                                                                                           ACCEPTED
                                                                                       04-15-00041-CV
                                                                           FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                  5/21/2015 3:30:40 PM
                                                                                        KEITH HOTTLE
                                                                                                CLERK

                       CAUSE NO. 04-15-00041-CV
       _______________________________________________________
                                                                      FILED IN
                                                               4th COURT OF APPEALS
                                    IN THE                      SAN ANTONIO, TEXAS
                                                               05/21/2015 3:30:40 PM
                       FOURTH COURT OF APPEALS                     KEITH E. HOTTLE
                                                                        Clerk
                             SAN ANTONIO, TEXAS
                                ___________

                       TEMPLETON MORTGAGE COMPANY
                                 Appellant

                                       V.

                              GARY M. POENISCH
                                  Appellee
                                ___________

        On appeal from the 216th District Court of Kendall County, Texas


                             APPELLANT’S BRIEF


                                                  Respectfully Submitted,

                                            LAW OFFICE   OF   KEITH C. THOMPSON,
P.C.
                                                   11003 Quaker Avenue
                                                   Lubbock, Texas 79424
                                                 Telephone: (806) 783-8322
                                                 Facsimile:    (806) 783-8357
                                                    Email: kct@kctlaw.us

                                                By:   /s/ Keith C. Thompson
                                                    Keith C. Thompson
                                                      SBN: 24013631
                                             ATTORNEY FOR APPELLANT/DEFENDANT
ORAL ARGUMENT IS REQUESTED
                      IDENTITY OF PARTIES AND COUNSEL


TEMPLETON MORTGAGE COMPANY
Represented by:
     Keith C. Thompson
     Law Office of Keith C. Thompson, P.C.
     11003 Quaker Avenue
     Lubbock, Texas 79424
     Telephone: (806) 783-8322
     Facsimile: (806) 783-8357
     Email:      kct@kctlaw.us

APPELLANT



GARY M. POENISCH
Represented by:
     Gary M. Poenisch, P.L.L.C.
     206 E. Locust Street, Suite 218
     San Antonio, Texas 78212
     Telephone: (210) 212-6700
     Telecopier: (210) 212-2178

APPELLEE




                                       i
                                             TABLE OF CONTENTS

INDEX OF AUTHORITIES ............................................................................................iii

STATEMENT OF THE CASE ..........................................................................................v

STATEMENT REGARDING ORAL ARGUMENTS ...........................................................vi

ISSUES PRESENTED FOR REVIEW ...............................................................................vi

STATEMENT OF FACTS ...............................................................................................1

SUMMARY OF THE ARGUMENT ...................................................................................2

ARGUMENT AND AUTHORITIES ..................................................................................3

    I. This Court should reverse the decision of the 216th District Court of
       Kendall County because it abused its discretion by granting default
       judgment against Templeton Mortgage Company since it was deprived
       of due process. ................................................................................................3

         A. Standard of review is abuse of discretion. ................................................3

         B. TMC’s right to due process was violated because it did not receive
            45 days notice of the default judgment hearing, as such, the hearing
            was void and default judgment was improper. ..........................................4

              i. TMC did not receive the required 45 days notice for trial settings,
                 so the hearing and all actions during the hearing are void. ..................6

         C. The notice served on TMC was defective and thus, the default
            judgment hearing was void. ......................................................................7

CONCLUSION AND PRAYER ........................................................................................8

CERTIFICATE OF SERVICE .........................................................................................10

CERTIFICATE OF COMPLIANCE .................................................................................11

APPENDICES .............................................................................................................12

                                                            ii
                                        INDEX OF AUTHORITIES

CASE LAW
Armstrong v. Mazano,
     380 U.S. 545 (1965) ........................................................................................4

Bradford v. Bradford,
      971 S.W.2d 595 (Tex. App.—Dallas 1998, no pet.) .......................................4

Coastal Banc SSB v. Helle,
     48 S.W.3d 796 (Tex. App.—Corpus Christi, 2001 pet. denied) .....................4

Craddock v. Sunshine Bus Lines, Inc.,
     133 S.W.2d 124 (Tex. 1939) ...........................................................................3

Delgado v. Hernandez,
     951 S.W.2d 97 (Tex. App.—Corpus Christi 1997, no writ) ...........................4

Fishing Publ’n Inc. v. Williams,
      661 S.W.2d 323 (Tex. App.—Corpus Christi 1982, no writ) .........................5

In re $475.001.16,
       96 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2002, no pet.).....................4

LBL Oil Co. v. Int’l Power Servs., Inc.,
     777 S.W.2d 390 (Tex. 1989) ......................................................................4, 5

Lopez v. Lopez,
      757 S.W.2d 721 (Tex. 1988) ...........................................................................3

Mabon Ltd. v. Afri-Carib Enters., Inc.,
    369 S.W.3d 809 (Tex. 2012) .......................................................................3, 5

Mullane v. Cent. Hanover Bank & Trust Co.,
     339 U.S. 306 (1950) ........................................................................................5

Peralta v. Heights Med. Ctr. Inc.,
      485 U.S. 80 (1988) ..........................................................................................3


                                                         iii
Perkins v. City of San Antonio,
      293 S.W.3d 650 (Tex. App.—San Antonio 2009, no pet.) .............................5

RULES
TEX. R. CIV. P. 21 ...........................................................................................2, 5, 7, 8

TEX. R. CIV. P. 245 .............................................................................................5, 6, 8




                                                           iv
                             STATEMENT OF THE CASE

      This is a suit involving a dispute over real property. The primary dispute

arose between Michael Middleton and Templeton Mortgage Company. Gary M.

