NOS.: 04-14-00824-CV 

 04-15-00006-CV 

 

 IN THE COURT OF APPEALS 

 FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO 

ROBERT TYSON, 

CARL AND KATHY TAYLOR, 

LINDA AND RON TETRICK, 

JIM AND NANCY WESCOTT, and 

PAUL AND RUTHE NILSON, 

 

 Appellants/Plaintiffs, 

 -againstROBERT N. FREEMAN II, 

DEMAR BOREN 

And LORENA YEATES, Husband and 

Wife, 

 Appellees/Defendants. 

 

 

 

Appeal from the 198th Judicial District Court 

Bandera County, Texas 

 

 

 AMENDED BRIEF FOR APPELLANTS 

 

 

 

CAROLE K. BOYD 

 Attorney for Plaintiffs/Appellants 

 15751 Highway 16 North 

 Medina, Texas 78055 

 (830) 589-7587 

ACCEPTED

04-14-00824-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/10/2015 11:27:08 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/10/2015 11:27:08 AM KEITH E. HOTTLE Clerk
2

Fax: (830) 589-7598 

E-mail: ckbesq@hctc.net

 SBN: 00786793 

 ORAL ARGUMENT REQUESTED 

 IDENTITY OF PARTIES AND COUNSEL 

Appellants/Plaintiffs 

Robert Tyson 

Carl and Kathy Taylor 

Linda and Ron Tetrick 

Jim and Nancy Wescott 

Paul and Ruthe Nilson 

Counsel for Appellants 

Carole K. Boyd 

 15751 Highway 16 North 

Medina, Texas 78055 

Appellees/Defendants 

Robert N. Freeman, II 

Demar Boren 

Lorena Yeates 

Counsel for Appellees 

C. Dixon Mosty 

Mosty Law Firm 

222 Sidney Baker South, Suite 400 

Kerrville, Texas 78028 

Counsel for Robert N. Freeman, II 

Stephen B. Schulte 

Stephen B. Schulte, P.C. 

Main Plaza One 

820 Main Street, Suite 100 

Kerrville, Texas 78028 

Counsel for Demar Boren and Lorena Yeates 
3

TABLE OF CONTENTS 

Page 

IDENTITY OF PARTIES AND COUNSEL ........................................ 2 

TABLE OF CONTENTS ................................................................ 3 

INDEX OF AUTHORITIES ............................................................. 4 

STATEMENT OF THE CASE ......................................................... 5 

STATEMENT REGARDING ORAL ARGUMENT ................................. 6 

ISSUES PRESENTED .................................................................. 6 

STATEMENT OF FACTS ............................................................. 7 

SUMMARY OF THE ARGUMENT ................................................... 8 

ARGUMENT ............................................................................. 9 

I. The District Court Erred in Rejecting All of Appellants Summary 

Judgment Evidence ......................................................... 9 

II. The District Court Erred in Granting Summary Judgments to 

Appellees Prior to Completion of Integral Discovery .................. 11 

III. The District Court Erred in Denying Appellants’ Motion for 

Opportunity to Remedy and Rehearing .................................. 13 

IV. The District Court Erred in Granting Appellees’ Motions 
4

For Severance ............................................................... 14

 V. The District Court Erred in denying plaintiffs’ Motion to Withdraw 

 Any Deemed Admissions, having Granted only the second set of 

 Admissions withdrawn. 15

CONCLUSION AND PRAYER ........................................................ 21

APPENDIX (All documents contained in Clerk’s Record and Reporters’ Records) 

INDEX OF AUTHORITIES 

CASES: 

Dubois v. Harris County 

866 S.W. 2d 787, 791 (Tex.App.-Houston[14th Dist.], 1993 ........... 9 

McConathy v. McConathy 

869 S.W.2d, 341 (1994)...................................................... 10,13 

Deerfield Land Joint Venture v. Southern Union Realty Co. 

758 S.W.2d 608 (Tex.-App. – Dallas 1968, writ denied) ............... 10 

Perry v. Houston Independent School District 

902 S.W.2d 544 (Tex. App.-Houston, 1995) ............................. 10 

Kingston v. Helm 

82 S.W.3d 755 (Tex. App.-Corpus Christi 2002) ........................ 11 

Leyendecker & Associates v. Wechter 

683 S.W.2d 369, 375 (Tex. 1984) ......................................... 11 

McInnis v. Mallia 

261 S.W. 3d 197, 200 (Tex. App.-Houston [14th Dist.] 2008 .......... 11 

Madison v. Williamson 

241 S.W. 3d 145, 155 (Tex.App.-Houston [1s Dist.] 2007, pet. denied 12 

Garcia v. Martinez, 988 S.W. 2d 219, 222 (Tex. 1999) ........................ 12 

OAIC Commercial Assets, L.L.C. v. Stonegate Vil., L.P. 

