David Young v. Trails End Homeowners Association, Inc. TLS Properties, Ltd. TLS Operating Company, LLC Van Keene And Rick Durapau

Opinion

ACCEPTED 03-14-00535-CV 5404993 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/22/2015 4:25:30 PM JEFFREY D. KYLE CLERK NO. 03-14-00535-CV __________________________________________________________ FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 5/22/2015 4:25:30 PM AUSTIN, TEXAS JEFFREY D. KYLE __________________________________________________________ Clerk

DAVID YOUNG, Appellant

vs.

TRAILS END HOMEOWNERS ASSOCIATION, INC.; TLS PROPERTIES, LTD.; TLS OPERATING COMPANY, LLC; VAN KEENE; AND RICK DURAPAU, Appellees

On Appeal from the 200th Judicial District Court of Travis County, Texas (Honorable Scott H. Jenkins, of the 53rd Judicial District Court, Presiding) Trial Court Cause No. D-1-GN-10-003864 __________________________________________________________

APPELLEES TLS PROPERTIES, LTD. AND TLS OPERATING COMPANY, LLC’S BRIEF __________________________________________________________

Derek Quick State Bar No. 24072471 STRASBURGER & PRICE, LLP 720 Brazos Street, Suite 700 Austin, Texas 78701 512.499.3600 512.499.3660 – fax derek.quick@strasburger.com ATTORNEYS FOR APPELLEES TLS PROPERTIES, LTD. AND TLS OPERATING COMPANY, LLC TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................i

TABLE OF AUTHORITIES .................................................................................... II

I. STATEMENT REGARDING ORAL ARGUMENT ..................................... 1

II. ISSUES PRESENTED (RESTATED) ............................................................ 2 III. STATEMENT OF FACTS .............................................................................. 2 IV. SUMMARY OF THE ARGUMENT .............................................................. 5

V. ARGUMENT .................................................................................................10 A. Has Mr. Young proven he has superior title to the Extended Property? .............................................................................................11

1. Young failed to admit any legally competent evidence in support of his claim that he had superior title to the Extended Property. ....................................................................................12

2. Oral testimony to establish superior title is not legally competent evidence. ..................................................................14

3. Judicial notice of chain of title is not proper. ...........................16

B. Has Mr. Young proven that the Extended Property conflicts with either Lot 140 (owned by TLS) or Lot 139 and the adjoining 1.4777 acre tract (both owned by Trails End)? ................... 18

1. There is no conflict among the properties because the Extended Property language was correctly interpreted to mean the center of that portion of Big Sandy Creek in between Lot 52 and Lot 140. ............................................................................................18

C. Response to Appellant’s Issue No. 1: Mr. Young’s claim that the 1962 plat is void as a matter of law fails for several reasons........ 22 D. Joinder in Trails End’s brief. ...............................................................25 VI. CONCLUSION AND PRAYER ...................................................................25

Page i TABLE OF AUTHORITIES Page(s) CASES Coale v. Scott, No. 07-09-0249-CV, 2009 Tex. App. LEXIS 8976 (Tex. App.—Amarillo Nov. 19, 2009) ..............................................................................................16, 17 Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc., 686 S.W.2d 351 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) ................... 22 Gillum v. Temple, 546 S.W.2d 361 (Tex. Civ. App.—Corpus Christi 1976, writ ref'd n.r.e.) ........ 14 Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 4 Tex. Sup. Ct. J. 223 (Tex. 1961) .................. 11 Huey v. Huey, 200 S.W.3d 851 (Tex. App.—Dallas 2006, no pet.) ..........................................23 Kilpatrick v. McKenzie, 230 S.W.3d 207 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ...................11 Murphy v. Tribune Oil Corp., 656 S.W.2d 587 (Tex. App.—Fort Worth 1983) ...................................................................................................................14 Ramsey v. Jones Enterprises, 810 S.W.2d 902 (Tex. App.—Beaumont 1991, writ denied) .............................14 Rogers v. Ricane Enters., 884 S.W.2d 763 (Tex. 1994) ..................................................................11, 13, 17

SEI Business Systems, Inc. v. Bank One Taxes, N.A., 803 S.W.2d 838 (Tex. App.—Dallas 1991, no writ) ....................................16, 17 State of California Department of Mental Hygiene v. Bank of Southwest National Association, 354 S.W.2d 576 (Tex. 1962) ..............................................................................22

Union Pac. Resources Co. v. Mathews, No. 09-98-076-CV, 1998 Tex. App. LEXIS 2024 (Tex. App.—Beaumont Apr. 2, 1998, no pet.) (not designated for publication) ......................................15

Page ii STATUTES TEX. REV. CIV. STAT. ANN. Article 974a, § 5 ..........................................................22

RULES TEX. R. APP. P. 38.1(i)..............................................................................................23

TEX. R. APP. P. 38.1(g) ...............................................................................................2

TEX. R. CIV. P. 39 .....................................................................................................24

Page iii I. STATEMENT REGARDING ORAL ARGUMENT Although Appellant included “Oral Argument Requested” on the cover page

of his brief, within the body of the brief, Appellant states that he believes a

decision can be made on the record. Appellees TLS Properties, Ltd. and TLS

Operating Company, LLC believe that oral argument is not warranted in this

appeal as the case sets forth established law and undisputed facts proven at trial.

Appellant failed to meet his burden to present evidence in support of his claims

and Defendants supplied more than ample evidence to support their counterclaims

and affirmative defenses. Accordingly, this case is appropriate for disposition by

memorandum opinion without the necessity of oral argument. However, to the

extent this Court grants Appellant’s request for oral argument, Appellees request

an opportunity to present argument as well.

Page 1 II. ISSUES PRESENTED (RESTATED) 1) Whether Mr. Young has proven he has superior title to the Extended Property.

2) If Mr. Young has established superior title to the Extended Property, whether the Extended Property in fact conflicts with either Lot 140 (owned by TLS) or Lot 139 and an adjoining 1.4777 acre tract (both owned by Trails End).

3) Whether the trial court was barred as a matter of law from recognizing the 1962 re-plat. (Response to Appellant’s Issue No. 1.) 1

III. STATEMENT OF FACTS In the interest of avoiding unnecessary duplication, Appellees TLS

Properties, Ltd. and TLS Operating Company, LLC (collectively referred to herein

as “TLS”) refer the Court to the statement of facts submitted by co-Appellee Trails

End Homeowners’ Association (referred to herein as “Trails End”), which is

incorporated by reference.

With respect to Appellant’s statement of facts, pursuant to TEX. R. APP. P.

38.1(g), TLS objects to the following statements as being accepted as true, as they

are either not supported by record cites, are legal conclusions, or are contradicted

by other evidence in the record:

1 In the body of his brief, this is generally how Appellant refers to his first issue (see page 15). In his Issues Presented (on pages 3-4), he appears to split the issue into subparts and lists them as Issues 1 and 2.

Page 2 • “This testimony was corroborated by Appellees’ local fact witness, June

Roberts, who testified that for “three, four years” there had been no access to

Lots 139 or 140, situated north and west of Young’s Lot 52. 2RR.236 ll.3-

17. This is the only testimony of use regarding that property in the record.”

(emphasis in original).

Objection: TLS witness Bruce Smith provided testimony regarding use of

the property at issue, including leasing it to the Trails End Homeowners’

Association, use for boat access, and use as a recreation area. 2RR 216:11-

218:12.

• “Smith also testified that he did not know the “gully” boundaries with

respect to the property lines of Lot 52. 2RR.226 ll. 18-21.”

Objection: Misconstrues the testimony in the record. Mr. Smith was asked

by Mr. Young, “But do you know that the south property line of Lot 52 is

200 feet away from Big Sandy Gully? Do you know that?” and Mr. Smith

responded: “No, I don’t know that.” In addition, above the testimony cited

by Mr. Young, Mr. Smith was asked “Do you know that [the south property

line] does not get close to the Big Sandy Gully?” and he responded: “I don't

because there is a gully there. I've seen it.” 2RR 226:14-17. In other words,

in this line of questioning, Mr. Young was merely attempting to get Mr.

