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Filed
12 September 28 P4:53
Amalia Rodriguez-Mendoza
District Clerk
Travis District
NO. D-1-GN-11-002613 D--GN-11-002613
FRIENDLY WILL BAPTIST CHURCH § IN THE DISTRICT COURT
Plaintiff, Counter-Defendant §
§
Vv. § 200TH JUDICIAL DISTRICT
§
JAMES EDWARD BRET BARTON §
Defendant, Counter-Plaintiff. § OF TRAVIS COUNTY, TEXAS
OTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES the Friendly Will Baptist Church (the “Church”), Plaintiff and Counter-
Defendant! in this cause, by and through their attorney of record, Martin J. Cirkiel, of Cirkiel &
Associates, P.C., complaining of and about James Edward Bret Barton (“Barton”), Defendant,
Counter-Plaintiff, and files this their Motion To Dismiss Barton’s claim of ownership as to certain
Church property, and would respectfully show the Court the following:
I, BRIEF INTRODUCTION OF THE CASE
1, The Friendly Will Baptist Church has owned certain property at 414 West Johanna, Austin,
Texas since 1976. In 1993 Mr. Barton put up a fence that encroached on the Church’s land.
In 2006, the City of Austin claimed the land within this fenced areas for public use, as an
easement. Over four years later and in 2010 Barton filed a Memorandum Of Title in the
Travis County Real Property records stating that he owned the property inside the fence
since 2003 pursuant to the theory of adverse possession.
2. Barton’s claim is illegal and misplaced because a claim for adverse possession is not
sustainable when the land claimed, as it is in this cause, is used for a public purpose. Tex.
Civ, Pract, & Rem. Code 16.030.
3. As such any and all documents that Barton has filed in support his claim on the land should
"| After Church filed their Original Petition Mr. Barton filed a Counterclaim. Since that
time the Church as repled two times and Barton has not filed another Counterclaim. Nevertheless,
while the claim of Adverse Possession is set as affirmative defense or a Counterclaim is of no matter,
Tex. Civ, Pract. & Rem, Code 16.030 controls, and the Church files this Motion To Dismiss
accordingly.
Motion To Dismiss 1be stricken from the public record and the Church’s Motion should be granted. .
IV, EVIDENCE CONSIDERED
4. The Friendly Will Baptist Church incorporates by reference the factual contentions noted in
their Plaintiff's Amended Petition that has not been specially excepted by Defendant; with
such facts more fully addressed and supported with proper citation accordingly.
5. The Church also relies upon all the statements and arguments provided by the Defendant
in his own pleadings motions responses, which evidence is deemed admitted and is self-
authenticated. See Tex, R. Civ. P. 193.7; Lyons v. Lindsey Morden Claims Mgmt. 985
S.W.2d 86, 92 (Tex. App. — El Paso, 1998, no pet.)[Plaintiff may rely upon other party’s
pleadings as “judicial admissions”).
6. STATEMENT OF INTENT- Plaintiff relies upon Unfiled Discovery Products as summary-
judgement proof. Tex. R. Civ. P, 166a(d). McConathy v. McConathy, 869 S.W.2d 341, 342,
n. 2, (Tex. 1994), including Barton’s own deposition, discovery responses, disclosures,
interrogatories and request for production.
7. The Church further requests that this Court to take judicial notice of any and all attached
public documents that have been stamped as such [Tex. R. Evid. 201]
8. Last, the Friendly Will Baptist Church incorporates by reference and includes as if fully set
forth herein, all the documents attached in their Motion To Expunge Lis Pendens. That
document specifically includes:
a. The Affidavit of James Edward Bret Barton, attached in his response to “Plaintiff's
No-Evidence Summary Judgement,” as Exhibit A and attached hereto also as Exhibit
A and incorporated herein as if fully set forth;
b. The Memorandum of Title, including the legal description of Additional Parcel and
survey exhibit of Edwardo O. Mendez and another by Thomas P. Dixon; also
attached in his response to “Plaintiff's No-Evidence Summary Judgement,” as
Exhibit B and attached hereto also as Exhibit B and incorporated herein as if fully
Motion To Dismiss 210.
11.
12.
13.
14,
set forth;
c. Deposition (excerpts) Of James Edward Bret Barton (Exh. C);
d. Letter To Emmanuel Limuel, Jr,, authored by Barton (Exh. D)[Exh. 2 at Deposition
of Barton which also includes Barton’s Memorandum Of Title; Survey Field Notes;
and Survey (already provided above);
e City of Austin Easement Documents (Exh. E) [Tex. R. Evid. 107];
f. Lis Pendens Filed by Barton (Exh. F); and
g. Affidavit of Martin J. Cirkiel (Exh. G).
