The opinion
March 13, 2015
03-14-00621-CV
COURT OF APPEALS
THIRD DISTRICT
AUSTIN, TEXAS
FRANK SELIGER: APPELLANT
THE ETHIOPIAN EVANGELICAL CHURCH: APPELLEE
An appeal from the County Court, at law number 2
Austin, Texas
BRIEF FOR THE APPELLANT
Frank Seliger
2108 East Yager Ln.
Austin, Texas 78754
(512)619-3493
Representing himself: pro se
IDENTITY OF PARTIES AND COUNSEL:
Appellant/Plaintiff f RECEIVED
J MAR 13 2015
Frank Seliger XSg"'
2108 East Yager Ln.
Austin, Texas 78754
Counsel for the Appellant:
Frank Seliger
Representing himself/pro se
Appellees/Defendant
The Ethiopian Evangelical Church
Counsel for the Appellee:
James Minerve
Minerve Law Firm, Attorney
115 Saddle Blanket Trail
Buda, Texas 78610
Table of Contents
Page
IDENTITY OF PARTIES AND COUNSEL i
INDEX OF AUTHORITIES ii
STATEMENT OF THE CASE iii
1.) A short statement regarding the fact that I am representing myself— pro se-- and I am
seeking the Court of Appeals' patience and understanding.
2.) A request: The opposition may try to confuse this appeal by bringing up the details of the
case... unrelated to the improper actions and or errors of the Judge. If they bring up topic
related to "Parol Evidence" or the issue of "Clarity " in the contract - it is an attempt to
drag the Appeals Court into the minutia of the overall case— and a host of false
assertions.
ISSUES PRESENTED iv
1.) Did the County Court Judge err— by inventing imposing an improper trial structure;
designed to exclude pertinent evidence, to limit or entirely stop legal arguments and
objections from the Plaintiff, Frank Seliger. If so... what was this structure... and how
was it applied?
2.) Was there a SPECIFIC document that Frank Seliger tried to submit to the court... and
was that document improperly excluded by the Judge.
3.) Why was that document critical to Frank Seliger's case?
4.) Did the County Court Judge explain or justify the exclusion of the critical document (to
the jury and the other participants in the trial). Was that explanation in accordance with
the Texas Rules of Civil Procedure ?
STATEMENT OF FACTS 1
1.) What does the Texas Rules of Evidence say- with regard to what evidence is "proper";
and therefore should not be excluded from the evidence that the jury may consider?
2.) Did the specific evidence that was excluded by the Judge in the trail... qualify as proper
evidence—according to the Texas Rules of Evidence?
SUMMARY OF ARGUMENT 2
STANDARD OF REVIEW 3
ARGUMENT 4
CONCLUSION (relief sought) 5
APPENDIX 6
CERTIFICATE OF SERVICE 7
INDEX OF AUTHORITIES
STATEMENT OF THE CASE
1.) The Plaintiff wishes the court to understand that he is representing himself to the
court in this Appeal as pro-se; Please excuse any errors I might make in this
document... I will do my best to abide by the court's legal expectations as I
understand them.
2.) I sincerely respect for the Court's mandate... to limit its inquiry to evaluating
accusations of Judicial impropriety and error... I will refrain from discussing the
minutia and the very divergent legal arguments involved in this case. However, I am
very concerned that my legal opponent (the Appellee's attorney) will not refrain from
doing this.
3.) An overview of the case: This is a contractual dispute between two parties. The
contract is a lease agreement... that both parties negotiated and signed. I (the
Defendant in that case) was the Leasee —and the Ethiopian Evangelical Church was
the Plaintiff in that case... represented by their legal representative. The negotiator
and the writer of the lease—was a woman named Lem Lem Berhane—who is part of
the Church's administration. Lem Lem is not a native English speaker —and has no
training in legal matters. Not being skilled in the language or the law.. .she lifted a
leasing contract (almost verbatim from the web) from a web site called
RocketLawyer.com. Lem Lem testified under oath that she faithfully put all of the
elements that both sides said they wanted (prior to the writing of the contract) into the
contract. How she accomplished this - was the main subject of 6 hour trial.
But... Before the dispute became formal... Lem Lem wrote a letter (I will henceforth
refer to it as "Lem Lem's Letter) to the Justice Court... and in that letter, she made
two statements that addressed critical topics that both parties agreed to (prior to the
writing of the contract. These statements are central to the Appellant's legal
argument in this dispute. That letter was entered into the court record when this
dispute was in the Justice Court. That letter in the record— followed the dispute as it
made its way into the County Court.
During the trial in the County Court (that is the subject of this appeal— when I tried to
enter Lem Lem's letter into evidence... Mr. Minerve (The Appellee's new legal
representative) strongly objected to the letter's introduction because it contradicts the
false—but effective -legal strategy that he has devised. Judge Phillips excluded the
letter. And the way he excluded it is so odd- and divergent from standardjudicial
protocol—that it deserves judicial review in the Appeals process.
Thejudical exclusion of evidence... which was so obviously and legally appropriate -
- forms the basis for this appeal.
STATEMENT OF FACTS
The court should note that I have not described the points of contention in the
disputed contract. That information is not relevant to this appeal. The foundation of
this appeal is the exclusion of the letter that Lem Lem Burhane wrote. With that
evidence, TheAppellant would have been able to show thejury that the primary
witness and her lawyer were making false and misleading statements about the intent
of both parties... when they entered into a contractual agreement two years earlier.
These are the relevant questions that the court should consider:
1.) How could Judge Phillips legally exclude evidence (Lem Lem's letter) from the
Jury's consideration when that letter was written by a person (Lem Lem Berhane)
authorized by the party (The Ethiopian Evangelical Church) to make a statement
concerning the subject in the dispute?
2.) Lem Lem was tasked by the Church to write the disputed contract—and the
excluded letter. She was "the party's agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the
relationship."
3.) The details of the letter (not allowed into evidence) pertain directly to the case
itself—and were critical to the Appellant... to counter the false version of the
agreement that the opposition was presenting to the jury.
4.) It was a formal letter to the court. She knew that her statements would be
considered by the court.
5.) The letter was already in the court record: but it was submitted in the "Justice
court." The Justice Court Judge allowed that letter to be entered into evidence—
and it is currently contained in the court record. The Justice Court record was
transferred to the Civil Court when the case advanced to the County Court.
