David Young v. Trails End Homeowners Association, Inc. TLS Properties, Ltd. TLS Operating Company, LLC Van Keene And Rick Durapau

ACCEPTED
03-14-00535-CV
5406912
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/22/2015 6:01:56 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00535-CV
___________________________________________________
IN THE COURT OF APPEALS FILED IN
FOR THE THIRD DISTRICT OF TEXAS AUSTIN,OF
3rd COURT APPEALS
TEXAS
AT AUSTIN, TEXAS 5/22/2015 6:01:56 PM
JEFFREY D. KYLE
David Young, Clerk
Appellant,
v.
Trails End Homeowners Association, Inc., TLS Properties, Ltd.,
TLS Operating Company, LLC, Van Keene, and Rick Durapau,
Appellees.
On Appeal from the 200th Judicial District Court of Travis County, Texas
(Honorable Scott H. Jenkins, of the 53rd Judicial District Court, Presiding)
Trial Court Cause No. D-1-GN-10-003864
___________________________________________________
APPELLEES’ BRIEF
Christopher R. Mugica
State Bar No. 24027554
cmugica@jw.com
Emilio B. Nicolas
State Bar No. 24058022
enicolas@jw.com
Jackson Walker L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
(512) 236-2000
(512) 236-2002 – Fax
ATTORNEYS FOR APPELLEES
TRAILS END HOMEOWNERS
ASSOCIATION AND VAN
KEENE
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
1. Appellant
David Young
Represented by:
Stephen Casey
State Bar No. 24065015
Stephen@caseylawoffice.us
Casey Law Office, P.C.
595 Round Rock West Drive, Suite 102
Round Rock, Texas 78681
Telephone: (512) 257-1324
Facsimile: (512) 853-4098
2. Appellees
Trails End Homeowners Association, Inc.
and Van Keene
Represented by:
Christopher R. Mugica
State Bar No. 24027554
cmugica@jw.com
Emilio B. Nicolas
State Bar No. 24058022
enicolas@jw.com
Jackson Walker L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone: (512) 236-2000
Facsimile: (512) 236-2002
ii
Trails End Homeowners Association, Inc.
Represented by:
W. Thomas Buckle
State Bar No. 03299000
tbuckle@sbylaw.com
Jeff Tippens
State Bar No. 24009121
jtippens@sbylaw.com
Scanalan, Buckle & Young, P.C.
602 West 11th Street
Austin, Texas 78701
Telephone: (512) 478-4651
Facsimile: (512) 478-7750
TLS Properties, Ltd. and TLS Operating
Company, LLC
Represented by:
Derek Quick
State Bar No. 24072471
derek.quick@strasburger.com
Strasburger & Price, LLP
720 Brazos Street, Suite 700
Austin, Texas 78701
Telephone: (512) 499-3600
Facsimile: (512) 499-3660
Rick Durapau, Pro Se
rdurapau@gmail.com
11907 Misty Brook Drive
Austin, Texas 78727
Telephone: (512) 346-4359
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ..................................................... ii
TABLE OF CONTENTS ................................................................................. iv
TABLE OF AUTHORITIES .......................................................................... ivi
STATEMENT OF THE CASE ......................................................................... 2
STATEMENT REGARDING ORAL ARGUMENT ......................................... 4
ISSUES PRESENTED (RESTATED).............................................................. 5
PRELIMINARY STATEMENT ....................................................................... 6
STATEMENT OF THE FACTS ........................................................................7
A. Appellees’ Land in the Trail’s End Subdivision. ..........................7
B. The Disputed Extended Property. ............................................... 9
STANDARD OF REVIEW AND APPLICABLE LAW .................................... 11
ARGUMENT AND AUTHORITIES .............................................................. 13
I. APPELLANT IS BARRED FROM RAISING THE REPLAT
ARGUMENT FOR THE FIRST TIME ON APPEAL. ........................... 13
A. Appellant waived any issue not raised at trial. .......................... 13
B. The re-plat statute at issue does not apply to this case. ............ 13
C. There has never been a conflict between Lot 52
(or its Disputed Extension) and Appellee’s properties. ............. 15
II. THE TRIAL COURT PROPERLY DETERMINED THAT
APPELLANT’S TITLE-BASED CLAIMS WERE UNTIMELY. ........... 20
A. Adverse Possession ..................................................................... 21
B. Limitations began running in 1962. .......................................... 23
C. Defendants established adverse possession to Lot 139,
Lot 140, and the adjoining 1.4777 acre tract. ............................ 25
iv
III. THIS COURT SHOULD AFFIRM THE FINDINGS OF FACT
AND CONCLUSIONS OF LAW BECAUSE THEY ARE
LEGALLY SUFFICIENT AND PROPER............................................. 29
A. Appellant improperly attempts to disturb the Trial Court’s
findings of fact with evidence never offered or introduced at
trial. .......................................................................................... 29
B. Even if Appellant’s untimely evidence were considered,
Appellant nonetheless fails to “conclusively” prove his
ownership of the Extended Disputed Property. ...................... 36
C. The Trial Court correctly determined the location and
metes and bounds of the property and road at issue. ............... 38
D. The conclusive evidence demonstrates Appellant repeatedly
and knowingly trespassed on TEHOA’s property and the Trial
Court appropriately enjoined further trespass. ....................... 40
E. This Court should disregard Appellant’s arguments which
rely on Appellant mischaracterization of the trial record......... 54
F. This Court should affirm the award of attorney fees to
TEHOA as a result of Appellant’s unsuccessful appeal. .......... 55
CONCLUSION AND PRAYER ..................................................................... 56
RULE 9.4 CERTIFICATE OF COMPLIANCE .............................................. 58
CERTIFICATE OF SERVICE........................................................................ 59
APPENDIX ................................................................................................... 60
v
TABLE OF AUTHORITIES
Page(s)
CASES
Aubrey v. Barlin,
2014 U.S. Dist. LEXIS 63411 (W.D. Tex. May 7, 2014) ........................... 24
Best Auto v. Autohaus, LLC,
339 S.W.3d 372 (Tex. App.—Dallas 2011, no. pet.) .................................. 11
Boulanger v. Waste Mgmt. of Tex.,
403 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2012, pet. denied) ......... 33
Cain v. Bain,
709 S.W.2d 175 (Tex. 1986) ................................................................ 12, 13
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005)......................................................... 11, 35, 44
Computer Assoc. Int’l., Inc. v. Altai,
918 S.W.2d 453 (Tex. 1994) ..................................................................... 24
Croucher v. Croucher,
660 S.W.2d 55 (Tex. 1983) ................................................................. 12, 29
Davis v. Howe,
213 S.W. 609 (Tex. Com. App. 1919) ......................................24, 41, 42, 43
Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc.,
686 S.W.2d 351 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) ........... 13
Finkelstein v. Carpenter,
795 S.W.2d 897 (Tex. App. – Beaumont 1990, writ denied) ................... 15
Fisher v. Beach,
671 S.W.2d 63 (Tex. App. – Dallas 1984, no writ) .................................. 28
Ford Motor Co. v. Ridgway,
135 S.W.3d 598 (Tex. 2004) ......................................................... 12, 16, 22
vi
Freedom Commn’cs, Inc. v. Coronado,
372 S.W.3d 621 (Tex. 2012) (per curiam) ............................................... 30
French v. Chevron U.S.A.,
896 S.W.2d 795 (Tex. 1995) .................................................................... 33
HECI Exploration Co. v. Neel
982 S.W.2d 881, 887 (Tex. 1998) ...................................................... 22, 23
Lazarides v. Farris,
367 S.W.3d 788(Tex. App. – Houston [14th] Dist. 2012, no pet.).......... 30
McMillan v. State Farm Lloyds,
180 S.W.3d 183 (Tex. App. – Austin 2005, pet. denied) ......................... 12
Noble Mortg. & Invs., LLC v. D&M Invs., LLC,
340 S.W.3d 65 (Tex. App. – Houston [ 1st Dist.] 2011, no pet.) ....... 22, 37
Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Tex.,
878 S.W.2d 598 (Tex. 1994) (per curiam)............................................... 30
Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211 (Tex. 2003) ..................................................................... 24
Scott v. Cannon,
959 S.W.2d 712 (Tex. App. – Austin 1998, pet. denied) ................... 52, 53
SEI Bus. Sys., Inc. v. Bank One Tex., N.A.,
803 S.W.2d 838 ....................................................................................... 30
Service Corp. v. Guerra,
348 S.W.3d 221 (Tex. 2011) ...................................................................... 12
State of California Department of Mental Hygiene v. Bank of
Southwest National Association,
354 S.W.2d 576 (Tex. 1962) ...................................................................... 13
Tex. Women’s Univ. v. The Methodist Hosp.,
221 S.W.3d 267 (Tex. App. – Houston [1st Dist.] 2006, no pet.) ........... 45
Wilson v. Fisher,
188 S.W.2d 150 (Tex. 1945) ...................................................................... 15
vii
STATUTES
TEX. CIV. PRAC. & REM. CODE ......................................................................... 25
TEX. CIV. PRAC. & REM. CODE § 16.021(1) ...................................................... 25
TEX. CIV. PRAC. & REM. CODE § 16.021(3) ...................................................... 25
TEX. CIV. PRAC. & REM. CODE § 16.023 .......................................................... 24
TEX. CIV. PRAC. & REM. CODE §§ 16.024 ........................................................ 24
TEX. CIV. PRAC. & REM. CODE § 16.025 ............................................... 21, 22, 24
TEX. CIV. PRAC. & REM. CODE § 16.026 ........................................................... 21
TEX. PROP. CODE § 13.001 .............................................................................. 36
TEX. PROP. CODE § 13.001(A) ....................................................................24, 37
TEX. PROP. CODE § 13.002 ............................................................ 22, 24, 41, 43
TEX. REV. CIV. STAT. ANN. ART. 974A, § 5 ........................................................ 13
TEX. REV. CIV. STAT. ART. 974A ....................................................................... 13
TEX. REV. CIV. STAT., ART 974A, § 1.................................................................. 14
RULES
TEX. R. APP. P. 33.1(A) ................................................................................... 55
TEX. R. EVID. 201(D) ...................................................................................... 30
TEX. R. EVID. 602 .......................................................................................... 28
OTHER AUTHORITIES
William V. Dorsaneo III, 17 Dorsaneo Texas Lit. Guide § 250.02[1][a]
(Matthew Bender 2012) ........................................................................... 25
viii
NO. 03-14-00535-CV
___________________________________________________
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AT AUSTIN, TEXAS
___________________________________________________
David Young,
Appellant,
v.
Trails End Homeowners Association, Inc., TLS Properties, Ltd.,
TLS Operating Company, LLC, Van Keene, and Rick Durapau,
Appellees.
On Appeal from the 200th Judicial District Court of Travis County, Texas
(Honorable Scott H. Jenkins, of the 53rd Judicial District Court, Presiding)
Trial Court Cause No. D-1-GN-10-003864
___________________________________________________
APPELLEES’ BRIEF
TO THE HONORABLE COURT:
NOW COMES Appellees Trails End Homeowners Association, Inc.
and Van Keene, appellees herein and defendants before the trial court
below, who submit their brief in this appeal of the Trial Court in favor of
Appellees, and respectfully show as follows:
1
STATEMENT OF THE CASE
Nature of the Case: This case involves unsubstantiated tort claims
arising from a boundary dispute on real estate located along Lake Travis in
Travis County, Texas. The Trial Court correctly found that Appellant failed
to satisfy his burden of proof on his title-based claims and various related
tort claims, and correctly determined that the evidence presented at trial
established certain Defendants’ ownership of the specific properties at
issue.
Course of Proceedings: Appellant initiated this action on November
1, 2010, alleging claims against adjacent landowners regarding his claims to
their parcels of land along the shoreline of Lake Travis. (C.R. 3-6) After
cross-motions for summary judgment were denied, this matter was tried to
the bench on May 27-28, 2014. (See R.R. 1:1:20 – R.R. 1:1:24)
Trial Court Disposition: After Appellant rested, the Trial Court
granted Defendants’ motion for directed verdict from the bench, dismissing
all of Appellant’s tort claims. (R.R. 2:139:8 – R.R. 2:139:13) At the
conclusion of the two-day bench trial, the Trial Court granted judgment in
favor of Defendants on all of their requested relief. (See R.R. 4:30:6 – R.R.
4:32:9; see C.R. 91-109 (Final Judgment)) Appellant filed its Motion for
New Trial on June 30, 2014 (C.R. 112-180), and filed this appeal on August
2
28, 2014, (C.R. 208-210).
3
STATEMENT REGARDING ORAL ARGUMENT
Appellant has not requested oral argument. Appellees believe that
oral argument is not warranted in this appeal because this appeal involves
established law and undisputed facts proven at trial. Appellant
unquestionably failed to meet his burden to present evidence in support of
his claims, and Appellees supplied more than ample evidence to support
their counterclaims and affirmative defenses. Accordingly, this case is
appropriate for disposition by memorandum opinion without the necessity
of oral argument. However, to the extent this Court grants Appellant oral
argument, Appellees request an opportunity to present oral argument as
well.
4
ISSUES PRESENTED (RESTATED)
ISSUE 1. Whether Appellant can challenge the result in the Trial
Court based on evidence that was never presented and
argument that was never asserted or preserved at trial.
ISSUE 2. Whether Appellant established superior title in the
Disputed Extended Property and, if so, whether proved
their claims of adverse possession.
