                                                                               ACCEPTED
                                                                           04-14-00667-CV
                                                               FOURTH COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                     8/19/2015 10:48:29 AM
                                                                            KEITH HOTTLE
                                                                                    CLERK



                       CAUSE NUMBER 04-14-667-CV
                     _____________________________        FILED IN
                                                   4th COURT OF APPEALS
                                                    SAN ANTONIO, TEXAS
                   RAMIRO AND EDNA RAMOS AND      08/19/2015 10:48:29 AM
                 FEDERICO SALAZAR, JR., APPELLANTS KEITH E. HOTTLE
                                                           Clerk
                                   v.

                         THE UNKNOWN HEIRS OF
                         TOMASA GONZALEZ AND
                     NARCISO GONZALEZ, APPELLEES
                     ______________________________

                   IN THE FOURTH COURT OF APPEALS
                          SAN ANTONIO TEXAS
                      _____________________________

                          ON APPEAL FROM THE
                         st
                      381 JUDICIAL DISTRICT COURT
                        TRIAL CAUSE NO. DC-09-559
                        HON. J. MANUEL BANALES,
                            PRESIDING JUDGE
                       ____________________________

                      THE APPELLEES‟ REPLY BRIEF
                    TO THE APPELLANTS‟ REPLY BRIEF
                       ____________________________

                             JOHN A. OLSON
                           Tex. Bar No. 15274750
                             20634 Creek River
                          San Antonio TX 78259-2084
                             210-307-0336 Office
                             210-402-3924 Fax
                          jaolson_ccda@yahoo.com

                          The Appellees‟ Co-Counsel

                      ORAL ARGUMENT REQUESTED


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                           TABLE OF CONTENTS
                                                                PAGE(S)

INDEX OF AUTHORITIES ……………………………………………… i –

THE APPELLEES‟ REPLY TO
THE APPELLANTS‟ FIRST REPLY ……………………….……………. 2 - 9

THE APPELLEES‟ REPLY TO
THE APPELLANTS‟ SECOND REPLY …………………………….….. 9 - 12

THE APPELLEES‟ REPLIES TO THE
APPELLANTS‟ THIRD AND FOURTH REPLIES ……………….…… 12 - 13

PRAYER ……………………………………………………………….... 14

CERTIFICATE OF SERVICE ……………………………..….…….….. 14

CERTIFICATE OF COMPLIANCE ……………………………..…….. 15

                          INDEX OF AUTHORITIES
                                 CASES

Bailey-Mason v. Mason,
334 S.W.3d 39 (Tex. App. -- Dallas 2008, writ denied) ……….… 3

Bush v. Gaffney, 84 S.W.2d 759,
(Tex. App. -- San Antonio 1935, no writ) …………………….…… 2

Casso v. Fullerton,
App. Cause No. 04-05-00905-CV,
(Tex. App. – San Antonio 2006, writ denied) …………………………10, 11

Dunn v. Dunn, 177 S.W.3d 393,
(Tex. App. – Hous. [1st Dist.] 2005, writ denied) …………………….. 10

Golson v. Fielder, 21 S.W. 173 (Tex. App. 1893) ……………………3, 7

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                                CASES (Cont‟d)
                                                                  PAGE(S)
Hatley v. Schmidt, 471 S.W.2d 440,
(Tex. App. – San Antonio 1971, writ ref‟d) …………………………….... 3

Hill v. Jarvis, App. Cause No. 12-07-00091-CV,
(Tex. App. – Tyler 2008, writ den‟d),
(Memo Op.; not designated for pub‟n) ……………………………..…8, 10

In re E.A., 287 S.W.3d 1 (Tex. 2009) ………………………………… 13

In the Interest of D.J.D.,
79 S.W.3d 804 (Tex. App. -- Corpus Christi 2002, no writ) …………..… 10

M.A.V. Jr. v. Webb Cty. Court at Law,
842 S.W.2d 739 (Tex. App. -- San Antonio 1992, writ denied) ……………… 2, 4

Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co.,
236 S.W.3d 765 (Tex. 2007) …………………………………………………….. 11

Prize Energy Resources, L.P. v. Hoskins,
345 S.W.3d 537 (Tex. App. -- San Antonio 2011, no writ) ……………… 2, 6

Schluter v. Sell, 194 S.W.2d 125 (Tex. App. – Austin 1946, no writ) ………..6, 8

Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003) ……………..……. 4

Wheeler v. Phillips,
App. Cause No. 03-10-00221-CV,
(Tex. App. – Austin 2011, writ denied) …………………………..……………. 9

Wooley v. West,
391 S.W.2d 157 (Tex. App. -- Tyler 1965, writ ref'd) ……………………..….. 3, 4




