                                                                                           ACCEPTED
                                                                                      13-15-00127-CV
                                                                      THIRTEENTH COURT OF APPEALS
                                                                             CORPUS CHRISTI, TEXAS
                                                                                9/16/2015 10:59:39 PM
                                                                                     Dorian E. Ramirez
                                                                                                CLERK


                          No. 13-15-00127-CV
                                                           RECEIVED IN
                                                                  --
            IN THE COURT OF APPEALS  FOR
                                     13th COURT        THE
                                                        -
                                  CORPUS CHRISTI/EDINBURG,- ----- OF APPEALS
                                                                             TEXAS
                                                    ---
              THIRTEENTH JUDICIAL DISTRICT - - ---- ss ------
                                     9/16/2015
                                         -
                                        - ID                 10:59:39
                                                              - -       PM
                                    ---- VO ------
                                                     -
           CORPUS CHRISTI & EDINBURG,    DORIAN
                                       ----
                                             --TEXAS
                                                -- -           E.
                                                           Clerk
                                                                    RAMIREZ




                TOM TUCKER, APPELLANT FILED IN
                                    13th COURT OF APPEALS
                         V.      CORPUS CHRISTI/EDINBURG, TEXAS
       CARL BEDGOOD & LAURA BEDGOOD9/16/2015 10:59:39 PM
                                      , APPELLEES
                                                        DORIAN E. RAMIREZ
                                                             Clerk



         On Appeal from the County Court at Law No. 1
                  of Victoria County, Texas

                           APPELLEES’ BRIEF



Carl Bedgood and Laura Bedgood, Appellees

Rachel F. Klotzman
State Bar No. 24049710
Klotzman Law Firm, PLLC
603 E. Mesquite Lane
Victoria, TX 77901
Tel.: 361 485-9312
Fax: 361 237-3591
Attorney for Carl Bedgood and Laura Bedgood



              ORAL ARGUMENT IS NOT REQUESTED
                    IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final judgment, as
well as the names and addresses of all trial and appellate counsel.


 PARTIES                                        COUNSEL


 Plaintiff:
 Tom Tucker                                     Hon. Robert P. Houston
                                                30 Meadow View
                                                Victoria, TX 77904

 Defendants:
 Carl Bedgood                                   Hon. Amanda B. Pierce
                                                603 E. Mesquite Ln.
                                                Victoria, TX 77901

                                                Hon. Rachel F. Klotzman
                                                603 E. Mesquite Ln.
                                                Victoria, TX 77901

 Laura Bedgood                                  Hon. Amanda B. Pierce
                                                603 E. Mesquite Ln.
                                                Victoria, TX 77901

                                                Hon. Rachel F. Klotzman
                                                603 E. Mesquite Ln.
                                                Victoria, TX 77901




                                           ii
                                            TABLE OF CONTENTS

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

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

STATEMENT OF THE CASE ..................................................................................... 1

ISSUES PRESENTED .................................................................................................. 2

STATEMENT OF THE FACTS ................................................................................... 3

SUMMARY OF THE ARGUMENT ........................................................................... 5

ARGUMENT AND AUTHORITIES ........................................................................... 7

         I. Standard of Review ......................................................................................... 7

              A. No Evidence Motion for Summary Judgment .......................................... 7

              B. Traditional Motion for Summary Judgment on Affirmative Defenses .... 7

         II. No Evidence Summary Judgment Proper ...................................................... 8

              A. Breach of Contract................................................................................... 10

              B. Common Law Fraud................................................................................ 13

         III. Traditional Summary Judgment Proper ...................................................... 14

              A. Statute of Frauds ...................................................................................... 15

              B. Statute of Limitations .............................................................................. 18

              C. Release ..................................................................................................... 22

PRAYER ...................................................................................................................... 25

CERTIFICATE OF SERVICE.................................................................................... 26


                                                               iii
CERTIFICATE OF COMPLIANCE .......................................................................... 27

APPENDIX ................................................................................................................. A1

              A. Trial Court Judgment ............................................................................. A2

              B. Earnest Money Contract ......................................................................... A3




                                                             iv
                                          INDEX OF AUTHORITIES

Supreme Court of Texas
Nat'l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419 (Tex. 2015) ............. 17, 18
Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) ..................................... 7
Dynegy, Inc. v. Yates, 422 S.W.3d 638 (Tex. 2013) ................................................... 15
B.P. Am. Prod. Co. v. Marshall, 342 S.W.3d 59 (Tex. 2011) .................................... 20
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) ....................................... 7
In re First Merit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) .......................................... 13
Murphy v. Campbell, 964 S.W.2d 265 (Tex. 1997) .................................................... 19
Computer Assocs. Int'l v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996) ....................... 20,22
Dresser Indus. v. Page Petroleum, 853 S.W.2d 505 (Tex. 1993) ......................... 22,23
Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) ........................... 23
Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) ........................ 18,19
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) ............................................................. 23
Cohen v. McCutchin, 565 S.W.2d 230 (Tex. 1978) .................................................... 15
Chevalier v. Lane’s, Inc., 147 Tex. 106 (1948)........................................................... 18
Hooks v. Bridgewater, 111 Tex. 122 (1921) ............................................................... 17
Texas Court of Appeals
Garza v. Robinson, No. 13-11-00015-CV, 2013 WL 3326465 (Tex. App.—Corpus
Christi June 27, 2013, no pet.)(mem. op.) ............................................................... 10
H.S.M. Acquisitions v. West, 917 S.W.2d 872 (Tex. App.—Corpus Christi 1996, no
writ) ......................................................................................................................... 7,8
Moczygemba v. Moczygemba, 2015 Tex. App. LEXIS 1536 (Tex. App. San Antonio
Feb. 18, 2015, pet. filed) .............................................................................................. 20
Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012 WL 335858 (Tex.
App.—Fort Worth Feb. 2, 2012, pet. denied)(mem. op.) ............................................. 9


                                                                v
Baleares Link Express, S.L. v. GE Engine Servs.–Dallas, LP, 335 S.W.3d 833 (Tex.
App.—Dallas 2011, no pet.) .................................................................................. 20, 21
Dobson v. Metro Label Corp., 786 S.W.2d 63 (Tex.App.—Dallas 1990, no writ) ... 15
Texas Rules of Civil Procedure
Tex. R. Civ. P. 166a(i) ................................................................................................... 8
Texas Business and Commerce Code
Tex. Bus. & Com. Code Ann. § 26.01 ............................................................ 11, 12, 15
Texas Civil Practice and Remedies Code
Tex. Civ. Prac. & Rem. Code Ann. § 16.004 .............................................................. 18
Tex. Civ. Prac. & Rem. Code Ann. § 16.051(a)(3)..................................................... 18




                                                             vi
To the Honorable Thirteenth Court of Appeals:

                          STATEMENT OF THE CASE

      This was an action for damages for breach of contract, breach of fiduciary

duty, common law fraud, statutory fraud, unjust enrichment and civil conspiracy

brought by Tom Tucker (hereinafter “Tucker”), appellant, against Carl Bedgood and

Laura Bedgood (hereinafter “the Bedgoods”), appellees, in a Texas county court at

law (I Suppl. at 421). The Bedgoods filed a traditional and no evidence motion for

summary judgment (I Suppl. at 252) and the trial court granted summary judgment

in their favor on February 23, 2015 (I Suppl. at 448). The trial court denied Tucker’s

motion for reconsideration on March 12, 2015 (I Suppl. at 453), and Tucker timely

perfected his appeal on March 23, 2015 (I Suppl. at 454). This appeal ensued.




                                          1
                               ISSUES PRESENTED

Issue 1
Did the trial court err in granting the Bedgoods’ no evidence summary judgment
when Tucker did not address and present summary judgment evidence in connection
with the no evidence grounds of statutory fraud, civil conspiracy & breach of
fiduciary duty and the evidence produced at the trial court level on the breach of
contract, common-law fraud and unjust enrichment grounds did not raise a genuine
issue of material fact or the court?

Issue 2
Did the trial court err in granting the Bedgoods’ traditional summary judgment
motion as to their affirmative defenses of statute of frauds, statute of limitations and
release when the movants proved all elements of these affirmative defenses as a
matter of law and Tucker did not present controverting summary judgment evidence
raising a fact issue?




                            STATEMENT OF FACTS

      The Bedgoods accept Tucker’s statement of facts except where indicated

below, with the caveat that the vast majority of the facts from Tucker’s Brief

originate from the two affidavits of Tom Tucker attached to Plaintiff’s

Supplementary Response to Defendant’s Traditional and No Evidence Motion for

Summary Judgment and Plaintiff’s Amended Response to Defendant’s Traditional

Motion for Summary Judgment (hereinafter “Responses”). (I Suppl. at 183,426).

The first affidavit referenced by Tucker is from the Clerk’s Record pages 197-207

(I Suppl. at 340-50) and the second affidavit spans pages 294-301 (I Suppl. at 439-

446). Tucker would no doubt testify, as is sworn to in the aforementioned affidavits


                                           2
and enumerated to this Court through his statement of facts, that the Bedgoods and

Tucker had an agreement regarding the land the subject of this suit and that the

Bedgoods breached this agreement. (I Suppl. at 340). Specifically, Tucker would

testify as he states in his Responses and Brief that “Bedgood agreed to reduce the

size of Lots 10 and 11 by 5 feet each and knowingly failed to do so. He accepted

consideration in the amount of $25,000 for the agreement to reduce for nothing in

return on his part. He acted as the attorney in the transaction and was Tucker’s joint

venture, and thus had a fiduciary duty to Tucker, which he breached.” (Appellee’s

Brief 6)(I Suppl. at 3). The only evidence in the record of a written agreement

supporting Tucker’s claims, and the only written contract referenced by Tucker in

his Responses, is the earnest money contract between the Bedgoods as sellers and

J.P. Bryan (hereinafter “buyer”). (I Supp. At 296-311). Said agreement and

addendum state that “[l]ot A-9 will be enlarged to 70 feet by decreasing Lots 10 and

11 by five feet each” (I. Suppl. at 299) and that the Bedgoods “shall convey to the

buyer. . . Tract No. A-9 plus adjacent 10 feet out of Tract A-10[.]” (I. Suppl. at 310).

The Bedgoods object to the following statements that are not supported by reference

to the record:


      This case involves a real estate transaction in 2006 in which
      Appellee Carl Bedgood and Appellant Tom Tucker agreed to
      reduce the size of two lots and received consideration for that
      agreement. Years later Tucker discovered that Bedgood had never
      effectuated such reduction. (Appellant’s Br. 1).
                                           3
Two separate and distinct transactions took place between Tucker
and the Bedgoods in this case, one in 2005 and one in 2006. Only
the 2006 transaction is the subject of Appellant’s claims. (Id.).
Approximately one year later, in May 2006, Bedgood and Tucker
entered into a second agreement involving only three of these lots
(“the Bryan transaction.”) (Id. at 2).

Bedgood received the other $25,000 paid by Bryan for the
additional 10 feet. (Id. at 3).

Bedgood acted as the attorney for himself and Tucker as the seller
and prepared all documents necessary to effectuate the sale of the
lot to Bryan. (Id. at 4).

Two years later, in 2008, Tucker and Bedgood became embroiled
in disputes completely unrelated to the 2006 transaction with
Bryan. These 2008 disputes related solely to the 2005 agreement
between them and their joint ownership of property acquired under
that agreement. (Id.).

At the time of that release, Tucker was wholly unaware that
Bedgood had not changed title to the lots to reflect the reduced
footage. (Id.).

The MLS information reflected that Lot 11 was 75 feet wide, rather
than the 70 feet as agreed by Bedgood. (Id. at 5).

When confronted with this, Bedgood denied having made the
agreement. (Id.).




                                  4
                       SUMMARY OF THE ARGUMENT

      This suit arises from an alleged oral agreement incident to the sale of land that

resulted in the Bedgoods conveying tract A-9 and Tucker conveying 10 feet out of

Tract A-10 to a buyer. The Bedgoods moved for traditional summary judgment on

their affirmative defenses of statute of limitations, statute of frauds and release and

also on their counter claim for breach of contract (I Suppl. at 257-268). They also

moved for a no evidence summary judgment on Tucker’s causes of action for breach

of contract, statutory fraud, common-law fraud, unjust enrichment, civil conspiracy

and breach of fiduciary duty (I Suppl. at 268-273).

