                                                           June 26, 2015

                    NO. 03-14-00291-CV



          IN THE THIRD COURT OF APPEALS
                      AUSTIN, TEXAS


                 MICHAEL GLENN MOTT,

                                        Appellant
                             vs.



     WILLIE EDWARD KELLAR AKA WE. KELLAR;
             JOSEPH G TUCK, Individually;
TUCK & KIZER PLLC, a professional limited liability company;

                                        Appellees.


             Appeal from the 423rd District Court
                   Bastrop County, Texas


                  Appellant's Reply Brief


                                        Michael Glenn Mott
                                        8515 IngridAve
                                        Elgin TX 78621
                                        512 718-4864


                                        Appellant Pro Se




                                                             RECEIVED
                                                             AUG 2 8 2014
                                                           THIRD COURT OF APPEAL
                     TABLE OF CONTENTS

INDEX OF AUTHORITIES                             3

SUMMARY OF FACTS                                 4

1. THE DISTRICT COURT ERRED WHEN IT              5
GRANTED SUMMARY JUDGMENT AGAINST
THE APPELLEE MICHAEL GLENN MOTT.

2. THE DISTRICT COURT DENIED THE                 6
APPELLANT DUE PROCESS OF LAW GUARANTEED
BY BOTH THE STATE AND FEDERAL CONSTITUTIONS.

3. THE DISTRICT COURT ERRED WHEN IT              9
GRANTED SUMMARY JUDGMENT BASED
ON THE FORECLOSURE AND SALE OF THE
APPELLANT'S HOME AND REAL PROPERTY
THAT WAS NOT CONDUCTED IN ACCORDANCE
WITH SECTION 5.066 OF THE TEXAS PROPERTY CODE.

4. THE DISTRICT COURT ERRED WHEN IT              10
GRANTED SUMMARY JUDGMENT TO THE
APPELLEE JOSEPH G TUCK, INDIVIDUALLY AND
APPELLEE TUCK & KIZER PLLC.

5. MORE FACTUAL MISSTATEMENTS BY                 11
APPELLEES' COUNSEL IN THE RESPONSE TO
THE APPELLANT'S BRIEF IN CHIEF

CONCLUSION AND PRAYER                            12

CERTIFICATE OF COMPLIANCE                        14

CERTIFICATE OF SERVICE                           14
                          INDEX OF AUTHORITIES


CASES


Armstrong v. Manzo, 380 U.S. 545, 552 (1965).          8

Fuentes v. Shevin, 407 U.S. 67 (1972).                 8

Joint Anti-Fascist Refugee Committee v. McGrath,       8
341 U.S. 123(1951).

Nelson v. Adams, 529 U.S. 460, 120 S.Ct. 1579(2000).   8


STATUTES AND COURT RULES


  Texas Property Code, Section 5.066.
                         APPELLANT'S REPLY BRIEF

       Appellant Michael Mott appeals the judgmentof the trial courtprematurely

granting summaryjudgment to the appellees. This reply to the appellees'

responsive brief is necessary because that response brief mischaracterizes the

record.


                                 SUMMARY OF FACTS

      Appellant Mott owns real property which he purchased in a contract for deed

from appellee / defendant Kellar. After purchasing the property, Kellar refused to

deliver Mott a general warranty deed to the property. Kellar and appellee /

defendant Joseph Grady Tuck then conspired together to fraudulently convert the

title and ownership ofthe property to themselves.1 In furtherance of that

conspiracy, Kellar and Tuck denied that Kellar had in fact already been paid,

apparently hoping to take advantage ofthe destruction of plaintiff's personal

property, financial records, and personal effects caused by the recent Bastrop fire.

Mott then filed the petition in the present case requesting injunctive reliefand the

imposition of a constructive trust. (Appellant's Appendix B)     Defendant /

appellees Kellar and Tuck requested the trial court to grant summary judgment
based solely based on the false contention that after more than ten years of


   See Notice ofTrustee's Sale attached to the Appendix to Appellees' Response
  Briefas Exhibit K in which defendant / appellee Tuck is designated as trustee.
payments Mott had arbitrarily stopped payment on the contract for deed.

