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Sergio Alanis, Sr. and Maria Guadalupe Alanis v. Ana Lisa Garza
Opinions in this case
- Opinion
- Opinion
NO. n4.12-QQ517-CV
IN THE FOURTH COURT OF APPEALS
AT SAN ANTONIO
SERGIO ALANIS,SR. MARIA GUADALUPE ALANIS,
SUSIE ALANIS, SERGIO ALANIS, AND ALONZO ALANIS APPELLANTS
V
JESUS MARIA ALVAREZ & ALVAREZ AND ASSOCIATES
APPELLEES
V
ANA LISA GARZA •sr. APPELLEE/INTERVENOR o o
m
1 ^ Oo'M z -r-'-j OnAppeal from the 381" Judicial District Court of -o rr ' W
Starr County, Texas \0 y-r. The Honorable Federico G. Hinojosa District Judge
Trial Court Case Number DC-00-328
APPAI.LANT'S MOTION TO REVIEW FURTHER ORDERS
TO THE HONORABLE JUDGE{S) OF SAID COURT:
COMES NOW, Sergio Alanis Sr.Appellant herein, without the aid of counsel and files his Motion to Review Further Orders.
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IN THE TEXAS COURT OF APPEALS FOURTH CIRCUIT
SERGIO ALANIS, SR. et al § APPELLANTS § vs. § APPEAL NO. 04-12-00517-CV JESUS MARIA ALVAREZ et al § APPELLEES § vs. § TRIAL COURT NO. DC-00-328 ANA LISA GARZA § APPELLEE/INTERVENOR §
APPELLANT'S MOTION TO REVIEW FURTHER ORDERS
TO THE HONORABLE JUDGE(S) OF SAID COURT: Appellant files his Motion to Review Further Orders Pro Se. Appellant moves for relief
fi*om theInterlocutory Order of the Honorable Federico G. Hinojosa District Judge. Granting
Appellee/Intervenor's Second Motion for Summary Judgment. This Appeal is pursuant under Texas Rule of Civil Procedure 42). Tex. Civ. Prac. & Rem Code § 51.014 andTRAP 29.6
Review of Further Orders.
STATEMENT OF FACTS
Sergio Alanis, Sr., and his wife Maria Guadalupe Alanis (here in after Appellant ofAlanis's) On or about NOVEMBER 06.2000 sued Jesus Maria Alvarez & Alvarez and Associates
(here inafter Mr. Alvarez orAppellee) and Ana Lisa Garza Intervenor(here inafter referred to as "Ms. Garza")(here in after collectively referred to as the "Appellees").
(1) On or about May 04,2010 Jesus MariaAlvarez & Alvarez andAssociates filed theirMotion For Summary Judgment. (2) On or aboutJune 11,2010 TheAppellant's filed their response to Defendant/Intervenor's Motion For Summary Judgment. (3) On or about August 27,2010 Ms. Garza filed their Intervenor's Motion For Summary Judgment. See Exhibit "A" pgs. 1-13.
Pg.2 (4) OnJuly 23,2012 TheTrial Court granted Ms. Garza Motion in an Interlocutory Order and later granted both motions in a Final Judgement. (5) On or aboutOctober 09,2013 Honorable Catherine Stone, ChiefJustice, Honorable Sandee Bryan, Justice andHonorable Patricia O.Alvarez Justice. REVERSED AND REMENDED to the trial court for further Proceedings. See Exhibit "B" pgs.1-5. (6) Onor about April 22,2015 Ms. Garza filed an identical Motion with thesame arguments, facts and case law, the only difference is that Ms, Garza changed the title now it is Intervenor's Second Motion for Summary Judgment. See Exhibit "C" pgs. 1-13 (7) On orabout June 11,2015 the Appellant's filed their response to Intervenor's Second Motion
for Summary Judgment and asked the court todismissed the motion onthe grounds that the Fourth Court ofAppeals had already ruled onthose arguments. See Exhibit "D" pgs. 1-13.
(8) On or about September 15,2015 the Appellant's filed a written request asking the court again to dismissed Intervenor's Second Motion for Summary Judgment. See Exhibit "E" pgs. 1-2.
(9) Onorabout October 21,2015 Judge Federico G. Hinojosa entered his Interlocutory Order, granting Intervenor's Second Motion for Summary Judgment. See Exhibit "F" pg. 1.
ARGUMENTS
This Appeal is pursuant under TRAP 29.6 Review of further orders (A) Motion to Review Further Orders. While an appeal is pending from Interlocutory Orderis pending, on a party's motion or onthe appellate court'sown Initiative, the appellate court may review the following: (1) A further appealable Interlocutory Order concerning the same subject matter; and(2) any Interlocutory Order that Interferes with or Impairs theeffectiveness of the reliefsought or that may be granted on appeal. (B) Record, Theparty filing the motion may rely on theoriginal record.
The trial court ignoredappellant's request to dismissed to Intervenor's Second Motion for Summary Judgment and ignored the FourthCourtof Appeals Order issued October09,2013. Ms. Garza is an attorney at lawand a Starr County District Judge, sheknows thatthe law of the land is:
Pg.3 When the Fourth Court ofAppeals denied her arguments, she then had the right to present her argument to the Supreme Court, but she choose not to. If this Honorable Court does not over turn the trial courts Order it will allow the appellee's and trial court to do as they please. Ms. Garza Intervenor's Second Motion for Summary Judgment is frivolous and should be overturn so this case can proceed to trial. The law is quit clear that once the higher court makes its ruling on a case it cannot be presented to the lower court again, and in this case Ms. Garza did. See Exhibits "A" and " C". and trial court granted her motion for the second time this is wrong.
PRAYER FOR RELIEF
WhereforeAppellant's humbly and respectfully pray that the Honorable Coiut Reverse/Dismissed The Order of the lower court. And Grant Appellant's Motion to Review Further Orders so this case can proceed to trail, on the material facts and law presented herein, and for any other relief this Honorable Court deems just. Respectfully Summited November 09.2015
Susie Alanis ^ Sergio srgio Alams, Sr. Pro Se Si P.O. Box 2601 and lead counsel Roma, Texas 78584 402 N. Garcia St. Rio Grande City, Texas 78582
Sergio Alanis, Jr. P.O. Box 2601 Maria Guadalupe Alams Roma, Texas 78584 P.O. Box 2601 Roma, Texas 78584
Alonro Alanis P.O. Box 2601 Roma, Texas 78584
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CERTIFICATE OF SERVICE
I Sergio Alanis Sr., do hereby certify that a true and correct copy ofthe above Instrument has been forwarded via United States Mail, with proper postage affixed and/or fax, onthis 09_ofNovember 2015 to the following attorneys of record.
Sincerely,
Jesus Maria Alvarez & Alvarez Seii^o Alanis, Sr. Pro Se and Associates and lead coimsel 501 N. Britten Ave. 402 N. Garcia St. Rio Grande City, Texas 78582 Rio Grande City, Texas 78582
Ricardo Gonzalez 124 S. 12'^Ave. Edinburg, Texas 78539
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CAUSE NO. DC-00-328
, SERGIO ALAN1Z,SR and § INTHE DISTRICtr COURT MARIA GUADALOPE ALANIZ, § § Plaintiff §
vs. ICIAL
JESUS MARIA ALVAREZ and njovn ALVAREZ & ASSOCIATES,
Defendants
ANA LISA GARZA
Intervenor STARR COUNTi .TEXAS
INTERVENOR*S MOTION FOR SUMMARY JUDGME? T
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, ANA LISA GARZA, Intervenor and Movant, in the above styled and
numbered cause and hereby files this her Motion for Summary Judgment against Plaintifr,
SERGIO ALANIZ, SR., (hereinafter referred to as "Plaintiff'), and in support of this Motion,
Intervenor would show the Court the following:
I.
This Motion for Summary Judgment is requested against Plaintiff oi i the groimds that
Plaintiffs claims are barred by the statuteoflimitations.
IL
Pursuant to Texas Rules of Civil Procedure 166a, Intervenor ANA LIJ A GARZA moves
for a summary judgment because the uncontradicted Summary Judgment evid ence establishes as
a matfptr of law that the Plaintiff's claims against Defendant JESUS MAR A ALVAREZ are
barred by the statute of limitations. EXHIBIT Intervenor's Motion for Summary Judgment "A" 1 Page 1 of 14
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m. FACTS
piainfiff premises his causes of action against Defendant on alleged £n aid and breach of fiduciary duties in relation to conveyance of the subject real property by Plair tiffs to Defendant JESUS MARIA ALVAREZ. Defendant JESUS MARIA ALVAREZ « ntends that such conv^ance was made as partial payment for legal fees paid for Defendan: JESUS MARIA
ALVAREZ'S legal representation for PlaintiflF SERGIO ALANIZ, SR. in conn *tion with federal criminal charges brought against thesame. DefendantsJESUS MARIA ALVAREZ and ALVAREZ & ASSOCIATliS filed an Answer
and a counterclaim for declaratory judgment to remove cloud on title to the su iject real property DefendantJESUS MARIA ALVAREZ later conveyedthe subject real property to Intervenor ANA
LISA GARZA for consideration, byduly executed Deed. See Exhibit "A". Inte rvenor ANA LISA GARZA claims legal ownership to the subject real property by virtue of a deet conveying title of thesame toher. The subject real property isdescribed asfollows: THE SURFACE AND THE SURFACE ONLY in and to Forty-eight i nd 48/100 (48.48) acres of land, more or less, out of forming a part of portion of the east half (E/2) of Porcion No. Eighty-Three (83 Ancient Jurisdiction of Camargo, now situated in Starr County, Texas ,and being more particularly described by metes and pounds as follows; to-wit:
BEGINNING at a point of the center line of Road, in the E/i; of the portion No.83,Camargo Jurisdiction, which is distant ,S. 26* 59' 07' E.,1340.57 feet fi^m the intersection of the dividing line between W/2 and E/2 of the Porci( >n No.83,Camargo Jurisdiction with the center line ofCharco Blanco Road, for S.W come r hereof;
THENCE N.59* 52'E. 437.22 feet, to an iron rod, for bend in line;
THENCEN. 09* 15' E., 853.54 feet, to an iron rod, for an Inner com n hereof;
THENCEN.80*45'W., 208.7 feet, to an iron rod, for a comer hereof;
THENCEN. 09*15'E.l 129.33 feet, to an iron rod, for an Inner comer lereof;
THENCE N.80*45'W., 208.7 feet, to an iron rod, foe a comer hereof;
THENCE N.09* 15' E., 458.6 feet, to an iron rod, for N.W. comer herr of;
Intervenor's Motion for Summary Judgment Page 2 of 14
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THENCE S.80*45' E., 838.9 feet, to an iron rod, for N.E comer hereof;
THENCE S.09*1S*W., 1623.11 feet, to an iron rod, for an Inner comer hereof;
THENCE S.80*45'E., 12S.0 feet, to an iron rod, for the most Easterly ^ JB comer hereof;
THENCE S.09*15'W, 752.3 feet, to an iron rod, for most Easterly S.E <omer hereof;
THENCE N.80*45'W., 125.0 feet, to aniron rod, foran Innercomer hejreof; THENCE S.09*15*W., 614.2 feet, to an iron rod, for Bend Line;
THENCE S.59*52'W., 688.1 feet, to an iron rod, for S.E comer hereof;
THENCE with the center line of Charco Blanco Road , N.23*07'W., 417.4 feet to the place of BEGINNING and containing within these metes and bounds 48.48 acres of land, more or less.
