                                                                                          ACCEPTED
                                                                                     03-14-00463-CV
                                                                                            4481270
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                3/12/2015 4:21:50 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                           Cause No. 03-14-00463-CV

DON & CAROL TITEL                          §             IN THE FILED IN
                                                           3rd COURT OF APPEALS
Appellants                                                     AUSTIN, TEXAS
                                           §             THIRD    COURT
                                                           3/12/2015 4:21:50 OF
                                                                             PM
v.                                                           JEFFREY D. KYLE
                                           §             APPEALS,  Clerk
MORRIS & LISA MELCHOR,
Appellees                                  §             TEXAS


                   Appealed from the County Court at Law #2,
                               Travis County, Texas
                           Cause #C1-CV-14-004232
           The Honorable David Phillips and Eric Shepperd Presiding




                        APPELLANTS’ BRIEF


PAUL C. VELTE IV
Counsel for Appellant
State Bar # 20541700
109 E. Hopkins St., Ste. 204
San Marcos, TX 78666
512-353-2299
Fax: 476-9504
Email: velte@ptexans.com

Request for Oral Argument: Oral Argument is Requested.




                                       i
                             Parties & Counsel

Appellants: Don Titel and Carol Titel

Counsel for Appellant:
Paul C. Velte IV – 109 E. Hopkins St., Suite 204, San Marcos, TX 78666



Appellees: Morris Melchor and Lisa Melchor

Trial Counsel for Appellee:
Jay Lea, 8310 Capital of Texas Highway, North, Suite 490, Austin, Texas 78731

On appeal: Same.




                                        ii
                                       TABLE OF CONTENTS
PARTIES & COUNSEL ........................................................................................II

TABLE OF CONTENTS .....................................................................................III

INDEX OF AUTHORITIES ................................................................................IV

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

ISSUES PRESENTED ............................................................................................5

STATEMENT OF FACTS .....................................................................................6

SUMMARY OF ARGUMENT.............................................................................12

ARGUMENT & AUTHORITIES ........................................................................13

ISSUE #1: THE GRANT OF SUMMARY JUDGMENT WAS IMPROPER.13

PRAYER.................................................................................................................20

APPENDIX.............................................................................................................21




                                                          iii
                                          INDEX OF AUTHORITIES

CASES
Bessette v. Humiston, 121 Vt. 325, 326; 157 A.2d 468 (1960). ....................................................20
Bicknell v. Lloyd, 635 S.W.2d 150, 152 (Tex.App.--Houston [1st Dist.] 1982). ..........................14
Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).............................16

TREATISES
2 Restatement of Torts 2d, § 302 (1965)........................................................................................13
2 Restatement of Torts 2d, § 302A (1965) ....................................................................................14
2 Restatement of Torts 2d, § 302A (1965) cmt c. .........................................................................17
2 Restatement of Torts 2d, § 302B (1965) ....................................................................................14
2 Restatement of Torts 2d, §290 (1965) cmt i ...............................................................................18
2 Restatement of Torts 2d, §290 (1965) cmt j ...............................................................................18
2 Restatement of Torts 2d, §290 (1965) cmt k ..............................................................................18
57A AM. JUR. 2D, § 122. ................................................................................................................19
57A AM. JUR. 2D, § 123. ................................................................................................................19
57A AM. JUR. 2D, § 124 .................................................................................................................19
57B AM. JUR. 2D, § 1114 ...............................................................................................................19
57B AM. JUR. 2D, § 1117 ...............................................................................................................19




                                                                   iv
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:



                              Statement of the Case
     This is a negligence suit for damages caused by a fire set by children on

neighboring land. Appellants sued the owners and others in control of the children

and the property where the children resided.1 The appellees moved for summary

judgment,2 which was granted on all claims, that appellants take nothing against

the landowners.3 Summary judgment proofs consisted of affidavits, depositions,

insurance policies produced by appellees, and a certified copy of a fire marshall’s

report. A severance was had,4 and later new evidence was introduced on a motion

for new trial;5 however, this did not change the ruling. This appeal followed.


                                    Issues Presented

1.      Grant of Summary Judgment was Improper




1 CR 56 and 417 (Plaintiffs’ 3rd and 4th Amended Petitions in Part III-B alleges the claims against
the appellees) (in this brief, the Clerk’s Record will be cited as “CR” and the Supplemental
Clerk’s Record as “SCR”). Citations to both the Clerk’s records and the depositions will be
provided. Note that the Supplemental Clerk’s Record contains better scans than the same
material in the original Clerk’s Record, and will be cited more often for that reason. The trial
court had before it all the contents of both the CR and the SCR at the time it considered the
Motion for New Trial.
2 CR 11.
3 CR 412.
4 CR 414.
5 CR 595.



