Sandra Saks, Lee Nick McFadin, III, and Margaret Landen Saks v. Broadway Coffeehouse LLC and Marcus Rogers, as Trustee for the Saks Children Trust A/K/A ATFL&L, a Texas Trust

Opinion

ACCEPTED

04-14-00734-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/6/2015 6:02:12 PM

KEITH HOTTLE

CLERK

NO. 04-14-00734-CV

_____________________

FILED IN

4th COURT OF APPEALS

SAN ANTONIO, TEXAS

IN THE 4/6/2015 6:02:12 PM KEITH E. HOTTLE

FOURTH COURT OF APPEALS Clerk

SAN ANTONIO, TEXAS

_____________________

SANDRA SAKS, LEE NICK MCFADIN, III, and MARGARET LANDEN SAKS

Appellants

vs.

BROADWAY COFFEEHOUSE, LLC and MARCUS ROGERS, AS TRUSTEE FOR THE SAKS CHILDREN TRUST A/K/A ATFL&L

Appellees

_____________________

BRIEF OF APPELLEES BROADWAY COFFEEHOUSE, LLC and MARCUS ROGERS, AS TRUSTEE FOR THE SAKS CHILDREN TRUST A/K/A ATFL&L

____________________

TO THE HONORABLE COURT OF APPEALS:

NOW COME Appellees, BROADWAY COFFEEHOUSE, LLC and MARCUS ROGERS, AS TRUSTEE FOR THE SAKS CHILDREN TRUST A/K/A ATFL&L, and present their Brief of Appellees, and would respectfully show the Court as follows:

IDENTITY OF PARTIES AND COUNSEL Party: Counsel:

Landen Saks Philip M. Ross Sandra Saks State Bar No. 17304200 Lee Nick McFadin, III ross_law@hotmail.com 1006 Holbrook Road

Appellants San Antonio, Texas 78218 Telephone: (210) 326-2100

Broadway Coffeehouse, LLC Paul T. Curl State Bar No. 05255200

Appellee ptcurl@csg-law.com Brittany M. Weil

State Bar No. 24051929

bmweil@csg-law.com

Herbert S. Hill

State Bar No. 24087722

hshill@csg-law.com

Curl Stahl Geis, P.C.

700 N. St. Mary’s Street, Suite 1800

San Antonio, Texas 78205

Telephone: (210) 226-2182 Telecopier: (210) 226-1691

Marcus P. Rogers Royal Lea, III State Bar No. 12069680

Interim Trustee royal@binghamandlea.com Bingham & Lea, P.C.

319 Maverick Street

San Antonio, Texas 78212

Telephone: (210) 224-1819 Telecopier: (210) 224-0141

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..............................................................................iii INDEX OF AUTHORITIES ......................................................................... vi

STATEMENT ON REFERENCES TO THE PARTIES AND THE RECORD .................................................................................................... 1

STATEMENT OF THE CASE ..................................................................... 2 STATEMENT REGARDING ORAL ARGUMENT ........................................ 5 ISSUES PRESENTED ................................................................................ 6 STATEMENT OF FACTS ........................................................................... 7 Purchase of the Property and Formation of the Partnership .............. 7 The Probate Suit Regarding the Trust ............................................... 9 The Mediated Settlement Agreement ................................................ 9 The Arbitration Award ...................................................................... 11 Enforcement of the Arbitration Award .............................................. 12 Appeal of the Judgment on the Arbitration Award ............................ 13 SUMMARY OF THE ARGUMENT ............................................................ 14 ARGUMENT AND AUTHORITIES ............................................................ 16

ISSUE NO. 1(a): Do the Saks Parties’ Issues Nos. 1(A)

and (B) present anything for this Court’s review? ............................. 17

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ISSUE NO. 1(b): Did the Saks Parties waive their arguments that (i) the summary judgment granting partition was in error because the Partnership Agreement prohibits withdrawal of capital; and (ii) the summary judgment winding up and terminating the Partnership was in error because there is no agreement to terminate the Partnership? .................................... 19

ISSUE NO. 1(c): Was it necessary for the Trial Court to make findings of fact to support its partial summary judgment ordering partition of the Property by sale? ........................ 20

ISSUE NO.1(d): Are there genuine issues of material fact as to: .... 22

i) whether a fair and equitable division of the Property cannot be made; ................................................................. 23

ii) whether the purpose of the Partnership is frustrated; ......... 26

iii) whether the Trust exists and has an interest in the Property; and .................................................................... 31

iv) whether McFadin and Landen own any interest in the Property or the Partnership? ....................................... 34

ISSUE NO. 2(a): Did the Trial Court abuse its discretion by awarding attorney’s fees to Coffeehouse and the Trust? ................. 37

ISSUE NO. 2(b): Did the Saks Parties waive any issue regarding failure to segregate attorney’s fees? ................................ 50

ISSUE NO. 2(c): Did the Trial Court err in awarding the full amount of attorney’s fees requested by Coffeehouse and the Trust? .............................................................................................. 51

ISSUE NO. 3(a): Is the Saks Parties’ issue No. 3 regarding the amount of the supersedeas bond moot because it has been waived, and does this Court therefore lack jurisdiction? .......... 55

ISSUE NO. 3(b): Did the Trial Court abuse its discretion in setting the amount of the supersedes bond? ................................... 59

iv

PRAYER ................................................................................................... 61 CERTIFICATE OF COMPLIANCE ............................................................ 63 CERTIFICATE OF SERVICE .................................................................... 63 APPENDIX

v

INDEX OF AUTHORITIES

Cases Page

Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex. App.—Austin 2006, no pet.) .................... 47-48

In re A.L.B., 56 S.W.3d 651 (Tex. App.—Waco 2001, no pet.) ............................ 59

Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507 (Tex. 2014) ............................................................ 23

Approach Res. I, L.P. v. Clayton, 360 S.W.3d 632 (Tex. App.—El Paso 2012, no pet.) .................. 51-52

Barfield v. Holland, 844 S.W.2d 759 (Tex. App.—Tyler 1992, writ denied) ..................... 46

In re Bass, 113 S.W.3d 735, 738 (Tex. 2003, orig. proc.) .................................. 57

Beago v. Ceres, 619 S.W.2d 293 (Tex. App.—Houston [1st Dist.] 1981, no writ) ....... 30

Blankinship v. Brown, 399 S.W.3d 303 (Tex. App.—Dallas 2013, pet. denied) ................... 17

Champion v. Robinson, 392 S.W.3d 118 (Tex. App.—Texarkana 2012, pet denied) ............. 24

Chappell v. Allen, 414 S.W.3d 316 (Tex. App.—El Paso 2013, no pet.) ................. 18, 26

Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ...... 48

Davis v. Merriman, No. 04-13-00518-CV, 2015 WL 1004357 (Tex. App.—San Antonio March 4, 2015, no pet. hist.) ........................................ passim

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In re Estate of Hernandez, No. 04-14-00046-CV, 2014 WL 1713566 (Tex. App.—

San Antonio April 30, 2014, no pet.) ........................................... 59-60

In re Estate of Taylor, 305 S.W.3d 829 (Tex. App.—Texarkana 2010, no pet.)................... 17

Feldman v. KPMG LLP, 438 S.W.3d 678 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ....................................................................................... 41-42

Florey v. Estate of McConnell, 212 S.W.3d 439 (Tex. App.—Austin 2006, pet. denied) ........ 39, 45-46

46933, Inc. v. Z & B Enterprises, Inc., 899 S.W.2d 800 (Tex. App.—Amarillo 1995, writ denied) ................ 40

Friedman v. Atl. Funding Corp., 936 S.W.2d 38 (Tex. App.—San Antonio 1996, no writ) .................. 20

Hoard Gainer Indus. Co., Ltd. v. Gollin, No. 01-03-01320-CV, 2005 WL 1646116 (Tex. App.—

Houston [1st Dist.] July 14, 2005, no pet.) ....................................... 57

H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872 (Tex. App.—Corpus Christi 1996, writ denied). 18, 26

Hollywood Park Humane Soc. v. Town of Hollywood Park, 261 S.W.3d 135 (Tex. App.—San Antonio 2008, no pet.) .................. 1

I-10 Colony, Inc. v. Chao Kuan Lee, 393 S.W.3d 467 (Tex. App.—Houston [14th Dist.] 2012, pet denied).................................................................................. 45-46

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) ............................................................ 21

In Interest of an Unborn Child, 153 S.W.3d 559 (Tex. App.—Amarillo 1993, no writ) ....................... 41

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Jones Gonzalez, P.C. v. Trinh, 340 S.W.3d 830 (Tex. App.—San Antonio 2011, no pet.) ................ 57

Morton v. Timarron Owners Ass’n., Inc., No. 02-13-00409-CV, 2014 WL 2619189 (Tex. App.—

Fort Worth June 12, 2014, no pet.) .................................................. 42

O’Farrill Avila v. Gonzalez, 974 S.W.2d 237 (Tex. App.—San Antonio 1998, pet. denied) ......... 51

Penhollow Custom Homes, LLC v. Kim, 320 S.W.3d 366 (Tex. App.—El Paso 2010, no pet.) ....................... 52

Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) ......................................... 22-23, 31

Purvis Oil Corp. v. Hillin, 890 S.W.2d 931 (Tex. App.—El Paso 1994, no writ) ....................... 42

Reagan v. NPOT Partners I, L.P., No. 06-08-00071-CV, 2009 WL 763565 (Tex. App.—

Texarkana March 25, 2009, pet rev. dism’d) .................................... 58

Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App.—Houston [1st Dist.] 1997, no writ) ....... 34

Roberts v. Wilson, 394 S.W.3d 45 (Tex. App.—El Paso 2012, no pet.) ....... 39, 42, 44, 49

Savell v. Savell, 837 S.W.2d 836 (Tex. App.—Houston [14th Dist.] 1992, writ denied) ............................................................................................ 30

Smith v. Reid, No. 04-13-00550-CV, 2014 WL 7339586 (Tex. App.—San Antonio Dec. 23, 2014, no pet.) ....................................................... 42

Southern Concrete Co. v. Metrotec Fin. Inc., 775 S.W.2d 446 (Tex. App.—Dallas 1989, no writ) .......................... 51

viii

Strange v. Cont’l Cas. Co., 126 S.W.3d 676 (Tex. App.—Dallas 2004, pet. denied) ................... 17

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006) .............................................. 51, 55

Valadez v. Avitia, 238 S.W.3d 843 (Tex. App.—El Paso 2007, no pet.) ................. 25, 28

Wheeler v. Phillips, 03-10-00221-CV, 2011 WL 4011455 (Tex. App.—Austin Sept. 7, 2011, pet. denied).................................................... 39, 49-50

Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-CV, 2011 WL 6118573 (Tex. App.—

Austin Dec. 8, 2011, pet. denied) ................................................ 41-42

Statutes TEX. BUS. ORG. CODE § 11.051 ............................................................. 29-30 TEX. BUS. ORG. CODE § 11.057 ............................................................. 29-30 TEX. BUS. ORG. CODE § 11.314 ............................................................. 27-28 TEX. CIV. PRAC. & REM. CODE § 37.004 ...................................................... 44 TEX. CIV. PRAC. & REM. CODE § 37.009 ........................................... 38-39, 41 TEX. CIV. PRAC. & REM. CODE § 51.012 ...................................................... 58 TEX. GOV. CODE § 22.220 .......................................................................... 58 TEX. R. APP. P. 24.2 .................................................................................. 60 TEX. R. APP. P. 24.4 ....................................................................... 55-56, 58 TEX. R. APP. P. 25.1 .................................................................................. 58 TEX. R. APP. P. 26.1 .................................................................................. 59 ix

TEX. R. CIV. P. 166a ........................................................................ 1, 20, 23 TEX. R. CIV. P. 770 ............................................................................... 23-24

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STATEMENT ON REFERENCES TO THE PARTIES AND THE RECORD The Parties. Appellant Sandra Saks is referred to as “Sandra.”

Appellant Margaret Landen Saks is referred to as “Landen.” Appellant Lee Nick McFadin III is referred to as “McFadin.” Collectively, Sandra, Landen, and McFadin are referred to as the “Saks Parties.” Appellee Broadway Coffeehouse, LLC is referred to as “Coffeehouse.” Appellee Marcus Rogers, as Trustee for the Saks Children Trust a/k/a ATFL&L is referred to as the “Trust.”

The Clerk’s Record. The two-volume Clerk’s Record is cited as CR1 [page] and CR2 [page]. Key items from the Clerk’s Record are included in the Appendix attached to this brief and referenced as Appendix, tab [number].

The Reporter’s Record. There are three Reporter’s Records filed in this appeal. The Reporter’s Record from the August 19, 2014 hearing on Coffeehouse’s Motion for Partial Summary Judgment was filed on October 22, 2014, but is not referenced herein, as it is not proper summary judgment evidence. See TEX. R. CIV. P. 166a(c); Hollywood Park Humane Soc. v. Town of Hollywood Park, 261 S.W.3d 135, 139 n. 2 (Tex. App.— San Antonio 2008, no pet.) The Reporter’s Record from the October 31, 2014 hearing on the Saks Parties’ Motion to Suspend and Supersede

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Judgment and to Set the Amount of Supersedeas Bond was filed on November 14, 2014, and is cited as Nov. RR [page]:[line]. The Reporter’s Record from the October 20, 2014 trial on the merits was filed on December 19, 2014, and is cited as Dec. RR [page]:[line].

STATEMENT OF THE CASE

Some of the underlying circumstances of this case are already reported in this Court’s opinion in Davis v. Merriman, No. 04-13-00518-CV, 2015 WL 1004357 (Tex. App.—San Antonio March 4, 2015, no pet. hist.), which involved a dispute over the Trust and its various properties. At the center of this lawsuit is a property in which the Trust owns an interest, a commercial building located at 5321 Broadway, San Antonio, Texas, and its adjoining parking lot (the “Property”), more specifically described as follows:

Lot Four (4), Block Thirty-Three (33), Alamo Heights, City of Alamo Heights, Situated in Bexar County, Texas, according to Plat thereof Recorded in Volume 105, Pages 29-296, Deed and Plat Records of Bexar County, Texas.

CR2 134; Appendix, tab 18. The side of the Property facing Broadway is occupied by Starbucks, and the other side is occupied by Nix Health Care System. Coffeehouse and the Trust are joint owners of the Property, and

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are also joint owners of 5321 Broadway Partners (the “Partnership”), the entity which manages and holds equitable title to the Property.

Due to contentious litigation involving the Trust and the Saks Parties, and the Saks Parties’ absurd persistence in making claims against the Property and Partnership, in spite of court orders rejecting their claims, Coffeehouse found it no longer practicable or desirable to be in business with the Trust. Coffeehouse filed this suit on October 10, 2013, seeking declaratory judgment to invalidate the Saks Parties’ claims against the Property and the Partnership, to partition the Property, and to wind up and terminate the Partnership. CR1 1. Coffeehouse filed its First Amended Petition on June 9, 2014. CR1 84; Appendix, tab 1.