234 S.W.3d 726, 747 (Tex. App.- Dallas 2007, pet. filed) ............... 13 

Lynette Miller v. Barry Keyser 

90 S.W. 3d 712 (Tex. 2002) .................................................. 13 

Castleberry v. Branscum et al. 

721 S.W.2d 270 (Tex.1986) .................................................. 13 

Morris v. Northrop Grumman Corp. 

37 F.Supp.2d 556,580 (E.D.N.Y. 1999) .................................... 14 

State Dep't of Highways & Pub. Transp. v. Cotner 

845 S.W.2d 818, 819 (Tex. 1993) ........................................... 15

Marino v. King, 55 Tex. Sup. Ct. J.66, 355 SW3d 629 (Tex. 2011) ............. 18, 19

Wheeler v. Green, 157 S. W. 3d 439 at 443 (Tex. 2005) ..................... 18

Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per curiam) ............... 18
5

Sanders v. Harder, 227 S.W.2d 206, 208 (Tex. 1950) ................................ 18

U.S. Fid. Guar. Co. v. Goudeau, 272 S.W.3d. 603, 610 (Tex. 2008.) ............... 18

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 

 (Tex. 1991.) ............................................................................. 19 

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 214-42 (Tex. 1985) ... 19 

RULES: 

Texas Rules of Civil Procedure, Rule 166(a)(i) ..................................... 

11 Texas Rules of Civil Procedure, Rule 166(a)(f) ..................................... 13

TEX. R. CIV. P. 198.1 ................................................................ 18

TO THE HNORABLE FOURTH COURT OF APPEALS: 

Statement of the Case 

Nature of the case Plaintiffs were life-time lease holders in a senior citizen retirement 

Community originally called “Las Aves Retreat” and later, under 

new ownership, “El Viaje.” CR 38. The leases were issued to 

Plaintiffs by Demar Boren and Lorena Yeates, husband and wife 

managers at the premises, under the authority of Robert N. 

Freeman, II, attorney, manager and a prior owner of Medina 

Livestock Sales Company, LTD. CR 38, 39. The new owners, 

through Bankruptcy Court, had the leases declared unenforceable 

and, under Texas law, deemed to be tenancies at will. CR 40, 

293316. The Plaintiffs were issued letters of termination of their 

leases and had to vacate the premises or face eviction. CR 42, 318. 

Suit below is for violation of the DTPA, Common Law Fraud, 
6

Statutory Fraud, Fraudulent Inducement, Negligent 

Misrepresentation, Negligence and Gross Negligence against 

individuals and the entity Medina Livestock Sales Company, LTD. 

CR 36, Tab 10. 

Trial Court 198th Judicial District Court, Bandera County 

 Hon. Rex Emerson 

Trial Court’s 

Disposition Plaintiffs’ summary judgment evidence was excluded (CR 328-

331, Tab 26), summary judgment granted to all individual 

Defendants (CR 448 (Tab 30; CR 449, Tab 31) and 

individuals Defendants’/Appellees’ motions for severance were 

granted. CR 490, Tab 40; CR 494,495. Plaintiffs’/Appellants 

motion for Remedy and Rehearing was denied. CR 491, Tab 41. 

Statement Regarding Oral Argument 

Because of the several rulings, individual defendants motions having been 

brought simultaneously but Orders being issued at different times, and the confusion that 

has surrounding the identification of Appellees in this matter, as well as other 

administrative issues which hopefully will be resolved shortly, it is felt for the Court to 

have these matters clarified and put into time sequence, and to craft an opinion that is 

consistent with the issues and facts, oral argument would be appropriate and helpful. The 

issues here are important ones, worthy of the Court’s full consideration. The District 

Court’s Orders denying summary judgment evidence, denying re-hearing and granting 
7

severance in a case where clearly the case law and Rules dictate otherwise is erroneous 

and should be corrected in the administration of justice. 