(Appellant's Appendix B)      On appeal, Kellar and Tuck attach defendant /

appellee Kellar's own record of payments supposedly made, but actually that

"record" is incomplete in that it does not include payments that were made on the

contract for deed after August 2012.. (Appellees'Appendix E)        It appears that

Kellar and Tuck simply tore the final pages out of Kellar's receipt book. In any

event, that incomplete record of receipts was never presented to the trial court

judge and was instead attached as an appendix to the appellees' responsive brief

on appeal. (Motion for Summary Judgment attached as Appellant's Appendix G)



      1.     THE DISTRICT COURT ERRED WHEN IT GRANTED
SUMMARY JUDGMENT AGAINST THE APPELLEE MICHAEL GLENN
MOTT.


      To determine the legitimacy of the subject order granting summaiy

judgment, one need look no further than the defendant/ appellees' motion for

summaryjudgment (Appellant's Appendix G) and appellant Mott's response to

that motion (Appellant's Appendix H) . Notably absent from that motion for

summary judgment is any meaningful contention that the contested issues in this

case are so undisputed as to warrant summaiy disposition. As his own attorney, the

defendant Tuck did not even bother to submit a sworn affidavit or declaration in

support. On the other hand, the plaintiff/ appellant's response to that motion
                                          5
shows the following principal fact to be in dispute, i.e., whether Mott defaulted in

his payments on the contract for deed.

       Apparently recognizing this deficient basis for summaiy judgment,

appellees' response on appeal includes a handwritten and partial record of receipts

purported to have been received by Kellar. This was never presented to the trial

court judge, and the learned counsel for the appellee must realize that she can't just

throw anything she wants into the appellate record that was never shown to the

trial court judge first.

       As for the trial court, the one sentence order granting summaiy judgment

being appealed from states absolutely no basis for summaiy judgment other than to

state that the motion for summaiy judgment should be granted. Appellant's

Appendix I)       The defendant Tuck was successful in' sliding this by' the trial

court judge, and now he has hired a new face just out of law school to tiy to pull

the same thing with the Court ofAppeals.2


    2.  THE DISTRICT COURT DENIED THE APPELLANT DUE
PROCESS OF LAW GUARANTEED BY BOTH THE STATE AND
FEDERAL CONSTITUTIONS.


       Appellant's second proposition of error focuses on the outright denial of due



  The appellant congratulates appellees' new counsel, Ms. Michelle Lubbert, on her
recent graduation from law school and admission to the bar within the past few
months.
process by the trial court in rushing this case to judgment:

       When it was discovered that defendant Joseph Grady Tuck was personally

implicated as a co-conspirator with the defendant Kellar, and that he (Tuck)

intended to represent all ofthe defendants (including himself his firm, and

defendant Kellar), the plaintiff Mott immediately moved to disqualify both Tuck

and his firm from acting as counsel. The trial court completely ignored the motion

to disqualify and refused to set the matter for hearing. On appeal the new lawyer

for the appellees, Ms. Lubbert, repeatedly claims in her response brief that the

plaintiffMott never requested a hearing. (Appellant's Appendix F & K) This is

not true. Along with his motion to disqualify counsel, Mott submitted a request

and notice of hearing which the trial court never considered.

   Secondly, as indicated in the appellant's brief in chief, at the hearing on the

motion for summaiy judgment, the trial court went off the record and proceeded to

conduct what amounted to an evidentiary hearing, or better put, a one-on-one

unsworn private conference with Joseph GradyTuck.         Immediately thereafter, the

trial court judge granted summaiy judgment.

   Third, the trial courtjudge amended his order of summaiy judgment to

handwrite an award of attorney fees and costs. (See Amended Order atAppellees'

Appendix D)     The amendment of a judgment to impose attorney fees and costs is

invalid without giving the opposing party notice and the opportunity to dispute.,
Nelson v. Adams. 529 U.S. 460, 120 S.Ct. 1579 (2000)(reversing the court of

appeals on the basis of Fifth Amendment due process) . On appeal, the new

lawyer for the defendant / appellees repeatedly complains that the plaintiff/

appellant did not object to these blatant violations of due process. How could he

have done so? By the time the plaintiff knew about the deprivation of due process

the case before the trial court was over.   The appellant specifically delineated this

error in his brief-in-chief- What more could he have done? In this respect, the

arguments of appellee that error was not preserved are frivolous.

