NO. 12-15-00169-CV

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF TEXAS

AT TYLER

EARL ANDERSON, CARRIE BELL SCOTT, SHARON ANDERSON, 

EVANCE ANDERSON, BILL BURTON, WILLIE MAE ANDERSON

AND JERRY J. ANDERSON (SMITH),

Appellants,

V.

ROBERT LOUIS DURHAM AND FRANK L. ZELLERS, III,

Appellees

_____________________________________________________

 On appeal from the 173 District Court rd

Henderson County, Texas

Trial Court No. 2012A-0662 

_____________________________________________________

REPLY BRIEF OF APPELLANTS

______________________________________________________________

LANA JOHNSON

 State Bar number 10763650

 P. O. Box 816325 

 Dallas, TX 75381-6325

 ATTORNEY FOR APPELLANTS

ACCEPTED

12-15-00169-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

10/20/2015 8:06:36 PM

Pam Estes

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 10/20/2015 8:06:36 PM PAM ESTES Clerk
TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................... ii

INDEX OF AUTHORITIES ................ iii

I. SUMMARY OF THE ARGUMENT ......... 1

II. REPLY _________________ 2

A. Appellee has Failed to address the issue 2

that Durham’s summary judgment was not the

proper vehicle to address Appellants’

failure to state a cause of action.

B. Fact questions exist regarding the Warranty 3

Deed from B. A. Anderson due to alterations.

C. Appellants were denied the opportunity to 4

discover the nature of Durham’s claim that

actually established the controversy.

D. Appellants were denied the opportunity to 5

prove the elements of trespass to try title.

E. Durham failed to verify his challenge to 5

his alleged defect of parties.

CERTIFICATE OF SERVICE .................... 6

CERTIFICATE OF COMPLIANCE _................ 6

-ii-
INDEX OF AUTHORITIES

CASES Page

Horizon v. Auld, 34 S.W.3d 887 (Tex. 2000)..... 3

Perry v. Cohen, 285 S.W.3d 137 ............... 3

(Tex.App.-Austin 2009)

Spivy v. March, 151 S. W. 1037 (Tex. 1912) 4

TEXAS CONSTITUTION, STATUTES, AND RULES

Texas Rules of Appellate Procedure 38.1(f) and 38.3 1

T.R.C.P, Rule 90, 91 & 93 ........................ 3

-iii-
TO THE HONORABLE TWELFTH DISTRICT COURT OF APPEALS:

Appellants submit this Reply Brief praying that

this Court reverse the trial court’s order granting

summary judgment dismissing Appellants’ claims.

I.

SUMMARY OF THE ARGUMENT

Appellee attempts to mislead this Court by

asserting that the trial court imposed a deadline for

Appellants to amend their petition. The record does not

support his assertion. Appellee improperly attacked

Appellant’s petition with a no evidence motion for

summary judgment rather than properly filing special

exceptions. (CR 32) The trial court erred by allowing

amendment of Appellants’ petition rather than requiring

Appellee to properly file special exceptions, conducting

a hearing with a proper order so that Appellants could

cure any defects in their petition. The Texas Rules of

Civil Procedure provide for pleading amendments during

the pendency of summary judgment hearings. The trial

court thereby denied Appellants due process of law and

Appellants’ rights were fatally violated. Appellants

1
are entitled to a new trial. Further, Appellants were

denied the opportunity to cure any defects in their

affidavits and to conduct discovery on Appellee’s

amended answer and counterclaim. The trial court abused

its discretion by striking Appellants’ evidence.

Because the trial court abused its discretion, this

Court should reverse the order granting summary and

dismissal of Appellants’ claims.

II.

REPLY

A. Appellee has failed to address the issue that

Durham’s summary judgment was not the proper

vehicle to address Appellants’ failure to state a

cause of action.

Texas Rules of Appellate Procedure 38.1(f) and 38.3

provide for statement of issues in Appellants’ brief and

reply brief. Appellants raised the issue in their brief

and Durham simply failed to adequately address the

issue. Appellants raised the issue of Durham’s failure

to file special exceptions to raise the defect of

Appellants’ standing as Plaintiffs in this suit. Tex.

