                                                                                      ACCEPTED
                                                                                  03-14-00812-CV
                                                                                          8400384
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                            12/29/2015 5:31:02 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                     CAUSE NO. 03-14-00812-CV

                     IN THE COURT OF APPEALS             FILED IN
                                                  3rd COURT OF APPEALS
                             FOR THE                   AUSTIN, TEXAS
                  RD
                 3 JUDICIAL DISTRICT OF TEXAS 12/29/2015 5:31:02 PM
                          AUSTIN, TEXAS               JEFFREY D. KYLE
                                                           Clerk
__________________________________________________________________

                          BOBBIE WHITE,
                            Appellant,

                                VS.

                      JOSEFINO BENCOMO III,
                             Appellee
__________________________________________________________________

   MOTION FOR DISMISSAL OF APPEAL DUE TO SETTLEMENT

               From the District Court, 26th Judicial District
                      of Williamson County, Texas
                  Trial Court Cause No. 14-0374-C26,
                   The Honorable Donna King, Judge
__________________________________________________________________


                                         /s/ Tony Pitts
                                         ______________________________
                                         Tony Pitts
                                         State Bar No. 24060429

                                         Law Office of Tony A. Pitts
                                         P.O. Box 5369
                                         Round Rock, TX 78683
                                         512.825.5545
                                         512.244.4355 (Fax)
                                         tapitts@taplawfirm.com

                                         ATTORNEY FOR APPELLANT




                                 1	  
                                        I.

      The Parties have reached a settlement agreement, attached hereto as Exhibit

“A,” as part of which they have agreed to dismissal of this appeal without

adjudication by the Court.

                                        II.

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

requests that the Court dismiss this appeal in accordance with the settlement

agreement of the Parties pursuant to T.R.A.P. 42.1(2).

                                                 Respectfully submitted,

                                                 LAW OFFICE OF TONY A. PITTS

                                                       /s/ Tony Pitts
                                                 By:   _________________________
                                                       Tony Pitts
                                                       State Bar No. 24060429

                                                 P.O. Box 5369
                                                 Round Rock, TX 78683
                                                 512.825.5545
                                                 512.244.4355
                                                 tapitts@taplawfirm.com

                                                 ATTORNEY FOR APPELLANT,
                                                 BOBBIE WHITE




                                         2	  
                      CERTIFICATE OF CONFERENCE

     I hereby certify that I have conferred with Fred Walker, counsel for
Appellee, concerning this motion and he is unopposed to it.

                                                /s/ Tony Pitts
                                      ____________________________________
                                                  Tony Pitts




                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Motion for Dismissal Due
to Settlement was served in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure on each party, or the attorney for such party, indicated below:

      Fred Walker
      Fred E. Walker, P.C.
      609 Castle Ridge Road, Ste. 220
      Austin, TX 78746
      512.330.1686 (Fax)
      fred@fredwalker.com
      Attorneys for Appellee

                                                /s/ Tony Pitts
                                      ____________________________________
                                                Tony Pitts




                                         3	  
EXHIBIT A
                            CAUSE NO.         03-14-00812-CV

                         IN THE COURT OF APPEALS
                                 FOR THE
                      3RD JUDICIAL DISTRICT OF TEXAS
                              AUSTIN, TEXAS


                                    BOBBIE WHITE,
                                      Appellant,
                                              vs.
                             JOSEFINO BENCOMO III,
                                    Appellee


          FULL AND FINAL SETTLEMENT AND RELEASE AGREEMENT

                                            A.
                                       DEFINITIONS

     1.   Bobbie White is Appellant in the above-entitled and numbered cause.

     2.   Josephino Bencomo III is Appellee in the above-entitled and numbered cause,

             and is an individual and a Texas resident.

     3. "Appellants" as used herein shall mean all parties identified hereinabove as

             Appellants and who are parties to this Agreement, and shall include any and

             all "Derivative Claimants" and "Entities" as defined below.

     4. "Appellees" as used herein shall mean all parties identified hereinabove as

             Appellees and who are parties to this Agreement, and shall include any and all

             "Entities" as defined below.

     5. "Derivative Claimants" shall mean any person or entity acting by, through, or

             under a Appellant (including by reason of marriage or family relationships,




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                                            Page    11
           any such person), or any of the Entities of a Appellant.

     6. "Entities" of a party shall mean those persons and/or entities (whether now in

           existence or not), and which are or were formerly owned or controlled, in

           whole or in part, directly or indirectly, by a party to this Agreement, or any

           Derivative Claimant, and their respective entities, employers, employees,

           directors, shareholders, officers, assigns, predecessors, successors, attorneys,

           representatives or agent of such persons and/ or entities.

