John Shull v. Westover Crossing (San Antonio) Homeowners' Association, Inc. Spectrum Association Management, LP And Buck (Delvin) Benson

• Court: Court of Appeals of Texas
• Decided: November 4, 2015
• Docket: 04-15-00692-CV
• Status: Published

Opinion

1 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TX 3:30 pm, Nov 04, 2015 1 REPORTER'S RECORD KEITH E. HOTTLE VOLUME 1 OF 1 CLERK OF THE COURT 2 TRIAL COURT CAUSE NO. 2014-CI-15954

4 JOHN SHULL ) IN THE DISTRICT COURT ) 5 Plaintiff(s), ) ) 6 VS. ) BEXAR COUNTY, TEXAS ) 7 WESTOVER CROSSING (SA) ) HOMEOWNERS ASSOCIATION INC., ) 8 SPECTRUM MANAGEMENT, LLP, ) AND ATTORNEY BUCK (DEVIN) ) 9 BENSON ) ) 10 Defendant(s). ) 285TH JUDICIAL DISTRICT

12 ********************************** HEARING OCTOBER 5, 2015 13 **********************************

15 16 On the 5TH day of OCTOBER, 2015 the

17 following proceedings came on to be heard in the 18 above-entitled and numbered cause before the Honorable

19 Karen Pozza, Judge of the 407th District Court of Bexar

20 County, Texas: 21 Proceedings reported by Machine

22 Shorthand.

23 24

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1 A P P E A R A N C E S 2 MR. JOHN SHULL APPEARING PRO SE 3

4 5 MR. BRIAN D. HENSLEY APPEARING FOR WESTOVER CROSSING HOA, INC. 6 SPECTRUM ASSOC. MGMT.

7 8 MR. SCOTT NOEL APPEARING FOR DEVIN "BUCK" BENSON 9 10

12 13

15 16

17 18

20 21

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1 INDEX 2 PAGE

3 CAPTION ----------------------------------------- 1

4 APPEARANCES ------------------------------------- 2 5 INDEX ------------------------------------------- 3

6 PROCEEDINGS ------------------------------------- 4

7 REPORTER'S CERTIFICATE -------------------------- 46 8

9 10

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1 THE COURT: 2014-CI-15954, Shull versus 2 Westover. We have a summary judgment this morning --

3 three summary judgments?

4 MR. NOEL: Good morning, Your Honor. 5 THE COURT: And a motion for continuance,

6 again, I think?

7 MR. SHULL: Yes, Your Honor. I have a 8 motion for discovery continuance.

9 THE COURT: Okay. You can go ahead with 10 that motion first.

11 MR. SHULL: Your Honor, in the last

12 hearing you had reviewed some of the documents and so 13 forth. That was in my first thing for discovery

14 continuance. And I stressed the fact that there was an

15 existing order from Judge Michael Mery that basically 16 said that once the inspection of the records have been

17 done under discovery, then the summary judgment is 18 considered. You ruled, and I asked for 30 days, and I

19 believe you gave me 17 days to today. And I'm not sure

20 in the hearing if there was a condition on the discovery 21 aspect, but the other parties have not provided any

22 additional information since that. And the information

23 that I'm requesting are records that have been required 24 by the Property Code to be retained, and contained in

25 those records are records that are essential for my

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1 ability to defend against the summary judgment. For 2 instance, the account records. The Defendant

3 Homeowner's Association has come up with some records in

4 their exhibit for -- of a filing on 28 August, which was 5 not contained in their database that they had

6 previously -- that they had furnished to me. So what we

7 have is we have contradictory records that have been 8 produced, we have a significant amount of records that

9 haven't been produced yet. None of this delay is caused 10 by me, because my request has been very clear from the

11 very beginning, as to what I needed. Their summary

12 judgment is basically -- one of them has to deal with 13 whether attorney Benson was involved or not. The

14 attorney/client privilege has been invoked. There are

15 records, however, that should still be available to me, 16 and those are financial obligations that show up on the

17 budget line. Those have not been produced. So 18 therefore, basically the records are non-auditable, is

19 the way they were provided to me. Secondly, the

20 Homeowner's Association has put a, what I claim as a 21 fraudulent lien on my property. Well, that requires

22 certain things by law to be accomplished. None of those

23 documents that are required by law have been provided to 24 me. Certified notices of the existence of the lien, for

25 instance, have never been produced. I believe in all

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1 fairness that since this delay has not been incumbent 2 upon anything I've done or not done, that this Court

3 will grant a continuance until the Defendant meets the

4 requirement of the order to give me the documents that 5 I've requested and are provided for by law. That way I

6 can have the ability to properly defend myself against

7 the summary judgments that are now being presented to 8 this Court.

9 I've included in my pleading is an 10 Exhibit 2, which basically says that the Defendant

11 Homeowner's Association admits, and has indicated that

12 they wouldn't admit this in Court, that the records have 13 not been provided to me in total, as requested. Again,

14 I stress these records are mandated by law, so they

15 should have been in existence a long time ago. But for 16 some reason, they are not there. And that's the crux of

17 my case. My case is against all these Defendants, for 18 mismanagement, for unauditable actions, and the

19 fraudulent lien is just one example of that. And so the

20 case before you is the operation and conduct of daily 21 affairs by all the Defendants. Defendant Benson is

22 involved, because he had a contract. It obligated him

23 to do certain things. That contract was limited to just 24 certain duties. Attorney Benson -- Defendant Benson,

25 however, did duties outside the scope of his contract.

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1 Those documents that I'm asking to be produced should 2 illustrate or substantiate that. I'm at a significant

3 disadvantage when I'm not given records that are

4 required by law to be retained; therefore, I ask that 5 this Court extend the period of discovery until the

6 client -- I mean until the Defendant, whose records I'm

7 seeking, certifies to this Court that all the records 8 have been provided. Now, that serves two purposes. If

9 he certifies that, then that means he's got to live with 10 what he's given us -- given me, the Court and so forth,

11 so that in future pleadings he can't come up with

12 another document. This has happened in the past. 13 There are also questions on the documents

14 that he's provided to date, in the sense that they are

15 nonsecurable, they are duplicable, with different dates. 16 There are records that conflict with each other and so

17 forth. That's why these records are imperative for both 18 this Court and myself to properly proceed. And

19 therefore, I request that the Court grant a continuance

20 to allow me to receive these records, so that I can 21 incorporate them in my defense, which is the purpose of

22 discovery.