These are the legal reasons why it was improper for Retired Judge Phillips to suppress
that evidence. The Jury should have been allowed to consider it.
In The Texas Rules of Civil Procedure—in the Texas Rules of Evidence—(Under section 80 L
Section (e))
"Statements that are not Hearsay. A statement is not hearsay if:
Section (2) Admission by Party-Opponent. The Statement is offered against a party and is:
A.) the party's own statement in either an individual or representative capacity;
B.) a statement of which the party has manifested in adoption or belief in its truth;
C.) a statement by a person authorized by the party to make a statement concerning the
subject;
D.) a statement by the party's agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the relationship.
SUMMARY OF ARGUMENT
The Appeals court may want to know the specific legal reason that Judge Phillips gave for
excluding Lem Lem's Letter. The answer is:
Judge Phillips gave no legal justification for suppressing that evidence.
If the Court will review the submitted excerpt from the Court Reporter's transcript... the court
will see that the above answer is substantiated.
These are the circumstances that led up to the Judge's improper suppression of evidence:
The trail started with the Judge calling the first witness to testify. The witness Lem Lem
Berhane is the representative of the Appellee... who is suing me. She can be described with
complete accuracy as a "Hostile Witness" to me. She is suing me and wants to win this case.
She is being coached by her lawyer to lie in court about the fundamental elements of our
agreement... and she is yielding to his counsel.
When the trial started, Judge Phillips did not allow any opening statements. (This judicial
structure was— in itself, detrimental to my case and I believe it to be improper).
Because I was the Defendant... the Lawyer, Mr. Minerve was instructed by the Judge to call
the first witness. Mr. Minerve call the witness that I had subpoenaed... Lem Lem Berhane. The
Court should understand that Lem Lem Berhane hired Mr. Minerve to carry out this lawsuit
against me. On that day in the County Court... They had a friendly, clear, well-rehearsed
interrogation. When Mr. Minerve concluded... the Judge did not allow me to call my first
witness. As person acting in my own defense... pro se... My preference for a first witness-
would have been myself. I have a right to act as witness and as legal representative. The Judge
had allowed no opening statements. At that time... the Jury did not even know what the case
was about and what the legal arguments were. But the Judge refused to let me testify. He
insisted that Lem Lem Berhane remain on the witness stand. He demanded that I question her—
—or he would dismiss her from testifying altogether. This threat was improper, unfair and
detrimental to my case. The jury (at the beginning of the trial) did not understand the case... and
I had not been allowed to give them my side of the dispute. They would not, and could not
understand the questions I was asking Lem Lem if they did not even know what the dispute was
about. The opposition had done a very good job of feeding them a lot of false information.
I protested repeatedly... but the Judge was adamant. He imposed a structure upon me that I can
only describe as... bizarre. I was instructed to present my side of the legal argument by asking
short questions to a witness, Lem Lem.
The problem with that is ... Lem Lem wants me to lose this legal argument. She is completely
hostile to my case... and is very reluctant to give clear or truthful answers—which might
contradict the testimony she had given 3 minutes earlier).
The exchange between the Judge and myself is reflected in the Court Reporters transcript... (it
begins on page 30) I am requesting that it will be reviewed bv the Appeals Court.
Throughout the period that Lem Lem was on the witness stand, The Judge worked very hard to
maintain the bizarre structure that I have described: (i.e. Insisting the Appellant question Lem
Lem—before the Jury had heard his side of the legal dispute.)
There were four tools that he used to impose the structure.
1.) If I tried to explain something to the jury he repeatedly if I had a question for the
witness.
2.) If I tried to explain something to the jury... he frequently ordered me to "stop
testifying."
3.) If I tried to explain something to the jury... He frequently asked if the witness could
"step down" and/or stated with great urgency and concern... that she needed to get
back to work.
I was very desirous that the jury should understand my side of the legal argument... and the
Judge was very desirous that they should not.
I think it would be helpful for the Court to hear a description of Judge Phillips' "non-sequitur"
reasoning... because it illustrates his improper conduct and judicial error .
(This is recorded in the Court Reporter's transcript... Page 29... Line 7)
I continued to give the Judge reasons why I should be allowed to testify - before I questioned my
subpoenaed witness. And the Judge continued to block that request... then.. .(think he realized
that he did not have a strong enough justification...) because he very suddenly turned his
attention away from me and turned to Lem Lem (on the witness stand).
He asked her the following questions:
Judge Phillips: Are you employed?
Lem Lem: Yes.
Judge Phillips: Do you have a job.
Lem Lem: Yes I do.
Judge Phillips: Where do you work? (Starts on page 29... line 19 and goes through page 30)
From Lem Lem's answers, Judge Phillips made the following NON-SEQUETOR conclusion:
Lem Lem works. Lem Lem has a job. Lem Lem's needs to get back to her job. Nothing in
this courtroom should delay Lem Lem from getting back to her job.
Once he had that conclusion firmly in hand— he quickly turned his attention back to me. In the
next series of statements... He justified his insistence that I question the witness right now...
(because she needed to get back to work) and he strongly implied that he would dismiss Lem
Lem as a witnessall together if I did not beginaskingher questions... right now.
H made that implication —crystal clear.
The above is a description of the Judge's "Improper judicial structure" and the way he imposed
it—and the vailed threat that he used.
The otherimpropriety was the suppression of legitimate evidence. As I stated earlier... he did
not give any legal reason for suppressing Lem Lem's Letter.
This is anaccount of his actions (and the transcript will testify as to the accuracy of my
description: (Page 58... Line 10 through 18.)
Lem Lem was on the witness stand at the time. I hadjust submitted the letter to be admittedas
evidence). Judge Phillips took a quick (5 second) scanof the letter...
He then said, "It's just the same thing she has testified today. It is a waste of time. Let's move
on to new questions."
When I objected ... Judge Phillips said, "She has given her testimony. The jury heard it. What
new questions do you have for her? She needs to go back to work. She says she needs to go
back to work.".
