September 24, 2015
CAUSE NO C2015-0215A
03-15-00513-CV
In the
Third Court of Appeals
In Austin, Texas
Elwyn D. Shumway
v.
Whispering Hills of Comal County, Texas
Property Owners Association, Inc.
Original Proceedings from the 22nd Judicial District Court
The Honorable Dibrell Waldrip
Appellant's Brief on the Merits
Elwyn D. Shumway
8406 Zodiac
Universal City, TX 78148
(210) 658-7716 Home
(210) 860-6613 Cell
shumd@att.net
Pro Se Litigant
APPELLANT'S BRIEF
Page
IDENTITY OF PARTIES AND COUNSEL 1
TABLE OF CONTENTS 2
INDEX OF AUTHORITIES 3
STATEMENT OF THE CASE 5
STATEMENT REGARDING ORAL ARGUMENTS 6
ISSUES PRESENTED 7
STATEMENT OF FACTS 8
SUMMARY OF THE ARGUMENT 12
ARGUMENT 13
PRAYER 29
APPENDIX 30
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellant Procedure 38.1(a),
Appellant presents the following list of all parties and
names and address of its counsel:
Appellant/Plaintiff: Pro Se Litigant:
Elwyn D. Shumway Elwyn D. Shumway
8406 Zodiac
Universal City, TX 78148
(210) 658-7716 Home
(210) 860-6613 Cell
shumd@att.net
Respondent:
The Honorable Dibrell Waldrip
433rd Judicial District
Comal County, Texas
150 N. Seguin, Suite 317
New Braunfels, TX 78130
Appellee/Defendant: Counsel:
Whispering Hills of Comal Mr. Zachary B. Aoki
County Property Owners State Bar No. 01275870
Association, Inc. Thurman & Phillips, P.C.
8000 IH 10 West, Ste. 1000
San Antonio, TX 78230
(210) 341-2020
zaoki@thurman-phillips.com
TABLE OF CONTENTS
Page
1. Subject Matter: Statute of Limitations 19
Did appellee provide conclusive proof appellant
filed petition outside the period of limitations?
2 . Subject Matter: An Actual Controversy 13
When did an actual controversy between parties
come into being?
3. Subject Matter: Authority and Opportunity to
file a claim 16
When did Appellant first have authority and
opportunity to file a claim?
4. Subject Matter: Legal Injury Rule 25
When did appellant incur a legal injury and harm?
5 . Subject Matter: Trial Court Error 12, 25
Did trial court err in granting motion to dismiss
based on matter of law?
INDEX OF AUTHORITIES
(alphabetically)
Pages
Diversicare Gen. Partners, Inc. v. Rubio 26, 27
185 S.W. 3d 843, 846 (Tex 2005)
Groggin v. Grimes 969 S.W. 2d 135-137 Tex 19
App. - Houston 14th Dist 1998
KPMG Peat Marwick v. Harrison County Hous 19, 20
Fin. Corp., 988 S.W. 2d 748 (Tex 1999)
Murphy v. Honeycutt 199 S.W. 2d 298, 299 Tex 13, 15
Civ App. Texarkana 1946
Provident Life & Accident Ins. Co. v. Knott, 16
128 S.W. 3d 211, 221 (Tex. 2003)
Schneider Nat'l Carriers Inc., v. Bates 147 27
S.W. 3d 264, 274-5 (Tex. 2004)
Shaw v. Moss 67 S.W. 3d 836, 842 (Tex. 2001) 12, 20
S.V. v R.V. , 933 S.W. 2d at 4 (Tex. 1996) 19
Tex. Civ. Prac & Rem Code Section 16.051 19
Tex. R. Civ. P. Rule 91a. 1 and 91a.2 25
Tex. R. Civ. P. Rules 801(e) (2) and 802 26
Trail Enters, Inc. v. City of Houston 957 19, 20
S.W. 2d 265, 631 Tex App - Houston 1997
Villarreal v. Wells Fargo Brokerage 12, 19, 20
Services, LLC, 315 S.W. 3d 109, 117 Tex
App - Houston 1st Dist 2010
STATEMENT OF THE CASE
Nature of the Case: Appellant filed a petition seeking
a declaratory judgment regarding the intended/authorized
use (residential vs. business) of some lots in appellee's
subdivision (CR 1 original, CR 4 amended, CR 8 second
amendment). The appellee filed a Motion to Dismiss (CR 6)
and following argument regarding statute of limitations the
Presiding Judge granted the request for dismissal (Tab 1
and CR 9). The specific basis for dismissal is statute of
limitations has run (3RR, pg 59, lines 5-6). Appellant
believes the Presiding Judge erred in making his decision
to dismiss and filed a Notice of Appeal (CR 10).
Respondent: The Honorable Dibrell Waldrip, 433rd Judicial
District Court, New Braunfels, Texas.
Respondent's Action: On July 22, 2015, the respondent
signed an Order Granting Defendant's Request for Motion to
Dismiss. The signed order provides that the plaintiff take
nothing, that fees be assessed and that the order finally
and completely disposes of all claims. The order does
state the order may be appealed (Tab 1 and CR 9).
STATEMENT REGARDING ORAL ARGUMENT
The decision by the trial judge was made based on the
matters in record at the time he made his decision. The
appellant believes the Court of Appeal's review should be
limited to the same and that it would be inappropriate to
attempt to further explain the matters in record by
additional oral argument. The appellant waives oral
argument on appeal.
ISSUES PRESENTED
#1 Did the court properly give appropriate credibility and
weight to the evidence in record in determining when an
actual controversy first existed?
#2 Did the court properly give appropriate credibility and
weight to when appellant first had authority and an
opportunity to file a claim?
#3 Did the court properly determine the appellee
conclusively proved the date the statute of limitations was
to begin and that the appellant filed its petition outside
the applicable limitation period?
#4 Did the court in considering the total record regarding
statute of limitations give appropriate credibility and
weight to the evidence presented and properly interpret and
apply the pertinent legal principles as is required as a
matter of law or did the court err in making a judgment to
grant dismissal?
STATEMENT OF FACTS
This appeal is not based on the merits of the cause of
action in petition. The Presiding Judge was specific that
he ruled to dismiss the case because the statute of
limitations has run (3RR, pg 58, lines 6-25 and pg 59 lines
1-6). As a result, this appeal only addresses matters
pertaining to limitations. (Note: All the exhibits are
the same for the original, the amended, and the second
amendment to petition. To avoid duplication in the records
for this appeal, the exhibits are included only once and
are with the amended petition (CR 4).
Appellant holds title to two lots in the appellee's
subdivision. Ownership is documented by a Warranty Deed
that was recorded on October 15, 1984 (CR4, Exh 2). The
deed restrictions attached to the deed state all lots are
to be used for residential except those designated for
business purposes and that those designated for business
can be used for either business or residential. (CR 4,
enclosure to Exh 2. A more legible extract of deed is at
Tab 5.) There are no designations on the subdivision plat;
however, appellant, as well as other owners of lots 1-8,
are certain the lots were marketed and sold as commercial
or residential lots. It is not known when appellant first
learned there were no designations on the subdivision plat,
but it has been for several years.
