                                                                                                ACCEPTED
                                                                                           13-15-00211-CV
        FILED                                                              THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                      CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI                                                               9/28/2015 12:00:00 AM
                                                                                          Dorian E. Ramirez
          9/29/15                                                                                    CLERK

DORIAN E. RAMIREZ, CLERK              No. 13-15-00211-CV
BY DTello

                                                              RECEIVED IN
                                                        13th COURT OF APPEALS
                                          IN THE     CORPUS CHRISTI/EDINBURG, TEXAS
                                    COURT OF APPEALS     9/28/2015 8:00:00 AM
                               THIRTEENTH DISTRICT OF TEXAS
                                                          DORIAN E. RAMIREZ
                                                                 Clerk
                          AT CORPUS CHRISTI-EDINBURG
        __________________________________________________________________
                           SANDRA MARIBEL ARROYO,
                                     Appellant,

                                              v.

                                    CRISTO REY GARZA,
                                         Appellee


            Appealed from the 370th Judicial District Court, Hidalgo County, Texas


                               APPELLANT’S AMENDED BRIEF




                                            Timothy Audrey Davis
                                            State Bar No. 0070570
                                            LAW OFFICE OF TIMOTHY A. DAVIS
                                            1320 N. 10th Street, Suite 140
                                            McAllen, Texas 78501
                                            (956) 664-2000
                                            Fax (956) 664-2500
                                            McAllenLawDavis@gmail.com

                                            ATTORNEY FOR APPELLANT
                   IDENTITY OF PARTIES AND COUNSEL

       Pursuant to Tex. R. App. P. 38.1(a), the following is a complete list of all
parties to the trial court’s judgment and the names and address of al trial and
appellate counsel:

      Appellant: Sandra Maribel Arroyo

      Trial Counsel for Sandra Maribel Arroyo:

             Rene A. Flores
             Attorney at Law
             403 Conway
             Mission, Texas 78572
             (956) 316-1991
             Facsimile (956) 316-2131
             Rene.flores@yahoo.com

      Appellant Counsel for Sandra Maribel Arroyo:

             Timm Davis
             LAW OFFICE OF TIMOTHY A. DAVIS
             1320 N. 10th Street, Suite 140
             McAllen, Texas 78501
             (956) 664-2000
             Facsimile (956) 664-2500
             McAllenLawDavis@gmail.com

      Appellee:     Cristo Rey Garza

      Trial and Appellate Counsel for Cristo Rey Garza:

             Justino “J.R.” Garza
             LAW OFFICE OF JUSTINO “J.R.” GARZA
             2223 Primrose Avenue
             McAllen, Texas 78504
             (956) 664-0011
             Facsimile (956) 664-2189
             jgarza@rocketmail.com
                                          1
                            TABLE OF CONTENTS

Identities of Parties and Counsel ………………………………………………...1

Table of Contents ...……………………………………………………………...2

Index of Authorities....……………………………………………………………3

Statement of the Case…………………………………………………………….4

Statement Regarding Oral Argument…………………………………………….5

Issues Presented...………………….…………………………………………….6

Statement of Facts………………………………………………………………..7

Summary of the Argument.………………………………………………………10

Argument..………………………………………………………………………..10

    ISSUE NO. 1

    Whether the Order Granting Plaintiff’s Motion for Summary Judgment
    should be reversed and the case remanded because Appellant was not
    properly served with the summary judgment motion, nor provided proper
    notice by the Court of the settings for the summary judgment motion……11

    ISSUE NO. 2

    Whether the Order Granting Plaintiff’s Motion for Summary Judgment
    should be reversed and the case remanded because the court’s clerk failed to
    comply with Rule 306a (3), Texas Rules of Civil Procedure, requiring the
    clerk to immediately give notice to the parties when a final judgment or
    other appealable order is signed..………………………………………..15

Prayer…………………………………………………………………………...16

Appendix………………………………………………………………………..19

                                      2
                         INDEX OF AUTHORITIES

Cases

Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 354, 255 (Tex. 2009)…………….9