On August 19, 2014, the Trial Court (the Honorable Larry Noll)

entered a Partial Summary Judgment in this case declaring that Coffeehouse and the Trust own the Property and the Partnership; declaring that the Saks Parties, as well as other parties, own no interest in the Property or the Partnership; declaring that certain assignments and deeds pertaining to the Property and the Partnership are void and of no force or effect; and ordering partition of the Property by sale, and the winding-up and termination of the Partnership. CR2 369; Appendix, tab 8.

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On September 16, 2014, the Trust filed its Crossclaim in this case, joining in and asserting the same claims asserted by Coffeehouse against Sandra and McFadin. CR2 373.

On October 20, 2014, the parties appeared for non-jury trial on the sole issue of attorney’s fees, and the Court entered a final Judgment, incorporating the previous Partial Summary Judgment. CR2 437; Appendix, tab 9. The Trial Court (the Honorable Antonia Arteaga) awarded attorney’s fees to Coffeehouse and the Trust against the Saks Parties jointly and severally. CR2 437. Immediately after the Judgment was entered on October 20, 2014, the Saks Parties filed their Notice of Appeal. CR2 434.

Prior to trial, on October 15, 2014, the Saks Parties had filed a premature Motion to Suspend and Supersede Judgment and to Set the Amount of Supersedeas Bond. CR2 397. The day following the trial, on October 21, 2014, the Saks Parties filed an Amended Motion to Suspend and Supersede Judgment and to Set the Amount of Supersedeas Bond. CR2 444. Coffeehouse responded on October 31, 2014, and a hearing was held that same day. CR2 459. The Trial Court (the Honorable Antonia Arteaga) entered an Order dated October 31, 2014, setting the amount of the supersedeas bond at $170,237.76. CR2 457. On November 3, 2014,

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the Saks Parties filed a Motion to Suspend the Judgment and to Review Order Setting the Amount of Supersedeas Bond in this Court, which was denied on November 7, 2014. Appendix, tabs 12 and 13. On November 17, 2014, the Saks Parties filed a Motion to Reconsider En Banc Motion to Suspend the Judgment and to Review Order Setting the Amount of Supersedeas Bond, which this Court also denied on November 21, 2014. Appendix, tabs 14 and 15.

STATEMENT REGARDING ORAL ARGUMENT Coffeehouse and the Trust request oral argument only if the Court grants oral argument to the Saks Parties. The Saks Parties have filed a disjointed and conclusory brief, which does not properly present the issues for this Court’s review. The Saks Parties’ Issue Nos. 1(A) and 1(B) are unpreserved arguments that are unsupported by citations to the record or proper legal authority. Such arguments are not properly before this Court and have been waived. The Saks Parties’ Issue No. 3 is moot because it has already been decided by this Court, the Saks Parties failed to seek further review in the Supreme Court, and this Court lacks further jurisdiction to consider it. The only issue that is arguably before this Court is the Saks Parties’ Issue No. 2 regarding whether the Trial Court abused its discretion

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in awarding attorney’s fees. This issue is straightforward, and does not require oral argument.

ISSUES PRESENTED

ISSUE NO. 1(a): Do the Saks Parties’ Issues Nos. 1(A) and (B) present anything for this Court’s review?

ISSUE NO. 1(b): Did the Saks Parties waive their arguments that (i) the summary judgment granting partition was in error because the Partnership Agreement prohibits withdrawal of capital; and (ii) the summary judgment winding up and terminating the Partnership was in error because there is no agreement to terminate the Partnership?

ISSUE NO. 1(c): Was it necessary for the Trial Court to make findings of fact to support its partial summary judgment ordering partition of the Property by sale?

ISSUE NO. 1(d): Are there genuine issues of material fact as to:

i) whether a fair and equitable division of the Property cannot be made;

ii) whether the purpose of the Partnership is frustrated;

iii) whether the Trust exists and has an interest in the Property; and

iv) whether McFadin and Landen own any interest in the Property or the Partnership?

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ISSUE NO. 2(a): Did the Trial Court abuse its discretion by awarding attorney’s fees to Coffeehouse and the Trust?

ISSUE NO. 2(b): Did the Saks Parties waive any issue regarding failure to segregate attorney’s fees?

ISSUE NO. 2(c): Did the Trial Court err in awarding the full amount of attorney’s fees requested by Coffeehouse and the Trust?

ISSUE NO. 3(a): Is the Saks Parties’ Issue No. 3 regarding the amount of the supersedeas bond moot because it has been waived, and does this Court therefore lack jurisdiction?

ISSUE NO. 3(b): Did the Trial Court abuse its discretion in setting the amount of the supersedeas bond?

STATEMENT OF FACTS

Purchase of the Property and Formation of the Partnership By Assumption Warranty Deed dated January 11, 1996, Guy Chipman, Jr. sold the Property to the Trust. CR1 153. Several days later, by Warranty Deed dated January 16, 1996, the Trust conveyed an undivided twenty-five percent (25%) interest in and to the Property to Perry T. Donop, Jr. (“Donop”). CR1 157.

On January 16, 1996, Donop and the Trust also entered into a Partnership Agreement by which the Partnership was formed. CR1 163; Appendix, tab 3. The stated purpose of the Partnership was to own,

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operate, and manage the Property. CR1 163. Record title to the Property remained jointly in the name of Donop (an undivided 25% interest) and the Trust (an undivided 75% interest). Pursuant to Paragraph 5 of the Partnership Agreement, Donop and the TRUST transferred equitable title to the Property to the Partnership. CR1 163-164; Appendix, tab 3.

By Special Warranty Deed dated August 22, 2012, Donop conveyed his undivided 25% interest in and to the Property to Coffeehouse, of which Donop is Manager. CR1 170. On the same date, Donop executed an Assignment and Assumption of Partnership Interest, whereby he assigned all of his interest in the Partnership to Coffeehouse. CR1 169. Attached hereto as Appendix, tab 2, is a flow chart illustrating the Property’s chain of title. CR1 320.

On or about September 6, 2012, Coffeehouse and Saks Broadway, LLC (“Saks Broadway”) executed an unrecorded Agreement Confirming Interests in Partnership, which recited that the Trust had previously transferred all of its right, title and interest in and to the Property and the Partnership to Saks Broadway. However, no such transfer or conveyance from the Trust to Saks Broadway was ever executed, and Saks Broadway does not own any interest in the Property or the Partnership. CR1 160- 161.

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The Probate Suit Regarding the Trust On or about August 17, 2011, Lauren Saks Merriman (“Merriman”)

filed suit against her mother, Sandra, and Diane Flores (“Flores”), Sandra’s sister, who was then Trustee of the Trust, in Cause No. 2011-PC-3466, in Bexar County Probate Court (the “Probate Suit”). CR1 174; See Davis, 2015 WL 1004357; Appendix, tab 7. In the Probate Suit, Merriman requested an accounting of the Trust and to remove Flores as Trustee, due to Flores’ numerous breaches of fiduciary duty and mismanagement of Trust assets. CR1 174. On or about December 21, 2011, the day before a scheduled hearing to remove Flores as Trustee, Flores signed a document reciting that the Trust had been terminated. CR1 323. The next day, however, on December 22, 2011, the Probate Court removed Flores as Trustee and appointed Marcus Rogers as Interim Trustee of the Trust. CR1 183.

The Mediated Settlement Agreement The parties to the Probate Suit eventually mediated their claims, and entered into a Mediated Settlement Agreement (the “MSA”) effective April 2, 2012. CR1 188; Appendix, tab 4. Because of Flores’ attempted termination of the Trust and due to suspicions that Flores had fraudulently assigned interests in the Partnership to Sandra, the MSA included an

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agreement by Sandra and Flores to transfer and assign any and all of their right, title, and interest in and to the Partnership back to the Trust. Sandra, Flores, Merriman, Landen (who is Sandra’s other daughter), and the Trust (through its Interim Trustee, Marcus Rogers) all signed the MSA. CR1 188; Appendix, tab 4. The Probate Court approved the MSA on May 8, 2012. CR1 193.

Sandra, Landen, and Flores then failed to comply with the MSA.

Instead, on or about August 15, 2012, Sandra filed of record two documents attached to an Affidavit: a document titled “Irrevocable Assignment of Partnership Interest,” dated January 6, 1996, signed by Flores, purporting to assign 99% of the Trust’s right, title and interest in the Partnership to Sandra (the “1996 Assignment”); and another document titled “Assignment of Interest in 5321 Broadway Partners,” dated December 21, 2011, also signed by Flores, purporting to terminate the Trust and assign its 75% interest in the Partnership to Merriman and Landen (the “2011 Assignment”). CR1 321. These invalid documents were filed after the Probate Court had removed and replaced Flores as trustee of the Trust, and served no purpose except to thwart the MSA.

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The Arbitration Award

As of September 5, 2012, Sandra, Landen and Flores still had not complied with the MSA. The Probate Court then ordered Sandra, Landen, Merriman, and the Trust to mediate and arbitrate any disputes over the MSA, as required under the terms of the MSA. CR1 195. This second mediation was unsuccessful, so the matter was arbitrated by the mediator, Thomas J. Smith. On October 24, 2012, Mr. Smith, as Arbitrator, entered Findings and a Final Award (the “Arbitration Award”). CR1 200; Appendix, tab 5. The Arbitrator found that the properties described in the MSA, including the interest in the Partnership, were Trust property. The Arbitrator also held that Sandra’s, Landen’s, and any other party’s failures to comply with the MSA’s requirement to transfer their right, title and interest in the Trust property were not made in good faith or for just cause. The Arbitrator ordered Sandra, Landen and any other party to the MSA to execute the required documents necessary to effectuate the transfer, purpose, and intent of the MSA, which documents were attached to and incorporated by reference in the Arbitration Award. On May 7, 2013, the Probate Court confirmed the Arbitration Award, and entered it as a judgment of the Court. CR1 198.

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Sixteen days after the Probate Court had entered the Arbitration Award as a judgment of the Court, on or about May 23, 2013, Sandra filed of record two more documents: a Deed dated April 21, 2012, by which she purported to convey all of her right, title, and interest in the Property to McFadin (the “McFadin Deed”); and a document titled “Transfer Conveyance Assignment of Interest in the 5321 Broadway Partners Agreement,” by which she purported to assign all of her right, title and interest in the Partnership to McFadin (the “McFadin Assignment”) (collectively, with the 1996 Assignment and the 2011 Assignment, the “Assignments”). CR1 333-343. At the time the above-described instruments were executed and filed of record, Sandra had no interest in the Property or the Partnership, but in any event, the McFadin Deed and McFadin Assignment were void and ineffective to transfer any interest in the Property or the Partnership because McFadin acquired any such interest subject to the Probate Suit, the MSA, and the final determination in the Arbitration Award.

Enforcement of the Arbitration Award Despite being ordered by the Arbitrator and the Probate Court to execute the documents necessary to transfer any right, title, and interest in the Property and the Partnership to the Trust, Sandra and Landen still

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continued to refuse to sign such conveyances. On September 17, 2013, the Probate Court entered an Order Granting Motion to Enforce, ordering Sandra and Landen to execute the required documents, including a Conveyance Agreement and Deed (the “Arbitration Deed”) relating to the Property, and a Conveyance Agreement and Assignment (the “Arbitration Assignment”) relating to the Partnership. CR1 278. When Sandra and Landen still refused to comply, the Court entered an Order in Aid of Enforcement of Judgment on November 14, 2013, which deemed by operation of law that Sandra and Landen had executed the Arbitration Deed and Arbitration Assignment transferring all right, title, and interest in the Property and the Partnership to the Trust, as well as the other required documents. CR1 281; Appendix, tab 6. This Order confirmed, once and for all, title to a 75% undivided interest in the Trust, with the remaining 25% undivided interest in Coffeehouse.

Appeal of the Judgment on the Arbitration Award On August 2, 2013, Sandra and Landen appealed the Arbitration Award and the Order entering the Arbitration Award as a Judgment. On December 12, 2013, Sandra, Landen, and McFadin appealed the November 14, 2013 Order in Aid of Enforcement of Judgment. This Court consolidated the appeals and issued a Memorandum Opinion on March 4,

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2015, affirming the judgment confirming the Arbitration Award and dismissing the appeal from the Order in Aid of Enforcement of Judgment for lack of jurisdiction. See Davis, 2015 WL 1004357. Appendix, tab 7.

SUMMARY OF THE ARGUMENT

The Saks Parties failed to adequately brief their Issues Nos. 1(A) and 1(B); therefore, they have presented nothing for this Court’s review and have waived their complaints on these issues.

The Saks Parties also failed to raise Issues Nos. 1(A) and 1(B) in their Responses to Coffeehouse’s Motion for Partial Summary Judgment and Amended Motion for Partial Summary Judgment, and are presenting these complaints for the first time on appeal. Thus, the Saks Parties have waived these issues.

It was not necessary for the Trial Court to make findings of fact to support its Order partitioning the Property by sale. Even if the Saks Parties had requested findings of fact, it would have been improper for the Trial Court to make them. Furthermore, the Trial Court did determine the shares of the joint owners in the Property in its Order Granting Partial Summary Judgment.

Even if the Saks Parties had not waived Issues Nos. 1(A) and 1(B), the Trial Court’s Order Granting Partial Summary Judgment should be

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affirmed because there are no genuine issues of material fact that (i) a fair and equitable division of the Property cannot be made; (ii) the purpose of the Partnership is frustrated; (iii) the Trust exists and owns an interest in the Property; and (iv) McFadin and Landen own no interest in the Property or the Partnership.

The Trial Court did not abuse its discretion in awarding attorney’s fees to Coffeehouse and the Trust because they properly pleaded for declaratory relief under Section 37.001 et seq. of the Texas Civil Practice & Remedies Code (the “UDJA”), which relief was not duplicative of the other relief they sought, and the Trial Court was statutorily authorized to make the fee awards.

The Saks Parties have waived their argument regarding segregation of attorney’s fees because they failed to file a Motion for New Trial or otherwise object in the Trial Court. Even if the issue had not been waived, the evidence shows that the attorney’s fees of Coffeehouse and the Trust could not be segregated; therefore, the Trial Court’s award should be affirmed.

The Saks Parties have already asked this Court to review the Order setting the amount of supersedeas bond. This Court refused to overturn or modify the Order, and the Saks Parties failed to file a petition for writ of

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mandamus to the Supreme Court of Texas to further challenge the Order. Therefore, the Saks Parties’ Issue No. 3 is moot and has been waived. This Court also lacks jurisdiction to consider this issue. Even if it were possible for the Saks Parties to further appeal the Order setting the amount of supersedeas bond, their Notice of Appeal for this Order was untimely. Finally, even if the Saks Parties’ Issue No. 3 were properly before this Court, the Trial Court did not abuse its discretion in setting the amount of supersedeas bond, and its Order should be affirmed.