                                                5
                              Statement of Facts
    A fire on July 11, 2011, consumed much of Appellant’s property, causing
damages within the jurisdiction of the Travis County Courts at Law. The Travis
County Fire Marshall's report establishes that two children started two fires that
day. They extinguished the first, but were unable to extinguish the second.6
Deputy Fire Marshall Daniel Berger testified that the children admitted to starting
the fire at the scene on the day of the fire.7 There is some dispute as to the specific
involvement of each child, but that is of no consequence in this appeal, since it is
Appellees’ general negligence in creating the situation that forms the basis of
Appellants’ claims against them.
    Appellees bought a house and one acre lot at 693 Pickett Lane in Travis
County.8 At the time of acquisition it was surrounded on all sides by a 16 acre
tract owned by Jose and Yolanda Rodriguez.9 Appellees’ single acre was mostly
denuded of brush, but the surrounding 16 acres was thickly wooded cedar brush.10
They each testified that their son Jeremy was living there at their pleasure11 for the
main purpose of providing a stable home in a wholesome environment for their
grandchildren.12 Specifically, three grandchildren by a son who had never done
well for himself and was unstable in employment.13 Appellees testified several

6 CR 509 at 522. As a certified copy of a public record, it is admissible in evidence under Rule
803(8)(C). The inartful heading of the Fire Marshall's affidavit calling it a 'business record'
notwithstanding, the affidavit clearly states that Item #2 is a true copy of Deputy Fire Marshall
Daniel Berger's Report and is a public record on file with the Travis County Fire Marshal's
Office.
7 CR 76 at 95 (Daniel Berger Depo. Page 20 lines 9 – 18) and at CR 108-109 (Depo. p. 33 line 4

to p. 34 line 22).
8 See map included in the Appendix as item 4.
9 Morris Melchor Depo. 25:7 – 26:14 (CR 538-39)(Map exhibit appears at SCR 447).
10 Id. at 33:8 – 18 (CR 544).
11 Morris Melchor Depo. 47:20 - 48:6 (see CR 525 at 553-54). Note that Ms. Lisa Melchor

testified she agreed with everything her husband had testified to in his deposition other than
perhaps some dates and ages of children. Lisa Melchor Depo. 4:9 – 20 (CR 505 at 506).
12 Morris Melchor Depo. 20:14 to 21:1 (CR at 534-35) and 24:15 to 25:23 (CR at 537-38).
13 Id.



                                               6
times that Jeremy's job was to manage the place to provide a good home for the
grandchildren; and if that did not happen, then Jeremy was out.14 Apellees agreed
that Jeremy's primary incentive to manage the property well for them, which
included fixing it up for eventual resale,15 was to provide a good home for his
children.16
     These parents provide their son Jeremy with a job,17 a truck,18 and a home.19
They financed his schooling for a state HVAC license,20 a custody battle with his
first wife,21 and his defense in this suit.22 They let Jeremy choose contractors to do
work on their home,23 yet his parents paid for, and controlled the details of repairs,24
and new construction,25 used the place for equipment storage for their restaurant
business,26 and carried the electric service in their name for "about a year,"27 after
Jeremy moved in after purchase.28
     Morris Melchor considers himself a family oriented man,29 who runs a family
business30 employing four of his children31 among 11 restaurants, and extended
family in most locations.32 Appellant Lisa Melchor took over daily care of

14 Morris Melchor Depo. 47:20 to 48:6 (CR 553-54); 95:3 – 5 (CR 561).
15 Id. at 38:18–22 and 41:7-13 (CR 549 and 552).
16 Morris Melchor Depo. 96:9 – 16 (CR 562). Ms. Lisa Melchor testified she agreed with

everything her husband had testified to in his deposition other than perhaps some dates and ages
of children. Lisa Melchor Depo. 4:9 - 20.
17 Morris Melchor Depo. 20:8 – 13 (CR 533)
18 Id. 21:2 –3 (CR 534).
19 Id. 20:14 – 25 (CR 533).
20 Id 21:6 – 15 (CR 534).
21 Id. 21:20 to 22:15 (CR 534).
22 Id. 23:19 – 22 (CR 536).
23 Id. at 26:1 – 9 (CR 539).
24 Id. 39:25 to 40:7 (CR 550-51).
25 Id. 30:18 to 31:16 (CR 542-43).
26 Id. 40:8 – 16 (CR 551).
27 Id. 85:11 – 21 (CR 560).
28 Id. 25:17 – 19 (CR 538)
29 Id 10:25 to 11:1 (CR 526-27).
30 Id. 10:17 – 24 (CR 526).
31 Id. 14:21 –25 (CR 530).



                                               7
Jeremy's children for some period of months after Jeremy's second wife, Joi
Nelson, decided to leave after a violent incident with Jeremy.33
     The policy of insurance covering 693 Pickett Lane, purchased by Jeremy's
parents, clearly indicates that they insured the property as a second home occupied
by “immediate family” as late as 2013. The policy declarations page and the
definitions in the policy make a clear distinction between "immediate family"
occupied and "tenant occupied" properties.34 Their property at 693 Pickett was
also covered as an “additional residence” on a liability policy at the time of the
fire.35 There was no written lease.36
     A burn ban was in effect for Travis County in the summer of 2011.37 Due to
drought conditions, the risk of wildfires was quite high for much of our State.
Appellees and their son were aware of the ban and of fires that plagued much of
Texas in the summer of 2011.38 The nature of the land in the region of Appellees’
property--covered with thick, undeveloped native Texas vegetation--made the risk
of wildfire even more acute.39 Appellees were aware that more than their own
grandchildren were being invited out to their land, but chose to exercise no
oversight or control, other than to delegate to their son all authority to control
conditions on their property. When they bought the place, Appellees knew at least
six children would be living on their property.40



