                                                                                                  ACCEPTED
                                                                                             13-14-00166-CV
                                                                               THIRTEENTH COURT OF APPEALS
        FILED                                                                        CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                             1/8/2015 2:41:33 PM
        CORPUS CHRISTI                                                                     DORIAN RAMIREZ
                                                                                                      CLERK
          1/8/15
DORIAN E. RAMIREZ, CLERK
BY DTello                               CASE NO. 13-14-00166-CV
                                                                   RECEIVED IN
                                                             13th COURT OF APPEALS
                                  IN THE COURT OF APPEALS FOR THE
                                                          CORPUS  CHRISTI/EDINBURG, TEXAS
                               THIRTEENTH JUDICIAL DISTRICT OF1/8/2015
                                                                TEXAS  2:41:33 PM
                                                               DORIAN E. RAMIREZ
                                                                      Clerk
                                       JOSE MARCOS MONTALVO,
                                             APPELLANT


                                                    vs.



                                             ADOLFO VELA,
                                               APPELLEE


                                  SUPPLEMENTAL BRIEF OF APPELLEE

                                          HAROLD K. TUMMEL
                                               SBN 20286675
                                         LYDIA CASSO TUMMEL
                                               SBN 00791830
                                             Tummel & Casso
                                          4430 South McColl Road
                                           Edinburg, Texas 78539
                                          Tel. No.: (956) 664-2222
                                          Fax No.: (956) 664-0522

                                      ATTORNEYS FOR APPELLEE


                                     ORAL ARGUMENT REQUESTED




                                                Page 1 of 12
                IDENTITIES OF PARTIES AND COUNSEL

      IDENTITIES OF PARTIES                IDENTITIES OF COUNSEL
 Jose Marcos Montalvo,              Ms. Fela Olivarez*,**
 Plaintiff, Appellant               tbolivarez@sbcglobal.net
                                    216 E. Expressway 83 #L-M
                                    Pharr, Texas 78577
                                    Tel. No.: (956) 702-2226
                                    Fax No.: (956) 702-2229

                                    Marcel C. Notzon, III**
                                    mcn@notzonlawfirm.com
                                    The Notzon Law Firm
                                    415 Shiloh Drive, Ste. B
                                    Laredo, Texas 78045
                                    Tel. No.: (956) 717-1961 (press 22)
                                    Fax No.: (956) 717-2789
Adolfo Vela,                        Harold K. Tummel *, **
Defendant, Appellee                 hkt@bizrgv .rr .com
                                    Lydia Casso Tummel**
                                    lct@bizrgy.rr.com
                                    Tummel & Casso
                                    4430 South McColl Road
                                    Edinburg, Texas 78539
                                    Tel. No.: (956) 664-2222
                                    Fax No.: (956) 664-0522


* Trial counsel
** Appellate counsel




                              Page 2of12
                     TABLE OF CONTENTS

DESCRIPTION                               PAGES



IDENTITIES OF PARTIES AND COUNSEL                 2

TABLE OF CONTENTS                                 3

INDEX OF AUTHORITIES                              4
ARGUMENT                                      6-11

PRAYER                                         11

TRAP 9.4(i)(3) CERTIFICATE                     12

CERTIFICATE OF SERVICE                         12




                             Page 3of12
                                        INDEX OF AUTHORITIES

                     CASES                                                                              PAGES

Arredondo v. Rodriguez, ........................................................................................... 10
198 SW3d 236 (Tex. App. - San Antonio 2006, no pet.)

Chapa v. Wirth, ..........................................................................................................6
343 SW2d 936 (Tex. App. -Eastland 1961, no writ)

City ofHouston v. Clear CreekBasinAuthority, ........................................................ 9
589 SW2d 671 (Tex. 1979)

Hexter v. Pratt, .......................................................................................................... 7
10 SW2d 692 (Tex. Comm'n App. 1928,judgment adopted)

K&S Interests, Inc. v. Texas American Bank /Dallas, ................................................6
749 SW2d 887 (Tex. App. -Dallas 1988, writ denied)( op. on reh'g)

Mooney v. Harlin, ..................................................................................................... 7
622 SW2d 83 (Tex. 1981)
"Moore" Burger, Inc. v. Philips Petroleum Co., ........................................................ 9
492 SW2d 934 (Tex. 1972)
Nguyen v. Allstate Insurance Company, ................................................................... 10
404 SW3d 770 (Tex. App. - Dallas 2013, no writ)

Pentikis v. Texas Electric Service Company, ............................................................ 6
470 SW2d 387 (Tex. App. -Fort Worth 1971, writ refd n.r.e.)
Pons art v. Citicorp Vendor Finance, Inc., ................................................................. 6
89 SW3d 285 (Tex. App. - Texarkana 2002, no pet.)
Republic Nat'/ Leasing Corp. v. Schindler, .............................................................. 9
717 SW2d 606 (Tex. 1986)
Smith v. Brown & Root, lnc., ...................................................................................... 6
430 SW2d 549 (Tex. App. - Houston 1968, no writ)
University State Bank v. Gifford-Hill Concrete Corp., ............................................. 7
431SW2d561 (Tex. App.-Ft. Worth 1968, writ refd n.r.e.)


