                                                                                        ACCEPTED
                                                                                    04-14-00354-CV
                                                                        FOURTH COURT OF APPEALS
                                                                             SAN ANTONIO, TEXAS
                                                                               8/3/2015 12:00:00 AM
                                                                                     KEITH HOTTLE
                                                                                             CLERK

                      NO. 04-14-00354-CV
                  THE COURT OF APPEALS
                                                                    FILED IN
            FOR THE FOURTH DISTRICT OF TEXAS                 4th COURT OF APPEALS
                     AT SAN ANTONIO                           SAN ANTONIO, TEXAS
                                                             08/03/15 12:06:42 AM
                                                                KEITH E. HOTTLE
  Luz Chavez, Individually, and as Representative of the  Estates of Clerk
Rudolph Chavez, Sr. (Deceased) and Rudolph Chavez, Jr. (Deceased),
   And, as Next Friend of Joel Chavez, a Minor; Darlene Chavez;
        Allen Chavez; Francisco Chavez and Celia Chavez,

                         APPELLANTS,

                                 v.

       Kansas City Southern Railway Company and Jose Juarez,

                           APPELLEES.



Appeal from the 406th Judicial District Court, Webb County, Texas

          Honorable Oscar J. Hale, Jr., Judge Presiding



     APPELLANTS’ MOTION FOR REHEARING
    OF THE COURT’S JUNE 17, 2015 JUDGMENT



                                      Mark Alvarado
                                      State Bar No. 01126520
                                      Law Office of Mark Alvarado
                                      9600 Escarpment Blvd., Suite 745
                                      Austin, Texas 78749
                                      Telephone: (512) 287-9469
                                      Facsimile: 512-582-8651
                                      ATTORNEY FOR APPELLANTS
                               TABLE OF CONTENTS

TABLE OF CONTENTS ..………………………………………………....................................................i
INDEX OF AUTHORITIES ..……………………………………………….............................................ii

I.   INTRODUCTION……….…………………………………………………………….1
II. ISSUES PRESENTED FOR REVIEW……………………………………………………………………1
III. ARGUMENT……………………………………………………..................................2

     ISSUE 1: The Court Findings and the Law of Inferences & Presumptions &
              The Law of Agency………………………………………………...…................................1

     ISSUE 2: Record Evidence Rebuts Presumption of Representation &
              Authority to Bind…………………………………………………………………………………5
     ISSUE 3: Record Establishes Non-Compliance With Established Law…………………….11
     ISSUE 4: Minor’s Settlement………………………………………………………………………………13