8
Sometime between late 2011 and 2014, appellant was able
to obtain for the first time some documentation to support
that it was the developer's intent lots 1-8 could be used
for either commercial or residential. (3RR, pg 27 lines
24-25 and pg 28, lines 1-14). Based on this documentation
(CR 4 Exh 7 and 9) on November 13, 2014, appellant for the
first time requested appellee agree lots could be used for
business as well as residential. (3RR, pg 28 lines 15-21
and pg 29 lines 1-10. Also Tab 7.) Note: This letter was
presented to the court and referenced to in the July 14
hearing but it is not listed as an exhibit in record.) The
appellee denied request dismissing the written letters as
oral testimony that was irrelevant and stated they could
not make any deed changes (CR 4, Exh 2). (Note: Appellant
has never asked that the deed restrictions be changed, only
that based on credible evidence of the developer's intent
that the records at the county records office reflect lots
could be used for business as well as residential.) On
January 2, 2015, appellee notified appellant that appellee
had diligently strived to interpret the meaning of what the
writers of the Lakecroft restrictions intended and had
concluded that all lots in the subdivision shall be
classified as residential lots (CR 4, Exh 8, pg 2) . On
January 14, 2015, appellee filed a dedicatory instrument
stating all lots in the subdivision are strictly limited to
single family residential use only. Copy of the instrument
is the enclosure to Exh 8, CR 4 and proof of filing is at
Tab 6).
9
On February 10, 2 015, appellant filed a petition
requesting a declaratory judgment regarding the use of the
properties (CR 1). Service was attempted but petition was
returned as unclaimed on March 17 (CR 3). On April 13,
appellant amended petition to change the address for
service from the appellee's official address to the address
of the President of the Homeowners Association (CR 4) and
citation was served on April 22(CR 5). On May 28, appellee
filed a Motion to Dismiss (CR 6). Appellant responded on
June 4 (CR 7), and a hearing was held on June 17 (2RR).
At the June 17 hearing, the three issues in the motion
to dismiss (legal standing, statute of limitations and
cause of action) were considered. With regard to the third
issue, the Presiding Judge offered the appellant the
opportunity to rewrite the cause of action, amend the
petition and to continue the hearing at a later date (2RR,
pg 43 lines 3-9). Accordingly, a second amendment was
filed on July 7 (CR 8).
On July 14, the second hearing was held (3RR). The
appellee asked that the issue of limitation be discussed
again. Appellant indicated he thought that the issue of
limitations had been considered and that the July hearing
was to consider the rewritten cause of action (3RR, pg 12,
lines 19-25). The Presiding Judge stated he had not yet
ruled on limitations. Arguments were presented regarding
limitations and without discussion of the essential
elements of the rewritten cause of action (promissory
10
estoppel) the Presiding Judge concluded the hearing by
deciding, as a matter of law, to dismiss the case as
limitations had run (3RR, pg 58 lines 6-25 and pg 59 lines
1-9). On July 22, 2 015 the Presiding Judge signed the
order dismissing the case (CR 9) and on August 14, 2015,
appellant filed a Notice of Appeal (CR 10).
11
SUMMARY OF THE ARGUMENT
The trial judge erred in granting appellee's Motion to
Dismiss. Appellee was required to provide conclusive proof
of the date the four year statute of limitations was to
begin and then prove appellant filed his petition outside
the period of limitations. (Shaw v. Moss 67 S.W. 3d 836,
842 Texas 2 001 and Villarreal v. Wells Fargo Brokerage
Services, LLC 315, S.W. 3d 109, 117 (Tex. App - Houston 1st
Dist. 2010). Appellant provided credible evidence that
appellee did not do so and the trial judge erred in
concluding that he did.
The trial judge's decision to dismiss is not supported
by factually sufficient evidence and the trial judge did
not properly interpret and apply pertinent legal principles
and case law as is required as a matter of law (Tab 8). In
considering all the evidence in the record the court had to
consider, the evidence is so against the greater weight and
preponderance of the evidence that the court's decision to
grant dismissal is clearly wrong and unjust. For this
reason, the motion to dismiss should be reversed and the
case remanded to the trial court for a hearing on the
merits of the case.
12
ARGUMENT
The appellant's argument is based on conclusions
reached from the information provided in the following four
Issues Presented.
Did the court properly give credibility and weight to
the evidence in record in determining when an actual
controversy first existed? (Issue Presented #1)
A cause of action under the Declaratory Judgment Act
does not accrue until there is an actual controversy
between the parties. Until an actual controversy has arisen
between parties, no cause for declaratory relief has
accrued and the statute of limitations is not operative.
(Murphy v. Honeycutt 199 S.W. 2d 298,299 (Tex Civ App. -
Texarkana 1946 writ ref'd.) "An actual controversy" is a
constitutional requirement that there be a real dispute
between two parties capable of being resolved by the court.
Controversy is defined as an actual dispute between
individuals who seek a judicial resolution of their
grievances that have arisen from a conflict of alleged
legal rights - a dispute that must be an actual contested
issue in order to be heard by the court. (Tab 10) .
Appellant had contacted a sales representative (Mr.
Bepko), who worked for the developer (Lakecroft, Inc.), and
who sold appellant his properties and told him the
homeowners association was of the opinion lots could not be
used for business. Appellant asked Mr. Bepko if he had any
documentation, marketing information, maps, etc. to support
13
appellant's knowledge that the lots were sold as business
or residential. Mr. Bepko stated in a letter he was aware
of a disagreement between the owners of lots 1-8 and the
homeowners association (CR 4, Exh 7). In the motion to
dismiss, appellee refers to this statement as a dispute (CR
6) and again in hearing (2RR, pg 9, lines 12-15). Also, in
the July 14 hearing, appellee stated appellant and appellee
were fighting over the use of property back in 2 010 (3RR,
pg 29 line 24 to line 5 pg 30). This is not true.
In the June 14 hearing, appellant described the nature
of the correspondence between appellant and appellee (2RR,
pg 20, line 12 to line 5 pg 22) and again at the July 14
hearing (3RR, pg 48 lines 13-25). The appellee did not
provide any evidence to support the allegation of fighting
or any examples of controversial statements being made by
the appellant outside the period of limitations.
In correspondence between appellant and appellee,
opinions were expressed and correspondence from appellee
normally included words to the effect that it is our
opinion ... (see examples CR 4 Exh 2 and 4). While the
appellant and appellee's views may have differed, neither
party was being harmed. However, when appellant's request
to permit lots to be used for business or residential was
denied on December 1, 2 014 (CR 4, Exh 2) and further
confirmed by letter of January 2, 2014 (CR 4, Exh 8) then
an actual controversy came into being. That controversy is
evidenced by the affidavit filed by appellant on January 8,
14
2015 (CR 4, Exh 12). In dialogue between appellee and the
Presiding Judge, the Presiding Judge concluded that "the
potential existence of a factual controversy" was
established by the date Mr. Bepko wrote, or purportedly
wrote, his letter (3RR, pg 51, line 19 to line 4, pg 52).