32 Id. 15:14 to 16:5 (CR 531-32).
33 Jose Rodriguez Depo. 33:17 - 35:19 (CR 340-42); Joi Nelson Depo. 27:10-24 (CR 743).
34 See Germania Policy declarations page and relevant portions of the policy (CR 73-75).
35 The relevant declaration page appears at CR 621-22).
36 Joi Nelson Depo. 96 (CR 812); Jeremy Melchor Depo. 19:13-15 (SCR 466).
37 Daniel Berger Depo. 14:8 – 16:5 (CR 89-91).
38 Morris Melchor Depo. 35:13 – 36:5 (CR 546-547); Jeremy Melchor Depo. at 21:10 – 23 (CR

498).
39 Daniel Berger Depo. 7:5-8:20 (CR 82-83).
40 Joi Nelson Depo. 4:21-7:25 (CR 720-23). When they split, Jeremy had Mandy move in, and

Appellees knew she had children as well.

                                            8
     Under Jeremy’s care children were allowed and encouraged to trespass to
explore and play on the surrounding wooded acreage—treating the Rodriguez’s
surrounding acreage as if it were their own.41 There is some evidence Appellee
Lisa Melchor knew of this.42 Lisa Melchor at one point even ran Rodriguez off his
own property.43 Both Appellees attended family events when children were off
playing in the woods.44
     Per Rodriguez, Jeremy pulled a gun on him across the property line45 and drove
over and broke fence posts Rodriguez was erecting around the Appellees’ square
acre.46 Rodriguez had no problems before Appellees bought their acre and their
son Jeremy moved in.47 Nor had he ever see signs of trespassing on his property.48
Joi Nelson testified that Jeremy’s intent was to harass Rodriguez so he would sell.49
This tactic ultimately succeeded, as Rodriguez ended up selling his 16 acres to
Appellees at a loss.50 Rodriguez stated that the final straw event that made him
decide to sell his 16 acres surrounding the Melchor’s acre was the fire that is the
subject of this suit.51
     Other neighbors tell a story of a chronic lack of adult supervision of the
Melchors’ grandchildren. It became a topic of discussion and concern among their
neighbors.52 Neighbors’ affidavits show that the Melchor children were frequently

41 See Jose Rodriguez Depo. 25:18 – 26:7 (CR 332-33); Joi Nelson Depo. 24:13-25:10 (CR 740-
41), 27:5-9 (CR 743), 29:9-30:2 (CR 745-46), and 35:17-37:12 (CR751-53); Morris Melchor
Depo. 56:24 – 57:4 (SCR 672-73).
42 Jose Rodriguez Depo. 34:9-35:15 (CR 341-42).
43 Jose Rodriguez Depo. 37:6-38:17 (CR 344-45); 81:14-21 (CR 388).
44 Joi Nelson Depo. 95:18-23 (CR 811). “They would wander off and go do what kids do: go

play by themselves.” Id. at 95:24-96:2 (CR 811-12).
45 Jose Rodriguez Depo. 41:2-20 (CR 348).
46 Jose Rodriguez Depo. 14:22-16:2 (CR 321-23).
47 Jose Rodriguez Depo. 36:18-37 (CR 343).
48 Id.
49 Joi Nelson Depo. 28:20-30:14 (CR 744-46).
50 Jose Rodriguez Depo. 49:17-50:8 (CR 356-57).
51 Jose Rodriguez Depo. 49:3-16 (CR 356).



                                            9
left unsupervised, at home and elsewhere,53 to the point where one neighbor felt he
needed to feed them,54 and another, Sharon Watson, refused to allow her six
children to go over to play at the Melchor's residence because there was "no adult
supervision at the Melchor residence."55 The Melchor children were known to
trespass on their neighbors' land.56 Dean Shoemaker says after telling them they
were no longer welcome, he still had to run them off "several more times."57 He
also caught the oldest Melchor (Clayton) boy inside his workshop on one occasion.58
Joi Nelson found the Appellee’s grandchildren left alone on the Melchor property
on two occasions.59 Jose Rodriguez testified that children at the Appellees’
property “were always outside and there was nobody watching over them.”60 He
also stated he found evidence children were all over his property because he would
find toys, clothing, dolls, cars, tents, and property damage.61
     There is evidence in the record that Jeremy was a heavy smoker62 in the years
before the fire, while Joi Nelson and six children were living with him.63 He had a
habit of misplacing and losing track of his cigarette lighters,64 so extras were kept
in various locations to replace them.65 Mandy Edwards, Jeremy’s live-in girlfriend
(after Joi Nelson and her children moved out) was a smoker too.66 There is also

52 Affidavit of Royce Reid, p. 3.
53 Affidavit of Sharon Watson and Royce Reid, p. 2 ("[T]he Melchor kids had a reputation for
being unsupervised.…")
54 Affidavit of Dean Shoemaker.
55 Affidavit of Sharon Watson, p. 1.
56 Affidavit of Amanda Benedict; Jose Rodriguez Depo. 25:1 - 25.
57 Affidavit of Dean Shoemaker, p. 2.
58 Id.
59 Joi Nelson Depo. 38:19-39:1 (CR 754-55).
60 Jose Rodriguez Depo. 26:8-11 (CR 343).
61 Jose Rodriguez Depo. 25:18-26:21 (SCR 367-68).
62 Joi Nelson Depo. 53:10-14 (CR 769).
63 Joi Nelson Depo. 55:4-10 (CR 771).
64 Joi Nelson Depo. 53:15-55:3 (CR 769-771).
65 Joi Nelson Depo 54:10-15 (CR 770).
66 Mandy Edwards Depo. 32:4-9 (SCR 296).



