Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/26/2015 2:10:18 PM JEFFREY D. KYLE Clerk CAUSE NO. 03-13-00698-CV THIRD COURT OF APPEALS 8/26/2015 2:10:18 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-13-00698-CV *1 ACCEPTED ^[6662975] CLERK ________________________________________ IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

________________________________________ D OREEN R UBIO ,

Appellant, v.

J AMIE W ALSH , E T AL .,

Appellees. ________________________________________ On appeal from the

53rd District Court of Travis County, Texas Cause No. D-1-GN-10-004125 ________________________________________ MOTION FOR REHEARING ________________________________________ Tracy J. Willi

State Bar No. 00784633 Willi Law Firm, P.C.

9600 Escarpment Blvd., Ste. 745, PMB 34 Austin, TX 78749-1983 Tel. (512) 288-3200 Fax (512) 288-3202 ATTORNEY FOR APPELLANT, DOREEN RUBIO *2 TABLE OF CONTENTS

INDEX OF AUTHORITIES ..................................................................................... ii

I. UNDER THE TEXAS “FAIR NOTICE” RULE, DOREEN

PROPERLY PLEADED PAROL SALE..................................................... 1 II. THE EVIDENCE SHOULD BE REVIEWED FOR FACTUALLY

INSUFFICIENCY AS WELL AS LEGAL INSUFFICIENCY. ............... 4 III. SANCTIONS CANNOT BE NOT BASED UPON TRIAL

COURT’S INHERENT AUTHORITY. ...................................................... 5 IV. CONCLUSION AND PRAYER. .................................................................. 8

CERTIFICATE OF COMPLIANCE ......................................................................... 9

CERTIFICATE OF FILING AND SERVICE .......................................................... 9

ii *3 INDEX OF AUTHORITIES Cases

Boyert v. Tauber,

834 S.W.2d 60 (Tex. 1992) ............................................................................ 2 Boyles v. Kerr ,

855 S.W.2d 593 (Tex. 1993) .......................................................................... 2 Cain v. Bain,

709 S.W.2d 175 (Tex. 1986) .......................................................................... 4 Cauble v. Worsham,

70 S.W. 737 (Tex. 1902) ................................................................................ 4 Cire v. Cummings,

134 S.W.3d 835 (Tex. 2004) .......................................................................... 8 Dawson v. Tumlinson,

150 Tex. 451, 242 S.W.2d 191, (1951) .......................................................... 4 Francis v. Thomas,

129 Tex. 579, 106 S.W.2d 257 (1937) ........................................................... 2 Greene v. Young ,

174 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) ........... 6 Hooks v. Bridgewater,

111 Tex. 122, 229 S.W. 1114 (1921) ............................................................. 2 Horizon/CMS Healthcare Corp. v. Auld ,

34 S.W.3d 887 (Tex. 2000) ............................................................................ 1 In re Acceptance Ins. Co .,

33 S.W.3d 443 (Tex. App.—Fort Worth 2000, no pet.) ................................ 7 In re Bennett ,

960 S.W.2d 35 (Tex. 1997) .................................................................... 5, 6, 7 In re Park Mem’l Condo. Ass’n ,

322 S.W.3d 447 (Tex. App.—Houston [14th Dist.] 2010, orig.

proceeding) ..................................................................................................... 7 iii

Kugle v. DaimlerChrysler Corp .,

88 S.W.3d 355 (Tex. App.—San Antonio 2002, pet. denied) ....................... 7 Ojeda v. Ojeda,

461 S.W.2d 487 (Tex. Civ. App.—Austin 1970, writ ref’d n.r.e.) ................ 3 Shockey v. A.F.P., Inc .,

905 S.W.2d 629 (Tex. App.—Houston [14th Dist.] 1995, no writ) ............... 7 Thompson v. Dart,

746 S.W.2d 821 (Tex. App.—San Antonio 1988, no writ) ............................ 5 Troxel v. Bishop,

201 S.W.3d 290 (Tex. App.—Dallas 2006, no pet.) ...................................... 4 Walker v. Walker,

488 S.W.2d 171 (Tex. Civ. App.—Waco 1969, writ ref’d n.r.e.) .................. 2 Zep Mfg. Co. v. Anthony ,

752 S.W.2d 687 (Tex. App.—Houston [1st Dist.] 1988, no writ) ................. 6 Statutes and Rules

T EX . B US . & C OM . C ODE § 26.01 .............................................................................. 2

T EX . P ROP . C ODE § 5.021 ........................................................................................... 2

T EX . R. C IV . P. 67 ....................................................................................................... 2

iv *5

APPELLANT’S MOTION FOR REHEARING I. UNDER THE TEXAS “FAIR NOTICE” RULE, DOREEN PROPERLY

PLEADED PAROL SALE.

