                                                                                                 ACCEPTED
                                                                                             04-15-00127-CV
                                                                                 FOURTH COURT OF APPEALS
                                                                                      SAN ANTONIO, TEXAS
                                                                                         8/7/2015 8:43:48 AM
                                                                                              KEITH HOTTLE
                                                                                                      CLERK

                                      No. 04-15-00127CV

                                 IN THE COURT OF APPEALS                  FILED IN
                                                                   4th COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                    FOR THE 4TH JUDICIAL DISTRICT OF             TEXAS
                                                                   08/7/2015 8:43:48 AM
                                                                     KEITH E. HOTTLE
                                      AT SAN ANTONIO                       Clerk




                            EL CABALLERO RANCH, INC.
                        AND LAREDO MARINE, L.L.C., Appellants
                                               V.
                              GRACE RIVER RANCH, LLC, Appellee


                                        Appealed from
                                   the 218th District Court of
                                    La Salle County, Texas


           MOTION FOR RECONSIDERATION OF ORDER ON
           MOTION FOR EMERGENCY STAY OF TEMPORARY
       INJUNCTION CHALLENGED ON INTERLOCUTORY APPEAL


                                             MOORMAN TATE HALEY
                                             UPCHURCH & YATES, LLP

                                             By:    STEVEN C. HALEY
                                                    State Bar No. 08741900
                                                    207 East Main
                                                    P.O. Box 1808
                                                    Brenham, Texas 77834-1808
                                                    Telephone: (979) 836-5664
                                                    Telecopier: (979) 830-0913
                                                    shaley@moormantate.com




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                              MONTEZ & PATTERSON

                                    John H. Patterson, Jr.
                                    State Bar No. 24027716
                                    Thornton Plaza
                                    508 Thornton, Suite 4
                                    Cotulla, Texas 78014
                                    Telephone: (830) 483-5191
                                    Telecopier: (830) 483-5192
                                    john@montezandpatterson.com

                              JOE RUBIO LAW FIRM

                                    JOE RUBIO
                                    State Bar No. 17362100
                                    1000 Washington St., Ste. 4
                                    Laredo, Texas 78040
                                    Telephone: (956) 712-2223
                                    Telecopier: (956) 712-2225
                                    joerubio@joerubiolawfirm.com

                              Attorneys for Appellee,

                              Grace River Ranch, LLC




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                                        TABLE OF CONTENTS


REFERENCES TO PARTIES................................................................................2
REFERENCES TO RECORD................................................................................2
STATEMENT OF THE CASE ...............................................................................2
STATEMENT OF FACTS ......................................................................................3
  1. Grace River Ranch......................................................................................3
    2.     El Caballero Ranch .....................................................................................3
    3.     7 C’s Ranch ..................................................................................................3
    4.     Common Source of Title of Grace River Ranch, El Caballero Ranch,
           and 7 C’s Ranch .........................................................................................3
    5.     Northerly Grace River Easement ..............................................................7
    6.     Easterly Access Easement ..........................................................................8
    7.     Grace River Easements ..............................................................................9
    8.     Grace River Ranch the Successor Dominant Estate Owner of the
           Grace River Easements .............................................................................9
    9.     El Caballero and Laredo Marine are the Successor Servient Owners
           Under the Grace River Easements .........................................................11
    10. Additional Private and Public Easements Along the Route of the
        Northerly Grace River Easement ...........................................................11
    11. Use of the Northerly Grace River Easement ..........................................13
    12. Use of Easterly Grace River Easement ...................................................16
    13. Grace River Buys Grace River Ranch ....................................................17
    14. Permitting ..................................................................................................17
    15. Grace River Notifies El Caballero That Grace River is the Current
        Owner of the Northerly Grace River Easement ...................................17
    16. Grace River Requests Keys and Access to the Northerly Grace River
        Easement ...................................................................................................17
    17. El Caballero Refuses Access Along the Northerly Grace River
        Easement ...................................................................................................18



                                                           iii

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    18. El Caballero Falsely and Unilaterally Attempted to Terminate the
        Northerly Grace River Easement, the Berry Easement, and the La
        Salle County Easement ............................................................................18
    19. The Original Basis for El Caballero’s Excluding Grace River from the
        Northerly Grace River Easement are Failure of Purpose,
        Abandonment, and Impossibility ...........................................................18
    20. Traditional and No-Evidence Motion for Summary Judgment Filed by
        Grace River...............................................................................................19
    21. El Caballero Files its First Amended Answer ........................................19
    22. Intervention by Laredo Marine ...............................................................20
    23. Grace River’s Traditional and No-Evidence Motion for Summary
        Judgment Heard and Submitted ............................................................20
    24. Court Issues Letter Ruling .......................................................................20
    25. Order Entered ...........................................................................................20
    26. Amended Order Entered ..........................................................................20
    27. Second Traditional and No-Evidence Motion for Summary Judgment
         by Grace River .........................................................................................21
    28. Second Traditional and No-Evidence Motion for Summary Judgment
         Granted .....................................................................................................22
    29. Judge Saxon Retires ..................................................................................22
    30. Judge Saxon Assigned to Stay With This Case ......................................22
    31. Objection to Assignment of Judge Saxon ...............................................22
    32. Motion for Entry of Partial Summary Judgment ..................................22
    33. Partial Summary Judgment .....................................................................23
    34. Interlocutory Appeal.................................................................................25
    35. Motion for Emergency Stay of Temporary Injunction Challenged in
        Interlocutory Appeal ...............................................................................25
    36. Order Granting Emergency Stay ............................................................25
ARGUMENTS AND AUTHORITIES.................................................................25
    1.     Partial Summary Judgment Includes an Interlocutory Permanent
           Injunction Not a Temporary Injunction................................................25
    2.     There Are No Unadjudicated Claims By or Against La Salle County 28
    3.     Grace River and Public Denied Access Without Jusitifcation .............29
                                                          iv

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PRAYER .................................................................................................................29
APPENDIX A .........................................................................................................32




                                                            v

{18705.43065-00396771.DOCX}
                                       TABLE OF AUTHORITIES

Cases

Aloe Vera of America, Inc. v. CIC Cosmetics Int’l Corp., 517
      S.W.2d 433 (Tex. Civ. App. – Dallas 1974, no writ) .......................... 26, 27

