Eileen K. Starbranch v. Elizabeth Howard Crowell

ACCEPTED

01-15-00429-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/11/2015 12:00:31 PM

CHRISTOPHER PRINE

CLERK

No. 01-15-00429-CV

FILED IN

1st COURT OF APPEALS

In The First District Court of Appeals HOUSTON, TEXAS

Houston, Texas 9/11/2015 12:00:31 PM

CHRISTOPHER A. PRINE

Clerk

Eileen K. Starbranch,

Appellant,

v.

Elizabeth Howard Crowell,

Appellee.

On Appeal from the 55th Judicial District Court

Harris County, Texas

Cause No. 2013-14192

BRIEF OF APPELLANT

Nelson S. Ebaugh

NELSON S. EBAUGH, P.C.

2777 Allen Parkway, Ste. 1000

Houston, Texas 77019

Tel. (713) 752-0700

Fax (713) 739-0500

nebaugh@ebaughlaw.com

Texas Bar Card No. 24007139

ATTORNEY FOR APPELLANT

Oral Argument Requested

IDENTITY OF PARTIES AND COUNSEL

Appellant: Eileen K. Starbranch

Trial and Appellate Counsel Nelson S. Ebaugh

for Appellant: NELSON S. EBAUGH, P.C.

2777 Allen Parkway, Ste. 1000

Houston, Texas 77019

Appellee: Elizabeth Howard Crowell

Trial and Appellate Counsel John B. Shely

for Appellee: Courtney B. Glaser

ANDREWS KURTH, LLP

600 Travis, Suite 4200

Houston, TX 77002

i

TABLE OF CONTENTS

Page

Identity of Parties and Counsel ............................................................................. i

Index of Authorities ..............................................................................................v

Statement of the Case.......................................................................................... xi

Issue Presented ................................................................................................... xii

Statement of the Facts ...........................................................................................1

A. Overview ..................................................................................................1

B. The parties and their relationships ...........................................................1

C. Neighbors ask Starbranch to execute signature pages for the

Association ...............................................................................................3

D. Crowell files suit ......................................................................................4

E. Termination of the Association in 2013...................................................5

F. The trial court grants Crowell’s Motion for Summary Judgment

on Attorney’s Fees against Starbranch ....................................................7

G. The trial court grants Starbranch’s motion to dismiss Crowell’s

action for declaratory judgment as moot .............................................. 12

H. Order and Final Judgment leads to this appeal ..................................... 12

Summary of Argument ...................................................................................... 14

Argument............................................................................................................ 16

A. The Declaratory Judgments Act cannot be used as a vehicle to

obtain otherwise impermissible attorneys’ fees .................................... 17

ii

B. The trial court improperly usurped the jury’s fact-finding role

during a summary-judgment proceeding .............................................. 21

C. The attorneys’ fees are neither equitable nor just ................................. 25

1. The trial court awarded attorneys’ fees before it even declared

the representative rights and interests of Crowell and

Starbranch ........................................................................................ 26

2. It is inequitable and unjust to award attorneys’ fees against a

person who was not even a proper party to the declaratory

judgment action ................................................................................ 29

3. There is no evidence that Starbranch prolonged the case or

prevented a complete and final resolution to this case .................... 33

D. The summary judgment evidence raised genuine issues of

material fact ........................................................................................... 36

1. The affidavit of Nelson S. Ebaugh raised genuine issues of

material fact...................................................................................... 37

2. The affidavit of Eileen K. Starbranch raised genuine issues of

material fact...................................................................................... 39

3. Genuine issues of material fact necessarily existed because the

trial court sustained Starbranch’s objections to Crowell’s

failure to segregate ........................................................................... 40

4. Crowell’s own evidence established the existence of genuine

issues of material fact....................................................................... 42

E. The trial court abused its discretion by considering evidence filed

after the submission date and which Starbranch did not have the

opportunity to controvert ...................................................................... 43

F. The trial court granted more relief than was requested in

Crowell’s Motion for Summary Judgment on Attorneys’ Fees............ 46

Conclusion and Prayer ....................................................................................... 49

iii

Certificate of Compliance .................................................................................. 51

Certificate of Service ......................................................................................... 51

Appendix ............................................................................................................ 52

iv

INDEX OF AUTHORITIES

Page

Cases

Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston,

No. 14–13–00722–CV, 2015 WL 778487, *12

(Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) .......................... 24

Almaguer v. Jenkins,

882 S.W.2d 903, 904

(Tex. App.—Corpus Christi 1994, no writ).................................................. 22

AMX Enters., L.L.P. v. Master Realty Corp.,

283 S.W.3d 506

(Tex. App.—Fort Worth 2009, no pet.) ........................................................ 41

Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd.,

249 S.W.3d 380 (Tex. 2008) ........................................................................ 34

Armbruster v. Memorial Southwest Hosp.,

857 S.W.2d 938

(Tex. App.—Houston [1st Dist.] 1993, no writ) .......................................... 42

Beavers v. Goose Creek Consol. I.S.D.,

884 S.W.2d 932, 935

(Tex. App.—Waco, 1994, writ denied) ........................................................ 43

Bocquet v. Herring,

972 S.W.2d 19 (Tex. 1998)............................................. 22, 23, 25, 26, 35, 37

Bonham State Bank v. Beadle,

907 S.W.2d 465 (Tex. 1995) ........................................................................ 32

Ca Partners v. Spears,

274 S.W.3d 51, 81

(Tex. App.—Houston [14th Dist.] 2008, pet. denied) .................................. 40

Caldwell v. Carrollton Air Conditioning, Inc.,

No. 07-05-0241-CV, 2007 WL 2390425 *6

(Tex. App.—Amarillo Aug. 22, 2007, pet. denied) (mem. op.) ................... 43

v

Carpenter v. Cimarron Hydrocarbons Corp.,

98 S.W.3d 682 (Tex. 2002)..................................................................... 43, 48

City of Carrollton v. RIHR Inc.,

308 S.W.3d 444

(Tex. App.—Dallas 2010, pet. denied) ......................................................... 27

Crown Asset Management, LLC v. Short,

No. 01-08-00042-CV, 2009 WL 1025729

(Tex. App.—Houston [1st Dist.] Apr. 16, 2009, no pet.)

(mem. op.) ................................................................................................. 28, 35

Engel v. Pettit,

713 S.W.2d 770, 771-73

(Tex. App.—Houston [14th Dist.] 1986, no writ) ........................................ 38

Extended Servs. Program, Inc. v. First Extended Serv. Corp.,

601 S.W.2d 469

(Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) .......................................... 46

Fuqua v. Oncor Elec. Delivery Co.,

315 S.W.3d 552, 559-60

(Tex. App.—Eastland 2010, pet. denied) ................................................ 21, 22

Garland v. Dallas Morning News,

22 S.W.3d 351, 367 (Tex.2000) ................................................................... 22

General Elec. Supply Co. v. Gulf Electroquip, Inc.,

857 S.W.2d 591

(Tex. App.—Houston [1st Dist.] 1993, writ denied) .............................. 23, 36

Goldman v. Olmstead,

414 S.W.3d 346

(Tex. App.—Dallas 2013, pet. denied) ......................................................... 40

Guity v. C.C.I. Enter., Co.,

54 S.W.3d 526

(Tex. App.—Houston [1st Dist.] 2001, no pet.) ........................................... 36

vi

Hahn v. Love,

321 S.W.3d 517

(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 19

Highland Capital Mgmt., L.P. v. Ryder Scott Co.,

402 S.W.3d 719

(Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 47

Hourani v. Katzen,

305 S.W.3d 239

(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 49

Jay Petroleum, L.L.C. v. EOG Res., Inc.,

332 S.W.3d 534

(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 36

Kennesaw Life & Accident Ins. Co. v. Goss,

694 S.W.2d 115

(Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) ..................... 27, 32

LaGoye v. Victoria Wood Condo Ass’n,

112 S.W.3d 777

(Tex. App.—Houston [14th Dist.] 2003, no pet.)......................................... 49

MBM Fin. Corp. v. Woodlands Operating Co.,

292 S.W.3d 660 (Tex. 2009) ........................................................................ 17

McConnell v. Southside Indep. Sch. Dist.,

858 S.W.2d 377 (Tex. 1993) .................................................................. 46, 47

McGlown v. Ashford Park Homeowners Asso’, Inc.,

No. 01-08-00619-CV, 2009 WL 1635310

(Tex. App.—Houston [1st Dist.] Jun. 11, 2009, no pet.)

(mem. op.) ............................................................................................... 24, 25

Mortg. Elec. Registration Sys., Inc. v. Groves,

No. 14-10-00090-CV, 2011 WL 1364070

(Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied)

(mem. op.) ..................................................................................................... 19

vii

Parker v. Hunegnaw,

364 S.W.3d 398

(Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 18

Pentico v. Mad-Wayler, Inc.,

964 S.W.2d 708

(Tex. App.—Corpus Christi 1998, pet. denied) ........................................... 23

Positive Feed, Inc. v. Guthmann,

4 S.W.3d 879

(Tex. App.—Houston [1st Dist.] 1999, no pet.) ........................................... 49

Reiner v. Ehrlich,

66 A.3d 1132 (Md. Ct. Spec. App. 2013) ............................................... 30, 31

Sams v. N.L. Indus., Inc.,

735 S.W.2d 486

(Tex. App.—Houston [1st Dist.] 1987, no writ) .......................................... 45

Sanders v. Capitol Area Council,

930 S.W.2d 905

(Tex. App.—Austin 1996, no writ) .............................................................. 45

SW. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture,

981 S.W.2d 951

(Tex. App.—Houston [1st Dist.] 1998, pet. denied) .................. 18, 19, 20, 21

State v. Heal,

917 S.W.2d 6 (Tex. 1996)....................................................................... 16, 25

State & County Mut. Fire Ins. Co. ex rel. S. United Gen. Agency of

Tex. v. Walker,

228 S.W.3d 404

(Tex. App.—Fort Worth 2007, no pet.) .................................................. 26, 29

Stewart Title Guar. Co. v. Sterling,

822 S.W.2d 1 (Tex. 1991)............................................................................. 37

viii

Tanglewood Homes Ass’n, Inc. v. Feldman,

436 S.W.3d 48

(Tex. App.—Houston [14th Dist.] 2014, pet. denied) .................................. 28

Texan Dev. Co. v. Hodges,

237 S.W.2d 436

(Tex. Civ. App.—Amarillo 1951, no writ) ................................................... 19

Tex. Div.-Tranter v. Carrozza,

876 S.W.2d 312 (Tex. 1994) ........................................................................ 34

Tony Gullo Motors I, L.P. v. Chapa,

212 S.W.3d 299 (Tex. 2006) .................................................................. 40, 41

U.S. Nat’l Bank Ass’n v. Johnson,

No. 01-10-00837-CV, 2011 WL 6938507

(Tex. App.—Houston [1st Dist.] De. 30, 2011, no pet.) (mem. op.) ........... 18

Universal Printing Co. v. Premier Victorian Homes, Inc.,

73 S.W.3d 283

(Tex. App.—Houston [1st Dist.] 2001, pet. denied) .................................... 21

Valence Operating Co. v. Dorsett,

164 S.W.3d 656 (Tex. 2005) ........................................................................ 16

VICC Homeowners’ Ass’n v. Los Campeones, Inc.,

143 S.W.3d 832

(Tex. App.—Corpus Christi 2004, no pet.) .................................................. 27

Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) (orig. proceeding) .......................................... 25

Wheeler v. Green,

157 S.W.3d 439, 442 (Tex.2005) ................................................................. 43

White Motor Co. v. Loden,

373 S.W.2d 863, 865

(Tex. Civ. App.—Dallas 1963, no writ) ....................................................... 22

ix

Wise v. Conklin,

No. 01-13-00840-CV, 2015 WL 1778612

(Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet. h.) (mem. op.) ...... 20

Yancy v. United Surgical Partners Intl., Inc.,

236 S.W.3d 778 (Tex. 2007) ........................................................................ 16

Statues

Md. Code Ann., Cts. & Jud. Proc. § 5-422 ........................................................ 30

Tex. Bus. Orgs. Code § 22.152 .................................................................... 30, 31

Tex. Bus. Orgs. Code § 22.221 .......................................................................... 30

Tex. Bus. Orgs. Code § 22.235 .......................................................................... 30

Tex. Civ. Prac. & Rem. Code § 37.009 ................................................. 21, 25, 28

Tex. Prop. Code § 204.006 ........................................................................ 2, 3, 32

Rules

Tex. R. Civ. P. 5 ........................................................................................... 43, 48

Tex. R. Civ. P. 21(b) .......................................................................................... 45

Tex. R. Civ. P. 166a ........................................................................................... 46

Tex. R. Civ. P. 166a(c) .......................................................................... 36, 47, 49

Other Authorities

2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) ................ 22

65 AM. JUR. 2d Quieting Title § 63 (Database updated May 2015) ............ 30, 31

74 C.J.S. Quieting Title § 3 (April 2015)........................................................... 19

BLACK’S LAW DICTIONARY 308 (9th ed. 2009) ................................................. 34

x

STATEMENT OF THE CASE

Nature of the Case: Elizabeth Howard Crowell sued twenty-seven

defendants, including Eileen K. Starbranch, in

connection with a property owners’ association that

was allegedly invalidly formed. CR6-25.

Trial Court: The Honorable Jeff Shadwick, 55th District Court,

Harris County, Texas, cause number 2013-14192.

Trial Court Proceedings: In 2013, Crowell settled with all of the defendants,

except for Starbranch. CR866-908 (App. 4). In 2015,

Crowell filed her Motion for Summary Judgment on

Attorneys’ Fees against Starbranch. CR366-674.

Subsequently, Starbranch filed a motion to dismiss

Crowell’s action for declaratory judgment arguing the

claim was moot. 1st Supp. CR7-122.

Trial Court’s Disposition: The trial court did not find Starbranch liable to

Crowell or declare the respective rights and interests of

Crowell and Starbranch. However, the trial court did

grant Crowell’s Motion for Summary Judgment on

Attorneys’ Fees, in part, awarding attorneys’ fees in

the amount of $26,462.00 against Starbranch. CR917.

The order became final and appealable on April 28,

2015, when the trial court entered a final judgment

denying Starbranch’s motion for reconsideration and

motion to dismiss. CR1059-60.

xi

ISSUE PRESENTED

Did the trial court err by granting Crowell’s Motion for Summary Judgment

on Attorneys’ Fees?

A. Did the trial court err by awarding attorneys’ fees when Crowell’s claim for

declaratory relief merely duplicated the issues set forth in her action to quiet

title?

B. Did the trial court err by deciding a fact question on reasonable and

necessary attorneys’ fees that was reserved for the jury?

C. Did the trial court abuse its discretion by awarding fees that were neither

equitable nor just?

D. Did the trial court err by granting any relief to Crowell because there were

fact issues as to the amount of reasonable and necessary attorneys’ fees?

E. Did the trial court abuse its discretion by considering evidence filed after the

submission date and which Starbranch did not have the opportunity to

controvert?

