Texas Court allows Adverse Possession

Neighbors refuse to correct a Scrivener's Error in their Deed

We became aware of an incorrect directional call ("West" instead of "East") in our neighbor's deed in 2018. While it looked like a minor error, its consequence was significant - it cut off a large section of our property and added it to the neighbor's property. The cut-off section took away approximately 26% of our land including a portion of our house. We believed that we had found the root-cause of the long running boundary dispute with our neighbor and hoped that it would help to finally resolve this dreadful matter - we could not have been more wrong.

Fig. 1: Neighbor's Deed Error cuts off 26% of our Property

We first sent the neighbors a letter, describing the scrivener's error in detail (including sketches) and asked them to correct their erroneous deed, and also to cooperate in relocating the misplaced shared fence to the correct boundary line - one year earlier we had learned from a Land Title Survey of our property that the fence between the two properties encroached onto our side by as much as one foot.

The neighbors responded by denying the error in their deed and refused to cooperate. To clear the cloud on our title we had little choice but to file a lawsuit (Case no. 2018-61583, 190th District Court in Harris County, Judge Beau Miller).

In response, the neighbors filed a counter suit, denouncing our lawsuit as frivolous. Firmly grounded in a post-fact world, they claimed to have a "true and correct title". For about one year the neighbors and their attorney continued filing court documents containing this knowingly false claim.  

About one year after we filed our original complaint, the neighbors produced a Nonmaterial Correction Affidavit per Texas Property Code 5.028 to correct their erroneous deed. With this, the judge promptly declared the deed error as resolved and moot. By then, our legal bill was approximately $30,000. 

Shortly thereafter, our neighbor admitted during a sworn deposition (Clerk File 88407458.PDF, 12/6/2019) that he had known about the deed error since 2012, when he was told about it by his surveyor (see Fig. 2). He also admitted that he knew it needed to be corrected. The scrivener error was also noted by the surveyor on the survey the neighbors got done in 2012.

A few days later the neighbors' attorney, on their behalf, filed a motion with the court stating that they "do not dispute and have never disputed the direction of the call on their deed was incorrect" (see Clerk File 88407453.PDF, pg. 2, 12/6/2019). 

So while the judge watched on, we spent the first year of this lawsuit fighting against the neighbors' persistent perjury. When we notified the judge about this blatant and continued misrepresentations of facts by the neighbors and their attorney, the judge had nothing to say about it, and did not take any action. 

As the case proceeded through the courts, this madness continued. Just one example is the Appellee's Brief filed by the neighbors' attorney with the First Court of Appeals (Link) in 2021. On page 5 of this brief the neighbor's attorney still proffers the earlier debunked lie that our neighbors "had been unaware of the 40-year-old scrivener's error until just before the Muehlners filed their lawsuit" (for a more detailed description of other misrepresentations see the upcoming post "False Police Reports and other Lies" in this blog).

Fig. 2: Neighbor's sworn deposition contradicts Appellee's Brief

Ultimately, the cloud on our title was never completely cleared. A nonmaterial correction instrument is meant to correct facial imperfections in title among agreeable parties, but not to re-assign or convey title. Our case would have required at least a material correction instrument per Texas Property Code 5.029 (LINK), because the law clearly states that a material correction is needed when land is added or removed from a conveyance, which is the case here. In addition, the judge also denied our request for a quitclaim deed for the disputed area and a declaratory judgement in our Quiet Title claim. I will come back to the details of the title issue in a separate post in this blog.

Judge grants Adverse Possession

While the problems resulting from the deed error were already bad enough, our neighbors added insult to injury by claiming adverse possession of a 6-ft by 1-ft strip of our land located on the other side of the encroaching fence. Ultimately, Judge Beau Miller allowed the adverse possession of our property solely based on the neighbor's self-serving statement. 

During the trial the neighbor testified under oath that he had installed their pool equipment in 1981 at this exact location. He said it was the original equipment and had not been moved or replaced since its installation, except for replacing the motor of the pool pump once, but not the pump itself (Figure 3).

Fig, 3: Excerpts from Neighbor's Testimony at Trial and Appellee's Brief

From the beginning, the neighbors' claim did not pass the smell test. The photograph of the pool equipment provided by the neighbors shows the equipment surprisingly unscathed and in almost new condition after almost 40 years of exposure to the Houston weather. This picture should have immediately raised a red flag. For the judge, however, it was perfectly plausible.

Fig. 4: Defendants' Pool Equipment after almost 40 years Exposure to Houston Weather

Overlooked by the judge was also the evidence provided by our Land Title Survey performed by Karl Bowles of B&B Surveying (our expert witness) in 2017 (B&B Survey). We presented this survey as evidence at the trial, where both parties agreed that it is a correct survey. The standard for Land Title Surveys (a.k.a. Category 1A, Condition II Survey) dictates that land improvements within about 5 feet on both sides of the property line must be shown. Notably, the B&B Survey of 2017 shows no pool equipment at the claimed location, while it does properly show all other improvements in this area (telephone box, utility pole, etc.). 

Hence, the B&B Land Title Survey, performed just one year prior to the lawsuit, contradicts the neighbor's claim that the pool equipment had been in its location since 1981 (Note: the pool equipment is also not shown on the survey submitted by the neighbor and performed by surveyor Probstfeld in 2012, though the Probstfeld survey was dismissed during trial because of several deficiencies).

Fig. 5: B&B Survey proves Absence of Pool Equipment in 2017

Following the trial, but still before the final judgment was issued, the judge ordered both party's surveyors to visit the properties for inspection and verification of the northern boundary marker located within the disputed area. After this inspection surveyor Karl Bowles of B&B Surveying submitted a written statement and photographs to the judge. In his letter the surveyor made the judge aware that, he believed that in 2017 the pool equipment was not at its current location, and that the surveyor would have been required to locate the pool equipment on his survey drawing if it was there during the 2017 survey (Surveyor's Letter to Judge).

Surveyor Bowles' letter to the judge also clarifies that the pool equipment he encountered during the 2020 inspection "appears new, for the most part" and he provided four photographs that illustrated his findings (Figure 6, Clerk File 93507388.PDF & 93507392.PDF, 12/14/2020). 