In any case, the Church notes that all such evidence produced, is incorporated herein by
reference as if fully set forth and will be cited accordingly.
IIL. FACTUAL AND PROCEDURAL RESUME
The Friendly Wil! Baptist Church incorporates by reference and includes as if fully set forth
herein, all the facts provided with support in their Motion To Expunge Lis Pendens, The
Church specifically further notes the following.
On or about April 27, 2005 Mr. Eduardo O, Mendez completed a survey, on behalf of the
City of Austin, for the easement the City was going to use and purchase on the Church’s
property. The survey noted that a portion of the land, owned by the Church, was to be used
by the City for the easement and included a section enclosed by a fence (Exh. B, p.1, 4, 5).
The City did finally purchase a right to use an easement from the Church on December 22,
2005 (Exh. E, p. 3) that partially includes the land inside Barton’s fence.
Barton was knowledgeable about the City’s desire to procure an easement from the Church
some time back in 2005 or 2006 (Exh. C, p. 27, |. 17-23) but learned about the purchase of
the easement through his review of public records (Exh. C., p. 67, 1. 8-23) .
On or about July 29, 2010 Barton filed his Memorandum Of Title (Exh. B) claiming
ownership of certain land through the theory of adverse possession, specifically relying upon
the surveys completed by the City of Austin when negotiating with the Church for use
Motion To Dismiss 315.
16.
17.
18.
19,
20.
of the easement.
The Church filed suit in District Court in September of 201! contending that Barton’s
Memorandum Of Title was infirm and furthermore, that Barton did not satisfy the legal
elements of an adverse possession claim. He filed a Counter-Claim in response.
On or about May 29, 2012 the Church filed an amended petition.
On September 10, 2012 the Church filed a Second Amended Petition.
IV. ARGUMENT AND AUTHORITIES
The Texas Civil Practices & Remedies Code §16.030(b) clearly states that “A person may
not acquire through adverse possession any right or title to real property dedicated to public
use.” As such his claim to the land in question should be rejected and this cause dismissed.
The fact that Barton’s claim in 2010 states he owned the land as early as 2003, is of no
matter. In McNeese v, Southwestern Settlement & Dev. Corp,, 282 SW2d 932, 939 (Civ.
App. — Beaumont, 1955), motion for re-hearing over-ruled, 284 SW2d 167; the Court noted
that a period of adverse possession is terminated if possession is not maintained to the
exclusion of the record owner. As Barton, purportedly the owner of the property, permitted
the City of Austin to enter the property and use it, and paid the Church for the use, and did
not resist or exclude the City from the use or from paying the Church, his possession seized
to be exclusive? in any case.
As it is absolutely uncontroverted that Barton has in fact attempted to acquire land dedicated
to public use (and controlled by the City of Austin), through adverse possession, that attempt
must be repudiated and his Counter-Claim denied. Ina related vein, Barton’s Memorandum
Of Title must be stricken from the public record, his Counter-claim dismissed and /or his
affirmative defense based upon adverse possession be denied, the Church’s Trespass To Try
Title be granted and that the Cloud on the Church’s title be removed
2. White the Church believes that Barton’s possession has never been exclusive or otherwise
satisfies the requisites of adverse possession, this Mofion is brought on other grounds.
Motion To Dismiss 4PRAYER
WHEREFORE, Plaintiff-Counter-Defendant, the Friendly Will Baptist Church, respectfully
prays that the Defendant be cited to appear and answer herein, and that upon a final hearing of the
cause, that Barton’s Counter-Claim denied, that Barton’s Memorandum Of Title be stricken from
the public record, that the Church’s Trespass To Try Title be granted, that the Cloud on the Church’s
title be removed and the court grant such further relief, whether it be at law or in equity, or both,
as may be deemed just and proper.
Respectfully submitted,
Cirkiel & Associates, P.C.
By: \
Martin J. Cirkiel
Texas Bar No. 00783829
1901 E, Palm Valley Blvd.
Round Rock, Texas 78664
(512) 244-6658 [Telephone]
(512) 244-6014 [Facsimile]
Attomey for Plaintiff-Counter Defendant
Friendly Will Baptist Church
Motion To Dismiss 5CERTIFICATE OF SERVICE
I certify that on September 28, 2012 a true and correct copy of the foregoing document was
served to the below-referenced party, by both facsimile, as permitted by the Texas Rules Of Civil
Procedure and by Efilng pursuant to local rules.
Mr. Jeffrey S. Kelly, Esq.