Issues Presented 

1. Did the District Court err in rejecting Plaintiffs’ Summary Judgment evidence? 

2. Did the District Court err in granting Summary Judgment to all individual 

Defendants before completion of discovery? 

3. Did the District Court err in denying Plaintiffs’ Motion for Opportunity to 

Remedy and for Rehearing? 

4. Did the District Court err in granting severance of individual Defendants? 

Statement of Facts 

Appellants’ First Amended Petition alleges that Appellants were life-time leasees 

of premises which they leased in a senior citizen community located in Medina, Texas, 

then known as Las Aves Retreat, paying on average a lump sum of $25,000 per lot. On 

the lot the Appellants were able to place a park model home, sheds, decks, or simply park 

a motor home there. Each lot had utilities and became a permanent residence for 

Appellants who were elderly veterans on social security incomes. Maintenance fees were 

fixed at $500/year which enabled Appellants to know what their retirement expenses 

would be to a great extent, for the remainder of their lives. CR 38-40, Tab 10. 

Demar Boren and Lorena Yeates (hereinafter “Boren and Yeates”), husband and 

wife, were the initial management team for the premises, hired by and under the 

supervision and authority of Robert N. Freeman, II (hereinafter “Freeman”.) Boren and 

Yeates marketed the lots and sold to the Appellants the lifetime leases on behalf of 
8

Freeman and his company and at his direction, assuring Appellants that they were legal 

and binding. CR 39, 42 (Tab 10). Freeman was represented to Appellants as a real estate 

attorney from Laredo, and as owner of the premises. Appellants did not have legal 

representation when they signed the lease agreements, but felt assured of the legality of 

the documents since they knew Freeman to be a real estate attorney. Freeman visited the 

property from time to time and met with some of the Appellants. CR 43-48, Tab 10. 

Eventually, in or about 2008, Robert Freeman effected a sale of the premises to an entity 

known as El Viaje Retreat, LLC, owned and operated by Susan Venus and Anne 

Blankenship, taking back a purchase money mortgage. CR 39-40, Tab 10. He then 

transferred title of the premises from Medina Livestock Sales, Company, LTD to Listo 

Corporation, another of his entities. 

In September 2012 the new owners filed for bankruptcy in order to try to avoid 

the leases of Appellants and others who held lifetime leases at El Viaje. In July 2013 

Judge Craig A. Gargotta held that the lifetime leases of Appellants and other residents of 

the retreat were not legal in Texas, but were deemed to be tenancies at will and could be 

rejected and terminated. CR 292-317, Tab 23. Shortly thereafter, the Appellants were 

given written notice that their leases were terminated. CR 318, Tab 23. Appellants lost 

their life’s savings as they could not get their investments back on their homes that they 

had established over the years and found themselves forced to move from the retreat, 

losing their investments and sustaining substantial damages. CR 42-48, Tab 10. 

Appellants brought the instant litigation alleging violation of the Deceptive Trade 

Practices Act, and for Common Law Fraud, Statutory Fraud, Fraudulent Inducement, 

Negligent Misrepresentation, Negligence, and Gross Negligence. CR Tab 10 
9

Summary of the Argument 

Attorneys for individual Appellees both moved for summary judgment in District 

Court, and moved to have Appellants’ summary judgment evidence excluded. Argument 

was made by the attorney for Freeman, Dixon Mosty, that excerpts from deposition 

transcripts were not authenticated and thus could not be summary judgment evidence. He 

also objected to a Bankruptcy Court transcript and resultant Order, and an 

unauthenticated letter from the attorney for the Debtor in Bankruptcy (the subsequent 

owner of the premises then known as El Viaje Retreat, LLC) to residents at El Viaje 

Retreat, including Appellants. 

The Court, having heard argument from Mr. Mosty, having reviewed his 

submission which was handed to the court and counsel at the start of the hearing, and 

taking into account the case being cited by Mr. Mosty upon which his argument was 

based, rejected Appellants’ evidence and thus granted summary judgments to all 

individual plaintiffs. 

The case relied upon by Mr. Mosty was a 1993 Court of Appeals case. In January 

1994 the Texas Supreme Court, taking up the same issue, found authentication 

unnecessary. Appellants then moved for an opportunity to cure (the unauthenticated 

letter, a form defect) and re-hearing on having all evidence exclude. Appellants’ motion 

was wrongfully denied. 

