Melissa Broquet and John Broquet v. Walter Mortgage Company

ACCEPTED
04-14-00707-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/2/2015 5:19:59 PM
KEITH HOTTLE
CLERK

CAUSE NO. 04-14-00707-CV

FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
03/2/2015 5:19:59 PM
FOURTH DISTRICT OF TEXAS KEITH E. HOTTLE
Clerk

SAN ANTONIO, TEXAS

MELISSA BROQUET AND JOHN BROQUET
APPELLANT

AMENDED BRIEF FOR APPELLANT

Respectfully submitted,

THE LAW OFFICE OF HECTOR P. GONZALEZ, P.C.
202 East Saint Joseph Avenue
San Diego, Texas 78384-3100
Tel: (361) 279-7161
Fax: (361) 279-7191
e-mail: hpg_law@yahoo.com

Hector P. Gonzalez
State Bar No. 08127000

Counsel for Appellant
 1. IDENTITY OF PARTIES AND COUNSEL

1. Appellant

Melissa Broquet and John Broquet, Plaintiffs in

Cause No. DC-12-60-A; Melissa Broquet and John Broquet v. Walter

Mortgage Company; In the 229th Judicial District Court, Duval County,

Texas

2. Counsel for Appellant

Hector P. Gonzalez, The Law Office of Hector P. Gonzalez, P.C., 202 East

St. Joseph Avenue, San Diego, Texas 78384-3100; Telephone: (361) 279-

7161; Fax: (361) 279-7191; Email: hpg_law @ Yahoo.com; State Bar No.

08127000.

3. Appellee

Walter Mortgage Company, Defendant

4. Counsel for Appellee

Lead: Kenneth M. Culbreth

900 Bank of America Tower, 500 North Shoreline, Corpus Christi, Texas
78401; Telephone: (361) 884-5678, Fax (361) 888-9149; State Bar No.
05207525

i.
 TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL……………………….. i.

TABLE OF CONTENTS…………………………………………….. ii.

INDEX OF AUTHORITIES………………………………………… iii.

RECORD…………………………………………………………….. iv.

STATEMENT OF THE CASE……………………………………… 1

STATEMENT OF JURISDICTION……………………………….. 1

REQUEST FOR ORAL ARGUMENT…………………………….. 2

STATEMENT OF FACTS………………………………………….. 2

ISSUES PRESENTED………………………………………………. 5

ARGUMENT AND AUTHORITIES………………………………. 6

CONCLUSION………………………………………………………. 11

PRAYER……………………………………………………………… 11

CERTIFICATE OF SERVICE……………………………………… 13

ii.
 INDEX OF AUTHORITIES

Cases Page

Dwairy v. Lopez, 243 S.W.3d 710, 712 (Tex.App.-
San Antonio 2007, no pet.)……………………………………………………. 9

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 444 (Tex. 1993)……………………………………………………………. 10

Id. at 443…………………………………………………………………………. 10

Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990)………………… 10

In re Guardianship of Erickson, 208 S.W.3d 737, 740
(Tex.App.- Texarkana 2006, orig. proceeding)…………………………….. 10

‘[3] Tex. Ass’n of Bus., 852 96*96 S.W.2d at 446…………………………. 10

Tex. DOT v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004).”… 10

Statutes, Codes and Other

Tex. Gov’t Code §22.221(b)…………………………………………….. 1

Texas Government Code Section 22.210 (e)………………………………… 2

The Texas State Notary Handbook revived in 1984,
distributed by the State Bar of Texas, on Page 17, No. 5…………………… 6,8

iii.
 RECORD

1. AFFIDAVIT OF MELISSA BROQUET

A. EXHIBIT “A”: Mechanic’s Lien with Power of Sale dated March 4,
2004
B. EXHIBIT “B”: Mechanic’s Lien with Power of Sale dated April 30,
2004.

iv.
 STATEMENT OF THE CASE

Melissa Broquet filed suit on behalf of her children. Case compelled to

arbitration with the American Arbitration Association (AAA). In a separate case,

she and her husband John Broquet filed individually filed for their damages, case

was never compelled to arbitration.

In compliance with the Order compelling her to arbitration, she filed her

pleading with the AAA. Defendants filed a purported counter-claim against her

and her husband individually, Plaintiffs responded. Melissa Broquet non-suited

children case and she and her husband non-suited their response Defendants’

alleged counter-claim. Arbiter granted default judgments in both causes.