Fig. 6: Surveyor's Photos of Neighbor's Pool Equipment taken Dec. 2020

About 18 months after the court had issued the final judgement, and while this case was in appeal, we were able to obtain the original digital photos taken by surveyor Bowles in 2020. We managed to magnify these photos sufficiently to determine the brand and type of some of the equipment as well as the serial number of the pool pump. This information proves that the neighbor's claim about the pool equipment was untrue. Apparently, he committed perjury to steal the disputed land from us.

The brand of the neighbors' pool pump is Hayward, which has the date and location of manufacture visibly coded into the serial number of their products. A description of Hayward's coding system is described in one of Hayward's Technical Updates for Pool Professionals and can be downloaded from this LINK. Further reading on Hayward serial numbers can be found HERE. The relevant page of Hayward's Technical Update is shown in Figure 8.

Per Hayward's serial number code, our neighbor's pool pump was manufactured in January 2017 at Hayward's Clemmons, NC, facility. This pool pump could certainly not have been in its current location in 1981, nor in 2007, as it was claimed under oath by our neighbor.

Fig. 7: Surveyor's Photo of Pool Pump with Magnification of its Serial Number

Fig. 8: Excerpt from Hayward's Technical Update

In addition to the pool pump, the surveyor's photographs taken 2020 also show a pool cleaner booster pump (see Figures 6 and 9) as part of the neighbor's pool equipment. Zooming into the surveyors' photos shows that the booster pump is a Polaris model PB4SQ.  Polaris is a brand of the company Fluidra S.A. (Fluidra-Polaris) that also manufactures this equipment. 

Fig. 9: Magnification of Surveyor's Photo showing Polaris PB4SQ Booster Pump

Figure 10 shows the email we received from Fluidra technical support in response to our inquiry on when the model PB4SQ was first being manufactured. In this email Fluidra's technical support representative confirmed that the Polaris PB4SQ first started being manufactured in 2017. This booster pump could therefore also not have been in its current location in 1981, nor in 2007, as claimed under oath by our neighbor.

Fig. 10: Email from Fluidra Technical Support
confirming Model PB4SQ started being manufactured in 2017.

Finally, even the manufacturing stamp on some of the PVC piping is faintly visible on the surveyor's photos as seen on Figure 11 below.

Fig. 11: Manufacturing Stamp on a Piece of PVC Pipe connecting the Pool Equipment 

The piece of PVC pipe visible on Figure 11 carries a manufacturing stamp that reads "NSF-dwv & DWV JM90 06 May 12". It is clear the piping was not installed in 1981, as claimed under oath by our neighbor.

While our neighbors provided no evidence supporting the adverse possession claim other than their self-serving statement, the judge seemed to have made up his opinion early on. He found the neighbor's sole statement sufficient to grant the adverse possession of our property and to deny us a declaratory judgement for our quiet title case, as well as the recovery of any attorney's fees. 

The judge was so determined to give away our property by adverse possession that he even ignored the important evidence by our surveyor. Judge Beau Miller signed the final judgment a few weeks later. The appeals court explained later: "In a bench trial, the trial court is the sole judge of the witness' credibility and the weight to be given their testimony. In resolving factual disputes, the trial court may choose to believe one witness and disbelieve others, and it may resolve any inconsistencies in a witness's testimony." 

By his "judging of the witness' credibility" the judge had effectively relieved the adverse possessor from the burden to proof his claim. In doing so, the judge had shifted the burden to disproof the adverse possessor's claim to us, the holder of the rightful title. 

This runs counter to the principles for adverse possession followed by other courts in Texas. It is therefore interesting that the appeals court upheld this twist in the application of Texas' adverse possession laws. 

Interesting is also that the judge found the unproven and self-serving statement of the adverse possessor more creditable than all evidence, including the statement of our professional surveyor (expert witness). The neighbor's earlier misrepresentations had already shown that truthfulness is not one of the neighbors' virtues. 

We were left somewhat speechless. Was the judge's ability to resolve factual disputes impaired for some reason?

Judge refuses to rule on Entire Boundary

The judge's somewhat "unorthodox" views were not limited to the adverse possession issue.  For some reason he also refused to rule on the entire boundary line, although the boundary line was one of the core reasons of our lawsuit.

The entire fence line dividing the two properties encroaches onto our property. Since the neighbor refused to cooperate in correcting the crooked fence, we included a request to rule on the boundary line in our original complaint to the court.

The fence between the two properties consists of two sections, the rear section is an 81-foot long wood fence that stops at the gate to the backyard. Forward of the wood fence, and in its continuation, is the neighbors' 40-foot long iron fence. The original wood fence was allegedly built by the developer of the neighborhood. The wrought iron fence was allegedly built in 2001 by our neighbors themselves, about six years before we bought our house. 

The encroachment of both fence sections onto our property was confirmed by the B&B Land Title Survey in 2017, but it was also identified on earlier surveys, including the 2012 Probstfeld survey submitted to the court as evidence by the neighbors.

To our surprise, the first judgment of Judge Beau Miller only addressed the wood fence, but it was silent on the section with the iron fence.

Here the story became interesting. We notified the judge about this lapse during the first court hearing after the trial. At that time the judge replied that on the portion of the boundary line where he had not explicitly ruled, both parties would have to clear the boundary of any encroachments. 

However, at the following court hearing shortly thereafter, the judge had completely changed his mind. Now he stated that the neighbors could leave their iron fence where it was, and, in case we would challenge it, he would "give it to them by adverse possession". Interestingly, the neighbors had never raised any claim for adverse possession of this section. 

It is also entirely unclear what caused Judge Beau Miller to change his opinion so drastically within a few days, as the court filings contains no correspondence on this specific matter between the court and the parties. 

Sure enough, the neighbors' encroaching iron fence is nowhere addressed in the final judgment issued by Judge Beau Miller. 

On appeal, the neighbors' attorney tried to explain that their iron fence was nowhere mentioned and was not even part of the lawsuit. This is not only incorrect, the iron fence was, in fact, mentioned specifically, even in their own finding of facts (Clerk File 92843169.PDF, filed 10/28/2020); their claim is also absurd: since the lawsuit was about "the boundary", and the neighbors' iron fence physically constitutes a part of the boundary line, how could the iron fence then not be a part of the lawsuit?

The facts being as they may, the appeals court sided with the neighbor's argument.

Were the Courts subverted?

