Pamela Mehl v. David Stern

ACCEPTED

03-14-00697-CV

5770093

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/22/2015 2:39:38 PM

JEFFREY D. KYLE

CLERK

CASE NO. 03-14-00697-CV

IN THE THIRD COURT OF APPEALS

STATE OF TEXAS FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

PAMELA MEHL, § 6/22/2015 2:39:38 PM

§ JEFFREY D. KYLE

Clerk

Appellant, §

§

v. §

§

DAVID STERN, §

§

Appellee. §

APPELLANT’S FIRST AMENDED BRIEF

On Appeal from Cause No. D-1-GN-14-002071

In the 250th Judicial District Court

Travis County, Texas

Respectfully submitted,

THE LEFLER LAW FIRM

1530 Sun City Blvd, Ste 119

Austin, Texas 78633

T (512) 869-2579

F (866) 583-7294

/s/ Sandra M. Lefler

SANDRA M. LEFLER

State Bar No. 12161040

slefler@leflerlegal.com

LEAD COUNSEL FOR APPELLANT

NO ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellant Counsel

Pamela Mehl Sandra M. Lefler

THE LEFLER LAW FIRM

1530 Sun City Blvd, Ste 119

Austin, Texas 78633

T (512) 869-2579

F (866) 583-7294

slefler@leflerlegal.com

Appellee Counsel

David Stern Brent Allen Devere

DEVERE LAW FIRM

1411 West Avenue, Ste 200

Austin, Texas 78701

T (512) 457-8080

F (512) 457-8060

bdevere@1411west.com

ii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ...................................................... ii

TABLE OF CONTENTS .................................................................................... iii

INDEX OF AUTHORITIES ............................................................................... vi

STATEMENT OF THE CASE ............................................................................ 1

STATEMENT REGARDING ORAL ARGUMENT ........................................ 3

ISSUES PRESENTED .......................................................................................... 4

STATEMENT OF FACTS ................................................................................... 6

SUMMARY OF THE ARGUMENT ................................................................ 14

ARGUMENT AND AUTHORITIES ................................................................ 16

I. APPELLANT SATISFIES THE REQUIREMENTS FOR

MAINTAINING A RESTRICTED APPEAL. THE SCOPE OF

REVIEW BY THE APPELLATE COURT INCLUDES REVIEW

OF THE ENTIRE CASE ......................................................................... 16

A. Each of the Four Elements Necessary for a Restricted Appeal

Exists Here............................................................................................ 16

B. The Scope of Review by this Court Includes Review of the

Entire Case ........................................................................................... 17

II. ERROR 1: THE ORIGINAL PETITION WAS FILED IN THE

WRONG COUNTY IN VIOLATION OF THE MANDATORY

VENUE PROVISIONS OF SECTION 15.011 OF THE TEXAS

CIVIL PRACTICE AND REMEDIES CODE. IT WAS

REVERSIBLE ERROR FOR THE TRAVIS COUNTY COURT

TO ENTER ITS JUDGMENT ................................................................ 18

iii

III. ERROR 2: APPELLEE WAS ERRONEOUSLY AWARDED

RESCISSION OF A LAND CONVEYANCE AS A REMEDY

TO HIS BREACH OF CONTRACT CLAIM, WITHOUT

ANY EVIDENCE IN THE RECORD TO SUPPORT

RESCISSION ...................................................................................... 20

IV. ERROR 3: THE DISTRICT COURT’S ARBITRARY AND

UNSUPPORTED $20,000.00 MONEY DAMAGE AWARD TO

APPELLEE CONSTITUTES APPARENT ERROR ...................... 24

V. ERROR 4: APPELLEE WAS ERRONEOUSLY AWARDED

BOTH RESCISSION AND MONEY DAMAGES UNDER THE

SINGLE CLAIM FOR BREACH OF CONTRACT ....................... 26

VI. ERROR 5: THE DISTRICT COURT’S $2,500.00

ATTORNEY FEE AWARD WAS ARBITRARY AND

UNREASONABLE, AND AWARDED WITHOUT ANY

EVIDENCE OF THE PROPRIETY OF THOSE FEES OR

THE AMOUNT THEREOF IN THE RECORD, AND THUS

CONSTITUTES REVERSIBLE ERROR ........................................ 27

VII. ERROR 6: IN ADDITION TO THE MANDATORY VENUE

REQUIREMENT UNDER SECTION 15.011, THE

RECEIVERSHIP CLAIM WAS ALSO REQUIRED TO BE

FILED IN THE COUNTY WHERE THE PROPERTY IS

LOCATED (WILLIAMSON COUNTY), YET IT WAS FILED

IN THE WRONG COUNTY (TRAVIS COUNTY) ........................ 30

VIII. ERROR 7: THE RECEIVERSHIP CLAIM FAILED TO

NAME ALL PARTIES IN INTEREST – NAMELY,

INDYMAC, THE FIRST MORTGAGE HOLDER –

AS REQUIRED BY TEX. R. CIV. P. 39 .......................................... 30

IX. ERROR 8: APPELLANT WAS NOT GIVEN THE

STATUTORILY REQUIRED THREE-DAY NOTICE

OF THE HEARING ON THE PETITION FOR

APPOINTMENT OF A RECEIVER ................................................ 33

iv

CONCLUSION AND PRAYER ........................................................................ 36

CERTIFICATE OF SERVICE ......................................................................... 37

CERTIFICATE OF COMPLIANCE ............................................................... 38

APPENDIX

v

INDEX OF AUTHORITIES

CASES Page

Alexander v. Alexander, 99 S.W.2d 061 (Tex. Comm’n App.—

Austin 1936, no writ) .................................................................................... 30

Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004) ............... 16,24,28

Arnold Motor Co. v. C.I.T. Corp., 149 S.W.2d 1056

(Tex. Comm’n App.—Galveston 1941, no writ) ........................................ 31

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812

(Tex. 1997) ................................................................................................ 28,29

Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744 (Tex. Civ. App.—

Corpus Christi 1970, no writ) ...................................................................... 30

Barker v. Roelke, 105 S.W.3d 75 (Tex. App.—Eastland 2003,

pet. denied) ..................................................................................................... 20

Basley v. Adoni Holdings, LLC, 373 S.W.3d 577 (Tex. App.—

Texarkana 2012, no pet.) .............................................................................. 28

Board of Firemen’s Relief and Retirement Fund Trustees of Harris Cnty

v. Stevens, 372 S.W.2d 572 (Tex. Civ. App. 1963, no writ)......................... 25

Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ............................................... 28

Citizens Nat. Bank Texas v. NXS Const., Inc., 387 S.W.3d 74 (Tex. App.—

Houston [14th Dist.] 2012, no pet.) .......................................................... 25,26

Cooper v. Cochran, 272 S.W.3d 756 (Tex. App.—Dallas 2008, no pet.) ........ 20

Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1,

307 S.W.2d 233 (Tex. 1957) ..................................................................... 21,27

Gray v. Phi Res., Ltd., 710 S.W.2d 566 (Tex. 1986) ......................................... 34

vi

Hani v. Jimenez, 264 S.W.3d 881 (Tex. App.—Dallas 2008, pet. denied) ..... 25

H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496 (Tex. App.—

Fort Worth 2012, no pet. h.) ........................................................................ 21

Helton v. Kimbell, 621 S.W.2d 675 (Tex. App.—Fort Worth 1981,

no writ ......................................................................................................... 33,34

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) ............. 25

In re Estate of Hardesty, 499 S.W.3d 895 (Tex. App.—

Texarkana 2014, no pet.) ............................................................................... 27

Isaacs v. Bishop, 249 S.W.3d 100 (Tex. App.—Texarkana 2008,

pet. denied) ................................................................................................ 20,22

Johnson v. Barnwell Prod. Co., 391 S.W.2d 776 (Tex. Civ. App.

—Texarkana 1965, writ ref’d n.r.e.) ................................................................ 34

Krumnow v. Krumnow, 174 S.W.3d 820 (Tex. App.—Waco 2005,

pet. denied) ..................................................................................................... 34

L.P.D. v. R.C., 959 S.W.2d 728 (Tex. App. – Austin 1998, pet. denied) ........ 17

Marion v. Marion, 205 S.W.2d 426 (Tex. Civ. App.—

San Antonio 1947, no writ ....................................................................... 34,35

Mayberry v. Tex. Dep’t of Agric., 948 S.W.2d 312 (Tex. App.—

Austin 1997, pet. denied) .............................................................................. 25

McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7 S.W.3d 725

(Tex. App.—Austin 1999, no pet.) ............................................................... 27

Merrell Dow Pharms., Inc. v. Havner, 956 S.W.2d 706 (Tex. 1996) ........ 24,29

Morton v. Hung Nguyen, 369 S.W.3d 659 (Tex. App.—

Houston 14th Dist.] 2012, no pet. h.) ............................................................ 21

vii

N. Side Bank v. Wachendorfer, 585 S.W.2d 789 (Tex. Civ. App.—

Houston [1st Dist.] 1979, no writ ) ................................................................ 34

Nationwide Life Ins. Co. v. Nations, 654 S.W.2d 860 (Tex. App.—

Houston [14th Dist.] 1983, no writ) .............................................................. 33

Nelson v. Najm, 127 S.W.3d 170 (Tex. App.—Houston

[1st Dist.] 2003 ....................................................................................... 20,21,27

Norman Communications v. Texas Eastman Co., 955 S.W.2d 269,

41 Tex. Sup. Ct. J. 83 (Tex. 1994) (per curiam) ............................... 16,17,18

Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App. –

Austin 2004) .................................................................................... 16,17,25,29

Pratt v. Amrex, Inc., 354 S.W.3d 502 (Tex. App.—San Antonio 2011,

pet. denied) ..................................................................................................... 30

Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226,

42 Tex. Sup. Ct. J. 1016 (Tex. 1999) ............................................................ 16

Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) ..................................................... 25

Scott v. Commercial Services of Perry, Inc., 121 S.W.3d 26

(Tex. App.—Tyler 2003, pet. denied) .......................................................... 20

Scott v. Sebree, 986 S.W.2d 364, (Tex. App.—Austin 1999, pet. denied) . 21,26

Starr v. Ferguson, 162 S.W.2d 130 (Tex. Comm’n App. 1942, no writ) ........ 25

Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586 (Tex. 1996) .......... 17

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006.) ............... 27

Whitson Co. v. Bluff Creek Oil Co., 256 S.W.2d 1012

(Tex. Civ. App.—Fort Worth 1953, writ dism’d) ...................................... 31

Young v. Kirsch, 814 S.W2d 77 (Tex. App.—San Antonio 1991, no pet.) ...... 25

viii

STATUTES and OTHER AUTHORITIES

TEX. CIV. PRAC. & REM. CODE § 15.001(b) ....................................................... 18

TEX. CIV. PRAC. & REM. CODE § 15.002 ............................................................ 18

TEX. CIV. PRAC. & REM. CODE § 15.011 .................................... 2,4,8,12,14,19,30

TEX. CIV. PRAC. & REM. CODE § 15.063 ............................................................ 19

TEX. CIV. PRAC. & REM. CODE § 64.091 ............................................................ 33

TEX. CIV. PRAC. & REM. CODE § 64.092 ............................................................ 33

TEX. DISCIPLINARY RULES OF PROF’L CONDUCT § 1.04 ................................... 28

TEX. R. APP. P. 26.1(c) ......................................................................................... 16

TEX. R. APP. P. 30 ................................................................................................ 16

TEX. R. CIV. P. 39 ........................................................................................... 31, 32

TEX. R. CIV. P. 39(a) .................................................................................. 13,31,32

TEX. R. CIV. P. 39(a)(ii) ....................................................................................... 32

TEX. R. CIV. P. 47 ................................................................................................. 25

TEX. R. CIV. P. 47(c) ............................................................................................ 26

TEX. R. CIV. P. 695 .................................................................................... 10, 33,34

ix

STATEMENT OF THE CASE

On June 26, 2014, Appellee David Stern filed this action in the 250th Judicial

District of Travis County, Texas for (a) Trespass to Try Title and rescission of a

real estate conveyance in Williamson County, Texas; (b) damages for breach of the

underlying contract; (c) attorney fees; and (d) the appointment of a receiver to sell

the subject real estate. (Clerk’s Record (C.R.) 3 – Original Petition.) Underlying

the lawsuit was a written settlement agreement between the parties to resolve

numerous claims asserted by them in numerous legal proceedings.

