Pamela Mehl v. David Stern

Opinion

ACCEPTED

03-14-00697-CV

6167008

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/21/2015 11:17:34 PM

JEFFREY D. KYLE

CLERK

No. 03-14-00697-CV

FILED IN

3rd COURT OF APPEALS

In The Court of Appeals AUSTIN, TEXAS For The Third Court of Appeals District 7/21/2015 11:17:34 PM Austin, Texas JEFFREY D. KYLE Clerk

PAMELA MEHL,

Appellant

v.

DAVID STERN,

Appellee

ON APPEAL FROM THE 250TH DISTRICT COURT TRAVIS COUNTY, TEXAS

TRIAL COURT CAUSE NO. D-1-GN-14-002071

BRIEF OF APPELLEE DAVID STERN

Brent A. Devere (Lead Counsel) Attorney at Law SBN 00789256 1411 West Avenue, Suite #200 Austin, Texas 78701 Tel: 512-457-8080 Fax: 512-457-8060 Email: BDevere@1411west.com

Counsel for Appellee David Stern

TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………....................iii-iv STATEMENT OF THE CASE………………………………………………1 STATEMENT REGARDING ORAL ARGUMENT……………..................2 STATEMENT OF FACTS…………………………………………………..3-4 SUMMARY OF THE ARGUMENT……………………………..................5-6 ARGUMENT……………………………………………………...................6

A. The restricted appeal should be dismissed in light of the fact that Mehl filed a motion for new trial in the district court……………………………………………........6-8

B. Venue was established in Travis County as a matter of law and therefore does not constitute error apparent on the face of the record…………………………………8-9

C. Judgment for Rescission of the original conveyance is not error………………………………………………………...9-12

D. Judgment for $20,000.00 damages is not error……………………12-13 E. Double recovery for rescission and damages is not error…………13-14 F. Judgment for attorneys’ fees is not error……………………….....14 G. Failure to join IndyMac is not error…………………………….....15 H. Three day notice required for receiver is not applicable…………..16 CONCLUSION AND PRAYER………………………………………….....17 CERTIFICATE OF SERVICE………………………………………………19

i

APPENDIX A. Judgment (CR. 15-26)……………………………………………TAB A B. Motion for New Trial (CR. 32-33)……………………………….TAB B

ii

INDEX OF AUTHORITIES

CASES

Alexander v. Lynda’s Boutique, 134 S.W.3d 845(Tex. 2004)………………………………………………..6

Champion v. Estlow, 456 S.W.3d 363, 364 (Tex. App.—Austin 2015, pet. filed)……………….8

Cooper v. Hamilton County, 2014 Tex. App. LEXIS 1066 (Tex. App.—Waco Jan. 30, 2014, pet. denied)………………………………………………………………....15

Glenn v. Lucas, 376 S.W.3d 268 (Tex. App.—Texarkana 2012, no pet.)……………..........11

Goldman v. Olmstead, 414 S.W.3d 346 (Tex. App.—Dallas 2013, pet. denied)………..................13

Grynberg v. Christiansen, 727 S.W.2d 665, (Tex. App.—Dallas 1987, no writ)……………………...15

McGoodwin v. McGoodwin, 671 S.W.2d 880 (Tex. 1984)……………………………………………….12

Scott v. Gallagher, 209 S.W.3d 262 (Tex. App.—Houston [1st Dist.] 2006, no pet.)………….9

Scott v. Sebree, 986 S.W.2d 364 (Tex. App.—Austin 1999, pet. denied)………………......14

Scott v. Wichita County, 248 S.W.3d 324 (Tex. App.—Houston [1st Dist.] 2007, no pet.)………….9

TAC v. Boothe, 94 S.W.3d 315 (Tex. App.—Austin 2002, no pet.)…………………….......6

Taylor v. State 293 S.W.3d 913 (Tex. App.—Austin 2009, no pet.)……………………….6

iii

Walton v. First Nat'l Bank of Trenton, 956 S.W.2d 647 (Tex. App.—Texarkana 1997, pet. denied)……………..11

RULES / STATUTES

Tex. R. App. P. 4.2(a)(1)…………………………………………………………7-8 Tex. R. Civ. P. 306(a)(4)………………………………………………………....7-8 Tex. R. Civ. P. 86(1)……………………………………………………………..8-9 Tex. R. Civ. P. 695……………………………………………………………….16 Tex. R. Civ. P. 39………………………………………………………………...15 Tex. Fam. Code Ann. §105.003…………………………………………………..6

iv

STATEMENT OF THE CASE

Nature of the Case: This case is a restricted appeal in connection with a default judgment obtained by Appellee Stern.

Trial Judge: The Honorable Jon Wisser 250th Judicial District Court of Travis County, Texas

Course of Proceedings: David Stern, Appellee, filed suit against Pamela Mehl, Appellant, primarily to seek rescission of a 50% real estate property conveyance that was originally made pursuant to a property settlement agreement (CR 3-12).

Stern further sought monetary damages, and the appointment of a receiver (CR 3-12). Stern’s Original Petition was the live pleading in this case (CR 3-12).

Mehl was properly served at the office of her attorney (CR 13-14). Stern subsequently obtained a default judgment against Mehl (CR 15-26).

Mehl filed a motion for new trial in the trial court but failed to pursue said motion (CR 32-33).

Trial Court Disposition: The trial court granted a default judgment for Stern (CR 15-26).

Mehl subsequently pursued this restricted appeal notwithstanding the fact that she also filed a motion for new trial in the trial court (CR 32-33 and CR 34-60).

