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 of counsel and files his Motion to Review Further Orders.

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IN THE TEXAS COURT OF APPEALS

FOURTH CIRCUIT

SERGIO ALANIS, SR. et al

APPELLANTS

vs.

JESUS MARIAALVAREZ 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 toReview 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.

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(4) OnJuly 23,2012TheTrial 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 22,2015Ms. Garza filed an identical Motion with thesame arguments, facts

and case law, the only difference isthat Ms, Garza changed the title now it isIntervenor'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 or about 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) Afurther appealable Interlocutory Order concerning the same subject matter; and(2) any

Interlocutory Order thatInterferes with orImpairs 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'sSecond Motion for

Summary Judgment and ignored the FourthCourtof Appeals Order issuedOctober09,2013.

Ms. Garza is an attorney at lawand a Starr County District Judge, sheknows thatthe law of the land is:

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When 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

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Sergio sAlams, Sr. Pro Sr. Pro Sei

and lead counsel

402 N. Garcia St.

Rio Grande City, Texas 78582

Maria Guadalupe Alams

P.O. Box 2601

Roma, Texas 78584
CERTIFICATE 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

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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

STARRCOUNTi

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 Plaintiff oi i the groimds that

Plaintiffs claimsare barred by the statuteoflimitations.

IL

Pursuant to Texas Rules ofCivil Procedure 166a, Intervenor ANA LIJ

fora summary judgment because the uncontradicted Summary Judgment evid ence 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

piainfiff premises his causes of action 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 declaratory judgment 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 of portion of the

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.,134 0.57 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 r hereof;

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

THENCES.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 Innercomer hejreof;

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 of one [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 forBreach of Fiduciary

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 servedwithprocessofFebruary25, 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 January8,2010, 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 AppellateCourtrev»: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

lawsuit is JESUS MARIA ALVAREZ D/B/A ALVAREZ &ASSOCIATES anjl the Intervenor is,

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 hasa justiciable interest in thematters in »ntioveisyin this

litigation because she isdiel^al owner, under dufy executed deed, ofthereal pn peity wfaidi isthe

basis ofthis suit See Exhibit "A",

The real property which isthe 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'current pleading alleges breach offiduciary du^ and fiaud

A cause of action for breach of fiduciary dnty has a four year statute o:

Practice andRemedies Code, §16.004(a)(5).

The cause of action forfiaud also hasa four yearstatute of limitations

Remedies Code,§16.004(a)(4).

PlaintiflPs causes ofaction are barred by the statute oflimitations. PlaiAtiff complains that

Defendant breached its fiduciary duty to Plaintiffand further committed fiaud brthe act ofcausing

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 Complaint pages 10-11 andDeed attached asExhibit "H".

A review of the fects stated above as well asthe relevant dates cleirly reveal that the

Plaintiff' causes ofaction are set out on page 5 and 6 ofhis amended civil complaint

cause of action "Action InRem." This is not an independent cause of action, butthis tecl

"...applied toactions between parties, where the direct object istoreach and dispose ofpro]

Intervenor's Motion for SummaryJudgment

Page S of 14

Defendant JESUS

limitations. Civil

Civii Practice &

e lists as an additional

Unical termis generally

ip !ityowned by them..."

0011
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Plaintiflfs suit for fiaud and fiduciary duty were filed more than four years aftertle Deed was filed

and thus his suit is barred bythe statute oflimitations.

Section 13.002 ofthe Texas Property Code states in relevant part that "Ar

properly recorded in the proper county is: (I) notice to all persons ofthe exist^ce ofthe

instrument..." See attached ExhibitT'.

The Plamtiff voluntarily signed the Warranty Deed complained of on February 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 that he had acause (.r causes ofaction

against Defendant. Plaintiffsfailure to file his lawsuit within four years ofthe sti tute oflimitations

bars his lawsuit fixrm poceeding as against Defendant or any ofother interested p rties.

X.

The pleadings on file in this lawsuit, as well as the court's docket shest and 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 to judgment as amatter oflaw. Intwvenor AN \ LISA GARZA

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

and sets forth the relevant case law, which, as amatter oflaw, entitles her to jud pnent.

XI.

The following exhibits are attached hereto and made part ofthis motion;

1. Exhibit"A"-Deed;

1. ExUbit "B" - Motion to File aComplaint for Fraud in Violation (fthe Laws ofthe

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 that awarranty deed was being signed..." SeeFrftfbit "H" page was signing a deed.