The above statement shows that Judge Phillips' "false urgency" technique... eventually evolved
into a full-blown falsehood. The truth is that Lem Lem never said that she "needed to go back
to work." ! You will not find that anywhere in the transcript. In fact... Lem Lem never
indicated if she even cared about going back to work. It is a safe assumption that most state
workers (Lem Lem works for the State) don't go back to work if the court session lasts into the
mid-afternoon. (Which this one did.) The transcript clearly shows that Judge Phillips invented
and then used this fiction repeatedly.. .to justify his improper structure.
What the above quote illustrates something unusual... The Appellant has described two
illustrations of "improper judicial conduct".
1.) The Judge suppressed legitimate evidence (Lem Lem's letter).
2.) He imposed an improper structure on the court.. .that was used to prevent the Appellant
from presenting his side of the dispute to the jury.
I have included a section of the Court Reporter's transcript with this Appeal (with highlights
and comments) to speed the Court's review process. I did not include the full testimony of
the witness Lem Lem Berhane... because I am aware that the Court of Appeals has a huge
work load.. .and it is the Appellant's responsibility to condense the scope of review to the
parts of the trail that indicate —judicial error or impropriety.
CONCLUSION
Because ofjudicial error and impropriety, I was blocked from providing critical information
that (by every legal standard).. .should have been accepted as legitimate evidence in a trial.
Without that letter... I was unable to demonstrate that there were contradictions between the
witnesses stated testimony—and her written words. Her lawyers' emphatic and false assertions
... also could not be adequately disproven without that evidence.
As a consequence... the outcome of the trial was that Jury ruled for the Plaintiff... and against
me.
RELIEF SOUGHT
The Appellate Court should throw out the verdict that greatly harmed the Appellant in the
County Court. I am entitled to get a fair trial... and that has yet to happen.
AND FINALLY....
Judge Phillips was a great help to me in filing this Appeal. He could have worked against it...
And if he had... it would not have happened. I told the Judge that I enjoyed my experience in
his courtroom (despite the fact that I lost the case) because I got to see a brilliant old-school
legal scholar- obviously, a dedicatedpubic servant- exercise the power of the state. It was
painful for me to lose... but it was fascinating. AndI am confident that the Court of Appeals
will assist me in making things right.
The unfortunate by-product of any effective appeal is a harsh (but accurate) criticism of a
Judge's specific actions ... in a specific trial. Nothing more is asserted by the Appellant.
APPENDIX:
Included with this Appeal are the following:
1. A copy of the relevant provisions of the "Texas Rules of Evidence"
2. A copy of the Court Reporter's record... (the section which is relevant to this Appellants
Brief—and which substantiates judicial impropriety.)
3. Lem Lem's Letter to the Justice Court; The letter that Judge Phillips improperly
excluded from the Juries consideration.
Most respectfully submitted:
CERTIFICATE OF SERVICE
A complete copy of this document was
sent to the Defendant's attorney... by
certified mail.
Seliger Pro se
Texas Rules ofEvidence v^ \• A "*~~~~/ \\s Page 24 of35
(a) Statement. A "statement" is (1) an oral or written verbal expression or (2)
nonverbal conduct of a person, if it is intended by the person as a substitute for verbal
expression.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and
any matter implied by a statement, if the probative value of the statement as offered
flows from declarant's belief as to the matter.
(d) Hearsay. "Hearsay" is a statement, other than one made by the declarant while
testifying at a trial or hearing, offered in evidence to prove the truth of the matter
asserted.
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is:
(A) inconsistent with the declarant's testimony, and was given under oath subject to
the penalty of perjury at a trial, hearing, or other proceeding except a grand jury
proceeding in a criminal case, or in a deposition;
(B) consistent with the declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive;
(C) one of identification of a person made after perceiving the person; or
(D) taken and offered in a criminal case in accordance with Code of Criminal Procedure
article 38.071.
(2) Admission by Party-Opponent. The statement is offered against a party and is:
(A) the party's own statement in either an individual or representative capacity;
1 (B) a statement of which the party has manifested an adoption or belief in its truth;
(C) a statement by a person authorized by the party to make a statement concerning
(D) a statement by the patty's agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of the relationship; or
(E) a statement by a co-conspirator of a party during the course and in furtherance of
the conspiracy.
(3) Depositions. In a civil case, it is a deposition taken in the same proceeding, as
same proceeding is defined in Rule of Civil Procedure 207.* Unavailability of deponent
is not a requirement for admissibility.
*[By Supreme Court Order, dated December 31, 1998, effective January 1, 1999, the
reference to Rule 207 is changed to 203.6.]
[DRAFTERS' COMMENT TO RULE 801
The definitions in Rule 801(a), (b), (c) and (d) combined bring within the hearsay rule
four categories of conduct. These are described and illustrated below.
http://wwvv.michaelariens.com/evidence/freandtrc/trcframe.htm 3/4/2015
*
1 CROSS-EXAMINATION
2 BY MR. SELIGER:
3 Q. Do you want to be called Limlim?
4 A. You can call me Limlim or Lemie.
Q. It doesn't matter?
A. It doesn't matter.
(V»^ 7 MR. SELIGER: Okay. Your Honor, I have a
point of procedure I'd like to ask you. And that is
pchwe€A 9 that can I wait ask and Limlim about all the things I
want to ask her. I actually paid for her to be a
n witness today. I need to explain some things to the
12 jury and actually testify myself.
13 THE COURT: Well, I would prefer that we
14 have a witness on the stand once because it's more
^re.15 economical about the witness' time.
aw^l \16 MR. SELIGER:
on my behalf first and then I will definitely ask her a
Yes. I just need to testify
^
18 lot of questions.
tylM-
THE COURT: Are you employed?
<S*^ 20 .MAUvV\ T-HE WITNESS: Yes.
THE COURT: Do you have a job?
(/\T\ LWKXE& WITNES-S: Ido.
-\Weci do ^^ 23 THE COURT: Where do you work?
IJI\^S^^ 24 tlVKv^M- T-H-E- WITNESS : I work for the State of
Texlas .
dM
^Wv^^ Aexe^"
30
THE COURT: For the State of Texas. The
2 whole state? What department?
3 THE WITNESS: Department of Aging and
4 Disability Services.
5 THE COURT: I'm sorry. I can't hear you.
6 I'm getting old. Aging and Disability Services?
7 THE WITNESS: Yes. Under health and human
8 service.
