                                                                                                ACCEPTED
                                                                                            03-14-00463-CV
                                                                                                    8103727
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       12/4/2015 5:06:26 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                                 No. 03-14-00463-CV

DON & CAROL TITEL,                       §                  IN THE THIRD
                                                                     FILED IN
Appellants                                                      3rd COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                         §                  COURT   OF APPEALS,
                                                                12/4/2015 5:06:26 PM
v.                                                                JEFFREY D. KYLE
                                         §                  TEXAS       Clerk
MORRIS & LISA MELCHOR,
Appellees                                §


                           MOTION FOR REHEARING

        Comes now Appellants, by and through counsel, to move the Court to

reconsider its opinion rendered in this case on Nov. 18, 2015. As grounds therefor,

Counsel would show:



1.      Misapprehension of Facts in the Summary Judgment Proofs

In its opinion, the Court relied upon to evidentiary points in reaching its decision.

Specifically, these involved the lack of summary judgment evidence on two points:

     A. No right of Control of Occupiers.

        At page 3 of its opinion, the Court states, “[A]ppellants cite no evidence in

the record demonstrating any right of appellees to control Jeremy and Edwards’s

care of the Melchor Property or any exercise of actual control by them over the

care of the property.” Appellants respectfully direct attention to the following

portions of Appellants’ brief and reply brief where such evidence was cited:



                                             1
      1) Footnote 11 (Jeremy allowed to live on property at Appellees’ pleasure)

      2) Footnote 14 (Jeremy could be kicked off property at any time)

      3) Footnote 15 (Appellees’ intent was to fix up home for eventual resale)

      4) Footnote 16 (Appellees’ intent was to provide a good home for

         grandchildren)

      5) Footnotes 27 & 28 (controlled electric service for the first year)

      6) Footnotes 24 & 25 (paid contractors, controlled repairs and new

         construction)

      7) Footnote 33 (Appellee Lisa Melchor was present on the property for

         months)

      8) Footnote 26 (Appellees’ stored equipment for their business on the

         property)

   B. No Agency.

      The Court’s opinion cites F.F.P. Operating Partners, L.P. v. Duenez, 237

S.W.3d 680, 685 (Tex. 2007) for the proposition that an agency must be

“undertaken to further principal’s objectives.” (Opinion at p. 3). Since the

Appellees stated their son’s primary incentive for managing the property was to

provide a good home for children, it follows that he was their agent for that

purpose. This responsibility defines the scope of the agency. Thus, as regards the




                                          2
safety, comfort, and support of children at least, Jeremy was the owner’s agent in

charge of the property and all persons invited thereon.

       Appellants submit that the mere fact of ownership granted Appellees

absolute power over anyone using their property. That alone gave them control

over all persons and activities unless there was a lease limiting those powers. But

this was not a lease situation. While Jeremy claimed to be leasing, there was other

evidence there was no lease therefore making all persons in control of the property

mere licensees. There was no written lease,1 and the Appellee’s insurance policies

made it clear theirs was not a tenant occupied property. The declarations page and

the definitions in the policy made a distinction between "immediate family"

occupied and "tenant occupied" properties.2 Furthermore a separate liability policy

covering their property at the time of the fire showed it covered as an “additional

residence,” belonging to Appellees.3

       The summary judgment evidence need not be conclusive, but merely

establish more a genuine issue of fact. That Appellees retained title and a position

to assert control at any time is undisputed, and this alone should be sufficient to

create a jury question in the absence of conclusive proof of an arm’s length

landlord/tenant relationship. To give additional authority made Jeremy and his


1 Joi Nelson Depo. 96 (CR 812); Jeremy Melchor Depo. 19:13-15 (SCR 466).
2 See Germania Policy declarations page and relevant portions of the policy (CR 73-75).
3 The relevant declaration page appears at CR 621-22).



                                               3
girlfriend their agents. The record is replete with proof that Appellees gave carte

blanche authority to Jeremy to do as he pleased.4 Appellees could have exercised

control to regulate all use of the property. Choosing not to should not absolve

them of responsibility for the acts of their agents carried on there.


                                            PRAYER
       WHEREFORE, Defendant prays this court reverse the summary judgment.

                                              Respectfully submitted,




                                              Paul C. Velte IV
                                              Attorney for Appellants
                                              109 E. Hopkins St., Ste. 204
                                              San Marcos, TX 78666
                                              512-353-2299
                                              512-476-9504 FAX
                                              Email: velte@ptexans.com
                                              Bar #20541700

                               CERTIFICATE OF SERVICE

      I hereby certify that I have served a copy of this document upon Jay Lea,
Counsel for Appellee, Naman, Howell, Smith & Lee, 8310 Capital of Texas Hwy.
North, Ste. 490, Austin, TX 78731, by facsimile transmission this date to: 512-
474-1901 or by e-service.




4For example, Jeremy tore down a fence--being constructed by a neighbor--ostensibly for
encroaching on the property line. This is clearly not the act of a mere tenant or licensee, but that
of an agent acting with an owner’s authority. See, Jose Rodriguez Depo. 14:22-16:2 (CR 321-
23).


                                                 4
                                             Paul C. Velte IV

                                 CERTIFICATE OF LENGTH

       I hereby certify that the length of this motion is 709 words total, as shown by word
processor.




                                             Paul C. Velte IV




                                                5