23 THE COURT: Thank you. 24 MR. SHULL: Thank you.

25 MR. NOEL: Good morning, Your Honor.

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1 THE COURT: Good morning. 2 MR. NOEL: Scott Noel here with

3 Plunkett & Griesenbeck, on behalf of Defendant attorney

4 Buck Benson. If the Court will recall, although I 5 imagine she's heard a few things since then, on

6 September 17, Mr. Shull, we were all here in your

7 courtroom that morning. Mr. Shull presented another 8 motion to -- a previous motion to extend discovery on

9 the morning we filed our previous motion for summary 10 judgment settings. Mr. Shull has done that again here

11 this morning. So he filed this motion to extend

12 discovery period, knowing full well that this Court back 13 on September 17 said I'm resetting this till October 5,

14 with no further extensions granted. So now Mr. Shull

15 stands here before you in defiance of your order, and 16 files another motion for continuance.

17 THE COURT: Well, just mostly understood 18 if there are in fact outstanding discovery requests or

19 not?

20 MR. NOEL: This is the first we heard of 21 it, Your Honor, with this.

22 THE COURT: Well, there's been discovery

23 pending for some time. I just want to -- assurance that 24 everything has been provided. That's the only question.

25 MR. NOEL: And on behalf of Mr. Benson,

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1 we can make that representation to the Court. 2 MR. NOEL: Your Honor, Brian Hensley on

3 behalf of Westover Crossing HOA, as well as Spectrum.

4 This discovery dispute dates back to the spring, and 5 there was a hearing based on a motion to compel filed by

6 Mr. Shull before Judge Mery, in May of this year. Prior

7 to that hearing, myself and Mr. Shull reached an 8 agreement, as it related to discovery requests he had,

9 to my client. That agreement, Your Honor, was that the 10 HOA would make available to Mr. Shull the books and

11 records of the Homeowner's Association, excluding

12 attorney/client privilege information and accounting 13 information of other members of the association. That's

14 exactly what we have done. Mr. Shull has subsequently

15 come back and complained that he believes things are 16 missing. We've asked him to identify specifically what

17 he believes is missing. As far as I know, it is not 18 this motion either. He is not put pen to paper on that.

19 But what I can represent this Court is, is that we

20 produced all the books and records, saving those two 21 exceptions, we've been able to identify on behalf of the

22 association. And those are made available to Mr. Shull

23 in August. There was a supplemental production made in 24 September 14th, I believe it was. We've had, since the

25 last hearing when the Court reset us for today, my

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1 associate and I had another very lengthy conversation 2 with Mr. Shull discussing discovery matters, among one,

3 and again we represented to Mr. Shull that we do not

4 have any other documents to produce. We are not aware 5 of any other production to be made available. That's

6 where we stand, Your Honor.

7 THE COURT: Thank you. 8 MR. NOEL: May I add one other thing,

9 Your Honor? Is that his motion to extend does not 10 comply with the continuance requirements of 251 and 252.

11 One, it's not verified; two, it is deficient, what it

12 seeks and how that might be impactful today. And he 13 also set his motion for summary judgment today, which

14 would he have filed his motion for partial summary

15 judgment, there is a statement with affirmative support 16 with his signature on it, that says he didn't need any

17 discovery to even prove his case for fraudulent lien. 18 So here we are again, Your Honor, we're rehashing

19 something, he is trying to look behind Judge Mery's

20 order, Judge Mery entered an order September 16 denying 21 his motion to compel. So now he is trying to go behind

22 Judge Mery's ruling just a few weeks ago, your ruling

23 from the date following the 17th, and stand before this 24 Court saying, he doesn't have -- he doesn't have the

25 records. Well, he is specific, and therefore, he is

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1 wasting a lot of time. 2 MR. SHULL: Your Honor?

3 THE COURT: Anything else on the

4 continuance? 5 MR. SHULL: Yes, Your Honor. On that

6 hearing he is referring to, Judge Mery did not even

7 consider the order. He actually told me to do it 8 otherwise, because he said procedurally, I have not met

9 the requirement to confer with the two other Defendants, 10 so therefore, he wouldn't consider the motion to compel.

11 And that's why it was denied. I have the Court hearings

12 here, if you would like the transcript, it shows that. 13 The other thing is the Defendant Homeowner's Association

14 has said that I have not identified records. He is the

15 one that proposed to the Court that they would give me 16 all the records, per the Property Code, with the

17 exception of the attorney/client exemption. They have 18 not done this. I have attached an e-mail which

19 specifies what those records are, and that's part of

20 what they call the Records Retention Policy of the Code, 21 which they have to comply with anyway. So if he is

22 basically admitting to the Court that if those records

23 are not available, then basically they violated the 24 Property Code, which is the crux of this case. This

25 case is about mismanagment. What is happening is they

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1 are putting the responsibility on me, the Plaintiff, to 2 make sure that they've done what they are supposed to

3 do. All I'm asking that the discovery go through. He

4 did also decline to make a statement to the effect that 5 he just gave the Court, that you know, that the records

6 were complete. He told me that basically he would come

7 to the Court and tell them that the discovery process 8 was still going on, that they were still looking for

9 things. And so acting on that, I went ahead and I put 10 this continuance in. As far as the Plaintiff's and the

11 other Defendant's note on my summary judgment pleading,

12 that was a procedural thing that I put it on, but this 13 statement that I didn't have enough and didn't do this

14 and didn't do that, that's something that may have

15 happened almost a year ago. I filed that petition, I 16 believe, nine months ago, and basically I have not done

17 anything with that pleading for summary -- partial 18 summary judgment, and I do emphasize the word partial,

19 Your Honor, because partial means it is dealing with

20 only part of the lawsuit before you. The summary 21 judgments that are being presented to you are allegedly

22 against the entire lawsuit, and limit themselves to the

23 fraudulent lien. Bottom line, Your Honor, I need that 24 discovery, I believe I'm provided for that by law, and

25 regardless of what happened before, we have still

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1 outstanding documents that are mandated by law, which 2 will provide me documents to defend myself properly

3 against the summary judgments that they now seek.

4 THE COURT: Okay. The motion for 5 continuance is denied. So we have three summary

6 judgments, or two pending?