2

STATEMENT REGARDING ORAL ARGUMENT

Stern does not seek oral argument in this appeal.

3

STATEMENT OF FACTS

Stern filed Plaintiff’s Original Petition in the Travis County District Court on June 26, 2014 (CR 3-12). The primary basis of the lawsuit was to rescind a real estate conveyance of Stern’s 50% interest to Mehl after Mehl defaulted on the preexisting third party mortgage (CR 3-12). Stern primarily sought rescission of the conveyance in his capacity as a creditor pursuant to a vendor’s lien as well as under a breach of contract claim (CR 3-12). Stern further sought monetary damages in connection with the arrears as well as damages to his credit (CR 3-12). Finally, Stern sought the appointment of a receiver primarily to protect the property from the underlying lienholder (CR 3-12).

On July 3, 2014, Stern served Mehl in person with a citation and a copy of the lawsuit at the office of an attorney (CR 13-14). Moreover, the process server filed an affidavit of service with the court on July 8, 2014 (CR 14).

Stern did not dispute that the subject real property is located in Williamson County. However, Stern alleged several theories in Plaintiff’s Original Petition in support of Travis County as the appropriate venue, and Stern incorporates Plaintiff’s Original Petition in this regard (CR 3-12).

4

Mehl failed to timely file an answer in the lawsuit and further failed to timely object to the venue of the lawsuit (CR 2).

On July 29, 2014, the Travis County District Court formally entered a default judgment against Mehl in favor of Stern. For the purposes of brevity, Stern incorporates the judgment of July 29, 2014 and all resulting relief (CR 15-26).

Stern filed supporting documents in support of the default judgment (CR 27-

29). Stern further filed an Affidavit of Attorney’s Fees (Supp. CR 15-17). Stern also filed a Non-Military Affidavit and Certificate of Last Known Address (Supp. CR 18-21 and Supp. CR 13-14).

On or about October 13, 2014 Mehl file a Motion for New Trial in Travis County District Court (CR. 32-33). However, Mehl failed to pursue the matter.

On or about November 4, 2014, Mehl filed a restricted appeal in this cause (CR. 34-60).

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SUMMARY OF THE ARGUMENT

The fact that Mehl filed an arguable timely motion for new trial in the Travis County District Court precludes her from also pursuing a restricted appeal (CR 32- 33). Mehl subsequently abandoned the motion for new trial instead of scheduling it for a hearing with the trial court.

There is no error apparent on the face of the record in so much as 1) Mehl has not alleged any defect whatsoever in the service of process, 2) Mehl waived any challenge to venue and 3) all the relief in the judgment is supported by the clerk’s record.

The clerk’s record contains considerable evidence in support of the judgment, including a copy of the warranty deed which recites the obligations of Mehl to assume the underlying mortgage on the subject property. There is further written evidence of the many delinquent payments on the underlying mortgage by Mehl, all of which support the rescission and damages that are the basis of the judgment. Finally, the record contains an affidavit of attorneys’ fees.

6

Moreover, contrary to the assertions of Mehl, there is no requirement of a reporter’s record in a no answer default judgment hearing (as opposed to a post answer default hearing). Taylor v. State, 293 S.W.3d 913, 916 (Tex. App.—Austin 2009, no pet.). Furthermore, this case is not a family law case that might require a reporter record under Tex. Fam. Code Ann. §105.003.

ARGUMENT

A. The restricted appeal should be dismissed in light of the fact that Mehl filed a timely motion for new trial in the district court.

The requirements for a restricted appeal are the following: 1) A notice of restricted appeal must be filed within six months after the judgment is signed; 2) The notice is filed by a party to the lawsuit; 3) The party did not participate in the hearing that resulted in the judgment complained of and the party did not file a timely post-judgment motion or request for findings of fact and conclusions of law; and 4) Error must be apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) and TAC v. Boothe, 94 S.W.3d 315 (Tex. App.—Austin 2002, no pet.).

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The record is clear that the trial court entered a default judgment on July 29, 2014 (CR 15-26). However, on October 13, 2014, Mehl filed a Motion for New Trial in the trial court (CR 32-33).

Although the deadline for a motion for new trial is typically thirty days after the entry of judgment, both Tex. R. App. P. 4.2(a)(1) and Tex. R. Civ. P. 306(a)(4) extend the deadline for a motion for new trial if the defendant does not receive actual or constructive notice of the judgment within twenty days of the entry of judgment. Instead, under such circumstances the time period for the motion for new trial deadline begins when the defendant first acquired actual knowledge of the default judgment and not later than ninety days after entry of the judgment.

Mehl admits in Appellant’s Brief that she never received the notice of judgment from the district clerk and that she first became aware of the default judgment in October, 2014 (Appellants Brief, Page 11, paragraphs #13 and #14).

Therefore, by her own admission, the motion for new trial was timely filed since it was filed on or about October 13, 2014, well within 30 days of when Mehl supposedly first became aware of the judgment in October of 2014, and less than 90 days after the date of judgment (CR 32-33). Under such circumstances, Mehl’s

8

motion for a new trial was timely filed and she could have pursued relief from the trial court under both Tex. R. App. P. 4.2(a)(1) and Tex. R. Civ. P. 306(a)(4). Consequently, Mehl should not be able to pursue this restricted appeal.

B. Venue was established in Travis County as a matter of law and does not constitute error apparent on the face of the record.