Brelsford v. Old Bridge Lake Community Serv. Corp., 784 S.W.2d
      700 (Tex. App. – Houston [14th Dist.] 1989, no writ) ......................... 26, 27
Gensco, Inc. v. Thomas, 609 S.W.2d 650 (Tex. Civ. App. – San
     Antonio 1980, no writ) .................................................................................27

James v. Hubbard, 985 S.W.2d 516 (Tex. App. – San Antonio 1998,
     no pet.)...........................................................................................................27

Kelso v. Thorne, 710 S.W.2d 735(Tex. App. – Corpus Christi 1986,
      no writ.) .........................................................................................................28
Quest Communications Corp. v. AT&T Corp., 245 S.W.3d 334 (Tex.
      2000) ..............................................................................................................27

Young v. Golfing Green, 2012 WL 6685472 (Tex. App. – Dallas
     2012) ....................................................................................................... 26, 28

Statutes

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4)...................................... 25, 28

Rules

Tex. R. Civ. P. Rule 166a(a) ..................................................................................26




                                                            vi

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                                      No. 04-15-00127CV

                                 IN THE COURT OF APPEALS

                    FOR THE 4TH JUDICIAL DISTRICT OF TEXAS

                                      AT SAN ANTONIO


                            EL CABALLERO RANCH, INC.
                        AND LAREDO MARINE, L.L.C., Appellants
                                               V.
                              GRACE RIVER RANCH, LLC, Appellee


                                        Appealed from
                                   the 218th District Court of
                                    La Salle County, Texas


           MOTION FOR RECONSIDERATION OF ORDER ON
           MOTION FOR EMERGENCY STAY OF TEMPORARY
       INJUNCTION CHALLENGED ON INTERLOCUTORY APPEAL


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

        Appellee, Grace River Ranch, LLC respectfully files this, its Motion for

Reconsideration of Order on Motion for Emergency Stay of Temporary Injunction

Challenged on Interlocutory Appeal, in this interlocutory appeal from a Partial

Summary Judgment entered in the 218th District Court of La Salle County, Texas,

the Honorable Stella Saxon, presiding.




{18705.43065-00396771.DOCX}
                                  REFERENCES TO PARTIES

        Appellee, Grace River Ranch, LLC, is sometimes referred to herein simply

as “Grace River.” Appellant, El Caballero Ranch, Inc., is sometimes referred to

herein simply as “El Caballero.” Appellant, Laredo Marine, L.L.C., is sometimes

referred to herein simply as “Laredo Marine.” Intervenor, Robert W. Brittingham,

is sometimes referred to herein simply as “Brittingham.”

                                  REFERENCES TO RECORD

        References to the transcript from the District Court of La Salle County are

referred to as “CR” (Clerk’s Record), or similar reference, followed by the

appropriate Volume and Page number(s). Reference to the Reporter’s Record are

referred to as “RR” followed by the appropriate Volume and Page number(s).

                                 STATEMENT OF THE CASE

        This suit was brought in the trial court by Grace River against El Caballero

and Laredo Marine for declaratory relief, injunctive relief, and damages seeking to

gain access to certain deeded private easements (collectively the “Grace River

Easements”) and a public easement (the “Public Easement”) crossing both El

Caballero Ranch (belonging to El Caballero) and 7 C’s Ranch (belonging to

Laredo Marine).               These easements were and are blocked by locked gates

maintained by both El Caballero and Laredo Marine. Intervenor, Brittingham,

brought suit against El Caballero and Laredo Marine seeking similar relief.


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{18705.43065-00396771.DOCX}
Brittingham has now settled with El Caballero and Laredo Marine gaining

complete access to Brittingham’s similar easement as sought in Brittingham’s Plea

in Intervention.          Additionally, El Caballero and Laredo Marine paid all of

Brittingham’s attorney’s fees.

                                 STATEMENT OF FACTS

        1.       Grace River Ranch. Grace River is the owner of the 6,779.066 acre

“Grace River Ranch” located in La Salle County, Texas. CR I, 38-39, 61-77, 263-

264. Grace River is a Texas limited liability company formed on December 28,

2012 as “Rio Gracia, LLC.” On January 30, 2013, the registered name of Rio

Gracia LLC was changed to “Grace River Ranch, LLC. CR I, 8, 56-60.

        2.       El Caballero Ranch. El Caballero is the owner of at least 9,220.993

acres comprising the “El Caballero Ranch” also located in La Salle County. CR I,

39-40, 81-91, 263-64; CR III, 105-125.

        3.       7 C’s Ranch. Laredo Marine is the owner of a 30,074.41 acre tract

known as the “7 C’s Ranch” located in La Salle and Webb Counties, Texas. CR I,

40-42.

        4.       Common Source of Title of Grace River Ranch, El Caballero

Ranch, and 7 C’s Ranch. The Grace River Ranch, the El Caballero Ranch, and

the 7 C’s Ranch, have a common source of title, being Patrick H. Welder, Jr. The

parent tract was acquired by Patrick H. Welder, Jr. by deed dated January 28, 1963.


                                             3
{18705.43065-00396771.DOCX}
The histories of Grace River Ranch, the El Caballero Ranch, and the 7 C’s Ranch

subsequent to that common source of title appear below in tabular form:

                                          Figure 1.
                              Title History – Grace River Ranch

                        Document                      Date        Reference to
                                                                    Record

            General Warranty Deed, September 6, 1995              CR I, 92-103
            Patrick H. Welder, Jr. to
            John T. Mundy and Sue E.
            Mundy

            Special Warranty Deed, December 17, 2012 CR I, 104-
            John T. Mundy and Sue E.                 112
            Mundy to The Roy and
            Bonnie Goodwin Family
            Ranch Trust (Veda Gwen
            Goodwin Treat and Kelly
            Maxwell Goodwin, as Co-
            Trustees)

            Special Warranty Deed, December 31, 2012 CR I, 61-77
            Veda Gwen Goodwin Treat
            and     Kelly      Maxwell
            Goodwin, Co-Trustees of
            the Roy and Bonnie
            Goodwin Family Ranch
            Trust Dated December 17,
            2012 to Rio Gracia, LLC




                                              4
{18705.43065-00396771.DOCX}
                                          Figure 2.

                              Title History – El Caballero Ranch

                        Document                  Date             Reference to
                                                                   the Record

            Vendor’s Lien Deed, Patrick February 3, 1997       CR I, 113-129
            H. Welder, Jr. to Knight Oil
            Tools, Inc.

