ACCEPTED 08-21-00023-cv EIGHTH COURT OF APPEALS 08-21-00023-cv EL PASO, TEXAS 11/1/2021 5:11 PM ELIZABETH G. FLORES CLERK
No.08-21-00023-CV
FILED IN 8th COURT OF APPEALS EL PASO, TEXAS IN THE COURT OF APPEALS 11/1/2021 5:11:00 PM FOR THE EIGHT DISTRICT OF TEXASELIZABETH G. FLORES AT EL PASO Clerk
JOSE SALVADOR HERNANDEZ,
Appellant,
V.
ARLEON,LLC AND ISSE INVESTMENT GROUP COPO>ORATION, Appellees.
ON APPEAL FROM THE 171^^ DISTRICT COURT EL PASO COUNTY,TEXAS CAUSE NO.2017DCV2709
REPLY TO APPELLEES’ BRIEF
David Pierce State Bar No. 15992700 Law Office of David Pierce 7598 N. Mesa, Suite 202 El Paso, Texas 79912 Telephone:(915)465-0912 Facsimile:(915)613-3487 Counsel for Appellant Jose Salvador Hernandez TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES 1
ABBREVIATIONS AND RECORD REFERENCES 2
RESPONSE TO STATEMENT OF FACTS 3
SUMMARY OF THE ARGUMENT 3
ARGUMENT AND AUTHORITIES 3
PRAYER 9
CERTIFICATE OF COMPLIANCE 9
CERTIFICATE OF SERVICE 10 INDEX OF AUTHORITIES
Cases Page
Worth Steel & Machinery Co v. Norworthy, 570 S.W.2d 132, 136 4 (Tex. Civ. App-Tyler 1978, no writ)
Camarillo v. Cabinets by Michael, Inc., 2018 Tex. App. Lexis 4851, 4 2018 WL 315 3539(Tex. App-Fort Worth, June 28, 2018, pet den.)
Brown v. Brown, 145 S.W. 3d 745 (Tex. App.-Dal, 2004, pet den.) 4
Brooks V. Sherry Lane National Bank, 788 S.W. 2d 874 6 (Tex. App.-Dallas 1990, no writ)
Miller v. Great Lakes Mgt. Serv., Inc, No. 02-16-00087-CV, 6 2017 WL 1018592 at *2(Tex. App.-Fort Worth, Mar. 16, 2017) (mem. op.)
Gilbert v. Kalman, 2021 Tex. App. Lexis 6842, 6 2121 WL 3674083 & n.5 Tex. App.-El Paso, Aug. 19, 2021)
Balderas-Ramirez V. Felder, 537 S.W. 3d 625,632 7 (Tex. App-Austin 2017, pet denied)
Rapid Settlements, Ltd. v. Green, 294 S.W. 3d 701, 706 8 (Tex. App-Houston[W Dist.] 2009, no pet)
Rules and Statues
Texas Rule of Appellate Procedure 9.4 (e) 9
1 ABBREVIATIONS AND RECORD REFERENCES
Appellant Jose Salvador Hernandez is referred to as Appellant
15 3H Logistics, LLC is referred to as “3H
15 Appellee Arleon, LLC is referred to as “Arleon
11 Arleon’s principal Vicente Gomez is referred to as “Vicente
Appellee ISSE Investment Group Corporation is referred to as “ISSE
11 ISSE’s principal Javier Gomez is referred to as “Javier
51 The Clerk’s Record is referred to as “CR (page number)
The Reporter’s Record is referred to as “RR (page number)
2 RESPONSE TO STATEMENT OF FACTS
Appellees claims that Appellant “has repeatedly admitted that he is
responsible for paying the profits to Arleon and ISSE from the water hauling
business. “(Aple.’s Br. p. 4)Appellees claim “Hernandez admitted that he personally
owes $63,000 each”. (Aple.’s Br. p. 5) (emphasis added) Appellant never used the
word “personally” when he discussed payment to Appellees.
SUMMARY OF THE ARGUMENT
This very simple case turns on whether Appellees, who were in a contract with
3H, can hold Appellant, the owner of 3H, liable for 3H’s debt. The answer is no.
ARGUMENT AND AUTHORITIES
Appellee raises six arguments, lettered A-F, in response to Appellant’s brief
Appellant will respond to each ofthose arguments,though not in the order presented
by Appellee.