IV. CONCLUSION……………………………………………………………………….13

V.   PRAYER………………………………………………………………………….......14




                                             ii
                                                        Index of Authorities

Texas Courts of Appeals
Anderson v. Oldham, 82 Tex. 228, 18 S.W.557 (1891) ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Argyle Independent School Dist. Ex rel. Bd. Of Trustrees v. Wolf, 234 S.W.3d 229, (Tex. Civ.
App.—Ft. Worth 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bourland v. Huffhines, Tex.Civ.App. 269 S.W. 184, affirmed . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Bryan v. Watamull, 230 S.W.3d 503 (Tex. App. Dallas 2007), rev. denied . . . . . . . . . . . . . . . . 3
Combined Am. Ins. Co. v. Blanton, 163 Tex. 353 S.W. 2nd 847 (1962) . . . . . . . . . . . . . . . . . . . 3
Commercial Credit Co. v. Crone, 270 S.W. 209 (Tex. Civ. App. Amarillo 1925) . . . . 5, 6, 15, 16
Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 300 (Tex. App.-Austin 2000, pet. denied) .
........................................................................... 4
F.M. Stigler, Inc. v. H.N.C. Realty Co., 595 S.W.2d 158, 163 (Tex.Civ.App.— Dallas 1980, writ
filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Green v. Midland Mortgage Company, 342, S.W3d 686, 690 (Tex. App. Houston [14th Dist.]
2011, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …..5
Hotel Longview v. Pittman, 276 S.W.2d 915, 919 (Tex.Civ.App.—Texarkana 1955, writ ref’d
n.r.e.) ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Johnson v. Back,378 S.W.2d 723 (Tex.Civ.App.—Amarillo 1964, no writ) . . . . . . . . . . . . . . . 6
Lifshutz v. Lifshutz, 199 S.W. 3d 9, 23 ((Tex. App. – San Antonio 2006, pets denied) . . . . . . . . 11
Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 546
(Tex.App.—Austin 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Magill v. Rugeley, 171 S.w. 2d 528 (Tex. Civ, App.—Galveston 1914, err. Ref’d) . . . . . . . . 6, 15
Pagel v. Pumphrey, Tex.Civ.App., 204 S.W.2d 58, w/r, n. r. e. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Southwestern Bell Tel. Co. v. Vidrine, 610 S.W.2d 803, 805 (Tex.Civ.App.—Houston {1st. Dist.]
1980m writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Swilley v. Hughes, 488 S.W.2d 64 68 (Tex. 2002) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 10, 16
Texas A & M Univ. v. Chambers, 31 S.W.3d 780, 784-85 (Tex.App.-Austin 2000,
 pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………………………………..4
Tex. City Clearview Care Ctr. v. Fryer, 227 S.W.3d 345, 352-53 (Tex. Civ. App.—Ft. Worth 2007) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14
Texas Water Rights Comm’n v. Wright, 464 S.W.2d 642, 646 (Tex.1971) . . . . . . . . . . . . . . . . . 3
Tomhave v. Oaks Psychiatric Hosp., 82 S.W. 3d 381 (Tex. App. Austin, 2002) . . . . . . . . . . . . . 4
WalMart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002) . . . . . . . . . . . . . . . . . . . . . 17
Whitmire v. Nat’l Cutting Horse Assoc., No. 02-11-00170-CV, 2012 WL 4815413, at *5 (Tex.
App. – Ft. Worth Oct. 11, 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Texas Statutes & Rules
Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). . 10
2 Tex.Jur. 406, 407 and 408, secs. 22, 23 and 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

                                                                          iii
2 Tex.Jur. 423 and 424, sec. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 Tex.Jur. 444, sec. 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7 C.J.S., Attorney and Client, § 76, on p. 888 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Rule 11 of the Texas Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rule 11 Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Treatises
Comment Note, 5 A.L.R.3d 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5




                                                                     iv
                            I.     INTRODUCTION

      By this Motion for Rehearing, Appellants respectfully ask this Court to

revisit its decision to affirm the Trial Court’s granting Appellees’ motion for

summary judgment and affirming the judgment as to the minor’s settlement in the

instant action. Rehearing is appropriate in this matter because the Court’s ruling

misapplies well-established principles of agency law, and law of evidence relating

to legal presumptions; and, apparently disregards critical evidence— including

evidence apparent from the Trial Court’s Docket Sheet, rebutting Christopher

Dean’s authority to settle Appellants’ claims. The Court’s ruling has potentially

dispositive effect here. For that reason, Appellants urge the panel to consider the

following arguments.

                 II.    ISSUES PRESENTED FOR REVIEW

A.    Whether the facts noted in the Court’s Opinion give rise to a finding

      Christopher Dean had authority to represent Appellants, at the time he sent a

      settlement letter; and, whether the facts give rise to a finding Christopher

      Dean had authority to settle their claims against Appellees.

B.    Whether record evidence rebuts a presumption of representation & of

      authority to settle Appellants’ Claims.

C.    No Evidence In Record of Appellees Upholding Duty to Ascertain Scope of

      Christopher Dean’s Authority to Settle.