1 [

Intervenor's Motion forSummaryJudgment

Page 6 of 14

012
2.

3.

4.

5.

6.

7.

8.

9.

r -rExhibit "C"- Final Judgment;

Exhibit "D" - Motion for Recovay ofDamages and Claim ofFia id;

Exhibit "E" - Amended Qvil Complaint for Breach of Fiducial) uui

Action In Rem regarding Forty-Eight and 48/100 (48.48) acres of1md;

Exhibit "F'-Court's Motion and Order ofDismissal for Lack ojprosecution;

Exhibit "G"—Memorandum Opinion;

Exhibit "H"-Deed;

Exhibit'T'- Texas PropertyCode §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 oflimitations as they were not filed 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 1show this Court

that Plaintifffailed to use due diligence in seeking to have the lawsuit served U]

review ofthe attached Docket Sheet clearly indicates that the Plaintiff did not

of citation for the December 18,2000 filing. It was not until his Amended Ci\ il Complaint was

filed, afterthe statute oflimitations had run, that Plaintiffsoughtservice upon Eefendant.

in the alternative,

<>n Decmber 18,

Ifon Defendant A

ever seek service

As amatter of law, the Plaintiff did not use due diligence in procuring issuance and

service of citation to Defendant JESUS MARIA ALVAREZ. Adefendant who conclitsiveiy

establishes aU the elements of an afitanative deftnse is entitled to asumma yjudgment 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 of a 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 of due diligence [will be found as a

matter oflaw. 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"DistJ199ipet'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 CourtofAppealsafBrmed a take nothingjudgmentin favor of

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'

(Six mollB betwea, filing and sarvice); ms. w. 2dSiSX^ .Wk»,

1939, witr^d) (3 3/4 months between fiiing and issuance of citation and on.

issuance and service). Furthermore, in gnmam. v S7t S. IF. 2d

gonuun ll'DUt„979. no ^UsL). the unexplained delay in service ofeitLon in exc«i of

sh. months was as amatter oflaw. not due diUgence in ptocuring the issuatv* and service of

citation. S73& V. 2d434(0,.App..HonoUmlld^DlsLi1975, mUroTdn.e.).

In addition, other mont recent cases further delineate what is asf dui Hiiie : gee rayfapap/»np.pm, 4S. m3d 53, 55 (To. App .Honsnn.fl' DUOJL, pec Denied, (AaSiming summaiy judgmem in ftvor ofDefendant whem Plaintttrs filed Petition four months

before statute ran but did not have the Defendant served untU one (I) week aftithe statute ran);

ft-MdUe, ,. npen^n A fpr, 13 S. W. 3d 47, 49-50 fr« J -idn Anmio

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

fidled to show due diligence despite filing suit eleven (11) days before the stanje tan but did not

sente Defendants until three and one-half(3 2) weeks after the statute tan). J amatter oflaw. due diligence was not used by the Plaintiffin order to effectuate service on Jefendant. 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. mS.W.2d 955 (Ten.App.HonsU,n (l"DU,1995, no L.The Court!

have consistently held that delays in obtaining service constitutes alack of die diUgence as a

l^mn^HneeioUee P.. v. ^rmoUnnne.,... .

3d420(re.App.Pt Word, 1995, ^denied, fflixmmtefa); HoneUr otlLZon.

Intervenor's Motion for SummaryJudgment

Page 9 of 14

months between

448 (Civ. App, -

OiS
T

2^,3 (TexApp.-€orpusChristi1991, no writ), (Five months): Allen vs. Bent lev 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 ntwasnotserved

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 JUAALVAREZ.

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 thestatute of limitations. Defendant JESUS MARl \ ALVAERZ and

Intervenor ANA LISA GARZA are entitled to a sununary judgment as amatte roflaw since they

Intervenor's Motion for SummaryJudgment

Page 10 of 14

demonstrates that

16
r

have conclusively proved their aflfinnative defense. Parkolace Hosoihd vx.

S. W. 2d508,509(Tex.1995).

XV.