F. Did the trial court err by granting more relief than was requested in

Crowell’s motion?

xii

STATEMENT OF THE FACTS

A. Overview

This appeal arises from Appellee Elizabeth Howard Crowell’s suit to quite

title and declaratory judgment action seeking the same relief. CR19-21. Crowell

sued a property owners’ association, its officers and directors, and all of the

association members, claiming the association was not properly formed. CR6-25.

Among the defendants was Appellant Eileen K. Starbranch, who was not an

officer or director but instead a mere member of the association. CR6-25.

Starbranch has never been found liable for anything, and the trial court made no

declarations concerning the respective rights and interests of Crowell and

Starbranch. CR1040 (App. 2); CR1059-60 (App. 1). Crowell’s suit to quiet title,

and her duplicative declaratory judgment action, were dismissed without any

finding of liability or declaration against Starbranch. CR1040 (App. 2); CR1059-

60 (App. 1).

Yet the trial court, on summary judgment, ordered Starbranch to pay

Crowell $26,462.00 in attorneys’ fees. CR917 (App. 3). That order underlies

Starbranch’s appeal, and the facts germane to this appeal are as follows:

B. The parties and their relationships

In March 2009, Crowell acquired over 25,000 square feet of property in the

Jandor Gardens subdivision with the following address: 5326 Institute Lane,

1

Houston, Texas 77005 (hereinafter, the “Property”). CR75; 92. Crowell and all

of the defendants, including Starbranch, are homeowners in the Jandor Gardens

subdivision. CR7-9.

In 2012, several of the homeowners in Jandor Gardens formed a property

owners’ association for Jandor Gardens. CR99-124. The name of the property

owners’ association was the “Jandor Gardens Association, Inc.,” a Texas nonprofit

corporation (hereinafter, the “Association”). CR100.

To form a property owners’ association, a petition committee must be

formed first. Tex. Prop. Code § 204.006(a). Defendants Anna Stock, Fred Sharifi,

and Wyman H. Herendeen served on the petition committee for the Association.

CR154-157. Defendant Ron Whitte incorporated the Association. CR217-21.

Defendants Rick Rambo, Ron Witte, and Wyman H. Herendeen served as the

initial directors for the Association. CR101; 191; 218-219.

Starbranch did not serve as either an officer or a director for the Association.

CR217-21. In addition, Starbranch did not serve on the petition committee for the

Association. CR154-157. Instead, Starbranch was simply a member of the

Association. CR755-58; 181; 211; 260; 302.

Starbranch has never asserted any interest in Crowell’s Property. CR758. In

fact, Starbranch has disclaimed any and all interest in Crowell’s Property. CR758.

2

C. Neighbors ask Starbranch to execute signature pages for the

Association.

It was not Starbranch’s idea to form the Association. CR755-58. On or

about November 8, 2012, Starbranch was in her vehicle exiting her garage onto

Dora Street, one of the streets in Jandor Gardens. CR756. While doing so, about

four or five people claiming to be homeowners in Jandor Gardens stopped her and

stated that they were forming the Association. CR756. They asked Starbranch to

execute one of more signature pages in connection with the Association. CR756.

Starbranch executed the signature pages presented to her. CR181; 211; 260; 302.

On or about November 18, 2012, Starbranch noticed that one or more

signature pages in connection with the Association were left on her front doorstep.

CR756. Starbranch picked up the document, signed where necessary, and then left

the document on her front doorstep. CR756.

Starbranch did not sign two of the instruments that Crowell sought to declare

as void in the trial court. Starbranch did not sign the “Notice of Formation of

Petition Committee”1 or the “Petition Pursuant to Property Code § 204.006 To

Create The Jandor Gardens Association, Inc.,” 2 which were the subjects of the first

and fourth declarations sought by Crowell in her later suit to quiet title and

duplicative declaratory judgment action. CR20.

1

CR154-57.

2

CR100-04.

3

Starbranch never proposed or circulated the instruments that created the

Association. CR756. In addition, Starbranch did not file any instruments in the

Harris County real property records in connection with the Association. CR756.

In short, Starbranch did nothing more than give her okay to the Association idea

proposed by others. CR755-58.

D. Crowell files suit.

In her Original Petition, Crowell asserted an action to quiet title against all

of the defendants, including Starbranch, wherein she alleged as follows:

the documents filed by Defendants [including Starbranch] in the real

property records (see Harris County Clerk File Nos. 20120521806,

20120521807, 20120521808, 201205436661, and 2012054016216)

are clouds or encumbrances on Ms. Crowell’s right of ownership of

the Property, which affect impair Ms. Crowell's title to the Property.

Ms. Crowell seeks to nullify the effect of these disputed filings and

encumbrances. Ms. Crowell is entitled to a judgment that sets aside

these improper filings and removes them as clouds on her title.

CR21.

Crowell sought the same the relief in her claim for declaratory relief against all of

the defendants, including Starbranch. CR19-20. On April 7, 2013, a jury trial was

requested and the jury fee was paid. CR56-58; 1093.

The following defendants did nothing more that than approve instruments

prepared by the Association: Eileen K. Starbranch, George L. Parker, Eva K.

Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric

4

Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell

later dismissed each of these defendants, except for Starbranch, from the lawsuit.

CR26-46; 59-61; 65-68; 72-74.

The Association was never Starbranch’s idea, and she did not oppose the

relief that Crowell sought in her action to quiet title and in her declaratory

judgment action (although Starbranch did contest her liability). CR724-810. In

fact, upon learning that Crowell wanted Starbranch to execute a Rescission of Real

Property Filings in connection with the Association, Starbranch voluntarily

executed the same and filed it in the real property records. CR755-767.

E. Termination of the Association in 2013.

On June 24, 2013, Crowell filed her Motion for Summary Judgment as to

Liability against several of the defendants in this lawsuit. CR75-344. In her

summary judgment motion, Crowell sought partial summary judgment on her

action for declaratory judgment and her action to quiet title. CR75-344; 368.

On August 19, 2013, this Court granted Crowell’s Motion for Summary

Judgment as to Liability against several of the defendants in the lawsuit. CR345-

346. However, because Starbranch had not made an appearance in this lawsuit

when the Motion for Summary Judgment as to Liability was filed and granted, the

order granting partial summary judgment was not entered against Starbranch.

5

CR722-23. Starbranch has never been found liable for anything. CR1059-60

(App. 1).

On October 15, 2013, Crowell entered into a settlement agreement with the

Association, Sarah Whiting, Ron Witte, Lawrence E. Plotsky, Rick Rambo,

Frances Rambo, David D. Stock, Anna L. Stock, Wyman H. Herendeen, Mary

Herendeen, Fereidoon Sharifi, Soody Sharifi, Edward G. Rizk, Billie Rizk,

Benjamin Levit, Erica Levit, Walter J. Taylor, and Anita J. Taylor (the “Settling

Defendants”) wherein the Settling Defendants agreed to “terminate the

[Association] by filing a Certificate of Termination of a Domestic Nonprofit

Corporation or Cooperative Association with the Secretary of State.” CR866-908

(App. 4). On November 20, 2013, the Settling Defendants filed the Certificate of

Termination as to Jandor Gardens Association, Inc. with the Texas Secretary of

State. 1st Supp. CR120-22 (App. 5). In the settlement agreement, Crowell and the

Settling Defendants also agreed as follows:

4. Filing of Order.

The Parties acknowledge and agree that Crowell will file a certified

copy of the Order signed October 8, 2013, which is attached as

Exhibit C, in the real property records. The Parties acknowledge and

agree that they have waived any right to appeal the Order.

5. Applicable Deed Restrictions.

All Parties hereto acknowledge that the 1929 deed restrictions of

Jandor Gardens, recorded in Volume 811, Pages 285-286 of the Deed

6

Records of Harris County, Texas, remain in effect, and all Parties

hereto agree to comply with the deed restrictions.

CR868 (App. 4).

On December 5, 2013, Crowell filed the trial court’s order, dated October 8, 2013,

in the real property records for Harris County. CR790-94. Filing the trial court’s

October 8, 2013, order in the real property records removed the cloud of title on

the Property that had been created by the Association. CR368.3

F. The trial court grants Crowell’s Motion for Summary Judgment on

Attorneys’ Fees against Starbranch.

On February 25, 2015, Crowell filed her Motion for Summary Judgment on

Attorney’s Fees against Starbranch seeking $71,345.80 in attorneys’ fees, incurred

by Crowell between February 28, 2013, and October 1, 2014. CR366-674. In that

motion, Crowell claimed that she had obtained an August 19, 2013, summary

judgment order on her action to quiet title and her claim for declaratory relief

against Starbranch. CR368.4 Starbranch filed a motion for reconsideration of the

summary judgment order, 5 arguing that the order could not have been against

Starbranch because “[w]hen Crowell filed and served her Motion for Summary

3

In her Motion for Summary Judgment on Attorneys’ Fees, Crowell admitted the following: in

2013, the trial court “granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby

nullifying the actions of defendants’ bogus POA . . . .” CR368.

4

In her Motion for Summary Judgment on Attorneys’ Fees, Crowell made the following claim:

“On August 19, 2013, [the trial court] granted Ms. Crowell’s Motion for Summary Judgment on

Liability, thereby nullifying the actions of defendants’ bogus POA, and establishing the liability

of the defendants in this case with respect to certain causes of action including Ms. Crowell’s

action for declaratory judgment.” CR368.

5

CR675-708.

7

Judgment on Liability, this Court did not even have jurisdiction over Starbranch.”

CR677.

On March 10, 2015, the trial court entered an order ruling as follows:

ORDERED that the August 19, 2013 Order Granting Motion for

Summary Judgment did not apply to Starbranch since Starbranch was

not a party at that time. The Motion for Reconsideration is MOOT.

ORDERED that the Court will consider Plaintiff’s Motion for

Summary Judgment as to Liability (filed 6-24-13) and its application

to Starbranch by submission on March 30, 2015, along with Plaintiff’s

Motion for Summary Judgment on Attorneys’ Fees.

CR722-23.

Crowell’s Motion for Summary Judgment as to Liability, filed on June 14,

2013, sought the following five declarations concerning the respective rights and

interests of Crowell and Starbranch:

1) the “Notice of Formation of Petition Committee” filed November

8, 2012 (Harris Co, Clerk File No. 20120521806) has no force and

effect, is nullified, and is no longer a cloud on the title to, and right

of ownership of, the Property;

2) the “Petition Approval” filed November 8, 2012 (Harris County

Clerk File No. 20120521807) has no force and effect, is nullified,

and is no longer a cloud on the title to, and right of ownership of,

the Property;

3) the “Petition and First Amendment to Declaration for Jandor

Gardens” filed November 8, 2012 (Harris County Clerk File No.

20120521808) has no force and effect, is nullified, and is no longer

a cloud on the title to, and right of ownership of, the Property;

8

4) the “Petition Pursuant to Property Code § 204.006 To Create The

Jandor Gardens Association, Inc.” filed November 19, 2012

(Harris County Clerk File No. 201205436661) has no force and

effect, is nullified, and is no longer a cloud on the title to, and right

of ownership of, the Property; and

5) the “First Amendment to Declaration for Jandor Gardens” filed

November 20, 2012 (Harris County Clerk File No. 20120540162)

has no force and effect, is nullified, and is no longer a cloud on the

title to, and right or ownership of, the Property.

CR88-89.

In other words, Crowell sought declarations to nullify the same five documents that

she sought to nullify in her action to quiet title against Starbranch. Compare CR21

with CR88-89.

On March 23, 2015, Starbranch filed her Response to Crowell’s Motion for

Summary Judgment as to Liability and Crowell’s Motion for Summary Judgment

on Attorneys’ Fees. CR724-810. Starbranch filed the Affidavit of Nelson S.

Ebaugh and the Affidavit of Eileen K. Starbranch, M.D. in response to the

attorneys’ fee affidavit submitted by Crowell. CR755-83. Mr. Ebaugh testified

that “it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s

attorneys have spent so little time prosecuting Crowell’s declaratory judgment

action against Starbranch.” CR771. In addition, Starbranch objected to Crowell’s

failure to segregate nonrecoverable fees from recoverable fees and Crowell’s

failure to segregate the fees owed by different parties. CR747-50.

9

On April 1, 2015, two days after the submission date for Crowell’s summary

judgment motions, Crowell filed a “Motion to Consider the Supplement to the

Affidavit of John B. Shely Filed in Connection with the Pending Motions on

Summary Judgment as to Attorneys’ Fees” (hereinafter, the “Motion to Consider

the Supplemental Affidavit”) that raised new and independent summary-judgment

grounds. CR834-63; 1st Supp. CR3-6. The Supplement to the Affidavit of John B.

Shely identified $19,345.506 in attorneys’ fees that Crowell had not requested in

her Motion for Summary Judgment on Attorneys’ Fees. Compare CR366-480 with

CR836-63 and 1st Supp. CR3-6. Shely claimed that Crowell incurred $19,345.50

in attorneys’ fees between November 3, 2014, and March 28, 2015. CR836-63; 1st

Supp. CR3-6.

In her Motion to Consider the Supplemental Affidavit, Crowell stated that

she decided to submit the Supplement to the Affidavit of John B. Shely to the trial

court because:

[It] describes additional fees incurred by Ms. Crowell in connection

with the pending motions on summary judgment as to attorneys’ fees

and for work performed on other litigation activities related solely to

Defendant Dr. Eileen K. Starbranch since November 1, 2014. These

fees are not included in the pending filings.

Consideration of the Supplement will allow the Court to

simultaneously evaluate the most recent attorneys’ fees incurred by

6

Calculated from the addition of the following amounts: $6,110.50 (November-December 2014),

$5,848.00 (January-February 2015), and $7,387.00 (March 2015).

10

Ms. Crowell along with those previously submitted and will promote

judicial efficiency in resolving matters currently before the Court.

CR834-35.

Crowell did not serve a notice identifying when the Motion to Consider the

Supplemental Affidavit would be set for hearing or for submission.

On April 6, 2015, the trial court entered an interlocutory summary judgment

order that neither granted nor denied Crowell’s Motion for Summary Judgment as

to Liability against Starbranch. CR917 (App. 3). Instead of declaring the

respective rights and interests of Crowell and Starbranch, the summary judgment

order simply provided as follows:

Plaintiff Elizabeth Howard Crowell is awarded judgment for

attorneys’ fees in the amount of 26,462.00 [sic], from Defendant

Eileen K. Starbranch. This amount reflects the unrebutted $19,245.50

set out in John Shely’s April 1, 2015 affidavit and $7,116.50 awarded

from the amounts requested in Crowell’s February 25, 2015, motion.

To the extent the full amount requested by Plaintiff was not awarded,

this Court is sustaining the objections raised by Starbranch.

CR917 (App. 3).

In other words, the trial court reduced the amount of attorneys’ fees initially

requested on February 25, 2015, from $71,345.80 to $7,116.50. Compare CR371

with CR917 (App. 3). In addition, the trial court reduced the amount of attorneys’

fees requested on April 1, 2015, from $19,345.50 to $19,245.50. Compare CR836-

63 and 1st Supp. CR3-6 with CR917 (App. 3).

