ACCEPTED
03-14-00250-CV
3901099
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/26/2015 3:12:16 PM
JEFFREY D. KYLE
CLERK
In The
Court of Appeals
For The FILED IN
3rd COURT OF APPEALS
Third District of Texas AUSTIN, TEXAS
1/26/2015 3:12:16 PM
JEFFREY D. KYLE
Clerk
NO. 03-14-00250-CV
American Homesites, TX, LLC and Alexandra Krot, Appellants
v.
Fidelity National Title Insurance Company, Appellee
On Appeal from the 353rd District Court
Travis County, Texas
Trial Comi Cause No. D-1-GN-14-000590
APPELLANTS' MOTION FOR REHEARING
Donald H. Grissom
State Bar No. 08511550
don@gandtlaw.com
509 West 12th Street
Austin, Texas 78701
(512) 478-4059
(512) 482-8410 fax
ATTORNEY FOR APPELLANTS
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In The
Court of Appeals
For The
Third District of Texas
NO. 03-14-00250-CV
American Homesites, TX, LLC and Alexandra Krot, Appellants
v.
Fidelity National Title Insurance Company, Appellee
On Appeal from the 353rd District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-14-000590
APPELLANTS' MOTION FOR REHEARING
TO THE HONORABLE FIFTH COURT OF APPEALS:
Appellants American Homesites, TX, LLC and Alexandra Krot,
("Appellants") file this, their Motion for Rehearing of the Court's
Memorandum Opinion dated December 31, 2014. In support of their
motion, Appellants respectfully show the Comi the following:
I. INTRODUCTION
This is an action for breach of fiduciary duties, fi·aud and conspiracy
to commit fi·aud. Over the course of months, Appellee successfully colluded
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with other parties to denude Appellants out of hundreds of thousands of
dollars in a fi·audulent real estate scheme.
By this Motion for Rehearing, Appellants, American Homesites, TX,
LLC and Alexandra Krot, ask this Court to revisit its decision to affirm the
Trial Court's granting of Defendant's Traditional and No-Evidence Motion
for Summary Judgment. Rehearing is appropriate in this litigation because
the Comt's ruling neglects critical evidence presented and has a dispositive
effect. For that reason, Appellants urge the panel to consider the following
argument.
II.PROCEDURALBACKGROUND
In 2006, Appellants filed suit against several Defendants (Sky Group
of Texas, Wolf, Zaretsky, et al) in Cause No. D-1-GN-06-004414, In the
353rd Judicial District Comt of Travis County, Texas. In May 2013,
Appellants sued Appellee alleging conspiracy to commit fraud and
fi·audulent concealment of evidence that tolled the statute of limitations.
Thereafter, Appellee filed a No-Evidence and Traditional Motion for
Summary Judgment. The Trial Comi granted the Motion on January 30,
2014 (R. at 568). Appellee then filed a Motion to Sever the claims against
Appellee which was granted on February 21, 2014 (R. at 569). The severed
action was assigned Cause No. D-1-GN-14-000590 (R. at 569) and
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Appellants filed their Notice of Appeal on April21, 2014 (R. at 591). Later,
on December 31, 2014, this Court issued their Memorandum Opinion,
affinning the Trial Court's order granting summary judgment for Appellee.
II. ARGUMENT
In the Record, Appellants clearly identified which documents were
received in 2013 that were not previously produced in the 2007 round of
production, and that the 6,000 plus documents produced in 2013
demonstrated Appellee's role in fraudulent activities where the 2007
documents presented Appellee as an innocent bystander.
In Appellant, Krot's affidavit (R. at 252), at paragraph 11, the
documents produced in 2013 are distinguished fi·om those produced in 2007.
Krot unequivocally states that none of the 6,000 documents produced in
2013 were part of the original 2007 production. Indeed, Fidelity did not
contradict this claim. Fidelity never claimed or argued that any of the 2013
6,000-page production was produced in 2007. Krot fmiher specifically
identifies that the documents referenced and attached to the affidavit and
response to Fidelity's motion for summary judgment were part of the 6,000
pages -- not previously produced.
