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CAUSE NUMBER 04-14-667-CV

 _____________________________ 

 RAMIRO AND EDNA RAMOS AND 

 FEDERICO SALAZAR, JR., APPELLANTS 

 v.

THE UNKNOWN HEIRS OF 

TOMASA GONZALEZ AND 

NARCISO GONZALEZ, APPELLEES 

 ______________________________ 

IN THE FOURTH COURT OF APPEALS 

SAN ANTONIO TEXAS 

_____________________________ 

 ON APPEAL FROM THE 

 381st JUDICIAL DISTRICT COURT 

 TRIAL CAUSE NO. DC-09-559 

 HON. J. MANUEL BANALES, 

 PRESIDING JUDGE 

 ____________________________ 

 THE APPELLEES‟ REPLY BRIEF 

 TO THE APPELLANTS‟ REPLY BRIEF

 ____________________________ 

 JOHN A. OLSON 

 Tex. Bar No. 15274750 

 20634 Creek River

 San Antonio TX 78259-2084 

 210-307-0336 Office

 210-402-3924 Fax 

 jaolson_ccda@yahoo.com 

 The Appellees‟ Co-Counsel 

ORAL ARGUMENT REQUESTED 

ACCEPTED

04-14-00667-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

8/19/2015 10:48:29 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 08/19/2015 10:48:29 AM KEITH E. HOTTLE Clerk
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TABLE OF CONTENTS

PAGE(S)

INDEX OF AUTHORITIES ...................................................... i –

THE APPELLEES‟ REPLY TO

THE APPELLANTS‟ FIRST REPLY ............................................ 2 - 9

THE APPELLEES‟ REPLY TO

THE APPELLANTS‟ SECOND REPLY ....................................... 9 - 12

THE APPELLEES‟ REPLIES TO THE

APPELLANTS‟ THIRD AND FOURTH REPLIES ......................... 12 - 13

PRAYER ............................................................................ 14

CERTIFICATE OF SERVICE ................................................... 14

CERTIFICATE OF COMPLIANCE ........................................... 15

INDEX OF AUTHORITIES

CASES

Bailey-Mason v. Mason, 

334 S.W.3d 39 (Tex. App. -- Dallas 2008, writ denied) ............. 3 

Bush v. Gaffney, 84 S.W.2d 759,

(Tex. App. -- San Antonio 1935, no writ) ............................... 2

Casso v. Fullerton, 

App. Cause No. 04-05-00905-CV,

(Tex. App. – San Antonio 2006, writ denied) ..............................10, 11

Dunn v. Dunn, 177 S.W.3d 393,

(Tex. App. – Hous. [1st Dist.] 2005, writ denied) .......................... 10

Golson v. Fielder, 21 S.W. 173 (Tex. App. 1893) ........................3, 7

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CASES (Cont‟d)

PAGE(S)

Hatley v. Schmidt, 471 S.W.2d 440,

(Tex. App. – San Antonio 1971, writ ref‟d) ..................................... 3

Hill v. Jarvis, App. Cause No. 12-07-00091-CV,

(Tex. App. – Tyler 2008, writ den‟d),

(Memo Op.; not designated for pub‟n) ......................................8, 10

In re E.A., 287 S.W.3d 1 (Tex. 2009) ....................................... 13

In the Interest of D.J.D., 

79 S.W.3d 804 (Tex. App. -- Corpus Christi 2002, no writ) ................. 10

M.A.V. Jr. v. Webb Cty. Court at Law, 

842 S.W.2d 739 (Tex. App. -- San Antonio 1992, writ denied) .................. 2, 4

Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co.,

236 S.W.3d 765 (Tex. 2007) .............................................................. 11

Prize Energy Resources, L.P. v. Hoskins, 

345 S.W.3d 537 (Tex. App. -- San Antonio 2011, no writ) .................. 2, 6

Schluter v. Sell, 194 S.W.2d 125 (Tex. App. – Austin 1946, no writ) ...........6, 8

Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003) ........................ 4

Wheeler v. Phillips, 

App. Cause No. 03-10-00221-CV,

(Tex. App. – Austin 2011, writ denied) ................................................ 9

Wooley v. West, 

391 S.W.2d 157 (Tex. App. -- Tyler 1965, writ ref'd) ............................... 3, 4

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CODES

PAGE(S)

Chapter 29, Texas Property Code ...................................................11, 12

RULES

Tex. R. Civ. Proc. 21a .................................................................... 13

