Stacey Scott v. Larry Furrow and Keller Williams Legacy Group

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ACCEPTED 04-15-00074-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 10/1/2015 10:19:09 AM KEITH HOTTLE CLERK NO. 04-15-00074-CV In the Court of Appeals for the FILED IN Fourth District of Texas 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/1/2015 10:19:09 AM KEITH E. HOTTLE STACEY SCOTT, Clerk Appellant, vs. LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP, Appellees. From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 13-1125-CV-A Honorable W.C. Kirkendall, Judge Presiding ______________________ BRIEF OF APPELLANT Frederick D. Junkin State Bar No. 11058030 fredjunkin@andrewskurth.com Andrews Kurth LLP 600 Travis Street, Suite 4200 Houston, Texas 77002 (713) 220-4200 (713) 238-7387 (Facsimile) ATTORNEY FOR APPELLANT STACEY SCOTT September 30, 2015 ORAL ARGUMENT REQUESTED HOU:3588888.2 LIST OF PARTIES AND COUNSEL Appellant Stacey Scott submits the following list of the parties to the trial court's Final Judgment and their counsel. Plaintiff / Appellant: Stacey Scott Appellate Counsel:1 Frederick D. Junkin Andrews Kurth LLP 600 Travis, Suite 4200 Houston, Texas 77002 Defendants / Appellees: Larry Furrow Keller Williams Legacy Group Counsel: Scott F. Cline Vaughan E. Waters Thornton, Biechlin, Segrato, Reynolds & Guerra, L.C. 100 N.E. Loop 410, Suite 500 San Antonio, Texas 78216-4741 1 Ms. Scott appeared pro se in the trial court. HOU:3588888.2 ii TABLE OF CONTENTS Page LIST OF PARTIES AND COUNSEL ................................................................................. ii TABLE OF CONTENTS ................................................................................................ iii REFERENCES TO THE RECORD .....................................................................................v INDEX OF AUTHORITIES............................................................................................. vi STATEMENT OF THE CASE ...........................................................................................1 ISSUES PRESENTED ......................................................................................................2 STATEMENT OF FACTS.................................................................................................3 SUMMARY OF THE ARGUMENT ....................................................................................8 ARGUMENT AND AUTHORITIES ...................................................................................9 I. Standard of review. ..........................................................................................9 II. The trial court erred in granting the Claims Motion. ....................................10 A. The existence of public records reflecting the state of the title to the waterfront lot does not foreclose application of the discovery rule to Ms. Scott's claims. .............................................12 1. The analysis in the trial court's letter ruling is contrary to well-settled precedent. ..........................................................12 2. The authorities cited in the trial court's letter ruling did not support the entry of summary judgment. ......................15 B. The remaining grounds asserted in the Claims Motion provide no foundation for affirming the Final Judgment. ...................16 1. Defendants' reference to Ms. Scott's deposition testimony does not support their limitations defense. ..............17 HOU:3588888.2 iii 2. Defendants' reference to Ms. Scott's e-mail to the sellers' counsel does not support their limitations defense.......................................................................................19 3. Defendants' reference to Ms. Scott's deposition testimony does not establish an absence of disputed issues of material fact regarding her claims..............................21 4. Defendants' unsupported argument regarding conspiracy and fraud by non-disclosure claims provides no basis for affirmance. ..............................................22 III. The trial court erred in granting the Fees Motion. ........................................23 A. The Defendants were not entitled to pursue an award of attorney's fees under the New Home Contract. ...................................24 1. The Defendants were not parties to the agreement. ..................24 2. The Defendants were not third-party beneficiaries of the agreement. ...........................................................................25 B. The Final Judgment contains no findings supporting an award of fees under Section 17.50(c) of the Business and Commerce Code. .................................................................................27 CONCLUSION AND PRAYER .......................................................................................28 CERTIFICATE OF SERVICE ..........................................................................................30 CERTIFICATE OF COMPLIANCE ..................................................................................30 Appendices 1. Final Judgment 2. Order Granting Claims Motion 3. Property Listing for 1104 Peggy Lane 4. New Home Contract for 1104 Peggy Lane HOU:3588888.2 iv REFERENCES TO THE RECORD Reference Record Cited CR Clerk's Record filed on March 12, 2015 SCR-I Supplemental Clerk's Record filed on March 24, 2015 SCR-II Supplemental Clerk's Record filed on April 29, 2015 2SCR-I Second Supplemental Clerk's Record (Vol. 1 of 3) filed on September 21, 2015 2SCR-II Second Supplemental Clerk's Record (Vol. 2 of 3) filed on September 21, 2015 2SCR-III Second Supplemental Clerk's Record (Vol. 3 of 3) filed on September 21, 2015 HOU:3588888.2 v INDEX OF AUTHORITIES Page(s) Cases Booker v. Real Homes, Inc., 103 S.W.3d 487 (Tex. App.–San Antonio 2003, pet. denied) ............................ 10 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) .............................................................................. 10 ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504 (Tex. App.–Dallas 1989, writ denied) ..................................... 14 Exxon Mobil Chemical Co. v. Ford, 187 S.W.3d 154 (Tex. App.–Beaumont 2006), aff'd in part, rev'd in part, 235 S.W.3d 615 (Tex. 2007) .................................................................. 15 Johnson v. Prudential Relocation Management Ltd. P'ship, 918 S.W.2d 68 (Tex. App.–Eastland 1996, writ denied) ................................... 14 Jones v. Smith, 649 S.W.2d 29 (Tex. 1983)................................................................................. 28 Lesieur v. Fryar, 325 S.W.3d 242 (Tex. App.–San Antonio 2010, pet. denied) ......9, 24, 25, 26, 27 Lightfoot v. Weissgarber, 763 S.W.2d 624 (Tex. App.–San Antonio 1989, writ denied) ........................... 14 Marker v. Garcia, 185 S.W.3d 21 (Tex. App.–San Antonio 2005, no pet.) .................................... 28 Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) ........................................................8, 12, 13, 14, 16 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) .............................................................................. 10 Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex. 1995) .............................................................................. 23 Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) .............................................................................. 10 HOU:3588888.2 vi Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) .............................................................................. 10 Salinas v. Gary Pools, Inc., 31 S.W.3d 333 (Tex. App.–San Antonio 2000, no pet.) .................................... 14 Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006) ................................................................................ 9 Swanson v. Stouffer & Associates, LLP, No. 03-12-00071-CV, 2014 WL 2522145 (Tex. App.–Austin May 30, 2014, no pet.) ..........................................................................................15, 16 Tawes v. Barnes, 340 S.W.3d 419 (Tex. 2011) ........................................................................25, 26 Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ................................................................................ 9 Statutes Tex. Bus. & Com. Code Ann. § 17.50(c) (West 2011) .......................................... 27 Rules Tex. R. Civ. P. 166a(c) ............................................................................................ 