Don Titel and Carol Titel v. Morris G. Melchor and Lisa Melchor

Opinion

ACCEPTED

03-14-00463-CV

4851573

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/10/2015 4:36:35 PM

JEFFREY D. KYLE

CLERK

CAUSE NO. 03-14-00463-CV

FILED IN

3rd COURT OF APPEALS

IN THE AUSTIN, TEXAS THIRD COURT OF APPEALS 4/10/2015 4:36:35 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk

DON TITEL AND CAROL TITEL Appellants

VS.

MORRIS MELCHOR AND LISA MELCHOR Appellees

From the County Court at Law No. 2, Cause # C1-CV14-004232 of Travis County, Texas

the Honorable David Phillips presiding

BRIEF OF APPELLEES

Jay P. Lea

State Bar No. 24062843

jlea@namanhowell.com

NAMAN, HOWELL, SMITH & LEE, PLLC 8310 N. Capital of Texas Highway, Suite 490

Austin, Texas 78731

(512) 474-1901

FAX (512) 474-1901

ORAL ARGUMENT REQUESTED

NAMES OF ALL PARTIES AND COUNSEL

Appellants: Don & Carol Titel

Counsel for Appellants: Paul C. Velte, IV State Bar No. 20541700

PAUL C. VELTE, IV, ATTORNEY & COUNSELOR 109 E. Hopkins St.

Suite 204

San Marcos, Texas 78666

Telephone: (512) 353-2299 Facsimile (512) 476-9504

Email: Velte@PTexans.com

Appellees: Morris & Lisa Melchor

Counsel for Appellees: Jay P. Lea State Bar No. 24062843

NAMAN, HOWELL, SMITH & LEE, PLLC 8310 N. Capital of Texas Hwy.

Suite 490

Austin, Texas 78731

Telephone (512) 479-0300

Facsimile (512) 474-1901

Email: JLea@NamanHowell.com

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii TABLE OF CONTENTS ............................................................................... iii INDEX OF AUTHORITIES.......................................................................... iv STATEMENT OF THE CASE ...................................................................... vi ISSUES PRESENTED.................................................................................. vii

1. Did the Appellees have a duty to control the actions of minor children who were not in their legal custody or actual care? ............ vii

2. Did the Appellees have a duty to control Mandy Edwards’

and/or Jeremy Melchor’s supervision or discipline of their minor children? .................................................................................. vii

3. Does Texas acknowledge a claim for negligent entrustment of real property? ...................................................................................... vii

4. Does Section 302 of the Restatement of Torts (Second) provide an independent basis for establishing a duty of care when other law specifically denies the duty? ....................................................... vii

STATEMENT OF FACTS ............................................................................. 1 SUMMARY OF ARGUMENT ...................................................................... 3 ARGUMENT & AUTHORITIES ON ALL ISSUES .................................... 6 CONCLUSION AND PRAYER .................................................................. 17 CERTIFICATE OF COMPLIANCE ............................................................ 18 CERTIFICATE OF SERVICE ..................................................................... 18

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INDEX OF AUTHORITIES

CASES

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671(Tex. 1979) ............................................................................ 3

Joe v. Two Thirty-Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004)................................................................... 3

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)................................................................... 4

S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) ................ 4 D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) ........................... 4 Chon Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005) .................................... 4 El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) .......................... 4

Way v. Boy Scouts of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied) .......................................................... 4

Providence Health Ctr. v. Dowell, 262 S.W.3d 324 (Tex. 2008)................... 6 Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) ............................... 6 Carter v. Abbyad, 299 S.W.3d 892 (Tex. App.—Austin 2009, no pet.) ........ 6

Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990)..................................................................... 6, 15

In re Martin, 147 S.W.3d 453 (Tex. App.— Beaumont 2003, pet. denied).................................................... 7

McCullough v. Godwin, 214 S.W.3d 793 (Tex. App.—Tyler 2007, no pet.) ........................................ 7

St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) .................................. 9 ~ iv ~

Scurlock v. Pennell, 177 S.W.3d 222 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ........................................... 10

Bicknell v. Lloyd, 635 S.W.2d 150 (Tex. App.—Houston [1st Dist.] 1982, no writ)........................................... 13

STATUTES & RULES TEX. R. CIV. P. 166a(c) ..................................................................................4 Tex. Fam. Code § 41.001 ................................................................................ 6 Tex. Fam. Code § 101.001 .............................................................................. 7

TREATISES 2 Restatement of Torts 2d, § 316 (1965) ........................................................ 8 2 Restatement of Torts 2d, § 302 (1965) ....................................................... 12

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STATEMENT OF THE CASE

This case arises out of damages caused by a fire allegedly started by a minor child, who was allegedly accompanied by another minor child, The fire spread from to the Don and Carol Titel’s (the Appellants) real property allegedly causing damages to their property. The Appellants sued:

1. Mandy Edwards ( mother);

2. Jeremy Melchor ( father); and

3. The Appellees, Morris and Lisa Melchor (owners of the real property on which Jeremy Melchor and Mandy Edwards resided. Morris and Lisa Melchor are the parents of Jeremy Melchor and the grandparents of

Appellants’ Third Amended Petition1 complains generally that Appellees were negligent because (1) they failed to control the individuals on the property and (2) allowed their adult son, Jeremy, to possess the land and live there with his children which created a dangerous situation.

The trial court granted Appellees’ traditional motion for summary judgment2 which argued that Appellees do not owe a duty to Appellants as a matter of law.

Appellants now challenge the trial court’s order granting summary judgment

as to Appellees. 1 Appellants Third Amended Petition was filed in response to Defendants Motion for Summary Judgment and was the live pleading at the time the Motion for Summary Judgment was gratned. 2 Appellees and Jeremy Melchor all moved for summary judgment. Jeremy Melchor’s motion was denied while Appellees’ motion was granted.

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ISSUES PRESENTED3

Issue No. 1

Did the Appellees have a duty to control the actions of minor children who were not in their legal custody or actual care?

Issue No. 2

Did the Appellees have a duty to control Mandy Edwards’ and/or Jeremy Melchor’s supervision or discipline of their minor children?

Issue No. 3

Does Texas acknowledge a claim for negligent entrustment of real property?

Issue No. 4

Does Section 302 of the Restatement of Torts (Second) provide an independent basis for establishing a duty of care when other law specifically denies the duty?

3 Appellants’ brief identifies the following issue for this courts consideration: “Grant of Summary Judgment was Improper.” Appellees have attempted to characterize Appellants arguments against summary judgment as “issues” herein.

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STATEMENT OF THE FACTS

Appellees, Morris and Lisa Melchor are the owners of rural property located at 693 Pickett Lane, Liberty Hill, Texas (the “Property”).4 The property is improved by a home.5 At all relevant times the Property and home were generally occupied and under the control of Jeremy Melchor, Appellees’ adult son. Appellees do not live on the Property and it is uncontested that their son Jeremy Melchor was given full control of the Property.6 The summary judgment evidence in this case is clear – on July 11, 2011, started the fire in question at a time when he was being supervised by his mother, Mandy Edwards.7 On the day in question, Mandy Edwards, Jeremy Melchor’s girlfriend, was staying in the home and caring for the children while Jeremy was at work at Smokey Mo’s BBQ.8 After the fire, admitted to his mother that he had learned to start fires in Boy Scouts and had started the fire in question.9 Appellants contend that the fire marshal report is

4 See Plaintiffs’ Third Amended Petition at p.1-2 (CR 56-57). 5 See Appellees Brief at p. 6-7. 6 See Plaintiffs’ Third Amended Petition at p. 2 (CR 57) (stating that the property was turned over to Jeremy Melchor); See also Appellants Brief at p. 8 (stating that Jeremy Melchor had been given “all authority to control the conditions on [Appellees] property”). 7 See Exhibit B to Defendants’ Motion for Summary Judgment, Oral Depo. of Mandy Edwards, at pp. 18 & 34 (CR 42 & 44). 8 See id. at p. 18 (CR 42); see also Exhibit A to Defendants’ Motion for Summary Judgment, Oral Depo. of Jeremy Melchor, at p. 30 (CR 32). 9 See Mandy Edwards Depo. at pp. 34 & 37 (CR 44-45).

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evidence that also started the fire in question.10 However, the report confirms that started the fire. Deputy Fire Marshal Daniel Berger's report states that “ stated he picked up some grass, lit it with the lighter, and then placed it on the ground.11 The fire quickly grew in size and the kids were unable to extinguish it.”12 According to the report, claimed that he and had lit grass on fire earlier, and that they had “put it out by stomping on it.”13 Yet, there is no evidence, nor do Appellants claim, that this earlier fire is responsible for destroying their property.14 Instead, the report indicates that it is the second fire, the fire admits he started, which grew out of control.15 The only reference to ’s potential involvement found in the report is a statement that told Deputy Berger that told him to start a fire.16 Accordingly, the evidence is clear that actually started the fire. At the time of the incident in question, permanently resided with his biological father in Alabama and was temporarily visiting his mother.17

10 See Plaintiffs’ Response to Defendants’ Motion for Summary Judgment at p. 2 (SCR 6). 11 See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” 8th unmarked Exhibit at 12 (CR 32). 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Exhibit A to Defendants’ Motion for Summary Judgment, Oral Depo. of Jeremy Melchor, at p. 9, 15-16 (CR 26-27).

