                                                                                                     ACCEPTED
        FILED                                                                                   13-13-00717-CV
                                                                                  THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                            CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI                                                                     2/9/2015 10:33:31 PM
                                                                                               DORIAN RAMIREZ
          2/9/15                                                                                         CLERK

DORIAN E. RAMIREZ, CLERK
                                       CASE NO. 13-13-00717-CV
BY dtello

                                 IN THE COURT OF APPEALS FOR THE  RECEIVED IN
                                                            13th COURT OF APPEALS
                               THIRTEENTH JUDICIAL DISTRICT OF TEXAS
                                                         CORPUS  CHRISTI/EDINBURG, TEXAS
                                AT CORPUS CHRISTI–EDINBURG,2/9/2015
                                                              TEXAS  10:33:31 PM
                                                                    DORIAN E. RAMIREZ
                                                                         Clerk
                                     DOUGLAS MICHAEL BULTHUIS,
                                                                         Appellant

                                                   vs.

                                         JOSE JUAN (J.J.) AVILA,
                                                                         Appellee


                       APPEAL FROM CAUSE NUMBER C-620-07-G
                      th
                 370 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS
                           JUDGE NOE GONZALEZ, PRESIDING


                                      APPELLANT’S REPLY BRIEF




                                                         Ronald G. Hole
                                                         State Bar No. 09834200

                                                         HOLE & ALVAREZ, L.L.P.
                                                         612 W. Nolana Loop, Ste 370
                                                         P.O. Box 720547
                                                         McAllen, Texas 78504
                                                         Telephone:      (956) 631-2891
                                                         Telecopier:     (956) 631-2415
                                                         E-Mail: Mail@HoleAlvarez.com

           ORAL ARGUMENT REQUESTED                                       February 9, 2015
              CASE NO. 13-13-00717-CV

         IN THE COURT OF APPEALS FOR THE
       THIRTEENTH JUDICIAL DISTRICT OF TEXAS
        AT CORPUS CHRISTI–EDINBURG, TEXAS

            DOUGLAS MICHAEL BULTHUIS,
                                               Appellant

                         vs.

               JOSE JUAN (J.J.) AVILA,
                                               Appellee


      APPEAL FROM CAUSE NUMBER C-620-07-G
  th
370 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS
          JUDGE NOE GONZALEZ, PRESIDING


             APPELLANT’S REPLY BRIEF




                               Ronald G. Hole
                               State Bar No. 09834200

                               HOLE & ALVAREZ, L.L.P.
                               612 W. Nolana Loop, Ste 370
                               P.O. Box 720547
                               McAllen, Texas 78504
                               Telephone:       (956) 631-2891
                               Telecopier:      (956) 631-2415
                               E-Mail:     Mail@HoleAlvarez.com
                                      TABLE OF CONTENTS
                                                                                                         Page

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Summary of Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reply.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        A.       Appellant Did Not Bring Forth a Partial Record.. . . . . . . . . . . . 2

        B.       Appellee Apparently Concedes That it was Improper for
                 Trial Court to Consider Only a Partial Record.. . . . . . . . . . . . . 3

        C.       Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Compliance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                      -ii-
                               INDEX OF AUTHORITIES

Cases:                                                                                    Page

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . . 4

Tanner v. Nationwide Mut. Fire Ins. Co.,
289 S.W.3d 828 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5

Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . 4

Rules & Statutes

Rule 38.3 of the Texas Rules of Appellate Procedure.. . . . . . . . . . . . . . . . 1




                                              -iii-
                                       CASE NO. 13-13-00717-CV

                                 IN THE COURT OF APPEALS FOR THE
                               THIRTEENTH JUDICIAL DISTRICT OF TEXAS
                                AT CORPUS CHRISTI–EDINBURG, TEXAS

                                     DOUGLAS MICHAEL BULTHUIS,
                                                                  Appellant

                                                  vs.

