No. 13-14-00329-CV

In the

Court of Appeals

Thirteenth Supreme Judicial District

Edinburg, Texas

ALBERTO GARZA, ET AL,

APPELLANTS

VS.

MELDEN & HUNT, INC.,

APPELLEE

APPELLANTS’ 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. 10th Street, Suite 2

McAllen, Texas 78504

Phone: (956) 627-0455

Fax: (956) 627-0487

ATTORNEYS FOR APPELLANTS

ACCEPTED

13-14-00329-CV

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

2/2/2015 2:02:08 PM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 2/2/2015 2:02:08 PM DORIAN E. RAMIREZ Clerk
ii

TABLE OF CONTENTS

Index of Authorities i

Argument 1

Prayer 5

Certificate of Service 6
iii

INDEX OF AUTHORITIES

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 [14th 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.) 4
1

ARGUMENT

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 [14th Dist.] 1998, no pet.). Also, the frequency, extent and duration 

of the Garzas’ injury, 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 injury 
2

resulting therefrom” in order to conclude that the negligence cause of action 

accrued before September 1, 2005. Melden & Hunt, Inc., 2013 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 

determine when a negligence claim accrues. To determine when a nuisance claim 

accrues for limitations purposes, the factfinder determines 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, those 
3

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 the 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.

As 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 summary 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 support 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, the nonmovant needs no answer or response to contend on appeal that the grounds 

expressly presented to the trial court by the movant’s motion are insufficient as a 

matter of law to support summary judgment.” The statement in TRCP 166a(c) that 

issues not presented to the trial court in a written motion, answer or response will 

not be considered on appeal, does not prohibit the nonmovant 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 

evidence 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 accrued 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.

PRAYER

WHEREFORE, 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. 10th Street, Suite 2

McAllen, Texas 78504

Phone: (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

ATTORNEYS FOR APPELLANTS
6

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the 

foregoing document was forwarded to the following on February 2, 2015.

Ms. Jacqueline M. Stroh

THE LAW OFFICE OF JACQUELINE M. STROH, P.C.

10101 Reunion Place, Suite 600

San Antonio, Texas 78216

Mr. Henry B. Gonzalez III

GONZALEZ, CHISCANO, ANGULO & KASSON, P.C.

613 N.W. Loop 410, Suite 800

San Antonio, Texas 78216

 /s/ Albert Garcia 

Alberto T. Garcia III