IV. COURSE OF PROCEEDINGS
On July 18, 2000, Plaintifif SERGIO ALANIZ, SR. attempted to file i uit against JESUS MARIA ALVAREZ by document entitled '^Motion to File a Complaint for Fn ud in Violation of the Laws of the Unit^ States of America" in the United States District Coiirt for the Eastern District of Texas, Texaikana Division. See Exhibit "B". On November 1 2000, the Court dismissed Plaintiffs Complaint finding that the Court lacked jurisdiction ov( r the matter. See Exhibit "C\
Thereafter, on December 18,2000, PlaintifTSERGIO ALANIZ, SR. agajin attempted to sue Defraidant, JESUS MARIA ALVAREZ by filing a "Motion for Recovery ofDai aages andClaimof
Fraud." See attached Exhibit "D". This "pleading" which consisted of one [age and only three paragtayihs alleged only fiaud as against Defendant, JESUS MARIA ALVAREZ
Plaintiff, SERGIO ALANIZ, SR did not ask for, nor was citation isst led for his July 18, 2000federal courtfiling and for his December 18,2000 statecourt filing.
Intervenor's Motion for Summary Judgment Page 3 of 14
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On Februaiy 15,2002, PlaintifTfiled an "Amended CivilComplaint forB reach of Fiduciary Duty and Fraud; Action In Rem regarding ForQr-Eight and 48/100 (48.48) ac es of land". See Exhibit "E". Theieafier, Plaintifif SERGIO ALANIZ, SR. requested servic; of citation and Defendant, JESUSMARIAALVAREZwas servedwith processofFebruary 25, 1002.
Defendant, JESUS MARIA ALVAREZ and ALVAREZ &ASSOC]{aTES filed their Original Answer on March 28,2002.
Tlierealter, on April 26, 2002, PlaintifiEs filed a "Permissive Joinder of 'arties" seeking to have added to the lawsuit Plaintifis' children Suzie Alaniz, Sergio Alaniz, Jr., and ^Alonzo Alaniz.
Finally, on January8,2010, hitervenor/Movant filedher Original Petition in Intervention.
V. DISMISSAL OF PLAINTIFFS* SUIT
On April 11, 2007, this court on its own motion dismissed the claims of all Plaintiff
SERGIO ALANIZ, SR., MARIA GUADALUPE ALANIZ, SUZIE ALANIZ, s|eRGIO ALANIZ, JR. AND ALONZO ALANIZ. See Exhibit "F'.
VI. APPEAL
An appeal was filed challenging this trial court's order of dismissal However, only SERGIOALANIZ, SR. pursued the appeal and the remainingPlaintifiTs failed to oso. See Exhibit "G" pg. 1. Ihe AppellateCourt rev»:sedthe trial court's order ofdismissal and remanded the case as to Sergio Alaniz, Sr. only. See Exhibit "G" pt^es 5 & 6.
vn. CURRENT PARTIES
Therefore, the only Plaintiffin this lawsuit is SERGIO ALANIZ, SR. Th i Defendant in this
lawsuit is JESUS MARIA ALVAREZ D/B/A ALVAREZ &ASSOCIATES anjl the Intervenor is, ANA LISA GARZA, Movant herein.
Intervenor's Motion for Summary Judgment Page 4 of14
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vra. INTERVENTION
Intervenor ANA LISA GARZA hasa justiciable interest in the matters in »ntioveisy in this litigation because she isdiel^al owner, under dufy executed deed, ofthereal pn peity wfaidi is the basis ofthis suit See Exhibit "A",
The real property which is the basis of this suit was conveyed to Inteifrenor ANA LISA GARZA, for consideration, after PlaintiiF voluntarily conveyed the same to Defendant JESUS
MARIA ALVAREZ.
IX. STATUTE OF UMTTATIONS
The Plaintiff'current pleading alleges breach of fiduciary du^ and fiaud
A cause of action for breach of fiduciary dnty has a four year statute o: limitations. Civil Practice and Remedies Code, §16.004(a)(5).
The cause of action for fiaud also has a four year statute of limitations Civii Practice & Remedies Code, §16.004(a)(4).
PlaintiflPs causes ofaction are barred by the statute oflimitations. PlaiAtiffcomplains that Defendant breached its fiduciary duty to Plaintiffand further committed fiaud b rthe act ofcausing the deed referenced in his petition tobe signed infevor ofDefendant This deed complained ofwas signed by Plaintiffon February 5, 1998 and filed with the County Clerk on Febi uary 12,1998. See Exhibit "E",Plaintiff's Amended Complaint pages 10-11 andDeed attached as Exhibit "H".
A review of the fects stated above as well as the relevant dates cleirly reveal that the
Plaintiff' causes ofaction are set out on page 5 and 6 ofhis amended civil complaint e lists as an additional cause of action "Action In Rem." This is not an independent cause of action, butthis teclUnical termis generally "...applied toactions between parties, where the direct object istoreach and dispose ofpro]ip !ity owned by them..."
Intervenor's Motion for SummaryJudgment Page S of 14
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Plaintiflfs suit for fiaud and fiduciary duty were filed more than four years after tle Deed was filed and thus his suit is barred bythe statute oflimitations.
Section 13.002 ofthe Texas Property Code states in relevant part that "Ar instrument that is properly recorded in the proper county is: (I) notice to all persons of the exist^ce of the instrument..." See attached ExhibitT'.
The Plamtiff voluntarily signed the Warranty Deed complained of on February 5, 1998.^ See Exhibit "E" - Plaintiffs Amended Complaint page 11 and Exhibit "H" - Warranty Deed. Therefore, according to the Property Code Section 13.002 and case law analjzing this section. Plaintiffwas placed on notice no laterthan February 12,1998 that he had acause (.r causes ofaction against Defendant. Plaintiffsfailure to file his lawsuit within four years ofthe sti tute oflimitations bars his lawsuit fixrm poceeding as against Defendant or any ofother interested p rties. X.
The pleadings on file in this lawsuit, as well as the court's docket shes t and the citation issued to the Defendant, show that there is no issue as to any material fact an 1that Intervenor, ANA LISA GARZA is entitled to judgment as amatter oflaw. Intwvenor AN \ LISA GARZA fiirther supports her Motion for Summary Judgment on the undisputed evidem eoutlined herein and sets forth the relevant case law, which, as amatter oflaw, entitles her to jud pnent. XI.
The following exhibits are attached hereto and made part ofthis motion; 1. Exhibit"A"-Deed;
1. ExUbit "B" - Motion to File a Complaint for Fraud in Violation (fthe Laws ofthe United States of America;
•Haintiirappears to admit that the signature is his, but also states that he did not know that he ^ajntm was] not mfonned that awarranty deed was being signed..." SeeFrftfbit "H" page 1 [was signing a deed. Intervenor's Motion forSummary Judgment Page 6 of 14
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2. Exhibit "C"- Final Judgment; 3. Exhibit "D" - Motion for Recovay ofDamages and Claim ofFia id; 4. Exhibit "E" - Amended Qvil Complaint for Breach of Fiducial) Duty uui and Fraud; Action In Rem regarding Forty-Eight and 48/100 (48.48) acres of1md; 5. Exhibit"F'-Court's Motion and OrderofDismissal for Lack ojprosecution; 6. Exhibit "G" —Memorandum Opinion; 7. Exhibit "H"-Deed; 8. Exhibit'T' - Texas Property Code §13.002; and 9. Exhibit *T' - Docket Sheet.
m
Movant believes that the Plaintiff's causes of action as against Defeidant are clearly barred by the statute oflimitations as they were not filed timely. However, and in the alternative, should the Court beUeve that the Plaintiff's initial state court pleading filed <>n Decmber 18, 2000, constitutes atimely filing ofthe finud cause ofaction then Movant wouli 1show this Court that Plaintifffailed to use due diligence in seeking to have the lawsuit served U]Ifon Defendant A review ofthe attached Docket Sheet clearly indicates that the Plaintiff did not ever seek service ofcitation for the December 18,2000 filing. It was not until his Amended Ci\ il Complaint was filed, after the statute oflimitations had run, that Plaintiffsought service upon Eefendant. As a matter of law, the Plaintiff did not use due diligence in procur ing issuance and service of citation to Defendant JESUS MARIA ALVAREZ. Adefendant who conclitsiveiy establishes aU the elements of an afitanative deftnse is entitled to asumma yjudgment as a matter oflaw. Cathevvs. Booih. 900S.W. 2d339,341 (Tex.1995).
Intervenor's Motion for Summary Judgment Page 7 of 14
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xm. LEGAL AirmOMTY
Plaintiffs delay in serving Defendant constitutes a lack of due diliger ce as a matter of law. gflit/ w. De Leon. 786 S.W. 2d 259, 260 (Tex.1990); Gonzalez vs. Phoenix Frozen Foods. Inc.. 884S.W.2d 587(TexApp.^orpus Chrisd 1994, no fvrit).
The established rule is that the filing of a suit will not toll the statute of limitations. Rieo Mfe. Co. vs. Thomas. 458 S.W. 2d 180,182 (Tex, 1970). To toll the statut; of limitations, a Plaintiffmustnot only file suit within the limitations period, but mustalsoexei cise due diligence
in procuring the issuance and service ofcitation. Gant w. De Leon. 786 S.0(. 2dat 260. The required standard of diligence is that diligence which an ordinary prudent p uson would have
used under the same or similar circumstances. Gonzalez vs. Phoenix From \ Foods. Inc.. 884 S.W.2d at 590. The existence of diligence is generally a question of fact, bu if the time lapses and the Plaintiff's acts conclusively negate diligence, a lack of due diligence [will be found as a matter of law. Hansler vs. Mainka. 807S. W. 2d3,5 (Texuipp.'Corpus Chi isti, no writ). See also Taylor vs. Thompson. 4 S. W. 3d 63(Tex. App. - Houston [l" DistJ199ipet'n denied).
Texas courts have routinely dismissed lawsuits for the failure of Pitintiff to diligently serve Defendant For example, in Hansler vs. Mainka. 807 S.W. 2d 3 (Civ. App. - Corpus ChrisH1991,no writ history), the Court ofAppealsafBrmed a take nothingjudgmentin favor of Mainka after finding limitations barred Hansler's suit. Hansler filed suit ( n August 8, 1988 within the period of limitations, however, Hansler did not issue a citation unti February 1,1989, over five (5) months after filing the lawsuit. The court held that the delay of five (5) months was, as a matter oflaw, not due diligence inprocuring issuance and the servic^ of citation. Thus, Hansler's suit was barred by the statute of limitations. 807 S. W. 2d at 5. See also AUen v.
