Robert Marx and Debbie Marx v. Fdp, Lp

Opinion

ACCEPTED 04-14-00641-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/11/2015 1:37:12 PM KEITH HOTTLE CLERK

NO. 04-14-00641-CV ______________________________________________________________

IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO, TEXAS ______________________________________________________________

ROBERT MARX AND DEBBIE MARX,

Appellants,

V.

FDP, LP,

Appellee. ______________________________________________________________

On Appeal From the 81st Judicial District Court of Wilson County, Texas, Trial Court Cause No. 12-03-0101-CVW ______________________________________________________________

BRIEF OF APPELLEE FDP, LP ______________________________________________________________

GILBERT T. ADAMS, III VINCENT L. MARABLE III gilbert@gta-law.com trippmarable@sbcglobal.net GILBERT ADAMS LAW OFFICES PAUL WEBB, P.C. 1855 Calder Avenue at Third 221 N. Houston P. O. Drawer 3688 Wharton, Texas 77488 Beaumont, Texas 77704 Telephone: (979) 532-5331 Telephone: (409) 835-3000 Telecopier: (979) 532-2902 Telecopier: (409) 832-6162

ATTORNEYS FOR APPELLEE FDP, LP TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF THE CASE (Tex. R. App. P. 38.1(d)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . 18

RECORD AND PARTY REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

BRIEF OF APPELLEE FDP, LP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

INTRODUCTION AND OVERVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. The Farm And Ranch Contract. . . . . . . . . . . . . . . . . . . . . . . . 22

B. The Marxes Breach The Farm And Ranch Contract.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. FDP Sues The Marxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

D. FDP And The Marxes Settle. . . . . . . . . . . . . . . . . . . . . . . . . . 27

E. The Marxes Breach The Mediated Settlement Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

F. The Arbitrator Rules And His Rulings Are Confirmed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2 G. The Trial Court Orders Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

A. Mediated Settlement Agreements.. . . . . . . . . . . . . . . . . . . . . 36

B. Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

C. Contract Formation And Unenforceability. . . . . . . . . . . . . . . . 39

D. Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

A. The Mediated Settlement Agreement Was Enforceable And The Trial Court Did Not Err In Granting FDP’s Motion For Final Summary Judgment (Responsive to Appellants’ Brief, pp. 15-19). . . . . . . . . . . . . . . . . . . . . . . . . . 42

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

II. The Marxes’ Arguments Reflect A Lack Of Understanding Of Texas Law Governing Contract Modification. . . . . . . . . . . . . . . . . . 48

III. The Trial Court Did Not Abuse Its Discretion In Awarding Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

IV. The Marxes’ Authorities Are Inapposite. . . . . . . . . . . . . 58

3 B. The Option That The Marxes Agreed To In The Mediated Settlement Agreement Was Supported By Consideration (Responsive to Appellants’ Brief, pp. 19-21). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

C. The Affirmative Defenses Alleged By The Marxes Did Not Bar The Trial Court From Granting Summary Judgment In Favor Of FDP (Responsive to Appellants’ Brief, p. 22). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Final Judgment signed August 11, 2014 (2 CR 532-556) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “1”

Farm and Ranch Contract (1 CR 16-31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “2”

Mediated Settlement Agreement (1 CR 182-188) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “3”

Order confirming Arbitration Award and incorporating Arbitrator’s Ruling (2 CR 353-363) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “4”

4 INDEX OF AUTHORITIES

CASES:

Advance Components, Inc. v. Goodstein, 608 SW.2d 737 (Tex. Civ. App.–Dallas 1980, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53, 54, 57, 60

Allen v. Am. Gen. Finance, Inc., 251 S.W.3d 676 (Tex. App.–San Antonio 2007, pet. granted, judgment vacated pursuant to settlement). . . . . . . . . . . . . . . . . . . . . . . . 63

America’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617 (Tex. App.–San Antonio 1996, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 45

Ayala v. Soto, No. 04-12-00860-CV, 2014 WL 1614281 (Tex. App.–San Antonio April 23, 2014, pet. filed) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

BACM 2001-1 San Felipe Road Ltd. Partnership v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137 (Tex. App.–Houston [14th Dist.] 2007, pet. denied). . . . . . . . . . . . . . . . . . 48

Birdwell v. Birdwell, 819 S.W.2d 223 (Tex. App.– Fort Worth 1991, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 71

Blaffer & Farish v. Gulf Pipe Line Co., 218 S.W. 89 (Tex. Civ. App.–Galveston 1919, no writ).. . . . . . . . . . . . . . . . . . . 67, 68

5 Bridgeman v. Jefferson Amusement Co., 207 S.W.2d 138 (Tex. Civ. App.–Beaumont 1948, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67

Brison v. Continental Oil Co., 48 S.W.2d 442 (Tex. Civ. App.–Fort Worth 1932, writ ref’d). . . . . . . . . . . . . . . . . . . . . . . 71

Brooks v. Excellence Mortg., Ltd., __ S.W.3d __, No. 04-13-00106, 2014 WL 2434583 (Tex. App.– San Antonio May 30, 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 79

Brownwood Ross Co. v. Maverick Cnty., 936 S.W.2d 42 (Tex. App.–San Antonio 1996, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Bryant v. Cady, 445 S.W.3d 815 (Tex. App.– Texarkana 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Chambers County v. TSP Dev., Ltd., 63 S.W.3d 835 (Tex. App.–Houston [14th Dist.] 2001, pet. denied). . . . . . . . . . . . 74, 75, 76

Corsicana Petroleum Co. v. Owens, 222 S.W. 154 (Tex. 1920).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Culbertson v. Brodsky, 788 S.W.2d 156 (Tex. App.–Fort Worth 1990, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

6 Doncaster v. Hernaiz, 161 S.W.3d 594 (Tex. App.–San Antonio 2005, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Eastman Gas Company, L.L.C. v. Goodrich Petroleum Company, L.L.C., __ S.W.3d __, No. 06-13-00128-CV, 2015 WL 170234 (Tex. App.–Texarkana Jan. 14, 2015, no pet. h.). . . . . . . . . . . . . . . . . . . . . . . . 40

Echols v. Bloom, 485 S.W.2d 798 (Tex. Civ. App.–Houston [14th Dist.] 1972, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . 65, 66

Enserch Corp. v. Rebich, 925 S.W.2d 75 (Tex. App.–Tyler 1996, writ dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Estate of Griffin v. Sumner, 604 S.W.2d 221 (Tex. Civ. App.–San Antonio 1980, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . 50

Fortner v. Fannin Bank in Windom, 634 S.W.2d 74 (Tex. App.–Austin 1982, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Foster v. Lessing, 346 S.W.2d 939 (Tex. Civ. App.–Waco 1961, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Garrod Investments, Inc. v. Schlegel, 139 S.W.3d 759 (Tex. App.–Corpus Christi 2004, no pet.). . . . . . . . . . . . . . . . . . . 58, 60

General Metal Fabricating Corporation Corp. v. Stergiou, 438 S.W.3d 737 (Tex. App.–Houston [1st Dist.] 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 46

7 Great Western Oil Co. v. Carpenter, 95 S.W. 57 (Tex. Civ. App. 1906, writ ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 72

Hammonds v. Cramer Financial Group, Inc., No. 04-96-00548-CV, 1997 WL 184734 (Tex. App.– San Antonio April 16, 1997, no writ) (not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Hastings v. Pichinson, 370 S.W.2d 1 (Tex. Civ. App.–San Antonio 1963, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Hernandez v. Telles, 663 S.W.2d 91 (Tex. App.– El Paso 1983, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Horner v. Bourland, 724 F.2d 1142 (5th Cir. 1984). . . . . . . . . . . . 55, 56, 57

Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851 (Tex. App.–Dallas 1983, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . 73

Incore Construction, Inc. v. Incore, Inc., No. 04-08-00785-CV, 2009 WL 4827071 (Tex. App.–San Antonio Dec. 16, 2009, pet. denied) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

In re Blankenship, 392 S.W.3d 249 (Tex. App.– San Antonio 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 78

In re Estate of Valdez, 406 S.W.3d 228 (Tex. App.–San Antonio 2013, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

8 J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Jim Maddox Properties, LLC v. WEM Equity Capital Investments, Ltd., 446 S.W.3d 126 (Tex. App.–Houston [1st Dist.] 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . 80

Johnson v. Farrow, 594 S.W.2d 655 (Mo. App. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Kress v. Soules, 261 S.W.2d 703 (Tex. 1953). . . . . . . . . . . . . . . . . . . . . 38

Lee v. Lee, 275 S.W.2d 574 (Tex. Civ. App.– Texarkana 1955, writ dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Lower Colorado River Authority v. Naumann, 638 S.W.2d 195 (Tex. App.–Houston [1st Dist.] 1982, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Lunsford Consulting Group, Inc. v. Crescent Real Estate Funding VIII, L.P., 77 S.W.3d 473 (Tex. App.–Houston [1st Dist.] 2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Martin v. Martin, 326 S.W.3d 741 (Tex. App.– Texarkana 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Martin v. Martin, Martin & Richards, Inc., 12 S.W.3d 120 (Tex. App.–Fort Worth 1999, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . 71

9 Mayhew & Isbell Lumber Co. v. Valley Wells Truck Growers’ Ass’n, 216 S.W. 225 (Tex. Civ. App.– San Antonio 1919, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

McCalla v. Baker’s Campground, Inc., 416 S.W.3d 416 (Tex. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 46

Mitchell v. Lawson, 444 S.W.2d 192 (Tex. Civ. App.–San Antonio 1969, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

National Oil & Pipe Line Co. v. Teel, 68 S.W. 979 (Tex. 1902). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Nolan v. Hunter, No. 04-13-00072-CV, 2013 WL 5431050 (Tex. App.–San Antonio Sept. 25, 2013, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Nolana Development Ass’n v. Corsi, 682 S.W.2d 246 (Tex. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Pace Corporation v. Jackson, 284 S.W.2d 340 (Tex. 1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69

Paciwest, Inc. v. Warner Alan Properties, LLC, 266 S.W.3d 559 (Tex. App.–Fort Worth 2008, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52

10 Pickard v. LJH Enterprises, No. 01-07-01105-CV, 2010 WL 1493105 (Tex. App.–Houston [1st Dist.] April 15, 2010, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Potcinske v. McDonald Property Investments, Ltd., 245 S.W.3d 526 (Tex. App.–Houston [1st Dist.] 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 58, 59, 60

Prairie Producing Co. v. Martens, 705 S.W.2d 257 (Tex. App.–Texarkana 1986, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . 64, 71

Reeves v. Lago Vista, Inc., 497 S.W.2d 950 (Tex. Civ. App.–Austin 1973, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . 64

Reserve Petroleum Co. v. Hodge, 213 S.W.2d 456 (Tex. 1948).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Rickey v. Houston Health Club, 863 S.W.2d 148 (Tex. App.–Texarkana 1993), writ denied n.r.e., 888 S.W.2d 812 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Rother v. Rother, No. 04-13-00899-CV, 2014 WL 4922898 (Tex. App.–San Antonio Oct. 1, 2014, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921 (Tex. App.–Tyler 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

11 Saenz v. Martinez, No. 04-07-00339-CV, 2008 WL 4809217 (Tex. App.–San Antonio Nov. 5, 2008, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 43, 63, 71

Saturn Capital Corp. v. Dorsey, No. 01-04-00626-CV, 2006 WL 1767602 (Tex. App.–Houston [1st Dist.] 2006, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Schlumberger Technology Corporation v. Swanson, 959 S.W.2d 171 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Scott v. Sebree, 986 S.W.2d 364 (Tex. App.– Austin 1999, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 49

Sifuentes v. Carrillo, 982 S.W.2d 500 (Tex. App.–San Antonio 1998, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Smith v. Thorne, No. 01-01-01241-CV, 2003 WL 21357297 (Tex. App.–Houston [1st Dist.] June 12, 2003, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 59

Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530 (Tex. App.–Dallas 2007, pet. denied).. . . . . . . . . . . . . . . . . . . . . 38, 39

Wilson v. Beaty, 211 S.W. 524 (Tex. Civ. App.– San Antonio 1919, writ ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

12 Wise v. Luke Development, LLC, No. 04-12-00477-CV, 2013 WL 4483381 (Tex. App.–San Antonio Aug. 21, 2013, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 81

Woodside v. Woodside, 154 S.W.3d 688 (Tex. App.–El Paso 2004, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Wright v. Sydow, 173 S.W.3d 534 (Tex. App.– Houston [14th Dist.] 2004, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 38

RULES AND STATUTES:

Tex. Civ. Prac. & Rem. Code Ann. § 154.002. . . . . . . . . . . . . . . . . . . . . . 38

Tex. Civ. Prac. & Rem. Code Ann. § 154.003. . . . . . . . . . . . . . . . . . . . . . 38

Tex. Civ. Prac. & Rem. Code Section 154.071(a). . . . . . . . . . . . . . . . . . . 37

Tex. Gov’t Code §§ 2007.001–.045. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Tex. R. App. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Tex. R. App. P. 9.4(i)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

13 Tex. R. App. P. 38.1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Tex. R. App. P. 38.2(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

OTHER SOURCES:

Joseph Perillo and Helen Bender, 2 Corbin on Contracts (rev. ed. 1995) Section 5.12. . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Restatement (Second) of Contracts, Section 80 (1981), comment a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

14 STATEMENT OF THE CASE (Tex. R. App. P. 38.1(d))

The Appellants’ Brief contains a section entitled “Statement of the Case”

on pages 1-2. This section of Appellants’ Brief does not comply with the

requirements of Texas Rule of Appellate Procedure 38.1(d). For such reason,

Appellee FDP, LP includes this Statement of the Case that complies with Tex.

R. App. P. 38.1(d).

NATURE OF THE CASE: This is a contractual dispute arising from a Farm and Ranch Contract executed by Appellants Robert and Debbie Marx, as Sellers and Appellee FDP, LP as Buyer, pursuant to which the Marxes agreed to sell to FDP, LP a 500 acre tract for $1,875,000.00 ($3,750.00 per acre) and to grant to FDP, LP a right of first refusal and option to purchase a 21 acre tract. (1 CR 16-30; Tab “2” to Appendix)

COURSE OF PROCEEDINGS: FDP, LP filed suit against the Marxes and their attorney on March 12, 2012, requesting specific performance and seeking actual and exemplary damages. (1 CR 1-32) On August 27, 2013, FDP, LP and the Marxes entered into a Mediated Settlement Agreement that contained the following terms:

a) FDP, LP agreed to purchase from the Marxes 421 acres for $5,000.00 per acre;

15 b) the Marxes retained a Homestead for no longer than 8 years;

c) the parties were to mutually agree on the Homestead, not to exceed 100 acres;

d) if the parties could not agree on what constituted the Homestead, the issue would be submitted to arbitration;

e) FDP, LP was granted an exclusive option to purchase the Homestead; and

f) all claims and causes of action between the parties, except for the undertakings in the Mediated Settlement Agreement were mutually released. (1 CR 182-188; Tab “3” to Appendix)

The Mediated Settlement Agreement was filed on September 3, 2013. (1 CR 182) On September 16, 2013, the Marxes objected to the Mediated Settlement Agreement. (1 CR 191-202)

TRIAL COURT’S DISPOSITION OF THE CASE: On October 23, 2013, the trial court ordered the parties back to mediation. (2 CR 322) The mediation was not successful. (2 CR 323) On November 14, 2013, the trial court ordered the parties to arbitrate the issue of designation of the 100 acre Homestead.

16 (2 CR 323) The arbitrator made his ruling on such issue by letter dated April 14, 2014. (2 CR 355-363; Tab “4” to Appendix) The trial court confirmed the arbitration award on May 12, 2014. (2 CR 353-363; Tab “4” to Appendix) On August 11, 2014, the trial court signed a Final Judgment in favor of FDP, LP awarding specific performance and attorneys’ fees. (2 CR 532-556; Tab “1” to Appendix)

17 STATEMENT REGARDING ORAL ARGUMENT

The final judgment in this case orders specific enforcement of a Farm

and Ranch Contract that was modified by a Mediated Settlement Agreement

and clarified by an arbitration ruling. (2 CR 532-556; Tab “1” to Appendix)

The standard of appellate review that governs the enforceability of the trial

court’s rulings and the challenges made on appeal by the Marxes are well-

established. Appellee FDP, LP does not believe that oral argument will assist

the Court in disposing of the issues in this appeal. However, should this

Court decide that oral argument would be beneficial to resolution of this case,

counsel for FDP, LP will gladly participate in such oral argument.

18 RECORD AND PARTY REFERENCES

Appellee FDP, LP is referred to in the Brief of Appellee as “FDP.”

Appellants Robert and Debbie Marx are referred to in the Brief of

Appellee collectively as the “Marxes.”

The original clerk’s record is two volumes and was filed in the Court of

Appeals on October 9, 2014. References in the Brief of Appellee to the two

volume original clerk’s record are shown as (“____ CR ____”) with the volume

and page number of the clerk’s record in parentheses.

There is no reporter’s record.

Final Judgment signed August 11, 2014 (2 CR 532-556) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “1”

Farm and Ranch Contract (1 CR 16-31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “2”

Mediated Settlement Agreement (1 CR 182-188) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “3”

Order confirming Arbitration Award and incorporating Arbitrator’s Ruling (2 CR 353-363) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “4”

20 TO THE HONORABLE FOURTH COURT OF APPEALS:

Appellee FDP, LP (“FDP”) files this its Brief of Appellee requesting that

this Court affirm the final judgment in favor of FDP which ordered specific

performance of an agreement to sell to FDP real property owned by the

Marxes.

INTRODUCTION AND OVERVIEW

The principal issue in this appeal is the propriety of the trial court’s final

judgment awarding specific performance in favor of FDP for the sale of real

property located in Wilson County, Texas, which sale is documented in a

January 27, 2012, Farm and Ranch Contract, that was modified by an August

27, 2013, Mediated Settlement Agreement and clarified by a May 12, 2014,

arbitration award. (2 CR 532-556; 1 CR 16-31; 1 CR 182-188; 2 CR 353-363;

Tabs “1” - “4” to Appendix)

The January 27, 2012, Farm and Ranch Contract obligated FDP to pay

to the Marxes a purchase price of $1,875,000.00 (500 acres at $3,750.00 per

acre), consisting of $300,000.00 cash and a promissory note for

$1,575,000.00, payable in monthly installments of $12,048.64 for 180 months,

at 4.5% interest. (1 CR 16, 17, 25) The August 27, 2013, Mediated

Settlement Agreement increased the purchase price payable by FDP to

21 $5000.00 per acre for 421 acres. (1 CR 182-183) The final judgment

ordering specific performance obligates FDP to pay to the Marxes a purchase

price of $2,086,675.00, consisting of $300,000.00 cash and a promissory note

for $1,786,675.00, payable in monthly installments of $13,667.94 for 180

months at 4.5% interest. (2 CR 533, 542-546)

The Marxes have repeatedly frustrated FDP’s attempts to close on the

sale of the real property, which has included multiple firings and hirings of new

lawyers. The trial court did not abuse its discretion in ordering the equitable

remedy of specific performance and requiring the Marxes to convey to FDP

the real property that the Marxes agreed to sell.

STATEMENT OF FACTS

Appellee FDP is dissatisfied with the Marxes’ Statement of Facts, pages

2-14 of Appellants’ Brief. For such reason, FDP presents this Statement of

Facts. See Tex. R. App. P. 38.2(a)(1)(B).

A. The Farm And Ranch Contract

On January 27, 2012, Appellants Robert Marx and Debbie Marx, as

Sellers, and Appellee FDP, as Buyer, executed a Farm and Ranch Contract.

(1 CR 16-31; Tab “2” to Appendix) The Marxes agreed to sell to FDP real

property located in Wilson County described as follows: “Approximately 500

22 acres to be surveyed out of a tract of land containing 521.79 acres further

described in exhibit ‘A.’” (1 CR 16, ¶ 2(A)) The Farm and Ranch Contract

further described the real property as the “Marx Ranch, Lavernia, Tx.” (1 CR

16, ¶ 2(A)) The Exhibit “A” to the Farm and Ranch Contract contains field

notes for a 326.047 acre tract and a 186.152 acre tract. (1 CR 27-30) The

Marxes agreed to furnish a new survey to FDP. (1 CR 17, ¶ 6(C)(3)) FDP

owned land on both sides of the Marx Ranch, the property the subject of the

January 27, 2012, Farm and Ranch Contract. (2 CR 448, ¶ 7)

The “Sales Price” provision of the Farm and Ranch Contract reads as

follows:

3. SALES PRICE: A. Cash portion of Sales Price payable by Buyer at closing. . . . . . . . . . . . $ 300,000.00 B. Sum of all financing described below (excluding any loan funding fee or mortgage insurance premium). . . . . . . . . . . . . . . . . . . . . . . . . . $1,575,000.00 C. Sales Price (Sum of A and B). . . . . . . . . . $1,875,000.00 D. The Sales Price [X] will [ ] will not be adjusted based on the survey required by Paragraph 6C. If the Sales Price is adjusted, the Sales Price will be calculated on the basis of $3,750.00 per acre. If the Sales Price is adjusted by more than 10%, either party may terminate this contract by providing written notice to the other party within 14 days after the terminating party receives the survey. If neither party terminates

23 this contract or if the variance is 10% or less, the adjustment will be made to the amount in [ ] 3A [ ] 3B [ ] proportionately to 3A and 3B.

(1 CR 16, ¶ 3)

The Farm and Ranch Contract stated that the financed portion of the

purchase price would be “Seller Financing,” based on a promissory note from

FDP to the Marxes of $1,575,000.00, secured by vendor’s and deed of trust

liens. (1 CR 17, ¶ 4(C)) The Seller Financing Addendum to the Farm and

Ranch Contract states that this promissory note will have an interest rate of

4.5% and will be payable to the Marxes in monthly installments of $12,048.64

beginning 30 days after the date of the promissory note and continuing

thereafter for 180 months. (1 CR 25, ¶ (C)(2))

The Farm and Ranch Contract contains the following “Special

Provisions”:

Buyer is a licensed real estate agent. Buyer and Seller agree to the following details to be worked out before closing: 1. Seller will survey out approximately 21 acres which will not [be] convey[ed] with this sale. 2. Seller will sign a first right of refusal and option agreement for the 21 acres which will allow buyer to purchase the property in the future. 3. Seller will retain an easement for access to the 21 acres. 4. Seller agrees to fence the 21 acres within 120 days after closing.

(1 CR 20, ¶ 11)

The Farm and Ranch Contract provides that FDP shall deposit

24 $10,000.00 earnest money upon execution of the contract. (1 CR 17, ¶ 5)

The Farm and Ranch Contract further provides that FDP shall pay to the

Marxes a $100.00 Option Fee within two days after the effective date of the

contract, which granted to FDP the unrestricted right to terminate the contract

within 15 days. (1 CR 23, ¶ 23) FDP paid the $10,000.00 earnest money and

$100.00 Option Fee by checks dated January 26, 2012. (1 CR 31)

On page 3 of Appellants’ Brief, the Marxes claim that “the contract was

prepared by appellee.” The Marxes cite to page 163 of the clerk’s record. (1

CR 163) Page 163 of the clerk’s record is a letter from the Marxes’ lawyer,

Diego A. Lopez, that was attached to Diego Lopez’s motion for summary

judgment. (1 CR 116-172) That letter was never adopted by the Marxes in

connection with their various motions and objections. Diego Lopez is not a

party to this appeal or to the final judgment and his motion for summary

judgment (that was never ruled on) is not at issue in this appeal.

B. The Marxes Breach The Farm And Ranch Contract

After the Marxes executed the Farm and Ranch Contract, they

contacted a new attorney, Diego A. Lopez, that led to the Marxes refusing to

close on the contract and sell the real property to FDP. (2 CR 447-448) On

Page 4 of the Appellants’ Brief, they assert the following:

25 Recognizing that the contract failed to describe the tract of land to be sold that complied with the statute of frauds, appellants repudiated the contract prior to the closing date.

This statement is not supported by any citation to the record and there is

nothing in the record that supports the above statement. In their August 4,

2014, response to FDP’s request for specific performance, the Marxes

judicially admitted that there was no legitimate statute of frauds defense in

this case, stating as follows: “The defect which exist[ed] prior to the

mediation/arbitration, that is, the lack of a valid description of the land to be

sold, has now been resolved ...” (2 CR 490) The Marxes do not assert a

statute of frauds argument on appeal. Texas has long recognized that where

a contract or deed initially fails to contain a legal description that satisfies the

statute of frauds, the parties may by their subsequent conduct or agreement

provide a legal description that complies with the statute of frauds. See

Reserve Petroleum Co. v. Hodge, 213 S.W.2d 456, 457-459 (Tex. 1948);

Foster v. Lessing, 346 S.W.2d 939, 942-43 (Tex. Civ. App.–Waco 1961, writ

ref’d n.r.e.); Hastings v. Pichinson, 370 S.W.2d 1, 4 (Tex. Civ. App.–San

Antonio 1963, no writ).

C. FDP Sues The Marxes

On March 12, 2012, FDP sued the Marxes and their attorney, Diego A.

26 Lopez. (1 CR 1-33) FDP sued the Marxes for specific performance and

damages. (1 CR 9-11) FDP also sued the Marxes for fraud and sought to

recover exemplary damages. (1 CR 11-12, 13) Debbie Marx answered on

April 5, 2012. (1 CR 33-34). She was represented by Diego Lopez. (1 CR

33) He was disqualified from representing the Marxes on June 21, 2012. (1

CR 96)

FDP filed its First Amended Original Petition on May 31, 2012. (1 CR

57-90) Robert Marx evaded service of process, requiring an order for

substituted service on him. (1 CR 91-95, 97) Robert Marx filed his original

answer on August 8, 2012. (1 CR 98) He was represented by attorney

Manuel Pelaez-Prada. (1 CR 99) Debbie Marx filed a second original answer

on September 6, 2012. (1 CR 101-102) She was also represented by

Pelaez-Prada. (1 CR 102)

On May 7, 2013, the Marxes moved to substitute new counsel. (1 CR

176-177) On May 8, 2013, the trial court signed an agreed order that

substituted attorneys Gilbert Vara, Jr. and Gerald D. McFarlen as attorneys

of record for the Marxes. (1 CR 178-179)

D. FDP And The Marxes Settle

The parties mediated on May 22, 2013, and August 27, 2013. (1 CR

27 180-181) Effective August 27, 2013, the parties executed a Mediated

Settlement Agreement. (1 CR 182-188; Tab “3” to Appendix) The Mediated

Settlement Agreement was filed with the district clerk on September 3, 2013.

(1 CR 182) It is signed by the Marxes and their attorneys. (1 CR 185, 187)

The parties agreed to execute and file an agreed order dismissing all claims

with prejudice and agreed that, except for the undertakings in the Mediated

Settlement Agreement, all claims that were asserted or could be asserted by

the parties against each other were mutually released. (1 CR 182, ¶ 3; 1 CR

183, ¶ 5)

Paragraph 4 of the Mediated Settlement Agreement provided as follows:

4. The parties agree as follows:

a. Plaintiffs purchase 421 more or less acres from Defendants for $5,000.00 per acre. Closing per existing EMK – October 1, 2013.

b. Defendants retain his “homestead property” for period of no longer than 8 years after Closing.

c. Homestead Property will be determined by the parties, based on home and fenced areas sufficient to maintain existing horse/cattle operation, but not to exceed 100 acres. If the parties cannot agree on what constitutes Homestead Property, the mediator will act as arbitrator and make the determination. Defendants’ use of the Homestead Property will not unreasonably restrict Plaintiffs’ use of the property being purchased.