Appellant Pamela Mehl was served with process at the office of her then-

attorney, J. Randall Grimes, in Georgetown, Williamson County, Texas. (C.R. 14

– Affidavit of Service.) Appellant gave her attorney the Petition, but he never filed

a timely answer or other response to the Petition.

On July 29, 2014, the district court signed a no answer default judgment

against Appellant. (C.R. 15 – Judgment for Title to Real Estate and Damages.)

Appellant Mehl did not participate in the hearing whatsoever. No reporter’s record

was made of those proceedings. No notice was given of the district court’s hearing

addressing the appointment of the receiver. The Judgment awarded Plaintiff

rescission of only the property conveyance portion of the settlement agreement,

additional monetary damages, attorney fees, and appointed a receiver to take

possession of and sell the real property.

-1-

Appellant did not know about the Judgment in time to file post-judgment

motions or a timely ordinary appeal. After being contacted by the Receiver,

Appellant learned of the Judgment and filed a Notice of Appeal timely

commencing this restricted appeal. Appellant also filed a Petition for Writ of

Mandamus because the district court violated the mandatory venue requirements

under Section 15.011 of the Texas Civil Practice and Remedies Code, and the

receiver’s actions are threatening the sale of the property pending this appeal. The

Petition for Writ was denied. This appeal continues.

-2-

STATEMENT REGARDING ORAL ARGUMENT

Appellant waives the right to oral argument. This appeal is to be decided on

the face of the district court record, and upon the clear, unrefuted law of this state

which establishes that reversible error occurred.

-3-

ISSUES PRESENTED

1. Whether Appellant satisfies the requirements for maintaining a

restricted appeal, and what constitutes the scope of review by this Court on appeal.

2. Whether Appellee’s filing of the Original Petition in the wrong county

in violation of the mandatory venue provisions of Section 15.011 of the Texas

Civil Practice and Remedies Code, and the district court’s entry of judgment in the

wrong county constitutes reversible error.

3. Whether rescission of only a portion of a transaction – here, a land

conveyance, without evidence in the record to support rescission – constitutes

reversible error.

4. Whether it was error for the district court to award $20,000.00 in

damages without any evidence in the record to support the damages award.

5. Whether it is reversible error for the district court to award both

rescission and monetary damages under a single claim for breach of contract.

6. Whether it is reversible error for the district court to award $2,500.00

in attorney fees where the underlying judgment was erroneously entered and with

insufficient evidence in the record of the propriety of such fees or the amount

thereof.

7. Whether it is reversible error for the district court to appoint a receiver

in a county where the real property is not located.

-4-

8. Whether it is reversible error for the district court to appoint a receiver

in a case where a party in interest (namely, the first mortgage holder) is not named

as a party in the suit.

9. Whether it is reversible error for the Appellee to fail to give the

Appellant three-day notice prior to the hearing on the issue of appointment of a

receiver.

-5-

STATEMENT OF FACTS

1. On June 26, 2014, Appellee Stern filed an Original Petition against

Mehl in the Travis County District Court, on claims seeking rescission of a

conveyance of real property, in Williamson County, Texas, trespass to try title,

breach of contract, monetary damages, appointment of a receiver over the

Williamson County property, and attorney fees. (C.R. 3-12 - Original Petition.)

Underlying this suit was a settlement agreement previously entered into between

the parties resolving numerous legal claims between them pending in more than

one proceeding. (C.R. 5 - Original Petition, p. 3, ¶ 7.)

2. In Paragraph 2 of the Petition, Appellee Stern states: “Defendant

[Appellant herein] . . . can be served with process at 700 Grove Lane, Georgetown,

Texas 78626.” (C.R. 3 - Original Petition, p. 1, ¶ 2.) This Williamson County

address is the same address as the Property that is the subject of the Travis County

suit. (C.R. 4-5 - Original Petition, pp. 2-3, ¶ 6.) The entire city of Georgetown,

Texas is in Williamson County, Texas.

3. In support of his assertion that the Travis County court had

jurisdiction over this real property case, Appellee Stern’s Petition claims:

-6-

a. that the litigation settlement agreement “that is in part the basis of

this suit” was “ratified in Travis County, Texas, by a United States

Bankruptcy Judge (C.R.4 - Original Petition, p. 2, ¶ 4(a));

b. that the underlying mediation that resulted in the parties’

settlement agreement occurred in Travis County (C.R. 4 - Original

Petition, p. 2, ¶ 4(b)); and

c. that a deed of trust given by Appellant Mehl to Stern as collateral

for Mehl’s payment under the settlement agreement was negotiated

and approved by the U.S. Bankruptcy Court in Austin, Travis

County, Texas (C.R. 4 - Original Petition, p. 2, ¶ 4(c)). However,

the U.S. Bankruptcy Court for the Western District of Texas has

jurisdiction over the entirety of Williamson County, Texas as well.

Despite those allegations, Appellee Stern also acknowledged in his Original

Petition that:

a. the property that is the subject of the action is located in

Williamson County, Texas (C.R. 4-5 - Original Petition, pp. 2-3,

¶ 6);

b. the deed and the deed of trust that are the subject of the action were

each recorded in the real property records of Williamson County,

Texas (C.R. 5 - Original Petition, p. 3, ¶ 9); and

-7-

c. Appellant Stern alleged a cause of action for trespass to try title

and rescission based on an implied vendor’s lien – each of which is

a real property claim (C.R. 6-7 - Original Petition, pp. 4-5, ¶¶ 13-

16).

4. TEX. CIV. PRAC. & REM. CODE § 15.011 has a mandatory venue section for

real property. With associated real property, it is mandatory that:

Actions for recovery of real property or an estate or interest in

real property, for partition of real property, to remove

encumbrances from the title to real property, for recovery of

damages to real property, or to quiet title to real property shall

be brought in the county in which all or a part of the property is

located.

(Emphasis added.) TEX. CIV. PRAC. & REM. CODE § 15.011.

4. On July 3, 2014, Appellant Mehl was properly served with process

and the Original Petition at her then-attorney’s office, J. Randall Grimes. (C.R. 14

- Return of Service.)

5. Appellant Mehl’s attorney failed to timely answer or otherwise file

any response to the Travis County Original Petition. No documents of any kind

whatsoever were filed on her behalf.

6. On July 29, 2014, the Travis County court conducted a hearing on

Appellant Mehl’s default and on Appellee’s request for appointment of a receiver.

(C.R. 15 - Judgment for Title to Real Estate and Damages (“Judgment”) (see

Appendix A).)

-8-

7. No notice of the hearing was given to Appellant Mehl.

8. Appellant Mehl did not attend the hearing or participate in the

hearing.

9. At the July 29, 2014 hearing, the Travis County court entered a no-

answer default judgment in favor of Appellee Stern and against Appellant Mehl.

(C.R. 15 - Judgment; see Appendix A.)

10. In the Judgment, the Court ruled in favor of Appellee Stern regarding

his claims, as follows:

a. The Court recognized Stern had “a vendor’s lien, equitable lien

and a deed of trust to secure assumption for and in favor of David

Stern on . . . [t]he “Property” . . . otherwise known as 700 Grove

Lane, Georgetown, Texas, 78626, Williamson County . . . by

virtue of David Stern’s prior 50% conveyance of the Property to

Pamela Mehl” (C.R. 16 - Judgment, p. 2, ¶ A);

b. The Court awarded Stern “judgment for title and possession of

50% of the Property based on a rescission of the prior conveyance

. . .” (C.R. 16 - Judgment, p. 2, ¶ B);

c. The Court awarded Stern “actual damages against Pamela Mehl in

the amount of $20,000.00” (C.R. 16 - Judgment, p. 2, ¶ C);

-9-

d. The Court awarded Stern “attorneys’ fees in the amount of

$2,500.00” (C.R. 16 - Judgment, p. 2, ¶ D);

e. The Court awarded Stern post-judgment interest at the rate of 5%

from the date of judgment until paid (C.R. 16 - Judgment, p. 2, ¶

E);

f. Costs were taxed against Appellant Mehl (C.R. 16 - Judgment, p.

2, ¶ F); and

g. The Court found that Stern “has a right to the Property”, and that

“the Property is in danger of being materially injured,” and

appointed a receiver over the Property (C.R. 16-17 - Judgment,

pp. 2-3, ¶ G). The Receiver was ordered to post only a $200.00

bond, and was given the power to take charge and keep possession

of the Property, receive rents, and sell the Property, with the sale

proceeds being applied to extinguish any indebtedness on the

property with the balance “being paid 50/50 to Plaintiff [Stern] and

Defendant [Mehl]. (C.R. 16-17 - Judgment, p. 2-3, ¶ G.)

11. No three-day notice was given to Appellant Mehl prior to the hearing

on the appointment of the Receiver as required by Section 695 of the Texas Rules

of Civil Procedure, even though Appellee Stern even requested at paragraph 4 of

the prayer in his Original Petition that notice of the receivership hearing issue.

- 10 -

(C.R. 9 - Original Petition, p. 7, prayer ¶ 4.) (“The court fix the time and date for

hearing on the application for appointment of receiver and the Court enter an order

specifying the notice to be given Defendant of this hearing, and the manner in

which the notice is to be served.”)

12. No court reporter’s record was made at the July 29, 2014 hearing on

Appellee’s motion for default judgment.

