lying in affidavit claiming to have personal knowledge, when there is none, is sanctionable under TCRP 13 exists, but million dollar sanction for one affidavit is too much
How later courts described this case
- lying in affidavit claiming to have personal knowledge, when there is none, is sanctionable under TCRP 13 exists, but million dollar sanction for one affidavit is too much
- sanctions so severe as to inhibit the presentation of the merits must be reserved for “flagrant bad faith” or “counsel’s callous disregard…”
- when...evidence does not appear in record, it is impossible to determine harm and party is prevented from properly presenting case on appeal
- reversing Court of Appeals because TCPA is not limited in scope to only communications in “public form”
Written by the judges who cited it.
The opinion
ACCEPTED
03-16-00131-CV
12911642
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/26/2016 7:31:34 PM
JEFFREY D. KYLE
CLERK
No. 03-16-00131
__________________________________________________________________
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS FOR THE 9/26/2016 7:31:34 PM
JEFFREY D. KYLE
THIRD DISTRICT OF TEXAS AT AUSTIN Clerk
__________________________________________________________________
Mary Louise Serafine,
Appellant
v.
Alexander Blunt; Ashley Blunt; Scott Lockhart; Austin Drainage and Foundation,
LLC d/b/a Austin Drainage and Landscape Development; Viking Fence Company,
Ltd.; and Viking GP, LLC,
Appellees
__________________________________________________________________
From the 250th Judicial District Court of Travis County, Texas,
Hon. Karin Crump, presiding,
Cause No. D-1-GN-12-001270
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
Mary Louise Serafine
State Bar No. 24048301
P.O. Box 4342, Austin, Texas 78765
Tel:(512) 220-5452
Email: mlserafine@gmail.com
Attorney for Appellant
ORAL ARGUMENT REQUESTED
No. 03-16-00131
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS AT AUSTIN
________________________________________________________________
Mary Louise Serafine, Appellant
v.
Alexander Blunt; Ashley Blunt; Scott Lockhart; Austin Drainage and Foundation,
LLC d/b/a Austin Drainage and Landscape Development; Viking Fence Company,
Ltd.; and Viking GP, LLC, Appellees
IDENTITY OF PARTIES AND COUNSEL
Plaintiff/Appellant:
Mary Louise Serafine
Trial and appellate counsel:
Ray Bass (through Feb. 29, 2016)(deceased)
State Bar No. 01884000
120 West 8th Street, Georgetown, TX 78626
Tel: 512-863-8788
ray@raybass.com
Mary Louise Serafine (current)
State Bar No. 24048301
Attorney & Counselor at Law
PO Box 4342, Austin, TX 78765
Tel: 512-220-5452
mlserafine@gmail.com
Trial counsel:
Robert G. Hargrove (through Sept., 2012)
State Bar No. 24032391
Hays & Owens, LLP
ii
807 Brazos, Ste. 500, Austin, TX 78701
Tel: 512-472-3993
(now at Osborn, Griffith & Hargrove)
515 Congress Avenue, Suite 2450, Austin, TX 78701
Tel: 512-476-3529
rob@texasenergylaw.com
Defendants/Appellees:
Viking Fence Company, Ltd. and Viking GP, LLC
Trial and appellate counsel:
Thompson, Coe, Cousins & Irons, L.L.P.
701 Brazos, Suite 1500, Austin, TX 78701
Tel: 512-708-8200
Jeff D. Otto (trial and appellate counsel)
State Bar No. 15345500
jotto@thompsoncoe.com
Melissa Ackie (trial and appellate counsel)
State Bar No. 24088686
mackie@thompsoncoe.com
Wade C. Crosnoe (appellate counsel)
State Bar No. 00783903
wcrosnoe@thompsoncoe.com
Sara B. Churchin (appellate counsel)
State Bar No. 24073913
schurchin@thompsoncoe.com
Defendants/Appellees:
Scott Lockhart and Austin Drainage and Foundation LLC d/b/a Austin
Drainage and Landscape Development
Trial and appellate counsel:
The Raydon Firm LLC
iii
Ronald M. Raydon
State Bar No. 00798456
Two Riverway, Suite 845, Houston, TX 77056
Tel: 281-222-7293
ron@raydonlaw.com
Defendants/Appellees:
Alexander Blunt and Ashley Blunt
Trial and appellate counsel:
Hajjar Peters LLP
Doran D. Peters
State Bar No. 24027615
3144 Bee Caves Road, Austin, Texas 78746
Tel: 512-637-4956
service @legalstrategy.com
Appellate counsel:
Martens, Todd, Leonard, Taylor & Ahlrich (current)
Amanda Taylor
State Bar No. 24045921
301 Congress Ave., Suite 1950, Austin, Texas 78701
Tel: 512-542-9898
ataylor@textaxlaw.com
iv
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Abbreviations and Record References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
Statement on Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvi
Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I. The great weight and preponderance of evidence
—or conclusive evidence—established Serafine’s
title by limitations no later than November 23, 1988 . . . . . . . . . . . . . . 8
A. The elements of adverse possession were met . . . . . . . . . . . . . . . 8
B. No relevant evidence contradicted these facts . . . . . . . . . . . . . . 24
C. Grant’s Occupied Line Survey is accurate . . . . . . . . . . . . . . . . . 25
D. Serafine met the 5, 10, and 25-year statutes for
limitations title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
II. The court erred in expunging the notice of lis pendens
---misconstruing Prop. Code §12.0071, defeating appellate jurisdiction
over the res, and ignoring statutory procedural requirements . . . . . . 29
A. “Probable validity” means “legally cognizable” . . . . . . . . . . . . 29
v
B. The expungement of a valid but rejected claim defeats
appellate jurisdiction over the res . . . . . . . . . . . . . . . . . . . . . . . . 31
C. The trial court ignored statutory procedure . . . . . . . . . . . . . . . . 32
III. Declaring the Carson survey as the boundary was error . . . . . . . . . . . 33
A. The Carson survey is untenable under any theory . . . . . . . . . . . 34
B. The trial court erred in finding Serafine’s
surveyor Grant’s methods “unreliable” . . . . . . . . . . . . . . . . . . . . . . . . . 39
C. The court erred by not holding a hearing on the boundary . . . . 39
IV. The court erred in granting the MSJs of Viking Ltd.
and Viking GP on (a) negligent training and supervision
and (b) nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
A. The court erred in granting summary judgment
favorable to Viking on negligent hiring,
training, and supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
B. The court erred in granting summary judgment
favorable to Viking on Serafine’s nuisance claims . . . . . . . . . . 50
V. The trial court engaged in prevailing-party
fee-shifting unauthorized by any statute, by fashioning
an unwarranted $10,000 sanction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
A. The conduct in question was unsanctionable . . . . . . . . . . . . . . . 55
B. The purpose of the sanction was improper—
to replace Viking's failed fee-shifting under
the offer-of-settlement rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
C. Viking's sanctions motion was based on a
vi
substantive error of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
D. The court acted arbitrarily by surmising
sanctionable conduct, without finding it . . . . . . . . . . . . . . . . . . . 60
VI. The trial court erred in awarding Serafine $0
in fees and sanctions under the Citizen’s Participation Act,
or alternative law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
A. The court was required to award Serafine’s fees
under Sullivan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
B. The trial court was required to award sanctions . . . . . . . . . . . . . 63
C. In addition, the Court should render judgment in the
amount of $53,525 in attorney’s fees to Serafine . . . . . . . . . . . . 67
VIIa. Errors in the trial court require a new trial . . . . . . . . . . . . . . . . . . . . . . 68
A. Plaintiff was denied rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
B. In a “death penalty” sanction the trial court excluded
plaintiff’s trial exhibits on controlling issues . . . . . . . . . . . . . . . 75
C. Admitting a purported mediation and settlement
offer was harmful error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
D. The court erred in refusing a lateral support instruction . . . . . 85
VIIb. The trial court prevented appeal within
the meaning of TRAP 44.1(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Appellant’s Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
vii
Trial Court Orders
Final Judgment, including charge, verdict,
order on boundary, monetary sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 1
Order setting boundary, expungement . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 2
Findings of fact & conclusions of law . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 3
Order granting Viking MSJs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 4
Order consolidating cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 5
Directed verdict on Lockhart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 6
Order excluding plaintiff’s expert Hilts . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 7
Evidentiary sanction excluding plaintiff’s exhibits . . . . . . . . . . . . . . . . Tab 8
Judge’s bill of Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 9
Pleadings
Petition in 12-1270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 10
Petition in 13-4023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 11
First supplement to petitions, both cases . . . . . . . . . . . . . . . . . . . . . . . . . Tab 12
Second supplement to petitions, both cases . . . . . . . . . . . . . . . . . . . . . . . Tab 13
Blunts’ counterclaims for interference and fraudulent lien . . . . . . . . . . Tab 14
Blunts’ counterclaim for trespass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 15
Motion
Plaintiff’s supplement to motion for Chapter 27 relief . . . . . . . . . . . . . . Tab 16
Statutes and Rules
Civ. Prac. & Rem. Code sec. 27.009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 17
Civ. Prac. & Rem. Code sec. 16.034 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 18
Prop Code sec. 12.0071 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 19
Tex. R. Civ. P. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 20
Civ. Prac. & Rem. Code Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 21
Tex. R. Civ. P. 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 22
Tex. R. civ. P. 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 23
Civ. Prac. & Rem. Code secs. 16.021 to 16.030 . . . . . . . . . . . . . . . . . . . Tab 24
viii
ABBREVIATIONS AND RECORD REFERENCES
Parties
“Serafine” means plaintiff/appellant Mary Lou Serafine.
“Viking Ltd.” means defendant/appellee Viking Fence Company, Ltd. d/b/a
Viking Fence Co.
“Viking GP” means defendant/appellee Viking GP, LLC, the general partner
of Viking Ltd.
“Viking” means Viking Ltd. and Viking GP collectively.
“Lockhart” refers to defendants/appellees Scott Lockhart and Austin Drainage
and Foundation, LLC d/b/a Austin Drainage and Landscape Development.
“Mr. and Mrs. Blunt” or “Blunts” refers to defendants/appellees Alexander
Blunt and Ashley Blunt.
Rules & Statutes
“Rule” or “TRAP” means Texas Rule(s) of Appellate Procedure.
“TRCP” means Texas Rule(s) of Civil Procedure.
“CPRC” means Civil Practice & Remedies Code.
“TCPA” or “Chapter 27" refers to the Texas Citizen’s Participation Act at
Chapter 27 of the Civ. Prac. & Rem. Code.
Form of Record Citations
REPORTER’S RECORDS
[vol. or supp. no.].RR:[pg. no.]
The trial court ordered revision of Volumes 1, 7, and 16.
Only if citation is necessary to Revised Reporter’s Records, then:
ix
[vol. or supp. no.].RevisedRR:[pg. no.]
CLERK’S RECORDS
CR:[pg. no.] refers to record filed 5-9-16 (1096 pp.)
CRSuppI:[pg. no.] refers to that filed 5-27-16 (250 pp.)
CRSuppII:[pg. no.] refers to that filed 6-21-16 (41 pp.)
CRSuppIII:[pg. no.]* refers to that filed 7-8-16 (166 pp.)
CRSuppIV:[pg. no.] * refers to that filed 7-8-16 (31 pp.)
CRSuppEx:[pg. no.]** refers to that filed 7-21-16 (one exhibit)
CRSuppV:[pg. no.] * refers to that filed 9-1-16 (780 pp.)
CRSuppVI:[pg. no.] ** refers to that filed 9-14-16 (77 pp.)
CRSuppVII:[pg. no.]** refers to that filed 9-14-16 (104 pp.)
* No supplement number shown on title page.
** No title page is shown on this exhibit supplement.
x
INDEX OF AUTHORITIES
Cases
Beard Family Partnership v. Commercial Indem. Ins. Co.,
116 S.W.3d 839 (Tex. App.—Austin 2003) . . . . . . . . . . . . . . . . . . . . . . 68
Brohlin v. McMinn, 341 S.W.2d 420 (Tex. 1960) . . . . . . . . . . . . . . . . . . . . . . 26
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) . . . . . . . . . . 81
City of Houston v. Bates, 406 S.W.3d 539 (2013) . . . . . . . . . . . . . . . . . . . . . . 29
Crosstex North Texas Pipeline, L.P. v. Gardiner, No. 15-0049
(Tex. June 24, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52
Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) . . . . . . . . . . . . . . . . . 28
Ford Motor Company v. Castillo, 279 S.W.3d 656 (Tex. 2009) . . . . . . . . . . 87
In re Estate of Francisco Julio Lerma Sanchez, No. 04-11-00332-CV
(Tex. App.—San Antonio April 18, 2012) . . . . . . . . . . . . . . . . . . . . . . . 32
In re Patton, 47 S.W.3d 825, 828 (Tex. App.—Fort Worth 2001) . . . . . 81
Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997) . . . . . . . . . 51
King v. Associates Commercial Corp., 744 S.W.2d 209
(Tex.App.—Texarkana 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127
(Tex. App.—Amarillo 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Latimer v. Memorial Hermann Hospital Sys., No. 14-09-00925-CV
(Tex.App.—Houston [14th Dist.] Jan. 20, 2011) . . . . . . . . . . . . . . . . . 42
Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) . . . . . . . . . . . . . . . . 66
xi
Mentis v. Barnard, 870 S.W.2d 14 (Tex.1994) . . . . . . . . . . . . . . . . . . . . . . . . 83
Metzger v. Sebek, 892 S.W.2d 20 (Tex. App.—Houston 1994) . . . . . . . . . . . 65
Nath v. Tex. Children's Hosp., 446 S.W.3d 355 (Tex. 2014) . . . . . . . . . . . . . 59
Nabours v. Whiteley, 466 S.W.2d 62 (Tex.Civ.App. —Austin 1971) . . . . . 26
Neyland v. Thompson, No. 03-13-00643-CV
(Tex. App.—Austin Apr. 7, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643
(Tex.App.—Dallas 2002, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Salma v. Capon, 161 Cal.App.4th 1275 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 64
Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015, no pet.) . . . . 61
Simon v. Nance, 100 S.W. 1038
(Tex. Civ. App.—Austin 1907, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . 86
Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) . . . . . . . . . . . . . . . . . . . . . 63
Tarrant Cnty. v. Chancey, 942 S.W.2d 151
(Tex.App.—Fort Worth 1997, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . 61
Texas Water Rights Commission v. Crow Iron Works,
582 S.W.2d 768 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TransAmerican Nat’l Gas Corp. v. Powell, 811 S.W.2d 913
(Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Wein v. Sherman, No. 03-10-00499-CV
(Tex.App.—Austin Aug. 23, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . 42
xii
Rules and Statutes
Civ. Prac. & Rem. Code Chapter 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Civ. Prac. & Rem. Code Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Prop. Code §12.0071 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 32
Tex. R. App. P. 44.1(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Tex. R. Civ. P. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Other Authority
Black’s Law Dictionary, Garner, B., ed., 10th Edition, 2014 . . . . . . . . . . . . 30
xiii
STATEMENT OF THE CASE
Nature of the case: Serafine’s claims were for trespass-to-try
title, interference with property rights, and
damage to property. (CR:15-29, 32-50). The
Blunts counterclaimed for trespass, tortious
interference with contract, and fraudulent
lien. (CR:419-21, 6-8).
Trial court In Cause No. D-1-GN-12-001270:
proceedings: Serafine filed suit against the Blunts and
Lockhart; the Blunts counterclaimed against
Serafine.
Court of Appeals interlocutory disposition
of Blunts’ counterclaims in part:
After a stay entered in Dec., 2012 (CR:30-
31) the Court issued its mandate on Sept.
