                                                                            ACCEPTED
                                                                       03-14-00463-CV
                                                                              4851573
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                  4/10/2015 4:36:35 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
               CAUSE NO. 03-14-00463-CV

                                                       FILED IN
                                                3rd COURT OF APPEALS
                      IN THE                        AUSTIN, TEXAS
              THIRD COURT OF APPEALS            4/10/2015 4:36:35 PM
                   AUSTIN, TEXAS                  JEFFREY D. KYLE
                                                        Clerk



             DON TITEL AND CAROL TITEL

                        Appellants

                           VS.

       MORRIS MELCHOR AND LISA MELCHOR

                        Appellees


From the County Court at Law No. 2, Cause # C1-CV14-004232
                  of Travis County, Texas
           the Honorable David Phillips presiding


                BRIEF OF APPELLEES



                          Jay P. Lea
                          State Bar No. 24062843
                          jlea@namanhowell.com
                          NAMAN, HOWELL, SMITH & LEE, PLLC
                          8310 N. Capital of Texas Highway,
                          Suite 490
                          Austin, Texas 78731
                          (512) 474-1901
                          FAX (512) 474-1901

           ORAL ARGUMENT REQUESTED
                NAMES OF ALL PARTIES AND COUNSEL


Appellants:              Don & Carol Titel

Counsel for Appellants: Paul C. Velte, IV
                        State Bar No. 20541700
                        PAUL C. VELTE, IV, ATTORNEY & COUNSELOR
                        109 E. Hopkins St.
                        Suite 204
                        San Marcos, Texas 78666
                        Telephone: (512) 353-2299
                        Facsimile (512) 476-9504
                        Email: Velte@PTexans.com


Appellees:               Morris & Lisa Melchor

Counsel for Appellees:   Jay P. Lea
                         State Bar No. 24062843
                         NAMAN, HOWELL, SMITH & LEE, PLLC
                         8310 N. Capital of Texas Hwy.
                         Suite 490
                         Austin, Texas 78731
                         Telephone (512) 479-0300
                         Facsimile (512) 474-1901
                         Email: JLea@NamanHowell.com




                                     ~ ii ~
                                        TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL ................................................. ii

TABLE OF CONTENTS ............................................................................... iii

INDEX OF AUTHORITIES.......................................................................... iv

STATEMENT OF THE CASE ...................................................................... vi

ISSUES PRESENTED.................................................................................. vii

    1. Did the Appellees have a duty to control the actions of minor
       children who were not in their legal custody or actual care? ............ vii

    2. Did the Appellees have a duty to control Mandy Edwards’
       and/or Jeremy Melchor’s supervision or discipline of their
       minor children? .................................................................................. vii

    3. Does Texas acknowledge a claim for negligent entrustment of
       real property? ...................................................................................... vii

    4. Does Section 302 of the Restatement of Torts (Second) provide
       an independent basis for establishing a duty of care when other
       law specifically denies the duty? ....................................................... vii

STATEMENT OF FACTS ............................................................................. 1

SUMMARY OF ARGUMENT ...................................................................... 3

ARGUMENT & AUTHORITIES ON ALL ISSUES .................................... 6

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

CERTIFICATE OF COMPLIANCE ............................................................ 18

CERTIFICATE OF SERVICE ..................................................................... 18




                                                        ~ iii ~
                                   INDEX OF AUTHORITIES

CASES

City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671(Tex. 1979) ............................................................................ 3

Joe v. Two Thirty-Nine Joint Venture,
145 S.W.3d 150, 156 (Tex. 2004)................................................................... 3

Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985)................................................................... 4

S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) ................ 4

D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) ........................... 4

Chon Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005) .................................... 4

El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) .......................... 4

Way v. Boy Scouts of Am., 856 S.W.2d 230, 233
(Tex. App.—Dallas 1993, writ denied) .......................................................... 4

Providence Health Ctr. v. Dowell, 262 S.W.3d 324 (Tex. 2008)................... 6

Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) ............................... 6

Carter v. Abbyad, 299 S.W.3d 892 (Tex. App.—Austin 2009, no pet.) ........ 6

Greater Houston Transp. Co. v. Phillips,
801 S.W.2d 523 (Tex. 1990)..................................................................... 6, 15

In re Martin, 147 S.W.3d 453
(Tex. App.— Beaumont 2003, pet. denied).................................................... 7

McCullough v. Godwin,
214 S.W.3d 793 (Tex. App.—Tyler 2007, no pet.) ........................................ 7

St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) .................................. 9

                                                    ~ iv ~
Scurlock v. Pennell, 177 S.W.3d 222
(Tex. App.—Houston [1st Dist.] 2005, no pet.) ........................................... 10

Bicknell v. Lloyd, 635 S.W.2d 150
(Tex. App.—Houston [1st Dist.] 1982, no writ)........................................... 13


STATUTES & RULES

TEX. R. CIV. P. 166a(c) ..................................................................................4

Tex. Fam. Code § 41.001 ................................................................................ 6

Tex. Fam. Code § 101.001 .............................................................................. 7


TREATISES

2 Restatement of Torts 2d, § 316 (1965) ........................................................ 8

2 Restatement of Torts 2d, § 302 (1965) ....................................................... 12




                                                      ~v~
                           STATEMENT OF THE CASE

         This case arises out of damages caused by a fire allegedly started by a minor

child,                    who was allegedly accompanied by another minor child,

                       The fire spread from to the Don and Carol Titel’s (the

Appellants) real property allegedly causing damages to their property.                  The

Appellants sued:

         1. Mandy Edwards (                         mother);

         2. Jeremy Melchor (                         father); and

         3. The Appellees, Morris and Lisa Melchor (owners of the real property on
            which Jeremy Melchor and Mandy Edwards resided. Morris and Lisa
            Melchor are the parents of Jeremy Melchor and the grandparents of


         Appellants’ Third Amended Petition1 complains generally that Appellees

were negligent because (1) they failed to control the individuals on the property

and (2) allowed their adult son, Jeremy, to possess the land and live there with his

children which created a dangerous situation.

         The trial court granted Appellees’ traditional motion for summary judgment2

which argued that Appellees do not owe a duty to Appellants as a matter of law.

         Appellants now challenge the trial court’s order granting summary judgment

as to Appellees.
1
  Appellants Third Amended Petition was filed in response to Defendants Motion for Summary
Judgment and was the live pleading at the time the Motion for Summary Judgment was gratned.
2
  Appellees and Jeremy Melchor all moved for summary judgment. Jeremy Melchor’s motion
was denied while Appellees’ motion was granted.
                                           ~ vi ~
                               ISSUES PRESENTED3

                                       Issue No. 1

Did the Appellees have a duty to control the actions of minor children who were
not in their legal custody or actual care?

                                       Issue No. 2

Did the Appellees have a duty to control Mandy Edwards’ and/or Jeremy
Melchor’s supervision or discipline of their minor children?

                                       Issue No. 3

Does Texas acknowledge a claim for negligent entrustment of real property?


                                       Issue No. 4

Does Section 302 of the Restatement of Torts (Second) provide an independent
basis for establishing a duty of care when other law specifically denies the duty?




3
  Appellants’ brief identifies the following issue for this courts consideration: “Grant of
Summary Judgment was Improper.” Appellees have attempted to characterize Appellants
arguments against summary judgment as “issues” herein.
                                          ~ vii ~
                            STATEMENT OF THE FACTS

       Appellees, Morris and Lisa Melchor are the owners of rural property located

at 693 Pickett Lane, Liberty Hill, Texas (the “Property”).4                  The property is

improved by a home.5 At all relevant times the Property and home were generally

occupied and under the control of Jeremy Melchor, Appellees’ adult son.

Appellees do not live on the Property and it is uncontested that their son Jeremy

Melchor was given full control of the Property.6

       The summary judgment evidence in this case is clear – on July 11, 2011,

                  started the fire in question at a time when he was being supervised

by his mother, Mandy Edwards.7 On the day in question, Mandy Edwards, Jeremy

Melchor’s girlfriend, was staying in the home and caring for the children while

Jeremy was at work at Smokey Mo’s BBQ.8                    After the fire,

admitted to his mother that he had learned to start fires in Boy Scouts and had

started the fire in question.9 Appellants contend that the fire marshal report is




4
  See Plaintiffs’ Third Amended Petition at p.1-2 (CR 56-57).
5
  See Appellees Brief at p. 6-7.
6
  See Plaintiffs’ Third Amended Petition at p. 2 (CR 57) (stating that the property was turned
over to Jeremy Melchor); See also Appellants Brief at p. 8 (stating that Jeremy Melchor had been
given “all authority to control the conditions on [Appellees] property”).
7
  See Exhibit B to Defendants’ Motion for Summary Judgment, Oral Depo. of Mandy Edwards,
at pp. 18 & 34 (CR 42 & 44).
8
  See id. at p. 18 (CR 42); see also Exhibit A to Defendants’ Motion for Summary Judgment,
Oral Depo. of Jeremy Melchor, at p. 30 (CR 32).
9
  See Mandy Edwards Depo. at pp. 34 & 37 (CR 44-45).
                                             ~1~
evidence that                       also started the fire in question.10 However, the

report confirms that          started the fire. Deputy Fire Marshal Daniel Berger's

report states that “       stated he picked up some grass, lit it with the lighter, and

then placed it on the ground.11 The fire quickly grew in size and the kids were

unable to extinguish it.”12 According to the report,                claimed that he and

            had lit grass on fire earlier, and that they had “put it out by stomping on

it.”13 Yet, there is no evidence, nor do Appellants claim, that this earlier fire is

responsible for destroying their property.14 Instead, the report indicates that it is

the second fire, the fire                       admits he started, which grew out of

control.15 The only reference to                ’s potential involvement found in the

report is a statement that        told Deputy Berger that              told him to start a

fire.16

          Accordingly, the evidence is clear that                     actually started the

fire. At the time of the incident in question,                       permanently resided

with his biological father in Alabama and was temporarily visiting his mother.17


10
   See Plaintiffs’ Response to Defendants’ Motion for Summary Judgment at p. 2 (SCR 6).
11
   See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” 8th unmarked
Exhibit at 12 (CR 32).
12
   Id.
13
   Id.
14
   Id.
15
   Id.
16
   Id.
17
   Exhibit A to Defendants’ Motion for Summary Judgment, Oral Depo. of Jeremy Melchor, at p.
9, 15-16 (CR 26-27).
                                           ~2~
Neither                    nor Mandy Edwards are related by blood or marriage to

Appellees.18 Furthermore, the summary judgment evidence indicates that Jeremy
                                                                                          19
Melchor never took responsibility for disciplining or supervising

                             was in Jeremy Melchor’s legal custody and living

permanently on the Property under the care of her father.20 However, like                      ,

                    was under the actual care of Mandy Edwards at the time of the

incident in question.21 It is undisputed that Appellees were not at the Property on

July 11, 2011 or leading up to the events in question and were not charged with the

care of the children at the time.22

                        SUMMARY OF THE ARGUMENT

       The function of a summary judgment is to eliminate patently unmeritorious

claims and defenses, not to deprive litigants of the right to a jury trial. City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979). A

trial court's order granting a traditional motion for summary judgment is subject to

de novo review. Joe v. Two Thirty-Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.