RELIEF REOIJRSTFn

Intervenortherefore requests that declaratoryjudgment be 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 owner ofthe above-described property and that aiq' and all clouds of itle created by the

filing of the 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 asthe sole and lawful owner ofthe above-described property and thai any and all olonds

on title created by the filing ofthe 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

Intervemor ANA LISA GARZA obtain such other and further relief as specific dabove and to

iate ofMUo. 909

Intervenor's Motion forSummaryJudgment

Page }I of 14

vs:

xinveyance of the

FA LISAGARZA,

0017
•r

which she may bejustly entitled.

Respectfully Submitted,

ROERIG, OLIVEIRA &FlSHEk L.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 ofAugust 2010

copy ofthe 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

RioGrande City, Texas78582

vl iJ i..

Victor V. Vicinaiz

Intervenor's Motion forSummaiyJudgment

Page 12 of 14

i1true 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

or claims 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 ofthe 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

of the real property by virtue of a conveyance from Jesus Alvarez.

In .separate motions, Alvarez and Garza moved for summary judgment on the affirmative

defense »d limilalion.s, arguing Alanis's suit was barred by the lour year slalute of linutatioiis

a|)plieahle In Ineaeli of liduciary 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 a traditional summary judgment iswhether the movant earned

its burden ofshowing there is no genuine issue ofmaterial fact and judgmentshould be granted as

a matter of law. 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, ifit appiiis and has been pl<-;uled or otherwise raised, by proving

as amatter oflaw that there 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 proof raising a fact issue in avoidance ot the

statuteoflimitations. 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. If the discovery rule

applies to defer or toll the running of the slalole of limitations, then Alanis timely filed his

complaint and served Alvarez within the limitations period.^ However, in theirsummary judgment

motions, neither Alvarez nor Garza attempted to negate the discovery rule. Therefore, they were

not entitled to summary Judgment as a matter 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 a plaintiff 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, Justice
MANDATE

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-CV and Tr. Ct. No, DC-00-32/^

was determined, and therein our said Court ofAppea^^madeiits order in these words:

In accordance with this court's opihiOn df this 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 of Texas, 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 of San Antonioon December 18,2013.

KEITH E. HOTTLE, CLERK

X OF

f r i i • Cynthia A. Martinez

% /q, ^ Deputy Clerk, Ext. 3853 1J
dc-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

SERGIO ALANIZ, SR. and § IN THE DISTRICT COURT

MARIA GUADALUPE ALANIZ, §

fi

PlaintiiBs

9

§

§

vs. §

§

JESUS MARIA ALVAREZ and §

ALVAREZ & ASSOCIATES, §

§

Defendants §

§

ANA LISA GARZA §

§

Intervenor §

381*'JUDICIAL DISTRICT

STARRCOUNTY, 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 showthe 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 13
m.

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 StarrCounty Texas Volume 599, Page 68. See Exhibit "A." Intervenor ANA LISA GARZA

claimslegal ownership to the subjectreal property 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 of portion 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 13
THENCE 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., 125.0feet, 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 tosue

Defendant, JESUS MARIA ALVAREZ byfiling a "Motion for Recovery ofDamages and Claim of

Fraud." See attached Exhibit "D". This "pleading" which consisted of one 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 hisJuly 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 fijr Breach ofFiduciary

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 ofParties" seeking to

have added tothe lawsuit Plaintifife' 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 of Dismissal. 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 13
VIL

CURRENT PARTIES

Therefore, the only Plaintiffin thislawsuit is SERGIO ALANIZ, SR. TheDefendant in this

lawsuit isJESUS MARIA ALVAREZ D/B/A ALVAREZ & ASSOCIATES and Intervenor, ANA

LISA GAR2A's via her Petition in Intervention.

vin.

STATUTE OF LIMITATIONS

The Plaintiff* current pleading allies breach offiduciaty du^ and fraud.'

A cause of action for breach offrduciaiy duty has a four year statute oflimitations. Civil

PracticeandRemedies Code, §16.004(a)(5).

The cause of action for fraud also has a four yearstatute oflimitations. CivilPractice &

RemediesCode, §16.004(aX4).

Intervenor was a necessary par^ who should have been included in tire Original State

Action. PlainthTs causes of action are barred bythe statute oflimitations. Plaintiffcomplams that

Defendant breached its fiduciary duty toPlaintifTand 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

Plaintiffssuit 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 of actioQ aresetout on page 5 and 6 of his amended civil complaint He lists asan additional

cause of action "Action InRem." This is not an independent cause of action, 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 part that "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 PlaintilT voluntarily signed the Warranty Deed complained of on 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 later than February 12,1998 that he had acause or causes ofaction

against Defendants. Plaintiff's &ilure to file his lawsuit within four years of the 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 to judgment as amatter oflaw. Intervenor further supports their Motion

for Summary Judgment on the undisputed evidraice outlined herein and sets forth the relevant

case law, which, as amatter oflaw, entitles her to judgment.

