                                                                                          ACCEPTED
                                                                                      03-14-00697-CV
                                                                                              6167008
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                7/21/2015 11:17:34 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                               No. 03-14-00697-CV

                                                                     FILED IN
                                                              3rd COURT OF APPEALS
                           In The Court of Appeals                 AUSTIN, TEXAS
                    For The Third Court of Appeals District   7/21/2015 11:17:34 PM
                                Austin, Texas                     JEFFREY D. KYLE
                                                                       Clerk




                                   PAMELA MEHL,
                                     Appellant

                                      v.

                                   DAVID STERN,
                                     Appellee



             ON APPEAL FROM THE 250TH DISTRICT COURT
                     TRAVIS COUNTY, TEXAS
             TRIAL COURT CAUSE NO. D-1-GN-14-002071


                    BRIEF OF APPELLEE DAVID STERN



Brent A. Devere (Lead Counsel)
Attorney at Law
SBN 00789256
1411 West Avenue, Suite #200
Austin, Texas 78701
Tel: 512-457-8080
Fax: 512-457-8060
Email: BDevere@1411west.com

Counsel for Appellee David Stern
                           TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………....................iii-iv

STATEMENT OF THE CASE………………………………………………1

STATEMENT REGARDING ORAL ARGUMENT……………..................2

STATEMENT OF FACTS…………………………………………………..3-4

SUMMARY OF THE ARGUMENT……………………………..................5-6

ARGUMENT……………………………………………………...................6

    A. The restricted appeal should be dismissed in light of the
       fact that Mehl filed a motion for new trial
       in the district court……………………………………………........6-8

    B. Venue was established in Travis County as a matter of law
       and therefore does not constitute error
       apparent on the face of the record…………………………………8-9

    C. Judgment for Rescission of the original conveyance
        is not error………………………………………………………...9-12

    D. Judgment for $20,000.00 damages is not error……………………12-13

    E. Double recovery for rescission and damages is not error…………13-14

    F. Judgment for attorneys’ fees is not error……………………….....14

    G. Failure to join IndyMac is not error…………………………….....15

    H. Three day notice required for receiver is not applicable…………..16

CONCLUSION AND PRAYER………………………………………….....17

CERTIFICATE OF SERVICE………………………………………………19




                                    i
APPENDIX

    A. Judgment (CR. 15-26)……………………………………………TAB A

    B. Motion for New Trial (CR. 32-33)……………………………….TAB B




                            ii
                              INDEX OF AUTHORITIES

                                       CASES

Alexander v. Lynda’s Boutique,
      134 S.W.3d 845(Tex. 2004)………………………………………………..6

Champion v. Estlow,
    456 S.W.3d 363, 364 (Tex. App.—Austin 2015, pet. filed)……………….8

Cooper v. Hamilton County,
     2014 Tex. App. LEXIS 1066 (Tex. App.—Waco Jan. 30, 2014,
     pet. denied)………………………………………………………………....15

Glenn v. Lucas,
      376 S.W.3d 268 (Tex. App.—Texarkana 2012, no pet.)……………..........11

Goldman v. Olmstead,
     414 S.W.3d 346 (Tex. App.—Dallas 2013, pet. denied)………..................13

Grynberg v. Christiansen,
     727 S.W.2d 665, (Tex. App.—Dallas 1987, no writ)……………………...15

McGoodwin v. McGoodwin,
    671 S.W.2d 880 (Tex. 1984)……………………………………………….12

Scott v. Gallagher,
       209 S.W.3d 262 (Tex. App.—Houston [1st Dist.] 2006, no pet.)………….9

Scott v. Sebree,
       986 S.W.2d 364 (Tex. App.—Austin 1999, pet. denied)………………......14

Scott v. Wichita County,
       248 S.W.3d 324 (Tex. App.—Houston [1st Dist.] 2007, no pet.)………….9

TAC v. Boothe,
     94 S.W.3d 315 (Tex. App.—Austin 2002, no pet.)…………………….......6

Taylor v. State
      293 S.W.3d 913 (Tex. App.—Austin 2009, no pet.)……………………….6

                                      iii
Walton v. First Nat'l Bank of Trenton,
     956 S.W.2d 647 (Tex. App.—Texarkana 1997, pet. denied)……………..11




                          RULES / STATUTES

Tex. R. App. P. 4.2(a)(1)…………………………………………………………7-8

Tex. R. Civ. P. 306(a)(4)………………………………………………………....7-8

Tex. R. Civ. P. 86(1)……………………………………………………………..8-9

Tex. R. Civ. P. 695……………………………………………………………….16

Tex. R. Civ. P. 39………………………………………………………………...15

Tex. Fam. Code Ann. §105.003…………………………………………………..6




                                 iv
                         STATEMENT OF THE CASE

Nature of the Case:          This case is a restricted appeal in connection with
                             a default judgment obtained by Appellee Stern.


Trial Judge:                 The Honorable Jon Wisser
                             250th Judicial District Court
                             of Travis County, Texas


Course of Proceedings:       David Stern, Appellee, filed suit against Pamela
                             Mehl, Appellant, primarily to seek rescission of a
                             50% real estate property conveyance that was
                             originally made pursuant to a property settlement
                             agreement (CR 3-12).

                             Stern further sought monetary damages, and the
                             appointment of a receiver (CR 3-12). Stern’s
                             Original Petition was the live pleading in this case
                             (CR 3-12).

                             Mehl was properly served at the office of her
                             attorney (CR 13-14). Stern subsequently obtained
                             a default judgment against Mehl (CR 15-26).

                             Mehl filed a motion for new trial in the trial court
                             but failed to pursue said motion (CR 32-33).

Trial Court Disposition:     The trial court granted a default judgment for Stern
                             (CR 15-26).