13. The Travis County Clerk mailed written notice of the entry of the

judgment to Appellant on August 5, 2014 (C.R. 61 – Docket Sheet), but she did not

receive the Notice. The Notice was returned to the Court marked, “Unclaimed”.

(C.R. 61 - Envelope from Travis County Clerk to Appellant, postmarked “Returned

to Sender – Unclaimed – Unable to Forward, filed 9/23/2014 in the Travis County

District Court.) (Supplemental Clerk’s Record II, dated June 12, 2015 (“S.C.R.

II”) at 3 - Envelope from Travis County Clerk to Appellant, postmarked “Returned

to Sender – Unclaimed – Unable to Forward, filed 9/23/2014 in the Travis County

District Court.)

14. Appellant Mehl, unaware of the entry of the Judgment until sometime

in October 2014, when she was contacted by the Receiver, was out of time to file a

request for findings of fact and conclusions of law and/or a motion for a new trial.

(C.R. 34 - Notice of Restricted Appeal, p. 3, ¶ 10.)

- 11 -

15. Appellant Mehl filed this Restricted Appeal on November 4, 2014, 98

days following the date of the entry of the Judgment on July 29, 2014. (C.R. 34 -

Notice of Restricted Appeal.)

16. Error is apparent on the face of the record of the Travis County

Lawsuit in the following ways:

a. The Original Petition was not filed in the correct county. The real

property is located in Williamson County, and mandatory venue is

therefore required in Williamson County under Section 15.011 of

the Texas Civil Practice and Remedies Code. Appellee instead

erroneously filed suit in Travis County. (C.R. 3 - Original

Petition);

b. Appellee Stern did not specify an amount of money damages in his

Original Petition (C.R. 9 - Original Petition, p. 7, ¶ 2), yet without

a court reporter’s transcript and any proof of any evidence

presented to the Court, the no-answer default Judgment awarded

him $20,000.00 in damages. (C.R. 16 - Judgment, p. 2, ¶ C);

c. Appellee Stern did not specify an amount of attorney fees in his

Original Petition (C.R. 9 - Original Petition, p. 7, ¶ 5), yet without

a court reporter’s transcript and only meager evidence presented to

- 12 -

the Court, the no-answer default Judgment awarded him $2,500.00

in attorney’s fees. (C.R. 16 - Judgment, p. 2, ¶ D);

d. Appellee Stern sought both rescission and damages for breach of

contract (C.R. 6-7 - Original Petition, pp. 4-5, ¶13-19), and was

improperly awarded both rescission and money damages. (C.R.

16-17 - Judgment, p. 2 ¶¶ B & C);

e. Appellee Stern’s claim for appointment of a receiver was granted

by the Travis County court, even though that claim contained fatal

errors insufficient to establish Appellee Stern’s right to a receiver:

i. The receivership claim was filed in the wrong county

(Travis) rather than where the land is located (Williamson

County) (C.R. 3 - Original Petition);

ii. The receivership claim failed to name all parties in interest

as required by Rule 39(a) of the Texas Rules of Civil

Procedure; specifically, the Original Petition fails to name as

a party to the action the first mortgage holder on the

property, IndyMac. (C.R. 3 - Original Petition); and

iii. The receivership hearing occurred without the statutorily

mandated three-day notice to Appellant in violation of her

due process rights herein.

- 13 -

SUMMARY OF THE ARGUMENT

1. The Appellant satisfies the requirements for pursing this restricted

appeal.

2. The district court entered its no-answer default Judgment, wholly

disregarding that this action was not filed in the proper venue in keeping with the

mandatory venue requirements of Section 15.011 of the Texas Civil Practice &

Remedies Code. As a result, the Judgment must be reversed.

3. Several points of error appear on the face of the record requiring

reversal of the judgment:

A. The district court rescinded only a portion of a transaction –

here, a land conveyance – without addressing all of the other requirements

necessary to support rescission, including no evidence in the record to

support rescission.

B. The district court awarded $20,000.00 in damages without any

evidence in the record to support the damages award; therefore, the damage

award must be reversed.

C. The district court erroneously awarded both rescission and

monetary damages under a single claim for breach of contract.

D. The district court erroneously awarded $2,500.00 in attorney

fees on a judgment that was itself erroneously entered for the reasons set

- 14 -

forth herein, and without sufficient evidence of the propriety of such fees or

the amount thereof in the record.

E. The district court erroneously appointed a receiver over real

property in a county where the real property is not located.

F. The district court committed reversible error when it failed to

give Appellant not less than a three-day notice of the hearing on the issue of

appointment of a receiver.

- 15 -

ARGUMENTS AND AUTHORITIES

I. APPELLANT SATISFIES THE REQUIREMENTS FOR

MAINTAINING A RESTRICTED APPEAL. THE SCOPE OF

REVIEW BY THE APPELLATE COURT INCLUDES REVIEW

OF THE ENTIRE CASE.

A. Each of the Four Elements Necessary for a Restricted Appeal Exists

Here.

Pursuant to Rule 30 of the Texas Rules of Appellate Procedure, a direct

attack on a judgment by restricted appeal (1) must be brought within six months

after a trial court signs the judgment; and (2) must be brought by a party to the suit;

(3) who did not participate in the hearing that resulted in the judgment complained

of, timely file a postjudgment motion, request for findings of fact and conclusions

of law, or a notice of appeal within the normal 30-day period; and (4) the error

complained of must be apparent from the face of the record. TEX. R. APP. P. 30;

Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (citing TEX. R.

APP. P. 26.1(c), 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227,

42 Tex. Sup. Ct. J. 1016 (Tex. 1999)); Petco Animal Supplies, Inc. v. Schuster, 144

S.W.3d 554, 558-559 (Tex. App. – Austin 2004) (citing TEX. R. APP. P. 30;

Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 207, 41 Tex.

Sup. Ct. J. 83 (Tex. 1994) (per curiam).

As established in the Statement of Facts, Appellant filed this appeal 98 days

following entry of the Judgment – well within the six-month filing requirement.

- 16 -

Mehl was the named defendant in the suit below, and she was not given any notice

of and did not participate in the no-answer default judgment hearing. The essential

inquiry turns on whether Appellant took part in the “decision-making event” that

resulted in the entry of the Judgment. Texaco, Inc. v. Cent. Power & Light Co.,

925 S.W.2d 586, 589 (Tex. 1996). There is no evidence in the record that

Appellant Mehl participated in the July 29, 2014 hearing resulting in the entry of

the Judgment. Further, without any knowledge of the hearing and the court’s

action taken that day (including entry of the Judgment), Mehl missed the

opportunity to timely file a post-judgment motion, request findings of fact and

conclusions of law, or file a notice of appeal within 30 days. This is the very type

of case for which restricted appeals are intended, and Appellate satisfies the

procedural requirements.

B. The Scope of Review by this Court Includes Review of the Entire Case.

In a restricted appeal, we are limited to considering only the face of

the record, but our scope of review is otherwise the same as that in an

ordinary appeal; that is, we review the entire case.

Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 558-559 (Tex. App. –

Austin 2004)(citing Norman, 955 S.W.2d at 270; L.P.D. v. R.C., 959 S.W.2d 728,

730 (Tex. App. – Austin 1998, pet. denied). The face of the record for purposes of

restricted appeal review, consists of all the papers on file in the appeal, including

the reporter’s record. Norman Communications, 955 S.W.2d at 270. Thus, “it

- 17 -

necessarily follows that review of the entire case includes review of legal and

factual insufficiency claims.” Id.

In this case, numerous errors appear on the face of the record below

requiring reversal of the no answer default judgment.

II. ERROR 1: THE ORIGINAL PETITION WAS FILED IN THE

WRONG COUNTY IN VIOLATION OF THE MANDATORY

VENUE PROVISIONS OF SECTION 15.011 OF THE TEXAS

CIVIL PRACTICE AND REMEDIES CODE. IT WAS

REVERSIBLE ERROR FOR THE TRAVIS COUNTY COURT TO

ENTER ITS JUDGMENT.

In filing his Petition in Travis County, Appellee relied solely upon the

general venue statute set forth in Section 15.002 of the Texas Civil Practice and

Remedies Code – specifically subsection (1) thereof, which provides that all

lawsuits shall be brought “(1) in the county in which all or a substantial part of the

events or omissions giving rise to the claim occurred.”1 This wholly disregards the

definition of “proper venue” set forth at Section 15.001(b):

Sec. 15.001. DEFINITIONS. In this chapter:

***

(b) “Proper venue” means:

1

Appellee enumerated irrelevant references to Travis County in its Petition in an apparent

attempt to convince the court that Travis was “the county in which all or a substantial part of the

events . . . giving rise to the claim occurred”, under TEX. CIV. PRAC. & REM. CODE Section

15.002. (C.R. 4 - Original Petition, p. 2, ¶¶ 4-5; Appellants’ Statement of Facts, supra, ¶ 3.)

- 18 -

(1) the venue required by the mandatory provisions of

Subchapter B or another statute prescribing

mandatory venue; or

(2) if Subdivision (1) does not apply, the venue provided

by this subchapter or Subchapter C.

Here, Subchapter B provides the Mandatory Venue provision applicable to this

case. At Section 15.011 thereof, we see:

Section 15.011. LAND. Actions for recovery of real property or an

estate or interest in real property for partition of real property, to

remove encumbrances from the title to real property, for recovery of

damages to real property, or to quiet title to real property shall be

brought in the county in which all or a part of the property is located.

Thus, the “proper venue” for this case is where the subject Property is located:

Williamson County. This is a mandatory requirement for venue, not one Appellee

or the district court were free to disregard in an exercise of their own discretion.

Since Appellant’s counsel failed to file any responsive pleading to the Original

Petition and Appellant was herself unaware of the action taking place in the district

court, including the entry of the default judgment, she never had the opportunity to

seek a transfer of the action to Williamson County – the county of proper venue –

under TEX. CIV. PRAC. & REM. CODE § 15.063.

If venue is improper due to a mandatory venue provisions, this is always

reversible error.

- 19 -

Appellant also sought to correct the district court’s error through her Petition

for Writ of Mandamus also filed with this Court; however, the Petition was denied.

Therefore, Appellant looks upon this Court to remedy the district court’s disregard

of the mandatory venue statute and reverse the underlying Judgment.

Based upon the foregoing, the district court’s Judgment should be reversed

since the court lacked proper venue for addressing Plaintiff’s claims.

III. ERROR 2: APPELLEE WAS ERRONEOUSLY AWARDED

RESCISSION OF A LAND CONVEYANCE AS A REMEDY TO

HIS BREACH OF CONTRACT CLAIM, WITHOUT ANY

EVIDENCE IN THE RECORD TO SUPPORT RESCISSION.