                                         1
D.    Minor’s Settlement.

                                 III.   ARGUMENT

A.    The Court’s Finding Christopher Dean Represented Appellants &

Finding He Had Actual Authority to Bind Appellants. The Court’s Findings

that Appellees proved “as a matter of law,” that Christopher Dean had actual

authority to bind Chavez to the settlement agreement,” rests on evidence presented

by KCSR (Letter dated October 5, 2011), and on facts found in the Court’s Docket

Sheet. (Opinion, P. 11). In reaching this finding, the Court necessarily found that

certain facts establish findings which give rise to the presumption that Christopher

Dean was “duly employed” by Appellants. And, therefore, that he had the actual

authority to settle their lawsuit. (Opinion at 10).   Appellants   will   respectfully

point to other facts in the record that lead to the presumption that he was not duly

employed on October 5, 2011. Therefore, any presumption of authority to settle,

or presumption of the enforceability of the letter settlement document is rebutted,

and all of the cases cited by Appellees upon which the Opinion rests are

inapplicable because they involve cases where a party consented, and then

withdrew their consent. And, summary judgment was not proper as Appellees,

thereby, failed to establish proof that an enforceable contract was formed, and that

such contract complied with Rule 11 of the Texas Rules of Civil Procedure. If the

settlement meets the requirements of Rule 11 and is an enforceable contract, it can

                                           2
be enforced by summary judgment. In re Omni, 60 F.3d 230, 232 (5th Cir. 1995).

      In essence Appellants contend that the facts and the presumptions which

sustain the Judgment of the Trial Court are merely a series of stacked inferences

which do not give rise to a presumption of agency authority, and the Court’s

reasoning contradicts established Texas precedent relating the law of agency.

1.    Stacking Inferences and Presumptions

      A presumption is a logical conclusion that will flow from certain basic facts;

an inference is a logical conclusion that may flow from certain basic facts.

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—

Houston [1st Dist.]1993, writ dism’d). Inference stacking or “basing an inference

upon an inference” occurs when a fact-finder draws an inference from

circumstantial evidence and then, solely from that initial inference, draws another

inference. An inference can be drawn only from some piece of direct evidence, not

from facts established by another inference (i.e. an inference based on an

inference). Ice Bros, v. Bannowsky, 840S.W.2d 57, 61 (Tex. App.—El Paso 1992,

no writ).

2. The Law Regarding Agency Authority. Before the Court could reach the

decision that the record gives rise to the presumption that Christopher Dean had the

authority to settle Appellants lawsuit, it considered whether he was “duly

employed” by Appellants. See Ebner v. First State Bank of Smithville, 27 S.W.3d

                                         3
287, 300 (Tex. App.-Austin 2000, pet. denied). The Opinion, on pages 9-11

reviews the evidence that establishes this fact, including a notice of appearance,

docket sheet entries, and representations by Appellees’ attorney. The Opinion cites

to Whitmire v. Nat’l Cutting Horse Assoc., and Green v. Midland Mortgage

Company, for the proposition that the attorney-client relationship is an agency

relationship, and that the attorney’s acts are regarded as the client’s acts.

      Appellants would point out that in a suit to enforce an agreement purporting

to have been made by an attorney for a client, it is necessary to allege and prove

the attorney’s authority to bind the client by the agreement. Anderson v. Oldham,

82 Tex. 228, 18 S.W.557 (1891); Commercial Credit Co. v. Crone, 270 S.W. 209

(Tex. Civ. App.-- Amarillo 1925). “Mere employment of counsel does not clothe

the counsel with authority to settle the cause without specific consent of the

client.” Southwestern Bell Tel. Co. v. Vidrine, 610 S.W.2d 803, 805

(Tex.Civ.App.—Houston {1st. Dist.] 1980, writ ref’d n.r.e.); Johnson v. Back,378

S.W.2d 723 (Tex.Civ.App.-Amarillo 1964, no writ). Furthermore, the holding in

Vidrine teaches us, “Since an attorney is a special rather than a general agent, his

client is not required to give notice of any limitation of authority. 7 Tex.Jur.2d,

Point 1 Attorneys at Law § 71, citing Magill v. Rugeley, 171 S.W. 528

(Tex.Civ.App.-Galveston 1914, err. ref'd);Commercial Credit Co. v. Crone, 270

S.W. 209, (Tex.Civ.App.-Amarillo 1925, no writ).