                             Mehl subsequently pursued this restricted appeal
                             notwithstanding the fact that she also filed a
                             motion for new trial in the trial court (CR 32-33
                             and CR 34-60).




                                      1
                   STATEMENT REGARDING ORAL ARGUMENT



Stern does not seek oral argument in this appeal.




                                         2
                          STATEMENT OF FACTS



      Stern filed Plaintiff’s Original Petition in the Travis County District Court

on June 26, 2014 (CR 3-12). The primary basis of the lawsuit was to rescind a real

estate conveyance of Stern’s 50% interest to Mehl after Mehl defaulted on the

preexisting third party mortgage (CR 3-12). Stern primarily sought rescission of

the conveyance in his capacity as a creditor pursuant to a vendor’s lien as well as

under a breach of contract claim (CR 3-12).          Stern further sought monetary

damages in connection with the arrears as well as damages to his credit (CR 3-12).

Finally, Stern sought the appointment of a receiver primarily to protect the

property from the underlying lienholder (CR 3-12).



      On July 3, 2014, Stern served Mehl in person with a citation and a copy of

the lawsuit at the office of an attorney (CR 13-14). Moreover, the process server

filed an affidavit of service with the court on July 8, 2014 (CR 14).



      Stern did not dispute that the subject real property is located in Williamson

County. However, Stern alleged several theories in Plaintiff’s Original Petition in

support of Travis County as the appropriate venue, and Stern incorporates

Plaintiff’s Original Petition in this regard (CR 3-12).



                                           3
      Mehl failed to timely file an answer in the lawsuit and further failed to

timely object to the venue of the lawsuit (CR 2).



      On July 29, 2014, the Travis County District Court formally entered a

default judgment against Mehl in favor of Stern. For the purposes of brevity, Stern

incorporates the judgment of July 29, 2014 and all resulting relief (CR 15-26).



      Stern filed supporting documents in support of the default judgment (CR 27-

29). Stern further filed an Affidavit of Attorney’s Fees (Supp. CR 15-17). Stern

also filed a Non-Military Affidavit and Certificate of Last Known Address (Supp.

CR 18-21 and Supp. CR 13-14).



      On or about October 13, 2014 Mehl file a Motion for New Trial in Travis

County District Court (CR. 32-33). However, Mehl failed to pursue the matter.



      On or about November 4, 2014, Mehl filed a restricted appeal in this cause

(CR. 34-60).




                                         4
                            SUMMARY OF THE ARGUMENT



       The fact that Mehl filed an arguable timely motion for new trial in the Travis

County District Court precludes her from also pursuing a restricted appeal (CR 32-

33). Mehl subsequently abandoned the motion for new trial instead of scheduling

it for a hearing with the trial court.



       There is no error apparent on the face of the record in so much as 1) Mehl

has not alleged any defect whatsoever in the service of process, 2) Mehl waived

any challenge to venue and 3) all the relief in the judgment is supported by the

clerk’s record.



       The clerk’s record contains considerable evidence in support of the

judgment, including a copy of the warranty deed which recites the obligations of

Mehl to assume the underlying mortgage on the subject property. There is further

written evidence of the many delinquent payments on the underlying mortgage by

Mehl, all of which support the rescission and damages that are the basis of the

judgment. Finally, the record contains an affidavit of attorneys’ fees.




                                          5
      Moreover, contrary to the assertions of Mehl, there is no requirement of a

reporter’s record in a no answer default judgment hearing (as opposed to a post

answer default hearing). Taylor v. State, 293 S.W.3d 913, 916 (Tex. App.—Austin

2009, no pet.). Furthermore, this case is not a family law case that might require a

reporter record under Tex. Fam. Code Ann. §105.003.



                                 ARGUMENT

      A. The restricted appeal should be dismissed in light of the fact that
         Mehl filed a timely motion for new trial in the district court.


      The requirements for a restricted appeal are the following: 1) A notice of

restricted appeal must be filed within six months after the judgment is signed; 2)

The notice is filed by a party to the lawsuit; 3) The party did not participate in the

hearing that resulted in the judgment complained of and the party did not file a

timely post-judgment motion or request for findings of fact and conclusions of

law; and 4) Error must be apparent on the face of the record. Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004) and TAC v. Boothe, 94 S.W.3d 315

(Tex. App.—Austin 2002, no pet.).




                                          6
      The record is clear that the trial court entered a default judgment on July 29,

2014 (CR 15-26). However, on October 13, 2014, Mehl filed a Motion for New

Trial in the trial court (CR 32-33).



      Although the deadline for a motion for new trial is typically thirty days after

the entry of judgment, both Tex. R. App. P. 4.2(a)(1) and Tex. R. Civ. P. 306(a)(4)

extend the deadline for a motion for new trial if the defendant does not receive

actual or constructive notice of the judgment within twenty days of the entry of

judgment. Instead, under such circumstances the time period for the motion for

new trial deadline begins when the defendant first acquired actual knowledge of

the default judgment and not later than ninety days after entry of the judgment.



      Mehl admits in Appellant’s Brief that she never received the notice of

judgment from the district clerk and that she first became aware of the default

judgment in October, 2014 (Appellants Brief, Page 11, paragraphs #13 and #14).



      Therefore, by her own admission, the motion for new trial was timely filed

since it was filed on or about October 13, 2014, well within 30 days of when Mehl

supposedly first became aware of the judgment in October of 2014, and less than

90 days after the date of judgment (CR 32-33). Under such circumstances, Mehl’s



                                         7
motion for a new trial was timely filed and she could have pursued relief from the

trial court under both Tex. R. App. P. 4.2(a)(1) and Tex. R. Civ. P. 306(a)(4).