9 THE COURT: Okay. If you have questions
10 for her, I would prefer that you ask them now so she can
11 get on about her business.
12 MR. SELIGER: Okay. I need to outline
13 some inconsistencies before I start questioning her
14 because it's not going to work otherwise.
15 THE COURT: This witness is on the stand.
16 She's your witness now to interrogate. Now is the time
17 to do it.
18 MR. SELIGER: All right. Can I make a
19 statement first before I interrogate her?
20 THE COURT: No. But you can ask her
21 leading questions. You can bring it out by a leading
22 question. Isn't it true that . . .W^O^^T "Jvd^C^V \
23 MR. SELIGER: Okay. I'll take your lead
24 and I'll do that.
25 Q. (BY MR. SELIGER) Is Pastor Polis (ph) coming
V
31
1 back?
2 A. He is outside.
3 Q. He's outside?
4 A. Yes.
5 Q. Okay. All right. I am going to present a
6 scenario to you of what I remember occurring and then
7 intermittently I'm going to ask you if you agree that
8 what I'm saying is true.
9 A. Okay.
10 Q. So I'm going to go through a history with you
11 and then get your concurrence on this information.
12 Okay .
13 Before I do that, I just want to make one
14 comment that I have to be very careful in not only the
15 interview but I always have to be very careful when I'm
16 addressing the Church Board of Elders. I have to
17 remember they are the Board of Elders. They're
18 respectable, wonderful people, but I'm accusing them of
19 misstating information. So it sounds very confrontive
20 to do that to the Board of Elders and to — also to, you
21 know, imply what it implies that they're not being
22 honest or they're not telling the whole truth.
23 And in this case that's the issue is
24 that --
25 THE COURT: Do you have any questions for
32
1 this witness or can she st ep down?
2 MR. SELIGER: I do .
3 THE COURT: Please ask them.
4 MR. SELIGER: Okay .
5 Q. (BY MR. SELIGER) So do you remember the first
6 time that we met, which was to talk about possibl y my
7 renting the property from the church?
8 A. Yes.
9 Q. Okay. And that there was some agreement there
10 that maybe you would consi der doing that. And so we had
11 a meeting, you and I and F astor Polis, who was th e
12 pastor of the church at ti e time, and we met toge ther at
13 the old church on Capitol Street. And that's how I
14 found you. And do you remember the circumstances of
15 that --
16 MR. MINERVE: Objection, Your Honor
17 Relevance.
18 MR. SELIGER: It's very relevant. /^e're
19 building a contract.
20 THE COURT: I'll overrule for now. We
21 met, the three of us --
22 THE WITNESS: To sign the contract, w e met
23 at the church. So you came and signed the contract.
24 That's what I do remember.
25 Q. (BY MR. SELIGER) We met there and we
33
1 discussed. And the circumstances were that you had this
2 property and you were actively trying to sell it at the
3 time. It was on Craigslist and I approached you because
4 I found it on Craigslist and you were trying to sell it.
5 A. I put it on Craigslist to sell or rent. That
6 was how it was posted actually, rent or sell. So not
7 exactly actively but pass .
8 Q. You were trying to sell it and I approached you
9 and said let me rent it from you instead. And so there
10 was a discussion amongst the church. Did they want to
11 let — they weren't actively trying to rent the
12 property?
13 MR. MINERVE: Your Honor, this is --
14 object to parole evidence.
15 THE COURT: I haven't heard anything yet
16 that has anything to do with parole evidence.
17 MR. SELIGER: I'm just trying to get --
18 THE COURT: You had it posted for rent or
19 for sale. He said he'd rent it. You had a meeting. He
20 signed a contract.
21 THE WITNESS: Correct.
22 Q. (BY MR. SELIGER) We didn't sign a contract
23 immediately because they had a demand. And the demand
24 from me was they said we're actively trying to sell it.
25 We might build on the property because we are outgrowing
34
1 our church and we need to move from our church.
2 THE COURT: Is that true?
3 THE WITNESS: What we discussed orally, I
4 don't exactly remember, but we did -- I did post it for
5 rent or sell. And I mentioned to you when we're ready
6 to build, we might tell you to move out or if we decide
7 to sell it and make more money to build another church,
8 we might -- we have two options, but it's not for me to
9 decide.
10 Q. (BY MR. SELIGER) We discussed both of those
11 and we discussed that there were certain things the city
12 might demand from you if you decided to build on the
13 church -- on the property. The city was going to have
14 to, you know, require all kinds of building codes and
15 various other things. There's all kinds of things that
16 were going to have to happen for that to happen or you
17 might get a buyer.
18 A. Could be.
19 Q. You could get a buyer very quickly. I mean,
20 you don't know because you're advertising it for sale
21 also. So the demand for me from you, if you're going to
22 lease this property, demand from me to the church was I
23 have to agree to move. So I didn't have any guarantee.
24 It would have -- I would have to move. And I had to
25 agree to that. And I said, Wait. This is part of our
35
1 discussion. I said, the p roblem I have with that demand
2 is that I have two thousan d appliances r dishwashers, and
3 r ef r i gerators and that fit s very nicel y on a two-acre
4 property. It's not a big deal if you h ave 200
5 appliances on a t rfo-acre p roperty
6 THE COURT: Do you have any questions for
7 this lady or can she step down ?
8 MR. SELIGER: I do, sir .
9 THE COURT: Please ask .
10 MR. SELIGER: Okay .
11 Q (BY MR. SELIGER) So I said, I need something
12 from the church. I need three months' notification in
13 order to move all that stu ff if I had t o move at any
14 t ime . And you said, Okay. We ' 11 give you the
15 three -month notification.
16 THE COURT: Is that true •p
17 THE WITNESS: We mu st have discussed about
18 that and that's the reasor that I was g iving you a heads
19 up.
20 Q (BY MR. SELIGER) The heads l p is the
21 three -month notif icat ion. So the heads up, as she put
22 the h eads up, isn •t a text
23 THE COURT: This is spea k ing. You're
24 gi vin g speeches to the j ur y. Thi s is the third time
25 I ' ve interrupted - -
36
1 MR. SELIGER : Okay I'm trying. I'm not
2 used to this.