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 forSummary judgment

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 ofDamages and ClaimofFraud; (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 Order ofDismissal for Lack ofProsecution;

7. Exhibit "G"—Memorandum Opinion;

8. Exhibit "H"- Deed; (January 17,2007)

9. Exhibit "I"- Texas PropertyCode §13.002; and

10. Exhibit "J" - Docket Sheet.

xn.

The Plaintiff's causes of action as against Intervenor and Defendant, Alvarez, are clearly

barred by the statute oflimitations as they were not filed 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 ofthe fraud cause ofaction then Movant would show this Court

that Plaintiff failed to use due diligence in seeking to have the lawsuit served upon Defendant,

Alvarez, Areview ofthe attached Docket Sheet clearly indicates that the Plaintiff did not ever

seek service ofcitation 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 Plaintiff did not use due diligence in procuring issuance and

service of citation to Defendant JESUS MARIA ALVAREZ. Adefendant who conclusively

Defendants' Motion for SummaiyJudgment

Page 7 of 13
establishes 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 of due 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 Chrlsti1994, no writ).

The established rule is thatthe filing of a suitwill not toll the statute of limitations. 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 of diligence isthat 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.-Houston fl"DistJ1999, pet'n denied).

Texas courts have routinely dismissed lawsuits for the failure ofPlaintiff to diligently

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

Christi1991, no writ history), the Court ofAppeals affirmed atake nothingjudgment in fevor of

Mainka after finding limitations barred Hansler's suit Hansler filed suit on August 8, 1988

virithin the period oflimitations, 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 13
Hansler'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 writ hist.), the unexplained delay in service of citation 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 summary judgment 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 oflaw,

due diligence was not used by the Plaintiffin order to effectuate service on Defendant, JESUS

MARIA ALVAREZ.

It is the responsibility of the 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 of due diligence as a

matter of law. See InstrumentsSpecialties Co.. vj. Texas Employment Commhsion. 92J X. W

Defendants' Motion forSummary Judgment

Page 9 of 13
2d 420 (Texu4pp.-Ft. Worth I996y writ denied) (Sixmonths); Hansler vs,Mainka, 807S,W.

, 3 (Tex.App,-Corpus Christi1991, no writ), (Five monUts); Allen vs, BentievLaboratories.

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 ofprocess 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

of the cases cited above clearly shows that one year and two months does not constitute due

diligence and that therefore Plaintiffs cause ofaction, 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 ofthe statute of limitations and therefore PlamtiflPs cause ofaction, if

any, against Intervenor is also beyond the statute oflimitations.

XV.

RELIEF REOUESTRD

Intervenor therefore request that Declaiatoiy Judgment be entered as follows;

1) That Intervenor ANA LISA GARZA, by virtue ofthe conveyance maHp by 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 abovedescribed property and that any and all Clouds of Title created by the filing of the fiivolous Lis

Pendens by Plaintiffand subsequent deeds executed by 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 of subsequent conveyance of the

subject real property by DefendantJESUS MARIA ALVAREZ to Intervenor ANA LISA GARZA,

be declared as the sole and lawful owner of the above-described proper^ and that any and all

Clouds on ride created by the filing ofthe fiivolous Lis Pendens by Plaintiff, by subsequent deeds

executed by Plaintiff, and by filing ofthis lawsuit, be removed.

WHEREFORE, PREMISES CONSIDERED, Intervenor prays that this motion be set for

hearing, and that upon said hearing, the court enter a final judgment that the Plaintiff take

nothing in this suit against Intervenor ANA LISA GARZA, that recover costs ftom Plaintiff and

that Intervenor obtain such other and further relief as specified above and to which she may be

jusdy entided.

