                                                                                         ACCEPTED
                                                                                    03-12-00558-CV
                                                                                            4781058
                                                                           THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                4/7/2015 6:32:36 AM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK

                       No. 03-12-00558-CV
                                                FILED IN
______________________________________________________
                                          3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
                     IN THE COURT OF APPEALS       4/7/2015 6:32:36 AM
             THIRD COURT OF APPEALS JUDICIAL DISTRICTJEFFREY D. KYLE
                             AUSTIN, TEXAS                 Clerk



______________________________________________________________________________

    HAPPY JACK RANCH, INC. & FREDERICK J. BEHREND,
                      Appellants
                         VS.
    HH&L DEVELOPMENT, INC., MATTHEW STOLHANDSKE,
             TRUSTEE, & MICHAEL STRNAD,
                       Appellees

_______________________________________________________
      ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT,
       COMAL COUNTY, TEXAS, CAUSE NO. C2010-1022A
              HON. CHARLES RAMSEY, PRESIDING

 ____________________________________________________________________________

      APPELLEE STRNAD’S MOTION FOR REHEARING
  _________________________________________________________




                                       Ted Cackowski
                                       SBN: 03575900
                                       ATTORNEY AT LAW
                                       1141 N. Loop 1604 E. #105
                                       San Antonio, TX 78232
                                       Tele: 210 383 7277
                                       Email: TedCLaw@aol.com


                                                                                1
                       No. 03-12-00558-CV
______________________________________________________
                      IN THE COURT OF APPEALS
              THIRD COURT OF APPEALS JUDICIAL DISTRICT
                              AUSTIN, TEXAS

______________________________________________________________________________

    HAPPY JACK RANCH, INC. & FREDERICK J. BEHREND,
                      Appellants
                         VS.
    HH&L DEVELOPMENT, INC., MATTHEW STOLHANDSKE,
             TRUSTEE, & MICHAEL STRNAD,
                       Appellees

_______________________________________________________
      ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT,
       COMAL COUNTY, TEXAS, CAUSE NO. C2010-1022A
              HON. CHARLES RAMSEY, PRESIDING
 ____________________________________________________________________________



        APPELLEE STRNAD’S MOTION FOR REHEARING


TO THE HONORABLE THIRD COURT OF APPEALS:


Appellee Michael Strnad asks this Court to revisit its decision and affirm
the trial court’s award of attorneys’ fees to Michael Strnad.




                                                                                2
I. Rehearing points:

       (i)     Point One- Any error as to Appellee’s
attorneys’ fees was not preserved:

       This court reversed as to attorney’s fees,
       noting that it was error to award fees under
       the UDJA for an essentially Trespass to Try
       Title claim.      The error, which not complained
       of in the Trial Court, nor assigned as error
       or     briefed in this Court, was waived.

       (ii)    Point Two- There is statutory basis in
Property        Code    to     support       an     award     of
attorneys’fees to Appellee Strnad:

       Absent findings of fact, conclusions of law,
       objection in the trial court and briefing in
       this Court, a general pleading for attorneys’
       is     sufficient      to   support        recovery    of
       attorney’s fees under any applicable statute.
       The statutory basis for attorney’s fees in
       the Property Code is a specific remedy for an
       improper claim by an undisclosed beneficiary
       such as Behrend.       The trial court’s award of
       attorney’s      fees   to   Michael    Strnad    has    a
       statutory basis in the         Property Code          that
       was not subsumed by the less specific and

                                                                    3
    more remote          Trespass to Try Title Statute.
    As against a defendant not in possession, the
    assertion       of    an   equitable       right,      such    as
    cancellation of a deed procured by fraud, is
    not     governed      by   the      trespass-to-try-title
    statute.

