March 13, 2015
03-14-00621-CV
COURT OF APPEALS
THIRD DISTRICT
AUSTIN, TEXAS
FRANK SELIGER: APPELLANT
THE ETHIOPIAN EVANGELICAL CHURCH: APPELLEE
An appeal from the County Court, at law number 2
Austin, Texas
BRIEF FOR THE APPELLANT
Frank Seliger
2108 East Yager Ln.
Austin, Texas 78754
(512)619-3493
Representing himself: pro se
IDENTITY OF PARTIES AND COUNSEL:
Appellant/Plaintiff f RECEIVED
J MAR 13 2015
Frank Seliger XSg"'
2108 East Yager Ln.
Austin, Texas 78754
Counsel for the Appellant:
Frank Seliger
Representing himself/pro se
Appellees/Defendant
The Ethiopian Evangelical Church
Counsel for the Appellee:
James Minerve
Minerve Law Firm, Attorney
115 Saddle Blanket Trail
Buda, Texas 78610
Table of Contents
Page
IDENTITY OF PARTIES AND COUNSEL i
INDEX OF AUTHORITIES ii
STATEMENT OF THE CASE iii
1.) A short statement regarding the fact that I am representing myself— pro se-- and I am
seeking the Court of Appeals' patience and understanding.
2.) A request: The opposition may try to confuse this appeal by bringing up the details of the
case... unrelated to the improper actions and or errors of the Judge. If they bring up topic
related to "Parol Evidence" or the issue of "Clarity " in the contract - it is an attempt to
drag the Appeals Court into the minutia of the overall case— and a host of false
assertions.
ISSUES PRESENTED iv
1.) Did the County Court Judge err— by inventing imposing an improper trial structure;
designed to exclude pertinent evidence, to limit or entirely stop legal arguments and
objections from the Plaintiff, Frank Seliger. If so... what was this structure... and how
was it applied?
2.) Was there a SPECIFIC document that Frank Seliger tried to submit to the court... and
was that document improperly excluded by the Judge.
3.) Why was that document critical to Frank Seliger's case?
4.) Did the County Court Judge explain or justify the exclusion of the critical document (to
the jury and the other participants in the trial). Was that explanation in accordance with
the Texas Rules of Civil Procedure ?
STATEMENT OF FACTS 1
1.) What does the Texas Rules of Evidence say- with regard to what evidence is "proper";
and therefore should not be excluded from the evidence that the jury may consider?
2.) Did the specific evidence that was excluded by the Judge in the trail... qualify as proper
evidence—according to the Texas Rules of Evidence?
SUMMARY OF ARGUMENT 2
STANDARD OF REVIEW 3
ARGUMENT 4
CONCLUSION (relief sought) 5
APPENDIX 6
CERTIFICATE OF SERVICE 7
INDEX OF AUTHORITIES
STATEMENT OF THE CASE
1.) The Plaintiff wishes the court to understand that he is representing himself to the
court in this Appeal as pro-se; Please excuse any errors I might make in this
document... I will do my best to abide by the court's legal expectations as I
understand them.
2.) I sincerely respect for the Court's mandate... to limit its inquiry to evaluating
accusations of Judicial impropriety and error... I will refrain from discussing the
minutia and the very divergent legal arguments involved in this case. However, I am
very concerned that my legal opponent (the Appellee's attorney) will not refrain from
doing this.
3.) An overview of the case: This is a contractual dispute between two parties. The
contract is a lease agreement... that both parties negotiated and signed. I (the
Defendant in that case) was the Leasee —and the Ethiopian Evangelical Church was
the Plaintiff in that case... represented by their legal representative. The negotiator
and the writer of the lease—was a woman named Lem Lem Berhane—who is part of
the Church's administration. Lem Lem is not a native English speaker —and has no
training in legal matters. Not being skilled in the language or the law.. .she lifted a
leasing contract (almost verbatim from the web) from a web site called
RocketLawyer.com. Lem Lem testified under oath that she faithfully put all of the
elements that both sides said they wanted (prior to the writing of the contract) into the
contract. How she accomplished this - was the main subject of 6 hour trial.
But... Before the dispute became formal... Lem Lem wrote a letter (I will henceforth
refer to it as "Lem Lem's Letter) to the Justice Court... and in that letter, she made
two statements that addressed critical topics that both parties agreed to (prior to the
writing of the contract. These statements are central to the Appellant's legal
argument in this dispute. That letter was entered into the court record when this
dispute was in the Justice Court. That letter in the record— followed the dispute as it
made its way into the County Court.