The Claim that the Affidavit Filed by Appellant is Conclusory Because It Fails to Raise Any Factual Inferences to Justify Its Conclusions Is Nonsensical and States No Argument Whatsoever (Response to Aple.’s Arg. D)
Appellee claims that . . because the Affidavit is devoid of any factual
inferences to support any conclusory statements, it is not competent evidence that
would give rise to a genuine use of material fact.” (Aple.’s Br. p. 24) An inference
is a deduction which the reason of the trier of fact makes from the facts proved. Ft.
3 Worth Steel & Machinery Co v. Nof'worthy, 570 S.W.2d 132, 136 (Tex. Civ. App-
Tyler 1978, no writ) The speaker implies, the hearer or reader infers. Appellee, as
the speaker, could not “raise” any inference by definition, and therefore cannot
respond to Appellees’ argument as articulated.
The Fact That The 3H Tax Returns, Checks And Reports Referred In The Affidavit Were Not Attached Does Not Render The Affidavit Conclusory, Because Those Documents Are Not The Source Of The Factual Information Contained in the Affidavit (Response To Aple.’s Arg. C)
The absence of attached documents only makes an affidavit defective and
conclusoiy if the referenced papers are what provides the affidavit with a factual
basis. Camarillo v. Cabinets by Michael, Inc., 2018 Tex. App. Lexis 4851, 2018
WL 315 3539 (Tex. App-Fort Worth, June 28, 2018, pet den.). In other words, if
the affidavit asserts conclusions based on facts contained in documents, the
documents must be produced. If the affidavits contain factual allegations which
incidentally refer to documents, those documents need not be attached.
For example, in Brown v. Brown, 145 S.W. 3d 745 (Tex. App.-Dal, 2004, pet
den.), cited by Appellants, an expert witness in a divorce case based her conclusions
on facts she observed in the divorce records, but she failed to attach the records. The
court ruled that, without the records, there was no factual basis for the conclusions.
In the instant case. Appellant’s affidavit stated the following facts:
1) He has personal knowledge of all facts stated therein;
4 2) He is the President of 3H Logistics and it is a Texas Corporation in
existence;
3) The 3H business address;
4) That 3H filed tax returns every year;
5) There is no written contract between Appellant and Appellees;
6) At all times relevant to the lawsuit,3H only did business with Appellees
through 3H;
7) All payments under the contract were paid by 3H checks drawn on a
3H bank account;
8) Payments made to Appellees were written on 3H checks;
9) The reports Appellant provided Appellees were on 3H documents
10) Appellant was principal and agent for 3H, but it had the verbal contract
with Appellees;
11) When Appellant was surreptitiously recorded, he and Appellees were
talking about multiple parties and he was not being specific about any
one;
12) Appellant does not now nor he has ever owed Appellants $126,000;
13) The business records attached to the affidavit, while not specific to
Appellees, are business records from Appellant showing it to be an
operating business.(CR 256-57)
5 These facts are personally known to Appellant because he prepared or caused
to be prepared the documents in question. He is not testifying to facts he extracted
from the documents; only that the documents exist. Appellees’ argument fails.
Appellant Was Not Required to Object to the Trial Court Striking His Affidavit; Such a Requirement Is Neither Necessary Nor Logical. In Any Event, Appellant Did Object (Aple.’s Arg. B)
Citing Brooks v. Sherry Lane National Bank, 788 S.W. 2d 874 (Tex. App.-
Dallas 1990, no writ), Appellees argues that Appellant failed to preserve error by not
objecting to the trial court striking Appellant’s affidavit filed in response to
Appellees’ Motion for Summary Judgment. (Aple.’s Br. p. 17) What Appellees
should have included in its brief, but did not, is at least one other Texas Court of
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ACCEPTED 08-21-00023-cv EIGHTH COURT OF APPEALS 08-21-00023-cv EL PASO, TEXAS 11/1/2021 5:11 PM ELIZABETH G. FLORES CLERK
No.08-21-00023-CV
FILED IN 8th COURT OF APPEALS EL PASO, TEXAS IN THE COURT OF APPEALS 11/1/2021 5:11:00 PM FOR THE EIGHT DISTRICT OF TEXASELIZABETH G. FLORES AT EL PASO Clerk
JOSE SALVADOR HERNANDEZ,
Appellant,
V.
