ACCEPTED
03-14-00697-CV
5770093
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/22/2015 2:39:38 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-14-00697-CV
IN THE THIRD COURT OF APPEALS
STATE OF TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
PAMELA MEHL, § 6/22/2015 2:39:38 PM
§ JEFFREY D. KYLE
Clerk
Appellant, §
§
v. §
§
DAVID STERN, §
§
Appellee. §
APPELLANT’S FIRST AMENDED BRIEF
On Appeal from Cause No. D-1-GN-14-002071
In the 250th Judicial District Court
Travis County, Texas
Respectfully submitted,
THE LEFLER LAW FIRM
1530 Sun City Blvd, Ste 119
Austin, Texas 78633
T (512) 869-2579
F (866) 583-7294
/s/ Sandra M. Lefler
SANDRA M. LEFLER
State Bar No. 12161040
slefler@leflerlegal.com
LEAD COUNSEL FOR APPELLANT
NO ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant Counsel
Pamela Mehl Sandra M. Lefler
THE LEFLER LAW FIRM
1530 Sun City Blvd, Ste 119
Austin, Texas 78633
T (512) 869-2579
F (866) 583-7294
slefler@leflerlegal.com
Appellee Counsel
David Stern Brent Allen Devere
DEVERE LAW FIRM
1411 West Avenue, Ste 200
Austin, Texas 78701
T (512) 457-8080
F (512) 457-8060
bdevere@1411west.com
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ...................................................... ii
TABLE OF CONTENTS .................................................................................... iii
INDEX OF AUTHORITIES ............................................................................... vi
STATEMENT OF THE CASE ............................................................................ 1
STATEMENT REGARDING ORAL ARGUMENT ........................................ 3
ISSUES PRESENTED .......................................................................................... 4
STATEMENT OF FACTS ................................................................................... 6
SUMMARY OF THE ARGUMENT ................................................................ 14
ARGUMENT AND AUTHORITIES ................................................................ 16
I. APPELLANT SATISFIES THE REQUIREMENTS FOR
MAINTAINING A RESTRICTED APPEAL. THE SCOPE OF
REVIEW BY THE APPELLATE COURT INCLUDES REVIEW
OF THE ENTIRE CASE ......................................................................... 16
A. Each of the Four Elements Necessary for a Restricted Appeal
Exists Here............................................................................................ 16
B. The Scope of Review by this Court Includes Review of the
Entire Case ........................................................................................... 17
II. ERROR 1: THE ORIGINAL PETITION WAS FILED IN THE
WRONG COUNTY IN VIOLATION OF THE MANDATORY
VENUE PROVISIONS OF SECTION 15.011 OF THE TEXAS
CIVIL PRACTICE AND REMEDIES CODE. IT WAS
REVERSIBLE ERROR FOR THE TRAVIS COUNTY COURT
TO ENTER ITS JUDGMENT ................................................................ 18
iii
III. ERROR 2: APPELLEE WAS ERRONEOUSLY AWARDED
RESCISSION OF A LAND CONVEYANCE AS A REMEDY
TO HIS BREACH OF CONTRACT CLAIM, WITHOUT
ANY EVIDENCE IN THE RECORD TO SUPPORT
RESCISSION ...................................................................................... 20
IV. ERROR 3: THE DISTRICT COURT’S ARBITRARY AND
UNSUPPORTED $20,000.00 MONEY DAMAGE AWARD TO
APPELLEE CONSTITUTES APPARENT ERROR ...................... 24
V. ERROR 4: APPELLEE WAS ERRONEOUSLY AWARDED
BOTH RESCISSION AND MONEY DAMAGES UNDER THE
SINGLE CLAIM FOR BREACH OF CONTRACT ....................... 26
VI. ERROR 5: THE DISTRICT COURT’S $2,500.00
ATTORNEY FEE AWARD WAS ARBITRARY AND
UNREASONABLE, AND AWARDED WITHOUT ANY
EVIDENCE OF THE PROPRIETY OF THOSE FEES OR
THE AMOUNT THEREOF IN THE RECORD, AND THUS
CONSTITUTES REVERSIBLE ERROR ........................................ 27
VII. ERROR 6: IN ADDITION TO THE MANDATORY VENUE
REQUIREMENT UNDER SECTION 15.011, THE
RECEIVERSHIP CLAIM WAS ALSO REQUIRED TO BE
FILED IN THE COUNTY WHERE THE PROPERTY IS
LOCATED (WILLIAMSON COUNTY), YET IT WAS FILED
IN THE WRONG COUNTY (TRAVIS COUNTY) ........................ 30
VIII. ERROR 7: THE RECEIVERSHIP CLAIM FAILED TO
NAME ALL PARTIES IN INTEREST – NAMELY,
INDYMAC, THE FIRST MORTGAGE HOLDER –
AS REQUIRED BY TEX. R. CIV. P. 39 .......................................... 30
IX. ERROR 8: APPELLANT WAS NOT GIVEN THE
STATUTORILY REQUIRED THREE-DAY NOTICE
OF THE HEARING ON THE PETITION FOR
APPOINTMENT OF A RECEIVER ................................................ 33
iv
CONCLUSION AND PRAYER ........................................................................ 36
CERTIFICATE OF SERVICE ......................................................................... 37
CERTIFICATE OF COMPLIANCE ............................................................... 38
APPENDIX
v
INDEX OF AUTHORITIES
CASES Page
Alexander v. Alexander, 99 S.W.2d 061 (Tex. Comm’n App.—
Austin 1936, no writ) .................................................................................... 30
Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004) ............... 16,24,28
Arnold Motor Co. v. C.I.T. Corp., 149 S.W.2d 1056
(Tex. Comm’n App.—Galveston 1941, no writ) ........................................ 31
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812
(Tex. 1997) ................................................................................................ 28,29
Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744 (Tex. Civ. App.—
Corpus Christi 1970, no writ) ...................................................................... 30
Barker v. Roelke, 105 S.W.3d 75 (Tex. App.—Eastland 2003,
pet. denied) ..................................................................................................... 20
Basley v. Adoni Holdings, LLC, 373 S.W.3d 577 (Tex. App.—
Texarkana 2012, no pet.) .............................................................................. 28
Board of Firemen’s Relief and Retirement Fund Trustees of Harris Cnty
v. Stevens, 372 S.W.2d 572 (Tex. Civ. App. 1963, no writ)......................... 25
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ............................................... 28
Citizens Nat. Bank Texas v. NXS Const., Inc., 387 S.W.3d 74 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) .......................................................... 25,26
Cooper v. Cochran, 272 S.W.3d 756 (Tex. App.—Dallas 2008, no pet.) ........ 20
Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1,
307 S.W.2d 233 (Tex. 1957) ..................................................................... 21,27
Gray v. Phi Res., Ltd., 710 S.W.2d 566 (Tex. 1986) ......................................... 34
vi
Hani v. Jimenez, 264 S.W.3d 881 (Tex. App.—Dallas 2008, pet. denied) ..... 25
H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496 (Tex. App.—
Fort Worth 2012, no pet. h.) ........................................................................ 21
Helton v. Kimbell, 621 S.W.2d 675 (Tex. App.—Fort Worth 1981,
no writ ......................................................................................................... 33,34
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) ............. 25
In re Estate of Hardesty, 499 S.W.3d 895 (Tex. App.—
Texarkana 2014, no pet.) ............................................................................... 27
Isaacs v. Bishop, 249 S.W.3d 100 (Tex. App.—Texarkana 2008,
pet. denied) ................................................................................................ 20,22
Johnson v. Barnwell Prod. Co., 391 S.W.2d 776 (Tex. Civ. App.
—Texarkana 1965, writ ref’d n.r.e.) ................................................................ 34
Krumnow v. Krumnow, 174 S.W.3d 820 (Tex. App.—Waco 2005,
pet. denied) ..................................................................................................... 34
L.P.D. v. R.C., 959 S.W.2d 728 (Tex. App. – Austin 1998, pet. denied) ........ 17
Marion v. Marion, 205 S.W.2d 426 (Tex. Civ. App.—
San Antonio 1947, no writ ....................................................................... 34,35
Mayberry v. Tex. Dep’t of Agric., 948 S.W.2d 312 (Tex. App.—
Austin 1997, pet. denied) .............................................................................. 25
McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7 S.W.3d 725
(Tex. App.—Austin 1999, no pet.) ............................................................... 27
Merrell Dow Pharms., Inc. v. Havner, 956 S.W.2d 706 (Tex. 1996) ........ 24,29
Morton v. Hung Nguyen, 369 S.W.3d 659 (Tex. App.—
Houston 14th Dist.] 2012, no pet. h.) ............................................................ 21
vii
N. Side Bank v. Wachendorfer, 585 S.W.2d 789 (Tex. Civ. App.—
Houston [1st Dist.] 1979, no writ ) ................................................................ 34
Nationwide Life Ins. Co. v. Nations, 654 S.W.2d 860 (Tex. App.—
Houston [14th Dist.] 1983, no writ) .............................................................. 33
Nelson v. Najm, 127 S.W.3d 170 (Tex. App.—Houston
[1st Dist.] 2003 ....................................................................................... 20,21,27
Norman Communications v. Texas Eastman Co., 955 S.W.2d 269,
41 Tex. Sup. Ct. J. 83 (Tex. 1994) (per curiam) ............................... 16,17,18
Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App. –
Austin 2004) .................................................................................... 16,17,25,29
Pratt v. Amrex, Inc., 354 S.W.3d 502 (Tex. App.—San Antonio 2011,
pet. denied) ..................................................................................................... 30
Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226,
42 Tex. Sup. Ct. J. 1016 (Tex. 1999) ............................................................ 16
Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) ..................................................... 25
Scott v. Commercial Services of Perry, Inc., 121 S.W.3d 26
(Tex. App.—Tyler 2003, pet. denied) .......................................................... 20
Scott v. Sebree, 986 S.W.2d 364, (Tex. App.—Austin 1999, pet. denied) . 21,26
Starr v. Ferguson, 162 S.W.2d 130 (Tex. Comm’n App. 1942, no writ) ........ 25
Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586 (Tex. 1996) .......... 17
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006.) ............... 27
Whitson Co. v. Bluff Creek Oil Co., 256 S.W.2d 1012
(Tex. Civ. App.—Fort Worth 1953, writ dism’d) ...................................... 31
Young v. Kirsch, 814 S.W2d 77 (Tex. App.—San Antonio 1991, no pet.) ...... 25
viii
STATUTES and OTHER AUTHORITIES
TEX. CIV. PRAC. & REM. CODE § 15.001(b) ....................................................... 18
TEX. CIV. PRAC. & REM. CODE § 15.002 ............................................................ 18
TEX. CIV. PRAC. & REM. CODE § 15.011 .................................... 2,4,8,12,14,19,30
TEX. CIV. PRAC. & REM. CODE § 15.063 ............................................................ 19
TEX. CIV. PRAC. & REM. CODE § 64.091 ............................................................ 33
TEX. CIV. PRAC. & REM. CODE § 64.092 ............................................................ 33
TEX. DISCIPLINARY RULES OF PROF’L CONDUCT § 1.04 ................................... 28
TEX. R. APP. P. 26.1(c) ......................................................................................... 16
TEX. R. APP. P. 30 ................................................................................................ 16
TEX. R. CIV. P. 39 ........................................................................................... 31, 32
TEX. R. CIV. P. 39(a) .................................................................................. 13,31,32
TEX. R. CIV. P. 39(a)(ii) ....................................................................................... 32
TEX. R. CIV. P. 47 ................................................................................................. 25
TEX. R. CIV. P. 47(c) ............................................................................................ 26
TEX. R. CIV. P. 695 .................................................................................... 10, 33,34
ix
STATEMENT OF THE CASE
On June 26, 2014, Appellee David Stern filed this action in the 250th Judicial
District of Travis County, Texas for (a) Trespass to Try Title and rescission of a
real estate conveyance in Williamson County, Texas; (b) damages for breach of the
underlying contract; (c) attorney fees; and (d) the appointment of a receiver to sell
the subject real estate. (Clerk’s Record (C.R.) 3 – Original Petition.) Underlying
the lawsuit was a written settlement agreement between the parties to resolve
numerous claims asserted by them in numerous legal proceedings.
Appellant Pamela Mehl was served with process at the office of her then-
attorney, J. Randall Grimes, in Georgetown, Williamson County, Texas. (C.R. 14
– Affidavit of Service.) Appellant gave her attorney the Petition, but he never filed
a timely answer or other response to the Petition.
