NO. n4.12-QQ517-CV
IN THE FOURTH COURT OF APPEALS AT SAN ANTONIO SERGIO ALANIS,SR. MARIA GUADALUPE ALANIS, SUSIE ALANIS, SERGIO ALANIS, AND ALONZO ALANIS APPELLANTS V JESUS MARIA ALVAREZ & ALVAREZ AND ASSOCIATES APPELLEES

V ANA LISA GARZA APPELLEE/INTERVENOR OnAppeal from the 381" Judicial District Court of Starr County, Texas The Honorable Federico G. Hinojosa District Judge Trial Court Case Number DC-00-328 m

APPAI.LANT'S MOTION TO REVIEW FURTHER ORDERS TO THE HONORABLE JUDGE{S) OF SAID COURT: COMES NOW, Sergio Alanis Sr.Appellant herein, without the aid ofcounsel and files his Motion to Review Further Orders.

Pg.l •sr. o o

1 ^ Oo'M z -r-'-j -o ' W rr
y-r. \0IN THE TEXAS COURT OF APPEALS FOURTH CIRCUIT
SERGIO ALANIS, SR. et al APPELLANTS

vs. JESUS MARIA ALVAREZ et al APPELLEES
vs. ANA LISA GARZA APPELLEE/INTERVENOR § § § § § § § § APPEAL NO. 04-12-00517-CV

TRIAL COURT NO. DC-00-328

APPELLANT'S MOTION TO REVIEW FURTHER ORDERS TO THE HONORABLE JUDGE(S) OF SAID COURT: 

### Appellant files his Motion to Review Further Orders Pro Se. Appellant moves for relief fi*om theInterlocutory Order ofthe Honorable Federico G. Hinojosa District Judge. Granting 

### Appellee/Intervenor's Second Motion for Summary Judgment. This Appeal ispursuant under Texas Rule ofCivil Procedure 42). Tex. Civ. Prac. & Rem Code § 51.014 andTRAP 29.6 Review ofFurther Orders. STATEMENT OF FACTS 

### Sergio Alanis, Sr., and his wife Maria Guadalupe Alanis (here in after Appellant ofAlanis's) On or about NOVEMBER 06.2000 sued Jesus Maria Alvarez & Alvarez and Associates 

### (here inafter Mr. Alvarez orAppellee) and Ana Lisa Garza Intervenor(here inafter referred toas "Ms. Garza")(here in after collectively referred to as the "Appellees"). (1) On or about May04,2010 Jesus MariaAlvarez &Alvarez andAssociates filedtheirMotion For Summary Judgment. (2) On or aboutJune 11,2010 TheAppellant's filedtheirresponse to Defendant/Intervenor's Motion For Summary Judgment. (3) On or aboutAugust 27,2010 Ms. Garza filed their Intervenor's Motion For Summary Judgment. See Exhibit "A" pgs. 1-13. Pg.2(4) OnJuly 23,2012 TheTrial Court granted Ms. Garza Motion in an Interlocutory Order and later granted both motions in a Final Judgement. (5) Onor aboutOctober 09,2013 Honorable Catherine Stone, ChiefJustice, Honorable Sandee Bryan, Justice andHonorable Patricia O.Alvarez Justice. REVERSED AND REMENDED to the trial court for further Proceedings. See Exhibit "B" pgs.1-5. (6) Onor about April 22,2015 Ms. Garza filed an identical Motion with thesame arguments, facts 

### and case law, the only difference isthat Ms, Garza changed the title now it is Intervenor's Second Motion for Summary Judgment. See Exhibit "C" pgs. 1-13 

### (7) On orabout June 11,2015 the Appellant's filed their response to Intervenor's Second Motion 

### for Summary Judgment and asked the court todismissed the motion onthe grounds that the Fourth Court ofAppeals had already ruled onthose arguments. See Exhibit "D" pgs. 1-13. (8) On orabout September 15,2015 the Appellant's filed a written request asking the court again to dismissed Intervenor's Second Motion for SummaryJudgment. See Exhibit "E" pgs. 1-2. 

### (9) Onorabout October 21,2015 Judge Federico G. Hinojosa entered his Interlocutory Order, granting Intervenor's Second Motion for Summary Judgment. See Exhibit "F" pg. 1.

ARGUMENTS 

### This Appeal ispursuant under TRAP 29.6 Review offurther orders (A) Motion toReview Further Orders. While an appeal is pending from Interlocutory Orderis pending, on a party's motion or onthe appellate court'sown Initiative, the appellate court may review the following: (1) A further appealable Interlocutory Order concerning the same subject matter; and(2) any Interlocutory Order thatInterferes with or Impairs theeffectiveness of the reliefsought or that may be granted on appeal. (B) Record, Theparty filing themotion may relyon theoriginal record. The trialcourt ignoredappellant'srequest to dismissed to Intervenor's Second Motion for Summary Judgment and ignored the FourthCourtofAppeals Order issuedOctober09,2013. Ms. Garza is an attorney at lawand a Starr County District Judge, sheknows thatthe law of the land is: Pg.3When the Fourth Court ofAppeals denied her arguments, she then had the right to present her argument to the Supreme Court, but she choose not to. Ifthis Honorable Court does not over turn the trial courts Order it will allow the appellee's and trial court to do as they please. Ms. Garza Intervenor's Second Motion for Summary Judgment is frivolous and should be overturn so this case can proceed to trial. The law is quit clear that once the higher court makes its ruling on a case it cannot be presented to the lower court again, and in this case Ms. Garza did. See Exhibits "A" and " C". and trial court granted her motion for the second time this is wrong.
PRAYER FOR RELIEF WhereforeAppellant's humbly and respectfullypray that the Honorable Coiut Reverse/Dismissed The Order ofthe lower court. And Grant Appellant's Motion to Review Further Orders so this case can proceed to trail, on the material facts and law presented herein, and for any other relief this Honorable Court deemsjust. RespectfullySummited November 09.2015
Susie Alanis ^ P.O. Box 2601 Roma, Texas 78584 Sergio Alanis, Jr. P.O. Box 2601 Roma, Texas 78584

Alonro Alanis P.O. Box 2601 Roma, Texas 78584

Pg.4 sAlams, Sr. Pro i Sergio Sr. Pro Se and lead counsel 402 N. Garcia St. Rio Grande City, Texas 78582 Maria Guadalupe Alams P.O. Box 2601 Roma, Texas 78584CERTIFICATE OF SERVICE 

### I Sergio Alanis Sr., do hereby certify that atrue and correct copy ofthe above Instrument has been forwarded via United States Mail, with proper postage affixed and/or fax, onthis 09_ofNovember 2015 to the following attorneys ofrecord. Sincerely,

Jesus Maria Alvarez & Alvarez and Associates 501 N. Britten Ave. Rio Grande City, Texas 78582

Ricardo Gonzalez 124 S. 12'^Ave. Edinburg, Texas 78539 

### Seii^o Alanis, Sr. Pro Se and lead coimsel 402 N. Garcia St. Rio Grande City, Texas 78582

Pg.5

## r

, SERGIO ALAN1Z,SR and MARIA GUADALOPE ALANIZ, Plaintiff

vs. JESUS MARIA ALVAREZ and ALVAREZ & ASSOCIATES, Defendants ANA LISA GARZA Intervenor CAUSE NO. DC-00-328 § INTHE DISTRICtr COURT § § § ICIAL
njovn

STARR COUNTi INTERVENOR*S MOTION FOR SUMMARY JUDGME? TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, ANA LISA GARZA, Intervenor and Movant, in the numbered cause and hereby files this her Motion for Summary Judgment SERGIO ALANIZ, SR., (hereinafter referred to as "Plaintiff'), and in support of this Motion, Intervenor would show the Court the following: I. This Motion for Summary Judgment is requested against Plaintiffoi i the groimds that Plaintiffs claimsare barred by the statuteoflimitations.
IL Pursuant to Texas Rules ofCivil Procedure 166a, Intervenor ANA LIJ fora summaryjudgment because the uncontradicted Summary Judgment evidence establishes as
a matfptr of law that the Plaintiff's claims against Defendant JESUS MAR A ALVAREZ are barred by the statute oflimitations. .TEXAS
T

above styled and against Plaintifr,

A GARZA moves

Intervenor's Motion for Summary Judgment Page 1 of 14 

### EXHIBIT 

# "A" 1

0007

### r
> *•

m. FACTS 

### piainfiffpremises his causes ofaction against Defendant on alleged £n aid and breach of fiduciary duties in relation to conveyance ofthe subject real property by Plair JESUS MARIA ALVAREZ. Defendant JESUS MARIA ALVAREZ « 

### conv^ance was made as partial payment for legal fees paid for Defendan: 

### ALVAREZ'S legal representation for PlaintiflF SERGIO ALANIZ, SR. inconn *tion with federal criminal charges brought against thesame. DefendantsJESUS MARIA ALVAREZ and ALVAREZ & ASSOCIATliS filed an Answer and a counterclaim for declaratoryjudgment to remove cloud on title to the su iject real property DefendantJESUS MARIA ALVAREZ later conveyedthe subject real property tiffs to Defendant ntends that such

JESUS MARIA

to Intervenor ANA LISA GARZA for consideration, byduly executed Deed. See Exhibit "A". Inte rvenor ANA LISA 

### GARZA claims legal ownership to the subject real property by virtue of a deet thesame toher. The subjectreal property isdescribed asfollows: conveying title of THE SURFACE AND THE SURFACE ONLY in and to Forty-eight ind 48/100 (48.48) east half (E/2) of

situated in Starr acres of land, more or less, out of forming a part ofportion ofthe Porcion No. Eighty-Three (83 Ancient Jurisdiction of Camargo, now 

### County, Texas ,and being more particularly described by metes and pounds as follows; to-wit: BEGINNING at a point of the center line of Road, in the E/i; of the portion 

### No.83,Camargo Jurisdiction, which is distant ,S. 26* 59' 07' E., 1340.57 feet fi^m the intersection of the dividing line between W/2 and E/2 of the Porci( >n No.83,Camargo Jurisdiction with the center line ofCharco Blanco Road, for S.W come rhereof; THENCE N.59* 52'E. 437.22 feet, to an iron rod, for bend in line; THENCEN. 09* 15' E., 853.54 feet, to an iron rod, for an Inner com n hereof; THENCEN.80*45'W., 208.7 feet, to an iron rod, for a comer hereof; THENCEN. 09*15'E.l 129.33 feet, to an iron rod, for an Inner comer lereof; THENCE N.80*45'W., 208.7 feet, to an iron rod, foe a comer hereof; THENCE N.09* 15' E., 458.6 feet, to an iron rod, for N.W. comer herr of;
Intervenor's Motion for Summary Judgment Page 2 of 14 

## 0008

### T"- 

### r

THENCE S.80*45' E., 838.9 feet, to an iron rod, for N.E comer hereof; THENCE S.09*1S*W., 1623.11 feet, to an iron rod, for an Inner comer hereof; THENCE S.80*45'E., 12S.0 feet, to an iron rod, for the most Easterly ^ JB comer hereof; THENCES.09*15'W, 752.3 feet, to an iron rod, for most Easterly S.E < omer hereof; THENCE N.80*45'W., 125.0 feet, to aniron rod, foran Innercomerhejreof; THENCE S.09*15*W., 614.2 feet, to an iron rod, for Bend Line; THENCE S.59*52'W., 688.1 feet, to an iron rod, for S.E comer hereof; THENCE with the center line ofCharco Blanco Road , N.23*07'W., 417.4 feet to the place of BEGINNING and containing within these metes and bounds 48.48 acres of land, more or less. IV. COURSE OF PROCEEDINGS On July 18, 2000, Plaintifif SERGIO ALANIZ, SR. attempted to file i uit against JESUS MARIA ALVAREZ by document entitled '^Motion to File a Complaint for Fn ud in Violation of iirt for the Eastern 2000, the Court the matter. See the Laws of the Unit^ States of America" in the United States District Co District of Texas, Texaikana Division. See Exhibit "B". On November 1 dismissed Plaintiffs Complaint finding that the Court lacked jurisdiction ov( r Exhibit "C\ 

### Thereafter, on December 18,2000, PlaintifTSERGIO ALANIZ, SR. agajin attempted to sue Defraidant, JESUS MARIA ALVAREZ byfiling a "Motion forRecovery ofDai aages andClaimof Fraud." See attachedExhibit "D". This "pleading" which consisted ofone [age and only three paragtayihs allegedonly fiaud as against Defendant, JESUS MARIA ALVAREZ Plaintiff, SERGIO ALANIZ, SR did not ask for, nor was citation isst led for his July 18, 2000federal courtfiling and forhis December 18,2000 statecourtfiling.

