Doreen Rubio// Jamie Walsh v. Jamie Walsh Emmet Walsh Ellen Thornton, Individually Ellen Thornton, Trustee And Ellen Thornton, Trustee// Cross-Appellee, Doreen Rubio ( 2015 )

ACCEPTED
03-13-00698-CV
6662975
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/26/2015 2:10:18 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-13-00698-CV
________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS 8/26/2015 2:10:18 PM
________________________________________JEFFREY D. KYLE
Clerk
DOREEN RUBIO,
Appellant,
v.
JAMIE WALSH, ET AL.,
Appellees.
________________________________________
On appeal from the
53rd District Court of Travis County, Texas
Cause No. D-1-GN-10-004125
________________________________________
MOTION FOR REHEARING
________________________________________
Tracy J. Willi
State Bar No. 00784633
Willi Law Firm, P.C.
9600 Escarpment Blvd., Ste. 745, PMB 34
Austin, TX 78749-1983
Tel. (512) 288-3200
Fax (512) 288-3202
ATTORNEY FOR APPELLANT,
DOREEN RUBIO
TABLE OF CONTENTS
INDEX OF AUTHORITIES..................................................................................... ii
I.  UNDER THE TEXAS “FAIR NOTICE” RULE, DOREEN
PROPERLY PLEADED PAROL SALE..................................................... 1
II.  THE EVIDENCE SHOULD BE REVIEWED FOR FACTUALLY
INSUFFICIENCY AS WELL AS LEGAL INSUFFICIENCY. ............... 4
III.  SANCTIONS CANNOT BE NOT BASED UPON TRIAL
COURT’S INHERENT AUTHORITY. ...................................................... 5
IV.  CONCLUSION AND PRAYER. .................................................................. 8
CERTIFICATE OF COMPLIANCE ......................................................................... 9
CERTIFICATE OF FILING AND SERVICE .......................................................... 9
ii
INDEX OF AUTHORITIES
Cases
Boyert v. Tauber,
834 S.W.2d 60 (Tex. 1992) ............................................................................ 2
Boyles v. Kerr,
855 S.W.2d 593 (Tex. 1993) .......................................................................... 2
Cain v. Bain,
709 S.W.2d 175 (Tex. 1986) .......................................................................... 4
Cauble v. Worsham,
70 S.W. 737 (Tex. 1902) ................................................................................ 4
Cire v. Cummings,
134 S.W.3d 835 (Tex. 2004) .......................................................................... 8
Dawson v. Tumlinson,
150 Tex. 451, 242 S.W.2d 191, (1951) .......................................................... 4
Francis v. Thomas,
129 Tex. 579, 106 S.W.2d 257 (1937) ........................................................... 2
Greene v. Young,
174 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) ........... 6
Hooks v. Bridgewater,
111 Tex. 122, 229 S.W. 1114 (1921) ............................................................. 2
Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887 (Tex. 2000) ............................................................................ 1
In re Acceptance Ins. Co.,
33 S.W.3d 443 (Tex. App.—Fort Worth 2000, no pet.) ................................ 7
In re Bennett,
960 S.W.2d 35 (Tex. 1997) ....................................................................5, 6, 7
In re Park Mem’l Condo. Ass’n,
322 S.W.3d 447 (Tex. App.—Houston [14th Dist.] 2010, orig.
proceeding) ..................................................................................................... 7
iii
Kugle v. DaimlerChrysler Corp.,
88 S.W.3d 355 (Tex. App.—San Antonio 2002, pet. denied) ....................... 7
Ojeda v. Ojeda,
461 S.W.2d 487 (Tex. Civ. App.—Austin 1970, writ ref’d n.r.e.) ................ 3
Shockey v. A.F.P., Inc.,
905 S.W.2d 629 (Tex. App.—Houston [14th Dist.] 1995, no writ) ............... 7
Thompson v. Dart,
746 S.W.2d 821 (Tex. App.—San Antonio 1988, no writ) ............................ 5
Troxel v. Bishop,
201 S.W.3d 290 (Tex. App.—Dallas 2006, no pet.) ...................................... 4
Walker v. Walker,
488 S.W.2d 171 (Tex. Civ. App.—Waco 1969, writ ref’d n.r.e.) .................. 2
Zep Mfg. Co. v. Anthony,
752 S.W.2d 687 (Tex. App.—Houston [1st Dist.] 1988, no writ) ................. 6
Statutes and Rules
TEX. BUS. & COM. CODE § 26.01 .............................................................................. 2
TEX. PROP. CODE § 5.021 ........................................................................................... 2
TEX. R. CIV. P. 67 ....................................................................................................... 2
iv
APPELLANT’S MOTION FOR REHEARING
I. UNDER THE TEXAS “FAIR NOTICE” RULE, DOREEN PROPERLY
PLEADED PAROL SALE.