Individual defendants, at the same hearing, had moved for severance; their 

motions were wrongfully granted. 

Appellants underlying matter was thus eviscerated, as it was the individuals who 

have, pursuant to case law, the liability, and who also have the means to compensate 

Appellants for the resultant damages at the hands of these individuals. 
10

Argument 

1. The District Court Erred in Rejecting all of Appellants’ Summary Judgment 

Evidence.

The District Court ruled that all of Appellants’ Summary Judgment Evidence should 

be rejected, presumably pursuant to Appellees’ argument. No explanation was offered by 

the Court. By doing so, Appellants had virtually no means of opposing the summary 

judgments. The argument of counsel for Freeman, C. Dixon Mosty, was based upon the 

case of Dubois v. Harris County, 866 S.W. 2d 787, 791 (Tex.App.-Houston[14th Dist.], 

1993.) which found unauthenticated excerpts from transcript to be inadmissible as 

evidence for summary judgment proofs. In January, only a month after that decision, the 

Supreme Court of Texas, in McConathy v. McConathy, 869 S.W.2d, 341 (1994) held 

otherwise, overturning the underlying case of Deerfield Land Joint Venture v. Southern 

Union Realty Co., 758 S.W.2d 608 (Tex.-App. – Dallas 1968, writ denied) relied upon by 

Dubois. Thus, Appellees cited bad law and the District Court, without comment or 

explanation, ruled against Appellants and dismissed all of their evidence. RR (Paula 

Beaver) 10. Counsel for Appellees also argued that Appellants could not use their own 

answers to discovery as summary judgment evidence. However, a non-movant may use a 

movant’s own exhibit against the movant to establish the existence of a fact question. 

Perry v. Houston Independent School District, 902 S.W.2d 544 (Tex. App.-Houston, 

1995). Appellants had argued that they believed the corporate entity and Freeman to be 

one and the same. Anything argued by counsel for Appellants after their Summary 

Judgment evidence was excluded, though, was not able to be considered (Rule 166a[i]). 

There were issues raised by Appellees’ counsel contesting individual liability and statute 

of limitations. These issues were heard by the Judge, but no response by 
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Plaintiffs/Appellants’ counsel could be considered, and there were valid and important 

responses to be considered. Although counsel attempted to address the issue of statute of 

limitations, because the Appellants’ evidence was not considered, it remained to be 

proven that Plaintiffs/Appellants only knew of the illegality of their leases when the 

Bankruptcy Judge opined that they were not enforceable leases in Texas, but rather 

tenancies at will and that they could be terminated and were unenforceable. This came 

about well within the statute for Plaintiffs’ time frame to bring suit. Likewise, there was 

case law stating that individuals had liability whether they knew or not that what they 

were promoting was illegal. It is well established in Texas case law that a corporate 

agent can be personally liable for tortious acts which he directs or participates in during 

his employment. Kingston v. Helm, 82 S.W.3d 755 (Tex. App.-Corpus Christi 2002); 

Leyendecker & Associates v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984). This was not 

able to be introduced or considered as Plaintiffs/Appellants had no admissible evidence, 

and without such, Summary Judgments had to be granted against them. 

Defendants/Appellees motions, also, were defective in that they were not specifically 

address or labeled as No-Evidence Motions. Plaintiffs/Appellants therefore had no notice 

of what their burden of proof was on going into the hearing, and assumed that they were 

traditional motions for Summary Judgment. The Court, though, treated them as NoEvidence Motions. This was an additional factor in the devastating effect of excluding 

Plaintiffs/Appellants’ evidence. 

2. The District Court Erred in Granting Summary Judgments to Appellees 

prior to Completion of Integral Discovery.

Appellants, both in their opposition papers and in open Court, stated that Summary 

Judgment was not ripe because the deposition of Freeman, a critical event to this matter, 
12

had not yet been taken. CR 289, 290; RR (Paula Beaver) 16-18. Appellants did not

request a continuance because of reliance upon case law and Rules which denote when 

summary judgment is appropriate. Texas Rules of Civil Procedure, Rule 166(a)(i) allows 

for a summary judgment motion to be made after “adequate time for discovery.” 

