Preview
Electronically Submitted
7/27/2021 5:04 PM
Hidalgo County Clerk
Accepted by: Jezema Jaramillo
NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.
No. CL-18-5173 -J
EDUARDO SILVA § IN THE COUNTY COURT
Plaintiff §
§
V. § AT LAW NUMBER TEN (10)
§
SONIA RODRIGUEZ and §
JUAN RODRIGUEZ §
Defendants § HIDALGO COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES EDUARDO SILVA, Plaintiff in the above styled and numbered cause,
and files this his RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,
and would respectfully show unto the Court as follows:
This is simple case which got off on the wrong foot.
EDUARDO SILVA (hereinafter referred to as “SILVA”) and SONIA RODRIGUEZ are
siblings. SONIA RODRIGUEZ went to SILVA and said that her house was going to be
foreclosed on, and that she needed money. Not wishing to see his sister and her husband
homeless and living on the street, SILVA agreed to loan SONIA RODRIGUEZ and JUAN
RODRIGUEZ (hereinafter collectively referred to as “RODRIGUEZ”) $19,000.00.
RODRIGUEZ represented that they would repay when their financial circumstances permitted.
Exhibit A.
Unfortunately, the care which would have been taken for a loan by a bank was not taken
in documenting this transaction. Because of the family relationship involved, a formal
promissory note was not executed. SILVA merely relied upon RODRIGUEZ’s promise to
repay. Exhibit A.
Electronically Submitted
7/27/2021 5:04 PM
Hidalgo County Clerk
Accepted by: Jezema Jaramillo
RODRIGUEZ accepted the $19,000.00 and paid it towards their house. Exhibit B, pp.
23, They were not forced to live on the street.
However, at the time RODRIGUEZ was representing they would repay SILVA, they had
no intention of doing. They testified at their deposition they have no intention of paying. They
have also denied that it was a loan, but cannot explain how to exactly classify the transaction.
It was not until 2017 and 2018 when RODRIGUEZ financial condition became better
that SILVA demanded repayment. RODRIGUEZ did not then claim the money was a gift;
instead, RODRIGUEZ claimed their financial condition had not improved. Exhibit B, p. 39.
RODIGUEZ is unable to classify the transaction. Exhibit B, pp. 22, 23.
It was at this point that SILVA realized that he needed to take legal action. Accordingly,
he filed this lawsuit.
Unfortunately, believing an enforceable contract had been entered, SILVA filed this
matter as a breach of contract/promissory estoppel/quantum meruit case. It was after
RODRIGUEZ filed their motion for summary judgment that SILVA realized that the breach of
contract/promissory estoppel/quantum meruit causes of action causes do not work because he
relied on family and needed to get everything in writing. As a result of such realization, SILVA
has amended his pleadings, seeking recovery for fraud and money had and received. He is now
seeking a constructive trust on RODRIGUEZ house because they used SILVA’s money to pay
its mortgage. And he has clearly involved the discovery rule.
Motions for summary judgment are strictly construed, both with regard to procedural and
substantive law. International Insurance Co. v. Herman G. West, Inc., 649 S.W.2d 824, 825
(Tex. App.--Fort Worth 1983, no writ). The purpose of a summary judgment is not to deprive a
litigant of his right to a trial by jury, but to eliminate patently unmeritorious claims and untenable
Electronically Submitted
7/27/2021 5:04 PM
Hidalgo County Clerk
Accepted by: Jezema Jaramillo
defenses. Gulbekian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952); Newberry v. Tarvin,
594 S.W.2d 204, 206 (Tex. Civ. App.--Corpus Christi 1980, no writ).
The Supreme Court has crystallized the standard for adjudication of summary judgments
as follows:
1) the movant has the burden of showing that no genuine issue
of material fact exists and that it is entitled to judgment as a
matter of law;
2) in deciding whether a disputed material fact issue exists
precluding summary judgment, courts must take as true
evidence favorable to the nonmovant; and
3) courts must also indulge every reasonable inference in the
nonmovant's favor and resolve any doubts in its favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 49 (Tex. 1985); accord, Ehrig v.