Smith to concede a point, and Mr. Smith refused to do so.

Page 3 • “To do so, Crichton had to assume that the deed chain from Smith to Young

does not truly extend the sidelines of Lot 52 to the “center of Big Sandy

Creek.” 2RR.152 ln. 22 - 2RR.153 ln. 5.”

Objection: Record cite does not support this assertion, and in particular, no

mention is made regarding a purported “deed chain from Smith to Young.”

• “Young appeared pro se, and despite difficulty, provided the necessary

evidence to refute Defendants’ counterclaims and to establish his claims.”

Objection: This is a legal conclusion.

• “His chain of title (testified over objection) arose from the 1955 conveyance

and encompassed land from the extension of the sidelines of his lot “to the

center of Sandy Creek.” 2RR.89 ll. 2-18.”

Objection: As discussed below, this is legally incompetent evidence to

prove his title. So although Mr. Young did testify that “the 1955

conveyance is clear that what Mr. Smith sold was the extension of the

sidelines to the center of Sandy Creek, and that's what was conveyed

through title to me,” this should not be accepted as true for purposes of this

appeal.

• “Lot 52 sideline extensions (used by Crichton in his survey) clearly show

Lot 140 conflicts with the deed of Lot 52, and should demonstrate his prior

title to the center of Sandy Creek. 2RR.103 ll. 4-7.”

Page 4 Objection: This is a legal conclusion. In addition, the cited testimony does

not support this statement, and it is merely Mr. Young’s argument about

what the survey allegedly shows. The survey speaks for itself.

• “Lot 139 was an illegal plat. 2RR.105. ll. 23-24.”

Objection: This is a legal conclusion. In addition, the cited testimony is

argument or merely a statement about Mr. Young’s belief: “I wouldn't

acquiesce to that position because I believe the '62 plat was illegal.”

• “The 1.477 acres encroaches onto Lot 52. 2RR. 107 ll. 7-9.”

Objection: This is a legal conclusion. In addition, Mr. Young was being

asked his contention; it is not evidence that the 1.477 acres in fact

encroaches onto Lot 52.

IV. SUMMARY OF THE ARGUMENT 2 This lawsuit involves a parcel of land within the Trails End Subdivision,

which was originally platted in 1947. Appellant David Young owns Lot 52 in the

Trails End Subdivision, and alleges in this lawsuit that his property also includes

“that parcel of land being the extensions of the side lot lines of Lot 52 to the center

line of Big Sandy Creek” (referred to herein as the “Extended Property”). Mr.

Young further alleges that the property boundaries of parcels belonging to

2 Again, to avoid unnecessary duplication, TLS will not address all issues raised in Mr. Young’s initial brief, but rather refers the Court to Trails End’s brief, which is incorporated by reference.

Page 5 Appellees TLS and Trails End encroach upon or conflict with Mr. Young’s

property, and more specifically, with the Extended Property (as he interprets the

boundaries of the Extended Property). Mr. Young filed suit against Appellees,

raising a number of tort and property based claims. However, in this appeal, Mr.

Young only seeks to overturn the adverse judgment on his trespass to try title claim

(and ancillary issues related to that claim, including adverse possession findings

and an attorneys’ fee award in favor of Trails End). 3

Despite the focus of Mr. Young’s brief on a host of other issues, Mr.

Young’s appeal turns on whether: 1) Mr. Young has proven he has superior title to

the Extended Property; and 2) if he has established superior title to the Extended

Property, whether the Extended Property in fact conflicts with either Lot 140

(owned by TLS) or Lot 139 and an adjoining 1.4777 acre tract (both owned by

Trails End).

Mr. Young’s appeal fails for several reasons. Mr. Young, who had the

burden of proof at trial, failed to provide any evidence in support of his claim that

he had superior title to the Extended Property. Importantly, it is incumbent on the

plaintiff to recover upon the strength of his own title, not the weakness of his

opponent’s title. Mr. Young ignores his burden entirely, and spends most of his

brief focusing on a new argument claiming that Appellees’ title is somehow void

3 Mr. Young’s tort claims were not even mentioned in his initial brief.

Page 6 because a 1962 re-plat allegedly failed to comply with a statute in effect at the

time. In fact, although he never directly addresses this in his brief, Mr. Young

failed to even offer his own deed into evidence at trial. In terms of written

instruments in the actual record, the Extended Property language is only found in a

1955 deed from T.L. Smith, Jr. to Sylvia Trundle. Thus, Mr. Young did not

establish superior title by proving a regular chain of conveyances from the

sovereign or by proving a superior title out of a common source, as is required for

his trespass to try title claim.

In an apparent effort to excuse this fatal flaw in his case, Appellant’s brief

points to a few lines of oral testimony from Mr. Young, and further requests that

the Court take judicial notice of the chain of title. Neither attempt to establish

chain of title is legally sufficient or proper. As to the former—establishing title

through oral testimony—this is legally insufficient. Under Texas law, if title to

real property is directly at issue, as it is in this case, proof of title must be made by

written instruments. Therefore, even if Mr. Young’s oral testimony did establish

the full chain of title going back to the sovereign or to a common owner (which it

did not, as will be shown below), the testimony would still be legally incompetent

evidence and insufficient to establish his right to relief.

With regard to Mr. Young’s request that the Court take judicial notice of the

Trundle-Scot-Young chain—this too should be rejected by the Court. Although

Page 7 judicial notice may be taken for the first time on appeal, appellate courts generally

avoid taking judicial notice of matters which go to the merits of a dispute. Mr.

Young is in essence asking this Court to completely ignore the trial on the merits,

and Mr. Young’s failure to present any evidence supporting his claims, and simply

have the parties start over by asking the Court to take judicial notice of the critical

evidence he failed to present. This not only goes to the merits of the dispute, but it

is the key issue in the dispute.

In addition, even if the Court excused Mr. Young’s failure to introduce into

the record his deed and the full chain of title going back to a common source,

which was his burden at trial, that still does not mean Mr. Young is entitled to

relief. Mr. Young assumes throughout his brief that there is no dispute as to the

meaning of “the center of Big Sandy Creek” contained in the 1955 Trundle deed,

referring to this language as “unambiguous” and treating it as if it clearly

establishes a conflict with the property owned by TLS and Trails End. However,

the meaning of this language was a key issue at trial, and the trial court properly

found that it should be interpreted to mean the center of that portion of the creek

between Mr. Young’s Lot 52 and Appellees’ Lots 139 and 140. That interpretation

is consistent with the 1947 plat, as well as the evidence in the record, including the

testimony of Bruce Smith (the grandson of T.L. Smith, Jr. and representative of the

TLS entities), a Travis County Appraisal District map, the Steger & Bizell survey,

Page 8 and the expert opinion of Herman Crichton, who testified that his opinion was that

the boundary of Mr. Young’s Lot 52 is the center of the portion of Sandy Creek

between Lot 52 and Lot 140, as depicted in the Steger & Bizzell survey. Further,

Mr. Young’s interpretation would cause additional conflicts with neighboring lots,

even as depicted on the 1947 plat, since nearby Lots 53 and 54 contain the same

Extended Property language. In other words, even going back to the original 1947

plat, Mr. Young’s interpretation does not make any sense, as it would create

conflicts with other neighboring lots, while Appellee’s interpretation would avoid

any conflict and harmonize the property boundaries in the subdivision.

Finally, Mr. Young, for the first time on appeal, contends that a 1962 re-plat

was void as a matter of law for failing to comply with a re-platting statute in effect

at the time. This argument also fails for a number of reasons. First, the Court

should find this argument was waived for failing to present it to the trial court.

