CAUSE NO. 03-13-00698-CV 

________________________________________ 

IN THE THIRD COURT OF APPEALS 

AUSTIN, TEXAS 

________________________________________ 

DOREEN RUBIO, 

 Appellant, 

v. 

JAMIE WALSH, ET 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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/26/2015 2:10:18 PM JEFFREY D. KYLE Clerk
ii 

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 

 
iii 

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 
iv 

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 

TEX. BUS. & COM. CODE § 26.01 .............................................................................. 2 

TEX. PROP. CODE § 5.021 ........................................................................................... 2 

TEX. R. CIV. P. 67 ....................................................................................................... 2 
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 
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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.” TEX. R.

CIV. P. 67. 

Generally, a conveyance of real property must be in writing. See TEX. BUS.

& COM. CODE § 26.01; TEX. PROP. CODE § 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 
3 

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. 
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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 
5 

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 
6 

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); 
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 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 
8 

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 

 
9 

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 

 
10 

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