10, 2015. (CR:415-418). The Court’s
opinion is at Serafine v. Blunt, 466 S.W.3d
352 (Tex. App.—Austin 2015, no pet.),
In Cause No. D-1-GN-13-004023:
Serafine filed suit against Viking Fence.
Trial court assigned for all purposes: The
Trial Honorable Karin Crump, 250th Judicial
court disposition: District Court, Travis County. CR:55.
The 250th Judicial District Court retained
and consolidated all matters above. (CR:371-
376). Trial was held Oct. 13-16, 2015. RR,
Vol.9-12. Two final orders were signed on
Nov. 13, 2015. CR:740-43. Final judgment
was signed Dec. 3, 2015. (CR SuppIII:94-
129).
xiv
On June 13, 2016 matters concerning the
record were abated to the trial court. On
Court of Appeals July 26, 2016 the Court reinstated the
proceedings: appeal. On July 28, 2015 the trial court
signed orders in the matters abated. The
clerk’s record of matters abated was filed on
Aug. 31, 2016. CRSuppV:448-50.
xv
STATEMENT ON ORAL ARGUMENT
Should the Court wish oral argument concerning issues not
authoritatively interpreted, appellant respectfully suggests these include:
• how the sanctions provision in the Citizen’s Participation Act should be
interpreted, including when false testimony undergirds a mixed-claim
Chapter 27 violation;
• how to apply the principle of interference with property rights under the
Supreme Court’s nuisance jurisprudence in Crosstex North Texas
Pipeline, L.P. v. Gardiner, No. 15-0049 (Tex. June 24, 2016);
• when a case is headed for appeal, how the “probable validity” phrase in
Prop. Code § 12.0071 should be interpreted on a motion to expunge a lis
pendens notice.
Tex. R. App. P. 39.1(b).
xvi
ISSUES PRESENTED FOR REVIEW
Two cases with related but different facts, different defendants and
causes of action, and different experts were consolidated just before trial. The
issues are argued in the order in which the preceding ones provide context for
later ones—not, as often is the case, in order of diminishing importance.
1a. Whether the jury's rejection of appellant's title by limitations was against
the great weight and preponderance of the evidence, or alternatively,
1b. Whether appellant's title by limitations was conclusively established, and
no evidence supported a contrary result.
2. Whether the court below erred in expunging the notice of lis pendens as
a matter of law under Prop. Code § 12.0071.
3. Whether the court's fixing of the boundary at the “Carson line” was
against the great weight and preponderance of the evidence or,
alternatively, the evidence conclusively established that the “Carson
line” was error.
4. Whether the court erred as a matter of law in granting Viking’s motions
for summary judgment on (a) negligent training and supervision and (b)
nuisance.
5. Whether the trial court abused discretion by replacing Viking’s failed
fee-shifting plea with a $10,000 sanction against Serafine in Viking’s
favor.
6. Whether the court erred in awarding Serafine $0 in relief on the Blunts’
dismissed counterclaims under the Citizen’s Participation Act.
7a. Whether the trial court’s erroneous rulings require a new trial.
xvii
7b. Whether the trial court prevented appeal within the meaning of TRAP
44.1(a)(2).
xviii
STATEMENT OF FACTS
Serafine bought Lots 5 and 6 in Hyde Park, Austin in 1977.
9.RR:112,113, 116. Serafine brought two law suits arising out of separate
construction projects contracted by her then-neighbors, the Blunts, in late 2011
and early 2012, on and abutting what Serafine claimed was her land.
1. Claims against Viking (Cause No. D-1-GN-13-004023). Serafine
claimed that Viking Fence knew or had to know the Blunts had hired Viking
to tear out Serafine’s fences and gate post without her consent, disrupting her
boundary by installing a fence on her property. CR:32-50. After
depositions, Serafine claimed Viking had a "business policy to treat the
property rights of adjoining landowners...with...contemptuous disregard,"
Id.,¶112, and a "routine practice, of sending out unsupervised...persons” doing
“quick work...." Id.,¶31. Viking did not know who all of its crew were.
11.RR.16-17.
Serafine’s surveyor reconstructed the original boundary created by the
fence. CR:50. It showed Serafine had lost 120 square feet on a small lot. Ibid.
At trial Serafine testified without dispute to photographs of a Pecan tree
showing that before Viking's work, "that's my chain link fence and that's the
tree on my property." 9.RR:159. After Viking's work, "the tree is now on the
1
Blunts' property." 9.RR:156.
Viking’s Jimmy Clanin was asked, "before you start putting in a fence
that is between two properties, do you have any contact with the adjoining
property owner?" he answered, "No, sir, not generally." 11.RR:20. He
testified, "I can't specifically remember looking at the survey before I started
the job." 11.RR:19.
Serafine claimed Viking was liable because Viking should know "that
demolition, removal, and/or replacement of an existing fence that separates two
properties would cause litigation to ensue" including the trespass-to-try-title
action she was forced to bring against the Blunts to restore the 34-year-old
boundary. CRSuppVI:3-10. She testified she "didn't want my chain link fence
that matched the gate to be torn out." 9.RR.142-43. The jury saw a photo of
the historic "Snelling House" plaque on Serafine's house. 9.RR.129-130;
17.RR.5. Earlier she had been engaged in a historic restoration. 9.RR:139.
2. Construction-Related Claims against Lockhart and the Blunts (Cause
No. D-1-GN-12-001270). Entirely separately, the Blunts hired contractor
Lockhart a few months later in about March or April, 2012. Serafine testified
she saw "that an apparent drainage system was being installed...close to my
2
property." 10.RR:189 (Serafine). Then “orange lines were painted along my
driveway which appeared to be where the next part of the trench was going to
be, on my driveway." The double lines extended for some 43 feet, parallel to
the north wall of her house, about 10 feet from it. Ibid. Alexander Blunt
testified to a photo of the orange lines, and that his surveyor’s stake was
planted to mark the lines’ location. 11.RR:121, 123-24. Various photos
showed the stake planted right through the entry way into Serafine’s yard, the
space closed off by the still-standing gate. 18.RR:213, 233 (Blunt Exx. 56,
79). Seeing the lines, Serafine hired licensed engineer David Price.
10RR:189. He inspected on site. Ibid. Based on Price’s engineering opinion,
Serafine obtained a TRO, a temporary injunction was denied, and construction
went forward. The City stopped construction and ordered protective measures
for Serafine’s tree. 3.RR.24 (Blunt). Serafine sued for damages.
CR:15-29(Petition ¶17).
Serafine alleged the trenching and underground drainage system
interfered with the lateral support of her land . She claimed it permanently
“removed soil, created underground voids, and [removed] ground and surface
moisture” in a manner harmful to her land and the foundation of her house.
CR:18-19:¶19. Following expert reports, Serafine pled that “in all reasonable
3
engineering probability, changes in the land and soil...will interfere with lateral
support, [and] will diminish the weight-bearing capacity of the soil, []
and...will damage Plaintiff's land, house, trees, and a small building...she
intended to turn into an office.” CR19:¶20. There were “no plans, no specs,
no drawings, no analysis of the clay soil in the area, and no competent
engineering input or supervision.” CR19:¶24. Serafine alleged Lockhart was
engaged in unauthorized practice of engineering. CR:22. Ultimately, at trial,
there were no plans or specs for the construction.
At trial Serafine’s engineer Price testified that the soil was “very plastic,
goes through high shrink/swell variations.” 10.RR:220. “When it's dry, it
shrinks, when it's wet, it swells up.” 10.RR:206. As a result, “you're going to
get a tilted site.” 10.RR:208.
Price anticipated that a slow “lateral shifting” of Serafine’s land was
taking place because “when you dig a ditch --you've upset the soil dynamic...if
you dug a hole in sand, obviously it breaks up, because when you dig a hole it
caves in.” 10.RR:228.
Cracks formed throughout Serafine’s house, she testified, and actual
“breaks in the drywall...and large and long cracks in every room;” the
craftsman-period front porch posts became “misaligned”; and other damage.
4
9.RR:448.
Serafine’s photographs were excluded as a sanction. See infra.
Serafine pled damages for diminution in value and stigma.
CR19:¶23,26.
Her valuation expert Rudy Robinson testified to damages between
$164,522 and $196,800. 10.RR.291.
3. Claims against only Blunts in trespass-to-try title (Cause No. 12-1270
above).
Serafine claimed limitations title against the Blunts by adverse
possession or alternatively agreed boundary or prescriptive easement. CR:15-
29 (Live petition, Nov., 2012). Serafine claimed ownership from the north
curb cut entering her driveway, then along a set of 200-pound railroad ties she
had installed by 1978 to mark her driveway, then along the original fence line.
Ibid.
Serafine also sued the Blunts for fraud by non-disclosure, but did not
pursue it at trial. Serafine testified that neither of the Blunts (nor Viking) told
her they planned to tear out the original fence. Serafine testified that Ashley
Blunt affirmatively told Serafine they would not tear it out. 9.RR:142. Ashley
5
Blunt's testimony did not dispute this.
Serafine was represented by counsel for virtually all of the 12-1270 case
including the Blunts’ counterclaims, successively by Rob Hargrove and then
Ray Bass. Mr. Bass was lead counsel. Serafine, a lawyer, also worked on the
case.
Serafine obtained separate legal opinions and a second engineering
consultation in addition to Price. Fee bills are shown at 17.RR:176,178;
18.RR:10, 13, 16; these exhibits were excluded.
4. Blunts' counterclaims against Serafine (Cause No. 12-1270 above).
The Blunts filed a counterclaim against Serafine for trespass, a month before
trial. CR:419-421. The Blunts had also filed two counterclaims against
Serafine in 2012. CR:6-8. As to the latter claims, Serafine had taken
interlocutory appeal in this Court for the denial of dismissal under the Citizen’s
Participation Act. The Court stayed the 12-1270 case in December, 2012.
CR:20-21.
Procedural History
By May of 2015, the trespass-to-try title action, the lateral support/
construction case, and the Blunts’ counterclaims against Serafine in the 12-
6
1270 case were still stayed pending interlocutory appeal. In the 13-4023 case,
Viking and Serafine had agreed to a trial setting of October 12, 2015.
On June 26, 2015, this Court remanded in part for Chapter 27 relief to
Serafine but allowed the mixed claim for alleged interference by threats and
harassment to go forward. Serafine v. Blunt, 466 S.W.3d 352
(Tex.App.—Austin 2015, no pet.). Serafine later claimed this was fabricated
and that Alexander Blunt had knowingly testified falsely to generate the claim.
CR:719-739.
On Aug. 24, 2015 the parties and trial court signed an agreed order
consolidating 13-4023 into 12-1270, but keeping the trial date of October 12,
2015. The Blunts the brought a new counterclaim against Serafine for trespass
on Sept. 11, 2015. CR:419-421. Serafine sought continuance and was denied.
CR:506-510; 551-54.
Four days before trial, on Viking’s motion, the trial court entered an
evidentiary sanction against Serafine and excluded most of Serafine’s exhibits.
CR:558-559.
At trial, Serafine was denied rebuttal. 12.RR:32.
Serafine took nothing at trial. Final judgment signed on Decemberr 3,
2015 sanctioned Serafine for $10,000 and awarded $0 in Chapter 27 relief.
7
CRSuppIII:94-129.
SUMMARY OF THE ARGUMENT
The underlying story here is about private property rights. The Blunts
bought the lot neighboring Serafine’s some 32 years after she had held her lot
as it was. The Blunts knew—from more than a decade as tenants and from her
contentious correspondence when Mrs. Blunts’ parents owned the adjoining
land—that Serafine adamantly wanted her land and fixtures as they were. They
criticized her, but still bought the house next door that had been “built out” in
the old days to less than 2 feet from the property line. Serafine’s house was 12
feet from it, a driveway, perhaps future carport. What the Blunts could not
take from Serafine legally, they took by deception, with a promise the fence
would stay where it was, and facilitated by Viking. That is the bottom line of
this lawsuit.
ARGUMENT
I. The great weight and preponderance of evidence—or conclusive
evidence—established Serafine’s title by limitations no later than
November 23, 1988.
A. The elements of adverse possession were met.
Serafine bought Lots 5 and 6 in Hyde Park on August 11, 1977.
8
Serafine’s deed was produced at trial. 9.RR:112, 113, 116. It is stamped
multiple times showing it was recorded the next day. 18.RR.278-82 (Deed),
At time of trial Serafine had owned, used, and enjoyed the land continuously
for over 38 years. She paid taxes on it each year. 9.RR:116; 10.RR:33. Lots
5 and 6 are known as 4011 Avenue D.
Serafine marked the north boundary, which was observed by others for 37
years.
Upon purchase in 1977, Serafine and her then- boyfriend moved into the
house on Lots 5 and 6. Thereafter they laid down railroad ties "[t]o mark the
line of the boundary, to mark -- to mark the line that I was claiming and to
divide my driveway from the front yard of 4013 or what was then Ms. Davis'
yard.” 9.RR:119-120.
(By Mr. Bass, Serafine’s counsel:)
Q. Now, I know -- can you give us an exact date that you put
those railroad ties down?
A. I know that it was before Thanksgiving of '78.
Q. Okay. Have you -- at my request, have you calculated the date
that Thanksgiving occurred in 1978?
A. Yes. November 23rd of 1978 was Thanksgiving, and I know
that they were put down well before Thanksgiving, because I
specifically remember what we
were doing on Thanksgiving and they were there.
Q. But whether or not it was well before -- you could tell this jury
with certainty you put those railroad ties there prior to
9
Thanksgiving of 1978; is that correct?
A. Yes, sir, before November 23rd of '78.
9.RR:119-120.
(By Blunts’ counsel Mr. Peters):
Q: Why did you feel the need to do that, was Ms. Davis a mean
lady?
A: Of course not. In order to delineate the boundary and make
it consistent with the chain link fence so that their -- so that
the boundary would be clear, I wanted the boundary to be
clear.
Q. Why did you feel the need to have a clear boundary?
A. I wanted to know where my property begins and ends so that it
would be very clear to everyone.
10.RR.41-42.
(By Blunts’ counsel Mr. Peters)
Q. But you didn't have a surveyor come out and verify whether or
not it was on your property?
A. I didn't -- I did not have a surveyor come out.
Q. But your thought was this is already my property?
A. Well, whether it was or not, I was going to mark it and take it.
10.RR:49.
Serafine testified she also placed a horizontal tie to create “the space that I
needed or anyone else needed to put one car and pull that car forward and put
another -- at the time there were two of us living there together, and put two
cars in the driveway.” 10.RR:42.
10
The boundary was observed by others.
Alexander Blunt testified, “There is a horizontal tie. I’ve observed it
many times.” 11.RR:132.
Edward Schrump—Ashley Blunt’s father—had owned the neighboring
lot at 4013 since 1994. He noticed Serafine’s railroad ties. He testified he
“paid them no mind,” but he guessed they were there when he bought the
property and he did not install them. 11.RR:275.
When the neighboring front yard at 4013 was mowed, workers never
mowed past the railroad ties into Serafine’s property. 9.RR:125. So grass on
her side along her driveway would be higher, and grass on the neighbor’s side
was shorter. Serafine testified she had taken photos of it. 9.RR:125-126.
The photos were excluded as part of the sanction.
The railroad ties are “about six to eight inches wide” and Serafine
“considered [her] property to be all the way up to the furthest edge of the
railroad ties.” 9.RR:125. At time of trial, the railroad ties had remained in
place nearly 37 years. 9.RR:121.