    (iii)   Point        Three-    A    Appellant         Behrend’s
improper invocation of UDJA is sufficient to award
fees to a Defendant:

    A Plaintiff prosecuting what is essentially
    a Trespass to Try Title suit may not plead
    alternatively          under       the    UDJA   to    recover
    attorneys’ fees. However, a Defendant, such
    as Strnad, who is forced to defend an improper
    proceeding under the UDJA may receive his
    attorneys’       fees.             Even     if    Appellants
    erroneously          invoked     the     UDJA,   it    was    not
    error for Judge Ramsey to award attorney’s
    fees to Strnad under the UDJA necessary for
    the defense of the misconceived action.                      Even
    the absence of subject matter jurisdiction




                                                                        4
        does not deprive the defending party of fees
        once the plaintiff invokes the UDJA.

II. Introduction
   1. This is the third1 suit Behrend has prosecuted against Strnad seeking
   declaratory relief regarding the four properties that at the time of this suit
   were titled in the name of Appellee HH&L DEVELOPMENT. In this suit
   Behrend insists that the Declaratory Judgment Act required that Strnad be a
   defendant. In the 2003 default judgment Beherend obtained attorney’s fees.
   A result that was only possible because it was a default. Behrend likely will
   continue to use the judgment for attorneys in the default judgment suit to
   relentlessly pursue       Strnad     through litigation if Strnad is not awarded
   offsetting attorneys fees in this case.

   2. Coinmach did not hold that a Plaintiff erroneously prosecuting a Trespass
   to Try Title suit under the UDCJ was unwaivable error. There is line of cases
   holding to the error is waivable, including the Third Court. Appellants did
   not make the necessary complaint in the trial court to preserve error. There


   1
     In Note 1 of this Court’s opinion the Court observes : “The record is unclear as to whether
   Behrend's original petition in this prior suit sought a declaration regarding the four tracts
   at issue in this suit.” An examination of the property descriptions confirms the identity of
   the subject four properties in all three suits. See 1.) CAUSE NO. C2003-0969B, in which
   the default judgement was taken against Strnad in 2003 [Tracts IX, X, XI, XII, CR pgs,
   351, 352]; 2.) CAUSE NO. C2003-0325A, non suited after pending for six years, [Tracts
   III, IV, V, VI, CR pg. 92]; and 3.) this suit, No.C2010-1022A below, [CR pgs. 344, 345].
   Though title originated in Happy Jack Ranch, Happy Jack Ranch was not a party in the
   first two suits. Ron Flake, who was Brhrend’s attorney in 1993 provided an affidavit.
   Flakes affidavit came after Judge Ramsey’s May 25, 2012 order of dismissal [CR pg. 663].
   Mr. Flake averred [CR pg. 709] as follows:” …acting as Mr. Behrend's attorney and as
   president of Happy Jack Ranch, Inc., I conveyed properties held by Happy Jack Ranch,
   Inc. to Michael Strnad. During the year 1993 the following four tracts were conveyed to
   Mr. Stmad in this manner: [ legal descriptions of the four subject properties followed.]”
                                                                                              5
was no mention of the Trespass to Try Title statute, nor any argument that
attorneys' fees were erroneously awarded because the suit was, in substance,
a Trespass to Try Title suit. The specific ground was never complained of in
the trial court, nor assigned as error and briefed in this Court.       Behrend
expressly pled [ CR pg. 344] the UDJA and filed an affidavit for $54,139.71
in fees and expenses [CR pg. 424]. Attorney Caziers affidavit included fees,
not only this suit, but also included time and charges for C2003-0325A [ CR
pg. 411] which was non suited after pending for six years.

3. Strnad was not in possession or seeking possession of the properties.
Coinmach was a clear application of the construction maxim that that a
specific statutory scheme governs a more general scheme. As to Strnad,
Behrend sought, as an undisclosed beneficiary, a declaration for the
cancellation of a deed. The legislature, just as it provided a specific treatment
of Trespass to Try Title in the Property Code, so also provided a specific
treatment for the claims of undisclosed beneficiaries in Property Code. The
specific legislative remedy for a defendant resisting the claims of an
undisclosed beneficiary includes attorneys fees.

