No. 05-11-00732-CV IN THE COURT OF APPEALS FIFTH COURT OF APPEALS DISTRICT DALLAS, TEXAS ACCEPTED 225EFJ016707563 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 2 A8:56 Lisa Matz CLERK 5th Court of Appeals FILED: 02/07/2012 14:00 Lisa Matz, Clerk WILLIAM C. BLAYLOCK and ELAINE B. BLAYLOCK, Appellants v. THOMAS P. HOLLAND and KIMBERLY HOLLAND, Appellees On Appeal from the 193 rd Judicial District Court, Dallas County, Texas No. 09-08910 RESPONSE TO APPELLANTS BRIEF James J. Doyle, III State Bar No. 24036501 DOYLE LAW FIRM 4054 McKinney Avenue, Suite 310 Dallas, Texas 75204 (214) 522-6200 Telephone (214) 559-3124 Fax ATTORNEY FOR APPELLEES
TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 STATEMENT OF THE ISSUES... 1 I. STATEMENT OF FACTS... 2 II. SUMMARY OF THE ARGUMENT... 3 III. ARGUMENT & AUTHORITIES... 3 A. Title by Adverse Possession is NOT Barred as a Matter of Law Because of the Mere Existence of a Document Allegedly Dedicating the Property for Private Utility Company Use.... 3 1. No Standing. The Blaylocks have no standing to utilize CPRC 16.030(b) as an affirmative defense to adverse possession.... 3 2. No Dedication. Even if standing were to exist, there has been no dedication of the easement to the public, and, thus, CPRC 16.030(b) has not been triggered and the Blaylocks affirmative defense fails.... 6 3. No dedication and no intent. The intent of the wording in the 1967 plat as concluded from reading and interpreting it in its entirety is to dedicate the easement at issue for the use of private utility companies only and not the public in general.... 7 4. The dedication was not irrevocable.... 7 5. No evidence of express or implicit acceptance. Public easements must be accepted, and the one at issue was not.... 8 6. If a public easement ever existed, it has long since been abandoned.... 9 B. The Hollands Proved Adverse and Hostile Possession.... 10 ii
1. Adverse possession is typically a question of fact.... 10 2. Just because the original fence was built by the previous owner of the Blaylocks home does not negate the Blaylocks notice of the Hollands adverse possession.... 12 3. The Hollands acted on their mistaken belief that they owned the property, thus adverse possession occurred.... 14 4. The Hollands used and enjoyed the property at issue, and did such under a claim of ownership... 15 IV. CONCLUSION... 15 V. PRAYER... 16 CERTIFICATE OF SERVICE... 17 iii
TABLE OF AUTHORITIES Cases Page Adams v. Rowles, 228 S.W.2d 849 (Tex. 1950)... 10 Bowen v. Ingram, 896 S.W.2d 331 (Tex. App.--Amarillo 1994, no writ)... 4, 6, 8 Boyle v. Burk, 749 S.W.2d 264 (Tex. App.-Fort Worth 1988, writ denied)... 4 Brown v. De la Cruz, 156 S.W.3d 560 (Tex. 2004)... 4 Calfee v. Duke, 544 S.W.2d 640 (Tex. 1976)... 11 Copeland v. City of Dallas, 454 S.W.2d 279 (Tex. Civ. App. Dallas 1970, writ ref d n.r.e.)... 7 Ellis v. Jansing, 620 S.W.2d 569 (Tex. 1981)... 5 Exxon Corp. v. Emerald Oil & Gas Co., L.C., 2009 Tex. LEXIS 114 (Tex. 2009)... 4 Houston Lighting & Power Co. v. State, 925 S.W.2d 312 (Tex. App.--Houston [14th Dist.] 1996)... 7 Masonic Bldg. Ass n of Houston, Inc. v. McWhorter, 177 S.W.3d 465 (Tex. App. Houston [14th Dist.] 2005, no pet.)... 12 McAllister v. Samuel, 857 S.W.2d 768 (Tex. App. Houston [14 th Dist.] 1993, no writ)... 11, 13 Mendoza v. Ramirez, 336 S.W.3d 321 (Tex. App. El Paso 2010)... 13 Ramirez v. Wood, 577 S.W.2d 278 (Tex. Civ. App.- Corpus Christi 1978, no writ)... 11 iv
Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990)... 10, 13 Scott v. Bd. of Adjustment, 405 S.W.2d 55 (Tex. 1966)... 4 Tex. Dep t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857 (Tex. 2001)... 4 Tran v. Macha, 213 S.W.3d 913 (Tex. 2006)... 10 Viscardi v. Pajestka, 576 S.W.2d 16 (Tex. 1978)... 6, 8 Williams v. Lara, 52 S.W.3d 171 (Tex. 2001)... 4 STATE STATUTES Texas Civil Practice and Remedies Code 1.001(a)... 4 Texas Civil Practice and Remedies Code 16.021... 10 Texas Civil Practice and Remedies Code 16.030(b)... 4, 5 Texas Revised Civil Statutes art. 5517 (1958)... 4, 5 Texas Local Government Code Section 212.011... 8 v