28 d. Plaintiffs shall have the exclusive option to purchase the Homestead Property, at the above stated price, for a period of 120 days from the earlier of:

(i) written notice from the Defendant,

(ii) the death of the last surviving Defendant,

(iii) or the expiration of 8 years from closing.

(1 CR 182-183)

On page 6 of the Appellants’ Brief, they assert that “the mediated

settlement agreement also failed to meet the requirement of the statute of

frauds in that it failed to provide a description of the land to be sold by

appellants to appellee.” As previously discussed by FDP on page 26 herein,

the Marxes judicially admitted that there was no legitimate statute of frauds

defense in this case (2 CR 490) and they do not assert a statute of frauds

argument on appeal.

E. The Marxes Breach The Mediated Settlement Agreement

On September 12, 2013, the Marxes proceeded to change lawyers

again. (1 CR 189-190) The Marxes sought to discharge Gilbert Vara, Jr. and

to substitute attorney Kirk Dockery for him. Id. There was no order signed

authorizing the substitution of counsel for the Marxes until October 4, 2013.

(2 CR 292)

29 On the morning of September 16, 2013, FDP filed its “Motion to Enforce

Mediated Settlement Agreement.” (1 CR 203-228) Despite the fact that the

trial court had signed no order that allowed for substitution of counsel, the

Marxes’ new lawyer filed “Defendants’ Objections to Mediated Settlement

Agreement” in the late afternoon on September 16, 2013. (1 CR 191-202)

On September 30, 2013, FDP filed its Second Amended Original Petition

specifically pleading the execution of the Mediated Settlement Agreement.

(1 CR 230-271)

On October 1, 2013, the Marxes gave notice of hearing for their motion

for substitution for their most recent change of attorneys. (2 CR 291) On

October 4, 2013, the trial court signed an order allowing attorney Kirk Dockery

to substitute for attorneys Gilbert Vara, Jr. and Gerald D. McFarlen, who were

discharged. (2 CR 292) The Marxes claim on page 8 of the Appellants’ Brief

that they filed on October 14, 2013, a Supplemental Answer which “asserted

sixteen affirmative defenses.” This Supplemental Answer (2 CR 293-297) is

the subject of the Marxes’ Third Point of Error, Appellants’ Brief, p. 22, which

complains that the trial court erred in rendering final judgment in favor of FDP

because FDP did not file a no-evidence motion for summary judgment on

these affirmative defenses. As FDP explains on pages 77-81 herein, a

30 plaintiff moving for summary judgment is under no duty to negate affirmative

defenses.

On October 23, 2013, the trial court ordered the parties back to

mediation. (2 CR 322) On page 9 of the Appellants’ Brief, the Marxes

contend that “upon hearing of the defects in the [Mediated Settlement

Agreement], the trial court stopped the hearing and ordered the parties to

return to mediation to attempt to resolve those issues.” There is nothing in

the record to support this contention made by Appellants and they cite only

to 2 CR 322, which is the trial court’s October 23, 2013, handwritten order

which states simply that “the Court Orders the parties back to mediation

pursuant to the terms of the Settlement Agreement on November 14, 2013,

beginning at 9:00 a.m.” Paragraph 8 of the Mediated Settlement Agreement

provides that the parties agree to further mediation if disputes arise with

regard to interpretation and/or performance of the agreement, including the

form of the documents to be executed. (1 CR 183)

The Marxes also argue on page 9 of their brief, citing only to the

October 23, 2013, order (2 CR 322), that “the trial court failed and refused to

acknowledge that appellants’ consent to the MSA had been revoked.” As

FDP explains on page 37 herein, the withdrawal or revocation of consent to

31 a settlement agreement does not prevent enforcement of the settlement

agreement by the trial court.

On November 14, 2013, the trial court ordered the parties to proceed

with arbitration with respect to the designation of the “Homestead Property”

as described in Paragraph 4(c) of the Mediated Settlement Agreement. (2 CR

323) On page 10 of the Appellants’ Brief, the Marxes claim they “objected to

arbitration.” The Marxes filed no written objection to arbitration in the trial

court and have made no argument in the trial court or on appeal that they

could not be compelled to arbitrate under Paragraph 4(c) of the Mediated

Settlement Agreement.

F. The Arbitrator Rules And His Rulings Are Confirmed

The arbitrator issued his ruling on April 14, 2014, making findings for the

100 acre tract to be retained by the Marxes (subject to the purchase option

granted to FDP) and the 417.335 acres to be sold by the Marxes to FDP. (2

CR 355-356; Tab “4” to Appendix) The arbitrator’s ruling included a map and

metes and bounds descriptions of the 100 acre and 417.335 acre tracts. (2

CR 357-362) On May 8, 2014, FDP filed its “Motion and Application To

Confirm Arbitration Award.” (2 CR 324-349) The Marxes objected to “items

3 and 4” of the arbitrator’s ruling. (2 CR 351) Item 3 of the ruling stated that

32 all other terms and conditions of the Mediated Settlement Agreement remain

the same, except the closing date which will be at the earliest possible date.

(2 CR 355) Item 4 assessed costs of the arbitration. (2 CR 356)

On May 12, 2014, the trial court signed an order confirming the

arbitration award. (2 CR 353-363; Tab “4” to Appendix) The trial court

confirmed the arbitrator’s metes and bounds legal descriptions and awarded

arbitrator’s fees, surveyor’s fees, attorneys’ fees and expenses to FDP of

$1,800.00, $11,539.43, $17,202.50 and $486.00. (2 CR 353-354) The

Marxes did not move to vacate the arbitration award and have made no

appellate challenge to the arbitrator’s award or to the order confirming the

arbitrator’s award. The Marxes, on page 11 of the Appellants’ Brief, again

complain of the trial court’s action with respect to confirmation of the

arbitration ruling because they had revoked their consent to the settlement.

They have not challenged on appeal the May 12, 2014, order on this or any

other ground and Texas law permits enforcement of a settlement agreement

even where consent to settlement has been withdrawn or revoked. See Brief

of Appellee, p. 37, herein.

G. The Trial Court Orders Specific Performance

On July 9, 2014, FDP moved for a final summary judgment for specific

33 performance (2 CR 364-475), which the trial court granted by order and final

judgment signed on August 11, 2014. (2 CR 532-556; Tab “1” to Appendix)

As part of its summary judgment proof, FDP presented affidavits from the

managing member of the general and limited partners of FDP (Larry

Friesenhahn) and an Executive Vice President of Security State Bank, who

testified as follows:

a) FDP was willing to close the sale on an Owner Finance basis or on a Cash to Seller basis (2 CR 447, ¶ 4),

b) FDP had a certificate of deposit in the amount of $434,014.50 with Sun Trust Bank (2 CR 448, ¶ 5),

c) Security State Bank had lines of credit in the amount of $1,737,000.00 available for immediate advance to Larry Friesenhahn for personal or business uses, including FDP (2 CR 449, ¶ 3),

d) Security State Bank was interested in financing the purchase price of 501 acres for $5000.00 per acre (2 CR 449, ¶ 4).

The affidavit from the FDP principal, Mr. Friesenhahn, stated that FDP was

“ready, able and willing to purchase the subject property and close and

perform the Mediated Settlement Agreement.” (2 CR 447, ¶ 4)

The Marxes’ summary judgment response did not include any evidence

or argument in support of their affirmative defenses. (2 CR 486-516) The

Marxes asserted the following arguments in opposition to FDP’s request for

34 specific performance:

a) there was an ambiguity between the Farm and Ranch Contract and the Mediated Settlement Agreement (2 CR 487-494);

b) the option agreement was invalid because of lack of consideration (2 CR 494-495);

c) FDP, LP lacked standing to prosecute the suit (2 CR 495- 497); and

d) FDP, LP failed to act through its general partner (2 CR 497- 498).

On page 13 of the Appellants’ Brief, the Marxes complain that FDP “did

not file a no-evidence motion for summary judgment regarding the issues of

the many affirmative defenses asserted [by] appellants in their most recent

pleadings.” As FDP explains in responding to the Marxes’ Third Point of

Error, a plaintiff moving for summary judgment is not under any obligation to

negate affirmative defenses.” See Brief of Appellee, pp. 77-81, herein.

The Marxes complain on page 13 of their Appellants’ Brief of the

supplement to FDP’s motion for summary judgment that was filed on August

5, 2014. (2 CR 517-531) The supplement addressed arguments made by the

Marxes that FDP lacked standing and that FDP failed to act through its

general partner. (2 CR 519-520) The Marxes have not asserted these

arguments on appeal or raised any appellate error with respect to FDP’s

35 August 5, 2014, filing.

The trial court signed a final judgment in favor of FDP on August 11,

2014. (2 CR 532-556; Tab “1” to Appendix) The January 27, 2012, Farm and

Ranch Contract obligated FDP to pay to the Marxes a purchase price of

$1,875,000.00 (500 acres at $3,750.00 per acre), consisting of $300,000.00

cash and a promissory note for $1,575,000.00, payable in monthly

installments of $12,048.64 for 180 months, at 4.5% interest. (1 CR 16, 17,

25) The August 27, 2013, Mediated Settlement Agreement increased the

purchase price payable by FDP to $5000.00 per acre for 421 acres. (1 CR

182-183) The final judgment ordering specific performance obligates FDP to

pay to the Marxes a purchase price of $2,086,675.00, consisting of

$300,000.00 cash and a promissory note for $1,786,675.00, payable in

monthly installments of $13,667.94 for 180 months at 4.5% interest. (2 CR

553, 542-546)

STANDARD OF REVIEW

A. Mediated Settlement Agreements

The trial court, in granting FDP’s motion for summary judgment,

enforced the Mediated Settlement Agreement entered into by FDP and the

Marxes and awarded the remedy of specific performance. (2 CR 532-556;

36 Tab “1” to Appendix) In Saenz v. Martinez, No. 04-07-00339-CV, 2008 WL

4809217 at * 4 (Tex. App.–San Antonio Nov. 5, 2008, no pet.) (mem. op.), this

Court discussed the enforcement of a written settlement agreement where

one party withdraws its consent before judgment and held in that case the

“subsequent withdrawal of consent to the agreement, though undisputed,

does not raise a fact issue negating the enforceability of the agreement and

precluding summary judgment.”

A written settlement agreement may be enforced even if one party withdraws its consent before judgment is rendered on the agreement. Mantas v. Fifth Ct. of App., 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (per curiam) (citing Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995)). Where consent is lacking, a trial court may not render an agreed judgment on the settlement agreement, but the party seeking enforcement may properly pursue a separate breach of contract claim. Mantas, 925 S.W.2d at 658. This mode of enforcement is based on rule 11 of the Texas Rules of Civil Procedure, the requisites of which are necessary for entry of any judgment enforcing a settlement agreement. Padilla, 907 S.W.2d at 460 (citing Kennedy v. Hyde, 682 S.W.2d 525, 528 (Tex. 1984)).

Id. at * 3. See also Tex. Civ. Prac. & Rem. Code Section 154.071(a) (“If the

parties reach a settlement and execute a written agreement disposing of the

dispute, the agreement is enforceable in the same manner as any other

written contract.”).

Texas law strongly favors and encourages voluntary settlement and

37 orderly dispute resolution. Wright v. Sydow, 173 S.W.3d 534, 551 (Tex.

App.–Houston [14th Dist.] 2004, pet. denied), citing Schlumberger Technology

Corporation v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997). The El Paso

Court of Appeals has stated that “[t]he law has always favored the resolution

of controversies through compromise and settlement rather than through

litigation and it has always been the policy of the law to uphold and enforce

such contracts if they are fairly made and are not in contravention of some law

or public policy.” Hernandez v. Telles, 663 S.W.2d 91, 93 (Tex. App.–El Paso

1983, no writ).

This strong public policy in favor of voluntary settlements is reflected in

Section 154.002 of the Civil Practice and Remedies Code. Further, it is the

responsibility of all trial and appellate courts and their court administrators to

carry out the policy under Section 154.002. Tex. Civ. Prac. & Rem. Code

Ann. Section 154.003.

B. Specific Performance

Specific performance is an equitable remedy that may be awarded at

the trial court’s discretion upon a showing of breach of contract. Kress v.

Soules, 261 S.W.2d 703, 704 (Tex. 1953); Stafford v. S. Vanity Magazine,

Inc., 231 S.W.3d 530, 535 (Tex. App.–Dallas 2007, pet. denied). Specific

38 performance is not a separate cause of action, but rather it is an equitable

remedy used as a substitute for monetary damages when such damages

would not be adequate. Stafford, 231 S.W.3d at 535; Scott v. Sebree, 986

S.W.2d 364, 368 (Tex. App.–Austin 1999, pet. denied). “Because of the

unique nature of real property, breach of a contract to sell real property may

generally be enforced by specific performance.” Pickard v. LJH Enterprises,

No. 01-07-01105-CV, 2010 WL 1493105 at * 3 (Tex. App.–Houston [1st Dist.]

April 15, 2010, no pet.) (mem. op.), citing Rus-Ann Dev., Inc. v. ECGC, Inc.,

222 S.W.3d 921, 927 (Tex. App.–Tyler 2007, no pet.) and Scott v. Sebree,

986 S.W.2d at 369-70.

C. Contract Formation And Unenforceability

The principal argument made by the Marxes in their First Point of Error

is that the trial court erred in rendering final judgment in favor of FDP and

ordering specific performance because there is no enforceable agreement in

this case because there was “no meeting of the minds” between FDP and the

Marxes as to material and essential terms. See Appellants’ Brief, pp. 15-19.

As explained in more detail on pages 43-48 herein, the Marxes did not make

a “no meeting of the minds” argument in their summary judgment response.

(2 CR 486-516) The only argument made by the Marxes was their assertion

39 that the parties’ agreement could not be specifically enforced because there

was an ambiguity with respect to the financing provisions in the Farm and

Ranch Contract created by the increased purchase price agreed to in the

Mediated Settlement Agreement. (2 CR 487-494)

“The enforceability of a settlement agreement is a question of law.”

Eastman Gas Company, L.L.C. v. Goodrich Petroleum Company, L.L.C., __

S.W.3d __, No. 06-13-00128-CV, 2015 WL 170234 at * 3 (Tex.

App.–Texarkana Jan. 14, 2015, no pet. h.), citing McCalla v. Baker’s

Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013) and Martin v. Martin,

326 S.W.3d 741, 746 (Tex. App.–Texarkana 2010, pet. denied). The issue

of whether a settlement agreement fails for lack of essential terms is a

question of law. See General Metal Fabricating Corporation Corp. v.

Stergiou, 438 S.W.3d 737, 744 (Tex. App.–Houston [1st Dist.] 2014, no pet.)

(collecting cases). Whether an agreement fails for indefiniteness is a

question of law. Stergiou, 438 S.W.3d at 752, citing to America’s Favorite

Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.–San Antonio 1996,

writ denied).

D. Consideration

The Marxes’ Second Point of Error argues that the option to purchase

40 the Homestead Property granted to FDP by the Marxes is not supported by

consideration. See Appellants’ Brief, pp. 19-21. This Court has stated that

what constitutes consideration is a question of law, Brownwood Ross Co. v.

Maverick Cnty., 936 S.W.2d 42, 45 (Tex. App.–San Antonio 1996, writ

denied), and that the existence of a written contract presumes consideration

for its execution. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.–San

Antonio 2005, no pet.).

SUMMARY OF THE ARGUMENT

The Mediated Settlement Agreement, which modified the Farm and

Ranch Contract, is an enforceable contract and does not fail for lack of mutual

assent, indefiniteness or failure of a meeting of the minds. The “no meeting

of the minds” argument made by the Marxes in their First Point of Error on

pages 15-19 of their Appellants’ Brief was not made in the trial court. The trial

court properly exercised its discretion in enforcing the Mediated Settlement

Agreement and awarding the equitable remedy of specific performance. The

trial court was authorized under Texas law to enforce the Mediated Settlement

Agreement even where the Marxes withdrew their consent to the settlement.

In the Marxes’ Second Point of Error, Appellants’ Brief, pp. 19-21, they

argue that the option to purchase the Homestead Property is not supported

41 by any consideration. This argument fails as a matter of law. Where a

contract that includes an option is supported by a sufficient consideration, the

option is valid and enforceable, even if there is no independent or specific

consideration for the option and even if there is no independent or specific

consideration recited for the option.

The Marxes’ Third Point of Error, Appellants’ Brief, p. 22, claims that

they asserted various affirmative defenses and that FDP failed to move for

summary judgment on such affirmative defenses. The Marxes’ Third Point of

Error is inadequately briefed and therefore waived. Further, their argument

is flatly contrary to Texas law. FDP had no obligation to move for summary

judgment on the Marxes’ affirmative defenses. The Marxes had the obligation

to present evidence to support their defenses and failed to present any such

evidence.

ARGUMENT

A. The Mediated Settlement Agreement Was Enforceable And The Trial Court Did Not Err In Granting FDP’s Motion For Final Summary Judgment (Responsive to Appellants’ Brief, pp. 15-19)

I. Introduction

The Marxes initially argue that they withdrew their consent to the

Mediated Settlement Agreement. See Appellants’ Brief, pp. 15-16. The

42 withdrawal of consent to settlement by the Marxes did not prohibit the trial

court from enforcing the settlement for the reasons stated by this Court in

Saenz v. Martinez, 2008 WL 4809217 at * 3-4, quoted on page 37 of this

Brief.

The Marxes next argue that the Mediated Settlement Agreement is

unenforceable or invalid because of lack of mutual assent, indefiniteness or

no meeting of the minds. See Appellants’ Brief, pp. 18-19 (“Because the

terms of the Seller Financing Addendum to the Farm and Ranch Contract

were not amended by the mediated settlement agreement, there has been no

meeting of the minds between appellants and appellee as to those material

and essential terms. The mediated settlement agreement is therefore not a

complete contract and is rendered unenforceable.”).

The Marxes, on pages 15-16 of the Appellants’ Brief, cite to their

October 14, 2013, “Supplemental Answer” (2 CR 293-297) for this “no

meeting of the minds” argument. But, the Marxes did not make this argument

in their summary judgment response. (2 CR 486-516) Instead, the Marxes

argued that there was an ambiguity with respect to the financing provisions

created by the Mediated Settlement Agreement. (2 CR 487-494) At page 3

of their summary judgment response, the Marxes asserted that there was a

43 “contradiction” between the new sales price in the Mediated Settlement

Agreement and owner financing provisions of the Farm and Ranch Contract.

(2 CR 488) On pages 5 and 6 of their summary judgment response, they

further discuss the “contradiction,” stating that paragraph 4a of the Mediated

Settlement Agreement “creates the patent ambiguity.” (2 CR 490) They

continue on page 6 of their summary judgment response discussing “the

patent ambiguity” (2 CR 491), on page 7 “this ambiguity” and “patent

ambiguity” (2 CR 492), and on page 8 “the obvious ambiguity” and “patent

ambiguity.” (2 CR 493)

The Marxes’ Appellants’ Brief repeats these arguments of contractual

ambiguity in the Statement of Facts, even though the Marxes do not make the

ambiguity argument in their First Point of Error.

The mediated settlement agreement also created an ambiguity between it and the Farm and Ranch Contract.

###

[T]he mediated settlement agreement created an ambiguity as to the manner in which the sale price was to be paid and the terms of any seller-financing.

###

Appellants objected to arbitration because they recognized that a settlement pursuant to the MSA was unlikely due to the ambiguities therein ...

44 See Appellants’ Brief, pp. 6-7, 9, 10.

There is a difference under Texas law between contractual ambiguity

and contractual indefiniteness. See Sifuentes v. Carrillo, 982 S.W.2d 500,

504 (Tex. App.–San Antonio 1998, pet. denied), citing America’s Favorite

Chicken Co. v. Samaras, 929 S.W.2d at 628 (“There is a significant legal

difference between ambiguity and indefiniteness.”). A contract containing an

ambiguity is not unenforceable. Ambiguity results when the intention of the

parties is expressed in language susceptible of more than one meaning. J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Interpreting an

ambiguous contract is a factual issue. Id. In contrast, an agreement that is

indefinite because it fails to contain all material and essential terms is

unenforceable. See America’s Favorite Chicken Co. v. Samaras, 929 S.W.2d

at 622. In the trial court, the Marxes argued ambiguity, not indefiniteness. (2

CR 487-494) This Court cannot reverse a summary judgment based on an

argument made on appeal that the Marxes did not make in their summary

judgment response. See In re Blakenship, 392 S.W.3d 249, 255 (Tex.

App.–San Antonio, 2012, no pet.).

Under Texas law, a modified contract creates a new contract that

includes the new, modified provisions and the unchanged old provisions.

45 Even if there was a contradiction or ambiguity with respect to the financing

terms of the Farm and Ranch Contract caused by the increased purchase

price of the Mediated Settlement Agreement, the parties’ agreement was still

enforceable and FDP was entitled to purchase the property for $2,086,675.00

and the trial court had the right to order specific performance that was not in

strict compliance with the parties’ agreement.

Any conflict between the financing terms in the Farm and Ranch

Contract and the language in the Mediated Settlement Agreement creates, at

best, a contractual ambiguity rather than contractual indefiniteness.

Ambiguous and unambiguous contracts are both enforceable under Texas

law. A contract with an ambiguity is not unenforceable because of

indefiniteness. A contract is not indefinite if the contract terms are reasonably

certain to the extent they provide a basis for determining the existence of a

breach and for giving an appropriate remedy. McCalla v. Baker’s

Campground, Inc., 416 S.W.3d at 418 (“If a court was trying to enforce the

settlement agreement, it could find all the terms necessary for its

enforcement.”); Stergiou, 438 S.W.3d at 751. The Marxes do not and cannot

contend that the Mediated Settlement Agreement is not reasonably certain or

indefinite with respect to the obligation of FDP to pay $2,086,675.00 in return

46 for the 421 acres and the option on the Homestead Property.

The Marxes and FDP executed written agreements that contained

essential terms; the Marxes just want out of the agreements and the bargains

that were struck. The Marxes make no argument that they were harmed or

injured by the trial court’s final judgment which ordered that they were to

receive $1,619.30 more per month from FDP under the Mediated Settlement

Agreement which modified the Farm and Ranch Contract. They simply

contend, erroneously, that the Mediated Settlement Agreement is

unenforceable. There is nothing “indefinite” about the agreements that

preclude enforcement.

At most, the Marxes’ arguments implicate the doctrine of ambiguity,

which is an argument that they made in their summary judgment response (2

CR 487-494), but have abandoned on appeal. See Appellants’ Brief, pp. 15-

19. An executed contract that contains an ambiguity is not unenforceable

because of the ambiguity. The Marxes do not make the ambiguity argument

on appeal because they seek to invalidate the agreements in their entirety

based on indefiniteness. Under no circumstances do they want any

enforcement of the agreements. The Marxes’ “no meeting of the minds”

argument fails under Texas law. As this is the only argument made on appeal

47 – which they did not make in the trial court – the overruling of this argument

requires the affirmance of the trial court’s final judgment.

II. The Marxes’ Arguments Reflect A Lack Of Understanding Of Texas Law Governing Contract Modification

“Modification of a contract is some change in an original agreement

which introduces a new or different element into the details of the contract but

leaves its general purpose and effect undisturbed.” See Enserch Corp. v.

Rebich, 925 S.W.2d 75, 83 (Tex. App.–Tyler 1996, writ dism’d). In BACM

2001-1 San Felipe Road Ltd. Partnership v. Trafalgar Holdings I, Ltd., 218

S.W.3d 137, 145-146 (Tex. App.–Houston [14th Dist.] 2007, pet. denied), the

Court of Appeals explained as follows:

But, a modification to a contract need not restate all the essential terms of the original agreement. A modification alters only those terms of the original agreement to which it refers, leaving intact those unmentioned portions of the original agreement that are not inconsistent with the modification. See Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547-48 (Tex. App.–Houston [1st Dist.] 1994, no writ) (“A modification to a contract creates a new contract that includes the new, modified provisions and the unchanged old provisions.”) (emphasis added).

Under Texas law, conflicts between the provisions of an original contract

and a modification do not make the modified agreement “unenforceable.”

There are specific rules for such situations. In Saturn Capital Corp. v. Dorsey,

No. 01-04-00626-CV, 2006 WL 1767602 at * 4 (Tex. App.–Houston [1st Dist.]

48 2006, pet. denied), the Court of Appeals discussed the issue as follows:

That is, when the second contract does not state whether or to what extent it supersedes the parties’ first contract, and when some provision of the two contracts conflicts, the conflicting provision of the later contract prevails. In re Palm Harbor Homes, Inc., 129 S.W.3d at 643; Courage Co., L.L.C. v. Chemshare Corp., 93 S.W.3d 323, 333 (Tex. App.–Houston [14th Dist.] 2002, no pet.). The remainder of the earlier contract not in conflict with the later one may still be enforced. Courage Co., L.L.C., 93 S.W.3d at 333. These rules also apply when, as here, one of the contracts is a promissory note.

The Marxes cite no authority, Texas or otherwise, which holds that a

court may find an agreement unenforceable because, in modifying the

agreement, a conflict with the language of the original contract resulted. At

most, that would create an ambiguity, which argument the Marxes do not

make on appeal. See Appellants’ Brief, pp. 15-19. The real issues in this

case are contract interpretation and contract enforcement, not contract

formation. The “no meeting of the minds” arguments made by the Marxes do

not apply to the written, executed agreements in this case.

III. The Trial Court Did Not Abuse Its Discretion In Awarding Specific Performance

Specific performance is more readily available as a remedy for the sale

of real estate than for the sale of personal property. See Scott v. Sebree, 986

S.W.2d at 369-370. Damages are generally believed to be inadequate in

49 connection with real property. Id. at 370. Specific performance is commonly

granted where a valid contract to purchase real property is breached by the

seller. Id.; see also Estate of Griffin v. Sumner, 604 S.W.2d 221, 225 (Tex.

Civ. App.–San Antonio 1980, writ ref’d n.r.e.).

The trial court ordered specific performance of the sale of the real

property by the Marxes to FDP because the Marxes breached the Mediated

Settlement Agreement. (2 CR 532-556) The Marxes do not argue on appeal

that they did not breach the Mediated Settlement Agreement. Their sole

argument is the alleged “unenforceability” of the agreement because of

“indefiniteness.”

To the extent that the Marxes believe that the final judgment awarding

specific performance is not in compliance with or consistent with the parties’

agreement, they have not made such argument on appeal. They argue only

unenforceability based on no meeting of the minds. Texas law affords

discretion to the trial court in ordering the remedy of specific performance,

even if the award of specific performance is not in strict compliance with the

underlying agreement.

In Estate of Griffin v. Sumner, 604 S.W.2d at 225, this Court discussed

its earlier decision in Wilson v. Beaty as follows:

50 In Wilson v. Beaty, 211 S.W. 524 (Tex. Civ. App.–San Antonio 1919, writ ref’d), a case involving specific performance of a contract for the sale of land, this court said:

Where a contract is in writing, is certain in its terms, is fair and just in its provisions and capable of being enforced with fairness to both parties, it is a matter for enforcement in a court of equity ...