7 MR. NOEL: We have three, Your Honor. 8 We have the Plaintiff's partial motion for summary

9 judgment to support his alleged fraudulent lien. We 10 have, on behalf of Mr. Benson, a no evidence and

11 traditional summary judgment on all of the cause of

12 actions asserted to Mr. Benson. 13 MR. HENSLEY: And on behalf of Westover

14 Crossing HOA, as well as Spectrum Association

15 Management, we have both a traditional and no evidence 16 summary judgment, addressing all of Mr. Shull's claims.

17 THE COURT: Okay. So in your arguments 18 it is most useful to me if you just point out in

19 particular what case law you think I should study or

20 what parts of your motion are, you know, salient, and I 21 will read through all of it and study the case law and

22 give you a ruling probably no later than tomorrow, for

23 sure the absolute latest I would give it to you is 24 Monday of next week. So also, if you have draft orders

25 to leave with the Court, that's helpful, as well. So if

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1 you just briefly let -- point me to what you want me to 2 look at, then I will be happy to take it under

3 advisement. So let's see, who wants to go first?

4 MR. NOEL: I will be happy to start, Your 5 Honor.

6 THE COURT: Okay. Yes, sir?

7 MR. NOEL: So on behalf of Mr. Benson, -- 8 THE REPORTER: Sir, could you move the

9 microphone closer to you? 10 MR. NOEL: On behalf of Mr. Benson, Your

11 Honor, this is a traditional and no evidence motion for

12 summary judgment. We also have asserted objections and 13 we have proposed orders, and so the Court can go through

14 and review the objections, --

15 THE COURT: Okay. 16 MR. NOEL: -- the evidence that's

17 attached, in response to Mr. Shull. 18 THE COURT: Do you have draft orders for

19 all of that that you are going to leave with the Court?

20 MR. NOEL: Yes, Your Honor, I do. 21 THE COURT: Thank you.

22 MR. NOEL: So the crux of the case

23 against Mr. Benson filed by Mr. Shull, is that somehow 24 Mr. Benson participated in drafting a fraudulent lien

25 that Mr. Shull claims was filed against his property in

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1 2014, within the -- He filed his second amended petition 2 just within the last -- within the last week on

3 September 28th, claiming that there is a 2009 lien,

4 also, Your Honor, that was apparently fraudulently 5 prepared by Mr. Benson. But it was subsequently

6 released in 2010, and satisfied. And so Your Honor, our

7 motion for summary judgment, our first amended motion 8 for summary judgment applies to both of those liens. So

9 what is the most important part of this, Your Honor, 10 there is no evidence before this Court that Mr. Benson

11 at all participated in drafting, preparing or filing the

12 summary judgment. And in fact, Exhibit C to our motion 13 for summary judgment is the invoice from a firm Holt and

14 Young, out of Houston that actually prepared the --

15 THE COURT: Okay. And I can review your 16 motions and pleadings online, but it is actually quite

17 difficult. We don't have really a great system. So if 18 you happen to have extra copies to leave with the Court,

19 that would be very helpful.

20 MR. NOEL: I do, Your Honor. May I 21 approach?

22 THE COURT: Yes. Thank you, thank you.

23 MR. NOEL: So Your Honor, tab one is our 24 motion for summary judgment, and towards the end of it

25 -- and I'm happy to flip through it -- I got an extra

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1 slip copy of the actual invoice itself, but Holt and 2 Young, a firm out of Houston, actually prepared -- May I

3 approach, Your Honor?

4 THE COURT: Yes, sir. Thank you. 5 MR. NOEL: And here is an extra copy for

6 Mr. Shull, as well.

7 THE COURT: Thank you. 8 MR. NOEL: The affidavit of Holt and --

9 The invoice from Holt and Young clearly indicates that 10 it prepared the lien on behalf of Westover. And then it

11 proceeded to cause to have that filed. The liability of

12 Mr. Shull seeks to impose upon Mr. Benson, is based on 13 five different causes of action. One is fraudulent

14 lien; two, breach of fiduciary duty; three, constructive

15 fraud; four, common law fraud, and five, civil 16 conspiracy to file a fraudulent lien. As they

17 indicated, Your Honor, there is no evidence to indicate 18 to support Mr. Shull's claim that Mr. Benson at all

19 prepared that lien. And in fact, that invoice has been

20 in Mr. Shull's possession for quite sometime. And that 21 dovetails into our motion for sanctions that I will get

22 into in just a moment.

23 The causes of action against Mr. Benson 24 are wholly without merit, baseless. Mr. Shull knew at

25 the time that he filed this suit, Mr. Benson didn't

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1 participate in the drafting of the lien. He had 2 discussions with Mr. Benson's partner, Elliott

3 Cappuccio, in which Mr. Benson -- excuse me, sorry, Mr.

4 Shull, acknowledged that he was willing to nonsuit this 5 case, provided Mr. Benson sign an order confessing that

6 the lien was fraudulent. He used this litigation for

7 improper purpose. So then Mr. Benson was forced to 8 retain our law offices to defend him in this case. And

9 there's been voluminous activity, and we are coupled 10 with our motion for summary judgment and motion for

11 sanctions. We provided the Court a supplemental

12 affidavit of those fees to date, total well over $55,000 13 in fees and expenses. And normally, Your Honor, these

14 motions for sanctions wouldn't be warranted; however,

15 this case is fairly unique. The -- Mr. Shull knew back, 16 right after he filed this suit, that he didn't have a

17 claim against Mr. Benson. And but for Mr. Benson not 18 agreeing to a statement acknowledging that the lien was

19 fraudulent, Mr. Shull was agreeing to nonsuit Mr. Benson

20 well before he even retained our office. So he knew 21 back then he is maintaining this suit for improper

22 purpose. Again this summer, we sent an offer over to

23 Mr. Shull, asking him to dismiss the suit, and these are 24 attached to our copies of our motions for sanctions,

25 indicating our willingness to -- if he would drop the

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1 suit, that that would be a full release of all the 2 parties. Again he refused. He has sent e-mails to us

3 saying treat me as an equal, treat me as an equal, I

4 earned it. But Your Honor, it is now we are here before 5 the Court, and it is time for Mr. Shull to be held

6 accountable for his actions.

7 The Texas Supreme Court earlier this 8 summer issued an opinion Canty Hanger versus Bird

9 (phonetic). I've got an extra copy for the Court, if 10 you would like --

11 THE COURT: Yes, sir. Thank you.

12 MR. NOEL: And it's cited. And this case 13 is important, Your Honor, from a couple of regards,

14 because it speaks to an attorney's duty to a nonparty.

