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
14 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