2004). The traditional summary judgment movant has the burden of showing that

no genuine issue of material fact exists, and that it is entitled to judgment as a


18
   See id.; see also Mandy Edwards Depo. at pp. 8 & 19(CR 39 & 43).
19
   See Jeremy Melchor Depo. at pp. 16, 22, 23 (CR 27-29).
20
   See id. at pp. 13-14 (CR 24-25).
21
   See Mandy Edwards Depo at p. 18 (CR 42).
22
   See Third Amended Petition at pp. 2-3 (CR 57); see also Mandy Edwards Depo. at p. 16 (CR
40)
                                           ~3~
matter of law. TEX R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548 (Tex. 1985).    As defendants, the Melchors are entitled to summary

judgment if they conclusively negated an essential element of Appellants’

negligence cause of action. S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215

(Tex. 2002).

      The Melchors sought a traditional summary judgment arguing that they

owed no duty of care to their neighbors as a matter of law based on the facts as

pled. A negligence cause of action requires a legal duty owed by one person to

another, a breach of that duty, and damages proximately caused by the breach. D.

Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) (citing El Chico Corp. v.

Poole, 732 S.W.2d 306, 311 (Tex. 1987)). Duty, the threshold inquiry in any

negligence case, is a question of law. Chon Tri v. J.T.T., 162 S.W.3d 552, 563

(Tex. 2005); Poole, 732 S.W.2d at 311. A duty is a legal obligation that requires

the defendant to conform to a certain standard of conduct. See Way v. Boy Scouts

of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied).

      First the Appellants claim that the Melchors were negligent by failing to

control the various individuals on their property. Because the law generally does

not impose a duty to control the acts of another person to prevent harm to third

parties absent certain special relationships or circumstances (and no such

relationships or circumstances are present), the Melchors do not owe Appellees a


                                      ~4~
duty to control                                          Mandy Edwards or Jeremy

Melchor.

      Next, Appellants claim that the Melchors were negligent in “creating a

dangerous situation.” In support of this claim the Appellants generally allege that

a dangerous situation was created when Appellants entrusted the Property to

Jeremy Melchor because Jeremy Melchor had children. However, Texas has not

extended claims for negligent entrustment to include entrustment of real property.

Negligent entrustment only applies to chattels. Because Appellants only factual

allegation is that the Property was negligently entrusted to Jeremy Melchor, the

facts do not support a finding of a duty. Finally, Section 302 of the Second

Restatement of Torts, upon which Appellants heavily rely, does not apply to the

determination of a duty and has only been cited in one Texas case that involved

significantly different facts than the case before the court. Section 302 and its

companion sections 302A and 303B characterizes certain conduct that involves an

unreasonable risk of harm as negligent conduct. However, using Section 302 as a

front, Appellants would have the Court apply a very broad duty to landowners who

allow children (or whose invitees allow children) on their property, because

according to the arguments of Appellants, children are by nature uncontrollable by

their parents and it is foreseeable that all children will start fires that damage third

party properties.


                                         ~5~
        Because no duty exists as a matter of law, the Court should affirm the trial

court’s summary judgment in favor of Appellees.

             ARGUMENT AND AUTHORITIES ON ALL ISSUES

   A.      Appellees do not owe a duty to third parties to control the actions of
           minor children who are not in their legal custody or actual care.

        Appellants contend in their Third Amended Petition that Appellees

negligently exercised control over their invitees and persons permitted to visit and

stay upon the premises. However, Texas law does not impose a duty to control the

actions of invitees. Rather, Texas law generally imposes no duty to control the

acts of another person to prevent harm to third parties absent certain special

relationships or circumstances. Providence Health Ctr. v. Dowell, 262 S.W.3d 324,

331 (Tex. 2008); Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000);

Carter v. Abbyad, 299 S.W.3d 892, 895 (Tex. App.—Austin 2009, no pet.).

Examples of relationships that have been recognized as giving rise to a duty to

control     include    employer/employee,       parent/child,   and    independent

contractor/contractee. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,

525 (Tex. 1990). The relationship between an owner of real property and their

tenants, invitees, and/or their tenant’s invitees have not been recognized in Texas

as one of these special relationships; nor should they be.

        TEXAS FAMILY CODE § 41.001 states that a parent or other person who has

the duty of control and reasonable discipline of a child is liable for the negligent
                                        ~6~
conduct of the child if the conduct is reasonably attributable to the negligent failure

of the parent. See TEX. FAM. CODE § 41.001. Furthermore, the Family Code

provides detailed definitions construing the parent child relationship. See TEX.

FAM. CODE § 101.001, et seq. The law does not favor shifting the duties imposed

by the Family Code from the parent to a non-parent absent unique circumstances,

such as when the parent is absent and/or the non-parent has assumed custodial

responsibilities. In re Martin, 147 S.W.3d 453, 456 (Tex. App.— Beaumont 2003,

pet. denied); McCullough v. Godwin, 214 S.W.3d 793, 808 (Tex. App.—Tyler

2007, no pet.)23. In this particular instance, the summary judgment evidence in this

case is clear –                    started the fire in question at a time when he was

being supervised by his mother, Mandy Edwards. Even if the Court were to

determine that there is some evidence that                              started the fire in

question,                     is not the child of Appellees nor had she been placed in

their custodial care. Therefore, the duty to control the minor children at issue

should not shift to Appellees. See id. Counsel for Appellees is aware of no Texas

case that holds that mere ownership of the property upon which a child resides

subjects a non-parent owner to custodial responsibility for a child. Such a holding

would have unthinkable consequences to property owners across the state.



23
  The uncontroverted evidence is that Mandy Edwards assumed custodial care of the children in
question the day of the fire.
                                            ~7~
Accordingly, Appellees do not have a duty to control the actions of

nor

   B.      Did the Appellees have a duty to control Mandy Edwards’ and/or
           Jeremy Melchor’s supervision or discipline of their minor children?

        Appellants assert that Appellees “negligently failed to monitor and control

the actions of their invitees.” To the extent this statement is referring to Jeremy

Melchor or Mandy Edwards, Appellees do not have a duty (or a right) to control

the manner in which Jeremy Melchor and Mandy Edwards – two adults – parent

their children. Again, Texas law generally imposes no duty to control the acts of

another person to prevent harm to third parties absent certain special relationships

or circumstances. Providence Health Ctr., 262 S.W.3d at 331; Torrington, 46

S.W.3d at 837; Carter, 299 S.W.3d at 895. While the parent-child relationship

does place a duty on a parent to control a child, that duty only relates to minor

children. See, e.g., Restatement (Second) of Torts § 316 (1965) (stating that "[a]

parent is under a duty to exercise reasonable care so to control his minor child"

(emphasis added).) No special relationship or circumstance exists that confers a

duty on Appellees to control either of the adults in question. In an apparent

attempt to create a duty where none exists, Appellants assert that Jeremy Melchor

is an agent of, or in a joint enterprise with, Morris and Lisa Melchor for the

purpose of raising children. Appellants argue that Jeremy is permitted to live on


                                        ~8~
the property for the purpose of providing a stable home and wholesome

environment for the Melchors’ grandchildren, and that this creates an agency or

joint enterprise relationship for that purpose.     Appellants make this argument

without citing any case that extends agency or joint enterprise liability to the act of

child rearing.

      First, Jeremy, can not be the Melchors’ agent for raising or supervising the

children because the Melchors’ do not have the duty to raise or supervise the

children in the first place. See discussion supra Part A. Secondly, the Melchors

can not be in a joint enterprise with Jeremy for the purpose of raising children

because a joint enterprise can not exist without an equal right to voice in the

direction of the enterprise (in this case providing care/supervision for children).

See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002) (listing the

elements of joint enterprise). Appellants do not contend that the Melchors had

(and they did not have) legal or actual custody of any of the children at issue.

Therefore, they do not have an equal right to voice in the direction of parenting

decisions.   Accordingly, no joint enterprise to parent the children can exist.

Therefore, it follows that Appellees do not owe Appellants a duty to control

Jeremy Melchor or Mandy Edwards’ parenting decisions and can not be liable for

Jeremy Melchor’s or Mandy Edwards’ alleged parenting failures under joint

enterprise or agency theories.


                                         ~9~
      C.      Texas does not Recognize a Claim for Negligent Entrustment of Real
              Property.

           Appellants’ Third Amended Petition alleges that Appellees were negligent

by “acquiring land in an area at high risk for wildfire and turning it over to their

‘never do well’ adult son, who in turn allowed young children to enter, reside,

and wander unsupervised upon their land.”24                Therefore, Appellants’ primary

complaint is that Appellees negligently entrusted the Property to Jeremy Melchor.

However, no court in Texas has recognized a claim for negligent entrustment of

real property.

           “Negligent entrustment in Texas applies only to chattels; Texas courts have

not extended the concept to include the entrustment of real property.” Scurlock v.

Pennell, 177 S.W.3d 222, 226 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A

trial court’s granting of summary judgment on a claim for negligent entrustment of

real property is proper. See id. at 227.

           Appellants’ brief requests the court to allow Appellants to maintain a cause

of action against Appellees because “negligence may lie in the creation of a

dangerous situation, although the final injury is activated by the conduct of a third

person.”25        Assuming this principle were to be applied in this case, the first

question should be “what conduct do Appellants allege created the dangerous


24
     See Third Amended Petition at pp. 2-3 (CR 57) (emphasis added).
25
     See Appellants’ Brief at pp. 19-20.
                                              ~ 10 ~
situation.” While Appellees’ brief spends considerable amount of time concerning

Jeremy’s conduct and various children’s conduct, the only indentified conduct of

Appellees (other than the failure to control the previously discussed adults and

children) is:

                 Appellees were aware that more than their own grandchildren
                 were being invited out to their land, but chose to exercise no
                 oversight control, other than to delegate to their son all
                 authority to control conditions on their property.26

          Accordingly, Appellants merely allege that Appellees should not have

entrusted the property to Jeremy. In Scurlock v. Pennell a vacation home owner’s

property caught on fire when an unknown third party broke into the uninhabited

vacation home. See 177 S.W.3d 222, 223 (Tex. App.—Houston [1st Dist.] 2005,

no pet.). Fire spread to the plaintiff’s neighboring property causing damages. See

id. The neighbor sued the homeowner claiming (1) that the absent property owner

negligently left the home unlocked and the utilities on, thereby inviting vagrants,

and (2) that the absent home owner negligently entrusted the home to a third party

who started the fire. See id. at 223-224. With respect to the first factual claim, the

court held that the property owner did not owe a duty to their neighbor to prevent

unknown criminals from breaking into the house and starting fires because the

event was unforeseeable. See id. at 223-225. With respect to the second claim, the



26
     See Appellants’ Brief at p. 8 (emphasis added).
                                               ~ 11 ~
court summarily held that negligent entrustment only applies to chattels and not

real property. See id. at 226.

           The real factual complaint in Appellants’ Third Amended Petition concerns

third parties’ (the two adults and children) behavior not a condition of the property.

The only activity Appellees are alleged to have engaged in is allowing Jeremy

Melchor and his children to reside on the property. Therefore, the only alleged

conduct associated with the creation of “a dangerous situation,” is Appellees

entrustment of the property to Jeremy Melchor, who had children. Since negligent

entrustment only applies to chattels, Appellees do not owe the Appellants a duty

regarding the entrustment of Appellees real property.

      D.      Section 302 of the Restatement of Torts (Second) does not provide an
              independent basis for establishing a duty of care because other law
              specifically denies a duty under the facts as pled and Section 302 not
              concerned with duty?

           Appellants argue that “Restatement of Torts (Second), Section 302, et seq.,

provides a basis for liability on facts like the one in this case.”27 However, the

question in this case is limited to whether or not the Appellants owed a duty of care

to the Appellees not to entrust property to Jeremy Melchor.