Germania Farm Mutual Ins. Ass'n, 84 S.W.3d 320, 327 (Tex. App.--Corpus Christi 2002, no
pet.); Vela v. Rocha, 52 S.W.3d 398, 402 (Tex. App.--Corpus Christi 2001, no pet).
A litigant is freely permitted to amend his pleadings. Tex. R. Civ. P. 63. Accordingly,
when the defendant has filed a motion for summary judgment, the plaintiff is permitted to amend
his pleading. SILVA has done exactly this in this case, deleting his prior causes of action, and
asserting causes of action for money had and received and fraud.
However, such amendment of pleading rings the death knell for the defendant’s motion
for summary judgment. “Motions for summary judgment stand or fall on the grounds
specifically set forth in the motions.” 410/West Ave. Ltd. v. Texas Trust Savings Bank, F.S.B.,
810 S.W.2d 422, 424 (Tex. App.--San Antonio 1991, no writ). Thus, when the plaintiff amends
his pleadings, asserting new causes of action, the defendant is not entitled to summary judgment
because the new causes of action are not included in the motion. Mafrige v. Ross, 866 S.W.2d
590, 591 (Tex. 1993); Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983).
Electronically Submitted
7/27/2021 5:04 PM
Hidalgo County Clerk
Accepted by: Jezema Jaramillo
And so it is in the case at bar; in their motion for summary judgment, RODRIGUEZs have failed
to address SILVA’s causes of action for money had and received and for fraud.
SILVA would further point out that summary judgment on limitations is improper.
SILVA does not believe that the statute of limitations ran, because of the unique circumstances
of this case. However, to the extent this Court disagrees, SILVA was invoked the discovery rule.
In order to obtain a summary judgment on limitations, a defendant is required not only to prove
when the cause of action accrued, but also when the defendant should have discovered. Burns v.
Thomas, 786 S.W.2d 266, 267 (Tex. 1990). RORIGUEZ has failed to do so herein.
In any event, this Court is required to deny the motion for summary judgment. In the
case at bar, SILVA has presented sufficient evidence to support his causes of action. As shown
by the attached affidavit and deposition testimony, RODRIGUEZ received the $19,000.00
RODRIGUEZ cannot explain how or why she received the money, Exhibit B, pp. 22, 23, but
admit they never intended to pay SILVA back. Exhibit B, pp. 32, 34. SILVA has testified that
RODRIGUEZ represented they would pay him back. Thus, such conduct establishes SILVA’s
causes of action.
As summary judgment evidence, SILVA attaches the following summary judgment
evidence:
Exhibit A--Affidavit of Plaintiff; and
Exhibit B--Deposition of Sonia Rodriguez.
Such evidence clearly supports denial of Defendant’s motion.
Summary judgments cannot be used to vindicate a judge’s view of the evidence.
Wasserman, Mixed Signals on Summary Judgment, 2014 MICH. ST. L. REV. 1331, 1332 & n. 4
(2014). Regardless of what this Court believes, SILVA has presented sufficient evidence to
Electronically Submitted
7/27/2021 5:04 PM
Hidalgo County Clerk
Accepted by: Jezema Jaramillo
support his claims. Accordingly, summary judgment should be denied.
WHEREFORE, PREMISES CONSIDERED, EDUARDO SILVA, Plaintiff in the above
styled and numbered cause, respectfully prays that Defendants’ Motion for Summary Judgment
be DENIED, and for general relief.
Respectfully submitted,
THE LAW OFFICE OF DAMIAN C. OROZCO, P.C.
1138 East Expressway 83, Suite C.
Pharr, Texas 78577
Tel: (956) 782-5447
Fax: (956) 782-5448
By: /s/ Damian C. Orozco
Damian C. Orozco
State Bar No. 24008756
E-Mail: dorozco@orozco-law.com
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I certify that on July 27, 2021, a true and correct copy of the forgoing instrument was
served on each attorney of record or party listed below by electronic mail.
