December 7, 2015
                        CAUSE NO 03-15-00513-CV




                        In the Court of Appeals
                    Third Court of Appeals District
                             Austin,      Texas




                      ELWYN D.   SHUMWAY,    APPELLANT
                                    vs.

              WHISPERING HILLS OF COMAL COUNTY,          TEXAS
                   PROPERTY OWNERS ASSOCIATION,      INC.,
                                  APPELLEE




    Appeal from Case No. C2015-0215A; 22nd Judicial District
                          Comal County,      Texas
                    Hon. Dibrell Waldrip, Presiding




                                 REPLY BRIEF




  Elwyn D. Shumway
  Pro Se Litigant
  8406   Zodiac

  Universal City, TX 78148                               (^^RECfKP
  (210) 860-6613 Cell                                    /       'C"
  shumd@att.net                                          / DEC ° ^015
                 IDENTITY OF   PARTIES    AND    COUNSEL



Pursuant to Texas Rule of Appellant Procedure 38.1(a),
Appellant presents the following list of all parties and
names and address of its counsel:




Appellant/Plaintiff:                 Pro Se Litigant;
Elwyn D. Shumway                     Elwyn D. Shumway
                                     8406        Zodiac
                                     Universal City, TX 78148
                                         (210)    860-6613 Cell
                                     shumd@att.net




Respondent:
The Honorable Dibrell Waldrip
433rd Judicial District
Comal County, Texas
150 N. Seguin, Suite 317
New Braunfels,   TX 78130




Appellee/Defendant:                  Counsel:

Whispering Hills of Comal            Mr. Zachary B. Aoki
County Property Owners               State       Bar No.     01275870

Association,   Inc.                  Thurman & Phillips,           P.C.
                                     4 093 De Zavala Road

                                     San Antonio,          TX 7824 9
                                         (210)    341-2020
                                     zaoki@thurman-phillips.com
                     TABLE OF CONTENTS


                                           Page


IDENTITY OF PARTIES AND COUNSEL              1

TABLE OF CONTENTS                            2

REPLY BRIEF BY APPELLANT                     3

COMMENTS ON BRIEF OF APPELLEE                6

APPELLANT'S SUMMARY OF BRIEF OF APPELLEE    14

PRAYER                                      16

CERTIFICATE OF COMPLIANCE                   17

CERTIFICATE OF SERVICE                      18
                         CAUSE NO    03-15-00513-CV




                         In the Court of Appeals
                  Third Court of Appeals District
                              Austin,       Texas




                       ELWYN D.    SHUMWAY,    APPELLANT
                                      vs.

              WHISPERING HILLS OF COMAL COUNTY,            TEXAS
                PROPERTY OWNERS ASSOCIATION,          INC.,
                                   APPELLEE




     Appeal from Case No. C2015-0215A; 22nd Judicial District
                           Comal County, Texas
                  Hon. Dibrell Waldrip, Presiding




                                  REPLY   BRIEF




TO   THE   HONORABLE   COURT OF APPEALS:


       Appellant, Elwyn D. Shumway, pro se litigant, files
this Reply Brief to Appellee's Brief of Appellee and

respectfully states:
    At the trial court, Appellee asked the court to dismiss
the case.    The trial court decided to do so and granted

Appellee's request.    The trial judge indicated the
Appellant could appeal the decision.   The Appellant asked
the trial judge what the specific basis was for granting
dismissal.    The trial judge stated that as a matter of law
he was ruling that the statute of limitations has run.      The
trial judge further stated that we are not talking about
the facts, allegations or the merits of the case but rather
we are talking about the facts regarding the statute of
limitations (2RR pgs 58-59 starting at line 6 of pg 58).

    The issue that emerged before the trial court was
whether or not the four year statute of limitations which
applies to promissory estoppel as a cause of action had
expired before Appellant filed his petition on February 14,
2015. To make such a determination the date the statute of

limitations must be established.    As discussed more fully

and properly cited in Appellant's Brief, the Appellee is
required to prove as a matter of law the date on which the
limitation commenced, i.e., when the cause of action
accrued and that the Plaintiff/Appellant filed its petition
outside the applicable limitations period.    When the cause
of action accrued is the date of accrual.    As discussed in

the Appellant's Brief, three conditions need to be met for
a date of accrual to exist:    a legal injury, an actual
controversy or dispute to be resolved by a court, and the
earliest date the plaintiff had authority and an
opportunity to file a claim in court.

