Stacey Scott v. Larry Furrow and Keller Williams Legacy Group

ACCEPTED
04-15-00074-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/1/2015 5:28:25 PM
KEITH HOTTLE
CLERK

CAUSE NO. 04-15-00074-CV

FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FOURTHSAN
COURT
ANTONIO, TEXAS
OF APPEALS DISTRICT OF TEXAS, SAN ANTONIO, TEXAS
12/01/15 5:28:25 PM
KEITH E. HOTTLE
Clerk

STACEY SCOTT,
Appellant

vs.

LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP,
Appellees

ON APPEAL FROM THE 25™ JUDICIAL
DISTRICT COURT OF GUADALUPE COUNTY, TEXAS
CAUSE NO. 13-1125-CV-A

BRIEF OF APPELLEES

THORNTON, BIECHLIN, REYNOLDS
& GUERRA, L.C.
Vaughan E. Waters
State Bar No. 20916700
100 N.E. Loop 410, Suite 500
San Antonio, Texas 78216
210-342-5555; 210-525-0666 (fax)
ATTORNEYS FOR APPELLEES

ORAL ARGUMENT REQUESTED
 NAMES OF THE PARTIES

Pursuant to and in compliance with Rule 38, Tex. R. App. P., the parties to this
appeal are:

STACEY SCOTT, Appellant

COUNSEL FOR APPELLANT: ANDREWS KURTH LLP
Mr. Frederick Junkin
State Bar No. 11058030
600 Travis St., Suite 4200
Houston, TX 77002
713/220-4766; 713/238-7387 (fax)
frediunkm(%andrewskurth.com

LARRY FURROW AND KELLER
WILLIAMS LEGACY GROUP, Appellees

COUNSEL FORAPPELLEES: THORNTON, BIECHLIN, REYNOLDS &
GUERRA, L.C.
Mr. Vaughan E. Waters
State Bar No. 20916700
100 N.E. Loop 410, Suite 500
San Antonio, Texas 78216
210/342-5555; 210/525-0666 (fax)
vwaters(2)thomtonfirm. corn

TRIAL COURT JUDGE: The Honorable W.C. Kirkendall
25th Judicial District Court
Guadalupe County, Texas

(i)
 REQUEST FOR ORAL ARGUMENT

Pursuant to Rule 39, Tex. R. App. P., Appellees respectfully request oral
argument in this case.

(ii)
 TABLE OF CONTENTS

Page

NAMES OF THE PARTIES ......................................... (i)

REQUEST FOR ORAL ARGUMENT ................................ (ii)

TABLE OF CONTENTS .......................................... (iii)

LIST OF AUTHORITIES .......................................... (iv)

I. STATEMENT OF THE CASE ................................... 2

II. ISSUES PRESENTED ................................. ...... 2

(1) ISSUE NO. 1: THE TRIAL COURT ACTED
CORRECTLY IN GRANTING SUMMARY
JUDGMENTFORAPPELLEES ONTHE CLAIMS
AND CAUSES OF ACTION ASSERTED BY
SCOTT (Responsive to Appellant's Issue Nos. 1 and
2)
(2) ISSUE NO. 2: SCOTT RA.S FAILED TO
PRESERVE ERROR AS TO THE TRIAL
COURT'S GRANT OF SUMMARY JUDGMENT
IN FAVOR OF APPELLEES ON THEIR
COUNTERCLAIM FOR ATTORNEY'S FEES
(Responsive to Appellant's Issue Nos. 3 and 4)

III. STATEMENT OF FACTS ...................................... 3

IV. SUMMARY OF THE ARGUMENT ............................. 15

V. ARGUMENT AND AUTHORITIES ............................. 16

PRAYER ........................................................ 36

(ill)
CERTIFICATE OF COMPLIANCE ................................... 37

CERTIFICATE OF SERVICE ....................................... 37

(iv)
 LIST OF AUTHORITIES

CASES PAGE

Cantu v. Preacher, 53 S.W.3d 5 (Tex. App.-San Antonio 2001,
pet. denied) ...................................................... 29

Estate ofJobe v. Berry, 428 S.W.3d 888, 902
(Tex. App.-Texarkana 2014, no pet.) .................................. 26

Exxon Mobil Chemical Company v. Ford, 187 S.W.3d 154
(Tex. App.-Beaumont 2006), reversed in part on other grounds,
235 S.W.3d 615 (Tex. 2007) ........................................ 20

Farroux v. Denny's Restaurants, Inc.,
962 S.W.2d 108 (Tex. App.-Houston [1st Dist.] 1997, no pet.) .............. 12

Ford v. Exxon Mobil Chemical Company, 235 S.W.Sd 615, 616
(Tex.2007) ...................................................... 23

HECI Exploration Company v. Neel, 982 S.W.2d 881, 887 (Tex. 1998). ..... 20

Isaacs v. Schleier, 356 S.W.3d 548,562
(Tex. App.-Texarkana 2011, pet. denied) ............................... 26

Lesieur v. Fryar, 325 S.W.3d 242 (Tex. App.-San Antonio
2010,pet. denied) ................................................. 34

Marker v. Garcia, 185 S.W.3d21
(Tex. App.-San Antonio 2005, no pet.)................................. 34

NRC, Inc. v. Pickhardt, 667 S.W.2d 292 (Tex. App.-Texarkana
1984, writ refd n.r.e.) .............................................. 18

Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) ..................... 17

Salinas v. Gary Pools, Inc., 31 S.W.3d 333

(V)
(Tex. App.-San Antonio 2000, no pet.)................................. 24

Santiago v. NovaStar Mortgage, Inc., 443 S.W.Sd 462, 471
(Tex. App.-Dallas 2014, pet. denied) .................................. 20

Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 320-321 (1941) .......... 22

Southwest Olshan Foundation Repair Company, LLC v. Gonzalez,
345 S.W.3d 431, 437 (Tex. App.-San Antonio 2011),
aff'd, 400 S.W.Sd 52 (Tex. 2013) ..................................... 26

Trousdale v. Henry, 261 S.W.Sd 221, 234 (Tex. App.-Houston [14th Dist]
2008,pet. denied) ................................................. 26

Watts v. Oliver, 396 S.W.Sd 124,135
(Tex. App.-Houston [14th Dist] 2013, no pet.) ........................... 35

Westland Oil Development Corporation v. Gulf Oil Corporation,
637 S.W.2d 903 (Tex. 1982) ......................................... 18

STATUTES. RULES. AND OTHER AUTHORITIES

Tex. Civ. Prac. & Rem. Code §§16.003, 16.004 .......................... 27

Tex. R. App. P.9 .................................................. 37

Tex. R. App. P., Rule 33............................................. 15

Tex. R. App. P.38 ................................................. (i)

Tex. R. App. P.39 ................................................ (ii)

Tex. R. App. P, Rule 44.4(a). ........................................ 35

Tex. Bus. & Comm. Code §17.50. .................................... 34

Tex. Bus. & Comm. Code §17.565. ................................... 26

(vi)
 CAUSE NO. 04-15-00074-CV

IN THE COURT OF APPEALS FOR THE FOURTH COURT
OF APPEALS DISTRICT OF TEXAS, SAN ANTONIO, TEXAS

STACEY SCOTT,
Appellant

vs.

LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP,
Appellees

ON APPEAL FROM THE 25™ JUDICIAL
DISTRICT COURT OF GUADALUPE COUNTY, TEXAS
CAUSE NO. 13-1125-CV-A

BMEF OF APPELLEES

TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS OF
THE STATE OF TEXAS, SAN ANTONIO, TEXAS:

NOW COME LARRY FURROW AND KELLER WILLIAMS LEGACY

GROUP, Appellees in the above entitled and numbered cause, and file this their Brief

ofAppellees, pursuant to and in accordance with Rule 38.2, Tex. R. App. P.; and in

support thereof would respectfully show this Honorable Court as follows:
 I.

