Pamela Mehl v. David Stern

ACCEPTED
03-14-00697-CV
4609055
THIRD COURT OF APPEALS
SEE AMENDED BRF AUSTIN, TEXAS
FLD ON 6/22/15 3/23/2015 4:45:18 PM
JEFFREY D. KYLE
CLERK

CASE NO. 03-14-00697-CV
IN THE THIRD COURT OF APPEALS
STATE OF TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
PAMELA MEHL, 3/23/2015 4:45:18 PM
JEFFREY D. KYLE
Clerk
Appellant,

v.

DAVID STERN,

Appellee.

APPELLANT'S BRIEF

On Appeal from Cause No. D-I-GN-14-002071
In the 250th Judicial District Court
Travis County, Texas

Respectfully submitted,

THE LEFLER LAW FIRM
1530 Sun City Blvd, Ste 119
Austin, Texas 78633
T (512) 869-2579
F (866) 583-7294

/s/ Sandra M Lefler
SANDRA M. LEFLER
State Bar No. 12161040
slefler@leflerlegal. corn

LEAD COUNSEL FOR APPELLANT

NO ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Appellant Counsel
Pamela Mehl Sandra M. Lefler
THE LEFLER LAW FIRM
1530 Sun City Blvd, Ste 119
Austin, Texas 78633
T (512) 869-2579
F (866) 583-7294
slefler@leflerlegal.corn

Appellee Counsel
David Stern Brent Allen Devere
Devere Law Firm
1411 West Avenue, Ste 200
Austin, Texas 78701
T (512) 457-8080
F (512) 457-8060
bdevere@l411west.corn

ii
 TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ii

TABLE OF CONTENTS iii

INDEX OF AUTHORITIES iv

STATEMENT OF THE CASE 1

STATEMENT REGARDING ORAL ARGUMENT 3

ISSUES PRESENTED 4

STATEMENT OF FACTS 6

SUMMARY OF THE ARGUMENT 15

ARGUMENT AND AUTHORITIES 17

I. APPELLANT SATISFIES THE REQUIREMENTS FOR
MAINTAINING A RESTRICTED APPEAL. THE SCOPE OF
REVIEW BY THE APPELLATE COURT INCLUDES REVIEW
OF THE ENTIRE CASE 17

A. Each of the Four Elements Necessary for a Restricted Appeal
Exists Here 17

II. ERROR 1: THE ORIGINAL PETITION WAS FILED IN THE
WRONG COUNTY IN VIOLATION OF THE MANDATORY
VENUE PROVISIONS OF SECTION 15.011 OF THE TEXAS
CIVIL PRACTICE AND REMEDIES CODE. IT WAS
REVERSIBLE ERROR FOR THE TRAVIS COUNTY COURT
TO ENTER ITS JUDGMENT 19

iii
III. ERROR 2: APPELLEE WAS ERRONEOUSLY AWARDED
RESCISSION OF A LAND CONVEYANCE AS A REMEDY
TO HIS BREACH OF CONTRACT CLAIM, WITHOUT
ANY EVIDENCE IN THE RECORD TO SUPPORT
RESCISSION 21

IV. ERROR 3: THE DISTRICT COURT'S ARBITRARY AND
UNSUPPORTED $20,000.00 MONEY DAMAGE AWARD TO
APPELLEE CONSTITUTES APPARENT ERROR 25

V. ERROR 4: APPELLEE WAS ERRONEOUSLY AWARDED
BOTH RESCISSION AND MONEY DAMAGES UNDER THE
SINGLE CLAIM FOR BREACH OF CONTRACT 27

VI. ERROR 5: THE DISTRICT COURT'S $2,500.00
ATTORNEY FEE AWARD WAS ARBITRARY AND
UNREASONABLE, AND AWARDED WITHOUT ANY
EVIDENCE OF THE PROPRIETY OF THOSE FEES OR
THE AMOUNT THEREOF IN THE RECORD, AND THUS
CONSTITUTES REVERSIBLE ERROR 28

VII. ERROR 6: IN ADDITION TO THE MANDATORY VENUE
REQUIREMENT UNDER SECTION 15.011, THE
RECEIVERSHIP CLAIM WAS ALSO REQUIRED TO BE
FILED IN THE COUNTY WHERE THE PROPERTY IS
LOCATED (WILLIAMSON COUNTY), YET IT WAS FILED
IN THE WRONG COUNTY (TRAVIS COUNTY) 30

VIII. ERROR 7: THE RECEIVERSHIP CLAIM FAILED TO
NAME ALL PARTIES IN INTEREST - NAMELY,
INDYMAC, THE FIRST MORTGAGE HOLDER -
AS REQUIRED BY TEX. R. CIV. P. 39 31

IX. ERROR 8: APPELLANT WAS NOT GIVEN THE
STATUTORILY REQUIRED THREE-DAY NOTICE
OF THE HEARING ON THE PETITION FOR
APPOINTMENT OF A RECEIVER 33

iv
CONCLUSION AND PRAYER 36

CERTIFICATE OF SERVICE 37

CERTIFICATE OF COMPLIANCE 38

APPENDIX
 INDEX OF AUTHORITIES

CASES Page

Alexander, v. Alexander, 99 S.W.2d 061 (Tex. Comm'n App.—
Austin 1936, no writ) 30

Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) 17,25,29

Arnold Motor Co. v. CIT. Corp., 149 S.W.2d 1056
(Tex. Comm'n App.--Galveston 1941, no writ) 31

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812
(Tex. 1997) 29

Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744 (Tex. Civ. App.—
Corpus Christi 1970, no writ) 31

Barker v. Roeke, 105 S.W.3d 75 (Tex. App.—Eastland 2003,
pet. denied) 21

Bosley v. Adoni Holdings, LLC, 373 S.W.3d 577 (Tex. App.—
Texarkana 2012, no pet.) 29

Board of Firemen's Relief and Retirement Fund Trustees of Harris Cnty
v. Stevens, 372 S.W.2d 572 (Tex. Civ. App. 1963, no writ) 26

Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) 29

Citizens Nat. Bank Texas v. NXS Const., Inc., 387 S.W.3d 74 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) 26,27

Cooper v. Cochran, 272 S.W.3d 756 (Tex. App.—Dallas 2008, no pet.) 21

Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1,
307 S.W.2d 233 (Tex. 1957) 22,28

Elliott v. Weatherman, 396 S.W.3d 224 (Tex. App.—Austin 2013,
no pet. h.) 34

vi
Gray v. Phi Res., Ltd., 710 S.W.2d 566 (Tex. 1986) 35

Hani v. Jimenez, 264 S.W.3d 881 (Tex. App.—Dallas 2008, pet. denied) 26

H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496 (Tex. App.—
Fort Worth 2012, no pet. h.) 22

Helton v. Kimbell, 621 S.W.2d 675 (Tex. App.—Fort Worth 1981,
no writ 34,35

Horizon/EMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) 26

In re Estate of Hardesty, 499 S.W.3d 895 (Tex. App.—
Texarkana 2014, no pet.) 28

Isaacs v. Bishop, 249 S.W.3d 100 (Tex. App.—Texarkana 2008,
pet. denied) 21,23

Johnson v. Barnwell Prod. Co., 391 S.W.2d 776 (Tex. Civ. App.
—Texarkana 1965, writ ref(' n.r.e.) 35

Krunmow v. Krumnow, 174 S.W.3d 820 (Tex. App.—Waco 2005,
pet. denied) 34

L.P.D. v. R.C., 959 S.W.2d 728 (Tex. App. — Austin 1998, pet. denied) 18

Marion v. Marion, 205 S.W.2d 426 (Tex. Civ. App.—
San Antonio 1947, no writ 34,35

Mayberry v. Tex. Dep't of Agile., 948 S.W.2d 312 (Tex. App.—
Austin 1997, pet. denied) 26

McCarthy Bros. Co. v. Cont'I Lloyds Ins. Co., 7 S.W.3d 725
(Tex. App.—Austin 1999, no pet.) 28

Merrell Dow Pharms., Inc, Y. Havner, 956 S.W.2d 706 (Tex. 1996) 25,30

vii
Morton v. Hung Nguyen, 369 S.W.3d 659 (Tex. App.—
Houston 14th Dist.] 2012, no pet. h.) 22

N. Side Bank v. Wachendorfer, 585 S.W.2d 789 (Tex. Civ. App.--
Houston [1st Dist.] 1979, no writ) 34

Nationwide Life Ins. Co. v. Nations, 654 S.W.2d 860 (Tex. App.—
Houston [14th Dist.] 1983, no writ) 34

Nelson v. Najm, 127 S.W.3d 170 (Tex. App.—Houston
Fist Dist.] 2003 21,22,28

Norman Communications v. Texas Eastman Co., 955 S.W.2d 269,
41 Tex. Sup. Ct. J. 83 (Tex. 1994) (per curiam) 17,18,19

Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App. —
Austin 2004) 17,18,25,30

Pratt v. Amrex, Inc., 354 S.W.3d 502 (Tex. App.—San Antonio 2011,
pet. denied) 30

Quaestor Inns., Inc. v. State of Chiapas, 997 S.W.2d 226,
42 Tex. Sup. Ct. J. 1016 (Tex. 1999) 17

Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) 26

Scott v. Commercial Services of Perry, Inc., 121 S.W.3d 26
(Tex. App.—Tyler 2003, pet. denied) 21

Scott v. Sebree, 986 S.W.2d 364, (Tex. App.—Austin 1999, pet. denied) ..22,27

Starr v. Ferguson, 162 S.W.2d 130 (Tex. Comm'n App. 1942, no writ) 26

Texaco, Inc. v. Cent. Power• & Light Co., 925 S.W.2d 586 (Tex. 1996) 18

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006.) 28

Whitson Co. v. Bluff Creek Oil Co., 256 S.W.2d 1012
(Tex. Civ. App.—Fort Worth 1953, writ dism'd) 31
Young v. Kirsch, 814 S.W2d 77 (Tex. App.—San Antonio 1991, no pet.) 26