   The right to due process is a "basic aspect of the duty of government to follow

a fair process of decision making when it acts to deprive a person of his

possessions. The purpose of this requirement is not only to ensure abstract fair play

to the individual. Its puipose, more particularly, is to protect his use and possession

of property from arbitrary encroachment..." Fuentes v. Shevin> 407 U.S. 67, 80-

81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath. 341 U.S. 123,

170-71(1951) (Justice Frankfurter concurring). Thus, notice of hearing and the

opportunity to be heard "must be granted at a meaningful time and in a meaningful

manner." Armstrong v. Manzo. 380 U.S. 545, 552 (1965).
   3.  THE DISTRICT COURT ERRED WHEN IT GRANTED
SUMMARY JUDGMENT BASED ON THE FORECLOSURE AND SALE
OF THE APPELLANT'S HOME AND REAL PROPERTY THAT WAS NOT
CONDUCTED IN ACCORDANCE WITH SECTION 5.066 OF THE TEXAS
PROPERTY CODE.


         With respect to this proposition of error, appellees' motion for summary

judgmentdoes not pretendto have complied with this section of the Property

Code. At paragraph 5 of that motion, defendant appellee Joseph Grady Tuck

states


         On August 7, 2012, the Property was foreclosed upon by Willie Edward
         Kellar, as evidenced by Trustee's Deed ofthe same date, naming Willie
         Edward Kellar as the foreclosure buyer.

In her responsive brief on appeal, appellees' new counsel once again attempts to

include a series of documents thatwere never presented to the trial court in support

of appellees' motion for summaiy judgment.        She is either being intentionally

loyal and/or intentionally deceitful respecting her marching orders from her

defendant boss (Joseph Grady Tuck), or she doesn'tknow the rules. In this case,

what is important is not whatever she can now come up with on appeal to buttress

the record. Instead, the Court of Appeals is entitled to focus its attention on what

was presented to the trial court as a basis for summary judgment in the first place.

My bet is that she simply does not have sufficient experience with appellate

procedures to understand how the appellate record is legitimately established and
                                           9
considered.    (As the Court ofAppeals register indicates, Ms. Lubbert's original

attempt to file a response to the appellant's brief-in-chief was rejected because she

had failed to follow the appellate rules of procedure.)

      Appellees' counsel has now on appeal included documentation that is

helpful to the appellant rather than to her client. For example, as discussed above,

it is appellees' counsel that included a copy of the Notice of Trustee's Sale

(attached to the Appendix to Appellees' Response Brief as Exhibit K) in which

defendant / appellee Tuck is designated as trustee. This itself casts doubt on the

validity of the sale of the property itself, to say nothing of personally implicating

Joseph Grady Tuck as being something more than just a disinterested advocate for

the defendant Kellar.    The sale of the property that is the subject of this lawsuit

was not accomplished in accordance with Texas law and should be set aside.

      4.      THE DISTRICT COURT ERRED WHEN IT GRANTED
SUMMARY JUDGMENT TO THE APPELLEE JOSEPH G TUCK,
INDIVIDUALLY AND APPELLEE TUCK & KIZER PLLC.

      As pointed out in the appellant Mott's brief-in-chief, a thorough review of

the defendant appellees' motion for summaiy judgment does not reveal any request

for summary judgment in favor of defendants Joseph Grady Tuck, individually, or
his law firm. These named defendants are not even mentioned.

      Apparently this is a subject to be avoided because Ms. Lubbert makes no

mention of this issue - and for good reason. How can a trial court grant summaiy
                                          10
judgment on behalf of a party when it is not even requested? She is hoping the

Court ofAppeals will not notice this deficiency, so she attempted to obscure her

supervisor's failure.   It is perhaps no coincidence that Ms. Lubbert did not include

in her appendix the principal documents germane to the disposition of this appeal,

namely the defendants' motion for summary judgment and the appellant's response

to that motion. The error of the trial court judge is apparent when the portions that

Ms. Lubbert has redacted are considered.