The documents identified below were not contained in the 2007
production, but were produced in 2013 and showed the following:
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• Appellee knew that the principals of J&T (Wolf, Zaretsky, and
Borokhovich) were the same as the principals of Waterfall
Gallery as evidenced by (1) Secretary of State Filings for
Waterfall Gallery (R. at 446) Wild Horse Ranch 002239-
002246, (2) Indemnity and Guaranty Agreement (R. at 469)
Wild Horse Ranch 000082-000097, and (3) Secretary of State
Filings for J&T Development (R. at 516) Wild Horse Ranch
004863-004865. The buyer and seller were one in the same. In
essence, self-dealing;
• Appellee closed the sale of the 200-acre tract from J&T to
Waterfall Gallery of Austin. (R. at 462) even though Sky
Station 200 still held the purchase contract assignment from
Sky Group. (R. at 461) as evidenced by (1) Assignment of
Unimproved Property Contract (R. at 461), and (2) General
Wananty Deed With Vendors Lien (R. at 462) Wild Horse
Ranch 002560-002566. There was no contract on which
Fidelity could open a guaranty file;
• Appellee held $25,000 of Appellants' money as earnest money
(R. at 426) as evidenced by the Chart of "Funds received by
Fidelity National Title Insurance Company" Wild Horse Ranch
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004708 (R. at 426). Fidelity knew that it was using monies held
for other persons to close this transaction;
• Appellee held $150,000 of Appellants' money on the 200-acre
contract (R. at 426) as evidenced by the Chart of "Funds
received by Fidelity National Title Insurance Company" Wild
Horse Ranch 004708 (R. at 426);
• Appellee held $300,000 of Appellants' money on the 414-acre
contract. (R. at 426) as evidenced by the Chart of "Funds
received by Fidelity National Title Insurance Company" Wild
Horse Ranch 004708 (R. at 426);
• Fidelity opened numerous guaranty files on the entirety of the
Wild Horse Ranch and various sub-parts (R. at 396-97 and 408)
although there were no contracts or surveys to support these
files; and
• Fidelity wired out over two million dollars at the direction of
the other defendants, which made this a cash-back at closing
transaction (R. at 162).
When taken together this evidence shows, at least circumstantially,
that Fidelity participated in the conspiracy to defraud Appellants. None of
these facts were known or made available to the Appellants in the
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documents produced in 2007.
III. CONCLUSION
It is not the great disparity in the number of documents produced that
evidence Appellee's fraudulent concealment; it is the facts contained within
the newly produced documents that provide the reason for the previous
concealment of records as well as the extent of Appellees role. Using logical
reasoning, one can make the inference that the withholding of records was
meant to conceal wrongdoing by the producing party, in this case, the
Appellee, and thus toll the statute of limitations.
IV. PRAYER
Appellants respectfully request that this Court reverse its opinion of
December 31, 2014, grant Appellants a new hearing, and such other and
further relief, at law or equity, to which they may be justly entitled.
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Respectfully submitted,
/s/DonaldHGrissom
Donald H. Grissom
don@gandtlaw.com
GRISSOM & THOMPSON, LLP
TX State Bar No. 08511550
William W. Thompson, III
TX State Bar No. 19960050
509 West 12th Street
Austin, Texas 78701
512/478-4059
512/482-8410 Fax
ATTORNEY FOR APPELLANTS
CERTIFICATE OF SERVICE
I hereby certify that a tme and correct copy of the foregoing document
has been forwarded to all counsel of record in compliance with Texas Rules
of Appellate Procedure, via facsimile, electronic, or ce1iified mail return
receipt requested, on January 26, 2015.
/s/DonaldHGrissom
Donald H. Grissom
Christopher R. Mugica
Jackson Walker, LLP
100 Congress A venue, Suite 1100
Austin, Texas 78701
512-236-2000
512-236-2002 fax
CERTIFICATE OF COMPLIANCE
I hereby ceJiify on this date that the foregoing document contains
1,185 words.
/s/DonaldHGrissom
Donald H. Grissom
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