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:
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| 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.
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| 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:
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| Fig. 3: ABA'a Model Code of Conduct on judges as mediator |
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| 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:
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| 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 1st 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.
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| 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.
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| 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:
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| 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.
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| 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
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