Brian Dierschke and Marvin Dierschke v. Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke

Opinion

November 10, 2015

No. 03-15-00400-CV No. 03-15-00399-CV

IN THE COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

AT AUSTIN

BRIAN DIERSCHKE AND MARVIN DIERSCHKE

APPELLANT

V.

CHERYL LYNN DIERSCHKE, DANA JOY DIERSCHKE AND GRANT STEVEN DIERSCHKE

APPELLEE

BRIEF OF APPELLANT

************

(Appealed from the 340th District Court of Tom Green County, Texas) *************

James David Walker Brian W. Dierschke Attorney for Appellees and Marvin Dierschke P. O. Box 41 /"RECEIVED \ Pro Se for Appellants Milano, Texas 76556 8494 Hawk Ave SBOT 20706000 OCT 2 9 2015 San Angelo, Tx 76904 512-636-9520 THIRD COURT OPAPPEAR 325-651-9296 \ JEFFREY D KY: E •- INDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), appellant presents the

following list of all parties and names and addresses of its counsel:

APPELLANT/PLAINTIFF: COUNSEL:

Brian Dierschke and Marvin Dierschke Brian Dierschke and Marvin Dierschke ProSe 8494 Hawk Ave San Angelo, Tx 76904 325-651-9296 Respondent

COURT OF APPEALS Third District of Texas P.O. Box 12547 Austin, Texas 78711-2547

APPELLEE/DEFENDANT

Cheryl Lynn Dierschke, James David Walker Dana Joy Dierschke Nezwek, Attorney for Appellees, and Grant Steven Dierschke P. O. Box 41 Milano, Tx 76556 SBOT 20706000 512-636-9520 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 1

TABLE OF CONTENTS 2

TABLE OF AUTHORITIES 3

STATEMENT OF THE CASE 4

STATEMENT OF FACTS 5

STATEMENT REGUARDING ORAL ARGUMENTS 8

ISSUES PRESENTED 8

SUMMARY OF THE ARGUMENT 8

ARGUMENT 9

PRAYER 12

APPENDIX 13 TABLE OF AUTHORITIES

STATUES

TEXAS PENAL CODE Pages

Section 32.21 Forgery 8, Section 32.46 Securing Execution of Document by Deception 9,11 Section 37.02 Perjury 10 Section37.03 Aggravated Perjury 10

TEXAS ESTATES CODE

Section 1151.001 Rights and Powers Retained by Ward 8,11 Section 1101.101 Findings and Proof Required 11

-3- TO THE HONORABLE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

Appellant, MARVIN DIERSCHKE AND BRIAN DIERSCHKE, respectfullyjjubmits this Appellants Brief in appeal of the judgment rendered against them and in favor of

CHERYL LYNN DIERSCHKE, DANA JOY DIERSCHKE NEZWEK, AND GRANT

STEVEN DIERSCHKE hereinafterreferred to as "Grant'V'Dana", and "Cheryl". This is

anappeal from the 340th Judicial District Court ofTom Green County Texas, Honorable Jay Weatherbee and the Honorable R. L. Blannpresiding. For cause,Appellantwould

show cause on the court as follows:

STATEMENT OF CASE

Grant made his own deed in 2003 without an attorney listed. Grant filed this deed in

the Tom Green County Courthouse and proceeded to change ownership in the Farm

Service Agency Office hereinafter referred to as "fsa". This is the same ownership in Grants deed and the Deed without Warranty filed in 2009. The fsa office balked at

changing the ownership interest leaving Marvin as 100 percent owner. Marvin had

bought the property from the trust in July 8,1981 in Volume 730 Page 123-129 in the

Tom Green County Deed Records and thedeed was listed as Marvin Dierschke, trustee leaving everything vague.

On March 30,2009 Carmelita Schwertner Dierschke died. In July 2009, another Deed

without Warranty was prepared by Hampton Beesley and Connie Powell from the trust

department at Wells Fargo. It went to the fsa to change ownership and again the fsa balked at changingownership. Bothtimesthe deeds went offto the Officeof General

Counsel. This time however the government suspended payments but kept Marvin signing up anyway. The fsa said that the ownership interest were indispute and when

-4- everyone agreed onthe interests. They would pay what wasowed from 2009 forward

since Marvin had signed up each year. a

This case is about real estate fraud, bank fraud, forgery and fraud on the court. The

Trust department only owned this land for one month from June 8,1981 to July 8,1981

thus that is how the Deed Without Warranty was created in July 2009.