                                              10
evidence of a third smoker: Jeremy’s oldest son Clayton. Before the fire, one
neighbor, Sharon Watson says Clayton offered her son a cigarette, and when she
confronted him, Clayton told her he was allowed to smoke.67 The boy would have
been approximately age 11.68 Joi Nelson testified Clayton admitted to her that, as
late as 2013, he was smoking cigarettes and pot that Jeremy’s girlfriend, Mandy
Edwards, left lying around.69
     On the occasion of the July, 2011, fire Morrissa Melchor, according to her

testimony, then age nine, was charged with supervision of seven year old70 Ben

McKeever, the son of Mandy Edwards, who had come to stay for a few weeks for

summer visitation.71 As was customary for children staying at the Melchors' home,

the two children were permitted to leave the Melchor’s one acre lot to roam onto

neighboring wooded property.72 Morrissa claims she took Ben to a 'fort' the

children had built, but lost sight of him.73 Ben McKeever told Daniel Berger he

obtained a cigarette lighter from inside the Melchor's residence;74 Morrissa, on the

other hand, says Ben took it from a chair outside on the porch.75 Ben stated


67 Affidavit of Sharon Watson, p. 2. The boy’s admission should be considered admissible
evidence as an admission against interest.
68 Mandy Edwards Depo. 59:20-25 (SCR 323)(the boy was 13 at the time of her deposition, and

the fire occurred some 22 months earlier).
69 Joi Nelson Depo. 52:16 - 53:9 (CR 768-69). The fact that this was happening some two years

after the fire shows a pattern of negligence of Jeremy Melchor and the other adults Appellees left
in charge of their property. A reasonable inference is that the same behavior was going on
before the fire.
70 Morrisa Melchor Depo. 40:8-41:19 (SCR 568-69).
71 Jeremy Melchor Depo. 17:1 – 8 (SCR 464).
72 See n. 41, supra.
73 Morissa Melchor Depo. 34:11-18 (SCR 562-63).
74 Daniel Berger Depo. 36:11 – 13 (CR 111).
75 Morrissa Melchor Depo. 11:25 - 12:17 (SCR 539-40).



                                               11
Morrissa told him to light the fire; Morrissa denied this in deposition,76 but did not

deny it the day of the fire.77 No portion of the Melchor’s one acre lot was involved

in the conflagration.78 As late as 2013, Ben’s mother, Mandy Edwards, also a

defendant below, stated she was still not convinced that Ben started the fire; she

believes he is merely ‘taking the blame’ for it. 79


                              Summary of Argument
     The trial court did not state any ground for its ruling. Plaintiffs’ supplied the
trial court with summary judgment proofs sufficient to prevent a summary
judgment on their negligence claims against the Appellees. The Third & Fourth
Amended Petitions alleged that Appellees were negligent in creating a menacing
situation that endangered the lives and property of everyone in the vicinity of their
property. They bought the property (ostensibly) to raise children—then managed
the property in such a way that put children at risk. They introduced young
children to the wilds of the thick, brush covered hill country of central Texas and
used the land surrounding theirs as a playland for children. When drought
conditions descended upon the area, neither they nor their agents in charge of their
house made any changes, and at all times encouraged or allowed children to roam
and play on neighbors’ lands, completely unsupervised, all while doing little or
nothing to teach them of the hazards of wildfire on such land.



76 Id. 39:12 – 19 (SCR 567).
77 Daniel Berger Depo. Cf. 107:16 – 25 (CR 182) to 117:7–119:18 (CR 192-194).
78 Jeremy Melchor Depo. at 21:7 – 9 (SCR 468). Other summary judgment proofs show that the

point of ignition was far from Appellee’s property, close to Ivy Lane. See e.g., Daniel Berger's
deposition at pp. 51:6–54:1 (CR 126-129, stating that the ignition point was on the lot designated
“355404” and compare to Exhibit 1 to Morris Melchor's Depo. (CR 723)(Appendix Item 4).
79 Mandy Edwards Depo. 35:10-22 (SCR 299).



                                               12
      The summary judgment proofs support an inference that the other defendants
(Jeremy Melchor and Mandy Edwards) were acting as the agents of Appellees in
their management of the property and/or were joint venturers in an enterprise
specifically created for the purpose of raising children (and improving the family’s
estate). This means Appellees have potential liability either in their own right, or
vicariously through their chosen agents, due to the acts of their agents in actual
daily custody and control of their property located in the middle of what was
literally a mountain of tinder during drought conditions.
      Appellees, as owners, had a duty to their neighbors as well as the power to
control the actions of their agents and invitees to prevent harm to their surrounding
neighbors. In short they may have some liability for negligently failing to control
their agents, invitees, and their activities. There is a jury question at the least.