ISSUE 3. Whether Appellant’s broad challenge to the Trial Court’s
many findings of fact and conclusions of law on legal and
factual sufficiency grounds has any merit.
5
PRELIMINARY STATEMENT
This is a title and boundary dispute that was commenced nearly 50
years after the filing of the purportedly “botched” plat which Appellant
seeks to set aside. Despite being aware of the property interests owned and
asserted by Defendants since at least 1997, Appellant waited a dozen years
before commencing this action. Appellant’s dispute can be summarized as
an attempt to disturb property rights that have existed for 60+ years based
on language contained in his predecessor’s deed which purportedly
extended the property “to the center of Big Sandy Creek.” As Appellant is
aware, Big Sandy Creek extends around a peninsula comprised of land
owned by Defendants. Nonetheless, Appellant argues that his “extension
property” traverses the portion of Big Sandy Creek nearest his lot, then
continues across 2-3 platted lots on the peninsula to end in the other side of
Big Sandy Creek.
At trial, Appellant failed to present admissible evidence to prove
either his title-based or tort claims. Defendants, however, presented
conclusive evidence supporting their ownership of the lands at issue, as
well as establishing title by adverse possession. Accordingly, the Trial
Court dismissed Appellant’s claims and granted a judgment in favor of
Defendants on all claims, including their counterclaims. Appellant now
6
challenges multiple aspects of that Final Judgment and its supporting
Findings of Fact by improperly attempting to introduce new arguments as
well as evidence that he never even attempted to offer at trial. Because the
determination of the Trial Court is sound and well-supported by the record,
this Court should affirm.
STATEMENT OF THE FACTS
A. Appellees’ Land in the Trail’s End Subdivision.
More than 60 years prior to the commencement of this litigation, T.L.
Smith, Jr. (“T.L. Smith”) acquired land along the shores of Lake Travis now
known as the Trails End Subdivision in Travis County, Texas. In 1947, T.L.
Smith divided much of that property to create various lots 1 and shortly
thereafter, divided the remainder of the subdivision in a document that’s
been referred to as the 1962 Re-Plat or Re-Subdivision No. 5 (the “1962
Plat”). 2 With exception of one piece of land (“Lot 56”), from which Lot 139
and 140 were carved out, the 1962 Plat did not modify the existing lots in
the 1947 Plat. 3 More importantly, with respect to Appellant’s property
1 Pltf.’s Exh. 2 (1947 Plat), and R.R. 5:2:7 – 5:2:8 (Plaintiff’s Exhibit 2 admitted into
evidence).
2 Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6 admitted
into evidence).
3 Compare Def.s’ Exh. 6 (1962 Plat) with Pltf.’s Exh. 2 (1947 Plat).
7
(“Lot 52”), there was nothing in the 1962 Plat that affected or modified
what was demarcated as Lot 52 in the original 1947 Plat. 4
After being held by T.L. Smith and his heirs for decades, Defendant
TLS Properties, Ltd. (“TLS Properties”) formally acquired legal title to Lots
139 and 140 and the 1.4777-acre tract in 1998. 5 For a period of at least 14
years, Defendant TLS Properties and its predecessors-in-interest leased
Lots 139 and 140, as well as a 1.4777-acre tract of land adjoining Lot 139
(the “1.4777-acre tract”) to Defendant Trails End Homeowners Association,
Inc. (“TEHOA”) for use as boat access and lakefront recreation area. 6
Finally, in 2008, TEHOA actually purchased Lot 139 and the adjacent
1.4777-acre tract from TLS Properties. 7
4 Id.
5 See Def.s’ Exh. 13 (2004 Lease for Lots 139 and 140), and R.R. 5:2:21 – 5:2:23
(Defendants’ Exhibit 13 admitted into evidence); see R.R. 2:217:7 – 2:218:12 (Smith
testifies about the Association’s property leases with TLS Properties since 1994); see
also R.R. 2:215:6 – 2:217:9 (Smith testimony collectively references Lot 139, Lot 140,
and the 1.4777-acre tract when referring to “the lots”); see also Def.s’ Exh. 17 (2008
Deed of Lot 139 from TLS Properties to the Association prior to expiration of the
2004 Lease), and Def.s’ Exh. 18 (2008 Quitclaim of 1.4777-acre tract from TLS
Properties to the Association prior to expiration of the 2004 Lease), and R.R. 5:2:24
– 5:3:6 (Defendants’ Exhibit Nos. 17 and 18 admitted into evidence).
6 R.R. 2:218:8 – 2:218:12 (Smith testimony) (“Q. And did the association use the lots
for the purposes you mentioned earlier for things like boat access or recreation area
throughout the time they’ve leased these properties? A. Yes, as far as I know.”); see
also R.R. 2:215:6 – 2:217:9 (Smith testimony collectively references Lot 139, Lot 140,
and the 1.4777-acre tract when referring to “the lots”); see R.R. 2:231:2 – 2:231:22
(Roberts testimony about the Association’s use of the properties).
7 Def.s’ Exh. 17 (2008 Deed for Lot 139); Def.s’ Exh. 18 (2008 Quitclaim for the
adjoining 1.4777-acre tract).
8
B. The Disputed Extended Property.
In 1997, Appellant David Young (“Appellant” or “Young”) acquired
Lot 52 of the Trails End Subdivision (“Lot 52”) 8 through a 1997 deed which
described the land as:
LOT FIFTY-TWO (52), OF TRAILS END, LAKE
TRAVIS SUBDIVISION, A SUBDIVISION IN
TRAVIS COUNTY, TEXAS, ACCORDING TO THE
RECORDED MAP AND/OR PLAT THEREOF,
RECORDED IN VOLUME 4, PAGE 331, OF THE
PLAT RECORDS OF TRAVIS COUNTY, TEXAS. 9
In this lawsuit and at trial, Young alleged that some portion of Lot 52
(including a purported extension of its side lines to the center of Big Sandy
Creek) encroached upon Lots 139 and 140, and perhaps the adjacent
1.4777-acre tract of land. 10 However, at trial, Appellant did not submit any
evidence to show a conflict between Lot 52 and Defendants’ properties (i.e.,
Lot 139, Lot 140, or the 1.4777-acre tract of land). Instead, Appellant
focused on an unsubstantiated allegation that he had acquired – in addition
to Lot 52 – an unplatted parcel of land belonging to his predecessor in title
that purportedly extended side lot lines of Lot 52 across portions of
8 See R.R. 2:110:13 – 2:110:24 (Plaintiff testifies that he acquired Lot 52 in 1996); but
see Appellate Br. at Tab 8 (1997 Deed for Lot 52). The 1997 Deed attached to
Appellant’s brief as Tab 8 was never offered or admitted at trial; however, Appellant
has included it in his appellate record. While Defendants object to the introduction of
evidence outside the record, reference is hereby made for purposes of context.
9 App. Br. at Tab 8 (1997 Deed for Lot 52). Again, Appellant has improperly included
this exhibit in his appellate record, even though it was never offered or admitted at
trial
10 See C.R. 64-77 at ¶¶ 8-9, 22-31 (Plaintiff’s Fourth Amended Original Petition).
9
Defendants’ property and to the outer reaches of Big Sandy Creek.
According to Appellant, T.L. Smith’s filing of the 1962 Plat which created,
among other properties, Lots 139 and 140, purportedly encroached upon
unidentified portions of the Disputed Extended Property. 11 The figure
below depicts the location and placement of the parcels of land. 12
At trial, the only expert testimony presented contradicted Appellant’s
claims of a title or boundary dispute. Specifically, the evidence
demonstrated that no portion of Lot 139, Lot 140 or the 1.4777-acre tract
encroached upon or conflicted with Lot 52 or the Disputed Extended
Property; 13 and Appellant failed to present any evidence to the contrary.
11 See id.
12 This figure is for explanation only and is not to scale or an accurate, legal description
of the property.
13 See R.R. 2:142:19 – 2:142:25, and R.R. 2:162:10 – 2:163:7, and R.R. 2:202:7 –
2:204:20 (Crichton’s testimony about how Lot 139, Lot 140 and the 1.4777-acre tract
10
STANDARD OF REVIEW AND APPLICABLE LAW
Appellate courts should give great deference to the fact-finder’s
decisions regarding weight and credibility of testimony and the resolution
of evidentiary conflicts. 14
A party attacking the complete lack of evidence to support a finding is
reviewed under the same legal sufficiency standard, whether the
determination was by motion for summary judgment, directed verdict, or
otherwise. 15 The reviewing court must consider the evidence in the light
most favorable to the nonmovant to determine whether it “produced more
than a scintilla of probative evidence to raise a fact issue on the material
questions presented.” 16 An appellate court should only sustain a no
evidence challenge to the legal sufficiency of the evidence when: “(a) there
is a complete absence of evidence of a vital fact; (b) the court is barred by
do not conflict with Lot 52 or the Extended Property, how the “gully” is known as
“Sandy Creek Arm,” how the “gully” is “an arm or branch of Sandy Creek,” that the
“gully” exists in between Lot 52 and Lot 140, and how the border for the Extended
Property lies in the center of the “gully”); see also R.R. 2:218:13 – 2:218:22, and R.R.
2:220:1 – 2:220:24 (Smith testifies that the “gully” situated between Lot 52 and Lot
140 is “an arm of . . . [Big Sandy Creek]” and serves as the boundary between Lot 52
and Lot 140); see also Def.s’ Exh. 20 (2005 Steger & Bizzell Survey, which depicts the
boundary of Lot 140 as running through the center of the “gully”), and R.R. 5:3:7 –
5:3:8 (Defendants’ Exhibit 20 admitted into evidence); see also Def.s’ Exh. 21 (2014
Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit 21 admitted into
evidence).
14 See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005).
15 City of Keller, 168 S.W.3d at 827 (“the test for legal sufficiency should be the same for
summary judgments, directed verdicts, judgments notwithstanding the verdict, and
appellate no-evidence review.”).
16 Best Auto v. Autohaus, LLC, 339 S.W.3d 372, 374–5 (Tex. App.—Dallas 2011, no.
pet.).
11
rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact; (c) the evidence offered to prove a vital fact is no more
than a mere scintilla; or (d) the evidence conclusively establishes the
opposite of the vital fact.” 17 More than a scintilla means the evidence “rises
to the level that would enable reasonable and fair-minded people to differ
in their conclusions.” 18
A challenge to the factual sufficiency of the evidence submitted at trial
is, an argument that a finding is so contrary to the overwhelming weight of
the evidence, it must be clearly wrong and unjust. 19 If the appellant argues
that there is insufficient evidence to support the adverse finding, then that
standard is only applicable on issues in which he did not have the burden of
proof at trial. 20 The appellate court should consider and weigh all of the
evidence in the record to determine whether the evidence supporting the
finding is so weak or the finding is so contrary to the overwhelming weight
of the evidence that the finding should be set aside as “clearly wrong and
17 Service Corp. v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011) (internal quotations
omitted).
18 Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).
19 Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
20 Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) insufficient evidence standard
applies when the party without the burden of proof at trial complains of an adverse
finding for factual sufficiency); McMillan v. State Farm Lloyds, 180 S.W.3d 183, 201
(Tex. App. – Austin 2005, pet. denied).
12
manifestly unjust.” 21
ARGUMENT AND AUTHORITIES
I. APPELLANT IS BARRED FROM RAISING THE REPLAT
ARGUMENT FOR THE FIRST TIME ON APPEAL.
A. Appellant waived any issue not raised at trial.
A significant portion of Appellant’s brief is devoted to an argument
that the 1962 Plat was an illegal or botched re-plat under Texas law. 22
According to Appellant, such a re-plat “may not be authorized unless
permission is obtained from all affected land-owners.” 23 However,
Appellant never raised this issue or presented this argument to the Trial
Court. Accordingly, this argument is waived and merits no further
consideration. 24
B. The re-plat statute at issue does not apply to this case.
The foundation of Appellant’s “illegal re-plat” argument is TEX. REV.
CIV. STAT. ANN. ART. 974a, § 5. 25 Even a cursory review of the statute
21 See Cain, 709 S.W.2d at 176.
22 See App. Br. at 15 et seq.
23 Id. at 16. Notably, Appellant cites no authority for this point, nor does he explain
whether such “illegal re-plat” would be voidable or void ab initio.
24 See Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc., 686 S.W.2d 351, 354
(Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (citing State of California
Department of Mental Hygiene v. Bank of Southwest National Association, 354
S.W.2d 576, 581 (Tex. 1962)) (“It is well settled Texas law that an allegation not
contained in the pleadings nor otherwise raised or proven in the trial court cannot be
raised for the first time on appeal.”).
25 App. Br. at 15-17; App. Br. At Tab 3 (copy of TEX. REV. CIV. STAT. ART. 974a) (“TEX.
REV. CIV. STAT. ART. 974a”).
13
reveals that, had Appellant actually preserved this argument, the statute
would nonetheless be wholly inapplicable to the case at bar. For example,
by its own express terms, the statute states that it applies to tracts of land
“situated within the corporate limits of any city in the State of Texas.” 26
The subject properties in this dispute are not located within the city limits,
nor is there any evidence they were within the city limits in 1962.
Moreover, the statute’s purpose was to protect city planners, as evidenced
by its requirement that any plan or plat vacated must receive “the approval
of the City Planning Commission or governing body of such city.” 27 As
Appellant is neither an agent nor representative of a city, he lacks standing
to allege he was entitled to notice 50 years prior to acquiring Lot 52.
