ACCEPTED
03-14-00535-CV
5404993
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/22/2015 4:25:30 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00535-CV
__________________________________________________________
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS
5/22/2015 4:25:30 PM
AUSTIN, TEXAS JEFFREY D. KYLE
__________________________________________________________
Clerk
DAVID YOUNG,
Appellant
vs.
TRAILS END HOMEOWNERS ASSOCIATION, INC.;
TLS PROPERTIES, LTD.; TLS OPERATING COMPANY, LLC;
VAN KEENE; AND RICK DURAPAU,
Appellees
On Appeal from the 200th Judicial District Court of Travis County, Texas
(Honorable Scott H. Jenkins, of the 53rd Judicial District Court, Presiding)
Trial Court Cause No. D-1-GN-10-003864
__________________________________________________________
APPELLEES TLS PROPERTIES, LTD. AND
TLS OPERATING COMPANY, LLC’S
BRIEF
__________________________________________________________
Derek Quick
State Bar No. 24072471
STRASBURGER & PRICE, LLP
720 Brazos Street, Suite 700
Austin, Texas 78701
512.499.3600
512.499.3660 – fax
derek.quick@strasburger.com
ATTORNEYS FOR APPELLEES
TLS PROPERTIES, LTD. AND TLS
OPERATING COMPANY, LLC
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................i
TABLE OF AUTHORITIES .................................................................................... II
I. STATEMENT REGARDING ORAL ARGUMENT ..................................... 1
II. ISSUES PRESENTED (RESTATED) ............................................................ 2
III. STATEMENT OF FACTS .............................................................................. 2
IV. SUMMARY OF THE ARGUMENT .............................................................. 5
V. ARGUMENT .................................................................................................10
A. Has Mr. Young proven he has superior title to the Extended
Property? .............................................................................................11
1. Young failed to admit any legally competent evidence in
support of his claim that he had superior title to the Extended
Property. ....................................................................................12
2. Oral testimony to establish superior title is not legally
competent evidence. ..................................................................14
3. Judicial notice of chain of title is not proper. ...........................16
B. Has Mr. Young proven that the Extended Property conflicts
with either Lot 140 (owned by TLS) or Lot 139 and the
adjoining 1.4777 acre tract (both owned by Trails End)? ................... 18
1. There is no conflict among the properties because the Extended
Property language was correctly interpreted to mean the center
of that portion of Big Sandy Creek in between Lot 52 and Lot
140. ............................................................................................18
C. Response to Appellant’s Issue No. 1: Mr. Young’s claim that
the 1962 plat is void as a matter of law fails for several reasons........ 22
D. Joinder in Trails End’s brief. ...............................................................25
VI. CONCLUSION AND PRAYER ...................................................................25
Page i
TABLE OF AUTHORITIES
Page(s)
CASES
Coale v. Scott,
No. 07-09-0249-CV, 2009 Tex. App. LEXIS 8976 (Tex. App.—Amarillo
Nov. 19, 2009) ..............................................................................................16, 17
Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc.,
686 S.W.2d 351 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) ................... 22
Gillum v. Temple,
546 S.W.2d 361 (Tex. Civ. App.—Corpus Christi 1976, writ ref'd n.r.e.) ........ 14
Hejl v. Wirth,
161 Tex. 609, 343 S.W.2d 226, 4 Tex. Sup. Ct. J. 223 (Tex. 1961) .................. 11
Huey v. Huey,
200 S.W.3d 851 (Tex. App.—Dallas 2006, no pet.) ..........................................23
Kilpatrick v. McKenzie,
230 S.W.3d 207 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ...................11
Murphy v. Tribune Oil Corp., 656 S.W.2d 587 (Tex. App.—Fort Worth
1983) ...................................................................................................................14
Ramsey v. Jones Enterprises,
810 S.W.2d 902 (Tex. App.—Beaumont 1991, writ denied) .............................14
Rogers v. Ricane Enters.,
884 S.W.2d 763 (Tex. 1994) ..................................................................11, 13, 17
SEI Business Systems, Inc. v. Bank One Taxes, N.A.,
803 S.W.2d 838 (Tex. App.—Dallas 1991, no writ) ....................................16, 17
State of California Department of Mental Hygiene v. Bank of Southwest
National Association,
354 S.W.2d 576 (Tex. 1962) ..............................................................................22
Union Pac. Resources Co. v. Mathews,
No. 09-98-076-CV, 1998 Tex. App. LEXIS 2024 (Tex. App.—Beaumont
Apr. 2, 1998, no pet.) (not designated for publication) ......................................15
Page ii
STATUTES
TEX. REV. CIV. STAT. ANN. Article 974a, § 5 ..........................................................22
RULES
TEX. R. APP. P. 38.1(i)..............................................................................................23
TEX. R. APP. P. 38.1(g) ...............................................................................................2
TEX. R. CIV. P. 39 .....................................................................................................24
Page iii
I.
STATEMENT REGARDING ORAL ARGUMENT
Although Appellant included “Oral Argument Requested” on the cover page
of his brief, within the body of the brief, Appellant states that he believes a
decision can be made on the record. Appellees TLS Properties, Ltd. and TLS
Operating Company, LLC believe that oral argument is not warranted in this
appeal as the case sets forth established law and undisputed facts proven at trial.
