ACCEPTED
03-14-00463-CV
4851573
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/10/2015 4:36:35 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00463-CV
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
THIRD COURT OF APPEALS 4/10/2015 4:36:35 PM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
DON TITEL AND CAROL TITEL
Appellants
VS.
MORRIS MELCHOR AND LISA MELCHOR
Appellees
From the County Court at Law No. 2, Cause # C1-CV14-004232
of Travis County, Texas
the Honorable David Phillips presiding
BRIEF OF APPELLEES
Jay P. Lea
State Bar No. 24062843
jlea@namanhowell.com
NAMAN, HOWELL, SMITH & LEE, PLLC
8310 N. Capital of Texas Highway,
Suite 490
Austin, Texas 78731
(512) 474-1901
FAX (512) 474-1901
ORAL ARGUMENT REQUESTED
NAMES OF ALL PARTIES AND COUNSEL
Appellants: Don & Carol Titel
Counsel for Appellants: Paul C. Velte, IV
State Bar No. 20541700
PAUL C. VELTE, IV, ATTORNEY & COUNSELOR
109 E. Hopkins St.
Suite 204
San Marcos, Texas 78666
Telephone: (512) 353-2299
Facsimile (512) 476-9504
Email: Velte@PTexans.com
Appellees: Morris & Lisa Melchor
Counsel for Appellees: Jay P. Lea
State Bar No. 24062843
NAMAN, HOWELL, SMITH & LEE, PLLC
8310 N. Capital of Texas Hwy.
Suite 490
Austin, Texas 78731
Telephone (512) 479-0300
Facsimile (512) 474-1901
Email: JLea@NamanHowell.com
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................. ii
TABLE OF CONTENTS ............................................................................... iii
INDEX OF AUTHORITIES.......................................................................... iv
STATEMENT OF THE CASE ...................................................................... vi
ISSUES PRESENTED.................................................................................. vii
1. Did the Appellees have a duty to control the actions of minor
children who were not in their legal custody or actual care? ............ vii
2. Did the Appellees have a duty to control Mandy Edwards’
and/or Jeremy Melchor’s supervision or discipline of their
minor children? .................................................................................. vii
3. Does Texas acknowledge a claim for negligent entrustment of
real property? ...................................................................................... vii
4. Does Section 302 of the Restatement of Torts (Second) provide
an independent basis for establishing a duty of care when other
law specifically denies the duty? ....................................................... vii
STATEMENT OF FACTS ............................................................................. 1
SUMMARY OF ARGUMENT ...................................................................... 3
ARGUMENT & AUTHORITIES ON ALL ISSUES .................................... 6
CONCLUSION AND PRAYER .................................................................. 17
CERTIFICATE OF COMPLIANCE ............................................................ 18
CERTIFICATE OF SERVICE ..................................................................... 18
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INDEX OF AUTHORITIES
CASES
City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671(Tex. 1979) ............................................................................ 3
Joe v. Two Thirty-Nine Joint Venture,
145 S.W.3d 150, 156 (Tex. 2004)................................................................... 3
Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985)................................................................... 4
S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) ................ 4
D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) ........................... 4
Chon Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005) .................................... 4
El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) .......................... 4
Way v. Boy Scouts of Am., 856 S.W.2d 230, 233
(Tex. App.—Dallas 1993, writ denied) .......................................................... 4
Providence Health Ctr. v. Dowell, 262 S.W.3d 324 (Tex. 2008)................... 6
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) ............................... 6
Carter v. Abbyad, 299 S.W.3d 892 (Tex. App.—Austin 2009, no pet.) ........ 6
Greater Houston Transp. Co. v. Phillips,
801 S.W.2d 523 (Tex. 1990)..................................................................... 6, 15
In re Martin, 147 S.W.3d 453
(Tex. App.— Beaumont 2003, pet. denied).................................................... 7
McCullough v. Godwin,
214 S.W.3d 793 (Tex. App.—Tyler 2007, no pet.) ........................................ 7
St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) .................................. 9
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Scurlock v. Pennell, 177 S.W.3d 222
(Tex. App.—Houston [1st Dist.] 2005, no pet.) ........................................... 10
Bicknell v. Lloyd, 635 S.W.2d 150
(Tex. App.—Houston [1st Dist.] 1982, no writ)........................................... 13
STATUTES & RULES
TEX. R. CIV. P. 166a(c) ..................................................................................4
Tex. Fam. Code § 41.001 ................................................................................ 6
Tex. Fam. Code § 101.001 .............................................................................. 7
TREATISES
2 Restatement of Torts 2d, § 316 (1965) ........................................................ 8
2 Restatement of Torts 2d, § 302 (1965) ....................................................... 12
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STATEMENT OF THE CASE
This case arises out of damages caused by a fire allegedly started by a minor
child, who was allegedly accompanied by another minor child,
The fire spread from to the Don and Carol Titel’s (the
Appellants) real property allegedly causing damages to their property. The
Appellants sued:
1. Mandy Edwards ( mother);
2. Jeremy Melchor ( father); and
3. The Appellees, Morris and Lisa Melchor (owners of the real property on
which Jeremy Melchor and Mandy Edwards resided. Morris and Lisa
Melchor are the parents of Jeremy Melchor and the grandparents of
Appellants’ Third Amended Petition1 complains generally that Appellees
were negligent because (1) they failed to control the individuals on the property
and (2) allowed their adult son, Jeremy, to possess the land and live there with his
children which created a dangerous situation.
The trial court granted Appellees’ traditional motion for summary judgment2
which argued that Appellees do not owe a duty to Appellants as a matter of law.
Appellants now challenge the trial court’s order granting summary judgment
as to Appellees.
1
Appellants Third Amended Petition was filed in response to Defendants Motion for Summary
Judgment and was the live pleading at the time the Motion for Summary Judgment was gratned.
2
Appellees and Jeremy Melchor all moved for summary judgment. Jeremy Melchor’s motion
was denied while Appellees’ motion was granted.
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ISSUES PRESENTED3
Issue No. 1
Did the Appellees have a duty to control the actions of minor children who were
not in their legal custody or actual care?
Issue No. 2
Did the Appellees have a duty to control Mandy Edwards’ and/or Jeremy
Melchor’s supervision or discipline of their minor children?
Issue No. 3
Does Texas acknowledge a claim for negligent entrustment of real property?
Issue No. 4
Does Section 302 of the Restatement of Torts (Second) provide an independent
basis for establishing a duty of care when other law specifically denies the duty?
3
Appellants’ brief identifies the following issue for this courts consideration: “Grant of
Summary Judgment was Improper.” Appellees have attempted to characterize Appellants
arguments against summary judgment as “issues” herein.
~ vii ~
STATEMENT OF THE FACTS
Appellees, Morris and Lisa Melchor are the owners of rural property located
at 693 Pickett Lane, Liberty Hill, Texas (the “Property”).4 The property is
improved by a home.5 At all relevant times the Property and home were generally
occupied and under the control of Jeremy Melchor, Appellees’ adult son.
Appellees do not live on the Property and it is uncontested that their son Jeremy
Melchor was given full control of the Property.6
The summary judgment evidence in this case is clear – on July 11, 2011,
started the fire in question at a time when he was being supervised
by his mother, Mandy Edwards.7 On the day in question, Mandy Edwards, Jeremy
Melchor’s girlfriend, was staying in the home and caring for the children while
Jeremy was at work at Smokey Mo’s BBQ.8 After the fire,
admitted to his mother that he had learned to start fires in Boy Scouts and had
started the fire in question.9 Appellants contend that the fire marshal report is
4
See Plaintiffs’ Third Amended Petition at p.1-2 (CR 56-57).
5
See Appellees Brief at p. 6-7.
6
See Plaintiffs’ Third Amended Petition at p. 2 (CR 57) (stating that the property was turned
over to Jeremy Melchor); See also Appellants Brief at p. 8 (stating that Jeremy Melchor had been
given “all authority to control the conditions on [Appellees] property”).
7
See Exhibit B to Defendants’ Motion for Summary Judgment, Oral Depo. of Mandy Edwards,
at pp. 18 & 34 (CR 42 & 44).
8
See id. at p. 18 (CR 42); see also Exhibit A to Defendants’ Motion for Summary Judgment,
Oral Depo. of Jeremy Melchor, at p. 30 (CR 32).
9
See Mandy Edwards Depo. at pp. 34 & 37 (CR 44-45).
~1~
evidence that also started the fire in question.10 However, the
report confirms that started the fire. Deputy Fire Marshal Daniel Berger's
report states that “ stated he picked up some grass, lit it with the lighter, and
then placed it on the ground.11 The fire quickly grew in size and the kids were
unable to extinguish it.”12 According to the report, claimed that he and
had lit grass on fire earlier, and that they had “put it out by stomping on
it.”13 Yet, there is no evidence, nor do Appellants claim, that this earlier fire is
responsible for destroying their property.14 Instead, the report indicates that it is
the second fire, the fire admits he started, which grew out of
control.15 The only reference to ’s potential involvement found in the
report is a statement that told Deputy Berger that told him to start a
fire.16
Accordingly, the evidence is clear that actually started the
fire. At the time of the incident in question, permanently resided
with his biological father in Alabama and was temporarily visiting his mother.17
10
See Plaintiffs’ Response to Defendants’ Motion for Summary Judgment at p. 2 (SCR 6).