Furthermore, notwithstanding Appellant’s unsupported argument to the
contrary, the 1962 Plat did not actually re-plat any portion of Lot 52. A
side-by-side comparison of the two property records reveals that Lot 52 is
clearly delineated and demarcated on the 1947 Plat but not shown at all on
the 1962 Plat. 28 Accordingly, as Defendants have always maintained,
26 Tex. Rev. Civ. Stat., art 974a, § 1.
27 Id. at § 5.
28 Indeed, there was no reason for the 1962 Plat to show the relationship between its
platting of Lot139, Lot 140 or the 1.4777-acre tract, on the one side, and Lot 52 (or
even the Extended Property), on the other side, because the evidence establishes that
there is no conflict between those properties. Supra, note 13.
14
Appellant’s property is simply the same identical Lot 52 shown in the 1947
Plat.
C. There has never been a conflict between Lot 52 (or its
Disputed Extension) and Appellee’s properties.
Indisputably, Young failed to present any evidence at trial, let alone a
scintilla of evidence, that describes Lot 52 and the Disputed Extended
Property with any reasonable certainty as required by law. 29 On appeal,
Appellant argues that the fact that the Court has the power to declare
property rights premised upon his ambiguous description of Lot 52 and the
Extended Disputed Property, yet he failed to present any credible or
admissible evidence to the Trial Court to describe or set forth the
boundaries of the Disputed Property. Furthermore, Appellant also failed to
offer any evidence to contradict the testimony of Herman Crichton
(“Crichton”) – the sole testifying property and land survey expert. Thus,
the Trial Court properly disposed of Appellant’s title-based claims for lack
of evidence and granted relief for TEHOA based on the sole expert opinion
presented, which was corroborated by other evidence, 30 and which
29 For a writing’s description of land to be sufficient, it must provide enough data that it
can identify the land to be conveyed with reasonable certainty. Wilson v. Fisher, 188
S.W.2d 150, 152 (Tex. 1945); see also Finkelstein v. Carpenter, 795 S.W.2d 897, 898
(Tex. App. – Beaumont 1990, writ denied) (ambiguities in the identity of land
intended to be conveyed by a deed is a question of fact for the jury).
30 Supra, note 13.
15
conclusively proved TEHOA’s ownership rights in Lot 139 and the 1.4777-
acre tract. 31
Assuming Appellant had even established ownership in the Disputed
Extended Property, he never established it conflicted with the properties
owned by TLS Properties and TEHOA. Furthermore, Appellant’s brief
presupposes that there is no dispute with his interpretation of the meaning
of “to the center line of Big Sandy Creek” contained in the 1955 Trundle
Deed, treating it as if it clearly establishes a conflict with the lots owned by
TLS Properties and TEHOA. 32 However, the interpretation of this language
was a critical issue at trial, and the evidence established that the only
reasonable interpretation was meant as being the center of that portion of
Big Sandy Creek between Appellant’s Lot 52 and Lot 140 (the lot owned by
TLS Properties), sometimes referred to as the “gully.” 33
31 When the evidence offered to prove a fact simply “create[s] a mere surmise or
suspicion of the existence of its existence, the evidence is no more than a scintilla and,
in legal effect, is no evidence.” Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 601
(Tex. 2004) (internal quotations omitted) (“Evidence that is so slight as to make any
inference a guess is in legal effect no evidence.”).
32 Without objection, both Smith (TLS Properties’ representative) and Crichton testified
that they interpreted the phrase “to the center line of Big Sandy Creek” to mean the
center of the “gully” situated between Lots 52 and 140, and not to the center line of
that other portion of Big Sandy Creek situated beyond Lot 140 as Appellant would
contend. Supra, note 13. Compare the foregoing, with R.R. 4:5:21 – 4:6:7 (Plaintiff’s
closing argument, wherein Plaintiff contends that the 1955 Trundle Deed designates a
section of Big Sandy Creek that is not the “gully” as the intended center line).
33 Supra, note 13.
16
In Finding of Fact No. 16, the Trial Court correctly adduced that
“[t]he Extended Property does not conflict with Lot 139, Lot 140, the
1.4777-acre tract, or West Darleen Drive.” 34 Significantly, Appellant offered
no competing evidence, including a survey demonstrating an alternative
boundary, nor did he offer any expert testimony to support his argument as
to where the boundaries should lie. In fact, Appellant has never explained
precisely where the boundaries should lie if the Court were to accept his
position. 35 Accordingly, Appellant never sustained his burden of proof at
trial.
Furthermore, the Trial Court’s interpretation of the Extended
Disputed Property language is supported by the uncontradicted testimony
of Bruce Smith (“Smith”), TLS Properties’ representative and grandson of
T.L. Smith, 36 who testified that in his view, the area between Lot 52 and Lot
140 is a part of Big Sandy Creek. 37 When examining the Travis County
Appraisal District maps admitted into the record, 38 Brice Smith explained
how those documents also referred to the area between the properties as
34 C.R. 191-93 at p. 4 (Finding of Fact No. 16); see Supra note 13.
35 At a minimum, this inescapable fact would prevent this Court from ever rendering
judgment in favor of Appellant, as he requests.
36 R.R. 2:212:10 – 2:212:12; R.R. 2:213:20 – 2:213:21.
37 R.R. 2:218:13 – 2:218:22, and R.R. 2:220:1 – 2:220:24.
38 Def.s’ Exh. 30 (TCAD Map 0007), and R.R. 5:3:10 – 5:3:11 (Defendants’ Exhibit 30
admitted into evidence).
17
“Sandy Creek Arm,” which is also the same label used for the main area of
the creek (where Appellant apparently believes the extension language is
referring to). 39 Smith also referenced the 2005 Steger & Bizzell survey, and
how that survey showed the centerline of the Sandy Creek Arm as the
boundary between Lot 140 and Lot 52. 40 Smith testified that the boundary
shown on the survey was consistent with his understanding of the boundary
between Lot 140 and Lot 52. 41
Also invalidating Appellant’s interpretation is Crichton’s
uncontroverted testimony that he reviewed property records regarding
adjoining lots in the area, which contained the same extension language as
the Trundle deed, and would have conflicted with platted lots between Lots
53 and 54 and the center of the main arm of Sandy Creek (where Appellant
alleges his property extends). 42 In other words, the Trial Court’s
interpretation of the “extension” language to mean the center of that part of
Sandy Creek that is located between Lot 52 and Lot 140 not only eliminated
conflict between Appellant’s property and TEHOA’s and TLS Properties’
properties, but it harmonized neighboring property boundaries and
39 Id.; R.R. 2:219:7-25.
40 R.R. 2:220:6-19.
41 R.R. 2:220:20-24.
42 R.R. 2:160:21 – 161:11.
18
avoided new boundary conflicts among property owners who are not
parties to this suit. 43
As for Appellant’s nonsensical suggestion that the arm of Sandy Creek
between Lot 52 and Lot 140 somehow developed or appeared at some point
after the 1947 plat, 44 he points to no evidence to support this claim, and a
review of the 1947 Plat, reveals that it does not even label what constitutes
Big Sandy Creek (it refers to the main area of the creek as Lake Travis), but
does depict the arm of the creek running between lots 52, 53, and 54, and
Lot 56. (Lot 56 was the lot that was eventually re-platted in 1962 to create
Lots 139 and 140). 45 Therefore, Defendants’ interpretation does not
conflict with the 1947 plat and it harmonizes neighboring property
boundaries, while Appellant’s unsupported interpretation would create
unreasonable conflict between platted properties.
For all these reasons, the Trial Court correctly determined that the
Disputed Extended Property does not conflict with Lot 139, Lot 140, the
1.4777-acre tract, or West Darleen Drive, 46 and Appellant has failed to show
43 See Def.s’ Exh. 20 (2005 Steger & Bizzell Survey), and Def.s’ Exh. 21 (2014 Land
Survey), and Pltf.’s Exh. 2 (1947 Plat); R.R. 2:162:10 – 163:2.
44 See App. Br. at p. 20 (“Even if the development of a gully took place between the
period of 1947, when the legal plat was formed, the botched 1962 re-plat, and the
surveys performed in preparation for the case at bar . . . .”).
45 R.R. 3:60:8-13;
46 See C.R. 181-193 at p. 4 (Findings of Fact No. 16); see also C.R. 181-193 at p. 3 (No.
2(f)).
19
he is entitled to reversal on his title claims regardless of whether he had
shown title.
II. THE TRIAL COURT PROPERLY DETERMINED THAT
APPELLANT’S TITLE-BASED CLAIMS WERE UNTIMELY.
Although Appellant’s argument – at trial and before this Court – has
centered on an attempt to suggest that Defendants have orchestrated a
campaign to steal “his land,” there has never been any dispute about
whether Appellant owns Lot 52. Instead, as set forth in the preceding
section, the Disputed Extended Property in this lawsuit is an extension of
Lot 52 that Young contends runs over Big Sandy Creek, continues over a
portion of Lot 140, and ends in the western most arm of Sandy Creek. 47
Lot 139 and Lot 140 were created by the 1962 Plat. Thirty-five years
later, Appellant purchased Lot 52 from a third-party. 48 Notably,
Appellant’s 1997 Deed did not purport to convey any of the Disputed
Extended Property. 49 In 1998, shortly after Young purchased Lot 52, TLS
Properties was deeded Lots 139 and Lot 140. 50
47 See C.R. 64-77 at ¶¶ 8-9 (Plaintiff’s Fourth Amended Petition); see also Def.s’ Exh. 20
(2005 Steger & Bizzell Survey), and Def.s’ Exh. 21 (2014 Land Survey).
48 App. Br. At Tab 8 (1997 Deed for Lot 52).
49 Again, Appellant’s original deed – the 1997 Deed – describes the subject property as
only Lot 52 – not including any extended property. See App. Br. At Tab 8.
50 See Def.s’ Exh. 11, Def.s’ Exh. 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 –
5:2:20, Defendants’ Exhibits 11 and 12 admitted into evidence).
20
A. Adverse Possession 51
Mistakenly, Appellant contends that the 1962 Plat was “botched”
therefore could never operate to create Lots 139 and 14 and, Texas law
requires that a person bring a suit within ten years to recover real property
held in peaceable and adverse possession by another who cultivates, uses,
and enjoys the property. 52 Where, as is the case here, 53 another party is
claiming the property under a duly registered deed and pays the applicable
taxes on the property, the statute of limitations is only five years. 54
Appellant’s live pleading judicially admits that he was dispossessed
from the Disputed Extended Property by TLS Properties and/or TEHOA
since his purchase in 1997. 55 Additionally, although TEHOA disputes any
claim that Lot 139 or the 1.4777-acre tract encroaches on Lot 52, Appellant
51 In addition to making a general assertion that “No evidence supported adverse
possession by [TEHOA],” Appellant challenges many of the individual findings of fact
and conclusions of law which support the determination of adverse possession.
Compare App. Br. at pp. 20-23 (challenging adverse possession), with App. Br. at pp.
24-28 (challenging Findings of Fact Nos. 7-8 and 20-22 and Conclusions of Law Nos.
40-41 and 43-44). In the interest of efficiency, and to avoid repetition, those issues
are consolidated into this one section.
52 TEX. CIV. PRAC. & REM. CODE § 16.026 (10-year statute).
53 See Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6
admitted into evidence).; see Def.s’ Exh. 11, Def.s’ Exh. 12 (1998 Special Warranty
Deeds), and R.R. 5:2:16 – 5:2:20 (Defendants’ Exhibits 11 and 12 admitted into
evidence); see Def.s’ Exh. 17 (2008 Deed of Lot 139), and Def.s’ Exh. 18 (2008
Quitclaim of 1.4777-acre tract), and R.R. 5:2:24 – 5:3:6 (Defendants’ Exhibit Nos. 17
and 18 admitted into evidence); see R.R. 2:215:6 – 2:216:4 (Smith testifies that TLS
Properties and its predecessors in interest had paid the taxes on Lot 139, 140 and the
1.4777-acre tract the entire time they owned those properties).
54 TEX. CIV. PRAC. & REM. CODE § 16.025 (5-year statute).
55 See C.R. 64-77 at ¶¶ 8-9, 22-31 (Plaintiff’s Fourth Amended Original Petition).
21
acknowledged that he was dispossessed of the Disputed Extended Property
since 1998 when TLS Properties – TEHOA’s immediate predecessor in title
to Lot 139 – recorded its deeds for Lots 139 and 140. 56
Furthermore, aside from Appellant’s admission that he had been
dispossessed from the Disputed Extended Property for nearly twelve years
before filing suit, 57 the law holds that he had, at a minimum, constructive
notice of TLS Properties’ deeds since their filing of public record in 1998.
An instrument that is properly recorded in the proper county is notice to all
persons of the existence of the instrument. 58 Recorded instruments in a
grantee’s chain of title generally establish an irrebuttable presumption of
notice. 59 Additionally, a person may also be charged with constructive
notice for a deed outside his chain of title if facts appearing in the chain of
title through which he claims title would place a reasonably prudent person
on inquiry as to the rights of other parties in the property conveyed. 60
Moreover, Appellant acknowledged that documents filed with the real
property records for Travis County, Texas puts the public on notice of
56 id.
57id.