11

G. The trial court grants Starbranch’s motion to dismiss Crowell’s action

for declaratory judgment as moot.

On April 3, 2015, Starbranch filed a motion to dismiss Crowell’s claim for

declaratory relief as moot because the Association was terminated in 2013 pursuant

to a settlement agreement. 1st Supp. CR7-122. Crowell did not file a response to

this motion. On April 22, 2015, the trial court entered an interlocutory order

stating “that Plaintiff Elizabeth Howard Crowell’s action for declaratory judgment

that she filed against Starbranch is dismissed because the claim is moot.” CR1040

(App. 2) (underline in original).

On April 24, 2015, Starbranch filed a motion to vacate any order or

judgment previously issued and to dismiss the case for want of jurisdiction. 1st

Supp. CR124-26. The trial court did not rule on this motion.

H. Order and Final Judgment leads to this appeal.

On April 16, 2015, Starbranch filed an amended motion for reconsideration

objecting to the trial court’s consideration of Crowell’s late evidence filed after the

submission date for Crowell’s summary judgment motions. CR981-1011. In her

amended motion for reconsideration, Starbranch identified her objections to

Crowell’s late evidence and presented affidavits controverting Crowell’s late

evidence. CR981-1011.

12

In Crowell’s Response to Starbranch’s Post Judgment Motions, Crowell

requested the denial of Starbranch’s amended motion for reconsideration and

various other post-trial motions filed by Starbranch. CR1041-43. On April 28,

2015, the trial court granted Crowell’s request and entered an Order and Final

Judgment denying Starbranch’s amended motion for reconsideration and awarded

Crowell “attorneys’ fees in the amount of $26,462.00 from Defendant Eileen K.

Starbranch.” CR1059-60 (App. 1). In its Order and Final Judgment, the trial court

held as follows:

On April 6, 2015, the Court entered an order resolving Crowell’s

claim for declaratory relief . . . (the “Summary Judgment Order”) . . . .

* * *

On April 22, 2015, the Court entered an [o]rder . . . dismissing

Crowell’s claim for declaratory relief as moot because it was resolved

by the Summary Judgment Order.

CR1060 (App. 1).

The trial court never made any declaration of the respective rights and interests of

Crowell and Starbranch. CR1059-60 (App. 1). Finally, the trial court made the

following statement in its Order and Final Judgment:

The Court has considered Starbranch’s objections and took them into

account in carefully reviewing the subject attorneys’ fees. The Court

eliminated requested fees that were not segregated or were related

solely to parties other than Starbranch. Fees were awarded only for

causes of action which support attorneys’ fees.

13

CR1059 (App. 1).

SUMMARY OF ARGUMENT

Crowell misused the Declaratory Judgments Act by duplicating the relief she

already sought in her action to quiet title in a claim for declaratory relief. Crowell

violated the rule that a party cannot use the Declaratory Judgments Act as a vehicle

to obtain otherwise impermissible attorneys’ fees. Consequently, the judgment

must be reversed and a take-nothing judgment rendered. For several other

independent reasons, the trial court erred or abused its discretion by awarding

attorneys’ fees against Starbranch.

The trial court improperly usurped the jury’s fact-finding role during a

summary-judgment proceeding. For instance, the trial court unilaterally reduced

the amount of attorneys’ fees initially requested in Crowell’s motion for summary

judgment on attorneys’ fees from $71,345.80 to $7,116.50. Accordingly, the

attorneys’ fee award should be reversed and the case should be remanded to the

trial court for further proceedings.

The trial court abused its discretion by awarding attorneys’ fees that were

neither equitable nor just. The trial court awarded attorneys’ fees under the

Declaratory Judgments Act before it even declared the representative rights and

interests of Crowell and Starbranch. In addition, Starbranch was not even a proper

party to Crowell’s declaratory judgment action. Finally, there is no evidence that

14

Starbranch prolonged the case or prevented a complete and final resolution to this

case. For each of these independent reasons, the attorneys’ fee award should be

reversed and a take nothing judgment rendered or, in the alternative, remanded to

the trial court for further proceedings.

The trial court improperly issued a summary judgment even though the

summary judgment evidence raised several genuine issues of material fact. The

Ebaugh Affidavit and the Starbranch Affidavit each raised genuine issues of

material fact. In addition, genuine issues of material fact necessarily existed

because the trial court sustained Starbranch’s objections to Crowell’s failure to

segregate her attorneys’ fees. Finally, Crowell’s own evidence established the

existence of genuine issues of material fact. For each of these independent

reasons, the attorneys’ fee award should be reversed and the case should be

remanded to the trial court for further proceedings.

The trial court abused its discretion by considering evidence filed after the

submission date and which Starbranch did not have the opportunity to controvert.

Two days after the submission date on her Motion for Summary Judgment on

Attorneys’ Fees, Crowell filed new evidence supporting a ground for summary

judgment that had not been sought in Crowell’s initial summary judgment motion.

Because the motion was not supported by good cause and the new evidence unduly

15

prejudiced Starbranch, the attorneys’ fee award should be reversed and the case

should be remanded to the trial court for further proceedings.

The trial court improperly awarded more relief than was requested in

Crowell’s Motion for Summary Judgment on Attorneys’ Fees. The new evidence

submitted by Crowell two days after the submission date for the summary

judgment motion entailed an independent ground for summary judgment that had

not been sought in Crowell’s summary judgment motion. Accordingly, this Court

should reverse and remand as to the attorneys’ fees which were never specifically

requested in Crowell’s summary judgment motion.

ARGUMENT

This Court reviews a grant of summary judgment under a de novo standard.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Questions of

law are reviewed “without deference to a lower court’s conclusion.” State v. Heal,

917 S.W.2d 6, 9 (Tex. 1996). “When reviewing a summary judgment, [this Court]

‘must examine the entire record in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against the

motion.’” Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782

(Tex. 2007) (italics in original).

For several independent reasons, the trial court erred by granting Crowell’s

Motion for Summary Judgment on Attorneys’ Fees. First, the Declaratory

16

Judgments Act cannot be used as a vehicle to obtain otherwise impermissible

attorneys’ fees. Second, the trial court improperly usurped the jury’s fact-finding

role during a summary-judgment proceeding. Third, the summary judgment

evidence raised genuine issues of material fact. Fourth, the trial court granted

Crowell more relief than was requested in her Motion for Summary Judgment on

Attorneys’ Fees.

In addition, for at least a couple of independent reasons, the trial court

abused its discretion by granting Crowell’s Motion for Summary Judgment on

Attorneys’ Fees. First, the trial court abused its discretion by awarding attorneys’

fees against Starbranch under circumstances that were neither equitable nor just.

Second, the trial court abused its discretion by considering evidence filed after the

submission date and which Starbranch did not have the opportunity to controvert.

A. The Declaratory Judgments Act cannot be used as a vehicle to obtain

otherwise impermissible attorneys’ fees.

Crowell has misused the Declaratory Judgments Act. Crowell duplicated the

relief she already sought in her action to quiet title via declaration. Thus, any

award of attorneys’ fees for Crowell’s declaratory judgment action violates the rule

that “a party cannot use the [Declaratory Judgments Act] as a vehicle to obtain

otherwise impermissible attorney’s fees.” MBM Fin. Corp. v. Woodlands

Operating Co., 292 S.W.3d 660, 669 (Tex. 2009).

17

As the Texas Supreme Court has explained, “[i]f repleading a claim as a

declaratory judgment could justify a fee award, attorney’s fees would be available

for all parties in all cases. That would repeal not only the American Rule

[prohibiting fee awards unless specifically provided by contract or statute] but also

the limits imposed on fee awards in other statutes.” Id. For these reasons, “[a]

declaratory judgment action may not be used solely to obtain attorney’s fees that

are not otherwise authorized by statute or to settle disputes already pending before

a court.” Sw. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951,

956 (Tex. App.–Houston [1st Dist.] 1998, pet. denied).

The phrases “action to quiet title” and “suit to quiet title” are used

interchangeably and refer to the same claim. E.g., U.S. Nat'l Bank Ass’n v.

Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *2-3 (Tex. App.—Houston

[1st Dist.] Dec. 30, 2011, no pet.) (mem. op.). “[T]he term ‘suit to quiet title’ has

been used broadly in reference to legal disputes regarding (1) title to, and

possession of, real property—a trespass-to-try-title action, and (2) validity of other

‘clouds’ which indirectly have an adverse effect on an undisputed owner’s title to

real property.” Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston

[14th Dist.] 2012, no pet.). In other words, an action to quiet title and an action to

18

remove a cloud on title are one and the same. 7 “[A] suit . . . to remove

encumbrances, or remove a cloud or quiet title may be maintained even though the

adversary is not actually occupying or in possession of the land.” Texan Dev. Co.

v. Hodges, 237 S.W.2d 436, 439 (Tex. Civ. App.—Amarillo 1951, no writ). In

fact, an action to quiet title may be asserted, as done so by Crowell in this case,

where any instrument 8 “would cast a cloud on the owner’s enjoyment of the

property.” Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14–10–00090–CV,

2011 WL 1364070, at *3 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet.

denied) (mem. op.). Attorneys’ fees are not recoverable in an action to quiet title.

Sw. Guar. Trust Co., 981 S.W.2d at 957.

Here, an examination of the pleadings reveals that Crowell’s declaratory-

judgment action duplicated her action to quiet title. Crowell sought a declaration

that five documents filed in connection with the property owners’ association have

“no force and effect,” are “nullified” and are “no longer a cloud on Ms. Crowell’s

title to, and right of ownership of, the Property . . . .” CR19-20. In her action to

quiet title, Crowell alleged as follows:

7

Lonnie E. Griffith, Jr., J.D., 74 C.J.S. Quieting Title § 3 (April 2015) (Texas does “not observe

the distinction between an action to quiet title and to remove a cloud on title, treating the actions

as one and the same”).

8

Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A

cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if

valid, would affect or impair the title of the owner of the property.” . . . “Any deed, contract,

judgment or other instrument not void on its face that purports to convey an interest in or make

any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud

upon the legal title of the owner.”).

19

the [five] documents filed by Defendants in the real property records

(see Harris County Clerk File Nos. 20120521806, 20120521807,

20120521808, 201205436661, and 2012054016216) are clouds or

encumbrances on Ms. Crowell’s right of ownership of the Property,

which affect or impair Ms. Crowell’s title to the Property. Ms.

Crowell seeks to nullify the effect of these disputed filings and

encumbrances. Ms. Crowell is entitled to a judgment that sets aside

these improper filings and removes them as clouds on her title.

CR21.

In other words, Crowell sought the same relief in her claim for declaratory relief

that she sought in her action to quiet title. CR19-21. Because Crowell’s claim for

declaratory relief merely duplicated the issues set forth in her action to quiet title,

Crowell is not entitled to attorney’s fees based on her claim for declaratory relief.

Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612, at *8 (Tex. App.—

Houston [1st Dist.] Apr. 16, 2015, no pet.) (mem. op.) (collecting cases and

affirming the trial court’s denial of Crowell’s claim for attorneys’ fees because the

UDJA could not be used to recover attorney's fees for a suit brought to remove

cloud from title); Sw. Guar. Trust Co., 981 S.W.2d at 956 (“Attorney’s fees are not

available in a suit to quiet title or to remove cloud on title.”).

In addition, in her claim for declaratory relief, Crowell did not seek to

construe any terms of the instruments filed by the Association. CR19-21.

Consequently, Crowell’s declaratory judgment action could offer her no more

relief than her action to quiet title.

20

For these reasons, this Court should reverse the portion of the trial court's

judgment awarding attorneys’ fees to Crowell and render judgment that Crowell

take nothing on her requests for attorneys’ fees. Universal Printing Co. v. Premier

Victorian Homes, Inc., 73 S. W.3d 283, 296 (Tex. App.—Houston [1st Dist.] 2001,

pet. denied) (“There is no basis for declaratory relief when a party is seeking in the

same action a different, enforceable remedy, and a judicial declaration would add

nothing to what would be implicit or express in a final judgment for the

enforceable remedy.”); Sw. Guar. Trust, 981 S.W.2d at 956. (denying request for

attorneys’ fees where the declaratory judgment action simply sought to nullify the

clouds of title rather than to construe the terms of the challenged instruments).

Because Crowell only obtained attorneys’ fees from Starbranch, and Crowell

cannot recover attorneys’ fees under her claim for declaratory relief as a matter of

law, the judgment must be reversed and a take-nothing judgment rendered.

B. The trial court improperly usurped the jury’s fact-finding role during a

summary-judgment proceeding.

“Pursuant to Section 37.009, the judge is to determine whether an award of

attorney’s fees is equitable and just; however, even when declaratory relief has

been determined by summary judgment, the issue of whether attorney’s fees are

reasonable and necessary is a question of fact for the jury to determine when the

jury is the trier of fact.” Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559-

21

60 (Tex. App.—Eastland 2010, pet. denied) (citing City of Garland v. Dallas

Morning News, 22 S.W.3d 351, 367 (Tex.2000); Bocquet, 972 S.W.2d 19, 20–21

(Tex. 1998)).

On April 7, 2013, defendants Anita J. Taylor and Walter J. Taylor requested

a jury trial in this case and the jury fee was paid. CR56-58; 1093. “A jury

request by one party inures to the benefit of all other parties.” 9 Consequently,

Starbranch always had a right to a jury trial in this case. Starbranch never waived

her right to a jury trial in this case.

Here, Crowell submitted an affidavit stating that $71,354.80 was a

reasonable amount for the legal services rendered as of February 24, 2015.

CR386-468. Starbranch submitted an opposing affidavit in which her attorney

opined that “it is unreasonable to assess $71,354.80 against Starbranch when

Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory

judgment action against Starbranch.” CR771.

In its Order and Final Judgment, the trial court stated that it had partially

granted Crowell’s Motion for Summary Judgment on Attorneys’ Fees on April 6,

2015, and further stated in relevant part as follows:

9

Judge Adele Hedges & Daniel K. Hedges, Involuntary bench trial—No request for a jury

trial—Request binding all parties, 2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters

2014) (“A jury request by one party inures to the benefit of all other parties. White Motor Co. v.

Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ). The inquiry is simply

whether one party made a proper jury request, not which party made it. Almaguer v. Jenkins, 882

S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ) (jury request and fee payment inure

to benefit all parties).”).

22

The Court eliminated requested fees that were not segregated or were

related solely to parties other than Starbranch. Fees were awarded

only for causes of action which support attorneys’ fees.

CR1059 (App. 1).

In other words, the trial court inappropriately engaged in fact finding when it

decided a fact dispute about the amount of attorneys’ fees, if any. General Elec.

Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex. App.—Houston

[1st Dist.] 1993, writ denied) (“Cases dealing with the fixing of attorneys' fees by

the trial judge when acting as the trier of fact have no application to a summary

judgment proceeding.”). In addition, the trial court inappropriately engaged in fact

finding when it decided to award Crowell $19,245.50 of the $19,345.50 initially

sought by Crowell in her Motion to Consider the Supplemental Affidavit.

