                                                                                    ACCEPTED
                                                                                13-15-00052-CV
                                                                THIRTEENTH COURT OF APPEALS
                                                                       CORPUS CHRISTI, TEXAS
                                                                          7/13/2015 10:48:56 AM
                                                                         CECILE FOY GSANGER
                                                                                         CLERK

                          No. 13-15-00052-CV

                                  In the                   FILED IN
                                                   13th COURT OF APPEALS
                            Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS
                   Thirteenth Supreme Judicial District
                                                   7/13/2015 10:48:56 AM
                             Edinburg, Texas         CECILE FOY GSANGER
                                                        Clerk


                     ALBERTO R. GARZA AND
                 LETICIA I. GARZA, INDIVIDUALLY,
                                                           APPELLANTS
                                 VS.

                 GARY BURCH CONSTRUCTION, INC.,
                                                                APPELLEE

                   REPLY BRIEF OF APPELLANTS


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
                                    ARGUMENT

       Appellee’s brief, while lengthy, still does not identify any evidence that

establishes the accrual date of the Garzas’ nuisance claim. To dismiss this case on

limitations grounds, Appellee had to conclusively prove that the Garzas were

injured by a permanent nuisance. In a related appeal (hereinafter “Garza I”) this

Court acknowledged that there was no evidence establishing that the nature of the

nuisance was permanent when it said “[t]he Garzas did not assert in their petition,

nor is there any evidence in the record to suggest, that the survey or the

‘finished floor elevation,’ having been completed in 1997, are now capable of

being ‘repaired, fixed, or restored.’ Garza v. Melden & Hunt, Inc., No. 13-14-

00329-CV, 2015 WL 2160474 *3, May 7, 2015 (pet. filed) [emphasis added].

Without identifying any supporting evidence in the record, this Court of Appeals in

Garza I erroneously concluded that “it is apparent that the Garzas’ claims are based

on a permanent condition for which ‘future injury can be reasonably evaluated.’”

Id. Because the limitations period for a permanent nuisance begins to accrue when

injury first occurs or is discovered, this Court of Appeals in Garza I then found that

the Garzas’ nuisance claim accrued in 2000, eight years before the Garzas filed

suit. Id.

       Appellee in this case relies entirely on this Court’s decision in Garza I.

Appellant has filed a petition for review (Case No. 15-0460) in the Texas Supreme
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Court in Garza I because this Court of Appeals upheld the grant of summary

judgment without any evidence in the record that established that the nuisance was

permanent in nature. As a defendant moving for summary judgment on the

affirmative defense of limitations, Appellee has the burden to conclusively

establish that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,

988 S.W.2d 746, 748 (Tex. 1999). As this Court of Appeals acknowledged in

Garza I, there was no evidence in the record that establish whether the nuisance

was permanent or temporary so Appellee failed to 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 claims.




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                                      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




                         CERTIFICATE OF COMPLIANCE

       Per TEX. R. APP. P. 9.4(i)(3), I certify that the Reply Brief of Appellants

document received by this Court on July 13, 2015, was generated by a computer

using Microsoft Word, which indicated that the word count of this document is

343.

                                            /s/ Albert Garcia
                                      Alberto T. Garcia III




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                          CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing document was forwarded to the following on July 13, 2015.

Mr. Hector J. Torres                       Via Email hjtorrespc@att.net
LAW OFFICE OF HECTOR J. TORRES, P.C.
200 N. 12th Ave., Suite 201
Edinburg, Texas 78541

Ms. Brandy Wingate Voss                    Via Email brandy@appealsplus.com
SMITH LAW GROUP
820 E. Hackberry Ave.
McAllen, TX 78501


                                        /s/ Albert Garcia
                                  Alberto T. Garcia III




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