The north boundary fence was an undisturbed boundary and barrier for 34
years.
When Serafine purchased Lots 5 and 6 in 1977, the back yard was already
completely enclosed by fencing on all four sides. 10.RR.60.
11
Anyone looking at the boundary fence that Viking tore out would see that
it matched exactly the fencing attached to two sides of Serafine’s house. Those
portions of matching fence are still standing.
Below are Viking’s trial exhibits, testified to by Serafine.
The following photograph is Viking Ex. 17, 18.RR:272-277. At the
corner of the house, the matching fence is attached to a pole, right at the house.
12
Fence at southeast corner of Serafine’s house
Viking Ex. 17, 18.RR:272-277.
13
After a break in the fence to accommodate the wall of the house, the
fence continues again from the opposite house-corner, again attached to a pole
placed immediately at the house. The same fence extends for a short distance
and terminates in an identically-matching gate. Below is Viking trial Exhibit
17, 18.RR:272-277.
14
The gate then latched directly to the north boundary fence at issue here,
which stretched for 53 feet (10.RR:163). The north boundary fence is shown
in the Viking trial exhibit below. Viking Ex. 17, 18.RR:272-277. The gate is
only very slightly seen at far left. 1
1
See also Blunts’ Ex. 79, 18.RR:233—a view of the north boundary fence
taken from inside the Blunts’ backyard.
15
Boundary fence to which gate attached. Viking trial Exhibit 17, 18.RR:272-
277.
16
Taken together as the photographs show, Serafine’s backyard was not
accessible except from inside the house, or through the gate attached to the
north boundary fence that Viking tore out. Since 1977 Serafine’s north
boundary was the “chain link fence between my backyard and Ms. Davis’
yard.” 9.RR:116.
Serafine testified that she claimed the fence as hers and the property up
to it, because her gate latched to the fence, the gate and the fence “belonged
together” because they matched, and the gate and the fence matched the other
fencing attached to both sides of her house. 9.RR:124,125; 10.RR:60.
Serafine testified she closed and “locked” the gate with its horseshoe
latch as she wished to keep people out and never let anyone inside the fence
without her permission. 9.RR:117-118. She kept grass and shrubs on her side
of the fence and mowed up to the fence. 9.RR:121. With some gravel she
made a path that ran alongside the fence “so that you could walk behind the
[small] building [that was there] to where the garbage area is.” 9.RR:122.
(By Mr. Bass, Serafine’s counsel:)
Q: And did you ever move that fence?
A: No.
Q. Did -- was anyone ever authorized to climb over that fence and
come into your backyard?
17
A. No, not ever.
9.RR.117.
Serafine always considered the property to be hers, all the way up to the chain
link fence. 9.RR:121,124.
The north boundary fence remained in place until the Blunts paid Viking
to tear it out in December, 2011.
Serafine had more than 30 years of peaceable possession, with open,
notorious use.
When Serafine bought Lots 5 and 6, the property next door at 4013 was
owned by Mrs. Zelphia Davis. Edward and Susan Schrump purchased 4013 in
1994. 11.RR:275 (Edward Schrump). The Schrumps are the parents of
defendant Ashley Blunt. Ashley moved into the 4013 house as her parents’
tenant in 1994. 11.RR:163-64 (Ashley Blunt).
The 1994 Stearns survey was admitted into evidence. 11.RR:43. It was
addressed to the Schrumps, dated near their time of purchase—Aug. 29,
1994—and showed the chain link fence at Serafine’s north boundary extending
past the property line that Stearns drew, into the land at 4013. Blunt Ex. 34,
18.RR:172-174.
It is undisputed that Ashley and later both of the Blunts occupied the
Schrumps’ 4013 house next door to Serafine at various times during the 1990's
18
as tenants, and both occupied it again as tenants from 2005 to 2014, perhaps
purchasing it near the latter part of that period. No current deed of theirs was
produced at any time.
With Serafine’s north boundary marked in front with railroad ties along
the driveway by 1978, and marked in the backyard by the north fence since
before 1977, no one ever complained.
Edward and Susan Schrump and Alexander and Ashley Blunt owned or
occupied the property on the other side of Serafine’s north boundary for 17
years from 1994 until 2011 when, without Serafine’s consent, they paid Viking
to tear out her north boundary fence.
Serafine testified:
Q. (BY MR. BASS)
[] At any time up to this good day, do you know, has anyone ever
filed a lawsuit contesting your boundaries up to that fence?
A. Never, no.
9.RR:122-23.
Both Blunts confirmed they knew Serafine did not want the original
fence torn out. 11.RR:166-167, 170 (Ashley Blunt); 11.RR:97 (Alexander
Blunt: "She was against it.")
In a handwritten note to Serafine in mid-2008, Alexander Blunt described
the fence on Serafine’s north boundary as the fence “on our property line.”
19
Blunt Ex. 5, 18.RR:155-56. Ashley Blunt also testified the fence was “on our
property line.” 11.RR:192. This was a boundary fence.
About the same time, Serafine in a handwritten note informed the Blunts
(then tenants), "I'm not planning to have the existing fence between our yards
removed." 10.RR:52 .
In June, 2008—fully three and a half years before tearing out the
boundary fence—the Schrumps and Blunts all signed a letter and sent it to
Serafine, showing they knew Serafine was making an adverse possession claim
to the north boundary. Blunt Ex.8, 18.RR:161 (letter dated 6/23/2008).
All fencing and railroad ties on Serafine’s Lots 5 and 6 remained
undisturbed for more than 30 years.
Serafine’s tenants used Lots 5 and 6 as residential property, without moving
the fence or railroad ties.
It is undisputed that all the fencing (since 1977) and the railroad ties
(since at least Nov. 23, 1978) remained in exactly their original place until the
Viking tear-out of 2011.
Serafine and her partner lived at the 4011 house on Lots 5 and 6 from
1977 until 1981. When they separated and moved out in 1981, Serafine began
leasing it to tenants. She leased it until 2002 when she began a historic
restoration and when it was finished in 2004 she moved back in. See infra.
20
Serafine testified:
(Cross-examination by Mr. Peters, Blunts’ counsel)
Q. So you left in 1981, and then you started renting out the
property, correct?
A. That's correct.
Q. And your tenants used the property, correct?
A. Yes.
10.RR:44
Serafine testified she was aware of how the tenants used the property.
10.RR:44-45. In all cross-examinations by the Blunts, Lockhart, and Viking,
there was not even a suggestion that at any time Lots 5 and 6 were not used, or
that any tenant did not use Lots 5 and 6, or that any tenant used Lots 5 and 6
in any unusual way, used it for grazing animals, used it other than an ordinary
resident would, or changed anything in the yard or driveway that changed the
north boundary as it had been marked by the fence and railroad ties.
Ashley Blunt testified:
(By Mr. Peters, her counsel)
Q. Okay....she [Serafine] rented out the property. Did you ever
know any of her tenants?
A. I knew most of her tenants. Actually I think all of them when I
lived there, we were always friends.
Q. Okay. And did you ever have occasion to go inside the house
several times?
A. Yes, I went in there and -- when two women lived there that
21
were roommates, my brother dated one of them, we would have
parties, go over there and hang out. I went over there when a
neighbor I know lived over there, I would baby-sit his daughter
over there, so I was over there on many occasions.
11.RR:177.
Serafine’s last tenant “vacated” in 2002. 10.RR:45. She then began a
two-year historic restoration of the house, from 2002 to 2004, and was finally
able to move back in, in 2004. 9.RR:118, 10.RR:163-64, 10.RR:45 (Serafine).
Serafine’s last tenant Nils Juulhansen was called by the Blunts.
Juulhansen and his family lived on Serafine’s property until they moved next
door to 4013. 11.RR:256 (Juulhansen). Juulhansen did not testify that he or
anyone else, including Serafine’s property manager, made any changes in the
fencing or railroad ties or that he changed the use of the yard or driveway.
Serafine had a property manager who managed 4011. 10.RR.173. He
recommended to Serafine that she replace the foundation. 10.RR.173. When
Juulhansen moved next door in 2002, Serafine began the restoration, which
lasted to 2004. 10.RR:45. Serafine started with the foundation. Serafine
hired engineer Floyd Goodrich for this purpose. 10.RR:173. Goodrich made
inspections over some period of time. 10.RR:174. He then made his first of
22
three reports to Serafine on December 5, 2002. The Blunts offered
Goodrich’s firm’s reports as “Business Records of Aztec Associates.”
18.RR:177-190. The reports were admitted for specified purposes. 10.RR:104.
Goodrich and Aztec specified, supervised, and later certified repair work for
Serafine over more than a four-month period, ending in a report re-issued on
March 19, 2003. 18.RR:188. None of Goodrich’s recommendations called for
removing the railroad ties or any fencing. Id. Serafine followed all his
recommendations. 10.RR:174.
During Serafine’s remodeling from 2002 to 2004, Sam Archer was living
across the street from Serafine’s property. 11.RR:290 (Archer). He testified
that he saw the remodeling in progress. He saw the workers. 11.RR:291.
Archer is a friend of Alexander Blunt and testified for the Blunts. 11.RR:292.
He lived across the street from Serafine’s property continuously from 1999 to
2010. 11.RR:290 (Archer). Archer did not testify to anything unusual at
Serafine’s property, to any vacancies, to any changes in the use of the yard or
driveway, or to changes in the marking of the north boundary by Serafine’s
fence and railroad ties. The workers he saw were remodeling inside of 4011.
11.RR:291.
23
B. No relevant evidence contradicted these facts.
Defendants presented only irrelevancies.
To the extent they might have presented contradictory evidence, none
existed.
In addition to Serafine’s testimony, six witnesses were called by the
Blunts who were well familiar with how Serafine’s property was used during
the time it was leased to her tenants: Edward Schrump and Susan Schrump
(owned 4013 next door to Serafine’s Lots 5 and 6 and visitied 4013 frequently,
see supra); Sam Arhcer (lived across the street from Serafine’s property from
1999 to 2010, supra); Nils Juulhansen (lived at Serafine’s property until 2002,
then moved next door to 4013, supra); Ashley Blunt (lived at 4013 next door
to Serafine’s property in the 1990's, knew the residents of 4011 well and
visited them frequently, later lived at 4013 from 2005 until 2014); and
Alexander Blunt (lived at 4013 in the 1990's and again from 2005 to 2014). No
one ever testified that Serafine’s Lots 5 and 6 were not used at all times in an
ordinary residential manner, or testified that Serafine’s Lots 5 and 6 were
altered in any way to disrupt the fencing and railroad ties on the north
boundary, until Viking tore out the north boundary fence in 2011.
24
C. Grant’s Occupied Line Survey is accurate.
James Grant, LPLS was Serafine’s expert surveyor. He testified that
Hyde Park was platted in 1891 without artificial monuments. 9.RR:66. In the
case of Hyde Park, “there is not a note on the plat.” Ibid. “So there is no
explanation at all on the face of that subdivision plat that guides a ...modern
day surveyor....” 9.RR:67. Blunts’ surveyor Holt Carson confirmed that in
Hyde Park original monuments “just do not exist.” 12.RR:15.
Grant reconstructed Serafine’s original north boundary in an “occupied
line survey”—a map of “visible above ground improvements along or near a
line between two landowners. It could be a fence. It could be a rock wall. It
could even be a curve.” 9.RR:67. The map is at Viking Ex. 48. 18.RR:284-
85. The second page states metes and bounds describing Serafine’s claim.
Ibid. 2
Grant’s notes on the map show the points he used to reconstruct
Serafine’s original north boundary:
• “Calculated point on north edge of railroad ties”
• “Occupied Line follows north edge of railroad ties”
2
The same map, clarifying the right-hand portion expanded to show detail
is at 18.RR:286(Viking Ex. 53).
25
• “Middle of closed latch as gate used to close”
• “Old chain link fence/occupied line, reconstructed from records and
photograph”
• “Calculated corner”
This Court in Nabours v. Whiteley, 466 S.W.2d 62 (Tex.Civ.App.
—Austin 1971), held that
An axiom in boundary suits is that the footsteps of the original
surveyor must be followed, if ascertainable in locating the line. If,
however, there is insufficient evidence to establish the line
followed by the original surveyor, then ancient boundaries may
be proved by evidence of common reputation. (citing Stover v.
Gilbert, 247 S.W. 841 (Tex. 1923).
466 S.W.2d at 64(emphasis added).
Grant did exactly what Nabours, discussed supra, prescribes. He laid out
an Occupied Line Survey using the gate latch and other “ancient” “evidence of
common reputation.” Nabours, 466 S.W.2d at 84.
D. Serafine met the 5, 10, and 25-year statutes for limitations title.
This case is on all fours with the fence cases, Brohlin v. McMinn, 341
S.W.2d 420 (Tex. 1960) and Nabours v. Whiteley, 466 S.W.2d 62 (Tex.
App.—Austin 1971).
With the railroad ties in place for 37 years (1978 to trial time) and the
original matching fence in place for more than 33 years (before 1977 to tear-
26
out in 2011) , and with Serafine’s recorded deed and tax payments, Serafine
had met the five-year statute of limitations at the latest by November 23, 1983
(from 1978 to 1983). This was 28 years before Viking tore out the north
boundary fence in December, 2011. Thereafter, Serafine met the five-year
statute again, 46 times, considering every five-year time period beginning in
1979 (79 to 84), beginnign in 1980 (80 to 85), and beginning in 1981 (81 to
86), and so on.
Serafine met the ten-year statute of limitations—even if she had had no
deed and had not paid taxes (which she did)—at the latest by November 23,
1988 (from 1978 to 1988). This was fully 23 years before Viking tore out the
fence in December 2011. It was six years before the Schrumps even bought
the adjacent land in 1994. Serafine met the ten-year statute 24 more times,
with each ten-year period ending on November 23rd of 1989, 1990, 1991, and
so on, up to November 23rd of 2011—a few weeks before Viking tore out the
fence in December 2011.
As to the 25-year statute, Serafine had met this by November 23, 2003
(from 1978 to 2003). That is more than eight years before the tear-out.
Serafine met the 25-year statute again in 2004, 2005, 2006, et seq., calculating
each of those years as concluding a 25-year span of use, enjoyment, and
27
occupation.
The above are conservative calculations beginning with the latest
possible date of Serafine’s placing the railroad ties by Thanksgiving of 1978,
not counting her purchase and immediate use beginning on August 11, 1977.
With Serafine’s recorded deed, she may have met even the three-year
statute of limitations in any three-year period.
Because Serafine offered evidence that meets the elements of adverse
possession, and that evidence was uncontradicted at trial, the Court should
reverse and render judgment in her favor on legal sufficiency. Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001). This would restore both
properties to the state they were in for over at least three decades.
Alternatively, because the verdict goes against the great weight and
preponderance of the evidence discussed above, the court should reverse and
remand for a new trial on factual-sufficiency grounds. Id. at 242.
28
II. The court erred in expunging the notice of lis pendens---
misconstruing Prop. Code §12.0071, defeating appellate jurisdiction
over the res, and ignoring statutory procedural requirements.
The question of whether the trial court correctly construed the “probable
validity” phrase in Prop. Code §12.0071 is a matter of statutory interpretation.
De novo review emphasizes the intent of the legislature and plain meaning of
the text. City of Houston v. Bates, 406 S.W.3d 539, 543-44 (2013).
The trial court expunged the lis pendens notice on November 13, 2015.
CRSuppVI:14-20 (order). Serafine filed a motion to withdraw or vacate it and
sought the hearing required by Prop. Code 12.0071(d). CR:838-851. No
hearing was held. The Blunts filed a response. CR:858-61. Serafine sought
a ruling on the motion, CR:1032-1036 and objected to the refusal to rule.