                                                      Page 4of12
Walker v. Harris, ....................................................................................................... 9
924 SW2d 375 (Tex. 1996)




                                                     Page 5of12
                                    ARGUMENT

                              Appellant's Introduction

       In his brief at page vii, Appellant refers to his bill of review ''under cause

number C-095-09-E," while his bill of review was docketed and adjudicated as Case

No. C-2559-12-E ("this Case").

                        Appellant's Statement Of The Case

       In his brief at page viii, Appellant argues that he settled the claim by Appellee

made a subject of Case No. C-095-09-E ("the Original Case"). Appellee objects to

such argument as outside the record.

       In his brief at page viii, Appellant argues that he was not aware of the

judgment rendered against him in the Original Case until a levy was made upon his

real property. Appellant's undisputed timely appearance in the Original Case gives

rise to an irrebuttable presumption, however, that Appellant had contemporaneous

knowledge of the facts disclosed by the trial court's file in the Original Case. Smith

v. Brown & Root, Inc., 430 SW2d 549 (Tex. App. - Houston 1968, no writ); Chapa

v. Wirth, 343 SW2d 936 (Tex. App. - Eastland 1961, no writ); Ponsart v. Citicorp

Vendor Finance, Inc., 89 SW3d 285 (Tex. App. - Texarkana 2002, no pet.); K&S

Interests, Inc. v. Texas American Bank/Dallas,     ~49   SW2d 887(Tex. App. - Dallas

1988, writ denied)(op. on reh'g); Pentikis v. Texas Electric Service Company, 470


                                      Page 6of12
SW2d 387(Tex. App. - Fort Worth 1971, writ ref d n.r.e.); Mooney v. Harlin, 622

SW2d 83(Tex. 1981); Hexter v. Pratt, 10 SW2d 692 (Tex. Comm'n App. 1928,

judgment adopted); University State Bankv. Gifford-Hill Concrete Corp., 431 SW2d

561(Tex. App.-Ft. Worth 1968, writ refd n.r.e.).

       In his brief at page viii, Appellant argues that judgment was rendered against

him in the Original Case even though Appellee's claim had been settled. Appellee

objects to such argument as outside the record.

       In his brief at page viii, Appellant states that Judge Chiuminatto was the trial

judge. Judge Partida was the trial judge in the Original Case. Judge Chiuminatto was

appointed to preside in this Case when Judge Partida recused himself because

counsel for Appellant argued that misconduct on the part of Judge Partida's staff

caused the rendition of the judgment against Appellant in the Original Case.

                           Appellant's Statement Of Facts

       Appellee objects to all of the first paragraph of Appellant's statement of facts,

as outside the record.

       Appellee objects to all of the second paragraph of Appellant's statement of

facts, as outside the record.

       Appellee objects to all of the third paragraph of Appellant's statement of facts,

as outside the record.


                                      Page 7of12
       Appellee objects to all of the fourth paragraph of Appellant's statement of

facts, as outside the record.

       Appellee objects to footnote one to the fifth paragraph ofAppellant's statement

of facts, as outside the record.

       Appellee objects to the seventh paragraph of Appellant's statement of facts,

on the ground that the statements therein are not supported by Appellant's record

references.

       Appellee objects to the eighth paragraph of Appellant's statement of facts, on

the ground that the statements therein are not supported by Appellant's record

references.

       Appellee objects to the eleventh paragraph of Appellant's statement of facts,

on the ground that the statements therein are not supported by Appellant's record

references.

       Appellee objects to the fourteenth paragraph of Appellant's statement of facts,

on the ground that the statements therein are not supported by Appellant's record

references.