                                           4
        Under Texas authorities, an attorney is a special agent and his powers and

authority are confined to those necessary to the proper fulfillment of the duties cast

upon him by such employment. 5 Tex.Jur. 444, sec. 41; Bourland v. Huffhines,

Tex.Civ.App., 269 S.W. 184, affirmed. One dealing with a special agent does so at

his peril; if the special agent exceeds his authority, then the principal, in the

absence of ratification, is not bound by the acts of such special agent. Bourland v.

Huffhines, supra; 2 Tex.Jur. 406, 407 and 408, secs. 22, 23 and 24; 2 Tex.Jur. 423

and 424, sec. 37. An agent’s authority to bind a principal is also discussed by the

Court in Argyle Independent School Dist. Ex rel. Bd. Of Trustrees v. Wolf, 234

S.W.3d 229, (Tex. Civ. App.—Ft. Worth 2007). Here, the Court held that when a

party who is dealing with an agent fails to ascertain the fact and the scope of the

agent’s authority, she does so at her own risk.1


              B. Record Evidence Rebuts Presumption of Representation
                                           & Authority to Bind

1.      Docket Sheet & Reporter’s Record. In the instant matter, Appellees failed

to allege that Christopher Dean, or Rosenthal & Watson, P.C. had authority to

settle Appellants’ claims in their Counter-Claim for breach of Contract. That is,

Appellees did not specifically plead that argument that Christopher Dean had the

authority to settle Appellants lawsuit—either by virtue of his authority as derived

1
 A WestlawNext search yielded 71 authorities in Texas (state & federal) relating to the Duty to ascertain
authority, in general.

                                                    5
from his association with Rosenthal & Watson, P.C., or by virtue of his alleged

authority to bind Appellants, independent of his association with Rosenthal &

Watson, P.C. And, Appellees produced no evidence that Christopher Dean was

hired by Appellants to represent them. Other than the letter which Appellees

claimed constituted a Rule 11 settlement agreement, the only “evidence” offered

was a statement by Appellees’ counsel. At the hearing on Appellee’s Motion for

Summary Judgment, Appellees make the conclusory statement that “Mr. Dean was

duly employed.” RR 7-11-14, P. 13, L. 4.


      The Court in its Opinion noted Appellees attorneys statements at the hearing

on the Motion for Summary Judgment, wherein their attorney states that Mr. Dean

was “lead counsel.” Appellees brought forward no other evidence that Appellants

employed Christopher Dean. And, the Opinion of this Court inferred that Mr.

Dean was duly employed by Appellants by noting his appearances at the trial, in

2009, and in 2010.

      Appellants would respectfully point out that the Docket Sheet shows that

the only appearance attorney Dean made in 2010 was an appearance at a hearing

on Plaintiff’s Motion for New Trial, held March 31, 2010; from that point forward,

the docket sheet and the record does not reflect that Mr. Dean made anymore court

appearances on behalf of Appellants.

      With regard to whether Christopher Dean was “lead attorney,” Appellants
                                        6
would respectfully point out that the record also indicates:

      Appellants counsel maintains that he was lead counsel for Appellants, that

        he argued approximately 25 motions, and that Christopher Dean was

        associated by Rosenthal & Watson, P.C. to assist at trial. RR, 7-11-14, P.

        16, L. 25.   This is undisputed, other than Appellees counsel claiming

        attorney Dean was “lead counsel.”

      Christopher Dean did not make an appearance at any hearing after the date

        of the alleged agreement, October 5, 2011. This is a matter of record, as

        evidenced by the Docket Sheet. CR, 04-14-00354, P. 99-147.

