Case Information

*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 2/9/2015 10:33:31 PM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-13-00717-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 2/9/2015 10:33:31 PM DORIAN RAMIREZ CLERK CASE NO. 13-13-00717-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI–EDINBURG, TEXAS DOUGLAS MICHAEL BULTHUIS, Appellant vs.

JOSE JUAN (J.J.) AVILA, Appellee APPEAL FROM CAUSE NUMBER C-620-07-G th 370 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS

JUDGE NOE GONZALEZ, PRESIDING APPELLANT’S REPLY BRIEF Ronald G. Hole State Bar No. 09834200 HOLE & ALVAREZ, L.L.P. 612 W. Nolana Loop, Ste 370 P.O. Box 720547 McAllen, Texas 78504 Telephone: (956) 631-2891 Telecopier: (956) 631-2415 E-Mail: Mail@HoleAlvarez.com ORAL ARGUMENT REQUESTED February 9, 2015

CASE NO. 13-13-00717-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI–EDINBURG, TEXAS DOUGLAS MICHAEL BULTHUIS, Appellant vs.

JOSE JUAN (J.J.) AVILA, Appellee APPEAL FROM CAUSE NUMBER C-620-07-G th 370 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Summary of Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reply.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Appellant Did Not Bring Forth a Partial Record.. . . . . . . . . . . . 2 B. Appellee Apparently Concedes That it was Improper for Trial Court to Consider Only a Partial Record.. . . . . . . . . . . . . 3 C. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Compliance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

-ii- *4 INDEX OF AUTHORITIES Cases: Page

City of Keller v. Wilson , 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . . 4

Tanner v. Nationwide Mut. Fire Ins. Co. ,

289 S.W.3d 828 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5

Tiller v. McLure , 121 S.W.3d 709 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . 4

Rules & Statutes

Rule 38.3 of the Texas Rules of Appellate Procedure.. . . . . . . . . . . . . . . . 1

-iii- *5 CASE NO. 13-13-00717-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI–EDINBURG, TEXAS DOUGLAS MICHAEL BULTHUIS, Appellant vs.

JOSE JUAN (J.J.) AVILA, Appellee APPEAL FROM CAUSE NUMBER C-620-07-G th 370 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS

JUDGE NOE GONZALEZ, PRESIDING APPELLANT’S REPLY BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW DOUGLAS MICHAEL BULTHUIS, Appellant in the above-entitled and numbered cause, and pursuant to Rule 38.3 of the Texas

Rules of Appellate Procedure, files this his Reply Brief, and for such brief

would respectfully show unto this Honorable Court as follows:

I. SUMMARY OF REPLY The issue before this Court is simple. Can a trial court set aside a jury’s verdict, and render a judgment notwithstanding the verdict, based upon “a tiny

fraction of the record” or “a mere fraction of the testimony from this multi-day

trial?” The short answer is: no.

II.

A. Appellant Did Not Bring Forth a Partial Record

Although Appellee asserts that Appellant brought forth a partial reporter’s record, such is not the case. This is not an appeal of a final

judgment that incorporates the findings of the jury in its verdict. This is an

appeal of a trial judge, based upon a very limited amount of trial testimony,

rendering a judgment that Appellant only recover $10.00. This case is more

akin to a summary judgment, where an appeal is based upon the summary

judgment evidence, and the arguments of counsel are irrelevant to whether

the trial court was correct in its ruling, based upon the summary judgment

evidence.

In the instant case, as noted in Appellant’s Brief, the trial court’s ruling was not based upon the entire record, instead it was

[b]ased upon the Court’s consideration of the verdict and the post-verdict briefing, exhibits, and arguments submitted by the parties . . . .

(Emphasis added) C.R. p. 54. As such, the only relevant record to bring forth

would be the verdict and the record that was reviewed by the trial court in

making its determination that Appellant only recover $10.00. This Appellant

did. Any additional materials would not be relevant to the appeal .

B. Appellee Apparently Concedes That it was Improper for Trial Court

to Consider Only a Partial Record

Appellee admits that “a mere 20 pages of hundreds of pages of [Bulthuis’] testimony recorded at trial . . .” were presented to the trial court by

Appellee as exhibits to post-judgment motions and briefing. Appellee’s Brief,

p. 2. These are the same exhibits and briefing that the trial court relied upon,

when it set aside the jury’s verdict. Appellee also notes, in numerous places ^[1]

in his brief, that “a mere fraction of the testimony from this multi-day trial . . .

