                                                                           ACCEPTED
                                                                       12-15-00169-CV
                                                          TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                 10/20/2015 8:06:36 PM
                                                                             Pam Estes
                                                                                CLERK

                   NO. 12-15-00169-CV

                IN THE COURT OF APPEALS               FILED IN
                                               12th COURT OF APPEALS
                                                    TYLER, TEXAS
          TWELFTH APPELLATE DISTRICT OF     TEXAS
                                               10/20/2015 8:06:36 PM
                        AT TYLER                      PAM ESTES
                                                        Clerk
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 173rd District Court
                 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
                     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
                          _____________________________
                          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
                          ____________________________
                          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
                               ________________________
                               LANA JOHNSON




                               6
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                                                     consideration of the same has failed in whole or in part.

TEXAS RULES OF CIVIL PROCEDURE                                  10. A denial of an account which is the foundation of the
                                                                plaintiffs action, and supported by affidavit.
Part II. RULES OF PRACTICE IN DISTRICT AND
COUNTY COURTS                                                   11. That a contract sued upon is usurious. Unless such
                                                                plea is filed, no evidence of usurious interest as a defense
§ 4. Pleading.                                                  shall be received.

C. Pleadings of Defendant                                       12. That notice and proof of loss or claim for damage has
                                                                not been given as alleged. Unless such plea is filed such
As amended through June 10, 2014                                notice and proof shall be presumed and no evidence to
                                                                the contrary shall be admitted. A denial of such notice or
Rule 93. CERTAIN PLEAS TO BE VERIFIED
                                                                such proof shall be made specifically and with
A pleading setting up any of the following matters, unless      particularity.
the truth of such matters appear of record, shall be
                                                                13. In the trial of any case appealed to the court from the
verified by affidavit.
                                                                Industrial Accident Board the following, if pleaded, shall
1. That the plaintiff has not legal capacity to sue or that     be presumed to be true as pleaded and have been done
the defendant has not legal capacity to be sued.                and filed in legal time and manner, unless denied by
                                                                verified pleadings:
2. That the plaintiff is not entitled to recover in the
capacity in which he sues, or that the defendant is not         (a) Notice of injury.
liable in the capacity in which he is sued.
                                                                (b) Claim for Compensation.
3. That there is another suit pending in this State between
                                                                (c) Award of the Board.
the same parties involving the same claim.
                                                                (d) Notice of intention not to abide by the award of the
4. That there is a defect of parties, plaintiff or defendant.
                                                                Board.
5. A denial of partnership as alleged in any pleading as to
                                                                (e) Filing of suit to set aside the award.
any party to the suit.
                                                                (f) That the insurance company alleged to have been the
6. That any party alleged in any pleading to be a
                                                                carrier of the workers' compensation insurance at the
corporation is not incorporated as alleged.
                                                                time of the alleged injury was in fact the carrier thereof.
7. Denial of the execution by himself or by his authority
                                                                (g) That there was good cause for not filing claim with
of any instrument in writing, upon which any pleading is
                                                                the Industrial Accident Board within the one year period
founded, in whole or in part and charged to have been
                                                                provided by statute.
executed by him or by his authority, and not alleged to be
lost or destroyed. Where such instrument in writing is          (h) Wage rate.
charged to have been executed by a person then
deceased, the affidavit shall be sufficient if it states that   A denial of any of the matters set forth in subdivisions (a)
the affiant has reason to believe and does believe that         or (g) of paragraph 13 may be made on information and
such instrument was not executed by the decedent or by          belief.
his authority. In the absence of such a sworn plea, the
instrument shall be received in evidence as fully proved.       Any such denial may be made in original or amended
                                                                pleadings; but if in amended pleadings the same must be
8. A denial of the genuineness of the indorsement or            filed not less than seven days before the case proceeds to
assignment of a written instrument upon which suit is           trial. In case of such denial the things so denied shall not
brought by an indorsee or assignee and in the absence of        be presumed to be true, and if essential to the case of the
such a sworn plea, the indorsement or assignment thereof        party alleging them, must be proved.
shall be held as fully proved. The denial required by this
subdivision of the rule may be made upon information            14. That a party plaintiff or defendant is not doing
and belief.                                                     business under an assumed name or trade name as
                                                                alleged.
9. That a written instrument upon which a pleading is
founded is without consideration, or that the                   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.