3 THE COURT: -- to tell you that this is
4 the witness we want to hear from
5 MR. SELIGER : Okay
6 THE COURT: If you have questions for her,
1 we'd love to hear her answers.
8 MR. SELIGER : All right, sir. I'm sorry.
9 I'm not real good at this , but I '11 work at it.
10 Q. (BY MR. SELIGER) Okay . So the point of this
11 whole discussion that I 'm trying to get at for the
12 witnes s is th at - - and I believe we've got agreement on
13 this, Lemie, is that this discussion occurred. The
14 church had a demand because they had pressures to move
15 and to find a place to move to. They had not selected a
16 church to move to They night b uild on the property or
17 they might se 11 the property. It was all in a flux at
18 that time. Y ou h ad a demand I needed to move at any
19 time because, you know, anything could happen. And I
20 had a demand that I need a three -month notification to
21 move all my a ppliances. Ihat ' s assentially what it was
22 as far as our neg otiation goes . Isn't that correct?
23 AA. As I men tioned earlier, it's all on the
24 contract. I -- y du know, I wrot a whatever we discussed
25 on the contract. And the contract has proceedings from
37
1 what we sai d because I don't exactly remember the
discus s ion at that time; however, I do remember trying
2
3 to pu t all what you said on the paper.
4 Q. Ok ay. Now , you have testified, just now,
5 es sent ially agreed to what I said, right. But you have
6 testified j ust now that you would put all that on paper
7 and on the cont ract And that was the agreement after
8 we said yes we agree to these terms that you would put
9 thi s in the con tr ac t. Is that your testimony?
10 A. I said on the contract three months before we
11 sell th e proper ty. That's because you wanted
12 three month s .
13 Q. Ok ay . Now , you are testifying that you put our
14 agreement into that -- into the contract?
15 A. Sa y ag ain .
16 Q. It is your testimony today under oath that you
17 went back - - actually, we left and another day we met.
18 This is just -- you recall, we said, Okay. You have
19 this condit ion . I have this condition. We'll put this
20 in the contract You come back another day. I think it
21 was the day aft er . And I'll have a contract drawn up
22 for you and we can sign it. And then we met the next
23 day to sign the con tract. You had to write a contract.
24 A. We were ac tually communicating on the phone
25 especia lly with me . And the very day I saw you is when
38
1 we signed the contract.
2 Q. Oh, okay. Okay. Then I have a miss memory,
3 but we talked about it and then you drew up a
4 contract --
5 A. Yes.
6 Q. -- that stated our two conditions?
7 A. Correct.
8 Q. Okay. All right. So it's your testimony that
9 you put these conditions in the contract?
10 A. The conditions that we discussed are on the
11 contract.
12 Q. Okay. What if I can show you that you didn't
13 do that. What if I --
14 A. You should have told me then.
15 Q.• I have to confront you, but you didn't do what
16 you said you would do.
17 A. You should have told me then before you signed
18 the contract. Before you sign the contract, you could
19 have mentioned that.
20 Q. Okay. But if I didn't understand that -- you
21 didn't at the time, but I can show you that. But
22 anyway, I want to show you some evidence that I hope
23 will prove that you didn't do what you said you would
24 do. Okay. So let me do that real quick.
25 All right. So it's going to be up here on
39
1 this screen here. Now, I'm going to just talk about it.
2 And let me look at that. And I want to try to get your
3 agreement, just as Mr. Minerve tried to get your
4 agreement, that this is this piece and that is that
5 piece.
6 And you all have seen the evidence through
7 Mr. Minerve's stuff. But it's very good to take a
8 harder look at it.
9 THE COURT: What question do you have for
10 this witness without making a speech to the jury between
11 every question?
12 Q. (BY MR. SELIGER) Is this the lease agreement,
13 the top part that says the term as you saw in
14 Mr. Minerve's presentation? That's the top part of
15 lease. Do you see the term? It says this lease will
16 begin on July 1st, 2012, and will terminate on June 30,
17 2013.
18 A. Yes.
19 Q. That's a one-year term, right?
20 A. Yes.
21 Q. That was in the lease?
22 A. Yes.
23 Q. Pretty clear?
24 A. Yes.
25 Q. Okay. This is in the lease. I did this so the
40
1 jury could really focus in on this.
2 Now that says -- I'd read from it.
3 Notwithstanding any provision of this agreement,
4 landlord may terminate this agreement upon — it says
5 zero days, but it's actually three months' written
6 notice to the tenant that the property has been sold.-
7 THE COURT: This is not the copy of the
8 lease?
9 MR. SELIGER: That is the copy.
10 THE COURT: Well, that's not the copy of
11 the lease that's not in evidence.
12 MR. SELIGER: Yes, I didn't show a copy of
13 the copy.
14 THE COURT: What does it say on the lease,
15 on the -- whatever page that is?
16 THE WITNESS: Where did this come from?
17 Q. (BY MR. SELIGER) That came from
18 rocketlawyer.com, which is what you lifted the lease
19 from.
20 THE COURT: Let's deal with the lease that
21 we all signed rather than --
22 THE WITNESS: Yeah.
23 THE COURT: -- an imaginary lease. What
24 does the lease here say? Notwithstanding any other --
25 the caption is under -- it says 19. Termination upon
41
1 sale of the property.
2 MR. SELIGER: Yes.
3 MR. MINERVE: Yes, Your Honor. I object.
4 That's not the lease.
5 THE COURT: Termination upon sale of
6 premises. There it is. Why don't you read that to us?
7 THE WITNESS: Termination upon sale of
8 premises. Notwithstanding any other provision of this
9 lease, landlord may terminate this lease upon
10 three months' written notice to tenant that the premises
11 have been sold.
12 Q. (BY MR. SELIGER) Okay. Do you remember
13 formulating the lease, the source for the lease? If you
14 look on the evidence that was entered by Mr. Minerve, at
15 the very bottom of this lease it says rocketlawyer.com.
16 It's relevant.
17 A. Yes.
18 Q. Do you remember that?
19 A. Yes.
20 Q. That's the home page there?
21 A. It could be.
22 Q. Okay.
23 A. You can have a contract. Different lawyers on
24 web site, you can . . .
25 Q. Okay. That's where that lease came from. It
42
1 says it on the lease here.
2 And let me show the jury this. When you
3 go to rocketlawyer.com --
4 THE COURT: Why don't you just ask this
5 witness a question.