Intervenor's Motion for Summary Judgment Page 3 of 14 

## 0009

### r'

OnFebruaiy 15,2002, PlaintifTfiled an "Amended CivilComplaint forB reach ofFiduciary Duty and Fraud; Action In Rem regarding ForQr-Eight and 48/100 (48.48) ac es of land". See Exhibit "E". Theieafier, Plaintifif SERGIO ALANIZ, SR. requested servic; of citation and Defendant, JESUSMARIAALVAREZwas servedwithprocess ofFebruary25, 1002. 

## Defendant, JESUS MARIA ALVAREZ and ALVAREZ &ASSOC]{aTES filed their OriginalAnswer on March 28,2002. Tlierealter, on April 26, 2002, PlaintifiEs filed a "Permissive Joinder of have added to the lawsuit Plaintifis' children Suzie Alaniz, Sergio Alaniz, Jr., and ^ Finally, on January 8,2010, hitervenor/Movant filedher OriginalPetition V. DISMISSAL OF PLAINTIFFS* SUIT On April 11, 2007, this court on its own motion dismissed the claims 

## SERGIO ALANIZ, SR., MARIA GUADALUPE ALANIZ, SUZIE ALANIZ, s|eRGIO ALANIZ,
JR. AND ALONZO ALANIZ. See Exhibit "F'. VI. APPEAL An appeal was filed challenging this trial court's order of dismissal SERGIOALANIZ, SR. pursued the appeal and the remainingPlaintifiTs failedto "G" pg. 1. Ihe AppellateCourt rev»:sedthe trial court's order ofdismissaland as to Sergio Alaniz, Sr. only. See Exhibit "G" pt^es 5 & 6.

vn. CURRENT PARTIES Therefore, the only Plaintiffin this lawsuit is SERGIO ALANIZ, SR. Th i Defendant in this 

## lawsuitis JESUS MARIA ALVAREZD/B/A ALVAREZ & ASSOCIATES anjl the Intervenoris, ANA LISA GARZA, Movant herein. Intervenor's Motion for Summary Judgment Page 4 of14 'arties" seeking to Alonzo Alaniz. in Intervention.

of all Plaintiff

However, only

oso. See Exhibit remanded the case

### rvra. INTERVENTION Intervenor ANA LISA GARZA hasajusticiable interest in the matters in »ntioveisy in this litigation because she isdiel^al owner, under dufy executed deed, ofthereal pn peity wfaidi is the basis ofthis suit See Exhibit "A", 

### The real property which is the basis ofthis suit was conveyed to Inteifrenor ANA LISA GARZA, for consideration, after PlaintiiF voluntarily conveyed the same to MARIA ALVAREZ. IX. STATUTE OF UMTTATIONS The Plaintiff'currentpleading alleges breach offiduciary du^ and fiaud A cause ofaction for breach of fiduciary dnty has a four year statute o: Practice andRemedies Code, §16.004(a)(5). The cause of action for fiaud also hasa four year statute of limitations Remedies Code, §16.004(a)(4). 

### PlaintiflPs causes ofaction are barred by the statute oflimitations. PlaiAtiffcomplains that Defendant breached its fiduciary duty to Plaintiffand further committed fiaud brthe act of causing the deed referenced in his petition tobe signed infevor ofDefendant This deed complained ofwas signed by Plaintiffon February 5, 1998 and filed with the County Clerk on Febi uary 12,1998. See Exhibit "E",Plaintiff's Amended Complaintpages 10-11 andDeed attached as Exhibit "H". 

### A review ofthe fects stated above as well as the relevant dates cleirly reveal that the
Plaintiff' causes ofaction are set out on page 5 and 6 ofhis amended civil complaint cause ofaction "Action In Rem." This is not an independent cause ofaction, butthis tecl "...applied toactions between parties, where the direct object istoreach and dispose of pro] Intervenor's Motion for SummaryJudgment Page S of 14 Defendant JESUS

limitations. Civil

Civii Practice &

e lists as an additional Unical termis generally ip !ity owned by them..." 

## 0011

### r 

### t"-


### Plaintiflfs suit for fiaud and fiduciary duty were filed more than four years aftertle Deed was filed and thus his suitis barred bythe statute oflimitations. 

### Section 13.002 of the Texas Property Code states inrelevantpart that "Ar properly recorded in the proper county is: (I) notice to all persons ofthe exist^ce ofthe instrument..." See attached ExhibitT'. 

## The Plamtiffvoluntarily signed the Warranty Deed complained ofon F ebruary 5, 1998.^ 

## See Exhibit "E"

- Plaintiffs Amended Complaint page 11 and Exhibit "H"

- Warranty Deed. Therefore, according to the Property Code Section 13.002 and case law analjzing this section. Plaintiffwas placed on notice no laterthan February 12,1998 thathe had acause (.rcauses of action againstDefendant. Plaintiffsfailure to file his lawsuitwithin four years of the sti tute of limitations 

### bars his lawsuitfixrm poceeding as againstDefendantorany ofotherinterestedp rties.
X. 

### The pleadings on file in this lawsuit, as well as the court's docket shes tand the citation 

## issued to the Defendant, show that there is no issue as to any material fact an 1that Intervenor, ANA LISA GARZA is entitled tojudgment as amatter of law. Intwvenor AN \ LISA GARZA 

### fiirther supports her Motion for Summary Judgment on the undisputed evidem eoutlined herein 

## and sets forth therelevantcase law, which, as amatteroflaw, entitles hertojudpnent.
XI. 

### The following exhibits are attached hereto and made part of this motion; 1. Exhibit"A"-Deed; 

### 1. ExUbit "B"

- Motion to File aComplaint for Fraud in Violation (fthe Laws of the United States ofAmerica; instrument that is

•Haintiirappears to admit that the signature is his, but also states that he did not know that he 

### ^ajntm was] not mfonned thatawarranty deedwas being signed..." SeeFrftfbit "H" page was signing a deed. 1 [ Intervenor's Motion forSummaryJudgment Page 6 of 14 

## 0122. 3. 4.

5. 6. 7. 8. 9. 

### r 

### -rExhibit "C"

- Final Judgment; 

### Exhibit "D"

- Motion for Recovay of Damages and Claim of Fiaid; 

### Exhibit "E"

- Amended Qvil Complaint for Breach ofFiducial) uui Action In Rem regarding Forty-Eightand48/100 (48.48) acres of1 md; 

# Exhibit"F'

-Court'sMotionandOrderofDismissalforLackojprosecution; Exhibit "G"

— Memorandum Opinion; Exhibit "H"-Deed; 

### Exhibit'T'

- Texas Property Code §13.002; and Exhibit *T'

- Docket Sheet.

m Duty and Fraud;



## Movant believes that the Plaintiff's causes of action as against Defeidant are clearly barred by the statute of limitations as they were notfiled timely. However, and 

## should the Court beUeve that the Plaintiff's initial state court pleading filed 2000, constitutes atimely filing ofthe finud cause ofaction then Movant wouli 1 show this Court 

## thatPlaintifffailed to use due diligence in seeking to have the lawsuit served U] review of the attached Docket Sheet clearly indicates that the Plaintiffdid not 

## ofcitation for the December 18,2000 filing. It was not until his Amended Ci\il Complaint was filed, afterthe statute oflimitations had run, thatPlaintiffsought service upon E efendant.

in the alternative, <>n Decmber 18,

Ifon Defendant A

ever seek service


## As amatter oflaw, the Plaintiffdid not use due diligence in procuring issuance and 

## service ofcitation to Defendant JESUS MARIA ALVAREZ. A defendant who conclitsiveiy establishes aU the elements ofan afitanative deftnse is entitled to asummayjudgment as a matter oflaw. Cathevvs. Booih. 900S.W. 2d339,341 (Tex.1995).

Intervenor's Motion for SummaryJudgment Page 7 of 14 

## 0013

### T'

xm. LEGAL AirmOMTY 

### r

Plaintiffs delay in serving Defendant constitutes a lack of due diliger ce as a matter of law. gflit/ w. De Leon. 786 S.W. 2d 259, 260 (Tex.1990); Gonzalez vs. Phoenix Frozen Foods. Inc.. 884S.W.2d 587(TexApp.^orpus Chrisd 1994, no fvrit). The established rule is that the filing ofa suit will not toll the statute of limitations. Rieo Mfe. Co. vs. Thomas. 458 S.W. 2d 180,182 (Tex, 1970). To toll the statut; of limitations, a Plaintiffmustnotonlyfilesuitwithin the limitations period, but mustalsoexei cise due diligence 

### in procuring the issuance and service ofcitation. Gant w. De Leon. 786 S.0(. 2dat 260. The required standard of diligence is that diligence which an ordinary prudent p uson would have used under the same or similar circumstances. Gonzalez vs. Phoenix From \ Foods. Inc.. 884

Intervenor's Motion for Summary Judgment Page 8 of 14 S.W.2d at 590. The existence of diligence is generally a question of fact, bu ifthe time lapses and the Plaintiff's acts conclusively negate diligence, a lack ofdue diligence [will be found as a matteroflaw. Hansler vs. Mainka. 807S. W. 2d3,5 (Texuipp.'Corpus Chiisti, no writ). See also Taylor vs. Thompson. 4S. W. 3d 63 (Tex. App.

- Houston [l" DistJ 199ipet'n denied). Texas courts have routinely dismissed lawsuits for the failure of Pitintiff to diligently
serve Defendant For example, in Hansler vs. Mainka. 807 S.W. 2d 3 (Civ. App.