10 HOU:3588888.2 vii STATEMENT OF THE CASE Nature of Stacey Scott sued Keller Williams Legacy Group, Larry the Case: Furrow, and other parties asserting, among other causes of action, DTPA, fraud, and negligent misrepresentation claims based on pre-purchase representations made to her regarding the waterfront character of a house and associated land in Seguin, Texas. (2SCR-I 14-165.) Trial Court The case was assigned to the 25th Judicial District Court of Proceedings: Guadalupe County. The Honorable W.C. Kirkendall is the presiding judge of that court. Keller Williams and Furrow filed traditional and no-evidence motions for summary judgment seeking a take-nothing judgment as to each of Ms. Scott's claims. (2SCR-I 177-222.) In a letter ruling, Judge Kirkendall denied the no-evidence motion but granted the traditional motion on the basis of one of the five grounds asserted in the motion — that the discovery rule did not apply to Ms. Scott's claims because the information needed to discover those claims was available in the Guadalupe County real property records when she purchased the property at issue. (CR 536-37.) These rulings were memorialized in an Order that also severed the claims against Keller Williams and Furrow into a separate cause. (CR 534-37.) Keller Williams and Furrow then filed a second motion for summary judgment seeking recovery on their counterclaim for attorney's fees. (SCR-II 8-37.) Trial Court Judge Kirkendall entered a Final Judgment that Disposition: (i) incorporated his interlocutory Order on the initial summary judgment motion, (ii) ordered that Ms. Scott take nothing on her claims, and (iii) awarded Keller Williams and Furrow $70,179 in attorney's fees through judgment and conditional fees in the event of an appeal. (SCR-II 38-40.) HOU:3588888.2 ISSUES PRESENTED Issue 1 The trial court ruled that Ms. Scott's DTPA, fraud, and negligent misrepresentation claims were barred by limitations based on its conclusion that documents on file in the public records placed her on notice of the "precise nature of her title." However, controlling precedents establish that the existence of such records does not foreclose application of the discovery rule with respect to the types of claims asserted in this proceeding. Did the trial court thus err in holding the discovery rule did not apply and granting summary judgment on the Defendants' limitations defense? Issue 2 The trial court's letter ruling reflects that the decision to grant the Defendants' traditional motion for summary judgment was based on only one of five grounds asserted in the motion but stated that the motion "is GRANTED in all things." Did any of the four remaining grounds that were not specifically addressed in the court's letter ruling support its Order granting the motion? Issue 3 The Defendants asserted a right to recover attorney's fees pursuant to a clause in a purchase and sale agreement between Ms. Scott and third-party sellers. Neither Keller Williams nor Furrow was a party to that contract. Did the trial court thus err in awarding them recovery of attorney's fees incurred during the trial court proceedings together with a conditional award of fees in the event of an appeal? Issue 4 The Defendants also asserted a right to recover attorney's fees pursuant to Section 17.50(c) of the Texas Business and Commerce Code. In order to award fees under that provision, the trial court was required to find that Ms. Scott's DTPA claim "was groundless in fact or law or brought in bad faith, or brought for the purpose of harassment." Since it did not make any such findings, did the trial court err in awarding the Defendants recovery of attorney's fees incurred during the trial court proceedings together with a conditional award of fees in the event of an appeal? HOU:3588888.2 2 STATEMENT OF FACTS This dispute arises out of Ms. Scott's May 2006 purchase of property in Seguin and the Defendants' pre-purchase representations regarding the waterfront character of that property. Of course, certain facts are disputed. As the matter was resolved on summary judgment, the evidence must be viewed in the light most favorable to Ms. Scott, the nonmovant. Viewed in that light, the summary judgment record establishes the following facts relevant to the disposition of this appeal. The Purchase of the Property Ms. Scott had recently returned to Texas from California and was interested in purchasing a waterfront house to lease as a vacation rental property. (2SCR-II 208-10.) Through an internet search, she identified a listing for a property located at 1104 Peggy Lane in Seguin.2 (Id. 210, 277.) The listing office was Keller Williams Legacy Group. (Id. 149.) The listing agent was Larry Furrow. (Id.) The property listing included a photograph depicting a fenced-in property adjoining the Guadalupe River. (Id. 149, 177.) Included in the general description of the property was the abbreviation "WTRFR," which is short for "waterfront." (Id. 149, 177.) The listing also included a description of the lot: "Lot Des: CRNR, WATER." (Id. 149.) Finally, in the description of the property, the listing 2 1104 Peggy Lane is sometimes referred to in the record as "Lot 2." HOU:3588888.2 3 stated: "Home sits on hill and front faces the Guadalupe River." (Id.) Based on her review of the listing, Ms. Scott understood that Keller Williams was marketing waterfront property and called Furrow to arrange for an inspection. (Id. 219-20.) During the inspection, Ms. Scott toured the house at 1104 Peggy Lane. (Id. 219-20, 280-81.) In addition, Furrow provided her a tour of the fenced waterfront lot depicted in the listing.3 (Id. 219-20, 280-81.) The gate providing access to that lot had a lock on it, but Furrow had the combination and opened the gate so that Ms. Scott could enter and inspect the property. (Id. 219-20, 222.) During the tour, Furrow represented that ownership of the waterfront lot was tied to the ownership of 1104 Peggy Lane. (Id. 222.) Accordingly, if Ms. Scott purchased the house, then she also would be purchasing an ownership interest in the waterfront lot. (Id. 151, 224.) Furrow further advised that if she later purchased the vacant lot adjacent to 1104 Peggy Lane, Ms. Scott would have exclusive ownership of the waterfront lot. (Id. 151.) Based on her inspection of the property and the representations made to her regarding the interest she would acquire in the waterfront lot, Ms. Scott decided to proceed with the purchase of 1104 Peggy Lane. (Id. 151.) On April 22, 2006, she and the sellers entered into a New Home Contract at an agreed price of $135,000. (2SCR-I 200-08.) The sale closed the following month. (Id. 193-96, 209-11.) 3 The waterfront lot is sometimes referred to in the record as "Lot 1." HOU:3588888.2 4 Securing the Exclusive Ownership and Use of the Waterfront Lot In 2007, Ms. Scott executed an Unimproved Property Contract with respect to and ultimately purchased for $34,000 the vacant lot adjoining 1104 Peggy Lane.4 (2SCR-II 4, 151; CR 33-42.) Based on the prior discussions with Furrow, she understood that with that purchase she had secured exclusive ownership of the waterfront lot. (Id. 151.) Consistent with that understanding, she placed her own lock on the gate to that property. (Id. 229-30.) Questions Regarding the Title to the Waterfront Lot In 2012, Ms. Scott decided to sell all of her interest in 1104 Peggy Lane, the adjoining vacant lot, and the waterfront lot. (2SCR-II 152.) At some point thereafter, a prospective buyer requested information regarding the title to the waterfront lot. (Id.) Then, in March of 2013, Ms. Scott communicated with counsel for the individual who had sold her the property in an effort to secure documentation confirming her title to the lot. (Id.) In an e-mail dated April 17, 2013, the seller's counsel informed Ms. Scott that "we have checked with our client and there is no documentation, at least recorded that we know, that shows the right to the gated waterfront park." (Id.) 4 The vacant lot is sometimes referred to in the record as "Lot 3." HOU:3588888.2 5 Less than two months later, on May 31, 2013, Ms. Scott filed her Original Verified Petition asserting claims against Keller Williams, Furrow, and several other parties. (CR 4-101.) Ms. Scott was deposed on January 15, 2014. (2SCR-II 199.) During that deposition, counsel for Keller Williams and Furrow presented to Ms. Scott a plat map depicting the A.J. Grebey Subdivision No. 1. (2SCR-II 261-64.) That plat map and the accompanying dedication indicated that, contrary to what Furrow had represented to Ms. Scott when she was considering purchasing 1104 Peggy Lane, the waterfront lot had been dedicated for use by all of the lot owners in the subdivision. (Id.; see 2SCR-I 197-98). That information had not been disclosed to Ms. Scott when she purchased the property in 2006. (2SCR-II 154.) The Suit As noted above, Ms. Scott filed her Original Verified Petition initiating the suit on May 31, 2013. (CR 4.) She subsequently filed her First-Amended Petition, in which she asserted the following claims against Keller Williams and Furrow: 1. Violations of Section 17.46 of the Deceptive Trade Practices-Consumer Protection Act; 2. Fraud and fraud by non-disclosure; and 3. Negligent misrepresentation. (2SCR-I 14-74.) HOU:3588888.2 6 Keller Williams and Furrow filed traditional and no-evidence motions for summary judgment seeking entry of a take-nothing judgment as to each of these claims (the "Claims Motion"). (2SCR-I 177-222.) Ms. Scott filed a response with controverting evidence. (2SCR-II 1-453.) After taking the Claims Motion under advisement, the trial court issued a letter announcing its ruling. (CR 536-37.) The court granted the traditional motion on the basis of one of the five grounds the Defendants had asserted. Specifically, the court ruled that the information Ms. Scott needed to discover any claims she may have had against Keller Williams and Furrow was available in the Guadalupe County real property records, that "she is held to have known" that information, and that the discovery rule thus did not toll the running of the applicable