ARGUMENT AND AUTHORITIES

This Court is already familiar with many of this case’s underlying facts and arguments because this case arises out of the ongoing dispute between the Trust and the Saks Parties. See Davis, 2015 WL 1004357. Appendix, tab 7. Because of this dispute and the unreasonable and unpredictable behavior of the Saks Parties, Coffeehouse’s abilities to deal with the Trust and to effectively manage the Property have been frustrated, and it is no longer practical for Coffeehouse to be in business with the Trust. Due the fraudulent instruments filed of record by the Saks Parties, Coffeehouse had no choice but to file this action seeking to cancel the invalid instruments and quiet the Saks Parties’ claims, so that the Property could be sold and the Partnership terminated.

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ISSUE NO. 1(a): Do the Saks Parties’ Issues Nos. 1(A)

and (B) present anything for this Court’s review?

In Davis, this Court held that in attempting to raise several issues, Sandra and Landen failed to properly brief their arguments under Texas Rule of Appellate Procedure 38.1(i). 2015 WL 1004357 at *5. Similarly, the Saks Parties in this case have inadequately briefed Issue Nos. 1(A) and (B) so that nothing is presented to this Court for review.

Pursuant to Texas Rule of Appellate Procedure 38.1(i), an appellant’s brief must contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Nothing is presented for review if an appellate issue is unsupported by argument or citation to the record or by proper legal authority. Davis, 2015 WL 1004357 at *5; Blankinship v. Brown, 399 S.W.3d 303, 307 (Tex. App.—Dallas 2013, pet. denied). “Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.” In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana 2010, no pet.). “An appellate court has no duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred.” Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.— Dallas 2004, pet. denied).

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In briefing their Issue No. 1(A), in which they attempt to challenge the Order Granting Partial Summary Judgment, the Saks Parties make limited citations to the record, and fail to provide any legal authority to support their position. The Saks Parties’ briefing of their Issue No. 1(B) does not include a single citation to either the record or supporting legal authority. Because the Saks Parties have failed to provide adequate support for their Issues No. 1(A) and (B) from either the record or the applicable law, they have presented nothing for this Court to review on these complaints.

Furthermore, on pages 14, 15, and 18 of their Brief, the Saks Parties cite to testimony and exhibits from the November 14, 2014, Reporter’s Record of the hearing on their Amended Motion to Set Supersedeas Bond, which hearing was held after the Trial Court granted the Partial Summary Judgment, and which is not part of the summary judgment record. A review of a ruling granting a motion for summary judgment will be made only on the record upon which the trial court’s ruling was based and only as it existed at the time the summary judgment was signed. Chappell v. Allen, 414 S.W.3d 316, 321 (Tex. App.—El Paso 2013, no pet.); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 878 (Tex. App.—Corpus Christi 1996, writ denied). Because the November 14, 2014, Reporter’s Record of the hearing on the Saks Parties’ Amended Motion to Set Supersedeas

19

Bond is not summary judgment evidence, any references to said Reporter’s Record are improper and should be disregarded.

The Saks Parties fail to make adequate citations to the record or to appropriate legal authority, and cite to a portion of the record which is not proper summary judgment evidence. Therefore, the Saks Parties have presented nothing for this Court to review on their Issues Nos. 1(A) and (B), and the Court should find that the Saks Parties have waived these complaints.

ISSUE NO. 1(b): Did the Saks Parties waive their arguments that (i) the summary judgment granting partition was in error because the Partnership Agreement prohibits withdrawal of capital; and (ii) the summary judgment winding up and terminating the Partnership was in error because there is no agreement to terminate the Partnership?

The Saks Parties attempt to argue that the Partnership Agreement prohibits the withdrawal of capital, and, therefore, Coffeehouse lacked standing to request partition of the Property. The Saks Parties also try to claim that the winding-up and termination of the Partnership is in error because there is no agreement to terminate the Partnership. The Saks Parties failed to present these arguments to the Trial Court in their Responses to Coffeehouse’s Motion for Partial Summary Judgment and

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Amended Motion for Partial Summary Judgment, and are raising them for the first time in this appeal. CR1 350, 406; CR2 1, 152, 171, 187. Under Texas Rule of Civil Procedure 166a(c):

Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.

The non-movant must expressly present to the trial court any issues or grounds for defeating the movant’s entitlement to summary judgment. Friedman v. Atl. Funding Corp., 936 S.W.2d 38, 41-42 (Tex. App.—San Antonio 1996, no writ). Any issue not presented in the response to a summary judgment motion cannot be raised later on appeal. Id. Because the Saks Parties failed to present these issues to the Trial Court in their responses to Coffeehouse’s motion for partial summary judgment, the court should find that these issues have been waived for this reason, as well.

ISSUE NO. 1(c): Was it necessary for the Trial Court to make findings of fact to support its partial summary judgment ordering partition of the Property by sale?

The Saks Parties claim that the Trial Court’s Order Granting Partial Summary Judgment was in error because it failed to make findings that the Property could not be partitioned in kind, or determine the share of each of the joint owners in the Property. First, the Saks Parties did not request any

21

findings of fact, but even if they had, it would have been improper for the Trial Court to make findings of fact. “Findings of fact and conclusions of law have no place in a summary judgment proceeding.” IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997). The reason for this is that for summary judgment to be rendered, there must be no genuine issue as to any material fact, and the legal grounds must be set forth in the motion and response. Id. If the trial court properly enters summary judgment, there are no facts to find, and the legal conclusions have already been presented in the motion and response. Id. “The trial court should not make, and an appellate court cannot consider, findings of fact in connection with a summary judgment.” Id. Therefore, it was not necessary for the Trial Court to make any findings of fact with regard to partition of the Property.

Furthermore, the Trial Court did determine, in its Judgment, the share of each of the joint owners of the Property. In its Order Granting Partial Summary Judgment (which was incorporated into the final Judgment), the Court decreed that:

BROADWAY COFFEEHOUSE, LLC, owns an undivided twenty-five (25%) percent interest, and that Defendant MARCUS ROGERS, AS INTERIM

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TRUSTEE FOR THE SAKS CHILDREN TRUST A/K/A ATFL&L, A TEXAS TRUST, owns an undivided seventy-five (75%) percent interest, in the following real property and improvements (the “Property”):

Lot Four (4), Block Thirty-Three (33), Alamo Heights, City of Alamo Heights, Situated in Bexar County, Texas, according to Plat thereof Recorded in Volume 105, Pages 29-296, Deed and Plat Records of Bexar County, Texas.

CR2 369; Appendix, tab 8. This is part of the Judgment, but the effect is the same. The Saks Parties’ point is moot.

ISSUE NO. 1(d): Are there genuine issues of material fact as to:

i) whether a fair and equitable division of the Property cannot be made;

ii) whether the purpose of the Partnership is frustrated;

iii) whether the Trust exists and has an interest in the Property; and

iv) whether McFadin and Landen are owners of the Property?

A summary judgment is reviewed on appeal de novo. Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under

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summary judgment review, all evidence favorable to the non-movant is taken as true, and the court indulges every reasonable inference and resolves any doubts in favor of the nonmovant. Id., at 215. Pursuant to Texas Rule of Civil Procedure 166a(c), the party moving for summary judgment must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Id., at 216. When a movant meets this burden, the burden then shifts to the non-movant to raise an issue of fact as to at least one the elements of the movant’s claim. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014).

i. There is no genuine issue of material fact that a fair and equitable division of the Property cannot be made.

The Trial Court’s Order Granting Partial Summary Judgment and final Judgment both order partition of the Property by sale. CR2 371, 439. In a suit for partition, the Court shall determine whether the property is incapable of division so that the Property must be sold. Pursuant to Texas Rule of Civil Procedure 770:

Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall order a sale of so

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much as is incapable of partition, which sale shall be for cash, or upon such other terms as the court may direct, and shall be made as under execution or by private or public sale through a receiver, if the court so order . . . .

“Incapable” of partition does not mean incapable in a physical sense, but rather the Court should focus on whether partition in kind is fair and equitable so that the property can be divided in kind without materially impairing its value. Champion v. Robinson, 392 S.W.3d 118, 123 (Tex. App.—Texarkana 2012, pet denied). The party seeking partition by sale bears the burden of proving a partition in kind would not be fair and equitable. Id.

Coffeehouse’s summary judgment evidence shows that a partition in kind of the Property would not be fair and equitable. Attached to Coffeehouse’s Motion for Partial Summary Judgment is the Affidavit of Perry Donop, Jr. (“Donop Affidavit I”), in which Donop describes the Property as a commercial building and adjacent parking lot, leased to retail and office tenants. CR1 161. The Property is a single platted lot. Appendix, tab 18. Donop explains that there is no way to divide the building or the land in a way that would not materially impair its value. CR1

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161. Finally, Donop explains that the Property’s value is dependent on the commercial improvements and its operation as a commercial retail and office building, and neither the improvements nor the land underneath the improvements can be partitioned in kind. CR1 161.

The Saks Parties fail to point to any specific evidence in the summary judgment record that would controvert the Donop Affidavit I. It is the Saks Parties’ burden to discuss their assertions of error and properly cite to supporting evidence in the record. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). An appellate court has no duty or right to perform an independent review of the record, which would improperly transform the court from neutral adjudicators to advocate for that party. Id. Because it is not this Court’s duty to independently review the voluminous summary judgment record, the Saks Parties were required to identify any supporting evidence with proper citations to the summary judgment record, and by failing to do so, they have presented nothing for review. See Id.

The only evidence cited by the Saks Parties in support of this issue is from the November 14, 2014, Reporter’s Record of the hearing on Appellants’ Amended Motion to Set Supersedeas Bond. As explained above, the November 14, 2014, Reporter’s Record is not part of the summary judgment record because it pertains to a separate proceeding

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held on October 31, 2014, regarding the amount of the supersedeas bond, and was made well after the Court entered its Order granting Partial Summary Judgment on August 19, 2014. See Chappell, 414 S.W.3d at 321; H.S.M. Acquisitions, 917 S.W.2d at 878. Because the testimony and evidence presented during the hearing regarding the supersedeas bond is outside the summary judgment record, it is not within the scope of this Court’s summary judgment review, and should be disregarded.

The evidence presented by Coffeehouse satisfies its burden to show that there is no genuine issue of material fact that a fair and equitable division of the Property cannot be made. CR1 161. The Saks Parties failed to identify or cite to any summary judgment evidence that would raise a fact question on this issue. See Chappell, 414 S.W.3d at 321 (Appellate court would not consider voluminous summary judgment record or matters presented at subsequent trial, but would limit scope of review to portions of summary judgment record to which proper citations were made). Therefore, the Order Granting Partial Summary Judgment and subsequent final Judgment ordering partition of the Property by sale should be affirmed.

ii. There is no genuine issue of material fact that the purpose of the Partnership is frustrated.

The Trial Court’s Order Granting Partial Summary Judgment and final Judgment also order that the Partnership be wound-up and terminated.

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CR2 371, 439. Under Section 11.314(1)(A) of the Texas Business Organizations Code, a district court has jurisdiction to order the winding up and termination of a domestic partnership if the court determines that the economic purpose of the partnership is likely to be unreasonably frustrated. Appendix, tab 19. Coffeehouse requested partial summary judgment ordering the winding-up and termination of the Partnership on this basis, supported by the Donop Affidavit I, in which Mr. Donop stated that the economic purpose of the Partnership was frustrated by the ongoing Trust dispute, the accusations of Flores’ mismanagement of the Trust, the litigiousness of the Saks Parties, and their refusal to comply with court orders and recognize the validity of the Trust. CR1 148-150, 161-162, 186- 194, 198-199, 205-206, 245-261, 281-282, 321-324, 330-343; CR2 121- 123.

The Saks Parties do not point to any summary judgment evidence to refute the Donop Affidavit I or the other evidence, do not make a single citation to the record on this issue, and provide no legal authority for their argument. Rather, the Saks Parties make conclusory and unsupported statements that “the economic purpose of the Partnership is not frustrated by any dispute between the ATFL&L and any other parties because ATFL&L is no longer an owner of any interest in the Property,” and “there

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are genuine issues of material fact . . . [as to] (4) whether the purpose of the Partnership is frustrated.” Appellants Brief, at 19-20. The requirement that an appellant’s brief contain a clear and concise argument, including appropriate citation to authority and to the record, is not satisfied by merely uttering brief conclusory statements unsupported by legal citations. Valadez, 238 S.W.3d at 845. Because the Saks Parties have raised no genuine issue of material fact, the Order Granting Partial Summary Judgment and final Judgment ordering winding-up and termination of the Partnership should be affirmed.

Furthermore, Coffeehouse asserted three other bases for winding-up and terminating the Partnership. Under Section 11.314(1)(B) of the Texas Business Organizations Code, a district court has jurisdiction to order the winding up and termination of a domestic partnership if the court determines that another partner has engaged in conduct relating to the partnership’s business that makes it not reasonably practicable to carry on the business in partnership with that partner. Appendix, tab 19. Coffeehouse presented summary judgment evidence that this condition existed so that winding-up and termination of the Partnership was necessary. The Donop Affidavit I sets forth testimony explaining that because of the conflicts surrounding the Trust and the Saks Parties’

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assertion of invalid and fraudulent claims to the Property and the Partnership, as well as their absolute refusal to recognize the existence of the Trust or comply with the Orders of the Probate Court, it is not reasonably practicable to carry on the business with the Trust. CR1 161- 162, 186-194, 198-199, 205-206, 245-261, 281-282, 321-324, 330-343.

Furthermore, pursuant to Sections 11.051(4) and 11.057(c) of the Texas Business Organizations Code, an event requiring the winding up of a domestic general partnership includes:

(1) in a general partnership for a particular undertaking, the completion of the undertaking, unless otherwise provided by the partnership agreement; [and]

...

(3) the sale of all or substantially all of the property of the general partnership outside the ordinary course of business, unless otherwise provided by the partnership agreement.

TEX. BUS. ORG. CODE § 11.057(c); Appendix, tab 19. Coffeehouse showed the Trial Court that winding-up and termination of the Partnership was required due to such events. Pursuant to the Partnership Agreement, the purpose of the Partnership was to own, operate, and manage the Property,

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which constituted all of the property of the Partnership. CR1 160, 163-164. Because Coffeehouse (1) owns an interest in the property and (2) has a right to present possession as a cotenant, it is entitled to partition the Property as a matter of law. CR1 159-160, 157-158, 170-172. See Savell v. Savell, 837 S.W.2d 836, 838 (Tex. App.—Houston [14th Dist.] 1992, writ denied); Beago v. Ceres, 619 S.W.2d 293, 294 (Tex. App.—Houston [1st Dist.] 1981, no writ) (holding that the right of a joint owner to partition real property is absolute). Coffeehouse established that partition by sale is necessary because a fair and equitable division of the Property cannot be made, and the Trial Court ordered partition of the Property by sale. CR1 161, CR2 371, 439. Such a sale would constitute an event requiring winding up the Partnership because it would: (1) complete the particular undertaking for which the Partnership was formed; and (2) constitute a sale of all of the property of the Partnership. As such, the winding up of the Partnership is required under Sections 11.051(4) and 11.057(c) of the Texas Business Organizations Code.

