.2d 166 (Tex. Civ. App.-San Antonio 1988)(writ
dism'd) 5
Stew. v. USA Custom Paint &Body Shop, 870 S.W.2d 18, 20 (Tex. 1994) . . . ..24
Soto v. Sea-Road International, 942 S.W.2d 67, 78 (Tex. Civ. App.-Corpus Christi
1997; writ denied) 24
Southwestern Bell Telephone Company v. Public Utility Commission, 622 S. W 2d
82 (Tex. 1991) 17, 18
Transport Insurance Company v. Faircloth, 898 S.W.2d 269, 275 (Tex. 1995) .. 28
Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440 (Tex.
1993) 11
Thompson v. Dart, 746 S.W.2d 821, 825 (Tex. Civ. App- San Antonio 1988,)(no
writ) 7
University of Texas M.D. Anderson Cancer Center v. King, 417 S.W.3d 1 (Tex.
Civ. App.-Houston [14th Dist.] 2013)(no writ hist ) 29
Ward v. Ladner, 322 S.W.3d 692 (Tex. Civ. App.—Tyler 2010) (no writ hist.). . 6
Wells v. Wells, 251 S.W.3d 834, 839 (Tex. Civ. App.-Dallas 2007)( pet. denied)..
31
Wierzchula v. Wierzchula, 623 S.W.3d 730, 732 (Tex. Civ. App.-Houston [1st
Dist.] 1981)( no writ) 32
ix
CONSTITUTION
U.S. Constitution 3
Amendments IV, V, and XIV 28
Texas Constitution 3
Art. I § 13 1, 28
Art. 1 § 16 28
Art. 1 § 19 28
Art. 5 § 7 20, 29
Art. 16 § 15 31
STATUTES
Texas Business and Commerce Code Chapter 16 10
Chapter 26 6,10
26.01(a),(b) (4) 6
Texas Civil Practice and Remedies Code Chapter 37 .xv, 4, 8, 34
§37.004 ii,xii, 4, 8
§37.004(a) 11
§37.008 11
Texas Family Code 10, 14
§3.001(2) 31
Texas Estates Code 10
Texas Government Code §22.004(c) 19, 20
§24.030(a) 20, 29
Texas Property Code Chapter 22 8, 9
§22.001 9, 10
Uniform Declaratory Judgments Act Chapter 37 xii, 4, 11, 34
x
RULES
Texas Rules of Appellate Procedure Rule 44 33
Texas Rules of Civil Procedure Rule 60 14,15, 17
Rule 90 5
Rule 91a ii, xii, xvi, 13,
15, 16, 17, 18, 19, 20, 21,22
Rule 166a(c) 29.
Rule 301 24
Texas Rules of Judicial Administration Rule 6 27
Treatises/Encyclopedias/Dictionaries
28A.L.R.1321 (1922) 28
16 AM JUR 2D Constitutional Law §362 (1964) 28
Black's Law Dictionary 5th Edition, 1979 30
xi
ISSUES PRESENTED
ISSUE NO. ONE
Did the trial court err by granting special exceptions that gave no opportunity for
Appellant to present his case pursuant to the Uniform Declaratory Judgments Act
in that said statute allows matters of deeds (§37.004) (Texas Civil Practice and
Remedies Code) and thereby the court abused its discretion by ignoring said statute
and abused its discretion by dismissing Appellants' case in that the Appellants did
not amend due to the fact their cause of action may only be resolved through a
declaratory judgment action and the court refused to hold a hearing once the
Appellants obtained a copy of the special exceptions?
ISSUE NO. TWO
Did the Trial Court err by dismissing a plea in intervention in that the Court does
not have the authority to dismiss a plea in intervention based on Rule 91a of the
Texas Rules of Civil Procedure and the Court abused its discretion by refusing to
grant leave to Late File Response to Motion to Dismiss?
ISSUE NO. THREE
Did the Trial Court err by granting Appellees' Motion to Dismiss pursuant to Rule
91a of the Texas Rules of Civil Procedure in that Appellees did not fulfill the
mandates of the Rule in that they failed to identify each cause of action it
addressed, and the Rule requires that movant must state specifically the reasons the
cause of action has no basis in fact or in law and it is an abuse of discretion to
allow Appellees not to follow the requirements of a rule in that the court lacks
jurisdiction to allow Appellees not to follow established procedures for pleas in
intervention and/or for Rule 91a of the Texas Rules of Civil Procedure?
ISSUE NO FOUR
Did the Trial Court err by an abuse of discretion in that the order signed on
December 15, 2014 is not a final order due to the lack of finality in that not all
relief requested was not addressed, it was a dismissal order however, it gave
affirmative relief which causes reversible error and was not final and the court
granted Appellees' relief not requested by the pleadings and then without any
presentation of evidence, the court gave validity to ownership rights to one which
only had "bare legal" title to a property in which another individual, the Appellant,
has ownership rights?
Therefore, the Court of Appeals should vacate the order of dismissal or remand the
case with instructions.
ISSUE NO FIVE
Did the Trial Court abuse its discretion by not obligating Appellees to notify the
Appellants of whatever motion was to be heard in that the Trial Court violated
Appellants' personal and property rights by not infolining Appellants what each
hearing was to be about even after Appellants expressed their objections in writing
and during the hearings?
ISSUE NO. SIX
Did the trial court err by not allowing evidence to be received and to be developed
which would resolve the issue of law as to the law of gifts, deeds, and interspousal
transfers of property and thereby the court failed to apply the law on gifts and as a
matter of law, the gift has failed and thereby the court of appeals should vacate
order of dismissal in that it is an abuse of discretion not to apply the law?
CAUSE NO 13-15-00038-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG
ANTONIO ARRIAGA AND INEZ LARA ROSALES, APPELLANTS
VS.
OBDULIA MARTINEZ ARRIAGA, ANTONIO MARTINEZ ARRIAGA, JR.,
AND REYNA LUISA MARTINEZ ARRIAGA, APPELLEES
On Appeal from the 197TH DISTRICT COURT
WILLACY COUNTY, TEXAS
Trial Court Cause No. 2014-CV-0100-A
APPELLANTS' BRIEF
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
NOW COME, ANTONIO ARRIAGA AND INEZ ROSALES, Appellants
herein, and file this their Appellants' Brief in the above styled and numbered cause
and hereby present in their Appellants' Brief that they complain of a district court's
order of dismissal. Said court did not grant the relief that was necessary and did
not decide on the case and controversy presented to said court.
Therefore, Appellants humbly present their Brief in their appeal to this court.
xiv
STATEMENT OF THE CASE
Appellant, Antonio Arriaga, filed his lawsuit by invoking Chapter 37 of the
Texas Civil Practice and Remedies Code, i.e. the Uniform Declaratory Judgments
Act. After the divorce from his first wife, he opted to place the properties he had
bought during the second marriage under his children's names. This was done
with the second wife's consent with the understanding she still owned her half.
By filing the lawsuit, Appellant was attempting to put his house in order due
to his age. However, the court did not allow Appellant to have an opportunity to
defend himself much less present his case. The Court made its rulings without the
Appellants having been given the opportunity to know what the hearings were to
be about, the court granted special exceptions for the alleged use of the wrong
statute, ignoring the other statute which applied more appropriately and dismissed
an intervention by deciding it on the merits with no opportunity being given to the
Intervenor as prescribed by law and never made allowances for the lack of notice
of all the motion and hearings that were held, the court knowing that the Appellant
had not received any documentation that was being presented to the Court. The
court stated in its findings in the Findings of Fact and Conclusions of Law, No.3,
(CR. supp.) that Appellant did not amend his pleadings after the court granted the
special exceptions.
The trial court based its Order of Dismissal on (1) the alleged Appellant's
failure to cooperate with receiver; then (2) dismissed a Plea in Intervention on the
merits; (3) alleged failure to amend after the special exceptions were granted; (4)
ordered Appellants not to collect rents and because (5) Appellants never provided
certified copies of divorce decree or gift deed, and dismissed the case filed by
xv.
Intervenor due to Appellees' use of Rule 91a. On the "merits" side of the order,
the court ordered that Defendants, Appellees herein, were free to dispose of any of
the properties identified in the order. And the Plea in Intervention was dismissed
on the merits. (CR. v. I p. 137) That is the "Order of Dismissal."
xvi.
STATEMENT REGARDING ORAL ARGUMENT
Appellants humbly request that this court grant oral arguments. The Court
should grant oral argument for the following reasons:
The issues presented have not been conclusively decided. The crux of the
case is that one statute is being challenged with another statute, each of equal
dignity.
Unfortunately, the trial court did not allow for the Appellants to develop
their case; therefore, the facts are obscured by trial tactics that were allowed and
which did not address the facts to be determined.
Oral argument would give the Court a more complete understanding of the
facts presented in this appeal.
Oral argument would also allow the Court to better analyze the complicated
legal issues presented in this appeal.
The result of the oral argument would be that it would significantly aid the
Court in deciding this case.
xvii.
STATEMENT OF THE FACTS
During the marriage between the Appellants, they were able to accumulate
quite a number of properties. On or about 1990, Appellants discussed the future of
themselves and the children of the previous marriage, now the Appellees to this
lawsuit. In attempt to safeguard the property, Appellants opted to place the
properties in the names of said issue. This occurred and yet, the new wife helped
pay for the property that would be labeled separate property. (RR. v. 2 p. 14 1 12)
(p.15 1.7)
All of a sudden, a prodigal son evolved into a "quick —cash" seller. At all
times since 1990, Appellant, as owner of the properties, had been the administrator
for the properties and for the income, with total dominion and control. All of
sudden, Appellants were ousted from their property and Appellants filed this
lawsuit to have the property safeguarded as was originally intended. The prodigal
son is leading a riotous life and is now doing drugs.
What Appellees have is "bare legal" title. Appellees argue that once a
document is signed, it cannot be changed. (RR. v 2 p. 9 1. 12) That is not the law
nor the truth. They have no proof of equitable title in that there is none. They did
not pay any valuable consideration for any of the properties. Appellants believed
that this was the manner to organize their estate; however, they have not been
allowed the right to present their case to a court pursuant to the "Open-Courts"
Doctrine. (Constitution of the State of Texas, Art. I § 13.)
Appellant Arriaga apparently made himself understood in that even the
opposing counsel stated to the Court (RR v. 2 p. 10 1. 8-16) the following:
1
"[T]hen also, notwithstanding any argument that Mr. Arriaga may make
about the fact that his current wife may have an interest to this property, he has
conceded before this Court — now he wasn't under oath, but I believe that he did
intend to tell the Court the truth, that he intended to deliver half of the property, at
least a half interest, or he acknowledges delivering at least a half interest to the
property to his three children who are here today as defendants.
THE COURT: Yes, he says that."
He has intended to deliver but he has not delivered. He has dominion and
control.
The following is the list of the six (6) times Appellant informed the court he
had not received any documents that were being discussed at the four (4) hearings:
(1)RR v. 2 p. 191 24 p.201. 1-2
(2)CR v. 1 p. 37 through document
(3) CR v. 1 p. 63 through document
(4)CR v. 1 p. 78 through document
(5)RR. v. 3 p. 8 1. 13-15
(6) CR v. 1. p. 104 through document
For a total of six (6) times, Appellant requested that he be given notice of what
was to happen on the day of the hearing.
The chronological sequence of events pertaining to the special exceptions is
as follows:
1. 3 April, 2014 - Appellees, Defendants below, filed their special exceptions.
(Please note Appellants never received any notice or a copy.)
2. 8 May, 2014 - There was a hearing on April 23 and the special exceptions
were granted. The order was signed on 8th of May 2014 (CR. v. 1 p. 33)
2
3. 9 May 2014 — Appellants, Plaintiffs below, filed Plaintiffs' Objections to
Defendants' proposed order sustaining special exceptions. (The court was
verbally informed at the hearing on April 23, 2014 and in writing. (CR v.1 p.
37)
4. 24 June 2014 — Through Plaintiffs' Response to Defendants' Motion for
Contempt, Appellants informed court again of no notice.
5. 9 September 2014 — Through Plaintiffs' objections, inter alia, Defendants'
special exceptions, Appellants informed the court of no notice.
6. 20 November, 2014 — Through Plaintiffs' Response to Defendants' Motion
to Dismiss action with prejudice for failure to comply with court order and
termination of Receivership.
Again, Appellants informed the court and the opposing party of no notification.
It is ironic to know that the court had become aware of the lack of notice of
the special exceptions. Since Appellants' motion filed on the 9th of May, 2014 (CR
v. 1. p. 37 and 38), Appellants had asked for a new hearing on the special
exceptions once they had been received by Appellants, the court denied that
request on the 15th of December, 2014. (CR. v. I p. 138)
He wanted to participate as guaranteed by the Constitution of Texas and of
United States.
SUMMARY OF ARGUMENT
The basis of this appeal is founded on two (2) of the cardinal principles of
the rights granted and guaranteed by the state's and the federal constitutions. First
3
and foremost, is the notice requirements of due process. This would include the
right one has to seek redress through the court system, this means a meaningful
hearing. The other is a jurisdictional issue.
On a matter of plea in intervention, the court cannot dismiss without a
hearing. It may only strike the intervention. Also, the Court cannot ignore a
statute which allows him to seek a court to declare his rights pursuant to a deed.
(Chapter 37 of the Texas Civil Practice and Remedies Code)
Therefore, the only viable conclusion is that the trial court erred and the case
must be remanded or to merely vacate the order.
On matters of special exceptions and dismissal for such, the recipients of a
negative ruling, Appellants herein, have a choice of either amending or appealing
the decision. Mowbray v. Avery, 765 S.W.3d 663, 677 (Tex. Civ. App.-Corpus
Christi 2002)(pet. den.). Hence, this appeal.
ISSUE NO. ONE
Did the trial court err by granting special exceptions that gave no opportunity for
Appellant to present his case pursuant to the Uniform Declaratory Judgments Act
in that said statute allows matters of deeds (§37.004) (Texas Civil Practice and
Remedies Code) and thereby the court abused its discretion by ignoring said statute
and abused its discretion by dismissing Appellants' case in that Appellants did not
amend due his cause of action may only be resolved through a declaratory
judgment action and the court refused to hold a hearing once the Appellants
obtained a copy of the special exceptions?
FACTS PERTAINING TO THIS ISSUE
Appellants are attempting to organize their property, both real and personal,
in that Appellant Antonio Arriaga desires to leave a well-organized estate in that he
4
is already up in age. (77 years) He then is gathering everything he and his wife of
over thirty (30) years, have accumulated. His son turned out to be a "prodigal" son
and desires his share of his inheritance.
For convenience sake, Appellants had opted to place all the properties under
the children's names and they in turn, when the time would come, they would look
after their aging father and their step-mother and his issue would be the owners
without any probate requirements.
Unfortunately, Appellee "prodigal" son, after more than twenty-eight (28)
years, decided that he wants to obtain his inheritance and wants it now. He has cut
off Appellants and the sisters, Appellees.
One needs to review the facts in the petition (RR v. I p.'7) and the First
Supplement Original Petition for Declaratory Judgment (CR. v. 1 p. 18) in that
Appellees had received these two (2) documents before their answer was filed. The
Plaintiff has a choice, to either amend or stand by the pleading. (Mowbray v.
Avery, 76 S.W.3d 663 (Tex. Civ. App.-Corpus Christi 2002) (pet. den.)
What Appellees are attempting to do is to say that Appellants state no cause
of action. This is improper. (Spillman v. Spillman, 757 S.W.2d 166 (Tex. Civ.
App.-San Antonio 1988 writ dism'd) The Appellees have attempted to use a
general demurrer and that is not allowed by the rules. (Rule 90 of the Texas Rules
of Civil Procedure.) The Appellees desire an explanation as to why a declaratory
judgment act lawsuit. (CR. v. 1 p. 25)
ARGUMENT AND AUTHORITIES
One may wonder if deeds and the transference of real property may be
accomplished through a combination of oral and written conveyances. One must
5
keep in mind that this is a family affair.
Appellees rely heavily on Martin v. Amerman, 133 S.W.3d 262 (Tex.
2004). Said case is for solving problems of boundary disputes. The case at bar is a
family's future, how the property is to be divided and they need judicial
intervention in order to rectify the incorrectly written documents: not a boundary
dispute, as said case speaks about.
However, there are many examples which remove the transaction from the
Statute of Frauds. (Chapter 26, Texas Business and Commerce Code)
Appellant Antonio Arriaga, the father, administered the properties and
distributed the profits according to how he saw just, i.e, total dominion and control.
The important item of the procedure to determine the outcome of the case is
through a trial by jury. The court in Ward v. Ladner, 322 S.W.3d 692 (Tex. Civ.
App.--Tyler 2010) (no writ hist.) stated: "Whether an oral contract existed is a
question of fact for the jury. American Transfer & Storage Co. v. Reichley, 543
S.W.2d 162,164 (Tex. Civ. App.-Amarillo 1976, writ ref d) Because price is an
essential element of a real estate contract, Ladner was required to secure a finding
on the contract price to be entitled to specific performance." In the case at bar, it is
the reverse of what would be an oral transference. It is a case of a father placing
his life-long obtained properties in his children's names. And he is reserving
certain rights which he now trying to prove basically by not delivering the property
and giving up the dominion and control.