On July 29, 2014, the district court signed a no answer default judgment
against Appellant. (C.R. 15 – Judgment for Title to Real Estate and Damages.)
Appellant Mehl did not participate in the hearing whatsoever. No reporter’s record
was made of those proceedings. No notice was given of the district court’s hearing
addressing the appointment of the receiver. The Judgment awarded Plaintiff
rescission of only the property conveyance portion of the settlement agreement,
additional monetary damages, attorney fees, and appointed a receiver to take
possession of and sell the real property.
-1-
Appellant did not know about the Judgment in time to file post-judgment
motions or a timely ordinary appeal. After being contacted by the Receiver,
Appellant learned of the Judgment and filed a Notice of Appeal timely
commencing this restricted appeal. Appellant also filed a Petition for Writ of
Mandamus because the district court violated the mandatory venue requirements
under Section 15.011 of the Texas Civil Practice and Remedies Code, and the
receiver’s actions are threatening the sale of the property pending this appeal. The
Petition for Writ was denied. This appeal continues.
-2-
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives the right to oral argument. This appeal is to be decided on
the face of the district court record, and upon the clear, unrefuted law of this state
which establishes that reversible error occurred.
-3-
ISSUES PRESENTED
1. Whether Appellant satisfies the requirements for maintaining a
restricted appeal, and what constitutes the scope of review by this Court on appeal.
2. Whether Appellee’s filing of the Original Petition in the wrong county
in violation of the mandatory venue provisions of Section 15.011 of the Texas
Civil Practice and Remedies Code, and the district court’s entry of judgment in the
wrong county constitutes reversible error.
3. Whether rescission of only a portion of a transaction – here, a land
conveyance, without evidence in the record to support rescission – constitutes
reversible error.
4. Whether it was error for the district court to award $20,000.00 in
damages without any evidence in the record to support the damages award.
5. Whether it is reversible error for the district court to award both
rescission and monetary damages under a single claim for breach of contract.
6. Whether it is reversible error for the district court to award $2,500.00
in attorney fees where the underlying judgment was erroneously entered and with
insufficient evidence in the record of the propriety of such fees or the amount
thereof.
7. Whether it is reversible error for the district court to appoint a receiver
in a county where the real property is not located.
-4-
8. Whether it is reversible error for the district court to appoint a receiver
in a case where a party in interest (namely, the first mortgage holder) is not named
as a party in the suit.
9. Whether it is reversible error for the Appellee to fail to give the
Appellant three-day notice prior to the hearing on the issue of appointment of a
receiver.
-5-
STATEMENT OF FACTS
1. On June 26, 2014, Appellee Stern filed an Original Petition against
Mehl in the Travis County District Court, on claims seeking rescission of a
conveyance of real property, in Williamson County, Texas, trespass to try title,
breach of contract, monetary damages, appointment of a receiver over the
Williamson County property, and attorney fees. (C.R. 3-12 - Original Petition.)
Underlying this suit was a settlement agreement previously entered into between
the parties resolving numerous legal claims between them pending in more than
one proceeding. (C.R. 5 - Original Petition, p. 3, ¶ 7.)
2. In Paragraph 2 of the Petition, Appellee Stern states: “Defendant
[Appellant herein] . . . can be served with process at 700 Grove Lane, Georgetown,
Texas 78626.” (C.R. 3 - Original Petition, p. 1, ¶ 2.) This Williamson County
address is the same address as the Property that is the subject of the Travis County
suit. (C.R. 4-5 - Original Petition, pp. 2-3, ¶ 6.) The entire city of Georgetown,
Texas is in Williamson County, Texas.
3. In support of his assertion that the Travis County court had
jurisdiction over this real property case, Appellee Stern’s Petition claims:
-6-
a. that the litigation settlement agreement “that is in part the basis of
this suit” was “ratified in Travis County, Texas, by a United States
Bankruptcy Judge (C.R.4 - Original Petition, p. 2, ¶ 4(a));
b. that the underlying mediation that resulted in the parties’
settlement agreement occurred in Travis County (C.R. 4 - Original
Petition, p. 2, ¶ 4(b)); and
c. that a deed of trust given by Appellant Mehl to Stern as collateral
for Mehl’s payment under the settlement agreement was negotiated
and approved by the U.S. Bankruptcy Court in Austin, Travis
County, Texas (C.R. 4 - Original Petition, p. 2, ¶ 4(c)). However,
the U.S. Bankruptcy Court for the Western District of Texas has
jurisdiction over the entirety of Williamson County, Texas as well.
Despite those allegations, Appellee Stern also acknowledged in his Original
Petition that:
a. the property that is the subject of the action is located in
Williamson County, Texas (C.R. 4-5 - Original Petition, pp. 2-3,
¶ 6);
b. the deed and the deed of trust that are the subject of the action were
each recorded in the real property records of Williamson County,
Texas (C.R. 5 - Original Petition, p. 3, ¶ 9); and
-7-
c. Appellant Stern alleged a cause of action for trespass to try title
and rescission based on an implied vendor’s lien – each of which is
a real property claim (C.R. 6-7 - Original Petition, pp. 4-5, ¶¶ 13-
16).
4. TEX. CIV. PRAC. & REM. CODE § 15.011 has a mandatory venue section for
real property. With associated real property, it is mandatory that:
Actions for recovery of real property or an estate or interest in
real property, for partition of real property, to remove
encumbrances from the title to real property, for recovery of
damages to real property, or to quiet title to real property shall
be brought in the county in which all or a part of the property is
located.
(Emphasis added.) TEX. CIV. PRAC. & REM. CODE § 15.011.
4. On July 3, 2014, Appellant Mehl was properly served with process
and the Original Petition at her then-attorney’s office, J. Randall Grimes. (C.R. 14
- Return of Service.)
5. Appellant Mehl’s attorney failed to timely answer or otherwise file
any response to the Travis County Original Petition. No documents of any kind
whatsoever were filed on her behalf.
6. On July 29, 2014, the Travis County court conducted a hearing on
Appellant Mehl’s default and on Appellee’s request for appointment of a receiver.
(C.R. 15 - Judgment for Title to Real Estate and Damages (“Judgment”) (see
Appendix A).)
-8-
7. No notice of the hearing was given to Appellant Mehl.
8. Appellant Mehl did not attend the hearing or participate in the
hearing.
9. At the July 29, 2014 hearing, the Travis County court entered a no-
answer default judgment in favor of Appellee Stern and against Appellant Mehl.
(C.R. 15 - Judgment; see Appendix A.)
10. In the Judgment, the Court ruled in favor of Appellee Stern regarding
his claims, as follows:
a. The Court recognized Stern had “a vendor’s lien, equitable lien
and a deed of trust to secure assumption for and in favor of David
Stern on . . . [t]he “Property” . . . otherwise known as 700 Grove
Lane, Georgetown, Texas, 78626, Williamson County . . . by
virtue of David Stern’s prior 50% conveyance of the Property to
Pamela Mehl” (C.R. 16 - Judgment, p. 2, ¶ A);
b. The Court awarded Stern “judgment for title and possession of
50% of the Property based on a rescission of the prior conveyance
. . .” (C.R. 16 - Judgment, p. 2, ¶ B);
c. The Court awarded Stern “actual damages against Pamela Mehl in
the amount of $20,000.00” (C.R. 16 - Judgment, p. 2, ¶ C);
-9-
d. The Court awarded Stern “attorneys’ fees in the amount of
$2,500.00” (C.R. 16 - Judgment, p. 2, ¶ D);
e. The Court awarded Stern post-judgment interest at the rate of 5%
from the date of judgment until paid (C.R. 16 - Judgment, p. 2, ¶
E);
f. Costs were taxed against Appellant Mehl (C.R. 16 - Judgment, p.
2, ¶ F); and
g. The Court found that Stern “has a right to the Property”, and that
“the Property is in danger of being materially injured,” and
appointed a receiver over the Property (C.R. 16-17 - Judgment,
pp. 2-3, ¶ G). The Receiver was ordered to post only a $200.00
bond, and was given the power to take charge and keep possession
of the Property, receive rents, and sell the Property, with the sale
proceeds being applied to extinguish any indebtedness on the
property with the balance “being paid 50/50 to Plaintiff [Stern] and
Defendant [Mehl]. (C.R. 16-17 - Judgment, p. 2-3, ¶ G.)
11. No three-day notice was given to Appellant Mehl prior to the hearing
on the appointment of the Receiver as required by Section 695 of the Texas Rules
of Civil Procedure, even though Appellee Stern even requested at paragraph 4 of
the prayer in his Original Petition that notice of the receivership hearing issue.
- 10 -
(C.R. 9 - Original Petition, p. 7, prayer ¶ 4.) (“The court fix the time and date for
hearing on the application for appointment of receiver and the Court enter an order
specifying the notice to be given Defendant of this hearing, and the manner in
which the notice is to be served.”)
12. No court reporter’s record was made at the July 29, 2014 hearing on
Appellee’s motion for default judgment.
13. The Travis County Clerk mailed written notice of the entry of the
judgment to Appellant on August 5, 2014 (C.R. 61 – Docket Sheet), but she did not
receive the Notice. The Notice was returned to the Court marked, “Unclaimed”.
(C.R. 61 - Envelope from Travis County Clerk to Appellant, postmarked “Returned
to Sender – Unclaimed – Unable to Forward, filed 9/23/2014 in the Travis County
District Court.) (Supplemental Clerk’s Record II, dated June 12, 2015 (“S.C.R.
II”) at 3 - Envelope from Travis County Clerk to Appellant, postmarked “Returned
to Sender – Unclaimed – Unable to Forward, filed 9/23/2014 in the Travis County
District Court.)
14. Appellant Mehl, unaware of the entry of the Judgment until sometime
in October 2014, when she was contacted by the Receiver, was out of time to file a
request for findings of fact and conclusions of law and/or a motion for a new trial.
(C.R. 34 - Notice of Restricted Appeal, p. 3, ¶ 10.)
- 11 -
15. Appellant Mehl filed this Restricted Appeal on November 4, 2014, 98
days following the date of the entry of the Judgment on July 29, 2014. (C.R. 34 -
Notice of Restricted Appeal.)
16. Error is apparent on the face of the record of the Travis County
Lawsuit in the following ways:
a. The Original Petition was not filed in the correct county. The real
property is located in Williamson County, and mandatory venue is
therefore required in Williamson County under Section 15.011 of
the Texas Civil Practice and Remedies Code. Appellee instead
erroneously filed suit in Travis County. (C.R. 3 - Original
Petition);
b. Appellee Stern did not specify an amount of money damages in his
Original Petition (C.R. 9 - Original Petition, p. 7, ¶ 2), yet without
a court reporter’s transcript and any proof of any evidence
presented to the Court, the no-answer default Judgment awarded
him $20,000.00 in damages. (C.R. 16 - Judgment, p. 2, ¶ C);
c. Appellee Stern did not specify an amount of attorney fees in his
Original Petition (C.R. 9 - Original Petition, p. 7, ¶ 5), yet without
a court reporter’s transcript and only meager evidence presented to
- 12 -
the Court, the no-answer default Judgment awarded him $2,500.00
in attorney’s fees. (C.R. 16 - Judgment, p. 2, ¶ D);
d. Appellee Stern sought both rescission and damages for breach of
contract (C.R. 6-7 - Original Petition, pp. 4-5, ¶13-19), and was
improperly awarded both rescission and money damages. (C.R.
16-17 - Judgment, p. 2 ¶¶ B & C);
e. Appellee Stern’s claim for appointment of a receiver was granted
by the Travis County court, even though that claim contained fatal
errors insufficient to establish Appellee Stern’s right to a receiver:
i. The receivership claim was filed in the wrong county
(Travis) rather than where the land is located (Williamson
County) (C.R. 3 - Original Petition);
ii. The receivership claim failed to name all parties in interest
as required by Rule 39(a) of the Texas Rules of Civil
Procedure; specifically, the Original Petition fails to name as
a party to the action the first mortgage holder on the
property, IndyMac. (C.R. 3 - Original Petition); and
iii. The receivership hearing occurred without the statutorily
mandated three-day notice to Appellant in violation of her
due process rights herein.
- 13 -
SUMMARY OF THE ARGUMENT
1. The Appellant satisfies the requirements for pursing this restricted
appeal.