Appellant failed to meet his burden to present evidence in support of his claims
and Defendants supplied more than ample evidence to support their counterclaims
and affirmative defenses. Accordingly, this case is appropriate for disposition by
memorandum opinion without the necessity of oral argument. However, to the
extent this Court grants Appellant’s request for oral argument, Appellees request
an opportunity to present argument as well.
Page 1
II.
ISSUES PRESENTED (RESTATED)
1) Whether Mr. Young has proven he has superior title to the Extended
Property.
2) If Mr. Young has established superior title to the Extended Property,
whether the Extended Property in fact conflicts with either Lot 140
(owned by TLS) or Lot 139 and an adjoining 1.4777 acre tract (both
owned by Trails End).
3) Whether the trial court was barred as a matter of law from recognizing
the 1962 re-plat. (Response to Appellant’s Issue No. 1.) 1
III.
STATEMENT OF FACTS
In the interest of avoiding unnecessary duplication, Appellees TLS
Properties, Ltd. and TLS Operating Company, LLC (collectively referred to herein
as “TLS”) refer the Court to the statement of facts submitted by co-Appellee Trails
End Homeowners’ Association (referred to herein as “Trails End”), which is
incorporated by reference.
With respect to Appellant’s statement of facts, pursuant to TEX. R. APP. P.
38.1(g), TLS objects to the following statements as being accepted as true, as they
are either not supported by record cites, are legal conclusions, or are contradicted
by other evidence in the record:
1
In the body of his brief, this is generally how Appellant refers to his first issue (see page 15).
In his Issues Presented (on pages 3-4), he appears to split the issue into subparts and lists them as
Issues 1 and 2.
Page 2
• “This testimony was corroborated by Appellees’ local fact witness, June
Roberts, who testified that for “three, four years” there had been no access to
Lots 139 or 140, situated north and west of Young’s Lot 52. 2RR.236 ll.3-
17. This is the only testimony of use regarding that property in the record.”
(emphasis in original).
Objection: TLS witness Bruce Smith provided testimony regarding use of
the property at issue, including leasing it to the Trails End Homeowners’
Association, use for boat access, and use as a recreation area. 2RR 216:11-
218:12.
• “Smith also testified that he did not know the “gully” boundaries with
respect to the property lines of Lot 52. 2RR.226 ll. 18-21.”
Objection: Misconstrues the testimony in the record. Mr. Smith was asked
by Mr. Young, “But do you know that the south property line of Lot 52 is
200 feet away from Big Sandy Gully? Do you know that?” and Mr. Smith
responded: “No, I don’t know that.” In addition, above the testimony cited
by Mr. Young, Mr. Smith was asked “Do you know that [the south property
line] does not get close to the Big Sandy Gully?” and he responded: “I don't
because there is a gully there. I've seen it.” 2RR 226:14-17. In other words,
in this line of questioning, Mr. Young was merely attempting to get Mr.
Smith to concede a point, and Mr. Smith refused to do so.
Page 3
• “To do so, Crichton had to assume that the deed chain from Smith to Young
does not truly extend the sidelines of Lot 52 to the “center of Big Sandy
Creek.” 2RR.152 ln. 22 - 2RR.153 ln. 5.”
Objection: Record cite does not support this assertion, and in particular, no
mention is made regarding a purported “deed chain from Smith to Young.”
• “Young appeared pro se, and despite difficulty, provided the necessary
evidence to refute Defendants’ counterclaims and to establish his claims.”
Objection: This is a legal conclusion.
• “His chain of title (testified over objection) arose from the 1955 conveyance
and encompassed land from the extension of the sidelines of his lot “to the
center of Sandy Creek.” 2RR.89 ll. 2-18.”
Objection: As discussed below, this is legally incompetent evidence to
prove his title. So although Mr. Young did testify that “the 1955
conveyance is clear that what Mr. Smith sold was the extension of the
sidelines to the center of Sandy Creek, and that's what was conveyed
through title to me,” this should not be accepted as true for purposes of this
appeal.
• “Lot 52 sideline extensions (used by Crichton in his survey) clearly show
Lot 140 conflicts with the deed of Lot 52, and should demonstrate his prior
title to the center of Sandy Creek. 2RR.103 ll. 4-7.”
Page 4
Objection: This is a legal conclusion. In addition, the cited testimony does
not support this statement, and it is merely Mr. Young’s argument about
what the survey allegedly shows. The survey speaks for itself.
• “Lot 139 was an illegal plat. 2RR.105. ll. 23-24.”
Objection: This is a legal conclusion. In addition, the cited testimony is
argument or merely a statement about Mr. Young’s belief: “I wouldn't
acquiesce to that position because I believe the '62 plat was illegal.”
• “The 1.477 acres encroaches onto Lot 52. 2RR. 107 ll. 7-9.”
Objection: This is a legal conclusion. In addition, Mr. Young was being
asked his contention; it is not evidence that the 1.477 acres in fact
encroaches onto Lot 52.
IV.
SUMMARY OF THE ARGUMENT 2
This lawsuit involves a parcel of land within the Trails End Subdivision,
which was originally platted in 1947. Appellant David Young owns Lot 52 in the
Trails End Subdivision, and alleges in this lawsuit that his property also includes
“that parcel of land being the extensions of the side lot lines of Lot 52 to the center
line of Big Sandy Creek” (referred to herein as the “Extended Property”). Mr.