STATEMENT OF FACTS

Carmelita Schwertner and Marvin Dierschke were married in April, 1962. Carmelita

developed paranoid schizophrenia in 1965 with mental breakdowns in 1965,1969,1974, 1976 and almost continuously after thatpoint. Her uncle, Gregory Schwertner hadbeen

institutionalized for the last 40 years of his life so mental illness had runin their family.

Marvin and Carmelita bought a 225 acre tract on Aug 16,1968 in Volume 291 Page

404 of the deed records. There was a Deedof Trust put on the land with George Finley

as the trustee. Otto and Annie Dierschke (parents of Marvin) bought a 283 acre tracton

Jan. 23 1974. There is a Deed ofTrust put on the land with Phil Lane as the trustee.

Three days later onJan. 26,1974, Otto and Annie sell the land with the Deed of Trust on it to Marvin and Carmelita. The property is paid off and a release oflienis filed on Dec.

5,1977.

Otto Dierschkedies on Nov. 5,1978. James Carter is hiredto probate the estateof

Otto Dierschke. James Carter talks Marvin Dierschke into putting his putting his

mentally illwife's property inatrust Carmelita files for divorce in 1979. She goes into anursing home permanently on Aug 1st 1979 for the rest ofher life until March 30th 2009. A guardianship is put in place for her byher sibling and parents for fear they will

•5- lose part of their estate to long term health care in the long term. It was signed by a Judge Ed Keyes on Dec 4, 1980. Marvin Dierschke resigns from the Carmelita

Schwertner Dierschke Trust(Ex 3) on June 8,1981 with a sales contract dated June

8,1981 selling it back to Marvin Dierschke, trustee. The Decree of Divorce (Ex 6) was signed on June 30,1981. John Earnest Schwartz who is the guardian ofCarmelita signs the conservatorship on June 16,1981. The divorce estateof Carmelita is looted when

Marvin resigns from the trust onJune 8,1981. This is all orchestrated by James Carter and Gerald Ratliff. The property from the trust is listed inthe conservatorship as her property. The Decree of Divorce (Ex 6) is signed on June 30,1981. Marvin marries

Janis Plaster in Feb, 1982. They buy a 126 acre farm together in 1983.

Marvin gets all the property deeded to him by the trust department onJuly 8,1981. This was the only time the trust department theoretically owned this property. The Bank makes aDeed of Trust onall property(trust or not) on Jan 20,1983 inVol 495 Page 240. In Jan 1984, there is as release of lien filed on the 225 acre tract where George Finley is the trustee. On April 19,1985, Marvin Dierschke, trustee trades 43.36 % interest of 283

acre tract for his individual 135 acre tract. A judge Curt Steib signs. John Sutton, James

Carter, and Steve Holt handle this transaction. On July 2,1985, Lester Ocker gives a Release of Lien(Vol 836 Page 50) from aWarranty Deed withVendor's Liendated Feb 23,1970 filed inthe Tom Green County Deed records Vol 551 Page 232. Grant, Cheryl and Dana file suit against Brian, Marvin, Janis and Christy. They hire Larry Bale who isin the same law firm with John Hay Jr., Charles Wittenburg and Cynthia Caldwell. Three ofthetwelve that were in the law firm that handled thedivorce

in 1981 from James Carter's firm. Larry Bale's brother-in-law's parents were owners of

-6- the 225 acre tract that sold to Marvin and Carmelita in 1968. Also George Finley who

was the trustee of the 225 acre Deed of Trust was in the same law firm as James Carter.

We contacted the Texas Attorney General in 2012 and 2013 to try to get these deeds

fixed through medicaid fraud. Pretty soonwe had a retaliation lawsuit from the

attorneys.

-7- STATEMENT REGUARDING ORAL ARGUMENTS

There is no need for oral argument since the documents speak for themselves in this

case in support or denial of the law. The documents in this case are just like instant replay

in sports in that an accurate decision can be made from looking at the documents.