Clopton v. Park, 66 S.W.3d 513, 515 (Tex. App.-Fort Worth 2001, pet. denied)…9

Norman Commc’ncs v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) ……9

Autozone, Inc. v. Duenes, 108 S.W.3d 917, 919 (Tex. App.-Corpus Christi 2003,

no pet.)……………………………………………………………………………...9

General Electric Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942,
944 (Tex. 1991)……………………………………………...……………………..9

Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex.2009)……………………………..13

In re Lynd Co., 195 S.W.3d 686 (Tex. 2006)…...………………………………...13

Rules of Court

Tex. R. App. P. 30….………………………………………………………………9

Tex. R. App. P. 26.1(c)….………………………………………………………….9

Rule 306a (3), Tex. R. C. P……………………………………………………….12

Rule 306a (1), Tex. R. Civ. P……………………………………………………..13




                                       3
                          STATEMENT OF THE CASE

      References to the Clerk’ Record shall be denoted as “CR[page].”

      Cristo Rey Garza (“Garza”) filed suit against Sandra Maribel Arroyo

(“Arroyo”) contending that two properties owned by Arroyo had in actuality been

purchased with money provided by Cristo and that the parties had an unwritten

agreement that both of the properties would be transferred or conveyed to Cristo in

the future. (CR 9-21). Garza’s petition sought damages for breach of contract

and sought a judicial determination that the factual allegations set forth therein

established a purchase money resulting trust for one of the properties and a

constructive trust for the other property. (CR 9-21). Arroyo filed a pro se general

denial to Garza’s petition. (CR 25-26).

      The trial court granted Garza’s Motion for Summary Judgment awarding

Garza effective ownership of one of the two properties he had sued for. (CR 91-

92). Arroyo appeals from that judgment.




                                           4
           STATEMENT REGARDING ORAL ARGUMENT

Appellant Sandra Maribel Arroyo does not request Oral Argument in this case.




                                     5
                       ISSUES PRESENTED

(1) Whether the Order Granting Plaintiff’s Motion for Summary Judgment
    should be reversed and the case remanded because Appellant was not
    properly served with the summary judgment motion, nor provided proper
    notice by the Court of the settings for the summary judgment motion.

(2) Whether the Order Granting Plaintiff’s Motion for Summary Judgment
    should be reversed and the case remanded because the court’s clerk failed
    to comply with Rule 306a (3), Texas Rules of Civil Procedure, requiring
    the clerk to immediately give notice to the parties when a final judgment
    or other appealable order is signed.




                                  6
                           STATEMENT OF FACTS

  The Reporter’s Record was requested, but the trial court’s court reporter sent

  correspondence indicating that no oral testimony had been taken in the case.

      On October 23, 2014 Garza filed his “Plaintiff’s Motion for Summary

Judgment”. (CR 35-87). In the summary judgment Garza only sought a judgment

declaring that there was a purchase money resulting trust concerning one of the

properties and did not seek judgment on his causes of action for breach of contract

or constructive trust. (CR 35-87). On October 24, 2014 the trial court set the

summary judgment for a “submission date” of November 14, 2014 with Arroyo’s

response being due “November 7, 2013”. (CR 88). The correspondence was

copied to the parties by a “cc” at the bottom of the letter. (CR 88). Arroyo was

allegedly sent a copy of the notice, but her mailing address was not included with

the correspondence. (CR-88).

      Four days later, on October 27, 2015, the trial court prepared an Amended

Notice giving a “submission date” of December 1, 2014 and setting Arroyo’s

response date at November 24, 2014. (CR 89).

      The trial court set the summary judgment for “submission” on December 1,

2014, with Arroyo’s “response” date being set for November 24, 2014. On this

Amended Notice Arroyo was allegedly given notice via mail as the correspondence

includes a “cc” at an address of “15200 N. Moorefield Road, Mission, Texas
                                         7
78574.” (CR 89). Garza’s counsel was apparently provided notice of the settings

via his mailing address. (CR 89).

      The trial court apparently considered the motion on December 16, 2014 and

created correspondence indicating that Garza’s motion for summary judgment had

been granted. (CR 90). On this correspondence Garza’s counsel was apparently

provided notice via an email address and Arroyo was mailed notice at “15200 N.