Poenisch intervened against Templeton Mortgage Company. The issue on appeal

is whether the trial court abused its discretion by granting default judgment in

favor of Poenisch when Templeton Mortgage Company was deprived of due

process by not receiving the proper notice of the hearing on default judgment.

      The Honorable Bill Palmer of the 216th District Court of Kendall County,

Texas, presided over the trial. Judge Palmer signed the Order Setting Hearing on

October 10, 2015. (Order Setting Hearing). The Certificate of Service was sent on

October 9, 2015. (Certificate of Service). Templeton Mortgage Company had

previously appeared in other proceedings of the trial, but the trial court struck all of

their pleadings at the hearing on default judgment. (Default Judgment Order, p. 1).

The trial court granted default judgment in favor of Poenisch and against

Templeton Mortgage Company on all of Poenisch’s claims. Templeton Mortgage

Company now appeals.




                                           v
                       STATEMENT OF ORAL ARGUMENTS

      Appellant hereby requests the opportunity to present this matter by oral

argument.



                         ISSUE PRESENTED FOR REVIEW

      Did the trial court err by granting default judgment for Poenisch when

Templeton Mortgage Company was deprived of due process by not receiving the

proper 45 day notice of the hearing on default judgment?




                                        vi
                               STATEMENT OF FACTS

      Michael Middleton (“Middleton”) sued Templeton Mortgage Company

(“TMC”) for reasons unrelated to this appeal. TMC appeared in the proceedings.

Gary M. Poenisch (“Poenisch”) intervened and asserted claims against TMC. TMC

found itself without an attorney, and on August 18, 2014 the trial court gave TMC

a certain amount of days to find an attorney. TMC did not find an attorney to

represent the company. Poenisch filed a Motion to Enter Default Judgment and

Request for Severance.

      A hearing on the Motion for Default Judgment and Request for Severance

was scheduled for October 15, 2014. (Order Setting Hearing). The Honorable Bill

Palmer signed the Order Setting Hearing on October 10, 2014. (Order Setting

Hearing). The Certificate of Service, however, was dated October 9, 2014. (Order

Setting Hearing).

      Prior to the hearing on the default judgment, TMC’s pleadings were not

struck. There is no previous order striking the pleadings filed in this matter. At the

October 15 hearing, the court struck TMC’s pleadings because TMC did not find

an attorney to represent the company. (Default Judgment Order, p. 1). The court

struck TMC’s pleadings even though TMC appeared through an attorney at earlier

proceedings. (Default Judgment Order, p. 1).




                                          1
      After striking TMC’s prior pleadings, the court entered default judgment in

favor of Poenisch (Default Judgment Order p. 1). Specifically, the court ruled the

deeds held by TMC were null and void, and TMC never owned the real property,

which was the subject of the suit. (Id. at p. 1–2). The court also awarded Poenisch

attorney fees against TMC. (Id. at p. 2).

                           SUMMARY OF THE ARGUMENT

      The trial court abused its discretion by granting default judgment in favor of

Poenisch because TMC was deprived of due process when TMC was not properly

noticed of the hearing on default judgment. TMC should have received notice of

the hearing at least 45 days in advance because it was a dispositive hearing.

Without proper notice, the hearing was a violation of due process and, as such, was

void. Because the hearing was void, the court abused its discretion by striking

TMC’s pleadings and granting default judgment in favor of Poenisch.

      Further, the Certificate of Service and the Order Setting Hearing were

facially invalid and did not comply with TEX. R. CIV. P. 21(d). The Order Setting

Hearing was signed on October 10, 2014, but the Certificate of Service was sent on

October 9, 2014. Even if the incorrect date was a minor clerical error, the 45 day

requirement was not met.

      Thus, the Default Judgment Order was improper and this Court should

reverse the judgment of the trial court.



                                            2
                           ARGUMENT AND AUTHORITIES

   I. This Court should reverse the decision of the 216th District Court of
      Kendall County because it abused its discretion by granting default
      judgment against Templeton Mortgage Company since it was deprived
      of due process.

      A. Standard of review is abuse of discretion.

      A default judgment should be set aside and a new trial granted if the

defendant can show (1) its failure to answer before judgment was not intentional or

the result of conscious indifference, but due to mistake or accident; (2) the

defendant has a meritorious defense; and (3) the granting of a new trial will not

cause delay or otherwise cause injury to the plaintiff. Craddock v. Sunshine Bus

Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). However, where a defendant has

previously appeared, and does not receive proper notice of a trial, the defendant is

denied its due process rights of the Fourteenth Amendment and default judgment is

improper. Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex.