15 Mr. Shull alleged that there is some sort of duty or 16 breach of fiduciary duty between Mr. Benson and himself,

17 and it is simply not true. There is no duty between an 18 attorney and a nonparty, whether that's in a

19 transactional matter or litigation matter. And so this

20 did not rise to a litigation matter until the adversary 21 proceeding was filed, but it was adversarial during the

22 course of the dealings between Mr. Benson, who is

23 representing Westover HOA, against Mr. Shull. And as 24 the Court clearly points out, there is no duty owed and

25 if Mr. Shull wanted to go seek representation, he could

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1 do so. And, in fact, he did, Your Honor, but for some 2 reason he either fired his counsel or his counsel fired

3 him. We don't know specific, but he is here today pro

4 se, Your Honor. So and just because Mr. Shull wants to 5 try and characterize Mr. Benson's actions as being

6 fraudulent in some sort of regard, doesn't take it

7 outside the attorney's role. Mr. Benson's skill, 8 expertise and professionalism is what he used in

9 representing the HOA. And in this case, Your Honor, the 10 very act Mr. Shull complains about, Mr. Benson didn't

11 even do. It was Holt and Young that prepared the lien.

12 So it is our position, Your Honor, that this entire case 13 is baseless and without merit. He's used this for

14 improper purpose to try to get an advantage over the

15 HOA, and so we would ask, Your Honor, one, that the 16 Court grant our motion for no evidence summary judgment,

17 and traditional summary judgment, and two, issue 18 sanctions in the amount of $55,000 against Mr. Shull,

19 because of his frivolous pursuit of an action against

20 Mr. Benson. 21 THE COURT: Yes, sir, Mr. Shull?

22 MR. SHULL: Your Honor, as we know, the

23 standard for review of the summary judgment is the 24 nonmovant's evidence are true, indulges every reasonable

25 inference in favor of the nonmovant, and resolves all

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1 doubts in favor of the nonmilitant. That's Providence 2 Life and First Union cases. I have that quoted on page

3 four of my responsive pleading. Basically what has

4 happened, Your Honor, is I sued both attorney Benson and 5 the Homeowner's Association for mismanagement and

6 problems with accounts and everything else, plus

7 fraudulent lien. Now there exists, and this is already 8 in proof in the Court record, a contract between the

9 firm that attorney Benson works for, and the Homeowner's 10 Association, it is the exclusive and sole contract that

11 has been provided under discovery to date, that

12 relies -- that covers the period in which these two 13 liens were issued against my property. It says in that

14 contract that basically for a fee of $250, Mr.

15 Benson's -- attorney Benson's firm would execute liens 16 in favor of the homeowner's association. They had the

17 authority and this was confirmed in the 11 May 18 transcript of the hearing for discovery before Judge

19 Mery, that he was the sole guy, attorney Benson was the

20 person, that handled liens. He was asked under 21 discovery if he knew about liens, he said no. But then

22 he turned right around and said that Mr. Shull, i.e.,

23 was not treated properly in discovery. All this I have 24 in my pleading, responsive pleading. His contract

25 limits attorney Benson to lien actions. Attorney

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1 Benson got involved in a lot -- several other 2 significant issues, one of which is on records

3 accessibility. Records were requested for liens as far

4 back as a year ago, and on four occasions, both the HOA 5 and I believe twice by attorney Benson, denied the

6 existence of any type of liens against my property.

7 This is verified here, two enclosures that I have that 8 I've inserted into the Court, before showing the

9 discovery responses that were given prior to the 10 initiation of this suit. This suit was sued because of

11 the fact that things were happening and they weren't

12 doing anything about. So therefore, records were one of 13 the things outside his contractual scope. The other

14 thing that was outside his contractual scope was that he

15 apparently, I was told now, and they basically 16 challenged my affidavit, but basically he attended

17 annual meetings, and as a result he was also -- certain 18 problems were brought to his attention. One was

19 stalking charges by the Board President, against me,

20 both in a public hearing and a private hearing. He 21 actually had telephonic conversations during that

22 meeting, discussing this. So in other words, he got

23 involved in actions way beyond the scope of his 24 attorney/client relationship, per a contract; therefore,

25 he has no privilege. He also, therefore, can't claim

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1 that he was representing the HOA because he didn't have 2 a mandate to do so. As we know, a contract is a

3 limitation. So that's in reference to his contract.

4 Now, getting down to the lien portion, we know that he 5 had the responsibility and the authority per contract.

6 We know he had the opportunity because he was there and

7 he was the guy. We know that, and, in fact, in the 8 court transcript, the Court asks, the sole contract that

9 governs the relationship between the parties, attorney 10 Griesenbeck answered, that's my understanding, he, being

11 attorney Benson. The other defendant's response in

12 discovery was the fact that Pullen -- Cappuccio, Pullen 13 and Benson agreed to provide legal services in condition

14 -- connection with the general state court collection

15 and litigation matters involving property owner 16 assessments and liens against real property, in and

17 around San Antonio, Texas. There is nothing else. 18 That's it. That's what he was limited to do. The

19 records will show that he dealt with record production

20 in violation of the covenants of the Homeowner's 21 Association, that it was in violation of the Property

22 Code. He then went on to say, Mr. Benson in the record

23 under an affidavit, that I have never had any meeting or 24 discussion with the plaintiff outside my duties as legal

25 representative for Westover. Again, the legal

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1 representation is limited to his contract. On the 2 fraudulent lien, like I said, he had both the

3 responsibility and the accountability. He also had the

4 motive, and he was also -- they mandated by inference, 5 to be in charge of knowing what was going on in all lien

6 processes. These are liens that were put in 2009, that

7 they never acknowledged existed until I brought it to 8 their attention in May of last year. The lien for the

9 May 2013 lien, was put in right during the middle of 10 negotiations between attorney Benson and my attorney.

11 There are letters on file that show that there is

12 correspondence going on, which is definitely a bad faith 13 act. I mean, the obligation for which the lien was

14 originated, not only was illegal on its face, because it

15 violated the Property Code, but attorney Benson allowed 16 and apparently had the approval, final approval

17 authority, to put all liens against property to have the 18 lien placed while he was talking to my attorney, that

19 debt for which that -- excuse me, that lien originated,

20 was later indicated -- 21 THE COURT: Can you get Mr. Shull some

22 water, please?

23 MR. SHULL: There was no debt -- there 24 was no obligation for which the lien could have been

25 issued. It was resolved, it was zeroed out. That's --

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1 And he was responsible for that. Then on top of that he 2 was responsible for the records of this. And there is

3 correspondence and e-mail from the Homeowner's

4 Association, saying that Mr. Benson was the one that we 5 go to for records management.

6 So now he comes to this court and he says

7 wait a minute, I got proof that I didn't do anything. 8 His only proof is his affidavit, and you and I both know

9 that affidavits are self serving and are questionable, 10 so that really doesn't mean too much. So now he comes

11 up with an invoice, which was explained in court, has

12 nothing to do with the lien itself. All it says is that 13 somebody prepared the lien. Now, interestingly enough,

14 you will notice on that document, Your Honor, that it is

15 for $60 for nine liens. That's less than $7.00 a piece. 16 According to his own contract, they charge 250. This is

17 why that discovery was so essential that I needed to 18 attain those financial records. Anyway, this is from a

19 lawfirm in Houston, as he said, has no relationship to

20 anybody here, does not specifically state who did what. 21 They don't even know who Jennifer Nut (phonetic) was,

22 who was the clerk -- I mean, the person that went down

23 and docketed in the court. So what you have here is 24 nobody knows what happened, but nobody was responsible.

