                                                                                     ACCEPTED
                                                                                 03-14-00535-CV
                                                                                         5406912
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            5/22/2015 6:01:56 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                   NO. 03-14-00535-CV
___________________________________________________
                IN THE COURT OF APPEALS           FILED IN
            FOR THE THIRD DISTRICT OF TEXAS AUSTIN,OF
                                           3rd COURT      APPEALS
                                                        TEXAS
                    AT AUSTIN, TEXAS       5/22/2015 6:01:56 PM
                                                           JEFFREY D. KYLE
                      David Young,                              Clerk
                        Appellant,
                           v.
Trails End Homeowners Association, Inc., TLS Properties, Ltd.,
 TLS Operating Company, LLC, Van Keene, and Rick Durapau,
                        Appellees.


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

                          APPELLEES’ BRIEF


                                          Christopher R. Mugica
                                          State Bar No. 24027554
                                          cmugica@jw.com
                                          Emilio B. Nicolas
                                          State Bar No. 24058022
                                          enicolas@jw.com
                                          Jackson Walker L.L.P.
                                          100 Congress Avenue, Suite 1100
                                          Austin, Texas 78701
                                          (512) 236-2000
                                          (512) 236-2002 – Fax

                                      ATTORNEYS FOR APPELLEES
                                      TRAILS END HOMEOWNERS
                                      ASSOCIATION AND VAN
                                      KEENE


ORAL ARGUMENT NOT REQUESTED
             IDENTITY OF PARTIES AND COUNSEL
1.   Appellant
     David Young
     Represented by:
     Stephen Casey
     State Bar No. 24065015
     Stephen@caseylawoffice.us
     Casey Law Office, P.C.
     595 Round Rock West Drive, Suite 102
     Round Rock, Texas 78681
     Telephone: (512) 257-1324
     Facsimile: (512) 853-4098

2.   Appellees
     Trails End Homeowners Association, Inc.
     and Van Keene

     Represented by:

     Christopher R. Mugica
     State Bar No. 24027554
     cmugica@jw.com
     Emilio B. Nicolas
     State Bar No. 24058022
     enicolas@jw.com
     Jackson Walker L.L.P.
     100 Congress Avenue, Suite 1100
     Austin, Texas 78701
     Telephone: (512) 236-2000
     Facsimile: (512) 236-2002




                                  ii
Trails End Homeowners Association, Inc.

Represented by:

W. Thomas Buckle
State Bar No. 03299000
tbuckle@sbylaw.com
Jeff Tippens
State Bar No. 24009121
jtippens@sbylaw.com
Scanalan, Buckle & Young, P.C.
602 West 11th Street
Austin, Texas 78701
Telephone: (512) 478-4651
Facsimile: (512) 478-7750

TLS Properties, Ltd. and TLS Operating
Company, LLC

Represented by:

Derek Quick
State Bar No. 24072471
derek.quick@strasburger.com
Strasburger & Price, LLP
720 Brazos Street, Suite 700
Austin, Texas 78701
Telephone: (512) 499-3600
Facsimile: (512) 499-3660

Rick Durapau, Pro Se
rdurapau@gmail.com
11907 Misty Brook Drive
Austin, Texas 78727
Telephone: (512) 346-4359




                               iii
                                 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ..................................................... ii
TABLE OF CONTENTS ................................................................................. iv
TABLE OF AUTHORITIES .......................................................................... ivi
STATEMENT OF THE CASE ......................................................................... 2

STATEMENT REGARDING ORAL ARGUMENT ......................................... 4
ISSUES PRESENTED (RESTATED).............................................................. 5
PRELIMINARY STATEMENT ....................................................................... 6
STATEMENT OF THE FACTS ........................................................................7
       A.      Appellees’ Land in the Trail’s End Subdivision. ..........................7
       B.      The Disputed Extended Property. ............................................... 9
STANDARD OF REVIEW AND APPLICABLE LAW .................................... 11
ARGUMENT AND AUTHORITIES .............................................................. 13

I.     APPELLANT IS BARRED FROM RAISING THE REPLAT
       ARGUMENT FOR THE FIRST TIME ON APPEAL. ........................... 13
       A.      Appellant waived any issue not raised at trial. .......................... 13
       B.      The re-plat statute at issue does not apply to this case. ............ 13
       C.      There has never been a conflict between Lot 52
               (or its Disputed Extension) and Appellee’s properties. ............. 15
II.    THE TRIAL COURT PROPERLY DETERMINED THAT
       APPELLANT’S TITLE-BASED CLAIMS WERE UNTIMELY. ........... 20

       A.      Adverse Possession ..................................................................... 21
       B.      Limitations began running in 1962. .......................................... 23
       C.      Defendants established adverse possession to Lot 139,
               Lot 140, and the adjoining 1.4777 acre tract. ............................ 25




                                                   iv
III.    THIS COURT SHOULD AFFIRM THE FINDINGS OF FACT
        AND CONCLUSIONS OF LAW BECAUSE THEY ARE
        LEGALLY SUFFICIENT AND PROPER............................................. 29
        A.       Appellant improperly attempts to disturb the Trial Court’s
                  findings of fact with evidence never offered or introduced at
                  trial. .......................................................................................... 29
        B.       Even if Appellant’s untimely evidence were considered,
                  Appellant nonetheless fails to “conclusively” prove his
                  ownership of the Extended Disputed Property. ...................... 36
        C.       The Trial Court correctly determined the location and
                 metes and bounds of the property and road at issue. ............... 38
        D.       The conclusive evidence demonstrates Appellant repeatedly
                 and knowingly trespassed on TEHOA’s property and the Trial
                  Court appropriately enjoined further trespass. ....................... 40
        E.       This Court should disregard Appellant’s arguments which
                 rely on Appellant mischaracterization of the trial record......... 54
        F.       This Court should affirm the award of attorney fees to
                 TEHOA as a result of Appellant’s unsuccessful appeal. .......... 55
CONCLUSION AND PRAYER ..................................................................... 56
RULE 9.4 CERTIFICATE OF COMPLIANCE .............................................. 58
CERTIFICATE OF SERVICE........................................................................ 59
APPENDIX ................................................................................................... 60




                                                         v
                              TABLE OF AUTHORITIES
                                                                                         Page(s)
CASES
Aubrey v. Barlin,
  2014 U.S. Dist. LEXIS 63411 (W.D. Tex. May 7, 2014) ........................... 24
Best Auto v. Autohaus, LLC,
  339 S.W.3d 372 (Tex. App.—Dallas 2011, no. pet.) .................................. 11
Boulanger v. Waste Mgmt. of Tex.,
  403 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2012, pet. denied) ......... 33
Cain v. Bain,
  709 S.W.2d 175 (Tex. 1986) ................................................................ 12, 13

City of Keller v. Wilson,
   168 S.W.3d 802 (Tex. 2005)......................................................... 11, 35, 44
Computer Assoc. Int’l., Inc. v. Altai,
  918 S.W.2d 453 (Tex. 1994) ..................................................................... 24
Croucher v. Croucher,
  660 S.W.2d 55 (Tex. 1983) ................................................................. 12, 29
Davis v. Howe,
  213 S.W. 609 (Tex. Com. App. 1919) ......................................24, 41, 42, 43

Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc.,
  686 S.W.2d 351 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) ........... 13
Finkelstein v. Carpenter,
   795 S.W.2d 897 (Tex. App. – Beaumont 1990, writ denied) ................... 15
Fisher v. Beach,
   671 S.W.2d 63 (Tex. App. – Dallas 1984, no writ) .................................. 28
Ford Motor Co. v. Ridgway,
  135 S.W.3d 598 (Tex. 2004) ......................................................... 12, 16, 22



                                                 vi
Freedom Commn’cs, Inc. v. Coronado,
  372 S.W.3d 621 (Tex. 2012) (per curiam) ............................................... 30
French v. Chevron U.S.A.,
  896 S.W.2d 795 (Tex. 1995) .................................................................... 33
HECI Exploration Co. v. Neel
  982 S.W.2d 881, 887 (Tex. 1998) ...................................................... 22, 23
Lazarides v. Farris,
  367 S.W.3d 788(Tex. App. – Houston [14th] Dist. 2012, no pet.).......... 30
McMillan v. State Farm Lloyds,
  180 S.W.3d 183 (Tex. App. – Austin 2005, pet. denied) ......................... 12
Noble Mortg. & Invs., LLC v. D&M Invs., LLC,
  340 S.W.3d 65 (Tex. App. – Houston [ 1st Dist.] 2011, no pet.) ....... 22, 37
Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Tex.,
   878 S.W.2d 598 (Tex. 1994) (per curiam)............................................... 30
Provident Life & Accident Ins. Co. v. Knott,
  128 S.W.3d 211 (Tex. 2003) ..................................................................... 24
Scott v. Cannon,
   959 S.W.2d 712 (Tex. App. – Austin 1998, pet. denied) ................... 52, 53
SEI Bus. Sys., Inc. v. Bank One Tex., N.A.,
  803 S.W.2d 838 ....................................................................................... 30
Service Corp. v. Guerra,
   348 S.W.3d 221 (Tex. 2011) ...................................................................... 12
State of California Department of Mental Hygiene v. Bank of
   Southwest National Association,
   354 S.W.2d 576 (Tex. 1962) ...................................................................... 13
Tex. Women’s Univ. v. The Methodist Hosp.,
  221 S.W.3d 267 (Tex. App. – Houston [1st Dist.] 2006, no pet.) ........... 45
Wilson v. Fisher,
  188 S.W.2d 150 (Tex. 1945) ...................................................................... 15



                                                    vii
STATUTES
TEX. CIV. PRAC. & REM. CODE ......................................................................... 25
TEX. CIV. PRAC. & REM. CODE § 16.021(1) ...................................................... 25
TEX. CIV. PRAC. & REM. CODE § 16.021(3) ...................................................... 25
TEX. CIV. PRAC. & REM. CODE § 16.023 .......................................................... 24
TEX. CIV. PRAC. & REM. CODE §§ 16.024 ........................................................ 24
TEX. CIV. PRAC. & REM. CODE § 16.025 ............................................... 21, 22, 24
TEX. CIV. PRAC. & REM. CODE § 16.026 ........................................................... 21
TEX. PROP. CODE § 13.001 .............................................................................. 36
TEX. PROP. CODE § 13.001(A) ....................................................................24, 37
TEX. PROP. CODE § 13.002 ............................................................ 22, 24, 41, 43
TEX. REV. CIV. STAT. ANN. ART. 974A, § 5 ........................................................ 13
TEX. REV. CIV. STAT. ART. 974A ....................................................................... 13
TEX. REV. CIV. STAT., ART 974A, § 1.................................................................. 14
RULES
TEX. R. APP. P. 33.1(A) ................................................................................... 55
TEX. R. EVID. 201(D) ...................................................................................... 30
TEX. R. EVID. 602 .......................................................................................... 28
OTHER AUTHORITIES
William V. Dorsaneo III, 17 Dorsaneo Texas Lit. Guide § 250.02[1][a]
  (Matthew Bender 2012) ........................................................................... 25




                                                     viii
                 NO. 03-14-00535-CV
___________________________________________________

                IN THE COURT OF APPEALS
            FOR THE THIRD DISTRICT OF TEXAS
                    AT AUSTIN, TEXAS
___________________________________________________

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


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

                          APPELLEES’ BRIEF


TO THE HONORABLE COURT:

     NOW COMES Appellees Trails End Homeowners Association, Inc.

and Van Keene, appellees herein and defendants before the trial court

below, who submit their brief in this appeal of the Trial Court in favor of

Appellees, and respectfully show as follows:




                                     1
                        STATEMENT OF THE CASE
         Nature of the Case: This case involves unsubstantiated tort claims

arising from a boundary dispute on real estate located along Lake Travis in

Travis County, Texas. The Trial Court correctly found that Appellant failed

to satisfy his burden of proof on his title-based claims and various related

tort claims, and correctly determined that the evidence presented at trial

established certain Defendants’ ownership of the specific properties at

issue.

         Course of Proceedings: Appellant initiated this action on November

1, 2010, alleging claims against adjacent landowners regarding his claims to

their parcels of land along the shoreline of Lake Travis. (C.R. 3-6) After

cross-motions for summary judgment were denied, this matter was tried to

the bench on May 27-28, 2014. (See R.R. 1:1:20 – R.R. 1:1:24)

         Trial Court Disposition:   After Appellant rested, the Trial Court

granted Defendants’ motion for directed verdict from the bench, dismissing

all of Appellant’s tort claims. (R.R. 2:139:8 – R.R. 2:139:13)        At the

conclusion of the two-day bench trial, the Trial Court granted judgment in

favor of Defendants on all of their requested relief. (See R.R. 4:30:6 – R.R.

4:32:9; see C.R. 91-109 (Final Judgment)) Appellant filed its Motion for

New Trial on June 30, 2014 (C.R. 112-180), and filed this appeal on August



                                       2
28, 2014, (C.R. 208-210).




                            3
            STATEMENT REGARDING ORAL ARGUMENT
        Appellant has not requested oral argument. Appellees believe that

oral argument is not warranted in this appeal because this appeal involves

established law and undisputed facts proven at trial.           Appellant

unquestionably failed to meet his burden to present evidence in support of

his claims, and Appellees supplied more than ample evidence to support

their counterclaims and affirmative defenses.    Accordingly, this case is

appropriate for disposition by memorandum opinion without the necessity

of oral argument. However, to the extent this Court grants Appellant oral

argument, Appellees request an opportunity to present oral argument as

well.




                                     4
           ISSUES PRESENTED (RESTATED)
ISSUE 1.   Whether Appellant can challenge the result in the Trial
           Court based on evidence that was never presented and
           argument that was never asserted or preserved at trial.

ISSUE 2.   Whether Appellant established superior title in the
           Disputed Extended Property and, if so, whether proved
           their claims of adverse possession.

ISSUE 3.   Whether Appellant’s broad challenge to the Trial Court’s
           many findings of fact and conclusions of law on legal and
           factual sufficiency grounds has any merit.




