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Electronically Filed
4/10/2024 7:23 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
CAUSE N0. C~2339-21-M
MARTINA CANTU IN THE DISTRICT COURT
VS. 476th JUDICIAL DISTRICT
wwwmmmw
AMALIA V. TSUJIMOTA AS TRUSTEE
0F A.V. TSUJIMOTO REVOCABLE
TRUST AND TANYA T. WOOD AS
TRUSTEE 0F A.V. TSUJIMOTO
REVOCABLE TRUST OF HIDALGO COUNTY, TEXAS
MOTION FOR CONTINUANCE ON DEFENDANTS’
PLAlNTIFF'S VERIFIED
TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT, AND
IF NOT GRANTED, RESPONSE
Under Texas Rule of Civil Procedure 166mm, a court can grant a continuance of a
summary judgment hearing if the party opposihg summary judgment can establish by affidavit or
verified motion that it has not had an adéquate time for discovery. Tenneco Inc. v. Enter, Prods.
Con 925 S.W.2d 640‘ 647 (Tex. 1996). To seek a continuance under Rule 166a( g), the affidavit or
ven’fied motion must identify the evidence sought, explain why it is .materia], and state with
particularity the diligence used to obtain the evidence. West v. SMG. 318 S.W.3d 430. 443 (Tex.
App.—-Houst0n [lst Dist] 2010. no pet); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. Appr—
Austin 2002, no net); Dozier v. AMR Corn. N0. 2—09-186-CV‘ 2010 WL 3075633 (Tex. App.~—
Fort Wofth 2010, no pet: (memo op.; 8-5-10); In re Estate ofMask. No. 04-O7-00667-CV‘ 2008
WL 4595027 (Tex. App.———San Antonio 2008, pet. denied) (memo op.; 10-1 5-08)‘ If the basis for
continuance is the need to take additional depositions, the affidavit or verified motion must also
meet the additional requirements ofTexas Rule of Civil Procedure 252. Tri~SleeI Struclures. Inc.
v. Baptist Found, 166 S.W.3d 443, 448 (Tex. ADD.———F'on Worth 2005, pet. denied); szdermmm
y.
Buehring. N0, 13-05-278~CV, 2006 WL 240517 (Tex. App.——Cmpus Christi 2006‘ peg
Electronically Filed
4/10/2024 7:23 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
giggiggflflncnm op.; 2~2-O6).
’I‘o
meet the additional requirements oprI—eziz, the affidavit 0r
verified motion must ( 1) explain the reasons for not obtaining the discovery earlier, if known. and
(2) show that the discovery cannot be obtained from any other source if the party had previously
applied for a continuance. Tex. R. Civk P. 252; see Mukahy v. Wal~Mart Slores, 1m, No. 024 0-
12-16—
ooom-cv‘ 2010 WL 51 13199 (Taxi Ammpoa Worth 2010, no p61) (memo op.;
10); Gamdermamn No‘ 13~05~278~CV, 2006 WL 240517 (memo op.).
the court should
Ifthe affidavit or verified motion meets the requirements for a continuance,
the
consider the following nonexclusive factors in deciding whether to grant the motion: (1)
materiality and the gumose of the discovegy sought, (2) whether the party exercised MM,
and oftime the case has been on file. West, 3 1 8 S.W.3d at 443; see Joe v. Two Thirtv
(3) the length
Nine Joint Venlure, 145 S.W.3d 150, 161 (Tex. 200$).
A. Evidence sought.
1. Plaintiffs need additional time to obtain the following evidence:
a. adequate written discovery responses from the Defendants;
b. adequate written discovery responses fi‘om Defendants
c. deposition of Defendant the Defendants
B. Evidence is Material to Plaintiff’s Opposition.
2. Plaintiff must establish that there was a contract for sale of the property, that Plaintiff paid
for the property, that Plaintiff made substantial improvements, and that she has equitable
title to the property
3. The evidence sought through the proposed discovery is material to Plaintiff‘s opposition to
Defendants’ motion for summary judgment.
(\J
Electronically Filed
4/10/2024 7:23 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
RESPONSE TO DEFENDANTS'
I’LAiNTIFF’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff, Maflina Cantu, Respondent herein, files this Response t0 Defendants’ Motion for
Summary Judgment and respectfully shows the Court as follows:
3. Defendants’ Motion should be denied because the evidence either, conclusively proves, or at
least establishes, a genuine issue of material fact on each essential element of Plaintiffs cause of
action. Specifically, Plaintiff shows the Court as follows:
,
Element: Fania] Performance Doctrine is an exception to the Statute ofFrauds.
Argument: Defendant argues that under the Statute of Frauds real estate transactions
must be in writing. However, there is an exception to the Statute of Fraudsi That
exception is the Partial Performance Doctrine. Under the Partial Performance
Doctrine, the Plaintiff must prove certain elements. The elements are (1) payment of
consideration; (2) possession ofthe property by the buyer; and (3) permanent and
valuable improvements by the buyer with the consent of the seller or other facts
demonstrating that the buyer would be defrauded ifthe agreement were not enforced.
