                                                                      1
                                                                FILED IN
                                                        4th COURT OF APPEALS
                                                            SAN ANTONIO, TX
                                                          3:30 pm, Nov 04, 2015
 1                         REPORTER'S RECORD                KEITH E. HOTTLE
                             VOLUME 1 OF 1              CLERK OF THE COURT
 2                TRIAL COURT CAUSE NO. 2014-CI-15954

 3

 4   JOHN SHULL                   ) IN THE DISTRICT COURT
                                  )
 5                  Plaintiff(s), )
                                  )
 6   VS.                          ) BEXAR    COUNTY,  TEXAS
                                  )
 7   WESTOVER CROSSING (SA)       )
     HOMEOWNERS ASSOCIATION INC., )
 8   SPECTRUM MANAGEMENT, LLP,    )
     AND ATTORNEY BUCK (DEVIN)    )
 9   BENSON                       )
                                  )
10                  Defendant(s). ) 285TH JUDICIAL DISTRICT

11

12                **********************************
                       HEARING OCTOBER 5, 2015
13                **********************************

14

15
16                    On the 5TH day of OCTOBER, 2015 the

17   following proceedings came on to be heard in the
18   above-entitled and numbered cause before the Honorable

19   Karen Pozza, Judge of the 407th District Court of Bexar

20   County, Texas:
21                    Proceedings reported by Machine

22   Shorthand.

23
24

25

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
                                                     2



 1               A P P E A R A N C E S
 2   MR. JOHN SHULL
     APPEARING PRO SE
 3

 4
 5   MR. BRIAN D. HENSLEY
     APPEARING FOR WESTOVER CROSSING HOA, INC.
 6   SPECTRUM ASSOC. MGMT.

 7
 8   MR. SCOTT NOEL
     APPEARING FOR DEVIN "BUCK" BENSON
 9
10

11

12
13

14

15
16

17
18

19

20
21

22

23
24

25

       TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
           407TH DISTRICT COURT (210) 335-2895
                                                                 3



 1                            INDEX
 2                                                        PAGE

 3   CAPTION -----------------------------------------      1

 4   APPEARANCES -------------------------------------      2
 5   INDEX -------------------------------------------      3

 6   PROCEEDINGS -------------------------------------      4

 7   REPORTER'S CERTIFICATE --------------------------    46
 8

 9
10

11

12
13

14

15
16

17
18

19

20
21

22

23
24

25

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
                                                                     4



 1                     THE COURT:    2014-CI-15954, Shull versus
 2   Westover.     We have a summary judgment this morning --

 3   three summary judgments?

 4                     MR. NOEL:    Good morning, Your Honor.
 5                     THE COURT:    And a motion for continuance,

 6   again, I think?

 7                     MR. SHULL:     Yes, Your Honor.   I have a
 8   motion for discovery continuance.

 9                     THE COURT:    Okay.   You can go ahead with
10   that motion first.

11                     MR. SHULL:    Your Honor, in the last

12   hearing you had reviewed some of the documents and so
13   forth.   That was in my first thing for discovery

14   continuance.     And I stressed the fact that there was an

15   existing order from Judge Michael Mery that basically
16   said that once the inspection of the records have been

17   done under discovery, then the summary judgment is
18   considered.     You ruled, and I asked for 30 days, and I

19   believe you gave me 17 days to today.        And I'm not sure

20   in the hearing if there was a condition on the discovery
21   aspect, but the other parties have not provided any

22   additional information since that.        And the information

23   that I'm requesting are records that have been required
24   by the Property Code to be retained, and contained in

25   those records are records that are essential for my

              TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                  407TH DISTRICT COURT (210) 335-2895
                                                                     5



 1   ability to defend against the summary judgment.          For
 2   instance, the account records.    The Defendant

 3   Homeowner's Association has come up with some records in

 4   their exhibit for -- of a filing on 28 August, which was
 5   not contained in their database that they had

 6   previously -- that they had furnished to me.       So what we

 7   have is we have contradictory records that have been
 8   produced, we have a significant amount of records that

 9   haven't been produced yet.   None of this delay is caused
10   by me, because my request has been very clear from the

11   very beginning, as to what I needed.     Their summary

12   judgment is basically -- one of them has to deal with
13   whether attorney Benson was involved or not.       The

14   attorney/client privilege has been invoked.       There are

15   records, however, that should still be available to me,
16   and those are financial obligations that show up on the

17   budget line.   Those have not been produced.      So
18   therefore, basically the records are non-auditable, is

19   the way they were provided to me.     Secondly, the

20   Homeowner's Association has put a, what I claim as a
21   fraudulent lien on my property.     Well, that requires

22   certain things by law to be accomplished.      None of those

23   documents that are required by law have been provided to
24   me.   Certified notices of the existence of the lien, for

25   instance, have never been produced.     I believe in all

             TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                 407TH DISTRICT COURT (210) 335-2895
                                                                     6



 1   fairness that since this delay has not been incumbent
 2   upon anything I've done or not done, that this Court

 3   will grant a continuance until the Defendant meets the

 4   requirement of the order to give me the documents that
 5   I've requested and are provided for by law.     That way I

 6   can have the ability to properly defend myself against

 7   the summary judgments that are now being presented to
 8   this Court.

 9                     I've included in my pleading is an
10   Exhibit 2, which basically says that the Defendant

11   Homeowner's Association admits, and has indicated that

12   they wouldn't admit this in Court, that the records have
13   not been provided to me in total, as requested.        Again,

14   I stress these records are mandated by law, so they

15   should have been in existence a long time ago.     But for
16   some reason, they are not there.     And that's the crux of

17   my case.   My case is against all these Defendants, for
18   mismanagement, for unauditable actions, and the

19   fraudulent lien is just one example of that.     And so the

20   case before you is the operation and conduct of daily
21   affairs by all the Defendants.     Defendant Benson is

22   involved, because he had a contract.     It obligated him

23   to do certain things.     That contract was limited to just
24   certain duties.     Attorney Benson -- Defendant Benson,

25   however, did duties outside the scope of his contract.

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   Those documents that I'm asking to be produced should
 2   illustrate or substantiate that.      I'm at a significant

 3   disadvantage when I'm not given records that are

 4   required by law to be retained; therefore, I ask that
 5   this Court extend the period of discovery until the

 6   client -- I mean until the Defendant, whose records I'm

 7   seeking, certifies to this Court that all the records
 8   have been provided.     Now, that serves two purposes.    If

 9   he certifies that, then that means he's got to live with
10   what he's given us -- given me, the Court and so forth,

11   so that in future pleadings he can't come up with

12   another document.     This has happened in the past.
13                    There are also questions on the documents

14   that he's provided to date, in the sense that they are

15   nonsecurable, they are duplicable, with different dates.
16   There are records that conflict with each other and so

17   forth.   That's why these records are imperative for both
18   this Court and myself to properly proceed.      And

19   therefore, I request that the Court grant a continuance

20   to allow me to receive these records, so that I can
21   incorporate them in my defense, which is the purpose of

22   discovery.