During the trial in the County Court (that is the subject of this appeal— when I tried to
enter Lem Lem's letter into evidence... Mr. Minerve (The Appellee's new legal
representative) strongly objected to the letter's introduction because it contradicts the
false—but effective -legal strategy that he has devised. Judge Phillips excluded the
letter. And the way he excluded it is so odd- and divergent from standardjudicial
protocol—that it deserves judicial review in the Appeals process.
Thejudical exclusion of evidence... which was so obviously and legally appropriate -
- forms the basis for this appeal.
STATEMENT OF FACTS
The court should note that I have not described the points of contention in the
disputed contract. That information is not relevant to this appeal. The foundation of
this appeal is the exclusion of the letter that Lem Lem Burhane wrote. With that
evidence, TheAppellant would have been able to show thejury that the primary
witness and her lawyer were making false and misleading statements about the intent
of both parties... when they entered into a contractual agreement two years earlier.
These are the relevant questions that the court should consider:
1.) How could Judge Phillips legally exclude evidence (Lem Lem's letter) from the
Jury's consideration when that letter was written by a person (Lem Lem Berhane)
authorized by the party (The Ethiopian Evangelical Church) to make a statement
concerning the subject in the dispute?
2.) Lem Lem was tasked by the Church to write the disputed contract—and the
excluded letter. She was "the party's agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the
relationship."
3.) The details of the letter (not allowed into evidence) pertain directly to the case
itself—and were critical to the Appellant... to counter the false version of the
agreement that the opposition was presenting to the jury.
4.) It was a formal letter to the court. She knew that her statements would be
considered by the court.
5.) The letter was already in the court record: but it was submitted in the "Justice
court." The Justice Court Judge allowed that letter to be entered into evidence—
and it is currently contained in the court record. The Justice Court record was
transferred to the Civil Court when the case advanced to the County Court.
These are the legal reasons why it was improper for Retired Judge Phillips to suppress
that evidence. The Jury should have been allowed to consider it.
In The Texas Rules of Civil Procedure—in the Texas Rules of Evidence—(Under section 80 L
Section (e))
"Statements that are not Hearsay. A statement is not hearsay if:
Section (2) Admission by Party-Opponent. The Statement is offered against a party and is:
A.) the party's own statement in either an individual or representative capacity;
B.) a statement of which the party has manifested in adoption or belief in its truth;
C.) a statement by a person authorized by the party to make a statement concerning the
subject;
D.) a statement by the party's agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the relationship.
SUMMARY OF ARGUMENT
The Appeals court may want to know the specific legal reason that Judge Phillips gave for
excluding Lem Lem's Letter. The answer is:
Judge Phillips gave no legal justification for suppressing that evidence.
If the Court will review the submitted excerpt from the Court Reporter's transcript... the court
will see that the above answer is substantiated.
These are the circumstances that led up to the Judge's improper suppression of evidence:
The trail started with the Judge calling the first witness to testify. The witness Lem Lem
Berhane is the representative of the Appellee... who is suing me. She can be described with
complete accuracy as a "Hostile Witness" to me. She is suing me and wants to win this case.
She is being coached by her lawyer to lie in court about the fundamental elements of our
agreement... and she is yielding to his counsel.
When the trial started, Judge Phillips did not allow any opening statements. (This judicial
structure was— in itself, detrimental to my case and I believe it to be improper).
Because I was the Defendant... the Lawyer, Mr. Minerve was instructed by the Judge to call
the first witness. Mr. Minerve call the witness that I had subpoenaed... Lem Lem Berhane. The
Court should understand that Lem Lem Berhane hired Mr. Minerve to carry out this lawsuit
against me. On that day in the County Court... They had a friendly, clear, well-rehearsed
interrogation. When Mr. Minerve concluded... the Judge did not allow me to call my first
witness. As person acting in my own defense... pro se... My preference for a first witness-
would have been myself. I have a right to act as witness and as legal representative. The Judge
had allowed no opening statements. At that time... the Jury did not even know what the case
was about and what the legal arguments were. But the Judge refused to let me testify. He
insisted that Lem Lem Berhane remain on the witness stand. He demanded that I question her—
—or he would dismiss her from testifying altogether. This threat was improper, unfair and
detrimental to my case. The jury (at the beginning of the trial) did not understand the case... and
I had not been allowed to give them my side of the dispute. They would not, and could not
understand the questions I was asking Lem Lem if they did not even know what the dispute was
about. The opposition had done a very good job of feeding them a lot of false information.