We appealed the trial court's decision shortly after Judge Beau Miller had signed his final judgement in January 2021. 

The appeals court confirmed the trial court's judgment and denied a further review. 

We also brought this case before the Texas Supreme Court, but the Supreme Court denied our petition without comment. It also denied our motion for rehearing without comment.

In justifying the trial court's decision on adverse possession, the appeals court specifically addressed two issues:

1. The location of the pool equipment adversely possessing our land.
2. The visible appropriation due to our (falsely alleged) knowledge of the pool equipment.

With regards to the pool equipment location the appeals court found that the trial court's decision to grant the adverse possession claim is "a question of credibility of the witness." (see Figure 12).

Fig. 12: Excerpt from Appeals Court Memorandum Opinion, pg. 14.

With the court's decision on the adverse possession hinging on the credibility of the witness, the witness' perjury about the pool equipment had obviously subverted the integrity of the court.

With regards to visible appropriation the appeals court argued that the neighbor's appropriation of our land was "a visible appropriation and possession of the land, sufficient to give notice to the record title holder". This conclusion is based on the appeals court's believe that we had seen the pool equipment in 2007 when the fence was replaced and that we knew since then that it was occupying our property (see Figure 13). 

Fig. 13: Excerpt from Appeals Court Memorandum Opinion, pg. 14

However, the appeals court's belief is incorrect. Fact is that we did not see the neighbor's pool equipment in 2007, nor could we have seen it because the pool equipment was not manufactured yet in 2007.

So why did the appeals court make this assumption? Nowhere in the court documents is there any evidence or even indication that we knew about the pool equipment since 2007. At closer examination it turns out that the appeals court's incorrect assumption was based on a false allegation by the neighbor's attorneys who sneaked this incorrect claim into their Appellee's Brief. The appeals court then took this perjury and made it the basis of their decision.

This is another indication that the integrity of the court was intentionally subverted. 

The side-by-side comparison between the Appellees' Brief and Memorandum Opinion of the appeals court illustrated this sleigh of hands:

Fig. 14: Appeals Court base their Opinion on made-up claims by Neighbor's Attorneys

Moreover, the court documentation contains actual evidence that in 2007 we did not see the area behind the fence because we were not home when the fence was replaced. Clerk File 88662158.PDF, filed on 12/23/2019 contains an affidavit that explains our absence during the fence replacement. Accordingly, we testified during trial that we were unaware of the neighbor's pool equipment up to the lawsuit in 2018 (see Figure 14 and trial transcript pg. 98/99, also RR2-98).

Fig. 15: Excerpt from Trial Transcript, pp. 98/99, RR2-98

Continue following this story on our upcoming posts.

Experience in the Court

This is our opinion of what we experienced in Judge Beau Miller's court. 

For more details of this case please check our previous post at LINK1, LINK2, and LINK3.

Judge allows Case to drag on

Our lawsuit started with several months of discovery during which the defendants’ attorney bombarded us with numerous nonsensical requests for interrogatories. While the core of this lawsuit was the correction of the defendants' erroneous deed as well as the determination of the boundary line, the defendants’ attorney kept requesting us to produce all photos and videos of the defendants that prove the boundary line.

Although we sent the defendants an attorney's letter prior to filing a lawsuit, accurately identifying and describing the scrivener’s error in their deed, the defendants kept claiming to have a “true and correct title” for more than a year and they filed a false countersuit.

In all this time the judge did nothing to intervene in this nonsense and just watched on while the defendants were draining our finances. It was as if the defendants’ deliberate strategy was to wear us out in order to make us go away, and the judge condoned it.

Judge Beau Miller mediates the Case

Prior to the trial the judge ordered the parties to two mediations – both were unsuccessful. The first mediation was led by an independent mediator. The second mediation was conducted by Judge Beau Miller. This fact deserves a closer look.

It was not until the trial that we learned that the second mediation must have been requested by the defendants. The judge explained during the trial:

Fig. 1: Judge claiming parties asked Court to mediate (excerpt from trial transcript)

We did not ask for this judicial mediation. We had absolutely no desire for another mediation since we had just wasted 18 months on bad faith negotiations and had spent a fair amount of money being led around in circles. Since we did not ask for this judicial mediation, the request must have come from the defendants. An email we received from our attorney on January 29, 2020, sheds some light on what actually happened.

Fig. 2 Attorney's email claiming the judge ordered judicial mediation. 

As per our attorney, it was the judge who wanted “this case settled so bad” and who showed such unprecedented interest in our case that he forced the judicial mediation on us. However, what appeared to our attorney as the judge's extraordinary level of interest may have been nothing more than the judge granting a favor for the defendants.

Unexplained remains when and how the court was asked to mediate the case. The official court documents contain no evidence of such a request. So, we are left wondering if the judge’s statement during the trial referred to a side communication he had with the defendants.

In our opinion, since the judge acted as mediator in this case, he should have recused himself as the judge. The American Bar Association’s Model Code of Conduct (LINK) states in Canon 3: 

Fig. 3: ABA'a Model Code of Conduct on judges as mediator

Beside the ABA’s ethics standards, there are also the ethical guidelines for the Texas Judicial Branch, evidently established by administrative order of the Texas Supreme Court and published on the website of the Texas Judicial Branch as a statewide standard (LINK). Their Ethical Guidelines for Mediators stipulate under item 12:

Fig, 4: Texas Judicial Branch ethical guidelines for mediators

For more guidance on ethical matters Judges can also consult the Texas Judicial Ethics Opinions published by the Texas Judicial Branch on their website (LINK). Here it is spelled out in plain language:

Fig. 5: Texas Judicial Ethics Opinions on mediation by a district judge

We must assume Judge Beau Miller was aware of what he was doing - his bio states that he served as the Chair of the Harris County District Courts’ Civil Trial Division Ethics and Continuing Legal Education Committee in 2020 and 2021 (LINK), His tenure was during the time when our case was in Judge Miller’s court.

Interestingly, the 1^st Court of Appeals as well as the Texas Supreme Court overlooked or ignored this aspect in their assessments of our case.

