ACCEPTED 01-15-00429-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 12:00:31 PM CHRISTOPHER PRINE CLERK No. 01-15-00429-CV FILED IN 1st COURT OF APPEALS In The First District Court of Appeals HOUSTON, TEXAS Houston, Texas 9/11/2015 12:00:31 PM CHRISTOPHER A. PRINE Clerk Eileen K. Starbranch, Appellant, v. Elizabeth Howard Crowell, Appellee.

On Appeal from the 55th Judicial District Court Harris County, Texas Cause No. 2013-14192

BRIEF OF APPELLANT

Nelson S. Ebaugh NELSON S. EBAUGH, P.C.

2777 Allen Parkway, Ste. 1000 Houston, Texas 77019 Tel. (713) 752-0700 Fax (713) 739-0500 [email protected] Texas Bar Card No. 24007139 ATTORNEY FOR APPELLANT Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL

Appellant: Eileen K. Starbranch

Trial and Appellate Counsel Nelson S. Ebaugh for Appellant: NELSON S. EBAUGH, P.C.

2777 Allen Parkway, Ste. 1000 Houston, Texas 77019

Appellee: Elizabeth Howard Crowell

Trial and Appellate Counsel John B. Shely for Appellee: Courtney B. Glaser ANDREWS KURTH, LLP Travis, Suite 4200 Houston, TX 77002

i TABLE OF CONTENTS Page Identity of Parties and Counsel ............................................................................. i Index of Authorities ..............................................................................................v Statement of the Case.......................................................................................... xi Issue Presented ................................................................................................... xii Statement of the Facts ...........................................................................................1 A. Overview ..................................................................................................1 B. The parties and their relationships ...........................................................1 C. Neighbors ask Starbranch to execute signature pages for the Association ...............................................................................................3 D. Crowell files suit ......................................................................................4 E. Termination of the Association in 2013...................................................5 F. The trial court grants Crowell’s Motion for Summary Judgment on Attorney’s Fees against Starbranch ....................................................7 G. The trial court grants Starbranch’s motion to dismiss Crowell’s action for declaratory judgment as moot .............................................. 12 H. Order and Final Judgment leads to this appeal ..................................... 12 Summary of Argument ...................................................................................... 14 Argument............................................................................................................ 16 A. The Declaratory Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees .................................... 17

ii B. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding .............................................. 21 C. The attorneys’ fees are neither equitable nor just ................................. 25 1. The trial court awarded attorneys’ fees before it even declared the representative rights and interests of Crowell and Starbranch ........................................................................................ 26 2. It is inequitable and unjust to award attorneys’ fees against a person who was not even a proper party to the declaratory judgment action ................................................................................ 29 3. There is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case .................... 33 D. The summary judgment evidence raised genuine issues of material fact ........................................................................................... 36 1. The affidavit of Nelson S. Ebaugh raised genuine issues of material fact...................................................................................... 37 2. The affidavit of Eileen K. Starbranch raised genuine issues of material fact...................................................................................... 39 3. Genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objections to Crowell’s failure to segregate ........................................................................... 40 4. Crowell’s own evidence established the existence of genuine issues of material fact....................................................................... 42 E. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert ...................................................................... 43 F. The trial court granted more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees............ 46 Conclusion and Prayer ....................................................................................... 49 iii Certificate of Compliance .................................................................................. 51 Certificate of Service ......................................................................................... 51 Appendix ............................................................................................................ 52

iv INDEX OF AUTHORITIES Page Cases Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015 WL 778487, *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) .......................... 24 Almaguer v. Jenkins, 882 S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ).................................................. 22 AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506 (Tex. App.—Fort Worth 2009, no pet.) ........................................................ 41 Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d 380 (Tex. 2008) ........................................................................ 34 Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938 (Tex. App.—Houston [1st Dist.] 1993, no writ) .......................................... 42 Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied) ........................................................ 43 Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998)............................................. 22, 23, 25, 26, 35, 37 Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995) ........................................................................ 32 Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) .................................. 40 Caldwell v. Carrollton Air Conditioning, Inc., No. 07-05-0241-CV, 2007 WL 2390425 *6 (Tex. App.—Amarillo Aug. 22, 2007, pet. denied) (mem. op.) ................... 43 v Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002)..................................................................... 43, 48 City of Carrollton v. RIHR Inc., 308 S.W.3d 444 (Tex. App.—Dallas 2010, pet. denied) ......................................................... 27 Crown Asset Management, LLC v. Short, No. 01-08-00042-CV, 2009 WL 1025729 (Tex. App.—Houston [1st Dist.] Apr. 16, 2009, no pet.) (mem. op.) ................................................................................................. 28, 35 Engel v. Pettit, 713 S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) ........................................ 38 Extended Servs. Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) .......................................... 46 Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559-60 (Tex. App.—Eastland 2010, pet. denied) ................................................ 21, 22 Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000) ................................................................... 22 General Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591 (Tex. App.—Houston [1st Dist.] 1993, writ denied) .............................. 23, 36 Goldman v. Olmstead, 414 S.W.3d 346 (Tex. App.—Dallas 2013, pet. denied) ......................................................... 40 Guity v. C.C.I. Enter., Co., 54 S.W.3d 526 (Tex. App.—Houston [1st Dist.] 2001, no pet.) ........................................... 36

vi Hahn v. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 19 Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d 719 (Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 47 Hourani v. Katzen, 305 S.W.3d 239 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 49 Jay Petroleum, L.L.C. v. EOG Res., Inc., 332 S.W.3d 534 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 36 Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) ..................... 27, 32 LaGoye v. Victoria Wood Condo Ass’n, 112 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2003, no pet.)......................................... 49 MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) ........................................................................ 17 McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 377 (Tex. 1993) .................................................................. 46, 47 McGlown v. Ashford Park Homeowners Asso’, Inc., No. 01-08-00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] Jun. 11, 2009, no pet.) (mem. op.) ............................................................................................... 24, 25 Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14-10-00090-CV, 2011 WL 1364070 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem. op.) ..................................................................................................... 19