Mehl argues at length that Travis County was an improper venue for the underlying proceeding, including the appointment of the receiver, in light of the fact that Williamson County is the mandatory venue. Therefore, according to Mehl, the filing of the lawsuit in Travis County constitutes reversible error apparent on the face of the record.

However, the law is clear that venue is waived if a defendant fails to timely object in the trial court. Tex. R. Civ. P. 86(1) establishes the procedure for objecting to venue and also clearly states that a failure to timely object is a waiver of venue. Champion v. Estlow, 456 S.W.3d 363, 364-365 (Tex. App.—Austin 2015, pet. filed).

9

Several courts have confirmed that even mandatory venue is waived if a party fails to timely object under Tex. R. Civ.P. 86(1). Scott v. Wichita County, 248 S.W.3d 324 (Tex. App—Houston [1st Dist.] 2007, no pet.) and Scott v. Gallagher, 209 S.W.3d 262, 264 (Tex. App—Houston [1st Dist.] 2006, no pet.). Moreover, both courts have confirmed that venue is not jurisdictional and is waived by a defendant who fails to timely object to venue.

In short, venue, including mandatory venue, is not jurisdictional. The failure of Mehl to timely file an objection to venue prior to the judgment date constituted a waiver of venue. Therefore, the district court correctly acquired venue in Travis County as a matter of law when it entered a default judgment in this proceeding.

C. Judgment for rescission is supported by the record

One of the key aspects of the underlying judgment was the rescission of the original 50% land conveyance from Stern to Mehl in light of Mehl’s failure to tender the required payments to the underlying mortgagee.

10

The judgment itself incorporates the original warranty deed as an exhibit whereby Stern conveyed his 50% interest to Mehl (CR 15-26). The warranty deed from Stern to Mehl further contains clear language that obligated Mehl to timely pay all mortgage payments on the existing mortgage and further that she was required to indemnify Stern from any default (CR 19-26).

In addition, unlike a more typical real estate transaction that involves an assumption of a prior mortgage, Mehl was already a 50% owner of the property prior to the conveyance of Stern to Mehl of his 50% interest (CR 19-26). In addition, the judgment does not disturb Mehl’s preexisting 50% interest and only focuses on the subsequent 50% interest Mehl received from Stern.

Stern sought rescission of the underlying conveyance in his original petition pursuant to both a trespass to try title claim to foreclose on his implied vendor’s lien AND pursuant to a breach of contract claim (CR 3-12). In addition, paragraph #8 of the original petition referenced a deed of trust to secure assumption in support of Mehl’s obligations with respect to the conveyance from Stern to Mehl (CR 3-12).

11

There is case law that supports that a party may seek the remedy of rescission through a judicial proceeding as a result of failure of a party to pay a secured debt. Walton v. First Nat'l Bank of Trenton, 956 S.W.2d 647, 652 (Tex. App.—Texarkana 1997, pet. denied) and Glenn v. Lucas, 376 S.W.3d 268, 276 (Tex. App.—Texarkana 2012, no pet.). Stern further offered evidence of the delinquency of the mortgage payments by Mehl which could easily support a basis of foreclosure of a vendor’s lien and rescission of the original 50% interest (CR 27-29).

The arguments by Mehl that a rescission does not address a supposedly larger settlement agreement have no merit. Firstly, the focus of the underlying judgment was to specifically address a default by Mehl in connection to the conveyance by Stern of his 50% interest in the subject property.

Mehl has never directly challenged in her brief the existence of the vendor’s lien and the right of Stern to seek rescission of the conveyance in his capacity as a creditor in the transaction. Instead, Mehl argues that it is improper to allow a rescission of only the property conveyance without also addressing the larger settlement agreement.

12

The Texas Supreme Court recognized an implied vendor’s lien in connection to the transfer of a particular piece of real estate between spouses pursuant to a divorce decree. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984). Therefore, the fact that there is a larger settlement agreement does not invalidate efforts by Stern to seek rescission of the underlying real estate transaction.

Stern exercised his right to seek rescission of the transaction based on his implied vendor’s lien and based on a breach of contract claim after Mehl defaulted on the obligation and exposed Stern and the property to great financial harm. The vendor’s lien and any contract claims are directed solely at the conveyance itself. Therefore, as long as Stern prevails under either an implied vendor’s lien or a breach of contract claim, he would be entitled to rescission.

D. Judgment for $20,000.00 damages is not error

Contrary to Mehl’s assertion that there is no evidence in support of the monetary damages, Stern offered evidence of the delinquency of the underlying mortgage which totaled approximately $16,471.50 (CR 27-29). Moreover, Stern specifically alleged in paragraphs #10 and #11 of his original petition that there was a material default with at least five delinquent mortgage payments (CR 3-12).

13

Stern further alleged in paragraph #19 of his original petition damages to his credit, a fact that could easily be supported by the record in light of many months of delinquent payments for the main mortgage (CR 3-12 and CR 27-29).

Therefore, an award of $20,000.00 was necessary to address the significant arrears on the mortgage and/or to compensate Stern for damages to his credit.

E. Double recovery for rescission and damages

In the case at bar, Stern sought monetary damages in addition to rescission of the conveyance. A rescission of the conveyance alone would not have remedied the damages to Stern’s credit report and would not have remedied the significant mortgage arrears. Therefore, an award of monetary damages was essential to facilitate the rescission of the conveyance.

There is case law, in the context of a judgment for specific performance, in support of an award of monetary damages when such damages are incidental to the order of specific performance and fall short of damages awarded from a breach of contract claim. Goldman v. Olmstead, 414 S.W.3d 346, 361-362 (Tex. App.— Dallas 2013, pet. denied).