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Neither nor Mandy Edwards are related by blood or marriage to

Appellees.18 Furthermore, the summary judgment evidence indicates that Jeremy

19

Melchor never took responsibility for disciplining or supervising

was in Jeremy Melchor’s legal custody and living permanently on the Property under the care of her father.20 However, like , was under the actual care of Mandy Edwards at the time of the incident in question.21 It is undisputed that Appellees were not at the Property on July 11, 2011 or leading up to the events in question and were not charged with the care of the children at the time.22 SUMMARY OF THE ARGUMENT

The function of a summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979). A trial court's order granting a traditional motion for summary judgment is subject to de novo review. Joe v. Two Thirty-Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). The traditional summary judgment movant has the burden of showing that no genuine issue of material fact exists, and that it is entitled to judgment as a

18 See id.; see also Mandy Edwards Depo. at pp. 8 & 19(CR 39 & 43). 19 See Jeremy Melchor Depo. at pp. 16, 22, 23 (CR 27-29). 20 See id. at pp. 13-14 (CR 24-25). 21 See Mandy Edwards Depo at p. 18 (CR 42). 22 See Third Amended Petition at pp. 2-3 (CR 57); see also Mandy Edwards Depo. at p. 16 (CR 40)

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matter of law. TEX R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). As defendants, the Melchors are entitled to summary judgment if they conclusively negated an essential element of Appellants’ negligence cause of action. S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

The Melchors sought a traditional summary judgment arguing that they owed no duty of care to their neighbors as a matter of law based on the facts as pled. A negligence cause of action requires a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). Duty, the threshold inquiry in any negligence case, is a question of law. Chon Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005); Poole, 732 S.W.2d at 311. A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct. See Way v. Boy Scouts of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied).

First the Appellants claim that the Melchors were negligent by failing to control the various individuals on their property. Because the law generally does not impose a duty to control the acts of another person to prevent harm to third parties absent certain special relationships or circumstances (and no such relationships or circumstances are present), the Melchors do not owe Appellees a

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duty to control Mandy Edwards or Jeremy Melchor.

Next, Appellants claim that the Melchors were negligent in “creating a dangerous situation.” In support of this claim the Appellants generally allege that a dangerous situation was created when Appellants entrusted the Property to Jeremy Melchor because Jeremy Melchor had children. However, Texas has not extended claims for negligent entrustment to include entrustment of real property. Negligent entrustment only applies to chattels. Because Appellants only factual allegation is that the Property was negligently entrusted to Jeremy Melchor, the facts do not support a finding of a duty. Finally, Section 302 of the Second Restatement of Torts, upon which Appellants heavily rely, does not apply to the determination of a duty and has only been cited in one Texas case that involved significantly different facts than the case before the court. Section 302 and its companion sections 302A and 303B characterizes certain conduct that involves an unreasonable risk of harm as negligent conduct. However, using Section 302 as a front, Appellants would have the Court apply a very broad duty to landowners who allow children (or whose invitees allow children) on their property, because according to the arguments of Appellants, children are by nature uncontrollable by their parents and it is foreseeable that all children will start fires that damage third party properties.

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Because no duty exists as a matter of law, the Court should affirm the trial court’s summary judgment in favor of Appellees.

ARGUMENT AND AUTHORITIES ON ALL ISSUES

A. Appellees do not owe a duty to third parties to control the actions of minor children who are not in their legal custody or actual care.

Appellants contend in their Third Amended Petition that Appellees negligently exercised control over their invitees and persons permitted to visit and stay upon the premises. However, Texas law does not impose a duty to control the actions of invitees. Rather, Texas law generally imposes no duty to control the acts of another person to prevent harm to third parties absent certain special relationships or circumstances. Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 331 (Tex. 2008); Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Carter v. Abbyad, 299 S.W.3d 892, 895 (Tex. App.—Austin 2009, no pet.). Examples of relationships that have been recognized as giving rise to a duty to control include employer/employee, parent/child, and independent contractor/contractee. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The relationship between an owner of real property and their tenants, invitees, and/or their tenant’s invitees have not been recognized in Texas as one of these special relationships; nor should they be.

TEXAS FAMILY CODE § 41.001 states that a parent or other person who has

the duty of control and reasonable discipline of a child is liable for the negligent ~6~ conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent. See TEX. FAM. CODE § 41.001. Furthermore, the Family Code provides detailed definitions construing the parent child relationship. See TEX. FAM. CODE § 101.001, et seq. The law does not favor shifting the duties imposed by the Family Code from the parent to a non-parent absent unique circumstances, such as when the parent is absent and/or the non-parent has assumed custodial responsibilities. In re Martin, 147 S.W.3d 453, 456 (Tex. App.— Beaumont 2003, pet. denied); McCullough v. Godwin, 214 S.W.3d 793, 808 (Tex. App.—Tyler 2007, no pet.)23. In this particular instance, the summary judgment evidence in this case is clear – started the fire in question at a time when he was being supervised by his mother, Mandy Edwards. Even if the Court were to determine that there is some evidence that started the fire in question, is not the child of Appellees nor had she been placed in their custodial care. Therefore, the duty to control the minor children at issue should not shift to Appellees. See id. Counsel for Appellees is aware of no Texas case that holds that mere ownership of the property upon which a child resides subjects a non-parent owner to custodial responsibility for a child. Such a holding would have unthinkable consequences to property owners across the state.

23 The uncontroverted evidence is that Mandy Edwards assumed custodial care of the children in question the day of the fire.

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Accordingly, Appellees do not have a duty to control the actions of nor

B. Did the Appellees have a duty to control Mandy Edwards’ and/or Jeremy Melchor’s supervision or discipline of their minor children?

Appellants assert that Appellees “negligently failed to monitor and control the actions of their invitees.” To the extent this statement is referring to Jeremy Melchor or Mandy Edwards, Appellees do not have a duty (or a right) to control the manner in which Jeremy Melchor and Mandy Edwards – two adults – parent their children. Again, Texas law generally imposes no duty to control the acts of another person to prevent harm to third parties absent certain special relationships or circumstances. Providence Health Ctr., 262 S.W.3d at 331; Torrington, 46 S.W.3d at 837; Carter, 299 S.W.3d at 895. While the parent-child relationship does place a duty on a parent to control a child, that duty only relates to minor children. See, e.g., Restatement (Second) of Torts § 316 (1965) (stating that "[a] parent is under a duty to exercise reasonable care so to control his minor child" (emphasis added).) No special relationship or circumstance exists that confers a duty on Appellees to control either of the adults in question. In an apparent attempt to create a duty where none exists, Appellants assert that Jeremy Melchor is an agent of, or in a joint enterprise with, Morris and Lisa Melchor for the purpose of raising children. Appellants argue that Jeremy is permitted to live on

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the property for the purpose of providing a stable home and wholesome environment for the Melchors’ grandchildren, and that this creates an agency or joint enterprise relationship for that purpose. Appellants make this argument without citing any case that extends agency or joint enterprise liability to the act of child rearing.

First, Jeremy, can not be the Melchors’ agent for raising or supervising the children because the Melchors’ do not have the duty to raise or supervise the children in the first place. See discussion supra Part A. Secondly, the Melchors can not be in a joint enterprise with Jeremy for the purpose of raising children because a joint enterprise can not exist without an equal right to voice in the direction of the enterprise (in this case providing care/supervision for children). See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002) (listing the elements of joint enterprise). Appellants do not contend that the Melchors had (and they did not have) legal or actual custody of any of the children at issue. Therefore, they do not have an equal right to voice in the direction of parenting decisions. Accordingly, no joint enterprise to parent the children can exist. Therefore, it follows that Appellees do not owe Appellants a duty to control Jeremy Melchor or Mandy Edwards’ parenting decisions and can not be liable for Jeremy Melchor’s or Mandy Edwards’ alleged parenting failures under joint enterprise or agency theories.

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C. Texas does not Recognize a Claim for Negligent Entrustment of Real Property.

Appellants’ Third Amended Petition alleges that Appellees were negligent by “acquiring land in an area at high risk for wildfire and turning it over to their ‘never do well’ adult son, who in turn allowed young children to enter, reside, and wander unsupervised upon their land.”24 Therefore, Appellants’ primary complaint is that Appellees negligently entrusted the Property to Jeremy Melchor. However, no court in Texas has recognized a claim for negligent entrustment of real property.

“Negligent entrustment in Texas applies only to chattels; Texas courts have not extended the concept to include the entrustment of real property.” Scurlock v. Pennell, 177 S.W.3d 222, 226 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A trial court’s granting of summary judgment on a claim for negligent entrustment of real property is proper. See id. at 227.

Appellants’ brief requests the court to allow Appellants to maintain a cause of action against Appellees because “negligence may lie in the creation of a dangerous situation, although the final injury is activated by the conduct of a third person.”25 Assuming this principle were to be applied in this case, the first question should be “what conduct do Appellants allege created the dangerous

24 See Third Amended Petition at pp. 2-3 (CR 57) (emphasis added).

25 See Appellants’ Brief at pp. 19-20.

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situation.” While Appellees’ brief spends considerable amount of time concerning Jeremy’s conduct and various children’s conduct, the only indentified conduct of Appellees (other than the failure to control the previously discussed adults and children) is:

Appellees were aware that more than their own grandchildren were being invited out to their land, but chose to exercise no oversight control, other than to delegate to their son all authority to control conditions on their property.26

Accordingly, Appellants merely allege that Appellees should not have entrusted the property to Jeremy. In Scurlock v. Pennell a vacation home owner’s property caught on fire when an unknown third party broke into the uninhabited vacation home. See 177 S.W.3d 222, 223 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Fire spread to the plaintiff’s neighboring property causing damages. See id. The neighbor sued the homeowner claiming (1) that the absent property owner negligently left the home unlocked and the utilities on, thereby inviting vagrants, and (2) that the absent home owner negligently entrusted the home to a third party who started the fire. See id. at 223-224. With respect to the first factual claim, the court held that the property owner did not owe a duty to their neighbor to prevent unknown criminals from breaking into the house and starting fires because the event was unforeseeable. See id. at 223-225. With respect to the second claim, the

26 See Appellants’ Brief at p. 8 (emphasis added).

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court summarily held that negligent entrustment only applies to chattels and not real property. See id. at 226.

The real factual complaint in Appellants’ Third Amended Petition concerns third parties’ (the two adults and children) behavior not a condition of the property. The only activity Appellees are alleged to have engaged in is allowing Jeremy Melchor and his children to reside on the property. Therefore, the only alleged conduct associated with the creation of “a dangerous situation,” is Appellees entrustment of the property to Jeremy Melchor, who had children. Since negligent entrustment only applies to chattels, Appellees do not owe the Appellants a duty regarding the entrustment of Appellees real property.

D. Section 302 of the Restatement of Torts (Second) does not provide an independent basis for establishing a duty of care because other law specifically denies a duty under the facts as pled and Section 302 not concerned with duty?