ARLEON,LLC AND ISSE INVESTMENT GROUP COPO>ORATION, Appellees.
ON APPEAL FROM THE 171^^ DISTRICT COURT EL PASO COUNTY,TEXAS CAUSE NO.2017DCV2709
REPLY TO APPELLEES’ BRIEF
David Pierce State Bar No. 15992700 Law Office of David Pierce 7598 N. Mesa, Suite 202 El Paso, Texas 79912 Telephone:(915)465-0912 Facsimile:(915)613-3487 Counsel for Appellant Jose Salvador Hernandez TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES 1
ABBREVIATIONS AND RECORD REFERENCES 2
RESPONSE TO STATEMENT OF FACTS 3
SUMMARY OF THE ARGUMENT 3
ARGUMENT AND AUTHORITIES 3
PRAYER 9
CERTIFICATE OF COMPLIANCE 9
CERTIFICATE OF SERVICE 10 INDEX OF AUTHORITIES
Cases Page
Worth Steel & Machinery Co v. Norworthy, 570 S.W.2d 132, 136 4 (Tex. Civ. App-Tyler 1978, no writ)
Camarillo v. Cabinets by Michael, Inc., 2018 Tex. App. Lexis 4851, 4 2018 WL 315 3539(Tex. App-Fort Worth, June 28, 2018, pet den.)
Brown v. Brown, 145 S.W. 3d 745 (Tex. App.-Dal, 2004, pet den.) 4
Brooks V. Sherry Lane National Bank, 788 S.W. 2d 874 6 (Tex. App.-Dallas 1990, no writ)
Miller v. Great Lakes Mgt. Serv., Inc, No. 02-16-00087-CV, 6 2017 WL 1018592 at *2(Tex. App.-Fort Worth, Mar. 16, 2017) (mem. op.)
Gilbert v. Kalman, 2021 Tex. App. Lexis 6842, 6 2121 WL 3674083 & n.5 Tex. App.-El Paso, Aug. 19, 2021)
Balderas-Ramirez V. Felder, 537 S.W. 3d 625,632 7 (Tex. App-Austin 2017, pet denied)
Rapid Settlements, Ltd. v. Green, 294 S.W. 3d 701, 706 8 (Tex. App-Houston[W Dist.] 2009, no pet)
Rules and Statues
Texas Rule of Appellate Procedure 9.4 (e) 9
1 ABBREVIATIONS AND RECORD REFERENCES
Appellant Jose Salvador Hernandez is referred to as Appellant
15 3H Logistics, LLC is referred to as “3H
15 Appellee Arleon, LLC is referred to as “Arleon
11 Arleon’s principal Vicente Gomez is referred to as “Vicente
Appellee ISSE Investment Group Corporation is referred to as “ISSE
11 ISSE’s principal Javier Gomez is referred to as “Javier
51 The Clerk’s Record is referred to as “CR (page number)
The Reporter’s Record is referred to as “RR (page number)
2 RESPONSE TO STATEMENT OF FACTS
Appellees claims that Appellant “has repeatedly admitted that he is
responsible for paying the profits to Arleon and ISSE from the water hauling
business. “(Aple.’s Br. p. 4)Appellees claim “Hernandez admitted that he personally
owes $63,000 each”. (Aple.’s Br. p. 5) (emphasis added) Appellant never used the
word “personally” when he discussed payment to Appellees.
SUMMARY OF THE ARGUMENT
This very simple case turns on whether Appellees, who were in a contract with
3H, can hold Appellant, the owner of 3H, liable for 3H’s debt. The answer is no.
ARGUMENT AND AUTHORITIES
Appellee raises six arguments, lettered A-F, in response to Appellant’s brief
Appellant will respond to each ofthose arguments,though not in the order presented
by Appellee.
The Claim that the Affidavit Filed by Appellant is Conclusory Because It Fails to Raise Any Factual Inferences to Justify Its Conclusions Is Nonsensical and States No Argument Whatsoever (Response to Aple.’s Arg. D)
Appellee claims that . . because the Affidavit is devoid of any factual
inferences to support any conclusory statements, it is not competent evidence that
would give rise to a genuine use of material fact.” (Aple.’s Br. p. 24) An inference
is a deduction which the reason of the trier of fact makes from the facts proved. Ft.