STATEMENT OF THE CASE

This is an appeal from a summary judgment entered November 13,2014 in the

25 Judicial District Court ofGuadalupe County, Texas, the Hon. W.C. Kirkendall

presiding, in favor ofAppellees LARRY FURROW ("FURROW") and KELLER

WILLIAMS LEGACY GROUP ("KELLER WILLIAMS") and against Appellant

STACEY SCOTT ("SCOTT"). Pursuant to this judgment the claims and causes of

action of SCOTT against FURROW and KELLER WILLIAMS were severed from

her claims and causes of action against other individuals (not parties to this appeal),

and later made final by the trial court's judgment of February 24, 2015 awarding

attorney's fees and costs in favor ofAppellees. Supp. C.R. (04/29/2015), at 2-5, 38-

40.

II.

ISSUES PRESENTED

ISSUE NO. 1: THE TRIAL COURT ACTED
CORRECTLY IN GRANTING SUMMARY JUDGMENT
FORAPPELLEES ON THE CLAIMS AND CAUSES OF
ACTION ASSERTED BY SCOTT (Responsive to
Appellant's Issue Nos. 1 and 2)

ISSUE NO. 2: THE TmAL COURT ACTED
CORRECTLY IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF APPELLANTS ON THEIR
COUNTERCLAIM FOR ATTORNEY'S FEES
(Responsive to Appellant's Issue Nos. 3 and 4)
 III.

STATEMENT OF FACTS

This a tale of three lots located on the Guadalupe River. They are referred to

in SCOTT'S pleadings and in her Appellant's Brief as "Lots 1, 2 and 3", and for

convenience will be referred to likewise here. Lot 2—also known as 1104 Peggy

Lane, Seguin, Texas—was and is an improved residential lot purchased by SCOTT

from Juanita Denn and D.R. Ban- (Defendants in the underlying case but not parties

to this appeal). SCOTT—then a litigation paralegal of more than fifteen years'

experience—and the sellers entered into an earnest money contract on April 22,2006

to purchase Lot 2, and the sale closed on May 22, 2006. Appellant's Brief, at 4; II

Supp. C.R, Vol. 1,at 18-19. FURROW and KELLER WILLIAMS were the realtor

and brokerage involved in this transaction, and FURROW was the listing agent. Id.

FURROW showed Lot 2 to SCOTT before she entered into the earnest money

contract. When she viewed Lot 2 she observed that it did not abut the actual

riverbank; as she testified in her deposition:

Q [by Mr. Cline]: You knew that that house did not sit on the banks of
the Guadalupe River, that there was other properties between that house
and the river?

A [by Ms. Scott]: That is correct.

II Supp. C.R., Vol. 2, at 222. Although SCOTT does not remember the-exact words

FURROW used, she had an understanding that the purchase of Lot 2 was tied to an

interest in a waterfront access property—Lot 1—which FURROW showed her as part

of the property tour. Id. As SCOTT explained it in her deposition taken January 15,

2014:
 Q [by Mr. Cline]: Alright. Did you think you were buying that other lot
[Lot 1] in its entirety or did he explain that it's—people that have lots
in this vicinity have access through that particular lot?

A [by Ms. Scott]: I was—no, he explained that there—by purchasing
1104 Peggy Lane, I would be purchasing a legal interest in that
waterfront access lot [Lot 1].

Q: Right. Shared with others?

A: I don't know.

II Supp. C.R., Vol. 2, at 224. More particularly:

Q: You thought that you had the—the exclusive access to that
waterfront area?

A: I didn't at the time know who all had access to the lot.

Q: Did you think when you bought the property that you had exclusive
access to the waterfront lot?

A: I don't believe I ever thought I had exclusive access to the lot. I
believe I had a legal right to the lot, a legal interest and I believed that 's
what I was purchasing.

II Supp. C.R., Vol. 2, at 225 (emphasis added). And when asked, "And so 1104

Peggy Lane does provide waterfront access"? SCOTT testified: "Yes." II Supp.

C.R., Vol. 2, at 229.

SCOTT punctuated the point once more, later in her deposition:

Q: All right. Well, you're not claiming that Mr. Furrow told you had
exclusive access to that waterfront lot, are you?

A: I don't recall what specifically was said in terms of exclusivity of the
property. I just know that It was sold as a legjil right to—as waterfront
access to—in conjunction with buying 1104 Peggy Lane.

II Supp. C.R., Vol. 2, at 230 (emphasis added).

One year later, in May 2007, SCOTT purchased the adjoining vacant lot

located at 1110 Peggy Lane, Seguin, Texas (Lot 3); she alleges in her First Amended
Petition that, based on what was represented to her by the owners of that lot (Juanita

Denn and D.R. Ban", likewise the owners/sellers of Lot 2) and by FURROW the

previous year, she was "solidifying" her "exclusive" ownership rights to Lot 1, the

waterfront access property. II Supp. C.R., Vol. 1, at 18-19. FURROW and KELLER

WILLIAMS were not involved in any way with SCOTT's purchase of Lot 3. II Supp.

C.R, Vol. 2, at 221,236.

On March 23, 2011 SCOTT believed an issue had arisen with respect to the

access of Lots 2 and 3 to the Guadalupe River. She inquired by e-mail of attorney

Robert Ritter (again, a Defendant in the underlying proceeding but not a party to this

appeal); as she put it, "I e-mailed Robert Ritter and inquired about the discrepancy

between the vacant lot waterfront ownership to the access property and 1104 Peggy

Lane." II Supp. C.R., Vol. 2, at 232. That e-mail was never responded to. Id. She

does not recall what prompted her to send the e-mail, but it had something to do with

the vacant lot, Lot 3. Id. As she testified, she "[q]uestioned [her] ownership rights

to the water access lot in conjunction with 1110 Peggy Lane [Lot 3]." II Supp. C.R.,

Vol. 2, at 238. More particularly:

Q: That's when you first thought, "Maybe I don't have waterfront access
rights"?

A: Yeah, that's when I first questioned whether or not I did and tried to
inquire.

Q: And that's when you kind of began this—trying to discover "what do
I have or not have"?

A: Correct...

II Supp. C.R, Vol. 2, at 251-252.
 SCOTT describedher claim against FURROW, KELLER WILLIAMS, and the

other underlying Defendants regarding waterfront access as follows:

Q [by Mr. Cline]: In other words, you're not trying to tell the jury, "I
thought the home at 1104 was on the waterfront and it's not"? You're
telling the jury, "I thought I had access to this lot, the one that I've
drawn in on the waterfront, and I don't"?

A [by Ms. Scott]: Well, I think the problem lies in the use of the term
"waterfront." I mean, yes, I'm a litigation paralegal of 24 years, but I'm
not—I left Texas when I was 16,17 years old. So I'm not familiar with,
you know, the terms that are used here. And I've seen other attorneys
use the term "waterfront" loosely in conjunction with the same
properties. So if there's—

Q: All right. Let me see if we can divide it up. I'm just trying to make
sure we understand each other. Just considering the home, 1104—Vm
not talking about the waterfront access. All right. You're not claiming,
"I thought this home at 1104 was on the waterfront and it's not"? That's
not your claim; correct?

A: My claim is that I was sold something that doesn't exist.

MR. JEMELA: Objection, non-responsive.