            Warranty Deed, Knight Oil       March 30, 1998     CR I, 81-91
            Tools, Inc. to El Caballero
            Ranch, Inc.




                                              5
{18705.43065-00396771.DOCX}
                                       Figure 3.

                              Title History – 7 C’s Ranch

                        Document               Date          Reference to
                                                             the Record

            Warranty Deed, Patrick H. October 6, 1999       CR III, 126-144
            Welder, Jr. to E. J. Cop
            (30,074.41 ac.)

            Warranty Deed, E.J. Cop to March 22, 2000       CR III, 146-164
            Dennis     J.    Wilkerson,
            Trustee (15,000 ac.)

            Warranty Deed, E.J. Cop to March 22, 2000       CR III, 165-191
            Dennis     J.   Wilkerson,
            Trustee, Samuel H. Vester,
            Jr. and Joseph P. Gerlich
            (15,074.41 ac.)

            Warranty       Deed     With March 22, 2000     CR III, 192-222
            Vendor’s Lien, Dennis J.
            Wilkerson, Trustee, Samuel
            H. Vester, Jr., and Joseph P.
            Gerlich to Damon Chouest,
            Inc.

            Correction Warranty Deed April 18, 2011      CR III, 223-258
            With Vendor’s Lien, Dennis (Effective
            J.   Wilkerson,     Trustee, March 22, 2000)
            Samuel H. Vester, Jr. and
            Joseph P. Gerlich to Damon
            Chouest, Inc.

            General Warranty Deed December            18, CR III, 259-295
            With     Assumption   of 2000
            Security       Documents,
            Damon Chouest, Inc. to
            Laredo Marine, L.L.C.



                                           6
{18705.43065-00396771.DOCX}
                                 Title History – 7 C’s Ranch

                        Document                    Date           Reference to
                                                                   the Record

             Correction             General    April 20, 2011    CR III, 105-125
             Warranty     Deed         With    (Effective
             Assumption of          Security   December 18,
             Documents,              Damon     2000)
             Chouest, Inc. to        Laredo
             Maine, L.L.C.

        See also CR I, 42-44.

        5.       Northerly Grace River Easement.            Contemporaneously with the

creation and sale of the present Grace River Ranch by Patrick H. Welder, Jr. on

September 6, 1995, Welder created and granted an “Access Easement Agreement”

for vehicular and pedestrian access in favor of purchasers, John T. Mundy and Sue

E. Mundy, leading from Grace River Ranch over and across Welder’s retained

property inclusive of the present El Caballero Ranch and 7 C’s Ranch and passing

along a prescribed and surveyed route northward from Grace River Ranch toward

FM 624. This Access Easement Agreement provided in pertinent part:

                 (1)      the easement was 80 feet in width;

                 (2)      the access was for vehicular and pedestrian access along the
                          described route of the easement for each owner of the present
                          Grace River Ranch, their employees, agents, and invitees;

                 (3)      no barriers were to be erected to interfere with the free flow of
                          vehicular and pedestrian traffic across the present El Caballero



                                                7
{18705.43065-00396771.DOCX}
                          Ranch and/or 7 C’s Ranch other than gates through which the
                          easement owner might pass without assistance;

                 (4)      the servient owner was to provide the easement owner with all
                          necessary keys to open gates such that all gates could be freely
                          opened and closed without assistance;

                 (5)      the easement was binding upon and inured to the benefit of all
                          subsequent owners of the servient and dominant estates;

                 (6)      the easement could not be subsequently amended except by a
                          writing by the owners of the servient and dominant estates and
                          signed and filed of record in La Salle County;

                 (7)      the easement was appurtenant to the present Grace River
                          Ranch.

(hereinafter the “Northerly Grace River Easement”). CR I, 44-45, 130-146, 263-

264.

        6.       Easterly Access Easement. Contemporaneous with the creation and

sale of the present Grace River Ranch by Patrick H. Welder, Jr. on September 6,

1995, Welder also created and granted an additional “Access Easement

Agreement” for vehicular and pedestrian access in favor of purchasers, John T.

Mundy and Sue E. Mundy, to the present Grace River Ranch over and across

Welder’s retained property inclusive of the present 7 C’s Ranch property and

passing along a described route towards State Highway 44. This second Access

Easement Agreement provided in pertinent part:

                 (1)      the easement was 80 feet in width;



                                               8
{18705.43065-00396771.DOCX}
                 (2)      the access was for vehicular and pedestrian access along the
                          described route of the easement for each owner of the present
                          Grace River Ranch, their employees, agents, and invitees;

                 (3)      no barriers were to be erected to interfere with the free flow of
                          vehicular and pedestrian traffic across the present 7 C’s Ranch
                          property other than gates through which the easement owner
                          might pass without assistance;

                 (4)      the servient owner was to provide the easement owner with all
                          necessary keys to open gates such that all gates could be freely
                          opened and closed without assistance;

                 (5)      the easement was binding upon and inured to the benefit of all
                          subsequent owners of the servient and dominant estates;

                 (6)      the easement could not be subsequently amended except by a
                          writing by the owners of the servient and dominant estates and
                          signed and filed of record in La Salle County, Texas.

                 (7)      The easement was appurtenant to the present Grace River
                          Ranch.

(hereinafter the “Easterly Access Easement”). CR I, 45-46, 263-264; CR III, 296-

308.

        7.       Grace River Easements. The Northerly Grace River Easement and

the Easterly Grace River Easement are herein sometimes collectively referred to as

the “Grace River Easements”.

        8.       Grace River Ranch the Successor Dominant Estate Owner of the

Grace River Easements. Grace River is the successor in title to the dominant

estate of the Grace River Easements per the following chain of title:



                                                9
{18705.43065-00396771.DOCX}
                                      Figure 4.
                Grace River Easements Title History (Dominant Estate)

                      Instrument               Date       Reference to the
                                                              Record

         Access Easement Agreement         September 6,   CR I, 130-146
           (Northerly), Patrick H.             1995
         Welder, Jr. to John T. Mundy,
                      et ux

         Access Easement Agreement         September 6,   CR III, 296-308
         (Easterly), Patrick H. Welder,        1995
          Jr. to John T. Mundy, et ux

         Special Warranty Deed, John      December 17,    CR I, 101-112
         T. Mundy and Sue E. Mundy           2012
         to Roy and Bonnie Goodwin
          Family Ranch Trust (Veda
           Gwen Goodwin Treat and
          Kelly Maxwell Goodwin, as
         Co-Trustees) The Grace River
           Easements were expressly
            conveyed as part of this
                 transaction.