Hon. Weldon G. “Beau” Nixon
Walsh, McGurk, Cordova, Nixon, PLLC
4900-B N. 10th Street
McAllen, Texas 78504
Tel: (956) 632-5013
Fax: (956) 630-5199
bnixon@wmcnlaw.com
By: /s/ Damian C. Orozco
DAMIAN C. OROZCO
Attorney for Plaintiff
Preview
Electronically Submitted 7/27/2021 5:04 PM Hidalgo County Clerk Accepted by: Jezema Jaramillo NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA. No. CL-18-5173 -J EDUARDO SILVA § IN THE COUNTY COURT Plaintiff § § V. § AT LAW NUMBER TEN (10) § SONIA RODRIGUEZ and § JUAN RODRIGUEZ § Defendants § HIDALGO COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES EDUARDO SILVA, Plaintiff in the above styled and numbered cause, and files this his RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, and would respectfully show unto the Court as follows: This is simple case which got off on the wrong foot. EDUARDO SILVA (hereinafter referred to as “SILVA”) and SONIA RODRIGUEZ are siblings. SONIA RODRIGUEZ went to SILVA and said that her house was going to be foreclosed on, and that she needed money. Not wishing to see his sister and her husband homeless and living on the street, SILVA agreed to loan SONIA RODRIGUEZ and JUAN RODRIGUEZ (hereinafter collectively referred to as “RODRIGUEZ”) $19,000.00. RODRIGUEZ represented that they would repay when their financial circumstances permitted. Exhibit A. Unfortunately, the care which would have been taken for a loan by a bank was not taken in documenting this transaction. Because of the family relationship involved, a formal promissory note was not executed. SILVA merely relied upon RODRIGUEZ’s promise to repay. Exhibit A. Electronically Submitted 7/27/2021 5:04 PM Hidalgo County Clerk Accepted by: Jezema Jaramillo RODRIGUEZ accepted the $19,000.00 and paid it towards their house. Exhibit B, pp. 23, They were not forced to live on the street. However, at the time RODRIGUEZ was representing they would repay SILVA, they had no intention of doing. They testified at their deposition they have no intention of paying. They have also denied that it was a loan, but cannot explain how to exactly classify the transaction. It was not until 2017 and 2018 when RODRIGUEZ financial condition became better that SILVA demanded repayment. RODRIGUEZ did not then claim the money was a gift; instead, RODRIGUEZ claimed their financial condition had not improved. Exhibit B, p. 39. RODIGUEZ is unable to classify the transaction. Exhibit B, pp. 22, 23. It was at this point that SILVA realized that he needed to take legal action. Accordingly, he filed this lawsuit. Unfortunately, believing an enforceable contract had been entered, SILVA filed this matter as a breach of contract/promissory estoppel/quantum meruit case. It was after RODRIGUEZ filed their motion for summary judgment that SILVA realized that the breach of contract/promissory estoppel/quantum meruit causes of action causes do not work because he relied on family and needed to get everything in writing. As a result of such realization, SILVA has amended his pleadings, seeking recovery for fraud and money had and received. He is now seeking a constructive trust on RODRIGUEZ house because they used SILVA’s money to pay its mortgage. And he has clearly involved the discovery rule. Motions for summary judgment are strictly construed, both with regard to procedural and substantive law. International Insurance Co. v. Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex. App.--Fort Worth 1983, no writ). The purpose of a summary judgment is not to deprive a litigant of his right to a trial by jury, but to eliminate patently unmeritorious claims and untenable Electronically Submitted 7/27/2021 5:04 PM Hidalgo County Clerk Accepted by: Jezema Jaramillo defenses. Gulbekian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952); Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex. Civ. App.--Corpus Christi 1980, no writ). The Supreme Court has crystallized the standard for adjudication of summary judgments as follows: 1) the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; 2) in deciding whether a disputed material fact issue exists precluding summary judgment, courts must take as true evidence favorable to the nonmovant; and 3) courts must also indulge every reasonable inference in the nonmovant's favor and resolve any doubts in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 49 (Tex. 1985); accord, Ehrig v. Germania Farm Mutual Ins. Ass'n, 84 S.W.3d 320, 327 (Tex. App.