11
See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” 8th unmarked
Exhibit at 12 (CR 32).
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Exhibit A to Defendants’ Motion for Summary Judgment, Oral Depo. of Jeremy Melchor, at p.
9, 15-16 (CR 26-27).
~2~
Neither nor Mandy Edwards are related by blood or marriage to
Appellees.18 Furthermore, the summary judgment evidence indicates that Jeremy
19
Melchor never took responsibility for disciplining or supervising
was in Jeremy Melchor’s legal custody and living
permanently on the Property under the care of her father.20 However, like ,
was under the actual care of Mandy Edwards at the time of the
incident in question.21 It is undisputed that Appellees were not at the Property on
July 11, 2011 or leading up to the events in question and were not charged with the
care of the children at the time.22
SUMMARY OF THE ARGUMENT
The function of a summary judgment is to eliminate patently unmeritorious
claims and defenses, not to deprive litigants of the right to a jury trial. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979). A
trial court's order granting a traditional motion for summary judgment is subject to
de novo review. Joe v. Two Thirty-Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.
2004). The traditional summary judgment movant has the burden of showing that
no genuine issue of material fact exists, and that it is entitled to judgment as a
18
See id.; see also Mandy Edwards Depo. at pp. 8 & 19(CR 39 & 43).
19
See Jeremy Melchor Depo. at pp. 16, 22, 23 (CR 27-29).
20
See id. at pp. 13-14 (CR 24-25).
21
See Mandy Edwards Depo at p. 18 (CR 42).
22
See Third Amended Petition at pp. 2-3 (CR 57); see also Mandy Edwards Depo. at p. 16 (CR
40)
~3~
matter of law. TEX R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d
546, 548 (Tex. 1985). As defendants, the Melchors are entitled to summary
judgment if they conclusively negated an essential element of Appellants’
negligence cause of action. S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002).
The Melchors sought a traditional summary judgment arguing that they
owed no duty of care to their neighbors as a matter of law based on the facts as
pled. A negligence cause of action requires a legal duty owed by one person to
another, a breach of that duty, and damages proximately caused by the breach. D.
Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) (citing El Chico Corp. v.
Poole, 732 S.W.2d 306, 311 (Tex. 1987)). Duty, the threshold inquiry in any
negligence case, is a question of law. Chon Tri v. J.T.T., 162 S.W.3d 552, 563
(Tex. 2005); Poole, 732 S.W.2d at 311. A duty is a legal obligation that requires
the defendant to conform to a certain standard of conduct. See Way v. Boy Scouts
of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied).
First the Appellants claim that the Melchors were negligent by failing to
control the various individuals on their property. Because the law generally does
not impose a duty to control the acts of another person to prevent harm to third
parties absent certain special relationships or circumstances (and no such
relationships or circumstances are present), the Melchors do not owe Appellees a
~4~
duty to control Mandy Edwards or Jeremy
Melchor.
Next, Appellants claim that the Melchors were negligent in “creating a
dangerous situation.” In support of this claim the Appellants generally allege that
a dangerous situation was created when Appellants entrusted the Property to
Jeremy Melchor because Jeremy Melchor had children. However, Texas has not
extended claims for negligent entrustment to include entrustment of real property.
Negligent entrustment only applies to chattels. Because Appellants only factual
allegation is that the Property was negligently entrusted to Jeremy Melchor, the
facts do not support a finding of a duty. Finally, Section 302 of the Second
Restatement of Torts, upon which Appellants heavily rely, does not apply to the
determination of a duty and has only been cited in one Texas case that involved
significantly different facts than the case before the court. Section 302 and its
companion sections 302A and 303B characterizes certain conduct that involves an
unreasonable risk of harm as negligent conduct. However, using Section 302 as a
front, Appellants would have the Court apply a very broad duty to landowners who
allow children (or whose invitees allow children) on their property, because
according to the arguments of Appellants, children are by nature uncontrollable by
their parents and it is foreseeable that all children will start fires that damage third
party properties.
~5~
Because no duty exists as a matter of law, the Court should affirm the trial
court’s summary judgment in favor of Appellees.
ARGUMENT AND AUTHORITIES ON ALL ISSUES
A. Appellees do not owe a duty to third parties to control the actions of
minor children who are not in their legal custody or actual care.
Appellants contend in their Third Amended Petition that Appellees
negligently exercised control over their invitees and persons permitted to visit and
stay upon the premises. However, Texas law does not impose a duty to control the
actions of invitees. Rather, Texas law generally imposes no duty to control the
acts of another person to prevent harm to third parties absent certain special
relationships or circumstances. Providence Health Ctr. v. Dowell, 262 S.W.3d 324,
331 (Tex. 2008); Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000);
Carter v. Abbyad, 299 S.W.3d 892, 895 (Tex. App.—Austin 2009, no pet.).
Examples of relationships that have been recognized as giving rise to a duty to
control include employer/employee, parent/child, and independent
contractor/contractee. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,
525 (Tex. 1990). The relationship between an owner of real property and their
tenants, invitees, and/or their tenant’s invitees have not been recognized in Texas
as one of these special relationships; nor should they be.
TEXAS FAMILY CODE § 41.001 states that a parent or other person who has
the duty of control and reasonable discipline of a child is liable for the negligent
~6~
conduct of the child if the conduct is reasonably attributable to the negligent failure
of the parent. See TEX. FAM. CODE § 41.001. Furthermore, the Family Code
provides detailed definitions construing the parent child relationship. See TEX.
FAM. CODE § 101.001, et seq. The law does not favor shifting the duties imposed
by the Family Code from the parent to a non-parent absent unique circumstances,
such as when the parent is absent and/or the non-parent has assumed custodial
responsibilities. In re Martin, 147 S.W.3d 453, 456 (Tex. App.— Beaumont 2003,
pet. denied); McCullough v. Godwin, 214 S.W.3d 793, 808 (Tex. App.—Tyler
2007, no pet.)23. In this particular instance, the summary judgment evidence in this
case is clear – started the fire in question at a time when he was
being supervised by his mother, Mandy Edwards. Even if the Court were to
determine that there is some evidence that started the fire in
question, is not the child of Appellees nor had she been placed in
their custodial care. Therefore, the duty to control the minor children at issue
should not shift to Appellees. See id. Counsel for Appellees is aware of no Texas
case that holds that mere ownership of the property upon which a child resides
subjects a non-parent owner to custodial responsibility for a child. Such a holding
would have unthinkable consequences to property owners across the state.
23
The uncontroverted evidence is that Mandy Edwards assumed custodial care of the children in
question the day of the fire.
~7~
Accordingly, Appellees do not have a duty to control the actions of
nor
B. Did the Appellees have a duty to control Mandy Edwards’ and/or
Jeremy Melchor’s supervision or discipline of their minor children?
Appellants assert that Appellees “negligently failed to monitor and control
the actions of their invitees.” To the extent this statement is referring to Jeremy
Melchor or Mandy Edwards, Appellees do not have a duty (or a right) to control
the manner in which Jeremy Melchor and Mandy Edwards – two adults – parent
their children. Again, Texas law generally imposes no duty to control the acts of
another person to prevent harm to third parties absent certain special relationships
or circumstances. Providence Health Ctr., 262 S.W.3d at 331; Torrington, 46
S.W.3d at 837; Carter, 299 S.W.3d at 895. While the parent-child relationship
does place a duty on a parent to control a child, that duty only relates to minor
children. See, e.g., Restatement (Second) of Torts § 316 (1965) (stating that "[a]
parent is under a duty to exercise reasonable care so to control his minor child"
(emphasis added).) No special relationship or circumstance exists that confers a
duty on Appellees to control either of the adults in question. In an apparent
attempt to create a duty where none exists, Appellants assert that Jeremy Melchor
is an agent of, or in a joint enterprise with, Morris and Lisa Melchor for the
purpose of raising children. Appellants argue that Jeremy is permitted to live on
~8~
the property for the purpose of providing a stable home and wholesome
environment for the Melchors’ grandchildren, and that this creates an agency or
joint enterprise relationship for that purpose. Appellants make this argument
without citing any case that extends agency or joint enterprise liability to the act of
child rearing.
First, Jeremy, can not be the Melchors’ agent for raising or supervising the
children because the Melchors’ do not have the duty to raise or supervise the
children in the first place. See discussion supra Part A. Secondly, the Melchors
can not be in a joint enterprise with Jeremy for the purpose of raising children
because a joint enterprise can not exist without an equal right to voice in the
direction of the enterprise (in this case providing care/supervision for children).
See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002) (listing the
elements of joint enterprise). Appellants do not contend that the Melchors had
(and they did not have) legal or actual custody of any of the children at issue.
Therefore, they do not have an equal right to voice in the direction of parenting
decisions. Accordingly, no joint enterprise to parent the children can exist.
Therefore, it follows that Appellees do not owe Appellants a duty to control
Jeremy Melchor or Mandy Edwards’ parenting decisions and can not be liable for
Jeremy Melchor’s or Mandy Edwards’ alleged parenting failures under joint
enterprise or agency theories.