58 TEX. PROP. CODE § 13.002.
59 Ford, 235 S.W.3d at 617; Noble Mortg. & Invs., LLC v. D&M Invs., LLC, 340 S.W.3d
65, 76 (Tex. App. – Houston [ 1st Dist.] 2011, no pet.); see also HECI Exploration Co.
v. Neel, 982 S.W.2d 881, 887 (Tex. 1998) (“The need for stability and certainty
regarding titles to real property has led courts to hold that real property records can
constitute constructive notice.”).
60 Noble Mortg., 340 S.W.3d at 76.
22
conveyances. 61 In some circumstances, such as those present in this case,
“[c]onstructive notice creates an irrebuttable presumption of actual
notice”. 62
It is undeniable that, by the time Appellant commenced this lawsuit
on November 1, 2010, 63 the Disputed Extended Property had been
subdivided for more than 45 years by way of the 1962 Plat. Additionally,
Lots 139 and 140 and the adjoining 1.4777 acre tract – which Appellant
alleges infringe upon his property – had been conveyed by separate deeds
for more than twelve years by the time this lawsuit was filed. Accordingly,
Young’s title-based claims expired no later than 2008 and are, thus, time-
barred as a matter of law. 64
B. Limitations began running in 1962.
In Texas, a cause of action accrues when a wrongful act causes a legal
injury, regardless of when the plaintiff learns of that injury or if all resulting
61 During his opening statement, Appellant states: “Through all these years, the thing I
understand the most is when someone deeds a plat and records it at the county
courthouse, the recording is actually just to put people on notice.” R.R. 2:16:12 –
2:16:15.
62 HECI, 982 S.W.2d at 887.
63 See C.R. 3-6 (Plaintiff’s Original Petition) and Def.s’ Exh. 6 (1962 Plat).
64 Arguably, since Appellant stands in the shoes of his predecessor, the claims actually
accrued when the 1962 Plat was filed 50 years ago in 1962. See Def.s’ Exh. 6 (1962
Plat), and R.R. 5:2:14 – 5:2:16 (Defendant’s Exhibit 6 admitted into evidence).
23
damages have yet to occur. 65 Regardless of which limitation period applies,
all periods began running as early as 1962 when T.L. Smith recorded the
1962 Plat, which provided constructive notice to Appellant and his
predecessors in title. 66 Additionally, the two 1998 deeds conveying Lots 139
and 140 to TLS Properties were also recorded nearly 12 years prior to the
commencement of this litigation. 67 Thus, the 3-, 5-, and 10-year statutes of
limitations would bar all of Young’s title-based claims. 68
65 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003); see also
Computer Assoc. Int’l., Inc. v. Altai, 918 S.W.2d 453, 461 (Tex. 1994) (“Under Texas
law, the statute of limitations on tort claims generally begins to run when ‘the
wrongful act effects an injury, regardless of when the plaintiff learned of such an
injury.’”) (internal citations omitted); see also Aubrey v. Barlin, 2014 U.S. Dist.
LEXIS 63411, at *17-20 (W.D. Tex. May 7, 2014) (dismissing under Rule 12(b) claims
filed in 2012 against a title company for investments lost in 2009 to be barred by two-
year statute of limitations because “it is the fact of injury – not when it is discovered –
that matters.”) (emphasis in original).
66 TEX. PROP. CODE § 13.002; Davis v. Howe, 213 S.W. 609, 610-11 (Tex. Com. App.
1919) (“The law of limitation of actions for land is founded upon notice. The title by
limitation ripens, primarily, only because, in such manner and for such period of time
as the different statutes require, notice is given of the hostile claim … ‘[A recorded
deed has], with its registration, distinct from any office as a conveyance of title, the
force of notice of the adverse claim to the land.’”). By its explicit language, the Texas
Recording Statute applies to “A conveyance of real property or an interest in real
property or a mortgage or deed of trust … .” TEX. PROP. CODE § 13.001(a) (emphasis
added).
67 See Def.s’ Exh. 11, Def.s’ Exh. 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 –
5:2:20 (Defendants’ Exhibits 11 and 12 admitted in evidence).
68 TEX. CIV. PRAC. & REM. CODE §§ 16.024 (3-year statute), 16.025 (5-year statute),
16.026 (10-year statute); see also TEX. CIV. PRAC. & REM. CODE § 16.023 (tacking of
successive interests).
24
C. Defendants established adverse possession to Lot 139,
Lot 140, and the adjoining 1.4777 acre tract.
The 3-, 5-, 10-, and/or 25-year adverse possession statutes of
limitations apply to Appellant’s title-based claims because, throughout
those limitation periods, TEHOA and TLS Properties, respectively, have
held record title to Lot 139, Lot 140, and the adjoining 1.4777-acre tract in
peaceable and adverse possession; have cultivated, used, or enjoyed those
properties; and have paid the taxes on those properties. 69 Appellant may
argue that there has not been a showing of adverse possession by TEHOA
or TLS Properties; but the evidence presented at trial clearly established
that for a decades TLS Properties (or its predecessor) utilized these tracts of
land for lake access and rented the same to TEHOA, prior to consummating
the sale of the properties in 2008.
A cursory review of the evidence before the Trial Court, including
Young’s Fourth Amended Petition, demonstrates that much more than a
69 “Adverse possession” under the Texas Civil Practice and Remedies Code means “an
actual and visible appropriation of real property, commenced and continued under a
claim of right that is inconsistent with and is hostile to the claim of another person”
TEX. CIV. PRAC. & REM. CODE § 16.021(1). “The elements of an adverse possession
claim or defense depend on the statute on which the claim or defense is based.”
William V. Dorsaneo III, 17 Dorsaneo Texas Lit. Guide § 250.02[1][a] (Matthew
Bender 2012). Thus, “possession” and the other elements of an adverse possession
claim do not apply in the context of an adverse possession statute of limitations
defense. Note also that “peaceable possession” means “possession of real property
that is continuous and is not interrupted by an adverse suit to recover property.” TEX.
CIV. PRAC. & REM. CODE § 16.021(3).
25
scintilla of evidence was presented to the Trial Court to support the findings
of adverse possession. 70
As the Trial Court determined, during the entire time when it owned
Lot 139 and the 1.4777-acre tract, TLS Properties either used those
properties as preserved areas or parklands, or leased those properties to
TEHOA which used them as preserved areas or parklands. 71 This finding
was supported by the testimony of Smith at trial, where he noted that the
character of Lot 139, Lot 140 and the adjoining 1.4777-acre tract made them
usable as, among other things, parklands. 72 Smith also confirmed that TLS
Properties had leased Lot 139, Lot 140 and/or the 1.4777-acre tract to
TEHOA since at least 1994; 73 and that TEHOA used those properties “for
70 C.R. 64-77 at ¶ 29 (Plaintiff’s Fourth Amended Original Petition).
71 C.R. 181-93 at p. 3 (Finding of Fact No. 7).
72 See R.R. 2:216:5 – 2:216:21 (Smith testimony stating, “Can’t build on it [(as in Lot
140)] or anything, but it could be used as a boat launch ramp or a park, that sort of
thing. . . . I suppose you could [use Lot 140 as a place to build docks, thinks like that,]
out on the road area down there.”); see R.R. 2:216:22 – 2:217:6 (“Q. And given the
nature of Lot 139 and the adjoining tract, is there much that can be done on it besides
using it as a park area, a lake access point? A. Right, or access, you know, to the
lake.”).
73 R.R. 2:217:7 – 2:218:7 (Smith testimony); see also R.R. 2:215:6 – 2:217:9 (Smith
testimony collectively references Lot 139, Lot 140, and the 1.4777-acre tract when
referring to “the lots”). See Def.s’ Exh. 13 (2004 Lease), and R.R. 5:2:21 – 5:2:23
(Defendants’ Exhibit No. 13 admitted into evidence); see also Def.s’ Exh. 17 (2008
Deed of Lot 139 from TLS Properties to TEHOA prior to expiration of the 2004
Lease), and Def.s’ Exh. 18 (2008 Quitclaim of 1.4777-acre tract from TLS Properties
to TEHOA prior to expiration of the 2004 Lease), and R.R. 5:2:24 – 5:3:6
(Defendants’ Exhibit Nos. 17 and 18 admitted into evidence). For this reason,
Appellant’s challenge to the sufficiency of Finding of Fact Nos. 7 and 8 must fail. See
App. Br. at 24-25.
26
things like boat access or recreation area throughout the time . . . [TEHOA]
leased . . . [those] properties.” 74 His testimony was corroborated by the
testimony of June Roberts (“Roberts”) (TEHOA’s representative) 75 that
TEHOA purchased Lot 139 and the 1.4777-acre tract for purpose of allowing
its “homeowners that live on the north end of the subdivision to have a
closer place to launch their boats and have picnics . . . .” 76
Moreover, the Trial Court’s made numerous findings of fact –
unchallenged in this appeal – which support the finding of adverse
possession, including “[a]t all relevant times, Lot 139 has been suited for
use as a preserved area or parkland;” that “[a]t all relevant times, Lot 140
has been suited for use as a boat launch or other point of access to Lake
Travis when underwater, and as a preserved area or parkland when not
underwater;” that “[t]he 1.4777-acre tract is suited for use as a preserved
area or parkland.” 77
74 See R.R. 2:218:8 – 2:218:12 (“Q. And did the association use the lots for the purposes
you mentioned earlier for things like boat access or recreation area throughout the
time they’ve leased these properties? A. Yes, as far as I know.”); see also R.R. 2:215:6
– 2:217:9 (Smith testimony collectively references Lot 139, Lot 140, and the 1.4777-
acre tract when referring to “the lots”).
75 R.R. 2:229:11 – 2:229:20 (Roberts testimony).
76 R.R. 2:230:15 – 2:231:15 (Roberts testimony).
77 C.R. 181-93 at pp. 1-2 (Finding of Fact Nos. 2(b), (c), 2(e)); see Appellant’s Br. at pp.
23-28 (Finding of Fact Nos. 2(b) and 2(c) are not among Appellant’s laundry list of
challenges to specific Findings of Fact and Conclusions of Law, and Appellant’s
specific challenge to Finding of Fact No. 2(e) does not address the issue).
27
Even Appellant’s untimely attempt to discredit Smith’s testimony as
speculative 78 fails because Smith’s testimony is uncontroverted and based
on personal knowledge. Appellant did not object to Smith’s testimony on
speculation or any other grounds, including lack of personal knowledge;
and Smith testified that he had actual knowledge of how TEHOA used Lot
140 during the lease period. 79 Finally Smith’s testimony was corroborated
by Roberts, who testified that TEHOA had been using Lot 139, Lot 140
and/or the 1.4777-acre tract as a boat launch and/or parkland during their
lease of those properties, and up until the time when they purchased Lot
139 and the 1.4777-acre tract. 80
78 Appellant’s Br. at p. 25.
79 Use of the phrase “as far as I know” does not render Smith’s testimony legally
incompetent for lack of personal knowledge. To the contrary, the evidence in the
record supports a finding that Smith, as the principal of TLS Properties, which owned
Lot 140 and leased it to TEHOA, had personal knowledge of the matter. See TEX. R.
EVID. 602; see also Fisher v. Beach, 671 S.W.2d 63, 67 (Tex. App. – Dallas 1984, no
writ) (holding in a defamation case that the following deposition testimony was
sufficient to reveal that plaintiff “had actual knowledge of the [allegedly
slanderous] communications prior to . . . [an] indictment: Q [DEFENSE COUNSEL]:
So you are saying that Dale Long . . . talked to you and said that Mr. Beach came down
and said, I want to file criminal charges against Sam Fisher? A: Yes. Q: And this was
before you were indicted, this was before you were served with a warrant? A: As far
as I know, yes, sir.” (emphasis added)).
80 See R.R. 2:231:2 – 2:231:22 (Roberts testimony); see R.R. 2:218:1 – 2:218:12 (Smith
testifies about TEHOA’s property leases with TLS Properties since 1994).
28
III. THIS COURT SHOULD AFFIRM THE FINDINGS OF FACT
AND CONCLUSIONS OF LAW BECAUSE THEY ARE
LEGALLY SUFFICIENT AND PROPER.
Appellant concludes his brief with a laundry list of purported errors
in the Trial Court’s Findings of Fact and Conclusions of Law, while
convoluting the applicable standards of review. 81 Appellant’s arguments
are incorrect and insupportable, and this Court should affirm the Final
Judgment. In further support of his position, Appellant also seems to argue
that the Findings of Fact are legally insufficient under a “no evidence”
standard of review. 82 The following responds to remaining challenges
generically presented on pages 24-27 of the Appellant’s Brief.
A. Appellant improperly attempts to disturb the Trial
Court’s findings of fact with evidence never offered or
introduced at trial.
Disturbingly and nonsensically, much of Appellant’s challenge to the
Trial Court’s Findings of Fact is premised upon purportedly “conclusive”
evidence that Appellant never even attempted to offer or introduce at trial.
Instead, Appellant attempts to circumvent established evidentiary rules and
standards of review by improperly inserting substantive evidence at the
appellate stage and has the audacity to claim that the Trial Court’s findings
81 See Appellant’s Br. at pp. 4, 13-14, 23-28 (arguing the standard of review).
82 Compare Appellant’s Br. at pp. 23-24, 27 (arguing the standard of review), with
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) (“no evidence” standard of
review).
29
were erroneous because they do not reflect consideration of evidence that
was never even presented.