Compare CR836-63 and 1st Supp. CR3-6 with CR917 (App. 3). In a declaratory

judgment action, the jury, not the judge, decides the amount of attorneys’ fees.

Bocquet, 972 S.W.2d at 21.

Because the Order and Final Judgment specifies the grounds on which the

court bases summary judgment, this Court should limit its review to those grounds.

Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 712-13 (Tex. App.—Corpus Christi

1998, pet. denied) (“Where the summary judgment order specifies the grounds on

which it bases summary judgment, we limit our review to those grounds. The

summary judgment will be affirmed on appeal if the specified grounds are

23

meritorious. Even if the motion contained other independent grounds on which

summary judgment was sought, the grounds specified in the order are the only

ones on which summary judgment may be affirmed.”) (citations omitted).

Significantly, “[a] trial court is . . . not permitted to take judicial notice of

reasonable and necessary fees under the Declaratory Judgments Act.” Adiuku v.

Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015

WL 778487, at *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.)

(mem. op.) (“There is no presumption that a request for attorney’s fees under the

Declaratory Judgments Act is reasonable.”). Again, only a jury, not the judge,

could decide the amount of attorneys’ fees in this case.

In McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08-

00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(mem. op.), this Court held that the trial court’s reduction of the attorney’s fees

awarded in a summary judgment proceeding “reflect[ed] that the trial court was

duly concerned about the issue [of attorney’s fees], but the court was not

authorized to make a fact finding at this stage.” Id. at *4. “[C]ontroverting

evidence before the trial court bar[red] summary judgment on the Association's

attorney’s fees claim.” Id. For these reasons, this Court reversed the trial court’s

summary judgment on the attorney’s fee award and remanded the case for trial. Id.

24

As in McGlown, the trial court below was not authorized to engage in fact

finding at the summary judgment stage.

The summary judgment rule does not provide for a trial by deposition

or affidavit. The rule provides a method for summarily ending a case

involving only a question of law and no genuine fact issues. See

Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The

trial court must determine whether fact issues exist, not weigh the

evidence or its credibility and try the case on affidavits. Gulbenkian,

252 S.W.2d at 931.

Thompson v. Community Health Inv. Corp., 892 S.W.2d 440, 441-42

(Tex. App.—Dallas 1995), rev'd on other grounds, 923 S.W.2d 569

(Tex. 1996).

For these reasons, the amount of Crowell’s reasonable attorneys’ fee is still a

factual issue to be tried. Accordingly, the attorneys’ fee award should be reversed

and the case should be remanded to the trial court for further proceedings.

C. The attorneys’ fees are neither equitable nor just.

In a declaratory judgment action, the trial “court may award costs and

reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac.

& Rem. Code § 37.009. Though a question of law, the determination of whether

attorneys’ fees are equitable and just under the Texas Declaratory Judgment Act is

reviewed for an abuse of discretion. Bocquet, 972 S.W.2d at 20-21. “[A] clear

failure by the trial court to analyze or apply the law correctly will constitute an

abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In

addition, “[i]t is an abuse of discretion for a trial court to rule . . . without

25

supporting evidence.” Bocquet, 972 S.W.2d at 21. “[I]n reviewing an attorney fee

award under the [Declaratory Judgments] Act, the court of appeals must determine

whether the trial court abused its discretion by awarding fees . . . when the award

was inequitable or unjust.” Id. at 21; State & Cnty. Mut. Fire Ins. Co. ex rel. S.

United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404, 407 (Tex. App.—Fort

Worth 2007, no pet.) (“A court of appeals will determine that the trial court abused

its discretion in granting attorney’s fees in a declaratory judgment action if ‘the

award was inequitable or unjust as a matter of law.’”).

For at least three independent reasons, the trial court abused its discretion by

awarding fees that were not equitable and just. First, the trial court awarded

attorneys’ fees before it even made any declarations between Crowell and

Starbranch or determined that Starbranch had any liability at all. Second,

Starbranch was not even a proper party to Crowell’s claim for declaratory relief.

Third, despite Crowell’s bald claim to the contrary, Starbranch did not prevent a

complete and final resolution to this case.

1. The trial court awarded attorneys’ fees before it even declared

the respective rights and interests of Crowell and Starbranch.

“Only after the trial court declares the parties’ rights under the Uniform

Declaratory Judgments Act, [should the trial court address] whether the evidence is

factually sufficient to support a finding that the fees are reasonable and necessary

26

and determine if the award is equitable and just.” VICC Homeowners’ Ass’n v.

Los Campeones, Inc., 143 S.W.3d 832, 839-40 (Tex. App.—Corpus Christi 2004,

no pet.) (Castillo, J., concurring). In support of this holding, Justice Castillo

reasoned as follows:

A claim for attorney fees under the Uniform Declaratory Judgments

Act is not severable from the merits of the declaratory judgment

action itself. See Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex.

App.—Austin 2002, no pet.). “‘That a suit for the statutory attorney’s

fees as a separate action could not be maintained is evident from the

wording of the statute . . . . The attorney’s fees, while not costs,

partake of the nature of the costs of suit and are assessed in

accordance with the judgment’ reached in the proceeding.” Dalisa,

Inc., 81 S.W.3d at 881 (quoting Huff v. Fidelity Union Life Ins. Co.,

158 Tex. 433, 312 S.W.2d 493, 501 (1958)). I conclude that the

reasonableness, necessity, equitableness, and justness of an award of

attorney fees in a declaratory judgment action necessarily are related

to the trial court’s declaration of the rights of the parties. I would hold

that an award of attorney fees in this case must abide the declaration

itself.

Id. at 839.

Here, the trial court awarded attorneys’ fees before it even declared the

respective rights and interests of Crowell and Starbranch. “The purpose of the

[Declaratory Judgments] Act is to provide a procedural device whereby litigants

can obtain a judicial determination of a controversy.” Kennesaw Life & Accident

Ins. Co. v. Goss, 694 S.W.2d 115, 117 (Tex. App.—Houston [14th Dist.] 1985,

writ ref'd n.r.e.) The Act is not a “vehicle to recover attorney’s fees.” City of

Carrollton v. RIHR Inc., 308 S.W.3d 444, 454–55 (Tex. App.—Dallas 2010, pet.

27

denied). In fact, “fees are not permissible under § 37.009 where [the declaration is

sought] solely for the purpose of obtaining attorney’s fees.” Tanglewood Homes

Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 69 (Tex. App.—Houston [14th Dist.] 2014,

no pet. h.).

Because an attorneys’ fee award is merely ancillary to a declaration under

the Act, and an attorney fee award is “not severable from the merits of the

declaratory judgment action itself,” it is inequitable and unjust as a matter of law to

award attorneys’ fees under the Act until a declaration of the rights of the parties

has been made. Cf. Crown Asset Mgmt., LLC v. Short, No. 01-08-00042-CV, 2009

WL 1025729, at *4 (Tex. App.—Houston [1st Dist .] 2009, no pet.) (mem. op.)

(“In the instant case, the trial court’s award of attorney's fees to Short for his

declaratory judgment action was inequitable and unjust because . . . Short produced

no evidence to support his claim for declaratory judgment.”). To hold otherwise

would turn the American Rule, prohibiting fee awards unless specifically provided

by contract or statute, on its head. It also would put the cart before the horse by

allowing a party to recover attorneys’ fees without the court first determining

liability.

For these reasons, the award of attorneys’ fees was neither equitable nor just

and the trial court abused its discretion in making the award. Accordingly, the

28

attorneys’ fee award should be reversed and the case should be remanded to the

trial court for further proceedings.

2. It is inequitable and unjust to award attorneys’ fees against a

person who was not even a proper party to the declaratory

judgment action.

Because Starbranch raised a fact issue on her defense that she has never been

a proper party in this case, it was inequitable and unjust as a matter of law for the

trial court to assess attorneys’ fees against Starbranch. If anything, the trial court

should have awarded attorneys’ fees against Crowell for unnecessarily joining

Starbranch as a party in this lawsuit, “causing her to incur fees that she otherwise

would not have had to incur.” E.g. State and Cty. Mut. Fire Ins. Co., 228 S.W.3d

at 411 (holing it was just and equitable to award attorneys’ fees to a party that was

unnecessarily joined in a declaratory judgment action).

In her response to Crowell’s Motion for Summary Judgment on Liability,

Starbranch asserted that she was not a proper party to Crowell’s declaratory

judgment action. CR740-43. Significantly, Crowell’s evidence did not identify

Starbranch as either an officer or a board member of the Association. CR 217-21.

Crowell’s evidence demonstrated that Starbranch was nothing more than a member

of the Association. CR 181; 211; 260; 302. Consequently, Crowell’s own

summary-judgment evidence raised a fact issue as to whether Starbranch was a

proper party to the declaratory judgment action. Starbranch also produced

29

summary-judgment evidence that raised a fact issue as to whether she was a proper

party to Plaintiff’s declaratory judgment action. CR755-62.

A property owners association, its officers, and board members are proper

parties to a landowner’s claim for declaratory relief. Tex. Bus. Orgs. Code §§

22.221 and 22.235. However, “[t]he members of a [nonprofit] corporation are not

personally liable for a debt, liability, or obligation of the corporation.” Tex. Bus.

Orgs. Code § 22.152. To show that she was not a proper party, Starbranch

explained in her response to Crowell’s summary judgment motions that she was

nothing more than a member of the Association and that she had never asserted an

interest in the Property. CR 740-743.

In sum, it is undisputed that the Association was a nonprofit corporation.

CR 100. It is undisputed that Starbranch was neither an officer nor a board

member for the property owners’ association. CR 217-21. Starbranch testified

that she had never asserted any interest in Crowell’s Property. CR 758. In fact,

Starbranch disclaimed any and all interest in Crowell’s Property. CR 758. Under

these facts, Section 22.152 shielded Starbranch from personal liability arising out

of her participation as a member in the Association. Cf. Reiner v. Ehrlich, 66 A.3d

1132, 1143 (Md. Ct. Spec. App. 2013) (affirming dismissal of Plaintiff’s

declaratory judgment action against individual homeowners due to homeowners’

immunity from liability under Md. Code Ann., Cts. & Jud. Proc. § 5-422); 65 AM.

30

JUR. 2d Quieting Title § 63 (Database updated May 2015) (“An action to quiet title

lies against those who, at the time it is instituted, are the present claimants to the

land under the instruments that creates the cloud.”).

In Reiner, a married couple sought declaratory relief not only against the

homeowners association but also against sixteen individual homeowners in the

community. Reiner , 66 A.3d. at 1134-35. The trial court dismissed the plaintiffs’

claim for declaratory relief against the individual homeowners because under

Maryland law the homeowners were immune from liability as long as they were

acting within the scope of their duties under the homeowners’ association. Id. at

1143. Under Texas law, Starbranch is similarly shielded from personal liability

arising out of her participation as a member in the Association at issue in this case.

Tex. Bus. Orgs. Code § 22.152.

This conclusion is supported by Crowell’s decision to dismiss defendants

that were similarly situated to Starbranch. Like Starbranch, the following

defendants did nothing more that than approve instruments prepared by the petition

committee or another representative of the Association: George L. Parker, Eva K.

Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric

Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell

dismissed each of these defendants from the lawsuit, and none paid any attorneys’

fees. CR26-46; 59-61; 65-68; 72-74. When Crowell dismissed these defendants

31

before obtaining any judgment in the lawsuit, Crowell knew that they were not

proper parties to a declaratory judgment action.

In addition, it is important to note that Starbranch did not even sign two of

the instruments that Crowell sought to declare as void. It is undisputed that

Starbranch did not sign the “Notice of Formation of Petition Committee” 10 or the

“Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens

Association, Inc.,”11 which are the subjects of the first and fourth declarations

sought in Crowell’s Motion for Summary Judgment on Liability. CR20.

Consequently, even if she was not shielded from liability under the Texas Business

Organizations Code, Starbranch could not have been a proper party to the first and

fourth declarations sought against her. After all, there can be no controversy

between Crowell and Starbranch in connection with documents that Starbranch did

not even sign. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)

(“To constitute a justiciable controversy, there must exist a real and substantial

controversy involving genuine conflict of tangible interests and not merely a

theoretical dispute.”).

Viewed in the light most favorable to Starbranch, the evidence demonstrated

that Starbranch was not a proper party to the declaratory judgment action or suit to

quiet title. Cf. Kennesaw Life & Accident Ins. Co, 694 S.W.2d at 118 (holding that

10

CR154-57.

11

CR100-04.

32

declaratory judgment was inappropriate against a party in an action to remove a

cloud on plaintiff’s title to real property, even though the party may have played a

role in creating the cloud, because the party had disclaimed any interest in the

property and was not in possession of the property). Consequently, if a take-

nothing judgment is not rendered, this Court should reverse the trial court's

judgment awarding attorneys’ fees to Crowell and remand for trial.

3. There is no evidence that Starbranch prolonged the case or

prevented a complete and final resolution to this case.

The only evidence presented to the trial court regarding whether it was

equitable or just to assess attorney’s fees against Starbranch was the conclusory

and self-serving affidavit testimony of Crowell’s lead attorney, John B. Shely. CR

386-389.

Shely testified “[f]inal resolution of the suit . . . has been drawn out by the

failure of Starbranch to file an answer for over fourteen months, despite being

served with process, and by her failure to rescind her signature to various

documents at issue in the case.” CR 389. Nowhere does Shely testify how or why

final resolution of the suit depended upon Starbranch’s appearance in this lawsuit

or rescission of her signatures. In fact, final resolution of the suit did not depend

upon whether Starbranch appeared in this suit or rescinded her signatures; it

depended on settlement with the proper parties to the case.

33

Before Starbranch even made an appearance in this suit, Crowell had already

obtained all the relief that she sought through her suit to quiet title and her

duplicative declaratory judgment action. CR345-46. In 2013, Crowell entered into

a global settlement with the Association, its officers and directors. CR866-908

(App. 4). The global settlement agreement removed all clouds of title and

terminated the Association. CR866-908 (App. 4). In other words, Crowell’s claim

for declaratory relief was completely resolved in 2013 prior to Starbranch’s

appearance. CR866-908 (App. 4); 1st Supp. CR 119-22; CR 790-94.

Moreover, as explained above, Starbranch has never been a proper party to

this lawsuit. See Argument C(2). Consequently, despite Crowell’s claim to the

contrary, Starbranch could not have prolonged the case or “prevent[ed] a complete

and final resolution to this case.” CR371. For these reasons, Shely’s testimony is

conclusory and therefore not competent summary judgment evidence. Texas

Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding

conclusory statements in support of a motion for summary judgment are “not

competent summary judgment evidence”).

An affidavit is conclusory if it states a conclusion “without any explanation”

or asks the fact-finder to “take my word for it.” Arkoma Basin Exploration Co. v.

FMF Assocs. 1990-A Ltd., 249 S.W.3d 380, 389 (Tex. 2008); see also BLACK’S

LAW DICTIONARY 308 (9th ed. 2009) (defining “conclusory” as “[e]xpressing a

34

factual inference without stating the underlying facts on which the inference is

based”).