         Special Warranty Deed, Veda      December 31,    CR I, 61-77
           Gwen Goodwin Treat and            2012
         Kelly Maxwell Goodwin, Co
            Trustees of the Roy and
           Bonnie Goodwin Family
         Ranch Trust of December 17,
         2012 to Rio Gracia, LLC. The
         Grace River Easements were
         expressly conveyed as part of
                this transaction.

        See also CR I, 46-47.



                                          10
{18705.43065-00396771.DOCX}
        9.       El Caballero and Laredo Marine are the Successor Servient

Owners Under the Grace River Easements. El Caballero, as the owner of the El

Caballero Ranch, is the successor in title to that part of the servient estate

encumbered by the Northerly Grace River Easement and lying within the El

Caballero Ranch per the chain set out in Figure 2. Laredo Marine, as the owner of

the 7 C’s Ranch, is the successor in title to that part of the servient estate

encumbered by both the Northerly Grace River Easement and the Easterly Grace

River Easement and lying within 7 C’s Ranch per the chain of title set out in

Figure 3.

        All vesting deeds into El Caballero and Laredo Marine, and their

predecessors in title, made after September 6, 1995 (the date the Grace River

Easements were created), are expressly made subject to the Northerly Access

Agreement, the Easterly Access Agreement, and the Public Easement (as

applicable). CR I, 10, 81-91, 113-129; CR III, 105-125, 126-144, 146-164, 165-

191, 192-222, 223-258, 259-295.

        10.      Additional Private and Public Easements Along the Route of the

Northerly Grace River Easement. The Northerly Grace River Easement is non-

exclusive. Additional parties have valid public and/or private easements along the

route of the Northerly Grace River Easement and across El Caballero Ranch and




                                         11
{18705.43065-00396771.DOCX}
the 7 C’s Ranch, which easements were originally created by the following

instruments:

                                         Figure 5.

                         Additional Public and/or Private Easements
                         Along the Northerly Grace River Easement

                      Instrument                  Date        Reference to the
                                                                  Record
         Access Easement Agreement, March 31, 1995            CR I, 157-173
         Patrick H. Welder, Jr. to Jim
         Berry     and   Bob     Berry
         (hereafter    the      “Berry
         Easement”)
         (now owned by Brittingham)
         Vendor’s Lien Deed, Patrick February 3, 1997 CR I, 113-129
         H. Welder, Jr. to Knight Oil
         Tools, Inc. (hereafter the
         “Welder Easement”)       This
         instrument expressly retained
         an access easement in favor of
         Patrick H. Welder, Jr.

         Right-of-Way Deed, Ruth February 3, 1939             CR I, 174-177
         Bradley Watkins, Individually
         and as Independent Executor
         of the Will and Estate of
         Griffin Watkins, Deceased, et
         al to G.A. Welhausen, County
         Judge, La Salle County, Texas
         (the “Public Easement”).

See also CR I, 47-48.

These additional easements have not been subsequently revoked, released, or

terminated.

                                             12
{18705.43065-00396771.DOCX}
        11.      Use of the Northerly Grace River Easement. After the creation and

recordation of the Northerly Grace River Easement in favor of John T. Mundy and

Sue E. Mundy (hereinafter collectively “Mundy”), Mundy extensively used the

Northerly Grace River Easement for access to the Grace River Ranch (then the

Mundy Ranch). Mundy was originally supplied with a key to all gates across the

Northerly Grace River Easement by Patrick H. Welder, Jr. The Northerly Grace

River Easement crossed the Nueces River over a low water crossing originally

constructed by La Salle County decades prior to Mundy’s easement on a public

road (the “Public Easement”) along the same path as the Northerly Grace River

Easement (hereafter called the “Low Water Crossing”).

        On February 3, 1997, Knight Oil Tools acquired the current El Caballero

Ranch by Vendor’s Lien Deed made expressly subject to the Northerly Grace

River Easement, the Berry Easement, and the Public Easement. Knight Oil Tools,

Inc. then conveyed the El Caballero Ranch to a related entity, El Caballero, on

March 30, 1998 also expressly subject to the same preexisting easements.

        Eddie Knight, a principal of both Knight Oil Tools, Inc. and El Caballero

Ranch supplied Mundy with keys to a new gate lock placed by Knight Oil Tools/El

Caballero Ranch along the route of the Northerly Grace River Easement. Later

Knight Oil Tools/El Caballero Ranch supplied a second and updated key to a

replacement lock along the route of the Northerly Grace River Easement. Mundy


                                          13
{18705.43065-00396771.DOCX}
continued to make extensive use of the Northerly Grace River Easement for access

and egress to the Mundy Ranch.

        Sometime thereafter, there was a washout of 65 feet of the southern

approach to the decades old Low Water Crossing. The majority of the span of the

Low Water Crossing remains intact. This washout limited the use of the Northerly

Grace River Easement as a through way to FM 624 by Mundy while Mundy

waited for the repair of the Low Water Crossing. Crossing the Nueces River

required a 4WD vehicle thereafter. Mundy temporarily limited Mundy’s travel

along the entirety of the Northerly Grace River Easement for this reason only.

Mundy mostly utilized alternative access. However, there was no change in the

road that indicated to Mundy that any party was attempting to deny Mundy the use

of the Northerly Grace River Easement as it crossed either the El Caballero Ranch

or the 7 C’s Ranch. There were no visual indications on the road that either

servient owner then failed to recognize the continuity of the Northerly Grace River

Easement. Nothing about the gates or road indicated any change in circumstances.

Nothing indicated that Mundy’s key was no longer valid to access the road.

Neither El Caballero nor Laredo Marine repudiated the easement to Mundy.

Mundy never intended to nor did Mundy relinquish Mundy’s right to use the

Northerly Grace River Easement after the washout. No one connected with El

Caballero Ranch or 7 C’s Ranch ever challenged Mundy’s right to use the


                                        14
{18705.43065-00396771.DOCX}
Northerly Grace River Easement. Mundy would have vigorously opposed any

such effort.