Consequently, Mehl should not be able to pursue this restricted appeal.



      B. Venue was established in Travis County as a matter of law and does
         not constitute error apparent on the face of the record.


      Mehl argues at length that Travis County was an improper venue for the

underlying proceeding, including the appointment of the receiver, in light of the

fact that Williamson County is the mandatory venue. Therefore, according to

Mehl, the filing of the lawsuit in Travis County constitutes reversible error

apparent on the face of the record.



      However, the law is clear that venue is waived if a defendant fails to timely

object in the trial court. Tex. R. Civ. P. 86(1) establishes the procedure for

objecting to venue and also clearly states that a failure to timely object is a waiver

of venue. Champion v. Estlow, 456 S.W.3d 363, 364-365 (Tex. App.—Austin

2015, pet. filed).




                                          8
      Several courts have confirmed that even mandatory venue is waived if a

party fails to timely object under Tex. R. Civ.P. 86(1). Scott v. Wichita County,

248 S.W.3d 324 (Tex. App—Houston [1st Dist.] 2007, no pet.) and Scott v.

Gallagher, 209 S.W.3d 262, 264 (Tex. App—Houston [1st Dist.] 2006, no pet.).

Moreover, both courts have confirmed that venue is not jurisdictional and is

waived by a defendant who fails to timely object to venue.



      In short, venue, including mandatory venue, is not jurisdictional. The failure

of Mehl to timely file an objection to venue prior to the judgment date constituted a

waiver of venue. Therefore, the district court correctly acquired venue in Travis

County as a matter of law when it entered a default judgment in this proceeding.



      C. Judgment for rescission is supported by the record



      One of the key aspects of the underlying judgment was the rescission of

the original 50% land conveyance from Stern to Mehl in light of Mehl’s failure to

tender the required payments to the underlying mortgagee.




                                         9
      The judgment itself incorporates the original warranty deed as an exhibit

whereby Stern conveyed his 50% interest to Mehl (CR 15-26). The warranty deed

from Stern to Mehl further contains clear language that obligated Mehl to timely

pay all mortgage payments on the existing mortgage and further that she was

required to indemnify Stern from any default (CR 19-26).



      In addition, unlike a more typical real estate transaction that involves an

assumption of a prior mortgage, Mehl was already a 50% owner of the property

prior to the conveyance of Stern to Mehl of his 50% interest (CR 19-26). In

addition, the judgment does not disturb Mehl’s preexisting 50% interest and only

focuses on the subsequent 50% interest Mehl received from Stern.



      Stern sought rescission of the underlying conveyance in his original petition

pursuant to both a trespass to try title claim to foreclose on his implied vendor’s

lien AND pursuant to a breach of contract claim (CR 3-12). In addition, paragraph

#8 of the original petition referenced a deed of trust to secure assumption in

support of Mehl’s obligations with respect to the conveyance from Stern to Mehl

(CR 3-12).




                                        10
       There is case law that supports that a party may seek the remedy of

rescission through a judicial proceeding as a result of failure of a party to pay a

secured debt. Walton v. First Nat'l Bank of Trenton, 956 S.W.2d 647, 652 (Tex.

App.—Texarkana 1997, pet. denied) and Glenn v. Lucas, 376 S.W.3d 268, 276

(Tex. App.—Texarkana 2012, no pet.). Stern further offered evidence of

the delinquency of the mortgage payments by Mehl which could easily support a

basis of foreclosure of a vendor’s lien and rescission of the original 50% interest

(CR 27-29).



      The arguments by Mehl that a rescission does not address a supposedly

larger settlement agreement have no merit. Firstly, the focus of the underlying

judgment was to specifically address a default by Mehl in connection to the

conveyance by Stern of his 50% interest in the subject property.



      Mehl has never directly challenged in her brief the existence of the vendor’s

lien and the right of Stern to seek rescission of the conveyance in his capacity as a

creditor in the transaction. Instead, Mehl argues that it is improper to allow a

rescission of only the property conveyance without also addressing the larger

settlement agreement.




                                         11
      The Texas Supreme Court recognized an implied vendor’s lien in connection

to the transfer of a particular piece of real estate between spouses pursuant to a

divorce decree. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984).

Therefore, the fact that there is a larger settlement agreement does not invalidate

efforts by Stern to seek rescission of the underlying real estate transaction.



      Stern exercised his right to seek rescission of the transaction based on his

implied vendor’s lien and based on a breach of contract claim after Mehl defaulted

on the obligation and exposed Stern and the property to great financial harm. The

vendor’s lien and any contract claims are directed solely at the conveyance itself.

Therefore, as long as Stern prevails under either an implied vendor’s lien or a

breach of contract claim, he would be entitled to rescission.



      D. Judgment for $20,000.00 damages is not error



      Contrary to Mehl’s assertion that there is no evidence in support of the

monetary damages, Stern offered evidence of the delinquency of the underlying

mortgage which totaled approximately $16,471.50 (CR 27-29). Moreover, Stern

specifically alleged in paragraphs #10 and #11 of his original petition that there

was a material default with at least five delinquent mortgage payments (CR 3-12).



                                          12
Stern further alleged in paragraph #19 of his original petition damages to his credit,

a fact that could easily be supported by the record in light of many months of

delinquent payments for the main mortgage (CR 3-12 and CR 27-29).



      Therefore, an award of $20,000.00 was necessary to address the significant

arrears on the mortgage and/or to compensate Stern for damages to his credit.



      E. Double recovery for rescission and damages



       In the case at bar, Stern sought monetary damages in addition to rescission

of the conveyance. A rescission of the conveyance alone would not have remedied

the damages to Stern’s credit report and would not have remedied the significant

mortgage arrears. Therefore, an award of monetary damages was essential to

facilitate the rescission of the conveyance.



