07-17-00394-CV                                                                                                          ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/25/2018 5:07 PM
Vivian Long, Clerk

                                                   GRIFFITH, JAY, & MICHEL, LLP
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             ROSS P. GRIFFITH
                                                                                      7th COURT     OF APPEALS
                                                                                              Of Counsel
             JAMES V. JAY, IV                                                           AMARILLO,
                                                                                              FRANKLIN TEXAS
                                                                                                         MOORE
                                                                                              WILLIAM M. MURPHY
             THOMAS M. MICHEL
             KELLY E. DeBERRY                                                         5/25/2018   5:07:22
                                                                                              RICHARD         PM P.C.
                                                                                                        L. BOURLAND,
                                                                                                 RICHARD L. BOURLAND
             MARK J. PETROCCHI
             BILL E. BOWERS
                                                                                           VIVIAN    LONGBOURLAND
                                                                                                 ELIZABETH
             EVAN M. McGUIRE                                                                   CLERK
             L. STEPHEN FRANSCINI, V
             LAUREN M. LOCKETT

                                                            May 25, 2018



                                  APPELLANT’S POST-SUBMISSION LETTER BRIEF

              VIA E-FILING
              Vivian Long, Clerk
              Seventh Court of Appeals
              P.O. Box 9540
              Amarillo, Texas 79105-9540

                         Re:           Cause No. 07-17-00394-CV; Ryann Pedone v. Joshua Nelson
                                       Harvey, In the Seventh Court of Appeals, Amarillo

              TO THE HONORABLE COURT OF APPEALS:

                         During oral argument, counsel for the Appellee cited to the Court the case

              of Fusselman v. Fusselman, No. 09-11-00435-CV, 2016 Tex.App.LEXIS 10413

              (Tex.App.—Beaumont September 16, 2013, no pet.)(mem. op.). Fusselman is

              distinguishable from the present case in a number of ways. First, in Fusselman,

              there was a significant dispute whether the parties cohabitated together. In our

              case, it is undisputed that the parties cohabitated for a number of years together.

              Second, in Fusselman, there was just a brief mention that the parties had filed joint

              tax returns. Our case is significantly different in the following respects:
APPELLANT’S POST-SUBMISSION LETTER BRIEF
May 25, 2018
Page 2

      1.     It is undisputed that the parties filed tax returns as filing married for
             the years 2006 through 2013.

      2.     It is undisputed that a third party certified public accountant, Clint
             Brints, prepared and filed joint tax returns on behalf of the parties.

      3.     It is undisputed that another third party certified public accountant,
             Carl Deaton, filed joint tax returns on behalf of the parties.

      4.     It is undisputed that a banker entered into a loan transaction to the
             parties as being married.

      5.     It is undisputed and a judicial admission by Josh himself that he had
             represented to the government for years that he was married to Ryann.

      As discussed during oral argument, this was contemporaneous evidence of

how the parties held themselves out.

      The undisputed evidence of: tax returns, bank documents, financial

statements, CPA testimony, banker testimony, and both parties’ judicial

admissions that they had held out to others that they were husband and wife cannot

be disregarded by the trier of fact.

      An appellate court conducting a legal sufficiency review cannot “disregard

undisputed evidence that allows only one logical inference.” City of Keller v.

Wilson, 168 S.W.3d 802, 814 (Tex. 2005). “By definition, such evidence can be

viewed in only one light, and reasonable jurors can reach only one conclusion

from it. Jurors are not free to reach a verdict contrary to such evidence, indeed,
APPELLANT’S POST-SUBMISSION LETTER BRIEF
May 25, 2018
Page 3

uncontroverted issues need not be submitted to a jury at all.” Id. Not all evidence

is the same. In this case, the trier of fact was not free to disregard this conclusive

evidence. Most often undisputed contrary evidence becomes conclusive (and thus

cannot be disregarded) when it concerns physical facts that cannot be denied. City

of Keller, 168 S.W.3d at 815. For example, evidence that a buyer believed that a

product had been repaired is conclusively negated by an accompanying letter to

the contrary.   Id.; PPG Industries, Inc. v. JBM/Houston Ctrs Partners, Ltd.

P’ship., 146 S.W.3d 79, 97-98 (Tex. 2004). In this case, the contemporaneous

testimony of uninterested witnesses supported by uncontradicted documents as

well as Josh’s own sworn testimony and admission cannot be ignored.

      As such, the Fusselman case does not alter the consideration at issue in this

case. This Court should reverse and render that an informal marriage was

established as a matter of law. In the alternative, the Court should find that the

findings were against the great weight and preponderance of the evidence and

manifestly unjust and should reverse and remand to the trial court for a new trial.

      Appellee also cited the case of Lujan v. Navistar, Inc., 2018 Tex.LEXIS 347

(Tex. 2018) for the proposition that sham affidavits are not evidence and cannot

defeat a motion for summary judgment if the affidavit directly contradicts, without

explanation, previous testimony.     The Supreme Court reasoned that allowing
APPELLANT’S POST-SUBMISSION LETTER BRIEF
May 25, 2018
Page 4

manufactured affidavits to defeat summary judgment would thwart the very

objective of summary judgment that there is no real and genuine issue from those

that are formal or pretended. Id. at *10. In this case, Josh’s attempt to contradict

his sworn deposition testimony that he had read the tax returns, understood them,

signed them, and represented to the Federal Government for years that he was

married to Ryann is a sham in order to avoid a finding of common law marriage.


                                      Respectfully submitted,

                                      /s/ Thomas M. Michel
                                      Thomas M. Michel
                                      State Bar No. 14009480
                                      GRIFFITH, JAY & MICHEL, LLP
                                      2200 Forest Park Blvd.
                                      Fort Worth, Texas 76110
                                      (817) 926-2500 (Telephone)
                                      (817) 926-2505 (Facsimile)
                                      Thomasm@lawgjm.com
                                      ATTORNEY FOR APPELLANT

TMM/kdw
cc: Paul Leopold (Via E-Service paul@koonsfull.com
    Sean Patrick Abeyta (Via E-Service sean@koonsfuller.com)