Bentlev Laboratories.Inc.. 538 S. W. 2d 857 (Civ. App. - San Antonio, 1976. writ ref*d n. r. e.) Intervenor's Motion for Summary Judgment Page 8 of 14
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(Six mollB betwea,filing and sarvice); ms. w. 2dSiSX^ .Wk», 1939, wit r^d) (3 3/4 months between fiiing and issuance ofcitation and on. months between issuance and service). Furthermore, in gnmam. v S7t S. IF. 2d 448 (Civ. App, - gonuunll'DUt„979.no ^UsL). the unexplained delay in service ofeitLon in exc«iof sh. months was as amatter oflaw. not due diUgence in ptocuring the issuatv* and service of citation. S73& V. 2d434(0,.App..HonoUmlld^DlsLi1975, mUroTdn.e.). In addition, other mont recent cases further delineate what is asf dui Hii e : gee rayfapap/»np.pm, 4S. m3d53, 55 (To. App .Honsnn.fl' DUOJL,pec Denied, (AaSimingsummaiy judgmemin ftvorofDefendantwhemPlaint trsfiledPetitionfourmonths beforestatute ranbutdid nothavethe Defendantserved untU one(I) weekaftithe statute ran); ft-MdUe, ,. npen^n A fpr, 13S. W. 3d47, 49-50 fr« J -idn Anmio 1999, pet denied) (Afiamiing Summaty Judgment for Defendants on the btsis that Plaintiff fidledto showduediligencedespite filingsuit eleven(11)daysbefore thestanje tanbutdid not senteDefendants until three and one-half(3 2) weeks afterthe statute tan). J amatteroflaw. due diligence was not used by the Plaintiffin order to effectuate service on Jefendant. JESUS MARIA ALVAREZ.
It is the responsibility ofthe party requesting service to ensure that service is properly Conetrpnion, Ipc., y,. tS4 S. W. 2d 151, 152 (rex.1994); AtdUar te. mS.W.2d955 (Ten.App.HonsU,n (l"DU,1995, no L.The Court! have consistently held that delays in obtaining service constitutes alack ofdie diUgence as a l^mn^HneeioUee P.. v. ^rmoUnnne.,... . 3d420(re.App.Pt Word, 1995, ^denied, fflixmmtefa); HoneUr otlLZo n.
Intervenor's Motion for SummaryJudgment Page 9 of 14
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2^,3 (TexApp.-€orpus Christi1991, no writ), (Five months): Allen vs. Bent lev I^horatnrlpx. 538, S.W. 2d857(Tex.CivApp.-SttnAntonio, 1976, writrefdn.r.e.) (Sixnun tks). If this Court considers the December 18, 2000 pleading filed by the Plaintiff on
December 18, 2000 as being filed within the statute of limitations, Movant would show this
Court that Plaintifffailed to exercise due diligence inseeking service ofprocess on this pleading. Areview ofthe attached Docket Sheet {Exhibit'T*) clearly shows that proces s was not sought until after February 15,2002, in fact the Docket Sheet reflects that the Defends ntwasnot served
with process until February 25, 2002. Hie initial state court complaint {Exhii it "D") was filed on December 18, 2000. Thus, the record clearly reflects that Defendant was not served with
process until one year and two months after the initial state court pleading. Ansview ofthe cases cited above clearly shows that one year and two months does not constitute lue diligence and that therefore Plaintiffs cause ofaction, even under the initial state court pi© ding is barred by the statute of limitations.
The Plaintiffdidnotuse duediligence in serving Defendant JESUS My JUA ALVAREZ. Accordingly, Plaintiff's claims against Defendant JESUS MARIA ALVyJlEZ are barred pursuant to the foiu year statute of limitations. See Civil Practice am Remedies Code 16.004(a)(4).
XIV. CONCLUSION
The aforementioned and undisputed summary judgment evidence demonstrates that
Defendant, JESUS MARIA ALVAREZ is not liable to the Plaintiff SERGIO ALANIZ, SR. based onthe expiration of the statute of limitations. Defendant JESUS MARl \ ALVAERZ and
Intervenor ANA LISA GARZA are entitled to a sununary judgment as amatte roflaw since they
Intervenor's Motion for SummaryJudgment Page 10 of 14
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r have conclusively proved their aflfinnative defense. Parkolace Hosoihd vx. iate ofMUo. 909 S. W. 2d508,509(Tex.1995).
XV. RELIEF REOIJRSTFn
Intervenor therefore requests that declaratoryjudgment be entered as folio vs: 1) That Defendant JESUS MARIA ALVAREZ, by virtue ofthe coi veyance made by PlaintiflFSERGIO ALANIZ, SR. to Defendant JESUS MARIA ALVAREZ, be d»lared as the sole and lawful owner ofthe above-described property and that aiq' and all clouds of itle created by the filing of the fiivolous lis pendens by Plaintiffs and subsequent deeds execute! by Plaintiflfe be removed;
2) That the Plaintiffs causes ofaction as against Defendant and Int ^enor are barred by the statute oflimitations.
3) That Intervenor ANA LISA GARZA, by virtue of subsequent xinveyance of the
subject real property byDefendant JESUS MARIA ALVAREZ to Intervenor At FA LISA GARZA, be declared as the sole and lawful owner ofthe above-described property and thai any and all olonds on title created by the filing ofthe fiivolous lis pendens by Plaintiffe, by subsequ art deeds byPlaintiffe, and byfiling of this lawsuit, beremoved.
WHEREFORE, PREMISES CONSIDERED, Intervenor and Mo'^ant ANA LISA GARZA, prays that this motion be set for hearing, and that upon said hearinj, the court enter a final judgment that the Plaintiff take nodiing in this suit against Defendar t JESUS MARIA ALVAREZ, that Intervenor ANA LISA GARZA recover costs fiom >laintifr and that Intervemor ANA LISA GARZA obtain such other and further relief as specific dabove and to
Intervenor's Motion for Summary Judgment Page }I of 14
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•r which she may bejustly entitled.
Respectfully Submitted,
ROERIG, OLIVEIRA &FlSHEk L.L.P. 10225 N. 10*^ Street McAUen, Texas 78504 Tel. (956) 393-6300 Fax (9561) 386-1625 _ _
Victor V. Vicinaiz Texas Bar No,: 20562300
CERTIFICATE OF SERVfrF.
I, the undersigned, hereby certify that on this 27^ day ofAugust 2010 i1true and correct copy ofthe foregoing document has been forwarded to opposing counsel as folh >ws VIA CMRRRand Regular Maili Sergio Alaniz, Sr. ID No. 79825-079 GB Federal Prison Camp P.O. Box 26010 Beaumont, Texas 77720-6010
VIA REGULAR MAIL; J. M. Alvarez 501 N. Britton Ave. Rio GrandeCity, Texas 78582
VIA REGULAR MAIL: Ana Lisa Garza THE LAW FIRM OFANA LISA GARZA, P.L.L.C. 509 N. San Antonio Rio Grande City, Texas 78582
vl iJ i.. Victor V. Vicinaiz
Intervenor's Motion forSummaiy Judgment Page 12 of 14
jfonrti) Court of 9ppealsf ,•#*^111 'Antonio, tttr.xasf
IMKIVIOKANDUM OPINION
No. (I l-I2-005I7-( 'V
SiTj'Jo ALANIS. Si . Appcllanl
V.
Jesus Maria ALVARIC/. Aharc/ tt Associates, and Ana l.i.s.i (iar/a. Appellees
From the 381stJudicial Disli iei ('mirt, Starr County, Texas Trial Court No. l)t'-00-328 The Honorable Federico Iliiiojosa. Judge Presiding
Opinion by; Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Patricia O. Alvarez, Justice
Delivered and Filed: October 9,2013
REVERSED AND REMANDED
On December 18, 2000, appellant, Sergio Alanis, who was pro sc below and on appeal, filed a "Motion for Recovery ofDamages and Claim ofFraud" ("motion for recovery") naming only Jesus Maria Alvarez as a "defendant." This "motion for recovery" raised no causes ofaction or claims for relief, but stated Alanis would file his complaint for fraud against the defendant for recovery ofreal property. On February 15, 2002, Alanis filed a "Civil Complaint for Breach of Fiduciary Duty and Fraud; Action in Rem Regarding Forty-Eight and 48/100 (48.48) Acres of EXHIBIT "B"
04-12-00517-CV I.and" ("complaiiil") iiaining Jesus Maria Alvauv .iikI Alvarez & Associales as defendants (collectively, "Alvare/."). In his complaint, Alanis alK.-j-i-d Alvarez, who had represented him in various legal matters since 1991, (1) breached a lidm lary duty to him by unlawlully taking and
conveying Alanis's real property into the sole ownerslii|> t)f Jesus Alvarez on hehruary 12, 1998, and (2) fraudulently concealed the conversion of the pmperty. Alanis asserted he did not heetnne
aware ofthe conveyance until December 1,1999. Alanis served Alvarez on hebruary 25, 2002.' On January 8,2010, appellee Ana Lisa Garza intervened asserting she was the current legal owner of the real property by virtue of a conveyance from Jesus Alvarez.
In .separate motions, Alvarez and Garza moved for summary judgment on the affirmative defense »d limilalion.s, arguing Alanis's suit was barred by the lour year slalute of linutatioiis a|)plieahle In Ineaeli of liduciary duty and fraud claims heeau.se the lieed ahoiil whieh Alanis complained was signed l>y Alanis on February 5,1998 and filed with the county eleik on hebiuary 12, lOOX, hut Alanis did not file his "complaint" until February 15, 2002. Alternatively, Alvarez and (iar/.a argued that ifthe trial court accepted the December 18, 2000 "motion for recovery" as timely initiating .suit, then Alanis's claims were still time-barred because Alanis failed to u,se due ililigenee by not obtaining service on Alvarez until February 25, 2002. Ihc trial court granted Garza's motion in an interlocutory order and later granted both motions ina final judgment. DISCUSSION
Tlie standard for reviewing a traditional summary judgment iswhether the movant earned its burden ofshowing there is no genuine issue ofmaterial fact and judgment should be granted as a matter of law. KPMG Peat Manvick v. Harrison County Housing Finance Corp., 988 S.W.2d
' In 2007, the trial court dismissed Alanis's lawsuit for want ofprosecution. This court reversed the order and remanded for further proceedings. See Alanis v. Alvarez, No. 04-08-00221-CV, 2009 WL 962535 (Tex. App. San Antonio Apr. 8,2009, no pet.) (mem. op.).