According to the comment to Rule 166(a)(i), “a discovery period set by pretrial order 

should be adequate opportunity for discovery unless there is a showing to the contrary, 

and ordinarily a motion under paragraph (i) would be permitted after the period but not 

before.” McInnis v. Mallia, 261 S.W. 3d 197, 200 (Tex. App.-Houston [14th Dist.] 2008, 

no pet. The trial court’s determination that there has been adequate time for discovery is 

reviewed above for abuse of discretion. In the instant matter, there was no statement 

whatsoever from the District Court as to whether summary judgment was ripe because of 

adequate time for discovery having been had. A trial court abuses its discretion if it acts 

in an arbitrary or unreasonable manner ‘‘without reference to any guiding rules or 

principles.” Madison v. Williamson, 241 S.W. 3d 145, 155 (Tex.App.-Houston [1s Dist.] 

2007, pet. denied (quoting Garcia v. Martinez, 988 S.W. 2d 219, 222 (Tex. 1999). When 

Summary Judgment motions were made, Summary Judgment relief was not appropriate; 

the discovery period had not run, and the deposition of Freeman was of upmost 

importance to the determination of his liability and authority of his management. Until 

these issues were clarified, it was impossible to determine which individual 

defendants/Appellees might have liability, and to what extent. Additionally, when 

depositions of Boren and Yeates where sought by counsel for Appellants, a motion was 

made to quash. CR 81-90, Tag 19. Those depositions were sought prior to taking the 

deposition of Freeman for strategic purposes, and the refusal for compliance with agreed 
13

upon dates was based upon the statement by counsel that they would be a waste of time. 

All other written discovery had been taken. When Appellants finally set a date when no 

response came from Appellees as to a date, all individuals made a motion to quash. When 

the Court asked if Appellants had requested a continuance by motion, it was answered 

that, there was no formal request for a continuance in opposition papers, but it was 

stressed that discovery was not complete and Summary Judgment, therefore, was not ripe 

as there were facts in dispute that required the deposition of Freeman. RR (Paula Beaver) 

16-28. In any event, no continuance was granted, and there was no factual determination 

or further discussion by the Court as to why Summary Judgment would be granted 

notwithstanding incomplete discovery. 

3. The District Court Erred in Denying Appellants’ Motion for Opportunity to 

Remedy and Rehearing. 

By having rejected Appellants’ Summary Judgment evidence in its entirety, the 

District Court had no evidence before it in opposition to the Summary Judgment motions 

brought by the individual defendants. However, the Court had an opportunity upon the 

return date of Appellants’ motion for Remedy and Rehearing to correct their mistake of 

law, and allow Appellants a rehearing on the Appellees’ motions. OAIC Commercial 

Assets, L.L.C. v. Stonegate Vil., L.P., 234 S.W.3d 726, 747 (Tex. App.- Dallas 2007, pet. 

filed) (“The sole purpose of a motion for rehearing is to provide the court an opportunity 

to correct any errors on issues already presented.”) At that time, Appellants made the 

court aware of case law evidencing the fact that Appellants’ Summary Judgment evidence 

was admissible (RR 4-5: McConathy v. McConathy, 869 S.W.2d 341 [Tex. 1994]) , as 

well as case law whereby Appellants had viable claims against individual defendants for 

liability (RR 12: Lynette Miller v. Barry Keyser, 90 S.W. 3d 712 [Tex. 2002]) See also 
14

Castleberry v. Branscum et al., 721 S.W.2d 270 (Tex.1986.). In other words, Appellants’ 

desire for a rehearing was not rhetorical in nature, but a valid assertion that the individual 

defendants must remain in the case in chief. The Court also had the opportunity to allow 

Appellants to remedy any defects of form. TRCP 166(a)(f). The District Court 

Judge stated in Court on the motion that he had reviewed the transcript of Lorena Yeats 

and that his holding still stood as previously Ordered. The Judge did not state that he 

reviewed any other of the evidence submitted by Appellants which was previously 

rejected, or give any rationale for his holding. 

The mistake of law upon which Appellants’ evidence was excluded not only 

denied Appellants the ability to defend the Summary Judgment motions, but highly 

prejudiced the outcome of their subsequent motion for rehearing and remedy. The 

District Court seemingly was not going to change its ruling no matter what evidence was

then set forth before it by Appellants. This amounted to a continued abuse of discretion 

by the District Court in disregard of case law, Rules and procedure. Appellants should 

have been granted a rehearing as counsel for Freeman’s admission that there was 

subsequent case law which invalidated his own submission of case law was clearly the 

deciding element in the Court’s holdings on Summary Judgment and on that basis alone a 

rehearing should have been granted. 

