                                                                                          ACCEPTED
                                                                                     13-14-00329-CV
                                                        FILED          THIRTEENTH COURT OF APPEALS
                                              IN THE 13TH COURT OF APPEALS   CORPUS CHRISTI, TEXAS
                                                      CORPUS CHRISTI             2/2/2015 2:02:08 PM
                                                                                   DORIAN RAMIREZ
                                                        2/2/2015                              CLERK

                          No. 13-14-00329-CVDORIAN E. RAMIREZ, CLERK
                                             BY   smata
                                  In the                 RECEIVED IN
                                                   13th COURT OF APPEALS
                            Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS
                   Thirteenth Supreme Judicial District
                                                    2/2/2015 2:02:08 PM
                             Edinburg, Texas         DORIAN E. RAMIREZ
                                                           Clerk


                      ALBERTO GARZA, ET AL,
                                                               APPELLANTS
                                  VS.

                       MELDEN & HUNT, INC.,
                                                                    APPELLEE

                      APPELLANTS’ REPLY TO
                        BRIEF OF APPELLEE


GARCIA & MARTINEZ, L.L.P.
Adrian R. Martinez
State Bar No. 13137600
Alberto T. Garcia III
State Bar No. 00787515
6900 N. 10th Street, Suite 2
McAllen, Texas 78504
Phone: (956) 627-0455
Fax: (956) 627-0487

ATTORNEYS FOR APPELLANTS
                         TABLE OF CONTENTS

Index of Authorities                         i

Argument                                     1

Prayer                                       5

Certificate of Service                       6




                                ii
                            INDEX OF AUTHORITIES

Cases                                                                    Page

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979)          3

Houston Endowment, Inc. v. Atlantic Richfield Co., 972 S.W.2d 156               1
     (Tex. App.—Houston [14th Dist.] 1998, no pet.)

Hudson v. Wakefield, 711 S.W.2d 628 (Tex. 1986)                            1, 2

M.D. Anderson Hosp. and Tumor Institute v. Willrich,                            3
     28 S.W.3d 22 (Tex. 2000)

Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004)             1

Shih v. Tamisiea, 306 S.W.3d 939 (Tex. App.—Dallas 2010, no pet.)               4




                                      iii
                                   ARGUMENT

Law of the Case Doctrine

      Appellee first argues that under the law of the case doctrine, this Court’s

prior decision in Melden & Hunt, Inc. v. Garza, 2013 WL 3517743 (Tex. App.—

Corpus Christi 2013, no pet.) (“Garza Appeal I”) conclusively establishes that the

limitations period for the Garza’s nuisance claim accrued before September 1,

2005. Therefore, Appellee claims, it did not have to prove the nature, duration,

severity, or frequency of the Garzas’ injury in order to prove whether the nuisance

was permanent or temporary.

      The law of the case doctrine does not apply here because it only applies to

questions of law and not to questions of fact. Hudson v. Wakefield, 711 S.W.2d

628, 630 (Tex. 1986). When a plaintiff knew or should have known of an injury in

order to determine the accrual date for limitations analysis, is a question of fact.

Houston Endowment, Inc. v. Atlantic Richfield Co., 972 S.W.2d 156, 160 (Tex.

App.—Houston [14th Dist.] 1998, no pet.). Also, the frequency, extent and duration

of the Garzas’ injury, and whether such injuries are reasonably certain to continue

in the future, are questions of fact. Schneider Nat’l Carriers, Inc. v. Bates, 147

S.W.3d 264, 281 (Tex. 2004). In Garza Appeal I this Court analyzed the facts

related to when the Garzas “knew or in the exercise of ordinary diligence should

have known of Melden & Hunt’s alleged negligence and the alleged injury
                                         1
resulting therefrom” in order to conclude that the negligence cause of action

accrued before September 1, 2005. Melden & Hunt, Inc., 2013 WL 3517743 *2.

Appellee wants this Court to take the same fact determinations it made (i.e. when

the Garzas knew or should have known…”) and apply those fact determinations in

this appeal. But, the law of the case doctrine does not apply to questions of fact.

      The law of the case doctrine also does not apply because in Garza Appeal I

the Court discussed the accrual date for the Garzas’ negligence claim, whereas this

appeal involves the accrual date for their nuisance claim. The Garzas did not

address this Court’s opinion in Garza Appeal I in the trial court or in their brief in

this appeal because Garza Appeal I did not involve, or even address, the accrual of

the Garza’s nuisance claim. The law of the case doctrine does not apply when the

issues or the facts presented in a later appeal are not substantially the same as those

addressed in a prior appeal. Hudson, 711 S.W.2d at 630. The facts necessary to

determine when a nuisance claim accrues are different than the facts necessary to

determine when a negligence claim accrues. To determine when a nuisance claim

accrues for limitations purposes, the factfinder determines facts relevant to the

frequency, extent, and duration of the injury to determine if the injury is permanent

or temporary. Those facts are not relevant to determining when a negligence claim

accrues and this Court in Garza Appeal I did not analyze, or even address, those


                                          2
types of facts. In fact, the opinion in Garza Appeal I does not even use the word

“nuisance” a single time.