2012). Further, where notice is not received, the defendant is not required to show

a meritorious defense. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988). A

requirement to show a meritorious defense violates the defendant’s right to due

process of law. Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80, 84 (1988). Also,

the lack of notice renders a showing of accident or mistake on the part of the

defendant unnecessary. See Mabon, 369 S.W.3d at 813. Thus, a judgment entered

without notice to the defendant is constitutionally infirm. Id.

                                           3
      B. TMC’s right to due process was violated because it did not receive 45
         days notice of the default judgment hearing, as such, the hearing was
         void and default judgment was improper.

       Since TMC did not receive the required 45 days notice of the default

judgment hearing, TMC’s right to due process was violated, so the proceedings of

the hearing are void and default judgment was not appropriate.

       A trial setting is any trial or hearing that is dispositive of the case. LBL Oil

Co. v. Int’l Power Services, Inc., 777 S.W.2d 390, 391 (Tex. 1989); In re

$475,001.16, 96 S.W.3d 625, 627–628 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). Default judgment hearings are trial settings because they are dispositive of

the case, in that the claims are fully and finally decided in favor of one party or the

other. See Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex. App.—Dallas 1998,

no pet.) (citing LBL Oil, 777 S.W.2d at 391); Coastal Banc SSB v. Helle, 48

S.W.3d 796, 801 (Tex. App.—Corpus Christi 2001, pet. denied). If a party has

previously appeared in trial proceedings, that party is entitled to notice of the trial

setting as a matter of due process. Delgado v. Hernandez, 951 S.W.2d 91, 99 (Tex.

App.—Corpus Christi 1997, no writ). Failure to give notice of a trial setting

deprives the defendant of the opportunity to be present at the hearing, voice

objections, and argue his position to the judge. Id.; Coastal Banc, 48 S.W.3d at

801. Depriving a party of the opportunity to present their case at trial is a

deprivation of fundamental requirements of due process. Armstrong v. Manzo, 380



                                           4
U.S. 545, 550 (1965); see also Mullane v.Cent. Hanover Bank & Trust Co., 339

U.S. 306, 314 (1950).

       In Texas, notice of trial settings and hearings are governed by TEX. R. CIV.

P. 245, which states a defendant must be given at least 45 days notice of a setting

for trial. Under TEX. R. CIV. P. 21(b), however, notice of a hearing must be served

upon all parties at least three days before the date of the hearing. Although these

rules seemingly conflict, Rule 21 does not apply to trial settings. Perkins v. City of

San Antonio, 293 S.W.3d 650, 654 (Tex. App.—San Antonio 2009, no pet.) (citing

Fishing Publications, Inc. v. Williams, 661 S.W.2d 323, 325 (Tex. App.—Corpus

Christi 1982, no writ)). When a party has previously appeared an “[e]ntry of a

post-answer default judgment against a defendant who did not receive notice of the

trial setting or dispositive hearing constitutes a denial of due process under the

Fourteenth Amendment of the United States Constitution.” Mabon Ltd. v. Afri-

Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex. 2012) (citing LBL Oil, 777

S.W.2d at 390–91).

       Here, the default judgment hearing was a trial setting because default

judgments are dispositive of the case. Templeton had previously appeared in the

action and answered the original proceeding against Middleton. Default Judgment

Order p. 1. Poenisch intervened and filed a Motion to Enter Default Judgment,

which the trial judge signed on October 10, 2014. Order Setting Hearing p. 1. The



                                          5
hearing on default judgment was set for October 15, 2014. Id. The Order Setting

Hearing was served on TMC on October 9, 2014. Certificate of Service. Prior to

the October 15, 2014 hearing, TMC’s pleadings were never struck.

      As a trial setting, TEX. R. CIV. P. 245 requires 45 day notice be given rather

than 3 days notice. To meet this requirement TMC should have received notice of

the hearing by August 31, 2014 at the latest. TMC received the notice on October

9, 2014, just seven days before the hearing on default judgment. This notice

violated TEX. R. CIV. P. 245, and the violation deprived TMC of its right to due

process because TMC did not have the opportunity to be present at the hearing, to

voice its objections, and to present its case before the court. While TMC did not

retain an attorney, this is not grounds to deprive TMC of due process.

       The actions of the trial court were a clear abuse of discretion because TMC

was not properly noticed and was deprived of due process. As such, the October

15 hearing was void, and all actions and rulings made during the hearing are also

void. This abuse of discretion constitutes reversible error.

         i. TMC did not receive the required 45 days notice for trial settings,
            so the hearing and all actions during the hearing are void.

       TMC’s right to due process was violated when TMC did not receive 45 days

notice of the default judgment hearing. Hence, the hearing was void, and all

actions and decisions the trail court made at the hearing constitute an abuse of

discretion.

                                          6
       The trial court’s main action at the hearing was to strike all TMC’s previous

pleadings. Trial Transcript p. 4 lines 20–23. Prior to the default judgment hearing,

TMC’s pleadings had never been struck. The only way the trial court could grant a

default judgment was to strike TMC’s pleadings. Since the default judgment

hearing was void, striking TMC’s pleadings was wrong, and thus default judgment

was not appropriate. The default judgment resulted in an incorrect ruling against

TMC. The default judgment wrongly granted relief to Poenisch, declared TMC’s

Substitute Trustee’s Deed and the Deed of Trust invalid, and allowed Poenisch to

recover attorney fees from TMC. Default Judgment Order p. 1.