STATUTES and OTHER AUTHORITIES

TEX. CIV. PRAC. & REM. CODE § 15.001(b) 19

TEX. CIV. PRAC. & REM. CODE § 15.002 19

TEX. CIV. PRAC. & REM. CODE § 15.011 2,4,8,12,15,19,20,30

TEX. CIV. PRAC. & REM. CODE § 15.063 20

TEX. DISCIPLINARY RULES OF PROWL CONDUCT § 1.04 29

TEX. R. APP. P. 26.1(c) 17

TEX. R. APP. P. 30 17

TEX. R. Civ. P 39 31, 32

TEX. R. Civ. P. 39(a) 13, 31,32

TEx. R. Ctv. P. 39(a)(ii) 32

TEX. R. Civ. P 47 26

TEX. R. Civ. P. 47(c) 27

TEx. R. Civ. P. 695 11, 34

ix
 STATEMENT OF THE CASE

On June 26, 2014, Appellee David Stern filed this action in the 250th Judicial

District of Travis County, Texas for (a) Trespass to Try Title and rescission of a

real estate conveyance in Williamson County, Texas; (b) damages for breach of the

underlying contract; (c) attorney fees; and (d) the appointment of a receiver to sell

the subject real estate. (Clerk's Record (C.R.) 3 — Original Petition.) Underlying

the lawsuit was a written settlement agreement between the parties to resolve

numerous claims asserted by them in numerous legal proceedings.

Appellant Pamela Mehl was served with process at the office of her then-

attorney, J. Randall Grimes, in Georgetown, Williamson County, Texas. (C.R. 14

— Affidavit of Service.) Appellant gave her attorney the Petition, but he never filed

a timely answer or other response to the Petition.

On July 29, 2014, the district court signed a no answer default judgment

against Appellant. (C.R. 15 — Judgment for Title to Real Estate and Damages.)

Appellant Mehl did not participate in the hearing whatsoever. No reporter's record

was made of those proceedings. No notice was given of the district court's hearing

addressing the appointment of the receiver•. The Judgment awarded Plaintiff

rescission of only the property conveyance portion of the settlement agreement,

additional monetary damages, attorney fees, and appointed a receiver to take

possession of and sell the real property.
 Appellant did not know about the Judgment in time to file post-judgment

motions or a timely ordinary appeal. After being contacted by the Receiver,

Appellant learned of the Judgment and filed a Notice of Appeal timely

commencing this restricted appeal. Appellant also filed a Petition for Writ of

Mandamus because the district court violated the mandatory venue requirements

under Section 15.011 of the Texas Civil Practice and Remedies Code, and the

receiver's actions are threatening the sale of the property pending this appeal. The

Petition for Writ was denied. This appeal continues.

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 STATEMENT REGARDING ORAL ARGUMENT

Appellant waives the right to oral argument. This appeal is to be decided on

the face of the district court record, and upon the clear, unrefuted law of this state

which establishes that reversible error occurred.

3
 ISSUES PRESENTED

1. Whether Appellant satisfies the requirements for maintaining a

restricted appeal, and what constitutes the scope of review by this Court on appeal.

2. Whether Appellee's filing of the Original Petition in the wrong county

in violation of the mandatory venue provisions of Section 15.011 of the Texas

Civil Practice and Remedies Code, and the district court's entry of judgment in the

wrong county constitutes reversible error.

3. Whether rescission of only a portion of a transaction — here, a land

conveyance, without evidence in the record to support rescission — constitutes

reversible error.

4. Whether it was error for the district court to award $20,000.00 in

damages without any evidence in the record to support the damages award.

5. Whether it is reversible error for the district court to award both

rescission and monetary damages under a single claim for breach of contract.

6. Whether it is reversible error for the district court to award $2,500.00

in attorney fees without any evidence in the record of the propriety of such fees or

the amount thereof.

7. Whether it is reversible error for the district court to appoint a receiver

in a county where the real property is not located.

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 8. Whether it is reversible error for the district court to appoint a receiver

in a case where a party in interest (namely, the first mortgage holder) is not named

as a party in the suit.

9. Whether it is reversible error for the Appellee to fail to give the

Appellant three-day notice prior to the hearing on the issue of appointment of a

receiver.

5
 STATEMENT OF FACTS

1. On June 26, 2014, Appellee Stern filed an Original Petition against

Mehl in the Travis County District Court, on claims seeking rescission of a

conveyance of real property, in Williamson County, Texas, trespass to try title,

breach of contract, monetary damages, appointment of a receiver over the

Williamson County property, and attorney fees, (C.R. 3-12 - Original Petition.)

Underlying this suit was a settlement agreement previously entered into between

the parties resolving numerous legal claims between them pending in more than

one proceeding. (C.R. 5 - Original Petition, p. 3, ¶ 7.)

2. In Paragraph 2 of the Petition, Appellee Stern states: "Defendant

[Appellant herein] . . . can be served with process at 700 Grove Lane, Georgetown,

Texas 78626." (C.R. 3 - Original Petition, p. 1, ¶ 2.) This Williamson County

address is the same address as the Property that is the subject of the Travis County

suit. (C.R. 4-5 - Original Petition, pp. 2-3, ¶ 6.) The entire city of Georgetown,

Texas is in Williamson County, Texas.

3. In support of his assertion that the Travis County court had

jurisdiction over this real property case, Appellee Stern's Petition claims:

6
 a. that the litigation settlement agreement "that is in part the basis of

this suit" was "ratified in Travis County, Texas, by a United States

Bankruptcy Judge. (C.R.4 - Original Petition, p. 2, ¶ 4(a));

b. that the underlying mediation that resulted in the parties'

settlement agreement occurred in Travis County. (C.R. 4 -

Original Petition, p. 2, ¶ 4(b)); and

c. that a deed of trust given by Appellant Mehl to Stern as collateral

for Mehl's payment under the settlement agreement was negotiated

and approved by the U.S. Bankruptcy Court in Austin, Travis

County, Texas. (C.R. 4 - Original Petition, p. 2, ¶ 4(c).)

However, the U.S. Bankruptcy Court for the Western District of

Texas has jurisdiction over the entirety of Williamson County,

Texas as well.

Despite those allegations, Appellee Stern also acknowledged in his Original

Petition that:

a. the property that is the subject of the action is located in

Williamson County, Texas (C.R. 4-5 - Original Petition, pp. 2-3,

¶ 6);

7
 b. the deed and the deed of trust that are the subject of the action were

each recorded in the real property records of Williamson County,

Texas (C.R. 5 - Original Petition, p. 3, ¶ 9); and

c. Appellant Stem alleged a cause of action for trespass to try title

and rescission based on an implied vendor's lien — each of which is

a real property claim. (C.R. 6-7 - Original Petition, pp. 4-5, ril
13-16.)

4. TEX. CIV. PRAC. & REM. CODE § 15.011 has a mandatory venue section for

real property. With associated real property, it is mandatory that:

Actions for recovery of real property or an estate or interest in
real property, for partition of real property, to remove
encumbrances from the title to real property, for recovery of
damages to real property, or to quiet title to real property shall
be brought in the county in which all or a part of the property is
located.

(Emphasis added.) TEx. CIV. PRAC. & REM. CODE § 15.011.

4. On July 3, 2014, Appellant Mehl was properly served with process

and the Original Petition at her then-attorney's office, J. Randall Grimes. (C.R. 14

- Return of Service.)

5. Appellant Mehl's attorney failed to timely answer or otherwise file

any response to the Travis County Original Petition. No documents of any kind

whatsoever were filed on her behalf.

8
 6. On July 29, 2014, the Travis County court conducted a hearing on

Appellant Mehl's default and on Appellee's request for appointment of a receiver.

(C.R. 15 - Judgment for Title to Real Estate and Damages ("Judgment") (see

Appendix A).

7. No notice of the hearing was given to Appellant Mehl.

8. Appellant Mehl did not attend the hearing or participate in the

hearing.

9. At the July 29, 2014 hearing, the Travis County court entered a no-

answer default judgment in favor of Appellee Stern and against Appellant Mehl.

(C.R. 15 - Judgment; see Appendix A.)

10. In the Judgment, the Court ruled in favor of Appellee Stern regarding

his claims, as follows:

a. The Court recognized Stern had "a vendor's lien, equitable lien

and a deed of trust to secure assumption for and in favor of David

Stem on . . . [tjhe "Property" . . . otherwise known as 700 Grove

Lane, Georgetown, Texas, 78626, Williamson County . . . by

virtue of David Stern's prior 50% conveyance of the Property to

Pamela Mehl." (C.R. 16 - Judgment, p. 2, ¶ A);

9
b. The Court awarded Stern "judgment for title and possession of

50% of the Property based on a rescission of the prior conveyance.

. . ." (C.R. 16 - Judgment, p. 2, ¶ B);

c. The Court awarded Stern "actual damages against Pamela Mehl in

the amount of $20,000.00." (C.R. 16 - Judgment, p. 2, ¶ C);

d. The Court awarded Stern "attorneys' fees in the amount of

$2,500.00". (C.R. 16 - Judgment, p. 2, ¶ D);

e. The Court awarded Stern post-judgment interest at the rate of 5%

from the date of judgment until paid. (C.R. 16 - Judgment, p. 2,

E);

f. Costs were taxed against Appellant Mehl. (C.R. 16 - Judgment, p.

2, ¶ F); and

g. The Court found that Stern "has a right to the Property", and that

"the Property is in danger of being materially injured," and

appointed a receiver over the Property. (C.R. 16-17 - Judgment,

pp. 2-3, ¶ G.) The Receiver was ordered to post only a $200.00

bond, and was given the power to take charge and keep possession

of the Property, receive rents, and sell the Property, with the sale

proceeds being applied to extinguish any indebtedness on the
 property with the balance "being paid 50/50 to Plaintiff [Stern] and

Defendant [Mehl]. (C.R. 16-17 - Judgment, p. 2-3, ¶ G.)