                      Appellant's Summary Of The Argument

       Appellant argues (Appellant's Brief, p. 6) that the summary judgment in the

Original Case was improper, because Appellant's original answer contained a general


                                     Page 8of12
denial. It is well established, however, that in responding to a motion for summary

judgment, a party does not create a fact issue by referencing the responding party's

pleadings. Rather, the responding party must present competent summary judgment

evidence to raise a fact issue. "To obtain a summary judgment, a defendant must

either negate at least one element of the plaintiffs theory of recovery, 'Moore'

Burger, Inc. v. Philips Petroleum Co., 492 SW2d 934, 936 (Tex. 1972), or plead and

conclusively prove each element of an affirmative defense. City ofHouston v. Clear

Creek Basin Authority, 589 SW2d 671, 678 (Tex. 1979). After the defendant

produces evidence entitling it to summary judgment, the burden shifts to the plaintiff

to present evidence creating a fact issue. 'Moore' Burger, 492 SW2d at 936-937."

Walker v. Harris, 924 SW2d 375, 377 (Tex. 1996).

       Appellant argues (Appellant's Brief, p. 6) that the summary judgment in the

Original Case was improper, because Appellant filed a letter with the trial court in the

Original Case, which was written by Appellant, and which references there being a

settlement agreement between Appellant and Appellee.             Such letter was not

authenticated and therefore did not constitute competent summary judgment evidence.

Republic Nat'/ Leasing Corp. v. Schindler, 717 SW2d 606, 607 (Tex. 1986). Such

letter contained no evidence that Appellee was a party to such "settlement

agreement." Moreover, Appellant did not file a response to the motion for summary


                                      Page 9of12
judgment calling upon the trial court to consider such letter, in any event.

Correspondingly, the court did not err in granting the summary judgment,

notwithstanding Appellant's filing of said letter with the trial court. "A party

submitting summary judgment evidence must specifically identify the supporting

proof on file that it seeks to have considered by the trial court." Nguyen v. Allstate

Insurance Company, 404 SW3d 770, 776 (Tex. App. - Dallas 2013, pet. denied),

quoting from Arredondo v. Rodriguez, 198 SW3d 236, 238 (Tex. App. - San Antonio

2006, no pet.).

       Appellant argues (Appellant's Brief, p. 6) that the trial court erred in this Case

in granting Appellee's motion for summary judgment, because Appellant "alleged"

each element of a bill-of-review claim. Such allegations do not amount to competent

summary judgment evidence, and therefore did not render the summary judgment at

issue improper. Moreover, Appellant failed to file a response to Appellee's summary

judgment motion, and thereby failed to direct the trial court's attention to such

pleadings, in any event.

                                Appellant's Argument

       Appellant argues, at page 13 of Appellant's brief, "The trial court should have

granted Montalvo's bill of review because he satisfies [sic] the burden to allege and

prove the required elements set out in Barnes, 975 SW2d at 537." The record does


                                     Page 10of12
not support Appellant's argument. In particular, the record does not support a finding

that Appellant's failure to present a defense in the Original Case was not caused, even

in part, by any fault or negligence of Appellant. To the contrary, the summary

judgment record before the trial court and applicable law make overwhelmingly clear

that Appellant was negligent in failing to present a defense in the Original Case, and

in failing to seek a new trial after judgment was rendered in the Original Case, and in

failing to appeal after judgment was rendered in the Original Case. See Brief of

Appellee, at pages 8-10, 15-19.

       Therefore, the judgment of the trial court in this Case should be affirmed.

                                      PRAYER

       Wherefore, premises considered, Vela prays that the Court affirm the judgment

of the trial court.




                                     Page 11of12
                                          Respectfully submitted,

                                          Isl Harold K. Tummel
                                          SBN 20286675
                                          S.D. Tex. No. 11901
                                          hkt@bizrgy.rr.com
                                          Lydia C. Tummel
                                          State Bar No. 00791830
                                          S.D. Tex. No. 18782
                                          lct@bizrgv .rr .com
                                          Tummel & Casso
                                          McColl At Trenton
                                          4430 South McColl Road
                                          Edinburg, Texas 78539
                                          Tel. No.: (956) 664-2222
                                          Fax No.: (956) 664-0522

                                          ATTORNEYS FOR ADOLFO VELA

                           TRAP 9.4(i)(3) CERTIFICATE

      According to the software program used to make this brief, this brief contains
1690 words.

                                                        Isl Harold K. Tummel
                           CERTIFICATE OF SERVICE
      A true copy of this instrument was served by first class mail, postage prepaid,
on January 8, 2015, upon the following persons:

Ms. Fela Olivarez
216 E. Expressway 83 #L-M
Pharr, Texas 78577

Marcel C. Notzon, III
The Notzon Law Firm
415 Shiloh Drive, Ste. B
Laredo, Texas 78045
                                                        Isl Harold K. Tummel

                                    Page 12of12