The case in Flores v. Flores, 225 S.W.3d 651 (Tex. Civ. App.-El Paso
2006)(writ den.) the court stated, "Generally, the statute of frauds prohibits
enforcement of an oral conveyance of real property. TEX. BUS. & COM CODE
ANN. 26.01(a), (b) (4) (Vernon Supp. 2006) To relieve a parol gift of real estate
6
from the statute of frauds, one must show three elements; (1) a gift in praesenti that
is , a present gift; (2) possession under the gift by the donee with the donor's
consent; and (3) permanent and valuable improvements, the existence of such facts
as would make it a fraud upon the donee not to enforce the gift. Thompson v.
Dart, 746 S. W. 2d 821,825 (Tex. Civ. App.--San Antonio 1988, no writ); Dawson
v. Tumlinson, 150 Tex. 451, 242, S. W. 2d 191,192-193 (Tex. 1951).
The request for relief from Appellants was that the court would see the gift deed to
the issue yet the lack of two elements; the delivery and the acceptance. This same
court stated "To be a gift in praesenti, the donor must, at the time he makes it,
intend an immediate divestiture of the rights of ownership out of himself and a
consequent immediate vesting of such rights in the donee. Thompson, 746 S.W.2d
at 825. Three elements are necessary to establish the existence of a gift: (1) intent
to make a gift; (2) delivery of the property; and (3) acceptance of the property. Id.
Further, the owner must release all dominion and control over the property. Id. "
What elements are obviously missing? They are (1) the delivery of the
property in that Appellants kept the properties and (2) the acceptance of the
property in that it never legally occurred.
There are many exceptions to the Statute of Frauds. In the case of Mangum
v. Turner, 255 S.W.3d 223 (Tex. Civ. App.-Waco 2008)(pet. den.) the court
stated, "Nor is the statute of frauds applicable because a real estate transaction is merely
incidentally involved. Bridewell v. Pritchett, 562 S.W.2d 956, 958 (Tex.Civ.App.-Fort
Worth 1978, writ ref d n.r.e.) (citing Garcia v. Karam, 154 Tex. 240, 276 S.W2d 255
(1955)). Because we find the statute of frauds inapplicable to the oral settlement
agreement, we overrule Mangum's first and fifth issues."
And, what about between spouses. This is also an exception to the rule. The
7
husband may run his administration of business as he sees fit. The Court in
Harrison v. Harrison, 321 S.W.3d 899, (Tex. Civ. App.-Houston [14th Dist.]
2010)( no writ hist.) pointed out that the trial court's findings that husband
conveyed one-half of a certain piece of real property to wife did not violate the
statute of frauds, even thought there was no written document conveying the
property from husband to wife.
There is no greater evidence that one would need to share that Appellant
father had no intent of delivering the property to his issue in that he had not given
up his administration for over 25 years and they had not seen a "dime out of these
properties" (RR. v. 2 p.10. L 22)
Now that the Statute of Frauds exceptions have been explained, the issue is
what law to apply. There are two (2) statutes which mention deeds. One is the
Texas Property Code, Chapter 22, and the other the Texas Civil Practice and
Remedies Code, Chapter 37, which mentions the declaration of rights on a
property where there is a deed involved. No law states it is the exclusive method.
The issue here is whether this fact scenario should be presented through the
utilization of the Trespass to Try Title law or through the Declaratory Judgments
Act. The following are the statutes:
CPRC §37.004. SUBJECT MATTER OF RELIEF
"(a) A person interested under a deed, will, written contract, or other
writings constituting a contract of whose rights, statues, or other real relations are
affected by a statute, municipal ordinance, contract, or franchise may have
determined any question of construction or validity arising under the instrument,
statute, ordinance, contract, or franchise and obtain a declaration or rights, status,
or other legal relations thereunder.
8
(b) A contract may be construed either before or after there has been a
breach."
Property Code §22.001. Trespass to Try Title.
" (a) A trespass to try title action is the method of determining title to lands,
tenements, or other real property.
(b) The action of ejectment is not available in this state."
The standard for applying the laws have been dictated by the Texas Supreme
Court in the case of Liberty Mutual Insurance Company v. Adcock, 412 S.W.3d
492 (Tex. 2013) The Court in its dicta pinpointed certain key points for the courts
to follow.
"It said that a fundamental constraint on the courts' rule in statutory
interpretation is that the Legislature enacts the laws of the state and the courts must
find their intent in that language and not elsewhere."
The point to remember is that what the legislature left out is just as important as
to what is put in it. The court exhorted that when the Legislature expresses its
intent regarding a subject in one setting, but remains silent on the subject in
another, the court will generally abide by the rule that such silence is intentional.
One may note that the Property Code, Chapter 22, states "the method" but not
the "exclusive method" nor does it uses the terms "must". The problem is that
there is no clear-cut explanation for this dilemma.
The Court in I-I0 Colony, Inc. v. Chad Kuan Lee, 393 S.W.3d 467 (Tex.
Civ. App.-Houston [14th Dist.] 2012)(pet. den.) stated, "The line segregating
claims impacting title to property that can be brought as declaratory judgment
9
actions from those claims impacting title that must be brought as trespass-to-try-
title actions is not a clear one under current Texas law. The uncertainty originates
with two legislative directives that appear to overlap to some degree."
Another court has ruled that when a suit does not involve the construction or
validity of deeds or other documents of title, the suit is not one for declaratory
judgment. BP America Production Co. v. Marshall (App. 4 Dist. 2008) 2008 WL
2828655, withdrawn and superseded on rehearing 288 S.W.3d 430, rehearing
overruled, review granted, reversed 342 S.W.3d 59 (Tex.) petition for rehearing
filed, rehearing denied.
In the case at bar, one may see the Texas Family Code being involved; the
Texas Estates Code as to who is to be the heirs, the possibility of adverse possession;
(Chapter 16 of Civil Practice and Remedies Code.) however, the ones which paid for
the properties were the Appellants.
To recover with the Trespass to Try Title law, the court in Meekins v.
Wisnoski, 404 S.W.3d 690 (Tex. Civ. App.-Houston [14th Dist.] 2013)(no writ
hist.) stated the following: "To recover, a claimant must establish a prima facie
right of title by proving one of the following: (1) a regular chain of conveyances
from the sovereign; (2) a superior title out of a common source; (3) title by limita-
tions; or (4) prior possession, which has not been abandoned. Kennedy Con., Inc. v.
Forman, 316 S.W.3d 129, 135 (Tex. Civ. App.-Houston [14th Dist.] 2010, no
pet.)." None of these elements are viable nor applicable to the case at bar.
First of all, all parties necessary must be brought into the controversy. This
can only be done with a declaratory judgment. Crawford v. XTO Energy, Inc. 455
S.W.3d 245 (Tex. Civ. App.-Amarillo 2015) (pet. pending) The Court in Devon
10
Energy Production Co. v. RCS Res. 450 S.W.3d 203 (Tex. Civ. App.-Houston
[14th Dist.] 2014) (pet. pending) stated, "The Uniform Declaratory Judgments Act
(UDJA) allows a person interested under a written contract to have determined any
question of construction or validity arising under the contract and to "obtain a
declaration of rights, status, or other legal relations thereunder." Tex. Civ. Prac. &
Rem. Code § 37.004(a). But the Act does not create or enlarge a trial court's subject
matter jurisdiction; it is "merely a procedural device for deciding cases already
within a court's jurisdiction." Texas Association of Business v. Texas Air Control
Board, 852 S.W.2d at 444 (Tex. 1993) Thus, a declaratory judgment is appropriate
only if a justiciable controversy exists as to the rights and status of the parties and
the declaration will resolve the controversy. Bonham State Bank v. Beadle, 907
S.W.2d 465, 467 (Tex.1995); Tex. Civ. Prac. & Rem. Code §37.008 .
Title to land is exclusive to the district court which is a court of general jurisdiction.
The Declaratory Judgments Act is the only procedure which would resolve the problem
between the parties. However, what if there is a mistake as to the labeling of a
procedure as the correct one, but it is not the correct one, the substantive rights prevail.
Again, the court in I-IQ Colony, Inc. v. Chao Kuan Lee. 393 S.W.3d 467 (Tex. Civ.
App. —Houston [14th Dist.] 2012) (pet. den.) stated, "Texas courts consider the
substance and not the form of the pleadings to determine whether an action is
properly considered as a trespass or declaratory judgment action. Longoria v.
Lasater, 292 S.W.3d 156, 165 (Tex. Civ. App.-San Antonio 2009, pet. denied);
Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex. Civ. App.-Eastland 2003,
pet. denied); Bell v. State Dept. of Highways & Public Transp., 945 S.W.2d
292, 294 (Tex. Civ. App.-Houston [1st Dist.] 1997, writ denied), abrogated on
other grounds by Harris County v. Sykes, 136 S.W.3d 635 (Tex.2004); Ken-
nedy Con., Inc. v. Forman, 316 S.W.3d 129, (Tex. Civ. App.- Houston [14th
11
Dist.] no pet.) "Any suit involving a dispute over the title to land is an action
in trespass to try title, whatever its form and regardless of whether legal or
equitable relief is sought." Thus, the fact that Lee had nonsuited his trespass-to-
try-title action does not mean that he waived his claim to ownership of the
property where he sought essentially the same relief in his declaratory
judgment action. We simply interpret the declaratory judgment request as a
trespass-to-try-title action. Longoria, 292 S.W.3d at 165; Hawk, 107 S.W.3d
at 84; Bell, 945 S.W.2d at 294. Moreover, the mere fact that the trial court
referred to its pronouncements regarding title as "declarations" does not mean
that the trial court erred. Cf. John and Marie Stella Kenedy Memorial v.
Dewhurst, 90 S.W.3d 268, 289 (Tex.2002). Finding no error where declara-
tory relief was merely incidental to issues of title." One may conclude, equity
surpasses procedure.
The bottom line is cogently stated in the case of Guttman v. Khalsa, 669
F.3d 1101 (10th Cir. 2012) in which the court stated, " To assess whether an
individual was denied procedural due process, courts must engage in a two (2)
step inquiry: (1) did the individual possess a protected interest such that the
due process protection was applicable; and, if so, then (2) was the individual
afforded an appropriate level of process." Hatfield v. Board Of County
Commissioners, 52 F.3d 858, 862 (10th Cir. 1995)
If the purpose of the courts is to do justice, this court of appeals is
requested to grant this issue and remand the case to the trial court for proper
adjudication in congruence with the order of this court or vacate the order of
dismissal.
There is no need for special exceptions. Here is the outline of the pleadings
12
original petition and supplement:
1. "Judge, we bought these properties." ( and a list followed)
2. "We gave them by "gift deed." (a sample is given) (Everyone knows the
copies are all available in the County Clerk's Records.)
3. "We were married at the time we acquired them."
4. "We have never delivered the gift."
5. "The children sold two (2) properties."
6. "We need an accounting and the money back."
7. "Judge, our prayer is we want what we lost; declare it is 50% we want to
give the children or place all in a constructive trust."
(nowhere was delivery of the res mentioned.)
Why should anyone need an explanation as to what the pleadings are about?
Therefore, this court should overturn the dismissal order and by vacate the order
or, in the alternative, remand the case for trial or reverse and render a decision.
ISSUE NO. TWO
Did the Trial Court err by dismissing a plea in intervention in that the Court does
not have the authority to dismiss a plea in intervention based on Rule 91a of the
Texas Rules of Civil Procedure and the Court abused its discretion by refusing to
grant leave to Late File Response to Motion to Dismiss?
FACTS PERTAINING TO THIS ISSUE
Appellant Inez Lara Rosales, wife to Appellant Antonio Arriaga, filed her
Plea in Intervention on September 19, 2014. (CR v. 1 p. 88) There was a motion to
Dismiss Plea in Intervention filed on October 30, 2014. (CR v. 1 p. 99) On
November 24, 2014, Appellant Rosales filed her Intervenor's Response to
Defendants' Motion to Dismiss Plea in Intervention. (CR. v. 1 p. 117) together
with the response, Appellant Rosales filed an Intervenor's Motion for Leave to
Late File Response to Motion to Dismiss Plea in Intervention, and an affidavit in
13
support of Interventor's Motion. (CR. v. 1 p. 113)
Then, without a hearing having been held, the court granted the motion to
dismiss the plea of intervention. (RR v. 6 p. 20 1. 12-14) No motion to strike was
ever filed. (Rule 60, Texas Rules of Civil Procedure) (Guaranty Federal Savings
Bank v. Horseshoe Operating Co. 793 S.W.2d 652 (Tex. 1990))
The alleged "final order" was an order of dismissal signed on December 15,
2014. (CR. V.1 p. 135)
The order denying motion for leave to late file the response and plea in
intervention, was signed also on December 15, 2014. (CR. v. 11)1)138-139).
ARGUMENT AND AUTHORITIES
Appellant Rosales was the intervenor and she invoked Rule 60 of the Texas
Rules of Civil Procedure. As spouse of Appellant Antonio Arriaga, she is entitled
to fifty (50%) percent of all property bought during the marriage. All of the
property involved in the case was purchased during Appellants' marriage. That is
basic Family Code as to community property.
According to Appellee, Antonio Arriaga, Jr., Appellants have been married
for twenty-eight (28) years. (RR v. 6 y p. 19 1. 13) According to the documents,
the properties were bought after 1990. (CR. v. 1 p. 07) Appellants were married in
1988. (RR v. 6 p. 15 1. 20-22) Therefore, to begin with, if the court had had a
doubt, the court should have held an evidentiary hearing. But, it did not.
By the Appellee's own statements, Appellant Rosales had standing to be a
party by being Appellant's Antonio AiTiaga's wife at the time of the purchase of
the properties. (RR. v 6 p 19 1. 10-16). The motion to dismiss the intervention was
set; however, not for her defense. It would be her burden to show she has standing
to bring her Plea in Intervention. However, she was dismissed together with the
14
case in chief with no opportunity to show standing.
Rule 60 of the Texas Rules of Civil Procedure simply states that the court
should have "sufficient cause" to strike, not to dismiss. "To dismiss" is for the
adjudication on the merits. To strike is so that Intervernor may refile.
If any party in the suit opposes the intervention, that party must challenge it by
filing a motion to strike the petition in intervention. TRCP 60; In re Union Carbide
Corp., 273 S.W.3d 152, 154-55 (Tex. 2008); Guaranty Federal Savings Bank v.
Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990). A court cannot strike
an intervention on its own initiative. Guaranty Fee., 793 S.W.2d at 657; Flores v.
Melo-Palacios, 921 S.W.2d 399, 404 (Tex. Civ. App.—Corpus Christi 1996, writ
denied). Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 586-87 (Tex. Civ. App.—San
Antonio 1998, pet. denied) (motions such as motions to abate or sever are not
substitutes for motion to strike). What the motion to strike should allege is different
what a Rule 91a must allege in their motion. Therefore, Rule 91a of the Texas Rules
of Civil Procedure should not be a substitute for a motion to strike. A motion to
strike should allege the following:
i. The intervenor does not have a justiciable interest in the suit—that is, the
intervenor (1) could not have brought all or part of the same suit in its own name
or (2) would not have been able to defeat all or part of the recovery if the suit had
been filed against it. Guaranty Fed., 793 S.W.2d at 657; Law Offices of Windle
Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. Civ. App.—Fort Worth
2003, no pet.).
2. The intervention will complicate the case by an excessive multiplication
of the issues. Guaranty Fed., 793 S.W.2d at 657; Ghiasinejad, 109 S.W.3d at 70.
3. The intervention is not essential to protect the intervenor's interest.
15
Guaranty Fed., 793 S.W.2d at 657; Ghiasinejad, 109 S.W.3d at 70.
She had filed several days before the hearing yet the court did not allow
leave to file the response. Some courts even take evidence. This court denied
Intervenor the right to response.
Appellant knows she is a lawful and wedded spouse; therefore, she owns
one-half. She should have a say-so as owner.
The Court does not dictate what may be filed. It only rules on what is filed.
The Court should not sua sponte order a party to bring to the court copies of
documents. (RR. v. 2 p. 16 1. 20-25)
The Intervenor should be given the opportunity to present her position, not
as a defense of Appellee's motion to dismiss. This is especially true when
Appellees' Motion to Dismiss (Rule 91a) has no facts stating its basis.
At the hearing, the burden is on the intervenor to show it has a justiciable
interest in the lawsuit. Intermarque Automotive Products v. Feldman, 21 S.W.3d 544,
549 (Tex. Civ. App.—Texarkana 2000, no pet.). The intervenor should be given the
opportunity to respond to the motion, but the issue of whether it has a justiciable interest
may be resolved by reference to the petition in intervention. Potash Corporation of
Saskatchewen, Inc. v. Mancias, 942 S.W.2d 61, 64 (Tex. Civ. App.—Corpus Christi
1997, orig. proceeding). To establish the right to intervene as a plaintiff, the intervenor
must show that it could have brought all or part of the same action in its own name; to
establish the right to intervene as a defendant, the intervenor must show it would be
able to defeat all or part of the suit if the suit had been brought against it. Guaranty
Fed Say. Bank v. Horseshoe Oper. Co., 793 S.W.2d 652, 657 (Tex.1990); Feldman,
21 S.W.3d at 549.
16
As far as the order is concerned, the trial court has broad discretion to rule on
the motion to strike the petition in intervention. Guaranty Fed. Say. Bank v. Horseshoe
Oper. Co., 793 S.W.2d 652, 657 (Tex.1990). The trial court may strike a petition in
intervention if (1) the intervenor does not meet the test for intervention (2) the
intervention will complicate the case by an excessive multiplication of the issues, or (3)
the intervention is not essential to protect the intervenor's interest. Guaranty Fa., 793
S.W.2d at 657; Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 71
(Tex. Civ. App.—Fort Worth 2003, no pet.) (Intervention was struck because it would
have injected new issues into already complicated case). To determine whether an
intervention is appropriate, the trial court can consider the allegations of fact in both the
plea in intervention and the motion to strike. Intermarque Auto. Prods. v. Feldman, 21
S.W.3d 544, 548 n.7 (Tex. Civ. App.—Texarkana 2000, no pet.).