CR:1037-1039.
A. “Probable validity” means “legally cognizable.”
In its Conclusions of Law the court stated, “Plaintiff failed to establish
by a preponderance of the evidence the probable validity of a real property
claim in this case.” This recites the language of Prop. Code §12.0071.
CR:904.
In its Findings of Fact the court found that
• the chain-link fence was “on the property of [the Blunts];”
29
• the railroad ties “were temporary in nature;”
• the reconstruction method of Serafine’s surveyor Grant was “unreliable.”
These are substantive findings that would lead a trier of fact to render a take-
nothing judgment. CR:903. The court thus conflated a “valid claim” with a
“successful claim.” The term “probable validity” refers to the claim, not the
outcome. A claim can be valid and the outcome determined by fact-finders,
wrong.
Black’s Law Dictionary, 3 defines claim to include “an interest or remedy
recognized at law.” An earlier edition of Black’s 4 shows “valid” having
the synonym “legal.” Black’s, 5th ed. at 803. “Legal” means
“[c]ognizable in courts of law.” Id. at 463. There is nothing about being
cognizable that implies a particular claim will succeed under the variable
circumstances of a trial.
The inquiry on the “probable validity” of a claim should be akin to that
of Federal Rule 12(b)(6). That rule emphasizes that a claim should have all the
necessary elements; not be comprised of bare conclusions; and is a cause of
action recognized by law. A truly invalid claim under 12.0071 could be one
3
Black’s Law Dictionary, Garner, B., ed., 10th Edition, 2014.
4
Black’s Law Dictionary, Black, H., ed. Fifth Edition (Abridged), 1983.
30
that is moot, defective, does not concern real property, makes statements
without laying a claim, or asserts a principle not cognizable to courts as we
know them, such as a wish or desire or fanciful assertion.
B. The expungement of a valid but rejected claim defeats appellate
jurisdiction over the res.
A claim rejected at trial, far from being rendered invalid, is rendered
appealable. The problem with interpreting “probable validity” of a claim as a
claim having a likelihood of success—and therefore having no validity if lost
at trial—is that it renders null appellate jurisdiction over the real property res.
Appellate courts’ judgments and remedies would be meaningless, difficult, or
expensive if the property has been sold out from under the court’s jurisdiction
to render relief. The legislature could not have intended to deprive appellate
courts of their jurisdiction to hear meaningful appeals in the real property area.
A lis pendens notice remains effective on appeal because a court that has
acquired jurisdiction is entitled to proceed to "final exercise" of its
jurisdiction. Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d
768, 771 (Tex. 1979).
C. The trial court ignored statutory procedure.
There was also a procedural defect in how the court expunged the lis
pendens.
31
Property Code subsection 12.0071(d) provides:
Notice of a motion to expunge under Subsection (a) must be served
on each affected party on or before the 20th day before the date of
the hearing on the motion.
Here, there was no motion, no notice of motion, no service of any kind,
no hearing, and no 20-day notice of a hearing. Section 12.0071 makes no
provision for a sua sponte order. 5
A trial court "err[s] in expunging [a] lis pendens sua sponte and without
proper notice to each affected party," and "if the trial court erred in expunging
the...lis pendens, it remains in effect." In re Estate of Francisco Julio Lerma
Sanchez, No. 04-11-00332-CV at. 6-7 (Tex. App.—San Antonio April 18,
2012).
This Court should vacate the expungement and clarify it is void
retroactively, in case there has already been a transfer.
5
Some months later, after appeal was filed, Serafine filed a lis pendens
notice of this appeal.
32
III. Declaring the Carson survey as the boundary was error.
The Carson survey, declared as the boundary, was not supported by the
court’s findings and conclusions, and was against the great weight and
preponderance of the evidence, which conclusively established that the Carson
survey was error.
Review of this issue should be limited to the court’s findings of fact and
conclusions of law. CR:901-904.
After the close of evidence, before charging the jury, the parties reserved
to the court a decision on the boundary, if the jury did not find adverse
possession. There was an expectation and some assurance from the court that
if this were necessary the court would hold a hearing to determine it.
12.RR:67.
The trial court, without a hearing, declared the Carson survey definitive.
CRSuppIII:122 (final judgment).
The court’s findings do not support Carson’s survey because they are
conclusory statements that the methods of plaintiff’s surveyor Grant were
“unreliable,” and that Carson’s methods were “detailed” and “specific,” while
the court concluded that Carson relied “on the recorded deed” of the Blunts.
CR:901-904¶¶10-11. There was no evidence Carson relied on any recorded
33
deed of the Blunts, and no evidence that, if he had, there had been no changes
in the intervening three years since his 2012 survey.
All of the remaining findings, while unrelated to the veracity of Carson’s
survey, are also in contradiction of Texas adverse possession doctrine. For
example the court found that the old fence was “on” the Blunts' property. This
is in favor, not against, Serafine’s adverse possession. Equally, that Serafine’s
surveyor Grant used lines of occupation, is not a ground that supports
Carson’s survey. Grant's doing so when the “priority of calls” fails is
supported by this Court’s decision in Nabours. See supra. That Serafine
allegedly “retracted” her claims is both false and irrelevant to how to survey
the boundary.
A. The Carson survey is untenable under any theory.
Several exhibits of photographs of the 2012 construction area were
admitted at trial. These showed where Carson had placed his stake marking the
boundary, at the place where his orange line (the right-hand one, of two lines)
marked the boundary separating the Serafine and Blunt properties.
Alexander Blunt testified to several of these exhibits.
Q. (BY MR. PETERS [Blunts’ counsel])
And Mr. Blunt, if we would look at -- if we could look at Blunts'
Exhibit 56, what does that picture depict, Mr. Blunt?
34
A. That is -- that stake with the orange flag on it shows the
property boundary as determined by Holt Carson.
11.RR:121.
Q. (BY MR. PETERS)
And if we could look at Blunts' Exhibit 62, and there's that stake
again, right?
A. Yes, sir.
Q. And if we scroll down a little, why are these lines painted
here?
A. Those were sprayed by the surveyor to demarcate the boundary
line.
11.RR:123-24.
One such Blunt exhibit is below, Blunts’ Ex. 79, 18.RR:233, which was
admitted at 11.RR:135.
35
Blunts’ Ex. 79, 18.RR:233.
Below is another Blunt exhibit, Blunts’ Ex. 56, 18.RR:213, admitted and
testified to by Blunt at 11.RR:121, as quoted above. The stake is shown in the
distance.
36
Blunts’ Ex. 56, 18.RR:213
37
Carson’s line plainly cuts through Serafine’s entry to her back yard.
Serafine’s gate is still standing there. The gate had closed against that
entry space for the previous 35 years, the photo being taken during the 2012
construction (1977 to 2012 is 35 years).
If Carson’s survey were correct, every time the gate closed, it would
close over part of Lot 4, the Blunts’ lot. If Carson’s survey were correct, every
time a person walked into Serafine’s back yard, they would walk onto Lot 4,
the Blunts’ lot. If Carson’s line were correct, people should enter Serafine’s
yard walking side-ways to fit through, if they did not wish to trespass. Indeed,
shortly after this Court’s mandate, which lifted the interlocutory stay, the
Blunts filed a counterclaim against Serafine alleging that “on many
occasions” Serafine trespassed onto their property. CR: 419-21 (9/11/2015).
Carson’s line is untenable. There is no set of facts sufficient to support
it. It is undisputed that Serafine’s gate and entry to her yard had been
undisturbed from 1977 until Viking’s tear-out of the gate-post and fence in
2011, a few months before these photos. It is undisputed the gate itself
remains today.
Viewed closely, Carson’s survey map shows that he ignored pre-existing
38
monuments marking three corners of the Blunt’s property. These three are
notated “iron rod not used.”
B. The trial court erred in finding Serafine’s surveyor Grant’s methods
“unreliable.”
Holt Carson testified that in locating the footsteps of the original
surveyor, in Hyde Park “there is no certainty as far as finding an original
monument. They just do not exist.” 12.RR:15. Likewise Serafine’s surveyor
James Grant testified that the 1891 plat was laid out without original
monuments notated. 9.RR:66. The trial court’s finding of fact that Grant’s
method was “unreliable” was error because his method was exactly that
prescribed in Nabours when original monuments do not exist.
C. The court erred by not holding a hearing on the boundary.
The Court issued Findings of Fact and Conclusions of Law explaining its
decision to declare the Carson survey definitive. CR:901-904. The findings
state that “Holt Carson, surveyor and expert witness for [the Blunts] drew his
survey...by relying on the recorded deed of the Property in the Travis County
records.” CR:903(emphasis added). There was no evidence of this. Even if
there were, there was no evidence such reliance was confirmed between the
date of the survey, Jan. 18, 2012, and the time the court entered its order on
Nov. 13, 2015.
39
The court was not entitled to find controlling facts without a hearing.
About a week after trial Serafine moved for a hearing, suggesting facts on
which the court should ask the parties to submit evidence. CR:569-573
(motion of 10/23/2015). At the Nov. 10, 2015 hearing, formally noticed for
attorney’s fees, the court announced it had already decided the boundary
according to the Holt Carson survey. 13.RR:70,78. The court allowed
Serafine “five minutes” to argue, 13.RR:71, but erroneously held that all the
evidence necessary for its decision had been presented at trial. 13.RR:70.
40
IV. The court erred in granting the MSJs of Viking Ltd. and Viking GP
on (a) negligent training and supervision and (b) nuisance.
The claims should be remanded for trial. Viking’s motion is at CR:56-
79; Serafine’s opposition is at CR:82-123. The order is at CR:288-290.
A. The court erred in granting summary judgment on negligent
hiring, training, and supervision (“negligent supervision”).
1. The court erred in conflating negligent supervision
and ordinary negligence.
Viking relied on Rosell v. Central West Motor Stages, Inc., 89 S.W.3d
643 (Tex.App.—Dallas 2002, pet. denied). CR:64. Serafine had pled gross
negligence. CR:32-50¶¶111-114 (petition). Viking’s argument was: (1)
“Plaintiff’s gross negligence claim fails as a matter of law, therefore Plaintiff’s
remaining claims all sound in ordinary negligence making Plaintiff’s negligent
entrustment (sic) claim immaterial”; and (2) Viking “stipulated that Defendants
accept the liability of [its] independent contractors,” as Rosell would require.
CR:64-65. This is error because Rosell allows the claim not when gross
negligence is proved but when it is alleged. Second, Rosell is arguably
wrongly decided because negligent supervision is an inherently different claim
from ordinary negligence.
Serafine’s claims survived summary judgment on gross negligence
41
because it is undisputed Viking came onto Serafine’s property, destroyed some
of it, left it behind, and does not admit to any mistake. Second, Viking’s
"stipulation" evidence was its interrogatory response, improper as summary
judgment evidence. Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998).
CR:288-290 (ruling on objection), CR:124-128¶3 (objection). Moreover,
Viking’s live answer denied all liability.
2. Serafine raised a fact issue on each element.
“The elements of a claim for negligent supervision...are (1) the defendant
owed a legal duty; (2) the defendant breached it: (3) the plaintiff suffered
damages; and (4) the damages were proximately caused by the breach.”
Latimer v. Memorial Hermann Hospital Sys., No. 14-09-00925-CV
(Tex.App.—Houston [14th Dist.] Jan. 20, 2011). This applies to independent
contractors. King v. Associates Commercial Corp., 744 S.W.2d 209, 211
(Tex.App.—Texarkana 1987).
Viking raised no objection to any part of Serafine’s evidence.
Duty. A master has a duty to the public. LaBella v. Charlie Thomas,
Inc., 942 S.W.2d 127,137 (Tex. App.—Amarillo 1997). Viking had a duty to
not interfere with Serafine’s as well as others people’s property rights, as
Serafine pled. CR:32-50 (petition).
42
Clanin knew in his first contact with Blunt that he had a dispute with
Serafine about the fence. CR:107. Clanin passed Serafine’s door on every site
visit without stopping to inquire. CR:99. During construction Perez told
Clanin there was a “problem,” but Clanin told Perez, “stay away from it.”
CR:107-108(Perez). Clanin and Perez both did “final inspections” and noticed
or should have noticed the damage, but did nothing. CR:101.
Breach of duty. Viking provides no training or supervision to ensure
their employees have an understanding of other people’s property rights.
Salvador Chavarria runs Viking and has weekly meetings with the“sales
dealers,” Jimmy Clanin’s position. Chavarria testified, “I've owned the
company for eight years and that's close to 400 meetings.” CR:205.
He testified at deposition:
Q· ··Have you had any meetings recently about what
the standards are for building a fence so that it doesn't
approach-- encroach on adjoining land?
A We have not.
Q· ··I was asking if you had recently.··Have you ever
had such a meeting in your knowledge involving
Viking's standards for building a fence so that it does
not encroach on adjoining land?
[]
A [] I'm sure at some point we've discussed property
line situations. We are not a survey company.
Our contract with our customers defines that we have
43
no responsibility to property line disputes. And,
basically, we build fences where people tell us to
build fences.
CR:111(emphasis added).
Viking’s “Fence Proposal” to its customers states, “Viking is relieved of
all liability related to fence location and property lines.” CR:197.
Chavarria testified that the proposals—“Some have drawings of where
the fence goes, some don't. This one doesn't.” CR:204.
Q: Okay. When they don't have a drawing attached, how does the
fence erector know where the fence is supposed to go?
A: Based on discussions with the customer.
Q: Is that all?
A: For the most part.
CR:204 (Chavarria deposition).
Mr. Clanin testified at deposition:
Q· [] ·How would you know it was-- it was on the
property line?
[]
A Okay. That's not really for me to decide. I'm not a
surveyor.
[]
Q. Does the customer normally delineate the
line?
A Yes.
Q· ··How do they do it?
A Based on existing landmarks or us going and
standing at the points.
Q· .. standing at a point and then you just remember
44
that point?
A Well, I might have-- I might have marked it. [ ]
CR:110; CR:219-220.
Clanin testified that when the new fence went up, there were no lines
painted on the ground. CR:110. The actual fence erector or “crew,” Mr. Perez,
also confirmed there was nothing to mark any line. No paint, string, or “little
flags.” CR:110; CR:238. Perez didn’t want to be pressed further:
“Jimmy [Clanin], he told me where the fence-- where the fence
goes, and that's it.”
CR:109; CR:238.
Mr. Clanin was asked: “Do your crews have any training or certification
from the AFA [American Fence Association] that you know of?” He answered,
“I don't know the answer to that.” CR:115.
Injury proximately caused by the breach
It is undisputed that without Serafine’s consent Viking tore out the
original 50-foot fence and installed another one. It is undisputed that before
Viking’s work the Pecan tree was on Serafine’s property, CR:104, and after
Viking’s work the same tree was mostly on Blunts’ property. CR:105. Viking
moved the effective boundary, immediately depriving Serafine of possession.
The summary judgment evidence included two declarations by Serafine
45
detailing her title by limitations by 1988 and certainly by 2003, up to the
original fence that Viking tore out, and running along her driveway marked by
railroad ties lined up with the fence and curb cuts. CR:103 (photo); CR:157-
175 ( Serafine verified petition); CR:120-123 (Serafine declaration).
Photographs below were presented to the court as evidence without objection.
The orig in al f ence was a
boundary fence because
nothing else separated the two
properties. CR:94.
46
Viking’s replacement jutted into Serafine’s yard at the end of her driveway.
CR:95.