2. The district court entered its no-answer default Judgment, wholly
disregarding that this action was not filed in the proper venue in keeping with the
mandatory venue requirements of Section 15.011 of the Texas Civil Practice &
Remedies Code. As a result, the Judgment must be reversed.
3. Several points of error appear on the face of the record requiring
reversal of the judgment:
A. The district court rescinded only a portion of a transaction –
here, a land conveyance – without addressing all of the other requirements
necessary to support rescission, including no evidence in the record to
support rescission.
B. The district court awarded $20,000.00 in damages without any
evidence in the record to support the damages award; therefore, the damage
award must be reversed.
C. The district court erroneously awarded both rescission and
monetary damages under a single claim for breach of contract.
D. The district court erroneously awarded $2,500.00 in attorney
fees on a judgment that was itself erroneously entered for the reasons set
- 14 -
forth herein, and without sufficient evidence of the propriety of such fees or
the amount thereof in the record.
E. The district court erroneously appointed a receiver over real
property in a county where the real property is not located.
F. The district court committed reversible error when it failed to
give Appellant not less than a three-day notice of the hearing on the issue of
appointment of a receiver.
- 15 -
ARGUMENTS AND AUTHORITIES
I. APPELLANT SATISFIES THE REQUIREMENTS FOR
MAINTAINING A RESTRICTED APPEAL. THE SCOPE OF
REVIEW BY THE APPELLATE COURT INCLUDES REVIEW
OF THE ENTIRE CASE.
A. Each of the Four Elements Necessary for a Restricted Appeal Exists
Here.
Pursuant to Rule 30 of the Texas Rules of Appellate Procedure, a direct
attack on a judgment by restricted appeal (1) must be brought within six months
after a trial court signs the judgment; and (2) must be brought by a party to the suit;
(3) who did not participate in the hearing that resulted in the judgment complained
of, timely file a postjudgment motion, request for findings of fact and conclusions
of law, or a notice of appeal within the normal 30-day period; and (4) the error
complained of must be apparent from the face of the record. TEX. R. APP. P. 30;
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (citing TEX. R.
APP. P. 26.1(c), 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227,
42 Tex. Sup. Ct. J. 1016 (Tex. 1999)); Petco Animal Supplies, Inc. v. Schuster, 144
S.W.3d 554, 558-559 (Tex. App. – Austin 2004) (citing TEX. R. APP. P. 30;
Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 207, 41 Tex.
Sup. Ct. J. 83 (Tex. 1994) (per curiam).
As established in the Statement of Facts, Appellant filed this appeal 98 days
following entry of the Judgment – well within the six-month filing requirement.
- 16 -
Mehl was the named defendant in the suit below, and she was not given any notice
of and did not participate in the no-answer default judgment hearing. The essential
inquiry turns on whether Appellant took part in the “decision-making event” that
resulted in the entry of the Judgment. Texaco, Inc. v. Cent. Power & Light Co.,
925 S.W.2d 586, 589 (Tex. 1996). There is no evidence in the record that
Appellant Mehl participated in the July 29, 2014 hearing resulting in the entry of
the Judgment. Further, without any knowledge of the hearing and the court’s
action taken that day (including entry of the Judgment), Mehl missed the
opportunity to timely file a post-judgment motion, request findings of fact and
conclusions of law, or file a notice of appeal within 30 days. This is the very type
of case for which restricted appeals are intended, and Appellate satisfies the
procedural requirements.
B. The Scope of Review by this Court Includes Review of the Entire Case.
In a restricted appeal, we are limited to considering only the face of
the record, but our scope of review is otherwise the same as that in an
ordinary appeal; that is, we review the entire case.
Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 558-559 (Tex. App. –
Austin 2004)(citing Norman, 955 S.W.2d at 270; L.P.D. v. R.C., 959 S.W.2d 728,
730 (Tex. App. – Austin 1998, pet. denied). The face of the record for purposes of
restricted appeal review, consists of all the papers on file in the appeal, including
the reporter’s record. Norman Communications, 955 S.W.2d at 270. Thus, “it
- 17 -
necessarily follows that review of the entire case includes review of legal and
factual insufficiency claims.” Id.
In this case, numerous errors appear on the face of the record below
requiring reversal of the no answer default judgment.
II. ERROR 1: THE ORIGINAL PETITION WAS FILED IN THE
WRONG COUNTY IN VIOLATION OF THE MANDATORY
VENUE PROVISIONS OF SECTION 15.011 OF THE TEXAS
CIVIL PRACTICE AND REMEDIES CODE. IT WAS
REVERSIBLE ERROR FOR THE TRAVIS COUNTY COURT TO
ENTER ITS JUDGMENT.
In filing his Petition in Travis County, Appellee relied solely upon the
general venue statute set forth in Section 15.002 of the Texas Civil Practice and
Remedies Code – specifically subsection (1) thereof, which provides that all
lawsuits shall be brought “(1) in the county in which all or a substantial part of the
events or omissions giving rise to the claim occurred.”1 This wholly disregards the
definition of “proper venue” set forth at Section 15.001(b):
Sec. 15.001. DEFINITIONS. In this chapter:
***
(b) “Proper venue” means:
1
Appellee enumerated irrelevant references to Travis County in its Petition in an apparent
attempt to convince the court that Travis was “the county in which all or a substantial part of the
events . . . giving rise to the claim occurred”, under TEX. CIV. PRAC. & REM. CODE Section
15.002. (C.R. 4 - Original Petition, p. 2, ¶¶ 4-5; Appellants’ Statement of Facts, supra, ¶ 3.)
- 18 -
(1) the venue required by the mandatory provisions of
Subchapter B or another statute prescribing
mandatory venue; or
(2) if Subdivision (1) does not apply, the venue provided
by this subchapter or Subchapter C.
Here, Subchapter B provides the Mandatory Venue provision applicable to this
case. At Section 15.011 thereof, we see:
Section 15.011. LAND. Actions for recovery of real property or an
estate or interest in real property for partition of real property, to
remove encumbrances from the title to real property, for recovery of
damages to real property, or to quiet title to real property shall be
brought in the county in which all or a part of the property is located.
Thus, the “proper venue” for this case is where the subject Property is located:
Williamson County. This is a mandatory requirement for venue, not one Appellee
or the district court were free to disregard in an exercise of their own discretion.
Since Appellant’s counsel failed to file any responsive pleading to the Original
Petition and Appellant was herself unaware of the action taking place in the district
court, including the entry of the default judgment, she never had the opportunity to
seek a transfer of the action to Williamson County – the county of proper venue –
under TEX. CIV. PRAC. & REM. CODE § 15.063.
If venue is improper due to a mandatory venue provisions, this is always
reversible error.
- 19 -
Appellant also sought to correct the district court’s error through her Petition
for Writ of Mandamus also filed with this Court; however, the Petition was denied.
Therefore, Appellant looks upon this Court to remedy the district court’s disregard
of the mandatory venue statute and reverse the underlying Judgment.
Based upon the foregoing, the district court’s Judgment should be reversed
since the court lacked proper venue for addressing Plaintiff’s claims.
III. ERROR 2: APPELLEE WAS ERRONEOUSLY AWARDED
RESCISSION OF A LAND CONVEYANCE AS A REMEDY TO
HIS BREACH OF CONTRACT CLAIM, WITHOUT ANY
EVIDENCE IN THE RECORD TO SUPPORT RESCISSION.
The Judgment awarded Appellee both rescission of a conveyance of an
interest in land, and also money damages, as recovery for his claim of breach of
contract. (C.R. 16 - Judgment, p.2, ¶¶ A-D.) Rescission is an equitable remedy that
operates to set aside a contract that is legally valid, but is marred by fraud or
mistake, or, if for some other reason, the court must set it aside to avoid unjust
enrichment. Isaacs v. Bishop, 249 S.W.3d 100, 109 (Tex. App.—Texarkana 2008,
pet. denied); Nelson v. Najm, 127 S.W.3d 170, 176–177 (Tex. App.—Houston [1st
Dist.] 2003, pet. denied); Scott v. Commercial Services of Perry, Inc., 121 S.W.3d
26, 30 (Tex. App.—Tyler 2003, pet. denied); Barker v. Roelke, 105 S.W.3d 75, 84
(Tex. App.—Eastland 2003, pet. denied); see Cooper v. Cochran, 272 S.W.3d 756,
767 (Tex. App.—Dallas 2008, no pet.) (rescission is type of relief that must be
prayed for or court cannot grant it). As a general rule, the court will order the parties
- 20 -
to return any consideration paid, restoring them to their respective positions as if the
contract had never existed. Morton v. Hung Nguyen, 369 S.W.3d 659, 670 (Tex.
App.—Houston [14th Dist.] 2012, no pet. h.); H.E.B., L.L.C. v. Ardinger, 369
S.W.3d 496, 509 (Tex. App.—Fort Worth 2012, no pet. h.) (“Upon rescission, the
rights and liabilities of the parties are extinguished …”).
What makes rescission an inappropriate remedy here is that it provided
Appellee with, among other things, double recovery. Rescission is an alternative to
the recovery of damages for breach. See Scott v. Sebree, 986 S.W.2d 364, 368–370
(Tex. App.—Austin 1999, pet. denied). A party establishing grounds for rescission,
such as by proof of fraudulent inducement to make the contract, must choose either
to stand on the contract and recover damages or to rescind. Dallas Farm Mach. Co.
v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 238–239 (Tex. 1957); Nelson v. Najm, 127
S.W.3d 170, 176–177 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). As a
general rule, equity does not allow rescission of a contract for a mere breach of the
contract, particularly when damages are an adequate remedy.
Moreover, in this case there is no evidence in the record proving Appellee’s
entitlement to rescission. As with the money damage award and attorney fees, next
discussed, the record is void of any proof, as Appellee failed to request a court
reporter’s record establishing any of this proof; and, his Petition is unsworn. To be
entitled to rescission, a party must show that (1) the party and the defrauding party
- 21 -
are in the status quo (i.e., there are no retained benefits received under the
instrument and not restored to the other party), or (2) there are equitable
considerations that obviate the need for the status quo relationship. Isaacs v. Bishop,
249 S.W.3d 100, 110 (Tex. App.—Texarkana 2008, pet. denied). The court should
consider an inability to return the parties to their former position in determining
whether rescission would be equitable. Id.
Nothing appears in the record evidencing that the parties were being returned
to status quo through rescission of the conveyance only. In fact, on the face of the
record, just the opposite is true: The conveyance reversed only one small portion of
a much greater exchange of property rights and interests between the parties; thus,
the rescission was incomplete and did little to restore status quo. Instead, it placed
Appellee in a more favorable position than he was prior to the settlement, which is a
completely inequitable result. Specifically, the transaction Appellee sought to
rescind was a settlement agreement containing resolution of multiple issues and
elements of consideration entered into between the parties for the purpose of
resolving numerous legal disputes between them. Appellee’s Original Petition
explains the multi-faceted nature of this agreement:
7. The parties subsequently engaged in lengthy litigation in
several courts, including both state district court and bankruptcy court,
over a number of issues. Ultimately, the Plaintiff and Defendant
reached a settlement of the litigation that, in part, resulted in a division
of the Property.
- 22 -
8. As part of the settlement agreement, Plaintiff agreed to
transfer his 50% interest in the Property to Defendant by a Special
Warranty Deed (“Deed” herein) and Defendant in turn executed a Deed
of Trust to Secure Assumption to Plaintiff . . . whereby Defendant
agreed, among other things, to timely tender mortgage payments to the
preexisting lienholder (“Bank” herein) and ultimately refinance the
Bank mortgage by 2016.
(C.R. 5 - Original Petition, p. 3, ¶¶ 7, 8) (emphasis added).) Looking next to the
Judgment, the district court makes no mention of any of the aspects of the settlement
agreement whatsoever, does not address status quo, and does not find in the
alternative that equitable considerations obviate the need for status quo. Instead, the
district court simply states without explanation:
B. The Court hereby awards David Stern judgment for title and
possession of 50% of the Property based on a rescission of the prior
conveyance under document # 2013063557 of the Williamson County
Real Property Records.
(C.R. 16 - Judgment, p. 2, ¶ C.) The rescission, if proper, would have rescinded the
entire settlement agreement and placed the parties back in their original positions.