The Judgment awarded Appellee both rescission of a conveyance of an

interest in land, and also money damages, as recovery for his claim of breach of

contract. (C.R. 16 - Judgment, p.2, ¶¶ A-D.) Rescission is an equitable remedy that

operates to set aside a contract that is legally valid, but is marred by fraud or

mistake, or, if for some other reason, the court must set it aside to avoid unjust

enrichment. Isaacs v. Bishop, 249 S.W.3d 100, 109 (Tex. App.—Texarkana 2008,

pet. denied); Nelson v. Najm, 127 S.W.3d 170, 176–177 (Tex. App.—Houston [1st

Dist.] 2003, pet. denied); Scott v. Commercial Services of Perry, Inc., 121 S.W.3d

26, 30 (Tex. App.—Tyler 2003, pet. denied); Barker v. Roelke, 105 S.W.3d 75, 84

(Tex. App.—Eastland 2003, pet. denied); see Cooper v. Cochran, 272 S.W.3d 756,

767 (Tex. App.—Dallas 2008, no pet.) (rescission is type of relief that must be

prayed for or court cannot grant it). As a general rule, the court will order the parties

- 20 -

to return any consideration paid, restoring them to their respective positions as if the

contract had never existed. Morton v. Hung Nguyen, 369 S.W.3d 659, 670 (Tex.

App.—Houston [14th Dist.] 2012, no pet. h.); H.E.B., L.L.C. v. Ardinger, 369

S.W.3d 496, 509 (Tex. App.—Fort Worth 2012, no pet. h.) (“Upon rescission, the

rights and liabilities of the parties are extinguished …”).

What makes rescission an inappropriate remedy here is that it provided

Appellee with, among other things, double recovery. Rescission is an alternative to

the recovery of damages for breach. See Scott v. Sebree, 986 S.W.2d 364, 368–370

(Tex. App.—Austin 1999, pet. denied). A party establishing grounds for rescission,

such as by proof of fraudulent inducement to make the contract, must choose either

to stand on the contract and recover damages or to rescind. Dallas Farm Mach. Co.

v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 238–239 (Tex. 1957); Nelson v. Najm, 127

S.W.3d 170, 176–177 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). As a

general rule, equity does not allow rescission of a contract for a mere breach of the

contract, particularly when damages are an adequate remedy.

Moreover, in this case there is no evidence in the record proving Appellee’s

entitlement to rescission. As with the money damage award and attorney fees, next

discussed, the record is void of any proof, as Appellee failed to request a court

reporter’s record establishing any of this proof; and, his Petition is unsworn. To be

entitled to rescission, a party must show that (1) the party and the defrauding party

- 21 -

are in the status quo (i.e., there are no retained benefits received under the

instrument and not restored to the other party), or (2) there are equitable

considerations that obviate the need for the status quo relationship. Isaacs v. Bishop,

249 S.W.3d 100, 110 (Tex. App.—Texarkana 2008, pet. denied). The court should

consider an inability to return the parties to their former position in determining

whether rescission would be equitable. Id.

Nothing appears in the record evidencing that the parties were being returned

to status quo through rescission of the conveyance only. In fact, on the face of the

record, just the opposite is true: The conveyance reversed only one small portion of

a much greater exchange of property rights and interests between the parties; thus,

the rescission was incomplete and did little to restore status quo. Instead, it placed

Appellee in a more favorable position than he was prior to the settlement, which is a

completely inequitable result. Specifically, the transaction Appellee sought to

rescind was a settlement agreement containing resolution of multiple issues and

elements of consideration entered into between the parties for the purpose of

resolving numerous legal disputes between them. Appellee’s Original Petition

explains the multi-faceted nature of this agreement:

7. The parties subsequently engaged in lengthy litigation in

several courts, including both state district court and bankruptcy court,

over a number of issues. Ultimately, the Plaintiff and Defendant

reached a settlement of the litigation that, in part, resulted in a division

of the Property.

- 22 -

8. As part of the settlement agreement, Plaintiff agreed to

transfer his 50% interest in the Property to Defendant by a Special

Warranty Deed (“Deed” herein) and Defendant in turn executed a Deed

of Trust to Secure Assumption to Plaintiff . . . whereby Defendant

agreed, among other things, to timely tender mortgage payments to the

preexisting lienholder (“Bank” herein) and ultimately refinance the

Bank mortgage by 2016.

(C.R. 5 - Original Petition, p. 3, ¶¶ 7, 8) (emphasis added).) Looking next to the

Judgment, the district court makes no mention of any of the aspects of the settlement

agreement whatsoever, does not address status quo, and does not find in the

alternative that equitable considerations obviate the need for status quo. Instead, the

district court simply states without explanation:

B. The Court hereby awards David Stern judgment for title and

possession of 50% of the Property based on a rescission of the prior

conveyance under document # 2013063557 of the Williamson County

Real Property Records.

(C.R. 16 - Judgment, p. 2, ¶ C.) The rescission, if proper, would have rescinded the

entire settlement agreement and placed the parties back in their original positions.

Instead, the district court only transferred one real property interest back to

Appellee, did not absolve Appellant of her underlying obligation regarding payment

of the first mortgage indebtedness, and makes no mention of anything else

pertaining to the settlement. This is incomplete, and is error on the face of the

record justifying reversal of the rescission of the conveyance.

- 23 -

IV. ERROR 3: THE DISTRICT COURT’S ARBITRARY AND

UNSUPPORTED $20,000.00 MONEY DAMAGE AWARD TO

APPELLEE CONSTITUTES APPARENT ERROR.

In the present suit, there exists no evidence in the record to support the

District Court’s $20,000.00 award of damages against Appellant, indicating the

award is an arbitrarily assessed amount constituting apparent error. As was

previously stated, in order for an appellant to prevail on its restricted appeal, “error

[must be] apparent on the face of the record.” Alexander v. Lynda’s Boutique, 134

S.W.3d 845, 848 (Tex. 2004). Moreover, a “no evidence” point will be sustained

when there is a complete absence of evidence of a vital fact. Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996); see also Petco Animal Supplies,

Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. App. – Austin 2004, no pet.).

Here, there exists no reporter’s record, statement of facts, or evidence of any

kind whatsoever to support the District Court’s $20,000.00 actual damages award

to Appellee. Appellee’s Original Petition was silent as to any damage amount

sought. Thus, there is nothing in the evidence to support the district court’s

Judgment itself, which awards Appellee “actual damages against [Appellant] in the

amount of $20,000 (Twenty Thousand and 00/100 Dollars).”

Further, as a general rule of pleading, the Texas Rules of Civil Procedure

require that the petition must give fair and adequate notice of the facts upon which

the petitioner bases his claim, in order to give the opposing party sufficient

- 24 -

information to enable him or her to prepare a defense. See Tex. R. Civ. P. 47;

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (citing

Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)). While the petition is not

required to plead a specific amount or measure of damages, see Young v. Kirsch,

814 S.W.2d 77, 82-83 (Tex. App.—San Antonio 1991, no pet.), it must

nevertheless sufficiently allege the relief sought. See Board of Firemen’s Relief

and Retirement Fund Trustees of Harris Cnty v. Stevens, 372 S.W.2d 572, 574

(Tex. Civ. App. 1963, no pet.) “It is well settled that the court may not grant relief

not supported by [the] pleading or prayer.” Stevens, 372 S.W.2d at 574 (citing

Starr v. Ferguson, 166 S.W.2d 130 (Tex. Comm. App. 1942, no pet.)). Therefore,

the finder of fact in a lawsuit has broad discretion to award damages within the

range of evidence presented, “so long as a rational basis exists for its calculation.”

Hani v. Jimenez, 264 S.W.3d 881, 888 (Tex. App.—Dallas 2008, pet. denied)

(citing Mayberry v. Tex. Dep’t of Agric., 948 S.W.2d 312, 317 (Tex. App.—Austin

1997, pet. denied) (emphasis added). “[The Court] may not arbitrarily assess an

amount that is not authorized or supported by the [] evidence; [it] may not ‘pull

figures out of a hat.’” Citizens Nat. Bank of Texas v. NXS Const., Inc., 387 S.W.3d

74, 83 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (emphasis added) (citation

omitted).

- 25 -

In paragraph 5 of Appellee’s Original Petition, he simply makes a claim that

the monetary damages are within the jurisdictional limits of the Court (between

$200,000.00 and $1,000,000.00), without further specifying any specific actual

damages to which he is entitled. (C.R. 4 -- Original Petition, p. 2, ¶ 5.) Indeed,

nowhere in Appellee’s Original Petition does he include a statement that he seeks

monetary relief at all, in contradiction to the Texas Rules of Civil Procedure. TEX.

R. CIV. P. § 47(c). This omission, coupled with no factual evidence or support for

the Court’s award, further bolsters the conclusion that the amount was arbitrarily

awarded and constitutes apparent error. Cf, Citizens Nat. Bank of Texas v. NXS

Const., Inc., 387 S.W.3d 74, 83 (Tex. App—Houston [14th Dist.] 2012, no pet.).

Therefore, the district court’s award of $20,000.00 actual damages must be

reversed.

V. ERROR 4: APPELLEE WAS ERRONEOUSLY AWARDED

BOTH RESCISSION AND MONEY DAMAGES UNDER THE

SINGLE CLAIM FOR BREACH OF CONTRACT

As established above, both rescission the award of damages were erroneous

and constituted reversible error. Nevertheless, if this Court were to uphold the

awards, it would constitute error. Rescission is an alternative to the recovery of

damages for breach. See Scott v. Sebree, 986 S.W.2d 364, 368-370 (Tex. App.—

Austin 1999, pet. denied). A party establishing grounds for rescission, such as by

proof of fraudulent inducement to make the contract, must choose either to stand on

- 26 -

the contract and recover damages or to rescind. Dallas Farm Mach. Co. v. Reaves,

168 Tex. 1, 307 S.W.2d 233, 238-239 (Tex. 1957); Nelson v. Najm, 127 S.W.3d

170, 176-177 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, the district

court awarded both, and that double recovery should not be allowed to stand.

Therefore, the award was reversible error and should be corrected by this Court.

VI. ERROR 5: THE DISTRICT COURT’S $2,500.00 ATTORNEY FEE

AWARD WAS ARBITRARY AND UNREASONABLE, AND WAS

AWARDED ON AN ERRONEOUS JUDGMENT, WITHOUT

SUFFICIENT EVIDENCE OF THE PROPRIETY OF THOSE

FEES OR THE AMOUNT THEREOF IN THE RECORD, AND

THUS CONSTITUTES REVERSIBLE ERROR.

The district court’s $2,500.00 attorney’s fees award to Appellee was based

upon the erroneous entry of judgment for Appellee (as above set forth) and is

unsupported by sufficient evidence in the record, making it arbitrary and

unreasonable, which constitutes apparent error. Generally, attorney’s fees in Texas

are not recoverable from an opposing party unless authorized by statute or contract.