Hooks V. Bridgewater, 111 Tex. 122, 229 S.W. 3d 114, 115, (1921). As to the first
element, Plaintiffhas paid $27,600x00 ofthe $58,000.00 agreed upon sales price plus
all the property taxes since she purchased the property. The amount paid exceeds the
agreed upon sales price. As to the second element, the Plaintiffhas been in
possession ofthe property since December 2010 until the present. In fact, the
Defendant attempted to evict the Plaintiff from the Property which said eviction led to
this cause. As to the third element, the Plaintiff must show it made permanent and
valuable improvements to the property. On 08/09/2021 the Plaintiff filed with the
court Plaintiffs Notice of Intent T0 Introduce Business Records Through Affidavit.
Included with the Notice was a Business Record Affidavit from Ruben Romero dba R
& R Builders wherein it details the work done to the property and the amount paid by
the Plaintiff. The total amount paid by the Plaintiff for repairs was $31,725‘00‘
Electronically Filed
4/10/2024 7:23 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
For these reasons tho Defendants Motion for Summary Judgment should be denicd‘
This Motion is supported by the pleadings filed in this case and the following
summary judgment evidence, all ofwhich is incorporated herein for all purposes:
Affidavits: Affidavit of Martina Cantu.
PRAYER: Respondent prays that the Court deny Defendants’ Motion for Summary
Judgment. Respondent additionally prays for such other relief as the Court may determine
appropriate.
Respectfully submitted,
Law Office of Jose Luis Flores
1111 W Nolana
McAllen,TX 78504
PHONE: (9S6) 682~0924
FAX: (956) 682-3838
/s/ Jose Luis Flores
Jose Luis Flores
Attorney for: Martina Cantu
Bar n0: 00786401
'
Phone: (956) 682-0924
Fax: (956) 682—3838
Email: joe@jlfloreslawfirm.com
Certificate of Service
I certify that a true copy of this document was served in accordance with Rule 21a ofthe
Texas Rules of Civil Procedure on the following on April 10, 2024:
Daniel E. Vargas by e—mail at bigdan@vargasguerrallp.com
/s/ Jose Luis Flores
Jose Luis Flores
Attorney for Martina Cantu
Preview
Electronically Filed 4/10/2024 7:23 PM Hidalgo County District Clerks Reviewed By: Victor Castro CAUSE N0. C~2339-21-M MARTINA CANTU IN THE DISTRICT COURT VS. 476th JUDICIAL DISTRICT wwwmmmw AMALIA V. TSUJIMOTA AS TRUSTEE 0F A.V. TSUJIMOTO REVOCABLE TRUST AND TANYA T. WOOD AS TRUSTEE 0F A.V. TSUJIMOTO REVOCABLE TRUST OF HIDALGO COUNTY, TEXAS MOTION FOR CONTINUANCE ON DEFENDANTS’ PLAlNTIFF'S VERIFIED TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT, AND IF NOT GRANTED, RESPONSE Under Texas Rule of Civil Procedure 166mm, a court can grant a continuance of a summary judgment hearing if the party opposihg summary judgment can establish by affidavit or verified motion that it has not had an adéquate time for discovery. Tenneco Inc. v. Enter, Prods. Con 925 S.W.2d 640‘ 647 (Tex. 1996). To seek a continuance under Rule 166a( g), the affidavit or ven’fied motion must identify the evidence sought, explain why it is .materia], and state with particularity the diligence used to obtain the evidence. West v. SMG. 318 S.W.3d 430. 443 (Tex. App.—-Houst0n [lst Dist] 2010. no pet); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. Appr— Austin 2002, no net); Dozier v. AMR Corn. N0. 2—09-186-CV‘ 2010 WL 3075633 (Tex. App.~— Fort Wofth 2010, no pet: (memo op.; 8-5-10); In re Estate ofMask. No. 04-O7-00667-CV‘ 2008 WL 4595027 (Tex. App.———San Antonio 2008, pet. denied) (memo op.; 10-1 5-08)‘ If the basis for continuance is the need to take additional depositions, the affidavit or verified motion must also meet the additional requirements ofTexas Rule of Civil Procedure 252. Tri~SleeI Struclures. Inc. v. Baptist Found, 166 S.W.3d 443, 448 (Tex. ADD.———F'on Worth 2005, pet. denied); szdermmm y. Buehring. N0, 13-05-278~CV, 2006 WL 240517 (Tex. App.——Cmpus Christi 2006‘ peg Electronically Filed 4/10/2024 7:23 PM Hidalgo County District Clerks Reviewed By: Victor Castro giggiggflflncnm op.; 2~2-O6). ’I‘o meet the additional requirements oprI—eziz, the affidavit 0r verified motion must ( 1) explain the reasons for not obtaining the discovery earlier, if known. and (2) show that the discovery cannot be obtained from any other source if the party had previously applied for a continuance. Tex. R. Civk P. 252; see Mukahy v. Wal~Mart Slores, 1m, No. 024 0- 12-16— ooom-cv‘ 2010 WL 51 13199 (Taxi Ammpoa Worth 2010, no p61) (memo op.; 10); Gamdermamn No‘ 13~05~278~CV, 2006 WL 240517 (memo op.). the court should Ifthe affidavit or verified motion meets the requirements for a continuance, the consider the following nonexclusive factors in deciding whether to grant the motion: (1) materiality and the gumose of the discovegy sought, (2) whether the party exercised MM, and oftime the case has been on file. West, 3 1 8 S.W.3d at 443; see Joe v. Two Thirtv (3) the length Nine Joint Venlure, 145 S.W.3d 150, 161 (Tex. 200$). A. Evidence sought. 