Instead, the district court only transferred one real property interest back to
Appellee, did not absolve Appellant of her underlying obligation regarding payment
of the first mortgage indebtedness, and makes no mention of anything else
pertaining to the settlement. This is incomplete, and is error on the face of the
record justifying reversal of the rescission of the conveyance.
- 23 -
IV. ERROR 3: THE DISTRICT COURT’S ARBITRARY AND
UNSUPPORTED $20,000.00 MONEY DAMAGE AWARD TO
APPELLEE CONSTITUTES APPARENT ERROR.
In the present suit, there exists no evidence in the record to support the
District Court’s $20,000.00 award of damages against Appellant, indicating the
award is an arbitrarily assessed amount constituting apparent error. As was
previously stated, in order for an appellant to prevail on its restricted appeal, “error
[must be] apparent on the face of the record.” Alexander v. Lynda’s Boutique, 134
S.W.3d 845, 848 (Tex. 2004). Moreover, a “no evidence” point will be sustained
when there is a complete absence of evidence of a vital fact. Merrell Dow Pharms.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996); see also Petco Animal Supplies,
Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. App. – Austin 2004, no pet.).
Here, there exists no reporter’s record, statement of facts, or evidence of any
kind whatsoever to support the District Court’s $20,000.00 actual damages award
to Appellee. Appellee’s Original Petition was silent as to any damage amount
sought. Thus, there is nothing in the evidence to support the district court’s
Judgment itself, which awards Appellee “actual damages against [Appellant] in the
amount of $20,000 (Twenty Thousand and 00/100 Dollars).”
Further, as a general rule of pleading, the Texas Rules of Civil Procedure
require that the petition must give fair and adequate notice of the facts upon which
the petitioner bases his claim, in order to give the opposing party sufficient
- 24 -
information to enable him or her to prepare a defense. See Tex. R. Civ. P. 47;
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (citing
Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)). While the petition is not
required to plead a specific amount or measure of damages, see Young v. Kirsch,
814 S.W.2d 77, 82-83 (Tex. App.—San Antonio 1991, no pet.), it must
nevertheless sufficiently allege the relief sought. See Board of Firemen’s Relief
and Retirement Fund Trustees of Harris Cnty v. Stevens, 372 S.W.2d 572, 574
(Tex. Civ. App. 1963, no pet.) “It is well settled that the court may not grant relief
not supported by [the] pleading or prayer.” Stevens, 372 S.W.2d at 574 (citing
Starr v. Ferguson, 166 S.W.2d 130 (Tex. Comm. App. 1942, no pet.)). Therefore,
the finder of fact in a lawsuit has broad discretion to award damages within the
range of evidence presented, “so long as a rational basis exists for its calculation.”
Hani v. Jimenez, 264 S.W.3d 881, 888 (Tex. App.—Dallas 2008, pet. denied)
(citing Mayberry v. Tex. Dep’t of Agric., 948 S.W.2d 312, 317 (Tex. App.—Austin
1997, pet. denied) (emphasis added). “[The Court] may not arbitrarily assess an
amount that is not authorized or supported by the [] evidence; [it] may not ‘pull
figures out of a hat.’” Citizens Nat. Bank of Texas v. NXS Const., Inc., 387 S.W.3d
74, 83 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (emphasis added) (citation
omitted).
- 25 -
In paragraph 5 of Appellee’s Original Petition, he simply makes a claim that
the monetary damages are within the jurisdictional limits of the Court (between
$200,000.00 and $1,000,000.00), without further specifying any specific actual
damages to which he is entitled. (C.R. 4 -- Original Petition, p. 2, ¶ 5.) Indeed,
nowhere in Appellee’s Original Petition does he include a statement that he seeks
monetary relief at all, in contradiction to the Texas Rules of Civil Procedure. TEX.
R. CIV. P. § 47(c). This omission, coupled with no factual evidence or support for
the Court’s award, further bolsters the conclusion that the amount was arbitrarily
awarded and constitutes apparent error. Cf, Citizens Nat. Bank of Texas v. NXS
Const., Inc., 387 S.W.3d 74, 83 (Tex. App—Houston [14th Dist.] 2012, no pet.).
Therefore, the district court’s award of $20,000.00 actual damages must be
reversed.
V. ERROR 4: APPELLEE WAS ERRONEOUSLY AWARDED
BOTH RESCISSION AND MONEY DAMAGES UNDER THE
SINGLE CLAIM FOR BREACH OF CONTRACT
As established above, both rescission the award of damages were erroneous
and constituted reversible error. Nevertheless, if this Court were to uphold the
awards, it would constitute error. Rescission is an alternative to the recovery of
damages for breach. See Scott v. Sebree, 986 S.W.2d 364, 368-370 (Tex. App.—
Austin 1999, pet. denied). A party establishing grounds for rescission, such as by
proof of fraudulent inducement to make the contract, must choose either to stand on
- 26 -
the contract and recover damages or to rescind. Dallas Farm Mach. Co. v. Reaves,
168 Tex. 1, 307 S.W.2d 233, 238-239 (Tex. 1957); Nelson v. Najm, 127 S.W.3d
170, 176-177 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, the district
court awarded both, and that double recovery should not be allowed to stand.
Therefore, the award was reversible error and should be corrected by this Court.
VI. ERROR 5: THE DISTRICT COURT’S $2,500.00 ATTORNEY FEE
AWARD WAS ARBITRARY AND UNREASONABLE, AND WAS
AWARDED ON AN ERRONEOUS JUDGMENT, WITHOUT
SUFFICIENT EVIDENCE OF THE PROPRIETY OF THOSE
FEES OR THE AMOUNT THEREOF IN THE RECORD, AND
THUS CONSTITUTES REVERSIBLE ERROR.
The district court’s $2,500.00 attorney’s fees award to Appellee was based
upon the erroneous entry of judgment for Appellee (as above set forth) and is
unsupported by sufficient evidence in the record, making it arbitrary and
unreasonable, which constitutes apparent error. Generally, attorney’s fees in Texas
are not recoverable from an opposing party unless authorized by statute or contract.
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). Where
attorney’s fees are authorized, “[t]rial courts have wide discretion in determining
what is equitable and just in awarding [them], and appellate courts will not
overturn such a decision unless it is clear from the facts the trial court abused its
discretion.” In re Estate of Hardesty, 499 S.W.3d 895, 918 (Tex. App.—Texarkana
2014, no pet.) (citing McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7 S.W.3d 725,
731 (Tex. App.—Austin 1999, no pet.).
- 27 -
Moreover, it is a widely accepted principle that, in awarding attorney’s fees,
the amount must be “reasonable and necessary.” Bocquet v. Herring, 972 S.W.2d
19, 21 (Tex. 1998). Factors to be considered in determining what is reasonable and
necessary include: (1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal service properly;
(2) the likelihood that the acceptance of employment precluded other employment
by the lawyer; (3) the fee customarily charged in the locality for similar legal
services; (4) the amount involved and the results obtained; (5) the time limitations
imposed by the client or by the circumstances; (6) the nature and length of the
professional relationship with the client; (7) the experience, reputation, and ability
of the lawyer performing the services; and (8) whether the fee is fixed or
contingent on results obtained, or uncertainty of collection before the legal services
have been rendered. See Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997); TEX. DISCIPLINARY RULES OF PROF’L CONDUCT
§ 1.04. Additionally, when a party is awarded attorney fees without any legally
correct basis for the award, error has occurred, justifying reversal. Basley v. Adoni
Holdings, LLC, 373 S.W.3d 577, 588 (Tex. App.—Texarkana 2012, no pet.).
As was stated above, in order for an appellant to prevail on its restricted
appeal, “error [must be] apparent on the face of the record,” Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004), and a “no evidence” point will be
- 28 -
sustained when there is a complete absence of evidence of a vital fact. Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996); see also Petco
Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. Civ. App. – Austin
2004, no pet.). The only proof in the record in support of attorney fees is the
Affidavit of Brent Devere, which made two conclusory statements only: (a) that
10 hours of time was reasonable in this matter, and (b) that $250 per hour was an
acceptable fee. (See Supplemental Court Record I dated April 9, 2015 (“S.C.R.
I”) at 15-17). No other proof was offered in support of those conclusory
statements. Nowhere did Appellee address the numerous factors set forth in Arthur
Andersen. Moreover, as shown above, these attorney fees assume that a proper
judgment must first have been awarded in favor of Appellee in order to justify a
fee award; yet, as shown herein, the judgment itself was not proper.
Appellee here proffered no arguments, and the record contains insufficient
evidence or statement of facts that supports a finding that $2,500.00 in attorney’s
fees was reasonable and necessary. Further, nowhere in the record is there an
examination by the district court of the eight factors from Arthur Andersen. As a
result, the district court’s award of $2,500.00 for attorney’s fees was arbitrary and
unreasonable, constituting apparent error, and must be reversed.
- 29 -
VII. ERROR 6: IN ADDITION TO THE MANDATORY VENUE
REQUIREMENT UNDER SECTION 15.011, THE
RECEIVERSHIP CLAIM WAS ALSO REQUIRED TO BE FILED
IN THE COUNTY WHERE THE PROPERTY IS LOCATED
(WILLIAMSON COUNTY), YET IT WAS FILED IN THE
WRONG COUNTY (TRAVIS COUNTY).
In general the usual rules of venue apply to receivership proceedings. See,
e.g., Pratt v. Amrex, Inc., 354 S.W.3d 502, 504–505 (Tex. App.—San Antonio
2011, pet. denied) (venue exception for land determined proper venue in action by
receiver against strange to receivership); Alexander v. Alexander, 99 S.W.2d 1062,
1064 (Tex. Comm’n App.—Austin 1936, no writ) (allegation that underlying
action was for partition of real estate in Brown County was sufficient to show
jurisdiction of Brown County district court). Here, there is no question that the
mandatory venue statute in Section 15.011 applies. Consequently, the receivership
claim is similarly subject to the mandatory venue of Williamson County. The
Travis County court was without authority to issue the receivership order,
constituting reversible error.
VIII. ERROR 7: THE RECEIVERSHIP CLAIM FAILED TO NAME
ALL PARTIES IN INTEREST – NAMELY, INDYMAC, THE
FIRST MORTGAGE HOLDER -- AS REQUIRED BY TEX. R.
CIV. P. 39.
In an application for a receivership, all persons or entities over whose
properties a receiver is to be appointed are parties needed for just adjudication of
the proceeding. Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744, 747
- 30 -
(Tex. Civ. App.—Corpus Christi 1970, no writ) (all such persons held necessary
and indispensable under former Tex. R. Civ. P. 39); see also Tex. R. Civ. P. 39(a);
Arnold Motor Co. v. C. I. T. Corp., 149 S.W.2d 1056, 1059 (Tex. Comm’n App.—
Galveston 1941, no writ) (applying traditional “fundamental error” analysis). Even
before the 1970 amendments to Civil Procedure Rule 39, Texas courts had some
reluctance to treat a problem of parties as jurisdictional (see Whitson Co. v. Bluff
Creek Oil Co., 256 S.W.2d 1012, 1014 (Tex. Civ. App.—Fort Worth 1953, writ
dism’d) (in action between co-owners of oil lease, appointment of receiver was not
reversible error despite failure to join owners of overriding royalty interest,
because trial court could determine at trial on merits whether all necessary parties
had been joined). Under modern procedure, however, all persons who claim an
interest in properties placed in receivership should be joined if feasible. TEX. R.
CIV. P. 39(a). In a proper case, a property owner may be “regarded as
indispensable” TEX. R. CIV. P. 39.
Here, Appellee’s Petition acknowledges the existence of a first mortgage
lien on the property (C.R. 4-5 - Original Petition, pp. 2-3, ¶ 6), but fails to identify
the lender. In the Judgment, however, the district court attached a copy of the
Special Warranty Deed conveying Appellee’s interest in the property to Appellant
(the same conveyance that was erroneously rescinded by the district court). (C.R.
20 - Judgment, Exhibit 1.) The body of the Special Warranty Deed identifies the
- 31 -
underlying indebtedness as a $256,200.00 purchase money loan from IndyMac
Bank, F.S.B. Despite acknowledging the existence of IndyMac’s interest in the
property and in the proceedings, Appellee failed to name IndyMac as a party to the
receivership proceedings and the record fails to show any notification to IndyMac
thereof.
Rule 39(a) of the Texas Rules of Civil Procedure notes the importance of
including all parties in interest because their absence may “(ii) leave any of the
persons already parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest.” TEX. R. CIV.