Absolute and positive certainty as to the terms of the contract is not required, but there must be reasonable certainty as to the subject-matter, the stipulations, the purposes, and the circumstances under which the contract was made ...

The contract is certain and definite in its terms if it leaves no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity is called upon to have performed.

211 S.W. at 526-527.

In Paciwest, Inc. v. Warner Alan Properties, LLC, 266 S.W.3d 559, 570

(Tex. App.–Fort Worth 2008, pet. denied), the award of specific performance

was not in literal compliance with the parties’ agreement, because the buyer

could not obtain financing and chose to pay the full purchase price in cash.

The Court of Appeals held that the award of specific performance was proper

in such circumstances and noted that the analysis of materiality of financing

terms for purposes of contract enforcement is different from the analysis for

purposes of contract formation.

51 Further, even if the writings between the parties are not sufficient to show an agreement by Paciwest to an all-cash transaction, provisions in an earnest money contract that provide for termination of a contract if the buyer is unable to obtain financing are solely for the benefit of the buyer and may be waived by the buyer. See R. Conrad Moore & Assocs., Inc. v. Lerma, 946 S.W.2d 90, 94-95 (Tex. App.–El Paso 1997, writ denied); Renouf v. Martini, 577 S.W.2d 803, 803-04 (Tex. Civ. App.–Houston [14th Dist.] 1979, no writ). Thus, even a buyer who has not strictly complied with the financing terms in an earnest money contract, but who is nevertheless able to meet its obligations to close a transaction, may enforce specific performance against a seller who thereafter refuses to close the transaction on the ground that the buyer did not obtain the financing on the express terms provided for in the contract. See Advance Components, Inc. v. Goodstein, 608 S.W.2d 737, 739-40 (Tex. Civ. App.–Dallas 1980, writ ref’d n.r.e.); cf. Potcinske v. McDonald Prop. Invs., 245 S.W.3d 526, 530-31 (Tex. App.–Houston [1st Dist.] 2007, no pet.) (distinguishing Advance Components and holding that analysis of materiality of financing provisions for purposes of contract enforcement differs from analysis for purposes of contract formation).1

Id. at 570.

In Advance Components, Inc. v. Goodstein, 608 SW.2d 737 (Tex. Civ.

App.–Dallas 1980, writ ref’d n.r.e.), cited in the Paciwest decision, Advance

Components leased from Goodstein real property with an option to purchase.

Id. at 738. The purchase option contained a financing provision that required

Advance Components to assume the unpaid principal balance on a

1 Potcinske is a case relied upon by the Marxes. See Appellants’ Brief, p. 17. FDP discusses the Potcinske decision on pages 58-60 herein.

52 $165,000.00 promissory note. Id. Advance Components was unable to

assume the note, and instead, arranged for third-party financing for the entire

purchase price. Id. at 739. Goodstein refused to close and the trial court

denied Advance Components’s request for specific performance. Id. In

reversing the trial court’s denial of specific performance, the Dallas Court of

Appeals first explained as follows:

In the early case of Farris v. Bennett’s Executors, 26 Tex. 568 (1863), our Supreme Court stated:

(I)t is the general rule, that, to entitle a party to specific performance, he must show that he has been in no default in not having performed the agreement, and that he has taken all proper steps towards the performance, on his part; yet, on the other hand, though there has not been a strict legal compliance with the terms of the contract, yet, if the noncompliance does not go to the essence of the contract, relief will be granted. Id. at 572.

The rule of the Farris case has been followed by our Supreme Court for many years. Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208 (1891); McMillan v. Smith, 363 S.W.2d 437 (Tex. 1962). In the present case there has not been a strict compliance with the terms of the contract by the plaintiff in that plaintiff arranged to pay off the outstanding note rather than to assume it.

Id. at 739.

The Court of Appeals then explained that the departure from the

contract will not prevent specific enforcement if it is not a material breach and

53 identified the factors for determining if there was a material breach. Id. at

739-740. After analyzing these factors, the Court concluded as follows:

Of the circumstances listed in this section, only the first three are applicable under the facts and arguments in this case. Applying those three “influential circumstances,” we hold that plaintiff’s breach was not so material as to defeat its action for specific performance. Under a decree of specific performance, defendant will receive the substantial benefit which he could have reasonably anticipated, the agreed price of his equity and complete protection against his liability on the outstanding note, and may be compensated by plaintiff for any damages he suffers as a result of its minor breach.

Id. at 740. In the present case, the Marxes will similarly receive the

substantial benefits they could have reasonably anticipated from the

agreements they executed.

The Dallas Court of Appeals rejected Goodstein’s argument that specific

performance was improper because there had not been literal compliance

with the agreement.

Defendant argues that enforcing the contract without the exact financing provisions specified therein will result in adverse tax consequences to him and will deprive him of his rights as a lienholder of the property. If that is so, he may be compensated in damages for those consequences of plaintiff’s breach. With the exception of literal compliance with the financing provisions, plaintiff has fully performed under the contract. It attempted to comply, but was unable to do so without obtaining a guaranty by third persons. It then tendered the full purchase price in cash. On these facts, refusal of a decree of specific performance effectuates an unjust penalty or forfeiture and therefore, the

54 judgment of the trial court is reversed, and since no motion for summary judgment was filed by plaintiff, the case is remanded for further proceedings. If defendant pleads and proves any damages because of plaintiff’s breach, the trial court may enter a decree of specific performance that is conditioned on payment to defendant of reasonable compensation in money. Farris v. Bennett’s Executors, supra, at 575; see Restatement of the Law of Contracts, s 375(3).

Id. The Marxes have never claimed they have been damaged by the specific

performance ordered by the trial court. (2 CR 486-516)

In Horner v. Bourland, 724 F.2d 1142, 1143-1144 (5th Cir. 1984)

(applying Texas law), Horner entered into a contract to purchase a mobile

home park from the Bourlands. The purchase price was $570,700.00 that

was to be paid by refinancing a loan and deed of trust in favor of FHA in the

amount of $455,700.00 and a promissory note in the amount of $115,000

from Horner, secured by a second deed of trust. Id. at 1144. The FHA loan

could not be refinanced and the FHA would not permit a second lien. Id.

Horner agreed to pay the entire amount in cash. Id. The Bourlands

would not agree. The federal district court denied Horner’s request for

specific performance, finding that “the parties had entered into the contract

under the mutually mistaken belief that the Bourlands’ FHA loan could be

recast, ... that because enforcement of the contract as written was impossible,

its enforcement would require the court to rewrite the contract for the parties,

55 ... Horner's proposed escrow instructions materially altered the terms of the

contract and constituted counter offers; and that Horner made no written cash

offer for the property.” Id.

The Fifth Circuit Court of Appeals reversed, first discussing the standard

of discretion for granting specific performance.

The parties correctly point out that in general, a decree for specific performance is not a matter of right, but is a matter resting in the court’s judicial discretion. See, e.g., Kress v. Soules, 152 Tex. 595, 261 S.W.2d 703, 704 (1953); Nash v. Conatser, 410 S.W.2d 512, 519 (Tex. Civ. App.–Dallas 1966, no writ). Nonetheless, in the proper circumstances the standard set forth by the Texas Supreme Court in Bennett v. Copeland, 149 Tex. 474, 235 S.W.2d 605 (1951), is applicable:

“Mere hardship is not sufficient ground for denial of the right to specific performance of a contract otherwise subject to enforcement. ... Especially where it was fairly and voluntarily assumed as part of a contract. ... In this respect a contract for the sale of land will be enforced as a matter of right, regardless of its wisdom or folly, if fairly and understandingly made. ... [C]ourts cannot arbitrarily refuse specific performance of a contract, because they deem it unwise, or because subsequent events disclose that it will result in a loss to defendant; but to justify the refusal of this relief it must appear that the defendant had been misled and overreached to such an extent that the contract is unconscionable.”

235 S.W.2d at 609 (quoting Annot., 65 A.L.R. 1st 75); accord Kress v. Soules, supra (determination must be according to facts of individual case; grant of specific performance must not operate inequitably on defendant). In a case involving a contract for the

56 sale of real estate that is otherwise subject to enforcement and where justification on the ground of inequity is lacking, it is an abuse of the trial court’s discretion to refuse specific performance.

Id. at 1144-1145.

The Court of Appeals then discussed several Texas cases, including the

Advance Components decision, finding them dispositive of the request for

specific performance. The Fifth Circuit affirmed that specific performance

does not require strict compliance with the agreement. Id. at 1146-1147.

Advance Components is consistent, moreover, with other Texas cases finding that a cash offer in lieu of contractually specified financing provisions constitutes substantial compliance with the contract. In Renouf v. Martini, 577 S.W.2d 803 (Tex. Civ. App.–Houston 1979, no writ), the court granted specific performance of a contract for the sale of real estate where the buyer was unable to secure the financing pursuant to the terms provided for in the contract and instead arranged full cash financing. Accord Smith v. Nash, 571 S.W.2d 372 (Tex. Civ. App.–Texarkana 1978, no writ).

We think that these cases are dispositive of the instant appeal. Applying the Advance Components analysis to the case before us, we think it is clear that no inequity would result from a grant of specific performance. A cash payment would bestow upon the Bourlands substantially the equivalent benefit – the assumption, in either the legal or common usage of the term, of the FHA loan coupled with a return of equity – for which they contracted. Moreover, any adverse tax consequences incurred by the defendants as a result of a cash payment may be compensated, upon the payment of which the decree should be conditioned. See Advance Components, supra.

Id. at 1146.

57 This is not a contractual indefiniteness or “no meeting of the minds”

case. At best, the Marxes claim there is a contradiction or ambiguity with

respect to the owner-financing provisions of the Farm and Ranch Contract

caused by the increased price of the Mediated Settlement Agreement.

Assuming that this Court were to find that the Marxes have preserved the

ambiguity argument on appeal and reverse on such basis, FDP would still be

afforded the opportunity to purchase under the executed documents based

on payment of all cash by FDP or third-party financing resulting in all cash

being paid to the Marxes by FDP and its lender.

IV. The Marxes’ Authorities Are Inapposite

The Marxes rely on three cases in support of their argument that there

was no mutual assent or no meeting of the minds between FDP and the

Marxes. The three cases are cited on page 17 of Appellants’ Brief: Smith v.

Thorne, No. 01-01-01241-CV, 2003 WL 21357297 (Tex. App.–Houston [1st

Dist.] June 12, 2003, no pet.) (mem. op.), Potcinske v. McDonald Property

Investments, Ltd., 245 S.W.3d 526 (Tex. App.–Houston [1st Dist.] 2007, no

pet.), and Garrod Investments, Inc. v. Schlegel, 139 S.W.3d 759 (Tex.

App.–Corpus Christi 2004, no pet.). None of those cases are factually similar

to the facts in this appeal.

58 Smith is a contract formation case. In Smith, the Court of Appeals

explained that the parties used an inapplicable earnest-money-contract form

and never agreed upon a method of financing or on the issue of financing.

In this case, there was evidence that Smith’s selection of an inapplicable earnest-money-contract form created confusion and misunderstanding between the parties. Smith’s explanation that the “all-cash” option referred only to the fact that Smith would receive the full amount of the sales price at closing was intended to reassure appellees regarding questionable provisions in the form used. The trial testimony clearly established that the sale of the property was to be neither “all-cash” nor “owner-financed.” Therefore, there is both legally and factually sufficient evidence to support the trial court’s finding of fact number three.

Regarding findings of fact numbers one and six, the contract, on its face, appears to show two different methods of payment: paragraph 3.B indicates that a note is involved and is described within the contract, and paragraph 4.A indicates that the transaction will be an “all cash” sale. In addition, Smith and Corbin both testified that Smith was aware of appellees’ attempts to secure third-party financing and spoke with the mortgage company on at least two occasions. This evidence is legally and factually sufficient to support the trial court’s findings that the parties never agreed upon a method of financing (number one) and that there was no meeting of the minds on the issue of financing (number six). We therefore uphold the court’s conclusion of law that the parties did not reach agreement on a material term of the contract.

2003 WL 21357297 at * 3.

Potcinske is an “offer/counter-offer” case where there was never a

signed contract and the buyer admitted that there was no meeting of the

59 minds regarding financing. 245 S.W.3d at 530. Relevant to this appeal, there

is an important discussion in Potcinske of the decision in Advance

Components, Inc. v. Goldstein and the fact that different considerations come

into play when determining the materiality of a finance provision in the context

of contract enforcement versus contract formation. Id. at 531. (“The court in

Advance Components determined whether the buyer’s failure to perform

agreed upon financing terms was a material breach of an already formed

contract. Here, we must determine whether a financing term is a material

term in the context of contract formation. We agree with McDonald Property

that different considerations come into play when determining the materiality

of a finance provision in each context.”)

Garrod Investments is actually a statute of frauds case where the

parties never signed an agreement enforceable under the statute because of

offers and unaccepted counter-offers. 139 S.W.3d at 765.

Any material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party for a contract to exist. ... Where “negotiations” are in writing, as in this case, the question of whether an offer was unconditionally accepted is primarily a question of law for the court. ... Based on the Schlegels’ summary judgment evidence and Garrod’s appellate brief, we conclude that on November 17, Garrod materially altered Myrna Schlegel’s offer and thus made a counteroffer.

60 The Schlegels’ evidence shows that they never signed the standard form contract after changes were made to it. We conclude that the document therefore has the same status as if Myrna Schlegel had never signed it. ... As a matter of law, the standard form contract does not satisfy the Statute of Frauds and cannot be enforced.

Id.

None of these contract formation cases support the Marxes’ argument

that the Mediated Settlement Agreement is unenforceable because of the

failure of a meeting of the minds. The Farm and Ranch Contract is a fully

integrated, executed written agreement containing all material and essential

terms. The Mediated Settlement Agreement is a valid, binding and

enforceable written agreement. Any ambiguity or contradiction between the

terms of the Farm and Ranch Contract and the Mediated Settlement

Agreement does not result in contractual indefiniteness or unenforceability.

Any complaints that the Marxes could have with the award of specific

enforcement are contract enforcement and interpretation issues that they

have not raised on appeal. The Marxes’ First Point of Error must be

overruled.

B. The Option That The Marxes Agreed To In The Mediated Settlement Agreement Was Supported By Consideration (Responsive to Appellants’ Brief, pp. 19-21)

The principal argument made by the Marxes in their Second Point of

61 Error is that the option for the Homestead Property is unenforceable because

it is not supported by any consideration. As explained below, the option is

supported by consideration and is valid and enforceable.

Multiple Texas cases have cited this Court for the principles that what

constitutes consideration is a question of law and the existence of a written

contract presumes consideration for its execution.

What constitutes consideration is a question of law, Brownwood Ross Co. v. Maverick Cnty., 936 S.W.2d 42, 45 (Tex. App.–San Antonio 1996, writ denied), and the existence of a written contract presumes consideration for its execution. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.–San Antonio 2005, no pet.).

See Bryant v. Cady, 445 S.W.3d 815, 819 (Tex. App.–Texarkana 2014, no

pet.); Ayala v. Soto, No. 04-12-00860-CV, 2014 WL 1614281 at * 4 (Tex.

App.–San Antonio April 23, 2014, pet. filed) (mem. op.); see also Nolana

Development Ass’n v. Corsi, 682 S.W.2d 246, 250 (Tex. 1984) (consideration

presumed even if not apparent).

The Marxes do not dispute that they agreed in the Mediated Settlement

Agreement to grant FDP an option to purchase the Homestead Property. (1

CR 182-183) The Marxes do not contend that the exhibits attached to the trial

court’s final judgment awarding specific performance fail to accurately

document the terms of the option they agreed to. (2 CR 456) See Appellants’

62 Brief, pp. 19-20 (discussing Warranty Deed with Vendor’s Lien attached as

Exhibit “A” to final judgment that contains option terms).

The Farm and Ranch Contract was undisputedly supported by

consideration and FDP deposited the earnest money required by that

contract. (1 CR 16, 17, 31) The consideration recited in the Farm and Ranch

Contract and further reflected by the Mediated Settlement Agreement

constitute sufficient consideration for the option as a matter of law. There is

no requirement under Texas law for any independent consideration for the

option.

Numerous Texas courts, including this one, treatises and commentators

consistently state that a single consideration is sufficient to support multiple

promises bargained for in an agreement and that consideration for the

principal agreement is sufficient to support other promises that are subsidiary

or collateral to the principal agreement. See Mitchell v. Lawson, 444 S.W.2d

192, 196 (Tex. Civ. App.–San Antonio 1969, no writ); Saenz v. Martinez, 2008

WL 4809217 at * 4; Allen v. Am. Gen. Finance, Inc., 251 S.W.3d 676, 688

(Tex. App.–San Antonio 2007, pet. granted, judgment vacated pursuant to

settlement); Incore Construction, Inc. v. Incore, Inc., No. 04-08-00785-CV,

2009 WL 4827071 at * 3 (Tex. App.–San Antonio Dec. 16, 2009, pet. denied)

63 (mem. op.); Birdwell v. Birdwell, 819 S.W.2d 223, 228 (Tex. App.–Fort Worth

1991, writ denied); Reeves v. Lago Vista, Inc., 497 S.W.2d 950, 954 (Tex.

Civ. App.–Austin 1973, writ ref’d n.r.e.); Rickey v. Houston Health Club, 863

S.W.2d 148, 150 (Tex. App.–Texarkana 1993), writ denied n.r.e., 888 S.W.2d

812 (Tex. 1994); Fortner v. Fannin Bank in Windom, 634 S.W.2d 74, 77 (Tex.

App.–Austin 1982, no writ); Lee v. Lee, 275 S.W.2d 574, 576 (Tex. Civ.

App.–Texarkana 1955, writ dism’d); Prairie Producing Co. v. Martens, 705

S.W.2d 257, 260 (Tex. App.–Texarkana 1986, writ ref’d n.r.e.).

The Corbin treatise addresses this issue as follows:

A single and undivided consideration may be bargained for and given as the agreed equivalent of one promise or of two promises or of many promises. The consideration is not rendered invalid by the fact that it is exchanged for more than one promise. If it could support each of the promises taken separately it is consideration for all of them ... Where an option is part of a larger contract, the consideration for the contract is also consideration for the option.

Joseph Perillo and Helen Bender, 2 Corbin on Contracts (rev. ed. 1995)

Section 5.12, pp. 56-57, 59. (emphasis supplied)

Comment a to the Restatement (Second) of Contracts, Section 80

(1981), states as follows:

[T]wo or more promises may be binding even though made for the price of one. A single performance or return promise may thus furnish consideration for any number of promises.

64 These principles apply to option contracts.

In Echols v. Bloom, 485 S.W.2d 798, 800 (Tex. Civ. App.–Houston [14th

Dist.] 1972, writ ref’d n.r.e.), the Fourteenth Court of Appeals expressly held

that there was consideration for an option in a real estate contract even where

there was no express recital of consideration for the option.

It is axiomatic that to be valid and enforceable a contract establishing an option must be supported by consideration. 13 Tex. Jur. 2d Contracts Sec. 38 (1960). Often the consideration is, as here, a sum of money to be regarded as a parcel of the total purchase price in the event the option-holder elects to buy. If an option is contained in a contract which itself is supported by a sufficient consideration, no independent consideration for the option itself need appear. Colligan v. Smith, 366 S.W.2d 816 (Tex. Civ. App.–Fort Worth 1963, writ ref’d n.r.e.).

Id.

In Lower Colorado River Authority v. Naumann, 638 S.W.2d 195, 196-

197 (Tex. App.–Houston [1st Dist.] 1982, writ ref’d n.r.e.), the Naumanns

executed a deed to the LCRA conveying eight acres of surface estate and an

option for the LCRA to acquire a perpetual easement over a 100 foot wide

strip of land. The deed recited consideration of $8,000.00, which was paid by

the LCRA. Id. There was no separate recital of consideration for the option.

The trial court found that the option was not supported by consideration. Id.

at 196. Citing to Echols v. Bloom, the Court of Appeals held that the trial

65 court erred in finding that there was no consideration for the option. Id. at

199.

The decision in Echols v. Bloom has been cited by the Missouri Court

of Appeals to support its holding that there was consideration for an option

contained in a real estate installment contract. In Johnson v. Farrow, 594

S.W.2d 655, 657 (Mo. App. 1980), the Court stated as follows:

Defendants’ second point is that there was no consideration for the option contract. In support of this contention defendants cite cases involving separate option contracts. See for instance Mohawk Real Estate Sales, Inc. v. Crecelius, 424 S.W.2d 86 (Mo. App. 1968). Here the option was a part of the entire real estate installment contract. The considerations flowing between the parties were part of the entire contract. These mutual considerations served to support the entire contract between the parties including the option provision. Echols v. Bloom, 485 S.W.2d 798 (2, 3) (Tex. Civ. App. 1972); 1 Corbin on Contracts Sec. 125. This is particularly apparent from the language of the paragraph granting the option which states it is “in consideration of the promises stated herein.” There was no lack of consideration.

In Bridgeman v. Jefferson Amusement Co., 207 S.W.2d 138, 140 (Tex.

Civ. App.–Beaumont 1948, writ ref’d n.r.e.), Jefferson Amusement entered

into a lease with a 10 year primary term with an option to extend the lease for

five additional years. There was no specific consideration recited for the

option. Id. Bridgeman argued on appeal that the option to extend the lease

was not supported by any consideration. The Court of Appeals rejected this

66 argument, stating as follows:

Plaintiff has assigned 9 Points of Error for reversal. Points 1, 2 and 4 are founded upon the proposition that the option to extend or renew the lease was not supported by any consideration. Plaintiff seemingly argues that the lease was divisible, expressing two distinct agreements, namely, the demise for 10 years and the option, and further, that whatever consideration may be expressed in the lease was intended to be a consideration for only the 10 year demise.

Points 1, 2 and 4 are overruled. The option was supported by a valuable consideration. It presumably constituted an inducement to Defendant to enter into the contract evidenced by the lease and as we construe the lease, Defendant’s covenants, rental and otherwise, were intended by the parties to be a consideration not only for the 10 year demise but also for the option. ... Our conclusion is in accord with that reached by other courts of this state in resolving similar questions of construction, arising under various kinds of agreements containing options. Blaffer & Farish v. Gulf Pipe Line Co., Tex. Civ. App., 218 S.W. 89; Griffin v. Bell, Tex. Civ. App., 202 S.W. 1034; Mayhew & Isbell Lumber Co. v. Valley Wells Truck Growers’ Ass’n, Tex. Civ. App., 216 S.W. 225, at page 232; Texarkana Pipe Works v. Caddo Oil & Ref. Co., Tex. Civ. App., 228 S.W. 586; Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, at page 268.

Id. at 142-143.

In Blaffer & Farish v. Gulf Pipe Line Co., 218 S.W. 89, 90 (Tex. Civ.

App.–Galveston 1919, no writ), cited above in Bridgeman, plaintiffs entered

into a contract whereby they agreed to sell to the defendant up to 1,000

barrels of oil per day, with an option for the defendant to purchase additional

quantities in excess of the 1,000 barrels. The plaintiffs argued that the option

67 provision was not supported by consideration. The Court of Appeals rejected

this argument, stating as follows:

We are of opinion that the contracts between the parties constitute entire contracts, and that the considerations recited support, not only the sale of the 1,000 barrels of oil by each of the plaintiffs, but as well the right of defendant to demand the placing of the excess oil in the settling tank to which defendant had attached its pipe line, and the right of defendant to run said excess oil into its pipe line, and thereafter, at the time of or prior to any settlement and payment for oil theretofore received, to purchase the same by paying therefor the price stipulated in the contract. Where in a contract supported by a sufficient consideration an option is given to one of the parties, the option is valid and enforceable, though there is no independent or specific consideration for the option.

Id. at 91-92. (emphasis supplied)

In Corsicana Petroleum Co. v. Owens, 222 S.W. 154, 154-55 (Tex.

1920), the Owenses entered into a mineral lease whereby Corsicana

Petroleum paid the Owenses $28.20, agreeing to drill a well within one year

or to pay delay rentals of $28.20 quarterly if no well was drilled. The

agreement also contained an option in favor of Corsicana Petroleum. Id. at

154-155. The Supreme Court found that the agreement was enforceable and

that the option was supported by the above-recited consideration. Id. at 155.

The above decision and the decision in Blaffer & Farish v. Gulf Pipe

Line Co. were later cited by the Supreme Court in Pace Corporation v.

68 Jackson, 284 S.W.2d 340, 343 (Tex. 1955), a case which involved a

settlement agreement between three shareholders that contained an option

granted to one of the shareholders to have the company supply him with

discounted cigarettes for resale. The option was described as follows:

4. Paragraph E, the heart of the controversy, reads as follows: “As a part of the consideration for this transaction, Pace Corporation agrees to supply Allan Jackson for any business he may become interested in outside of Bexar County, with cigarettes on a cash basis, at cost, for a period not to exceed two years after Pace Corporation has paid its indebtedness to Allan Jackson, such cost being defined as invoice price less normal trade and cash discount, if any.”

Id. at 343.

The Supreme Court found that Paragraph E of the settlement

agreement, quoted above, was “an option contract, supported by a valuable

consideration.”

Our construction of the contract is that for a valuable consideration Pace Corporation obligated itself by paragraph E to supply Jackson, at cost, with all the cigarettes he chose to order at any time on reasonable notice, and from time to time, for his cigarette business in Kerr and Bandera Counties for a period of seven years.

In asserting that the contract is lacking in mutuality petitioners have reference to mutuality of obligation, and assume that paragraph E is a separate and divisible contract. Paragraph E is not a separate and divisible contract. It is a part of the entire integrated contract between the parties, and the consideration for Pace Corporation’s promise to supply Jackson with cigarettes

69 was the sale and transfer of Jackson’s stock in the corporation at the price stipulated and the relinquishment of his rights incident to the ownership thereof. Blaffer & Farish v. Gulf Pipe Line Co., Tex. Civ. App., 218 S.W. 89, no writ history. Consideration for the promise having been [otherwise] paid or furnished, the contract is unilateral and mutuality of obligation is unnecessary to its validity. Corbin on Contracts, Vol. 1, secs. 21 and 152; 12 Am.Jur. 509-513, Contracts, secs. 13 and 14; 46 Am.Jur. 254, Sales, sec. 63. This elementary rule is recognized in Corsicana Petroleum Co. v. Owens, 110 Tex. 568, 222 S.W. 154, and in Johnson v. Breckenridge-Stephens Title Co., Tex. Com. App., 257 S.W. 223, 225. In so far as the provisions of paragraph E are concerned the contract is not a bilateral executory contract for the sale of cigarettes for future delivery but is an option contract, supported by a valuable consideration.

Id. at 344.

In Mayhew & Isbell Lumber Co. v. Valley Wells Truck Growers’ Ass’n,

216 S.W. 225, 226-227 (Tex. Civ. App.–San Antonio 1919, no writ), Valley

Wells and its members entered into an agreement with Mayhew to purchase

60,000 onion crates (30,000 that were to be deliverable immediately). The

agreement required a payment of $4,500.00 on the purchase price, which was

paid. Id. Mayhew provided the initial 30,000 crates, but subsequently and

untimely provided only 12,000 additional crates causing Valley Wells to suffer

losses due to damaged and ruined corps. Id. at 227. Mayhew argued that

there was no consideration to supply the additional crates, the second 30,000.