11. No three-day notice was given to Appellant Mehl prior to the hearing

on the appointment of the Receiver as required by Section 695 of the Texas Rules

of Civil Procedure, even though Appellee Stern even requested at paragraph 4 of

the prayer in his Original Petition that notice of the receivership hearing issue.

(C.R. 9 - Original Petition, p. 7, prayer ¶ 4.) ("The court fix the time and date for

hearing on the application for appointment of receiver and the Court enter an order

specifying the notice to be given Defendant of this hearing, and the manner in

which the notice is to be served.")

12. No court reporter's record was made at the July 29, 2014 hearing on

Appellee's motion for default judgment.

13. The Travis County Clerk mailed written notice of the entry of the

judgment to Appellant on August 5, 2014 (C.R. 61 — Docket Sheet), but she did not

receive the Notice. The Notice was returned to the Court marked, "Unclaimed".

(C.R. 61 - Envelope from Travis County Clerk to Appellant, postmarked "Returned

to Sender — Unclaimed Unable to Forward, filed 9/23/2014 in the Travis County

District Court.)1

Thisitem appears in the District Court Clerk's file, but the District Clerk failed to include it in
the Clerk's Record herein. A copy of the Notice indicating it was returned "unclaimed" is
included in the Appendix herein.

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 14. Appellant Mehl, unaware of the entry of the Judgment until sometime

in October 2014, when she was contacted by the Receiver, was out of time to file a

request for findings of fact and conclusions of law and/or a motion for a new trial.

(C.R. 34 - Notice of Restricted Appeal, p. 3, ¶ 10.)

15. Appellant Mehl filed this Restricted Appeal on November 4, 2014, 98

days following the date of the entry of the Judgment on July 29, 2014. (C.R. 34 -

Notice of Restricted Appeal.)

16. Error is apparent on the face of the record of the Travis County

Lawsuit in the following ways:

a. The Original Petition was not filed in the correct county. The real

property is located in Williamson County, and mandatory venue is

therefore required in Williamson County under Section 15.011 of

the Texas Civil Practice and Remedies Code. Appellee instead

erroneously filed suit in Travis County. (C.R. 3 - Original

Petition);

b. Appellee Stern did not specify an amount of money damages in his

Original Petition (C.R. 9 - Original Petition, p. 7, ¶ 2), yet without

a court reporter's transcript and any proof of any evidence

Appellant just discovered the absence of this document as well as other documents from the
Clerk's Record that the district clerk also failed to include in the Clerk's Record on file herein.
Appellant is filing a Motion to Supplement the Record at this time.

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 presented to the Court, the no-answer default Judgment awarded

him $20,000.00 in damages. (C.R. 16 - Judgment, p. 2, ¶ C);

c. Appellee Stern did not specify an amount of attorney fees in his

Original Petition (C.R. 9 - Original Petition, p. 7, ¶ 5), yet without

a court reporter's transcript and any proof of any evidence

presented to the Court, the no-answer default Judgment awarded

him $2,500.00 in attorney's fees. (C.R. 16 - Judgment, p. 2, ¶ D);

d. Appellee Stern sought both rescission and damages for breach of

contract (C.R. 6-7 - Original Petition, pp. 4-5, ¶13-19), and was

improperly awarded both rescission and money damages. (C.R.

16-17 - Judgment, p. 2 in B & C);

e. Appellee Stern's claim for appointment of a receiver was granted

by the Travis County court, even though that claim contained fatal

errors insufficient to establish Appellee Stern's right to a receiver:

i. The receivership claim was filed in the wrong county

(Travis) rather than where the land is located (Williamson

County) (C.R. 3 - Original Petition);

ii. The receivership claim failed to name all parties in interest

as required by Rule 39(a) of the Texas Rules of Civil

Procedure; specifically, the Original Petition fails to name as
 a party to the action the first mortgage holder on the

property, IndyMac. (C.R. 3 - Original Petition); and

iii. The receivership hearing occurred without the statutorily

mandated three-day notice to Appellant in violation of her

due process rights herein.
 SUMMARY OF THE ARGUMENT

1. The Appellant satisfies the requirements for pursing this restricted

appeal.

2. The district court entered its no-answer default Judgment, wholly

disregarding that this action was not filed in the proper venue in keeping with the

mandatory venue requirements of Section 15.011 of the Texas Civil Practice &

Remedies Code. As a result, the Judgment must be reversed.

3. Several points of error appear on the face of the record requiring

reversal of the judgment:

A. The district court rescinded only a portion of a transaction —

here, a land conveyance — without addressing all of the other requirements

necessary to support rescission, including no evidence in the record to

support rescission.

B. The district court awarded $20,000.00 in damages without any

evidence in the record to support the damages award; therefore, the damage

award must be reversed.

C. The district court erroneously awarded both rescission and

monetary damages under a single claim for breach of contract.

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 D. The district court erroneously awarded $2,500.00 in attorney

fees without any evidence of the propriety of such fees or the amount thereof

in the record.

E. The district court erroneously appointed a receiver over real

property in a county where the real property is not located.

F. The district court committed reversible error when it failed to

give Appellant not less than a three-day notice of the hearing on the issue of

appointment of a receiver.

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 ARGUMENTS AND AUTHORITIES

I. APPELLANT SATISFIES THE REQUIREMENTS FOR
MAINTAINING A RESTRICTED APPEAL. THE SCOPE OF
REVIEW BY THE APPELLATE COURT INCLUDES REVIEW
OF THE ENTIRE CASE.

A. Each of the Four Elements Necessary for a Restricted Appeal Exists
Here.

Pursuant to Rule 30 of the Texas Rules of Appellate Procedure, a direct

attack on a judgment by restricted appeal (1) must be brought within six months

after a trial court signs the judgment; and (2) must be brought by a party to the suit;

(3) who did not participate in the hearing that resulted in the judgment complained

of, timely file a postjudgment motion, request for findings of fact and conclusions

of law, or a notice of appeal within the normal 30-day period; and (4) the error

complained of must be apparent from the face of the record, TEX. R. App. P. 30;

Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (citing TEX. R.

App. P. 26.1(c), 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227,

42 Tex. Sup. Ct. J. 1016 (Tex. 1999)); Petco Animal Supplies, Inc. v. Schuster, 144

S.W.3d 554, 558-559 (Tex. App. — Austin 2004) (citing TEX. R. App. P. 30;

Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 207, 41 Tex.

Sup. Ct. J. 83 (Tex. 1994) (per curiam).

As established in the Statement of Facts, Appellant filed this appeal 98 days

following entry of the Judgment — well within the six-month filing requirement.

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Mehl was the named defendant in the suit below, and she was not given any notice

of and did not participate in the no-answer default judgment hearing. The essential

inquiry turns on whether Appellant took part in the "decision-making event" that

resulted in the entry of the Judgment. Texaco, Inc. v. Cent. Power & Light Co.,

925 S.W.2d 586, 589 (Tex. 1996). There is no evidence in the record that

Appellant Mehl participated in the July 29, 2014 hearing resulting in the entry of

the Judgment. Further, without any knowledge of the hearing and the court's

action taken that day (including entry of the Judgment), Mehl missed the

opportunity to timely file a post-judgment motion, request findings of fact and

conclusions of law, or file a notice of appeal within 30 days. This is the very type

of case for which restricted appeals are intended, and Appellate satisfies the

procedural requirements.

B. The Scope of Review by this Court Includes Review of the Entire Case.

In a restricted appeal, we are limited to considering only the face of
the record, but our• scope of review is otherwise the same as that in an
ordinary appeal; that is, we review the entire case.

Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 558-559 (Tex. App. —

Austin 2004)(citing Norman, 955 S.W.2d at 270; L.P.D. v. R. C., 959 S.W.2d 728,

730 (Tex. App. — Austin 1998,pet. denied). The face of the record for purposes of

restricted appeal review, consists of all the papers on file in the appeal, including

the reporter's record. Norman Communications, 955 S.W.2d at 270. Thus, "it

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necessarily follows that review of the entire case includes review of legal and

factual insufficiency claims." Id.

In this case, numerous errors appear on the face of the record below

requiring reversal of the no answer default judgment.

II. ERROR 1: THE ORIGINAL PETITION WAS FILED IN THE
WRONG COUNTY IN VIOLATION OF THE MANDATORY
VENUE PROVISIONS OF SECTION 15.011 OF THE TEXAS
CIVIL PRACTICE AND REMEDIES CODE. IT WAS
REVERSIBLE ERROR FOR THE TRAVIS COUNTY COURT TO
ENTER ITS JUDGMENT.

In filing his Petition in Travis County, Appellee relied solely upon the

general venue statute set forth in Section 15.002 of the Texas Civil Practice and

Remedies Code — specifically subsection (1) thereof, which provides that all

lawsuits shall be brought "(1) in the county in which all or a substantial part of the

events or omissions giving rise to the claim occurred."2 This wholly disregards the

definition of "proper venue" set forth at Section 15.001(b):

Sec. 15.001. DEFINITIONS. In this chapter:

***

(b) "Proper venue" means:

2 Appellee enumerated irrelevant references to Travis County in its Petition in an apparent
attempt to convince the court that Travis was "the county in which all or a substantial part of the
events . . . giving rise to the claim occurred", under TEX. C1V, PRAC. & REM. CODE Section
15.002. (C.R. 4 - Original Petition, p. 2, IN 4-5; Appellants' Statement of Facts, supra, p. ,
.)

-19-
 (1) the venue required by the mandatory provisions of
Subchapter B or another statute prescribing
mandatory venue; or

(2) if Subdivision (1) does not apply, the venue provided
by this subchapter or Subchapter C.