This Court’ opinion asserts that parol sale was not pleaded and refuses to consider the issue. Op. at 5. However, the Plaintiff’s First Amended Original

Petition does raise the issue of parol sale. “In the alternative to adverse possession,

Plaintiff asserts that the deceased, Joan Walsh Breheny gave the Property to Plaintiff

in exchange for caring for the deceased, and with the understanding the Plaintiff

would pay the taxes and mortgage on the Property and improve the Property . The

amounts paid by Plaintiff on the mortgage, taxes, and improvements from 1993

through 2013 total in excess of $100,000.00. ” CR 2103 (emphasis added). There

were no special exceptions to this pleading. This pleading is sufficient to establish

the claim that the property was given to her as a result of her payments – the very

definition of a parol sale.

Texas follows a “fair notice” standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the

controversy and what testimony will be relevant. Horizon/CMS Healthcare Corp.

v. Auld , 34 S.W.3d 887, 896 (Tex. 2000). Doreen’s pleading discusses the nature of

the claim and that Doreen expected to rely on testimony that she paid for the house

to show that she now owns the house. When a party fails to specially except, courts

should construe the pleadings liberally in favor of the pleader. Id . at 897, citing

Boyles v. Kerr , 855 S.W.2d 593, 601 (Tex.1993). Moreover, “When issues not

raised by the pleadings are tried by express or implied consent of the parties, they

shall be treated in all respects as if they had been raised in the pleadings.” T EX . R.

C IV . P. 67.

Generally, a conveyance of real property must be in writing. See T EX . B US .

& C OM . C ODE § 26.01; T EX . P ROP . C ODE § 5.021. However, the Texas Supreme

Court emphatically stated that for an oral contract to purchase realty to be

enforceable three things must occur: (1) payment of the consideration, (2) possession

by the vendee, (3) the making by the vendee of valuable and permanent

improvements upon the land with the consent of the vendor, or, without such

improvements, the presence of such facts as would make the transaction a fraud upon

the purchaser if it were not enforced. Hooks v. Bridgewater , 111 Tex. 122, 229 S.W.

1114 (1921). These steps invoke the doctrine of partial performance and are seen as

sufficient evidence of the agreement because they provide affirmative corroboration

of the agreement by both parties to the agreement. Boyert v. Tauber , 834 S.W.2d

60, 63 (Tex. 1992); Francis v. Thomas , 129 Tex. 579, 106 S.W.2d 257, 260 (1937);

Hooks , 229 S.W. at 1117.

Payment of consideration in full is not required in order to remove a parol sale from the operation of the statute of frauds where the purchaser has possession of the

land and has made valuable improvements thereon. Walker v. Walker , 488 S.W.2d

171, 173 (Tex. Civ. App.—Waco 1969, writ ref’d n.r.e.). Moreover, there is no

statute of limitations that applies to this type of action because the enforcement of a

parol sale is, in essence, a suit for the removal of cloud on title and a cause of action

for its removal is never barred while the cloud exists. Ojeda v. Ojeda , 461 S.W.2d

487, 488 (Tex. Civ. App.—Austin 1970, writ ref’d n.r.e.).

The trial court was mistaken on the law that a writing was necessary to support a parol gift or parol sale of real property. “The law in Texas is clear about how you

– you give gifts or you contract property out. And that means there has to be a

writing.” RR III, 301. The mistake of law was compounded by counsel for Jamie

Walsh, “And when it comes to real property, we all know you’ve got to have that in

writing.” RR III, 79. Doreen, representing herself at trial, was not able to apprise

the court of the correct legal standard to apply, but the law applies nonetheless. The

facts were presented at the trial. This Court determines how to apply the law to those

facts.