47
Serafine’s gate entering her yard (far left) had had for 34 years a matching gate
post, which Viking tore out. CR:98.
Close examination shows the gate’s right hinges attach to identical
fencing that directly meets Serafine’s house. The same fencing then continues
immediately from the other side of Serafine’s house. CR:97. All of this
matched identically the boundary fence that Viking tore out. Serafine’s yard
was enclosed on all four sides.
48
Viking’s workers knocked out a panel from Serafine’s east fence along the
alley, allowing the new fence to intrude more deeply into Serafine’s yard.
CR:106.
They also bolted Serafine’s fence to the new one, without consent.
49
Wide pools of concrete were embedded into Serafine’s soil, CR:102 (SJ
photo), and the new fence is cemented into the soil at a depth of 2 feet. CR:225
(Clanin deposition).
B. The court erred in granting summary judgment favorable to Viking
on Serafine’s nuisance claims.
Serafine’s case against Viking was for interference with property rights.
Viking’s defense is that their customer told Viking to tear out the chain link
fence, and the fence was not worth much.
On Viking’s theory, the right of property in Texas reduces to this: If a
boundary fence already looks old, and someone pays you to rip it out, to leave
the matching gate hanging there, and to put a better fence in a different place,
it is okay to do it without adjoining landowner’s consent.
Mr. Clanin testified:
Q: And you would just assume that it would be okay with
them?
A: The assumption is that the two neighbors have communicated.
That's the assumption.
CR:108 (emphasis added).
Defendants do not admit they made a mistake. They adamantly claim
the right to destroy property and re-locate boundaries if they are hired to do
50
so.
Viking’s pattern and practice—and its claim to a right to continue—is a
public nuisance. Most members of the public would be reasonably annoyed
and disturbed by coming home and finding their fencing and gate post gone,
as was Serafine. This was adequately pled. 6 The Texas Supreme Court has
recently decided Crosstex North Texas Pipeline, L.P. v. Gardiner, No. 15-0049
(Tex. June 24, 2016). Texas law now defines nuisance as a “legal injury–the
interference with the use and enjoyment of property.” Id. at ¶23. The focus
is neither defendant’s conduct nor the resulting damage. Rather, the questions
is whether there has been “an invasion of a plaintiff’s legal rights” Id. at ¶22.
At least one other supreme court has similarly sought to protect private
property rights. 7
The evidence above was sufficient to raise a fact issue on public and
private nuisance. It was sufficient to send to the jury the question of nuisance:
6
Serafine pled:
“A trespass to land is a substantial harm”—not to mention the destruction of
property—and people have the right “to know it is safe from unpermitted
intrusion.” Petition, CR:32-50 at ¶¶95-102.
7
Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997) faced
an equally adamant trespasser. The Wisconsin court reasoned that without serious
consequences to intentional interference with property rights, there is simply no
right of property.
51
whether Viking substantially interfered with plaintiff’s use and enjoyment of
residential property by entering upon it, destroying fixtures, tearing out an
existing boundary fence, and re-arranging the boundary in a different location.
Crosstex, Id. at ¶24.
V. The trial court engaged in prevailing-party fee-shifting unauthorized
by any statute, by fashioning an unwarranted $10,000 sanction.
Viking failed in its offer-of-settlement fee-shifting because it failed to
file the required declaration. After trial it could not collect anyway
because plaintiff had made no recovery. The rule, TRCP 167, allows
collection only up the amount of a judgment in plaintiff’s favor. The
trial court entered sanctions against Serafine to replace Viking's failed fee-
shifting. Viking moved for sanctions—openly admitting it did so to replace
its offer-of-settlement plea. But the court awarded sanctions on grounds
different than what Viking moved—without a hearing, order to show
cause, or any evidence except the exact amount of money Viking was
" for fee-shifting.
seeking
This violates the "American Rule." Wein v. Sherman, No.
03-10-00499-CV (Tex.App.—Austin Aug. 23, 2013).
52
The final judgment of December 3, 2015 ordered that
Defendants (sic) Viking Fence Company, Ltd. recover from
Plaintiff Mary Louise Serafine the amount of $10,000.00, pursuant
to the Court's Order on Defendant Viking Fence Company, Ltd.'s
Motion for Sanctions....
CRSuppIII:94-129,96(emphasis added).
The court sanctioned Serafine under TRCP 13 and CPRC Chapter 10.
CRSuppIII:94-129.
The ground was that ten months earlier Serafine had briefly added
Salvador Chavarria and Jennifer Chavarria—the members of the LLC that is
the general partner of Viking Ltd.—under a veil-piercing theory, after
depositions and discovery. Ibid. The Chavarrias' MSJ on statute of
limitations ground was granted in June, 2015. CRSuppV:128¶7; CR:80-81.
Thus, there was never a merits decision on the claims against them.
The Chavarrias did not move for sanctions at any time. Well before trial
they were no longer parties.
The sanctions order claims to grant Viking's motion for sanctions, but the
supposed offense was against the Chavarrias. Viking's motion did not mention
the Chavarrias or any grounds stated in the order. CR:574-580 (Viking
motion).
Serafine was sanctioned for pleading that the Chavarrias were the alter
53
ego of Viking. But the court sanctioned this supposed offense against the
Chavarrias by awarding the money to Viking. This treats them as one and the
same, as Serafine had pled.
The Court calculated the $10,000 amount from combining fees for the
Chavarrias’ SOL dismissal with fees for Viking’s dismissed claims.
The court specifically sought out this figure at a hearing, from the
attorney representing Viking and the Chavarrias:
THE COURT: And just to clarify, 50 percent related to those
causes of action, which were dismissed by the Court, or those
individuals who were removed from the case through summary
judgment?
WITNESS (Mr. Otto): Correct. I would say a fair estimate of that
would be 50 percent of the $20,000, would be fair.
13.RR:61-62 (hearing, 11/10/2015).
None of the evidence had anything to do with any sanctionable conduct.
Serafine objected at the hearing and was overruled. Even so, it bears repeating
that the sanctions actually entered had nothing to do with either Viking’s
motion or the hearing.
Courts do not have discretion to fashion prevailing-party fee-shifting
through sanctions, particularly by awarding fees to one defendant because of
54
supposed offenses against another, never complained of at the time. The trial
court here decided to fee-shift 50% of $20,000 to cover the cost of all the
claims dismissed in the June, 2015 MSJs plus “discovery,” for Viking Ltd.,
Viking GP, and Salvador and Jennifer Chavarria all together.
It bears repeating that Viking was denied summary judgment as to
negligence, gross negligence, and conversion.
There was no evidence the Chavarrias answered any discovery, and they
did not.
A. The conduct in question was unsanctionable.
It is important to emphasize that (1) no ruling on the merits of Serafine’s
claims against the individuals was ever made; and (2) the sanctions order
misrepresents that Serafine’s claims against the Chavarrias caused "drafting
and arguing of two separate motions for summary judgment" plus “discovery.”
CR:128 (emphasis added). The sanction taxes Serafine for all of this. But the
Chavarrias were not movants in Viking’s MSJ. CR:288-290 (order,
6/25/2016). Likewise the order’s statement that the Chavarrias had to answer
“discovery.” There was simply no evidence they did, and they did not do so.
Below are the trial court’s findings as the basis for sanctions:
1. the statute of limitations had run;
55
2. "[i]n order to recover ...[Serafine] was required to specifically plead and
prove, within the applicable statute of limitations" that two veils needed
to be pierced—from Viking Fence Ltd. down to Viking GP, LLC, and
from there down to GP's sole shareholders, the Chavarrias;
3. the petition makes "vague references to a variety of agency, alter ego,
and corporate veil theories....";
4. Serafine failed to allege "any independent duty of care to Plaintiff;"
5. "[t]he creation of affiliated corporations to limit liability and the hiring
of independent contractors is commonplace and a legally approved
business practice in Texas;" and
6. "Plaintiff failed to allege how the use of a corporate fiction was used as
a means to evade an existing obligation...."
CRSuppIII:127-128.
Findings at Nos. 2, 3, 4, and 6 are at most pleading flaws to which the
Chavarrias could have taken special exceptions or a TRCP 91a motion to
dismiss, but did not. Even so, Texas requires only "‘fair notice' pleading" in
veil-piercing. Metromedia Restaurant Services, Inc. v. Strayhorn, 188 S.W.3d
282, 290 (Tex. App.—Austin 2006).
Yet Serafine pled details. Viking defended a fake insurance document
before the court that nowhere contained the word “Viking.” Viking would not
testify to having any assets. Viking insisted until late in the game that
everyone was the independent contractor of the level above—a four-level
hierarchy. CR:34-35¶¶11-22.
56
Findings Nos. 1, 4, and 5 are debatable legal issues as to which Serafine
disagreed with the court in motions and argument. The order does not even
find Serafine's positions were objectively frivolous or that subjectively
Serafine disbelieved them.
As to Finding No. 1, on the SOL having passed: Serafine urged relation
back doctrine and the discovery rule, both established doctrines.
CRSuppVII:4-56.
As to Finding No. 4 on failure to allege “Duty of care”: This is irrelevant
in veil-piercing.
As to Finding No. 5, that Texas approves of Viking’s “hiring
independent contractors, etc.”: This shows how groundless the trial court’s
sanction was. Not only is “misclassification fraud” widely known. But the
trial court requested Serafine to produce an MSJ on the issue on four days’
notice, because the court wished to decide that issue without bringing it to the
jury. Serafine’s MSJ is at CRSuppVII:57-82. Serafine presented Viking
deposition excerpts and IRS, U.S. Department of Labor, and Texas Workforce
Commission rules plus the lengthy 2011 “Critical Health” opinion from this
Court—authority well supporting Viking’s misclassification. That the MSJ
was denied is not complained of. CR:287(denial of MSJ). But that a sanction
57
would rest on a court’s unrelated, erroneous legal opinion of what Texas
“approves” of, is arbitrary.
B. The purpose of the sanction was improper---to replace Viking's
failed fee-shifting under the offer-of-settlement rule.
The Chavarrias never sought fee-shifting, or sanctions.
The Viking entities pled only the offer-of-settlement rule in TRCP 167
and CPRC Ch.42. CR:422-425 (Viking answer, 9/11/2015). But Viking’s
motion for sanctions openly stated that its purpose was fee-shifting: 8
[G]iven the take-nothing judgment, and no judgment to offset,
Viking Defendants are not pursuing attorney fees under the Offer
of Settlement rule.
CR:578¶19 (Viking motion for sanctions).
The purpose of Viking’s sanction motion is an open attempt to evade the
legislature's protection of plaintiffs in the offer-of-settlement rule, as Serafine
said in her response. CR: 585-663. The rule's purpose is to cap fee-shifting
in defendant’s favor at the amount of a plaintiff's award. That is to preserve
the American rule so that plaintiffs will not be chilled in coming to court.
To allow evasion of the rule after trial would be exactly that: chilling the
8
Viking’s counsel emailed that rationale to the court, but the email was
eexcluded by the Judge’s Bill of Exception. The Judge’s Bill explains, Serafine
“did not offer the [email]...into evidence at trial.” CRSuppV:448-50(Judge’s Bill).
But the email was unrelated to trial and written long after it.
58
plaintiff's coming to court. Serafine's response in the trial court urged that this
is also what the legislature sought to discourage in its broad definition of
"action" in the Citizen's Participation Act. Later Serafine modified her
opposition only to the extent of urging the arguments without invoking the
Act's procedural mechanisms. (The court's order mis-states that she withdrew
it entirely.) Serafine met the court’s deadline for additional briefing.
CR:744-833.
C. Viking's sanctions motion was based on a substantive error of law.
It is the same error embraced by the judge and which Viking argued at
trial. The theory is that Serafine purportedly "knew" the new "fence was
entirely within the Blunt's (sic) deeded property." CR:574¶11 (Viking
sanctions motion). Even assuming the Blunts had proved up any deeded
property—which they did not—this would not undo Serafine's adverse
possession claim.
Adverse possession doctrine is intended to do what Serafine claims: it
allots ownership by use and occupation that is obvious on the ground for a
long time, after which surveys are moot.
In a sanctions motion, the moving party must overcome the presumption
that pleadings are filed in good faith. Nath v. Tex. Children's Hosp., 446
59
S.W.3d 355, 361 (Tex. 2014). Viking’s motion did not overcome that
presumption because its grounds, in substance, were error. The trial court
made the same error and also did not overcome this presumption.
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.
1991)( trial court has no discretion in determining what the law is or applying
the law to the facts).
D. The court acted arbitrarily by surmising sanctionable conduct,
without finding it.
The order states:
Based on all of the foregoing, there can be no other reasonable
conclusion but that Plaintiff's allegations against Salvador
Chavarria and Jennifer Chavarria were made: (1) in bad faith; (2)
with full-knowledge that her claims against the individual LLC
members were groundless; and (3) for the purpose of harassment.
CR:128(emphasis added).
This order concedes surmise. It misleadingly states that on November 10,
2015 a hearing was held on Viking's motion. But at that hearing, no evidence
whatsoever was taken on any matter contained in the order, except the
amount of Viking’s fees. The sanctions order rests on concepts concerning
"alter ego" and "independent contractor." These words do not even occur in
Viking's sanctions motion, CR:574-579, or in the hearing transcript. RR,
60
Vol.13. There was no evidence of “bad faith” or improper conduct or motive
on Serafine’s part.
The November 10th hearing was not noticed for sanctions. 13.RR:48-
55(colloquy, Serafine’s objection). The only notice of hearing was that of
October 22, 2015, CRSuppV:766, when Viking’s only live request was its
offer-of settlement plea. Its sanctions motion was filed two weeks after the
notice.
The standard for TRCP 13 is that it should be used only "in those
egregious situations where the worst of the bar" acts outside "guiding
principles of the law." Tarrant Cnty. v. Chancey, 942 S.W.2d 151, 154-55
(Tex.App.—Fort Worth 1997, no writ)(internal quotations omitted). The
record does not support that here.
VI. The trial court erred in awarding Serafine $0 in fees and sanctions
under the Citizen’s Participation Act, or alternative law.
Review of this issue should be limited to the court’s findings of fact and
conclusions of law. CR:901-904.
Following this Court’s opinion in Serafine v. Blunt, 466 S.W.3d 352
(Tex. App.—Austin 2015, no pet.), Serafine filed a motion seeking damages
and sanctions under CPRC §27.009. CR:291-332. Subsequently, depositions
disclosed that the Blunts’ interference counterclaim based on threats and
61
harassment was groundless. Still, even after depositions, Alexander Blunt
continued to file false affidavits swearing to “personal knowledge” that
Serafine “continually harassed” and “stalked” Lockhart’s employees “to the
point [they] would no longer continue work” and Blunt “had to settle for a sub-
standard solution.”9 CR:386-399(Blunt affidavit filed on 8/28/2015 at CR:391).
Serafine sought sanctions for this false testimony at the hearing on Sept.
25, 2015 on her Chapter 27 award, and then in several filings. CR:719-
739(supplement to motion under Chapter 27); CR870-900(motion to modify
judgment or for new trial); CR905-939 (request for additional findings of fact
and conclusions of law). She also moved that sanctions should be awarded
under TRCP 13. Ibid.
The final judgment made no award to Serafine of either fees or sanctions
9
Yet an email suggests Blunt thought the system worked perfectly as early
as July 16, 2012. CR:386-399 (Blunts’ Exhibit 60).
The Blunts answered an interrogatory asking who received threats from Serafine
and when:
RESPONSE: Objection, this request is vague, compound, ambiguious
(sic), and overbroad. Further, the phrase “you contend are relevant to
this lawsuit" calls for a legal conclusion.