P. 39(a)(ii). Here, Appellant Mehl assumed the first mortgage indebtedness as part
of the settlement agreement (C.R. 5 - Original Petition, p. 3, ¶¶ 7-8), in exchange
for which Appellant received an assignment of 100% of the subject property. This
conveyance, however, was rescinded by the district court, leaving no ruling,
disposition, or change in Appellant’s assumption of the first mortgage.
Consequently, Appellant is still obligated to pay the underlying indebtedness, yet
she has been stripped of 50% of the ownership in the property itself. Had IndyMac
been made a party to the action, the rights and obligations of all parties would have
been before the Court. Further, it is very unlikely that any default judgment would
have been entered against Appellant, since an interested third party (IndyMac)
- 32 -
would also have been in the picture overseeing the overall disposition of these
proceedings.
Appellee’s failure to comply with his statutory requirement to name
IndyMac renders the proceedings incomplete and enabled Appellee to assume a
position of possession (through the receiver) superior to the rights of the
underlying lienholder. The Judgment should be reversed, the receivership
appointment vacated, and the Appellee required to replead in order to add IndyMac
as a necessary party to the proceedings.
IX. ERROR 8: APPELLANT WAS NOT GIVEN THE
STATUTORILY REQUIRED THREE-DAY NOTICE OF THE
HEARING ON THE PETITION FOR APPOINTMENT OF A
RECEIVER.
There is no indication in the record of this case that Appellant was given any
notice of the hearing on Appellee’s Petition for the appointment of a receiver. If
the application for receivership concerns property that is fixed and immovable, the
court is required to give notice to the adverse party unless otherwise provided by
statute. TEX. R. CIV. P. 695 (insufficient notice given when oral request for
receivership was made after close of evidence at conclusion of temporary
injunction hearing); Helton v. Kimbell, 621 S.W.2d 675, 678 (Tex. App.—Fort
Worth 1981, no writ) (notice requirement applies to mineral receiverships under
predecessor of TEX. CIV. PRAC. & REM. CODE §§ 64.091, 64.092); see,
e.g., Nationwide Life Ins. Co. v. Nations, 654 S.W.2d 860, 861–862 (Tex. App.—
- 33 -
Houston [14th Dist.] 1983, no writ) (vacating order of receivership for lack of
notice)]. Real estate is fixed and immovable property within the meaning of Civil
Procedure Rule 695, and notice is therefore required before a receiver may be
appointed if real property is involved. Krumnow v. Krumnow, 174 S.W.3d 820,
829 (Tex. App.—Waco 2005, pet. denied); N. Side Bank v. Wachendorfer, 585
S.W.2d 789, 791–792 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ).
Under Texas Rules of Civil Procedure 695, the court must set a receivership
application for hearing and serve notice on the adverse party not less than three (3)
days before the hearing. TEX. R. CIV. P. 695; see Krumnow v. Krumnow, 174
S.W.3d 820, 829–830 (Tex. App.—Waco 2005, pet. denied) (notice improper
when court raised issue of appointment of receiver on its own motion); Marion v.
Marion, 205 S.W.2d 426, 429 (Tex. Civ. App.—San Antonio 1947, no writ) (show
cause order issued at time of original appointment does not constitute notice for
subsequent modified order of appointment). This rule does not confer personal
jurisdiction absent some type of citation or appearance by the named defendant.
Gray v. Phi Res., Ltd., 710 S.W.2d 566, 567 (Tex. 1986) (rule not satisfied by three
days’ posting of petition at courthouse).
Failure to give notice makes the appointment of the receiver voidable, not
void. Johnson v. Barnwell Prod. Co., 391 S.W.2d 776, 785 (Tex. Civ. App.—
Texarkana 1965, writ ref’d n.r.e.); Helton v. Kimbell, 621 S.W.2d 675, 678 (Tex.
- 34 -
App.—Fort Worth 1981, no writ). Thus, as other courts of appeal have noted, any
question of notice should be raised in a direct attack, such as a motion to vacate the
order of appointment or an appeal. An appeal may be preferable because making a
motion to vacate waives any complaint about the absence of notice. Marion v.
Marion, 205 S.W.2d 426, 429 (Tex. Civ. App.—San Antonio 1947, no writ).
The record fails to show that Appellant ever received notice of the
receivership hearing. Accordingly, she was thereby denied proper due process and
an opportunity to be heard before the receiver was appointed. Thus, the district
court’s Judgment appointing the receiver is VOID, and should be reversed and this
Court order the receiver dismissed from this action.
- 35 -
CONCLUSION AND PRAYER
Based upon the foregoing, it is clear that the district court’s Judgment is
fraught with numerous points of error, all as plainly seen from the face of the
record. The district court was without proper venue to entertain the action before
it, requiring reversal of the Judgment. The Judgment itself and relief entered is
without support in fact or in law, and there is no evidence in the record to support
the relief granted. Accordingly, Appellant prays that this Court reverse the
Judgment in its entirety and remand the matter with instructions that the
receivership is vacated and that all further proceedings must be transferred to
Williamson County, Texas, where Appellant would be permitted to answer or
otherwise plead to Appellee’s claims; that Appellant be awarded her costs incurred
herein, including all reasonable attorney fees incurred as a result of overturning
Appellee’s unwarranted Judgment; and for such other and further relief as may in
the premises be just and equitable.
Respectfully submitted,
THE LEFLER LAW FIRM
1530 Sun City Blvd, Ste 119
Austin, Texas 78633
T (512) 869-2579
F (866) 583-7294
/s/ Sandra M. Lefler
SANDRA M. LEFLER
State Bar No. 12161040
slefler@leflerlegal.com
- 36 -
LEAD COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of June, 2015, Appellant served
Appellee with a true and correct copy of the foregoing Appellant’s First Amended
Brief via electronic filing service to:
Brent Allen Devere
Devere Law Firm
1411 West Avenue, Ste 200
Austin, Texas 78701
bdevere@1411west.com
/s/ Sandra M. Lefler
SANDRA M. LEFLER
- 37 -
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word
2013 and contains 8967 words as determined by the computer software word count
function, inclusive of the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1) that otherwise do not have to be counted.
/s/ Sandra M. Lefler
SANDRA M. LEFLER
- 38 -
APPENDIX
1. Judgment dated July 29, 2014
2. Notice of Judgment returned to District Court Clerk marked “Unclaimed” –
filed September 23, 2014
3. Tex. Prac. & Remedies Code § 15.002
4. Tex. Prac. & Remedies Code § 15.011
5. Tex. R. Civ. Pro. 39
APPENDIX
DOCUMENT 1
DC BK14217
BK14217 PG560
PG560
Disp
Disp Parties:
Filed in
In The
The District Court
Dlsp cede:
!Asp code:. Q./0 /CLS..; Litt
CVD/CLS of Travis
Travis County,
County, Texas
Texas
Redact pgs:
Redaetpg,s:
Clerk 1.);:t1 JUL 2 9 2014
JudgCSSAAL Clerk
..ludge
At
At $
$ 142.4en,_M.
14 2- M.
CAUSE NO. D-I-GN-14-002071 Amelia Rodriguez•Menaza,
RodrIguez•Menta, Clerk
DAVID STERN, IN THE DISTRICT COURT
Plaintiff iS
V.
25e"
2501/JUDICIAL
JUDICIAL DISTRICT
DISTRICT
PAMELA MEHL,
Defendant TRAVIS COUNTY, TEXAS
JUDGMENT FOR TITLE TO REAL ESTATE AND DAMAGES
The hearing on this cause
cause was
washeld
heldon
onJuly
July 29,
29, 2014.
2014.Plaintiff;
Plaintiff, David
DavidStern,
Stern, appeared,
appeared, by
and through counsel
counsel and
and Defendant,
Defendant,Pamela
PamelaMehl,
Mehl,although
althoughduly
duly cited
cited to
to appear
appearby
byfiling
filing an
answer herein,
answer herein, failed
failed to
to file
file an answer
answerwithin
within the
the time
time allowed
allowed by law.
Onthe
I. On
1. theclaim
claimof
ofBreach
Breach of
of Contract,
Contract, the Court finds in favor of Plaintiff,
Plaintiff; David
DavidStern,
Stern, and
against Defendant, Pamela
Pamela Mehl.
Mehl.
On the
2. On the claim
claim of
of Trespass
Trespass to
to Try
Try Title,
Title, the
the Court
Court finds
finds in
in favor of Plaintiff,
Plaintiff, David
David Stern,
Stern, and
against Defendant, Pamela
Pamela Mehl.
Mehl.
15
DC BK14217 PG561
Pursuant to the pleadings and evidence on file, the Court finds and ORDERS as follows:
A. The Court recognizes aa vendor's lien, equitable lien and a deed of trust to secure
Cowl recognizes
assumption for and in favor of David Stern on the Property (The "Property" is otherwise known
as , Georgetown, Texas 78626, Williamson County along with all improvements
and mobile homes, and is further
thither described on Exhibit I attached herein) by virtue of David
Stern's prior 50% conveyance of the Property to Pamela Mehl.
B. The Court hereby awards David Stern judgment for title and possession of 50% of
the Property based on a rescission of the prior conveyance under document #2013063557 of the
Williamson County Real Property Records.
C. The Court further awards David Stern actual damages against Pamela Mehl in the
amount of $20,000.00 (Twenty Thousand and 00/100 Dollars).
D. The Court awards David Stern, attorneys' fees in the amount of $2,500.00 (Two
Thousand Five Hundred and 00/100 Dollars), against Defendant, Pamela Mehl.
E. Plaintiff, David Stern, is entitled to post judgment interest on the total amount of
the judgment awarded hereinabove, at the rate of 5% per annum from the date this judgment is
signed until paid.
F. Costs are hereby taxed against Defendant, Pamela Mehl.
G. Plaintiff, David Stern, has a right to the Property, and the Property is in danger of
being materially injured, thus requiring the appointment of a receiver. The Court appoints Nancy
Perry as receiver. Receiver shall take an oath swearing to perform the duties of receiver
faithfully,
faithfidly, and receiver shall post a $200.00 (Two Hundred and 00/100 Dollars) bond that shall
be conditioned on faithful discharge of duties as receiver and obedience to the orders of the
Court. Receiver shall be vested with the powers to take charge and keep possession of the
2
16
DC 8K14217 PG662
PG562
Property, receive
Property, receive rents,
rents, and
and sell
sell the
the Property
Property and
and hire
hire real
real estate
estate brokers and other agents
agents to
to sell
the Property, with
withsuch
such sale
sale being
being subject
subject to
toCourt
Courtapproval.
approval The
The rent
rent and
and sale
sale proceeds shall be
used to pay all valid
used valid secured
secured liens on the property and property taxes
taxes due
due plus
plus payment
paymentof
of all
all
amounts due
due under
under this
this judgment,
judgment, with the remaining
with the remaining proceeds,
proceeds, if any, being
if any, being paid
paid 50150
50/50 to
Plaintiffand
Plaintiff andDefendant.
Defendant.The
Thereceiver
receivershall
shallbe
be entitled
entitledto
tocompensation
compensation at
at $175.00
$175.00 an hour and
reimbursement of
reimbursement of reasonable
reasonable and necessary
necessary expenses,
expenses,after
afterapplication
application to
to and
and approval
approval by the
Court for
Court forsuch
suchfees
feesand
andexpenses.
expenses. Receiver's
Receiver's fees
fees and
and expenses
expenses shall
shall be
be taxed
taxed as
as costs.
IT IS
IT IS FURTHER
FURTHERORDERED
ORDEREDthat
thatPlaintiff,
Plaintiff,David
DavidStern,
Stern,may
mayrecord
record this
this order
order in
in the
the real
property records
property records as
as evidence
evidence of
of ownership
ownership of the Property, and
and is
is entitled
entitled to enforce this
judgment through
judgment through abstract,
abstract, execution
execution and
and any
any other
other process
process necessary,
necessary, and
andall
all writs
writs and
processes for
processes for the
the enforcement
enforcement and
and collection of this
collection of this judgment
judgment and
and costs
costs may issue.
IT IS
IT IS FURTHER
FURTHERORDERED
ORDEREDthat
that this
this is
is aa final
final judgment
judgment and finally disposes of
finally disposes of all
all
parties and all claims
claims and
and is
is appealable.
appealable.
ath.