I protested repeatedly... but the Judge was adamant. He imposed a structure upon me that I can
only describe as... bizarre. I was instructed to present my side of the legal argument by asking
short questions to a witness, Lem Lem.
The problem with that is ... Lem Lem wants me to lose this legal argument. She is completely
hostile to my case... and is very reluctant to give clear or truthful answers—which might
contradict the testimony she had given 3 minutes earlier).
The exchange between the Judge and myself is reflected in the Court Reporters transcript... (it
begins on page 30) I am requesting that it will be reviewed bv the Appeals Court.
Throughout the period that Lem Lem was on the witness stand, The Judge worked very hard to
maintain the bizarre structure that I have described: (i.e. Insisting the Appellant question Lem
Lem—before the Jury had heard his side of the legal dispute.)
There were four tools that he used to impose the structure.
1.) If I tried to explain something to the jury he repeatedly if I had a question for the
witness.
2.) If I tried to explain something to the jury... he frequently ordered me to "stop
testifying."
3.) If I tried to explain something to the jury... He frequently asked if the witness could
"step down" and/or stated with great urgency and concern... that she needed to get
back to work.
I was very desirous that the jury should understand my side of the legal argument... and the
Judge was very desirous that they should not.
I think it would be helpful for the Court to hear a description of Judge Phillips' "non-sequitur"
reasoning... because it illustrates his improper conduct and judicial error .
(This is recorded in the Court Reporter's transcript... Page 29... Line 7)
I continued to give the Judge reasons why I should be allowed to testify - before I questioned my
subpoenaed witness. And the Judge continued to block that request... then.. .(think he realized
that he did not have a strong enough justification...) because he very suddenly turned his
attention away from me and turned to Lem Lem (on the witness stand).
He asked her the following questions:
Judge Phillips: Are you employed?
Lem Lem: Yes.
Judge Phillips: Do you have a job.
Lem Lem: Yes I do.
Judge Phillips: Where do you work? (Starts on page 29... line 19 and goes through page 30)
From Lem Lem's answers, Judge Phillips made the following NON-SEQUETOR conclusion:
Lem Lem works. Lem Lem has a job. Lem Lem's needs to get back to her job. Nothing in
this courtroom should delay Lem Lem from getting back to her job.
Once he had that conclusion firmly in hand— he quickly turned his attention back to me. In the
next series of statements... He justified his insistence that I question the witness right now...
(because she needed to get back to work) and he strongly implied that he would dismiss Lem
Lem as a witnessall together if I did not beginaskingher questions... right now.
H made that implication —crystal clear.
The above is a description of the Judge's "Improper judicial structure" and the way he imposed
it—and the vailed threat that he used.
The otherimpropriety was the suppression of legitimate evidence. As I stated earlier... he did
not give any legal reason for suppressing Lem Lem's Letter.
This is anaccount of his actions (and the transcript will testify as to the accuracy of my
description: (Page 58... Line 10 through 18.)
Lem Lem was on the witness stand at the time. I hadjust submitted the letter to be admittedas
evidence). Judge Phillips took a quick (5 second) scanof the letter...
He then said, "It's just the same thing she has testified today. It is a waste of time. Let's move
on to new questions."
When I objected ... Judge Phillips said, "She has given her testimony. The jury heard it. What
new questions do you have for her? She needs to go back to work. She says she needs to go
back to work.".
The above statement shows that Judge Phillips' "false urgency" technique... eventually evolved
into a full-blown falsehood. The truth is that Lem Lem never said that she "needed to go back
to work." ! You will not find that anywhere in the transcript. In fact... Lem Lem never
indicated if she even cared about going back to work. It is a safe assumption that most state
workers (Lem Lem works for the State) don't go back to work if the court session lasts into the
mid-afternoon. (Which this one did.) The transcript clearly shows that Judge Phillips invented
and then used this fiction repeatedly.. .to justify his improper structure.
What the above quote illustrates something unusual... The Appellant has described two
illustrations of "improper judicial conduct".
1.) The Judge suppressed legitimate evidence (Lem Lem's letter).
2.) He imposed an improper structure on the court.. .that was used to prevent the Appellant
from presenting his side of the dispute to the jury.
I have included a section of the Court Reporter's transcript with this Appeal (with highlights
and comments) to speed the Court's review process. I did not include the full testimony of
the witness Lem Lem Berhane... because I am aware that the Court of Appeals has a huge
work load.. .and it is the Appellant's responsibility to condense the scope of review to the
parts of the trail that indicate —judicial error or impropriety.
