                                                                                ACCEPTED
                                                                           01-14-00571-cv
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                       1/9/2015 5:57:48 PM
                                                                      CHRISTOPHER PRINE
                 CAUSE NO. 01-14-00571-CV                                           CLERK




               IN THE COURT OF APPEALS            FILED IN
            FOR THE FIRST JUDICIAL DISTRICT1st COURT OF APPEALS
                                               HOUSTON, TEXAS
                    HOUSTON, TEXAS         1/9/2015 5:57:48 PM
                                                    CHRISTOPHER A. PRINE
                                                          Clerk
          TED KALDIS AKA TED LEFTERIS KALDIS,
                       Appellant,

                            VS.

                     CREST FINANCE,
                        Appellee.


         ON APPEAL FROM THE 281 DISTRICT COURT
                OF HARRIS COUNTY, TEXAS
            The Honorable Sylvia Matthews, Presiding
                    Cause No. 2012-71189


             THE APPELLANT’S REPLY BRIEF


                                  Gus E. Pappas
                                  State Bar No. 15454850
                                  Nicole M. Hilburn
                                  State Bar No. 24055663
                                  DABNEY & PAPPAS
                                  1776 Yorktown, Suite 425
                                  Houston, Texas 77056
                                  (713) 621-2678 Telephone
                                  (713) 621-0074 Facsimile
                                  gus@dabneypappas.com
                                  ATTORNEYS FOR APPELLANTS

ORAL ARGUMENT REQUESTED           January 9, 2015
                                             TABLE OF CONTENTS
                                                                                                                     Page

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Objection to Regulated Lending Portion of Appellee’s Brief. . . . . . . . . . . . . . . . . 2

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.       APPELLEE’S CLAIM AGAINST APPELLANT IS BARRED BY THE
         STATUTE OF LIMITATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Certificate of Compliance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                              i
                                        INDEX OF AUTHORITIES

TEXAS SUPREME COURT CASES

Barker v. Eckman, 213 S.W.3d 306 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 3

APPELLATE COURT CASES

Bicknell v. Wells Fargo Bank, N.A., No. 11-08-00203-CV, 2010 WL 1635832
(Tex. App.-Beaumont Apr. 22, 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Colvin v. Tex. Dow Emps. Credit Union, No. 01-11-00342-CV,
2012 WL 5544950 (Tex. App.-Houston [1st Dist.] 2012, no pet.).. . . . . . . . . . . . . 3

Dodeka, L.L.C. v. Campos, 377 S.W.3d 726
(Tex. App.-San Antonio 2012, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATUTES

TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

TEX. CIV. PRAC. & REM. CODE § 16.004(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. APP. P. 38.1(k)(1)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2




                                                         ii
                            CAUSE NO. 01-14-00571-CV


                        IN THE COURT OF APPEALS
                     FOR THE FIRST JUDICIAL DISTRICT
                             HOUSTON, TEXAS


                 TED KALDIS AKA TED LEFTERIS KALDIS,
                              Appellant,

                                           VS.

                                  CREST FINANCE,
                                     Appellee.


                 ON APPEAL FROM THE 281 DISTRICT COURT
                        OF HARRIS COUNTY, TEXAS
                    The Honorable Sylvia Matthews, Presiding
                            Cause No. 2012-71189


                         THE APPELLANT’S REPLY BRIEF


TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

       COMES NOW, TED KALDIS AKA TED LEFTERIS KALDIS, Appellant

herein, and files this his brief in support of his prayer that this Court reverse the trial

court’s entry of its May 22, 2014 Final Judgment and render a take nothing judgment

in its place, and for such other and further relief, at law and in equity, to which the

Appellant is entitled.



                                            1
     OBJECTION TO REGULATED LENDING PORTION OF APPELLEE’S BRIEF

      Appellant objects to the regulated lending section of Appellee’s Brief, which

begins on page 13, as it contains no cites to case law or other legal authority other

than The Truth and Lending Act, and even then, only general cites are included.

Additionally, the Appellee failed to include the Truth and Lending Act in its

Appendix, as required by Texas Rule of Appellate Procedure 38.1(k)(1)(c). By

failing to include the Truth and Lending Act in its Appendix and only citing the same

generally, Appellant is unable to properly address the Truth and Lending Act’s

applicability to Appellee’s arguments as to the same. Accordingly, the Court should

disregard the regulated lending arguments by Appellee beginning on page 13 of

Appellee’s Brief.

                                     ARGUMENT

I.    APPELLEE’S CLAIM AGAINST APPELLANT IS BARRED BY THE
      STATUTE OF LIMITATIONS.

      Appellee asserts that Appellant has not objected to any specific finding of fact

or conclusion of law. However, it is clear from Appellant’s Brief, Appellant clearly

takes issue and objects to Conclusions of Law 2,3,4, 5, and 6.

      In that regard, now that Appellee is changing its position in that it is no longer

claiming its lawsuit was filed on a suit on sworn account, it is clear that the trial

court’s May 22, 2014 Final Judgment should be reversed and a take nothing judgment


                                           2
rendered by this Court. The trial court’s findings of fact and conclusions of law,

which resulted in a judgment favorable to the Appellee, were based on law applicable

to suits on sworn account, and not suits such as this one, which are based on the non-

payment of a debt.