4. The District Court Erred in Granting Appellees’ Motions for Severance. 

Severance should only be granted if it will further the administration of justice. 

“Relevant considerations in determining whether to sever a party or claim may 

include 1) whether the claims arise out of the same transaction or occurrence; 2) 

whether the claims present common questions of law or fact; 3) whether judicial 
15

economy would be served; 4) whether prejudice could be avoided through severance; 

and 5) whether the separate claims require different witnesses and documentary 

proof.” Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556,580 (E.D.N.Y. 

1999). A claim may be properly severed only if: (1) the controversy involves more 

than one cause of action, (2) the severed claim is one that would be proper if 

independently asserted, and (3) the severed claim is not so interwoven with the 

remaining action that they involve the same facts and issues. State Dep't of Highways 

& Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993). In this case the 

severance of the claims against the individual defendants were not only inextricably 

interwoven with the remaining action, but could not stand along, as all individuals 

were agents of the corporate entity. The severance was only to make the summary 

judgments in favor of the individuals instantly appealable and to divide the litigation 

into three separate actions. In doing so, as was well known to opposing counsel and 

the Court, it placed an insurmountable financial burden on Appellants. Appellees are 

fully aware that Appellants have lost their life’s savings over this situation and have a 

financial hardship which precludes such expenditures. Appellants are seeking justice 

on a virtual shoestring, and to have multiple cases to be appealed at once would be 

financially impossible for them. Appellants have alleged serious damages at the 

hands these individual defendants which, by law, are compensable. However, if the 

Court makes it untenable for them to proceed, then justice would go out the window, 

and that is not the intention of the Rules, the law, or this judicial system. There was 

no compelling reason for severance except to create a hardship for Appellants, 

severance was an abuse of discretion, and should not have been granted. 

5. The District Court erred in Denying Plaintiffs’ Motion to Withdraw
16

 Any Deemed Admissions, having Granted only the second set 

 Withdrawn.

During summary judgment argument as well as in the motion papers of defendant 

Robert Freeman, his counsel argued that plaintiffs were late in submitting answers to 

admissions, and that those admissions were deemed admitted. Further, it was argued 

that defendant would seek to confirm that the answers were “deemed admitted” although 

in his motion, defendant utilized answers other than the ones he deemed admitted. With 

this in mind, and it having a certain effect on the outcome of this litigation, plaintiffs 

sought, by motion, to withdraw any deemed admissions. 

Counsel for Defendant Freeman initially served what he referred to as “integrated 

discovery” upon five plaintiffs (Robert Tyson, Carl Taylor, Kathy Taylor, Jim Wescott 

and Nancy Wescott, sent on March 12, 2014. This consisted of a packet of admissions, 

interrogatories and document production requests. Answers were due April 14, 2014. 

Plantiffs Carl and Kathy Taylor had moved to South Carolina to work in an RV 

park, having lost their home in Medina at El Viaje due to the very issues involved in the 

instant litigation. They use a post office box in Medina and their mail is forwarded, as 

they do not now have a permanent residence. By the time the discovery was received by 

the Taylors and they tried to gather all of the documents requested going back some 

thirteen years, and then forwarded the answers and documents back to counsel, it was 

over the deadline for answering. 

Plaintiff’s counsel called counsel for defendant’s office (counsel for defendant 

never personally has taken a phone call), informed the office that answers and documents 

would be late because of the distance and huge amount of documents produced, and said 

that once the documents were professionally copied, the discovery would be hand 
17

delivered. There was no objection as to timing from counsel for defendant. Discovery 

was produced and delivered by hand on May 1, 2014. All interrogatories were answered, 

all admissions were answered, and all relevant documents were produced for all 

plaintiffs. 

On April 28, 2014 a second set of 4 packets of integrated discovery was sent out 

by defendant’s counsel for plantiffs Ruthe Nilson, Paul Nilson, Linda Tetrick and Ron 

Tetrick. The second set of answers were due June 2, 2014.