The date of the letter is July 7, 2010. Appellant strongly
disagrees with this reasoning and conclusion. As cited in
the opening paragraph above (Murphy v. Honeycutt), there
must be "an actual controversy" between the parties. The
"potential existence of a factual controversy" based on a
letter signed by a person not a party to the case who used
the term "disagreement" falls short of being "an actual
controversy" as appellant believes is envisioned by legal
precedent, rules and/or case law. An additional
consideration is that as appellant explains in the next
issue presented regarding an opportunity to file a claim
(Issue Presented #2) the appellant did not have possession
of the Mr. Bepko's letter until sometime within the period
of limitations - at the earliest January 25, 2012.
In conclusion, appellant contends the Presiding Judge
erred in concluding that "the potential existence of a
factual controversy" is the same as "an actual
controversy". Further, appellant contends the court did
not give appropriate credibility and weight to appellant's
argument that while there may be differing views and
opinions they did not rise to being an actual controversy
until within the limitation period.
15
Did the court properly give appropriate credibility and
weight to when the appellant first had authority and an
opportunity to file a claim? (Issue Presented #2)
Causes of action accrue when claimants are on notice of
their injury and have an opportunity to seek a judicial
review. (Provident Life & Accident Ins. Co. v. Knott, 128
S.W. 3d 211, 221 Tex 2003). Generally, a cause of action
accrues and limitations begin to run when facts come into
existence that authorize a party to seek a judicial remedy.
(Provident Life & Accident Ins. Co. v. Knott as above).
It is not known when appellant first became aware but
appellant has known for several years (more than four) that
the developer did not make any property use designations on
the subdivision plat. Appellant also knew for certain that
his lots, and others included in lots 1-8, were advertised
and sold for business use and could be used for either
business or residential. However, during the period
earlier than four years before filing a claim, appellant
did not have any documentation, supporting evidence or
facts sufficient to provide grounds to authorize him or
provide an opportunity to seek a judicial remedy. It would
have been folly to file based only on personal knowledge
without some supporting documentation.
In the motion to dismiss, the appellee cites a letter
dated July 7, 2 010 signed by Mr. Bepko, a salesman for the
developer, that he (Mr. Bepko) was aware there was a
disagreement between appellant and appellee as evidence
16
that more than four years has expired since the dispute
first arose (CR 6, Section II) . At the July 14th hearing,
appellant explained that he did not have possession of that
letter until sometime in late 2011 to 2013 when appellant
visited Mr. Bepko and Mr. Bepko then gave him the letter.
Appellant had visited Mr. Bepko at his home following a
medical appointment appellant had at a facility located
about ten miles from Mr. Bepko's residence. (Note: At the
time of the hearing, appellant did not know the exact dates
of the medical appointments. Medical records have since
been reviewed. The first of four appointments was on
January 25, 2012. Other dates are February 25, 2012, May
14, 2 013 and November 5, 2 014.) During the visit, the
ailing Mr. Bepko gave appellant the letter (CR 4, Exh 7) he
had intended to mail and apologized for not doing so. The
detailed explanation referred to above is at 3RR, pg 27,
line 24 to line 14, pg 28.
In addition to Mr. Bepko's letter, during this time
frame appellant also obtained a letter from the owner of a
lot next to one of appellant's lots that was provided her
by the developer, Lakecroft, Inc. That letter states the
lot could be used for either residential or business. This
letter (CR 4, Exh 9) is dated June 13, 1988 which predates
the appellee taking stead of the subdivision in 1990. On
November 13, 2 014, these two letters were provided the
appellee with appellant's request that appellee agree lots
1-8 could be used for either business or residential (3RR,
17
pg 28, lines 15 to line 5, pg 29 and Tab 7). This letter
at Tab 7 was not in the written record provided the court
but was shown to the trial judge at the July 14 hearing to
confirm the date of appellant's request. The Bepko and
Lakecroft letters attached to the November 13, 2014 letter
are in record at CR 4, Exh 7 and 9).
At the July 14, 2015 hearing, appellant explained that
until he had some supporting documentation he did not have
authority for or an opportunity to file a request for a
judicial determination and that the earliest date he had
possession of necessary documentation was sometime within
the period of limitations (3RR, pg 27 lines 24 to lines 15,
page 28). (Earliest date is January 25, 2012). The
appellee did not contradict appellant's explanation. As a
result, the court should have taken appellant's explanation
as not being hearsay (Tab 3).
In conclusion, appellant contends the Presiding Judge
did not in making his decision properly give appropriate
credibility and weight to appellant's argument that he did
not have authority for or an opportunity to file a claim
until sometime within the limitation period.
18
Did the court properly determine the appellee
conclusively proved the date the statute of limitations was
to begin and that the appellant filed its petition outside
the applicable limitation period? (Issue Presented #3)
In petition, the cause of action is promissory estoppel
(CR 8, pg 3). The statute of limitations for promissory
estoppel is four years (Tex. Civ. Prac & Rem Code Section
16.051)(Tab 4). A statute of limitation begins to run on
the date of accrual and the date of accrual is the date the
cause of action accrues (Villarreal v. Wells Fargo
Brokerage Services, LLC, 315 S.W. 3d 109,117 (Tex App -
Houston [1 Dist] 2010). Because there is no statute that
defines the date of accrual for promissory estoppel, the
Legal Injury Rule is used to determine the accrual date.
(KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988
S.W. 2d at 750 and S.V. v. R.V., 933 S.W. 2d at 4 (Tex.
1996). The Legal Injury Rule provides that a cause of
action accrues when an act causes some legal injury. (S.V.
v. R.V., 933 S.W. 2d 1-4 (Tex 1996). A legal injury refers
to harm being caused by an infringement of a legal right
and is also defined as an abstract idea of what is due a
person by law (Tab 9). A legal injury consists of any
invasion to claimant's legally protected rights. (Groggin
v. Grimes, 969 S.W. 2d 135 137 Tex App - Houston [14 Dist]
1998.) Stated differently, a cause of action generally
accrues when facts come into existence which authorize a
claimant to seek a judicial remedy. (Trail Enters, Inc. v.
19
City of Houston, 957 S.W. 2d 265, 631 (Tex App - Houston
1997.)
A defendant moving for a motion to dismiss on the
affirmative defense of limitations must conclusively prove
the elements of the defense (Shaw v. Moss 67 S.W. 3d 836,
842 (Tex. 2001); also KPMG Peat Marwick v. Harrison County
Hous. Fin. Corp., 988 S.W. 2d 748 (Texas 1999). Thus a
defendant must prove as a matter of law the date on which
the limitation period commenced and that the plaintiff
filed its petition outside the applicable limitation period
(Villarreal v. Wells Fargo Brokerage Services, LLC, 315
S.W. 3d 109, 117 (Tex App - Houston [1 Dist] 2010, no pet).