2.     No Christopher Dean Appearances After October 5, 2011. Appellants

would respectfully point out, as noted, the fact that Christopher Dean made no

appearances after the date of the alleged agreement gives rise to the presumption

that, at the time that he sent the so-called agreement to Appellee’s counsel, he was

acting as an agent for Rosenthal & Watson, P.C., whose services had already been

terminated. Specifically, Appellants would also respectfully point out that the

Docket Sheet shows the following hearings and depositions were held subsequent

to the date of October 5, 2011 letter, and it evidences the appearances of counsel,

other than Christopher Dean:

           The May 19, 2010 Hearing on Defendant’s Motion for Protective
            Order,

                                            7
          The June 11, 2010 deposition of Defendant Jose Juarez,
          the April 7, 2011 Motion on Hearing Regarding Minor’s Settlement,
           (See, Appearances, RR, Vol. 1, P.2),
          the May 31, 2011 hearing, which was scheduled to be a “status
           hearing” on Appellants need for new counsel, but ended up being a
           hearing on Appellees’ Motion to Enforce, (See, Appearances, RR,
           Vol. 2, P. 2),
          the June 23, 2011 hearing, which sworn, undisputed testimony by Luz
           Chavez proves she was not given notice of—a court clerk nodded
           when asked whether he had given her notice, but no proof thereof,
           such as a return receipt of a letter, exists in the record, (See,
           Appearances RR, Vol 3, P. 2.).


3.    Appellants Hired Rosenthal & Watson, P.C.            The record contains

affidavits executed by Luz Chavez and her two adult children, CR Vol. 1, Pages

118-130, attached to Plaintffs’ Response to Motion for Summary Judgment,

wherein they make clear that they hired Rosenthal & Watson, P.C. to represent

them in their lawsuit against Appellees.

      From these sworn affidavits and the evidence gleaned from the Docket

Sheet, we can deduce that Appellants did NOT hire Christopher Dean to represent

them in the underlying lawsuit. It makes no sense that Appellants would hire

Rosenthal & Watson, P.C., fire Rosenthal & Watson, P.C. for attempting to bully

them into settling their lawsuit, give Christopher Dean authority to settle their

lawsuit for the same amount, only a few weeks later, then rehire Rosenthal &

Watson, P.C. to represent them at all subsequent hearings. The evidence in the

                                           8
record gives rise to the inference that Christopher Dean was acting as an agent for

Rosenthal & Watson, P.C. on October 5, 2011, at a time after which Appellants

had made it clear that they wanted nothing more to do with that law firm, and had

refused to sign the formal settlement documents.

4.    All Understood Dean Associated With Rosenthal & Watson, P.C.

      Appellees pleadings do not specifically plead that Christopher Dean had

authority to enter into a settlement of Appellant’s claims, and the first time their

argument regarding Christopher Dean’s authority was mentioned is verbally, at the

hearing on Appellees’ Motion for Summary Judgment. Prior to that time, all

parties and the Judge understood that Christopher Dean was involved in the

lawsuit, only as an agent for Rosenthal & Watson, P.C. See the Trial Court’s

surprise at the new argument, RR. 7-11-14, P. 12, L. 11-14.

      In response to this clever, though disingenuous, move on Appellees’ part,

Appellants filed a Motion for New Trial which included affidavits, wherein

Appellants specifically denounce giving Christopher Dean authority to settle their

lawsuit. Furthermore, see a letter motion, attached hereto as Appendix A, which

was filed in the underlying cause by Luz Chavez, entitled “Plantiffs’ Motion for

Reconsideration.” It was referenced in Appellants’ Reply Brief. Here, Luz Chavez

states that she did not consent to settlement of her lawsuit—period. And, with

respect to affirmatively rebutting any presumption of Christopher Dean’s authority

                                         9
to settle, she specifically states, “

       His (Rosenthal’s) law firm and Chris Dean had no right to act like I

       had accepted it, or like any member of my family had accepted it.”

       CR, Vol. 1, P. 102.

5.     Affidavits In Motion for New Trial. When affidavits are filed as part of a

motion for new trial, the proponent of the affidavits is not required to introduce

them into evidence at a hearing on the motion.           Director, State Employees

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994), and it is

sufficient that the affidavits are attached to the motion and made part of the record.