                              5
                     PRELIMINARY STATEMENT
      This is a title and boundary dispute that was commenced nearly 50

years after the filing of the purportedly “botched” plat which Appellant

seeks to set aside. Despite being aware of the property interests owned and

asserted by Defendants since at least 1997, Appellant waited a dozen years

before commencing this action. Appellant’s dispute can be summarized as

an attempt to disturb property rights that have existed for 60+ years based

on language contained in his predecessor’s deed which purportedly

extended the property “to the center of Big Sandy Creek.” As Appellant is

aware, Big Sandy Creek extends around a peninsula comprised of land

owned by Defendants. Nonetheless, Appellant argues that his “extension

property” traverses the portion of Big Sandy Creek nearest his lot, then

continues across 2-3 platted lots on the peninsula to end in the other side of

Big Sandy Creek.

      At trial, Appellant failed to present admissible evidence to prove

either his title-based or tort claims. Defendants, however, presented

conclusive evidence supporting their ownership of the lands at issue, as

well as establishing title by adverse possession. Accordingly, the Trial

Court dismissed Appellant’s claims and granted a judgment in favor of

Defendants on all claims, including their counterclaims. Appellant now



                                      6
challenges multiple aspects of that Final Judgment and its supporting

Findings of Fact by improperly attempting to introduce new arguments as

well as evidence that he never even attempted to offer at trial. Because the

determination of the Trial Court is sound and well-supported by the record,

this Court should affirm.

                          STATEMENT OF THE FACTS
A.      Appellees’ Land in the Trail’s End Subdivision.
        More than 60 years prior to the commencement of this litigation, T.L.

Smith, Jr. (“T.L. Smith”) acquired land along the shores of Lake Travis now

known as the Trails End Subdivision in Travis County, Texas. In 1947, T.L.

Smith divided much of that property to create various lots 1 and shortly

thereafter, divided the remainder of the subdivision in a document that’s

been referred to as the 1962 Re-Plat or Re-Subdivision No. 5 (the “1962

Plat”). 2 With exception of one piece of land (“Lot 56”), from which Lot 139

and 140 were carved out, the 1962 Plat did not modify the existing lots in

the 1947 Plat. 3 More importantly, with respect to Appellant’s property




1   Pltf.’s Exh. 2 (1947 Plat), and R.R. 5:2:7 – 5:2:8 (Plaintiff’s Exhibit 2 admitted into
    evidence).
2   Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6 admitted
    into evidence).
3   Compare Def.s’ Exh. 6 (1962 Plat) with Pltf.’s Exh. 2 (1947 Plat).


                                             7
(“Lot 52”), there was nothing in the 1962 Plat that affected or modified

what was demarcated as Lot 52 in the original 1947 Plat. 4

        After being held by T.L. Smith and his heirs for decades, Defendant

TLS Properties, Ltd. (“TLS Properties”) formally acquired legal title to Lots

139 and 140 and the 1.4777-acre tract in 1998. 5 For a period of at least 14

years, Defendant TLS Properties and its predecessors-in-interest leased

Lots 139 and 140, as well as a 1.4777-acre tract of land adjoining Lot 139

(the “1.4777-acre tract”) to Defendant Trails End Homeowners Association,

Inc. (“TEHOA”) for use as boat access and lakefront recreation area. 6

Finally, in 2008, TEHOA actually purchased Lot 139 and the adjacent

1.4777-acre tract from TLS Properties. 7



4    Id.
5   See Def.s’ Exh. 13 (2004 Lease for Lots 139 and 140), and R.R. 5:2:21 – 5:2:23
    (Defendants’ Exhibit 13 admitted into evidence); see R.R. 2:217:7 – 2:218:12 (Smith
     testifies about the Association’s property leases with TLS Properties since 1994); see
     also R.R. 2:215:6 – 2:217:9 (Smith testimony collectively references Lot 139, Lot 140,
     and the 1.4777-acre tract when referring to “the lots”); see also Def.s’ Exh. 17 (2008
     Deed of Lot 139 from TLS Properties to the Association prior to expiration of the
     2004 Lease), and Def.s’ Exh. 18 (2008 Quitclaim of 1.4777-acre tract from TLS
     Properties to the Association prior to expiration of the 2004 Lease), and R.R. 5:2:24
    – 5:3:6 (Defendants’ Exhibit Nos. 17 and 18 admitted into evidence).
6    R.R. 2:218:8 – 2:218:12 (Smith testimony) (“Q. And did the association use the lots
     for the purposes you mentioned earlier for things like boat access or recreation area
     throughout the time they’ve leased these properties? A. Yes, as far as I know.”); see
     also R.R. 2:215:6 – 2:217:9 (Smith testimony collectively references Lot 139, Lot 140,
     and the 1.4777-acre tract when referring to “the lots”); see R.R. 2:231:2 – 2:231:22
     (Roberts testimony about the Association’s use of the properties).
7    Def.s’ Exh. 17 (2008 Deed for Lot 139); Def.s’ Exh. 18 (2008 Quitclaim for the
     adjoining 1.4777-acre tract).


                                             8
B.       The Disputed Extended Property.
         In 1997, Appellant David Young (“Appellant” or “Young”) acquired

Lot 52 of the Trails End Subdivision (“Lot 52”) 8 through a 1997 deed which

described the land as:

                LOT FIFTY-TWO (52), OF TRAILS END, LAKE
                TRAVIS SUBDIVISION, A SUBDIVISION IN
                TRAVIS COUNTY, TEXAS, ACCORDING TO THE
                RECORDED MAP AND/OR PLAT THEREOF,
                RECORDED IN VOLUME 4, PAGE 331, OF THE
                PLAT RECORDS OF TRAVIS COUNTY, TEXAS. 9

         In this lawsuit and at trial, Young alleged that some portion of Lot 52

(including a purported extension of its side lines to the center of Big Sandy

Creek) encroached upon Lots 139 and 140, and perhaps the adjacent

1.4777-acre tract of land. 10 However, at trial, Appellant did not submit any

evidence to show a conflict between Lot 52 and Defendants’ properties (i.e.,

Lot 139, Lot 140, or the 1.4777-acre tract of land).                 Instead, Appellant

focused on an unsubstantiated allegation that he had acquired – in addition

to Lot 52 – an unplatted parcel of land belonging to his predecessor in title

that purportedly extended side lot lines of Lot 52 across portions of
8    See R.R. 2:110:13 – 2:110:24 (Plaintiff testifies that he acquired Lot 52 in 1996); but
     see Appellate Br. at Tab 8 (1997 Deed for Lot 52). The 1997 Deed attached to
     Appellant’s brief as Tab 8 was never offered or admitted at trial; however, Appellant
     has included it in his appellate record. While Defendants object to the introduction of
     evidence outside the record, reference is hereby made for purposes of context.
9    App. Br. at Tab 8 (1997 Deed for Lot 52). Again, Appellant has improperly included
     this exhibit in his appellate record, even though it was never offered or admitted at
     trial
10   See C.R. 64-77 at ¶¶ 8-9, 22-31 (Plaintiff’s Fourth Amended Original Petition).


                                              9
Defendants’ property and to the outer reaches of Big Sandy Creek.

According to Appellant, T.L. Smith’s filing of the 1962 Plat which created,

among other properties, Lots 139 and 140, purportedly encroached upon

unidentified portions of the Disputed Extended Property. 11                     The figure

below depicts the location and placement of the parcels of land. 12




         At trial, the only expert testimony presented contradicted Appellant’s

claims of a title or boundary dispute.                      Specifically, the evidence

demonstrated that no portion of Lot 139, Lot 140 or the 1.4777-acre tract

encroached upon or conflicted with Lot 52 or the Disputed Extended

Property; 13 and Appellant failed to present any evidence to the contrary.


11   See id.
12   This figure is for explanation only and is not to scale or an accurate, legal description
     of the property.
13   See R.R. 2:142:19 – 2:142:25, and R.R. 2:162:10 – 2:163:7, and R.R. 2:202:7 –
     2:204:20 (Crichton’s testimony about how Lot 139, Lot 140 and the 1.4777-acre tract

                                               10
             STANDARD OF REVIEW AND APPLICABLE LAW
         Appellate courts should give great deference to the fact-finder’s

decisions regarding weight and credibility of testimony and the resolution

of evidentiary conflicts. 14

         A party attacking the complete lack of evidence to support a finding is

reviewed under the same legal sufficiency standard, whether the

determination was by motion for summary judgment, directed verdict, or

otherwise. 15 The reviewing court must consider the evidence in the light

most favorable to the nonmovant to determine whether it “produced more

than a scintilla of probative evidence to raise a fact issue on the material

questions presented.” 16           An appellate court should only sustain a no

evidence challenge to the legal sufficiency of the evidence when: “(a) there

is a complete absence of evidence of a vital fact; (b) the court is barred by

     do not conflict with Lot 52 or the Extended Property, how the “gully” is known as
     “Sandy Creek Arm,” how the “gully” is “an arm or branch of Sandy Creek,” that the
     “gully” exists in between Lot 52 and Lot 140, and how the border for the Extended
     Property lies in the center of the “gully”); see also R.R. 2:218:13 – 2:218:22, and R.R.
     2:220:1 – 2:220:24 (Smith testifies that the “gully” situated between Lot 52 and Lot
     140 is “an arm of . . . [Big Sandy Creek]” and serves as the boundary between Lot 52
     and Lot 140); see also Def.s’ Exh. 20 (2005 Steger & Bizzell Survey, which depicts the
     boundary of Lot 140 as running through the center of the “gully”), and R.R. 5:3:7 –
     5:3:8 (Defendants’ Exhibit 20 admitted into evidence); see also Def.s’ Exh. 21 (2014
     Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit 21 admitted into
     evidence).
14   See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005).
15   City of Keller, 168 S.W.3d at 827 (“the test for legal sufficiency should be the same for
     summary judgments, directed verdicts, judgments notwithstanding the verdict, and
     appellate no-evidence review.”).
16   Best Auto v. Autohaus, LLC, 339 S.W.3d 372, 374–5 (Tex. App.—Dallas 2011, no.
     pet.).

                                              11
rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (c) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (d) the evidence conclusively establishes the

opposite of the vital fact.” 17 More than a scintilla means the evidence “rises

to the level that would enable reasonable and fair-minded people to differ

in their conclusions.” 18

         A challenge to the factual sufficiency of the evidence submitted at trial

is, an argument that a finding is so contrary to the overwhelming weight of

the evidence, it must be clearly wrong and unjust. 19 If the appellant argues

that there is insufficient evidence to support the adverse finding, then that

standard is only applicable on issues in which he did not have the burden of

proof at trial. 20 The appellate court should consider and weigh all of the

evidence in the record to determine whether the evidence supporting the

finding is so weak or the finding is so contrary to the overwhelming weight

of the evidence that the finding should be set aside as “clearly wrong and




17   Service Corp. v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011) (internal quotations
     omitted).
18   Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).
19   Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
20   Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) insufficient evidence standard
     applies when the party without the burden of proof at trial complains of an adverse
     finding for factual sufficiency); McMillan v. State Farm Lloyds, 180 S.W.3d 183, 201
     (Tex. App. – Austin 2005, pet. denied).


                                            12
manifestly unjust.” 21

                       ARGUMENT AND AUTHORITIES
I.       APPELLANT IS BARRED FROM RAISING THE REPLAT
         ARGUMENT FOR THE FIRST TIME ON APPEAL.

         A.     Appellant waived any issue not raised at trial.
         A significant portion of Appellant’s brief is devoted to an argument

that the 1962 Plat was an illegal or botched re-plat under Texas law. 22

According to Appellant, such a re-plat “may not be authorized unless

permission is obtained from all affected land-owners.” 23                      However,

Appellant never raised this issue or presented this argument to the Trial

Court.        Accordingly, this argument is waived and merits no further

consideration. 24

         B.     The re-plat statute at issue does not apply to this case.
         The foundation of Appellant’s “illegal re-plat” argument is TEX. REV.

CIV. STAT. ANN. ART. 974a, § 5. 25 Even a cursory review of the statute


21   See Cain, 709 S.W.2d at 176.
22   See App. Br. at 15 et seq.
23   Id. at 16. Notably, Appellant cites no authority for this point, nor does he explain
     whether such “illegal re-plat” would be voidable or void ab initio.
24   See Duderstadt Surveyors Supply, Inc. v. Alamo Express, Inc., 686 S.W.2d 351, 354
     (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (citing State of California
     Department of Mental Hygiene v. Bank of Southwest National Association, 354
     S.W.2d 576, 581 (Tex. 1962)) (“It is well settled Texas law that an allegation not
     contained in the pleadings nor otherwise raised or proven in the trial court cannot be
     raised for the first time on appeal.”).
25   App. Br. at 15-17; App. Br. At Tab 3 (copy of TEX. REV. CIV. STAT. ART. 974a) (“TEX.
     REV. CIV. STAT. ART. 974a”).


                                             13
reveals that, had Appellant actually preserved this argument, the statute

would nonetheless be wholly inapplicable to the case at bar. For example,

by its own express terms, the statute states that it applies to tracts of land

“situated within the corporate limits of any city in the State of Texas.” 26

The subject properties in this dispute are not located within the city limits,

nor is there any evidence they were within the city limits in 1962.

Moreover, the statute’s purpose was to protect city planners, as evidenced

by its requirement that any plan or plat vacated must receive “the approval

of the City Planning Commission or governing body of such city.” 27 As

Appellant is neither an agent nor representative of a city, he lacks standing

to allege he was entitled to notice 50 years prior to acquiring Lot 52.

Furthermore, notwithstanding Appellant’s unsupported argument to the

contrary, the 1962 Plat did not actually re-plat any portion of Lot 52. A

side-by-side comparison of the two property records reveals that Lot 52 is

clearly delineated and demarcated on the 1947 Plat but not shown at all on

the 1962 Plat. 28        Accordingly, as Defendants have always maintained,




26   Tex. Rev. Civ. Stat., art 974a, § 1.
27   Id. at § 5.
28   Indeed, there was no reason for the 1962 Plat to show the relationship between its
     platting of Lot139, Lot 140 or the 1.4777-acre tract, on the one side, and Lot 52 (or
     even the Extended Property), on the other side, because the evidence establishes that
     there is no conflict between those properties. Supra, note 13.