This Court’ opinion asserts that parol sale was not pleaded and refuses to
consider the issue. Op. at 5. However, the Plaintiff’s First Amended Original
Petition does raise the issue of parol sale. “In the alternative to adverse possession,
Plaintiff asserts that the deceased, Joan Walsh Breheny gave the Property to Plaintiff
in exchange for caring for the deceased, and with the understanding the Plaintiff
would pay the taxes and mortgage on the Property and improve the Property. The
amounts paid by Plaintiff on the mortgage, taxes, and improvements from 1993
through 2013 total in excess of $100,000.00.” CR 2103 (emphasis added). There
were no special exceptions to this pleading. This pleading is sufficient to establish
the claim that the property was given to her as a result of her payments – the very
definition of a parol sale.
Texas follows a “fair notice” standard for pleading, which looks to whether
the opposing party can ascertain from the pleading the nature and basic issues of the
controversy and what testimony will be relevant. Horizon/CMS Healthcare Corp.
v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). Doreen’s pleading discusses the nature of
the claim and that Doreen expected to rely on testimony that she paid for the house
to show that she now owns the house. When a party fails to specially except, courts
should construe the pleadings liberally in favor of the pleader. Id. at 897, citing
Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993). Moreover, “When issues not
raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings.” TEX. R.
CIV. P. 67.
Generally, a conveyance of real property must be in writing. See TEX. BUS.
& COM. CODE § 26.01; TEX. PROP. CODE § 5.021. However, the Texas Supreme
Court emphatically stated that for an oral contract to purchase realty to be
enforceable three things must occur: (1) payment of the consideration, (2) possession
by the vendee, (3) the making by the vendee of valuable and permanent
improvements upon the land with the consent of the vendor, or, without such
improvements, the presence of such facts as would make the transaction a fraud upon
the purchaser if it were not enforced. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W.
1114 (1921). These steps invoke the doctrine of partial performance and are seen as
sufficient evidence of the agreement because they provide affirmative corroboration
of the agreement by both parties to the agreement. Boyert v. Tauber, 834 S.W.2d
60, 63 (Tex. 1992); Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257, 260 (1937);
Hooks, 229 S.W. at 1117.
Payment of consideration in full is not required in order to remove a parol sale
from the operation of the statute of frauds where the purchaser has possession of the
land and has made valuable improvements thereon. Walker v. Walker, 488 S.W.2d
2
171, 173 (Tex. Civ. App.—Waco 1969, writ ref’d n.r.e.). Moreover, there is no
statute of limitations that applies to this type of action because the enforcement of a
parol sale is, in essence, a suit for the removal of cloud on title and a cause of action
for its removal is never barred while the cloud exists. Ojeda v. Ojeda, 461 S.W.2d
487, 488 (Tex. Civ. App.—Austin 1970, writ ref’d n.r.e.).
The trial court was mistaken on the law that a writing was necessary to support
a parol gift or parol sale of real property. “The law in Texas is clear about how you
– you give gifts or you contract property out. And that means there has to be a
writing.” RR III, 301. The mistake of law was compounded by counsel for Jamie
Walsh, “And when it comes to real property, we all know you’ve got to have that in
writing.” RR III, 79. Doreen, representing herself at trial, was not able to apprise
the court of the correct legal standard to apply, but the law applies nonetheless. The
facts were presented at the trial. This Court determines how to apply the law to those
facts.
