                                                                                ACCEPTED
                                                                           03-14-00250-CV
                                                                                  3901099
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                      1/26/2015 3:12:16 PM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK

                         In The
                    Court of Appeals
                         For The                           FILED IN
                                                    3rd COURT OF APPEALS
                  Third District of Texas               AUSTIN, TEXAS
                                                    1/26/2015 3:12:16 PM
                                                      JEFFREY D. KYLE
                                                            Clerk
                  NO. 03-14-00250-CV


American Homesites, TX, LLC and Alexandra Krot, Appellants

                            v.

    Fidelity National Title Insurance Company, Appellee


          On Appeal from the 353rd District Court
                  Travis County, Texas
         Trial Comi Cause No. D-1-GN-14-000590


     APPELLANTS' MOTION FOR REHEARING


                             Donald H. Grissom
                             State Bar No. 08511550
                             don@gandtlaw.com
                             509 West 12th Street
                             Austin, Texas 78701
                             (512) 478-4059
                             (512) 482-8410 fax

            ATTORNEY FOR APPELLANTS




                             1
                                    In The
                               Court of Appeals
                                    For The
                             Third District of Texas


                             NO. 03-14-00250-CV


      American Homesites, TX, LLC and Alexandra Krot, Appellants

                                       v.

           Fidelity National Title Insurance Company, Appellee


                 On Appeal from the 353rd District Court
                          Travis County, Texas
                Trial Court Cause No. D-1-GN-14-000590


            APPELLANTS' MOTION FOR REHEARING


TO THE HONORABLE FIFTH COURT OF APPEALS:

      Appellants American Homesites, TX, LLC and Alexandra Krot,

("Appellants") file this, their Motion for Rehearing of the Court's

Memorandum Opinion dated December 31, 2014.             In support of their

motion, Appellants respectfully show the Comi the following:

                        I.       INTRODUCTION

      This is an action for breach of fiduciary duties, fi·aud and conspiracy

to commit fi·aud. Over the course of months, Appellee successfully colluded

                                       2
with other parties to denude Appellants out of hundreds of thousands of

dollars in a fi·audulent real estate scheme.

      By this Motion for Rehearing, Appellants, American Homesites, TX,

LLC and Alexandra Krot, ask this Court to revisit its decision to affirm the

Trial Court's granting of Defendant's Traditional and No-Evidence Motion

for Summary Judgment. Rehearing is appropriate in this litigation because

the Comt's ruling neglects critical evidence presented and has a dispositive

effect. For that reason, Appellants urge the panel to consider the following

argument.

                   II.PROCEDURALBACKGROUND

      In 2006, Appellants filed suit against several Defendants (Sky Group

of Texas, Wolf, Zaretsky, et al) in Cause No. D-1-GN-06-004414, In the

353rd Judicial District Comt of Travis County, Texas. In May 2013,

Appellants sued Appellee alleging conspiracy to commit fraud and

fi·audulent concealment of evidence that tolled the statute of limitations.

Thereafter, Appellee filed a No-Evidence and Traditional Motion for

Summary Judgment. The Trial Comi granted the Motion on January 30,

2014 (R. at 568). Appellee then filed a Motion to Sever the claims against

Appellee which was granted on February 21, 2014 (R. at 569). The severed

action was assigned Cause No. D-1-GN-14-000590 (R. at 569) and


                                        3
Appellants filed their Notice of Appeal on April21, 2014 (R. at 591). Later,

on December 31, 2014, this Court issued their Memorandum Opinion,

affinning the Trial Court's order granting summary judgment for Appellee.

                             II.    ARGUMENT

      In the Record, Appellants clearly identified which documents were

received in 2013 that were not previously produced in the 2007 round of

production, and that the 6,000 plus documents produced in 2013

demonstrated Appellee's role in fraudulent activities where the 2007

documents presented Appellee as an innocent bystander.

      In Appellant, Krot's affidavit (R. at 252), at paragraph 11, the

documents produced in 2013 are distinguished fi·om those produced in 2007.

Krot unequivocally states that none of the 6,000 documents produced in

2013 were part of the original 2007 production. Indeed, Fidelity did not

contradict this claim. Fidelity never claimed or argued that any of the 2013

6,000-page production was produced in 2007. Krot fmiher specifically

identifies that the documents referenced and attached to the affidavit and

response to Fidelity's motion for summary judgment were part of the 6,000

pages -- not previously produced.