     7. "Lawsuit" shall mean the above-entitled and numbered cause, pertaining to

           Appellant's claim against Appellee alleging violation of Texas Property Code

           Section 5.077 and seeking to quiet title to property located at 701 Saunders

           Dr., Round Rock, TX 78664.

     8. "Representatives" of a person or entity shall mean and include all of that person's

           or entity's past or present principals, agents, servants, employees, attorneys,

           consultants,   experts, partners     (both general and/or      limited),   equity

           participants, officers, directors, shareholders, parent companies, subsidiaries,

           affiliates, predecessors, successors, assigns, estates, beneficiaries, heirs,

           devisees, legatees, trustees, and personal representatives.

     9. "Settlement Agreement" shall mean this Full and Final Settlement Agreement

           and Mutual Release by and between the parties hereto.

                                      B.
                           CONTRACTUAL RECITALS AND
                             STATEMENT OF PURPOSE

        WHEREAS, Appellant has initiated the Lawsuit against Appellee, alleging

various causes of action; and



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                                         Page    12
          WHEREAS, Appellee has denied, and continues to deny, all such allegations by

Appellant, Bobbie White; and

          WHEREAS, this Settlement Agreement, and the execution hereof, does not, and

is not intended to be, construed to be, or is an admission of any fault or wrongdoing by

or on behalf of Appellant or Appellee, all such claims having been expressly denied

heretofore, and the parties continue to deny the same; and

          WHEREAS, all provisions of this Settlement Agreement and Mutual Release are

contractual in nature, and not mere recitals only; and

          WHEREAS, the purpose of this Settlement Agreement is to set forth and

embody a negotiated compromise, settlement, and release, as set forth herein.

          NOW THEREFORE, in consideration of the mutual covenants and conditions

herein contained, and the incorporation of the above Recitals, the parties hereto agree

as follows:

                                              c.
 PERSONS AND ENTITIES BOUND BY THIS SETTLEMENT AGREEMENT

     1.   Appellant, Bobbie White understands and agrees that by execution hereof, the

             terms of this Settlement Agreement are binding upon Appellant and upon all

             representatives, successors and assigns of Appellant.

     2.   Appellee, Josephina Bencomo III understands and agrees that by execution

             hereof, the terms of this Settlement Agreement are binding upon Appellee and

             upon all representatives, successors and assigns of Appellee.

     3. Appellant, Bobbie White, represents and warrants that Appellant has approved of

             all of the terms, conditions and covenants of this Settlement Agreement as




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                                          Page     13
             evidenced by the duly authorized signature to this Settlement Agreement.

     4. Appellee, Josephino Bencomo III, represents and warrants that Appellee has

             approved of all of the terms, conditions and covenants of this Settlement

             Agreement as evidenced by the duly authorized signature to this Settlement

             Agreement.

                                         D.
                               NO OUTSTANDING CIAIMS


     1.   Appellant Bobbie White, warrants and represents that Appellant has no

             awareness of the existence of any actual or potential claim, demand, suit,

             cause of action, charge or grievance possessed by Appellant, which is not

             subject to and fully released by this Settlement Agreement, except for matters

             as may be expressly excluded in this Settlement Agreement, that concerns or

             relates in any way, directly or indirectly, to the Lawsuit.

     2.   Appellant, Bobbie White, warrants and represents that Appellant has not

             assigned, authorized or transferred         (in any way, whether directly or

            indirectly) any claims, demands, suits, causes of action, charges, or grievances

             of any kind or character, which Appellant had or may have had prior to and

             including the Effective Date against Appellee, J osephino Bencomo III.

            Appellant, Bobbie White, neither has nor owns any part of any actual or

             potential claims, demands, suits, causes of action, charges, or grievances of

             any kind or character against Appellee which are not subject to and released

            by this Settlement Agreement.

                                                   E.



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                                            Page    14
                                    CONSIDERATION

     3. In consideration of the total sum of $1.00 (One and No/100 Dollars) and in

           further consideration of the "Non-Cash Inducement" described below from

           Appellee, the receipt and sufficiency of which is hereby acknowledged by

           Appellant, and in consideration     of the mutual agreements,      conditions,

           representations, warranties, recitals, covenants and statements of intention

           contained   herein,   Appellant,    Bobbie      White   hereby   accepts   the

           above-referenced payment and Non-Cash Inducement in full settlement,

           compromise and release of all claims as arising out of or in connection with

           the Lawsuit, pursuant to this Settlement Agreement, against Appellee,

           Josephina Bencomo III.