                                             14
Appellant’s property is simply the same identical Lot 52 shown in the 1947

Plat.

        C.    There has never been a conflict between Lot 52 (or its
              Disputed Extension) and Appellee’s properties.
        Indisputably, Young failed to present any evidence at trial, let alone a

scintilla of evidence, that describes Lot 52 and the Disputed Extended

Property with any reasonable certainty as required by law. 29 On appeal,

Appellant argues that the fact that the Court has the power to declare

property rights premised upon his ambiguous description of Lot 52 and the

Extended Disputed Property,            yet he failed to present any credible or

admissible evidence to the Trial Court to describe or set forth the

boundaries of the Disputed Property. Furthermore, Appellant also failed to

offer any evidence to contradict the testimony of Herman Crichton

(“Crichton”) – the sole testifying property and land survey expert. Thus,

the Trial Court properly disposed of Appellant’s title-based claims for lack

of evidence and granted relief for TEHOA based on the sole expert opinion

presented, which was corroborated by other evidence, 30 and which



29 For a writing’s description of land to be sufficient, it must provide enough data that it
   can identify the land to be conveyed with reasonable certainty. Wilson v. Fisher, 188
   S.W.2d 150, 152 (Tex. 1945); see also Finkelstein v. Carpenter, 795 S.W.2d 897, 898
   (Tex. App. – Beaumont 1990, writ denied) (ambiguities in the identity of land
   intended to be conveyed by a deed is a question of fact for the jury).
30 Supra, note 13.




                                            15
conclusively proved TEHOA’s ownership rights in Lot 139 and the 1.4777-

acre tract. 31

       Assuming Appellant had even established ownership in the Disputed

Extended Property, he never established it conflicted with the properties

owned by TLS Properties and TEHOA.                   Furthermore, Appellant’s brief

presupposes that there is no dispute with his interpretation of the meaning

of “to the center line of Big Sandy Creek” contained in the 1955 Trundle

Deed, treating it as if it clearly establishes a conflict with the lots owned by

TLS Properties and TEHOA. 32 However, the interpretation of this language

was a critical issue at trial, and the evidence established that the only

reasonable interpretation was meant as being the center of that portion of

Big Sandy Creek between Appellant’s Lot 52 and Lot 140 (the lot owned by

TLS Properties), sometimes referred to as the “gully.” 33




31 When the evidence offered to prove a fact simply “create[s] a mere surmise or
   suspicion of the existence of its existence, the evidence is no more than a scintilla and,
   in legal effect, is no evidence.” Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 601
   (Tex. 2004) (internal quotations omitted) (“Evidence that is so slight as to make any
   inference a guess is in legal effect no evidence.”).
32 Without objection, both Smith (TLS Properties’ representative) and Crichton testified

   that they interpreted the phrase “to the center line of Big Sandy Creek” to mean the
   center of the “gully” situated between Lots 52 and 140, and not to the center line of
   that other portion of Big Sandy Creek situated beyond Lot 140 as Appellant would
   contend. Supra, note 13. Compare the foregoing, with R.R. 4:5:21 – 4:6:7 (Plaintiff’s
   closing argument, wherein Plaintiff contends that the 1955 Trundle Deed designates a
   section of Big Sandy Creek that is not the “gully” as the intended center line).
33 Supra, note 13.




                                             16
         In Finding of Fact No. 16, the Trial Court correctly adduced that

“[t]he Extended Property does not conflict with Lot 139, Lot 140, the

1.4777-acre tract, or West Darleen Drive.” 34 Significantly, Appellant offered

no competing evidence, including a survey demonstrating an alternative

boundary, nor did he offer any expert testimony to support his argument as

to where the boundaries should lie. In fact, Appellant has never explained

precisely where the boundaries should lie if the Court were to accept his

position. 35 Accordingly, Appellant never sustained his burden of proof at

trial.

         Furthermore, the Trial Court’s interpretation of the Extended

Disputed Property language is supported by the uncontradicted testimony

of Bruce Smith (“Smith”), TLS Properties’ representative and grandson of

T.L. Smith, 36 who testified that in his view, the area between Lot 52 and Lot

140 is a part of Big Sandy Creek. 37 When examining the Travis County

Appraisal District maps admitted into the record, 38 Brice Smith explained

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


34   C.R. 191-93 at p. 4 (Finding of Fact No. 16); see Supra note 13.
35   At a minimum, this inescapable fact would prevent this Court from ever rendering
     judgment in favor of Appellant, as he requests.
36   R.R. 2:212:10 – 2:212:12; R.R. 2:213:20 – 2:213:21.
37   R.R. 2:218:13 – 2:218:22, and R.R. 2:220:1 – 2:220:24.
38   Def.s’ Exh. 30 (TCAD Map 0007), and R.R. 5:3:10 – 5:3:11 (Defendants’ Exhibit 30
     admitted into evidence).


                                          17
“Sandy Creek Arm,” which is also the same label used for the main area of

the creek (where Appellant apparently believes the extension language is

referring to). 39 Smith also referenced the 2005 Steger & Bizzell survey, and

how that survey showed the centerline of the Sandy Creek Arm as the

boundary between Lot 140 and Lot 52. 40 Smith testified that the boundary

shown on the survey was consistent with his understanding of the boundary

between Lot 140 and Lot 52. 41

         Also     invalidating   Appellant’s   interpretation   is   Crichton’s

uncontroverted testimony that he reviewed property records regarding

adjoining lots in the area, which contained the same extension language as

the Trundle deed, and would have conflicted with platted lots between Lots

53 and 54 and the center of the main arm of Sandy Creek (where Appellant

alleges his property extends). 42        In other words, the Trial Court’s

interpretation of the “extension” language to mean the center of that part of

Sandy Creek that is located between Lot 52 and Lot 140 not only eliminated

conflict between Appellant’s property and TEHOA’s and TLS Properties’

properties, but it harmonized neighboring property boundaries and



39   Id.; R.R. 2:219:7-25.
40   R.R. 2:220:6-19.
41   R.R. 2:220:20-24.
42   R.R. 2:160:21 – 161:11.


                                        18
avoided new boundary conflicts among property owners who are not

parties to this suit. 43

         As for Appellant’s nonsensical suggestion that the arm of Sandy Creek

between Lot 52 and Lot 140 somehow developed or appeared at some point

after the 1947 plat, 44 he points to no evidence to support this claim, and a

review of the 1947 Plat, reveals that it does not even label what constitutes

Big Sandy Creek (it refers to the main area of the creek as Lake Travis), but

does depict the arm of the creek running between lots 52, 53, and 54, and

Lot 56. (Lot 56 was the lot that was eventually re-platted in 1962 to create

Lots 139 and 140). 45           Therefore, Defendants’ interpretation does not

conflict with the 1947 plat and it harmonizes neighboring property

boundaries, while Appellant’s unsupported interpretation would create

unreasonable conflict between platted properties.

         For all these reasons, the Trial Court correctly determined that the

Disputed Extended Property does not conflict with Lot 139, Lot 140, the

1.4777-acre tract, or West Darleen Drive, 46 and Appellant has failed to show


43   See Def.s’ Exh. 20 (2005 Steger & Bizzell Survey), and Def.s’ Exh. 21 (2014 Land
     Survey), and Pltf.’s Exh. 2 (1947 Plat); R.R. 2:162:10 – 163:2.
44   See App. Br. at p. 20 (“Even if the development of a gully took place between the
     period of 1947, when the legal plat was formed, the botched 1962 re-plat, and the
     surveys performed in preparation for the case at bar . . . .”).
45   R.R. 3:60:8-13;
46   See C.R. 181-193 at p. 4 (Findings of Fact No. 16); see also C.R. 181-193 at p. 3 (No.
     2(f)).


                                             19
he is entitled to reversal on his title claims regardless of whether he had

shown title.

II.      THE TRIAL COURT PROPERLY DETERMINED THAT
         APPELLANT’S TITLE-BASED CLAIMS WERE UNTIMELY.
         Although Appellant’s argument – at trial and before this Court – has

centered on an attempt to suggest that Defendants have orchestrated a

campaign to steal “his land,” there has never been any dispute about

whether Appellant owns Lot 52. Instead, as set forth in the preceding

section, the Disputed Extended Property in this lawsuit is an extension of

Lot 52 that Young contends runs over Big Sandy Creek, continues over a

portion of Lot 140, and ends in the western most arm of Sandy Creek. 47

         Lot 139 and Lot 140 were created by the 1962 Plat. Thirty-five years

later, Appellant purchased Lot 52 from a third-party. 48                         Notably,

Appellant’s 1997 Deed did not purport to convey any of the Disputed

Extended Property. 49 In 1998, shortly after Young purchased Lot 52, TLS

Properties was deeded Lots 139 and Lot 140. 50




47   See C.R. 64-77 at ¶¶ 8-9 (Plaintiff’s Fourth Amended Petition); see also Def.s’ Exh. 20
     (2005 Steger & Bizzell Survey), and Def.s’ Exh. 21 (2014 Land Survey).
48   App. Br. At Tab 8 (1997 Deed for Lot 52).
49   Again, Appellant’s original deed – the 1997 Deed – describes the subject property as
     only Lot 52 – not including any extended property. See App. Br. At Tab 8.
50   See Def.s’ Exh. 11, Def.s’ Exh. 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 –
     5:2:20, Defendants’ Exhibits 11 and 12 admitted into evidence).


                                              20
         A.     Adverse Possession 51
         Mistakenly, Appellant contends that the 1962 Plat was “botched”

therefore could never operate to create Lots 139 and 14 and, Texas law

requires that a person bring a suit within ten years to recover real property

held in peaceable and adverse possession by another who cultivates, uses,

and enjoys the property. 52 Where, as is the case here, 53 another party is

claiming the property under a duly registered deed and pays the applicable

taxes on the property, the statute of limitations is only five years. 54

         Appellant’s live pleading judicially admits that he was dispossessed

from the Disputed Extended Property by TLS Properties and/or TEHOA

since his purchase in 1997. 55 Additionally, although TEHOA disputes any

claim that Lot 139 or the 1.4777-acre tract encroaches on Lot 52, Appellant

51   In addition to making a general assertion that “No evidence supported adverse
     possession by [TEHOA],” Appellant challenges many of the individual findings of fact
     and conclusions of law which support the determination of adverse possession.
     Compare App. Br. at pp. 20-23 (challenging adverse possession), with App. Br. at pp.
     24-28 (challenging Findings of Fact Nos. 7-8 and 20-22 and Conclusions of Law Nos.
     40-41 and 43-44). In the interest of efficiency, and to avoid repetition, those issues
     are consolidated into this one section.
52   TEX. CIV. PRAC. & REM. CODE § 16.026 (10-year statute).
53   See Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6
     admitted into evidence).; see Def.s’ Exh. 11, Def.s’ Exh. 12 (1998 Special Warranty
     Deeds), and R.R. 5:2:16 – 5:2:20 (Defendants’ Exhibits 11 and 12 admitted into
     evidence); see Def.s’ Exh. 17 (2008 Deed of Lot 139), and Def.s’ Exh. 18 (2008
     Quitclaim of 1.4777-acre tract), and R.R. 5:2:24 – 5:3:6 (Defendants’ Exhibit Nos. 17
     and 18 admitted into evidence); see R.R. 2:215:6 – 2:216:4 (Smith testifies that TLS
     Properties and its predecessors in interest had paid the taxes on Lot 139, 140 and the
     1.4777-acre tract the entire time they owned those properties).
54   TEX. CIV. PRAC. & REM. CODE § 16.025 (5-year statute).
55   See C.R. 64-77 at ¶¶ 8-9, 22-31 (Plaintiff’s Fourth Amended Original Petition).


                                             21
acknowledged that he was dispossessed of the Disputed Extended Property

since 1998 when TLS Properties – TEHOA’s immediate predecessor in title

to Lot 139 – recorded its deeds for Lots 139 and 140. 56

      Furthermore, aside from Appellant’s admission that he had been

dispossessed from the Disputed Extended Property for nearly twelve years

before filing suit, 57 the law holds that he had, at a minimum, constructive

notice of TLS Properties’ deeds since their filing of public record in 1998.

An instrument that is properly recorded in the proper county is notice to all

persons of the existence of the instrument. 58 Recorded instruments in a

grantee’s chain of title generally establish an irrebuttable presumption of

notice. 59 Additionally, a person may also be charged with constructive

notice for a deed outside his chain of title if facts appearing in the chain of

title through which he claims title would place a reasonably prudent person

on inquiry as to the rights of other parties in the property conveyed. 60

Moreover, Appellant acknowledged that documents filed with the real

property records for Travis County, Texas puts the public on notice of

56 id.
57id.
58 TEX. PROP. CODE § 13.002.

59 Ford, 235 S.W.3d at 617; Noble Mortg. & Invs., LLC v. D&M Invs., LLC, 340 S.W.3d

   65, 76 (Tex. App. – Houston [ 1st Dist.] 2011, no pet.); see also HECI Exploration Co.
   v. Neel, 982 S.W.2d 881, 887 (Tex. 1998) (“The need for stability and certainty
   regarding titles to real property has led courts to hold that real property records can
   constitute constructive notice.”).
60 Noble Mortg., 340 S.W.3d at 76.




                                           22
conveyances. 61 In some circumstances, such as those present in this case,

“[c]onstructive notice creates an irrebuttable presumption of actual

notice”. 62

         It is undeniable that, by the time Appellant commenced this lawsuit

on November 1, 2010, 63 the Disputed Extended Property had been

subdivided for more than 45 years by way of the 1962 Plat. Additionally,

Lots 139 and 140 and the adjoining 1.4777 acre tract – which Appellant

alleges infringe upon his property – had been conveyed by separate deeds

for more than twelve years by the time this lawsuit was filed. Accordingly,

Young’s title-based claims expired no later than 2008 and are, thus, time-

barred as a matter of law. 64

         B.    Limitations began running in 1962.
         In Texas, a cause of action accrues when a wrongful act causes a legal

injury, regardless of when the plaintiff learns of that injury or if all resulting




61   During his opening statement, Appellant states: “Through all these years, the thing I
     understand the most is when someone deeds a plat and records it at the county
     courthouse, the recording is actually just to put people on notice.” R.R. 2:16:12 –
     2:16:15.
62   HECI, 982 S.W.2d at 887.
63   See C.R. 3-6 (Plaintiff’s Original Petition) and Def.s’ Exh. 6 (1962 Plat).
64   Arguably, since Appellant stands in the shoes of his predecessor, the claims actually
     accrued when the 1962 Plat was filed 50 years ago in 1962. See Def.s’ Exh. 6 (1962
     Plat), and R.R. 5:2:14 – 5:2:16 (Defendant’s Exhibit 6 admitted into evidence).