      A suit on a debt must be brought "not later than four years after the day the

cause of action accrues,"1 and regardless of whether a debt results from credit card

agreement or a line of credit, as is the case here, in a suit for the non-payment of debt,

the cause of action accrues from the date of default based on the general rule that a

breach of contract action accrues immediately upon a breach. See Colvin v. Tex. Dow

Emps. Credit Union, No. 01-11-00342-CV, 2012 WL 5544950, at *9 (Tex.

App.-Houston [1st Dist.] 2012, no pet.); Bicknell v. Wells Fargo Bank, N.A., No.

11-08-00203-CV, 2010 WL 1635832, at *2 (Tex. App.-Beaumont Apr. 22, 2010, no

pet.) (mem. op.) (holding, in an action by Wells Fargo Bank to recover debt on two

lines of credit, Wells Fargo's cause of action accrued when the default occurred.)

See Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006). Accordingly, to the well

established law cited herein above and in Appellant’s Brief, Appellee’s claims against

Appellant accrue from Appellant’s alleged default on or about September 6, 2008.

Dodeka, L.L.C. v. Campos, 377 S.W.3d 726 at 730 (breach of contract occurred thirty



      1
             Tex. Civ. Prac. & Rem. Code Ann. §16.004(a)(3).

                                            3
days after last minimum monthly payment was made.) Here, the last minimum

monthly payment was made on August 7, 2008, with the next payment being due on

or before September 5, 2008 under the Agreement.2 The Appellee waited to file the

suit until December 3, 2012,3 three (3) months late given its September 4-5, 2012

deadline to do so based on the applicable four year statute of limitations. Therefore,

Appellant’s debt collection/breach of contract claim is barred by the statute of

limitations under Texas Civil Practice & Remedies Code § 16.004(a)(3), as the cause

of action accrued more than four years prior to the Appellee filing suit.

      In Appellee’s Brief, the Appellee cites to Section 16.004(c) of the Texas Civil

Practice and Remedies Code for the proposition that the Appellee’s cause of action

against the Appellant accrued on the day the dealings between the parties ceased.

However, based on the facts of this case and the Appellee’s representations to the

Court, both in its pleadings and at trial, the basis of this lawsuit was Appellant’s non-

payment of debt,4 and, therefore, this case falls under Texas Civil Practice &

Remedies Code §16.004(a)(3), not Texas Civil Practice & Remedies Code

§16.004(c), and pursuant to §16.004(a)(3), Appellee’s December 3, 2012 petition was

filed beyond the applicable statute of limitations.

      2
             R. R. Vol. 2, p. 53.
      3
             C.R. Vol. 1, p. 4-27.
      4
             C.R. p. 4-6; R.R. Vol. 1 p. 8, line 23 and 24; Vol. 1 p. 20, line 12

                                               4
      Based on the above and foregoing, the Court should reverse the trial court’s

final judgment in this case and render a take nothing judgment in its place.

                             CONCLUSION AND PRAYER

      The trial court erroneously entered judgment in favor the Appellee in light of

the statute of limitations barring the Appellee’s claim against the Appellant, requiring

reversal as requested herein.

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that upon a

hearing of this appeal, the Court reverses the trial court’s entry of its May 22, 2014

Final Judgment and render a take nothing judgment in its place, and for such other

and further relief, at law and in equity, to which the Appellant is entitled.




                                           5
    Respectfully submitted,

    DABNEY & PAPPAS

    By: /s/ Gus E. Pappas
       Gus E. Pappas
       State Bar No. 15454850
       Nicole M. Hilburn
       State Bar No. 24055663
       1776 Yorktown, Suite 425
       Houston, Texas 77056
       713-621-2678 Telephone
       713-621-0074 Facsimile
       gus@dabneypappas.com
       nicole@dabneypappas.com

    ATTORNEYS FOR APPELLANTS




6
                             CERTIFICATE OF SERVICE

      In accordance with TEX. R. CIV. P. 21a, I, Gus E. Pappas, counsel for the
Appellants, do hereby certify that a true and correct copy of the foregoing Appellant’s
Reply Brief was served on the Appellee, by and through its attorney of record,
Andrew Olivo, 1622 E. Beltline Rd, Suite 100, Carrollton, Texas 75006, via
facsimile, on this the 9th day of January, 2015.

                                           /s/ Gus E. Pappas
                                           Gus E. Pappas


           CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

1.    This reply brief complies with the type-volume limitation of Tex. R. App. P.
      9.4(i)(2)(c), because this reply brief contains 936 words.

2.    This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
      and the type style requirements of Tex. R. App. P. 9.4(e), because this Reply
      Brief has been prepared in proportionally space typeface using WordPerfect 12
      in 14 point font size in Times New Roman typeface.

Dated:       January 9, 2015

                                           /s/ Gus E. Pappas
                                           Gus E. Pappas




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