Second, the statute on its face applies to “any tract of land situated within the

corporate limits of any city in the State of Texas,” and there is nothing in the

record or in Mr. Young’s brief establishing that the property at issue was within a

city’s corporate limits in 1962. Third, Mr. Young fails to offer any supporting

authority for his claim that a failure to obtain approvals from affected landowners

renders the re-plat “void as a matter of law,” and the plain text of the statute shows

that is not the case. Fourth, Mr. Young is asking this Court to find the 1962 re-plat

Page 9 void, but Mr. Young did not join any of the neighboring property owners who

would be impacted by that decision as parties in this case. And finally, even if the

Court were to find that the 1962 re-plat were void as a matter of law despite all

these obstacles, that still would not mean that Mr. Young prevails in his trespass to

try title claims. Mr. Young would still have to show that the language in his deed

means what he claims it does, and Mr. Young cannot meet this burden, particularly

on this record.

For all these reasons, Mr. Young’s appeal should be denied, and the trial

court’s judgment should be affirmed.

V. ARGUMENT Please see Trails End’s brief for the appropriate standard of review, which is

incorporated by reference as if set forth fully herein.

In this brief, TLS is only responding directly to Appellant’s Issue No. 1 (in

Subsection C. below). 4 The remaining issues will be addressed by Appellee Trails

End. TLS joins in and incorporates by reference Trails End’s briefing on those

issues.

Prior to addressing Appellant’s Issue No. 1, however, TLS must address two

issues that Appellant failed to directly address in its brief, but which are issues that

4 As noted in footnote 1, Appellant appears to split Issue 1 from the body of his brief into Issues 1 and 2 in his Statement of Issues.

Page 10 TLS believes are fatal to Mr. Young’s appeal. Specifically, those issues are: (1)

whether Mr. Young has proven he has superior title to the Extended Property; and

2) if he has established superior title to the Extended Property, whether that

Extended Property in fact conflicts with either Lot 140 (owned by TLS) or Lot 139

and an adjoining 1.4777 acre tract (both owned by Trails End).

A. Has Mr. Young proven he has superior title to the Extended Property? In a trespass to try title claim, under “well-established Texas law,” it is

incumbent on the Plaintiff to recover upon the strength of his own title, not the

weaknesses of Defendants’ title. Kilpatrick v. McKenzie, 230 S.W.3d 207, 213-

214 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Hejl v. Wirth, 161

Tex. 609, 610-11, 343 S.W.2d 226, 4 Tex. Sup. Ct. J. 223 (Tex. 1961)); see also

Rogers v. Ricane Enters., 884 S.W.2d 763, 768 (Tex. 1994). The plaintiff may

recover (1) by proving a regular chain of conveyances from the sovereign, (2) by

proving a superior title out of a common source, (3) by proving title by limitations,

or (4) by proving prior possession, and that the possession has not been abandoned.

Rogers, 884 S.W.2d at 768. Therefore, the burden rested upon Mr. Young, as

plaintiff below, to prove a prima facie right to title and possession by one of these

methods. Kilpatrick, 230 S.W.3d at 213-214.

Moreover, any purported issues with a defendant’s title are irrelevant unless

and until a plaintiff establishes his prima facie right to title. See id. at 214:

Page 11 [W]hen, as in this case, the defendant is shown to be in possession of the land in controversy and the plaintiffs fail to establish their prima facie right to title, judgment must be entered in the defendant's favor. This is true even though the defendant may have pled a title that he failed to establish, because under this well-settled and unforgiving law, plaintiffs are not entitled to recover unless their own title has been affirmatively proven.

1. Young failed to admit any legally competent evidence in support of his claim that he had superior title to the Extended Property. As noted above, Mr. Young contends that he owns Lot 52, along with the

Extended Property defined as “that parcel of land being the extensions of the side

lot lines of Lot 52 to the center line of Big Sandy Creek.” In his brief, Mr. Young

raises a number of arguments, including why he believes the 1962 re-plat is

allegedly void, why T.L. Smith, Jr. could not give away what he did not own, and

why the Extended Property language is allegedly unambiguous and that it means

Mr. Young owns the land “all the way to the center of Big Sandy Creek” (though

Mr. Young never does show precisely where this would be should he prevail).5

Mr. Young, however, failed to prove a threshold issue at trial, making all these

other issues on appeal irrelevant. Specifically, as the trial court correctly found in

Finding of Fact No. 14, “Plaintiff did not offer any credible evidence that he owns

the Extended Property, as described above.”

5 This was true both at the trial court and in his Initial Brief. In other words, throughout this entire litigation, Mr. Young has never provided any indication of where the precise boundary line should be, other than some undefined point at the “center of Big Sandy Creek.”

Page 12 In fact, at the trial below, Mr. Young failed to even offer his own deed into

evidence at trial, much less the intervening deeds between the conveyance from

T.L. Smith, Jr. to Ms. Trundle and the conveyance in which Mr. Young ultimately

acquired his property. In terms of written instruments that were admitted in the

record, the only deed in which the Extended Property language is found is in a

1955 deed from T.L. Smith, Jr. to Sylvia Trundle.6 Thus, Young did not establish

superior title to the Extended Property by proving a regular chain of conveyances

from the sovereign or by proving a superior title out of a common source, as is

required for his trespass to try title claim. Rogers, 884 S.W.2d at 768. Without

proof in the record that he had title to the Extended Property, any contention that

the Extended Property conflicts with TLS’s and Trails End’s properties is entirely

irrelevant as it relates to Mr. Young.

Curiously, Mr. Young does not even address, much less attempt to excuse,

this critical omission in his brief. Rather, he sidesteps the issue by asserting in his

Statement of Facts that his chain of title was established through his oral

testimony. 7 Mr. Young also requests, in connection with his argument that the

deeds are unambiguous, that the Court simply take judicial notice of his chain of

6 Plaintiff’s Exhibit 4, included in Appellant’s Appendix at Tab 5. 7 See Appellant’s Brief at 10 (“His chain of title (testified over objection) arose from the 1955 conveyance and encompassed land from the extension of the sidelines of his lot “to the center of Sandy Creek.”) (citing Mr. Young’s testimony at 2RR.89 ll. 2-18).

Page 13 title back to Ms. Trundle.8 As shown below, however, neither attempt is proper,

and both should be rejected by the Court.

2. Oral testimony to establish superior title is not legally competent evidence. Under Texas law, “[w]here title to real property is directly in issue, proof of

title must be made by written instruments.” Murphy v. Tribune Oil Corp., 656

S.W.2d 587, 589 (Tex. App.—Fort Worth 1983, writ dism’d) (citing Gillum v.

Temple, 546 S.W.2d 361 (Tex. Civ. App.—Corpus Christi 1976, writ ref'd n.r.e.)).

In Murphy, the only evidence offered to establish title to certain mineral interests

was oral expert testimony, and the court held that the expert testimony was “no

evidence of any right to the mineral interests claimed by appellees.” Murphy, 656

S.W.2d at 589. Mr. Young did not even go that far; all he offered was his own

conclusory lay witness testimony. This is not legally competent evidence to

establish his superiority of title. See id.:

In this case no written documentation was offered to prove that appellees were successors in title to McCrory. The only evidence offered to prove that allegation was in the form of oral testimony. In a case such as this such testimony is not legally competent evidence.

See also Ramsey v. Jones Enterprises, 810 S.W.2d 902, 905 (Tex. App.—

Beaumont 1991, writ denied) (holding that party failed to meet its burden when

only evidence supporting trespass to try title claim was oral testimony of expert);

8 See Appellant’s Brief at 18 (“Here, the subject property deeds to the Trundle-Scot-Young chain of title are unambiguous. Judicial notice of that chain is hereby requested.”).

Page 14 Union Pac. Resources Co. v. Mathews, No. 09-98-076-CV, 1998 Tex. App. LEXIS

2024, at *6 (Tex. App.—Beaumont Apr. 2, 1998, no pet.) (not designated for

publication) (“Interestingly, the record does not establish ownership of the subject

property. . . . Oral testimony of title is not sufficient probative evidence, even if

given by an expert.”).