Moorefield Road, Mission, Texas 78572.” (CR 90). On December 22, 2014 the

trial court signed and entered the “Order Granting Plaintiff’s Motion for Summary

Judgment” (CR 91-92). The order does not indicate that it was transmitted to

either party. (CR 91-92).

      On February 2, 2015, forty-two (42) days after the order granting Garza’s

motion for summary judgment had been signed and entered, the court’s clerk sent

notice to the parties of the order pursuant to Rule 306(a)(3), Texas Rules of Civil

Procedure. (CR 93-94). The Rule 306(a)(3) notice sent to Garza was apparently

mailed to Garza’s attorney at his street address, but the notice to Arroyo merely

stated her name and did not include any type of address indicating where the notice

was being sent. (CR 93-94).

      On May 1, 2015 Arroyo timely perfected her restricted appeal pursuant to

Rule 30, Texas Rules of Appellate Procedure. (CR 95-97). Arroyo contends in her

notice of appeal that she did not participate, either through counsel or in person, in
                                           8
the Order Granting Summary Judgment and that she has not filed any post-

judgment motions, request for findings of fact and conclusions of law or a standard

notice of appeal. (CR 95). The trial court’s record indicates that Arroyo did not

file a response to Garza’s motion for summary judgment, that Arroyo did not file

any post-judgment motions and that Arroyo did not file a standard notice of appeal.

(CR 1-100).




                                         9
                      SUMMARY OF THE ARGUMENT

      The Order Granting Plaintiff’s Motion for Summary Judgment should be

reversed and the case remanded to the trial court because Arroyo was not properly

served with the motion and was not given proper notice that the motion had been

set for hearing. The documents and/or motions previously filed and served on

Arroyo preceding the motion for summary judgment had all been served upon

Arroyo’s attorney. The summary judgment motion was not served on Arroyo’s

attorney, but on Arroyo’s supposed home address. There was no indication in the

record that Arroyo’s attorney had ever withdrawn from the case.

      Alternatively, the Order Granting Plaintiff’s Motion for Summary Judgment

should be reversed and the case remanded to the trial court because the court’s

clerk failed to comply with Rule 306a (3), Texas Rules of Civil Procedure, in that

forty-two (42) days elapsed between the time the court signed and entered the

judgment at issue and the time the clerk allegedly provided written notice to

Arroyo. Further, the transmittal letter from the court’s clerk to Arroyo does not

contain an address for Arroyo, but merely states her name.




                                         10
                                   ARGUMENT

                            ISSUE NO 1. RESTATED

           WHETHER THE ORDER GRANTING PLAINTIFF’S MOTION FOR
          SUMMARY JUDGMENT SHOULD BE REVERSED AND THE CASE
            REMANDED BECAUSE APPELLANT WAS NOT PROPERLY
            SERVED WITH THE SUMMARY JUDGMENT MOTION NOR
          PROVIDED PROPER NOTICE BY THE COURT OF THE SETTINGS
                  FOR THE SUMMARY JUDGMENT MOTION

      The Texas Supreme Court has set forth the following elements of a restricted

appeal:

             A party can prevail in a restricted appeal only if: (1) it filed notice of
      the restricted appeal within six months after the judgment was signed; (2) it
      was a party to the underlying lawsuit; (3) it did not participate in the hearing
      that resulted in the judgment complained of and did not timely file any post
      judgment motions or requests for findings of fact and conclusions of law;
      and (4) error is apparent on the face of the record.


Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 354, 255 (Tex. 2009); see Tex. R.

App. P. 30; see also Tex. R. App. P. 26.1(c).

      The first three requirements set forth above are jurisdictional and a restricted

appeal is not available if they are not met. Clopton v. Park, 66 S.W.3d 513, 515

(Tex. App.-Fort Worth 2001, pet. denied); see also Tex. R. App. P. 30. A

restricted appeal is a direct attack on the final order or judgment with the only

limitation being that the scope of review is limited to error that is apparent on the

face of the record.   Norman Commc’ncs v. Tex. Eastman Co., 955 S.W.2d 269,

                                          11
270 (Tex. 1997) (per curiam); Autozone, Inc. v. Duenes, 108 S.W.3d 917, 919

(Tex. App.-Corpus Christi 2003, no pet.). The “face of the record” has been held to

mean all documents on file with the appellate court and all evidence that was

before the trial court. Alexander, 134 S.W.3d 848-49 (citing General Electric Co.

v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991).