STATEMENT OF THE CASE Nature of the Case. This case arises out of a boundary dispute between the Blaylocks and the Hollands, neighbors who share a boundary at the back of their respective properties. In 1995 the Hollands moved into their home and began using the three-foot strip at the back of their yard which the Blaylocks claim is their property. In 2009, the Blaylocks sued to quiet title, approximately 14 years after the Hollands began using the property at issue, and the Hollands counterclaimed for title by adverse possession. STATEMENT OF THE ISSUES 1. Was the Hollands claim of title by adverse possession barred by Texas Civil Practice and Remedies Code section 16.030(b) where the property the Hollands claim title to was within an easement based upon a dedication that was never accepted, and if accepted, was only a dedication for public utility companies and not the public-at-large, thus prohibiting the Blaylocks reliance on CPRC 16.030(b) based on a lack of standing? 2. Assuming the Hollands could claim title to the Blaylocks property by adverse possession, did the Hollands sufficiently (legally or factually) prove title by adverse possession where: a. the Hollands used and enjoyed the property for a period of 14 years before the Blaylocks filed suit to quiet title; b. prior to the construction of their own fence on the Blaylocks property, the Blaylocks knew the Hollands were exclusively using their property but did not file suit for 14 years; and c. the Hollands have always claimed, that is since 1995, to have owned the property at issue, with such claim being obviously hostile to the claim of the Blayocks? 1
I. STATEMENT OF FACTS The Hollands moved into their home in 1995 and always believed the property enclosed by their backyard fence was their property (1 RR 108, 119). When the Hollands moved into their home there was one, and only one, fence that bordered the back of their property with the back of the Blaylocks (1 RR 108-109). An open strip of land between the original fence and the Hollands backyard did not exist. Pictures presented at trial clearly show the one fence as it existed in 1995 (1 RR defendants exhibits 1-4). A second fence was built in 1999 because the original fence was in disrepair. The second fence was built in essentially the exact same location as the original fence. The Blaylock s knew the Hollands were using the strip and said nothing about it until 1999 when the Hollands built the new fence (1 RR 71). The Blaylocks waited until 2009 to file suit. Between 1995 and 2009 the Hollands continuously used the disputed strip and the Blaylocks were always openly aware of this fact (1 RR 112-113). A 1967 plat makes a general statement that all roads, alleys and easements are dedicated to the public (2 RR PX 2; CR 50, App. Tab 4). However, more specific language found in the plat references the easement as a utility easement: hereby reserve the easement strips shown on this plat for the mutual use and accommodation of all public utilities design to us or using same (2 RR PX 2; CR 50, App. Tab 4). Further, the three-foot easement at issue is clearly designated on 2
the plat map as a 3 Pwr. & Telep. Easement, and not as an easement dedicated to the public generally (2 RR PX 2; CR 50, App. Tab 4). The dedication was not to the public at-large but for the use of private utility companies. There was never any official acceptance of the dedication. No competent evidence was presented that the dedication, even if made to the public, was ever accepted by the public. II. SUMMARY OF THE ARGUMENT The easement s dedication was never accepted by the public and is thus void as a public utility easement. If, arguendo, the dedication exists as a public utility easement, the Blaylocks do not have standing to utilize the protections afforded by CPRC 16.030(b). The Hollands used and enjoyed the three-foot strip at issue between 1995 and 1999. The Blaylocks knew the Hollands were using and enjoying the three foot strip but failed to bring suit within ten years. The Hollands presented facts in support of their adverse possession claim and the Court properly found that adverse possession had occurred according to Texas law. III. ARGUMENT & AUTHORITIES A. Title by Adverse Possession is NOT Barred as a Matter of Law Because of the Mere Existence of a Document Allegedly Dedicating the Property for Private Utility Company Use. 1. No Standing. The Blaylocks have no standing to utilize CPRC 16.030(b) as an affirmative defense to adverse possession. 3