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). Where

attorney’s fees are authorized, “[t]rial courts have wide discretion in determining

what is equitable and just in awarding [them], and appellate courts will not

overturn such a decision unless it is clear from the facts the trial court abused its

discretion.” In re Estate of Hardesty, 499 S.W.3d 895, 918 (Tex. App.—Texarkana

2014, no pet.) (citing McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7 S.W.3d 725,

731 (Tex. App.—Austin 1999, no pet.).

- 27 -

Moreover, it is a widely accepted principle that, in awarding attorney’s fees,

the amount must be “reasonable and necessary.” Bocquet v. Herring, 972 S.W.2d

19, 21 (Tex. 1998). Factors to be considered in determining what is reasonable and

necessary include: (1) the time and labor required, the novelty and difficulty of the

questions involved, and the skill required to perform the legal service properly;

(2) the likelihood that the acceptance of employment precluded other employment

by the lawyer; (3) the fee customarily charged in the locality for similar legal

services; (4) the amount involved and the results obtained; (5) the time limitations

imposed by the client or by the circumstances; (6) the nature and length of the

professional relationship with the client; (7) the experience, reputation, and ability

of the lawyer performing the services; and (8) whether the fee is fixed or

contingent on results obtained, or uncertainty of collection before the legal services

have been rendered. See Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997); TEX. DISCIPLINARY RULES OF PROF’L CONDUCT

§ 1.04. Additionally, when a party is awarded attorney fees without any legally

correct basis for the award, error has occurred, justifying reversal. Basley v. Adoni

Holdings, LLC, 373 S.W.3d 577, 588 (Tex. App.—Texarkana 2012, no pet.).

As was stated above, in order for an appellant to prevail on its restricted

appeal, “error [must be] apparent on the face of the record,” Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004), and a “no evidence” point will be

- 28 -

sustained when there is a complete absence of evidence of a vital fact. Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996); see also Petco

Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. Civ. App. – Austin

2004, no pet.). The only proof in the record in support of attorney fees is the

Affidavit of Brent Devere, which made two conclusory statements only: (a) that

10 hours of time was reasonable in this matter, and (b) that $250 per hour was an

acceptable fee. (See Supplemental Court Record I dated April 9, 2015 (“S.C.R.

I”) at 15-17). No other proof was offered in support of those conclusory

statements. Nowhere did Appellee address the numerous factors set forth in Arthur

Andersen. Moreover, as shown above, these attorney fees assume that a proper

judgment must first have been awarded in favor of Appellee in order to justify a

fee award; yet, as shown herein, the judgment itself was not proper.

Appellee here proffered no arguments, and the record contains insufficient

evidence or statement of facts that supports a finding that $2,500.00 in attorney’s

fees was reasonable and necessary. Further, nowhere in the record is there an

examination by the district court of the eight factors from Arthur Andersen. As a

result, the district court’s award of $2,500.00 for attorney’s fees was arbitrary and

unreasonable, constituting apparent error, and must be reversed.

- 29 -

VII. ERROR 6: IN ADDITION TO THE MANDATORY VENUE

REQUIREMENT UNDER SECTION 15.011, THE

RECEIVERSHIP CLAIM WAS ALSO REQUIRED TO BE FILED

IN THE COUNTY WHERE THE PROPERTY IS LOCATED

(WILLIAMSON COUNTY), YET IT WAS FILED IN THE

WRONG COUNTY (TRAVIS COUNTY).

In general the usual rules of venue apply to receivership proceedings. See,

e.g., Pratt v. Amrex, Inc., 354 S.W.3d 502, 504–505 (Tex. App.—San Antonio

2011, pet. denied) (venue exception for land determined proper venue in action by

receiver against strange to receivership); Alexander v. Alexander, 99 S.W.2d 1062,

1064 (Tex. Comm’n App.—Austin 1936, no writ) (allegation that underlying

action was for partition of real estate in Brown County was sufficient to show

jurisdiction of Brown County district court). Here, there is no question that the

mandatory venue statute in Section 15.011 applies. Consequently, the receivership

claim is similarly subject to the mandatory venue of Williamson County. The

Travis County court was without authority to issue the receivership order,

constituting reversible error.

VIII. ERROR 7: THE RECEIVERSHIP CLAIM FAILED TO NAME

ALL PARTIES IN INTEREST – NAMELY, INDYMAC, THE

FIRST MORTGAGE HOLDER -- AS REQUIRED BY TEX. R.

CIV. P. 39.

In an application for a receivership, all persons or entities over whose

properties a receiver is to be appointed are parties needed for just adjudication of

the proceeding. Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744, 747

- 30 -

(Tex. Civ. App.—Corpus Christi 1970, no writ) (all such persons held necessary

and indispensable under former Tex. R. Civ. P. 39); see also Tex. R. Civ. P. 39(a);

Arnold Motor Co. v. C. I. T. Corp., 149 S.W.2d 1056, 1059 (Tex. Comm’n App.—

Galveston 1941, no writ) (applying traditional “fundamental error” analysis). Even

before the 1970 amendments to Civil Procedure Rule 39, Texas courts had some

reluctance to treat a problem of parties as jurisdictional (see Whitson Co. v. Bluff

Creek Oil Co., 256 S.W.2d 1012, 1014 (Tex. Civ. App.—Fort Worth 1953, writ

dism’d) (in action between co-owners of oil lease, appointment of receiver was not

reversible error despite failure to join owners of overriding royalty interest,

because trial court could determine at trial on merits whether all necessary parties

had been joined). Under modern procedure, however, all persons who claim an

interest in properties placed in receivership should be joined if feasible. TEX. R.

CIV. P. 39(a). In a proper case, a property owner may be “regarded as

indispensable” TEX. R. CIV. P. 39.

Here, Appellee’s Petition acknowledges the existence of a first mortgage

lien on the property (C.R. 4-5 - Original Petition, pp. 2-3, ¶ 6), but fails to identify

the lender. In the Judgment, however, the district court attached a copy of the

Special Warranty Deed conveying Appellee’s interest in the property to Appellant

(the same conveyance that was erroneously rescinded by the district court). (C.R.

20 - Judgment, Exhibit 1.) The body of the Special Warranty Deed identifies the

- 31 -

underlying indebtedness as a $256,200.00 purchase money loan from IndyMac

Bank, F.S.B. Despite acknowledging the existence of IndyMac’s interest in the

property and in the proceedings, Appellee failed to name IndyMac as a party to the

receivership proceedings and the record fails to show any notification to IndyMac

thereof.

Rule 39(a) of the Texas Rules of Civil Procedure notes the importance of

including all parties in interest because their absence may “(ii) leave any of the

persons already parties subject to a substantial risk of incurring double, multiple, or

otherwise inconsistent obligations by reason of his claimed interest.” TEX. R. CIV.

P. 39(a)(ii). Here, Appellant Mehl assumed the first mortgage indebtedness as part

of the settlement agreement (C.R. 5 - Original Petition, p. 3, ¶¶ 7-8), in exchange

for which Appellant received an assignment of 100% of the subject property. This

conveyance, however, was rescinded by the district court, leaving no ruling,

disposition, or change in Appellant’s assumption of the first mortgage.

Consequently, Appellant is still obligated to pay the underlying indebtedness, yet

she has been stripped of 50% of the ownership in the property itself. Had IndyMac

been made a party to the action, the rights and obligations of all parties would have

been before the Court. Further, it is very unlikely that any default judgment would

have been entered against Appellant, since an interested third party (IndyMac)

- 32 -

would also have been in the picture overseeing the overall disposition of these

proceedings.

Appellee’s failure to comply with his statutory requirement to name

IndyMac renders the proceedings incomplete and enabled Appellee to assume a

position of possession (through the receiver) superior to the rights of the

underlying lienholder. The Judgment should be reversed, the receivership

appointment vacated, and the Appellee required to replead in order to add IndyMac

as a necessary party to the proceedings.

IX. ERROR 8: APPELLANT WAS NOT GIVEN THE

STATUTORILY REQUIRED THREE-DAY NOTICE OF THE

HEARING ON THE PETITION FOR APPOINTMENT OF A

RECEIVER.

There is no indication in the record of this case that Appellant was given any

notice of the hearing on Appellee’s Petition for the appointment of a receiver. If

the application for receivership concerns property that is fixed and immovable, the

court is required to give notice to the adverse party unless otherwise provided by

statute. TEX. R. CIV. P. 695 (insufficient notice given when oral request for

receivership was made after close of evidence at conclusion of temporary

injunction hearing); Helton v. Kimbell, 621 S.W.2d 675, 678 (Tex. App.—Fort

Worth 1981, no writ) (notice requirement applies to mineral receiverships under

predecessor of TEX. CIV. PRAC. & REM. CODE §§ 64.091, 64.092); see,

e.g., Nationwide Life Ins. Co. v. Nations, 654 S.W.2d 860, 861–862 (Tex. App.—

- 33 -

Houston [14th Dist.] 1983, no writ) (vacating order of receivership for lack of

notice)]. Real estate is fixed and immovable property within the meaning of Civil

Procedure Rule 695, and notice is therefore required before a receiver may be

appointed if real property is involved. Krumnow v. Krumnow, 174 S.W.3d 820,

829 (Tex. App.—Waco 2005, pet. denied); N. Side Bank v. Wachendorfer, 585

S.W.2d 789, 791–792 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ).

Under Texas Rules of Civil Procedure 695, the court must set a receivership

application for hearing and serve notice on the adverse party not less than three (3)

days before the hearing. TEX. R. CIV. P. 695; see Krumnow v. Krumnow, 174

S.W.3d 820, 829–830 (Tex. App.—Waco 2005, pet. denied) (notice improper

when court raised issue of appointment of receiver on its own motion); Marion v.

Marion, 205 S.W.2d 426, 429 (Tex. Civ. App.—San Antonio 1947, no writ) (show

cause order issued at time of original appointment does not constitute notice for

subsequent modified order of appointment). This rule does not confer personal

jurisdiction absent some type of citation or appearance by the named defendant.

Gray v. Phi Res., Ltd., 710 S.W.2d 566, 567 (Tex. 1986) (rule not satisfied by three

days’ posting of petition at courthouse).

Failure to give notice makes the appointment of the receiver voidable, not

void. Johnson v. Barnwell Prod. Co., 391 S.W.2d 776, 785 (Tex. Civ. App.—

Texarkana 1965, writ ref’d n.r.e.); Helton v. Kimbell, 621 S.W.2d 675, 678 (Tex.

- 34 -

App.—Fort Worth 1981, no writ). Thus, as other courts of appeal have noted, any

question of notice should be raised in a direct attack, such as a motion to vacate the

order of appointment or an appeal. An appeal may be preferable because making a

motion to vacate waives any complaint about the absence of notice. Marion v.

Marion, 205 S.W.2d 426, 429 (Tex. Civ. App.—San Antonio 1947, no writ).

The record fails to show that Appellant ever received notice of the

receivership hearing. Accordingly, she was thereby denied proper due process and

an opportunity to be heard before the receiver was appointed. Thus, the district

court’s Judgment appointing the receiver is VOID, and should be reversed and this

Court order the receiver dismissed from this action.