~9~
C. Texas does not Recognize a Claim for Negligent Entrustment of Real
Property.
Appellants’ Third Amended Petition alleges that Appellees were negligent
by “acquiring land in an area at high risk for wildfire and turning it over to their
‘never do well’ adult son, who in turn allowed young children to enter, reside,
and wander unsupervised upon their land.”24 Therefore, Appellants’ primary
complaint is that Appellees negligently entrusted the Property to Jeremy Melchor.
However, no court in Texas has recognized a claim for negligent entrustment of
real property.
“Negligent entrustment in Texas applies only to chattels; Texas courts have
not extended the concept to include the entrustment of real property.” Scurlock v.
Pennell, 177 S.W.3d 222, 226 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A
trial court’s granting of summary judgment on a claim for negligent entrustment of
real property is proper. See id. at 227.
Appellants’ brief requests the court to allow Appellants to maintain a cause
of action against Appellees because “negligence may lie in the creation of a
dangerous situation, although the final injury is activated by the conduct of a third
person.”25 Assuming this principle were to be applied in this case, the first
question should be “what conduct do Appellants allege created the dangerous
24
See Third Amended Petition at pp. 2-3 (CR 57) (emphasis added).
25
See Appellants’ Brief at pp. 19-20.
~ 10 ~
situation.” While Appellees’ brief spends considerable amount of time concerning
Jeremy’s conduct and various children’s conduct, the only indentified conduct of
Appellees (other than the failure to control the previously discussed adults and
children) is:
Appellees were aware that more than their own grandchildren
were being invited out to their land, but chose to exercise no
oversight control, other than to delegate to their son all
authority to control conditions on their property.26
Accordingly, Appellants merely allege that Appellees should not have
entrusted the property to Jeremy. In Scurlock v. Pennell a vacation home owner’s
property caught on fire when an unknown third party broke into the uninhabited
vacation home. See 177 S.W.3d 222, 223 (Tex. App.—Houston [1st Dist.] 2005,
no pet.). Fire spread to the plaintiff’s neighboring property causing damages. See
id. The neighbor sued the homeowner claiming (1) that the absent property owner
negligently left the home unlocked and the utilities on, thereby inviting vagrants,
and (2) that the absent home owner negligently entrusted the home to a third party
who started the fire. See id. at 223-224. With respect to the first factual claim, the
court held that the property owner did not owe a duty to their neighbor to prevent
unknown criminals from breaking into the house and starting fires because the
event was unforeseeable. See id. at 223-225. With respect to the second claim, the
26
See Appellants’ Brief at p. 8 (emphasis added).
~ 11 ~
court summarily held that negligent entrustment only applies to chattels and not
real property. See id. at 226.
The real factual complaint in Appellants’ Third Amended Petition concerns
third parties’ (the two adults and children) behavior not a condition of the property.
The only activity Appellees are alleged to have engaged in is allowing Jeremy
Melchor and his children to reside on the property. Therefore, the only alleged
conduct associated with the creation of “a dangerous situation,” is Appellees
entrustment of the property to Jeremy Melchor, who had children. Since negligent
entrustment only applies to chattels, Appellees do not owe the Appellants a duty
regarding the entrustment of Appellees real property.
D. Section 302 of the Restatement of Torts (Second) does not provide an
independent basis for establishing a duty of care because other law
specifically denies a duty under the facts as pled and Section 302 not
concerned with duty?
Appellants argue that “Restatement of Torts (Second), Section 302, et seq.,
provides a basis for liability on facts like the one in this case.”27 However, the
question in this case is limited to whether or not the Appellants owed a duty of care
to the Appellees not to entrust property to Jeremy Melchor.
Restatement of Torts (Second), Section 302, et seq. characterizes certain
conduct that involves an unreasonable risk of harm as negligent conduct. See 2
Restatement of Torts 2d, § 302, et seq. (1965). However, the first comment to
27
Appellants’ Brief at p. 13.
~ 12 ~
Section 302 is quite clear with respect to the sections use for purpose of
establishing a duty:
This Section is concerned only with the negligent character of the
actor's conduct, and not with his duty to avoid the unreasonable risk.
. . The duties of one who merely omits to act are more restricted, and
in general are confined to situations where there is a special relation
between the actor and the other which gives rise to the duty. . . If the
actor is under no duty to the other to act, his failure to do so may be
negligent conduct within the rule stated in this Section, but it does not
subject him to liability, because of the absence of duty.
Restatement 2d of Torts § 302, comment a (emphasis added). Furthermore, the
one case in the history of Texas jurisprudence that mentions this section of the
Restatement addressed significantly different facts and did not recognize a duty
similar to the duty Appellants request this Court to recognize. In Bicknell v. Lloyd,
635 S.W.2d 150 (Tex. App.—Houston [1st Dist.] 1982, no writ), which Appellants
cite in support of their arguments, a minor child was injured when another minor
child misappropriated a three wheeled motorized cart from the Defendant. See id.
at 151. In that case, the Defendant admitted that at the time the cart was stolen by
children he had full control and responsibility for the cart. See id. at 152. On
several occasions prior to the incident in that case, children had stolen the car from
the Defendant when Defendant had left the key in the ignition. See id.
Additionally, the cart was similar to an attractive nuisance in that children would
crowd around the cart or climb on the cart when in use. See id. The Plaintiff and a
third party testified that Defendant continued to leave the key in the ignition and
~ 13 ~
left they key in the ignition when the injury occurred. See id. The court held that
it was proper for a jury to consider the Defendant’s negligence and reasoned that:
[a] party may be held responsible for a negligent omission
which involves an unreasonable risk of harm to another through
the foreseeable action of a third person. Restatement (Second)
of Torts § 302, comment j (1965). Thus, even though an injury
is the result of the unauthorized action of a third party, the party
in possession or control may be liable if the character of the
property is such that it "affords a peculiar temptation or
opportunity for intentional interference likely to cause harm."
Restatement (Second) of Torts § 302B, comment e, section G,
illustration 14 (1965).
See id. (emphasis added).
The facts before this Court are very different. In this case the “property” at
issue (raw land) is not “such that it affords a peculiar temptation.” Additionally,
and importantly, the Defendant in the Bicknell case was not the owner of the cart.
See id. At trial, the Defendant testified that his stepdaughter was the owner of the
cart yet he was in possession and control of the cart. See id. Accordingly, the
person who was actively controlling the cart at the time of the incident was sued
and not the owner of the cart. Therefore, Appellants are requesting this Court to
extend the application of Section 302 well beyond its express intended application
and well beyond Bicknell’s application in order to create a duty in direct conflict
with well established legal principles.
~ 14 ~
Appellants argue that the fire was foreseeable, based on an odd assertion:
“That children will play with fire is a matter of common human knowledge.”28
However, Appellants provide no legal basis for this claim. Instead Appellants
would have the Court characterize any landlord’s lack of knowledge as to a
tenant’s guests as “willful ignorance.” See id. at 7. No basis for such an assertion
exists in Texas law.
The Appellants have furthermore failed to plead any fact or present any
evidence that Morris and Lisa Melchor should have known that the children under
the care of adults on the property would go unsupervised, play with fire, and cause
harm to a neighboring property. Such unforeseeable conduct is similar to the
conduct addressed by the Texas Supreme Court in Greater Houston Transp. Co. v.
Phillips, 801 S.W.2d 523 (Tex. 1990). In that case, the Court found a taxicab
company not liable for the conduct of its employee who caused grievous harm to a
third party. 801 S.W.2d 523, 526 (Tex. 1990). The plaintiff in that case asserted
that the taxicab company had a duty to control the actions of its employee. Id.
Further, the plaintiffs asserted that the taxicab company was negligent in creating a
situation that presented an unreasonable risk of harm by failing to instruct its
employee not to engage in dangerous activity, namely carrying a gun. Id.
However, because no similar incident had occurred previously, the Court held that
28
See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” at 6 (emphasis
added) (SCR 5).
~ 15 ~
the employee’s actions were not foreseeable as a matter of law, and no duty to the
motorist to warn the company’s drivers not to engage in dangerous activity. Id.
The Court elaborated: “To hold that Yellow Cab created a dangerous situation by
failing to admonish its drivers not to carry guns is an unwarranted expansion” of
exceptions to the general rule that a person has no duty to control the conduct of
third persons. Id.
Instead of relying on well-settled law from binding authority, Appellants
would have the Court impose an absurd duty of care on the Appellees based on the
bizarre and unsupported assertion that it was entirely foreseeable that children from
the big city brought to such a rural setting, and allowed to roam at will
unsupervised upon thickly wooded and brush-covered land, would at some point
likely play with fire and cause grievous harm. The law should not impose a duty
on Appellees to direct parents on how to instruct or monitor their children.
Furthermore, Appellants’ only claim as to what Appellees did or failed to do is
entrust real property to Jeremy Melchor. Such allegation does not support a claim
for negligence and no duty exists.
Because negligent entrustment claims are limited to chattels and Section 302
of the Restatement is inapplicable to the issues and facts before the Court,
Appellees do not owe a duty to Appellants not to “create a dangerous situation”
when the action in question is merely entrusting property to an adult with children.