25 Now, I'm sure this lien didn't create itself, and I'm

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1 sure that if attorney Benson did not actually sign the 2 lien or actually present it in court, which is not what

3 I'm saying, telling this Court, I'm telling this Court

4 that he had a sole responsibility for all liens, whether 5 he did it or somebody else did it, and he was

6 accountable. I mean, if you are the driver of the car,

7 you are responsible for the passenger and everybody 8 else. If you crash, just because maybe your passenger

9 caused the accident, the driver doesn't get off. The 10 person that is designated by contract is responsible,

11 and he had the authority to approve and disapprove. On

12 top of this, the records that showed that this happened 13 are mysteriously missing. Now, there are records for

14 instance on the minutes of the HOA Board, which are

15 supposed to indicate the violations that are being 16 considered for lien processing. Where are they? In

17 other words, these are documents that were supposed to 18 have been produced by discovery, and are mandated not

19 just because Mr. Shull is making it up, they are

20 mandated so that they can audit what they did and why 21 they did it. So I guess, Your Honor, it boils down to

22 the fact that attorney Benson comes here and says, well,

23 I don't have anything to do with this, because I say so. 24 And here is an invoice that says, yep. Well, Your

25 Honor, the rules for summary judgments say that the

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1 nonmovant should be given deference. I'm the only one 2 that's got evidence in front of this Court that's

3 directly related to the charge that's being made. He

4 doesn't have anything directly related. I mean, I come 5 up with a telephone directory. An interesting thing

6 about Holt and Young is they also have a website which

7 basically talks about how you are supposed to process 8 fraudulent liens, and it dictates some of the things

9 that they haven't done. I'm sorry, Your Honor, I don't 10 have a copy to present to the Court on that one, though.

11 He also was -- Well, now going -- that's on the summary

12 judgment thing. I'm the only one that has evidence, 13 before the Court. Secondly, on the sanctions, the

14 Defendant Benson has implied that he's had to do an

15 awful lot of work here and he's offered me a nonsuit 16 thing. I believe the Court record is extremely clear.

17 In March of this year, we had what we call a declaratory 18 judgment session, where I asked the Court to basically

19 rule as fact, that their attorney Cappuccio had misled

20 me and told me that the Rules of Procedure of nonsuit 21 could not be included in a motion to the Court. And I

22 then presented a page extract of O'Connor and sent it to

23 him, and said that that's wrong, that's false. What I 24 was asking him to do is basically say that if I

25 nonsuited this attorney, that therefore, I just wanted

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1 him to say that whatever he did was on direction of the 2 Homeowner's Association, whether it was the lien or

3 others, but in this particular case I may have used the

4 word lien, fraudulent lien, to which he said no, he 5 can't do that. And procedurally, and the question was

6 on procedures, so therefore, I went to the Court and

7 asked Judge Saldana to please just rule that basically 8 this attorney did this.

9 Now, at the same time in that declaratory 10 judgment, there were two original petition responses

11 that were on record, so there were two attorneys

12 representing attorney Benson, simultaneously. So I 13 asked the Court to make a declaration of which one it

14 is. Well, she ruled against me on the thing, but

15 ultimately that's what happened, because the client, the 16 defendant, resolved that. That's the reason for that

17 hearing. The next hearing that we had, significant 18 hearing, was a motion to compel, because I had sent out

19 discovery to them and they had not responded. The Court

20 mandated time for response had passed, and we were later 21 to be called at the 11 May hearing. The reason why

22 that happened, Your Honor, is because they had failed to

23 post it on the calendar board. So they gave me some 24 responses. Those responses where basically saying that

25 we can't give you anything, we deny everything. And so

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1 the Court ordered that they redo the responses, 2 especially on the admissions and production; so they

3 did. And contained in my pleading is the results of

4 that, in which attorney Benson at the same time says he 5 has no knowledge of anything, basically states that the

6 Plaintiff has been mistreated, that there had been

7 misconduct on the board, and that the governing 8 documents were not made available. Now, this is all

9 stated in the summary judgment response that I have 10 docketed, the second one that you have. So I guess the

11 bottom line, Your Honor, is as far as the summary

12 judgment -- I mean, as far as the sanctions are 13 concerned, all the delays, the costs of the hearings on

14 the discovery and so forth, have been brought about by

15 the Defendant's blatant ignoring Court rules and 16 procedures and protocol, in good faith. I'm not sitting

17 here and prolonging this thing, and I also would ask the 18 Defendant earlier in the game to please provide me with

19 some cost information, and that I would do so -- I would

20 also do the same, because I would like to know what my 21 exposure was as this case proceeded, not because I was

22 setting up the predicate that I was going to lose. But

23 I was just curious what my liabilities were. I even 24 said that there was -- I believe there is a Federal law

25 that I believe has been violated. They did not respond.

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1 In fact, the first time I knew about the cost of this 2 litigation, was on the 17th of September, when in fact

3 they revealed to me that their insurance policy had been

4 paid out, that attorney Benson had to do this and had to 5 do that and so forth. My intention is not to

6 bankrupt -- cost him a lot of money or anything else.

7 My intention is to get attention given to the conduct 8 that this case represents, what they did on the lien,

9 what they did on the meetings, what they did on the 10 records, what they did in the whole thing. Now, this is

11 all pleaded out in my petition, with details and so

12 forth. So he comes here and that's when I basically 13 said, yeah, I will agree to a nonsuit, I don't want this

14 to continue, and they said well, we spent too much money

15 now. So that was -- I said, well, I had to make a 16 conscious decision at that point I think it was $45,000

17 on the 17th of September. And they make me a settlement 18 offer of 35,000, if I pay, 11,000, I believe it was

19 every quarter, three quarters. And I basically said

20 well, look, if I'm going to have to pay that much, I 21 might as well go ahead and fight, because your cost of

22 this Court has been brought on more not by my lawsuit,

23 but your actions to date, in frustrating the discovery. 24 And when we first started this -- this case, on that

25 declaratory judgment hearing that I talked about in

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1 March, they brought five attorneys, at least this is 2 how they identified themselves to the court hearing.