- 35 -

CONCLUSION AND PRAYER

Based upon the foregoing, it is clear that the district court’s Judgment is

fraught with numerous points of error, all as plainly seen from the face of the

record. The district court was without proper venue to entertain the action before

it, requiring reversal of the Judgment. The Judgment itself and relief entered is

without support in fact or in law, and there is no evidence in the record to support

the relief granted. Accordingly, Appellant prays that this Court reverse the

Judgment in its entirety and remand the matter with instructions that the

receivership is vacated and that all further proceedings must be transferred to

Williamson County, Texas, where Appellant would be permitted to answer or

otherwise plead to Appellee’s claims; that Appellant be awarded her costs incurred

herein, including all reasonable attorney fees incurred as a result of overturning

Appellee’s unwarranted Judgment; and for such other and further relief as may in

the premises be just and equitable.

Respectfully submitted,

THE LEFLER LAW FIRM

1530 Sun City Blvd, Ste 119

Austin, Texas 78633

T (512) 869-2579

F (866) 583-7294

/s/ Sandra M. Lefler

SANDRA M. LEFLER

State Bar No. 12161040

slefler@leflerlegal.com

- 36 -

LEAD COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of June, 2015, Appellant served

Appellee with a true and correct copy of the foregoing Appellant’s First Amended

Brief via electronic filing service to:

Brent Allen Devere

Devere Law Firm

1411 West Avenue, Ste 200

Austin, Texas 78701

bdevere@1411west.com

/s/ Sandra M. Lefler

SANDRA M. LEFLER

- 37 -

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft Word

2013 and contains 8967 words as determined by the computer software word count

function, inclusive of the sections of the document listed in Texas Rule of

Appellate Procedure 9.4(i)(1) that otherwise do not have to be counted.

/s/ Sandra M. Lefler

SANDRA M. LEFLER

- 38 -

APPENDIX

1. Judgment dated July 29, 2014

2. Notice of Judgment returned to District Court Clerk marked “Unclaimed” –

filed September 23, 2014

3. Tex. Prac. & Remedies Code § 15.002

4. Tex. Prac. & Remedies Code § 15.011

5. Tex. R. Civ. Pro. 39

APPENDIX

DOCUMENT 1

DC BK14217

BK14217 PG560

PG560

Disp

Disp Parties:

Filed in

In The

The District Court

Dlsp cede:

!Asp code:. Q./0 /CLS..; Litt

CVD/CLS of Travis

Travis County,

County, Texas

Texas

Redact pgs:

Redaetpg,s:

Clerk 1.);:t1 JUL 2 9 2014

JudgCSSAAL Clerk

..ludge

At

At $

$ 142.4en,_M.

14 2- M.

CAUSE NO. D-I-GN-14-002071 Amelia Rodriguez•Menaza,

RodrIguez•Menta, Clerk

DAVID STERN, IN THE DISTRICT COURT

Plaintiff iS

V.

25e"

2501/JUDICIAL

JUDICIAL DISTRICT

DISTRICT

PAMELA MEHL,

Defendant TRAVIS COUNTY, TEXAS

JUDGMENT FOR TITLE TO REAL ESTATE AND DAMAGES

The hearing on this cause

cause was

washeld

heldon

onJuly

July 29,

29, 2014.

2014.Plaintiff;

Plaintiff, David

DavidStern,

Stern, appeared,

appeared, by

and through counsel

counsel and

and Defendant,

Defendant,Pamela

PamelaMehl,

Mehl,although

althoughduly

duly cited

cited to

to appear

appearby

byfiling

filing an

answer herein,

answer herein, failed

failed to

to file

file an answer

answerwithin

within the

the time

time allowed

allowed by law.

Onthe

I. On

1. theclaim

claimof

ofBreach

Breach of

of Contract,

Contract, the Court finds in favor of Plaintiff,

Plaintiff; David

DavidStern,

Stern, and

against Defendant, Pamela

Pamela Mehl.

Mehl.

On the

2. On the claim

claim of

of Trespass

Trespass to

to Try

Try Title,

Title, the

the Court

Court finds

finds in

in favor of Plaintiff,

Plaintiff, David

David Stern,

Stern, and

against Defendant, Pamela

Pamela Mehl.

Mehl.

15

DC BK14217 PG561

Pursuant to the pleadings and evidence on file, the Court finds and ORDERS as follows:

A. The Court recognizes aa vendor's lien, equitable lien and a deed of trust to secure

Cowl recognizes

assumption for and in favor of David Stern on the Property (The "Property" is otherwise known

as , Georgetown, Texas 78626, Williamson County along with all improvements

and mobile homes, and is further

thither described on Exhibit I attached herein) by virtue of David

Stern's prior 50% conveyance of the Property to Pamela Mehl.

B. The Court hereby awards David Stern judgment for title and possession of 50% of

the Property based on a rescission of the prior conveyance under document #2013063557 of the

Williamson County Real Property Records.

C. The Court further awards David Stern actual damages against Pamela Mehl in the

amount of $20,000.00 (Twenty Thousand and 00/100 Dollars).

D. The Court awards David Stern, attorneys' fees in the amount of $2,500.00 (Two

Thousand Five Hundred and 00/100 Dollars), against Defendant, Pamela Mehl.

E. Plaintiff, David Stern, is entitled to post judgment interest on the total amount of

the judgment awarded hereinabove, at the rate of 5% per annum from the date this judgment is

signed until paid.

F. Costs are hereby taxed against Defendant, Pamela Mehl.

G. Plaintiff, David Stern, has a right to the Property, and the Property is in danger of

being materially injured, thus requiring the appointment of a receiver. The Court appoints Nancy

Perry as receiver. Receiver shall take an oath swearing to perform the duties of receiver

faithfully,

faithfidly, and receiver shall post a $200.00 (Two Hundred and 00/100 Dollars) bond that shall

be conditioned on faithful discharge of duties as receiver and obedience to the orders of the

Court. Receiver shall be vested with the powers to take charge and keep possession of the

2

16

DC 8K14217 PG662

PG562

Property, receive

Property, receive rents,

rents, and

and sell

sell the

the Property

Property and

and hire

hire real

real estate

estate brokers and other agents

agents to

to sell

the Property, with

withsuch

such sale

sale being

being subject

subject to

toCourt

Courtapproval.

approval The

The rent

rent and

and sale

sale proceeds shall be

used to pay all valid

used valid secured

secured liens on the property and property taxes

taxes due

due plus

plus payment

paymentof

of all

all

amounts due

due under

under this

this judgment,

judgment, with the remaining

with the remaining proceeds,

proceeds, if any, being

if any, being paid

paid 50150

50/50 to

Plaintiffand

Plaintiff andDefendant.

Defendant.The

Thereceiver

receivershall

shallbe

be entitled

entitledto

tocompensation

compensation at

at $175.00

$175.00 an hour and

reimbursement of

reimbursement of reasonable

reasonable and necessary

necessary expenses,

expenses,after

afterapplication

application to

to and

and approval

approval by the

Court for

Court forsuch

suchfees

feesand

andexpenses.

expenses. Receiver's

Receiver's fees

fees and

and expenses

expenses shall

shall be

be taxed

taxed as

as costs.

IT IS

IT IS FURTHER

FURTHERORDERED

ORDEREDthat

thatPlaintiff,

Plaintiff,David

DavidStern,

Stern,may

mayrecord

record this

this order

order in

in the

the real

property records

property records as

as evidence

evidence of

of ownership

ownership of the Property, and

and is

is entitled

entitled to enforce this

judgment through

judgment through abstract,

abstract, execution

execution and

and any

any other

other process

process necessary,

necessary, and

andall

all writs

writs and

processes for

processes for the

the enforcement

enforcement and

and collection of this

collection of this judgment

judgment and

and costs

costs may issue.

IT IS

IT IS FURTHER

FURTHERORDERED

ORDEREDthat

that this

this is

is aa final

final judgment

judgment and finally disposes of

finally disposes of all

all

parties and all claims

claims and

and is

is appealable.

appealable.

ath.

SIGNED this the 1 day

day of July, 2014.

ofJuly,

DISTRICT)

TJ 1IGE

DISTRICIA GEPRESIDING

PRESIDING

Approved as to Form:

3

17

DC BK14217 PG563

Brent A. Devere

SBN#00789256

1411 West Avenue, Suite #200

Austin, Texas 78701

Ph: 512-457-8080

Fax: 512-457-8060

Attorney for David Stern

4

18

DC BK14217 PG564

EXHIBITI I

EXHIBIT

19

DC BK14217 PG565

12-12209-hcrn Doc#124-2

1242209-hem 05/22/13 16:33:15

Doc#124-2 Filed 05/22/13 Entered 05/22113 16:33:15 Exhibit Pg 7 of 34

Special Warranty Deed

Notice of confidentiality rights: If you are a natural person, you may remove or strike any

or all of the following information from any instrument that transfers an interest in real

property before it is filed for record in the public records: your Social Security number or

your driver's license number.

Date: May 3, 2013

Grantor: David Stern

Grantor's Mailing Address:

Lty

LtIf /4t,)&61

J()&- c-e-si

-e-S, eA

elk.

quo

00 4

Lis—

Grantee: Pamela Mehl

Grantee's Mailing Address:

Georgetown, Texas

Williamson County

Consideration:

A settlement agreement in a bankruptcy case style In •Re:

.Re: Pamela Christina Meld, filed

under Case

Case No.

No. 12-12209

1212209 in the Western

Western District

Districtof

ofTexas,

Texas,Austin

AustinDivision,

Division,and

andten

tendollars

dollarsand

and •

other valuable consideration paid by Grantee, and Grantee's assumption of the unpaid principal

and earned interest on the note in the original principal sum of Two Hundred Fifty-six Thousand

Two Hundred dollars ($256,200.00)

($256,200,00) dated August 11, 2004, executed by David Stem, and

payable to the order of IndyMac Bank, F.S.B.. The note is secured by a vendor's lien retained in

a deed dated August 11, 2004, to David Stern and Pamela Meld,

Mehl, and additionally secured by a

tntst dated August 11, 2004, from David Stern and Pamela Meld

deed of trust Mehl to Charles A. Brown,

Trustee, recorded in clerk's filo

file number 2004064127 of the official public records of real

20

DC BK14217 PG566

12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 16:33:15 Exhibit Pg 8 of 34

property of Williamson County, Texas. Grantee agrees to indemnify and hold Grantor harmless

from payment of the note and from performance of Grantor's obligations specified in the

instruments securing payment of the note. Grantor assigns to Grantee the casualty insurance

policy on the property, all utility deposits for utility service at the property, and all funds held in

escrow for payment of taxes and insurance premiums.

Property (including any improvements):

The legal description is attached hereto and incorporated herein for all purposes

Reservations from Conveyance and Exceptions to Conveyance and Warranty:

Grantor reserves no interest in any oil, gas, and other minerals in and under and that may

be produced from the property.