6 Q. (BY MR. SELIGER) When you go to
7 rocketlawyer.com, they don't allow you to write a lease,
8 do they? They just ask you questions. It's just a
9 bunch of questions. As you answer the questions, then
10 the lease is formulated from those questions. Is that
11 what you recall?
12 A. They have different formats for us to prepare
13 agreements for different reasons. There is a form that
14 you just fill out.
15 Q. So you don't really write the lease?
16 A. You can edit it. You can write it up. You can
17 edit everything. You can edit it. You can write it up.
18 Q. Okay.
19 A. And they give you guidance as well. And you
20 can call them and ask as well.
21 Q. Okay. That's a good point.
22 Did you edit the lease at all?
23 A. Obviously, yes.
24 Q. Okay. Did you -- what did you -- what is your
25 testimony that you changed in the lease from
43
1 rocketlawyer.com other than just the very little words?
2 A. RocketLawyer has a template —
3 MR. MINERVE: Objection. That's
4 (indiscernible), Your Honor.
5 THE COURT: I overrule.
6 What did you change was the question.
7 THE WITNESS: I wrote the lease.
8 Q. (BY MR. SELIGER) I know you wrote it.
9 A. It's a template. They don't give you
10 everything. There is a template that you would need to
11 consider. And I considered -- whatever we agreed that
12 day I considered should be in the lease, I put that
13 down .
14 Q. Okay. Now, I want to ask you something very
15 specific. It's very general. Let me ask you something
16 very specific in this question.
17 I've read this lease and I can't find
18 anything that you changed in this lease other than the
19 very basic questions that they asked, which is -- the
20 question they asked is: Who's the tenant? Who's the
21 landlord? What's the address? When you do that, then
22 they make the lease. And I can't find anything in this
23 lease that you've changed other than rocketlawyer.com
24 format. Even the termination of the lease. And we —
25 and you have testified that we both agreed that if they
44
1 sell the prop er ty or if they build on the property, you
2 have testifie d th at none of that is entered into
3 rocketlawyer. com lease. Even that termination clause
4 which I will show you right now — which I 3 ust showed
5 you, it says, How many day's notice must be given to the
6 tenant if the pro perty is sold the lease will be
7 terminated. And then you put that in there. And then
8 it says, will you be allowed to terminate th e lease if
9 the property is sold or conveyed during the lease term.
10 And it says?
11 MS . FLETCHER: Your Honor, we obj ect to
12 the narrative We need a question.
13 THE COURT: Actually, there's no quest ion.
14 Do you want to know any information from
15 this 1ady or can she go back to work?
16 MR. SELIGER: Yes, sir.
17 Q. (BY MR. SELIGER) So that's the
18 rocket lawyer. com. And the question I've got for you, if
19 you look at that, you remember writing it? The only
20 variation on this very complicated agreement that we
21 entered into, the only alteration — if you look behind
22 you, Lemie. The only alteration you made or terminat ion
23 upon civil proper ty is the three month that I asked for.
24 That's the or ly thing you changed on the entire lease.
25 A. I don't say this is the only thing. I have
45
1 edited everything. So it came -- this came up from the
2 template •
3 Q. Can you look at the lease and point to
4 somethin g that you put in here --
5 A. It doesn't matter. This is the lease document
6 and this is what I go by.
7 Q. No, it does matter, Lemie.
8 A. I'm not sure which part I changed, but I have
9 used the templates to write the agreement.
10 Q. I --
11 A. I used the template to write the agreement in
12 here .
13 Q. But you didn't put our agreement in here? Did
14 you put our agreement in here?
15 A. What do you mean?
16 Q. I mean, I thought for — I have been thinking
17 for half a year now that you put our agreement in here
18 but last night I discovered you didn't put our agreement
19 in here.
20 A. Too bad. I think I did. And I think that's --
21 Q. Where did you put it?
22 A. You read it and you signed for it. Whatever we
23 agreed u pon was done at that time. And you had time to
24 see if this needed to be put in, and I could have
25 correcte d it if that's what we agreed upon.
;
1 Q. Is your testimony that you did not put -- that
2 you -- I think -- are you testifying that you didn't put
3 our agreement in the lease and you're saying too bad?
4 You read it and too bad?
5 A. I did not understand your question. Can you
5 repeat the question?
7 THE COURT: Yeah. That's too many double
8 negatives in it. The best you could, did you put the
9 agreement into the lease?
10 THE WITNESS: I did put, to the best of my
11 knowledge, what we agreed upon. To the best of my
12 knowledge, yes .
13 Q. (BY MR. SELIGER) Can you point out to our
14 agreement in this lease for the jury to hear?
15 THE COURT: The whole lease is your
16 agreement. What part of it do you want her to explain?
17 Q. (BY MR. SELIGER) The agreement that I
18 described is that you had a condition for leasing the
19 property to me that you've testified, that if you sold
20 the property or if you needed to build the property, you
21 would need me to leave immediately.
22 A. Yes.
23 Q. And I said, I need you to agree to a
24 three-month notification. Can you show me in the lease
25 where that is?
47
1 A. You mean other than where it says termination
2 of the 1 ease .
3 Q. Yes, other than that.
4 A. That's the only piece.
5 Q. Is that it?
6 A. That's the only place.
7 Q. That's it?
8 A. Yes .
9 Q. Okay. Let me ask you a question.
10 MR. SELIGER: I need to enter some
11 evi dence I don't need to enter stuff that's already
12 been en t ered so let me get this correct here.
13 Do I need to hand this to the jury also?
*
14 THE COURT: What is it?
15 MR. SELIGER: Exhibit.
16 THE COURT: Not yet it's not.
17 MR. SELIGER: Okay.
18 THE COURT: Mark it. Have some witness
19 identif y it. Then offer it into evidence.
20 MR. SELIGER: Okay.
21 MR. MINERVE: Can I see a copy?
22 MR. SELIGER: Yes, sir. Give you this
23 one
24 Judge, do I hand you a copy?
25 THE COURT: No, I don't need it.
48
1 MR. SELIGER: Okay.
2 THE COURT: M-I-O. Mark, identification,
3 and offer.