This Court rejected the argument, concluding that the initial payment of

70 $4,500.00 was part of the consideration for the additional crates. Id. at 231-

232. This Court concluded there was valid consideration for the additional

crates even if it adopted a construction of the agreement that there was only

an option contract for the second 30,000 crates. Id. at 231-232.

The Mediated Settlement Agreement recites that the parties agreed to

dismiss and release all claims asserted between them with the exception of

the undertakings reflected in the Mediated Settlement Agreement. (1 CR

182-183, ¶¶ 3 and 5) The relinquishment of a legal right is sufficient

consideration to support a contract. See Brison v. Continental Oil Co., 48

S.W.2d 442, 444 (Tex. Civ. App.–Fort Worth 1932, writ ref’d); Martin v. Martin,

Martin & Richards, Inc., 12 S.W.3d 120, 125 (Tex. App.–Fort Worth 1999, no

pet.); Birdwell, 819 S.W.2d at 228; Saenz v. Martinez, 2008 WL 4809217 at

* 4; Prairie Producing Co. v. Martens, 705 S.W.2d at 260.

Texas courts recognize that the settlement of disputed claims can

constitute legally sufficient consideration for an option. In Great Western Oil

Co. v. Carpenter, 95 S.W. 57, 58 (Tex. Civ. App. 1906, writ ref’d), the

Carpenters entered into mineral leases for 400 acres of land in Jefferson

County and 145 acres in Hardin County on January 28, 1901. On July 20,

1901, the parties entered into a new contract which extended the term of the

71 mineral leases and released back to the Carpenters 25 acres of the 145 acre

lease. Id. at 58-59. The Court of Appeals found that this release and

compromise was adequate legal consideration for an option.

We conclude that the lease contracts of January 28, 1901, were valid contracts and were in full force, binding the land embraced therein, on July 20, 1901, when the second contract was executed. The release of the 25 acres of land out of the tract of 145 acres furnished a valuable consideration for the option contained in the last contract, which option would have continued until and unless forfeited, by its terms, for failure on the part of appellant to begin work in 9 months and finish a well on each of the two tracts in 15 months from the date of the contract. Until these contingencies occurred, the land was bound by the option contained in this contract. This contract imposed no express obligation on appellant to do any work, as a consideration of the option, but the release of the 25 acres from the former leases was sufficient consideration to support it. A release of both tracts of land from this option was a sufficient consideration for the contract to convey the 2.82 acres of land and the payment of the $1,000 sued for herein. This conclusion finds further support, if need be, in the principle that agreements made in good faith in compromise of doubtful claims, are to be enforced notwithstanding the claim asserted on the one side is denied on the other, and may appear to be invalid or unenforceable. 1 Pars. on Contracts, 438.

Id. at 61.

The cases cited by the Marxes do not support the no consideration

arguments they make in their Second Point of Error. The Texas Supreme

Court in National Oil & Pipe Line Co. v. Teel, 68 S.W. 979, 980 (Tex. 1902),

simply stated that a promise to give an option is valid if supported by an

72 independent consideration and that if a sum of money is paid for the option,

the promisee may enforce the contract. That decision is not contrary to the

cases cited above by FDP which hold that if the option is contained in a

contract which itself is supported by consideration, no independent

consideration for the option itself need appear.

In Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851, 853 (Tex. App.–Dallas

1983, writ ref’d n.r.e.), the seller rejected the agreement before the buyer paid

the earnest money, a factual situation that is different from this case on

appeal.

The decision in Culbertson v. Brodsky, 788 S.W.2d 156, 157 (Tex.

App.–Fort Worth 1990, writ denied), also involved a factual situation different

from this appeal. In Culbertson, the contract permitted the buyer to deliver an

earnest money check to the title company that the title company could not

deposit for sixty days. The Court of Appeals explained as follows:

Brodsky’s check for $5,000 was not consideration for the option because the title company was forbidden to cash the check until the expiration of the option. During the option period, the check would have to be returned to Brodsky upon his demand despite any objections by Culbertson. We reject Brodsky’s argument that by delivering the check to the title company, he had to forbear the use of the $5,000 it represented. Because the title company could not cash the check, that sum remained on deposit to Brodsky’s account and since the check had to be returned to Brodsky on demand, he was free to put the money to any other

73 use. Brodsky contends that he had to maintain the $5,000 on account, however, Brodsky was not required to deposit funds to cover the check until he decided to exercise the option.

Id. at 157.

The Farm and Ranch Contract in this case expressly and

unambiguously provides that FDP shall deposit $10,000.00 as earnest money

with the title company. (1 CR 17, ¶ 5) The Marxes judicially admit that FDP

made payment and that it was deposited with the title company. See Marxes’

Summary Judgment Response, p. 3 (2 CR 488) (“Plaintiff [F]DP, LP,

deposited a check for earnest money with the title company described in the

contract, but said earnest money will be refunded to said Plaintiff entirely.”).

On page 21 of the Appellants’ Brief, the Marxes cite to the decision in

Chambers County v. TSP Dev., Ltd., 63 S.W.3d 835, 838 (Tex. App.–Houston

[14th Dist.] 2001, pet. denied), for the proposition that “the primary test for

determining whether an agreement is a valid option contract is whether the

contract imposes a mandatory obligation upon the seller to accept a sum

stipulated as liquidated damages in lieu of the purchaser’s further liability.”

After citing to the Chambers County decision for this proposition, the Marxes

state in the next paragraph of their Brief that “no such fee is described in

either the MSA, the Final Judgment, or in the warranty deed prescribed by the

74 Final Judgment” and that “the option agreement itself lacks all the essential

terms of a real estate contract.” All that Chambers County stands for is that

a real estate contract which provides that the seller’s only contractual remedy

is retention of the earnest money is considered an option under Texas law,

rather than a contract for sale that conveys equitable title. Id. at 838. There

is nothing in the opinion that speaks to essential terms required for the option

or enforceability.

The decision in Chambers County has absolutely nothing to do with any

of the issues in this case or the agreements that were executed by FDP and

the Marxes. Chambers County addressed the standing of an owner to sue

under the Private Real Property Rights Preservation Act, Tex. Gov’t Code §§

2007.001–.045. The Act permits owners of real property to file a lawsuit

against a political subdivision to determine whether a constitutional taking has

occurred. Chambers County, 63 S.W.3d at 837-838. The Act defines an

owner as a person with legal or equitable title to affected private real property

at the time a taking occurs. Id. at 838.

At the time that TSP Dev. sued, it had a contract to purchase property

in the relevant area. Id. The issue that the Court of Appeals addressed in

Chambers County was whether or not the contract for sale was an

75 enforceable real estate contract that granted legal or equitable title to TSP or

whether it was an option contract. The distinction was important because an

option contract does not pass title at the time that it is formed. Id. at 838.

The Court of Appeals found that the contract was an option contract

which did not confer standing on TSP under the Act. The Court of Appeals

concluded as follows: “As discussed above, the act provides standing only

for ‘owners’ of property possessing ‘legal or equitable title.’ ... Although TSP

may have certain rights in the property not possessed by the public at large,

e.g., an option to buy on particular terms, such claimed rights are not

sufficient to give it equitable title. ... The TSP/USX agreement was an option

contract; hence, TSP did not have standing to attack the ordinance under the

Private Real Property Rights Preservation Act.” Id. at 840. The Chambers

County decision cited by the Marxes on page 20 of their Appellants’ Brief

does not support their argument that the option provision that the Marxes

agreed to in the Mediated Settlement Agreement is unenforceable under

Texas law because it fails to contain essential terms.

The Marxes’ Second Point of Error must be overruled.

76 C. The Affirmative Defenses Alleged By The Marxes Did Not Bar The Trial Court From Granting Summary Judgment In Favor Of FDP (Responsive to Appellants’ Brief, p. 22)

In their Third Point of Error, Appellants’ Brief, p. 22, the Marxes make

a five sentence argument claiming that (1) their Supplemental Answer filed on

October 14, 2013, contained “no less than sixteen affirmative defenses,” (2)

FDP did not file a no-evidence motion for summary judgment and (3) the trial

court erred in granting final judgment in favor of FDP because the final

judgment “failed to dispose of each and every one of appellants’ affirmative

defenses.”

First, the Marxes cite no authority to support the arguments made above

in their Third Point of Error. This Court should overrule the Marxes’ Third

Point of Error for inadequate briefing. See Tex. R. App. P. 38.1(i).

“The Texas Rules of Appellate Procedure require adequate briefing.” ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010); see TEX. R. APP. P. 38.1. Specifically, Rule 38.1(i) requires that an appellant’s brief contain clear and concise arguments, “with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i); In re Blankenship, 392 S.W.3d at 259. Failure to satisfy this requirement waives the issue on appeal. See In re Blankenship, 392 S.W.3d at 259; Dove v. Graham, 358 S.W.3d 681, 685 (Tex. App.–San Antonio 2011, pet. denied).

... Because Valdez’s brief on this issue does not contain any clear and concise argument with appropriate citation to the record and authorities, we conclude that this issue was inadequately

77 briefed and thus waived. See TEX. R. APP. P. 38.1(i); In re Blankenship, 392 S.W.3d at 259.

In re Estate of Valdez, 406 S.W.3d 228, 235 (Tex. App.–San Antonio 2013,

pet. denied); see also In re Blankenship, 392 S.W.3d at 259 (concluding that

an issue was inadequately briefed and presented nothing for appellate review

when the appellant cited no cases or other authority in her brief); Rother v.

Rother, No. 04-13-00899-CV, 2014 WL 4922898 at * 3 (Tex. App.–San

Antonio Oct. 1, 2014, no pet.) (mem. op.); Nolan v. Hunter, No. 04-13-00072-

CV, 2013 WL 5431050 at * 9 (Tex. App.–San Antonio Sept. 25, 2013, no pet.)

(mem. op.).

Second, the Marxes’ arguments are flatly contrary to long-established

Texas summary judgment practice. The Marxes presented no evidence to

support any of their claimed affirmative defenses. (2 CR 486-516) The

defendant’s pleading of an affirmative defense will not prevent the rendition

of summary judgment for the plaintiff where the plaintiff has conclusively

established each element of its cause of action as a matter of law. See

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Once the plaintiff

has conclusively proven its entitlement to summary judgment, the burden

shifts to the defendant to produce evidence to raise an issue of fact on its

affirmative defenses sufficient to defeat summary judgment. Id. Under Texas

78 law, a plaintiff is not required to move for summary judgment on the

defendant’s affirmative defenses and has no obligation to negate the

defendant’s affirmative defenses. Id. See also Woodside v. Woodside, 154

S.W.3d 688, 691 (Tex. App.–El Paso 2004, no pet.) (“A plaintiff, when moving

for summary judgment, is not under any obligation to negate affirmative

defenses.”).2

In Lunsford Consulting Group, Inc. v. Crescent Real Estate Funding VIII,

L.P., 77 S.W.3d 473, 475-476, 477 (Tex. App.–Houston [1st Dist.] 2002, no

pet.), the First Court of Appeals explained as follows:

To defeat summary judgment by raising an affirmative defense, the nonmovant must do more than just plead the affirmative defense. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994). The nonmovant must present summary judgment evidence that raises that defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). If the nonmovant does not raise a fact issue on each element, there is no defense.

###

Because Kiser was relying on an affirmative defense to defeat summary judgment, he had to produce summary judgment evidence that raised a fact issue on each element of the affirmative defense. See Brownlee, 665 S.W.2d at 112. Because

2 In their summary judgment response, the Marxes acknowledge this authority, citing to the decision in Brownlee v. Brownlee (2 CR 486): “A defendant relying upon an affirmative defense must then come forward with evidence raising a fact issue on each element of its affirmative defense in order to avoid the summary judgment. Brownlee v. Brownlee, 665 S.W .2d 111, 112 (Tex. 1984).”

79 he did not, the trial court properly rendered summary judgment in favor of Crescent.

See also Jim Maddox Properties, LLC v. WEM Equity Capital Investments,

Ltd., 446 S.W.3d 126, 131-132, 133-134 (Tex. App.–Houston [1st Dist.] 2014,

no pet.); Brooks v. Excellence Mortg., Ltd., __ S.W.3d __, No. 04-13-00106,

2014 WL 2434583 at * 4 (Tex. App.–San Antonio May 30, 2014, no pet.);

Hammonds v. Cramer Financial Group, Inc., No. 04-96-00548-CV, 1997 WL

184734 at * 2 (Tex. App.–San Antonio April 16, 1997, no writ) (not designated

for publication).

This Court’s opinion in Wise v. Luke Development, LLC, No. 04-12-

00477-CV, 2013 WL 4483381 at * 2 and * 4 (Tex. App.–San Antonio Aug. 21,

2013, no pet.) (mem. op.), expressly addressed and rejected the arguments

made by the Marxes and is dispositive of their Third Point of Error.

When the plaintiff moves for traditional summary judgment, it must conclusively prove its entitlement to summary judgment on each element of its cause of action as a matter of law. See TEX. R. CIV. P. 166a(c). If the plaintiff does so, the burden then shifts to the defendant to produce evidence creating a genuine issue of material fact as to the challenged element or elements in order to defeat the summary judgment. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). The defendant’s mere pleading of an affirmative defense does not prevent the rendition of summary judgment for a plaintiff who has conclusively established each element of its cause of action as a matter of law. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

80 ###

Wise and Hubbard next argue the summary judgment was improper because Luke Development “failed to demonstrate the lack of [a] genuine issue of material fact” concerning their affirmative defenses. However, to avoid summary judgment, the burden was on Wise and Hubbard to produce evidence raising a fact issue on each element of their affirmative defenses. See A.J. Morris, M.D., P.A. v. De Lage Landen Fin. Serv., Inc., 2009 WL 161065, at * 12 (Tex. App.–Fort Worth 2009, no pet.) (rejecting the argument that summary judgment was improper when the plaintiff did not move for summary judgment on the defendant’s affirmative defenses); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.–Houston [1st Dist.] 2002, pet. denied) (noting that a plaintiff moving for summary judgment has no obligation to negate the defendant’s affirmative defenses). Wise and Hubbard do not argue they produced evidence raising a fact issue on each of the elements of their affirmative defenses.

The Marxes’ Third Point of Error is unmeritorious and must be

overruled.

CONCLUSION AND PRAYER

The final judgment and award of specific performance in favor of FDP,

LP must be affirmed.

The Marxes have not asserted in any of their three Points of Error that

there is an ambiguity with respect to the financing provisions of the Farm and

Ranch Contract that was created by the Mediated Settlement Agreement.

They made this argument in the trial court and in their Statement of Facts, but

81 have argued on appeal only that the agreements that they executed are

unenforceable because of contractual indefiniteness or failure to agree to all

material and essential terms. If this Court finds that the ambiguity argument

has merit, has been preserved for appeal, and requires reversal of the final

judgment, this Court should make clear in its opinion and judgment that on

remand FDP shall have the opportunity to conclude the transaction by

payment of $2,086,675.00 cash by FDP or by the obtaining of third-party

financing for all or part of the $2,086,675.00, resulting in FDP and FDP’s

lender paying a cash purchase price of $2,086,675.00.

Respectfully submitted,

PAUL WEBB, P.C.

/s/ Vincent L. Marable III VINCENT L. MARABLE III trippmarable@sbcglobal.net State Bar No. 12961600

221 N. Houston Wharton, Texas 77488 Telephone: (979) 532-5331 Telecopier: (979) 532-2902

82 GILBERT ADAMS LAW OFFICES

GILBERT T. ADAMS, III gilbert@gta-law.com State Bar No. 00790201

1855 Calder Avenue at Third P. O. Drawer 3688 Beaumont, Texas 77704 Telephone: (409) 835-3000 Telecopier: (409) 832-6162

ATTORNEYS FOR APPELLEE FDP, LP

83 CERTIFICATE OF SERVICE

I certify that on March 11, 2015, a true and correct copy of the above and foregoing Brief Of Appellee FDP, LP was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered; a true and correct copy of this document was forwarded to all counsel of record not registered with an Electronic Filing Service Provider by certified mail return receipt requested, addressed as follows:

Kirk Dockery kirkdockery@gmail.com Scott R. Donaho srdonaho@floresville.net The Law Offices of Donaho & Dockery, P.C. P. O. Box 459 Floresville, Texas 78114

[ Counsel for Appellants Robert Marx and Debbie Marx ]

/s/ Vincent L. Marable III VINCENT L. MARABLE III

84 CERTIFICATE OF COMPLIANCE

This brief complies with the length limitations of Tex. R. App. P. 9.4(i)(2)(B) because this brief consists of 14,522 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Vincent L. Marable III VINCENT L. MARABLE III

Final Judgment signed August 11, 2014 (2 CR 532-556) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “1”

Farm and Ranch Contract (1 CR 16-31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “2”

Mediated Settlement Agreement (1 CR 182-188) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “3”

Order confirming Arbitration Award and incorporating Arbitrator’s Ruling (2 CR 353-363) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “4” CA~SE NO•.12-03.0101-CVW

FDP,LPandLARRYFRIESENHAHN ·§ IN THE DISTRICT COURT OF § Y. § Wil.,SON COUNTY, TEXAS § ROBERT MARX, DEBBIE MARX § and DIEGO LOPEZ' . §. . s1sr JUDICIAL DISTRICT

.• F;IN.AL JUDGMENT

. . Came on for ~iderati.on Plaintiff PDP, LP's Motion For Final Summary Judgment For ,: Specific Performance .;And .. Other Relief and the Court having .. considered the motion, any

respobse, the plead.in~· in. the case .··· . and bavmg taken judicial notice of this Court's May 12, 2014, ~Granting PJai~~· Mo1i~n ~ AppliCation To 6mfum Arbitration A~ And Confi~atlon Of Arbii:falion AWard has determined that. Plaintiff PDP, LP is entitled to specific . ..• performance and the ofber relief reflected in this Final Judgm.ent. I .·:·. • • I

It is ORDE~_, ADJ:ID}GEJ> and ~ECREED that Plaintiff PDP, LP's Mo1ion For

Final Summary Judgment . Other Relief is granted. . Specific Performance And . For

It is ORDERED, .AD~GED and DECREED that FDP, LP is entitled to specific

performance of the Falm and Ranch Contract between Robert Marx and Debbie Marx and FDP,

LP dated January 27, 2012, as modified by the parties' August 27, 2013, Mediated Settlement

Agreement and further blarified by the April 14, 2014, ai:bitration letter ruling of Thomas J.

· Smith and confirmed b}t-"this Court's May 12, 2014, Omer Granting Plaintiffs• Motion And Application To Confirm Arbi~on Award And. Confirmation Of Arbitration Award. It is ORDERED, ADJUDGED and DECREED that a closing of transaction as

descnbeci~es~~onorbefor~~ ~~0~4.at ~J~ooJll +le Co. 30 o e:: /+\~ 11 n.e Rd , .v t=C!.;b-r ,a_ , /......_ . ( flocuti6lf]. . ·At or prlor to. . the closing, the Seller$, Robert Marx and Debbie Marx, shall, upon .

receipt of the c~ funds and the executed documents d.escno~ in the next p~agraph, execute •.

I I 532 the Warranty Deed With V~dor's Lien in the form attached to this Final Judgment as Exhibit

"A..,, This older is enforceable by contempt

·1t is ORDERED, ADJUDGED and DECREED that at or before the closing, Plaintiff

FDP, LP will tender cash funds of $300,000.00 and will execute the Real Estate Li~ Note and

Deed ofT~ in favor of Robert Marx and Debbie Marx in the ~ount of $1,786,675.00 and in

the form attached to this Final Judgment as Exhibits '"B,, and "C."

It is ORDERED, ADJUDGED and DECREED tba:t at or before the closing the parties

shall execute all other and necessary, typical and traditional documents required to close the

iransaction.

It is ORDERED, ADJUDGED and DECREED that Plaintiff PDP, LP have judgment

against Defendants Robert Marx .and Debbie Marx jointly and severally for $17,688.50 and post-

judgment interest on that amount until the sum is paid by Defendants to P1~1if£

In its May 12, 2014, Order Granting PJaintiffs' Motion And Application To Confirm

.Arbitration Award And Confinnation Of Arbitration Award, this Court made rulings as to Robert

Marx's and Debbie Marx's joint and several liability for the cost of the Arbitrator's fee.

($1,800.00) and the surveyor's fee ($11,539.43). To the extenttbattbese f~ remain

outstanding and unsatisfied, those rulings are reaffirmed and are deemed to be part of this Final

Judgment

In connection with the closing of this transaction described above, counsel for Plaintiff

PDP shall, prior to the closing, provide notice to the Title Company closing the transaction (with. a copy to counsel for Defendants) advising the Title Company whether Defendants have paid to

Plaintiff PDP, LP the attorneys' fees and expenses in the amount of$17,688.50, paid to the

surveyor the surveyor's fees in the amount of $11,539 .43 and paid to the arbitrator the

arbitrator's fees of $1!>800.00. The Title Company closing the sale shall deduct from the cash

payment made by FDP, LP any unpaid amounts described above and shall disburse payment to 2

533 the proper recipient.

The Fann and Ranch Contract states that the Seller (Defendants) shall fumish a Title

Policy at seller's expense. If, at closing, the Defendants have not :fumished and paid for such

Title Policy and PDP, LP has paid to obtain such Title Policy, the Title Compmy is directed to

disburse to FDP, LP such amoimts paid for the Title Policy from the cash payment to be mAde by

FDP, LP..

Plainti:ff FDP, LP is entitled to recover additional l'easonable and ne~sary attomeys'

fees of $2,800.00. Judgment is hereby rendered against Defendants Robert Marx and Debbie

Marx. The Title Company closing the sale shall deduct from the cash payment made by FDP,

LP any unpaid amounts descnoed above and shall disburse payment to the proper recipient

The Court c?nditionally awards appellate attorneys' fees to Plaintiff PDP, LP as follows:

$15,000.00 for the Court of Appeals.

$4,500.00 in the event that FDP> LP responds to a petition for review.

$9,000.00 ifbriefing on the merits is ordered by the Texas Supreme Court.

All other claims for relief asserted by any party to this case are denied. ... i

This is a final and appealable judgment.

Costs of comi:, including any mediator's fees associated ~th any mediatlons, are taxed

against Defendants Robert Marx and Debbie Marx.

SIGNED on this Date: ~---IA,J=-=----

534 APPROVED AS TO FORM:

i' Jq.\boJ~m GIT.BERT T. ADAMS, m J

gilbert@gt.a-law.com State Bar No. 00790201

GILBERT ~.AMS LAW OFFICE 1855 Calder Avenue at Third P. 0. Drawer 3688 Beaumont, Texas 77704 · Telephone: (409) 835-3000 Telecopier: (409) 832-6162

AITORNEY FOR PLAINTIFFS

535 . "

NOTICE OF CONF"J>ENru\LITY BIGHTS: 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 Ji'ILED FOR RECOP.J> IN THE PUBUC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S UCENSE NUMBER.

WARRANTY DEED WITBWNDOR'~ LIEN

Date: _ _ _ _ _ 2014

Grantor: ROBERT MARX AND DEBBIE MARX Grantor's Mailhlg Address: ROBERT MARX DEBB1EMARX 620 Marx. Lane. La Vernia, TX 78121 Wilson County Grantee: PDP, LP, a Texas Limited Partnership . I

Gi'Utee's MalUng Address: FOP, LP. 1204 Zanderton Jourdanton, TX 78026 Atascosa Counijr Consideration: TEN AND N0/100ths DOLLARS ($10.00) and other good and valuable consideration and the :further considemtion of a note of even date executed by Grantee and payable to the order of Orantor in the principal amount of ONE MILLION SBVBN HUNDRED EIGHTY- SIX THOUSAND SIX HUNDRED SEVENTY-FIVE AND N0/100 DOLLARS ($1,786.675.00). The note is secured by a first and superior vendor's lien and superior title retained in this deed and by a fb:st-lien deed of trust of even date from Grantee to KIRK DOCKERY, TRUSTEE. Property (Including any improvements):. . . 417.335 acre (Surface area-Orid Area: 417.201 acres) tract of land situated in the 0. C & S.F.R.R Survey, Section 5, Abstract No. 442, the Beajamin White Survey, Abstract No. 431; and the J.N. Stone Survey, Abstract No. 516 in Wt1son County, Texas, containing a portion of Tracts 1, 2 and 3 described in instrument to Mrs. Clara Jaksik Marx, Sr., recorded in · Volun1e 420, Page 209 ofthe W'tlson Co~ Deed Records, conta;ning a small portion of that certain 5.000 aore tract described in instrument to Robert R. Marx recorded in Volume 673, Page 799 of the Wilson County Official Public Records; containing a portion of that certain 326.047 acre tract descnoed in instrument to Robert R. Marx recorded in Volume ·

WARRANTY DEED WITH YENDOR WUEN Pags/q/S EXHIBIT

I A 536 ...

732. Page 377 of the Wilson County Official Public Records; and being more particularly described by metes and bounds on the attached Exhibit "A." Rese"ations from and Exceptions to Conveyance and Warranty: EaSements, rights-of...way, and prescriptive rights, whether of record or not; all ~ently recorded instrJine~ other than liens and conveyances, that affect the property; taxes for the current year, the payment ofwhich Grantee assumes. OP..ntor, for the Consideration and subject ·to the Reservations from Conveyance 8nd the Exceptions to Conveyanceand Warranty, grants, sells, and conveysto Grantee the~, together with all and sin~the rights and appurtenances thereto in anyway belonging, to haVe and to hold it to Grantee alld Orantee1s heirs, successors, and aSsig1ls forever. Grantor binds Grantor and Grantor's heirs and successors to warrantandforeverdefendall andsingulartheProp~to Grantee and Grantee's heirs, successors, and assigns against every person whomsoever 1aw.li1lly c~ or to claim the same or any part thereot except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty. · The vendor's lien against and superior title to the ~ are retained until each note .descnoed is ~Y paid according to its terms, at which time this~ will become absolute. Option:

Orantor hereby gt'.Sllts to Grantee the exclusive option to ~e the Homestead Prop~, described on the attached Exhibit "B," for the price offS00,000.00t for a period of 120 days from the earlier of (i) .written notice from the Orantor; (u) the. death of . tbe last surviving Orantor; .(tii) or the expiration of eight (8) years from the effective date of this Warranty Deed With V eiidor's Lien. · When the context requires, singular nouns and pronouns include the plural

ROBERT MARX

DBBBIBMARX

WARRANTY DEED WITH l'ENDOR'S UEN PagdoJJ

.537 ...

Acknowledgments STATE OF TEXAS § COUNTY OF _ _ _ __ § This instrument was acknowledged before me on _ _ _ _ _ _ 2014, by ROBERT MARX.

Notary Publict State of Texas

STATE OF TEXAS § i COUNTY OF _ _ _ __ !· § r . This instrument was acknowledged before me o n - - - - - - 2014, by DEBBIE MARX.

.{ N~ Public, S1ate of Texas

PREPARED lN THE OFFICE OF: Paul Wr.bb. PC 221 N. Houston Srm:t Whartan. Texas 7743g AFTER RECORDING RETURN TO:

WARRANTl DEED W1TH VENDOR l.S' UEN Pap3qf3

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..