Tex. R. App. Proc. 33.1(a) ........................................... 9

Tex. R. App. Proc. 38.1 (i) ................................................ 2, 8, 9, 12

Tex. R. Civ. Proc. 113 ...................................................................... 12

Tex. R. Civ. Proc. 114 ...................................................................... 12

Tex. R. Civ. Proc. 115 ...................................................................... 12

Tex. R. Civ. Proc. 116 ...................................................................... 12

Tex. R. Civ. Proc. 117 ...................................................................... 12

Tex. R. Civ. Proc. 272 ..................................................................... 10

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CAUSE NUMBER 04-14-667-CV

______________________________

RAMIRO AND EDNA RAMOS AND

FEDERICO SALAZAR, JR., APPELLANTS

V.

THE UNKNOWN HEIRS OF

TOMASA GONZALEZ AND

NARCISO GONZALEZ, APPELLEES

_______________________________

IN THE FOURTH COURT OF APPEALS

SAN ANTONIO TEXAS

_____________________________

ON APPEAL FROM THE

381st JUDICIAL DISTRICT COURT

TRIAL CAUSE NO. DC-09-559

HON. J. MANUEL BANALES,

PRESIDING JUDGE

___________________________

THE APPELLEES‟ REPLY BRIEF

TO THE APPELLANTS‟ REPLY BRIEF

___________________________

TO THE HONORABLE JUSTICES OF SAID COURT: 

Pending this Court‟s ruling on their companion Unopposed Motion for an 

extension of time to file this Reply Brief, the Appellees present the following Replies:

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1. THE APPELLEES‟ REPLY TO

 THE APPELLANTS‟ FIRST REPLY.

The Appellees argue that what this Reply‟s Argument ignores is that none of 

its authorities and those cited in the Appellants‟ Brief show that an appellate court has 

ever affirmed or reversed and remanded for correction a plaintiff‟s claim for 

reimbursement of property taxes, expenses, outlays, etc., when the Record 

unequivocally showed that he, despite having realized for many years that taxes had 

not been paid, himself then began belatedly paying them but, before, during, or after 

doing that, did not make a single demand for reimbursement in any form from a 

cotenant before filing his suit because of the latter‟s subsequent refusal. Accord Tex. 

R. App. Proc. 38.1(i)[A Brief must {Emphasized} contain a clear and concise 

argument to support its contentions with appropriate citations to authorities and to the 

Record]; M.A.V. Jr. v. Webb Cty. Court at Law, 842 S.W.2d 739, 749 (Tex. App. --

San Antonio 1992, writ denied)[Failure to adequately-brief Point prevents review]; 

Accord Prize Energy Resources, L.P. v. Hoskins, 345 S.W.3d 537, 562, 588, Fn. 28 

& 30 (Tex. App. -- San Antonio 2011, no writ), citing Rule 38.1(i), supra.

Surely such evidence cannot be rewarded in this case (See below) under any 

theory of law and/or equitable principle. Accord Bush v. Gaffney, 84 S.W.2d 759, 

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764 (Tex. App. -- San Antonio 1935, no writ)[One “who seeks equity must do 

equity”]; Golson v. Fielder, 21 S.W. 173, 175 (Tex. App. 1893)[“Simply the payment 

of taxes will not amount to an ouster or repudiation of the title of the true owner, nor 

will the assertion of claim to the entire tract have that effect, unless notice of such 

fact is brought home to the other cotenant or owner.”].

As for the Argument‟s reliance on its cases, the Appellees present these 

rebuttals:

1. Bailey-Mason v. Mason, 334 S.W.3d 39 (Tex. App. -- Dallas 2008, writ den‟d)

does not support its theory of reversible error because the appellate court 

denied the appellant‟s attempt to recover, among other things, property tax 

payments because her “pleading sought reimbursement only „for improvement 

to the property.‟ Thus, her reimbursement claims based on expenditures for 

..., taxes, ..... must fail.” Id., at 45, citing Wooley v. West, 391 S.W.2d 157, 

161 (Tex. App. -- Tyler 1965, writ ref'd).

The Appellees acknowledge that their Third Amended Petition, which 

replaced their first two, Hatley v. Schmidt, 471 S.W.2d 440, 442 (Tex. App. –

San Antonio 1971, writ ref‟d), sought the recovery of their paid property taxes. 

C.R., Vol. 001, P. 305.