ISSUES PRESENTED

1. Did the trial court err by allowing forgery, perjury and false documents into the trial?

SUMMARY OF THE ARGUMENT

The court's judges erred at letting forgery, perjury, and false documents get into the

trial. The Warranty Deed (Exhibit 4), Agreement Incident to Divorce(Ex. 5), Divorce

Decree (Ex. 6), and Deed Without Warranty (Ex 7) are all forgery or false documents.

We answered and objected to lawsuit on Dec 31,2012 stating on No. 4 "In the

Conservatorship, John Schwartz signs for Carmelita Schwertner Dierschke. I have never

found where Carmelita Schwertner Dierschke was adjudged incapacitated. John Schwartz

can't sign for Carmelita Schwertner Dierschke if she is not adjudged incapacitated."

Texas Penal Code under Texas Section 1151.001, it states Rights and Powers Retained

by Ward- An incapacitated person of whom a guardian is appointed retains all legal and

civil rights and powers. John Schwartz forged the document. Under the Texas Penal

Code Section 32.21-Forgery under (1) (A) (i) it states "Forge means to alter, make,

complete, execute, or authenticate any writing so that it purports to be the act of another

who did not authorize the act."

-8- James Carter represented the estate of Otto Dierschke. When he found out the 283

acretract had a bad chain and the financial interest of the bad chain belong to the estate

of Otto Dierschke. He talked Marvin into puttinga portionof this 283 acre into a trust on

March 16,1979(Ex 4) so it would be buried and not found. This violated the Texas Penal

Code Chapter 32.46 Fraud-Securing Execution of Document by Deception (a) a person

commits an offense if, withintent to defraud or harm any person, he, by deception:

causesanother to sign or execute any document affecting property or service or the

pecuniary interest of any person.

Alsoin the Warranty Deed (Ex 4) and Deed Without Warranty (Ex 7),and the

Ageement Incident to Divorce (Ex5),there is real estate where the Superior Title(s)

that are somewhere else then Marvin and Carmelita Dierschke at the time of the divorce.

TheDecree of Divorce (Ex 6) has to be false if John Schwartz can't sign. In the Deed

Without Warranty, the affidavit (Ex 1) by Hampton Beesley is perjury if there is a

Superior Title somewhere elseonMarch, 16,1979. Because this case has forgery, perjury, and false documents, this case should be reversed and remanded to the trial

court for further consideration.

Argument

L Did the trial court err by allowing forgery ,perjury, and false documents into the trial?

The evidence presented attrial that was false orforged was Beesley Affidavit (Ex 1), .Warranty Deed(Ex 4), Agreement Incident toDivorce(Ex 5), Divorce Decree(Ex 6), and Deed Wimout Warranty (Ex 7). I have included the 283 Acre Tract documents (1970 to 1985) and the 225 Acre documents (1968 to 1984) in the Motions toAppeal due to fraud

-9- dated June 9,2015 and June 22,2015 approximately.

The 283 Acre Tract is listed in the Warranty Deed (Ex 4) and Agreement Incident to

Divorce (Ex 5). In the Warranty Deed dated Feb 23,1970, Lester Ocker deeds to Elmer

Ocker 240 acre out of the 283 acretract with a Warranty Deed with a Vendor's Lien

( Tom Green County Deed RecordsVol. 551 Page 232). It expressly says on page 2 of

the document that Lester Ocker has Superior Title until it is paid off which is July 2,

1985 where a Releaseof Lien is filed in Volume 836 Page 50. The ironic part to this is

that Elmer and Lester Ocker give a Warranty Deed with Vendor's Lien to Phil Lane who

is the trustee on a DeedofTrust on Jan 23,1974 to Otto Dierschke who then three days

later sells it to Marvin Dierschke.

This 283 Acre Tract is listed on page2 ofthe Warranty Deed (Ex 4) and againon

Page 8 indirectly and page 9 of the Agreement Incidentto Divorce (Ex 5). This property

cannot be put in the Carmelita Schwertner Dierschke Trust(Ex 3) on March 16,1979 with

Lester Ocker having Superior Title.