Young further alleges that the property boundaries of parcels belonging to
2
Again, to avoid unnecessary duplication, TLS will not address all issues raised in Mr. Young’s
initial brief, but rather refers the Court to Trails End’s brief, which is incorporated by reference.
Page 5
Appellees TLS and Trails End encroach upon or conflict with Mr. Young’s
property, and more specifically, with the Extended Property (as he interprets the
boundaries of the Extended Property). Mr. Young filed suit against Appellees,
raising a number of tort and property based claims. However, in this appeal, Mr.
Young only seeks to overturn the adverse judgment on his trespass to try title claim
(and ancillary issues related to that claim, including adverse possession findings
and an attorneys’ fee award in favor of Trails End). 3
Despite the focus of Mr. Young’s brief on a host of other issues, Mr.
Young’s appeal turns on whether: 1) Mr. Young has proven he has superior title to
the Extended Property; and 2) if he has established superior title to the Extended
Property, whether the Extended Property in fact conflicts with either Lot 140
(owned by TLS) or Lot 139 and an adjoining 1.4777 acre tract (both owned by
Trails End).
Mr. Young’s appeal fails for several reasons. Mr. Young, who had the
burden of proof at trial, failed to provide any evidence in support of his claim that
he had superior title to the Extended Property. Importantly, it is incumbent on the
plaintiff to recover upon the strength of his own title, not the weakness of his
opponent’s title. Mr. Young ignores his burden entirely, and spends most of his
brief focusing on a new argument claiming that Appellees’ title is somehow void
3
Mr. Young’s tort claims were not even mentioned in his initial brief.
Page 6
because a 1962 re-plat allegedly failed to comply with a statute in effect at the
time. In fact, although he never directly addresses this in his brief, Mr. Young
failed to even offer his own deed into evidence at trial. In terms of written
instruments in the actual record, the Extended Property language is only found in a
1955 deed from T.L. Smith, Jr. to Sylvia Trundle. Thus, Mr. Young did not
establish superior title by proving a regular chain of conveyances from the
sovereign or by proving a superior title out of a common source, as is required for
his trespass to try title claim.
In an apparent effort to excuse this fatal flaw in his case, Appellant’s brief
points to a few lines of oral testimony from Mr. Young, and further requests that
the Court take judicial notice of the chain of title. Neither attempt to establish
chain of title is legally sufficient or proper. As to the former—establishing title
through oral testimony—this is legally insufficient. Under Texas law, if title to
real property is directly at issue, as it is in this case, proof of title must be made by
written instruments. Therefore, even if Mr. Young’s oral testimony did establish
the full chain of title going back to the sovereign or to a common owner (which it
did not, as will be shown below), the testimony would still be legally incompetent
evidence and insufficient to establish his right to relief.
With regard to Mr. Young’s request that the Court take judicial notice of the
Trundle-Scot-Young chain—this too should be rejected by the Court. Although
Page 7
judicial notice may be taken for the first time on appeal, appellate courts generally
avoid taking judicial notice of matters which go to the merits of a dispute. Mr.
Young is in essence asking this Court to completely ignore the trial on the merits,
and Mr. Young’s failure to present any evidence supporting his claims, and simply
have the parties start over by asking the Court to take judicial notice of the critical
evidence he failed to present. This not only goes to the merits of the dispute, but it
is the key issue in the dispute.
In addition, even if the Court excused Mr. Young’s failure to introduce into
the record his deed and the full chain of title going back to a common source,
which was his burden at trial, that still does not mean Mr. Young is entitled to
relief. Mr. Young assumes throughout his brief that there is no dispute as to the
meaning of “the center of Big Sandy Creek” contained in the 1955 Trundle deed,
referring to this language as “unambiguous” and treating it as if it clearly
establishes a conflict with the property owned by TLS and Trails End. However,
the meaning of this language was a key issue at trial, and the trial court properly
found that it should be interpreted to mean the center of that portion of the creek
between Mr. Young’s Lot 52 and Appellees’ Lots 139 and 140. That interpretation
is consistent with the 1947 plat, as well as the evidence in the record, including the
testimony of Bruce Smith (the grandson of T.L. Smith, Jr. and representative of the
TLS entities), a Travis County Appraisal District map, the Steger & Bizell survey,
Page 8
and the expert opinion of Herman Crichton, who testified that his opinion was that
the boundary of Mr. Young’s Lot 52 is the center of the portion of Sandy Creek
between Lot 52 and Lot 140, as depicted in the Steger & Bizzell survey. Further,
Mr. Young’s interpretation would cause additional conflicts with neighboring lots,
even as depicted on the 1947 plat, since nearby Lots 53 and 54 contain the same
Extended Property language. In other words, even going back to the original 1947
plat, Mr. Young’s interpretation does not make any sense, as it would create
conflicts with other neighboring lots, while Appellee’s interpretation would avoid
any conflict and harmonize the property boundaries in the subdivision.
Finally, Mr. Young, for the first time on appeal, contends that a 1962 re-plat
was void as a matter of law for failing to comply with a re-platting statute in effect
at the time. This argument also fails for a number of reasons. First, the Court
should find this argument was waived for failing to present it to the trial court.