The evidence supporting the parol sale of this property is undisputed. Doreen
paid over $110,000 on Joan’s mortgage of this property as consideration. Doreen
has been in continuous possession of the property since 1993. Further, Doreen made
valuable and permanent improvements to the property. The evidence is
overwhelming in support of a parol sale and the case should be rendered in favor of
Doreen on this basis.
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II. THE EVIDENCE SHOULD BE REVIEWED FOR FACTUALLY
INSUFFICIENCY AS WELL AS LEGAL INSUFFICIENCY.
In one sentence, without addressing any evidence, this Court’s opinion states
that the court has “considered and weighed all the evidence and concluded that the
district court’s implied findings are not so contrary to the overwhelming weight of
the evidence so as to be clearly wrong and unjust.” Op. at 5, citing Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986). This Court’s opinion does not address the
evidence supporting parol sale. This Court’s opinion does not address the factual
sufficiency of the evidence supporting any of Doreen’s complaints.
As an alternative to parol sale, the evidence also supported parol gift. Texas
law recognizes that a gift of realty can be made in two ways: either by deed or by
parol gift. Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.—Dallas 2006, no
pet.). The elements of a parol gift of realty are the same as those for parol sales of
realty, except there must be evidence of gift, and of course proof of consideration is
not required. Dawson v. Tumlinson, 242 S.W.2d 191, 193 (Tex. 1951); Cauble v.
Worsham, 70 S.W. 737, 738 (Tex. 1902).
The same facts that support a parol sale also support a parol gift. Jamie
testified that his mother was giving the house to him until Doreen took it over in
1993. Joan had a history of purchasing homes and giving them to her children.
When Doreen took possession of the house, she had the same deal with Joan as Jamie
previously did. To establish an oral gift of an interest in real property, a party must
4
show: (1) a gift in praesenti or a gift at the present time; (2) possession under the gift
by the donee with the donor’s consent; and (3) permanent and valuable
improvements made on the property by the donee with the donor’s knowledge or
consent or, without improvements, the existence of such facts as would make it a
fraud upon the donee not to enforce the gift. Thompson v. Dart, 746 S.W.2d 821,
825 (Tex. App.—San Antonio 1988, no writ). Jamie could not claim that the parol
gift to him was complete because he did not fulfill the third element. The only
difference between Jamie’s parol gift with Joan and Doreen’s parol gift was that
Doreen made substantial improvements to the house, thereby completing the parol
gift, whereas there was no evidence that Jamie made any improvements to the
property.
III. SANCTIONS CANNOT BE NOT BASED UPON TRIAL COURT’S
INHERENT AUTHORITY.
This Court’s opinion determines that the sanctions were issued pursuant to the
trial court’s “inherent power.” Op. at 7. Since this is the only basis upon which this
Court can justify the sanctions, it is clear that the sanctions must be reversed. While
a trial court has authority to impose sanctions based upon inherent authority, such
sanctions are not appropriate without notice and the opportunity to be heard.
This Court cites In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) as authority for
a trial court to rely upon its inherent authority to order sanctions. Op. at 7. However,
In re Bennett involved a show cause order that provided the parties with notice that
5
the court was considering the exercise of its inherent authority and an opportunity to
be heard on the matters delineated in the show cause order. Id. at 37. In this case,
the only motion for sanctions on file was Jamie Walsh’s Motion to Strike Discovery
and for Sanctions. CR233-36. The motion was exclusively based upon the assertion
of Doreen’s alleged failure to respond to discovery requests. Id. There was no
mention in that motion of invoking the trial court’s inherent authority to sanction.
Id. There was no mention in that motion of any alleged failure to appear at scheduled
hearings, as apparently relied upon in this Court’s opinion. Id.; Op. at 7. The
response to the motion asserts, with attached evidence demonstrating that Doreen
did, in fact, respond and fully comply with the discovery requests in writing and by
making the documents available for inspection. CR 264-80. The Order Imposing
Sanctions specifically bases its sanctions upon Jamie Walsh’s Motion to Strike
Discovery and for Sanctions. CR 288.
“Notice is essential for the proper imposition of sanctions.” Zep Mfg. Co. v.
Anthony, 752 S.W.2d 687, 690 (Tex. App.—Houston [1st Dist.] 1988, no writ).