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However, even though Mason, supra, acknowledged that the appellant 

paid a sum certain for property improvements, it still reviewed the evidence to 

see “whether the trial court's failure to find in her favor is so contrary to the 

overwhelming weight and preponderance of the evidence as to be clearly 

wrong and manifestly unjust.” Id., at 45 (Citations omitted), and found that she 

had not based on her unspecific pleadings. 

As the Appellees stated in their Brief, a party is obligated to include the 

appropriate review standard for each Point, Swearingen v. State, 101 S.W.3d 

89, 100 (Tex. Crim. App. 2003), and the Appellants‟ original and Reply Briefs 

do not, which the Appellees argue certainly prevents this Court from making a 

reasoned decision on whether the trial court abused its discretion, as they 

claimed. Accord M.A.V. Jr. v. Webb Cty. Court at Law, 842 S.W.2d at 749.

2. In Wooley, supra, the court noted that the appellee argued “that the court 

correctly disregarded the jury's findings to a Special Issue because the 

undisputed evidence shows that she discharged the lien in the amount of 

$2,991.11 with her own separate funds and the parties being mere co-tenants, 

[she] had a right to reimbursement with interest, and also and an equitable right 

of reimbursement for money expended in preserving the property in the 

amount of $303.00 (being the taxes).” Id., at 159.

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But when revisiting the issue, the Court stated:

“As a general proposition, a cotenant who pays more than his share of a 

debt secured by a mortgage or other lien on the common property, or 

who makes an outlay for necessary or proper preservation thereof is 

entitled to reimbursement from his co-tenants to the extent to which he 

paid their share of the indebtedness. 

The right of contribution arises from equitable considerations, and rests 

upon the principle that where all are equally liable for the payment of a 

debt or common burden, all are bound equally to contribute to that 

purpose even though the paying co-tenant at the time of the payment, 

asserted exclusive title to the common property or believed himself the 

sole owner thereof.”

Id., at 160.

Although they inadvertently failed to do so in their Brief, the Appellees 

now argue that the controlling phrases in that statement to this case are (1) 

“who pays more than his share,” and (2) “to which he paid their share,” and (3) 

“all are equally liable for the payment of a .... common burden, all are bound 

equally ... ”.

In contrast, the Appellants‟ 2 Briefs do not contain a Record reference 

showing that their total tax payments fell in those ambits, but simply argued 

that because the trial court found they paid $100,578.31 in ad valorem taxes, 

they were entitled to a Judgment for it repayment, but because they did not, the 

trial court abused its discretion.

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So, just as was the Appellants‟ original theories of relief and reversible 

error were substantively defective, the Appellees argue that this Court can 

properly find that this Argument‟s theories are too. 

3. In Hoskins, supra, this Court reviewed an appeal respecting a title dispute to 

mineral interests among 4 owners. Id., at 545. The Argument did not favor this 

Court with a specific page in this case it should review but, suffice it to say, the 

word “tax” appears once (and only as a statement of fact). Id., at 581; “lien” is 

not referenced; and, after this Court stated it found only one case applying a 

particular analysis to a co-tenant's reimbursement claim, it held that:

“as a general rule oil and gas wells are characterized as improvements to 

real property; as such, equitable principles apply and dictate that a 

person „who in good faith makes improvements upon property owned by 

another is entitled to compensation therefore.‟ " 

Id., at 564.

The Argument failed to explain how that holding has a definite 

application to this case‟s resolution in the Appellants‟ favor. Rule 38.1(i), 

supra.

4. In Schluter v. Sell, 194 S.W.2d 125 (Tex. App. – Austin 1946, no writ), the 

property in question appears to have been awarded to the parties in California 

since the appellant filed for its partition there, but dismissed it on grounds that 

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the decree was interlocutory. Id., at 132. Thereafter, the appellee, his ex-wife, 

filed a petition for partition in Texas in which she sought in part the recovery 

of property taxes she had paid. Id., at 125.

Although the Opinion is silent about when the appellant failed and 

refused to “do anything about the property,” or, whether that occurred before or 

after the appellee filed her Texas suit, the Appellees argue that a logical 

conclusion is that it was before she did because the Opinion noted that she 

testified that the burden of caring for the property fell completely upon her. Id., 

at 132.

The Appellees argue that what is significant about her evidence is that it

shows there was an affirmative action by her to get the appellant to reimburse 

her for what she paid before filing her Texas suit. Id., at 132 [During all these 

years ..... ]; Compare Golson, supra.

Although the Court disagreed with part of her claim, it sustained her plea 

for the recovery of her tax payments. Id., at 133.