In their Brief, the Saks Parties have raised no issue regarding these other grounds for winding up and terminating the Partnership. The Trial Court did not specify the grounds for ordering the winding up and termination of the Partnership; therefore, the summary judgment must be

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affirmed if any of the theories presented to the Trial Court and preserved for appellate review are meritorious. Provident, 128 S.W.3d at 217. Even if there had been a genuine issue of material fact regarding whether the purpose of the Partnership was frustrated, Coffeehouse has established the other three bases for winding-up and termination of the Partnership as a matter of law, and the Saks Parties have not disputed these grounds. Therefore, the Trial Court’s ordering the winding-up and termination of the Partnership should be affirmed.

iii. There is no genuine issue of material fact that the Trust exists and has an interest in the Property and the Partnership.

The Saks Parties present no specific issue on their contentions that the Trust was terminated and that they own interests in the Property. They do say as an unsupported conclusion buried in the body of their confusing Brief that there are questions of fact on these issues. But these are not issues they include in their statement of the issues in this appeal (see Appellants’ Brief, at 3), and they entirely fail to present or support those unsupported conclusions with proper clarity or argument. The Saks Parties also fail to mention that these precise issues are now conclusively decided against them by this Court’s opinion in Davis, 2015 WL 1004357. The Court should simply disregard what the Saks Parties say about the Trust

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being terminated or their supposed ownership, because these statements do not support or relate to the issues they have identified in their statement of the issues and because these issues have already been decided in favor of the Trust and against the Saks Parties.

If this Court does entertain these issues, it should quickly reject the outrageous position that the Trust was terminated and owns no interest in the Property or the Partnership, despite the Probate Court’s appointment of an interim trustee, the Arbitration Award carrying out the MSA and stating that the Property and Partnership are Trust property, the Probate Court’s Orders enforcing the Arbitration Award, and Trial Court’s Order Granting Partial Summary Judgment in this case declaring that the Trust owns 75% of the Property and the Partnership. CR1 188, 193, 198, 200, 205, 278, 281; CR2 370; Appendix, tabs 4, 5, 6, 8 and 9. Furthermore, in the Memorandum Opinion issued in Davis, this Court affirmed the Probate Court’s judgment confirming the Arbitration Award, finding that, based on the MSA and the Arbitration Award which are premised on the notion that the Trust is in existence, the Trust was never terminated. Davis, 2015 WL 1004357 at *3. Appendix, tab 7.

Additionally, the Saks Parties point to no competent summary judgment evidence that the Trust no longer owns its 75% interest in the

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Property and the Partnership. CR1 157, 163. The only evidence referred to by the Saks Parties is an Affidavit of Diana Flores, dated July 1, 2014, which they claim shows that Flores had absolute authority to execute the 1996 Assignment and the 2011 Assignment, by which Flores purported to terminate the Trust. The Saks Parties fail to indicate the page in the record where such Affidavit can be found, but it appears that Appellants are referring to the Affidavit attached to Flores’ Response to Coffeehouse’s Motion for Partial Summary Judgment. CR2 78-79. It should be noted that Flores withdrew her opposition to Coffeehouse’s Motion for Partial Summary Judgment prior to the hearing, when she entered into a Rule 11 Agreement agreeing to disclaim and quitclaim any interest in the Property and the Partnership. CR2 365.

First, Flores’ statements in the Affidavit that she terminated the Trust on December 21, 2011, and that she had authority to execute the above- mentioned Assignments by which she allegedly distributed the Trust’s 75% interest in the Property and the Partnership, constitute legal conclusions. Coffeehouse objected to Flores’ Affidavit on these bases in the Trial Court, but the Trial Court did not rule on those objections. CR2 357. Because an objection that an affidavit states a legal conclusion is an objection based on a substantive defect, the objection may be raised on appeal even if it was

34

never ruled on, or even raised, in the trial court. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ). Because the statements in Flores’ Affidavit relied on by the Saks Parties are legal conclusions, they are improper summary judgment evidence and should be disregarded. Additionally, the Assignments referred to by Flores in her Affidavit were invalidated by the MSA, the Arbitration Award, and the Probate Court Orders enforcing the Arbitration Award, by which Sandra, Landen, and Merriman conveyed any interest they may have had in the Property and the Partnership to the Trust.

Because the Saks Parties have presented no evidence creating a genuine issue of material fact as to whether the Trust exists and owns an interest in the Property and the Partnership, summary judgment on this issue must be affirmed.

iv. There is no genuine issue of material fact that McFadin and Landen own no interest in the Property or the Partnership.

Landen does not own any interest in the Property or the Partnership because the Trust was not terminated, and she was deemed to have conveyed any interest she had in the Property and the Partnership to the Trust. CR1 281; Appendix, tab 6. McFadin owns no interest in the Property or the Partnership because he purports to have obtained his interest from Sandra, who never owned any interest in the Property, and

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who also was deemed to have conveyed any interest she may have had in the Property and Partnership back to the Trust. CR1 281; Appendix, tab 6.

Coffeehouse presented summary judgment evidence that pursuant to the MSA, Sandra and Flores agreed to transfer and assign to the Trust all of their right, title, and interest in and to the Property and the Partnership, and the Probate Court approved the MSA. CR1 189. When the MSA was arbitrated, the arbitrator found:

4) Pursuant to order of the court, Marcus Rogers is the Interim Trustee of the Trust.

...

6) Sandra C. Saks, although settlor of the Trust, has no current interest in the Trust.

...

21) ¶3.b. of the MSA represents the Parties’ agreement that the properties and interests identified in that paragraph were intended by the Parties to be assigned or conveyed to the Trust. The properties so identified are Trust property. ¶5 of the MSA provides the Parties would cooperate with one another in the execution of the necessary documents to effect the transfer of the

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properties and interests identified in ¶3.b. to the Trust.

The documents attached hereto as Exhibits 1 – 10 are in proper form and necessary to accomplish the transfer of the properties to the Trust as contemplated in the MSA.

...

22) The refusal of Sandra C. Saks, Landen Saks, and/or any other party who has failed to execute the necessary documents to effect a conveyance of the transfer of the title or interest of the properties listed in MSA ¶3.b. to the Trust was not made in good faith or for just cause. Each such party failing to cooperate shall be compelled to cooperate in order to effect the transfer, purposes and intents of the MSA.

CR1 201, 205-206; Appendix, tab 5. Because this Court has already affirmed the judgment confirming the Arbitration Award, the Saks Parties have already litigated and lost on this issue.

Moreover, the documents by which Landen and Sandra were deemed to have conveyed any Property and Partnership interests they may have had to the Trust, and which were incorporated into the Arbitration Award as a judgment of the Probate Court, specifically state that the 1996

37

Assignment and 2011 Assignment are now “canceled or void and of no further force or effect.” CR1 256; Appendix, tab 5. Because Sandra had nothing to convey or assign to McFadin, the McFadin Assignment and the McFadin Deed are void and ineffective.

The Saks Parties point to no competent summary judgment evidence that would show that Landen or Sandra retained any interest in the Property or the Partnership, or that Sandra had any interest to convey to McFadin. The Saks Parties also fail to argue or offer any evidence that the purported conveyance and assignment to McFadin were not invalidated by the Probate Suit, the MSA, and the final determination in the Arbitration Award. Because the Saks Parties have raised no genuine issue of material fact on this issue, the summary judgment declaring that neither Landen nor McFadin own any interest in the Property or the Partnership must be affirmed.

ISSUE NO. 2(a): Did the Trial Court abuse its discretion by awarding attorney’s fees to Coffeehouse and the Trust?

Due to the Saks Parties’ absurd persistence in their claims against the Trust and its properties, and their unceasing litigation in the face of conclusive court rulings, it was necessary for Coffeehouse and the Trust to request declaratory relief to invalidate the fraudulently filed instruments and

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restore marketable title to the Property before partition of the Property or winding-up of the Partnership could be accomplished. Coffeehouse asked the Court to declare under the UDJA that Saks Broadway owns no interest in the Property or the Partnership, that the Assignments and Deed fraudulently filed by Sandra Saks are null and void, that Coffeehouse and the Trust are the only two partners of the Partnership, that the Partnership owns equitable title to the Property, and that Coffeehouse and the Trust own 25% and 75% of the Property respectively. CR1 91.

The Saks Parties have fought Coffeehouse and the Trust every step of the way, completely disregarding the Orders of the Probate Court, as well as the agreement and absolute right of Coffeehouse and the Trust to partition the Property and wind up the Partnership. As a result, Coffeehouse and the Trust also sought to recover their reasonable and necessary attorney’s fees under Section 37.009 of the UDJA. CR1 93; Appendix, tab 1. The Trial Court granted Coffeehouse’s requested declaratory relief in its Order Granting Partial Summary Judgment and incorporated such relief into the final Judgment, which also awarded attorney’s fees to Coffeehouse and the Trust. CR2 369, 437; Appendix, tabs 8 and 9.

Section 37.009 of the UDJA provides:

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In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.

Appendix, tab 10. Attorney’s fees awarded pursuant to the UDJA are reviewed under an abuse of discretion standard. Roberts v. Wilson, 394 S.W.3d 45, 55 (Tex. App.—El Paso 2012, no pet.); Florey v. Estate of McConnell, 212 S.W.3d 439, 447 (Tex. App.—Austin 2006, pet. denied); Wheeler v. Phillips, 03-10-00221-CV, 2011 WL 4011455, at *9 (Tex. App.— Austin Sept. 7, 2011, pet. denied). Abuse of discretion occurs when a trial court acts unreasonably or without reference to any guiding rules and principles. Wheeler, 2011 WL 4011455, at *9.

The Saks Parties argue that because neither the Order Granting Partial Summary Judgment nor the final Judgment expressly address the requests for declaratory judgment, then the award of attorney’s fees under the UDJA was improper. However, the Order Granting Partial Summary Judgment and the final Judgment clearly granted declaratory relief, even if they did not expressly refer to the UDJA or use the words “declaratory judgment.” The final Judgment orders, adjudges, and decrees (1) that Coffeehouse and the Trust own 25% and 75% undivided interests in the Property, respectively; (2) that Coffeehouse and the Trust own 25% and

40

75% of the Partnership, respectively; (3) that the Partnership has equitable title to the Property; (4) that none of the other parties in the Trial Court, including the Saks Parties, own any interest in the Property or the Partnership; (5) and that the Assignments and Deed filed by Sandra Saks after the MSA was approved by the Probate Court and the Arbitration Award was entered as a Judgment, are void and of no force and effect. CR2 369, 437; Appendix, tabs 8 and 9.

The Saks Parties’ argument that the Judgment does not mention “declaratory judgment,” is merely an attack on the form of the Judgment. However, nothing in the record shows that the Saks Parties called this alleged defect to the attention of the Trial Court. Because the Saks Parties failed to object to the form of the Judgment or notify the Trial Court of the claimed error, the Saks Parties have waived any complaint of error to the form of the judgment. 46933, Inc. v. Z & B Enterprises, Inc., 899 S.W.2d 800, 808 (Tex. App.—Amarillo 1995, writ denied).

Furthermore, “under the liberal construction which must be given the declaratory judgment act, no particular form is necessary for the declaration of rights in a declaratory judgment action if, when construed together with the pleadings and any findings, the rights of the parties can be determined from the face of the judgment.” 46933, Inc., 899 S.W.2d at 808. Because

41

the Trial Court’s Judgment, when construed with the Coffeehouse and Trust pleadings requesting declaratory relief, determines the rights of the parties, the Judgment constitutes a declaration under the UDJA. See In Interest of an Unborn Child, 153 S.W.3d 559, 561 (Tex. App.—Amarillo 1993, no writ.) (holding that even though the trial court’s order did not make a declaration, determination of law, or expressly grant any relief, because no particular form is prescribed for a declaration of rights in a declaratory judgment action, the word “finds” was construed to constitute a declaration based upon facts found from the evidence).

The Trial Court could have properly awarded attorney’s fees to Coffeehouse and the Trust under the UDJA even if the requested declaratory relief had not been granted. Pursuant to Section 37.009 of the UDJA, “equitable and just” attorney’s fees and costs may be awarded “in any proceeding under this chapter.” The question, then, is whether the proceeding is a declaratory judgment action “under this chapter.” Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-CV, 2011 WL 6118573, at *8 (Tex. App.—Austin Dec. 8, 2011, pet. denied). Under Section 37.009, it is within the trial court’s discretion to award attorney’s fees to the prevailing party, the nonprevailing party, or neither. Feldman v. KPMG LLP, 438 S.W.3d 678, 685 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Zurita, 2011 WL

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6118573 at *8. Moreover, the statute does not require a judgment on the merits of the dispute as a prerequisite to a fee award. Feldman, 438 S.W.3d at 685; Zurita, 2011 WL 6118573 at *8. In an action under the UDJA, it is within the trial court’s discretion to award attorney’s fees to any party with pleadings requesting them, even if the party moving for attorney’s fees failed to specify the statutory authority for such an award in its motion. Roberts, 394 S.W.3d at 55; Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939 (Tex. App.—El Paso 1994, no writ); Smith v. Reid, No. 04-13-00550-CV, 2014 WL 7339586, at *10 (Tex. App.—San Antonio Dec. 23, 2014, no pet.); Zurita, 2011 WL 6118573 at *8.

The Saks Parties contend that Coffeehouse and the Trust are not entitled to recover fees because they “did not claim an independent cause of action for declaratory judgment that was granted,” citing as support Morton v. Timarron Owners Ass’n., Inc., No. 02-13-00409-CV, 2014 WL 2619189 (Tex. App.—Fort Worth June 12, 2014, no pet.) Appellants’ Brief, at 23. This case is distinguishable because the request for declaratory judgment in Morton was a defensive counterclaim that mirrored the plaintiff’s trademark infringement claim. The appellate court held that the declaratory judgment counterclaim was not an independent claim for affirmative relief because it did not seek relief beyond what the defendant

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would be entitled to upon disposition of the plaintiff’s claims, and did not survive the plaintiff’s nonsuit. Thus, the defendant was not entitled to attorney’s fees under the UDJA. In this case, Coffeehouse and the Trust did specifically plead for affirmative declaratory judgment relief as an independent claim, separate and apart from the request for partition and winding-up of the Partnership, which relief was granted by the Trial Court’s Order Granting Partial Summary Judgment and incorporated into the final Judgment. CR1 91, CR2 369, 437; Appendix, tabs 1, 8 and 9.

The Saks Parties also argue that Coffeehouse and the Trust improperly pleaded the claims for partition and winding-up of the partnership as a declaratory judgment action for the sole purpose of recovering attorney’s fees. However, it was necessary for Appellees to include a request for declaratory relief due to the Saks Parties’ vexatious insistence that they own interests in the Property and the Partnership despite the MSA, Arbitration Award, and Probate Court Orders providing otherwise. CR1 186-194, 198-199, 205-206, 245-261, 278, 281; Appendix, tabs 4, 5 and 6. Furthermore, in light of the Saks Parties’ unreasonable and burdensome claims, the attorney’s fees awarded against them are equitable and just.