541 r.· ( I REAL BATE LIEN NOTE

Date: _ _ _ _ _ 2014

Borrower: FDP, LP, a Texas Limited Partnership Borrower's Mailing ~ddr<$S: FDP,LP 1204 Zanderton Jourdanto~ TX 78026 · Wilson County Lender: ROBERT MARX A..ND DEBBIB MARX.. husband and wife Plaee for Payment: 620 Marx. Lane La Vernia, Wilson County, Texas 78121, or any other place that Lender may designate in writing; ·

Prfneipal Amount: ONB :MILLION SEVEN HUNDRED mGHTY-SIX THOUSAND SIX HUNDRED SEVENTY-FIVE AND N0/100 ($1.786,675. 00) DOLLARS Annual Interest Rate: 4.5% Maturity Date: 180 months from date ofNote Annuallnterest~te on Matured, Unpaid Amounts: The maximum lawtbl rate of intenst per annum. . .

I·I Terms of Payment (principal and interest): I 1·. Principal and interest are payable in 180 monthly installments of THIRTEEN 1HOUSAND SIX HUNDRED SJX'IY-SEVBN AND 94/100 ($13,667.94) DOLLARS or more each. Prom each of these installments the accrr.ied interest on the unpaid prlneipal will be deducted firs~ and the remainder will be applied to peyment of principal. The first installment is payable on or before I ~I --~-~_.'1 2014, and the others are payable regularly on or before the 30tb day of each succeeding month until the principal and interest have been paid · I ! Security for Payment: This note is secured by a vendots lien and superior title retained in a deedftOmROBBRTMARXANDDBBBm~busbandandwifetoBorrowerofevendateand by a deed oftrust of eyen date from FOP, LP to KIRK DOCKERY, TRUSTEE, both ofwhich cover the following real ~erty: . . · . 417.335 acre (Surface area- Orid Area: 417. 201 acres) tract ofland situated in the G. C & S.F.R.R Survey, Section .S., Abstract No. 442, the Benjamin White Survey, Abstract No. 431; and the J.Nt Stone Survey, Abstract No. S16 in Wilson County, Texas, containing a portion of Tracts 1, 2 and 3 descneed in instrument to Mrs. Clara Jaksilc Marx, Sr., recorded in Volurne 420, Page 209 of the · Wilson County Deed Records, containing a small portion ofthat certain S.000 acre tract described in instrument to Robert R. Marx recorded in Volume 673, Page 799 of the Wilson Co\Ulty Official . REAL FSl'ATE U&N NOTE Page JtJ/3 EXHIBIT I B 542 ..

. Public Records; oontaining a portion of that certain 326.047 acre tract descnoed in instrument to Robert R. Marx recorded in VoltJme 732, Page 377 of the Wilson County Official Public Records; and being more particularly described by metes and bounds on the attached Exhibit"'A." Other Security for Payment: None Borrower promises to par to the order of Lender the Principal Amount plus interest at the Annual Interest Ra~. This note 1~ payable at the Pl~ for Payment and ~r~g to the T~ of Payment All unpaid amomts are due by the Matunty D.ate. >Jter maturity. Borrowerpronuses to .pay any unpaid principal ·balance plus interest at tlie Annual Interest Rate on Matured, Unpaid Amounts. · If Borrower defaults in the payment of this note or in the perfonnance of any obligation in any instruments~ or collateral to this note, Lender may declare the unpaid principal balance, earned interest, and ~ other amounts owed on the note immediatel}' due. Notwithstanding any other provision of.this note, in the event of a default, before exercising any. of Lender's remedies under this note or any deed of trust or warranty deed with vendor's lien seeming it, Lender will first give Borrower written notice of default and Borrower will have ten days after notice is given in which to cure the default. Ifthe default is not cured ten days after notice, Boaower and each surety, endorser, and guarantor waive all demandforpayment, presentation for payment, notice of"mtention to accelerate maturity, notice ofacceleration ofmatmity, protest, and notice ofprotest, to the extent permitted by law. Borrower also promises to pay reasonable attom~sfceS and court and other costs ifthis note is placed in the hands ofan attorney to collect or enforce the note. These ~enses will bear interest ftom the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will ~Y Lender these expenses and interest on demand at the Place for Payment. These expenses and mterest will become part of the debt evidenced by the note and will be secured by any security for payment. Prepayment: Borrower may prepay this note in any amount at any time before the ?vl'...aturlty Date without penalty or premium. Application of Prepayment: Prepaym.entB will be applied ·to installments on the last maturing principal, and interest on that prepaid principal will immediately cease to accrue.

Interest on the debt evidenced by this note will not exceed the maximum rate or amount of nonusurlous interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the Princi~ Amount or, ifthe Principal .Amount has been paid, refunded. On any acceleration or required or permitted pre~yment, any excess interestwill be canceled automatically as ofthe acceleration orprql~ent or, if the excess interest has already been paid, credited on the Principal Amount or, if the Principal · Amount has been·paid, refunded. This provision overrides any conlllcting provisions in this note and all other instruments concerning the debt. . Each Borr9wer is responsible for all obligations represented by this note. When the context requires~ singular nouns and pronouns include the plural. A default exists under this note if (1) (a) Borrower or (b) any other person liable on any part of this note or who grants a lien or security interest on property as security for any~ of this note (an "Other Obligated Party") Dill$ to timely pay or perform any obligation or covenant in any written REAL ErTATE UEN NOTE

543 .agreement between Lender and Borrower or any Other Obligated Party; (2) any warranty9 covenant, or representation in this note or in any otherw.dtten agreement between Lender and Borrower or any Other Obligated Party is materially f81se when made; (3) a receiver is appointed for Bmrower, any Other Obligated Party, or any property on which a lien or security interest is created as security (the "Collateral Security'') for any~ ofthis note; (4) 81!¥ Collateral Security is assigned for the benefit of creditors; (S) a banlauptcy or insolvency proCeeding is commenced:by Borrower, a partnership of which Borrower ·is a general partner, or an Other Obligated Party: (6) (a) a barikruptcy or insolvency proceeding is commenced against Bo1t0wer, a partnership of which Borrower is a general partner, or.an Other Obligated Party and (b) the proeee1Hng con~ues without dismissal for sixty daYs. the~ against whom the proceeding JS commenced admits the material allegations of the petition against it, or an order for relief is entered; (7) any ofthe foUowing parties is dissolved, begms to wind up its affairs, is authorized to dissolve or wind up its affairs by its governing body orpersoDS:, or any event occurs or condition exists that permits the dissolution or ~ng up ofthe affairs of any of the following parties: Borrower, a partnership of which Borrower is a general partner, or an Other Obligated Party; and (8) any COllateral Sec~ is impaired by loss, theftt Ciamage, levy and execution, issuance of an official writ or order of seizure, or destruCtion, unless it is F.OJDPtlY replaced with collateral security of like kind and qualify' or restored to its fonner condition. · · Ifany provision of this note conflicts with any 1!rovision of a loan agreement, deed of1nlst, or security agreement of the same transaction between Lender and Borrower, the provisions ofthe deed of tnist will govei:n to the extent of the conflict : I This note will be construed under the laws of the state of Texas. without regard to I f. choice-of-law rules of any jurisdiction. . i I

FDP,LP

BY:~~---------------=~-:-.~--- Oeneral Partner ----~------------

RliflLESrDE LIEN NOTE PaseJq/S ..

·. 544 f- .. }. ..

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'· 2. btl114-~8Pt.a0'1feet

·~· i I EXHIBIT ''~" .. ·I I ~e-mi-- .'

• ... '·

. . I •

! ~(

.·.

: . . . ·. .. .. . t

I. I f ... I e

' . . 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 JN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DBIVER'S . . LICENSE . NUMBER. . DEED OF.TR.UST

Terms Date: 2014 · Granton PDP, LP, a Texas Limited Partnership Grantorts Mailing Address: FDP,LP . 1204 Zanderton Jourdanton, TX 78026 Wtlson County Trustee: KIRK DOCKERY Trustee's MaWng Address: KIRK DOCKERY P. O.Box459 . Floresville, TX 78114 · Wilson County Lender: ROBERT MARX AND DEBBm MABXt husband an4 wife Lender's ;Mailing Address: ROBERT MARX DEBBIBMARX 620 Marx Lane La Vemia, TX 78121 Wilson County Obligation Note Date: _ _ _ ___., 2014 Original principal amount: ONE Mil.LION SEVEN HtJl"IDRED EIGHTY-SIX THOUSAND SIX HUNDRED SEVENTY-FIVE . ANDN0/100 ($1,786.675.00) DOLLARS

( DEED OFTRUSf Pflge I o/1 EXHIBIT I -~ ·547 Borrower: FDP, LP, a Texas Limited Partnership Lender: ROBERT MARX AND DEBBIE MARX, husband and wife Maturlcy date: As provided in the note. Terms of ~~t As provided in the note.. Property (including any Improvements): ·

417.335 acre (Surface area - Grid Area: 417.201 acres) tract of land situated in the G. C & S.F.R.R Survey, Section S, Abstract No. 442, the Benjamin White Survey, Abstract No. 431; and theJ.N. Stone Survey. Abstract No. 516 in Wilson County, Texas, containing a portion ofTracts 1, 2 and 3 descdbed in instrument to Mrs. Clara Jaksik Marx, Sr., recorded in V-olume 420, Page 209 of the Wllson Comity Deed Records, containing a small portion of that certain 5.000 acre tract described in instrument to Robert R. Marx recorded in Volume 6731 Page 799 of the Wilson County Official Public Records; oontatn;ng a portion ot that certain 326.047 acre : . ~ct descnoed in instrument to Ropert R. Marx reco:ded in Volw;ie 732, Page 377 I ofthe Wilson County Official Public Records; and bemgmore particularly desCribed by metes and bounds o~ the attached Exluoit "A.'' · I i . Prior Lien: None. I

~ i Other Exceptiom to Conveyance and Warranty: Liens described as part ofthe Consideration• any other liens described in the deed to Oran.tor as being either assT.UDed or subject to which title is taken; validly existing easements, rights-of-way, and prescriptive rights, whether ofi:ecord or not; all presently I L

-~ recorded and validly existing instruments, other than conveyances of the surface fee estate, that affect the Prope~; and taxes for2014, ~utnotsu"8equentassessments for that and prior years due to change m land usage, ownership, or both. ~ I

For value received and to secure payment of the Obligation, Grantor conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the ~erty, subject to the Other Exceptions to Conveyance and Warranty. On payment ofthe Obligation and all other amounts secured by this deed of trust, this deed of trust will have no further effect, and Lender will release it at Grantor's expense. Clauses and Covenants A. Grantor's Obligations Grantor agrees to- 1. keep the Property in good repair and condition; 2. pay all taxes and assessments on the Property before delinquency;

DEBD OFTRUS'( P11ge2of1

548 3. defend title to the Pro~rty subjecttob. Other Blt.ceptions to Conveyance and Warranty and preserve the lien's priority as it is established in this deed oftrust; 4. . maintain all insurance· coverages with respect to the Property, revenues 1· generated by th~ Property, and operations on the Property that Lender reasonably requires ("Required Insurance Cov~es"), issued by insurers tind written on policyformsacceptable i J· to Lender, and deliver evidence of the ReqUlred Insurance Coverages in a fonn acceptable to Lender at least ten days before the expiration ofthe Required IDsurance Coverages; . 5•. obey all laws, ordinances, and restrictive covenants applicable to the Property; 6. keep any buildings occupied as required by the Required Insurance Coverages; · 7. if the lien of this deed of trust is not a first lien, pay or ea.use to be paid all prior lien notes and abide by or cause to be abided by all prior Hen instruments; and 8. notify Lender of any chang~ of ad~. B. Lender's Rights

! 1. Lender or Lender's mortgage servicer may a.Ppoint in writing one or more I substitute trustees, succeeding to all rights and responsibilities of Trustee. I If the Pr<>ceeds of the Obligation are used to pq any debt secured by prior !( I 2. liens, Lender is subrogated to all the rightS and liens ofthe holders of any debt so paid. ! i I 3. Lendermay apply any proceeds received underthepropcrtyinsurancepolicies I co"Verlng the Propertv eithei to reduce the Obligation or to repair or replace damaged or I destroyed improvements covered bythepolicy. Ifthe Property is Grantor's primaryresidence 1 . and Lender reasonably determines that repairs to· the improvements are economically .feasible, Lender will make the property insurance proceeds aVailable to Gnmtor for repairs. 4. Notwithstanding the terms ofthe Note to the contrary, and unless applicable law prohibits> all payments received by Lender from Grantorwith respect to the Obligation or tlils deed of trust may, at Lender's discretion, be applied :fkst to amoun1s payable under this deed of trust and then to amounts due and p~le to Lender with respect to the Obligation, to be applied to late charges, principal, or interest in the order Lender in its discretion detennines. S. If Grantor falls to perf'onn any of Grantor's obligatj.ons, Lender may perform those obligations and &e reimbursed by Grantor on demand for 8If1- amounts so paid, including attorney's fees, plus interest on those amounts from the dat.es ofpayment at the rate ·stated in the Note for matured, unpaid amounts. The amount to be reimbursed will be secured by this deed of trust. ·

6. If there is a default on the Obligation or if Orantor fails to perform ~ of Grantor's obligations and the default continues after any required notice of the default and the time allowed to cure, Lender may-

DEEDOFTRUST Pags3q1

.549·. . (

a. declare the unpaid principal balance and eamed interest on 1he Obligation immediately due; · b. direct Trustee to foreclose this lien, in which ~e Lender or Lender's agent will cause notice ofthe foreclosure sale to be given as provided by the Texas Property Code as then in effect; and c. \lurchase the Property at any foreclosure sale by offering the highest bid and then have the bid credited on the. Obllgati~ . . · ' 7. LendermayremedyanydefaultwithoutwaivingitandmayVJa.i~eany dem.ultwithout . waiving any prior or subsequent default C. Trustee's Rights and Duties Ifdirected by Lender mforeclose this lien, Trustee will- . 1. either persol)ally .or by agent .give notice of the foreclosure sale as required by the Texas Property Code as then in effect; · · · · 2. sell and convey all or part ofthe Property"AS IS" to the highest bidder for cash with a general warranty binding Grantor, subject to the Prior Lien and to tho Other Exceptions to Conveyance and Warranty and without represent.ation or warrMty, express or impli~ by Trustee; 3. from the proceeds of the sale, pay, in this order- a. expenses of foreclosure, includillg a reasonable commission to Trustee; b. to Lender, the full amount of principal, interest, attorney's fees, and other · charges due and unpaid; . c. any amounts requir~ by law to be paid before payment to Grantor; and d.; to Orantor, any balance; and 4. be indemnified, held hannless, and defended by ~nder against all costs,~ and liabilities incurred by Trustee for acting in the execution or enforcement ofthe trust created by this deed of trust, which includes all court and other costs, including attorneys fees, incmred by Trustee in defense of any action or proceeding taken against Trustee in that capacity. D. General Provisions 1. If any of the· Property is sold under this deed of trust, Grantor must immediately smTender possession to the purchaser. If Orantor fails to do so, Grantor will become a tenant at sufferance of the purchaser, subject to an action for forci"ble detainer. · 2. Recitals in any trustee's deed conveying the Property will be presumed to be true. I

3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any other remedy will not constitute an ~lection of remedies. .

DEED OF TRUST. Poge4of1

550 4. This lien 'Will remain superior to liens later created even if the time of payment ofall or part of the Obligation is extended or part of the Property is released. · S. If any portion of the Obligation cannot be lawfully secured by this deed of trust, payments will be applied first to discharge that portion. . . 6. Orantor &ssigns to Lender all amounts payable to or received by Orantor from condemnation of all or part of the Property, from private sale in lieu of condemnation, and from damages caused by public workS or construction on or near the Property. After deducting any expenses incurred, including attomey's fees and court and other costs, Lender will either release any remaining amounts to Gran.tor or apply such amounts to reduce the Obligation. tender will not be liable for failure to collect or to exercise diligence in collecting any such amount.s. Orantor will immediately give Lender notice of any actual or threatened proceedings for condemnation of all or parf of the Property.

7. Orantor assigns to Lenderabsolutelys not only as collateral, all present and future rent and other income and receipts from the Property. Orantor warrants the validity and enforceability of the assignment. Grantor may as Lender's licensee oollect rent and other iricome and receipts as long as Gran.tor is not in default with respect to the Obligation or this deed of trust. Grantor will apply all rent and other income and receipts to payment of the Obligation and performance of this deed oftrust, but ifthe rent and other income ana receipts exceed the amount due with respect to the Obligation and deed oftrust, Oran.tor may retain the excess. If Grantor defaults in payment of the Obligation or performance of this deed of trust Lender may tenninate Orantor's license to collect r~ntand other income and then as Grantor's agent may rent the Property and oollect all rent and other income and receipts. Lendor neither has nor assumes any obligations as lessor or -landlord with respect to any occupant of the Property. Lender may exercise Lender's rigl:tts and remedies ·under this p~h without takingpossessionoftheProperty. Lender will apply all.rent and other income and ~pts collected under this ~h first to expepses incurred in exercising Lender's rights and remeClies and then to Otantor's obligations with respect to the Obligation and this deed oftrust in the order detennined by Lender. Lender is not required to act under this paragrap~ and acting under this paragraph does not waive any of Lenders other rights or remedies. If Grantor becomes . a voluntary or involuntary debtor in banlauptcy, Lender's filing a. proofof claim in bankntptcywill be deemed equivalent to the appointment of a receiver under Texas law. 8. Interest on the debt secured by this deed oftrust will not exceed the maximum.amount ofnonusurious interest that may be contracted for, taken, reserved, char~ or received under law. Any interest in excess of that maximum. amount will be credited on the prlncipal of the debt or, if that has been paid, refunded. On any acceleration or required or permitted prepa~ent, any such excess will be c~celed automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been paid, refbnded. This provision overrides any conflicting provisions in this and all other instruments c.oncenllng the debt. 9. In no ev.ent may this deed oftrust secure payment of any debt that may not lawfully be secured by a lien on real estate or create a'Iien otherwise proluoited by law. 1O. When ~ oon~xt requires, singular nouns and pronouns include the plural.

DEED OFTRUST Pag4 S o/1

551 11. The term Note includes all extensions, modifications, and renewals of the Note and all amounts secured by this deed of trust. 12. Grantor agrees to furnish on Lender's request evidence satisfactory to Lender that all tax.es and assessments on the Property have been paid when due. _ . 13. If the Property is transfelTed by foreclosure, the transferee Will acquire title to all insurance policie8 on the Property, including all paid but unearned premiums. . 14. IfGrantor transfers any~ ofthe Pro_perty without Lender's prior written consent, Lender may declare the Obligation immediately payable and invoke any remedies provided.in this deed of trust for default. If the Property is residential real property containing fewer than five dwelling units or a residential manufactured home, this provision does not apply to (a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the Property; (b) ereation of a purchase-money secmity interest for houseb.old appliances; (c) transfer by devise, descent, or operation of laW on the death of a co-Granter; (d) grant of a leasehold interest ofthree years or less without an option to purchase; (e) transferto a spouse or children ofGrantor or between co-Grantors; \f) transfer to a relative of Grmitor on Ora.mot's death; (g) a transfer resulting from a decree of a dissolution ofmarriage, a legal separation agreement, or an incidental property seUlement~ment by which the spouse of Gran.tor becomes an owner of the Property; or (h) transfer to an inter vivos trust~ which Orantor is and remains a beneficiary and occupant of the Property.

15. This deed of trust binds, ben6fits, and may be enforced by the successors in interest of all parties. 16.. If Oran.tor and Borrower are not the same person, the term Grantor includes Borrower. 17. ~tor and each surety, endorser, and guarantor ofthe ObliSatton waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of matmity, protest, and notice of protest, to the extent permitted by law. 18. Orantor agrees to pay reasonable attorney's fees, trustee's fees, and collrt and other costs of enforcing Lender's rights under this deed of trust if this deed of trust is placed in the bands of an attorney for enforcement. 19. Ifany provision ofthis deed oftrust is determined to be invalid or unenforceable, the validity or enforceability of any other provision will not be affected. . 20. ~e term Lender includes any mortgage servicer for Lender.

21. Grantor represents that this deed of trust and the Note are given for the following purposes: The debt evidenced by the Note is in payment ofthe P1JrChase price ofthe Property; the debt is secured both by this deed oftrust and by a vendor's lien.on the Property, whichis expressly retained in a deed to Orantor of even date. This deed of trust does not waive the vendor's

DEED OFTRUST Pop6of1

552 lien, and the two liens and the rights created by this deed oftrust are cumulative. L..a.ndermay elect to foreclose either ofthe liens without waiving the other or may foreclose both. . FDP,LP

BY:·------------------~--~~-- aenerat Parlner ----------~-------

Acknowledgment STATE OF TEXAS § COUNTY OF _ __ § This "instrument was· acknowledged before me on 2014 by ~-~---=-~---· General Partner of FDP, LP, a Texas Limited Parlnership, on behalf of said partnership.

Notary Public, State of Texas

PRSPARBD IN THB OFFICB OP: Paul Webb. PC 221 N. Houston Street Wharton. Texas 77488 AFTBR. RECORDING RE11JRN TO:

DEED OP.TRUST Page1a/1

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• PROMULGATED BY THE TEXAS REAL. ESTATE COMMISSION (TREC) FARM AND RANCH CONTRACT • 08-01-2011

or as described on attache e bit. also known as ·Kua Ranch, Lavamia, TX caddreSS/Zlp COde)i tQ98tfier WiBi iii HghtS, prMieges, and appurtenan._ pertilrilng thereta1 fnCludl.1ng but not lmtted to: water righls, chilms, permits, strips and gores, easements, ·ana ~ratlve or: association mem.bel8hips. B. IMPROVEMENTS: (1) F~M and RANCH IMPROVEMENTS: The foll~ng. Perman&ntlY .lnstall" ap~ ~uni-Jn Hems, If .any: wlhdmttts, tankS, barns. ~ns, fences, ·gates, ·sh~, ootbuUdlhga, and corrals. (2) RESIDENTIAL IMPROVEMENTS: The house, garage. and an other fixtures and improvements attached to the above-lng and lighting ··fixtures, chandeliers, water softener system. kitchen equipment, garage door openers,· deaning equl1m.1ent, shrubbery, landscaping, outdoor c:Od.mem O. fu~I tanks ;a· submersible pumps fil pressure·tanks fil CO . S. (i gates ii chutes lJ Oth~r. - - - - - - -

(2) RESIDENTIAL AQ9ESSORIES: The foltoYilfig described related accessories, if ~ window air condltlonfng units, stove, fireplace screens, .curtains. and rods. blinds, windoW. shadesl draperies and rod.s, doqr keys. mailbox . k~~i~ above ground ~I. sWimmlng. pe>o eqtitpment and maintenance a~es. artificial ilreplace logs, . and contrQts for: (n satellite dfsh sysJems, (ll) garages. Oh) entry gafes, and (iv) other Improvements and accessories. . · D. CROPS: Unlm otherwise agreed in writing. Seller has the right to harvest all growing crops until delivery of possession of the Property. E. EXCLUSIONS: The following lmi>rovements, accessories~ and crops wfll be retained by Seller and must be removed prior1o delivery of possession: ...,•o ...n.,.•...__ _ _ _ _ _ _ _ __

F. RESERVATIONS: Any reseNation tor oil. gas, or other minerals Is described on the attached TREC addendum. Seifer reserves the fonowlng water, timber, ·or other Interests: _wo..,.n...e_·- - - -

3. SALES PRICE: A. Cas.h P-Ortlon of Sales Price .Payable· by B~er at closing •••.•.•..•.•.••• $ _ _...,30....0_._o_oo;i;;..;.;;;;o._o B. Sum of aJI financing described beloW (excluding any loan funding fee or mortga_ge Insurance ~mium) •.•••••...•.•....••••.•...•••.•• $ ~:-575, o~ 1 ~ 5: ~~i=P~s:" ~ ~rn>w11i nOi ·Ila acijti&t8d·6858d 'ciri ihe ·surVey ·~u~ by 15=:if9k ~if! lfthe Sales Price ISadjustea, the Sales Price wlll calculated on be basls of$ the 3. 750.• Ol> per acre. If the. Sales Price ts adjusted by more than 10%, either partym ay~te-rm.-·'""in-ate_tfi_t_s .-.... contract by providing Written notice to the other ~ within . 14 days after the terminating P,arlY receives the survey. If •neither par1.y terminates this contraet or If the variance rs 10% or less, the adjustment Will be made to the amount In CJ 3A Cl 38 Cl proportionately to 3A and 38. 4. FINANCING: The portion of Sales Price not payable In cash will be paid as follows: (Check applicable boxes berow) TREC NO. 25-8