                                        JOSE JUAN (J.J.) AVILA,
                                                                  Appellee


                 APPEAL FROM CAUSE NUMBER C-620-07-G
                   th
           370 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS
                     JUDGE NOE GONZALEZ, PRESIDING


                                      APPELLANT’S REPLY BRIEF


TO THE HONORABLE JUSTICES OF SAID COURT:

             COMES NOW DOUGLAS MICHAEL BULTHUIS, Appellant in the

above-entitled and numbered cause, and pursuant to Rule 38.3 of the Texas

Rules of Appellate Procedure, files this his Reply Brief, and for such brief

would respectfully show unto this Honorable Court as follows:




A P P E LLAN T ’S R E P LY BR IE F                                            PAGE 1 OF 7
                                              I.

                                     SUMMARY OF REPLY

             The issue before this Court is simple. Can a trial court set aside a jury’s

verdict, and render a judgment notwithstanding the verdict, based upon “a tiny

fraction of the record” or “a mere fraction of the testimony from this multi-day

trial?” The short answer is: no.

                                              II.

                                           REPLY

A.           Appellant Did Not Bring Forth a Partial Record

             Although Appellee asserts that Appellant brought forth a partial

reporter’s record, such is not the case. This is not an appeal of a final

judgment that incorporates the findings of the jury in its verdict. This is an

appeal of a trial judge, based upon a very limited amount of trial testimony,

rendering a judgment that Appellant only recover $10.00. This case is more

akin to a summary judgment, where an appeal is based upon the summary

judgment evidence, and the arguments of counsel are irrelevant to whether

the trial court was correct in its ruling, based upon the summary judgment

evidence.




A P P E LLAN T ’S R E P LY BR IE F                                              PAGE 2 OF 7
             In the instant case, as noted in Appellant’s Brief, the trial court’s ruling

was not based upon the entire record, instead it was

             [b]ased upon the Court’s consideration of the verdict and the
             post-verdict briefing, exhibits, and arguments submitted by
             the parties . . . .

(Emphasis added) C.R. p. 54. As such, the only relevant record to bring forth

would be the verdict and the record that was reviewed by the trial court in

making its determination that Appellant only recover $10.00. This Appellant

did. Any additional materials would not be relevant to the appeal.

B.           Appellee Apparently Concedes That it was Improper for Trial Court
             to Consider Only a Partial Record

             Appellee admits that “a mere 20 pages of hundreds of pages of

[Bulthuis’] testimony recorded at trial . . .” were presented to the trial court by

Appellee as exhibits to post-judgment motions and briefing. Appellee’s Brief,

p. 2. These are the same exhibits and briefing that the trial court relied upon,

when it set aside the jury’s verdict.1 Appellee also notes, in numerous places

in his brief, that “a mere fraction of the testimony from this multi-day trial . . .

” (Appellee’s Brief, p. 2); “a tiny fraction of the record – a mere 20 or so pages

       . The trial court’s order indicates that, other than exhibits and briefing,
             1


the only other influence on the trial judge in making his decision, was
“arguments” of counsel. C.R. p. 54. Obviously, a motion for judgment
notwithstanding the verdict should be based upon the record of the evidence,
not arguments of counsel.
A P P E LLAN T ’S R E P LY BR IE F                                               PAGE 3 OF 7
of Bulthuis’s hundreds of pages of testimony” (Appellee’s Brief, p. 7); a small

part of the evidence presented at trial (Id.); not having “the benefit of a

complete record of the trial testimony and evidence in this matter”

(Appellee’s Brief, p. 12); and “exhibits attached to Avilia’s JNOV motion

[consisting] simply of excerpts of trial testimony offered to highlight arguments

in the motion” (Appellee’s Brief, p. 16); would not be sufficient for this Court

(or even the trial court) to review in order to determine if there was legally

sufficient evidence to support the jury’s verdict. Appellee’s Brief, pp. 2, 7, 12

and 16.

             Appellee correctly sets out the requirement for a judgment

notwithstanding the verdict. In reviewing a JNOV, a trial court should conduct

a legal sufficiency analysis of the evidence—the same test a court would

apply to a no-evidence challenge. See Tanner v. Nationwide Mut. Fire Ins.