2-
(I I I .' (HI M / ( \'
7-lf). 748 ( lex. 1999). When. ;i.s liciv. the defendant nuivc.s lor summary jiidymcul <iii iIk- alHrmalive defense of limilalion.s, the nuivant bears liu" iniitlen to conclusively c.stabiisii ihat
defense. Id. Thus, the defendant must (I) conelusively pioN c when the cause ol action accrucil. and (2) negate the discovery rule, ifit appiiis and has been pl<-;uled or otherwise raised, by proving as amatter oflaw that there is no genuiiK' isMie ot material lai i.ibout when the plainlill diseoveicd, or in the exercise of reasonable dilip.fm e should have dra overcd the nature ol its injury, /r/., roUcr V. Kaufhum df linnitl Home Svs oj lex., hie. I WS.W Id 701. 7()-l (lex. App. Sail Aiiliiiiiii .'(ill l. MM pel ). II llie iiinv.iiil e.slablishcs lli.it the .slaliile ol liiiiil.ilioii.s bais the aelion, the iionmovant must then adduce summary judgmeiii proof raising a fact issue in avoidance ot the statute of limitations. KPMG Peat Manvick, 988 S W.2d at 748.
In his complaint, Alanis stated several limes that he did not become aware of the conveyance until 1999, thus raising the application ol the discovery rule. If the discovery rule applies to defer or toll the running of the slalole of limitations, then Alanis timely filed his complaint and served Alvarez within the limitations period.^ However, in their summary judgment motions, neither Alvarez nor Garza attempted to negate the discovery rule. Therefore, they were not entitled to summary Judgment as a matter of law on their affirmative defense oflimitations. Accordingly, we reverse the trial court's judgment and remand for further proceedings.
Sandee Bryan Marion, Justice
^See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) ("When a plaintiff files a petition within the limitations period, but does not serve the defendant until after the statutory period has expired, the date ofservice relates back to the date of filing ifthe plaintiffexercised diligence ineffecting service.").
M
jfourll) Court of Jlppealsf ^an ilntonio, ticxas
JUDGMENT
No. 01-I2-005I7-( V
SiT(>i<) ALANIS, Si . • AppclliiDl
V.
Jesus Maria ALVAREZ, ami .Alvarez & Associates, Appellee-;
From the 381st Judicial District ( mirt, Starr County, Texas Trial Court No. I)t '-00-328 The Honorable Federico Iliiiojosa. Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUS TK I MARION, AND JUSTICE ALVAREZ In accordance with this court's opinitm of this date, the trial court's judgment is REVERSED and the cause REMANDED to the trial court for further proceedings. Because appellant is indigent, costs are assessed against the party that incurred them. SIGNED October 9,2013.
Sandee Bryan M^on, Justice
MANDATE
THE STATE OF TEXAS
TO THE 381ST JUDICIAL DISTRICT COURT OF STARR COUNTY, GREETINGS:
Before our Court of Appeals for the Fourth District of Texas on October 9, 2013, the cause upon appeal to revise or reverse your judgment between
Sergio Alanis, Sr., Appellant V. Jesus Maria Alvarez, and Alvarez & Associates, Appellee
No. 04-12-00517-CV and Tr. Ct. No, DC-00-32/^ was determined, and therein our said Court ofAppea^^madeiits order in these words: In accordance with this court's opihiOn df this date, the trial court's judgment is REVERSED and the cause REgiANDED to the trial court for further proceedings. Because appellant is indigent, costs are assessed against the party that incurred them. WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth District of Texas, in this behalfand in all things have the orderduly recognized, obeyed, and executed.
WITNESS the Hon. Catherine Stone, Chief Justice of the Court of Appeals for the Fourth District of Texas, with the seal of the Court affixed and the City of San Antonio on December 18,2013.
KEITH E. HOTTLE, CLERK X OF
f r i i • Cynthia A. Martinez % /q, ^ Deputy Clerk, Ext. 3853 1J
dc-00-328 piigj. 5 , o:37:00 AM Starr County -District Clerk !i°y Starr County, Texas ^ierk
^ »v,« Yarithza Saenz CAUSE NO. DC-00-328
SERGIO ALANIZ, SR. and § IN THE DISTRICT COURT MARIA GUADALUPE ALANIZ, § fi 9 PlaintiiBs § § vs. § 381*'JUDICIAL DISTRICT § JESUS MARIA ALVAREZ and § ALVAREZ & ASSOCIATES, § § Defendants § § ANA LISA GARZA § § Intervenor § STARR COUNTY, TEXAS
INTERVENOR'S SECOND MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, ANA LISA GARZA, Intervenor, in the above styled and numbered causeand herebyfiles this her Second Motion for Summaiy Judgment against Plaintifi^ SERGIO ALANIZ, SR., Qiereinafter referred to as "PlaintifPO, and in support of this Motion, Intervenor would show the Court the following:
I.
This Motion for Stunmaiy Judgment is requested against Plaintiff on the grounds that Plaintiffs claims as Intervenor are barred by the statute oflimitations.
n.
Pursuant to Texas Rules of Civil Procedure 166a, Intervenor, ANA LISA GARZA, moves for a summary judgment because the uncontiadicted Summaiy Judgment evidence establi^es as a matter of law that the Plaintiffs claims against Intervenor ANA LISA GARZA are barred by the statute oflimitations. EXHIBIT
Defendants' Motion for Summaiy Judgment Page 1 of 13
m. FACTS
Plaintiff premises his causes of action against Defendant JESUS MARIA ALVAREZ on alleged fraud and breach offiduciaiyduties in relation to conv^ance of the subjectreal property by Plaintifif to Defendant JESUS MARIA ALVAREZ on February 5, 1998. Defendant JESUS MARIA ALVAREZ contendsthat such conveyance wasmadeas partial paymentfor legalfeespaid for Defendant JESUS MARIA ALVAREZ'S legal representation for Plaintiff SERGIO ALANIZ, SR. in connection with federal criminal charges brought againstfee same. Defendants JESUS MARIA ALVAREZ and ALVAREZ & ASSOCIATES filed an Answer
and a counterclaim for declaratory judgment to remove Cloudon Title to fee subjectreal propeily. Defendant JESUS MARIA ALVAREZ convoked the subject real property to Intervsior ANA LISA GARZA for consideration, by duly executed Deeddated February 5.1998 real Deed Record of Starr County Texas Volume 599, Page 68. See Exhibit "A." Intervenor ANA LISA GARZA claimslegal ownership to the subjectreal property by virtue ofa deed conveying title ofthe sameto her. The subject real property is described as follows:
THE SURFACE AND THE SURFACE ONLY in and to Forty-eight and 48/100 (48.48) acres of land, more or less, out of forming a part of portion of the east half (W2) of Porcion No. Eighty-Three (83 Ancient Jurisdiction of Camargo, now situated in Starr County, Texas ,and being more particularly described by metes and bounds as follows; to-wit:
BEGINNING at a point of the center line of Road, in the E/2 of the portion No.83,Camargo Jurisdiction, which is distant ,S. 26* 59' 07' E.,1340.57 feet from the intersection of the dividing line between W/2 and E/2 of the Porcion No.83,Camargo Jurisdiction with the center line of Charco Blanco Road, for S.W comer hereof;
THENCE N.59* 52'E. 437.22 feet, to an iron rod, for bend in line;
THENCE N. 09* 15' E., 853.54 feet, to an iron rod, for an Inner comer hereof;
THENCE N.80*45'W., 208.7 feet, to an iron rod, for a comer hereof;
THENCE N. 09*15'E.l 129.33 feet, to an iron rod, for an Inner comer hereof;
THENCE N.80*45'W., 208.7 feet, to an iron rod, foe a comer hereof;
Defendants' Motion for Summary Judgment Page 2 of 13
THENCE N.09* 15' E., 458.6 feet, to an iron rod, for N.W. comer hereof;
THENCE 8.80*45' E., 838.9 feet, to an iron rod, for N.E comer hereof;
THENCE 8.09*15'W., 1623.11 feet, to an iron rod, for an Inner comer hereof;
THENCE8.80*45'E., 125.0 feet, to an iron rod, for the most Easterly N.E comer hereof;
THENCE8.09*15'W, 752.3 feet, to an iron rod, for most Easterly 8.E comer hereof;
THENCEN.80*45'W., 125.0 feet, to an iron rod, for an Inner comer hereof;
THENCE 8.09*15'W., 614.2 feet, to an iron rod, for Bend Line;
THENCE8.59*52'W., 688.1 feet, to an iron rod, for S.E comer hereof;
THENCE with the center line of Charco Blanco Road , N.23*07'W., 417.4 feet to the place of BEGINNING and containing within these metes and bounds 48.48 acres of land, more or less.
IV. COURSE OF PROCEEDINGS
On July 18, 2000, Plaintifr SERGIO ALANIZ, SR. attempted to file suit against JESUS MARIA ALVAREZ by document entitled "Motion to File a Complaint for Fraud in Violation of the Laws of the United States of America" in the United States District Comt for the Eastern District of Texas, Texaricana Division. See Exhibit "B". On November 9, 2000, the Court dismissed Plaintifi's Complaint fmding that the Court lacked jurisdiction over the matter. See Exhibit
Thereafter, onDecember 18, 2000, PlaintiffSERGIO ALANIZ, SR. again attempted to sue Defendant, JESUS MARIA ALVAREZ byfiling a "Motion for Recovery ofDamages and Claim of Fraud." See attached Exhibit "D". This "pleading" which consisted of one page and only three paragr^hs alleged only fraud as againstDefendant, JESUS MARIA ALVAREZ.
Plaintiff, SERGIO ALANIZ, SR. did not ask for, nor was citation issued for his July 18, 2000 federal court filing andforhisDecember 18,2000 statecourt filing.
Defendants' Motion for Summaiy Judgment Page 3 of 13
On February 15, 2002, Plaintifffiled an "Amended Civil Complaint fijr Breach ofFiduciary Duty and Fraud; Action In Rem regarding Forty-Eight and 48/100 (48.48) acres of land". See Exhibit *E . Thereafter, Plaintifir SERGIO ALAMIZ, SR. requested service of citation anH Defendant, JESUS MARIA ALVAREZ was served with process oiFebruary 25, 2002. Defendant, JESUS MARIA ALVAREZ and ALVAREZ & ASSOCIATES filed then- Original Answer on March28, 2002.
Thereafter, on April 26, 2002, Plaintifis filed a "Permissive Joinder ofParties" seeking to have added tothe lawsuit Plaintifife' children Suzie Alaniz, Sergio Alaniz, Jr., and Alonzo Alaniz. Finally, on January 8, 2010, Intervenor Ana Lisa Garza filed her Original Petition in Intervention.
V. DISMISSAL OF PLAINTIFFS* SUIT
On April 11, 2007, this court on its own motion dismissed the claims of all Plaintiflfe - SERGIO ALANIZ, SR., MARIA GUADALUPE ALANIZ, SUZIE ALANIZ, SERGIO ALANIZ, JR. AND ALONZO ALANIZ. See Exhibit "F'.