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                                   CODES
                                                       PAGE(S)

Chapter 29, Texas Property Code ……………………………………………11, 12

                                   RULES

Tex. R. Civ. Proc. 21a ………………………………………………………….. 13

Tex. R. App. Proc. 33.1(a) ………………………….………… 9

Tex. R. App. Proc. 38.1 (i) …………………………………….….. 2, 8, 9, 12

Tex. R. Civ. Proc. 113 ………………………………………………………..….. 12

Tex. R. Civ. Proc. 114 ………………………………………………………..….. 12

Tex. R. Civ. Proc. 115 ………………………………………………………..….. 12

Tex. R. Civ. Proc. 116 ………………………………………………………..….. 12

Tex. R. Civ. Proc. 117 ………………………………………………………..….. 12

Tex. R. Civ. Proc. 272 ……………………………………………………..……. 10




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                         CAUSE NUMBER 04-14-667-CV
                        ______________________________

                      RAMIRO AND EDNA RAMOS AND
                    FEDERICO SALAZAR, JR., APPELLANTS

                                          V.

                          THE UNKNOWN HEIRS OF
                          TOMASA GONZALEZ AND
                       NARCISO GONZALEZ, APPELLEES
                       _______________________________

                     IN THE FOURTH COURT OF APPEALS
                            SAN ANTONIO TEXAS
                        _____________________________

                             ON APPEAL FROM THE
                            st
                        381 JUDICIAL DISTRICT COURT
                          TRIAL CAUSE NO. DC-09-559
                           HON. J. MANUEL BANALES,
                               PRESIDING JUDGE
                          ___________________________

                        THE APPELLEES‟ REPLY BRIEF
                      TO THE APPELLANTS‟ REPLY BRIEF
                         ___________________________

TO THE HONORABLE JUSTICES OF SAID COURT:

      Pending this Court‟s ruling on their companion Unopposed Motion for an

extension of time to file this Reply Brief, the Appellees present the following Replies:




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                           1. THE APPELLEES‟ REPLY TO
                          THE APPELLANTS‟ FIRST REPLY.

      The Appellees argue that what this Reply‟s Argument ignores is that none of

its authorities and those cited in the Appellants‟ Brief show that an appellate court has

ever affirmed or reversed and remanded for correction a plaintiff‟s claim for

reimbursement of property taxes, expenses, outlays, etc., when the Record

unequivocally showed that he, despite having realized for many years that taxes had

not been paid, himself then began belatedly paying them but, before, during, or after

doing that, did not make a single demand for reimbursement in any form from a

cotenant before filing his suit because of the latter‟s subsequent refusal. Accord Tex.

R. App. Proc. 38.1(i)[A Brief must {Emphasized} contain a clear and concise

argument to support its contentions with appropriate citations to authorities and to the

Record]; M.A.V. Jr. v. Webb Cty. Court at Law, 842 S.W.2d 739, 749 (Tex. App. --

San Antonio 1992, writ denied)[Failure to adequately-brief Point prevents review];

Accord Prize Energy Resources, L.P. v. Hoskins, 345 S.W.3d 537, 562, 588, Fn. 28

& 30 (Tex. App. -- San Antonio 2011, no writ), citing Rule 38.1(i), supra.

      Surely such evidence cannot be rewarded in this case (See below) under any

theory of law and/or equitable principle. Accord Bush v. Gaffney, 84 S.W.2d 759,

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764 (Tex. App. -- San Antonio 1935, no writ)[One “who seeks equity must do

equity”]; Golson v. Fielder, 21 S.W. 173, 175 (Tex. App. 1893)[“Simply the payment

of taxes will not amount to an ouster or repudiation of the title of the true owner, nor

will the assertion of claim to the entire tract have that effect, unless notice of such

fact is brought home to the other cotenant or owner.”].

      As for the Argument‟s reliance on its cases, the Appellees present these

rebuttals:

   1. Bailey-Mason v. Mason, 334 S.W.3d 39 (Tex. App. -- Dallas 2008, writ den‟d)

      does not support its theory of reversible error because the appellate court

      denied the appellant‟s attempt to recover, among other things, property tax

      payments because her “pleading sought reimbursement only „for improvement

      to the property.‟ Thus, her reimbursement claims based on expenditures for

      …, taxes, ….. must fail.” Id., at 45, citing Wooley v. West, 391 S.W.2d 157,

      161 (Tex. App. -- Tyler 1965, writ ref'd).