As we expected, the judicial mediation turned out to be a complete waste of our time and money. However, one incident in that mediation that left us flabbergasted is noteworthy: One year prior to our lawsuit, the defendants had filed a false police report claiming that plaintiff June Muehlner “was chasing the female defendant with a large stick swinging at her trying to hit her and threatening to kill her.” In the mediation we handed the judge documents with evidence that June Muehlner was not at home at the time when the alleged attack supposedly happened. Judge Miller took our documents, looked at them, and then calmly and without saying a word he walked over to the court’s back office, where the defendants were sitting during the mediation. We never got these documents back, nor did the judge take any action about it or lose any further word on this subject. Unfortunately, one of these documents was the original, and it is now lost for us.

Judge denies Request for Jury Trial

We provided adequate evidence to Judge Beau Miller that once again the defendants were lying and had submitted a clearly false police report. The Judge’s failure to act and the fact that he left the false police report as part of the court records and didn’t even acknowledge our evidence shocked us. We asked our attorney to request a jury trial, but the judge denied our request because he was "of the opinion that the motion is not well founded and should be denied", though admittedly, our request was filed late (see Clerk Files 92346787.PDF, 9/25/2020, and 92649271.PDF, 10/15/2020).

In his denial the judge stated that "both parties previously agreed to waive the rights to a jury trial." However, the court records show no evidence of such an agreement. There is only evidence that the defendants' preference was to have a non-jury trial (see Clerk File 88855012.PDF, 1/9/2020).

In our opinion, Judge Beau Miller should definitely have given our request for a jury trial more consideration as his mediation of the case had already cast reasonable doubt on his capacity to act as an impartial judge.

Later we learned that in a bench trial the judge is the sole authority to decide who to believe and what evidence to ignore. Judge Beau Miller made use of this authority expeditiously. For some reason the judge decided to believe the defendants’ self-serving statements and didn’t ask for any substantiating evidence. While on the other hand, he decided to disbelieve us and ignore the evidence we provided, as was explained in an earlier post in this blog. 

Judge allocates insufficient Time

On the morning of the trial the judge said he had a hard stop at 2:30pm and he needed to break the trial at 11:30am for a hearing in another case. Despite these time constraints the judge devoted a lot of time during the trial discussing a complaint brought by the defendants against us that was already discussed in an earlier emergency court hearing called for by the defendants. In that earlier court hearing the judge did not find any wrongdoing by us, and neither did he find anything when this same issue was rehashed during trial. But it robbed us of sufficient time to present our case.

Problems with the Trial Transcript

During the trial the court reporter was not present in the court room, but attended the trial from a remote location, connected to the court room by an audio line. In this situation one would expect the court reporter to use a tape recorder for his work, but evidently this is not done in Judge Beau Miller’s court (an email from the court reporter confirmed that no audio tape existed). Not surprisingly, the trial transcript is seriously flawed.

It starts with the trial transcript incorrectly identifying the trial as jury trial rather than a bench trial. Then there are at least 17 obvious instances where statements are incorrectly attributed to plaintiff June Muehlner. One of these obvious errors is shown in Figure 6 (trial transcript pg. 24) where the reporter attributes a question posed by the judge incorrectly to Ms. Muehlner. 

One can only guess how many less obvious errors are hidden in the transcript. We are aware of at least two crucial instances where the words in the transcript differ from the actual words used during the trial.

Fig. 6: One of several instances where trial transcript incorrectly attributes a statement to Ms. Muehlner 

Getting the trial transcript prepared and filed was a problem too. The transcript was due to be filed within 30 days of filing the appeal, but the court reporter failed to meet this deadline. Then the appeals court extended the deadline by another 30 days and the court reporter again failed to comply with the court’s order. Then the appeals court extended the deadline for the transcript again, and only then did the court reporter provide the written trial transcript.

No Recording of Court Conferences

In the course of our lawsuit the judge held multiple court conferences (by phone and Zoom) without any records. We were even warned that recording or notes of these conferences was not allowed. This seems strange because in this way the arguments brought forward by the parties, as well as decisions made, and instructions given by the judge during these conferences left no trace in the court documents. It gave the court proceeding the feel of arbitrariness.

One example was a fraudulent fence quote selected by the judge for reconstructing the wood fence between the two properties. This quote was submitted by the defendants. Its scope was the replacement of the existing fence line, and it included two gates. After the judge had selected this quote, the fence contractor told us that both gates were for the defendants and none for us, while we would still have to pay 50% of the entire cost. When we made the judge aware of this he responded “yea, the contractor just made a mistake”, but there was never any action taken to correct this mistake. We got stuck with this cost in the final judgement.

Fig. 7: Fence contractor informs that "Court approved no gate for you"

Another example was a request by the defendants to place the new (to-be-built) fence even further onto our property than the existing fence that encroaches by one foot onto our property. The defendants argued that it was impossible to build the new fence in the same place as the old one without having to remove their pool equipment that is located right next to the fence (see Clerk File 93427668.PDF, pg. 2, 12/9/2020). They seemed not to realize that their argument contradicted their earlier statement that their pool equipment had stayed in exactly the same position when the fence was replaced in 2007 (see Clerk File 92843169.PDF, pg. 6, 10/28/2020). During the conference call we brought this logical inconsistency to the attention of the judge, but he simply ignored it and changed the subject (Note: based on the defendants' claim the pool equipment had been in its place since 1981 the judge awarded them a portion of our property by adverse possession. A few months after the trial we learned that the defendants' claim was a perjured, as evidenced, amongst others, by the serial number of the pool pump).

Before the final judgment was issued the attorneys of both parties proposed modifications to the judge’s earlier ruling. During a video conference on January 11, 2021, Judge Beau Miller stated that he had not read the proposed judgement that our attorney had submitted and that he had no intention reading it.

It was reminiscent of an earlier conference when the judge flaunted our attorney that he (the judge) "had found a work-around" to give the defendants the disputed portion of our property by adverse possession, despite their testimony during trial that they had no intention of taking property away from us.

Judge flip-flops

In one of the post-trial conferences we notified the judge that his earlier ruling only addressed the wooden fence section but ignored the defendants’ encroaching 40-ft long iron fence adjacent to the wood fence. At that time the judge replied that on the portion of the boundary line where he had not explicitly ruled, both parties would have to clear the boundary of any encroachments. However, at the following court hearing shortly thereafter, the judge had completely changed his mind. Now he stated that the defendants could leave their iron fence where it was, and, if we were to challenge his ruling, he would "find a way to give it to them by adverse possession". Interestingly, the defendants had never raised any claim for adverse possession of this section.