The plaintiffs had sent to their counsel their responses, which had to be put into 

typed format and copied. Those responses should have been served in a timely manner, 

except for the unfortunate fact that counsel found herself in the hospital on May 31 with a 

very serious leg injury with which she could have lost her leg. Hospitalization lasted the 

better part of a week, and when she returned home it was hooked up to a machine with 

home nursing care. Virtually incapacitated and bed-ridden, counsel lost two entire 

months of practice. Despite this circumstance, a call was immediately placed to the 

offices of counsel for defendant Freeman, to inform them of the situation, and that as 

soon as possible, responses would be sent. On or about June 27, 2014 defendant’s 

counsel sent a fax to plaintiffs’ counsel saying that discovery was late and that he would 

seek sanctions. On June 30, 2014 plaintiffs’ counsel sent a fax back reminding him that 

she was in the hospital and had not been able to do any work until that week. Exhibits 

had been copied, and the answers needed to be typed and were promised by within the 

week (see Exhibit “A” attached hereto.) On July 7, 2014 the second set of discovery 

responses were served. Counsel, a sole practitioner, with no one else to attend to this 
18

requirement and between nursing care, unhooked the machine, hand delivered them to 

the offices of counsel for defendant Freeman. 

Knowing that the admissions, if deemed admitted, would be contradictory to 

interrogatory answers, documents, and the facts, counsel for plaintiffs moved to have the 

deemed admissions withdrawn. No opposition papers were submitted by defendant’s 

attorney. At the hearing plantiffs’ counsel advised Judge Emerson of the Texas Supreme 

Court case of October 21, 2011 (Marino v. King, 55 Tex. Sup. Ct. J.66, 355 SW3d 629 

(Tex. 2011). This case was on point in several respects. First, it opined on p. 5 of the 

opinion that requests for admissions were intended to simplify trials. “They are useful 

when ‘addressing uncontroverted matters or evidentiary ones like the authenticity or 

admissibility of documents.’, quoting Wheeler v. Green, 157 S. W. 3d 439 at 443 (Tex. 

2005). “They may be used to elicit ‘statements of opinion or of fact or of the application 

of law to fact.’” TEX. R. CIV. P. 198.1. In the Marion case, the requests essentially 

required the plaintiff to admit the validity of defendant King’s claims and concede her 

defenses- matters King knew to be in dispute. “Requests for admissions were never 

intended for this purpose.” Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per 

curiam) ( quoting Sanders v. Harder, 227 S.W.2d 206, 208 (Tex. 1950) (stating that 

requests for admission were ‘never intended to be used as a demand upon a plaintiff or 

defendant to admit that he had no cause of action or ground of defense.’)”. “As we have 

previously observed, requests for admission should be used as ‘a tool, not a trapdoor.’ 

U.S. Fid. Guar. Co. v. Goudeau, 272 S.W.3d. 603, 610 (Tex. 2008.)’” “And when 

admissions are deemed as a discovery sanction to preclude a presentation of the merits, 

they implicate the same due process concerns as other case-ending discovery sanctions. 
19

Wheeler, 157 S.W.3d at 443 (citing TransAmerican Natural Gas Corp. v. Powell, 811 

S.W.2d 913, 917-18 (Tex. 1991.)” 

The Marino holding goes on to state that absent flagrant bad faith or callous 

disregard for the rules, due process bars merits-preclusive sanctions. “Although trial 

courts have broad discretion to permit or deny the withdrawal of deemed admissions, 

they cannot do so arbitrarily, unreasonably, or without reference to guiding rules or 

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 214-42 (Tex. 

1985).” “Constitutional imperatives favor the determination of cases on their merits 

rather than on harmless procedural defaults. In Marino, there was no evidence of 

“flagrant bad faith or callous disregard for the rules, and nothing to justify a presumption 

that Marino’s defense lacks merit.” Id.

No trial date has been set and no prejudice to defendants was admitted by 

defendant’s counsel at the hearing. However, defendant’s counsel did argue that there 

was flagrant bad faith with both sets of discovery requests. He also argued that the 

admissions that were deemed admitted were of no particular substance. This, however, is 

not the case. In looking at the attachments to defendant Freeman’s motion for summary 

judgment, Exhibit “A”, the integrated discovery to plaintiff Robert Tyson, Mr. Tyson 

denied that he had never spoken to Robert Freeman in person (Admission No.1); denied 

that Viaje did not instruct him to move from the Leased Premises (Admission No. 5 an 

6); denied that Viaje did not terminate his lease (Admission No. 7); denied that his lease 

was not terminated before moving from the Leased Premises (Admission No. 8); denied 

that there was no evidence showing Freeman and/or Medina knew that the Lease 

Agreement was a “tenancy at will” at the time it was entered into (Admission No. 33); 
20

denied that Viaje was responsible for a percentage of the damages alleged (Admission 

