No. 12-14-00007-CV

In the Court of Appeals

Twelfth Court of Appeals District

Tyler, Texas

REX SMITH and NANCY SMITH,

 Appellants 

v. 

KELLY DAVIS AND AMBER DAVIS

 Appellees 

Appealed from the 294th Judicial District Court

Van Zandt County, Texas

APPELLEES’ REPLY TO APPELLANT’S RESPONSE TO 

MOTION FOR REHEARING OF OPINION RENDERED FEBRUARY 18, 2015

ATTORNEY FOR APPELLEES:

S. Gary Werley

Law Office of S. Gary Werley

Texas State Bar No. 21187000 

1840 Acton Highway, Suite 102 

Granbury, Texas 76049 

817-573-7700 

817-573-7710 - fax 

sgwerley@werleylaw.com 

Appellees’ Motion for Rehearing Page 1

ACCEPTED

12-14-00007-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

4/7/2015 3:33:25 PM

CATHY LUSK

CLERK
TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES, Kelly Davis and Amber Davis, Appellees, and files this Reply 

to Appellant’s Response to Motion for Rehearing of the Court’s Opinion Rendered 

on February 18, 2015, and for same would show unto the Court the following:

I.

In Reply to the Response to the Rehearing as filed by the Smiths, the Davis’ 

herein state as follows: 

1. As to the issue of overcompensation to the Davis’.

In the original motion for rehearing the Defendant did not object to the 

amount of actual damages. Notwithstanding same the Court modified same 

in its opinion and judgment. Appellee’s Motion for Rehearing pointed out 

the failure to object. The Response does not address same.

Mr. Davis testified that the agreement between the parties was that all 

monies paid on Tract 9 would be applied to Tract 7. (RR P. 74). Rex 

Smith never called and said that they were late or missed a payment. (RR 

P. 30). The lawsuit was filed in February of 2008, and Davis was paid up 

at that time. (RR P.29). The jury believed Mr. Davis.
The Response makes the statement that “when the parties agreed to a deal 

on Lot 7, Smith agreed to accept a return of Lot 9, that the Davis’ account 

accrued equity on that Lot – the $3,700.00 – as a down-payment on Lot 7. 

There is no evidence to support this statement. There is no testimony 

concerning equity. The jury did not believe Smith.

2. As stated in the Motion for Rehearing filed by the Davis’, the pleadings 

filed by Plaintiff stated that violations of the sections of the Texas Property 

Code, in several instances, allowed for attorney’s fees under the DTPA. 

For instance, §5.069 provides that the Seller shall provide the Purchaser a 

survey. §5.070, not addressed by Appellant, provides that the Seller shall 

provide the Purchaser tax certificates. These items were not provided as 

found by the jury in response to Jury Questions. Both Sections state that 

the “failure to provide the information required by this Section is a false, 

misleading or deceptive act or practice within the Deceptive Trade Practice 

Act, and entitles the Purchaser to cancel and rescind the Executory 

Contract and receive full refund of all payments made to the Seller. 

 Either one of these disclosures would have disclosed that the property 

described as Lot 7 of the Tall Oaks Estates Subdivision, Van Zandt 

County, did not exist. (Pl’s Exh. 3, Def’s Exh 7A, RR 94). The jury found 

that as a result of the failure to provide a survey and/or tax certificates for 
the property that did not exist, the Davis’ relied upon these 

misrepresentations, and subsequently suffered damages in excess of 

$33,000.00. As a result the actions of Mr. Smith, attorney’s fees are due.

WHEREFORE, PREMISES CONSIDERED, Appellee requests that this 

Court grant the damages as found by the jury for violation §5.077 of the Property 

Code, the actual damages found by the jury, as well as attorney’s fees.

 

LAW OFFICES OF S. GARY WERLEY

BY:___/s/ S. Gary Werley_____

S. GARY WERLEY

State Bar No. 21187000

sgwerley@werleylaw.com

1840 Acton Highway, Suite 102

Granbury, Texas 76049

(Telephone) 817-573-7700

(Facsimile) 817-573-7710 

ATTORNEY FOR APPELLEES 
CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of Appellees’ Reply to 

Appellant’s Response to Motion for Rehearing has been forwarded to the following 

attorneys of record on this day of e-filing:

Via email or efiling

Jeffrey C. Irion

P. O. Box 5527

Gun Barrel City, TX 75147-5012

Jirionattorney@aol.com

Greg Smith

Ramey & Flock, PC

100 E. Ferguson, Suite 500

Tyler, Texas 75202

GregS@rameyflock.com

By:__/s/ S. Gary Werley_________

 S. GARY WERLEY