CRSuppEx.: 6.
62
under the TCPA. CRSuppIII:94-129¶¶14-15. In the same papers Serafine
requested the same relief under TRCP 13 which was also denied.
A. The court was required to award Serafine’s fees under Sullivan.
Under CPRC §27.009(a)(1), attorney’s fees that are reasonable must be
awarded, not merely a discretionary amount that is “equitable and just.”
Sullivan v. Abraham, 488 S.W.3d 294,300 (Tex. 2016).
B. The trial court was required to award sanctions.
The Supreme Court has not analyzed the sanctions provision of section
27.009(a)(2). However, it would be anomalous to interpret “shall” as
mandatory when applied to subsection (a)(1), but discretionary when applied
to (a)(2). Section (a)(2) presumes a need to deter. The legislature could have
added “if necessary” or similar terms, but did not do so.
The Court should remand for an award of sanctions sufficient to deter.
The factual predicate is two-fold: (1) as a “mixed claim” where the severed or
residual portion was later dismissed on summary judgment—in this case a no-
evidence summary judgment, CR:511—relief should be awarded for both
parts of the severed “mixed claim”; and (2) where false testimony undergirded
the severed or residual portion, relief should be awarded for both parts of the
severed “mixed claim.”
63
1. Fees and sanctions should have been awarded because the severed
portion of the “mixed claim” had no evidence.
This court in Neyland v. Thompson, No. 03-13-00643-CV (Tex.
App.—Austin Apr. 7, 2015) and in the instant case was faced with a “mixed
claim” SLAPP. A mixed claim involves “combining allegations of protected
and non-protected activity under the label of one.” Salma v. Capon, 161
Cal.App.4th 1275, 1287 (2008).
The Texas Supreme Court has not addressed the issue of whether—as
California jurisprudence has put it—“the purposes of the [anti-]SLAPP statute”
are frustrated when such pleading is used. Salma v. Capon, 161 Cal.App.4th
1275, 1287 (2008).
Plaintiff moved by oral motion in the trial court that additional fees and
sanctions should be awarded —thus re-combining the two parts of the
interference counterclaim—because she was successful on a no-evidence MSJ
in defeating the residual portion. 13.RR:83-84. The trial court rejected this.
Serafine moved the same in her motion to modify or for new trial, CR870-900,
which was overruled by operation of law.
This Court should hold that when the severed portion of a mixed claim
goes forward, and it is ultimately dismissed on summary judgment on no-
evidence grounds, then that portion should be re-combined with the dismissed,
64
First Amendment violations, for purposes of Chapter 27 relief. If
“camouflage” claims can be added to SLAPPs (a misnomer), the purpose of the
statute is defeated.
2. Sanctions were warranted on the SLAPP claims on traditional
grounds—false testimony and a subsequent frivolous counterclaim.
Blunt’s repeated filing of sworn affidavits with the same false testimony
should have been sanctioned. See Metzger v. Sebek, 892 S.W.2d 20, 52-53
(Tex. App.—Houston 1994)(lying in affidavit claiming to have personal
knowledge, when there is none, is sanctionable under TCRP 13 exists, but
million dollar sanction for one affidavit is too much).
At the hearing on Serafine’s motion for Chapter 27 relief, the court
terminated plaintiff’s counsel Mr. Bass’ examination of Alexander Blunt.
7.RR:12-19. Mr. Bass intended to show that the residual part of the tortious
interference claim was groundless, because depositions failed to turn up a
single instance of threat that caused Lockhart to stop work. 7.RR:12-19.
The court would not let Mr. Bass proceed because (1) Mr. Blunt was not
a corporation; and (2) the “likelihood” of similar future filings by the Blunts
could not be shown, thus sanctions to deter would not be necessary. 7.RR:13-
14. Mr. Bass summarized after lengthy colloquy:
65
MR. BASS: I understand. And I guess for the record, our position
is evidence that this case was brought for the sole purpose of
shutting down the plaintiff's lawsuit, and there was really no basis
in fact for those counterclaims would be that's --
THE COURT: Sanctionable. That's your position....
7.RR:18
Nothing in Chapter 27 limits the (a)(2) sanctions provision to
corporations. To the extent the court conceived Chapter 27 to be limited to
corporate attempts to quell public speech, the Supreme Court has rejected this
in Lippincott v. Whisenhunt, 462 S.W.3d 507,508 (Tex. 2015)(reversing Court
of Appeals because TCPA is not limited in scope to only communications in
“public form”).
The court’s findings and conclusions are non-specific, except for the
statement that Serafine “retracted” any claim she might have had, but sued
anyway. CR:903.
Even if this were true, which it is not, it is irrelevant to whether the Blunts’
counterclaims are groundless. The court was required to apply Chapter 27 as
it is written. Even assuming the term “justice and equity” applied to the fee
determination —which it does not—“justice and equity” never allows judges
to take their own free-floating impressions and carry them to entirely different
claims, then somehow balance them against each other. This is a recipe for an
66
unpredictable, result-oriented judiciary.
The next day after this Court’s mandate issued on Sept. 10, 2015, the
Blunts filed a new counterclaim containing only three sentences, no facts, and
the allegation that Serafine had trespassed onto their property on “many
occasions.” CR:419-421. The trial court apparently did not take account of
this bogus claim, although it was brought to the court’s attention. CR:498-503.
The court dismissed the claim on a no-evidence MSJ as to which the Blunts
did not even bother to file a response. The court minimized the seriousness
of this frivolous filing, however, by concluding it was a only a “mirror image”
claim that plaintiff should have expected and abided. RRSupp:76.
Because plaintiff was not permitted to develop the evidence of Blunt’s
false testimony and the impact of the subsequent frivolous trespass filing, the
Court should reverse and remand for further proceedings.
C. In addition, the Court should render judgment in the amount of
$53,525 in attorney’s fees to Serafine.
At a minimum, Serafine should be awarded $38,325 for Mr. Bass’
attorney’s fees, 7.RR:67, and $15,200 for Mr. Hargrove’s attorney’s fees
($19,000 reduced by 20%). 7.RR:42. Serafine also requested fees for her own
work, which should be remanded. Beckstrom v. Gilmore, 886 S.W.2d 845, 847
(Tex. App.—Eastland 1994)(granting statutory award to prevailing attorney,
67
analogizing self-represented attorney to in-house counsel representing business
entity).
VIIa. Errors in the trial court require a new trial.
First, “case resolution [cannot be condoned] where one side has been
denied all opportunity to offer rebuttal.” Beard Family Partnership v.
Commercial Indem. Ins. Co., 116 S.W.3d 839, 851 (Tex. App.—Austin
2003)(Puryear, J. dissenting in part). Here, the trial court denied all rebuttal
and held that plaintiff should have divined defendants’ defense, then put into
her case in chief her responses to whatever their defense was going to be. See
infra.
Second, eliminating virtually all of plaintiff’s exhibits as an evidentiary
sanction four days before trial was too harsh.
Third, Alexander Blunt testified over objection that after a “mediation
attempt” he offered to just give Serafine the land she claimed, but she
continued to litigate anyway. Aside from violating principles of evidence,
there was never a mediation or settlement offer.
Finally, loss of lateral support should have gone to the jury because it
was fully pled and there was evidence to support it. The court erred as a
matter of law in believing defense counsel’s assertions that no such cause of
68
action exists in Texas. The judge denied the lateral support instruction and
erroneously held that loss of lateral support “fall[s] under negligence.”
11.RR:80. This deprived plaintiff of a major claim since the start of the case.
A. Plaintiff was denied rebuttal.
Defendants rested. This colloquy followed:
MR. BASS: We have some rebuttal we'd like to offer.
THE COURT: Okay. And what exactly is the rebuttal?
MR. BASS: I'm sorry?
THE COURT: Are you planning to call another witness?
MR. BASS: Yes, Ms. Serafine in rebuttal.
THE COURT: Okay. Any objection?
MR. OTTO: [] I object -- I thought we took care of that by
allowing additional questioning and the second taking of the stand
by Ms. Serafine earlier in the trial. So it seems duplicitous,
cumulative and repetitive.
MR. PETERS: That's what I thought, Your Honor. That's...why I
didn't save any for rebuttal [].
THE COURT: That was my understanding as well. For what
purpose are you seeking --
MR. BASS: To rebut some of the matters that were brought up by
witnesses of the defendants that were not addressed in the
plaintiff's case in chief.
12.RR:32-33.
To the contrary, there had been no prior ruling that Serafine, having been
called to the stand to answer a couple of left-over questions in her case in
69
chief, was thereby providing rebuttal to the defense case. The defense case had
not even been put on yet. Earlier, Viking’s counsel had advised the judge that
recalling the plaintiff in her case in chief was the same as rebuttal. Plaintiff’s
counsel Mr. Bass countered that it would not be rebuttal. 11.RR:55-57. The
court adopted Viking’s view. 12.RR:32-33.
As an additional ground, the court reasoned that because Nils
Juulhansen’s testimony about dilapidation at Serafine’s house was limited to
2002, a full decade before Lockhart’s 2012 construction, Serafine’s own
testimony about what she did later was beyond the scope. The court
explained this in the Judge’s Bill of Exception: “Serafine requested to offer
rebuttal testimony that she made repairs to and/or remodeled portions of her
home in 2004 and 2005,
in attempt to rebut the testimony of Nils Hanson (sic) that her
home was dilapidated. The Court exercised its discretion to
exclude this evidence because it was beyond the scope of proper
rebuttal testimony.”
CRSuppV:448 (emphasis added).
The court also reasoned that if disclosure had been made of a witness’
name and phone number—again, that of Nils Juulhansen—then plaintiff should
have anticipated what Nils’ testimony would be and included it in her case in
chief. The court asked plaintiff’s counsel Mr. Bass, “Are you suggesting that
70
they weren't disclosed to you during the discovery process so you were not
aware that it was going to be presented at trial?” 12.RR:33. Colloquy
concluded:
MR. BASS: But as I understand, the Court will not permit us to discuss
and show photographs of remodeling that was done after 2002.
THE COURT: No, because that would go outside the scope of
simply rebutting what was presented during their case, which was
not anticipated previously.
12.RR:40 (emphasis added).
10
Rebuttal is “contradiction of an adverse party’s evidence.” If the
adverse evidence has not been put on yet, there can be no meaningful rebuttal.
This is a ruling that requires plaintiff to be clairvoyant, assumes that a
deposition would be effective in uncovering what the witness will say at trial
when the adverse lawyer is asking the questions, and thus denies plaintiff the
opportunity to rebut false evidence and impressions in defendants’ case in
chief.
Harm analysis
The Blunts had put on Nils Juulhandsen, who testified to all manner of
problems in Serafine’s house when he lived there ten years before Lockhart’s
10
Black’s Law Dictionary, 10th ed., Garner, B., ed. (2004).
71
construction. In Serafine’s house, he testified, you couldn’t even take a
shower and wash the dishes at the same time. 11.RR:156. In fact, he testified,
“that's why we moved...next door.” 11.RR:156. Serafine’s house had the
“smell of gas.” There were cracks and “slopes” inside and out. Ibid.
This evidence was central, probably resulting in an improper verdict,
because it portrayed that Serafine’s house was always falling apart, she perhaps
caused it herself, and this was a bogus lawsuit. Serafine could have testified
on rebuttal—but it would be largely irrelevant to her case in chief—that
Serafine paid a property manager who would have taken care of Nils’
complaints. She would have showed photos of damage that occurred only since
the 2012 construction and “before and after” photos—but the judge excluded
them (see below).
When Viking’s Jimmy Clanin testified, Mr. Otto showed him a picture
of Serafine’s run-down fence along the alley and asked Clanin, “Have you ever
heard anybody refer to that kind of fence like Ms. Serafine has, right there on
the alley as a historical fence?” 11.RR:40. Mr. Clanin said, “No, sir.” Ibid.
This evidence gave the false impression that Serafine claimed this was a
“historical” fence, that she did not replace it when it was clearly needed, and
so this was probably a bogus lawsuit. Serafine would have corrected this
72
misinformation. She did not claim the old alley fence was “historical.” In
attempting to remove it, Serafine discovered Viking had bolted it as a support
for the Blunts’ fence, by which time litigation was contentious. None of this
would have gone into Serafine’s case in chief. Failure to get rebuttal went
against Serafine on damages and negligence.
Clanin also testified to the effect that Serafine could have called Viking
to get the concrete off her property. 11.RR:52-53. Serafine would have
rebutted that Blunts’ lawyer would not disclose who built the fence; Viking
knew of the problem since Day One and long before litigation never offered
assistance. Serafine did not and would not have put this in her case in chief.
Failure to get rebuttal went to the merits of Serafine’s claim generally and to
negligence and damages. What damages, a juror might question, can there be
over a run-down fence?
The Blunts were allowed over objection, to testify that there was a
“mediation attempt” and they made a settlement offer to just “give” Serafine
the land, but she refused it. 11.RR:145. Serafine would have rebutted that
there was no offer and no mediation. Such “evidence” went to the heart of why
Serafine was forced to bring the case. It probably resulted in the improper
verdict that Serafine take nothing.
73
The Blunts were allowed testify over objection that their attorney wrote
letters to Serafine asking her to produce a survey and she refused. 11.RR:114.
Serafine would have rebutted with the phone calls and verbal communication
at the time, but would not have put such evidence in her case in chief. The
harm is that both the jury and judge believed erroneously that this case was
decided by surveys and that Serafine herself conceded that.
Ashley Blunt testified that, before Viking tore out the fence, Serafine
knew about it and approved of it. In fact, she and Ms. Serafine walked around
the neighborhood selecting fences, Mrs. Blunt testified. 11.RR:167-168.
Serafine would have rebutted this, as it was false. There would be no reason
in Serafine case in chief to testify that she and Mrs. Blunt did not walk around
the neighborhood. Even aggressive cross would not un-do it.
Sam Archer, a real estate agent and Mr. Blunt’s friend, testified for the
Blunts that Serafine’s house is more valuable as a result of defendants’
construction. 11.RR:286. Serafine, as the owner of her house, would have
rebutted Archer’s opinions and and testified to its value. This harm went to
damages and the merits of the case.
That these were important issues is shown by all defendants’ closing
arguments. The Blunts’ first point was:
74
I again submit to you my clients made one mistake and one mistake
only. That was purchasing and trying to maintain and improve
property next to this plaintiff.
12.RR:97.
Lockhart’s counsel emphasized Serafine did not take care of her
property. 12.RR:138.
B. In a “death penalty” sanction the trial court excluded plaintiff’s trial
exhibits on controlling issues.
Five days before trial, on October 8, 2015, Viking filed against plaintiff
a motion for evidentiary sanction, or motion to compel, after hours.
CRSuppIII:80-91. Although elsewhere plaintiff’s counsel Mr. Bass could not
get rulings on his filed and emailed objections to trial exhibits because, the
court explained, “here in Travis County, we do have this wonderful electronic
filing system, but sometimes it takes two days for it to actually make it into the
system,” 9.RR:8, in the case of Viking’s after-hours sanctions motion the court
filed an order by 11:53 a.m. the next morning. CR:558-59. It had two
rulings.
First, the court limited plaintiff’s exhibits to 100 in number
without limiting defendants’. CR:558‐59. The Blunts had designated
88 exhibits. RRSupp:16 (Mr. Peters). Viking had designated “67ʺ
75
exhibits each containing 20, 40, or over 200 documents, for a total of
over 500 documents. CR:512‐518.
Only plaintiff was limited.