                                Argument & Authorities

Issue #1: The grant of summary judgment was improper.
   Counsel has been unable to find a case that is analogous to this one: Where an
absent landowner turned day-to-day control over to his agents who, in turn,
allowed children to trespass regularly upon land everyone knows is not theirs—
land particularly suited to raging wildfires—where the children indeed start a fire
that traverses property lines and damages a neighbor. Most every case involves a
fire started on one’s own property due to atrocious conditions.
      However, the Restatement of Torts (Second), Section 302, et seq., provides a
basis for liability on facts like the ones in this case. That section has been
approved and followed in one Texas case,80 and in no case has it been disapproved
as a correct statement of the law of negligence in Texas. That section and
specifically 302A81 and 302B,82 make the foreseeable negligence of third persons,

80   Bicknell v. Lloyd, 635 S.W.2d 150, 152 (Tex.App.--Houston [1st Dist.] 1982).

                                                13
and the foreseeable intentional, or even criminal, conduct of third persons the basis
of liability if a reasonable person would have taken steps to avoid the risk of harm
presented by the conduct of such third persons.

Dry Brush County + Unsupervised & Untrained Children = Danger of Wildfires

     The salient facts that have been included in the summary judgment proofs are
that the conditions upon Defendants' property in July of 2011--and indeed, the
entire region of central Texas--presented a well known and extreme risk of
wildfire.83 A burn ban was in effect in Travis County and almost every county in
Texas. The type of land owned by Appellees for the use of their child and
grandchildren—plus any others he brought out there—is more dangerous due to
the amount of fuel that’s available for burning,84 and most owners of such land are
aware of the increased risk.85
     Appellants submit the mere ownership of such land brings with it a certain
responsibility not to take unreasonable risks. Appellants contend introducing
children into such an environment without supervision or special training is taking
an unreasonable risk. Drought conditions required some further steps to ensure the
children did not do what children are known to do: play with fire. Allowing one’s
own children to trespass and play on other’s land, and to take other children,


81 "An act or an omission may be negligent if the actor realizes or should realize that it involves
an unreasonable risk of harm to another through the negligent or reckless conduct of the other or
a third person." 2 Restatement of Torts 2d, § 302A (1965). (emphasis added).
82 "An act or an omission may be negligent if the actor realizes or should realize that it involves

an unreasonable risk of harm to another through the conduct of the other or a third person which
is intended to cause harm, even though such conduct is criminal." 2 Restatement of Torts 2d, §
302B (1965)(emphasis added). No one in this case contends the children intended the result of
the fire they started, but this section is cited to show that the intent of the children is irrelevant.
The children acted either negligently or intentionally in setting the fire.
83 Daniel Berger Depo. 8:2-10:13 (CR 83-85)
84 Id. at 8:2-20 (CR 83).
85 Id. at 10:6-13 (CR 85).



                                                  14
visiting for short periods, to do likewise, with no direct adult supervision or
education on the risks presented by fire in such environs is what these Appellees
and their agents did. A similar case held:
        We know of no decision which holds that one who maintains his
        property so negligently that it menaces his neighbors, is liable for the
        destruction of their premises by a fire which started upon his, only in
        the event that he himself applied the match. To the contrary, we are
        satisfied that the owner's negligence is the proximate cause of the
        damage to the neighbor, even if a stranger communicated the spark;
        unless the circumstances are such that no prudent person would have
        anticipated the stranger's act.

Arneil v. Schnitzer, 173 Or. 179, 207; 144 P.2d 707, __ (1944).

     As stewards of drought-stricken brush land, the Appellees and other defendants
were remarkably careless in introducing young children into such a dangerous
environment. This appeal could well have been one involving the death of those
children. Instead, the fire blew North toward Appellant’s house, away from the
Melchor’s property, sparing Appellees any loss.86
     The summary judgment proofs show that Appellees and their agents—their son
and his wife and girlfriends—made little or no provision for adequate supervision,
discipline, training, and control of minor children that they introduced into their
rural setting. No one gave one child, Ben McKeever, any warning or training
before allowing the seven year old to roam upon neighboring thickly wooded land.87
The summary judgment evidence shows a distinct lack of adult supervision of the
Melchor's children but more than that, encouragement to play on surrounding
heavily wooded land that did not even belong to the Melchor family.88


86 Morris Melchor Depo. 49:7-12 (SCR 665).
87 Mandy Edwards Depo. 45:1 to 47:1 (SCR 309-11); Morris Melchor Depo. 45:2-50:14 (SCR
661-666).
88 See n. 40, supra.



                                           15
     Appellees bought the land for Jeremy and his girlfriend Joi Nelson, who had
three children of her own, so together they had six children. In review of summary
judgments, "Every reasonable inference must be indulged in favor of the non-
movant and any doubts resolved in its favor." Nixon v. Mr. Property Mgmt. Co.,
Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). It is a reasonable inference that the
Appellees knew these six children had run of the place, and were venturing well
off their one acre. Joi Nelson testified that when Appellees would visit for BBQ,
birthdays, Christmas and holidays, the children would play in the woods.89
Likewise, it is a reasonable inference that Appellees knew of their son’s smoking
habit and general irresponsible character.90 There is direct evidence they were
aware of both.91
     Appellees knew or should have known how their son was managing the use of
their property for the purpose they stated. Raising children was, after all, the
reason Appellees bought the property. On these facts one wonders if Appellees
bought this rural, secluded home to enable or conceal Jeremy’s general neglectful
supervision.92 They knew or should have known of the drought conditions in the
area, the burn ban in effect, and that children are known to play with fire. They
chose to remain ‘hands off’ and allow their son Jeremy to do whatever he wanted
on their property,93 and chose to remain ignorant of the persons being invited there
and their activities.