~ 16 ~
CONCLUSION AND PRAYER
The factual allegations in Appellants’ Third Amended Petition only raise
negligence claims based on Appellees alleged failure to control children that are
not in the legal or actual custody and/or failure to control adult third parties
without any special relationship with Appellees. Because the law does not impose
a duty to control such third parties for the protection of Appellees, summary
judgment was proper. Furthermore, Texas has not extended negligent entrustment
claims beyond chattels. Therefore, no duty exists to Appellants. Finally,
Restatement of Torts Section 302 does not alter other legal principles or support
the creation of a new duty. Wherefore, Appellees Morris and Lisa Melchor
respectfully pray that this Court affirm the trial court’s Summary Judgment.
Respectfully submitted,
NAMAN, HOWELL, SMITH & LEE, PLLC
8310 N. Capital of Texas Highway,
Suite 490
Austin, Texas 78731
(512) 474-1901
FAX (512) 474-1901
By: ___/s/ Jay P. Lea____________
Jay P. Lea
State Bar No. 24065923
jlea@namanhowell.com
ATTORNEYS FOR APPELLEES
~ 17 ~
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i), I hereby certify that the foregoing Brief of
Appellee was computer-generated using Microsoft Word for Windows (2007).
According to the word-count function of that program, this Brief of Appellee
contains 4,206 words, excluding any portions of this Brief exempted by TEX. R.
APP. P. 9.4(i)(1).
__/s/ Jay P. Lea _____________
Jay P. Lea
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, I hereby certify that a true and correct copy
of the foregoing Brief of Appellee was served via facsimile and via e-service to
following counsel on this 10th day of April, 2015.
Paul C. Velte, IV
109 E. Hopkins St.
Suite 204
San Marcos, Texas 78666
Facsimile (512) 476-9504
Velte@PTexans.com
__/s/ Jay P. Lea _____________
Jay P. Lea
Appendix
1. Plaintiffs’ Third Amended Petition
2. Appellants Motion for Summary Judgment
~ 18 ~
No. C 1-CV-12-008224
OONTITEL
CAROLTITEL § IN THE COUNTY COURT
Plaintiffs
v. § ATLAW#2
JEREMY DAVID MELCHOR. § TRAVIS COUNTY, TEXAS
MORRIS G. MELCHOR.
LISA MELCHOR,
MANDY EDWARDS
Defendants
THIRD AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now Plaintiffs to make this complaint of the actions of Defendants and their
children, for damages caused when one or more of Defendants' children intentionally or
negligently started a fire when a burn ban was in effect on July 11, 2011. For causes of action,
Plaintiffs would show the Court:
I. Parties & Venue
Plaintiffs are individuals. This cause of action arose in Travis County. Defendant Jeremy
Melchor is an individual, who resides in Travis County, Texas, and is already a party to this suit.
Defendant Mandy Edwards is an individual residing in Travis County, who may be served with
citation at 693 Pickett Ln., Liberty Hill, TX 78642, or where-ever he or she may be found.
Defendants Morris and Lisa Melchor are individuals who have answered this suit.
IIIII~ 11~1111111111111111111111111111111111111111111
000814761
II. Discovery Level
Plaintiffs believe discovery should proceed under Rule 190.3 (level II). Plaintiffs seek
monetary relief in an amount between $200,000.00 and $250,000.00, and within the
jurisdictional limits of this court.
III. Cause of Action: Negligence
A. By parents or those with parental authority.
On or about July 1J, 2011, children of two Defendants, Jeremy Melchor and Mandy
Edwards, negligently or intentionally set a fire to grass, at a time of extreme drought and dry
conditions throughout the State of Texas. This fire quickly raged out of control and consumed a
large swath of trees as it moved toward Plaintiff's residence. Plaintiffs believe the children were
poorly supervised by adults and Defendants were negligent in providing supervision, and also for
allowing the children to possess a cigarette lighter used to start said fire. Defendants bad the duty
of control and reasonable discipline oftbese children and are vicariously liable under Chapter 41,
Texas Family Code.
They are also liable for their own negligence as the possessors of land by failing to do
anything a reasonable person would do in possession of highly combustible land in its natural
(and drought-stricken) state to prevent a wiJdfire intentionally or negligently set by children they
invited and allowed to roam unsupervised upon the premises and surrounding lands, as in this
case, where children were allowed to go unsupervised with a cigarette lighter in hand. They
owed a duty to surrounding property owners to take reasonable steps to prevent any type of fire
during a time when a county burn ban was in effect. By violating a county ordinance designed to
prevent the very type of harm that Defendants' negligence caused, such constitutes negligence per
se.
B. By landowners.
Defendants Morris and Lisa Melchor, (hereafter "Senior Melchors") as the owners of the
property, negligently created a recipe for disaster by acquiring land in an area at high risk for
wildfire and turning it over to their 'never do well' adult son, who in tum allowed young children
2
to enter, reside, and wander unsupervised upon their land, and neighboring heavily wooded
property as well. Said defendants negligently exercised control over their land and over their
invitees and persons pennitted to visit and stay upon their premises. Defendants negligently
failed to monitor and control the activities of their invitees while upon the Defendant's land,
which activities caused grievous hann to Plaintiffs. They failed to do anything a reasonable
owner would do in possession of highly combustible land in its natural (and drought-stricken)
state to prevent a wildfire intentionally or negligently set by children knowingly invited upon the
premises.
At all material times, Defendant Jeremy Melchor was acting as the agent of the Senior
Melchors, in his role as manager of his parent's premises, or they were working together in a joint
enterprise for the purposes of providing a good home for three children residing there, and to fix
up the home and property, for its eventual resale.
PRAYER
The Plaintiffs pray that this cause be tried by jury. and that final judgment be given for
their actual damages. in addition to any such other relief. both in law and in equity, to which
Plaintiffs may prove themselves justly entitled.
Respectfully Submitted,
Mt1h
Paul C. Velte IV
109 E. Hopkins St., Suite 204
San Marcos, TX 78666
512-353-2299 (San Marcos)
Fax 512-476-9504
Email: velte@ptexans.com
Bar #20541700
ATTORNEY FOR PLAINTIFFS
3
CERTIFICATE OF SERVICE
I certifY that I have served a copy of this document upon all counsel of record on October
22,2013.
Paul C. Velte IV
4
FErt
138®ptemb®'27P12:1S
Dm® 1
County.Ctesk
Tmwh County
CAUSENO.C-l.CV-12-008224
DONTITEL& IN THE COUNTy COURT
CAROL TITEL,
§
Plaintiffs, §
V.
AT LAW NO. 2
JEREMY DAVID MELCHOR,
MORRIS G. MELCHOR,
LISA MELCHOR and
MANDY EDWARDS,
§
Defendants. § TRAVISCOUNTT,TEXAS
DEFENDANTSJEREMYDAVIDMELCHOR,MORRISG, MELCHORANDLISA
MELCHOR'S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAIDCOURT:
COMESNOW Defendants,JEREMYDAVIDMELCHOR,MORRIS0.MELCHORand
LISA MELCHOR, filing this Motion for Summary Judgment, and in support thereof, would
respectfully show unto the Court the following:
INTRODUCTION
1. Plaintiffs have broughtthis lawsuit claiming they suffered harm asa result ofa fire that
originatedonneighboringproperty ownedbyDefendantsMorrisandLisaMelcbor. Plaintiffs'First
AmendedPetition Sectionffl, ^ 1, 2.
2. Plaintiffs claim that Defendant Jeremy Melchor negligently exercised a duty ofcontrol and
reasonable discipline over a child, who setfire to grass ontheproperty owned byDefendants Moms
andUsaMelchor,andthefirespreadtoproperty ownedbyPlaintiffs. PlaintiffsallegethatChapter
DEFENDANTS'MOTIONFORSUMMARYJUDGMENT PAGEt OF 8
102519589. DOC/3)
41oftheTexasFamilyCodeprovidesthebasisforDefendantJeremyMelchor'sdutyofcare. Id.
Section III, 11.
3. PlaintiffsfurtherclaimthatDefendantsMorrisandUsaMelchor,asownersoftheproperty,
negligentlyexercisedcontroloverpersonsallowedtovisitandstayontheirproperty. Id.Sectionffl,
112.
SUMMARYJUDRMENTSTANDARD
4. To prevail on a motion for summaiy judgment, a party must conclusively establish the
absence ofanygenuine question ofmaterial factandthatheisentitled tojudgment asa matter of
law, TEX. R. Civ. P. 166a(c).
5. A defendantwhoconclusively negatesatleastoneoftheessentialelements ofa causeof
action is entitled to summary judgment asto that causeofaction. Randall's FoodMarkets, Inc. v.
Johnson, S9\ S, W.2d640, 644(Tex. l995); WomickCo. v. C(uw, 856S. W.2d732, 733CTex. 1993).
All doubts abouttheexistence ofa genuine issue ofmaterial factareresolved against the movant.
Randall's, W\ S.W.2dat644;GreatAm. Reserve Ins. Co.v. SanAntonio Plumbing Supply Co.,391
S.W.2d41, 47(Tex. l965).
SUMMARY JUDGMENT EVIDENCE
6. To support the facts inthis motion. Defendants include thefollowing summary judgment
evidenceinanappendixfiledwiththismotionandincorporatestheevidenceintothismotionby
reference.