Id. Because Appellants affidavits, which specifically address Christopher Deans

lack of authority to settle their claims (in addition to Plaintiffs Motion for

Reconsideration, filed in June 2, 2011), Appellants did to have a burden to request

a hearing. See Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc.,

143 S.W.3d 538, 546 (Tex.App.—Austin 2004, no pet.). If the factual assertions in

a party’s affidavit are not controverted by the opposing party, the party offering the

affidavit satisfies his burden, if his affidavit sets forth facts that, if true, negate

intentional or consciously indifferent conduct by the defendant. Further, a hearing

is not necessary on an uncontroverted motion. The trial court must accept as true

the uncontroverted affidavits. Averitt v. Bruton Paint & Floor Co., 773 S.W.2d

574, 576-78 (Tex. App.—Dallas 1989, no writ).

                                          10
       C. Record Proves Appellees Noncompliance With Established Law

                                Establishing Authority

1. Failed Pleading.      When a party asserting that the agent with whom they

   negotiated with had authority to settle a claim on behalf of its principal, that

   party:

    must plead the facts relating to that contention. See F.M. Stigler, Inc. v.
     H.N.C. Realty Co., 595 S.W.2d 158, 163 (Tex.Civ.App.— Dallas 1980, writ
     filed); Hotel Longview v. Pittman, 276 S.W.2d 915, 919 (Tex.Civ.App.—
     Texarkana 1955, writ ref’d n.r.e.); and,
    must ascertain both the fact and scope of the agent’s authority. See Tex.
     Cityiew Care Ctr. v. Fryer, 227 S.W.3d 345, 352-53 (Tex. Civ. App.—Ft.
     Worth 2007); Lifshutz v. Lifshutz, 199 S.W. 3d 9, 23 ((Tex. App. – San
     Antonio 2006, pets denied);

      Appellees plead as follows:

      Thus, Appellees Third Amended Answer and Original Counter-Claim, CR

7-30-14, P. 205, refers only to Plaintiffs—without making a distinction as to

whether they were represented by Rosenthal & Watson, P.C., or their agent,

Christopher Dean; or, Christopher Dean as an independent counsel.


      Further, Plaintiffs Motion for New Trial, included without timely objection

from Appellees, offered new evidence in the form of a Memorandum dated 9-27 to

9-28-2-10 from Alphonso (Poncho) Gonzales. CR, 7-30-14, P. 450.             In this

Memorandum, Mr. Gonzales verified the facts sworn to by Appellant Luz Chavez,

in her Affidavit attached to Plaintiffs Response to Defendants’ Motion for

                                        11
Summary Judgment, wherein she expressly refused to sign settlement papers sent

by Rosenthal & Watson, P.C. He states, “Seemed very convinced, she wasn’t

having anything to talk about…She cut me off immediately and didn’t want to hear

it.” He signs off with the following, “End of Initial Contact/Probably Last Contact

Memo.” CR, 7-30-14, P. 450.


2. The Law Regarding Rebuttal of Presumptions.               The general rule for

presumptions is that when any type of evidence contrary to the presumed issue has

been produced, the issue is then ripe for submission to the jury.          Bryan v.

Watamull, 230 S.W.3d 503 (Tex. App. Dallas 2007), rev. denied; See Comment

Note, 5 A.L.R.3d 19 (Effect of presumption as evidence or upon burden of proof

where controverting evidence is introduced). "A presumption is simply a rule of

law requiring the trier of fact to reach a particular conclusion in the absence of

evidence to the contrary."); Texas Water Rights Comm'n v. Wright, 464 S.W.2d

642, 646 (Tex.1971); Combined Am. Ins. Co. v. Blanton, 163 Tex. 225, 353

S.W.2d 847, 849 (1962). The Texas Supreme Court, in Combined Am. Ins. Co. v.