The Judge's Problem with our Yard Signs

After years of continued trespasses and damage to our property by the defendants, we put up several no-trespass signs and two large signs with our house number right next to the property line. These signs proved somewhat effective in restraining the defendants’ trespasses.

While perfectly legal, the defendants apparently don’t like our signs and they want them gone. How do we know this? The judge told us so during one of the earlier court conferences. He also asked us if we would take these signs down to appease the defendants, which we refused. Since then, our yard signs seem to have become somewhat of the judge’s favorite peeve. In each of the court conferences he put undue pressure on us to get us to remove these signs. The following exchange happened during the trial:

Fig. 8: Judge Beau Miller's expresses dislike of our legally posted yard signs

Unsightly or not, what Judge Beau Miller missed was that these signs serve a purpose in defending our property. With regards to trespasses such signs have a legal significance, something a judge should know and consider.

Why the judge kept trying to pressure us to remove legally posted signs instead of making a determination of where the exact boundary line is, remains unclear. What could have motivated the judge to spend so much effort advocating for the defendants’ personal preferences?

Prejudice included

Bewildering and uncouth during the trial was the judge’s remark that “it’s the French versus the Germans”. On at least three other earlier occasions the judge also made a statement about “French against the Germans and Africans”, but the mention of “Africans” appears to have been scrubbed from the trial transcript. Since we are neither French, nor German, nor African, we are wondering what went through Judge Miller’s mind when he made this statement.

Fig. 9: Judge addressing the parties during trial 

Judge threatens us not to appeal

Very irritating was the number of times that Judge Beau Miller warned us not to appeals his ruling because it would come back right into his court, and he would punish us.

Good Teamwork

The final judgement in our lawsuit was a masterpiece of good teamwork. How it came about speaks loudly about the impropriety by which the entire case was conducted. Let me explain.

After the judge had issued his First Final Judgment, the defendants kept seeking more changes to the judgement and the judge kept extending the case to accommodate the defendants’ requests. On January 11, 2012, a conference call was held to discuss the requested modifications. This conference ended at 3pm. Since certain matters could not be resolved, it was agreed to hold another conference two weeks later.

However, at 3:25pm, exactly 25 minutes after the court conference ended, the defendants’ attorney filed a modified proposed judgement which Judge Beau Miller signed the very next day, before we had any chance to object to it.

The conference scheduled for a fortnight later was apparently a ploy. Our attorney found out about the already signed judgement one week after it was signed, while we were meeting with him in preparation of the never-to-be-held conference.

Flaws in the Final Judgement

Judge Beau Miller never vacated his first Final Judgement, so both the First and the Third Amended Modified And Corrected Final Judgement stand. Which one governs is up for debate. There is no Second Final Judgement, although the court records contain a restricted entry labeled Second Final Judgement. As mentioned above, the Third Final Judgement still contains the ruling on the fraudulent fence quote, and it still fails to include any ruling on the defendants encroaching 40-ft long iron fence section.

The judge ruled that the defendants now own a portion of our property by adverse possession. However, he did not order the defendants to pay taxes for the land handed to them (i.e. the adversely possessed section, and the encroachment of the defendants’ 40-ft iron fence).

In addition, the Third Final Judgement includes a survey prepared by surveyor Mathew J Probstfeld, and not the B&B survey that was agreed during trial. Probstfeld’s original 2012 survey had been dismissed during trial as being deficient. His new survey differs in crucial details from the B&B survey and from his earlier 2012 survey. This new survey was never litigated, and we were never given any chance to object to it. In fact, the court had never ordered Probstfeld to perform a new survey of the boundary line, yet the defendants simply included it in their proposed judgement and the judge signed off on it. The defendants' attorney had pulled off a classic bait-and-switch operation - right under the watchful eyes of the judge. And Judge Beau Miller made sure this stunt would stick before we could raise any objections.

The new survey was not the only surprise. The Third Final Judgement also includes a laundry list of additional stipulations that were never litigated nor pled during trial. One of these stipulations allows the defendants access onto a 3-ft strip of our property for the purpose of rebuilding a small section (about 3-ft in length by 2.5-inch wide) of their 1-ft high stone ridge that sits above ground and is located on the defendant’s property. The judgement also states that if the contractor expanding the stone ridge has to clear or move any part of plaintiff’s sprinkler system and drainage to complete the work on the stone ridge, the cost of this destruction and repair shall be borne by the plaintiffs.

You can read the entire First Final Judgement HERE, and the Third Final Judgement HERE

Title Insurance Claim denied

When we bought our property in 2007, we purchased title insurance from the LandAmerica Commonwealth Land Title Insurance Company. We chose the more expensive "Cadillac Policy", which included an owner's policy and a loan policy.

In 2018 we discovered that the title to our property was clouded by a scrivener's error in our neighbor's deed that cut off about 26% of our property and assigned it to the neighbor. (see Figure 1). It was a clear case of a defective title which should have been covered by our title policy. Unfortunately, LandAmerica went out of business in 2008 without notifying us of any forwarding address.

Figure 1: Scrivener's Error in Neighbor deed cuts away a Portion of our Property.

Immediately after we learned about our title issue, we informed Becky G. by email about our problem. Becky G. was LandAmerica's escrow officer at the closing of our house. In 2018 she was working as an escrow officer for the Charter Title Company, but she was unwilling to tell us what happened with our insurance policy or to provide any other help with our problem.

Without support from our title insurance company, we proceeded by sending an attorney's letter to our neighbors describing the scrivener's error in detail (including sketches) and asking them to correct their deed and to cooperate in relocating the misplaced shared fence to the correct boundary line - one year earlier we had learned from a Land Title Survey of our property that the fence between the two properties encroached onto our side by as much as one foot.

Our neighbors denied the error in their deed and refused to cooperate with any of our requests. To clear the cloud on our title we had little choice but to file a lawsuit, albeit still without support from our title insurance company.

It was more than a year later, and only with the help of our realtor, that we found out that Charter Title had actually taken over our title policy from LandAmerica Commonwealth Land Title. With this information we were able to file a formal insurance claim on our policy in February 2020. By that time the neighbors had already signed a Nonmaterial Correction affidavit to correct their deed error. 

