No. 13

- 14

- 0 0 329

- CV

In the Court of Appeals Thirteenth Supreme Judicial District Edinburg , Texas

ALBERTO GARZA, ET AL
, APPELLANT S VS.

MELDEN & HUNT, INC.
, APPELLEE

APPELL ANTS ’ REPLY TO BRIEF OF APPELLEE

GARCIA & MARTINEZ, L.L.P. Adrian R. Martinez State Bar No. 13137600 Alberto T. Garcia III State Bar No. 00787515 6900 N. 10 th Street, Suite 2 McAllen
, Texas 785 0 4 P hone: (956) 627

- 0455 Fax : (956) 627

- 0487

ATTORNEY S FOR APPELL ANTS ACCEPTED 13-14-00329-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 2/2/2015 2:02:08 PM DORIAN RAMIREZ

CLERKii T ABLE OF C ONTENTS

Index of Authorities i

Argument 1

Prayer 5

Certificate of Service 6iii I NDEX OF A UTHORITIES

Cases Page
City of Houston v. Clear Creek Basin Auth ., 589 S.W.2d 671 (Tex. 1979) 3
Houston Endowment, Inc. v. Atlantic Richfield Co ., 972 S.W.2d 156 1 (Tex. App.

— Houston [14 th Dist.] 1998, no pet.)
Hudson v. Wakefield , 711 S.W.2d 628 (Tex. 1986) 1, 2
M.D. Anderson Hosp. and Tumor Institute v. Willrich
, 3 28 S.W.3d 22 (Tex. 2000)

Schneider Nat’l Carriers, Inc. v. Bates , 147 S.W.3d 264 (Tex. 2004) 1

Shih v. Tamisiea , 306 S.W.3d 939 (Tex. App.

— Dallas 2010, no pet.) 41 A RGUMENT

Law of the Case Doctrine
Appellee first argues that under the law of the case doctrine, this Court’s
prior decision in Melden & Hunt, Inc. v. Garza , 2013 WL 3517743 (Tex. App.

— Corpus Christi 2013, no pet.) (“Garza Appeal I”) conclusively establishes that the

limitations period for the Garza’s nuisance claim accrued before September 1,

2005

. Therefore, Appellee claims, it did not have to prove the nature, duration,
severity , or frequency of the Garzas’ injury in order to prove whether the nuisance

was permanent or temporary.
The law of the case doctrine does not apply here because it only applies to

questions of law and not to questions of fact. Hudson v. Wakefield , 711 S.W.2d
628, 630 (Tex. 1986) . When a plaintiff knew or should have known of an injury in

order to determine the accrual date for limitations analysis, is a question of fact.
Houston Endowment, Inc. v. Atlantic Richfield Co ., 972 S.W.2d 156, 160 (Tex.

App.

— Houston [14 th Dist.] 1998, no pet.). Also, the frequency, extent and duration
of the Garzas’ injur y, and whether such injuries are reasonably certain to continue
in the future, are questions of fact. Schneider Nat’l Carriers, Inc. v. Bates
, 147

S.W.3d 264, 281 (Tex. 2004). In Garza Appeal I this Court analyzed the facts

related to when the Garzas “knew or in the exercise of ordinary diligence should
have known of Melden & Hunt’s alleged negligence and the alleged injury2 resulting therefrom” in order to conclude that the negligence cause of action
accrued before September 1, 2005. Melden & Hunt, Inc. , 20 13 WL 3517743 *2.
Appellee wants this Court to take the same fact determinations it made ( i.e . when
the Garzas knew or should have known...”) and apply those fact determinations in
this appeal. But, the law of the case doctrine does not apply to questions of fact

.
The law of the case doctrine also does not apply because in Garza Appeal I

the Court discussed the accrual date for the Garzas ’ negligence claim, whereas this
appeal involves the accrual date for their nuisance claim. The Garzas did not
address this Court’s opinion in Garza Appeal I in the trial court or in their brief in
this appeal because Garza Appeal I did not involve, or even address
, the accrual of

the Garza’s nuisance claim. The law of the case doctrine does not apply when the
issues or the facts presented in a later appeal are not substantially the same as those

addressed in a prior appeal

. Hudson , 711 S.W.2d at 630. The facts necessary to
determine when a nuisance claim accrues are different than the facts necessary to

determi ne when a negligence claim accrues. To determine when a nuisance claim
accrues for limitations purposes, the factfinder determine s facts relevant to the
frequency, extent
, and duration of the injury to determine if the injury is permanent

or temporary. Those facts are not relevant to determining when a negligence claim
accrues and this Court in Garza Appeal I did not analyze, or even address, those3 types of facts. In fact, the opinion in Garza Appeal I does not even use the word

“nuisance” a single time.
For these reasons, the law of the case doctrine is inapplicable here.