limitations periods. (Id.) The court denied the no-evidence portion of the motion. (Id.) These rulings were later memorialized in a formal Order, which attached the letter ruling as an exhibit and severed the claims against Keller Williams and Furrow into a separate cause. (CR 534-537.) Keller Williams and Furrow then filed a motion seeking summary judgment on their counterclaim for attorney's fees (the "Fees Motion"). (SCR-II 8-37.) The trial court granted that motion in conjunction with the entry of its Final Judgment. (SCR-II 38-40.) In the Final Judgment, the court (i) incorporated its prior ruling on the Claims Motion, (ii) directed that Ms. Scott take nothing on her claims, and HOU:3588888.2 7 (iii) awarded the Defendants $70,179 in attorney's fees through judgment and conditional fees in the event of an appeal. (Id.) Ms. Scott appealed. (SCR-II 128-33.) SUMMARY OF THE ARGUMENT In its consideration of the Claims Motion and the Fees Motion, the trial court was led astray. Those motions presented arguments that appeared to justify the relief the Defendants sought but ignored controlling precedents that established otherwise. With respect to the Claims Motion, the ground on which the trial court relied in granting summary judgment asserted that Ms. Scott was on notice of public records establishing the status of the title to the waterfront lot and her claims thus were not subject to the discovery rule. But in a series of decisions beginning with Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988), Texas courts have established that constructive notice principles do not foreclose application of the discovery rule to DTPA, fraud, and negligent misrepresentation claims. The trial court erred in holding that they do. The remaining grounds asserted in the Claims Motion were fact-based arguments the trial court did not explicitly rule on. Even if it were appropriate to consider those arguments in this appeal, they did not establish an absence of disputed issues of material fact justifying summary judgment. HOU:3588888.2 8 With respect to the Fees Motion, the Defendants' principal argument was that, as a prevailing party, they were entitled to recover their fees and expenses under Paragraph 17 of the New Home Contract between Ms. Scott and the third-party sellers of 1104 Peggy Lane. However, this Court considered a similar purchase and sale agreement and rejected a similar argument in Lesieur v. Fryar, 325 S.W.3d 242 (Tex. App.–San Antonio 2010, pet. denied). The analysis in Lesieur establishes that, because they were neither parties to nor third-party beneficiaries of the New Home Contract, Keller Williams and Furrow were not entitled to seek an award of attorney's fees under that agreement. The other ground asserted (but not argued) in the Fees Motion could have supported an award only if the trial court made certain required findings that were not included in the Final Judgment. The trial court's rulings on the Claims Motion and the Fees Motion should be reversed, and this proceeding should be remanded for trial of Ms. Scott's DTPA, fraud, and negligent misrepresentation claims. ARGUMENT AND AUTHORITIES I. Standard of review. An Order granting summary judgment is reviewed de novo. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). HOU:3588888.2 9 In connection with a traditional motion for summary judgment, the movant bears the burden of establishing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). In assessing whether there exists a disputed issue of material fact precluding summary judgment, the evidence must be viewed in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When a defendant moves for summary judgment based on an affirmative defense, the defendant must conclusively prove all elements of that defense. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). To accomplish this, the defendant must present summary judgment evidence that establishes each element of the defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996); Booker v. Real Homes, Inc., 103 S.W.3d 487, 491 (Tex. App.–San Antonio 2003, pet. denied). II. The trial court erred in granting the Claims Motion. The Claims Motion asserted five grounds for summary judgment on Ms. Scott's DTPA, fraud, and negligent misrepresentation claims. (2SCR-I 182- 83.) The trial court's ruling granting the motion was based on the second of these HOU:3588888.2 10 grounds — that the information Ms. Scott needed to discover any claims she may have had against Keller Williams and Furrow was available in the Guadalupe County real property records, she was deemed to have notice of those records, and the discovery rule thus was not applicable. In a letter to the parties announcing its decision, the court explained the legal principle on which the ruling was based: The only issue raised by defendants' motions for summary judgment is the defense of the statute of limitations. . . . There appears to be no dispute that suit was filed outside the applicable statutes of limitations for each cause of action. The question before the Court is whether any "discovery rule" or "fraudulent concealment" have tolled the running of the statues [sic]. It is clear that the law in Texas is that fraud prevents the running of the statute of limitations until it is discovered or by the exercise of reasonable diligence it might have been discovered. Ruebeck v. Hunt 176 SW2d 738 (Tex. 1943). However when a person has a right in property, and she claims fraudulent statements are made concerning title to the property, when the public records are open to her, she must exercise reasonable diligence to discover the defect. Exxon Mobil v. Ford, 187 SW3d 154 (Court of Appeals: Beaumont, 2006). Information contained in public records can be ascertained through reasonable diligence and is not inherently undiscoverable. Thus a person must exercise reasonable diligence, and if he could have discovered a defect, she is held to have known it, and limitations will run against her. Swanson v. Stouffer & Assocs., 2014 WL 25 22145 (Court of Appeals: Austin, 2014). Although it is not precisely clear what plaintiff is claiming (either exclusive or non-exclusive access to the waterfront), there is no question the precise nature of her title could have been ascertained HOU:3588888.2 11 from public record. Since she did not discover the defect, if any, she did not exercise due diligence. Therefore the applicable statutes of limitations are not tolled, and suit on her causes of action is banned. The defendants' traditional motion for summary judgment is GRANTED in all things. (CR 536-37 (emphasis added).) The holding that Ms. Scott had a duty to research the Guadalupe County real property records to investigate whether the Defendants' representations were fraudulent or deceptive is contrary to long-standing precedent. A. The existence of public records reflecting the state of the title to the waterfront lot does not foreclose application of the discovery rule to Ms. Scott's claims. 1. The analysis in the trial court's letter ruling is contrary to well-settled precedent. The trial court's letter makes clear that its ruling granting the Claims Motion was based on its conclusion that Ms. Scott had constructive notice of the state of the title to the waterfront lot and that this constructive notice precluded application of the discovery rule to her claims against Keller Williams and Furrow. The Texas Supreme Court and a number of appellate courts, including this Court, have rejected such reasoning. In Ojeda de Toca v. Wise, the Texas Supreme Court expressly held that constructive notice under Section 13.002 of the Texas Property Code and its predecessor statutes does not constitute a defense to a DTPA claim. 748 S.W.2d 449, 451 (Tex. 1988). The plaintiff in that case had purchased a house that later was HOU:3588888.2 12 demolished by the City of Houston pursuant to an order filed in the Harris County deed records prior to the purchase. Id. at 450. The plaintiff sued the seller, alleging DTPA, fraud, and negligence claims. Id. Before the Supreme Court, the seller argued that the DTPA and fraud claims were barred because the recording of the demolition order provided the buyer with constructive notice of its existence. Id. In evaluating the seller's defense, the Supreme Court looked to the purposes of recordation statutes such as Section 13.002. It concluded that such statutes were adopted to protect "intending purchasers and encumbrancers . . . against the evils of secret grants and secret liens and the subsequent frauds attendant upon them. To that end, it is provided that an innocent purchaser, having no notice of liens or adverse claims not disclosed by the records in the manner prescribed by the statute, will hold land as against such claims and liens." Id. at 450-51 (quoting 66 Am. Jur. 2d Records and Recording Laws § 48 (1973)). The Supreme Court rejected the seller's invitation to apply the constructive notice arising out of recordation statutes outside the context of title disputes, noting the absence of any "intent on the part of the legislature to bar DTPA or fraud actions because an examination of county records would have disclosed the seller's deception." Id. at 450 With regard to the buyer's DTPA and fraud claims specifically, the Supreme Court stated: Title to [the Buyer's] house is not in issue, and we perceive no valid reason to allow [the Seller] to escape damages liability arising out of fraud or conduct proscribed by DTPA § 17.46(b)(23). There are HOU:3588888.2 13 defenses to a deceptive trade practices action, e.g., DTPA § 17.506, but imputed notice under real property recording statutes is not one of them. In sum, we hold that recording of the City's demolition order does not relieve [the Seller] from liability to [the Buyer] under her DTPA and fraud theories of recovery. Id. at 451. This Court has applied this reasoning in two subsequent opinions, reversing trial court judgments that denied recovery based on the defendants' limitations defenses. See Salinas v. Gary Pools, Inc., 31 S.W.3d 333, 336-37 (Tex. App.