The Constitution requires standing to maintain suit. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001); see also Exxon Corp. v. Emerald Oil & Gas Co., L.C., 2009 Tex. LEXIS 114, 12-13 (Tex. 2009). A party suing under a statute must establish standing, or the right to make a claim, under that statute. See id.; Scott v. Bd. of Adjustment, 405 S.W.2d 55, 56 (Tex. 1966). Statutes themselves provide the framework for the standing analysis. See Williams, 52 S.W.3d at 178-79; Scott, 405 S.W.2d at 56. The Texas Supreme Court does not imply a right of enforcement just because a party has suffered harm from the violation of a statute; but looks to the intent of the Legislature as expressed in the language of the statute. See Brown v. De la Cruz, 156 S.W.3d 560, 567 (Tex. 2004). The court s duty is to analyze the wording of the statute to determine if the Legislature intended to confer standing upon a party as opposed to the public or a governmental entity representing the public s interest. See Tex. Dep t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001). Section 16.030(b) of the Texas Civil Practice & Remedies Code is a nonsubstantive recodification of former article 5517 of the Texas Revised Civil Statutes. Bowen v. Ingram, 896 S.W.2d 331, 335 (Tex. App.--Amarillo 1994, no writ); Boyle v. Burk, 749 S.W.2d 264, 265 n.1 (Tex. App.-Fort Worth 1988, writ denied), citing CPRC 1.001(a) (Vernon 2002). Article 5517 reads:... nor shall any person ever acquire, by occupancy or adverse possession, any right or title to any part or portion of any road, street, 4
alley, sidewalk, or grounds which belong to any town, city, or county, or which have been donated or dedicated for public use to any such town, city, or county by the owner thereof, or which have been laid out or dedicated in any manner to public use in any town, city, or county in this State. TEX. REV. CIV. STAT. art. 5517 (1958). The Supreme Court, in construing this provision, held that it was the intention of the Legislature in enacting Article 5517 to protect the rights of those persons to whom the property was dedicated from any person claiming by adverse possession. A dedication for use by the general public... protects the right of use by the public generally, not just the city, county or other public body. Ellis v. Jansing, 620 S.W.2d 569, 570 (Tex. 1981). Section 16.030(b) is purposed to protect the public to whom lands are specifically dedicated and is not intended or purposed to protect private landowners who own land upon which an easement exists that is solely dedicated to the public. Further, upon analysis, section 16.030(b) clearly does not provide for a private right of action to individual landowners but is purposed as a protection to the public and only the public-at-large. As such, Appellants have no standing on which to rely or make a claim or defense pursuant to Section 16.030(b). 2. No Dedication. Even if standing were to exist, there has been no dedication of the easement to the public, and, thus, CPRC 16.030(b) has not been triggered and the Blaylocks affirmative defense fails. 5
The Texas Supreme Court has stated that the question of the validity of a public dedication is generally one of fact. Viscardi v. Pajestka, 576 S.W.2d 16, 17-19 (Tex. 1978); Bowen v. Ingram, 896 S.W.2d 331, 334 (Tex. App.--Amarillo 1994, no writ). The Court also noted that the definition of the word dedicate, when used in an instrument such as the one in question here, should be to appropriate and set apart one s private property to some public use; as to make a private way public by acts evincing an intention to do so. Id. The Texas Supreme Court has further held that in certain circumstances, an express acceptance of the dedication is not required but that an implied acceptance by the public is sufficient. Id. Further, the Texas Supreme Court has recognized that the owner s intent to dedicate, where not expressly delineated, may be implied from the owner s conduct. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978). The intent of the grantor is a question of fact. Id. 3. No dedication and no intent. The intent of the wording in the 1967 plat as concluded from reading and interpreting it in its entirety is to dedicate the easement at issue for the use of private utility companies only and not the public in general. The 1967 plat makes a general statement that all roads, alleys and easements are dedicated to the public (2 RR PX 2; CR 50, App. Tab 4). However, this general statement is trumped by the more specific language regarding the plat s dedication in reference to public utility easements, which states that the plat does 6