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The UDJA is intended to settle and provide relief from uncertainty and insecurity with respect to rights, and is to be liberally construed and administered. Roberts, 394 S.W.3d at 50. Pursuant to Section 37.004 of the UDJA:

A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

Appendix, tab 10. That is exactly what Coffeehouse and the Trust requested and what the Court did—determine the validity of various instruments, including purported Assignments of Partnership interests and the McFadin Deed, in construction with the MSA, Arbitration Award, and Probate Court orders, and declare the rights and status of the parties thereunder. CR1 88-91.

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The Saks Parties state that “a party may not artfully plead a title dispute as a declaratory judgment action,” citing to I-10 Colony, Inc. v. Chao Kuan Lee, 393 S.W.3d 467, 475 (Tex. App.—Houston [14th Dist.] 2012, pet denied). The Saks Parties, however, have artfully left out an important part of the court’s holding in I-10 Colony, which actually provides:

Given the mandatory language in Property Code section 22.001 (“[a] trespass to try title action is the method of determining title”) (emphasis added), a party may not artfully plead a title dispute as a declaratory judgment action just to obtain attorney’s fees when that claim should have been brought as a trespass-to-try-title action.

A trespass-to-try-title lawsuit is an action to recover possession of land withheld from an owner with a right to immediate possession, and imposes unique pleading and proof requirements. I-10 Colony, 393 S.W.3d at 475; Florey, 212 S.W.3d at 449. Not all actions impacting title and possessory rights to property are necessarily trespass-to-try-title actions, and it is doubtful “that the legislature intended for the trespass-to-try title statute to displace or subsume every statutory or common law claim (e.g. suits to

46

rescind deeds) having such an impact.” Id. This case cannot be properly called a trespass-to-try title action.

The Saks Parties also cite Barfield v. Holland, 844 S.W.2d 759, 771 (Tex. App.—Tyler 1992, writ denied), in support of their argument that it is improper to use the UDJA to settle a land title dispute and seek an award of attorney’s fees. However, in Barfield, there was no question of “construction” or “validity” of the deeds by which the parties acquired their title, and, therefore, it was not the proper subject matter for a declaratory judgment. As in the I-10 Colony case, the court in Barfield found that the suit was an action for trespass-to-try-title. Barfield, 844 S.W.2d at 771. Also, in that case, there was no question of the ownership of a related partnership and the validity of assignments of interests in such partnership, as there is in this case.

This case is not a trespass-to-try-title action, and the Saks Parties do not argue that it should have properly been brought as one. There is no dispute between Coffeehouse and the Trust as to their ownership interests in the Property or the Partnership, or who is entitled to possession. This is a unique case in which it was necessary to invalidate instruments fraudulently filed by Sandra, and confirm that the Trust still exists as an owner of the Property and the Partnership, so that the Property could be

47

sold and the Partnership could be terminated. Furthermore, much of the requested declaratory relief has to do with voiding the Assignments of Partnership interests, and declaring the interests of its partners, which would not be the subject of a trespass-to-try-title or any other real property title claim. Therefore, the requests to invalidate the fraudulently filed Assignments and the McFadin Deed, and confirm ownership in the Property and the Partnership as a result of such determination, were properly asserted under the UDJA. Therefore, the Trial Court was statutorily authorized to award attorney’s fees to Coffeehouse and the Trust.

The Saks Parties further claim that the Judgments in this case did not include any substantial relief that was not recoverable under the causes of action for partition of the Property and winding-up of the Partnership, but the cases cited by the Saks Parties are not on point. In Aaron Rents, Inc. V. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex. App.—Austin 2006, no pet.), the plaintiff appealed a property tax decision of the Travis County Appraisal Review Board to the district court. The appellate court held that the plaintiff could not use the UDJA solely to obtain attorney’s fees because, when a statute provides an avenue for attacking an agency order, a declaratory judgment action will not lie to provide redundant remedies.

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Id. at 669. Another case cited by the Saks Parties, Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479 (Tex. App.—Houston [1st Dist.] 2006, no pet.), is a breach of contract case, in which both the plaintiff and defendant also pleaded for declaratory judgment. The court held that the plaintiffs were not entitled to attorney’s fees under the UDJA because they did not recover any actual damages, and they could not use declaratory relief, identical to the breach of contract claim, to recover attorney’s fees not otherwise available. Id. at 489-90. Similarly, the court held that, upon reversal of the judgment in favor of plaintiffs, the defendant was not entitled to attorney’s fees under the UDJA because its claim for declaratory relief was nothing more than a suit in avoidance of a contract, and it did not recover any actual damages either. Id. at 490-91. These cases are not applicable or determinative of this case.

It is clear that the declaratory relief requested by Coffeehouse and the Trust is not redundant of the other claims. In addition to asking the Trial Court to partition the Property by sale and to wind-up and terminate the Partnership, Appellees also asked the Court to void the invalid instruments and thus declare that Appellants and other parties owned no interest in the Property or the Partnership. This relief is necessary and related to, but not duplicative of, the request for partition of the Property

49

and winding-up and termination of the Partnership. The relief requested in this case is similar to that requested in the Roberts and the Wheeler cases, which were suits for partition and declaratory relief in which the appellate courts affirmed attorney’s fees awarded under the UDJA.

In Roberts, the plaintiff sought partition of real and personal property and a declaratory judgment relating to property inherited by her spouse, asking the Court to construe the wills and partition deed by which her spouse obtained his interest in the property in order to resolve the dispute about her ownership of these interests. 394 S.W.3d at 49. On summary judgment, the trial court granted the plaintiff’s request for declaratory relief and ruled that she was entitled to attorney’s fees. Id. at 48-49. Partition of the property was then ordered after a bench trial. Id. at 49. On appeal, the defendants argued that the plaintiff failed to establish statutory authority for a claim for attorney’s fees, but the court of appeals held that because the plaintiff sought declaratory judgment pursuant to the UDJA, the trial court was statutorily authorized to award reasonable and necessary attorney’s fees, in its discretion. Id. at 55.

At issue in the Wheeler case was real property originally owned by Ben Jones that was bequeathed to his four children, and then passed down to the children’s heirs. 2011 WL 4011455 at *1. Through a series of

50

purchases, Wheeler obtained a large fractional undivided interest in the property from the heirs of Ben Jones’ children. Id. Two of the Jones heirs filed suit against Wheeler and other known and unknown Jones heirs for partition of the property and to declare ownership interests, also seeking to recover the attorney’s fees incurred for the common benefit of the joint owners. Id. at *2. The appellate court found that the trial court did not abuse its discretion in awarding attorney’s fees under the UDJA, because, in addition to seeking a partition of the property, the plaintiffs also sought declaratory judgment construing the Jones will and certain deeds and other instruments, and determining the joint owners and their proportionate interests. Id. at *9-10.

Coffeehouse appropriately pleaded for declaratory relief as authorized under the UDJA, which relief was not redundant of its request for partition of the Property and winding-up and termination of the Partnership. The Trial Court was statutorily authorized to award attorney’s fees to Coffeehouse and the Trust and did not abuse its discretion in doing so.

ISSUE NO. 2(b): Did Appellants waive any issue regarding failure to segregate attorney’s fees?

Appellants also argue that Coffeehouse and the Trust failed to segregate their attorney’s fees under the UDJA from their other causes of

51

action and among the other parties, and therefore, the Trial Court’s award was an abuse of discretion. However, Appellants have waived this issue. In a bench trial, “if the trial court awards a fee based upon evidence of services or time spent that should have been segregated but was not, the opposing party must object to the trial court’s error by postjudgment motion in order to urge that error on appeal.” O’Farrill Avila v. Gonzalez, 974 S.W.2d 237, 249 (Tex. App.—San Antonio 1998, pet. denied) (citing Southern Concrete Co. v. Metrotec Fin. Inc., 775 S.W.2d 446, 450 (Tex. App.—Dallas 1989, no writ)). Appellants filed no motion for new trial, nor did they make any other postjudgment objection regarding failure to segregate. Thus, they have failed to preserve this issue for appeal.

ISSUE NO. 2(c): Did the Trial Court err in awarding the full amount of attorney’s fees requested by Coffeehouse and the Trust?

The Trial Court did not err in awarding the full amount of fees requested by Coffeehouse and the Trust because the attorneys’ discrete legal services advanced both the declaratory judgment claim and the suit for partition and winding-up of the Partnership. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). The need to segregate attorney’s fees is a question of law, subject to de novo review. Tony Gullo, 212 S.W.3d at 312; Approach Res. I, L.P. v. Clayton, 360 S.W.3d 632, 641

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(Tex. App.—El Paso 2012, no pet.); Penhollow Custom Homes, LLC v. Kim, 320 S.W.3d 366, 374 (Tex. App.—El Paso 2010, no pet.). In the Trial Court, Coffeehouse’s designated expert on attorney’s fees, attorney Paul T. Curl, testified as follows:

Q: And as I briefly addressed earlier, we did not segregate the fees in this case. So in your opinion would it have even been possible to segregate the fees and expenses incurred by Broadway Coffeehouse in pursuing its declaratory judgment action to declare the invalid deeds and other instruments void from the fees and expenses incurred by Broadway Coffeehouse in seeking partition of the property and termination of the partnership?

A: I don’t think that would be reasonable or practical.

Q: And if you could explain why.

A: Sure. As a practical matter, virtually everything that we did was geared toward the declaratory judgment claim: Fixing ownership interest in the property and the partnership, declaring the deeds void, the other

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instruments. And that was really key to this whole thing because the property could not be sold until that was done. And that was a problem with both these instruments clouding the title. So all --

everything -- virtually everything that we did advanced the declaratory judgment claim. And I don’t think it would be fair or reasonable to segregate those out and those other -- the other claims. Even if the other claims had not been there, 95 percent or more of the services would still have been required.

Q: And against whom or against what defendants are we seeking an award of attorneys’ fees today?

A: We are seeking an award of attorneys’ fees against Sandra Saks, Lee Nick McFadin, III, and Landen Saks because they are the parties who had fought us tooth and nail on this case.

Q: Okay. A: And again as to -- going back to your question about segregation, I don’t think you could fairly

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segregate as between the defendants because really they are the defendants who have caused the fight. The Trust was on our side from the word go.

Lauren Saks was on our side once we found out that she had answered. She had filed a pro se answer that initially was not served on us. Diana Flores opposed us represented by Ron Shaw, but when we got to the summary judgment hearing, she folded her tent and approved the judgment. But even she was only making the same arguments basically adopting the same things that Sandra Saks and Lee Nick McFadin were arguing. So there is no question that the opponents were Saks, McFadin, and Landen Saks. And even if the other defendants had not been in the case, we would have been doing virtually the same amount of work.

So I don’t think we can segregate them out to the defendants.

Dec. RR 44:22-45:23.

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The standard set forth in Tony Gullo does not require more precise proof for attorney’s fees than for any other claims or expenses. 212 S.W.3d at 314. Based on Mr. Curl’s testimony, the Trial Court properly determined that segregation of the requested attorney’s fees was not necessary, and did not err in awarding the full amount of fees asked for at trial. See Tony Gullo, 212 S.W.3d at 314 (explaining that, for the trial court to determine that segregation of the contract and fraud claim fees was not necessary, an opinion would have sufficed stating that 95 percent of the attorney’s drafting time would have been necessary even if there had been no fraud claim).

ISSUE NO. 3(a): Is Appellants’ Issue No. 3 regarding the amount of the supersedeas bond moot because it has been waived by Appellants, and does this Court therefore lack jurisdiction?

The Saks Parties endeavor to challenge the Trial Court’s Order setting the amount of the supersedeas bond as an abuse of discretion. CR2 457. Texas Rule of Appellate Procedure 24.4(a) prescribes the method for appellate review of the trial court’s ruling on the amount of a supersedeas bond. Appendix, tab 16. That review is “by motion in the court of appeals with jurisdiction . . . over the appeal from the judgment in

56

the case.” Id. Any further appellate review after that motion is “by petition for writ of mandamus in the Supreme Court.” Id.

The Saks Parties filed the motion prescribed by Rule 24.4(a) in this Court on November 3, 2014. Appendix, tab 12. This Court denied that motion in an Order signed on November 7, 2014. Appendix, tab 13. The Saks Parties then filed a Motion to Reconsider En Banc Motion to Suspend the Judgment and to Review Order Setting the Amount of Supersedeas Bond on November 17, 2014. Appendix, tab 14. The Court denied that motion in an Order signed on November 21, 2014. Appendix, tab 15. The Saks Parties did not file a petition for writ of mandamus in the Supreme Court of Texas as Rule 24.4(a) directs for further review from either of this Court’s Orders.

The Saks Parties present no new arguments on this issue in their Brief. They offer no ground or argument relating to supersedeas on which the Court has not already ruled in its review of the supersedeas based on the Saks Parties’ Motions under Rule 24.4. The Saks Parties do not argue this Court erred when it denied their motions for review of the trial court’s order setting the amount of security. Nor do The Saks Parties offer any reason why this Court should reconsider its prior Orders. The Saks Parties’ Issue No. 3 challenges the Trial Court’s Order setting the amount of the

57

supersedeas bond, but what the Trial Court did no longer matters. This Court has reviewed what the Trial Court did, and affirmed it.

Thus, the Saks Parties’ Issue No. 3 is moot because it has already been reviewed and decided. An issue is moot when the controversy ceases to exist or if the trial court’s actions cannot affect the parties’ rights. Hoard Gainer Indus. Co., Ltd. v. Gollin, No. 01-03-01320-CV, 2005 WL 1646116, *1-2 (Tex. App.—Houston [1st Dist.] July 14, 2005, no pet.) So it is here with the amount of the supersedeas bond. Because the issue is moot, the Court lacks jurisdiction to decide this issue. Id. And because the Saks Parties did not seek review in the Supreme Court of this Court’s Orders or even ask this Court to reconsider its Orders on this issue, the Saks Parties have waived any challenge to the amount for supersedeas. Review of a supersedeas amount is under an abuse of discretion standard, so it presents a question of law. Cf. In re Bass, 113 S.W.3d 735, 738 (Tex. 2003, orig. proc.) (abuse of discretion is error in application of legal principles). This Court has already decided that question of law by denying the Saks Parties’ Motions; therefore the law of the case doctrine and the policies on which that doctrine is based prevent further challenge on this issue as well. See Jones Gonzalez, P.C. v. Trinh, 340 S.W.3d 830, 836 (Tex. App.—San Antonio 2011, no pet.).