    When a movant asserts limitations as a defense,   the

Plaintiff/Appellant then needs to adduce proof, raising
issue in avoidance of the statute of limitations.   The

Appellant has done so in the ISSUES PRESENTED in
Appellant's Brief and firmly believes considering the
information in the record the trial court erred in granting

dismissal.
                 COMMENTS ON BRIEF OF APPELLEE


    On November 25, 2015 the Appellee filed Appellee's
Brief of Appellee.    The following are Appellant's comments
regarding statements made in that brief in the order the
statements are presented.

  1. Reference the last sentence, page viii,     ISSUES

    PRESENTED.     At the June 17, 2 015 hearing,    the trial

    judge did say that as the way the petition is now
    worded there was no basis in law regarding the

    allegations (1RR, page 18, lines 6-10).         However, the
    trial judge provided the Appellant an opportunity to
    rewrite the cause of action which was done in the

    Second Amendment to petition.     Subsequently, the trial
    judge did not make a decision that the pleadings did
    not state a    claim.



  2. Reference second to last line,   page 2,   STATEMENT OF

    FACTS.   The Appellee states that Mr. Bepko stated that
    some owners, including the Appellant, had a dispute
    with the Association.     Actually, Mr. Bepko stated he
    was aware there was a disagreement with ..        (CR 7).

    Perhaps a small distinction except when considering the
    criteria for establishing a date of accrual which
    determines the starting date for statute of
    limitations.     Appellant has explained in ISSUE
    PRESENTED #1 of Appellant's Brief that a cause of
    action does not accrue and the statute of limitations
  is not operative until an actual controversy has
  arisen.     There was no actual controversy or big dispute

  created until well within the period of limitations.



3. Reference page 4, SUMMARY OF THE ARGUMENT. Appellee

  states the trial court acted properly because the

  allegations establish that the APPELLANT had no right
  to use his lots for business purposes. The record does

  not reflect the trial judge making such a decision.

  Furthermore,    this is a matter to be determined when and

  if the Appellant's Petition is heard in a court of law

  and is not a factor pertaining to the issue of

  limitations.     What the trial judge did,   however,   is

  grant Appellee's Motion to Dismiss thus preventing

  Appellant's petition from being considered by a court

  unless the Court of Appeals agrees with the Appellant's

  appeal.

      On this page,      the Appellee also states the trial

  court acted properly because the Appellant knew he

  could not use his property for business purposes more

  than four years before he filed suit.        Case law does

  not provide that simply knowing something for an

  undetermined period of time starts the time for statute

  of limitations to begin.      The criteria and standard for
  doing so,    i.e.,   to establish a "date certain" is

  discussed fully in the ISSUES PRESENTED of Appellant's
  Brief.
4. Reference Sections I,    II and III,   pages 5 to 9,

  ARGUMENT.     In Section I, Appellant agrees the court is

  to review de novo and wishes to point out that all the

  matters included in Appellant's Brief are included in

  the record considered by the trial judge.           Also,

  Appellant wishes to point out that even though

  Appellant's Second Amended Petition is part of the

  record, the trial judge never read it       (2RR, pg 6, lines

  7-9); however,     it was made known that the cause of

  action in the rewritten petition was promissory

  estoppel.    Even though the trial judge did not read the

  Second Amendment, the Appellant believes the Court of

  Appeals should include it in its consideration.             The
  exhibits are the same for the Original, the Amended and

  the Second Amendment.      In Section II,   the Appellee

  states the trial court did not have the power to

  rewrite the unambiguous deed.      Appellant has never

  asked the court or the homeowners association          (i.e.,

  Appellee)   to rewrite or change the deed as written and
  recorded in any way (see 2RR, pg 17, lines 9-16 and pg

  31,   lines 7-8)   and there is no need to.    As discussed

  in the Second Amended Petition, Appellant's request to

  use lots    for either residential or business can be

  accommodated without any change to the deed.           (Note:

  With regard to the court's authority,       item 17 of the

  deed restrictions does     indicate a   court has    the

  authority to invalidate any of the covenants and

  restrictions.      See Exhibit "A" to Enclosure,      CR 8).