      The documents identified below were not contained in the 2007

production, but were produced in 2013 and showed the following:


                                     4
• Appellee knew that the principals of J&T (Wolf, Zaretsky, and

  Borokhovich) were the same as the principals of Waterfall

  Gallery as evidenced by (1) Secretary of State Filings for

  Waterfall Gallery (R. at 446) Wild Horse Ranch 002239-

  002246, (2) Indemnity and Guaranty Agreement (R. at 469)

  Wild Horse Ranch 000082-000097, and (3) Secretary of State

  Filings for J&T Development (R. at 516) Wild Horse Ranch

  004863-004865. The buyer and seller were one in the same. In

  essence, self-dealing;

• Appellee closed the sale of the 200-acre tract from J&T to

  Waterfall Gallery of Austin. (R. at 462) even though Sky

  Station 200 still held the purchase contract assignment from

  Sky Group. (R. at 461) as evidenced by (1) Assignment of

  Unimproved Property Contract (R. at 461), and (2) General

  Wananty Deed With Vendors Lien (R. at 462) Wild Horse

  Ranch 002560-002566. There was no contract on which

  Fidelity could open a guaranty file;

• Appellee held $25,000 of Appellants' money as earnest money

  (R. at 426) as evidenced by the Chart of "Funds received by

  Fidelity National Title Insurance Company" Wild Horse Ranch

                           5
            004708 (R. at 426). Fidelity knew that it was using monies held

            for other persons to close this transaction;

         • Appellee held $150,000 of Appellants' money on the 200-acre

            contract (R. at 426) as evidenced by the Chart of "Funds

            received by Fidelity National Title Insurance Company" Wild

            Horse Ranch 004708 (R. at 426);

         • Appellee held $300,000 of Appellants' money on the 414-acre

            contract. (R. at 426) as evidenced by the Chart of "Funds

            received by Fidelity National Title Insurance Company" Wild

            Horse Ranch 004708 (R. at 426);

         • Fidelity opened numerous guaranty files on the entirety of the

            Wild Horse Ranch and various sub-parts (R. at 396-97 and 408)

            although there were no contracts or surveys to support these

            files; and

         • Fidelity wired out over two million dollars at the direction of

            the other defendants, which made this a cash-back at closing

            transaction (R. at 162).

      When taken together this evidence shows, at least circumstantially,

that Fidelity participated in the conspiracy to defraud Appellants. None of

these facts were known or made available to the Appellants in the

                                       6
documents produced in 2007.

                              III.    CONCLUSION

      It is not the great disparity in the number of documents produced that

evidence Appellee's fraudulent concealment; it is the facts contained within

the newly produced documents that provide the reason for the previous

concealment of records as well as the extent of Appellees role. Using logical

reasoning, one can make the inference that the withholding of records was

meant to conceal wrongdoing by the producing party, in this case, the

Appellee, and thus toll the statute of limitations.

                                IV.   PRAYER

      Appellants respectfully request that this Court reverse its opinion of

December 31, 2014, grant Appellants a new hearing, and such other and

further relief, at law or equity, to which they may be justly entitled.




                                        7
                               Respectfully submitted,


                               /s/DonaldHGrissom
                               Donald H. Grissom
                               don@gandtlaw.com
                               GRISSOM & THOMPSON, LLP
                               TX State Bar No. 08511550
                               William W. Thompson, III
                               TX State Bar No. 19960050
                               509 West 12th Street
                               Austin, Texas 78701
                               512/478-4059
                               512/482-8410 Fax
                               ATTORNEY FOR APPELLANTS


                     CERTIFICATE OF SERVICE
      I hereby certify that a tme and correct copy of the foregoing document
has been forwarded to all counsel of record in compliance with Texas Rules
of Appellate Procedure, via facsimile, electronic, or ce1iified mail return
receipt requested, on January 26, 2015.

                                            /s/DonaldHGrissom
                                            Donald H. Grissom

Christopher R. Mugica
Jackson Walker, LLP
100 Congress A venue, Suite 1100
Austin, Texas 78701
512-236-2000
512-236-2002 fax

                  CERTIFICATE OF COMPLIANCE
      I hereby ceJiify on this date that the foregoing document contains
1,185 words.
                                           /s/DonaldHGrissom
                                           Donald H. Grissom


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