             The Appellees acknowledge that their Third Amended Petition, which

      replaced their first two, Hatley v. Schmidt, 471 S.W.2d 440, 442 (Tex. App. –

      San Antonio 1971, writ ref‟d), sought the recovery of their paid property taxes.

      C.R., Vol. 001, P. 305.

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           However, even though Mason, supra, acknowledged that the appellant

     paid a sum certain for property improvements, it still reviewed the evidence to

     see “whether the trial court's failure to find in her favor is so contrary to the

     overwhelming weight and preponderance of the evidence as to be clearly

     wrong and manifestly unjust.” Id., at 45 (Citations omitted), and found that she

     had not based on her unspecific pleadings.

           As the Appellees stated in their Brief, a party is obligated to include the

     appropriate review standard for each Point, Swearingen v. State, 101 S.W.3d

     89, 100 (Tex. Crim. App. 2003), and the Appellants‟ original and Reply Briefs

     do not, which the Appellees argue certainly prevents this Court from making a

     reasoned decision on whether the trial court abused its discretion, as they

     claimed. Accord M.A.V. Jr. v. Webb Cty. Court at Law, 842 S.W.2d at 749.

  2. In Wooley, supra, the court noted that the appellee argued “that the court

     correctly disregarded the jury's findings to a Special Issue because the

     undisputed evidence shows that she discharged the lien in the amount of

     $2,991.11 with her own separate funds and the parties being mere co-tenants,

     [she] had a right to reimbursement with interest, and also and an equitable right

     of reimbursement for money expended in preserving the property in the

     amount of $303.00 (being the taxes).” Id., at 159.

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     But when revisiting the issue, the Court stated:

           “As a general proposition, a cotenant who pays more than his share of a
           debt secured by a mortgage or other lien on the common property, or
           who makes an outlay for necessary or proper preservation thereof is
           entitled to reimbursement from his co-tenants to the extent to which he
           paid their share of the indebtedness.
           The right of contribution arises from equitable considerations, and rests
           upon the principle that where all are equally liable for the payment of a
           debt or common burden, all are bound equally to contribute to that
           purpose even though the paying co-tenant at the time of the payment,
           asserted exclusive title to the common property or believed himself the
           sole owner thereof.”
           Id., at 160.

           Although they inadvertently failed to do so in their Brief, the Appellees

     now argue that the controlling phrases in that statement to this case are (1)

     “who pays more than his share,” and (2) “to which he paid their share,” and (3)

     “all are equally liable for the payment of a …. common burden, all are bound

     equally … ”.

           In contrast, the Appellants‟ 2 Briefs do not contain a Record reference

     showing that their total tax payments fell in those ambits, but simply argued

     that because the trial court found they paid $100,578.31 in ad valorem taxes,

     they were entitled to a Judgment for it repayment, but because they did not, the

     trial court abused its discretion.



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              So, just as was the Appellants‟ original theories of relief and reversible

     error were substantively defective, the Appellees argue that this Court can

     properly find that this Argument‟s theories are too.

  3. In Hoskins, supra, this Court reviewed an appeal respecting a title dispute to

     mineral interests among 4 owners. Id., at 545. The Argument did not favor this

     Court with a specific page in this case it should review but, suffice it to say, the

     word “tax” appears once (and only as a statement of fact). Id., at 581; “lien” is

     not referenced; and, after this Court stated it found only one case applying a

     particular analysis to a co-tenant's reimbursement claim, it held that:

              “as a general rule oil and gas wells are characterized as improvements to
              real property; as such, equitable principles apply and dictate that a
              person „who in good faith makes improvements upon property owned by
              another is entitled to compensation therefore.‟ "
              Id., at 564.

              The Argument failed to explain how that holding has a definite

     application to this case‟s resolution in the Appellants‟ favor. Rule 38.1(i),

     supra.

  4. In Schluter v. Sell, 194 S.W.2d 125 (Tex. App. – Austin 1946, no writ), the

     property in question appears to have been awarded to the parties in California

     since the appellant filed for its partition there, but dismissed it on grounds that



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     the decree was interlocutory. Id., at 132. Thereafter, the appellee, his ex-wife,

     filed a petition for partition in Texas in which she sought in part the recovery

     of property taxes she had paid. Id., at 125.

           Although the Opinion is silent about when the appellant failed and

     refused to “do anything about the property,” or, whether that occurred before or

     after the appellee filed her Texas suit, the Appellees argue that a logical

     conclusion is that it was before she did because the Opinion noted that she

     testified that the burden of caring for the property fell completely upon her. Id.,

     at 132.

           The Appellees argue that what is significant about her evidence is that it

     shows there was an affirmative action by her to get the appellant to reimburse

     her for what she paid before filing her Texas suit. Id., at 132 [During all these

     years ….. ]; Compare Golson, supra.