      There is case law, in the context of a judgment for specific performance, in

support of an award of monetary damages when such damages are incidental to the

order of specific performance and fall short of damages awarded from a breach of

contract claim. Goldman v. Olmstead, 414 S.W.3d 346, 361-362 (Tex. App.—

Dallas 2013, pet. denied).



                                          13
      In essence, the additional monetary compensation harmonizes the rescission

award with any incidental damages so as to place the party in the pre default

situation. As previously stated, Stern offered evidence of delinquent payments and

damages to his credit (CR 3-12 and CR 27-29).



      The cases cited by Mehl are inapposite as they appear to focus on rescission

based on fraud rather than in connection to a vendor’s lien/foreclosure.

For example, the Sebree case cited by Mehl involves statutory fraud and specific

performance and does not address a rescission based on a judicial foreclosure

and/or a loan default. Scott v. Sebree, 986 S.W.2d 364, (Tex. App.—Austin 1999,

pet. denied).



      F. Judgment for attorneys’ fees is not error.



       Stern offered an affidavit of attorneys’ fees at the original default hearing

(Supp. CR 15-17). Therefore, any argument by Mehl that the attorneys’ fees are

not supported by the record have no merit.




                                          14
      G. Failure to join Indymac and TRCP 39



      Assuming for the sake of argument that Indymac or any other lienholder is

an indispensable party, the failure to join said party does not render the judgment

void and does not deprive the court of jurisdiction. Cooper v. Hamilton County,

2014 Tex. App. LEXIS 1066 (Tex. App.—Waco Jan. 30, 2014, pet. denied).

Instead, in the most extreme sense, the judgment would be voidable only as to the

interest of the omitted third party.



       As a practical matter, the lienholder, not Mehl, would have standing to

challenge the judgment to the extent its interest in the property was affected by the

judgment. There is nothing in the judgment that threatens the validity of any lien

on the property one way or the other (CR 15-26).



      Moreover, the harm to the lienholder would need to be substantial to justify

a challenge of the judgment. Grynberg v. Christiansen, 727 S.W.2d 665, 666-67

(Tex. App.—Dallas 1987, no writ).




                                         15
         H. Three day notice required for receiver



         In light of the fact that Stern served Mehl with the actual lawsuit and the

request for receiver, any issue of her notice is moot (CR 3-12). Obviously, Mehl

had over twenty days from the date of personal service of the lawsuit to file an

answer, a time far greater than the requisite three notice she complains of in her

brief.



         Moreover, Tex. R. Civ. P. 695, the receiver statute, deals with adverse

parties. Stern contends that only Mehl, as an owner of the property, is an adverse

party in this lawsuit.



         Furthermore, there is evidence in the record that the receiver has

subsequently filed post judgment motions and provided notice to Mehl by and

through her counsel (Supp. CR 49-51).




                                         16
                          CONCLUSION AND PRAYER



      The filing by Mehl of a motion for new trial precludes her right to also

pursue a restricted appeal. There is no error apparent on the record in the context

of venue in light of the fact than Mehl waived any venue challenge. It is also

undisputed that Mehl was properly served with the lawsuit and there was no defect

in the affidavit of service. Finally, the record contains evidence in support of the

judgment in all respects: a judgment for title based on rescission pursuant to

foreclosure of a vendor’s lien and breach of contract, as well as monetary damages,

attorneys’ fees and all other relief in the judgment.



      WHEREFORE Appellee, David Stern, respectfully requests that this Court

affirm the trial court’s judgment. Appellee prays for other and further relief to

which he may be justly entitled.

                                   Respectfully submitted,

                                   /s/ Brent A. Devere
                                   Brent A. Devere
                                   Texas Bar No. 00789256
                                   1411 West Avenue, Suite #200
                                   Austin, Texas 78701
                                   Tel. (512)-457-8080 Fax. (512)-457-8060
                                   Email: BDevere@1411west.com

                                   ATTORNEY FOR APPELLEE,
                                   DAVID STERN

                                           17
                         CERTIFICATE OF COMPLIANCE



      I certify that this document was produced on a computer using Microsoft

Word 2013 and contains approximately 3455 words as determined by the computer

software word count function, excluding the sections of the document listed in

Texas Rule of Appellate Procedure 9.4(i)(1).



                                     /s/ Brent A. Devere
                                     Brent A. Devere




                                        18
                          CERTIFICATE OF SERVICE



      Under Texas Rule of Appellate Procedure 9.2, I certify that a copy of this

Appellee’s Brief was filed through the electronic filing system. Under Texas Rule

of Appellate Procedure 9.5, I further certify that a copy of this brief was served on

July 21, 2015 upon the following counsel for Appellant via electronic notification

after 5:00 P.M.:


The Lefler Law Firm                    VIA EMAIL: slefler@leflerlegal.com
Sandra M. Lefler
1530 Sun City Blvd., Suite 119
Austin, Texas 78633
Telephone: (512) 869-2579
Telecopieur: (512) 583-7294
Email:slefler@leflerlegal.com

                                              /s/ Brent A. Devere
                                              Brent A. Devere




                                         19
TABA
Notl69 sent. ~ lntenocutOry         l'lone
~ isp Part~s~·        _,fii_._ - - ---            DC               BK14217 PG560
                                                                                                 Filed in The District Court
Dlsp code: CVD I CLS .     YA1 ( \{                                                               of Travis County, Texas
Redact pgs:: _ __::._ _ _--:o::---==:::-
Judg;--rb\       \J     Clerk   Q--:J                                                                  JUL 2 9 2014
                                               CAUSE NO. D-1-GN-14-002071

                 DAVID STERN,                                  *       IN THE DISTRICT COURT
                  Plaintiff                                    *
                                                               *
                 v.                                            *
                                                               *       250n 1 JUDICIAL DISTRICT
                                                               *
                                                               *
                 PAMELA MEHL,                                  *
                   Defendant                                   *       TRAVIS COUNTY, TEXAS


                                JUDGMENT FOR TITLE TO REAL ESTATE AND DAMAGES



                        The hearing on this cause was held on July 29, 2014. Plaint in: David Stern, appeared, by

                 and through counsel and Defendant, Pamela Mehl, although duly cited to appear by filing an

                 answer herein, failed to file an answer within the time allowed by law.