–San Antonio 2000, no pet.); Lightfoot v. Weissgarber, 763 S.W.2d 624, 626-27 (Tex. App.–San Antonio 1989, writ denied).5 As the Court confirmed in Salinas: The doctrine of constructive notice has limited application, and when the rationale behind application of the doctrine does not exist, public records will not be held to create an irrebuttable presumption of actual notice. Salinas, 31 S.W.3d at 336-37. Consistent with that analysis, the Court held that "the doctrine of constructive notice of real property records does not operate to constitute notice to plaintiffs bringing DTPA cases which would begin the running of the statute of limitations." Id. at 337. 5 Other courts of appeals also have applied the reasoning in Ojeda de Toca. See, e.g., Johnson v. Prudential Relocation Management Ltd. P'ship, 918 S.W.2d 68, 69-70 (Tex. App.– Eastland 1996, writ denied) (reversing summary judgment based on defendants' limitations defense with respect to DTPA, negligence, and gross negligence claims); ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504, 509 (Tex. App.–Dallas 1989, writ denied) (reversing summary judgment based on defendants' limitations defense with respect to DTPA, fraud, negligent misrepresentation, and breach of fiduciary duty claims). HOU:3588888.2 14 These precedents were neither cited in the Claims Motion nor referenced in the trial court's letter ruling. They thoroughly undermine the holding that the discovery rule is inapplicable to the claims Ms. Scott asserted against Keller Williams and Furrow. 2. The authorities cited in the trial court's letter ruling did not support the entry of summary judgment. The letter ruling cited two cases — Exxon Mobil Chemical Co. v. Ford, 187 S.W.3d 154 (Tex. App.–Beaumont 2006), aff'd in part, rev'd in part, 235 S.W.3d 615 (Tex. 2007), and Swanson v. Stouffer & Associates, LLP, No. 03-12-00071- CV, 2014 WL 2522145 (Tex. App.–Austin May 30, 2014, no pet.) — as support for the holding that the existence of information in the public records foreclosed application of the discovery rule with respect to Ms. Scott's claims. Neither case stands for that proposition. Initially, it does not appear that in either case the claimants relied on Ojeda de Toca and its progeny in opposing the defendants' summary judgment motions. Certainly, neither opinion cites that line of authority. In addition, in Ford, the issue before the court involved a question of title. The claimant sought to cancel a pipeline easement granted by his predecessor in title on the ground that the easement was defective. Ford, 187 S.W.3d at 157. As discussed in Ojeda de Toca, the purpose of the recordation statutes is to protect good faith purchasers from the loss or impairment of title due to undisclosed liens HOU:3588888.2 15 or adverse claims. Ojeda de Toca, 748 S.W.2d at 450-51. As the issue before the court in Ford was an adverse claim regarding the defendant's title to its easement, it was an appropriate circumstance for application of constructive notice principles. At issue in Swanson was whether the claimants had timely asserted negligence and negligent misrepresentation claims against an appraiser who failed to discover and disclose that the septic system for an RV park the claimants had purchased was insufficient and being operated illegally. Swanson, 2014 WL 2522145 at *1. The case thus did not involve a fraudulent misrepresentation or deceptive trade practice of the sort addressed in Ojeda de Toca. Neither Ford nor Swanson involved the type of claims that Ms. Scott asserted against Keller Williams and Furrow. Because those decisions do not negate the principles announced in Ojeda de Toca and applied by this Court in Salinas and Lightfoot, the trial court erred in holding that the existence of title information in the public records precluded application of the discovery rule to Ms. Scott's claims. B. The remaining grounds asserted in the Claims Motion provide no foundation for affirming the Final Judgment. As noted above, the Claims Motion referenced four additional grounds for summary judgment. The first and third grounds asserted two additional limitations arguments. (2SCR-I 182.) The trial did not address these arguments in its letter ruling or in the formal Order memorializing that ruling. (CR 534-37.) HOU:3588888.2 16 The fourth and fifth grounds were directed toward the merits of Ms. Scott's DTPA, fraud, and negligent misrepresentation claims. (2SCR-I 182-83.) The trial court failed to address these grounds, as well. (CR 534-37.) In fact, the court stated in its letter ruling that "[t]he only issue raised by defendants' motions for summary judgment is the defense of the statute of limitations." (Id. 536.) It thus is clear that the court did not base its decision to grant summary judgment on these grounds. Regardless, the arguments asserted in the remaining grounds did not support entry of summary judgment. 1. Defendants' reference to Ms. Scott's deposition testimony does not support their limitations defense. As the first ground for summary judgment, the Claims Motion argued that Ms. Scott "was unsure of what her legal interest in the Waterfront Park was at the time of closing" and she thus had a duty to investigate the scope of the rights being acquired. (2SCR-I 182.) In support of this ground, the motion relied on one passage from Ms. Scott's deposition. In the cited exchange, Ms. Scott makes clear that Furrow:  "had access to the waterfront access lot and explained that that was a part of 1104 Peggy Lane"; and  "explained that . . . by purchasing 1104 Peggy Lane, I would be purchasing a legal interest in the waterfront access lot." HOU:3588888.2 17 (Id. 218.) Counsel for the Defendants proceeded to question Ms. Scott regarding her understanding as to whether others had access to the waterfront lot, and she stated that as of the closing on 1104 Peggy Lane she didn't know who else may have had access to that property. (Id.) However, the reason for this is made clear in another part of the summary judgment record. In the affidavit submitted in support of her response to the Claims Motion, Ms. Scott stated: In 2006, I purchased Lot 2 and what I believed was a one-half interest in Lot 1 (the waterfront/water access lot associated with the property I was purchasing.) At the suggestion of Movant, LARRY FURROW of KELLER WILLIAMS LEGACY GROUP (Sellers' Listing Agent), one year later (in 2007), I purchased Lot 3 (the adjoining vacant lot to Lot 2) directly from Defendants, JUANITA DENN AND D.R. BARR ("Sellers"), so as to acquire exclusive ownership of the waterfront/water access property. (2SCR-II 151.) The evidence thus suggests Ms. Scott understood that until she purchased the adjoining vacant lot she would share ownership of the waterfront lot and others (who she did not know) would have access to it. That Ms. Scott believed she ultimately acquired exclusive ownership of the waterfront lot is wholly consistent with testimony later in her deposition: "I thought I owned the property, so I thought I was within my right to cut the locks off and put new locks on." (2SCR-II 230.) The referenced deposition excerpt fails to establish as a matter of law that Ms. Scott was uncertain regarding the extent of the interest she was acquiring in HOU:3588888.2 18 the waterfront lot. At most, it establishes the existence of a disputed issue of material fact with respect to that issue. 