” (Appellee’s Brief, p. 2); “a tiny fraction of the record – a mere 20 or so pages

. The trial court’s order indicates that, other than exhibits and briefing, ^[1] the only other influence on the trial judge in making his decision, was

“arguments” of counsel. C.R. p. 54. Obviously, a motion for judgment

notwithstanding the verdict should be based upon the record of the evidence,

not arguments of counsel.

of Bulthuis’s hundreds of pages of testimony” (Appellee’s Brief, p. 7); a small

part of the evidence presented at trial ( Id.) ; not having “the benefit of a

complete record of the trial testimony and evidence in this matter”

(Appellee’s Brief, p. 12); and “exhibits attached to Avilia’s JNOV motion

[consisting] simply of excerpts of trial testimony offered to highlight arguments

in the motion” (Appellee’s Brief, p. 16); would not be sufficient for this Court

(or even the trial court) to review in order to determine if there was legally

sufficient evidence to support the jury’s verdict. Appellee’s Brief, pp. 2, 7, 12

and 16.

Appellee correctly sets out the requirement for a judgment notwithstanding the verdict. In reviewing a JNOV, a trial court should conduct

a legal sufficiency analysis of the evidence—the same test a court would

apply to a no-evidence challenge. See Tanner v. Nationwide Mut. Fire Ins.

Co. , 289 S.W.3d 828, 830 (Tex. 2009); City of Keller v. Wilson , 168 S.W.3d

802, 823 (Tex. 2005). In applying the no-evidence standard, courts consider

the evidence in the light most favorable to the jury’s verdict and indulge every

reasonable inference that would support it. City of Keller , 168 S.W.3d at 822;

Tiller v. McLure , 121 S.W.3d 709, 713 (Tex. 2003). Courts will credit favorable

evidence only if a reasonable juror could, and will disregard contrary evidence

unless a reasonable juror could not. Tanner , 289 S.W.3d at 830. Appellee’s

Brief, p. 13.

Accordingly, Appellant and Appellee agree that neither the trial court nor an appellate court should review only a small portion of the record in

connection with a JNOV. However, that is exactly what the trial court did, as

can be seen from the final judgment that the trial court (or Appellee’s counsel)

drafted and ultimately signed. The appellate record, on the other hand, brings

forth everything to this Court that the trial court reviewed in making its

decision to grant a JNOV. That is all that is necessary, and appropriate, as

matters not considered by the trial court would be irrelevant to the propriety

of granting the judgment notwithstanding the verdict.

C. Conclusions

A complete appellate record, for the alleged errors of the trial court, was brought forward. The trial court failed to consider the entire record of the case

(which was heard some 16 months earlier), and erroneously based its JNOV

decision on a very limited, tiny fraction, of the record. This was error.

III .

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant DOUGLAS MICHAEL BULTHUIS prays that this Court remand this case to the trial court

with instructions that Appellant recover of and from Appellee Jose Juan (J.J.)

Avila the amount awarded in the jury’s verdict, together with prejudgement

interest, costs of Court and that this Court grant Appellant such other and

further relief to which he may be justly entitled.

Respectfully submitted, HOLE & ALVAREZ, L.L.P.

P. O. Box 720547 McAllen, Texas 78504 Telephone No.: (956) 631-2891 Telecopier No.: (956) 631-2415 E-Mail: Mail@HoleAlvarez.com By: /s/ Ronald G. Hole Ronald G. Hole State Bar No. 09834200 ATTORNEYS FOR APPELLANT CERTIFICATE OF COMPLIANCE In compliance with Tex.R.App.P. 9.4(i)(3), I, Ronald G. Hole, hereby certify that this Appellant’s Reply Brief, excluding the sections to be excluded,

contains 936 words. I have relied on the word count of the computer program

used to prepare this document, WordPerfect X3 ®

/s/ Ronald G. Hole Ronald G. Hole *11 CERTIFICATE OF SERVICE I, Ronald G. Hole, hereby certify that a true and correct copy of the above Appellant’s Reply Brief has, on this the 9th day of February 2015 ,

been served via electronic transfer through an online filing service, to the

following counsel of record:

Attorneys for Appellee Juan Jose (J.J.) Avila

Mr. R. Russell Hollenbeck

Mr. Andrew C. Nelson

Wright & Close, LLP

One Riverway, Suite 2200

Houston, Texas 77056

E-Mail: hollenbeck@wrightclose.com

E-Mail: nelson@wrigthclose.com

Mr. Francisco Rene Villarreal

Garcia & Villarreal, L.L.P.

4311 North McColl Road

McAllen, Texas 78502

E-Mail: panchov@gvlaw.net

Mr. Juan “Sonny” Palacios

Palacios & Love

2720 West Canton, Suite B

Edinburg, Texas 78539

E-Mail: palacioslove@sbcglobal.net

/s/ Ronald G. Hole Ronald G. Hole BCC:Avi-BUL\APP