- Corpus ChrisH1991,no writhistory), the CourtofAppeals afBrmed a take nothingjudgmentin favorof Mainka after finding limitations barred Hansler's suit. Hansler filed suit ( n August 8, 1988 within the period oflimitations, however, Hansler did not issue a citation unti over five (5) months after filing the lawsuit. The court held that the delay 

### was, as amatter oflaw, not due diligence inprocuring issuance and the servic^ Hansler's suit was barred by the statute of limitations. 807 S. W. 2d at 5. Bentlev Laboratories.Inc.. 538S. W. 2d 857 (Civ. App. - San Antonio, 1976. February 1,1989, of five (5) months

ofcitation. Thus, See also AUen v. writ ref*d n. r. e.) 

## 0014

### •T' 

# (SixmollBbetwea,filingandsarvice); m s. w.2dSiSX^
.Wk», 1939, witr^d) (3 3/4months betweenfiiing and issuanceofcitation and on. issuance and service). Furthermore, in gnmam. v S7t S. IF. 2d 

# gonuunll'DUt„979.no^UsL). theunexplaineddelayinserviceofeitLoninexc«iof sh. months was as a matteroflaw. not due diUgence inptocuringthe issuatv* and service of citation. S73& V. 2d434(0,.App..HonoUmlld^DlsLi1975, mUroTdn.e.). 

# In addition, othermontrecent cases furtherdelineatewhatis asfduiHiiie : gee 

# rayfapap/»np.pm, 4 S. m 3d53, 55(To.App
.Honsnn.fl'DUOJL,pecDenied, 

# (AaSimingsummaiyjudgmeminftvorofDefendantwhemPlaintttrsfiledPetitionfourmonths beforestatuteranbutdidnothavetheDefendantserveduntUone(I)weekaftithestatuteran); ft-MdUe, ,. npen^n A fpr, 13S. W. 3d47, 49-50fr« J

- idnAnmio 1999, pet denied) (Afiamiing Summaty Judgment for Defendants on the btsis that Plaintiff 

# fidledtoshowduediligencedespitefilingsuiteleven(11)daysbeforethestanjetanbutdidnot senteDefendantsuntilthreeandone-half(3 2)weeksafterthestatutetan). J a matteroflaw. 

# duediligencewasnotusedbythePlaintiffinordertoeffectuateserviceonJefendant.JESUS
MARIAALVAREZ. 

# It is the responsibility ofthe party requesting service to ensure that service is properly Conetrpnion, Ipc., y,. tS4 S. W. 2d 151, 152 (rex.1994); 

# AtdUar te. m S.W.2d955(Ten.App.HonsU,n(l"DU,1995, noL. TheCourt! haveconsistentlyheldthatdelays inobtaining serviceconstitutes a lackofdiediUgenceas a l^mn^HneeioUee P.. v. ^rmoUnnne.,...
. 

# 3d420(re.App.Pt Word, 1995, ^denied, fflixmmtefa); HoneUrotlLZon.

Intervenor's Motion for SummaryJudgment Page 9 of 14 months between 448 (Civ. App,

-



### OiS

### T


### 2^,3 (TexApp.-€orpusChristi 1991, no writ), (Five months): Allen vs. Bentlev I^horatnrlpx. 538, S.W. 2d857(Tex.CivApp.-SttnAntonio, 1976, writrefdn.r.e.) (Sixnun tks). If this Court considers the December 18, 2000 pleading filed by December 18, 2000 as being filed within the statute of limitations, Movant 

### Court that Plaintifffailed to exercise due diligence inseeking service ofprocess 

### Areview ofthe attached Docket Sheet {Exhibit'T*) clearly shows that proces s was not sought until after February 15,2002, in factthe Docket Sheet reflects that the Defends ntwasnot served 

### with process until February 25, 2002. Hie initial state court complaint {Exhii it "D") was filed
on December 18, 2000. Thus, the record clearly reflects that Defendant was not served with 

### process until one year and two months after the initial state court pleading. Ansview ofthe cases 

### cited above clearly shows that one year and two months does not constitute lue diligence and 

### that therefore Plaintiffs cause ofaction, even under the initial state court pi© ding is barred by the statute oflimitations. The Plaintiffdidnotuse duediligence in serving Defendant JESUS My JUA ALVAREZ. Accordingly, Plaintiff's claims against Defendant JESUS MARIA ALVyJlEZ are barred pursuant to the foiu year statute of limitations. See Civil Practice am 16.004(a)(4). the Plaintiff on would show this on this pleading.

Remedies Code

XIV. CONCLUSION 

### The aforementioned and undisputed summary judgment evidence 

### Defendant, JESUS MARIA ALVAREZ is not liable to the Plaintiff SERGIO ALANIZ, SR. based onthe expiration of the statute oflimitations. Defendant JESUS MARl \ ALVAERZ and 

### Intervenor ANA LISA GARZA are entitled to asununaryjudgment as amatte roflaw since they

Intervenor's Motion for SummaryJudgment Page 10 of 14 demonstrates that



## 16r

have conclusively proved their aflfinnative defense. Parkolace Hosoihd vx. S. W. 2d508,509(Tex.1995).
XV. RELIEF REOIJRSTFn 

### Intervenortherefore requests that declaratoryjudgmentbe entered as folio 

## 1) That Defendant JESUS MARIA ALVAREZ, by virtue ofthe coi veyance made by PlaintiflFSERGIO ALANIZ, SR. to DefendantJESUS MARIA ALVAREZ, be d»lared as the sole 

## and lawful ownerofthe above-describedproperty and that aiq' and all clouds of itle created by the filing ofthe fiivolous lis pendens by Plaintiffs and subsequent deeds execute! by Plaintiflfe be removed; 

### 2) That the Plaintiffs causes ofaction as against Defendant and Int ^enor are barred by the statuteoflimitations. 

### 3) That Intervenor ANA LISA GARZA, by virtue ofsubsequent subject real property byDefendantJESUS MARIA ALVAREZ to Intervenor At 

### be declared as the sole and lawful ownerof the above-describedproperty and thai any and all olonds on title created by the filing of the fiivolous lis pendens by Plaintiffe, by subsequ art deeds byPlaintiffe, and byfiling ofthis lawsuit, beremoved. 

### WHEREFORE, PREMISES CONSIDERED, Intervenor and Mo'^ant ANA LISA 

### GARZA, prays that this motion be set for hearing, and that upon said hearinj, the court enter a final judgment that the Plaintiff take nodiing in this suit against Defendar t JESUS MARIA ALVAREZ, that Intervenor ANA LISA GARZA recover costs fiom >laintifr and that 

### IntervemorANA LISA GARZA obtain such other and further reliefas specific dabove and to iate of MUo. 909

Intervenor's Motion forSummaryJudgment Page }I of 14 vs:

xinveyance ofthe FA LISAGARZA,



## 0017

### •r

which she may be justly entitled. Respectfully Submitted, 

## ROERIG, OLIVEIRA & FlSHEkL.L.P. 10225 N. 10*^ Street McAUen, Texas 78504 Tel. (956) 393-6300 Fax (9561) 386-1625

__ Victor V. Vicinaiz Texas Bar No,: 20562300
CERTIFICATE OF SERVfrF. 

### I, the undersigned, hereby certify that on this 27^ day of August 2010 copy of the foregoing document has been forwarded to opposing counsel as folh >ws VIA CMRRRand RegularMaili Sergio Alaniz, Sr. ID No. 79825-079 GB Federal Prison Camp P.O. Box 26010 Beaumont, Texas 77720-6010 VIA REGULAR MAIL; J. M. Alvarez 501 N. Britton Ave. Rio GrandeCity, Texas 78582 VIA REGULAR MAIL: Ana Lisa Garza THE LAW FIRM OFANA LISA GARZA, P.L.L.C. 509 N. San Antonio Rio Grande City, Texas 78582 

# vl iJ i..
Victor V. Vicinaiz

Intervenor's Motion forSummaiyJudgment Page 12 of 14 i 1true and correct



## 0018

## jfonrti) Court of 9ppealsf ,•#*^111 'Antonio, tttr.xasf IMKIVIOKANDUM OPINION No. (I l-I2-005I7-( 'V SiTj'Jo ALANIS. Si . Appcllanl

V. Jesus Maria ALVARIC/. Aharc/ tt Associates, and Ana l.i.s.i (iar/a. Appellees From the 381stJudicial Disli iei ('mirt, StarrCounty, Texas Trial Court No. l)t'-00-328 The Honorable Federico Iliiiojosa. JudgePresiding Opinion by; Sandee Bryan Marion, Justice Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Patricia O. Alvarez, Justice Delivered and Filed: October 9,2013 REVERSED AND REMANDED 

### On December 18, 2000, appellant, Sergio Alanis, who was pro sc below and on appeal, 

### filed a "Motion for Recovery ofDamages and Claim ofFraud" ("motion for recovery") naming only Jesus Maria Alvarez as a "defendant." This "motion for recovery" raised no causes ofaction 

### orclaims for relief, but stated Alanis would file his complaint for fraud against the defendant for recovery ofreal property. On February 15, 2002, Alanis filed a "Civil Complaint for Breach of 

### Fiduciary Duty and Fraud; Action in Rem Regarding Forty-Eight and 48/100 (48.48) Acres of 

### EXHIBIT "B"04-12-00517-CV I.and" ("complaiiil") iiaining Jesus Maria Alvauv .iikI Alvarez & Associales as defendants 

### (collectively, "Alvare/."). In his complaint, Alanis alK.-j-i-d Alvarez, who had represented him in 

### various legal matters since 1991, (1) breached a lidm lary duty to him by unlawlully taking and 

### conveying Alanis's real property into the sole ownerslii|> t)fJesus Alvarez on hehruary 12, 1998, and (2) fraudulently concealed the conversion ofthe pmperty. Alanis asserted he did not heetnne 

### aware of the conveyance until December 1,1999. Alanis served Alvarez on hebruary 25, 2002.' On January 8,2010, appellee Ana Lisa Garza intervened asserting she was the current legal owner ofthe real property by virtue of a conveyance from Jesus Alvarez. 

### In .separate motions, Alvarez and Garza moved for summaryjudgment on the affirmative defense »d limilalion.s, arguing Alanis's suit was barred by the lour year slalute of linutatioiis 

### a|)plieahle In Ineaeli ofliduciary duty and fraud claims heeau.se the lieed ahoiil whieh Alanis complained was signed l>y Alanis on February 5,1998 and filed with the county eleik on hebiuary 12, lOOX, hut Alanis did not file his "complaint" until February 15, 2002. Alternatively, Alvarez 

### and (iar/.a argued that ifthe trial court accepted the December 18, 2000 "motion for recovery" as 

### timely initiating .suit, then Alanis's claims were still time-barred because Alanis failed to u,se due ililigenee by not obtaining service on Alvarez until February 25, 2002. Ihc trial court granted Garza's motion in aninterlocutory order and later granted both motions ina final judgment. DISCUSSION 

### Tlie standard for reviewing atraditional summaryjudgment iswhether the movant earned 

### its burden of showing there is no genuine issue of material fact andjudgment should be granted as a matter oflaw. KPMG Peat Manvick v. Harrison County Housing Finance Corp., 988 S.W.2d

' In 2007, the trial court dismissed Alanis's lawsuit for want ofprosecution. This court reversed the order and remanded for further proceedings. See Alanis v. Alvarez, No. 04-08-00221-CV, 2009 WL 962535 (Tex. App. San Antonio Apr. 8,2009, no pet.) (mem. op.). 2-(I I I .' (HI M / ( \' 

### 7-lf). 748 ( lex. 1999). When. ;i.s liciv. the defendant nuivc.s lor summary jiidymcul <iii iIkalHrmalive defense of limilalion.s, the nuivant bears liu" iniitlen to conclusively c.stabiisii ihat 

### defense. Id. Thus, the defendant must (I) conelusively pioN c when the cause ol action accrucil. 

### and (2) negate the discovery rule, if it appiiis and has been pl<-;uled or otherwise raised, by proving as amatter of law thatthere is no genuiiK' isMie ot material lai i.ibout when the plainlill diseoveicd,
or in the exercise ofreasonable dilip.fm e should have dra overcd the nature ol its injury, /r/., roUcr V. Kaufhum df linnitl Home Svs oj lex., hie. I WS.W Id 701. 7()-l (lex. App. Sail 

### Aiiliiiiiii .'(ill l. MM pel ). II llie iiinv.iiil e.slablishcs lli.it the .slaliile ol liiiiil.ilioii.s bais the aelion, the iionmovant must then adduce summary judgmeiii proofraising a fact issue in avoidance ot the statute oflimitations. KPMG Peat Manvick, 988 S W.2d at 748. 