hereby reserve the easement strips shown on this plat for the mutual use and accommodation of all public utilities design to us or using same (2 RR PX 2; CR 50, App. Tab 4). Further, the three foot easement at issue is clearly designated on the plat map as a 3 Pwr. & Telep. Easement, and not as an easement dedicated to the public generally (2 RR PX 2; CR 50, App. Tab 4). A public utility easement, which is an easement for private utility companies, is not a dedication for public use. See Houston Lighting & Power Co. v. State, 925 S.W.2d 312, 314 (Tex. App.--Houston 14th Dist. 1996) ( The State cites no Texas authority for the proposition that public utility easements are public places ). Thus, the dedication fails to clearly make a dedication to the public and the intent of the owner was clearly only to provide a public utility easement and not create an easement to be used by the public-at-large. 4. The dedication was not irrevocable. Appellants contend that the dedication was irrevocable citing Copeland v. City of Dallas, 454 S.W.2d 279 (Tex. Civ. App. Dallas 1970, writ ref d n.r.e.). In Copeland there was no question of intent to dedicate because, in part, the grantors drafted, executed, and filed a specific dedicatory affidavit. In the present case there was no dedication. However, even if there had been a clear and unequivocal dedication, the Blaylocks presented no evidence at trial to support their position and, in fact, have never raised the defense of irrevocability until this 7
appeal. The Blaylocks cite Copleand for the following: It is well settled in Texas that a dedication once made, coupled with sales of lots, said sales having been made with reference to the map or plat constituting the dedication, becomes binding and irrevocable. Id. at 284. For a dedication to be irrevocable, the Blaylocks were required to prove the following: (1) the dedication once made, was coupled with sales of lots; and (2) said sales were made with reference to the map or plat constituting the dedication. Id. However, the Blaylocks presented no evidence for either requisite element. Without such evidence, the dedication is not irrevocable. 5. No evidence of express or implicit acceptance. Public easements must be accepted, and the one at issue was not. A dedication must be either expressly or implicitly accepted by the public. Viscardi v. Pajestka, 576 S.W.2d 16, 17-19 (Tex. 1978); Bowen v. Ingram, 896 S.W.2d 331, 334 (Tex. App.--Amarillo 1994, no writ). The plat at issue was expressly approved but never expressly accepted. Section 212.011 of the Texas Local Government Code states: EFFECT OF APPROVAL ON DEDICATION. (a) The approval of a plat is not considered an acceptance of any proposed dedication and does not impose on the municipality any duty regarding the maintenance or improvement of any dedicated parts until the appropriate municipal authorities make an actual appropriation of the dedicated parts by entry, use, or improvement. TEX. LOC. GOV'T CODE 212.011. 8
There is no competent evidence that the easement was implicitly accepted and there is no competent evidence that the easement at issue was ever used by the public for any public purpose. Evidence that children used the public utility easement when jumping between yards and the like is not evidence of an acceptance of such easement by the public (1 RR 14-15, 91, 94-95, 97). A child s actions do not constitute public acceptance. Further, there was no competent evidence presented at trial that any utility companies ever used the easement. The trial testimony was that the easement was only three feet wide, but somehow utility trucks were driving up and down the easement in order to use it as some point in the distant past (1 RR 16, 28-29, 96). A public utility truck cannot squeeze into a three foot wide easement and the allegation of such is preposterous. Moreover, no evidence was presented at trial by any utility company ever using the public utility easement. 6. If a public easement ever existed, it has long since been abandoned. Appellants admit that they were made aware of the abandonment defense during summary judgment practice and even substantively responded to this defense (CR 196). Thus, Appellants were made aware of the defense through filed pleadings and had proper notice that such defense would be presented at trial. Abandonment of an easement occurs when the use for which property is dedicated becomes impossible, or so highly improbable as to be practically 9
impossible, or where the object of the use for which the property is dedicated wholly fails. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, 852 (Tex. 1950). The easement was inaccessible because the fence between the Blaylocks and Hollands yards had been in place, at the least, since early 1995 (1 RR 108). This has been the situation since the construction of the residential properties. If there was ever a time when the easement was used by the public or the public utilities companies, which there was not, it has long since been abandoned. B. The Hollands Proved Adverse and Hostile Possession. 1. Adverse possession is typically a question of fact. The question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990). To establish adverse possession, a claimant must enter the land with a claim of right that is hostile and inconsistent with the claim of another person. TEX. CIV. PRAC. & REM. CODE ANN. 16.021(1). Hostile use does not require an intention to dispossess the rightful owner, or even knowledge that there is one. Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006). However, there must be an intention to claim the property as one s own to the exclusion of all others. Id. Belief that one is the rightful owner and one has no competition for the ownership of the land at 10