I ,__ EXHIBIT 16 • Conlrsct Concemfng _ _ _...w~-.::;.__"""""'"*5~~~~r--.11111A..,...~~"""""--Page 2 of 9 Ga-01-2011 Ad Q A. THIRD PARTY FINANCING: One or more third party mortgage loans ln the total amount of $ (exduding any loan funding fee or mortgage Insurance premium). (1) PrOP,erty Approval: If tne Properj.y does not satisfy the lenders' u~derwrttlng r&qulrements for the loan(s) On~udlng, but not limited to appralsal, lnsurablllty and lenaer r~ulred ~rs), Buyer may terminate th1s contract by giving notice to Seller ~rior to ctoSlng and the eameSt money wlll be refunded 1D Buyer. (2) Credit Approval: (Check one box only) 1;a ·(a) Thi& contract 1$ su.bJect to Buyer being approvQCI fo.r. th.. e financing described In the attaooed Third Party ·Flnanclog Addenaum tor CredttApproval. CJ (b) Thl!f .contract I~ not subJect lo Buyer being apJ)roved for financing and does not lnvolVe FHA or VA financlng. Q B. ASSUMPTION: The assump11cn of tne un~d principal balance of one or more promissory notes describEld In the attaclied TREC Loan Assumption Addendum. ml c. SELLER FINANCING: A promissory note from Buyer to Setler of$ 1 , 575 000 Q 0 r I I secured by vendor's and deed of trust liens, and contalnlng the tenns and conditions described ln the attached TREC Seller Financing Addendum. If an owner policy of title Insurance is furnished, Buyer shaU furnish Seller with a mortgagee poOcy of tiUe Insurance. 5. EARNEST MONEY: Upon execution Of this contract by all pil!'tles, Buyer shall deposit $10 ooo . oo as earnest money wtth hdgppd zu;1 • as,~ agent at 3()0 E. Airllna (addresal. Buyer shall deposit additional eamest·money o~~ fi. yigtgria * TX 77201 . Wril'i escrow agent within days after the effeotive date of·this contract. If Buyer fills to Cleposlt the earnest money as reqUlred by this contract, Buyer wm be In default. 8. TITLE POUCY AND SURVEY: II Seller's CJ Buyer's ~nse an owner policy A. TITLE POLICY: ·setter shall furnish to Buyer at of title Insurance (Title Pollcy).lssusd by:. ·B8FcfiftiifctA; (Title Company) In the amc>unt of the sates Price, aated ae>r~r-ng. Insuring B~r

f; (~ !W::: ~~ ~~~s~;t~~T:J h~~~tfaet against loss under the provisions of the Title Polley, . subject to the promulgated exctuslons .. ·)and ·tfle.folloWfn.g excep1Jons~ ncluding .axlstl.ng.bulldlmJ .and zoning o·.rdlnances 1 The stand~.rd printed exceptlora for standby fees\ tax$$ and assesaments. or as may be approved by B~ettn~ng. (4) The standard Drlnted e~ceptlon as tomarltaJ right$. (5) The standaid printed exeeption as to wafers, tide1ands, beaches. streams, and related matters. (6) The standard printed exception as to. discrepancies conflicts, shortages in area or boundary nnesL~ncr:oacfiments or protrusions, or overlapping improvements. Buyer. at Buyer's expense, may nave· the exception amended to read. "shortagastn area•. B. COMMITMENT: Within 20 days after the TIUe Company receives a copy of this contract. Seller shall fumish to Buyer a commitment for tlUe Insurance (Commltinent) and, at Buyer's expense. legible copies of restrictive. covenants and documents ev1denclng excepjfons In the COmmltmenf (~ptlon · Oopumentsl other than the stan~rd printed ·~~ceptions. S~ller authorizes the Title Company to deffver the Commitment and Exception ~1S to Buyer at B~r's ad~ shown In. Paragraph 21. If the Commitment and Exception Documents are not.. delivered to Buyer Within the sDed . · fled time, the .time for delivery wlU be aU1omatlcally extended up to 16 dajs orttie Closing Data. whichever Is earlier. c. SURV.EY: The survey must be matte~~· a ~stared pro .. fesslonal land surveyor acceptable to the TlUe·Companyana Buyer's·tender(s). Check one box.Only): [l (1) Within days rthe effective date.of this contract. Seller shall furnish to Buyer and Title Company Selle~s existing survey of the .Property and a Residential Real PropertY Affld.avft promulgated by the Texas Department of lnsuranc$ (T-47 Affidavit). If Seifer falls to ful'tllsh the existing swvey or affidavit within the time prescribed, Buyer shall obta.In a new survey C. SelleCI e>epense no .later than 3 days prior to Closing Date. The existing survey l;;a wiU ~ wiO not be recertified tO a date subsequent to ttie effective date of this eo~ct at the e>epense of Q Bu~r Cl Seller. If the existing su.rvey Is not ap.pro.ved by e TIHa .Cs>ml)any or ewer's lender (s), a new survey will be obtarned at the expense of Buyer ~ Seller no later than 3 acivs prior to Closing Date. C (2) Within days after the effective date of this contract. Buyer shall obtain a new survey .at Buyer's aXJ>ense. Buyer is deemed to receive the survey on the date of actua recetptr." •he date specified In this paragraph, whichever Is earlier. II (3) Within ~ Q__ d~ after the effective date of this contract. Seller, at Seller's expense shaJI fum1Sh a new survey to Buyer. a (4) No survey Is required. D. OBJECTIONS: Buyer may object In writing to (I) defects, exceptions, or encumbrances to title disclosed on the survey other than items E;N1) through (5) above; or disclosed In the Commitment other than Items 6A(1) through (6) above: QI) any portion of the Property (

17 ( ContractConcamlng f.e~ lft1....y, n ~ 4c--n,9 • (Alld188S :of PrOperty 1):- Pega:i.o!G 0&-01-2011

lying tn a special flood hazard area (Zone V or A) as shown on the current Federal Emergency Management Agency map; or (RI) any exceptions which prohibit the fol1owlng use or aCtlvlty:

Buyer must object the earlier of (I) the Closing Date or (ii) 14 days after Buyer receives the Commitment. Exception Documents. and the survey.. Buyer's failure to object within the time allowed wfll constitute a waiver of Buyer's right to object; except that the requirements In Schedule C of the Commitment are not waived. Provided Seller is· not obligated to Incur any expense. Seller shall ctire the timely objections of Buyer or any third party l~ncler within 15 days after .Seller receives the objections and the Closing Date will be extended ·as necessary. If objections are not cured Within such _15 day_ period, this· contract wUI terminate end 1he eamest money will be refunded to Buyer uni~ Buyer w•lves the objection$. E. EXCEPTION DOCUMENTS: Prior to the. execution of the contract. Seller has provided Buyer with copies of the Exception Documents listed below or on the _attac;:hed exhibit. Matters reflected tn the Exception Qocuments Usted below or 01i .tne attached exhibit will be pernillled exceptions In the Title Polley and wm not be a basis for objection.to tlUe: Dorn 1ment Data Recording Reference

F. SURFACE LEASES: Prior .to the execution of the oontract, .Seller has provided Buyer with copt~ of written leases and given notice of oral. leases (Leases) listed below or on tne attached exhlbH. The ·following Leases will be pertnltted exceptions in the Tltte Policy and wlD not be a basis for objection to tlUe: _ _ _ _ _....___ _ _ _ _ _ _ _ _ _ __

G. TITLE NOTICES: (1) ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering · the Property examined by an attorney .of Buyer's s.electfon, or Buyer should be fumished wfth or obtain a Title Polley. If a Tme Polley Is furnished, tl'}e Commitment s~ould be promptly· :revtewect by an attorney of Buyer's chol_ce due. to the time ·11m1tatfons on Buyer's right to obJecl (2) STATUTORY TAX. QISTRICTS: If .the Property IS .Situated in. a utility or other statutorily created district provldfng water. sewer, draln,ge, or flood control facilities and services. Chaj)ter 49, Texas Water Code, requires Seller to deliver and Buyer .to sign the statutory notice relating to the· tmc rate,. bonded Indebtedness, or standby fee of the district prior to final execution ofthis contract. (3) TIDE WATERS: If tile Property abuts the tldallY Influenced waters of the state, §33~135. Texas Natural Resources Code, requires a notice regarding coastal area property 'to be lneluded In the contract. An addendum containing the notice promulgated by TREC or . reqc.ilred by the parties must be used. (4) ANNEXATION: If the Property Is loc:ated outside the limHs of a munlclpality, Seller notifies Buyer under §5.011, Texas Property Code, thaf the Property may now or later b' Included In the extraterritOrial jurisdiction of a municipality .and may now or later be subject to annexation by the munlclpallty. Ea~ munlclpallty maintains a map that depicts Its boundaries and extraterritorial jurisdfcUon. To determine If the Property Is located wHhln a: municipality's. extraterritorial jurisdiction or ts likely to be located within a municipality's extraterrftortal Jurisdiction, contact all munlclpatities located in the general proximity of the Property for further Information. (5) PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE PROVIDER: Notice required by §13.257, Water Code: The real property, described· In Paragraph 2, that you are about to purchase may be located in a eertlflcated water or sewer servl~ area. which Is· authorized by law to provide water or sewer service to the properties In the certificated area. If your property Is located In a certificated area there may be special costs or charges that you will be required to pay before you can _receive water or sewer service. There rnay be a period required to con~truct lines or other facilities necessary to provide water or sewer service to your property. You are advised to (_

18 .. • ~Concerning We #vr k!l~,..,,.,,,..; t? detenntne If the property Is In a ~~/ea •• and contact the utlllty service provider to detennine the cost that you wlll be required to pay and the period, if any. that is required to Page4ors os-o1-2011

provide water or sewer service to your property. The undersigned Buyer h~eby acknowledg~ receipt of the foregoing notice at or before the execution of a binding contract for the purchase of the. real propertY described Jn Paragraph 2 or at closing of purchase of the real property. (6) PUBLIC IMPROVEMENT DISTRICTS: If the Property is in a public Improvement district, §5.014 •. Property Code, requites Seller to notify Buyer as follows: As a purchaser of this parcel of real property ~u are ·obligated to pay an assessm.. ent 1o a munJ.c.lpallty· or county for an Improvement project undertaken by a public improvement district under Chapter 372, Local Government Code. The assessment may be due annually or In periodic Installments. More infonnatlon concerning the amount of the assessment and the due dates of that assessment may be obtained from 1he municipality or county levying 1he assessment The amount.of the assessments ls subject to change. Your failure to pay the assessments could result In a lien· on and the fo~closure of your property. (7)· TEXAS AGRJCULTURAL DEVELOPMENT DISTRICT: The Property 0 is Q ls not located. in a Texas Agricultural Development District. For additional lnforimmon contact the. Texas Department of Agriculture. 7. PROPERTY CONDmON: A. ACCESS. INSPECTIONS AND UTILlTlES: Seller shaD permit Buyer and Buyer's agents acoess tQ the Property at re~sonable times. Buyer may have the Property Inspected by inspectors selected by Buyer and licensed by TREC or otherwise permitted by law to make lnspectlons. Seller at Seller's expense shall tum on existing utmtles for inspections. NOTICE: Buyer should determine the avallablllty of utilities to the Property suitable to satisfy Buyer's needs. 8. SELLER'S DISCLOSURE NOTICE PURSUANT TO §5.008. TEXAS PROPERTY CODE (Notice): (Check one box only) (1) Buyer has received the Notice 8 (2) Buyer has not received the Notice. Within days after the effective date of this contract, Seller shall deliver the Notice to Buyer. If Buyer does not receive the NOtice. Buyer may tennlnate this contract at any ti~ prior to the closing and the earnest money will be refunded to Buyer. If Seller delivers the Notice, Buyer may terminate this contract. for any reason within 7 days after Buyer receives the Notice or prior to the clc;>Slng, whl~~ver first OCCtJrs, and the earnest money will be refunded to Buyer. i) (3) The Texas Property Code does not require this Seller to furnish the Notice. c. SELLER'S DISCLOSURE OF LEAD-BASED PAINT AND LEAO-BASED PAINT HAZARDS is required by Federal law for a residential dWelHng constructed prior to 1978. 0. ACCEPTANCE OF PROPERTY CONDITION: '(Check· one box only) Iii (1) Buyer accepts-the Property in.Its present condition. . · C (2) Buyer accepts the Property In Its present condition provided Seller, at Seller's expense, shall complete the.following specific repairs and treatments: _ _ _ _ _ _ _ _ __ •(Do not Insert -gen-_e-_ra_l_p-hra-.-se-s-,-su_ch_a_s_'-su_b_lect-.-to-ln-s-pecu-_-ons-·-.'l"'!'i... hat-do_no_t...Id_e_n_tifY_sp_eci_fi_crepairs.) NOTICE TO BUYER AND SEU.ER: Buyer's agreement to accept the Property In Its present condition under Paragraph 70{1} or (2) does not preclude Buyer trom lnspecti.ng the Property vnder Paragraph 7A. fro.m. negotlatl,ng repairs or treatments In a subsequent -amendment or m>m tennlnattng this contract during the Option Period, If any. E. COMPLETION OF REPAIRS: Unless otherwise agreed In writing, Seller shall complete all agreed repairs prior to the Closing Date. All required permits must be obtained, and repairs must be perfonned by persons who are licensed or otherwise permitted by law to provide such repairs. At Buyer's election, any transferable warranties received by Seller with respect .to the repairs will be transferred to Buyer at Buyer'& expense. If Seller falls to complete any agreed repairs prior to the Closing Date, Buyer may do so and receive reimbursement from Seller at closing. The Closing Date wlll be extended up to 15 days, If necessary, to complete repairs. · F. LENDER REQUIRED REPAIRS AND TREATMENTS: Unless otbelWise agreed In writing, neither party Is obligated to pay for lender required repairs, which Includes treatment for wood destroying Insects. If the parties do not agree to pay for the lender required repairs or treatments, this contract will terminate and the earnest money wlll be refunded to Buyer. If the cost of tender required repairs and treatments exceeds 5o/o of the Sales Price, Buyer may terminate 1hls contract and the earnest money will be refunded to Buyer. G. ENVIRONMENTAL MATTERS: Buyer Is advised that the presence of weUands, toxic substances, Including ·asbestos and wastes or other environmental hazards, or the fresence of a threatened or endangered species or Its habitat niay affect Buyer's Intended use o ·the Property. If Buyer Is concerned about these matters, an addendum promulgated by TREC or required by the parties should be used. H. SELLER'S DISCLOSURES: Except as· otherwise disclosed In this contract, Seller has no knowledge of the following: 1 an floodfn of the Pro e which has had a material adverse effect on the use of the Pro TAR 1701 Initialed for Identification by BuyerL wi:- _ a n d Seller j,.J!l TREC NO. 25-8

19 . . • Contract Concemlng _ _~~~--.,..,."""'~~~~~~----'~-- Page 5 of9 08-01-2011 resso (2) any pending or threatened litigation, condemnation, or spectaJ assessment. affecting the • PrOperty: (3) any emitronmental hazards or condtuon.s materially affecting the Property; (4) any dumpslte, landfiU, or underground tanks or contalners now or previously located on the Property:

~ .. ·e.raJ or state law or ,.gulati.on, ecting the Property: o.r any w.aflands, as d.efl.ne.d by fed affi.

any threatened or endangered species .or their habitat affecting the PrOperty. I. SIDENTIAL SERVICE CONTRACTS; Buyer may purchase a residential servfoe contract from a residential servl~ company Ileen~· by TREC. If Buyer l>Ul'Chases a residential service contrad. Seller shaU reimburse Buyer at closing for the cost of the residential service conlrad In Qri amount not exceed1ng $ . . Buyer should review any resldenttal servfce contract for the scope of coverage, excluslons and limitations. The purct:aase of a residential service contract Is optional. Slmllar co~erage may be purchased from various companies authorized to do business In Texas. J. GOVERNMENT PROGRAMS: The Property Is subject to the government programs listed below or on the attached exhibit Hone Seller sJ:1aU p[9Vlde . Buyer with co~.~_pt"""~~o~r'""'!.a!"ll''l~g~ov~e'!"'!.mme~. AriY-.--a-lf9....ca--$ri-. . . . -.... ~-~nta1~"9'!P'!'-'.~~ram~~a~grQS~_-.--~---~""'Inti or proration of paY.nJent under: govemmenfal programs is made by separate · agreement between the partles··whlch wlll survtVe clo$1ng. · a. BR.OKERS' FEES: All obligations of the parties for payment of brokers' fees are contained. ln separate written agreements. · 9. CLOSING: A. The clos.lng.of the sate will be on or before March 1Sth...r... 2012 , ., or within 7 days after ot;~ons made under Paragraph 60 nave been cureo · or watv8d, Wl11aiever date ·IS later {Closing Date). If either partY fall$ ~o close the sale by the Closing Date, 1he non-defaulting party may exercise the remedies contalned·tn Paragraph 15. B. At clos{!lg: (1) Selle.t sha.11 execute and delive ..r a general .warranty deed conV&Y.ing. tlU.e to the Properfy to BuyQr end showing no a.ddltionar exceptions to. those permitted In Paragraph 81 an a~tgnment Qf Leases, and furnish tax· statements or cerUficates showing no delinquent taxe8' on the· PropertY. (2) Buyer shall ~the Sates Prtce In good ~acceptable to the escrow agent. (3) Seller and B~. shall exe~ 8nd. delM~r 81'.'Y notfC::es. ·.statemeritS, certifica~s, affidavits, reteases, loan d~ments and other .documents reasonably requl~- for the closing of the sate:and the·1ssoanceof1heTIUe P.oltY. (4) There wm be. no ."e.ns, assess ... =·merits or secu.rlty Interests against the P~p~ whlCh wlll not be satisfied out Of the. sales s unless· securing the payment of any loans assumed by Buyer and assumed loans wH not be In default (5) If the .Proper!>.'-. is subject tO a lease,. Seller s.hal.I (I} .de.Over to Bul9r the lease.'Cs). an.d th.. e move-In condition form s!gned by the tenant, If ~~ ~ (II) tra~fer securltv. deposits (as d~.fined under §92 •. 102. P.•l'C)r.tY Code);. If a11y.• to.. B!)Yer. fn suth.. an ..·ev(!~t. Buy~r shall deliver to the. tenant a s'g~. statenient a~owledglng that ~e. B~r h8s reoelV-' 1he security depostt and ls ~Ible for the retum of tfle· security depoSlt, and specifying the exact dollar: amount of the secunty deposit . 10. POSSESSION: Seller. shall deliver to B~poss.esslon of the PrQpe. condttlon, ordinary wear and tear excepted: Its present or required upon dosing .and fumifng ·· accoi"dlrig to a temporary residential lease form ·promulgated by T . c or o1her ·written lease req lred by _tfte parties. Any r:i" possession by Buyer prior to closing or by Seiter after closing which Is not aUthorized by a wrlttan lease WIU establish a tenancy at sufferance relationship betWe8n the parties. Consult your Insurance agent prior to change of ownership and pc>ssesslon because Insurance coverage may be llmlted or t~rmlnated: The absence of a written lease or ~pproprlate Insurance coverage may expose the parties to economic ·loss.• 11. SPECIAL PROVISIONS! (.:Insert onlv factual statements and business details appJicable to the sale. TREC rules prohibit Hcensees fi'om addlng factual statements or busln8$S details for which a contract addendum· or other form has been promulgated by TREC for mandatory use.) Buyer i.s a licensed real estate agent. Buyer and Seller aqree to the following details to be worked out before closing: 1. Seller will survey out apprc>ximately 21 acres which will not convey with this sale. 2. Seller will sign a first right of refusal and option agreement for the 21 ac~es which will allow buyer to purchase the proeprty in the future. 3. Seller will retain an easement for a.caess to the 21 acres. 4. Seller aqrees to fence the 21 acres withi.n 120 days after closing.

TAR 1701 Initialed for identification by Buyer ~ and Seller .Bl!L TREC NO. 25-8 Producod with zlpFCllnG by zlplogbt 16070 ~en M!Jo Road, Fto$Cr, Michigan 48028 www zipl·ngir mm Lavcmia

20 .. Contract Concemlng • {p 2 0 /i1 Ar-,t'"' /,. 11"' <. .. ~

Page 6 ot 9 08-01~2011 (Addrea of Pnijierty) 12. SETTLEMENT AND OTHER EXPENSES: A The followlng e),r~Y stated· In this contract for such expense to be paid by a paffi', that party may terminate this contraet unless the other Qartv ~grees · to pay such excess. Buyer may not pay ch~"8 and f~es expr•sly prohibited ~Y FHA, VA. Texas· veterans Land Board or other govemmel'ltal loan .Program regulatfOns. 13. PRORATIONS AND ROLLBACKTAXES: A. PRORATIONS: Taxes for the current yearblntere~ maintenance fees. assessments. dues and rents wlll be prorated through the Closlng ate. The tax proration may .be calculated taklf!a irito consideration any change In exemptions that will affect· ttie current year's taxes. If taxes for the current year vary from the amount prorated at closlng, the parties shall adjust the proratfons when taX statements for the curren year are avallal>le. If taxes are not paid at or prior to closing. Buyer shall pay taxes for the current year. Rentals which are unknown at time of closing wlll 6e prorated between Buyer and Seller When they become known. B. ROLLBACK· TAXES: If this sale. or Buyer's use· of the Prope~ after closing results in the assessment of addHfonal taxesL penalties or Interest (Assessments) for periods. prior to clostng. the Assessments will be the· oolfgatlon of Buyer. If Seller's change In. use of th~ Properly prior to closing or ·dental of a special use valuation on the PropertY claimed by .Seller results fn Assessments ·for ~rlods pnor to ctostng, the Assessment.s will be the obligation of Seller. Obligations fmposea by this paragraph will survive dosing. · · · 14. CASUALTY LOSS:· If BO)! part of the Pro~rty is damaged or destroyed by fire or other casualty after the effective date of this contract. seller shall restore the Pro~rlY._ to its _previous concfrtlon as.. soon as reasonably. possible. but in any event by .the Closing Date. If SeDer .fans to. do 89 due tO factors beyond SeRer's ®ntrol, Buyer may {a) terminate this ex>ntract and the eamest ·money· will. be refunded to Buyer, (b) extend tile time for _perfonnance UP. to 15 days and the Closing Date wiD be extended as necessary or ·(c) accept the Pro~tfy In Its CJamaged condition with an assignment of' Insurance proceeds and receive credit from ·Seller at closing In the amc,runt of the deductible· under the insurance 1>9Hcy. Selle~s obligations under this paragraph are independent of any other obUgatlans of Seller urider this· contraol

15. o_EFAULT: If Buyer falls to comply with this conti:act. Buyer will be In default. and Seller may (a) enforce specific perfonnance, seek such other relief as may be provided by law, or both, or (b) tennlna1e this contract and receive the eamest money as liquidated damage$; thereby r~easlng both parties from this contract. If, due to factors beyond Seller's c:qntrol, SeUer falls within the time allowed to make any non-casualty repairs or deliver the Commitment. or survey. if required of Seller, Buyer may (a) extend the time for performance up to 15 days and the Closing Date will be extended as necessary or (b) terminate this contract as the sole remedy and receive the earnest money. If Seller falls to comply with this contract for any other reason, Seller wlll be In default and Buyer may (a) enforce specific. performance, seek such other relief as may be provided by law, or both, or (b) t~nnlnate thl~ contract and receive the earnest money, thereby releasing both parties from this contract. 16.. MEDIATION: It Is the policy of the State of Texas tc;> encourage resolution of disputes through alternative dispute resolution procedures such as mediation. Any dispute between Seller and Buyer related to 1hls contract which Is not resolved through lnfonnal discussion CJ will 1J will not I be submitted to a mutually acceptable mediation service or provider. The parties to the mediation j( TAR 1701 Initialed for Identification by Buyer L f/v r=__ and Selle~ ................ TREC NO. 25-8 ~ mm Produced with zlpFonn$ by ztpl.ogbc 18070 Flftacn Mlle Road, Fraser, Mlchlgao 48026

I 21 Contract Concerning (Address of Property) • (.17 2. 0 IJ1 tlJ r ,Y La11 e /A.;bllH't It';,. 7 of 9 OS.01-2011

shaU bear the mediation costs equally. This paragraph does not preclude a party from seeking equttable relief from a court of competent jurisdiction. 17. ATTORNEY'S FEES: A Buyer, SeHer, Usting Broker. Other Broker~ or escrow agent who prevalls In any legal proceeding related to this contract Is entitled to recover reasonable attomey's fees and all costs of such proceeding. 18. ESCROW: A. ESCROW: The escrow agent Is not Ol a party to this contract and does not have llabDlty for the performance or nonperformance of any party to this contract. (U) liable for Interest on the eamest money and (DI) Hable for the loss of any earnest money caused by the failure of any financial Institution In whlCh the earnest money has been deposited unless the financial Institution ls acting as escrow agent. . B. EXP:~SES: At cl~tng. the e.arn-1 money mu~t be appHed .first to $1Y cash down P8Y(n..ent, then to .Buyer's. E>,cpenS~·.·~.00 any .exqess ~fµ.nded t() ell)'~r. If n~ (:lo~lng ~rs. .~cn;>W agent may: (I} requite. a. written release of Hablflty of the escrow agent . from . all Parties. · {U} require payment .of unpai~ expenses lnc;urred on behalf of a party,_ and (Ill) 011ly dEl(ftic:.l fl:om the eamest money the ·amount of ·unpaid expenses inc:uri"ed On behalf of the party receiving the earnest money. C. DEMAND: Upon termination of 1his contraot•. either party or the escrow agent may send a release of earnest money to each party and. the parUeS shall execute counterpart$ of the release and del1ver same to the escrow agent If either party falls to execute ·the release, either party may make a written demand to the escrow ·agent for the earnest money~ If only one party makes written d~mand. for the earnest money. escrow agent shall promptly provide a copy of the demand to the other party. If escrow ~gent does not receive written objection to the demand from .the other .Party within 15 days •. e8crow ·agent may disbUNS the earnest ·money to the party . m,aktng· demand. reduced by the. ~mount of U'1pald expenses fncurred on behalf of the party receiving the eamein money and escrow agent ·may .Pay the ·same to the ~. If escrow agent compll~ with the provisions ·Of this ·par_:ag_raph, each party hereby releases escrow agent fr9m all adverse dalms related to' ttw disbursal of the earnest money. D. DAMAGES: Any party who wrongfully falls or refuses to sign a release acceptable to the escrow agent within 7 days of receipt of the request will be liable to the other ·party for Hquidated damages In ~11 amount equal to the sum of.·. (I} three times the amount· of the earnest money; (ti) the earnest money; (Ill) reasonable atlomey's fees; and (Iv) all· costs of suit. E. NOTICES: Escrow agent's notices will be effective when ~nt in compliance with Plµ'agraph 21. Notice of objection to the .demand will be deemed effective upon recetpt by escrow agent. 19. REPRESENTATlONS: All covenants, representatiol')s and. warranties In this ·.contract ~urvive closing. If any representation of :Seller In this contract is untrue on the Closlng Date. ~lier will be In default Unless expressly. prohibited by· written agreement. Seller may continue to show the Property and receive. negotiate and accept back up offers. 20. FEDERAL TAX REQUIREMENTS: If Seller Is a ~ore1gn person,• as defined by applicable law, or If Seller falls to deliver an affidavit to Buyer that Seller is ·not a "foreign person," then Buyer shall withhold from the sales prOceeds an amount sufficient to oornply· with applicable tax law and dellW!r the same to the lntemal Revenue Service tog~ther .with appropriate tax fonns. Internal Revenue Service regulations require filing written reports ff currency In excess of specified amounts is received In the tran$actlon~ 21. NOTICES: All notices from one party to the other must be in writing and are effective when mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows: To Buyer at: F o P. a.. P To Setler at: 1204 ZandMnpn ~ o be.- -r 1411< m Jourdanton, 'l'X 79026

Telephone: <830> 570-3570 Telephone: c2101110-3856 Facslmlle: C830> 769-1001 Facsimile: - - - - - - - - - - - - - - - - larry@atascosawildlifesupply.c E-mail: om E-mail: ------------------------- ------------------------ TAR 1701 Initialed for identification·by Buyer L. w E and Seller. TREC NO. 25·8 Produced v.1th zlpFOtTne by zlploglx 18070 Flltoen Mlle Road, Fmser, Michigan 48026 WWW zfDI ngly mm

22 ..

Contract Concemtng ~;..-,--~-~~--W._'-_. -...i:::i::l.....:;.......__._....-...... (Address of Property) • ~-'....~..._T,,____ Page 8of 9 OB-Oh2011

2Z. AGREEMENT OF PARTIES: This contract contains the entire agreement of the parties and cannot be changed except by their written agreement Addenda which are a part of thls contract are (check alt appllcable boxes): CJ Third Party Anancing Addendum for Credit Q Addendum for •sack-Up• Contract Approval I) Seller Flnancing Addendum C Addendum for Coastal Area Property CJ ~dendum for Property Subje~ to CJ Environmental Assessment, Threatened Mandatory Member$hfp In a Property or Endangered· Species •and Wetlands Owners Assoctatlon Addendum Q Buyer's Temporary Residential Lease Cl Seller's Temporary Residential Lease Cl Loan Assumption Addendum Q Short Sale Addendum Q Addendum for Sale of Other Property Cl Addendum for Property Located Seaward by Buyer of 1he,Gutf lntracoastal Waterway Q Addendum far Reservation of OU. Gas Cl Addendum for Seller's Disclosure of and Other Minerals Information on Lead-based Paint and Lead~ased ·pa1nt Hazards as R~ulred. by Federal t.aw a otllerOlst): - - - - - - - - - - - - - - - - - - - - - - - - 23. TERMINATION OPTION: For nominal conSlaeratlon,.the receipt of which Is hereby. acknowledged by Sell~r. and Buyefs agreement to pay Seller:$ 100. po . (Option Fee) within 2 days.Sft8r the effective date Qf this contract. Seiter ,grants Buyer 1he_ unreStrtcted ~ht to . termtnata this contract. by glvfng ·notice oftem1lnatlon ~ Seller Within 15 . days after the effective date of this contract (Option Period). lf'.no dollar amount ts7aiid as:llii15ptton Fee or If ·euyer tans to pay the Optto.11. Fe.e to _sel. fer with_tn th_e U.me_ .pres_oribed_• tbls__·. Paragraph Wiil not be a _part of this contract and B~f shall _not have:tha··uni'~cted right to t$nnlriate this contract If .tMter gives notice of tennlnidlon wtthln the time prescribed, the Option Fee wfll not be refunded: howev~r. any eamest_ money_ ·wt_·ube refunded_ to .a._uyer! The Option Fee m_ wlD .Q wm not_ be~ to the Sal~ p~ at closing. Time. Is of the essence for this paragraph and strict compliance with the tlme"for perft>rmance .fs required. 24. CONSULT AN ATTORNEY: TREC rules prohibit real estate licensees from giving legal advice. READ THIS CONTRACT CAREFULLY. If y0u do not understand the effect of this eontraot. consult an attorney BEFORE signing.