Appellants argue that “Restatement of Torts (Second), Section 302, et seq., provides a basis for liability on facts like the one in this case.”27 However, the question in this case is limited to whether or not the Appellants owed a duty of care to the Appellees not to entrust property to Jeremy Melchor.

Restatement of Torts (Second), Section 302, et seq. characterizes certain conduct that involves an unreasonable risk of harm as negligent conduct. See 2 Restatement of Torts 2d, § 302, et seq. (1965). However, the first comment to

27 Appellants’ Brief at p. 13.

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Section 302 is quite clear with respect to the sections use for purpose of establishing a duty:

This Section is concerned only with the negligent character of the actor's conduct, and not with his duty to avoid the unreasonable risk.

. . The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between the actor and the other which gives rise to the duty. . . If the actor is under no duty to the other to act, his failure to do so may be negligent conduct within the rule stated in this Section, but it does not subject him to liability, because of the absence of duty.

Restatement 2d of Torts § 302, comment a (emphasis added). Furthermore, the one case in the history of Texas jurisprudence that mentions this section of the Restatement addressed significantly different facts and did not recognize a duty similar to the duty Appellants request this Court to recognize. In Bicknell v. Lloyd, 635 S.W.2d 150 (Tex. App.—Houston [1st Dist.] 1982, no writ), which Appellants cite in support of their arguments, a minor child was injured when another minor child misappropriated a three wheeled motorized cart from the Defendant. See id. at 151. In that case, the Defendant admitted that at the time the cart was stolen by children he had full control and responsibility for the cart. See id. at 152. On several occasions prior to the incident in that case, children had stolen the car from the Defendant when Defendant had left the key in the ignition. See id. Additionally, the cart was similar to an attractive nuisance in that children would crowd around the cart or climb on the cart when in use. See id. The Plaintiff and a

third party testified that Defendant continued to leave the key in the ignition and ~ 13 ~ left they key in the ignition when the injury occurred. See id. The court held that it was proper for a jury to consider the Defendant’s negligence and reasoned that:

[a] party may be held responsible for a negligent omission which involves an unreasonable risk of harm to another through the foreseeable action of a third person. Restatement (Second)

of Torts § 302, comment j (1965). Thus, even though an injury is the result of the unauthorized action of a third party, the party in possession or control may be liable if the character of the property is such that it "affords a peculiar temptation or opportunity for intentional interference likely to cause harm."

Restatement (Second) of Torts § 302B, comment e, section G, illustration 14 (1965).

See id. (emphasis added).

The facts before this Court are very different. In this case the “property” at issue (raw land) is not “such that it affords a peculiar temptation.” Additionally, and importantly, the Defendant in the Bicknell case was not the owner of the cart. See id. At trial, the Defendant testified that his stepdaughter was the owner of the cart yet he was in possession and control of the cart. See id. Accordingly, the person who was actively controlling the cart at the time of the incident was sued and not the owner of the cart. Therefore, Appellants are requesting this Court to extend the application of Section 302 well beyond its express intended application and well beyond Bicknell’s application in order to create a duty in direct conflict with well established legal principles.

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Appellants argue that the fire was foreseeable, based on an odd assertion:

“That children will play with fire is a matter of common human knowledge.”28 However, Appellants provide no legal basis for this claim. Instead Appellants would have the Court characterize any landlord’s lack of knowledge as to a tenant’s guests as “willful ignorance.” See id. at 7. No basis for such an assertion exists in Texas law.

The Appellants have furthermore failed to plead any fact or present any evidence that Morris and Lisa Melchor should have known that the children under the care of adults on the property would go unsupervised, play with fire, and cause harm to a neighboring property. Such unforeseeable conduct is similar to the conduct addressed by the Texas Supreme Court in Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990). In that case, the Court found a taxicab company not liable for the conduct of its employee who caused grievous harm to a third party. 801 S.W.2d 523, 526 (Tex. 1990). The plaintiff in that case asserted that the taxicab company had a duty to control the actions of its employee. Id. Further, the plaintiffs asserted that the taxicab company was negligent in creating a situation that presented an unreasonable risk of harm by failing to instruct its employee not to engage in dangerous activity, namely carrying a gun. Id. However, because no similar incident had occurred previously, the Court held that

28 See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” at 6 (emphasis added) (SCR 5).

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the employee’s actions were not foreseeable as a matter of law, and no duty to the motorist to warn the company’s drivers not to engage in dangerous activity. Id. The Court elaborated: “To hold that Yellow Cab created a dangerous situation by failing to admonish its drivers not to carry guns is an unwarranted expansion” of exceptions to the general rule that a person has no duty to control the conduct of third persons. Id.

Instead of relying on well-settled law from binding authority, Appellants would have the Court impose an absurd duty of care on the Appellees based on the bizarre and unsupported assertion that it was entirely foreseeable that children from the big city brought to such a rural setting, and allowed to roam at will unsupervised upon thickly wooded and brush-covered land, would at some point likely play with fire and cause grievous harm. The law should not impose a duty on Appellees to direct parents on how to instruct or monitor their children. Furthermore, Appellants’ only claim as to what Appellees did or failed to do is entrust real property to Jeremy Melchor. Such allegation does not support a claim for negligence and no duty exists.

Because negligent entrustment claims are limited to chattels and Section 302 of the Restatement is inapplicable to the issues and facts before the Court, Appellees do not owe a duty to Appellants not to “create a dangerous situation” when the action in question is merely entrusting property to an adult with children.

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CONCLUSION AND PRAYER

The factual allegations in Appellants’ Third Amended Petition only raise negligence claims based on Appellees alleged failure to control children that are not in the legal or actual custody and/or failure to control adult third parties without any special relationship with Appellees. Because the law does not impose a duty to control such third parties for the protection of Appellees, summary judgment was proper. Furthermore, Texas has not extended negligent entrustment claims beyond chattels. Therefore, no duty exists to Appellants. Finally, Restatement of Torts Section 302 does not alter other legal principles or support the creation of a new duty. Wherefore, Appellees Morris and Lisa Melchor respectfully pray that this Court affirm the trial court’s Summary Judgment.

Respectfully submitted,

NAMAN, HOWELL, SMITH & LEE, PLLC 8310 N. Capital of Texas Highway, Suite 490

Austin, Texas 78731

(512) 474-1901

FAX (512) 474-1901

By: ___/s/ Jay P. Lea____________ Jay P. Lea

State Bar No. 24065923

jlea@namanhowell.com

ATTORNEYS FOR APPELLEES

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CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i), I hereby certify that the foregoing Brief of Appellee was computer-generated using Microsoft Word for Windows (2007). According to the word-count function of that program, this Brief of Appellee contains 4,206 words, excluding any portions of this Brief exempted by TEX. R. APP. P. 9.4(i)(1).

__/s/ Jay P. Lea _____________ Jay P. Lea

CERTIFICATE OF SERVICE

Pursuant to TEX. R. APP. P. 9.5, I hereby certify that a true and correct copy of the foregoing Brief of Appellee was served via facsimile and via e-service to following counsel on this 10th day of April, 2015.

Paul C. Velte, IV 109 E. Hopkins St. Suite 204 San Marcos, Texas 78666 Facsimile (512) 476-9504 Velte@PTexans.com

__/s/ Jay P. Lea _____________ Jay P. Lea

Appendix

1. Plaintiffs’ Third Amended Petition 2. Appellants Motion for Summary Judgment

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No. C 1-CV-12-008224

OONTITEL

CAROLTITEL § IN THE COUNTY COURT Plaintiffs

v. § ATLAW#2

JEREMY DAVID MELCHOR. § TRAVIS COUNTY, TEXAS MORRIS G. MELCHOR.

LISA MELCHOR,

MANDY EDWARDS

Defendants

THIRD AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now Plaintiffs to make this complaint of the actions of Defendants and their children, for damages caused when one or more of Defendants' children intentionally or negligently started a fire when a burn ban was in effect on July 11, 2011. For causes of action, Plaintiffs would show the Court:

I. Parties & Venue

Plaintiffs are individuals. This cause of action arose in Travis County. Defendant Jeremy Melchor is an individual, who resides in Travis County, Texas, and is already a party to this suit.

Defendant Mandy Edwards is an individual residing in Travis County, who may be served with citation at 693 Pickett Ln., Liberty Hill, TX 78642, or where-ever he or she may be found.

Defendants Morris and Lisa Melchor are individuals who have answered this suit.

IIIII~ 11~1111111111111111111111111111111111111111111 000814761 II. Discovery Level

Plaintiffs believe discovery should proceed under Rule 190.3 (level II). Plaintiffs seek monetary relief in an amount between $200,000.00 and $250,000.00, and within the jurisdictional limits of this court.

III. Cause of Action: Negligence A. By parents or those with parental authority.

On or about July 1J, 2011, children of two Defendants, Jeremy Melchor and Mandy Edwards, negligently or intentionally set a fire to grass, at a time of extreme drought and dry conditions throughout the State of Texas. This fire quickly raged out of control and consumed a large swath of trees as it moved toward Plaintiff's residence. Plaintiffs believe the children were poorly supervised by adults and Defendants were negligent in providing supervision, and also for allowing the children to possess a cigarette lighter used to start said fire. Defendants bad the duty of control and reasonable discipline oftbese children and are vicariously liable under Chapter 41, Texas Family Code.

They are also liable for their own negligence as the possessors of land by failing to do anything a reasonable person would do in possession of highly combustible land in its natural (and drought-stricken) state to prevent a wiJdfire intentionally or negligently set by children they invited and allowed to roam unsupervised upon the premises and surrounding lands, as in this case, where children were allowed to go unsupervised with a cigarette lighter in hand. They owed a duty to surrounding property owners to take reasonable steps to prevent any type of fire during a time when a county burn ban was in effect. By violating a county ordinance designed to prevent the very type of harm that Defendants' negligence caused, such constitutes negligence per se. B. By landowners.