Co., 289 S.W.3d 828, 830 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d

802, 823 (Tex. 2005). In applying the no-evidence standard, courts consider

the evidence in the light most favorable to the jury’s verdict and indulge every

reasonable inference that would support it. City of Keller, 168 S.W.3d at 822;

Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). Courts will credit favorable

evidence only if a reasonable juror could, and will disregard contrary evidence


A P P E LLAN T ’S R E P LY BR IE F                                       PAGE 4 OF 7
unless a reasonable juror could not. Tanner, 289 S.W.3d at 830. Appellee’s

Brief, p. 13.

             Accordingly, Appellant and Appellee agree that neither the trial court nor

an appellate court should review only a small portion of the record in

connection with a JNOV. However, that is exactly what the trial court did, as

can be seen from the final judgment that the trial court (or Appellee’s counsel)

drafted and ultimately signed. The appellate record, on the other hand, brings

forth everything to this Court that the trial court reviewed in making its

decision to grant a JNOV. That is all that is necessary, and appropriate, as

matters not considered by the trial court would be irrelevant to the propriety

of granting the judgment notwithstanding the verdict.

C.           Conclusions

             A complete appellate record, for the alleged errors of the trial court, was

brought forward. The trial court failed to consider the entire record of the case

(which was heard some 16 months earlier), and erroneously based its JNOV

decision on a very limited, tiny fraction, of the record. This was error.




A P P E LLAN T ’S R E P LY BR IE F                                              PAGE 5 OF 7
                                                III.

                                              PRAYER

             WHEREFORE, PREMISES CONSIDERED, Appellant DOUGLAS

MICHAEL BULTHUIS prays that this Court remand this case to the trial court

with instructions that Appellant recover of and from Appellee Jose Juan (J.J.)

Avila the amount awarded in the jury’s verdict, together with prejudgement

interest, costs of Court and that this Court grant Appellant such other and

further relief to which he may be justly entitled.

                                               Respectfully submitted,

                                               HOLE & ALVAREZ, L.L.P.
                                               P. O. Box 720547
                                               McAllen, Texas 78504
                                               Telephone No.: (956) 631-2891
                                               Telecopier No.: (956) 631-2415
                                               E-Mail: Mail@HoleAlvarez.com

                                               By:     /s/ Ronald G. Hole
                                                       Ronald G. Hole
                                                       State Bar No. 09834200
                                                       ATTORNEYS FOR APPELLANT

                                     CERTIFICATE OF COMPLIANCE

       In compliance with Tex.R.App.P. 9.4(i)(3), I, Ronald G. Hole, hereby
certify that this Appellant’s Reply Brief, excluding the sections to be excluded,
contains 936 words. I have relied on the word count of the computer program
used to prepare this document, WordPerfect X3®

                                                       /s/ Ronald G. Hole
                                                       Ronald G. Hole
A P P E LLAN T ’S R E P LY BR IE F                                              PAGE 6 OF 7
                                     CERTIFICATE OF SERVICE

      I, Ronald G. Hole, hereby certify that a true and correct copy of the
above Appellant’s Reply Brief has, on this the 9th day of February 2015,
been served via electronic transfer through an online filing service, to the
following counsel of record:

Attorneys for Appellee Juan Jose (J.J.) Avila
Mr. R. Russell Hollenbeck
Mr. Andrew C. Nelson
Wright & Close, LLP
One Riverway, Suite 2200
Houston, Texas 77056
E-Mail: hollenbeck@wrightclose.com
E-Mail: nelson@wrigthclose.com

Mr. Francisco Rene Villarreal
Garcia & Villarreal, L.L.P.
4311 North McColl Road
McAllen, Texas 78502
E-Mail: panchov@gvlaw.net

Mr. Juan “Sonny” Palacios
Palacios & Love
2720 West Canton, Suite B
Edinburg, Texas 78539
E-Mail: palacioslove@sbcglobal.net
                                                      /s/ Ronald G. Hole
BCC:Avi-BUL\APP                                       Ronald G. Hole




A P P E LLAN T ’S R E P LY BR IE F                                         PAGE 7 OF 7