vii Parker v. Hunegnaw, 364 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 18 Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708 (Tex. App.—Corpus Christi 1998, pet. denied) ........................................... 23 Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ........................................... 49 Reiner v. Ehrlich, 66 A.3d 1132 (Md. Ct. Spec. App. 2013) ............................................... 30, 31 Sams v. N.L. Indus., Inc., 735 S.W.2d 486 (Tex. App.—Houston [1st Dist.] 1987, no writ) .......................................... 45 Sanders v. Capitol Area Council, 930 S.W.2d 905 (Tex. App.—Austin 1996, no writ) .............................................................. 45 SW. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) .................. 18, 19, 20, 21 State v. Heal, 917 S.W.2d 6 (Tex. 1996)....................................................................... 16, 25 State & County Mut. Fire Ins. Co. ex rel. S. United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404 (Tex. App.—Fort Worth 2007, no pet.) .................................................. 26, 29 Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991)............................................................................. 37

viii Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) .................................. 28 Texan Dev. Co. v. Hodges, 237 S.W.2d 436 (Tex. Civ. App.—Amarillo 1951, no writ) ................................................... 19 Tex. Div.-Tranter v. Carrozza, 876 S.W.2d 312 (Tex. 1994) ........................................................................ 34 Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) .................................................................. 40, 41 U.S. Nat’l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507 (Tex. App.—Houston [1st Dist.] De. 30, 2011, no pet.) (mem. op.) ........... 18 Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) .................................... 21 Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ........................................................................ 16 VICC Homeowners’ Ass’n v. Los Campeones, Inc., 143 S.W.3d 832 (Tex. App.—Corpus Christi 2004, no pet.) .................................................. 27 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) .......................................... 25 Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) ................................................................. 43 White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ) ....................................................... 22

ix Wise v. Conklin, No. 01-13-00840-CV, 2015 WL 1778612 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet. h.) (mem. op.) ...... 20 Yancy v. United Surgical Partners Intl., Inc., 236 S.W.3d 778 (Tex. 2007) ........................................................................ 16 Statues Md. Code Ann., Cts. & Jud. Proc. § 5-422 ........................................................ 30 Tex. Bus. Orgs. Code § 22.152 .................................................................... 30, 31 Tex. Bus. Orgs. Code § 22.221 .......................................................................... 30 Tex. Bus. Orgs. Code § 22.235 .......................................................................... 30 Tex. Civ. Prac. & Rem. Code § 37.009 ................................................. 21, 25, 28 Tex. Prop. Code § 204.006 ........................................................................ 2, 3, 32 Rules Tex. R. Civ. P. 5 ........................................................................................... 43, 48 Tex. R. Civ. P. 21(b) .......................................................................................... 45 Tex. R. Civ. P. 166a ........................................................................................... 46 Tex. R. Civ. P. 166a(c) .......................................................................... 36, 47, 49 Other Authorities TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) ................ 22 AM. JUR. 2d Quieting Title § 63 (Database updated May 2015) ............ 30, 31 C.J.S. Quieting Title § 3 (April 2015)........................................................... 19 BLACK’S LAW DICTIONARY 308 (9th ed. 2009) ................................................. 34 x STATEMENT OF THE CASE Nature of the Case: Elizabeth Howard Crowell sued twenty-seven defendants, including Eileen K. Starbranch, in connection with a property owners’ association that was allegedly invalidly formed. CR6-25.

Trial Court: The Honorable Jeff Shadwick, 55th District Court, Harris County, Texas, cause number 2013-14192.

Trial Court Proceedings: In 2013, Crowell settled with all of the defendants, except for Starbranch. CR866-908 (App. 4). In 2015, Crowell filed her Motion for Summary Judgment on Attorneys’ Fees against Starbranch. CR366-674.

Subsequently, Starbranch filed a motion to dismiss Crowell’s action for declaratory judgment arguing the claim was moot. 1st Supp. CR7-122.

Trial Court’s Disposition: The trial court did not find Starbranch liable to Crowell or declare the respective rights and interests of Crowell and Starbranch. However, the trial court did grant Crowell’s Motion for Summary Judgment on Attorneys’ Fees, in part, awarding attorneys’ fees in the amount of $26,462.00 against Starbranch. CR917.

The order became final and appealable on April 28, 2015, when the trial court entered a final judgment denying Starbranch’s motion for reconsideration and motion to dismiss. CR1059-60.

xi ISSUE PRESENTED Did the trial court err by granting Crowell’s Motion for Summary Judgment on Attorneys’ Fees?

A. Did the trial court err by awarding attorneys’ fees when Crowell’s claim for declaratory relief merely duplicated the issues set forth in her action to quiet title?

B. Did the trial court err by deciding a fact question on reasonable and necessary attorneys’ fees that was reserved for the jury?

C. Did the trial court abuse its discretion by awarding fees that were neither equitable nor just?

D. Did the trial court err by granting any relief to Crowell because there were fact issues as to the amount of reasonable and necessary attorneys’ fees?

E. Did the trial court abuse its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert?

F. Did the trial court err by granting more relief than was requested in Crowell’s motion?

xii STATEMENT OF THE FACTS A. Overview This appeal arises from Appellee Elizabeth Howard Crowell’s suit to quite title and declaratory judgment action seeking the same relief. CR19-21. Crowell sued a property owners’ association, its officers and directors, and all of the association members, claiming the association was not properly formed. CR6-25.

Among the defendants was Appellant Eileen K. Starbranch, who was not an officer or director but instead a mere member of the association. CR6-25.

Starbranch has never been found liable for anything, and the trial court made no declarations concerning the respective rights and interests of Crowell and Starbranch. CR1040 (App. 2); CR1059-60 (App. 1). Crowell’s suit to quiet title, and her duplicative declaratory judgment action, were dismissed without any finding of liability or declaration against Starbranch. CR1040 (App. 2); CR1059- (App. 1).

Yet the trial court, on summary judgment, ordered Starbranch to pay Crowell $26,462.00 in attorneys’ fees. CR917 (App. 3). That order underlies Starbranch’s appeal, and the facts germane to this appeal are as follows: B. The parties and their relationships In March 2009, Crowell acquired over 25,000 square feet of property in the Jandor Gardens subdivision with the following address: 5326 Institute Lane,

Houston, Texas 77005 (hereinafter, the “Property”). CR75; 92. Crowell and all of the defendants, including Starbranch, are homeowners in the Jandor Gardens subdivision. CR7-9.