MR. McNEIL: Same objection.

Q [by Mr. Cline]: Yeah. I'm still—what are you saying doesn't exist?

A [by M;s. Scott]: I'm saying that the picture that is associated with this
advertisement and what was sold as apart of 1104 Peggy Lane—-and
I'm referring to Exhibit A-2 of my petition—the ownership rights don't
exist as were sold to me.

Q: Okay. Your contention is 1104 Peggy Lane does not have access to
that neighborhood park or that waterfront lot or whatever you want to
call it?

A: Correct. It's neither waterfront nor waterfront access.

II Supp. C.R, Vol. 2, at 243-244.

SCOTT was questioned very specifically on this point so as to nail down the

nature of her claim:
Q [by Mr. Clinej: If it turns out that 1104, in fact, does enjoy the right
to use that waterfront lot, would you still have any claim or any—any
claim against Mr. Furrow? Would you feel like there was a problem
with your purchase from him?

A [by Ms. Scott]: I would still have a claim, yes.

Q: What would it be?

A: I haven't assessed it fully.

Q: Okay. As we sit—in other words, let' s assume hypothetically that we
go to court this afternoon and the judge in Seguin says, "I have looked
at the deed records and I've looked at the plats and I've looked at the
restrictions, and the waterfront lots and boat ramps may be accessed by
the owner of 1104 Peggy Lane. 1104 Peggy Lane does, in fact, enjoy
waterfront access rights." If the court said that, what would your
complaint against Mr. Furrow be?

A: Assuming that someone produced a dedication deed?

A: Assuming that a court—whether it's a dedication deed or what,
assuming that a judge today says, "No, I decree and declare the owner
of 1104 Peggy Lane has the rights to waterfront access on these two
lots"—

A: The legal ownership rights.

Q: Yes. Yes. Assuming that, what would your complaint against Mr.
Furrow be?

A: I haven't—I mean, if you're asking me to assess what my damages
are right here and now—

Q: No, no,no,not your damages.

A: Well, if I had a claim against Larry Furrow today, right here, right
now—
Q: Yes.

A: —you're asking me to assess the value?

Q: No, I'm not.

A: You're asking me if I have a claim?
 Q: What I'm saying is—you understand my hypothetical? That a judge
says West and West is wrong, 1104 does enjoy access to the waterfront
through the two lots that you drew in on number 4. Now, that would be
what Mr. Furrow told you he was selling you, righfl

A: The legal right to waterfront access?

Q: Yes.

A: Yes.

Q: Okay. So let's assume hypothetically that that's what happens. So
then wliat, then, would your complaint against Mr. Furrow be? What
would you say he did to harm you or damage you? I'm not asking an
amount. I'm asking what would the claim be?

A: I'm not prepared to assess my claim or what my claim would be right
here right—

Q: Well, I want you to give your best effort right now to say, "Well,
assuming he sold me what he said he was going to sold me, he still
harmed me by," and you fill in the blank. Tell me what it is as best you
can.

A: I wouldn't be prepared to do that right now as best I can. I mean, that
would take time and consideration to determine what-

Q: So you can't tell me?

A: Right at this point in time, no, I can't.

Q: Because isn't that your complaint against—I mean, that's the only
complaint you have against Mr. Furrow as we sit here today, right? "He
sold me this property and he said I had waterfront access rights and I
don't." Isn't that your complaint against Mr. Furrow?

A: Yes.

Q: I mean, that's your only complaint against Mr. Furrow, right?

A: Yes.

II Supp. C.R., Vol. 2, at 248-251 (emphasis added).

SCOTT testified farther regarding this complaint by analogizing 1104 Peggy

Lane to her other property, 634 Ashmore Avenue in New Braunfels: "Both—my

8
property at 634 Ashmore Avenue is also—it's not waterfront, but it's water access.

It's literally identical, an identical situation and I closed escrow on Ashmore two

•weeks prior to closing escrow on Peggy Lane." II Supp. C.R., Vol. 2, at 240

(emphasis added). Further in that regard:

Q [by Mr. Cline]: In other words, Ashmore is a home that sits off away
from the river, but it has access to a lot that's on the river?

A [by Ms. Scott]: Two lots, correct, lot A and lot B. 64 (sic) Ashmore
Avenue in New Braunfels is situated in the Guada Coma neighborhood
in the historic district of New Braunfels. And it has private water access
to two lots to both the Comal River and the Guadalupe River.

Q: Right. And that's not exclusive access, is it?

A: It's exclusive to Guada Coma neighborhood.

Q: Right. Okay.

A: Which is what, I believe, was similar to what Larry was advertising.
And to be clear, when I closed on the 634 Ashmore property, it's
not—there's no mention in the deed or anything on the actual house that
references the access lots, but there's a dedication deed that exists. And
already haying that knowledge, when I closed escrow on 1104 Peggy
Lane and dealt with Larry Furrow, I mirrored exactly my situation with
Ashmore. So I was comfortable with that.

Q: And you had done Ashmore before that?

A: Two weeks before.

II Supp. C.R., Vol. 2, at 240-241 (emphasis added).

Mr. Cline then directed SCOTT' s attention in her deposition to a certified copy

of the Guadalupe County Deed Records authorizing the filing of the plat of A.J.

Grebey Subdivision No. 1. H Supp. C.R., Vol. 2, at 261; H Supp. C.R., Vol. 1, at

197-198. SCOTT conceded that Lot 1 "is a park for the purpose of granting the lot

owners [of the subdivision] access to Lake McQueeney." II Supp. C.R., Vol. 2, at

264. Further:
 Q [by Mr. Cline]: Exhibit 8, do you see, is a certified copy of the plat of
the A.J. Grebey Subdivision No. 1 and we see Lot 2 would be 1104
Peggy Lane; right?

A [by Ms. Scott]: Yes.

Q: And then Lot 1 would be the waterfront access lot-

A: It would be.

Q: —that Mr. Furrow told you had access to if you bought Lot 2; right?

A: A legal to, an ownership right.

Id.

Subsequent to her deposition, on March 4, 2014 SCOTT filed her First

Amended Petition. II Supp. C.R., Vol. 1, at 14. Although she had testified clearly,

expressly and unequivocally that her complaint against FURROW and KELLER

WILLIAMS was that she had been "sold something that doesn't exist"—that is, that

Lot 2 was "neither waterfront nor waterfront access"—and that what FURROW had

told her was being sold was "the legal right to waterfront access", she attempted to

change her theory of the case. The gravamen of her complaint went from "he sold me

this property and he said I had waterfront access rights and I don't" to "he sold me

this property and he said I had exclusive waterfront access rights and I

don't"—although, again, her sworn testimony had been that when she closed on Lot

2 she had not expected to receive, and did not believe she was receiving, exclusive

waterfront access rights. II Supp. C.R., Vol. 2, at 251; II Supp. C.R., Vol. 1, at 19.

On May 6, 2014 FURROW and KELLER WILLIAMS moved for summary

judgment. II Supp. C.R.,Vol. 1, at 177. While several grounds of summary judgment

were alleged, chief among these was that "[a]ll of Plaintiff s claims are barred by the

statute of limitations." II Supp. C.R., Vol. 1, at 182.

10
 In particular, FURROW and KELLER WILLIAMS pointed out that the

documents that would provide the information concerning the nature and extent of

SCOTT'S legal rights in Lot 2 (the only lot as to which she asserts claims against

these parties) were of public record at the time of closing in the Guadalupe County

real property records. In addition, SCOTT'S March 23, 2011 e-mail to attorney

Robert Ritter—sent two years and two months prior to her filing of the instant

lawsuit—expressly raised the issue of -whether and to what extent she had been

granted the •waterfront access she was led to believe she was acquiring in the

purchase of Lots 2 and 3. Id.