                                             23
damages have yet to occur. 65 Regardless of which limitation period applies,

all periods began running as early as 1962 when T.L. Smith recorded the

1962 Plat, which provided constructive notice to Appellant and his

predecessors in title. 66 Additionally, the two 1998 deeds conveying Lots 139

and 140 to TLS Properties were also recorded nearly 12 years prior to the

commencement of this litigation. 67 Thus, the 3-, 5-, and 10-year statutes of

limitations would bar all of Young’s title-based claims. 68




65   Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003); see also
     Computer Assoc. Int’l., Inc. v. Altai, 918 S.W.2d 453, 461 (Tex. 1994) (“Under Texas
     law, the statute of limitations on tort claims generally begins to run when ‘the
     wrongful act effects an injury, regardless of when the plaintiff learned of such an
     injury.’”) (internal citations omitted); see also Aubrey v. Barlin, 2014 U.S. Dist.
     LEXIS 63411, at *17-20 (W.D. Tex. May 7, 2014) (dismissing under Rule 12(b) claims
     filed in 2012 against a title company for investments lost in 2009 to be barred by two-
     year statute of limitations because “it is the fact of injury – not when it is discovered –
     that matters.”) (emphasis in original).
66   TEX. PROP. CODE § 13.002; Davis v. Howe, 213 S.W. 609, 610-11 (Tex. Com. App.
     1919) (“The law of limitation of actions for land is founded upon notice. The title by
     limitation ripens, primarily, only because, in such manner and for such period of time
     as the different statutes require, notice is given of the hostile claim … ‘[A recorded
     deed has], with its registration, distinct from any office as a conveyance of title, the
     force of notice of the adverse claim to the land.’”). By its explicit language, the Texas
     Recording Statute applies to “A conveyance of real property or an interest in real
     property or a mortgage or deed of trust … .” TEX. PROP. CODE § 13.001(a) (emphasis
     added).
67   See Def.s’ Exh. 11, Def.s’ Exh. 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 –
     5:2:20 (Defendants’ Exhibits 11 and 12 admitted in evidence).
68   TEX. CIV. PRAC. & REM. CODE §§ 16.024 (3-year statute), 16.025 (5-year statute),
     16.026 (10-year statute); see also TEX. CIV. PRAC. & REM. CODE § 16.023 (tacking of
     successive interests).


                                               24
         C.     Defendants established adverse possession to Lot 139,
                Lot 140, and the adjoining 1.4777 acre tract.
         The 3-, 5-, 10-, and/or 25-year adverse possession statutes of

limitations apply to Appellant’s title-based claims because, throughout

those limitation periods, TEHOA and TLS Properties, respectively, have

held record title to Lot 139, Lot 140, and the adjoining 1.4777-acre tract in

peaceable and adverse possession; have cultivated, used, or enjoyed those

properties; and have paid the taxes on those properties. 69 Appellant may

argue that there has not been a showing of adverse possession by TEHOA

or TLS Properties; but the evidence presented at trial clearly established

that for a decades TLS Properties (or its predecessor) utilized these tracts of

land for lake access and rented the same to TEHOA, prior to consummating

the sale of the properties in 2008.

         A cursory review of the evidence before the Trial Court, including

Young’s Fourth Amended Petition, demonstrates that much more than a



69   “Adverse possession” under the Texas Civil Practice and Remedies Code means “an
     actual and visible appropriation of real property, commenced and continued under a
     claim of right that is inconsistent with and is hostile to the claim of another person”
     TEX. CIV. PRAC. & REM. CODE § 16.021(1). “The elements of an adverse possession
     claim or defense depend on the statute on which the claim or defense is based.”
     William V. Dorsaneo III, 17 Dorsaneo Texas Lit. Guide § 250.02[1][a] (Matthew
     Bender 2012). Thus, “possession” and the other elements of an adverse possession
     claim do not apply in the context of an adverse possession statute of limitations
     defense. Note also that “peaceable possession” means “possession of real property
     that is continuous and is not interrupted by an adverse suit to recover property.” TEX.
     CIV. PRAC. & REM. CODE § 16.021(3).


                                              25
scintilla of evidence was presented to the Trial Court to support the findings

of adverse possession. 70

         As the Trial Court determined, during the entire time when it owned

Lot 139 and the 1.4777-acre tract, TLS Properties either used those

properties as preserved areas or parklands, or leased those properties to

TEHOA which used them as preserved areas or parklands. 71 This finding

was supported by the testimony of Smith at trial, where he noted that the

character of Lot 139, Lot 140 and the adjoining 1.4777-acre tract made them

usable as, among other things, parklands. 72 Smith also confirmed that TLS

Properties had leased Lot 139, Lot 140 and/or the 1.4777-acre tract to

TEHOA since at least 1994; 73 and that TEHOA used those properties “for


70   C.R. 64-77 at ¶ 29 (Plaintiff’s Fourth Amended Original Petition).
71   C.R. 181-93 at p. 3 (Finding of Fact No. 7).
72   See R.R. 2:216:5 – 2:216:21 (Smith testimony stating, “Can’t build on it [(as in Lot
     140)] or anything, but it could be used as a boat launch ramp or a park, that sort of
     thing. . . . I suppose you could [use Lot 140 as a place to build docks, thinks like that,]
     out on the road area down there.”); see R.R. 2:216:22 – 2:217:6 (“Q. And given the
     nature of Lot 139 and the adjoining tract, is there much that can be done on it besides
     using it as a park area, a lake access point? A. Right, or access, you know, to the
     lake.”).
73   R.R. 2:217:7 – 2:218:7 (Smith testimony); see also R.R. 2:215:6 – 2:217:9 (Smith
     testimony collectively references Lot 139, Lot 140, and the 1.4777-acre tract when
     referring to “the lots”). See Def.s’ Exh. 13 (2004 Lease), and R.R. 5:2:21 – 5:2:23
     (Defendants’ Exhibit No. 13 admitted into evidence); see also Def.s’ Exh. 17 (2008
     Deed of Lot 139 from TLS Properties to TEHOA prior to expiration of the 2004
     Lease), and Def.s’ Exh. 18 (2008 Quitclaim of 1.4777-acre tract from TLS Properties
     to TEHOA prior to expiration of the 2004 Lease), and R.R. 5:2:24 – 5:3:6
     (Defendants’ Exhibit Nos. 17 and 18 admitted into evidence). For this reason,
     Appellant’s challenge to the sufficiency of Finding of Fact Nos. 7 and 8 must fail. See
     App. Br. at 24-25.


                                               26
things like boat access or recreation area throughout the time . . . [TEHOA]

leased . . . [those] properties.” 74 His testimony was corroborated by the

testimony of June Roberts (“Roberts”) (TEHOA’s representative) 75 that

TEHOA purchased Lot 139 and the 1.4777-acre tract for purpose of allowing

its “homeowners that live on the north end of the subdivision to have a

closer place to launch their boats and have picnics . . . .” 76

       Moreover, the Trial Court’s made numerous findings of fact –

unchallenged in this appeal – which support the finding of adverse

possession, including “[a]t all relevant times, Lot 139 has been suited for

use as a preserved area or parkland;” that “[a]t all relevant times, Lot 140

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

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

underwater;” that “[t]he 1.4777-acre tract is suited for use as a preserved

area or parkland.” 77



74 See R.R. 2:218:8 – 2:218:12 (“Q. And did the association use the lots for the purposes
   you mentioned earlier for things like boat access or recreation area throughout the
   time they’ve leased these properties? A. Yes, as far as I know.”); see also R.R. 2:215:6
   – 2:217:9 (Smith testimony collectively references Lot 139, Lot 140, and the 1.4777-
   acre tract when referring to “the lots”).
75 R.R. 2:229:11 – 2:229:20 (Roberts testimony).

76 R.R. 2:230:15 – 2:231:15 (Roberts testimony).

77 C.R. 181-93 at pp. 1-2 (Finding of Fact Nos. 2(b), (c), 2(e)); see Appellant’s Br. at pp.

   23-28 (Finding of Fact Nos. 2(b) and 2(c) are not among Appellant’s laundry list of
   challenges to specific Findings of Fact and Conclusions of Law, and Appellant’s
   specific challenge to Finding of Fact No. 2(e) does not address the issue).


                                            27
         Even Appellant’s untimely attempt to discredit Smith’s testimony as

speculative 78 fails because Smith’s testimony is uncontroverted and based

on personal knowledge. Appellant did not object to Smith’s testimony on

speculation or any other grounds, including lack of personal knowledge;

and Smith testified that he had actual knowledge of how TEHOA used Lot

140 during the lease period. 79 Finally Smith’s testimony was corroborated

by Roberts, who testified that TEHOA had been using Lot 139, Lot 140

and/or the 1.4777-acre tract as a boat launch and/or parkland during their

lease of those properties, and up until the time when they purchased Lot

139 and the 1.4777-acre tract. 80




78   Appellant’s Br. at p. 25.
79   Use of the phrase “as far as I know” does not render Smith’s testimony legally
     incompetent for lack of personal knowledge. To the contrary, the evidence in the
     record supports a finding that Smith, as the principal of TLS Properties, which owned
     Lot 140 and leased it to TEHOA, had personal knowledge of the matter. See TEX. R.
     EVID. 602; see also Fisher v. Beach, 671 S.W.2d 63, 67 (Tex. App. – Dallas 1984, no
     writ) (holding in a defamation case that the following deposition testimony was
     sufficient to reveal that plaintiff “had actual knowledge of the [allegedly
     slanderous] communications prior to . . . [an] indictment: Q [DEFENSE COUNSEL]:
     So you are saying that Dale Long . . . talked to you and said that Mr. Beach came down
     and said, I want to file criminal charges against Sam Fisher? A: Yes. Q: And this was
     before you were indicted, this was before you were served with a warrant? A: As far
     as I know, yes, sir.” (emphasis added)).
80   See R.R. 2:231:2 – 2:231:22 (Roberts testimony); see R.R. 2:218:1 – 2:218:12 (Smith
     testifies about TEHOA’s property leases with TLS Properties since 1994).


                                             28
III. THIS COURT SHOULD AFFIRM THE FINDINGS OF FACT
     AND CONCLUSIONS OF LAW BECAUSE THEY ARE
     LEGALLY SUFFICIENT AND PROPER.
        Appellant concludes his brief with a laundry list of purported errors

in the Trial Court’s Findings of Fact and Conclusions of Law, while

convoluting the applicable standards of review. 81 Appellant’s arguments

are incorrect and insupportable, and this Court should affirm the Final

Judgment. In further support of his position, Appellant also seems to argue

that the Findings of Fact are legally insufficient under a “no evidence”

standard of review. 82 The following responds to remaining challenges

generically presented on pages 24-27 of the Appellant’s Brief.

        A.     Appellant improperly attempts to disturb the Trial
               Court’s findings of fact with evidence never offered or
               introduced at trial.
        Disturbingly and nonsensically, much of Appellant’s challenge to the

Trial Court’s Findings of Fact is premised upon purportedly “conclusive”

evidence that Appellant never even attempted to offer or introduce at trial.

Instead, Appellant attempts to circumvent established evidentiary rules and

standards of review by improperly inserting substantive evidence at the

appellate stage and has the audacity to claim that the Trial Court’s findings


81   See Appellant’s Br. at pp. 4, 13-14, 23-28 (arguing the standard of review).
82   Compare Appellant’s Br. at pp. 23-24, 27 (arguing the standard of review), with
     Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) (“no evidence” standard of
     review).


                                          29
were erroneous because they do not reflect consideration of evidence that

was never even presented.

         Central to Appellant’s argument is his insertion of instruments into

evidence on appeal (through an improper request for judicial notice to this

Court) 83 which were never furnished to the Trial Court, including the 1997

Deed by which Appellant acquired his interest in Lot 52. 84 The very fact


83   Young incorrectly attempts requests this Court take judicial notice to improperly
     supplement the appellate record with new evidence. See, e.g., App. Br. at p. 5 n.1
     (citing authorities). Defendants acknowledge that appellate courts may judicially
     notice facts for the first time on appeal. See Freedom Commn’cs, Inc. v. Coronado,
     372 S.W.3d 621, 623 (Tex. 2012) (per curiam); see Office of Pub. Util. Counsel v. Pub.
     Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (per curiam); see SEI Bus.
     Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 840 (Tex. App. – Dallas 1991, no
     writ); see TEX. R. EVID. 201(d). Typically, “appellate courts take judicial notice of facts
     outside the record only to determine jurisdiction over an appeal or to resolve matters
     ancillary to decisions which are mandated by law (e.g., calculation of prejudgment
     interest when the court renders judgment).” SEI Bus. Sys., 803 S.W.2d at 841. But
     they do not judicially notice facts “which go to the merits of a dispute” because they
     are not a trier of fact. Id. (declining to judicially notice on appeal of the contents of a
     certified copy of amended articles of incorporation from the Texas Secretary of State’s
     corporation files offered to prove a disputed fact); Freedom Commn’cs, 372 S.W.3d at
     623-24 (judicially noticing on appeal the contents of a plea agreement admitting
     judicial misconduct, but only to review its effect on appellate jurisdiction, and not the
     merits of appeal); see also TEX. R. EVID. 201(d) (cannot judicially notice a fact “subject
     to reasonable dispute”). Young relies on a sweeping generalization of the law to offer
     “evidence” that goes to the merits of the parties’ dispute and this appeal and/or that is
     reasonably questionable in terms of accuracy. See, e.g., App. Br. at p. 8 n.3 (request
     for judicial notice of disputed facts). And the cases he cites for support are
     distinguishable. See Office of Pub. Util. Counsel, 878 S.W.2d at 600 (cited in Young’s
     brief) (judicially noticing on appeal a published Public Utility Commission of Texas
     ratemaking order that was “capable of accurate and ready determination by resort to
     a published record whose accuracy cannot reasonably be questioned” (emphasis
     added)); see Lazarides v. Farris, 367 S.W.3d 788, 799(Tex. App. – Houston [14th]
     Dist. 2012, no pet.) (judicially noticing on appeal the fact that minutes of a City
     Council meeting were published on the City’s website, as opposed to the contents of
     those minutes, because the accuracy of such a fact was not reasonably questionable).
84   Appellant’s Br. at p. 25.