VI. APPEAL
An appeal was filed challenging this trial court's Order of Dismissal. Only SERGIO ALANIZ, SR pursued the appeal and the remaining Plaintiffe foiled to do so. See Exhibit "G" pg. 1. The Appellate Court reversed file trial court's Order ofDismissal and remanded the case as to Sergio Alaniz, Sr. only. See Exhibit "G" pages 5&6.
Defendants' Motion for Summary Judgment Page 4 of 13
VIL CURRENT PARTIES
Therefore, the only Plaintiffin this lawsuit is SERGIO ALANIZ, SR. The Defendant in this lawsuit is JESUS MARIA ALVAREZ D/B/A ALVAREZ & ASSOCIATES and Intervenor, ANA LISA GAR2A's via her Petition in Intervention.
vin. STATUTE OF LIMITATIONS
The Plaintiff* current pleading allies breach offiduciaty du^ and fraud.' A cause of action for breach of frduciaiy duty has a four year statute of limitations. Civil
Practiceand Remedies Code, §16.004(a)(5).
The cause of action for fraud also has a four year statute of limitations. CivilPractice & RemediesCode, §16.004(aX4).
Intervenor was a necessary par^ who should have been included in tire Original State
Action. PlainthTs causes of action are barred bythe statute oflimitations. Plaintiffcomplams that Defendant breached its fiduciary duty to PlaintifT and further committed fraud bythe act ofcausing the deed referenced in his petition to besigned infavor ofDefendant This deed complained ofwas signed by Plaintiffon Febraary 5, 1998 and filed with the County Clerk onFebruary 12, 1998. See Exhibit "E",PlaintifTs Amended Complaint pages 10-11 andDeed attached asExhibit "H".
A review of the facts stated above as well as the relevant dates clearly reveal that the Plaintiffs suit for fraud and fiduciary duty were filed more than four years after the Deed was filed and thushis suit is barred by the statuteof limitations.
PlaintiiTs' causes of actioQ are setout on page 5 and 6 of his amended civil complaint He lists as an additional cause of action "Action In Rem." This is not an independent cause of action, but this technical term is generally "...applied toactions between parties, where thedirect object istoreach and dispose of property owned bythem..." Bla^^sIjwDictionaty,^''' Edition. Defendants' Motion for Summary Judgment Page 5 of 13
Section 13.002 ofthe Texas Property Code stat^ in relevant part that "An instrument [Deed Recorded December 12, 1998] that is properly recorded in the proper county is: (1) notice to all persons ofthe existence ofthe instrument..." SeeattachedExhibit "I".
The PlaintilT voluntarily signed the Warranty Deed complained of on Februaiy 5, 1998.^ See Exhibit "E" - Plaintiffs Amended Complaint page 11 and Exhibit "H" - Wairanty Deed. Therefore, according to the Property Code Section 13.002 and case law analyzing this section, Plaintiffwas placed on notice no later than February 12,1998 that he had acause or causes ofaction against Defendants. Plaintiff's &ilure to file his lawsuit within four years of the statute of limitations bars his lawsuit fix>m proceeding asagainst Defendants.
IX.
Intervenor was not sued by the Plaintifftimely. Intervenor isRecord holder ofreal property in dispute and a necessary party.
X.
The pleadings on file in this lawsuit, as well as the court's docket sheet and the citation issued to the Defendant, Alvarez, Intervenor will show that there is no issue as to any material feet and she is entitled to judgment as a matter oflaw. Intervenor further supports their Motion for Summary Judgment on the undisputed evidraice outlined herein and sets forth the relevant case law, which, as amatter oflaw, entitles her to judgment.
XI.
The following exhibits are attached hereto and made part ofthis motion: 1. Exhibit "A"- Deed; (December 12, 1998)
signature Is his, but also states that hedid not know that he was signing a deed.
Defendants' Motion forSummary judgment Page 6 of 13
2. Exhibit "B" —Motion toFile a Complaint for Fraud in Violation of the Laws of the United States ofAmerica; (July 18,2000) 3. Exhibit "C"- Final Judgment; 4. Exhibit "D" - Motion for Recovery ofDamages and Claim ofFraud; (November 6 2000)
5. Exhibit "E" - Amended Civil Complaint for Breach of Fiduciary Duly and Fraud; Action In Rem regarding Forty-Eight and 48/100 (48.48) acres of land; (February 18)2002)
6. Exhibit F —Court's Motion and Order ofDismissal for Lack ofProsecution; 7. Exhibit "G"—Memorandum Opinion; 8. Exhibit "H"- Deed; (January 17,2007) 9. Exhibit "I"- Texas Property Code §13.002; and 10. Exhibit "J" - Docket Sheet.
xn.
The Plaintiff's causes ofaction as against Intervenor and Defendant, Alvarez, are clearly barred by the statute oflimitations as they were not filed timely. However, and in the alternative, should the Court believe that the Plaintiff's initial state court pleading filed on December 18, 2000, constitutes atimely filing ofthe fraud cause ofaction then Movant would show this Court that Plaintiff failed to use due diligence in seeking to have the lawsuit served upon Defendant, Alvarez, Areview ofthe attached Docket Sheet clearly indicates that the Plaintiff did not ever seek service ofcitation for the December 18, 2000 filing. It was not until his Amended Civil Complaint was filed, after the statute of limitations had run, that Plaintiff sought service upon Defendant, Alvarez.
As a matter oflaw, the Plaintiff did not use due diligence in procuring issuance and service of citation to Defendant JESUS MARIA ALVAREZ. Adefendant who conclusively
Defendants' Motion for SummaiyJudgment Page 7 of 13
establishes all the elements of an affinnative de&nse is entitled to a sununary judgment as a matter oflaw. Caikevvs. Booth. 900 &W. 2d339,341 (Tex.1995).
xni. LEGAL AUTHORITY
Plaintiffs delay in serving Defendant constitutes a lack of due diligence as a matter of law. Gant vs. De Leon. 786 S.W. 2d 259, 260 (Tex.1990); GonrjUez vs. Phoenix Frozen
Foods. Inc.. 884&W.2d 587 (Tex.App.-Corpus Chrlsti 1994, no writ). The established rule is that the filing of a suit will not toll the statute of limitations. Rieo
Co. vs; Thomas. 458 S.W, 2d 180,182 (Tex. 1970). To toll the statute of limitations, a Plaindifmust not only file suit within the limitations period, but must also exercise due diligence in procuring the issuance and service of citation. Gant vs. De Leon. 786 S.W. 2d at 260. The
requued standard of diligence is that diligence which an ordinary prudent person would have used underthe same or similar circumstances. Gonzalez vs. Phoenix Frozen Foods. Inc.. 884
S.W.2d at590. The existence ofdiligence is generally a question offact, but ifthe time lapses and the Plaintiff's acts conclusively negate diligence, a lack ofdue diligence will be found as a matter oflaw. Hansler vs. Mainka. 807& W. 2d3, 5 (TexApp.-Corpus Christi, no writ). See also Taylor vs. Thompson. 4S. W. 3d63 (Tex. App.-Houston fl"DistJ1999, pet'n denied). Texas courts have routinely dismissed lawsuits for the failure of Plaintiff to diligently serve Defendant For example, in Hansler vs. Mainka. 807 S.W. 2d 3 (Civ. App. - Corpus Christi1991, no writ history), the Court ofAppeals affirmed atake nothingjudgment in fevor of Mainka after finding limitations barred Hansler's suit Hansler filed suit on August 8, 1988 virithin the period oflimitations, however, Hansler did not issue acitation until February 1,1989, over five (5) months after filing the lawsuit The court held that the delay of five (5) months was, as a matter oflaw, not due diligence in procuring issuance and the service ofcitation. Thus, Defendants' Motion for SummaryJudgment Page 8 of 13
Hansler's suit was barred by the statute of limitaticns. m S, W, 2d at 5. See also Aden v.
BentlevLaboratories, Inc., 538S. W. 2d857(Civ. App. -San Antonio, 1976, writrefdn. r. e.) (Six months between filing and service); Buie v. Couch. 126 S. W. 2d 565 (Ov. App. - Waco, 1939, writ r^d) (3 3/4 months between filing and issuance of citation and one months between issuance and service). Furthermore, in Hamilton v. Goodson. 578 S. W. 2d 448 (Civ. App. - Houston [1^ Dist.J 1979, no writ hist.), the unexplained delay in service of citation in excess of six months was as a matter oflaw, not due diligence in procuring the issuance and service of citation. 578S, W. 2d434 (Civ. App. -Houston [l4^ DisL] 1975, writ ref*dtu r. &). In addition, other more recent cases further delineate what is not due diligence; See Tayior vj. Thompson, 4S. W. 3d 63, 65 (Tex. App. - Houston fl" DistJ 1999, pet Denied) (Affirming summary judgment in favor ofDefendant where Plaintiffs filed Petition four months before statute ran but did not have the Defendant served until one (1) week after the statute ran); V. Tinsman &Hower. Inc.. 13 S. W. 3d 47, 49-50 (Tex. App. - San Antonio 1999, pet denied) (Affirming Summary Judgment for Defendants on the basis that Plaintiff foiled to show due diligence de^ite filing suit eleven (11) days before the statute ran but did not serve Defendants until three and one-half(3 2) weeks after the statute ran). As amatter oflaw, due diligence was not used by the Plaintiff in order to effectuate service on Defendant, JESUS MARIA ALVAREZ.
It is the responsibility of the party requesting service to ensure that service is i^operly accomplished. Primate Construction, Inc.. vs. Silver. 884 S. W. 2d 151, 152 (Tex.1994); Aguilar vs. Stone, 901 S.W.2d 955 (TexApp.-Houston fl" DisLj 1995, no writ). The Courts have consistently held that delays in obtaining service constitutes a lack of due diligence as a matter of law. See InstrumentsSpecialties Co.. vj. Texas Employment Commhsion. 92J X. W
Defendants' Motion forSummary Judgment Page 9 of 13
2d 420 (Texu4pp.-Ft. Worth I996y writ denied) (Six months); Hansler vs, Mainka, 807S,W.
, 3 (Tex.App,-Corpus Christi1991, no writ), (Five monUts); Allen vs, Bentiev Laboratories.
538, S.W. 2d857(Tex.Civ^pp,-San Antonio, 1976, writ refdn.r,e.) (Six months). If this Court considers the December 18, 2000 pleading filed by the Plaintiff on December 18, 2000 as being filed within the statute of limitations, Movant would show this Court that Plaintiff failed to exercise due diligence in seeking service ofprocess on this pleading. Areview ofdie attached Docket Sheet {Exhibit "J^ clearly shows that process was not sought until after February 15,2002, in fact the Docket Sheet reflects that Defendant, Alvarez was not served with process until February 25, 2002. The initial state court complaint {Exhibit "D") was filed on December 18, 2000. Thus, the record clearly reflects that Defendant, Alvarez was not served with process until one year and two months after the initial state court pleading. Areview of the cases cited above clearly shows that one year and two months does not constitute due
diligence and that therefore Plaintiffs cause ofaction, even under the initial state court pleading is barred by the statute of limitations.