The evidence supporting the parol sale of this property is undisputed. Doreen paid over $110,000 on Joan’s mortgage of this property as consideration. Doreen

has been in continuous possession of the property since 1993. Further, Doreen made

valuable and permanent improvements to the property. The evidence is

overwhelming in support of a parol sale and the case should be rendered in favor of

Doreen on this basis.

II. THE EVIDENCE SHOULD BE REVIEWED FOR FACTUALLY

INSUFFICIENCY AS WELL AS LEGAL INSUFFICIENCY.

In one sentence, without addressing any evidence, this Court’s opinion states that the court has “considered and weighed all the evidence and concluded that the

district court’s implied findings are not so contrary to the overwhelming weight of

the evidence so as to be clearly wrong and unjust.” Op. at 5, citing Cain v. Bain ,

709 S.W.2d 175, 176 (Tex. 1986). This Court’s opinion does not address the

evidence supporting parol sale. This Court’s opinion does not address the factual

sufficiency of the evidence supporting any of Doreen’s complaints.

As an alternative to parol sale, the evidence also supported parol gift. Texas law recognizes that a gift of realty can be made in two ways: either by deed or by

parol gift. Troxel v. Bishop , 201 S.W.3d 290, 297 (Tex. App.—Dallas 2006, no

pet.). The elements of a parol gift of realty are the same as those for parol sales of

realty, except there must be evidence of gift, and of course proof of consideration is

not required. Dawson v. Tumlinson , 242 S.W.2d 191, 193 (Tex. 1951); Cauble v.

Worsham , 70 S.W. 737, 738 (Tex. 1902).

The same facts that support a parol sale also support a parol gift. Jamie testified that his mother was giving the house to him until Doreen took it over in

1993. Joan had a history of purchasing homes and giving them to her children.

When Doreen took possession of the house, she had the same deal with Joan as Jamie

previously did. To establish an oral gift of an interest in real property, a party must

show: (1) a gift in praesenti or a gift at the present time; (2) possession under the gift

by the donee with the donor’s consent; and (3) permanent and valuable

improvements made on the property by the donee with the donor’s knowledge or

consent or, without improvements, the existence of such facts as would make it a

fraud upon the donee not to enforce the gift. Thompson v. Dart , 746 S.W.2d 821,

825 (Tex. App.—San Antonio 1988, no writ). Jamie could not claim that the parol

gift to him was complete because he did not fulfill the third element. The only

difference between Jamie’s parol gift with Joan and Doreen’s parol gift was that

Doreen made substantial improvements to the house, thereby completing the parol

gift, whereas there was no evidence that Jamie made any improvements to the

property.

III. SANCTIONS CANNOT BE NOT BASED UPON TRIAL COURT’S

INHERENT AUTHORITY.

This Court’s opinion determines that the sanctions were issued pursuant to the trial court’s “inherent power.” Op. at 7. Since this is the only basis upon which this

Court can justify the sanctions, it is clear that the sanctions must be reversed. While

a trial court has authority to impose sanctions based upon inherent authority, such

sanctions are not appropriate without notice and the opportunity to be heard.

This Court cites In re Bennett , 960 S.W.2d 35, 40 (Tex. 1997) as authority for a trial court to rely upon its inherent authority to order sanctions. Op. at 7. However,

In re Bennett involved a show cause order that provided the parties with notice that

the court was considering the exercise of its inherent authority and an opportunity to

be heard on the matters delineated in the show cause order. Id . at 37. In this case,

the only motion for sanctions on file was Jamie Walsh’s Motion to Strike Discovery

and for Sanctions. CR233-36. The motion was exclusively based upon the assertion

of Doreen’s alleged failure to respond to discovery requests. Id . There was no

mention in that motion of invoking the trial court’s inherent authority to sanction.

Id . There was no mention in that motion of any alleged failure to appear at scheduled

hearings, as apparently relied upon in this Court’s opinion. Id .; Op. at 7. The

response to the motion asserts, with attached evidence demonstrating that Doreen

did, in fact, respond and fully comply with the discovery requests in writing and by

making the documents available for inspection. CR 264-80. The Order Imposing

Sanctions specifically bases its sanctions upon Jamie Walsh’s Motion to Strike

Discovery and for Sanctions. CR 288.

“Notice is essential for the proper imposition of sanctions.” Zep Mfg. Co. v. Anthony , 752 S.W.2d 687, 690 (Tex. App.—Houston [1st Dist.] 1988, no writ).