Defendants' Motion forSummaryJudgment

Page 11 of 13
Respect&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, a true 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 13
CAUSE 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 of federal

laws within The Southern District ofTexas; On January 30, 1998 the Defendant's entered their

appearance as Mr. Alanis's attorneys ofrecord for hislegal 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 of the 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 of actually keeping the property at issue herein. The contract isfalse, because

Mr. Alanis and Mr. Alvarez never made such an agreement; in fact the contract was never

presented to Mr. Alanis. It isfurther noted that the signature page of the contract issuspect, 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-Bpages

1-4 attached.

6. On February 13, 1998, Mrs. Alanis obtained a copy of thepower of attomey 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 of attomey inthe order to obtain Mr. Alanis's signature, once it was

Page 2 of 13
signedby Mr. Alanis,the Defendant'sremoved 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 StarrCounty 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 of Ms. 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. SeeExhibit-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 13
representation of Mr. 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 of Parties. 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 of Starr County, Texas.

15. On or about April 26, 2007, Honorable Judge Jose LuisGarza, 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 themarital community real property ofMr.Alanis and Mrs. Alanis

until December 08,1998 when theyconveyed 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 of consideration, 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 13
21. 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 ofAppealsdenied 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 of Mr. Alvarez, Ms. Garza, has been sued as one of the Alvarez & Associates, who was a

party of this 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 13
Fraud, 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 thediscovery of the 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 for Defendants 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. 2d1290 (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 13
V.

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; ComputerAssocs. V Alta;Inc. 918S.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 of reasonable 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 wasimpossible. S. V. 933S. 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 fewacres 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 of13
is 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 of property 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 of contract 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 of the 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 67S.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 Shield Dev. 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. 2d882, 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 onother grounds, 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, 986S. W. 2d at 778;

SantannaNat. Gas Corp. V. Hamonoper Co., 954S.W. 2d 885, 890 (Tex. App-Austin 1997, Pet

denied).

Page 9 of 13
XL

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. 3d 760, 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) thedefendant performed the act of concealment

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^ Alsanis

P.O. Box 2601

Roma, Texas 78584

CERTIFICATE OF SERVICE

Onthedatelisted below, the undersigned deposited a copy of thisPlaintiffs' 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 78542
DOCUMENT DESCRIPTION #of pages

01 Exhibit "A"-PFeliminaiy/ ExaminatioD andDetention Hearing 03

02 Exhibit "B"-Attomey-ClientContract of Employment forCriminal Matters 04

03 Exhibit "C"-Power ofAttorney 02

04 Exhibit "D"-StarrCounty TaxCollection Account Status 02

05 Exhibit "E"-Deed of Gift,StarrCounty Official Record #200841 03

06 Exhibit "F'-StarrCounty Appraisal District-Additional Information of Warranty 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 of Damages andClaim of Fraud 02

10 Exhibit "J" - Plaintiffs Permissive Joinder ofParties 06

11 Exhibit "K"- Affidavit of Sergio Alanis, Sr. 02

12 Exhibit "L" - Citation byPersonal Service 02

13 Exhibit "M"- FinalJudgement from Lower Court 02

14 Exhibit **N"-Appellee/Intervenor, Ana Lisa Garza asresponse toappellants opening brief...l4

15 Exhibit "O"- Fourth Court of Appeal Memorandum Opinion 05

Page 13 of 13
io/ ATjL4L^0t?l0CK,.p_^ll,

SERGIO ALANIS., 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 be improper andunethical. 1amforwarding a copyof this correspondence to opposing

counsels as indicated below.

Second, Themessage 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 dateforIntervenors Second Motion

for Summary Judgment on June 22,2015 at 2:56P.M.

On Jime 05,2015 the PlaintifiTsfiled 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 andcase law. The CourtofAppeals has already ruledon thisMotion. 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 of 2
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<

SergioAlanis, oAIanis, Sr.

Plaintiff Pro Se

& Lead Counsel for PlaintifTs
Filed: 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

381STJUDICIAL QlSTRfCT

INTERLOCUTORY ORDER GRANTING

INTERVENOR'S SECOND MOTION FOR SUMMARY JUDGMENT

On July 22,2015,theSecond Motion ftirSummaryJudgmeniofIntsivenor, Ana Lisa

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 that intervenoT's

Second Motion farSummary Judgment be end is hereby GRANTED,

TheCieik ofthe Coun IsDRDERED to send copiesofthisInterlocutory orderto all

parties and attomeys of raoord.

SIGNED on Octeber 21,2015.

SeniorJudge. Prselding by Aeetgnmenl

EXHIBIT