                 I. On the claim of Breac h of Contract, the Court find s in favor of Plaintit1~ David Stern, and

                 against Detendant, Pamela Mehl.



                 2. On the claim ofTrespass to Try Title, the Co urt finds in favor of Plaintiff, David Stern, and

                 against Defendant, Pamela Mehl.




                                                                                                                               15
                                  DC              BK14217 PG561




        Pursuant to the pleadings and evidence on file , the Court finds and ORDERS as follows :

         A.   The Court recognizes a vendor' s lien, equitable lien and a deed oftrust to secure

assumption for and in favor of David Stern on the Property (The ''Property" is otherwise known

as 700 Grove Lane, Georgetown, Texas 78626. Williamson County along with all improvements

and mobile homes, and is further 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 #20 13063557 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 Meh I.

         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 trom the date this judgment is

signed until paid .

         F.    Costs are hereby taxed against Defendant , Pamela Mehl.

         G.    Plaintift: 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, 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 ofthe

Court. Receiver shall be vested with the powers to take charge and keep possession ofthe
                                                  2




                                                                                                       16
                                  DC               BK14217 PG562




Property, receive rents, and sell the Property and hire real estate brokers and other agents to sell

the Property, with such sale being subject to Court approval. The rent and sale proceeds shall be

used to pay all valid secured liens on the property and property taxes due plus payment of all

amounts due under this judgment, with the remaining proceeds, if any, being paid 50/50 to

Plaintiff and Defendant. The receiver shall be entitled to compensation at $175 .00 an hour and

reimbursement of reasonable and necessary expenses, after application to and approval by the

Court tor such fee s and expenses. Receiver' s fees and expenses shall be taxed as costs.



        IT IS FURTHER ORDERED that Plaintiff, David Stern, may record this order in the real

propetiy records as evidence of ownership ofthe Property, and is entitled to enforce this

judgment through abstract, execution and any other process necessary, and all writs and

processes for the enforcement and collect ion of this judgment and costs may issue.



        IT IS FURTHER ORDERED that this is a final judgment and finally dis poses of all

parties and all claims and is appealable.


                            :)c~ ~
        SIGN EDthisthe,         1      dayofJul y, 2014.




Approved as to Form :

                                                   3




                                                                                                       17
                                     DC       BK14217 PG563




Q______
l c.J                  ---------~.
Brent A. Devere
SBN#00789256
1411 West Avenue, Suite #200
Austin, Texas 7870 I
Ph: 512-457-8080
Fax: 512-457-8060

Attorney for David Stern




                                          4
DC      BK14217 PG564




     EXHIBIT 1




                             )
                             I




                        19
                             l
                             1
                             ~
                                DC              BK14217 PG565




12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 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 Stem

 Grantor's Mailing Address:

         b 100    cc tvr&.- OQ..      4*-b 00
         LOI M& t-L~,                cA

 Grantee: Pamela Mebl

 Grantee's Mailing Address:

        700 Grove Lane
        Georgetown, Texas
        Williamson County

 Consideration:

        A settlement agreement in a   bankruptc~   case style In Re: Pamela Christina Mehl, filed

 under Case No. 12-12209 in the Western District of Texas, Austin Division, and ten dollars and

 other valuable consideration paid by Grantee, and Grantee's assumption of the unpaid principal

 and earned interest on the note in the original principaJ sum of Two Hundred Fifty-six Thousand

 Two Hundred dollars ($256,200.00) dated August 11, 2004, executed by David Stern, and

 payable to the order oflndyMac 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 Mehl, and additionally secured by a

 deed of trust dated August 11, 2004, from David Stern and Pamela Mehl to Charles A. Brown,

 Trustee, recorded in clerk's 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 Grantor and Grantor's heirs and successors to warrant and forever defend

 all 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         BK14217 PG567




  12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 16:33:15 Exhibit Pg 9 of 34




                                              This instrument 'WaS prepared based on information
                                             furnished by the parties, and no independent title
                                             search has been made.




   STATEOF       Gc.f.r", ·~                     §
   COUNTY OF Ls          A~)   q_   t.. r        §



           This instrument was acknowledged before me on   J ""'....   2. <..f 1   u 1J   by David

   Stem.




   PREPARED IN THE OFFICE OF:                    AFTER RECORDING RETURN TO;

@ H. Bryan Hicks, PLC                            Pamela Mehl
   901 2nd St.                                   700 Grove Lane
   Marble Falls, TX 78654                        Georgetown, Texas
   Tel: (830) 693-2165
   Fax: (830) 693-8185




                                                                                                     22
                                     DC                        BK14217 PG568



 12-12209-hcm Claim#S Part 2 Filed 10/31 / 12 Exhibit Page 27 of 34




Nllllal ~-ntratt et paron oCI&nd aitvot..l in WUii..m..o• Cow!!y, T - ou1 o(U.cJCIMa.Ty .5vrvey,
Al11ll'ld No. !I .... IJI. M. J. O&tcia Survct. Ahlltr4 No.~ IIIIi bcln1 tNt Trad! OOftW7ed lo
RaJ"'OIId /1.. MPOR by Wtmn17 Deed d.lcod k.ol!'lt lO, l9t~ 1M JICOf6ed in Volume IUt, P•aelJS of
the Official ll.ecetdr ofWilliiiiiiOI County &od dacn'blld bJIIllltCI tnd bouild1 u foilow1:

B!OLNNT1'40 I& 10 lrot\ pip6 fc~ comot po.C ill IlK Noi1JIIiru of Oro•4 1.&~~& l'ot tbe ~ _ , . ~t'
thlltna 4~ in 1 Wllfll'dJ De..! to ~by J1111 fKll, recorded in Volum• 7lO,I'qt17l ollhc
Willl&maon Cowoty ee.d 111.~ b&Uia tt.. Souu-.t coroor oC'Mrd Moon TtiiCll &nclthia ti'KI;
                                                                       •
nmNC'e: s l ,. 16" l-'" w l7~ . 76 r.- will! the North rrnc ororou!Anc 10 an lroa pln riJ\jnQ fet the
ScUhcut Clllrnu or thl Tnct tl u d-.rlbcod in Mid Moen Wart&lll)l Oerd for the Sw!hwuc (#11(1 of
-.ld Trxt I and 1M lnd;

THliN~:      lOll~ Ih. QllnfiiO n ll11t oC nidi ,..a I &ncl Trwd tl; N (1' O>' t17" W ~58.05 r~ 1o an leon pin
foo.md &ncl N 16' n• 47" W 4lJ . ~S to &n iron pin found (01"\lltl'lor\hea.l- of' Mid TroQ nand ~n8
Ibe Honh- corner or Mid T r•ct I 1111<1 Oil• tr"";

iliENl;;~: wil\ lht ~'l line af lli4T n.a       \,
      I) N 71" I>'    I~ "   !I.   ~lUI
                                fca10u lronp\Qfaund.
      2) N n• II' H" H tll.1Hn11e b iro11 pia feNnel,
      3) IOJ• II' H .. B 60.01 reel lo 111 )Jcm piR raunct.
      4) N 6r 19' 11" a 90.11 r..t 1o aa ~ ph1 fOUIIII bt lhoo Wnlli• oC &aid Jar;Qy cr.~& ror lilt
         Horthcan ~ oC ••ill Trte~ I lnd tlllllrlet;
THENC;E; 1!0111 che'W~t~t nne or !lid r!ICihy ltKt •a41he l!.qc U~~e of       "'d Tl"'ll:: 1.
    I) S 12" W )0" E J70,a.4 foet 1o UWA pia~.
      2) S ltr ll' lJ"       a H 1.151 ret t~ an ium pia klulld, ·
      l)   S ,. 40' ~.(" E 19S . I9f~t lo lho pl!ICC ol'&cfU\niiiJu-4 tOIII&IIllnj 17.lJ auu ofJIIJIII.


                                                 RECORDERS MEMORA NDUM
                                                 All or parts of the text on this page was
                                                 not clearly legible for satisfactory
                                                 recorci ~ t ion




                                                                       Exhibit               "_A_. .__•


                                                                   I




                                                                                                                 23
                                                           DC                   BK14217 PG569



                     12-12209-hcm Claim#S Part 2 Filed 10/31 I 12 Exhibit Page 28 of 34


               AJl!Nl ccr'ILinlt.a or plftd of land lilualed in Willi~10n County, T~ uu.t ofll\1 John B•ry Sllrvey,
               Abl\ncl tolo. SI &lld '*Ill \1111 Trta U r.oJNeycd \0 II.&)UIOTII1 A. Moon 'lly Wlirn.nry Oeecl dllcd Ausull
               JO, I ~S lll'od ~(dod in Volume 1138 , P . 2J 5 of \he om~11 Rcc.orda afWilli~m~Gn Coo..~ty and
               dcaaibed by mclet 111d bounda ~ fbllowt:

               BEG!NNlNG a.t Ul iroa fin fou!\4 inlht NQI\b ltno of Grove 1..Anc for 10. Soo.ttu:..\ comc:r orlhat ~~~~
               dciQ'I"bed In 1 Wln'IIIIY Dtlld 10 1\lebald A. Milct, Q Ill!, da\ed Novcfllbei 1, l9a.. Uld r~ in Volumo
               1095, Pas• 91J of &aid alli~ial rOCDrdt, bcia& the Soulltw..lt .:ornc:r orttld Mooro ~ and lhiJ 1rae1;

              THENCE: N u• l9' 00" w 19-1.76 feet wilh lbc We~~~~~~ of said Moore 1110.. ~i na lho bet it of
              bearinp cile.d 1-.::reoo~.to 111 iran pin round for lilt l-IMbuJt C>Omd or wd M.ilca 1/'ut beifl& Lbe Northweat
              eorn1111 or S&id Moariii'CIIhia 1n1;1:
               THEHC'E: N 11•        2~ · )J" E 1)7.19 feet to an lr0<1 pln found for the Nonlnrell corn• oflt.l Trac& l aa
               clr:,t;ribN i~ the afortmenlioncd Moore Wan~nty ~ bcina lhe NMhca$1 t.Ornll' o( aaid Moor, Tr.a II
               lJ1d thia traa:

               TiiEI"CC.: aloag the C<>Glmortlin• ofaaid Tru:t lalldTr.a II, S 16° 53' 47'' E Hl.4) ra~to an iron pin
                                                                                                  or
               ~nd. U14 S o• Ol' O'l" E "SI.OHCC\ \c.., iron pin found in lha Nonh line llid Gtavol.ane for the
               Soulh"cs >;Q('IICf of said Tra!Ot I .,d boina 11-c S011lbcas\ tllnlCir o( Ill ill. ind tl ~ thit tnd;

               rnENC£: S 11• ]4' 02" W 699,68 feet 10 lbt place of8qiiii\ID8811d containiQIIl6.67 acru orbml.