Rules of Civ. Pro., Rule 91 provides that special

2
exceptions are required to raise the issue. The Court

stated in Perry v. Cohen, 285 S.W.3d 137 (Tex.App.-

Austin 2009) in footnote 4 “[4] Special exceptions

inform the opposing party of defects in its pleadings,

so the party may have an opportunity to cure the defect.

See Horizon v. Auld, 34 S.W.3d 887, 897 (Tex.2000).”

Further, Texas Rules of Civil Procedure, Rule 90 waives

defect of parties unless objection by special exceptions

is filed. T.R.C.P Rule 93 requires verification of

pleadings asserting defect of parties and Durham failed

to verify his operative pleading. Therefore, the trial

court erred by granting summary judgment based upon the

lack of evidence on the defect of parties concerning

standing, by striking Appellants’ evidence, concerning

limitations and concerning the sufficiency of

allegations of title to real property. Durham waived

any defects and the issues were not ripe for

determination by summary judgment.

B. Fact questions exist regarding the Warranty Deed

from B. A. Anderson due to alterations.

The alterations in the deed are substantial and not

3
technical defects. Durham failed to address the

alterations and strike outs on the deed that

distinguishes this case from the result in Spivy v.

March, 151 S.W. 1037 (Tex. 1912) Further, Spivy involved

a well developed record allowing the Texas Supreme Court

to properly analyze the issue. The instant case

involves denial of due process to properly develop the

issues concerning laches and limitations. None of the

cases that Durham cited involve strike outs on a deed

and therefore fail to address the issue.

C. Appellants were denied the opportunity to discover

the nature of Durham’s claim that actually

established the controversy.

Durham’s Answer and Counterclaim placed title to the

property Appellants claim. Appellant’s had outstanding

discovery to clarify the chain of title. Durham’s deed

was outside the chain of title and Appellants were

prejudiced by the trial court refusal to grant a

continuance to allow sufficient time for discovery of

facts Durham alleged within six months prior to

rendition of summary judgment.

4
D. Appellants were denied the opportunity to prove the

elements of trespass to try title.

Appellants alleged title from a purported common

source relating back to B. A. Anderson. A short delay

for adequate discovery would not prejudice Durham. The

Zeller’s deed from Durham’s predecessor traces back to

an unpublished instrument and Appellants had outstanding

discovery to determine Durham’s claim and substantiate

Appellants’ claim.

E. Durham failed to verify his challenge to his alleged

defect of parties.

Appellants had standing to challenge the deed from

B. A. Anderson and Durham waived any defect. Durham

failed to address the exception to hearsay concerning

family history. The trial court erred by striking

Appellants’ recitation of family history.

WHEREFORE, PREMISES CONSIDERED, Appellants

respectfully pray that this court grant review in this

case and vacate the trial court's summary judgment. The

Andersons also request any other relief to which he may

be entitled.

5
Respectfully submitted,

_____________________________

LANA JOHNSON

Texas Bar No. 10763650

P. O. Box 816325

Dallas, TX 75381-6325

Tel. (903) 646-0672

Fax. (866) 447-7148

Attorney for Appellants

CERTIFICATE OF SERVICE

I certify that on October 20, 2015 a true and correct

copy of the foregoing document was served to Appellee’s

Attorney of Record, by e-mail.

____________________________

LANA JOHNSON

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify

that this Reply Brief contains 1,170 words. This

computer-generated document created in Word Perfect

using 14-point typeface 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.

________________________

LANA JOHNSON

6

 Lana Johnson Lana Johnson Lana Johnson
Texas Rules

TEXAS RULES OF CIVIL PROCEDURE

Part II. RULES OF PRACTICE IN DISTRICT AND

COUNTY COURTS

§ 4. Pleading.

C. Pleadings of Defendant

As amended through June 10, 2014

Rule 90. WAIVER OF DEFECTS IN PLEADING

General demurrers shall not be used. Every defect,

omission or fault in a pleading either of form or of

substance, which is not specifically pointed out by

exception in writing and brought to the attention of the

judge in the trial court before the instruction or charge to

the jury or, in a non-jury case, before the judgment is

signed, shall be deemed to have been waived by the party

seeking reversal on such account; provided that this rule

shall not apply as to any party against whom default

judgment is rendered.
Texas Rules

TEXAS RULES OF CIVIL PROCEDURE

Part II. RULES OF PRACTICE IN DISTRICT AND

COUNTY COURTS

§ 4. Pleading.