Visiting Judges Joaquin Villarreal Honorable Robert Blackmon, entered

judgment in both cases, against the claims of the children and against the

individual claims of the Plaintiffs. Melissa Broquet and John Broquet is here

before this Court with their contention that the Defendants did not have standing to

bring any claim for affirmative relief and as a result thereof the Court below did

not have subject matter jurisdiction of the Defendants’ affirmative claims.

STATEMENT OF JURISDICTION

This Court has jurisdiction to grant the requested relief pursuant to Texas

Government Code Section 22.220, which provides that “every court of appeals has
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appellate jurisdiction of all civil cases within its district of which the district courts

or county courts have jurisdiction when the amount in controversy exceeds

$100.00, exclusive of interest and costs.” The Fourth Court of Appeals in San

Antonio, Texas has jurisdiction over Duval County, Texas pursuant to Texas

Government Code Section 22.210 (e).

REQUEST FOR ORAL ARGUMENT

STATEMENT OF FACTS

A. Plaintiffs went to Jim Walter Homes Inc. sales office to negotiate to build

them a house on their homestead.(1, AFFIDAVIT P. 1)

B. Jim Walter Homes required them to sign numerous documents and to show

them their drivers’ license and social security, which Jim Walter Homes

copied, keeping the copies.(2, AFFIDAVIT P. 1)

C. Among the many documents that the Plaintiffs signed was a Mechanic’s

Lien with Power of Sale, which also had to be notarized.(3, AFFIDAVIT P.

1) The notary public was not present, the salesperson told the Plaintiffs that

it would be notarized later and the Plaintiffs left.(4, AFFIDAVIT P. 1) Later

on the Plaintiffs discovered that the aforementioned document had been

notarized outside their presence without their authority and permission by a

notary they had never met and never seen.(5, AFFIDAVIT P. 1)
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D. Subsequently thereto, they were contacted by the salesperson and told that

defects in the Mechanic’s Lien with Power of Sale was holding up the

construction but that they soon would be resolved.(6, AFFIDAVIT P. 1)

What the defects were was never told to the Plaintiffs(7, AFFIDAVIT P. 1).

Years later the Plaintiffs discovered that someone, unknown to them, had

prepared another Mechanic’s Lien with Power of Sale and had without their

permission and authorization forged their signature (8, AFFIDAVIT P. 2)

and that the document had been notarized by the same notary that had

notarized the first one outside their presence and without their authorization

and permission.(9, AFFIDAVIT P. 2)

E. As time pass, it became clear and clear that the contract to construct the

Plaintiffs’ house had not been substantially preformed, the work was not

done in a good and workmanlike manner and that the materials used were

inadequate and advice Jim Walter Homes and Green Tree of this fact.(10,

AFFIDAVIT P. 2)

F. Plaintiff Melissa Broquet, filed a lawsuit in her children’s behalf for illegal

collection practices and she and her husband John Broquet filed a different

lawsuit in their behalf.(11, AFFIDAVIT P. 2)

G. Defendants obtained a Court Order compelling the children’s claim to
3
 arbitration but have never gotten a Court Order compelling the individual

lawsuit of Melissa and John Broquet to arbitration.(12, AFFIDAVIT P. )

H. In compliance with the Court Order, Melissa Broquet filed the children’s

claim with the American Arbitration Association.(13, AFFIDAVIT P. 1)

I. Defendants in the children’s case, which was in front of the American

Arbitration Association filed a counter-claim against the individual claims of

Melissa Broquet and her husband John Broquet, which are pending in a

separate case in the 229th District Court and which has not been ordered to

arbitration. The Defendants did this without the Plaintiffs ever bringing any

of their individual claims in the children’s lawsuit.(14, AFFIDAVIT P. 2)

J. The Plaintiffs filed their responses to the Defendants’ counter claim.(15,

AFFIDAVIT P. 2)

K. Melissa Broquet, in the AAA non-suited her children’s claim.(16,

AFFIDAVIT P. 2)

L. Shortly thereafter, Melissa Broquet and her husband John Broquet,

individually, non-suited their responses to the counter-claims brought by the

Defendants.(17, AFFIDAVIT P. 2)

M. The arbiter ignored the non-suits and entered a default judgment against

Melissa Broquet and John Broquet, individually, and included in its
4
 judgment that the order also applied to the individual lawsuits which are still

pending the 229th District Court and which had never been compel to

arbitration.(18, AFFIDAVIT P. 2)

N. Since then, Judges Joaquin Villarreal and Robert Blackmon, which had been

assigned as Visiting Judges to both causes, entered orders confirming the

judgment of the arbitrator.(19, AFFIDAVIT P. 2)

ISSUES PRESENTED

ISSUE 1. Exhibit “A” the Mechanic’s Lien with Power of Sale dated March

4, 2004, was notarized outside the presence the Plaintiffs and a result of void

eb initio and totally unenforceable.

