Rex Smith v. Kelly Davis and Amber Davis

Opinion

ACCEPTED 12-14-00007-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 4/7/2015 3:33:25 PM CATHY LUSK CLERK

No. 12-14-00007-CV In the Court of Appeals Twelfth Court of Appeals District Tyler, Texas

REX SMITH and NANCY SMITH, Appellants

v.

KELLY DAVIS AND AMBER DAVIS Appellees

Appealed from the 294th Judicial District Court Van Zandt County, Texas

APPELLEES’ REPLY TO APPELLANT’S RESPONSE TO MOTION FOR REHEARING OF OPINION RENDERED FEBRUARY 18, 2015

ATTORNEY FOR APPELLEES: S. Gary Werley Law Office of S. Gary Werley Texas State Bar No. 21187000 1840 Acton Highway, Suite 102 Granbury, Texas 76049 817-573-7700 817-573-7710 - fax sgwerley@werleylaw.com

Appellees’ Motion for Rehearing Page 1 TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES, Kelly Davis and Amber Davis, Appellees, and files this Reply

to Appellant’s Response to Motion for Rehearing of the Court’s Opinion Rendered

on February 18, 2015, and for same would show unto the Court the following:

I.

In Reply to the Response to the Rehearing as filed by the Smiths, the Davis’

herein state as follows:

1. As to the issue of overcompensation to the Davis’.

In the original motion for rehearing the Defendant did not object to the

amount of actual damages. Notwithstanding same the Court modified same

in its opinion and judgment. Appellee’s Motion for Rehearing pointed out

the failure to object. The Response does not address same.

Mr. Davis testified that the agreement between the parties was that all

monies paid on Tract 9 would be applied to Tract 7. (RR P. 74). Rex

Smith never called and said that they were late or missed a payment. (RR

P. 30). The lawsuit was filed in February of 2008, and Davis was paid up

at that time. (RR P.29). The jury believed Mr. Davis. The Response makes the statement that “when the parties agreed to a deal

on Lot 7, Smith agreed to accept a return of Lot 9, that the Davis’ account

accrued equity on that Lot – the $3,700.00 – as a down-payment on Lot 7.

There is no evidence to support this statement. There is no testimony

concerning equity. The jury did not believe Smith.

2. As stated in the Motion for Rehearing filed by the Davis’, the pleadings

filed by Plaintiff stated that violations of the sections of the Texas Property

Code, in several instances, allowed for attorney’s fees under the DTPA.

For instance, §5.069 provides that the Seller shall provide the Purchaser a

survey. §5.070, not addressed by Appellant, provides that the Seller shall

provide the Purchaser tax certificates. These items were not provided as

found by the jury in response to Jury Questions. Both Sections state that

the “failure to provide the information required by this Section is a false,

misleading or deceptive act or practice within the Deceptive Trade Practice

Act, and entitles the Purchaser to cancel and rescind the Executory

Contract and receive full refund of all payments made to the Seller.

Either one of these disclosures would have disclosed that the property

described as Lot 7 of the Tall Oaks Estates Subdivision, Van Zandt

County, did not exist. (Pl’s Exh. 3, Def’s Exh 7A, RR 94). The jury found

that as a result of the failure to provide a survey and/or tax certificates for the property that did not exist, the Davis’ relied upon these

misrepresentations, and subsequently suffered damages in excess of

$33,000.00. As a result the actions of Mr. Smith, attorney’s fees are due.

WHEREFORE, PREMISES CONSIDERED, Appellee requests that this

Court grant the damages as found by the jury for violation §5.077 of the Property

Code, the actual damages found by the jury, as well as attorney’s fees.

LAW OFFICES OF S. GARY WERLEY

BY:___/s/ S. Gary Werley_____ S. GARY WERLEY State Bar No. 21187000 sgwerley@werleylaw.com

1840 Acton Highway, Suite 102 Granbury, Texas 76049 (Telephone) 817-573-7700 (Facsimile) 817-573-7710

ATTORNEY FOR APPELLEES CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of Appellees’ Reply to Appellant’s Response to Motion for Rehearing has been forwarded to the following attorneys of record on this day of e-filing:

Via email or efiling Jeffrey C. Irion P. O. Box 5527 Gun Barrel City, TX 75147-5012 Jirionattorney@aol.com

Greg Smith Ramey & Flock, PC 100 E. Ferguson, Suite 500 Tyler, Texas 75202 GregS@rameyflock.com By:__/s/ S. Gary Werley_________ S. GARY WERLEY