# Pamela Mehl v. David Stern > Texas Court of Appeals, 3rd District (Austin) · June 22, 2015 URL: https://www.frixlaw.com/law-library/cases/4068690 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** June 22, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4068690 ## Opinion text 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 POINTOF OFBEGINNING. BEGINNING. RESERVATIONS RESERVATIONSFROM FROMAND ANDEXCEPTIONS EXCEPTIONSTOTO CONVEYANCE AND CONVEYANCE WARRANTY: AND WARRANTY: conveyance Is This conveyance Ismade madeand accepted acceptedsubject subjectto: to:I)1) allall restrictions, covenants, restrictions, conditions, covenants, rights-of-way conditions, and and rights-of-way assessments assessmentsififany, arty,affecting affectingthethe above-described above-described property alas that property are valid, existing are valid, and properly existing of record; and properly 2) ail 2) all of record; easements, easements,including includingspecifically specificallybut without but withoutlimitation anyany limitation access, ingress access, and and ingress egress, or other egress, easement or other granted easement to granted to any any other otherperson personfor forthe useuse the ofof thethe subject road; subject andand road; 3) to3)taxes for the to taxes foryear the 2007 and subsequent year 2007 years. years. and subsequent Grantor, Grantor,for forthe theconsideration consideration andandsubject to the subject to reservations the reservations front from and exceptions to conveyance and exceptions and and to conveyance warranty, warranty,grants, grants, sells sells and andconveys conveys to to Grantee the the Grantee property, property,together with all together andallsingular with the rights and singular theand rights and appurtenances appurtenancesthereto thereto in in anywise anywise belonging, belonging,to have andand to have to hold it to itGrantee, to hold Grantee's to Grantee, heirs, executors, Grantee's heirs. exceutors, administrators, administrators,successors successors and assigns and assignsforever. Grantor forever. Grantorhereby bindsbinds hereby Grantor and Grantor's Grantor heirs, executors, and Grantor's heirs, ext.-attars, administrators, administrators,successors successors and assigns and to warrant assigns and and to warrant forever defend forever all andallsingular defend the piutmly and singular to Grantee the popcity and to Grantee and Grantee's Grantee'sheirs, heirs,executors executors administrators, administrators, successors and and successors assigns against assigns everyevery against person whomsoever person lawfully whornsoever lawfully claiming claiming or orto toclaim 4Iairn thethe same sameor or anyany panpart thereof, except thereof, as toas except thetoreservations and exceptions the reservations to conveyance and exceptions and and to conveyance warranty. warranty. FILED AND AND RECORDED RECORDED OFFICIAL PUBLIC OFFICIAL PUBLICRECORDS RECORDS 2013063557 2013063557 CR‘.10, 07/0 8/ 2013 02:10 07/08/2013 02:10PMPM ® @ ail 1-04, 1Loile Pic 41--1-0,1, Pt.c. CKASEBERG $40.00 CKASEBERG $40.00 NANCYE. NANCY E. RISTER, RISTER,COUNTY COUNTYCLERK CLERK WILLIAMSON COUNTY, TEXAS WILLIAMSON COUNTY, TEXAS rfulio-tt. 4-Ctita, Tr 1kV ff AMAA-4-U. 26 APPENDIX DOCUMENT 2 Amalie Rodriguez-Mendoza Amelia Rodriguez-Mendoza District Clerk,Travis District Clerk, TravisCounty County Travis County Travis County Courthouse CourthouseComplex Complex P.O. Box Box 679003 679003 Austin, Austin, Texas Texas 78767 78767 DATE: August August05, 05,2014 2014 Filed in The District Court of Travis County, Texas SEP 2 3 2014 2011 MEHL PAMELA MEHL PAMELA At At e,Pc01411 M. Am0:aodriguez-Mendoza, Amt.todriguez-Mendoza, Clerk GEORGETOWN,TXTX78626 GEORGETOWN, 78626 / ,,(6 1/4 JUDGMENTFOR JUDGMENT FORTITLE TITLE TO TO REAL ESTATE`AND REAL ESTATE'' DAMAGES ND DAMAGES D-1-GN-14-00207k0'‘ D-1-GN-14-00207 DAVID STERIa. STERqc VS. VS • ohr PAMELAMR PAMELA mga, IL akeir You are arehereby herebynotified that notified e thattS above order above order has been has signed been and and signed entered JULY entered JULY29TH, 29TH,2014 2014 in kJ:le250TH in 250THJUDICIAL JUDICIAL DISTRICT COURT DISTRICT of of COURT TravisCounty Travis Texas County in thein Texas ab...fa the numbered and entitled abOge numbered cause. and entitled cause. RODRIGUEZ-MENDOZ/,‘, AMALIA RODRIGUEZ-MENDOZS1, NIXIE 787 787 SE 1270 SE 1279 0209/19/1 0209/19/144 District Clerk RETURN RETURN TO TO SENDER UNrL AIMED UNCL UNABLE UNABLE TO TO FORWARD BC: 78767900303 8C1 78767900303 * 0893-11822-19-26 IiliI'llii111l~llllll11111111 II Ii l l l ii{ '~ii11i1 I 1111 I 11! 1111 L60 - 000041259 000041259 N. D-1-ON-14-002071 D-I -ON-14-00207 I RT APPENDIX DOCUMENT 3 Texas Civil Practice & Remedies Code - Section 15.002. 15.002. Venue: Venue: General General Rule § 15.002. VENUE: GENERAL RULE. (a) Except as otherwise provided by this subchapter or Subchapter B or C, 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; (2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person; (3) in the county of the defendant's principal office in this state, if the defendant is not a natural person; or (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action. (b) For the convenience of the parties and witnesses and in the interest of justice, a court may transfer an action from a county of proper venue under this subchapter or Subchapter C to any other county of proper venue on motion of a defendant filed and served concurrently with or before the filing of the answer, where the court finds: (1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant's economic and personal hardship; (2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and (3) the transfer of the action would not work an injustice to any other party. (c) A court's ruling or decision to grant or deny a transfer under Subsection (b) is not grounds for appeal or mandamus and is not reversible error. Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 15.001 and amended by Acts 1995, 74th Leg., ch. 138, § 1, eff. Aug. 28, 1995. APPENDIX DOCUMENT 4 Texas Texas Civil Civil Practice Practice&&Remedies RemediesCode Code- Section - Section 15.011. 15.011. Land Land § 15.011. LAND. Actions Actions forforrecovery recoveryofofreal realproperty property or or an an estate or interest estate in real or interest in real property,for property, forpartition partition of of real real property, property, to remove to remove encumbrances encumbrances from from thetotitle the title realto real property, property, for recoveryof for recovery ofdamages damagestotoreal real property, property, orquiet or to to quiet titletitle to real to real property property shall shall be be brought brought in the in the county inwhich county in whichall allorora apart partofof thethe property property is located. is located. Acts 1985, 69th Leg., ch. ch. 959 959 (S.B. (S.B. 797), 797), §2, §2, effective effective September September1,1,1985; 1985;am. am.Acts 1995, 74" 74th Leg., ch. 138 (S.B. (S.B. 32), 32), §2, effective August August28,28,1995. 1995. APPENDIX DOCUMENT 5 Texas Texas Rules Rulesof ofCivil CivilProcedure Procedure3939 RULE 39 RULE 39 JOINDER JOINDEROF OFPERSONS PERSONSNEEDED NEEDEDFOR FOR JUST JUST ADJUDICTATION ADJUDICTATION (a) Persons to Be Joined If Feasible. Feasible. — — A person personwho whoisissubject subjecttotoservice serviceofofprocess process shall shall be joined joined asasaaparty partyininthe theaction actionif (I) if (1) in his in his absence absence complete completerelief relief cannot cannot be accorded be accorded among among those thosealready alreadyparties, parties,oror (2)(2) heheclaims claimsan an interest interest relating relating to thetosubject the subject of theof the action and action andisissososituated situatedthat that thethe disposition disposition of the of the action action in his in absence his absence maymay(i) as(i)a as a practical matter practical matterimpair impair or or impede impede his his ability to protect ability that interest to protect or (ii)or that interest leave (ii) any leaveofany the of the persons already persons alreadyparties partiessubject subjectto to a substantial a substantialriskrisk of incurring double, of incurring multiple, double, or multiple, or otherwise inconsistent otherwise inconsistentobligations obligationsbyby reason reason of of hishis claimed claimed interest. If heIfhas interest. he not has been so so not been joined, the joined, thecourt courtshall shallorder orderthat he he that be be made a party. made If heIfshould a party. join as he should a plaintiff join but but as a plaintiff refuses to refuses tododoso, so,he hemay maybebemademadea adefendant, defendant, or,or, in ainproper a proper case,case, an involuntary an involuntary plaintiff. plaintiff. (b) Determination by Court Whenever Joinder Not Feasible. — If aa person personas asdescribed describedinin subdivision (a)(1) subdivision (a)(1)——(2)(2)hereof hereofcannot cannotbebemademade a party, a party, thethe court court shallshall determine determine whetherwhether in equity equityand andgood goodconscience consciencethe theaction action should should proceed proceedamong amongthe the parties parties before before it, or it, or should be should bedismissed, dismissed,the theabsent absentpersonpersonbeing beingthus regarded thus regardedas indispensable. The factors as indispensable. The factors to be be considered consideredbybythe thecourt court include: include:first, to what first, extent to what a judgment extent a judgmentrendered in the in the rendered person's absence person's absencemight mightbebeprejudicial prejudicial to him to himor those already or those parties; already second, parties; the extent second, the extent to which, which, by by protective protectiveprovisions provisionsinin thethe judgment, judgment, by by the the shaping shaping of relief, of relief, or other or other measures, the measures, theprejudice prejudicecan bebe can lessened lessenedor or avoided; avoided;third, whether third, a judgment whether rendered a judgment rendered in the the person's person'sabsence absencewillwillbebeadequate; adequate; forth, whether forth, the plaintiff whether will have the plaintiff an an will have adequate remedy adequate remedyififthe theaction action is is dismissed dismissed forfor non-joinder. non-joinder. (c) Pleading Reasons Reasons forfor NonjoMder. Nonjoinder. -- A pleading pleading asserting assertinga aclaim claimforfor relief shall relief state shall state the names, the names,ififknown knowntotothe thepleader, pleader, of of anyany persons persons as described as described in subdivision in subdivision (a)(1)(a)(1) — (2)— (2) hereof who hereof whoarearenot notjoined, joined,and and thethe reasons reasonswhywhy theythey are are not not joined. joined. (d) Exception of Class Actions. Actions. — —This This rule ruleisissubject subjecttotothe theprovisions provisions of of Rule Rule 42.42. SOURCE: Federal Federal Rule Rule19, 19,with withtextual textualchange. change. Change by amendment effective effectiveJanuary January 1, 1971: The The rule rulehas hasbeen beencompletely completelyrewritten rewritten to adopt, adopt,with withminor minorchanges, changes,thethe provisions of Federal provisions RuleRule of Federal 19 as 19amended. as amended. PUBLICATION REFERENCES. PUBLICATION REFERENCES. ——See Texas Litigation Guide, Ch. See Ch. 12, 12, Pleading Pleading the the Parties. Parties. See also Civil Practice Practice & & Remedies Remedies Code §§17.001-17.005. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4068690. Public record. Not legal advice.