Second, the court excluded all of plaintiff’s exhibits from being
introduced at trial, except those that could be personally presented to
the judge in court, listed in the columnar format ordered, in two hours.
CR:558‐59. The order read:
“The Court FINDS that Plaintiffs exhibit list is insufficient
and does not comply with the Travis County Standing Order
requiring that the exhibit list identify documents reasonably
anticipated to be offered in evidence.
Plaintiff is therefore ORDERED to identify no more than
100 exhibits to be introduced at trial in the following format
on or before 2:00 p.m. on October 9, 2015. Any exhibit that
is not identified in the format below will not be introduced
at trial.”
CR:558‐59.
The rule in question requires a list. It does not require a list in any
particular form. However the court ordered a chart in the format attached to
the order. CR:559.
In relevant part Rule 3.2 of the Travis County “Amended Standing
76
Pretrial Scheduling Order...” provides that 12 days before trial,
Counsel shall exchange a list of exhibits that each reasonably
anticipates will be offered in evidence. Exhibits not listed
will not be admitted unless good cause is shown. (emphasis
added).
Serafine engaged in no flagrant violation or callous disregard of the rule.
Plaintiff and Viking both complied with the 12‐day deadline. Plaintiff’s
exhibit list that the court found non‐compliant is shown at
CRSuppIV:84‐89. It listed categories of documents and photographs
(deed documents, “old chain link fence” etc.). Viking’s exhibit list is
shown at CR:512‐518. It too listed categories of exhibits—each category
containing 20, 40, or some 200 individual documents.
There was no substantial difference between the two lists. The
only difference is that Viking used large Bates number ranges. No rule
anywhere requires Bates numbers. But as Serafine explained to the
court when the parties appeared later that day, plaintiff’s Bates
numbers would be confusing for designation because she had three sets
of Bates numbers—separately for the 12‐1270 case (served on Lockhart
77
and Blunts), the 13‐4023 case (served on Viking), and for the
consolidated case (served on all defendants). RRSupp:6. There was no
way to match up the Bates numbers, and in any case a particular
document would confusingly bear at least two if not three different
numbers.
Finally, defendants were not prejudiced in any way. All parties
had received Serafine’s documents and had been familiar with them for
years.
When the court issued its sanctions order at 11:53 a.m., Ms.
Serafine and Mr. Bass were meeting at his office in Georgetown.
Plaintiff appeared in court at 2:00 p.m. and served and filed the
handwritten list on the following page. CR:555‐557.
This filing hastily listed as many exhibits as possible from
depositions and expert reports, thereby clearly identifying them for
defendants. In fact, however, defendants claimed they had not been
provided with those particular exhibits, and thus many listed were
excluded at trial anyway. 9.RR:67; 9.RR:126‐128.
78
79
CR: 555‐57.
80
Before the order issued there was (1) no notice, (2) no order to
show cause; (3) no hearing; and (4) no lesser sanction. TransAmerican
Nat’l Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)(“courts must
consider the availability of less stringent sanctions and whether [they]
would fully promote compliance”). See also Brookshire Bros., Ltd. v.
Aldridge, 438 S.W.3d 9, 24 (Tex. 2014)(sanctions so severe as to inhibit
the presentation of the merits must be reserved for “flagrant bad faith”
or “counsel’s callous disregard…”)(citation omitted); In re Patton, 47
S.W.3d 825, 828 (Tex. App.—Fort Worth 2001, orig. proceeding) (finding
abuse of discretion to exclude trial exhibits without lesser sanction).
Harm analysis
Controlling issues in this case included how and when Serafine’s
tenants used Lots 5 and 6; whether Serafine’s house was damaged by
the 2012 construction, as she’d claimed; whether scientifically‐collected
soil samples had been collected by her expert; whether, in fact, the back
building was intended to be used as an office as Serafine claimed;
whether, in fact, Serafine had done a re‐model in 2002 to 2004 and how
81
it looked inside.
Elimination of plaintiff’s exhibits prevented her from showing the
jury the evidence in plaintiff’s Exhibit 106 at 17.RR and 18.RR, which
was excluded, but which at trial Mr. Bass offered for a later bill of
exception and the court approved but later refused. 10.RR:29. (Mr.
Bass used the term “offer of proof,” but it is clear he intended a formal
bill of exception for the excluded exhibits, as he had done previously.)
The documents excluded by the order on Oct. 9, 2015 included:
• telephone book pages from the Austin History Center showing the
tenants at 4011 listed each year;
• photographs Serafine took of large cracks, dry wall breakages,
and a threshhold that had shifted toward the next room—all
damage that developed throughout Serafine’s house only since the
2012 construction;
• photographs Serafine took of the soil sample collection to provide
the jury with an understanding of why samples were collected
down to 17 feet;
82
• architectural sketches completed for the back building that
Serafine claimed she was turning into an office;
• the appraisal and photographs from 1977 showing the backyard
was fenced on all four sides;
• estimates obtained for repairing the damage;
• fee bills for attorneys and experts;
• photographs of typical, vintage chain‐link throughout Hyde Park
that was similar to what Serafine lost;
• photographs of the interior re‐model/restoration Serafine did in
2002‐2004;
• photographs of the trenching Lockhart did along the side of
Serafine’s driveway (which defendants denied doing);
Not putting this before the jury prevented Serafine from putting
on her case. ʺAn error in the exclusion of evidence requires reversal if
it is both controlling on a material issue and not cumulative.ʺ Mentis v.
Barnard, 870 S.W.2d 14, 16 (Tex.1994).
Serafine took every step to present this evidence on appeal.
83
Serafine’s formal bill of exception contained this evidence, which the
trial court erroneously refused. Serafine filed a motion in this Court to
include it in the appellate record.
C. Admitting a purported mediation and settlement offer was
harmful error.
Defendant Blunt was allowed to testify to mediation results and
a purported settlement offer. Contrary to Tex. R. Evid. 408, Alexander
Blunt testified as follows over plaintiff’s objection:
(By Mr. Peters, Bluntsʹ counsel:)
Q: At some point in time, did you offer just to give the
property to Ms. Serafine?
MR. BASS: And again, I object to the reasons previously
stated, Your Honor.
THE COURT: Okay. Overruled.
Q. (BY MR. PETERS) You may answer the question.
A. Yes, after mediation attempt ‐‐
Q. No, no.
A. Yes, I offered to give her the land up to the fence.
Q. Okay. And donʹt talk about ‐‐ just say why you offered to
give it to her.
A. I wanted this thing to stop and to go away.
Q. Thank you, Mr. Blunt.
11.RR:145.
Admission of this evidence contrary to Tex. R. Evid. 408 put before the jur a
84
one-sided, prejudicial view of evidence they should never have heard: who said
what in trying to settle. Again, Serafine had no opportunity to rebut. In
addition there was neither a mediation nor settlement offer. Any settlement
offers by Serafine were not put before the jury.
D. The court erred in refusing a lateral support instruction.
The trial court concluded at the charge conference that “the Court's charge
is not going to include a submission for loss of lateral support. That will have
to fall under negligence....” 11.RR:80. This was not because there was no
evidence of it. Rather, it was because Blunts’ counsel advised, “There’s no
such cause of action as a lateral support” and it was essentially negligence.
11.RR:79-80. Lockhart’s counsel agreed there was no such cause. 11.RR:77.
Plaintiff’s counsel disagreed. 11.RR:78. The court accepted defendants’
advice.
This Court’s opinion in Simon continues to be the law:
By the weight of authority it is a well-settled rule of the common
law that an owner of land has an absolute right to the lateral support
of adjoining land. In other words, he has the right to have his land
remain as it was in a state of nature, and neither the adjoining
landowner, nor any one else, can rightfully remove from the
boundaries of the land the supports which hold it in its natural
position. Therefore, if the adjoining proprietor constructs a ditch
or other excavation in such a manner as causes the soil of the
complainant to cave in, slough off, or wash away, such adjoining
proprietor is liable for damages, and, in a proper case, may be
85
restrained by injunction. The right of lateral support of the soil is
absolute, and does not depend upon the question of due care or
negligence.
Simon v. Nance, 100 S.W. 1038, 1040 (Tex. Civ. App.—Austin 1907, no
writ)(emphasis added).
Serafine’s engineering expert, David Price, had testified:
[B]ecause if you dig a really deep ditch and you don't support it,
basically the ditch over time, especially in those type of soils, will
essentially cave in. Think slow motion. And then that causes what's
called a lateral unsupported situation, []
10.RR:226-227.
Blunts’ Exhibit 56, supra, is a photograph of a boarded up trench. Mr. Blunt
was asked about the scene and the boards. He testified, “We had trenched along
that property line a few years earlier.” This was “air spading” along plaintiff’s
driveway. 11.RR:121-122.
Plaintiff’s Exhibit 2D is a photo of the trenching just over the property
line. 17.RR:7, admitted at 9.RR:130.
Plaintiff’s live petition pled:
Cause of Action Against Mr. and Mrs. Blunt
Interference with Lateral Support
Plaintiff has and had an absolute right to lateral support of her land.
Defendant Blunts interfered with Plaintiff's lateral support by
digging a trench, approximately I4 feet long, only a few inches
away from her land, by digging a deep sump pit only a few feet
from her land....
86
CR:23.
The elements of negligence include duty and breach of duty, which under
Simon are explicitly not elements of interference with lateral support. The court
erred and Serafine should have been able to take the question to the jury.
VIIb. The trial court prevented appeal within the meaning of TRAP
44.1(a)(2).
This Court can only guess at what the evidence would have been if the
trial court had not excluded or refused to hear evidence on (1) the boundary; (2)
the egregiousness of Alexander Blunt’s fabrication of the
“threats”counterclaim; and (3) plaintiff’s rebuttal at trial.
Serafine was precluded from appealing that 10 hours was too short to try
this consolidated case and two months too short a time to prepare it after a two-
year stay. The Judge’s Bill recites Serafine’s objection, but omits the
evidence from Serafine’s formal bill to appeal the harm. CRSuppV:449.
These errors meet the harm standard of TRAP 44.1(a)(2) and Ford
Motor Company v. Castillo, 279 S.W.3d 656 (Tex. 2009)(when...evidence does
not appear in record, it is impossible to determine harm and party is prevented
from properly presenting case on appeal).
87
PRAYER
The Court should reverse and render judgment: (1) that Serafine
conclusively established Serafine’s adverse possession and limitations title to
the disputed area; (2) that Serafine recover $53,525.00 in attorney’s fees under
TCRP Chapter 27; (3) that the boundary be declared as described by Grant’s
Occupied Line Survey and metes and bounds; and (4) that the $10,000 sanctions
award to Viking be vacated. The Court should also reverse and remand for a
new trial on (1) all of Serafine’s claims against Viking and Lockhart; and (2)
an award of sanctions “sufficient to deter” as provided by Chapter 27, and for
fees and sanctions for the Blunts’ “threats” mixed counterclaim.
In the alternative, the Court should remand for a new trial on all claims.
The Court should vacate the order expunging the lis pendens notice.
Respectfully submitted,
By: S
Mary Louise Serafine
State Bar No. 24048301
P O. Box 4342, Austin, Texas 78765
Telephone: (512) 220-5452
Email: mlserafine@gmail.com
Appellant and Attorney for Appellant
88
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)
1. This brief complies with the type-volume limitation of Tex. R. App. P.
9.4(e)(i)(2)(B) because it was produced using Word Perfect software and
contains 14,986 words, as determined by the software's word-count
function, excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(e)(i)(1).
2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface
using Word Perfect software in Times New Roman 14 point font in the
main text and no smaller than Times New Roman 12 point font in
footnotes.
By: S
MARY LOUISE SERAFINE
State Bar No. 24048301
CERTIFICATE OF SERVICE
By my signature below, I certify that a true and correct copy of the foregoing
document has been delivered via e-service through the Court's electronic filing
system on the counsel below, on this the 26th day of September, 2016.
The Raydon Firm, LLC
Two Riverway, Suite 845, Houston, TX 77056
Ronald Max Raydon, Esq. (ron@raydonlaw.com)
Attorney For Scott Lockhart and Austin Drainage & Foundation, LLC
Thompson, Coe, Cousins & Irons, L.L.P.
701 Brazos, # 1500, Austin, TX 78701
Sara B. Churchin, Esq., schurchin@thompsoncoe.com;
Wade C. Crosnoe, Esq., wcrosnoe@thompsoncoe;
Jeff D. Otto, Esq., jotto@thompsoncoe.com;
Melissa J Ackie, Esq., mackie@thompsoncoe com.
Attorneys for Viking Fence Company, Ltd. and Viking GP, LLC.
Martens, Todd, Leonard, Taylor & Ahlrich
301 Congress Ave., # 1950, Austin, Texas 78701
Amanda Taylor, Esq., ataylor@textaxlaw.com
Attorneys for Alexander and Ashley Blunt
By: S
MARY LOUISE SERAFINE
State Bar No. 24048301
90
APPELLANT’S APPENDIX
Trial Court Orders
Final Judgment, including charge, verdict,
order on boundary, monetary sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 1
Order setting boundary, expungement . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 2
Findings of fact & conclusions of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 3
Order granting Viking MSJs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 4
Order consolidating cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 5
Directed verdict on Lockhart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 6
Order excluding plaintiff’s expert Hilts . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 7
Evidentiary sanction excluding plaintiff’s exhibits . . . . . . . . . . . . . . . . . Tab 8
Judge’s bill of Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 9
Pleadings
Petition in 12-1270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 10
Petition in 13-4023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 11
First supplement to petitions, both cases . . . . . . . . . . . . . . . . . . . . . . . . . Tab 12
Second supplement to petitions, both cases . . . . . . . . . . . . . . . . . . . . . . . Tab 13
Blunts’ counterclaims for interference and fraudulent lien . . . . . . . . . . Tab 14
Blunts’ counterclaim for trespass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 15
91
Motion
Plaintiff’s supplement to motion for Chapter 27 relief . . . . . . . . . . . . . . Tab 16
Statutes and Rules
Civ. Prac. & Rem. Code sec. 27.009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 17
Civ. Prac. & Rem. Code sec. 16.034 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 18
Prop Code sec. 12.0071 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 19
Tex. R. Civ. P. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 20
Civ. Prac. & Rem. Code Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 21
Tex. R. Civ. P. 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 22
Tex. R. civ. P. 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 23
Civ. Prac. & Rem. Code secs. 16.021 to 16.030 . . . . . . . . . . . . . . . . . . . Tab 24
92
Fiicd in The District Court
of Travis County, Texas
TAB 1
DEC -3 2015
CAUSE NO. D-1-GN-12-001270 At SS9 J?M.
Velva L. Price, District tlirk
MARY LOUISE SERAFINE § IN THE DISTRICT COURT
Plaintiff, §
§
v. §
§ OF TRAVIS COUNTY, TEXAS
ALEXANDER BLUNT, ASHLEY BLUNT, §
SCOTT LOCKHART dba AUSTIN §
DRAINAGE AND FOUNDATIOl\, LLC, §
VIKING FENCE COMPANY, LTD., and §
VIKING GP, LLC, § 200th JUDICIAL DISTRICT
Defendants. §
FINAL JUDGMENT
On October 13, 2015, this case was called to trial. Plaintiff Mary Louise Serafine, an
attorney, appeared Pro Se and through her attorney Ray Bass. Defendants Alexander Blunt and
Ashley Blunt appeared through in person and their attorney, Doran Peters, and announced ready
for trial. Scott Lockhart, Austin Drainage and Foundation, LLC d/b/a Austin Drainage and
Landscape Development appeared in person and through attorney, Ronald Raydon, and
announced ready for trial. Viking Fence Company, Ltd. and Viking GP appeared in person and
through their attorneys, Jeff D. Ot':o and Melissa Ackie, and announced ready for trial. The
record of testimony was duly reported by Della Rothermel, the court reporter for the 250th
Judicial District Court.