Defendants Morris and Lisa Melchor, (hereafter "Senior Melchors") as the owners of the property, negligently created a recipe for disaster by acquiring land in an area at high risk for wildfire and turning it over to their 'never do well' adult son, who in tum allowed young children

3

to enter, reside, and wander unsupervised upon their land, and neighboring heavily wooded property as well. Said defendants negligently exercised control over their land and over their invitees and persons pennitted to visit and stay upon their premises. Defendants negligently failed to monitor and control the activities of their invitees while upon the Defendant's land, which activities caused grievous hann to Plaintiffs. They failed to do anything a reasonable owner would do in possession of highly combustible land in its natural (and drought-stricken) state to prevent a wildfire intentionally or negligently set by children knowingly invited upon the premises.

At all material times, Defendant Jeremy Melchor was acting as the agent of the Senior Melchors, in his role as manager of his parent's premises, or they were working together in a joint enterprise for the purposes of providing a good home for three children residing there, and to fix up the home and property, for its eventual resale.

PRAYER

The Plaintiffs pray that this cause be tried by jury. and that final judgment be given for their actual damages. in addition to any such other relief. both in law and in equity, to which Plaintiffs may prove themselves justly entitled.

Respectfully Submitted,

Mt1h

Paul C. Velte IV

109 E. Hopkins St., Suite 204 San Marcos, TX 78666

512-353-2299 (San Marcos)

Fax 512-476-9504

Email: velte@ptexans.com

Bar #20541700

ATTORNEY FOR PLAINTIFFS

4

CERTIFICATE OF SERVICE

I certifY that I have served a copy of this document upon all counsel of record on October 22,2013.

Paul C. Velte IV

FErt

138®ptemb®'27P12:1S

Dm® 1

County.Ctesk

Tmwh County

CAUSENO.C-l.CV-12-008224

DONTITEL& IN THE COUNTy COURT CAROL TITEL, §

Plaintiffs, §

V.

AT LAW NO. 2

JEREMY DAVID MELCHOR, MORRIS G. MELCHOR, LISA MELCHOR and MANDY EDWARDS, §

Defendants. § TRAVISCOUNTT,TEXAS

DEFENDANTSJEREMYDAVIDMELCHOR,MORRISG, MELCHORANDLISA MELCHOR'S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAIDCOURT:

COMESNOW Defendants,JEREMYDAVIDMELCHOR,MORRIS0.MELCHORand

LISA MELCHOR, filing this Motion for Summary Judgment, and in support thereof, would respectfully show unto the Court the following:

INTRODUCTION

1. Plaintiffs have broughtthis lawsuit claiming they suffered harm asa result ofa fire that originatedonneighboringproperty ownedbyDefendantsMorrisandLisaMelcbor. Plaintiffs'First AmendedPetition Sectionffl, ^ 1, 2.

2. Plaintiffs claim that Defendant Jeremy Melchor negligently exercised a duty ofcontrol and

reasonable discipline over a child, who setfire to grass ontheproperty owned byDefendants Moms andUsaMelchor,andthefirespreadtoproperty ownedbyPlaintiffs. PlaintiffsallegethatChapter

DEFENDANTS'MOTIONFORSUMMARYJUDGMENT PAGEt OF 8 102519589. DOC/3)

41oftheTexasFamilyCodeprovidesthebasisforDefendantJeremyMelchor'sdutyofcare. Id. Section III, 11.

3. PlaintiffsfurtherclaimthatDefendantsMorrisandUsaMelchor,asownersoftheproperty, negligentlyexercisedcontroloverpersonsallowedtovisitandstayontheirproperty. Id.Sectionffl, 112.

SUMMARYJUDRMENTSTANDARD

4. To prevail on a motion for summaiy judgment, a party must conclusively establish the absence ofanygenuine question ofmaterial factandthatheisentitled tojudgment asa matter of law, TEX. R. Civ. P. 166a(c).

5. A defendantwhoconclusively negatesatleastoneoftheessentialelements ofa causeof action is entitled to summary judgment asto that causeofaction. Randall's FoodMarkets, Inc. v. Johnson, S9\ S, W.2d640, 644(Tex. l995); WomickCo. v. C(uw, 856S. W.2d732, 733CTex. 1993). All doubts abouttheexistence ofa genuine issue ofmaterial factareresolved against the movant. Randall's, W\ S.W.2dat644;GreatAm. Reserve Ins. Co.v. SanAntonio Plumbing Supply Co.,391 S.W.2d41, 47(Tex. l965).

SUMMARY JUDGMENT EVIDENCE

6. To support the facts inthis motion. Defendants include thefollowing summary judgment evidenceinanappendixfiledwiththismotionandincorporatestheevidenceintothismotionby reference.

ExhibitA: SelectedExcerpts oftheVideotaped OralDeposition ofDefendantJeremyDavid Melchor;

Exhibit B: Selected Excerpts of the Videotaped Oral Deposition ofDefendant Mwidy

DEFENDANTS'MCmON FORSUMMARYJUDGMENT PAGE 2 OF 8 (02S19W.DOC/1',

\^

Edwards; and

ExhibitC: SelectedExcerptsoftheOralDepositionofDonaldLeeTitel.

SUMMARYJUpffWWFACTS

7. JeremyMelcherresidesat693PickettLaneinLibertyHill,Texasalongwithhisgirifnend, MandyEdwards. Exhibit"A," MelchorDep.13:24. 14:4;Exhibit"B," EdwardsDcp.18:23-19:4. Jeremy is a tenant on the property, occupying pursuant to anoral leasewith his father Morris Mclchor andstepmother UsaMelchor, whoowntheproperty at693 PickettLane. Exhibit"A," MelchorDep. 7:14-8:6.

8. Mandy Edwardsismother totwo minor children, and fi-om previous relationships. Exhibit "A," Melchor Dep. 14:19-15:10. 9. resides in Alabama with his father. Exhibit "A," Melchor Dep. 16:16;

Exhibit "B," Edwanls Dep. at 8:15-20. 10. does not reside, and never has resided, at 693 Pickett Lane. Exhibit "B/

Edwards Dep. at 7:25. 8:20; Exhibit "A," Melchor Dep. 16:2-12, Jeremy Melcher is not parentorguardian,nordoesbeexerciseanyparentalcontrolordisciplineover Exhibit "A," Melchor Dep. 22:8.24:1.

11. InJulyof2011 wasinLibertyHill,Texasvisitinghismotherandstaying withherat693PickettLane. Exhibit"B," EdwardsDep.16:1-5. Onthemorningofjuly 11, 2011, starteda fireina grassyareanearoraroundthehouseat693PickettLane. /</.at 37:1-18. The fire spread to neighboring property ownedbyPlaintiffs. allegedly causing property damage. Exhibit"A." Melchor Dep. 31:18-20;Exhibit"C," Titel Dep.39:23-43:17 12. OntheeveningofJuly11, 2011, toldhismotherthathehadstartedthefire.

DEFENDANTS'MOITONFORSUMMARYJUDGMENT PAGE3 OF 8 <02S19S»9.00C/3l

B

Exhibit"B," EdwardsDep. 34:8.23, 37:1-18.

13. MandyEdwards mother,waspresentat693PickettLanewhenthefire started. Exhibit"A," MelchorDep.28:8-19, 30:18.23;Exhibit"B," EdwardsDep.39:1.17. No otheradult,includingDefendants JeremyMelchor, MorrisMelchorandLisaMelchor, werepresent at 693 Pickett Laneorexercising anyparental control over when the fire started. Exhibit "A," Melchor Dep. 28:8-19, 30:18. 23; EKhibit«B," Edwards Dcp. 39:1-17.

ARGUAffiNT & AUTHORITIES

A. DefcndanS Jwemy Melchor is entitled to Summary Judpaent because he did not oweanyduty under theTexas Family Codeto exercise control over 14. Defendant Jeremy Melchor is entitled to judgment as a matter of law because the uncontradictcdsummaryjudgmentevidenceestablishesthatthereisnogenuineissueofmaterialfact regarding the following element(s) ofAc PlainttfFs cause ofaction. To establish tort liability a plaintiffmust initiallyprovetheexistenceandbreachofa dutyowedtohimbydefendant.Ofis EngineeringCorpv.dark,668S.W.2d307, 309(Tex.1983). Inthepresentcasetheexistenceof a duty simply doesnot exist,

15. Texas lawgenerally imposes noduty tocontrol theactsofanotherpersonto prevent harmto thirdpartiesabsentcertainspecialrelationships orcircumstances. Providence HealthCtr.v.Dowell, 262 S.W.3d324, 331 Qex. 2008); Torrington Co. v, Stutzman, 46 S. W.3d 829, 837(Tex. 2000); Carterv. Abbyad,299S.W.3d892,895(Tex.App.Austin2009). TheparenVchildrelationshipis oneexceptiontothisgeneralrule. GreaterHoustonTramp. Co.v, Phillips.801S.W.2d523,525 (Tex. 1990); TEX. FAM. CODEANN. §§41. 001(1), 151. 001(d).

DEI'ENOANTS' MOTION FOR SUMMARY JUDGMBNT PACE 4 OF 8 102510W. DOC/3)

15

16. UndertheTexasFamilyCode,a parentorotherperson"whohasthedutyofcontrol and reasonable discipline ofa child" may beheld liable forproperty damage caused bythe negligent conduct ofthe child that is reasonably attributable to the negligent failure ofthe parent or other

person to exercise that duty. TEX. FAM. CODE ANN. § 41. 001(1). 17. There is no basis under Texas law for imposing this duty of control and discipline on an

unrelated third-peraon whohasnotvoluntarily assumed anyparental rights orobligations overthe child. See Coons-Andersen v. Andersen, 104 S. W.3d 630, 635 fTex. App. -Dallas 2003, no pet. );

Cwninghamv. Ansorena-Cunnlngham, 2009WL2902718*6-7CTex.App.AustinAug.26, 2009). In fact, the law does not favor shifting the duties imposed bythe Family Code from the parent to a

non-parent absentuniquecircumstances notpresentinthecaseathand. See,e, g; TEX.FAM,CODE ANN. § 151.001(d); Inre Martin, 147S.W.3d453, 456(Tex. App.-Beaumont 2003,pet, denied); McCullough v. Godwin, 214 S.W. 3d 793, 808 (Tex. App. -Tyler 2007, no pet).