### In his complaint, Alanis stated several limes that he did not become aware of the 

## conveyance until 1999, thus raising the application ol the discovery rule. Ifthe discovery rule 

## applies to defer or toll the running of the slalole of limitations, then Alanis timely filed his complaintand served Alvarez withinthe limitations period.^ However, in their summaryjudgment motions, neither Alvarez nor Garza attempted to negate the discovery rule. Therefore, they were not entitled to summary Judgment as amatter of law on their affirmative defense oflimitations. 

### Accordingly, we reverse the trial court'sjudgment and remand for further proceedings.

Sandee Bryan Marion, Justice

^See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) ("When aplaintiff files a petition within the limitations 

### period, but does not serve the defendant until after the statutory period has expired, the date ofservice relates back to the date offiling ifthe plaintiffexercised diligence ineffecting service.").

### M 

## jfourll) Court ofJlppealsf ^an ilntonio, ticxas JUDGMENT No. 01-I2-005I7-( V SiT(>i<) ALANIS, Si .
• AppclliiDl

V. Jesus Maria ALVAREZ, ami .Alvarez & Associates, Appellee-; 

### From the 381st Judicial District ( mirt, Starr County, Texas Trial Court No. I)t '-00-328 The Honorable Federico Iliiiojosa. Judge Presiding 

### BEFORE CHIEF JUSTICE STONE, JUS TK I MARION, AND JUSTICE ALVAREZ 

### In accordance with this court's opinitm of this date, the trial court's judgment is REVERSED and the cause REMANDED to the trial court for further proceedings. Because 

## appellant is indigent, costs are assessed against the party that incurred them. SIGNED October 9,2013. 

### Sandee Bryan M^on, JusticeMANDATE
THE STATE OF TEXAS TO THE 381ST JUDICIAL DISTRICT COURT OF STARR COUNTY, GREETINGS: Before our Court of Appeals for the Fourth District of Texas on October 9, 2013, the cause upon appeal to revise or reverse yourjudgment between Sergio Alanis, Sr., Appellant
V. Jesus Maria Alvarez, and Alvarez & Associates, Appellee 

# No. 04-12-00517-CVandTr. Ct. No, DC-00-32/^ was determined, and therein our said Court of Appea^^madeiits order in these words: In accordance with this court's opihiOn dfthis date, the trial court's 

## judgment is REVERSED and the cause REgiANDED to the trial courtfor further proceedings. Because appellant is indigent, costs are assessed against the party that incurred them. WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth District ofTexas, in this behalfand in all thingshave the orderdulyrecognized, obeyed, and executed. WITNESS the Hon. Catherine Stone, Chief Justice of the Court of Appeals for the Fourth District of Texas, with the seal of the Court affixed and the City ofSan Antonioon December 18,2013. KEITH E. HOTTLE, CLERK 

### X OF f r i i • Cynthia A. Martinez 

# 1 % /q, ^ Deputy Clerk, Ext. 3853 Jdc-00-328 piigj. 5 , o:37:00 AM Starr County

-District Clerk !i°y ^ierk Starr County, Texas

^ »v,« Yarithza Saenz CAUSE NO. DC-00-328 IN THE DISTRICT COURT SERGIO ALANIZ, SR. and § MARIA GUADALUPE ALANIZ, § fi PlaintiiBs 9 § §
vs. § § JESUS MARIA ALVAREZ and § ALVAREZ & ASSOCIATES, § § Defendants § § ANA LISA GARZA § § Intervenor § 381*'JUDICIAL DISTRICT

STARR COUNTY, TEXAS INTERVENOR'S SECOND MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, ANA LISA GARZA, Intervenor, in the above styled and numbered causeand herebyfiles this her SecondMotion for Summaiy Judgment againstPlaintifi^ SERGIO ALANIZ, SR., Qiereinafter referred to as "PlaintifPO, and in support ofthis Motion, Intervenor would show the Court the following: I. This Motion for Stunmaiy Judgment is requested against Plaintiff on the grounds that Plaintiffs claims as Intervenor are barred by the statute oflimitations.

n. Pursuant to Texas Rules of Civil Procedure 166a, Intervenor, ANA LISA GARZA, moves for a summary judgment because the uncontiadicted Summaiy Judgment evidence establi^es as a matter oflaw that the Plaintiffs claims against Intervenor ANA LISA GARZA 

### are barred by the statute oflimitations. EXHIBIT
Defendants' Motion for Summaiy Judgment Page 1 of 13m. FACTS Plaintiff premises his causes of action against Defendant JESUS MARIA ALVAREZ on alleged fraud and breach offiduciaiydutiesin relation to conv^ance of the subjectrealproperty by Plaintifif to Defendant JESUS MARIA ALVAREZ on February 5, 1998. Defendant JESUS MARIA ALVAREZ contendsthat suchconveyance wasmadeas partialpaymentfor legalfeespaid for Defendant JESUS MARIA ALVAREZ'S legal representation for PlaintiffSERGIO ALANIZ, SR.in connection with federal criminal charges brought againstfee same. Defendants JESUS MARIA ALVAREZ and ALVAREZ & ASSOCIATES filed an Answer and a counterclaim for declaratory judgment to remove Cloudon Titleto fee subjectreal propeily. Defendant JESUS MARIA ALVAREZ convoked the subject real property to Intervsior ANA LISA GARZA for consideration, by duly executed DeeddatedFebruary 5.1998 real DeedRecord of Starr County Texas Volume 599, Page 68. See Exhibit "A." Intervenor ANA LISA GARZA claimslegal ownership to the subjectrealproperty by virtue ofa deed conveying title ofthe sameto her. The subject real property is described as follows: THE SURFACE AND THE SURFACE ONLY in and to Forty-eight and 48/100 (48.48) acres of land, more or less, out of forming a part ofportion of the east half (W2) of Porcion No. Eighty-Three (83 Ancient Jurisdiction of Camargo, now situated in Starr County, Texas ,and being more particularly described by metes and bounds as follows; to-wit: BEGINNING at a point of the center line of Road, in the E/2 of the portion No.83,Camargo Jurisdiction, which is distant ,S. 26* 59' 07' E.,1340.57 feet from the intersection of the dividing line between W/2 and E/2 of the Porcion No.83,Camargo Jurisdiction with the center line ofCharco BlancoRoad, for S.W comer hereof; THENCE N.59* 52'E. 437.22 feet, to an iron rod, for bend in line; THENCE N. 09* 15' E., 853.54 feet, to an iron rod, for an Inner comer hereof; THENCE N.80*45'W., 208.7 feet, to an iron rod, for a comer hereof; THENCE N. 09*15'E.l 129.33 feet, to an iron rod, for an Inner comer hereof; THENCE N.80*45'W., 208.7 feet, to an iron rod, foe a comer hereof;
Defendants' Motion for Summary Judgment Page 2 of 13THENCE N.09* 15' E., 458.6 feet, to an iron rod, for N.W. comer hereof; THENCE 8.80*45' E., 838.9 feet, to an iron rod, for N.E comer hereof; THENCE 8.09*15'W., 1623.11 feet,to an iron rod, for an Inner comer hereof; THENCE8.80*45'E., 125.0 feet, to an ironrod, for the most EasterlyN.E comer hereof; THENCE8.09* 15'W, 752.3 feet, to an ironrod, for most Easterly 8.E comer hereof; THENCEN.80*45'W., 125.0feet,to an ironrod, for an Innercomer hereof; THENCE 8.09*15'W., 614.2 feet, to an iron rod, for Bend Line; THENCE8.59*52'W., 688.1 feet, to an iron rod, for S.Ecomer hereof; THENCE with the center line of Charco Blanco Road , N.23*07'W., 417.4 feet to the place of BEGINNING and containing within these metes and bounds 48.48 acres of land, more or less. IV. COURSE OF PROCEEDINGS On July 18, 2000, Plaintifr SERGIO ALANIZ, SR. attempted to file suit against JESUS MARIA ALVAREZ by document entitled "Motion to File a Complaint for Fraud in Violation of the Laws of the United States of America" in the United States District Comt for the Eastern District of Texas, Texaricana Division. See Exhibit "B". On November 9, 2000, the Court dismissed Plaintifi's Complaint fmding that the Court lacked jurisdiction over the matter. See Exhibit

### Thereafter, onDecember 18, 2000, PlaintiffSERGIO ALANIZ, SR. again attempted to sue Defendant, JESUS MARIA ALVAREZ byfiling a "Motion for Recovery ofDamages and Claim of 

### Fraud." See attached Exhibit "D". This "pleading" which consisted ofone page and only three paragr^hs alleged onlyfraudas againstDefendant, JESUS MARIA ALVAREZ. 

### Plaintiff, SERGIO ALANIZ, SR. did not ask for, nor was citation issued for his July 18, 2000 federal court filing andforhisDecember 18,2000 statecourt filing.
Defendants' Motion for Summaiy Judgment Page 3 of 13

### OnFebruary 15, 2002, Plaintifffiled an "Amended Civil Complaint fijrBreach of Fiduciary 

### Duty and Fraud; Action In Rem regarding Forty-Eight and 48/100 (48.48) acres ofland". See Exhibit *E
. Thereafter, Plaintifir SERGIO ALAMIZ, SR. requested service of citation anH 

### Defendant, JESUS MARIA ALVAREZ was served with process oiFebruary 25, 2002. Defendant, JESUS MARIA ALVAREZ and ALVAREZ & ASSOCIATES filed thenOriginal Answer onMarch28, 2002. 

### Thereafter, on April 26, 2002, Plaintifis filed a "Permissive Joinder of Parties" seeking to have added tothe lawsuitPlaintifife' children Suzie Alaniz, Sergio Alaniz, Jr., and Alonzo Alaniz. 

### Finally, on January 8, 2010, Intervenor Ana Lisa Garza filed her Original Petition in Intervention.
V. DISMISSAL OF PLAINTIFFS* SUIT On April 11, 2007, this court on its own motion dismissed the claims of all Plaintiflfe

- 

### SERGIO ALANIZ, SR., MARIA GUADALUPE ALANIZ, SUZIE ALANIZ, SERGIO ALANIZ, JR. AND ALONZO ALANIZ. See Exhibit "F'.
VI. APPEAL 

### An appeal was filed challenging this trial court's Order ofDismissal. Only SERGIO 

## ALANIZ, SR pursued the appeal and the remaining Plaintiffe foiled to do so. See Exhibit "G" pg. 1. The Appellate Court reversed file trial court's Order ofDismissal and remanded the case as to Sergio Alaniz, Sr. only. See Exhibit "G" pages 5&6.