Buyer's Seller's is: _________________ Attorney Attomey I s : - - - - - - - - - - -

Telephone:----------- Telephone:-------------- Facslmlle: - - - - - - - - - - - - Facsimile: - - - - - - - - - - - - E-mail:

Buyer

The farm of th!& c:ontract has been approved by the Texas Rest Es1ate Convrisslon. TREC forms are tntended for use only by i trained real estate rtcensaas. No reprosentatJon Is made us to the lugaJ vafidity or adequacy of any plovision in any specffic tranMdJona. It ls not fntended fer complex ~-Texas Real Estate Commlssfon, P.O. Box 12188, Austin, TX 78711- i 2188. (512) 936-3000 (hltp:llwww.trec.tuas.gov) TREC NO. 25-8. This form replaces TREC NO. 25-6. !lI. I TAR 1701 TREC NO. 25-8 i Producod with zlpForrnSD by zlpl.oglx 18070 Flftoen Mifo Raad, FIDlctr, M!Ghlgan 48026 www ztpt ngn mm Llmmia i

23 •• • RATIFICATION OF FEE Listing Broker has agreed to pay Other Broker ofthe1otal.Sales Price when Listing Broker's fee Is received. Escrow Agent Is authorized and directed to pay Other Broker from U~ng Broker's fee at closing. Other Broker: Listing Broker: By: By: BROKER INFORMATION AND AGREEMENT FOR PAYMENT OF BROKERS' FEES

other Broker UcenseNo. Usting or Principal Broker License No.

Licensed· Supervisor of Associate Telephone Llcenaed Supervisor of Ass9ciate Telephone

Associate Associate

Aaaress Address

City State Zip City State Zip

Telephone Facsimile Telephone Facsimile

e..maJI E-mail represents CJ Buyer only as Buyers ag~rtt represents Q Seller only QSener as Ustlng Broker's subagent ti Buyer· only t:I Seller and Buyer as an intennedlary Upon closing of the sale by Seller to Buyer of the Property described t11Jhe contract to which this fee agreement Is attached: (a)Q SellerC. Buyerwill pay_:.UsjingJP_d!lcipal Brc>ker U a cash fee of~----- or Q o/o of the total Sales Pri08i ~nd (b) lJ SellerlJ Buyer.will pay Other Broker CJ a cash fee of $ or 0 % of·the total Sales Price~ Seller/Buyer authorizes and directs Escrow Agent to pay the. brokers from the proceeds at closing. . Brokersi fees are negotiable. Broker&' fees or the sharing of fees, betwaen brokers are not fixed. controlled, recommended, suggested or maintained by the Te~s Real Estate Commission.

Seller Buyer

Seller Buyer Do not sign If there Is a separate written agreementfor payment of Brokers' fees.

OPTION FEE RECEIPT Receipt o f $ - - - - - - - - (Option Fee) In the form of _ _ _ _ _ _ _ _ _ ts acknowledged.

Seller or Listing Broker Date

EST MONEY RECEIPT ........=r-1i....~'-*".._......_ Earnest Money In the form of .pm~~:..u..i~....J..;~'11/.,/r\l

Oate:.~'--~~~~~~------- L t •

Cty TAR 1701 TREC NO. 25·8 Produced with zlpF~ by zlpLoglx 18070 Flflaen MllD Road, fra&Qr, Michigan 48028 iwav zip! "W mm

24 • .

PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) • (TAR-1914 12-4-06 12-04-06

SELLER FINANCING ADDENDUM TO CONTRACT CONCERNING THE PROPERTY AT f.R20/{}f.rK /.u,n G Marx Ranch Layez:nia TX (Address ot. Property) A. CREDIT DOCUMENTATION. To establish Buyer's creditworthiness, Buyer shall deliver to Setler wtthin days after the effective date of this contract. credit report a a ver1flcation of employment. Including salary 0 verification of funds on deposit In financial institutions 0 current financial statement and D ------------------ Buyer hereby authorizes any credit reporting agency to furnish copies of Buyer's credit reports to ~.eHer at Buyer's sole expense. B. CREDIT APPROVAL. If the credit documentation descrlbe.d In Paragraph A Is not delivered within the ~cffied time, Seifer may terminate this contract by notice· to Buyer Wlttln 7 days after explration of the time for delivery. and the earnest money wm be paid to ~lier. If lhe credit doc:umentation Is timely delivered, and Seller determines In SeUer's sole ~!$cretlon that Buyer's credit Is unacceptable, Seller may terminate this contract by notice to B'uyer · Wfthln 7 days after eXplratlon of the time for dellveiy aJid the earnest money wlll be refunded to Buyer. If Seller does not tennlnate this contract. ·Seller will be deemed to have approved Buyer's creditworthiness. C. PROMISSORY NOTE. The promissory note (Note) described In Paragraph 4 of this contract payable by Buyer to the order of Seller will bear Interest at the rate of 4 . ?OO % per annum and be payable at the place designated by Sener. Buyer may prepay the Note In whole or in part at any time without penalty. Any prepayments are to be ·applied to the payment of the Installments of principal last maturing and Interest will Immediately cease on the prepaid princfpal. The Note wlll contain a proVlslon for payment Of a late fee of 5% of any installment not pald within 1O days of the due date. Matured unpaid amounts wJll bear Interest at the rate of 1%% per month or at the highest lawful rate. whichever Is less. The Note will be payable as ·follows: Q (1 )' In one payment due after the date of the Note With interest payable Q at maturity Cl monthly fJ quarterly. (check one bOx only) Iii (2) In monthly Installments of$ 12. 048. 64 9 including interest 0 plus Interest (check one. box only) beginning 30 days after the date of the Note and continuing monthly there.after for 180 months when the balance of the Note wilt be due and payable. a(3) fnte.~st only In monthly installments for1he first month(s) and thereafter In Installments.of$ 0 including Interest. Cl plus.Interest ((j\eck.one·box o~ly) beginning after the date of the .Note and continuing ·monthly thereafter for months when the balance of the Note will be due and payable. D. DEED OF TRU.ST. The deed of trust securing the Note will provide for the following: (1) PROPERTY TRANSFERS: (check one box only) 181 (a) Consent Not Required: The Property may be sold, conveyed or leased without the consent of Seller, provided any subsequent buyer assumes the Note. Q (b) Consent Required: If all or any part of the Property Is sold. conveyed, leased for a period longer than 3 years, leased with an option to purchase, or otherwise sold (including any contract for deed), without Seller-s prior written consent. which consent may be withheld In Seller's sole discretion, Seller may declare the balance of the Note

TREC NO. 2S.5 Meck Real Bsute 1845 Water St Kcnvillc. TIC 780"..8 Phoac:(830)2.S7-8881 Fax: Mark Meck Lavcmia Produced With ZlpFormS by Zlplcgtx 18070 Fdteen Mlle Road. Fraser. Michigan 48028 www zip• ng!x mm

25 Seller Financing Addendum Concerning • (TAR-1914)12-4-06 Page 2 of 2 12:-04-06 {/'20 @l'AcJr LA'a (. Marx Bar1M t.pxemta, (Address of Properly) n

to be Immediately due and payable. The creation of a subordinate lien. any conveyance under threat or order of condemnation, any deed solely between buyers, or the passage of title by reason of the death of a buyer or by operation of law will not entftte Seller to exercise the remedies provided' In this paragraph. NOTE: Under (a) or (b), Buyel's liability to pay the. Note wlll continue unless Buyer obtains a release of liability frQm SeHer. (2) TAX AND INSURANCE ESCROW: {Check one box only) Ii (a) Escrow Not Required: Buyer shall fumish Seller, before each year's ad vatoram taxes bec:ome delinquent. evfdenee that all ad valorem taxes .on the Property have been paid. Buyer shall annually fUmJsh Sellar evidence of paJd.up c:aSualty Insurance naming Seller as a.mortgagee loss payee. 0 (b) Escrow Required: With each Installment Buyer shall deposit In escrow wl1h Seiter a pro rata part of the estimated annual ad vaJoi'em taxes and casualty Insurance premiums for ·the Property. B~ shall pay any deficiency within 30 days after notice from Seller. Buyer's fallure to pay the deficiency WUI · be a default Under the q~ ¢ tru$t. Buyer is not re(lU\~ to deposit any escrow payments for taxes -nd lt\$Urance that are ®{Joslt$d with a St.Jperior ltenholder. The casualty insurance must name Setler as a mortgagee to• payee. (3) PRJOR LIENS: ~Y demu1t under any Hen superior to the lien $.$CUring the Note win be a defaµtt under s ~curing 1he Note.

r F'DP, LP Robert Marx

Buyer Seller ~W rrl.c11.f< .,, Debbie Marx

The form of this contract has been a,pproved by the Texas Rest Estate .Commission for use with simllarty approved or promulgated contract forms. TREC rorms are inten~ed for use only by ·trained real estate llcensees. No representation is made as to the legal valldrty or adequacy of any provlslcin ln any specfflc transactions. It I& not intended ror complex transacUona. Texas Real Estate Con'unlsston, P.O. Box 12188, Austin, TX 78711-2188, 1· 800.250-8732 or (!;12) 459-6544 (http:J/\vww~~~stat~lx.US) TREC No. 26-5. This. form replaces TREC No. 26-4.

TREC NQ. 26-5

Produced wllh ZlpFotma ~ ZlpL.oglx 18070 Fifteen Miio Road. Fraw. Michigan 48026 WMJ ztpt "'111 mm

26 • f 89-109

FIELD NOTES FOR A 326.047 ACRE TRACT

BEING 326.047 acres of land more or less, being comprised of the J. N. Stone Survey, Abstract 516, the Benjamin White survey, Abstract 431 and ·117.047 acres out of the G. c. & s. F. R. R. survey, AJ)stract 442, Wils.on county, Texas and also being oom- prisC:td of a 49 aQl:'.e tract des..Prib~d ~s ~Tract l'·'r a 160 aare tract described as "Tract 2 1• and 117. 0·4 7. acres out .of a 321 . 1/3 acre tract described as "Tract 3" all of wh.ich are recorded in voiume 4~.o, Pages 2.09-212 of the Deed Records ~f Wilson · County, 'J!EQCas ~·being _more p~rticul~ly ~escri.b·ed as follows.: BEGINNING at a set stone found at a fence comer for the most southerly corner of this tract, said point a1so beit1g the most southerly corner of the above· referenced 49 acre tract de~cribed as "Tract 1 n and the app~oximate mo·st southerly COX'l'.ler o·f the J. N. Stone Survey, Abstract 53.6; THENCE N 14°02'14" E, 3784,15 feet alonq an existinq west fence line of this tract to an iron pipe found in same for a corner of this tract; THENCE s 76°07 1 18" E, 359.49 feet to an iron pipe found for a corner of this tract; 'l'HENCE N 04°46 1 32" W, 1031.20 feet and N l3°5J.'OO" B, 915.85 feet to an iron pipe found for a corner of this tract; _,. w, 29.98 feet to a iron pipe found in an THENCE N' 76°00 1 46 11 existing fence line for a corner of this tract.; THENCE N 16°13 1 49 11 E, 29.96 feet along said fence to an iron pin found at a fence corner for tbe northwest corner of this tract1 THENCE s 75°36'14" E alonq an existing fence and passinq an iron pin found at a fence corner at 248.95 feet and continuing a total distance of 654.95 feet to a point for an interior corner of this tract; THENCE s 14°23 1 46" w, 364.42 feet to a point for a corner of this tract: THENSE s 76°13'37" E, 4625. 74 feet to an iron pin set and s 29 57' 15 11 E, 61. 20 feet to an iron pin set at a fence corner for the northeast corner of this tract;

.27 ~ . • • TBENQE along the existing southeast fence line of this tract s 5!t"'30':)9" w, 3952.09 feet to an iron pipe found at a fence conter and S 58 0 30 1 52" W, 3566.00 feet to the PLACE OF BEGINNING and containing 32·6 •.047 acres of land more or less.

I hereby certify the above to l>e true and correct acoordinq t<> an ac:tual survey made on the gr9und under my supervision this the 2.4 f:!1 day of October, 1989.

~~

28 f.89.-109

nELD NOTES FOR A 186.152 ACRE TBACT

BEING 186.152 acres of land more or less out·af the G. c. & s. F. R. R. survey, Abstract 442, Wilson county, Texas and also beinq out of a 321 1/3 acre trac:t of land described as "Tract 3" in Volume 420, Pages 209-212 of the Deed Records of Wilson county, Texas and beinq more particularly describe,d as follows:: BEGINNING at an ix-on pin found at a fence corner in the north line of said 321 1/3 ~ere tract f~r the northwest corner of this tract and being s 76 :L6''03" E, 249.63 feet fJ:"om t,he nortliwe•t corner of the above refel;'enced 321 1/3 acre tract and the approx- imate northwest corner of the G. c. & s. F. R. R. survey; THENCE s 76°13 1 37" E, 6552.97 feet alonq an existi.nq fence on sai~ north line to an iron pipe found at a fence corner for the northeast corner of this tract; THENCE s 59°29'51" w, 2089.55 feet along the southeast fence line of said 321 1/3 acre tract to an iron pin set at a fence corner for the southeast corner of this tract1 THENCE N 29°57'15" w, 61.20 feet to an iron pin set for an anqle point in the south line of this tract; THENCE N 76°13·'37" W, 4625. 74 feet alon9 said south llne to a point for a corner of this tract; THENCE N 14°23 1 46 11 E, 364.42 feet to a point for an interior corner of this tract; THENCE N 75°36'14" w, 406.0Q feet to an iron pin found at a fence corner for the most westerly southwest corner pf this traQt; · '.t'HENCE N 14°29'44" E, 1045.78 feet alo,nq an existing fence to the ·p~CE OF BEGINNING and containing 186.152 acres of land ·more or less. I hereby certify the above to be true and correct according to an ac~l survey made on the gx-ound under my $Upervision this the z4.!! day of October, 1.989 •.

29 ~' ·,. ,' ~ .~·... ,

L ,,

:~ 53 8 • ~: : All tb~t. oert.clin tract. or 11arcol or· land oont:dnin; h .b6 cono ot iAe4 lJoin& t4k"1\ out or 'bhG tlorth portion ot Trnct Ho. S, ·(cont.oJ.J:Wlg 1.26 aoroo) ot the · · J\uble lbncb Subd1Tio1on RocordCJd in Volwno 1 t Pago 78 1 n~t, ~tlol'Cla ot ,. ' Wiloon :oount,:r, T~xas ,- boing \hv 11:.mo lcind conTOJed to Bill Mcnornolda bJ" . .. - . , '·· •• ll:t'10t"nt•C'f eontrl\ot. 1n Votr:inu L•nd Board and conir:Lot. ot Do.le .l"\tCOrd - ,:r:· .:~/ · in Vol\U1)') )liO, Pa.go h9ft dood rocordo a\ \fil.oon Oount1,, To~o a.p~ri. ot th• . · X.~ TORSs .'SuoMl\'h lnrr1aon Sunoy No, 109i'"Abotr•ot 19(,, Md 'b.oins 1.10.ro· parU.o"'1.arlJ :.;':~ • > dooodbad ~· follovej · ·:': "'·""--......-', BEt>DfN.INO A~ " 2 inch pi.po rovmd a\ t.hn Horthollat. comor of Dllid Tract. Ho. ~ DIUI\., b~ing,J;.bo-'Southo:io't. coru~r or tract. Ho. h ( con\ilJ.in:l:ng 1 )0 acrcus) loca.tod on th., Ea.st, boundney·line or said SUaannah Larrioon Survey tor 1'ho Northeut COM\ar ot thio tr~CtJ

THENCE S. 1) dog. Si "'5.n. W, 1 60.0 Coot tJ.ong .\ho Eut bQWldarJ lin.o ot ad.4 Sue:mn.t.h 14rr-iaon to & l/2 inoh iron p1n DOt.. tor \ho Southoaet oorMl' ot th1a CRAMTEEt trnc:~J

tT#I SR..• TllE?:C~ N. 76 dog. 09 min.W • ,. .)241 .JO teot, to a 1/2 in~ iron p'-a. oet. !zl the ~ ETM Sr. cen'-'"'r lln., or a. )0 root J\o1ul En.nonient. loc:&t.od on t.ho. \lo:st. boun4al"J' l1ho , or Hid Trac·t.Ho. s, tor tbe ~u\,h"oet. r:omor ot thio 1,~aot.1 Til&HCE H. 1h deg. 0) min. Ea. 1 60.00 t'oo.t Al.ong contor lino or Brl1d )0 root, Ro:ld 1:::1~.,IJinnt aamo boing t.h,.. 'tlaet. boumlo.rt lino or uid Tract No. S to a 2 fo~h pin round at tho Sou1,hvo:st. corn~r or o~id T.ract. Uo. li, and being · · Uort.hw,,s t.; co111~r o! Tr~o.tr No. S, tor the Nor\maoat co~.or ot tll:ia .~~actJ ' ·. 11lf'~C6 .s .•· 76 dog. 09 wd.n. ~.I 32ls1 .1Q. r~o.t .~oni ~h.e North boundAr.r 11-1\o .• or c:,i-! Tract,· S, t.c? tho ~!AO& OF BF.OlNNlttO ~oontd.nin& 4.la6 ai:rel!I ot l.AndJ 4 ••

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30 j. • FDP,LP • l204 ZANDERSON AVE • JOURDANTON, 1X TIJ028

FDP,LP JOURDANTON, TIC 78028

(

31 PAGE 84l10

NO. J.2.03-0101..CVW .... ~

~

FDP, LP andLARRY.FRIBSENHABN ~

:$ - r-:>

,.,, eM ~ c.t) r- -.-, <.'iF § IN THE DISTRICT ..'-o -0 n.,, § § ' o· c...> cC z:::O vs. § 8111 JUDICIAL DIS > :z -1::0 ~(Tl § --.. -to • C'")

§ 0 ~:;x; ROBBRT MARX, DEBBIB MARX and § l>o DlBGOLOPEZ § '° en

MBDIATBD SRITLBMRNT AliBBBMHNT The parties hereto agree tbattbis lawsuit and all related claims· and contmverlies between ibem ate hcteby settled in accontanoe with the following terms:

1. lhe·parties acknowledge that bona fide~ and ~es exist~ 1hem, ad they ·dome io co~ ·and settle all .c1$JB and c;amea ·of action of.any· kind whatsoever wliioh·1heparties:-bavo:aming out of ihe uansac11~n·or oceutreJlQa whidiis the subj~oftbislitigatiob. ltis.tbrth¢~and.agreed1~au•.is·aconipromlscota.~. ; I. c1ailll, amlttothb).s,COutiined ~ sb81ib~ OoiiStl'Ded·as muWuismon ofliabllity.

2. DICb sigoatorywammts and mp:resents that:

a. such peisonhas antborltJto bind the~ or·parties for whom suchperson ads.

b. the claims, suits, righ1s; and/or intele$ts:whicham 1ho subject mattedtereto are ownedby.tb.~partyasserting same.~veuot becnasmgned, txaasfesred or sold, and:Bn' i:ce Qf aJO"·encum~.

3. Thet>artieswill euctite andjilc an Agreed ~,dismissiQg all claims in the abovc- styled and numbered case with prejudice- Each party will bear ·its own costs.

4. The parties agree as follows:

L Plainlifl's pmchasc421.more or less acres fromDefendants for SS,000.00per acre. Closing per existing EMK - October lJ 2013. b. Dofendauts retain his "homestead property" tor period of no longer than 8 yems after Closing.

c. Homestead Property will bo dctcDDined by the parties, based on home and fenced areas Sltfficient to maintain existing horse/cattle operation, but not to exceed 100 acres. Ifthe parties cannot agree on what constitutes Homestead EXHIBIT

.3 1s2· ,p~ ·~5/10 .. ' No. 2306 P. 3/5

P!o.PCl'f.1, 1Jlo mediator 'Will act as arbitJ:atol' and.nuike the . . .~OIL Dch.d•' use ofthe Homestead P.P>pert.y will. not umeasullllblr restrict PJalndflit use oftho propmJbeJsigpmdmal. cl PlaintiflB shall have tho exoll18iw option to pmdtase 1U Homestead Ptopfl1¥, at the above stated price, iiJr a pedoct of t20 days fm.Dl tbo cadier or. (l) wr1ttoJl notice flom tht J'leimdant, (ii) tba death ofthe 1-smvi"1ngI>efeQdant,

(iii) or the c:lpiratiua of8 .Yo8ES iam.closlna·

5. Bloept for1ho agrcaneutssctforthhemn.1hcpmtleshcrebyDlease, dilobmge, aml fo.wvcrhpld1heotbet:hmri1~tom1n1aml.all.claba.s..~~s,or~bown orunlmowa.Jixed or contip. ~.ot~ whether oruot.8$$1:rted in thetbow caao, as oftllla c!ato._1ma11JJ'h .or ~.to :the eve.ms.a'.~ :WlliCb am'IU. au\U'1Ct .-or~~ ~~xdeaselUDS ro.fhp:lxufitof'all~,.-,.~ ofticea, d1tecton. shareba1di:m, .p<nm, . _ assJaos. •Uaphepm!eatativea -Of·1hc pmtla ht.reJo. 6. Counselfor dk M1110 Shill de1lver drafts of~t\mho:dowm.e!ds·to be f- ~ illommeo1ioA wttllibij·i=temnUo coumelfi>r1ba ofa:padits.Jiarcto wl1bln 14 'f9 U.,S.ftomtha.datoherc0£ '111e.padie$ 1114'tbe.fr counsel ~1o ~=•eachodqdn1b.o dtafthls and ·eecntion ofwQlu1c1&11oual ~ aa arc·msouebl.y requested: or required to imp1emmtt the poYlai.cma ad splI1t ot·ihia Sculemont ~et, 11\lt~ .a additional~~panteacou&un~thfsisa~dlraentspqmtasoontenJPJateAt by Sectlon1S4.071 oftbeTcuas ~ PJaotic»1Ul41anedles Code.

7. tl\if S~Aatccmentismade-pedbmaahlain. Wibon.Coiloty, TexaB, ami sball 1'e.eoufmi:4 m~-.ih the laws'of,jm, 8fafe ofTexas.

8. Ifoneormmedjepatcs·adse'Wlthiegardtotheintetpresta1ioaaad/orpedbmmnceof thls~orayofitspr,avlskms.inolucDD&thebmofibrllu:r~:io·be~1he ~·aaiectotmtMrm~~:man~resolvesam.ewith'lhoJDaS·J.Smitb,1beMdator, 'Whr.m1itated th1s settJ1.111om. 9. Although ta mediator has pmvideid.abasic outllnc offhia:Sdanent Apsem.entto 1hepaltics'·~· a.comtesJtofacffitd.othomwresolutkm.oftblsdfsimlo,.~padiesandtheir cwnselhm·thorougbly.nMewecl such outlfnOindhave, whemMC:OSsm)'. modifiiclit to confonn. totbeftlluhementsolthelr-apeamant. Allslpetnrl•t01hisSett1==t.Agreem,eutheroayl\llcae theMedimor:&mn..,,-..clilltespoDslbilityarisiogfromthomst\lqofthls·~Agrecmumt, and''" si&QiDg ~ Settt-.fd Ap:cmeDt 8Qlcnowledp that they, tbeiJ' .attomeys, have hem actvlM4bytbamediatotm'W!ltlngthatthisSettlememAgreemeutslaot44be- Qf

by COUDSC1 bt8ore execndiug 1be Aaiecment.

183 PAGE 06/11.\

10. The~representand wammtthat: (i)theyhave carefullyreviewedthis Settlement Agreement;(n) they have CC)nsulted with their attorneys concmingthis Settlem.ent.Ap:ement; (ili) any questio~s tbatthey·havc.pertabUng to this Se#lement Agreement have been answered.and folly explained by1beir auomeys;(iv) th.oiniecision to executo this SettlementA.greemcntW8$not.based on any statement or repxesen.tation, .either wiitten or oral, made by 81J1· person or entity other 1han those statemmts conuPn.ed in tbi$ Settlement Agreement, and specifically was not based on ·any statementorrepresentathmmado by81J3opposingpartyorits counsel; (v)tbis Settlement~ constitutes the entire.agreemem and undel'Standing between the parties; (vi) ihey have.entered into this Settlement. ~ of their own free will; and (vii) .all prior and contempotaneous agreements. ·understandings, representations and statements, whether written or oral, are merged herein.

Agreed, this 21'11 day of A:Qgust, 2013.

DEFENDA.l\ITS:

Robert Marx

DebbicMmx

(

184 PASE :87110 , .' No. 2306 P. ·415

10. 'lhcpattiesmpiead81ld~(i)theybvecazefbllym1ewedthl9SeUJement Alteement;(ii)tbo1.Juwo~·witb.tbdrettomcyseoJJceminsthisSetflem=t~(iii) ayquatious1blt1he1bave~to tiaSettlemelltApementbavebeeo.ansWlleClandfiiUy oxplakied.by1he&attomeys; (iv)1heirdecislcm.toaecamtiaSd:tlemmtAlreemellt.wasDOtNsed on• statoocm orJtpese11lation, .eltber wdttm ~.ont, madoby 8111 pmon.arentlty other1baa those abllonwh comaJnad:ittbis SettlemeDt Asrecmeot,. and apecilically W$$ llOt bacd. muuy staralJllltorrepresentatiomne.M'br.aDJ~orit&counsel;.(v)tldsSettlemem~ CODi.1ltutea 1bt entbasreemezitachmdiafamUng~tl=parties; .(~} tbef bavo eut.erea into fbis Settlcmcat ~ of their ovm flieO Will; an.4 ('Vli) aU pior .am\ ccmtempmauous agremntml$. undatandhtp.tlpIIBeDtBtions.d.~.whether written ot·o-.1, .me.~ hetetn. Aslte4, this 21"'· day 6fAuault, 2013.