           Restatement of Torts (Second), Section 302, et seq. characterizes certain

conduct that involves an unreasonable risk of harm as negligent conduct. See 2

Restatement of Torts 2d, § 302, et seq. (1965). However, the first comment to

27
     Appellants’ Brief at p. 13.
                                          ~ 12 ~
Section 302 is quite clear with respect to the sections use for purpose of

establishing a duty:

      This Section is concerned only with the negligent character of the
      actor's conduct, and not with his duty to avoid the unreasonable risk.
      . . The duties of one who merely omits to act are more restricted, and
      in general are confined to situations where there is a special relation
      between the actor and the other which gives rise to the duty. . . If the
      actor is under no duty to the other to act, his failure to do so may be
      negligent conduct within the rule stated in this Section, but it does not
      subject him to liability, because of the absence of duty.

Restatement 2d of Torts § 302, comment a (emphasis added). Furthermore, the

one case in the history of Texas jurisprudence that mentions this section of the

Restatement addressed significantly different facts and did not recognize a duty

similar to the duty Appellants request this Court to recognize. In Bicknell v. Lloyd,

635 S.W.2d 150 (Tex. App.—Houston [1st Dist.] 1982, no writ), which Appellants

cite in support of their arguments, a minor child was injured when another minor

child misappropriated a three wheeled motorized cart from the Defendant. See id.

at 151. In that case, the Defendant admitted that at the time the cart was stolen by

children he had full control and responsibility for the cart. See id. at 152. On

several occasions prior to the incident in that case, children had stolen the car from

the Defendant when Defendant had left the key in the ignition.                See id.

Additionally, the cart was similar to an attractive nuisance in that children would

crowd around the cart or climb on the cart when in use. See id. The Plaintiff and a

third party testified that Defendant continued to leave the key in the ignition and
                                        ~ 13 ~
left they key in the ignition when the injury occurred. See id. The court held that

it was proper for a jury to consider the Defendant’s negligence and reasoned that:

             [a] party may be held responsible for a negligent omission
             which involves an unreasonable risk of harm to another through
             the foreseeable action of a third person. Restatement (Second)
             of Torts § 302, comment j (1965). Thus, even though an injury
             is the result of the unauthorized action of a third party, the party
             in possession or control may be liable if the character of the
             property is such that it "affords a peculiar temptation or
             opportunity for intentional interference likely to cause harm."
             Restatement (Second) of Torts § 302B, comment e, section G,
             illustration 14 (1965).
      See id. (emphasis added).

      The facts before this Court are very different. In this case the “property” at

issue (raw land) is not “such that it affords a peculiar temptation.” Additionally,

and importantly, the Defendant in the Bicknell case was not the owner of the cart.

See id. At trial, the Defendant testified that his stepdaughter was the owner of the

cart yet he was in possession and control of the cart. See id. Accordingly, the

person who was actively controlling the cart at the time of the incident was sued

and not the owner of the cart. Therefore, Appellants are requesting this Court to

extend the application of Section 302 well beyond its express intended application

and well beyond Bicknell’s application in order to create a duty in direct conflict

with well established legal principles.




                                          ~ 14 ~
       Appellants argue that the fire was foreseeable, based on an odd assertion:

“That children will play with fire is a matter of common human knowledge.”28

However, Appellants provide no legal basis for this claim. Instead Appellants

would have the Court characterize any landlord’s lack of knowledge as to a

tenant’s guests as “willful ignorance.” See id. at 7. No basis for such an assertion

exists in Texas law.

       The Appellants have furthermore failed to plead any fact or present any

evidence that Morris and Lisa Melchor should have known that the children under

the care of adults on the property would go unsupervised, play with fire, and cause

harm to a neighboring property. Such unforeseeable conduct is similar to the

conduct addressed by the Texas Supreme Court in Greater Houston Transp. Co. v.

Phillips, 801 S.W.2d 523 (Tex. 1990). In that case, the Court found a taxicab

company not liable for the conduct of its employee who caused grievous harm to a

third party. 801 S.W.2d 523, 526 (Tex. 1990). The plaintiff in that case asserted

that the taxicab company had a duty to control the actions of its employee. Id.

Further, the plaintiffs asserted that the taxicab company was negligent in creating a

situation that presented an unreasonable risk of harm by failing to instruct its

employee not to engage in dangerous activity, namely carrying a gun.                     Id.

However, because no similar incident had occurred previously, the Court held that

28
  See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” at 6 (emphasis
added) (SCR 5).
                                          ~ 15 ~
the employee’s actions were not foreseeable as a matter of law, and no duty to the

motorist to warn the company’s drivers not to engage in dangerous activity. Id.

The Court elaborated: “To hold that Yellow Cab created a dangerous situation by

failing to admonish its drivers not to carry guns is an unwarranted expansion” of

exceptions to the general rule that a person has no duty to control the conduct of

third persons. Id.

      Instead of relying on well-settled law from binding authority, Appellants

would have the Court impose an absurd duty of care on the Appellees based on the

bizarre and unsupported assertion that it was entirely foreseeable that children from

the big city brought to such a rural setting, and allowed to roam at will

unsupervised upon thickly wooded and brush-covered land, would at some point

likely play with fire and cause grievous harm. The law should not impose a duty

on Appellees to direct parents on how to instruct or monitor their children.

Furthermore, Appellants’ only claim as to what Appellees did or failed to do is

entrust real property to Jeremy Melchor. Such allegation does not support a claim

for negligence and no duty exists.

      Because negligent entrustment claims are limited to chattels and Section 302

of the Restatement is inapplicable to the issues and facts before the Court,

Appellees do not owe a duty to Appellants not to “create a dangerous situation”

when the action in question is merely entrusting property to an adult with children.


                                       ~ 16 ~
                        CONCLUSION AND PRAYER

      The factual allegations in Appellants’ Third Amended Petition only raise

negligence claims based on Appellees alleged failure to control children that are

not in the legal or actual custody and/or failure to control adult third parties

without any special relationship with Appellees. Because the law does not impose

a duty to control such third parties for the protection of Appellees, summary

judgment was proper. Furthermore, Texas has not extended negligent entrustment

claims beyond chattels.     Therefore, no duty exists to Appellants.       Finally,

Restatement of Torts Section 302 does not alter other legal principles or support

the creation of a new duty.     Wherefore, Appellees Morris and Lisa Melchor

respectfully pray that this Court affirm the trial court’s Summary Judgment.

                                Respectfully submitted,

                                NAMAN, HOWELL, SMITH & LEE, PLLC
                                8310 N. Capital of Texas Highway,
                                Suite 490
                                Austin, Texas 78731
                                (512) 474-1901
                                FAX (512) 474-1901


                                By: ___/s/ Jay P. Lea____________
                                      Jay P. Lea
                                      State Bar No. 24065923
                                      jlea@namanhowell.com

                                ATTORNEYS FOR APPELLEES



                                      ~ 17 ~
                      CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i), I hereby certify that the foregoing Brief of
Appellee was computer-generated using Microsoft Word for Windows (2007).
According to the word-count function of that program, this Brief of Appellee
contains 4,206 words, excluding any portions of this Brief exempted by TEX. R.
APP. P. 9.4(i)(1).


                                       __/s/ Jay P. Lea _____________
                                       Jay P. Lea


                         CERTIFICATE OF SERVICE

      Pursuant to TEX. R. APP. P. 9.5, I hereby certify that a true and correct copy
of the foregoing Brief of Appellee was served via facsimile and via e-service to
following counsel on this 10th day of April, 2015.

Paul C. Velte, IV
109 E. Hopkins St.
Suite 204
San Marcos, Texas 78666
Facsimile (512) 476-9504
Velte@PTexans.com



                                       __/s/ Jay P. Lea _____________
                                       Jay P. Lea


                                     Appendix

   1. Plaintiffs’ Third Amended Petition
   2. Appellants Motion for Summary Judgment

                                       ~ 18 ~
                                                          No. C 1-CV-12-008224

            OONTITEL
            CAROLTITEL                                           §         IN THE COUNTY COURT
            Plaintiffs
            v.                                                   §         ATLAW#2

            JEREMY DAVID MELCHOR.                                §          TRAVIS COUNTY, TEXAS
            MORRIS G. MELCHOR.
            LISA MELCHOR,
            MANDY EDWARDS
            Defendants

                                                        THIRD AMENDED PETITION

            TO THE HONORABLE JUDGE OF SAID COURT:

                    Comes now Plaintiffs to make this complaint of the actions of Defendants and their
            children, for damages caused when one or more of Defendants' children intentionally or
            negligently started a fire when a burn ban was in effect on July 11, 2011. For causes of action,
            Plaintiffs would show the Court:

                                                            I. Parties & Venue

                      Plaintiffs are individuals. This cause of action arose in Travis County. Defendant Jeremy

             Melchor is an individual, who resides in Travis County, Texas, and is already a party to this suit.

             Defendant Mandy Edwards is an individual residing in Travis County, who may be served with

             citation at 693 Pickett Ln., Liberty Hill, TX 78642, or where-ever he or she may be found.

             Defendants Morris and Lisa Melchor are individuals who have answered this suit.


IIIII~ 11~1111111111111111111111111111111111111111111
000814761
                                                            II. Discovery Level

                       Plaintiffs believe discovery should proceed under Rule 190.3 (level II). Plaintiffs seek

             monetary relief in an amount between $200,000.00 and $250,000.00, and within the

             jurisdictional limits of this court.
                                 III. Cause of Action: Negligence

A. By parents or those with parental authority.

       On or about July 1J, 2011, children of two Defendants, Jeremy Melchor and Mandy

Edwards, negligently or intentionally set a fire to grass, at a time of extreme drought and dry

conditions throughout the State of Texas. This fire quickly raged out of control and consumed a

large swath of trees as it moved toward Plaintiff's residence. Plaintiffs believe the children were

poorly supervised by adults and Defendants were negligent in providing supervision, and also for

allowing the children to possess a cigarette lighter used to start said fire. Defendants bad the duty

of control and reasonable discipline oftbese children and are vicariously liable under Chapter 41,

Texas Family Code.

        They are also liable for their own negligence as the possessors of land by failing to do

anything a reasonable person would do in possession of highly combustible land in its natural

(and drought-stricken) state to prevent a wiJdfire intentionally or negligently set by children they

invited and allowed to roam unsupervised upon the premises and surrounding lands, as in this

case, where children were allowed to go unsupervised with a cigarette lighter in hand. They

owed a duty to surrounding property owners to take reasonable steps to prevent any type of fire

during a time when a county burn ban was in effect. By violating a county ordinance designed to

prevent the very type of harm that Defendants' negligence caused, such constitutes negligence per

se.

B. By landowners.

        Defendants Morris and Lisa Melchor, (hereafter "Senior Melchors") as the owners of the

property, negligently created a recipe for disaster by acquiring land in an area at high risk for

wildfire and turning it over to their 'never do well' adult son, who in tum allowed young children


                                                  2
to enter, reside, and wander unsupervised upon their land, and neighboring heavily wooded

property as well. Said defendants negligently exercised control over their land and over their

invitees and persons pennitted to visit and stay upon their premises. Defendants negligently

failed to monitor and control the activities of their invitees while upon the Defendant's land,

which activities caused grievous hann to Plaintiffs. They failed to do anything a reasonable

owner would do in possession of highly combustible land in its natural (and drought-stricken)

state to prevent a wildfire intentionally or negligently set by children knowingly invited upon the

premises.