Here, Subchapter B provides the Mandatory Venue provision applicable to this

case. At Section 15.011 thereof, we see:

Section 15.011. LAND. Actions for recovery of real property or an
estate or interest in real property for partition of real property, to
remove encumbrances from the title to real property, for recovery of
damages to real property, or to quiet title to real property shall be
brought in the county in which all or.a part of the property is located.

Thus, the "proper venue" for this case is where the subject Property is located:

Williamson County. This is a mandatory requirement for venue, not one Appellee

or the district court were free to disregard in an exercise of their own discretion.

Since Appellant's counsel failed to file any responsive pleading to the Original

Petition and Appellant was herself unaware of the action taking place in the district

court, including the entry of the default judgment, she never had the opportunity to

seek a transfer of the action to Williamson County — the county of proper venue —

under TEX. CIV. PRAC. & REM. CODE § 15.063.

If venue is improper due to a mandatory venue provisions, this is always

reversible error.

- 20 -
 Appellant also sought to correct the district court's error through her Petition

for Writ of Mandamus also filed with this Court; however, the Petition was denied.

Therefore, Appellant looks upon this Court to remedy the district court's disregard

of the mandatory venue statute and reverse the underlying Judgment.

Based upon the foregoing, the district court's Judgment should be reversed

since the court lacked proper venue for addressing Plaintiff's claims.

III. ERROR 2: APPELLEE WAS ERRONEOUSLY AWARDED
RESCISSION OF A LAND CONVEYANCE AS A REMEDY TO
HIS BREACH OF CONTRACT CLAIM, WITHOUT ANY
EVIDENCE IN THE RECORD TO SUPPORT RESCISSION.

The Judgment awarded Appellee both rescission of a conveyance of an

interest in land, and also money damages, as recovery for his claim of breach of

contract. (C.R. 16 - Judgment, p.2, ¶¶ A-D.) Rescission is an equitable remedy that

operates to set aside a contract that is legally valid, but is marred by fraud or

mistake, or, if for some other reason, the court must set it aside to avoid unjust

enrichment. Isaacs v. Bishop, 249 S.W.3d 100, 109 (Tex. App.—Texarkana 2008,

pet. denied); Nelson v. Najin, 127 S.W.3d 170, 176-177 (Tex. App.—Houston [1st

Dist.] 2003, pet. denied); Scott v. Commercial Services of Periy, Inc., 121 S.W.3d

26, 30 (Tex. App. Tyler 2003, pet. denied); Barker v. Roelke, 105 S.W.3d 75, 84

(Tex. App.—Eastland 2003, pet. denied); see Cooper v. Cochran, 272 S.W.3d 756,

767 (Tex. App.—Dallas 2008, no pet.) (rescission is type of relief that must be

prayed for or court cannot grant it). As a general rule, the court will order the parties

- 21 -
to return any consideration paid, restoring them to their respective positions as if the

contract had never existed. Morton v. Hung Nguyen, 369 S.W.3d 659, 670 (Tex.

App.—Houston [14th Dist.] 2012, no pet. h.); H.E.B., L.L.C. v. Ardinger, 369

S.W.3d 496, 509 (Tex. App. Fort Worth 2012, no pet. h.) ("Upon rescission, the

rights and liabilities of the parties are extinguished ... .").

What makes rescission an inappropriate remedy here is that it provided

Appellee with, among other things, double recovery. Rescission is an alternative to

the recovery of damages for breach. See Scott v. Sebree, 986 S.W.2d 364, 368-370

(Tex. App.—Austin 1999, pet. denied). A party establishing grounds for rescission,

such as by proof of fraudulent inducement to make the contract, must choose either

to stand on the contract and recover damages or to rescind, Dallas Farm Mach. Co.

v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 238-239 (Tex. 1957); Nelson v. Najm, 127

S.W.3d 170, 176-177 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). As a

general rule, equity does not allow rescission of a contract for a mere breach of the

contract, particularly when damages are an adequate remedy.

Moreover, in this case there is no evidence in the record proving Appellee's

entitlement to rescission. As with the money damage award and attorney fees, next

discussed, the record is void of any proof, as Appellee failed to request a court

reporter's record establishing any of this proof; and, his Petition is unsworn. To be

entitled to rescission, a party must show that (1) the party and the defrauding party

- 22 -
are in the status quo (i.e., there are no retained benefits received under the

instrument and not restored to the other party), or (2) there are equitable

considerations that obviate the need for the status quo relationship. Isaacs v. Bishop,

249 S.W.3d 100, 110 (Tex. App.—Texarkana 2008, pet. denied). The court should

consider an inability to return the parties to their former position in determining

whether rescission would be equitable. Id.

Nothing appears in the record evidencing that the parties were being returned

to status quo through rescission of the conveyance only. In fact, on the face of the

record, just the opposite is true: The conveyance reversed only one small portion of

a much greater exchange of property rights and interests between the parties; thus,

the rescission was incomplete and did little to restore status quo. Instead, it placed

Appellee in a more favorable position than he was prior to the settlement, which is a

completely inequitable result. Specifically, the transaction Appellee sought to

rescind was a settlement agreement containing resolution of multiple issues and

elements of consideration entered into between the parties for the purpose of

resolving numerous legal disputes between them. Appellee's Original Petition

explains the multi-faceted nature of this agreement:

7. The parties subsequently engaged in lengthy litigation in
several courts, including both state district court and bankruptcy court,
over a number of issues. Ultimately, the Plaintiff and Defendant
reached a settlement of the litigation that, in pail, resulted in a division
of the Property.

- 23 -
 8. As part of the settlement agreement, Plaintiff agreed to
transfer his 50% interest in the Property to Defendant by a Special
Warranty Deed ("Deed" herein) and Defendant in turn executed a Deed
of Trust to Secure Assumption to Plaintiff . . . whereby Defendant
agreed, among other things, to timely tender mortgage payments to the
preexisting lienholder ("Bank" herein) and ultimately refinance the
Bank mortgage by 2016.

(C.R. 5 - Original Petition, p. 3, ¶¶ 7, 8) (emphasis added).) Looking next to the

Judgment, the district court makes no mention of any of the aspects of the settlement

agreement whatsoever, does not address status quo, and does not find in the

alternative that equitable considerations obviate the need for status quo. Instead, the

district court simply states without explanation:

B. The Court hereby awards David Stern judgment for title and
possession of 50% of the Property based on a rescission of the prior
conveyance under document # 2013063557 of the Williamson County
Real Property Records.

(C.R. 16 - Judgment, p. 2, ¶ C.) The rescission, if proper, would have rescinded the

entire settlement agreement and placed the parties back in their original positions.

Instead, the district court only transferred one real property interest back to

Appellee, did not absolve Appellant of her underlying obligation regarding payment

of the first mortgage indebtedness, and makes no mention of anything else

pertaining to the settlement. This is incomplete, and is error on the face of the

record justifying reversal of the rescission of the conveyance.

- 24 -
 IV. ERROR 3: THE DISTRICT COURT'S ARBITRARY AND
UNSUPPORTED $20,000.00 MONEY DAMAGE AWARD TO
APPELLEE CONSTITUTES APPARENT ERROR.

In the present suit, there exists no evidence in the record to support the

District Court's $20,000.00 award of damages against Appellant, indicating the

award is an arbitrarily assessed amount constituting apparent error. As was

previously stated, in order for an appellant to prevail on its restricted appeal, "error

[must be] apparent on the face of the record." Alexander v. Lynda's Boutique, 134

S.W.3d 845, 848 (Tex. 2004). Moreover, a "no evidence" point will be sustained

when there is a complete absence of evidence of a vital fact. Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996); see also Petco Animal Supplies,

Inc. v. Schuster•, 144 S.W.3d 554, 559 (Tex. App. — Austin 2004, no pet.).

Here, there exists no reporter's record, statement of facts, or evidence of any

kind whatsoever to support the District Court's $20,000.00 actual damages award

to Appellee. Appellee's Original Petition was silent as to any damage amount

sought. Thus, there is nothing in the evidence to support the district court's

Judgment itself, which awards Appellee "actual damages against [Appellant] in the

amount of $20,000 (Twenty Thousand and 00/100 Dollars)."

Further, as a general rule of pleading, the Texas Rules of Civil Procedure

require that the petition must give fair and adequate notice of the facts upon which

the petitioner bases his claim, in order to give the opposing party sufficient

- 25 -
information to enable him or her to prepare a defense. See Tex. R. Civ. P. 47;

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (citing

Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)). While the petition is not

required to plead a specific amount or measure of damages, see Young v. Kirsch,

814 S.W.2d 77, 82-83 (Tex. App.—San Antonio 1991, no pet.), it must

nevertheless sufficiently allege the relief sought. See Board of Firemen's Relief

and Retirement Fund Trustees of Harris Cnty v. Stevens, 372 S.W.2d 572, 574

(Tex. Civ. App. 1963, no pet.) "It is well settled that the court may not grant relief

not supported by [the] pleading or prayer." Stevens, 372 S.W.2d at 574 (citing

Starr v. Ferguson, 166 S.W.2d 130 (Tex. Comm. App. 1942, no pet.)). Therefore,

the finder of fact in a lawsuit has broad discretion to award damages within the

range of evidence presented, "so long as a rational basis exists for its calculation."

Hani v. Jimenez, 264 S.W.3d 881, 888 (Tex. App.—Dallas 2008, pet. denied)

(citing Mayberry v. Tex. Dep 't of Agile., 948 S.W.2d 312, 317 (Tex. App.—Austin

1997, pet. denied) (emphasis added). "[The Court] may not arbitrarily assess an

amount that is not authorized or supported by the ❑ evidence; [it] may not 'pull

figures out of a hat.'" Citizens Nat. Bank of Texas v. NXS Const., Inc., 387 S.W.3d

74, 83 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (emphasis added) (citation

omitted).