ExhibitA: SelectedExcerpts oftheVideotaped OralDeposition ofDefendantJeremyDavid
Melchor;
Exhibit B: Selected Excerpts of the Videotaped Oral Deposition ofDefendant Mwidy
DEFENDANTS'MCmON FORSUMMARYJUDGMENT PAGE 2 OF 8
(02S19W.DOC/1',
\^
Edwards; and
ExhibitC: SelectedExcerptsoftheOralDepositionofDonaldLeeTitel.
SUMMARYJUpffWWFACTS
7. JeremyMelcherresidesat693PickettLaneinLibertyHill,Texasalongwithhisgirifnend,
MandyEdwards. Exhibit"A," MelchorDep.13:24. 14:4;Exhibit"B," EdwardsDcp.18:23-19:4.
Jeremy is a tenant on the property, occupying pursuant to anoral leasewith his father Morris
Mclchor andstepmother UsaMelchor, whoowntheproperty at693 PickettLane. Exhibit"A,"
MelchorDep. 7:14-8:6.
8. Mandy Edwardsismother totwo minor children, and fi-om
previous relationships. Exhibit "A," Melchor Dep. 14:19-15:10.
9. resides in Alabama with his father. Exhibit "A," Melchor Dep. 16:16;
Exhibit "B," Edwanls Dep. at 8:15-20.
10. does not reside, and never has resided, at 693 Pickett Lane. Exhibit "B/
Edwards Dep. at 7:25. 8:20; Exhibit "A," Melchor Dep. 16:2-12, Jeremy Melcher is not
parentorguardian,nordoesbeexerciseanyparentalcontrolordisciplineover
Exhibit "A," Melchor Dep. 22:8.24:1.
11. InJulyof2011 wasinLibertyHill,Texasvisitinghismotherandstaying
withherat693PickettLane. Exhibit"B," EdwardsDep.16:1-5. Onthemorningofjuly 11, 2011,
starteda fireina grassyareanearoraroundthehouseat693PickettLane. /
Defendant. ) TRAVIS COUNTY, TEXAS
VIDEOTAPED ORAL DEPOSITION OF
JEREMY DAVID MELCHOR
MARCH 4, 2013
VIDEOTAPED ORAL DEPOSITION OF JEREMY DAVID MELCHOR,
produced as a witness at the instance of the Plaintiffs,
and duly sworn, was taken in the above-styled and numbered
cause on the 4th of March, 2013 from 1:03 p. m. to 2:25
p. m., before Amber Kirton, CSR, in and for the State of
Texas, reported by machine shorthand, at the law offices
of Naman, Howell, Smith fi Lee, PLLC, 8310 Capital of Texas
Highway, Suite 490, Austin, Texas, pursuant to the Texas
Rules of Civil Procedure and the provisions attached
hereto.
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JEREMY DAVID MELCHOR
I INDEX
2
3 Appearances
4 JEREMY DAVID MELCHOR
5 Examination by Mr. Velte
66
6 Signature and Changes,
68
7 Reporter's Certificate,
8 Further Certification................... <........... 70
9
10 EXHIBIT
11 INDEX
12
13 NO. DESCRIPTION PAGE
14 1 Plat....,............... >-.... -..... -.... '... - 7
15 2 Letter to Paul Velte from Jeremy Melchor........ 55
16
17
18
19
20
21
22
23
24
25
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JEREMV DAVID MELCHOR
1 JEREMY DAVID MELCHOR,
2 having been duly sworn testifies as follows:
3 EXAMINATION
4 BY MR. VELTE:
5 Q. Hi. Is it Melchor or Melchor?
6 A. Melchor.
7 Q. All right. First name Jeremy?
8 A. Yes, sir.
9 Q. And what's your middle name?
10 A. David.
11 Q. What's your date of birth?
12 A. 12/23/76.
13 Q. Now, I sent a notice to your lawyer,
14 Mr. Goldsmith, of a notice of intent to take your
15 deposition today.
16 A. Yes, sir.
17 Q. And that notice - did he provide you a copy?
18 A. Yes, sir.
19 Q. And so you saw in the notice where I said to
20 bring some items with you?
21 A. I did, but I don't have any of those items.
22 Q. Okay. So T had asked you for three items. One
23 was leases and deeds related to your residence known
24 locally as 693 Pickett Lane.
25 A. Okay.
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1 Q. All right. Now, who owns the land that is at 693
2 Pickett Lane?
3 A. My father.
4 Q. Okay. Now, that would be -- I want to draw
5 you --
6 MR. VELTE: Let me get this marked.
7 (Exhibit No. 1 marked.)
8 Q. (BY MR. VELTE) I want to show you what we've
9 marked as Deposition Exhibit No. 1, and I would submit to
10 you that's a blow-up of the property tax plat records.
11 And ask you to take a look at that. And do you see
12 Pickett Lane and Ivy Lane on there?
13 A. Yes.
14 Q. And can you identify your property where you're
15 living?
16 A. I believe it's this 355413, I think.
17 Q. Okay. And that would be that little blue square
18 that's kind of in the - I guess you'd say below Ivy Lane
19 on that map?
20 A. Yes, sir.
21 Q. Okay. Now, how big is that parcel?
22 A. One acre.
23 Q. It's one acre, okay. And the larger parcel, do
24 you know how big it is?
25 A. I think it's 18 - 18 acres.
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1 Q. Okay.
2 A. 18 point something. I'm not exactly sure. I
3 don't own it.
4 Q. Now, the ~ your father owns the one acre and the
5 other 18. Do you know who owns it?
6 A. He has -- he owns it now.
7 Q. Okay. So he recently acquired that?
8 A, Correct.
9 Q, Okay. Do you know who the previous owner was?
10 A. I believe her name was Yolanda Rodriguez.
11 Q. And when did your father acquire the other 18
12 acres there that surrounds -
13 A. Don't know. You'd have to talk to him.
14 Q. You don't know a time frame?
15 A. I don't know.
16 Q. Well, I mean, was it last year?
17 A. I think so. I don't know exactly when, though.
18 It's not - I don't - it's his business, not mine.
19 Q. Do you know why he bought it?
20 MR. GOLDSMITH: Objection; form.
21 A. Could you restate the question?
22 Q. (BY MR. VELTE) Do you know why your father
23 bought the other 18 acres surrounding the acre that you're
24 living on?
25 MR. GOLDSMITH: Objection; form.
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1 side of your map is missing.
2 Q. So it's further down Ivy Lane?
3 A. It's at the end, yes. They're the last house on
4 the right at the dead-end.
5 Q. All right. So then you don't know the neighbors
6 that live at 355406?
7 A. I don't know.
8 Q. And you don't know the Titels either that live
9 across the road?
10 A. No, sir.
11 Q. Any other neighbors you know?
12 A. Just the ones I gave you.
13 Q. And you don't know the people on the other side
14 of Pickett Lane?
15 A. No.
16 Q. Would you agree that in a perfect world it's a
17 good idea to stay on good terms with your neighbors?
18 A. Yes, sir, and I am.
19 Q. You are?
20 A. With the ones that I know, yes, sir.
21 Q. Okay. Do you agree that it's a good idea to get
22 to know your neighbors?
23 A. Yes, sir.
24 0. Is it true that - well, let's ask about who
25 lives at your residence there at 693 Pickett Lane. At the
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JEREMY DAVID MELCHOR 3/4/2013
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1 time of this fire in July of 2011 who was residing there
2 at 693 Picket! Lane?
3 A. Myself, my son , my other son and
4 my daughter, and Mandy Edwards.
5 Q. Now, were there other kids there?
6 A. Yes.
7 Q. Who were they?
8 A.
9 Q. Any others?
10 A. I don't remember. I want to say but
11 I don't remember for sure if he was there or not.
12 Q. Okay. Now, let's talk about each one. So you
13 have two boys, and ?
14 A. and .
15 Q. , I'm sorry. And ?
16 A. Correct.
17 Q. So a daughter and two boys?
18 A. Uh-huh.
19 Q. What's your relationship with Mandy Edwards?
20 A. She's my girlfriend.
21 Q. Y'all are not married?
22 A. No.
23 Q. Does she still reside there?
24 A. Yes.
25 Q. And does she have children by previous
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1 relationship?
2 A. Yes.
3 Q. Okay. And who would those be?
4 A. I'm sorry, her children?
5 Q. Yes.
6 A. and
7 Q. And how old is ?
8 A. 13, I believe.
9 Q. Okay. And
10 A. Right now nine.
11 Q. And what is your relationship to and
12
13 A. They're my girlfriend's kids.
14 Q. What about - are all these children still
15 residing there now?
16 A. No, sir.
17 Q. Okay. Where are -- where are they?
18 A. Well, lives with his mother now as of
19 last year and and haven't lived there.
20 They live with their parent.
21 Q. Who are their parents?
22 A. n's is Daniel McKeever and is Kevin
23 Smith.
24 Q. And so each of those boys is now living with
25 their other parent?
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1 A. They have always, yes.
2 Q. You said they have always lived with their other
3 parents?
4 A. Yes.
5 Q. So they don't reside at your place?
6 A. No.
7 Q. Now, what about in July of 2011? Were they
8 residing at your place then?