4 MR. SELIGER: Okay.
5 Q. (BY MR. SELIGER) Lemie, in the contract, let's
6 go to page --
7 MR. MINERVE: Okay. Your Honor, I object.
8 This --
9 THE COURT: He hasn't offered — you don't
10 get to object until he offers.
11 THE COURT: What's your question for this
12 witness?
13 MR. SELIGER: Okay.
14 Q. (BY MR. SELIGER) My question -- Lemie, if you
15 will look at the contract. Look at the second to the
16 last page. It says "notice" on the second to the last
17 page. And all this is is a photocopy of that lease
18 agreement.
19 THE COURT: Where does it say "notice" on
20 the next to the last page?
21 Q. (BY MR. SELIGER) It says "notice".
22 A. I don't see that.
23 THE COURT: We heard that, but we don't
24 see it .
25 Q. (BY MR. SELIGER.) Okay. It says -- you see
49
1 landlord or tenant? You see any addresses there?
2 A. Landlord.
3 Q. Okay. It's the wrong contract there.
4 MR. MINERVE: What page are we on?
5 THE WITNESS: The last page, actually.
6 THE COURT: We are on the signature page,
7 she and I are, because that's what we are looking at.
8 Q. (BY MR. SELIGER) Okay. You're looking at it.
9 Let me get this up for the jury here. I don't have
10 it --
11 MR. MINERVE: Your Honor, we're referring
12 to the lease. But this piece of paper here, I'd like to
13 know what this is.
14 MR. SELIGER: It's a copy of -- directly
15 taken from the lease, a photocopy taken directly from
16 the lease.
17 MR. MINERVE: That is not true, Your
18 Honor.
19 MR. SELIGER: Yes, sir, it is.
20 MR. MINERVE: He's offering -- I object.
21 It's not. You have the lease in front of you. This is
22 not in the lease. This is not part of the lease.
23 THE COURT: What page is it on?
24 MR. SELIGER: Let me see his lease. I
25 could tell you.
50
1 THE COURT: May I see that lease?
2 MR. SELIGER: It's in my lease. He didn't
3 photocopy it. It's in my lease that I signed. It's not
4 in his. Mr. Minerve left it out.
5 THE COURT: It's not in this exhibit so'we
6 don't have it before us.
7 MR. SELIGER: Okay. I will have -- he's
8 deliberately left out a page of this lease. It's not
9 there. I'll have to dig up my original lease.
10 Can I have a minute to dig up my original
11 lease? It's in there.
12 THE COURT: And your original lease is
13 crossways like this one. It's landscape, not portrait.
14 THE COURT: Okay. Let's let -- give you
15 time to put that thought together.
16 Nellie, I need you to come in and give
17 these jurors a little orientation.
18 You may step down, ma'am. We'll need you
19 back here at 1:15 so we can continue asking you
20 questions.
21 THE WITNESS: Okay.
22 THE COURT: 1:15.
23 THE WITNESS: Okay. Thank you.
24 THE COURT: Sir?
25 MR. SELIGER: That's the original lease.
51
1 And it's in there.
2 MR. MINERVE: I need a copy of that.
3 THE COURT: Yeah there's a page.
4 Jurors, if you please go with Ms. Ojeda.
5 She will give you a little information. And then you're
6 on for lunch and then we'll see you back at 1:15 ready
7 to continue.
8 (Jury excused for lunch.)
9 THE COURT: At the bottom of page 3, there
10 is a sentence that doesn't have an ending. It is
11 continued on the top of page 4, the information that
12 Mr. Seliger gave me. So there we are.
13 MR. SELIGER: I think Mr. Bierwirth left
14 that information out.
15 THE COURT: Probably so. Okay. Here is
16 your stuff, Mr. Seliger. We'll see you at 1:15.
17 (Court in lunch recess.)
18 THE COURT: Good afternoon.
19 All right. We are back with the witness.
20 Yes, sir, pick up with you were.
21 MR. SELIGER: Thank you.
22 CROSS-EXAMINATION (CONT.)
23 Q. (BY MR. SELIGER) Lemie, I'd like to continue
24 with this discussion that we were having about our
25 contractual agreement which was we agreed, both parties,
52
1 that if you build on the property or if you end up
2 selling the property that you would give me three-month
3 notification and I would have to move and that could be
4 at any time. It could be -- do you remember? It could
5 be a month after I moved in.
6 MR. MINERVE: I object, Your Honor.
7 That's.not what she had agreed to and she did not say if
8 the property was built on.
9 THE COURT: If she sold — if you all
10 agreed that you would give him three months' notice if
11 you sold the property so he had three months to move and
12 that could have happened in the first month of the
13 tenancy.
14 THE WITNESS: Correct.
15 MR. SELIGER: Both. Selling or if they
16 decide to build on the property. She has already
17 testified to that.
18 A.. Building the property.
19 Q. (BY MR. SELIGER) I'm sorry?
20 A. No. It's according to the paper, to the
21 contract.
22 Q. Okay. But do you recall, after we agreed to
23 that, that you said that you would put that in the
24 contract?
25 A. No.
53
1 Q. But you said that you would put our agreement
2 in the contract?
3 A. Yes. I told you that I will put it in the
4 contract, what we said.
5 Q. And then I'm trying to make the point where is
6 it in the contract. If you put it in the contract,
7 where is it?
8 A. We didn't say word by word, you know, but we
9 agreed to put -- we agreed to have a contract and that's
10 what I put.
11 Q. Where is this agreement in the contract, Lemie?
12 That's what I'm asking.
13 A. I don't remember what we orally discussed --
14 the details of what we discussed oral.
15 Q. Of course. But where is it in the contract,
16 our agreement? Can you find it in the contract?
17 THE COURT: About three months' notice?
18 THE WITNESS: The three months' notice.
19 THE COURT: Is that the agreement you're
20 asking about?
21 MR. SELIGER: What we agreed -- both
22 agreed to, that she just testified to, that we had this
23 agreement. Where is it in the contract?
24 THE COURT: The agreement about the three
25 months' notice is what you're asking about?
54
1 MR. SELIGER: No.
2 THE COURT: The entire contract is your
3 agreement. What part of it are you asking her about?
4 MR. SELIGER: I'm asking her about the
5 agreement that I would have to move at any time if they
6 found a buyer for the contract or if they decide to
7 build a church on the property.