Blanton, 163 Tex. 353 S.W. 2d. 847 (1962) said:


      A presumption is an artificial thing, a mere house of cards, which one
      moment stands with sufficient force to determine an issue, but at the
      next, by reason of the slightest rebutting evidence, topples utterly out
      of consideration of the trier of facts. Cited in Tomhave v. Oaks
      Psychiatric Hosp., 82 S.W. 3d 381 (Tex. App. Austin, 2002).


                                        12
      Once sufficient evidence is produced to support a finding of the non-

existence of the presumed fact, the case then proceeds as if no presumption ever

existed. Texas A & M Univ. v. Chambers, 31 S.W.3d 780, 784-85 (Tex.App.-

Austin 2000, pet. denied). That is, the presumption stands only in the absence of

evidence to the contrary. Temple Indep. Sch. Dist. v. English, 896 S.W.2d 167, 169

(Tex.1995).

                            D.    Minor’s Settlement.

      Because the Minor’s settlement was addressed in Christopher Dean’s

October 5, 2011 Letter, the evidence noted herein establishes that the Rosenthal

firm, and Christopher Dean had no authority to file a motion requesting the

appointment of an ad litem. Accordingly, the judgment cannot be sustained by any

recommendation by any Attorney Ad Litem.

                                 E. CONCLUSION

      Function of Summary judgment is not the deprivation of a party’s right to a

full hearing on the merits of any real issue of fact, but “is the elimination of

patently unmeritorious claims or untenable defenses.” Swilley v. Hughes, 488

S.W.2d 64 68 (Tex. 2002).        Review of a summary judgment under either a

traditional standard or no evidence standard requires that the evidence presented by

both the motion and the response be viewed in the light most favorable to the

nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors

                                         13
could and disregarding all contrary evidence and inferences unless reasonable

jurors could not. Gish, 286 S.W.3d at 310; WalMart Stores, Inc. v. Rodriguez, 92

S.W.3d 502, 506 (Tex.2002); Nixon, 690 S.W.2d at 548, 549.

                                     PRAYER

      For the reasons, and the evidence set forth herein, Appellants respectfully

request that the Court grant this motion for rehearing, withdraw its opinion, reverse

the trial court’s judgment, and either render judgment for Appellants, or reverse

and remand for a new trial.

                                              Respectfully submitted,

                                             /s/ Mark Alvarado
                                          By: ___________________________
                                             Mark Alvarado
                                             State Bar No. 01126520
                                             Law Office of Mark Alvarado
                                             9600 Escarpment Blvd., Suite 745
                                             Austin, Texas 78749
                                             Telephone: (512) 287-9469
                                             Facsimile: 512-582-8651
                                             alvarado_mark@hotmail.com
                                             ATTORNEY FOR APPELLANTS




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                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document was served on all
parties through their respective attorneys of record, in accordance with the Texas Rules of Civil
Procedure, via efile.texcourts.gov electronic mail, and/or facsimile, on this the 29th day of July,
2015, as follows:

Merritt Clements                                  Donato D. Ramos, Sr.
Strasburger                                       Law Offices of Donato D. Ramos
2301 Broadway St.,                                P. O. Box 452009
San Antonio, Texas 75215                          Laredo, Texas 78045-2009
Phone (210) 250-6005                              Phone (956) 722-9909
Fax (210) 258-2717                                Fax (956) 727-5884
merrit.clements@strasburger.com
Attorneys for Defendants Kansas City Southern Railway and Jose Juarez

Lynn Watson
Rosenthal & Watson, P.C.
6601 Vaught Ranch Road, Suite 200
Austin, Texas 78730-2309
lwatson@rosenthalwatson.com
Attorney for Intervenor Rosenthal & Watson, PC

Matthew Wagner
Bartlett & Schober, P.C.
1611 Nueces Street
Austin, Texas 78701
512-474-7678
512-597-3510 Fax
mwagner@bartlettschober.com
Attorney for Mr. Ron Satija
Trustee for Estate of Rosenthal & Watson, PC
                                                               /s/ Mark Alvarado
                                                         _____________________
                                                               Mark Alvarado




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