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Furthermore, there is no grant of jurisdiction or prescription of a method for review of orders on superseding judgments other than what is provided in Rule 24.4(a). A motion under Rule 24.4(a) is “[t]he proper method to seek review of a trial court’s determination” on suspending enforcement of a judgment. Reagan v. NPOT Partners I, L.P., No. 06-08- 00071-CV, 2009 WL 763565, at *7 (Tex. App.—Texarkana March 25, 2009, pet rev. dism’d). Thus, beyond mootness and waiver, Appellants’ Issue No. 3 also fails for lack of jurisdiction on this basis as well. Appellants cite Appellate Rule of Procedure 25 as the basis for jurisdiction over their appeal. Appellants’ Brief, at 2. Rule 25, however, is not a grant of jurisdiction. It provides the method for commencing an appeal when the Court has subject matter jurisdiction for an appeal. Most commonly, that jurisdiction is under Section 51.012 of the Texas Civil Practice and Remedies Code or Section 22.220 of the Texas Government Code. Those statutes provide this Court jurisdiction over appeals from final judgments, not orders on supersedeas bonds. Appellate courts generally lack jurisdiction over appeals from post-judgment orders on enforcing a judgment. Davis, 2015 WL 1004357 at *5. Following that rule, there is no jurisdiction (under Section 51.012 or Section 22.220) for an appeal from an order on suspending enforcement of a judgment.

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Finally, this Court would not have jurisdiction over an appeal of the Order setting the amount of the supersedeas bond because the Saks Parties’ Notice of Appeal of this Order was untimely. Pursuant to Texas Rule of Appellate Procedure 26.1, a notice of appeal must be filed within thirty days after the judgment is signed. Appendix, tab 16. The Trial Court’s Order on the supersedeas bond was signed on October 31, 2014. CR 457; Appendix, tab 11. On February 20, 2015, 112 days later and on the same day that they filed their brief, the Saks Parties filed a Supplement to Notice of Appeal attempting to add the Order setting the amount of the supersedeas bond to this appeal. Appendix, tab 17. Because the Supplement to Notice of Appeal was filed almost four months after the Order was signed, the appeal was not timely perfected, and the appeal of the Order on the supersedeas bond must be dismissed. See In re A.L.B., 56 S.W.3d 651 (Tex. App.—Waco 2001, no pet.).

ISSUE NO. 3(b): Did the Trial Court abuse its discretion in setting the amount of the supersedeas bond?

Finally, if the Court does consider (or reconsider) the substance of the Saks Parties’ Issue No. 3, the Court should reject it. Review of the amount of security for supersedeas is a test for abuse of discretion. In re Estate of Hernandez, No. 04-14-00046-CV, 2014 WL 1713566, at *2 (Tex.

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App.—San Antonio April 30, 2014, no pet.) The question for this Court is not whether it would have reached the same conclusion as the Trial Court, but whether the Trial Court acted without reference to any guiding rule or principle or acted arbitrarily or unreasonable. Id.

The Trial Court did what Texas Rule of Appellate Procedure 24.2 prescribes. To the extent the Judgment involves an interest in real property, Rule 24.2(a)(2)(A) applies, and directs the Trial Court to set an amount of security of at least the value of the property’s rent or revenue. CR2 459; Appendix, tab 16. The evidence of that monthly rent or revenue was undisputed, and the trial court multiplied the rent by a reasonable estimate of the time for disposing of Appellants’ inevitable appeals. Nov. 14 RR 11:4-19, 29:9-30:6, 50:8-51:20.

If the Judgment is not subject to Rule 24.2(a)(2)(A), then Rule 24.2(a)(2)(B) applies, and the Trial Court had discretion to set the necessary security in an amount the Trial Court decided would be necessary to protect Coffeehouse and the Trust from damage that an appeal might cause. CR2 459; Nov. RR 21:9-25, 31:16, 32:9; Appendix, tab 16. The Trial Court’s Order, supported by the evidence, does just that, and the Trial Court did not abuse its discretion. In either event, the Saks Parties’ Issue No. 3 should be overruled.

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PRAYER

WHEREFORE, Appellees respectfully pray that the Trial Court’s Judgment be affirmed and that the Order setting the amount of the supersedeas bond be affirmed, or that appeal of that Order be dismissed for lack of jurisdiction.

Respectfully Submitted,

CURL STAHL GEIS

A PROFESSIONAL CORPORATION 700 North St. Mary’s Street, Suite 1800 San Antonio, Texas 78205

Telephone: (210) 226-2182 Telecopier: (210) 226-1691

BY: /s/ Brittany M. Weil

PAUL T. CURL

State Bar No. 05255200

ptcurl@csg-law.com

BRITTANY M. WEIL

State Bar No. 24051929

bmweil@csg-law.com

HERBERT S. HILL

State Bar No. 24087722

hshill@csg-law.com

ATTORNEYS FOR APPELLEE

BROADWAY COFFEEHOUSE, LLC

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BINGHAM & LEA, PC 319 Maverick Street San Antonio, Texas 78212 Telephone: (210) 224-2894 Telecopier: (210) 224-0141

BY: /s/ Royal Lea ROYAL LEA State Bar No. 12069680 royal@binghamandlea.com

ATTORNEY FOR APPELLEE MARCUS ROGERS, AS TRUSTEE FOR THE SAKS CHILDREN TRUST A/K/A ATFL&L

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CERTIFICATE OF COMPLIANCE I certify that this Brief of Appellant contains 11,480 words (excluding the sections excepted under Texas Rule of Appellate Procedure 9.4(i)(1)).

/s/ Brittany M. Weil

BRITTANY M. WEIL

CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of April, 2015, a true and correct copy of the above and foregoing document was sent via electronic service through ProDoc and/or electronic mail, to:

Mr. Royal B. Lea, III

Bingham & Lea, P.C.

319 Maverick Street

San Antonio, Texas 78212

Telecopier: (210) 224-0141 Email: royal@binghamandlea.com

Mr. Philip M. Ross

1006 Holbrook Road

San Antonio, Texas 78218

Email: ross_law@hotmail.com

Ms. Lauren Saks Merriman

825 West Fulton Market, Unit 2 Chicago, Illinois 60607

Email: laurenmerriman@theblackbook-group.com

/s/ Brittany M. Weil

BRITTANY M. WEIL

APPENDIX

TAB 1

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FILED 6/9/2014 2:23:28 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Maria Jackson

TAB 2

TAB 3

TAB 4

TAB 5

TAB 6

TAB 7

Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00518-CV

Sandra Garza DAVIS f/k/a Sandra C. Saks and Landen Saks, Appellants

v.

Lauren

Lauren Saks MERRIMAN and Marcus P. Rogers, Interim Trustee, Appellees

No. 04-13-00875-CV

Sandra SAKS, Margaret Landen Saks, and Lee Nick McFadin III Appellants

v.

Lauren Saks a/k/a Gloria Lauren Lauren SAKS a/k/a Gloria Lauren Nicole Saks and Marcus P. Rogers, Interim Trustee, Appellees

From the Probate Court No. 1, Bexar County, Texas Trial Court No. 2011-PC-3466 Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice

Delivered and Filed: March 4, 2015 AFFIRMED IN PART, DISMISSED FOR LACK OF JURISDICTION IN PART In these consolidated appeals, the appellants, Margaret Landen Saks and her mother, Sandra C. Saks, challenge a judgment confirming an arbitration award and an order in aid of

04-13-00518-CV; 04-13-00875-CV

enforcement of judgment. The appellees, Lauren Saks and Marcus P. Rogers, urge us to affirm the judgment confirming the arbitration award and to dismiss for lack of jurisdiction the appeal from the order in aid of enforcement of judgment. We affirm the judgment confirming the arbitration award, but dismiss for lack of jurisdiction the appeal from the order in aid of enforcement of judgment.

BACKGROUND

These appeals arise from disputes concerning an inter vivos trust. In 1991, Sandra created the trust for the benefit of her children, “Gloria Lauren Nicole Saks [‘Lauren’] and Margaret Landen Saks Merriman [‘Landen’] and any other children later born or legally adopted . . . by Sandra Saks [‘Sandra’].” In accordance with the terms of the trust agreement, Sandra’s sister, Diane Flores, was appointed trustee. Lauren and Landen are the trust’s sole beneficiaries.

In August 2011, Lauren filed suit against Flores, the trustee, and Sandra, the settlor, in a statutory probate court in Bexar County, Texas. The suit, which alleged breaches of fiduciary duty and failures to comply with the trust agreement, sought an accounting and a constructive trust. Lauren also sought Flores’s removal as trustee. On December 28, 2011, the probate court appointed Marcus P. Rogers as interim trustee. Thereafter, Rogers submitted a report to the probate court in which he concluded that any attempt by Flores to terminate the trust was ineffective.

On April 2, 2012, the parties entered into a mediated settlement agreement (“MSA”). The MSA required the parties to resolve future disputes by mediation and arbitration. Specifically, the MSA provided,

If one or more disputes arise with regard to the interpretation and/or performance of this Agreement or any of its provisions, including the form of further documents to be executed, the Parties agree to further mediation in an attempt to resolve same with Thomas Smith, the Mediator[] who facilitated this settlement. In the event a dispute arises between the Parties, it is hereby agreed that the dispute shall be referred to Thomas Smith, the Mediator herein, for arbitration in accordance with the applicable United States Arbitration and Mediation Rules of Arbitration. The

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arbitrator’s decision shall be final and legally binding and judgment may be entered thereon . . . .

On May 8, 2012, the probate court signed an order approving the MSA and authorizing Rogers, the interim trustee, to sign the MSA. However, the order approving the MSA did not dismiss the claims in the underlying suit.

On August 21, 2012, Lauren filed a motion to compel arbitration, claiming that matters regarding the interpretation and performance of the MSA remained unresolved. On September 4, 2012, the probate court, in accordance with the MSA, ordered Sandra, Lauren, Landen, and Rogers to attend mediation and, if necessary, arbitration. The arbitration took place on October 18, 2012. The arbitrator’s award ordered Sandra and Flores to execute certain documents conveying to the trust all of their rights, title, and interest in certain property “no later than October 31, 2012.”

Sandra filed a motion asking the probate court to vacate the arbitrator’s award. The motion was denied. Landen did not ask the probate court to vacate the arbitrator’s award.

On May 7, 2013, the probate court signed a final judgment confirming the arbitrator’s award. The probate court incorporated the arbitration award into its judgment and entered it as a judgment of the court. The arbitration award ordered Sandra and Landen to execute certain conveyance documents. Sandra and Landen appealed the judgment confirming the arbitrator’s award. This appeal was docketed in this court as appellate cause number 04-13-00518-CV.

On November 14, 2013, the trial court signed an order titled, “Order in Aid of Enforcement of Judgment.” In this order, the probate court found that Sandra and Landen had failed to comply with the arbitration award and the judgment confirming the arbitration award by failing to execute the conveyance documents as previously ordered, and deemed the documents executed. Sandra and Landen appealed this order. The latter appeal was docketed in this court as appellate cause number 04-13-00875-CV.

04-13-00518-CV; 04-13-00875-CV

JUDGMENT CONFIRMING THE ARBITRATION AWARD An arbitration award is given the same effect as a judgment of last resort and is conclusive as to all matters of fact and law. CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002); Stieren v. McBroom, 103 S.W.3d 602, 605 (Tex. App.—San Antonio 2003, pet. denied). We review the trial court’s judgment confirming an arbitration award de novo. Corr. Products Co., Ltd. v. Gaiser Precast Constr., 394 S.W.3d 818, 823-24 (Tex. App.—El Paso 2013, no pet.); GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 262 (Tex. App.—San Antonio 2003, pet. denied). In conducting this review, we indulge all reasonable presumptions in favor of upholding the arbitration award. Gaiser Precast Constr., 394 S.W.3d at 824; GJR Mgmt. Holdings, 126 S.W.3d at 262. “Because Texas law favors arbitration, judicial review of an arbitration award is extraordinarily narrow.” E. Texas Salt Water Disposal Co., Inc. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010).

No one disputes that the arbitration agreement in this case is governed by the Texas Arbitration Act (“TAA”). See TEX. CIV. PRAC. & REM. CODE ANN. 171.001-.098 (West 2011). The TAA requires a trial court to confirm an arbitration award upon a party’s application unless a party offers grounds for vacating, modifying, or correcting the award. Callahan & Assoc. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841, 844 (Tex. 2002) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 171.087 (West 2011)). When no grounds for vacating the award are presented, the trial court “on application of a party, shall confirm the award.” TEX. CIV. PRAC. & REM. CODE § 171.087.

Bexar County Probate Courts Nos. 1 and 2 are statutory probate courts. See TEX. GOV’T CODE ANN. § 25.0171(c) (West Supp. 2014). Statutory probate courts have jurisdiction over actions by or against a trustee and actions involving inter vivos trusts. See TEX. ESTATES CODE ANN. § 32.006 (West 2014). This jurisdiction is concurrent with the jurisdiction of the district courts. See TEX. ESTATES CODE ANN. § 32.007 (West 2014). Statutory probate courts also have

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jurisdiction over other matters, such as probate proceedings. Stauffer v. Nicholson, 438 S.W.3d 205, 215 (Tex. App.—Dallas 2014, no pet.). Jurisdictional Arguments As a threshold matter, we note the arguments presented by Sandra and Landen are unrelated to any grounds presented in Sandra’s motion to vacate the arbitration award. 1 Instead, Sandra and Landen argue the probate court was deprived of subject matter jurisdiction both at the time it compelled arbitration and at the time it rendered judgment confirming the arbitration award. 2 In making these jurisdictional arguments, Sandra and Landen acknowledge that the probate court acquired subject matter jurisdiction over Lauren’s suit. However, according to Sandra and Landen, prior to compelling arbitration, the probate court lost subject matter jurisdiction either because (1) the trust had terminated or (2) the probate court’s plenary power had expired. In response, Lauren and Rogers argue the probate court did not lose subject matter jurisdiction prior to compelling arbitration or prior to confirming the arbitration award.

We will address both jurisdictional theories presented by Sandra and Landen. Under their first theory, that the probate court lost subject matter jurisdiction because of the termination of the trust, Sandra and Landen contend that under the language of the trust agreement, Flores, as trustee,

1 Landen filed a motion for new trial but did not file a motion to vacate the arbitration award.

2 In appellate cause number 04-13-00518-CV, Sandra and Landen state their issues as follows:

1. Did the trial court’s plenary power end on June 9, 2012, which was 30 days after the M[ediated]

S[ettlement] A[greement] was approved on May 8, 2012?

2. Did the court lack jurisdiction to compel the parties to arbitration pursuant to an [o]rder dated September 5, 2012?

3. Was the arbitration award void because arbitration was commenced pursuant to a void court order rather than pursuant to a petition for arbitration filed in accordance with the United States Arbitration and Mediation Rules of Arbitration as provided in the Mediated Settlement Agreement?

4. Was the trial court’s [j]udgment signed on May 7, 2013, approving a void arbitration award also void?

04-13-00518-CV; 04-13-00875-CV

was authorized to terminate the trust and distribute the trust assets to the income beneficiaries. They further contend that, on or about December 21, 2011, Flores terminated the trust in accordance with the trust agreement, and the termination deprived the probate court of jurisdiction to compel arbitration.