      Arroyo clearly meets the first of the three requirements to prevail on a

restricted appeal. With regard to the fourth requirement that error is apparent on

the record, it is clear that Arroyo was not properly served with Plaintiff’s Motion

for Summary Judgment. Arroyo filed a pro se answer to Garza’s lawsuit on

August 13, 2013. (CR 25-26). In that pleading Arroyo’s mailing address was

listed as “15200 N. Moorefield Road, Mission, Texas 78574.” (CR 25).

      On January 27, 2014 Arroyo filed “Defendant’s Certificate of Written

Discovery Directed to Plaintiff Cristo Rey Garza” wherein she provided a mailing

address of “P.O. Box 3662, Edinburg, Texas 78539”. (CR 27). On February 13,

2014 Arroyo filed another “Defendant’s Certificate of Written Discovery Directed

to Plaintiff Cristo Rey Garza” (apparently to supplement her previous discovery

responses) wherein she again provided that “P.O. Box 3662, Edinburg, Texas

78539” mailing address. (CR 28).

      On April 22, 2014 Garza then filed his “Motion to Compel Discovery and

for Sanctions” wherein the certificate of service indicates the motion was served
                                         12
upon attorney Rene A. Flores, either at his office mailing address or via electronic

mail. (CR 29-31). The “Notice of Hearing” for that motion was filed and signed

and entered by the trial court the following day, April 23, 2014, and directed that

copies by provided to Garza’s counsel and attorney Rene A. Flores via electronic

mail. (CR 32). Neither the motion nor the hearing notice included any notation

that Arroyo was being served and/or provided notice of the hearing directly in her

capacity as a pro se respondent.

      On October 23, 2014 Garza filed his “Plaintiff’s Motion for Summary

Judgment”. (CR 35). The certificate of service included with that filing indicates

that Arroyo was to be served at the “15200 N. Moorefield Rd., Mission, Texas

78574” address. (CR 44). The certificate of service indicates that Arroyo was

served on “September 23, 2014” fully a month prior to the motion being filed, and

interestingly includes what appears to be some type of superimposed image of a

United States Postal Service certified mail tracking number. (CR 44).

      The record does not reflect that a response to the summary judgment was

ever filed by, or on behalf, of Arroyo. Further, the record does not reflect that

attorney Rene A. Flores ever formally withdrew from his representation of Arroyo

as required under the Texas Rules of Civil Procedure. There is no explanation in

the record as to why a motion Garza filed in April 2014 was served upon Arroyo’s

attorney, but summary judgment motion filed in October 2014 was allegedly
                                          13
served upon Arroyo in a pro se capacity when attorney Rene A. Flores had not

formally withdrawn from representing Arroyo. The trial court’s “Amended

Notice” providing the parties with the court’s scheduling of the motion for

summary judgment indicates that the notice was sent to Arroyo at the address she

had provided in her initial pro se pleading, but does not indicate that notice was

mailed either to the post office box address she had provided in later filings nor to

attorney Rene A. Flores. (CR 89).

      Arroyo contends that the record clearly indicates that she was never properly

served with Garza’s motion for summary judgment and that she was never given

proper notice of the trial courts deadline for her to respond to the motion. Once an

attorney had appeared on behalf of Arroyo all motions and correspondence should

have continued to be served on Arroyo through her attorney of record, unless and

until the trial court had granted the attorney’s motion to withdraw. The record

before this court shows that Arroyo’s attorney never caused to be filed a motion to

withdraw and that the trial court obviously then never signed an order permitting

Rene A. Flores to withdraw as counsel. As such, purported service of the motion

and notice of deadlines sent to Arroyo at a mailing address Arroyo had only used

in her initial pleading was improper and the Order Granting Plaintiff’s motion for

Summary Judgment must be reversed and the case remanded to the trial court.


