ACCEPTED
06-16-00001-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/6/2016 5:30:34 PM
DEBBIE AUTREY
CLERK
NO. 06-16-00001-CV
FILED IN
6th COURT OF APPEALS
IN THE TEXARKANA, TEXAS
SIXTH COURT OF APPEALS 7/7/2016 8:43:00 AM
AT DEBBIE AUTREY
Clerk
TEXARKANA, TEXAS
CARL STORCK AND VICKI STORCK
v.
TRES LAGOS PROPERTY OWNERS’ ASSOCIATION, INC.
IN CAUSE NO. 10,964
FROM THE SIXTY-SECOND JUDICIAL DISTRICT
FRANKLIN COUNTY, TEXAS
APPELLANTS’ BRIEF
Gene Stump
SBOT No. 24048824
P.O. Box 606
Mount Vernon, TX 75457
Ph: (903) 305-9079
Fax: (903) 588-2272
ATTORNEY FOR APPELLANTS
July 6, 2016
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IDENTIFICATION OF PARTIES AND COUNSEL
Trial Court level:
(A) Appellants and Plaintiff/Counterdefendants
Carl and Vicki Storck
Counsel for Plaintiff
Gene Stump
Attorney at Law
P.O. Box 606
Mount Vernon, TX 75457
Ph: (903) 305-9073
Fax: (903) 588-2272
genestump@yahoo.com
(B) Defendant/Counterplaintiffs
Tres Lagos Property Owners’ Association, Incorporated
153 Azalea Lane
Mount Vernon, TX 75457
Pro se
(C ) Appellee and Intervenor
Larry Wright
Attorney at Law
P.O. Box 144
Winnsboro. TX 75494
Ph: (903) 342-1089
Fax: (903) 342-1088
Pro se
lawyerwright@msn.com
2
TABLE OF CONTENTS
Identity of parties and counsel…………………………………….….….…2
Table of contents………………………………………………….…….…..3
Index of authorities……………………………………………………….….4
Statement of the case………………………………………………………...5
Issues presented……………………………………………………………...7
Statement of facts…………………………………………………………....8
Summary of the argument…………………………………………………..9
Argument
Point presented for review number one……………………………..10
THE COURT SHOULD SET ASIDE THE JUDGMENT IN THIS CASE
DUE TO POST-JUDGMENT INTERVENTION
Prayer…………………………………………………………………….14
Appendix…………………….………………………………….…..after 15
Certificate of Service
Certificate of Compliance
3
INDEX OF AUTHORITIES
(Guaranty Federal Savings Bank v. Horseshoe Operating 793 S.W.2d 652,
at 657 (Tex 1990)). ……………………………………………………….10
(First Alief Bank v.White , 682 S.W.2d 251, at 252 (Tex 1984))…………..10
Civil Practice and Remedies Code Section 31.002………………………..11
Texas Mutual Insurance Company v. Olivas, 251 S.W.3d 31, at 36 (Tex
2008))............................................................................................................11
Texas Rules of Appellate Procedure Section 24.2(a)(1)……………………12
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STATEMENT OF THE CASE
This is an appeal to set judgment aside due to post-trial intervention.
Appellants are Carl Storck and Vicki Storck, and Appellee is Larry Wright,
Intervenor. This is an appeal out of the 62nd Judicial District in Franklin
County, Texas.
This case was originally tried before the court and appealed to the
Sixth Court of Appeals. Appellants appealed to the Supreme Court of Texas
and petition was denied. After the appeal in this case, the trial ruled in a
subsequent case, Cause Number 11,223, that the Board of Directors of Tres
Lagos Property Owners’ Association, Incorporated (TLPOA) was invalid,
and that all actions taken by the TLPOA Board of Directors since September
29, 2007, are void, which time includes the duration of this lawsuit ( Cl. Rec.
at 13,15).
Appellants filed a Motion to Release Cash Bond to Appellants and
subsequent amended motions (id at 5, 10, 51). The cash bond in question
was tendered by Appellants for purposes of Writ of Supersedeas for appeal
(id at 5). TLPOA released the Judgment in the case by board resolution and
filed an affidavit for Release of Judgment signed with authority by the
Treasurer of TLPOA (id at 26, 28). Another affidavit for Release of
5
Judgment was signed by the association President and filed (id at 62).
Attorney Larry Wright, former attorney for TLPOA, filed a Petition in
Intervention seeking to intervene, have release of judgment set aside, and for
the cash bond to be released to him for attorney fees. The trial court set
aside the release of judgment and allowed intervention, ordering the cash
bond to be released to Larry Wright (id at 84). Appellants filed Motion for
New Trial and Notice of Appeal ( Cl. Rec. at 95, 93).
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ISSUES PRESENTED
I. Whether the Court should set aside Judgment in this case due to post-
judgment intervention.
7
STATEMENT OF FACTS
After the appeal process, the trial court ruled in Cause Number 11,223
that the TLPOA Board of Directors were an invalid board of directors as of
September 29, 2007, and that all actions taken by the TLPOA Board since
that time were void ( Cl. Rec at 13, 15). This time period encompasses the
entire duration of this lawsuit. Appellants filed a motion and amended
motions to release the cash bond that was tendered to the registry of the trial
court for purpose of issuance of a Writ of Supersedeas on appeal (id at 5, 10,
51).