In response, Lauren and Rogers argue the trust was never terminated. This argument is supported by the record. Both the MSA reached by the parties and the arbitration award are premised on the notion that the trust was not terminated. Additionally, Lauren argues that, even if the trust had been terminated, the probate court would not have been deprived of jurisdiction. According to Lauren, the probate court’s jurisdiction was invoked when she filed the underlying suit alleging claims for breach of fiduciary duty and failures to comply with the trust agreement. Lauren contends that even if the trust had been terminated on December 21, 2011, her claims would have survived the termination of the trust, and therefore, the probate court would have retained subject matter jurisdiction. We find Lauren and Rogers’s arguments convincing. We conclude that the probate court was not deprived of jurisdiction based on the argument that the trust was terminated.

Under their second theory, Sandra and Landen argue that the order compelling arbitration and the judgment confirming the arbitration award are void because they were signed after the probate court’s plenary power expired. This argument is based on the theory that the order approving the MSA constituted rendition of a final judgment and the probate court’s jurisdiction ended thirty days after it signed the order approving the MSA.

Mere approval of a settlement agreement does not constitute rendition of judgment. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995). And, as a general rule, “a judgment issued without a conventional trial is final if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a

04-13-00518-CV; 04-13-00875-CV

final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). Courts determine whether an order amounts to a final judgment from its language and from the record in the case. Id. at 195.

Here, the order approving the MSA provided, in relevant part,

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the Court approves the Mediated Settlement Agreement attached to the Motion to Approve Settlement Agreement as Exhibit “A;” that Marcus P. Rogers, Interim Trustee of the Saks Children Family Trust or ATFL&L, is authorized to sign the Mediated Settlement Agreement attached to this Motion.

Thus, the order approving the MSA did not dispose of all claims and parties before the probate court, nor did it state with unmistakable clarity that it was a final judgment. See Lehmann, 39 S.W.3d at 192-93. Additionally, nothing in the record indicates that the order approving the MSA was a final judgment. Because the MSA was not a final judgment, the probate court’s plenary power did not expire thirty days after the probate court signed the order.

The only case cited by Sandra and Landen that arguably supports their jurisdictional arguments is Goodman v. Summit at West Rim, Ltd., 952 S.W.2d 930 (Tex. App.—Austin 1997, no pet.). In Goodman, the executor of a decedent’s estate filed suit in the probate court to clear title to property owned by the estate. Id. at 932. In response, the defendant brought third-party claims against other entities. Id. Initially, the probate court exercised its ancillary jurisdiction over the third-party claims. Id. However, once matters concerning the estate were settled, the probate court dismissed all of the claims by and against the estate. Id. Thereafter, the third-party defendants moved to dismiss the claims against them on the ground that, once the claims involving the estate were settled, the probate court lacked subject matter jurisdiction to consider the ancillary claims. Id. The probate court agreed and dismissed the ancillary claims from the probate court. Id. The court of appeals upheld the dismissal, noting that the “probate court had discretion to resolve ancillary claims against third parties only to the extent that such claims were necessary to resolve

04-13-00518-CV; 04-13-00875-CV

claims within its original jurisdiction. . . . The court’s discretion undoubtedly vanished with the dismissal of the estate from the probate proceeding.” Id. at 934.

Sandra and Landen’s reliance on Goodman is misplaced. Goodman involved the probate court’s ancillary jurisdiction over a claim related to a decedent’s estate. Id. at 933. However, unlike Goodman, the present case was not a probate proceeding and it did not involve the exercise of ancillary jurisdiction. See TEX. ESTATES CODE ANN. § 22.029 (West 2014) (defining probate proceedings as proceedings or matters relating to a decedent’s estate). Instead, the present case was an action against a trustee and it involved an inter vivos trust. See TEX. ESTATES CODE ANN. § 32.006; Nicholson, 438 S.W.3d at 214-15 (acknowledging that a statutory probate court has jurisdiction not only over matters against a trustee or involving an inter vivos trust, but also over probate proceedings). Thus, Goodman is inapplicable to the present case.

We conclude the probate court had subject matter jurisdiction at the time it compelled arbitration and at the time it rendered judgment confirming the arbitration award. 3 We, therefore, overrule Sandra and Landen’s arguments that the order compelling arbitration and the judgment confirming the arbitration award were void. Remaining arguments Rule 38.1(i) of the Texas Rules of Appellate Procedure requires a brief to contain a “clear and concise argument for the contentions made with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). An appellate issue unsupported by argument or citation to the record or by appropriate legal authority presents nothing for our review. Blankinship v. Brown, 399 S.W.3d 303, 307 (Tex. App.—Dallas 2013, pet. denied). “Failure to cite legal authority or to

3 We further note that the Texas Arbitration Act confers jurisdiction on trial courts to confirm arbitration awards at any time. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.082(a) (West 2011) (“The filing with the clerk of the court of an application for an order under this chapter, including a judgment or decree, invokes the jurisdiction of the court.”); see also §§ 171.081; 171.087 (West 2011).

04-13-00518-CV; 04-13-00875-CV

provide substantive analysis of the legal issues presented results in waiver of the complaint.” In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana 2010, no pet.). As the reviewing appellate court, we have neither a duty nor a right to perform an independent review of the record and applicable law to determine if there was error. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).

In their briefs, Sandra and Landen attempt to raise several other issues concerning the order compelling arbitration and the judgment confirming the arbitration award. However, the arguments made in support of these issues are wholly unsupported by citation to appropriate legal authority. We, therefore, conclude that Sandra and Landen’s remaining issues challenging the judgment confirming the arbitration award present nothing for our review. See TEX. R. APP. P. 38.1(i).

ORDER IN AID OF ENFORCEMENT OF JUDGMENT Next, Sandra and Landen challenge the probate court’s order in aid of enforcement of judgment. 4 This order states that Sandra and Landen failed to execute certain conveyance documents as ordered in the judgment confirming the arbitration award and deems these documents executed “by operation of law.”

Generally, post-judgment orders made for the purpose of carrying into effect a prior judgment are not subject to appeal because they are not final judgments. Wagner v. Warnasch, 295 S.W.2d 890, 893 (Tex. 1956); Walter v. Marathon Oil Corp., 422 S.W.3d 848, 855 (Tex. App.— Houston [14th Dist.] 2014, no pet.). A writ of execution and orders incident to such a writ are generally not appealable. Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex. App.—San Antonio 2001, no pet.). However, there are exceptions to this rule. A few types of post-judgment orders, such as

4 Lee Nick McFadin III also filed a notice of appeal in appellate cause number 04-13-00875-CV. Rogers has moved to dismiss McFadin from this appeal because McFadin was not a party below. Because we conclude that we have no jurisdiction over an appeal from the order in aid of enforcement of judgment, Rogers’s motion to dismiss McFadin is denied as moot.

04-13-00518-CV; 04-13-00875-CV

those in the nature of a mandatory injunction, are appealable. Walter, 422 S.W.3d at 855; id.; see Kennedy v. Hudnall, 249 S.W.3d 520, 523-24 (Tex. App.—Texarkana 2008, no pet.) (concluding a particular turnover order was not in the nature of a mandatory injunction and therefore was not appealable).

Here, Lauren argues that the general rule applies in this case, and therefore, the appeal from the order in aid of enforcement of judgment must be dismissed. We agree that the order in aid of enforcement of judgment is not an appealable order. It is not in the nature of a mandatory injunction; it merely carries into effect the judgment confirming the arbitration award. Thus, it is not the type of post-judgment order that is reviewable by appeal. The appeal from the order in aid of enforcement of judgment is therefore dismissed for lack of jurisdiction. See Walter, 422 S.W.3d at 855-56 (dismissing appeal for lack of jurisdiction when challenged order did not fall within the limited class of appealable, post-judgment orders); Qualia, 37 S.W.3d at 129 (dismissing for lack of jurisdiction appeal from an order that simply provided for enforcement of a judgment in Mexico).

DAMAGES FOR FRIVOLOUS APPEAL In a cross-issue, Rogers urges this court to impose sanctions against Sandra and Landen for filing frivolous appeals. Rule 45 of the Texas Rules of Appellate Procedure allows an appellate court, after a determination that an appeal is frivolous, to award to the prevailing party “just damages.” TEX. R. APP. P. 45. Typically, appellate courts award the amount of attorney’s fees incurred by the appellee as proven by testimony or affidavit. Walker v. Hardin, No. 04-03-00864- CV, 2005 WL 899926, at *2 (Tex. App.—San Antonio April 20, 2005, no pet.); see Smith v. Marshall B. Brown, P.C., 51 S.W.3d 376, 382 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (awarding $5,000.00 in appellate attorney’s fees which were proven by affidavit). Here, however, Rogers has not provided an affidavit or other proof of his attorney’s fees and expenses involved in

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responding to these appeals. We, therefore, deny Rogers’s request for sanctions against Sandra and Landen for filing frivolous appeals. See Walker, 2005 WL 899926, at *2 (declining to award appellee attorney’s fees for a frivolous appeal in the absence of proof).

CONCLUSION

The judgment confirming the arbitration award is affirmed. The appeal from the order in aid of enforcement of judgment is dismissed for lack of jurisdiction.

Karen Angelini, Justice

TAB 8

TAB 9

TAB 10 § 37.004. Subject Matter of Relief, TX CIV PRAC & REM § 37.004

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal Subtitle C. Judgments Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.004 § 37.004. Subject Matter of Relief

Effective: June 15, 2007

Currentness

(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

(b) A contract may be construed either before or after there has been a breach.

(c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties.

Credits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2007, 80th Leg., ch. 305, § 1, eff. June 15, 2007.

Notes of Decisions (469)

V. T. C. A., Civil Practice & Remedies Code § 37.004, TX CIV PRAC & REM § 37.004 Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 37.009. Costs, TX CIV PRAC & REM § 37.009

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal Subtitle C. Judgments Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.009 § 37.009. Costs

Currentness

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.

Credits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (690)

V. T. C. A., Civil Practice & Remedies Code § 37.009, TX CIV PRAC & REM § 37.009 Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

TAB 11

TAB 12

ACCEPTED

04-14-00734-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

11/3/2014 4:26:18 PM

KEITH HOTTLE

CLERK

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TAB 13

Broadway Coffeehouse,

Fourth Court of Appeals

San Antonio, Texas

November 7, 2014

No. 04-14-00734-CV

Sandra SAKS, Lee Nick McFadin, III and Margaret Landen Saks, Appellants

v.

BROADWAY COFFEEHOUSE, LLC, Appellee

From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-17001 Honorable Larry Noll, Judge Presiding

ORDER

the supersedeas bond ordered by the trial court is DENIED.

_________________________________

Catherine Stone, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 7th day of November, 2014.

___________________________________

Keith E. Hottle

Clerk of Court

TAB 14

ACCEPTED

04-14-00734-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

11/16/2014 10:10:01 PM

KEITH HOTTLE

CLERK

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TAB 15

Fourth Court of Appeals

San Antonio, Texas

November 21, 2014

No. 04-14-00734-CV

Sandra SAKS, Lee Nick McFadin, III and Margaret Landen Saks, Appellants

v.

BROADWAY COFFEEHOUSE, LLC, Appellee

From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-17001 Honorable Antonia Arteaga, Judge Presiding

ORDER

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice

Sandee Bryan Marion, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

The court has considered the appellants' motion to reconsider en banc motion to suspend the judgment and to review order setting the amount of supersedeas bond, and the motion is DENIED.

_________________________________

Catherine Stone, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 21st day of November, 2014.

___________________________________

Keith E. Hottle

Clerk of Court

TAB 16 24.2. Amount of Bond, Deposit or Security, TX R APP Rule 24.2

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)

Rule 24. Suspension of Enforcement of Judgment Pending Appeal in Civil Cases (Refs & Annos)

TX Rules App.Proc., Rule 24.2 24.2. Amount of Bond, Deposit or Security Currentness

(a) Type of Judgment.

(1) For Recovery of Money. When the judgment is for money, the amount of the bond, deposit, or security must equal the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment. But the amount must not exceed the lesser of:

(A) 50 percent of the judgment debtor's current net worth; or

(B) 25 million dollars.

(2) For Recovery of Property. When the judgment is for the recovery of an interest in real or personal property, the trial court will determine the type of security that the judgment debtor must post. The amount of that security must be at least:

(A) the value of the property interest's rent or revenue, if the property interest is real; or

(B) the value of the property interest on the date when the court rendered judgment, if the property interest is personal.

(3) Other Judgment. When the judgment is for something other than money or an interest in property, the trial court must set the amount and type of security that the judgment debtor must post. The security must adequately protect the judgment creditor against loss or damage that the appeal might cause. But the trial court may decline to permit the judgment to be superseded if the judgment creditor posts security ordered by the trial court in an amount and type that will secure the judgment debtor against any loss or damage caused by the relief granted the judgment creditor if an appellate court determines, on final disposition, that that relief was improper.

(4) Conservatorship or Custody. When the judgment involves the conservatorship or custody of a minor or other person under legal disability, enforcement of the judgment will not be suspended, with or without security, unless ordered by the trial court. But upon a proper showing, the appellate court may suspend enforcement of the judgment with or without security.

(5) For a Governmental Entity. When a judgment in favor of a governmental entity in its governmental capacity is one in which the entity has no pecuniary interest, the trial court must determine whether to suspend enforcement, with or without security,

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24.2. Amount of Bond, Deposit or Security, TX R APP Rule 24.2

taking into account the harm that is likely to result to the judgment debtor if enforcement is not suspended, and the harm that is likely to result to others if enforcement is suspended. The appellate court may review the trial court's determination and suspend enforcement of the judgment, with or without security, or refuse to suspend the judgment. If security is required, recovery is limited to the governmental entity's actual damages resulting from suspension of the judgment.

(b) Lesser Amount. The trial court must lower the amount of security required by (a) to an amount that will not cause the judgment debtor substantial economic harm if, after notice to all parties and a hearing, the court finds that posting a bond, deposit, or security in the amount required by (a) is likely to cause the judgment debtor substantial economic harm.

(c) Determination of Net Worth.

(1) Judgment Debtor's Affidavit Required; Contents; Prima Facie Evidence. A judgment debtor who provides a bond, deposit, or security under (a)(1)(A) in an amount based on the debtor's net worth must simultaneously file with the trial court clerk an affidavit that states the debtor's net worth and states complete, detailed information concerning the debtor's assets and liabilities from which net worth can be ascertained. An affidavit that meets these requirements is prima facie evidence of the debtor's net worth for the purpose of establishing the amount of the bond, deposit, or security required to suspend enforcement of the judgment. A trial court clerk must receive and file a net-worth affidavit tendered for filing by a judgment debtor.

(2) Contest; Discovery. A judgment creditor may file a contest to the debtor's claimed net worth. The contest need not be sworn. The creditor may conduct reasonable discovery concerning the judgment debtor's net worth.