This deed is subject to all easements, restrictions, conditions, covenants, and other

instruments of record.

Grantor, for the consideration and subject to the reservations from conveyance and

exceptions to conveyance and warranty, grants, sells, and conveys to Grantee all of Grantor's

interest in the property, together with all and singular the rights and appurtenances thereto in any

-way belonging, to have and hold it to Grantee and Grantee's heirs, successors, and assigns

forever. Grantor binds

binds Grantor

Grantor and Grantor's heirs

and Grantor's heirs and

and successors

successors to

to warrant and forever defend

all

alt and singular the property to Grantee and Grantee's heirs, successors, and assigns against

every person whomsoever lawfully claiming or to claim the same or any part thereof when the

claim is by, through, or under Grantor but not otherwise, except as to the reservations from

conveyance and exceptions to conveyance and warranty.

When the context requires, singular nouns and pronouns include the plural.

Grantee assumes all ad valorem taxes due on the property for the current year.

21

DC BK14217PG567

BK14217 PG567

12-12209-hcm Doc#124-2Filed

1242209-hem Doc#124-2 Filed05/22/13

05/22/13Entered

Entered05122/13

05/22/13 16:33:15 Exhibit Pg 9 of 34

avid

This instrument was prepared

prepared based

based on

on information

information

furnished by the parties, and

and no independent title

no independent title

search has

has been

been made.

made.

STATE OF

STATE OF Cs a.

6 140 r,-r 1111

/as A--.)

COUNTY OF 1_45 A -)Q_L f

This instrument was acknowledged before me on 3.4, 2 -1 2'7 (-7

2-41( (-3 by David

• — - .....

Stern.

Stern CHUCK JIROJIROMURAYAMA

MURAYAMA

Commission# #1990849

CommissIou 1990849

Notary Public--Califotnla

Notary Public California

Los Angeles County

Angeles County at

.)-1

11

,...

Comm

My ...Comm.

......ExTires0cl!,!018Notary

Expires Oct 9, 2016 t Pub

PREPARED IN THE OFFICE OF: AFTER RECORDING RETURN TO:

0

0 H.H.

Bryan

BryanHicks,

Hicks,PLC

PLC Pamela Mehl

901 2nd St.

Marble Falls,

Falls, TX

TX 78654 Georgetown, Texas

Tel: (830) 693-2165

Fax: (830) 693-8185

22

DC BK14217 PG568

BK14217 PG568

12-12209-hem Claim#5

12-12209- horn PartPart

Claim#5 2 Filed 10131112

2 Filed Exhibit

10/31/12 PagePage

Exhibit 27 of27

34 of 34

Alt

Allthat

Oworigin

cantotract

tractcea panel

purd of (gland

WS situated inA Wilharnion

Willidoon coon%

Vow%Teas, Testa oc." 1110 'Ohm Berry

oulorthehotin BerriSurveY,

Stag,

Abalract No.

Abstract No.SISImai

andtha 3. Carew

theM.)4,1. Sorrey,Aboaa

Duds Surrey, Midi act No.

No. 246

244 endnod bolni

balm thathat Tact

Tr ad 1 cowrie/toto

I arrayed

Raymond

Raymond A. A. Moon by Eireninty

Warmly Deed Deeddated

dated August 30,1913 usd

Aupud 30,1413 modreturded

retardedin in Volt ma1231,

Volume 12.31,

PepPiga

233 233

of of

Official Record,

the CHIleial of Willismaor

Roads of Williarroot County

Countygod

godckacribod

dtscribedby

bymetal

nista grad bound. u

and bounds es RAMC

fotlmrc

•

okra NRK) 14 uanerrIron

BUOINNMO ironpipe

pipefence cornar pod

tone comer partinInthe

theNorth

Northlint

lintof

of Oran

Oroyal-ana

Lana Par fortathe Sootily:4041w

Southeast comer of .

o$

that tact

this tactdostrixel

daroabedinina Warranty

a WattanlyDeedDeedto lc Debby

Debby JutJana

:Wryitchy recorded

recorded in Volume

in Voiu mo 730,730,PasoPap77377) of the

or the

Williamson County

Williamson CountyMadDad Records

Remoldsbeing

beingMathe Southeast corge ofofsaid

Southeast coroe'r midMoors

Moor. TvSt act

us 1I and

and this

this ma;

trar.t;

, ••

THIENCV.: S71'

MNGE: S 7)* 36'

36' 14"

14"W W 176.76

17606fa* foewith

OAthetheNorth

NorthIrDc

OneofofOros

Orme Lane

LemtotoictatImo

Ironpin

pinround

foundforfathe

At

Scxdhetst

Scythe caorrwr

ad coma of of

tbatbat Tract

Tract 1111as as described

described in said

in said Moor,

Motor WerraelyDeed

Worrenly Used for the

for Scrothwcstcoma

the Southwtst camofof

saidTract

sad Tract11and

andthis

this and;

tact;

IHENCR:

THENCE:1.11b

withtits

thecommon

046141011linHat

• ofofsaid 'Tract

rid 'hut 1 And Tract11,N

1 andTract 11; N0*

tr 03'

0)' 07" W 431.03 foe*

fool to

lo an lionpin

.nlwn pin

frond and

found 3416'

and N 16'53'

33'47"

47" WW 43/.44

436.43to to to

anbon

Ironpin

pinfound

foundfor

forthe

OaNorthust

Northeutcoma

coma of

of said

said Tract J1 andaing

ft and bring

the 14c4thweert cornetofofaaid

Northwest coma sad Tula rued 0.1.1

Tract11and tract;

this !rut

'1113a1C35; with the

'TKENCIP. with the PlarA

North One

line ofat said Tract1,

aid Tact

I) N11

It'71'

13'13'

14" 14"

E t~ 31331114

31331 fret totouLa bon ptracam4,

hoopla found,

2) N -Fr 11'

2) 37" R

Id' S7" II 182.11

183.11 feat feet to asiron

o in ironpin

pinfound,

found,

73' IS' 0"

3) N 73

3) 45"811 40.01feet

60.01 rant10 an lien

IQ in Iron On

pia round.

found,

4) N 61'29'

4) 61` 29'11"1 1E." 90.11

g 90.11feat to to

fart sosohart

konpinpin

fouosd

foundFs

intiro

the Watt

Wet IlDe saidlachy

line of old tractrot

lathy via the

for Os

COITili of mid

Nor*calt comer

Nottaat odd Tract

Traci1I and

and Odaabettract;

KW;

TKENt't

THENCE. :Jong the'Wett

don; tho'Weafine of of

I1PC laidsed

holly

haw tract

tratand

andtheMePast Env of

Ella11111 of mid

said firaca.

tea

1) S

1) S 12.

12431' 30" EE370.14

321 343" 37034 feet to te tt iron

iron pin

pin kuncl,

fond,

1)

2) SS10'5N23'

23'7.5"

1.1"EEl341.191=1

141.19 fed to to artbon

anion pie piAfound,

found,'•

3) S £3'40'

3) 40'44"

44"EE195.19

195.19feelfacttotothe

lb°plus

platyofofBeibining

csir\n‘nisand

andcantata:1g

contain/417.23

17.23 aver

ecru heal.

of land.

RECORDERS

RECORDERS MEMORANDUM

MEMORANDUM

All

All or parts Drill.

or parts of the text on this page was

for satisfactory

not clearly legible for satisfactory

recordation

Exhibit ""

Exhibit

111

23

23

DC BK14217

BKI4217 PG569

12-12209-hcm Claim#5

12-12209-hcm Claim#5 -Part

-Part 2 Filed

2 Filed 10/31/12

10/31112 Exhibit

Exhibit PagePage

28 of28

34 of 34

AII

Allthat

that cal Oh mice

calsin or perml

UM/ Of parcelofoftenci

lend,accused

situldoiininWilliriurson

Willitunon County, Taw,out

County, Too; outofefttheJohn

JohnBerry

Berry Survey,

Survey,

So. SISiand

Abstract 14o. andbeing

beingthat

thatTtact

To UUwere*

annoyed to Raymond

to 3itywroo4 A. A. Mom

Mum bybyWirststiy

WarrantyDeer:161ml

Dad doted August

30, 1415

1965 sod recorded

recordedininVolume

Volume 1236,

1231, Pate

Rage2323SSofofthe

the°MVO

OflisidRecords

RecordsofofWilliamson

WilliamsonCountyCountymild

and •

de:scribtdisy

deterited 1)), metes

moo and bounds is asfollows:

follows:

BEGINNING

BEGINNINGuatananIron iconpin

pinfound

foundininthe

the Noah

NorthEno

LinoofofGrove

Oro 'c Lane

1-61,4 foe

far Al

aftSoutheast

S001411; 031110

corner of'Atha teem

that boot

described In a Warr

described to Warranty

nmy Deed

Died totoliJelattrd

Richard A.A. Mites,

Miles,es

c4tins

toydated

datedNovember

NovemberI,I,1914

1964and

andtoo:sided

recorded in

in Votonto

vaturno

109.5, Pest 933

1093, Page 933 of

of said

said ofitelal

ofiteialretards,

words, being the SSouthwest

autirwat comer

comerof of said Mooretract

Kid Moors trap and this hid;

Ind;

THENCE.14N19.29'

THENCE.. li• 29' 00"

00" W W 194.76

194.745

feetfeewith

withthe VIcatlino

theWest linoofofSaid

said144Xee

Maxi tract,

track,being

beingthe ()alioof

thebasis of

bitiriAp

bearingstiled

citedhereon.

hereon,totoenaniron

ironpin

pinfound

foundfor forthe

theNortheast

Northeast miner

corner ofof ea Miles

geld Wes tract

wad Iteitti. the Nocifrwest

being tha Northwest

comet ofofslid

soma },lours end

PM].Loose utd ad'

thistract

trot;

'MENGE'

TifRNCE• N 71' 7 1 - 24' 33"

33" EE 537.19

857,19feet

feettotoen

aniron

Ironpin

pinfound

foundfor

forthe

theNorthwest

Notriteso coma

{cots of that Traci

Tract 1 as

dmeTibed In the

described in the aforementioned

aforementioned Moore WarrantyRoad

MooreWarranty Deedbeing

beingthe

theNortheast

Northeast corner

corner of said

of said Moore

Moore Twill

Tract 11

end this tract;

ond

771

THENCE:

E8CE:along

al"8thethecommon

commontins

lintofOrlaid

mud'Tract

TreatI and Tract 11, S Id* sr

and Trace 53' 47" E 431.43

436,43 fact

fart to an Iron

iron pin

Ccurtd, sari S 0'03'

found, and 0`03' 07"

07" 5E431,03

411,03feet

!Ditto an iron

to Jan pinfound

ironpin found in

in the Northtins

the Neale lineofofail

said Grovo Lane for the

d Grovo

comet

Southwest cum ofofsaid

said Traci1 IarsStroins

Tract and beingthe

theSoutheast corm of said

Southeasteons Tri‘i tI11144

viia Trot IM this

distract;

Wet;

THENCE: 71'14'

THENCE; S 71' 14'02" W699,68

02"W 6908 fistfeet

to the

to place of Begirmins

the pine and conlainin$

of Be8inties 16.6716.67 atrea

end CGX111:1Tt14$ or WEL

etre-1°14nd.