SCOTT, in her response filed October 15,2014, urged that her claims are saved

by the discovery mle:

Under the "discovery rule", Plaintiffs claims were precipitated against
Defendants when she received an e-mail from attorney for Defendant,
Juanita Denn and Patrick Denn (Mr. West), on April 17, 2013, who
stated as follows: " We have checked with our client and there is no
documentation, at least recorded that we know, that shows the right to
the gated waterfront park." (See Plaintiffs depo. 55:11-23).

II Supp. C.R, Vol. 2, at 10-11.

In addition to the limitations ground, FURROW and KELLER WILLIAMS set

forth the ground that the summary judgment evidence conclusively establishes—by

SCOTT'S own deposition testimony—the absence of the gravamen of her claims and

causes of action, as follows:

19. In addition to the limitations issues, Plaintiff has contradicted her
claims of DTPA violations, negligent misrepresentation, iraud,
and fraud by non-disclosure regarding the Waterfront Park, by her
own deposition testimony where she admitted that she was led to
believe" by Larry Furrow that her access to the Waterfront Park
was shared with her neighbors, which is what she has. See
Exhibit 9, Deposition Testimony ofStacy Scott, P. 26, L. 11 - P.

11
 27, L. 17. See also, Deposition Testimony ofStacy Scott page 42,
line 5 -page 43, line 9, hereinafter referred to as Exhibit 11.

II Supp. C.R., Vol. 1, at 182. (Under the sham affidavit doctrine, a party may not

submit an affidavit in support of or in opposition to a summary judgment motion

which contradicts that party's previous sworn deposition testimony, absent a clear

explanation within the affidavit for any such discrepancy. Farroux v. Denny's

Restaurants, Inc., 962 S.W.2d 108 (Tex. App.-Houston [lstDist] 1997, no pet.)).

SCOTT'S "Supplemental Supportive Affidavit" to her summary judgment

response, filed October 20, 2014, squarely contradicts her earlier deposition

testimony. In that regard, SCOTT states in the affidavit that

[i]n 2006,1 purchased Lot 2 and what I believed was a one-half interest
in Lot 1 (the waterfront/water access lot associated with the property I
was purchasing). At the suggestion of [FURROW and KELLER
WILLIAMS] (sellers' listing agent), one year later (in 2007), I
purchased Lot 3 (the adjoining vacant lot to Lot 2) directly from [Ms.
Denn and Mr. Barr] ("sellers"), so as to acquire exclusive ownership of
the waterfront/water access property.

II Supp. C.R., Vol. 2, at 491 (emphasis added).

On November 3, 2014 Judge Kirkendall, presiding judge of the 25 Judicial

District Court of Guadalupe County, Texas, issued his letter ruling which was

incorporated into his interlocutory summary judgment dated November 13, 2014.

Supp. C.R. (04/29/15), at 2-5. By this order Judge Kirkendall granted the traditional

summary judgment motion of FURROW and KELLER WILLIAMS (without

specifically stating the grounds on which it was being granted), while denying the no-

evidence summary judgment motion. This order further severed the claims and

causes of action brought by SCOTT against FURROW and KELLER WILLIAMS,

placing them under a separate cause number, thus preserving the counterclaim of

12
FURROW and KELLER WILLIAMS against SCOTT for attorney's fees for a later

proceeding. Id.

Subsequently, on January 23, 2015, FURROW and KELLER WILLIAMS

moved for summary judgment on their counterclaim against SCOTT for attorney's

fees. II Supp. C.R, Vol. 1, at 169-177; Supp. C.R. (04/29/15), at 8-37. FURROW

and KELLER WILLIAMS urged that they were entitled to attorney's fees on either

of two alternative grounds: first, that they were the prevailing parties in a claim

arising from the earnest money contract between SCOTT and the sellers of Lot 2,

such that under the terms of the contract itself, particularly of para. 17 thereof, they

are entitled to recover their reasonable and necessary attorney's fees incurred in

defending against SCOTT'S claim; and second, that SCOTT'S actions—brought in

part under the DTPA—are groundless in law and in fact, and brought in bad faith for

the purpose of harassment within the meaning ofTex. Bus. & Comm. Code §17.50,

thus entitling them to attorney's fees. Id.

On February 24, 2015 SCOTT filed her delinquent response to the summary

judgment motion. Supp. C.R., at 4-63. The only issues raised in avoidance of

summary judgment on the attorney's fees counterclaim were that "Defendants' billing

summary for their attorney's fees does not distinguish what fees were expended for

the issue [of statute of limitations] on which they prevailed" (Supp. C.R., at 6), and

(b) that "Defendants are attempting to take a second bite at the apple by pleading

issues and evidence, which have already been fully adjudicated" (Supp. C.R., at 7)

(an argument to the effect that the November 13, 2014 interlocutory summary

judgment order was in fact a final judgment).

13
 The trial court entered its final judgment in the severed cause on February 24,

2015, reincorporating the earlier interlocutory summary judgment order, granting the

summary judgment motion of FURROW and KELLER WILLIAMS on their

attorney's fees counterclaim, and awarding attorney's fees for trial and appeal in the

sum of $95,179.00. Supp. C.R. (04/29/15), at 38-40.

Meanwhile, on December 12, 2014, SCOTT had filed her "Motion for New

Trial on Final Judgment As To Defendant Keller Williams Legacy Group and Larry

Furrow's Summary Judgment." C.R., at 61 1-642. This new trial motion, however,

addressed only the interlocutory summary judgment order on her own claims and

causes of action (erroneously characterizing same as a "final judgment"), and did not

address the issues raised in the counterclaim on attorney's fees or the grounds of

summary judgment thereon. Id.

On March 26, 2015 SCOTT filed her new trial motion on the attorney's fees

counterclaim. Supp. C.R., at 41-123. The sole issue raised in support of the motion

was to the effect that SCOTT was entitled to a new trial "in the interest of justice and

fairness because Defendants [FURROW and KELLER WILLIAMS] withheld key

evidence, which they used against her in their motion for summary judgment." Supp.

C.R, at 41. This related to an issue of whether FURROW and KELLER WILLIAMS

had properly produced invoices for attorney's fees and written discovery. Id. No

other issue was raised. This motion was overruled by order dated May 7,2015. App.

I.

This appeal ensues.

14
 IV.

SUMMARY OF THE ARGUMENT
It is undisputed—indeed, SCOTT freely concedes—that SCOTT filed the

instant lawsuit (1) seven years to the month after she acquired title to Lot 2 by a deed

which conveyed only Lot 2 and the rights associated therewith, (2) six years to the

month after she acquired Lot 3 by a deed which conveyed only Lot 3 and the rights

associated therewith (and in which transaction and conveyance neither FURROW nor

KELLER WILLIAMS played any part whatsoever), and (3) asserting claims which

all revolve around the theory that she acquired in both these conveyances what she

testified clearly, expressly, unequivocally and under oath in her deposition was

precisely the form of waterfront access to which she felt she was entitled by the

representations of FURROW and KELLER WILLIAMS, and which she expected to

receive. Summary judgment was properly granted on all claims and causes of action

asserted by SCOTT against FURROW and KELLER WILLIAMS.

As to the latters' counterclaim against SCOTT for attorney's fees, and the trial

court's grant of summary judgment on that counterclaim, SCOTT has utterly failed

to preserve error in accordance -with Rule 33, Tex. R. App. P. as to any complaint

•whatsoever about that summaiy judgment — and the facial speciousness of SCOTT'S

arguments both at the trial court and in this appeal demonstrate eloquently the

fhvolousness and bad faith of her having asserted the underlying claims in the first

instance.

