No. 08-21-00023-CV

IN THE COURT OF APPEALS

FOR THE EIGHT DISTRICT OF TEXAS

AT EL PASO

JOSE SALVADOR HERNANDEZ,

Appellant,

V.

ARLEON, LLC AND ISSE INVESTMENT

GROUP COPO>ORATION,

Appellees.

ON APPEAL FROM THE 171^^ DISTRICT COURT

EL PASO COUNTY, TEXAS

CAUSE NO. 2017DCV2709

REPLY TO APPELLEES’ BRIEF

David Pierce

State Bar No. 15992700

Law Office of David Pierce

7598 N. Mesa, Suite 202

El Paso, Texas 79912

Telephone: (915) 465-0912

Facsimile: (915) 613-3487

Counsel for Appellant

Jose Salvador Hernandez

ACCEPTED

08-21-00023-cv

EIGHTH COURT OF APPEALS

EL PASO, TEXAS

11/1/2021 5:11 PM

ELIZABETH G. FLORES

CLERK

08-21-00023-cv

 FILED IN 8th COURT OF APPEALS EL PASO, TEXAS 11/1/2021 5:11:00 PM ELIZABETH G. FLORES Clerk
TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES 1

ABBREVIATIONS AND RECORD REFERENCES 2

RESPONSE TO STATEMENT OF FACTS 3

SUMMARY OF THE ARGUMENT 3

ARGUMENT AND AUTHORITIES 3

PRAYER 9

CERTIFICATE OF COMPLIANCE 9

CERTIFICATE OF SERVICE 10
INDEX OF AUTHORITIES

Cases Page

Worth Steel & Machinery Co v. Norworthy, 570 S.W.2d 132, 136 4

(Tex. Civ. App-Tyler 1978, no writ)

Camarillo v. Cabinets by Michael, Inc., 2018 Tex. App. Lexis 4851,

2018 WL 315 3539 (Tex. App-Fort Worth, June 28, 2018, pet den.)

4

Brown v. Brown, 145 S.W. 3d 745 (Tex. App.-Dal, 2004, pet den.) 4

6 Brooks V. Sherry Lane National Bank, 788 S.W. 2d 874

(Tex. App.-Dallas 1990, no writ)

6 Miller v. Great Lakes Mgt. Serv., Inc, No. 02-16-00087-CV,

2017 WL 1018592 at *2 (Tex. App.-Fort Worth, Mar. 16, 2017)

(mem. op.)

Gilbert v. Kalman, 2021 Tex. App. Lexis 6842, 6

2121 WL 3674083 & n.5 Tex. App.-El Paso, Aug. 19, 2021)

Balderas-Ramirez V. Felder, 537 S.W. 3d 625, 632 7

(Tex. App-Austin 2017, pet denied)

8 Rapid Settlements, Ltd. v. Green, 294 S.W. 3d 701, 706

(Tex. App-Houston [W Dist.] 2009, no pet)

Rules and Statues

9 Texas Rule of Appellate Procedure 9.4 (e)

1
ABBREVIATIONS AND RECORD REFERENCES

Appellant Jose Salvador Hernandez is referred to as Appellant

3H Logistics, LLC is referred to as “3H

15

Appellee Arleon, LLC is referred to as “Arleon

15

Arleon’s principal Vicente Gomez is referred to as “Vicente

11

Appellee ISSE Investment Group Corporation is referred to as “ISSE

11

ISSE’s principal Javier Gomez is referred to as “Javier

11

The Clerk’s Record is referred to as “CR (page number)

51

The Reporter’s Record is referred to as “RR (page number)

11

2
RESPONSE TO STATEMENT OF FACTS

Appellees claims that Appellant “has repeatedly admitted that he is

responsible for paying the profits to Arleon and ISSE from the water hauling

business. “(Aple.’s Br. p. 4) Appellees claim “Hernandez admitted that he personally

owes $63,000 each”. (Aple.’s Br. p. 5) (emphasis added) Appellant never used the

word “personally” when he discussed payment to Appellees.

SUMMARY OF THE ARGUMENT

This very simple case turns on whether Appellees, who were in a contract with

3H, can hold Appellant, the owner of 3H, liable for 3H’s debt. The answer is no.

ARGUMENT AND AUTHORITIES

Appellee raises six arguments, lettered A-F, in response to Appellant’s brief

Appellant will respond to each of those arguments, though not in the order presented

by Appellee.

The Claim that the Affidavit Filed by Appellant is Conclusory

Because It Fails to Raise Any Factual Inferences to Justify Its

Conclusions Is Nonsensical and States No Argument Whatsoever

(Response to Aple.’s Arg. D)

Appellee claims that . . because the Affidavit is devoid of any factual

inferences to support any conclusory statements, it is not competent evidence that

would give rise to a genuine use of material fact.” (Aple.’s Br. p. 24) An inference

is a deduction which the reason of the trier of fact makes from the facts proved. Ft.