--Corpus Christi 2002, no pet.); Vela v. Rocha, 52 S.W.3d 398, 402 (Tex. App.--Corpus Christi 2001, no pet). A litigant is freely permitted to amend his pleadings. Tex. R. Civ. P. 63. Accordingly, when the defendant has filed a motion for summary judgment, the plaintiff is permitted to amend his pleading. SILVA has done exactly this in this case, deleting his prior causes of action, and asserting causes of action for money had and received and fraud. However, such amendment of pleading rings the death knell for the defendant’s motion for summary judgment. “Motions for summary judgment stand or fall on the grounds specifically set forth in the motions.” 410/West Ave. Ltd. v. Texas Trust Savings Bank, F.S.B., 810 S.W.2d 422, 424 (Tex. App.--San Antonio 1991, no writ). Thus, when the plaintiff amends his pleadings, asserting new causes of action, the defendant is not entitled to summary judgment because the new causes of action are not included in the motion. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993); Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). Electronically Submitted 7/27/2021 5:04 PM Hidalgo County Clerk Accepted by: Jezema Jaramillo And so it is in the case at bar; in their motion for summary judgment, RODRIGUEZs have failed to address SILVA’s causes of action for money had and received and for fraud. SILVA would further point out that summary judgment on limitations is improper. SILVA does not believe that the statute of limitations ran, because of the unique circumstances of this case. However, to the extent this Court disagrees, SILVA was invoked the discovery rule. In order to obtain a summary judgment on limitations, a defendant is required not only to prove when the cause of action accrued, but also when the defendant should have discovered. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990). RORIGUEZ has failed to do so herein. In any event, this Court is required to deny the motion for summary judgment. In the case at bar, SILVA has presented sufficient evidence to support his causes of action. As shown by the attached affidavit and deposition testimony, RODRIGUEZ received the $19,000.00 RODRIGUEZ cannot explain how or why she received the money, Exhibit B, pp. 22, 23, but admit they never intended to pay SILVA back. Exhibit B, pp. 32, 34. SILVA has testified that RODRIGUEZ represented they would pay him back. Thus, such conduct establishes SILVA’s causes of action. As summary judgment evidence, SILVA attaches the following summary judgment evidence: Exhibit A--Affidavit of Plaintiff; and Exhibit B--Deposition of Sonia Rodriguez. Such evidence clearly supports denial of Defendant’s motion. Summary judgments cannot be used to vindicate a judge’s view of the evidence. Wasserman, Mixed Signals on Summary Judgment, 2014 MICH. ST. L. REV. 1331, 1332 & n. 4 (2014). Regardless of what this Court believes, SILVA has presented sufficient evidence to Electronically Submitted 7/27/2021 5:04 PM Hidalgo County Clerk Accepted by: Jezema Jaramillo support his claims. Accordingly, summary judgment should be denied. WHEREFORE, PREMISES CONSIDERED, EDUARDO SILVA, Plaintiff in the above styled and numbered cause, respectfully prays that Defendants’ Motion for Summary Judgment be DENIED, and for general relief. Respectfully submitted, THE LAW OFFICE OF DAMIAN C. OROZCO, P.C. 1138 East Expressway 83, Suite C. Pharr, Texas 78577 Tel: (956) 782-5447 Fax: (956) 782-5448 By: /s/ Damian C. Orozco Damian C. Orozco State Bar No. 24008756 E-Mail: dorozco@orozco-law.com Attorney for Plaintiff CERTIFICATE OF SERVICE I certify that on July 27, 2021, a true and correct copy of the forgoing instrument was served on each attorney of record or party listed below by electronic mail. Hon. Weldon G. “Beau” Nixon Walsh, McGurk, Cordova, Nixon, PLLC 4900-B N. 10th Street McAllen, Texas 78504 Tel: (956) 632-5013 Fax: (956) 630-5199 bnixon@wmcnlaw.com By: /s/ Damian C. Orozco DAMIAN C. OROZCO Attorney for Plaintiff