The summary judgments granted by the trial court and incorporated into the

final judgment rendered hereinbelow are correct and complete, and should be

affirmed.

15
 V.

ARGUMENT AND AUTHORITIES

ISSUE NO. 1 RESTATED: THE TMAL COURT ACTED
CORRECTLY IN GRANTING SUMMARY JUDGMENT
FOR APPELLEES ON THE CLAIMS AND CAUSES OF
ACTION ASSERTED BY SCOTT (Responsive to
Appellant's Issue Nos. 1 and 2)

A. The claims and causes of action alleged against FURROW and KELLER
WILLIAMS are conclusively barred by the two-year andfour-year statutes of
limitations

Judge Kirkendall, in his initial letter ruling on the interlocutory summary

judgment motion, explained his reasoning as follows:

There appears to be no dispute that suit was filed outside the applicable
statutes of limitation for each cause of action. The question before the
Court is whether any "discovery rule" or "fraudulent concealment" have
tolled the running of the statutes.

It is clear that the law in Texas is that fraud prevents the running of the
statute of limitations until it is discovered or by the exercise of
reasonable diligence it might have been discovered. Ruebeck v. Hunt
176SW2d738(Tex. 1943).

However when a person has a right in property, and she claims
fraudulent statements are made concerning title to the property, when
the public records are open to her, she must exercise reasonable
diligence to discover the defect. Exxon Mobil v. Ford, 187 SW3d 154
(Court of Appeals: Beaumont, 2006).

Information contained in public records can be ascertained through
reasonable diligence and is not inherently undiscoverable. Thus a
person must exercise reasonable diligence, and if he could have

16
 discovered a defect, she is held to have known it, and limitations will
run against her. Swanson v. Stouffer & Assocs., 2014 WL 2522145
(Court of Appeals: Austin 2014).

Although it is not precisely clear what plaintiff is claiming (either
exclusive ornon-exclusive access to the waterfront), there is no question
the precise nature of her title could have been ascertained from public
record. Since she did not discover the defect, if any, she did not exercise
due diligence. Therefore the applicable statutes of limitations are not
tolled, and suit on her causes of action is banned.

The defendants' traditional motion for summary judgment is GRANTED
in all things.

Supp. C.R. (04/29/2015), at 4-5.

SCOTT, in her Appellant's Brief, complains that this analysis is "contrary to

long-standing precedent"—citing, inter alia, to the Texas Supreme Court's opinion

in Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988). In fact and in law it is

SCOTT'S position which is "contrary to long-standing precedent", and it is SCOTT

who misunderstands and misapplies the cases on which she purports to rely.

In Ojeda de Toca the plaintiff purchased a house from the defendants, only to

have the house demolished sometime after the purchase by the City of Houston

pursuant to an order which had been filed previously in the Harris County deed

records. The plaintiff filed suit against the seller and others, alleging violations of the

DTPA, fraud in a real estate transaction, and negligence. The jury found, and the trial

court rendered judgment, that the seller knew but failed to disclose that the property

17
was subject to the demolition order. The court of appeals reversed, concluding that

recordation of the demolition order provided constructive notice and constituted a

defense as a matter of law to the DTPA and fraud claims. Ojeda de Toca, at 450.

The Texas Supreme Court reversed the court of appeals, holding that record

notice will not in all situations operate as a defense to a DTPA cause of action. In

arriving at its conclusion the Court expressly distinguished two cases cited by the

defendants—Westland Oil Development Corporation v. Gulf Oil Corporation, 637

S.W.2d 903 (Tex. 1982) andNRC, Inc. v. Pickhardt, 667 S.W.2d 292 (Tex. App.-

Texarkana 1984, writ refd n.r.e.)—in that those cases were, respectively, "a title

dispute" and "a statute of limitations defense." Id., at 451. The instant case is both.

Ojeda de Toca has nothing to say about a situation in which the plaintiff complains

first of having been sold a piece of property without waterfront access, and

then—upon discovering in the course of her own deposition that yes, the property

does indeed have waterfront access—changes her complaint to one that she was sold

the full ownership interest in one particular lot, when she thought she was being sold

thatplus a one-half undivided interest in another particular lot (this even though the

deed by which she acquired the property makes no reference whatsoever to a one-half

undivided interest in anything).

18
 Ojeda de Toca is inapposite not only because it dealt with issues other than

title, but because it dealt with the existence or non-existence of a cause of action — not

with the effect of the statute of limitations on that cause of action. In NRC, supra — a

limitations case—the Texarkana Court of Appeals observed that "[a] purchaser of

land has constructive notice of all information contained in his grantor' s chain of title,

and he is bound by every recital, reference and reservation contained in or fairly

disclosed by any instrument which forms an essential link in that chain [citing, inter

alia, WestlandOil, supra}." NRC, at 294. Thus the court concluded that limitations

barred the purchaser's cause of action for failure to disclose the existence of a Lower

Colorado River Authority easement, as affecting his marketable title, since he was

charged with actual notice of the easement. NRC, at 294. The court further observed,

however, that "[n] one of the brochures or any other information furnished by NRC

or reasonably available to Pickhardt indicated that his lots were below the 715-foot

line, and it is conceded that such fact could only have been determined by a

topographical survey." Id., at 293. The court pointed out that a seller has a duty to

disclose material facts affecting the suitability of the property for its intended use

which would not be discoverable by the exercise of ordinary diligence on the part of

the purchaser, and that where there is "such a failure to disclose, the statute of

19
limitations begins to run when the fraud is discovered or should have been discovered

by the exercise of reasonable diligence." Id., at 294.

So it is in the instant case: SCOTT'S claims relate to the state of title to Lot 2

as it concerns waterfront access rights and the extent of her ownership ofwaterfront

access rights—matters which can be determined quite simply by a review of her title

deed and of the matters of record referenced in that deed. No topographical survey

would have been needed. Indeed, even when a party does not have constructive

notice of matters filed in the public record, "a cause of action for failure to provide

that information is not inherently undiscoverable" for purposes of triggering

limitations. Santiago v. NovaStar Mortgage, Inc., 443 S.W.Sd 462,471 (Tex. App.-

Dallas 2014, pet. denied) (quoting HECI Exploration Company v. Neel, 982 S.W.2d

881, 887 (Tex. 1998)).

Exxon Mobil Chemical Company v. Ford, 187 S.W.3d 154 (Tex. App.-

Beaumont 2006), reversed in part on other grounds, 235 S.W.Sd 615 (Tex.

2007)—cited by Judge Kirkendall in his letter ruling—is very much on point. In that

case Exxon Mobil's predecessor-in-title purchased a pipeline easement in 1998 from

Ford's predecessor-in-title. A map showing the path of the proposed pipeline passing

through the Antwine Mart survey ("the Mart"), the Munsen Bowes survey ("the

Bowes"), and the Elias Stone survey ("the Stone") was attached to the agreement and

20
filed in the property records of Jefferson County, but the easement agreement itself

did not incorporate the map by reference or otherwise referred to it; the text of the

easement agreement did not mention the Stone. Exxon Mobil, at 156. Later that

same year the two parties executed an easement amendment dealing with operational

workspace; unlike the original easement agreement, however, the amendment did

refer specifically to the Stone as well as to the Bowes and the Mort, reciting further

that "all other terms and conditions of the above easement shall remain in force and

effect." Ford subsequently purchased the Stone, the Mart, and the Bowes, among

other tracts, by special warranty deed which recited that the conveyance was subject

to the earlier recorded easement. Later still, in February 1 999, Ford and Exxon Mobil

executed another easement amendment, providing for a relocation of the proposed

pipeline route, attaching a map thereof, and again referencing the original pipeline

easement as being over and across, inter alia, the Stone. Id.