           Although the Court disagreed with part of her claim, it sustained her plea

     for the recovery of her tax payments. Id., at 133.

           In contrast, the Appellants‟ Briefs do not reference any evidence

     showing that before they filed their 3 Petitions, C.R., Vol. 001, Pp. 13-17, Pp.

     72-118, and Pp. 291-308, they notified the Appellees of the tax notices they

                                         -7-




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     began receiving 16 years ago; sent proofs of their payments in response to the

     notices, which commenced 13 years later; and then make any form of a

     demand for reimbursement that was refused. Rule 38.1(i), supra.

           In support of all of that, the Appellees present this evidence:

  A. Although the Appellants first received notice of a tax delinquency in late 1983,

     R.R. 2, P. 365, Plaintiff‟s Exhibit No. 1 showed that they did not make the first

     payment until December 2006. R.R. 3, P. 362.

  B. The Appellants notified no Appellee and/or relative of the tax notices, their

     payments, and/or demand reimbursement, and did not inquire of the tax office

     if the taxes were being paid. Id., at 140, 311; R.R. 4, Pp. 65-66; and

  C. They made no effort to determine what other heirs were alive before their suit

     was filed . R.R. 3, Pp. 126 – 27; 306 - 307.

     Therefore, Schluter, supra, is not only inapplicable to their theories of

     equitable relief and the trial court‟s abuse of discretion, its facts are inapposite.

  5. In Hill v. Jarvis, App. Cause No. 12-07-00091-CV (Tex. App. – Tyler 2008,

     writ den‟d)(Memo Op.; not designated for pub‟n), the Opinion stated that “At

     the close of evidence, the parties stipulated that the Jarvises were responsible to

     repay a substantial part of the taxes the Hills paid.



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             The Appellants‟ original and Reply Briefs do not cite a Record reference

      to such evidence in this case. Rule 38.1(i), supra.

   6. In Wheeler v. Phillips, App. Cause No. 03-10-00221-CV (Tex. App. – Austin

      2011, writ denied), the Opinion showed that Phillips, to whom the property in

      question was conveyed, and another began making tax payments on it after

      receiving notices of delinquencies in 1998; that Wheeler had an interest in it in

      1998; and that – more significantly to this case -- he was aware of the

      payments prior to and during the suit‟s pendency.

             Again, the Appellants‟ original and Reply Briefs do not contain a Record

      reference to such evidence. Id.

                          2. THE APPELLEES‟ REPLY TO
                         THE APPELLANTS‟ SECOND REPLY.

      The Appellees first argue that this Reply‟s Argument that they mistakenly

relied on Tex. R. App. Proc. 33.1(a) to rebut the Appellants‟ theory of relief in their

Brief‟s second Issue is itself wrong because the Rule does not state that it is limited to

the admission or failure to admit evidence, and the Argument does not cite authority

supporting that claim.

      In fact, authority holds that a party can present an Issue complaining about a

trial court‟s procedure, but have it overruled through a failure to comply with the

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Rule. In the Interest of D.J.D., 79 S.W.3d 804, 806 (Tex. App. -- Corpus Christi

2002, no writ); have an Issue overruled for a failure to have objected to the trial

court's findings of fact and conclusions of law. Dunn v. Dunn, 177 S.W.3d 393, 398

(Tex. App. – Hous. [1st Dist.] 2005, writ denied), citing cases for the same

conclusion; and have one overruled for a failure to have objected to a jury issue. Hill,

supra, citing Tex. R. Civ. Proc. 272.

      Finally, the Argument does not explain how its cases show that their trial court

committed reversible error in light of the evidence before it. Since the Appellees

have already briefed all of the Argument‟s cases except Casso v. Fullerton, App.

Cause No. 04-05-00905-CV (Tex. App. – San Antonio 2006, writ denied), they will

now only brief the question of whether it supports the Appellants‟ second Issue

alleging reversible error.

      Casso, supra, certainly held that the trial court erred in calculating the Casso‟s

reimbursements, and reversed and remanded the appeal accordingly. However, the

Cassos sued the appellee under an equitable subrogation theory of relief; in contrast,

the Appellants did not, C.R., Vol. 001, Pp. 291-308, and their Briefs do not claim

they did.

      The Appellees argue that those failures are significant to a determination of

whether Casso, supra, has an actual application to this Reply because the doctrine of

                                             -10-


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equitable subrogation allows a party -- who otherwise lacks standing -- to prosecute a

claim belonging to a party with standing. See, e.g., Mid-Continent Ins. Co. v. Liberty

Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007).