9 A. No, they were on visit.
10 Q. So is it true they have never resided there, they
11 have always just come and stayed, what, for short periods?
12 A. Correct.
13 Q. And how frequently was that, every first, third,
14 fifth weekend?
15 A. No. I don't know dates, but it's just kind of
16 sporadically. I mean, lives in Alabama, not here, so
17 I mean, it's kind of - we can't get him first, third and
18 fifth weekend. I don't have money to do that.
19 lives in Bastrop and generally comes - just depends.
20 Three to four weeks.
21 Q. Whenever the parents agree?
22 A. No, it's not necessarily that. Just whenever he
23 has time. You know, they keep him pretty busy in school
24 and different after-school functions and stuff so whenever
25 he has time.
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1 Edwards with six children.
2 A. Correct.
3 Q. Now, I think you named five,
4 A. Okay.
5 Q. Who would the sixth child, have been?
6 A. I don't believe there was one. I believe the
7 news misreported, like they generally do.
8 Q. Ail right. Now, what is your relationship with
9 ? Does he call you Dad ever?
10 A. No.
11 Q. What does he call you?
12 A. Jeremy.
13 Q. And are you, like, his stepparent?
14 A. No.
15 Q. Whose job is it to discipline him?
16 A. I assume his mother and father.
17 Q. So you don't exercise any discipline over
18
19 A. No.
20 Q. What about the other child, Mandy's other boy,
21 ?
22 A. No.
23 Q. No. So you let Mother do all the - you let
24 Mandy, as mother, exercise all the discipline over those
25 two boys?
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1 A. Yesr sir.
2 Q. Was ever left in your care?
3 A. Not by himself, no.
4 Q. What about you and the other boys?
5 A. My kids?
6 Q. Yes.
7 A. Well, of course.
8 Q. So there are times, then, when you're the only
9 adult there with those boys?
10 A. Definitely.
11 Q. So you had authority to supervise them?
12 A. When?
13 Q. Well, any time he was left in your care.
14 A. Yeah.
15 Q. Have you ever had to discipline him?
16 A. ?
17 Q. Yes.
18 A. No.
19 Q. You've never had to spank him?
20 A. That's not my place. She's my girlfriend but not
21 my wife. It's not my place to discipline her children.
22 Q. So your testimony is no?
23 A. Correct.
24 Q. You've never had to spank the boy. Have you ever
25 had to punish him in any other way?
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1 A. Testimony was no.
2 Q. Now, father is Daniel McKeever and
3 you say that he lives out of state?
4 A. Correct.
5 Q. What state does he live in?
6 A. Alabama.
7 Q. And have you ever met that man?
8 A. One time, yes, sir.
9 Q. Okay. And does he - do you know what he does
10 for a living?
11 A. I haven't got a clue.
12 Q. Do you know what city or county he resides in in
13 Alabama?
14 A. No, sir.
15 Q. Do you know his phone number?
16 A. No, sir.
17 Q. W.hat about r's father, Kevin Smith?
18 A. Are you asking me the same questions?
19 Q. Yes. Do you know where he resides?
20 A. Yes, sir.
21 Q. Where?
22 A. Bastrop.
23 Q. Do you know address?
24 A. No, sir.
25 Q. So he lives in the City of Bastrop?
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1 Q. And where does she reside?
2 A. Smithville.
3 Q. Now, is older fchan ?
4 A. I think they're the same age. Hers is in May. I
5 think they're the same age, a few months apart.
6 Q. Which one would be older?
7 A. Probably Maybe. I'm not certain.
8 Q. Okay. Now, regarding the five children, then,
9 that would be at this residence at least on July llth of
10 2011, who normally had charge of these five children?
11 A. While I was at work?
12 Q. Yeah.
13 A. Mandy.
14 Q. What was the usual routine - daily routine? You
15 went to work in the mornings?
16 A. Yes, sir.
17 Q. Okay. And you left her in charge of the children
18 at home?
19 A. Correct.
20 Q. And is it true that the children were often left
21 unsupervised?
22 A. No. That's false.
23 Q. Is it true that CPS has been called out to
24 investigate?
25 A. That's true.
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1 Q. Are you aware in the fire marshal's report where
2 it says that Mandy Edwards sent the kids outside to eat
3 lunch?
4 A. I haven't seen the report so I couldn't tell you.
5 Q. Okay. I would ask you -- are you a smoker?
6 A. Yes.
7 Q. Is Mandy Edwards a smoker?
8 A. I guess you could say that, yeah.
9 Q. Is it true that one or more of your children were
10 smoking cigarettes at one point in the past?
11 A. False.
12 Q. So you're not aware that one of your boys offered
13 a neighbor boy a cigarette?
14 A. No, I'm not.
15 Q. Another neighbor of yours says that your children
16 run loose and are not supervised.
17 A. That's 100 percent false.
18 Q. Now, on the day of the fire where were you?
19 A. At work.
20 Q. At what location?
21 A, Cedar Park.
22 Q. At the Poky Jo's restaurant?
23 A. Smokey Mo's.
24 Q. Smokey Mo's. I'm sorry.
25 A. I'm sorry. You've called it three different
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1 things since we've been sitting here. Yes, 1431 and 183.
2 Q. Okay. And do you know who set the fire?
3 A. No.
4 Q. All right. So as we sit here today, I guess a
5 year and a half later, you don't know who started the
6 fire?
7 A. All I have is hearsay, so I don't know.
8 Q. Well, what is the hearsay you have?
9 A. What I heard was that set the fire, thafc
10 they were going out to eat and that's - I don't even
11 know. He found a lighter or something is what I've gotten
12 from, I mean, everybody. That's all I know. I don't
13 really know what actually happened that day. I wasn't
14 there.
15 Q. But surely yo.u've interviewed Mandy and the
16 children about what happened, right?
17 A. (Witness nods head.)
18 Q. So what they're telling you is that
19 started it with a lighter?
20 A. That's what I've heard, yes, sir.
21 Q. And you've taken no interest in how that
22 happened? Do you know where it happened? Do you know why
23 it happened or any of that?
24 A. I know where it happened. I saw it after the
25 fact.
U. S. LEGAL SUPPORT - AUSTIN, TEXAS
(800) 734-4995
.^
3
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 1
CAUSE NO. Cl-CV-12-008224
DON TITEL ) IN THE COUNTY COURT
CAROL TITEL )
Plaintiffs )
)
vs. AT LAW NO. 2
JEREMY DAVID MELCHOR,
Defendant TRAVIS COUNTY, TEXAS
A******************************
VIDEOTAPED ORAL DEPOSITION OF
MANDY EDWARDS
April 1, 2013
******. **********************-***
VIDEOTAPED ORAL DEPOSITION OF MANDY EDWARDS,
produced as a witness at the instance of the Plaintiffs, and
duly sworn, was taken in the above-styled and numbered cause on
the 1st day of April, 2013, from 12:59 P. M. to 2:25 P. M.,
before DOTTIE NORMAN, Certified Shorthand Reporter in and for
the State of Texas, reported by machine shorthand, at the
offices of The Texas Law Center, 1414 Colorado Street, Austin/
Texas, pursuant to the Texas Rules of Civil Procedure and.the
i^MssL^/^ZSM
provisions attached hereto.
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 2
1 APPEARANCES
2 FOR THE PLAINTIFFS:
3 PAUL C. VELTE, IV
Attorney at Law
4 109 E. Hopkins St., Suite 204
San Marcos, Texas 78666
5
6
FOR THE DEFENDANT:
7
NAMAN HOWELL SMITH & LEE, PLLC
8 By: JIM GOLDSMITH
8310 N. Capital of Texas, Suite 490
9 Austin, Texas 78731
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
.y
/
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 3
1 INDEX
2 PAGE
3 Appearances 2
4 MANDY EDWARDS:
5 Examination by Mr. Velte 4
6 Examination by Mr. Goldsmith 69
7 Correction Sheet 73
8 Signature Page 74
9 Reporter's Certificate 75
10
11 EXHIBITS
12 NUMBER DESCRIPTION PAGE
13 1 Temporary Orders dated 10-8-09 6
14 2 Citation 7
15
16
17
18
19
20
21
22
23
24
25
^Ip
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 4
1 MANDY EDWARDS,
2 having been first duly sworn, testified as follows:
3 EXAMINATION
4 BY MR. VELTE:
5 Q. All right. Your name is Mandy Edwards?
6 A. Yes, sir.
1 Q. And, Mandy, do you have a cell phone?
8 A. I do have a cell phone.
9 Q. Okay. If it goes off -- I mean, do you mind turning
10 it off -
11 A. Oh, it's off, yes.
12 Q. -- so we can do - okay. I just didn't want to have
13 any interruptions.
14 MR. GOLDSMITH: Thanks for the reminder.
15 Q. (By Mr. Velte) Have you ever had your deposition
16 taken before?
17 A. No, sir.
18 Q. Do you understand what a deposition is?
19 A. Kind of, somewhat.
20 Q. Has anybody explained it to you?
21 A. Just a little bit. I'm basically just here to tell
22 my side of the story, the truth.
23 Q. Okay.
24 A. As much as I know.
25 Q. That's why you are sworn in.
-..?