14

In essence, the additional monetary compensation harmonizes the rescission award with any incidental damages so as to place the party in the pre default situation. As previously stated, Stern offered evidence of delinquent payments and damages to his credit (CR 3-12 and CR 27-29).

The cases cited by Mehl are inapposite as they appear to focus on rescission based on fraud rather than in connection to a vendor’s lien/foreclosure. For example, the Sebree case cited by Mehl involves statutory fraud and specific performance and does not address a rescission based on a judicial foreclosure and/or a loan default. Scott v. Sebree, 986 S.W.2d 364, (Tex. App.—Austin 1999, pet. denied).

F. Judgment for attorneys’ fees is not error.

Stern offered an affidavit of attorneys’ fees at the original default hearing (Supp. CR 15-17). Therefore, any argument by Mehl that the attorneys’ fees are not supported by the record have no merit.

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G. Failure to join Indymac and TRCP 39

Assuming for the sake of argument that Indymac or any other lienholder is an indispensable party, the failure to join said party does not render the judgment void and does not deprive the court of jurisdiction. Cooper v. Hamilton County, 2014 Tex. App. LEXIS 1066 (Tex. App.—Waco Jan. 30, 2014, pet. denied). Instead, in the most extreme sense, the judgment would be voidable only as to the interest of the omitted third party.

As a practical matter, the lienholder, not Mehl, would have standing to challenge the judgment to the extent its interest in the property was affected by the judgment. There is nothing in the judgment that threatens the validity of any lien on the property one way or the other (CR 15-26).

Moreover, the harm to the lienholder would need to be substantial to justify a challenge of the judgment. Grynberg v. Christiansen, 727 S.W.2d 665, 666-67 (Tex. App.—Dallas 1987, no writ).

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H. Three day notice required for receiver

In light of the fact that Stern served Mehl with the actual lawsuit and the request for receiver, any issue of her notice is moot (CR 3-12). Obviously, Mehl had over twenty days from the date of personal service of the lawsuit to file an answer, a time far greater than the requisite three notice she complains of in her brief.

Moreover, Tex. R. Civ. P. 695, the receiver statute, deals with adverse parties. Stern contends that only Mehl, as an owner of the property, is an adverse party in this lawsuit.

Furthermore, there is evidence in the record that the receiver has subsequently filed post judgment motions and provided notice to Mehl by and through her counsel (Supp. CR 49-51).

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CONCLUSION AND PRAYER

The filing by Mehl of a motion for new trial precludes her right to also pursue a restricted appeal. There is no error apparent on the record in the context of venue in light of the fact than Mehl waived any venue challenge. It is also undisputed that Mehl was properly served with the lawsuit and there was no defect in the affidavit of service. Finally, the record contains evidence in support of the judgment in all respects: a judgment for title based on rescission pursuant to foreclosure of a vendor’s lien and breach of contract, as well as monetary damages, attorneys’ fees and all other relief in the judgment.

WHEREFORE Appellee, David Stern, respectfully requests that this Court affirm the trial court’s judgment. Appellee prays for other and further relief to which he may be justly entitled.

Respectfully submitted,

/s/ Brent A. Devere

Brent A. Devere

Texas Bar No. 00789256

1411 West Avenue, Suite #200 Austin, Texas 78701

Tel. (512)-457-8080 Fax. (512)-457-8060 Email: BDevere@1411west.com

ATTORNEY FOR APPELLEE,

DAVID STERN

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CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft Word 2013 and contains approximately 3455 words as determined by the computer software word count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Brent A. Devere

Brent A. Devere

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CERTIFICATE OF SERVICE

Under Texas Rule of Appellate Procedure 9.2, I certify that a copy of this Appellee’s Brief was filed through the electronic filing system. Under Texas Rule of Appellate Procedure 9.5, I further certify that a copy of this brief was served on July 21, 2015 upon the following counsel for Appellant via electronic notification after 5:00 P.M.:

The Lefler Law Firm VIA EMAIL: slefler@leflerlegal.com Sandra M. Lefler 1530 Sun City Blvd., Suite 119 Austin, Texas 78633 Telephone: (512) 869-2579 Telecopieur: (512) 583-7294 Email:slefler@leflerlegal.com

/s/ Brent A. Devere

Brent A. Devere

TABA

Notl69 sent. ~ lntenocutOry l'lone ~ isp Part~s~· _,fii_._ - - --- DC BK14217 PG560 Filed in The District Court Dlsp code: CVD I CLS . YA1 ( \{ of Travis County, Texas Redact pgs:: _ __::._ _ _--:o::---==:::- Judg;--rb\ \J Clerk Q--:J JUL 2 9 2014 CAUSE NO. D-1-GN-14-002071

DAVID STERN, * IN THE DISTRICT COURT Plaintiff *

*

v. * * 250n 1 JUDICIAL DISTRICT

*

*

PAMELA MEHL, * Defendant * TRAVIS COUNTY, TEXAS

JUDGMENT FOR TITLE TO REAL ESTATE AND DAMAGES

The hearing on this cause was held on July 29, 2014. Plaint in: David Stern, appeared, by and through counsel and Defendant, Pamela Mehl, although duly cited to appear by filing an answer herein, failed to file an answer within the time allowed by law.

I. On the claim of Breac h of Contract, the Court find s in favor of Plaintit1~ David Stern, and against Detendant, Pamela Mehl.