      Tucker addressed all of the traditional summary judgment grounds in his

Responses but failed to address and present summary judgment evidence in

connection with the no evidence grounds of statutory fraud, civil conspiracy &

breach of fiduciary duty (I Suppl. at 433-437). In Tucker’s Appellate Brief he failed

to address the Bedgoods’ counter-claim for breach of contract as well as the no

evidence grounds of statutory fraud, unjust enrichment and civil conspiracy.

(Appelant’s Br. at 10-13). As Tucker does not challenge the counter-claim and the

statutory fraud, unjust enrichment and civil conspiracy no evidence grounds in his

Appellate Brief and as he failed to challenge the breach of fiduciary duty ground in

his Responses to the trial court these matters are not preserved and are not before

this Court. As the trial court granted a general Summary Judgment in favor of the


                                          5
Bedgoods it follows then that summary judgment could have been granted on the

basis of any of the above unpreserved grounds.

      What has been preserved for appeal are the three traditional summary

judgment affirmative defenses and the no evidence grounds of breach of contract

and common-law fraud. The Bedgoods assert that on the no evidence summary

judgment grounds before the Court, Tucker failed to produce summary judgment

evidence raising a genuine issue of material fact as to each of the challenged

elements of these causes of action. Furthermore, all elements of each of the

traditional summary judgment affirmative defenses were proved at the trial court and

Tucker failed to present controverting summary judgment evidence raising a fact

issue. As such, the Bedgoods request that this Court uphold the Summary Judgment.




                                         6
                       ARGUMENT AND AUTHORITIES

   I.      Standard of Review
           a. No Evidence Motion for Summary Judgment

        An appellate court reviews no evidence motions for summary judgment under

the same legal sufficiency standard as directed verdicts. See Merriman v. XTO

Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). When a party moves for summary

judgment on both traditional and no-evidence grounds, the appellate court will

address the no evidence grounds first. Id. “The nonmovant has the burden to produce

summary judgment evidence raising a genuine issue of material fact as to each

challenged element of its cause of action.” Id. "A no evidence point will be sustained

when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact."

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

           b. Traditional Motion for Summary Judgment on Affirmative
              Defenses

        An appellate court reviews traditional summary judgments motions de novo.

See Merriman, 407 S.W. 3d at 248. The movant must show that the nonmovant has

no cause of action, and can do so by proving all elements of an affirmative defense.

See H.S.M. Acquisitions v. West, 917 S.W.2d 872, 877 (Tex. App.—Corpus Christi


                                            7
1996, no writ). “If the movant's motion and competent summary judgment evidence

establish the movant's right to judgment as a matter of law, the non-movant must

present controverting summary judgment evidence raising a fact issue.” Id.

   II.     No-Evidence Summary Judgment Proper

         The Bedgoods sought a no-evidence summary judgment regarding Tucker’s

following causes of action: breach of contract, common law fraud, statutory fraud,

unjust enrichment, civil conspiracy and breach of fiduciary duty. (I. Suppl. at 269-

272). Tucker’s Responses would have needed to include evidence raising a genuine

issue of material fact as to each of these causes of action. Tex. R. Civ. P. 166a(i).

Specifically, it is Tucker’s burden to produce summary judgment evidence in his

Responses to the Bedgoods’ No-Evidence Motion for Summary Judgment and said

evidence must raise a genuine issue of material fact or the court must grant the

motion for summary judgment. Id.

         In Tucker’s Responses to the No Evidence Summary Judgment he states

“[t]he Bedgoods’ no evidence summary judgment is predicated on a contention that

Tucker has not produced any proof whatsoever to support one or more elements of

his alleged causes of action. It is the Bedgoods’ burden to allege with specificity the

precise element of each cause of action which they claim is not supported by any

evidence whatsoever. If this is done, then Tucker must offer some evidence in

support of each identified element of his cause of action.” (Appellant’s Br. 8). This


                                           8
is only partially correct. The movants, the Bedgoods, do have the burden of

producing a legally sufficient motion. See Dyer v. Accredited Home Lenders, Inc.,

No. 02-11-00046-CV, 2012 WL 335858, at *7 (Tex. App.—Fort Worth Feb. 2,

2012, pet. denied)(mem. op.). They do not, however, have a burden to produce

evidence. Id. Tucker did not object to the form of the Bedgoods’ motion and the

Bedgoods’ have an absolute right to claim that all elements of all of the causes of

action are not supported by evidence. This is the purpose of a no evidence motion

for summary judgment. In Dyer, the Fort Worth Court of Appeals summarizes these

burdens:

      If the nonmovant does not produce evidence sufficient to raise a fact
      issue, the trial court must grant the motion. If the movant for some
      reason attaches evidence to its motion, the trial court may not
      consider the evidence except in the limited circumstance when the
      evidence raises a fact issue. But under normal circumstances, no
      evidence is attached, and none is required for the trial court to
      grant the motion… We have no choice but to agree with the El Paso
      and Houston courts. The summary judgment rule puts the burden
      on the nonmovant to point out evidence to defeat a no-evidence
      summary judgment, not on the trial court. Although this may create
      a seemingly unfair result, we must apply the established summary
      judgment law of Texas and the plain language of the rule. And
      under our summary judgment law, in the face of a legally sufficient
      motion for no-evidence summary judgment, the nonmovant must
      file a response to defeat summary judgment regardless of whether
      the trial court has before it evidence that would defeat summary
      judgment if attached to a timely response. The nonmovant must
      bring that evidence to the attention of the trial court or lose.

Id. at 8. Furthermore, this Court has held that unchallenged grounds for summary

judgment are not before the Court for review and, it follows that if not challenged,
                                         9
those unchallenged grounds alone must uphold the summary judgment. See Garza

v. Robinson, No. 13-11-00015-CV, 2013 WL 3326465, at *8-9 (Tex. App.—Corpus

Christi June 27, 2013, no pet.)(mem. op.). Tucker only appeals and briefs this Court

on the granting of no-evidence summary judgment with regard to his claim for

breach of contract, common law fraud and breach of fiduciary duty (Appellant’s

Brief 10). The evidence, however, would need to have be provided by Tucker in his

summary judgment response. In said response he only addresses and offers evidence

regarding breach of contract and common law fraud. Tucker has waived his right to

appeal summary judgment regarding his other claims. The Bedgoods will, therefore,

only address whether Tucker produced summary judgment evidence raising a

genuine issue of material fact for breach of contract and common law fraud as these

are the only two issues included both in Tucker’s summary judgment response and

appeal.

          a. Breach of Contract

      The Bedgoods’ Motion asserted that there was no evidence of one or more of

the following elements required to prove breach of contract for the sale of real

property, on which Plaintiff has the burden of proof at trial: the existence of a valid

written contract, performance or tendered performance by the Plaintiff, breach of the

contract by the Defendant, and damages sustained as a result of the breach. In

Tucker’s Response, he generally alludes to the following evidence supporting his


                                          10
position: Plaintiff’s Amended Response to Traditional Motion for Summary

Judgment and Affidavit of Tom Tucker and attachments thereto previously filed in

this cause, the Supplementary Affidavit of Tom Tucker attached to the Supplemental

Response and the Responses to Interrogatories and Requests for Admission by Carl

Bedgood filed in this cause (I C.R. at 282). Specifically, in the section entitled

“Tucker’s Breach of Contract Claim” Tucker references an earnest money contract

attached to the Bedgoods’ Motion as well as his two affidavits (I C.R. at 289).

      Regarding the first element, the existence of a valid written contract, Tucker

references the earnest money contract to support the claim that the Bedgoods’ sale

of Lot A-11 to TDECU constituted a breach of contract between Tucker and the

Bedgoods (I C.R. at 276). The earnest money contract, however, is between the

Bedgoods and a third party purchaser and does not set forth any specifics regarding

Tucker’s compensation or any duty the Bedgoods allegedly had to Tucker regarding

deeding a portion of Lot A-11 to Tucker. Tucker asserts in his affidavit that there

were oral agreements outside of the written contract that should be enforced by the

Court. This court is barred by the rules of law, namely the statute of frauds, from

giving weight to the only evidence, namely the affidavit of Tucker, to prove that

there was an agreement outside of the written contract that the court must consider.

Pursuant to the Texas Business and Commerce Code, section 26.01, the oral

agreements made outside of the written earnest money contract are not enforceable.


                                         11
      (a) A promise or agreement described in Subsection (b) of this section is not
      enforceable unless the promise or agreement, or a memorandum of it, is
            (1) in writing; and
            (2) signed by the person to be charged with the promise or
            agreement or by someone lawfully authorized to sign for
            him.
      (b) Subsection (a) of this section applies to:
            (4) a contract for the sale of real estate

      The written earnest money contract does not in any way give rise to Tucker’s

breach of contract claim against the Bedgoods for the sale of Lot A-11 to TDECU;

said contract does not state that the Bedgoods would deed Tucker ten feet of Lot A-

11, nor does it state the amount of money Tucker will be compensated for deeding

ten feet of Lot A-10 to the third party buyer in the transaction. Tucker then states

that “[e]ven if there were no enforceable written agreement in this matter, Tucker

has alleged and offered summary judgment evidence sufficient to raise fact issues

regarding his plea of partial performance.” (I C.R. at 289). To be enforceable, a real

estate contract must satisfy the statute of frauds. To be in breach of said contract, the

terms of the contract allegedly breached must be specified in the written contract.

Tucker cannot establish a breach of the contract as the duty the Bedgoods allegedly

owed Tucker is not contained within the written earnest money contract. As the court

is barred by the statute of frauds from giving weight to the only evidence offered to

prove a vital fact, namely evidence of an oral agreement regarding terms not

contained within the written earnest money contract, a no-evidence summary

judgment is proper regarding Tucker’s claim for breach of contract.
                                           12
         b. Common Law Fraud

      The Bedgoods further asserted as part of the no-evidence motion there was no

evidence of common law fraud. Specifically, one or more of the following elements

is lacking: (1) a material representation was made; (2) the representation was false;

(3) when the representation was made, the speaker knew it was false or made it

recklessly without any knowledge of the truth and as a positive assertion; (4) the

speaker made the representation with the intent that the other party should act upon

it; (5) the party acted in reliance on the representation; and (6) the party thereby

suffered injury. See In re First Merit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001).

      In Tucker’s Response, as stated above regarding the breach of contract claim,

he generally alludes to the following evidence supporting his position: Plaintiff’s

Amended Response to Traditional Motion for Summary Judgment and Affidavit of

Tom Tucker and attachments thereto previously filed in this cause, the

Supplementary Affidavit of Tom Tucker attached to the Supplemental Response and

the Responses to Interrogatories and Requests for Admission by Carl Bedgood filed

in this cause (I C.R. at 282). Specifically, in the section entitled “Tucker’s Fraud

Claim” Tucker lists deposition testimony of Carl Bedgood and answers to written

discovery as evidence supporting a vital fact in the elements of common law fraud

(I C.R. at 289). Tucker states that Carl Bedgood’s denial of the promise to split

$50,000 with Tucker and denial of an agreement to change the dimensions of Lot A-


                                         13
11 is enough evidence to prevent summary judgment on common law fraud. Tucker

would testify that (1) a material representation was made and (2) that the

representation was false. Tucker would also say that he (5) acted in reliance on

Bedgood’s representation and (6) suffered injury. There is no evidence raised by

Tucker, however, to support element (3) and (4). Furthermore, Tucker alleges fraud

as an attempt to circumvent the statute of frauds bar on his breach of contract claim.

He cannot recover for breach of an alleged oral agreement from the earnest money

contract, nor can he try to recover under fraud for the same alleged breach of the

same alleged oral agreement.

   III.   Traditional Summary Judgment Proper

      If this Court does not uphold the summary judgment on the above no-evidence

grounds, the Bedgoods would show that they properly pled and conclusively proved

each essential element of the following affirmative defenses; statute of frauds, statute

of limitations and mutual release, and, Tucker did not, by his Response, present a

fact question on at least one element of each of these affirmative defenses.

Furthermore, Tucker does not challenge the grounds for summary judgment on

Bedgoods’ counter claim for breach of contract, therefore those are not addressed as

they are not before this Court.