In 2012, several of the homeowners in Jandor Gardens formed a property owners’ association for Jandor Gardens. CR99-124. The name of the property owners’ association was the “Jandor Gardens Association, Inc.,” a Texas nonprofit corporation (hereinafter, the “Association”). CR100.

To form a property owners’ association, a petition committee must be formed first. Tex. Prop. Code § 204.006(a). Defendants Anna Stock, Fred Sharifi, and Wyman H. Herendeen served on the petition committee for the Association.

CR154-157. Defendant Ron Whitte incorporated the Association. CR217-21.

Defendants Rick Rambo, Ron Witte, and Wyman H. Herendeen served as the initial directors for the Association. CR101; 191; 218-219.

Starbranch did not serve as either an officer or a director for the Association.

CR217-21. In addition, Starbranch did not serve on the petition committee for the Association. CR154-157. Instead, Starbranch was simply a member of the Association. CR755-58; 181; 211; 260; 302.

Starbranch has never asserted any interest in Crowell’s Property. CR758. In fact, Starbranch has disclaimed any and all interest in Crowell’s Property. CR758.

C. Neighbors ask Starbranch to execute signature pages for the Association.

It was not Starbranch’s idea to form the Association. CR755-58. On or about November 8, 2012, Starbranch was in her vehicle exiting her garage onto Dora Street, one of the streets in Jandor Gardens. CR756. While doing so, about four or five people claiming to be homeowners in Jandor Gardens stopped her and stated that they were forming the Association. CR756. They asked Starbranch to execute one of more signature pages in connection with the Association. CR756.

Starbranch executed the signature pages presented to her. CR181; 211; 260; 302.

On or about November 18, 2012, Starbranch noticed that one or more signature pages in connection with the Association were left on her front doorstep.

CR756. Starbranch picked up the document, signed where necessary, and then left the document on her front doorstep. CR756.

Starbranch did not sign two of the instruments that Crowell sought to declare as void in the trial court. Starbranch did not sign the “Notice of Formation of Petition Committee”1 or the “Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens Association, Inc.,” 2 which were the subjects of the first and fourth declarations sought by Crowell in her later suit to quiet title and duplicative declaratory judgment action. CR20.

CR154-57.

CR100-04.

Starbranch never proposed or circulated the instruments that created the Association. CR756. In addition, Starbranch did not file any instruments in the Harris County real property records in connection with the Association. CR756.

In short, Starbranch did nothing more than give her okay to the Association idea proposed by others. CR755-58.

D. Crowell files suit.

In her Original Petition, Crowell asserted an action to quiet title against all of the defendants, including Starbranch, wherein she alleged as follows: the documents filed by Defendants [including Starbranch] in the real property records (see Harris County Clerk File Nos. 20120521806, 20120521807, 20120521808, 201205436661, and 2012054016216) are clouds or encumbrances on Ms. Crowell’s right of ownership of the Property, which affect impair Ms. Crowell's title to the Property.

Ms. Crowell seeks to nullify the effect of these disputed filings and encumbrances. Ms. Crowell is entitled to a judgment that sets aside these improper filings and removes them as clouds on her title.

CR21.

Crowell sought the same the relief in her claim for declaratory relief against all of the defendants, including Starbranch. CR19-20. On April 7, 2013, a jury trial was requested and the jury fee was paid. CR56-58; 1093.

The following defendants did nothing more that than approve instruments prepared by the Association: Eileen K. Starbranch, George L. Parker, Eva K.

Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric

Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell later dismissed each of these defendants, except for Starbranch, from the lawsuit.

CR26-46; 59-61; 65-68; 72-74.

The Association was never Starbranch’s idea, and she did not oppose the relief that Crowell sought in her action to quiet title and in her declaratory judgment action (although Starbranch did contest her liability). CR724-810. In fact, upon learning that Crowell wanted Starbranch to execute a Rescission of Real Property Filings in connection with the Association, Starbranch voluntarily executed the same and filed it in the real property records. CR755-767.

E. Termination of the Association in 2013.

On June 24, 2013, Crowell filed her Motion for Summary Judgment as to Liability against several of the defendants in this lawsuit. CR75-344. In her summary judgment motion, Crowell sought partial summary judgment on her action for declaratory judgment and her action to quiet title. CR75-344; 368.

On August 19, 2013, this Court granted Crowell’s Motion for Summary Judgment as to Liability against several of the defendants in the lawsuit. CR345- 346. However, because Starbranch had not made an appearance in this lawsuit when the Motion for Summary Judgment as to Liability was filed and granted, the order granting partial summary judgment was not entered against Starbranch.

CR722-23. Starbranch has never been found liable for anything. CR1059-60 (App. 1).

On October 15, 2013, Crowell entered into a settlement agreement with the Association, Sarah Whiting, Ron Witte, Lawrence E. Plotsky, Rick Rambo, Frances Rambo, David D. Stock, Anna L. Stock, Wyman H. Herendeen, Mary Herendeen, Fereidoon Sharifi, Soody Sharifi, Edward G. Rizk, Billie Rizk, Benjamin Levit, Erica Levit, Walter J. Taylor, and Anita J. Taylor (the “Settling Defendants”) wherein the Settling Defendants agreed to “terminate the [Association] by filing a Certificate of Termination of a Domestic Nonprofit Corporation or Cooperative Association with the Secretary of State.” CR866-908 (App. 4). On November 20, 2013, the Settling Defendants filed the Certificate of Termination as to Jandor Gardens Association, Inc. with the Texas Secretary of State. 1st Supp. CR120-22 (App. 5). In the settlement agreement, Crowell and the Settling Defendants also agreed as follows: 4. Filing of Order.

The Parties acknowledge and agree that Crowell will file a certified copy of the Order signed October 8, 2013, which is attached as Exhibit C, in the real property records. The Parties acknowledge and agree that they have waived any right to appeal the Order.

5. Applicable Deed Restrictions.

All Parties hereto acknowledge that the 1929 deed restrictions of Jandor Gardens, recorded in Volume 811, Pages 285-286 of the Deed

Records of Harris County, Texas, remain in effect, and all Parties hereto agree to comply with the deed restrictions.