                           RECORDERS MEMORANDUM
                           All or parts of the tex t on this page was
                           not clearly legible for s>tisfactory
                           rl"r.ortiAt inn




                                                                                  Exhibit"
                                                                                                       ------
                                                     FILED AND RECORDED
                                                                OFFICIAL PUBLIC RECORDS 2e04064127
                                                                    ~E.~~
                                                                    98/tl/2004 12 :5& Pft
                                                                   ~LLEN $69 . 00

                                                          NANCY E. RISTER, COUNTY ~£RK
                                                            UILLI~"SON COUNTY, T£X~S




• •r
· .·,<!! .   · <~   . ..                            :-.:.·.··.··>                           ··:
                                                                                                                                24
                                        DC                      BK14217 PG570




                                                              1 11~1111~ IIIII 11/llllllmllll/~ IIIII 1~11 11~111111111
                                                                                                                           DEED
                                                                                                                                            2009086302
                                                                                                                           5 PGS


                                                                                                                          CAD Na. R039Gll



Notice or Coalidentlality rlgbtll: If you are 1 natural penoa, yoa may remove or strike aay of the
follmria11 i.Dformatioa from Ibis lastnuaent before it is filed for reeord ia ttac public: ncords: your
toCial aecurity number or your driver's liause number.

                                          GENERAL WARRANTY DEED

DATE:               November 14, 2006

GRANTOR:            Linda Moore, aNa Linda R. Moore, Individually , and as lndependenl Executrix oflhc Eslall: of
                    Ra~nd A. Moore, deceased, Kathy Moore. and RAndy Moore


GRANTOR'S MAILING ADDRESS:


GRANTEE.:           David R. Slem and Pamela C. Mehl

GRANTEE'S MAILING ADDRESS:                   700 Grove Lane, Georgetown, Williamson Counly, Texas 78626

CONSIDERATION:

$10.00 and other valuable consideration, receipt of which is h<rtoby aelalowledgecl, and for lhe paym<nt ofwhieh no
lien, eitber express or implied, is herein ~d.

PROPERTY (including improvements):

fEE SIMPLE nTI.E in and to lbe perimt'll:r desaiption of a JS foot wide road containin& S.l!S acres,
sppro-Wnately one-half bcin& in the MJ. Garcia Survey, AMnlc! No. 246, and one-half in the John BelT)' Survey,
Abstrac! No. 51. in Williamson Counly, Texas, and being a pan of an 85.20 acre tnct coaveyed to Charleo Pmzlcr,
et ux, of record in Volume 420, Page 86, O.Cd R~ords of Williamson Cowtty, Texas, ll1d containing all of a JS foot
ell shaped strip described in a deed from EIDa M. Lindell and A. WiUiam LindeU 1D Owles Penzler, dated July 23,
)968, and recorded In Volume 509, Page 341, Deed Records of Williamson COUIII)', Texas; $aid 3S foot road being
rna~ paniculazly described by metes and bounds as follows:

BEGINNJNG at the lower Soutbwcst comer of t1u: said ell shaped >trip in tlu: NOT!h line of County Road IS2, ai!IO
being the lower Southwest comer of a 139. 17 acre tnct described in a deed to Etna MiUer and laura Millor, dilled
October of 1957;

'!'HENCE North 19 de~ 08 minules Wesi669.J7feet to an ell comer of the 139.17 acres and an ell comer of said
ell shaped sllip;

'fHENCE South 71 <kgrecs 20 minutzs 35 J<Conds West 2527.08 feet to • point oo or near lhe upper Southw<11
comer of lhc I )9.17 acres and the upper Southwesr comer of lhc ell shaped strip;

11-IENCE 71 deg=s 17 minutes Wcst 859.01 feet and South 71 degrees 18 minute5 40 seconds West 900.57 feet
wilh lhe South line of the $aid 85.20 acre 1n1t1. as fenced, lo an iron pin set Ill !he Southeast comer of a 9.983 Len!
tniC~




                                                                                                                                                         25
                                                              DC                         BK14217 PG571



I
I                        TIU::NCE. South 70 degrees 57 minutes JO se<:onds West 100.0 feet and South 71 degrees 32 minutes 40 seoonds
                         Wes1417.SJ feet with the South line of the 85.20 a<res and the South line of the 9.983 acres to an inln pin set at the
                         Southeast comer of a 16.867 "'"' tr.ICt;

                         THENCE North 19 degrees 00 minutes 45 seconds West 111 35 feet past an iron pin on line, continuing in all 554.29
                         ft:e1 with the common line between lhc 16.867 acre !racl and the 9.983 acre tract to an iton pin set beside a fence
                         comer po51;

                          n!ENCE Nonh 27 degrees 37 minutes 40 seconds West 74 .92 to an iron pin set in the common line bctwun the
                          16.867 acres and the 9.983 acres, and continuing with the same line in all 144.54 feet to a point on curve wi!h a
                          radius of80.59;

                         THENCE with the arc of the curve to the     righ~   the chord bears South 54 degrees 19 minutes East 77.92 feet to the
                         end of the curve;

                          n!ENCE South 27 degrees 37 minutes 40 seconds East        n.ss feet to • point;
                          niENCE South 19 degrees 00 minulcs 45 seconds East 522.21 feet to a point;

                          ntENCE North 71 de~ 32 minules 40 seconds East 382.69 feet and Nonh 70 degrees 57 minutes JO seconds
                          East 99.94 feet to the East line of the said 9.983 aero tract;

                          niENCE Nonh 71 degrees 18 minutes 40 seconds Eas1 900.67 feet and Nonh 71 de~es 17 minutes East 859 .02
                          feet to a point on or ncar the eommon line between the 85.20 acres and the I 39.17 acres;

                          n!ENCE North 71 degrees 20 minutes East 2S6 1.53 feet to the Northwest eo mer of the ell shaped ttoct demibcd in
                          Volume 509, Page 341, Deed Records of Williamson County, Texas;

                         THENCE South 19 degltt3 09 minutt! 20 !.CCOftds P.ast 704 .70 feet to the Southeast corner of the ell shaped tl"lct
                         and to lhe Nunh line ofCOIJllty Road 1~2;

                          TiiENCE South 71 degrees 08 minutes 20 seconds West 35.0 feet with the North line of County Road 152, to the
                          POINT OF BEGINNING .