3 Worth Steel & Machinery Co v. Nof'worthy, 570 S.W.2d 132, 136 (Tex. Civ. App-
Tyler 1978, no writ) The speaker implies, the hearer or reader infers. Appellee, as
the speaker, could not “raise” any inference by definition, and therefore cannot
respond to Appellees’ argument as articulated.
The Fact That The 3H Tax Returns, Checks And Reports Referred In The Affidavit Were Not Attached Does Not Render The Affidavit Conclusory, Because Those Documents Are Not The Source Of The Factual Information Contained in the Affidavit (Response To Aple.’s Arg. C)
The absence of attached documents only makes an affidavit defective and
conclusoiy if the referenced papers are what provides the affidavit with a factual
basis. Camarillo v. Cabinets by Michael, Inc., 2018 Tex. App. Lexis 4851, 2018
WL 315 3539 (Tex. App-Fort Worth, June 28, 2018, pet den.). In other words, if
the affidavit asserts conclusions based on facts contained in documents, the
documents must be produced. If the affidavits contain factual allegations which
incidentally refer to documents, those documents need not be attached.
For example, in Brown v. Brown, 145 S.W. 3d 745 (Tex. App.-Dal, 2004, pet
den.), cited by Appellants, an expert witness in a divorce case based her conclusions
on facts she observed in the divorce records, but she failed to attach the records. The
court ruled that, without the records, there was no factual basis for the conclusions.
In the instant case. Appellant’s affidavit stated the following facts:
1) He has personal knowledge of all facts stated therein;
4 2) He is the President of 3H Logistics and it is a Texas Corporation in
existence;
3) The 3H business address;
4) That 3H filed tax returns every year;
5) There is no written contract between Appellant and Appellees;
6) At all times relevant to the lawsuit,3H only did business with Appellees
through 3H;
7) All payments under the contract were paid by 3H checks drawn on a
3H bank account;
8) Payments made to Appellees were written on 3H checks;
9) The reports Appellant provided Appellees were on 3H documents
10) Appellant was principal and agent for 3H, but it had the verbal contract
with Appellees;
11) When Appellant was surreptitiously recorded, he and Appellees were
talking about multiple parties and he was not being specific about any
one;
12) Appellant does not now nor he has ever owed Appellants $126,000;
13) The business records attached to the affidavit, while not specific to
Appellees, are business records from Appellant showing it to be an
operating business.(CR 256-57)
5 These facts are personally known to Appellant because he prepared or caused
to be prepared the documents in question. He is not testifying to facts he extracted
from the documents; only that the documents exist. Appellees’ argument fails.
Appellant Was Not Required to Object to the Trial Court Striking His Affidavit; Such a Requirement Is Neither Necessary Nor Logical. In Any Event, Appellant Did Object (Aple.’s Arg. B)
Citing Brooks v. Sherry Lane National Bank, 788 S.W. 2d 874 (Tex. App.-
Dallas 1990, no writ), Appellees argues that Appellant failed to preserve error by not
objecting to the trial court striking Appellant’s affidavit filed in response to
Appellees’ Motion for Summary Judgment. (Aple.’s Br. p. 17) What Appellees
should have included in its brief, but did not, is at least one other Texas Court of
Appeals which expressly declined to follow the Brooks holding. See Miller v. Great
Lakes Mgt. Serv., Inc, No. 02-16-00087-CV, 2017 WL 1018592 at *2(Tex. App.-
Fort Worth, Mar. 16, 2017)(mem. op.) (declining to follow the Brooks holding)
Even more on point, this Court has specifically declined to rule on the issue. Gilbert
V. Kalman,2021 Tex. App. Lexis 6842,2121 WL 3674083 & n.5 Tex. App.-El Paso,
Aug. 19, 2021)(noting the conflict and declining to rule on the issue)
This Court should reject the requirement of objecting to the striking of
summary judgment evidence in any case, but especially this one. The main purpose
to an objection, motion for new trial or other statement of opposition by a party by
6 a ruling is two-fold: to make it clear to the Court that party’s opposition to the action
and to educate the Court that you believe they are committing error.