        The Northerly Grace River Easement also crosses the present 7 C’s Ranch

between Grace River Ranch and the Nueces River to the north along the route

described in the Northerly Grace River Easement. During the time that Damon

Chouest, Inc. and Laredo Marine, L.L.C. owned the 7 C’s Ranch, they had a Ranch

Manager running operations named Chad Edwards. During this period, all gates

lying along the Northerly Grace River Easement on the 7 C’s Ranch were taken

down and/or unlocked except one new gate lying several hundred yards south of

the Nueces River. This gate was kept locked with a lock requiring a key. Mundy

was originally provided with a duplicate copy of this key by Chad Edwards after

the southern approach to the Low Water Crossing washed out in anticipation of its

later use. At all times while Mundy and Mundy-related entities owned the Grace

River Ranch, Mundy had the use of the Northerly Grace River Easement. Mike

Treat, a caretaker for the Mundy Property, utilized the 7 C’s Ranch portion of the

Northerly Grace River Easement several times a year each year for the period

extending between 2000 and 2013. No one connected with 7 C’s Ranch ever

disputed that use. CR I, 81-91, 113-129, 130-146, 178-183, 184-189, 263-264,

273-278, 279-280; CR II, 1; CR III, 310-314.




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{18705.43065-00396771.DOCX}
        12.      Use of Easterly Grace River Easement. After the creation and

recordation of the Easterly Grace River Easement in favor of Mundy, Mundy

extensively used the Easterly Grace River Easement for access to the Grace River

Ranch (then the Mundy Property). The Easterly Grace River Easement provided

access to the Mundy Ranch from an easterly direction across the present 7 C’s

Ranch Property.               This was one of the preferred routes to reach the Ranch

convenient to Mundy. There was a locked gate where the Easterly Grace River

Easement entered the present 7 C’s Ranch. Mundy maintained Mundy’s own lock

on this gate to allow them to come and go along the Easterly Grace River

Easement. During the entire time of Mundy’s ownership of the Ranch, no one

connected with any of the owners of the present 7 C’s Ranch ever attempted to

restrict or prohibit Mundy’s use of the Easterly Grace River Easement. Mundy

used it frequently and without protest from anyone. No one connected with the

ownership of 7 C’s Ranch ever challenged Mundy’s right to use the Easterly Grace

River Easement for as long as Mundy owned the Ranch. If they had, Mundy

would have vigorously opposed any such effort. Representatives of Grace River

Ranch have used the Easterly Access Easement freely since Grace River purchased

the Grace River Ranch without complaint or opposition by anyone connected with

7 C’s Ranch. CR I, 53, 178-183, 184-189, 263-64; CR III, 105-125, 310-314.




                                               16
{18705.43065-00396771.DOCX}
        13.      Grace River Buys Grace River Ranch. On December 31, 2012

Grace River bought the Grace River Ranch and appurtenant easements, inclusive

of the Grace River Easements. CR I, 49, 61-77.

        14.      Permitting. Grace River then obtained all necessary governmental

permitting and easements from the General Land Office of Texas (GLO) and the

U.S. Army Corps of Engineers to repair and utilize the Low Water Crossing.

        The GLO has now issued a Miscellaneous Easement to Grace River for the

Nueces River Crossing. The Miscellaneous Easement was applied for and issued

in complete conformity with the statutes and regulations governing such

easements. The GLO issued the Miscellaneous Easement in the public interest

notwithstanding objection by El Caballero and Laredo Marine. The GLO has no

plans to revoke, suspend, or modify the Miscellaneous Easement. CR I, 14-15; CR

II 23-55; CR III, 2-33, 34-102.

        15.      Grace River Notifies El Caballero That Grace River is the

Current Owner of the Northerly Grace River Easement. In February, 2013

Grace River notified El Caballero that Grace River was the current owner of the

Northerly Grace River Easement. CR I, 49, 256-257, 258-260.

        16.      Grace River Requests Keys and Access to the Northerly Grace

River Easement. Beginning February 22, 2013, Grace River requested keys and




                                          17
{18705.43065-00396771.DOCX}
access to the Northerly Grace River Easement as it traverses El Caballero Ranch.

CR I, 49, 258-260, 261-262.

        17.      El Caballero Refuses Access Along the Northerly Grace River

Easement. In response to requests by Grace River for access along the Northerly

Grace River Easement, El Caballero refused any access along the easement. CR I,

50, 190-193, 194-195, 268-270; CR II, 5-16.

        18.      El Caballero Falsely and Unilaterally Attempted to Terminate the

Northerly Grace River Easement, the Berry Easement, and the La Salle

County Easement. In direct response to Grace River’s request for access, on or

about March 5, 2013, El Caballero attempted to falsely and unilaterally terminate

the Northerly Grace River Easement, the Berry Easement (now owned by

Intervenor, Robert W. Brittingham), and the Public Easement by recording in the

Official Records of La Salle County, a “Notice of Revocation and Termination of

Easement and Access Easement Agreements” by claims of abandonment, failure of

purpose, and impossibility.       Prior to that date neither El Caballero nor its

predecessors in title had taken an action to cancel or repudiate the Northerly Grace

River Easement. CR I, 50, 196-255. This suit followed shortly thereafter.

        19.      The Original Basis for El Caballero’s Excluding Grace River

from the Northerly Grace River Easement are Failure of Purpose,

Abandonment, and Impossibility. The original basis of El Caballero’s refusal to


                                          18
{18705.43065-00396771.DOCX}
allow use of the Northerly Grace River Easement was failure of purpose,

abandonment, and impossibility. El Caballero’s initial legal position, long since

abandoned, was that Grace River could not secure the necessary permitting to

rebuild the Low Water Crossing. CR I, 190-193, 196-255, 268-270; CR II, 17-22.

        20.      Traditional and No-Evidence Motion for Summary Judgment

Filed by Grace River. On July 18, 2013, Grace River filed in the trial court its

Traditional and No-Evidence Motion for Summary Judgment to determine and

declare the validity of the Northerly Grace River Easement and of the public

roadway along the route of the Northerly Grace River Easement based on the

original failure of purpose, abandonment, and impossibility defenses raised to El

Caballero. This Motion was set for hearing before the Court on September 26,

2013. Second Supplemental CR I, 426; Second Supplemental CR II, 55.

        21.      El Caballero Files its First Amended Answer.      On or about

September 18, 2013 approximately seven days prior to the scheduled hearing on

the above Traditional and No-Evidence Motion for Summary Judgment, El

Caballero filed in the trial court its First Amended Answer, Defenses &

Counterclaim (the “Amended Answer”).         The Amended Answer raised the

additional defense of adverse possession under TEX. CIV. PRAC. & REM. CODE

ANN. § 16.026. Second Supplemental CR I, 427-433.