        At all material times, Defendant Jeremy Melchor was acting as the agent of the Senior

Melchors, in his role as manager of his parent's premises, or they were working together in a joint

enterprise for the purposes of providing a good home for three children residing there, and to fix

up the home and property, for its eventual resale.

                                             PRAYER

        The Plaintiffs pray that this cause be tried by jury. and that final judgment be given for
their actual damages. in addition to any such other relief. both in law and in equity, to which
Plaintiffs may prove themselves justly entitled.


                                               Respectfully Submitted,


                                               Mt1h
                                               Paul C. Velte IV
                                               109 E. Hopkins St., Suite 204
                                               San Marcos, TX 78666
                                               512-353-2299 (San Marcos)
                                               Fax 512-476-9504
                                               Email: velte@ptexans.com
                                               Bar #20541700
                                               ATTORNEY FOR PLAINTIFFS



                                                  3
                               CERTIFICATE OF SERVICE

      I certifY that I have served a copy of this document upon all counsel of record on October
22,2013.




                                           Paul C. Velte IV




                                               4
                                                                                          FErt
                                                                                          138®ptemb®'27P12:1S
                                                                                          Dm® 1
                                                                                          County.Ctesk
                                                                                          Tmwh County

                                 CAUSENO.C-l.CV-12-008224

DONTITEL&                                                  IN THE COUNTy COURT
CAROL TITEL,
                                              §
         Plaintiffs,                          §

V.
                                                                        AT LAW NO. 2
JEREMY DAVID MELCHOR,
MORRIS G. MELCHOR,
LISA MELCHOR and
MANDY EDWARDS,
                                              §
         Defendants.                          §             TRAVISCOUNTT,TEXAS


      DEFENDANTSJEREMYDAVIDMELCHOR,MORRISG, MELCHORANDLISA
                       MELCHOR'S MOTION FOR SUMMARY JUDGMENT


TO THE HONORABLE JUDGE OF SAIDCOURT:

         COMESNOW Defendants,JEREMYDAVIDMELCHOR,MORRIS0.MELCHORand

LISA MELCHOR, filing this Motion for Summary Judgment, and in support thereof, would
respectfully show unto the Court the following:

                                         INTRODUCTION

 1.      Plaintiffs have broughtthis lawsuit claiming they suffered harm asa result ofa fire that
originatedonneighboringproperty ownedbyDefendantsMorrisandLisaMelcbor. Plaintiffs'First
AmendedPetition Sectionffl, ^ 1, 2.

2.        Plaintiffs claim that Defendant Jeremy Melchor negligently exercised a duty ofcontrol and

reasonable discipline over a child, who setfire to grass ontheproperty owned byDefendants Moms
andUsaMelchor,andthefirespreadtoproperty ownedbyPlaintiffs. PlaintiffsallegethatChapter


 DEFENDANTS'MOTIONFORSUMMARYJUDGMENT                                         PAGEt OF 8
 102519589. DOC/3)
41oftheTexasFamilyCodeprovidesthebasisforDefendantJeremyMelchor'sdutyofcare. Id.
Section III, 11.

3.      PlaintiffsfurtherclaimthatDefendantsMorrisandUsaMelchor,asownersoftheproperty,
negligentlyexercisedcontroloverpersonsallowedtovisitandstayontheirproperty. Id.Sectionffl,
112.
                            SUMMARYJUDRMENTSTANDARD
4.      To prevail on a motion for summaiy judgment, a party must conclusively establish the
absence ofanygenuine question ofmaterial factandthatheisentitled tojudgment asa matter of
law, TEX. R. Civ. P. 166a(c).

5.      A defendantwhoconclusively negatesatleastoneoftheessentialelements ofa causeof
action is entitled to summary judgment asto that causeofaction. Randall's FoodMarkets, Inc. v.
Johnson, S9\ S, W.2d640, 644(Tex. l995); WomickCo. v. C(uw, 856S. W.2d732, 733CTex. 1993).
 All doubts abouttheexistence ofa genuine issue ofmaterial factareresolved against the movant.
Randall's, W\ S.W.2dat644;GreatAm. Reserve Ins. Co.v. SanAntonio Plumbing Supply Co.,391
 S.W.2d41, 47(Tex. l965).
                                SUMMARY JUDGMENT EVIDENCE


 6.      To support the facts inthis motion. Defendants include thefollowing summary judgment
 evidenceinanappendixfiledwiththismotionandincorporatestheevidenceintothismotionby
 reference.

         ExhibitA: SelectedExcerpts oftheVideotaped OralDeposition ofDefendantJeremyDavid
         Melchor;

         Exhibit B: Selected Excerpts of the Videotaped Oral Deposition ofDefendant Mwidy

 DEFENDANTS'MCmON FORSUMMARYJUDGMENT                                     PAGE 2 OF 8
 (02S19W.DOC/1',




                                                                                                 \^
       Edwards; and

       ExhibitC: SelectedExcerptsoftheOralDepositionofDonaldLeeTitel.
                               SUMMARYJUpffWWFACTS
7.     JeremyMelcherresidesat693PickettLaneinLibertyHill,Texasalongwithhisgirifnend,
MandyEdwards. Exhibit"A," MelchorDep.13:24. 14:4;Exhibit"B," EdwardsDcp.18:23-19:4.
Jeremy is a tenant on the property, occupying pursuant to anoral leasewith his father Morris
Mclchor andstepmother UsaMelchor, whoowntheproperty at693 PickettLane. Exhibit"A,"
MelchorDep. 7:14-8:6.

8.      Mandy Edwardsismother totwo minor children,                        and               fi-om
previous relationships. Exhibit "A," Melchor Dep. 14:19-15:10.
9.                        resides in Alabama with his father. Exhibit "A," Melchor Dep. 16:16;

Exhibit "B," Edwanls Dep. at 8:15-20.

10.                       does not reside, and never has resided, at 693 Pickett Lane. Exhibit "B/

Edwards Dep. at 7:25. 8:20; Exhibit "A," Melchor Dep. 16:2-12, Jeremy Melcher is not
               parentorguardian,nordoesbeexerciseanyparentalcontrolordisciplineover
              Exhibit "A," Melchor Dep. 22:8.24:1.

 11.    InJulyof2011                     wasinLibertyHill,Texasvisitinghismotherandstaying
 withherat693PickettLane. Exhibit"B," EdwardsDep.16:1-5. Onthemorningofjuly 11, 2011,
                    starteda fireina grassyareanearoraroundthehouseat693PickettLane. /</.at
 37:1-18. The fire spread to neighboring property ownedbyPlaintiffs. allegedly causing property
 damage. Exhibit"A." Melchor Dep. 31:18-20;Exhibit"C," Titel Dep.39:23-43:17
 12.     OntheeveningofJuly11, 2011,                      toldhismotherthathehadstartedthefire.

 DEFENDANTS'MOITONFORSUMMARYJUDGMENT                                         PAGE3 OF 8
 <02S19S»9.00C/3l




                                                                                                     B
Exhibit"B," EdwardsDep. 34:8.23, 37:1-18.

13. MandyEdwards                         mother,waspresentat693PickettLanewhenthefire
started. Exhibit"A," MelchorDep.28:8-19, 30:18.23;Exhibit"B," EdwardsDep.39:1.17. No
otheradult,includingDefendants JeremyMelchor, MorrisMelchorandLisaMelchor, werepresent
at 693 Pickett Laneorexercising anyparental control over                  when the fire started.
Exhibit "A," Melchor Dep. 28:8-19, 30:18. 23; EKhibit«B," Edwards Dcp. 39:1-17.
                              ARGUAffiNT & AUTHORITIES

       A. DefcndanS Jwemy Melchor is entitled to Summary Judpaent because he did not
        oweanyduty under theTexas Family Codeto exercise control over
14.     Defendant Jeremy Melchor is entitled to judgment as a matter of law because the
uncontradictcdsummaryjudgmentevidenceestablishesthatthereisnogenuineissueofmaterialfact
regarding the following element(s) ofAc PlainttfFs cause ofaction. To establish tort liability a
plaintiffmust initiallyprovetheexistenceandbreachofa dutyowedtohimbydefendant.Ofis
 EngineeringCorpv.dark,668S.W.2d307, 309(Tex.1983). Inthepresentcasetheexistenceof a
 duty simply doesnot exist,

 15.    Texas lawgenerally imposes noduty tocontrol theactsofanotherpersonto prevent harmto
 thirdpartiesabsentcertainspecialrelationships orcircumstances. Providence HealthCtr.v.Dowell,
 262 S.W.3d324, 331 Qex. 2008); Torrington Co. v, Stutzman, 46 S. W.3d 829, 837(Tex. 2000);
 Carterv. Abbyad,299S.W.3d892,895(Tex.App.Austin2009). TheparenVchildrelationshipis
 oneexceptiontothisgeneralrule. GreaterHoustonTramp. Co.v, Phillips.801S.W.2d523,525
 (Tex. 1990); TEX. FAM. CODEANN. §§41. 001(1), 151. 001(d).



 DEI'ENOANTS' MOTION FOR SUMMARY JUDGMBNT                                  PACE 4 OF 8
 102510W. DOC/3)
16.       UndertheTexasFamilyCode,a parentorotherperson"whohasthedutyofcontrol and
reasonable discipline ofa child" may beheld liable forproperty damage caused bythe negligent
conduct ofthe child that is reasonably attributable to the negligent failure ofthe parent or other

person to exercise that duty. TEX. FAM. CODE ANN. § 41. 001(1).
17.       There is no basis under Texas law for imposing this duty of control and discipline on an

unrelated third-peraon whohasnotvoluntarily assumed anyparental rights orobligations overthe
child. See Coons-Andersen v. Andersen, 104 S. W.3d 630, 635 fTex. App. -Dallas 2003, no pet. );

Cwninghamv. Ansorena-Cunnlngham, 2009WL2902718*6-7CTex.App.AustinAug.26, 2009).
In fact, the law does not favor shifting the duties imposed bythe Family Code from the parent to a

non-parent absentuniquecircumstances notpresentinthecaseathand. See,e, g; TEX.FAM,CODE
ANN. § 151.001(d); Inre Martin, 147S.W.3d453, 456(Tex. App.-Beaumont 2003,pet, denied);
McCullough v. Godwin, 214 S.W. 3d 793, 808 (Tex. App. -Tyler 2007, no pet).

 18.      Inthealternative, i fJeremyMelchordidhavea dutyundertheTexasFamilyCode,hedidnot
breachthatdutybecausethefirewasnotforeseeable. SeeTimberwalkApartments. Partners, Inc.v.
Cam, 972 S.W.2d 749, 756 fTex. 1998); Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex.
 1999).

          B. DefendantsMorris andLisaMelchorareentitled to SummaryJudgmentbecause

          theydidnotoweanydutytoPlaintifftoprevent thedamagesunderthecircumstances.
 19.      Defendants Morris andLisaMelchorareentidedtojudgment asa matter oflawbecausethe

 uncontradicted summaryjudgment evidenceestablishes thatthereisnogenuineissueofmaterial fact
 regarding thefollowing elements) ofthePlaintiffs causeofaction. To establishtort liability a
 plaintiff must initially prove the existence and breachofa duty owed to him bydefendant. Otis

 DEFENDANTS' MOTION FOR SUMMARY JUDOMENT                                     PAOESOFS
 (02$19S89. DOC/3)




                                                                                                     15
EngineeringCar,668S.W.2dat309. Inthepresentcasetheexistenceofa dutysimplydoesnot
exist.

20.      TexaslawgeneraUyimposesnodutytocontrol theactsofanotherpersontopreventharmto
third parties absentcertainspecial relationships orcircumstances. Providence HealthCtr., 262
S.W.3dat331;Tomngton, 46S.W.3dat837;Carter.299S.W.3dat895. Examplesofrelationships
that have been recognized as giving rise to a duty to control include employer/employee,
parent/child, andindependent contractor/contractee. Greater HoustonTransp. Co,801S.W.2dat
525.

