Frank M. Seliger v. Ethiopian Evangelical Church

                                                                           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?