The Plaintiffdid not use due diligence in serving Defendant JESUS MARIA ALVAREZ. Accordingly, Plaintiffs claims against Defendant JESUS MARIA ALVAREZ are barred
pursuant to the four year statute of limitations. See Civil Practice and Remedies Code
16.004(a)(4). Since claims are barred against Defendant, Alvarez, claims against Intervenor are likewise barred.
XIV. CONCLUSION
The aforementioned and undisputed summary judgment evidence demonstrates that Defendant, JESUS MARIA ALVAREZ is not liable to the Plaintiff SERGIO ALAMZ, SR.
Defendants' Motion for SummaryJudgment Page 10 of 13
based on the expiration ofthe statute of limitations and therefore PlamtiflPs cause ofaction, if any, against Intervenor is also beyond the statute of limitations.
XV. RELIEF REOUESTRD
Intervenor therefore request that Declaiatoiy Judgment be entered as follows; 1) That Intervenor ANA LISA GARZA, by virtue ofthe conveyance maHp by Plaintiff SERGIO ALANIZ, SR. to Defendant JESUS MARIA ALVAREZ and demand for JESUS MARIA ALVAREZ to ANA LISA GARZA, be declared as the sole and lawful owner ofthe above- described property and that any and all Clouds of Title created by the filing of the fiivolous Lis Pendens by Plaintiffand subsequent deeds executed by Plaintiffbe removed; 2) That the Plaintiff's causes ofaction as against Defendant and Intervenor are barred by the statute oflimitations.
3) That Intervenor ANA LISA GARZA, by virtue of subsequent conveyance of the subject real property by Defendant JESUS MARIA ALVAREZ to Intervenor ANA LISA GARZA, be declared as the sole and lawful owner of the above-described proper^ and that any and all Clouds on ride created by the filing ofthe fiivolous Lis Pendens by Plaintiff, by subsequent deeds executed by Plaintiff, and by filing ofthis lawsuit, be removed. WHEREFORE, PREMISES CONSIDERED, Intervenor prays that this motion be set for hearing, and that upon said hearing, the court enter a final judgment that the Plaintiff take nothing in this suit against Intervenor ANA LISA GARZA, that recover costs ftom Plaintiffand that Intervenor obtain such other and further relief as specified above and to which she may be jusdy entided.
Defendants' Motion forSummary Judgment Page 11 of 13
Respect&lly Submitted,
OXFORD & GONZALEZ Attorneys at Law 124 3.12*^ St. Edinbutg, Texas 78540 (956)383-5654 (956)38y0t
Ricardo Gonzalez State Bar No. 08131490 ATTORNEY FOR INTCRVENOR ANA LISA GARZA
CERTIFICATE OF SERVICE
I, Ricardo Gonzalez the undersigned, hereby certify that on this _day of April, 2015, a true and correct copy ofthe foregoing document has been forwarded toopposing counsel as follows:
VIACMRRRi Ion IS73 dOOl jLCtc Sergio Alaniz, Sr. ID No. 79825-079 GB Federal PrisonCamp P.O. Box 26010 Beaumont, Texas 77720-6010
Via Facsimile (9^6) 487-7521 Jesus Maria Alvarez Alvarez & Associates 501 N. Britton Ave Rio GrandeCity, Texas 78582 Telephone: (956) 487-4871
RICARDO
Defendants' Motion for Summary Judgment Page 12 of 13
Rta, ^ oewci CAUSE NO; DC-00-328 OS 2015 SERGIO ALANIS, SR. ETAL § INTHE381^JUDIC PLAINTIFFS § § VS. § DISTRICT COURT OF § JESUS MARIA ALVAREZ ET AL § DEFENDANTS § § ANA LISA GARZA § INTERVENOR § STARR COUNTY, TEXAS
PLAINTIFFS' RESPONSE TO INTERVENOR'S SECOND MOTION FOR SUMMARY JUDGMENT
NOW COMES, SERGIO ALANIS, SR., MARIA GUADALUPE ALANIS, SUSIE ALANIS, SERGIO ALANIS, JR. and ALON2X> ALANIS, PlaintifTs ask this Honorable Court to deny Intervenor's Second Motion for Summary Judgment.
1. Plaintiffs are Sergio Alanis Sr., Maria Guadalupe Alanis, Susie Alanis, Sergio Alanis Jr., and Alonzo Alanis.
2. Defendants are Jesus Maria Alvarez, Ana Lisa Garza and Alvarez & Associates.
3. Intervenor is Ana Lisa Garza.
4. Plaintiffs sue Defendants for breach of fiduciary duty, fraud, damages exemplary/ punitive damages, and title to real property referred to in the other pleading herein, the description of which is incorporated herein by reference and referred to herein as (the " property").
I. FACTS
1. Mr. Alanis and Mrs. Alanis purchased the property at issue in the underlying suit on or about May 25, 1988 described as Porcion No. Eighty-Three (83), containing 48 acres of real property with improvements, with an estimated value in excess of $400,000.00. The Plaintiffs placed all documents pertaining to the purchase of Porcion No. Eighty-Three (83) in the core ofthe Defendant(s). EXHIBIT "D" Page 1 of 13
2. On January 27, 1998, Mr. Alanis was arrested and charged with violation of federal laws within The Southern District of Texas; On January 30, 1998 the Defendant's entered their appearance as Mr. Alanis's attorneys of record for his legal defense.
3. On January 30, 1998, The Honorable Judge Peter Ornisby, in open court informed attorney Alvarez that the US Government intended to seek forfeiture of the property at issue herein. See Exhibit "A "
4. Mr. Alanis, continued in his efforts to contact Defendant Jesus M. Alvarez, but said Defendant made himself unavailable, on September 23, 1998 Mr. Alanis fired and/or dismissed the herein Defendant as his counsel ofrecord.
5. On or about February 06, 1998, Mrs. Alanis traveled to the law office of the Defendants for receipt of the foregoing stated power of attorney, and at that time rather than receiving said document; Mrs. Alanis received a copy of an "Attorney-Client Contract of Employment for Criminal Matters". Mrs. Alanis met with Mr. Alvarez and question the execution of said contract. According to Mrs. Alanis, Mr. Alvarez claimed that the contract was needed in order to avoid the U.S. Government Seizure/Forfeiture of the ranch/property and that hehad nointention of actually keeping the property at issue herein. The contract is false, because Mr. Alanis and Mr. Alvarez never made such an agreement; in fact the contract was never presented to Mr. Alanis. It is further noted that the signature page of the contract is suspect, in that the pages are not numbered, and has only the date of execution signature line for "Mr. Alvarez Attomey in charge", and a signature line for Sergio Alanis, client. See Exhibit-B pages 1-4 attached.
6. On February 13, 1998, Mrs. Alanis obtained a copy of the power of attomey executed by Mr. Alanis on February 05, 1998, from Defendants' office. Plaintiffs did not noticed until December 01, 1999 that Defendant had removed the Notary-Public acknowledgment of Ms. Oliveira from the power of attomey, and substituted a Notary-Public acknowledgment dated Febmary 13, 1998, of Ms. Nora F. Adams. Defendant's attached the signature page of the Warranty Deed to the power of attomey in the order to obtain Mr. Alanis's signature, once it was
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signed by Mr. Alanis, the Defendant's removed the signature page and fraudulently attached it to the Warranty Deed.See Exhibit-C, pages 1-2 attached.
7. On or about June 01,1998, Plaintiffs' were informed of a lawsuit which was pending against them by the State of Texas regarding property taxes owed from portion Eighty-Three (Cause No.97-2); said civil action was dismissed upon payment of said taxes. See Exhibit-D pages 1-2 attached.
8. On December 30, 1998, Mr. Alanis and Mrs. Alanis executed a Deed of Gift, giving, granting and conveying Pocion No. Eighty-Three (83) to their lawful heirs: Susie Alanis, Sergio AlanisJr., and AlonzoAlanis. See Exhibit-E, pages 1-3 attached.
9. On August 24, 1999, Starr County Chief Appraiser Mr. Humberto Saenz, Jr., notified the Plaintiffs that the foregoing description Deed of Gift could not be processed due to the fact that the property could not be located within the Starr County Tax files. See Exhibit-F, page 1 attached.
10. Subsequent to an investigation into the foregoing stated matter, into the foregoing stated matter, on or about December 01, 1999, Mrs. Alanis was informed that Mr. Alvarez had, on February 12, 1998, filed a Warranty Deed conveying Porcion No. Eighty-Three (83) to Mr. Alvarez said Warranty Deed has been Starr County Official Record No. 195297. Defendants in furtherance of their wrongful, illegal and criminal scheme substituted the Notary acknowledgment of Ms. Adams on the power of attorney as a transparent cover-up in an attempt to explain that Mr. Alanis had intended to sign the document and alleged Warranty Deed on February 05, 1998 and the power of attorney February 12, 1998. See Exhibit-G, pages 1-3 attached
11. Consequently Mr, Alanis initiated the underlying civil suit on or about July 03, 2000 against the defendants via civil complaint, said cause of action was dismissed without prejudice on November 09,2000 for refiling in the District Court. See Exhibit-Hpage 1 attached.
12. On or about November 06,2000, Mr. Alanis filed a civil suit within the Starr County District Court for the State of Texas. In relation to the claims that during and after Mr. Alvarez
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representation of Mr. Alanis, Mr. Alvarez did unlawfiil procure property from the Plaintiffe by fraud and deceit. See Exhibit-Ipages 1-2 attached.
13. On April 26, 2002, Plaintiffs filed their Permissive Joinder of Parties. See Exhibit-J, pages 1-6 attached.
14. In furtherance of their wrongful and illegal scheme, the Defendants have allegedly caused the property to be conveyed pursuant to that certain second alleged deed, dated January 17, 2007, by and between Mr. Alvarez as grantor and Ms. Garza as grantee and recorded in the real property of Starr County, Texas.
15. On or about April 26, 2007, Honorable Judge Jose Luis Garza, a member of Alvarez & Associates, who knew or should have known that he represented a conflict of interest on this case, instead of recusing himself from this case. Judge Garza dismissed this case for lack of prosecution.
16. On or about July 26, 2011, Mr. Alanis filed his Affidavit which establishes the following facts:
17. The property was the marital community real property of Mr. Alanis and Mrs. Alanis until December 08,1998 when they conveyed the property to their children, SusieAlanis, Sergio Alanis Jr., and Alonzo Alanis. See Exhibit-K, pages 1-2 attached.
18. Mr. Alanis filed his controverting affidavit and controverting pleading to all the facts alleged by Defendants. Mr. Alanis raised controverting facts that include but not limited to a failure of lack of consideration, violation of the statute of fi^uds, and actual finud. As a result of the above, the motions for summary judgment evidence to be entitled to the summary judgment as there are material issues of facts to be decided.