23                    THE COURT:    Thank you.
24                    MR. SHULL:    Thank you.

25                    MR. NOEL:    Good morning, Your Honor.

              TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                  407TH DISTRICT COURT (210) 335-2895
                                                                    8



 1                   THE COURT:     Good morning.
 2                   MR. NOEL:      Scott Noel here with

 3   Plunkett & Griesenbeck, on behalf of Defendant attorney

 4   Buck Benson.    If the Court will recall, although I
 5   imagine she's heard a few things since then, on

 6   September 17, Mr. Shull, we were all here in your

 7   courtroom that morning.      Mr. Shull presented another
 8   motion to -- a previous motion to extend discovery on

 9   the morning we filed our previous motion for summary
10   judgment settings.   Mr. Shull has done that again here

11   this morning.   So he filed this motion to extend

12   discovery period, knowing full well that this Court back
13   on September 17 said I'm resetting this till October 5,

14   with no further extensions granted.      So now Mr. Shull

15   stands here before you in defiance of your order, and
16   files another motion for continuance.

17                   THE COURT:     Well, just mostly understood
18   if there are in fact outstanding discovery requests or

19   not?

20                   MR. NOEL:    This is the first we heard of
21   it, Your Honor, with this.

22                   THE COURT:     Well, there's been discovery

23   pending for some time.      I just want to -- assurance that
24   everything has been provided.      That's the only question.

25                   MR. NOEL:    And on behalf of Mr. Benson,

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
                                                                    9



 1   we can make that representation to the Court.
 2                    MR. NOEL:   Your Honor, Brian Hensley on

 3   behalf of Westover Crossing HOA, as well as Spectrum.

 4   This discovery dispute dates back to the spring, and
 5   there was a hearing based on a motion to compel filed by

 6   Mr. Shull before Judge Mery, in May of this year.      Prior

 7   to that hearing, myself and Mr. Shull reached an
 8   agreement, as it related to discovery requests he had,

 9   to my client.     That agreement, Your Honor, was that the
10   HOA would make available to Mr. Shull the books and

11   records of the Homeowner's Association, excluding

12   attorney/client privilege information and accounting
13   information of other members of the association.      That's

14   exactly what we have done.      Mr. Shull has subsequently

15   come back and complained that he believes things are
16   missing.     We've asked him to identify specifically what

17   he believes is missing.      As far as I know, it is not
18   this motion either.     He is not put pen to paper on that.

19   But what I can represent this Court is, is that we

20   produced all the books and records, saving those two
21   exceptions, we've been able to identify on behalf of the

22   association.     And those are made available to Mr. Shull

23   in August.     There was a supplemental production made in
24   September 14th, I believe it was.      We've had, since the

25   last hearing when the Court reset us for today, my

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   associate and I had another very lengthy conversation
 2   with Mr. Shull discussing discovery matters, among one,

 3   and again we represented to Mr. Shull that we do not

 4   have any other documents to produce.       We are not aware
 5   of any other production to be made available.       That's

 6   where we stand, Your Honor.

 7                  THE COURT:     Thank you.
 8                  MR. NOEL:    May I add one other thing,

 9   Your Honor?   Is that his motion to extend does not
10   comply with the continuance requirements of 251 and 252.

11   One, it's not verified; two, it is deficient, what it

12   seeks and how that might be impactful today.       And he
13   also set his motion for summary judgment today, which

14   would he have filed his motion for partial summary

15   judgment, there is a statement with affirmative support
16   with his signature on it, that says he didn't need any

17   discovery to even prove his case for fraudulent lien.
18   So here we are again, Your Honor, we're rehashing

19   something, he is trying to look behind Judge Mery's

20   order, Judge Mery entered an order September 16 denying
21   his motion to compel.   So now he is trying to go behind

22   Judge Mery's ruling just a few weeks ago, your ruling

23   from the date following the 17th, and stand before this
24   Court saying, he doesn't have -- he doesn't have the

25   records.   Well, he is specific, and therefore, he is

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   wasting a lot of time.
 2                    MR. SHULL:   Your Honor?

 3                    THE COURT:   Anything else on the

 4   continuance?
 5                    MR. SHULL:   Yes, Your Honor.   On that

 6   hearing he is referring to, Judge Mery did not even

 7   consider the order.    He actually told me to do it
 8   otherwise, because he said procedurally, I have not met

 9   the requirement to confer with the two other Defendants,
10   so therefore, he wouldn't consider the motion to compel.

11   And that's why it was denied.     I have the Court hearings

12   here, if you would like the transcript, it shows that.
13   The other thing is the Defendant Homeowner's Association

14   has said that I have not identified records.      He is the

15   one that proposed to the Court that they would give me
16   all the records, per the Property Code, with the

17   exception of the attorney/client exemption.      They have
18   not done this.    I have attached an e-mail which

19   specifies what those records are, and that's part of

20   what they call the Records Retention Policy of the Code,
21   which they have to comply with anyway.      So if he is

22   basically admitting to the Court that if those records

23   are not available, then basically they violated the
24   Property Code, which is the crux of this case.       This

25   case is about mismanagment.     What is happening is they

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   are putting the responsibility on me, the Plaintiff, to
 2   make sure that they've done what they are supposed to

 3   do.   All I'm asking that the discovery go through.     He

 4   did also decline to make a statement to the effect that
 5   he just gave the Court, that you know, that the records

 6   were complete.     He told me that basically he would come

 7   to the Court and tell them that the discovery process
 8   was still going on, that they were still looking for

 9   things.     And so acting on that, I went ahead and I put
10   this continuance in.     As far as the Plaintiff's and the

11   other Defendant's note on my summary judgment pleading,

12   that was a procedural thing that I put it on, but this
13   statement that I didn't have enough and didn't do this

14   and didn't do that, that's something that may have

15   happened almost a year ago.     I filed that petition, I
16   believe, nine months ago, and basically I have not done

17   anything with that pleading for summary -- partial
18   summary judgment, and I do emphasize the word partial,

19   Your Honor, because partial means it is dealing with

20   only part of the lawsuit before you.     The summary
21   judgments that are being presented to you are allegedly

22   against the entire lawsuit, and limit themselves to the

23   fraudulent lien.     Bottom line, Your Honor, I need that
24   discovery, I believe I'm provided for that by law, and

25   regardless of what happened before, we have still

               TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                   407TH DISTRICT COURT (210) 335-2895
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 1   outstanding documents that are mandated by law, which
 2   will provide me documents to defend myself properly

 3   against the summary judgments that they now seek.

 4                  THE COURT:     Okay.   The motion for
 5   continuance is denied.     So we have three summary

 6   judgments, or two pending?