The court must rule on the motion to strike before considering other matters. In
re Union Carbide Corp., 273 S.W.3d 152, 156 (Tex.2008) Court must rule on
motion to strike before considering severance.
From what the rules state on dismissal (Rule 91a) and intervention (Rule 60),
there is no correlation between the two. They are mutually exclusive. The dismissal
order does not allow dismissal of intervention. This type of errors by the trial court
results in a quagmire that it is impossible to determine how to present the problem to
the court of appeals that is normal in that an order granting or denying permission to
intervene is a nonappealable interlocutory order. Mueller v. Banks, 302 S.W.2d
447, 448 (Tex. Civ. App.-Eastland 1957, writ ref d); Metromedia Long Distance,
Inc. v. Hughes, 810 S.W.2d 494, 499 (Tex. Civ. App.-San Antonio 1991, writ
denied); Southwestern Bell Telephone Company v. Public Utility Commission, 615
S.W.2d 947, 952 (Tex. Civ. App.-Austin 1981) writ ref d n.r.e. 622 S.W.2d 82
17
(Tex. 1981).
In that under the present system of justice, the right to be heard is of utmost
importance, this court of appeal is being requested to vacate the order of dismissal.
The trial court erred in that there is no authority to dismiss an intervention
pursuant to Rule 91a of the Texas Rules of Civil Procedure. The trial court has a
number of options regarding a petition in intervention. It may (1) try the intervention
claim (2) sever the intervention claim (3) order a separate trial on the intervention
claim, or (4) strike the intervention for good cause. Saldana, 791, S. W. 2d at 320.
The intervenor may assert a claim if he has a legal or equitable interest in the
lawsuit. (Guaranty Federal Savings Bank v. Horseshoe Operating Co., 763 S.W.
2d 652 (Tex. 1990). The party opposing must file a motion to strike and then there
must be a hearing. (Saldana v. Saldana, 791 S.W.2d 316 (Tex. Civ. App.-Coipus
Christi 1990, no writ)
The court set up no hearing for Intervenor's plea.
Because the court did not follow the options required by law, the appeals court
should declare the dismissal order null and void.
Therefore, Appellants pray that this court vacate the dismissal order or, in the
alternative, remand the case or reverse and render that the deeds are void.
ISSUE NO. THREE
Did the Trial Court err by granting Appellees' Motion to Dismiss pursuant to Rule
91a of the Texas Rules of Civil Procedure in that Appellees did not fulfill the
mandates of the Rule in that they failed to identify each cause of action it
addressed, and the Rules requires that movant must state specifically the reasons
the cause of action has no basis in fact or in law in that it is an abuse of discretion
to allow Appellees not to follow the requirements of a rule in that the court lacks
jurisdiction for it not to follow established procedures for pleas in intervention and/
18
or for Rule 91a of the Texas Rules of Civil Procedure?
FACTS PERTAINING TO THE ISSUE
Appellees brought their motion pursuant to Rule 91a of the Texas Rules of
Civil Procedure in their Motion to Dismiss Plea in Intervention. (CR v. I p. 99)
There was never a hearing set for this aspect of the motion.
The only mention of this matter was in the hearing held on the 26th of
November, 2014. (RR. v. 6 p. 20 1. 10-14) The order signed is the Order of
Dismissal in which the Rule 91a motion is granted. (CR. v.1 p. 135)
There is nothing in Appellants' pleading that is not totally believable by
every reasonable person as required by Rule 91a.
ARGUMENTS AND AUTHORITIES
There are reasons why a motion for leave to file late should be granted if the
reasons were not intentional or a result of a conscious interference, both the result
of an accident or mistake. There is usually no delay that would be harmful.
Carpenter v. Cimarron Hydrocarbons Corporation, 98 S.W.3d 682 (Tex. 2002).
The Rule 91a is actually "mini-summary judgment motion." The trial court erred in
denying Appellants' Motion for Leave to File Late response. (CR. v. 1 p. 113)(CR.
v. 1 p. 139)
The focus of this point of error is Rule 91a of the Texas Rules of Civil
Procedure; therefore, one should inquire as to the nature of a rule. In 1941, the
Supreme Court adopted 1. the Texas Rules of Civil Procedure, Government Code
§22.004; and 2. The Texas Rules of Civil Procedure have the same force and effect
as statutes. Missouri Pac. R.R. v. Cross, 501 S.W.2d 868, 872 (Tex. 1973).
(Government Code §22.004(c)); In re M. N. 262 S.W.3d 799, 802 (Tex. 2008).
19
Texas courts are bound to apply and interpret statutes and our constitution by
strict compliance and strict, literal interpretation. This is especially so when the
words are plain such as those set forth in Vernon's Ann. St. Const. art. 5, §7 and
Tex. Government Code, §24.030(a). The court in Porras v. Jefferson, 409 S.W.3d
804 (Tex. Civ. App.—Houston [14th Dist.] 2013)( no writ hist.) stated, "trial courts
do not, in the absence of some extraordinary reason to, depart from those
procedures, have the inherent authority to create their own ad hoc procedures." In
re Does 1-10, 242 S.W.3d at 818.
This court in Liberty Mutual Insurance Co. v. Adcock, 412 S.W.3d 492
(Tex. 2013) held that
"Enforcing the law as written is a court's safest refuge in matters of statutory
construction, and we should always refrain from rewriting text that lawmakers chose
. . . "Energy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). We
review issues of statutory construction de novo, and our primary objective in
construing a statute is to ascertain and give effect to the Legislature's intent.
Molinst v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). The plain meaning of the
text, given the context of the statute as a whole. . ."
Trial courts must adhere to the mandates of the rules. Thus, in the case at bar,
all motions, proceedings, arguments, all other matters must be heard. Each person
should be given the opportunity by way of a hearing to be heard.
Appellees claimed they had filed a motion. (RR v. 6 p. 20 1.12) They
mentioned Rule 91a in their motion to dismiss plea in intervention, but there was no
motion. (CR. v.1 p. 99)
Rule 91a of the Texas Rules of Civil Procedure has some requirements that
"must" be met. Basically, it must identify each cause of action to which it is
20
addressed and "must state" specifically the reasons the cause of action has no basis
in laws, no basis in fact, or both. A cursory viewing of Appellees' motion shows no
such language.
Actually, no response is required only if there is a response, it must be filed
no later than seven (7) days before the date of hearing, according to the strict reading
of the rule.
Therefore as a matter of law, the order dismissing pursuant to Rule 91a of the
Texas Rules of Civil Procedure cannot be upheld as a matter of law.
Therefore, Appellants pray that this court vacate the trial court's order and
dismiss the case. In the alternative, Appellants pray that the court reverses the trial
court's judgment in toto and declare the judgment the trial court should have
rendered, i.e., that Intervenor may intervene.
ISSUE NO FOUR
Did the Trial Court err by an abuse of discretion in that the order signed on
December 15, 2014 is not a final order due to the lack of finality in that not all
relief requested was not addressed, it was a dismissal order however, it gave
affirmative relief which causes reversible error and was not final and the court
granted Appellees' relief not requested by the pleadings and then without any
presentation of evidence, the court gave validity to ownership rights to one which
only had "bare legal" title to a property in which another individual, the Appellant,
has ownership rights? Therefore, the Court of Appeals should vacate the order of
dismissal or remand the case with instructions.
FACTS PERTAINING TO THIS ISSUE
There are four (4) instances in which, through the use of pleadings, the
Appellees asked the trial court for relief. The first one was their answer, special
exceptions, counter claim and equitable relief request. By their special exceptions,
they desired to know why the use of declaratory action and not trespass to try tittle.
(There was a gift deed and no delivery and Appellants are asking the court to declare
21
them as owners by setting up a constructive trust.)
The second one is a motion for contempt for Appellant picking up the rents.
This was filed June 16, 2014, (CR. v. 1 p. 45)
The hearing was held on the 25th of June, 2014, (RR. v. 3 p. 4 1. 25) and there
was no evidence of any wrongdoing by Appellants. It was only from information
and belief but no testimony. Then on the 20th of August, 2014, the court was
informed about repairs, (RR. 4 p. 5 1. 8) and only the months of May and April the
receiver did not collect. (RR. v. 4 p. 5 1. 24). However, the court would credit
Appellant with the repair costs. (RR. v. 4 p. 10 1. 21) And Appellant had the receipts
(RR. v. 4 p. 9 1. 8-10) He was then given an appointment with the receiver. (RR. v.
4 9 1. 23). Ironically, the court instructed Appellant that the receiver could not
collect until the court signed the order. (RR .v. 2 p. 23 1. 4) The order was signed on
May 8, 2014 (CR. p. 33)
The third time Appellees asked for anything was on a motion to dismiss
action with prejudice for failure to comply with court order and termination of
receivership. (CR. v. p. 92) From the instructions the court gave, Appellant could
collect the rent up to May 8, 2014. (RR v. 6 p. 81. 17)
The fourth and last time Appellees requested or plead relief, was on October
20, 2014 when they filed Motion To Dismiss Plea In Intervention. This was
pursuant to Rule 91a of the Texas Rules of Civil Procedure.
From the aforementioned, the order of dismissal materialized. In that
Appellees had asked for a defamation cause of action. (CR. v. 1 p. 25) and they
received from the dismissal order (CR v. I p. 136) The order that they were "free to
dispose of any of the properties identified herein without further order of this Court."
The order included the following:
22
1. Dismissal for failure to cooperate with receiver;
2. Dismissal on the merits of Plea of Intervention;
3. Pleadings stricken for not explaining why a declaratory judgment action
and not a trespass to try title; and
4. Because Appellant did not provide deeds and other instruments, although
open to the public to copy, of his deeds, divorce decree, etc.
For said reasons, the order of dismissal was granted. There are various places
in the record in which show that Appellant gave the court copies of the
aforementioned instruments, however, they were not given to counsel, only to the
court. (Marriage license: (RR. v. 2 p. 6 1. 17; p. 20 1 6)(RR v. 6 p. 23 1. 22) (divorce
decree: RR v 2 p. 22 1. 21-22)(gift deeds: RR v. 2 p. 11 1. 21; v. 2 p. 9 1. 15-12 p. 12
1. 6-8; v. 6 p. 24 L 6)
ARGUMENT AND AUTHORITIES
The court did file its findings of fact and conclusion of law. (CR sup.)
Ironically, Appellees complained that it was improper to use a declaratory
judgments action to prove ownership. However, the court declared that the
Appellees could sell. Then, one may conclude that a declaratory judgment may be
used. They never filed a trespass to try title lawsuit.
Ironically, the findings and conclusions do not include who is the owner.
Therefore, one may conclude, if the judgment favors the Appellees, it is proper; if it
favors Appellants, the pleadings should have been pursuant to a trespass to try title.
Appellees may sell.
One must start with the basics. What is a judgment? The judgment is the
official document announcing the resolution of the issues in the lawsuit. Comet
Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970). The judgment grants
the winning party the relief it earned by its victory, Jones v. Springs Ranch Co., 642
S. W. 2d 551,553 (Tex. Civ. App.—Amarillo 1982, no writ).
23
The most basic requirement of a judgment is that it must conform to the
pleadings. The judgment must conform to the pleadings. Texas Rules of Civil
Procedure 301; City of Austin v. Castillo, 25 S.W.3d 309, 314 (Tex. Civ. App.—
Austin 2000, pet denied); Soto v. Sea-Road Int'l, 942 S.W.2d 67, 75 (Tex. Civ.
App.—Corpus Christi 1997; writ denied). Even when a final judgment results from
a settlement agreement, it must strictly comply with the terms of the agreement.
Keim v. Anderson, 943 S.W.2d 938, 946 (Tex. Civ. App.-El Paso 1997, no writ).
All of the documents or records have been reviewed in this issue and it shows
that the order of dismissal does not conform to the pleadings. All of the
interlocutory orders are only to last for the case, i.e. the receivership, the injunctions,
the interpleader; therefore, this order does not qualify.
The order must be definite and certain. The judgment must be sufficiently
definite and certain to define and protect the rights of the litigants. Stewart v. USA
Custom Paint & Body Shop, 870 S.W.2d 18, 20 (Tex.1994). If a judgment is not
definite, it must provide a means of determining rights so the ministerial officers can
execute on the judgment. Olympia Marble & Granite v. Mayes, 17 S.W.3d 437. 440
(Tex. Civ. App.—Houston [1st Dist.] 2000, no pet.); Kimsey v. Kimsey, 965 S.W.2d
690, 694 (Tex. Civ. App.—El Paso 1998, pet. denied). If a judgment is not definite and
its meaning cannot be ascertained, it is not a final judgment. Hatton v. Burgess, 167
S.W.2d 260, 262-63 (Tex. Civ. App.—Beaumont 1942, writ red w.o.m.) Judgment
was void because it did not provide sufficient information to
identify land awarded to prevailing party. American Casualty. & Life Insurance.
Co. v. Boyd, 394 S.W.2d 685, 688 (Tex. Civ. App. Tyler 1965, no writ) An
unintelligible order has no legal effect.
The order alludes to the fact that in that Appellant did not give opposing
24
counsel certified copies of the deeds, the lawsuit was dismissed. If indeed the
Appellees believed the properties belonged to them, they would go and get the
deeds. They are at the county clerk's records.
One cannot tell if this is a final appealable judgment. The judgment should
state whether it is intended to be a final or partial judgment. A statement that the
plaintiff takes nothing or that the case is dismissed makes the judgment final as
long as there are no other claims by other parties. Lehmann v. Har-Con Corp., 39
S.W.3d 191, 205 (Tex.2001). But language about dismissal should not be used in a
proceeding that resolves the case on the merits (e.g., a summary judgment); it
should be used only in cases in which dismissal is appropriate. The judgment
should state:
(1) "This judgment finally disposes of all parties and all claims and is
appealable." In re Daredia, 317 S.W.3d 247, 248 (Tex.2010); Lehmann, 39
S.W.3d at 206. This is the preferred statement to include in any judgment intended
to be final. In re Daredia, 317 S.W.3d at 248; or
(2) "This judgment disposes of all parties and all claims in this cause of
action and is therefore final."
E.g. id at 248-49 the term this is an appealable judgment should be used.
A judgment is not final just because it is captioned a "final judgment,"
because the word "final" appears somewhere in the order, because it awards
costs, or because it says it is appealable. Lehmann, 39 S.W.3d at 205.
However, this judgment is labeled "Order of Dismissal."
When a court dismisses a case, the order should be drafted to dismiss the
suit and nothing else. If the order purports to make any decision on the merits, it
is reversible error. Garcia-Marroquin v. Nueces City Bail Bond Bd. I S. W. 3d
366, 379 n. 8 (Tex. Civ. App.—Corpus Christi 1999, no pet.); Alvarado v. Magic
25
Valley Elec. Co-op, Inc. 784 S.W.2d 729, 733 (Tex. Civ. App.—San Antonio
1990, writ denied). For example, the statement "plaintiff take nothing"
constitutes a decision on the merits. Garcia-Marroquin, 1 S.W.3d at 379, n. 8;
De la Garza v. Express-News Corp. 722 S.W.2d 251, 253 (Tex. Civ. App.—
San Antonio 1996, no writ)
In the case at bar, the court granted affirmative relief, no one had asked for
it in the pleadings; however, the court granted ownership rights to Appellees.
(CR. v. 1 p. 136)
Wherefore, Appellants request that this Court grant this issue and vacate
the order of dismissal or in the alternative, reverse and render, order that the law
of gifts must be applied.
ISSUE NO. FIVE
Did the Trial Court abuse its discretion by not obligating Appellees to notify the
Appellants of whatever motion was to be heard in that the Trial Court violated
Appellants' personal and property rights by not informing Appellants what each
hearing was to be about even after Appellants expressed their objections in writing
and during the hearings?
FACTS PERTAINING TO THIS ISSUE
Appellant received orders for several hearings; however, he was not notified
what the hearings were for. At the hearing, he informed the Court that he had not
received any documentation as to what was being spoken about. (RR. V. 2 p. 19 1.
24-p.20 1. 2) The Court, of course, misunderstood and the court felt he was referring
to what he had placed in the record, i.e., the decree, marriage license, the deed.
In that the court seemed to not understand, he filed on May 29, 2014, his
objections to Defendant's proposed order on sustaining Defendant's exceptions (CR.
v. 1p. 37)
26
On June 27, 2014, Appellant filed his Response to Defendants' Motion for
Contempt or in the Alternative, Motion for Disgorgement of Rents and Plaintiff's
Motion to Set Aside Order Granting Injunction and Appointment of Receiver. (CR v.
1 p. 63). Again, he informed the court that the Appellees had not given him any copies
of what was being presented. (see statement of facts for list.)
By September 9, 2014, Appellant again informed the court that he is not being
informed as to what the hearing is to be about. (CR. v. 1 p. 78) One does not know
what has to be done in order to receive notice of what is to be discussed at the
hearings.
The response from the Court was to grant a date for final trial. Although the
Rules of Judicial Administration (Rule 6) states that the case should be given 18
months for jury trials. Measured from appearance date, the trial was set for December
11, 2014, that is less than nine (9) months.
One may readily see why this appeal was filed.
ARGUMENT AND AUTHORITIES
The problem is that Appellant does not speak English. (RR. V. 2 p. 6 1. 8-9).