The title insurance company denied our claim. Initially, they ignored our defective title and only recognized the encroachment along the boundary, which is excluded from title insurance coverage. 

Only in further correspondence did they addressed our defective deed, but they still denied our claim and any liability resulting from our insurance policy. However, they offered to reimburse us for $5,000 if we agreed to settle. We did not accept their offer as it was completely insufficient to cover the legal fees we had incurred in getting the neighbors to change their erroneous deed.

In addition, we contest that the neighbor's deed correction by a Nonmaterial Correction per Texas Property Code 5.028 is appropriate. The Texas Property Code 5.029 (LINK) clearly stipulates that a Material Correction per 5.029 is required when land is added or removed from a conveyance, which is the case here. For our lawsuit the difference between a Material and Nonmaterial Correction would have made a significant difference, as it would have affected our neighbor's claim for adverse possession of any part of our property. 

The neighbors' deed correction was performed by the Law Firm of Irelan McDaniel, who acted on behalf of the neighbors' title insurance company. It was never explained to us why a Nonmaterial Correction (5.028) was used instead of a Material Correction (5.029), as stipulated in the Texas Property Code. 

Figure 2: Risks covered by Title Insurance

Our Criminal Complaint

This post contains the criminal complaint we filed with the Harris County Sherriff's Office and with the Harris County District Attorney. The information in the complaint overlaps with what is described in other posts of this blog. However, for good bookkeeping we are including the entire complaint as it was filed with the authorities. The exhibits of the complaint can be accessed at this LINK.

Harris County Sheriff’s Office            via email: SheriffGonzalez@sheriff.hctx.net
1200 Baker Street                                via CMRRR
Houston, Texas 77002

Harris County District Attorney     via email: da@dao.hctx.net
1201 Franklin Street, Suite 600     via CMRRR
Houston, Texas 77002-1923

To whom it may concern:

Please allow this correspondence to serve as a formal complaint against Jean Pierre and Yolande Convert of 15926 Fleetwood Oaks Drive, Houston, Texas 77079, for violations of the Texas Penal Code, committed against the District Courts of Harris County, Texas. Included in these Penal Code Violations are Felony and Misdemeanor violations of the law. The Converts’ attorneys have also committed fraud upon the court, of which will also be detailed below. Edmund and June Muehlner do hereby make these statements of their own volition; based upon personal knowledge.

Violated sections of the Texas Penal Code alleged include, but are not limited to, the following:

Section 37.02 – PERJURY – Class A misdemeanor

Section 37.03 – AGGRAVATED PERJURY – felony of the third degree

Section 37.08 – FALSE REPORT TO PEACE OFFICER – Class B misdemeanor

Complainant:

Edmund and June Muehlner of 15930 Fleetwood Oaks Drive, Houston, Texas 77079

Complainee:

Jean Pierre and Yolande Convert of 15926 Fleetwood Oaks Drive, Houston, Texas 77079

Bradley Hoover of Bradley W. Hoover, P.C., 937 E. Mulberry Street, Angleton, Texas 77515

Nicole Perdue of Perdue and Kidd, 777 Post Oak Boulevard, Suite 450, Houston, Texas 77056

Mathew Probstfeld of Probstfeld & Associates, 515 Park Grove Drive, Suite 102, Katy, Texas 77450

BACKGROUND

This complaint centers around a property dispute between neighbors, the Converts and the Muehlners. Said dispute was litigated (Cause No. 2018-61583) before the Honorable Beau Miller of the 190th Judicial District Court and judgement was rendered in favor of the Converts; the Converts were granted property of which their pool equipment is located on as well as an expanded property boundary. The property in which the pool equipment is located was disputed by the Muehlners as they contend that said equipment resides on their property. The Honorable Beau Miller granted said property to the Converts via adverse possession. The Muehlners do believe and assert that said adverse possession was granted based upon incorrect and knowingly false testimony, pleadings, and documents provided by the Converts. After the rendering of judgment, the Muehlners came across new information that irrefutably displays perjury by the Converts. The Muehlners also contend that the Converts have filed false reports with law enforcement in an effort to bolster their case.

VIOLATIONS

SECTION 37.02 - PERJURY
SECTION 37.03 - AGGRAVATED PERJURY
SECTION 37.08 - FALSE REPORT TO PEACE OFFICER

The Converts have intentionally and knowingly violated Sections 37.02, 37.03, and 37.08 of the Texas Penal Code in a concerted effort to sway the Courts to grant them possession of property not rightfully theirs. The aforementioned statutes read as follows:

Sec. 37.02. PERJURY. (a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:

(1) He makes a false statement under oath or sweats to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(2) He makes a false unsworn declaration under Chapter 132, Civil Practice
and Remedies Code.

(b) An offense under this section is a Class A misdemeanor.

Sec. 37.03. AGGRAVTED PERJURY. (a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) Is made during or in connection with an official proceeding; and

(2) Is material.

(b) An offense under this section is a felony of the third degree.

Sec. 37.08. FALSE REPORT TO A PEACE OFFICER, FEDERAL SPECIAL INVESTIGATOR, LAW ENFORCEMENT EMPLOYEE, CORRECTIONS OFFICER, OR JAILER. (a) a person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1) A peace officer or federal special investigator conducting the investigation; (c) An offense under this section is a Class B misdemeanor.

On or about the date of September 10, 2018, the Muehlners filed suit against the Converts. (EXHIBIT C) On or about the date of October 15, 2018, Jean Pierre and Yolande Convert filed a counterclaim against the Muehlners that includes false information. (EXHIBIT D) In this counterclaim, the Converts assert that a “true and correct” deed is included as an exhibit. However, the deed included has a clear scrivener’s error that was previously brought to the Court’s attention in the Muehlner’s Original Petition. Mr. Convert went so far as to testify in his deposition that he had knowledge of the error since 2012, when a surveyor, Mathew Probstfeld, told him about said error and noted said error on a survey drawing. (EXHIBIT E) (EXHIBIT F) Despite the Convert’s knowledge of the error, they continued to submit pleadings from October 2018 to October 2019 asserting a “true and correct” deed. (EXHIBIT G) Such actions by the Converts display undeniable perjury and as such, warrant investigation.