      The default judgment hearing, without proper notice, deprived TMC of due

process. Thus, the hearing was void. Because the hearing was void, TMC’s

pleadings should not have been struck. As result, default judgment was improper.

This Court should reverse the default judgment because the trial court abused its

discretion when it violated TMC’s right to due process.

     C. The notice served on TMC was defective and thus, the default
        judgment hearing was void.

     The certificate of service did not comply with TEX. R. CIV. P. 21(d) because

the date of service was incorrect.

     Texas Rule of Civil Procedure 21(d) governs the certificate of service

required on all motions, pleadings, and applications to the court. TEX. R. CIV. P.

21(d). Under Rule 21(d) the “party or attorney of record, must certify to the court

                                         7
compliance with this rule in writing over signature on the filed pleading plea,

motion, or application.” Id.

     Here, the Certificate of Service sent by Poenisch’s counsel was facially

invalid because the corresponding dates from the Order Setting Hearing and the

Certificate of Service are incompatible. The trial judge signed the Order Setting

Hearing on October 10, 2014. The Certificate of Service, however, was sent on

October 9, 2014. The Certificate of Service states that it accompanies “a true and

correct copy” of the Order Setting Hearing. The trial judge could not have signed

the Order Setting Hearing after the Certificate of Service was sent. So the

Certificate of Service is either not true or not correct. Even if the incorrect date was

a minor clerical error, the notice still violated TMC’s due process because the

notice did not meet the 45 day requirement.

     Thus, the Certificate of Service and Order Setting Hearing were facially

invalid. As such, notice to TMC was invalid because the 45 day requirement was

not met, as such the October 15 hearing was void and default judgment was

improper.

                               CONCLUSION AND PRAYER

     TMC did not receive the proper 45 day notice of the default judgment hearing

required by TEX. R. CIV. P. 245. The failure to comply with this requirement

resulted in the deprivation of TMC’s right to due process. As such, the hearing was



                                           8
void and all actions, findings, and rulings of the trial court are null and void. Thus,

the trial court abused its discretion when it wrongfully struck TMC’s prior

pleadings, and improperly granted default judgment to Poenisch.

       WHEREFORE, PREMISES CONSIDERED TMC respectfully requests that this

Court reverse the judgment of the trial court, and grant all other relief to which

TMC is justly entitled both at law and equity.



                                                      Respectfully Submitted,

                                               LAW OFFICE   OF   KEITH C. THOMPSON,
P.C.
                                                      11003 Quaker Avenue
                                                      Lubbock, Texas 79424
                                                    Telephone: (806) 783-8322
                                                    Facsimile:    (806) 783-8357
                                                       Email: kct@kctlaw.us

                                                   By:   /s/ Keith C. Thompson
                                                       Keith C. Thompson
                                                         SBN: 24013631
                                                ATTORNEY FOR APPELLANT/DEFENDANT




                                           9
                             CERTIFICATE OF SERVICE

      I, Keith C. Thompson, Attorney for Appellant herein, do certify that on the

21st day of May 2015, I mailed by Electronic Mail a true and correct copy of

Appellant’s Brief to:

Gary M. Poenisch
Gary M. Poenisch, P.L.L.C.
206 E. Locust Street, Suite 218
San Antonio, Texas 78212
Telephone: (210) 212-6700
Telecopier: (210) 212-2178


      I further certify that on the 21st day of May 2015 I mailed by Electronic

Mail, an original and five true and correct copies of Appellant’s Brief for filing to:

Fourth Court of Appeals of Texas
Cadena-Reeves Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205-3037




                                           10
                        CERTIFICATE OF COMPLIANCE

      This document complies with the word-count limitations of TEX. R. APP. P.

9.4(i) because it contains 2,074 words, excluding the parts exempted by TEX. R.

APP. P. 9.4(i)(1).


                                               By:    /s/ Keith C. Thompson
                                                     KEITH C. THOMPSON




                                       11
                                                    APPENDICES

Default Judgment Order ............................................................................................1

Trial Transcript ..........................................................................................................2

Order Setting Hearing and Certificate of Service......................................................3




                                                             12
                         TAM I      L.   W0 L F F
                            Court    Reporter
                     Kendall     Co u nty Courthouse
                  201    E. San Antonio, Suite      212          FILED IN
                         Boerne, Texas   78006            4th COURT OF APPEALS
                            (830)    331-8286              SAN ANTONIO, TEXAS
                   tami.wolff@co.kendall.tx.us            05/21/2015 3:30:40 PM
                                                              KEITH E. HOTTLE
                                                                   Clerk
DATE :   JANUARY 1 3 ,   2015                     INVOICE NO . 003 - 15
TO :     TEMPL ETON MORTGAGE CORPORATION
         5109 82ND STREET , SUITE 7121
         LUBBOCK , TEXAS   70424
         PHONE : (806) 745 - 9965