Also, KPMG Peat Marwick v. Harrison County Housing Finance
Corp., 988 S.W. 2d 748 (Tex 1999).
In Section II of the motion to dismiss (CR 6), the
defendant (appellee) states plaintiff (appellant) knew no
lots were designated on the subdivision plat and the
question of use has been an issue for more than four years.
Appellee refers to a letter dated July 7, 2010 signed by
Mr. Stephen Bepko, a sales representative who worked for
the developer and sold plaintiff his lots, that he (Mr.
Bepko) was aware there was a disagreement between the
owners of eight lots facing State Highway 46 and the
Whispering Hills Property Owners Association. Defendant
states this letter conclusively establishes that four years
has expired since the dispute first arose and for that
reason the court should dismiss the suit. Further,
20
defendant states plaintiff's complaints date back to
actions taken by the Association more than fifteen (15)
years ago. This allegation is not true. (The Association
did not have stead of the subdivision more than fifteen
years ago.) Additionally, appellee states appellant's deed
states the property shall be used solely for new
residential purposes. This statement is incomplete and
misleading. Item 1 of the restrictions attached to
appellant's Warranty Deed reads "all tracts shall be used
solely for residential purposes except those designated for
business..'7 Item 2 also refers to tracts designated as
business may be used for either residential or business..".
(CR 4, Exh 2. A more legible excerpt from the deed is at
Tab 5) .
As explained in the Issue Presented #2, appellant did
not have possession of the Bepko or Lakecroft letters (CR
4, Exh 7 and 9) earlier than January 25, 2012. On November
13, 2014, appellant sent a letter with the two letters
attached and for the first time requested the appellee
agree to having document(s) reflect that lots 1-8 may be
used for either commercial or residential purposes. (Tab
7). On December 1, 2015, appellee denied the request and
provided the rational for its decision in a letter dated
December 1, 2015 (CR 4, Exh 2). The December 1, 2015
denial of request was followed by appellee's letter dated
January 2, 2015 providing appellant notice that appellee
had strived to interpret the meaning of what the writers of
21
the deed restrictions intended and had concluded that all
lots shall be used solely for residential purposes.
Appellee also stated the Board of Directors would adopt
this conclusion at a January 13, 2015 meeting (CR 4, Exh 8,
pg 2). Appellant objected and requested such action not be
taken until a judicial determination could be made (CR 4,
Exh 11 and 12). Appellee filed the dedicatory instrument
on January 14, 2015 (Tab 6). Appellant contends the
decision to dismiss the two written documents (the Bepko
and Lakecroft letters) as irrelevant oral testimony was the
beginning of what became an actual controversy which
materialized when appellee filed the dedicatory instrument
on January 14, 2015.
Appellant also contends it was at this time appellee
committed an unjust and wrongful act resulting in a legal
injury and harm (CR 7, pg 6. Also see Tab 9 for legal
injury defined). Harm is caused because appellant would no
longer have an opportunity to convince appellee of the
developer's intent for authorized use of property resulting
in the value of the properties being substantially reduced
as the lots, as described in CR 8, pg 2, para 5, are not
suitable for residential purposes.
As previously indicated, the appellee stated the Board
of Directors has tried to determine the developer's intent
(CR 4, Exh 8, pg 2). Appellant provided an authoritative
letter from the developer stating one of the lots in
question could be used for either residential or business
22
(CR 4, Exh 9). The appellant also provided a credible
letter from the developer's employee who sold the lots to
appellant clearly stating the same (CR 4, Exh 7) but
appellee chose to dismiss these letters as irrelevant oral
testimony (CR 4, Exh 2). Appellee also stated they had no
authority to make changes to a deed but appellant never
asked that any deed restriction be made. When appellee
notified appellant that a decision was made that all lots
shall be classified as residential lots and a dedicatory
instrument would be filed stating the same (CR 4, Exh 8),
appellant requested a decision by a court before doing so
(CR 4, Exh 10, 11, 12). Appellee, without answer back,
filed the dedicatory instrument on January 14, 2015 (Tab
6). For the reasons above, appellant believes the
appellee's actions, based on rational provided in CR 4, Exh
2 and 7, constitutes a wrongful act resulting in a legal
injury and harm as it infringes on his perceived right to
use the properties for either business or residential.
Appellant's response to appellee's request to dismiss
for the reason of limitations is provided at pages 4 to top
of page 7 of CR 7. The response argues January 14, 2015
should be the date limitation begins and at the June 17,
2015 hearing appellant argued the same (2RR, pg 21 lines
17-24). At the July 14 hearing, appellant again argued
that it was necessary that a specific date the statute of
limitations begins needed to be established. Appellee
stated (contrary to the July 7, 2010 date cited in the
23
motion to dismiss) that the date of legal injury was
October 15, 1984 when appellant received his deed (3RR, pg
41 line 4 to line 4, pg 43). (Note: The last word in line
1 of pg 2, 3RR transcription should read confident not
competent.) Appellant disagrees as he had no knowledge the
developer had failed to annotate the plat at that time.
Also, for the reasons contained in the Items Presented #1
and Items Presented #2, appellant contends the October 15,
1984 date is not the "date certain" that is required to be
conclusively proven. Appellant, at that time, did not know
the developer did not make any property use designations on
the plat; there was no actual controversy; and the
appellant did not have any documentation to authorize or
have an opportunity to file a claim. Alternatively,
appellant argues he has provided reasonable justification
that the date of accrual should be the date appellee filed
a dedicatory instrument (January 14, 2015) and that date is
the date limitations should begin.
In conclusion, appellant contends the Presiding Judge
did not, as a matter of law, in making his decision
properly apply the relevant legal principles and case law
in concluding that the appellee conclusively proved the
date of accrual i.e., the date limitations is to begin, and
that the appellant filed petition outside the four year
limitations period.
24
Did the court in considering the total record regarding
statute of limitations give appropriate credibility and
weight to the evidence presented and properly interpret and
apply the pertinent legal principles and case law as is
required as a matter of law or did the court err in making
a judgment to grant dismissal? (Issue Presented #4)
The motion to dismiss was granted under rule 91a of the
Texas Rules for Civil Procedures. Under this rule, a
determination by the court can be made as a matter of law
or as a matter of fact or both (Tab 2). In this case,
after considering the facts regarding statute of
limitations, the court ruled the statute of limitations has
run. The Presiding Judge specifically stated the decision
was made as a matter of law (3RR, pg 58 lines 6 to line 10,
pg 59).
