                                                                                   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.