On or about the date of October 25, 2019, Yolande Convert was deposed. During this deposition, Mrs. Convert knowingly and intentionally made false statements. In said deposition, Mrs. Convert stated that she did not dig a trench on the disputed property, however, submitted photographic and video evidence shows that she did, in fact, dig a trench. (EXHIBIT H) (EXHIBIT I).

On or about the date of October 25, 2019, Jean Pierre Convert was deposed. During this deposition, Mr. Convert made statements contradictory to his sworn testimony during the trial. In said deposition, Mr. Convert stated that he did not believe that he owned the disputed property, however, at the trial he reneges this assertion, stating instead that he does own the disputed property. (EXHIBIT J) (EXHIBIT K).

On or about the date of June 22, 2020, the Converts filed a false police report (EXHIBIT L) alleging criminal mischief by Mr. Muehlner. The Converts also filed an affidavit alleging that, “Mr. Muehlner had slowly approached our house late at night or after midnight.” The Converts went so far as to call for an Emergency Court Meeting , in which the Court found no wrongdoing by Mr. Muehlner as Mr. Muehlner never committed the alleged offenses. Such a blatantly false report warrants an investigation.

During the trial on or about October 16, 2020, Jean Pierre Convert intentionally and knowingly stated under oath that his pool equipment has been in its very location since 1981 and that the only modifications or changes made was the replacement of the pump motor. (EXHIBIT M) The Court ordered a post-trial survey to be done by B&B Surveying Company. B&B Surveying Company then submitted said survey along with photographs of the equipment. (EXHIBIT N) From the survey and photographs, the Muehlners discovered the serial numbers for the pool pump. The Muehlners subsequently inquired as to the manufacture date of this pump and determined that the pump was not manufactured until 2017. Further, the Muehlners were notified that the pool cleaner booster pump was not manufactured prior to 2017. (EXHIBIT O) The PVC piping also show a manufacturing stamp of 2012. This is irrefutable evidence that Jean Pierre Convert knew his statement was false and misleading as the equipment has clearly been moved and replaced. It is the belief of the Muehlners that these statements were paramount to the Court’s judgment in favor of the Converts and as such, should be investigated.

FRAUD UPON THE COURT BY ATTORNEY

"Since attorney are officers of the court, their conduct, if dishonesty, would constitute fraud on the court.” H.K. Porter Co., Inc. v. Goodyear Tire Rubber Co., 536 F.2d 1115, 1119 (6th Cir. 1976) The Muehlners assert that by and through Mr. Bradley Hoover’s and Ms. Nicole Perdue’s statements and filings to the Court, fraud upon the court has been committed. Mr. Hoover and Ms. Perdue, counselors for the Converts, have committed said fraud via perjurious statements and filings. “Perjury in which an attorney participates may be considered fraud on the court sufficient to relieve a party from a prior judgment.” cf. Hazel-Atlas Co. v. Hartford Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L.Ed. 1250 (1944).

On page 8 of the Appellees’ Brief (EXHIBIT P), counsel states that “The Muehlners did not raise the metal fence or its placement in their pleadings or during trial.” This is wholly false as can be seen on pages 8 and 18 of the trial transcript (EXHIBIT Q), whereas counsel for the Muehlners explicitly states, “in addition to what wooden fence, it’s also a steel – steel fence as well, and I believe belongs to the defendants solely.” Counsel had clear and indisputable knowledge that the iron fence was a material point of contention between parties and had been addressed before yet still made these false statements. Such can be seen clearly through counsel’s previous filings of Finding of Facts (EXHIBIT R), whereas counsel’s own heading mentions the iron fence, and a previously filed letter from the Converts’ former counsel in which the iron fence is mentioned multiple times. (EXHIBIT S) Due to the false statements of counsel, the Appellate Court mistakenly determined that the iron fence was not subject of the litigation (EXHIBIT T), when in fact, the entire lawsuit was based on the entire boundary line; not just a specific section of the boundary line. (EXHIBIT C)

On page 16 of the Appellees’ Brief (EXHIBIT U), counsel states that “The Muehlners have known about the Converts’ pool and the placement of their pool equipment since at least November 2007 when the wood fence was removed and replaced with the currently existing wood fence.” This is also wholly false. The Muehlners have testified via sworn affidavit that was submitted to the Court, that they were not home at the time of the fence installation and therefore could not have seen or possessed knowledge of the placement of the pool equipment. (EXHIBIT V) Further, the Muehlners assert that as the pool equipment was not manufactured until after 2007, they could not possibly have seen said equipment. Due to said false statement, the Appellate Court mistakenly determined that the Muehlners had knowledge of the location of the pool equipment and thus granted adverse possession.

Counsel, having based their testimonies, statements, and filings on the false assertions of their clients, the Converts, have rendered the Courts incapable of impropriety. As such, the Converts have committed fraud upon the court as well, as through their testimony, the Courts came to their judgments. “It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function-thus where the impartial functions of the court have been directly corrupted.” Bulloch v. United States, 721 F.2d 713, 718 (10th Cir. 1983)

The Court of Appeals for the First District of Texas, in their Memorandum Opinion (EXHIBIT W), determined that “whether the pool equipment remained in the same place on the property, thus adversely possessing the land underneath it, is a question of credibility of the witnesses.” The Appellate Court also determined that, “Mr. Convert was the only witness at trial to testify regarding the location of the pool equipment.” As such, it is irrefutable that the Courts’ judgment was based upon Mr. Convert’s testimony and as his testimony was demonstrably false, he consequently committed fraud upon the court.

FRAUD UPON THE COURT BY SURVEYOR

Licensed land surveyors have a statutory obligation to the public as displayed through Sections 138.51, 138.55, 138.63 of the Texas Administrative Code as well as the Canons of Ethics and Rules of Professional Conduct for the Texas Society of Professional Surveyors. Acting as an expert witness for the Court, by and through the submitted surveys and testimony, professional surveyors are held to a higher standard. The aforementioned statutes read as follows:

Section 138.51. General Practice.

(a) The practice of the land surveying profession is essential to the orderly use of our physical environment, and the technical work resultant thereof has important effects on the welfare, property, economy, and security of the public; therefore, the practice of professional land surveying shall be conducted with the highest degree of ethical standards.

Section 138.55. Surveyors Shall Protect the Public.