RE:      CAUSE NO . 10 - 422
         MICHAEL MIDDLETON                        IN THE COUNTY COURT
         VS .                                                   AT LAW
         TEMPLETON MORTGAGE CO .                KENDALL COUNTY , TEXAS




ORIGINAL & ON E COPY OF THE REPORTER ' S RECORD :
         DATE TAKEN :     10-15-14


         TRANSCRIPT :                                             $75 . 00




TOTAL COST :                                                      $75.00

AMOUNT PAID:                                                   - $75 . 00



AMOUNT DUE:                                                       $00
                                                                                    1




,   -----

             1                               NO. 10- 422
             2
             3   MICHAEL C. MIDDLETON                      IN THE DISTRICT COURT
             4
             5   VS .                                 216TH JUDICIAL DISTRICT
             6
                 TEMPLETON MORTGAGE
             7   CORPORATION, JERRY W.
                 CORBIN , TRUSTEE, B.D.
             8   ADKINS, TRUSTEE, PATTY
                 CORBIN , TRUSTEE, AND ENOS
             9   HAMPTON INDEPENDENT EXECUTOR
                 OF THE ESTATE OF BETTY G.
            10   ROBINSON                                  KENDALL COUNTY , TEXAS
            11
            12
            13
            14                        REPORTER'S RECORD
            15
            16
            17                  On the 15th day of October 2014, the
            18   following proceedings came on to be heard in the
            19   above-entitled and numbered cause before the Honorable
            20   Bill Palmer , Judge presiding, he l d in Boerne , Kendall
            21   County , Texas .
            22                  Proceedings reported by machine
            23   stenographic method .
            24
            25



                                    TAMI L . WOLFF,   C. S.R .
                                    PHONE:     (830) 331-8286
                                                2




 1                A P PEA RAN C E S:
 2
 3   MR . KENNETH E. GRUBBS
     Attorney a t Law
 4   4241 Woodcock , Suite C- 120
     San Antonio, Texas 78228
 5   Phone:   (210) 490 - 1292
     ATTORNEY FOR THE PLAINTIFF
 6
 7
 8           - AND -
 9
10
     MR. STEVEN B. TREU
11   LANGLEY & BANACK
     Attorneys at Law
12   745 E. Mulberry, Suite 900
     San Antonio, Texas 78212
13   Phone:   (210) 736 - 6600
     ATTORNEY FOR THE DEFENDANTS
14
15
16
17
18
19
20
21
22
23
24
25



                   TAMI L. WOLFF ,   c. S.R .
                  PHONE:   (830 ) 331-8286
                                                                         3




 1                        PRO C E E 0 I N G S
 2
 3                    THE COURT :    Okay .     The Templeton case .
 4   Tell me what we ' re doing today .         I remember b e fore
 5   that Templeton was out without an attorney .            And were
 6   they here last time?      Was there somebody with
 7   Templeton?
 8                 MR . TREU :      Well , the law firm of Law ,
 9   Snackard & Gamble was here for the withdrawal .
10                    THE COURT:     Okay.     And then we gave them
11   notice to get --
12                 MR. TREU:        Yes , sir.
13                 THE COURT :       -- an attorney within "X"
14   number of days and they failed to --
15                 MR. TREU :       Here is a copy of the order .
16   It was the 26th that you gave them , and there has not
17   been an appearance .
18                 THE COURT :       Okay .    And who are you?
19                 MR. GRUBBS:        I ' m Ken Grubbs on b e hal f of
20   the Plaintiff.     Essentially, Steve and I are do i ng the
21   same thing today , Your Honor .
22                 THE COURT:       Okay .
23                 MR. GRUBBS:        We filed a motion for
24   default judgment based on -- I wasn't aware -- we were
25   supposed to have an as s ociate here when Steve was



                          TAMI L.   WOLFF,    C. S.R .
                          PHONE:    (830) 331-8286
                                                                       4




 1   doing what he did the last time we were in court.           And
 2   apparently, my associate may have misinformed me about
 3   his presence here in the court.        So, I wasn't aware
 4   that the answer had been struck and that they had been
 5   given a --
 6                 THE COURT:     Okay.
 7                 MR. GRUBBS:     -- number of days to get
 8   counsel and respond.
 9                 THE COURT:     Yes, sir.
10                 MR. GRUBBS:     And based on that fact, we
11   filed and served on everybody i nvolved, including
12   Steve, our own motion for default judgment.
13   Effectively, the motions are the same thing.         They're
14   just for the different parties and they have different
15   claims for
16                 THE COURT:     Well, I gave them the right
17   within "X" number of days to get an attorney, which is
18   what the case law says on this.        And then --
19                 MR. GRUBBS:     Right.
20                 THE COURT:     -- as a result, Slnce they
21   haven't gotten an attorney as of this date, then I'll
22   strike their answer, which lets both of you go forward
23   with a default.
24                 MR. TREU:     I'm asking for a severance,
25   Your Honor.   There was some other issues still left



                       TAMI L.   WOLFF,   C.S.R .
                       PHONE:    (830) 331 - 8286
                                                                      5




