No. 13-15-00052-CV

In the

Court of Appeals

Thirteenth Supreme Judicial District

Edinburg, Texas

ALBERTO R. GARZA AND

LETICIA I. GARZA, INDIVIDUALLY,

APPELLANTS

VS.

GARY BURCH CONSTRUCTION, INC.,

APPELLEE

REPLY BRIEF OF APPELLANTS

GARCIA & MARTINEZ, L.L.P.

Adrian R. Martinez

State Bar No. 13137600

Alberto T. Garcia III

State Bar No. 00787515

6900 N. 10th Street, Suite 2

McAllen, Texas 78504

Phone: (956) 627-0455

Fax: (956) 627-0487

ATTORNEYS FOR APPELLANTS

ACCEPTED

13-15-00052-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/13/2015 10:48:56 AM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/13/2015 10:48:56 AM CECILE FOY GSANGER Clerk
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ARGUMENT

Appellee’s brief, while lengthy, still does not identify any evidence that 

establishes the accrual date of the Garzas’ nuisance claim. To dismiss this case on 

limitations grounds, Appellee had to conclusively prove that the Garzas were 

injured by a permanent nuisance. In a related appeal (hereinafter “Garza I”) this 

Court acknowledged that there was no evidence establishing that the nature of the 

nuisance was permanent when it said “[t]he Garzas did not assert in their petition, 

nor is there any evidence in the record to suggest, that the survey or the 

‘finished floor elevation,’ having been completed in 1997, are now capable of 

being ‘repaired, fixed, or restored.’ Garza v. Melden & Hunt, Inc., No. 13-14-

00329-CV, 2015 WL 2160474 *3, May 7, 2015 (pet. filed) [emphasis added].

Without identifying any supporting evidence in the record, this Court of Appeals in 

Garza I erroneously concluded that “it is apparent that the Garzas’ claims are based 

on a permanent condition for which ‘future injury can be reasonably evaluated.’” 

Id. Because the limitations period for a permanent nuisance begins to accrue when 

injury first occurs or is discovered, this Court of Appeals in Garza I then found that 

the Garzas’ nuisance claim accrued in 2000, eight years before the Garzas filed 

suit. Id.

Appellee in this case relies entirely on this Court’s decision in Garza I. 

Appellant has filed a petition for review (Case No. 15-0460) in the Texas Supreme 
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Court in Garza I because this Court of Appeals upheld the grant of summary 

judgment without any evidence in the record that established that the nuisance was 

permanent in nature. As a defendant moving for summary judgment on the 

affirmative defense of limitations, Appellee has the burden to conclusively 

establish that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 

988 S.W.2d 746, 748 (Tex. 1999). As this Court of Appeals acknowledged in 

Garza I, there was no evidence in the record that establish whether the nuisance 

was permanent or temporary so Appellee failed to establish the accrual date of the 

Garzas’ nuisance claim.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellants respectfully 

request that this Honorable Court of Appeals reverse the MSJ Order insofar as it 

dismisses Appellants nuisance claims. 
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Respectfully submitted,

GARCIA & MARTINEZ, L.L.P.

6900 N. 10th Street, Suite 2

McAllen, Texas 78504

Phone: (956) 627-0455

Fax: (956) 627-0487

/s/ Albert Garcia

ADRIAN R. MARTINEZ

State Bar No. 13137600

adrian@garmtzlaw.com

ALBERTO T. GARCIA III

State Bar No. 00787515

albert@garmtzlaw.com

ATTORNEYS FOR APPELLANTS

CERTIFICATE OF COMPLIANCE

Per TEX. R. APP. P. 9.4(i)(3), I certify that the Reply Brief of Appellants

document received by this Court on July 13, 2015, was generated by a computer 

using Microsoft Word, which indicated that the word count of this document is 

343.

/s/ Albert Garcia

Alberto T. Garcia III
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the 

foregoing document was forwarded to the following on July 13, 2015.

Mr. Hector J. Torres Via Email hjtorrespc@att.net

LAW OFFICE OF HECTOR J. TORRES, P.C.

200 N. 12th Ave., Suite 201

Edinburg, Texas 78541

Ms. Brandy Wingate Voss Via Email brandy@appealsplus.com

SMITH LAW GROUP

820 E. Hackberry Ave. 

McAllen, TX 78501 

/s/ Albert Garcia

Alberto T. Garcia III