Defendants' Motion forSummary Judgment Page 4 of 13VIL CURRENT PARTIES Therefore, the only Plaintiffin this lawsuit is SERGIO ALANIZ, SR. The Defendant in this lawsuit is JESUS MARIA ALVAREZ D/B/A ALVAREZ & ASSOCIATES and Intervenor, ANA LISA GAR2A's via her Petition in Intervention. vin. STATUTE OF LIMITATIONS 

### The Plaintiff* currentpleading allies breach of fiduciaty du^ and fraud.' A cause ofaction for breach offrduciaiy duty has a four year statute oflimitations. Civil PracticeandRemedies Code, § 16.004(a)(5). The cause ofaction for fraud also has a four year statute oflimitations. CivilPractice & RemediesCode, §16.004(aX4). Intervenor was a necessary par^ who should have been included in tire Original State 

### Action. PlainthTs causes ofaction are barred bythe statute oflimitations. Plaintiffcomplams that Defendant breached its fiduciary duty toPlaintifT and further committed fraud bythe act ofcausing the deed referenced in his petition to besigned infavor ofDefendant This deed complained ofwas 

### signed by Plaintiffon Febraary 5, 1998 and filed with the County Clerk onFebruary 12, 1998. See Exhibit "E",PlaintifTs Amended Complaintpages 10-11 andDeed attached asExhibit "H". A review of the facts stated above as well as the relevant dates clearly reveal that the 

### Plaintiffs suit for fraud and fiduciary duty were filed more than four years after the Deed was filed and thushis suitis barred by the statuteoflimitations.

PlaintiiTs' causes ofactioQ aresetout on page 5 and 6 ofhis amended civil complaint He lists asan additional cause ofaction "Action In Rem." This is not an independent cause ofaction, but this technical term is generally "...applied toactions between parties, where thedirect object istoreach and dispose ofproperty owned bythem..." Bla^^sIjwDictionaty,^''' Edition. Defendants' Motion for Summary Judgment Page 5 of 13

### Section 13.002 ofthe Texas Property Code stat^ in relevant partthat "An instrument [Deed Recorded December 12, 1998] that is properly recorded in the proper county is: (1) notice to all persons ofthe existence ofthe instrument..." SeeattachedExhibit "I". 

### The PlaintilTvoluntarily signed the Warranty Deed complained ofon Februaiy 5, 1998.^ 

## See Exhibit "E"

- Plaintiffs Amended Complaint page 11 and Exhibit "H"

- Wairanty Deed. Therefore, according to the Property Code Section 13.002 and case law analyzing this section, Plaintiffwas placed on notice no laterthanFebruary 12,1998 thathe had acause orcauses of action 

### against Defendants. Plaintiff's &ilure to file his lawsuit within four years ofthe statute of limitations bars his lawsuit fix>m proceeding asagainst Defendants.
IX. 

### Intervenor was not sued by the Plaintifftimely. Intervenor isRecord holder ofreal property indispute and a necessary party.
X. 

### The pleadings on file in this lawsuit, as well as the court's docket sheet and the citation 

### issued to the Defendant, Alvarez, Intervenor will show that there is no issue as to any material feet and she is entitled tojudgment as amatter of law. Intervenor further supports their Motion for Summary Judgment on the undisputed evidraice outlined herein and sets forth the relevant case law, which, as amatter of law, entitles her tojudgment.
XI. 

### The following exhibits are attached hereto and made part ofthis motion: 1. Exhibit "A"- Deed; (December 12, 1998)
signature Is his, but also states that hedid not know that he was signing a deed. Defendants' Motion forSummaryjudgment Page 6 of 13

### 2. Exhibit "B"

— Motion toFile a Complaint for Fraud in Violation ofthe Laws ofthe United States ofAmerica; (July 18,2000) 3. Exhibit "C"

- Final Judgment; 

### 4. Exhibit "D"

- Motion for Recovery of Damages and Claimof Fraud; (November 6 2000) 

### 5. Exhibit "E"

- Amended Civil Complaint for Breach ofFiduciary Duly and Fraud; Action In Rem regarding Forty-Eight and 48/100 (48.48) acres ofland; (February 18)2002) 

### 6. Exhibit F — Court's Motion and Orderof Dismissal for Lack ofProsecution; 7. Exhibit "G"

— Memorandum Opinion; 

### 8. Exhibit "H"

- Deed; (January 17,2007) 

### 9. Exhibit "I"- Texas Property Code §13.002; and 10. Exhibit "J" - Docket Sheet.

xn. 

## The Plaintiff's causes ofaction as against Intervenorand Defendant, Alvarez, are clearly 

## barredbythe statute oflimitations as they were notfiled timely. However, and in the alternative, should the Court believe that the Plaintiff's initial state court pleading filed on December 18, 2000, constitutes atimely filing of the fraud cause ofaction then Movant would show this Court 

## that Plaintifffailed to use due diligence in seeking to have the lawsuit served upon Defendant, Alvarez, Areview of the attached Docket Sheet clearly indicates that the Plaintiffdid not ever seek service of citation for the December 18, 2000 filing. It was not until his Amended Civil 

## Complaint was filed, after the statute oflimitations had run, that Plaintiffsought service upon Defendant, Alvarez. 

### As a matter oflaw, the Plaintiffdid not use due diligence in procuring issuance and 

## service ofcitation to Defendant JESUS MARIA ALVAREZ. Adefendant who conclusively Defendants' Motion for SummaiyJudgment Page 7 of 13establishes all the elements of an affinnative de&nse is entitled to a sununary judgment as a matter oflaw. Caikevvs. Booth. 900 &W. 2d339,341 (Tex.1995).
xni. LEGAL AUTHORITY 

### Plaintiffs delay in serving Defendant constitutes a lack ofdue diligence as a matter of law. Gant vs. De Leon. 786 S.W. 2d 259, 260 (Tex.1990); GonrjUez vs. Phoenix Frozen 

### Foods. Inc.. 884&W.2d 587 (Tex.App.-Corpus Chrlsti 1994, no writ). The established rule is thatthe filing of a suitwill nottoll the statute oflimitations. Rieo 

### Co. vs; Thomas. 458 S.W, 2d 180,182 (Tex. 1970). To toll the statute of limitations, a 

### Plaindifmust not only file suit within the limitations period, but must also exercise due diligence in procuring the issuance and service of citation. Gant vs. De Leon. 786 S.W. 2d at 260. The 

### requued standard ofdiligence is that diligence which an ordinary prudent person would have used underthe same or similarcircumstances. Gonzalez vs. Phoenix Frozen Foods. Inc.. 884 

### S.W.2d at590. The existence ofdiligence is generally a question offact, but ifthe time lapses and the Plaintiff's acts conclusively negate diligence, a lack ofdue diligence will be found as a 

### matter oflaw. Hansler vs. Mainka. 807& W. 2d3, 5 (TexApp.-Corpus Christi, no writ). See 

### also Taylor vs. Thompson. 4S. W. 3d63 (Tex. App.-Houstonfl"DistJ 1999, pet'n denied). Texas courts have routinely dismissed lawsuits for the failure ofPlaintiffto diligently 

### serve Defendant For example, in Hansler vs. Mainka. 807 S.W. 2d 3 (Civ. App.

- Corpus Christi 1991, no writhistory), the Court of Appeals affirmed atake nothingjudgment in fevor of Mainka after finding limitations barred Hansler's suit Hansler filed suit on August 8, 1988 

### virithin the period of limitations, however, Hansler did not issue acitation until February 1,1989, over five (5) months after filing the lawsuit The court held that the delay offive (5) months was, as amatter oflaw, not due diligence in procuring issuance and the service ofcitation. Thus, Defendants' Motion for SummaryJudgment Page 8 of 13Hansler's suit was barred by the statute of limitaticns. m S, W, 2d at 5. See also Aden v. 

### BentlevLaboratories, Inc., 538S. W. 2d857(Civ. App. -SanAntonio, 1976, writrefdn. r. e.) (Six months between filing and service); Buie v. Couch. 126 S. W. 2d 565 (Ov. App.

- Waco, 1939, writ r^d) (3 3/4 months between filing and issuance ofcitation and one months between 

## issuance and service). Furthermore, in Hamilton v. Goodson. 578 S. W. 2d 448 (Civ. App.

- Houston [1^Dist.J 1979, no writhist.), the unexplained delay in service ofcitation in excess of six months was as a matter oflaw, not due diligence in procuring the issuance and service of 

### citation. 578S, W. 2d434 (Civ. App.

-Houston [l4^DisL] 1975, writref*dtu r. &). In addition, other more recent cases further delineate what is not due diligence; See 

## Tayior vj. Thompson, 4S. W. 3d 63, 65 (Tex. App.

- Houston fl" DistJ 1999, pet Denied) (Affirming summaryjudgment in favor ofDefendant where Plaintiffs filed Petition four months 

## before statute ran but did not have the Defendant served until one (1) week after the statute ran); V. Tinsman &Hower. Inc.. 13 S. W. 3d47, 49-50 (Tex. App.

- San Antonio 

### 1999, pet denied) (Affirming Summary Judgment for Defendants on the basis that Plaintiff 

### foiled to show due diligence de^ite filing suit eleven (11) days before the statute ran but did not 

### serve Defendants until three and one-half(3 2) weeks after the statute ran). As amatter of law, due diligence was not used by the Plaintiffin order to effectuate service on Defendant, JESUS MARIA ALVAREZ. 

## It is the responsibility ofthe party requesting service to ensure that service is i^operly accomplished. Primate Construction, Inc.. vs. Silver. 884 S. W. 2d 151, 152 (Tex.1994); Aguilar vs. Stone, 901 S.W.2d 955 (TexApp.-Houston fl" DisLj 1995, no writ). The Courts have consistently held that delays in obtaining service constitutes a lack ofdue diligence as a matter oflaw. See InstrumentsSpecialties Co.. vj. Texas Employment Commhsion. 92J X. W Defendants' Motion forSummaryJudgment Page 9 of 132d 420 (Texu4pp.-Ft. Worth I996y writ denied) (Sixmonths); Hansler vs, Mainka, 807S,W.

, 3 (Tex.App,-Corpus Christi 1991, no writ), (Five monUts); Allen vs, Bentiev Laboratories. 

### 538, S.W. 2d857(Tex.Civ^pp,-San Antonio, 1976, writrefdn.r,e.) (Six months). 

### If this Court considers the December 18, 2000 pleading filed by the Plaintiff on December 18, 2000 as being filed within the statute of limitations, Movant would show this 

### Court that Plaintifffailed to exercise due diligence in seeking service of process on this pleading. Areview ofdie attached Docket Sheet {Exhibit "J^ clearly shows that process was not sought until after February 15,2002, infact the Docket Sheet reflects that Defendant, Alvarez was not 

### served with process until February 25, 2002. The initial state court complaint {Exhibit "D") was filed on December 18, 2000. Thus, the record clearly reflects that Defendant, Alvarez was not 

### served with process until one year and two months after the initial state court pleading. Areview ofthe cases cited above clearly shows that one year and two months does not constitute due 

### diligence and that therefore Plaintiffs cause of action, even under the initial state court pleading is barredby the statute oflimitations. 