CR868 (App. 4).

On December 5, 2013, Crowell filed the trial court’s order, dated October 8, 2013, in the real property records for Harris County. CR790-94. Filing the trial court’s October 8, 2013, order in the real property records removed the cloud of title on the Property that had been created by the Association. CR368.3 F. The trial court grants Crowell’s Motion for Summary Judgment on Attorneys’ Fees against Starbranch.

On February 25, 2015, Crowell filed her Motion for Summary Judgment on Attorney’s Fees against Starbranch seeking $71,345.80 in attorneys’ fees, incurred by Crowell between February 28, 2013, and October 1, 2014. CR366-674. In that motion, Crowell claimed that she had obtained an August 19, 2013, summary judgment order on her action to quiet title and her claim for declaratory relief against Starbranch. CR368.4 Starbranch filed a motion for reconsideration of the summary judgment order, 5 arguing that the order could not have been against Starbranch because “[w]hen Crowell filed and served her Motion for Summary In her Motion for Summary Judgment on Attorneys’ Fees, Crowell admitted the following: in 2013, the trial court “granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby nullifying the actions of defendants’ bogus POA . . . .” CR368.

In her Motion for Summary Judgment on Attorneys’ Fees, Crowell made the following claim: “On August 19, 2013, [the trial court] granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby nullifying the actions of defendants’ bogus POA, and establishing the liability of the defendants in this case with respect to certain causes of action including Ms. Crowell’s action for declaratory judgment.” CR368.

CR675-708.

Judgment on Liability, this Court did not even have jurisdiction over Starbranch.”

CR677.

On March 10, 2015, the trial court entered an order ruling as follows: ORDERED that the August 19, 2013 Order Granting Motion for Summary Judgment did not apply to Starbranch since Starbranch was not a party at that time. The Motion for Reconsideration is MOOT.

ORDERED that the Court will consider Plaintiff’s Motion for Summary Judgment as to Liability (filed 6-24-13) and its application to Starbranch by submission on March 30, 2015, along with Plaintiff’s Motion for Summary Judgment on Attorneys’ Fees.

CR722-23.

Crowell’s Motion for Summary Judgment as to Liability, filed on June 14, 2013, sought the following five declarations concerning the respective rights and interests of Crowell and Starbranch: 1) the “Notice of Formation of Petition Committee” filed November 8, 2012 (Harris Co, Clerk File No. 20120521806) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; 2) the “Petition Approval” filed November 8, 2012 (Harris County Clerk File No. 20120521807) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; 3) the “Petition and First Amendment to Declaration for Jandor Gardens” filed November 8, 2012 (Harris County Clerk File No. 20120521808) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property;

4) the “Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens Association, Inc.” filed November 19, 2012 (Harris County Clerk File No. 201205436661) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; and 5) the “First Amendment to Declaration for Jandor Gardens” filed November 20, 2012 (Harris County Clerk File No. 20120540162) has no force and effect, is nullified, and is no longer a cloud on the title to, and right or ownership of, the Property.

CR88-89.

In other words, Crowell sought declarations to nullify the same five documents that she sought to nullify in her action to quiet title against Starbranch. Compare CR21 with CR88-89.

On March 23, 2015, Starbranch filed her Response to Crowell’s Motion for Summary Judgment as to Liability and Crowell’s Motion for Summary Judgment on Attorneys’ Fees. CR724-810. Starbranch filed the Affidavit of Nelson S.

Ebaugh and the Affidavit of Eileen K. Starbranch, M.D. in response to the attorneys’ fee affidavit submitted by Crowell. CR755-83. Mr. Ebaugh testified that “it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory judgment action against Starbranch.” CR771. In addition, Starbranch objected to Crowell’s failure to segregate nonrecoverable fees from recoverable fees and Crowell’s failure to segregate the fees owed by different parties. CR747-50.

On April 1, 2015, two days after the submission date for Crowell’s summary judgment motions, Crowell filed a “Motion to Consider the Supplement to the Affidavit of John B. Shely Filed in Connection with the Pending Motions on Summary Judgment as to Attorneys’ Fees” (hereinafter, the “Motion to Consider the Supplemental Affidavit”) that raised new and independent summary-judgment grounds. CR834-63; 1st Supp. CR3-6. The Supplement to the Affidavit of John B.

Shely identified $19,345.506 in attorneys’ fees that Crowell had not requested in her Motion for Summary Judgment on Attorneys’ Fees. Compare CR366-480 with CR836-63 and 1st Supp. CR3-6. Shely claimed that Crowell incurred $19,345.50 in attorneys’ fees between November 3, 2014, and March 28, 2015. CR836-63; 1st Supp. CR3-6.

In her Motion to Consider the Supplemental Affidavit, Crowell stated that she decided to submit the Supplement to the Affidavit of John B. Shely to the trial court because: [It] describes additional fees incurred by Ms. Crowell in connection with the pending motions on summary judgment as to attorneys’ fees and for work performed on other litigation activities related solely to Defendant Dr. Eileen K. Starbranch since November 1, 2014. These fees are not included in the pending filings.

Consideration of the Supplement will allow the Court to simultaneously evaluate the most recent attorneys’ fees incurred by

Calculated from the addition of the following amounts: $6,110.50 (November-December 2014), $5,848.00 (January-February 2015), and $7,387.00 (March 2015).

Ms. Crowell along with those previously submitted and will promote judicial efficiency in resolving matters currently before the Court.

CR834-35.

Crowell did not serve a notice identifying when the Motion to Consider the Supplemental Affidavit would be set for hearing or for submission.

On April 6, 2015, the trial court entered an interlocutory summary judgment order that neither granted nor denied Crowell’s Motion for Summary Judgment as to Liability against Starbranch. CR917 (App. 3). Instead of declaring the respective rights and interests of Crowell and Starbranch, the summary judgment order simply provided as follows: Plaintiff Elizabeth Howard Crowell is awarded judgment for attorneys’ fees in the amount of 26,462.00 [sic], from Defendant Eileen K. Starbranch. This amount reflects the unrebutted $19,245.50 set out in John Shely’s April 1, 2015 affidavit and $7,116.50 awarded from the amounts requested in Crowell’s February 25, 2015, motion.