                                 Non-Cash     Inducement

           a. Appellee agrees to accept a deed in lieu of foreclosure from Appellant in

              full satisfaction of the indebtedness of that certain Real Estate Lien Note

              Dated November 21, 2001 between Bobbie White and husband George

              White as borrowers and Josefina Bencomo III as Lender; secured with

              vendor's lien created in a Warranty Deed dated November 21, 2001

              between Josefina Bencomo III as Grantor and Bobbie White and husband

              George White as Grantee; and further secured by a lien created in a Deed

              of Trust dated November 21, 2001 between Bobbie White and husband

              George White as Grantor, Larry Molinare as Trustee and Josefino

              Bencomo III as Beneficiary;

          b. Appellee agrees to assume and pay, according to the note's terms, the




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                                       Page    15
        unpaid principal and earned interest on the note in the original principal

        sum     of EIGHTY TWO THOUSAND SIX HUNDRED                             DOLLARS

        ($82,600.00)     dated November   21, 2001,    executed by Bobbie White and

        husband George White, and payable to the order of Long Beach Mortgage

        Company. The note is secured by an express vendor's lien and superior

        title retained in a deed dated November       21, 2001,   recorded in Document

        No. 2001088424     of the real property records of Williamson County, Texas,

        and additionally secured by a deed of trust dated November         21, 2001   from

        Bobbie White and husband George White to Troy Gotschall, trustee,

        recorded in Document No.      2001088425      of the real property records of

        Williamson County, Texas. As further consideration Appellee promises to

        keep and perform all the covenants and obligations of the Appellant

        named in that deed of trust and to indemnify, defend, and hold Appellant

        harmless from any loss, attorney's fees, expenses, or claims attributable to

        a breach or default of any provision of this assumption by Appellee.

        Appellant assigns to Appellee any funds on deposit for payment of taxes

        and insurance premiums.

     c. Appellant may remove such large appliances as are not affixed to the

        property including the refrigerator, deep freezer, stove, washer, and dryer.

     d. Appellee agrees to lease the property back to Appellant for an amount                 j1,i/
                                               4-:,                  ~-6~""'"'1... 2.8, 2.u i~.
        equal to the current mortgage payment!~~~



     e. Appellee shall satisfy in full Appellant's mortgage obligation to Chase in




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                                   Page   16
                  order to obtain a release of Chase's mortgage lien on the Property no later

                  than    12   months after Appellant's transfer deed is recorded in the official

                  public records of Williamson County, Texas.
                                                        a;
              f. Appellant will assist Appellee i'S needed to provide any information

                  required from Chase to fulfill the terms of this Agreement.

              g. Appellant will provide Appellee the names and addresses of all of her

                  deceased husband's children within         10   days from the execution of this

                  agreement.

              h. Appellant will release the Lis Pendens currently filed against the property

                  within ten days after the Effective Date of this Agreement.

     2.   Appellee shall tender such sum in the following manner:           on the Effective Date

          of this Agreement, Appellee shall deliver a check for the total amount of the

          settlement sum, payable to Appellant's attorney, as Trustee.

     3. Contemporaneously with the execution of this Settlement Agreement parties

          hereto will sign a Deed in Lieu of Foreclosure, a copy of which is attached hereto

          and incorporated herein for all purposes as Exhibit "A."
          vJ,~:,·.1 tll        s
     4. .GGHHml~l;r                 with the execution of this Settlement Agreement, the counsel

          for Appellant will file a Motion for Dismissal of the Appeal currently pending in

          this case.

     5. Each party agrees to be solely responsible for the payment of their respective

          attorney's fees, court costs, expert witness fees, court reporter's fees, and all other

          expenses incurred on said party's behalf as a result of or in connection with the

          Lawsuit and/ or this Settlement Agreement.




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                                                Pao-e
                                                    b
                                                        17
                                               F.
                                    MUTUAL RELEASE

          Appellant, Bobbie White, andAppellee, Josephino Bencomo III, hereby covenant,

agree and consent to the following:

     1.   The intent of the parties hereto is that each person or entity executing this

             Settlement Agreement shall, by reason of such execution, be entirely free of

             any and all actual or potential claims, suits, demands, causes of action,

             charges or grievances of any kind or character, regardless of the nature or

             extent of the same, arising out of the Lawsuit.

     2.   Appellant, Bobbie White, hereby fully and finally RELEASES, ACQUITS, AND

             FOREVER DISCHARGES               Appellee, Josephino Bencomo III (any of

             Appellee's representatives), and Appellant further covenants not to assert in

             any manner against any of such persons or entities released hereby, any and

             all actual or potential claims held by Appellant, against Appellee, and/ or any

             suits, demands, causes of action, charges or grievances of any kind or

             character whatsoever, heretofore or hereafter accruing for or because of any

             matter done, omitted or suffered to be done by any such party hereto prior to

             and including the date hereof, and in any manner (whether directly or

             indirectly) arising from or related to the Lawsuit.