A few years later, in October of 2002, Ford read the original easement

agreement and "became uncertain" that it created an easement across the Stone, so he

wrote to Exxon Mobil about his concerns. He proposed to execute a "complete,

perfected easement document" in exchange for 135 acres of land. Exxon Mobil,

however, responded that it was of the opinion that the pipeline right-of-way crossing

his property was adequately described in the existing easement. A year and a half

21
later, in IVIarch 2004, Ford sued Exxon Mobil seeking cancellation of the easement

agreement, removal of the pipeline, removal of the alleged cloud on his title, and

quieting of title; he also alleged statutory fraud against Exxon Mobil. Both parties

filed traditional motions for summary judgment, the trial court granted that of Ford,

and Exxon Mobil appealed. M, at 157.

The Beaumont Court of Appeals reversed. The court observed first that Ford's

causes of action seeking cancellation of the easement and for statutory fraud fell

within the four-year statute of limitations. "Fraud prevents the running of a statute

of limitations only until the fraud is discovered or could have been discovered

through the exercise of reasonable diligence." M, at 158 (citmgSherman v. Sipper,

137 Tex. 85, 152 S.W.2d 319, 320-321 (1941)). The court cited further, and with

approval, to Sherman:

[W]here a person has a right in property, and he claims fraudulent
statements were made concerning the title to such property, when the
records relating to such title are open to him he must exercise reasonable
diligence to discover such defect; and if by the exercise of such
diligence he could have discovered such defect and would have known
of his right, he is held to have known it, and limitation will run against
his claim from the time he could have made such discovery by the
exercise of ordinary diligence.

Id.

Applying that principle, the court reasoned as follows:

22
 The easement agreement does not include the Stone, yet the 1998
amendment recited that the easement crossed the Stone. If Ford had
exercised reasonable diligence, he could have discovered the alleged
fraud when he took title to the property by reading the original easement
agreement, which did not mention the Stone, and the 1998 amendment
that asserted an easement across the Stone existed. Indeed, Ford
testified that he "became uncertain " about whether an easement existed
across the Stone after simply reading the original easement agreement.
Therefore, we rej ect Ford' s contention that he could not have discovered
the alleged fraud simply by reading the documents in his chain of title.
We find that Exxon conclusively established when Ford's cause of
action accrued, and there is no genuine issue of material fact as to when
Ford should have discovered his cause of action...

Id., at 158-159 (emphasis added). The court concluded that Ford's causes of action

for cancellation of the easement and for fraud were time-barred; however, the court

felt that the causes of action for quieting of title and removal of the alleged cloud on

title survived limitations. Id., at 159.

The Texas Supreme Court reversed only as regards the quiet title causes of

action, holding that all causes of action — not just fraud — were time-barred. Ford v.

ExxonMobU Chemical Company, 235 S.W.Sd 615,616 (Tex. 2007). The Court had

this to say:

On the merits, Ford argues the court of appeals erred in holding his
fraud claim barred by limitations. The parties agree this claim had to be
brought within four years of when the fraud should have been
discovered by reasonable diligence...While not all public records
establish an irrebuttable presumption of notice, the recorded instruments
in a grantee's chain of title generally do [citing, inter alia, Westland Oil
Development Corporation, supra}.

23
Ford, at 617 (emphasis added). It is significant that the Court expressly cited with

approval to Westland Oil Development Corporation, the very case it had

distinguished earlier in Ojeda de Toca. As Judge Kirkendall observed in this case

(perhaps pithily, given SCOTT'S flip-flop on her theory of the case), while it was not

entirely clear whether SCOTT was complaining about lack of waterfront access or

lack of exclusive waterfront access, in either event the documents in her chain of title

told her what she needed to know on the subject as of the very date of closing on May

22, 2006. Indeed, as and to the extent she complains of lack of "exclusive " access,

her own deed from the grantees Denn andBarr clarifies the matter nicely, since it

makes no reference at all to what she claims in her affidavit was the sought-qfter

"one-half undivided interest in Lot 7."

Although this Honorable Court's opinion in Salinas v. Gary Pools, Inc., 31

S.W.3d 333 (Tex. App.-San Antonio 2000, no pet.)—cited and relied upon by

SCOTT in her Appellant's Brief—predates by several years the holdings in Ford and,

of course, could not survive an inconsistency with the Texas Supreme Court's

opinion therein, nonetheless Salinas is easily distinguishable on its facts from the

instant case. There the defendant installed a swimming pool in the plaintiffs' yard;

originally the plan, as approved by the City of San Antonio, called for the pool to be

installed in the backyard, but the defendant determined unilaterally that this was not

24
feasible and so informed the plaintiffs (without submitting a revised plan to the city)

that it would install the pool in the side yard instead. Later, when the plaintiffs tried

to sell their house, it was surveyed at the behest of a prospective buyer, whereupon

it was discovered that the defendant had installed the pool partially on a public right-

of-way easement—a fact which would not have been apparent from a visual view.

The plaintiffs sued, and the defendant moved for summary judgment on limitations,

which was granted. Salinas, at 335.

This Honorable Court reversed, citing to Ojeda de Toca for the proposition that

constructive notice would not apply as a defense to claims brought under the DTPA.

The Court also observed, however, as follows:

[I]n [HECI Exploration Company, supra} the Texas Supreme Court
noted that constructive notice of real property records is necessary to
preserve stability and certainty regarding title to real property, and
constructive notice of probate records in in rem proceedings is necessary
because such proceedings are intended to bind all persons. This case is
neither a case regarding title to real property, nor is it an in rem
proceeding...

Id., at 337. Salinas thus is analogous to the issue mNRC, supra, involving the lots

being located below the 7 15-foot line. There, as in Salinas, the problem was not one

that could be seen and understood simply by reference to the title

documents—indeed, in both cases a survey was necessary to bring the issue into

focus. Here, by contrast, SCOTT'S claim is very much an issue of title, and is

25
governed entirely by what her own chain of title says she has or does not have, by

whether Lot 1 does or does not feature waterfront access, and by whether that

waterfront access is or is not shared by the rest of the subdivision.

Of course, even ifOjeda de Toca and Salinas could be applied to SCOTT'S

DTPA claims under the instant undisputed facts—which clearly is not the case—still

it would avail her nothing. The statute of limitations on a DTPA claim is two years.

Tex. Bus. & Comm. Code § 17.565. "The DTPA incorporates the discovery rule into

the statute, providing that the claim accrues when the 'consumer discovered or in the

exercise of reasonable diligence should have discovered the occurrence of the false,

misleading, or deceptive act or practice.'" Southwest Olshan Foundation Repair

Company, LLCv. Gonzales, 345 S.W.3d 431, 437 (Tex. App.-San Antonio 2011),

aff'd, 400 S.W.Sd 52 (Tex. 2013). It is of course axiomatic that discovery occurs

when a plaintiff has knowledge of such facts, conditions or circumstances as would

cause a reasonably prudent person to make an inquiry that would lead to discovery

of the cause of action. Isaacs v. Schleier, 356 S.W.Sd 548, 562 (Tex. App.-

Texarkana 2611, pet. denied); see also Estate ofJobe v. Berry, 428 S.W.Sd 888,902

(Tex. App.-Texarkana 2014, no pet.). "Knowledge of such facts is, in law, equivalent

to knowledge of the cause of action for limitations purposes." Estate ofJobe, supra

(quoting Trousdale v. Henry, 261 S.W.3d 221, 234 (Tex. App.-Houston [14th Dist.]