ISSUE 2. Exhibit “B” the Mechanic’s Lien with Power of Sale dated April

30, 2004, was supposedly a corrective deed containing signature of Melissa

Broquet and John Broquet, forged without the permission and authorization

of the Plaintiffs, without their permission and authorization, is void.

ISSUE 3. The Court erred in granting the various motions and judgments

based on the Defendants assertion that they had standing and therefore the

Court had jurisdiction basing said claims upon documents that were not

notarized in the presence of the Plaintiffs and in one, where the signature of
5
the Plaintiffs were forged without their authority or permission, which

deprives the Defendants of standing and the Court of subject matter

jurisdiction.

ARGUMENT AND AUTHORITY

1, Exhibit “A” the Mechanic’s Lien with Power of Sale dated March 4,

2004, was notarized outside the presence the Plaintiffs and a result of void eb

initio and totally unenforceable.

The Mechanic’s Lien with Power of Sale dated March 4, 2004 and notarized by

Sharon K. Bostwick, which has been marked Exhibit “A” contains the following

statement: “This instrument was acknowledge before me on the 4th day of March,

2004 by John K. Broquet and Melissa Ann Broquet.” Totally denied (See

Affidavit P. 1) in the affidavit of Melissa Broquet, in her uncontroverted Affidavit

in which she state that they never seen, have never met, have never appeared and

have never acknowledge in the presence of Sharon Bostwick, or anyone else, the

Mechanic’s Lien with Power of Sale dated March 4, 2004, without equivocation

she state in her Affidavit that this is false, untrue and an outright lie. The Texas

State Notary Handbook revived in 1984, distributed by the State Bar of Texas, on

Page 17, No. 5, specifically states that notaries are prohibited from notarizing a

6
document without the signer being in their presence. These rules apply not only to

Texas, but throughout most of the States of this Union. A fully detail analysis and

its applicability and the effects of violating it are analyze in the John Marshall Law

Review Article by Charles Maferber Article entitled “Being There” the Importance

of Physical Presence to the Notary. The conclusion of the affect of the failure to

comply with this rule is that it voids the document eb initio and makes it totally

unenforceable. The Affidavit of Melissa Broquet clearly overcomes the

presumption that the acknowledgment of Exhibit “A” is genuine. The Affidavit of

Melissa Broquet is clear and unmistakable proof that neither she nor her husband

appeared before purported notary Sharon K. Bostwick on the 4th day of March

2004 and acknowledged the instrument marked Exhibit “A”.

2. Exhibit “B” the Mechanic’s Lien with Power of Sale dated April 30,

2004, was supposedly a corrective deed containing signature of Melissa

Broquet and John Broquet, forged without the permission and authorization

of the Plaintiffs, without their permission and authorization, is void.

The Mechanic’s Lien with Power of Sale dated April 30, 2004 and notarized by

Sharon K. Bostwick, which has been marked Exhibit “B” contains the following

statement: “This instrument was acknowledge before me on the 30th day of April,

7
2004 by John K. Broquet and Melissa Ann Broquet.” Totally denied in the

affidavit of Melissa Broquet, in her uncontroverted Affidavit in which she state

that they never seen, have never met, have never appeared and have never

acknowledge in the presence of Sharon Bostwick, or anyone else, the Mechanic’s

Lien with Power of Sale dated April 30, 2004, without equivocation she states in

her Affidavit that this is false, untrue and an outright lie and that the signatures

contained in Exhibit “B” are also false and were forged without the permission and

authority of her and John Broquet. The Texas State Notary Handbook revived in

1984, distributed by the State Bar of Texas, on Page 17, No. 5, specifically states

that notaries are prohibited from notarizing a document without the signer being in

their presence. These rules apply not only to Texas, but throughout most of the

States of this Union. A fully detail analysis and its applicability and the effects of

violating it are analyze in the John Marshall Law Review Article by Charles

Maferber Article entitled “Being There” the Importance of Physical Presence to the

Notary. The conclusion of the affect of the failure to comply with this rule is that

it voids the document eb initio and makes it totally unenforceable. The Affidavit

of Melissa Broquet clearly overcomes the presumption that the acknowledgment of

8
Exhibit “A” is genuine. The Affidavit of Melissa Broquet is clear and

unmistakable proof that neither she nor her husband appeared before purported

notary Sharon K. Bostwick on the 30th day of April 2004 and acknowledged the

instrument marked Exhibit “B”.