                          RESERVATIONS FROM AND F.XCEPTlONS TO CONVEYANCI'. AND WARRANTY:

                          This conveyance Is made and acupled subject ro: I) all reS1rictlons, coverwu.s, conditions, rights-of-way and
                          as.scssments if any. affecting the ~bed property that are valid, existing and properly of record; 2) •II
                          easements. indudifli specifically but without limita1ion any access, ingress and egress, or other easement granted to
                          any other person fOJ the use of the subject roltd; and 3) lD taJtes for the year 2007 and subsequent yean.

                                 Grantor, for the conside1'81Jon and subj«t to the reservations from and uceptions to oonveyan« and
                         warranty, graniS, sells and conveys to Grantee the property, tol!ether with ~11 and >i1111ular the rights and
                         oppunenonces !Mmo in anywise belonging, to have and to hold it to Grantee, Grantee's heirs, executors,
                         admlnislnltors, successors 1111d ossigns forever. Grantor hereby bin<h Grantor and Grantor's heirs, executors,
                         administnltors, sue<:<:S50rs and aMigns to wanam and f=ver defend all and singular the property to Grantee and
                         Grantee's heirs, executors adminisllalon, succCS50rs and assii!IJS ogain31 every person whomsoever lawfully
                         claiming or to claim the same or lilY part thereof, cxupt u to the reservations and exceptions to convoyancc and
                         watranty.




                                                                                        FILED AND RECORDED
                                                                                        OFFICIAL PUBLIC RECORDS 2013063557
                                                                                                   ~E.x~
                                                                                                 07/08/2013 02 :10PM
    @   ~ ~               \uUs          PLG                                                         CKASEBERG $40 .00
                                                                                            NANCY E. RISTER , COUNTY CLERK
        ct 0 {   .;l   '1-C- ~.                                                               WILLIAMSON COUNTY , TEXAS
        m~ ~,\Y lt&~v-




                                                                                                                                                  26
TABB
                                                                                10/13/2014 9:09:50 PM
                                                                                       Amalia Rodriguez-Mendoza
                                                                                                      District Clerk
                                                                                                     Travis County
                                      CAUSE NO.D-1-GN-14-002071                                    d-1-gn-14-002071


 DAVID STERN                                           §            IN THE DISTRICT COURT
         Plaintiff,                                    §
                                                       §
                                                       §
                     v.                                §            250TH JUDICIAL DISTRICT
                                                       §
 PAMELAMEHL                                            §
       Defendant                                       §             TRAVIS COUNTY, TEXAS

                               DEFE~DANT 'S     MOTION FOR A NEW TRIAL


 TO THE HONORABLE JUDGE OF SAID COURT:

          COME NOW Pamela Mehl ("Defendant") and files this Defendant's Motion for New

 Trial and asks this Court to grant a new trial in the interest of justice and fairness.

                                            I. INTRODUCTION


           1.        Plaintiff David Stern is Defendant Pamela Mehl ex-husband. This suit was as a

result of a post divorce misunderstanding and what Defendant believes a breach of Plaintiffs

duties as outlined in a final divorce decree issued in Williamson County, Texas.

          2.         Defendant was properly served with service of process at her then attorney 's

office, but as Defendant will attest and verify her attorney failed to answer this suit.

          3.         Plaintiff sued Defendant in this suit, served Defendant at her attorney's office but

an answer was never filed . The divorce and all the matters and events in this cause occurred in

Williamson County, Texas, however this suit was wrongfully filed in Travis County, Texas.

          4.         Because this is the last possible day, this filing , as filed is sufficient as a Motion

for New Trial, however will be supp lemented tomorrow with additional detail, factual allegations

by verified facts.




Defendant ·s Motionfor New Trial
Page I of2

                                                                                                               32
                                           II.         PRAYER


           WHEREFORE, PREMISES CONSIDERED and for these reasons, Defendant prays the

Court to grant this motion in favor of Defendant for a new trial so that justice may be done.


                                                 Respectfully submitted,

                                                 THE KELLY LEGAL GROUP, PLLC
                                                 PO BOX 2125
                                                 Austin, Texas 78701
                                                 512-505-0053 tel
                                                 512-505-0054 fax
                                                 'kcll

                                                 By:

                                                        St e Bar No. 2404 749
                                                        ATTORNEY FOR DEFENDANT


                                     CERTIFICATE OF SERVICE

        I hereby certify that on this the -~ day of October, 2014, a true and correct copy of
this the Notice of Appeal, was served as stated below pursuant to the Texas Rules of Civil
Procedure.


Brent A. Devere                                         D       Hand Delivery
1411 West Avenue, Suite 200                             D       CMRRR
Austin, Texas 78701                                     D       Regular U.S. Mail
(512) 480-8170 Facsimile                                ~       Confirmed Facsimile
Electronic Mail To: BDevere@ 14ll west.com              ~       Electronic Mail




Def endant 's Motion for New Trial
Page 2 of:Z

                                                                                                33