3 And they told me, Mr. Shull, you are going to pay for

4 all of this, so you better nonsuit. And I'm saying, 5 wait a minute, we haven't even had a hearing yet and I'm

6 not exactly sure why you have all these people here, but

7 no, I don't agree. They are correct in the record, they 8 have offered me nonsuit three times. First time in the

9 declaratory hearing, second time was -- I believe it was 10 the 3rd of September, when they sent me something asking

11 me to basically nonsuit. And then when I started

12 learning the value of this, as I didn't know what the 13 costs were involved until the 17th of September, when I

14 knew the enormity of the situation, that's when I

15 agreed. Your Honor, when they asked me on the 3rd of 16 September about the nonsuit, we already had the motions

17 docketed for the 17th, the summary judgments and so 18 forth. So I just figured, well, nonsuit, they were

19 already on the docket, so we'll go take care of those

20 and then I will settle, if there is a settlement 21 available. So that's as far as the sanctions are

22 concerned. Again, a lot of their costs are related not

23 to the attorney's contract, with the Homeowner's 24 Association. They are related to everything he did

25 outside said of that scope, and everything he did

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1 outside of that scope. And everything he did outside of 2 that scope, he was exposed. He had no attorney/client

3 privilege. And since this involves a fraudulent lien,

4 even more so that's what we call the crime fraud 5 exemption, again in my pleadings I detail that, but that

6 crime fraud exemption breaks that attorney/client

7 privilege vale. The law defines the process of this 8 lien as being fraudulent, because certain things weren't

9 done. They weren't done. So therefore, that's fraud. 10 Therefore, the vale is broken by the crime fraud

11 exemption. And it should have been, but apparently I

12 have not been able to properly present that, I guess, to 13 the Court to get them to agree. So therefore all the

14 attorney records, billings and so forth, have been

15 denied me. So I guess in the bottom of my argument, 16 Your Honor, they come here with a summary judgment with

17 no evidence. I'm the only one that's got evidence 18 before the Court, other than their affidavit, and that

19 receipt, which doesn't even apply. And, in fact, I

20 think they should be sanctioned for frivolous wasting of 21 time on stuff like this. So therefore, I'm the only

22 movant before, that basically has the justification for

23 the summary judgment. I've got a contract that says he 24 is supposed to do it, I've got the opportunity to do it,

25 I've got the authority to do it, I've got the fact that

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1 he took action to hide the records if it wasn't done. 2 So therefore, the summary judgment should be denied.

3 And the sanctions, as I explained, are all more result

4 of their inaction or misaction, or conduct aspects of 5 both the discovery process and the initial orientation

6 of the lawsuit, and therefore, should be denied, and I

7 should be granted sanctions for the -- and the Court, 8 for the time that was wasted and eaten up in doing this

9 kind type of frivolous gamesmanship. 10 THE COURT: Thank you. Mr Hensley, your

11 brief comments about what I should study with regard to

12 your motion? 13 MR. HENSLEY: Yes, Your Honor. May I

14 approach?

15 THE COURT: Yes, thank you. 16 MR. HENSLEY: As the Court directed, it

17 is just a courtesy copy of our motion, along with two 18 proposed orders.

19 THE COURT: Great, thank you.

20 MR. SHULL: I'm sorry, Your Honor, 21 weren't we considering the summary judgment against the

22 attorney Benson?

23 THE COURT: Yeah. And I'm finished with 24 that, and now I'm moving onto their summary -- Yeah.

25 MR. SHULL: Oh, I'm sorry. Excuse me.

TRACY RAY PLUMMER - OFFICIAL COURT REPORTER 407TH DISTRICT COURT (210) 335-2895 33

1 MR. HENSLEY: Your Honor, we too, and 2 when I say "we," the Homeowner's Association, as well as

3 Spectrum Association Management, have also filed a

4 motion for summary judgment, both traditional and no 5 evidence. As it relates to the claims against my

6 clients, there are seven causes of action filed by Mr.

7 Shull. There is a violation of Section 12.002 of the 8 Civil Practice and Remedies Code, fraudulent lien

9 statute. There is a negligence claim, there is a common 10 law fraud claim, and a civil conspiracy claim. Each of

11 those causes of action, Your Honor, requires a finding

12 that a notice of assessment lien filed against Mr. 13 Shull's rental property was fraudulent. I believe our

14 motion, and I'm not going to get into the details of it,

15 being cognizant of the Court's time, it's pretty well 16 spelled out in our motion, the summary judgment evidence

17 establishes that not only has Mr. Shull not have 18 evidence establishing that as a fraudulent lien that was

19 filed, but in fact it was a valid lien that was filed

20 against his property. And what the Court will see is 21 that Mr. Shull for whatever reason, failed to pay a

22 series of assessment liens against his rental property,

23 and overtime that failure to pay accrued interest and 24 late fees, all allowed by the Declaration of Restrictive

25 Covenants, governing this association and Mr. Shull's

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1 property. Mr. Shull's attorney, former attorney I 2 should say, in correspondence with defendant, Mr.

3 Benson, acknowledged that his client failed to pay

4 assessments, past due assessments. The Court will see 5 multiple notices of past due amounts, attached as

6 summary judgment evidence. The Court -- I would ask the

7 Court to take notice on those account statements that 8 were sent to Mr. Shull. He's complained that we didn't

9 provide it to the right address. The address on those 10 account statements was the identical one to the plea, to

11 the address he has listed on his pleadings in this

12 lawsuit. Mr. Shull, himself, in communications to Mr. 13 Benson, acknowledged his failure to pay past due

14 assessments. His argument -- I'm interpreting his

15 argument to be that he disputed some amounts owed and 16 that was his basis for not paying the assessments that

17 he did say was owed. We cited the provisions in the 18 BCCR, Your Honor, which state very clearly that even if

19 the amounts owed are in dispute, the member has an

20 obligation to pay those amounts. There was absolutely 21 nothing wrong with the filing of the notice of

22 assessment made against Mr. Shull's property.