3. The Court erred in granting the various motions and judgments based

on the Defendants assertion that they had standing and therefore the Court

had jurisdiction basing said claims upon documents that were not notarized in

the presence of the Plaintiffs and in one, where the signature of the Plaintiffs

were forged without their authority or permission, which deprives the

Defendants of standing and the Court of subject matter jurisdiction.

It is clear from the uncontroverted Affidavit of Plaintiff Melissa Broquet, which

clearly and unmistakably proves that she never acknowledged Exhibit “A” or that

she has never met, seen or appeared before the purported notary named in Exhibit

“A”. This statement is clearly without equivocation. Additionally, in her

Affidavit, she states under oath that someone forged her signature through Exhibit

“B” and that she never appeared to acknowledge instrument “B”. It has been long

established precedent that forged documents are void eb initio. See Dwairy v.

Lopez, 243 S.W.3d 710, 712 (Tex.App.-San Antonio 2007, no pet.) And when a

9
document is void eb initio, it is as if it did not exist because it has no effect from

the onset. Therefore, it cannot be assigned and does not give the purported

assignee standing to bring any action in Court to enforce it since it is void eb initio,

it never existed and is totally unenforceable. In light of all of the above, the

Defendants did not have standing to enforce an Arbitration Agreement, to sue on a

void note or to enforce the Mechanic’s Lien with Power of Sale, the void

instrument did not have standing and as a result therefore, the Court did not have

subject matter jurisdiction. “Standing is a constitutional prerequisite to

maintaining a suit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 444 (Tex. 1993). Standing, as a necessary component of the court’s

subject-matter jurisdiction, cannot be conferred by consent or waiver and be raised

for the first time on appeal. Id. at 443; see Mapco, Inc. v. Forrest, 795 S.W.2d 700,

703 (Tex. 1990); In re Guardianship of Erickson, 208 S.W.3d 737, 740 (Tex.App.-

Texarkana 2006, orig. proceeding). When standing is challenged for the first time

on appeal, appellate courts ‘must construe the petition in favor of the party, and if

necessary, review the entire record to determine if any evidence supports standing.

‘[3] Tex. Ass’n of Bus., 852 96*96 S.W.2d at 446. We review do novo a challenge

to a party’s standing. Tex. DOT v. City of Sunset Valley, 146 S.W.3d 637, 646

(Tex.2004).”

10
 CONCLUSION

Once everything is said and done and one realizes what the Defendants got

out of their lies, fraud and criminal actions, one recalls a statement told to counsel

back in the 1970s regarding Jim Walter Homes. If they have a chance to lie,

instead of tell the truth, to construct things badly rather than in a good and

workmanlike manner, you can count on them to lie, exaggerate and do things

badly. Just be taking the time to see what they did in two (2) exhibits, you can

well imagine what they did to the Plaintiffs’ house. What we are asking this Court

is to teach this company the old Texas adage, “Pigs get fat, hogs get butchered and

loss some very essential organs.”

PRAYER

WHEREFORE PREMISES CONSIDERED, Plaintiffs-Appellant

MELISSA BROQUET AND JOHN BROQUET respectfully prays that this

Honorable Court:

A. Hold that the Defendants did not have standing to assert any of the

affirmative relief granted and as a result, the Court did not have subject

matter jurisdiction over the counter-claims and reverse the judgments

entered in this cause and for all other relief either in law or in equity to

which they may be justly entitled.
11
 CERTIFICATION

The undersigned certifies that he has reviewed the foregoing Petition and

concluded that every factual statement in the Petition is supported by competent

evidence included in the Appendix to the Petition filed contemporaneously

herewith, or in the Record.

Respectfully submitted,

The Law Office of Hector P. Gonzalez, P.C.
202 East Saint Joseph Ave.
San Diego, Texas 78384
Tel: (361) 279-7161
Fax361) 279-7191
E-Mail: hpg_law@yahoo.com

By_/s/ Hector P. Gonzalez
Hector P. Gonzalez
State Bar No. 08127000

Attorney for Relators
Melissa and John Broquet

12
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded, on this the 2nd day of March, 2015, to the counsel of
record for each of the parties.

Via Facsimile (361) 888-9149
Jordan, Hyden, Womble, Culbreth &Holzer
Kenneth Culbreth

_/s/ Hector P. Gonzalez
Hector P. Gonzalez

13