A conclusory statement does not provide the underlying facts to

support the conclusion. Dolcefino v. Randolph, 19 S.W.3d 906, 930

(Tex. App.—Houston [14th Dist.] 2000, pet. denied). A conclusory

statement may set forth an unsupported legal conclusion or

unsupported factual conclusion. S & I Mgmt., Inc. v. Sungju Choi, 331

S.W.3d 849, 856 (Tex. App.–Dallas 2011, no pet.); Choctaw Props.,

L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 242 (Tex. App.—

Waco 2003, no pet.). Conclusory affidavits are not sufficient to raise

fact issues because they are not credible or susceptible to being

readily controverted. Ryland Group v. Hood, 924 S.W.2d 120, 122

(Tex. 1996) (per curiam). Objections that statements in an affidavit

are conclusory assert defects of substance, which may be raised on

appeal for the first time. S & Mgmt., Inc., 331 S.W.3d at 856;

Rockwall Commons Assocs., Ltd., 331 S.W.3d at 507.

Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 670 (Tex. App.—

Houston [14th Dist.] 2012, pet. denied).

Simply put, Crowell offered no competent evidence to establish it was equitable or

just to assess attorneys’ fees against Starbranch.

Crowell offered no other grounds for supporting her claim that attorneys’

fees against Starbranch were just and equitable. Because there is no evidence that

Starbranch prolonged the case or prevented a complete and final resolution to this

case, it was inequitable and unjust as a matter of law for the district court to assess

attorneys’ fees against Starbranch. Bocquet, 972 S.W.2d at 21 (“It is an abuse of

discretion for a trial court to rule . . . without supporting evidence.”); Crown Asset

Mgmt., LLC, 2009 WL 1025729, at *4 (“In the instant case, the trial court’s award

35

of attorney’s fees to Short for his declaratory judgment action was inequitable and

unjust because . . . Short produced no evidence to support his claim for declaratory

judgment.”). Accordingly, the attorneys’ fee award should be reversed and a take

nothing judgment rendered or, in the alternative, remanded to the trial court for

further proceedings.

D. The summary judgment evidence raised genuine issues of material fact.

“The award of attorney’s fees in a summary judgment is improper unless the

evidence of the reasonableness of those fees is uncontroverted.” Guity v. C.C.I.

Enter., Co., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

Because Starbranch introduced the affidavit of Nelson S. Ebaugh 12 and the

affidavit of Eileen K. Starbranch 13 in response to Crowell’s motion for summary

judgment on attorneys’ fees, Starbranch created genuine issues of fact regarding

the reasonableness of the fees that precluded the granting of summary judgment

under Tex. R. Civ. P. 166a(c). Jay Petroleum, L.L.C. v. EOG Res., Inc., 332

S.W.3d 534, 542-43 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding it

was improper to award attorneys' fees in partial summary judgment because

appellant raised a fact issue by submitting a controverting affidavit from its

attorney); General Elec. Supply Co., 857 S.W.2d at 601 (“The only authority we

find permitting the award of attorneys’ fees on a summary judgment does not apply

12

CR 769-94

13

CR 755-62

36

unless the evidence of the reasonableness of those fees is uncontroverted; it does

not apply when, as here, conflicting affidavits from opposing attorneys are

presented.”) (collecting cases).

For several independent reasons, the summary judgment evidence raised

genuine issues of material fact as to whether the attorneys’ fees were reasonable

and necessary. First, the Affidavit of Nelson S. Ebaugh controverted Crowell’s

summary judgment evidence. Second, the Affidavit of Eileen K. Starbranch

controverted Crowell’s summary judgment evidence. Third, Crowell’s own

evidence established the existence of genuine issues of material fact on her claim

for attorneys’ fees.

1. The Affidavit of Nelson S. Ebaugh raised genuine issues of

material fact.

“As a general rule, the party seeking to recover attorney’s fees carries the

burden of proof.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.

1991). “Although courts should consider several factors when awarding attorney’s

fees, a short hand version of these considerations is that the trial court may award

those fees that are ‘reasonable and necessary’ for the prosecution of the suit.” Id.

Whether an award of attorneys’ fees is reasonable and necessary is a fact question.

Bocquet, 972 S.W.2d at 21 (interpreting the Declaratory Judgments Act to allow a

jury, not the trial court, to determine the amount of “reasonable and necessary”

attorney’s fees).

37

In the Affidavit of John B. Shely, Shely testified that $71,354.80 was “a

reasonable fee for the work which has been performed by Andrews Kurth in this

matter as of the date of this affidavit . . . .” CR387. Starbranch controverted this

opinion with the Affidavit of Nelson S. Ebaugh. Ebaugh testified as follows:

[I]t is my opinion that the amount of $71,354.80 sought by Crowell

against Starbranch is unreasonable because Crowell has only served

one request for disclosure on Starbranch, has only served one request

for production on Starbranch, has not taken any depositions in this

case, and has not filed any discovery motions against Starbranch in

this case. Under the circumstances, it is unreasonable to assess

$71,354.80 against Starbranch when Crowell’s attorneys have spent

so little time prosecuting Crowell’s declaratory judgment action

against Starbranch.

CR 771.

Consequently, the Ebaugh Affidavit raised a genuine issue of material fact as to

whether $71,354.80 was a reasonable and necessary fee for the prosecution of

Crowell’s claim for declaratory relief against Starbranch. Engel v. Pettit, 713

S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) (holding that

trial court erred in granting summary judgment because of fact issue raised by

attorney’s fees affidavit of nonmovant). The remainder of Ebaugh’s affidavit

created additional genuine issues of material fact. For instance, paragraphs four

and five of the Ebaugh Affidavit also controverted Shely’s opinion that $71,354.80

was “a reasonable fee for the work which has been performed by Andrews Kurth

in this matter as of the date of this affidavit . . . .” CR770-771; 387. Because the

38

evidence was sufficient to raise genuine issues of material fact, the trial court erred

in granting summary judgment in favor of Crowell.

2. The Affidavit of Eileen K. Starbranch raised genuine issues of

material fact.

In the Affidavit of John B. Shely, Shely testified as follows:

Starbranch was served with the correspondence attached as Exhibit 4-

E contemporaneously when the lawsuit was served on her. She did not

respond to me regarding Exhibit 4-E nor did she rescind her signature

to the documents in issue.

CR389.

In her affidavit, Starbranch contradicted this statement by testifying as follows:

In his affidavit attached to Crowell’s Motion for Summary Judgment

on Attorneys’ Fees as Exhibit 4, John B. Shely claims that, on July 1,

2013, I was served with a letter and its enclosure entitled ‘Rescission

of Real Property Filings.’ However, I did not receive this letter

inviting me to execute the ‘Rescission of Real Property Filings’ when

Mr. Shely claimed it was served upon me. The first time that I saw

the letter and its enclosure was as an attachment to Crowell’s Motion

for Summary Judgment on Attorneys’ Fees as Exhibit 4-E.

CR758.

Consequently, the Starbranch Affidavit raised a genuine issue of material fact as to

whether Starbranch had ever been served with Exhibit 4-E 14, a letter and its

enclosure entitled ‘Rescission of Real Property Filings,’ before February 25, 2015.

Because the evidence was sufficient to raise a genuine issue of material fact, as to

14

CR 475-79.

39

whether Starbranch prolonged the litigation, the trial court erred in granting

summary judgment in favor of Crowell.

3. Genuine issues of material fact necessarily existed because the

trial court sustained Starbranch’s objection to Crowell’s

failure to segregate.

“A party seeking to recover attorney’s fees has the burden to show that the

fees were reasonable and necessary which, among other things, requires the party

to show the fees were incurred on a claim that allows recovery of such fees.”

Goldman v. Olmstead, 414 S.W.3d 346, 367 (Tex. App.—Dallas 2013, pet.

denied). The trial court sustained Starbranch’s objections to Crowell’s failure to

segregate nonrecoverable fees from recoverable fees and Crowell’s failure to

segregate the fees owed by different parties. CR 917. Consequently, as

acknowledged by the trial court, there was a genuine issue of material fact as to

how much of the attorneys’ fees, if any, incurred by Crowell should have been

apportioned to her claim for declaratory relief against Starbranch.

“[T]he need to segregate attorney’s fees is a question of law, while the

extent to which certain claims can or cannot be segregated is a mixed question of

law and fact.” Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston

[14th Dist.] 2008, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 312-13 (Tex.2006)). Once the trial court has decided that attorneys’

fees need to be segregated, only under limited circumstances may the trial court

40

participate in the segregation of attorneys’ fees. Chapa, 212 S.W.3d at 341. For

example, a court may decide as a matter of law whether overcoming an affirmative

defense was necessary to prevail on a claim under which attorneys’ fees are

recoverable. Id. However, “when . . . it cannot be denied that at least some of the

attorney’s fees are attributable only to claims for which fees are not recoverable,

segregation of fees ought to be required and the jury ought to decide the rest.” Id.

Because some of the attorneys’ fees that Crowell sought were “attributable only to

claims for which fees are not recoverable,” Starbranch was entitled to have a jury,

not the trial court, segregate Crowell’s attorneys’ fees.

In sum, as acknowledged by the trial court, the summary judgment evidence

raised a genuine issue of material fact as to whether the attorneys’ fees sought were

appropriately segregated. Accordingly, the attorneys’ fees award should be

reversed and remanded to the trial court for a jury, not the judge, to segregate the

attorneys’ fees. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 523

(Tex. App.—Fort Worth 2009, no pet.) (“remand is required to calculate the

segregated award”).

41

4. Crowell’s own evidence established the existence of genuine

issues of material fact.

Crowell presented contradictory evidence as to the amount of reasonable and

necessary attorneys’ fees incurred by her. First, Crowell introduced the Affidavit

of John B. Shely wherein Shely testified as follows:

In my opinion, a sum equal to $71,354.80 is a reasonable fee for the

work which has been performed by Andrews Kurth in this matter as of

the date of this affidavit [February 24, 2015].

CR387.

In other words, Shely claimed that $71,354.80 was a reasonable and necessary fee

for representing Crowell from February 28, 2013, through February 24, 2015.

Then, Crowell introduced the Supplement to the Affidavit of John B. Shely

wherein Shely claimed that reasonable and necessary attorneys’ fees incurred by

Crowell from November 3, 2014, through March 28, 2015, amounted to

$19,345.50. 1st Supp. CR3-6. These two affidavits were inconsistent with one

another because they each identified a different amount for the allegedly

reasonable and necessary attorneys’ fees incurred between November 3, 2014, and

February 24, 2015. Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938,

941 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“The movant’s own evidence

may establish the existence of a genuine issue of material fact . . . .”). Given the

conflicting evidence presented by Crowell on the amount of her reasonable and

42

necessary attorney’s fees between November 3, 2014, and February 24, 2015, there

are genuine issues of material fact as to the amount of her reasonable and

necessary attorneys’ fees.

E. The trial court abused its discretion by considering evidence filed after

the submission date and which Starbranch did not have the opportunity

to controvert.

A trial court’s decision to allow evidence to be filed after the submission

date on a motion for summary judgment and before summary judgment is rendered

is reviewed for an abuse of discretion. Beavers v. Goose Creek Consol. I.S.D., 884

S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied). Late-filed summary

judgment evidence may be considered by the trial court only upon a showing of (1)

good cause, and (2) no undue prejudice. Caldwell v. Carrollton Air Conditioning,

Inc., No. 07-05-0241-CV, 2007 WL 2390425, at *6 (Tex. App.—Amarillo Aug.

22, 2007, pet. denied) (mem. op.) (citing Wheeler v. Green, 157 S.W.3d 439, 442

(Tex.2005)); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682,

686 (Tex.2002) (“Our rules . . . provide that a trial court may permit an act to be

done after a period prescribed in other procedural rules upon a showing of ‘good

cause.’ Tex. R. Civ. P. 5.”). “Good cause exists when a failure was the result of

accident or mistake and not intentional or the result of conscious indifference.” Id.

“Undue prejudice depends on whether allowing late submission will delay trial or

significantly hamper the opposing party’s ability to prepare for it.” Id.

43

Two days after the submission date on her Motion for Summary Judgment

on Attorneys’ Fees, Crowell filed new evidence, entitled the “Supplement to the

Affidavit of John B. Shely.” 1st Supp. CR3-6. The Supplement to the Affidavit of

John B. Shely identified $19,345.50 in additional attorneys’ fees that Crowell had

not requested in her Motion for Summary Judgment on Attorneys’ Fees. Compare

CR366-480 with CR836-63 and 1st Supp. CR3-6. Significantly, Crowell failed to

demonstrate that her late filing of evidence was accidental instead of intentional or

the result of conscious indifference. CR836-63; 1st Supp. CR3-6. In addition,

Crowell failed to demonstrate that her late filing would not cause Starbranch undue

prejudice. CR836-63; 1st Supp. CR3-6.

Without giving Starbranch an appropriate opportunity to object or otherwise

respond, and less than a week after Crowell filed the new evidence, the trial court

awarded $19,245.50 (of the $19,345.50 sought in Crowell’s Motion to Consider

the Supplemental Affidavit). CR917 (App. 3).

Starbranch filed an amended motion for reconsideration objecting to the trial

court’s consideration of the new evidence. CR 981-1011. In her amended motion

for reconsideration, Starbranch identified her objections to Crowell’s new evidence

and presented affidavits controverting Crowell’s new evidence. CR 981-1011. The

trial court denied Starbranch’s motion for reconsideration. CR 1059-60 (App. 1).

44

Because summary judgment is a “harsh remedy,” the notice requirements of

the rule must be “strictly construed.” Sams v. N.L. Indus., Inc., 735 S.W.2d 486,

487 (Tex. App.—Houston [1st Dist.] 1987, no writ). Starbranch should have been

given notice of when the trial court would consider Crowell’s new evidence. Tex.

R. Civ. P. 21 (b) (“An application to the court for an order and notice of any

hearing thereon, not presented during a hearing or a trial, must be served upon all

other parties not less than three days before the time specified for the hearing,

unless otherwise provided by these rules or shortened by the court.”). However,

Crowell did not provide Starbranch with notice of either a hearing or a submission

date on Crowell’s Motion to Consider the Supplemental Affidavit. Consequently,

Starbranch had no way of knowing how long she had to respond to Crowell’s new

evidence. Under these circumstances, Starbranch was unduly prejudiced.

To give Starbranch a full opportunity to respond to Crowell’s new evidence,

Starbranch should have been given notice of a hearing or submission date on

Crowell’s Motion to Consider the Supplemental Affidavit and adequate time to

respond to Crowell’s new evidence. Without notice of when Crowell’s new

evidence would be considered by the trial court or an opportunity to object or

otherwise respond to the new evidence, Starbranch was unduly prejudiced. Cf.

Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996,

no writ) (“[A]llowing arguments made in the movant’s reply to be considered, after

45

the fact, as independent grounds for summary judgment would subvert the orderly

process contemplated by rule 166a and put the nonmovant to an unfair burden.”);

Extended Services Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469,

470 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) (“To hold otherwise would

permit the movant to take unfair advantage of the nonmovant by permitting the

movant to serve his summary judgment evidence on the nonmovant on the seventh

day before the hearing, thus requiring the nonmovant’s response to depend upon

leave of the court. This would be untenable under our summary judgment

practice.”).

For these reasons, the trial court abused its discretion by entering summary

judgment based upon new evidence that was not supported by good cause and that

unduly prejudiced Starbranch. Accordingly, the attorneys’ fee award should be

reversed and the case should be remanded to the trial court for further proceedings.

F. The trial court granted more relief than was requested in Crowell’s

Motion for Summary Judgment on Attorneys’ Fees.

A “motion for summary judgment must itself state specific grounds on

which judgment is sought.” McConnell v. Southside Independent School Dist., 858

S.W.2d 337, 339 (Tex. 1993). “The motion for summary judgment must stand or

fall on the grounds it specifically and expressly sets forth.” Id. “[A] summary

judgment cannot be sustained on a ground not specifically set forth in the motion.”

46

Id. “[A] literal reading of Rule 166a(c) and [other] authorities indicate that the

motion itself must state the grounds.” Id. (bold in original).

In other words, a movant may not file supplemental evidence to amend her

motion for summary judgment or to raise new and independent summary-judgment

grounds. Cf. McConnell, 858 S.W.2d at 339 (“When a motion for summary

judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which

were not asserted, even if the summary judgment proof supports them and the

responding party did not except to the motion.”); Highland Capital Management,

L.P. v. Ryder Scott Co., 402 S.W.3d 719, 740 n.12 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (“A movant is not entitled to use its reply to amend its motion

for summary judgment or to raise new and independent summary-judgment

grounds.”).

In her motion for summary judgment on attorneys’ fees, Crowell specifically

sought $71,354.80 because, “[a]s outlined in Mr. Shely’s affidavit, $71,354.80 is a

reasonable fee given the actions of Starbranch and other defendants after Ms.

Crowell purchased property intended for her home and other development.” CR

370-71. This amount represented the fees allegedly incurred by Crowell between

February 28, 2013, and October 1, 2014. CR 386-479. Crowell’s motion did not

expressly seek the recovery of any other attorneys’ fees incurred by Crowell. CR

366-72.

47

Without demonstrating good cause,15 Crowell filed her Motion to Consider

the Supplemental Affidavit after the submission date for the summary judgment

motion. Compare CR836-63 and 1st Supp. CR3-6 with CR722-23. As expressly

acknowledged by Crowell, she filed her Motion to Consider the Supplemental

Affidavit to raise new and independent summary judgment grounds that she had

not presented in her summary judgment motion. CR834-35. Crowell submitted

the supplement to the affidavit of John B. Shely to the trial court because:

[It] describes additional fees incurred by Ms. Crowell in connection

with the pending motions on summary judgment as to attorneys’ fees

and for work performed on other litigation activities related solely to

Defendant Dr. Eileen K. Starbranch since November 1, 2014. These

fees are not included in the pending filings.

Consideration of the Supplement will allow the Court to

simultaneously evaluate the most recent attorneys’ fees incurred by

Ms. Crowell along with those previously submitted and will promote

judicial efficiency in resolving matters currently before the Court.

CR834-35 (bold and italics added for emphasis).

According to Crowell’s lead counsel, the attorneys’ fees incurred since November

1, 2014, totaled $19,345.50. 1st Supp. CR3-6. The trial court awarded most of

these fees (i.e., $19,245.50) even though they entailed a new and independent

ground for summary judgment that had not been sought in Crowell’s initial

15

Carpenter, 98 S.W.3d at 686 (“Our rules . . . provide that a trial court may permit an act to be

done after a period prescribed in other procedural rules upon a showing of ‘good cause.’ Tex. R.

Civ. P. 5.”).

48

summary judgment motion. Compare CR366-480 with CR836-63 and 1st Supp.

CR3-6.

The trial court erred by awarding $19,245.50 which was never specifically

requested in Crowell’s summary judgment motion. Tex. R. Civ. P. 166a(c);

Hourani v. Katzen, 305 S.W.3d 239, 255 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied) (“A trial court errs in granting more relief than was requested” in the

summary judgment motion); LaGoye v. Victoria Wood Condominium Ass'n, 112

S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“a trial court

cannot grant more relief than was requested by a motion for summary judgment”).

“When, as here, a trial court grants more relief by summary judgment than

requested, by disposing of issues never presented to it, the interests of judicial

economy demand that [this Court] reverse and remand as to those issues, but

address the merits of the properly presented claims.” Positive Feed, Inc. v.

Guthmann, 4 S.W.3d 879, 881 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Accordingly, this Court should reverse and remand as to $19,245.50 which was

never specifically requested in Crowell’s summary judgment motion.

CONCLUSION AND PRAYER

For the foregoing reasons, Starbranch respectfully requests that the Court

reverse the district court’s judgment and render judgment that Crowell take nothing

on her claim for attorneys’ fees under the Declaratory Judgments Act.

49

Alternatively, Starbranch requests that the Court modify the judgment to

dismiss the claim for declaratory relief and remand for a new trial on attorneys’

fees. Starbranch also asks for all other relief to which she is entitled, including

vacatur of the award of attorneys’ fees when the judgment to which it relates is

either modified or set aside.

Respectfully submitted,

NELSON S. EBAUGH, P.C.

/s/ Nelson S. Ebaugh

Nelson S. Ebaugh

Texas Bar No. 24007139

NELSON S. EBAUGH, P.C.

2777 Allen Parkway, Suite 1000

Houston, TX 77019

Ph (713) 752-0700

Fax (713) 739-0500

nebaugh@ebaughlaw.com

COUNSEL FOR APPELLANT

50

CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word 2007, this brief contains

11,742 words, excluding the portions of the brief exempt from the word count

under Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Nelson S. Ebaugh

Nelson S. Ebaugh

CERTIFICATE OF SERVICE

On September 11, 2015, I electronically filed this Brief for Appellant with

the Clerk of Court using the eFile.TXCourts.gov electronic filing system which

will send notification of such filing to the following:

John B. Shely

Courtney B. Glaser

ANDREWS KURTH, LLP

600 Travis, Suite 4200

Houston, Texas 77002

JShely@andrewskurth.com

CGlaser@andrewskurth.com

/s/ Nelson S. Ebaugh

Nelson S. Ebaugh

51

APPENDIX

Tab Item

1. Order and Final Judgment, signed April 28, 2015 (CR1059-60)

2. Order on Defendant Starbranch’s Motion to Dismiss Action for

Declaratory Judgment and Action to Quiet Title, signed April 22,

2015 (CR1040)

3. Order Granting Motion for Summary Judgment on Attorneys’ Fees,

signed April 6, 2015 (CR917)

4. Settlement Agreement and Mutual Release, effective October 15,

2013 (CR866-908)

5. Certificate of Termination of a Domestic Nonprofit Corporation or

Cooperative Association (Jandor Gardens Association, Inc.), filed on

November 20, 2013 (1st Supp. CR120-22)

6. Tex. Bus. Orgs. Code § 22.152

7. Tex. Bus. Orgs. Code § 22.221

8. Tex. Bus. Orgs. Code § 22.235

9. Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612 (Tex.

App.—Houston [1st Dist.] Apr. 16, 2015, no pet.)

10. McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08-

00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007,

no pet.) (mem. op.)

52

-t/'2312015 4;37:35 PM

ctlrl$ Dilnlel - Dl~trlct Clcti(

H~rrl5 County

l!nvclopc No: 8013488

B).': TOLMAN, TAMMY E

Ftled: 4123f2015 4::37:35 PM

CAUSE NO. 2013·14192

e

ELIZABIITH BOWARD CROWELL § IN THE DISTRICT COURT

§

vs. §

§

§ /fHRt_

JANDOR GARDENS ASSOClA1'fON, IN<.:., § '

GRORGRL. PARKER, £ VA K. J•AltKER, § ( 7)

SARAH WffiTING, RON WITTE, §

LAWREI\CE E.. PLOTS KY, RICK RAMBO. §

FRANCES RAMBO, DAVID D. STOCK, §

ANNAL. STOCK, WYMAN H. HERE."'IDREN, § S5Tll JUDIClA.J. DiSTRICT

MARY HERENDEEN, FEREIDOON §

SHARIF[, SOODY SHARIFf, EDWARD G. §

RTZK, BILLIE lUZK, BENJAMIN LEVIT, §

ERICA LEVIT, GARRETS. ~1ADDERRA1 §

GEORGE W. HAWJOlliS, EILE£N K. §

STARURANCH, CA11JERINE A. MORGAN, §

GEORGIA W. IDTCHCOCK, JAMF.S §

CA:Rl''ER., WALTER J. TAYLOR, ANITAJ. §

TAYLOR, AND ERIK 1\'IAZZIOTIA § BARIUS COUJ\'TY, TEXAS

On this day, 1tle Court has considered Defendant Eileen K. Starbranch's \'Starlmmch")

(i) First Axnendcd .Motion for Rcconsiderntion of Order Gnmting Plt\intift's Motion for Sttmm:rry

Judgment on Attomr:y$' Fee:,<~, (it) SupplemcmL tO Dllfendartt Stal'branch' s Moti'On to Dismiss

Actioo for Declaratory Judgment and Action to Quiet Title, and (iii) Defendunt Staibranch's

1059

On April 6, 2015, the Court entered an order resolving Crowell' s claim for declaratory

relief and awarding Crowell reasonable and necessary trial attorneys' fees in the amount of

$26,462.00 (the "Summary Judgment Order'}.

On April 14, 2015, the Court entered an Order Approving Nonsuit Without Prejudice as

to aU of Crowell's claims not addressed in the Summary Judgment Order.

On April 22, 2015, the Court entered an Order on Defendant Starbranch' s Motion to

Dismiss Action for Declaratory Judgment and Action to Quiet Tftle, finding that Starbranch' s

request for dismissal of Crowell's action to quiet title was rendered moot by Crowell's Notice of

Nonsuit Without Prejudice, and dismissing Crowell's claim for declaratory relief as moot

because it was resolved by the Summary Judgment Order.

It is therefore ORDERED that Starbranch's Post-Judgment Motions are DEN1ED.

It is further ORDERED that, for the reasons set forth in the Summary Judgment Order,

Plaintiff Elizabeth Howard Crowell is awarded attorneys' fees in the amount of $26,462.00 from

Defendant Eileen K. Starbrancb.

This is a Final Judgment.

SIGNED this 2 'irday of &-;!

2

HOU:3547662.t

1060

4/17/2015 2:18:31 PM

Chris Daniel • District Clerk

Harris County

Envelope No: 4935907

By: FLORES, DANIEL

Filed: 4117/2015 2:18:31 PM

Cause No. 2013-14192

Elizabeth Howard Crowell, § In the District Court of

§

Plaintiff, §

§

v. §

§

Jandor Gardens Association, Inc,, George L , §

Parker, Eva K. Parker, Sarah Whiting, Ron §

Witte, Lawrence E. Plotsky, Rick Rambo, §

Frances Rambo, David D. Stock, Anna L. § Harris County, Texas

Stock, Wyman H. Herendeen, Mary §

Herendeen, Fereidooo Shari£, Soody Sbarifi, §

Edward G. Rizk, Billie Rizk, Benjalillil §

Levit, Erica Levlt, Garret S. Madderra, §

George W. Hawkins, Eileen K.. Starbranch, § JURY TRIAL DEMANDED

Catherine A. Morgan, Georgia W. Hitchcock, §

James Carper, Walter J. Taylor, Anita J. §

Taylor, and Erik Mazziotta, §

§

Defendants. § 55°' Judicial District

Order on Defendant Statbranch's Motion to Dismiss

Action for Declaratory Judgment and Action to Quiet Title

Pending before the Court is Defendant Starbranch·s Motion to Dismiss Action for

Declaratory Judgment and Action to Quiet Title. The Co11I'1! has considered the motion and the

response filed by Plaintiff Elizabeth Howard Crowell, if any, and finds tb11t Starbrancb's request

for dismissal of Plaintiffs action to qwct tiUe was rendered moot by Plaintilf's Notice of

Nonsuit without Prejudice filed on Aprll9, 201 ~ ; hC>wever, Starbranch' s request for dismissal of

Plaintiff's claim for declaratory relief is well taken. Accordingly, it is hereby

ORDERED that Plaintiff Elizabeth Howard Crowell's action for declaratory judgment

that she filed against Starbranch is dismissed because the claim is moot.

0 2-z

Signed on --~--"--'1--------'' 2015.

1040

CAUSE NO. 2013-14192 tl

ELIZABETH HOWARD CROWELL §

§

IN THE DISTRICT COURT OF {1/A

§

§

vs § HARRIS COUNTY, TEXAS

§

§

JANDOR GARDENS ASSOCIATION, §

et al. §

§ 55TB JUDICIAL DISTRICT

ORDER GRANTING MOTION FOR S UMMARY JUDGMENT ON

ATTORNEYS' FEES

Upon consideration of Plaintiffs Motion for Summary Judgment on

Attorneys' Fees, Defendant Starbranch's 1response and objections, Plaintiff's reply

and supplement, t he Court finds that the Motion should be granted to the following

extent:

Plaintiff Elizabeth Howard Crowell is awarded judgment for attomeys' fees

in the a mount of 26,462.00, from Defend:mt Eileen K. Starbrancb. This amount

reflects the unrebutted $19,245.50 set out in John Shely's April 1, 2015, affidavit,

and $7,116.50 awarded from the amounts requested in Plaintiffs February 25,

2015, motion. To the extent the full amount requested by Plaintiff was not

awarded, the Court is sustaining the objectlons raised by Starbranch.

IT IS SO ORDERED.

SIGNED on the ~ day of A~

FILED

Chris Daniel

Dlstrlct Clerk

APR 0 6 2015

nme~~--,~~~~---­

Hanlo County, Texa.

By-----~~-----­

Deputy

917

SF.TfLJ:M f.ST A GR ~F.MENT AND ~flJTlJAt R F.L f.i\Sf.

Thi !' Se1tlemem Agreement and Mutual Relea~ (the "Ag.reemC7lt'") is bet\H!ffi: Elizah<lth

Howard Crowd! ("Plaintiff-). on th~: one hand. and Jandor Garden.s Association. Inc.. Sarah

Whiting;. Ron \,\'iuc, Lawrcnc.c E. PlotsJ..')', Rick Rambo, Frances Rambo. David D Stock, A ona

L. Stock. Wyman H.. Hcr-cndoco. Mary Herendeen. Fercidooo Sharif1. Soody Sburiti. Edward G

Rizk, Billie Ri.d:. Renjamin Levit, Erica Levit, Walter J. Taylor, atld Anita J. Taylor

(" Defendants.. ). oo tht: oUll'f hand (Plaintiff and Dclcndants are coHI!lelivcly referred to as 1hc

··rani~~}. Thi!- Asreement shall be effecttve a$ of the d:ue s-et forth belo\v (the .. Effective

Date").