19. On March 05, 2002, Plaintiffs filed their citation by personal service. See Exhibit-L pages 1-2 attached.
20. On July 23, 2012, Honorable Judge Federico G. Hinojosa granted both Motions for Summary Judgment in a final Judgment.
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21. On April 05,2013, Plaintiffs filed their Appellants Opening Brief.
22. On June 06, 2013, Appellee/Intervenor filed their Response To Plaintiffs Opening Brief. See Exhibit-N.
23. On October 09, 2013, Honorable Catherine Stone, Chief of Justice, Honorable Sandee Bryan Marion, Justice and Honorable Patricia O. Alvarez, Justice, Denied Defendant/Intervenor argument and Remanded this case to the lower court. See Exhibit-O IL LAW
On July 23,2012, this Honorable Court granted Mr. Alvarez and Ms. Garza's Motion for Summaiy Judgment. Ms. Garza is now misleading this Honorable Court again, because she filed an identical Motion for Summary Judgment with the same arguments, facts, and case law the only difference is the title. Ms. Garza is an attorney at law and a District Judge, she knows that the law of the land is: When the Fourth Court ofAppealsdenied her arguments, she then had the right to present her argument to the Supreme Court, but she choose not to, therefore this Honorable Court must deny Intervenor's Second Motion for Summary Judgment. See Exhibits "N" and Exhibits "O".
Defendant/Intervenor, Ana Lisa Garza (Mrs. Alvarez) is/was an attorney at law and the »
wife of Mr. Alvarez, Ms. Garza, has been sued as one of the Alvarez & Associates, who was a party of this law suit when Plaintiffs served a Civil Complaint against Jesus Maria Alvarez & Alvarez & Associates.
For over fifteen (15) years. Plaintiffs, have described the facts giving rise to their causes of action, including false concealmentand their discovery of the Defendants deceitful conduct on or about December 01, 1999. Pursuant to the discovery rule, the accrual date of Plaintiffs limitation period was deferred until December 01, 1999. The Plaintiffs have described the discovery of Defendants conduct in all documents filed with the lower court that called for a statement of facts including, but not limited to motion to file a complaint for fiaud in violation of the laws of the United States of America, July 18, 2000, Motion for Recovery of Damages and claim of fiaud, December 18, 2000; Amended Civil Complaint for Breach of Fiduciary Duty and
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Fraud, February 15, 2002; Plaintiffs First Supplemental Petition and Plaintiffs Response to Intervenor's First Amended Original Petition in Intervention, October 14, 2010, Plaintiffs Response to Intervenor's Motion for Summary Judgment, September 30, 2011, and Plaintiffs Response to Defendant's Motion for Summary Judgment, January 11, 2012. Plaintiffs at least eight (8) different trial court pleadings have described the discovery of the facts that give rise to their causes of action against Defendants pursuant to the discovery rule. Defendants have never denied, contradicted, or suggested another method that Plaintiffs first learned of Defendants deceit and fraudulently concealment. It is disingenuous for Defendants to nowsuggest otherwise. Defendants claims are not credible enlighten of their prior conduct.
III. SUBSTANCE OVER FORM
The fundamental premise underlying the discovery rule is the substance over form doctrine created by the UnitedStates Supreme Court in Gregory V. Helvering, 293 U.S. 465, 55 5. Ct. 266, 79 L Ed. 596 (1925), Trans Capital LeasingAssocs. I990-II, LP.V. UnitedStates, 2006 U.S. App. Lexis 16238 (5'*' Cir. Tex., March 31, 2007). The Fifth Circuit has also always looked to Substance Over Form in Doctrine determining a claim. Cefalv V. B.F. Goodrich Co., 971F. 2d1290 (5"' Cir. 1989).
IV. OUESTION OF FACT AND LAW DISCOVERING RULE
The Plaintiffs' description of the facts includes the discovery rule as it pertains to the accrual of the Statute of limitations. Barker V. Eckman, 213 S.W. 3d 306, 311-12 (Tex. 2006); Quigley V. Bennett, 256 5. IF. 3d, 356, 360 (Tex. App.- San Antonio 2008. No pet.) For the discovery rule to apply. Plaintiffs' must prove the injury was inherently imdiscoverable and objectively verifiable. Via Net V. TIG Ins. Co; 211 S.fV. 3d 310, 313 (Tex. 2006); Wagner & Brown, Ltd. V. Norwood, 58 S.W. 3d 732, 734 (Tex. 2001); S.V. V. R.V. 933 S.W. 2d 1, 4-7 (Tex. 1996); Woods V. WilliamM. Mercer, Inc., 769S.W. 2d515, 518 (Tex. 1988).
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V. INHERENTLY UNDISCOVERABLE
An injury is inherently undiscoverable if it is by nature, unlikely to be discovered within the prescribed limitations period. Via Net, 211 S. W 3d at 313; Wagner & Brown, 58 S.W 3d at 734-35; S.V. 933 S.W. 2d at 7; ComputerAssocs. V Alta; Inc. 918 S.W. 2d 453, 456 (Tex. 1996); Willis V. Maverick, 760 S.W. 2d 642, 645 (Tex. 1988). Whether an injury is inherently undiscoverable is determined categorically-that is by examining whether the particular type of injury claim is generally discovered through the exercise of reasonable diligence. Via Net, 211 S. W. 3d at 314, Wagner & Brown, 58 S. W. 3d at 734-35; HECI Epl. Co. V. Neel, 982 S. W. 2d 881, 886 (Tex. 1998); Kerlin V. Sauceda, 263 S.W. 3d 920,926-27 (Tex. 2008); Computer Assocs. 918 S.W. 2d at 455, 457-58. Plaintiffs' must demonstrate only that it was difficult to discover the injury; the Plaintiffdoes not need to prove that it was impossible. S. V. 933 S. W. 2d at 7.
VI. INJURIES INHERENTLY UNDISCOVERABLE
It is difficult to create a list of injuries that can be characterized as inherently undiscoverable because many cases concem injuries too specific to be categorized, Nugent V. Pilgrim's Pride Corp; 30 S. W. 3d 562, 574 (Tex. App-Texarkana 2000, Pet. Denied) (Injuries caused by exposure to toxic pollutants blowing from D's feed Mill and overflowing from adjoining property during heavy rains were inherently undiscoverable); Matthiessen V. Schaefer, 27 S.W. 3d 25, 31 (Tex. App-San Antonio 2000, Pet. Denied) (Injury caused by purchase of property based on Seller's negligent misrepresentation that only a few acres of land were located in a 100 year flood plain was inherently undiscoverable.)
vn. BREACH OF FIDUCIARY DUTY
Injuries arising from the breach of a fiduciary duty are considered inherently undiscoverable. S.V, 933 at 8; Computer Assocs; 918 S. W. 2d at 456; Mass V. George, 71 S.W. 3d 904, 912 (Tex. App-Texarkana 2002, No Pet.). Generally a party who is owed a fiduciaiy duty
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is relieved of the responsibility of the diligent injury into the fiduciary's conduct. S.V. 933 S.W. 2d at 8.
VIII. OBJECTIBELY VERIFIABLE
An Injury is objectively verifiable if the injuries existence and the Defendant's wrongful act on which liability is asserted are demonstrated by direct physical evidence, Hay V. Shell Oil Co; 986 S.W. 2d 772, 777 (Tex. App-Corpus Christi 1999, Pet, denied); Computer Assocs; 918 S.W. 2d 4575-58; S.V. 933 S.W. 2d 647, 652 Tex. App-Houston [14"' Dist] 1998, pet denied) (wrongful conduct and deprivation of property were objectively verifiable upon receipt of letter informing that certification she would receive would not carry University's seal; Oliver V. Rogers, 976 S. W. 2d 792, 802 (Tex. App-Houston [1^' Dist.] 1998, Pet denied) (Injury resulting from breach of contract was objectively verifiable by looking at D's contract with third party).
The discovery rule defers a cause of actions accrual until Plaintiffs know of the facts giving rise to the claim. Barker V. Eckman 213 S. W. 3d 306. 311-12 (Tex. 2006); Quigley, 256 S.W. 3d at 360.
When the non-movant interposes a suspension, such as the discovery rule, the movant must further negate the discoveryrule by proving as a matter of law that there is no genuine issue of fact about when the movant discovered the nature of the injury. Zale Corp. V. Rosenbaum, 520S.W. 2d 889, 891(Tex. 1975); Burns V. Thomas, 786S.W. 2d 266, 267 (Tex. 1990); Delgado V. Burns, 656 S.W. 2d 428, 429 (Tex. 1983); Weaver V. Witt 561 S.W. 2d 792,794 (Tex. 1977); Morriss V. Enron Oil & Gas Company, 948 S.W. 858, 868 (Tex. App-San Antonio 1997). Defendants have not further negated the discovery rule and are not entitled to Summary Judgment.
Fraudulent concealment defers an actions accrual period until Plaintiffs discover the deceitful conduct of facts giving rise to the cause of action. Kerling V. Saiceda, 263 S.W. 3d 920, 925 (Tex. 2008); Quigley V. Bennett, 256 S.W. 3d 356, 360 (Tex. App-San Antonio 2008, No Pet). Fraudulent concealment defers a cause of actions accrual because Defendants cannot be allowed to avoid liability for their actions by deceitfully concealing wrong doing until the
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limitatioDS period has run. S.V. V. R.V; 933 S.W. 2d1,6 (Tex. 1996); Quigley, 256 S.W. 3dat 360.
IX. ACTUAL KNOWLEDGE OF WRONG
For fraudulent concealment to apply Plaintiffs must prove (1) Alvarez had actual knowledge of the wrong. (2) Alvarez concealed the wrong by making misrepresentation or by remaining silent when he had a duty to speak. (3) Alvarez had a fixed purpose to conceal the wrong and (4) Plaintiffs reasonably relied on the misrepresentation and/or silence of Alvarez. Shah V. Moss 67 S.W. 3d 836, 841 (Tex. 2001); Quigley, 256S.W, 3d at 360-361; Mass, 71 S.W. 3dat 913; Mellon Serv. V. Touche Ross &Co., 17S.W. 3d432, 436 (Tex. App-Houston [l" D'lst] 2000, No Pet.); Arabian Shield Dev. Co. V. Hunt, 808 S. W. 2d 577, 584 (Tex. App-Dallas 1991, writ denied). Pleiintiffs must establish Alvarez had actual knowledge of the wrong committed, Earle V. Ratliff998S.W. 2d 882, 888 (Tex. 1999); Carroll V. Denton 157S.W. 2d 878, 879(Tex. 1942); overruled on other grounds, Gaddis V/ Smith, 417 S.W. 2d 577 (Tex. 1967); Hay 986 S.W. 2d at 778.