 7                  MR. NOEL:      We have three, Your Honor.
 8   We have the Plaintiff's partial motion for summary

 9   judgment to support his alleged fraudulent lien.       We
10   have, on behalf of Mr. Benson, a no evidence and

11   traditional summary judgment on all of the cause of

12   actions asserted to Mr. Benson.
13                  MR. HENSLEY:     And on behalf of Westover

14   Crossing HOA, as well as Spectrum Association

15   Management, we have both a traditional and no evidence
16   summary judgment, addressing all of Mr. Shull's claims.

17                  THE COURT:     Okay.   So in your arguments
18   it is most useful to me if you just point out in

19   particular what case law you think I should study or

20   what parts of your motion are, you know, salient, and I
21   will read through all of it and study the case law and

22   give you a ruling probably no later than tomorrow, for

23   sure the absolute latest I would give it to you is
24   Monday of next week.     So also, if you have draft orders

25   to leave with the Court, that's helpful, as well.       So if

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
                                                                   14



 1   you just briefly let -- point me to what you want me to
 2   look at, then I will be happy to take it under

 3   advisement.    So let's see, who wants to go first?

 4                    MR. NOEL:    I will be happy to start, Your
 5   Honor.

 6                    THE COURT:    Okay.   Yes, sir?

 7                    MR. NOEL:    So on behalf of Mr. Benson, --
 8                    THE REPORTER:    Sir, could you move the

 9   microphone closer to you?
10                    MR. NOEL:    On behalf of Mr. Benson, Your

11   Honor, this is a traditional and no evidence motion for

12   summary judgment.    We also have asserted objections and
13   we have proposed orders, and so the Court can go through

14   and review the objections, --

15                    THE COURT:    Okay.
16                    MR. NOEL:    -- the evidence that's

17   attached, in response to Mr. Shull.
18                    THE COURT:    Do you have draft orders for

19   all of that that you are going to leave with the Court?

20                    MR. NOEL:    Yes, Your Honor, I do.
21                    THE COURT:    Thank you.

22                    MR. NOEL:    So the crux of the case

23   against Mr. Benson filed by Mr. Shull, is that somehow
24   Mr. Benson participated in drafting a fraudulent lien

25   that Mr. Shull claims was filed against his property in

              TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                  407TH DISTRICT COURT (210) 335-2895
                                                                   15



 1   2014, within the -- He filed his second amended petition
 2   just within the last -- within the last week on

 3   September 28th, claiming that there is a 2009 lien,

 4   also, Your Honor, that was apparently fraudulently
 5   prepared by Mr. Benson.     But it was subsequently

 6   released in 2010, and satisfied.      And so Your Honor, our

 7   motion for summary judgment, our first amended motion
 8   for summary judgment applies to both of those liens.      So

 9   what is the most important part of this, Your Honor,
10   there is no evidence before this Court that Mr. Benson

11   at all participated in drafting, preparing or filing the

12   summary judgment.   And in fact, Exhibit C to our motion
13   for summary judgment is the invoice from a firm Holt and

14   Young, out of Houston that actually prepared the --

15                  THE COURT:     Okay.   And I can review your
16   motions and pleadings online, but it is actually quite

17   difficult.   We don't have really a great system.     So if
18   you happen to have extra copies to leave with the Court,

19   that would be very helpful.

20                  MR. NOEL:      I do, Your Honor.   May I
21   approach?

22                  THE COURT:      Yes.   Thank you, thank you.

23                  MR. NOEL:    So Your Honor, tab one is our
24   motion for summary judgment, and towards the end of it

25   -- and I'm happy to flip through it -- I got an extra

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
                                                                       16



 1   slip copy of the actual invoice itself, but Holt and
 2   Young, a firm out of Houston, actually prepared -- May I

 3   approach, Your Honor?

 4                  THE COURT:     Yes, sir.     Thank you.
 5                  MR. NOEL:      And here is an extra copy for

 6   Mr. Shull, as well.

 7                  THE COURT:     Thank you.
 8                  MR. NOEL:      The affidavit of Holt and --

 9   The invoice from Holt and Young clearly indicates that
10   it prepared the lien on behalf of Westover.        And then it

11   proceeded to cause to have that filed.        The liability of

12   Mr. Shull seeks to impose upon Mr. Benson, is based on
13   five different causes of action.     One is fraudulent

14   lien; two, breach of fiduciary duty; three, constructive

15   fraud; four, common law fraud, and five, civil
16   conspiracy to file a fraudulent lien.        As they

17   indicated, Your Honor, there is no evidence to indicate
18   to support Mr. Shull's claim that Mr. Benson at all

19   prepared that lien.     And in fact, that invoice has been

20   in Mr. Shull's possession for quite sometime.          And that
21   dovetails into our motion for sanctions that I will get

22   into in just a moment.

23                  The causes of action against Mr. Benson
24   are wholly without merit, baseless.        Mr. Shull knew at

25   the time that he filed this suit, Mr. Benson didn't

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   participate in the drafting of the lien.     He had
 2   discussions with Mr. Benson's partner, Elliott

 3   Cappuccio, in which Mr. Benson -- excuse me, sorry, Mr.

 4   Shull, acknowledged that he was willing to nonsuit this
 5   case, provided Mr. Benson sign an order confessing that

 6   the lien was fraudulent.     He used this litigation for

 7   improper purpose.     So then Mr. Benson was forced to
 8   retain our law offices to defend him in this case.        And

 9   there's been voluminous activity, and we are coupled
10   with our motion for summary judgment and motion for

11   sanctions.     We provided the Court a supplemental

12   affidavit of those fees to date, total well over $55,000
13   in fees and expenses.      And normally, Your Honor, these

14   motions for sanctions wouldn't be warranted; however,

15   this case is fairly unique.     The -- Mr. Shull knew back,
16   right after he filed this suit, that he didn't have a

17   claim against Mr. Benson.     And but for Mr. Benson not
18   agreeing to a statement acknowledging that the lien was

19   fraudulent, Mr. Shull was agreeing to nonsuit Mr. Benson

20   well before he even retained our office.     So he knew
21   back then he is maintaining this suit for improper

22   purpose.     Again this summer, we sent an offer over to

23   Mr. Shull, asking him to dismiss the suit, and these are
24   attached to our copies of our motions for sanctions,

25   indicating our willingness to -- if he would drop the

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   suit, that that would be a full release of all the
 2   parties.     Again he refused.     He has sent e-mails to us

 3   saying treat me as an equal, treat me as an equal, I

 4   earned it.     But Your Honor, it is now we are here before
 5   the Court, and it is time for Mr. Shull to be held

 6   accountable for his actions.

 7                     The Texas Supreme Court earlier this
 8   summer issued an opinion Canty Hanger versus Bird

 9   (phonetic).     I've got an extra copy for the Court, if
10   you would      like --

11                     THE COURT:     Yes, sir.   Thank you.

12                     MR. NOEL:    And it's cited.    And this case
13   is important, Your Honor, from a couple of regards,

14   because it speaks to an attorney's duty to a nonparty.