4. Strnad’s pleading for attorney’s fees was general and not restricted to any
specific statute. Because there were no findings of fact or conclusions of law,
the award for attorney fees should be affirmed under any applicable legal
theory. Because the claim against Strnad was for deed cancellation and Strnad
was not in possession of the property, the claim was not subsumed in the
Trespass to Try Title statute. The specific attorney’s fees remedy in the
Property Code for a party defending against an undisclosed beneficiary was
not eliminated by Coinmach.         Coinmach stands for proposition that a
“plaintiff” may not proceed alternatively under UDJA to recover its attorney's
                                                                             6
  fees. [emphasis provided]. As will be seen below a “defendant” is accorded
  different treatment. A “defendant,” such as Strnad, who is forced to defend
  a suit improperly invoking the UDJA, may recover fees under the UDJA.



III. Argument and Authorities



    A.   Point One-Error Waived


  5. The Trespass to Try Title statute was not mentioned in any brief before this
  Court, nor was it mentioned in any pleading or hearing in the trial court.

  6. In Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308 (Tex.App. —
  Amarillo 2001), as in this case, both appellant and appellee pled for and
  sought attorney's fees. The Court in Krabbe opined that any complaint that
  the suit was in essence Trespass to Try Title claim was waived:


         “Appellants did not preserve error in regard to the argument that attorneys'
         fees were erroneously awarded because the suit was, in substance, a trespass
         to try title suit. Because the error was not preserved and we have previously
         failed to find reversible error in the trial court's ruling that the lease did not
         terminate, we overrule appellant's second issue.”




                                                                                              7
7. Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308 (Tex.App. —
Amarillo 2001) was cited favorably in Wheeler v. Phillips, 03-10-00221-CV
where Justice Goodwin opined:


        “We note that Wheeler did not urge at the trial court level that appellees'
        claim for declaratory relief was in essence an action for trespass to try title.
        See Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308, 320-21 (Tex.
        App.--Amarillo 2001, pet. denied) (any error in permitting trespass-to-try-
        title claim under UDJA may be waived absent objection to that procedure);
        see also Archaeological Conservancy v. Wilson Land & Cattle Co., No. 03-
        08-00061-CV, 2010 Tex.App. LEXIS 2385, at *16 n.5 (Tex. App.--Austin
        Mar. 30, 2010, no pet.) (mem. op.).”


8. In   PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION TO
QUIET TITLE Behrend expressly pled [CR pg 344] the Declaratory
Judgments Act:



        Because this is a suit under the Declaratory Judgments Act, Defendant
        Michael Strnad is joined as a part defendant pro forma only to the extent his
        rights may be affected by any judgment of the Court.


9. It is clear that Appellant Behrend was proceeding under the Declaratory
Judgement Act. In his Motion or New Trial [CR pg. 688] Behrend argued:


        “For that reason, on January 30, 2012 Plaintiff amended its pleadings asking
        that the Court quiet title only as to the four tracts described in the deeds
        from Stolhandske to HH&L Development, Inc. Plaintiffs' live pleadings
        allege only a cause of action against HH&L Development, Inc. Stmad and
                                                                                           8
      Stolhandske are included as nominal parties only because the Declaratory
      Judgments Act requires the joinder of any party whose rights may be
      affected by the Court's ruling.”


10. Behrend also argued that his claim was invoking the UDJA in
PLAINTIFF'S RESPONSE TO DEFENDANT STRNAD'S AMENDED
MOTION TO DISMISS [CR pg 392].


11. It significant to note, that though Behrend captioned all his pleadings as
“Quiet Title ” [ CR pgs. 9, 189, 343] , Behrend’s appellate council also
characterized his suit as one for “declaratory relief. ” In Appellants’ Brief at
page 8, in note 17, appellate council argues:


      “(1 CR 215-19). Behrend’s partial summary judgment motion essentially
      reiterates the claims and arguments found within his petition for declaratory
      judgment. (1 CR 215-19).”