                                               30
that Appellant deems it necessary to insert Tab 8 to his Appellant’s Brief

(the 1997 Deed) into the record for the first time on appeal 85 belies his

argument that the Trial Court’s determination in Finding of Fact No. 14

that, “Plaintiff did not offer any credible evidence that he owns the

Extended Disputed Property, as described above [as ‘[a] parcel of land

between the extension of the side lines of Lot 52 to the center line of Big

Sandy Creek’].” 86

         The Trial Court was only presented with three instruments relevant to

Appellant’s alleged chain of title: the 1947 Plat, the 1955 Trundle Deed, and

the 1962 Plat. 87 None of those instruments evidence the conveyance of Lot

52 or the Disputed Extended Property to Appellant, which is a simple fact

discrediting Appellant’s ownership claim. Appellant’s failure to meet his

burden at trial cannot be cured through the introduction of entirely new

evidence on appeal. Additionally, the instrument Appellant attempts to

offer on appeal further discredit his claim because, although the 1997 Deed




85   Appellant’s Br. at Tab 8 (1997 Deed); Defendants object to the inclusion and insertion
     of Tab 8 into the record for any purpose.
86   C.R. 181-93 at p. 4 (Finding of Fact No. 14); see C.R. 181-93 at p. 2 (Finding of Fact
     No. 2(d), which describes the Disputed Extended Property).
87   Pltf.’s Exh. 2 (1947 Deed), and R.R. 5:2:7 – 5:2:8 (Appellant’s Exhibit 2 admitted into
     evidence); Pltf.’s Exh. 4 (1955 Trundle Deed), and R.R. 5:2:10– 5:2:11 (Appellant’s
     Exhibit 4 admitted into evidence); Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16
     (Defendants’ Exhibit 6 admitted into evidence).


                                              31
conveys Lot 52 to Appellant, it makes no mention of the Disputed Extended

Property. 88

         Similarly, Appellant’s challenge to the Trial Court’s determination

that the Disputed Extended Property did not conflict with Lot 139, 140, or

the 1.4777 acre tract is entirely dependent upon the same improper

introduction of evidence. 89           In addition to the reasons set forth above

regarding the propriety of challenging factual findings based on evidence

never submitted at trial, the Trial Court’s findings regarding the lack of

conflict between Defendants’ properties and the Disputed Extended

Property is based upon its determination that the Extended Disputed

Property, if any, owned by Appellant consisted only of the underwater

portion of land that was in the center of Big Sandy Creek arm that ran

between Lot 52 and Lots 139 and 140. In other words, the Trial Court

properly determined that any extended portion conveyed to Appellant (or

his predecessors) did not cross Big Sandy Creek into the peninsula that

consists of Lot 139 and Lot 140.

         Contrary to Appellant’s challenge, the meaning of the phrase “to the

center line of Big Sandy Creek” in the 1955 Trundle Deed was considered

and interpreted by the Trial Court after the presentation of proper

88   Appellant’s Br. at Tab 8 (1997 Deed).
89   App. Br. at p. 25; see also C.R. 181-93 at p. 4. (Finding of Fact No. 16).


                                               32
evidence. 90 Without objection, both Smith and Crichton testified that they

interpreted the phrase “to the center line of Big Sandy Creek” to mean the

center of the portion of Big Sandy Creek to the west of Lot 140 or the

portion of the creek situated between Lots 52 and 140, and not across the

peninsula to the center line of that other portion of Big Sandy Creek

situated beyond Lot 140. 91



90   A court may construe an unambiguous deed or other written instrument as a matter
     of law. French v. Chevron U.S.A., 896 S.W.2d 795, 796 (Tex. 1995); Boulanger v.
     Waste Mgmt. of Tex., 403 S.W.3d 1, 6 (Tex. App. – Houston [1st Dist.] 2012, pet.
     denied). “If the language is unambiguous, the court’s primary duty is to ascertain the
     intent of the parties from the language of the deed by using the ‘four corners’ rule.”
     Id. “The ‘four corners’ canon of construction means that the court must look at the
     entire instrument to ascertain the intent of the parties.” Id. at 797. “The decision of
     whether an ambiguity exists is a question of law.” Boulanger, 403 S.W.3d at 6. “If
     the deed is worded in such a way that it can be given a definite or certain legal
     meaning, then it is not ambiguous and the court will be confined to the writing.” Id.
     “A mere disagreement about the proper interpretation of a deed, however, does not
     make the deed ambiguous; the instrument is ambiguous only if, after application of
     the rules of construction, the deed is reasonably susceptible to more than one
     meaning.” Id. If the deed is ambiguous, then the court may consider the parties’
     interpretations of the deed through extrinsic evidence. See id. at 5-6.
91   See R.R. 2:218:13 – 2:218:22, and R.R. 2:220:1 – 2:220:24 (Smith testifies that the
     “gully” situated between Lot 52 and Lot 140 is “an arm of . . . [Big Sandy Creek]” and
     serves as the boundary between Lot 52 and Lot 140); see R.R. 2:142:19 – 2:142:25,
     and R.R. 2:162:10 – 2:163:7, and R.R. 2:202:7 – 2:204:20 (Crichton’s testimony
     about how Lot 139, Lot 140 and the 1.4777-acre tract do not conflict with Lot 52 or the
     Extended Property, how the “gully” is known as “Sandy Creek Arm,” how the “gully”
     is “an arm or branch of Sandy Creek,” that the “gully” exists in between Lot 52 and
     Lot 140, and how the border for the Extended Disputed Property lies in the center of
     the “gully”); see also see also Def.s’ Exh. 20 (2005 Steger & Bizzell Survey, which
     depicts the boundary of Lot 140 as running through the center of the “gully”), and
     R.R. 5:3:7 – 5:3:8 (Defendants’ Exhibit 20 admitted into evidence); see also Def.s’
     Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit 21 admitted
     into evidence). Compare the foregoing, with R.R. 4:5:21 – 4:6:7 (Appellant’s closing
     argument, wherein Appellant contends that the 1955 Trundle Deed designates a
     section of Big Sandy Creek that is not the “gully” as the intended center line).


                                              33
         Lot 52 does not appear on the 1962 Plat – since Lot 52 is located on

the side of the creek opposite Lots 139 and 140, and because the 1962 Plat

was not intended to affect either Lot 52 or its purportedly extended

property, T.L. Smith had no reason to identify Lot 52 in the 1962 Plat. 92

This inference is supported by the record. 93 The 1962 Plat was never made

subject to the permission of Trundle or her successors in interest because

the 1962 Plat never touched upon Lot 52 or its extended property; 94 and so

there was no reason for the Trial Court to disregard the 1962 Plat.

         Applying the same logic (or lack thereof), Appellant challenges

Finding of Fact No. 3, 95 on the basis that there is no evidence that T.L.

Smith “could record” the 1962 Plat, or whether T.L. Smith “could . . . show a

clear chain of title” for the 1962 Plat because Appellant wants to introduce

new evidence to suggest this plat was voidable. 96 Appellant also argues that

his challenge to the 1962 Plat also renders the subsequent conveyance of




92   See id. It is also worth noting that the 1947 Plat depicts the “gully” as being situated
     between Lot 52 and Lot 56, with the latter eventually becoming, among other lands,
     Lots 139 and 140 per the 1962 Plat. See Pltf.’s Exh. 2 (1947 Plat), and R.R. 3:2:7 –
     3:2:8 (Appellant’s Exhibit 2 admitted into evidence); see Def.s’ Exh. 6 (1962 Plat),
     and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6 admitted into evidence).
93   See id.
94   See id.
95   C.R. 181-93 at p. 3 (Finding of Fact No. 3).
96   Compare C.R. 181-93 at p. 3 (Finding of Fact No. 3), with Appellant’s Br. at p. 24
     (challenge to “Item 3”).


                                              34
Lot 140 voidable under the legal canon of nemo dat quod non habet. 97

Setting aside the unnecessary statements Appellant attempts to insert into

the findings, the uncontradicted evidence – admitted without objection –

demonstrates that the Travis County public records reflect that the 1962

Plat was filed of record in 1962, thereby creating Lots 139 and 140, which

were subsequently conveyed as noted in the Findings of Fact. 98

         Accordingly, setting aside the illogical argument that the Trial Court’s

determination was flawed because it failed to consider “conclusive”

evidence that was never offered by Appellant, it is reasonable to conclude

that the Trial Court would afford little weight and credibility to Appellant’s

argument in light of the 1962 Plat, subsequent conveyances, and unrefuted

testimony regarding the location of the “center of Big Sandy Creek” with

respect to the properties at issue. 99




97   Appellant’s Br. at pp. 25-26.
98   See Def.s’ Exh. 6 (1962 Plat, which states the date of recordation with the Travis
     County land records), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6 admitted into
     evidence); Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds); R.R. 5:2:16 – 5:2:20
     (Defendants’ Exhibits 11 and 12 admitted into evidence);
99   See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005) (explaining how
     appellate courts should give great deference to the fact-finder’s decisions regarding
     weight and credibility of testimony and the resolution of evidentiary conflicts).


                                             35
         B.     Even   if   Appellant’s  untimely  evidence    were
                considered,    Appellant   nonetheless   fails   to
                “conclusively” prove his ownership of the Extended
                Disputed Property.
         Appellant argues that “conclusive evidence” regarding a written

instrument is binding on the Trial Court; that the 1955 Trundle chain is

“binding” conclusive evidence of his ownership of the Extended Disputed

Property; and that it was reversible error for the Trial Court to disregard

such binding conclusive evidence in favor of other evidence that

contradicted Appellant’s claim of ownership. 100 The 1955 Trundle Deed

included the language “to the center line of Big Sandy Creek,” which the

Trial Court correctly interpreted in favor of Defendants as explained above

with respect to Finding of Fact No. 14. Additionally, the 1955 Trundle Deed

was not recorded until 1978, nearly sixteen years after the 1962 Plat was

recorded, thereby rendering TEHOA’s ownership claims senior to

Appellant’s per the Texas Recording Statute, TEX. PROP. CODE § 13.001. 101

Under the Texas Recording Statute, a bona fide purchaser prevails over

a holder of a prior unrecorded deed or other unrecorded interest in the




100   See Appellant’s Br. at pp. 23-24, 27.
101   Compare Pltf.’s Exh. 4 (1955 Trundle Deed), and R.R. 5:2:10– 5:2:11 (Appellant’s
      Exhibit 4 admitted into evidence), with Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 –
      5:2:16 (Defendants’ Exhibit 6 admitted into evidence).


                                             36
same property; 102 and Conclusion of Law Nos. 44 and 45, which Appellant

has not specifically challenged in this appeal, state that TEHOA was a “bona

fide purchaser” of Lot 139 and the 1.4777-acre tract. 103 Notably, Appellant

does attempt to challenge the Trial Court’s findings that Defendants were

unaware of the potential conflict with Appellant’s purported property

rights. 104

         Appellant’s challenge is also confusing because TEHOA never

purchased Lot 140; It only purchased and claimed ownership of Lot 139

and the 1.4777-acre tract. 105 The plain language of Finding of Fact No. 22

does not suggest otherwise. 106             This challenge is also incorrect and

unsupported because (a) the portion of the record that Appellant cites to in

support of his assertion is an excerpt from TEHOA’s closing arguments

addressing the unrelated issue of attorney fees, 107 (b) a non-existent portion

102   TEX. PROP. CODE § 13.001(a) (“A conveyance of real property or an interest in real
      property or a mortgage or deed of trust is void as to a creditor or to a subsequent
      purchaser for a valuable consideration without notice unless the instrument has
      been acknowledged, sworn to, or proved and filed for record as required by law.”);
      Noble Mort. Invs., LLC v. D&M Invs., LLC, 340 S.W.3d 65, 75-76 (Tex. App. –
      Houston [1st Dist. 2011, no pet.) (“A bona fide purchaser is one who acquires
      property in good faith, for value, and without notice, constructive or actual, of any
      third party claim or interest.”).
103   C.R. 181-93 at pp. 7-8 (Conclusion of Law Nos. 45 and 46).
104   Appellant’s Br. at p. 26.
105   Def.s’ Exh. 17-18 (2008 Deed and 2008 Quitclaim), and 3:2:24 – 3:3:6 (Defendants’
      Exhibits 17 and 18 admitted into evidence).
106   Compare C.R. 181-93 at pp. 4-5 (Finding of Fact No. 22), with Appellant’s Br. at p.
      26 (challenging Finding of Fact No. 22).
107   Appellant’s Br. at p. 26 (citing TEHOA’s closing argument at R.R. 3:22:6 – 3:22:17).