15   Mr. Shull alleged that there is some sort of duty or
16   breach of fiduciary duty between Mr. Benson and himself,

17   and it is simply not true.        There is no duty between an
18   attorney and a nonparty, whether that's in a

19   transactional matter or litigation matter.         And so this

20   did not rise to a litigation matter until the adversary
21   proceeding was filed, but it was adversarial during the

22   course of the dealings between Mr. Benson, who is

23   representing Westover HOA, against Mr. Shull.         And as
24   the Court clearly points out, there is no duty owed and

25   if Mr. Shull wanted to go seek representation, he could

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   do so.     And, in fact, he did, Your Honor, but for some
 2   reason he either fired his counsel or his counsel fired

 3   him.     We don't know specific, but he is here today pro

 4   se, Your Honor.     So and just because Mr. Shull wants to
 5   try and characterize Mr. Benson's actions as being

 6   fraudulent in some sort of regard, doesn't take it

 7   outside the attorney's role.      Mr. Benson's skill,
 8   expertise and professionalism is what he used in

 9   representing the HOA.     And in this case, Your Honor, the
10   very act Mr. Shull complains about, Mr. Benson didn't

11   even do.     It was Holt and Young that prepared the lien.

12   So it is our position, Your Honor, that this entire case
13   is baseless and without merit.      He's used this for

14   improper purpose to try to get an advantage over the

15   HOA, and so we would ask, Your Honor, one, that the
16   Court grant our motion for no evidence summary judgment,

17   and traditional summary judgment, and two, issue
18   sanctions in the amount of $55,000 against Mr. Shull,

19   because of his frivolous pursuit of an action against

20   Mr. Benson.
21                     THE COURT:   Yes, sir, Mr. Shull?

22                     MR. SHULL:   Your Honor, as we know, the

23   standard for review of the summary judgment is the
24   nonmovant's evidence are true, indulges every reasonable

25   inference in favor of the nonmovant, and resolves all

               TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                   407TH DISTRICT COURT (210) 335-2895
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 1   doubts in favor of the nonmilitant.    That's Providence
 2   Life and First Union cases.   I have that quoted on page

 3   four of my responsive pleading.   Basically what has

 4   happened, Your Honor, is I sued both attorney Benson and
 5   the Homeowner's Association for mismanagement and

 6   problems with accounts and everything else, plus

 7   fraudulent lien.   Now there exists, and this is already
 8   in proof in the Court record, a contract between the

 9   firm that attorney Benson works for, and the Homeowner's
10   Association, it is the exclusive and sole contract that

11   has been provided under discovery to date, that

12   relies -- that covers the period in which these two
13   liens were issued against my property.     It says in that

14   contract that basically for a fee of $250, Mr.

15   Benson's -- attorney Benson's firm would execute liens
16   in favor of the homeowner's association.     They had the

17   authority and this was confirmed in the 11 May
18   transcript of the hearing for discovery before Judge

19   Mery, that he was the sole guy, attorney Benson was the

20   person, that handled liens.   He was asked under
21   discovery if he knew about liens, he said no.      But then

22   he turned right around and said that Mr. Shull, i.e.,

23   was not treated properly in discovery.     All this I have
24   in my pleading, responsive pleading.     His contract

25   limits attorney Benson to lien actions.     Attorney

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   Benson got involved in a lot -- several other
 2   significant issues, one of which is on records

 3   accessibility.   Records were requested for liens as far

 4   back as a year ago, and on four occasions, both the HOA
 5   and I believe twice by attorney Benson, denied the

 6   existence of any type of liens against my property.

 7   This is verified here, two enclosures that I have that
 8   I've inserted into the Court, before showing the

 9   discovery responses that were given prior to the
10   initiation of this suit.    This suit was sued because of

11   the fact that things were happening and they weren't

12   doing anything about.    So therefore, records were one of
13   the things outside his contractual scope.     The other

14   thing that was outside his contractual scope was that he

15   apparently, I was told now, and they basically
16   challenged my affidavit, but basically he attended

17   annual meetings, and as a result he was also -- certain
18   problems were brought to his attention.     One was

19   stalking charges by the Board President, against me,

20   both in a public hearing and a private hearing.       He
21   actually had telephonic conversations during that

22   meeting, discussing this.    So in other words, he got

23   involved in actions way beyond the scope of his
24   attorney/client relationship, per a contract; therefore,

25   he has no privilege.    He also, therefore, can't claim

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 1   that he was representing the HOA because he didn't have
 2   a mandate to do so.    As we know, a contract is a

 3   limitation.    So that's in reference to his contract.

 4   Now, getting down to the lien portion, we know that he
 5   had the responsibility and the authority per contract.

 6   We know he had the opportunity because he was there and

 7   he was the guy.    We know that, and, in fact, in the
 8   court transcript, the Court asks, the sole contract that

 9   governs the relationship between the parties, attorney
10   Griesenbeck answered, that's my understanding, he, being

11   attorney Benson.    The other defendant's response in

12   discovery was the fact that Pullen -- Cappuccio, Pullen
13   and Benson agreed to provide legal services in condition

14   -- connection with the general state court collection

15   and litigation matters involving property owner
16   assessments and liens against real property, in and

17   around San Antonio, Texas.     There is nothing else.
18   That's it.    That's what he was limited to do.     The

19   records will show that he dealt with record production

20   in violation of the covenants of the Homeowner's
21   Association, that it was in violation of the Property

22   Code.   He then went on to say, Mr. Benson in the record

23   under an affidavit, that I have never had any meeting or
24   discussion with the plaintiff outside my duties as legal

25   representative for Westover.     Again, the legal

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 1   representation is limited to his contract.        On the
 2   fraudulent lien, like I said, he had both the

 3   responsibility and the accountability.      He also had the

 4   motive, and he was also -- they mandated by inference,
 5   to be in charge of knowing what was going on in all lien

 6   processes.     These are liens that were put in 2009, that

 7   they never acknowledged existed until I brought it to
 8   their attention in May of last year.      The lien for the

 9   May 2013 lien, was put in right during the middle of
10   negotiations between attorney Benson and my attorney.

11   There are letters on file that show that there is

12   correspondence going on, which is definitely a bad faith
13   act.   I mean, the obligation for which the lien was

14   originated, not only was illegal on its face, because it

15   violated the Property Code, but attorney Benson allowed
16   and apparently had the approval, final approval

17   authority, to put all liens against property to have the
18   lien placed while he was talking to my attorney, that

19   debt for which that -- excuse me, that lien originated,

20   was later indicated --
21                     THE COURT:   Can you get Mr. Shull some

22   water, please?