12. The Supreme Court explained the fundamental unfairness of allowing an
error to be complained of for the first time on appeal. In Mansions in the
Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 55 Tex.Sup.Ct. J. 624
(Tex. 2012) the Court opined:


      There are " important prudential considerations" behind our rules on
      preserving error. In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003). First,
      requiring that parties initially raise complaints in the trial court conserves
      judicial resources by providing trial courts the opportunity to correct errors
      before appeal. Id. Second, judicial decision-making is more accurate when
      trial courts have the first opportunity to consider and rule on error. Id. ("
                                                                                       9
      Not only do the parties have the opportunity to develop and refine their
      arguments, but we have the benefit of other judicial review to focus and
      further analyze the questions at issue." ). Third, a party " should not be
      permitted to waive, consent to, or neglect to complain about an error at trial
      and then surprise his opponent on appeal by stating his complaint for the
      first time." Id. (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982)
      (per curiam)). For these reasons, to preserve this issue for appeal, the
      County needed to present its complaint to the trial court.




 B.    Point Two –Statutory Basis in Property Code


13. Strnad’s prayer for attorney’s fee was general and without statutory
reference.      See FIRST AMENDED ORIGINAL ANSWER OF MICHAEL
STRNAD [CR pg. 44] as follows:


      Defendants pray that Plaintiffs take nothing, that they have their costs,
      attorney's fees and all other relief to which they may be entitled at law or in
      equity.


14. Judge Ramsey did not make any findings of facts or conclusions of law.
A general pleading will support and award of attorneys’ fees under any legal
theory. See Smith v. Deneve, 285 S.W.3d 904 (Tex.App.-Dallas 2009) as
follows:


      Second, Deneve also pleaded paragraph 16, in which she separately and
      broadly asserted that she had to hire a lawyer to defend the suit and that
      Smith should have to pay for it. There was apparently no such broad
                                                                                        10
       pleading in Kreighbaum . We conclude that Deneve's pleadings were
       sufficiently general to allow her to rely on any applicable provisions of law
       to support an award of attorneys' fees.


15. This Court cites Coinmach Corp. v. Aspenwood Apartment Corp., 417
S.W.3d 909, 926 56 Tex. Sup.Ct. J. 77 (Tex. 2013) for its conclusion that “As
such, the trespass-to-try-title statute was the appellants' exclusive remedy, and
the trial court abused its discretion by awarding attorney's fees under the
UDJA.” See Coinmach Corp., 417 S.W.3d at 926. In Coinmach, the Court
did not go so far as to say that any and all claims and statutory remedies of
all parties related to the same factual nucleus must be merged into the trespass
to try title claim of the party seeking possession. In Coinmach, the Court did
not subsume the DTPA claim and other torts into the trespass to try title
envelope.




16. There is no hint in Coinmach that the attorney’s fees allowed in a DTPA
claim, for example, would be disallowed merely because the suit also
involved a claim for possession. In this case, Strnad did not have possession
and was not claiming possession. Behrend’s only claim against Strnad, as
prayed for in his petition, was essentially for the cancellation of a deed
procured by fraud.2 That claim is not governed by the trespass-to-try-title




2
  Behrend specifically prayed: “Declaring that the deeds from Defendant Stmad to
Defendant Stolhandske, and in turn the deeds from Defendant HH&L Development, Inc.,
are void and convey no interest, ordering such deeds removed from the title to the
property and quieting title in Plaintiff Behrend;….” [CR pg 348]. [emphasis provided]
                                                                                       11
statute. In Wilhoite v. Sims, 401 S.W.3d 752 (Tex.App.-Dallas 2013) the Court
opined:


      The assertion of an equitable right, such as cancellation of a deed procured
      by fraud, is not governed by the trespass-to-try-title statute. Id. " Such an
      assertion is clearly distinguishable from the claim of right to title and
      possession of real property, which is the sine qua non of a suit in trespass to
      try title."


17. This Court credited Strnad’s defense under the trust provisions of the
Property Code as follows [Opinion pg. 8]:


      Moreover, regardless of whether Strnad held the properties in trust for
      Behrend, the existence of the trust would not render Strnad’s prior
      conveyances to Stolhandske void. Rather, the Legislature has provided that
      when “property is conveyed or transferred to a trustee in trust but the
      conveyance or transfer does not identify the trust or disclose the names of
      the beneficiaries, the trustee may convey, transfer, or encumber the title to
      the property without subsequent question by a person who claims to be a
      beneficiary under the trust.” Tex. Prop. Code § 114.082.