                                          14
          a. The Statute of Frauds

      Chapter 26 of the Texas Business and Commerce Code, regarding the statute

of frauds, states that a contract for the sale of real estate, or an agreement which is

not to be performed within one year from the date of making the agreement, is not

enforceable unless the promise or agreement, or a memorandum of it, is (1) in

writing; and (2) signed by the person to be charged with the promise or agreement.

See Tex. Bus. & Com. Code § 26.01. The applicability of the statute of frauds to an

agreement is a question of law to be decided by the court. Dynegy, Inc. v. Yates, 422

S.W.3d 638, 642 (Tex. 2013). To satisfy the statute of frauds, there must be a written

memorandum which is complete within itself in every material detail and which

contains all of the essential elements of the agreement so that the contract can be

ascertained from the writing without resorting to oral testimony. Cohen v.

McCutchin, 565 S.W.2d 230, 232 (Tex. 1978); Dobson v. Metro Label Corp., 786

S.W.2d 63, 65 (Tex.App.—Dallas 1990, no writ). The written memorandum must,

within itself or by reference to other writings and without resort to parol evidence,

contain all the elements of a valid contract, including an identification of both the

subject matter of the contract and the parties to the contract. Cohen, 565 S.W.2d at

232; Dobson, 786 S.W.2d at 65.

      Tucker did not produce a document memorializing the alleged breached

agreement between the parties. Rather, Tucker relies on his testimony regarding oral


                                          15
agreements between the parties as a basis for his causes of action. The only written

document in this case is between a third party purchaser and the Bedgoods, wherein

the Bedgoods agreed to sell a 70’ Lot A-9 for $275,000.00 (I Suppl. At 296). As the

agreement alleged by Tucker regarding his claims is oral, Tucker then has the burden

to present evidence to raise a fact question defeating the statute of frauds.

         In his Response, Tucker alleges that “[i]n order to comply with the statute

of frauds, there only need be a writing, signed by the party sought to be charged,

evidencing an agreement to do something.” (I Suppl. At 430). This is not a correct

application of the rule. The writing must contain all of the essential elements of the

agreement, including identification of the subject matter of the contract and the

parties to the contract. The earnest money contract relied on by Tucker to overcome

the statute of frauds does not speak to the agreement allegedly breached by the

Bedgoods. Tucker does not raise a fact question by merely stating that there is a

written document signed by Bedgood evidencing an agreement to do something. The

breach of contract alleged by Tucker is the sale by the Bedgoods of Lot A-11 to

TDECU. Tucker believes he and Bedgood had an agreement wherein Bedgood

would deed him five feet of Lot A-11, which cannot be done as the lot was sold.

Nothing in the written earnest money contract speaks to this agreement.

      Tucker also raises the “doctrine of part performance” as a fact issue defeating

summary judgment as a matter of law on the statute of frauds (I Suppl. At 286). The


                                          16
Texas Supreme Court has stated that for an oral agreement, or a parol sale of land,

to be removed from the Statute of Frauds three things are necessary: 1) payment of

the consideration, 2) possession by the vendee and 3) the making by the vendee of

valuable and permanent improvements upon the land with the consent of the vendor;

or, without such improvements, the presence of such facts as would make the

transaction a fraud upon the purchaser if it were not enforced. Hooks v. Bridgewater,

111 Tex. 122, 126-27 (1921). Tucker did not take possession of the 5 feet of Lot 11

nor did he make valuable improvements to it. (I Suppl. At 409). Tucker alleges the

presence of the fact that he conveyed the ten feet of Lot A-10 to the third party seller

in reliance on an oral agreement that the Bedgoods would convey to Tucker five feet

of Lot A-11 would make the transaction a fraud upon the purchaser if it were not

enforced and that this raises a fact issue (I Suppl. At 431). Tucker admits that he did

not read or look at the documents he received at the closing in 2006 and that he

thought the deed from the Bedgoods for five feet had been done or would be done

at some later date (I Suppl. at 341, 400). A party to a written contract cannot

justifiably rely on oral misrepresentations regarding the contract's unambiguous

terms, especially when the party had a reasonable opportunity to review the written

agreement but failed to exercise ordinary care to do so. Nat'l Prop. Holdings, L.P. v.

Westergren, 453 S.W.3d 419, 424-25 (Tex. 2015). Furthermore, “[t]here must be

performance ‘unequivocally referable’ to the agreement” to satisfy the exception to


                                          17
the statute of frauds. Chevalier v. Lane’s, Inc., 147 Tex. 106, 113 (1948). The ‘partial

performance’ alleged by Tucker is the fact that he deeded ten feet of Lot A-10 to the

third party buyer at the closing. For this, he was paid a portion of the sale price at

closing (I Suppl. at 341). He alleges that as part of this agreement Bedgood was

bound to deed him five feet of Lot A-11. This, however, was at most an “oral

misrepresentation” of the sale’s “unambiguous terms” and Tucker had opportunity

to review all the documentation for the sale and raise any objections at that time but

he failed to do so.

          b. The Statute of Limitations

      The Statute of Limitations is four years after the day the cause of action

accrues for breach of a contract for the conveyance of real property. Tex. Civ. Prac.

& Rem. Code Ann. § 16.051(a)(3). Fraud, Civil Conspiracy, Unjust Enrichment,

and Breach of fiduciary duty claims generally accrue, and the four year statute of

limitations begins to run, when the claimant knows or in the exercise of ordinary

diligence should know of the wrongful act and resulting injury. Tex. Civ. Prac. &

Rem. Code Ann. § 16.004. “When the legislature employs the term "accrues"

without an accompanying definition, the courts must determine when that cause of

action accrues and thus when the statute of limitations commences to run.” Moreno

v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). “A cause of action can

generally be said to accrue when the wrongful act effects an injury, regardless of


                                          18
when the plaintiff learned of such injury.” Id. If the agreement was as alleged by

Tucker, the Bedgoods would convey the third party buyer all of Lot A-9, Tucker

would convey ten feet of Lot A-10 to the same buyer and Bedgood would convey

Tucker five feet of Lot A-11, with Tucker and Bedgood splitting $50,000 for these

additional ten feet, that agreement would have been breached at closing on May 23,

2006 when the Bedgoods did not convey five feet of Lot A-11 to Tucker and Tucker

was paid for conveying ten feet of his lot to the seller (I Suppl. at 340-343). The

fraud, civil conspiracy, unjust enrichment and breach of fiduciary duty claims would

also have accrued on the same date. As this suit was filed October 1, 2014 (I Suppl.

at 7), over eight years had passed from the accrual of Tucker’s claims which is

clearly contrary to the statute of limitations. It is Tucker’s burden, then, to raise a

fact issue which would defeat the statute of limitations. An exception to when the

cause of action accrues is the discovery rule; alleged by Tucker in his Responses (I

Suppl. at 428). The Bedgoods deny that the discovery rule applies in this case for

the reasons set forth below.

      The discovery rule applies in cases of fraud and fraudulent concealment, and

in other cases in which ‘the nature of the injury incurred is inherently undiscoverable

and the evidence of injury is objectively verifiable.’” Murphy v. Campbell, 964

S.W.2d 265, 270 (Tex. 1997). The Bedgood’s burden is to negate the discovery rule

by proving either that the rule does not apply or there is no genuine issue of material


                                          19
fact about when the plaintiff discovered or, in the exercise of reasonable diligence,

should have discovered the nature of the alleged injury. Moczygemba v.

Moczygemba, 2015 Tex. App. LEXIS 1536, *10 (Tex. App. San Antonio Feb. 18,

2015). The Bedgoods believe that the discovery rule does not apply as 1) Tucker’s

alleged injury was not inherently undiscoverable and 2) the evidence of injury is

objectively verifiable. Furthermore, there is no genuine issue of material fact about

when the plaintiff, in the exercise of reasonable diligence, should have discovered

that he was not deeded five feet of Lot A-11.

      An injury is inherently undiscoverable if it is the type of injury that is not

generally discoverable by the exercise of reasonable diligence. See BP Am. Prod.

Co. v. Marshall, 342 S.W.3d 59, 66 (Tex. 2011). “The requirement of inherent

undiscoverability recognizes that the discovery rule exception should be permitted

only in circumstances where ‘it is difficult for the injured party to learn of the

negligent act or omission.’ ” Computer Assocs. Int'l v. Altai, Inc., 918 S.W.2d 453,

455 (Tex. 1996) (quoting Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988)). The

court decides whether the nature of a plaintiff's injury is “inherently undiscoverable,”

on a categorical basis rather than a case-specific basis. Baleares Link Express, S.L.

v. GE Engine Servs.–Dallas, LP, 335 S.W.3d 833, 837 (Tex .App.—Dallas 2011, no

pet.). The court's focus is on whether a type of injury rather than a particular injury,




                                          20
is unlikely to be discovered within the prescribed limitations period despite due

diligence. Id.

      The Plaintiff admits that he never read or even looked at the documents he

received at the closing in 2006 and acknowledges that he did not receive a deed to

five feet of Lot A-11 from Bedgood at the closing (I Suppl. at 340-43, 402-03). The

Courts have repeatedly found that parties are charged with knowing what is

contained in paragraphs in documents they have in their possession. Tucker, with

his 20 years of real estate expertise, could have easily looked through his closing

documents to see if he had a deed to five feet of Lot A-11 (I Suppl. at 395). By his

own admission, he did nothing from the closing in 2006 until this petition was filed.

Inaction can never equate to reasonable due diligence.

      Whether the discovery rule applies is a question of law for the Court. Tucker

alleges that 1) “he did not discover that Bedgood had not altered the size of Lot A-

10 and A-11 until 2014,” 2) his lack of knowledge was due to the fact that “the

Bedgoods and he were in a fiduciary relationship and . . . he relied on and trusted the

Bedgoods to do what they had obligated themselves to do.” (I Suppl. at 428-429).

The alleged injury suffered here was plainly discoverable if Tucker had read the

closing documents prior to signing. Furthermore, the mere recital that “Bedgood and

he were in a fiduciary relationship” because Tucker “pled the fiduciary relationship”

between the parties does not raise a fact issue as this information is not objectively


                                          21
verifiable. Tucker instead places the burden on the Bedgoods to prove “by competent

summary judgment evidence that such a relationship did not exist.” (I Suppl. at 429).

“But the fiduciary rationale is, in reality, a variation on the inherently undiscoverable

element. Fiduciaries are presumed to possess superior knowledge, meaning the

injured party, the client, is presumed to possess less information than the fiduciary.

Consequently, in the fiduciary context, it may be said that the nature of the injury is

presumed to be inherently undiscoverable, although a person owed a fiduciary duty

has some responsibility to ascertain when an injury occurs.” Computer Assocs. Int'l,

918 S.W.2d at 456. There was no ongoing attorney-client relationship between

Bedgood and Tucker, as evidenced by the Non-Representation letters signed by

Tucker (I Suppl. at 293). Tucker provides the Court with an earnest money contract

and deposition testimony that shows merely that ten feet of his land was deeded to

the third party buyer but cannot and does not show that this transfer was in anyway

fraudulent or wrong. Since the discovery rule does not apply, Tucker’s suit was filed

outside of the limitations period and the affirmative defense of Statute of Limitations

is proven as a matter of law.

          c. Mutual Release

      The parties in this case signed a document entitled “Mutual Release” on

August 28, 2008. A release “surrenders legal rights or obligations between the

parties to an agreement” and operates to extinguish the claim or cause of action as


                                           22
effectively as would a prior judgment between the parties and is an absolute bar to

any right of action on the released matter.” Dresser Indus. V. Page Petroleum, 853

S.W.2d 505, 508 (Tex. 1993). A release is “expressly designated as an affirmative

defense.” Id. (citing Tex. R. Civ. P. 94). In order to establish the affirmative defense

of release, the Bedgoods must show that the releasing instrument “mentions” the

claim to be released and that the claim is clearly within the subject matter of the

release. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991)

      Tucker’s claims in this case arise from a 2006 sale of land to a third party. He

asserts that the release was only intended for claims arising from a 2005 investment

agreement and was not related to the sale of land to a third party and that the release

was procured by fraud (I Suppl. at 186). If a release is worded so that it can be given

a certain or definite legal meaning or interpretation, then it is not ambiguous and the

court will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391,

393 (Tex.1983). The Mutual Release states:

      WHEREAS, certain disagreements have arisen between
      BEDGOOD and TUCKER concerning the scope of the agreement
      and other agreements, issue, claims, transactions and causes of
      action relating to Tracts A-1 through A-11 of the Partition of the
      La Salle Hotel Tract…. WHEREAS, the parties hereto are desirous
      of settling all of their disputes, issues, causes of action or claims
      against each other relating to Tracts A-1 through A-11 of the
      Partition of the La Salle Hotel Tract.