Second, the statute on its face applies to “any tract of land situated within the
corporate limits of any city in the State of Texas,” and there is nothing in the
record or in Mr. Young’s brief establishing that the property at issue was within a
city’s corporate limits in 1962. Third, Mr. Young fails to offer any supporting
authority for his claim that a failure to obtain approvals from affected landowners
renders the re-plat “void as a matter of law,” and the plain text of the statute shows
that is not the case. Fourth, Mr. Young is asking this Court to find the 1962 re-plat
Page 9
void, but Mr. Young did not join any of the neighboring property owners who
would be impacted by that decision as parties in this case. And finally, even if the
Court were to find that the 1962 re-plat were void as a matter of law despite all
these obstacles, that still would not mean that Mr. Young prevails in his trespass to
try title claims. Mr. Young would still have to show that the language in his deed
means what he claims it does, and Mr. Young cannot meet this burden, particularly
on this record.
For all these reasons, Mr. Young’s appeal should be denied, and the trial
court’s judgment should be affirmed.
V.
ARGUMENT
Please see Trails End’s brief for the appropriate standard of review, which is
incorporated by reference as if set forth fully herein.
In this brief, TLS is only responding directly to Appellant’s Issue No. 1 (in
Subsection C. below). 4 The remaining issues will be addressed by Appellee Trails
End. TLS joins in and incorporates by reference Trails End’s briefing on those
issues.
Prior to addressing Appellant’s Issue No. 1, however, TLS must address two
issues that Appellant failed to directly address in its brief, but which are issues that
4
As noted in footnote 1, Appellant appears to split Issue 1 from the body of his brief into Issues
1 and 2 in his Statement of Issues.
Page 10
TLS believes are fatal to Mr. Young’s appeal. Specifically, those issues are: (1)
whether Mr. Young has proven he has superior title to the Extended Property; and
2) if he has established superior title to the Extended Property, whether that
Extended Property in fact conflicts with either Lot 140 (owned by TLS) or Lot 139
and an adjoining 1.4777 acre tract (both owned by Trails End).
A. Has Mr. Young proven he has superior title to the Extended Property?
In a trespass to try title claim, under “well-established Texas law,” it is
incumbent on the Plaintiff to recover upon the strength of his own title, not the
weaknesses of Defendants’ title. Kilpatrick v. McKenzie, 230 S.W.3d 207, 213-
214 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Hejl v. Wirth, 161
Tex. 609, 610-11, 343 S.W.2d 226, 4 Tex. Sup. Ct. J. 223 (Tex. 1961)); see also
Rogers v. Ricane Enters., 884 S.W.2d 763, 768 (Tex. 1994). The plaintiff may
recover (1) by proving a regular chain of conveyances from the sovereign, (2) by
proving a superior title out of a common source, (3) by proving title by limitations,
or (4) by proving prior possession, and that the possession has not been abandoned.
Rogers, 884 S.W.2d at 768. Therefore, the burden rested upon Mr. Young, as
plaintiff below, to prove a prima facie right to title and possession by one of these
methods. Kilpatrick, 230 S.W.3d at 213-214.
Moreover, any purported issues with a defendant’s title are irrelevant unless
and until a plaintiff establishes his prima facie right to title. See id. at 214:
Page 11
[W]hen, as in this case, the defendant is shown to be in possession of
the land in controversy and the plaintiffs fail to establish their prima
facie right to title, judgment must be entered in the defendant's favor.
This is true even though the defendant may have pled a title that he
failed to establish, because under this well-settled and unforgiving
law, plaintiffs are not entitled to recover unless their own title has
been affirmatively proven.
1. Young failed to admit any legally competent evidence in
support of his claim that he had superior title to the
Extended Property.
As noted above, Mr. Young contends that he owns Lot 52, along with the
Extended Property defined as “that parcel of land being the extensions of the side
lot lines of Lot 52 to the center line of Big Sandy Creek.” In his brief, Mr. Young
raises a number of arguments, including why he believes the 1962 re-plat is
allegedly void, why T.L. Smith, Jr. could not give away what he did not own, and
why the Extended Property language is allegedly unambiguous and that it means
Mr. Young owns the land “all the way to the center of Big Sandy Creek” (though
Mr. Young never does show precisely where this would be should he prevail).5
Mr. Young, however, failed to prove a threshold issue at trial, making all these
other issues on appeal irrelevant. Specifically, as the trial court correctly found in
Finding of Fact No. 14, “Plaintiff did not offer any credible evidence that he owns
the Extended Property, as described above.”
5
This was true both at the trial court and in his Initial Brief. In other words, throughout this
entire litigation, Mr. Young has never provided any indication of where the precise boundary line
should be, other than some undefined point at the “center of Big Sandy Creek.”
Page 12
In fact, at the trial below, Mr. Young failed to even offer his own deed into
evidence at trial, much less the intervening deeds between the conveyance from
T.L. Smith, Jr. to Ms. Trundle and the conveyance in which Mr. Young ultimately
acquired his property. In terms of written instruments that were admitted in the
record, the only deed in which the Extended Property language is found is in a
1955 deed from T.L. Smith, Jr. to Sylvia Trundle.6 Thus, Young did not establish
superior title to the Extended Property by proving a regular chain of conveyances
from the sovereign or by proving a superior title out of a common source, as is
required for his trespass to try title claim. Rogers, 884 S.W.2d at 768. Without
proof in the record that he had title to the Extended Property, any contention that
the Extended Property conflicts with TLS’s and Trails End’s properties is entirely
irrelevant as it relates to Mr. Young.