2. On the claim ofTrespass to Try Title, the Co urt finds in favor of Plaintiff, David Stern, and against Defendant, Pamela Mehl.

DC BK14217 PG561

Pursuant to the pleadings and evidence on file , the Court finds and ORDERS as follows :

A. The Court recognizes a vendor' s lien, equitable lien and a deed oftrust to secure assumption for and in favor of David Stern on the Property (The ''Property" is otherwise known as 700 Grove Lane, Georgetown, Texas 78626. Williamson County along with all improvements and mobile homes, and is further described on Exhibit I attached herein) by virtue of David Stern's prior 50% conveyance of the Property to Pamela Mehl.

B. The Court hereby awards David Stern judgment for title and possession of 50% of the Property based on a rescission of the prior conveyance under document #20 13063557 of the Williamson County Real Property Records.

C. The Court further awards David Stern actual damages against Pamela Mehl in the amount of$20,000.00 (Twenty Thousand and 00/ 100 Dollars) .

D. The Court awards David Stern, attorneys ' fees in the amount of$2,500.00 (Two Thousand Five Hundred and 00/100 Dollars) , against Defendant, Pamela Meh I.

E. Plaintiff. David Stern, is entitled to post judgment interest on the total amount of the judgment awarded hereinabove, at the rate of 5% per annum trom the date this judgment is signed until paid .

F. Costs are hereby taxed against Defendant , Pamela Mehl.

G. Plaintift: David Stern, has a right to the Property, and the Property is in danger of being materially injured, thus requiring the appointment of a receiver. The Court appoints Nancy Perry as receiver. Receiver shall take an oath swearing to perform the duties of receiver faithfully, and receiver shall post a $200.00 (Two Hundred and 00/ 100 Dollars) bond that shall be conditioned on faithful discharge of duties as receiver and obedience to the orders ofthe Court. Receiver shall be vested with the powers to take charge and keep possession ofthe

DC BK14217 PG562

Property, receive rents, and sell the Property and hire real estate brokers and other agents to sell the Property, with such sale being subject to Court approval. The rent and sale proceeds shall be used to pay all valid secured liens on the property and property taxes due plus payment of all amounts due under this judgment, with the remaining proceeds, if any, being paid 50/50 to Plaintiff and Defendant. The receiver shall be entitled to compensation at $175 .00 an hour and reimbursement of reasonable and necessary expenses, after application to and approval by the Court tor such fee s and expenses. Receiver' s fees and expenses shall be taxed as costs.

IT IS FURTHER ORDERED that Plaintiff, David Stern, may record this order in the real propetiy records as evidence of ownership ofthe Property, and is entitled to enforce this judgment through abstract, execution and any other process necessary, and all writs and processes for the enforcement and collect ion of this judgment and costs may issue.

IT IS FURTHER ORDERED that this is a final judgment and finally dis poses of all parties and all claims and is appealable.

:)c~ ~

SIGN EDthisthe, 1 dayofJul y, 2014.

Approved as to Form :

DC BK14217 PG563

Q______ l c.J ---------~. Brent A. Devere SBN#00789256 1411 West Avenue, Suite #200 Austin, Texas 7870 I Ph: 512-457-8080 Fax: 512-457-8060

Attorney for David Stern

DC BK14217 PG564

EXHIBIT 1

)

I

19

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1

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20

DC BK14217 PG565

12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 16:33:15 Exhibit Pg 7 of 34

Special Warranty Deed

Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or your driver's license number.

Date: May 3, 2013 Grantor: David Stem Grantor's Mailing Address:

b 100 cc tvr&.- OQ.. 4*-b 00 LOI M& t-L~, cA

Grantee: Pamela Mebl Grantee's Mailing Address:

700 Grove Lane Georgetown, Texas Williamson County

Consideration:

A settlement agreement in a bankruptc~ case style In Re: Pamela Christina Mehl, filed under Case No. 12-12209 in the Western District of Texas, Austin Division, and ten dollars and other valuable consideration paid by Grantee, and Grantee's assumption of the unpaid principal and earned interest on the note in the original principaJ sum of Two Hundred Fifty-six Thousand Two Hundred dollars ($256,200.00) dated August 11, 2004, executed by David Stern, and payable to the order oflndyMac Bank, F.S.B.. The note is secured by a vendor's lien retained in a deed dated August 11 , 2004, to David Stern and Pamela Mehl, and additionally secured by a deed of trust dated August 11, 2004, from David Stern and Pamela Mehl to Charles A. Brown, Trustee, recorded in clerk's file number 2004064127 of the official public records of real

21

DC BK14217 PG566

12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 16:33:15 Exhibit Pg 8 of 34

property of Williamson County, Texas. Grantee agrees to indemnifY and hold Grantor harmless from payment of the note and from performance of Grantor's obligations specified in the instruments securing payment of the note. Grantor assigns to Grantee the casualty insurance policy on the property, all utility deposits for utility service at the property, and all funds held in escrow for payment of taxes and insurance premiums. Property (including any improvements}:

The legal description is attached hereto and incorporated herein for all purposes Reservations from Conveyance and Exceptions to Conveyance and Warranty:

Grantor reserves no interest in any oil, gas, and other minerals in and under and that may be produced from the property.

This deed is subject to all easements, restrictions, conditions, covenants, and other instruments of record.