Rt;C rrA I.S

1\ WI IEREAS. ~ertai n di sputes. claims.. and alle~ed cauSts of itCtiOtl h:w.: existt:xl by ;Jald

between PlaintiiT attd Defendants, \vflich disputes. claim&.. and alleged causes of action

ar<~ etut of. or are. 1d atcd to, teal JlMflerty loc3ted \~it h in tht: J3ndnr Garden,.

subdivision. including disputes relating to the deed restrictions applicable to JandOf

G:irdens. real propt!f"ty llliugs pemtinlng to ptoperty within Jandor Garde~~s.. a"d

Defendants' efforts to form a propert¥ owners· as.'!ociation io Jandor Gardens.

U Wl!CRE.AS, a:; a result of such di sputes. c l<tim~. and alleged caus~ of itction. ce:ru1in

litigation was. in~tiiUfoo by Pla.inti iT against Defendants in Cause No. 2013-1 41 92., styled

F.li=ulx:th lfowurtl Cn11a·c:ll ''· ./(IJI(/or r.urd~ns A.v.Yot;iulu#t, ""··· ~I al.. in tht: 55th

Judicial District Coull of Harris \ QUill)', rexall {the WLaWSIJit"). Reference is lterelJy

anadt: to the pleadtng:s 011 tile in tbe l..<m-suit for a lnore tboroush de:s.criptioo of the

diSJltltes, claims, and callses of action made the subject of this A:;reemem.

C WHf.RE.i\ S. Defc::ndan~ Rick Rambo and F~met:s Rillnbo filed oounterclaims asain~t

Plaintiff in the La\~Sui t (the "Coumerclaim''). Re1~rence is ltereby made to the pleadings

on tile in tbe Ulwsuit for a otorc thorough des-cription ot'the di.l>'J)Utes. claim~. and caw;es

of action made the subject of thi s Agreement No ()(her Defendantslw!sides Rick Rambo

;mel Frctne<:s Rambo filed any <:I aims or all ~ed cctusc.s of<lctioo <~g~tlnst Plaintiff

0 WHEREAS, Defendants' Counterclaim included an applicaliort for injunctive relief,

whieb the Coun denied. and wbkh is. th~ $\Jbject of an interlocutory appeal. Citus.e No.

01-13-00862-CV, style(l /?!ck Rmttho and Fraltct·~ Rambo 1'. J~!J:obelh HCIIt•a.rd Crowell,

in th~ First Distria Court of Appeals. Hou~>1on. Te;(as (U)c - Appenn. The L1w1mit. the

Cet•nterc.taim. :uld the Appeal may be coTi ectively referred to as the ''Liti ~'ltion.~

E. WllER.t:AS. tbt: Court grumed Plai.ntifrs M.o1ion for Summary Judgment and in tlmt

~rd signed Orders Or\ Augu-st 19, 20'13, and Or\ Oe1<lber 8, 20 13, declarius thattlte 1eal

property filings lit issue m the Lttigution have no force and effect. arc nullified. and arc

oo lonser a cloud on 1he title to, an<l •isht of ownetship ('}f, the pt'O{)ert)· at issue

Reference is hereby made to the AU,guSt 1<>. 2013 and OctoberS. 20IJ Ordtrs for a. more

thoroush deS(;ription of the 1eal ptQJ)erty filing.s at issue ial the L.itisalion

866

Plaintiff002761

F. WHEREAS, Defendants deny ar1y liability to PlaintitT for a.ny disputes, claims, or alleged

causes ofactiou made the basis of the Litig.1tion.

G. WHEREAS, Plaintilf dMies any liability to Defendants for any disputes, claims, or

nllcgcd c.aus<!s of action made tltc basis of the Litigation.

H. WHERF..AS, the Panies desire to forever settle any and all matters in comrove~

between them that arise from or relate to the Litigation ns of the Eff(:ctivc Date.

NOW, TUER.EFORE, for :wei in consideration of the afotes3icl premises, m u tt~al

covenants, agreements. acknowledgments, conditions and representations set forth herein

:lrltl for other good and valuable consideration the receipt and sufticiency of which is

hereby acknowledged, the Parties do hereby agree as follows:

AGREE.MENT

I. Setde1neJJt Pay ment I Oosing.

Defendants will pay Plaimifr the amoum of Two Hundred Thousand Dollars and NO/I 00

($200.000.00) by cashier's check mHdt: payable to Eli~abeth l.lowurd Crowell (l h~

"Settlement Payment.,). On or before November 14, 2013, Defendants ~hall delivelf lhe

Settlement Payment to Daryl Bristow. Also on or before Novembt!t 14. 2013, Plaintiff

shall submit thi~ Agreement as well as final copies of all documents attached hereto to

DiLI)'I Uri ~aow 1\11 Parties sl1all execute this Agreement on or before November !4. 2013

2. Di~mi~aJ of Litigation.

Within dgllt ($} days after tl1e receipt :uld clearing of the check rcpres~ntins tJr.:

Settlement Payment and full e.xeclllion of this Agreement, and in, no evem later than

ovember 22. 2013. the Parties shall direct tbeir attomeys to tl le. <trtd tlteir attorneys

11hall file, an Agreed Motion 10 Dismiss with Prejudice seeking the entry by the C:o1.111 of

an Order disrnissi11g with prejud1ce aU claims and causes of <lc:tion asserted in U1e

Lawsuit, includi ng the Counterclaim , such Agreed Motion and Order 10 be in the fonn

<ltt<lched hereto as E.'(hibir A aud incorporated bereill by reference.

On or before November 22, 20 13, Defendants Rick and Frances Rambo will di smi~~ the

Appeal w1th prejudice.

3. Term i.nalion of Assoc.ilHion.

The Dcfendll!lts will tci1Tiinate the Jandor Gardens Msociation (the .. Associatio11") by

fllins a Certific~ t e of Tem1ination of a Domestic Nonpr'ofit Corpor11tion or Cooperative

Association with the Sccrctmy of State in the fom1 atlt~chcd m; exhibit B. All fees and/or

costs associated with tem1ir1a1ing the Ass-oeia1 i1~r1 shall be borne by the Association or the

Dd'endants

867

Plaintiff002762

4. Filing orOrdel'.

The P<Jrtics acknowledge and agree that Plaintiff will me a certified copy of the Order

signed October 8, 2013, which i!l attached as F..vhlhll C, in the real property re.cords. The

P~trtics acknowledge and agree that they bavc waived nny right to appt-'9.1 the Order.

). Applicable Deed Resc.·ktlons.

All P<trtics ht."rCtO acknowicdgc that the J()29 deed rcstncuons or Jandor Gardoos.

recorded in Volume 8 ~ I , Pa~es 285-286 of the Deed Recor-ds of TT:~rris Coun ty. Texas,

remain in effect, and all Parties hereto agree to comply with the deed restrictions.

6. Ad ditional Terms .

a. Piaintiffwil l instnJct her builder to make reasonable efforts to address the privacy

conoerns of Defendants Anna Stock and David Stock regard[ng thei r downstairs

bathroom window.

b PT.:Jintiff has l'l:p r\!.sen t ~d that landscaping has been provided for in thc budget for

her intended development of tlH~ property a11d agrees to landscape the property

within that bodset aJl<l in an appropri ate manner· for the S\rbd~vision .

c. Plaintiff agrees to instruct her builder not to aim any ~terior lighting directly at

the hornes of Defendants David Stock and Anntr Stock or Wyman ller\ttdt:~Jl and

Mary Herendeen and agrees not to aim any exterior lighting directly at the l1ome

of Rick Rambo and Franees Rambo.

d. Defendants David Stock and Anna Stock, Wyman Herendeen and Mary

llerendeeo. and Rick Rambo and Frances Rambo agree 110 1 to <lim any t:<Xtt:rior

lighting directly :u any of lhe houses located at 5324 Jnstitote Lane, 5326-A

lnstittJte Lane. or 5326-B lnstitute Lane.

e Plainti!T agrees to complete the construction of the three single-fami!,y residemial

houses located at 5324 Institute Lane, 5326-A Institute Lane.. and 5326-ll ln:stitutc

Lilne in a manner that is re:l$onably equivalent to the house~ reflected in, Exflflm

D.

The Parties acknowledge that the terms set forth $1 subsections (a) through {e) above are

personal covenants and e.xpressly ttgJ';(! that none of the terms :set forth .;t subsections (a)

through (e) shall be deemed covenan ts running with the l and, nor shall they bir1d any

future purchlllSers or owners of any property.

7 No Admi~~ion of Liahi.litv

l'his A&rrecmcnt is a compromise of disputed mutters to avoid the furtl)cr expense and

inoonveni er1ce of litigat-ion, and shal l M t be oonstf\Hl.d as an admission ()f liabi li ty ()r

wrongdoing by any Party hereto which liability or 'vrongdoing all Partie.-; Cl<prcssly deny.

3

868

Plaintiff002763

&. Rele.u e hv PlaintiiT.

rn consideration of the mutual promises., considcratioo. and covenants described herein.

Plaintiff ltereb}' rele?a~s. acquits, and forEwer di~haJges Defendants and their insurer(s)

from and against any nnd nll disputes. claims. dt.'tllnnds., causes ot' action. debts..

liabilities, obligations. judgments, or $uils in equity, tort <Jr contract., of whatsoever nature

m common law, statutory or othervvisc. or any other legal d"-'Of)'. arising out of or rdatcd

to the circwnstances that fom1 the basis of the Li tigation, known or unkn(YMI, now

existing or that might arise hereafter. including all claims or causes of action tbm were

assetted or could have beel"' assened i t~ the Litigation

9. Rdt :ue bv Defendants.

11"1 consideraliOlt of tlte l"'lulual promises, considerali011, and oovenauts described herein,

Defendants het'eby release, acquit. and fOfC\' C3' discllarge Plaintiff from and against any

and all di 1)\rtel... elairi"'S. demands. caustz of ;lctioo. debts. liabilities. oulisatioos,

judgment~, or suit!l in equity, ton or contract. of whatsoever nature .at common law,

statuto!)· or olft.;!r"" ise. or any othe-r legal lh.;!ory. arisittg O\tt of or ret:ned to tho;!

circumstance~ that form the basi~ of the Litigation, known or unkmJwn, now existing or

that migHt arise herc!l!ftet, in<.-1uding all claims or C<'tuses of a~tion that wen~ asst:rted or

could l1ave beerl asserted in the Litigation.

l 0. AddiJiqmll Arkul)wJ£(1gs:uu; n!s,

In consideratjon of !he murual promises. consideration. and covenants described herein,

and in addition to the: n:lcasc set forth m paragraph() above. Dcfendnnts Rick l.{ambo and

Frances Rambo hereby acknowledge and agree tl1at Plainti iT is released from any alleged

cunlt<lct wtittc11 Of urul , or <1ny ·utiJcr tlJcory or <llh:gcJ 01USC uf aclimL rd<1ling \u Ibe

Jandor ('.ourt Replat No. 1 and EX1ension, dated January 2010

In consid~r<ltion of the mutual promises, c.on:sideration <md CC»·enants described herein.

and in addition tO the release set forth ir~ paragraph 8 above, Plaintiff hereby

<~cknowled~~.s and agrees that l)cfelldants Rick Rambo ;,md Fnwces Rarnbo are released

fi'<)nl any allesed oontrnct, written or oral, or any other theory or alleged cause of actjon,

relating to the J;rndor Coort R~ lat No 1 and Extension, dated J;rnuary 2010.

l'bt: Parties n:spoctivcly rc:present and wamtm tbut th(! Purties own and hold the claims

relea!!ed in this Agreement. and that they l'lre fully a~Jthori%ed and .emrlowered .to fully

relCiliie and 1.\Xtinguish all of the claims <1nd rights releal!ed hcn.-in

12. AuthoriLy nnd Auorov;d~

Eacb of tile sil:-'llatori cs reprcsCJlls and warrants that he or she has read und fi1lly

underst:~nds this A::;.reernent. is duly aothori~ed to fully <~nd comJ)lelety r~olve all

disputes betw<:cn the Parties tlmt arc tbc subject of this Agr<:emcnt, to mnke this

4

869

Plaintiff002764

Ag_reemem, and to bind to the terms and conditions contained in this Agreement the

(.'tltity or person on whose belt<tlf h<: or sbe purports to act in the capacity identified

below. Each of the signatories further repre.~ents and warrants that all corporate or othev

npprov<tls necessary to ent~r into this Agrt'Crncnt have bc~n obtain~d .

13. Gi)venting L:lw.

The validity. construction. interpretation. and adminisrration of this Agreement shall, to

the extent the particular l!Ubject matter is controlled by state law, be con~nred, controlled.

and govemed by the substantive laws of the State of Texas, without regard to the

c¢t~Oit:ts of l~w principles thereof.

14. D is put~ Resolution.

If a dis,nue s}!()(rl cl;~rise rel.,tint; in any "11)' to thi A~eem~nt, the Parties asree promptly

to atlempt to resclve same by phone conference \\ith Daryl Bristow. If the PaniCS" cannot

re:K)lve their diOer~Tl<ies by said pl1one eonfelet~ce.. thet1 the dispult: will be resolved by

Davy! Bristow in binding ad hoc arbitration pursuant to the Commercial Rules of the

Americar1 Arbitration Aswciation (AAA Rules) If Mr. Ori tow ig unwillin~ or unable to

~tve as an arbitrator, then the Panies will submit to arbirration by a ~ingle arbitrator in

l fouston. Texas, und~r the AAA Rules. To the extent 11ny di!;putt i~ submittt:d to binding

arbitration. the pre\'ailin_g party s.hall be entitled to all rea~nable.anomey.s· fees and co~ts

incun'eclln cooneclion \\;{n tbe di spute

l S. Constntdi()ll,

The l'artics ~n::scnt and ~nx that tht: lanKuage used in thi~ Agnxment is the ~suit of

arm~-lcngrh ba~nins bemoccn sophisticated partie$, that the Panics c.hooe the langllagc

herein to· e.-.;press tl1eir mutual iJ1tcnt. and that u<.1 rurl! of stric~ construction shalJ be

applied against any Pany . The Panie$ further repre11ent ancl agree that they have

thoughtfully and voluntarily n¢gotiated the tc:m1s of this Agreement with equal input

from eacT1 Pany, and th at this Asreemen r shall not be construed agl\ins! any Pany for the

benefit of any other Party bilsed on <In assertion of :superior bitrgaining po""~r. adhesiou.

du~ ()1 any ~imilar 1hoory

16. ,Rtn resrntatio~~:s Regarding Nc:goJin!ing th.c M.1·ecnum1.

The Pan.ies exp~ly acl:ttO\\ledse Md represem hereio that they have carefully

rcvicwt!d tllis Agreement. tltat they underswnd its temlS and effect, thal they have h<td the

OJ)I)onunity to seek legal acl\lice and were reJ)fe~ented by e.-:perie11ced counsel with

respect to tJUs Agreement. lllld that they have rcociv~d ind~pend~nt lcgaJ advice., have

conducted such inveStigation as each of 1hem and 1heir cou11seJ thought app!OJ)riate, and

bn"e relied wholly upon their own judgment and knowledge and they have not been

influenced w arty extent whatsoever in making this Agreemem by any represent;Jtion or

statements made by any otbco Party or anyone acting on behalf' of any other Party.