In contrast, the Appellants‟ Briefs do not reference any evidence 

showing that before they filed their 3 Petitions, C.R., Vol. 001, Pp. 13-17, Pp. 

72-118, and Pp. 291-308, they notified the Appellees of the tax notices they

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began receiving 16 years ago; sent proofs of their payments in response to the 

notices, which commenced 13 years later; and then make any form of a 

demand for reimbursement that was refused. Rule 38.1(i), supra.

In support of all of that, the Appellees present this evidence:

A. Although the Appellants first received notice of a tax delinquency in late 1983, 

R.R. 2, P. 365, Plaintiff‟s Exhibit No. 1 showed that they did not make the first 

payment until December 2006. R.R. 3, P. 362.

B. The Appellants notified no Appellee and/or relative of the tax notices, their 

payments, and/or demand reimbursement, and did not inquire of the tax office 

if the taxes were being paid. Id., at 140, 311; R.R. 4, Pp. 65-66; and

C. They made no effort to determine what other heirs were alive before their suit 

was filed . R.R. 3, Pp. 126 – 27; 306 - 307.

Therefore, Schluter, supra, is not only inapplicable to their theories of 

equitable relief and the trial court‟s abuse of discretion, its facts are inapposite.

5. In Hill v. Jarvis, App. Cause No. 12-07-00091-CV (Tex. App. – Tyler 2008, 

writ den‟d)(Memo Op.; not designated for pub‟n), the Opinion stated that “At 

the close of evidence, the parties stipulated that the Jarvises were responsible to 

repay a substantial part of the taxes the Hills paid.

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The Appellants‟ original and Reply Briefs do not cite a Record reference 

to such evidence in this case. Rule 38.1(i), supra.

6. In Wheeler v. Phillips, App. Cause No. 03-10-00221-CV (Tex. App. – Austin 

2011, writ denied), the Opinion showed that Phillips, to whom the property in 

question was conveyed, and another began making tax payments on it after 

receiving notices of delinquencies in 1998; that Wheeler had an interest in it in 

1998; and that – more significantly to this case -- he was aware of the 

payments prior to and during the suit‟s pendency.

Again, the Appellants‟ original and Reply Briefs do not contain a Record 

reference to such evidence. Id.

2. THE APPELLEES‟ REPLY TO

 THE APPELLANTS‟ SECOND REPLY.

The Appellees first argue that this Reply‟s Argument that they mistakenly 

relied on Tex. R. App. Proc. 33.1(a) to rebut the Appellants‟ theory of relief in their 

Brief‟s second Issue is itself wrong because the Rule does not state that it is limited to 

the admission or failure to admit evidence, and the Argument does not cite authority 

supporting that claim.

In fact, authority holds that a party can present an Issue complaining about a 

trial court‟s procedure, but have it overruled through a failure to comply with the

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Rule. In the Interest of D.J.D., 79 S.W.3d 804, 806 (Tex. App. -- Corpus Christi 

2002, no writ); have an Issue overruled for a failure to have objected to the trial 

court's findings of fact and conclusions of law. Dunn v. Dunn, 177 S.W.3d 393, 398 

(Tex. App. – Hous. [1st Dist.] 2005, writ denied), citing cases for the same 

conclusion; and have one overruled for a failure to have objected to a jury issue. Hill, 

supra, citing Tex. R. Civ. Proc. 272.

Finally, the Argument does not explain how its cases show that their trial court

committed reversible error in light of the evidence before it. Since the Appellees 

have already briefed all of the Argument‟s cases except Casso v. Fullerton, App. 

Cause No. 04-05-00905-CV (Tex. App. – San Antonio 2006, writ denied), they will

now only brief the question of whether it supports the Appellants‟ second Issue 

alleging reversible error.

Casso, supra, certainly held that the trial court erred in calculating the Casso‟s 

reimbursements, and reversed and remanded the appeal accordingly. However, the 

Cassos sued the appellee under an equitable subrogation theory of relief; in contrast, 

the Appellants did not, C.R., Vol. 001, Pp. 291-308, and their Briefs do not claim 

they did.

The Appellees argue that those failures are significant to a determination of 

whether Casso, supra, has an actual application to this Reply because the doctrine of

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equitable subrogation allows a party -- who otherwise lacks standing -- to prosecute a 

claim belonging to a party with standing. See, e.g., Mid-Continent Ins. Co. v. Liberty 

Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007).