C. Pleadings of Defendant

As amended through June 10, 2014

Rule 91. SPECIAL EXCEPTIONS

A special exception shall not only point out the particular

pleading excepted to, but it shall also point out intelligibly

and with particularity the defect, omission, obscurity,

duplicity, generality, or other insufficiency in the

allegations in the pleading excepted to.
Texas Rules

TEXAS RULES OF CIVIL PROCEDURE

Part II. RULES OF PRACTICE IN DISTRICT AND

COUNTY COURTS

§ 4. Pleading.

C. Pleadings of Defendant

As amended through June 10, 2014

Rule 93. CERTAIN PLEAS TO BE VERIFIED

A pleading setting up any of the following matters, unless

the truth of such matters appear of record, shall be

verified by affidavit.

1. That the plaintiff has not legal capacity to sue or that

the defendant has not legal capacity to be sued.

2. That the plaintiff is not entitled to recover in the

capacity in which he sues, or that the defendant is not

liable in the capacity in which he is sued.

3. That there is another suit pending in this State between

the same parties involving the same claim.

4. That there is a defect of parties, plaintiff or defendant.

5. A denial of partnership as alleged in any pleading as to

any party to the suit.

6. That any party alleged in any pleading to be a

corporation is not incorporated as alleged.

7. Denial of the execution by himself or by his authority

of any instrument in writing, upon which any pleading is

founded, in whole or in part and charged to have been

executed by him or by his authority, and not alleged to be

lost or destroyed. Where such instrument in writing is

charged to have been executed by a person then

deceased, the affidavit shall be sufficient if it states that

the affiant has reason to believe and does believe that

such instrument was not executed by the decedent or by

his authority. In the absence of such a sworn plea, the

instrument shall be received in evidence as fully proved.

8. A denial of the genuineness of the indorsement or

assignment of a written instrument upon which suit is

brought by an indorsee or assignee and in the absence of

such a sworn plea, the indorsement or assignment thereof

shall be held as fully proved. The denial required by this

subdivision of the rule may be made upon information

and belief.

9. That a written instrument upon which a pleading is

founded is without consideration, or that the

consideration of the same has failed in whole or in part.

10. A denial of an account which is the foundation of the

plaintiffs action, and supported by affidavit.

11. That a contract sued upon is usurious. Unless such

plea is filed, no evidence of usurious interest as a defense

shall be received.

12. That notice and proof of loss or claim for damage has

not been given as alleged. Unless such plea is filed such

notice and proof shall be presumed and no evidence to

the contrary shall be admitted. A denial of such notice or

such proof shall be made specifically and with

particularity.

13. In the trial of any case appealed to the court from the

Industrial Accident Board the following, if pleaded, shall

be presumed to be true as pleaded and have been done

and filed in legal time and manner, unless denied by

verified pleadings:

(a) Notice of injury.

(b) Claim for Compensation.

(c) Award of the Board.

(d) Notice of intention not to abide by the award of the

Board.

(e) Filing of suit to set aside the award.

(f) That the insurance company alleged to have been the

carrier of the workers' compensation insurance at the

time of the alleged injury was in fact the carrier thereof.

(g) That there was good cause for not filing claim with

the Industrial Accident Board within the one year period

provided by statute.

(h) Wage rate.

A denial of any of the matters set forth in subdivisions (a)

or (g) of paragraph 13 may be made on information and

belief.

Any such denial may be made in original or amended

pleadings; but if in amended pleadings the same must be

filed not less than seven days before the case proceeds to

trial. In case of such denial the things so denied shall not

be presumed to be true, and if essential to the case of the

party alleging them, must be proved.

14. That a party plaintiff or defendant is not doing

business under an assumed name or trade name as

alleged.

15. In the trial of any case brought against an automobile
insurance company by an insured under the provisions of

an insurance policy in force providing protection against

uninsured motorists, an allegation that the insured has

complied with all the terms of the policy as a condition

precedent to bringing the suit shall be presumed to be

true unless denied by verified pleadings which may be

upon information and belief.

16. Any other matter required by statute to be pleaded

under oath.