May 2 5 , 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, 2 013, no pet.)( mem. op.). Fusselman is

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

there wa s 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: G RIFFITH

, J AY, & M ICHEL

, LLP

ATTORNEYS AT LAW 2200 F OREST P ARK B OULEVARD F ORT W ORTH, T EXAS 76110

- 1732

P HONE (817) 926

- 2500

F

AX (817) 926

- 2505
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 ACCEPTEDAPPELLANT’S POST

- SUBMISSION LETTER BRIEF May 25, 2018 Page 2

1. It is undisputed that the parties filed tax returns as filing m arried 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 gov ernment for years that he was married to Ryann.

As discussed during oral argument, this wa s contemporaneous evidence of

how the parties held themselves out

.

T he 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, t he 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, e vidence 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 ca se, 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

. Th is 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 r everse and remand to the trial court for a new trial.

Appellee also cited the case of Lujan v. Navistar, Inc., 2018 Tex.L EXIS 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 allowingAPPELLANT’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 genui ne issue from those

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

his sworn deposition te stimony that he ha d 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 G RIFFITH
, J AY & M ICHEL
, 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 )