- • • - -----

RECORDERS

RECORDERSMEMORANDUM MEMORANDUM

All or parts ofof the

the text

texton

onthis

thispage

pagewas

was

not clearly

dearly legible for satisfactory

for satisfactory

rtrontatirm

rroortiatim

a

Exhibit "

FILED AND RECORDED

OFFICIAL PUBLIC

PUBLIC RECORDS 2004064127

RECORDS 2004064127

C.1111AN.

O8/13/2004 12:55

08113/2004 12:S8 P11

PM

ALLEN

ALLEN$$60.00

50 .00

NANCY E. RIS

RISTER,

TER , COUNTY

COUNTY CLERK

CLERK

UILLIAMS0N

UILLIAMSoN COUNTY,

COUNTY, TEXAS

TEXAS

•

t. •

24

DC BK14217 PG570

BK14217 PG570

1111111111 11111111111111111E11111111111 2009086302

CAD No.

CAD No.Rn39021

Rfal

Notice of

Notice ofConfidentiality

Confidentialityrights:

rights: If you

if you areare a natural

a natural person,

person, yon you

maymay remove

remove or strike

or strike any ofany

the of the

followinginformation

following Information from

from this

this Instrument

Instrument before

before it is it is filed

filed for record

for record In theinpublic

the public records:

records: your your

social securitynumber

social security numberoror your

your driver's

driver's license

license number.

number.

GENERALWARRANTY

GENERAL WARRANTYDEED

DEED

DATE:

DATE: November 14,

November 14, 2006

2006

GRANTOR:Linda

GRANTOR: Linda Moore,

Moore, a/k/a

a/k/a Linda

Linda R. Moore,

IL Moore, Individually,

Individually. and asand as Independent

Independent Executrix

EXCGUtriX of the of the Estate

Estate of of

RaymondA,

Raymond A.Moore,

Moore,deceased,

deceased,Kathy

Kathy Moore,

Moore, andand Randy

Randy Moore

Moore

GRANTOR'SMAILING

GRANTOR'S MAILINGADDRESS:

ADDRESS:

GRANTEE:David

GRANTEE: DavidR.R.Stem

Stern and

and Pamela

Pamela C. C. Mehl

Mehl

GRANTEE'SMAILING

GRANTEE'S MAILINGADDRESS:

ADDRES ne, Georgetown,

Georgetown, Williamson

Williamson County,

County, TexasTexas

71162678626

CONSIDERATION:

CONSIDERATION:

$10.00 and other

$10.00 and othervaluable

valuableconsideration,

consideration, receipt

receipt of of which

which Is hereby

Is hereby acknowledged,

acknowledged, andthe

and for forpayment

the payment of which

of which no no

lien, either

Lien eitherexpress

expressororImplied,

implied,is is herein

herein retained.

retained.

PROPERTY(including

PROPERTY (includingImprovements):

Improvements):

FEE SIMPLE

FEE SIMPLETITLE TITLEininand andtotothethe perimeter

perimeter description

description of a of

35afoot

35 foot

widewide

road mad containing

containing 5.115 5.115

acres, acres,

approximatelyant-hair

approximately one-halfbeing

being inin the

the M.J. GarciaSurvey,

Mi. Garcia Survey,Abstract

AbstractNo.No. 246,

246, endand one-half

one-half In John

in the DenyDerry

the John Survey,Survey,

AbstractNo.

Abstract No.51,

51,In WilliamsonCounty,

In Williamson County,Texas,

Texas,

andand being

being a part

a pert of8520

of an attetract

an 8520

acre Pittconveyed

conveyedtotoCharles

CharlesPenzler,

Penzler,

tt ux,

et of record

ox, of recordininVolume

Volume420,

420,Page

Page86,86,Deed

Deed Records

Records of Williamson

of Williamson Texas.

County,

County, Texas, and containing

containingall

allofof435

a 35foot

foot

ell shaped

ell shapedstrip

stripdescribed

describedin in a deed

a deed fromfrom

EtnaEtna M. Lindell

M. Lindell and

and A. A. William

William LindellLindell to Charles

to Charles Peneler,railer, dated

dated July 23,July 23,

1968, and

and recorded

recordedIn InVolume

Volume509,509,Page

Page341,

341, Deed

Deed Records

Records of Wit/Lamson

of Williamson County,

County, Texas;Texas; said

said 3S 15road

foot foot being

mad being

more particularly

more particularlydescribed

described

byby metes

metes andand bounds

bounds as follows:

as follows..

BEGINNINGatatthe

BEGINNING thelower

lowerSouthwest

Southwest comer

corner of of

thethe

saidsaid ell shaped

ell shaped stripstrip in North

In the the North lino

line of of County

County Road Road 152, also

152, also

beingthe

being thelower

lowerSouthwest

Southwestcorner

corner

of of a 139.17

a 139.17 acreacre

tracttract described

described in a deed

in a deed to Etna

to Etna MillerMiller end Laura

and Laura Miller,Miller,

dated dared

October of

October of1957;

1957;

'THENCENorth

THENCE North1919degrees

degrees0808 minutes

minutes West

West 66937

669.37 feetfeel to an

to an ell corner

ell corner of the

of the 139,17

139,17 acresacres andellancomer

and an of saidof said

ell comer

tri shaped

ell shapedstrip;

strip;

THENCESouth

THENCE South7171degrees

degrees2020minutes

minutes

3535seconds West

seconds West2527.08

2527.08reel feettotoa apoint

pointononoror near

near thethe upper

upper Southwest

Southwest

cornerofofthe

corner the139.17

139.17acres

acres and

and thethe upper

upper Southwest

Southwest corner

corner of theofalt

theshaped

ell shaped

strip;strip;

THENCE 71

THENCE 71degrees

degrees17 17minutes

minutesWest

West859.01

859.01feet

feet end

and South

South 7171 degrees

degrees 18 18 minutes

minutes 40 seconds

40 seconds WestWest 900,57

900.57 feet feet

with the

with the South

Southline

linoofofthe

thesaid

said85.20

85.20 eery

acre tract,

true as fenced,

as fenced, to antoIron

an iron pinatset

pin set theatSoutheast

the Southeast

cornercorner of a acre

of a 9.983 9.983 acre

vest;

trete

Qtl

exki t51a--r 'c'

25

DC BK14217 PG571

P0571

THENCE

THENCESouth

South7070degrees

degrees57

57minutes

minutes 3030seconds

secondsWest

West100.0

100.0feet

feetandandSouth it degrees

South 32 minutes

71 degrees 40 seconds

32 minutes 40 seconds

West

West 417.53

417.53 feet

feet with

withthetheSouth

Southline

lineofofthe

the85.20

85.20acres

acresand

andthethe

South

Southlineline

of the 9.983

of the acresacres

9.9133 to antoiron pin set

an pin

ironset et

et the

the

Southeast

Southeastcorner

cornerofofa a16.867

16.867acre

acretract;

tract;

THENCE

THENCENorth North1919degrees

degrees0000minutes

minutes4545

seconds West

seconds at 35

West feetfeet

at 35 an iron

pestpast pin on

an iron pinline, continuing

on line, in ail in

continuing 554.29

all 554.29

feel

feet with

with the

thecommon

commonlinelinebetween

betweenthe 16.867

the acre

16.867 Indtact

acre andand

the the

9.983 acreacre

9.983 tracttract

to antoiron

an pin

ironset beside

pin a fencea fence

set beside

corner

cornerpost;

post;

THENCE

THENCENorthNonh2727degrees

degrees3737minutes

minutes4040seconds West

seconds West74.92 to to

74.92 anan

ironiron

pinpin

set in

setthe

in common

the commonline between the the

line between

16.867 AGM

acres and

andthe

the9.983

9.983acres,

acres,and continuing

and continuingwith the the

with same tineline

same in ailin144.54 feet feet

all 144.54 to a to

point on curve

a point with awith a

on curve

radius

radiusof

of80.59;

80.59;

THENCE

THENCEwith withthe

thearc

arcofofthe curve

the to to

curve thethe

right, the the

tight, chard bearsbears

chord SouthSouth

54 degrees 19 minutes

54 degrees East 77.92

19 minutes East feet

77.92to feet

the to the

end

end of

of the

thecurve;

curve;

THENCE

THENCESouth

South27

27degrees

degrees3737minutes

minutes4040

seconds East

seconds 77.55

East feetfeet

77.55 to atopoint;

a point;

THENCE

THENCESouth

South19

19degrees

degrees0000minutes

minutes4545

seconds East

seconds 523.23

East feetfeet

522.28 to atopoint;

a point;

THENCE

THENCENorthNorth7171degrees

degrees 3232minutes

minutes 4040seconds

secondsEast

Fast382.69 feetfeet

382.69 endand

North 70 degrees

North 57 minutes

70 degrees 30 seconds

57 minutes 30 seconds

East

East 99.94

99.94 feet

feetto

tothe

theEast

Eastline ofofthethe

line said 9.983

said Isere

9.983 tract;

acre tract:

THENCE

THENCENorth North7171degrees

degrees1818minutes

minutes4040

seconds East

seconds 900.67

East feetfeet

900.67 andand

North 71 degrees

North 17 minutes

71 degrees East 859.02

17 minutes East 859.02

feet to

to aa point

pointon

onorornear

nearthethe

common lineline

common between thethe

between 85.20 acres

85.20 and and

acres the 139.17 acres;acres;

the 139.17

THENCE

THENCENorth

North7171degrees

degrees2020minutes

minutesEast 2561.53

East feetfeet

2561.53 to the Northwest

to the corner

Northwest of theofell

corner theshaped tract described

ell shaped hi

tract described in

Volume

Volume 509,

509, Page

Page341,

341,Deed

DeedRecords

RecordsofofWiil famson County,

Williamson County, Texas;

Texas;

THENCE

THENCESouth South1919degrees

degrees0909minutes

minutes2020seconds East

seconds 704.70

Fast feet

704.70 toto

feet thethe

Southeast tome

Southeast of theofellthe

corner shaped tract tract

eil shaped

and

and to

to the

theMinh

Northline

lineofofCounty

CountyRoad

Road152;

152;

THENCE

THENCESouth

South71

71degrees

degrees0808minutes

minutes2020

seconds West

seconds 35.0

West feetfeet

35.0 with thethe

with North line line

North of County RoadRoad

of County 152, to theto the

152,

POINT

This text is long and has been trimmed here. Open the source document for the complete record.