SIGNED this the 1 day
day of July, 2014.
ofJuly,
DISTRICT)
TJ 1IGE
DISTRICIA GEPRESIDING
PRESIDING
Approved as to Form:
3
17
DC BK14217 PG563
Brent A. Devere
SBN#00789256
1411 West Avenue, Suite #200
Austin, Texas 78701
Ph: 512-457-8080
Fax: 512-457-8060
Attorney for David Stern
4
18
DC BK14217 PG564
EXHIBITI I
EXHIBIT
19
DC BK14217 PG565
12-12209-hcrn Doc#124-2
1242209-hem 05/22/13 16:33:15
Doc#124-2 Filed 05/22/13 Entered 05/22113 16:33:15 Exhibit Pg 7 of 34
Special Warranty Deed
Notice of confidentiality rights: If you are a natural person, you may remove or strike any
or all of the following information from any instrument that transfers an interest in real
property before it is filed for record in the public records: your Social Security number or
your driver's license number.
Date: May 3, 2013
Grantor: David Stern
Grantor's Mailing Address:
Lty
LtIf /4t,)&61
J()&- c-e-si
-e-S, eA
elk.
quo
00 4
Lis—
Grantee: Pamela Mehl
Grantee's Mailing Address:
Georgetown, Texas
Williamson County
Consideration:
A settlement agreement in a bankruptcy case style In •Re:
.Re: Pamela Christina Meld, filed
under Case
Case No.
No. 12-12209
1212209 in the Western
Western District
Districtof
ofTexas,
Texas,Austin
AustinDivision,
Division,and
andten
tendollars
dollarsand
and •
other valuable consideration paid by Grantee, and Grantee's assumption of the unpaid principal
and earned interest on the note in the original principal sum of Two Hundred Fifty-six Thousand
Two Hundred dollars ($256,200.00)
($256,200,00) dated August 11, 2004, executed by David Stem, and
payable to the order of IndyMac Bank, F.S.B.. The note is secured by a vendor's lien retained in
a deed dated August 11, 2004, to David Stern and Pamela Meld,
Mehl, and additionally secured by a
tntst dated August 11, 2004, from David Stern and Pamela Meld
deed of trust Mehl to Charles A. Brown,
Trustee, recorded in clerk's filo
file number 2004064127 of the official public records of real
20
DC BK14217 PG566
12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 16:33:15 Exhibit Pg 8 of 34
property of Williamson County, Texas. Grantee agrees to indemnify and hold Grantor harmless
from payment of the note and from performance of Grantor's obligations specified in the
instruments securing payment of the note. Grantor assigns to Grantee the casualty insurance
policy on the property, all utility deposits for utility service at the property, and all funds held in
escrow for payment of taxes and insurance premiums.
Property (including any improvements):
The legal description is attached hereto and incorporated herein for all purposes
Reservations from Conveyance and Exceptions to Conveyance and Warranty:
Grantor reserves no interest in any oil, gas, and other minerals in and under and that may
be produced from the property.
This deed is subject to all easements, restrictions, conditions, covenants, and other
instruments of record.
Grantor, for the consideration and subject to the reservations from conveyance and
exceptions to conveyance and warranty, grants, sells, and conveys to Grantee all of Grantor's
interest in the property, together with all and singular the rights and appurtenances thereto in any
-way belonging, to have and hold it to Grantee and Grantee's heirs, successors, and assigns
forever. Grantor binds
binds Grantor
Grantor and Grantor's heirs
and Grantor's heirs and
and successors
successors to
to warrant and forever defend
all
alt and singular the property to Grantee and Grantee's heirs, successors, and assigns against
every person whomsoever lawfully claiming or to claim the same or any part thereof when the
claim is by, through, or under Grantor but not otherwise, except as to the reservations from
conveyance and exceptions to conveyance and warranty.
When the context requires, singular nouns and pronouns include the plural.
Grantee assumes all ad valorem taxes due on the property for the current year.
21
DC BK14217PG567
BK14217 PG567
12-12209-hcm Doc#124-2Filed
1242209-hem Doc#124-2 Filed05/22/13
05/22/13Entered
Entered05122/13
05/22/13 16:33:15 Exhibit Pg 9 of 34
avid
This instrument was prepared
prepared based
based on
on information
information
furnished by the parties, and
and no independent title
no independent title
search has
has been
been made.
made.
STATE OF
STATE OF Cs a.
6 140 r,-r 1111
/as A--.)
COUNTY OF 1_45 A -)Q_L f
This instrument was acknowledged before me on 3.4, 2 -1 2'7 (-7
2-41( (-3 by David
• — - .....
Stern.
Stern CHUCK JIROJIROMURAYAMA
MURAYAMA
Commission# #1990849
CommissIou 1990849
Notary Public--Califotnla
Notary Public California
Los Angeles County
Angeles County at
.)-1
11
,...
Comm
My ...Comm.
......ExTires0cl!,!018Notary
Expires Oct 9, 2016 t Pub
PREPARED IN THE OFFICE OF: AFTER RECORDING RETURN TO:
0
0 H.H.
Bryan
BryanHicks,
Hicks,PLC
PLC Pamela Mehl
901 2nd St.
Marble Falls,
Falls, TX
TX 78654 Georgetown, Texas
Tel: (830) 693-2165
Fax: (830) 693-8185
22
DC BK14217 PG568
BK14217 PG568
12-12209-hem Claim#5
12-12209- horn PartPart
Claim#5 2 Filed 10131112
2 Filed Exhibit
10/31/12 PagePage
Exhibit 27 of27
34 of 34
Alt
Allthat
Oworigin
cantotract
tractcea panel
purd of (gland
WS situated inA Wilharnion
Willidoon coon%
Vow%Teas, Testa oc." 1110 'Ohm Berry
oulorthehotin BerriSurveY,
Stag,
Abalract No.
Abstract No.SISImai
andtha 3. Carew
theM.)4,1. Sorrey,Aboaa
Duds Surrey, Midi act No.
No. 246
244 endnod bolni
balm thathat Tact
Tr ad 1 cowrie/toto
I arrayed
Raymond
Raymond A. A. Moon by Eireninty
Warmly Deed Deeddated
dated August 30,1913 usd
Aupud 30,1413 modreturded
retardedin in Volt ma1231,
Volume 12.31,
PepPiga
233 233
of of
Official Record,
the CHIleial of Willismaor
Roads of Williarroot County
Countygod
godckacribod
dtscribedby
bymetal
nista grad bound. u
and bounds es RAMC
fotlmrc
•
okra NRK) 14 uanerrIron
BUOINNMO ironpipe
pipefence cornar pod
tone comer partinInthe
theNorth
Northlint
lintof
of Oran
Oroyal-ana
Lana Par fortathe Sootily:4041w
Southeast comer of .
o$
that tact
this tactdostrixel
daroabedinina Warranty
a WattanlyDeedDeedto lc Debby
Debby JutJana
:Wryitchy recorded
recorded in Volume
in Voiu mo 730,730,PasoPap77377) of the
or the
Williamson County
Williamson CountyMadDad Records
Remoldsbeing
beingMathe Southeast corge ofofsaid
Southeast coroe'r midMoors
Moor. TvSt act
us 1I and
and this
this ma;
trar.t;
, ••
THIENCV.: S71'
MNGE: S 7)* 36'
36' 14"
14"W W 176.76
17606fa* foewith
OAthetheNorth
NorthIrDc
OneofofOros
Orme Lane
LemtotoictatImo
Ironpin
pinround
foundforfathe
At
Scxdhetst
Scythe caorrwr
ad coma of of
tbatbat Tract
Tract 1111as as described
described in said
in said Moor,
Motor WerraelyDeed
Worrenly Used for the
for Scrothwcstcoma
the Southwtst camofof
saidTract
sad Tract11and
andthis
this and;
tact;
IHENCR:
THENCE:1.11b
withtits
thecommon
046141011linHat
• ofofsaid 'Tract
rid 'hut 1 And Tract11,N
1 andTract 11; N0*
tr 03'
0)' 07" W 431.03 foe*
fool to
lo an lionpin
.nlwn pin
frond and
found 3416'
and N 16'53'
33'47"
47" WW 43/.44
436.43to to to
anbon
Ironpin
pinfound
foundfor
forthe
OaNorthust
Northeutcoma
coma of
of said
said Tract J1 andaing
ft and bring
the 14c4thweert cornetofofaaid
Northwest coma sad Tula rued 0.1.1
Tract11and tract;
this !rut
'1113a1C35; with the
'TKENCIP. with the PlarA
North One
line ofat said Tract1,
aid Tact
I) N11
It'71'
13'13'
14" 14"
E t~ 31331114
31331 fret totouLa bon ptracam4,
hoopla found,
2) N -Fr 11'
2) 37" R
Id' S7" II 182.11
183.11 feat feet to asiron
o in ironpin
pinfound,
found,
73' IS' 0"
3) N 73
3) 45"811 40.01feet
60.01 rant10 an lien
IQ in Iron On
pia round.
found,
4) N 61'29'
4) 61` 29'11"1 1E." 90.11
g 90.11feat to to
fart sosohart
konpinpin
fouosd
foundFs
intiro
the Watt
Wet IlDe saidlachy
line of old tractrot
lathy via the
for Os
COITili of mid
Nor*calt comer
Nottaat odd Tract
Traci1I and
and Odaabettract;
KW;
TKENt't
THENCE. :Jong the'Wett
don; tho'Weafine of of
I1PC laidsed
holly
haw tract
tratand
andtheMePast Env of
Ella11111 of mid
said firaca.
tea
1) S
1) S 12.
12431' 30" EE370.14
321 343" 37034 feet to te tt iron
iron pin
pin kuncl,
fond,
1)
2) SS10'5N23'
23'7.5"
1.1"EEl341.191=1
141.19 fed to to artbon
anion pie piAfound,
found,'•
3) S £3'40'
3) 40'44"
44"EE195.19
195.19feelfacttotothe
lb°plus
platyofofBeibining
csir\n‘nisand
andcantata:1g
contain/417.23
17.23 aver
ecru heal.
of land.
RECORDERS
RECORDERS MEMORANDUM
MEMORANDUM
All
All or parts Drill.
or parts of the text on this page was
for satisfactory
not clearly legible for satisfactory
recordation
Exhibit ""
Exhibit
111
23
23
DC BK14217
BKI4217 PG569
12-12209-hcm Claim#5
12-12209-hcm Claim#5 -Part
-Part 2 Filed
2 Filed 10/31/12
10/31112 Exhibit
Exhibit PagePage
28 of28
34 of 34
AII
Allthat
that cal Oh mice
calsin or perml
UM/ Of parcelofoftenci
lend,accused
situldoiininWilliriurson
Willitunon County, Taw,out
County, Too; outofefttheJohn
JohnBerry
Berry Survey,
Survey,
So. SISiand
Abstract 14o. andbeing
beingthat
thatTtact
To UUwere*
annoyed to Raymond
to 3itywroo4 A. A. Mom
Mum bybyWirststiy
WarrantyDeer:161ml
Dad doted August
30, 1415
1965 sod recorded
recordedininVolume
Volume 1236,
1231, Pate
Rage2323SSofofthe
the°MVO
OflisidRecords
RecordsofofWilliamson
WilliamsonCountyCountymild
and •
de:scribtdisy
deterited 1)), metes
moo and bounds is asfollows:
follows:
BEGINNING
BEGINNINGuatananIron iconpin
pinfound
foundininthe
the Noah
NorthEno
LinoofofGrove
Oro 'c Lane
1-61,4 foe
far Al
aftSoutheast
S001411; 031110
corner of'Atha teem
that boot
described In a Warr
described to Warranty
nmy Deed
Died totoliJelattrd
Richard A.A. Mites,
Miles,es
c4tins
toydated
datedNovember
NovemberI,I,1914
1964and
andtoo:sided
recorded in
in Votonto
vaturno
109.5, Pest 933
1093, Page 933 of
of said
said ofitelal
ofiteialretards,
words, being the SSouthwest
autirwat comer
comerof of said Mooretract
Kid Moors trap and this hid;
Ind;
THENCE.14N19.29'
THENCE.. li• 29' 00"
00" W W 194.76
194.745
feetfeewith
withthe VIcatlino
theWest linoofofSaid
said144Xee
Maxi tract,
track,being
beingthe ()alioof
thebasis of
bitiriAp
bearingstiled
citedhereon.
hereon,totoenaniron
ironpin
pinfound
foundfor forthe
theNortheast
Northeast miner
corner ofof ea Miles
geld Wes tract
wad Iteitti. the Nocifrwest
being tha Northwest
comet ofofslid
soma },lours end
PM].Loose utd ad'
thistract
trot;
'MENGE'
TifRNCE• N 71' 7 1 - 24' 33"
33" EE 537.19
857,19feet
feettotoen
aniron
Ironpin
pinfound
foundfor
forthe
theNorthwest
Notriteso coma
{cots of that Traci
Tract 1 as
dmeTibed In the
described in the aforementioned
aforementioned Moore WarrantyRoad
MooreWarranty Deedbeing
beingthe
theNortheast
Northeast corner
corner of said
of said Moore
Moore Twill
Tract 11
end this tract;
ond
771
THENCE:
E8CE:along
al"8thethecommon
commontins
lintofOrlaid
mud'Tract
TreatI and Tract 11, S Id* sr
and Trace 53' 47" E 431.43
436,43 fact
fart to an Iron
iron pin
Ccurtd, sari S 0'03'
found, and 0`03' 07"
07" 5E431,03
411,03feet
!Ditto an iron
to Jan pinfound
ironpin found in
in the Northtins
the Neale lineofofail
said Grovo Lane for the
d Grovo
comet
Southwest cum ofofsaid
said Traci1 IarsStroins
Tract and beingthe
theSoutheast corm of said
Southeasteons Tri‘i tI11144
viia Trot IM this
distract;
Wet;
THENCE: 71'14'
THENCE; S 71' 14'02" W699,68
02"W 6908 fistfeet
to the
to place of Begirmins
the pine and conlainin$
of Be8inties 16.6716.67 atrea
end CGX111:1Tt14$ or WEL
etre-1°14nd.