Central to Appellant’s argument is his insertion of instruments into
evidence on appeal (through an improper request for judicial notice to this
Court) 83 which were never furnished to the Trial Court, including the 1997
Deed by which Appellant acquired his interest in Lot 52. 84 The very fact
83 Young incorrectly attempts requests this Court take judicial notice to improperly
supplement the appellate record with new evidence. See, e.g., App. Br. at p. 5 n.1
(citing authorities). Defendants acknowledge that appellate courts may judicially
notice facts for the first time on appeal. See Freedom Commn’cs, Inc. v. Coronado,
372 S.W.3d 621, 623 (Tex. 2012) (per curiam); see Office of Pub. Util. Counsel v. Pub.
Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (per curiam); see SEI Bus.
Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 840 (Tex. App. – Dallas 1991, no
writ); see TEX. R. EVID. 201(d). Typically, “appellate courts take judicial notice of facts
outside the record only to determine jurisdiction over an appeal or to resolve matters
ancillary to decisions which are mandated by law (e.g., calculation of prejudgment
interest when the court renders judgment).” SEI Bus. Sys., 803 S.W.2d at 841. But
they do not judicially notice facts “which go to the merits of a dispute” because they
are not a trier of fact. Id. (declining to judicially notice on appeal of the contents of a
certified copy of amended articles of incorporation from the Texas Secretary of State’s
corporation files offered to prove a disputed fact); Freedom Commn’cs, 372 S.W.3d at
623-24 (judicially noticing on appeal the contents of a plea agreement admitting
judicial misconduct, but only to review its effect on appellate jurisdiction, and not the
merits of appeal); see also TEX. R. EVID. 201(d) (cannot judicially notice a fact “subject
to reasonable dispute”). Young relies on a sweeping generalization of the law to offer
“evidence” that goes to the merits of the parties’ dispute and this appeal and/or that is
reasonably questionable in terms of accuracy. See, e.g., App. Br. at p. 8 n.3 (request
for judicial notice of disputed facts). And the cases he cites for support are
distinguishable. See Office of Pub. Util. Counsel, 878 S.W.2d at 600 (cited in Young’s
brief) (judicially noticing on appeal a published Public Utility Commission of Texas
ratemaking order that was “capable of accurate and ready determination by resort to
a published record whose accuracy cannot reasonably be questioned” (emphasis
added)); see Lazarides v. Farris, 367 S.W.3d 788, 799(Tex. App. – Houston [14th]
Dist. 2012, no pet.) (judicially noticing on appeal the fact that minutes of a City
Council meeting were published on the City’s website, as opposed to the contents of
those minutes, because the accuracy of such a fact was not reasonably questionable).
84 Appellant’s Br. at p. 25.
30
that Appellant deems it necessary to insert Tab 8 to his Appellant’s Brief
(the 1997 Deed) into the record for the first time on appeal 85 belies his
argument that the Trial Court’s determination in Finding of Fact No. 14
that, “Plaintiff did not offer any credible evidence that he owns the
Extended Disputed Property, as described above [as ‘[a] parcel of land
between the extension of the side lines of Lot 52 to the center line of Big
Sandy Creek’].” 86
The Trial Court was only presented with three instruments relevant to
Appellant’s alleged chain of title: the 1947 Plat, the 1955 Trundle Deed, and
the 1962 Plat. 87 None of those instruments evidence the conveyance of Lot
52 or the Disputed Extended Property to Appellant, which is a simple fact
discrediting Appellant’s ownership claim. Appellant’s failure to meet his
burden at trial cannot be cured through the introduction of entirely new
evidence on appeal. Additionally, the instrument Appellant attempts to
offer on appeal further discredit his claim because, although the 1997 Deed
85 Appellant’s Br. at Tab 8 (1997 Deed); Defendants object to the inclusion and insertion
of Tab 8 into the record for any purpose.
86 C.R. 181-93 at p. 4 (Finding of Fact No. 14); see C.R. 181-93 at p. 2 (Finding of Fact
No. 2(d), which describes the Disputed Extended Property).
87 Pltf.’s Exh. 2 (1947 Deed), and R.R. 5:2:7 – 5:2:8 (Appellant’s Exhibit 2 admitted into
evidence); Pltf.’s Exh. 4 (1955 Trundle Deed), and R.R. 5:2:10– 5:2:11 (Appellant’s
Exhibit 4 admitted into evidence); Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16
(Defendants’ Exhibit 6 admitted into evidence).
31
conveys Lot 52 to Appellant, it makes no mention of the Disputed Extended
Property. 88
Similarly, Appellant’s challenge to the Trial Court’s determination
that the Disputed Extended Property did not conflict with Lot 139, 140, or
the 1.4777 acre tract is entirely dependent upon the same improper
introduction of evidence. 89 In addition to the reasons set forth above
regarding the propriety of challenging factual findings based on evidence
never submitted at trial, the Trial Court’s findings regarding the lack of
conflict between Defendants’ properties and the Disputed Extended
Property is based upon its determination that the Extended Disputed
Property, if any, owned by Appellant consisted only of the underwater
portion of land that was in the center of Big Sandy Creek arm that ran
between Lot 52 and Lots 139 and 140. In other words, the Trial Court
properly determined that any extended portion conveyed to Appellant (or
his predecessors) did not cross Big Sandy Creek into the peninsula that
consists of Lot 139 and Lot 140.
Contrary to Appellant’s challenge, the meaning of the phrase “to the
center line of Big Sandy Creek” in the 1955 Trundle Deed was considered
and interpreted by the Trial Court after the presentation of proper
88 Appellant’s Br. at Tab 8 (1997 Deed).
89 App. Br. at p. 25; see also C.R. 181-93 at p. 4. (Finding of Fact No. 16).
32
evidence. 90 Without objection, both Smith and Crichton testified that they
interpreted the phrase “to the center line of Big Sandy Creek” to mean the
center of the portion of Big Sandy Creek to the west of Lot 140 or the
portion of the creek situated between Lots 52 and 140, and not across the
peninsula to the center line of that other portion of Big Sandy Creek
situated beyond Lot 140. 91
90 A court may construe an unambiguous deed or other written instrument as a matter
of law. French v. Chevron U.S.A., 896 S.W.2d 795, 796 (Tex. 1995); Boulanger v.
Waste Mgmt. of Tex., 403 S.W.3d 1, 6 (Tex. App. – Houston [1st Dist.] 2012, pet.
denied). “If the language is unambiguous, the court’s primary duty is to ascertain the
intent of the parties from the language of the deed by using the ‘four corners’ rule.”
Id. “The ‘four corners’ canon of construction means that the court must look at the
entire instrument to ascertain the intent of the parties.” Id. at 797. “The decision of
whether an ambiguity exists is a question of law.” Boulanger, 403 S.W.3d at 6. “If
the deed is worded in such a way that it can be given a definite or certain legal
meaning, then it is not ambiguous and the court will be confined to the writing.” Id.
“A mere disagreement about the proper interpretation of a deed, however, does not
make the deed ambiguous; the instrument is ambiguous only if, after application of
the rules of construction, the deed is reasonably susceptible to more than one
meaning.” Id. If the deed is ambiguous, then the court may consider the parties’
interpretations of the deed through extrinsic evidence. See id. at 5-6.
91 See R.R. 2:218:13 – 2:218:22, and R.R. 2:220:1 – 2:220:24 (Smith testifies that the
“gully” situated between Lot 52 and Lot 140 is “an arm of . . . [Big Sandy Creek]” and
serves as the boundary between Lot 52 and Lot 140); see R.R. 2:142:19 – 2:142:25,
and R.R. 2:162:10 – 2:163:7, and R.R. 2:202:7 – 2:204:20 (Crichton’s testimony
about how Lot 139, Lot 140 and the 1.4777-acre tract do not conflict with Lot 52 or the
Extended Property, how the “gully” is known as “Sandy Creek Arm,” how the “gully”
is “an arm or branch of Sandy Creek,” that the “gully” exists in between Lot 52 and
Lot 140, and how the border for the Extended Disputed Property lies in the center of
the “gully”); see also see also Def.s’ Exh. 20 (2005 Steger & Bizzell Survey, which
depicts the boundary of Lot 140 as running through the center of the “gully”), and
R.R. 5:3:7 – 5:3:8 (Defendants’ Exhibit 20 admitted into evidence); see also Def.s’
Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit 21 admitted
into evidence). Compare the foregoing, with R.R. 4:5:21 – 4:6:7 (Appellant’s closing
argument, wherein Appellant contends that the 1955 Trundle Deed designates a
section of Big Sandy Creek that is not the “gully” as the intended center line).
33
Lot 52 does not appear on the 1962 Plat – since Lot 52 is located on
the side of the creek opposite Lots 139 and 140, and because the 1962 Plat
was not intended to affect either Lot 52 or its purportedly extended
property, T.L. Smith had no reason to identify Lot 52 in the 1962 Plat. 92
This inference is supported by the record. 93 The 1962 Plat was never made
subject to the permission of Trundle or her successors in interest because
the 1962 Plat never touched upon Lot 52 or its extended property; 94 and so
there was no reason for the Trial Court to disregard the 1962 Plat.
Applying the same logic (or lack thereof), Appellant challenges
Finding of Fact No. 3, 95 on the basis that there is no evidence that T.L.
Smith “could record” the 1962 Plat, or whether T.L. Smith “could . . . show a
clear chain of title” for the 1962 Plat because Appellant wants to introduce
new evidence to suggest this plat was voidable. 96 Appellant also argues that
his challenge to the 1962 Plat also renders the subsequent conveyance of
92 See id. It is also worth noting that the 1947 Plat depicts the “gully” as being situated
between Lot 52 and Lot 56, with the latter eventually becoming, among other lands,
Lots 139 and 140 per the 1962 Plat. See Pltf.’s Exh. 2 (1947 Plat), and R.R. 3:2:7 –
3:2:8 (Appellant’s Exhibit 2 admitted into evidence); see Def.s’ Exh. 6 (1962 Plat),
and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6 admitted into evidence).
93 See id.
94 See id.
95 C.R. 181-93 at p. 3 (Finding of Fact No. 3).
96 Compare C.R. 181-93 at p. 3 (Finding of Fact No. 3), with Appellant’s Br. at p. 24
(challenge to “Item 3”).
34
Lot 140 voidable under the legal canon of nemo dat quod non habet. 97
Setting aside the unnecessary statements Appellant attempts to insert into
the findings, the uncontradicted evidence – admitted without objection –
demonstrates that the Travis County public records reflect that the 1962
Plat was filed of record in 1962, thereby creating Lots 139 and 140, which
were subsequently conveyed as noted in the Findings of Fact. 98
Accordingly, setting aside the illogical argument that the Trial Court’s
determination was flawed because it failed to consider “conclusive”
evidence that was never offered by Appellant, it is reasonable to conclude
that the Trial Court would afford little weight and credibility to Appellant’s
argument in light of the 1962 Plat, subsequent conveyances, and unrefuted
testimony regarding the location of the “center of Big Sandy Creek” with
respect to the properties at issue. 99
97 Appellant’s Br. at pp. 25-26.
98 See Def.s’ Exh. 6 (1962 Plat, which states the date of recordation with the Travis
County land records), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6 admitted into
evidence); Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds); R.R. 5:2:16 – 5:2:20
(Defendants’ Exhibits 11 and 12 admitted into evidence);
99 See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005) (explaining how
appellate courts should give great deference to the fact-finder’s decisions regarding
weight and credibility of testimony and the resolution of evidentiary conflicts).
35
B. Even if Appellant’s untimely evidence were
considered, Appellant nonetheless fails to
“conclusively” prove his ownership of the Extended
Disputed Property.
Appellant argues that “conclusive evidence” regarding a written
instrument is binding on the Trial Court; that the 1955 Trundle chain is
“binding” conclusive evidence of his ownership of the Extended Disputed
Property; and that it was reversible error for the Trial Court to disregard
such binding conclusive evidence in favor of other evidence that
contradicted Appellant’s claim of ownership. 100 The 1955 Trundle Deed
included the language “to the center line of Big Sandy Creek,” which the
Trial Court correctly interpreted in favor of Defendants as explained above
with respect to Finding of Fact No. 14. Additionally, the 1955 Trundle Deed
was not recorded until 1978, nearly sixteen years after the 1962 Plat was
recorded, thereby rendering TEHOA’s ownership claims senior to
Appellant’s per the Texas Recording Statute, TEX. PROP. CODE § 13.001. 101
Under the Texas Recording Statute, a bona fide purchaser prevails over
a holder of a prior unrecorded deed or other unrecorded interest in the
100 See Appellant’s Br. at pp. 23-24, 27.
101 Compare Pltf.’s Exh. 4 (1955 Trundle Deed), and R.R. 5:2:10– 5:2:11 (Appellant’s
Exhibit 4 admitted into evidence), with Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 –
5:2:16 (Defendants’ Exhibit 6 admitted into evidence).
36
same property; 102 and Conclusion of Law Nos. 44 and 45, which Appellant
has not specifically challenged in this appeal, state that TEHOA was a “bona
fide purchaser” of Lot 139 and the 1.4777-acre tract. 103 Notably, Appellant
does attempt to challenge the Trial Court’s findings that Defendants were
unaware of the potential conflict with Appellant’s purported property
rights. 104
Appellant’s challenge is also confusing because TEHOA never
purchased Lot 140; It only purchased and claimed ownership of Lot 139
and the 1.4777-acre tract. 105 The plain language of Finding of Fact No. 22
does not suggest otherwise. 106 This challenge is also incorrect and
unsupported because (a) the portion of the record that Appellant cites to in
support of his assertion is an excerpt from TEHOA’s closing arguments
addressing the unrelated issue of attorney fees, 107 (b) a non-existent portion
102 TEX. PROP. CODE § 13.001(a) (“A conveyance of real property or an interest in real
property or a mortgage or deed of trust is void as to a creditor or to a subsequent
purchaser for a valuable consideration without notice unless the instrument has
been acknowledged, sworn to, or proved and filed for record as required by law.”);
Noble Mort. Invs., LLC v. D&M Invs., LLC, 340 S.W.3d 65, 75-76 (Tex. App. –
Houston [1st Dist. 2011, no pet.) (“A bona fide purchaser is one who acquires
property in good faith, for value, and without notice, constructive or actual, of any
third party claim or interest.”).