At the June 17, 2015 hearing, the issue of legal
standing was resolved by agreement; the issue of
limitations was argued; and the cause of action was
discussed. After the discussion of the cause of action,
the Presiding Judge offered to extend the hearing to
provide appellant an opportunity to consult an attorney and
rewrite the cause of action (2RR, pg 43, lines 3-9). This
was done; a second amendment to petition was filed (CR 8);
and a hearing was set for July 14, 2015. At the July 14th
hearing, the Presiding Judge stated he had not read the
amended petition and asked if appellee had. The appellee
said he had but did not amend his motion because he thought
25
that limitations still bars consideration (3RR, pg 6, line
7 to line 8, pg 7). Following arguments on limitations the
Presiding Judge concluded the hearing by deciding to grant
appellee's motion to dismiss. There was no discussion of
the essential elements of the rewritten cause of action.
A key factor for the court to have considered is
whether or not the appellant's explanation of when he first
possessed supporting documentation to justify filing a
claim was credible or hearsay. Rule 801(e)(2)(B) of the
Texas Rules for Civil Procedures states that a statement is
not hearsay if it is one the party manifested that it
adopted or believed to be true (Tab 3). Appellant knows it
is true. Additionally, the contents of the letter from Mr.
Bepko (CR 4, Exh 7) should not be considered hearsay
because it is a statement made by a salesman who
represented the developer. Further, in accordance with
Rule 802, Tex. R. Civ. Proc., even if the court were not
convinced by the above, inadmissible hearsay admitted
without objection may not be denied probative value merely
because it is hearsay (Tab 3). The appellee did not object
to appellant's explanation or the contents of Mr. Bepko's
letter.
The appellee contends limitations have expired and the
case should be dismissed. When a movant establishes that
the statute of limitations bars the action, the nonmovant
must then adduce proof raising issue in avoidance of the
statute of limitations (Diversicare Gen. Partners, Inc. v.
26
Rubio 185 S.W. 3d 843, 846 (Tex 2005). In the #1, 2 and 3
Issues Presented, the appellant has provided sufficient
evidence to prove: (1) the time when an actual controversy
came into existence; (2) the time when appellant first had
an opportunity to file a claim; and (3) the date of legal
injury i.e. the date of accrual and the date limitations is
to begin. All occurred within the four years before
appellant filed his petition and are matters included in
the record the court had for consideration before making a
decision.
The determination of the date on which a cause of
action accrued is a question of law for the court.
(Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W. 3d 264,
274-5 (Tex 2004) . In making a decision, as a matter of
law, the court is to make a decision based on statutes,
rules of evidence and procedure, and the body of relevant
case law (Tab 8).
As previously cited, as a matter of law, a party
claiming limitations as an affirmative defense must
conclusively prove the date limitations began and that the
petition was filed outside the limitation period. The
appellee's motion to dismiss (CR 6 Section II) stating that
the question of use of lots has been an issue for more than
four years and citing a letter a salesman signed dated July
7, 2 010 that he (Mr. Bepko) was aware there was a
disagreement between the owners of lots 1-8 and the
homeowners association does not conclusively prove the date
27
of accrual i.e., the date limitations is to begin.
Additionally, the statement that "in fact, his complaints
date back to action taken by the Association and its
representatives more than fifteen (15) years ago" is not
supported in the record and is not true. Alternatively,
the appellant provided necessary explanations to show that
the date limitations should begin occurred within the
period of limitations.
In conclusion, appellant firmly believes the court
erred in making the decision to grant dismissal. The err
was made because the court did not give appropriate
credibility and weight to the evidence presented and did
not properly interpret and apply the pertinent legal
principles and relevant case law as is required as a matter
of law.
NOTE: The decision complained of has an injurious,
harmful effect on the appellant as it renders a verdict on
the merits of the petition without appellant having an
opportunity to have his petition considered by a court of
law. Taking away that right has a harmful effect on
appellant as well as other owners of lots 1-8 because with
the dedicatory instrument appellee filed January 14, 2015,
the owners are strictly restricted to using lots for
"single family residential use" only. The lots are not
suitable for that purpose hence seriously reducing the
value of the property.
28
PRAYER
l.The appellant respectfully asks the court of appeals to
reverse the trial court's decision to grant dismissal
and remand the case to the trail court for a judicial
determination as requested in petition.
2. Further, appellant respectfully asks the court to award
appellant the costs incurred in appealing this case to
include filing fees, costs for preparation of documents
and records for the court, and any other costs
considered by the court as appropriate.
&*^pS tfyM»*w+v~
29
CERTIFICATE
Reference Court of Appeal Number 03-15-00513-CV
Trial Court Case Number C2 015-0215A
The undersigned certifies that on /jT SEP lOl5~, a copy of
appellant's Brief was mailed to the counsel for the
Whispering Hills Comal County Property Owner's Association,
Inc. The mailing address used is:
Mr. Zachary B. Aoki
Thurman & Phillips, P.C.
8000 IH 10 West, Suite 1000
San Antonio, TX 78230-3870
YJUuy) £Ts4Li+*n u>
*3—
Elwyn D. Shumway, Appellant
CERTIFICATE OF COMPLIANCE
RE: COA #03-15-00513-CV
TRIAL COURT #C2015-0215A
I certify that the length of appellant's brief is less than
the 50 pages allowed by Section 9.4 (i) of the Texas Rules
of Appellant Procedures. See attached.
£e*t*f*d fryitAjAMtdtuL*^
Elwyn D. Shumway,
Pro Se Litigant
STATEMENT OF APPELLANT'S BILL OF COSTS
RE: COA #03-15-00513-CV TRIAL COURT #C2015-0215A
• FILING FEES - check #1051 $ 195.00
• PREPARATIONS OF DOCUMENTS $ 185.00
Gina Kygar - check #1053
• DOCUMENTS FROM DISTRICT COURT
Clerk of Court - check #1050 $ 42.25
Recorder - check #1049 $ 609.00
• COPY DOCUMENTS AND FILING OF DOCKETING
STATEMENT $ 17.62
• COST OF SERVICE (certified mail)
$3.94 + $9.03 $ 12.97
$1,061.84
3
ASSOCIATION, INC , COMAL COUNTY, TEXAS
ORDER GRANTING DEFENDANT WHISPERING HILLS OF COMAL COUNTY
PROPERTY OWNERS ASSOflatiqn. tn^s motion TO DISMISS
On July 14, 2015, the Court heard the Motion to Dismiss filed by Whispering Hills of
Comal County Property Owners Association, Inc., ("Defendant" or "Association"). Plaintiff
Elwyn D. Shumway appeared pro se. Defendant appeared by and through its attorney of record.
After hearing arguments on June@ 2015 and July 14,2015, the court finds that the Motion to
Dismiss should be GRANTED. The Court further finds that the Association incurred reasonable
and necessary attorney's fees associated with challenging the causes ofaction.
IT IS THEREFORE ORDERED that the Motion to Dismiss is granted and that Elwyn D.
Shumway take nothing.
IT IS FURTHER ORDERED that Elwyn D. Shumway shall pay to the Association
reasonable and necessary attorney's fees in the amount of$3375.