-26-
 In paragraph 5 of Appellee's Original Petition, he simply makes a claim that

the monetary, damages are within the jurisdictional limits of the Court (between

$200,000.00 and $1,000,000.00), without further specifying any specific actual

damages to which he is entitled, (C.R. 4 -- Original Petition, p. 2, ¶ 5.) Indeed,

nowhere in Appellee's Original Petition does he include a statement that he seeks

monetary relief at all, in contradiction to the Texas Rules of Civil Procedure. TEx.

R. Civ. P. § 47(c). This omission, coupled with no factual evidence or support for

the Court's award, further bolsters the conclusion that the amount was arbitrarily

awarded and constitutes apparent error. Cf, Citizens Nat. Bank of Texas v. NXS

Coast., Inc., 387 S.W.3d 74, 83 (Tex. App Houston [14th Dist.] 2012, no pet.).

Therefore, the district court's award of $20,000.00 actual damages must be

reversed.

V. ERROR 4: APPELLEE WAS ERRONEOUSLY AWARDED
BOTH RESCISSION AND MONEY DAMAGES UNDER THE
SINGLE CLAIM FOR BREACH OF CONTRACT

As established above, both rescission the award of damages were erroneous

and constituted reversible error. Nevertheless, if this Court were to uphold the

awards, it would constitute error. Rescission is an alternative to the recovery of

damages for breach. See Scott v. Sebree, 986 S.W.2d 364, 368-370 (Tex. App.

Austin 1999, pet. denied). A party establishing grounds for rescission, such as by

proof of fraudulent inducement to make the contract, must choose either to stand on

27 -
the contract and recover damages or to rescind. Dallas Farm Mach. Co. v. Reaves,

168 Tex. 1, 307 S.W.2d 233, 238-239 (Tex. 1957); Nelson v. Najm, 127 S.W.3d

170, 176-177 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, the district

court awarded both, and that double recovery should not be allowed to stand.

Therefore, the award was reversible error and should be corrected by this Court.

VI. ERROR 5: THE DISTRICT COURT'S $2,500.00 ATTORNEY FEE
AWARD WAS ARBITRARY AND UNREASONABLE, AND
AWARDED WITHOUT ANY EVIDENCE OF THE PROPRIETY
OF THOSE FEES OR THE AMOUNT THEREOF IN THE
RECORD, AND THUS CONSTITUTES REVERSIBLE ERROR.

The district court's $2,500.00 attorney's fees award to Appellee was

unsupported by any evidence whatsoever in the record, making it arbitrary and

unreasonable, which constitutes apparent error. Generally, attorney's fees in Texas

are not recoverable from an opposing party unless authorized by statute or contract.

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). Where

attorney's fees are authorized, "[t]rial courts have wide discretion in determining

what is equitable and just in awarding [them], and appellate courts will not

overturn such a decision unless it is clear from the facts the trial court abused its

discretion." In re Estate of Hardesty, 499 S.W.3d 895, 918 (Tex. App.—Texarkana

2014, no pet.) (citing McCarthy Bros. Co. v. Cont'l Lloyds Ins. Co., 7 S.W.3d 725,

731 (Tex. App.—Austin 1999, no pet.).

- 28 -
 Moreover, it is a widely accepted principle that, in awarding attorney's fees,

the amount must be "reasonable and necessary." Bocquet v. Herring, 972 S.W.2d

19, 21 (Tex. 1998). Factors to be considered in determining what is reasonable and

necessary include: (1) the time and labor required, the novelty and difficulty of the

questions involved, and the skill required to perform the legal service properly;

(2) the likelihood that the acceptance of employment precluded other employment

by the lawyer; (3) the fee customarily charged in the locality for similar legal

services; (4) the amount involved and the results obtained; (5) the time limitations

imposed by the client or by the circumstances; (6) the nature and length of the

professional relationship with the client; (7) the experience, reputation, and ability

of the lawyer performing the services; and (8) whether the fee is fixed or

contingent on results obtained, or uncertainty of collection before the legal services

have been rendered. See Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997); TEX. DISCIPLINARY RULES OF PROF'L CONDUCT

§ 1.04. Additionally, when a party is awarded attorney fees without any legally

correct basis for the award, error has occurred, justifying reversal. Basley v. Adoni

Holdings, LLC, 373 S.W.3d 577, 588 (Tex. App.—Texarkana 2012, no pet.).

As was stated above, in order for an appellant to prevail on its restricted

appeal, "error [must be] apparent on the face of the record," Alexander• v. Lynda 's

Boutique, 134 S.W.3d 845, 848 (Tex. 2004), and a "no evidence" point will be

-29-
sustained when there is a complete absence of evidence of a vital fact. Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996); see also Petco

Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. Civ. App. — Austin

2004, no pet.). Appellee here proffered no arguments, and the record contains no

evidence or statement of facts that supports a finding that $2,500.00 in attorney's

fees was reasonable and necessary. Nowhere in the record is there an examination

of the eight factors listed above by the district court. As a result, the district court's

award of $2,500.00 for attorney's fees was arbitrary and unreasonable, constituting

apparent error, and must be reversed.

VII. ERROR 6: IN ADDITION TO THE MANDATORY VENUE
REQUIREMENT UNDER SECTION 15.011, THE
RECEIVERSHIP CLAIM WAS ALSO REQUIRED TO BE FILED
IN THE COUNTY WHERE THE PROPERTY IS LOCATED
(WILLIAMSON COUNTY), YET IT WAS FILED IN THE
WRONG COUNTY (TRAVIS COUNTY).

In general the usual rules of venue apply to receivership proceedings. See,

e.g., Pratt v, Amrex, Inc., 354 S.W.3d 502, 504-505 (Tex. App.—San Antonio

2011, pet. denied) (venue exception for land determined proper venue in action by

receiver against strange to receivership); Alexander v. Alexander, 99 S.W.2d 1062,

1064 (Tex. Comm'n App.—Austin 1936, no writ) (allegation that underlying

action was for partition of real estate in Brown County was sufficient to show

jurisdiction of Brown County district court). Here, there is no question that the

mandatory venue statute in Section 15.011 applies. Consequently, the receivership

-30-
claim is similarly subject to the mandatory venue of Williamson County. The

Travis County court was without authority to issue the receivership order,

constituting reversible error.

VIII. ERROR 7: THE RECEIVERSHIP CLAIM FAILED TO NAME
ALL PARTIES IN INTEREST — NAMELY, INDYMAC, THE
FIRST MORTGAGE HOLDER -- AS REQUIRED BY TEX. R.
CIV. P. 39.

In an application for a receivership, all persons or entities over whose

properties a receiver is to be appointed are parties needed for just adjudication of

the proceeding. Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744, 747

(Tex. Civ. App.—Corpus Christi 1970, no writ) (all such persons held necessary

and indispensable under former Tex. R. Civ. P. 39); see also Tex. R. Civ. P. 39(a);

Arnold Motor Co. v. C. I. T. Corp., 149 S.W.2d 1056, 1059 (Tex. Comm'n App.—

Galveston 1941, no writ) (applying traditional "fundamental error" analysis). Even

before the 1970 amendments to Civil Procedure Rule 39, Texas courts had some

reluctance to treat a problem of parties as jurisdictional (see Whitson Co. v. Bluff

Creek Oil Co., 256 S.W.2d 1012, 1014 (Tex. Civ. App.—Fort Worth 1953, writ

dism'd) (in action between co-owners of oil lease, appointment of receiver was not

reversible error despite failure to join owners of overriding royalty interest,

because trial court could determine at trial on merits whether all necessary parties

had been joined). Under modern procedure, however, all persons who claim an

-31-
interest in properties placed in receivership should be joined if feasible. TEX. R.

Civ. P. 39(a). In a proper case, a property owner may be "regarded as

indispensable" TEX. R. CIY. P. 39.

Here, Appellee's Petition acknowledges the existence of a first mortgage

lien on the property (C.R. 4-5 - Original Petition, pp. 2-3, 1 6), but fails to identify

the lender. In the Judgment, however, the district court attached a copy of the

Special Warranty Deed conveying Appellee's interest in the property to Appellant

(the same conveyance that was erroneously rescinded by the district court). (C.R.

20 - Judgment, Exhibit 1.) The body of the Special Warranty Deed identifies the

underlying indebtedness as a $256,200.00 purchase money loan from IndyMac

Bank, F.S.B. Despite acknowledging the existence of IndyMac's interest in the

property and in the proceedings, Appellee failed to name IndyMac as a party to the

receivership proceedings and the record fails to show any notification to IndyMac

thereof.

Rule 39(a) of the Texas Rules of Civil Procedure notes the importance of

including all parties in interest because their absence may "(ii) leave any of the

persons already parties subject to a substantial risk of incurring double, multiple, or

otherwise inconsistent obligations by reason of his claimed interest." TEX. R. Cry.

P. 39(a)(ii). Here, Appellant Mehl assumed the first mortgage indebtedness as part

of the settlement agreement (C.R. 5 - Original Petition, p. 3, 11 7-8), in exchange

-32-
for which Appellant received an assignment of 100% of the subject property. This

conveyance, however, was rescinded by the district court, leaving no ruling,

disposition, or change in Appellant's assumption of the first mortgage.

Consequently, Appellant is still obligated to pay the underlying indebtedness, yet

she has been stripped of 50% of the ownership in the property itself Had IndyMac

been made a party to the action, the rights and obligations of all parties would have

been before the Court. Further, it is very unlikely that any default judgment would

have been entered against Appellant, since an interested third party (IndyMac)

would also have been in the picture overseeing the overall disposition of these

proceedings.

Appellee's failure to comply with his statutory requirement to name

IndyMac renders the proceedings incomplete and enabled Appellee to assume a

position of possession (through the receiver) superior to the rights of the

underlying lienholder. The Judgment should be reversed, the receivership

appointment vacated, and the Appellee required to replead in order to add IndyMac

as a necessary party to the proceedings.