(a) Surveyors shall be entrusted to protect the health, safety, property, and welfare of the public in the practice of their profession.

(b) Surveyors shall not perform any surveying function which, when measured by generally accepted surveying standards or procedures, is reasonably likely to result in the endangerment of lives, health, safety, property, or welfare of the public.

Section 138.63. Surveyors’ Responsibility to the Profession.

(d) Surveyors should strive to promote responsibility, commitment, and ethics both in the educations and practice phases of surveying. They should attempt to enhance society’s awareness of surveyors’ responsibilities to the public and encourage the communication of these principles of ethical conduct among surveyors.

The Muehlners do believe that Mr. Mathew Probstfeld has committed fraud upon the court and thus violated his statutory and ethical obligations to the public. Mr. Probstfeld originally drafted a survey of the Converts’ property, pursuant to employment by the Converts, on or about the date of March 20, 2012 (EXHIBIT X). Said survey was verified by Mr. Probstfeld on or about the date of July 7, 2017 (EXHIBIT Y).

Mr. Deward Bowles of B&B Surveying Company originally completed a survey of the Muehlners’ property, pursuant to employment by the Muehlners, on or about the date of July 31, 2017. (EXHIBIT Z) Said survey includes the disputed boundary. Mr. Bowles does not note the location of the disputed pool equipment, but addresses this in a letter to the Honorable Beau Miller dated December 3, 2020 (EXHIBIT A2), in which he states, “Land Surveyor would have been required to locate said pool equipment as part of the specifications for the survey he originally performed for the Muehlners. Said pool equipment appears to be new, for the most part.” Mr. Bowles goes so far as to mention, “Land Surveyor believes this pool equipment was not at its current location at the time he originally performed the survey of the Muehlners’ property.” Based upon the statements by Mr. Bowles to the Court and the lack of notation of the pool equipment by Mr. Bowles in its current location, the Muehlners assert that it appears the pool equipment has not always been in its current location as the Converts have testified to.

The Muehlners contend that Mr. Probstfeld submitted a fraudulent document to the Court in an effort to conceal the encroachment of the Converts’ iron fence onto the Muehlners’ property. The Court did not request Mr. Probstfeld to submit a drawing of the boundary line and per the parties’ stipulation and agreement during trial, the B&B Survey was agreed as the correct survey of the disputed boundary line, not including the six foot adversely possessed area at the rear of the properties. Mr. Probstfeld’s survey from 2012 shows a 0.2 foot encroachment of the iron fence onto the Muehlners’ property, yet his 2021 survey conceals said encroachment. As nothing had changed in the lawsuit, there existed no reason for Mr. Probstfeld to alter his survey to be different than his earlier one, and ultimately different that the agreed B&B Survey. (EXHIBIT B2) It appears that the only reason that Mr. Probstfeld would have drawn and submitted said altered drawing, is to give his client, the Converts, more land along the section of their iron fence and to conceal the encroachment of the iron fence onto the Muehlners’ property. Mr. Probstfeld altered his surveys in an intentional manner to benefit the Converts. As the judgment by the Court was based upon and included the alleged altered survey, it is the belief of the Muehlners that Mr. Probstfeld has knowingly mislead the Court and thus committed fraud upon the Court.

CONCLUSION

Due to the nature of the alleged offenses, this complaint has been sent to the Harris County District Attorney’s Office as well as the Harris County Sheriff’s Office in an effort to properly initiate an investigation into the egregious acts committed by the Converts, their counsel, and Mr. Probstfeld. As such and due to the preponderance of the submitted evidence, the Muehlners do respectfully request such an investigation be initiated and do hereby also request to be kept updated on the status of said investigation.

Please note, due to the large volume and size of documents such as transcripts, said documents have not been included in their entirety, instead opting for segments or sections of the applicable documents. Verifiable certifications and court-stamped pages will be included to prove validity of submitted documents. The entirety of all submitted evidence is available upon request and will be promptly provided for further inspection.

EXHIBIT LIST

All exhibits were filed and/or included in Cause No. 2018-61583 and/or the affiliated appellate case.

EXHIBIT A – Police report filed by Yolande Convert dated 7/31/2017

EXHIBIT B – Time stamped Kwik Car receipt from June Muehlner

EXHIBIT C – Muehlner Original Petition

EXHIBIT D – Convert Original Counterclaim

EXHIBIT E – Jean Pierre Convert deposition transcript dated 10/25/2019

EXHIBIT F – Probstfeld & Associates Survey dated 3/20/2012

EXHIBIT G – Convert First Amended Counterclaim

EXHIBIT H – Photograph of Yolande Convert digging trench

EXHIBIT I – Yolande Convert deposition transcript dated 10/25/2019

EXHIBIT J – Jean Pierre Convert deposition transcript dated 10/25/2019

EXHIBIT K – Trial transcript

EXHIBIT L – Jean Pierre Convert Declaration

EXHIBIT M – Trial transcript

EXHIBIT N – Post-trial B&B survey and photographs of Convert pool equipment

EXHIBIT O – PDF copy of email between Edmund Muehlner and manufacturer of pool pump equipment – photo from said email included

EXHIBIT P – Page 8 of Appellees’ Brief filed with the Court

EXHIBIT Q – Page 18 of trial transcript

EXHIBIT R – Findings of Facts filed with the Court

EXHIBIT S – Correspondence from Converts’ former counsel, DeLange, Hudspeth, McConnel & Tibbets, dated June 4, 2012

EXHIBIT T – Page 23 of Appellate Court Memorandum Opinion 

EXHIBIT U – Page 16 of Appellees’ Brief

EXHIBIT V – Sworn affidavit of Edmund and June Muehlner – not home during fence construction in 2007

EXHIBIT W – Page 14 of Appellate Court Memorandum Opinion

EXHIBIT X – Probstfeld survey dated March 20, 2012

EXHIBIT Y – Probstfeld survey dated July 7, 2017

EXHIBIT Z – B&B survey dated July 31, 2017

EXHIBIT A2 – Letter to Judge Beau Miller from Deward Bowles of B&B Surveying company dated December 3, 2020

EXHIBIT B2 – Probstfeld survey dated December 3, 2020 and slide containing B&B Survey (2017), Probstfeld Survey 92012), and New Altered Probstfeld Survey (2021)

The exhibits of the complaint can be accessed at this LINK.