To the extent the full amount requested by Plaintiff was not awarded, this Court is sustaining the objections raised by Starbranch.

CR917 (App. 3).

In other words, the trial court reduced the amount of attorneys’ fees initially requested on February 25, 2015, from $71,345.80 to $7,116.50. Compare CR371 with CR917 (App. 3). In addition, the trial court reduced the amount of attorneys’ fees requested on April 1, 2015, from $19,345.50 to $19,245.50. Compare CR836- and 1st Supp. CR3-6 with CR917 (App. 3).

G. The trial court grants Starbranch’s motion to dismiss Crowell’s action for declaratory judgment as moot.

On April 3, 2015, Starbranch filed a motion to dismiss Crowell’s claim for declaratory relief as moot because the Association was terminated in 2013 pursuant to a settlement agreement. 1st Supp. CR7-122. Crowell did not file a response to this motion. On April 22, 2015, the trial court entered an interlocutory order stating “that Plaintiff Elizabeth Howard Crowell’s action for declaratory judgment that she filed against Starbranch is dismissed because the claim is moot.” CR1040 (App. 2) (underline in original).

On April 24, 2015, Starbranch filed a motion to vacate any order or judgment previously issued and to dismiss the case for want of jurisdiction. 1st Supp. CR124-26. The trial court did not rule on this motion.

H. Order and Final Judgment leads to this appeal.

On April 16, 2015, Starbranch filed an amended motion for reconsideration objecting to the trial court’s consideration of Crowell’s late evidence filed after the submission date for Crowell’s summary judgment motions. CR981-1011. In her amended motion for reconsideration, Starbranch identified her objections to Crowell’s late evidence and presented affidavits controverting Crowell’s late evidence. CR981-1011.

In Crowell’s Response to Starbranch’s Post Judgment Motions, Crowell requested the denial of Starbranch’s amended motion for reconsideration and various other post-trial motions filed by Starbranch. CR1041-43. On April 28, 2015, the trial court granted Crowell’s request and entered an Order and Final Judgment denying Starbranch’s amended motion for reconsideration and awarded Crowell “attorneys’ fees in the amount of $26,462.00 from Defendant Eileen K.

Starbranch.” CR1059-60 (App. 1). In its Order and Final Judgment, the trial court held as follows: On April 6, 2015, the Court entered an order resolving Crowell’s claim for declaratory relief . . . (the “Summary Judgment Order”) . . . .

* * * On April 22, 2015, the Court entered an [o]rder . . . dismissing Crowell’s claim for declaratory relief as moot because it was resolved by the Summary Judgment Order.

CR1060 (App. 1).

The trial court never made any declaration of the respective rights and interests of Crowell and Starbranch. CR1059-60 (App. 1). Finally, the trial court made the following statement in its Order and Final Judgment: The Court has considered Starbranch’s objections and took them into account in carefully reviewing the subject attorneys’ fees. The Court eliminated requested fees that were not segregated or were related solely to parties other than Starbranch. Fees were awarded only for causes of action which support attorneys’ fees.

CR1059 (App. 1).

SUMMARY OF ARGUMENT Crowell misused the Declaratory Judgments Act by duplicating the relief she already sought in her action to quiet title in a claim for declaratory relief. Crowell violated the rule that a party cannot use the Declaratory Judgments Act as a vehicle to obtain otherwise impermissible attorneys’ fees. Consequently, the judgment must be reversed and a take-nothing judgment rendered. For several other independent reasons, the trial court erred or abused its discretion by awarding attorneys’ fees against Starbranch.

The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding. For instance, the trial court unilaterally reduced the amount of attorneys’ fees initially requested in Crowell’s motion for summary judgment on attorneys’ fees from $71,345.80 to $7,116.50. Accordingly, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings.

The trial court abused its discretion by awarding attorneys’ fees that were neither equitable nor just. The trial court awarded attorneys’ fees under the Declaratory Judgments Act before it even declared the representative rights and interests of Crowell and Starbranch. In addition, Starbranch was not even a proper party to Crowell’s declaratory judgment action. Finally, there is no evidence that

Starbranch prolonged the case or prevented a complete and final resolution to this case. For each of these independent reasons, the attorneys’ fee award should be reversed and a take nothing judgment rendered or, in the alternative, remanded to the trial court for further proceedings.

The trial court improperly issued a summary judgment even though the summary judgment evidence raised several genuine issues of material fact. The Ebaugh Affidavit and the Starbranch Affidavit each raised genuine issues of material fact. In addition, genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objections to Crowell’s failure to segregate her attorneys’ fees. Finally, Crowell’s own evidence established the existence of genuine issues of material fact. For each of these independent reasons, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings.

The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert.

Two days after the submission date on her Motion for Summary Judgment on Attorneys’ Fees, Crowell filed new evidence supporting a ground for summary judgment that had not been sought in Crowell’s initial summary judgment motion.

Because the motion was not supported by good cause and the new evidence unduly

prejudiced Starbranch, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings.

The trial court improperly awarded more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees. The new evidence submitted by Crowell two days after the submission date for the summary judgment motion entailed an independent ground for summary judgment that had not been sought in Crowell’s summary judgment motion. Accordingly, this Court should reverse and remand as to the attorneys’ fees which were never specifically requested in Crowell’s summary judgment motion.

ARGUMENT This Court reviews a grant of summary judgment under a de novo standard.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Questions of law are reviewed “without deference to a lower court’s conclusion.” State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). “When reviewing a summary judgment, [this Court] ‘must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.’” Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (italics in original).

For several independent reasons, the trial court erred by granting Crowell’s Motion for Summary Judgment on Attorneys’ Fees. First, the Declaratory

Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees. Second, the trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding. Third, the summary judgment evidence raised genuine issues of material fact. Fourth, the trial court granted Crowell more relief than was requested in her Motion for Summary Judgment on Attorneys’ Fees.

In addition, for at least a couple of independent reasons, the trial court abused its discretion by granting Crowell’s Motion for Summary Judgment on Attorneys’ Fees. First, the trial court abused its discretion by awarding attorneys’ fees against Starbranch under circumstances that were neither equitable nor just.

Second, the trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert.