Plaintiffs must establish Alvarez had actual knowledge of the wrong committed. Earle V. Ratliff998 S.W. 2d 882, 888 (Tex. 1999); Corral V. Denton, 157 S.W. 2d 878, 879 (Tex. 1942), overruled on other grounds, Gaddis V. Smith, 417 S.W. 2d577(Tex. 1967); Hay986 S. W. 2d at 778.
X. ACT OF CONCEALMENT
Plaintiffs must establish Alvarez performed an act of concealment, Doughterty V. Gifford, 826S.W. 2d668. 675 (Tex. App-Texarkana 1992, No writ); Chandler V. Chandler, 991 S.W. 2d 367, 394 (Tex. App-El Faso 1999, Pet denied). The gist of fraudulent concealment is Alvarez active suppression of the truth; thus concealment is demonstrated by proof that Alvarez made a representation or remained silent when he had a duty to speak. Hay, 986 S. W. 2d at 778; Santanna Nat. Gas Corp. V. Hamonoper Co., 954 S.W. 2d 885, 890 (Tex. App-Austin 1997, Pet denied).
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XL MISREPRESENTATION
A misrepresentation constitutes fraudulent concealment when it prevented Plaintiffs from discovering Alvarez's wrong. Kanon V. Methdoist Hosp., 9 S. W. 3d 365, 369 (Tex. App-Houston [14"' Dist.J 1999, No Pet.), disapproved on other grounds; Ernst & Young, LLP. V. Pacific Mut. Life Ins. Co., 51 S.W. 3d 573 (Tex. 2001); Santanna Nat. Gas 954 S.W. 2d at 890-91; Cherry V. Victoria Equip. & Sup., 645 S. fV. 2d 781, 782 (Tex. 1983) (In deposition taken before limitations ran, owner of business made repeated assertions that his business had not been involved with oil well that injured P). The representation must have been intended to influence Plaintiffs. Ernst & Young, LL.P. V. Pacific Mut. Life Ins. Co., 51 S. W. 3d 573, 578 (Tex. 2001); Texas Capital Sees., Inc. V. Sandefer, 58 S.fV. 3d 760, 772 (Tex. App-Houston [l" Dist.] 2001, Pet denied.
XII. PURPOSEFUL CONCEALMENT
To prove firaudulent concealment, the Plaintiffs must establish that Alvarez had a fixed purpose to conceal the facts from Plaintiffs needed to discover that a cause of action had occurred. Di Grazia, 900 S.fV. 2d at 503. There must be evidence that Alvarez purposefully or intentionally concealed facts. Di Grazia, 900 S. W. 2d at 503. Purposeful concealment can be established by direct or circumstantial evidence showing that Alvarez knew the statements were false when they were made. Earle, 998 S.W. 2d at 888-89.
The Summary Judgments did not and cannot question fact, questions of law and the various elements of Plaintiffs claims including but not limited to:
i) the discovery rule; a) inherently undiscoverable injury b) fiduciaiy duty of Jesus Maria Alvarez; c) breach of Alvarez's fiduciary duty to Plaintiffs; d) the injury was objectively verifiable ii) the substance over form doctrine; iii) Alvarez's fraudulent concealment in obtaining the deed. Page 10 of 13
a) the defendant had actual knowledge ofthe wrong committed b) the defendant performed the act of concealment c) a misrepresentation constitutes fraudulent concealment by Alvarez d) Alvarez had a fixed purpose to conceal the facts fixtm Plaintiffs needed to discover that a cause of action accrued; e) Plaintiffs reasonably relied on Alvarez's misrepresentation and silence to their detriment.
The Second Motion for Summaiy Judgment prevented Plaintiffs from being able to introduce evidence and testimony to prove all ofthe necessary elements oftheir causes ofaction, therefore, the Second Motion for Summary Judgment cannot claim that there are no questions of fact or law. Plaintiffs will only be able to introduce their evidence and testimony at trial. Defendants are trying to prevent such evidence and testimony by seeking inappropriate Second Motion for Summary Judgment.
xni. rONSLUSION
The property belongs to Susie Alanis, Sergio Alanis, Jr., and Alonzo Alams and not to Jesus Maria Alvarez and/or Ana Lisa Garza.
PRAYER
For these reasons, Plaintiffs' ask this Honorable Court to deny Defendant/Intervenor's Second Motion for Summary Judgment. If this Honorable Court grants Intervenor's Second Motion for Summary Judgment, Plaintiffs' ask the court tooverrule Plaintiffs' objections so they will be presented for Appeal.
Respectfully Submitted,
By: Sergio Alanis, Sr. Pro Se Reg. No. 79825-079 Dorm #3 Mid Valley House 2520 S. Expressway 281 Edinburg, TX. 78542
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htJofUA' ^ Susie Alanis Maria Guadalupe Alanis P.O. Box 2601 P.O. Box 2601 Roma, Texas 78584 Roma, Texas 78584
{J^ Sergio i^anis, Jr. Alom^ Als Alanis P.O. Box 2601 P.O. Box 2601 Roma, Texas 78584 Roma, Texas 78584
CERTIFICATE OF SERVICE
On the datelisted below, the undersigned deposited a copy of this Plaintiffs' Response to Intervenor's Second Motion for Summary Judgment postage prepaid, in themail addressed to:
Oxford & Gonzalez 124 S. n'^Ave. Edinburg, TX. 78539
Jesus Maria Alvarez 501N. Britton Ave Rio Grande City, TX. 78582
tS/AAti Sergio /Hanis, Sr. Pro Se Reg. No. 79825-079 Dorm #3 Mid Valley House 2520 S. Expressway 281 Edinburg, TX 78542
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DOCUMENT DESCRIPTION #of pages
01 Exhibit "A"-PFeliminaiy/ ExaminatioD andDetention Hearing 03 02 Exhibit "B"-Attomey-Client Contract of Employment forCriminal Matters 04 03 Exhibit "C"-Power of Attorney 02 04 Exhibit "D"-Starr County TaxCollection Account Status 02 05 Exhibit "E"-Deed of Gift,StarrCounty Official Record #200841 03 06 Exhibit "F'-Starr County Appraisal District-Additional Information of Warranty Deeds (Dated 08/24/99) 01 07 Exhibit "G"- Warranty Deed, Starr County Official Record #195297 03 08 Exhibit "H" - U.S. District Court, Eastern District of Texas, case No. 5:00cvl77; Final Judgement 01 09 Exhibit "F - Motion forRecovery of Damages and Claim of Fraud 02 10 Exhibit "J" - Plaintiffs Permissive Joinder of Parties 06 11 Exhibit "K"- Affidavit of Sergio Alanis, Sr. 02 12 Exhibit "L" - Citation byPersonal Service 02 13 Exhibit "M"- Final Judgement from Lower Court 02 14 Exhibit **N"-Appellee/Intervenor, Ana Lisa Garza as response toappellants opening brief...l4 15 Exhibit "O"- Fourth Court of Appeal Memorandum Opinion 05
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io/ ATjL4L^0t?l0CK,.p_^ll, SERGIO ALANIS., SR. ' 5 20J5 402 N. Garcia St. Rio Grande City, Texas 78582
September 14,2015
Honorable Federico G. Hinojosa 381" District Court Starr County Courthouse 401 N. Britton Avenue Rio Grande City, Texas 78582
RE: Sergio Alanis, Sr., et. al vs. Jesus MariaAlvarez et. al. Ana Lisa Garza Intervenor, No. DC-00-328. In the 381" District Court, Starr County, Texas. Hon. Federico G. Hinojosa, Presiding.
Dear Judge Hinojosa:
First, This correspondence is not intended as an ex partecommunication with the coiut,as thatwould be improper and unethical. 1am forwarding a copyof this correspondence to opposing counsels as indicated below.
Second, The message to be derived from this correspondence is quite simple. On July 23, 2012, This Honorable Court granted Mr. Alvarez and Intervenor's Ana Lisa Garza Motion For Summary Judgment. OnOctober 19,2013, The Fourth Court ofAppeals Reversed and Remanded the cause to the trial court.
OnApril 22,2015 Intervenor filed a Second Motion for Summary Judgment
On May 08,2015 thiscourtOrder Setting Submission datefor Intervenors Second Motion for Summary Judgment on June 22,2015 at 2:56P.M.
On Jime 05,2015 the PlaintifiTs filed their Motion to extend time.
On June 19,2015 This Court Granted Plaintiff's Motion and set this case for Submission On July 22,2015 at 9:00A.M.
On July 09,2015 The PlaintifiTs filed their Response to Intervenor's Second Motion for Summary Judgment. In their response the PlaintifiTs asked this court to dismiss Intervenor's SecondMotion for Summary Judgment, because The Intervenor filed the same Motion again the samearguments and case law. The Courtof Appeals has already ruledon this Motion. I am asking this Honorable Court to dismiss Intervenor's Motion so we can proceed to trial. If this Honorable Court does not rule on this case. I have no other altemative but to go to the Court ofAppeals with a mandamuspetition seeking an order directing the court to act so this case can proceed to trial. 1 do not want to do this. However I will, ifnecessary. EXHIBIT "E" Page 1 of 2
Thanking you in advance for your attention to these matters, and Iremain.
Sincerely, &mwr<
SergioAlanis, oAIanis, Sr. Sr. Plaintiff Pro Se & Lead Counsel for PlaintifTs
ENCLOSURES
cc: File
Office of the District Clerk 381®* District Court STARR COUNTY COURTHOUSE 401 N. Britton Avenue Rio Grande City, Texas 78582
Jesus Maria Alvarez Alvarez & Associates 501 N. Britton Avenue Rio Grande City, Texas 78582
Oxford & Gonzalez 124 S. 12'''Ave. Edinburg, Texas 78539
SA/jl
Filed: 10/21/20152:16:00 PM Eloy R. Garcia, District Clerk Starr County. Texas Angelica Reyes
CAUSE NO. DC-D0-32B
SERGIO AlANIS, SR.« § IN THE OtSTRICT COURT OF PlafnO/f S VS» s s JESUS MARIA ALVAREZ AND § STARR COUNTY, TEXAS ALVAREZ & ASSOCIATES. § Defendant? I .§ s ANA LISA GARZA, § Inte/venor § 381ST JUDICIAL QlSTRfCT
INTERLOCUTORY ORDER GRANTING INTERVENOR'S SECOND MOTION FOR SUMMARY JUDGMENT On July 22,2015, the Second Motion ftirSummaryJudgmeniof Intsivenor, Ana Lisa Gar^a, was submitted to the Court tor consideration. After neviemng the motion for summary Judgment, Plalntrs response to the motion, and ail submitted evidence, the Court finds that fntervenor's Second Motion for Summary Judgment is meritorious and should be granted.
IT IS, therefore, ordered, adjudged AND DECREED that intervenoT's Second Motion far Summary Judgment be end is hereby GRANTED, The Cieik ofthe Coun IsDRDERED to send copies ofthis Interlocutory order to all parties and attomeys of raoord. SIGNED on Octeber 21,2015.
Senior Judge. Prselding by Aeetgnmenl EXHIBIT