CONCLUSION
Because ofjudicial error and impropriety, I was blocked from providing critical information
that (by every legal standard).. .should have been accepted as legitimate evidence in a trial.
Without that letter... I was unable to demonstrate that there were contradictions between the
witnesses stated testimony—and her written words. Her lawyers' emphatic and false assertions
... also could not be adequately disproven without that evidence.
As a consequence... the outcome of the trial was that Jury ruled for the Plaintiff... and against
me.
RELIEF SOUGHT
The Appellate Court should throw out the verdict that greatly harmed the Appellant in the
County Court. I am entitled to get a fair trial... and that has yet to happen.
AND FINALLY....
Judge Phillips was a great help to me in filing this Appeal. He could have worked against it...
And if he had... it would not have happened. I told the Judge that I enjoyed my experience in
his courtroom (despite the fact that I lost the case) because I got to see a brilliant old-school
legal scholar- obviously, a dedicatedpubic servant- exercise the power of the state. It was
painful for me to lose... but it was fascinating. AndI am confident that the Court of Appeals
will assist me in making things right.
The unfortunate by-product of any effective appeal is a harsh (but accurate) criticism of a
Judge's specific actions ... in a specific trial. Nothing more is asserted by the Appellant.
APPENDIX:
Included with this Appeal are the following:
1. A copy of the relevant provisions of the "Texas Rules of Evidence"
2. A copy of the Court Reporter's record... (the section which is relevant to this Appellants
Brief—and which substantiates judicial impropriety.)
3. Lem Lem's Letter to the Justice Court; The letter that Judge Phillips improperly
excluded from the Juries consideration.
Most respectfully submitted:
CERTIFICATE OF SERVICE
A complete copy of this document was
sent to the Defendant's attorney... by
certified mail.
Seliger Pro se
Texas Rules ofEvidence v^ \• A "*~~~~/ \\s Page 24 of35
(a) Statement. A "statement" is (1) an oral or written verbal expression or (2)
nonverbal conduct of a person, if it is intended by the person as a substitute for verbal
expression.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and
any matter implied by a statement, if the probative value of the statement as offered
flows from declarant's belief as to the matter.
(d) Hearsay. "Hearsay" is a statement, other than one made by the declarant while
testifying at a trial or hearing, offered in evidence to prove the truth of the matter
asserted.
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is:
(A) inconsistent with the declarant's testimony, and was given under oath subject to
the penalty of perjury at a trial, hearing, or other proceeding except a grand jury
proceeding in a criminal case, or in a deposition;
(B) consistent with the declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive;
(C) one of identification of a person made after perceiving the person; or
(D) taken and offered in a criminal case in accordance with Code of Criminal Procedure
article 38.071.
(2) Admission by Party-Opponent. The statement is offered against a party and is:
(A) the party's own statement in either an individual or representative capacity;
1 (B) a statement of which the party has manifested an adoption or belief in its truth;
(C) a statement by a person authorized by the party to make a statement concerning
(D) a statement by the patty's agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of the relationship; or
(E) a statement by a co-conspirator of a party during the course and in furtherance of
the conspiracy.
(3) Depositions. In a civil case, it is a deposition taken in the same proceeding, as
same proceeding is defined in Rule of Civil Procedure 207.* Unavailability of deponent
is not a requirement for admissibility.
*[By Supreme Court Order, dated December 31, 1998, effective January 1, 1999, the
reference to Rule 207 is changed to 203.6.]
[DRAFTERS' COMMENT TO RULE 801
The definitions in Rule 801(a), (b), (c) and (d) combined bring within the hearsay rule
four categories of conduct. These are described and illustrated below.
http://wwvv.michaelariens.com/evidence/freandtrc/trcframe.htm 3/4/2015
*
1 CROSS-EXAMINATION
2 BY MR. SELIGER:
3 Q. Do you want to be called Limlim?
4 A. You can call me Limlim or Lemie.
Q. It doesn't matter?
A. It doesn't matter.
(V»^ 7 MR. SELIGER: Okay. Your Honor, I have a
point of procedure I'd like to ask you. And that is
pchwe€A 9 that can I wait ask and Limlim about all the things I
want to ask her. I actually paid for her to be a
n witness today. I need to explain some things to the
12 jury and actually testify myself.
13 THE COURT: Well, I would prefer that we
14 have a witness on the stand once because it's more
^re.15 economical about the witness' time.
aw^l \16 MR. SELIGER:
on my behalf first and then I will definitely ask her a
Yes. I just need to testify
^
18 lot of questions.
tylM-
THE COURT: Are you employed?