Mary Louise Serafine v. Alexander Blunt Ashley Blunt Scott Lockhart Austin Drainage and Foundation, LLC D/B/A Austin Drainage and Landscape Development Viking Fence Company, Ltd. And Viking GP, LLC ( 2016 )

ACCEPTED
03-16-00131-CV
11039488
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/8/2016 1:16:05 PM
JEFFREY D. KYLE
CLERK
NO. 03-16-00131-CV
_______________________________________________
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT OF TEXAS6/8/2016 1:16:05 PM
AT AUSTIN JEFFREY D. KYLE
_______________________________________________ Clerk
Mary Louise Serafine,
Appellant
v.
Alexander Blunt, Ashley Blunt;
Scott Lockhart, Austin Drainage and Foundation, LLC
D/B/A Austin Drainage and Landscape Development;
Viking Fence Company, Ltd.; and Viking GP, LLC,
Appellees.
RESPONSE BY APPELLEES ALEXANDER AND ASHLEY BLUNT
TO APPELLANT’S MOTION FOR IMMEDIATE STAY,
MOTION TO COMPEL, AND
REQUEST FOR EXPEDITED RELIEF
AND CROSS-MOTION BY APPELLEES ALEXANDER AND
ASHLEY BLUNT TO CORRECT INACCURACIES IN THE
REPORTER’S RECORD
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellees Alexander and Ashley Blunt (“the Blunts”) disagree in part
and agree in part with the relief requested by Appellant Serafine. As an
initial matter, the Blunts disagree that this is an emergency matter
necessitating a ruling sooner than 10 days from the date Serafine’s motion
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was filed. Beyond that, the Blunts (1) disagree that a “reversal and
remand” of the trial court’s order refusing Serafine’s Amended Formal Bill of
Exceptions is appropriate but agree to a short stay of the appellate
proceedings to allow the trial court to conduct a hearing and make applicable
rulings on this matter prior to appellate briefing by the parties; (2) agree
that it is appropriate to include in the clerk’s record a copy of the alleged
October 13, 2015, order of the trial court if that order exists; and (3)
disagree that this Court should order the trial court to include Serafine’s
Exhibit 2A in the reporter’s record.
The Blunts also file a cross-motion seeking corrections to Volumes 7
and 16 of the reporter’s record. All Appellees agree with the relief requested
(as specified below) but Serafine does not. In accordance with Texas Rule
of Appellate Procedure 34.6(e)(2)-(3), this Court may either order the court
reporter to make the corrections and recertify the record, or submit the
matter to the trial court for resolution. The latter could be done in
connection with the hearing addressed above. The $10.00 filing fee has
been submitted in connection with this cross-motion.
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I. RESPONSE TO SERAFINE’S MOTION
A. Emergency Relief is Not Warranted:
Serafine requests that the Court rule on her Motion sooner than the ten
days otherwise required. See Motion, pg.2. Such relief is not warranted
here.
Texas Rule of Appellate Procedure 10.3(a) provides three instances
allowing the Court to grant relief faster than 10 days: (1) certain motions for
extension, (2) unopposed motions, and (3) emergency situations.
Serafine’s motion does not satisfy any of these.
Serafine has failed to demonstrate any “emergency” circumstances or
any harm that she will suffer in the absence of immediate relief. To the
contrary, she recognizes that the supplemental record deadlines have not yet
expired, and her Appellant’s brief deadline has not even begun to run. The
Court should allow a sufficient time for all parties to respond and for the
Court to consider their arguments before ruling.
B. Serafine’s Amended Formal Bill of Exceptions: A Ruling on
the Merits of the Trial Court’s Action is Not Appropriate but
the Blunts Agree to a Temporary Stay.
Serafine claims that the trial court “committed reversible error” by
signing a document that Serafine previously prepared and submitted for
entry. The document is titled “Judge’s Findings on Bill of Exception.” See
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Motion, pg. 10 & Ex. 5. In it, the trial court checked a line that Serafine had
provided as an option, reading “The Court declines to approve the bill,”
referring to the Amended Formal Bill of Exceptions filed by Serafine on May
6, 2016.1 Serafine asks this Court to “reverse” that “order” and “remand”
with instructions for the trial court to grant her Formal Bill of Exceptions or
to “comply” with Texas Rule of Appellate Procedure 33.2(c). See Motion,
pgs. 5, 19.
It is not appropriate for Serafine to request a preemptive ruling on the
merits of the trial court’s action via a pre-submission motion to this Court.
The appropriate avenue for relief to correct an alleged error by the trial court
is an appellant’s brief on the merits. 2 Thus, a “reversal and remand” is
premature at this juncture. See Tex. R. App. P. 43.1. Moreover, even if the
merits were considered at this time, the Blunts disagree that the trial court
committed reversible error by entering this “finding” as requested by
Serafine.