No. 35); denied that Susan Venus was responsible for a percentage of damages 

(Admssion No. 37); denied that Anne Blankenship was responsible for a percentage of 

damages (Admission No. 38); denied that Tyson himself was responsible for a 

percentage of his own damages (Admission No. 39); denied that his attorney Carole 

Boyd was responsible for a percentage of his damages (Admission No. 40); denied that 

his lease had not been adjudged “illegal” under Texas law (Admission No. 41); denied 

that if the lease were enforceable under the laws of Texas he would not have any claims 

against Freeman or Medina (Admission No. 42); denied that the Bankruptcy Court Order 

did not declare the leases illegal (Admission No. 43); denied that the reason for vacating 

the premises was personality conflicts and not because of the lease being a tenancy at will 

(Admission No. 44); denied that he had not been prescribed any medication by any 

medical professional for pain and mental anguish that arose from having moved from the 

Leases Premises (Admission No. 45.) There were also other admission which were 

admitted in part and denied in part. These are serious issues which go to the heart of the 

litigation and which, if admitted, destroy the causes of action for all plaintiffs. 

The judge, in ordering the first set of discovery admissions deemed admitted, and 

the second set “undeemed” (see attached Order, Exhibit “B”), has divided plaintiffs, all 

having the same claims and causes of action, so that some have retained their correct 

admissions, and others have had their admissions all deemed admitted, despite having

denied many of them, and despite answers to interrogatories running to the contrary.

This creates not only confusion but extreme prejudice to plaintiffs and precludes 

unified presentation of the merits of the case for no apparent or logical reason. There was 
21

clearly no intended or flagrant bad faith or abuse of the rules and no prejudice at all to the 

defendant. The District Court erred in denying all deemed admissions to be withdrawn. 

Conclusion and Prayer 

For these reasons, Appellants request that this Court reverse the District Court’s 

Orders granting Appellee’s motions for Summary Judgment, for Severance and for 

Denying Withdrawal of all Deemed Admissions, and specifically Deny Appellees 

Summary Judgment and Severance Motions and Grant All Deemed Admissions 

Withdrawn. 

In the alternative, if the Court does not specifically Deny the motions for 

Summary Judgment and Severance, Appellants request that this Court reverse the District 

Court’s Order Denying Appellants’ Motion for Remedy and Rehearing, and allow 

Appellants an opportunity to amend their evidence and for a rehearing on the Summary 

Judgment and Severance motions. Appellants also request all other relief to which they 

may show themselves justly entitled. 

April 13, 2015 Respectfully Submitted, 

/S/Carole K. Boyd 

State Bar Number: 00786793 

15751 Highway 16 North 

Medina, Texas 78055 

(830) 589-7587 

Fax: (830) 589-7598 

ATTORNEY FOR APPELLANTS 

CERTIFICATE OF SERVICE 

I certify that on April 13, 2015 the within Brief for Appellants was served upon 

opposing counsel by e-filing and email as follows:
22

C. Dixon Mosty 

Mosty Law Firm 

Email: cdmosty@mostylaw.com

Stephen B. Schulte 

Stephen B. Schulte PC 

Email: sschulte@schultepc.com

/S/ Carole K. Boyd 
23

 CAROLE KING BOYD

 ATTORNEY AT LAW

15751 HIGHWAY 16 NORTH

 MEDINA, TEXAS 78055

 TEL: (830) 589-7587

 FAX: (830) 589-7598

June 30, 2014

Mosty Law Firm

222 Sidney Baker S., Suite 400

Kerrville, Texas 78028

Attention: C. Dixon Mosty

Re; Tyson et als. v. Freeman et als.

Dear Mr. Mosty:

A little professional courtesy might be called for. I told you that I was in the 

hospital and have been in and out of facilities and at home nursing care for 

the past month. I have been unable to do much work until this week. I have 

had the many exhibits copied. I still need to put answers in typewritten form, 

but believe that I can do that by the end of the week. 

Thank you for your kind consideration.

Very truly yours,

Carole K. Boyd

CKB:hs

Cc: Steve Schulte

Sent Via Fax Transmission Only

 EXHIBIT “A”
24

 EXHIBIT “B”