IT IS FURTHER ORDERED that all monies awarded to the Association shall bear interest
at the rate of 5% compounded annually from the date hereof until paid in full by Elwyn D.
Shumway.
All costs ofcourt shall be borne by Elwyn D. Shumway.
All relief not expressly granted herein is expressly denied. This order finally and
completely disposes ofthe claims ofall parties and is appealable.
4# i
Judge Presiding
SUBMITTED BY:
Zachary B. Aoki
State Bar No. 01275870
Thurman & Phillips, P.C.
8000 IH 10 West, Suite 1000
San Antonio, Texas 78230
Telephone: (210)341-2020
Facsimile: (210) 344-6460
Attorneysfor Defendant Whispering Hills of
Comal County Property Owners Association, Inc.
32
Dismissal Rule 91 a, Texas Rules for Civil Procedure
PREME COURT OF TEXAS
DISMISSAL RULE a withdrawal of the motion or an amended motion
directed to the amended cause of action.
New Rule 91a, Texas Rules of Civil Procedure:
(c) Except by agreement of the parties, the court must
91a. Dismissal of Baseless Causes of Action rule on a motion unless it has been withdrawn or
the cause of action has been nonsuited in accor
91a.l Motion and Grounds. Except in a case brought under dance with (a) or (b). In ruling on the motion, the
the Family Code or a case governed by Chapter 14 of court must not consider a nonsuit or amendment
the Texas Civil Practice and Remedies Code, a party not filed as permitted by paragraphs (a) or (b).
may move to dismiss a cause of action on the grounds
that it has no basis in law or fact. A cause of action has (d) An amended motion filed in accordance with (b)
no basis in law if the allegations, taken as true, together restarts the time periods in this rule.
with inferences reasonably drawn from them, do not
entitle the claimant to the relief sought. A cause of 91a.6 Hearing; No Evidence Considered. Each party is enti
action has no basis in fact if no reasonable person could tled to at least 14 days notice of the hearing on the
believe the facts pleaded. motion to dismiss. The court may, but is not required
to, conduct an oral hearing on the motion. The court
91a.2 Contents of Motion. A motion to dismiss must state may not consider evidence in ruling on the motion and
that it is made pursuant to this rule, must identify each must decide the motion based solely on the pleading of
cause of action to which it is addressed, and must state the cause of action, together with any pleading exhibits
specifically the reasons the cause of action has no basis permitted by Rule 59.
in law, no basis in fact, or both.
91a.7 Award of Costs and Attorney Fees Required. Except
91a.3 Time for Motion and Ruling. A motion to dismiss in an action byor against a governmental entity or a pub
must be: lic official acting in his or her official capacity or under
color of law, the courtmustaward the prevailing party on
(a) filed within 60 days after the first pleadingcontain the motion all costs and reasonable and necessary attor
ing the challenged cause of action is served on the ney fees incurred with respect to the challenged cause of
movant; action in the trial court. The court must consider evi
dence regarding costs and fees in determining the award.
(b) filed at least 21 days before the motion is heard; and
91a.8 Effect on Venue and Personal Jurisdiction. This rule
(c) granted or denied within 45 daysafter the motion is is not an exception to the pleading requirements of
filed. Rules 86 and 120a, but a party docs not, by filing a
motion to dismiss pursuant to this rule or obtaining a
91a.4 Time for Response. Any response to the motion must ruling on it, waive a special appearance or a motion to
be filed no laterthan 7 days before the dateof the hearing. transfer venue. By filing a motion to dismiss, a party
submits to the court's jurisdiction in proceedings on the
91a.5 Effect of Nonsuit or Amendment; Withdrawal of motion and is bound by the court's ruling, including an
Motion. award of attorney fees and costs against the party.
(a) The court may not rule on a motion to dismiss if, at 91a.9 Dismissal Procedure Cumulative. This rule is in addi
least 7 days before the dateof the hearing, the respon tion to, and does not supersede or affect, other proce
dent files a nonsuit of the challenged cause ofaction, dures that authorize dismissal.
or the movant files a withdrawal of the motion.
Comment to 2013 change: Rule 91a is a new rule
(b) If the respondent amends the challenged cause of implementing section 22.004(g) of the Texas Govern
action at least 7 days before the date of the hearing, ment Code, which was added in 2011 and calls for rules
the movant may, before the date of the hearing, file to provide for the dismissal of causes of action that have
872 Texas liarJournal • December 201 2 www.texasbar.com
33
Texas Rules for Civil Procedure Rules 801, 802
l%?nv*** ARTICLE Vm.
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(a) Statement "Statement" means aperson's oral or written verbal expression, or nonverbal
conduct that aperson intended as a substitute for verbal expression.
(b) Declarant "Declarant" means the person who made the statement.
(c) Matter Asserted. "Matter asserted" means:
(1) any matter a declarant explicitly asserts; and
(2) any matter implied by a statement, if the probative value of the statement as
offered flows from the declarant's belief about the matter.
(d) Hearsay. "Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers inevidence to prove the truth ofthe matter asserted in the statement.
(e) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(2) An Opposing Party's Statement The statement is offered against an opposing
party and: • rr &
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
Rule 802. The Rule Against Hearsay
Hearsay is not admissible unless any ofthe following provides otherwise:
• a statute;
• these rules; or
• other rules prescribed under statutory authority.
Inadmissible hearsay admitted without objection may not be denied probative value merelv
because it is hearsay. J
3+
Texas Civil Practices and Remedy Code Section 16.051
""""'" CIVlpRACTICEANDRaiEDIESCODECHAPTERiaLWrrAnONS
Acts 1997, 75th Leg., ch. 219, Sec. 3, eff. May 23, 1997.
SUBCHAPTER C. RESIDUAL LIMITATIONS PERIOD
Sec. 16.051. RESIDUAL LIMITATIONS PERIOD. Every action for
which there is no express limitations period, except an action for the
recovery of real property, must be brought not later than four years
after the day the cause of action accrues.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
35
Extract Appellant's Warranty Deed
251BC9
» 418f«337
STA.T8 OF TEXAS
COUNT* OF COMAL | iMowAu.marsrnoBiPKtKmi!
tflta
«SJ«ftU«r-«W*5n :.^:-:v:S^^:v:V::i!,,ii;;5.rJd|||-^
E. D. fiHOMWAy
24141 lisvinurur «dl«i "Grurt***"
<**tw « .e »^, .n * d» w,^ ^ . ^ m| , , ^
TKACT<»>. TWO <21and five (Si
WHISPERING HILLS
HBta**uuhmiMm
^tsrr
jfiggrfiRia.
ffVMVMgiiM
•fBvUtJ,
!• Uw una ri-jUirtth of *•> Ms* «n 353
may be subdivided un.ess written approva. is given by the GranTo" *£g&foTdSgn^ 'aSS'9nS " deSi9n6eS- N° ^
3. No building other than a single family residence containing no less than 1100 square feet exclusivP of nn»n n..^ u
carports and garages, and having not less than 25% of its erterior walkI™3 „TI ' exc us,Yf.°if °Pen porches, breezeways,
products shall be erected or constructedI or any residenSl,ta*!^£Z£££ k T7 ,B' bnck' rock' concrete or concrete
4. No improvements shall be erected or constructed on any tract nearer than fifty (50) fee. to the front property .ine nor nearer than five
3fr
Filing Document - Appellee's Dedicatory Instrument
January 14, 2015
FILED AND RECORDED
Instrument Number: 201506001653
Recording Fee: 50.00
Number Of Pages: 8
Filing and Recording Date: 01/14/2015 11:16AM
Deputy: KELLI JOHNSTON
I hereby certify that this instrument was FILED on the date and time stamped hereon and
RECORDED in the OFFICIAL PUBLIC RECORDS of Comal County, Texas.