(I Suppl. at 322). The release, as quoted above, is not ambiguous and explicitly

references disagreements relating to Tracts A-1 through A-11. The Release mentions
                                          23
an April 22, 2005 investment agreement in a paragraph before the language above,

so that “the agreement” would refer to the April 22, 2005 investment agreement and

“other agreements, issue, claims, transactions and causes of action” would

encompass the 2006 sale. Even if “the agreement” is referring to the 2005 investment

agreement, the drafters clearly took into consideration other agreements, issues,

claims, and transactions.

      NOW, THEREFORE, in consideration of the mutual promises and
      agreements herein contained, TUCKER does RELEASE, ACQUIT
      and FOREVER DISCHARGE BEDGOOD and his wife, children,
      heirs, assigns, agents, and legal representatives of and from any
      and all claims or causes of action of any kind whatsoever, at
      common law, statutory or otherwise, in contract or in tort, which
      existed before and as of the date of this agreement, including any
      and all claims or causes of action which TUCKER did not know or
      suspect to exist in his favor at the time of the execution of this
      agreement, directly or indirectly attributable to, or arising out of
      or relating to all of their disputes, issues or claims against each
      other relating to Tracts A-1 through A-11 of the Partition of the LA
      SALLE HOTEL …..This Release is intended to be and is final and
      binding between the parties hereto regardless of any claim of
      misrepresentation, promise made without the intention of
      performing, concealment of fact, mistake of fact or law, or any
      other circumstances whatsoever other than as set forth in this
      Release. Each party is aware that it may hereafter discover claims
      or facts in addition to or different for those it now knows or believes
      to be true with respect to the matters related herein. Nevertheless,
      it is the intention of the parties to fully, finally and forever settle all
      such matters, and all claims relative thereto, which now exist, may
      exist, or heretofore have existed between them with respect to
      Tracts A-1 through A-11 of the Partition of the LA SALLE HOTEL.

(I Suppl. at 324). The 2006 sale of Lot A-9 is clearly within the “all claims or causes

of action of any kind whatsoever…relating to Tracts A-1 through A-11.” Tucker is
                                            24
barred from suit for breach of contract, fraud, civil conspiracy, unjust enrichment,

and breach of fiduciary duty claims regarding a claim for a lot which was expressly

released by the agreement.



                                    PRAYER

      For these reasons, the Bedgoods ask this Court to affirm the trial court’s

summary judgment.



                                              Respectfully submitted,

                                              KLOTZMAN LAW FIRM, PLLC
                                              603 E. Mesquite Ln.
                                              Victoria, TX 77901
                                              Tel: (361) 485-9312
                                              Fax: (361) 237-3591



                                              By:
                                              ____________________________
                                              Rachel F. Klotzman
                                              State Bar No. 24049710
                                              Attorney for Appellees




                                         25
                           CERTIFICATE OF SERVICE

      This certifies that the undersigned served this Appellees’ Brief on Tom

Tucker, Appellant, by sending it to lead counsel for Appellant, Robert P. Houston,

at 30 Meadow View, Victoria, TX 77904, by electronic service by transmission to

an electronic filing service provider for service through the state’s electronic filing

manager on September 16, 2015.




                                               _________________________
                                               Rachel F. Klotzman
                                               Attorney for Cross-Appellants




                                          26
      CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)

          I certify that this document contains 5911 words, as indicated by the word-

count function of the computer program used to prepare it, and excluding the caption,

identity of parties and counsel, statement regarding oral argument, table of contents,

index of authorities, statement of the case, statement of issues presented, statement

of jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance, and appendix, as provided by Appellate Rule

9.4(i).



                                                _________________________
                                                Rachel F. Klotzman
                                                Attorney for Appellees




                                           27
APPENDIX




           A1
                                    CAUSE NO. CIVl-17046

TOM TUCKER                                           §             IN THE COUNTY COURT
                                                     §
v.                                                   §             ATLAWNUMBER 1
                                                     §
ROBERT CARL BEDGOOD                                  §             VICTORIA COUNTY, TEXAS


                                           JUDGMENT

        On this the 18th of February, 2015, the Court heard the Defendant's Traditional and No

Evidence Motion for Summary Judgment against Plaintiff filed in this cause. Plaintiff appeared

by his attorney, Robert P. Houston, and Defendant appeared by his attorney, Amanda Pierce.


        The Court has considered the records and files in this matter, the affidavits on file and all

other papers and documents filed by the parties, and the oral argument of counsel for the

respective parties and the briefs filed by counsel, and finds that there is no genuine issue of

material facts and that Defendant is entitled to judgment as a matter of law.


        IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED, that Defendant's

Traditional and No Evidence Motion for Summary Judgment against Plaintiff is hereby

GRANTED, and that summary judgment be entered in favor of Defendant and against Plaintiff.

        IT IS ACCORDINGLY ORDERED, ADJUDGED, AND DECREED, that Defendant

recover from Plaintiff judgment for$     ~               in reasonable and necessary attorney's fees.

All relief not expressly granted herein is denied.


        SIGNED this ;). 3 day of February,      20~ ~

     ;ryw &6t5&apv                                   c   ~~~~ ccfr
                                              HONORABLE TRAVIS H. ERNST
              FEB 2 3 lOl5

     Cieri< County ~~~County, Texas
     By     7/'V             Deputy

                                                                                                        A2
                                         PROMULGATED BY THE TEXAS REAL ESTATE COMMIS~10N (TREC)                                                                        01-()EH)3


                                                      UNIMPROVED PROPERTY CONTRACT
                                                    NOTICE: Not For Use For Condominium Transactions

1. PARTIES: Carl        Bedg ood and wife L aura Bedgood
                                                I                            (Seller)
    agrees to sell and convey to .!I!J~P-B:..ry~anu.L.·------------------------
    - -- - - -- -- -- - -- - - - - -- - -- - - -----(Buyer) and Buyer agrees
    to buy from Seller the property described below.
2. PROPERTY: Lot A -9             , Block _ _--t~l.___ _ , ...            l ...
                                                            L!i!lla~s.~~~a. l e2 _.A
                                                                                   0 d            · oo.un...__ _ _ _ _ _ __ _
                                                                                             · t-.+~
                                                                                     loi:d,.1._
   Addition, City of - - - - - - - - -- - -- , _ _ ____..:Cic.!a~~.ol~.Jh.uo.u.uunL-_ _ _ County, Texas, known as
   Lot A -9 Park St. Port O ' Connor                                                                                      77982
    - -- - -- - - - - -- -- - - - - - -- - - - - - - - - --                                             (address/zip code),
    or as described on attached exhibit together with all rights, privileges and appurtenances pertaining thereto, including
    but not limited to: water rights, claims, permits, strips and gores, easements, and cooperative or association
    memberships (the Property).
3. SALES PRICE:
   A. Cash portion of Sales Price payable by Buyer at closing .................................................... $ _ _ _....,2w7.....~....,.5~o:.:.!o~.:.:.!o~o
   B. Sum of all financing described below ................................................................................... $ _ _____e:2. ;! .4. :. 7........:
                                                                                                                                                              5.x.O.x.
                                                                                                                                                                   O_,_ • .x.0.¥.0
   c. Sales Price (Sum of A and B) .. ............................................................................................ $ _ ___;2.._7.._.5.._..._.o....,o~o.....=o.,.,o
4. FINANCING: The portion of Sales Price not payable in cash will be paid as follows: (Check applicable boxes below)
   filA. THIRD PARTY FINANCI NG: One or more third party mortgage loans in the total amount of
          $ 2 47.500 oo          I    . If the Property does not satisfy the lenders' underwriting requirements for the loan(s),
          this contract will terminate and the earnest money will be refunded to Buyer. (Check one box only)
      li) (1) This contract is subject to Buyer being approved for the financing described in the attached Third Party
              Financing Condition Addendum.
      0 (2) This contract is not subject to Buyer being approved for financing.
   0 B. ASSUMPTION: The assumption of the unpaid principal balance of one of more promissory notes described in
          the attached TREC Loan Assumption Addendum.
   0 C. SELLER FINANCING: A promissory note from Buyer to Seller of$                                 , bearing               %
          interest per annum, secured by vendor's and deed of trust liens, and containing the terms and conditions
          described In the attached TREC Seller Financing Addendum. If an owner policy of title insurance is furnished,
          Buyer shall fum ish Seller with a mortgagee policy of title insurance.
5. EARNEST MONEY: Upon execution of this contract by both parties, Buyer shall deposit$ 2 500. 00                         ,                I



   as earnest money with                           Bedgood Title Company                                 as escrow agent,
   at                                  300 E Airline' victoria TX 77901
                                                                  I                                        I




   (address). Buyer shall deposit additional earnest money of$ N / A                      with escrow agent within _ _ _
   days after the effective date of this contract If Buyer fails to deposit the earnest money as required by this contract,
   Buyer will be in default.
6. TITLE POLICY AND SURVEY:
   li1 A TITLE POLICY: Seller shall furnish to Buyer at li) Seller's 0 Buyer's expense an owner policy of title
         insurance {Title Policy) issued by                         Bedgood Title Company
         (Trtle Company) in the amount of the Sales Price, dated at or after closing, insuring Buyer against loss under the
         provisions of the Title Policy, subject to the promulgated exclusions (including existing building and zoning
         ordinances) and the following exceptions:
         (1) Restrictive covenants common to the platted subdivision in which the Property is located.
         (2) The standard printed exception for standby fees, taxes and assessments.
         (3) Liens created as part of the financing described in Paragraph 4.
         (4) Utility easements created by the dedication deed or plat of the subdivision in which the Property is located.
         (5) Reservations or exceptions otherwise permitted by this contract or as may be approved by Buyer in writing.
         (6) The standard printed exception as to marital rights.
         (7) The standard printed exception as to waters, tidelands, beaches, streams, and related matters.
         (8) The standard prin~ ~xception as to discrif~o~'/ '"'\ nm~s , shortages in area or boundary lines,

                                    .~
Initialed for identification by Buyer   ~_ _ and Seller
                                      _ "---                                          q. ~~ ·~~(fj
                                                                                             d!:::::../ .-7                      01A                       TREC NO . 9-5
(fAR-1607) 1-6-03                                                                        ~   11,                                                                   Page 1 of 8
ERA Realty Group, Inc. 302 E. Airline, Victoria T         901
Phone: 361·572·3333            Fax: 361 ·572~979                      Tom Tuclccr, Broker                                                                        Lot A·9 POC.zf
                       Produced with ZlpForm,.. by RE FormsNet, LLC 18025 Fifteen Mile Road, Clinton Township, Michigan <48035 www.zjpfor!D,com