5

870

Plaintiff002765

17. Consider ation.

The Parties represent and U:g.T<!C that tbc consideration stated hcrcin is contractual and not

a mere recital

IS. lntegr:aJi:On I EntiJ·e AgrccmcJtt.

This Agreement constituter< the complete, final , integrated agreement between the Parties

with regard to the settlement or

their di spute and the matters released herein. and

supersedes and canoels all prior Or contemporaneous nesotiatic;ms, drafts., offers, COllnter-

offers, agreements, understandings., discussions, or representations, written or oral,

regarding the subje\..'t matter hereof, including the CoMidentia1 Mediation Settlement

Agreemem.

19. Attor nevs' Fees and Expenses.

T he Parties acknowledge and agree that, exoept as provided in thi s Agreement, each of

rhem shall bear rhei r own costs, expenses and taxes and attorneys' fees arising our of the

Litigation and the negotiation, d!afljng and execution of this Agreement.

:w. Counterparts, Transmission bv Etnail or Fax.

Thi s Aye.ement may be executed in counterpa..ns. l f any signatory to this agreement

el oct~ to provide his/her sigr\tlture l>y em;)il or fax. M email or f;r\: transmission showing

that the signatory l1as signed this Agreernem shall be the cqtJivaJent of an original

$i~n"-tu re for al1 purposes

21. Notices.

1\ll notices that any Patty to this 1\ Sfccmem may be required or may wish to give in

connection, wi th this Agreement shall, be addressed to counsel: of record at the addresses

set fortb below (or at other sucJ1<lddresses <tS rn~\y be designat~ by writteJJ notices gtveJl

in the manner designated herein) Such notice or notices shall be given by personal

delivery, by ernaH. or by depositing such notices. Vl<\ c~tified US. Mail. Return Rece1pt

Requested, and, if so mailed, shall be deemed and presumed to have been given on the

third bu:siness day following the date of rnaili•~g. The addresses of the Parties uutil furtb~r

notice arE):

a Plaintitl' Elizab~th llownrd Crowell. c/o John U. Shely, Andr~ Kurth LLP, 600

Travis, Suite 4200, Houston. Texas 17002.,Jshd yra_rotdrcwskurth.com

b. DefendwtllS Jandor OnrdcllS Association. lnc.. S<rrah Whiting. Ron Witt~.

Lawrence E Plotsky, Rick Rarnbo. Frances Rambo, David 1), Stoc'l.:, Anna I,

Stock, Wymun IJ. llen:ndi}Cn, Mary Herendeen. Fereidoo11 Shunfi, Soody Shurifi,

Edwatd G Ri~k. Oill ie Ri%k, Benjamin tevit, F.rica l.ev-it. Waltel' J Taylor,

artd/or Anita J. Taylor, c/o Eric Li pper. Hirsch & Wcst.hcimcr, J> C. 1415

Couisiana. 3CJII:i Floor, Houston, T~xa.s 77002, .e/ippt>r '§lm·svhwest.com.

871

Plaintiff002766

IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set

forth below.

EFFECTIVE DATE: October 15, 2013

[end of page]

7

872

Plaintiff002767

IMPORTANT: READ TlilS AGREEMENT ANU CONSULT WJ'I'H YOUR l..A'-VVF.R

JJI!.:fORE SlGNlNG!

THE STATE O.F TEXAS

COUNTY OF HARRIS

OE.FORE ME, the undetsij!;lled authority, onlhi~ day personally appeared ELT7..ABETH

HOWARD C)t0\"'ELL, known to me to be tl~e person wl1ose nam" is subscribed to the

fnrcgoing instrumem und acknowledged to me that she execute-d the same for the purpose& ruld

eom•idt•ration thet-ein exptt:sllt:d, aod in the capaeity tl)etein stated, and as h~r act and deed.

d.:!.

GIVF.N \JNDF.R MY HAND AND SF..AL Of OFFlCH lbis __L_~.~ day of

__jl~.tt--···---' W 13.

___.._______ -- _,. ,.......,_.,_ ...__ .. __ ........____ ______

...,...__ _ ... ___

........""""'"'_______ ,_______,,,..... _...,..,...,..._,_ ..._._____ . . . .............. ...._.. ................,.

~

_

.

_

-

·

-

·

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·

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873

Plaintiff002768

IMPORTANT ~ REAl} TJJIS AGRJ:o:f:MENT AN:O CONSULT Wfl'fl YOUlt u \.WYF.R

RK"Ii'ORE SlGNlNG!

JANDOR G.ARDE'NS ASSOCfATlON, INC

f?.·ic..k @etM-ko ___ _

l itle: ~----'-

'bir-<,.h-r

Signature:

TtH~ STATG Of 'l CX/\S

C'OUNTI' OF HARRIS

_ _,,_R

BEFORE

_. 1'ck_

Me, 1hc

f-1!.,,....,.1~

GARDE:"'S ASSOCIATlON. l!';C., knc.mn

undersig~K't!

t.~ .

tll

_

authority. on 1his day p.:f"\nnall~

~.( r-tu:f·~r- _____ ,__ _

.lpt~arcd

ol .lA 'WOR

me to he: the pet!{llll \.\h<JSe nam" '' suh~crilx-d tn

and c.msidertHion 1herein expressed. and in the c~pnciry tht.>rdu s~.ated. tul•.l ~s lw; I·:! I acr .mel

deed.

(i!VE>J UNDER MY rl!\NO AND SEAl . or OffiCI" ~hi~ --~ ~

---~4!1<!'~,;1. / , 2U I J.

-~~/.~~4~~

Notary Public 1)1 allU 11ol'

'fbe Stale of J exa-;

. - ---------------...... ··---·"'' ,,_,__ ........-.. , -

874

Plaintiff002769

t·MI>ORTANT: IUt~l) nns AG~t<: I~Mfi~NT AND CONSU L T W ITH 'YOUR L AWYER

JJ'FJ'OR F. SfGN!NG!

THE STATE OF TEXAS

COUNTY ()F I fAlUUS

HFFORE ME, the undersig.oed authority, nn th1s day per~onally appe<J.rod SARAil

cxprc-:>sed. and.in the capacity therein $rated, and. m; her act and deed.

Gi VEN UNDER M'\' BAND AND SEAL OI·~ OJ'FlCF !his /t;>

----'--

day of

___ f.'!_ <l if_t!M h !-:tt ................ 2013 .

........................................................................... ·---- ---·--------~-------- ------·-----~-----~--- -------------------··-·-- ·· -- -- -·-- ---

875

Plai ntiff002770

IMPORTANT: READ THIS '\ GREE:\1E~T AND CONSUl~T WITH YOl n LA\VYER

BEI~ORE SJGNING!

Hy:

THF RTA TB Of tEXAS §

~

( ·ou;--n Y OF HARRIS §

BeFORE fvfE_ the unctersignc:d authority. on this day personaII.' appcar.:=d RO~ WITTE.

k.uo-.\ n tt) me to he the person wltt~M." ~r<UTJe [-.; subscribed to the foregoing in'>tn.unent :1.nd

GIVEN UNOF.R MY HA"ff) ANTI SEAL OF Off iCE this ____ [4 '2,_ day of

1\ I() 'v-r; Yn ~~ ')Q I 3

_;_

I "_' - - - - - ------"' .. .

U:~~J -df!-~:6 .

N()iary Puhlic In u.nd Por

The Stat~ of Texas

!J

- ·-· · -- - --~,-- · - ...... . ..... ..... .................... •• _ . . - - - - ... --·-·--·""'·~""'"..- · ··- ··· - · .............. ..... . . - . . ...... ....... ...... .. ..... . ....... ...... . . . ..... ... .. \ .''1'\\......\ .

876

Plaintiff002771

IMPORTANT: READ 1'HIS AGREEMENT ANll CON'SlJLT WITH YOUR Lt.\WY:ER

BEFOJU!: SIGNING! _, .JP bJ-1£)

By: ;~~VI IJ::'IJ(l~VJC

tf6<wRENCE E. PLOTSKY /

THE STATE OF TEXAS §

§

COUNTY OF HARRIS §

BEFORE ME. the undersigned authority, on this day personally appeared LAWRENCE

E. PLO'l'SKY. know.n E(l me to be the person whose name is subscribed to the foregoing

instrwnent and acknowledged to me tb<rt he e:t~\lted the same fur the purpo~~ and

oonsirler11tiou therein el!.pre!>~ed, alld io tlte capacity lh~rein stated, arJ.d as his aot ond deed.

r GtVEN tiNDER MY HAND AND SEAL OF OFFICE this /'J b day of

/}/17/C)I.. /::uvL

~-------·-

2013.

__/::~~i&::;__)-

/ )

Notury .Public In ilnd For

The State ofTe.x.as

12

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.,...,..,,~,,,,,,,,,,.,,,,,,,,,.,,,, ...,,.,.,,.... -----~~~-.....--- _

...... ............-...---....-....-..... -.-----

877

Plaintiff002772

IMPORTANT: Rt-:AO TlJIS AG REEMENT ANO CO~Sti LT WITH \'OCR J_\\VYER

RF..FORF.. SlGNlNG!

rHE STI\Tf: OF TEXAS §

COUNn· OF HA RR,lS *§

BEFORE ME. the undcr~ignl!d au:thonty, on !.his da) per:-N)ally ~[ip~at ~d RICh.

RAMBO. known to me to b.! the persuu whose name is subscribed to the f,)r-~going instrument

aml. ad.-ntwtleJ gt.-d tn me that l1e exe..:uted thc. same for tht~ purposes and constde.mtiou therein

tlXpressed. and in ·the capacity therein stated, and as h is <~t1' a nd deed

G£VE~ UNDFR iVJY HAND AND SEA L OF OtFilT this .-...../.~- tky ,,r

'/fl~4-~J .:w11.

- - -- ----------·--··------------. ____................-......_.._.

878

__ ____

.

Plaintiff002773

THE STATE OF ·r LXAS §

:;.

~

COUNTY OF I·IA'RR IS §

expressed . and in tile eupacily thertrin ~lal~d, m:ul m> her act and deed.

GIVE"l U:-JDER MY HAND AND Sl!J\.L OF OHlCE thii'

..ffi·t¥1-'?>l-~-· 2013.

/J P;/.:? ./'A·-....

t'~f.~ ?.:.!::::. .:f:::.~-!'..!!:"ii.?.

Notary Pt•blk !n ::1nd F01'

1 he Stale of Texas

l4

="'~-----·· --·----·--...------•··-••. ' '"'..

"''''''''''v•••••••• ••-....... •• _ _ _ _ _ _ _......,_,..,....,,..,....,,,,,,,.,, .. ,..,,_ ,,,.,,,,,,, ........- - -· · •

879

Plaintiff002774

J liE S'l ATf Of~TEX.~S

'COtlNlY 01· l-1 :\RRJ~

STOCK. knowl'l lj) me I:!J be Ole p~rson whqse Hl).IHC is subscrib<.<-d l(J ihe ro.r~~goin8 inslmm<.illt

~nd ackm~wlc-dged 1t1 me ihat he executed tbe same for 11-~£ purposes and t~CinsidcmtmJl therein

ci

CiTVEN UNDER MY HAND AND SEAl. OF .OFFICE this __ _/jL_ _'~·:___ dllY nf

/ (j ·'1

_ _L;_;£,/~~~~~-.~. . ,.LY.__ ~'t8t.~~

Notary Public ro and Far

1lw ~'tate of Tex,;1~

~------. ·-- --~-- ...

----~ ...

·-~·-...---·"- ....

- -·----~- ......... - .... ~,., ......................................................................................................... .......................................

880

\

Plaintiff002775

B1PORT ANT: RE4D THTS AGnEii:M~T AND CONSULT WITH \'O!JR L AWYER

BEFORE SlGNINGt /] ~.::.::..

By: <...#u.:-t;~/- ·~~~P,J(:'-b· ... -

Ai'it"N i\ L. STO K

THC STATP OF TF.X;\S. ..§

§

('OlTNTY OF H..~t.RRlS

*

BEfORE ME, tb.:- undc:rsign~u authority. on th.is day pcn;onally apr--ure,: /\Nl'\A 1•.

STOCK. known Lome to be. the person whose namr.! is sub~eribed to tbe fcm~gl,iU<J illSI.rwm:nt

expresRe<l, n.nd iP ffle capacity thercin stntcd, and l1S 'her act nnd deed.

'f:t,;:{_

GIVI!N UNDLR MY HAND AND SE.\L Of OFPlCE this _Lfi __. __ day of

j'\.~'f.~_. 2013.

~- ..............,_,, ........................_.~~--· _______

.. ·······............................................................_..._______,, __,_,,__.., ..

.,....__..,.. ,....,.....

881

Plaintiff002776

IMI•ORTJ\ ,Vf: REAO THIS ACREEME~T AN'O CONSULT WITH Yot:R l.A 'WYER

BJ.:FOiu<: SlGNfNG!

By: L ~ • • t:!lr • /,H •• -< . .,..:)~-·---

---- . ·-···..··-···-· -

)\-\'f\o.fAN H. J-ffiRENDEEN

.... ~---

nIT STATE OF TEXAS

COUI'VTY OF HAARIS

£3PFOR£ ME, the under.!>igncd aulhon:y, OJl this da} j)\!rsonull>· apJX""!.It..-J WVMAI\' H.

HERENDEEN, knou'tl l•) m:: lo h;,; lhe p.!~('f1 whose n:une is subscrib~d 111 the fi.H~going

instrument and acknowlcdge<.l to me fh<lt he ¢x;ecuted the same Jf.,r the pti}pose~ ami

~~.msidctatio11 th.erl'!iJ~ c~xprcsst.Xl, and in ihe capacity tberiin stared. al1.d ns his act .md d.:~.

_d~41 :JfJA(~_

Notary .Public In and f(>r

The Stat.e ofTexa~

17

882

Plaintiff002777

IMI'~ORTAN'f: R EAD THIS AGREEMF~NT ANU CON~1JLT WHH VOVR l.AWYER

BEFORE Sl(iNfN'G!

I)Jt ~

Dy:

MA~RENO.EEN - -. - - - - - - -

THES1ATE OFT!;:XAS §

§

COUNTY OF HARRIS §

Bli'-rORE ME. the 1111d~-:11li£ned authority, on thi ~ day pt:rs&MIIy appc:tlr'ecl MARY

HEUENDEE;N. known w me to be the person whose name is subscnbe.d l<l the forego ing

insw.un~m and acknowleqged to rne that she executec:l the same for the purP<)ses and

consid~ntion !herein expressed. and in Ihe CB'f18City t~rcin stated. and as her act <Jnd deed

GIVEN UNDER MY HAND AND SEAL OF OFFICE thi£ -~ j ~___ day of

~~ > .:!013.

~a) .--/ _ /~

- · - ~-·%~

Notary Public ln and For

----·- --

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