18. The legislature permits a person, such as Strnad, who must defend the
claims of an undisclosed beneficiary, Behrend here, to recovery attorney’s
fees. Tex. Prop. Code § 114.064 provides as follows:




                                                                                        12
      (a) In any proceeding under this code the court may make such award of

      costs and reasonable and necessary attorney's fees as may seem equitable
      and just.


19. Because Judge Ramsey made no findings of fact or conclusions of law ,
this Court this Court should affirm based on any applicable legal theory. In
Holt v. Kelso, 03-11-00258-CV this Court stated the well established law:


      We therefore imply "that the trial court made all findings necessary to
      support its judgment." See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
      1990); see also BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
      794 (Tex. 2002); Brazos River Auth. v. Gilliam, 429 S.W.2d 949, 951 (Tex.
      Civ. App.-Fort Worth 1968, writ ref'd n.r.e.) (noting that letter of trial court
      "helpful in giving the trial court's view of the controversy" but that appellate
      court was "governed by well recognized rule" that, "in the absence of
      findings of fact and conclusions of law the appellate court will presume that
      all fact issues having support in the evidence were found in support of the
      judgment"). We also must affirm the judgment "if it can be upheld on any
      legal theory that finds support in the evidence." Worford, 801 S.W.2d at
      109; see BMC Software, 83 S.W.3d at 794.


20. The Court in Coinmach Corp. v. Aspenwood Apartment Corp., 417
S.W.3d 909, 56 Tex. Sup.Ct. J. 77 (Tex. 2013) did not extend its ruling to all
situations indirectly related to “determinations of possessory interests in
property” :


      Aspenwood points out that, since our decision in Martin, some courts of
      appeals have held that the UDJA remains an appropriate alternative avenue
                                                                                         13
      to determine property interests, at least when the dispute involves
      construction of a written agreement. See, e.g., Roberson v. City of Austin,
      157 S.W.3d 130, 133 (Tex.App.-Austin 2005, no pet.) (UDJA available to
      determine validity of an easement agreement); Florey v. Estate of
      McConnell, 212 S.W.3d 439, 449 (Tex.App.-Austin 2006, pet. denied)
      (UDJA available in suit to determine validity of deed of trust). While we
      neither approve nor disapprove of the holdings in these cases, we note that
      they distinguish themselves from cases that involve determinations of
      possessory interests in property. Roberson, 157 S.W.3d at 136; Florey, 212
      S.W.3d at 449.


21. Like the cases distinguished in Coinmach, the claims against Strnad were
not for possession because Strnad was not in possession. Florey v. Estate of
McConnell, 212 S.W.3d 439 (Tex.App.—Austin 2006) was one of the cases
distinguished in Coinmach, see above. The Court in Florey opined that the
legislature likely did not intend for the trespass to try title statute to displace
every other statutory remedy however indirectly related to a claim for
possession. In Florey the Court opined:


      Although a declaration regarding the validity of the deed of trust could
      ultimately have impacted title and possessory rights to the property, we
      doubt that the legislature intended for the trespass-to-try title statute to
      displace or subsume every statutory or common law claim (e.g., suits to
      rescind deeds) having such an impact. See generally 17 William V.
      Dorsaneo, Texas Litigation Guide § 257.01[3] [a], [4] (2005). The Estate's
      suit has a more indirect impact on title and possession to real property than
      the boundary dispute in Martin, and we conclude that its rationale does not
      apply here.



                                                                                      14
22. Behrend was seeking possession and title from Appellee HH&L
DEVELOPMENT. Strnad did not have possession. Behrend’s claims and
express prayer in his last live pleading were clear that his claims against
Strnad sought in essence cancellation of a deed allegedly procured by fraud.
Such a claim is not a suit in trespass to try title. As the Court explained in
Wilhoite v. Sims, 401 S.W.3d 752 (Tex.App.-Dallas 2013).