Moreover, the entirety of Mr. Young’s testimony that he claims establishes

his chain of title, and that his property encompassed land from the extension of the

sidelines of his lot “to the center of Sandy Creek,” is as follows:

We can talk about issues after the '62 plat, but the 1955 conveyance is clear that what Mr. Smith sold was the extension of the sidelines to the center of Sandy Creek, and that's what was conveyed through title to me. 9

Significantly, the testimony Mr. Young cites does not include any discussion

about the various transactions that occurred between the 1955 conveyance from

T.L. Smith, Jr. to Ms. Trundle and the conveyance in which Mr. Young ultimately

acquired title (and Mr. Young does not claim that he acquired title directly from

Ms. Trundle). Therefore, even if oral testimony is considered competent evidence,

the testimony on which Mr. Young relies still does not establish a chain of title to a

common source.

9 The additional lines cited by Mr. Young only contained objections from counsel and discussion from the Court regarding the scope of Mr. Young’s testimony as a lay witness.

Page 15 3. Judicial notice of chain of title is not proper. As to the latter attempt at establishing chain of title—Mr. Young’s request

that the Court take judicial notice of the Trundle-Scot-Young chain10—this too

should be rejected by the Court. Even though courts may take judicial notice at

any time, even on appeal, “appellate courts are reluctant to take judicial notice of

matters which go to the merits of a dispute.” SEI Business Systems, Inc. v. Bank

One Taxes, N.A., 803 S.W.2d 838, 840-841 (Tex. App.—Dallas 1991, no writ)

(concluding that taking judicial notice was not proper when evidence went to

merits of dispute). As the Amarillo Court of Appeals explained in denying a

motion for judicial notice:

Documents that are not a part of the clerk’s record or reporter’s record are not part of the appellate record and may not be considered by the reviewing court. As a general rule, appellate courts take judicial notice only to determine jurisdiction over an appeal or to resolve matters ancillary to decisions which are mandated by law (e.g., calculation of prejudgment interest when the court renders judgment). Even though there are limited circumstances where an appellate court might take judicial notice of undisputed facts, to do so in this case runs the risk of effectively rendering this Court into one of original, not appellate jurisdiction.

Coale v. Scott, No. 07-09-0249-CV, 2009 Tex. App. LEXIS 8976, at *2 (Tex.

App.—Amarillo Nov. 19, 2009) (per curiam order on motion for judicial notice)

(internal citations and quotations omitted).

10 See Brief at 18 (“Here, the subject property deeds to the Trundle-Scot-Young chain of title are unambiguous. Judicial notice of that chain is hereby requested.”).

Page 16 Here, the evidence for which Mr. Young requests judicial notice goes to the

very heart of the dispute. Indeed, establishing superior title by showing his chain

of title to the sovereign or a common source is how Mr. Young (as Plaintiff) had to

establish his prima facie case under his trespass to try title cause of action. Rogers,

884 S.W.2d at 768. Mr. Young is in essence asking this Court to completely

disregard his failure to admit (or even offer) his deed into the record (as well as

any other deeds in the alleged chain of title other than the Trundle deed), and to

allow Mr. Young a second bite at trying to prove his case. To do so would be

“effectively rendering this Court into one of original, not appellate jurisdiction.”

Coale, 2009 Tex. App. LEXIS 8976 at *2; see also SEI Business Systems, 803

S.W.2d at 841 (“The Court of Appeals is not a trier of fact. For us to consider

evidence for the first time, never presented to the trial court, would effectively

convert this Court into a court of original, not appellate jurisdiction.”) (internal

quotations omitted). Accordingly, the request for judicial notice should be rejected

by the Court. 11

11 It should also be noted that the deed Mr. Young attaches to his brief does not even contain the Extended Property language from the Trundle deed on which he bases his whole case (“together with that parcel of land being the extensions of the side lot lines of Lot 52 to the center line of Big Sandy Creek”). See Appellant’s Appendix at Tab 8.

Page 17 B. Has Mr. Young proven that the Extended Property conflicts with either Lot 140 (owned by TLS) or Lot 139 and the adjoining 1.4777 acre tract (both owned by Trails End)? Assuming Mr. Young could establish that he owns the Extended Property

despite his failure to offer his own deed into evidence at trial, much less the

complete chain of title going back to a common source, the next issue is whether

Mr. Young has proven that the Extended Property actually conflicts with the

properties owned by TLS and Trails End. Throughout his brief, Mr. Young

assumes that there is no dispute as to the meaning of “the center of Big Sandy

Creek” contained in the 1955 Trundle deed, referring to this language as

“unambiguous” and treating it as if it clearly establishes a conflict with the lots

owned by TLS and Trails End. However, the meaning of this language was a key

issue at trial, and the evidence established that the only reasonable interpretation

was that it meant the center of that portion of Big Sandy Creek between Mr.

Young’s Lot 52 and Lot 140 (the lot owned by TLS).

1. There is no conflict among the properties because the Extended Property language was correctly interpreted to mean the center of that portion of Big Sandy Creek in between Lot 52 and Lot 140. The trial court correctly found in Finding of Fact No. 16 that “[t]he

Extended Property does not conflict with Lot 139, Lot 140, the 1.4777-acre tract,

Page 18 or West Darleen Drive.” 12 This is because the meaning of the Extended Property

language in the Trundle deed was properly interpreted to mean the center of that

portion of Big Sandy Creek between Lot 52 and Lot 140. This is consistent with

what the Steger & Bizzell survey 13 shows to be the boundary, and this is what

Trails End’s expert (the only expert who offered testimony at trial), Mr. Herman

Crichton, testified was his interpretation as to the boundary of Mr. Young’s Lot

52.14

Significantly, Mr. Young offered no competing survey showing an

alternative boundary, nor did he offer any expert testimony that supports his

argument as to where the boundary should lie. In fact, Mr. Young has never

explained precisely where the boundary should be if the Court were to accept his

interpretation of the Extended Property language. This is yet another reason Mr.

Young failed to meet his burden of proof.15

In addition, the trial court’s interpretation of the Extended Property language

is supported by the testimony of Mr. Smith, the TLS representative 16 and grandson

of T.L. Smith, Jr. 17 For example, Mr. Smith testified that the area between Lot 52

12 See TLS Appendix at Tab 3 (Clerk’s Record at p.184). 13 Defendant’s Exhibit 20, included in TLS Appendix at Tab 1. 14 2 R.R. 162:10-163:2. 15 This also makes it impossible to “render judgment in favor of Young,” as he requests. 16 2 R.R. 212:10-12. 17 2 R.R. 213:20-21.

Page 19 and Lot 140 is a part of Big Sandy Creek.18 When examining the Travis County

Appraisal District maps that were admitted into the record,19 Mr. Smith explained

how those documents also referred to the area between the properties as “Sandy

Creek Arm,” which is also the same label used for the area of the creek where Mr.

Young apparently believes the extension language is referring. 20 Mr. Smith also

testified about the Steger & Bizzell survey, and how that survey showed the

centerline of the Sandy Creek Arm as the boundary between Lot 140 and Lot 52.21

Mr. Smith testified that the boundary shown on the survey was consistent with his

understanding of the boundary between Lot 140 and Lot 52. 22

The sole testifying expert at trial, Mr. Crichton, also testified that he

reviewed property records regarding adjoining lots in the area, specifically, Lots 53

and 54, and those lots contain the same extension language as the Trundle deed,

but there were platted lots between Lots 53 and 54 and the center of Sandy Creek

(that is, if “Sandy Creek” is interpreted as Mr. Young contends it should be, as

opposed to that part of the creek between Lot 52 and Lot 140). 23 In other words,

interpreting the disputed Extended Property language to mean the center of that

part of Sandy Creek that is located between Lot 52 and Lot 140 would not only

18 2 R.R. 218:20-22. 19 Defendant’s Exhibit 30 at TCAD 0007, included in TLS Appendix at Tab 2. 20 Id.; 2 R.R. 219:7-25. 21 2 R.R. 220:6-19. 22 2 R.R. 220:20-24. 23 2 R.R. 160:21-161:11.