2008, pet. denied)).

26
 On March 23,2011—two years and two months before she filed suit — SCOTT

e-mailed attorney Robert Ritter with her concerns about discrepancies between Lot

2 and Lot 3 regarding waterfront access through Lot 1 . Again as she testified, she

questioned her ownership rights to the water access lot and confirmed that this is

when she began trying to discover "what do I have or not have" (see supra). Even

if, under the clear authority of Ford andNRC, supra, limitations on SCOTT'S DTPA

claim could be deemed to have begun at any time later than when she closed on the

property—which Appellees do not concede, but expressly deny—still nothing could

be clearer than that SCOTT, more than two years before she filed suit, was on notice

of facts and of the need for further inquiry which, as a matter of law, constitutes

notice of the cause of action.

In sum, all claims and causes of action of SCOTT are, conclusively and as a

matter of law, barred by the two-year and four-year limitations statutes. Tex. Civ.

Prac. & Rem. Code §§16.003, 16.004. The trial court was correct in its entry of the

interlocutory summary judgment in favor of FURROW and KELLER WILLIAMS,

and that order, as incorporated into the final judgment, should be affirmed.

B. SCOTT'S claims and causes of action are barred by the sham affidavit
doctrine.

27
 In addition to limitations, the interlocutory summary judgment in favor of

FURROW and KELLER WILLIAMS on liability can be affirmed on at least one

other ground as well.

Again, the trial judge recited in his letter ruling that "[t]he Defendants'

Traditional Motion for Summary Judgment is GRANTED in all things." Supp. C.R.

(04/29/15), at 4. This was incorporated into the summary judgment order itself dated

November 13, 2014: "Defendants' Traditional Motion for Summary Judgment is

Granted in all things." Supp. C.R. (04/29/15), at 2. Among the grounds of the

"traditional" summary judgment motion was, again, that of the sham affidavit

doctrine: that the summary judgment evidence as set forth in SCOTT'S deposition

testimony conclusively established as a matter of law that she received the title which

she understood she was to have received, and that her subsequent affidavit—claiming

that what she really wanted and expected, and that what FURROW had represented

to her she would receive, was "exclusive" waterfront access rather than merely

waterfront access—was and is powerless to create a fact issue.

In Farroux, supra, the plaintiff alleged that he ate a grand slam breakfast from

Denny's which gave him food poisoning. He admitted in deposition that his personal

physician had told him there were too many possibilities to determine whether the

Denny's food caused his illness, and that no physician had ever told him that the

28
Denny's breakfast caused any of his health problems. Subsequently, however, in

response to the defendant's summary judgment motion, the plaintiff submitted an

affidavit stating that his physician told him his food poisoning was the result of the

Demiy's meal. The trial court granted summary judgment for Denny's, and the

plaintiff appealed. Farroux, at 109-110.

The appellate court affirmed, observing as follows:

A party cannot file an affidavit to contradict his own deposition
testimony without any explanation for the change in the testimony, for
the purpose of creating a fact issue to avoid summary judgment. If a
party's own affidavit contradicts his earlier testimony, the affidavit must
explain the reason for the change. Without an explanation of the change
in the testimony, we assume the sole purpose of the affidavit was to
avoid summary judgment. As such, it presents merely a "sham" fact
issue.

Id., at 111 (fh. omitted).

This Honorable Court addressed the sham affidavit doctrine in the case of

Cantu v. Preacher, 53 S.W.3d 5 (Tex. App.-San Antonio 2001, pet. denied),

synthesizing the earlier holdings of Texas appellate courts concerning this doctrine

and stating the conclusion succinctly and well:

We conclude that a court must examine the nature and extent of the
differences in the facts asserted in the deposition and the affidavit. If the
differences fall into the category of variations on a theme, consistent in
the major allegations but with some variances of detail, this is grounds
for impeachment, and not a vitiation of the later filed document. If, on
the other hand, the subsequent affidavit clearly contradicts the witness's

29
 earlier testimony involving the suit's material points, without
explanation, the affidavit must be disregarded and will not defeat the
motion for summary judgment.

Cantu, at 10.

That SCOTT'S affidavit falls into the latter category seems too obvious to

require elaborate discussion, but a brief review and comparison should suffice.

Again, when asked whether she thought she was buying the Lot 1 waterfront

access lot in its entirety along with Lot 2, or that other people with lots in the vicinity

would have access through Lot 1, SCOTT replied: "I was—no, he [FURROW]

explained that they're—by purchasing 1104 Peggy Lane [Lot 2], I would be

purchasing a legal interest in that waterfront access lot [Lot 1]." Q: "Right. Shared

with others?" "A: I don't know." Supra, at 3-4. She testified under oath that she

"didn't at the time [or purchase of Lot 2] know who all had access to the [waterfront

access] lot", but that she didn 't believe she ever thought she had exclusive access to

the lot — rather, she believed she was purchasing a legal right or interest in and to the

•water front access lot. Supra, at 4. She testified, and then repeated, that her only

complaint against FURROW was as follows:

Q: Because isn't that your complaint against—I mean, that's the only
complaint you have against Mr. Furrow as we sit here today, right? "He
sold me this property and he said I had waterfront access rights and I
don't." Isn't that your complaint against Mr. Furrow?

30
 A: Yes.

Q: I mean, that's your only complaint against Mr. Furrow, right?

A: Yes.

Supra, at 8 (emphasis added).

Compare that candid' testimony with SCOTT'S cynical and disingenuous

attempt to "reboot" her claims and causes of action after being presented with the

recorded documentary evidence that her property did indeed enjoy waterfront access

(as shown in her "supportive affidavit"):

1. In 2006,1 purchased Lot 2 and what I believed was a one-half
interest in Lot 1 (the waterfront/water access lot associated with
the property I was purchasing). At the suggestion of Movant
[FURROW] one year later (in 2007), I purchased Lot 3 (the
adjoining vacant lot to Lot 2) directly from [grantees Denn and
Barr] so as to acquire exclusive ownership of the waterfront/water
access property [Lot 1].

11. Movants [FURROW and KELLER WILLIAMS] were
responsible for selling property to me, which was packaged up
and sold to me with the illusion of exclusivity. The illusion of
exclusivity, along with Movants' failure to disclose, would be
enough for the most experienced buyer to be mislead...

II Supp. C.R., Vol. 2, at 491,496. There is not the slightest attempt anywhere in this

affidavit to explain, or even to discuss, SCOTT'S miraculous "recovered memory "

of FURROW having promised "exclusive ownership " of Lot 1 through the purchase

31
of Lots 2 and 3 — or of his having "packaged" either of these lots in an "illusion of

exclusivity " — -when she had testified earlier, under oath, that she believed only that

she -was acquiring -waterfront access, not that she -was acquiring "exclusive"

•water front access.

While SCOTT made no attempt to explain the discrepancy in her affidavit

itself, her attempt to do so in her Appellant's Brief borders on the nonsensical.

Quoting the first paragraph of her affidavit in opposition to the summary judgment

motion, SCOTT states: "The evidence thus suggests Ms. Scott understood that until

she purchased the adjoining vacant lot [Lot 3] she -would share ownership of the

waterfront lot and others (who she did not kno-w) -would have access to it."