(3) Hearing; Burden of Proof; Findings; Additional Security. The trial court must hear a judgment creditor's contest of the judgment debtor's claimed net worth promptly after any discovery has been completed. The judgment debtor has the burden of proving net worth. The trial court must issue an order that states the debtor's net worth and states with particularity the factual basis for that determination. If the trial court orders additional or other security to supersede the judgment, the enforcement of the judgment will be suspended for twenty days after the trial court's order. If the judgment debtor does not comply with the order within that period, the judgment may be enforced against the judgment debtor.

(d) Injunction. The trial court may enjoin the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the trial court may not make any order that interferes with the judgment debtor's use, transfer, conveyance, or dissipation of assets in the normal course of business.

Credits Eff. Sept. 1, 1997. Amended by Supreme Court Aug. 29, 2003 and Sept. 10, 2003, eff. Sept. 1, 2003; March 10, 2008, and Aug. 20, 2008, eff. Sept. 1, 2008. Approved by Court of Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.

Editors' Notes NOTES AND COMMENTS

Comment to 2008 change: Subdivision 24.2(c) is amended to clarify the procedure in determining net worth. A debtor's affidavit of net worth must be detailed, but the clerk must file what is tendered without determining whether it complies with the rule. If the trial court orders that additional or other security be given, the debtor is afforded time to comply. Subdivision 24.4(a) is revised to clarify that a party seeking relief from a supersedeas ruling should file a

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24.2. Amount of Bond, Deposit or Security, TX R APP Rule 24.2

motion in the court of appeals that has or presumably will have jurisdiction of the appeal. After the court of appeals has ruled, a party may seek review by filing a petition for writ of mandamus in the Supreme Court. See In re Smith / In re Main Place Custom Homes, Inc., 192 S.W.3d 564, 568 (Tex. 2006) (per curiam).

Notes of Decisions (83)

Rules App. Proc., Rule 24.2, TX R APP Rule 24.2 Current with amendments received through 3/15/2015

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24.4. Appellate Review, TX R APP Rule 24.4

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)

Rule 24. Suspension of Enforcement of Judgment Pending Appeal in Civil Cases (Refs & Annos)

TX Rules App.Proc., Rule 24.4 24.4. Appellate Review

Currentness

(a) Motions; Review. A party may seek review of the trial court's ruling by motion filed in the court of appeals with jurisdiction or potential jurisdiction over the appeal from the judgment in the case. A party may seek review of the court of appeals' ruling on the motion by petition for writ of mandamus in the Supreme Court. The appellate court may review:

(1) the sufficiency or excessiveness of the amount of security, but when the judgment is for money, the appellate court must not modify the amount of security to exceed the limits imposed by Rule 24.2(a)(1);

(2) the sureties on any bond;

(3) the type of security;

(4) the determination whether to permit suspension of enforcement; and

(5) the trial court's exercise of discretion under Rule 24.3(a).

(b) Grounds of Review. Review may be based both on conditions as they existed at the time the trial court signed an order, and on changes in those conditions afterward.

(c) Temporary Orders. The appellate court may issue any temporary orders necessary to preserve the parties' rights.

(d) Action by Appellate Court. The motion must be heard at the earliest practicable time. The appellate court may require that the amount of a bond, deposit, or other security be increased or decreased, and that another bond, deposit, or security be provided and approved by the trial court clerk. The appellate court may require other changes in the trial court order. The appellate court may remand to the trial court for entry of findings of fact or for the taking of evidence.

(e) Effect of Ruling. If the appellate court orders additional or other security to supersede the judgment, enforcement will be suspended for 20 days after the appellate court's order. If the judgment debtor does not comply with the order within that period, the judgment may be enforced. When any additional bond, deposit, or security has been filed, the trial court clerk must notify the appellate court. The posting of additional security will not release the previously posted security or affect any alternative security arrangements that the judgment debtor previously made unless specifically ordered by the appellate court.

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24.4. Appellate Review, TX R APP Rule 24.4

Credits Eff. Sept. 1, 1997. Amended by Supreme Court Aug. 29, 2003, eff. Sept. 1, 2003; March 10, 2008, and Aug. 20, 2008, eff. Sept. 1, 2008. Approved by Court of Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.

Editors' Notes NOTES AND COMMENTS

Comment to 2008 change: Subdivision 24.2(c) is amended to clarify the procedure in determining net worth. A debtor's affidavit of net worth must be detailed, but the clerk must file what is tendered without determining whether it complies with the rule. If the trial court orders that additional or other security be given, the debtor is afforded time to comply. Subdivision 24.4(a) is revised to clarify that a party seeking relief from a supersedeas ruling should file a motion in the court of appeals that has or presumably will have jurisdiction of the appeal. After the court of appeals has ruled, a party may seek review by filing a petition for writ of mandamus in the Supreme Court. See In re Smith / In re Main Place Custom Homes, Inc., 192 S.W.3d 564, 568 (Tex. 2006) (per curiam).

Notes of Decisions (15)

Rules App. Proc., Rule 24.4, TX R APP Rule 24.4 Current with amendments received through 3/15/2015

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26.1. Civil Cases, TX R APP Rule 26.1

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)

Rule 26. Time to Perfect Appeal (Refs & Annos)

TX Rules App.Proc., Rule 26.1 26.1. Civil Cases

Currentness

The notice of appeal must be filed within 30 days after the judgment is signed, except as follows:

(a) the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files:

(1) a motion for new trial;

(2) a motion to modify the judgment;

(3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or

(4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court;

(b) in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed;

(c) in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed; and

(d) if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.

Credits Eff. Sept. 1, 1997.

Notes of Decisions (432)

Rules App. Proc., Rule 26.1, TX R APP Rule 26.1 Current with amendments received through 3/15/2015

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38.1. Appellant's Brief, TX R APP Rule 38.1

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)

Rule 38. Requisites of Briefs (Refs & Annos)

TX Rules App.Proc., Rule 38.1 38.1. Appellant's Brief

Currentness

The appellant's brief must, under appropriate headings and in the order here indicated, contain the following:

(a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court's judgment or order appealed from, and the names and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8.

(b) Table of Contents. The brief must have a table of contents with references to the pages of the brief. The table of contents must indicate the subject matter of each issue or point, or group of issues or points.

(c) Index of Authorities. The brief must have an index of authorities arranged alphabetically and indicating the pages of the brief where the authorities are cited.

(d) Statement of the Case. The brief must state concisely the nature of the case (e.g., whether it is a suit for damages, on a note, or involving a murder prosecution), the course of proceedings, and the trial court's disposition of the case. The statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts.

(e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral argument should or should not be permitted. Any such statement must not exceed one page and should address how the court's decisional process would, or would not, be aided by oral argument. As required by Rule 39.7, any party requesting oral argument must note that request on the front cover of the party's brief.

(f) Issues Presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.

(g) Statement of Facts. The brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references.

(h) Summary of the Argument. The brief must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. This summary must not merely repeat the issues or points presented for review.

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38.1. Appellant's Brief, TX R APP Rule 38.1

(i) Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.

(j) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought.

(k) Appendix in Civil Cases.

(1) Necessary Contents. Unless voluminous or impracticable, the appendix must contain a copy of:

(A) the trial court's judgment or other appealable order from which relief is sought;

(B) the jury charge and verdict, if any, or the trial court's findings of fact and conclusions of law, if any; and

(C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argument is based, and the text of any contract or other document that is central to the argument.

(2) Optional Contents. The appendix may contain any other item pertinent to the issues or points presented for review, including copies or excerpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excerpts from the reporter's record, and similar material. Items should not be included in the appendix to attempt to avoid the page limits for the brief.

Credits Eff. Sept. 1, 1997. Amended by Supreme Court March 10, 2008, and Aug. 20, 2008, eff. Sept. 1, 2008. Approved by Court of Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.

Notes of Decisions (917)

Rules App. Proc., Rule 38.1, TX R APP Rule 38.1 Current with amendments received through 3/15/2015

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TAB 17

FILED 2/20/2015 1:59:13 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Cecilia Barbosa

CAUSE NO. 2013-CI-17001

BROADWAY COFFEEHOUSE LLC § IN THE DISTRICT COURT §

VS § §

MARCUS ROGERS, AS TRUSTEE FOR § 73RD JUDICIAL DISTRICT THE SAKS CHILDREN TRUST A/K/A § ATTFL&L, A TEXAS TRUST; SAKS § BROADWAY, LLC; SANDRA C. SAKS, § A/K/A SANDRA GARZA DAVIS; DIANE § M. FLORES, A/K/A DIANA GARZA § FLORES; LAUREN SAKS MERRIMAN § A/K/A GLORIA LAUREN NICOLE SAKS; § MARGARET LANDEN SAKS, A/K/A § LANDEN SAKS; AND LEE NICK § MCFADIN, III § BEXAR COUNTY, TEXAS

SUPPLEMENT TO NOTICE OF APPEAL

TO THE HONORABLE JUDGE PRESIDING AND TO THE JUSTICES OF THE FOURTH JUDICIAL DISTRICT COURT OF APPEALS:

COME NOW, SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN SAKS, by and through undersigned counsel, and file their Supplement to Notice of Appeal pursuant to TRAP Rule 25.1, and would show the Court as follows:

1 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN SAKS filed their Notice of Appeal on October 20, 2014.

2 Appellants identified the Judgment dated October 20, 2014 as the Order appealed from.

3 Appellants desire to add the Order granting partial summary judgment, dated August 25, 2014, which was incorporated into the Judgment, as well as the Order, dated October 31, 2014, setting the amount of the supersedeas bond, to the Orders appealed from. 4 The dates of the Orders appealed from are August 25, 2014, October 20, 2014, and October 31, 2014. 3 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN SAKS desire to appeal. 4 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN SAKS desire to appeal to the Fourth Court of Appeals, San Antonio, Texas. 5 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN SAKS are the parties filing this appeal. 6 This Notice of Appeal is being served on all parties to the court's Orders.

WHEREFORE, SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN SAKS hereby file this supplement to their notice of appeal. They also claim such further relief to which they may be justly entitled.

Respectfully submitted,

Philip M. Ross, SBN 17304200 1006 Holbrook Road

San Antonio, Texas 78218

Phone: 210/326-2100

Email: ross_law@hotmail.com

By: /s/ Philip M. Ross

Philip M. Ross

Attorney for SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN SAKS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been e-filed and served on February 20, 2015 by email pursuant to agreement to Paul T. Curl and Royal B. Lea, III.

/s/ Philip M. Ross

Philip M. Ross

TAB 18

TAB 19 § 11.057. Supplemental Provisions for Domestic General..., TX BUS ORG § 11.057

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos)

Title 1. General Provisions (Refs & Annos)

Chapter 11. Winding up and Termination of Domestic Entity Subchapter B. Winding up of Domestic Entity

V.T.C.A., Business Organizations Code § 11.057 § 11.057. Supplemental Provisions for Domestic General Partnership

Effective: September 1, 2011 Currentness

(a) Unless otherwise provided by the partnership agreement, a voluntary decision to wind up a domestic general partnership, other than a partnership described by Subsection (b), requires the express will of a majority-in-interest of the partners who have not assigned their interests. A voluntary decision to wind up a partnership under this subsection may be revoked in accordance with Sections 11.151 and 152.709(e).

(b) Unless otherwise provided by the partnership agreement, a voluntary decision to wind up a domestic general partnership that has a period of duration or is for a particular undertaking, or in which the partnership agreement provides for the winding up of the partnership on occurrence of a specified event, requires the express will of all of the partners. A voluntary decision to wind up a partnership under this subsection may be revoked in accordance with Sections 11.151 and 152.709(d).

(c) An event requiring the winding up of a domestic general partnership under Section 11.051(4) includes the following:

(1) in a general partnership for a particular undertaking, the completion of the undertaking, unless otherwise provided by the partnership agreement;

(2) an event that makes it illegal for all or substantially all of the partnership business to be continued, but a cure of illegality before the 91st day after the date of notice to the general partnership of the event is effective retroactively to the date of the event for purposes of this subsection; and

(3) the sale of all or substantially all of the property of the general partnership outside the ordinary course of business, unless otherwise provided by the partnership agreement.

(d) In addition to the events specified by Subsection (c), unless otherwise provided by the partnership agreement, if a domestic general partnership does not have a period of duration, is not for a particular undertaking, and is not required under its partnership agreement to wind up the partnership on occurrence of a specified event, an event requiring winding up of the partnership under Section 11.051(4) occurs on the 60th day after the date on which the partnership receives notice of a request for winding up the partnership from a partner, other than a partner who has agreed not to withdraw, or a later date as specified by the request, unless a majority-in-interest of the partners deny the request for winding up or agree to continue the partnership. The continuation of the business by the other partners or by those who habitually acted in the business before the request, other than the partner making the request, without any settlement or liquidation of the partnership business, is prima facie evidence of an agreement to continue the partnership under this subsection.

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§ 11.057. Supplemental Provisions for Domestic General..., TX BUS ORG § 11.057

(e) An event requiring winding up specified in Subsection (c)(1), (c)(3), or (d) may be canceled in accordance with Sections 11.152 and 152.709.

(f) “Majority-in-interest” means, with respect to all or a specified group of partners, partners who own more than 50 percent of the current percentage or other interest in the profits of the partnership that is owned by all of the partners or by the partners in the specified group, as appropriate.

Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. Amended by Acts 2007, 80th Leg., ch. 688, § 63, eff. Sept. 1, 2007; Acts 2011, 82nd Leg., ch. 139 (S.B. 748), § 18, eff. Sept. 1, 2011.

V. T. C. A., Business Organizations Code § 11.057, TX BUS ORG § 11.057 Current through the end of the 2013 Third Called Session of the 83rd Legislature

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§ 11.314. Involuntary Winding Up and Termination of..., TX BUS ORG § 11.314

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos)

Title 1. General Provisions (Refs & Annos)

Chapter 11. Winding up and Termination of Domestic Entity Subchapter G. Judicial Winding up and Termination

V.T.C.A., Business Organizations Code § 11.314 § 11.314. Involuntary Winding Up and Termination of Partnership or Limited Liability Company

Effective: September 1, 2009 Currentness

A district court in the county in which the registered office or principal place of business in this state of a domestic partnership or limited liability company is located has jurisdiction to order the winding up and termination of the domestic partnership or limited liability company on application by:

(1) a partner in the partnership if the court determines that:

(A) the economic purpose of the partnership is likely to be unreasonably frustrated; or

(B) another partner has engaged in conduct relating to the partnership's business that makes it not reasonably practicable to carry on the business in partnership with that partner; or

(2) an owner of the partnership or limited liability company if the court determines that it is not reasonably practicable to carry on the entity's business in conformity with its governing documents.

Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. Amended by Acts 2009, 81st Leg., ch. 84, § 25, eff. Sept. 1, 2009.

V. T. C. A., Business Organizations Code § 11.314, TX BUS ORG § 11.314 Current through the end of the 2013 Third Called Session of the 83rd Legislature

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