Curiously, Mr. Young does not even address, much less attempt to excuse,
this critical omission in his brief. Rather, he sidesteps the issue by asserting in his
Statement of Facts that his chain of title was established through his oral
testimony. 7 Mr. Young also requests, in connection with his argument that the
deeds are unambiguous, that the Court simply take judicial notice of his chain of
6
Plaintiff’s Exhibit 4, included in Appellant’s Appendix at Tab 5.
7
See Appellant’s Brief at 10 (“His chain of title (testified over objection) arose from the 1955
conveyance and encompassed land from the extension of the sidelines of his lot “to the center of
Sandy Creek.”) (citing Mr. Young’s testimony at 2RR.89 ll. 2-18).
Page 13
title back to Ms. Trundle.8 As shown below, however, neither attempt is proper,
and both should be rejected by the Court.
2. Oral testimony to establish superior title is not legally
competent evidence.
Under Texas law, “[w]here title to real property is directly in issue, proof of
title must be made by written instruments.” Murphy v. Tribune Oil Corp., 656
S.W.2d 587, 589 (Tex. App.—Fort Worth 1983, writ dism’d) (citing Gillum v.
Temple, 546 S.W.2d 361 (Tex. Civ. App.—Corpus Christi 1976, writ ref'd n.r.e.)).
In Murphy, the only evidence offered to establish title to certain mineral interests
was oral expert testimony, and the court held that the expert testimony was “no
evidence of any right to the mineral interests claimed by appellees.” Murphy, 656
S.W.2d at 589. Mr. Young did not even go that far; all he offered was his own
conclusory lay witness testimony. This is not legally competent evidence to
establish his superiority of title. See id.:
In this case no written documentation was offered to prove that
appellees were successors in title to McCrory. The only evidence
offered to prove that allegation was in the form of oral testimony. In a
case such as this such testimony is not legally competent evidence.
See also Ramsey v. Jones Enterprises, 810 S.W.2d 902, 905 (Tex. App.—
Beaumont 1991, writ denied) (holding that party failed to meet its burden when
only evidence supporting trespass to try title claim was oral testimony of expert);
8
See Appellant’s Brief at 18 (“Here, the subject property deeds to the Trundle-Scot-Young chain
of title are unambiguous. Judicial notice of that chain is hereby requested.”).
Page 14
Union Pac. Resources Co. v. Mathews, No. 09-98-076-CV, 1998 Tex. App. LEXIS
2024, at *6 (Tex. App.—Beaumont Apr. 2, 1998, no pet.) (not designated for
publication) (“Interestingly, the record does not establish ownership of the subject
property. . . . Oral testimony of title is not sufficient probative evidence, even if
given by an expert.”).
Moreover, the entirety of Mr. Young’s testimony that he claims establishes
his chain of title, and that his property encompassed land from the extension of the
sidelines of his lot “to the center of Sandy Creek,” is as follows:
We can talk about issues after the '62 plat, but the 1955 conveyance is
clear that what Mr. Smith sold was the extension of the sidelines to
the center of Sandy Creek, and that's what was conveyed through title
to me. 9
Significantly, the testimony Mr. Young cites does not include any discussion
about the various transactions that occurred between the 1955 conveyance from
T.L. Smith, Jr. to Ms. Trundle and the conveyance in which Mr. Young ultimately
acquired title (and Mr. Young does not claim that he acquired title directly from
Ms. Trundle). Therefore, even if oral testimony is considered competent evidence,
the testimony on which Mr. Young relies still does not establish a chain of title to a
common source.
9
The additional lines cited by Mr. Young only contained objections from counsel and discussion
from the Court regarding the scope of Mr. Young’s testimony as a lay witness.
Page 15
3. Judicial notice of chain of title is not proper.
As to the latter attempt at establishing chain of title—Mr. Young’s request
that the Court take judicial notice of the Trundle-Scot-Young chain10—this too
should be rejected by the Court. Even though courts may take judicial notice at
any time, even on appeal, “appellate courts are reluctant to take judicial notice of
matters which go to the merits of a dispute.” SEI Business Systems, Inc. v. Bank
One Taxes, N.A., 803 S.W.2d 838, 840-841 (Tex. App.—Dallas 1991, no writ)
(concluding that taking judicial notice was not proper when evidence went to
merits of dispute). As the Amarillo Court of Appeals explained in denying a
motion for judicial notice:
Documents that are not a part of the clerk’s record or reporter’s record
are not part of the appellate record and may not be considered by the
reviewing court. As a general rule, appellate courts take judicial notice
only to determine jurisdiction over an appeal or to resolve matters
ancillary to decisions which are mandated by law (e.g., calculation of
prejudgment interest when the court renders judgment). Even though
there are limited circumstances where an appellate court might take
judicial notice of undisputed facts, to do so in this case runs the risk of
effectively rendering this Court into one of original, not appellate
jurisdiction.
Coale v. Scott, No. 07-09-0249-CV, 2009 Tex. App. LEXIS 8976, at *2 (Tex.
App.—Amarillo Nov. 19, 2009) (per curiam order on motion for judicial notice)
(internal citations and quotations omitted).