IX. ERROR 8: APPELLANT WAS NOT GIVEN THE
STATUTORILY REQUIRED THREE-DAY NOTICE OF THE
HEARING ON THE PETITION FOR APPOINTMENT OF A
RECEIVER.

There is no indication in the record of this case that Appellant was given any

notice of the hearing on Appellee's Petition for the appointment of a receiver. If

- 33 -
the application for receivership concerns property that is fixed and immovable, the

court is required to give notice to the adverse party unless otherwise provided by

statute. TEX. R. Cry. P. 695; 7 (insufficient notice given when oral request for

receivership was made after close of evidence at conclusion of temporary

injunction hearing); Helton v. Kimbell, 621 S.W.2d 675, 678 (Tex. App.—Fort

Worth 1981, no writ) (notice requirement applies to mineral receiverships under

predecessor of TEX. CIV. PRAC. & REM. CODE §§ 64.091, 64.092); see,

e.g., Nationwide Life Ins. Co. v. Nations, 654 S.W.2d 860, 861-862 (Tex. App.—

Houston [14th Dist.] 1983, no writ) (vacating order of receivership for lack of

notice)]. Real estate is fixed and immovable property within the meaning of Civil

Procedure Rule 695, and notice is therefore required before a receiver may be

appointed if real property is involved. Krumnow v. Kr•rnnnow, 174 S.W.3d 820,

829 (Tex. App.—Waco 2005, pet. denied); N. Side Bank v. Wachendorfer, 585

S.W.2d 789, 791-792 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ).

Under Texas Rules of Civil Procedure 695, the court must set a receivership

application for hearing and serve notice on the adverse party not less than three (3)

days before the hearing. TEX, R. Civ. P. 695; see Krumnow v. Krumnow, 174

S.W.3d 820, 829-830 (Tex. App.—Waco 2005, pet. denied) (notice improper

when court raised issue of appointment of receiver on its own motion); Marion v.

Marion, 205 S.W.2d 426, 429 (Tex. Civ. App.—San Antonio 1947, no writ) (show

-34-
cause order issued at time of original appointment does not constitute notice for

subsequent modified order of appointment). This rule does not confer personal

jurisdiction absent some type of citation or appearance by the named defendant.

Gray v. Phi Res., Ltd., 710 S.W.2d 566, 567 (Tex. 1986) (rule not satisfied by three

days' posting of petition at courthouse).

Failure to give notice makes the appointment of the receiver voidable, not

void. Johnson v. Barnwell Prod. Co., 391 S.W.2d 776, 785 (Tex. Civ. App.—

Texarkana 1965, writ ref d n.r.e.); Helton v. Kimbell, 621 S.W.2d 675, 678 (Tex.

App.—Fort Worth 1981, no writ). Thus, as other courts of appeal have noted, any

question of notice should be raised in a direct attack, such as a motion to vacate the

order of appointment or an appeal. An appeal may be preferable because making a

motion to vacate waives any complaint about the absence of notice. Marion v.

Marion, 205 S.W.2d 426, 429 (Tex. Civ. App.—San Antonio 1947, no writ).

The record fails to show that Appellant ever received notice of the

receivership hearing. Accordingly, she was thereby denied proper due process and

an opportunity to be heard before the receiver was appointed. Thus, the district

court's Judgment appointing the receiver is VOID, and should be reversed and this

Court order the receiver dismissed from this action.

- 35 -
 PRAYER

Based upon the foregoing, it is clear that the district court's Judgment is fraught

with numerous points of error, all as plainly seen from the face of the record. The

district court was without proper venue to entertain the action before it, requiring

reversal of the Judgment. The Judgment itself and relief entered is without support

in fact or in law, and there is no evidence in the record to support the relief granted.

Accordingly, Appellant prays that this Court reverse the Judgment in its entirety

and remand the matter with instructions that the receivership is vacated and that all

further proceedings must be transferred to Williamson County, Texas, where

Appellant would be permitted to answer or otherwise plead to Appellee's claims;

that Appellant be awarded her costs incurred herein, including all reasonable

attorney fees incurred as a result of overturning Appellee's unwarranted Judgment;

and for such other and further relief as may in the premises be just and equitable.

Respectfully submitted,

THE LEFLER LAW FIRM
1530 Sun City Blvd, Ste 119
Austin, Texas 78633
T (512) 869-2579
F (866) 583-7294

/s/ Sandra M Lefler
SANDRA M. LEFLER
State Bar No. 12161040
slefler@leflerlegal .com

LEAD COUNSEL FOR APPELLANT

- 36 -
 CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of March 2015, Appellant served
Appellee with a true and correct copy of the foregoing Appellant's Brief via
electronic filing service to:

Brent Allen Devere
Devere Law Firm
1411 West Avenue, Ste 200
Austin, Texas 78701
bdevere@l411west.com

/s/ Sandra M Lefler
SANDRA M. LEFLER

-37-
 CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft Word
2013 and contains 7,614 words as determined by the computer software word
count function, excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).

is/ Sandra M Lefler
SANDRA M. LEFLER

-38-
 APPENDIX

1. Judgment dated July 29, 2014

2. Notice of Judgment returned to District Court Clerk marked "Unclaimed" —

filed September 23, 2014

3. Tex. Prac. & Remedies Code § 15.002

4. Tex. Prac. & Remedies Code § 15.011

5. Tex. R. Civ. Pro. 39
 APPENDIX

1. Judgment dated July 29, 2014

2. Notice of Judgment returned to District Court Clerk marked "Unclaimed" —

filed September 23, 2014

3. Tex. Prac. & Remedies Code § 15.002

4. Tex. Prac. & Remedies Code § 15.011

5. Tex. R. Civ. Pro. 39
 APPENDIX
DOCUMENT 1
 DC BK14217 PG560
Disp Parties: Filed In The District Court
!Asp cede:. Q./0 /CLS..; of Travis County, Texas
Redaetpg,s:
JUL 2 9 2014
..ludge Clerk
At $ 14 2- M.
CAUSE NO. D-I-GN-14-002071 Amelia Rodriguez•Menaza, Clerk

DAVID STERN, IN THE DISTRICT COURT
iS
Plaintiff

V.
2501/ JUDICIAL DISTRICT

PAMELA MEHL,
Defendant TRAVIS COUNTY, TEXAS

JUDGMENT FOR TITLE TO REAL ESTATE AND DAMAGES

The hearing on this cause was held on July 29, 2014. Plaintiff; David Stern, appeared, by

and through counsel and Defendant, Pamela Mehl, although duly cited to appear by filing an

answer herein, failed to file an answer within the time allowed by law.

1. On the claim of Breach of Contract, the Court finds in favor of Plaintiff; David Stern, and

against Defendant, Pamela Mehl.

2. On the claim of Trespass to Try Title, the Court finds in favor of Plaintiff, David Stern, and

against Defendant, Pamela Mehl.

15
 DC BK14217 PG561

Pursuant to the pleadings and evidence on file, the Court finds and ORDERS as follows:

A. The Court recognizes a vendor's lien, equitable lien and a deed of trust to secure

assumption for and in favor of David Stern on the Property (The "Property" is otherwise known

as 700 Grove Lane, Georgetown, Texas 78626, Williamson County along with all improvements

and mobile homes, and is further described on Exhibit I attached herein) by virtue of David

Stern's prior 50% conveyance of the Property to Pamela Mehl.

B. The Court hereby awards David Stern judgment for title and possession of 50% of

the Property based on a rescission of the prior conveyance under document #2013063557 of the

Williamson County Real Property Records.

C. The Court further awards David Stern actual damages against Pamela Mehl in the

amount of $20,000.00 (Twenty Thousand and 00/100 Dollars).

D. The Court awards David Stern, attorneys' fees in the amount of $2,500.00 (Two

Thousand Five Hundred and 00/100 Dollars), against Defendant, Pamela Mehl.

E. Plaintiff, David Stern, is entitled to post judgment interest on the total amount of

the judgment awarded hereinabove, at the rate of 5% per annum from the date this judgment is

signed until paid.

F. Costs are hereby taxed against Defendant, Pamela Mehl.

G. Plaintiff, David Stern, has a right to the Property, and the Property is in danger of

being materially injured, thus requiring the appointment of a receiver. The Court appoints Nancy

Perry as receiver. Receiver shall take an oath swearing to perform the duties of receiver

faithfully, and receiver shall post a $200.00 (Two Hundred and 00/100 Dollars) bond that shall

be conditioned on faithful discharge of duties as receiver and obedience to the orders of the

Court. Receiver shall be vested with the powers to take charge and keep possession of the
2

16
 DC 8K14217 PG562

Property, receive rents, and sell the Property and hire real estate brokers and other agents to sell

the Property, with such sale being subject to Court approval The rent and sale proceeds shall be

used to pay all valid secured liens on the property and property taxes due plus payment of all

amounts due under this judgment, with the remaining proceeds, if any, being paid 50/50 to

Plaintiff and Defendant. The receiver shall be entitled to compensation at $175.00 an hour and

reimbursement of reasonable and necessary expenses, after application to and approval by the

Court for such fees and expenses. Receiver's fees and expenses shall be taxed as costs.

IT IS FURTHER ORDERED that Plaintiff, David Stern, may record this order in the real

property records as evidence of ownership of the Property, and is entitled to enforce this

judgment through abstract, execution and any other process necessary, and all writs and

processes for the enforcement and collection of this judgment and costs may issue.

IT IS FURTHER ORDERED that this is a final judgment and finally disposes of all

parties and all claims and is appealable.

SIGNED this the 1 day of July, 2014.

DISTRICT) 1IGE PRESIDING

Approved as to Form:

3

17
 DC BK14217 PG563

Brent A. Devere
SBN#00789256
1411 West Avenue, Suite #200
Austin, Texas 78701
Ph: 512-457-8080
Fax: 512-457-8060

Attorney for David Stern

4

18
DC BK14217 PG564

EXHIBIT I

19
 DC BK14217 PG565

12-12209-hcrn Doc#124-2 Filed 05/22/13 Entered 05/22113 16:33:15 Exhibit Pg 7 of 34

Special Warranty Deed

Notice of confidentiality rights: If you are a natural person, you may remove or strike any
or all of the following information from any instrument that transfers an interest in real
property before it is filed for record in the public records: your Social Security number or
your driver's license number.