8 THE COURT: We know that endlessly to
9 build a church.
10 THE WITNESS: Under termination upon sale
11 of premises.
12 MR. SELIGER: It's not in there. I agree
13 it's not in there.
14 THE COURT: To build a church is not in
15 there. Buyer is in there.
16 Q. (BY MR. SELIGER) Okay. Where is it?
17 A. Under termination upon sale of premises.
18 Q. Okay. So turn on the screen here. And, Lemie,
19 you'll see that it has the question from
20 rocketlawyer.com. And then -- that's what it looks like
21 when they ask.you that. And then this is what it looks
22 like in the -- before you fill in the blank. Is that
23 what you're saying represented our agreement?
24 A. What I'm saying is what is represented here is
25 what I edited and presented to you.
55
1 MR. SELIGER: So I would like to enter
2 Exhibit 1.
3 And I don't hand you a copy yet?
4 THE COURT: What is it? Have her identify
5 it .
6 MR. SELIGER: It is a -- it's just a
7 lifting of the contract .-- a highlight of the
8 termination agreement.
9 MR. MINERVE: Your Honor --
10 THE COURT: As it is?
11 MR. SELIGER: Exactly. It's just lifted
12 from the photocopy.
13 MR. MINERVE: It's a provision that
14 appears to mirror a provision in the contract.
15 MR. SELIGER: No.
16 MR. MINERVE: That was signed and agreed
17 to. But it's collateral. It's something else. Why is
18 this relevant?
19 THE COURT: What does it look like?
20 MR. SELIGER: It's straight from the
21 contract. It's a photocopy from the contract.
22 THE COURT: Termination upon sale of
23 premises. Notwithstanding any other provision of this,
24 landlord may terminate this lease upon three months'
25 written notice that premises has been sold.
57
1 agreed to so you're going to have to find that
2 information someplace else.
Do you have any new questions for her?
4 We've chased this around the block enough.
MR. SELIGER: Okay. Thank you.
All right. I want to enter this into
7 evidence.
THE COURT: Why don't you not show it to
the jury until it comes into evidence, please. Why
10 don't you take it down off the screen until we decide if
11 it's admissible evidence.
MR. SELIGER: Okay.
THE COURT: Thank you. Now, what question
14 do you have for the witness?
to*.
Q. (BY MR. SELIGER) The question for the witness:
16 Did you write a letter to the court explaining this case
17 to the court when you declined to observe -- you were
subpoenaed to come to court and you couldn't come to
court or you declined to come to court and you wrote a
letter of explanation of why you did not want to come to
court and you explained in that letter what our
agreement was in that letter?
MR. MINERVE: I'm going to object.
Q. (BY MR. SELIGER) Did you write that?
MR. MINERVE: I'm going to object, Your
1 Honor, because what he is asking is questioning the
2 witness about a writing, which is collateral to the
3 contract, that he wishes to use to interpret the
4 contract when the contract is clear.
5 THE COURT: May I see it?
6 MR. MINERVE: Yes.
7 MR. SELIGER: It has direct relation to
this case. Total relation to this case. She explains
9 -- look at that star there, Judge.
THE COURT: It's just the same thing she's
11 testified today. It's a waste of time. Let's move on
12 to new questions.
13 MR. SELIGER: But you agree she testified
14 to that?
15 THE COURT: She has given her testimony.
16 The jury has heard it. What new questions do you have
17 for her? So she can go back to work. She says she
18 needs to go back to work.
19 MR. SELIGER: Okay. Exhibit 7. That's
20 actually the text of -- photograph of text that she
21 sent .
THE COURT: What's the question for her?
Q. (BY MR. SELIGER) Question is, Lemie --
THE COURT: And is this already in
evidence ?
Apr.12,2014 IV^^AS ^ ,. /O^KaVV O
To whom it may concern ^ Q^0 ^p^. ^
My name is Lemlem Berhane. Iwork for the state of Texas under Health and Human Service Department. Iam also a
member and one of the board of elders in the Ethiopian Evangelical Christian Church. I just received a phone call from
mychurch that there is a notice for me and my Pastor to appear to acourt at 1:00PM tomorrow to witnessa casefor
Frank (a tenant that rented the church property.)
Iapologize sincerely however dueto my work situation for the State; Iam notable to get permission instantly. We are In
atightschedule to meet adeadline at my workto deliver a project. Also ourPastor, Pastor Melaku joined our church
recently. He spoke with me over the phone in regards to the notice. He was not here with the church when property
rented. He doesn't know the tenant. He moved to Austin to serve our church after the previous pastor retired recently.
Also he doesn't speakEnglish andthe courtwould need to arrange an Interpreter if he hasto come. However as a very
short noticeto arrange his schedule He also wanted me to send you an apology note that he won't be able to come for
tomorrow.
Isigned up on the lease agreement forthe church when the property located at 2108 E. Yager Ln, Austin, TX78754 that
belongs to the Ethiopian Evangelical Christian Church rented In Jury of 2012. The contract hasnot been renewed at this
time. At the time we agreedthat this will probably be a short time lease and we will tell himto move if we decide to
build a structure or sell the property. When the one year lease was over the church needed to use the space for the
community development center and I was told to contact the tenant.
Itexted the tenant back InSeptember 24,2013 telling him that the board of elders have decided to use the property for
our community development starting January 2014 therefore he needs to move by December 31,2Q13. The tenant
gave me reason of personal family problemsand requested to extend for him until end of January. I presented to the
board and the board moved the date to end of January. Extending one month has been another cost for the church as
we had to change so many plans and project schedules.
Prior to havinga property manager to help us vacate the tenant from our property we tried everything possible
numerous occasionscalling him textlng him Including writing a letter to him to co-operate with us to move out from the
property. The tenant was notified In advance with formal letters, phone callsand text messages since September 24,
2013. He failed to move out within the given three month period and he Isnow exhausting our time, patience, and
resource by not abiding to the contract. We need the space to deliver our callto our community.
Thank you; r.
j\^^M^^^v^^5^ C-^Ars^yv_
Sincerely,
CTt^, ,-,— . .,.-—!^.'.'.",„.'.. •:...i.. •..--•—• • • • , •••••TT r--. —--^-r-r- ,.--...—_