23                     MR. SHULL:   There was no debt -- there
24   was no obligation for which the lien could have been

25   issued.     It was resolved, it was zeroed out.     That's --

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 1   And he was responsible for that.     Then on top of that he
 2   was responsible for the records of this.     And there is

 3   correspondence and e-mail from the Homeowner's

 4   Association, saying that Mr. Benson was the one that we
 5   go to for records management.

 6                  So now he comes to this court and he says

 7   wait a minute, I got proof that I didn't do anything.
 8   His only proof is his affidavit, and you and I both know

 9   that affidavits are self serving and are questionable,
10   so that really doesn't mean too much.     So now he comes

11   up with an invoice, which was explained in court, has

12   nothing to do with the lien itself.     All it says is that
13   somebody prepared the lien.     Now, interestingly enough,

14   you will notice on that document, Your Honor, that it is

15   for $60 for nine liens.   That's less than $7.00 a piece.
16   According to his own contract, they charge 250.     This is

17   why that discovery was so essential that I needed to
18   attain those financial records.     Anyway, this is from a

19   lawfirm in Houston, as he said, has no relationship to

20   anybody here, does not specifically state who did what.
21   They don't even know who Jennifer Nut (phonetic) was,

22   who was the clerk -- I mean, the person that went down

23   and docketed in the court.    So what you have here is
24   nobody knows what happened, but nobody was responsible.

25   Now, I'm sure this lien didn't create itself, and I'm

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 1   sure that if attorney Benson did not actually sign the
 2   lien or actually present it in court, which is not what

 3   I'm saying, telling this Court, I'm telling this Court

 4   that he had a sole responsibility for all liens, whether
 5   he did it or somebody else did it, and he was

 6   accountable.   I mean, if you are the driver of the car,

 7   you are responsible for the passenger and everybody
 8   else.   If you crash, just because maybe your passenger

 9   caused the accident, the driver doesn't get off.      The
10   person that is designated by contract is responsible,

11   and he had the authority to approve and disapprove.         On

12   top of this, the records that showed that this happened
13   are mysteriously missing.   Now, there are records for

14   instance on the minutes of the HOA Board, which are

15   supposed to indicate the violations that are being
16   considered for lien processing.   Where are they?     In

17   other words, these are documents that were supposed to
18   have been produced by discovery, and are mandated not

19   just because Mr. Shull is making it up, they are

20   mandated so that they can audit what they did and why
21   they did it.   So I guess, Your Honor, it boils down to

22   the fact that attorney Benson comes here and says, well,

23   I don't have anything to do with this, because I say so.
24   And here is an invoice that says, yep.   Well, Your

25   Honor, the rules for summary judgments say that the

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 1   nonmovant should be given deference.     I'm the only one
 2   that's got evidence in front of this Court that's

 3   directly related to the charge that's being made.       He

 4   doesn't have anything directly related.     I mean, I come
 5   up with a telephone directory.     An interesting thing

 6   about Holt and Young is they also have a website which

 7   basically talks about how you are supposed to process
 8   fraudulent liens, and it dictates some of the things

 9   that they haven't done.     I'm sorry, Your Honor, I don't
10   have a copy to present to the Court on that one, though.

11   He also was -- Well, now going -- that's on the summary

12   judgment thing.     I'm the only one that has evidence,
13   before the Court.     Secondly, on the sanctions, the

14   Defendant Benson has implied that he's had to do an

15   awful lot of work here and he's offered me a nonsuit
16   thing.   I believe the Court record is extremely clear.

17   In March of this year, we had what we call a declaratory
18   judgment session, where I asked the Court to basically

19   rule as fact, that their attorney Cappuccio had misled

20   me and told me that the Rules of Procedure of nonsuit
21   could not be included in a motion to the Court.     And I

22   then presented a page extract of O'Connor and sent it to

23   him, and said that that's wrong, that's false.     What I
24   was asking him to do is basically say that if I

25   nonsuited this attorney, that therefore, I just wanted

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 1   him to say that whatever he did was on direction of the
 2   Homeowner's Association, whether it was the lien or

 3   others, but in this particular case I may have used the

 4   word lien, fraudulent lien, to which he said no, he
 5   can't do that.     And procedurally, and the question was

 6   on procedures, so therefore, I went to the Court and

 7   asked Judge Saldana to please just rule that basically
 8   this attorney did this.

 9                    Now, at the same time in that declaratory
10   judgment, there were two original petition responses

11   that were on record, so there were two attorneys

12   representing attorney Benson, simultaneously.     So I
13   asked the Court to make a declaration of which one it

14   is.   Well, she ruled against me on the thing, but

15   ultimately that's what happened, because the client, the
16   defendant, resolved that.     That's the reason for that

17   hearing.     The next hearing that we had, significant
18   hearing, was a motion to compel, because I had sent out

19   discovery to them and they had not responded.     The Court

20   mandated time for response had passed, and we were later
21   to be called at the 11 May hearing.      The reason why

22   that happened, Your Honor, is because they had failed to

23   post it on the calendar board.     So they gave me some
24   responses.    Those responses where basically saying that

25   we can't give you anything, we deny everything.      And so

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 1   the Court ordered that they redo the responses,
 2   especially on the admissions and production; so they

 3   did.   And contained in my pleading is the results of

 4   that, in which attorney Benson at the same time says he
 5   has no knowledge of anything, basically states that the

 6   Plaintiff has been mistreated, that there had been

 7   misconduct on the board, and that the governing
 8   documents were not made available.    Now, this is all

 9   stated in the summary judgment response that I have
10   docketed, the second one that you have.    So I guess the

11   bottom line, Your Honor, is as far as the summary

12   judgment -- I mean, as far as the sanctions are
13   concerned, all the delays, the costs of the hearings on

14   the discovery and so forth, have been brought about by

15   the Defendant's blatant ignoring Court rules and
16   procedures and protocol, in good faith.    I'm not sitting

17   here and prolonging this thing, and I also would ask the
18   Defendant earlier in the game to please provide me with

19   some cost information, and that I would do so -- I would

20   also do the same, because I would like to know what my
21   exposure was as this case proceeded, not because I was

22   setting up the predicate that I was going to lose.       But

23   I was just curious what my liabilities were.    I even
24   said that there was -- I believe there is a Federal law

25   that I believe has been violated.    They did not respond.

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 1   In fact, the first time I knew about the cost of this
 2   litigation, was on the 17th of September, when in fact

 3   they revealed to me that their insurance policy had been

 4   paid out, that attorney Benson had to do this and had to
 5   do that and so forth.     My intention is not to

 6   bankrupt -- cost him a lot of money or anything else.

 7   My intention is to get attention given to the conduct
 8   that this case represents, what they did on the lien,

 9   what they did on the meetings, what they did on the
10   records, what they did in the whole thing.     Now, this is

11   all pleaded out in my petition, with details and so

12   forth.    So he comes here and that's when I basically
13   said, yeah, I will agree to a nonsuit, I don't want this

14   to continue, and they said well, we spent too much money

15   now.     So that was -- I said, well, I had to make a
16   conscious decision at that point I think it was $45,000

17   on the 17th of September.     And they make me a settlement
18   offer of 35,000, if I pay, 11,000, I believe it was

19   every quarter, three quarters.     And I basically said

20   well, look, if I'm going to have to pay that much, I
21   might as well go ahead and fight, because your cost of

22   this Court has been brought on more not by my lawsuit,

23   but your actions to date, in frustrating the discovery.
24   And when we first started this -- this case, on that

25   declaratory judgment hearing that I talked about in

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 1   March, they brought five attorneys, at least this is
 2   how they identified themselves to the court hearing.