Grantor, for the consideration and subject to the reservations from conveyance and exceptions to conveyance and warranty, grants, sells, and conveys to Grantee all of Grantor's interest in the property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and hold it to Grantee and Grantee's heirs, successors, and assigns forever. Grantor binds Grantor and Grantor's heirs and successors to warrant and forever defend all and singular the property to Grantee and Grantee's heirs, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise, except as to the reservations from conveyance and exceptions to conveyance and warranty.

When the context requires, singular nouns and pronouns include the plural.

Grantee assumes all ad valorem taxes due on the property for the current year.

22

DC BK14217 PG567

12-12209-hcm Doc#124-2 Filed 05/22/13 Entered 05/22/13 16:33:15 Exhibit Pg 9 of 34

This instrument 'WaS prepared based on information furnished by the parties, and no independent title search has been made.

STATEOF Gc.f.r", ·~ § COUNTY OF Ls A~) q_ t.. r §

This instrument was acknowledged before me on J ""'.... 2. <..f 1 u 1J by David Stem.

PREPARED IN THE OFFICE OF: AFTER RECORDING RETURN TO;

@ H. Bryan Hicks, PLC Pamela Mehl 901 2nd St. 700 Grove Lane Marble Falls, TX 78654 Georgetown, Texas Tel: (830) 693-2165 Fax: (830) 693-8185

23

DC BK14217 PG568

12-12209-hcm Claim#S Part 2 Filed 10/31 / 12 Exhibit Page 27 of 34

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B!OLNNT1'40 I& 10 lrot\ pip6 fc~ comot po.C ill IlK Noi1JIIiru of Oro•4 1.&~~& l'ot tbe ~ _ , . ~t' thlltna 4~ in 1 Wllfll'dJ De..! to ~by J1111 fKll, recorded in Volum• 7lO,I'qt17l ollhc Willl&maon Cowoty ee.d 111.~ b&Uia tt.. Souu-.t coroor oC'Mrd Moon TtiiCll &nclthia ti'KI;

•

nmNC'e: s l ,. 16" l-'" w l7~ . 76 r.- will! the North rrnc ororou!Anc 10 an lroa pln riJ\jnQ fet the ScUhcut Clllrnu or thl Tnct tl u d-.rlbcod in Mid Moen Wart&lll)l Oerd for the Sw!hwuc (#11(1 of -.ld Trxt I and 1M lnd;

THliN~: lOll~ Ih. QllnfiiO n ll11t oC nidi ,..a I &ncl Trwd tl; N (1' O>' t17" W ~58.05 r~ 1o an leon pin foo.md &ncl N 16' n• 47" W 4lJ . ~S to &n iron pin found (01"\lltl'lor\hea.l- of' Mid TroQ nand ~n8 Ibe Honh- corner or Mid T r•ct I 1111<1 Oil• tr"";

iliENl;;~: wil\ lht ~'l line af lli4T n.a \, I) N 71" I>' I~ " !I. ~lUI fca10u lronp\Qfaund.

2) N n• II' H" H tll.1Hn11e b iro11 pia feNnel, 3) IOJ• II' H .. B 60.01 reel lo 111 )Jcm piR raunct.

4) N 6r 19' 11" a 90.11 r..t 1o aa ~ ph1 fOUIIII bt lhoo Wnlli• oC &aid Jar;Qy cr.~& ror lilt Horthcan ~ oC ••ill Trte~ I lnd tlllllrlet;

THENC;E; 1!0111 che'W~t~t nne or !lid r!ICihy ltKt •a41he l!.qc U~~e of "'d Tl"'ll:: 1.

I) S 12" W )0" E J70,a.4 foet 1o UWA pia~.

2) S ltr ll' lJ" a H 1.151 ret t~ an ium pia klulld, · l) S ,. 40' ~.(" E 19S . I9f~t lo lho pl!ICC ol'&cfU\niiiJu-4 tOIII&IIllnj 17.lJ auu ofJIIJIII.

RECORDERS MEMORA NDUM

All or parts of the text on this page was not clearly legible for satisfactory recorci ~ t ion

Exhibit "_A_. .__•

I

24

DC BK14217 PG569

12-12209-hcm Claim#S Part 2 Filed 10/31 I 12 Exhibit Page 28 of 34

AJl!Nl ccr'ILinlt.a or plftd of land lilualed in Willi~10n County, T~ uu.t ofll\1 John B•ry Sllrvey, Abl\ncl tolo. SI &lld '*Ill \1111 Trta U r.oJNeycd \0 II.&)UIOTII1 A. Moon 'lly Wlirn.nry Oeecl dllcd Ausull JO, I ~S lll'od ~(dod in Volume 1138 , P . 2J 5 of \he om~11 Rcc.orda afWilli~m~Gn Coo..~ty and dcaaibed by mclet 111d bounda ~ fbllowt:

BEG!NNlNG a.t Ul iroa fin fou!\4 inlht NQI\b ltno of Grove 1..Anc for 10. Soo.ttu:..\ comc:r orlhat ~~~~ dciQ'I"bed In 1 Wln'IIIIY Dtlld 10 1\lebald A. Milct, Q Ill!, da\ed Novcfllbei 1, l9a.. Uld r~ in Volumo 1095, Pas• 91J of &aid alli~ial rOCDrdt, bcia& the Soulltw..lt .:ornc:r orttld Mooro ~ and lhiJ 1rae1;

THENCE: N u• l9' 00" w 19-1.76 feet wilh lbc We~~~~~~ of said Moore 1110.. ~i na lho bet it of bearinp cile.d 1-.::reoo~.to 111 iran pin round for lilt l-IMbuJt C>Omd or wd M.ilca 1/'ut beifl& Lbe Northweat eorn1111 or S&id Moariii'CIIhia 1n1;1:

THEHC'E: N 11• 2~ · )J" E 1)7.19 feet to an lr0<1 pln found for the Nonlnrell corn• oflt.l Trac& l aa clr:,t;ribN i~ the afortmenlioncd Moore Wan~nty ~ bcina lhe NMhca$1 t.Ornll' o( aaid Moor, Tr.a II lJ1d thia traa:

TiiEI"CC.: aloag the C<>Glmortlin• ofaaid Tru:t lalldTr.a II, S 16° 53' 47'' E Hl.4) ra~to an iron pin or

~nd. U14 S o• Ol' O'l" E "SI.OHCC\ \c.., iron pin found in lha Nonh line llid Gtavol.ane for the Soulh"cs >;Q('IICf of said Tra!Ot I .,d boina 11-c S011lbcas\ tllnlCir o( Ill ill. ind tl ~ thit tnd;

rnENC£: S 11• ]4' 02" W 699,68 feet 10 lbt place of8qiiii\ID8811d containiQIIl6.67 acru orbml.

RECORDERS MEMORANDUM

All or parts of the tex t on this page was not clearly legible for s>tisfactory rl"r.ortiAt inn

Exhibit"

------

FILED AND RECORDED

OFFICIAL PUBLIC RECORDS 2e04064127 ~E.~~

98/tl/2004 12 :5& Pft

~LLEN $69 . 00

NANCY E. RISTER, COUNTY ~£RK UILLI~"SON COUNTY, T£X~S

• •r · .·,<!! . · <~ . .. :-.:.·.··.··> ··:

25

DC BK14217 PG570

1 11~1111~ IIIII 11/llllllmllll/~ IIIII 1~11 11~111111111 DEED

2009086302

5 PGS

CAD Na. R039Gll

Notice or Coalidentlality rlgbtll: If you are 1 natural penoa, yoa may remove or strike aay of the follmria11 i.Dformatioa from Ibis lastnuaent before it is filed for reeord ia ttac public: ncords: your toCial aecurity number or your driver's liause number.

GENERAL WARRANTY DEED

DATE: November 14, 2006

GRANTOR: Linda Moore, aNa Linda R. Moore, Individually , and as lndependenl Executrix oflhc Eslall: of Ra~nd A. Moore, deceased, Kathy Moore. and RAndy Moore

GRANTOR'S MAILING ADDRESS:

GRANTEE.: David R. Slem and Pamela C. Mehl GRANTEE'S MAILING ADDRESS: 700 Grove Lane, Georgetown, Williamson Counly, Texas 78626 CONSIDERATION:

$10.00 and other valuable consideration, receipt of which is h<rtoby aelalowledgecl, and for lhe paym<nt ofwhieh no lien, eitber express or implied, is herein ~d.

PROPERTY (including improvements):

fEE SIMPLE nTI.E in and to lbe perimt'll:r desaiption of a JS foot wide road containin& S.l!S acres, sppro-Wnately one-half bcin& in the MJ. Garcia Survey, AMnlc! No. 246, and one-half in the John BelT)' Survey, Abstrac! No. 51. in Williamson Counly, Texas, and being a pan of an 85.20 acre tnct coaveyed to Charleo Pmzlcr, et ux, of record in Volume 420, Page 86, O.Cd R~ords of Williamson Cowtty, Texas, ll1d containing all of a JS foot ell shaped strip described in a deed from EIDa M. Lindell and A. WiUiam LindeU 1D Owles Penzler, dated July 23, )968, and recorded In Volume 509, Page 341, Deed Records of Williamson COUIII)', Texas; $aid 3S foot road being rna~ paniculazly described by metes and bounds as follows:

BEGINNJNG at the lower Soutbwcst comer of t1u: said ell shaped >trip in tlu: NOT!h line of County Road IS2, ai!IO being the lower Southwest comer of a 139. 17 acre tnct described in a deed to Etna MiUer and laura Millor, dilled October of 1957;

'!'HENCE North 19 de~ 08 minules Wesi669.J7feet to an ell comer of the 139.17 acres and an ell comer of said ell shaped sllip;

'fHENCE South 71 <kgrecs 20 minutzs 35 J<Conds West 2527.08 feet to • point oo or near lhe upper Southw<11 comer of lhc I )9.17 acres and the upper Southwesr comer of lhc ell shaped strip;

11-IENCE 71 deg=s 17 minutes Wcst 859.01 feet and South 71 degrees 18 minute5 40 seconds West 900.57 feet wilh lhe South line of the $aid 85.20 acre 1n1t1. as fenced, lo an iron pin set Ill !he Southeast comer of a 9.983 Len! tniC~

26

DC BK14217 PG571

I I TIU::NCE. South 70 degrees 57 minutes JO se<:onds West 100.0 feet and South 71 degrees 32 minutes 40 seoonds Wes1417.SJ feet with the South line of the 85.20 a<res and the South line of the 9.983 acres to an inln pin set at the Southeast comer of a 16.867 "'"' tr.ICt;

THENCE North 19 degrees 00 minutes 45 seconds West 111 35 feet past an iron pin on line, continuing in all 554.29 ft:e1 with the common line between lhc 16.867 acre !racl and the 9.983 acre tract to an iton pin set beside a fence comer po51;

n!ENCE Nonh 27 degrees 37 minutes 40 seconds West 74 .92 to an iron pin set in the common line bctwun the 16.867 acres and the 9.983 acres, and continuing with the same line in all 144.54 feet to a point on curve wi!h a radius of80.59;