Waiver

Appellee also argues that the Garzas waived their right to challenge the legal
sufficiency of its evidence establishing the accrual date of the Garzas’ nuisance

claim because th e Garzas did not raise the same argument with the trial court.
Appellee is wrong. Longstanding Texas Supreme Court case law allows a

nonmovant to challenge the legal sufficiency of a movants’ grounds for summary
judgment on appeal , even if the same challenge was not made in the trial court

.

A s the nonmovant, the Garzas had no burden to even respond to Appellee’s
summary judgment motion unless Appellee conclusively established its limitations

affirmative defense. M.D. Anderson Hosp. and Tumor Institute v. Willrich
, 28
S.W.3d 22, 23 (Tex. 2000). Clearly, Appellee presented no evidence whatsoever to
the trial court regarding the extent, duration and frequency of the Garzas’ injury,
and therefore did not conclusively establish the limitations defense for nuisance.

Because s ummary judgments must stand on their own merits, the nonmovant need
not respond to the motion to contend on appeal that the movant’s summary
judgment proof is insufficient as a matter of law to suppo rt summary judgment. Id

. As the Texas Supreme Court stated in City of Houston v. Clear Creek Basin Auth
.,4 589 S.W.2d 671, 678 (Tex. 1979) “[w]hile it would be prudent and helpful to the

trial court for the non

- movant always to file an answer or response, t he non

movant needs no answer or response to contend on appeal that the grounds
expressly presented to the trial court by the movant’s motio n are insufficient as a

matter o f l aw to support summary judgment.” The statement in TRCP 166a(c) that
issues not pr esented to the trial court in a written motion, answer or response will
not be considered on appeal, does not prohibit the nonmova nt from challenging the
legal sufficiency of the movant’s proof. “In other words, except to attack the legal
sufficiency of the movant’s grounds for summary judgment, the nonmovant must
expressly present to the trial court in a written answer or response to the motion
any reason for avoiding the movant’s entitlement to summary judgment.” Shih v.

Tamisiea , 306 S.W.3d 939, 944 (Tex. App.

— Dallas 2010, no pet.).
In this appeal, the Garzas challenge the legal sufficiency of Appellee’s proof
of the accrual date of the Garza’s nuisance claim. Appellee presented absolutely no

ev idence to the trial court regarding the extent, duration, or frequency of the
Garzas’ injury so that the Court could determine whether it was permanent or
temporary. Without such evidence, the Court cannot determine whether the

Garzas’ cause of action accr ued when the injury first occurred or was discovered
(permanent injury) or accrued with each injury (temporary nuisance). Thus,5 Appellee’s proof is legally insufficient to conclusively establish the accrual date of

the Garzas’ nuisance claim.

P RAYER

WHERE FOR E, PREMISES CONSIDERED, Appellants respectfully

request that this Honorable Court of Appeals reverse the MSJ Order insofar as it
dismisses Appellants ’ nuisance claim and their ability to recover exemplary
damages in connection with their nuisance claim.
Respectfully submitted,

GARCIA & MARTINEZ, L.L.P. 6900 N. 10 th Street, Suite 2 McAllen, Texas 78504 P hone: (956) 627

- 0455 Fax : (956) 627

- 0487

/s/ Albert Garcia ADRIAN R. MARTINEZ State Bar No. 13137600 adrian@garmtzlaw.com ALBERTO T. GARCIA III State Bar No. 00787515 albert@garmtzlaw.com

ATTORNEY S FOR APPELL ANTS6 C ERTIFICATE OF S ERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document was forwarded to the following on February 2 , 20 1 5

. Ms. Jacqueline M. Stroh T HE L AW O FFICE OF J ACQUELINE M. S TROH , P

. C

. 10101 Reunion Place, Suite 600 San Antonio, Tex as 78216
Mr. Henry B. Gonzalez III G ONZALEZ , C HISCANO , A NGULO & K ASSON , P

. C

. 613 N.W. Loop 410, Suite 800 San Antonio, Texas 78216

/s/ Albert Garcia Alberto T. Garcia III