3
Worth Steel & Machinery Co v. Nof'worthy, 570 S.W.2d 132, 136 (Tex. Civ. AppTyler 1978, no writ) The speaker implies, the hearer or reader infers. Appellee, as

the speaker, could not “raise” any inference by definition, and therefore cannot

respond to Appellees’ argument as articulated.

The Fact That The 3H Tax Returns, Checks And Reports Referred

In The Affidavit Were Not Attached Does Not Render The

Affidavit Conclusory, Because Those Documents Are Not The

Source Of The Factual Information Contained in the Affidavit

(Response To Aple.’s Arg. C)

The absence of attached documents only makes an affidavit defective and

conclusoiy if the referenced papers are what provides the affidavit with a factual

basis. Camarillo v. Cabinets by Michael, Inc., 2018 Tex. App. Lexis 4851, 2018

WL 315 3539 (Tex. App-Fort Worth, June 28, 2018, pet den.). In other words, if

the affidavit asserts conclusions based on facts contained in documents, the

documents must be produced. If the affidavits contain factual allegations which

incidentally refer to documents, those documents need not be attached.

For example, in Brown v. Brown, 145 S.W. 3d 745 (Tex. App.-Dal, 2004, pet

den.), cited by Appellants, an expert witness in a divorce case based her conclusions

on facts she observed in the divorce records, but she failed to attach the records. The

court ruled that, without the records, there was no factual basis for the conclusions.

In the instant case. Appellant’s affidavit stated the following facts:

1) He has personal knowledge of all facts stated therein;

4
2) He is the President of 3H Logistics and it is a Texas Corporation in

existence;

3) The 3H business address;

4) That 3H filed tax returns every year;

5) There is no written contract between Appellant and Appellees;

6) At all times relevant to the lawsuit, 3H only did business with Appellees

through 3H;

7) All payments under the contract were paid by 3H checks drawn on a

3H bank account;

8) Payments made to Appellees were written on 3H checks;

9) The reports Appellant provided Appellees were on 3H documents

10) Appellant was principal and agent for 3H, but it had the verbal contract

with Appellees;

11) When Appellant was surreptitiously recorded, he and Appellees were

talking about multiple parties and he was not being specific about any

one;

12) Appellant does not now nor he has ever owed Appellants $126,000;

13) The business records attached to the affidavit, while not specific to

Appellees, are business records from Appellant showing it to be an

operating business. (CR 256-57)

5
These facts are personally known to Appellant because he prepared or caused

to be prepared the documents in question. He is not testifying to facts he extracted

from the documents; only that the documents exist. Appellees’ argument fails.

Appellant Was Not Required to Object to the Trial Court Striking

His Affidavit; Such a Requirement Is Neither Necessary Nor

Logical. In Any Event, Appellant Did Object (Aple.’s Arg. B)

Citing Brooks v. Sherry Lane National Bank, 788 S.W. 2d 874 (Tex. App.-

Dallas 1990, no writ), Appellees argues that Appellant failed to preserve error by not

objecting to the trial court striking Appellant’s affidavit filed in response to

Appellees’ Motion for Summary Judgment. (Aple.’s Br. p. 17) What Appellees

should have included in its brief, but did not, is at least one other Texas Court of

Appeals which expressly declined to follow the Brooks holding. See Miller v. Great

Lakes Mgt. Serv., Inc, No. 02-16-00087-CV, 2017 WL 1018592 at *2 (Tex. App.-

Fort Worth, Mar. 16, 2017) (mem. op.) (declining to follow the Brooks holding)

Even more on point, this Court has specifically declined to rule on the issue. Gilbert

V. Kalman, 2021 Tex. App. Lexis 6842,2121 WL 3674083 & n.5 Tex. App.-El Paso,

Aug. 19, 2021) (noting the conflict and declining to rule on the issue)

This Court should reject the requirement of objecting to the striking of

summary judgment evidence in any case, but especially this one. The main purpose

to an objection, motion for new trial or other statement of opposition by a party by

6
a ruling is two-fold: to make it clear to the Court that party’s opposition to the action

and to educate the Court that you believe they are committing error.

Some actions against a party are so adverse or prejudicial that the injured

party’s opposition is obvious. Thus, motions for new trial are not required after

every adverse Judgment, one does not need to have the Court “note my exception

after an adverse evidence ruling, and no Motion to Reconsider is necessary after a

court strikes one’s pleadings. Striking a summary Judgment affidavit could only be

prejudicial to its proponent, and only could be done by the Judge with full awareness

of the consequences. Another objection would be superfluous.

