May 25, 2018

VIA E-FILING 

Vivian Long, Clerk 

Seventh Court of Appeals 

P.O. Box 9540

Amarillo, Texas 79105-9540

 Re: Cause No. 07-17-00394-CV; Ryann Pedone v. Joshua Nelson 

 Harvey, In the Seventh Court of Appeals, Amarillo 

TO THE HONORABLE COURT OF APPEALS: 

During oral argument, counsel for the Appellee cited to the Court the case 

of Fusselman v. Fusselman, No. 09-11-00435-CV, 2016 Tex.App.LEXIS 10413

(Tex.App.—Beaumont September 16, 2013, no pet.)(mem. op.). Fusselman is

distinguishable from the present case in a number of ways. First, in Fusselman, 

there was a significant dispute whether the parties cohabitated together. In our 

case, it is undisputed that the parties cohabitated for a number of years together. 

Second, in Fusselman, there was just a brief mention that the parties had filed joint 

tax returns. Our case is significantly different in the following respects: 

GRIFFITH, JAY, & MICHEL, LLP

ATTORNEYS AT LAW

2200 FOREST PARK BOULEVARD

FORT WORTH, TEXAS 76110-1732

PHONE (817) 926-2500

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Website www.lawgjm.com Of Counsel

FRANKLIN MOORE

WILLIAM M. MURPHY

RICHARD L. BOURLAND, P.C.

 RICHARD L. BOURLAND

 ELIZABETH BOURLAND

ROSS P. GRIFFITH

JAMES V. JAY, IV

THOMAS M. MICHEL

KELLY E. DeBERRY

MARK J. PETROCCHI

BILL E. BOWERS

EVAN M. McGUIRE

L. STEPHEN FRANSCINI, V

LAUREN M. LOCKETT

APPELLANT’S POST-SUBMISSION LETTER BRIEF

07-17-00394-CV

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

5/25/2018 5:07 PM

Vivian Long, Clerk

ACCEPTED

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 5/25/2018 5:07:22 PM VIVIAN LONG CLERK
APPELLANT’S POST-SUBMISSION LETTER BRIEF

May 25, 2018

Page 2

1. It is undisputed that the parties filed tax returns as filing married for 

the years 2006 through 2013. 

2. It is undisputed that a third party certified public accountant, Clint 

Brints, prepared and filed joint tax returns on behalf of the parties. 

3. It is undisputed that another third party certified public accountant,

Carl Deaton, filed joint tax returns on behalf of the parties. 

4. It is undisputed that a banker entered into a loan transaction to the 

parties as being married. 

5. It is undisputed and a judicial admission by Josh himself that he had 

represented to the government for years that he was married to Ryann. 

As discussed during oral argument, this was contemporaneous evidence of 

how the parties held themselves out.

The undisputed evidence of: tax returns, bank documents, financial 

statements, CPA testimony, banker testimony, and both parties’ judicial 

admissions that they had held out to others that they were husband and wife cannot

be disregarded by the trier of fact. 

An appellate court conducting a legal sufficiency review cannot “disregard 

undisputed evidence that allows only one logical inference.” City of Keller v. 

Wilson, 168 S.W.3d 802, 814 (Tex. 2005). “By definition, such evidence can be 

viewed in only one light, and reasonable jurors can reach only one conclusion 

from it. Jurors are not free to reach a verdict contrary to such evidence, indeed, 
APPELLANT’S POST-SUBMISSION LETTER BRIEF

May 25, 2018

Page 3

uncontroverted issues need not be submitted to a jury at all.” Id. Not all evidence 

is the same. In this case, the trier of fact was not free to disregard this conclusive 

evidence. Most often undisputed contrary evidence becomes conclusive (and thus 

cannot be disregarded) when it concerns physical facts that cannot be denied. City 

of Keller, 168 S.W.3d at 815. For example, evidence that a buyer believed that a 

product had been repaired is conclusively negated by an accompanying letter to 

the contrary. Id.; PPG Industries, Inc. v. JBM/Houston Ctrs Partners, Ltd. 

P’ship., 146 S.W.3d 79, 97-98 (Tex. 2004). In this case, the contemporaneous 

testimony of uninterested witnesses supported by uncontradicted documents as 

well as Josh’s own sworn testimony and admission cannot be ignored. 

As such, the Fusselman case does not alter the consideration at issue in this 

case. This Court should reverse and render that an informal marriage was 

established as a matter of law. In the alternative, the Court should find that the 

findings were against the great weight and preponderance of the evidence and 

manifestly unjust and should reverse and remand to the trial court for a new trial.

Appellee also cited the case of Lujan v. Navistar, Inc., 2018 Tex.LEXIS 347 

(Tex. 2018) for the proposition that sham affidavits are not evidence and cannot 

defeat a motion for summary judgment if the affidavit directly contradicts, without 

explanation, previous testimony. The Supreme Court reasoned that allowing 
APPELLANT’S POST-SUBMISSION LETTER BRIEF

May 25, 2018

Page 4

manufactured affidavits to defeat summary judgment would thwart the very 

objective of summary judgment that there is no real and genuine issue from those 

that are formal or pretended. Id. at *10. In this case, Josh’s attempt to contradict 

his sworn deposition testimony that he had read the tax returns, understood them, 

signed them, and represented to the Federal Government for years that he was 

married to Ryann is a sham in order to avoid a finding of common law marriage. 

Respectfully submitted,

/s/ Thomas M. Michel 

Thomas M. Michel

State Bar No. 14009480

GRIFFITH,JAY & MICHEL, LLP

2200 Forest Park Blvd.

Fort Worth, Texas 76110

(817) 926-2500 (Telephone)

(817) 926-2505 (Facsimile)

Thomasm@lawgjm.com 

ATTORNEY FOR APPELLANT

TMM/kdw

cc: Paul Leopold (Via E-Service paul@koonsfull.com

Sean Patrick Abeyta (Via E-Service sean@koonsfuller.com)