89 Joi Nelson Depo. 95:18-23 (CR 811).
90 Jeremy was known as the ‘black sheep’ of the Melchor family. Joi Nelson Depo. 61:12-62:14
(CR 777-78), he was violent. Id. at 64:8-20 (CR 780). Both Jose Rodriguez and Joi Nelson
described an incident where Jeremy shot and knocked out all the windows of one or more
vehicles. Id. at 27:10-24 (CR 743) and Rodriguez Depo. 20:1-11 (SCR 362).
91 Joi Nelson Depo. 107:3-12 (CR 823). In describing Jeremy, Joi used the terms “dishonest,”

“destructive,” “short tempered.” Id. at 67:8-68:19 (CR 783-84).
92 Joi Nelson Depo. 68:15-25 (CR 784); see also neighbors’ affidavits to the same effect, supra.
93 Joi Nelson Depo. 78:8-14 (CR 794); Morris Melchor Depo. 37:22-38:25 (SCR 653-54).



                                               16
      Children will be children, and Appellants contend it was entirely foreseeable
that children from the city brought to such a rural setting, and allowed to roam at
will unsupervised upon thickly wooded and brush-covered land, would at some
point decide that starting a ‘campfire’ was a wonderful idea, causing grievous
harm. Notably, this harm was unlikely if only the Melchors had respected the
property rights of their neighbors, and merely kept all children on their own lot,
since it was mostly denuded of the incendiary brush that dominates the landscape
in their immediate vicinity.94
      That children will play with fire is a matter of common human knowledge. In
comment c to § 302A of the Restatement of Torts (second), we find:

         As stated in § 290, the actor is required to know the common qualities
         and habits of human beings, in so far as they are a matter of common
         knowledge in the community. … the actor is required to know that
         there is a certain amount of negligence in the world, and that some
         human beings will fail on occasion to behave as a reasonable man
         would behave. Where the possibility of such negligence involves an
         unreasonable risk of harm, either to the person who is to be negligent
         or to another, the actor, as a reasonable man, is required to take it
         into account and govern his conduct accordingly.

(emphasis added). In this case, the risk of wildfire was extreme, and the
probability of negligent children therefore presented an unreasonable risk of
harm.
      Comment i to §290 of the Restatement, lists a situation closely analogous
to the one alleged in the Plaintiffs' Petition:
         Creation of situation which may become dangerous because of future
         events. Knowledge of the qualities, capacities, and tendencies of
         human beings and animals and the operations of natural forces is of
         the most obvious importance where the actor's conduct has created a

94   Morris Melchor Depo. 36:6-37:1 (SCR 652-53).

                                              17
        situation which, without more, is not dangerous to anyone, but which
        may become dangerous to others if it is subsequently acted upon by a
        human being or animal or by a force of nature. …

(emphasis added).

Comment j adds:
        The actor as a reasonable man should know the qualities, capacities,
        and tendencies of human beings, in so far as they are generally
        recognized at the time and in the community…

Comment k adds:
        Knowledge of traits of particular classes. The actor as a reasonable
        man should also know the peculiar habits, traits, and tendencies which
        are known to be the characteristic of certain well-defined classes of
        human beings. He should realize that the inexperience and
        immaturity of young children may lead them to act innocently in a
        way which an adult would recognize as culpably careless….

(emphasis added).
     Both Appellees and their son Jeremy testified that they were aware of the
fire hazard presented by drought-stricken brush country such as theirs.95
Appellees each admitted that it is common to expect that children will play
with fire.96 What they disclaim knowledge of, are the identities and number
of the children who were invited to stay upon their property, or their
activities.97
     But willful ignorance does not avoid liability. "One under duty to use
care for which knowledge is necessary cannot escape liability for negligence
because of voluntary ignorance." 57A AM. JUR. 2D, § 122. "Liability for

95 See Morris Melchor Depo. 34:18 to 36:5 (SCR 650-52) and Jeremy Melchor Depo. 21:10 – 23
(SCR 468).
96 Lisa Melchor Depo. 12:12 to 13:2 (CR 507-08): Morris Melchor Depo. 11:13 to 13:4 (SCR

627-28).
97 Morris Melchor Depo . 43:4-45:8 (SCR 659-661).