A. The Declaratory Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees.

Crowell has misused the Declaratory Judgments Act. Crowell duplicated the relief she already sought in her action to quiet title via declaration. Thus, any award of attorneys’ fees for Crowell’s declaratory judgment action violates the rule that “a party cannot use the [Declaratory Judgments Act] as a vehicle to obtain otherwise impermissible attorney’s fees.” MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009).

As the Texas Supreme Court has explained, “[i]f repleading a claim as a declaratory judgment could justify a fee award, attorney’s fees would be available for all parties in all cases. That would repeal not only the American Rule [prohibiting fee awards unless specifically provided by contract or statute] but also the limits imposed on fee awards in other statutes.” Id. For these reasons, “[a] declaratory judgment action may not be used solely to obtain attorney’s fees that are not otherwise authorized by statute or to settle disputes already pending before a court.” Sw. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 956 (Tex. App.–Houston [1st Dist.] 1998, pet. denied).

The phrases “action to quiet title” and “suit to quiet title” are used interchangeably and refer to the same claim. E.g., U.S. Nat'l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *2-3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.). “[T]he term ‘suit to quiet title’ has been used broadly in reference to legal disputes regarding (1) title to, and possession of, real property—a trespass-to-try-title action, and (2) validity of other ‘clouds’ which indirectly have an adverse effect on an undisputed owner’s title to real property.” Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In other words, an action to quiet title and an action to

remove a cloud on title are one and the same. 7 “[A] suit . . . to remove encumbrances, or remove a cloud or quiet title may be maintained even though the adversary is not actually occupying or in possession of the land.” Texan Dev. Co. v. Hodges, 237 S.W.2d 436, 439 (Tex. Civ. App.—Amarillo 1951, no writ). In fact, an action to quiet title may be asserted, as done so by Crowell in this case, where any instrument 8 “would cast a cloud on the owner’s enjoyment of the property.” Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14–10–00090–CV, 2011 WL 1364070, at *3 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem. op.). Attorneys’ fees are not recoverable in an action to quiet title.

Sw. Guar. Trust Co., 981 S.W.2d at 957.

Here, an examination of the pleadings reveals that Crowell’s declaratory- judgment action duplicated her action to quiet title. Crowell sought a declaration that five documents filed in connection with the property owners’ association have “no force and effect,” are “nullified” and are “no longer a cloud on Ms. Crowell’s title to, and right of ownership of, the Property . . . .” CR19-20. In her action to quiet title, Crowell alleged as follows: Lonnie E. Griffith, Jr., J.D., 74 C.J.S. Quieting Title § 3 (April 2015) (Texas does “not observe the distinction between an action to quiet title and to remove a cloud on title, treating the actions as one and the same”).

Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if valid, would affect or impair the title of the owner of the property.” . . . “Any deed, contract, judgment or other instrument not void on its face that purports to convey an interest in or make any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner.”).

the [five] documents filed by Defendants in the real property records (see Harris County Clerk File Nos. 20120521806, 20120521807, 20120521808, 201205436661, and 2012054016216) are clouds or encumbrances on Ms. Crowell’s right of ownership of the Property, which affect or impair Ms. Crowell’s title to the Property. Ms. Crowell seeks to nullify the effect of these disputed filings and encumbrances. Ms. Crowell is entitled to a judgment that sets aside these improper filings and removes them as clouds on her title.

CR21.

In other words, Crowell sought the same relief in her claim for declaratory relief that she sought in her action to quiet title. CR19-21. Because Crowell’s claim for declaratory relief merely duplicated the issues set forth in her action to quiet title, Crowell is not entitled to attorney’s fees based on her claim for declaratory relief.

Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612, at *8 (Tex. App.— Houston [1st Dist.] Apr. 16, 2015, no pet.) (mem. op.) (collecting cases and affirming the trial court’s denial of Crowell’s claim for attorneys’ fees because the UDJA could not be used to recover attorney's fees for a suit brought to remove cloud from title); Sw. Guar. Trust Co., 981 S.W.2d at 956 (“Attorney’s fees are not available in a suit to quiet title or to remove cloud on title.”).

In addition, in her claim for declaratory relief, Crowell did not seek to construe any terms of the instruments filed by the Association. CR19-21.

Consequently, Crowell’s declaratory judgment action could offer her no more relief than her action to quiet title.

For these reasons, this Court should reverse the portion of the trial court's judgment awarding attorneys’ fees to Crowell and render judgment that Crowell take nothing on her requests for attorneys’ fees. Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S. W.3d 283, 296 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (“There is no basis for declaratory relief when a party is seeking in the same action a different, enforceable remedy, and a judicial declaration would add nothing to what would be implicit or express in a final judgment for the enforceable remedy.”); Sw. Guar. Trust, 981 S.W.2d at 956. (denying request for attorneys’ fees where the declaratory judgment action simply sought to nullify the clouds of title rather than to construe the terms of the challenged instruments).

Because Crowell only obtained attorneys’ fees from Starbranch, and Crowell cannot recover attorneys’ fees under her claim for declaratory relief as a matter of law, the judgment must be reversed and a take-nothing judgment rendered.

B. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding.

“Pursuant to Section 37.009, the judge is to determine whether an award of attorney’s fees is equitable and just; however, even when declaratory relief has been determined by summary judgment, the issue of whether attorney’s fees are reasonable and necessary is a question of fact for the jury to determine when the jury is the trier of fact.” Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559-

60 (Tex. App.—Eastland 2010, pet. denied) (citing City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000); Bocquet, 972 S.W.2d 19, 20–21 (Tex. 1998)).

On April 7, 2013, defendants Anita J. Taylor and Walter J. Taylor requested a jury trial in this case and the jury fee was paid. CR56-58; 1093. “A jury request by one party inures to the benefit of all other parties.” 9 Consequently, Starbranch always had a right to a jury trial in this case. Starbranch never waived her right to a jury trial in this case.

Here, Crowell submitted an affidavit stating that $71,354.80 was a reasonable amount for the legal services rendered as of February 24, 2015.

CR386-468. Starbranch submitted an opposing affidavit in which her attorney opined that “it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory judgment action against Starbranch.” CR771.