23 Furthermore, more recently Mr. Shull has complained 24 about a 2009 notice of assessment against his property.

25 We assert that the statute of limitations have long

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1 since passed on any cause of action related to that. 2 That 2009 lien, I believe, the one that he complained

3 was in August of 2009 and Mr. Shull didn't assert a

4 cause of action till this year -- I'm sorry, okay -- 5 that's right, the lien was actually filed in August of

6 2009, there was a satisfaction lien filed February 1st

7 2010. Mr. Shull didn't file his cause of action related 8 to that until, at the earliest, August of this year, but

9 more than likely, September of this year. I will 10 correct myself the -- it was the 3rd of August 2009,

11 when that lien was filed. Your Honor, the other three

12 causes of action Mr. Shull has against my clients are 13 breach of fiduciary duty, a breach of good faith of fair

14 dealing, which is essentially the same thing as above,

15 as well as a constructive fraud claim. We submit to the 16 Court that each of those claims require a finding that

17 the Defendants, my clients, breached a fiduciary duty to 18 Mr. Shull. Again, as outlined, more ably in our written

19 motion, is our assertion that the Homeowner's

20 Association, as well as the property management company, 21 owed Mr. Shull no fiduciary duties; therefore, there

22 were no fiduciary duties that should have been breached.

23 There is no formal relationship, and there is no special 24 relationship created out of the contract, the DCCRs that

25 created a fiduciary duty. We cited case law, Your

TRACY RAY PLUMMER - OFFICIAL COURT REPORTER 407TH DISTRICT COURT (210) 335-2895 36

1 Honor, very similar instance on a case arising out of 2 Third Court of Appeals in Austin, where it looked at

3 whether fiduciary duty arose between ACC members,

4 Architectural Control Committee members and members of 5 an HOA, and the office of Court of Appeals found that

6 there was no fiduciary relationship. We submit that the

7 same exists in a context of a relationship between my 8 clients and Mr. Shull. Absent a fiduciary duty, those

9 three causes of action, the breach of fiduciary duty, 10 breach of good faith and fair dealing, and constructive

11 fraud claims, all fail as a matter of law, Your Honor.

12 With that we will rest and allow the Court to make its 13 decision, based on the papers submitted.

14 THE COURT: Thank you. Yes, sir?

15 MR. SHULL: I think that the Defendant is 16 a little bit confused, so what I would like to do is

17 maybe provide some clarification. The fraudulent lien 18 thing for which the summary judgment is targeted are two

19 liens, both of which were discovered after the lawsuit

20 was initiated. Now, we well know it is an established 21 principal of law, that the statute of limitations begins

22 at the time of discovery, not at the time of occurrence.

23 And I, in my pleading to Defendant Benson, I emphasized 24 that I did not respond to this one on this -- this

25 particular summary judgment, because I didn't realize he

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1 had raised it. But the discovery for both those liens 2 was after the lawsuit was initiated. They are well

3 aware that both, when these liens were discovered,

4 because when I discovered them, I brought it to their 5 attention. And there is e-mail traffic, there is a

6 attempt to get a judicial notice to getting

7 incorporating my basic petition earlier this year, to 8 which they objected, but I had asked them before I did,

9 to see if that would be a proper way of doing it. So 10 that was -- we have now two liens involved in this

11 fraudulent lien. We have 9 August, 2009, and we have 3

12 May, 2013. Both of which the Defendants -- all the 13 Defendants were present. We had the Westover Crossing

14 and we had Spectrum Management. Both of these liens

15 were denied that they existed on January 2014, as a 16 result of a information request. In March 2014, they

17 were denied again, as existing. And so now we find 18 these liens and so we then go to the Property Code and

19 find out what are these guys supposed to do. And if I

20 may, I spelled those out in my briefing, but -- I mean, 21 in my response, Your Honor, and I'd like to then go

22 through those, if I may. And you have to remember the

23 concept of clean hands, comes into play here. In other 24 words, if they are involved in this and they haven't

25 done things they were supposed to do, then they can't

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1 use their noncompliance as an excuse for not doing 2 something. What we have here is I attempted upon --

3 there are several things that happened with the lien.

4 They have to have first the creation of an obligation. 5 Now the Property Code says that that obligation has to

6 be an assessment for dues owed to the Homeowner's

7 Association. It cannot be an amount owed to a third 8 party.

9 THE COURT: You need to stay near your 10 microphone so the court reporter can get a clean record.

11 MR. SHULL: Oh, I'm sorry.

12 THE COURT: Thank you. I mean, you don't 13 have to bend over, just don't wander away.

14 MR. SHULL: It has to -- They cannot put

15 a lien for a third party obligation. Their account 16 record will clearly show that when I started disputing

17 things, it was $61.95 for a mowing charge, third party. 18 That charge got them -- they got that charge up to

19 additional charges and everything else to over $300. I

20 think it was $395. Now, while this was happening, we 21 were disputing that charge and the charges that were

22 assessed with it. That's where the other attorney came

23 in, attorney Chris and attorney Benson. So it was under 24 negotiation. In other words, the debt hadn't been

25 determined yet. Well, what happened was after these

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1 negotiations, attorney Benson and the Homeowner's 2 Association agreed that there was no obligation at all.

3 Well, while this was happening and interestingly enough,

4 right after the date of the letter that my attorney to 5 attorney Benson is 31 May, the lien was put on the

6 property two weeks before that, according to the County

7 records. That meant that this was done intentionally, 8 with I think malice. And the fact that nobody would

9 identify it later, even made it worse. Well, okay, so 10 now we have the problem with the source of the lien is

11 wrong. Second thing is the Property Code says, and the

12 reason why we have the Property Code provisions in 2009 13 and in 2013, is because of the fact that people were

14 using these liens to encumber people illegitimately,

15 illegally or fraudulently. And so therefore the 16 Property Code mandated that if you are going to put a

17 lien on the property, you have to send a certified mail. 18 I emphasize, this is explicit in the regulations, in the

19 Code, a certified notice to the party to which the lien

20 is going to be placed. There is no and's, if's or 21 but's, there is no alternatives, there is no this and no

22 that. Well, the reason for is that because then the

23 recipient is put on notice that he has certain other 24 legal rights that he can exercise. He can exercise the

25 collection policy of the Homeowner's Association, which

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1 says that he is supposed to be offered certain ways to 2 pay. That never happened. He's offered what we call an

3 alternative resolution system. That never happened.

4 Because there was no knowledge of the lien. I never 5 knew there was a lien, so I couldn't avail myself for

6 the remedies to solve it. That was the same thing that

7 happened in August of 2009. They claim that their 8 notice is because it is on our account statement. There

9 was never any notice. Notice puts me on alert that I've 10 got to do something. Now, that's okay. So now they

11 have not only -- they created a lien, illegal lien. Now

12 they ignored the requirements of the regulation. There 13 has been, and as we know under discovery, up till now,

14 there are no certified notices. Well, what happens next

15 is that the Board requires under Robert's Rules of 16 Order, that -- and their procedures, as they define,

17 that the Board -- when they meet on special Board 18 meetings or in the annual meetings, they discuss

19 violations that are going to be processed for lien.