Date: May 3, 2013

Grantor: David Stern

Grantor's Mailing Address:

CI 00 C5 N162- 00. *i.610
LtIf J()&-c-e-si eA.
00 Lis—
Grantee: Pamela Mehl

Grantee's Mailing Address:

700 Grove Lane
Georgetown, Texas
Williamson County

Consideration:

A settlement agreement in a bankruptcy case style In .Re: Pamela Christina Meld, filed

under Case No. 12-12209 in the Western District of Texas, Austin Division, and ten dollars and

other valuable consideration paid by Grantee, and Grantee's assumption of the unpaid principal

and earned interest on the note in the original principal sum of Two Hundred Fifty-six Thousand

Two Hundred dollars ($256,200.00) dated August 11, 2004, executed by David Stem, and

payable to the order of IndyMac Bank, F.S.B.. The note is secured by a vendor's lien retained in

a deed dated August 11, 2004, to David Stern and Pamela Meld, and additionally secured by a

deed of tntst dated August 11, 2004, from David Stern and Pamela Mehl to Charles A. Brown,

Trustee, recorded in clerk's file number 2004064127 of the official public records of real

20
 DC BK14217 PG566

12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 16:33:15 Exhibit Pg 8 of 34

property of Williamson County, Texas. Grantee agrees to indemnify and hold Grantor harmless

from payment of the note and from performance of Grantor's obligations specified in the

instruments securing payment of the note. Grantor assigns to Grantee the casualty insurance

policy on the property, all utility deposits for utility service at the property, and all funds held in

escrow for payment of taxes and insurance premiums.

Property (including any improvements):

The legal description is attached hereto and incorporated herein for all purposes

Reservations from Conveyance and Exceptions to Conveyance and Warranty:

Grantor reserves no interest in any oil, gas, and other minerals in and under and that may

be produced from the property.

This deed is subject to all easements, restrictions, conditions, covenants, and other

instruments of record.

Grantor, for the consideration and subject to the reservations from conveyance and

exceptions to conveyance and warranty, grants, sells, and conveys to Grantee all of Grantor's

interest in the property, together with all and singular the rights and appurtenances thereto in any

-way belonging, to have and hold it to Grantee and Grantee's heirs, successors, and assigns

forever. Grantor binds Grantor and Grantor's heirs and successors to warrant and forever defend

all and singular the property to Grantee and Grantee's heirs, successors, and assigns against

every person whomsoever lawfully claiming or to claim the same or any part thereof when the

claim is by, through, or under Grantor but not otherwise, except as to the reservations from

conveyance and exceptions to conveyance and warranty.

When the context requires, singular nouns and pronouns include the plural.

Grantee assumes all ad valorem taxes due on the property for the current year.

21
 DC BK14217 PG567

1242209-hem Doc#124-2 Filed 05/22/13 Entered 05122/13 16:33:15 Exhibit Pg 9 of 34

avid

This instrument was prepared based on information
furnished by the parties, and no independent title
search has been made.

STATE OF 6 140 r
COUNTY OF 1_45 A -) Q_L f

This instrument was acknowledged before me on 3.4, 2-41( 2'7 (-3 by David

Stern. CHUCK JIRO MURAYAMA
CommissIou # 1990849
Notary Public - Califotnla
Los Angeles County .)-1
My Comm. Expires Oct 9, 2016 t

PREPARED IN THE OFFICE OF: AFTER RECORDING RETURN TO:

0 H. Bryan Hicks, PLC Pamela Mehl
901 2nd St. 700 Grove Lane
Marble Falls, TX 78654 Georgetown, Texas
Tel: (830) 693-2165
Fax: (830) 693-8185

22
 DC BK14217 PG568

12-12209-hem Claim#5 Part 2 Filed 10131112 Exhibit Page 27 of 34

Alt that origin tract ce panel (gland situated in Wilharnion coon% Teas, oc." 1110 'Ohm Berry SurveY,
Abalract No. SI mai tha M. 3. Carew Sorrey, Midi act No. 246 nod bolni that Tact 1 cowrie/ to
Raymond A. Moon by Warmly Deed dated August 30,1913 mod retarded in Volt ma 12.31, Piga 233 of
the Official Record, of Williarroot County god ckacribod by metal grad bound. u RAMC
•

okra NRK) 14 an Iron pipe fence cornar part In the North lint of Oroyal-ana for the Sootily:4041w o$.
that tact daroabed in a Wattanly Deed lc Debby Jana itchy recorded in Volume 730, Pap 77) of the
Williamson County Mad Records being Ma Southeast corge of said Moors Tv act I and this trar.t;
•
THIENCV.: S 7)* 36' 14" W 176.76 fa* with the North IrDc of Oros Lane to ict Imo pin round for the
Scxdhetst caorrwr of tbat Tract 11 as described in said Moor, Werraely Used for the Scrothwcst cam of
said Tract 1 and this tact;

IHENCR: 1.11b tits common lin • of said 'Tract 1 and Tract 11; N tr 03' 07" W 431.03 fool to an lion pin
frond and 34 16' 33' 47" W 43/.44 to to bon pin found for the Northust coma of said Tract J1 and bring
the 14c4thweert cornet ofaaid Tract 1 rued 0.1.1 tract;

'1113a1C35; with the North line of said Tract
11 71' 13' 14" t~ 31331114 to La bon ptracam4,
2) N -Fr 11' 37" R 182.11 feat to as iron pin found,
3) N 73' 45" 11 40.01 rant IQ an lien On round.
4) N 61'29' 11" E. 90.11 feat to so hart pin fouosd Fs tiro Watt IlDe of said lathy tract rot the
Nor*calt comer of mid Tract 1 and Oda tract;

TKENt't :Jong the'Wett fine of laid holly tract and the Past Env of said firaca.
1) S 124 31' 30" E 370.14 feet to tt iron pin kuncl,
1) S 10' 23' 7.5" E 341.191=1 to artbon piA found, •
3) S 3' 40' 44" E 195.19 fact to lb° platy of csir\n‘nis and contain/4 17.23 aver of heal.

RECORDERS MEMORANDUM
All or parts Drill. text on this page was
not clearly legible for satisfactory
recordation

Exhibit "

23
 DC BK14217 PG569

12-12209-hcm Claim#5 -Part 2 Filed 10/31112 Exhibit Page 28 of 34

AII that cal sin mice or parcel of lend situldoi in Willitunon County, Taw, out eft John Berry Survey,
Abstract So. SI and being that Ttact U annoyed to Raymond A. Mom by Warranty Dad doted August
30, 1415 sod recorded in Volume 1231, Rage 23 S of the Oflisid Records of Williamson County and •
de:scribtdisy metes and bounds as follows:

BEGINNING u an Iron pin found in the Noah Eno of Grove Lane foe Al Southeast 031110 'Atha teem
described In a Warr ■my Died to Richard A. Mites, es ins dated November I, 1914 and too:sided in Votonto
1093, Page 933 of said ofitelal retards, being the Southwest comer of Kid Moors tract and this Ind;

THENCE. N li• 29' 00" W 194.745 fee with the VIcat lino of said Maxi track, being the ()alio of
bearings cited hereon, to an iron pin found for the Northeast miner of ea Wes tract Iteitti. the Northwest
comet of PM },lours end ad' tract
'MENGE' N 7 1 - 24' 33" E 537.19 feet to en iron pin found for the Northwest coma of that Tract 1 as
dmeTibed In the aforementioned Moore Warranty Deed being the Northeast corner of said Moore Twill
end this tract;

THENCE: along the common tins of laid 'Tract I and Trace 11, S sr 47" E 431.43 fact to an iron pin
found, and S 0'03' 07" 5 431,03 feet to Jan iron pin found in the North line of said Grovo Lane for the
Southwest comet of said Traci I and being the Southeast corm of said Tri‘i 11 IM distract;

THENCE; S 71' 14' 02" W 6908 fist to the place of Begirmins and conlainin$ 16.67 etre-1°14nd.

- • • - -----
RECORDERS MEMORANDUM
All or parts of the text on this page was
not dearly legible for satisfactory
rtrontatirm

Exhibit "
FILED AND RECORDED
OFFICIAL PUBLIC RECORDS 2004064127

O8/13/2004 12:55 P11
ALLEN $ 50 .00
NANCY E. RISTER, COUNTY CLERK
UILLIAMS0N COUNTY, TEXAS

•

24
 DC BK14217 PG570

1111111111 11111111111111111E11111111111 2009086302

CAD No. Rn39021

Notice of Confidentiality rights: If you are a natural person, you may remove or strike any of the
following Information from this Instrument before it is filed for record in the public records: your
social security number or your driver's license number.

GENERAL WARRANTY DEED

DATE: November 14, 2006

GRANTOR: Linda Moore, a/k/a Linda R. Moore, Individually, and as Independent Executrix of the Estate of
Raymond A. Moore, deceased, Kathy Moore, and Randy Moore

GRANTOR'S MAILING ADDRESS:

GRANTEE: David R. Stern and Pamela C. Mehl

GRANTEE'S MAILING ADDRESS: 700 Grove Lane, Georgetown, Williamson County, Texas 78626

CONSIDERATION:

$10.00 and other valuable consideration, receipt of which Is hereby acknowledged, and for the payment of which no
lien, either express or implied, is herein retained.