21.      There isnobasisunderTexas lawfor imposing a duty onlandowners to control theconduct

ofunknown third-persons on their property.

22.      Inthe alternative, ifMorris and LisaMelcbor didhave a duty. theydidnot breach that duty
 because the fire wasnot foreseeable. SeeTimberwalk, 972 S,W.2dat 756; Melton, 5 S. W. 3dat655.

                                   ALTERNATIVERELIEF

 23.     Inthealternative, iftheCourtdeniesanypartofDefendants' motion forsummaiyjudgment,
 DefendantsasktheCourttosignanorderspecifyingthefactsthatareestablishedasa matteroflaw
 anddirecting anyfurther proceedings asarejust. SeeTEX.R.Civ. P. 166a(e).
                                         CONCLUSION

 24.      Defendants Jeremy Melcher, Morris Melchor andLisaMelchor areentitled tojudgment as a
 matteroflaw. Thisisanactionbasedonnegligence,yetDefendantsJeremyMeicherandMomsand
 LisaMelchordidnotoweanydutytoPlaintiffstopreventthedamagesunderthecircumstancesof
 thiscase.Evenifa dutytopreventdamagesdidexist,noneoftheseDefendants breachedtheirduty.
 Thesummaryjudgment factsleadtoonlyoneconclusion:                        startedthefire,andthere

                                                                           PAGE 6 Oi: 8
  DEFENDANTS'MOTIONFORSUMMARYJUDGMENT
  (02J19S89.DOC/1}




                                                                                                   }k
isnolegalbasisforimputing                     legalliabilityontoDefendantsJcrcmyMelchor,
Morris Melchor or Lisa Melchor.

25.    Therefore, thesummaryjudgment evidenceconclusively showsthattherearenogenuine
issuesofmaterial factregardingthePlaintiffs' claims,andDefendantsJeremyMclchor,Moiris
Melchor, andLisaMelchor areentitled tojudgment asa matter oflaw.
                                           PRAYER

       WHEREFORE,DefendantrequeststhatthisCourtgrantthismotionandsignanorderfor
final summaiyjudgment.

                                           Respectfullysubmitted,
                                           NAMAN, HOWELL,SMTTH& LEE, PLLC
                                           8310 Capital ofTexas Highway North, Suite 490
                                            Austin, Texas 78731
                                            (512)/|79.0300
                                            FAX^12)474. 1901



                                            BY:
                                                   JamesW. Goldsmith, Jr.
                                                   StateBarNo. 24051570

                                            AfrORNEYS FOR DEFENDANTS JEREMY
                                            DAVID MELCHOR, MORRIS 0. MELCHOR and
                                            USA MELCHOR




 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT                               PAOE70F8
 (OM19589.DOC/3)




                                                                                           n.
                                 NOTICE OF REARING


      Be advised that the above andforegoing Motion for Summary Judgment is sethearing on

Tuesday,October29, 2013at9:00a.m. inthe^uo<yCourtatLawNo.2 ofTravisCounty, Texas.



                                                  W. Goldsmith, Jr.


                               CERTIFICATEOFSERVICE


       This isto certify that a true andcorrect copy oftheabove andforegoing wasserved uponthe

parties andcounsel ofrecordforPlaintiff, asshownbelow, inaccordance withRules21and21(a)of
the Texas Rules of Civil Procedure, on the 27th day ofSeptember, 2013.


PaulCVelteIV                        Sent Via Fscsimttc to: (512) 476-9504
Attorney at Law
109E. HopkinsSt., Ste. 204
San Marcos, TX 78666

MandyEdwards                        Sect Vis Certified Mail, Return Receipt Requested
693 PickettLane
Leander,TX 78641




                                                 FW.Goldsmith, Jr.




DEFENDANTS' MOTION FOR SUMMARY JUDOMENT                                  PAGE 8 OF 8
(02519589. DOC/3}
JEREMY DAVID MELCHOR
                                                                     3/4/2013



                      CAUSE NO. C-l-CV-12-008224


   DON TITEL & CAROL TITEL,                  ) IN THE COUNTY COURT
           Plaintiffs,               )
                                 )
   vs.                           ) AT LAW NO. 2
                                 )
   JEREMY DAVID MELCHOR,                 >
              Defendant.             ) TRAVIS COUNTY, TEXAS




                    VIDEOTAPED ORAL DEPOSITION OF

                           JEREMY DAVID MELCHOR

                             MARCH 4, 2013



         VIDEOTAPED ORAL DEPOSITION OF JEREMY DAVID MELCHOR,
   produced as a witness at the instance of the Plaintiffs,
    and duly sworn, was taken in the above-styled and numbered
    cause on the 4th of March, 2013 from 1:03 p. m. to 2:25

    p. m., before Amber Kirton, CSR, in and for the State of
    Texas, reported by machine shorthand, at the law offices
    of Naman, Howell, Smith fi Lee, PLLC, 8310 Capital of Texas
    Highway, Suite 490, Austin, Texas, pursuant to the Texas
    Rules of Civil Procedure and the provisions attached
    hereto.




                   U. S. LEGAL SUPPORT - AUSTIN, TEXAS
                              (600) 734-4995



                                                                                n
                                                               3/4/2013
     JEREMY DAVID MELCHOR



I                                 INDEX

2

3       Appearances

4       JEREMY DAVID MELCHOR
5             Examination by Mr. Velte
                                                                     66
6       Signature and Changes,
                                                                     68
7       Reporter's Certificate,
 8      Further Certification...................    <...........     70
 9

10                                EXHIBIT

11                                 INDEX

12
13       NO. DESCRIPTION                                      PAGE
14        1 Plat....,............... >-.... -..... -.... '... - 7
15        2   Letter to Paul Velte from Jeremy Melchor........       55
16
17
18
19
20
21
22
23
24
25

                       U. S. LEGAL SUPPORT - AUSTIN, TEXAS
                                  (800) 734-4995



                                                                          ^0
                                                                3/4/2013
     JEREMV DAVID MELCHOR




1                                  JEREMY DAVID MELCHOR,

2       having been duly sworn testifies as follows:
3                                       EXAMINATION

4       BY MR. VELTE:

5           Q.     Hi.    Is it Melchor or Melchor?
6           A.     Melchor.

7            Q.    All right.        First name Jeremy?
 8           A.    Yes,   sir.

 9           Q.    And what's your middle name?
10           A.    David.

11           Q.    What's your date of birth?

12           A.    12/23/76.

13           Q.    Now, I sent a notice to your lawyer,
14       Mr. Goldsmith, of a notice of intent to take your
15       deposition today.

16           A.    Yes,     sir.

17           Q. And that notice - did he provide you a copy?
18           A.    Yes,     sir.

19           Q.    And so you saw in the notice where I said to
20       bring some items with you?

21           A.     I did, but I don't have any of those items.
22            Q. Okay. So T had asked you for three items.          One
23       was leases and deeds related to your residence known
24        locally as 693 Pickett Lane.
25            A.    Okay.


                          U. S. LEGAL SUPPORT - AUSTIN, TEXAS
                                     (800) 734-4995



                                                                           'T
     JEREMY DAVID MELCHOR                                              3/4/2013



1           Q.    All right.     Now, who owns the land that is at 693
2       Pickett Lane?

 3          A.    My father.

 4          Q.    Okay.    Now, that would be -- I want to draw

 5      you --

 6                       MR. VELTE:   Let me get this marked.
 7                             (Exhibit No. 1 marked.)

 8          Q.    (BY MR. VELTE)      I want to show you what we've

 9      marked as Deposition Exhibit No. 1, and I would submit to

10      you that's a blow-up of the property tax plat records.

11      And ask you to take a look at that.           And do you see

12      Pickett Lane and Ivy Lane on there?

13          A.    Yes.

14          Q.    And can you identify your property where you're

15      living?

16          A.    I believe it's this 355413, I think.

17          Q.    Okay.     And that would be that little      blue square

18      that's kind of in the -        I guess you'd say below Ivy Lane

19      on that map?

20          A.    Yes, sir.

21          Q.    Okay.     Now, how big is that parcel?

22          A.    One acre.

23          Q.    It's one acre, okay.      And the larger parcel,       do

24      you know how big it is?

25          A.    I think it's     18 -   18 acres.


                         U. S. LEGAL SUPPORT - AUSTIN, TEXAS
                                    (800) 734-4995




                                                                              ^
     JEREMY DAVID MELCHOR                                                          3/4/2013

                                                                                         8


 1             Q.   Okay.

2              A.     18 point something.              I'm not exactly sure. I

3       don't own it.

 4             Q.   Now, the ~          your father owns the one acre and the

 5      other 18.          Do you know who owns it?

 6             A.     He has --     he owns it         now.

 7             Q.     Okay.     So he recently acquired that?
 8             A,     Correct.

 9             Q,     Okay.      Do you know who the previous owner was?

10             A.     I believe her name was Yolanda Rodriguez.

11             Q.     And when did your father acquire the other 18

12      acres there that surrounds -

13             A.     Don't     know.    You'd have to talk         to him.

14             Q.     You don't     know a      time    frame?

15             A.     I don't know.

16             Q.     Well,     I mean, was it         last year?

17             A.     I think so.           I don't know exactly when, though.

18      It's    not    -    I   don't   -     it's   his business,     not mine.

19             Q.     Do you know why he bought it?

20                          MR. GOLDSMITH:           Objection;     form.

21             A.     Could you restate the question?

22             Q.     (BY MR. VELTE)           Do you know why your father

23      bought the other 18 acres surrounding the acre that you're

24      living on?

25                          MR. GOLDSMITH:           Objection;     form.


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                                       (800) 734-4995
     JEREMY DAVID MELCHOR                                               3/4/2013


                                                                                13

1       side of your map is missing.

2           Q.   So it's further down Ivy Lane?

3           A.   It's at the end, yes.             They're the last house on

4       the right at the dead-end.

5           Q.   All right.         So then you don't know the neighbors
 6      that live at 355406?

 7          A.    I    don't    know.

 8          Q.    And you don't know the Titels either that live
 9      across   the    road?

10          A.    No,    sir.

11          Q.    Any other neighbors you know?

12          A.    Just the ones I gave you.

13          Q.    And you don't know the people on the other side
14      of Pickett Lane?

15          A.    No.

16          Q.    Would you agree that in a perfect world it's a

17      good idea to stay on good terms with your neighbors?

18          A.    Yes,    sir,    and I   am.

19          Q.    You are?

20          A.    With the ones that I know, yes, sir.

21          Q.    Okay.         Do you agree that it's a good idea to get
22      to know your neighbors?

23          A.    Yes,    sir.

24          0.    Is it true that -             well, let's ask about who

25      lives at your residence there at 693 Pickett Lane.                  At the

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                                                                                     -2^
     JEREMY DAVID MELCHOR                                               3/4/2013


                                                                               14
1       time of this fire in July of 2011 who was residing there
2       at 693 Picket! Lane?