18. Inthealternative, i fJeremyMelchordidhavea dutyundertheTexasFamilyCode,hedidnot breachthatdutybecausethefirewasnotforeseeable. SeeTimberwalkApartments. Partners, Inc.v. Cam, 972 S.W.2d 749, 756 fTex. 1998); Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999).

B. DefendantsMorris andLisaMelchorareentitled to SummaryJudgmentbecause

theydidnotoweanydutytoPlaintifftoprevent thedamagesunderthecircumstances.

19. Defendants Morris andLisaMelchorareentidedtojudgment asa matter oflawbecausethe

uncontradicted summaryjudgment evidenceestablishes thatthereisnogenuineissueofmaterial fact regarding thefollowing elements) ofthePlaintiffs causeofaction. To establishtort liability a plaintiff must initially prove the existence and breachofa duty owed to him bydefendant. Otis

DEFENDANTS' MOTION FOR SUMMARY JUDOMENT PAOESOFS (02$19S89. DOC/3)

EngineeringCar,668S.W.2dat309. Inthepresentcasetheexistenceofa dutysimplydoesnot exist.

20. TexaslawgeneraUyimposesnodutytocontrol theactsofanotherpersontopreventharmto third parties absentcertainspecial relationships orcircumstances. Providence HealthCtr., 262 S.W.3dat331;Tomngton, 46S.W.3dat837;Carter.299S.W.3dat895. Examplesofrelationships that have been recognized as giving rise to a duty to control include employer/employee, parent/child, andindependent contractor/contractee. Greater HoustonTransp. Co,801S.W.2dat 525.

21. There isnobasisunderTexas lawfor imposing a duty onlandowners to control theconduct ofunknown third-persons on their property.

22. Inthe alternative, ifMorris and LisaMelcbor didhave a duty. theydidnot breach that duty because the fire wasnot foreseeable. SeeTimberwalk, 972 S,W.2dat 756; Melton, 5 S. W. 3dat655.

ALTERNATIVERELIEF

23. Inthealternative, iftheCourtdeniesanypartofDefendants' motion forsummaiyjudgment, DefendantsasktheCourttosignanorderspecifyingthefactsthatareestablishedasa matteroflaw anddirecting anyfurther proceedings asarejust. SeeTEX.R.Civ. P. 166a(e).

CONCLUSION

24. Defendants Jeremy Melcher, Morris Melchor andLisaMelchor areentitled tojudgment as a matteroflaw. Thisisanactionbasedonnegligence,yetDefendantsJeremyMeicherandMomsand LisaMelchordidnotoweanydutytoPlaintiffstopreventthedamagesunderthecircumstancesof thiscase.Evenifa dutytopreventdamagesdidexist,noneoftheseDefendants breachedtheirduty. Thesummaryjudgment factsleadtoonlyoneconclusion: startedthefire,andthere

PAGE 6 Oi: 8

DEFENDANTS'MOTIONFORSUMMARYJUDGMENT (02J19S89.DOC/1}

}k

isnolegalbasisforimputing legalliabilityontoDefendantsJcrcmyMelchor, Morris Melchor or Lisa Melchor.

25. Therefore, thesummaryjudgment evidenceconclusively showsthattherearenogenuine issuesofmaterial factregardingthePlaintiffs' claims,andDefendantsJeremyMclchor,Moiris Melchor, andLisaMelchor areentitled tojudgment asa matter oflaw.

PRAYER

WHEREFORE,DefendantrequeststhatthisCourtgrantthismotionandsignanorderfor final summaiyjudgment.

Respectfullysubmitted,

NAMAN, HOWELL,SMTTH& LEE, PLLC 8310 Capital ofTexas Highway North, Suite 490 Austin, Texas 78731

(512)/|79.0300

FAX^12)474. 1901

BY:

JamesW. Goldsmith, Jr.

StateBarNo. 24051570

AfrORNEYS FOR DEFENDANTS JEREMY DAVID MELCHOR, MORRIS 0. MELCHOR and USA MELCHOR

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PAOE70F8 (OM19589.DOC/3)

n.

NOTICE OF REARING

Be advised that the above andforegoing Motion for Summary Judgment is sethearing on Tuesday,October29, 2013at9:00a.m. inthe^uo<yCourtatLawNo.2 ofTravisCounty, Texas.

W. Goldsmith, Jr.

CERTIFICATEOFSERVICE

This isto certify that a true andcorrect copy oftheabove andforegoing wasserved uponthe

parties andcounsel ofrecordforPlaintiff, asshownbelow, inaccordance withRules21and21(a)of the Texas Rules of Civil Procedure, on the 27th day ofSeptember, 2013.

PaulCVelteIV Sent Via Fscsimttc to: (512) 476-9504 Attorney at Law 109E. HopkinsSt., Ste. 204 San Marcos, TX 78666

MandyEdwards Sect Vis Certified Mail, Return Receipt Requested 693 PickettLane Leander,TX 78641

FW.Goldsmith, Jr.

DEFENDANTS' MOTION FOR SUMMARY JUDOMENT PAGE 8 OF 8 (02519589. DOC/3}

JEREMY DAVID MELCHOR 3/4/2013

CAUSE NO. C-l-CV-12-008224

DON TITEL & CAROL TITEL, ) IN THE COUNTY COURT Plaintiffs, )

)

vs. ) AT LAW NO. 2 )

JEREMY DAVID MELCHOR, > Defendant. ) TRAVIS COUNTY, TEXAS

VIDEOTAPED ORAL DEPOSITION OF JEREMY DAVID MELCHOR

MARCH 4, 2013

VIDEOTAPED ORAL DEPOSITION OF JEREMY DAVID MELCHOR, produced as a witness at the instance of the Plaintiffs, and duly sworn, was taken in the above-styled and numbered cause on the 4th of March, 2013 from 1:03 p. m. to 2:25

p. m., before Amber Kirton, CSR, in and for the State of Texas, reported by machine shorthand, at the law offices of Naman, Howell, Smith fi Lee, PLLC, 8310 Capital of Texas Highway, Suite 490, Austin, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions attached hereto.

U. S. LEGAL SUPPORT - AUSTIN, TEXAS (600) 734-4995

n

3/4/2013

JEREMY DAVID MELCHOR

I INDEX 2 3 Appearances

4 JEREMY DAVID MELCHOR 5 Examination by Mr. Velte

66

6 Signature and Changes,

68

7 Reporter's Certificate, 8 Further Certification................... <........... 70 9

10 EXHIBIT 11 INDEX

12 13 NO. DESCRIPTION PAGE 14 1 Plat....,............... >-.... -..... -.... '... - 7 15 2 Letter to Paul Velte from Jeremy Melchor........ 55 16 17 18 19 20 21 22 23 24 25

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3/4/2013

JEREMV DAVID MELCHOR

1 JEREMY DAVID MELCHOR,

2 having been duly sworn testifies as follows: 3 EXAMINATION

4 BY MR. VELTE:

5 Q. Hi. Is it Melchor or Melchor? 6 A. Melchor.

7 Q. All right. First name Jeremy? 8 A. Yes, sir.

9 Q. And what's your middle name? 10 A. David.

11 Q. What's your date of birth? 12 A. 12/23/76.

13 Q. Now, I sent a notice to your lawyer, 14 Mr. Goldsmith, of a notice of intent to take your 15 deposition today.

16 A. Yes, sir.

17 Q. And that notice - did he provide you a copy? 18 A. Yes, sir.

19 Q. And so you saw in the notice where I said to 20 bring some items with you?

21 A. I did, but I don't have any of those items. 22 Q. Okay. So T had asked you for three items. One 23 was leases and deeds related to your residence known 24 locally as 693 Pickett Lane. 25 A. Okay.

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JEREMY DAVID MELCHOR 3/4/2013

1 Q. All right. Now, who owns the land that is at 693 2 Pickett Lane?

3 A. My father. 4 Q. Okay. Now, that would be -- I want to draw 5 you --

6 MR. VELTE: Let me get this marked. 7 (Exhibit No. 1 marked.)

8 Q. (BY MR. VELTE) I want to show you what we've 9 marked as Deposition Exhibit No. 1, and I would submit to 10 you that's a blow-up of the property tax plat records. 11 And ask you to take a look at that. And do you see 12 Pickett Lane and Ivy Lane on there? 13 A. Yes. 14 Q. And can you identify your property where you're 15 living? 16 A. I believe it's this 355413, I think. 17 Q. Okay. And that would be that little blue square 18 that's kind of in the - I guess you'd say below Ivy Lane 19 on that map? 20 A. Yes, sir. 21 Q. Okay. Now, how big is that parcel? 22 A. One acre. 23 Q. It's one acre, okay. And the larger parcel, do 24 you know how big it is? 25 A. I think it's 18 - 18 acres.

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1 Q. Okay. 2 A. 18 point something. I'm not exactly sure. I 3 don't own it. 4 Q. Now, the ~ your father owns the one acre and the 5 other 18. Do you know who owns it? 6 A. He has -- he owns it now.

7 Q. Okay. So he recently acquired that? 8 A, Correct.

9 Q, Okay. Do you know who the previous owner was? 10 A. I believe her name was Yolanda Rodriguez. 11 Q. And when did your father acquire the other 18 12 acres there that surrounds - 13 A. Don't know. You'd have to talk to him. 14 Q. You don't know a time frame? 15 A. I don't know. 16 Q. Well, I mean, was it last year? 17 A. I think so. I don't know exactly when, though. 18 It's not - I don't - it's his business, not mine. 19 Q. Do you know why he bought it? 20 MR. GOLDSMITH: Objection; form. 21 A. Could you restate the question? 22 Q. (BY MR. VELTE) Do you know why your father 23 bought the other 18 acres surrounding the acre that you're 24 living on? 25 MR. GOLDSMITH: Objection; form.

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1 side of your map is missing. 2 Q. So it's further down Ivy Lane? 3 A. It's at the end, yes. They're the last house on 4 the right at the dead-end.