-y,
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 1
1 A. So I figured if that helps.
2 Q. All right.
3 A. That's the last known address that I do know of, so
4
5 Q. All right.
6 MR. VELTE: Let's mark that as Exhibit 2.
7 {Exhibit No. 2 marked)
8 MR. VELTE: Can I see Exhibit No. 2?
9 Q. (By Mr. Velte) So Exhibit 2 is three pages. Let me
10 just take a look at it.
11 A. Uh-huh. Okay.
12 MR. GOLDSMITH: Maybe we can take a couple of
13 minutes just to look at both of them and then swap.
14 MR. VELTE: You want to switch?
15 MR. GOLDSMITH: Sure.
16 Q. (By Mr. Velte) All right. Let me ask you about
17 Exhibit No. 2 first.
18 A. Okay.
19 Q. It states that it's a citation of - apparently you
20 sued Mr. McKeever regarding child support or child custody of
21
22 A. Actually, he sued me. He went for a summer
23 visitation and then I was served with that. And he didn't want
24 to return his son, so that's what I was faced with.
25 Q. Oh. So you sent your son to be with father for
^
^)L
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 8
1 the suminer?
2 A. Uh-huh, in 2009.
3 Q. And he didn't return him?
4 A. Yeah.
5 Q. I see. So you had to - you sued in Texas?
6 A. Yes.
7 Q. And did Mr. McKeever sue in Alabama?
8 A. No. Actually, that case is still open. And for two
9 years I have been trying to contact his lawyer and nothing.
10 Q. Okay.
11 A. Sorry. That -- that case is a little sensitive, but
12
13 Q. Yeah, I'm sure. I'm sorry to hear that. I'm just
14 trying to wrap my brain around what the situation is. The -
15 is your son?
16 A. Yes.
17 Q. Okay. And how old is he now?
18 h. He's 9 now.
19 Q. Okay. And his father lives in Alabama?
20 A. Correct.
21 Q. And when in 2009 you sent to be with him and he
22 didn't return, you initiated this action here in Williamson
23 County. Did you get -- his name is Daniel?
24 A. Daniel McKeever.
25 Q. Yeah. Did Daniel respond to the lawsuit? Did you
^
Cause No. C1-CV-12-OOB224
Oral Deposition of Mandy Edwards
Page 16
1 Q. At the time, though, that the fire began, you had
2 several children under your supervision?
3 A. Correct.
4 Q. And this is at 693 Pickett Lane?
5 A. Yes.
6 Q. Mi right.
1 A. Yes.
8 Q. And was there any other adult present?
9 A. Yes. Actually, the reason there was more children
10 was because we had hired a construction worker. He was
11 remodeling our house at the time. And his son was similar in
12 age to all the -- our children. He asked if he could bring
13 him. I said, "That would be fine. They can play, you know."
14 So it was Shane Painter. He was the construction worker that
15 was remodeling our house, and also a Jerod Duncan which is
16 Jeremy's half-brother from Katy, Texas. He was there as well.
17 He was visiting, looking for employment up here actually.
18 Q. Okay. Okay. Now, who else was present besides
19 Shane, Jerod and you? It was just the children?
20 A. Children. His son. Gosh. What is his name?
21 Q. Shane's son?
22 A. Shane's son. I'm sorry. I can't remember his name.
23 Q. Okay.
24 A. And then my son,
25 Q. Okay.
' ^, 7
(
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 17
1 A. And
2 Q. Okay.
3 A. And then Jeremy's three children,
4 and
5 Q. I'IT. sorry. I missed -- it was , and
6 who?
7 A. , . Did you get ?
8 Q. And n. Oh, is it you said?
9 A. .
10 Q. Okay. --
11 A. There is a and a .
12 Q. And a . That's what I was missing. Okay.
13 All right. So we had five children?
14 A. Correct.
15 Q. Okay. What is your profession?
16 A. As of right now I am a - my title has changed. I
17 guess you can call me a kennel technician. I just got promoted
18 to - I'm kind of doing everyone's job. Office manager. I
19 don't know. I just say kennel technician.
20 Q. What is a kennel technician?
21 A. It's a - it's at a - it's in -- it's called
22 Southern Star Ranch. It's a boarding and kennel facility,
23 canine training center.
24 Q. Okay. And that's where you work now?
25 A. Yes.
^
Cause No. Cl-CV-12-008224
Oral Deposition of Handy Edwards
Page 18
1 Q. And what about for the past few years?
2 A. Self-employment. I have just - I have cleaned
3 houses. The main reason I did that -- I started that in 2000
4 was to revolve my life around my children. So I cleaned
5 houses.
6 Q. Okay.
7 A. In the mix in between, the 13 years, I have gone to
8 college. I've, you know, done everything else, but my
9 priority, main source was cleaning houses.
10 Q. And what were you doing in July 2011 for work?
11 A. Actually, at that time I was not employed. I was
12 cleaning Jeremy's father's house every two weeks and that was
13 my only -- my, I guess, job you could say was staying at home.
14 I was the house - not housewife because I'm not his wife. You
15 know, I stayed home and took care of the house and the kids and
16 everything in between.
17 Q. Okay. So when did you -- or how did you meet Jeremy
18 Melchor?
19 A. Smokey Mo's Bar-B-Q -
20 Q. Okay.
21 A. -- where he was working at the time. Well, still
22 is, but --
23 Q. And when did you move in with him?
24 A. It was October 2010.
25 Q. Okay. And that was at 693 Pickett Lane?
^
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 19
1 A. Yes.
2 Q. Okay. What is your relationship with Jeremy Melchor
3 now?
4 A. We're still boyfriend and girlfriend.
5 Q. All right. So you were pretty much at that point in
6 time a stay-at-home moro or did you do these side jobs, too?
7 A. Pretty much stay-at-home mom. I was only cleaning
8 for his father until I figured out what I was going to do with
9 my career. It was always my goal to get in the veterinarian
10 field. And then in November 2012 - yes, 2012, that's when I
11 found this ad on Craigslist for Southern Star Ranch.
12 Q. Uh-huh.
13 A. And that's my " my new career.
14 Q. Okay. The work you did for Morris Melchor, Jerem^'s
15 father -
16 A. Yes.
17 Q. What did that entail?
18 A. House cleaning. That was a detailed house cleaning
»
19 every two weeks.
20 Q. Just one house or --
21 A. Yeah, just his --
22 Q. -- several?
23 A. No, just his house.
24 Q. Okay. Can you describe the place at 693 Pickefct
25 Lane? What kind of place is it?
^
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 34
1 with the drought, et cetera, et cetera. We just assumed it was
2 another brush fire and it jumped through the 'property. You
3 know, and we tried to backtrack where we thought they had their
4 lunch, is what we were told. There was never a lighter found.
5 There was never nothing. So ~- and all we heard was "We seen a
6 fire and it went boom and boom, " and that's all we got out of
7 it. And then --
8 Q. Okay. So do you recollect and telling
9 " Daniel Berger, I would subinit, is the deputy fire marshal's
10 name. Do you recall them telling him that they had used a
11 lighter to start the fire?
12 A. I recall -- he finally - I can't remember. It
13 was in the evening. It was dark. That whole entire day, I
14 mean they ~- everyone -- the fire marshals, the officers were
15 just interro - just pounding on him like, you know, like "You
16 started it. You started it. " He finally just gave in and
17 said, "Okay, I started it. " He said, "The only reason I did
18 because I wanted to have a campfire for our lunch. " I packed
19 them a lunch to go outside, which was a normal thing they did.
20 And he said, "I learned in Boy Scouts how to start a -- you
21 know, a small fire and I thought I could put it out. " And that
22 was it. And then we never -- after that never even seen the
23 fire report.
24 And, again, the lighter was never found. So I
25 don't know if he - is the kind that will take blame for
^
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 37
1 A. Yeah. That's when hewas just like "I did" -- you
2 know, "I started the fire. " And I'm like "Well, we need to go
3 talk to the fire marshal and discuss this."
4 Q. So you are the one then that when you got alone
5 you were able to get him to confess the truth to you?
6 A. Not necessarily.
7 Q. Well, then why did you - I don't understand. I
8 roean, you're saying ~-
9 A. Because at the time we were all upset and we were
10 talking about the possibilities of what can happen with a fire
11 if they were to start it. We didn't know at the time. Their
12 story was very consistent as far as they just went to have a
13 lunch, et cetera, et cetera. And then he literally was just
14 like "Okay, Mom, " you know. He's like "I started the fire."
15 It totally threw me off. I said, "Well, let's
16 go discuss this with the fire marshal and figure out what's
17 going on. And if you did, " I said, "of course we need to tell
18 the truth and we need to acknowledge that."
19 Q. Uh-huh.
20 A. But just how all of a sudden, it's still a mystery
21 to me because I don't understand -- I don't know if he just got
22 to the point where he's like "I'm tired of hearing this. Let
23 me just say it so I can get it over with. " Maybe make things
24 better is what I'm thinking. He was seven years old at the
25 time. He doesn't have the mental capability of, first of all,
^
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 38
1 having the intention of setting a fire purposefully. I think
2 that he was just -- everyone - I mean, I can't even explain
3 how many people were there just on his butt, you know.