                                           18
negligence may be predicated upon the lack of foresight or of forethought."
Id. "Where a situation suggests investigation and inspection in order that its
dangers may fully appear, the duty to make such investigation and
inspection is imposed by law." Id. § 123. "The test of foreseeability is
whether the ordinary person in the defendant's position, knowing what the
defendant know [sic] or should have known, would anticipate that harm of
the general nature of that suffered was likely to result." Id. § 124.
     A finding of a joint enterprise could create vicarious liability for all members of
the enterprise. 57B AM. JUR. 2D, § 1114; see also § 1117. Or alternatively, if their
son Jeremy is found to be an agent of his parents, then liability for Jeremy's
negligence may be imputed to his parents on that ground. Id. § 1117. The facts as
supported in the summary judgment evidence could reasonably support a finding
of either agency or perhaps even a joint enterprise. The acts described by their
neighbor, Jose Rodriguez could support a finding of a joint enterprise of these
defendants: The Melchors run a large family owned business of restaurants
employing many family members. It is a reasonable inference that Jeremy worked
in concert with Appellees to enlarge and improve the extended family's real estate
holdings. Tearing down a fence on a neighbor's land is clearly the act of someone
who feels he has the authority of a landowner.
     That the defendants retained title and control of the property, and created this
situation, buying it for their son to raise their grandchildren, and abdicating all
control, is not in dispute. Appellees apparently wanted the benefits of ownership,98
but not the responsibility. “Negligence may lie in the creation of a dangerous



98 Joi Nelson noted she got nothing in her divorce for her investment in the property because it
was in Appellees’ names. Joi Nelson Depo. 96:24-98:15 (CR 812-14). Morris Melchor noted he
intended to sell the property to recoup his investment after the grandchildren were grown.
Morris Melchor Depo. 38:18-22 (654).

                                              19
situation, although the final injury is activated by the conduct of a third person.”
Bessette v. Humiston, 121 Vt. 325, 326; 157 A.2d 468, ___, (1960).

                                       Prayer
   The summary judgment proofs are sufficient to warrant a trial on the merits,
and therefore, no summary judgment should have been granted. Appellants pray
the judgment of the trial court be reversed and the cause remanded for a trial.

                                           Respectfully Submitted,




                                           Paul C. Velte IV
                                           ATTORNEY FOR APPELLANTS
                                           Bar #20541700
                                           109 E. Hopkins St., Ste. 204
                                           San Marcos, TX 78666
                                           512-353-2299 Fax 512-476-9504
                                           Email: velte@ptexans.com

                           CERTIFICATE OF SERVICE

      I hereby certify that a copy of this document was served upon Jay Lea at the
time of e-filing by e-service on March 11, 2015.




                                           Paul C. Velte IV

                           CERTIFICATE OF LENGTH

      I hereby certify that the length of this brief is 4022 words total.




                                          20
                                   Appendix

1.   Trial Court’s Partial Summary Judgment
2.   Trial Court’s Order of Severance
3.   Trial Court’s Order Denying Motion for New Trial
4.   Map – Exhibit 1 to Morris Melchor Deposition




                                        21
                                   Appendix

1.   Trial Court's Partial Summary Judgment
2.   Trial Court's Order of Severance
3.   Trial Court's Order Denying Motion for New Trial
4.   Map - Exhibit 1 to Morris Melchor Deposition




                                        21
                             .-                                                         -

DONTITEL&                                          §
CAROL TITEL,                                       §
                                                   §
        Plaintiffs,                                §
                                                   §
v.                                                 §
                                                   §
JEREMY DAVID MELCHOR,                              §
MORRIS G. MELCHOR,                                 §
LISA MELCHOR and                                   §
MANDY EDWARDS,                                     §
                                                   §
        Defendants.                                §                     TRAVIS COUNTY, TEXAS




        On this day came to be heard the Motion for Summary Judgment filed by Defendants Jeremy

David Melchor, Morris G. Melchor and Lisa Melchor. After considering the Motion, the Response

filed by Plaintiffs, the Reply filed by Defendants, the summary judgment evidence, and the

arguments of counsel, the Court finds that Defendants' Motion should be GRANTED in part and

DENIED in part.

        IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that Defendant's Motion for

Summary Judgment is hereby GRANTED in favor of Defendants Morris G. Melchor and Lisa

Melchor as to all claims brought against them by Plaintiffs, and that Plaintiffs take nothing against

Defendants Morris G. Melchor and Lisa Melchor, that all claims asserted by Plaintiffs against

Defendants Morris G. Melchor and Lisa Melchor are dismissed with prejudice to the re-filing of

same, that Defendants Morris G. Melchor and Lisa Melchor be discharged from this cause, and that

all costs of court be taxed against Plaintiffs.


ORDER ON DEFENDANTS'   MOTION FOR SUMMARY JUDGMENT                                                        PAGE 10F2
(02602471.DOC I}


                                          1 11111111111 11111 11111 111111111111111 1111111111 11111111
                                          000824804
       IT IS FURTHER ORDERED, ADJUDGED and DECREED that Defendants' Motion for

Summary Judgment as to Defendant Jeremy David Melchor is hereby DENIED.