2. Defendants' reference to Ms. Scott's e-mail to the sellers' counsel does not support their limitations defense. As the third ground for summary judgment, the Claims Motion argued that "Plaintiff's own pleadings acknowledge that she sent an email to Mr. Robert Ritter concerning her legal right to the property more than two years before the date of filing this lawsuit." (2SCR-I 182, 184.) The cited passage addressed a notice of default Ms. Scott had received regarding the vacant lot adjoining 1104 Peggy Lane. As described in the petition, on March 23, 2011, Ms. Scott sent an e-mail responding to the notice that "1) disputed the debt amount; and 2) requested the legal instrument which proved the propert(ies) she purchased were indeed "waterfront" water access properties." (Id. 219.) The referenced e-mail was included as an exhibit to and quoted in the Claims Motion. (2SCR-I 186, 212-14.) Significantly, the motion omitted the last three sentences of the discussion of the title issue. Quoted in full, the relevant passage in the e-mail stated: DISPUTE II: The property described in my paragraph No. 1 above, was supposed to be purchased with the same water-front access as the property described in my paragraph No. 2 above. However, in reviewing the respective deeds of trust, the language is not the same. Lot 3 in the A.J. Grebey Subdivision is also a part of the A.J. Grebey Subdivision No. 1, a resubdivision of a portion of Elm Grove Camp"; but the Deed of Trust nor the other recorded title documents reflect HOU:3588888.2 19 that from the acquisition. In simple terms, I purchased Lot 3 with all of its water-front privileges as a stand-alone property. According to the recorded title paperwork, those water-front privileges did not carry over to me during the acquisition. This will have to be rectified immediately. The purchase prices of Lot 2 was commensurate with it being "water-front property", with all the same water-front privileges as was spelled out in the deed to LOT 3. THEREFORE, I will await your corrected title/paperwork, so that we may put this matter to rest. (2SCR-I 213-14 (shading added).) The quotation from this e-mail included in the Claims Motion stopped with the sentence immediately preceding the shaded excerpt. (2SCR-1 186.) It thus sought to create an impression that Ms. Scott had doubts regarding the property interest she had acquired and was on notice to investigate her title and any potential claims against Keller Williams and Furrow. (See id. 184.) But as the shaded sentences reflect, Ms. Scott had no doubt regarding the interests she had acquired. Rather, she was seeking corrected title documents properly reflecting those interests. The cited e-mail fails to establish as a matter of law that Ms. Scott was on notice of her potential claims against Defendants. It thus provided no basis for summary judgment on their limitations defense. HOU:3588888.2 20 3. Defendants' reference to Ms. Scott's deposition testimony does not establish an absence of disputed issues of material fact regarding her claims. As the fourth ground for summary judgment, the Claims Motion argued Ms. Scott admitted in her deposition "that she was led to believe by Larry Furrow that her access to the Waterfront Park was shared with her neighbors." (Id. 182.) In support of this argument, the motion cited the same deposition excerpt addressed in connection with the first ground above and an additional excerpt in which Ms. Scott identified some similarities between her purchase of 1104 Peggy Lane and her purchase of another property in New Braunfels. (Id. 182, 218, 221.) The first deposition excerpt is fully addressed above. See supra II.B.1. For the same reason it fails to establish the Defendants' limitations defense, it fails to establish an absence of deceptive acts, fraud, and negligent misrepresentations by Keller Williams and Furrow. The second excerpt also fails to establish an absence of disputed issues of material fact. In that excerpt, Ms. Scott stated that the transactions involved similar characteristics — improved tracts with an accompanying interest in waterfront lots. Seizing on her testimony that the New Braunfels waterfront lots were shared with other residents in the neighborhood, the Defendants argue Ms. Scott thereby acknowledged "that Defendant Larry Furrow's advertising of HOU:3588888.2 21 The Property was accurate; he was selling a lot that had access to a community waterfront area." (2SCR-I 187.) The argument fails for a number of reasons:  The property listing did not state that 1104 Peggy Lane was being sold with "access to a community waterfront area." The listing described the property with the abbreviation "WTRFR" and described the lot as "CRNR, WATER." (2SCR-II 149.)  Ms. Scott has never acknowledged that the advertising of the property by Keller Williams and Furrow "was accurate" or that she understood she was merely acquiring "access to a community waterfront area."  Ms. Scott has indicated that it was represented she would acquire exclusive ownership of the waterfront lot upon purchasing 1104 Peggy Lane and the adjoining vacant lot, and her subsequent actions were consistent with that belief. See supra II.B.1. The deposition excerpt suggests that Ms. Scott believed there were similarities in the two transactions, but it does not establish she believed they were identical in all material respects. Viewed as a whole, the summary judgment record supports a conclusion that, based on the Defendants' representations, Ms. Scott understood she would be able to (and that she ultimately did) acquire exclusive ownership of the waterfront lot. Accordingly, there are disputed issues of material fact precluding summary judgment on her claims against Keller Williams and Furrow. 4. Defendants' unsupported argument regarding conspiracy and fraud by non-disclosure claims provides no basis for affirmance. The Defendants' final ground for summary judgment asserted that "Plaintiff has failed to provide adequate evidence in support of her claims of conspiracy and HOU:3588888.2 22 fraud by non-disclosure." (2SCR-I 183.) The Claims Motion referenced the First- Amended Petition as support for this assertion but did not include any other argument or evidence. This ground misstates the burden in the context of a traditional motion for summary judgment. Keller Williams and Furrow bore the burden of coming forward with evidence negating at least one essential element of Ms. Scott's claims. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Ms. Scott was not obligated in her petition to present evidence proving up those claims. The Defendants' fifth ground presented nothing for consideration. III. The trial court erred in granting the Fees Motion. The Fees Motion asserted two grounds for recovery of attorney's fees and costs. (SCR-II 10.) First, it argued that Paragraph 17 of the New Home Contract entitled Defendants to recover their fees and expenses as a prevailing party in the litigation. Second, it asserted that an award of fees and expenses was appropriate under Section 17.50(c) of the Texas Business and Commerce Code. In its Final Judgment, the trial court granted the Fees Motion and awarded the Defendants $70,179 in attorney's fees through judgment and conditional fees in the event of an appeal. (SCR-II 39.) As discussed below, that award is not supported by either ground for recovery asserted in the Fees Motion. HOU:3588888.2 23 A. The Defendants were not entitled to pursue an award of attorney's fees under the New Home Contract. Paragraph 17 of the New Home Contract provided: ATTORNEY'S FEES: The prevailing party in any legal proceeding related to this contract is entitled to recover reasonable attorney's fees and all costs of such proceeding incurred by the prevailing party. (SCR-II 22.) Generally, in order to enforce rights under a contract, a claimant must be either a party to the contract or a third-party beneficiary of it. Lesieur v. Fryar, 325 S.W.3d 242, 251 (Tex. App.–San Antonio 2010, pet. denied). Because Keller Williams and Furrow were neither parties to nor third-party beneficiaries of the New Home Contract, they were not entitled to rely on or enforce the attorney's fees provision. 1. The Defendants were not parties to the agreement. The first paragraph on the first page of the New Home Contract provided: PARTIES: D.R. Barr Juanita Denn (Seller) agrees to sell and convey to Stacey Jo Scott (Buyer) and Buyer agrees to buy from Seller the Property described below. (SCR-II 17.) Paragraph 8 further provided: BROKER'S FEES: All obligations of the parties for payment of broker's fees are contained in separate written agreements. (Id. 20 (emphasis added).) The clear purpose of Paragraph 1 was to identify the parties to the contract, and neither Keller Williams nor Furrow was identified as a party. In addition, HOU:3588888.2 24 Paragraph 8 established that the relationships, if any, between the sellers and any broker and between Ms. Scott and any broker were to be memorialized in other agreements. Based on the plain language of these provisions, it is clear that Keller Williams and Furrow were not parties to the New Home Contract.6 This conclusion is supported by this Court's holding in Lesieur v. Fryar, in which the Court construed a similar purchase and sale agreement with identical Parties and Attorney's Fees provisions. See Lesieur, 325 S.W.3d at 251-52. In that case, the Court held that Paragraph 1 of that agreement "was a definitional rather than merely a descriptive provision" and established the seller and buyer as the only parties to the agreement. Id. at 252. 