4 Q. How many people were there?
5 A. The fire marshal, all the constables, the sheriff,
6 just everyone in general from the whole entire day. Like I
7 say, that -
8 Q. What about those other two men that you said, Jerod
9 and the other gentleman?
10 A. Shane?
11 Q. The carpenter guy.
12 A. Uh-huh.
13 Q. Was he there, too?
14 A. Yes. Well, they left. I don't recall exactly what
15 time they left. I roean, they stuck around a little while. I
16 don't recall. Well, Jerod was staying actually for a week.
1. 7 Shane - I don't remember exactly what time he left. But after
18 he gathered his emotions and everything calmed down, then he
19 left for the evening.
20 Q. Okay. That was after the fire had been -
21 A. Yeah, after they -
22 Q. -- called in?
23 A. - finally got it out and -
24 Q. Okay. Now, did those two men help you get out of
25 there with all the kids?
Cause No. Cl-CV-12-008224
Oral Deposition of Mandy Edwards
Page 39
1 A. Well, I was cooking - I'm trying to backtrack. I
2 was cooking lunch for the other children. Shane, the painter
3 -- he came running in the house and just said, "There's a
4 fire. You need to get everyone out. " That's all I heard. So
5 I got all the kids out, gathered them in the truck. And then
6 is like "My turtle. " So then we had to go back and gather
7 all the animals and we took off. And, like I say, it happened
8 just so fast.
9 Q. Uh-huh.
10 A. And all I knew was to get the kids out of there.
11 All I seen was black sinoke in the air. I just knew get out.
12 And Shane stayed. And it scared me to death. I kind of waited
13 for him. I was like "You can't stay here. " I didn't know
14 which way - I, of course, didn't know what was going on.
15 Calling Jeremy. He was at work. I said, "Can you - you need
16 to come home. There's a fire."
17 I proceeded I believe to call 911. And after
18 that, like I say, it was very - everything happened so fast
19 that day. My goal was to get out of there, but then I'm
20 thinking in my mind Shane is still there. It's like "He can't,
21 you know, stay there, " so I just -
22 Q. So Shane was the first one to see this fire?
23 A. Froro my knowledge, yes, because he came in and told
24 me. I was cooking lunch, like I said, for the other children.
25 And he just came running in the house. "There is a fire. Get
DONNIE LEE TITEL 3/4/2013
CAUSE NO. C-l-CV-12-008224
DON TITEL fi CAROL TITEL, ) IN THE COUNTY COURT
Plaintiffs, )
)
VS. ) AT LAW NO. 2
)
JEREMY DAVID MELCHOR, )
Defendant. ) TRAVIS COUNTY, TEXAS
**************
ORAL DEPOSITION OF
DONNIE LEE TI TEL
MARCH 4, 2013
****************
ORAL DEPOSITION OF DONNIE LEE TITEL, produced as a
witness at the instance of the Defendant, and duly sworn,
was taken in the above-styled and numbered cause on the
4th of March, 2013 from 9:20 a. m. to 10:39 a. m., before
Amber Kirton, CSR, in and for the State of Texas, reported
by machine shorthand, at the law offices of Naman, Howell,
Smith & Lee, PLLC, 8310 Capital of Texas Highway, Suite
490, Austin, Texas, pursuant to the Texas Rules of Civil
Procedure and the provisions attached hereto.
^'^'^T
»t-. i--' .'
.
U. S. LEGAL SUPPORT - AUSTIN, TEXAS
(800) 734-4995
DONNIE LEE TITEL 3/4/2013
1 N D EX
2
3 Appearances
4 DONNIE LEE TI TEL
5 Examination by Mr. Velte 4
6 Signature and Changes 51
7 Reporter's Certificate 53
8 Further Certification 55
9
10 EXHIBIT
11 INDEX
12
13 NO. DESCRIPTION PAGE
14 A MapQuest 105 Ivy, 20
15 B MapQuest 105 Ivy, 20
16 C MapQuesfc 693 Pickett Lane 23
17 D MapQuest 693 Pickett Lane 23
18 E Titel Damages Summary 30
19
20
21
22
23
24
25
U. S. LEGAL SUPPORT - AUSTIN, TEXAS
(800) 734-4995
<^0
DONNIE LEE TITEL 3/4/2013
1 DONNIE LEE TITEL,
2 having been duly sworn testifies as follows;
3 EXAMINATION
4 BY MR. GOLDSMITH;
5 Q. Mr. Titel, please state your full legal name for
6 the court reporter.
7 A. Donnie Lee Titel.
8 Q. Mr. Titel, my name is Jim Goldsmith and I'ro an
9 attorney that's been retained by Jeremy David Melchor in a
10 lawsuit that you filed against him as a result of an
11 incident on July llth, 2011. Do you understand who I am
12 and who I represent?
13 A. Yes.
14 Q. And you understand that your purpose here today
15 is to offer sworn deposition testimony so that we can find
16 out what you might say in a trial if we were go to a trial
17 of this matter. Does that make sense?
18 A. Yes.
19 Q. One of the things that we need to take care of on
20 the outset is some ground rules on how, we're going to
21 speak to each other. And the reason we do that is because
22 the court reporter is typing down everything that I say
23 and everything that you say. And so if we can get some
24 ground rules on how we speak to each other it will make
25 her job a whole lot easier and we'll have a much clearer
U. S. LEGAL SUPPORT - AUSTIN, TEXAS
(800) 734-4995
b\
DONNIE LEE TITEL 3/4/2013
7
1 oath that you would take in a court of law in front of a
2 jury and a judge. Do you understand that?
3 A. Understood.
4 Q. So your obligation here as in court would be to
5 tell the whole truth to the best of your knowledge. Can
6 we agree on that?
7 A. Yes.
8 Q. And I want to be clear also, I'm not trying to
9 hide the ball, but if for some reason you were trying to
10 say X in answer to a question today and then in court
11 later after you've sworn the same oath you were to answer
12 Y, I'd be entitled to show the jury the transcript of
13 today's testimony and say, you know, you testified two
14 different ways under oath. And the reason I do that is to
15 imply that you might be being untruthful. Is that fair?
16 A. That's understood.
17 Q, Understood. May not be fair, but I want to be
18 clear on why we might do that. I don't want to hide the
19 ball for you. All right. Let's start with just a little
20 bit of background information for you. Your date of
21 birth?
22 A. May the 26, 1947.
23 Q. And for identification purposes the last four
24 numbers of your social security number?
25 A. 3465.
U. S. LEGAL SUPPORT - AUSTIN, TEXAS
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^
DONNTE LEE TITEL 3/4/2013
39
1 chicken coop - okay. The chicken coop, maybe that was a
2 later deal, but that was a loss and I didn't have to fix
3 the coop in the first month. But water and some things.
4 I actually - I made some purchases right away, which
5 then -- see, and right now the way this list stands you
6 said I've made modifications to, that's true because this
7 is things not covered by the i. nsurance now is the way it
8 finally kind of broke out.
9 Q. So these are things - I want to make clear.
10 This does not include the things that the insurance
11 company paid for?
12 A. Yeah. This is just - that's correct. This is
13 only the things they didn't pay for. But that was all
14 unclear back then. Because your question was about this
15 list. So I'TO trying to remember the way this came to be.
16 But it was handwritten, it was a Big Chief Tablet. It
17 evolved and there was yeses and nos, subtractions, adds
18 and drops. And then this whole subrogation thing came in,
19 which I didn't understand. It was at some point where I
20 said I need some help here and that's when I contacted Mr.
21 Velte and said I'm lost here, I don't know what's going
22 on, I need some help.
23 Q. Let's talk a little bit about the different types
24 of property that were at your Ivy location and what
25 damages they sustained. Let's start with buildings. You
U. S. LEGAL SUPPORT - AUSTIN, TEXAS
(800) 734-4995
^
N-t
NAMANHOWELL
SMTTH&LEE'1"
AHOKNIYS AT IAW 8310NCt»atElo(TBMiHwy
Suit* 00
Auitin. Texa»78731
IS1Z1479.83CO
ftX|5ia«74-iaB1
September27, 2013 Office* in:
. Autlin
ViaE-PUing a FortWorth
a Sin Antonio
. Waco
Ms. DanaDeBeauvoir
Travis CountyCourthouse www. ftein»nh»w»ll s'vi
1000 Guadalupe, Room 21 1
Austin, Texas 78701
RE: Cause No. C. l-CV-12-008224; Don Titel and Carol
Titel vs. Jeremy David Melchor; In Ac County
Court at LawNo. 2 ofTravis County, Texas
Finn FUeNo. 34725. 500
DearMs. DeBeauvoir:
Please find enclosed a Motion for Suacwry Judgmcmt filed on behalfof Defendants
Jeremy David Melchor, Morris 0. Melchor and Lisa Melchor. A Notice of Hearing is
incorporated witfain the Motion, and reflects Ifaat this Motion is set for hearing on Tuesday,
October29, 2013at 9tW S.B*.
Pursuant to the Texas Rules ofCivil Procedure, a copy ofthe Motion hasbeen forwanJed
to all partiesandcounsel ofrecord onthis date.
Thankyou for your assistancein thismatter.
Verytruly yours,
NAM^ HOWELL,SMITH& LEE,PLLC
JWO/jwg
Enclosure
(02569857. DOCX/)