Appellant's Brief, at 18 (emphasis added). SCOTT had just quoted herself as stating,

in that paragraph, that "I purchased Lot 3 (the adjoining vacant lot to Lot 2) directly

from Defendants, Juanita Denn and D.R. Barr ("Sellers"), so as to acquire exclusive

ownership of the waterfront/water access property" (emphasis added). If she believed

she had already purchased—from Denn and Barr, the sellers of Lot 2—a one-half

interest in the "exclusive ownership of the waterfront/water access property", and that

by purchasing Lot 3 from Denn and Barr she would acquire the other one-half

interest to go with the one-half interest they had already sold her, then how could she

conceivably have believed she was sharing ownership of the waterfront access lot

32
[Lot 1] with others whom she did not know7 SCOTT'S statement makes no more

sense than any of her other arguments.

Exhibit 2 of the interlocutory summary judgment motion of FURROW and

KELLER WILLIAMS-the AJ. Grebey Subdivision No. 1 plat—clearly establishes

SCOTT'S waterfront access rights appurtenant to Lot 2 (as well as to Lot 3, in which

purchase FURROW and KELLER WILLIAMS played no part). II Supp. C.R, Vol.

1, at 197-198. SCOTT came to this realization when questioned on this very point

at her deposition. Her subsequent attempt to recast this action in terms of

"exclusivity" is meritless at best and fraudulent at worst. It should not be

countenanced by this Honorable Court. Once again, the trial court's entry of

summary judgment in favor of FURROW and KELLER WILLIAMS, as to all claims

and causes of action, was and is correct.

ISSUE NO. 2 RESTATED: SCOTT HAS FAILED TO
PRESERVE ERROR AS TO THE TRIAL COURT'S
GRANT OF SUMMARY JUDGMENT IN FAVOR OF
APPELLEES ON THEIR COUNTERCLAIM FOR
ATTORNEY'S FEES (Responsive to Appellant's Issue
Nos. 3 and 4)

SCOTT further complains of the trial court's granting of summary judgment

on the counterclaim for attorney's fees of FURROW and KELLER WILLIAMS.

They note, correctly, that the summary judgment motion on the counterclaim featured

33
two grounds for recovery: first, by way of contractual attorney's fees under the

earnest money contract by which SCOTT purchased Lot 2; and second, pursuant to

Tex. Bus. & Comm. Code §17.50(c) as a sanction for a groundless/bad faith claim

brought under the DTPA. SCOTT relies chiefly on two cases—Lesieur v. Fryar, 325

S.W.Sd 242 (Tex. App.-San Antonio 2010, pet. denied) and Marker v. Garcia, 185

S.W.Sd 21 (Tex. App.-San Antonio 2005, no pet.)—as authority for her argument that

neither ground properly supports an award of fees.

Whether this argument would have merit had SCOTT properly preserved her

complaint for appellate review is a purely hypothetical question which need not

detain this Honorable Court. Rule 3 3.1 (a), Tex. R. App. P., is clear on this point:

As a prerequisite to presenting a complaint for appellate review, the
record must show that: (1) the complaint was made to the trial court by
a timely request, objection, or motion that: (A) stated the grounds for
the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context; and (B)
complied with the requirements of the Texas Rules of Civil or Criminal
Evidence or the Texas Rules of Civil or Appellate Procedure...

(emphasis added). As discussed supra, SCOTT'S submissions to the trial court will

be searched in vain for any suggestion to the effect that the earnest money contract

provides no basis for an award of attorney's fees to persons or entities said not to be

parties to, or third party beneficiaries of, the contract, or that the order granting

34
summary judgment on the counterclaim is deficient for having failed to include

statutory findings. These arguments may not properly be considered for the first time

on appeal. See, e.g., Watts v. Oliver, 396 S.W.3d 124, 135 (Tex. App.-Houston [14th

Dist] 2013, no pet.) (observing that except for fundamental error, appellate courts are

not authorized to consider issues not properly raised by the parties, and that

fundamental error exists in those instances "in which error directly and adversely

affects the interest of the public generally, as that interest is declared by the statutes

or Constitution of Texas, or instances in which the record affirmatively and

conclusively shows that the court rendering the judgment was without jurisdiction of

the subject matter").

Even so, and in the alternative, were this Honorable Court to take cognizance

of Appellant's complaint. Rule 44.4(a), Tex. R. App. P. provides that "[a] court of

appeals must not affirm or reverse a judgment...if: (1) the trial court's erroneous

action or failure or refusal to act prevents the proper presentation of a case to the

court of appeals; and (2) the trial court can correct its action or failure to act." Thus

this Honorable Court could remand so much of the judgment as concerns the award

of attorney's fees for corrective action by the trial court, including with regard to any

necessary findings dealing with the recover of attorney's fees under DTPA § 17.5 0(c).

35
 CONCLUSION

In sum, SCOTT has presented no lawful complaint as to the attorney's fees

component of the judgment, and no persuasive complaint as to any component

thereof. There is no legitimate reason to disturb the judgment of the trial court in this

matter, and FURROW and KELLER WILLIAMS respectfully submit that it should

be affirmed in its entirety.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellees respectfully pray that

this Honorable Court affirm the judgment of the trial court herein in its entirety; and

for such other and further relief, at law or in equity, to which they might show

themselves justly entitled.

Respectfully submitted,

THORNTON, BIECHLIN, REYNOLDS &
GUERRA, L.C.
100 N.E. Loop 410, Suite 500
San Antonio, TX 78216
210/342-5555; 210/525-0666 (fax)
vwaters@thomtonfirm. corn

By: s/ Vaughan E. Waters
Vaughan E. Waters
State Bar No. 20916700
vwaters@thomtonfirm. corn

ATTORNEYS FOR APPELLEES

36
 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9, Tex. R. App. P., the undersigned certifies that:

1. The Brief ofAppellees contains 8,787 words.

2. The Brief of Appellees has been prepared in proportionally spaced typeface
using Word Perfect in Times New Roman 14 point.

s/ Vauehan E. Waters
Vaughan E. Waters

CERTIFICATE OF SERVICE

A tme and correct copy of the above and foregoing instrument has been
forwarded to the undersigned party on the 1st day of December, 2015.

Via e-service

Mr. Frederick Junkin
Andrews Kurth LLP
600 Travis St., Suite 4200
Houston^TX 77002

Attorneys for Appellant

s/Vauehan E. Waters_
Vaughan E. Waters

37
APPENDIX I
3874) VBW/IW 5/6/15 LED

MAYO?
CAUSE NO. 13-1125-CV-A DEBRACRlt
t
Cterk. Diet Court, Ouada'lupa Oo, Tx-

STAC^Y SCOTT IN THE DISTRICT COURT

vs. GUADALUPE COUNTY, TEXAS

JUANITA DENN, D.R. BARR, LARRY
FURROW, KELLER WILLIAMS LEGACY
GROUP, PATRICK DENN, ROBERT
RITTER, CAROL MATTHEWS, AND DOES
1 THROUGH 5, INCLUSIVB 25TH JUDICIAL DISTRICT

ORDER DENYING! PLAINTIFF'S MOTION
FOR NEW TRIAL ON ATTORNEY'S FEES

On the 7th day of May, 2015 came on for consideration PlaintiflFs Motion for N(?W Trial on

Attorney's Fees. The parties appeared in person and th'ough their respective attorneys of record.

The Court, upon consideration of said motion, the response thereto and ihe arguments of counsel is

of the opinion that said motion should be, and is hereby, in all respects DENIED,
7S/^.
SIGNED and ENTERED this ( ' day of May, 2015,

JUDGE PRESIDING

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Order Denying flainttff's MNT on Attorney's Fees Page 1 of 1