TLPOA released the Judgment in this case by board resolution and an
affidavit for Release of Judgment signed with authority by the association’s
Treasurer (id at 26, 28). Attorney Larry Wright petitioned the court to allow
post-judgment intervention, to set aside Release of Judgment, and release the
cash bond in question to him. Another affidavit for Release of Judgment
was signed by the association President and filed (id at 62). The trial court
granted post-judgment intervention, set aside the Release of Judgment, and
ordered the cash bond to be released to Larry Wright (id at 84).
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SUMMARY OF THE ARGUMENT
I. The Court should set aside judgment in this case due to post-judgment
intervention.
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ARGUMENT
I.
THE COURT SHOULD SET ASIDE THE JUDGMENT IN THIS CASE
DUE TO POST-JUDGMENT INTERVENTION
The Court should set aside the Judgment in this case due to post-
judgment intervention. Post-judgment intervention may be brought only by
a party who could have brought all or part of the same action in its own
name, or, if the action had been brought against it (intervenor), the
intervenor is not a proper party who would have been able to defeat recovery
(Guaranty Federal Savings Bank v. Horseshoe Operating 793 S.W.2d 652,
at 657 (Tex 1990)). Larry Wright in this case was not a member of Tres
Lagos Property Owners’ Association, Inc., during the time of this lawsuit
and therefore had no standing to bring the claims of this lawsuit against
Plaintiffs or be sued by Plaintiffs as a member or representative of the POA.
Larry Wright could not have sued Plaintiffs for any claims in this lawsuit.
A Petition in Intervention filed post-judgment may only be considered
if the trial court sets aside the judgment, unless an exception applies (First
Alief Bank v.White , 682 S.W.2d 251, at 252 (Tex 1984)). A Petition in
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Intervention is too late unless a) intervenor does not attack the existing
judgment but seeks to protect property interests under Civil Practice and
Remedies Code Section 31.002, or b) intervenor is a subrogee whose interest
is at first adequately represented by someone else who later abandoned the
claim (Texas Mutual Insurance Company v. Olivas, 251 S.W.3d 31, at 36
(Tex 2008)).
Civil Practice and Remedies Code Section 31.002 states that
collection of judgment through court proceedings by a judgment creditor
only applies if the property cannot be readily attached or levied by way of
ordinary legal process, or is not exempt from attachment, execution, or
seizure. The attorney fees originally assessed by the Court in this case were
attached to the Final Judgment and the Abstract of Judgment filed in this
case. Furthermore, a money judgment is generally not exempt from
attachment, execution, and/or seizure. The Judgment in this case was in
favor of TLPOA, not Larry Wright. In that regard, Larry Wright has
obtained a judgment against TLPOA for the entire amount of attorney fees
assessed in this case (1st Supp. Cl. Rec.), and intervention in this case is
improper and not permitted by law. Therefore, Civil Practice and Remedies
Code Section 31.002 does not permit this exception.
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This case is not a lawsuit dealing with subrogation issues or any
subrogated rights. This lawsuit was between two parties, with no third-party
claims, no payment of damages by a third-party, and therefore does not fall
under the subrogee exception. No evidence of a subrogee has been
submitted in this case, and, as this Writ of Supersedeas was secured by a
cash bond held in the registry of the Court, no property interest of any kind
has been abandoned.
The cash bond held by the trial court for Writ of Supersedeas cannot
be held in constructive trust for Larry Wright because attorney fees are not
part of the cash bond pursuant to Texas Rules of Appellate Procedure 24.2.
According to Texas Rules of Appellate Procedure Section 24.2(a)(1), a bond
for purposes of appeal shall include only compensatory damages, interest for
the estimated duration of the appeal, and costs, not attorney fees. Therefore,
attorney fees are not part of the cash bond tendered for Writ of Supersedeas
in this case, and cannot be considered held in constructive trust for attorney
fees.
Furthermore, Larry Wright testified at this hearing that he had not
been paid anything toward attorney fees awarded in this case ( Ct. Rep. Vol.
1, p. 8). However, at the original trial, Larry Wright elicited testimony on
12
direct examination that he had been paid partial payments in this matter by
TLPOA ( Ct. Rep. Vol. 2, p. 177, Motion for Declaratory Judgment and
Trial). In respect to the trial court setting aside the release of judgment, no
evidence was presented which would allow the trial court to enter such
judgment (see Ct. Rep., Vol. 1).
The Court should set aside judgment in this case due to improper post-
judgment intervention.
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PRAYER
Appellants respectfully pray the Court to set aside the Judgment in
this case due to post-judgment intervention.
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APPENDIX
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Certificate of Service
I hereby certify that a true and correct copy of the above Appellants’
Brief will be served the following individuals by Certified Mail, Return
Receipt Requested, within two (2) business days of electronic filing and
acceptance on July 6, 2016.
Larry Wright
Attorney at Law
P.O. Box 144
Winnsboro, TX 75494
CRRR#7012 3050 0000 6608 7854
Tres Lagos Property Owners’ Association, Inc.
153 Azalea Lane
Mount Vernon, TX 75457
CRRR#7012 3050 0000 6608 7861
/s/ Gene Stump
Gene Stump
Certificate of Compliance
I hereby certify, to the best of my ability, that this Petition for Writ of
Mandamus contains 1598 words.
/s/ Gene Stump
Gene Stump
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