Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/4/2015 5:06:26 PM JEFFREY D. KYLE Clerk No. 03-14-00463-CV THIRD COURT OF APPEALS 12/4/2015 5:06:26 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00463-CV *1 ACCEPTED [8103727] CLERK DON & CAROL TITEL, § IN THE THIRD
Appellants
§ COURT OF APPEALS, v.
§ TEXAS MORRIS & LISA MELCHOR,
Appellees §
MOTION FOR REHEARING
Comes now Appellants, by and through counsel, to move the Court to
reconsider its opinion rendered in this case on Nov. 18, 2015. As grounds therefor,
Counsel would show:
1. Misapprehension of Facts in the Summary Judgment Proofs
In its opinion, the Court relied upon to evidentiary points in reaching its decision.
Specifically, these involved the lack of summary judgment evidence on two points:
A. No right of Control of Occupiers.
At page 3 of its opinion, the Court states, “[A]ppellants cite no evidence in
the record demonstrating any right of appellees to control Jeremy and Edwards’s
care of the Melchor Property or any exercise of actual control by them over the
care of the property.” Appellants respectfully direct attention to the following
portions of Appellants’ brief and reply brief where such evidence was cited:
1) Footnote 11 (Jeremy allowed to live on property at Appellees’ pleasure)
2) Footnote 14 (Jeremy could be kicked off property at any time)
3) Footnote 15 (Appellees’ intent was to fix up home for eventual resale)
4) Footnote 16 (Appellees’ intent was to provide a good home for
grandchildren)
5) Footnotes 27 & 28 (controlled electric service for the first year)
6) Footnotes 24 & 25 (paid contractors, controlled repairs and new
construction)
7) Footnote 33 (Appellee Lisa Melchor was present on the property for
months)
8) Footnote 26 (Appellees’ stored equipment for their business on the
property)
B. No Agency.
The Court’s opinion cites F.F.P. Operating Partners, L.P. v. Duenez , 237
S.W.3d 680, 685 (Tex. 2007) for the proposition that an agency must be
“undertaken to further principal’s objectives.” (Opinion at p. 3). Since the
Appellees stated their son’s primary incentive for managing the property was to
provide a good home for children, it follows that he was their agent for that
purpose . This responsibility defines the scope of the agency. Thus, as regards the
safety, comfort, and support of children at least, Jeremy was the owner’s agent in
charge of the property and all persons invited thereon.
Appellants submit that the mere fact of ownership granted Appellees
absolute power over anyone using their property. That alone gave them control
over all persons and activities unless there was a lease limiting those powers. But
this was not a lease situation. While Jeremy claimed to be leasing, there was other
evidence there was no lease therefore making all persons in control of the property
mere licensees. There was no written lease, 1 and the Appellee’s insurance policies
made it clear theirs was not a tenant occupied property. The declarations page and
the definitions in the policy made a distinction between "immediate family"
occupied and "tenant occupied" properties. 2 Furthermore a separate liability policy
covering their property at the time of the fire showed it covered as an “additional
residence,” belonging to Appellees. 3
The summary judgment evidence need not be conclusive, but merely
establish more a genuine issue of fact. That Appellees retained title and a position
to assert control at any time is undisputed, and this alone should be sufficient to
create a jury question in the absence of conclusive proof of an arm’s length
landlord/tenant relationship. To give additional authority made Jeremy and his
*4 girlfriend their agents. The record is replete with proof that Appellees gave carte
blanche authority to Jeremy to do as he pleased. 4 Appellees could have exercised
control to regulate all use of the property. Choosing not to should not absolve
them of responsibility for the acts of their agents carried on there.
PRAYER WHEREFORE, Defendant prays this court reverse the summary judgment.
Respectfully submitted, Paul C. Velte IV Attorney for Appellants 109 E. Hopkins St., Ste. 204 San Marcos, TX 78666 512-353-2299 512-476-9504 FAX Email: velte@ptexans.com Bar #20541700 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of this document upon Jay Lea,
Counsel for Appellee, Naman, Howell, Smith & Lee, 8310 Capital of Texas Hwy.
North, Ste. 490, Austin, TX 78731, by facsimile transmission this date to: 512-
474-1901 or by e-service.
*5 Paul C. Velte IV CERTIFICATE OF LENGTH I hereby certify that the length of this motion is 709 words total, as shown by word
processor.
Paul C. Velte IV
[1] Joi Nelson Depo. 96 (CR 812); Jeremy Melchor Depo. 19:13-15 (SCR 466).
[2] See Germania Policy declarations page and relevant portions of the policy (CR 73-75).
[3] The relevant declaration page appears at CR 621-22).
[4] For example, Jeremy tore down a fence--being constructed by a neighbor--ostensibly for encroaching on the property line. This is clearly not the act of a mere tenant or licensee, but that of an agent acting with an owner’s authority. See , Jose Rodriguez Depo. 14:22-16:2 (CR 321- 23).