 3   And they told me, Mr. Shull, you are going to pay for

 4   all of this, so you better nonsuit.     And I'm saying,
 5   wait a minute, we haven't even had a hearing yet and I'm

 6   not exactly sure why you have all these people here, but

 7   no, I don't agree.     They are correct in the record, they
 8   have offered me nonsuit three times.     First time in the

 9   declaratory hearing, second time was -- I believe it was
10   the 3rd of September, when they sent me something asking

11   me to basically nonsuit.     And then when I started

12   learning the value of this, as I didn't know what the
13   costs were involved until the 17th of September, when I

14   knew the enormity of the situation, that's when I

15   agreed.     Your Honor, when they asked me on the 3rd of
16   September about the nonsuit, we already had the motions

17   docketed for the 17th, the summary judgments and so
18   forth.    So I just figured, well, nonsuit, they were

19   already on the docket, so we'll go take care of those

20   and then I will settle, if there is a settlement
21   available.     So that's as far as the sanctions are

22   concerned.     Again, a lot of their costs are related not

23   to the attorney's contract, with the Homeowner's
24   Association.     They are related to everything he did

25   outside said of that scope, and everything he did

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 1   outside of that scope.     And everything he did outside of
 2   that scope, he was exposed.     He had no attorney/client

 3   privilege.     And since this involves a fraudulent lien,

 4   even more so that's what we call the crime fraud
 5   exemption, again in my pleadings I detail that, but that

 6   crime fraud exemption breaks that attorney/client

 7   privilege vale.     The law defines the process of this
 8   lien as being fraudulent, because certain things weren't

 9   done.   They weren't done.    So therefore, that's fraud.
10   Therefore, the vale is broken by the crime fraud

11   exemption.     And it should have been, but apparently I

12   have not been able to properly present that, I guess, to
13   the Court to get them to agree.     So therefore all the

14   attorney records, billings and so forth, have been

15   denied me.     So I guess in the bottom of my argument,
16   Your Honor, they come here with a summary judgment with

17   no evidence.     I'm the only one that's got evidence
18   before the Court, other than their affidavit, and that

19   receipt, which doesn't even apply.     And, in fact, I

20   think they should be sanctioned for frivolous wasting of
21   time on stuff like this.     So therefore, I'm the only

22   movant before, that basically has the justification for

23   the summary judgment.     I've got a contract that says he
24   is supposed to do it, I've got the opportunity to do it,

25   I've got the authority to do it, I've got the fact that

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 1   he took action to hide the records if it wasn't done.
 2   So therefore, the summary judgment should be denied.

 3   And the sanctions, as I explained, are all more result

 4   of their inaction or misaction, or conduct aspects of
 5   both the discovery process and the initial orientation

 6   of the lawsuit, and therefore, should be denied, and I

 7   should be granted sanctions for the -- and the Court,
 8   for the time that was wasted and eaten up in doing this

 9   kind type of frivolous gamesmanship.
10                  THE COURT:     Thank you.   Mr Hensley, your

11   brief comments about what I should study with regard to

12   your motion?
13                  MR. HENSLEY:      Yes, Your Honor.     May I

14   approach?

15                  THE COURT:      Yes, thank you.
16                  MR. HENSLEY:     As the Court directed, it

17   is just a courtesy copy of our motion, along with two
18   proposed orders.

19                  THE COURT:     Great, thank you.

20                  MR. SHULL:     I'm sorry, Your Honor,
21   weren't we considering the summary judgment against the

22   attorney Benson?

23                  THE COURT:     Yeah.   And I'm finished with
24   that, and now I'm moving onto their summary -- Yeah.

25                  MR. SHULL:     Oh, I'm sorry.     Excuse me.

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 1                     MR. HENSLEY:   Your Honor, we too, and
 2   when I say "we," the Homeowner's Association, as well as

 3   Spectrum Association Management, have also filed a

 4   motion for summary judgment, both traditional and no
 5   evidence.     As it relates to the claims against my

 6   clients, there are seven causes of action filed by Mr.

 7   Shull.     There is a violation of Section 12.002 of the
 8   Civil Practice and Remedies Code, fraudulent lien

 9   statute.     There is a negligence claim, there is a common
10   law fraud claim, and a civil conspiracy claim.      Each of

11   those causes of action, Your Honor, requires a finding

12   that a notice of assessment lien filed against Mr.
13   Shull's rental property was fraudulent.      I believe our

14   motion, and I'm not going to get into the details of it,

15   being cognizant of the Court's time, it's pretty well
16   spelled out in our motion, the summary judgment evidence

17   establishes that not only has Mr. Shull not have
18   evidence establishing that as a fraudulent lien that was

19   filed, but in fact it was a valid lien that was filed

20   against his property.     And what the Court will see is
21   that Mr. Shull for whatever reason, failed to pay a

22   series of assessment liens against his rental property,

23   and overtime that failure to pay accrued interest and
24   late fees, all allowed by the Declaration of Restrictive

25   Covenants, governing this association and Mr. Shull's

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 1   property.    Mr. Shull's attorney, former attorney I
 2   should say, in correspondence with defendant, Mr.

 3   Benson, acknowledged that his client failed to pay

 4   assessments, past due assessments.     The Court will see
 5   multiple notices of past due amounts, attached as

 6   summary judgment evidence.    The Court -- I would ask the

 7   Court to take notice on those account statements that
 8   were sent to Mr. Shull.    He's complained that we didn't

 9   provide it to the right address.     The address on those
10   account statements was the identical one to the plea, to

11   the address he has listed on his pleadings in this

12   lawsuit.    Mr. Shull, himself, in communications to Mr.
13   Benson, acknowledged his failure to pay past due

14   assessments.    His argument -- I'm interpreting his

15   argument to be that he disputed some amounts owed and
16   that was his basis for not paying the assessments that

17   he did say was owed.    We cited the provisions in the
18   BCCR, Your Honor, which state very clearly that even if

19   the amounts owed are in dispute, the member has an

20   obligation to pay those amounts.     There was absolutely
21   nothing wrong with the filing of the notice of

22   assessment made against Mr. Shull's property.