Page 20 mean there is no conflict among Mr. Young’s property and Trails End’s and TLS’s

properties, but that interpretation would also harmonize neighboring property

boundaries and not create new boundary conflicts among property owners who are

not parties to this suit. 24

As for Mr. Young’s suggestion that the part of Sandy Creek between Lot 52

and Lot 140 somehow developed or appeared at some point after the 1947 plat,25

Mr. Young points to no evidence to support this claim. And in fact, the 1947 plat

does not even label what constitutes Big Sandy Creek (it refers to the main area of

the creek as Lake Travis), but it does depict the part of the creek running between

Lot 56 and Lots 52, 53, and 54. (Lot 56 was the lot that was eventually re-platted

in 1962 to create Lots 139 and 140). 26 Therefore, TLS and Trails End’s

interpretation does not conflict with the 1947 plat and it harmonizes neighboring

property boundaries, while Mr. Young’s interpretation would cause Lots 52, 53,

and 54 to cut across and conflict with platted properties (and this is true even prior

to the 1962 re-plat).

For all these reasons, the trial court was correct in finding that the Extended

Property does not conflict with Lot 139, Lot 140, the 1.4777-acre tract, or West

24 See TLS Appendix at Tab 1 (Defendant’s Exhibit 20); Appellant’s Appendix at Tab 2 (Plaintiff’s Exhibit 2 (1947 plat)); 2 R.R. 162:10-163:2. 25 See Appellant’s Brief at 20 (“Even if the development of a “gully” took place between the period of 1947, when the legal plat was formed, the botched 1962 re-plat, and the surveys performed in preparation for the case at bar . . . .”). 26 3 R.R. 60:8-13.

Page 21 Darleen Drive,27 and Mr. Young has not shown he is entitled to reversal on his

trespass to try title claims even if he had shown he owned and had superior title to

the Extended Property.

C. Response to Appellant’s Issue No. 1: Mr. Young’s claim that the 1962 plat is void as a matter of law fails for several reasons. Finally, TLS will respond to Mr. Young’s argument that the trial court was

“barred as a matter of law from recognizing the botched 1962 re-plat” and that the

1962 re-plat is void as a matter of law. In support of this argument, Mr. Young

refers to TEX. REV. CIV. STAT. ANN. art. 974a, § 5, arguing that under this statute,

re-plats may not be authorized unless permission is obtained from all affected land-

owners.28 This argument fails for a number of reasons.

First, Mr. Young has waived any argument that the re-plat failed to comply

with this statute, as this argument was never presented to the trial court. See

Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc., 686 S.W.2d 351, 354

(Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (citing State of California

Department of Mental Hygiene v. Bank of Southwest National Association, 354

S.W.2d 576, 581 (Tex. 1962)) (“It is well settled Texas law that an allegation not

contained in the pleadings nor otherwise raised or proven in the trial court cannot

27 See TLS Appendix at Tab 3 (Clerk’s Record at p.184, Findings of Fact 16). 28 Within this issue, Mr. Young also makes the argument that T.L. Smith, Jr. could not convey what he did not own. This argument, however, presumes that Mr. Young is correct as to the interpretation of the Extended Property language. As discussed above, the record does not support Mr. Young’s interpretation, but rather fully supports the trial court’s finding that there is no conflict between the Extended Property and any of the property owned by TLS or Trails End.

Page 22 be raised for the first time on appeal.”). The first time Mr. Young ever made any

reference to this statute was in his initial brief.

Second, the statute on its face applies to “any tract of land situated within the

corporate limits of any city in the State of Texas.” 29 There is nothing in the record

or in Mr. Young’s brief establishing that the property at issue was within a city’s

corporate limits in 1962. Thus, Mr. Young has not shown that the statute even

applies to the property at issue.

Third, Mr. Young fails to offer any legal authority supporting his claim that

a failure to obtain approvals from affected landowners renders the re-plat “void as

a matter of law.” See Appellant’s Brief at 16; TEX. R. APP. P. 38.1(i) (“The brief

must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.”) (emphasis added); Huey v.

Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.) (“Failure to cite

applicable authority or provide substantive analysis waives an issue on appeal.”).

Moreover, the plain text of the statute does not support Mr. Young’s contention, as

it provides that a re-plat “may be vacated . . . at any time before the sale of any lot

therein.”30

29 See Appellant’s Appendix at Tab 3, Sec. 1. 30 Appellant’s Appendix at Tab 3. Specifically, Section 5 reads: “That any such plan, plat or replat may be vacated by the proprietors of the land covered thereby at any time before the sale of any lot therein by a written instrument declaring the same to be vacated, duly executed, acknowledged and recorded in the same office as the plat to be vacated, provided the approval of the City Planning Commission or governing body of such city, as the case may be, shall have

Page 23 Fourth, Mr. Young is asking this Court to find the 1962 re-plat void, but Mr.

Young did not join any of the neighboring property owners whose property

interests would be directly impacted by that decision as parties in this case. See

TEX. R. CIV. P. 39.

And finally, even if the Court were to find that the 1962 re-plat were void as

a matter of law despite all these obstacles, that still would not mean that Mr.

Young prevails in his trespass to try title claims. Mr. Young still had to prove he

had superior title to the Extended Property, which he failed to do, and he would

have to show that the trial court’s interpretation of the Extended Property language

was incorrect, which he has not. As discussed above, the trial court was correct in

concluding that the Extended Property language in the Trundle deed refers to the

center of that portion of Big Sandy Creek located between Lot 52 and Lot 140,

such that there is no conflict between the Extended Property and any of the lots

owned by Trails End and TLS. 31

Accordingly, Mr. Young’s argument that the 1962 re-plat is void as a matter

of law is not only without merit, but it would not support reversal in any event.

been obtained as above provided, and the execution and recordation of such shall operate to destroy the force and effect of the recording of the plan, plat or replat so vacated.” 31 For the same reason, Mr. Young’s argument that T.L. Smith, Jr. improperly attempted to re- plat land already sold and conveyed to Sylvia Trundle also fails.

Page 24 D. Joinder in Trails End’s brief. TLS hereby joins in and incorporates by reference the arguments made in

the initial brief of Trails End regarding Appellant’s remaining issues.

VI. CONCLUSION AND PRAYER Appellees TLS Properties Ltd. and TLS Operating Company, LLC

respectfully request that the District Court’s Final Judgment be affirmed in its

entirety, and that the Court grant all other relief to which they may be entitled.

Respectfully submitted,

/s/ Derek Quick Derek Quick State Bar No. 24072471 STRASBURGER & PRICE, LLP 720 Brazos Street, Suite 700 Austin, Texas 78701 512.499.3600 512.499.3660 – fax derek.quick@strasburger.com

ATTORNEYS FOR APPELLEES TLS PROPERTIES, LTD. AND TLS OPERATING COMPANY, LLC.

Page 25 RULE 9.4 CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of TEX. R. APP. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains 5,335 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).

/s/ Derek Quick Derek Quick

Page 26 CERTIFICATE OF SERVICE This is to certify that on this 22nd day of May, 2015, a true and correct copy of the above and foregoing document was electronically mailed to the parties registered or otherwise entitled to receive electronic notices in this case pursuant to the Electronic Filing Procedures in this Court upon:

Stephen Casey Christopher R. Mugica Casey Law Office, P.C. cmugica@jw.com 595 Round Rock West Drive Emilio B. Nicolas Suite 102 enicolas@jw.com Round Rock, Texas 78681 Jackson Walker L.L.P. stephen@caseylawoffice.us 100 Congress Avenue, Suite 1100 Counsel for Appellant David Young Austin, Texas 78701 Counsel for Appellees Trails End Homeowners Association And Van Keene

W. Thomas Buckle Rick Durapau, Pro Se Jeff Tippens 11907 Misty Brook Drive State Bar No. 24009121 Austin, Texas 78727 Scanalan, Buckle & Young, P.C. rdurapau@gmail.com 602 West 11th Street Pro Se Appellee Austin, Texas 78701 tbuckle@sbylaw.com jtippens@sbylaw.com Counsel for Appellee Trails End Homeowners Association, Inc.