### The Plaintiffdid not use due diligence in serving Defendant JESUS MARIA ALVAREZ. Accordingly, Plaintiffs claims against Defendant JESUS MARIA ALVAREZ are barred pursuant to the four year statute of limitations. See Civil Practice and Remedies Code 

### 16.004(a)(4). Since claims are barred against Defendant, Alvarez, claims against Intervenor are likewise barred.
XIV. CONCLUSION 

### The aforementioned and undisputed summary judgment evidence demonstrates that 

### Defendant, JESUS MARIA ALVAREZ is not liable to the Plaintiff SERGIO ALAMZ, SR.

Defendants' Motion for SummaryJudgment Page 10 of 13

### based on the expiration of the statute oflimitations and therefore PlamtiflPs cause ofaction, if any, against Intervenor is also beyond the statute oflimitations.
XV. RELIEF REOUESTRD 

### Intervenortherefore request thatDeclaiatoiy Judgmentbe entered as follows; 

### 1) ThatIntervenorANA LISA GARZA, by virtue ofthe conveyance maHpby Plaintiff SERGIO ALANIZ, SR. to DefendantJESUS MARIA ALVAREZ and demand forJESUS MARIA ALVAREZ to ANA LISA GARZA, be declared as the sole and lawful owner ofthe above

## described property and that any and all Clouds ofTitle created by the filing ofthe fiivolous Lis Pendens by Plaintiffand subsequent deeds executedby Plaintiffbe removed; 2) That the Plaintiff's causes ofaction as against Defendant and Intervenor are barred by the statute oflimitations. 

### 3) That Intervenor ANA LISA GARZA, by virtue ofsubsequent conveyance ofthe 

## subjectrealproperty by DefendantJESUS MARIA ALVAREZto IntervenorANA LISA GARZA, be declared as the sole and lawful owner ofthe above-described proper^ and that any and all 

## Clouds on ride created by the filing ofthefiivolous Lis Pendens byPlaintiff, by subsequent deeds executed by Plaintiff, and by filing of this lawsuit, be removed. 

## WHEREFORE, PREMISES CONSIDERED, Intervenorprays that this motion be set for 

## hearing, and that upon said hearing, the court enter afinal judgment that the Plaintifftake nothing inthis suit against Intervenor ANA LISA GARZA, thatrecover costs ftom Plaintiffand 

## that Intervenor obtain such other and further reliefas specified above and to which she may be jusdy entided.

Defendants' Motion forSummaryJudgment Page 11 of 13Respect&lly Submitted,

OXFORD & GONZALEZ Attorneys at Law 124 3.12*^ St. Edinbutg, Texas 78540 (956)383-5654 

### (956)38y0t

Ricardo Gonzalez State Bar No. 08131490 ATTORNEY FOR INTCRVENOR ANA LISA GARZA

CERTIFICATE OF SERVICE 

### I, Ricardo Gonzalez the undersigned, hereby certify that on this _day ofApril, 2015, atrue and correct copy ofthe foregoing document has been forwarded toopposing counsel as follows: VIACMRRRi Ion IS73 dOOl jLCtc Sergio Alaniz, Sr. ID No. 79825-079 GB Federal PrisonCamp P.O. Box 26010 Beaumont, Texas 77720-6010 Via Facsimile (9^6) 487-7521 Jesus Maria Alvarez Alvarez & Associates 501 N. Britton Ave Rio GrandeCity, Texas 78582 Telephone: (956) 487-4871

RICARDO

Defendants' Motion forSummary Judgment Page 12 of 13CAUSE NO; DC-00-328 

### SERGIO ALANIS, SR. ETAL § INTHE381^JUDIC PLAINTIFFS § § VS. § DISTRICT COURT OF § JESUS MARIA ALVAREZ ET AL § DEFENDANTS § § ANA LISA GARZA § INTERVENOR § STARR COUNTY, TEXAS PLAINTIFFS' RESPONSE TO INTERVENOR'S SECOND MOTION FOR SUMMARY JUDGMENT NOW COMES, SERGIO ALANIS, SR., MARIA GUADALUPE ALANIS, SUSIE ALANIS, SERGIO ALANIS, JR. and ALON2X> ALANIS, PlaintifTs ask this Honorable Court to deny Intervenor's Second Motion for Summary Judgment. 1. Plaintiffs are Sergio Alanis Sr., Maria Guadalupe Alanis, Susie Alanis, Sergio Alanis Jr., and Alonzo Alanis. 2. Defendants are Jesus Maria Alvarez, Ana Lisa Garza and Alvarez & Associates. 3. Intervenor is Ana Lisa Garza. 4. Plaintiffs sue Defendants for breach of fiduciary duty, fraud, damages exemplary/ punitive damages, and title to real property referred to in the other pleading herein, the description ofwhich is incorporated herein by reference and referred to herein as (the " property").
I. FACTS 1. Mr. Alanis and Mrs. Alanis purchased the property at issue in the underlying suit on or about May 25, 1988 described as Porcion No. Eighty-Three (83), containing 48 acres of real property with improvements, with an estimated value in excess of $400,000.00. The Plaintiffs placed all documents pertaining to the purchase of Porcion No. Eighty-Three (83) in 

## the core ofthe Defendant(s). EXHIBIT "D" Page 1 of 13 

# Rta, ^ oewci 

### OS 2015

### 2. On January 27, 1998, Mr. Alanis was arrested and charged with violation offederal 

### laws within The Southern District ofTexas; On January 30, 1998 the Defendant's entered their appearance as Mr. Alanis's attorneys ofrecord for his legal defense. 

### 3. On January 30, 1998, The Honorable Judge Peter Ornisby, in open court informed 

### attorney Alvarez that the US Government intended to seek forfeiture ofthe property at issue herein. See Exhibit "A " 

### 4. Mr. Alanis, continued in his efforts to contact Defendant Jesus M. Alvarez, but said Defendant made himself unavailable, on September 23, 1998 Mr. Alanis fired and/or dismissed the herein Defendant as his counsel ofrecord. 5. On or about February 06, 1998, Mrs. Alanis traveled to the law office of the 

### Defendants for receipt of the foregoing stated power of attorney, and at that time rather than receiving said document; Mrs. Alanis received a copy of an "Attorney-Client Contract of 

### Employment for Criminal Matters". Mrs. Alanis met with Mr. Alvarez and question the execution of said contract. According to Mrs. Alanis, Mr. Alvarez claimed that the contract was 

### needed in order to avoid the U.S. Government Seizure/Forfeiture ofthe ranch/property and that hehad nointention ofactually keeping the property at issue herein. The contract is false, because Mr. Alanis and Mr. Alvarez never made such an agreement; in fact the contract was never 

### presented to Mr. Alanis. It is further noted that the signature page ofthe contract is suspect, in that the pages are not numbered, and has only the date of execution signature line for "Mr. 

### Alvarez Attomey in charge", and a signature line for Sergio Alanis, client. See Exhibit-B pages 1-4 attached. 6. On February 13, 1998, Mrs. Alanis obtained a copy of thepower ofattomey executed by Mr. Alanis on February 05, 1998, from Defendants' office. Plaintiffs did not noticed until 

### December 01, 1999 that Defendant had removed the Notary-Public acknowledgment of Ms. Oliveira from the power of attomey, and substituted a Notary-Public acknowledgment dated 

### Febmary 13, 1998, of Ms. Nora F. Adams. Defendant's attached the signature page of the Warranty Deed tothe power ofattomey inthe order to obtain Mr. Alanis's signature, once it was

Page 2 of 13signedby Mr. Alanis, the Defendant's removed the signature page and fraudulently attachedit to the Warranty Deed.See Exhibit-C, pages 1-2 attached. 7. On or about June 01,1998, Plaintiffs' wereinformed ofa lawsuit which was pending against them by the State of Texas regarding property taxes owed from portion Eighty-Three (Cause No.97-2); said civil action was dismissed upon payment of said taxes. See Exhibit-D pages 1-2 attached. 8. On December 30, 1998, Mr. Alanis and Mrs. Alanis executed a Deed ofGift, giving, granting and conveying Pocion No. Eighty-Three (83) to theirlawful heirs: Susie Alanis, Sergio AlanisJr., and AlonzoAlanis. SeeExhibit-E, pages 1-3 attached. 9. On August 24, 1999, Starr County Chief Appraiser Mr. Humberto Saenz, Jr., notified the Plaintiffs that the foregoing description Deed of Gift could not be processed due to the fact that the property could not be located within the Starr County Tax files. See Exhibit-F, page 1 attached. 10. Subsequent to an investigation into the foregoing stated matter, into the foregoing stated matter, on or about December 01, 1999, Mrs. Alanis was informed that Mr. Alvarez had, on February 12, 1998, filed a Warranty Deed conveying Porcion No. Eighty-Three (83) to Mr. Alvarez said Warranty Deed has been Starr County Official Record No. 195297. Defendants in furtherance of their wrongful, illegal and criminal scheme substituted the Notary acknowledgment ofMs. Adams on the powerof attorney as a transparent cover-up in an attempt to explain that Mr. Alanis had intended to sign the document and alleged Warranty Deed on February 05, 1998 and the power of attorney February 12, 1998. See Exhibit-G, pages 1-3 attached 11. Consequently Mr, Alanis initiated the underlyingcivil suit on or about July 03, 2000 against the defendants via civil complaint, said cause of action was dismissed without prejudice on November 09,2000 for refilingin the DistrictCourt. See Exhibit-Hpage 1 attached. 12. On or aboutNovember 06,2000, Mr. Alanis filed a civil suit withinthe StarrCounty District Courtfor the State of Texas. In relation to the claims that during and after Mr. Alvarez Page 3 of 13representation ofMr. Alanis, Mr. Alvarez did unlawfiil procure property from the Plaintiffe by fraud and deceit. See Exhibit-Ipages 1-2 attached. 13. On April 26, 2002, Plaintiffs filed their Permissive Joinder ofParties. See Exhibit-J, pages 1-6 attached. 14. In furtherance of their wrongful and illegal scheme, the Defendants have allegedly caused the property to be conveyed pursuant to that certain second alleged deed, dated January 17, 2007, by and between Mr. Alvarez as grantor and Ms. Garza as grantee and recorded in the real property ofStarr County, Texas. 15. On or about April 26, 2007, Honorable Judge Jose Luis Garza, a memberofAlvarez & Associates, who knew or should have known that he represented a conflict ofinterest on this case, instead of recusing himselffrom this case. Judge Garza dismissed this case for lack of prosecution. 16. On or about July 26, 2011, Mr. Alanis filed his Affidavit which establishes the following facts: 17. The property was the marital community realproperty ofMr. Alanis and Mrs. Alanis until December 08,1998 when they conveyed the property to theirchildren, SusieAlanis, Sergio Alanis Jr., and Alonzo Alanis. See Exhibit-K, pages 1-2 attached. 18. Mr. Alanis filed his controvertingaffidavit and controvertingpleading to all the facts alleged by Defendants. Mr. Alanis raised controverting facts that include but not limited to a failure oflack ofconsideration, violation ofthe statute offi^uds, and actual finud. As a result of the above, the motions for summary judgment evidence to be entitled to the summaryjudgment
as there are material issues offacts to be decided. 19. On March 05, 2002, Plaintiffs filed their citation by personal service. See Exhibit-L pages 1-2 attached. 20. On July 23, 2012, Honorable Judge Federico G. Hinojosa granted both Motions for Summary Judgment in a final Judgment. Page 4 of 1321. On April 05,2013, Plaintiffs filed their Appellants Opening Brief. 22. On June 06, 2013, Appellee/Intervenor filed their Response To Plaintiffs Opening Brief. See Exhibit-N. 23. On October 09, 2013, Honorable Catherine Stone, Chief of Justice, Honorable Sandee Bryan Marion, Justice and Honorable Patricia O. Alvarez, Justice, Denied Defendant/Intervenor argument and Remanded this case to the lower court. See Exhibit-O IL LAW On July 23,2012, this Honorable Court granted Mr. Alvarez and Ms. Garza's Motion for Summaiy Judgment. Ms. Garza is now misleading this Honorable Court again, because she filed an identical Motion for Summary Judgment with the same arguments, facts, and case law the only difference is the title. Ms. Garza is an attorney at law and a District Judge, she knows that the law ofthe land is: When the Fourth Court of Appealsdenied her arguments, she then had the right to present her argument to the Supreme Court, but she choose not to, therefore this Honorable Court must deny Intervenor's Second Motion for Summary Judgment. See Exhibits "N" and Exhibits "O". Defendant/Intervenor, Ana Lisa Garza (Mrs. Alvarez) is/was an attorney at law and the