                                             37
of the Reporter’s Record; 108 and as explained with respect to Finding of

Fact No. 20, the testimony transcribed on page 34 of volume 3 of the

reporter’s record is evidence of nothing but a vague and ambiguous

statement by Roberts that she had at unspecified times observed Appellant

erecting gates to stop people from accessing unidentified property. 109

         C.     The Trial Court correctly determined the location and
                metes and bounds of the property and road at issue.
         Inexplicably, Appellant alleges that “no evidence at all” was presented

to the Trial Court to support findings regarding the location of the property

and road at issue.          TEHOA acquired the 1.4777-acre tract from TLS

Properties under the 2008 Quitclaim. 110 Crichton testified that he used,

among other things, the property descriptions in the 2008 Quitclaim to

prepare his 2014 Land Survey. 111 The 2008 Quitclaim clearly describes the

1.4777-acre tract as adjoining Lot 139. 112. The 2014 Land Survey clearly


108   Appellant’s Br. at p. 26 (nonexistent record citation of line 35).
109   R.R. 3:34:22-3:34-25 (Roberts testimony)
110   See Def.s’ Exh. 18 (2008 quitclaim), and R.R. 5:3:5 – 5:3:6 (Defendants Exhibit 18
      admitted into evidence).
111   See R.R. 2:150:13 – 2:151:5 (Crichton testifies that Defendants’ Exhibit 18 is “a
      quitclaim deed from TLS Properties to Trails End Homeowners Association that
      describes a tract that was unplatted but adjacent to the Trails End subdivision –
      resubdivision No. 5 . . . [and] is a 1.4-acre tract that is described by metes and
      bounds;” and that he used the property descriptions therein to prepare the 2014
      Land Survey); see also R.R. 2:150:13 – 2:150:21 (Crichton testifies that Defendants’
      Exhibit 18 “describes . . . [the 1.4777-acre tract] by metes and bounds”).
112   Def.s’ Exh. 18 at p. 3 (Addendum A of the 2008 Quitclaim Deed states, “Beginning at
      the western most point of Lot 139 . . . follow the western line of Lot 139 N 58
      degrees 53 minutes E to a point 122.81 feet from point of beginning. Said point is

                                             38
depicts both Lot 139 and the 1.4777-acre tract as adjoining properties with

only West Darleen Drive running between them (West Darleen Drive,

including the portion known as West Darleen Drive Extension, are referred

to herein collectively as “West Darleen Drive”); and Crichton further

testified that West Darleen Drive was located adjacent to both Lot 139 and

the 1.4777-acre tract (i.e., the roadway runs through a portion of Lot 139

and the 1.4777-acre tract ). 113 This corresponds to the depiction of West

Darleen Drive in the 1962 Plat, which also shows the roadway as running

through Lots 139 and 140 and far from the portion of Big Sandy Creek

situated between Lots 52 and 140. 114 As Crichton testified, the 2014 Land

Survey was prepared using, among other things, pins in the ground and an

accurate and reliable GPS surveying device. 115                   Finally, contrary to



      also the intersection of the extension of the southern lot line of Lot 134 and the
      western lot line of Lot 139.” (emphasis added)).
113   Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit 21
      admitted into evidence); see R.R. 2:164:7 – 2:164:13 (Crichton’s testimony about the
      location of West Darleen Drive Extension).
114   Compare Def.s’ Exh. (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6
      admitted into evidence), with Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 –
      5:3:9 (Defendants’ Exhibit 21 admitted into evidence); see also R.R. 2:162:10 –
      2:163:7, and R.R. 2:202:7 – 2:204:20 (Crichton’s testimony about how Lot 139 and
      the 1.4777-acre tract do not conflict with Lot 52 or the Extended Disputed Property,
      how the “gully” is known as “Sandy Creek Arm,” how the “gully” is “an arm or branch
      of Sandy Creek,” that the “gully” exists in between Lot 52 and Lot 140, and how the
      border for the Extended Disputed Property lies in the center of the “gully”).
115   See R.R. 2:154:4 – 2:155:22 (Crichton testifies, in part, as to the preparation of the
      2014 Land Survey, including the use of pins and GPS technology); see also R.R.
      2:147:15 – 2:148:22, R.R. 2:150:6 – 2:151:5 (Crichton testifies that he also reviewed

                                              39
Appellant’s assertion, Finding of Fact No. 2(f) does not establish that the

2014 Land Survey “show[s] the entirety of the [West Darleen Drive]

extension;” rather, it establishes that those portions of West Darleen Drive

depicted in the 2014 Land Survey are accurate, as evidenced by the

following statement: “West Darleen Drive is properly depicted in the 2014

Land Survey.” 116 Accordingly, the findings of fact which correspond to the

location of the properties and road at issue are supported with legally

sufficient evidence.

         D.     The conclusive evidence demonstrates Appellant
                repeatedly and knowingly trespassed on TEHOA’s
                property and the Trial Court appropriately enjoined
                further trespass.
                1.     Appellant possessed Constructive and Actual Notice
         In a series of illogical and unsupported assertions, Appellant

challenges the Trial Court’s conclusions of law related to the constructive

notice imputed upon Appellant as a result of the filing of certain public

records. 117 Specifically, Appellant claims that there could be no constructive

notice to him (or his predecessors) that Lot 52 was affected by the 1962 Plat

because the plat was “botched.” Therefore, (according to Appellant), the


      the 1947 Plat, the 1962 Plat, the Steger & Bizzell Survey, the 2008 Deed, and the
      2008 Quitclaim to prepare the 2014 Land Survey).
116   Compare Appellant’s Br. at p. 24 (challenge to “Item 2f”), with C.R. 181-93 at pp. 2-3
      (Finding of Fact No. 2(f)).
117   Appellant’s Br. at p. 27-28 (challenging Items Nos. 40, 41, 43, and 44)


                                              40
“botched” 1962 Plat prevented Appellant (and his predecessors) from

receiving notice of the claims by T.L. Smith in Lot 139, Lot 140, and the

1.4777 acre tract and further prevented notice of the subsequent filings of

the 1998 Deeds to TLS and 2008 Deeds from TLS to TEHOA.

         All of these assertions are made by Appellant without any evidentiary

or legal support. As explained with respect to Finding of Fact No. 16, there

was no reason for the 1962 Plat to show the relationship between its

platting of Lots 139 and 140, on the one side, and Lot 52 (or even the

Extended Disputed Property), on the other side, because the evidence

establishes that there is no conflict between those properties. Moreover,

established legal authority further deems that Appellant and his

predecessors in title possessed constructive notice of Lot 139 and Lot 140,

as well as the 1.4777-acre tract, as early as 1962 when T.L. Smith recorded

the 1962 Plat in the Travis County, Texas land records. 118 Registration of

the 1962 Plat had “the force of notice of the adverse claim to the land.” 119



118   See TEX. PROP. CODE § 13.002; see Davis v. Howe, 213 S.W. 609, 610-11 (Tex.
      Comm’n App. 1919, judgm’t adopted) (“The law of limitation of actions for land is
      founded upon notice. The title by limitation ripens, primarily, only because, in such
      manner and for such period of time as the different statutes require, notice is given
      of the hostile claim. … ‘[A registered deed has], with its registration, distinct from
      any office as a conveyance of title, the force of notice of the adverse claim to the
      land.’”). See Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit
      6 admitted into evidence).
119   See Davis, 213 S.W. at 611.


                                              41
         The assertion that “[t]here is no Lot 57 on the 1947 [P]lat” is also

incorrect because Lot 57 does in fact appear on the 1947 Plat.                       It its

referenced by the number “57,” which appears towards the center of the

1947 Plat, just to the right of the word “scenic” and above the notation “171

Ac.” 120

         Moreover, Appellant does not offer any explanation, evidence or legal

support for his tortured syllogism that if the 1962 Plat was “botched,” and if

Appellant could not have known about the 1962 Plat because it was

“botched,” then Appellant could not have had constructive notice in or after

1998 about TLS Properties’ and TLS Operating’s respective claims of title to

Lot 140 – the only property which the Disputed Extended Property could

conflict – under the recorded 1998 Special Warranty Deeds (including the

1998 TLS Properties Deed). 121            Regardless of whether the 1962 Plat is

“botched,” it remains undisputed that Defendants’ deeds were recorded in

the Travis County land records no later than 1998; and those recordings

alone constituted constructive notice to the world of Defendants’ claims of

title. 122 Appellant failed to offer any evidence at trial to contradict the


120   See Pltf.’s Exh. 2 (1947 Plat), and R.R. 3:2:7 – 3:2:8 (Appellant’s Exhibit 2 admitted
      into evidence).
121   Compare Appellant’s Br. at p. 28 (Appellant’s challenge to Conclusion of Law No.
      43), with C.R. 181-93 at p. 7 (Conclusion of Law No. 43).
122   See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
      (Defendants’ Exhibits 11 and 12 admitted into evidence). See Davis v. Howe, 213

                                              42
descriptions of the properties in those recordings. 123 Thus, as a result of

each recording, Appellant had constructive notice no later than 1998 that

Defendants (and their predecessors in title) claimed ownership in Lots 139,

Lot 140, and the adjoining 1.4777 acre tract by title or color of title.” 124

         Furthermore, despite his unsupported denials to the contrary,

Appellant had actual and constructive notice of the 1962 Plat extension of

West Darleen Drive (the unpaved portion). 125 First, Appellant admitted

that he knew about the existence, use and additional construction of West

Darleen Drive as a public road as early as 1997; and that he could identify

West Darleen Drive in the 1962 Plat, which was recorded in 1962. 126 Thus,

there is legally sufficient evidence that Appellant had both actual and

constructive knowledge of West Darleen Drive (including any unpaved

portions) running through Lots 139 and 140. 127 Equally important, none of


      S.W. 609, 610-11 (Tex. Comm’n App. 1919, judgm’t adopted) (“The law of limitation
      of actions for land is founded upon notice. The title by limitation ripens, primarily,
      only because, in such manner and for such period of time as the different statutes
      require, notice is given of the hostile claim. … ‘[A registered deed has], with its
      registration, distinct from any office as a conveyance of title, the force of notice of the
      adverse claim to the land.’”).
123   See Appellant’s Br. at p. 28 (Appellant’s challenge to Conclusion of Law No. 43 and
      44).
124   See C.R. 181-93 at p. 7 (Conclusion of Law No. 43); see also Def.s’ Exh. 11, 12 (1998
      Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20 (Defendants’ Exhibits 11 and 12
      admitted into evidence). See Davis, 213 S.W. at 610-11.
125   Appellant’s Br. at p. 26 (challenging Item No. 20).
126   R.R. 2:109:17-2:113:22, R.R. 2:111:4-2:111:7.
127   See also TEX. PROP. CODE § 13.002, and Davis v. Howe, 213 S.W. 609, 610-11 (Tex.
      Comm’n App. 1919, judgm’t adopted) (“The law of limitation of actions for land is

                                                43
Appellant’s “evidence” supports his challenge to the sufficiency of the Trial

Court’s findings. For example, he cites vague, convoluted, and self-serving

passages in his trial testimony that actually establish nothing. 128 Appellant

also references citations that either fail to address the issue of notice or

simply do not exist. 129 Although Appellant could not identify where he

initially erected his blockade, he conceded “these are slightly off my

property now….” Appellate courts should give great deference to the fact-

finder’s decisions regarding weight and credibility of testimony and the

resolution of evidentiary conflicts; 130 and such deference favors a holding

that Finding of Fact No. 20 is legally sufficient.

         Finally, it cannot be said that Appellant “defended any notice

vigorously.” Again, Appellant testified that he had actual knowledge about

the existence, use and additional construction of West Darleen Drive as a

public road in the Darleen’s Landing area since as early as 1996 or 1997. 131

But he waited until 2010 to file the underlying lawsuit; 132 and never alleged


      founded upon notice. The title by limitation ripens, primarily, only because, in such
      manner and for such period of time as the different statutes require, notice is given
      of the hostile claim. … ‘[A registered deed has], with its registration, distinct from
      any office as a conveyance of title, the force of notice of the adverse claim to the
      land.’”).
128   Appellant’s Br. at p. 26 (citing to R.R. 2:87:5 – 2:87:8, and R.R. 2:87:17 – 2:87:21).
129   Appellant’s Br. at p. 26 (citing to R.R. 3:22:6 – 3:22:14 and R.R. 3:34:35).
130   See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005).
131   R.R. 2:109:17 – 2:113:8 (Appellant testimony).
132   C.R. 3-6 (Plaintiff’s Original Petition filed Nov. 1, 2010).


                                              44
any affirmative defenses – whether for limitations, laches, or otherwise – to

any of TEHOA’s counterclaims, including those concerning 133 West Darleen

Drive.

                2.     Appellant Repeatedly Trespassed on Defendant’s Lands.
         To establish a claim against Appellant for trespass, TEHOA was only

required to prove the following: (1) TEHOA owned or had a lawful right to

possess the subject real property; (2) Appellant physically, intentionally,

and voluntarily entered onto the subject real property; and (3) said entry

caused injury to TEHOA’s right of possession to the subject real

property.” 134 The evidence establishes that TEHOA owned Lot 139 and the

1.4777-acre tract under the 2008 Deed and 2008 Quitclaim, respectively; 135

that, as established above with respect to Finding of Fact No. 26, Appellant

did not have TEHOA’s permission to block West Darleen Drive; 136 and that,

as explained with respect to Finding of Fact Nos. 24, Appellant physically,

intentionally, and voluntarily entered on Lot 139 and/or the 1.4777-acre

133   R.R. 2:163:14 – 2:164:13 (Crichton testifies that neither the gate nor the rocks were
      on Lot 52 when he visited the property, but rather the rocks were “in the right-of-way
      for West Darleen” that is adjacent to Lot 139 and the 1.4777-acre tract).
134   E.g., Tex. Women’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 286 (Tex. App. –
      Houston [1st Dist.] 2006, no pet.) (trespass elements).
135   Def.s’ Exh. 17, 18 (2008 Deed and 2008 Quitclaim), and R.R. 5:2:24 – 5:2:25, 5:3:5
      – 5:3:6 (Defendants’ Exhibits 17 and 18 admitted into evidence).
136   Also, Appellant does not seem to specifically challenge on appeal the particular
      finding in Finding of Fact No. 26 that, “Plaintiff did not have the Association’s
      permission to construct the above-described blockade.” C.R. 181-93 at p. 5 (Finding
      of Fact Nos. 26); see Appellant’s Br. at pp. 23-28 (Appellant’s challenge to Finding of
      Fact No. 26).


                                              45
tract to access the portion of West Darleen Drive to erect his blockade,

which was situated, in part, on the roadway’s adjoining properties, among

them the 1.4777-acre tract.

         Despite Appellant’s assertion to the contrary, 137 the evidence at trial

established that Appellant admitted to erecting the blockade on West

Darleen Drive; 138 part of the blockade existed for “three, four years;” 139

photographic evidence of the blockade; 140 and Appellant’s admission that

he moved his blockade off his property and onto the adjacent roadway.