/s/ Derek Quick Derek Quick

1647385.5/SPA/11351/0105/052215

Page 27 NO. 03-14-00535-CV __________________________________________________________

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS __________________________________________________________

DAVID YOUNG Appellant

vs.

TRAILS END HOMEOWNERS ASSOCIATION, INC.; TLS PROPERTIES, LTD.; TLS OPERATING COMPANY, LLC; VAN KEENE; AND RICK DURAPAU Appellees

On Appeal from the 200th Judicial District Court of Travis County, Texas (Honorable Scott H. Jenkins, of the 53rd Judicial District Court, Presiding) Trial Court Cause No. D-1-GN-10-003864 __________________________________________________________

APPELLEES TLS PROPERTIES, LTD. AND TLS OPERATING COMPANY, LLC’S __________________________________________________________

Derek Quick State Bar No. 24072471 STRASBURGER & PRICE, LLP 720 Brazos Street, Suite 700 Austin, Texas 78701 512.499.3600 512.499.3660 – fax derek.quick@strasburger.com ATTORNEYS FOR APPELLEES TLS PROPERTIES, LTD. AND TLS OPERATING COMPANY, LLC

1. Steger & Bizzell Survey (Defendants’ Ex. 20).................................. Tab 1

2. TCAD Map (excerpt from Defendants’ Ex. 30)................................ Tab 2

3. Copy of Findings of Fact and Conclusions of Law............................ Tab 3 Defendants' Exhibit 20

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::::-..:'.T%"• Survey For Trails End ttomeownere Allodcltloll LDta 139 ac 140 . Resubdivlalon No.5, Block fs7 T•ails End Subcllvlli!ln Tnwl& CouriiJ, .,.._ Defendants' Exhibit 30

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CERTIFICATE

I. Jerry Oehler, am lhe GIS Department Director of lhe Travis Central Appraisal District and custod1an of its records. I hereby certify that the attached record(s) are true and correct copies of the original record which is on file at the Trav1s Central Appraisal District

SWORN TO AND SUBSCRIBED before me on the 6th day of March. 2013 to certify which witness my hand and -· .. ···- official seal. - - -- - .. -----

OEB8E STROUsE l.fY COMMISSIOII EXPIAES May 29, 3!15

My Commission Expires on: May 29, 2015

Enclosure: Map 18455 dated 5/22/2012 Map 18455 date range 5/2000- 812008 Map 18455 date range 6/1999-5/2000 Map 18455 date range 5/1985 - 711998

Map 18655 dated 8/30112 Map 18655 date range 12/1999 - 1112000 Map 18655 date range 5/1985 - 12/1999

r o nox !'OUI! 8.11J CKOSS I' ARK DRIVE AUSTIN. 1 F.XAS 7H7fJ.Orlll TUD (Il l) ll6·1J ll rAX (51l1Mll-1171

DEFENDANT'S EXHIBIT 30 TCAD 0002 ;;/I I I •

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TCAD 0007 Filed in The District Court of TraVis County, Texas

JUL 14 2014 BD Al . $ :J5 e. Amalia Rodriguez-Mendoza, C~~· CAUSE NO. D-1-GN-10-003864

DAVID YOUNG, § IN THE DISTRICT COURT § Plaintiff, § § v. § 200™ JUDICIAL DISTRICT § TRAILS END HOMEOWNERS § ASSOCIATION, INC., TLS PROPERTIES, § LTD., TLS OPERATING COMPANY, § LLC, VAN KEENE, and RICK DURAPAU, § § De~ndantL § TRAVIS COUNTY, TEXAS

FINDINGS OF FACT & CONCLUSIONS OF LAW

Pursuant to Rule 297 of the Texas Rules of Civil Procedure, the Court makes the

following findings of fact and conclusions oflaw following the bench trial of this lawsuit.

I. FINDINGS OF FACT

1. The parties to this lawsuit are Plaintiff David Young ("Plaintiff') and Defendants

Trails End Homeowners Association, Inc. (the "Association"), TLS Properties, Ltd. ("TLS

Properties"), TLS Operating Company, LLC ("TLS Operating Company"), Van Keene

("Keene"), and Rick DuRapau ("DuRapau").

2. This lawsuit involves the following six properties in the Trails End Subdivision of

Travis County, Texas:

a. Lot 52, which was platted according to a map of the Trails End

Subdivision in Travis County, Texas that was recorded in the real property records of Travis

County, Texas in 1947 (the "1947 Plat"), a copy ofwhich was admitted in evidence as Plaintiff's

Exhibit No. 2.

b. Lot 139, which was platted according to a map of the Trails End

181 Subdivision in Travis County, Texas that was recorded in the real property records of Travis

County, Texas in 1962 (the "1962 Plat"), a copy of which was admitted in evidence as

Defendants' Exhibit No.6. Lot 139 is properly described in a deed recorded in the real property

records of Travis County, Texas on November I 7, 2008, and admitted in evidence as

Defendants' Exhibit No. I 7 (the "2008 Deed"). Lot 139 is properly depicted in the land survey

prepared by Crichton & Associates, Inc. and admitted in evidence as Defendants' Exhibit No. 21,

(the "20 14 Land Survey"). At all relevant times, Lot I 39 has been suited for use as a preserved

area or parkland.

c. Lot 140 was also platted in the 1962 Plat. Lot 140 is properly described in

a special warranty deed recorded in the real property records of Travis County, Texas on April

21, 1998, and admitted in evidence as Defendants' Exhibit No. 12 (the "1 998 TLS Properties

Deed"). Lot 140 is properly described in the land survey prepared by Steger & Bizzell

Engineering, Inc. and admitted in evidence as Defendants' Exhibit No. 20. At all relevant times,

Lot 140 has been suited for use as a boat launch or other point of access to Lake Travis when

underwater, and as a preserved area or parkland when not underwater.

d. A parcel of land between the extension of the side lines of Lot 52 to the

center of Big Sandy Creek (the "Extended Property").

e. A 1.4777-acre tract of land adjoining Lot 139 (the "1.4777-acre tract"),

which is properly depicted in a 2008 quitclaim deed between TLS Properties and the Association

admitted in evidence as Defendants' Exhibit No. 18 (the "2008 Quitclaim"), as well the 2014

Land Survey. The I .4777-acre tract is suited for use as a preserved area or parkland.

f. West Darlecn Drive, including the portion known as West Darleen Drive

Extension (collectively, "West Darleen Drive''), which was also platted in the 1962 Plat. West

182 Darleen Drive is properly depicted in the 2014 Land Survey. West Darleen Drive is a public

right-of-way used to access Lot 139, Lot 140, and/or the 1.4777-acre tract.

3. In 1962, T.L. Smith, Jr. recorded the 1962 Plat in the real property records of

Travis County, Texas, thereby creating Lots 139 and 140.

4. Plaintiff purchased Lot 52 at least 10 years prior to filing this lawsuit.

5. Pursuant to a special warranty deed recorded in the real property records ofTravis

County, Texas on January 30, 1998, TLS Properties and TLS Operating Company acquired joint

ownership of Lot 139, Lot 140, and the 1.4777-acre tract from T.L. Smith, Jr.'s successors in

interest.

6. Pursuant to the 1998 TLS Properties Deed, TLS Operating Company conveyed all

of its interests in Lot 139, Lot 140, and the 1.4777-acre tract to TLS Properties.

7. During the entire time when it owned Lot 139 and the 1.4777-acre tract, TLS

Properties used those properties as preserved areas or parklands; or TLS Properties leased those

properties to the Association, and the Association used those properties as preserved areas or

parklands.

8. During the entire time when it owned Lot 140, and through the present, TLS

Properties used the property as a boat launch or other point of access to Lake Travis, as a

preserved area, or as a parkland; or TLS Properties leased the property to the Association, which

the Association used as preserved areas or parklands until a time in 2007 or 2008 when Plaintiff

interfered in the Association's negotiations with TLS Properties to purchase Lot 140.