10
See Brief at 18 (“Here, the subject property deeds to the Trundle-Scot-Young chain of title are
unambiguous. Judicial notice of that chain is hereby requested.”).
Page 16
Here, the evidence for which Mr. Young requests judicial notice goes to the
very heart of the dispute. Indeed, establishing superior title by showing his chain
of title to the sovereign or a common source is how Mr. Young (as Plaintiff) had to
establish his prima facie case under his trespass to try title cause of action. Rogers,
884 S.W.2d at 768. Mr. Young is in essence asking this Court to completely
disregard his failure to admit (or even offer) his deed into the record (as well as
any other deeds in the alleged chain of title other than the Trundle deed), and to
allow Mr. Young a second bite at trying to prove his case. To do so would be
“effectively rendering this Court into one of original, not appellate jurisdiction.”
Coale, 2009 Tex. App. LEXIS 8976 at *2; see also SEI Business Systems, 803
S.W.2d at 841 (“The Court of Appeals is not a trier of fact. For us to consider
evidence for the first time, never presented to the trial court, would effectively
convert this Court into a court of original, not appellate jurisdiction.”) (internal
quotations omitted). Accordingly, the request for judicial notice should be rejected
by the Court. 11
11
It should also be noted that the deed Mr. Young attaches to his brief does not even contain the
Extended Property language from the Trundle deed on which he bases his whole case (“together
with that parcel of land being the extensions of the side lot lines of Lot 52 to the center line of
Big Sandy Creek”). See Appellant’s Appendix at Tab 8.
Page 17
B. Has Mr. Young proven that the Extended Property conflicts with either
Lot 140 (owned by TLS) or Lot 139 and the adjoining 1.4777 acre tract
(both owned by Trails End)?
Assuming Mr. Young could establish that he owns the Extended Property
despite his failure to offer his own deed into evidence at trial, much less the
complete chain of title going back to a common source, the next issue is whether
Mr. Young has proven that the Extended Property actually conflicts with the
properties owned by TLS and Trails End. Throughout his brief, Mr. Young
assumes that there is no dispute as to the meaning of “the center of Big Sandy
Creek” contained in the 1955 Trundle deed, referring to this language as
“unambiguous” and treating it as if it clearly establishes a conflict with the lots
owned by TLS and Trails End. However, the meaning of this language was a key
issue at trial, and the evidence established that the only reasonable interpretation
was that it meant the center of that portion of Big Sandy Creek between Mr.
Young’s Lot 52 and Lot 140 (the lot owned by TLS).
1. There is no conflict among the properties because the
Extended Property language was correctly interpreted to
mean the center of that portion of Big Sandy Creek in
between Lot 52 and Lot 140.
The trial court correctly found in Finding of Fact No. 16 that “[t]he
Extended Property does not conflict with Lot 139, Lot 140, the 1.4777-acre tract,
Page 18
or West Darleen Drive.” 12 This is because the meaning of the Extended Property
language in the Trundle deed was properly interpreted to mean the center of that
portion of Big Sandy Creek between Lot 52 and Lot 140. This is consistent with
what the Steger & Bizzell survey 13 shows to be the boundary, and this is what
Trails End’s expert (the only expert who offered testimony at trial), Mr. Herman
Crichton, testified was his interpretation as to the boundary of Mr. Young’s Lot
52.14
Significantly, Mr. Young offered no competing survey showing an
alternative boundary, nor did he offer any expert testimony that supports his
argument as to where the boundary should lie. In fact, Mr. Young has never
explained precisely where the boundary should be if the Court were to accept his
interpretation of the Extended Property language. This is yet another reason Mr.
Young failed to meet his burden of proof.15
In addition, the trial court’s interpretation of the Extended Property language
is supported by the testimony of Mr. Smith, the TLS representative 16 and grandson
of T.L. Smith, Jr. 17 For example, Mr. Smith testified that the area between Lot 52
12
See TLS Appendix at Tab 3 (Clerk’s Record at p.184).
13
Defendant’s Exhibit 20, included in TLS Appendix at Tab 1.
14
2 R.R. 162:10-163:2.
15
This also makes it impossible to “render judgment in favor of Young,” as he requests.
16
2 R.R. 212:10-12.
17
2 R.R. 213:20-21.
Page 19
and Lot 140 is a part of Big Sandy Creek.18 When examining the Travis County
Appraisal District maps that were admitted into the record,19 Mr. Smith explained
how those documents also referred to the area between the properties as “Sandy
Creek Arm,” which is also the same label used for the area of the creek where Mr.
Young apparently believes the extension language is referring. 20 Mr. Smith also
testified about the Steger & Bizzell survey, and how that survey showed the
centerline of the Sandy Creek Arm as the boundary between Lot 140 and Lot 52.21
Mr. Smith testified that the boundary shown on the survey was consistent with his
understanding of the boundary between Lot 140 and Lot 52. 22
The sole testifying expert at trial, Mr. Crichton, also testified that he
reviewed property records regarding adjoining lots in the area, specifically, Lots 53
and 54, and those lots contain the same extension language as the Trundle deed,
but there were platted lots between Lots 53 and 54 and the center of Sandy Creek
(that is, if “Sandy Creek” is interpreted as Mr. Young contends it should be, as
opposed to that part of the creek between Lot 52 and Lot 140). 23 In other words,
interpreting the disputed Extended Property language to mean the center of that
part of Sandy Creek that is located between Lot 52 and Lot 140 would not only
18
2 R.R. 218:20-22.
19
Defendant’s Exhibit 30 at TCAD 0007, included in TLS Appendix at Tab 2.