That portion belonged to his lawful and wedded wife. (RR. v. 2 p. 4 1. 10-24, p. 5, 6
and 7 through 1. 14). The only real evidence was when Appellant Arriaga clarified
what he had done as to the rents. (RR. v. 6 p. 17 1. 23)
Other than that, there was never again taken meaningful testimony. There was
no rebuttal: that means that what was said, is the evidence. Appellee Arriaga, Jr. took
an oath (RR. v. 6 p. 19 1. 6); however, his testimony was incomprehensible. There
was no right of cross examination given. And those facts were applied to the plea in
intervention (RR. v. 6 p. 20 1. 4-13). The court in National Loan Investors, L. P. v.
Robinson, 98 S.W.3d 781 (Tex. Civ. App.—Amarillo, 2003) (pet. den.) stated,
27
"Evidence is not conclusive unless it was admitted by the court and the opposing
party failed to rebut it. Transport Insurance Company v. Faircloth, 898 S.W.2d
269, 275 (Tex. 1995)." There is no place in all of the record which rebuts
Appellant's testimony.
The Constitution of the United States, Amendments IV, V, and XIV guarantees
that no property shall be taken without due course of law. The Constitution of the
State of Texas also gives this guarantee in Article I, Section 13 and gives the right to
go to court pursuant to the "open-courts" doctrine and to obtain due process.
Therefore, the individual citizen should feel safe and secure in that one may
exist without fear that the courts will close their doors on said individual and someone
would just automatically become the new owner of one's property.
The court in In re Knott, 118 S. W 3d 899 (Tex. Civ. App.-Texarkana 2003, no
writ hist.) stated "The protection of one's right own property is said to be one of the
most important purposes of government. That right has been described as
fundamental, natural, inherent, inalienable, not derived for the legislature and as
preexisting even constitutions." Eggemeyer v. Eggemeyer, 554 S.W.2d 137,140
(Tex. 1977) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67
L.Ed.322, 28 A.L.R. 1321 (1922); 16 AM JUR 2D Constitutional Law §362 (1964).
Our constitution forbids the deprivation of a citizen's life or property except by due
course of law. TEX. CONST. art. I §16 and §19 . This constitutional protection
requires not only procedural but also substantive due course of law. Eggemeyer,
554 S.W.2d at 140 "
The court in In the Interest of C.W., S.V.R., and L.L.C., 65 S.W.3d 353
(Tex. Civ. App. Beaumont 2001)(no writ hist.) stated that "..our system of justice
28
comprehends due process to include notice and an opportunity to be heard." In the
case of Pandozy v. Shamis 254 S.W.3d 596 (Tex. Civ. App.-Texarkana 2008)
mand. den. the court recognized that "in a summary judgment hearing, the trial
court's decision is based on written pleadings and written evidence rather than live
testimony. TEX. R. Civ. P. 166a(c). That can mean one cannot cross-examine. If
Appellees would have cross-examined, it would be axiomatic to conclude that there
would be a fact issue. Then, if there is a fact issue, there must be a trial because one
has a right to a jury. That is why affidavits should be with personal knowledge;
however, no affidavits were offered. University of Texas M.D. Anderson Cancer
Center v. King, 417 S.W.3d 1 (Tex. Civ. App.-Houston [14th Dist.] 2013) (no writ
hist.)
Texas courts are bound to apply and interpret statutes and our constitution by
strict compliance and strict, literal interpretation. This is especially so when the
words are plain such as those set forth in Vernon's Aim. St. Const. art. 5, §7 and
Tex. Gov't Code, §24.030(a). The court in Porras v. Jefferson, 409 S.W.3d 804
(Tex. Civ. App.—Houston [14th Dist.] 2013)( no writ hist.) stated "trial courts do
not, in the absence of some extraordinary reason to depart from those procedures,
have the inherent authority to create their own ad hoc procedures." In re Does 1-10,
242 S.W.3d 805, 818 (Tex. Civ. App.-Texarkana 2007)(no writ hist.)
This may be summed up in what the court in In re Brilliant, 86 S.W.3d 680
(Tex. Civ. App.—El Paso, 2002) (no writ hist.) stated, "A trial court's failure to
comply with the rules of notice in a contested case deprives a party of the
constitutional . . . to voice her objections in an appropriate manner, and results in a
violation of fundamental due process. Platt v. Platt, 991 S.W.2d 481, 483 (Tex.
Civ. App.—Tyler 1999, no pet.)"
29
Applying these laws to the case at bar, if an individual is not notified before a
hearing, that individual's due process rights are being violated; therefore, any order
emanating from that scenario should be declared null and void. Appellants pray for
such and asks this court to vacate the order of dismissal.
ISSUE NO. SIX
Did the court err by not allowing evidence to be received and to be developed
which would resolve the issue of law as to the law of gifts, deeds, and interspousal
transfers of property and thereby the court failed to apply the law on gifts and as a
matter of law the gift has failed and thereby the court of appeals should vacate
order of dismissal in that it is an abuse of discretion not to apply the law?
FACTS PERTAINING TO THIS ISSUE
From discussions, one may conclude that Appellant never gave Appellees not
even a "dime out of these properties." (RR. v. 2 p. 10 1. 22) That can only mean one
thing; no delivery. And no delivery means no gift. As Appellant Arriaga stated, "The
part that I was single. They lied to me because I don't read English." (RR. v. 2 p. 6 1.
5-9) Appellant intended to deliver, but he never did. (RR. v. 2 p. 10 1. 13)
One must keep in mind that this was a gift.
ARGUMENT AND AUTHORITIES
There are special requirements on gifts. Appellant started with signing a gift
deed. (RR v. 2 p. 8 1. 13) (CR v.1 p. 07 et seq.) And he stated that he intended to give
the property to Appellees and the court understood. (RR. v. 2 p. 5 1. 13) Therefore,
the starting place should be with, what is a gift.
Black's Law Dictionary 5th Edition, 1979, defined gift as follows:
"Gift. A voluntary transfer of property to another made gratuitously and without
consideration. Essential requisites of "gift" are capacity of donor, intention of donor
to make a gift, completed delivery to or for donee, and acceptance of gift by donee."
Without these elements being fulfilled, there is no gift. There was no
30
consideration and it was gratuitously given. The donor, Appellant is a stable
individual (does not know English, but stable, hardworking and thrifty); therefore, has
capacity of being the donor. He had the intention to give as may be seen by his
statements. The next element is delivery.
Here, Appellant had not even given a "dime" out of the property. (RR. v. 2 p.
10 1. 23) With no delivery, there is no gift. Therefore, the gift idea is not there for the
present. The last element is acceptance. In the case at bar, Appellees took and sold;
that is theft, not acceptance.
It is incumbent to review the nuances of gifts within a family.
Property acquired by either spouse by a gift is separate property. Tex. Const.
art. 16 §15; Tex. Fam. Code §3.001(2). A gift is a voluntary transfer of property to
another made gratuitously and without consideration. Wells v. Wells, 251 S.W.3d
834, 839 (Tex. Civ. App.—Eastland 2008, no pet.(; Magness v. Magness, 241 S.W.
3d 910, 912 (Tex. Civ. App.-Dallas 2007, pet denied); Hilley v. Hilley, 342 S.W.2d
565, 569 (Tex. 1961). Three elements are required to establish the existence of a
gift; (1) intent to make a gift, (2) delivery of the property; and (3) acceptance of the
property. In re Marriage of Moncey, 404 S.W.3d 701,710 (Tex. Civ. App.-
Texarkana 2013, no pet.); Wells, 251 S.W.3d at 839, Magness, 241 S.W. 3d at
912. The intent must exist at the time of the transfer, not at a later time. (e.g. at the
time of divorce). In re Marriage of Moncey, 404 S.W.3d at 710; Wells, 251 S.W.
3d at 839. A party can establish intent to make a gift by presenting evidence that the
gift-giver intended to make an immediate and unconditional divestiture of her
ownership interest in the property and to unconditionally vest those interest in the
recipient of the gift. Reaves v. Reaves, No. 11-11-00026-C. (Tex. Civ. App. —
Eastland 2012) (memo op. 8-31-12) (see App. V) a gift to both spouses, such as a
31
wedding gift, jointly gives each spouse an undivided one-half separate-property
interest in the gift. Roost!' v. Roosth, 889 S. W. 2d 445,457 (Tex. Civ. App.-
Houston [14th Dist.] 1994, writ denied) Jones v. Jones, 804 S.W.2d 623, 627 (Tex.
Civ. App. Texarkana 1991, no writ)
One can see why an individual with limited knowledge of the English
language could not comprehend what he was signing. Appellant never intended for
the real property to be his separate property.
One can understand that real property acquired by purchase can be either
separate or community property, depending on the time and circumstance of the
purchase. Real property gets its character at the time the purchase contract is
signed. Carter v. Carter, 736 S.W.2d 775, 779 (Tex. Civ. App.—Houston [14th
Dist.] 1987, no writ). This rule applies to all types of contract for the purchase of
real property: contracts for deeds, lease-option agreements, earnest-money contracts,
and installment land contracts. Dawson v. Dawson, 767 S.W.2d 949,951 (Tex.
Civ. App.-Beaumont 1989, no writ) Roach v. Roach, 672 S.W.2d 524, 530-31
(Tex. Civ. App—Amarillo 1984, no writ) Wierzchula v. Wierzchula, 623 S. W. 2d
730,732 (Tex. Civ. App.-Houston [1St Dist.] 1981, no writ) Riley v. Brown, 452 S.
W. 2d 548, 551 (Tex. Civ. App.—Tyler 1970, no writ).
There is a difference in property rights if the property is bought. Appellants
bought the property and not the Appellees. (RR. . 2 p. 5 1. 17-19).
Before marriage. Real property before marriage is separate property. Dawson,
767 S.W.3d at 951. This presumption can be rebutted by showing that the spouses
did not furnish the consideration for the purchase in equal shares, Id at 205-06;
Dawson v. Dawson, 767 S.W.2d 949 (Tex. Civ. App.—Beaumont 1989) (no writ
hist.) Property deeded to both spouses was still separate property of husband, who
actually purchased property before marriage.
32
However, the most important thing to consider is that just because a deed or
an instrument has been signed, it can still be changed. Equity will prevail.
Under the parol-evidence rule, the introduction of extrinsic evidence to
contradict the express recitals in the deed is prohibited, unless a party presents
evidence of fraud, mistake, or accident in the insertion of the recital. Bahr v. Kolar,
980 S.W.2d 723, 727 (Tex. Civ. App.-San Antonio 1998, no pet.)
The law is quite clear here and not what Appellees espouse that what is signed
may not be changed. (RR. v. 2 p.1. 12)
Therefore, the court erred in that procedure does not prevail over justice. In
the case at bar, Appellant presented fraud, mistake and accident therefore, the laws
are on his side to be allowed to present his grievance in front of a court of competent
jurisdiction and be afforded meaningful hearings.
Wherefore, Appellants pray that this court vacate the order of dismissal of the
trial court, in the alternative, remand the case back to the trial court with instructions
inter alia to follow the law of gifts.
CONCLUSION
One may see that any one of these issues would fulfill the requirements of Rule
44 of the Texas Rules of Appellate Procedure in that each one shows that they caused
the rendition of an in improper judgment and/or probably prevented the Appellants
from properly presenting the case to the court of appeals.
PRAYER
WHEREFORE PREMISES CONSIDERED, Appellants pray that this
Court of Appeals conclude and declare that the errors committed by the trial court,
singularly and in conjunction with each other, caused the rendition of an improper
judgment and/or prevented the Appellants from properly presenting their case to
the court and Appellants were denied their rights of due process and did not
receive relief in due course of law.
33
Furtheimore, Appellants pray that the court recognizes that Appellants have
been denied due process of law and thereby Appellants' constitutional rights, both
personal and property rights, were violated and that Appellants may proceed
pursuant to the Unifolin Declaratory Judgments Act, Chapter 37 of the Texas Civil
Practice and Remedies Code.
As a matter of law, an order of dismissal cannot grant any affirmative relief;
therefore, this is reversible error.
Therefore, this court is requested that it vacate the trial court's order of
dismissal; or reverse and render that the gift had not been delivered therefore, the
gifts fail and the owners are the Appellants. In the alternative, Appellants pray this
Appeal Court order the court below to properly resolve the case, declaring the
judgment not final and all costs be taxed to Appellees.
Appellants pray for any other relief at law or in equity that Appellants may
be justly entitled to receive.
Respectfully submitted,
Law Office of Juan Angel Guerra
1021 Fair Park
Harlingen, Texas 78550
956-428-1600
956-128-1601 Fax
juanangelguerra1983@gmail.com
By: /s/
Juan Angel Guerra
State Bar No. 08581320
Attorney for Appellant
34
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been mailed by via fax 956-423-4976 on this the 24/7'1day of June, 2015, to
Gene McCullough, P. 0. Box 2244, Harlingen, Texas 78551
Is/
Juan Angel Guerra
35
CAUSE NO 13-15-00038-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG
ANTONIO ARRIAGA AND INEZ LARA ROSALES, APPELLANTS
VS.
OBDULIA MARTINEZ ARRIAGA, ANTONIO MARTINEZ ARRIAGA, JR.,
AND REYNA LUISA MARTINEZ ARRIAGA, APPELLEES
On Appeal from the 197TH DISTRICT COURT
WILLACY COUNTY, TEXAS
Trial Court Cause No. 2014-CV-0100-A
CERTIFICATE OF COMPLIANCE
I, the undersigned, hereby certify that the total amount of words stated by the
computer program not counting those areas not to be counted, in the following:
Total 14,962
SIGNED on this the 24th day of June, 2015.
Respectfully submitted,
Law Office of Juan Angel Guerra
1021 Fair Park
Harlingen, Texas 78550
956-428-1600
956-128-1601 Fax
juanangelg-uen-a1983@gmail.com
By: Is!
Juan Angel Guerra
State Bar No. 08581320
Attorney for Appellant
36
CAUSE NO 13-15-00038-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG
ANTONIO ARRIAGA AND INEZ LARA ROSALES, APPELLANTS
VS.
OBDULIA MARTINEZ ARRIAGA, ANTONIO MARTINEZ ARRIAGA, JR.,
AND REYNA LUISA MARTINEZ ARRIAGA, APPELLEES
On Appeal from the 197TH DISTRICT COURT
WILLACY COUNTY, TEXAS
Trial Court Cause No. 2014-CV-0100-A
APPENDIX
Respectfully submitted,
Law Office of Juan Angel Guerra
1021 Fair Park
Harlingen, Texas 78550
956-428-1600
956-128-1601 Fax
Juanangelguerra1983@gmail.com
By: /s/
Juan Angel Guerra
State Bar No. 08581320
Attorney for Appellant
37
APPENDIX
I. Final Order — Appealed
IL Register of Actions
III. Findings of Facts and conclusion of Law
IV. Laws
V. Case Law: Reaves v. Reaves, No. 11-11-00026-CV
(Tex. Civ. App.-Eastland 2012) (memo op. 8-31-12)
STATE OF TEXAS }
COUNTY OF CAMERON }
I, hereby certify that all the foregoing copies of the above mentioned
documents are true and correct copies, and are all incorporated by reference as if
fully copied within the body of the brief.
SWORN, SUBSCRIBED AND ACKNOWLEDGED by Juan Angel
Guerra before me on the 0t ay of June, 2015.
OFELIA HERNANDEZ
My Commission Expires
June 25, 2018
39
APPENDIX I
CAUSE NO. 2014-CV-0100-A
ANTONIO ARRIAGA, IN THE DISTRICT COURT
Plaintiff
V. 197111 JUDICIAL DISTRICT
OBDULIA MARTINEZ ARRIAGA,
ANTONIO MARTINEZ ARRIAGA,
J.R. AND REYNA LUISA MARTINEZ
ARRIAGA,
Defendants. WILLACY COUNTY, TEXAS
ORDER OF DIMISSAL
ON NOVEMBER 26, 2014, the Motion to Dismiss for Failure to Cooperate with
Receiver, Motion to Dismiss Plea in Intervention pursuant to Rule 91a of OBDULIA
MARTINEZ ARRIAGA, ANTONIO MARTINEZ ARRIAGA, JR., and REYNA LUISA
MARTINEZ ARRIAGA, Defendants herein, was hepd before this court. Plaintiff appeared
in person. Defendants appeared in person and through their attorney, Gene McCullough.
Intervenor failed to appear.
Based upon the pleadings, records, documents filed by counsel, and the arguments of
counsel at the hearing, THE COURT FINDS AS FOLLOWS:
A. ANNETTE C. I-IINOJOSA, a licensed'attorncy, (hereinafter, called "Receiver')
was appointed as receiver to collect all rent monies and other monies paid by the occupants of
the properties identified below. That Receivership is hereby terminated. Receiver shall be
paid a fee of $1,500.00 for her services from the proceeds on deposit in the registry of this
Court. The balance of the funds on deposit in the registry of this Court shall be paid forthwith
by the Clerk to Gene McCullough, Trustee, as attorney for the Defendants.