 1                   THE COURT:     What else should be left
 2   after -- do you have a default order?
 3                   MR. GRUBBS:     I do, Your Honor, against
 4   Templeton.     The estate is left -- as of today, I
 5   haven't checked whether they have a counter- claim or
 6   not.     And so, I'm not asking for a severance because I
 7   -- I assume that once the estate realizes we don't
 8   care anymore about the remainder of the case,
 9   hopefully we'll agree to do mutual nonsuits and walk
10   away from -- from there.       And they've been given
11   notice of the hearing this morning as well, Judge.
12                   THE COURT:     I know.     I've got
13   correspondence from them.
14                   MR. GRUBBS:     So -- and so, that's
15   effectively where we're at.       I have an affidavit for
16   my legal fees and I think Steve has got one as well.
17                   MR. TREU:     Mine is on file as well.
18                   THE COURT:     Okay.     Do you have your
19   order?
20                   MR. GRUBBS:     I have my own default.      Your
21   Honor, I did       I was looking at Steve's order and
22   realized that I left something out on the legal fees
23   relating to new trial and appeal, and so I handwrote
24   it at the bottom here, Judge.          So, there is some of my
25   chicken scratch here.



                         TAMI L. WOLFF, C.S.R.
                         PHONE:    (830) 331-8286
                                                                       6




 1                 THE COURT:       I don ' t see that happening ,
 2   but do whatever you want.        If you can't get an
 3   attorney for th i s , I don 't see you going much further.
 4   Do they have any money?       Is there any money in this?
 5                 MR . TREU:      The biggest thing is get the
 6   property back , but --
 7                 THE COURT :      Oh , that's right .
 8                 MR. TREU:       That 's our issue; clear the
 9   title .
10                 MR . GRUBBS :     That's right.      And that ' s
11   what ours states as well, Judge .        We have our default
12   there as well , Judge.     And I 've read Steve's order and
13   I have no objection to it as written.
14                 THE COURT :      Okay.    Order of severance.
15                 MR . GRUBBS :     That ' s the default, Your
16   Honor.
17                 THE COURT:       Okay .   Take this across the
18   hall and get you copies of what you need.            Okay.
19                 MR. GRUBBS:       Thank you , Judge .
20                 THE COURT :      See y'all later.
21                 MR . TREU:      Thank you , Judge.
22
23
24
25




                        TAMI L. WOLFF, C.S.R.
                       PHONE:   (830) 331 - 8286
                                                                          7



,-
      I   THE STATE OF TEXAS      *
      2   COUNTY OF KENDALL       *
      3                  I, TAMI L. WOLFF, Certified Shorthand
      4   Reporter in and fo r the State of Texas, do hereby
      5   certify that the above and foregoing contains a true
      6   and correct transcription of all portions of evidence
      7   and other proceedings requested in writing or orally
      8   by counsel for the part i es to be included in this
      9   volume of the reporter ' s record , i n the above - styled
     10   and numbered cause , all of which occurred in open
     11   court or in chambers and were reported by me.
     12                  I further certify that this reporter ' s
     l3   record of the proceedings truly and correctly reflects
     14   the exhibits, if any, admitted by the respective
     15   parties.
     16                  I further certify that the total cost of
     17   the preparation of this       report~        record is $   :?~Gt)
     18   and was paid/will be paid by            I~ ~.
     19                  WITNES       MY OFFICIAL HAND on this , the
     20               day of 4~~~'7--- ' 2015 .
     21
     22
     23
                                         Expira tion : 12/3 1 /15
     24                                  Kendall County Courthouse
                                         201 E . San Antonio , Suite 212
     25                                  Boerne , Texas 78006
                                         (830) 331 - 8286


                              TAMI L.    WOLFF,   C,S , R,
                              PHONE:     (830) 331-8286
                                           CAUSE NO. 10422

MICHAEL MIDDLETON                                   §             IN TIlE DISTRlCT COURT
                                                    §
v                                                   §            216'" JUDIClALDISTRlCT
                                                    §                                                FILED IN
TEMPLETON MORTOAGE                                  §                                         4th COURT OF APPEALS
CORPORATION, JERRY W. CORBIN,                       §                                          SAN ANTONIO, TEXAS
TRUSTEE, BD. ADKINS, TRUSTEE,                       §
PATIY CORBIN, TRUSTEE, AND                          §
                                                                                              05/21/2015 3:30:40 PM
ENOS HAMPTON, INDEPENDENT                           §                                             KEITH E. HOTTLE
EXECUTOR OF TIlE ESTATE OF                          §                                                  Clerk
BETIY G. ROBINSON                                   §            KENDALLCOUNT~TEXAS

                                    ORDERSETnNGBE~G


           Hearing on IntetVenor, Gary M. Poen isch's MOOoo to Enter Default Judgment and Request for

Severance is 6ct for the 15tb day ofOc:tober, 2014 11 9:00 a.m. inthe216t& Judicial DistrictCourt ofKCfldaU

County. Texas.

           s;gnedth;s( D    d'YOfocrober'2014~~

                                                        E BILLPALMER                "'.