2. The Defendants were not third-party beneficiaries of the agreement. Texas precedents establish that there is a presumption against conferring third-party beneficiary status on non-contracting parties. See Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); Lesieur, 325 S.W.3d at 252. Any doubts must be resolved against the existence of a third-party beneficiary. Lesieur, 325 S.W.3d at 6 This is consistent with the following affirmative defense included in the Defendants' Third Amended Answer: Defendants deny the existence of a written contract or written warranties, express or implied, between themselves and the Plaintiff and/or plead that such instruments are without consideration or that the consideration of the same has failed in whole or in part. (2SCR-I 170.) HOU:3588888.2 25 252. Thus, "in the absence of a clear and unequivocal expression of the contracting parties' intent to directly benefit a third party, courts will not confer third-party beneficiary status by implication." Tawes, 340 S.W.3d at 425. There are two types of third-party beneficiaries who may enforce a contract. A "donee beneficiary" is one who, when the contract is performed, will receive the benefit of that performance as a pure donation. Lesieur, 325 S.W.3d at 252. A "creditor beneficiary" is one who receives the benefit of the contractual performance in satisfaction of a legal duty owed to the beneficiary. Id. However, benefits that are an indirect or incidental result of the performance of a contract are not sufficient to confer third-party beneficiary status on a non-contracting party. Tawes, 340 S.W.3d at 425; Lesieur, 325 S.W.3d at 252. The intended beneficiaries of the New Home Contract were the sellers, who would be paid the sale price, and Ms. Scott, who would receive title to the property. Nothing in the contract suggests an intent to confer a direct benefit on Keller Williams or Furrow as a donee or creditor. In fact, the language of Paragraph 8 made clear that any benefits they were to receive as brokers were governed by "separate written agreements." (SCR-II 20.) Consistent with the Court's conclusion in Lesieur, the parties to the New Home Contract did not contract with the intent to directly benefit the realtors involved in their transaction. See Lesieur, 325 S.W.3d at 253. Any benefit Keller HOU:3588888.2 26 Williams and Furrow received as a result of the performance of that contract was merely incidental and insufficient to confer third-party beneficiary status. See id. Keller Williams and Furrow had no contractual right to rely on or enforce Paragraph 17 of the New Home Contract. See id. To the extent the trial court based its award of fees on that provision, it erred. B. The Final Judgment contains no findings supporting an award of fees under Section 17.50(c) of the Business and Commerce Code. As a second ground for their Fees Motion, Defendants asserted that Ms. Scott's DTPA claim was "groundless in law and fact, and brought in bad faith for the purpose of harassment," entitling them to an award of attorney's fees under Section 17.50(c) of the Business and Commerce Code. (SCR-II at 10.) That section provides: On a finding by the court that an action under this section was groundless in fact or law or brought in bad faith, or brought for the purpose of harassment, the court shall award to the defendant reasonable and necessary attorneys' fees and court costs. Tex. Bus. & Com. Code Ann. § 17.50(c) (West 2011). The statute specifically requires that an award of fees be supported by an affirmative finding by the trial court that the plaintiff's claim was groundless or brought in bad faith or for the purpose of harassment. Texas courts have consistently reversed awards of attorney's fees under Section 17.50(c) in the HOU:3588888.2 27 absence of such findings. E.g., Jones v. Smith, 649 S.W.2d 29, 29-30 (Tex. 1983); Marker v. Garcia, 185 S.W.3d 21, 30 (Tex. App.–San Antonio 2005, no pet.). The trial court's ruling on the Fees Motion was set forth in the Final Judgment, which did not include any findings that would justify an award of fees and costs under Section 17.50(c). (SCR-II 38-40.) Accordingly, that provision does not support the judgment awarding the Defendants their attorney's fees and costs. CONCLUSION AND PRAYER Ms. Scott purchased 1104 Peggy Lane and the adjoining vacant lot because Keller Williams and Furrow represented that ownership of those properties carried with it ownership of the waterfront lot. But in their Claims Motion and Fees Motion, Keller Williams and Furrow argued that Ms. Scott should have known better, that she should be denied any opportunity to pursue recovery of the damages resulting from their deceptive acts, and that she should pay their attorney's fees and costs. The motions, however, failed to acknowledge the controlling precedents that undermined the legal contentions asserted in support of these arguments and on which the trial court erroneously relied. The trial court's Final Judgment allows Keller Williams and Furrow to evade responsibility for their conduct, leaving Ms. Scott to bear the financial impacts of HOU:3588888.2 28 their deceptive acts and fraudulent representations. The applicable statutes and precedents do not support such an unjust result. Accordingly, Ms. Scott respectfully prays that this Court (i) reverse the trial court's Final Judgment in all respects, (ii) remand this cause for further proceedings, and (iii) grant her such other and further relief to which she may be justly entitled. Respectfully submitted, By: /s/ Frederick D. Junkin Frederick D. Junkin State Bar No. 11058030 fredjunkin@andrewskurth.com Andrews Kurth LLP 600 Travis, Suite 4200 Houston, Texas 77002 (713) 220-4200 (713) 220-4285 (fax) ATTORNEYS FOR APPELLANT STACEY SCOTT HOU:3588888.2 29 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Brief of Appellant Stacey Scott was forwarded to all counsel of record by electronic service on this 30th day of September, 2015. /s/ Frederick D. Junkin Frederick D. Junkin SERVICE LIST Scott F. Cline Vaughan E. Waters Thornton, Biechlin, Segrato, Reynolds & Guerra, L.C. 100 N.E. Loop 410, Suite 500 San Antonio, Texas 78216-4741 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the undersigned certifies that this brief complies with the word limits of Rule 9.4(i)(2)(B) because, exclusive the parts of the brief exempted by Rule 9.4(i)(1), it contains 6,325 words. /s/ Frederick D. Junkin Frederick D. Junkin Attorney for Appellant Stacey Scott Dated: September 30, 2015 HOU:3588888.2 30 Appendix 1 Final Judgment (SCR-11 38-40) SFC/JYA 02/19/2015, 38741 CAUSE NO. 13-1125-CV-A STACEY SCOTT § IN THE DISTRICT COlJRT Plaintiff, § v. ~~ GUADALUPE COUNTY, TEXAS LARRY FURROW AND KELLER ~M/n 1~,15 ~ WD;.LIAMS LEGACY GROUP ~~~'Q.ru( ~ P~fendants. § 25m JUDICIAL DISTRICT FINAL JUDGMENT On this day came to be heard the above styled and numbered cause. All parties appeared by and through their re~pective counsel and announced "ready." The Court proceeded to take up this matter for consideration in its due order on the docket. The Court finds that it previously granted summary judgment in favor of Defendants herein, LARRY FURROW and KELLER WILLIAMS LEGACY GROUP, by order. dated November 14, 2014, in Cause Number 2013-1125-CV, in the 25th Judicial :Oistrict Court of Guad~upe County, Texas (the "Main Cause"), ordering that Plaintiff take nothing against the Defendants on all of the Plaintiff's claims; the Court further ordered that Plaintiff's claims against Defendants be severed into a separate cause-assigned as Cause Number 2013-1125- CV-A, in the 25th Judicial District Court of Guadalupe County, Texas (the "Severed Cause"). The Court further finds that the only remaining issues pending before this Court in this, the Severed Cause is the counterclaim by Defendants against Plaintiff seeking recovery of attorneys' fees and costs in favor of Defendants and against Plaintiff. After examining all of the pleadings on file in this case, reviewing Defendants' Traditional Motion for Summary Judgment on Defendants' Counter-Claim for Attorney's Fees Page 1 of3 Page 38 and the proper summary judgment evidence attached therein and any responses filed thereto, and hearing and considering the arguments and authorities presented by counsel, finds that Defendants' Traditional Motion for Summary Judgment on Defendants' Counter-Claim for Attorney's Fees is well-founded and should be in all things GRANTED. It is, therefore, ORDERED, ADJUDGED, and DECREED as follows: 1. The Court hereby incorporates the Summary Judgment entered by this Court in favor of Defendants LARRY FURROW and KELLER WILLIAMS LEGACY GROUP, by order dated November 14, 2014, originally in the Main Cause and ORDERS that Plaintiff Stacey Scott take nothing on all of her claims against Defendants LARRY FURROW and KELLER WILLIAMS LEGACY GROUP. 2. The Court Further Orders that Defendants LARRY FURROW and KELLER WILLIAMS LEGACY GROUP do have and recover from the Plaintiff Stacey Scott, the following sums as reasonable and necessary attorney's fees: A. Through the trial of the Plaintiff's claims in the Main Cause and the Severed Cause attorney's fees: $ 70,179.00 B. fu the event appeal is perfected to the Fourth Court of Appeals, the additional sum of: $ 2Q,QQQ 00.. ~()/~ C. In the event of submission of and/or a response to a petition for review to the Texas Supreme Court the -(b additional sum of: $ 1Q 5 0QO.