                                       19
{18705.43065-00396771.DOCX}
        22.      Intervention by Laredo Marine. On that same day, September 18,

2013, Laredo Marine filed in the trial court its Original Petition in Intervention and

Counterclaim contesting the validity of the Northerly Grace River Easement and

the public road running along the path of the Northerly Grace River Easement on

grounds of abandonment, failure of purpose, and adverse possession/limitations.

Second Supplemental CR I, 433-438.

        23.      Grace River’s Traditional and No-Evidence Motion for Summary

Judgment Heard and Submitted. The Traditional and No-Evidence Motion for

Summary Judgment filed by Grace River was heard by the Court on September 26,

2013. The Motion was extensively and exhaustively argued and briefed by the

Parties. Second Supplemental CR II, 55.

        24.      Court Issues Letter Ruling. On or about June 12, 2014, the Court

entered its letter ruling that was granting the Traditional and No-Evidence Motion

for Summary Judgment of GRACE RIVER. Second Supplemental CR II, 8-9.

        25.      Order Entered. Over eight months after the hearing date, on July 7,

2014, the Court entered its Order Granting Traditional and No-Evidence Motion

for Summary Judgment in favor of Grace River. Second Supplemental CR II, 10-

13.

        26.      Amended Order Entered. On August 4, 2014, the Court entered its

First Amended Order Granting Traditional and No-Evidence Motion for Summary


                                           20
{18705.43065-00396771.DOCX}
Judgment in favor of Grace River. The Court by its First Amended Order Granting

Traditional and No-Evidence Motion for Summary Judgment found as follows:

                 1. Private Easement. GRACE RIVER RANCH, LLC (GRACE
                    RIVER) has a valid and subsisting non-exclusive express easement
                    across El Caballero Ranch for vehicular and pedestrian access to
                    and egress from Grace River Ranch along that part of the Grace
                    River Easement lying within El Caballero Ranch, with the right to
                    use and maintain the road thereon and any culverts, low water
                    crossings, or bridges lying along the Grace River Easement which
                    has not been abandoned, become impossible, or relinquished, or
                    failed of its purpose.

                 2. Public Road. There is a valid and subsisting express public road
                    across El Caballero Ranch along the route and of the width
                    described in the County Road Easement for that part of the County
                    Road Easement lying within El Caballero Ranch which public road
                    has not been abandoned or relinquished by La Salle County,
                    become impossible, or failed of its purpose. Second Supplemental
                    CR II, 55-57.

        The trial court’s order was expressly made interlocutory. It made no attempt

to adjudicate claims filed after the filing date of the original Motion.

        27.      Second Traditional and No-Evidence Motion for Summary

Judgment by Grace River.            Grace River then filed its Second Motion for

Traditional and No-Evidence Motion for Summary Judgment seeking summary

judgment on the additional issues and against the additional parties raised and/or

intervening after the filing of the original Motion (as granted by the Court on July

7, 2014 and again on August 4, 2014) and pertaining to all matters concerning the




                                           21
{18705.43065-00396771.DOCX}
validity and continuity of the Grace River Easements and the Public Easement.

This was heard on September 18, 2014. CR I, 1-280; CR II, 1-55; CR III, 1-408.

        28.      Second Traditional and No-Evidence Motion for Summary

Judgment Granted. On December 17, 2014, Judge Saxon issued her letter ruling

that the Second Traditional and No-Evidence Motion for Summary Judgment of

Grace River was granted. CR V, 166.

        29.      Judge Saxon Retires. Judge Saxon retired effective December 31,

2014. Grace River sent to Judge Saxon a proposed Partial Summary Judgment

consistent with her letter ruling prior to this date. However, no formal order was

entered prior to Judge Saxon’s retirement date.

        30.      Judge Saxon Assigned to Stay With This Case. On January 6,

2015, Presiding Judge for the Fourth Administrative Region, David Peeples,

assigned Judge Saxon to this case. CR V, 169.

        31.      Objection to Assignment of Judge Saxon. On January 9, 2015, El

Caballero and Laredo Marine both filed their Objection to Assignment of Visiting

Judge objecting to Judge Saxon’s assignment to this case. CR V, 170-171.

        32.      Motion for Entry of Partial Summary Judgment. Pursuant to a

Motion for Entry of Partial Summary Judgment filed by Grace River, a hearing

was conducted by Judge Saxon on March 3, 2015. RR, 3.




                                         22
{18705.43065-00396771.DOCX}
        33.      Partial Summary Judgment. At the conclusion of the March 3,

2015 hearing, Judge Saxon entered a Partial Summary Judgment making a final

determination of all issues relating to the validity, continuity, and extent of the

Grace River Easements and the Public Easement. CR V, 285. The only claims

remaining unadjudicated after March 3, 2015 were:

                 (1.)     All damage claims by Grace River against El Caballero and
                          Laredo Marine by reason of the disruption or blocking of the
                          Grace River Easements and the La Salle County Easement.

                 (2.)     All claims for attorney’s fees and costs. CR V, 285.

        The Partial Summary Judgment made a final determination of all issues

relating to the validity, continuity, and extent of the Grace River Easements and the

Public Easement as follows:

                 (1.)     Private Easement. Grace River has valid and subsisting non-
                          exclusive express easements across El Caballero Ranch, 7 C’s
                          Ranch, and the Nueces River Crossing for vehicular and
                          pedestrian access to and egress from Grace River Ranch along
                          that part of the Grace River Easements lying within El
                          Caballero Ranch, 7 C’s Ranch, and/or the Nueces River
                          Crossing with the right to use and maintain the road thereon and
                          any culverts, low water crossings, or bridges lying along the
                          Grace River Easement in conformity with the rights and
                          privileges and subject to the requirements set out in the Grace
                          River Easements and the Miscellaneous Easement.