103 C.R. 181-93 at pp. 7-8 (Conclusion of Law Nos. 45 and 46).
104 Appellant’s Br. at p. 26.
105 Def.s’ Exh. 17-18 (2008 Deed and 2008 Quitclaim), and 3:2:24 – 3:3:6 (Defendants’
Exhibits 17 and 18 admitted into evidence).
106 Compare C.R. 181-93 at pp. 4-5 (Finding of Fact No. 22), with Appellant’s Br. at p.
26 (challenging Finding of Fact No. 22).
107 Appellant’s Br. at p. 26 (citing TEHOA’s closing argument at R.R. 3:22:6 – 3:22:17).
37
of the Reporter’s Record; 108 and as explained with respect to Finding of
Fact No. 20, the testimony transcribed on page 34 of volume 3 of the
reporter’s record is evidence of nothing but a vague and ambiguous
statement by Roberts that she had at unspecified times observed Appellant
erecting gates to stop people from accessing unidentified property. 109
C. The Trial Court correctly determined the location and
metes and bounds of the property and road at issue.
Inexplicably, Appellant alleges that “no evidence at all” was presented
to the Trial Court to support findings regarding the location of the property
and road at issue. TEHOA acquired the 1.4777-acre tract from TLS
Properties under the 2008 Quitclaim. 110 Crichton testified that he used,
among other things, the property descriptions in the 2008 Quitclaim to
prepare his 2014 Land Survey. 111 The 2008 Quitclaim clearly describes the
1.4777-acre tract as adjoining Lot 139. 112. The 2014 Land Survey clearly
108 Appellant’s Br. at p. 26 (nonexistent record citation of line 35).
109 R.R. 3:34:22-3:34-25 (Roberts testimony)
110 See Def.s’ Exh. 18 (2008 quitclaim), and R.R. 5:3:5 – 5:3:6 (Defendants Exhibit 18
admitted into evidence).
111 See R.R. 2:150:13 – 2:151:5 (Crichton testifies that Defendants’ Exhibit 18 is “a
quitclaim deed from TLS Properties to Trails End Homeowners Association that
describes a tract that was unplatted but adjacent to the Trails End subdivision –
resubdivision No. 5 . . . [and] is a 1.4-acre tract that is described by metes and
bounds;” and that he used the property descriptions therein to prepare the 2014
Land Survey); see also R.R. 2:150:13 – 2:150:21 (Crichton testifies that Defendants’
Exhibit 18 “describes . . . [the 1.4777-acre tract] by metes and bounds”).
112 Def.s’ Exh. 18 at p. 3 (Addendum A of the 2008 Quitclaim Deed states, “Beginning at
the western most point of Lot 139 . . . follow the western line of Lot 139 N 58
degrees 53 minutes E to a point 122.81 feet from point of beginning. Said point is
38
depicts both Lot 139 and the 1.4777-acre tract as adjoining properties with
only West Darleen Drive running between them (West Darleen Drive,
including the portion known as West Darleen Drive Extension, are referred
to herein collectively as “West Darleen Drive”); and Crichton further
testified that West Darleen Drive was located adjacent to both Lot 139 and
the 1.4777-acre tract (i.e., the roadway runs through a portion of Lot 139
and the 1.4777-acre tract ). 113 This corresponds to the depiction of West
Darleen Drive in the 1962 Plat, which also shows the roadway as running
through Lots 139 and 140 and far from the portion of Big Sandy Creek
situated between Lots 52 and 140. 114 As Crichton testified, the 2014 Land
Survey was prepared using, among other things, pins in the ground and an
accurate and reliable GPS surveying device. 115 Finally, contrary to
also the intersection of the extension of the southern lot line of Lot 134 and the
western lot line of Lot 139.” (emphasis added)).
113 Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit 21
admitted into evidence); see R.R. 2:164:7 – 2:164:13 (Crichton’s testimony about the
location of West Darleen Drive Extension).
114 Compare Def.s’ Exh. (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6
admitted into evidence), with Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 –
5:3:9 (Defendants’ Exhibit 21 admitted into evidence); see also R.R. 2:162:10 –
2:163:7, and R.R. 2:202:7 – 2:204:20 (Crichton’s testimony about how Lot 139 and
the 1.4777-acre tract do not conflict with Lot 52 or the Extended Disputed Property,
how the “gully” is known as “Sandy Creek Arm,” how the “gully” is “an arm or branch
of Sandy Creek,” that the “gully” exists in between Lot 52 and Lot 140, and how the
border for the Extended Disputed Property lies in the center of the “gully”).
115 See R.R. 2:154:4 – 2:155:22 (Crichton testifies, in part, as to the preparation of the
2014 Land Survey, including the use of pins and GPS technology); see also R.R.
2:147:15 – 2:148:22, R.R. 2:150:6 – 2:151:5 (Crichton testifies that he also reviewed
39
Appellant’s assertion, Finding of Fact No. 2(f) does not establish that the
2014 Land Survey “show[s] the entirety of the [West Darleen Drive]
extension;” rather, it establishes that those portions of West Darleen Drive
depicted in the 2014 Land Survey are accurate, as evidenced by the
following statement: “West Darleen Drive is properly depicted in the 2014
Land Survey.” 116 Accordingly, the findings of fact which correspond to the
location of the properties and road at issue are supported with legally
sufficient evidence.
D. The conclusive evidence demonstrates Appellant
repeatedly and knowingly trespassed on TEHOA’s
property and the Trial Court appropriately enjoined
further trespass.
1. Appellant possessed Constructive and Actual Notice
In a series of illogical and unsupported assertions, Appellant
challenges the Trial Court’s conclusions of law related to the constructive
notice imputed upon Appellant as a result of the filing of certain public
records. 117 Specifically, Appellant claims that there could be no constructive
notice to him (or his predecessors) that Lot 52 was affected by the 1962 Plat
because the plat was “botched.” Therefore, (according to Appellant), the
the 1947 Plat, the 1962 Plat, the Steger & Bizzell Survey, the 2008 Deed, and the
2008 Quitclaim to prepare the 2014 Land Survey).
116 Compare Appellant’s Br. at p. 24 (challenge to “Item 2f”), with C.R. 181-93 at pp. 2-3
(Finding of Fact No. 2(f)).
117 Appellant’s Br. at p. 27-28 (challenging Items Nos. 40, 41, 43, and 44)
40
“botched” 1962 Plat prevented Appellant (and his predecessors) from
receiving notice of the claims by T.L. Smith in Lot 139, Lot 140, and the
1.4777 acre tract and further prevented notice of the subsequent filings of
the 1998 Deeds to TLS and 2008 Deeds from TLS to TEHOA.
All of these assertions are made by Appellant without any evidentiary
or legal support. As explained with respect to Finding of Fact No. 16, there
was no reason for the 1962 Plat to show the relationship between its
platting of Lots 139 and 140, on the one side, and Lot 52 (or even the
Extended Disputed Property), on the other side, because the evidence
establishes that there is no conflict between those properties. Moreover,
established legal authority further deems that Appellant and his
predecessors in title possessed constructive notice of Lot 139 and Lot 140,
as well as the 1.4777-acre tract, as early as 1962 when T.L. Smith recorded
the 1962 Plat in the Travis County, Texas land records. 118 Registration of
the 1962 Plat had “the force of notice of the adverse claim to the land.” 119
118 See TEX. PROP. CODE § 13.002; see Davis v. Howe, 213 S.W. 609, 610-11 (Tex.
Comm’n App. 1919, judgm’t adopted) (“The law of limitation of actions for land is
founded upon notice. The title by limitation ripens, primarily, only because, in such
manner and for such period of time as the different statutes require, notice is given
of the hostile claim. … ‘[A registered deed has], with its registration, distinct from
any office as a conveyance of title, the force of notice of the adverse claim to the
land.’”). See Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit
6 admitted into evidence).
119 See Davis, 213 S.W. at 611.
41
The assertion that “[t]here is no Lot 57 on the 1947 [P]lat” is also
incorrect because Lot 57 does in fact appear on the 1947 Plat. It its
referenced by the number “57,” which appears towards the center of the
1947 Plat, just to the right of the word “scenic” and above the notation “171
Ac.” 120
Moreover, Appellant does not offer any explanation, evidence or legal
support for his tortured syllogism that if the 1962 Plat was “botched,” and if
Appellant could not have known about the 1962 Plat because it was
“botched,” then Appellant could not have had constructive notice in or after
1998 about TLS Properties’ and TLS Operating’s respective claims of title to
Lot 140 – the only property which the Disputed Extended Property could
conflict – under the recorded 1998 Special Warranty Deeds (including the
1998 TLS Properties Deed). 121 Regardless of whether the 1962 Plat is
“botched,” it remains undisputed that Defendants’ deeds were recorded in
the Travis County land records no later than 1998; and those recordings
alone constituted constructive notice to the world of Defendants’ claims of
title. 122 Appellant failed to offer any evidence at trial to contradict the
120 See Pltf.’s Exh. 2 (1947 Plat), and R.R. 3:2:7 – 3:2:8 (Appellant’s Exhibit 2 admitted
into evidence).
121 Compare Appellant’s Br. at p. 28 (Appellant’s challenge to Conclusion of Law No.
43), with C.R. 181-93 at p. 7 (Conclusion of Law No. 43).
122 See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
(Defendants’ Exhibits 11 and 12 admitted into evidence). See Davis v. Howe, 213
42
descriptions of the properties in those recordings. 123 Thus, as a result of
each recording, Appellant had constructive notice no later than 1998 that
Defendants (and their predecessors in title) claimed ownership in Lots 139,
Lot 140, and the adjoining 1.4777 acre tract by title or color of title.” 124
Furthermore, despite his unsupported denials to the contrary,
Appellant had actual and constructive notice of the 1962 Plat extension of
West Darleen Drive (the unpaved portion). 125 First, Appellant admitted
that he knew about the existence, use and additional construction of West
Darleen Drive as a public road as early as 1997; and that he could identify
West Darleen Drive in the 1962 Plat, which was recorded in 1962. 126 Thus,
there is legally sufficient evidence that Appellant had both actual and
constructive knowledge of West Darleen Drive (including any unpaved
portions) running through Lots 139 and 140. 127 Equally important, none of
S.W. 609, 610-11 (Tex. Comm’n App. 1919, judgm’t adopted) (“The law of limitation
of actions for land is founded upon notice. The title by limitation ripens, primarily,
only because, in such manner and for such period of time as the different statutes
require, notice is given of the hostile claim. … ‘[A registered deed has], with its
registration, distinct from any office as a conveyance of title, the force of notice of the
adverse claim to the land.’”).
123 See Appellant’s Br. at p. 28 (Appellant’s challenge to Conclusion of Law No. 43 and
44).
124 See C.R. 181-93 at p. 7 (Conclusion of Law No. 43); see also Def.s’ Exh. 11, 12 (1998
Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20 (Defendants’ Exhibits 11 and 12
admitted into evidence). See Davis, 213 S.W. at 610-11.
125 Appellant’s Br. at p. 26 (challenging Item No. 20).
126 R.R. 2:109:17-2:113:22, R.R. 2:111:4-2:111:7.
127 See also TEX. PROP. CODE § 13.002, and Davis v. Howe, 213 S.W. 609, 610-11 (Tex.
Comm’n App. 1919, judgm’t adopted) (“The law of limitation of actions for land is
43
Appellant’s “evidence” supports his challenge to the sufficiency of the Trial
Court’s findings. For example, he cites vague, convoluted, and self-serving
passages in his trial testimony that actually establish nothing. 128 Appellant
also references citations that either fail to address the issue of notice or
simply do not exist. 129 Although Appellant could not identify where he
initially erected his blockade, he conceded “these are slightly off my
property now….” Appellate courts should give great deference to the fact-
finder’s decisions regarding weight and credibility of testimony and the
resolution of evidentiary conflicts; 130 and such deference favors a holding
that Finding of Fact No. 20 is legally sufficient.
Finally, it cannot be said that Appellant “defended any notice
vigorously.” Again, Appellant testified that he had actual knowledge about
the existence, use and additional construction of West Darleen Drive as a
public road in the Darleen’s Landing area since as early as 1996 or 1997. 131
But he waited until 2010 to file the underlying lawsuit; 132 and never alleged
founded upon notice. The title by limitation ripens, primarily, only because, in such
manner and for such period of time as the different statutes require, notice is given
of the hostile claim. … ‘[A registered deed has], with its registration, distinct from
any office as a conveyance of title, the force of notice of the adverse claim to the
land.’”).