23   Furthermore, more recently Mr. Shull has complained
24   about a 2009 notice of assessment against his property.

25   We assert that the statute of limitations have long

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 1   since passed on any cause of action related to that.
 2   That 2009 lien, I believe, the one that he complained

 3   was in August of 2009 and Mr. Shull didn't assert a

 4   cause of action till this year -- I'm sorry, okay --
 5   that's right, the lien was actually filed in August of

 6   2009, there was a satisfaction lien filed February 1st

 7   2010.   Mr. Shull didn't file his cause of action related
 8   to that until, at the earliest, August of this year, but

 9   more than likely, September of this year.   I will
10   correct myself the -- it was the 3rd of August 2009,

11   when that lien was filed.   Your Honor, the other three

12   causes of action Mr. Shull has against my clients are
13   breach of fiduciary duty, a breach of good faith of fair

14   dealing, which is essentially the same thing as above,

15   as well as a constructive fraud claim.   We submit to the
16   Court that each of those claims require a finding that

17   the Defendants, my clients, breached a fiduciary duty to
18   Mr. Shull.   Again, as outlined, more ably in our written

19   motion, is our assertion that the Homeowner's

20   Association, as well as the property management company,
21   owed Mr. Shull no fiduciary duties; therefore, there

22   were no fiduciary duties that should have been breached.

23   There is no formal relationship, and there is no special
24   relationship created out of the contract, the DCCRs that

25   created a fiduciary duty.   We cited case law, Your

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 1   Honor, very similar instance on a case arising out of
 2   Third Court of Appeals in Austin, where it looked at

 3   whether fiduciary duty arose between ACC members,

 4   Architectural Control Committee members and members of
 5   an HOA, and the office of Court of Appeals found that

 6   there was no fiduciary relationship.       We submit that the

 7   same exists in a context of a relationship between my
 8   clients and Mr. Shull.    Absent a fiduciary duty, those

 9   three causes of action, the breach of fiduciary duty,
10   breach of good faith and fair dealing, and constructive

11   fraud claims, all fail as a matter of law, Your Honor.

12   With that we will rest and allow the Court to make its
13   decision, based on the papers submitted.

14                    THE COURT:   Thank you.    Yes, sir?

15                    MR. SHULL:   I think that the Defendant is
16   a little bit confused, so what I would like to do is

17   maybe provide some clarification.     The fraudulent lien
18   thing for which the summary judgment is targeted are two

19   liens, both of which were discovered after the lawsuit

20   was initiated.    Now, we well know it is an established
21   principal of law, that the statute of limitations begins

22   at the time of discovery, not at the time of occurrence.

23   And I, in my pleading to Defendant Benson, I emphasized
24   that I did not respond to this one on this -- this

25   particular summary judgment, because I didn't realize he

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 1   had raised it.     But the discovery for both those liens
 2   was after the lawsuit was initiated.     They are well

 3   aware that both, when these liens were discovered,

 4   because when I discovered them, I brought it to their
 5   attention.   And there is e-mail traffic, there is a

 6   attempt to get a judicial notice to getting

 7   incorporating my basic petition earlier this year, to
 8   which they objected, but I had asked them before I did,

 9   to see if that would be a proper way of doing it.        So
10   that was -- we have now two liens involved in this

11   fraudulent lien.     We have 9 August, 2009, and we have 3

12   May, 2013.   Both of which the Defendants -- all the
13   Defendants were present.     We had the Westover Crossing

14   and we had Spectrum Management.     Both of these liens

15   were denied that they existed on January 2014, as a
16   result of a information request.     In March 2014, they

17   were denied again, as existing.     And so now we find
18   these liens and so we then go to the Property Code and

19   find out what are these guys supposed to do.     And if I

20   may, I spelled those out in my briefing, but -- I mean,
21   in my response, Your Honor, and I'd like to then go

22   through those, if I may.     And you have to remember the

23   concept of clean hands, comes into play here.     In other
24   words, if they are involved in this and they haven't

25   done things they were supposed to do, then they can't

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 1   use their noncompliance as an excuse for not doing
 2   something.     What we have here is I attempted upon --

 3   there are several things that happened with the lien.

 4   They have to have first the creation of an obligation.
 5   Now the Property Code says that that obligation has to

 6   be an assessment for dues owed to the Homeowner's

 7   Association.     It cannot be an amount owed to a third
 8   party.

 9                     THE COURT:   You need to stay near your
10   microphone so the court reporter can get a clean record.

11                     MR. SHULL:   Oh, I'm sorry.

12                     THE COURT:   Thank you.    I mean, you don't
13   have to bend over, just don't wander away.

14                     MR. SHULL:   It has to -- They cannot put

15   a lien for a third party obligation.        Their account
16   record will clearly show that when I started disputing

17   things, it was $61.95 for a mowing charge, third party.
18   That charge got them -- they got that charge up to

19   additional charges and everything else to over $300.         I

20   think it was $395.     Now, while this was happening, we
21   were disputing that charge and the charges that were

22   assessed with it.     That's where the other attorney came

23   in, attorney Chris and attorney Benson.         So it was under
24   negotiation.     In other words, the debt hadn't been

25   determined yet.     Well, what happened was after these

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 1   negotiations, attorney Benson and the Homeowner's
 2   Association agreed that there was no obligation at all.

 3   Well, while this was happening and interestingly enough,

 4   right after the date of the letter that my attorney to
 5   attorney Benson is 31 May, the lien was put on the

 6   property two weeks before that, according to the County

 7   records.     That meant that this was done intentionally,
 8   with I think malice.     And the fact that nobody would

 9   identify it later, even made it worse.     Well, okay, so
10   now we have the problem with the source of the lien is

11   wrong.     Second thing is the Property Code says, and the

12   reason why we have the Property Code provisions in 2009
13   and in 2013, is because of the fact that people were

14   using these liens to encumber people illegitimately,

15   illegally or fraudulently.     And so therefore the
16   Property Code mandated that if you are going to put a

17   lien on the property, you have to send a certified mail.
18   I emphasize, this is explicit in the regulations, in the

19   Code, a certified notice to the party to which the lien

20   is going to be placed.     There is no and's, if's or
21   but's, there is no alternatives, there is no this and no

22   that.    Well, the reason for is that because then the

23   recipient is put on notice that he has certain other
24   legal rights that he can exercise.     He can exercise the

25   collection policy of the Homeowner's Association, which

              TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                  407TH DISTRICT COURT (210) 335-2895
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 1   says that he is supposed to be offered certain ways to
 2   pay.   That never happened.    He's offered what we call an

 3   alternative resolution system.     That never happened.

 4   Because there was no knowledge of the lien.      I never
 5   knew there was a lien, so I couldn't avail myself for

 6   the remedies to solve it.     That was the same thing that

 7   happened in August of 2009.     They claim that their
 8   notice is because it is on our account statement.       There

 9   was never any notice.     Notice puts me on alert that I've
10   got to do something.    Now, that's okay.    So now they

11   have not only -- they created a lien, illegal lien.          Now

12   they ignored the requirements of the regulation.        There
13   has been, and as we know under discovery, up till now,

14   there are no certified notices.     Well, what happens next

15   is that the Board requires under Robert's Rules of
16   Order, that -- and their procedures, as they define,

17   that the Board -- when they meet on special Board
18   meetings or in the annual meetings, they discuss

19   violations that are going to be processed for lien.