        Obviously, the Appellants‟ pleadings and the Record unequivocally show that

they sued the Appellees only on their own behalf. Therefore, Casso, supra, also has

absolutely no application to their Second Issue of reversible error.

        Finally, the Appellants‟ third and fourth consolidated Replies state that they

fervently argued at trial and on appeal that Chapter 29 of the Texas Property Code

was just one of several means to obtain the reimbursement they sought. Reply Brief,

P. 3.

        As the Appellees stated in their Brief, the Record shows that the trial court‟s

Judgment recognized that theory of the Appellants‟ basis for relief [“Both parties find

support in” that Chapter “to urge their respective positions.” C.R., Vol. 002, P. 636, ¶

4., sub-¶ 2.], and the Appellants never thereafter objected to that Finding.

        That being so, the Appellees argue that this Court can properly find that the

Appellants‟ trial and appellate stipulations that they had multiple theories of relief

certainly allowed the trial court to choose which of the theories upon which it would

base its decision to conclude that they were not entitled to a Judgment and, then,

allow it to also properly find that further inquiry into whether the court abused its

                                              -11-


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discretion is foreclosed.

      The Appellees next argue that even if this Court were to find the trial court

abused its discretion (which they again deny happened given the context of the

Record and the Appellants‟ stipulations), it was invited error and, therefore, its

review can be properly denied on that basis.

                      3. THE APPELLEES‟ REPLIES TO THE
                    APPELLANTS‟ THIRD AND FOURTH REPLIES.

      At the outset, the Appellees argue that the Appellants‟ first claim that they did

not rely on Chapter 29, supra, for relief is completely irreconcilable with their next

claim that they fervently argued at trial and on appeal that it was one of several means

to get reimbursed, and these Replies‟ consolidated Argument does not contain a

Record reference showing that at any point in the trial proceedings did they argue that

although the Chapter was one means to obtain reimbursement, there was another that

superseded it because of the evidence before the court. Rule 38.1(i), supra.

      The Appellees next argue that the Argument should be disfavored because it

also does not cite authority to support their theory of reversible error. Id.

      As for their reliance on the citation by publication, it is questionable because

the Argument does not show where in the referenced pages strict compliance with

Tex. R. Civ. Proc. 113 - 117 was complied with as to the persons named in their

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Brief.

         Finally, as was noted, the Appellants‟ Third Petition replaced their previously-

filed Petitions. Case law holds that as a general rule citation need not be reissued if

an amended Petition is filed; however, if it alleges a more onerous cause of action, it

must be effected in accordance with Tex. R. Civ. Proc. 21a. In re E.A., 287 S.W.3d 1,

4 (Tex. 2009).

         In that regard, the Appellants‟ first two Petitions made no reference to their

alleged right to be reimbursed for tax payments on the property in question, but

generally sought Judgments holding that they owned it in equal undivided shares,

granting them court costs, attorney‟s fees, and such other and further relief, general or

special, at law or in equity, to which they may be shown to be justly entitled. C.R., P.

16 & 163.

         However, their Third Amended Petition alternatively sought a Judgment

against the Appellees for the taxes the Appellants paid, and a lien against the

property, etc. Id., at 305.

         The Appellees argue that the Prayer made the Appellants‟ cause of action

against them more onerous and, therefore, any non-answering defendant must have

been served with a copy of that Petition in conformity with Rule 21a, supra. In re

E.A., 287 S.W.3d at 4.

                                           -13-


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                                     PRAYER


      Based on their Responses to the Appellants‟ Brief‟s ISSUES and the foregoing

Replies, the Appellees again pray that this Court will affirm the trial court‟s

Judgment, and assess against the Appellants all costs and fees allowable by law and

equity.


                                     Respectfully Submitted By:



                                     _____ / JOHN A. OLSON / ____

                                     JOHN A. OLSON
                                     Tex. Bar No. 15274750
                                     20634 Creek River
                                     San Antonio TX 78259-2084
                                     210-307-0335 Office
                                     210-402-3924 Fax
                                     jaolson_ccda@yahoo.com

                                     For the Appellees

                          CERTIFICATE OF SERVICE.

I delivered a copy of the Appellees‟ Brief to the Law Offices of Mr. Keith P. Miller

and Ms. Megan C. Kucera, the Appellants‟ Attorneys, on 19 August 2015.


                                     _____/ JOHN A. OLSON /_______

                                     JOHN A. OLSON

                                       -14-

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                         CERTIFICATE OF COMPLIANCE

This Brief‟s font is 14 points and contains less than 4,000 words.

                                       ______ / JOHN A. OLSON / _______

                                       JOHN A. OLSON




                                         -15-


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