~ . ' ) ~ . f 0. In the event the Texas Supreme Court grants the ~ ff)ft.D petition for review or orders full briefing, the additional sum of: $ 26,666.66 In addition to the foregoing, all costs herein incurred are hereby adjudged against Plaintiff Stacey Scott. Page 2 of3 Page 39 .. !; It is the intention of this Court that this Judgment be a full, final, and appealable judgment disposing of all of the parties and all of the relief which is addressed in this, the Severed Cause. It is, therefore, further ORDERED, ADJUDGED, and DECREED that any relief sought in this Severed Cause and p.ot otherwise addressed in this Judgment, is hereby, and in all .. . . JUDGE PRESIDING APPROVED AS TO FORM: THORNTON, BIECHLIN, SEGRATO REYNOLDS & GUERRA, L.C. Fifth Floor - One International Centre 100 NELoop 410 San Antonio, Texas 78216 (21 0) 342-5555 (210) 525-066~ BY:~~~~~~~~~--~ Scott F. Cline. State Bar No. 04394500 . ATTORNEYS FOR DEFENDANTS LARRY FURROW and KELitER WILLIAMS LEGACY GROUP Stacey Scott, Pro Se 634 Ashmore Ave. New Braunfels, Texas 78130 Page3 of3 Page 40 Appendix2 Order Granting Claims Motion (CR 534~37) ~~~be l,Q1Ji~fli')·:~yJ;~l~: Cause No. 13-1125~CV 'OChJ')l \XAJ"i {\JJ LV )X. STACEY SCOIT § IN THE DISTRICT COURT v. § § - § 25m JUDICIAL DISTRICT @ JUANITA DENN, D.R. BARR, LARRY § FURROW, KELLER WILLIAMS LEGACY § GROUP, PATRICKDENN, ROBERT § RIITER, and CAROL MATHEWS § GUADALUPE COUNTY, TEXAS ORDER ON DEFENDANT KELLER WILLIAMS LEGACY GROUP MOTION FOR TRADITIONAL AND NO·EVDENCE SUlVlMARY JUDGMENT Having considered the motions, responses, and oral arguments of both Plaintiff and Defendants' counsel, this Court rules on J?efendants Larry Furrow and Keller Williams Legacy Group's Motion for Traditional and No-Evidence Summary Judgment and all objections to Summary Judgment Evidence as follows: Defendants' objections to Plaintiff's expert broker opinions. and Plaintiff's supplemental support affidavit are sustained. Plaintiff's objections to the use of her First Amended Petition are overruled. Defendants' Traditional Motion for Summary Judgment is Granted in all things. Defendants, No-Evidence Motion for Summary Judgment is Denied. This court orders that by granting Defendant's Traditional Motion for Summary Judgment all causes of action brought by Plaintiff against Larry Furrow and/or Keller Williams Legacy Group are severed and shall now be referenced as cause no. Letter Ruling on this matter dated November 3, 2014 attached as Signed this the / ~~ tJ~14. JUDGE PRESIDING ORDER ON DEFENDANTS LARRY FURROW AND KELLER WILLIAMS Page 1 of2 LEGACY GROUP'S TRADITIONAL AND NO~EVIDENCE MOTION FOR SUMMARY JUDGMENT. Page 534 APPROVED AS TO FORM: Scott F. Cline Jack W Hawthorne III 100 N.E. Loop 410, Fifth Floor San Antonio, Texas 78216 Stacey Scott 634 Ashmore Ave. New Braunfels, Texas 78130 ORDER ON DEFENDANTS LARRY FURROW AND KELLER Wll.,LIAMS · Page 2 of2 LEGACY GROUP'S :TRADITIONAL AND NO~EVIDBNCE MOTION FOR SUMMARY JUDGMENT. Page 535 P~YLLIS BUSH JVDY CADDELL OFFICiAL COURT RePORTER COURT ADMINISlRA'fOR I COORDINATOR rw.c. ·!l(iif@m{a{C :4m!.25tfl. Jutfwltl! 'lJi.strltt Jucfee COl.ORADO, GONZALES, GUACJAI.UPE! &LAVAOA COUNTIES November3, 2014 Stacey Scott Scott F. Cline ProSe Thornton, Bleohlin, Segrato, staceyscott549@msn.com Reyno/d3 & Guerra, L. C. (713) 355..9689 Re~ No. 13-l125. .CV; Stacey Scott v, Juanita Denn, et al; In the District Court; Guadalupe County, Texas . Counsel, I have reviewed the traditional and no evidence motions for SumntiUY judgment filed by defendnnts Furrow and Keller Wllliwns, the plaintiffs response Emd all exhibits. The following is the ruling of the Court. Defendants' objections to plaintiff's expert broker opm10n~ and. plaintiff's supplemental supportive affidavit aro SUSTAINED. Neither affidavit is pertinent to the issues befor~ the Court in this motion, The plaintiff's objections to the use of her 1st amended petition is OVERRULED. She also objected to any documents not complying with TRE 802.J 803. 804 or 901. She did not however specify to what dooum~;~ntsJ if any, shew~ objecting. Her objections, if any, are waived, · The only issue n~ised by defendants• motions for summary judgmont is the defense of the statute of lhnitations. Plaintiff does not deny that ~mit was filed outside the applicable limitations but asse:rts the filing ts not banned beca11se the "discovery rule'' and because of "frandulent concealmeoth. No authority was cited for either proposition. by plaintiff, but she does oite some summary judgment evidence. Thexe appears to be no dispute that suit was filed Outside the applicable statutes of limitation for ea.oh cause of action. The question before the Court is whether any "discovery role'' or Hfr~udulent conoea.hnent" have tolled the ru.nning of the statues. It is clear that the law in Texas is that fraud prevents the tutll'ling of the statute of limitation~ until . it is discovered or by the exe.rolse of reasonable dilig~nce it might have been discovered. Ruebeok v. Hunt 176 SW2d 738 (Tex. 1943). 211 WEST CoURT STRESY, ROOM ~20 • SSG 188 EXT. 1:}00 • FAX; (830} 3QJ•OIJ47 Page 536 However:' when a. pE:rson has a right in property, and she clahns fraudulent statements flre made ooncerning title to the property, w.b,en the public records ~e open to her, she must exercise reasonable diligence to discover the defect. Exxon Mobil v. Ford, 1S7 SW3d ~54 (Court of Appeals: :Beaumont, 2006). lnformation contained in public reoords coo be ascertained through reasonuble diligence and is not inherently undiscoverable. Thus a person must exercise reasonable diligence, and Jfhe could have discovere~ a defect, she is held to ·have known it, and limitations wlll run against her. Swanson v. Stouffer&. Assoos.1 2014 WL 25 22145 (Court of Appeals: AU$tin, 2014). Although it is not precisely clear what plaintiff is claiming (either exclusive or non-exclusive acoess to the waterfront)1 there is no question the precise nature of her title could have been ascertained from public reoord. Since she did not disooveJ: the defect, if any. she did not exercise clue diligence. Therefore the applicable statutes of limitations a:ro not tolled, and suit on her causes of action Is banned, The defendan~' traditional tnotion for sumwary judgment is GRANTED in all things, A no..-evidence motion for sununary judgment is inapposite for an issue on which the movant has the burden of proof. Thetefore defendants' no-evidence motion for summazy judgment is OENIED. I request that Mr. CUrie prepare an order reflecting thi~ ruling and forward it me for entry, with a ·copy to the other parties. Any objections to the form of the order must be reoeived within one week of my receipt ofMr~ Cline's proposod ordor. W.C. Kirkendall ·cc: lJonald Jamela Robert McNiel Robert Ritter Page 537 Appendix 3 . Property Listing for 1104 Peggy Lane (2SCR-II 149) , ,,, .. Agent Report "" ~~~~i~.~ Addr: 1104 Peggy Ln Virtual Tour Link: Status: New Class: Single Residential Area: 2700. Grfd: 4l)2CS LP: $ $135,000 !ntSt./Oir: Hwy 46 to Elm -Gr.ove to Pecan Pt to Schley to Peggy Lane SubdMslon: Not in defined subdivision Type: Single Family D... City: Seguin Zip: 78155 AdSf: Guadalupe CAN#: 00000000000000 ~ 2 Block: 0 CB/NCB: 0 "\. ' 0 .- Legal: Part of lot 2, AJ Grabey SUbd til .,. SizeDist: .124 BR: 2 Apx Ag~: o "')..7:.,~ . . Navarro Isd FBaths: 2 HBaths. o ) This contract Ia not subject to Buyer being approved rorflnanctng and does not lnvolva FHA or VA financing, Q B. ASSUMPTION: The assumption of the unpaid principal balance of one or more promissory notes described In the attached TREC Loan Assumption Addendum. lXI c. SELLE:~ FINANCIN~: A promissory note from Buyer to Sellar of$ 131,500. oo • secured by vendofs and deed of trust liens, and containing the terms and condlllons described In the attached TREO St;~fler F.lnanclng Addendum. If an owner policy of title lnsura~ce Is furnished, ·suyer shall rumlsh Seller with a mortgagee policy of Utle Insurance, 6. · EARNEST MONEY: Upon execution of this 'Contract by both ~rtles, Buyer shall deposit $.,.,1~·o'""o~o.....,.o.. ,.o. ._._ _ __ as earnest money with _Alamo Witle co rr;ana:Ls Hardtenstein , as esorow agen~ at 109 North· Biyer Seguin. Wexas 79155 (address). Buyer shall deposit additional earnest money of$ n/a Wlth esorow agent within _ _ _ days after !he effecttve date of this contract. If Buyer falls to deposit. the e~;1rnest ·mo.nay as required by this contract, Buyer will be fn default. 6. TITLE POLICY AND SURVI:Y: A. TITLE POLICY: Seller shall fl.lrnlsh to Buyer at 00 Seller's 0 Buyers expense an owner polloy ot UUa Insurance (Title Polley) Issued by &!A.t!Lllaii.llmroperties n·lhCI ceJHRc:~ted area, If your propaJ:tY 1~ loaatad ln a oortlfiOi\led arenthere !llEIY ba special costa or chatgns tllat you will be requlr(Jd to pay befo.~ you oan reoolll~ water or sewer $ftrVlca. lhere may be .a pmiod requhd ro conofruolllnee or o!h~r faclllUas n~ce~sary to provide water or sewer ~arvlce to your prOl'>MY.. Yoo .ere edvlaed to datermlna If lhd property Is In a tmi11flcated area and ccintaot the uHlllV saJVIce pro~r l.a de~Wnfne the costlt1at you WlH be tllt!UIN!'Ope~y. The undersigned a~er hereby ~cknowladges reoalpt of \he roreg~ M&eat or hefore lha execuUoo o( a blndlr!9 tonlract for tha purchase of the teal property deacrlbad In P~~1®h 2 c;q at Ol~lng of pur~lta~e of the real property. (7) PUI;ILIC IMPROVEMENT DISTRICTS: tf 1b& Propt)fty fs In a publlo Improvement district, §5,014, Property Codea requires Seller to noury ~ ~ full.oWS! As e purchaser of lhls patce! ()f real pro}>!rty you aM obligated to pay an assesemant to a rn~alHY. or county for an Improvement project undertaken by a pUbl!o lrilproyament dlstrlot uncfer ~ar S'72, local Government Code. The Ecisessmenl may be due annually ar In parlodla lnstellmenlJ. M(h~ PR~JIM. oonc~nhlg. Ute emount. of the SS$essmmt Bnd lhe cJu~ da.tea or· that assessment may be: obtain&d tom ~ mttnftlpalfty or Wr.h'lf1 kivyfng ftra asu-SSMellt. lrK! amount of the aasessmanl$ ls subjr,ct th• d'tooga-. Your fall~ue ti> ~a1- Ute as~r~U*!t.& tami nlSGJft.ln <~: ~n on and the foreclosure of your propt'tt.t;(.. 