The Kelly Legal Group, PLLC
P.O. Box 2125
Austin, Texas 78768-2125
4608 South Lamar Blvd
Austin, Texas 78745-1304
(512) 505-0053 [Telephone}
(512) 505-0054 [Facsimile]
Martin J. we x
Motion To Dismiss 6
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Filed 12 September 28 P4:53 Amalia Rodriguez-Mendoza District Clerk Travis District NO. D-1-GN-11-002613 D--GN-11-002613 FRIENDLY WILL BAPTIST CHURCH § IN THE DISTRICT COURT Plaintiff, Counter-Defendant § § Vv. § 200TH JUDICIAL DISTRICT § JAMES EDWARD BRET BARTON § Defendant, Counter-Plaintiff. § OF TRAVIS COUNTY, TEXAS OTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES the Friendly Will Baptist Church (the “Church”), Plaintiff and Counter- Defendant! in this cause, by and through their attorney of record, Martin J. Cirkiel, of Cirkiel & Associates, P.C., complaining of and about James Edward Bret Barton (“Barton”), Defendant, Counter-Plaintiff, and files this their Motion To Dismiss Barton’s claim of ownership as to certain Church property, and would respectfully show the Court the following: I, BRIEF INTRODUCTION OF THE CASE 1, The Friendly Will Baptist Church has owned certain property at 414 West Johanna, Austin, Texas since 1976. In 1993 Mr. Barton put up a fence that encroached on the Church’s land. In 2006, the City of Austin claimed the land within this fenced areas for public use, as an easement. Over four years later and in 2010 Barton filed a Memorandum Of Title in the Travis County Real Property records stating that he owned the property inside the fence since 2003 pursuant to the theory of adverse possession. 2. Barton’s claim is illegal and misplaced because a claim for adverse possession is not sustainable when the land claimed, as it is in this cause, is used for a public purpose. Tex. Civ, Pract, & Rem. Code 16.030. 3. As such any and all documents that Barton has filed in support his claim on the land should "| After Church filed their Original Petition Mr. Barton filed a Counterclaim. Since that time the Church as repled two times and Barton has not filed another Counterclaim. Nevertheless, while the claim of Adverse Possession is set as affirmative defense or a Counterclaim is of no matter, Tex. Civ, Pract. & Rem, Code 16.030 controls, and the Church files this Motion To Dismiss accordingly. Motion To Dismiss 1be stricken from the public record and the Church’s Motion should be granted. . IV, EVIDENCE CONSIDERED 4. The Friendly Will Baptist Church incorporates by reference the factual contentions noted in their Plaintiff's Amended Petition that has not been specially excepted by Defendant; with such facts more fully addressed and supported with proper citation accordingly. 5. The Church also relies upon all the statements and arguments provided by the Defendant in his own pleadings motions responses, which evidence is deemed admitted and is self- authenticated. See Tex, R. Civ. P. 193.7; Lyons v. Lindsey Morden Claims Mgmt. 985 S.W.2d 86, 92 (Tex. App. — El Paso, 1998, no pet.)[Plaintiff may rely upon other party’s pleadings as “judicial admissions”). 6. STATEMENT OF INTENT- Plaintiff relies upon Unfiled Discovery Products as summary- judgement proof. Tex. R. Civ. P, 166a(d). McConathy v. McConathy, 869 S.W.2d 341, 342, n. 2, (Tex. 1994), including Barton’s own deposition, discovery responses, disclosures, interrogatories and request for production. 7. The Church further requests that this Court to take judicial notice of any and all attached public documents that have been stamped as such [Tex. R. Evid. 201] 8. Last, the Friendly Will Baptist Church incorporates by reference and includes as if fully set forth herein, all the documents attached in their Motion To Expunge Lis Pendens. That document specifically includes: a. The Affidavit of James Edward Bret Barton, attached in his response to “Plaintiff's No-Evidence Summary Judgement,” as Exhibit A and attached hereto also as Exhibit A and incorporated herein as if fully set forth; b. The Memorandum of Title, including the legal description of Additional Parcel and survey exhibit of Edwardo O. Mendez and another by Thomas P. Dixon; also attached in his response to “Plaintiff's No-Evidence Summary Judgement,” as Exhibit B and attached hereto also as Exhibit B and incorporated herein as if fully Motion To Dismiss 210. 11. 12. 13. 