Although a trial court has the inherent authority to impose sanctions, and may do so
sua sponte, the trial court is not permitted to sanction out-of-court conduct without
first providing notice and an opportunity to be heard. See, e.g., Greene v. Young,
174 S.W.3d 291, 293 n.4 (Tex. App.—Houston [1st Dist.] 2005, pet. denied);
6
Shockey v. A.F.P., Inc., 905 S.W.2d 629, 630 (Tex. App.—Houston [14th Dist.]
1995, no writ).
The trial court’s “inherent power to punish without prior notice and
meaningful hearing exists only with respect to ‘direct’ contempt,” that is, to
contempt that occurs in the court’s presence. In re Acceptance Ins. Co., 33 S.W.3d
443, 449 (Tex. App.—Fort Worth 2000, no pet.). “Like contempt proceedings,
proceedings for sanctions must comport with due process, affording a party an
adequate opportunity to be heard.” Id. at 451. By sanctioning Doreen without notice
and an opportunity to be heard, the trial court violated her due process rights and
clearly abused its discretion. See In re Bennett, 960 S.W.2d at 40 (noting that the
right to due process limits a court’s power to sanction); In re Park Mem’l Condo.
Ass’n, 322 S.W.3d 447, 450 (Tex. App.—Houston [14th Dist.] 2010, orig.
proceeding) (“Due process, on a fundamental level, requires notice and a fair
opportunity to be heard.”); Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355, 361
(Tex. App.—San Antonio 2002, pet. denied) (“A trial court abuses its discretion if
it violates due process by imposing sanctions without notice or a meaningful
hearing.”).
The fact that this Court cannot support the sanctions order based solely upon
the motion for sanctions on file demonstrates that the sanctions order should be
reversed. Doreen was not placed on notice of any other basis for sanctions other
7
than the motion on file regarding discovery issues. A trial court’s imposition of
sanctions is reviewed under the abuse of discretion standard of review. Cire v.
Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Since the only basis for this Court to
sustain the sanctions order is the trial court’s inherent authority, and the trial court
did not have the inherent authority to sanction Doreen under the circumstances of
this case, the sanctions order should be reversed.
IV. CONCLUSION AND PRAYER.
Doreen Rubio requests this Court to grant this Motion for Rehearing and
reconsider its opinion.
Respectfully submitted,
/s/ Tracy J. Willi
Tracy J. Willi
Texas Bar No. 00784633
Willi Law Firm, P.C.
9600 Escarpment Blvd., Ste. 745, PMB 34
Austin, TX 78749-1983
Tel. (512) 288-3200
Fax (512) 288-3202
twilli@willi.com
ATTORNEY FOR APPELLANT,
DOREEN RUBIO
8
CERTIFICATE OF COMPLIANCE
In accordance with Texas Rule of Appellate Procedure 9.4, I hereby certify
that this document contains 1,890 words.
/s/ Tracy J. Willi
Tracy J. Willi
9
CERTIFICATE OF FILING AND SERVICE
I hereby certify that this document was filed with Clerk of Court through the
Court’s electronic filing system and served on opposing counsel by the same manner
or, if counsel is not registered for service through the electronic filing system, then
by facsimile or U.S. Mail to the parties and also by email to Ms. Stewart on August
26, 2015 as follows:
Trial and Appellate Counsel for Jamie Walsh:
Ellen P. Stewart
stewart@bls-legal.com
Barnes Lipscomb Stewart & Ott, PLLC
2901-D Bee Caves Rd.
Austin, TX 78746
512-328-8355
512-328-8413 (Fax)
Appellee Pro Se:
Emmet Walsh, an individual, son of Joan Walsh, deceased
2215 Silver Holly Lane
Dallas, Texas 75082
Appellee Pro Se:
Ellen Thornton, an individual, daughter of Joan Walsh, deceased
and as Trustee for Kevin Walsh, incapacitated son of Joan Walsh, and as
Trustee for Lauren Loprintze-Walsh, Torrance Rubio, and Gabriel Rubio,
biological children of Doreen Rubio
224 W. 259th Street
Bronx, New York 10471
/s/ Tracy J. Willi
Tracy J. Willi
10