3           A.    Myself, my son                    , my other son      and
 4                              my daughter, and Mandy Edwards.
 5          Q.    Now, were there other kids there?

 6          A.    Yes.

 7          Q.    Who were they?

 8          A.

 9          Q.    Any others?

10          A.    I don't remember.              I want to say                but

11      I don't remember         for sure if he was there or not.

12          Q.    Okay.        Now, let's talk about each one.       So you

13      have two boys,                 and              ?

14          A.                  and          .

15          Q.             ,    I'm sorry.        And       ?

16          A.    Correct.

17          Q.    So a daughter and two boys?

18           A.   Uh-huh.

19           Q.   What's your relationship with Mandy Edwards?
20           A.   She's my girlfriend.

21           Q.   Y'all are not married?

22           A.   No.

23           Q.   Does she still reside there?

24           A.   Yes.

25           Q.   And does she have children by previous


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                                                                                    ^
     JEREMY DAVID MELCHOR                                         3/4/2013

                                                                          15

1       relationship?
2           A.    Yes.

3           Q.    Okay.     And who would those be?
4           A.    I'm sorry, her children?
5           Q.    Yes.

 6          A.                           and
 7           Q.   And how old is             ?
 8           A.   13,    I believe.

 9           Q.   Okay.      And

10           A.   Right now nine.

11           Q.   And what is your relationship to                and
12
13           A.   They're my girlfriend's kids.
14           Q.   What about -        are all these children still
15      residing there now?
16           A.   No, sir.

17           Q.   Okay.      Where are -- where are they?
18           A.   Well,               lives with his mother now as of
19       last year and                 and        haven't lived there.
20       They live with their parent.
21           Q.   Who are their parents?
22           A.         n's is Daniel McKeever and             is Kevin
23       Smith.

24           Q.   And so each of those boys is now living with
25       their other parent?


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                                                                           ^
     JEREMY DAVID MELCHOR                                           3/4/2013

                                                                           16

1           A.     They have always, yes.

2           Q.     You said they have always lived with their other
3       parents?

4           A.     Yes.

5           Q.     So they don't reside at your place?
 6          A.     No.

7           Q.     Now, what about in July of 2011? Were they
 8      residing at your place then?

 9          A.     No, they were on visit.

10          Q.     So is it true they have never resided there, they

11      have always just come and stayed, what, for short periods?
12          A.     Correct.

13          Q.     And how frequently was that, every first, third,
14      fifth    weekend?

15          A.     No.     I don't know dates, but it's just kind of

16      sporadically.        I mean,       lives in Alabama, not here, so
17      I mean, it's kind of -          we can't get him first, third and

18      fifth weekend.        I don't have money to do that.

19      lives in Bastrop and generally comes -          just depends.

20      Three to four weeks.

21           Q.    Whenever the parents agree?

22           A.    No, it's not necessarily that.       Just whenever he

23       has time.        You know, they keep him pretty busy in school

24       and different after-school         functions and stuff so whenever

25       he has time.


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                                                                            -2/1
     JEREMY DAVID MELCHOR                                             3/4/2013

                                                                            22

1       Edwards with six children.

2           A.       Correct.

3           Q.       Now, I think you named five,

4           A.       Okay.

5           Q.       Who would the sixth child, have been?

 6          A.       I don't believe there was one.       I believe the

 7      news misreported,         like they generally do.
 8             Q.    Ail right.     Now, what is your relationship with
 9         ?        Does he call you Dad ever?

10             A.    No.

11             Q.    What does he call     you?

12             A.     Jeremy.

13             Q.     And are you, like,    his stepparent?

14             A.     No.

15             Q.     Whose job is it to discipline him?
16             A.     I assume his mother and father.

17             Q.     So you don't exercise any discipline over
18
19             A.     No.

20             Q.     What about the other child, Mandy's other boy,

21              ?

22             A.     No.

23             Q.     No.    So you let Mother do all the -       you let
24      Mandy, as mother, exercise all the discipline over those
25       two boys?


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                                      (800) 734-4995



                                                                                 "ft
     JEREMY DAVID MELCHOR                                         3/4/2013

                                                                       23
1           A.    Yesr sir.

2           Q.    Was        ever left in your care?

3           A.    Not by himself,       no.

 4          Q.    What about you and the other boys?
 5          A.    My kids?

 6          Q.    Yes.

 7          A.    Well,    of course.

 8          Q.     So there are times, then, when you're the only
 9      adult    there with those boys?

10          A.     Definitely.

11          Q.     So you had authority to supervise them?
12          A.     When?

13          Q.     Well, any time he was left in your care.
14          A.     Yeah.

15          Q.     Have you ever had to discipline him?
16          A.               ?

17          Q.     Yes.
18          A.     No.

19          Q.     You've never had to spank him?

20          A.     That's not my place.       She's my girlfriend but not
21      my wife.     It's not my place to discipline her children.
22           Q.    So your testimony is no?
23          A.     Correct.

24           Q.    You've never had to spank the boy.       Have you ever
25      had to punish him in any other way?


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                                                                             1C
     JEREMY DAVID MELCHOR                                             3/4/2013

                                                                            24

1           A.     Testimony was no.

2           Q.     Now,                        father is Daniel McKeever and
3       you say that he lives out of state?
4           A.     Correct.

5           Q.     What state does he live in?

 6          A.     Alabama.

7           Q.     And have you ever met that man?

 8          A.     One time,     yes,   sir.

 9          Q.     Okay.      And does he -      do you know what he does
10      for a living?

11          A.     I haven't got a clue.

12          Q.     Do you know what city or county he resides in in
13      Alabama?

14          A.     No,    sir.

15          Q.     Do you know his phone number?

16          A.     No, sir.

17          Q.     W.hat about           r's father, Kevin Smith?
18          A.     Are you asking me the same questions?
19           Q.    Yes.     Do you know where he resides?

20           A.    Yes, sir.

21           Q.    Where?

22           A.    Bastrop.

23           Q.    Do you know address?

24           A.    No, sir.

25           Q.    So he lives in the City of Bastrop?

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                                                                                 ^
     JEREMY DAVID MELCHOR                                                3/4/2013

                                                                              28
1            Q.    And where does she reside?

2            A.      Smithville.

3            Q.      Now, is            older fchan     ?

4            A.      I think they're the same age.          Hers is in May. I
 5      think they're the same age, a few months apart.

 6           Q.      Which one would be older?

 7           A.      Probably                Maybe.   I'm not certain.

 8           Q.      Okay.     Now, regarding the five children,     then,

 9      that would be at this residence at least on July llth of

10      2011, who normally had charge of these five children?
11           A.      While I was at work?

12           Q.      Yeah.

13           A.      Mandy.

14           Q.      What was the usual routine -        daily routine?      You

15      went to work in the mornings?

16           A.      Yes, sir.

17           Q.      Okay.     And you left her in charge of the children
18      at   home?

19           A.      Correct.

20            Q.     And is it true that the children were often left

21      unsupervised?

22            A.     No.     That's false.

23            Q.     Is it true that CPS has been called out to

24      investigate?

25            A.     That's     true.



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                                                                                   ^\
                                                                                   ^
     JEREMY DAVID MELCHOR                                         3/4/2013

                                                                      30
 1          Q.   Are you aware in the fire marshal's report where
 2      it says that Mandy Edwards sent the kids outside to eat
 3      lunch?

 4          A.   I haven't seen the report so I couldn't tell you.
 5          Q.   Okay.     I would ask you -- are you a smoker?
 6          A.   Yes.

 7          Q.   Is Mandy Edwards a smoker?

 8          A.   I guess you could say that, yeah.
 9          Q.   Is it true that one or more of your children were

10      smoking cigarettes at one point in the past?

11          A.   False.

12          Q.   So you're not aware that one of your boys offered

13      a neighbor boy a cigarette?

14          A.   No, I'm not.

15          Q.   Another neighbor of yours says that your children

16      run loose and are not supervised.

17          A.   That's 100 percent      false.

18          Q.   Now, on the day of the fire where were you?

19          A.   At work.

20          Q.   At what location?

21          A,   Cedar    Park.

22          Q.   At the Poky Jo's restaurant?
23          A.   Smokey Mo's.

24          Q.   Smokey Mo's.       I'm sorry.

25          A.   I'm sorry.       You've called it three different


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                                                                        y
                                                                             .
     JEREMY DAVID MELCHOR                                             3/4/2013

                                                                            31

1       things since we've been sitting here.         Yes, 1431 and 183.
2           Q.       Okay. And do you know who set the fire?
3           A.       No.

4           Q.       All right.   So as we sit here today, I guess a
5       year and a half later, you don't know who started the
6       fire?

7           A.       All I have is hearsay, so I don't know.

 8          Q.       Well, what is the hearsay you have?

 9          A.       What I heard was that            set the fire, thafc

10      they were going out to eat and that's -           I don't even
11      know.        He found a lighter or something is what I've gotten

12      from, I mean, everybody.         That's all I know.      I don't

13      really know what actually happened that day.             I wasn't
14      there.

15           Q.       But surely yo.u've interviewed Mandy and the

16      children about what happened, right?

17           A.       (Witness nods head.)

18           Q.       So what they're telling you is that

19       started it with a lighter?

20           A.       That's what I've heard, yes, sir.

21              Q.    And you've taken no interest in how that
22       happened? Do you know where it happened? Do you know why
23       it happened or any of that?

24              A.    I know where it happened.    I saw it after the

25       fact.


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                                                                                 .^
                                                                                 3
                   Cause No. Cl-CV-12-008224
               Oral Deposition of Mandy Edwards

                                                              Page 1
                    CAUSE NO. Cl-CV-12-008224

DON TITEL                       )      IN THE COUNTY COURT
CAROL TITEL                     )
      Plaintiffs                )
                                )
vs.                                    AT LAW NO. 2

JEREMY DAVID MELCHOR,
      Defendant                        TRAVIS COUNTY, TEXAS




A******************************


                    VIDEOTAPED ORAL DEPOSITION OF

                             MANDY EDWARDS

                             April 1, 2013
******.        **********************-***




              VIDEOTAPED ORAL DEPOSITION OF MANDY EDWARDS,

produced as a witness at the instance of the Plaintiffs, and
duly sworn, was taken in the above-styled and numbered cause on
the 1st day of April, 2013, from 12:59 P. M. to 2:25 P. M.,
before DOTTIE NORMAN, Certified Shorthand Reporter in and for
the State of Texas, reported by machine shorthand, at the
offices of The Texas Law Center, 1414 Colorado Street, Austin/

Texas, pursuant to the Texas Rules of Civil Procedure and.the
                                                  i^MssL^/^ZSM
provisions attached hereto.
                      Cause No. Cl-CV-12-008224
                 Oral Deposition of Mandy Edwards

                                                    Page 2

1                            APPEARANCES

2    FOR THE PLAINTIFFS:

3          PAUL C. VELTE, IV
           Attorney at Law
4          109 E. Hopkins St., Suite 204
           San Marcos,   Texas   78666
5

 6
     FOR THE DEFENDANT:
 7
           NAMAN HOWELL SMITH & LEE, PLLC
 8         By: JIM GOLDSMITH
           8310 N. Capital of Texas, Suite 490
 9         Austin,   Texas   78731

10
11

12
13

14
15
16
17
18
19
20
21
22
23
24
25



                                                                 .y
                                                             /
                       Cause No. Cl-CV-12-008224
                    Oral Deposition of Mandy Edwards

                                                       Page 3
1                                 INDEX

2                                                      PAGE

3    Appearances                                         2

4    MANDY EDWARDS:
5          Examination by Mr. Velte                      4

 6         Examination by Mr. Goldsmith                 69

 7   Correction    Sheet                                73
 8   Signature Page                                     74

 9   Reporter's    Certificate                          75

10

11                                 EXHIBITS

12   NUMBER        DESCRIPTION                          PAGE

13   1             Temporary Orders dated 10-8-09         6


14   2             Citation                               7


15

16

17

18

19

20
21

22
23
24
25




                                                                ^Ip
                    Cause No. Cl-CV-12-008224
                 Oral Deposition of Mandy Edwards

                                                                     Page 4
1                               MANDY EDWARDS,

2    having been first duly sworn, testified as follows:
3                                 EXAMINATION

4    BY MR. VELTE:

5          Q.   All right.    Your name is Mandy Edwards?
6          A.   Yes, sir.

1          Q.   And, Mandy, do you have a cell phone?

8          A.   I do have a cell phone.

 9         Q.   Okay.     If it goes off -- I mean, do you mind turning
10   it off -

11         A.   Oh, it's off,    yes.

12         Q.   -- so we can do -        okay.   I just didn't want to have

13   any interruptions.