                                          14
                             ISSUE NO. 2 RESTATED

    WHETHER THE ORDER GRANTING PLAINTIFF’S MOTION FOR
   SUMMARY JUDGMENT SHOULD BE REVERSED AND THE CASE
REMANDED BECAUSE THE COURT’S CLERK FAILED TO COMPLY WITH
 RULE 306a (3), TEXAS RULES OF CIVIL PROCEDURE, REQUIRING THE
  CLERK TO IMMEDIATELY GIVE NOTICE TO THE PARTIES WHEN A
   FINAL JUDGMENT OR OTHER APPEALABLE ORDER IS SIGNED.

      Rule 306a (3), Texas Rules of Civil Procedure reads:

             3.     Notice of Judgment. When the final judgment or other
             appealable order is signed, the clerk of the court shall immediately
             give notice to the parties or their attorneys or record by first-class mail
             advising that the judgment or order was signed. Failure to comply
             with the provisions of this rule shall not affect the periods mentioned
             in paragraph (1) of this rule, except as provided in paragraph (4).


      Forty-two (42) days passed between the date the trial court signed the Order

Granting Plaintiff’s motion for Summary Judgment, December 22, 2014, and the

date the district clerk’s office allegedly sent its Rule 306a (3) notice letter to

Arroyo, February 2, 2015. (CR 91-93). The notice letter “addressed” to Arroyo

only contained her name, but did not indicate any address that it was being mailed

to. (CR 93). There is no indication in the record as to why there was such a delay

between the time the judgment was rendered and the clerk sending the notice

required under Rule 306a (3), but the effect of Arroyo not receiving notice was that

she was precluded from filing post-judgment motions such as a motion for new



                                           15
trial, motion to modify, motion to vacate judgment and requests for findings of

facts and conclusions of law. See Rule 306a (1), Tex. R. Civ. P.

       While Texas courts have not provided a rigid guideline as to what precisely

Rule 306a (3) requires the clerk to do and what relief is available to someone such

as Arroyo in this case, common sense dictates that a forty-two (42) day period

between the date of judgment and notice being sent, does not satisfy the directive

in the rule that “the clerk of the court shall immediately give notice to the parties or

their attorneys or record by first-class mail advising that the judgment or order was

signed”. (emphasis added), Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009);

In re Lynd Co., 195 S.W.3d 686 (Tex. 2006). Accordingly, this court must reverse

the Order Granting Plaintiff’s motion for Summary Judgment and remand the case

to the trial court.



                              PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Appellant Sandra Maribel

Arroyo requests that this Court reverse the judgment of the trial court granting

Plaintiff’ motion for Summary Judgment and remand the case to the trial court for

further proceedings and for such other relief, both at law and in equity that

Appellant may be entitled.


                                          16
     Respectfully submitted,


     Timothy Audrey Davis
     State Bar No. 0070570
     1320 N. 10th Street, Suite 140
     McAllen, Texas 78501
     (956) 664-2000
     Fax (956) 664-2500
     McAllenLawDavis@gmail.com

        Timothy A. Davis
     ______________________________
     Timothy Audrey Davis
     State Bar No. 0070570

     ATTORNEY FOR APPELLANT




17
                             CERTIFICATE OF SERVICE

      I certify that all counsel of record have been served with a true and correct
copy of the foregoing document on this the 21st day of September, 2015 in a
manner prescribed by the Texas Rules of Civil Procedure.

      Justino “J.R.” Garza
      LAW OFFICE OF JUSTINO “J.R.” GARZA
      2223 Primrose Avenue
      McAllen, Texas 78504
      Via Facsimile (956) 664-2189
      Via Electronic Service jrgarza@rocketmail.com


                                                     Timothy A. Davis
                                                    _______________________
                                                    Timm Davis




                        CERTIFICATE OF COMPLIANCE

       I certify that there are 2,431 words contained in Appellant’s brief, excluding
those items permitted by Tex. R. App. P. 9.4(i)(1).

                                                      Timothy A. Davis
                                                    _______________________
                                                    Timm Davis




                                         18
                                 APPENDIX

A. “Order Granting Plaintiff’s Motion for Summary Judgment”, signed on December
   22, 2014

B. Rule 26, Texas Rules of Appellate Procedure


C. Rule 30, Texas Rules of Appellate Procedure


D. Rule 306a, Texas Rules of Civil Procedure




                                      19