                 (2.)     Public Road. There is a valid and subsisting public road across
                          El Caballero Ranch, 7 C’s Ranch, and Nueces River Crossing
                          along the route and of the width described in the County Road
                          Easement for that part of the County Road Easement lying
                          within El Caballero Ranch, 7 C’s Ranch, and the Nueces River
                          Crossing. CR V, 284.

                                               23
{18705.43065-00396771.DOCX}
        The Partial Summary Judgment, after finally determining all issues

regarding the existence of the Grace River Easements and the Public Easement

permanently enjoined El Caballero and Laredo Marine as follows:

        1. Private Easements. El Caballero and Laredo Marine are enjoined from:

                 (a.)     Erecting or maintaining any barriers, fences, or gates of any
                          kind that would interfere with or obstruct the free flow of
                          vehicular or pedestrian access, on, over, or across the Grace
                          River Easements other than gates currently located on El
                          Caballero Ranch or 7 C’s Ranch. All such gates must be
                          maintained and/or secured such that Grace River may pass
                          through them without assistance. Laredo Marine shall remove
                          the fence along the Northerly Grace River easement and located
                          within 7 C’s Ranch within 30 days of the date entry of this
                          Partial Summary Judgment.

                 (b.)     Maintaining any gate or barrier along or across the Grace River
                          Easements without providing all necessary keys, combinations,
                          or codes to GRACE RIVER to open such gates without
                          assistance. Such keys, combinations, or codes are to be
                          delivered to Grace River not later than 3 days from the entry
                          hereof, and prior to an installation of any future rekeyed,
                          reconfigured, or recoded lock.

                 (c.)     Taking any action to prevent Grace River from freely opening
                          and closing any gates in the Grace River Easements without
                          assistance.

                 (d.)     Preventing or obstructing Grace River from using, having
                          access across, or undertaking the maintenance or repair of the
                          roadway, bridges, low water crossings, culverts, grades,
                          trimming, etc. along the Grace River Easements and Nueces
                          River Crossing.




                                               24
{18705.43065-00396771.DOCX}
        2. Public Road. El Caballero and Laredo Marine are permanently enjoined

              from:

                 (a.)     Preventing or obstructing maintenance or repair of the roads,
                          bridges, culverts, grades, or low water crossings lying along the
                          County Road Easement. CR V, 284-285.

        34.      Interlocutory Appeal.        From the Partial Summary Judgment, El

Caballero and Laredo Marine have erroneously brought this Interlocutory Appeal

pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (appeal of grant of

temporary injunction). CR V, 287-294.

        35.      Motion for Emergency Stay of Temporary Injunction Challenged

in Interlocutory Appeal.            On March 11, 2015, Appellants filed herein their

Motion for Emergency Stay of Temporary Injunction Challenged in Interlocutory

Appeal.

        36.      Order Granting Emergency Stay. On March 12, 2015, this Court

granted the emergency stay requested by Appellants staying the injunctive relief

granted by the Partial Summary Judgment and denying access by Grace River to

the public and private easements determined to exist in Grace River’s favor by the

Court below.

                              ARGUMENTS AND AUTHORITIES

        1.       Partial Summary Judgment Includes an Interlocutory Permanent

Injunction Not a Temporary Injunction. Appellants’ Motion for Emergency


                                               25
{18705.43065-00396771.DOCX}
Stay of Temporary Injunction Challenged in Interlocutory Appeal (the “Motion”)

is based on the unsupported misconception that the Partial Summary Judgment,

because interlocutory, is a “temporary injunction.”           See, Motion at 1-10.

Appellants misapprehend the law and the state of the record. An interlocutory

judgment may contain a permanent injunction. See Young v. Golfing Green, 2012

WL 6685472 at *1 (Tex. App. – Dallas 2012); Aloe Vera of America, Inc. v. CIC

Cosmetics Int’l Corp., 517 S.W.2d 433, 436 (Tex. Civ. App. – Dallas 1974, no

writ); Brelsford v. Old Bridge Lake Community Serv. Corp., 784 S.W.2d 700, 701-

02 (Tex. App. – Houston [14th Dist.] 1989, no writ).

        The Partial Summary Judgment makes it clear that the trial court intended to

issue a permanent injunction. The Court expressly stated that the Partial Summary

Judgment decided all claims of the Parties relating to the validity, continuity, and

extent of the easements and leaving only damage claims for later adjudication. CR

V, 285. Because the damage claims presented genuine issue of fact, the trial court

rendered interlocutory relief as expressly authorized by Tex. R. Civ. P. Rule

166a(a). The injunction does not contemplate any further order of the court or

have any time limitations on its application. CR V, 284-285. There was no trial

necessary to resolve the merits of Grace River’s easement claims.

        The true character of an injunction is to be determined by its characteristics

and functions. Gensco, Inc. v. Thomas, 609 S.W.2d 650, 651 (Tex. Civ. App. –


                                          26
{18705.43065-00396771.DOCX}
San Antonio 1980, no writ); James v. Hubbard, 985 S.W.2d 516, 518 (Tex. App. –

San Antonio 1998, no pet.) Whether an injunction is temporary or permanent is

determined by looking at the substance of the order. Gensco v. Thomas, supra at

651. The purpose of a temporary injunction is to preserve the status quo pending a

final hearing to determine the merits. Id. However, conversely, a permanent

injunction is not dependent on any further action on the merits by the trial court.

Id. A permanent injunction grants all relief the trial court intends to grant on that

subject matter. Id. This is clearly the case with the Partial Summary Judgment. It

expressly and finally resolves the merits of the easement claims. It also grants the

injunctive relief necessary to allow Grace River to make effective use of its

property rights. No more permanent order could be made with respect to Grace

River’s claims for injunctive relief than the trial court made. Id. The Partial

Summary Judgment is an interlocutory order granting a permanent injunction.

Because the trial court’s order grants a permanent injunction, it is not a “temporary

injunction” as represented in the Motion. See Quest Communications Corp. v.

AT&T Corp., 245 S.W.3d 334, 336 (Tex. 2000); Brelsford v. Old Bridge Lake

Community Serv. Corp., 784 S.W.2d 700, 702 (Tex. App. – Houston [14th Dist.]