9. During the entire time when it owned Lot 139, Lot 140, and the 1.4777-acre tract,

TLS Properties paid the taxes on those properties.

10. Pursuant to the 2008 Deed, the Association acquired ownership of Lot 139 from

183 TLS Properties.

II. Pursuant to the 2008 Quitclaim, the Association acquired ownership of the

1.4777-acre tract from TLS Properties.

12. Since purchasing Lot 139 and the 1.4777-acre tract in 2008, the Association has

used those properties as preserved areas or parklands; and has paid the taxes on those properties.

13. Plaintiff currently owns Lot 52, as platted and described above.

14. Plaintiff did not offer any credible evidence that he owns the Extended Property,

as described above.

15. Lot 52, as platted, does not conflict with Lot 139, Lot 140, the I .4777-acre tract,

or West Darleen Drive.

16. The Extended Property does not conflict with Lot 139, Lot 140, the 1.4777-acre

tract, or West Darleen Drive.

17. The Association currently owns Lot 139, as platted and described above; and the

1.4777-acre tract as described above.

18. TLS Properties currently owns Lot 140, as platted and described above.

19. Neither Keene nor DuRapau owns, or claims to own, Lots 52, 139, or 140, the

1.4777-acre tract, or the Extended Property.

20. Plaintiff knew about, or was aware of, the existence, public use, and location of

West Darleen Drive at least ten years before he filed this lawsuit.

21. The Association, its members, and the public have continually used West Darleen

Drive as a public right-of-way to access to Lot 139, Lot 140, and the 1.4777-acre tract.

22. The Association, TLS Properties, and TLS Operating Company, respectively,

acquired, leased or used Lot 139, Lot 140, the 1.4777-acre tract, and/or West Darleen Drive in

184 good faith and without knowledge that they might conflict with Plaintifrs actual or purported

real property interests.

23. In or after 2008, Plaintiff entered on, erected a gate on, and placed rocks .and

boulders on a part of West Darleen Drive that runs through or adjacent to Lot 139 and the

1.4777-acre tract, as further described in the 2014 Land Survey, in an effort to block access to

Lot 140.

24. Plaintiff physically, intentionally, and voluntarily entered on Lot 139 and/or the

1.4 777-acre tract in order to construct the above-described blockade.

25. Plaintiff did not have the Association's pennission to enter on Lot 139 or the

1.4 777-acre tract for the purpose of constructing the above-described blockade.

26. Plaintiff did not have the Association 's pennission to construct the above-

described blockade.

27. Plaintiff's above-described blockade restricted the right of the Association and its

members to make full use and enjoyment of Lot 139 and the 1.4777-acre tract.

28. Plaintiffs above-described blockade also restricted the right of the Association

and its members to access Lot 140, which TLS Properties had giv~n them pennission to access.

29. Plaintiff filed this lawsuit on November I, 2010.

30. Plaintiff did not offer any admissible or credible evidence of:

a. business disparagement involving the Association, TLS Properties, TLS

Operating Company, Keene, or DuRapau;

b. tortious interference with prospective contractual relationship involving

the Associati?n, TLS Properties, TLS Operating Company, Keene, or DuRapau;

c. trespass involving the Association, TLS Properties, TLS Operating

185 Company, Keene, or DuRapau;

d. conversion involving the Association, TLS Properties, TLS Operating

Company, Keene, or DuRapau;

e. monetary damages; or

f. exemplary damages.

31. The reasonable and necessary amount of attorneys' fees incurred by the

Association through trial to defend against Plaintiffs declaratory judgment claims, and to

prosecute the Association's declaratory judgment counterclaims, was $50,000.00.

32. The reasonable and necessary amount of attorneys' fees the Association will incur

to defend against Plaintiffs pursuit of an unsuccessful appeal to the Third Court of Appeals for

the State ofTexas of the parties' respective declaratory judgment claims will be $20,000.00.

33. The reasonable and necessary amount of attorneys' fees the Association will incur

to defend against Plaintiffs unsuccessful petition for review to the Supreme Court of Texas

concerning the parties' respective declaratory judgment claims will be $5,000.00.

34. The reasonable and necessary amount of attorneys' fees the Association will incur

to defend against Plaintiffs unsuccessful appeal to the Supreme Court of Texas of the parties'

respective declaratory judgment claims will be $10,000.00.

n. CONCLUSIONS OF LAW

35. Plaintiffs status as a prose litigant before or during trial did not excuse him from

complying with any procedural rules, or from being held to the same standards as a licensed

attorney.

36. The parties' real property dispute was a boundary dispute and, therefore, was

subject to resolution under the Texas Uniform Declaratory Judgment Act, Ch. 37, TEX. CIV .

186 PRAC. & REM. CODE§§ 37.001 et seq.

37. Plaintiff failed to satisfY his burden of proof for his declaratory judgment claim.

38. Plaintiff failed to satisfY his burden of proof for his a claim for removal of cloud

on title and/or suit to quiet title ("suit to quiet title").

39. Plaintiff failed to satisfY his burden of proof for his trespass to try title claim.

40. As a result of the recording of the 1962 Plat, Plaintiff and his predecessors in title

had constructive notice ofthe claim of:

a. the Association and its predecessors in title to title of Lot 139 and the

1.4777-acre tract since 1962; and

b. TLS Properties and its predecessors in title to title of Lot 140 since 1962.

41. As a result of the recording of the 1962 Plat, Plaintiff and his predecessors in title

had constructive notice since 1962 of the claim of T.L. Smith, Jr. and his successors in title to

Lot 139, Lot 140, and the 1.4777-acre tract.

42. As a result of the recording of the 2008 Deed and its preceding chain of title

documents, Plaintiff had constructive notice no later than 1998 that the Association and its

predecessors in title claimed ownership of Lot 139 by title or color of title.

43. As a result of the recording of the 1998 TLS Properties Deed and its preceding

chain of title document, Plaintiff had constructive notice no later than 1998 that TLS Properties

and its predecessors in title claimed ownership of Lot 140 by title or color of title.

44. As a result of the recording of the 2008 Deed and its preceding chain of title

documents, Plaintiff had constructive notice no later than 1998 that the Association and its

predecessors in title claimed ownership of the 1.4777-acre tract by title or color oftitle.

45. The Association was a bona fide purchaser of Lot 139.

187 46. The Association was a bona fide purchaser of the 1.4777-acre tract.

47. Plaintiff did not offer sufficient evidence to raise an issue of fact with respect to

his claim for:

a. business disparagement against the Association, TLS Properties, TLS

Operating Company, Keene, or DuRapau;

b. tortious interference with prospective contractual relationship against the

Association, TLS Properties, TLS Operating Company, Keene, or DuRapau;

c. trespass against the Association, TLS Properties, TLS Operating

Company, Keene, or DuRapau;

d. conversion against the Association, TLS Properties, TLS Operating

Company, Keene, or DuRapau; or

e. exemplary damages against the Association, TLS Properties, TLS

Operating Company, Keene, or DuRapau.

48. Plaintiffs declaratory judgment claim, suit to quiet title, and trespass to try title

claim are all barred by limitations.

49. The Association satisfied its burden of proof for its trespass to try title

counterclaim.

50. The Association satisfied its burden of proof for its declaratory judgment

counterclaim to determine the property description for and boundaries of Lot 139.

51. The Association satisfied its burden of proof for its declaratory judgment

counterclaim to determine the property description for and boundaries ofthe 1.4777-acre tract.

52. The Association satisfied its burden of proof for its declaratory judgment

counterclaim to declare that West Darleen Drive is a public right-of-way is a public right-of-way

188 over which the Association and its members have the right to travel fully and freely.

53. Plaintiff obstructed or interfered with the Association's right to access and use

West Darleen Drive as a public right-of-way by unlawfully blockading West Darleen Drive.

54. Plaintiff also obstructed or interfered with the Association's right to access,

possess, use, and enjoy Lot 139 and the 1.4777-acre tract by unlawfully blockading West

Darleen Drive.