                                                                                                                                                                              A3
                                      ~ot   A-9 Park St . Port O'Connor
Contract Concerning-----------.,.~=----:-:----:--:------------- Page Two 01-06-03
                                                   (Address of Property)
              encroachments or protrusions, or overlapping improvements. Buyer, at Buyer's expense, may have the
              exception amended to read, "shortages In area".
   B. COMMITMENT: Within 20 days after the Title Company receives a copy of this contract, Seller shall furnish to
       Buyer a commitment for title Insurance (Commitment) and, at Buyer's expense, legible copies of restrictive
       covenants and documents evidencing exceptions in the Commitment (Exception Documents) other than the
       standard printed exceptions. Seller authorizes the Trtle Company to mail or hand deliver the Commitment and
       Exception Documents to Buyer at Buyer's address shown in Paragraph 21. If the Commitment and Exception
       Documents are not delivered to Buyer within the specified time, the time for delivery will be automatically
       extended up to 15 days or the Closing Date, whichever is earlier.
   C. SURVEY: The survey must be made by a registered professional land surveyor acceptable to the Title Company
       and any lender. (Check one box only)
      0 (1) Within                  days after the effective date of this contract, Seller, at Seller's expense, shall furnish a
               new survey to Buyer.
      ~ (2) Within          20      days after the effective date of this contract, Buyer, at Buyer's expense, shall obtain a
               new survey.
      0 (3) Within                 days after the effective date of this contract, Seller shall furnish Seller's existing survey
               of the Property to Buyer and the Title Company, along with Seller's affidavit acceptable to the Title
               Company for approval of the survey. If the survey is not approved by the Title Company or Buyer's
               lender, a new survey will be obtained at 0 Seller's 0 Buyer's expense no later than 3 days prior to the
               Closing Date.
   D. OBJECTIONS : Within __s__ days after Buyer receives the Commitment, Exception Documents and the survey,
       Buyer may object in writing to (I) defects, exceptions, or encumbrances to title: disclosed on the survey other
       than items 6A(1) through (7) above; disclosed in the Commitment other than items 6A(1) through (8) above; (ii)
       any portion of the Property lying in the 100 year flood plain as shown on the current Federal Emergency
       Management Agency map; or (iii) any exceptions which prohibit the following use or activity: Single Family
     ' Residence
       Buyer's failure to object within the time allowed will constitute a waiver of Buyer's right to object; except that the
       requirements in Schedule C of the Commitment are not waived. Seller shall cure the timely objections of Buyer
       or any third party lender within 15 days after Seller receives the objections and the Closing Date will be extended
       as necessary. If objections are not cured within such 15 day period, this contract will terminate and the earnest
       money witt be refunded to Buyer unless Buyer waives the objections.
   E. TITLE NOTICES:
       (1) ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering the Property
           examined by an attorney of Buyer's selection, or Buyer should be furnished with or obtain a Title Policy. If a
           Title Policy is furnished, the Commitment should be promptly reviewed by an attorney of Buyer's choice due
           to the time limitations on Buyer's right to object.
       (2) MANDATORY OWNERS' ASSOCIATION MEMBERSHIP: The Property I&) is 0 is not subject to mandatory
           membership in an owners' association. If the Property is subject to mandatory membership in an owners'
           association, Seller notifies Buyer under §5.012, Texas Property Code, that, as a purchaser of property in the
           residential community in which the Property is located, you are obligated to be a member of the owners'
           association. Restrictive covenants governing the use and occupancy of the Property and a dedicatory
           instrument governing the establishment, maintenance, and operation of this residential community have
           been or will be recorded in the Real Property Records of the county in which the Property is located. Copies
           of the restrictive covenants and dedicatory instrument may be obtained from the county clerk. You are
           obligated to pay assessments to the owners' association. The amount of the assessments is subject to
           change. Your failure to pay the assessments could result in a lien on and the foreclosure of the Property.
     (3) STATUTORY TAX DISTRICTS: If the Property is situated in a utility or other statutorily created district
           providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Texas Water Code
           requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness,
           or standby fee of the district prior to final execution of this contract.
     (4) TIDE WATERS: If the Property abuts the tidally influenced waters of the state, §33.135, Texas Natural
           Resources Code, requires a notice regarding coastal area property to be included in the contract. An
           addendum containing lt\Et'{lotice promulgated by TREC or required by the parties must be used.
                                  \\\)                     //     ........   ")

                                                                                           01A                 TREC NO. 9-5
                                                                                                                     Page 2 ofB
                                                                                                                    Lot A·9 POC.zf
                                                                                                                               A4
                                                ~ot     A-9 Park St. Port O'Connor
Contract Concerning ----------~;-;----;-;:;------:-~----------Page Three 01-06-03
                                    (Address of Property)

          (5) ANNEXATION: If the Property is located outside the limits of a municipality, Seller notifies Buyer under
              §5.011 , Texas Property Code, that the Property may now or later be included in the extraterritorial jurisdiction
              of a municipality and may now or later be subject to annexation by the municipality. Each municipality
              maintains a map that depicts its boundaries and extraterritorial jurisdiction. To determine if the Property is
              located within a municipality's extraterritorial jurisdiction or is likely to be located within a municipality's
              extraterritorial jurisdiction, contact all municipalities located in the general proximity of the Property for further
              information.
          (6) UNIMPROVED PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE
              PROVIDER: If the Property is located in a certificated service area of a utility service provider and the
              Property does not receive water or sewer service from the utility service provider on the date the Property is
              transferred, §13.257, Texas Water Code, requires a notice regarding the cost of providing water or sewer
              services to the Property. An addendum containing the notice promulgated by TREC or required by the
              parties must be used.
          (7) TEXAS AGRICULTURAL DEVELOPMENT DISTRICT: The Property 0 is li} is not located in a Texas
              Agricultural Development District.
7. PROPERTY CONDIT10N:
   A.  INSPECTIONS, ACCESS AND UTILITIES: Buyer may have the Property inspected by inspectors selected by
       Buyer and licensed by TREC or otherwise permitted by law to make inspections. Seller shall permit Buyer and
       Buyer's agents access to the Property at reasonable times. Seller shall pay for turning on existing utilities.
       NOTICE: Buyer should determine the availability of utilities to the Property suitable to satisfy Buyer's needs.
   B.  ACCEPTANCE OF PROPERTY CONDITION: Buyer accepts the Property in its present condition; provided
       Seller, at Seller's expense, shall complete the following: Brinq in fill dirt to raise level of
          lot to the same as adjoininq lots
     C.   COMPLETION OF REPAIRS: Unless otherwise agreed in writing, Seller shall complete all agreed repairs prior to
          the Closing Date. All required permits must be obtained, and repairs must be performed by persons who are
          licensed or otherwise permitted by law to provide such repairs. At Buyer's election, any transferable warranties
          received by Seller with respect to the repairs will be transferred to Buyer at Buyer's expense. If Seller fails to
          complete any agreed repairs prior to the Closing Date, Buyer may do so and receive reimbursement from Seller
          at closing. The Closing Date will be extended up to 15 days, if necessary, to complete repairs.
     D.   ENVIRONMENTAL MATTERS: Buyer is advised that the presence of wetlands, toxic substances, including
          asbestos and wastes or other environmental hazards, or the presence of a threatened or endangered species or
          its habitat may affect Buyer's intended use of the Property. If Buyer is concerned about these matters, an
          addendum promulgated by TREC or required by the parties should be used.
     E.   SELLER'S DISCLOSURES: Except as otherwise disclosed in this contract, Seller has no knowledge of the
          following:
          (1) any flooding of the Property which has had a material adverse effect on the use of the property;
          (2) any pending or threatened litigation, condemnation, or special assessment affecting the Property;
          (3) any environmental hazards or conditions which materially affect the Property ;
          (4) any dumpsite, landfill, or underground tanks or containers now or previously located on the Property;
          (5) any wetlands, as defined by federal or state law or regulation, affecting the Property; or
          (6) any threatened or endangered species or their habitat affecting the Property.
a.   BROKERS' FEES: All obligations of the parties for payment of brokers' fees are contained in separate written
     agreements.
9. CLOSING:
   A.  The closing of the sale will be on or before            Aoril 2 1             , 200 6        , or within 7 days after
       objections to matters disclosed in the Commitment or by the survey have been cured, whichever date is later
       (Closing Date). If either party fails to close the sale by the Closing Date, the non-defaulting party may exercise
       the remedies contained in Paragraph 15.
   B.  At closing:
       (1) Seller shall execute and deliver a general warranty deed conveying title to the Property to Buyer and
           showing no additional e~ptions to those permitted in Paragraph 6 and furnish tax statements or certificates
           showing no delinquentLi-f on the Property.

Initialed for identification by Buyer          ~ and Sell~                       .L   ~~                            01A             TREC NO. 9-5
(TAR-1607) 1-6-03                                  ~   l                                                                                Page 3 of8
          Produced wtth ZipFOITTI,. by RE FormsNet. LL'q(eo25 Fifteen Mile Road, Clinton Township, Michigan 48035 www.zlpfonn.com      Lot A-9 POC.zi
                                                                                                                                                  A5
                                                ~~t    A-9 Park St . Port O'Connor
Contract Concerning --------------,~,----=-=---,.....,------------ Page Four 01-06-03
                                  (Address of Property)
          (2) Buyer shall pay the Sales Price in good funds acceptable to the escrow agent.
          (3) Seller and Buyer shall execute and deliver any notices, statements, certificates, affidavits, releases, loan
               documents and other documents required of them by this contract, the Commitment or law necessary for the
               closing of the sale and the issuance of the litle Policy.
    C.    Unless expressly prohibited by written agreement, Seller may continue to show the Property and receive,
          negotiate and accept back up offers.
     D.   All covenants, representations and warranties in this contract survive closing.
10. POSSESSION: Seller shall deliver possessiOn of the Property to Buyer upon closing and funding.
11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to this sale. TREC rules
    prohibit licensees from adding factual statements or business details for which a contract addendum or other form has
    been promulgated by TREC for mandatory use.)
    Lot A-9 will be enlarged to 70 feet by decreasing l ots 10 and 11 by five feet
    each .




12. SETTLEMENT AND OTHER EXPENSES:
    A. The following expenses must be paid at or prior to closing:
       (1 ) Expenses payable by Seller (Seller's Expenses):
            (a) Releases of existing liens, including prepayment penalties and recording fees; release of Seller's loan
                liability; tax statements or certificates; preparation of deed; one-half of escrow fee; and other expenses
                payable by Seller under this contract.
            (b) Seller shall also pay an amount not to exceed$ N/a                                          to be applied to
                Buyer's Expenses.
       (2) Expenses payable by Buyer (Buyer's Expenses):
            (a) Loan origination, discount, buy-down, and commitment fees (Loan Fees).
            (b) Appraisal fees; loan application fees; credit reports; preparation of loan documents; interest on the notes
                from date of disbursement to one month prior to dates of first monthly payments; recording fees; copies of
                easements and restrictions; mortgagee title policy with endorsements required by lender; loan-related
                inspection fees; photos, amortization schedules, one-half of escrow fee; transfer fees for cooperative or
                association membership for utility services; all prepaid items, including required premiums for flood and                                 \,_
                hazard insurance, reserve deposits for insurance, ad valorem taxes and special governmental
                assessments; final compliance inspection; courier fee, repair inspection, underwriting fee and wire
                transfer, expenses incident to any loan, and other expenses payable by Buyer under this contract.
    B. Buyer shall pay Private Mortgage Insurance Premium (PMI), VA Loan Funding Fee, or FHA Mortgage Insurance
       Premium (MIP) as required by the lender.
    C. If any expense exceeds an amount expressly stated in this contract for such expense to be paid by a party, that
       party may terminate this contract unless the other party agrees to pay such excess. Buyer may not pay charges
       and fees expressly prohibited by FHA, VA, Texas Veteran's Housing Assistance Program or other governmental
       loan program regulations.
13. PRORATIONS AND ROLLBACK TAXES:
    A. PRORATIONS: Taxes for the current year, interest, maintenance fees, assessments, dues and rents will be
       prorated through the Closing Date. If taxes for the current year vary from the amount prorated at closing, the
       parties shall adjust the pro~ra~tions when tax statements for the current year are available. If taxes are not paid at
       or prior to closing, Buyer sh p~~ taxes for the current year.
    B. ROLLBACK TAXES: If thi             ~ or Buyer's use of the Property after closing results in the assessment of
Initialed for identification by Buyer        ' D : a n d Sell£7::..1 J                     CG                         01A            TREC NO. 9-5
(TAR-1607) 1-6-03                                                                                                                       Page 4 of 8
          Produced with ZlpForm N by RE FormsNet,     18025 Fifteen Mile Road, Clinton Townahlp, Michigan 48035   www zjpfprm.COfD      Lot A -9 POC.zi