On Aug 16,1968, Marvin and Carmelita bought the 225 Acre Tract with Warranty

Deed and Deed of Trust with George Finley as the trustee in volume 291 page 404 of the

Tom Green County Deed Records. George Finley has SuperiorTitle and a Release of

Lienis not filed until Jan 6,1984 in Volume 525 page 470. Beesley's Affidavit (Ex 1) is

perjury because ofthis Superior Title. Beesley in his Affidavit (Ex 1) said he did deep

research. He committed perjury under the Texas Penal Code Section 37.02 where a

person commits an offense if, with intentto deceive and with knowledge of the

statements meaning. And Texas Section 37.03 AggravatedPerjury (a) a person commits

anoffense, ifhe commits perjury as defined in Section 37.02, and the false statement: (1)

-10- is made during orin connection with an official proceeding; and (2) is material.

This 225 Acre Tract is listed on page 4ofthe Warranty Deed (Ex 4), page 8indirectly and page 11 of the Agreement Incident to Divorce(Ex 5), and on page 7 in the Deed Without Warranty(Ex 7). The 225 Acre Tract cannot be put into the Carmelita Schwertner Dierschke Trust(Ex 3) since George Finley has Superior Title during this time frame. I have included the 225 Acre Tract documents in the June 22,2015 motion On page 6ofthe Agreement Incident to Divorce (Ex 5), John Schwartz signs as Guardian of the person and estate of Carmelita Schwertner Dierschke. She was never adjudged incapacitated. John Schwartz can't sign for her if she was never adjudged incapacitated. Under Texas Penal Code Section 1101.101 Findings and Proof Required (1) (A) find by clear and convincing evidence that the proposed ward is an incapacitated person. An incapacitated person retains all legal and civil rights and powers. Texas Section 1151.001. John Schwartz can't sign for Carmelita. There was fraud upon the court in 1981 by James Carter, Gerald RatlifT, Bradley Miles, and Randy Stout by violating the Texas Penal Code Chapter 32.46 Fraud-Securing Execution ofDocument by Deception. They were the attorneys in the divorce who committed fraud upon the court byhaving Superior Titles somewhere else inside the divorce and having John Schwartz sign for Carmelita which violated Texas Section 1151.001- Rights and Powers Retained by Ward.

-11- PRAYER

Appellant, Brian Dierschke and Marvin Dierschke respectfully for the reasons stated

above, ask the Court to reverse the judgment of the trial court and remand the case for a

new trial.

Respectfully submitted,

Brian Dierschke and Marvin Dierschke 8494 Hawk Ave San Angelo, Tx 76904 325-651-9296

BRIAN DIERSCHKE

by: y^**ji^%^^jLJL MARVIN DIERSCHKE

PRO SE FOR APPELLANTS

1. DECREE ORDERING PARTITION AND APPOINTING COMMISSIONERS

2. FIRST AMENDED DECREE ORDERING PARTITION OF PROPERTY

-13- NO. C120427C

CHERYL LYNN DIERSCHKE, IN THE DISTRICT COURT OF DANA JOY DIERSCHKE NEZWEK, AND GRANT STEVEN DIERSCHKE

V. TOM GREEN COUNTY, TEXAS

BRIAN WILLIAM DIERSCHKE, CHRISTY ANN DIERSCHKE WINN, MARVIN DIERSCHKE, AND JANIS DIERSCHKE 340th JUDICIAL DISTRICT

DECREE ORDERING PARTITION AND APPOINTING COMMISSIONERS

On June 1, 2015, came on to be heard and considered Plaintiffs' Request for Partition In Kind and Accounting. Plaintiffs, Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke, appeared in person and by attorney of record and announced ready for said hearing. Defendants, Cheryl Ann Dierschke Winn and Janis

Dierschke were duly and timely served with citation, but have not made an appearance in this cause and have wholly made default. Defendants, Brian William Dierschke and Marvin Dierschke, made their appearance in this cause; however, on September 17, 2013, this Court struck their pleadings and granted judgment by default against them on all of the claims and causes of action asserted by the Plaintiffs in this cause. In due consideration of all matters of fact and law, and after hearing the evidence

and argument of counsel, the Court is of the opinion and finds as follows: 1. Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, Grant Steven Dierschke, Brian William Dierschke and Christy Ann Dierschke Winn each own an undivided one-fifth (1/5) interest in and to the following three tracts of land:

(a) the 91.749 acres out of Survey 67, Abstract 1968, and Survey 68, Abstract 8040, S.P.R.R. Co., District 11, described by metes and bounds as Tract A of Exhibit "B" in the Deed Without Warranty dated July 20, 2009, recorded as Instrument No. 673696 in the Deed Records of Tom Green

-1 County, Texas, which Deed Without Warranty is hereby incorporated by reference;

(b) the 19.583 acre tract out of the East Vi of Survey 58, Abstract 8003, S.P.R.R. Co., District 11, described by metes and bounds as Tract B of Exhibit uBn in said Deed Without Warranty; and (c) the 126.787 acres out of Surveys 67 and 68, S.P.R.R. Co., described more particularly as Tract D of Exhibit "B" in the Deed Without Warranty.

2. Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, Grant Steven Dierschke, Brian William Dierschke, and Christy Ann Dierschke Winn, each own an undivided one-fifth (1/5) of an undivided 34.5% interest in and to the following tract of land: 225.5 acres outof the W/2 of the north part of Survey 50, District 11, S.P.R.R. Co., described by metes and bounds as Tract C of ExhibitUB" inthe Deed Without Warranty; and Defendant, Marvin Dierschke, owns the remaining undivided 64.5% interest in this 225.5 acre tract. Defendant, Janis Dierschke, who is Marvin Dierschke's spouse, has homestead rights in Marvin Dierschke's undivided interest in this 225.5 acre tract; and Marvin Dierschke and Janis Dierschke currently reside on two acres of this undivided 225.5 acre tract.

The Court further finds that the above described four tracts of land are susceptible

of being partitioned in kind if, but only if, the property is partitioned by allocating to the

Plaintiffs their interest in the four tracts of land such that the Plaintiffs interests remain

undivided and the Defendants interest in the four tracts of land also remains undivided.

It, therefore, ORDERED that the forgoing property is partitioned among the parties

such that the value of the parcel or parcels allotted to the Plaintiffs reflects their combined

joint interest in the four tracts of land; and the parcel or parcels allotted to the Defendants

reflects their combined joint interest in the four tracts of land.

It is further ORDERED that Kevin Halfmann, Jerry Sefcik and Chip Cole, competent

and disinterested persons, are appointed commissioners to make the partition in

accordance with this decree and the law, and when the partition is completed, to report in

writing and under oath to this Court by the 1st day of August, 2015. It is ORDERED that

-2- Robert Elliott is appointed alternate commission in the event one of the above named commissioners cannot serve.

It is further ORDERED, ADJUDGED, and DECREED that Plaintiffs, Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke, have and recover judgment from and against Defendants, Brian William Dierschke and Marvin Dierschke, jointly and severally, for the sum of Two Hundred Sixty Four Thousand Seven Hundred Twenty Four and 13/100 Dollars ($264,724.13), plus post-judgment interest on this sum at the rate offive percent (5%) per annum after the date ofthe signing ofthis judgment. It is further ORDERED that an equitable lien is hereby created to enforce the payment of this Judgment against the interest granted to Brian William Dierschke and Marvin

Dierschke in the property described herein; and, if such judgment lien remains unpaid as of the date of the final Order partitioning the property into separate tracts, that such judgment lien shall be imposed against the interest in such property specifically granted to BrianWilliam Dierschke, to Marvin Dierschke, orto Brian William Dierschke and Marvin

Dierschke.