» wife ofMr. Alvarez, Ms. Garza, has been sued as one ofthe Alvarez & Associates, who was a party ofthis law suit when Plaintiffs served a Civil Complaint against Jesus Maria Alvarez & Alvarez & Associates. For over fifteen (15) years. Plaintiffs, have described the facts giving rise to their causes ofaction, including false concealmentand their discovery ofthe Defendantsdeceitful conduct on or about December 01, 1999. Pursuant to the discovery rule, the accrual date of Plaintiffs limitation period was deferred until December 01, 1999. The Plaintiffs have described the discovery of Defendants conduct in all documents filed with the lower court that called for a statement offacts including, but not limited to motion to file a complaint for fiaud in violation of the laws ofthe United States of America, July 18, 2000, Motion for Recovery of Damages and claim offiaud, December 18, 2000; Amended Civil Complaint for Breach ofFiduciary Duty and
Page 5 of 13Fraud, February 15, 2002; Plaintiffs First Supplemental Petition and Plaintiffs Response to Intervenor's First Amended Original Petition in Intervention, October 14, 2010, Plaintiffs 

### Response to Intervenor's Motion for Summary Judgment, September 30, 2011, and Plaintiffs 

### Response to Defendant's Motion for Summary Judgment, January 11, 2012. Plaintiffs at least eight (8) different trial court pleadings have described the discovery ofthe facts that give rise to their causes of action against Defendants pursuant to the discovery rule. Defendants have never denied, contradicted, or suggested another method that Plaintiffs first learned of Defendants deceit andfraudulently concealment. It is disingenuous forDefendants to nowsuggest otherwise. Defendants claims are not credible enlighten oftheir prior conduct.
III. SUBSTANCE OVER FORM The fundamental premise underlying the discovery rule is the substance over form doctrine created by the UnitedStates Supreme Court in Gregory V. Helvering, 293 U.S. 465, 55 5. Ct. 266, 79 L Ed. 596 (1925), Trans Capital LeasingAssocs. I990-II, LP.V. UnitedStates, 

### 2006 U.S. App. Lexis 16238 (5'*' Cir. Tex., March 31, 2007). The Fifth Circuit has also always looked to Substance Over Form in Doctrine determining a claim. Cefalv V. B.F. Goodrich Co., 

### 971F. 2d 1290 (5"' Cir. 1989).

IV. OUESTION OF FACT AND LAW DISCOVERING RULE The Plaintiffs' description of the facts includes the discovery rule as it pertains to the accrual of the Statute of limitations. Barker V. Eckman, 213 S.W. 3d 306, 311-12 (Tex. 2006); Quigley V. Bennett, 256 5. IF. 3d, 356, 360 (Tex. App.- San Antonio 2008. No pet.) For the discovery rule to apply. Plaintiffs' must prove the injury was inherently imdiscoverable and objectively verifiable. Via Net V. TIG Ins. Co; 211 S.fV. 3d 310, 313 (Tex. 2006); Wagner & Brown, Ltd. V. Norwood, 58 S.W. 3d 732, 734 (Tex. 2001); S.V. V. R.V. 933 S.W. 2d 1, 4-7 (Tex. 1996); Woods V. WilliamM. Mercer, Inc., 769S.W. 2d515, 518 (Tex. 1988).

Page 6 of 13V. INHERENTLY UNDISCOVERABLE An injury is inherently undiscoverable ifit is by nature, unlikely to be discovered within the prescribed limitations period. Via Net, 211 S. W 3d at 313; Wagner & Brown, 58 S.W 3d at 734-35; S.V. 933 S.W. 2d at 7; Computer Assocs. V Alta; Inc. 918 S.W. 2d 453, 456 (Tex. 1996); Willis V. Maverick, 760 S.W. 2d 642, 645 (Tex. 1988). Whether an injury is inherently undiscoverable is determined categorically-that is by examining whether the particular type of injury claim is generally discovered through the exercise ofreasonable diligence. Via Net, 211 S. W. 3d at 314, Wagner & Brown, 58 S. W. 3d at 734-35; HECIEpl. Co. V. Neel, 982 S. W. 2d 881, 886 (Tex. 1998); Kerlin V. Sauceda, 263 S.W. 3d 920,926-27 (Tex. 2008); Computer Assocs. 918 S.W. 2d at 455, 457-58. Plaintiffs' must demonstrate only that it was difficult to discover the injury; the Plaintiffdoes not need to prove that it was impossible. S. V. 933 S. W. 2d at 7.
VI. INJURIES INHERENTLY UNDISCOVERABLE It is difficult to create a list of injuries that can be characterized as inherently undiscoverable because many cases concem injuries too specific to be categorized, Nugent V. Pilgrim's Pride Corp; 30 S. W. 3d 562, 574 (Tex. App-Texarkana 2000, Pet. Denied) (Injuries caused by exposure to toxic pollutants blowing from D's feed Mill and overflowing from adjoining property during heavy rains were inherently undiscoverable); Matthiessen V. Schaefer, 27 S.W. 3d 25, 31 (Tex. App-San Antonio 2000, Pet. Denied) (Injury caused by purchase of property based on Seller's negligent misrepresentation that onlya few acres of land were located in a 100 year flood plain was inherently undiscoverable.)

vn. BREACH OF FIDUCIARY DUTY Injuries arising from the breach of a fiduciary duty are considered inherently undiscoverable. S.V, 933 at 8; Computer Assocs; 918 S. W. 2d at 456; Mass V. George, 71 S.W. 3d 904, 912 (Tex. App-Texarkana 2002, No Pet.). Generally a party who is owed a fiduciaiy duty

Page 7 of13is relieved ofthe responsibility ofthe diligent injury into the fiduciary's conduct. S. V. 933 S.W. 2d at 8.
VIII. OBJECTIBELY VERIFIABLE An Injury is objectively verifiable ifthe injuries existence and the Defendant's wrongful act on which liability is asserted are demonstrated by direct physical evidence, Hay V. Shell Oil Co; 986 S.W. 2d 772, 777 (Tex. App-Corpus Christi 1999, Pet, denied); Computer Assocs; 918 

### S.W. 2d 4575-58; S.V. 933 S.W. 2d 647, 652 Tex. App-Houston [14"' Dist] 1998, pet denied) (wrongful conduct and deprivation ofproperty were objectively verifiable upon receipt ofletter informing that certification she would receive would not carry University's seal; Oliver V. Rogers, 976 S. W. 2d 792, 802 (Tex. App-Houston [1^' Dist.] 1998, Pet denied) (Injury resulting from breach ofcontract was objectively verifiable by looking at D's contract with third party). The discovery rule defers a cause of actions accrual until Plaintiffs know of the facts giving rise to the claim. Barker V. Eckman 213 S. W. 3d 306. 311-12 (Tex. 2006); Quigley, 256 S.W. 3d at 360. When the non-movant interposes a suspension, such as the discovery rule, the movant must further negatethe discoveryrule by proving as a matteroflaw that there is no genuine issue of fact about when the movant discovered the nature ofthe injury. Zale Corp. V. Rosenbaum, 520S.W. 2d 889, 891(Tex. 1975); Burns V. Thomas, 786S.W. 2d 266, 267 (Tex. 1990); Delgado V. Burns, 656 S.W. 2d 428, 429 (Tex. 1983); Weaver V. Witt 561 S.W. 2d 792,794 (Tex. 1977); Morriss V. Enron Oil & Gas Company, 948 S.W. 858, 868 (Tex. App-San Antonio 1997). Defendants have not further negated the discovery rule and are not entitled to Summary Judgment. Fraudulent concealment defers an actions accrual period until Plaintiffs discover the deceitful conduct offacts giving rise to the cause ofaction. Kerling V. Saiceda, 263 S. W. 3d 920, 925 (Tex. 2008); Quigley V. Bennett, 256 S.W. 3d 356, 360 (Tex. App-San Antonio 2008, No Pet). Fraudulent concealment defers a cause of actions accrual because Defendants cannot be allowed to avoid liability for their actions by deceitfully concealing wrong doing until the Page 8 of 13

### limitatioDS period has run. S.V. V. R.V; 933 S.W. 2d1,6 (Tex. 1996); Quigley, 256 S.W. 3dat 360.
IX. ACTUAL KNOWLEDGE OF WRONG 

### For fraudulent concealment to apply Plaintiffs must prove (1) Alvarez had actual 

### knowledge ofthe wrong. (2) Alvarez concealed the wrong by making misrepresentation or by remaining silent when he had a duty to speak. (3) Alvarez had a fixed purpose to conceal the wrong and (4) Plaintiffs reasonably relied on the misrepresentation and/or silence of Alvarez. Shah V. Moss 67 S.W. 3d 836, 841 (Tex. 2001); Quigley, 256S.W, 3dat 360-361; Mass, 71 S.W. 