issue is sufficient intention of a claim of right. Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976). A visible appropriation may be taken as evidence of a claim of right when the claim of right is not otherwise expressed. Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex. Civ. App.- Corpus Christi 1978, no writ). Mr. Blaylock testified at trial that he looked over the fence between the yards numerous times, thus, Mr. Blaylock viewed the visible appropriation of his property (1 RR 71). Mr. Blaylock viewed his property that was being occupied, used, enjoyed and kept up by the Hollands. Mr. Blaylock knew the Hollands were using his property without his permission. There has always been a fence between the parties yards since, at the least, the Hollands moved into their home in 1995 (1 RR 108-109). The Hollands believed the land on their side of the fence was theirs (1 RR 119). The Hollands used the land on their side of the fence day in and day out as a typical family would use their backyard, especially a family with children and dogs (1 RR 112-113, defendants exhibits 1-4). The Hollands have proven adverse and hostile possession. McAllister is cited by the Blaylocks for the proposition that a nine-inch encroachment may not be enough, in and of itself, to put another party on notice of adverse possession. McAllister v. Samuel, 857 S.W.2d 768, 777 (Tex. App. 11
Houston [14 th Dist.] 1993, no writ). However, the encroachment at issue in this case is two to three feet, and thus McAllister is inapplicable (1 RR PX 4, 5). 2. Just because the original fence was built by the previous owner of the Blaylocks home does not negate the Blaylocks notice of the Hollands adverse possession. For the first time on appeal, the Blaylocks allege that because the fence between the parties was built by the previous owners of the Blaylocks home, the Hollands cannot adversely possess the property on their side of the fence because the Blaylocks did not know about the Hollands use of the Hollands backyard. This even though Mr. Blaylock testified that he looked over the fence into the Hollands backyard on numerous occasions (1 RR 71). Appellants erroneously cite McWhorter for the proposition that The Hollands cannot rely on the Blaylocks fence to claim adverse possession, (Appellants Brief at 28). Masonic Bldg. Ass n of Houston, Inc. v. McWhorter, 177 S.W.3d 465, 472 (Tex. App. Houston [14 th Dist] 2005, no pet.). McWhorter does not support the Blaylocks position. McWhorter states that merely fencing property does not negate a fence owners right to ownership of land outside the fence. McWhorter allows for adverse possession of land outside one s fence if it is adverse and hostile, as in the case at hand. The Blaylocks cite McAllister again, as well as Rhodes, for the proposition that the Hollands use of the Blaylocks property was not adverse because it 12
occurred on the other side of a fence that happened to have been built by the previous owner of the Blaylocks property. Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990); McAllister v. Samuel, 857 S.W.2d 768, 777 (Tex. App. Houston [14 th Dist.] 1993, no writ). The cases cited by Blaylocks discuss two types of fences, casual and designedly enclosed fences. Casual fences have been described as fences that are incidental. Mendoza v. Ramirez, 336 S.W.3d 321, 328 (Tex. App. El Paso 2010) ( Use of land for grazing cattle, along with other related uses, is insufficient to establish title by adverse possession where the disputed property was incidentally enclosed by casual fences.). Further, it should be noted that the fence in Rhodes was not a fence enclosing property upon which the claimant lived or resided, but was merely a casual fence upon which he sporadically used during the years. Rhodes v. Cahill, 802 S.W.2d 643, 645-646 (Tex. 1990). The casual versus designedly case law seems to have developed in relation to farm and ranch land, and less developed residences. The case law is not applicable to the present situation and should not be applied. However, even if applied, the fence at issue should not be designated a casual fence. The fence at issue in this case was never incidental in nature. Fences between residences are not casual but meant to protect the privacy and personal belongings of the owners. The purpose of the fence at issue was to enclose the Blaylocks property and by nature, quid pro quo, enclose or assist in 13