     3. Appellee, Josephino Bencomo III, hereby fully and finally RELEASES,

            ACQUITS, AND FOREVER DISCHARGES Appellant, Bobbie White (and

             Appellant's representatives), and Appellee further covenants not to assert in

             any manner against any of such persons or entities released hereby, any and




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                                           Page     18
          all actual or potential claims held by Appellee against Appellant and/ or any

          suits, demands, causes of action, charges or grievances of any kind or

          character whatsoever, heretofore or hereafter accruing for or because of any

          matter done, omitted or suffered to be done by any such party hereto prior to

          and including the date hereof, and in any manner (whether directly or

          indirectly) arising from or related to the Lawsuit.

                                             G.
                                      INUREMENT

       It is understood and agreed that this Settlement Agreement shall inure to the

benefit of Appellant, Bobbie White and/or the representatives of Appellant.        No other

person or entity is intended to benefit by or be deemed a third-party beneficiary of this

Settlement Agreement.

                                             H.
                        EXPRESS DENIAL OF LIABILITIES

       Appellant, Bobbie White, and Appellee, Josephino Bencomo III and/or their

representatives, understand and agree that no payment made nor released pursuant to

the terms of the Settlement Agreement, or other consideration given shall be intended to

be, nor shall be construed to be, an admission of liability and any and all such liability is

expressly denied.

                                                I.
                                    SEVERABILITY

       If any one or more of the provisions of this Settlement Agreement, or the

application of any such provision to any person, entity, or set of circumstances, shall be

determined to be invalid, unlawful, or unenforceable to any extent at any time, the




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                                         Page        19
remainder of this Settlement Agreement, and the application of such provision to

persons, entities, or circumstances other than those as to which it is determined to be

invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be

enforceable to the fullest extent permitted by law.          Any invalid, unlawful, or

unenforceable provision hereof shall be reformed to the extent necessary to render it

valid, lawful, and enforceable in a manner consistent with the intentions of the parties

hereto regarding such provision.

                                              J.
                    ENTIRE AGREEMENT OF THE PARTIES

      This Settlement Agreement constitutes the entire agreement and understanding

of Appellant,    Bobbie White      and Appellee, Josephino       Bencomo III      and/or

representatives, with respect to the transactions contemplated hereby, and supersedes

all prior agreements, arrangements, and understandings related to the subject matter

hereof, including but not limited to, the Lawsuit.       No representations, warranties,

recitals, covenants, or statements of intention have been made by, or on behalf of, any

party hereto which is not embodied in this Settlement Agreement or in connection with

the transactions contemplated hereby, and no party hereto shall be bound by, or liable

for, any alleged representation, warranty, recital, covenant, or statement of intention

not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals,

and statements of intention in this Settlement Agreement shall be binding upon, inure

to the benefit of, and be enforceable by Appellant, Bobbie White and Appellee,

Josephino Bencomo III, and/or their representatives.

                                           K.
                                   GOVERNINGIAW




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                                       Page        110
         This Settlement Agreement shall be construed in accordance with the governing

laws of the State of Texas. The obligations of the parties are performable, and venue for

any legal action arising out of this Settlement Agreement shall lie in Williamson County,

Texas.

                                    L.
                   FULL UNDERSTANDING              AND AGREEMENT

         EACH RELEASING PERSON, ENTITY, OR PARTY WARRANTS THAT SUCH

PARTY HAS READ THIS FULL AND FINAL SETTLEMENT AGREEMENT AND

MUTUAL RELEASE (INCLUDING EXHIBITS) AND FULLY UNDERSTANDS IT.

EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR

LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO EXECUTE THIS

SETTLEMENT AGREEMENT AND MUTUAL RELEASE, AND THAT SUCH PARTY

HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY

REPRESENTATION OF ANY KIND OR CHARACTERNOT EXPRESSLY SET FORTH

HEREIN.

                                             M.
                        EXECUTION AND EFFECTIVE DATE

         This Settlement Agreement may be signed in counterparts, and each counterpart

shall constitute an original.    The parties hereto have executed this Full and Final

Settlement Agreement and Mutual Release on the dates set forth opposite their names,

to be effective as of October   00 , 2015.


                                         Bobbie White,
                                         Appellant



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                                        Page      111
                                          Notary Public, State of Texas




STATEOF TEXAS                       )

COUNTYOF WILLIAMSON                 )

       On this '1°~day of October, 2015, before me, the undersigned notary public,
personally appeared Bobbie White, known to me to be the person whose name is
subscribed to the within instrument and acknowledged that Bobbie White executed the
same for the purposes therein contained.               ~


                                        ~-
                                         Notary Public, State of Texas
                                                                          -
STATEOF TEXAS                       )

COUNTYOF EL PASO                    )
                 J/lc/h            fl/ore,nhe¥
      On this ~ day of .Getober, 2015, before me, the undersigned notary public,
personally appeared Josephino Bencomo III III, known to me to be the person whose
name is subscribed to the within instrument and acknowledged that Josephino
Bencomo III III executed the same for the p oses therein contained.



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                                        Page   112