7, PROPERTY CONDITION: A. ACCESSa INSPEOT,ONS ANO !.ITIUT1e.s: :S~et$0011 pmnl! ~er atJd Buyeh ~ att&ss fo lite P~eJIY at reasonable Hmas. Buyer may hava lfle Prop:erty fft~ bY t.spet(OJs sE!teded by Buy-enmd lfbtansml b'/ TREC or olharwlsa permlUad by faw• !a· tr~l(9;\ fi'lsp.achons. Sefl{lr snalJ pay tor tumlng em exrsttng utlUUa~ for h•sP.aoUons. B. ACCEPTANCE Ot= PROPERTY CON.mnoN: iltWer aCCflpfn tOO Pm~rtv In Hs present CMdllkm; provlded Seller, at Sellars lmprovemenl8: _expense _ _ 1_ _~-~~ling shall _ _ _ _ _ _speclflc _ _antf _ _repai1s _treatments; ____ and_make _the_folkmfng __ C. WARRANTU!s: Exoepl as e>!prtlM~ :wtt Q, ffl "ds oonllact. a sepaata wilting, or pitWidad hY Jiffl. S8ller makes no other express warmnfl~ &i!lia!t l!fwll ~lgn to Buyar at closing aH asslgnsbla manufatiurer warranties. D. INSULATION: As required by Fe®rcifTI'ada· CommlssWn ReguraflOM, the' fnl.$-.~M.i2edffQll~;I'J~ntMtr.~~a. C, B~OKERS' FEES: All obllgaUons of lf"l~. partli?.a: ~· ~~!l¥1't'n3rnlt. ~f lltmoli:&J~~: Oftll$ eJ:e ~l!lli'9Dn~ rQ; ~ac;nll:a; V«rilfam '· agreements. t. 9. ClOSING: A.. The cfo.alng of the sate will be on or b4\tS~ tW 22 1 ~~ 'Cf wltfiin 7 dayufter ob]ecUons mads under ParagrPph Glllt'r\W~ ~ oumd orw.a'll1.~tl. ~lr.hfwer date ia ·latt~r {C'!o!MD Dam). n ellhar party falls to close the sale l!llf ·lt\lll! IOI:®inn:r Oat~. til& oon..a6il'st.tlfln.g f'irty m.v ~JXe!dso the r.emedlas (X)ntalned in Pamgraph 16. a. At closing: (1) Seller shall ~acute and deliver a. ~~~Olf.all~l\ty rpense exceeds an amount ~ ~d In ihls contr.aet for such e}l)>ellSa to be prdd by a ~rty. that party may tetmlnata this contr®t unt\i~.hl·~ party agr~ io·pay well exce;e. Buyet nmy not pay charg~ .and feeti expressly j)rbhlblled by FHA- ·v~ T~Vetarana Hoostng A~sfstance Program or olher gawmmental loan program regulaUons. 1~. PRORATIONS AND ROLt.aACKTAXE.S~ A.· PRORATIONS: Ta"llea for the current-~~ -~enanoe f(f.&S., ·»ssassments, dues alld roors vnl ·ba prOT8led through 1he Clos!Jlg Dala, The tax ~aU® may be calculaled taklng fnta Gonslderatlon any change .lo eKemptlans that will affect the current~ tax~. Jrtaxes for the current year vary from the ~mount prorated at closing, the parties ahf!ll adjust the p~s Ylhoo tax s(al.emenfs for tho current year are available. If Wli!S. are not patd at or prior to closing, Buyer wlU.be obtrgat-ad lo pay wxes fur the current year. B. ROLLEIACK TAXES: If Seller'6 changa. rn ·u.se at lhe Property prior to cl04lng or denial or~ special use valuation on the Property results In additional W.XaSJ pendlles or lnler~t {J.\Gae~smenl!i) tor periods prior to clo$lngl the Assassrnents. Wlll be the obUgaUon of S'elfer. ~-allons Imposed by thls par4tgraph wlll sur\tlve cloiing, 14, CASUALTV LOSS: If any part of th& Pr.opEd] "!;s dcltnaged or destroyed by ffr'e or other casualty after the effective date of this Q6ntraata Seller llhall reatora.lha ~to Us prevlous.condlUon as soon as reasonabl~ po!Sslble, but In i any e-vent by the Closing Dale. If Selter filHs ·~a do so dtJeto factors beyond' Sofl&,-.8 control, Bll}'ar·may (a) i tennlnate this oonttact and tha aarn~ul f1t0111!¥ IPllt1 b:a ~funded to Buyer {b) extend the· time fpr performance up to I 15 deya snd the Closing Date wm b& ext~dedxa MOO&Sary or (o) aonept the. Property rn 1\s damaped condiUan with an anstgnment of tnsuran~ proc~G end~ dedit ftom Sbller .at oloslng In the emount of iha deducllble under «te (n!~r.snci!S poiicy. &N-ecs (Jbfigatlcrt$ trmlttf.bir.,varagmph are lndapendent of eny other obiTgatrons Df SaBer under We tonb~cf. . r 15~ Dt:PAUL.T: lfBuyer-faH$ to OOPIPI1wftkW.IsCG~JlhWi, Buyer will b~ Jn default, and Selle( may (a) enforce fij)eclfia perfat~riltum!dlmtQfldl!iilJW!IMMl\~WIUW~mtifiJm· the earnest money. lf only ona par!tm~e:s.wlilfum~ilMI'illl'nrlli'ltl~ISM'~Inm~awr.mvtqanannalllpr~Jmptlw provldo a copy of the dam and· to lht1 Uflet ~\If. Jf es4lql\W agent dfles n(ll r~ve w11ften Clb~ f(j the demand from the other parfy wlthln 15 ~s".~uow agen6 rooy fifgllt~ the \W!mstr:nomw tOll¥!&.~~ demand radttced by the amount of unpaldl~ rntum~d oo b~traff cf llie pany 1~M11g the~ tJWt~ and ei!C(OW agent may ~y the same: to tha· trecitoJs. ff esm:ow agent OOmJllfe.s Villh lha pc~ of thfu paragraph, eaoh party hereby releaao$'. esru:ow. "genU nt~m raiR adom'w cfafms relat~d to the ~JJR:at of tho earnest money. D. DAMAGES: Any party who wrongfuUy &lli;·ot·~'laes ta srgn a reteas6 am:eptabfa to tlle esoreytr agent wfthfn 1 days of recetpt of ihe request will b$ r•to tJva cthor pa1ty for liquidated damages of three 11mes the amount of U1a ~mast mqno.y. e. NOTtCES: Escrow .agant's notiCes Vt"W bB eDWm wl\en sent fn CQITlpfiance wUh Parauraph 21. Motlca of objection to the demand wm ba deemed~~ upon raeelpt by escrow agent. 1$, JmPRE.SeNTA'TJO'NS! Sefier reprooent'!l ~.iii llftm Clostng Dale there will be no llerts, 1\Ssessmehts, or sacurlly IJlfetesls agatn~f lh~ Property which will ~ b!t~ed ouf ol the salas proceeds. Uany repnasenfaJlon of sener hi thfs conlracll$ untrue on the Closing D9te. Sefltlr.wim~alrn~taf:tl~. 20. fEDERAL TAX REQUIREMENTS: If S~rar. l!i. ~;*fl.:relgn ~t:!idlVI\~ £IS: 11119tihad ~ a!SJ~I~~Illn lll\WI, 11Jll'lr $'ellla!T bill3i ~ deliver an aftkl~lt to Buyer Uta! Sellerli¥ oot,_a,tt~ par.sGtM\.wtl'lmr.nl!llli!fU stlalllwUM~IiHtmllllllt~sn!UJjlrmll:HUb'. an amount aufflclent to comply with a~~ tax· tmw· a111a ~m.t~&lr tflnt: sann.e w• fl~AI! tm~l!laft ftr~UI3~t &-~will:~ together with appropriate tax ronns. lntamaUI.G'!MtiU&t S'BWI~61•ttmiiiiltll!!lll!!: r~l'tJ!IfllG! flll~twwrla'$rrn t:ep~r.t'$11f cturM~ l't11 excess 9f ef>*lcllled 001ounlsls recelvi!tlfn.th&ifumWMtlbn. 21. NOTICES: AU nollc:$S front one party ~ lfie. ctl'ler must bet In wrltktg and are efteetiva wfmn mailed to, hand·dellverod at, ~r transmitted by faoslrolle orCJTecu·onla (roll$mltsfon 11$ foll~v$: I .i' Toauyer To~eller ~ at: ~h l. Jg;m;!.tq Penn I J(tl t SS ::fEetB-Du st.l?k~ ! ~ ~troN ctJ1l9.: ljf~Z!-Z., ~~guin. Wflxas 191S5 I ·relepl1ona: C70'Zl 52!i! ... 3527 I I Facsimile: _ _ _ _ __ rflUiil.mUe:. _ _ _ _ _ _ _ _ _ __ E-mall: e.n1all! _ _ __.,.....__~---- KW-000026 Page 205 • • --------yib4_"P.,...e_g_gy~La-n~--------- Cornfi!l:l.CtJr.~ar"lng_ · tt$Ni¥h "lg '79155 Pagn7Qf9 02-1$-00 . (AtJ&e.u or Property) · 2:?. AG~SEtt?eNr Of: PARTIF.S: ·n,T9 nanfr,oot r.oo!llfmr tha Etnllr(\ s~re(!mtmt of lht=~ parthm and cmnnof be ctmnged except by their written egreemant. Addanda Whlth :are a part ot lhftl r.ontracl sre (CheOf( all applicable boxeB): 0 Third Party financing Condition Addandum 0 Addendum for "Bt4ck-Up'' Oonlroot lit Sellor Financing Addendum 0 Environmental A.s$es&ment, Threatened 0\' Endangered Specles and WetlandS Addendum [J Addendum for Property Subject to 0 Addendum rar COe!Sbll Area f1roperly Mandatory Membership In an Owners' Asaoolallon IJ Buyer's Tamj>orary Residential Lease 0 Addendum fbr Property LQOated Seaward of the Gulf ln[raooastal WateJWay Q Addendum for Sale of Other Property· b':J 0 OIMr(lmt}: - - - - - - - - BUy&r . 23, TERMIAAi10N OP110N: For nom!Qal wn.~\. tf~ t~tJ~.oi'Wbk:h ls 1\emby admcwlledj!ad ~'I S'alktr, and Buyafs agreament b1pay Seller$ (()ptlonfee)vdWn2.d~~thaeffBotNed'a'!eof · this contract, Sellar grants Buyer the ~lid ~ to tem~!natB \blti wntmct by sMng no~ (If tsnn~1•to Sellar wtlhln days after the eff~qbl!; ~~ tbls c~ If no tJo.1lar amount Is stated ;s U~ OpDI:In F$9 or If Buyer falls topsy the OpHon F~ wittlbbe~J!~t'$alt ·fll'fo pa~FV>h wiD not.ba a pa« off.llfi; OIMbatt and Buyer shafl not have the unreslri~ted ri{J.hr lj:t ~haite tills oonlta!il tf Buyer QWea noUoo of term1nal!On ~ ihe lime praacribed, thB Option Fee wHI nnt be.~ JKrwe~. ~1 ear~l tl'~Gl\&y Witt .\tij raTull®d w~ TOO OpUon Faa 0 win 0 wlll not be oredW fu· lfre'· sa~ PI:~ ilt ~'1\lll. ~$ trr. ~~ fit.! ~ br ~ pa""graph ftnd afrl~t1 compllanoo wlltr'Wl&:fUM.·fbr.·pGif:um~n~nr,reqp~tKi. 24. CONSULT AN ATI'ORNI:Y: Real. est1ite: lkmttsae!l; «l!lloliDmV. g)~~ llt~n:~H iillllVflli0l. etlatliJl lOOJ$ ~.IO®Illffl!~:r CAREFULLY. II you do not underetand lha atreae.~t·tfife: oo~nam( ~~nawlK~Illaltlllrmq, IIIEf(O;IRE afll!J~Illr@J. Buyer's &lllle(s AUam!fJb;:. _ _ _ _ _ _ _ _ _ _ _ __ Attorney I s : - - - - - - - - - - - - Tereptrone: Talepl!on&: .FaeafmiT&:: Faco!mff~ II. E-i'Aalt E-.ma!~-- I KWw000027 Page 206 • • I(!JI)tW ------- 1104 Pc.ggy ~tm&~ Conlr~ ~aoomlno,...__ __,_._, Saqu;_n r "lfx 7615$ {Mifl\lU of PJ'OPorly) Thi-s ~ontraot Is subject to Chapter 27 uf tfl~i TeJ'W:IiBa~tluuUhlr TOOWI!1kt~i09'1, 1-B00·260..6732 or (u12) 4f.i9..S644 (htlp://VN/W,Ve(l,$lill~.lk·;US~1ffilire:~I!Ol.Z1~1i\. 'llllf~fiJnnt[GJ?)Mii'olli'IIIRllilJliflliOI.21J!-/r~ I ~--------------- -----~ . TREO NO. 24·6 · (TAR··I604) 2~18·06 Page oof 9 Prod~Wllh ZftlfoJmnl by RE: FO!IJ19Jl~~ ll.C 11!1J261-1!l~r.n ww Roo.d, Ol~lon ToW(IJ.[llp, Mlehlgan 4a0~5 1'11\W,ZIDfqrm com DR Barr KW~000028 Page 207 • . • 110.6.~\'JY ~ StgyUh ·~ ·1&15;;< ......... ·2·!S:J BROKER INf.~TlOO AND AA1ft:r~lrON oz:·ree . Listing Broker has agreed to pay Other Brolwr .. . of the _(Of(ll ~ pdoo when Listing Broker's foe Is raoalved. Ewaw Agant Is au~d ~an.t,l dfrooted .II) }~ay· Otf1er f:\~ker tr.am. Listing aroker'$ fee at closing. Other Brolc13r Ucem.t.aNu.· repreaapts t:l Buyar only aa auye~s agent 0 St!ll$r asllsllng Broketa aubl:lgsnt. · Associate Broke?s Actdretlg City State facsJmlle Emall Address EmaliAddr~ O'PlJON FEE ReCEIPT RBCPJp1 ar.$ - - - - - - (OptiMF~h} m~&form of 1s acknowlecfaad. S&ll!ir or Usttng Broker Onte TREC NO. 24-6 P'rlije~af9 KW..Q00029 Page 208