FOILED
it. 35:et
DEC1 5 2014. 1
rajz d.*_ p,c4
istaeraimag
&
135
Properties:
Lots Numbers Thirty-one (31) and Thirty-two (32), in Block eleven (11), Townsite
of Raymondville, Willacy County, Texas, including all improvement's situated
thereon;
Lots Numbered Eight (8), Nine (9), and Ten (10), Block 31, Townsite of San
Perlita, Wiillacy County, Texas;
Lots Numbers Eleven (11), Twelve (12), Thirteen (13), Fourteen (14), and Fifteen
(15), Block Number Five (5), of the Colonia Victoria Addition, Number. One (1), to
the City of Raymondville, Willacy County, Texas;
Lots Three (3), Ten (10), Eleven (11), and Twelve (12), Block One (1), Arriaga
Subdivision, city of Raymondville County of Willacy, Texas, according to the official
map or• plat thereof;
Lots Five (5), and Twelve (12), Block Two (2), Arriaga Subdivision, City of
Raymondville, County of Willacy, Texas, according to the official map or plat thereof;
Lot Number Three (3),. Block Number Seventy-nine (79), Townsite of Raymondville,
Willacy County, Texas, according to the official map or plat thereof;
Lots Numbers Twenty-four (24), Twenty-five (25), and Twenty-six (26), Block
Number Seven (7), Colonia Hidalgo Additioi*to the City of Raymondville, according
to the official map or plat thereof;
Lots Thirty-one (31) and Thirty-two (32), Block Seven (7), Townsite of
Rayincridville, Willacy County, Texas.
B. elaintiffa pleadings are hereby stricken inasmuch as the Plaintiff failed to
amend his pleadings pursuant to Defendants' Special Exceptions urged before this Court, and
sustained pursuant to Order signed on May 8, 2014.
C. Defendants are free to dispose of any of the properties identified herein
without further Order of this Court. The Lis, Pendens filed by Plaintiff against the properties
and recorded on or about March 24, 2014 in the Willacy County Records is of no further force
and effect
D. Plaintiff shall refrain from Any further collection of any monies on the above
136
described properties;
E. Plaintiff was to to provide to Defendants' counsel certified copies of the
following: Divorce Decree and every Gift Deed to his children, along with the Deeds vesting
title to these properties. Those documents were never provided;
F. Intenrenor's claims arc dismissed pursuant to Rule 91 a.
SIGNED and ENTERED on the day of 2014.
r;I-Mittif4
xc: Gene McCullough, P. 0, fox 2244. Hvlingert. Texas 78551-2244
Antonio Arriaga, 294 West San Francisco, Raymondville, Texas 78580
Annette C.1-linojosa, 155 N. 3"/ Street, Raymondville, TX 72520
lnez Lora Rosales, 2955.32" Street, Brownsvifle, Texas 78520
133
APPENDIX II
9:48:30 AM Pagel of 3 12/9/2014
Home .C;1 Cases .z:'1 Parties 'VI Search c, Reports c" Letters K7 I Maintenance ,C; Calendar Support Logout 1
View All Events
New Case
Cause Number: File Location:
View/Edit Case 2014-CV-0100-A
Defendant/Respondent Court: Filing Date:
197th District Court 03/07/2014
Plaintiff/Petitioner
Disposition
Civil Case Type(s) Action Date Disposition Date
Other Party Type
Other Primary Party 1. Declaratory 3udgment 03/07/2014
Style:
Attorney Antonio Arriaga Vs Obdula Martinez Arriaga, Antonio
Bond Martinez Arriaga 3r and Reyna Luisa Martinez Arriaga
Cash Bond
Court Registry Enter another Event
Child Support Publish PDF document from multiple images.
Events
Court Setting View all
Select all V
Fee/Fine
Select
Installments
Payment
All Events
Rill of Cost
# Type Date Description Image Pages Vol/Page
:elirninary Court
Costs Original
1. 03/07/2014 Original Petition for Declaratory Judgment 122061.tif 9
Petition
Case Summary Report
Notice of Lis
2. 03/07/2014 Notice of Lis Pendens 122062.tif 2
Location History Pendens
3. Receipt 03/07/2014 Receipt for cc and service 122073.tif 1.
Citation Issued 03/10/2014 to Obdulia Martinez
4. Citation Issued 03/10/2014 Arriaga; Antonio Martinez Arriaga, Jr.; and 1221313.tif 6
Reyna Luisa Martinez Arriaga (so)
c SUPPLEMENTAL First Supplement Original Petition for
03/19/2014 122590.tif 5
.•
•" PtiiiION Declaratory Judgment
Notice of Lis
6. 03/19/2014 Notice of Lis Pendens (Supplement) 122592.tif 2
Pendens
Return Citation-Served 03/21/2014 on Obdulla
7 Return Martinez Arriaga, Antonio Martinez Arriaga, Jr.
03/24/2014 ' 122860.tif 6
'1 Citation-Served and Reyna Luisa Martinez Arriaga Filed
03/24/2014
'
Defendants' Original Answer, Special Exceptions,
Answer and
04/03/2014 Counterclaim and Application for Permanent 123466.tif 4
Counterclaim
Injunction w/tr Itr (w/OSH)
9. Receipt 04/03/2014 Receipt 123467.tif 1
10. Receipt 04/03/2014 Receipt for counterclaim 123514.tif 1
ii. Order Setting
04/03/2014 Order Setting Hearing 123520,tif 1
Hearing
12, Order Setting Order Setting Hearing on Defendants' Request
04/03/2014 123521.tif 1
Hearing for Injunction Hearing
—
Letter dated 04/30/2014 from Gene McCullough
13. Letter 05/01/2014 124604.tif 1
enclosing Orders
14. Other 05/01/2014 Marriage License 124605.tif 1
-
l. Notice of
05/01/2014 Notice of Resetting Hearing 124606.tlf 1
' Hearing
9:48:30 AM Page 2 of 3 12/9/2014
,
Order Sustaining Defendants' Special Exceptions
.1..c.„ Order 05/08/2014 124928 of 1
to Plaintiff's Petition
Order Granting Injunction and Appointment of
17. Order Granted 05/08/2014 124929.tif 3
Receiver
Plaintiff's Objection to Defendants' Proposed
Order on Sustaining Defendants' Special
18. Objections 05/09/2014 124931.tif 3
Exceptions and Order Granting Injunction and
Appointment of Receivership (w/Fiat)
Notice of Lis
19. 05/14/2014 Notice of Lis Pendens (Second Supplement) 125321.tif 4
Pendens
20. Fiat 05/19/2014 Fiat 125724.tif 1
Defendants' Motion for Contempt or in the
Motion for
21. 06/16/2014 Alternative Motion for Disgorgement of Rents 127064.tif 14
— Contempt
w/tr kr (w/Orders)
„ Motion For Motion For Continuance; Affidavit in Support of
06/24/2014 127393.tif 4
— Continuance Plaintiff Motion for Continuance (w/Orders)
. .
Plaintiffs Response to Defendants' Motion for
Contempt or In the Alternative Motion for
23. Response 06/24/2014 Disgorgement of Rents and Plaintiff's Motion to 127394.tif 4
Set Aside Order Granting Injunction and
Appointment of Receiver
24. Order Setting 1
07/01/2014 Order Setting Hearing 127795.tif
— Hearing
25. Receipt 08/12/2014 Receipt for copies 129337.tif 1
Receipt for rental pymts received from Atty
26. Receipt 08/15/2014 129584.tif 4
Hinojosa
Receipt for rental pymts receiced from Atty
2_7_, Receipt 08/21/2014 129946.tif 2
Hinojosa by Mr. Arriaga
Receipt for rental pymts received from Atty
28. Receipt 08/22/2014 129980.tif 2
Hinojosa
29. Receipt 08/22/2014 Receipt for bal due from prior pymt (rentals) 130011.tif 2
Plaintiffs Objections to the Court's Order Setting
Hearing on Defendants' Request for Injunction
30. Objections 09/09/2014 130696.tif 5
Hearing and Order Setting Hearing for
Defendant's Special Exceptions
31. Motion for Trial
09/10/2014 Defendant's Motion for Trial Setting (w/Order) 130717.tif 3
Setting
32 Order Setting Order Setting Hearing on Defendants' Motion for
09/15/2014 131161.tif 1
Hearing Trial Setting
33. Fiat 09/16/2014 Fiat 131240.tif 1
34. Memo 09/18/2014 Memo ....131332.tif 1
Plea in
35. 09/19/2014 Plea in Intervention 131350.tif 3
Intervention
-
Order Re
09/23/2014 Order Resetting Hearings 131523.tif 1
d=
" Setting Hearing
Motion to Dismiss Action with Prejudice for
37. Motion to
10/16/2014 Failure to Comply with Court Order and for 132740.tif 3
Dismiss
Termination of Receivership
—
38. Receipt 10/23/2014 Receipt for rental pymts given to Atty Hinojosa 133054.tif 2
39. Receipt 10/30/2014 Receipt for rental pymts 133394.tif 2
ill DMiostm
ioisnsto
10/30/2014 Motion to Dismiss Plea In Intervention 133397.tif 3
A, Order Setting
10/30/2014 Order Setting Hearing 133416.tif I
Hearing
Order Setting
AL 10/30/2014 Order Setting Hearing 3.33418.tif I.
Hearing
Plaintiff's Responses to Defendants' Motion to
Dismiss Action with Prejudice for Failure to
43. Response 11/20/2014 134328.tif 7
Comply with Court Order and for Termination of
Receivership
9:43:30 AM Page 3 of 3 12/9/2014
44. Affidavit 11/20/2014 Affidavit 134329.tif 2
Intervenor's Motion for Leave to Late File
Motion for Response to Motion to Dismiss Plea in
45. 11/24/2014 134609.tif 4
Leave Intervention; Affidavit in Support of Intervenor's
Motion
. ,
46. Response Intervenor's Response to Defendants' Motion to
11/24/2014 134610.tlf 5
Dismiss Plea in intervention
_.
47. Fiat 11/24/2014 Fiat 134655.tif 1
48. Receipt 11/26/2014 Receipt for rental agreements 134706.tif 1
DOCKET ENTRY
49. 12/03/2014 DOCKET 135009.tif
DISPOSITION
50. Letter 12/04/2014 Letter 135050,tif 1
Request for Findings of Fact and Conclusions of
Law on the Dismissal of the Lawsuit, Order
Granting Motion to Strike Intervention, Order
51. Request 12/05/2014 Stating Plaintiff's Failure to Comply with Court 135387.tif 5
Order, Order Granting Special Exceptions, Order
on Disgorgement of Rents, Order Granting
Injunction and Appointment of Receivership
User: rcruz - R. Cruz (Deputy Clerk) WOlacy District Clerks session: C381D37EBA5017BCC3F5E35C290CE518
APPENDIX III
CAUSE NO. 2014-CV-0100-A
ANTONIO ARRIAGA, § IN THE DISTRICT COURT
Plaintiff
V. § 197TH JUDICIAL DISTRIOF gLED
OBDULIA MARTINEZ ARRIAGA, MAR 1 2 2015
ANTONIO MARTINEZ ARRIAGA,
JR. AND REYNA LUISA MARTINEZ Gilbert icano„Dtst. Cleric, WiilacY Co.
By ,./) L Deputy
ARRIAGA,
Defendants. § WILLACY COUNTY, l'EXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
L Findings of Fact
1. Plaintiff (pro se) filed suit against Defendants on March 7, 2014.
2. Defendant filed special exceptions, complaining that Plaintiff's original petition sought to
use the declaratory judgment act to determine title to real property rather than pleading the
matter as a trespass to try title cause.
3. The Special Exceptions were heard on April 24, 2014. The Court Ordered Plaintiff to re-
plead his original petition by May 10 to remedy the pleading, which sought to determine
title to real property by way of declaratory judgment. If Plaintiff failed to amend the
pleadings by that time, the court would strike each defective paragraph of Plaintiff's
pleading. Plaintiff failed to amend his pleading.
4. Defendant also filed a Request for Appointment of Receiver to collect rents from tenants in
possession of the properties in question, along with a request for injunctive relief enjoining
Plaintiff from collecting further rents on the following properties:
Lots Numbers Thirty-one (31) and Thirty-two (32), in Block eleven (11), Townsite of
Raymondville, Willacy County, Texas, including all improvement's situated thereon;
Lots Numbered Eight (8), Nine (9), and Ten (10), Block 31, Townsite of San Perlita,
Wiillacy County, Texas;
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Page- 1
:irrevrevortrs.1 NNW
Lots Numbers Eleven (11), Twelve (12), Thirteen (13), Fourteen (14), and Fifteen (15),
Block Number Five (5), of the Colonia Victoria Addition, Number One (1), to the City of
Raymondville, Willacy County, Texas;
Lots Three (3), Ten (10), Eleven (11), and Twelve (12), Block One (1), Arriaga
Subdivision, city of Raymondville County of Willacy, Texas, according to the official map
or plat thereof;
Lots Five (5), and Twelve (12), Block Two (2), Arriaga Subdivision, City of
Raymondville, County of Willacy, Texas, according to the official map or plat thereof;
Lot Number Three (3), Block Number Seventy-nine (79), Townsite of Raymondville,
Willacy County, Texas, according to the official map or plat thereof;
Lots Numbers Twenty-four (24), Twenty-five (25), and Twenty-six (26), Block Number
Seven (7), Colonia Hidalgo Addition to the City of Raymondville, according to the official
map or plat thereof;
Lots Thirty-one (31) and Thirty-two (32), Block Seven (7), Townsite of Raymondville,
Willacy County, Texas.
5. The injunction Order further contained the following language:
"Plaintiff and Defendants shall refrain from any further collection of any monies on the
above described properties, subject to further orders of this Court;
Plaintiff.is to provide to Defendants' counsel certified copies of the following within fifteen
(15) days of the date of this Order: Divorce Decree and every Gift Deed to his children,
along with the Deeds vesting title to these properties."
The Court recommended to Plaintiff that he retain counsel to assist him with this matter.
The Plaintiff failed to provide such documentation as Ordered by the Court.
6. Attorney Annette Hinojosa was appointed receiver.
7. Plaintiff was ordered to deliver any rents collected from tenants in his possession to Ms.
Hinoj osa.
8. On June 12, 2014 the Defendants filed their Motion for Contempt or in the Alternative
Motion for Disgorgement of Rents. That matter was set for hearing on June 25, 2014. In
response, the Plaintiff filed a Motion for Continuance of the hearing on June 24, 2014,
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Page- 2
lr,;ffergiVr4
requesting that the Court allow him more time to hire an attorney. The Plaintiff also filed a
Response to the Motion for Contempt or in the Alternative Motion for Disgorgement of
Rents. The basis for the response was that he had never received a copy of either the special
exceptions filed by Defendants or the Application for Temporary Restraining Order and
Appointment of Receivership which gave rise to the Injunction and Receivership. The
hearing was continued at that time, but the Court admonished the Plaintiff that he must
cooperate with the Receiver. The Court advised counsel for Defendants and Receiver to
hand-deliver to Plaintiff a copy of the Order Granting Injunction and Appointment of
Receivership immediately after the hearing. He was repeatedly admonished by the Court to
cooperate with the receiver, and to refrain from interfering with the collection of rents. He
failed to do so. Plaintiff did not retain counsel, although he requested time to do so.
9. On or about September 18, 2014, Inez Lara Rosales (pro se) filed a Plea in Intervention.
10. Defendant filed a Motion to Dismiss the Plea in Intervention Pursuant to Texas Rules of
Civil Procedure 91a, on grounds that the Plea in Intervention, Inez Lara Rosales has no basis
in law or fact. The matter was set for hearing on November 26, 2014. Intervenor failed to
appear for argument, and the Motion to Dismiss was granted.
11. On or about October 15, 2014, the Defendants filed a Motion to Dismiss Action with
Prejudice for Failure to Comply with Court Order and For Termination of Receivership.
The grounds for the Motion were that the Plaintiff had "fail[ed] to comply with [the Order
Granting Injunction and Appointment of Receiver] and verbal directions from the Judge to
provide information to the Receiver."
12. A hearing was had on the Motion to Dismiss Action with Prejudice for Failure to Comply
with Court Order and For Termination of Receivership on November 26, 2014. The
Plaintiff appeared pro se. The Receiver, Annette Hinojosa, appeared in person. The
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Page- 3
•
„Aii A
Defendants appeared in person and through counsel, Gene McCullough. The Court heard
testimony from Receiver, Annette Hinojosa, that the Plaintiff had no complied with previous
Orders from this Court to provide her information and rents previously collected, and had
continued to interfere with her duties as Receiver.
13. On November 26, 2014, the Court also allowed Plaintiff to present any argument prepared
on Plaintiff's "Objections to the Court's Order Setting Hearing on Defendant's Request for
injunction Hearing for Defendants' Special Exceptions." It was denied.
II. Proposed Conclusions of Law
1. Venue in Willacy County is proper in this cause under Section 15.002(a)(1) of the Texas
Civil Practice and Remedies Code because all or a substantial part of the events giving
rise to this lawsuit occurred in this County.
2. This court has jurisdiction over the parties because Defendants are Texas residents.
The Defendants properly filed Special Exceptions pursuant to TRCP Rule 90 pointing
out a defect in Plaintiff's pleading in that Plaintiff was seeking to determine title to real
property by filing a Declaratory Judgment action pursuant to the Texas Supreme Court
ruling in Martin v. Ammerman. Martin v. Amerman, 133 S.W.3d 262, 263-64 (Tex.
2004).
3. Despite having months to cure the defect, Plaintiff refused to cure.
4. The Court granted the Injunction prayed for by Defendants pursuant to TX CPRC,
section 65.001.
5. The Court granted the Receivership prayed for by Defendants pursuant to TX CPRC,
section 64.001, et seq. to take charge of the properties in controversy and collect the
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Page- 4
riV0airalEmn PftlirCe
rents generated therefrom. The rules of equity govern such appointment pursuant so TX
CPRC, section 64.004.
