                                                                                ACCEPTED
                                                                            04-15-00548-CV
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       12/2/2015 2:18:15 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

                          NO. 04-15-00548-CV

                                                         FILED IN
                                                  4th COURT OF APPEALS
                       IN THE COURT OF APPEALS     SAN ANTONIO, TEXAS
                FOR   THE FOURTH DISTRICT OF TEXAS12/2/2015 2:18:15 PM
                             SAN ANTONIO            KEITH E. HOTTLE
                                                          Clerk


                          RUFINA REYES YANEZ

                                              Appellant,

                                    v.

                 AMERICAN GENERAL LIFE INSURANCE CO.

                                              Appellee.


ON APPEAL FROM THE 341ST JUDICIAL DISTRICT COURT OF WEBB COUNTY, TEXAS

                Trial Court Cause No. 2014CVF000504 D3


      APPELLEE’S RESPONSE TO APPELLANT’S MOTION
   FOR THE COURT TO TAKE MANDATORY JUDICIAL NOTICE

 David T. McDowell                EDISON, MCDOWELL & HETHERINGTON LLP
 State Bar No. 00791222           Phoenix Tower
 Jason A. Richardson              3200 Southwest Freeway, Ste. 2100
 State Bar No. 24056206           Houston, Texas 77027
 Robert P. Debelak III            Telephone: 713-337-5580
 State Bar No. 24078410           Facsimile: 713-337-8850
                                  david.mcdowell@emhllp.com
                                  jason.richardson@emhllp.com
                                  bobby.debelak@emhllp.com

                           Counsel for Appellee
I.     Introduction.

       1.    Appellant’s “Motion for the Court to Take Mandatory Judicial

Notice” (the “Motion”) has no basis in fact or law. The Motion purports to contain

a plea of “non est factum,” which has no application to this case.          Further,

Appellant does not identify any facts or documents for which the Court can or

should take judicial notice. The Court should disregard the Motion because it is

moot and baseless.

II.    Appellant’s Motion is Moot and Baseless.

       2.    As a preliminary matter, the Court should deny the Motion as moot

because it lacks jurisdiction over this appeal, which has already been dismissed.

Appellant failed to file a timely notice of appeal, and thus failed to invoke the

Court’s jurisdiction. Any attempt to reinstate the appeal is futile, and no amount of

judicially noticed facts can change that.

       3.    Appellant attempts to overcome this by purportedly “enter[ing] a plea

of non est factum.” Motion, at ¶ 3. By “entering” this plea, Appellant argues, the

Court is somehow required to take judicial notice of documents that appear on its

own docket. Id. None of this makes any sense.

       4.    Under Texas law, “[a] plea of non est factum is a plea denying

execution of an instrument sued on.” Barcroft v. Apex Holdings, Ltd., 05-95-

01453-CV, 1996 WL 743626, at *4 (Tex. App.—Dallas Dec. 31, 1996, no writ)



EMH517525                                   2
(citing Black’s Law Dictionary 1053 (6th ed. 1990)).         The effect of a plea

of non est factum is to destroy the prima facie validity accorded to a written

instrument and to cast on the opposing party the burden of introducing evidence of

execution other than the instrument itself. General Missionary Soc. of German

Baptist Churches of N. Am. v. Real Estate Land Title & Trust Co., 134 Tex. 564,

567, 136 S.W.2d 599, 601 (Comm'n App. 1940). Texas law requires that a plea of

non est factum must be affirmatively plead in a document that is sworn or verified,

otherwise the plea is invalid. See Mansfield State Bank v. Fonville, 496 S.W.2d

945, 948 (Tex. Civ. App.—Fort Worth 1973), writ refused NRE (Oct. 3, 1973).

       5.    On its face, Appellant’s argument is absurd and one cannot help but

wonder if it was mistakenly copied and pasted from some irrelevant document

filed in another case. This case involves a life insurance policy that neither of the

parties contends to have been signed by Appellant. There are no facts in this case

that concern the authenticity of any party’s signatures. The Motion does not

contain any explanation for why a plea of non est factum could possibly be

applicable to this matter.     None of the documents attached to the Motion

demonstrate that any signature is inauthentic, and therefore the Court should

decline to take judicial notice of them.

       6.    Regardless, the Motion is not a pleading, nor is it verified or sworn by

Appellant or any other person who has knowledge regarding the authenticity of



EMH517525                                  3
any signatures on any document at issue in the underlying litigation. Appellant’s

attempt to enter a plea of non est factum is invalid and inappropriate.

       7.    What Appellant appears to be doing is passing the blame for her

inaction to her own counsel and the trial court’s clerk. For example, in paragraph 4

of the Motion, Appellant argues that the clerk purportedly failed to file a complete

record with this Court, which somehow resulted in the dismissal of her appeal.

This is nonsense.

       8.    Appellant failed to timely file a notice of appeal, and thereby failed to

invoke the Court’s jurisdiction. Even if the trial court clerk had filed a complete

record with the Court, the appeal was still subject to dismissal for lack of

jurisdiction. The Court properly dismissed this appeal for want of prosecution

when Appellant refused to comply with the Court’s request for her to show cause

on issues relating to jurisdiction. Nothing in the Motion should persuade the Court

to reverse course and change its prior judgment.

III.   Conclusion.

       For the reasons set forth herein, the Court should deny the Motion.




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                                      Respectfully submitted,

                                      EDISON, MCDOWELL & HETHERINGTON LLP


                                         By:                          a
                                           Jason A. Richardson


                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been served
on the 2nd day of December, 2015, on the following counsel of record by US Mail
and email:

Armando Trevino
1519 Washington St., Suite One
Laredo, TX 78042-0544
armando_trevinolaw@hotmail.com
armandotrevinolaw@gmail.com



                                                                  a
                                         Jason A. Richardson



                      CERTIFICATE OF COMPLIANCE

      Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document has 648 words, as calculated by Microsoft Word, the word processing
software used to create the document.


                                                                  a
                                         Jason A. Richardson




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