        SIGNED ON        ,aid         );-2013




ORDER ON DEFENDANTS'   MOTION FOR SUMMARY JUDGMENT                        PAGE20F2
(0260247I.DOC I}
                             g:1s~E::::f.t:;.,~=
                                              ~CV-14-00'f23?')
DONTITEL&                                         §              IN THE COUNTY COURT
CAROL TITEL,                                      §
                                                  §
        Plaintiffs,                               §
                                                  §
v.                                                §
                                                  §'                           AT LAW NO. 2
JEREMY DAVID MELCHOR,                             §
MORRIS G. MELCHOR,                                §
LISA MELCHOR and                                  §
MANDY EDWARDS,                                    §
                                                  §
        Defendants.                               §              TRAVIS COUNTY, TEXAS




                          ORDER GRANTING DEFENDANT
                      JEREMY MELCHOR'S MOTION TO SEVER


        After considering Defendant          Jeremy Melchor's    Motion to Seve6PefenddBa:s                               .:~
                                                                                      ;: 2             ~                 ,~
                                                                                      ~,Oc,            :r:...            ,.1
Morris G. Melchor and Lisa Melchor, any responses, the pleadings, and any ar~en~f                                        ..~
                                                                                             )r'       -             0
counsel, the Court is of the opinion that the Motion should be GRANTED an~:L~rdertthe :JJ
                                                                                        "          '~-,O
                                                                                      . -0         -.:..         71
clerk of the court to assign the severed action the separate cause number ofCause NQ, C- ')
                                                                                 ~~:.
                                                                                 o:
                                                                                                   ..
                                                                                                   ~
                                                                                                                ..-,.
                                                                                                                ,_r
1-CV -12-008224 B and include in the file a copy of the documents reference beloW"and~                          • ._.I    I




                                                                                                                               0===
                                                                                                                               0-
which are attached hereto:                                                                                                     g-
                                                                                                                               01_
                                                                                                                               m_

                            I'o",tbfhA""",ded l.. P~i:          Fe~"":fh'-~OV                                                  _.~
                                                                                                                               w=


                                                                                                                                -
            1. Pmilllifl<'                                                                                                     w_
                 ~ 1/ f /'"IiA,j 1     r''f~.J     f -' e       .tp . If o'rv'if; 1
            2. Plaintiffs' Third Amended Petition, dated October 22,2013;               .                                       -
                                                                                                                                iiiiiiiii

            3. Defendants     Morris G. Melchor           and Lisa Melchor's    First Amended                                   ===
                                                                                                                                -
                                                                                                                                iiiiiiiii

                 Answer, Special Exceptions,           and Motion to Quash Discovery,              dated
                                                                                                                                -
                                                                                                                                ~
                                                                                                                                iiiiiiiii


                                                                                                                                -
                 September 6,2013;
                                                                                                                                -
                                                                                                                                iiiiiiiiiii




ORDER GRANTING DEFENDANT'S MOTION TO SEVER                                        PAGE I OF 3
{02737179.DOCX I}

                                                                                                   w\L\
              4. Defendants         Jeremy David Melchor, Morris G. Melchor, and Lisa

                      Melchor's Motion for Summary Judgment, dated September 27,2013;

              5. Plaintiffs' Response to Defendants' Motion for Summary Judgment, dated

                      October 22,2013;

              6. Defendants         Jeremy David Melchor,   Morris G. Melchor, and Lisa

                      Melchor's Reply in Support of Motion for Summary Judgment, dated

                      October 25,2013;

              7, Plaintiffs First Amended Response to Defendants' Motion for Summary

                      Judgment, dated November 26,2013;

              8. Order Granting Defendants'        Motion for Summary Judgment,             dated

                      December 2,2013;

              9. Defendant's Motion to Sever, dated March 4,2014; and

              10. A copy of this Order.

         The Court ORDERS that the severed case will be styled, Cause No. C l-CV-12-
                                                                                 w




008224B; Don Titel and Carol Titel v. Morris G. Melchor and Lisa Melchor, In the

County Court at Law No.2, Travis County, Texas.

         The clerk is further instructed that the summary judgment entered against Plaintiff

in Cause No. C-I-CV-12-008224; Don Titel and Carol Titel v. Jeremy David, Melchor,

Morris G. Melchor, Lisa Melchor, and Mandy Edwards, In the County Court at Law No.

2, Travis County, Texas is to be entered as a final take nothing judgment against Plaintiff

in Cause No. C-I-CV-12-008224B.

         Furthermore, it is hereby ORDERED that all claims brought by Plaintiff against

Morris G, Melchor and Lisa Melchor in Cause No, C-I-CV-12-008224; Don Titel and



ORDER GRANTING    DEFENDANT'S   MOTION TO SEVER                              PAGE 20F   3
{02737179.DOCXI   I
Carol Titel v. Jeremy David, Melchor, Morris G. Melchor, Lisa Melchor, and Mandy

Edwards, in the County Court at Law No.2, Travis County, Texas but which are now

severed into Cause No. C-I-CV-008224B are hereby dismissed with prejudice to the

refilling of same.

         The Court's order in Cause No. C-I-CV-12-08224B is final and appealable.




ORDER GRANTING DEfENDANT'S   MOTION TO SEVER                             PAGE   3 OF 3
{02737179.DOCX /)
                          ~
                          \~




                                    No. CI-CV-14-004232

DONTITEL
CAROLTITEL                                  §          IN THE COUNTY COURT
Plaintiffs
v.                                          §          AT LAW #2

MORRIS G. MELCHOR                           §          TRAVIS COUNTY, TEXAS
and
LISA MELCHOR                                §
Defendants


                     ORDER DENYING MOTION FOR NEW TRIAL


       After due consideration, the court hereby DENIES the Plaintiffs' Motion for New Trial.



June 30, 2014
Date




                                                           11111111111111111 11111111111111111111111111111111111111
                                                           000880557
                                                                                                        355404




       355429




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