                                                                                              ACCEPTED
                                                                                         12-14-00007-CV
                                                                             TWELFTH COURT OF APPEALS
                                                                                          TYLER, TEXAS
                                                                                     4/7/2015 3:33:25 PM
                                                                                            CATHY LUSK
                                                                                                  CLERK




                            No. 12-14-00007-CV
                                       In the Court of Appeals
                                   Twelfth Court of Appeals District
                                             Tyler, Texas

                                  REX SMITH and NANCY SMITH,
                                                             Appellants

                                                  v.

                             KELLY DAVIS AND AMBER DAVIS
                                                             Appellees


                           Appealed from the 294th Judicial District Court
                                      Van Zandt County, Texas



           APPELLEES’ REPLY TO APPELLANT’S RESPONSE TO
     MOTION FOR REHEARING OF OPINION RENDERED FEBRUARY 18, 2015



ATTORNEY FOR APPELLEES:
S. Gary Werley
Law Office of S. Gary Werley
Texas State Bar No. 21187000
1840 Acton Highway, Suite 102
Granbury, Texas 76049
817-573-7700
817-573-7710 - fax
sgwerley@werleylaw.com




Appellees’ Motion for Rehearing                                                  Page 1
TO THE HONORABLE JUSTICES OF SAID COURT:


      NOW COMES, Kelly Davis and Amber Davis, Appellees, and files this Reply

to Appellant’s Response to Motion for Rehearing of the Court’s Opinion Rendered

on February 18, 2015, and for same would show unto the Court the following:

                                         I.

      In Reply to the Response to the Rehearing as filed by the Smiths, the Davis’

herein state as follows:

      1. As to the issue of overcompensation to the Davis’.

          In the original motion for rehearing the Defendant did not object to the

          amount of actual damages. Notwithstanding same the Court modified same

          in its opinion and judgment. Appellee’s Motion for Rehearing pointed out

          the failure to object. The Response does not address same.



          Mr. Davis testified that the agreement between the parties was that all

          monies paid on Tract 9 would be applied to Tract 7. (RR P. 74). Rex

          Smith never called and said that they were late or missed a payment. (RR

          P. 30). The lawsuit was filed in February of 2008, and Davis was paid up

          at that time. (RR P.29). The jury believed Mr. Davis.
   The Response makes the statement that “when the parties agreed to a deal

   on Lot 7, Smith agreed to accept a return of Lot 9, that the Davis’ account

   accrued equity on that Lot – the $3,700.00 – as a down-payment on Lot 7.

   There is no evidence to support this statement. There is no testimony

   concerning equity. The jury did not believe Smith.



2. As stated in the Motion for Rehearing filed by the Davis’, the pleadings

   filed by Plaintiff stated that violations of the sections of the Texas Property

   Code, in several instances, allowed for attorney’s fees under the DTPA.

   For instance, §5.069 provides that the Seller shall provide the Purchaser a

   survey. §5.070, not addressed by Appellant, provides that the Seller shall

   provide the Purchaser tax certificates. These items were not provided as

   found by the jury in response to Jury Questions. Both Sections state that

   the “failure to provide the information required by this Section is a false,

   misleading or deceptive act or practice within the Deceptive Trade Practice

   Act, and entitles the Purchaser to cancel and rescind the Executory

   Contract and receive full refund of all payments made to the Seller.

       Either one of these disclosures would have disclosed that the property

   described as Lot 7 of the Tall Oaks Estates Subdivision, Van Zandt

   County, did not exist. (Pl’s Exh. 3, Def’s Exh 7A, RR 94). The jury found

   that as a result of the failure to provide a survey and/or tax certificates for
         the property that did not exist, the Davis’ relied upon these

         misrepresentations, and subsequently suffered damages in excess of

         $33,000.00. As a result the actions of Mr. Smith, attorney’s fees are due.



      WHEREFORE, PREMISES CONSIDERED, Appellee requests that this

Court grant the damages as found by the jury for violation §5.077 of the Property

Code, the actual damages found by the jury, as well as attorney’s fees.




                                      LAW OFFICES OF S. GARY WERLEY

                                      BY:___/s/ S. Gary Werley_____
                                           S. GARY WERLEY
                                           State Bar No. 21187000
                                           sgwerley@werleylaw.com

                                      1840 Acton Highway, Suite 102
                                      Granbury, Texas 76049
                                      (Telephone) 817-573-7700
                                      (Facsimile) 817-573-7710


                                      ATTORNEY FOR APPELLEES
                         CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of Appellees’ Reply to
Appellant’s Response to Motion for Rehearing has been forwarded to the following
attorneys of record on this day of e-filing:

Via email or efiling
Jeffrey C. Irion
P. O. Box 5527
Gun Barrel City, TX 75147-5012
Jirionattorney@aol.com

Greg Smith
Ramey & Flock, PC
100 E. Ferguson, Suite 500
Tyler, Texas 75202
GregS@rameyflock.com
                                    By:__/s/ S. Gary Werley_________
                                       S. GARY WERLEY