                                                                                                                                                    A6
                                                 .a..ot A-9 Park S t . Port O'Connor
Contract Concerning ----------~:--:-:--=-=--~=-------------Page Five                                                                       01-06-03
                                                                  (Address of Property)
         additional taxes, penalties or interest (Assessments) for periods prior to closing, the Assessments will be the
         obligation of Buyer. If Seller's change in use of the Property prior to closing or denial of a special use valuation on
         the Property claimed by Seller results in Assessments for periods prior to closing, the Assessments will be the
         obligation of Seller. Obligations imposed by this paragraph will survive closing.
14. CASUALTY LOSS: If any part of the Property is damaged or destroyed by fire or other casualty after the effective
    date of this contract, Seller shall restore the Property to its previous condition as soon as reasonably possible, but in
    any event by the Closing Date. If Seller fails to do so due to factors beyond Seller's control, Buyer may (a) tenninate
    this contract and the earnest money will be refunded to Buyer (b) extend the time for performance up to 15 days and
    the Closing Date will be extended as necessary or (c) accept the Property in its damaged condition with an
    assignment of insurance proceeds and receive credit from Seller at closing in the amount of the deductible under the
    insurance policy. Seller's obligations under this paragraph are independent of any obligations of Seller under
    Paragraph 7.
15. DEFAULT: If Buyer fails to comply with this contract, Buyer will be in default, and Seller may (a) enforce specific
    performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the
    earnest money as liquidated damages, thereby releasing both parties from this contract. If, due to factors beyond
    Seller's control, Seller fails within the time allowed to make any non-casualty repairs or deliver the Commitment, or
    survey, if required of Seller, Buyer may (a) extend the time for performance up to 15 days and the Closing Date will
    be extended as necessary or (b) terminate this contract as the sole remedy and receive the earnest money. If Seller
    fails to comply with this contract for any other reason, Seller will be in default and Buyer may (a) enforce specific
    performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the
    earnest money, thereby releasing both parties from this contract.
16. MEDIATION: It is the policy of the State of Texas to encourage resolution of disputes through alternative dispute
    resolution procedures such as mediation. Any dispute between Seller and Buyer related to this contract which is not
    resolved through informal discussion 0 will !&) will not be submitted to a mutually acceptable mediation service or
    provider. The parties to the mediation shall bear the mediation costs equally. This paragraph does not preclude a
    party from seeking equitable relief from a court of competent jurisdiction.
17. ATTORNEY'S FEES: The prevailing party in any legal proceeding related to this contract is entitled to recover
    reasonable attorney's fees and all costs of such proceeding incurred by the prevailing party.
18. ESCROW: The escrow agent is not (a) a party to this contract and does not have liability for the perfonnance or
    nonperfonnance of any party to this contract, (b) liable for interest on the earnest money and (c) liable for the loss of
    any earnest money caused by the failure of any financial Institution in which the earnest money has been deposited
    unless the financial institution is acting as escrow agent. At closing, the earnest money must be applied first to any
    cash down payment, then to Buyer's Expenses and any excess refunded to Buyer. If both parties make written
    demand for the earnest money, escrow agent may require payment of unpaid expenses incurred on behalf of the
    parties and a written release of liability of escrow agent from all parties. If one party makes written demand for the
    earnest money, escrow agent shall give notice of the demand by providing to the other party a copy of the demand. If
    escrow agent does not receive written objection to the demand from the other party within 30 days after notice to the
    other party, escrow agent may disburse the earnest money to the party making demand reduced by the amount of
    unpaid expenses incurred on behalf of the party receiving the earnest money and escrow agent may pay the same to
    the creditors. If escrow agent complies with the provisions of this paragraph, each party hereby releases escrow                                     '·
    agent from all adverse claims related to the disbursal of the earnest money. Escrow agent's notice to the other party
    will be effective when deposited in the U. S. Mail, postage prepaid, certified mail, return receipt requested, addressed
    to the other party at such party's address shown below. Notice of objection to the demand will be deemed effective
    upon receipt by escrow agent.
19. REPRESENTATIONS: Seller represents that as of the Closing Date (a) there will be no liens, assessments, or
    security interests against the Property which will not be satisfied out of the sales proceeds unless securing payment
    of any loans assumed by Buyer and (b) assumed loans will not be in default If any representation of Seller in this
    contract is untrue on the Closing Date, Buyer may tenninate this contract and the earnest money will be refunded to
    Buyer.

Initialed for identification by Buyer                        and Sell                                                01A             TREC NO. 9-5
(TAR-1607) 1-S-03                                                                                                                        Page 5 of8      __.-

          Produced with ZJpFonn.,... by RE FormsNet. LLC 18025 Fifteen Mile Road, Clinton Township, Michigan 48035 www.zlpform,com      Lot A-9 POC.zf


                                                                                                                                                   A7
                                                     ~ot      A-9 Park St. Port O'Connox
Contract Conceming      - - - - - - - - ---..,.,....,,...,.---=-=:------:--:-------------
                                                 (Address of Property)
                                                                                          Page Six                                        01..()6..()3


20. FEDERAL TAX REQUIREMENTS : If Seller is a "foreign person,· as defined by applicable law, or if Seller fails to
    deliver an affidavit to Buyer that Seller is not a "foreign person,· then Buyer shall withhold from the sales proceeds an
    amount sufficient to comply with applicable tax law and deliver the same to the Internal Revenue Service together
    w ith appropriate tax forms. Internal Revenue Service regulations require filing written reports if currency in excess of
    specified amounts is received in the transaction.
21. NOTICES: All notices from one party to the other must be in writing and are effective when mailed to, hand-delivered
    at, or transmitted by facsimile as follows:

     To Buyer at:                                                                       To Seller at:

         12 "}.... l         A/ktl(a.i< ,k:Je                        II?~               300 E . Airline

         ~                     ,-z;;:                  7 20/0                           victoria. TX 77901




     Telephone: - - - - - - - - - - - - --                                              Telephone: C361l 573-1785


     Facsimile: - - - - - - - - -- - - - --                                             Facsimile: C361l 575-7581
22. AGREEMENT OF PARTIES: This contract contains the entire agreement of the parties and cannot be changed
    except by their written agreement Addenda which are a part of this contract are (check all applicable boxes):

     IX) Third Party Financing Condition Addendum                                     li1 Addendum for Coastal Area Property
     0   Seller Financing Addendum                                                    0 Addendum for Property Located
                                                                                           Seaward of the Gulf Intracoastal
                                                                                           Waterway

     0   Loan Assumption Addendum                                                     0    Addendum for Release of Liability on
                                                                                           Assumption of FHA, VA, or Conventional
                                                                                           Loan Restoration of Seller's Entitlement
                                                                                           for VA Guaranteed Loan

     IX) Addendum for Property Subject to                                             li) Addendum for Unimproved Property
         Mandatory Membership in an Owners'                                                Located in a Certificated Service Area of
         Association                                                                       a Utility Service Provider

     0   Addendum for Sale of Other Property by                                       0    Addendum for "Back-Up" Contract
         Buyer

     0   Environmental Assessment, Threatened
         or Endangered Specles and Wetlands
         Addendum
                                                          •
     I&) Other (list): Information on Broker Services


                                            ......

Initialed for identification by BuyelJ               L__       and   Selle~ LZ3                                    01A            TREC NO. 9-5

(TAR-1607) 1-6-03                                    ~                                                                                  Page 6 of 8
          Produced with ZlpForm,.., by RE   Formst!~ 18025 Fifteen Mile Road, Clinton Townahlp, Michigan <48035 www.zlpfoan com        Lot A·9 POC.zf

                                                                                                                                                  A8
                                               Lot A-9 Park St . Port O'Connor
Contract Concerning - - - - - - - ------:-:-:-:-----:-:----:--:----------- Page Seven 01-06-03
                                        (Address of Property)

23. TERMINATION OPTION: This paragraph will be a part of this contract ONLY if both blanks are filled In and
    Buyer has paid the Option Fee. Buyer has paid Seller$ N/A                           (Option Fee) for the unrestricted
    right to terminate this contract by giving notice of termination to Seller within     days after the effective date of
    this contract. If Buyer gives notice of termination within the time specified, the Option Fee will not be refunded,
    however, any earnest money will be refunded to Buyer. The Option Fee 0 will 0 will not be credited to the Sales
    Price at closing. For the purposes of this paragraph, time is of the essence; strict compliance with the time for
    performance stated herein is required.
24. CONSULT AN ATTORNEY: Real estate licensees cannot give legal advice. READ THIS CONTRACT CAREFULLY.
    If you do not understand the effect of this contract, consult an attorney BEFORE signing.

     Buyer's                                                                        Seller's
     Attomeyis: _________________________                                           Attomeyls: ~s~e~l~f     __________________________




     Telephone: -----------------------------                                       Telephone: - - - - - - - - - - - - - - - - - - - - -


     Facsimile: - - - - - - - - - - - - - ---------------                           Facsimile: - - - - - - - - - -- - - - - - - - - - - - -



EXECUTED the             a
                    "fiYh day of
(BROKER: FILL IN THE DATE OF FINAL ACCEPTANCE.)
                                                                  /22~ t{                                   , cXtJOh                (EFFECTIVE DATE).




Buyer




    The form of this contract has been approved by the Texas Real Estate Commission. TREC forms are intended for use only by trained real
    estate licensees. No representation is made as to the legal vafldity or adequacy of any provision In any specific transactions. H is not suitable
    for complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-2188, 1-300-250-8732 or (512) 459-6544
    (http://www.trec.state.tx.us) TREC NO. 9-5. This form replaces TREC NO. 9-4.




Initialed for identification by Buyer _ _ _ _ and Seller _ _ __                                                   01A                   TREC NO. 9-5
                                                                                                                                             Page 7 of8
(TAR-1607) 1-6-03
         Produced with ZlpFonn"' by RE FormsNet. LLC 18025 Fifteen Mile Road, Clinton Township, Michigan -48035 ww.y,zjotorrn,com           l..otA-9 POC.zf

                                                                                                                                                        A9
                                           Lot A-9 Park St. Port O'Connor
 Contract Concerning     - ----------:-:-:----:-=----:---------- - Page Eight                                                         01-06-03
                                                               (Address of Property)


                                                              SELLER'S RECEIPT

     Receipt of$ LJNJ-1-SJA....__ _ _ _ _ _ _ (Option Fee) in the form of - - - - - - - - - - i s acknowledged.



     Seller Car1 Bedgood                                                      Date
            and wife Laura Bedgood


                                          BROKER INFORMATION AND RATIFICATION OF FEE

     Listing Broker has agreed to pay Other Broker                                                           of the total
     Sales Price when Listing Broke(s fee is received. Escrow Agent is authorized and directed to pay Other Broker from
     Listing Broker's fee at dosing.