In any case. Appellant did argue against striking the motion and informed the

Court why. (CR 38) How would a subsequent objection have better preserved the

error? Appellants’ argument should be rejected.

The Fact That Appellees Established All Elements Of A Breach Of

Contract Claim Against Appellant Is Irrelevant; Appellant Met His

Burden By Presenting Evidence Raising A Fact Issue Regarding

Appellant Being A Party To The Contract (Responsive To Aple.’s

Point E)

To obtain a traditional summary Judgment, a party must present evidence that

establishes or negates a claim or defense as a matter of law. Balderas-Ramirez v.

Felder, 537 S.W. 3d 625, 632 (Tex. App-Austin 2017, pet denied) If that burden is

met, the non-movant must present evidence to raise a genuine issue of material fact

that would defeat summary Judgment. Id.

1
In the instant case, Appellants presented evidence of a contract and breach.

Appellee presented evidence that he was not a party to the contact and, therefore,

was not liable on the contract. It is fundamental that only parties to a contract can

be held liable for the contract’s breach. Rapid Settlements, Ltd. v. Green, 294 S.W.

3d 701, 706 (Tex. App-Houston [1"^ Dist.] 2009, no pet) Thus, summary judgment

was improper.

Appellees’ Claim That Appellant Failed To Brief His Claim Is

Inaccurate: The Facts Established His Position, He Provided the

Standard of Review and His Argument Identified and Explained

the Error; Citation to Further Authority was Unnecessary

(Response to Aple.’s Arg. A)

As has been explained, the trial court’s error was not complicated; she struck

a valid affidavit and granted a summary judgment for breach of contract against a

stranger to the contract. Appellant did not, and does not, think it necessary to cite a

case stating that a stranger to a contract cannot breach that contract, but now has

cited such a case.

The real reason Appellant did not write more in his initial brief was because

he had no idea what arguments Appellees would make. At trial, they argued

conclusory affidavit and lack of verified denial, both of which. Appellant contends.

On appeal, they have levied a host of new arguments. Appellant’s

brief was sufficient to apprize this Court of the trial court’s error. This case must be

were wrong.

reversed.

8
PRAYER 

For the foregoing reasons, Appellant request that the Court reverse the trial 

court's judgment, remand the case for a new trial, and grant Appellant such other 

and further relief to which he may be entitled. 

Respectfully submitted, 

LAW OFFICE OF DAVID PIERCE 

7598 N. Mesa, Suite 202 

E1Paso,Texas 79912 

Telephone: (915) 465-0912 

Facsimile: (915) 613-3487 

By: 

DAVID 

�

PIERCE 

�rl,----__ State Bar No. 15992700 

Attorneys for Appellant 

CERTIFICATE OF COMPLIANCE 

Pursuant to Texas Rule of Appellate Procedure 9.4(e) I hereby certify that 

this brief contains 1933 words. This is a computer-generated document created in 

Microsoft Word, using 14-point Times New Roman font for all text. In making this 

certificate of compliance, I am relying on the word count provided by the software 

used to prepare the document. 

�IERCE -�r,,r----

9 

State Bar No. 15992700 

Attorneys for Appellant 
CERTIFICATE OF SERVICE

I hereby certify that on this Monday, November 1, 2021, the foregoing

document was electronically filed with the clerk of the Court and a true and

correct copy was electronically served on the paities/attomeys of record listed

through the efile.txcourts.gov system.

DAVID PIERCE

10
Automated Certificate of eService

This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system

on the date and to the persons listed below. The rules governing

certificates of service have not changed. Filers must still provide a

certificate of service that complies with all applicable rules.

David Pierce

Bar No. 15992700

dpierce@davidpiercelaw.com

Envelope ID: 58741607

Status as of 11/2/2021 10:35 AM MST

Associated Case Party: JoseSalvadorHernandez

Name

David Pierce

Ariana Morales

BarNumber Email

dpierce@dpiercelaw.com

amorales@davidpiercelaw.com

TimestampSubmitted

11/1/2021 5:11:00 PM

11/1/2021 5:11:00 PM

Status

SENT

SENT

Case Contacts

Name

David Pierce

Blake Downey

BarNumber Email

dpierce@davidpiercelaw.com

bdow@scotthulse.com

TimestampSubmitted

11/1/2021 5:11:00 PM

11/1/2021 5:11:00 PM

Status

SENT

SENT

Associated Case Party: Arleon , LLC

Name

Francisco Ortega

Blake Downey

BarNumber Email

fort@scotthulse.com

bdow@scotthulse.com

TimestampSubmitted

11/1/2021 5:11:00 PM

11/1/2021 5:11:00 PM

Status

SENT

SENT