## CAUSE NO. 03-13-00698-CV

______________________ __________________ IN THE THIRD CO URT 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 ACCEPTED 03-13-00698-CV 6662975 THIRD COURT OF APPEALS

AUSTIN, TEXAS 8/26/2015 2:10:18 PM JEFFREY D. KYLE

CLERKii TABLE OF CONTENTS INDEX OF AUT HORITIES ..................................................................................... ii I. UNDER THE TEXAS “FAIR NOTICE” RULE, DOREEN PROPERLY PLEADED PAROL SA LE..................................................... 1 II. THE EVIDENCE SHOULD BE REVIEWED FOR FACTUALLY INSUFFICIENCY AS WELL AS LEGAL INSUFFICIENCY. ............... 4 III. SANCTIONS CANNOT BE NO T BASED UPON TRIAL COURT’S INHERENT AUTHORITY. ...................................................... 5 IV. CONCLUSION AND PRAYER. .................................................................. 8 CERTIFICATE OF CO MPLIANCE ......................................................................... 9 CERTIFICATE OF FILI NG AND SERV ICE .......................................................... 9iii 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.—Houst on [14th Dist.] 2010, orig. proceeding) ..................................................................................................... 7iv Kugle v. DaimlerChrysler Corp ., 88 S.W.3d 355 (Tex. App.—San Ant onio 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 An tonio 1988, no writ) ............................ 5 Troxel v. Bishop, 201 S.W.3d 290 (Tex. App.—Da llas 2006, no pe t.) ...................................... 4 Walker v. Walker, 488 S.W.2d 171 (Tex. Civ. App.—Wac o 1969, writ ref’d n.r.e.) .................. 2 Zep Mfg. Co. v. Anthony , 752 S.W.2d 687 (Tex. App.—Houston [1 st 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 ....................................................................................................... 2APPELLANT’S MOTION FOR REHEARING
I. UNDER THE TEXAS “FAIR NOTICE ” RULE, DOREEN PROPERLY PLEADED PAROL SALE. This Court’ opinion asserts that paro l sale was not pleaded and refuses to consider the issue. Op. at 5. Howeve r, 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 Wa lsh 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 mortg age, 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 he r 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 plead ing the nature and basic issues of the controversy and what tes timony 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 e xpected 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 libera lly in favor of the pleader. Id . at 897, citing2 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) pa yment of the consideration, (2) possession by the vendee, (3) the making by the vendee of valuable and permanent improvements upon the land with the cons ent of the vendor, or, without such improvements, the presence of such fact s 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 ag reement 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 re quired 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.2d3 171, 173 (Tex. Civ. App.—Waco 1969, writ re f’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 ba rred 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 he rself at trial, was not able to apprise the court of the correct legal standard to a pply, but the law applie s nonetheless. The facts were presented at the trial. This C ourt 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 mort gage of this property as consideration. Doreen has been in continuous possession of the pr operty since 1993. Further, Doreen made valuable and permanent improvements to the prope rty. The evidence is overwhelming in support of a pa rol sale and the case shoul d be rendered in favor of Doreen on this basis.4 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 doe s not address the evidence supporting parol sale. This C ourt’s opinion does not address the factual sufficiency of the evidence supporting any of Doreen’s complaints. As an alternative to parol sale, the evid ence 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 real ty are the same as those for parol sales of realty, except there mu st be evidence of gift, and of c ourse 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 hom es 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 must5 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 consen t; and (3) permanent and valuable improvements made on the property by the donee with the donor ’s knowledge or consent or, without improvements, the exis tence 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 be cause 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 th e 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 th at the sanctions must be reversed. While a trial court has authority to impose sanc tions based upon inherent authority, such sanctions are not appropriate without noti ce 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 in herent authority to order sanc tions. Op. at 7. However,
In re Bennett involved a show cause order that pr ovided the parties with notice that6 the court was considering the exercise of its inherent authority and an opportunity to be heard on the matters delineate d in the show cause order. Id . at 37. In this case, the only motion for sanctions on file was Jamie Walsh’s Mo tion to Strike Discovery and for Sanctions. CR233-36. The motion was exclusively based upon the assertion of Doreen’s alleged failure to respond to discove ry requests. Id . There was no mention in that motion of invoking the trial court’s inherent aut hority to sanction. Id . There was no mention in that motion of a ny 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 att ached evidence demonstrating that Doreen did, in fact, respond and fully comply w ith the discovery requests in writing and by making the documents available for inspec tion. CR 264-80. The Order Imposing Sanctions specifically bases its sancti ons upon Jamie Walsh’s Motion to Strike Discovery and for Sanctions. CR 288. “Notice is essential for the pr oper 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 au thority to impose sanctions, and may do so sua sponte, the trial court is not permitte d to sanction out-of-court conduct without first providing notice and an o pportunity 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);7 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 resp ect 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 w ith 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.—Hou ston [14th Dist.] 2010, orig. proceeding) (“Due process, on a fundament al 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 sanc tions 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 demonstrat es that the sanctions order should be reversed. Doreen was not placed on notice of any other basis for sanctions other8 than the motion on file regarding discover y 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). Sin ce the only basis for this Court to sustain the sanctions order is the trial cour t’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 RUBIO9 CERTIFICATE OF COMPLIANCE In accordance with Texas Rule of A ppellate Procedure 9.4, I hereby certify that this document contains 1,890 words. /s/ Tracy J. Willi Tracy J. Willi10 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 serv ed on opposing counsel by the same manner or, if counsel is not registered for servi ce through the electronic filing system, then by facsimile or U.S. Mail to the parties a nd 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 Stew art & Ott, PLLC 2901-D Bee Caves Rd. Austin, TX 78746 512-328-8355 512-328-8413 (Fax) Appellee Pro Se : Emmet Walsh, an individual, s on of Joan Walsh, deceased 2215 Silver Holly Lane Dallas, Texas 75082 Appellee Pro Se : Ellen Thornton, an individual, da ughter of Joan Walsh, deceased and as Trustee for Kevin Walsh, incapacitated son of Joan Walsh, and as Trustee for Lauren Loprintze-Walsh, Torrance Rubio, a nd Gabriel Rubio, biological children of Doreen Rubio 224 W. 259th Street Bronx, New York 10471

/s/ Tracy J. Willi Tracy J. Willi