PROPERTY (including Improvements):

FEE SIMPLE TITLE in and to the perimeter description of a 35 foot wide mad containing 5.115 acres,
approximately one-half being in the M.J. Garcia Survey, Abstract No. 246, and one-half In the John Derry Survey,
Abstract No. 51, In Williamson County, Texas, and being a part of an 8520 atte Pitt conveyed to Charles Penzler,
tt ux, of record in Volume 420, Page 86, Deed Records of Williamson County, Texas. and containing all of a 35 foot
ell shaped strip described in a deed from Etna M. Lindell and A. William Lindell to Charles railer, dated July 23,
1968, and recorded In Volume 509, Page 341, Deed Records of Wit/Lamson County, Texas; said 15 foot mad being
more particularly described by metes and bounds as follows:

BEGINNING at the lower Southwest comer of the said ell shaped strip in the North lino of County Road 152, also
being the lower Southwest corner of a 139.17 acre tract described in a deed to Etna Miller end Laura Miller, dared
October of 1957;

'THENCE North 19 degrees 08 minutes West 66937 feel to an ell corner of the 139,17 acres and an ell comer of said
tri shaped strip;

THENCE South 71 degrees 20 minutes 35 seconds West 2527.08 feet to a point on or near the upper Southwest
corner of the 139.17 acres and the upper Southwest corner of the ell shaped strip;

THENCE 71 degrees 17 minutes West 859.01 feet end South 71 degrees 18 minutes 40 seconds West 900,57 feet
with the South lino of the said 85.20 eery tract, as fenced, to an iron pin set at the Southeast corner of a 9.983 acre
vest;

Qtl
exki 51 -r
25
 DC BK14217 PG571

THENCE South 70 degrees 57 minutes 30 seconds West 100.0 feet and South 71 degrees 32 minutes 40 seconds
West 417.53 feet with the South line of the 85.20 acres and the South line of the 9.9133 acres to an iron pin set et the
Southeast corner of a 16.867 acre tract;

THENCE North 19 degrees 00 minutes 45 seconds West at 35 feet past an iron pin on line, continuing in all 554.29
feet with the common line between the 16.867 acre tact and the 9.983 acre tract to an iron pin set beside a fence
corner post;

THENCE Nonh 27 degrees 37 minutes 40 seconds West 74.92 to an iron pin set in the common line between the
16.867 AGM and the 9.983 acres, and continuing with the same line in all 144.54 feet to a point on curve with a
radius of 80.59;

THENCE with the arc of the curve to the tight, the chord bears South 54 degrees 19 minutes East 77.92 feet to the
end of the curve;

THENCE South 27 degrees 37 minutes 40 seconds East 77.55 feet to a point;

THENCE South 19 degrees 00 minutes 45 seconds East 522.28 feet to a point;

THENCE North 71 degrees 32 minutes 40 seconds Fast 382.69 feet and North 70 degrees 57 minutes 30 seconds
East 99.94 feet to the East line of the said 9.983 acre tract:

THENCE North 71 degrees 18 minutes 40 seconds East 900.67 feet and North 71 degrees 17 minutes East 859.02
feet to a point on or near the common line between the 85.20 acres and the 139.17 acres;

THENCE North 71 degrees 20 minutes East 2561.53 feet to the Northwest corner of the ell shaped tract described in
Volume 509, Page 341, Deed Records of Williamson County, Texas;

THENCE South 19 degrees 09 minutes 20 seconds Fast 704.70 feet to the Southeast corner of the eil shaped tract
and to the North line of County Road 152;

THENCE South 71 degrees 08 minutes 20 seconds West 35.0 feet with the North line of County Road 152, to the
POINT OF BEGINNING.

RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY:

This conveyance Is made and accepted subject to: 1) all restrictions, covenants, conditions, rights-of-way and
assessments if arty, affecting the above-described property that are valid, existing and properly of record; 2) all
easements, including specifically but without limitation any access, ingress and egress, or other easement granted to
any other person for the use of the subject road; and 3) to taxes for the year 2007 and subsequent years.

Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and
warranty, grants, sells and conveys to Grantee the property, together with all and singular the rights and
appurtenances thereto in anywise belonging, to have and to hold it to Grantee, Grantee's heirs. exceutors,
administrators, successors and assigns forever. Grantor hereby binds Grantor and Grantor's heirs, ext.-attars,
administrators, successors and assigns to warrant and forever defend all and singular the popcity to Grantee and
Grantee's heirs, executors administrators, successors and assigns against every person whornsoever lawfully
claiming or to 4Iairn the same or any part thereof, except as to the reservations and exceptions to conveyance and
warranty.

FILED AND RECORDED
OFFICIAL PUBLIC RECORDS 2013063557
CR‘.10,
07/08/2013 02:10 PM
@ ail-1-0,1, Pt.c. CKASEBERG $40.00
NANCY E. RISTER, COUNTY CLERK
qv 1.0- WILLIAMSON COUNTY, TEXAS

AMAA-4-U. 4-Ctita, Tr 1kV ff

26
 APPENDIX
DOCUMENT 2
Amalie Rodriguez-Mendoza
District Clerk, Travis County
Travis County Courthouse Complex
P.O. Box 679003
Austin, Texas 78767

DATE: August 05, 2014
Filed in The District Court
of Travis County, Texas

SEP 2 3 2011
MEHL PAMELA
700 GROVE LANE
At Pc141 M.
Am0:aodriguez-Mendoza, Clerk
GEORGETOWN, TX 78626

JUDGMENT FOR TITLE TO REAL ESTATE''AND DAMAGES

D-1-GN-14-00207k0'‘
DAVID STERIa.
VS.
PAMELA mga,

You are hereby notified that e above order has been signed and
entered JULY 29TH, 2014 in 250TH JUDICIAL DISTRICT COURT of
Travis County Texas in the ab...fa numbered and entitled cause.

AMALIA RODRIGUEZ-MENDOZ/,‘, NIXIE 787 SE 1270 0209/19/1 4
District Clerk RETURN TO SENDER
UNrL AIMED
UNABLE TO FORWARD
8C1 78767900303 * 0893-11822-19-26
IiliI'llii111l~llllll11111111 II Ii l l l ii{ '~ii11i1 I 1111 I 11! 1111

L60 - 000041259 D-I -ON-14-00207 I RT
 APPENDIX
DOCUMENT 3
 Texas Civil Practice & Remedies Code - Section 15.002. Venue: General Rule

§ 15.002. VENUE: GENERAL RULE. (a) Except as otherwise
provided by this subchapter or Subchapter B or C, all lawsuits shall
be brought:
(1) in the county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2) in the county of defendant's residence at the time
the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant's principal office
in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in
the county in which the plaintiff resided at the time of the accrual
of the cause of action.
(b) For the convenience of the parties and witnesses and in
the interest of justice, a court may transfer an action from a
county of proper venue under this subchapter or Subchapter C to any
other county of proper venue on motion of a defendant filed and
served concurrently with or before the filing of the answer, where
the court finds:
(1) maintenance of the action in the county of suit
would work an injustice to the movant considering the movant's
economic and personal hardship;
(2) the balance of interests of all the parties
predominates in favor of the action being brought in the other
county; and
(3) the transfer of the action would not work an
injustice to any other party.
(c) A court's ruling or decision to grant or deny a transfer
under Subsection (b) is not grounds for appeal or mandamus and is
not reversible error.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from V.T.C.A., Civil Practice & Remedies Code §
15.001 and amended by Acts 1995, 74th Leg., ch. 138, § 1, eff.
Aug. 28, 1995.
 APPENDIX
DOCUMENT 4
 Texas Civil Practice & Remedies Code - Section 15.011. Land

§ 15.011. LAND. Actions for recovery of real property or an estate or interest in real
property, for partition of real property, to remove encumbrances from the title to real property,
for recovery of damages to real property, or to quiet title to real property shall be brought in the
county in which all or a part of the property is located.

Acts 1985, 69th Leg., ch. 959 (S.B. 797), §2, effective September 1, 1985; am. Acts 1995, 74th
Leg., ch. 138 (S.B. 32), §2, effective August 28, 1995.
 APPENDIX
DOCUMENT 5
 Texas Rules of Civil Procedure 39

RULE 39 JOINDER OF PERSONS NEEDED FOR JUST ADJUDICTATION

(a) Persons to Be Joined If Feasible. — A person who is subject to service of process shall
be joined as a party in the action if (1) in his absence complete relief cannot be accorded
among those already parties, or (2) he claims an interest relating to the subject of the
action and is so situated that the disposition of the action in his absence may (i) as a
practical matter impair or impede his ability to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest. If he has not been so
joined, the court shall order that he be made a party. If he should join as a plaintiff but
refuses to do so, he may be made a defendant, or, in a proper case, an involuntary
plaintiff.

(b) Determination by Court Whenever Joinder Not Feasible. — If a person as described in
subdivision (a)(1) — (2) hereof cannot be made a party, the court shall determine whether
in equity and good conscience the action should proceed among the parties before it, or
should be dismissed, the absent person being thus regarded as indispensable. The factors
to be considered by the court include: first, to what extent a judgment rendered in the
person's absence might be prejudicial to him or those already parties; second, the extent
to which, by protective provisions in the judgment, by the shaping of relief, or other
measures, the prejudice can be lessened or avoided; third, whether a judgment rendered
in the person's absence will be adequate; forth, whether the plaintiff will have an
adequate remedy if the action is dismissed for non-joinder.

(c) Pleading Reasons for NonjoMder. -- A pleading asserting a claim for relief shall state
the names, if known to the pleader, of any persons as described in subdivision (a)(1) — (2)
hereof who are not joined, and the reasons why they are not joined.

(d) Exception of Class Actions. — This rule is subject to the provisions of Rule 42.

SOURCE: Federal Rule 19, with textual change.
Change by amendment effective January 1, 1971: The rule has been completely rewritten
to adopt, with minor changes, the provisions of Federal Rule 19 as amended.

PUBLICATION REFERENCES. — See Texas Litigation Guide, Ch. 12, Pleading the Parties.
See also Civil Practice & Remedies Code §§17.001-17.005.