                              8
The remainder of Appellee's statements in Section II do
not pertain to the issue of limitations.       In Section
III, page 7,the Appellee has added a footnote referring
to Federal Rule for Civil Procedures 12(b)(6)       which is

included as Appendix A.      That rule provides that the
failure to state a claim upon which relief can be
granted may be used as a defense but that defense is to
be made by a motion. There is no such motion in the
record considered by the trial court. In the footnote,
Appellee refers to GoDaddy.com LLC v. Toups (the cite
is provided in the footnote).       In this case, under II
STANDARD OF REVIEW,      several cases are cited.   Of note

is Ashcroft, 556 U.S. at 678-79,      129 S. Ct. 1937 which
provides that under Federal rules, the complaint is
liberally construed in favor of the plaintiff and all
well pleaded facts are taken as true.       In Twombly, 550
U.S. at 570, 127 S. Ct. 1955,      it is concluded that in

determining whether the trial court erred the court is
to take all of plaintiff's allegations as true and
conclude whether plaintiff's petition contains enough
facts to state a claim to relief that is plausible on
its face.     Further,   in Scanlon v. Tex. A & M Univ.,

343, F.3d 533, 536 (5th Cir. 2003), it is specified
that dismissal is appropriate if the court determines
beyond doubt that the plaintiff can prove no set of
facts to support a claim that would entitle him to
relief.     Also in the footnote reference is made to Mann

v. Adams Realty Co.      (the cite provided in footnote.).

                              9
In the court's consideration of the motion to dismiss

Conley v. Gibson,   355 U.S.    41, 45-46,   78 S. Ct. 99, 2

L. Ed. 2d 80 (1957) is cited which provides that a

motion under Rule 12(b)(6)      for failure to state a claim

is an appropriate method for raising a statute of
limitations defense,    it has long been the rule that a

complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.

    Appellant clearly established in his petition a
claim that his lots should be able to be used for

either residential or business.       Further, Appellant

believes there are sufficient facts provided in his
petition to support the claim.       A summary of some facts
and evidence is contained on page 6 of Second Amendment

to Petition   (CR 8).


    Reference Section III, pages 7, paragraph A.         As a

matter of law, the Defendant/Appellee must conclusively
prove a date of accrual as the date limitations begins
to run.   The elements required to establish a date of
accrual are included in discussion of ITEMS PRESENTED

in Appellant's Brief.     One of the elements to be proven
is the date when a person first had an opportunity to
file a petition.    The Appellant established as a fact

that he did not have possession of any document(s)         to
provide a basis or opportunity for filing a petition


                           10
until he first got possession of the letter signed by

Mr. Bepko (CR 7) which was within the period of

limitations.   The circumstances and time when Appellant

got possession of the letter is discussed at 2RR, page

27, line 24 to line 14, pg 28.     It is also discussed in

more specific detail in Appellant's Brief under ISSUE
PRESENTED #3, bottom of page 16 to middle of page 17.

The earliest date Appellant could have gotten

possession of the letter is January 25, 2012.
Reference Section III, pages 7-9, paragraph B.     The

Appellee states that the Appellant stated he did not
suffer a legal injury until he inquired (underline
added) about the use of his property for business

purposes.   This statement is inaccurate and nothing in
the record supports Appellee's statement.     As discussed
in the record and further included in discussion of

ISSUE PRESENTED #2 of Appellant's Brief, Appellant
contends the legal injury did not occur until Appellant
first requested the homeowner's association (Appellee)
to consider documents to support Appellant's request

(request submitted on November 13, 2014 (Tab 7 of
Appellant's Brief)   and the request was denied on
December 1, 2014 (CR 2) and/or when the Appellee
notified Appellant that after years of consideration
Appellee was going to file a dedicatory instrument

stating that all lots must be used strictly for
residential purposes (CR 8).     Appellant objected as
evidenced by the Appellant's Affidavit filed on January

                          11
  8, 2 015 (CR 12).     The matter of when legal injury

  occurred is    included in discussion of the ISSUES

  PRESENTED of Appellant's Brief.