14                    MR. GOLDSMITH:      Thanks for the reminder.

15         Q.    (By Mr. Velte) Have you ever had your deposition
16   taken before?

17         A.   No,   sir.

18         Q.   Do you understand what a deposition is?
19         A.   Kind of, somewhat.

20         Q.   Has anybody explained it to you?
21         A.    Just a little bit.       I'm basically just here to tell
22   my side of the story, the truth.
23         Q.    Okay.
24         A.   As much as I     know.

25         Q.    That's   why you are sworn in.



                                                                                -..?

                                                                              -y,
                    Cause No. Cl-CV-12-008224
                 Oral Deposition of Mandy Edwards

                                                                      Page 1
1         A.    So I figured if that helps.

2         Q.    All right.

3         A.    That's the last known address that I do know of, so

4

5          Q.   All right.
 6                    MR. VELTE:     Let's mark that as Exhibit 2.

 7                    {Exhibit No.    2 marked)

 8                    MR. VELTE:     Can I see Exhibit No. 2?

 9         Q.   (By Mr. Velte)      So Exhibit 2 is three pages.     Let me

10   just take a look at it.

11         A.   Uh-huh.     Okay.

12                    MR. GOLDSMITH: Maybe we can take a couple of
13   minutes just to look at both of them and then swap.
14                    MR. VELTE:     You want to switch?

15                    MR. GOLDSMITH:     Sure.

16         Q.   (By Mr. Velte) All right.         Let me ask you about
17   Exhibit No. 2 first.

18         A.   Okay.

19         Q.   It states that it's a citation of -         apparently you

20   sued Mr. McKeever regarding child support or child custody of
21

22         A.   Actually,    he sued me.     He went for a summer

23   visitation and then I was served with that.         And he didn't want

24   to return his son,   so that's what I was faced with.

25         Q.   Oh.     So you sent your son         to be with father for


                                                                               ^
                                                                               ^)L
                              Cause No. Cl-CV-12-008224
                       Oral Deposition of Mandy Edwards

                                                                          Page 8

1    the   suminer?

2            A.       Uh-huh,    in 2009.

3            Q.       And he didn't return him?

4            A.       Yeah.

5            Q.       I see.     So you had to -   you sued in Texas?
6            A.       Yes.

7            Q.       And did Mr. McKeever sue in Alabama?

 8           A.       No.     Actually, that case is still open.      And for two
 9   years I have been trying to contact his lawyer and nothing.
10           Q.       Okay.

11           A.       Sorry.     That -- that case is a little sensitive, but
12
13            Q.      Yeah, I'm sure.       I'm sorry to hear that.    I'm just
14   trying to wrap my brain around what the situation is.               The -
15                 is your son?

16            A.      Yes.

17            Q.      Okay.     And how old is he now?
18            h.      He's 9 now.

19            Q.      Okay.     And his father lives in Alabama?
20            A.      Correct.

21            Q.      And when in 2009 you sent           to be with him and he
22   didn't return,           you initiated this action here in Williamson
23   County.       Did you get -- his name is Daniel?
24            A.      Daniel McKeever.

25            Q.      Yeah.      Did Daniel respond to the lawsuit?     Did you


                                                                                    ^
                        Cause No. C1-CV-12-OOB224
                  Oral Deposition of Mandy Edwards

                                                                          Page 16
1           Q.   At the time, though, that the fire began, you had
2    several children under your supervision?

3           A.   Correct.

4           Q.   And this is at 693 Pickett Lane?

5           A.   Yes.

6           Q.   Mi right.

1           A.   Yes.

8           Q.   And was there any other adult present?
 9          A.   Yes.    Actually, the reason there was more children
10   was because we had hired a construction           worker.   He was

11   remodeling our house at the time.         And his son was similar in
12   age to all the -- our children.         He asked if he could bring
13   him.   I said, "That would be fine.           They can play, you know."
14   So it was Shane Painter.         He was the construction worker that

15   was remodeling our house, and also a Jerod Duncan which is
16   Jeremy's half-brother from Katy, Texas.            He was there as well.
17   He was visiting, looking for employment up here actually.
18          Q.   Okay.      Okay.    Now, who else was present besides
19   Shane, Jerod and you?          It was just the children?
20          A.   Children.      His son.     Gosh.    What is his name?

21          Q.   Shane's son?

22          A.   Shane's son.         I'm sorry.     I can't remember his name.
23          Q.   Okay.

24          A.   And then my son,

25          Q.   Okay.


                                                                                    ' ^, 7
                                                                                    (
                       Cause No. Cl-CV-12-008224
                    Oral Deposition of Mandy Edwards

                                                                                        Page 17
1           A.    And

2           Q.    Okay.
3           A.    And then Jeremy's three children,
4                         and

 5          Q.    I'IT. sorry.           I missed -- it was                      ,        and
 6   who?

 7          A.                  ,                  .   Did you get           ?
 8          Q.    And               n.    Oh, is it                  you said?
 9          A.              .

10          Q.    Okay.                       --

11          A.    There is a                           and a          .

12          Q.    And a                   .        That's what I was missing.        Okay.
13   All right.    So we had five children?
14          A.    Correct.

15          Q.    Okay.         What is your profession?
16          A.    As of right now I am a -                       my title has changed. I

17   guess you can call me a kennel technician.                           I just got promoted
18   to -   I'm kind of doing everyone's job.                        Office manager. I
19   don't know.     I just say kennel technician.
20          Q.     What is a kennel technician?

21          A.     It's a -          it's at a -               it's in -- it's called

22   Southern Star Ranch.                It's a boarding and kennel facility,

23   canine training center.

24          Q.     Okay.        And that's where you work now?
25          A.     Yes.



                                                                                                  ^
                        Cause No. Cl-CV-12-008224
                     Oral Deposition of Handy Edwards

                                                                          Page 18
1            Q.     And what about for the past few years?

2            A.     Self-employment.     I have just -   I have cleaned
 3   houses.      The main reason I did that --    I started   that     in 2000

 4   was to revolve my life around my children.          So I cleaned
 5   houses.

 6           Q.     Okay.
 7           A.     In the mix in between,    the 13 years,    I have gone to

 8   college.      I've,    you know, done everything else,    but my

 9   priority, main source was cleaning houses.
10           Q.     And what were you doing in July 2011 for work?

11           A.     Actually, at that time I was not employed.           I was

12   cleaning Jeremy's father's house every two weeks and that was
13   my only -- my, I guess, job you could say was staying at home.
14   I was the house -         not housewife because   I'm not his wife.         You

15   know,   I stayed home and took care of the house and the kids and

16   everything in between.

17           Q.     Okay.     So when did you -- or how did you meet Jeremy

18   Melchor?

19           A.     Smokey Mo's Bar-B-Q -

20           Q.     Okay.

21           A.     -- where he was working at the time.        Well, still
22   is,   but --

23           Q.     And when did you move in with him?

24           A.     It   was October 2010.

25           Q.     Okay.     And that was at 693 Pickett Lane?




                                                                                       ^
                          Cause No. Cl-CV-12-008224
                       Oral Deposition of Mandy Edwards

                                                                          Page 19
 1           A.      Yes.

2             Q.     Okay.      What is your relationship with Jeremy Melchor
3    now?

 4            A.     We're still boyfriend and girlfriend.
 5            Q.     All right.      So you were pretty much at that point in

 6   time a stay-at-home moro or did you do these side jobs,            too?
 7            A.      Pretty much stay-at-home mom.         I was only cleaning
 8   for his father until I figured out what I was going to do with
 9   my career.        It was always my goal to get in the veterinarian

10   field.        And then in November 2012 -      yes, 2012, that's when I
11   found this ad on Craigslist for Southern Star Ranch.
12            Q.      Uh-huh.

13            A.      And that's my "      my new career.

14            Q.      Okay.     The work you did for Morris Melchor, Jerem^'s
15   father -

16            A.      Yes.

17            Q.      What did that entail?

18            A.      House cleaning.      That was a detailed house cleaning
                                       »




19   every two weeks.

20            Q.      Just one house or --

21            A.      Yeah, just his --

22            Q.      -- several?

23            A.      No, just his house.
24            Q.      Okay.     Can you describe the place at 693 Pickefct
25   Lane?     What kind of place is it?




                                                                                    ^
                         Cause No. Cl-CV-12-008224
                      Oral Deposition of Mandy Edwards

                                                                     Page 34

1    with the drought, et cetera, et cetera.          We just assumed it was

2    another brush fire and it jumped through the 'property.         You

3    know, and we tried to backtrack where we thought they had their

 4   lunch, is what we were told.         There was never a lighter found.

5    There was never nothing.        So ~- and all we heard was "We seen a

 6   fire and it went boom and boom, " and that's all we got out of
 7   it.    And then --

 8            Q.    Okay.    So do you recollect       and         telling

 9   "     Daniel Berger, I would subinit, is the deputy fire marshal's

10   name.     Do you recall them telling him that they had used a
11   lighter to start the fire?

12            A.     I recall       -- he finally -   I can't remember.     It

13   was in the evening.         It was dark.   That whole entire day, I

14   mean they ~- everyone -- the fire marshals,         the officers were

15   just interro -         just pounding on him like, you know, like "You

16   started it.      You started it. "    He finally just gave in and

17   said, "Okay, I started it. "         He said, "The only reason I did

18   because I wanted to have a campfire for our lunch. "         I packed
19   them a lunch to go outside,        which was a normal thing they did.

20   And he said,      "I learned in Boy Scouts how to start a -- you

21   know, a small fire and I thought I could put it out. "         And that
22   was it.       And then we never -- after    that never even seen the

23   fire report.

24                       And, again, the lighter was never found.     So I
25   don't know if he -             is the kind that will take blame for




                                                                                 ^
                          Cause No. Cl-CV-12-008224
                   Oral Deposition of Mandy Edwards

                                                                   Page 37
1            A.   Yeah.    That's when hewas just like "I did" -- you

2    know, "I started the fire. "     And I'm like "Well, we need to go
3    talk to the fire marshal and discuss this."

4            Q.   So you are the one then that when you got        alone
5    you were able to get him to confess the truth to you?
 6           A.   Not necessarily.