                                         CERIIFICtVE OF SERVICE

      I hereby certify that on the 9th day of October. 2014. a true and correct copy oftbe foregoing
document was forwarded via certified mlllI. return receipt reque:noo LO:

Templeton Mortgage Corporation                           Kenneth E. Grubbs
5109 82"" Street, Suite 7 t21                            4241 Woodc.ock Drive. Suite C 120
Lubbock, Te.... 79424                                    San Antonio, Texas 78228-1330
                                                           210 - 4'1~-4S"7
Albert D. "Pat" Pattillo. m
Pattmo, Richard & Harpold, p.e.                                                                       ....
280 Thompson Dr., Suite B
Kerrville, Texas 78Ol3
                                                                                                       '"
                                                                                                       n
                                                                                                       ~      ·11
 .. '" . 81 • •~"'"
Jerry W. Corbin
                                                                                                      C>      i-
Jerry W. Corbin,P.C.
                                                                                                      ".
                                                                                                      ::;:    rn
li923 Indiana Ave.• Suite 106
                                                                                                      "
                                                                                                              W
Lubbock, Texas 79413                                                                                 c.n
    ,<,.
     '14' ·1+51                                                                                      .c-

,;!",,,,, ~ .I n"
    ""' W;- "'i'~


                                                                                                  rago 1
                                                    CAUSE NO. 10-422

MICHAEL MIDDLETON                                            §             IN THE DISTRICT COURT
                                                             §
v                                                            §             2 J6'" ruDICIAL DISTRICT
                                                             §                                     FILED IN
TEMPLETON MORTGAGE                                           §                              4th COURT OF APPEALS
CORPORATION, JERRY W. CORBIN,                                §                               SAN ANTONIO, TEXAS
TRUSTEE, B.D. ADKINS, TRUSTEE,                               §
PATTY CORBIN, TRUSTEE, AND                                   §                              05/21/2015 3:30:40 PM
ENOS HAMPTON, INDEPENDENT                                    §                                  KEITH E. HOTTLE
EXECUTOR OF Tin; ESTATE OF                                    §
BE1TY G. ROBINSON                                             §            KENDALL COUNTY, TEXAS
                                                                                                     Clerk

                                                 DEFAULT JUDGMENT

          On the below date, came on to be heard Intervenor Gary M. Poenisch's ("Intervenor") claims filed

against Templeton Mortgage Corporation ("Tenlpleton") ill the above--entitled and numbered cause.

Intervenor appeared by and througb his attorney of record and announced ready. Templeton although baving

earlier appeared in this action through an attorney, failed to comply with this Court' s Order dated August

18, 2014 and consequently its pleadings were struck in this cause. Therefore a default entry in favor of

Intervenor and against Templeton is appropriate. The Court is of the opinion that the allegations of

Intervenor's Petition in Intervention against Templeton are true,lhat a declaration (as allowed under Chapter

37 of the Texas Civil Practice & Remedies Code) that the Substitute Trustcc's Deed and Deed ofTrust, both

made subject of this proceeding. arc invalid is appropriate, and that Intervenor should recover a reasonable

atlorney's fee and conditional reasonable attorney's fees, all of which the Court finds necessary. It is.

therefore,

          ORDERED, ADnJDGED AND DECREED that the Substitute Trustee's Deed dated December 7,

2010 and recorded in the official records of Kendall County, Texa.... at Volume 1240 and Pages 612·61 S in

the Kendall County, Texas real propeny records, as document number 00253701, AD4 the Deed of Trust

dated As Of January 1,2009 and recorded in the official records of Kendall County, Texas at Volume 11 S9

and Pages 999·1 005 in the Kendall County, Texas real property records, as document number 002395 17, are

QQ1h hereby declared null and         ~oid   and of no force or effect whatsoever. It is further




I.. & B loS.58610003JU}90464S. WPOI                                                                   Page 1
          ORDERED. ADJUDGED AND DECREED that Templeton Mortgage Corporation never owned or

had valid title to the real property described as:

          BEING 33.906 acres, more or less, tract ofland, being approximately2.892 acres outoflhe
          E. Schilling SurVey No. 341, Abstract No. 829 and approximately 31 .014 acres out of the
          Louis Shotwell Survey No. 26, Abstract No. 457, Kendall County, Texas, located about 14.3
          miles North -43 degrees West of the county scat in Boerne, Kendall County, Texas, being
          the northwestern portion of a tract as described in Deed ret:Orded in Volume 205. Page 721 ,
          Kendall County Deed Records and being more fully described as follows:

          BEGINNING at an existing iron pin in a. fence for the southwest comer of this tract, said pin
          being South 321.2 feet from the northwest comer ofthe E. Schilling Survey No. 341;

          THENCE, N 880 57 22" B 305.33' to an ex.isting iron pin for comer,

          THENCE, N 2&<> 50' 35" E 2,991.28' to an existing iron pin in a fence on a southwest line
          of the Holiday Road;

          THENCE, with the said line of Holiday Road, N 42" 47' 50" W 66.85' (0 an existing iron pin
          forcomcr;

          TIlENCE, S 43° 48' 00" W 1,527.70' and S 89° 32' 45" W 640.89' to an existing iron pin in
          a fence for comer;

          THENCE, with fence S 00° 13' 35" W 1,373.44' and S 00° 14' 00" E 193.66' to the place of
          beginning and containing 33.906 acres of land, m,?fe or less.