6. The Defendant Repeatedly refused to comply with verbal and written Orders of the
Court, and violated the Injunction granted on April 23, and entered on May 8, 2014.
7. This Court has jurisdiction under principals of equity to enforce its Orders. CPRC,
section 65.001, et seq.
8. Plaintiff failed to amend its pleadings, leaving this Court with no cause of Action
pending before it on behalf of Plaintiff.
9. Rule 91a applies to Intervenor's claims, and the Court found that they were not
reasonably supported by law or fact.
HI. Relief Granted
This Court entered the Order of Dismissal dated December 15, 2014. The Order
dissolved the Receivership, discharged Annette Hinojosa as Receiver, Struck Plaintiff's
Pleadings for failure to amend pursuant to Order Entered May 8, 2014. The Court
dissolved the lis pendens filed by Plaintiff in the Property records of Willacy County
relating to the properties referenced in the suit, and dismissed Intervenor's claims
pursuant to Rule 91a TRCP.
SIGNEDTHIS a day of , 2015.
03/1-5/15"
ATRIJECOPYOFORIaINAL
CERTIFY,THIS, , , YO
.
GILBERT IMAM DISTRICT CLERK
Q. M. LACY COATY TE-
BY DEPUTY
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Page- 5
APPENDIX IV
AMENDMENTS
TO THE CONSTITUTION
OF. THE
UNITED STATES OF AMERICA
Amendment V.
No person shall be held to answer for a capi- • •
tal, or otherwise infamoilS crime, unless on a
presentment or indicLudent of a Grand Jury, exrPri-
in cases arising in the land or naval forces, or in
tIr.-.Mthlad, when in actual service in time of War •
or public danger; nzslha any person be sum_
for the same offence jie...tazr..a-put-injeeperciy
of life or Imo,nor shall be compelled in any crimi-
nal case to be a witness against himself, nor be
deprived of life, liberty/ or pro erty,iwithout due
process of law; nor shall private roperty be taken
for public use without just co pensation.
ARTICLE [IV]
The'right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall .not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things. to be seized.
ARTICLE 1CIV
Section 1, All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or 'enforce' any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of
the laws.
Section 2. Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of persons •
in each State, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for President and Vice President of the
United States, Representatives in Congress, the Executive and Judicial officers
of a State; or the members of the Legislature thereof, is denied to any of the.
male inhabitants of such State, being twenty-one years of age, and citizens of
the United States, or in any way abridged, except for participation in rebel-
lion, or.other crime, the basis of representation therein shall be reduced in.
the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil or military,
under the United States, ?z. under any State, who, having previously taken an
oath, as a member of Congress, or as an offic er of the United States, .or as a
member of any State legislature, or as an executive or judicial officer of any
State, to support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the?same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
Section 4. The validity of the public debt of the United States, authorized
by law, including debts incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion, shall not be questioned. But
neither the United States nor any State shall assume or, pay any debt or
obligation incurred in aid of/insurrection or rebellion Igainst the United
States, or any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power - to enforce, by appropriate
legislation, the provisions of this article.
TEXAS CONSTITUTION
Art. 1
§ 13. Excessive bail or fines; cruel and unusual punishment; remedy by due
course of law
Sec. 13. Excessive bail shall not be,required, nor excessive fines imposed,
nor cruel or -unusual punishment inflicted. All courts shall be open, and every
person for an injury done him, in his lands, goods, person or reputation, shall
lhave remedy by due course of law.
16. Bills of attainder; ex post facto or retroactive laws; impairing obli-
gation of contracts
Sec. 16. No bill of attainder, ex post facto law, retroactive law, or any law
impairing the obligation of contracts, shall be made.
Zit! •-
etc.; due course of law
k4-' 19— Deprivation of life, liberty,
19. No citizen of this State shall be deTirived of life, liberty, property,
'ivileges or immunities, or in any manner -disfranchised, except by the due
p
'c'o'urse of the law of the land.
Aar .37 I.
§7. JUDICIAL DISTRICTS; DISTRICT
JUDGES; TERMS OR SESSIONS;
ABSENCE, DISABILITY OR
The Court shall conduct its proceedings at the county
DISQUALIFICATION OF JUDGE seat of the county in which the case is pending, except
The State shall be divided into judicial districts, as Otherwise provided by law. He shall hold the regular
with each district having one or more Judges as maybe terms of his Court at the County Seat of each County in
provided by law or by this Constitution. Each district his district in such manner as maybe prescribed by law.
judge shall be elected by the qualified voters at a Gen- The Legislature shall have power by General or Special
' eral Election and shall be a citizen of the United States Laws to make such provisions concerning the terms or
and of this State, who is licensed to practice law in this sessions of each Court as it may deem necessary.
State and has been a practicing lawyer or a Judge of a
The Legislature shall also provide for the holding of
Court in this State, or both combined, for four (4) years
District Court when the Judge thereof is absent, or is
next preceding his election, who has resided in the dis-
from any cause disabled or disqualified from presiding.
trict in which he was elected for two (2) years next pre-
ceding his election, and who shall reside in his district
during his term of office and hold his office for the pe-
riod of four (4) years, and who shall receive for his ser-
vices an annual salary to be fixed by the Legislature.
TEXAS CONSTITUTION
ARTICLE 16
GENERAL PROVISIONS
ART. 16, §15. SEPARATE &
COMMU NITY PROPERTY
All property, both real and personal, of a spouse
owned or claimed before marriage, and that acquired
afterward by gift, devise or descent, shall be the sepa-
rate property of that spouse; and laws shall be passed
more clearly defining the rights of the spouses, in rela-
tion to separate and community property; provided that
persons about to marry and spouses, without the inten-
tion to defraud pre-existing creditors, may by written
instrument from time to time partition between them-
selves all or part of their property, then existing or to be
acquired, or exchange between themselves the commu-
nity interest of one spouse or future spouse in any
property for the community interest of the other spouse
or future spouse in other community property then ex-
isting or to be acquired, whereupon the portion or in-
terest set aside to each spouse shall be and constitute a
part of the separate property and estate of such spouse
or future spouse; spouses also may from time to time,
by written instrument, agree between themselves that
the income or property from all or part of the separate
property then owned or which thereafter might be ac-
quired by only one of them, shall be the separate prop-
erty of that spouse; if one spouse makes a gift of prop-
erty to the other that gift is presumed to include all the
income or property which might arise from that gift of
property; spouses may agree in writing that all or part
of their community property becomes the property of
the surviving spouse on the death of a spouse; and
spouses may agree in writing tITt all or part of the
separate property owned by either or both of them shall
be the spouses' community property.
BUSINESS & COMMERCE CODE
CHAPTER 26. STATUTE OF FRAUDS
§26.01
CHAPTER 26. STATUTE OF' FRAUDS
B&CC §26.01. PROMISE OR
AGREEMENT MUST BE
IN WRITING t.
(a) A promise or agreement described in Subsec-
tion (b) of this section is not enforceable unless the
promise or agreement, or a memorandum of it, is
(1) in writing; and
f (2) signed by the person to be charged with the
promise or agreement or by someone lawfully autho-
rized to sign for him.
(b) Subsection (a) of this section applies to:
(1) a promise by an executor or adr4nistrator to
answer out of his own estate for any debt or damage
due from his testator or intestate;
(2) a promise by one person to answer for the
debt, default, or miscarriage of another person;
(3) an agreement made on consideration of mar-
riage or on consideration of nonmarital conjugal co-
habitation;
(4) a contract for the sale of real estate;
(5) a lease of real estate fore term longer than
one year;
(6) an agreement which is not to be performed
within one year from the date of making the agree-
ment;
(7) a promise or agreement to pay a commission
for the sale or purchase of.
(A) an oil or gas mining lease;
(B) an oil or gas royalty;
(C) minerals; or
(D) a mineral interest; and
(8) an agreement, promise, contract, or warranty
of cure relating to medical care or results thereof made
by a physician or health care provider as defined in
Section 74.001, Civil Practice and Remedies Code. This
section shall not apply to pharmacists.
History of B&CC §26.01: Acts 1967, 60th Leg., vol. 2, ch. 785, §1, eff. Sept
1, 1967. Amended by Acts 1977, 65th Leg., ch. 817, §21.01, eff. Aug. 29, 1977;
Acts 1987, 70th Leg,, ch. 551, §1, eff. Aug. 31, 1987; Acts 2005, 79th Leg., eh. 187,
§1, eff. Sept. 1, 2005.
See also O'Connor's Texas COA, "Statute of Frauds," ch. 54, p. 1381.
Ellin. PRACTICE & REMEDIES CODE
i CHAPTER 37. DECLARATORY JUDGMENTS
§§37.003 - 37.004
CPRC §37.006. PARTIES
GPRC §37.004. SUBJECT (a) When declaratory relief is sought, all persons
MATTER OF RELIEF who have or claim any interest that would be affected
(a) A person interested under a deed, will, written by the declaration must be'made parties. A declaration
contract, or other writings constituting a contract or does not prejudice the rights of a person not a party to
whose rights, status, or other legal relations are af- the proceeding.
fected by a statute, municipal ordinance, contract,
(b) In any proceeding that involves the validity of a
or franchise may have determined any question of municipal ordinance or franchise, the municipality
construction or validity arising under the instrument, must be made a party and is entitled to be heard, and if
statute, ordinance, contract, or franchise and obtain a the statute, ordinance, or franchise is alleged to be un-
declaration of rights, status, or other legal relations
thereunder.
constitutional, the attorney general of the state must
(b) A contract may be construed either before or
also be served with a copy of the proceeding and is en-
after there has been a breach.
(c) Notwithstanding Section 22.001, Property titled to Se heard.
Code, a person described by Subsection (a) may obtain
a determination under this chapter when the sole issue
concerning title to real property is the determination of
the proper boundary line between adjoining properties.
CPRC §37.008. COURT REFUSAL
TO RENDER
The court may Vuse to render or enter a declara-
tory judgment or dtcree if the judgment or decree
would not terminate the uncertainty or controversy giv-
ing rise to the proceeding.
CHAPTER 129. AGE OF MAJORITY
§129.001 Age of majority
§129.002 Rights, privileges, or obligations
§129.003 Alcoholic Beverage Code prevails
CPRC §129.001. AGE OF MAJORITY
The age of majority in this state is 18 years.
CPRC §129.002. RIGHTS,
PRIVILEGES, OR OBLIGATIONS
A law, rule, or ordinance enacted or adopted before
August 27, 1973, that extends a right, privilege, or obli-
gation to an individual on the basis of a minimum age
of 19, 20, or 21 years shall be interpreted as prescribing
a minim weage of 18 years.
Texas Family Code
SUBCHAPTER A. GENERAL RULES FOR
SEPARATE AND COMMUNITY
PROPERTY
§ 3.001. Separate Property
A spouse's separate property consists of:
(1) the property owned or claimed by the spouse
before marriage;
(2) the property acquired by the spouse during
marriage by gift, devise, or• descent; and
(3) the recovery for personal injuries sustained
by the spouse during marriage, except any recovery
for loss of earning capacity during marriage.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 3.002. Community Property
Community property consists of the property, other
than separate property, acquired by either spouse
during marriage.
OV R ft) ivt r Cope-
§ 22.004. Rules of Civil Procedure
(a) The supreme court has the full rulemaldng power in the practice and
procedure in civil actions, except that its rules may not abridge, enlarge, or modify
the substantive rights of a litigant.
(c) So that the supreme court has full rulemaldng power in civil actions, a rule
adopted by the supreme court repeals all conflicting laws and parts of laws
governing practice and procedure in civil actions, but substantive law is not
repealed. At the time the supreme court files a rile, the court shall file with the
secretary of state a list of each article or section of general law or each part of an
article or section of general law that is repealed or modified in any way. The list
has the same weight and effect as a decision of the court.
§ 24.030. Location of Court
(a) A district court shall sit in the county seat for a jury trial in a civil case. The
commissioners court of the county may authorize a district court to sit in any
municipality within the county to hear and determine nonjury trials in civil cases
and to hear and determine motions, arguments, and other matters not heard before
a jury in a civil case that is within the court's jurisdiction.
Texas Property Code
CHAPTER 22. TRESPASS TO TRY TITLE TITLE 10. MISCELLANEOUS
BENEFICIAL PROPERTY
SUBCHAPTER A. GENERAL PROVISIONS INTERESTS
Section
22.001. Trespass to Try Title.
SUBTITLE A. PERSONS
UNDER DISABILITY
CHAPTER 141. TRANSFERS TO MINORS
SUBCHAPTER A. GENERAL PROVISIONS
§ 22.001. Trespass to Try Title 1 § 141.001. Short Title
(a) A trespass to try title action is the method of This chapter may be cited as the Texas Uniform
determining title to lands, tenements, or other real. Transfers to Minors Act.
property. --
(b) The action of ejectment is not available in this § 141.002. Definitions
state. In this chapter:
(1) "Adult" means an individual who is at least 21
years of age.
TEXAS RULES OF APPELLATE PROCEDURE
APPEALS FROM TRIAL. COURT JUDGMENTS & ORDERS
TRAP 44. REVERSIBLE ERROR
44.1 Reversible Error in Civil Cases.
(a) Standard for reversible error No judgment
may be reversed on appeal on the ground that the trial
court made an error of law unless the court of appeals
concludes that the error complained of:
(1) probably caused the rendition of an improper
1 judgment; or
(2) probably prevented the appellant from properly
presenting the case to the court of appeals.
(b) Error affecting only part of case. If the error
affects part of, but not all, the matter in controversy and
that part is separable without unfairness to the pakties,
the judgment must be reversed and a new trial ordered
only as to the part affected by the error. The court may
not order a separate trial solely on unliquidated dam-
ages if liability is contested.
TEXAS RULES OF CIVIL PROCEDURE
PLEADING
TRCP 60. INTERVENOR'S
PLEADINGS
Any party may intervene by filing-a pleading, subject
to being stricken out by the court for sufficient cause
on the motion of any party.
TRCP 91a. DISMISSAL OF BASELESS
CAUSES OF ACTION (c) Except by agreement of the parties, the court
must rule on a motion unless it has been withdrawn or
91a1 Motion and Grounds. Except in a case the cause of action has been nonsuited in accordance
brought under the Family Code or a case governed by
with (a) or (b). In ruling on the motion, the court must
Chapter 14 of the Texas Civil Practice and Remedies
not consider a nonsuit or amendment not filed as per-
Code, a party may move to dismiss a cause of action on mitted by paragraphs (a) or (b).
the grounds that it has no basis in law or fact. A cause
(d) An amended motion filed in accordance with
of action has no basis in law if the allegations, taken as
(b) restarts the time periods in this rule.
true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought. A 91. a6 Hearing; No Evidence Considered. Each
cause of action has no basis in fact if no reasonable per- party is entitled to at least 14 days' notice of the hearing
son could believe the facts pleaded. on the motion to dismiss. The court may, but is not re-
quired to, conduct an oral hearing on the motion. Except
91a.2 Contents of Motion. A motion to dismiss - as required by 91a.7, the court may not consider evi-
must state that it is made pursuant to this rule, must
dence in ruling on the motion and must decide the mo-
identify each cause of action to which it is addressed,
tion based solely on the pleading Of the cause of action,
and must state specifically the reasons the cause of ac-
together with any pleading exhibits permitted by
tion has no basis in law, no basis in fact, or both. Rule 59.
91a7 Award of Costs and Attorney Fees Re-
91a.3 Time for Motion and Ruling. A motion to quired. Except in an action by or against a governmen-
dismiss must be: tal entity or a public official acting in his or her official
(a) filed within 60 days after the first pleading con- capacity or under color of law, the court must award the
taining the challenged cause of action is served on the prevailing party on the motion all costs and reasonable
movant; and necessary attorney fees incurred with resnect to
(b) filed at least 21 days before the motion is heard; the challenged cause of action in the trial court- The
and court must consider evidence regarding costs and fees
(c) granted or denied within 45 days after the mo- in determining the award.
tion is filed. 91a.8 Effect on Venue and Personal Jurisdic-
91a.4 Time for Response. Any response to the tion. This rule is not an exception to the pleading re-
motion must be filed no later than 7 days before the quirements of Rules 86 and 120a, but a party does not,
date of the hearing. by filing a motion to dismiss pursuant to this rule or ob-
taining a ruling on it, waive a special appearance or a
91a5 Effect of Nonsuit or Amendment; With-
motion to transfer venue. By filing a motion to dismiss,
drawal of Motion.
a party submits to the court's jurisdiction only in pro-
(a) The court may not rule on a motion to dismiss ceedings on the motion and is bound by the court's rul-
if, at least 3 days before the date of the hearing, the re- ing, including an award of attorney fees and costs
spondent files a nonsuit of the challenged cause of ac- against the party.
tion, or the movant files a withdrawal of the motion.
(b) If the respondent amends the challenged cause 91a.9 Dismissal Procedure Cumulative. This
rule is in addition to, and does not supersede or affect,
of action at least 3 days before the date of the hearing,
other procedures that authorize dismissal.
the movant may, before the date of the hearing, file a
withdrawal of the motion or an amended motion di-
rected to the amended cause of action.