That said, the Blunts will agree to a temporary stay of the appeal so that
a hearing in the trial court may be conducted on Serafine’s Amended Formal
1 The court crossed out the typed word “refuses” and replaced it with “declines.”
2 Serafine also raises the possibility of mandamus relief. See Motion, pg. 4. The
Blunts express no opinion at this time about whether that would be an appropriate
remedy. The Blunts reserve their right to respond on the merits if Serafine should file a
petition for writ of mandamus in the future.
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Bill of Exception and related matters. Although the Blunts disagree with the
relief Serafine ultimately requests via her Amended Bill, and further contend
that Serafine has not followed proper procedure in this Court or the trial
court, the Blunts believe it will serve the interests of judicial economy to
temporarily stay the appeal and allow for a hearing now, prior to briefing on
the merits by the parties.
For these reasons, the Blunts respectfully pray that the Court deny
Serafine’s motion to the extent it requests a ruling on the merits or any order
instructing the trial court about how to rule on Serafine’s Amended Formal
Bill of Exceptions, and grant Serafine’s motion to the extent is seeks a
temporary stay of the appeal. The Blunts suggest that the stay be granted
for 45 days to allow for conclusion of the applicable proceedings, with the
requirement that Serafine file a status report and motion to continue the stay
if the procedures are not complete by that time.
C. Missing Order: If it Exists, it May be Included.
Serafine claims that on the first day of trial (October 13, 2015), the trial
court hand-circulated to counsel a copy of an order ruling on the parties’
motions in limine and other evidentiary matters but that a copy of this
October 13 order was never filed in the record. See Motion, pg. 12-13.
Serafine asks this Court to order the trial court clerk to include the order in
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the record. Id., pg. 27.
To the extent the October 13, 2015, order actually exists, the Blunts
have no objection to it being included in the Clerk’s Record. This Court may
order the trial court clerk to prepare, certify, and file in this Court a
supplemental Clerk’s Record containing the omitted item if it exists. Tex.
R. App. P. 33.5(c)(1).
D. Exhibit 2A: This Court Should Not Order it to be Included
in the Record.
Serafine’s final request is that this Court order the court reporter to
include a copy of Serafine’s Exhibit 2A in the record. See Motion, pg. 28.
The Blunts oppose such relief because the face of the record demonstrates
that Exhibit 2A was properly excluded by the trial court. In any event, her
request overlaps with relief sought in her Amended Formal Bill of Exceptions
in the trial court.
At trial, Serafine’s counsel plainly stated on the record that his offer to
admit Exhibit 2A was withdrawn and that he understood it was not admitted
into evidence. (9.RR.134). Serafine made no offer of proof to have a copy
of this excluded exhibit included in the record for appeal. The trial court
even invited a specific offer of proof to be made but Serafine failed to do so
in regard to your Exhibit 2A. (10.RR.13-15). On this record, there is no
basis to order the court reporter to include Exhibit 2A in the record.
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In any event, Serafine seeks inclusion of this document as part of her
Amended Formal Bill of Exceptions. See Motion, Exhibit 1, pg. 5. As
such, the trial court can rule on this issue at a hearing under Rule 33.2, as
addressed above.3 There is no need for this Court to make a preemptive
ruling or instruct the trial court how it should rule on this matter at the
appropriate time. The Blunts respectfully request that this Court deny this
portion of Serafine’s motion.
II. BLUNTS’ CROSS MOTION
The Reporter’s Record contains seven inaccuracies in need of
correction. These inaccuracies appear in Volume 16, which is the exhibit
volume to the September 25, 2015, hearing on Serafine’s Motion for
Sanctions, the transcript of which is contained in Volume 7.
The inaccuracies with the exhibits in Volume 16 are apparent from the
face of the record in Volume 7. The Blunts seek correction of Volume 16 (to
the actual exhibits and the exhibit index) and Volume 7 (the exhibit index)
to accurately reflect what transpired at the hearing, as follows:
 Counter-Plaintiff’s Exhibit 1 (Serafine’s Deposition Notice)
was excluded from evidence. (See 7.RR.101-102). However,
the court reporter mistakenly included a copy of it in the record
(without noting it on the exhibit index at all). (See 7.RR.4;
3 Alternatively, if the trial court’s “finding” that the Amended Bill should be declined
were considered a “ruling,” then this is a matter to address in Appellant’s Brief on the
merits.
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16.RR.3, 5-6). The record should be corrected to remove the
copy of Counter-Plaintiff’s Exhibit 1 from Volume 16.
 Plaintiff’s Exhibit 2 (2/4/12 hearing transcript with exhibits)
and Exhibit 3 (excerpts from Alexander Blunt’s deposition)
were excluded from evidence and allowed in the record only for
purposes of an informal bill of exceptions (aka, offer of proof).