THENCE with the arc of the curve to the righ~ the chord bears South 54 degrees 19 minutes East 77.92 feet to the end of the curve;

n!ENCE South 27 degrees 37 minutes 40 seconds East n.ss feet to • point;

niENCE South 19 degrees 00 minulcs 45 seconds East 522.21 feet to a point;

ntENCE North 71 de~ 32 minules 40 seconds East 382.69 feet and Nonh 70 degrees 57 minutes JO seconds East 99.94 feet to the East line of the said 9.983 aero tract;

niENCE Nonh 71 degrees 18 minutes 40 seconds Eas1 900.67 feet and Nonh 71 de~es 17 minutes East 859 .02 feet to a point on or ncar the eommon line between the 85.20 acres and the I 39.17 acres;

n!ENCE North 71 degrees 20 minutes East 2S6 1.53 feet to the Northwest eo mer of the ell shaped ttoct demibcd in Volume 509, Page 341, Deed Records of Williamson County, Texas;

THENCE South 19 degltt3 09 minutt! 20 !.CCOftds P.ast 704 .70 feet to the Southeast corner of the ell shaped tl"lct and to lhe Nunh line ofCOIJllty Road 1~2;

TiiENCE South 71 degrees 08 minutes 20 seconds West 35.0 feet with the North line of County Road 152, to the POINT OF BEGINNING .

RESERVATIONS FROM AND F.XCEPTlONS TO CONVEYANCI'. AND WARRANTY:

This conveyance Is made and acupled subject ro: I) all reS1rictlons, coverwu.s, conditions, rights-of-way and as.scssments if any. affecting the ~bed property that are valid, existing and properly of record; 2) •II easements. indudifli specifically but without limita1ion any access, ingress and egress, or other easement granted to any other person fOJ the use of the subject roltd; and 3) lD taJtes for the year 2007 and subsequent yean.

Grantor, for the conside1'81Jon and subj«t to the reservations from and uceptions to oonveyan« and warranty, graniS, sells and conveys to Grantee the property, tol!ether with ~11 and >i1111ular the rights and oppunenonces !Mmo in anywise belonging, to have and to hold it to Grantee, Grantee's heirs, executors, admlnislnltors, successors 1111d ossigns forever. Grantor hereby bin<h Grantor and Grantor's heirs, executors, administnltors, sue<:<:S50rs and aMigns to wanam and f=ver defend all and singular the property to Grantee and Grantee's heirs, executors adminisllalon, succCS50rs and assii!IJS ogain31 every person whomsoever lawfully claiming or to claim the same or lilY part thereof, cxupt u to the reservations and exceptions to convoyancc and watranty.

FILED AND RECORDED

OFFICIAL PUBLIC RECORDS 2013063557 ~E.x~

07/08/2013 02 :10PM

@ ~ ~ \uUs PLG CKASEBERG $40 .00 NANCY E. RISTER , COUNTY CLERK ct 0 { .;l '1-C- ~. WILLIAMSON COUNTY , TEXAS m~ ~,\Y lt&~v-

TABB

32

10/13/2014 9:09:50 PM

Amalia Rodriguez-Mendoza

District Clerk

Travis County

CAUSE NO.D-1-GN-14-002071 d-1-gn-14-002071

DAVID STERN § IN THE DISTRICT COURT Plaintiff, § §

§

v. § 250TH JUDICIAL DISTRICT §

PAMELAMEHL § Defendant § TRAVIS COUNTY, TEXAS

DEFE~DANT 'S MOTION FOR A NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Pamela Mehl ("Defendant") and files this Defendant's Motion for New Trial and asks this Court to grant a new trial in the interest of justice and fairness.

I. INTRODUCTION

1. Plaintiff David Stern is Defendant Pamela Mehl ex-husband. This suit was as a result of a post divorce misunderstanding and what Defendant believes a breach of Plaintiffs duties as outlined in a final divorce decree issued in Williamson County, Texas.

2. Defendant was properly served with service of process at her then attorney 's office, but as Defendant will attest and verify her attorney failed to answer this suit.

3. Plaintiff sued Defendant in this suit, served Defendant at her attorney's office but an answer was never filed . The divorce and all the matters and events in this cause occurred in Williamson County, Texas, however this suit was wrongfully filed in Travis County, Texas.

4. Because this is the last possible day, this filing , as filed is sufficient as a Motion for New Trial, however will be supp lemented tomorrow with additional detail, factual allegations by verified facts.

Defendant ·s Motionfor New Trial Page I of2

33

II. PRAYER

WHEREFORE, PREMISES CONSIDERED and for these reasons, Defendant prays the Court to grant this motion in favor of Defendant for a new trial so that justice may be done.

Respectfully submitted,

THE KELLY LEGAL GROUP, PLLC PO BOX 2125

Austin, Texas 78701

512-505-0053 tel

512-505-0054 fax

'kcll

By:

St e Bar No. 2404 749

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that on this the -~ day of October, 2014, a true and correct copy of this the Notice of Appeal, was served as stated below pursuant to the Texas Rules of Civil Procedure.

Brent A. Devere D Hand Delivery 1411 West Avenue, Suite 200 D CMRRR Austin, Texas 78701 D Regular U.S. Mail (512) 480-8170 Facsimile ~ Confirmed Facsimile Electronic Mail To: BDevere@ 14ll west.com ~ Electronic Mail

Def endant 's Motion for New Trial Page 2 of:Z