It is further,

          ORDERED, ADJUDGED AND DECREED that Intervenor. Gary M. Poenisch. recover from

Templeton Mortgage Corporation as reasonable and necessary attorney's fees and expenses, which attorney's

fees and expenscs are hereby made part of this Judgment, the sum of$6,515.00 with postjudgrncnt interest

on such amount accruing lit the rate of5% per annum. together with all costs of COllrt in this behalf expended.

          IT IS FURTI1ER ORDERED, ADJUDGED AND DECREED that Intervenor, have and recover of

and from Templeton the sum ofS2,400.00 as attorney's fees if Templeton files a motion for new trial, bill

of review or motion to vacate orothc:rwise cbange or modify Judgment which is denied or overruled, further

the sum of $12,000.00 as attorney's fees if this Judgment is unsuccess;.fully appealed to the Fourth Court of

Appeals by Templeton, further the-sum ofSI 0,000.00 as attorney's fees if petition for review is filed with

the Texas Supreme Court. further the sum 0[$20,000.00 if such petition is briefed on the merits before the



L &: B I (jS8&1OOO31L090464~ _ WPf)f                                                                      Page 2
Texas Supreme Court. further the sum of $20,000.00 if oral argument is completed in the Texas Supreme

Court; at! such attorne)'s foes are hereby made part of this judgment

        IT (S F1.JRTHER ORDERED, ADJUDGED AND DECREED that tbe claims ofmtcrvcnor against

Templeton and the disposition of same as set forth in this judgment shall be and are hereby severed from

Cause No. 10-422 into a separate action, such that this judgment may and shall become fmal notwithstanding

the continued pendency of Cause No.
                                         1,,~'f22       A                  .
                                                        • and the clerk of the Court is hereby directed to docket

and rcoord this judgment under Cause No.       (0 ..... Lf.2.:.2:   A-
        Intervenor is allowed such writs and processes Wi may be necessary in the enforcement and collection

of this Judgment. All co,ts of court are adjudged against Templeton.

        This judgment is intended to be a final entry of default resolving all issues raised in this cause by

intervenor against Templeton from which appeal may be tiled. In that regard, all other relief expressly

requ~1:ed   in this cause , by Intervenor against Templeton that is not expressly disposed of above is hereby

in all things denied.

        SIGNED this 15th day of October. 2014.

                                                                                    J
                                                        / .~V7     / /7
                                                                f /1  I
                                                    JUDGE PRE b ··' L---
SUSMllTED BY:

LANGLEY & BANACK, INC.
145 E. Trinity, Suite 900
San Antonio. Texas 78212-3166
(21 0) 73~600 Telc;pbone               ..--,
(210)7)5-6889TeJecop}~             .
streu@Iang~ybanaCk.com, .
By:           ,/~
                                  ~
                                   Q---
                                               .'
                                                                                                               i.'o
         STeVEN B. TRf..u      .
         State Bar No. 202~%o(                                                                           U1

AlTORNEYS FOR PLAINTlFF




L& a 16S861OOO31L090464!i.WPJ)(                                                                         Page 3
                                               CAUSE NO. 10-422

     MICHAEL MIDDLETON                                   §             IN THE DISTRICT COURT
                                                         §
     v                                                   §             2 I6'" JUDICIAL DISTRICT
                                                         §
     TEMPLETON MORTGAGE                                  §
     CORPORATION, JERRY W. CORBIN,                       §
     TRUSTEE, B.D. ADKINS; TRUSTEE,                      §
     PATTY CORBIN, TRUSTEE, AND                          §
     ENOS HAMPTON, INDEPENDENT                           §
     EXECUTOR OF THE ESTATE OF                           §
     BETTY G. ROBINSON                                   §             KENDALL COUNTY, TEXAS

                                CERTIFICATE OF LAST KNOWN ADDRESS

     TO THE CLERK OF SAID COURT:

            Gary M. Poenisch, Intervenor in the above--entitled and numbered cause, certified to the Clerk of said

     Court that the last known mailing address of Templeton Mortgage Corporation, Defendant in the         above~


     entitled and numbered cause against whom a default judgment will be rendered, is as follows:

                                         Templeton Mortgage Corporation
                                           5109 82·d Street. Suitt' 7121
                                               Lubbock, Texas 79424

                                                      Respectfully submitted,

                                                      LANGLEY & BANACK, INC.
                                                      745 East Mulberry. Suite 900
                                                      San Antonio, Texas 78212·3166
                                                      (210) 736-6600 Telephone
    o                                                 (210)735-6R8H;!F0:             . ~~
    l:J,                                              streu@langleybapack.cP,!d"\'
                                                                   )Y' /,'/' ,
    -'
    l! ..
                                                       By:---;~~V~;\:;;;;-;j;_C±=-_-
                                                           .'STEVEN B.  0
                                                    L          State Bar No,
                                                  L. ATTORNEYS FOR INTERVENOR
                                                                               20a




)
)
                                                                                                          Page 4