It is further ORDERED that the Clerk of this Court shall order a writ of partition, directed to the Sheriffor any Constable ofTom Green County, Texas, commanding such Sheriff or Constable to notify each of the above named commissioners of their

appointment. The Clerk shall accompany such writ with a certified copy of this decree. Signed this 1st day of June, 2015. ^& ^f

DISTRICT JUDGE PRESIDING (R. L. Blann, Judge Assigned) NO. C120427C

CHERYL LYNN DIERSCHKE, DANA JOY DIERSCHKE NEZWEK, §S in THp DISTRICT mi irt nc DISTRICT COU£T OF AND GRANT STEVEN DIERSCHKE § § V. § TOM GREEN COUNTY, TEXAS BRIAN WILLIAM DIERSCHKE, I CHRISTY ANN DIERSCHKE WINN, § MARVIN DIERSCHKE, AND JANIS § DIERSCHKE § 340th jUD|C|AL DISTRICT

FIRST AMENDED DECREE ORDERING PARTITION AND APPOINTING COMMISSIONERS

On June 1, 2015, came on to be heard and considered Plaintiffs' Request for Partition In Kind and Accounting. Plaintiffs, Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke, appeared in person and by attorney of record-and announced ready for said hearing. Defendants, Cheryl Ann Dierschke Winn and Janis Dierschke, were duly and timely served with citation, but have not made an appearance in this cause and have wholly made default. Defendants, Brian William Dierschke and Marvin Dierschke, made their appearance in this cause; however, on September 17,2013, this Court struck their pleadings and granted judgment by default against them on all of the claims and causes of action asserted by the Plaintiffs in this cause. In due consideration of all matters of fact and law, and after hearing the evidence and argument of counsel, the Court is ofthe opinion and finds as follows: 1. Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, Grant Steven Dierschke, Brian William Dierschke and Christy Ann Dierschke Winn each own an undivided one-fifth (1/5) interest in and to the following three tracts of land:

(a) the 91.749 acres out of Survey 67, Abstract 1968, and Survey 68 Abstract 8040, S.P.R.R. Co., District 11, described by metes and bounds as Tract Aof Exhibit "B" in the Deed Without Warranty dated July 20, 2009,

-1- recorded as Instrument No. 673696 in the Deed Records of Tom Green County, Texas, which Deed Without Warranty is hereby incorporated by reference;

(b) the 19.583 acre tract out of the East Yz of Survey 58, Abstract 8003, S.P.R.R. Co., District 11, described by metes and bounds as Tract B of Exhibit "B" in said Deed Without Warranty; and

(c) the 126.787 acres out of Surveys 67 and 68, S.P.R.R. Co., described more particularly as Tract D of Exhibit UB" in said Deed Without Warranty.

2. Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, Grant Steven Dierschke, Brian William Dierschke, and Christy Ann Dierschke Winn, each own an undivided one-fifth (1/5) of an undivided 35.5% interest in and to the following tract of land: 225.5 acres out of the W/2 of the north part of Survey 50, District 11, S.P.R.R. Co., described by metes and bounds as Tract C of Exhibit uBn in said Deed Without Warranty; and Defendant, Marvin Dierschke, owns the remaining undivided 64.5% interest in this 225.5 acre tract. Defendant, Janis Dierschke, who is Marvin Dierschke's spouse, has homestead rights in Marvin Dierschke's undivided interest in this 225.5 acre tract; and Marvin Dierschke and Janis Dierschke currently reside on two acres of this undivided 225.5 acre tract.

3. The above described four tracts of land are susceptible to fair and equitable partition among the parties so as to reflect their respective interests, save and except the two acres of the undivided 225.5 acre tract upon which Marvin Dierschke and Janis Dierschke currently reside.

It, therefore, ORDERED that the forgoing property is partitioned among the above-

named parties such that the value of the parcel or parcels allotted to each party reflects

that party's interests as recited above; however, it is ORDERED that the two acres upon

which Marvin Dierschke and Janis Dierschke currently reside on the 225.5 acre tract is

excepted from the partition, and it is ORDERED that those two acres shall be set aside to

Marvin Dierschke and shall not be considered in the partition of the remaining 223.5 acres

in this tract or the partition of the three other tracts.

It is further ORDERED that Kevin Halfmann, JerrySefcik and Chip Cole, competent

and disinterested persons, are appointed commissioners to make the partition in

-2- accordance with this decree and the law, and when the partition is completed, to report in

writing and under oath to this Court by the pffi day of August, 2015. It is ORDERED that Robert Elliott is appointed alternate commissioner in the event one of the above

named commissioners cannot serve.