Some actions against a party are so adverse or prejudicial that the injured
party’s opposition is obvious. Thus, motions for new trial are not required after
every adverse Judgment, one does not need to have the Court “note my exception
after an adverse evidence ruling, and no Motion to Reconsider is necessary after a
court strikes one’s pleadings. Striking a summary Judgment affidavit could only be
prejudicial to its proponent, and only could be done by the Judge with full awareness
of the consequences. Another objection would be superfluous.
In any case. Appellant did argue against striking the motion and informed the
Court why.(CR 38) How would a subsequent objection have better preserved the
error? Appellants’ argument should be rejected.
The Fact That Appellees Established All Elements Of A Breach Of Contract Claim Against Appellant Is Irrelevant; Appellant Met His Burden By Presenting Evidence Raising A Fact Issue Regarding Appellant Being A Party To The Contract (Responsive To Aple.’s Point E)
To obtain a traditional summary Judgment, a party must present evidence that
establishes or negates a claim or defense as a matter of law. Balderas-Ramirez v.
Felder, 537 S.W. 3d 625, 632(Tex. App-Austin 2017, pet denied) If that burden is
met, the non-movant must present evidence to raise a genuine issue of material fact
that would defeat summary Judgment. Id.
1 In the instant case, Appellants presented evidence of a contract and breach.
Appellee presented evidence that he was not a party to the contact and, therefore,
was not liable on the contract. It is fundamental that only parties to a contract can
be held liable for the contract’s breach. Rapid Settlements, Ltd. v. Green, 294 S.W.
3d 701, 706 (Tex. App-Houston [1"^ Dist.] 2009, no pet) Thus, summary judgment
was improper.
Appellees’ Claim That Appellant Failed To Brief His Claim Is Inaccurate: The Facts Established His Position, He Provided the Standard of Review and His Argument Identified and Explained the Error; Citation to Further Authority was Unnecessary (Response to Aple.’s Arg. A)
As has been explained, the trial court’s error was not complicated; she struck
a valid affidavit and granted a summary judgment for breach of contract against a
stranger to the contract. Appellant did not, and does not, think it necessary to cite a
case stating that a stranger to a contract cannot breach that contract, but now has
cited such a case.
The real reason Appellant did not write more in his initial brief was because
he had no idea what arguments Appellees would make. At trial, they argued
conclusory affidavit and lack of verified denial, both of which. Appellant contends.
were wrong. On appeal, they have levied a host of new arguments. Appellant’s
brief was sufficient to apprize this Court ofthe trial court’s error. This case must be
reversed.
8 PRAYER
For the foregoing reasons, Appellant request that the Court reverse the trial
court's judgment, remand the case for a new trial, and grant Appellant such other
and further relief to which he may be entitled.
Respectfully submitted,
LAW OFFICE OF DAVID PIERCE 7598 N. Mesa, Suite 202 E1Paso,Texas 79912 Telephone: (915) 465-0912 Facsimile: (915) 613-3487
��rl,----__ By: DAVID PIERCE State Bar No. 15992700 Attorneys for Appellant
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(e) I hereby certify that this brief contains 1933 words. This is a computer-generated document created in Microsoft Word, using 14-point Times New Roman font for all text. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
-�r,,r---- �IERCE State Bar No. 15992700 Attorneys for Appellant
9 CERTIFICATE OF SERVICE
I hereby certify that on this Monday, November 1, 2021, the foregoing document was electronically filed with the clerk of the Court and a true and correct copy was electronically served on the paities/attomeys of record listed through the efile.txcourts.gov system.
DAVID PIERCE
10 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
David Pierce Bar No. 15992700 dpierce@davidpiercelaw.com Envelope ID: 58741607 Status as of 11/2/2021 10:35 AM MST
Associated Case Party: JoseSalvadorHernandez
Name BarNumber Email TimestampSubmitted Status
David Pierce dpierce@dpiercelaw.com 11/1/2021 5:11:00 PM SENT
Ariana Morales amorales@davidpiercelaw.com 11/1/2021 5:11:00 PM SENT
Case Contacts
David Pierce dpierce@davidpiercelaw.com 11/1/2021 5:11:00 PM SENT
Blake Downey bdow@scotthulse.com 11/1/2021 5:11:00 PM SENT
Associated Case Party: Arleon , LLC
Francisco Ortega fort@scotthulse.com 11/1/2021 5:11:00 PM SENT