      For these reasons, the law of the case doctrine is inapplicable here.

Waiver

      Appellee also argues that the Garzas waived their right to challenge the legal

sufficiency of its evidence establishing the accrual date of the Garzas’ nuisance

claim because the Garzas did not raise the same argument with the trial court.

Appellee is wrong. Longstanding Texas Supreme Court case law allows a

nonmovant to challenge the legal sufficiency of a movants’ grounds for summary

judgment on appeal, even if the same challenge was not made in the trial court.

      As the nonmovant, the Garzas had no burden to even respond to Appellee’s

summary judgment motion unless Appellee conclusively established its limitations

affirmative defense. M.D. Anderson Hosp. and Tumor Institute v. Willrich, 28

S.W.3d 22, 23 (Tex. 2000). Clearly, Appellee presented no evidence whatsoever to

the trial court regarding the extent, duration and frequency of the Garzas’ injury,

and therefore did not conclusively establish the limitations defense for nuisance.

Because summary judgments must stand on their own merits, the nonmovant need

not respond to the motion to contend on appeal that the movant’s summary

judgment proof is insufficient as a matter of law to support summary judgment. Id.

As the Texas Supreme Court stated in City of Houston v. Clear Creek Basin Auth.,
                                         3
589 S.W.2d 671, 678 (Tex. 1979) “[w]hile it would be prudent and helpful to the

trial court for the non-movant always to file an answer or response, the non-

movant needs no answer or response to contend on appeal that the grounds

expressly presented to the trial court by the movant’s motion are insufficient as a

matter of law to support summary judgment.” The statement in TRCP 166a(c) that

issues not presented to the trial court in a written motion, answer or response will

not be considered on appeal, does not prohibit the nonmovant from challenging the

legal sufficiency of the movant’s proof. “In other words, except to attack the legal

sufficiency of the movant’s grounds for summary judgment, the nonmovant must

expressly present to the trial court in a written answer or response to the motion

any reason for avoiding the movant’s entitlement to summary judgment.” Shih v.

Tamisiea, 306 S.W.3d 939, 944 (Tex. App.—Dallas 2010, no pet.).

      In this appeal, the Garzas challenge the legal sufficiency of Appellee’s proof

of the accrual date of the Garza’s nuisance claim. Appellee presented absolutely no

evidence to the trial court regarding the extent, duration, or frequency of the

Garzas’ injury so that the Court could determine whether it was permanent or

temporary. Without such evidence, the Court cannot determine whether the

Garzas’ cause of action accrued when the injury first occurred or was discovered

(permanent injury) or accrued with each injury (temporary nuisance). Thus,


                                         4
Appellee’s proof is legally insufficient to conclusively establish the accrual date of

the Garzas’ nuisance claim.

                                      PRAYER

      WHEREFORE,         PREMISES       CONSIDERED,         Appellants   respectfully

request that this Honorable Court of Appeals reverse the MSJ Order insofar as it

dismisses Appellants’ nuisance claim and their ability to recover exemplary

damages in connection with their nuisance claim.

                                       Respectfully submitted,

                                       GARCIA & MARTINEZ, L.L.P.
                                       6900 N. 10th Street, Suite 2
                                       McAllen, Texas 78504
                                       Phone: (956) 627-0455
                                       Fax: (956) 627-0487


                                         /s/ Albert Garcia
                                       ADRIAN R. MARTINEZ
                                       State Bar No. 13137600
                                       adrian@garmtzlaw.com
                                       ALBERTO T. GARCIA III
                                       State Bar No. 00787515
                                       albert@garmtzlaw.com

                                       ATTORNEYS FOR APPELLANTS




                                          5
                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing document was forwarded to the following on February 2, 2015.

Ms. Jacqueline M. Stroh
THE LAW OFFICE OF JACQUELINE M. STROH, P.C.
10101 Reunion Place, Suite 600
San Antonio, Texas 78216

Mr. Henry B. Gonzalez III
GONZALEZ, CHISCANO, ANGULO & KASSON, P.C.
613 N.W. Loop 410, Suite 800
San Antonio, Texas 78216

                                   /s/ Albert Garcia
                                  Alberto T. Garcia III




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