1989, no writ); Aloe Vera of America, Inc. v. CIC Cosmetics Int’l Corp., 517

S.W.2d 433, 436-37 (Tex. Civ. App. – Dallas 1974, no writ); Young v. Golfing

Green Homeowners Ass’n, Inc., 2012 WL 6685472 at *1 (Tex. App. – Dallas


                                         27
{18705.43065-00396771.DOCX}
2012); Kelso v. Thorne, 710 S.W.2d 735, 736-37 (Tex. App. – Corpus Christi

1986, no writ.). In the absence of a temporary injunction, there is no jurisdiction to

support the present interlocutory appeal or the emergency stay. Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a)(4).

        2.       There Are No Unadjudicated Claims By or Against La Salle

County. Appellants suggest by the Motion that there exists ongoing litigation to

determine whether valid public and private easements exist. Motion at n. 1, 3.

This misapprehends the record.        The trial court has already made its final

determination of all issues related to the validity, continuity, and extent of the

public and private easements. CR V, 285.

        Appellants suggest by the Motion that other [unidentified] claims and parties

still remain pending including claims against the County of La Salle. Motion at 3.

Although not disclosed by the Motion, La Salle County filed below its Plea to the

Jurisdiction claiming that the county was immune from Appellants’ third party

claims on the basis of sovereign immunity. That Plea to the Jurisdiction was

granted on July 27, 2015. Order – Plea to the Jurisdiction. Refer to Appendix A.

Grace River has recently supplemented the record with this order. La Salle County

is no longer a party in the suit below. Nor does the County have any pending

affirmative claims either by or against it.




                                          28
{18705.43065-00396771.DOCX}
        3.       Grace River and Public Denied Access Without Jusitifcation.

Appellants have persistently denied Grace River and the public use of deeded,

recorded, and fully adjudicated easements for 2½ years having posted no bond or

security against their high-handed self help. Rather than demonstrating a right or

entitlement, Appellants have lost on summary judgment every substantive basis by

which they have attempted to justify their actions.           A third full year is fast

approaching with Grace River and the public being wrongfully locked off of the

road. Appellants have unilaterally misappropriated public and private property

rights to their own ends attempting to create by this means a despotic fiefdom

imperiously unanswerable to and unmindful of the orders of the trial court. At last

count, Appellants have now filed four separate causes in this Court alone to delay

Grace River and the public in the enjoyment of their respective rights. Every day

that Appellants are allowed to deny this road without legal justification is another

victory in a purposeful campaign of delay and obfuscation.

                                           PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellee prays that Order

staying the injunctive relief of the Partial Summary Judgment be in all things

withdrawn.

        Dated:            August 7, 2015

                                            Respectfully submitted,


                                              29
{18705.43065-00396771.DOCX}
                              MOORMAN TATE HALEY
                               UPCHURCH & YATES, L.L.P.

                              By:     /s/ STEVEN C. HALEY
                                     STEVEN C. HALEY
                                     State Bar No. 08741900
                                     207 East Main
                                     P.O. Box 1808
                                     Brenham, Texas 77834-1808
                                     Telephone: (979) 836-5664
                                     Telecopier: (979) 830-0913
                                     shaley@moormantate.com

                              MONTEZ & PATTERSON

                                     John H. Patterson, Jr.
                                     State Bar No. 24027716
                                     Thornton Plaza
                                     508 Thorton, Suite 4
                                     Cotulla, Texas 78014
                                     Telephone: (830) 483-5191
                                     Telecopier: (830) 483-5192
                                     john@montezandpatterson.com

                              JOE RUBIO LAW FIRM

                                     JOE RUBIO
                                     State Bar No. 17362100
                                     1000 Washington St., Ste. 4
                                     Laredo, Texas 78040
                                     Telephone: (956) 712-2223
                                     Telecopier: (956) 712-2225
                                     joerubio@joerubiolawfirm.com

                              Attorneys for Appellee,

                              Grace River Ranch, LLC




                                30
{18705.43065-00396771.DOCX}
                              CERTIFICATE OF SERVICE

      I, Steven C. Haley, do hereby certify that on the 7th day of August, 2015, I
served a true and correct copy of the foregoing pleading to the following, in
accordance with the Texas Rules of Civil Procedure:

        Annalyn G. Smith
        Schmoyer Reinhard, LLP
        17806 I-10W, Ste. 400
        San Antonio, Texas 78257
        E-mail: asmith@ar-llp.com

        Kimberly S. Keller
        Keller Stolarczyk PLLC
        234 West Bandera Road, No. 120
        Boerne, Texas 78006
        E-mail: kim@kellsto.com

        Donato D. Ramos
        Donato D. Ramos, Jr.
        Law Offices of Donato D. Ramos
        6721 McPherson
        P.O. Box 452009
        Laredo, Texas 78045
        donatoramosjr@ddrlex.com


                                               /s/ STEVEN C. HALEY
                                                   STEVEN C. HALEY




                                         31
{18705.43065-00396771.DOCX}
                              APPENDIX A




                                  32
{18705.43065-00396771.DOCX}
                                                                                     bt.;AN =Ur
                                    CAUSE NO. 13-04-00108-CVL

GRACE RIVER RANCH, LLC                                                     IN THE DISTRICT COURT

V.

EL CABALLERO RANCH, INC. A/K/A
EL CABALLERO, LLC AND LAREDO                                              218th JUDICIAL DISTRICT
MARINE, L.L.C.

V.

COUNTY OF LA SALLE                                                      LASALLE COUNTY, TEXAS

                            ORDER — PLEA TO THE JURISDICTION

       On April 1, 2015, came on for hearing the Plea to the Jurisdiction filed herein by Third Party

     Defendant COUNTY OF LA SALLE ("La Salle County"). Plaintiff GRACE RIVER RANCH,

     LLC, Defendants/Third Party Plaintiffs EL CABALLERO RANCH, INC. a/k/a EL

     CABALLERO, LLC and LAREDO MARINE, LLC, (collectively "El Caballero"), and Third

     Party Defendant La Salle County each appeared by and through counsel.

       The Court having considered the pleadings, arguments and evidence presented, SUSTAINS

     the Plea to the Jurisdiction. All claims for relief of El Caballero against La Salle County are

     dismissed.

       Rendered and Signed July 27, 2015.



     Judge Presiding




                                                                     RGARITA A. ESQUE?
                                                                  •IANITY & DISTRICT C
                                                                  LA SALLE MAT% TEXAS
                                                                 fff            DEPUTY




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