5 Q. All right. So then you don't know the neighbors 6 that live at 355406?

7 A. I don't know.

8 Q. And you don't know the Titels either that live 9 across the road?

10 A. No, sir. 11 Q. Any other neighbors you know? 12 A. Just the ones I gave you.

13 Q. And you don't know the people on the other side 14 of Pickett Lane?

15 A. No. 16 Q. Would you agree that in a perfect world it's a 17 good idea to stay on good terms with your neighbors? 18 A. Yes, sir, and I am. 19 Q. You are? 20 A. With the ones that I know, yes, sir.

21 Q. Okay. Do you agree that it's a good idea to get 22 to know your neighbors?

23 A. Yes, sir. 24 0. Is it true that - well, let's ask about who 25 lives at your residence there at 693 Pickett Lane. At the

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1 time of this fire in July of 2011 who was residing there 2 at 693 Picket! Lane?

3 A. Myself, my son , my other son and 4 my daughter, and Mandy Edwards. 5 Q. Now, were there other kids there?

6 A. Yes. 7 Q. Who were they? 8 A. 9 Q. Any others? 10 A. I don't remember. I want to say but 11 I don't remember for sure if he was there or not. 12 Q. Okay. Now, let's talk about each one. So you 13 have two boys, and ? 14 A. and . 15 Q. , I'm sorry. And ? 16 A. Correct. 17 Q. So a daughter and two boys? 18 A. Uh-huh.

19 Q. What's your relationship with Mandy Edwards? 20 A. She's my girlfriend.

21 Q. Y'all are not married? 22 A. No. 23 Q. Does she still reside there? 24 A. Yes. 25 Q. And does she have children by previous

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1 relationship? 2 A. Yes.

3 Q. Okay. And who would those be? 4 A. I'm sorry, her children? 5 Q. Yes.

6 A. and 7 Q. And how old is ? 8 A. 13, I believe.

9 Q. Okay. And 10 A. Right now nine.

11 Q. And what is your relationship to and 12 13 A. They're my girlfriend's kids. 14 Q. What about - are all these children still 15 residing there now? 16 A. No, sir.

17 Q. Okay. Where are -- where are they? 18 A. Well, lives with his mother now as of 19 last year and and haven't lived there. 20 They live with their parent. 21 Q. Who are their parents? 22 A. n's is Daniel McKeever and is Kevin 23 Smith.

24 Q. And so each of those boys is now living with 25 their other parent?

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1 A. They have always, yes.

2 Q. You said they have always lived with their other 3 parents?

4 A. Yes.

5 Q. So they don't reside at your place? 6 A. No.

7 Q. Now, what about in July of 2011? Were they 8 residing at your place then?

9 A. No, they were on visit. 10 Q. So is it true they have never resided there, they

11 have always just come and stayed, what, for short periods? 12 A. Correct.

13 Q. And how frequently was that, every first, third, 14 fifth weekend?

15 A. No. I don't know dates, but it's just kind of

16 sporadically. I mean, lives in Alabama, not here, so 17 I mean, it's kind of - we can't get him first, third and

18 fifth weekend. I don't have money to do that. 19 lives in Bastrop and generally comes - just depends. 20 Three to four weeks. 21 Q. Whenever the parents agree? 22 A. No, it's not necessarily that. Just whenever he 23 has time. You know, they keep him pretty busy in school 24 and different after-school functions and stuff so whenever 25 he has time.

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1 Edwards with six children. 2 A. Correct. 3 Q. Now, I think you named five, 4 A. Okay. 5 Q. Who would the sixth child, have been? 6 A. I don't believe there was one. I believe the

7 news misreported, like they generally do. 8 Q. Ail right. Now, what is your relationship with 9 ? Does he call you Dad ever?

10 A. No. 11 Q. What does he call you? 12 A. Jeremy. 13 Q. And are you, like, his stepparent? 14 A. No.

15 Q. Whose job is it to discipline him? 16 A. I assume his mother and father.

17 Q. So you don't exercise any discipline over 18 19 A. No.

20 Q. What about the other child, Mandy's other boy, 21 ? 22 A. No.

23 Q. No. So you let Mother do all the - you let 24 Mandy, as mother, exercise all the discipline over those 25 two boys?

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1 A. Yesr sir.

2 Q. Was ever left in your care? 3 A. Not by himself, no.

4 Q. What about you and the other boys? 5 A. My kids?

6 Q. Yes. 7 A. Well, of course.

8 Q. So there are times, then, when you're the only 9 adult there with those boys?

10 A. Definitely.

11 Q. So you had authority to supervise them? 12 A. When?

13 Q. Well, any time he was left in your care. 14 A. Yeah.

15 Q. Have you ever had to discipline him? 16 A. ?

17 Q. Yes. 18 A. No.

19 Q. You've never had to spank him?

20 A. That's not my place. She's my girlfriend but not 21 my wife. It's not my place to discipline her children. 22 Q. So your testimony is no? 23 A. Correct.

24 Q. You've never had to spank the boy. Have you ever 25 had to punish him in any other way?

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1 A. Testimony was no.

2 Q. Now, father is Daniel McKeever and 3 you say that he lives out of state? 4 A. Correct.

5 Q. What state does he live in? 6 A. Alabama. 7 Q. And have you ever met that man? 8 A. One time, yes, sir.

9 Q. Okay. And does he - do you know what he does 10 for a living?

11 A. I haven't got a clue.

12 Q. Do you know what city or county he resides in in 13 Alabama?

14 A. No, sir. 15 Q. Do you know his phone number? 16 A. No, sir.

17 Q. W.hat about r's father, Kevin Smith? 18 A. Are you asking me the same questions? 19 Q. Yes. Do you know where he resides?

20 A. Yes, sir. 21 Q. Where? 22 A. Bastrop. 23 Q. Do you know address? 24 A. No, sir. 25 Q. So he lives in the City of Bastrop?

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1 Q. And where does she reside?

2 A. Smithville. 3 Q. Now, is older fchan ?

4 A. I think they're the same age. Hers is in May. I 5 think they're the same age, a few months apart.

6 Q. Which one would be older? 7 A. Probably Maybe. I'm not certain. 8 Q. Okay. Now, regarding the five children, then, 9 that would be at this residence at least on July llth of

10 2011, who normally had charge of these five children? 11 A. While I was at work?

12 Q. Yeah. 13 A. Mandy. 14 Q. What was the usual routine - daily routine? You 15 went to work in the mornings? 16 A. Yes, sir.

17 Q. Okay. And you left her in charge of the children 18 at home?

19 A. Correct. 20 Q. And is it true that the children were often left 21 unsupervised? 22 A. No. That's false. 23 Q. Is it true that CPS has been called out to 24 investigate? 25 A. That's true.

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30

1 Q. Are you aware in the fire marshal's report where 2 it says that Mandy Edwards sent the kids outside to eat 3 lunch?

4 A. I haven't seen the report so I couldn't tell you. 5 Q. Okay. I would ask you -- are you a smoker? 6 A. Yes.

7 Q. Is Mandy Edwards a smoker?

8 A. I guess you could say that, yeah. 9 Q. Is it true that one or more of your children were

10 smoking cigarettes at one point in the past? 11 A. False. 12 Q. So you're not aware that one of your boys offered 13 a neighbor boy a cigarette? 14 A. No, I'm not. 15 Q. Another neighbor of yours says that your children 16 run loose and are not supervised. 17 A. That's 100 percent false. 18 Q. Now, on the day of the fire where were you? 19 A. At work. 20 Q. At what location? 21 A, Cedar Park.

22 Q. At the Poky Jo's restaurant? 23 A. Smokey Mo's.

24 Q. Smokey Mo's. I'm sorry. 25 A. I'm sorry. You've called it three different

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JEREMY DAVID MELCHOR 3/4/2013

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1 things since we've been sitting here. Yes, 1431 and 183. 2 Q. Okay. And do you know who set the fire? 3 A. No.

4 Q. All right. So as we sit here today, I guess a 5 year and a half later, you don't know who started the 6 fire?

7 A. All I have is hearsay, so I don't know. 8 Q. Well, what is the hearsay you have? 9 A. What I heard was that set the fire, thafc

10 they were going out to eat and that's - I don't even 11 know. He found a lighter or something is what I've gotten

12 from, I mean, everybody. That's all I know. I don't

13 really know what actually happened that day. I wasn't 14 there.

15 Q. But surely yo.u've interviewed Mandy and the 16 children about what happened, right? 17 A. (Witness nods head.) 18 Q. So what they're telling you is that 19 started it with a lighter? 20 A. That's what I've heard, yes, sir.

21 Q. And you've taken no interest in how that 22 happened? Do you know where it happened? Do you know why 23 it happened or any of that?

24 A. I know where it happened. I saw it after the 25 fact.

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 1

CAUSE NO. Cl-CV-12-008224

DON TITEL ) IN THE COUNTY COURT CAROL TITEL )

Plaintiffs )

)

vs. AT LAW NO. 2

JEREMY DAVID MELCHOR, Defendant TRAVIS COUNTY, TEXAS

A******************************

VIDEOTAPED ORAL DEPOSITION OF MANDY EDWARDS

April 1, 2013

******. **********************-***

VIDEOTAPED ORAL DEPOSITION OF MANDY EDWARDS,

produced as a witness at the instance of the Plaintiffs, and duly sworn, was taken in the above-styled and numbered cause on the 1st day of April, 2013, from 12:59 P. M. to 2:25 P. M., before DOTTIE NORMAN, Certified Shorthand Reporter in and for the State of Texas, reported by machine shorthand, at the offices of The Texas Law Center, 1414 Colorado Street, Austin/

Texas, pursuant to the Texas Rules of Civil Procedure and.the i^MssL^/^ZSM

provisions attached hereto.

Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 2

1 APPEARANCES 2 FOR THE PLAINTIFFS:

3 PAUL C. VELTE, IV Attorney at Law

4 109 E. Hopkins St., Suite 204 San Marcos, Texas 78666 5

6 FOR THE DEFENDANT:

7 NAMAN HOWELL SMITH & LEE, PLLC 8 By: JIM GOLDSMITH 8310 N. Capital of Texas, Suite 490 9 Austin, Texas 78731

10 11

12 13

14 15 16 17 18 19 20 21 22 23 24 25

.y

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 3

1 INDEX

2 PAGE 3 Appearances 2

4 MANDY EDWARDS: 5 Examination by Mr. Velte 4

6 Examination by Mr. Goldsmith 69

7 Correction Sheet 73 8 Signature Page 74

9 Reporter's Certificate 75 10 11 EXHIBITS 12 NUMBER DESCRIPTION PAGE 13 1 Temporary Orders dated 10-8-09 6

14 2 Citation 7

15 16 17 18 19

20 21

22 23 24 25

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 4

1 MANDY EDWARDS,

2 having been first duly sworn, testified as follows: 3 EXAMINATION

4 BY MR. VELTE:

5 Q. All right. Your name is Mandy Edwards? 6 A. Yes, sir.

1 Q. And, Mandy, do you have a cell phone? 8 A. I do have a cell phone.

9 Q. Okay. If it goes off -- I mean, do you mind turning 10 it off -

11 A. Oh, it's off, yes. 12 Q. -- so we can do - okay. I just didn't want to have 13 any interruptions. 14 MR. GOLDSMITH: Thanks for the reminder.

15 Q. (By Mr. Velte) Have you ever had your deposition 16 taken before?

17 A. No, sir.

18 Q. Do you understand what a deposition is? 19 A. Kind of, somewhat.

20 Q. Has anybody explained it to you? 21 A. Just a little bit. I'm basically just here to tell 22 my side of the story, the truth. 23 Q. Okay. 24 A. As much as I know.

25 Q. That's why you are sworn in.

-..?

-y,

Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 1

1 A. So I figured if that helps.

2 Q. All right. 3 A. That's the last known address that I do know of, so 4

5 Q. All right. 6 MR. VELTE: Let's mark that as Exhibit 2.

7 {Exhibit No. 2 marked) 8 MR. VELTE: Can I see Exhibit No. 2? 9 Q. (By Mr. Velte) So Exhibit 2 is three pages. Let me 10 just take a look at it. 11 A. Uh-huh. Okay.

12 MR. GOLDSMITH: Maybe we can take a couple of 13 minutes just to look at both of them and then swap. 14 MR. VELTE: You want to switch?

15 MR. GOLDSMITH: Sure.

16 Q. (By Mr. Velte) All right. Let me ask you about 17 Exhibit No. 2 first.

18 A. Okay. 19 Q. It states that it's a citation of - apparently you

20 sued Mr. McKeever regarding child support or child custody of 21

22 A. Actually, he sued me. He went for a summer 23 visitation and then I was served with that. And he didn't want 24 to return his son, so that's what I was faced with. 25 Q. Oh. So you sent your son to be with father for

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 8

1 the suminer? 2 A. Uh-huh, in 2009. 3 Q. And he didn't return him? 4 A. Yeah.

5 Q. I see. So you had to - you sued in Texas? 6 A. Yes.

7 Q. And did Mr. McKeever sue in Alabama?

8 A. No. Actually, that case is still open. And for two 9 years I have been trying to contact his lawyer and nothing. 10 Q. Okay.

11 A. Sorry. That -- that case is a little sensitive, but 12 13 Q. Yeah, I'm sure. I'm sorry to hear that. I'm just 14 trying to wrap my brain around what the situation is. The - 15 is your son?

16 A. Yes.

17 Q. Okay. And how old is he now? 18 h. He's 9 now.

19 Q. Okay. And his father lives in Alabama? 20 A. Correct.

21 Q. And when in 2009 you sent to be with him and he 22 didn't return, you initiated this action here in Williamson 23 County. Did you get -- his name is Daniel? 24 A. Daniel McKeever.

25 Q. Yeah. Did Daniel respond to the lawsuit? Did you

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Cause No. C1-CV-12-OOB224 Oral Deposition of Mandy Edwards

Page 16

1 Q. At the time, though, that the fire began, you had 2 several children under your supervision?

3 A. Correct. 4 Q. And this is at 693 Pickett Lane? 5 A. Yes. 6 Q. Mi right. 1 A. Yes.

8 Q. And was there any other adult present? 9 A. Yes. Actually, the reason there was more children 10 was because we had hired a construction worker. He was

11 remodeling our house at the time. And his son was similar in 12 age to all the -- our children. He asked if he could bring 13 him. I said, "That would be fine. They can play, you know." 14 So it was Shane Painter. He was the construction worker that

15 was remodeling our house, and also a Jerod Duncan which is 16 Jeremy's half-brother from Katy, Texas. He was there as well. 17 He was visiting, looking for employment up here actually. 18 Q. Okay. Okay. Now, who else was present besides 19 Shane, Jerod and you? It was just the children? 20 A. Children. His son. Gosh. What is his name?

21 Q. Shane's son?

22 A. Shane's son. I'm sorry. I can't remember his name. 23 Q. Okay.

24 A. And then my son, 25 Q. Okay.

' ^, 7

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 17

1 A. And

2 Q. Okay. 3 A. And then Jeremy's three children, 4 and

5 Q. I'IT. sorry. I missed -- it was , and 6 who?

7 A. , . Did you get ? 8 Q. And n. Oh, is it you said? 9 A. .

10 Q. Okay. -- 11 A. There is a and a .

12 Q. And a . That's what I was missing. Okay. 13 All right. So we had five children? 14 A. Correct.

15 Q. Okay. What is your profession? 16 A. As of right now I am a - my title has changed. I

17 guess you can call me a kennel technician. I just got promoted 18 to - I'm kind of doing everyone's job. Office manager. I 19 don't know. I just say kennel technician. 20 Q. What is a kennel technician?

21 A. It's a - it's at a - it's in -- it's called 22 Southern Star Ranch. It's a boarding and kennel facility, 23 canine training center.

24 Q. Okay. And that's where you work now? 25 A. Yes.

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Cause No. Cl-CV-12-008224 Oral Deposition of Handy Edwards

Page 18

1 Q. And what about for the past few years?

2 A. Self-employment. I have just - I have cleaned 3 houses. The main reason I did that -- I started that in 2000

4 was to revolve my life around my children. So I cleaned 5 houses.

6 Q. Okay. 7 A. In the mix in between, the 13 years, I have gone to

8 college. I've, you know, done everything else, but my

9 priority, main source was cleaning houses. 10 Q. And what were you doing in July 2011 for work?

11 A. Actually, at that time I was not employed. I was

12 cleaning Jeremy's father's house every two weeks and that was 13 my only -- my, I guess, job you could say was staying at home. 14 I was the house - not housewife because I'm not his wife. You

15 know, I stayed home and took care of the house and the kids and 16 everything in between. 17 Q. Okay. So when did you -- or how did you meet Jeremy 18 Melchor? 19 A. Smokey Mo's Bar-B-Q - 20 Q. Okay.

21 A. -- where he was working at the time. Well, still 22 is, but --

23 Q. And when did you move in with him? 24 A. It was October 2010. 25 Q. Okay. And that was at 693 Pickett Lane?

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 19

1 A. Yes.

2 Q. Okay. What is your relationship with Jeremy Melchor 3 now?

4 A. We're still boyfriend and girlfriend. 5 Q. All right. So you were pretty much at that point in

6 time a stay-at-home moro or did you do these side jobs, too? 7 A. Pretty much stay-at-home mom. I was only cleaning 8 for his father until I figured out what I was going to do with 9 my career. It was always my goal to get in the veterinarian

10 field. And then in November 2012 - yes, 2012, that's when I 11 found this ad on Craigslist for Southern Star Ranch. 12 Q. Uh-huh.

13 A. And that's my " my new career.

14 Q. Okay. The work you did for Morris Melchor, Jerem^'s 15 father -

16 A. Yes. 17 Q. What did that entail?

18 A. House cleaning. That was a detailed house cleaning »

19 every two weeks. 20 Q. Just one house or -- 21 A. Yeah, just his -- 22 Q. -- several?

23 A. No, just his house. 24 Q. Okay. Can you describe the place at 693 Pickefct 25 Lane? What kind of place is it?

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 34

1 with the drought, et cetera, et cetera. We just assumed it was 2 another brush fire and it jumped through the 'property. You 3 know, and we tried to backtrack where we thought they had their 4 lunch, is what we were told. There was never a lighter found. 5 There was never nothing. So ~- and all we heard was "We seen a

6 fire and it went boom and boom, " and that's all we got out of 7 it. And then --

8 Q. Okay. So do you recollect and telling 9 " Daniel Berger, I would subinit, is the deputy fire marshal's

10 name. Do you recall them telling him that they had used a 11 lighter to start the fire?

12 A. I recall -- he finally - I can't remember. It 13 was in the evening. It was dark. That whole entire day, I 14 mean they ~- everyone -- the fire marshals, the officers were 15 just interro - just pounding on him like, you know, like "You 16 started it. You started it. " He finally just gave in and 17 said, "Okay, I started it. " He said, "The only reason I did

18 because I wanted to have a campfire for our lunch. " I packed 19 them a lunch to go outside, which was a normal thing they did.

20 And he said, "I learned in Boy Scouts how to start a -- you

21 know, a small fire and I thought I could put it out. " And that 22 was it. And then we never -- after that never even seen the

23 fire report.

24 And, again, the lighter was never found. So I 25 don't know if he - is the kind that will take blame for

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 37

1 A. Yeah. That's when hewas just like "I did" -- you

2 know, "I started the fire. " And I'm like "Well, we need to go 3 talk to the fire marshal and discuss this."

4 Q. So you are the one then that when you got alone 5 you were able to get him to confess the truth to you? 6 A. Not necessarily.

7 Q. Well, then why did you - I don't understand. I 8 roean, you're saying ~- 9 A. Because at the time we were all upset and we were

10 talking about the possibilities of what can happen with a fire 11 if they were to start it. We didn't know at the time. Their 12 story was very consistent as far as they just went to have a 13 lunch, et cetera, et cetera. And then he literally was just

14 like "Okay, Mom, " you know. He's like "I started the fire." 15 It totally threw me off. I said, "Well, let's 16 go discuss this with the fire marshal and figure out what's 17 going on. And if you did, " I said, "of course we need to tell 18 the truth and we need to acknowledge that."