':> *$$&& £ Bobbie Koepp, County Clerk
''•??} co0§>vV Comal County, Texas
NOTICE: It is a crime to intentionally or knowingly file a fraudulent court record or Instrument with the
clerk.
DO NOT DESTROY - Warning, this document is part of the Official Public Record.
3^
201506001553 Phcjov S
r
^^
«**
RESOLUTION PERTAINING TO
HOME BUSINESS, INCIDENTAL BUSINESS
OR NONRESIDENTIAL ACTIVITY
r\v IN THE
(^ WHISPERING HILLS SUBDIVISION
4
WHEREAS, the Board of Directors under the terms of the dedicatory instruments
governing the Whispering Hills of Comal County Property Owners Association, Inc. (the
"Association"), is charged with the responsibility of enforcing, by any proceeding at law or in
equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereinafter
imposed by the provisions of the Restrictions governing the community (the "Restrictions"): and
WHEREAS, under the terms of Restrictions governing the Whispering Hills Subdivision,
each tract in the 940 acre subdivision, known as Whispering Hills Subdivision in Comal County.
Texas ("Subdivision"), being Lots I through 543. according to plat recorded in Volume 4, Pages 20-
27. Plat Records of Corral County, Texas, subject to certain restrictions, assessments, restrictive
covenants, liens, easements and reservations contained in the instrument marked Exhibit "A"
(restrictive covenants"), the reference to which is made for all purposes, for the benefit of all
persons who shall own property in the Subdivision: lots located within same can only be used for
residential purposes; and
WHEREAS, the Association recognizes that, although the Restrictions state that a lot can
only be used for residential purposes, the non-overt, unobtrusive manner in which some businesses
may be conducted has changed since the original Restrictions were written: and
WHEREAS, the Association recognizes that the central concern arising from the
conducting of commercial business activity from a residence within the Whispering Hills of Comal
County Property Owners Association. Inc. relates to the external impact same may have to
neighboring properties both in terms of the exterior appearance of a residence as well as the
activities which emanate from the nonresidential endeavor, and
WHEREAS, the Association deems it to be in the best interest of the Association to adopt a
uniform manner of construing activities that will be deemed nonresidential in nature and. therefore,
in violation of the Restrictions in place for the Whispering Hills of Comal County Property Owners
Association. Inc.: and
WHEREAS, the Association deems it in the Association's interest to prepare and file a
policy resolution to illuminate to the residents of the Whispering Hills of Comal County Property
Owners Association. Inc. those nonresidential activities predetermined, based upon resident input
and historical perspective, to he a nuisance, noxious, or offensive to residents within the Whispering
It
1%
Hills of Comal County Property Owners Association, Inc. and to establish a parameter of rules
through which such activities will be curtailed; and
WHEREAS, the Board of Directors determined that adoption of such a policy would be
appropriate and in accordance with, inter alia, Tex. Bus. ORGS. CODE ANN. Section 2.101: and
BE IT RESOLVED THAT, in order to define the extent of and the manner in which the
Association will enforce the single family residential use restriction in place for the Whispering
Hills of Comal County Property Owners Association, Inc. by and through the provisions set forth in
the Restrictions on file for Whispering Hills of Comai County Property Owners Association, Inc..
the Association adopts the following policy resolution setting forth the parameter of acceptable
nonresidential activity conducted on lots located within the Whispering Hills Subdivision.
BACKGROUND
All Lots ("Lots") located within the Whispering Hills Subdivision are subject to Deed
Restrictions which run with the land and impose limitations on structures and homes located on the
Lots. The Restrictions control the type of constrjction, appearance, size and use of structures and
homes on the Lots. The intended purposes of ihe Restrictions are to (a) maintain the quality and
integrity of the community and (b) to sustain and enhance the investment homeowners have made in
their Lot and improvements.
The Associarton has defined the basis and extent to which it will enforce tne provision of the
Restrictions relatin.2 to single family residential use of Lots as set forth in Article I _A" the
Restrictions. The Association has determined that no Lots have been designated as commercial Lots
by Lakecroft Beach Estates, Inc. All Lots in Whispering Hills are strictly limited to "single family
residential use'' only, subject to the latitude grn-f.*i herein.
3°i
Appellant letter, November 13, 2014
f.O-Sox 5-fc * ' 0 I
9WW' ^ wHfeA ^ taw ^^WtrftuW <^
ohI^ UW jw W~d^ ^m^. ^vd^.^ ^ «Wc
Go
rVMV*^^4A4-«^5;. ^ ^.^m^ */***J*w Ate,
/WL/' ^^-t^^^^ X Wt-^aaW. ^^
67 r\??EL_LMT
Matter of Law
That which is determined or ascertained through the use of statutes, rules, court decisions, and interpretations of legal
principles.
In legal actions the term matter of law is used to define a particular area that is the responsibility ofthe court. Matter
of law is distinguished from matter offact. All questions concerning the determination of fact are for the jury, though a
judge may determine the facts if a jury trial is waived or is not permitted under the law.
The designation of matters of law to the judge and matters of fact to the jury did not develop, however, until the late
eighteenth century. Until that time a jury could exercise its judgment over matters of fact and law. Jury instructions,
which in modem law are technical and specific about which law to apply, were infonnal and general. Ajury was free to
accept the instructions, modify them, or ignore them completely.
By the middle of the nineteenth century, courts had acquired authority over matters of law and confined juries to
matters of fact. Commercial lawyers were particularly influential in bringing about this change, as greater judicial
control over matters of law helped produce a stable legal system in which business could prosper.
Today courts rule on all matters of law, including pretrial motions, trial objections to the introduction of particular
evidence ortestimony, proposed jury instructions, and posttrial motions. Their decisions are based on statutes, rules
of evidence and procedure, and the body of relevant case law.
When the facts in a civil action are not in dispute, one or both of the parties may request a court to make a Summary
Judgment. Summary judgment is purely a matter of law; the court accepts the relevant facts as presented by the
party opposing summary judgment and renders a decision based on the applicable legal principles.