55. Plaintiff trespassed onto Lot 139 and the 1.4777-acre tract.

56. Permanently enjoining Plaintiff from obstructing or interfering with the

Association's ingress and egress over any portion of West Darleen Drive (including both the

paved portion and the unpaved portions of the public right-of-way) is an adequate and

appropriate remedy under the circumstances.

57. Permanently enjoining Plaintiff from trespassing onto, obstructing, or interfering

with the Association's access to - or possession, use, and enjoyment of - Lot 139 and the

1.4777-acre tract is an adequate and appropriate remedy under the circumstances.

58. The Association established its entitlement to an award of attorneys' fees under

Section 37.009 of the Texas Uniform Declaratory Judgment Act, TEX. CIV. PRAC. & REM. CODE

§ 37.009; and it was equitable and just to award attorneys' fees to the Association thereunder.

59. The amount of attorneys' fees awarded to the Association were reasonable and

necessary.

IT IS SO ORDERED.

SIGNED and ORDERED on this~day of (k 4 (

189 APPROVED AS TO FORM AND SUBSTANCE BY:

JACKSON WALKER L.L.P. SCANLAN, BUCKLE & YOUNG, P.C.

By: s ph r R. ugic (TSBN 24027554) W. Thomas Buckle (TSBN 03299000) Emili B. icolas N 24058022) JeffTippens (TSBN 24009121) I 00 Con ss A venue, Suite I I 00 602 West 11th Street Austin, Texas 78701 Austin, Texas 78701 Telephone: (512) 236-2000 Telephone: (512) 478-4651 Facsimile: (512) 236-2002 Facsimile: (512) 478-7750 ATTORNEYS FOR DEFENDANTS TRAILS ATTORNEYS FOR DEFENDANT TRAILS END HOMEOWNERS ASSOCIATION, INC. END HOMEOWNERS ASSOCIATION, INC. AND VAN KEENE

STRAUSBURGER & PRICE, LLP RICK DURAPAU

By: By: --------------------------- Derek Quick (TSBN 24072471) 11907 Misty Brook Drive Katherine McFarland (TSBN 24083980) Austin, Texas 78727 720 Brazos Street, Suite 700 Telephone: (512) 346-4359 Austin, Texas 7870 I Facsimile: n/a Telephone: (512) 499-3600 PROSE I DEFENDANT RICK DURAPAU Facsimile: (512) 499-3660 ATTORNEYS FOR DEFENDANTS TLS PROPERTTES, LTO. ANDTLS OPERATING COMPANY, LLC.

DAVID YOUNG

By: 10336 W. Darleen Drive Leander, Texas 78641 Telephone: (512) 487-5701 Facsimile: n/a PROSE I PLAINTIFF DAVID YOUNG

190 APPROVED AS TO FORM AND SUBSTANCE BY:

.JACKSON WALKER L.L.P. SCANLAN, BUCKLE & YOUNG, P.C.

By: ~~~~~~~~~~~~~ Christopher R. Mugica (TSBN 24027554) By~~ ~ uc ~ Emilio B. Nicolas (TSBN 24058022) JeffTippens (TSBN 24009121) I 00 Congress A venue, Suite II 00 602 West lllh Street Austin, Texas 78701 Austin, Texas 78701 Telephone: (512) 236-2000 Telephone: (512) 478-4651 Facsimile: (512) 236-2002 Facsimile: (512) 478-7750 AITORNEYS FOR DEFENDANTS TRAILS ATTORNEYS FOR DEFENDANT TRAILS END HOMEOWNERS ASSOCIATION, fNC. END HOMEOWNERS ASSOCIATION, INC. AND VAN KEENE

STRAUSBU.RGER & PRICE, LLP RICKDURAPAU

By: By: ~~~~~~~~~~------ Derek Quick (TSBN 24072471) 11907 Misty Brook Drive Katherine McFarland (TSBN 24083980) Austin, Texas 78727 720 Brazos Street, Suite 700 Telephone: (512) 346-4359 Austin, Texas 78701 Facsimile: n/a Telephone: (512) 499-3600 PROSE/ DEFENDANT RICK DURAPAU Facsimile: (512) 499-3660 ATTORNEYS FOR DEFENDANTS TLS PROPERTIES, LTD. AND TLS OPERATfNG COMPANY, LLC.

DAVID YOUNG

By: 10336 W. Dal'leen Drive Leander, Texas 78641 Telephone: (512) 487-570 I Facsimile: n/a PROSE I PLAINTIFF DAVID YOUNG

191 APPROVED AS TO FORM AND SUBSTANCE BY:

JACKSON WALKER L.L.P. SCANLAN, BUCKLE & YOUNG, P.C.

By: By: ~~~-=~~--~--------- Christopher R. Mugica (TSBN 24027554) W. Thomas Buckle (TSBN 03299000) Emilio B. Nicolas (TSBN 24058022) JeffTippens (TSBN 24009121) I00 Congress Avenue, Suite II 00 602 West 11 tli Street Austin, Texas 78701 Austin, Texas 7870 I Telephone: (5 12) 236-2000 Telephone: (5 12) 478-4651 Facsimile: (5 12) 236-2002 Facsimile: (512)478-7750 ATIORNEYS FOR DEFENDANTS TRAILS ATTORNEYS FOR DEFENDANT TRAILS END HOMEOWNERS ASSOCIA TJON, INC. END HOMEOWNERS ASSOCIATION, INC. AND VAN KEENE

STRAUSBURGER & PRICE, LLP RICK DURAPAU

By: By: }(~~~ Derek Quick (TSBN 24072471) 11907 Misty Brook Drive Katherine McFarland (TSBN 24083980) Austin, Texas 78727 720 Brazos Street, Suite 700 Telephone: (512) 346-4359 Austin, Texas 78701 Facsimile: nla Telephone: (5 12) 499-3600 PROSE/ DEFENDANT RICK DURAPAU Facsimile: (5 12) 499-3660 ATIORNEYS FOR DEFENDANTS TLS PROPERTIES, LTD. AND TLS OPERATING COMPANY, LLC.

DAVID YOUNG

By: I 0336 W. Darleen Drive Leander, Texas 78641 Telephone: (512) 487-5701 Facsimile: n/a PRO SE I PLAINTIFF DA VJD YOUNG

192 APPROVED AS TO FORM AND SUBSTANCE BY:

JACKSON WALKER L.L.P. SCANLAN, BUCKLE & YOUNG, P.C.

By: By: ~~~~~~~~~~~~~ Christopher R. Mugica (TSBN 24027554) W. Thomas Buckle (TSBN 03299000) Emilio B. Nicolas (TSBN 24058022) JeffTippens (TSBN 24009121) 100 Congress Avenue, Suite l 100 602 West II th Street Austin, Texas 78701 Austin, Texas 78701 Telephone: (512) 236-2000 Telephone: (512) 478-4651 Facsimile: (512) 236-2002 Facsimile: (512) 478-7750 ATTORNEYS FOR DEFENDANTS TRAILS ATTORNEYS FOR DEFENDANT TRAILS END HOMEOWNERS ASSOCIATION, INC. END HOMEOWNERS ASSOCIATION, INC. AND VAN KEENE

STRAUSBURGER & PRICE, LLP RICK DURAPAU

By: By: K~% ----~~~~~~~~------ Derek Quick (TSBN 24072471) 11907 Misty Brook Drive Katherine McFarland (TSBN 24083980) Austin, Texas 78727 720 Brazos Street, Suite 700 Telephone: (512) 346-4359 Austin, Texas 7870 I Facsimile: nla Telephone: (512) 499-3600 PROSE I DEFENDANT RICK DURAPAU Facsimile: (512) 499-3660 ATTORNEYS FOR DEFENDANTS TLS PROPERTIES, LTD. ANDTLS OPERATING COMPANY, LLC.

DAVID YOUNG

By: l 0336 W. Darleen Drive Leander, Texas 78641 Telephone: (512) 487-5701 Facsimile: nla PRO SE I PLAINTIFF DAVID YOUNG