Although a trial court has the inherent authority to impose sanctions, and may do so

sua sponte, the trial court is not permitted to sanction out-of-court conduct without

first providing notice and an opportunity to be heard. See, e.g., Greene v. Young ,

174 S.W.3d 291, 293 n.4 (Tex. App.—Houston [1st Dist.] 2005, pet. denied);

Shockey v. A.F.P., Inc ., 905 S.W.2d 629, 630 (Tex. App.—Houston [14th Dist.]

1995, no writ).

The trial court’s “inherent power to punish without prior notice and meaningful hearing exists only with respect to ‘direct’ contempt,” that is, to

contempt that occurs in the court’s presence. In re Acceptance Ins. Co ., 33 S.W.3d

443, 449 (Tex. App.—Fort Worth 2000, no pet.). “Like contempt proceedings,

proceedings for sanctions must comport with due process, affording a party an

adequate opportunity to be heard.” Id . at 451. By sanctioning Doreen without notice

and an opportunity to be heard, the trial court violated her due process rights and

clearly abused its discretion. See In re Bennett , 960 S.W.2d at 40 (noting that the

right to due process limits a court’s power to sanction); In re Park Mem’l Condo.

Ass’n , 322 S.W.3d 447, 450 (Tex. App.—Houston [14th Dist.] 2010, orig.

proceeding) (“Due process, on a fundamental level, requires notice and a fair

opportunity to be heard.”); Kugle v. DaimlerChrysler Corp ., 88 S.W.3d 355, 361

(Tex. App.—San Antonio 2002, pet. denied) (“A trial court abuses its discretion if

it violates due process by imposing sanctions without notice or a meaningful

hearing.”).

The fact that this Court cannot support the sanctions order based solely upon the motion for sanctions on file demonstrates that the sanctions order should be

reversed. Doreen was not placed on notice of any other basis for sanctions other

than the motion on file regarding discovery issues. A trial court’s imposition of

sanctions is reviewed under the abuse of discretion standard of review. Cire v.

Cummings , 134 S.W.3d 835, 838 (Tex. 2004). Since the only basis for this Court to

sustain the sanctions order is the trial court’s inherent authority, and the trial court

did not have the inherent authority to sanction Doreen under the circumstances of

this case, the sanctions order should be reversed.

IV. CONCLUSION AND PRAYER.

Doreen Rubio requests this Court to grant this Motion for Rehearing and reconsider its opinion.

Respectfully submitted, /s/ Tracy J. Willi Tracy J. Willi

Texas Bar No. 00784633 Willi Law Firm, P.C.

9600 Escarpment Blvd., Ste. 745, PMB 34 Austin, TX 78749-1983 Tel. (512) 288-3200 Fax (512) 288-3202 twilli@willi.com ATTORNEY FOR APPELLANT, DOREEN RUBIO *13 CERTIFICATE OF COMPLIANCE In accordance with Texas Rule of Appellate Procedure 9.4, I hereby certify that this document contains 1,890 words.

/s/ Tracy J. Willi Tracy J. Willi

CERTIFICATE OF FILING AND SERVICE I hereby certify that this document was filed with Clerk of Court through the Court’s electronic filing system and served on opposing counsel by the same manner

or, if counsel is not registered for service through the electronic filing system, then

by facsimile or U.S. Mail to the parties and also by email to Ms. Stewart on August

26, 2015 as follows:

Trial and Appellate Counsel for Jamie Walsh:

Ellen P. Stewart

stewart@bls-legal.com

Barnes Lipscomb Stewart & Ott, PLLC

2901-D Bee Caves Rd.

Austin, TX 78746

512-328-8355

512-328-8413 (Fax)

Appellee Pro Se :

Emmet Walsh, an individual, son of Joan Walsh, deceased

2215 Silver Holly Lane

Dallas, Texas 75082

Appellee Pro Se :

Ellen Thornton, an individual, daughter of Joan Walsh, deceased

and as Trustee for Kevin Walsh, incapacitated son of Joan Walsh, and as

Trustee for Lauren Loprintze-Walsh, Torrance Rubio, and Gabriel Rubio,

biological children of Doreen Rubio

224 W. 259th Street

Bronx, New York 10471

/s/ Tracy J. Willi Tracy J. Willi