20
Id.; 2 R.R. 219:7-25.
21
2 R.R. 220:6-19.
22
2 R.R. 220:20-24.
23
2 R.R. 160:21-161:11.
Page 20
mean there is no conflict among Mr. Young’s property and Trails End’s and TLS’s
properties, but that interpretation would also harmonize neighboring property
boundaries and not create new boundary conflicts among property owners who are
not parties to this suit. 24
As for Mr. Young’s suggestion that the part of Sandy Creek between Lot 52
and Lot 140 somehow developed or appeared at some point after the 1947 plat,25
Mr. Young points to no evidence to support this claim. And in fact, the 1947 plat
does not even label what constitutes Big Sandy Creek (it refers to the main area of
the creek as Lake Travis), but it does depict the part of the creek running between
Lot 56 and Lots 52, 53, and 54. (Lot 56 was the lot that was eventually re-platted
in 1962 to create Lots 139 and 140). 26 Therefore, TLS and Trails End’s
interpretation does not conflict with the 1947 plat and it harmonizes neighboring
property boundaries, while Mr. Young’s interpretation would cause Lots 52, 53,
and 54 to cut across and conflict with platted properties (and this is true even prior
to the 1962 re-plat).
For all these reasons, the trial court was correct in finding that the Extended
Property does not conflict with Lot 139, Lot 140, the 1.4777-acre tract, or West
24
See TLS Appendix at Tab 1 (Defendant’s Exhibit 20); Appellant’s Appendix at Tab 2
(Plaintiff’s Exhibit 2 (1947 plat)); 2 R.R. 162:10-163:2.
25
See Appellant’s Brief at 20 (“Even if the development of a “gully” took place between the
period of 1947, when the legal plat was formed, the botched 1962 re-plat, and the surveys
performed in preparation for the case at bar . . . .”).
26
3 R.R. 60:8-13.
Page 21
Darleen Drive,27 and Mr. Young has not shown he is entitled to reversal on his
trespass to try title claims even if he had shown he owned and had superior title to
the Extended Property.
C. Response to Appellant’s Issue No. 1: Mr. Young’s claim that the 1962
plat is void as a matter of law fails for several reasons.
Finally, TLS will respond to Mr. Young’s argument that the trial court was
“barred as a matter of law from recognizing the botched 1962 re-plat” and that the
1962 re-plat is void as a matter of law. In support of this argument, Mr. Young
refers to TEX. REV. CIV. STAT. ANN. art. 974a, § 5, arguing that under this statute,
re-plats may not be authorized unless permission is obtained from all affected land-
owners.28 This argument fails for a number of reasons.
First, Mr. Young has waived any argument that the re-plat failed to comply
with this statute, as this argument was never presented to the trial court. See
Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc., 686 S.W.2d 351, 354
(Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (citing State of California
Department of Mental Hygiene v. Bank of Southwest National Association, 354
S.W.2d 576, 581 (Tex. 1962)) (“It is well settled Texas law that an allegation not
contained in the pleadings nor otherwise raised or proven in the trial court cannot
27
See TLS Appendix at Tab 3 (Clerk’s Record at p.184, Findings of Fact 16).
28
Within this issue, Mr. Young also makes the argument that T.L. Smith, Jr. could not convey
what he did not own. This argument, however, presumes that Mr. Young is correct as to the
interpretation of the Extended Property language. As discussed above, the record does not
support Mr. Young’s interpretation, but rather fully supports the trial court’s finding that there is
no conflict between the Extended Property and any of the property owned by TLS or Trails End.
Page 22
be raised for the first time on appeal.”). The first time Mr. Young ever made any
reference to this statute was in his initial brief.
Second, the statute on its face applies to “any tract of land situated within the
corporate limits of any city in the State of Texas.” 29 There is nothing in the record
or in Mr. Young’s brief establishing that the property at issue was within a city’s
corporate limits in 1962. Thus, Mr. Young has not shown that the statute even
applies to the property at issue.
Third, Mr. Young fails to offer any legal authority supporting his claim that
a failure to obtain approvals from affected landowners renders the re-plat “void as
a matter of law.” See Appellant’s Brief at 16; TEX. R. APP. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”) (emphasis added); Huey v.
Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.) (“Failure to cite
applicable authority or provide substantive analysis waives an issue on appeal.”).
Moreover, the plain text of the statute does not support Mr. Young’s contention, as
it provides that a re-plat “may be vacated . . . at any time before the sale of any lot
therein.”30
29
See Appellant’s Appendix at Tab 3, Sec. 1.
30
Appellant’s Appendix at Tab 3. Specifically, Section 5 reads: “That any such plan, plat or
replat may be vacated by the proprietors of the land covered thereby at any time before the sale
of any lot therein by a written instrument declaring the same to be vacated, duly executed,
acknowledged and recorded in the same office as the plat to be vacated, provided the approval of
the City Planning Commission or governing body of such city, as the case may be, shall have
Page 23
Fourth, Mr. Young is asking this Court to find the 1962 re-plat void, but Mr.