       The issue in this case was whether the quitclaim deed was voidable by
      being obtained by fraud, not whether Wilhoite's title was superior to Sims's.
      A suit for cancellation of a deed is an assertion of an equitable right, namely,
      the right to have a voidable deed cancelled. It is not a claim of right to title
      and possession of real property. See Tompkins v. Holman, 537 S.W.2d 98,
      99 (Tex.Civ.App.-Austin 1976, writ ref'd n.r.e.). The assertion of an
      equitable right, such as cancellation of a deed procured by fraud, is not
      governed by the trespass-to-try-title statute. Id. " Such an assertion is
      clearly distinguishable from the claim of right to title and possession of
      real property, which is the sine qua non of a suit in trespass to try title."
      Id.   [emphasis added]




 C.    Point Three-Improper Invocation of UDJA is sufficient


23. An improper invocation of the UDJA is sufficient basis for a court to
award attorneys’ to the defending party. See Devon Energy Production Co.,
L.P. v. KCS Resources, LLC, 14-13-00348-CV as follows:




                                                                                         15
      Under the UDJA, the trial court has authority to award attorneys' fees and
      costs "[i]n any proceeding under this chapter." See Tex. Civ. Prac. & Rem.
      Code § 37.009. By seeking declaratory relief, Devon initiated a "proceeding
      under this chapter" that falls squarely within the plain language of Section
      37.009.

      …
      Devon "invoked" the UDJA through its pleadings. KCS, therefore, was
      eligible to recover its attorneys' fees as a party defending a claim for
      declaratory relief. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 641–
      43 (Tex. 2005); Bradt, 905 S.W.2d at 759–60; see also Corcoran v.
      Atascocita Cmty. Improvement Ass'n, Inc., No. 14-12-00982-CV, 2013 WL
      5888127, at *9–12 (Tex. App.— Houston [14th Dist.] Oct. 31, 2013, pet.
      denied) (mem. op.) (affirming award of attorney's fees to third-party
      defendant against whom appellants filed suit). Therefore, regardless of
      whether Devon prevailed on its own claims, the trial court had jurisdiction
      over KCS's attorneys' fee claim for the defense of that litigation.


24. The Court in Devon further opined that even the absence of subject matter
jurisdiction does not deprive the defending party of fees once the plaintiff
invokes the UDJA :

      According to the Texas cases interpreting the UDJA on which KCS relies,
      the absence of subject matter jurisdiction over Devon's claims at the
      inception of the litigation has no effect on whether KCS could recover its
      fees under the UDJA for defending against them when Devon's pleadings
      invoked the statute. We therefore sustain KCS's cross-issue


25. As detailed above above, Behrend’s counsel expressly pled in the trial
court and argued in his Motion for New Trial that his petition was cast under

                                                                                     16
the Declaratory Judgment Act. That characterization was reiterated by
appellate counsel in their briefing in         this Court.      The word “trespass” is
never used in any brief in this Court, nor in any of Behrend’s three petitions
in the trial Court. Strnad was not in possession of the property. The only claim
involving Strnad, as prayed for in Behrend’s petitions, was essentially for
the cancellation of a deed procured by fraud. That claim is not governed by
the   trespass-to-try-title statute. In Wilhoite v. Sims, 401 S.W.3d 752
(Tex.App.-Dallas 2013) the Court opined:


      The assertion of an equitable right, such as cancellation of a deed procured
      by fraud, is not governed by the trespass-to-try-title statute. Id. " Such an
      assertion is clearly distinguishable from the claim of right to title and
      possession of real property, which is the sine qua non of a suit in trespass to
      try title."