enclosing the Hollands property (and this is the testimony that Mrs. Holland proferred at trial) (1 RR 119-120). Residential fences are designed to serve as enclosures for both properties and in fact, did in the present situation. This is not a situation where acres upon acres exist in a country setting and the owner of the property does not have notice that his or her land is being used by another. The Blaylocks always knew their property was being used by the Hollands. The fence that existed until 1999 was not a minor or small fence, but a large wooden fence (1 RR see defendants exhibits 1-4). In addition, the Hollands repaired and kept up the fence so that it would enclose their property (1 RR 115). Thus, the fence was a designedly enclosed fence and adverse possession is proper. 3. The Hollands acted on their mistaken belief that they owned the property, thus adverse possession occurred. The Blaylocks allege that the Hollands never acted on their beliefs that the property on their side of the fence separating the parties backyards was theirs. This is false. The Hollands testified at trial that they openly used the property, doing all the things that any property owner with a family, pets and friends does to utilize and keep up the backyard (1 RR 112-113). Further, the Hollands use of the property was done under the watchful eye of Mr. Blaylock who admits to having looked over the fence into the Hollands backyard on numerous occasions as well as looking through the fence cracks into the Hollands backyards (1 RR 71). The 14
Hollands did not just believe the property within the fence enclosing their backyard was their property, they took all actions that a typical homeowner would take to enjoy and use the property they believed was theirs. This meets the factual requirements for a finding of adverse possession. 4. The Hollands used and enjoyed the property at issue, and did such under a claim of ownership. If the Blaylocks claim that the Hollands only claimed the property was theirs but never acted on this belief by enjoying and using the property, then the Blaylocks contradict themselves and make an alternative argument alleging the Hollands did, in fact use and enjoy the property but did not do so under a claim of ownership. This allegation is patently false. In the Blaylocks Brief they state that... the Hollands simply used the Blaylocks fence as their back fence, which the Hollands mistakenly assumed marked the edge of their property (Appellants Brief at 13). When the Hollands moved into their home in 1995 they believed the backyard fence marked the border of their property and used and enjoyed the property consistently to this day and the Blaylocks knew of this use and even looked over the fence numerous times at which time such use was verified (1 RR 71, 112-113. 119). IV. CONCLUSION The Hollands moved into their home in 1995 and always believed the property enclosed by their backyard fence was their property. The Blaylocks knew 15
the Hollands were using the backyard and never said anything until 1999 when the Hollands built a new fence. The Blaylocks waited until 2009 to file suit. The Hollands met their burden at trial of proving that they had used and enjoyed the property for over ten years and that the Hollands knew of such use the entire time. Adverse possession has been proven at trial. The dedication was not for the public at large but for the use of private utility companies. This is not a situation where there is a planned community with bike and hike trails and the like. V. PRAYER For all these reasons, Appellees respectfully request the Court uphold the trial court s judgment. In addition, the Hollands request such other relief to which they may be justly and equitably entitled. Respectfully submitted, By: /s/ James J. Doyle, III James J. Doyle, III Texas Bar No. 24036501 DOYLE LAW FIRM 4054 McKinney Avenue, Suite 310 Dallas, Texas 75204 Telephone: (214) 522-6200 Facsimile: (214) 559-3124 COUNSEL FOR APPELLEES 16
CERTIFICATE OF SERVICE The undersigned certifies that on the 1 st day of February 2012, a true and correct copy of the foregoing Appellees Brief was forwarded to the following counsel of record: Via Facsimile: (214) 939-3759 Thad D. Spalding The Law Offices of Marc H. Richman 304 South Record Street Dallas, Texas 75202-4738 /s/ James J. Doyle, III James J. Doyle, III 17