      5.     MORE FACTUAL MISSTATEMENTS BY APPELLEES'
COUNSEL IN THE RESPONSE TO THE APPELLANT'S BRIEF IN CHIEF


      Giving Ms. Lubbert (appellees' counsel) the ethical benefit of the doubt, it is

quite possible that she never read the case file before she wrote her response brief.

At page 4 of that brief she states, "Michael Glenn Mott has failed to respond to

appellees' discoveiy requests and to pursue this litigation any further." That is not

true. The plaintiff submitted a full set of written discoveiy (including requests for

admission, interrogatories, and requests for production) to the appellees and their

counsel. The appellees provided no substantive response, only a series of

frivolous objections. On the other hand, the plaintiff appellant received and

responded to the discoveiy served on him by the appellees' counsel      Any

suggestion by Ms. Lubbert that "Michael Glenn Mott failed to respond to


                                          u
appellees' discoveiy requested and to pursue this litigation any further" is

mistaken and misinformed.


      Ms. Lubbert's responsive brief states at page 3:

      "Appellant filed a Petition ... against Appellee Willie Edward Kellar, and
      adding Appellees Joseph G Tuck and his partnership Tuck & Kizer Law
      Group, PLLC ... requesting injunctive relief from foreclosure."

"Adding Tuck and his law firm as defendants"? Hardly. Notwithstanding

Lubbert's transparent attempt to mischaracterize plaintiff Mott as some kind of

vexatious litigant, Tuck was immersed in this conspiracy with Kellar from the start,

and his involvement in the fraudulent transfer as an active party rather than merely

as an advocate invokes his (Tuck's) personal liability. In preparing her responsive

brief in this appeal, Ms. Lubbert was presented with a record in which the trial

court had prematurely granted summaiy judgment with no legal or factual basis for

doing so. Instead of attempting to show that the trial court judgment should be

affirmed, Ms. Lubbert has attempted to obscure that record so that the appeals

court will never reach the merits of this appeal. This is not effective appellate

advocacy, it is blatant deceit. Neither Mi*. Lubber, her boss, nor her clients do not

deserve serious consideration.


                         CONCLUSION AND PRAYER


      Where is the proof that was presented to the trial court that conclusively

disproves at least one element of the plaintiff's stated cause of action? That

                                          12
"proof doesn't exist, but Ms. Lubbert avoids this critical dispositive issue by not

including the motion for summaiy judgment in her appendix, and she certainly

doesn't argue that the trial court's actions were justified by the documents

submitted with that motion for summaiyjudgment.         The papers she does file are

largely irrelevant (if not purposely misleading) for present consideration. Ms.

Lubbert's response brief serves only to demonstrate that she, as a new lawyer, was

pressured to write by a boss who himself should not be representing anyone

because of his own personal scurrilous involvement in this case.    Insofar as

liability is concerned, Joseph Grady Tuck is involved up his neck, and no amount

of eloquent words from the charming Ms. Lubbert should be of any consequence.

Appellees are not entitled to summaiy judgment, and they are not entitled to have

the actions of the trial court judge sustained on appeal.

      WHEREFORE, appellant Michael Glenn Mott prays that this court vacate

the summary judgments granted to the appellees, and that the case be remanded to

another district court judge.   Appellant also requests an award of costs.

                                               Respectfully submitted,


                                               Michaer Glenn Mott
                                               8515 Ingrid Ave
                                               Elgin TX 78621
                                               512 718-4864
                                               Appellant Pro se


                                          13
                      CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations.



                                              Michael Glenn Mott


                          CERTIFICATE OF SERVICE


This to certify that on the 22 day ofAugust, 2014, a true and complete copy of

the above and foregoing APPELLANT'S REPLY BRIEF was mailed to opposing

counsel at the following address via United States Postal Service:

Joe Grady Tuck
Tuck & Kizer, PLLC
906 Main Street
Bastrop, TX 78602
DEFENDANT-APPELLEE PROSE

Michelle Lubbert
Tuck & Kizer, PLLC
906 Main Street
Bastrop, TX 78602
ATTORNEY FOR THE DEFENDANT - APPELLEE WILLIE EDWARD
KELLAR AND JOE GRADY TUCK




                                      Michael Glenn Mott, Appellant



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