Any argument that the Trial Court’s findings with respect to the existence of

the blockade, Appellant’s intentional trespass, or its resulting injury is

wholly without merit and should be overruled. 141

         Equally absurd is Appellant’s position that there is insufficient

evidence to the finding that the TLS Defendants and/or their successors

could have owned Lot 140 142 because the evidence establishes that Lot 52

and the Extended Disputed Property do not conflict with Lot 140. The

evidence also establishes that that TLS Properties and its predecessors in

137   Appellant’s Br. at p. 28 (citing to R.R. 2:113:9 – 1:114:22, R.R. 2:236:3 – 2:236:7,
      R.R. 3:34:35, Pltf.’s Exh. 4, and Def.s’ Exh. 6).
138   See R.R. 2:113:9 – 1:114:22 (Appellant testimony).
139   See R.R. 2:236:3 – 2:236:7 (Roberts testimony).
140   R.R. 3:34:35; see Def.s’ Exh. 81 (photograph).
141   Appellant’s Br. at 26-27 (challenging Findings of Fact Nos. 18, 20, 21, 23, 24, 26, 27,
      28 and Conclusion of Law No. 55).
142   Appellant’s Br. at 27 (challenging Findings of Fact No. 28).


                                              46
interest were, at all relevant times, the deed record owners of Lot 140. 143

Finally, evidence such as the 2004 Lease between TLS Properties and

TEHOA and the uncontroverted testimony of Smith establish that TLS

Properties and its predecessors in interest had granted TEHOA and its

members permission since at least 1994 to access Lot 140. 144 This finding is

further supported by Appellant’s failure to specifically challenge on appeal

the finding No. 8 that, “During the entire time when it owned Lot 140, and

through the present, . . . TLS Properties leased the property to the

Association . . . .” 145

         Finally, Appellant challenges the Trial Court’s conclusion that

Appellant should be permanently enjoined from trespassing onto property

that was determined to be owned by Defendants and in which Appellant

failed to demonstrate any ownership rights. 146 As the Trial Court correctly

found that (a) Appellant failed to establish ownership of Lot 139, Lot 140,


143   See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
      (Defendants’ Exhibits 11 and 12 admitted into evidence); see R.R. 2:212:2 – 2:214:2,
      and 2:215:6 – 2:217:9, and 2:221:21 – 2:222:9 (Smith testimony, wherein he
      explains, without objection, the ownership and leasing history for Lot 139, Lot 140
      and the 1.4777-acre tract).
144   See Def.s’ Exh. 13 (2004 Lease for Lots 139 and 140), and R.R. 5:2:21 – 5:2:23
      (Defendants’ Exhibit 13 admitted into evidence); see R.R. 2:218:1 – 2:218:12 (Smith
      testifies about TEHOA’s property leases with TLS Properties since 1994).
145   C.R. 181-93 at p. 3 (Finding of Fact No. 8); see Appellant’s Br. at pp. 23-28
      (Appellant’s specific challenge to Finding of Fact No. 8 does not address the issue).
146   Compare Appellant’s Br. at p. 28, with C.R. 181-93 at p. 9 (Conclusion of Law No.
      56).


                                             47
and/or the 1.4777-acre tract; and the evidence establishes that neither Lot

52 nor the Disputed Extended Property conflicts with Lot 139, Lot 140, or

the 1.4777-acre tract; 147 (b) Lots 139 and the 1.4777-acre tract are owned by

TEHOA 148 and Lot 140 is owned by TLS Properties; 149 (c) Appellant

admitted to erecting the blockade on West Darleen Drive, 150 which TEHOA

explained prevented the use and enjoyment of its property by its

members; 151 and (d) West Darleen Drive is a public right-of-way easement

that runs through Lots 139 and 140. 152

         While Appellant argues that no evidence ever identified continual use

of West Darleen Drive across Lot 140, 153 Appellant actually admitted to

knowing of West Darleen Drive’s use as a public road since as early as

1997. 154 Furthermore, the use of Lot 139, Lot 140 and the 1.4777-acre tract

by TEHOA and its members as a boat launch, preserved area and/or

parklands has been occurring since 1994. 155


147   Supra, at pp. 17-19.
148   See Def.s’ Exh. 17, 18 (2008 Deed and 2008 Quitclaim), and R.R. 5:2:24 – 5:2:25,
      5:3:5 – 5:3:6 (Defendants’ Exhibits 17 and 18 admitted into evidence).
149   See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
      (Defendants’ Exhibits 11 and 12 admitted into evidence).
150   See R.R. 2:113:9 – 1:114:22 (Appellant testimony).
151   See R.R. 2:239:12 – 2:239:22 (Roberts testimony).
152   Infra, at p. 52.
153   Appellant’s Br. at p. 26 (challenge of Finding of Fact No. 21).
154   R.R. 2:109:17-2:113:22, R.R. 2:111:4-2:111:7.
155   Supra, at pp. 26-27.


                                           48
          Despite his knowledge, as evidenced by the 2014 Land Survey,

photographs, and Crichton’s testimony, Appellant obstructed the portion of

West Darleen Drive that leads into Lot 140. 156 The 2014 Land Survey and

Crichton’s testimony established that Lot 139 and the 1.4777-acre tract are

adjoining properties with West Darleen Drive running through them and

into Lot 140. 157 And while Appellant admits that he “tried to block access to

. . . [his] property for years” with the blockade, 158 the 2014 Land Survey, the

photographs admitted into evidence, and Crichton’s testimony contrarily

establish that Appellant’s blockade obstructed the portion of West Darleen

Drive that leads into Lot 140, and that Appellant’s obstruction was situated,

in part, on the roadway’s adjoining properties, among them the 1.4777-acre




156   Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’ Exhibit 21
      admitted into evidence); see R.R. 2:163:14 – 2:164:13 (Crichton testimony); see
      Def.s’ Exh. 81-84 (photographs of West Darleen Drive with and without
      obstructions); see R.R. 5:3:15 – 5:3:19 (admission of Defendants’’ Exhibits 81-84 into
      evidence); see, e.g., Def.s’ Exh. 82, R.R. 2:232:1 – 2:232:14, R.R. 2:233:12 – 2:233:16
      (Roberts testifies without objection that Defendants’ Exhibit 82 is a photograph
      portraying West Darleen Drive). For this reason, there is sufficient evidence to
      support Finding of Fact Nos. 23 and 24.
157   See Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 (Defendants’ Exhibit
      21 admitted into evidence); see R.R. 2:164:7 – 2:164:13 (Crichton’s testimony about
      the location of West Darleen Drive Extension); see R.R. 2:163:14 – 2:164:13
      (Crichton testimony).
158   See R.R. 2:113:9 – 2:114:22 (Appellant testimony, with reference to “th[e] road that’s
      depicted in both Defendants’ Exhibit 21 and Defendants’ Exhibit 6,” namely, West
      Darleen Drive); see also Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16
      (Defendants’ Exhibit 6 admitted into evidence); see also Def.s’ Exh. 21 (2014 Land
      Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’ Exhibit 21 admitted into evidence).


                                              49
tract. 159 Thus, it is reasonable to infer that Appellant had to physically,

intentionally, and voluntarily entered onto Defendant’s lands in order to

erect his blockade. Appellant’s blockade restricted the TEHOA’s ability to

make full use and enjoyment of Lot 139 and the 1.4777-acre tract, 160 as

established by Roberts’ uncontroverted testimony. 161 It is undisputed that

Appellant did not have TEHOA’s permission to block access to West

Darleen Drive, 162 which Appellant does not specifically challenge on

appeal. 163

                3.     TEHOA Established its Superior Right to Utilize West
                       Darlene Drive
         In addition to the foregoing, TEHOA also satisfied its burden for a

declaration that West Darleen Drive is a public right-of-way over which it

159   Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’ Exhibit 21
      admitted into evidence); see R.R. 2:163:14 – 2:164:13 (Crichton testimony); see
      Def.s’ Exh. 81-84 (photographs of West Darleen Drive with and without
      obstructions); see R.R. 5:3:15 – 5:3:19 (admission of Defendants’’ Exhibits 81-84 into
      evidence); see, e.g., Def.s’ Exh. 82 and R.R. 2:232:1 – 2:232:14 and R.R. 2:233:12 –
      2:233:16 (Roberts testifies without objection that Defendants’ Exhibit 82 is a
      photograph portraying West Darleen Drive).
160   C.R. 181-93 at p. 5 (Finding of Fact No. 27) (emphasis added).
161   See R.R. 2:231:2 – 2:231:22, and R.R. 2:239:12 – 2:239:22 (Roberts testifies about
      the necessity for injunctive relief against Appellant, how TEHOA purchased Lot 139
      and the 1.4777-acre tract for its members, and how TEHOA and its members “have
      not been able to take advantage of . . . [Lot 139 and the adjoining 1.4777-acre tract
      since the time when the Association purchased those properties for its members]
      because it has been blocked off [by Plaintiff’s blockade].”).
162   See R.R. 3:239:5 – 3:239:22 (Roberts testimony explaining the reason why TEHOA
      is seeking injunctive relief against Appellant with respect to Appellant’s blockade).
163   C.R. 181-93 at p. 5 (Finding of Fact Nos. 26, which states that “Plaintiff did not have
      the Association’s permission to construct the above-described blockade.”); see
      Appellant’s Br. at pp. 23-28 (Appellant’s specific challenge to Finding of Fact No. 26
      does not address the issue).


                                              50
and its members have the right to travel fully and freely. 164                   And as

explained with respect to Finding of Fact No. 16, West Darleen Drive does

not conflict with, or go “over Lot 52.” 165 Additionally, Appellant admitted

that he knew West Darleen Drive was a “public road” since at least 1997

(more than twelve years before Appellant filed this lawsuit); 166 and that

West Darleen Drive appears on the 1962 Plat recorded way back in 1962, 167

and conceded he attempted to blockade West Darleen Drive. 168                       Trial

evidence also reflected that TEHOA intended to continue making

recreational use of the lands but for Appellant’s blockade of West Darleen

Drive; 169 and that TEHOA made written demand to Appellant for the

removal of his blockade, 170 before filing counterclaims in this lawsuit. 171




164   Compare Appellate Brief at p. 28 (challenge to conclusion of Law No. 52), with C.R.
      181-93 at pp. 8-9 (Conclusion of Law No. 52).
165   Supra, at pp. 17-19.
166   See R.R. 2:109:17 – 2:109:24 and 2:110:19 – 2:110:22 (Appellant admits in his
      testimony that West Darleen Drive Extension, as depicted in the 1962 Plat and 2014
      Land Survey, is “a public road”).
167   R.R. 2:110:19 – 2:110:22 (Appellant admits that West Darleen Drive Extension is
      depicted in the 1962 Plat); see Def.s’ Exh. 6 (1962 Plat, which shows West Darleen
      Drive extending through Lots 139 and 140), and R.R. 5:2:14 – 5:2:16 (Defendants’
      Exhibit 6 admitted into evidence); see C.R. 3-6 (Plaintiff’s Original Petition filed
      Nov. 1, 2010).
168   See, e.g., R.R. 2:113:9 – 2:114:22 (Appellant testimony).
169   R.R. 2:231:2 – 2:231:22 (Roberts testimony).
170   See R.R. 2:236:25 – 2:237:5 (Roberts testimony).
171   See, e.g., C.R. 10-36 at ¶¶ 6.01-6.05 (Association’s counterclaim for permanent
      injunctive relief).


                                             51
         Based on the foregoing evidence alone, TEHOA satisfied its burden of

establishing West Darleen Drive as a prescriptive right-of-way easement.

To establish a prescriptive easement, which is an easement created by “the

claimant’s adverse actions under a color of right,” TEHOA was only

required to show the use of Appellant’s purported land “in a manner that is

open, notorious, continuous, exclusive, and adverse for a period of ten years

or more.” 172 TEHOA did just that, and Appellant has failed to offer any

evidence or legal authorities to the contrary.

         In addition, the evidence supports a finding that West Darleen Drive

is a public right-of-way easement by express and/or implied dedication. As

previously explained by this Court, “‘Dedication’ is the act of appropriating

private land to the public for any general or public use.” 173                       “Once

dedicated, the owner of the land reserves no rights that are incompatible

with the full enjoyment of the public.” 174 To prove an easement by implied

dedication, TEHOA was only required to show that: (a) the acts of T.L.

Smith (as the owner of the lands giving rise to the 1962 Plat) induced the

belief that he intended to dedicate the road to public use; (b) T.L. Smith

owned the land in fee simple and therefore was competent to dedicate the


172   Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App. – Austin 1998, pet. denied).
173   Id. at 718.
174   Id.


                                             52
land; (c) the public relied on those acts and will be served by the dedication;

and (d) there was an offer and acceptance of the dedication. 175 The record

establishes just that. As explained throughout, T.L. Smith owned the lands

re-platted by the 1962 Plat, and had the right to re-plat those lands; 176 the

1962 Plat’s depiction of West Darleen Drive as “W. Darleen Extension” and

as running through Lots 139 and 140 suggest that T.L. Smith intended for a

public road; 177 Appellant testified that he had actual notice of West Darleen

Drive’s existence and use as a “public road” since at least 1997 (more than

ten years before Appellant filed the underlying lawsuit in late 2010); 178

Appellant further testified that West Darleen Drive’s pavement had been

extended by “[t]he County;” 179 as explained with respect to Finding of Fact

No. 40, Appellant and his predecessors in title had constructive notice of

the 1962 Plat since 1962; 180 Roberts testified that TEHOA and its members

used West Darleen Drive as the means of accessing Lots 139 and the 1.4777-

175   Id.
176   See R.R. 2:212:2 – 2:214:2, 2:215:6 – 2:217:9, 2:221:21 – 2:222:9 (Smith testimony,
      wherein he explains, without objection, the ownership and leasing history for Lot
      139, Lot 140 and the 1.4777-acre tract); see also Def.s’ Exh. 6 (1962 Plat, which
      identifies T.L. Smith, Jr. as an owner of the re-platted property), and R.R. 5:2:14 –
      5:2:16 (Defendants’ Exhibit 6 admitted into evidence).
177   See Def.s’ Exh. 6 (1962 Plat), and R.R. 5:2:14 – 5:2:16 (Defendants’ Exhibit 6
      admitted into evidence).
178   See R.R. 2:109:17 – 2:109:24, 2:110:19 – 2:110:22 (Appellant admits that West
      Darleen Drive Extension, as depicted in the 1962 Plat and 2014 Land Survey, is “a
      public road”).
179   R.R. 2:110:7 – 2:110:12 (Appellant testimony).
180   Supra, at p 24, pp. 40-43.