128 Appellant’s Br. at p. 26 (citing to R.R. 2:87:5 – 2:87:8, and R.R. 2:87:17 – 2:87:21).
129 Appellant’s Br. at p. 26 (citing to R.R. 3:22:6 – 3:22:14 and R.R. 3:34:35).
130 See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005).
131 R.R. 2:109:17 – 2:113:8 (Appellant testimony).
132 C.R. 3-6 (Plaintiff’s Original Petition filed Nov. 1, 2010).
44
any affirmative defenses – whether for limitations, laches, or otherwise – to
any of TEHOA’s counterclaims, including those concerning 133 West Darleen
Drive.
2. Appellant Repeatedly Trespassed on Defendant’s Lands.
To establish a claim against Appellant for trespass, TEHOA was only
required to prove the following: (1) TEHOA owned or had a lawful right to
possess the subject real property; (2) Appellant physically, intentionally,
and voluntarily entered onto the subject real property; and (3) said entry
caused injury to TEHOA’s right of possession to the subject real
property.” 134 The evidence establishes that TEHOA owned Lot 139 and the
1.4777-acre tract under the 2008 Deed and 2008 Quitclaim, respectively; 135
that, as established above with respect to Finding of Fact No. 26, Appellant
did not have TEHOA’s permission to block West Darleen Drive; 136 and that,
as explained with respect to Finding of Fact Nos. 24, Appellant physically,
intentionally, and voluntarily entered on Lot 139 and/or the 1.4777-acre
133 R.R. 2:163:14 – 2:164:13 (Crichton testifies that neither the gate nor the rocks were
on Lot 52 when he visited the property, but rather the rocks were “in the right-of-way
for West Darleen” that is adjacent to Lot 139 and the 1.4777-acre tract).
134 E.g., Tex. Women’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 286 (Tex. App. –
Houston [1st Dist.] 2006, no pet.) (trespass elements).
135 Def.s’ Exh. 17, 18 (2008 Deed and 2008 Quitclaim), and R.R. 5:2:24 – 5:2:25, 5:3:5
– 5:3:6 (Defendants’ Exhibits 17 and 18 admitted into evidence).
136 Also, Appellant does not seem to specifically challenge on appeal the particular
finding in Finding of Fact No. 26 that, “Plaintiff did not have the Association’s
permission to construct the above-described blockade.” C.R. 181-93 at p. 5 (Finding
of Fact Nos. 26); see Appellant’s Br. at pp. 23-28 (Appellant’s challenge to Finding of
Fact No. 26).
45
tract to access the portion of West Darleen Drive to erect his blockade,
which was situated, in part, on the roadway’s adjoining properties, among
them the 1.4777-acre tract.
Despite Appellant’s assertion to the contrary, 137 the evidence at trial
established that Appellant admitted to erecting the blockade on West
Darleen Drive; 138 part of the blockade existed for “three, four years;” 139
photographic evidence of the blockade; 140 and Appellant’s admission that
he moved his blockade off his property and onto the adjacent roadway.
Any argument that the Trial Court’s findings with respect to the existence of
the blockade, Appellant’s intentional trespass, or its resulting injury is
wholly without merit and should be overruled. 141
Equally absurd is Appellant’s position that there is insufficient
evidence to the finding that the TLS Defendants and/or their successors
could have owned Lot 140 142 because the evidence establishes that Lot 52
and the Extended Disputed Property do not conflict with Lot 140. The
evidence also establishes that that TLS Properties and its predecessors in
137 Appellant’s Br. at p. 28 (citing to R.R. 2:113:9 – 1:114:22, R.R. 2:236:3 – 2:236:7,
R.R. 3:34:35, Pltf.’s Exh. 4, and Def.s’ Exh. 6).
138 See R.R. 2:113:9 – 1:114:22 (Appellant testimony).
139 See R.R. 2:236:3 – 2:236:7 (Roberts testimony).
140 R.R. 3:34:35; see Def.s’ Exh. 81 (photograph).
141 Appellant’s Br. at 26-27 (challenging Findings of Fact Nos. 18, 20, 21, 23, 24, 26, 27,
28 and Conclusion of Law No. 55).
142 Appellant’s Br. at 27 (challenging Findings of Fact No. 28).
46
interest were, at all relevant times, the deed record owners of Lot 140. 143
Finally, evidence such as the 2004 Lease between TLS Properties and
TEHOA and the uncontroverted testimony of Smith establish that TLS
Properties and its predecessors in interest had granted TEHOA and its
members permission since at least 1994 to access Lot 140. 144 This finding is
further supported by Appellant’s failure to specifically challenge on appeal
the finding No. 8 that, “During the entire time when it owned Lot 140, and
through the present, . . . TLS Properties leased the property to the
Association . . . .” 145
Finally, Appellant challenges the Trial Court’s conclusion that
Appellant should be permanently enjoined from trespassing onto property
that was determined to be owned by Defendants and in which Appellant
failed to demonstrate any ownership rights. 146 As the Trial Court correctly
found that (a) Appellant failed to establish ownership of Lot 139, Lot 140,
143 See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
(Defendants’ Exhibits 11 and 12 admitted into evidence); see R.R. 2:212:2 – 2:214:2,
and 2:215:6 – 2:217:9, and 2:221:21 – 2:222:9 (Smith testimony, wherein he
explains, without objection, the ownership and leasing history for Lot 139, Lot 140
and the 1.4777-acre tract).
144 See Def.s’ Exh. 13 (2004 Lease for Lots 139 and 140), and R.R. 5:2:21 – 5:2:23
(Defendants’ Exhibit 13 admitted into evidence); see R.R. 2:218:1 – 2:218:12 (Smith
testifies about TEHOA’s property leases with TLS Properties since 1994).
145 C.R. 181-93 at p. 3 (Finding of Fact No. 8); see Appellant’s Br. at pp. 23-28
(Appellant’s specific challenge to Finding of Fact No. 8 does not address the issue).
146 Compare Appellant’s Br. at p. 28, with C.R. 181-93 at p. 9 (Conclusion of Law No.
56).
47
and/or the 1.4777-acre tract; and the evidence establishes that neither Lot
52 nor the Disputed Extended Property conflicts with Lot 139, Lot 140, or
the 1.4777-acre tract; 147 (b) Lots 139 and the 1.4777-acre tract are owned by
TEHOA 148 and Lot 140 is owned by TLS Properties; 149 (c) Appellant
admitted to erecting the blockade on West Darleen Drive, 150 which TEHOA
explained prevented the use and enjoyment of its property by its
members; 151 and (d) West Darleen Drive is a public right-of-way easement
that runs through Lots 139 and 140. 152
While Appellant argues that no evidence ever identified continual use
of West Darleen Drive across Lot 140, 153 Appellant actually admitted to
knowing of West Darleen Drive’s use as a public road since as early as
1997. 154 Furthermore, the use of Lot 139, Lot 140 and the 1.4777-acre tract
by TEHOA and its members as a boat launch, preserved area and/or
parklands has been occurring since 1994. 155
147 Supra, at pp. 17-19.
148 See Def.s’ Exh. 17, 18 (2008 Deed and 2008 Quitclaim), and R.R. 5:2:24 – 5:2:25,
5:3:5 – 5:3:6 (Defendants’ Exhibits 17 and 18 admitted into evidence).
149 See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
(Defendants’ Exhibits 11 and 12 admitted into evidence).
150 See R.R. 2:113:9 – 1:114:22 (Appellant testimony).
151 See R.R. 2:239:12 – 2:239:22 (Roberts testimony).
152 Infra, at p. 52.
153 Appellant’s Br. at p. 26 (challenge of Finding of Fact No. 21).
154 R.R. 2:109:17-2:113:22, R.R. 2:111:4-2:111:7.
155 Supra, at pp. 26-27.
48
Despite his knowledge, as evidenced by the 2014 Land Survey,
photographs, and Crichton’s testimony, Appellant obstructed the portion of
West Darleen Drive that leads into Lot 140. 156 The 2014 Land Survey and
Crichton’s testimony established that Lot 139 and the 1.4777-acre tract are
adjoining properties with West Darleen Drive running through them and
into Lot 140. 157 And while Appellant admits that he “tried to block access to
. . . [his] property for years” with the blockade, 158 the 2014 Land Survey, the
photographs admitted into evidence, and Crichton’s testimony contrarily
establish that Appellant’s blockade obstructed the portion of West Darleen
Drive that leads into Lot 140, and that Appellant’s obstruction was situated,
in part, on the roadway’s adjoining properties, among them the 1.4777-acre
156 Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’ Exhibit 21
admitted into evidence); see R.R. 2:163:14 – 2:164:13 (Crichton testimony); see
Def.s’ Exh. 81-84 (photographs of West Darleen Drive with and without
obstructions); see R.R. 5:3:15 – 5:3:19 (admission of Defendants’’ Exhibits 81-84 into
evidence); see, e.g., Def.s’ Exh. 82, R.R. 2:232:1 – 2:232:14, R.R. 2:233:12 – 2:233:16
(Roberts testifies without objection that Defendants’ Exhibit 82 is a photograph
portraying West Darleen Drive). For this reason, there is sufficient evidence to
support Finding of Fact Nos. 23 and 24.
157 See Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit
21 admitted into evidence); see R.R. 2:164:7 – 2:164:13 (Crichton’s testimony about
the location of West Darleen Drive Extension); see R.R. 2:163:14 – 2:164:13
(Crichton testimony).
158 See R.R. 2:113:9 – 2:114:22 (Appellant testimony, with reference to “th[e] road that’s
depicted in both Defendants’ Exhibit 21 and Defendants’ Exhibit 6,” namely, West
Darleen Drive); see also Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16
(Defendants’ Exhibit 6 admitted into evidence); see also Def.s’ Exh. 21 (2014 Land
Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’ Exhibit 21 admitted into evidence).
49
tract. 159 Thus, it is reasonable to infer that Appellant had to physically,
intentionally, and voluntarily entered onto Defendant’s lands in order to
erect his blockade. Appellant’s blockade restricted the TEHOA’s ability to
make full use and enjoyment of Lot 139 and the 1.4777-acre tract, 160 as
established by Roberts’ uncontroverted testimony. 161 It is undisputed that
Appellant did not have TEHOA’s permission to block access to West
Darleen Drive, 162 which Appellant does not specifically challenge on
appeal. 163
3. TEHOA Established its Superior Right to Utilize West
Darlene Drive
In addition to the foregoing, TEHOA also satisfied its burden for a
declaration that West Darleen Drive is a public right-of-way over which it
159 Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’ Exhibit 21
admitted into evidence); see R.R. 2:163:14 – 2:164:13 (Crichton testimony); see
Def.s’ Exh. 81-84 (photographs of West Darleen Drive with and without
obstructions); see R.R. 5:3:15 – 5:3:19 (admission of Defendants’’ Exhibits 81-84 into
evidence); see, e.g., Def.s’ Exh. 82 and R.R. 2:232:1 – 2:232:14 and R.R. 2:233:12 –
2:233:16 (Roberts testifies without objection that Defendants’ Exhibit 82 is a
photograph portraying West Darleen Drive).
160 C.R. 181-93 at p. 5 (Finding of Fact No. 27) (emphasis added).
161 See R.R. 2:231:2 – 2:231:22, and R.R. 2:239:12 – 2:239:22 (Roberts testifies about
the necessity for injunctive relief against Appellant, how TEHOA purchased Lot 139
and the 1.4777-acre tract for its members, and how TEHOA and its members “have
not been able to take advantage of . . . [Lot 139 and the adjoining 1.4777-acre tract
since the time when the Association purchased those properties for its members]
because it has been blocked off [by Plaintiff’s blockade].”).
162 See R.R. 3:239:5 – 3:239:22 (Roberts testimony explaining the reason why TEHOA
is seeking injunctive relief against Appellant with respect to Appellant’s blockade).
163 C.R. 181-93 at p. 5 (Finding of Fact Nos. 26, which states that “Plaintiff did not have
the Association’s permission to construct the above-described blockade.”); see
Appellant’s Br. at pp. 23-28 (Appellant’s specific challenge to Finding of Fact No. 26
does not address the issue).
50
and its members have the right to travel fully and freely. 164 And as
explained with respect to Finding of Fact No. 16, West Darleen Drive does
not conflict with, or go “over Lot 52.” 165 Additionally, Appellant admitted
that he knew West Darleen Drive was a “public road” since at least 1997
(more than twelve years before Appellant filed this lawsuit); 166 and that
West Darleen Drive appears on the 1962 Plat recorded way back in 1962, 167
and conceded he attempted to blockade West Darleen Drive. 168 Trial
evidence also reflected that TEHOA intended to continue making
recreational use of the lands but for Appellant’s blockade of West Darleen
Drive; 169 and that TEHOA made written demand to Appellant for the
removal of his blockade, 170 before filing counterclaims in this lawsuit. 171
164 Compare Appellate Brief at p. 28 (challenge to conclusion of Law No. 52), with C.R.
181-93 at pp. 8-9 (Conclusion of Law No. 52).
165 Supra, at pp. 17-19.
166 See R.R. 2:109:17 – 2:109:24 and 2:110:19 – 2:110:22 (Appellant admits in his
testimony that West Darleen Drive Extension, as depicted in the 1962 Plat and 2014
Land Survey, is “a public road”).
167 R.R. 2:110:19 – 2:110:22 (Appellant admits that West Darleen Drive Extension is
depicted in the 1962 Plat); see Def.s’ Exh. 6 (1962 Plat, which shows West Darleen
Drive extending through Lots 139 and 140), and R.R. 5:2:14 – 5:2:16 (Defendants’
Exhibit 6 admitted into evidence); see C.R. 3-6 (Plaintiff’s Original Petition filed
Nov. 1, 2010).