     _____________________ ERA                                                        Bealty Groyp. Inc.
     Other Broker                                                             Listing Broker

     License No.                                                Telephone License No.                                               Telephone
     represents      0    Buyer only as Buyer's agent                         represents      0    Seller and Buyer as an intermediary
                     0    Seller as Listing Broker's subagent                                 fi) Seller only as Seller's agent


     Associate                             Listing Associate
                                           Tom Tucker
     ----------------------------------~'~3~6~1L)K5~7~2_-~33~3~3&---------------------­
     Telephone                             Telephone
     _____________________ 302 E . Airline Victoria. TX 77901
     Broker's Address                      Listing Associate's Office Address
     -----------------------------------~<~3~6~1L)~5~7-2_-~8~97~9______________________
     Facsimile                             Facsimile

                                                                              Selling Associate


                                                                              Telephone

                                                                              Selling Associate's Office Address

                                                                              Facsimile




                                                   ...........,_,"'-':..__-_ _ _ Earnest Money in the form of              oi-7:<A
                  ~~~~~~~m:J_____ Date:                                                                             -.3/CJ::ttbh


     ..L..I!=~<.!o!.:!r...l!:..!~___:~r-..,c.-------..:!~-------.L...!...o<.X.s Facsimile:
                                                                            Zip

                                                                                                                 01A             TREC NO. 9-5
(TAR-1607) 1-6-03                                                                                                                    Page 8 of8
     Produced with ZipFonn...,. by RE FonnsNet, LLC 18025 Fifteen Mile Road, Clinton Township, Michigan 48035   www.VDform.com          Lot A·9 POC.z!
                                                                                                                                                   A10
                                                                                                                                                  02-09-2004
                                      PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC}

                                     THIRD PARTY FINANCING CONDITION ADDENDUM
                                                 TO CONTRACT CONCERNING THE PROPERTY AT

             Lot A-9 Park St . Port O'Connor
                                                                  (Street Address and City}

      Buyer shall apply promptly for all financing described below and make every reasonable effort to obtain financing
      approval including but not limited to furnishing all information and documents required by lender for approval.
      Financing approval will be deemed to have been obtained when the lender determines that Buyer has satisfied all
      of lender's financial requirements (those items relating to Buyer's assets, income and credit history). If Buyer
      cannot obtain financing approval, Buyer must give written notice to Seller within   25     days after the effective
      date of this contract and this contract will tenninate and the earnest money will be refunded to Buyer. If Buyer
      does not give such notice within the time allowed, this contract will no longer be subject to Buyer being
      approved for the financing described below. For purposes of this paragraph, time Is of the essence; strict
      compliance with the times for performance herein stated Is required.
      Each note must be secured by vendor's and deed of trust liens.
      131 A. CONVENTIONAL FINANCING:
             131 (1) A first mortgage loan in the principal amount of$ 247.500. 00                                (excluding
                        any financed PMI premium), due in full in              20               year(s), with interest not to
                        exceed         8. 000        % per annum for the first  20     year(s) of the loan with Loan Fees
                        (loan origination, discount. buy~own, and commitment fees) not to exceed         3. ooo         %of
                        the loan.
               0    (2) A second mortgage loan in the principal amount of$                                        (excluding
                        any financed PMI premium), due in full in                               year(s), with interest not to
                        exceed                 % per annum for the first          year(s) of the loan with loan Fees (loan
                        origination, discount. buy~own, and commitment fees) not to exceed                          % of the
                        loan.
      0   B. TEXAS VETERANS' HOUSING ASSISTANCE PROGRAM LOAN: A Texas Veteran's Housing
             Assistance Program Loan of $                           for a period of at least     years at the
             Interest rate established by the Texas Veteran's Land Board at the time of closing.
      0   C. FHA INSURED FINANCING: A Section                                         FHA insured loan of not less than
             $                                      (excluding any financed MIP), amortizable monthly for not less than
             - - - - - - y e a r s , with interest not to exceed              % per annum for the first          year(s)
             of the loan with Loan Fees (loan origination, discount, buy~own, and commitment fees) not to exceed
             - - - - - - - % of the loan. As required by HUD-FHA, if FHA valuation is unknown, "It is expressly
             agreed that, notwithstanding any other provision of this contract, the purchaser (Buyer) shall not be
             obligated to complete the purchase of the Property described herein or to incur any penalty by forfeiture of
             earnest money deposits or otherwise unless the purchaser (Buyer) has been given in accordance with
             HUDIFHA or VA requirements a written statement issued by the Federal Housing Commissioner,
             Department of Veterans Affairs, or a Direct Endorsement Lender setting forth the appraised value of the
             Property of not less than $                                . The purchaser (Buyer) shall have the privilege
             and option of proceeding with consummation of the contract without regard to the amount of the appraised
             valuation. The appraised valuation is arrived at to determine the maximum mortgage the Department of
             Housing and Urban Development will insure. HUD does not warrant the value or the condition of the
             Property. The purchaser (Buyer) should satisfy himself/herself that the price and the condition of the
             Property are acceptable. •




Initialed for identification by Buyer                                                                                          01A             TREC NO. 40-1
(TAR- 1901} 2-9-2004                                                                                                                               Page 1 of2
ERA Realty Group, Inc. 302 E. Airline, Victoria TX 77
Pbone:361-572·3333             Fax: 361-572-8979              Tom Tuclcer, Brolcer                                                                Lot A-9 POC.zf
                     Produced with ZlpForm"' by RE ForrnsNet, LLC 18025 Fifteen Mile Road, Clinton Township, Michigan 48035 www.zicforrn.com

                                                                                                                                                            A11
   Third Party Financing Condition Addendum Conceming                                                                           Page Two   02-09-2004



                                    Lot A-9 Park St. Port O'Connor.                                     TX        77982
                                                                  (Address of Property)



    0   D. VA GUARANTEED FINANCING: A VA guaranteed loan of not less t h a n $ - - - - - - - - - -
           (excluding any financed Funding Fee), amortizable monthly for not less t h a n - - - - - - - years,
           with interest not to exceed             % per annum for the first                 year(s) of the loan
           with Loan Fees (loan origination, discount, buy-down, and commitment fees) not to exceed
           - - - - - %of the loan.
            VA NOTICE TO BUYER: "It is expressly agreed that, notwithstanding any other provisions of this
            contract, the Buyer shall not incur any penalty by forfeiture of earnest money or otherwise or be obligated
            to complete the purchase of the Property described herein, If the contract purchase price or cost exceeds
            the reasonable value of the Property established by the Department of Veterans Affiars. The Buyer shall,
            however, have the privilege and option of proceeding with the consummation of this contract without
            regard to the amount of the reasonable value established by the Department of Veterans Affairs. •

            If Buyer elects to complete the purchase at an amount in excess of the reasonable value established by
            VA, Buyer shall pay such excess amount in cash from a source which Buyer agrees to disclose to the VA
            and which Buyer represents wiiJ not be from borrowed funds except as approved by VA If VA reasonable
            value of the Property is less than the Sales Price, Seller may reduce the Sales Price to an amount equal to
            the VA reasonable value and the sale will be closed at the lower Sales Price with proportionate
            adjustments to the down payment and the loan amount

    Buyer hereby authorizes any lender to furnish to the Seller or Buyer or their representatives information relating
    only to the status of financing approval of Buyer.




            Buyer
                                                                                                          Laura Bedgood




                The form has been approved by the Texas Real Estate Commission for use with similar1y approved or
                promulgated contract forms. Such approval relates to this form only. TREC forms are intended for
                use only by trained real estate licensees. No representation is made as to the legal validity or
                adequacy of any provision in any specific transactions. It is not suitable for complex transactions.
                Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-2188, 1-800-250-8732 or (512)
                459-6544 (http:llwww.trec.state.tx.us) TREC No. 40-1 . This form replaces TREC No. 40-0.




                                                                                                                         01A           TREC NO. 40-1
(TAR- 1901) 2-9-2004                                                                                                                         Page 2 of2

         Produced wfth ZlpForm"' by RE FormsNet, LLC 18025 Fifteen Mile Road, Clinton Township, Michigan -48035   www zlpform,com           Lot A-9 POC.zf


                                                                                                                                                      A12
       (5)                                                                                                                                           8-15-05


       --
       OPPORTUIIITY
                                               APPROVED BY THE TEXAS REAL ESTATE COMMISSION (TREC)
                                                        P.O. BOX 12188, AUSTIN, TX 78711·2188

                                               ADDENDUM FOR
                                           PROPERTY LOCATED IN A
                           CERTIFICATED SERVICE AREA OF A UTILITY SERVICE PROVIDER

                                         TO CONTRACT CONCERNING THE PROPERTY AT
                                                      Lot A-9 Park St. Port O'Connor


                                                                       (Location of Property)

                      IN ACCORDANCE WITH SECTION 13.257, TEXAS WATER CODE, THE FOLLOWING
                      STATEMENT IS INCLUDED AS PART OF THE CONTRACT:


                                                     NOTICE TO PURCHASERS
                      The real property, described above, that you are about to purchase may be located in a
                      certificated water or sewer service area, which is authorized by law to provide water or
                      sewer service to the properties in the certificated area. If your property is located in a
                      certificated area there may be special costs or charges that you will be required to pay
                      before you can receive water or sewer service. There may be a period required to
                      construct lines or other facilities necessary to provide water or sewer service to your
                      property. You are advised to determine if the property is in a certificated area and
                      contact the utility service provider to determine the cost that you will be required to pay
                      and the period, if any, that is required to provide water or sewer service to your
                      property.
                      The undersigned purchaser hereby acknowledges receipt of the foregoing notice at or
                      before the execution of a binding contract for the purchase of the real property
                      described in the notice or at closing of purchase of the real property.
                      Except for notices included as an addendum to or paragraph of a purchase contract, the
                      notice must be executed by the seller and purchaser, as indicated.




                                                                         Date                                                                         Date




       Buyer (Purchaser)                                                  Date           Seller
                                                                                         and wife Laura Bedgood



       The fonn of this addendum has been approved by the Texas Real Estate Commission for use only with similarly approved or promulgated
       fonns of contracts. TREC fonns are intended for use only by trained real estate licensees. No representation is made as to the legal
       validity or adequacy of any provision in any specific transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-
       2188, 1-80Q-25Q-8732 or (512) 459-6544 (http://www.trec.state.tx.us) (9/05)TREC No. OP-M




                                                                                                                         01A                 TREC No. OP-M
  (TAR-1927) 8-15-05                                                                                                                               Page 1 of 1
ERA Realty Group, Inc. 302 E. Airline, Victoria TX 77901
Phone: 361-572-3333               Fax: 361-572-8979               Tom Tucker, Broker                                                                Lot A-9 POC.z:f
                         Produced with ZipForm"' by RE FormsNet, LLC 18025 Fifteen Mile Road, Clinton Township, Michigan 48035   www zipfonn.com

                                                                                                                                                               A13
                                PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC)                                                           02-09-2004

                            ADDENDUM FOR PROPERTY SUBJECT TO
                      MANDATORY MEMBERSHIP IN AN OWNERS' ASSOCIATION
                                                     (NOT FOR USE WITH CONDOMINIUMS)
                           ADDENDUM TO CONTRACT CONCERNING THE PROPERTY AT
  Lot A-9 Park St. Port O'Connor
                                                                  (Street Address and City}


                                                              (Name of Owners' Association)

  A.     SUBDIVISION INFORMATION: "Subdivision Information" means: (i) the restrictions applying to the subdivision, (ii)
        the bylaws and rules of the Owners' Association, and (iii) a resale certificate, all of which were provided by the
        Owners' Association in compliance with Section 207.003 of the Texas Property Code no more than three months
        before the date of their delivery to Buyer.
        .{gheck only one box):
        1:&:1 1. Within _ __.,___ _ .days after the effective date of the contract, Seller shall at Seller's expense deliver
                 the Subdivision Information to Buyer. If Buyer does not receive the Subdivision Information, Buyer may
                 terminate the contract at any time prior to closing and the earnest money will be refunded to Buyer. If Seller
                 delivers the Subdivision Information, Buyer may terminate the contract for any reason within 7 days after
                 Buyer receives the Subdivision Information or prior to closing, whichever first occurs, and the earnest
                 money will be refunded to Buyer.
        0     2. Buyer has received and approved the Subdivision Information before signing the contract.
        0     3. Buyer does not require delivery of the Subdivision Information.

        If Seller becomes aware of any material changes in the Subdivision Information, Seller shall immediately give
        notice to Buyer. Buyer may terminate the contract prior to closing by giving written notice to Seller if: (i) any of the
        Subdivision Information provided was not true; or (ii) any material adverse change in the Subdivision Information
        occurs prior to closing, and t~e earnest money will be refunded to Buyer.

  B.    TRANSFER FEES: Buyer shall pay any Owners' Association transfer fee not to exceed $ ._.N.._/A
                                                                                                    , ..__ _ _ _ __
        and Seller agrees to pay any excess.

  NOTICE TO BUYER REGARDING REPAIRS BY THE OWNERS' ASSOCIATION: The Owners' Association may have
  the sole responsibility to make certain repairs to the Property. If you are concerned about the condition of any part of the
  Property which the Owners' Association is required to repair, you should not sign the contract unless you are satisfied
  that the Owners' Association will make the desired repairs.




  Buyer

       The form of this addendum has been approved by the Texas Real Estate Commission for use only with similarly approved or
       promulgated forms of contracts. Such approval relates to this contract form only. TREC forms are Intended for use only by
       trained real estate licensees. No representation is made as to the legal validity or adequacy of any provision in any specific
       transactions. It is not suitable for complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-
       2188, 1-800-250-8732 or (512) 459-6544 (http://www.trec.state.tx.us) TREC No. 36-3. This form replaces TREC No. 36-2.