- • • - -----
RECORDERS
RECORDERSMEMORANDUM MEMORANDUM
All or parts ofof the
the text
texton
onthis
thispage
pagewas
was
not clearly
dearly legible for satisfactory
for satisfactory
rtrontatirm
rroortiatim
a
Exhibit "
FILED AND RECORDED
OFFICIAL PUBLIC
PUBLIC RECORDS 2004064127
RECORDS 2004064127
C.1111AN.
O8/13/2004 12:55
08113/2004 12:S8 P11
PM
ALLEN
ALLEN$$60.00
50 .00
NANCY E. RIS
RISTER,
TER , COUNTY
COUNTY CLERK
CLERK
UILLIAMS0N
UILLIAMSoN COUNTY,
COUNTY, TEXAS
TEXAS
•
t. •
24
DC BK14217 PG570
BK14217 PG570
1111111111 11111111111111111E11111111111 2009086302
CAD No.
CAD No.Rn39021
Rfal
Notice of
Notice ofConfidentiality
Confidentialityrights:
rights: If you
if you areare a natural
a natural person,
person, yon you
maymay remove
remove or strike
or strike any ofany
the of the
followinginformation
following Information from
from this
this Instrument
Instrument before
before it is it is filed
filed for record
for record In theinpublic
the public records:
records: your your
social securitynumber
social security numberoror your
your driver's
driver's license
license number.
number.
GENERALWARRANTY
GENERAL WARRANTYDEED
DEED
DATE:
DATE: November 14,
November 14, 2006
2006
GRANTOR:Linda
GRANTOR: Linda Moore,
Moore, a/k/a
a/k/a Linda
Linda R. Moore,
IL Moore, Individually,
Individually. and asand as Independent
Independent Executrix
EXCGUtriX of the of the Estate
Estate of of
RaymondA,
Raymond A.Moore,
Moore,deceased,
deceased,Kathy
Kathy Moore,
Moore, andand Randy
Randy Moore
Moore
GRANTOR'SMAILING
GRANTOR'S MAILINGADDRESS:
ADDRESS:
GRANTEE:David
GRANTEE: DavidR.R.Stem
Stern and
and Pamela
Pamela C. C. Mehl
Mehl
GRANTEE'SMAILING
GRANTEE'S MAILINGADDRESS:
ADDRES ne, Georgetown,
Georgetown, Williamson
Williamson County,
County, TexasTexas
71162678626
CONSIDERATION:
CONSIDERATION:
$10.00 and other
$10.00 and othervaluable
valuableconsideration,
consideration, receipt
receipt of of which
which Is hereby
Is hereby acknowledged,
acknowledged, andthe
and for forpayment
the payment of which
of which no no
lien, either
Lien eitherexpress
expressororImplied,
implied,is is herein
herein retained.
retained.
PROPERTY(including
PROPERTY (includingImprovements):
Improvements):
FEE SIMPLE
FEE SIMPLETITLE TITLEininand andtotothethe perimeter
perimeter description
description of a of
35afoot
35 foot
widewide
road mad containing
containing 5.115 5.115
acres, acres,
approximatelyant-hair
approximately one-halfbeing
being inin the
the M.J. GarciaSurvey,
Mi. Garcia Survey,Abstract
AbstractNo.No. 246,
246, endand one-half
one-half In John
in the DenyDerry
the John Survey,Survey,
AbstractNo.
Abstract No.51,
51,In WilliamsonCounty,
In Williamson County,Texas,
Texas,
andand being
being a part
a pert of8520
of an attetract
an 8520
acre Pittconveyed
conveyedtotoCharles
CharlesPenzler,
Penzler,
tt ux,
et of record
ox, of recordininVolume
Volume420,
420,Page
Page86,86,Deed
Deed Records
Records of Williamson
of Williamson Texas.
County,
County, Texas, and containing
containingall
allofof435
a 35foot
foot
ell shaped
ell shapedstrip
stripdescribed
describedin in a deed
a deed fromfrom
EtnaEtna M. Lindell
M. Lindell and
and A. A. William
William LindellLindell to Charles
to Charles Peneler,railer, dated
dated July 23,July 23,
1968, and
and recorded
recordedIn InVolume
Volume509,509,Page
Page341,
341, Deed
Deed Records
Records of Wit/Lamson
of Williamson County,
County, Texas;Texas; said
said 3S 15road
foot foot being
mad being
more particularly
more particularlydescribed
described
byby metes
metes andand bounds
bounds as follows:
as follows..
BEGINNINGatatthe
BEGINNING thelower
lowerSouthwest
Southwest comer
corner of of
thethe
saidsaid ell shaped
ell shaped stripstrip in North
In the the North lino
line of of County
County Road Road 152, also
152, also
beingthe
being thelower
lowerSouthwest
Southwestcorner
corner
of of a 139.17
a 139.17 acreacre
tracttract described
described in a deed
in a deed to Etna
to Etna MillerMiller end Laura
and Laura Miller,Miller,
dated dared
October of
October of1957;
1957;
'THENCENorth
THENCE North1919degrees
degrees0808 minutes
minutes West
West 66937
669.37 feetfeel to an
to an ell corner
ell corner of the
of the 139,17
139,17 acresacres andellancomer
and an of saidof said
ell comer
tri shaped
ell shapedstrip;
strip;
THENCESouth
THENCE South7171degrees
degrees2020minutes
minutes
3535seconds West
seconds West2527.08
2527.08reel feettotoa apoint
pointononoror near
near thethe upper
upper Southwest
Southwest
cornerofofthe
corner the139.17
139.17acres
acres and
and thethe upper
upper Southwest
Southwest corner
corner of theofalt
theshaped
ell shaped
strip;strip;
THENCE 71
THENCE 71degrees
degrees17 17minutes
minutesWest
West859.01
859.01feet
feet end
and South
South 7171 degrees
degrees 18 18 minutes
minutes 40 seconds
40 seconds WestWest 900,57
900.57 feet feet
with the
with the South
Southline
linoofofthe
thesaid
said85.20
85.20 eery
acre tract,
true as fenced,
as fenced, to antoIron
an iron pinatset
pin set theatSoutheast
the Southeast
cornercorner of a acre
of a 9.983 9.983 acre
vest;
trete
Qtl
exki t51a--r 'c'
25
DC BK14217 PG571
P0571
THENCE
THENCESouth
South7070degrees
degrees57
57minutes
minutes 3030seconds
secondsWest
West100.0
100.0feet
feetandandSouth it degrees
South 32 minutes
71 degrees 40 seconds
32 minutes 40 seconds
West
West 417.53
417.53 feet
feet with
withthetheSouth
Southline
lineofofthe
the85.20
85.20acres
acresand
andthethe
South
Southlineline
of the 9.983
of the acresacres
9.9133 to antoiron pin set
an pin
ironset et
et the
the
Southeast
Southeastcorner
cornerofofa a16.867
16.867acre
acretract;
tract;
THENCE
THENCENorth North1919degrees
degrees0000minutes
minutes4545
seconds West
seconds at 35
West feetfeet
at 35 an iron
pestpast pin on
an iron pinline, continuing
on line, in ail in
continuing 554.29
all 554.29
feel
feet with
with the
thecommon
commonlinelinebetween
betweenthe 16.867
the acre
16.867 Indtact
acre andand
the the
9.983 acreacre
9.983 tracttract
to antoiron
an pin
ironset beside
pin a fencea fence
set beside
corner
cornerpost;
post;
THENCE
THENCENorthNonh2727degrees
degrees3737minutes
minutes4040seconds West
seconds West74.92 to to
74.92 anan
ironiron
pinpin
set in
setthe
in common
the commonline between the the
line between
16.867 AGM
acres and
andthe
the9.983
9.983acres,
acres,and continuing
and continuingwith the the
with same tineline
same in ailin144.54 feet feet
all 144.54 to a to
point on curve
a point with awith a
on curve
radius
radiusof
of80.59;
80.59;
THENCE
THENCEwith withthe
thearc
arcofofthe curve
the to to
curve thethe
right, the the
tight, chard bearsbears
chord SouthSouth
54 degrees 19 minutes
54 degrees East 77.92
19 minutes East feet
77.92to feet
the to the
end
end of
of the
thecurve;
curve;
THENCE
THENCESouth
South27
27degrees
degrees3737minutes
minutes4040
seconds East
seconds 77.55
East feetfeet
77.55 to atopoint;
a point;
THENCE
THENCESouth
South19
19degrees
degrees0000minutes
minutes4545
seconds East
seconds 523.23
East feetfeet
522.28 to atopoint;
a point;
THENCE
THENCENorthNorth7171degrees
degrees 3232minutes
minutes 4040seconds
secondsEast
Fast382.69 feetfeet
382.69 endand
North 70 degrees
North 57 minutes
70 degrees 30 seconds
57 minutes 30 seconds
East
East 99.94
99.94 feet
feetto
tothe
theEast
Eastline ofofthethe
line said 9.983
said Isere
9.983 tract;
acre tract:
THENCE
THENCENorth North7171degrees
degrees1818minutes
minutes4040
seconds East
seconds 900.67
East feetfeet
900.67 andand
North 71 degrees
North 17 minutes
71 degrees East 859.02
17 minutes East 859.02
feet to
to aa point
pointon
onorornear
nearthethe
common lineline
common between thethe
between 85.20 acres
85.20 and and
acres the 139.17 acres;acres;
the 139.17
THENCE
THENCENorth
North7171degrees
degrees2020minutes
minutesEast 2561.53
East feetfeet
2561.53 to the Northwest
to the corner
Northwest of theofell
corner theshaped tract described
ell shaped hi
tract described in
Volume
Volume 509,
509, Page
Page341,
341,Deed
DeedRecords
RecordsofofWiil famson County,
Williamson County, Texas;
Texas;
THENCE
THENCESouth South1919degrees
degrees0909minutes
minutes2020seconds East
seconds 704.70
Fast feet
704.70 toto
feet thethe
Southeast tome
Southeast of theofellthe
corner shaped tract tract
eil shaped
and
and to
to the
theMinh
Northline
lineofofCounty
CountyRoad
Road152;
152;
THENCE
THENCESouth
South71
71degrees
degrees0808minutes
minutes2020
seconds West
seconds 35.0
West feetfeet
35.0 with thethe
with North line line
North of County RoadRoad
of County 152, to theto the
152,
POINT
POINTOF
OFBEGINNING.
BEGINNING.