PDP,L'P

Name:_.____________________ By:~-------------------- ~----------------------

DDDmANTSs

RJ* %.w.J •l2rb t-9 t-Jo ~

185 PAGE 88/10

APPROVED AS TO FORM: LAW OFFICBS OF OILBBR.':f T. ADAMS 1855 C&lder Ave. at third Street P~ 0. Drawer 3688 Beaumont, Teos ·17704-3688 (409) 835-3000 (409 .32-6i62 .ax)

.Adams.«m (IJtl~M't T State Bar )'To. 00790201 ATl'ORNEYS'PORPLAlNTIFFS

TIIBLAWOFFICB·OF.OILBER.TVARA,JR. T.=Ariel House 8118. patapo~.DJive San Antonio,. Texas7~229-3218 (210) ~14-6400 (210) 61~01. (Fax)

By;.._____________________ ~

Gilbert Vata, Jr. State Bar No. 20496250

ATTORNEYS FOR DEFENDANTS

186 APPB.OY.EJ> AS TO JORMl LAW OFPlCPB OP GILBBRTT.. ADAMS llSS ·~Ave.at tbid·Stteet P. O~Dn.wer3G88 Bea\mtont. Texas 'n7G+o3688 (409) US.3000 (409) .832-6162 (Pmc)

'B1:.---------------------- Gt1bcrt T; Adama,·m State Bar No. 00790201

ATl'ORNBYS POll PLA1NI1PPS

'llmLAWOmCE OP GJLBBJ.TVABA, m.. The&ielllause 8118 l>mapoJntDtive Sm~ T8)liS 78229-3218 (210)6146100 (210) 61+6401 (Pax)

~~~· State BarNo. 20496250 A'lTOBNBYSFOllDBP.BND.ANTS

(

187 I{ •. ·.·!!

CAUSE N0.12-03-0101-CVW ) 'FDP, LP and LARRY FRIESENHAHN § IN THE DISTRICT COURT OF § . vs. § · WILSON COUNTY, TEXAS § R~BERT MARX, DEBBIE~' ET AL § 81ST JUDICIAL.DISTRICT.

ORDER GRANTING PLAINIIEFS' MOTION AND APPLICAIION TO I

CONFIRM ARBITRATION AWARD and CONFIRMAIION OF ARBITRATION AWARD

On this day, came on to be heard Plaintiffs' Motion and Application to Confirm Arbitration

Award. The Court having read the Motion, including the opinion of Tommy Smith, the Arbitrator

with attached Exhibits and other evidence attached thereto and any response made or filed by

the Defendants, is of the opinion that said Motion: and Application is in all things meritorious and

should be granted.

The Court finds that the parties did arbitrate Paragraph 4.c. of the Mediated Settlement

Agreement dated August.27, 2013 as agreed by the parties and Ordered bythis Court on or about

November 14, 2013. It is therefore

ORDERED, ADJUDGED and DECREED that Plaintiffs Motion and Application to Confirm

Arbitration Award attached hereto as Exhibit A is hereby GRANTED and this Court hereby

Accepts and Confirms the metes and bounds legal descriptions attached thereto, including

Exhibit 2 to Exhibit A that legally and accurately describes the metes and bounds description of

the "Homestead Property" as that term is used and referenced in the Mediated Settlement

Agreement of August 27, 2013 which describes ~e one-hundred acr~ tract which Plaintiffs shall .

have the exclusive option to purchase from Defendants or their legal beneficiaries based ·on the

terms described in Paragraph 4.d. of the Mediated Settlement Agreement of Augus~. 2,7, 2013.

It is furth~r ORDERED, ADJUDGED and DECREED that Defendants, ROBERT MARX and

DEBBIE MARX, are jointly and severally liable for the costs of the Arbitrator's fee in the amount

EXHIBIT

185/51 /;0,g(p 1 I •r 353 of $1,800.00 - the amount of the invoice submitted by the Arbitrator - which this Court finds to ) be a reasonable and necessary fee, and are ordered to remit payment to the Arbitrator within

twenty (20) days from the date of this Order;

It is further ORDERED, ADJUDGED and DECREED that Defendants, ROBERr ~RX and

DEBBIE MARX, are jointly and severally liable for the costs of the surveyor's fee in the amount of

$11,539.43 -the amount of the invoice submitted by the surveyor -which this Co~rt finds to be a

reasonable and necessary fee and cost of arbitration, and a.re ordered to remit payment to the

Plaintiffs within twenty (20) days from the date of this Order;

It is further ORDERED, ADJUDGED and DECREED that Defendants, ROBERT MARX and

DEBBIE MARX, are jointly and severally liable to· Plaintiffs for Plaintiffs' attorneys fees' in the

amount of $17,202.50 and expenses in the amount of $486.00 which the Court finds to be

reasonable and necessary expenses associated with the time and expenses necessarily expended

in connection with the conduct of the arbitration and are ordered to remit payment to Plaintiffs

within twenty (20) days from the date of this·Order. The Court finds that $350.00 per hour is a

reasonable attorneys' fees rate for the areas in which the attorney services were provided for

those services provided. The Court further finds that it was reasonable and necessary for

Plaintiffs attorney to expend 49.15 hours associated with the arbitration,. induding the in-

person meeting, multiple conferences, working with the surveyor at the arbitrator's direc.tion

and presenting of this Motion.

It is further ORDER~D, ADJUDGED and DECREED that the Award of the agreed upon

Arbitrator is confirmed and accepted in full by this Cou

SIGNED on this the~ayofMay, 2014.

Flied i ·.,.__ Day of ~A ,;. ?-0 t L(

Deborah 7~.SMA e

354 LAW OFFIC!B OF

THOMAS J. SMITH ) 112 B. PBCAN. SUITB 3050 SAN ANTONIO, TEXAS 7R205-1Sl2 BMAIL: smjth@tlsmtthlaw.oom WBBSITB: www.tismithlaw.c;om TBLEPHONB (210) 227-7S6S TBLBCOPIER.{210) 227-864$

April 14, ·2014

VIA EMAIL

Mr. Gilbert T. Adams~ ill . Law Offices of Gilbert T. Adams 1855 Calder Ave. at Third Street P.O. Drawer 8688 Beaumont. Texas 77704-3688

Mr. Kirk Dockery Law Offices of Donaho & Dockery, P.C. P.O. Box459 Floresville, Texas 78114

. Re: Cause No. 12-08-0101-CVW; FDP, LP and Lany Friesenhahn ("Buyer") vs. Robert Marx and Debbie Marx ("Seller")

Dear Gilbert and Kirk:

This letter will constitute the ruling by the Arbitrator, pursuant to Paragraph 4.c. of the Mediated SettlementAgreement, datedAugust27, 2013. This ruling is limited to a determination of the exact location of the 100 acre tract being retained by the Seller.

The Arbitrator has considered the submissions of counsel for both Buyer and Seller and makes ilte following~:

1. TI1e 100 acre tract retained by Seller· is shown on Exhibit "l,s' attached hereto, and more particularly described by metes and bounds in Exhibit "2" attached hereto.

2. The property being sold by Seller to the Buyer, shall consist of417 .335 acres as shown on Exlnl>it "1" and more parti.cularly des~ed by metes and bounds o~ Exlnl>it "3."

3. All othertenns and conditions in the MediatedSettlement.Agreementshallremain the same, excepting only that the earnest money contract closing date shall be at the earliest possxble date. ·

PLAINTIFF'S ~BIT ) April 14, 2014 Page2

4. Costs of this arbitration. including the Arbitrator's fee, shall be charged to Seller. A: statement is-enclosed.

Gentlemen, I urge that you get this matter closed as soon as possible, The parties ha"e been in a state of "limbd' for long enough.

Very truly yours,

ThoillaS J. Smith C:\t>ATA\T.JS\1.2800.1879\A'm'l.2 LTB.WE'D

Enclosures )

356 ~

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rl;il~li =-ill ) f ~gjl I a =11:1 ct .. " ~ :II l:j

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z6 ra en 5: t-

' ~ . '/i i ) lOOo Cwtlral P'Nkw~y N.. Suite lQO TEL 2104~4 5511 SiUJ Antonlltt.T~~ 782J2·,050 FA~ 2·i6494 ·5519 AumH DALLAS -uoumm BRENHAM SJUI ANl07UD RO$~flBiRG METES AND .BOUNDS COLt.EllE ST~Tll»J Tff£W001>!!&~.~ DESCRIPTION OF A 100.00P .ACRE T.RACT OF LAND

A..Meteaand ·sounds description· af'a 1CG.OOO·aere :C~urface: area - Grid Area: 99.~~ ·aeresj tract otland situated lh'the Benjamin White· SUrvey, AbStraGt No.431 and the J.N. SlOJ.'le SuJVey, Abstract No.&1'fi! .in WUson·CounlY., Texas; -COAtalning a p.6rtion·of ~ets 1·and 2 described ln fAsb'Utnent ~ l\!.f'nr,:;(?laqa_ ~k MarJt Sr•. reoorded ii \loJtime A20, Page 209 of the Wilson County Lleed Recof.Cls~ ~ini!l9·& po.rtfon of that oedaln G.OOO·acre traet·.d~cribed:in instrumenf·.to:Rober.t R. Marx ree.orded In V.Oll.rme.613, Page 199 of the. WllSon County Offtclel PUblfc:R·ecords; containing a porUon Of- that Gertaln 3:26.047 acre tract described In Instrument to Robert R. Ma~ recer-dad fr..V.olume. 732, Pag& 317 of the Wilsen ec;>Lmly Oftfclaf .Public Record~! arid 0erng ·more particularly described as . fonows:

COMMENCING ai a 2.1nc:h Iron .Pl.Pe :tottnd mar.king the. nQrthern"fflost comer of ~id ·32e.047 .acre trac~ and mafldnf) 1h.e western.most oomer:.of that certaJn $.O S?re tract dessri.b.~d Ip in~tr.ument·te Raymond L. Budge recorded m. v.orume -7-85,· Page 711 of the Wilson Cbuoty· Officfal PubJfc .~eCQm; Jtnd markJng tlie eastern-most eon:imon oomer:of"f.racts 4 and'.5 of Rubfe.Ranch SubdlVfslon. plat.cf w.hlth fs·r.eco~ed In Voltilne i., ·Pase :re.of the ~County. Plat Records;. and marking t.h~ nertheastern-cq.~ comer. pf Marx Lan& {60•fetehvlde p~te lane~ Votume.521; Page 5S7 of .the Wllson·~ounty Dee~ R~rds):

T-HENCl51 along the ~astetlV end ofsaitfMam.Laoe tcliGtthe followjr)g:tWo(2):Qdur:ses and (Jistances:

1. south 1.6°17'19° ~est, -~0:~9~ feet to. a 1-lnah. lto.n PIP~ foun~ marking lhe northwe~em-most common cornarof the a~lti .5.00Q aore·and.32$.°'l7 acre tracts:

2. South 14Q1·6~9u We.st. 2,9.9.7 feet to.a:1/2-inch iron rg~ found· marking the southeast comer of said Mar.x.'L~t)e ~ct and ~e ~JNT' OF QEGINNIN<3 of th~· her.efn described bet of land;

THt='NC.~.. ~olltb 15°59140 Eastr along tlie eastedy .extension of the· GQUlherty ooundary of said Matx 11

Lpn~ trac;t; ~ ~Q teet pa.S.\tjng· the common boundary ot·ltie aforesaid. 5.o.oo aere and 326.04Tacre tract$\ P.~tinulng for a·totat dlstaoce of 60~0Q.-feet to a point for-corner. ·

THENCE, South 07°45'11" East. 4202.24 feet to a point :for corner;

THENCE, alo'fla an ·alignment running 10 feet from1 and parallel with, the boundafY of the Cilfo"m~tfpned 326;047 aore tract)· the following foui:(4) oour-ses and dlsfanGes:

·1. Soul~ 58d33!42" West, 2-205~2 feet to a point.for comer.

2. North 14°11'501\ East, 1~~-3·3 feet to an angf.e pofr1t 3. .North t3°57'4fi'l E.pst, 1.8.04..95 feet to an an~fe point;

4.. Norti1140.10•03" East, 1457.79feetfo a pplntfOrcomer.

JKS ~fn~rloo- Prop~d Marx ~~ind~rT.ra~ W - ·100.000 acres Job No. 80762·008-00 .. Jslll.laty.9; 20-14.. P.age 1'.of 2 Smart E.ngtneorlnu.Smart $nhttlvtJ5.m .www;Jo11es.~tter>cllm

358 ).

. . THENCE:, ~sf.ttt .7.69d9'5711 West, 10.00 feet.to a point tor corner situated.la the-westerJy baundary of-the aroresaid 326.0:4 7. acre tract and ·easterly boundary of Tract 6 of-aforementioned Ruble Ranch Subdivision;

THENCE1 along tJ1e easterly boundmy of Tracts e and ·5 of said Ruble RaftCh StibdMsion th.~ foRow1,,9 two(2) courses.and distances: ·

1. Norih 14°19''03° East, 186.83 fest·algng·the tt~stEJrfy boundary of thatcertafn 16.:979·a9re '1"ra~ to Two" des~il$d In lnsirurn{!rii ~~nee frfe~h~hnJ -~tux. reoorded io y.9J1:1me 1623, .P.~ 300 of lf\e Wilson C~urtty::Offf

~~ North 13'3!53'Q7" .Ea~t. 1·8'f$2:-s~ ~et along the ea~erly'btjup·d~y ~ salc:f. te·..979 .a-cre "Tract T.we>0 and·aTong U,e ~i.lSlerly boundery of 15.893-acte-•f'ftact a11 ·and 11.1~~ ~e "Trapt·1"'tt~erff;>t::ld'·ln Instrument .to Ooug~ D~ Wat~n; et wet re.cQrdetJ f11 VOr!Jme 167Z ~ge-286 of the Wilson County Qfflala1 Pubtfc R~otds~·to the POlt-lT OF BEGINNING, containing 100.0BP acres of land Jn Wiison. Cpunty, Texae as shown-on drawing fllet.f under-Job No: so752~ooa ..oo In the. ofiice of Jones & Carter. Inc., Si;mAntonlo. Texas. · · Note: Alf bearings an~ .distance.~ refe._en~·.hereJn are Texas Stat& ~Jane C.001'4l~Je ,System grid, South C.~al Zone fNA9'8~)~s estabffsh® (>}' .GJ.qb.al P:e>!iltfonlng Systam-.~GPS). The grid tQ. surij\ce &Clale ~otor Is: 1.eoo1e1.

JONES'& CARTER, INC..

WA:12---~s Michael A RemaRs .Regfsteied Po!>fe8'1onal land StRVeyor #4657 Sfgnature Date: J.... "I .. ~at j

JKS Erigkle~ln!;f- Proposed Ma~ Rt!l'.nl:!iritterTra~ •p;.· -.100.:QDO acrss Jab No. SQ7-5-2.-0D8.:00·· January .e.. 2014 • Page 2: of 2

359 ). AUSTIU DALLAS ROUS~ BRENffAU

M~ES AND f30UNDS ·SARAflTONIO ROSEtlBEftG OE$¢RIPTIQN 'Qf. 'A Cot.LEGE STATIOt~ TICE \~Dl.All(>S 417.aGo AC~E fAACi OF LAND

1\'Metes ~ BQ~3--deswiptto.n pf a:f4.17.~S5·~~·(Sq~~~·\a-·~ciA,rea: 4171201 a~rf!s) ·\raqt-ofia·r;ui sJiualea .fn the G.O. &.S:F.RR Survey. SSOtlon..S,.Abstraet·No.44a. the·tl~Jamin Willie S'!wey•. Abstract. No~431; and Ute J.N. Slone sufv&f, ~.a~t No;r16i hi .W~ c~untY, Te}(S$; contaioina a Parflan o.f T.rac1s· 1, 2 and 3 de.scti~ ln·tn*IP.Jment to Mr-s. GIFtra JakSlk:Manc. Sr~ .recorded in VOiume 420. Page 209. Qf m.e Wlf6on· County· Det;?d ~.~90J:d.~; cpti~inlng a smai1,poriJon e>,f tttat certain 5.000-ac~ tr~GI l,lesc~lb¢. In ftJstumeht. to. Robert R. Marx recorded ~~ Volu~e 67-$, PaQe. 7.99·otth.'i' Wilson QOuntS' Offi~~I PubJIC Records; ~onlalnfrtg a portion of that celtaln 326.047 acre tr.act described In inslrt1ment to-Robert R. Marx: reoorded'in Volu~ 1~. Page 377 of the.wnson Count.}' Offfcfal P(lbllc Recottls: ~c:I belag·more.~ttfculady descillred ~s follows:

BE.GINNING at a UJJdrlr.~ pip& round marking thenOlthern:-most-.t=otn$' of eakl.326.0:47. acre traet1- and markllt{i."1e ~stem~~QJn cor.•·of1hal ~~tn:iM1 ~ ~Qt.d•~ '" instiumentlo f,laympnd L Bllelge of tfte WllsQn·C!Jt'.l)lY. OJflclaf ~l~Rti~rdsrarJ~ m~i!l9. lb~ o.~s.leU'·moat 'ffslCOr~ed irf ~hltr.KI 7Jlti, ·P.age 711 corrunbn·con1er ofT-r.act8:4 and.() of RL:lble Ranch Subrfivlston,_.plaf of which Is recGrdud: In YG?lt:inre:1, Page ·79 of the WHsan County P.lat Recdrds~.tmd maiklng_ lhe·nartheastemrmost=oorner of Marx1.ane (60•feetwlae prh.rate 1ane, '.(olum8:521, Piiat;t·~'f. ~f·th,e Wll~ti c~untyt>~ Re~);· safd e.s.a:tNNtNG·potnt;havJng T~ Si&te. Plane:Grld'CQb.l'(Onates: . North 1~65f.2.49..09·feet. East2;2S3,408.68 fe~t;

THENCE. along the 'bG\lfldary of eald G;O.~cre .t~et tf\e fpB~pfJ tw~(2) C9urse.s and dla~~

1. Soufh 1.5°291381' Ea~t. M&J'~ feet~P ~ 112t=l9~ch;f~ rocl'foond·f~r ~rn~

2. NCJrth.14°'.~2i1 ~ Ea~i) 104S.67 re.P.HQ a 1/2•1nch fro~ ~~·~und f9r .cgr:ner·m the·,9µ~fllMlsterJy boum:!aiy m·Let 88 of SoS'eWCiod .Stlbdlvislon, .lfnll 21 platef·whl~ is temr'ded fn Votum~9. Page 22 of ·tlle"Wd'son County ~lat· Reco'rc{s; THENCE, Stnith 7'6~1193611 East, 6551.79·feet along tlle..SOUthweatetly boundat_y of sakf·R~sewbocl SUbdivis1on.. Unlf 2 ~net Ro~ewo~ Subdlvtslon. U~lt 3 {Uol\lfll9 9, Page 60, ·Wlfson ·eountv. l?I~ ~ds), and Rosew~od.~Ub.dMs'ion, ~nf~:8.(Votume-9, FiaDQ 7P, WftsQn Ootmf1, P.f~t'~prtl~ to~.:1.-fnch·Jron:pJpe foun4 marldng the. n'111ham·m'Ost comer-Gf that. certain 632'.072 acre traet descrlbed·in Instrument.lo Yates.Semmes land end. Catlle Co. raeomed in Volume 1.10, Page 672.of-the·Wllsen·County OfflclaJ Pubtia:ReeoT.dSi

THENCE, .South\69~2'02" west;:along lhG northwastetty:qe.unctary 01 $ald:632.on acre tram~ at 2089•.30 feat p.a~l119 ~ ~~·liJtti:~QJJ..r~ (~tt·~ the ea~in:~st·~rner .pf th"•~for~entron~ ~a~7 a~ tta~~ contt.n6ln1;f4J1 a to~ d!Stande Of '(i~ !~trte.o.t tQ '8. 1-tn9h. lt~JJ: (Mle. to:und ~tyg".lhe W•fe.m·m.0$t40.mf;!f" of •l~·~2,o~ a~. tra!?f.arlQ noliJbefn·m~ .cor~ of.th.e ~~r:of thatce~ ooo,oo.a S

THENCE, South 5.'8°3.3-'42° West, 35s.t.43 fee.I along the~nor.ihWe.ste.rl.Y. .bo.uJidary ohaid 6QP.OD3 aete·tracf:.to a tracl to-a rock folmd:neat a·f~pee po~t ~~in (be:$~ut.he.as~cly bo.Qn(;fary· of-Wo~ands·SubdMsJon. pf(lt Qt wl1Jch ~recorded fn.V91ti1me·11, P;ag~31oflll&wllson9ountyPlcit R~drd.a;

JKs ~tneerlns- Pr.Qposed·Marx Oul TrS<:i a• - 417~·'Screif 0

Job·NO, $07.52-00.~00.- Janual1f 23. 2014 ~ P.age 1 of~ . Sm~rt Ei1glneetlng.Smar.t S"Oluti11ns.'~ www.Jo BOscarl.dr.aom

360 THl:NCE •. ~long the~•~rly l)ouh(fary of-afo;erilent{OJ'led RubfeiRanch SUJ:Jdivision, tbt followlr-ig:tt.lrea(G) colirs&s ~nd -cn~anGes: 1. Nor.th ~~0 11 'SO"· Ea$t; elong the easterly boun~ of -~1d·Wo0dland6 ~ubdMstQn; :8t '60.80 feet .passinfJ .the centerllae OfWoodlands DiJvs .(70 feet wld&).; tontintdho .fQr ~ tQtal ~stance of ~33.Bl'feet to a tt/2.;Jnch tron tadfcmnd markfr\g tbe:Aortheast comer of said Woodlands :SUbdMston and the :Seiutfieast CQrner .9{ Coppe.r er.eelt·es~~. VJ)~.~. ·pt$! of:whlcb ls·recorde.d In Volume '10, Pagell3 Of the WQson. Goilft!Y Pl~t:ReeOras;

z. Nnrth 131151145" Eas!~ .aleng. tfl~ ea~te~y "°undaty-of.sal~ ~bpper-Creek Estates, Unit 2 and a~ng:the easterly·bounElary bf an '\rnplalted aread owned bf P.auJ·QJe~eland (Vo1. H4~. Pg.3e2~ WC.ORR) par plat of-Copper Cieek Estates, Unit a recorded IA Volarne 1·0. Pase 1.00 of the· Wilson Counly Plat· Record&; at 854.fi f~t.:~tte.Jng·tne centerline of Copper Creek~ (:70 feel wlctEI): conttr:1uing for·a total distance qf 1804.91' ~J to a 2-llich pipe found rnarldng \he eall•-!l1Qsf common comer of Tracts ~ anct 1 ef:afeFeB.ait:f Ruble RanGh Su~dM~on; ·

s-. NQr.th 1·.er.1.o~a" East; 1,457.91 ~t; a!tm9 the ea~ertv. bpuri~ of·aJl ~n.P1!!ttferJ ·s!i'JP oJ i~nd (approximately._1.5 feet wlde1 P~I Clavef~nd,.etux;VoJum41~9~. Ppge.1~. WCQ"P.R) adj91!J1ng the eaatedy llounde.1¥ Qf .B.ri~ W~rRan~h SubttNlslon. plat Of wtiith ls.recorded ln Votume 11, Page·14 of the Wffson ~ty P.lftf ~eGQrds•. Qhd alp~ the e•rJY. ~~a.tY.Of ~!5¢' ceaaln 16.97.9 acre·1 T.ract. 'TWO" de~crlbed~ inst~m(W,lt to.t.awrence·F.rf~nf!hai, ~tux •. r~pP1ed in Volume 1623~ Pase 3S$·o.1 the·Wif~n·CouA1y Qffimal Public R~~ds, to a poi~t fQt"COrner:

THENCE, along the boundary pf a propqsed ~ 00.000 ac~ fen:talrider tra"Ct; lhe following. seven(7} COLi~ ~~-. crlSfaflces: .

1. scruth .75°4.9'6rt East. 70.00·fset to a· point for comer,

.2. .SQutb·~14~1o•os'l Wesf, 1451.79lsat tora pr:ilnt for corner. ·3. So.tith 1:3-~51~" West,.1lJ04.9.5 feet to :a potn.t tOr corner; 4. South 1A~f1•50n West, 162.33 festto-~a point for ooriMr;

6. hlorth-58°83'42!! Ent. 2206~ 1Meet te a Point for eoin9r;

.a. Nortt.l 07°45'31 '!West 4201.87'feet 10.a,,polnt ~comer.

1, N.~$,~e·aa"West,.eo.o.o fe,t to. Q 112-:tnc~ lrqn:r.ctd".fQund.m~rking fhe eastem.;moSil comer of ..,Tmot.11-"·deiscd~d in lnsfilln.tant.f9·f:1ouglas Q.'Wft1S~.. ~we~ ra.eorde

Tf.IENC~. Norlh 14°16'4911 Eas~ 29.97:f~t along the easterly end of said Mar~ Lan_e ttaoHo a 1·il)ch ffOl'.l, pip' fOuf.\d niarkioQ an angle- polnl'i same being the rior-them·most corner ef the -afttresaid 5.ooo acre trarit;

Jf(S. Engineering - Propll>sed Mal'}C· 9ut tract ag• :.._ 4tl,3~5 arNe& Job ~"· 80762·008-:00- Jtinyary 23, 20.14 ~ P~e 2 of.3

361 )

THENce., Nmrth 16°17'19P E~t, ao;05 feet..elona the·~S\efiyencl of.ellid Marx· Lane tract te the Pciltfr OF BEGINNJ.N~, ·cootalnlr.sg 417.,33,5:acres of jand. In ·Wilson County, T.exas as.shown on·drawlng filed under Job Nol ·so752-GO~OO In th& offlce-1>f Jones lie Gart~r. J~•• ~arr~tqntot "fexas-. f'Jote: All ~earfnga an4 _di$lance8 re~d herein are :r~s .State .P.iane Coflrdinate.·System.grfd! S.outh -Central Zone. (NAD!~3) as estabHanett t>y Glob:al P6sition\ng SY.stem (GPS). The grid to:sLJttace seiife factor i~ l.-000181. ·

.J.ONe'.S & CAArt;~ INC2

vtti:JAJL.~ Mic;hael A. R9m~ Re_glster.ed P.rof. .tonaJ. Land Sutve:yQr tl46.57." srgna~W'S· Datei. l-. 2-3 .. 7,IJ I±

aa JKS EntJloeertng~. Pr9pc;tse~ Mane Oyj"Tra9J -417,335 .aaes 0

J.ob No. 80752..00B-'GD-:- Januacy 23, 2014 • Page·S: of 3

362 Law Offices of Thomas J. Smith 112 East Pecan Street, Suite 3050 ) . Telephone (210) 227N756S San Antonio, TX 78205· 1512 Fax (210) 227-8645 Tax ID XX-XXXXXXX

April 14, 2014

Invoice submitted to: :Mr. Gilbert T. Adams, m Law Offices of Gilbert T. Adams 1855 C81.de1 Ave. at Third Street Beaumont, TX 77704

Mr. Kirk Dockery Law Offices of Donaho & Dockery, P.C. P.O. Box459 .Floresville, Texas 78114

For arbitration services rendered in connection with the arbitration of FDP, LP and UL.~ Friesenhahn vs. Robert Marx and Debbie Marx; File No. 12300.1879

Professional Services

) Hrs/Rate Amount 4/14/2014 All fees incmred by Arbitrator since January 16, 2014, including: 6.00 1,800.00 Various COilll'.Jlunications with counsel, correspondence and emails 300.00/hr with counsel and review of submissions and prior documents.

For professional services rendered 6.00 $1,800.00

Balance due $1,800.00