On October 13, 2015, the Court impaneled and swore the jury, which heard the evidence
and arguments of counsel. After the close of the evidence, the Court submitted definitions,
instructions, and questions to the jury as set forth in The Court's Charge. In response, the jury,
on October 16, 20 15, made findings that the Court received, filed, and entered of record. The
Court's Charge submitted to the jury, and the jury's findings, are attached as Exhibit "A" and
incorporated by reference.
Final Judgment 11111111111111111111111111111111111111111111111111111111
Pagelof3 ~~
004333407 '~
94
During the trial, the parties agreed to submit the contested boundary line determination
and the issue of attorney fees to the Court by post-verdict submission and hearing. The Court,
through its inherent and exclusive power to settle land titles and disputes, and in response to
Plaintiffs trespass to try title allegations filed in the above captioned and styled cause, signed an
Order Declaring Boundary on November 13, 2015. The Ordc:r finds that Holt Carson's Survey,
sealed on January 18, 2012 and attached hereto as Exhibit "B," correctly and finally establishes
the boundary line between lot 5 of Block 33 of Hyde Park Addition No. 1, also known as 4011
Avenue D, Austin, Texas 78751, and Lot 4 of Block 33 of Hyde Park Addition No. 1, also
known as 4013 Avenue D, Austin, Texas 78751.
Prior to trial, on Septembe:r 25, 2015, the Court considered Plaintiffs "Motion for
Damages and Sanctions Under Chapter 27, Civil Practice & Remedies Code" against Defendants
Alexander Blunt and Ashley Blunt. As justice and equity do not require that costs, fees, or
expenses be awarded and no sanctions are needed to deter Defendants Alexander Blunt and
Ashley Blunt from bringing similar actions, IT IS ORDERED, ADJUDGED, AND DECREED
that Plaintiffs requests for attorney's fees and sanctions against Defendants Alexander Blunt and
Ashley Blunt are DENIED.
Based on the jury's verdict, and further supplemented by the Court's additional orders,
this Court renders judgment as follows:
IT IS ORDERED, ADJUDGED and DECREED that Plaintiff take nothing on all claims
against Alexander Blunt, Ashley B1.unt, Scott Lockhart, Austin Drainage and Foundation, LLC
d/b/a Austin Drainage and Landsc2.pe Development, Viking Fence Company, Ltd. and Viking
GP, LLC.
Page 2 of3
Final Judgment
95
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Defendants Viking
Fence Company, Ltd. recover from Plaintiff Mary Louise: Serafine the amount of $10,000.00,
pursuant to the Court's Order on Defendant Viking Fence Company, Ltd.'s Motion for
Sanctions, attached hereto as Exhibi": "C."
IT IS FURTHER ORDERED, ADJUDGED, and DECREED each party shall be
responsible for their respective attorney's fees, expenses, and costs incurred as a result of legal
representation in this case.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that all writs and processes
for the enforcement and collection of this Final Judgment may issue as necessary.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that all relief requested by
any party not specifically addressed in this Final Judgment is DENIED.
This Judgment is intended to finally dispose of all claims, causes of action, and all
parties, and is therefore, final.
rd
SIGNED this Jr day of December 2015.
Page 3 of3
Final Judgment
96
EXHIBIT A
97
o: BK15299 PG88
ORIGINAL
CAUSE NO. D-1-GN-12-001270
MARY LOUISE SERAFINE § IN THE DISTRICT COURT
Plaintiff §
§
~ §
§
ALEXANDER BLUNT, ASHLEY BLUNT, §
SCOTT LOCKHART dba AUSTIN §
DRAINAGE AND FOUNDATION, LLC § 200th JUDICIAL DISTRICT
dba AUSTIN DRAINAGE §
AND LANDSCAPE DEVELOPME\J"T, §
VIKING FENCE COMPANY, LTD .. AND §
VIKING GP, LLC §
§
Defendants § TRAVIS COUNTY, TEXAS
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instmctions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Ir,temet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason.
Any notes you have taken an! for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes with the Court Operations Officer when you are not
deliberating. The Court Operations Officer will give your notes to me promptly after collecting
them from you. I will make sure they are kept in a safe, secure location and not disclosed to
anyone. When you are released from jury duty, the Court Operations Officer will promptly
destroy your notes so that nobody can read what you wrote.
Here are the instructions for answering the questions:
FilEd in The District Court Filed in The District Court
of Travis County, Texas of Travis County, Texas
OCT 1 6 2015 fA OCT 1 6 2015 I
Court's Charge to the Jury At j. ·5'f. f M.
Velva L. Price, District Clerk
At 3: oS eM.
Velva l. Price, District C!erk
98
oc; BK15299 PG89
1. Do not let bias, pn~judice, or sympathy play any part in your decision.
2. Base your answer:; only on the evidence admitted in court and on the law that
is in these instructions and questions. Do not consider or discuss any evidence
that was not admitted in the courtroom.
3. You are to make up your own minds about th(~ facts. You are the sole judges
of the credibility of the witnesses and the weight to give their testimony. But
on matters of law, you must follow all ofmy instructions.
4. If my instruction:; use a word in a way that is different from its ordinary
meaning, use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any
question or answer is not important.
6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes"
answer must be based on a preponderance of the evidence unless you are told
otherwise. Whenever a question requires an answer other than "yes" or "no,"
your answer must be based on a preponderance of the evidence unless you are
told otherwise.
The term "preponderance of the evidence" means the greater weight of
credible evidence presented in this case. If you do not find that a
preponderance of the evidence supports a "yes" answer, then answer "no." A
preponderance of the evidence is not measured by the number of witnesses or
by the number of documents admitted in evide:nce. For a fact to be proved by
a preponderance of the evidence, you must find that the tact is more likely
true than not true.
7. Do not decide who you think should win before you answer the questions and
then just answer the questions to match your decision. Answer each question
carefully without considering who will win. Do not discuss or consider the
effect your answers will have.
8. Do not answer qu~stions by drawing straws or by any method of chance.
9. Some questions might ask you for a dollar amount. Do not agree in advance
to decide on a dollar amount by adding up each juror's amount and then
figuring the average.
10. Do not trade your answers. For example, do not say, "I will answer this
question your wa:r if you answer another question my way."
11. Unless otherwise instructed, the answers to the questions must be based on the
decision of at lea:;t ten of the jurors. The same ten jurors must agree on every
Court's Charge to the Jury 2
99
DC BK15299 PGSO
answer. Do not agree to be bound by a vote of anything less than ten jurors,
even if it would be a majority.
12. A fact may be established by direct evidence or by circumstantial evidence or
both. A fact is established by direct evidence when proved by documentary
evidence or by witnesses who saw the act done or heard the words spoken. A
fact is established by circumstantial evidence when it may be fairly and
reasonably inferred from other facts proved.
13. You are the sole jt dges of the credibility or believability of each witness and
the weight to be given to his or her testimony. In weighing the testimony of a
witness you should consider his or her relationship to the Plaintiff or to the
Defendant; his or her interest, if any, in the outcome of the case; his or her
demeanor or mann:::r of testifying; his or her opportunity to observe or acquire
knowledge conceming the facts about which he~ or she has testified; his or her
candor, fairness ard intelligence; and the extent to which he or she has been
supported or contradicted by other credible evidence. You may, in short,
accept or reject the testimony of any witness in whole or in part.
As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.
Additional Definitions:
1. Lot 4 refers to Alexander and Ashley Blunts' real property at 4013 Avenue D, Austin,
Texas, 78751.
2. Lot 5 refers to Mary Louise Serafine's real property at 4011 Avenue D, Austin, Texas
78751.
3. "Market value" means the anount that would be paid in cash by a willing buyer who
desires to buy, but is not required to buy, to a willing sdler who desires to sell, but is
under no necessity of selling.
Additional Definitions for Adverse Possession:
4. "Adverse possession" means an actual and visible appropnat10n of real property,
commenced and continued under a "claim of right" that is inconsistent with and is
"hostile" to the rights of the owner ofthe real property.
5. Adverse possession does nc,t need to continue in the same person, but there must be
privity of estate between each holder and his successor.
Court's Charge to the Jury 3
100
BK15299 PG91
6. "Claim of right" means the claimant's intention to appropriate or claim the land as his or
her own.
7. "Hostile" means the acts performed by the claimant of the real property and the use made
of the real property were of such nature and character as to reasonably notify the owner
of the real property that a hostile claim to the property was being asserted.
Additional Definitions for Negligence:
8. "Negligence" means failure to use ordinary care, that is, f::liling to do that which a person
of ordinary prudence would have done under the same or similar circumstances or doing
that which a person of ordinary prudence would not have done under the same or similar
circumstances.
9. "Ordinary care" means that degree of care that would be used by a person of ordinary
prudence under the same or similar circumstances.
I 0. "Proximate cause" means a cause that was a substantial factor in bringing about an
occurrence, and without which cause such occurrence would not have occurred. In order
to be a proximate cause, the act or omission complained of must be such that a person
using ordinary care would have foreseen that the occurrence, or some similar occurrence,
might reasonably result therefrom. There may be more than one proximate cause of an
occurrence.
Court's Charge to the Jury 4
101
o: BK15299 PG92
Question No.1- Adverse Possession- 25 Year Statute
Do you find that Mary Louise Serafine held the disputed area between Lot 4 and Lot 5 in adverse
possession for a continuous and uninterrupted period of twenty-five (25) years?
To establish adverse possession, Mary Louise Serafine must have cultivated, used, or enjoyed the
property.
Answer "Yes" or "No"
Answer: --'N_O__
Court's Charge to the Jury 5
102
o:: BK15299 PG93
If you answered "No" to Question No. 1, then Answer Question No. 2. Otherwise, do not
answer Question No. 2.
Question No.2- Adverse Possession -10 Year Statute
Do you find that Mary Louise Serafine held the disputed area between Lot 4 and Lot 5 in adverse
possession for a continuous and uninterrupted period of ten ( 10) years?
To establish adverse possession, Mary Louise Serafine must have cultivated, used, or enjoyed the
property.
Answer "Yes" or "No"
Answer: NQ
Court's Charge to the Jury 6
103
DC BK15299 PG94
If you answered "No" to Question Nm:. 1 and 2, then Answer Question No.3. Otherwise, do not
answer Question No.3.
Question No. 3- Adverse Possession -Five Year Statute
Do you find that Mary Louise Serafine held the disputed area between Lot 4 and Lot 5 in adverse
possession for a continuous and uninterrupted period of five (5) years?
To establish adverse possession under the five year statute, Mary Louise Serafine must have: (1)
cultivated, used, or enjoyed the property; (2) paid applicable taxes on the property; and (3)
claimed the property under a duly registered deed.
Answer "Yes" or "No"
Answer: NO
7
Court's Charge to the Jury
104
DC BK15299 PG95
If you answered "No" to Question Nos. 1, 2, and 3, then Answer Question No. 4. Otherwise, do
not answer Question No. 4.
Question No. 4- Adverse Possession- Three Year Statute
Do you find that Mary Louise Serafine held the disputed area between Lot 4 and Lot 5 in adverse
possession under title or color of ti1le for a continuous and uninterrupted period of three (3)
years?
"Title" means a regular chain of transfers of real property from or under the sovereignty of the
soil.
"Color of title" means a consecutive chain of transfers to the person in possession that:
(A) is not regular because of a document or record that is not properly recorded or
is only in writing or because of a similar defect that dm:~s not want of intrinsic
fairness or honesty; or
(B) is based on a certificate of headright, land warrant, or land scrip.
Answer "Yes" or "No"
Answer: NO
8
Court's Charge to the Jury
105
DG BK15299 PG96
If you answered "Yes" to Question Nos. I, 2, 3, or 4, then Answer Question No. 5. Otherwise,
do not answer Question No. 5.
Question No. 5 -Trespass
Did a party listed below trespass on Mary Louise Serafine's property?
"Trespasser" means one who enters on the property of another without having
consent of the person who owns or possesses the property. To constitute a
trespass, entry upon another's property need not be in person but may be made by
causing or permitting a thing to cross the boundary of the premises.
Answer "Yes" or "No" for each of the following:
a. Alexander Blunt
b. Viking Fence Company
Court's Charge to the Jury 9
106
o: BK15299 PG97
If you answered "Yes" to Question No. 5 for Alexander Blunt then Answer Question No. 6.
Otherwise, do not answer Question No. 6.
Question No. 6- Actual Damages for Trespass
What sum of money, if any, do you find would fairly and reasonably compensate Mary Louise
Serafine for the trespass, if any, by .A.lexander Blunt on her property?
You are instructed to consider the bllowing elements of damages and no other. Consider each
element separately and do not include amounts for one element in the other element. Do not
include interest on any damages you find:
Answer in dollars and cents for damages, if any.
Answer: -----------------------------------
Court's Charge to the Jury 10
107
o: BK15299 PG98
If you answered "Yes" to Question No.5 for Viking Fence Company, then Answer Question No.
7. Otherwise, do not answer Question No.7.
Question No. 7- Actual Damages for Trespass
What sum of money, if any, do you find would fairly and reasonably compensate Mary Louise
Serafine for the trespass, if any, by Viking Fence Company on her property?
You are instructed to consider the following elements of damages and no other. Consider each
element separately and do not include amounts for one element in the other element. Do not
include interest on any damages you :ind:
Answer in dollars and cents for damages, if any.
Answer:
Court's Charge to the Jury II
108
DC BK15299 PG99
Question No. 8- Negligence- Fence between Lot 4 and Lot 5
With regard to the replacement of the fence between Lot 4 and Lot 5, did the negligence, if any,
of those named below proximately caJse any property damage to Mary Louise Serafine?
Answer "Yes" or "No" for each of the following:
a. Alexander Blunt hiD
b. Ashley Blunt _ _ _\1---''J 0 ____
c. Viking Fence Company ('JO
---- ·----
d. Mary Louise Serafine ___t-._JC__ I - -
12
Court's Charge to the Jury
109
DC BK15299 PG100
If you answered "Yes" to Question No. 8 for more than one: of the persons or company listed
below, then answer Question No.9 with respect to those persons or company. Otherwise, do not
answer Question No.9.
Question No. 9- Comparative Responsibility for Negligem:e
For each person you found caused or contributed to cause the property damage to Mary Louise
Serafine, find the percentage of responsibility attributable to each.
Assign percentages of responsibility only to those you found caused damage to Plaintiff's
property in replacing the fence. The percentages you find must total 100 percent. The
percentages must be expressed in whole numbers. The perce:ntage of responsibility attributable
to a person or company is not necessarily measured by the number of acts or omissions found.
The percentage attributable to anyone need not be the same percentage attributed to that one in
answering another question.
a. Alexander Blunt %
b. Ashley Blunt o;o
c. Viking Fence Company o;o
d. Mary Louise Serafine o/o
Total 100 o;o
Court's Charge to the Jury 13
110
DC BK15299 PG101
Answer Question No. 10 if you answered "Yes" for anyone to Question No. 8. Otherwise, do
not answer Question No. 10.
Question No. 10- Market Value Damages for Negligence
What is the reduction in the market value, if any, in Travis County, Texas, of the Serafine
Property immediately before and immediately after the fence was installed in December 2011?
Do not reduce the amount, if any, in your answer because of the negligence, if any, of any party.
Any recovery
This text is long and has been trimmed here. Open the source document for the complete record.