                                                                                                                                                       01A
(TAR-1922) 2-9-2004                                                                                                                              Page 1 of 1
ERA Realty Group, Inc. 302 E. Airline, Victoria TX 7790 1
Pbone:361-572·3333             Fax: 361-572-8979              Tom Tucker, Brolcer                                                               Lot A-9 POC.zf
                     Produced wi1h ZlpForm"' by RE FOITTl$Net, LLC 18025 Fifteen Mile Road. Clinton Township, Michigan 48035 www.zjofpnn.corn

                                                                                                                                                         A14
                                                                                                                                                   12-0S-94
                                            PROMULGATED BY TilE TEXAS REAL ESTATE COMMISSION (TREC)
                                                      P.O. BOX 12188, AUSTIN, TX 78711-2188

    ---
    ~                                                          ADDENDUM FOR
                                                           COASTAL AREA PROPERTY


        ADDENDUM TO EARNEST MONEY CONTRACT BETWEEN THE UNDERSIGNED PARTIES
                            CONCERNING THE PROPERTY AT


                                                                    (Location of Property)


            IN ACCORDANCE WITH SECTION 33.135, TEXAS NATURAL RESOURCES CODE, THE FOLLOWING
            NOTICE IS INCLUDED ASPART OF THE CONTRACf:

                                             NOTICE REGARDING COASTAL AREA PROPERTY


             1.        The real property described in and subject to this contract adjoins and shares a common boundary with the
                       tidally influenced submerged lands of the state. The boundary is subject to change and can be determined
                       accurately only by a survey on the ground made by a licensed state land surveyor in accordance with the
                       original grant from the sovereign. The owner of the property descnbed in this contract may gain or lose
                       portions of the tract because of changes in the boundary.

            2.         The seller, transferor, or grantor has no knowledge of any prior fill as it relates to the property descnbed
                       in and subject to this contract except: - - - - -- -- - - - - - - - - -- - - - - -




            3.         State law prohibits the use, encumbrance, construction, or placing of any structure in, on. or over state-
                       owned submerged lands below the applicable tide line, without proper permission.

             4.       Tbe purchaser or grantee is hereby advised to seek the advice of an attorney or other qualified person as
                      to the legal nature and effect of the facts set forth in this notice on the property described in and subject to
                      this contract. Information regarding the location of the applicable tide line as to the property described in
                      and subject to this contract may be obtained from the surveying division of the General Land Office in
                      Austin.




  Buyer J




  Buyer


  This form has been approved by the Texas Real Estate Commission for use with similarly approved or promulgated contract forms. Such approval
  relates to this form only. No representation is made as to the legal validity or adequacy of any provision in any specific transactions. It is not suitable
  for complex transactions. (12-94) TREC No. 33-0.


                                                                                                                                             TREC No. 33-0
(TAR-1915) 12-5-94                                                                                                                             Page 1 of 1
ERA Realty Group, Inc. 302 E. Airline, Victoria TX 77901
Pbone:361-572·3333             Fax: 361-572-8979             Tom Tucker, Broker                                                                Lot A-9 POC.zf
                     Produced with ZlpForm"" by RE FormsNet, UC 18025 Fifteen Mile Road, CW
                                                                                          nton Township, Michigan 48035 www.zlDform.com

                                                                                                                                                         A15
                                                 Approvt.. JY the Texas Real Estate Commission for Vt. .1tary Use

                                           Texas law requires all real estate licensees to give the following information
                                          about brokerage services to prospective buyers, tenants, sellers and landlords.

                                  Information About Brokerage Services
             efore wori<ing with a real estate broker, you should                                   The broker must obtain the written consent of each party to

        B    know that the duties of a broker depend on whom the
             broker represents. If you are a prospective seller or
             landlord (owner) or a prospective buyer or tenant
      (buyer), you should know that the broker w~ lists the
                                                                                                    the transaction to act as an intermediary. The written consent
                                                                                                    must state who will pay the broker and, in conspiruous bold
                                                                                                    or underlined print. set forth the broker's obligations as an
                                                                                                    intermediary. The broker is required to treat each party
      property for sale or lease is the owner's agent A broker who                                  honestfy and fairly and to comply with The Texas Real Estate
      acts as a subagent represents the owner in cooperation with                                   License Act A broker who acts as an intermediary in a
      the listing broker. A broker who acts as a buyer's agent                                      transaction:
      represents the buyer. A broker may act as an intermediary                                          (1) shall treat all parties honestly;
      between the parties if the parties consent in writing. A broker                                    (2) may not disclose that the owner will accept a price
      can assist you in locating a property, preparing a contract or                                     less than the asking price unless authorized in writing to
      lease, or obtaining financing without representing you. A                                          do so by the owner;
      broker is obligated by law to treat you honestly.                                                  (3) may not disclose that the buyer will pay a price
                                                                                                         greater than the price submitted in a written offer unless
      IF THE BROKER REPRESENTS THE OWNER:                                                                authorized in writing to do so by the buyer; and
      The broker becomes the owner's agent by entering into an                                           (4) may not disclose any confidential information or any
      agreement with the owner, usually through a written listing                                        information that a party specifically instructs the broker
      agreement. or by agreeing to act as a subagent by accepting                                        in writing not to disclose unless authorized in writing to
      an offer of subagency from the listing broker. A subagent may                                      disclose the information or required to do so by The
      work in a different real estate office. A listing broker or                                        Texas Real Estate License Act or a court order or if the
      subagent can assist the buyer but does not represent the                                           information materially relates to the condition of the
      buyer and must place the interests of the owner first The                                          property.
      buyer should not tell the owner's agent anything the buyer                                    With the parties' consent, a broker acting as an intermediary
      would not want the owner to know because an owner's agent                                     between the parties may appoint a person who is licensed
      must disclose to the owner any material information known                                     under The Texas Real Estate license Act and associated with
      to the agent                                                                                  the broker lo communicate with and carry out instructions of
                                                                                                    one party and another person who is licensed under that Act
      IF THE BROKER REPRESENTS THE BUYER:                .                                          and associated with the broker to communicate with and
      The broker becomes the buyer's agent by entering into an                                      carry out instructions of the other party.
      agreement to represent the buyer, usually through a written
      buyer representation agreement A buyer's agent can assist                                    If you choose to have a broker represent you,
      the owner but does not represent the owner and must place                                    you should enter into a written t~greement with the broker
      the interests of the buyer first. The owner should not tell a                                that clearly establishes the broker's obligations and your
      buyer's agent anything the owner would not wilnt the buyer                                   obligations. The agreement should ~tal<' how llncl by whom
      to know b~cl\use :1 buyer's :1gent must di~do~ to the buyc~r                                 lh<' broker will be paid. You h;M! tht• right to c:hoo~c tht' typ<'
      any material information known to the agent.                                                 of representation, if any, you wish to receive. Your payment
                                                                                                   of a fee to a broker does not necessarily establish that the
      IF THE BROKER ACTS AS AN INTERMEDIARY:                                                       broker represents you. If you have any questions regarding
      A broker may act as an intermediary between the parties if                                   the duties and responsibilities of the broker, you should
      the broker complies with The Texas Real Estate license Act                                   resolve those questions before proceeding.



                Real estate licensee asks that you ac:knowlcdgc receipt of lhis information about brokerage services for the licensee's records.




                                                                                                                                                  Date


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                       rc-g~rclinJ: a
                               rc.11
                                     Rrokl'rs and S.1~ ~re r~~ a~ reg~~~ I~~ ~IS Re;tl.~~te Con;rniss~~
                                        c~t.llc li<"l'll~. you
                                                     shoukJ      cont~c:t
                                                               TRK P.O. Bo•    ~~
                                                                                                                                            ~
                                                                                                                         (l REO.··,; you h.1vc question or
                                                                                           121118, AuS11n. Ttx~~ 7871 1·2188 or 51 2·41>5·3%0.
                                                                                                                                                             compbi~l 1
                                                                                                                                                                     !
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                                                                                                                                           A16
                          ADDENDUM TO
              UNIMPROVED EARNEST MONEY CONTRACT
                             DATED
                            BETWEEN
    ROBERT CARL BEDGOOD, LAURA BEDGOOD AND TOM TUCK, SELLERS
                              AND
                                     J.P.BRYAN,B~


    THE FOLLOWJNG SPECIAL TERMS AND PROVISIONS SHALL APPLY TO AND
CONTROL OVER ANY CONfRARY PORTION S OF THE ATTACHED EARNEST MONEY
CONTRACT:


       1.       Sellers shall convey to the buyer and/or his assignee all of the Surface Estate in and
to that certain tract of land described as being Tract No. A-9 plus adjacent 10 feet out of Tract
A-10 of LA SALLE HOTEL Addition an subdivision in Townsite of Port O' Connor, Calhoun
County, Texas according to the metes and bounds description and plat attached hereto, subject
to subject to any building lines, easements & restrictions to be place on the property by Seller if
the property is dedicated as a subdivision ( copy of restrictions attached) . Seller shall have the
right but not the duty to dedicate the Old La Salle Hotel Site as a subdivision in the future and the
Buyer expressly agrees to ratify said dedication according to the plans and plat as agreed to
between the County of Calhoun and the Seller.

          2.     Neither Seller or Buyer may, without the prior written consent of the other,
disclose to any person the economic terms of this Contract, except to the extent necessary to
fulfill its terms. This covenant shall survive closing.

       3.     Grantor shall execute and deliver a Deed in accordance with the form
attached hereto granting and conveying the Subject Property, and Grantee shall accept the
Deed and restrictions as set out in the attached deed, AS IS, WHERE IS, AND WITH ALL
FAULTS, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES
WHATSOF;VER (EXCEPT AS TO Tn'LE AS HEREIN SET FORTH), EXPRESS OR
IMPLIED, WRITfEN OR ORAL, IT BEING THE INTENTION OF GRANTOR AND
GRANTEE TO EXPRESSLY NEGATE AND EXCLUDE ALL REPRESENTATIONS
AND WARRANTIES (EXCEPT THE WARRANTY OF TITLE EXPRESSLY SET
FORTH HEREIN), INCLUJ)ING, BUT NOT LIMITED TO (i) ANY REPRESENTATION
OR WARRANTY A~ TQ ~ CQNDffiON OF THE SUBJECT PROPERTY,
INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO SUITABIIJ1Y
FOR HA!JITATION, MERCHANT~ILITY OR FITNESS FOR A PARTICUI.AR
PURPOSE; (ii) THE SOIL CONDffiONS, DRAINAGE, FITNESS OR SUITABILITY OF
WATI;R WE;LL AND EQUIP~NT OR OTHER CONDIDONS EXISTING AT THE
SUBJECT PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE,
DEVELOPMENT POTENTIAL OR OTHERWISE; (iii) QUANTITY, QUALITY,
VALUE OR CONDIDON; (iv) COMPLIANCE WITH ANY LAW, ORDINANCE,
COUNTY OR CITY CODE; (v) ALL OTHER WARRANTIES AND




                                                                                                  A17
REPRESENTATIONS WHATSOEVER, EXCEPT THE WARRANTY OF TITLE
EXPRESSLY SET FORm HEREIN.

        4.    Seller as advised and Buyer acknowledges being advised that there has been past
and present Oil, Gas and Other Minerals Development on the property and has had pipelines
crossing the property. Sellers make not warrants as to and Buyer accepts the property subject to
any violations of The Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, ("CERCLA") as amended by the Superfund Amendments and Reauthorization Act
(SARA), 42 U . S. C. § 9601 or location of any abandoned pipelines.
        The grantor gives no warranty against and grantee shall accept the property subject to any
wetlands problems any violations of The Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, ("CERCLA") as amended by the Superfund
Amendments and Reauthorization Act (SARA), 42 U. S. C. § 9601, any cost for clean up of
hazardous waste, and any common law or statutory liability to third parties due to any hazardous
waste that was brought onto, stored or placed upon the property prior to grantee acquiring the
property. Grantee shall assume reponstbility for any environmental problems that may arise in the
future or be associated with the property.

        5. The grantor gives the grantee notice that they should do an Environmental
Assessment as to Threatened or Endangered Species and Wetlands Addendum at their expense
but this contract is not conditioned upon the results of said Environmental Assessment,
Threatened or Endangered Species and Wetlands Reports. Grantor gives no warranty against and
grantee shall accept the property subject to any Environmental, Threatened or Endangered
Species and Wetlands problems.

BUYERS:




                                                                                                     A18