20 This record doesn't exist for either of my liens. In 21 fact, in half the minutes they don't have that

22 information that they are supposed to have, so we don't

23 know when the lien was proposed to be issued. All we 24 know is when it was recorded. Okay. Well, that's -- so

25 we'll continue on that. So the next thing you have is

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1 allegedly that Board member, that minutes will show 2 approval. Now, it has to go to be filed, it has to be

3 prepared and filed. There are no records in that. They

4 don't -- There is no financial records to backup anybody 5 did anything. We have an attorney that's in charge of

6 the liens, but I sure as heck -- he's had problems even

7 determining what a job description was. Discovery, he 8 says, I don't know. And so, you know, one thing leads

9 to another, so now we got this morass of deliberately 10 abusing lien authority. Now they say that the Plaintiff

11 refuses to pay on the -- in August 2009, they have

12 mysteriously out of nowhere. Now you have to remember, 13 this discovery has been going on for almost a year now,

14 two years prior to the initiation of the lawsuit, they

15 come up with records on 2009 that show that apparently I 16 was refusing to pay, and they have now told the Court

17 that I used the excuse or I propose that there were 18 mailing address differences. There were. What happened

19 is they were mailing these things to my previous

20 address, or my tenant was not forwarding to me. 21 Regardless, I never got any certified notice at all.

22 Now, the -- now that's the Property Code. The actual

23 codes of the neighborhood association also require 24 certified mail in two cases. They require certified

25 mail on violations, what we call the ten day notice, and

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1 that's the basis for -- one of the basis for a lien. 2 The other one that they are required to do is the

3 collection process and payment option. If in fact I owe

4 money, they are supposed to give me a certified notice. 5 Well, guess what, they have no records of making any of

6 these notices, whether certified or not. Now, here we

7 have a classic case of what I consider conscious 8 indifference at best, which in fact constitutes fraud.

9 So we now have these liens that have been recorded, and 10 Mr. Shull doesn't know about them, and the course goes

11 through until May of 2013, when in their objections,

12 they objected to the wrong affidavit, but one of my 13 tenants basically stated under oath that the reason why

14 he would not buy the house is because that's why -- how

15 he found the lien. He wanted to buy the house, so he 16 went and checked the Court records and we found out that

17 this lien existed. Now, if they were full of good faith 18 and everything, you would think that the knowledge of

19 this fraudulent lien would have been settled. I mean,

20 there was no debt now. Guess what? The County records 21 don't show any settlement of this latest lien. It's

22 been in existence for almost a year and a half since

23 they were told that the lien exists. Now, Your Honor, 24 that to me is just gross bad faith. So the reason why

25 the second lien was also incorporated is because I want

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1 to show a pattern, a pattern of abuse, of ignoring the 2 laws and the rules that apply. It is very clear.

3 Property Codes, and I cited a case, that said it is

4 mandatory a certified notice. It is not one of these 5 things that, you know, you decide what you are going to

6 do today or tomorrow. That's exactly how they treated

7 the covenants, the violations on every other document -- 8 declaratory document that they have on this Homeowner's

9 Association. That's the purpose of this lawsuit. The 10 lien is only indicative of what they've done or haven't

11 done, to come here to this Court and say that I don't

12 have anything to complain about. Your Honor, I have 13 taken the extreme measure of doing everything prior to

14 initiating this lawsuit, to resolve and answer my

15 questions without avail. These Defendants have 16 concerted together, because you can't do these things

17 one or the other. They've done it collectively, 18 individually and jointly, so therefore I'm requesting

19 that you deny their summary judgment for the fraudulent

20 lien to be thrown out, deny any sanctions that they may 21 request, and issue an order in effect for the Plaintiff,

22 who then has a partial summary judgment motion for the

23 fraudulent lien. 24 THE COURT: Thank you, Mr. Shull do you

25 have any new or different arguments with regards to your

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1 motion for partial summary judgment? 2 MR. SHULL: No, Your Honor. I'm not sure

3 how to handle that, but I would rather wait and see what

4 your decision is, as to what I would do with my summary 5 judgment.

6 THE COURT: Okay. Very good. So I want

7 to make sure I have everybody's correct fax numbers. 8 Mr. Shull, you're (210) 670-1418?

9 MR. SHULL: Yes, ma'am, but if it is 10 possible, if you were going to try to communicate with

11 me, could you do it with e-mail?

12 THE COURT: I'm going to fax my orders. 13 MR. SHULL: Because I don't have a

14 full-time fax machine, that's the reason.

15 THE COURT: Okay. Then I will mail it to 16 you. Mr. Hensley, 512-708-8777?

17 MR. HENSLEY: Correct, Your Honor. 18 THE COURT: And Mr. Noel (210) 734-0379?

19 MR. NOEL: Yes, ma'am.

20 THE COURT: Okay. I will fax the orders 21 probably tomorrow morning. And Mr. Shull, I will fax

22 yours, I'll also drop one in the mail for you as well.

23 MR. SHULL: I appreciate that. 24 MR. NOEL: Your Honor, may I approach

25 with an order?

TRACY RAY PLUMMER - OFFICIAL COURT REPORTER 407TH DISTRICT COURT (210) 335-2895 45

1 THE COURT: Yes, please. Thank you. 2 Okay. Thank you all for your excellent arguments.

3 (Proceedings adjourned)

4 5

7 8

TRACY RAY PLUMMER - OFFICIAL COURT REPORTER 407TH DISTRICT COURT (210) 335-2895 46

1 STATE OF TEXAS ) 2 COUNTY OF BEXAR )

3 I, TRACY RAY PLUMMER, Official Court Reporter

4 in and for the 407th District Court of Bexar County, 5 State of Texas, do hereby certify that the above and

6 foregoing contains a true and correct transcription of

7 all portions of evidence and other proceedings requested 8 in writing by counsel for the parties to be included in

9 this volume of the Reporter's Record, in the 10 above-styled and numbered cause, all of which occurred

11 in open court or in chambers and were reported by me.

12 I further certify that this Reporter's Record 13 of the proceedings truly and correctly reflects the

14 exhibits, if any, admitted by the respective parties.

17 /s/Tracy Ray Plummer CSR #3586 18 Expiration Date 12/31/15 Official Court Reporter, 407th District 19 Bexar County, Texas 100 Dolorosa Street 20 San Antonio, Texas 78205 (210) 335-2895 21

TRACY RAY PLUMMER - OFFICIAL COURT REPORTER 407TH DISTRICT COURT (210) 335-2895