Obviously, the Appellants‟ pleadings and the Record unequivocally show that 

they sued the Appellees only on their own behalf. Therefore, Casso, supra, also has 

absolutely no application to their Second Issue of reversible error.

Finally, the Appellants‟ third and fourth consolidated Replies state that they 

fervently argued at trial and on appeal that Chapter 29 of the Texas Property Code 

was just one of several means to obtain the reimbursement they sought. Reply Brief, 

P. 3. 

As the Appellees stated in their Brief, the Record shows that the trial court‟s 

Judgment recognized that theory of the Appellants‟ basis for relief [“Both parties find 

support in” that Chapter “to urge their respective positions.” C.R., Vol. 002, P. 636, ¶ 

4., sub-¶ 2.], and the Appellants never thereafter objected to that Finding.

That being so, the Appellees argue that this Court can properly find that the 

Appellants‟ trial and appellate stipulations that they had multiple theories of relief 

certainly allowed the trial court to choose which of the theories upon which it would 

base its decision to conclude that they were not entitled to a Judgment and, then, 

allow it to also properly find that further inquiry into whether the court abused its

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discretion is foreclosed.

The Appellees next argue that even if this Court were to find the trial court 

abused its discretion (which they again deny happened given the context of the 

Record and the Appellants‟ stipulations), it was invited error and, therefore, its 

review can be properly denied on that basis.

3. THE APPELLEES‟ REPLIES TO THE

 APPELLANTS‟ THIRD AND FOURTH REPLIES.

At the outset, the Appellees argue that the Appellants‟ first claim that they did 

not rely on Chapter 29, supra, for relief is completely irreconcilable with their next 

claim that they fervently argued at trial and on appeal that it was one of several means 

to get reimbursed, and these Replies‟ consolidated Argument does not contain a 

Record reference showing that at any point in the trial proceedings did they argue that 

although the Chapter was one means to obtain reimbursement, there was another that

superseded it because of the evidence before the court. Rule 38.1(i), supra.

The Appellees next argue that the Argument should be disfavored because it 

also does not cite authority to support their theory of reversible error. Id.

As for their reliance on the citation by publication, it is questionable because 

the Argument does not show where in the referenced pages strict compliance with 

Tex. R. Civ. Proc. 113 - 117 was complied with as to the persons named in their 

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Brief.

Finally, as was noted, the Appellants‟ Third Petition replaced their previouslyfiled Petitions. Case law holds that as a general rule citation need not be reissued if 

an amended Petition is filed; however, if it alleges a more onerous cause of action, it

must be effected in accordance with Tex. R. Civ. Proc. 21a. In re E.A., 287 S.W.3d 1, 

4 (Tex. 2009).

In that regard, the Appellants‟ first two Petitions made no reference to their 

alleged right to be reimbursed for tax payments on the property in question, but 

generally sought Judgments holding that they owned it in equal undivided shares, 

granting them court costs, attorney‟s fees, and such other and further relief, general or 

special, at law or in equity, to which they may be shown to be justly entitled. C.R., P. 

16 & 163.

However, their Third Amended Petition alternatively sought a Judgment 

against the Appellees for the taxes the Appellants paid, and a lien against the 

property, etc. Id., at 305.

The Appellees argue that the Prayer made the Appellants‟ cause of action 

against them more onerous and, therefore, any non-answering defendant must have 

been served with a copy of that Petition in conformity with Rule 21a, supra. In re 

E.A., 287 S.W.3d at 4.

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PRAYER

Based on their Responses to the Appellants‟ Brief‟s ISSUES and the foregoing 

Replies, the Appellees again pray that this Court will affirm the trial court‟s 

Judgment, and assess against the Appellants all costs and fees allowable by law and 

equity.

Respectfully Submitted By:

_____ / JOHN A. OLSON / ____

JOHN A. OLSON

Tex. Bar No. 15274750

20634 Creek River

San Antonio TX 78259-2084

210-307-0335 Office

210-402-3924 Fax

jaolson_ccda@yahoo.com

For the Appellees

CERTIFICATE OF SERVICE.

I delivered a copy of the Appellees‟ Brief to the Law Offices of Mr. Keith P. Miller 

and Ms. Megan C. Kucera, the Appellants‟ Attorneys, on 19 August 2015.

_____/ JOHN A. OLSON /_______

JOHN A. OLSON

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CERTIFICATE OF COMPLIANCE

This Brief‟s font is 14 points and contains less than 4,000 words.

______ / JOHN A. OLSON / _______

JOHN A. OLSON

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