TEXAS RULES OF CIVIL. PROCEDURE
PRETRIAL PROCEDURE
TRCP 166 - 166a
TRCP 166a. SUMMARY JUDGMENT in the motion or in an answer or any other response. Is-
(a) For Claimant. A party seeking to recover upon sues not expressly presented to the trial court by writ-
a claim, counterclaim, or cross-claim or to'btain a de- ten motion, answer or other response shall not be con..
claratory judgment may, at any time after the adverse sidered on appeal as grounds for reversal. A summary
party has appeared or answered, move with or without judgment may be based on uncontroverted testimonial
supporting affidavits for a summary judgment in his fa- evidence of an interested witness, or of an expert wit-
vor upon all or any part thereof. A summary judgment, ness as to subject matter concerning which the trier of
interlocutory in character, may be rendered on the fact must be guided solely by the opinion testimony of
issue of liability alone although there is a genuine experts, if the evidence is clear, positive and direct, oth-
issue as to amount of damages. erwise credible and free from contradictions and incon-
(b) For Defending Party. A party against whom a sistencies, and could have been readily controverted.
claim, counterclaim, or cross-claim is asserted or a de- (d) Appendices, References and Other Use of
claratory judgment is sought may, at any time, move Discovery Not Otherwise on File. Discovery prod-
' with or without supporting affidavits for a summary ucts not on file with the clerk may be used as summary
judgment in his favor as to all or any part thereof. judgment evidence if copies of the material, appendices
(c) Motion and Proceedings Thereon. The mo- containing the evidence, or a notice containing specific
tion for summary judgment shall state the specific references to the discovery or specific references to
grounds therefor. Except on leave of court, with notice other instruments, are filed and served on all parties to-
to opposing counsel, the motion and any supporting af- gether with a statement of intent to use the specified
fidavits shall be filed and served at least twenty-one discovery as summary judgment proofs: (i) at least
days before the time specified for hearing. Except on twenty-one days before the hearing if such proofs are to
leave of court, the adverse party, not later than seven be used to support the summary judgment; or (ii) at
days prior to the day of hearing may file and serve op- least seven days before the hearing if such proofs are to
posing affidavits or other written response. No oral tes- be used to oppose the summary judgment.
timony shall be received at the hearing. The judgment (e) Case Not Fully Adjudicated on Motion. If
sought shall be rendered forthwith if (i) the deposition summary judgment is not rendered upon the whole
transcripts, interrogatory answers, and other discovery case or for all the relief asked and a trial is necessary,
responses referenced or set forth in the motion or re- the judge ?nay at the hearing examine the pleadings
sponse, and (ii) the pleadings, admissions, affidavits, and the evidence on file, interrogate counsel, ascertain
stipulations of the parties, and authenticated or certi- what material fact issues exist and make an order
fied public records, if any, on file at the time of the hear- specifying the facts that are established as a matter of
ing, or filed thereafter and before judgment with per- law, and directing such further proceedings in the ac-
mission of the court, show that, except as to the tion as are just.
amount of damages, there is no genuine issue as to any
material fact and the moving party is entitled to judg-
ment as a matter of law on the issues expressly set out
TEXAS RULES OF CIVIL PROCEDURE
TRIAL or CAUSES
TRCP 300. COURT TO RENDER
JUDGMENT
Where a special verdict is rendered, or the conclu-
sions of fact found by the judge are separately stated
the court shall render judgment thereon unless set
aside or a new trial is granted, or judgment is rendered
notwithstanding verdict or jury finding under these
rules.
TRCP 301. JUDGMENTS
The judgment of the court shall conform to the
pleadings, the nature of the case proved and the ver-
dict, if any, and shall be so framed as to give the party all
the relief to which he may be entitled either in Iaw or
equity. Provided, that upon motion and reasonable no-
tice the court may render judgment non obstante
veredicto if a directed verdict would have been proper,
and provided further that the court may, upon like mo-
tion and notice, disregard any jury finding on a ques-
tion that has no support in the evidence. Only one final
judgment shall be rendered in any cause except where
it is otherwise specially provided by law. Judgment may,
TRCP 306a. PERIODS TO RUN FROM
SIGNING OF JUDGMENT
1. Beginning of periods. The date of judgment
or order is signed as shown of record shall determine
the beginning of the periods prescribed by these rules
for the court's plenary power to grant a new trial or to
vacate, modify, correct or reform a judgment or order
and for filing in the trial court the various documents
that these rules authorize a party to file within such pe-
riods including, but not limited to, motions for new
trial, motions to modify judgment, motions to reinstate
a case dismissed for want of prosecution, motions to
vacate judgment and requests for findings of fact and
conclusions of law; but this rule shall not determine
what constitutes rendition of a judgment or order for
any other purpose.
2. Date to be shown. Judges, attorneys and 5. Motion, notice and hearing. In order to es-
tablish the application of paragraph (4) of this rule, the
clerks are directed to use their best efforts to cause all
party adversely affected is required to prove in the trial
judgments, decisions and orders of any kind to be re-
court, o' sworn motion and notice, the date on which
duced to writing and signed by the trial judge with the
the party or his attorney first either received a notice of
date of signing stated therein. If the date of signing is
the judgment or acquired actual knowledge of the sign-
not recited in the judgment or order, it may be shown in
ing and that this date was more than twenty days after
the judgment was signed.
the record by a certificate of the judge or otherwise; 6. Nunc pro tunc order. When a corrected judg-
provided, however, that the absence of a showing of the ment has been signed after expiration of the court's
date in the record shall not invalidate any judgment or plenary power pursuant to Rule 316, the periods men-
order. tioned in paragraph (1) of this rule shall run from the
3. Notice of judgment. When the final judgment date of signing the corrected judgment with respect to
or other appealable order is signed, the clerk of the court any complaint that would not be applicable to the origi-
shall immediately give notice to the parties or their at- nal document.
torneys of record by first-class mail advising that the 7. When process served by publication. With
judgment or order was signed. Failure to comply with respect to a motion for new trial filed more than thirty
the provisions of this rule shall not affect the periods days after the judgment was signed pursuant to Rule
mentioned in paragraph (1) of this rule, except as pro- 329 when process has been served by publication, the
vided in paragraph (4). periods provided by paragraph (1) shall be computed as
4. No notice of judgment. If within twenty days if the judgment were signed on the date of filing the
after the judgment or other appealable order is signed, motion.
a party adversely affected by it or his attorney has nei-
ther received the notice required by paragraph (3) of
this rule nor acquired actual knowledge of the order,
then with respect to that party all the periods men-
tioned in paragraph (1) shall begin on the date that
such party or his attorney received such notice or ac-
quired actual knowledge of the signing, whichever oc-
curred first, but in no event shall such periods begin
more than ninety days after the original judgment or
other appealable order was signed.
RULES OF JUDICIAL ADMINISTRATION
(b) Concerning a juvenile not in a detention
facility: Not later than 30 days following the
filing of the petition, except for good cause shown
Rule 6. 'Arne Standards for the DispiiSition
of Cases of record.
Text of 86c-holt effective until May .4 401.e.. (3) Disposition Hearing
Not later than 15 days following the adjudicato-
See, also, text of Rule 6 effective May 1, 2012
• •.; .. ry hearing. The court may grant additional time
District and statutory county court judges of the in exceptional cases that require mere complex
county in which cases, are filed should, so far as evaluation,
reasonably possible, ensure that all cases are brought -(4) Nothing herein shall prevent .a judge from
to trial or final disposition in conformity with the recessing a juvenile hearing at any stage of the
following time standards: proceeding where the parties are agreeable or when
.. a. Criminal' Cases .. • • .• in the opinion of the judge-presiding in the case the
As provided by Article :32.A02, Code of Criminal -test interests of the child and of, society shall be
Procedure. ,.. • served, • •
1 b. Civil Cases Other Than Family. Law e...- Complex Cases
(1) Civil Jury Cases . ' It is recognized that in especially-complex cases
. ,
Within 18 months from appearance date. or special circumstances it may not be pdssible•to
(2) Civil Nenjury biseit : adhere tothese standards. .,
• Text of sectiorp effictive May 1; 2012. "See,
Within 12 months' frdmippearance date.:
also, text .of Rule 8 effective; until May 1,
c. Family LaNi 'Cases
R012.
(1) Contested Family Law Cases
• Rule. 6.1 District and Statutory county courts.
Within 6 Months from appearance date or with- Dist riot. and statutory 'county court judges of the
ii.
...M•6 months from the expiration of the waiting County in which cases are filed •should, so far 'as
i. period provided by the Family Code. where-rnich
1 is required, whichever is later- reasonably possible; ensure that all-cases are brought
to trial or final disposition in • conformity with the
. (2) " Uncontested Family Law Cases "- •
. .- folkiwing time atanda-rds:
Within 3 months from appearance. date or with- •' Article
... in 3 months from the expiration of the waiting (a) Criminal Cases. Ai prOvided h§
32A.02, Code of Criminal Procedbre. •
i:Period proVided by the Family bode where such
is required, whichever is later. '• (b) Civil- Cases Other Than Family Law.
Juvenile Cases ' (1) Civil Jury. Cases.' Within 18 Iiiiinths from
addition,to the requirements of Title 2, Texas appearance date.
y Oode:i (2) Civil bkmjury Cases. Within: 12 months from
.Detention.Vearings appearance date.
On the next business day following admission (c) Family Law Cases.
Atiy
. .detention
. facility. • . (1) Contested. Family Law Cases. Within 4
t Adfuelicatory.or Transfer (Faiver) Hearings,. months from appearance date .or within 6 months
`(a) Concerning a juvenile. in-a, detention tell: _ from the expiration of the waiting period provided
Not later than, 10 days.tollowing admission to by the Family Code Where such is required, Which-
..a facility, except for good cause shown, of . everis later.
rd. (2) Uncontested gamily Law Cases. Within 3
months from appearance date or within 8 Months
expiration of the waiting period provided
'-'by the Family Code where such is required, which-
" evr'iilater.
(d) Juvenile Cases. In addition to the require
Title 3, Texas •Farqy. Code:
, .(,1) ,Detention Hearings. On the next business
day following admission to any detention
Transfer (Waiver) Hearings.
• (2) Adjudicatdry or
APPENDIX V.
Westlaw.
Page 1
Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastland))
eluded that the annuity was Karen's separate prop-
Only the Westlaw citation is currently available. erty. He also claims that the trial court erred when
it valued a vehicle that it awarded to Karen. We af-
SEE TX R RAP RULE 47.2 FOR DESIGNATION
firm.
AND SIGNING OF OPINIONS.
I. Background Facts
MEMORANDUM OPINION
John and Karen Reaves were married for
Court of Appeals of Texas, twenty years. At the time of her marriage to John,
Karen owned a Best of America America's Vision
Eastland.
John REAVES, Appellant Annuity (the Vision Annuity). The annuity was fun-
v. ded by insurance proceeds that Karen received after
Karen REAVES, Appellee. the death of her previous husband. John was in act-
ive military service when he married Karen, first in
No. 11-11-00026—CV. the Air Force and then in the Army.
Aug. 31, 2012.
Karen suffered a debilitating back injury in
On Appeal from the 52nd District Court Coryell June 2000, and John became the primary wage
County, Texas, Trial Court Cause No. earner of the community. John was on active duty
CD-07-37323. in the military, and it was his practice to leave Kar-
Jeffrey Allen Armstrong and Joe A. Rivera, for en with a power of attorney when he was away on
John Reaves. duty. In December 2002, John executed a power of
attorney in which he appointed Karen as his attor-
Carol E. Prater and John H. Carney, for Karen ney-in-fact. This power of attorney was set to ex-
Reaves. pire on December 2, 2005.
As part of the course of treatment for her back
Panel consists of WRIGHT, C.J., McCALL, J., and
injury, Karen's doctors prescribed a pain manage-
KALENAK, J.
ment program for her. The doctors prescribed
Vicodin, Flexeril, and trazodone for pain relief;
MEMORANDUM OPINION Activelle for depression; and Zyrtec, Nasonex, and
PER CURIAM. Pantonol for allergy relief. However, the course of
*1 This is a marital property distribution case. treatment was not effective. Karen did not get bet-
At issue is the characterization of an annuity. The ter and experienced difficulty when she walked.
trial court entered a memorandum of decision and
confirmed that the annuity was Karen Reaves's sep- Karen later saw another doctor, who suggested
arate property. John filed a motion for reconsidera- that she would benefit from a facet nerve ion injec-
tion; Karen filed a motion for the trial court to sign tion. The treatment alleviated Karen's back pain.
a final divorce decree. Both motions were heard on However, she went back to the doctor a week later
the same day. The trial court entered a second with a new pain in her forearm and wrist. On July
memorandum of decision in which it declined to re- 3, 2003, the doctor increased Karen's prescription
characterize the annuity and confirmed that the an- for Celebrex and refilled her prescription for
nuity was Karen's separate property. The court then Vicodin.
entered a final decree of divorce. On appeal, John
Karen and John met Dick Dwinell when they
complains that the trial court erred when it con-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastland))
took a new member class taught by Dwinell at their money from the annuity faster in the event of her
church. In addition to his church activities, Dwinell death. The letter of acknowledgment that Karen
was also a financial planner. On July 7, 2003, Kar- signed lists the benefits of the transaction as cost
en and John met with Dwinell regarding their finan- savings and the addition of a spousal rider. Karen
cial investments. Karen testified that she had not testified that, when she raised concerns, Dwinell
discussed transferring her annuity, nor had she told her a story, which Dwinell called his
spoken to Dwinell about her finances at all before "commingling horror story," to illustrate the con-
she and John went to his office. Karen was presen- sequences of the transaction in the event of a di-
ted with documents that were already filled out and vorce. Dwinell told Karen that a judge would have
ready for her signature. Karen did not know how to determine the outcome. But Karen testified that
Dwinell knew to have the transfer forms completed Dwinell eventually told her that a judge would rule
and ready for her signature. However, she did know in her favor because the money originated from the
that John had appointments with Dwinell outside death of her first husband.
her presence.
Karen testified that she did not understand the
*2 Dwinell's notes reflect that there were times story that Dwinell used to explain the consequences
when he spoke to John outside Karen's presence. of a divorce. However, she felt pressured, shamed,
Dwinell noted that he asked John if they were sure and "cajol[ed]" by Dwinell for asking about di-
about transferring the couple's IRAs and brokerage vorce, so she finally signed the papers. Karen also
accounts from Fidelity to Oppenheimer funds and testified that her intention on that day was to
that John replied, "Yes, we are"; Karen was not streamline John's receipt of benefits in the event of
present. Dwinell had an asset allocation/risk toler- her death, not to make a gift to John's separate
ance worksheet on file that was filled out by John property
on May 23, 2003. However, there was not one for
Karen even though Dwinell admitted that "[t]here Dwinell did not explain to Karen that she was
should have been one with Karen's signature on it giving John half of the annuity. Dwinell recommen-
as well." Karen introduced a document entitled ded the transaction for its supposed tax advantages.
"investment advisory recommendations" that was However, he never advised Karen and John of the
prepared for Karen and John by Dwinell on June potential gift tax consequences of the transaction.
26, 2003. The document included the recommenda- Dwinell testified that he did not consider it a gift
tion that Karen's Vision Annuity be changed to the when spouses transferred individual accounts into a
Future Annuity II. In the corner of the document, joint account. He knew that the annuity was funded
there is a handwritten notation of a call to Best of with a single premium purchased by Karen before
America for a change of ownership and request for the marriage and that it was in her name, but he did
a letter of instruction. Dwinell testified that that call not remember if he investigated whether it was her
was made to Best of America regarding a change of separate property. Dwinell agreed that he owed
ownership on July 1, 2003. both John and Karen an equal duty to look after
their best interests. However, a change in owner-
One of the documents presented to Karen for ship was of no benefit to Karen. Every potential ad-
signature at the July 7 meeting was for the conver- vantage Dwinell gave for purchasing the new
sion of her Vision Annuity to a new product, the product could have been accomplished without
Best of America America's Future Annuity II (the making John an owner on the account. Dwinell
Future Annuity). Karen testified that Dwinell led made a $14,522.10 commission on the transaction.
her to believe that the change was a beneficiary
change that would enable John to receive the *3 When asked what he did to make sure Karen
was completely informed about the potential con-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastland))
sequences of the transaction, Dwinell testified that fronted him, John admitted that he was planning to
he told Karen that, if there was a divorce, a judge file for divorce when his work contract was re-
would have to make a determination. The potential newed. Karen filed her own divorce action in Feb-
for loss was "[i]mplied," and he simply did not tell ruary 2007.
Karen that she essentially was gifting half of the ac-
count because he thought that, "if you have joint After it heard testimony and weighed the evid-
ownership, that should be understood." However, ence, the trial court issued a memorandum of de-
Dwinell also told Karen that she was the "lead own- cision in which it characterized the Future Annuity
er" and that John was the "joint owner," but, at tri- II as Karen's separate property. It also listed specif-
al, pleaded ignorance about the legal significance of ic findings as the basis for its decision. The trial
those terms. He did not explain to Karen that she court found that Karen's separate property solely
would no longer have authority to make changes on funded the Future Annuity II, that it was not in-
the account without John's permission because creased by any community funds, and that the cur-
"[s]he didn't ask the question about it." rent annuity was traceable to Karen's separate prop-
erty. It also found that, at the time of the conver-
Dwinell testified that he never would have re- sion, the annuity was the largest asset owned by
commended the change in ownership if he thought either of the parties.
he was dealing with clients who were going to get
divorced. However, during the meeting, Karen spe- Additionally, the trial court found that it was
cifically asked about the consequences of a divorce. not Karen's intent to make a gift of one-half of the
Dwinell's own notes from the meeting confirm this. annuity to John and that she did not understand that
Dwinell's response was to tell Karen a story about a her actions would raise the presumption of a gift.
man who willed all his belongings to his son but The trial court also found that the primary discus-
also remarried and changed his accounts to joint ac- sion concerning the conversion was that it would
counts with his new wife. The son was left out of reduce management fees and would create a spous-
the estate. This story illustrates the legal con- al benefit for John. Karen's intent was to purchase
sequences of death, but not necessarily divorce. an improved product. It was also significant to the
Dwinell also referred to the transaction as a trial court that there apparently was no discussion
"commingling" of the funds. But no funds were of estate planning, a common reason given for large
ever commingled. gifts between spouses. John's and Karen's estates
were not of a size to necessitate equalization of
In 2005, Karen discovered that John was mov- their estates for estate tax purposes.
ing money away from their joint accounts. She re-
sponded by using her power of attorney to execute *4 Finally, the trial court found that John took
an Owner Change Request form in which she asked an active role in arranging the transaction. There
to remove John as co-owner of the Future Annuity was substantial direct contact, discussion, and de-
H. In January 2006, John retired from the U.S. Mil- cision-making that took place between John and
itary, with twenty-two years and two months of ser- Dwinell regarding the annuity conversion. There
vice. Seventeen years and seven months of his ser- was a personal relationship between the three
vice occurred during his marriage to Karen. parties through their church.