168 See, e.g., R.R. 2:113:9 – 2:114:22 (Appellant testimony).
169 R.R. 2:231:2 – 2:231:22 (Roberts testimony).
170 See R.R. 2:236:25 – 2:237:5 (Roberts testimony).
171 See, e.g., C.R. 10-36 at ¶¶ 6.01-6.05 (Association’s counterclaim for permanent
injunctive relief).
51
Based on the foregoing evidence alone, TEHOA satisfied its burden of
establishing West Darleen Drive as a prescriptive right-of-way easement.
To establish a prescriptive easement, which is an easement created by “the
claimant’s adverse actions under a color of right,” TEHOA was only
required to show the use of Appellant’s purported land “in a manner that is
open, notorious, continuous, exclusive, and adverse for a period of ten years
or more.” 172 TEHOA did just that, and Appellant has failed to offer any
evidence or legal authorities to the contrary.
In addition, the evidence supports a finding that West Darleen Drive
is a public right-of-way easement by express and/or implied dedication. As
previously explained by this Court, “‘Dedication’ is the act of appropriating
private land to the public for any general or public use.” 173 “Once
dedicated, the owner of the land reserves no rights that are incompatible
with the full enjoyment of the public.” 174 To prove an easement by implied
dedication, TEHOA was only required to show that: (a) the acts of T.L.
Smith (as the owner of the lands giving rise to the 1962 Plat) induced the
belief that he intended to dedicate the road to public use; (b) T.L. Smith
owned the land in fee simple and therefore was competent to dedicate the
172 Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App. – Austin 1998, pet. denied).
173 Id. at 718.
174 Id.
52
land; (c) the public relied on those acts and will be served by the dedication;
and (d) there was an offer and acceptance of the dedication. 175 The record
establishes just that. As explained throughout, T.L. Smith owned the lands
re-platted by the 1962 Plat, and had the right to re-plat those lands; 176 the
1962 Plat’s depiction of West Darleen Drive as “W. Darleen Extension” and
as running through Lots 139 and 140 suggest that T.L. Smith intended for a
public road; 177 Appellant testified that he had actual notice of West Darleen
Drive’s existence and use as a “public road” since at least 1997 (more than
ten years before Appellant filed the underlying lawsuit in late 2010); 178
Appellant further testified that West Darleen Drive’s pavement had been
extended by “[t]he County;” 179 as explained with respect to Finding of Fact
No. 40, Appellant and his predecessors in title had constructive notice of
the 1962 Plat since 1962; 180 Roberts testified that TEHOA and its members
used West Darleen Drive as the means of accessing Lots 139 and the 1.4777-
175 Id.
176 See R.R. 2:212:2 – 2:214:2, 2:215:6 – 2:217:9, 2:221:21 – 2:222:9 (Smith testimony,
wherein he explains, without objection, the ownership and leasing history for Lot
139, Lot 140 and the 1.4777-acre tract); see also Def.s’ Exh. 6 (1962 Plat, which
identifies T.L. Smith, Jr. as an owner of the re-platted property), and R.R. 5:2:14 –
5:2:16 (Defendants’ Exhibit 6 admitted into evidence).
177 See Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6
admitted into evidence).
178 See R.R. 2:109:17 – 2:109:24, 2:110:19 – 2:110:22 (Appellant admits that West
Darleen Drive Extension, as depicted in the 1962 Plat and 2014 Land Survey, is “a
public road”).
179 R.R. 2:110:7 – 2:110:12 (Appellant testimony).
180 Supra, at p 24, pp. 40-43.
53
acre tract; 181 and there was an offer and acceptance of the dedication
through the conveyances of Lots 139, 140 and the 1.4777-acre track to
TEHOA and/or TLS Properties. 182 Thus, the evidence supports a finding
that West Darleen Drive is a public right-of-way easement by express
and/or implied dedication. For this additional reason, the Trial Court’s
award of a permanent injunction to prevent Appellant from any further
obstruction or interference with TEHOA’s ingress and egress over West
Darleen Drive was proper and should not be disturbed by this Court.
E. This Court should disregard Appellant’s arguments
which rely on Appellant mischaracterization of the
trial record.
The following addresses several instances in which the Appellate Brief
mischaracterizes the trial record. The Court should disregard each of
Appellant’s arguments which rely on those mischaracterizations.
On page 9 of the Appellate Brief, Appellant states: “Crichton
references a ‘pin 13’ in finding the supposed northwest corner of Lot 52, but
at no point on any plat or prior survey is pin 13 identified. [R.R. 2:152:22 –
R.R. 2:153:5.]” 183 This assertion is incorrect because “pin 13” appears in the
181 See R.R. 2:231:2 – 2:231:22, 2:239:12 – 2:239:22 (Roberts testimony).
182 See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
(Defendants’ Exhibits 11 and 12 admitted into evidence); see Def.s’ Exh. 17, 18 (2008
Deed and 2008 Quitclaim), and R.R. 5:2:24 – 5:2:25, 5:3:5 – 5:3:6 (Defendants’
Exhibits 17 and 18 admitted into evidence).
183 Appellant’s Br. at p. 9.
54
2014 Land Survey, which was prepared by Crichton and admitted into
evidence without objection. 184 The 2014 Land Survey references “pin 13” by
the number “13,” which appears right-adjacent to a dot drawn on the
exhibit’s illustration of the top-left corner of Lot 52 (identified in the 2014
Land Survey by the notation “52”). 185 To help illustrate this point, an
enlargement of this section of the 2014 Land Survey is attached hereto as
Tab C. And since Appellant did not object to the visual clarity or
appearance of “pin 13” on the 2014 Land Survey, he has waived his right to
do so on appeal. 186 Thus, this Court should disregard each of Appellant’s
arguments which rely on Appellant’s mischaracterization of “pin 13.”
F. This Court should affirm the award of attorney fees to
TEHOA as a result of Appellant’s unsuccessful appeal.
Among other things, the Final Judgement awards TEHOA
$20,000.00 for attorney fees incurred in connection with Appellant’s
unsuccessful appeal of the lawsuit to this Court, together with post-
184 See Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’
Exhibit 21 admitted into evidence); see also R.R. 2:151:21 – 2:154:9 (Crichton
identifies “pin 13” on Defendant’s Exhibit 21, and then testifies that pin 13
establishes the intended location of the northwest corner of Lot 52).
185 See Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’
Exhibit 21 admitted into evidence).
186 See, e.g., TEX. R. APP. P. 33.1(a) (generally, to preserve error for appeal, the record
must show that the error was brought to the trial court’s attention by a timely
request, objection or motion). See also R.R. 2:153:21 – 2:154:3 (Crichton testifies
about the location of “pin 13” without objection).
55
judgment interest thereon. 187 This Court should affirm this award, as well
as all other attorney fee and interest awards to TEHOA rendered in the
Final Judgment, because Appellant has failed to challenge them on appeal,
and, as argued herein, Appellant should not succeed in his appeal of the
lawsuit to this Court.
CONCLUSION AND PRAYER
For the reasons set forth in the Findings of Fact and Conclusions of
Law, Defendants were entitled to dismissal of all claims asserted by
Appellant and for a judgement in their favor. A review of the Trial Court
evidence, including Appellant’s admissions, reflects that the Trial Court’s
judgment was not in error. Appellant offered no competent or admissible
evidence to support its claims, nor did Appellant contradict the evidence
supplied by Defendants. Accordingly, Defendants request that this Court
overrule Appellant’s issues and challenges, affirm the Findings of Fact and
Conclusions of Law supporting the Trial Court’s judgment, and render
judgment against Appellant. Defendants further request any and all other
relief to which it may be entitled.
187 C.R. 91-109 at pp. 3-4 (Final Judgment’s attorney fee and interest awards).
56
Respectfully submitted,
JACKSON WALKER L.L.P.
By: /s/ Christopher R. Mugica
Christopher R. Mugica
State Bar No. 24027554
cmugica@jw.com
Emilio B. Nicolas
State Bar No. 24058022
enicolas@jw.com
Jackson Walker L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
(512) 236-2000
(512) 236-2002 – Fax
ATTORNEYS FOR APPELLEES
TRAILS END HOMEOWNERS
ASSOCIATION AND VAN
KEENE
57
RULE 9.4 CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R.
APP. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of TEX. R. APP. P. 9.4(i), if
applicable, because it contains 14,335 words, excluding any parts exempted
by TEX. R. APP. P. 9.4(i)(1).
/s/ Christopher R. Mugica
Christopher R. Mugica
58
CERTIFICATE OF SERVICE
This is to certify that on this 22nd day of May, 2015, a true and correct
copy of the above and foregoing document was electronically mailed to the
parties registered or otherwise entitled to receive electronic notices in this
case pursuant to the Electronic Filing Procedures in this Court and/or via
certified mail, return receipt requested upon:
Stephen Casey Derek Quick
Casey Law Office, P.C. Strasburger & Price, LLP
595 Round Rock West Drive 720 Brazos Street, Suite 700
Suite 102 Austin, Texas 78701
Round Rock, Texas 78681 derek.quick@strasburger.com
stephen@caseylawoffice.us Counsel for Appellees TLS
Counsel for Appellant David Properties, Ltd. and TLS
Young Operating Company, LLC
W. Thomas Buckle Rick Durapau, Pro Se
Jeff Tippens 11907 Misty Brook Drive
State Bar No. 24009121 Austin, Texas 78727
Scanalan, Buckle & Young, P.C. rdurapau@gmail.com
602 West 11th Street Pro Se Appellee
Austin, Texas 78701
tbuckle@sbylaw.com
jtippens@sbylaw.com
Counsel for Appellee Trails
End Homeowners
Association, Inc.
/s/ Christopher R. Mugica
Christopher R. Mugica
59
NO. 03-14-00535-CV
___________________________________________________
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AT AUSTIN, TEXAS
___________________________________________________
David Young,
Appellant,
v.
Trails End Homeowners Association, Inc., TLS Properties, Ltd.,
TLS Operating Company, LLC, Van Keene, and Rick Durapau,
Appellees.
On Appeal from the 200th Judicial District Court of Travis County, Texas
(Honorable Scott H. Jenkins, of the 53rd Judicial District Court, Presiding)
Trial Court Cause No. D-1-GN-10-003864
___________________________________________________
APPENDIX
TAB A 2005 Steger & Bizzell Survey
TAB B 2014 Land Survey
TAB C Enlargement of “pin 13” of the 2014 Land Survey
12389315v.8
60
TAB A
'~1
LEGEND
"- o.\Oc'f-
'-' .o"
'J' .... ~,,,
e - IRON PIN FOUND
.. o" '0-o·sv-o"' 0 - IRON PIN SET
6,--~'"'' «.P0 ".:1'0
«--e"'0'0\~o~"' \'01
SCALE: 1"= 100'
LCRA Records
Lake Travis Elevation
9/13/1962 655.2
52
T. David Young
12871/411 con tour
l
-ip.OrO~·
l0cot; ;~ote
~
'-..
0
C't.r/1,- ~----
Note: 655.2 Contour and location of gully \_ f....,;~..., 7::;,.. ~.""'.....,~ ""' l.OAl' Brian F. Pet.eraon Surveyon
r~- r~
(512)1l0-t411(512)8JG-t411
(L;\ li:N) Drow~\ 20762-Tral'e fnd-13i-HO\ bose.dwg.) JOB No. 20782
R£II1EWED BY': BFP APPROVE.OB'f: llfP
TEHOA 00 191
TAB B
GRAPHIC SCALE
(Ill PUf )
I ~Deb.~ .0 tt.
TEHOA 00544
=~:t.:(t:~~J~i:~[OM SJAT[ pt.Afj[ COOftDIMAf(5
DYCJI[[It
/ ~z._
~LH'(": ~CEHTU I
~,f' ----------- RESUBDIVISION NO. 5, BLOCK 57, mAILS END SUBDIVISION
{VOLUME IQ..f'!C[ J6) LOT~ / _ . / _ /
,'fj•' ---!!1:~z•.:c
,, ----- / ~:>"
.... .... -<- __
/
·'
.,, e'"'
;f/ 1 orl / -'
st45\ .1$-v" LOT 1)9
...;":'::;."""
DTCJIU k //1 TR'Zi%"-'OUr
.us£.~DiKJI1UJor
""""'" ~o~r or f.y:r _,- ",..h /
}-6-__ / ~ TRAO'WN(Rs -~, HOl.IE~~i~iN~SSOC.
~r.J£ . ,. . . (DOC. NO. 2008167<492)/
---- L cr.
.--~ -w lJ~ ,. . . . . ..~ 0.9990 ACRES ,'
- -;;,:~~~~~~~:;;;;----- -:;~ti.i"" ttt$~ _,. .,. ,. . . . . -- \, /
_c'f P" .,. . . "" LOT 140 \ .... •6- - ---4 7.
/
i ---,v.: -'' \ /,
:,, . . . ,...~,1-z,-;;...----- , :s'. . .
/, • -"" cx""i:r...·:.:r~,:.::o-ii-~~,..,.~-----
LOT 140 /
52
SURVEY SHOWING RELATIONSHIP OF THE WESTERN
EXTENSION OF THE NORTH LINE OF LOT 52 OF TRAILS END
LAKE TRAVIS SUBDIVISION RECORDED IN VOL. 4 PG. 331 OF
THE TRAVIS COUNTY PLAT RECORDS WITH THE CENTER OF
SANDY CREEK . LEGEND
•rr rROH Pf