In its Order and Final Judgment, the trial court stated that it had partially granted Crowell’s Motion for Summary Judgment on Attorneys’ Fees on April 6, 2015, and further stated in relevant part as follows: Judge Adele Hedges & Daniel K. Hedges, Involuntary bench trial—No request for a jury trial—Request binding all parties, 2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) (“A jury request by one party inures to the benefit of all other parties. White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ). The inquiry is simply whether one party made a proper jury request, not which party made it. Almaguer v. Jenkins, 882 S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ) (jury request and fee payment inure to benefit all parties).”).

The Court eliminated requested fees that were not segregated or were related solely to parties other than Starbranch. Fees were awarded only for causes of action which support attorneys’ fees.

CR1059 (App. 1).

In other words, the trial court inappropriately engaged in fact finding when it decided a fact dispute about the amount of attorneys’ fees, if any. General Elec.

Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“Cases dealing with the fixing of attorneys' fees by the trial judge when acting as the trier of fact have no application to a summary judgment proceeding.”). In addition, the trial court inappropriately engaged in fact finding when it decided to award Crowell $19,245.50 of the $19,345.50 initially sought by Crowell in her Motion to Consider the Supplemental Affidavit.

Compare CR836-63 and 1st Supp. CR3-6 with CR917 (App. 3). In a declaratory judgment action, the jury, not the judge, decides the amount of attorneys’ fees.

Bocquet, 972 S.W.2d at 21.

Because the Order and Final Judgment specifies the grounds on which the court bases summary judgment, this Court should limit its review to those grounds.

Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 712-13 (Tex. App.—Corpus Christi 1998, pet. denied) (“Where the summary judgment order specifies the grounds on which it bases summary judgment, we limit our review to those grounds. The summary judgment will be affirmed on appeal if the specified grounds are

meritorious. Even if the motion contained other independent grounds on which summary judgment was sought, the grounds specified in the order are the only ones on which summary judgment may be affirmed.”) (citations omitted).

Significantly, “[a] trial court is . . . not permitted to take judicial notice of reasonable and necessary fees under the Declaratory Judgments Act.” Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015 WL 778487, at *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.) (“There is no presumption that a request for attorney’s fees under the Declaratory Judgments Act is reasonable.”). Again, only a jury, not the judge, could decide the amount of attorneys’ fees in this case.

In McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08- 00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (mem. op.), this Court held that the trial court’s reduction of the attorney’s fees awarded in a summary judgment proceeding “reflect[ed] that the trial court was duly concerned about the issue [of attorney’s fees], but the court was not authorized to make a fact finding at this stage.” Id. at *4. “[C]ontroverting evidence before the trial court bar[red] summary judgment on the Association's attorney’s fees claim.” Id. For these reasons, this Court reversed the trial court’s summary judgment on the attorney’s fee award and remanded the case for trial. Id.

As in McGlown, the trial court below was not authorized to engage in fact finding at the summary judgment stage.

The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method for summarily ending a case involving only a question of law and no genuine fact issues. See Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The trial court must determine whether fact issues exist, not weigh the evidence or its credibility and try the case on affidavits. Gulbenkian, S.W.2d at 931.

Thompson v. Community Health Inv. Corp., 892 S.W.2d 440, 441-42 (Tex. App.—Dallas 1995), rev'd on other grounds, 923 S.W.2d 569 (Tex. 1996).

For these reasons, the amount of Crowell’s reasonable attorneys’ fee is still a factual issue to be tried. Accordingly, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings.

C. The attorneys’ fees are neither equitable nor just.

In a declaratory judgment action, the trial “court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code § 37.009. Though a question of law, the determination of whether attorneys’ fees are equitable and just under the Texas Declaratory Judgment Act is reviewed for an abuse of discretion. Bocquet, 972 S.W.2d at 20-21. “[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In addition, “[i]t is an abuse of discretion for a trial court to rule . . . without

supporting evidence.” Bocquet, 972 S.W.2d at 21. “[I]n reviewing an attorney fee award under the [Declaratory Judgments] Act, the court of appeals must determine whether the trial court abused its discretion by awarding fees . . . when the award was inequitable or unjust.” Id. at 21; State & Cnty. Mut. Fire Ins. Co. ex rel. S.

United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404, 407 (Tex. App.—Fort Worth 2007, no pet.) (“A court of appeals will determine that the trial court abused its discretion in granting attorney’s fees in a declaratory judgment action if ‘the award was inequitable or unjust as a matter of law.’”).

For at least three independent reasons, the trial court abused its discretion by awarding fees that were not equitable and just. First, the trial court awarded attorneys’ fees before it even made any declarations between Crowell and Starbranch or determined that Starbranch had any liability at all. Second, Starbranch was not even a proper party to Crowell’s claim for declaratory relief.

Third, despite Crowell’s bald claim to the contrary, Starbranch did not prevent a complete and final resolution to this case.

1. The trial court awarded attorneys’ fees before it even declared the respective rights and interests of Crowell and Starbranch.

“Only after the trial court declares the parties’ rights under the Uniform Declaratory Judgments Act, [should the trial court address] whether the evidence is factually sufficient to support a finding that the fees are reasonable and necessary

and determine if the award is equitable and just.” VICC Homeowners’ Ass’n v. Los Campeones, Inc., 143 S.W.3d 832, 839-40 (Tex. App.—Corpus Christi 2004, no pet.) (Castillo, J., concurring). In support of this holding, Justice Castillo reasoned as follows: A claim for attorney fees under the Uniform Declaratory Judgments Act is not severable from the merits of the declaratory judgment action itself. See Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex. App.—Austin 2002, no pet.). “‘That a suit for the statutory attorney’s fees as a separate action could not be maintained is evident from the wording of the statute . . . . The attorney’s fees, while not costs, partake of the nature of the costs of suit and are assessed in accordance with the judgment’ reached in the proceeding.” Dalisa, Inc., 81 S.W.3d at 881 (quoting Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493, 501 (1958)). I conclude that the reasonableness, necessity, equitableness, and justness of an award of attorney fees in a declaratory judgment action necessarily are related to the trial court’s declaration of the rights of the parties. I would hold that an award of attorney fees in this case must abide the declaration itself.

Id. at 839.