(See 7.RR.9-10, 19-21, 93-95). However, the exhibit index does
not reflect Exhibit 3 at all, and does not qualify that Exhibits 2
and 3 were included in the record only as part of the informal bill
of exceptions. (See 7.RR.4; 16.RR.3). These inaccuracies
should be corrected by adding Exhibit 3 to the exhibit index, and
adding the qualifying phrase “(Bill of Exceptions)” after both
Exhibits 2 and 3 (as the court reporter did for Exhibits 7-12).
 Plaintiff’s Exhibit 6 (attorney’s fee records) was excluded
from evidence and was not included part of Serafine’s informal
bill of exceptions. (See 7.RR.28-31, 93-96). However, the
court reporter incorrectly included a copy of Exhibit 6 in the
record. (See 16.RR.89-129). This should be corrected by
removing Exhibit 6 from Volume 16 altogether.
 Plaintiff’s Exhibit 7 (attorney’s fee summary) and Exhibit 9
(log of hours for Ray Bass) were excluded from evidence and
were not included as part of Serafine’s informal bill of exceptions.
(See 7.RR,31-32, 93-96). However, the court reporter
incorrectly included copies of Exhibits 7 and 9 in the record, and
listed them as part of Serafine’s “Bill of Exceptions.” (See
7.RR.4; 16.RR.3, 130-131, 148-154). This should be corrected by
removing Exhibits 7 and 9 from Volume 16 altogether, and
removing the designation of “Bill of Exceptions” from the exhibit
index.
 Plaintiff’s Exhibit 8 (invoice for services) was admitted into
evidence. (See 7.RR.43). However, the court reporter
inaccurately described it in the exhibit index as being part of the
bill of exceptions. (See 7.RR.4; 16.RR.3). This should be
corrected by removing that qualification from the exhibit index.
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Counsel for the Blunts emailed all parties to confer about these
inaccuracies and seek their agreement to correct them via a joint motion to
this Court without the need to recertify the record. See Tex. R. App. P.
34.6(e)(1). Counsel for all Appellees (Scott Lockhart; Austin Drainage and
Foundation, LLC d/b/a Austin Drainage and Landscape Development;
Viking Fence Company, Ltd.; and Viking GP, LLC) agreed to the requested
corrections. After two weeks, pro se Appellant Serafine ultimately
responded that she did not agree to the corrections and was “not unopposed”
to the relief requested in the Blunts’ cross-motion.
Thus, the Blunts respectfully request that this Court either (1) order the
court reporter to make the corrections noted above and recertify the record,
or (2) submit the matter to the trial court for resolution. See Tex. R. App. P.
34.6(e)(2)-(3). If this Court does the latter and decides to stay the appeal
for a hearing as addressed above, both matters could be addressed
simultaneously.
III. PRAYER
The Blunts respectfully pray in response to Serafine’s Motion that it be
denied in part and granted in part. As addressed above, this is not an
appropriate juncture for the Court to make any ruling on the merits of any
action by the trial court. Thus, Serafine’s premature requests for such
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rulings should be denied. However, the Blunts will agree to stay the appeal
for a short period to allow for a hearing in the trial court on these and related
matters.
The Blunts further pray that the Court grant their Cross-Motion in full
and either order the court reporter to correct Volumes 7 and 16 of the
reporter’s record, or submit this matter to the trial court for resolution.
Respectfully submitted,
MARTENS, TODD, LEONARD, TAYLOR & AHLRICH
By: /s/ Amanda G. Taylor
Amanda Taylor
ataylor@textaxlaw.com
State Bar No. 24045921
301 Congress Ave., Suite 1950
Austin, Texas 78701
Telephone: (512) 542-9898
ATTORNEY FOR APPELLEES ALEXANDER
AND ASHLEY BLUNT
CERTIFICATE OF CONFERENCE
As required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify
that counsel for Appellant has conferred with all counsel listed below about
the merits of the Blunts’ Cross-Motion. Counsel for all Appellees agree to
the corrections of the reporter’s record sought by the Blunts. Appellant
Serafine is “not unopposed” to the relief requested.
/s/ Amanda G. Taylor
Amanda G. Taylor
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Response
and Cross-Motion has been electronically filed and served on all counsel
below on June 8, 2016. See Tex. R. App. P. 9.2(c)(1), 9.5(b)(1).
Mary Louise Serafine, Esq.
P.O. Box 4342
Austin, Texas 78765
mlserafine@gmail.com
Appellant, Pro Se
Ronald M. Raydon
LAW OFFICE OF RONALD MAX RAYDON
1718 Fry Road, Suite 450
Houston, Texas 77084
ron@raydonlaw.com
Counsel for Appellees Scott Lockhart and
Austin Drainage & Foundation, LLC
Sara B. Churchin
Wade C. Crosnoe
THOMPSON COE COUSINS & IRONS, LLP
701 Brazos Street, Suite 1500
Austin, Texas 78701
schurchin@thompsoncoe.com
wcrosnoe@thompsoncoe.com
Counsel for Appellees Viking Fence
Company, Ltd. and Viking GP, LLC
/s/ Amanda G. Taylor
Amanda G. Taylor
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