Amatter of law can be the basis for an appeal, but generally a matter of fact cannot. Though an appeals court can
reverse a decision because of a mistaken matter of law, it will not reverse if the mistake did not affect the verdict.
This "harmless error" rule developed, in part, from the recognition that during a trial the court often must make
hundreds of decisions based on matters of law.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
MATTER OF LAW, pleading. That which goes in avoidance of a declaration or other pleading, on the ground that the
law does not authorize them. It does not deny the matter or fact contained in such pleading, but admitting them avoids
them. Bac. Ab. Pleas, &c. G3. Matter of law, is that which is referred to the decision of the court; matter of fact that
which is submitted to the jury.
ALaw Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
I Copyright ©2003-201 5 Farlex, Inc
Disclaimer
All content on this website, including dictionary, thesaurus, literature, geography, and other reference data
http://legal-dictionary.thefreedictionary.com/Matter+of+law U~ ~k U2
Legal Injury - defined
8/30/2015 Injury legal definition ofinjury
Injury legal definition of injury
http://legal-dictionary.thefreedictionary.com/injury
HI
injury f^^r
Injury
A comprehensive term for any wrong or harm done by one individual to another individual's body, rights, reputation, or
property. Any interference with an individual's legally protected interest.
A civil injury is any damage done to person or property that is precipitated by a breach of contract, Negligence, or
breach of duty. The law of torts provides remedies for injury caused by negligent or intentional acts.
An accidental injury is an injury to the body caused unintentionally. Within the meaning of Workers' Compensation
acts, it is an injury occurring in the course of employment.
One who is injured might be able to recover damages against the individual who caused him or her harm, since the
law seeks to provide a remedy for every injury.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
injury
n. any harm done to a person by the acts or omissions of another. Injury may include physical hurt as well as damage
to reputation or dignity, loss of a legal right, or breach of contract. If the party causing the injury was either willful
(intentionally causing harm) or negligent then he/she is responsible (liable) for payment of damages for the harm
caused. Theoretically, potential or continuing injury may be prevented by an order of the court upon a petition for an
injunction. (See: damages, negligence, injunction, injunctive relief)
Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
mjUry noun abuse, adversity, bane, breakage, damnum, deprivation, detriment, detrimentum, disservice,
harm, harmful act, hurt, ill treatment, impairment, incommodum, invasion of a legal right, loss, offense,
physscal hurt, prejudice, privation, violence, wrong
Associated concepts: accidental injury, cause of injury, commarative injury, compensable injury, contributory
negliience, direct injury, efficient cause, future injury, indirect injury, indivisible injury, injury to business, injury to
propprty, injury to reputation, intentional injury, irreparable innury, malicious injury, permanent injury, personal
injury, previous injury, proof of injury, res ipsa loquitur, serious innury suffered, wanton injury
Foreign phrases: Quid sit jus, et in quo consistit injuria, legis est definire.What constitutes right, and what injury, it is
the business of the lawto define. Non omne damnum inducit injuriam. Not every loss produces an injury. Neminem
laedit quijure suo utitur. He who stands on his own rights injures no one. Jus est norma recti; et quicquid est contra
normam recti est injuna. Law is the rule of right; and whatever is contrary to the rule of right is an innury. Melius est in
tempore occurrere, quam post causam vulneratum remedium quaerere. It is better to meet a thing in time, than to
seek a remedy after an injury has been inflicted. Prohibetur ne quis faciat in suo quod nocere possit alieno. It is
forbidden for anyone to do on his own property what may injure another's. Lex nemini facit innuriam. The law works
injury to no one. Paci sunt maxime contraria vis et injuria. Violence and injury are especially hostile to peace. Res
http://legal-dictionary.thefreedictionary.com/injury 7 / tW
Legal-Injury Rule Law & Legal Definition
«&' Legal injury rule is a principle that
a cause of action generally accrues
when a wrongful act causes some
legal injury. Therefore the statute
of limitations on a claim does not
begin to run until the claimant has
sustained some legally actionable
damage. For example, under the
legal-injury rule, contract claims
generally accrue when the contract
is breached. A breach occurs when
a party fails to perform a duty
required by the contract.
The two exceptions to the legal injury rule are: the discovery rule, and
fraudulent concealment. Under the discovery rule, an action does not accrue
until the plaintiff knew or in the exercise of reasonable diligence should
have known of the wrongful act and resulting injury. The rule postpones the
running ofthe statutory limitation period until such time as the claimant
discovers, or in exercising reasonable diligence should have discovered,
facts that indicate he has been injured. Under the fraudulent concealment
exception to the legal injury rule, accrual is deferred because a person
cannot be permitted to avoid liability for his actions by deceitfully
concealing wrongdoing until limitations has run. In such cases, the
limitations period is tolled until such time as the plaintiff learned of, or
should have discovered, the deceitful conduct or the facts giving rise to the
cause of action.
The doctrine was initially articulated by the Texas Supreme Court in
Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888).Under
the Texas legal injury rule, "a cause of action accrues when a wrongful act
causes some legal injury, even if the fact of injury is not discovered until
later, and even if all resulting damages have not yet occurred"Legal injury"
is defined as "an injury giving cause of action by reason of its being an
invasion of a plaintiffs right.[Best v. Exxon Mobil Corp., 2010 U.S. Dist.
LEXIS 27886 (S.D. Tex. Mar, 23,2010)]
wAn actual controversy" - defined
9/10/2015
Actual Controversy Law &Legal Definition
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Actual Controversy Law & Legal Definition
Actual controversy means a true legal dispute which leads to a genuine lawsuitnot merely a
hypothetical, theoretical, or speculative legal issue.
>
A case must consistof an actual disputebetween parties over their legal rightsthat remain in
conflictat the time the case is presented and must be a proper matter forjudicial
determination.
•
Federal courts, including the U. S. SupremeCourt, will only consider an "actual controversy.
Art. ITT, Section 2, Clause I of the U.S.Constitution impose a requirement that the United
States Federal Court shall not hear cases that do not pose an actual controversy. Actual
dispute is the actual dispute between adverse parties capable of being resolved by a court.
Courts must not hear unripe or moot cases. An actual dispute is one that can be legally
« resolved.
Dt'tinitiuii List Related Terms
Actual Contusion (Tr.ulcmailQ Tarns with 'Actual' or'Cuntn
Actual Conllia ot tnleresi AvUMl Ate fflaltt Carcl
Actual Cause Actual Allegiance
Actual Cash Value Insurance Actual Authority
Actual Cash Value Actual Bias
» Actual Controversy Actual Rnililv H-nni
Actual Damages Actual Cash Value
Actual Delaral Pgcaitniic Acltiiil Cash Value lu.sui-.mcc
Actual Delivery Actual Cams
Actual Delivery of Insurance Policy ActUiil Conflict of lulcrest
Actual Eviction Actual nmiu^ion (Trademark)
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