During the summer of 2006, John began to live The trial court found that the totality of the cir-
and work in San Antonio; he returned home on the cumstances suggested that Karen was not fully in-
weekends. In December of that year, Karen found, formed of the possible effects of the conversion of
among John's things, preliminary paperwork re- the annuity and that she relied on John and Dwinell.
garding a divorce between them. When Karen con- The circumstances, it found, "indicate a situation in
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Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastland))
which it would not be appropriate to presume or curred. Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d
imply an actual intent to make a gift with regard to 645, 648 (Tex.1965).
[Karel-1]'s primary separate property asset which
was the largest asset of her estate." At no time was When an appellant challenges the trial court's
Karen made aware that she was making a gift of order on legal or factual sufficiency grounds, we do
one-half of the annuity to John as his separate prop- not treat these as independent grounds of reversible
erty. The trial court found that there was not suffi- error but, instead, consider them as factors relevant
cient evidence to prove that the alleged gift was to our assessment of whether the trial court abused
made knowingly, voluntarily, and fairly. The court its discretion. Wells, 251 S.W.3d at 838 (citing
made the specific finding that Karen's testimony Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App.Fort
and the other evidence were sufficient to rebut the Worth 2004, no pet.). To determine whether the tri-
presumption of a gift. al court abused its discretion because the evidence
is legally or factually insufficient, we consider
The court also valued each asset in the estate whether the court (1) had sufficient evidence upon
and made a division of those assets. The 2007 which to exercise its discretion and (2) erred in the
Honda Accord, the subject of appellant's third and application of that discretion. Id. (citing Lindsey v.
fourth issues, was awarded to Karen and valued at Lindsey, 965 S.W.2d 589, 592 (Tex.App.-E1 Paso
$0.00. 1998, no pet.)).
II. Issues *5 When the burden of proof at trial is clear
In his first two issues, John asserts that the trial and convincing evidence, as when a party attempts
court abused its discretion when it characterized the to rebut the "community presumption," we apply a
annuity as Karen's separate property because the higher standard of legal and factual sufficiency re-
evidence was legally and factually insufficient to view. See In re J.F.C., 96 S.W.3d 256, 265-66
rebut the presumption that she had gifted one-half (Tex.2002); In re C.H., 89 S.W.3d 17, 25-26
of the annuity to him. In his third and fourth issues, (Tex.2002); Moroch v. Collins, 174 S.W.3d 849,
he argues that the evidence was legally and factu- 857 (Tex.App.-Dallas 2005, pet. denied). Clear and
ally insufficient to support the trial court's valuation convincing evidence is defined as "that measure or
of Karen's Honda Accord at $0.00. degree of proof which will produce in the mind of
the trier of fact a firm belief or conviction as to the
III. Standard of Review truth of the allegations sought to be established."
Absent an abuse of discretion, the trial court's Moroch, 174 S.W.3d at 857; see also TEX.
determination of the character of property and its FAM.CODE ANN. § 101.007 (West 2008). To
distribution will not be disturbed on appeal. Murff meet the clear and convincing burden, the proof
v. Murff 615 S.W.2d 696, 698-99 (Tex.1981); Bi- must "weigh more heavily than merely the greater
gelow v. Stephens, 286 S.W.3d 619, 620 weight of the credible evidence, but the evidence
(Tex.App.-Beaumont 2009, no pet.); Wells v. Wells, need not be unequivocal or undisputed." Moroch,
251 S.W.3d 834, 838 (Tex.App.-Eastland 2008, no 174 S.W.3d at 857-58.
pet.). A trial court abuses its discretion when it acts
without reference to any guiding rules or principles. IV. Presumptions
Downer v. Aquamarine Operators, Inc., 701 Property possessed by either spouse during or
S.W.2d 238, 241-42 (Tex.1985). The mere fact that on dissolution of the marriage is presumed to be
a trial court may decide a matter within its discre- community property. TEX. FAM.CODE ANN. §
tionary authority in a different manner than an ap- 3.003(a) (West 2006). The party asserting that a
pellate court in a similar circumstance does not certain piece of property is actually separate prop-
demonstrate that an abuse of discretion has oc- erty must establish the separate character of the
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Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastland))
property by clear and convincing evidence. Id. § discretion when it characterized the annuity as Kar-
3.003(b). "The statutory presumption that property en's separate property because the evidence was
possessed by either spouse upon dissolution of the legally and factually insufficient to rebut the pre-
marriage is community is a rebuttable presumption sumption that she had gifted one-half of the annuity
and is overcome by evidence that a specified item to him. Karen argues that the burden to prove don-
of property is the separate property of one spouse ative intent shifted back to John when she rebutted
or the other." Moroch, 174 S.W.3d at 856. To satis- the presumption of an interspousal gift. Both parties
fy this burden, the spouse must trace "the separate agreed that the annuity could be traced to Karen's
origin of the property through evidence showing the separate property prior to the marriage. They also
time and means by which the spouse originally ob- agreed that no community funds were ever added to
tained possession of the property." Moroch, 174 the annuity. The issue, therefore, does not concern
S.W.3d at 856-57; see also Cockerham v. Cocker- tracing but, rather, whether Karen had the donative
ham, 527 S.W.2d 162, 167 (Tex.1975). intent necessary to make a gift to John.
Property of a spouse owned before marriage, Appellant argues that, because the instrument
and that acquired afterward by gift, devise or des- of conveyance contained a "separate property recit-
cent, is the separate property of that spouse. TEX. al," the trial court should not have allowed parol
CONST. art. XVI, § 15; see also TEX. FAM.CODE evidence to rebut the presumption of gift. He cites
ANN. § 3.001(2) (West 2006) (defining separate Roberts v. Roberts for this proposition. Roberts v.
property as including property "acquired by the Roberts, 999 S.W.2d 424, 432 (Tex.App.-E1 Paso
spouse during marriage by gift"). Property pur- 1999, no pet.). John points to part of the letter of
chased during the marriage with monies that can be acknowledgment of the Future Annuity II that Kar-
traced to a spouse's separate estate is characterized en signed that contains a statement that she
as separate property. Pace v. Pace, 160 S.W.3d "ordered the liquidation and transfer [of an] invest-
706, 711 (Tex.App.-Dallas 2005, pet. denied). ment [she] currently own[s]." This, he says, is a
"separate property recital" because it states that the
A second presumption arises when, as here, a consideration for the Future Annuity II was Karen's
spouse uses separate funds to purchase property separate property. He also cites the prospectus for
during marriage and takes title to the property in the Future Annuity II because it states that "[}]pint
joint names. In that event, there is a presumption owners each own an undivided interest in the con-
that a gift was intended. Harrison v. Harrison, 321 tract."
S.W.3d 899, 902 (Tex.App.-Houston [14th Dist.]
2010, no pet.) (citing Cockerham, 527 S.W.2d at In Roberts, as in most, if not all, other cases
168). This presumption, however, can be rebutted that deal with "separate property recitals," land was
by evidence that establishes there was no intent to the property at issue and the instrument of convey-
make a gift. Id. A rebuttable presumption shifts the ance was a deed. In addition, the cases cited in
burden to produce evidence to the party against Roberts dealt with transactions whereby a wife re-
whom it operates. Gen. Motors Corp. v. Saenz, 873 ceived a deed that contained a recital that certain
S.W.2d 353, 359 (Tex.1993). Once the burden is realty was to be her separate property and that it
discharged and evidence contradicting the presump- was paid for from her separate estate. Henry S.
tion has been offered, the presumption disappears Miller Co. v. Evans, 452 S.W.2d 426, 430-31
and is not weighed or treated as evidence. Id. (Tex.1970); Messer v. Johnson, 422 S.W.2d 908,
912 (Tex.1968). Additionally, the "separate prop-
V. Analysis erty recitals" in these types of cases involve the use
A. Karen's Separate Property of specific terminology. "The cases which hold that
*6 John argues that the trial court abused its
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Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastland))
parol evidence is not admissible to contradict the of Acknowledgement" seems to corroborate Kar-
express recitals in a deed, involve deeds which ex- en's testimony. He listed the savings in annual
pressly state that property is conveyed to grantees charges and the spousal rider feature as the benefits
as their separate property or for their separate use. of the transaction. We conclude that Karen rebutted
" Bahr v. Kohr, 980 S.W.2d 723, 727 the presumption when she testified that she did not
(Tex.App.-San Antonio 1998, no pet.). The de- intend to make a gift and when she provided an al-
cision to exclude parol evidence rests "not upon a ternative reason for the transaction. See Harrison,
recital of contractual consideration, but upon the 321 S.W.3d at 902. Because Karen discharged her
fact that the instrument stipulated, in effect, that the burden and offered evidence that contradicted the
beneficial ownership of the property was conveyed presumption, the presumption disappears and is not
to the [spouse] for [his or her] separate use." Jack- weighed or treated as evidence. Id. The evidence is
son v. Hernandez, 285 S.W.2d 184, 186 then evaluated as in any other case, and the pre-
(Tex.1955). sumption has no effect on the burden of persuasion.
Id.
This case is distinguishable from Roberts in
that it does not involve a deed. The recitals to Thus, the burden was placed back on John.
which John refers in this case do not state that John Generally speaking, one who is claiming the exist-
purchased his interest in the annuity with his own ence of a gift has the burden of proof on that issue.
separate property. Also, the recitals are not that the The burden to prove a gift is on the party who
property will be John's "separate" or "sole and sep- claims it. Powell v. Powell, 822 S.W.2d 181, 183
arate" property or for his "separate use." The words (Tex.App.-Houston [1st Dist.] 1991, writ denied).
"separate property" or "separate use" are never A gift is a "voluntary transfer of property to another
used in the contract, letter of acknowledgment, or made gratuitously and without consideration."
prospectus. Though the contract uses the term Wells, 251 S.W.3d at 839 (citing Hilley v. Hilley,
"joint owner," which is defined in the prospectus as 342 S.W.2d 565, 569 (Tex.1961)). To establish the
giving joint owners "an undivided interest in the existence of a gift, the party must prove three ele-
contract," nothing in the documents indicates that ments: (1) intent to make a gift; (2) delivery of the
there has been a conveyance from Karen to John or property; and (3) acceptance of the property. Id.
that any sort of transfer in beneficial ownership has (citing Long v. Long, 234 S.W.3d 34, 40
occurred. The trial court found that Karen relied (Tex.App.-El Paso 2007, pet. denied)). A party es-
upon Dwinell's advice in the transaction, but when tablishes the requisite donative intent by, among
asked about the meaning of "undivided interest," other things, presenting "evidence that the donor in-
Dwinell testified, "You're going way back in my tended an immediate and unconditional divestiture
memory banks" and "That's a legal term and I'm of his or her ownership interests and an immediate
sorry." Because the contract does not expressly re- and unconditional vesting of such interests in the
cite the character and use of the property, we find donee." Nipp v. Broumley, 285 S.W.3d 552, 559
that the parol evidence rule does not prevent intro- (Tex.App.-Waco 2009, no pet.).
duction of evidence to rebut the presumption of a
gift. Even when applying a higher standard of legal
and factual sufficiency review, there is ample evid-
*7 Karen testified that she did not intend to ence in the record to support the trial court's find-
make a gift to John and that the only purpose of the ings that Karen did not intend to give one-half of
transaction was to streamline John's receipt of be- the annuity to John as a gift. Because of her medic-
nefits in the event of her death. Dwinell's handwrit- al condition, Karen relied upon John to read the
ing on the "Variable Annuity/Variable Life Letter documents and tell her of any major changes. John,
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Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastiand))
to consider the weight and credibility of the testi-
mony and other evidence submitted in making its
determination as to the valuations to be assigned to
the various items of property." In re Marriage of
Jackson, 506 S.W.2d 261, 266
(Tex.Civ.App.-Amarillo 1974, writ dism`d). When a
trial court is asked to choose between different val-
ues, it has broad discretion in determining what val-
ues to assign. See Williams v. Clark, No.
034340585—CV, 2004 WL 1171704, at *4
(Tex.App.-Austin May 27, 2004, no pet.)
(mem.op.) ("faced with two conflicting versions of
the value of a piece of the couple's property," the
trial court did not abuse its discretion in choosing to
believe one party over the other).
Karen and John gave roughly the same answer
when asked about the debt secured by the vehicle.
However, the trial court was given a range of po-
tential values that depended upon the condition of
the vehicle. The court was given no evidence about
the vehicle's condition, other than the fact that John
assigned it a value that corresponds with the Kelley
Blue Book's "excellent" category. But, by all ac-
counts, the value of the vehicle was very close to
the balance due on the loan. The trial court had
broad discretion and was not without sufficient
basis for its decision. The trial court did not abuse
its discretion by assigning the vehicle a net value of
$0.00. John's third and fourth issues are overruled.
The judgment of the trial court is affirmed.
Tex.App.-Eastland,2012.
Reaves v. Reaves
Not Reported in S.W.3d, 2012 WL 3799668
(Tex.App.-Eastland)
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
Not Reported in S.W.3d, 2012 WL 3799668 (Tex.App.-Eastland)
(Cite as: 2012 WL 3799668 (Tex.App.-Eastland))
Karen, and Dwinell each testified that no one ever first amended inventory that the 2007 Honda Ac-
told Karen that she was giving John anything. The cord had no community value.
words "gift" or "give" were never used, and the fact
that the transaction would give half of the account Generally, unless a party's inventory is admit-
to John was not discussed by anyone. The testi- ted into evidence, that party may not rely on the in-
mony at the hearing made clear that Karen was ill- ventory as evidence on appeal. Tschirhart v.
advised by Dwinell about the consequences of the Tschirhart, 876 S.W.2d 507, 509 (Tex.App.-Austin
transaction. We cannot say that the trial court ab- 1994, no writ). However, in Vannerson v. Vanner-
used its discretion. There was clear and convincing son, the court concluded that, because sworn in-
evidence of a lack of donative intent on Karen's ventories are filed with the trial court and because
part. We overrule appellant's first and second is- the court may take judicial notice of its own papers,
sues. a trial judge may rely on information gleaned from
sworn inventories even if such documents have not
B. Valuation of the Honda Accord been formally introduced into evidence. Vannerson
*8 The trial court awarded Karen a 2007 Honda v. Vannerson, 857 S.W.2d 659, 671
Accord. In his third and fourth issues, John argues (Tex.App.-Houston [1st Dist.] 1993, writ denied).
that the evidence is legally and factually insuffi- In Bradford v. Bradford, the court held that the ap-
cient to support the trial court's ruling by which it pellant was estopped to complain that documents
assessed the value of the Honda Accord. The trial were not admitted in evidence and so could not be
court valued the car, less the debt secured against it, considered on appeal when the trial court and
at $0.00. John filed a motion for reconsideration in parties treated the documents as if they were in
which he asked the trial court to revalue the car at evidence and the appellant voiced no objection be-
$3,389. low. Bradford v. Bradford, No. 14-94-00881—CV,
1995 WL 613060, at *2 (Tex.App.-Houston [14th
Karen testified that the balance due on the car Dist.] Oct. 19, 1995, no writ) (not designated for
loan was $10,723.65. She introduced into evidence publication).
a statement from her credit union from June 27,
2008, several days prior to the hearing, showing an In this case, the inventories were not formally
auto loan balance in the amount of $10,723.65. introduced into evidence. They were filed after the
John testified that the loan amount was $11,800 and final hearing, but prior to the trial court's memor-
that the vehicle was worth $16,175. This was all of andum of decision. John never objected to the trial
the evidence before the court as to the value of the court's use of the inventories as evidence below and
vehicle and the debt secured by it. does not make that argument on appeal. The issue
was not mentioned in appellant's motion for recon-
However, the court also had in its files invent- sideration or during the trial court's hearing on the
ories from both parties that were filed after the trial motion, even though the trial court stated, "[T]he
hearing. According to John's First Amended Invent- parties did file amended inventories that were ac-
ory and Appraisement, the vehicle had a value of cepted by the Court in June of '09. And I under-
$11,925. He attached to his inventory an estimate stood that to be in addition to what evidence had
from the Kelley Blue Book website that gave a been presented previously." We do not think that,
range of trade-in value estimates for the vehicle. in this instance, the trial court erred by relying upon
The values were listed as $11,925 for a vehicle in information that it gleaned from the inventories.
excellent condition, $11,125 for a vehicle in good However, even if the trial court had erred, John has
condition, and $9,850 for a vehicle in fair condi- waived the issue.
tion. The Kelley Blue Book valuations assume "an
accurate appraisal of condition." Karen stated in her *9 The trial court, as the factfinder, is "entitled
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.