26. In “PLAINTIFFS' ORIGINAL PETITION TO QUIET TITLE” [CR pg.
16] Behrend alleged as follows:


      6. Cause of Action Against Defendants Stolhandske and Strnad. As shown
      by the Default Judgment this Court has already judicially declared that
      Defendant Strnad owns and owned no title whatsoever to the properties in
      question. Plaintiffs allege that the special warranty deeds from Defendant
      Strnad to Defendant Stolhandske are void as a matter of law and convey no
      interest whatsoever to Defendant Stolhandske. Said deeds constitute a cloud
      on Plaintiffs title and the Court should declare such deeds void and
      ineffective and quiet title in Plaintiff Behrend. [emphasis added]
      …



                                                                                        17
        8. All Parties Joined. All persons who have or claim any interest that may
        be affected by this Court's declarations have been made parties to this suit.
        9. Attorney's Fees. Plaintiffs seek all reasonable and necessary attorney's
        fees in this case, which include the following:


  27. “PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION TO QUIET
  TITLE” restated the same claim against Strnad verbatim. [ CR pg.195]. See
  also Behrend’s second amended petition [CR pg. 348]. In Behrend’s Motion
  for New Trial he forcefully argued that he was proceeding under the
  Declaratory Judgement Act [CR pg. 688]:


        “For that reason, on January 30, 2012 Plaintiff amended its pleadings asking
        that the Court quiet title only as to the four tracts described in the deeds
        from Stolhandske to HH&L Development, Inc. Plaintiffs' live pleadings
        allege only a cause of action against HH&L Development, Inc. Stmad and
        Stolhandske are included as nominal parties only because the Declaratory
        Judgments Act requires the joinder of any party whose rights may be
        affected by the Court's ruling.” [emphasis added]



IV. Conclusion and Prayer


  28. All the years (now 12) of Behrend’s relentless pursuit of Strnad was
  predicated upon his claim that Strnad was his trustee. The bogus nature of
  Behrend’s claimed status as Strnad’s beneficiary that underpinned the 2003
  default Judgment against Strnad was confessed in affidavit of Behrend’s
  attorney Ron Flake to be bogus. For reasons that are not clear, the affidavit
  [CR pg 709] was filed after Judge Ramsey had ruled. According to Flake,

                                                                                        18
title proceeded directly from Happy Jack to Strnad. There was no mention of
a trust in Flake’s affidavit. Behrend was simply a majority shareholder.

29. Behrend will continue to use the judgment for attorneys in the 2003
default judgment suit to relentlessly pursue Strnad through litigation if Strnad
is not awarded offsetting attorneys fees in this case.

30. For the above reasons, the Court is requested to reconsider it reversal of
attorneys’ fees and credit the discretion of Judge Ramsey who was familiar
with the parties and the facts.

.




                                                                             19
                            Respectfully submitted,

                            /s/ Ted Cackowski
                            _________________________
                            TED CACKOWSKI
                            SBN: 03575900

                            1141 N. Loop 1604 E. #105
                            San Antonio, TX 78232
                            Tele: 210 383 7277
                            Facs: 866-271-5336
                            Email: TedCLaw@aol.com
                            ATTORNEY FOR APPELLEE
                            MICHAEL STRNAD




                    CERTIFICATE OF COMPLIANCE


I hereby certify that the foregoing document contains 3901 words
according to the word count of the computer program used to prepare it, in
compliance with Rule 9.4(i)(2), excluding exempt items.


                                                   /s/ Ted Cackowski


                                                                             20
                        CERTIFICATE OF SERVICE
I hereby certify by my signature below that a true and correct copy of
the foregoing document has been served on counsel of record for all parties
via E-filing on the date it was filed.


                                             /s/ Ted Cackowski


Ms. Kimberly S. Keller
Keller Stolarczyk, P.L.L.C.
234 West Bandera Road, #120
Boerne, TX 78006

Shane Stolarczyk
SBN: 24014182
KELLER STOLARCZYK PLLC
234 West Bandera Road #120
Boerne, Texas 78006

Allen Cazier,
Law Offices of Allen Cazier
8626 Tesoro Drive, Suite 500
San Antonio, Texas 78217

Mr. Pascual Madrigal
Law Offices of Pascual Madrigal
9504 N. IH 35, Suite 316
San Antonio, TX 78233

Mr. Matt C. Stolhandske
1004 South St. Mary’s
San Antonio, TX 78205




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