                                             53
acre tract; 181 and there was an offer and acceptance of the dedication

through the conveyances of Lots 139, 140 and the 1.4777-acre track to

TEHOA and/or TLS Properties. 182 Thus, the evidence supports a finding

that West Darleen Drive is a public right-of-way easement by express

and/or implied dedication. For this additional reason, the Trial Court’s

award of a permanent injunction to prevent Appellant from any further

obstruction or interference with TEHOA’s ingress and egress over West

Darleen Drive was proper and should not be disturbed by this Court.

         E.     This Court should disregard Appellant’s arguments
                which rely on Appellant mischaracterization of the
                trial record.
         The following addresses several instances in which the Appellate Brief

mischaracterizes the trial record.            The Court should disregard each of

Appellant’s arguments which rely on those mischaracterizations.

         On page 9 of the Appellate Brief, Appellant states:                   “Crichton

references a ‘pin 13’ in finding the supposed northwest corner of Lot 52, but

at no point on any plat or prior survey is pin 13 identified. [R.R. 2:152:22 –

R.R. 2:153:5.]” 183 This assertion is incorrect because “pin 13” appears in the


181   See R.R. 2:231:2 – 2:231:22, 2:239:12 – 2:239:22 (Roberts testimony).
182   See Def.s’ Exh. 11, 12 (1998 Special Warranty Deeds), and R.R. 5:2:16 – 5:2:20
      (Defendants’ Exhibits 11 and 12 admitted into evidence); see Def.s’ Exh. 17, 18 (2008
      Deed and 2008 Quitclaim), and R.R. 5:2:24 – 5:2:25, 5:3:5 – 5:3:6 (Defendants’
      Exhibits 17 and 18 admitted into evidence).
183   Appellant’s Br. at p. 9.


                                             54
2014 Land Survey, which was prepared by Crichton and admitted into

evidence without objection. 184 The 2014 Land Survey references “pin 13” by

the number “13,” which appears right-adjacent to a dot drawn on the

exhibit’s illustration of the top-left corner of Lot 52 (identified in the 2014

Land Survey by the notation “52”). 185 To help illustrate this point, an

enlargement of this section of the 2014 Land Survey is attached hereto as

Tab C.        And since Appellant did not object to the visual clarity or

appearance of “pin 13” on the 2014 Land Survey, he has waived his right to

do so on appeal. 186 Thus, this Court should disregard each of Appellant’s

arguments which rely on Appellant’s mischaracterization of “pin 13.”

         F.     This Court should affirm the award of attorney fees to
                TEHOA as a result of Appellant’s unsuccessful appeal.
         Among      other things,       the    Final    Judgement awards           TEHOA

$20,000.00 for attorney fees incurred in connection with Appellant’s

unsuccessful appeal of the lawsuit to this Court, together with post-




184   See Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’
      Exhibit 21 admitted into evidence); see also R.R. 2:151:21 – 2:154:9 (Crichton
      identifies “pin 13” on Defendant’s Exhibit 21, and then testifies that pin 13
      establishes the intended location of the northwest corner of Lot 52).
185   See Def.s’ Exh. 21 (2014 Land Survey), and R.R. 5:3:8 – 5:3:9 21 (Defendants’
      Exhibit 21 admitted into evidence).
186   See, e.g., TEX. R. APP. P. 33.1(a) (generally, to preserve error for appeal, the record
      must show that the error was brought to the trial court’s attention by a timely
      request, objection or motion). See also R.R. 2:153:21 – 2:154:3 (Crichton testifies
      about the location of “pin 13” without objection).


                                              55
judgment interest thereon. 187 This Court should affirm this award, as well

as all other attorney fee and interest awards to TEHOA rendered in the

Final Judgment, because Appellant has failed to challenge them on appeal,

and, as argued herein, Appellant should not succeed in his appeal of the

lawsuit to this Court.

                           CONCLUSION AND PRAYER
         For the reasons set forth in the Findings of Fact and Conclusions of

Law, Defendants were entitled to dismissal of all claims asserted by

Appellant and for a judgement in their favor. A review of the Trial Court

evidence, including Appellant’s admissions, reflects that the Trial Court’s

judgment was not in error. Appellant offered no competent or admissible

evidence to support its claims, nor did Appellant contradict the evidence

supplied by Defendants. Accordingly, Defendants request that this Court

overrule Appellant’s issues and challenges, affirm the Findings of Fact and

Conclusions of Law supporting the Trial Court’s judgment, and render

judgment against Appellant. Defendants further request any and all other

relief to which it may be entitled.




187   C.R. 91-109 at pp. 3-4 (Final Judgment’s attorney fee and interest awards).


                                             56
 Respectfully submitted,
JACKSON WALKER L.L.P.

 By: /s/ Christopher R. Mugica
     Christopher R. Mugica
     State Bar No. 24027554
     cmugica@jw.com
     Emilio B. Nicolas
     State Bar No. 24058022
     enicolas@jw.com
     Jackson Walker L.L.P.
     100 Congress Avenue, Suite 1100
     Austin, Texas 78701
     (512) 236-2000
     (512) 236-2002 – Fax

 ATTORNEYS FOR APPELLEES
 TRAILS END HOMEOWNERS
 ASSOCIATION AND VAN
 KEENE




57
            RULE 9.4 CERTIFICATE OF COMPLIANCE
      This document complies with the typeface requirements of TEX. R.
APP. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of TEX. R. APP. P. 9.4(i), if
applicable, because it contains 14,335 words, excluding any parts exempted
by TEX. R. APP. P. 9.4(i)(1).


                                  /s/ Christopher R. Mugica
                                  Christopher R. Mugica




                                    58
                       CERTIFICATE OF SERVICE
       This is to certify that on this 22nd day of May, 2015, a true and correct
copy of the above and foregoing document was electronically mailed to the
parties registered or otherwise entitled to receive electronic notices in this
case pursuant to the Electronic Filing Procedures in this Court and/or via
certified mail, return receipt requested upon:

      Stephen Casey               Derek Quick
      Casey Law Office, P.C.      Strasburger & Price, LLP
      595 Round Rock West Drive   720 Brazos Street, Suite 700
      Suite 102                   Austin, Texas 78701
      Round Rock, Texas 78681     derek.quick@strasburger.com
      stephen@caseylawoffice.us   Counsel for Appellees TLS
      Counsel for Appellant David Properties, Ltd. and TLS
      Young                       Operating Company, LLC

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


                                    /s/ Christopher R. Mugica
                                    Christopher R. Mugica




                                      59
                 NO. 03-14-00535-CV
___________________________________________________

                IN THE COURT OF APPEALS
            FOR THE THIRD DISTRICT OF TEXAS
                    AT AUSTIN, TEXAS
___________________________________________________

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


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

                                 APPENDIX



TAB A         2005 Steger & Bizzell Survey

TAB B         2014 Land Survey

TAB C         Enlargement of “pin 13” of the 2014 Land Survey




12389315v.8

                                      60
TAB A
                                                                                                                                                                   '~1
                                                                                                                                                                                                                                                          LEGEND
                                                                                                                                                   "- o.\Oc'f-
                                                                                                                                                      '-' .o"
                                                                                                                                                   'J' .... ~,,,
                                                                                                                                                                                                                                                           e     -   IRON PIN FOUND
                                                                                                                             .. o" '0-o·sv-o"'                                                                                                             0     - IRON PIN SET
                                                                                                                         6,--~'"'' «.P0 ".:1'0
                                                                                                            «--e"'0'0\~o~"'                  \'01


                                                                                                                                                                                                                                                                                                     SCALE: 1"= 100'




   LCRA Records
Lake Travis Elevation
9/13/1962      655.2




                                                                                                                                                                                           52
                                                                                                                                                                         T. David Young
                                                                                                                                                                           12871/411                                             con tour
                                                                                                    l
                                                                                                -ip.OrO~·
                                                                                            l0cot; ;~ote
                                                                                                                ~
                                                                                                                         '-..
                                                                                                     0
                                                                                                             C't.r/1,-          ~----
               Note: 655.2 Contour and location of gully                                                                               \_ f<tge of Water
               under water ore 5hown by oppro~~:irnotion only.                                                                              '2/2/os
                                                                                                                                        EleVation 66• . .,

                                                                                                                    atJ;'::%,~~ot,                                            Note: De.frlds ol record os Document No. 1999001444
                                                                                                                      'S.< c                                                  and 2003287163 Offtelol Public Records of Travis
                                                                                                                            of) four                                          County, Texas, coil for west line to be the center
                                                                                                                                                                              of Big Sondy Creek.
                                                                                                                                                                              Since on extension of these lots to 8i9 Sandy Creek                        Survey For
                                                                                                                                                                              would create o conflict with plots and deeds of record,
                                                                                                                                                                              this appears to be on error. This survey shows the            Trails End Homeowners Association
               STATE Of TEXAS                                                                                                                                                 west Jines of these tracts to be the Gully as shown
                                                   KNOW AU. t.IEN BY fifES£ PRESfNTS:                                                                                         on the plot of the Resubdivision No.5, Block #57 Trails                 Lots 139 & 140
               COUNTY Of WIU.W..SON                                                                                                                                           End Subdivision.
                                                                                                                                                                                                                                               Resubdivision No.5, Block #57
               r, Brion F. Petenoon, Register.d Proreuionol l.ond Sllol'\leyw, do hereby certify that
               ~ plat shown heroon occurotely r.preaenta the property a11 deecnbed by an
                                                                                                                                                                                                                                                   Trails End Subdivision
               :rJ::~~croo5JU:D'::o~ ~j=~d.:::v:.:nild~;:~ o'::'8:er.                                                                                                                                                                              Travis County, Texas
               ore no apparent dillcroponci.., conflicbr, .twwtog.ee in orec~, bol.lndaty line
               contrtcl.ll, encroochmenta, over1opplng of impnwemonte, lri$1bltl utility linn or roode
               In place, fiiiCop\ 01 shown hereon.




                                                                                                                                                                                                                                                                                     Engineering, Inc.
               ~;>....,;~...,          7::;,.. ~.""'.....,~ ""'   l.OAl'   Brian F. Pet.eraon                                                                                                                                                                                                                         Surveyon
                                                                                                                                                                                                                                                                                                       r~-            r~
                                                                                                                                                                                                                                                                                                       (512)1l0-t411(512)8JG-t411

                                                                                                                                                                                                                                             (L;\ li:N) Drow~\ 20762-Tral'e fnd-13i-HO\ bose.dwg.)      JOB No. 20782
                                                                                                                                                                                                                                                           R£II1EWED BY': BFP                    APPROVE.OB'f: llfP


                                                                                                                                                                                                                                                                                                       TEHOA 00 191
TAB B
                                                                                                                                                                                                                      GRAPHIC SCALE


                                                                                                                                                                                                                           (Ill PUf )
                                                                                                                                                                                                                        I ~Deb.~ .0     tt.
                                                                                                                                                                                                                                                                                                                 TEHOA 00544




                                                                  =~:t.:(t:~~J~i:~[OM   SJAT[ pt.Afj[   COOftDIMAf(5



                                  DYCJI[[It
                                          /   ~z._
                             ~LH'(": ~CEHTU I
                                       ~,f'   -----------                                RESUBDIVISION NO. 5, BLOCK 57, mAILS END SUBDIVISION
                                                                                                            {VOLUME IQ..f'!C[ J6) LOT~ / _ . / _ /
                                    ,'fj•'                  ---!!1:~z•.:c
                                   ,,                                   -----                                                                                                              /        ~:>"
                                                                                                                                                                                                   .... .... -<- __
                                                                                                                                                                                              /
                            ·'
                            .,,                                                                                                                                                       e'"'
                          ;f/ 1                                                                                                                                         orl       / -'
                                                                                                                                                                st45\    .1$-v"          LOT 1)9
...;":'::;."""
           DTCJIU k //1          TR'Zi%"-'OUr
                                   .us£.~DiKJI1UJor
                                       """"'" ~o~r  or                                                                                                 f.y:r _,- ",..h                                            /
                   }-6-__            /    ~   TRAO'WN(Rs                                                                               -~,                                         HOl.IE~~i~iN~SSOC.
                                                                                                                              ~r.J£                . ,. . .                       (DOC. NO. 2008167<492)/
                            ---- L               cr.
                                                                                                                 .--~     -w     lJ~ ,. . . . . ..~                                   0.9990 ACRES           ,'

                                 - -;;,:~~~~~~~:;;;;-----                                                  -:;~ti.i"" ttt$~ _,. .,. ,. . . . . --          \,                                            /
                                                                                                          _c'f      P" .,. . . ""            LOT 140            \                    .... •6- -   ---4 7.
        /
                                                                                            i ---,v.: -''                      \             /,
                                                                                            :,,   . . . ,...~,1-z,-;;...-----     , :s'. . .
                                                                                /,          • -"" cx""i:r...·:.:r~,:.::o-ii-~~,..,.~-----
                                                                                                                 LOT 140                               /




                                                                                                                                                                                                                                          52




                                                                        SURVEY SHOWING RELATIONSHIP OF THE WESTERN
                                                                        EXTENSION OF THE NORTH LINE OF LOT 52 OF TRAILS END
                                                                        LAKE TRAVIS SUBDIVISION RECORDED IN VOL. 4 PG. 331 OF
                                                                        THE TRAVIS COUNTY PLAT RECORDS WITH THE CENTER OF
                                                                        SANDY CREEK .                                                                                                                                                          LEGEND
                                                                                                                                                                                                                                                   •rr rROH Pf<f rOUNO
                                                                                                                                                                                                                                                   conOH SPINOLE ro.JNO
                                                                                                                                                                                                                                               ~   HNL FCUN O




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                                                                                                                                                                                                                                                                          DATE:Aprll 2:), 2014

                                                                                                                                                                                                                                                                                                 DWG NO. U_t02
TAB C