### 3dat 913; Mellon Serv. V. Touche Ross &Co., 17S.W. 3d432, 436 (Tex. App-Houston [l" D'lst] 2000, No Pet.); Arabian ShieldDev. Co. V. Hunt, 808 S. W. 2d577, 584 (Tex. App-Dallas 1991, 

### writ denied). Pleiintiffs must establish Alvarez had actual knowledge of the wrong committed, Earle V. Ratliff998S.W. 2d 882, 888 (Tex. 1999); Carroll V. Denton 157S.W. 2d 878, 879 (Tex. 1942); overruled on other grounds, Gaddis V/ Smith, 417 S.W. 2d 577 (Tex. 1967); Hay 986 S.W. 2d at 778. Plaintiffs must establish Alvarez had actual knowledge of the wrong committed. Earle 

### V. Ratliff998 S.W. 2d 882, 888 (Tex. 1999); Corral V. Denton, 157 S.W. 2d 878, 879 (Tex. 1942), overruled onothergrounds, Gaddis V. Smith, 417 S.W. 2d577 (Tex. 1967); Hay986 S. W. 2d at 778.
X. ACT OF CONCEALMENT Plaintiffs must establish Alvarez performed an act of concealment, Doughterty V. Gifford, 826S.W. 2d668. 675 (Tex. App-Texarkana 1992, No writ); Chandler V. Chandler, 991 S.W. 2d 367, 394 (Tex. App-El Faso 1999, Pet denied). The gist of fraudulent concealment is Alvarez active suppression of the truth; thus concealment is demonstrated by proof that Alvarez made a representation or remained silent when he hada duty to speak. Hay, 986 S. W. 2d at 778; SantannaNat. Gas Corp. V. Hamonoper Co., 954 S.W. 2d 885, 890 (Tex. App-Austin 1997, Pet denied).
Page 9 of 13XL MISREPRESENTATION A misrepresentation constitutes fraudulent concealment when it prevented Plaintiffs from discovering Alvarez's wrong. Kanon V. Methdoist Hosp., 9 S. W. 3d 365, 369 (Tex. App-Houston 

### [14"' Dist.J 1999, No Pet.), disapproved on other grounds; Ernst & Young, LLP. V. Pacific Mut. Life Ins. Co., 51 S.W. 3d 573 (Tex. 2001); Santanna Nat. Gas 954 S.W. 2d at 890-91; Cherry V. Victoria Equip. & Sup., 645 S. fV. 2d 781, 782 (Tex. 1983) (In deposition taken before limitations ran, owner of business made repeated assertions that his business had not been involved with oil well that injured P). The representation must have been intended to influence Plaintiffs. Ernst & Young, LL.P. V. Pacific Mut. Life Ins. Co., 51 S. W. 3d 573, 578 (Tex. 2001); 

### Texas Capital Sees., Inc. V. Sandefer, 58 S.fV. 3d760, 772 (Tex. App-Houston [l" Dist.] 2001, Pet denied.
XII. PURPOSEFUL CONCEALMENT To prove firaudulent concealment, the Plaintiffs must establish that Alvarez had a fixed 

### purpose to conceal the facts from Plaintiffs needed to discover that a cause of action had occurred. Di Grazia, 900 S. fV. 2d at 503. There must be evidence that Alvarez purposefully or intentionally concealed facts. Di Grazia, 900 S. W. 2d at 503. Purposeful concealment can be established by direct or circumstantial evidence showing that Alvarezknew the statements were false when they were made. Earle, 998 S. W. 2d at 888-89. The Summary Judgments did not and cannot question fact, questions of law and the various elements ofPlaintiffs claims including but not limited to: i) the discovery rule; a) inherently undiscoverable injury b) fiduciaiy duty ofJesus Maria Alvarez; c) breach ofAlvarez's fiduciary duty to Plaintiffs; d) the injury was objectively verifiable ii) the substance over form doctrine; iii) Alvarez's fraudulent concealment in obtaining the deed. Page 10 of 13

### a) the defendant had actual knowledge ofthe wrong committed b) the defendant performed the act ofconcealment 

### c) amisrepresentation constitutes fraudulent concealment by Alvarez 

### d) Alvarez had a fixed purpose to conceal the facts fixtm Plaintiffs needed to discover that a cause ofaction accrued; 

### e) Plaintiffs reasonably relied on Alvarez's misrepresentation and silence to their detriment. 

### The Second Motion for Summaiy Judgment prevented Plaintiffs from being able to introduce evidence and testimony toprove all ofthe necessary elements oftheir causes ofaction, 

### therefore, the Second Motion for Summary Judgment cannot claim that there are no questions of fact or law. Plaintiffs will only be able to introduce their evidence and testimony at trial. 

### Defendants are trying to prevent such evidence and testimony by seeking inappropriate Second Motion for Summary Judgment.
xni. rONSLUSION 

### The property belongs to Susie Alanis, Sergio Alanis, Jr., and Alonzo Alams and not to Jesus Maria Alvarez and/or Ana Lisa Garza.
PRAYER 

### For these reasons, Plaintiffs' ask this Honorable Court to deny Defendant/Intervenor's 

### Second Motion for Summary Judgment. Ifthis Honorable Court grants Intervenor's Second Motion for Summary Judgment, Plaintiffs' ask the court tooverrule Plaintiffs' objections so they will be presented for Appeal. Respectfully Submitted, By: Sergio Alanis, Sr. Pro Se Reg. No. 79825-079 Dorm #3 Mid Valley House 2520 S. Expressway 281 Edinburg, TX. 78542 Page 11 of 13^ Susie Alanis P.O. Box 2601 Roma, Texas 78584 

## {J^ Sergio i^anis, Jr. P.O. Box 2601 Roma, Texas 78584 

### htJofUA' Maria Guadalupe Alanis P.O. Box 2601 Roma, Texas 78584
Alom^ Als anis P.O. Box 2601 Roma, Texas 78584

CERTIFICATE OF SERVICE Onthedatelisted below, the undersigned deposited a copy of this Plaintiffs' Response to Intervenor's Second Motion for Summary Judgment postage prepaid, inthemail addressed to:
Oxford & Gonzalez 124 S. n'^Ave. Edinburg, TX. 78539 Jesus Maria Alvarez 501N. Britton Ave Rio Grande City, TX. 78582 

### tS/AAti

Page 12 of 13 Sergio /Hanis, Sr. Pro Se Reg. No. 79825-079 Dorm #3 Mid Valley House 2520 S. Expressway 281 Edinburg, TX 78542DOCUMENT DESCRIPTION #ofpages 01 Exhibit "A"-PFeliminaiy/ ExaminatioD andDetention Hearing 03 02 Exhibit "B"-Attomey-Client Contract ofEmployment forCriminal Matters 04 03 Exhibit "C"-Power ofAttorney 02 04 Exhibit "D"-Starr County TaxCollection Account Status 02 05 Exhibit "E"-Deed of Gift,StarrCounty Official Record #200841 03 06 Exhibit "F'-StarrCounty Appraisal District-Additional Information ofWarranty Deeds (Dated 08/24/99) 01 07 Exhibit "G"

- Warranty Deed, Starr County Official Record #195297 03 08 Exhibit "H"

- U.S. District Court, Eastern District of Texas, case No. 5:00cvl77; Final Judgement 01 09 Exhibit "F

- Motion forRecovery ofDamages andClaim ofFraud 02 10 Exhibit "J"

- Plaintiffs Permissive Joinder ofParties 06 11 Exhibit "K"

- Affidavit ofSergio Alanis, Sr. 02 12 Exhibit "L"

- Citation byPersonal Service 02 13 Exhibit "M"

- Final Judgement from Lower Court 02 14 Exhibit **N"-Appellee/Intervenor, Ana Lisa Garza as response to appellants opening brief...l4 15 Exhibit "O"

- Fourth Court ofAppeal Memorandum Opinion 05

Page 13 of 13io/ 

# ATjL4L^0t?l0CK,.p_^ll, SERGIOALANIS., SR. ' 5 20J5 402 N. Garcia St. Rio Grande City, Texas 78582 September 14,2015 Honorable Federico G. Hinojosa 381" District Court Starr County Courthouse 401 N. Britton Avenue Rio Grande City, Texas 78582 RE: Sergio Alanis, Sr., et. al vs. JesusMariaAlvarez et. al. Ana Lisa GarzaIntervenor, No. DC-00-328. In the 381" District Court, Starr County, Texas. Hon. Federico G. Hinojosa, Presiding. Dear Judge Hinojosa: First, This correspondence is notintended as an ex partecommunication withthe coiut, as thatwould beimproper andunethical. 1amforwarding a copyof this correspondence to opposing counsels as indicated below. Second, The message to be derived from this correspondence is quite simple. On July 23, 2012, This Honorable Court granted Mr. Alvarez and Intervenor's Ana Lisa Garza Motion For Summary Judgment. OnOctober 19,2013, The Fourth Court ofAppeals Reversed andRemanded the cause to the trial court. OnApril 22,2015 Intervenor filed a Second Motion for Summary Judgment OnMay 08,2015 thiscourtOrder Setting Submission datefor Intervenors Second Motion for Summary Judgment on June 22,2015 at 2:56P.M. On Jime 05,2015 the PlaintifiTs filed their Motion to extend time. On June 19,2015 This Court Granted Plaintiff's Motion and set this case for Submission On July 22,2015 at 9:00A.M. On July 09,2015 The PlaintifiTs filed their Response to Intervenor's Second Motion for Summary Judgment. In their response the PlaintifiTs asked this court to dismiss Intervenor's SecondMotion for Summary Judgment, becauseThe Intervenor filed the same Motion again the samearguments andcaselaw. The CourtofAppeals has already ruledon this Motion. I am asking this Honorable Court to dismiss Intervenor's Motion so we can proceed to trial. Ifthis Honorable Court does not rule on this case. I have no other altemative but to go to the Court ofAppeals with a mandamuspetitionseeking an order directing the court to act so this case can proceed to trial. 1 

### do not want to do this. However Iwill, ifnecessary. EXHIBIT "E" Page 1 of2

### Thanking you in advance for your attention to these matters, and Iremain.

ENCLOSURES

cc: File

SA/jl Office ofthe District Clerk 381®* District Court STARR COUNTY COURTHOUSE 401 N. Britton Avenue Rio Grande City, Texas 78582 Jesus Maria Alvarez Alvarez & Associates 501 N. Britton Avenue Rio Grande City, Texas 78582 Oxford & Gonzalez 124 S. 12'''Ave. Edinburg, Texas 78539 Sincerely, &mwr< oAIanis, Sr. SergioAlanis, Plaintiff Pro Se & Lead Counsel for PlaintifTsFiled: 10/21/20152:16:00 PM Eloy R. Garcia, District Clerk Starr County. Texas Angelica Reyes

SERGIO AlANIS, SR.« PlafnO/f VS» CAUSE NO. DC-D0-32B 

### § IN THE OtSTRICT COURT OF

JESUS MARIA ALVAREZ AND ALVAREZ & ASSOCIATES. Defendant?
ANA LISA GARZA, Inte/venor S s s § § I 

### .§

s § § STARR COUNTY, TEXAS

381ST JUDICIAL QlSTRfCT INTERLOCUTORY ORDER GRANTING 

### INTERVENOR'S SECOND MOTION FOR SUMMARY JUDGMENT 

### OnJuly 22,2015, the Second MotionftirSummaryJudgmeniofIntsivenor, AnaLisa 

### Gar^a, was submitted to the Court tor consideration. After neviemng the motion for 

### summary Judgment, Plalntrs response to the motion, and ail submitted evidence, the Court finds that fntervenor's Second Motion for Summary Judgment is meritorious and should be granted. 

### IT IS, therefore, ordered, adjudged AND DECREED thatintervenoT's Second Motion farSummary Judgment be end is hereby GRANTED, The Cieik ofthe Coun IsDRDERED to send copiesofthis Interlocutory orderto all parties and attomeys ofraoord. SIGNED on Octeber 21,2015.

SeniorJudge. Prselding by Aeetgnmenl 

### EXHIBIT