Young did not join any of the neighboring property owners whose property
interests would be directly impacted by that decision as parties in this case. See
TEX. R. CIV. P. 39.
And finally, even if the Court were to find that the 1962 re-plat were void as
a matter of law despite all these obstacles, that still would not mean that Mr.
Young prevails in his trespass to try title claims. Mr. Young still had to prove he
had superior title to the Extended Property, which he failed to do, and he would
have to show that the trial court’s interpretation of the Extended Property language
was incorrect, which he has not. As discussed above, the trial court was correct in
concluding that the Extended Property language in the Trundle deed refers to the
center of that portion of Big Sandy Creek located between Lot 52 and Lot 140,
such that there is no conflict between the Extended Property and any of the lots
owned by Trails End and TLS. 31
Accordingly, Mr. Young’s argument that the 1962 re-plat is void as a matter
of law is not only without merit, but it would not support reversal in any event.
been obtained as above provided, and the execution and recordation of such shall operate to
destroy the force and effect of the recording of the plan, plat or replat so vacated.”
31
For the same reason, Mr. Young’s argument that T.L. Smith, Jr. improperly attempted to re-
plat land already sold and conveyed to Sylvia Trundle also fails.
Page 24
D. Joinder in Trails End’s brief.
TLS hereby joins in and incorporates by reference the arguments made in
the initial brief of Trails End regarding Appellant’s remaining issues.
VI.
CONCLUSION AND PRAYER
Appellees TLS Properties Ltd. and TLS Operating Company, LLC
respectfully request that the District Court’s Final Judgment be affirmed in its
entirety, and that the Court grant all other relief to which they may be entitled.
Respectfully submitted,
/s/ Derek Quick
Derek Quick
State Bar No. 24072471
STRASBURGER & PRICE, LLP
720 Brazos Street, Suite 700
Austin, Texas 78701
512.499.3600
512.499.3660 – fax
derek.quick@strasburger.com
ATTORNEYS FOR APPELLEES TLS
PROPERTIES, LTD. AND TLS
OPERATING COMPANY, LLC.
Page 25
RULE 9.4 CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains
5,335 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).
/s/ Derek Quick
Derek Quick
Page 26
CERTIFICATE OF SERVICE
This is to certify that on this 22nd day of May, 2015, a true and correct copy
of the above and foregoing document was electronically mailed to the parties
registered or otherwise entitled to receive electronic notices in this case pursuant to
the Electronic Filing Procedures in this Court upon:
Stephen Casey Christopher R. Mugica
Casey Law Office, P.C. cmugica@jw.com
595 Round Rock West Drive Emilio B. Nicolas
Suite 102 enicolas@jw.com
Round Rock, Texas 78681 Jackson Walker L.L.P.
stephen@caseylawoffice.us 100 Congress Avenue, Suite 1100
Counsel for Appellant David Young Austin, Texas 78701
Counsel for Appellees Trails End
Homeowners Association And Van
Keene
W. Thomas Buckle Rick Durapau, Pro Se
Jeff Tippens 11907 Misty Brook Drive
State Bar No. 24009121 Austin, Texas 78727
Scanalan, Buckle & Young, P.C. rdurapau@gmail.com
602 West 11th Street Pro Se Appellee
Austin, Texas 78701
tbuckle@sbylaw.com
jtippens@sbylaw.com
Counsel for Appellee Trails End
Homeowners Association, Inc.
/s/ Derek Quick
Derek Quick
1647385.5/SPA/11351/0105/052215
Page 27
NO. 03-14-00535-CV
__________________________________________________________
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
__________________________________________________________
DAVID YOUNG
Appellant
vs.
TRAILS END HOMEOWNERS ASSOCIATION, INC.; TLS PROPERTIES,
LTD.; TLS OPERATING COMPANY, LLC; VAN KEENE; AND RICK
DURAPAU
Appellees
On Appeal from the 200th Judicial District Court of Travis County, Texas
(Honorable Scott H. Jenkins, of the 53rd Judicial District Court, Presiding)
Trial Court Cause No. D-1-GN-10-003864
__________________________________________________________
APPELLEES TLS PROPERTIES, LTD. AND
TLS OPERATING COMPANY, LLC’S
APPENDIX
__________________________________________________________
Derek Quick
State Bar No. 24072471
STRASBURGER & PRICE, LLP
720 Brazos Street, Suite 700
Austin, Texas 78701
512.499.3600
512.499.3660 – fax
derek.quick@strasburger.com
ATTORNEYS FOR APPELLEES
TLS PROPERTIES, LTD. AND TLS
OPERATING COMPANY, LLC
APPENDIX
1. Steger & Bizzell Survey (Defendants’ Ex. 20).................................. Tab 1
2. TCAD Map (excerpt from Defendants’ Ex. 30)................................ Tab 2
3. Copy of Findings of Fact and Conclusions of Law............................ Tab 3
Defendants' Exhibit 20
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TRAVIS CENTRAL APPRAISAL DISTRICT
IIOARD OFFICERS BOARD MEMBERS
KICIIARO LA VlrDavid Young v. Trails End Homeowners Association, Inc. TLS Properties, Ltd. TLS Operating Company, LLC Van Keene And Rick Durapau
Combined Opinion