      The Appellee refers often to the contract for deed

  but does not address the one recorded document which

  should be controlling - that being the Appellant's

  Warranty Deed.      Appellant believes the discussion
  regarding what the deed provides, or for that matter
  what can be proved was the developer intent, is a
  matter to be considered when the merits of the case can

  be heard and is not a pertinent matter when considering
  the issue of whether or not the Appellant filed his

  petition within the period of limitations.      Finally, at
  the top of page 9 Appellee states Appellant wants to
  disavow those portions of the Bepko letter that do not
  benefit him.     There is nothing in the record to support

  such assertion and there is nothing in the letter

  Appellant wishes to disavow.




5. Reference page 9, APPELLEE'S CONCLUSION.     The

  Appellee's overall conclusion is that there is no basis
  in law to declare that Appellant was entitled to use

  his property for business purposes - therefore the
  trial court did not commit an error.      This assertion

  does not address the issue upon which the appeal is

  requested -- specifically statute of limitations.
  Given an opportunity to have Appellant's petition

                              12
considered in a court,   a determination can then be made

regarding the authorized use of Appellant's property.




                          13
             APPELLANT'S   SUMMARY OF BRIEF OF APPELLEE


    The single issue that emerged from the hearings at the
trial court level was whether or not the

Defendant/Appellant filed his petition within or outside
the four year period of limitations.       It was on this issue
alone that the trial judge stated he decided as a matter of
law to grant Defendant/Appellee's motion to dismiss.        The
Appellant argues the Appellee did not conclusively prove
the date the period of limitation commenced and in
Appellant's Brief has provided ample evidence to support
Appellant's argument.       Appellant further argues that the
trial judge in considering the facts in the record
regarding the statute of limitations made an error in
concluding that the statute of limitations had run.

    Appellant has considered the Brief of Appellee and
finds nothing that convincingly refutes the content of
Appellant's Brief.     In fact, in the Appellee's overall
CONCLUSION, page 9, the Appellee chose to address the issue
of use of property rather than providing argument on the
issue of limitations.


    In summary, the Appellant stands by the arguments made
in Appellant's Brief and does not believe any information
provided in the Brief of Appellee diminishes those
arguments.     Further, Appellant firmly believes ample
evidence has been provided to satisfy the standard of




                                  14
review for reversible error stipulated in Rule 44 of the

Texas Rules of Appellant Procedures.




                             15
                           PRAYER



    Appellant respectfully requests the Court of Appeals

grant the prayers included in Appellant's Brief.




                           Respectfully submitted




                           ELWYN fe. SHUMWAY           V
                           Pro Se Litigant
                           8406     Zodiac
                           Universal City, TX 7814 8
                            (210)    860-6613 - cell
                           shumd@att.net




                             16
                 CERTIFICATE    OF   COMPLIANCE




    I certify the Appellant's Reply Brief does not exceed
the word count or page limit as set forth in the Texas

Rules of Appellant Procedure.




                                LWYN *D. SHUMWAY   /




                                17
                  CERTIFICATE OF    SERVICE




    I certify that the undersigned provided a true and
correct copy of this document to the Appellee by certified
mail on ^i^il^^J 4} flfl/jT.
                    -*




                           ELWYNA. SHUMWAY'




                               18
                                 OCHIIHtUMAIL
                                                                                          U.S. POSTAGE
                                                                                             PAID
                                                                                          UNIVERSAL CITY.TX
                                                                                             78148
  Mr. Dale Shumway                                                                        DEC 04,15
      8406 Zodiac Dr.                                                                       AMOUNT
UniversalCty, TX 78148-2611   7D15 IbbD DDDD 73L1 Efl3fl       UNITED STtTES
                                                               POSTAL SERVICE.
                                                                     1000
                                                                                             $1.64
                                                                                 78711    00101180-05
                                                                                           U.S. POSTAGE
                                                                                                PAID   ,_, _,
                                                                                           UNIVERSAL CITY.TX
                                                                                              78148
                                                                                           DEC 04,15
                                                                                              AMOUNT
                                                                                              $3.45
                                                                                  78711
                                                                                            00101180-05
                                   aiAST.M, T^xrx-S 707H-Z5"«r7
                                                           >