RESERVATIONS
RESERVATIONSFROM
FROMAND
ANDEXCEPTIONS
EXCEPTIONSTOTO
CONVEYANCE AND
CONVEYANCE WARRANTY:
AND WARRANTY:
conveyance Is
This conveyance Ismade
madeand accepted
acceptedsubject
subjectto:
to:I)1)
allall
restrictions, covenants,
restrictions, conditions,
covenants, rights-of-way
conditions, and and
rights-of-way
assessments
assessmentsififany,
arty,affecting
affectingthethe
above-described
above-described property alas that
property are valid, existing
are valid, and properly
existing of record;
and properly 2) ail 2) all
of record;
easements,
easements,including
includingspecifically
specificallybut without
but withoutlimitation anyany
limitation access, ingress
access, and and
ingress egress, or other
egress, easement
or other granted
easement to
granted to
any
any other
otherperson
personfor
forthe useuse
the ofof
thethe
subject road;
subject andand
road; 3) to3)taxes for the
to taxes foryear
the 2007 and subsequent
year 2007 years. years.
and subsequent
Grantor,
Grantor,for forthe
theconsideration
consideration andandsubject to the
subject to reservations
the reservations front from
and exceptions to conveyance
and exceptions and and
to conveyance
warranty,
warranty,grants,
grants, sells
sells and
andconveys
conveys to to
Grantee the the
Grantee property,
property,together with all
together andallsingular
with the rights
and singular theand
rights and
appurtenances
appurtenancesthereto
thereto in in
anywise
anywise belonging,
belonging,to have andand
to have to hold it to itGrantee,
to hold Grantee's
to Grantee, heirs, executors,
Grantee's heirs. exceutors,
administrators,
administrators,successors
successors and assigns
and assignsforever. Grantor
forever. Grantorhereby bindsbinds
hereby Grantor and Grantor's
Grantor heirs, executors,
and Grantor's heirs, ext.-attars,
administrators,
administrators,successors
successors and assigns
and to warrant
assigns and and
to warrant forever defend
forever all andallsingular
defend the piutmly
and singular to Grantee
the popcity and
to Grantee and
Grantee's
Grantee'sheirs,
heirs,executors
executors administrators,
administrators, successors and and
successors assigns against
assigns everyevery
against person whomsoever
person lawfully
whornsoever lawfully
claiming
claiming or
orto
toclaim
4Iairn thethe
same
sameor or
anyany
panpart
thereof, except
thereof, as toas
except thetoreservations and exceptions
the reservations to conveyance
and exceptions and and
to conveyance
warranty.
warranty.
FILED AND AND RECORDED
RECORDED
OFFICIAL PUBLIC
OFFICIAL PUBLICRECORDS
RECORDS 2013063557
2013063557
CR‘.10,
07/0 8/ 2013 02:10
07/08/2013 02:10PMPM
®
@ ail 1-04, 1Loile Pic
41--1-0,1, Pt.c. CKASEBERG $40.00
CKASEBERG $40.00
NANCYE.
NANCY E. RISTER,
RISTER,COUNTY
COUNTYCLERK
CLERK
WILLIAMSON COUNTY, TEXAS
WILLIAMSON COUNTY, TEXAS
rfulio-tt. 4-Ctita, Tr 1kV ff
AMAA-4-U.
26
APPENDIX
DOCUMENT 2
Amalie Rodriguez-Mendoza
Amelia Rodriguez-Mendoza
District Clerk,Travis
District Clerk, TravisCounty
County
Travis County
Travis County Courthouse
CourthouseComplex
Complex
P.O. Box
Box 679003
679003
Austin,
Austin, Texas
Texas 78767
78767
DATE: August
August05,
05,2014
2014
Filed in The District Court
of Travis County, Texas
SEP 2 3 2014
2011
MEHL PAMELA
MEHL PAMELA
At
At e,Pc01411 M.
Am0:aodriguez-Mendoza,
Amt.todriguez-Mendoza, Clerk
GEORGETOWN,TXTX78626
GEORGETOWN, 78626
/
,,(6
1/4
JUDGMENTFOR
JUDGMENT FORTITLE
TITLE TO
TO REAL ESTATE`AND
REAL ESTATE'' DAMAGES
ND DAMAGES
D-1-GN-14-00207k0'‘
D-1-GN-14-00207
DAVID STERIa.
STERqc
VS.
VS • ohr
PAMELAMR
PAMELA mga,
IL
akeir
You are
arehereby
herebynotified that
notified e
thattS above order
above order has been
has signed
been and and
signed
entered JULY
entered JULY29TH,
29TH,2014 2014 in kJ:le250TH
in 250THJUDICIAL
JUDICIAL DISTRICT COURT
DISTRICT of of
COURT
TravisCounty
Travis Texas
County in thein
Texas ab...fa
the numbered and entitled
abOge numbered cause.
and entitled cause.
RODRIGUEZ-MENDOZ/,‘,
AMALIA RODRIGUEZ-MENDOZS1, NIXIE 787
787 SE 1270
SE 1279 0209/19/1
0209/19/144
District Clerk RETURN
RETURN TO
TO SENDER
UNrL AIMED
UNCL
UNABLE
UNABLE TO
TO FORWARD
BC: 78767900303
8C1 78767900303 * 0893-11822-19-26
IiliI'llii111l~llllll11111111 II Ii l l l ii{ '~ii11i1 I 1111 I 11! 1111
L60 - 000041259
000041259 N. D-1-ON-14-002071
D-I -ON-14-00207 I RT
APPENDIX
DOCUMENT 3
Texas Civil Practice & Remedies Code - Section 15.002.
15.002. Venue:
Venue: General
General Rule
§ 15.002. VENUE: GENERAL RULE. (a) Except as otherwise
provided by this subchapter or Subchapter B or C, all lawsuits shall
be brought:
(1) in the county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2) in the county of defendant's residence at the time
the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant's principal office
in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in
the county in which the plaintiff resided at the time of the accrual
of the cause of action.
(b) For the convenience of the parties and witnesses and in
the interest of justice, a court may transfer an action from a
county of proper venue under this subchapter or Subchapter C to any
other county of proper venue on motion of a defendant filed and
served concurrently with or before the filing of the answer, where
the court finds:
(1) maintenance of the action in the county of suit
would work an injustice to the movant considering the movant's
economic and personal hardship;
(2) the balance of interests of all the parties
predominates in favor of the action being brought in the other
county; and
(3) the transfer of the action would not work an
injustice to any other party.
(c) A court's ruling or decision to grant or deny a transfer
under Subsection (b) is not grounds for appeal or mandamus and is
not reversible error.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from V.T.C.A., Civil Practice & Remedies Code §
15.001 and amended by Acts 1995, 74th Leg., ch. 138, § 1, eff.
Aug. 28, 1995.
APPENDIX
DOCUMENT 4
Texas
Texas Civil
Civil Practice
Practice&&Remedies
RemediesCode
Code- Section
- Section
15.011.
15.011.
Land
Land
§ 15.011. LAND. Actions
Actions forforrecovery
recoveryofofreal
realproperty
property or or
an an
estate or interest
estate in real
or interest in real
property,for
property, forpartition
partition of of real
real property,
property, to remove
to remove encumbrances
encumbrances from from thetotitle
the title realto real property,
property,
for recoveryof
for recovery ofdamages
damagestotoreal real property,
property, orquiet
or to to quiet
titletitle to real
to real property
property shall
shall be be brought
brought in the in the
county inwhich
county in whichall allorora apart
partofof
thethe property
property is located.
is located.
Acts 1985, 69th Leg., ch.
ch. 959
959 (S.B.
(S.B. 797),
797), §2,
§2, effective
effective September
September1,1,1985;
1985;am.
am.Acts 1995, 74"
74th
Leg., ch. 138 (S.B.
(S.B. 32),
32), §2, effective August
August28,28,1995.
1995.
APPENDIX
DOCUMENT 5
Texas
Texas Rules
Rulesof
ofCivil
CivilProcedure
Procedure3939
RULE 39
RULE 39 JOINDER
JOINDEROF
OFPERSONS
PERSONSNEEDED
NEEDEDFOR
FOR
JUST
JUST
ADJUDICTATION
ADJUDICTATION
(a) Persons to Be Joined If Feasible.
Feasible. — — A person
personwho whoisissubject
subjecttotoservice
serviceofofprocess
process shall
shall
be joined
joined asasaaparty
partyininthe
theaction
actionif (I)
if (1)
in his
in his
absence
absence complete
completerelief
relief
cannot
cannot
be accorded
be accorded
among
among those
thosealready
alreadyparties,
parties,oror
(2)(2)
heheclaims
claimsan an
interest
interest
relating
relating
to thetosubject
the subject
of theof the
action and
action andisissososituated
situatedthat
that
thethe
disposition
disposition of the
of the
action
action
in his
in absence
his absence
maymay(i) as(i)a as a
practical matter
practical matterimpair
impair or or
impede
impede his his
ability to protect
ability that interest
to protect or (ii)or
that interest leave
(ii) any
leaveofany
the of the
persons already
persons alreadyparties
partiessubject
subjectto to
a substantial
a substantialriskrisk
of incurring double,
of incurring multiple,
double, or
multiple, or
otherwise inconsistent
otherwise inconsistentobligations
obligationsbyby reason
reason of of
hishis
claimed
claimed interest. If heIfhas
interest. he not
has been so so
not been
joined, the
joined, thecourt
courtshall
shallorder
orderthat he he
that be be
made a party.
made If heIfshould
a party. join as
he should a plaintiff
join but but
as a plaintiff
refuses to
refuses tododoso,
so,he
hemay
maybebemademadea adefendant,
defendant, or,or,
in ainproper
a proper
case,case,
an involuntary
an involuntary
plaintiff.
plaintiff.
(b) Determination by Court Whenever Joinder Not Feasible. — If aa person personas asdescribed
describedinin
subdivision (a)(1)
subdivision (a)(1)——(2)(2)hereof
hereofcannot
cannotbebemademade a party,
a party,
thethe
court
court
shallshall
determine
determine
whetherwhether
in equity
equityand
andgood
goodconscience
consciencethe theaction
action should
should proceed
proceedamong
amongthe the
parties
parties
before
before
it, or it, or
should be
should bedismissed,
dismissed,the
theabsent
absentpersonpersonbeing
beingthus regarded
thus regardedas indispensable. The factors
as indispensable. The factors
to be
be considered
consideredbybythe
thecourt
court include:
include:first, to what
first, extent
to what a judgment
extent a judgmentrendered in the in the
rendered
person's absence
person's absencemight
mightbebeprejudicial
prejudicial to him
to himor those already
or those parties;
already second,
parties; the extent
second, the extent
to which,
which, by
by protective
protectiveprovisions
provisionsinin thethe
judgment,
judgment, by by
the the
shaping
shaping
of relief,
of relief,
or other
or other
measures, the
measures, theprejudice
prejudicecan bebe
can lessened
lessenedor or
avoided;
avoided;third, whether
third, a judgment
whether rendered
a judgment rendered
in the
the person's
person'sabsence
absencewillwillbebeadequate;
adequate; forth, whether
forth, the plaintiff
whether will have
the plaintiff an an
will have
adequate remedy
adequate remedyififthe
theaction
action is is
dismissed
dismissed forfor
non-joinder.
non-joinder.
(c) Pleading Reasons
Reasons forfor NonjoMder.
Nonjoinder. -- A pleading
pleading asserting
assertinga aclaim
claimforfor
relief shall
relief state
shall state
the names,
the names,ififknown
knowntotothe
thepleader,
pleader, of of
anyany
persons
persons
as described
as described
in subdivision
in subdivision
(a)(1)(a)(1)
— (2)— (2)
hereof who
hereof whoarearenot
notjoined,
joined,and
and
thethe
reasons
reasonswhywhy
theythey
are are
not not
joined.
joined.
(d) Exception of Class Actions.
Actions. —
—This
This rule
ruleisissubject
subjecttotothe
theprovisions
provisions
of of
Rule
Rule
42.42.
SOURCE: Federal
Federal Rule
Rule19,
19,with
withtextual
textualchange.
change.
Change by amendment effective
effectiveJanuary
January 1, 1971: The
The rule
rulehas
hasbeen
beencompletely
completelyrewritten
rewritten
to adopt,
adopt,with
withminor
minorchanges,
changes,thethe
provisions of Federal
provisions RuleRule
of Federal 19 as
19amended.
as amended.
PUBLICATION REFERENCES.
PUBLICATION REFERENCES. ——See Texas Litigation Guide, Ch.
See Ch. 12,
12, Pleading
Pleading the
the Parties.
Parties.
See also Civil Practice
Practice &
& Remedies
Remedies Code §§17.001-17.005.