7            Q.   Well, then why did you -     I don't understand. I
 8   roean, you're saying ~-
 9           A.   Because at the time we were all upset and we were

10   talking about the possibilities of what can happen with a fire
11   if they were to start it.       We didn't know at the time.   Their
12   story was very consistent as far as they just went to have a
13   lunch, et cetera, et cetera.       And then he literally was just

14   like "Okay, Mom, " you know.      He's like "I started the fire."
15                    It totally threw me off.     I said, "Well, let's
16   go discuss this with the fire marshal and figure out what's
17   going on.    And if you did, " I said, "of course we need to tell
18   the truth and we need to acknowledge that."

19           Q.   Uh-huh.

20           A.   But just how all of a sudden, it's still a mystery
21   to me because I don't understand -- I don't know if he just got

22   to the point where he's like "I'm tired of hearing this.        Let
23   me just say it so I can get it over with. "      Maybe make things
24   better is what I'm thinking.       He was seven years old at the
25   time.    He doesn't have the mental capability of, first of all,



                                                                             ^
                             Cause No. Cl-CV-12-008224
                          Oral Deposition of Mandy Edwards

                                                                         Page 38
 1     having the intention of setting a fire purposefully.           I think
 2     that he was just -- everyone -         I mean, I can't even explain

 3     how many people were there just on his butt, you know.

 4            Q.     How many people were there?

 5            A.     The fire marshal, all the constables, the sheriff,

 6     just everyone in general from the whole entire day.           Like I

 7     say, that -

 8            Q.     What about those other two men that you said, Jerod

 9     and the other gentleman?

10            A.     Shane?

11            Q.     The carpenter guy.

12            A.     Uh-huh.

13            Q.     Was he there, too?

14            A.     Yes.     Well, they left.    I don't recall exactly what

15     time they left.        I roean, they stuck around a little while. I

16     don't recall.        Well,   Jerod was staying actually   for a week.

1. 7   Shane -      I don't remember exactly what time he left.        But after

18     he gathered his emotions and everything calmed down, then he

19     left   for the evening.

20            Q.     Okay.     That was after the fire had been -
21            A.      Yeah, after they -
22             Q.     --   called   in?

23            A.      -    finally got it out and -

24             Q.     Okay.    Now, did those two men help you get out of
25     there with all       the kids?
                       Cause No. Cl-CV-12-008224
                    Oral Deposition of Mandy Edwards

                                                                   Page 39

1            A.   Well, I was cooking -    I'm trying to backtrack. I
2    was cooking lunch for the other children.      Shane, the painter
3    --    he came running in the house and just said, "There's a
4    fire.    You need to get everyone out. "   That's all I heard.      So
5    I got all the kids out, gathered them in the truck.        And then
6          is like "My turtle. "   So then we had to go back and gather
7    all the animals and we took off.      And, like I say, it happened
 8   just so fast.

 9           Q.   Uh-huh.

10           A.   And all I knew was to get the kids out of there.
11   All I seen was black sinoke in the air.      I just knew get out.

12   And Shane stayed.      And it scared me to death.    I kind of waited
13   for him.     I was like "You can't stay here. "     I didn't know

14   which way -     I, of course, didn't know what was going on.
15   Calling Jeremy.     He was at work.   I said, "Can you -     you need
16   to come home.     There's a fire."

17                     I proceeded I believe to call 911.      And after
18   that, like I say, it was very -       everything happened so fast
19   that day.     My goal was to get out of there, but then I'm
20   thinking in my mind Shane is still there.         It's like "He can't,
21   you know, stay there, " so I just -
22           Q.    So Shane was the first one to see this fire?
23           A.    Froro my knowledge, yes, because he came in and told
24   me.     I was cooking lunch, like I said, for the other children.
25   And he just came running in the house.       "There is a fire.      Get
DONNIE LEE TITEL                                                   3/4/2013



                      CAUSE NO. C-l-CV-12-008224


   DON TITEL fi CAROL TITEL,         ) IN THE COUNTY COURT
            Plaintiffs, )
                                 )
   VS.                           ) AT LAW NO. 2
                                 )
   JEREMY DAVID MELCHOR, )
           Defendant.   ) TRAVIS COUNTY, TEXAS

   **************



                          ORAL DEPOSITION OF

                           DONNIE LEE TI TEL

                            MARCH 4, 2013

   ****************



         ORAL DEPOSITION OF DONNIE LEE TITEL, produced as a

   witness at the instance of the Defendant,        and duly sworn,

   was taken in the above-styled and numbered cause on the

   4th of March, 2013 from 9:20 a. m. to 10:39 a. m., before
   Amber Kirton, CSR, in and for the State of Texas, reported
   by machine shorthand, at the law offices of Naman, Howell,
   Smith & Lee, PLLC, 8310 Capital of Texas Highway, Suite
   490, Austin, Texas, pursuant to the Texas Rules of Civil
   Procedure and the provisions attached hereto.




                                                  ^'^'^T
                                                    »t-. i--' .'
                                                     .




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     DONNIE LEE TITEL                                                 3/4/2013



 1                                     N D EX

2

 3      Appearances

 4      DONNIE LEE TI TEL

 5           Examination by Mr. Velte                                          4


 6      Signature and Changes                                                  51

 7      Reporter's    Certificate                                              53

 8      Further Certification                                                  55

 9

10                                  EXHIBIT

11                                    INDEX

12
13      NO. DESCRIPTION                                            PAGE

14       A   MapQuest 105 Ivy,                                            20

15       B   MapQuest 105 Ivy,                                            20

16       C   MapQuesfc 693 Pickett     Lane                               23

17       D   MapQuest 693 Pickett      Lane                               23

18       E   Titel Damages Summary                                        30

19
20
21
22
23
24
25

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     DONNIE LEE TITEL                                                3/4/2013




 1                                DONNIE LEE TITEL,

 2      having been duly sworn testifies as follows;

 3                                   EXAMINATION

 4      BY MR. GOLDSMITH;

 5          Q.     Mr. Titel, please state your full legal name for
 6      the court reporter.

 7          A.     Donnie   Lee Titel.

 8          Q.     Mr. Titel,    my name is Jim Goldsmith and I'ro an

 9      attorney    that's been retained by Jeremy David Melchor in a

10      lawsuit that you filed against him as a result of an

11      incident    on July llth,    2011.   Do you understand who I am

12      and who I represent?

13          A.     Yes.

14          Q.     And you understand     that your purpose here today

15      is to offer sworn deposition testimony so that we can find

16      out what you might say in a trial          if we were go to a trial

17      of this matter.        Does that make sense?

18          A.     Yes.

19          Q.     One of the things that we need to take care of on

20      the outset    is some ground rules on how, we're going to

21      speak to each other.        And the reason we do that is because

22      the court reporter is typing down everything that I say

23      and everything that you say.         And so if we can get some

24      ground rules on how we speak to each other it will make

25      her job a whole lot easier and we'll have a much clearer


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                                                                                b\
     DONNIE LEE TITEL                                                         3/4/2013

                                                                                    7

 1      oath that you would take in a court of law in front of a
2       jury and a judge.           Do you understand that?
 3             A.   Understood.

 4             Q.   So your obligation here as in court would be to
 5      tell    the whole truth to the best of your knowledge.                Can

 6      we agree on that?

 7             A.   Yes.

 8             Q.   And I want to be clear also, I'm not trying to
 9      hide the ball, but if for some reason you were trying to

10      say X in answer to a question today and then in court

11      later after you've sworn the same oath you were to answer

12      Y, I'd be entitled to show the jury the transcript of
13      today's testimony and say, you know, you testified two
14      different ways under oath.            And the reason I do that is to

15      imply that you might be being untruthful.                 Is that fair?

16             A.   That's    understood.

17             Q,   Understood.        May not be fair,   but I want to be

18      clear on why we might do that.               I don't want to hide the

19      ball for you.         All right.     Let's start with just a little

20      bit of background information for you.                 Your date of

21      birth?

22             A.   May the 26, 1947.

23             Q.   And for identification        purposes the last four

24      numbers of your social security number?

25             A.   3465.


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                                                                                         ^
     DONNTE LEE TITEL                                                    3/4/2013

                                                                                39
1       chicken coop -      okay.   The chicken coop, maybe that was a
2       later deal, but that was a loss and I didn't have to fix

3       the coop in the first month.           But water and some things.

4       I actually -       I made some purchases right away, which
5       then -- see, and right now the way this list stands you

 6      said I've made modifications       to,    that's   true because this

 7      is things not covered by the i. nsurance now is the way it
 8      finally    kind of broke out.

 9            Q.   So these are things -        I want to make clear.

10      This does not include the things that the            insurance

11      company paid for?

12            A.   Yeah.    This is just   -    that's correct.    This is

13      only the things they didn't pay for.           But that was all

14      unclear back then.       Because your question was about this

15      list.      So I'TO trying to remember the way this came to be.

16      But it was handwritten, it was a Big Chief Tablet.               It

17      evolved and there was yeses and nos, subtractions, adds

18      and drops.      And then this whole subrogation thing came in,

19      which I didn't understand.         It was at some point where I

20      said I need some help here and that's when I contacted Mr.

21      Velte and said I'm lost here, I don't know what's going

22      on,   I need some help.

23            Q.    Let's talk a little    bit about the different       types

24      of property that were at your Ivy location and what

25      damages they sustained.         Let's start with buildings.           You


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                                                                                     ^
                                               N-t
                                  NAMANHOWELL
                                        SMTTH&LEE'1"
                                          AHOKNIYS AT IAW                               8310NCt»atElo(TBMiHwy
                                                                                        Suit* 00
                                                                                        Auitin. Texa»78731
                                                                                        IS1Z1479.83CO
                                                                                        ftX|5ia«74-iaB1

September27, 2013                                                                       Office* in:
                                                                                        . Autlin
ViaE-PUing                                                                              a FortWorth
                                                                                        a Sin Antonio
                                                                                        .   Waco
Ms. DanaDeBeauvoir
Travis CountyCourthouse                                                                  www. ftein»nh»w»ll s'vi
1000 Guadalupe, Room 21 1
Austin, Texas 78701

                    RE:   Cause No. C. l-CV-12-008224; Don Titel and Carol
                          Titel vs. Jeremy David Melchor; In Ac County
                          Court at LawNo. 2 ofTravis County, Texas

                          Finn FUeNo. 34725. 500

DearMs. DeBeauvoir:

         Please find enclosed a Motion for Suacwry Judgmcmt filed on behalfof Defendants
Jeremy David Melchor, Morris 0. Melchor and Lisa Melchor. A Notice of Hearing is
incorporated witfain the Motion, and reflects Ifaat this Motion is set for hearing on Tuesday,
October29, 2013at 9tW S.B*.

         Pursuant to the Texas Rules ofCivil Procedure, a copy ofthe Motion hasbeen forwanJed
to all partiesandcounsel ofrecord onthis date.

         Thankyou for your assistancein thismatter.

                                              Verytruly yours,

                                              NAM^ HOWELL,SMITH& LEE,PLLC




JWO/jwg
Enclosure



(02569857. DOCX/)



                                                                                                          <j\
                                               [tUblilhcd 191?
Ms. DanaDeBeauvoir
Travis County Courthouse
September27, 2013
Page 2




ec:       (w/eaclosure)

Paul C. Velte, FV          SEWTVIAFACSIMILETO:(512)476-9504
 109E. HopkinsSt
Suite 204
SanMareos,Texas78666

MandyEdwards               SENTVIACERTmEDMAIL,RETURNRECBIPTREQUESTED
693 Pickett Lane
Leaoder, TX 78641

Clients                    SENTVIA E-MAIL




(025<9tS7.DOCX/)



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