20   This record doesn't exist for either of my liens.       In
21   fact, in half the minutes they don't have that

22   information that they are supposed to have, so we don't

23   know when the lien was proposed to be issued.      All we
24   know is when it was recorded.     Okay.   Well, that's -- so

25   we'll continue on that.     So the next thing you have is

             TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                 407TH DISTRICT COURT (210) 335-2895
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 1   allegedly that Board member, that minutes will show
 2   approval.   Now, it has to go to be filed, it has to be

 3   prepared and filed.   There are no records in that.     They

 4   don't -- There is no financial records to backup anybody
 5   did anything.   We have an attorney that's in charge of

 6   the liens, but I sure as heck -- he's had problems even

 7   determining what a job description was.      Discovery, he
 8   says, I don't know.   And so, you know, one thing leads

 9   to another, so now we got this morass of deliberately
10   abusing lien authority.   Now they say that the Plaintiff

11   refuses to pay on the -- in August 2009, they have

12   mysteriously out of nowhere.   Now you have to remember,
13   this discovery has been going on for almost a year now,

14   two years prior to the initiation of the lawsuit, they

15   come up with records on 2009 that show that apparently I
16   was refusing to pay, and they have now told the Court

17   that I used the excuse or I propose that there were
18   mailing address differences.   There were.     What happened

19   is they were mailing these things to my previous

20   address, or my tenant was not forwarding to me.
21   Regardless, I never got any certified notice at all.

22   Now, the -- now that's the Property Code.      The actual

23   codes of the neighborhood association also require
24   certified mail in two cases.   They require certified

25   mail on violations, what we call the ten day notice, and

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
                                                                 42



 1   that's the basis for -- one of the basis for a lien.
 2   The other one that they are required to do is the

 3   collection process and payment option.     If in fact I owe

 4   money, they are supposed to give me a certified notice.
 5   Well, guess what, they have no records of making any of

 6   these notices, whether certified or not.     Now, here we

 7   have a classic case of what I consider conscious
 8   indifference at best, which in fact constitutes fraud.

 9   So we now have these liens that have been recorded, and
10   Mr. Shull doesn't know about them, and the course goes

11   through until May of 2013, when in their objections,

12   they objected to the wrong affidavit, but one of my
13   tenants basically stated under oath that the reason why

14   he would not buy the house is because that's why -- how

15   he found the lien.   He wanted to buy the house, so he
16   went and checked the Court records and we found out that

17   this lien existed.   Now, if they were full of good faith
18   and everything, you would think that the knowledge of

19   this fraudulent lien would have been settled.     I mean,

20   there was no debt now.   Guess what?   The County records
21   don't show any settlement of this latest lien.     It's

22   been in existence for almost a year and a half since

23   they were told that the lien exists.     Now, Your Honor,
24   that to me is just gross bad faith.    So the reason why

25   the second lien was also incorporated is because I want

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
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 1   to show a pattern, a pattern of abuse, of ignoring the
 2   laws and the rules that apply.     It is very clear.

 3   Property Codes, and I cited a case, that said it is

 4   mandatory a certified notice.    It is not one of these
 5   things that, you know, you decide what you are going to

 6   do today or tomorrow.   That's exactly how they treated

 7   the covenants, the violations on every other document --
 8   declaratory document that they have on this Homeowner's

 9   Association.   That's the purpose of this lawsuit.     The
10   lien is only indicative of what they've done or haven't

11   done, to come here to this Court and say that I don't

12   have anything to complain about.     Your Honor, I have
13   taken the extreme measure of doing everything prior to

14   initiating this lawsuit, to resolve and answer my

15   questions without avail.    These Defendants have
16   concerted together, because you can't do these things

17   one or the other.   They've done it collectively,
18   individually and jointly, so therefore I'm requesting

19   that you deny their summary judgment for the fraudulent

20   lien to be thrown out, deny any sanctions that they may
21   request, and issue an order in effect for the Plaintiff,

22   who then has a partial summary judgment motion for the

23   fraudulent lien.
24                  THE COURT:   Thank you, Mr. Shull do you

25   have any new or different arguments with regards to your

            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
                                                                        44



 1   motion for partial summary judgment?
 2                    MR. SHULL:     No, Your Honor.      I'm not sure

 3   how to handle that, but I would rather wait and see what

 4   your decision is, as to what I would do with my summary
 5   judgment.

 6                    THE COURT:     Okay.   Very good.     So I want

 7   to make sure I have everybody's correct fax numbers.
 8   Mr. Shull, you're (210) 670-1418?

 9                    MR. SHULL:     Yes, ma'am, but if it is
10   possible, if you were going to try to communicate with

11   me, could you do it with e-mail?

12                    THE COURT:     I'm going to fax my orders.
13                    MR. SHULL:     Because I don't have a

14   full-time fax machine, that's the reason.

15                    THE COURT:     Okay.   Then I will mail it to
16   you.   Mr. Hensley, 512-708-8777?

17                    MR. HENSLEY:     Correct, Your Honor.
18                    THE COURT:     And Mr. Noel   (210) 734-0379?

19                    MR. NOEL:    Yes, ma'am.

20                    THE COURT:     Okay.   I will fax the orders
21   probably tomorrow morning.       And Mr. Shull, I will fax

22   yours, I'll also drop one in the mail for you as well.

23                    MR. SHULL:     I appreciate that.
24                    MR. NOEL:    Your Honor, may I approach

25   with an order?

             TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                 407TH DISTRICT COURT (210) 335-2895
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 1                   THE COURT:   Yes, please.   Thank you.
 2   Okay.   Thank you all for your excellent arguments.

 3                   (Proceedings adjourned)

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             TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                 407TH DISTRICT COURT (210) 335-2895
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 1   STATE OF TEXAS      )
 2   COUNTY OF BEXAR     )

 3              I, TRACY RAY PLUMMER, Official Court Reporter

 4   in and for the 407th District Court of Bexar County,
 5   State of Texas, do hereby certify that the above and

 6   foregoing contains a true and correct transcription of

 7   all portions of evidence and other proceedings requested
 8   in writing by counsel for the parties to be included in

 9   this volume of the Reporter's Record, in the
10   above-styled and numbered cause, all of which occurred

11   in open court or in chambers and were reported by me.

12              I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the

14   exhibits, if any, admitted by the respective parties.

15
16

17
                 /s/Tracy Ray Plummer     CSR #3586
18               Expiration Date 12/31/15
                 Official Court Reporter, 407th District
19               Bexar County, Texas
                 100 Dolorosa Street
20               San Antonio, Texas 78205
                 (210) 335-2895
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            TRACY RAY PLUMMER - OFFICIAL COURT REPORTER
                407TH DISTRICT COURT (210) 335-2895