19 Q. Uh-huh.

20 A. But just how all of a sudden, it's still a mystery 21 to me because I don't understand -- I don't know if he just got

22 to the point where he's like "I'm tired of hearing this. Let 23 me just say it so I can get it over with. " Maybe make things 24 better is what I'm thinking. He was seven years old at the 25 time. He doesn't have the mental capability of, first of all,

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Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 38

1 having the intention of setting a fire purposefully. I think 2 that he was just -- everyone - I mean, I can't even explain

3 how many people were there just on his butt, you know. 4 Q. How many people were there? 5 A. The fire marshal, all the constables, the sheriff, 6 just everyone in general from the whole entire day. Like I 7 say, that - 8 Q. What about those other two men that you said, Jerod 9 and the other gentleman? 10 A. Shane? 11 Q. The carpenter guy. 12 A. Uh-huh. 13 Q. Was he there, too? 14 A. Yes. Well, they left. I don't recall exactly what 15 time they left. I roean, they stuck around a little while. I 16 don't recall. Well, Jerod was staying actually for a week. 1. 7 Shane - I don't remember exactly what time he left. But after 18 he gathered his emotions and everything calmed down, then he 19 left for the evening.

20 Q. Okay. That was after the fire had been - 21 A. Yeah, after they - 22 Q. -- called in?

23 A. - finally got it out and -

24 Q. Okay. Now, did those two men help you get out of 25 there with all the kids?

Cause No. Cl-CV-12-008224 Oral Deposition of Mandy Edwards

Page 39

1 A. Well, I was cooking - I'm trying to backtrack. I 2 was cooking lunch for the other children. Shane, the painter 3 -- he came running in the house and just said, "There's a 4 fire. You need to get everyone out. " That's all I heard. So 5 I got all the kids out, gathered them in the truck. And then 6 is like "My turtle. " So then we had to go back and gather 7 all the animals and we took off. And, like I say, it happened 8 just so fast.

9 Q. Uh-huh.

10 A. And all I knew was to get the kids out of there. 11 All I seen was black sinoke in the air. I just knew get out.

12 And Shane stayed. And it scared me to death. I kind of waited 13 for him. I was like "You can't stay here. " I didn't know

14 which way - I, of course, didn't know what was going on. 15 Calling Jeremy. He was at work. I said, "Can you - you need 16 to come home. There's a fire."

17 I proceeded I believe to call 911. And after 18 that, like I say, it was very - everything happened so fast 19 that day. My goal was to get out of there, but then I'm 20 thinking in my mind Shane is still there. It's like "He can't, 21 you know, stay there, " so I just - 22 Q. So Shane was the first one to see this fire? 23 A. Froro my knowledge, yes, because he came in and told 24 me. I was cooking lunch, like I said, for the other children. 25 And he just came running in the house. "There is a fire. Get

DONNIE LEE TITEL 3/4/2013

CAUSE NO. C-l-CV-12-008224

DON TITEL fi CAROL TITEL, ) IN THE COUNTY COURT Plaintiffs, )

)

VS. ) AT LAW NO. 2 )

JEREMY DAVID MELCHOR, )

Defendant. ) TRAVIS COUNTY, TEXAS

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

ORAL DEPOSITION OF

DONNIE LEE TI TEL

MARCH 4, 2013

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

ORAL DEPOSITION OF DONNIE LEE TITEL, produced as a witness at the instance of the Defendant, and duly sworn, was taken in the above-styled and numbered cause on the

4th of March, 2013 from 9:20 a. m. to 10:39 a. m., before Amber Kirton, CSR, in and for the State of Texas, reported by machine shorthand, at the law offices of Naman, Howell, Smith & Lee, PLLC, 8310 Capital of Texas Highway, Suite 490, Austin, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions attached hereto.

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U. S. LEGAL SUPPORT - AUSTIN, TEXAS (800) 734-4995

DONNIE LEE TITEL 3/4/2013

1 N D EX 2 3 Appearances 4 DONNIE LEE TI TEL 5 Examination by Mr. Velte 4

6 Signature and Changes 51 7 Reporter's Certificate 53 8 Further Certification 55 9 10 EXHIBIT 11 INDEX

12 13 NO. DESCRIPTION PAGE

14 A MapQuest 105 Ivy, 20 15 B MapQuest 105 Ivy, 20 16 C MapQuesfc 693 Pickett Lane 23 17 D MapQuest 693 Pickett Lane 23 18 E Titel Damages Summary 30

19 20 21 22 23 24 25

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DONNIE LEE TITEL 3/4/2013

1 DONNIE LEE TITEL, 2 having been duly sworn testifies as follows; 3 EXAMINATION 4 BY MR. GOLDSMITH;

5 Q. Mr. Titel, please state your full legal name for 6 the court reporter.

7 A. Donnie Lee Titel. 8 Q. Mr. Titel, my name is Jim Goldsmith and I'ro an 9 attorney that's been retained by Jeremy David Melchor in a 10 lawsuit that you filed against him as a result of an 11 incident on July llth, 2011. Do you understand who I am 12 and who I represent? 13 A. Yes. 14 Q. And you understand that your purpose here today 15 is to offer sworn deposition testimony so that we can find 16 out what you might say in a trial if we were go to a trial 17 of this matter. Does that make sense? 18 A. Yes. 19 Q. One of the things that we need to take care of on 20 the outset is some ground rules on how, we're going to 21 speak to each other. And the reason we do that is because 22 the court reporter is typing down everything that I say 23 and everything that you say. And so if we can get some 24 ground rules on how we speak to each other it will make 25 her job a whole lot easier and we'll have a much clearer

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DONNIE LEE TITEL 3/4/2013

7

1 oath that you would take in a court of law in front of a 2 jury and a judge. Do you understand that? 3 A. Understood.

4 Q. So your obligation here as in court would be to 5 tell the whole truth to the best of your knowledge. Can

6 we agree on that? 7 A. Yes.

8 Q. And I want to be clear also, I'm not trying to 9 hide the ball, but if for some reason you were trying to

10 say X in answer to a question today and then in court 11 later after you've sworn the same oath you were to answer

12 Y, I'd be entitled to show the jury the transcript of 13 today's testimony and say, you know, you testified two 14 different ways under oath. And the reason I do that is to

15 imply that you might be being untruthful. Is that fair? 16 A. That's understood. 17 Q, Understood. May not be fair, but I want to be 18 clear on why we might do that. I don't want to hide the 19 ball for you. All right. Let's start with just a little 20 bit of background information for you. Your date of 21 birth? 22 A. May the 26, 1947. 23 Q. And for identification purposes the last four 24 numbers of your social security number? 25 A. 3465.

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DONNTE LEE TITEL 3/4/2013

39

1 chicken coop - okay. The chicken coop, maybe that was a 2 later deal, but that was a loss and I didn't have to fix

3 the coop in the first month. But water and some things.

4 I actually - I made some purchases right away, which 5 then -- see, and right now the way this list stands you

6 said I've made modifications to, that's true because this

7 is things not covered by the i. nsurance now is the way it 8 finally kind of broke out.

9 Q. So these are things - I want to make clear. 10 This does not include the things that the insurance 11 company paid for? 12 A. Yeah. This is just - that's correct. This is 13 only the things they didn't pay for. But that was all 14 unclear back then. Because your question was about this 15 list. So I'TO trying to remember the way this came to be. 16 But it was handwritten, it was a Big Chief Tablet. It 17 evolved and there was yeses and nos, subtractions, adds 18 and drops. And then this whole subrogation thing came in, 19 which I didn't understand. It was at some point where I 20 said I need some help here and that's when I contacted Mr. 21 Velte and said I'm lost here, I don't know what's going 22 on, I need some help. 23 Q. Let's talk a little bit about the different types 24 of property that were at your Ivy location and what 25 damages they sustained. Let's start with buildings. You

U. S. LEGAL SUPPORT - AUSTIN, TEXAS (800) 734-4995

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N-t

NAMANHOWELL

SMTTH&LEE'1"

AHOKNIYS AT IAW 8310NCt»atElo(TBMiHwy Suit* 00

Auitin. Texa»78731

IS1Z1479.83CO

ftX|5ia«74-iaB1

September27, 2013 Office* in:

. Autlin

ViaE-PUing a FortWorth a Sin Antonio

. Waco

Ms. DanaDeBeauvoir Travis CountyCourthouse www. ftein»nh»w»ll s'vi 1000 Guadalupe, Room 21 1 Austin, Texas 78701

RE: Cause No. C. l-CV-12-008224; Don Titel and Carol Titel vs. Jeremy David Melchor; In Ac County Court at LawNo. 2 ofTravis County, Texas

Finn FUeNo. 34725. 500

DearMs. DeBeauvoir:

Please find enclosed a Motion for Suacwry Judgmcmt filed on behalfof Defendants Jeremy David Melchor, Morris 0. Melchor and Lisa Melchor. A Notice of Hearing is incorporated witfain the Motion, and reflects Ifaat this Motion is set for hearing on Tuesday, October29, 2013at 9tW S.B*.

Pursuant to the Texas Rules ofCivil Procedure, a copy ofthe Motion hasbeen forwanJed to all partiesandcounsel ofrecord onthis date.

Thankyou for your assistancein thismatter.

Verytruly yours,

NAM^ HOWELL,SMITH& LEE,PLLC

JWO/jwg Enclosure

(02569857. DOCX/)

<j\

[tUblilhcd 191?

Ms. DanaDeBeauvoir Travis County Courthouse September27, 2013 Page 2

ec: (w/eaclosure)

Paul C. Velte, FV SEWTVIAFACSIMILETO:(512)476-9504 109E. HopkinsSt Suite 204 SanMareos,Texas78666

MandyEdwards SENTVIACERTmEDMAIL,RETURNRECBIPTREQUESTED 693 Pickett Lane Leaoder, TX 78641

Clients SENTVIA E-MAIL

(025<9tS7.DOCX/)