1. Plaintiffs need additional time to obtain the following evidence: a. adequate written discovery responses from the Defendants; b. adequate written discovery responses fi‘om Defendants c. deposition of Defendant the Defendants B. Evidence is Material to Plaintiff’s Opposition. 2. Plaintiff must establish that there was a contract for sale of the property, that Plaintiff paid for the property, that Plaintiff made substantial improvements, and that she has equitable title to the property 3. The evidence sought through the proposed discovery is material to Plaintiff‘s opposition to Defendants’ motion for summary judgment. (\J Electronically Filed 4/10/2024 7:23 PM Hidalgo County District Clerks Reviewed By: Victor Castro RESPONSE TO DEFENDANTS' I’LAiNTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Maflina Cantu, Respondent herein, files this Response t0 Defendants’ Motion for Summary Judgment and respectfully shows the Court as follows: 3. Defendants’ Motion should be denied because the evidence either, conclusively proves, or at least establishes, a genuine issue of material fact on each essential element of Plaintiffs cause of action. Specifically, Plaintiff shows the Court as follows: , Element: Fania] Performance Doctrine is an exception to the Statute ofFrauds. Argument: Defendant argues that under the Statute of Frauds real estate transactions must be in writing. However, there is an exception to the Statute of Fraudsi That exception is the Partial Performance Doctrine. Under the Partial Performance Doctrine, the Plaintiff must prove certain elements. The elements are (1) payment of consideration; (2) possession ofthe property by the buyer; and (3) permanent and valuable improvements by the buyer with the consent of the seller or other facts demonstrating that the buyer would be defrauded ifthe agreement were not enforced. Hooks V. Bridgewater, 111 Tex. 122, 229 S.W. 3d 114, 115, (1921). As to the first element, Plaintiffhas paid $27,600x00 ofthe $58,000.00 agreed upon sales price plus all the property taxes since she purchased the property. The amount paid exceeds the agreed upon sales price. As to the second element, the Plaintiffhas been in possession ofthe property since December 2010 until the present. In fact, the Defendant attempted to evict the Plaintiff from the Property which said eviction led to this cause. As to the third element, the Plaintiff must show it made permanent and valuable improvements to the property. On 08/09/2021 the Plaintiff filed with the court Plaintiffs Notice of Intent T0 Introduce Business Records Through Affidavit. Included with the Notice was a Business Record Affidavit from Ruben Romero dba R & R Builders wherein it details the work done to the property and the amount paid by the Plaintiff. The total amount paid by the Plaintiff for repairs was $31,725‘00‘ Electronically Filed 4/10/2024 7:23 PM Hidalgo County District Clerks Reviewed By: Victor Castro For these reasons tho Defendants Motion for Summary Judgment should be denicd‘ This Motion is supported by the pleadings filed in this case and the following summary judgment evidence, all ofwhich is incorporated herein for all purposes: Affidavits: Affidavit of Martina Cantu. PRAYER: Respondent prays that the Court deny Defendants’ Motion for Summary Judgment. Respondent additionally prays for such other relief as the Court may determine appropriate. Respectfully submitted, Law Office of Jose Luis Flores 1111 W Nolana McAllen,TX 78504 PHONE: (9S6) 682~0924 FAX: (956) 682-3838 /s/ Jose Luis Flores Jose Luis Flores Attorney for: Martina Cantu Bar n0: 00786401 ' Phone: (956) 682-0924 Fax: (956) 682—3838 Email: joe@jlfloreslawfirm.com Certificate of Service I certify that a true copy of this document was served in accordance with Rule 21a ofthe Texas Rules of Civil Procedure on the following on April 10, 2024: Daniel E. Vargas by e—mail at bigdan@vargasguerrallp.com /s/ Jose Luis Flores Jose Luis Flores Attorney for Martina Cantu