14, set forth; c. Deposition (excerpts) Of James Edward Bret Barton (Exh. C); d. Letter To Emmanuel Limuel, Jr,, authored by Barton (Exh. D)[Exh. 2 at Deposition of Barton which also includes Barton’s Memorandum Of Title; Survey Field Notes; and Survey (already provided above); e City of Austin Easement Documents (Exh. E) [Tex. R. Evid. 107]; f. Lis Pendens Filed by Barton (Exh. F); and g. Affidavit of Martin J. Cirkiel (Exh. G). In any case, the Church notes that all such evidence produced, is incorporated herein by reference as if fully set forth and will be cited accordingly. IIL. FACTUAL AND PROCEDURAL RESUME The Friendly Wil! Baptist Church incorporates by reference and includes as if fully set forth herein, all the facts provided with support in their Motion To Expunge Lis Pendens, The Church specifically further notes the following. On or about April 27, 2005 Mr. Eduardo O, Mendez completed a survey, on behalf of the City of Austin, for the easement the City was going to use and purchase on the Church’s property. The survey noted that a portion of the land, owned by the Church, was to be used by the City for the easement and included a section enclosed by a fence (Exh. B, p.1, 4, 5). The City did finally purchase a right to use an easement from the Church on December 22, 2005 (Exh. E, p. 3) that partially includes the land inside Barton’s fence. Barton was knowledgeable about the City’s desire to procure an easement from the Church some time back in 2005 or 2006 (Exh. C, p. 27, |. 17-23) but learned about the purchase of the easement through his review of public records (Exh. C., p. 67, 1. 8-23) . On or about July 29, 2010 Barton filed his Memorandum Of Title (Exh. B) claiming ownership of certain land through the theory of adverse possession, specifically relying upon the surveys completed by the City of Austin when negotiating with the Church for use Motion To Dismiss 315. 16. 17. 18. 19, 20. of the easement. The Church filed suit in District Court in September of 201! contending that Barton’s Memorandum Of Title was infirm and furthermore, that Barton did not satisfy the legal elements of an adverse possession claim. He filed a Counter-Claim in response. On or about May 29, 2012 the Church filed an amended petition. On September 10, 2012 the Church filed a Second Amended Petition. IV. ARGUMENT AND AUTHORITIES The Texas Civil Practices & Remedies Code §16.030(b) clearly states that “A person may not acquire through adverse possession any right or title to real property dedicated to public use.” As such his claim to the land in question should be rejected and this cause dismissed. The fact that Barton’s claim in 2010 states he owned the land as early as 2003, is of no matter. In McNeese v, Southwestern Settlement & Dev. Corp,, 282 SW2d 932, 939 (Civ. App. — Beaumont, 1955), motion for re-hearing over-ruled, 284 SW2d 167; the Court noted that a period of adverse possession is terminated if possession is not maintained to the exclusion of the record owner. As Barton, purportedly the owner of the property, permitted the City of Austin to enter the property and use it, and paid the Church for the use, and did not resist or exclude the City from the use or from paying the Church, his possession seized to be exclusive? in any case. As it is absolutely uncontroverted that Barton has in fact attempted to acquire land dedicated to public use (and controlled by the City of Austin), through adverse possession, that attempt must be repudiated and his Counter-Claim denied. Ina related vein, Barton’s Memorandum Of Title must be stricken from the public record, his Counter-claim dismissed and /or his affirmative defense based upon adverse possession be denied, the Church’s Trespass To Try Title be granted and that the Cloud on the Church’s title be removed 2. White the Church believes that Barton’s possession has never been exclusive or otherwise satisfies the requisites of adverse possession, this Mofion is brought on other grounds. Motion To Dismiss 4PRAYER WHEREFORE, Plaintiff-Counter-Defendant, the Friendly Will Baptist Church, respectfully prays that the Defendant be cited to appear and answer herein, and that upon a final hearing of the cause, that Barton’s Counter-Claim denied, that Barton’s Memorandum Of Title be stricken from the public record, that the Church’s Trespass To Try Title be granted, that the Cloud on the Church’s title be removed and the court grant such further relief, whether it be at law or in equity, or both, as may be deemed just and proper. Respectfully submitted, Cirkiel & Associates, P.C. By: \ Martin J. Cirkiel Texas Bar No. 00783829 1901 E, Palm Valley Blvd. Round Rock, Texas 78664 (512) 244-6658 [Telephone] (512) 244-6014 [Facsimile] Attomey for Plaintiff-Counter Defendant Friendly Will Baptist Church Motion To Dismiss 5CERTIFICATE OF SERVICE I certify that on September 28, 2012 a true and correct copy of the foregoing document was served to the below-referenced party, by both facsimile, as permitted by the Texas Rules Of Civil Procedure and by Efilng pursuant to local rules. Mr. Jeffrey S. Kelly, Esq. The Kelly Legal Group, PLLC P.O. Box 2125 Austin, Texas 78768-2125 4608 South Lamar Blvd Austin, Texas 78745-1304 (512) 505-0053 [Telephone} (512) 505-0054 [Facsimile] Martin J. we x Motion To Dismiss 6