It is further ORDERED that SK<£ £jV£?/ A/gg.gJfL/£f is appointed surveyor for the purpose of assisting the above named commissioners in making the

partition.

It is further ORDERED, ADJUDGED, and DECREED that Plaintiffs, Cheryl Lynn

Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke, have and recover

judgment from and against Defendants, Brian William Dierschke and Marvin Dierschke, jointly and severally, for the sum of Two Hundred Sixty Four Thousand Seven Hundred Twenty Four and 13/100 Dollars ($264,724.13), plus post-judgment interest on this sum at the rate of five percent (5%) per annum after the date of the signing of this judgment.

It is further ORDERED that an equitable lien is hereby created to enforce the payment of

this Judgment against the interest granted to Brian William Dierschke and Marvin Dierschke in the property described herein; and, if such judgment lien remains unpaid as of the date of the final Order partitioning the property into separate tracts, that such

judgment lien shall be imposed against the interest in such property partitioned to Brian William Dierschke, to Marvin Dierschke, or to both Brian William Dierschke and Marvin

Dierschke. It is further ORDERED that if this judgment lien is not completely satisfied

against the interest in the property partitioned to Brian William Dierschke, to Marvin Dierschke, or to both Brian William Dierschke and Marvin Dierschke, that the balance of the judgment remaining unpaid shall be a valid and binding joint and several judgment

against Brian William Dierschke and Marvin Dierschke.

It is further ORDERED that all cost of Court, the fees and expenses to be paid to

the commissioners, and any fees or expenses to survey any of the properties to effect the

partition shall be charged against each partybased upon their respective overall ownership

interests in the subject properties.

It is further ORDERED that the Clerk of this Court shall issue a writ of partition,

directed to the Sheriff or any Constable of Tom Green County, Texas, commanding such

Sheriff or Constable to notify each of the above named commissioners of their

appointment. The Clerk shall accompany such writwith a certified copy of this decree.

It is further ORDERED that the Decree Ordering Partition and Appointing

Commissioners signed on June 1, 2015, is set aside and held to be of no further force or

effect. m

Signed this (W day of June, 2015.

DISTRICT JUDGE PRESIDING (R. L. Blann, Judge Assigned)

-4- I hereby certify that a true copy of the above and forgoing was forwarded to James

David Walker by U. S. Priority Mail on Oct26th, 2015 properly addressed as follows: James David Walker Attorney at Law P.O. Box 41 Milano, Texas 76556

BRIAN DIERSCHKE

MARVIN DIERSCHKE

PRO SE FOR APPELLANTS PRESS FIRML Y TO SEAL PRIORITY * MAIL * r=T=l DATE OFDELIVERY SPECIFIED* /??. USPS TRACKING™ INCLUDED* $ INSURANCE INCLUDED* j£5 PICKUP A \\/A II A nl nr =ST UNITED STATES * Domestic m POSTAL SERVICEe USPS TRACKING # Label228, January 2008 WHEN USED INTEF A CUSTOMS DEi label may be i 9114 9999 4431 4921 5636 72 EP14F July 2013 VISITUSATUSPS.COM0 UNITEDSTATES PS00001000014 OD: 12.5 x 9.5 ORDER FREE SUPPLIES ONLINE POSTAL SERVICE. ^RECEIVEDN CERTIFICATE OF COMPLIANCE | NOV 0 5 2015

THIRD COURT OFAPPEALS \ JEFFREYD.KYLE / I certify that the foregoing document contains 2368 words according to the word count

of the computer program used to prepare it, in compliance with Tex R. App. Rule 9.4 (i)

(3).

Brian and Marvin Dierschke 8494 Hawk Ave San Angelo, Tx 76904

BRIAN DIERSCHKE

Cfe/Vt*N> MARVIN DIERSCHKE MA

PROSE 4T "\ PRESS FIRMLY TO SEAL

ITV FRO'j I FR For Domestic L • PRIORITY' and International Use

MAIL jS?5S UNITED STATES POSTAL SERVICE RY SPECIFIED*

rM INCLUDED* From 0lhM 9«* M*s$9% /l/e^U/^o 1M

TO U>J ^f/c/, AusJ-r^ Texts ~lf~itl-istl Label 228, January 2008