Here, the trial court awarded attorneys’ fees before it even declared the respective rights and interests of Crowell and Starbranch. “The purpose of the [Declaratory Judgments] Act is to provide a procedural device whereby litigants can obtain a judicial determination of a controversy.” Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115, 117 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.) The Act is not a “vehicle to recover attorney’s fees.” City of Carrollton v. RIHR Inc., 308 S.W.3d 444, 454–55 (Tex. App.—Dallas 2010, pet.

denied). In fact, “fees are not permissible under § 37.009 where [the declaration is sought] solely for the purpose of obtaining attorney’s fees.” Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 69 (Tex. App.—Houston [14th Dist.] 2014, no pet. h.).

Because an attorneys’ fee award is merely ancillary to a declaration under the Act, and an attorney fee award is “not severable from the merits of the declaratory judgment action itself,” it is inequitable and unjust as a matter of law to award attorneys’ fees under the Act until a declaration of the rights of the parties has been made. Cf. Crown Asset Mgmt., LLC v. Short, No. 01-08-00042-CV, 2009 WL 1025729, at *4 (Tex. App.—Houston [1st Dist .] 2009, no pet.) (mem. op.) (“In the instant case, the trial court’s award of attorney's fees to Short for his declaratory judgment action was inequitable and unjust because . . . Short produced no evidence to support his claim for declaratory judgment.”). To hold otherwise would turn the American Rule, prohibiting fee awards unless specifically provided by contract or statute, on its head. It also would put the cart before the horse by allowing a party to recover attorneys’ fees without the court first determining liability.

For these reasons, the award of attorneys’ fees was neither equitable nor just and the trial court abused its discretion in making the award. Accordingly, the

attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings.

2. It is inequitable and unjust to award attorneys’ fees against a person who was not even a proper party to the declaratory judgment action.

Because Starbranch raised a fact issue on her defense that she has never been a proper party in this case, it was inequitable and unjust as a matter of law for the trial court to assess attorneys’ fees against Starbranch. If anything, the trial court should have awarded attorneys’ fees against Crowell for unnecessarily joining Starbranch as a party in this lawsuit, “causing her to incur fees that she otherwise would not have had to incur.” E.g. State and Cty. Mut. Fire Ins. Co., 228 S.W.3d at 411 (holing it was just and equitable to award attorneys’ fees to a party that was unnecessarily joined in a declaratory judgment action).

In her response to Crowell’s Motion for Summary Judgment on Liability, Starbranch asserted that she was not a proper party to Crowell’s declaratory judgment action. CR740-43. Significantly, Crowell’s evidence did not identify Starbranch as either an officer or a board member of the Association. CR 217-21.

Crowell’s evidence demonstrated that Starbranch was nothing more than a member of the Association. CR 181; 211; 260; 302. Consequently, Crowell’s own summary-judgment evidence raised a fact issue as to whether Starbranch was a proper party to the declaratory judgment action. Starbranch also produced

summary-judgment evidence that raised a fact issue as to whether she was a proper party to Plaintiff’s declaratory judgment action. CR755-62.

A property owners association, its officers, and board members are proper parties to a landowner’s claim for declaratory relief. Tex. Bus. Orgs. Code §§ 22.221 and 22.235. However, “[t]he members of a [nonprofit] corporation are not personally liable for a debt, liability, or obligation of the corporation.” Tex. Bus.

Orgs. Code § 22.152. To show that she was not a proper party, Starbranch explained in her response to Crowell’s summary judgment motions that she was nothing more than a member of the Association and that she had never asserted an interest in the Property. CR 740-743.

In sum, it is undisputed that the Association was a nonprofit corporation.

CR 100. It is undisputed that Starbranch was neither an officer nor a board member for the property owners’ association. CR 217-21. Starbranch testified that she had never asserted any interest in Crowell’s Property. CR 758. In fact, Starbranch disclaimed any and all interest in Crowell’s Property. CR 758. Under these facts, Section 22.152 shielded Starbranch from personal liability arising out of her participation as a member in the Association. Cf. Reiner v. Ehrlich, 66 A.3d 1132, 1143 (Md. Ct. Spec. App. 2013) (affirming dismissal of Plaintiff’s declaratory judgment action against individual homeowners due to homeowners’ immunity from liability under Md. Code Ann., Cts. & Jud. Proc. § 5-422); 65 AM.

JUR. 2d Quieting Title § 63 (Database updated May 2015) (“An action to quiet title lies against those who, at the time it is instituted, are the present claimants to the land under the instruments that creates the cloud.”).

In Reiner, a married couple sought declaratory relief not only against the homeowners association but also against sixteen individual homeowners in the community. Reiner , 66 A.3d. at 1134-35. The trial court dismissed the plaintiffs’ claim for declaratory relief against the individual homeowners because under Maryland law the homeowners were immune from liability as long as they were acting within the scope of their duties under the homeowners’ association. Id. at 1143. Under Texas law, Starbranch is similarly shielded from personal liability arising out of her participation as a member in the Association at issue in this case.

Tex. Bus. Orgs. Code § 22.152.

This conclusion is supported by Crowell’s decision to dismiss defendants that were similarly situated to Starbranch. Like Starbranch, the following defendants did nothing more that than approve instruments prepared by the petition committee or another representative of the Association: George L. Parker, Eva K.

Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell dismissed each of these defendants from the lawsuit, and none paid any attorneys’ fees. CR26-46; 59-61; 65-68; 72-74. When Crowell dismissed these defendants

before obtaining any judgment in the lawsuit, Crowell knew that they were not proper parties to a declaratory judgment action.

In addition, it is important to note that Starbranch did not even sign two of the instruments that Crowell sought to declare as void. It is undisputed that Starbranch did not sign the “Notice of Formation of Petition Committee” 10 or the “Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens Association, Inc.,”11 which are the subjects of the first and fourth declarations sought in Crowell’s Motion for Summary Judgment on Liability. CR20.

Consequently, even if she was not shielded from liability under the Texas Business Organizations Code, Starbranch could not have been a proper party to the first and fourth declarations sought against her. After all, there can be no controversy between Crowell and Starbranch in connection with documents that Starbranch did not even sign. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (“To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.”).

Viewed in the light most favorable to Starbranch, the evidence demonstrated that Starbranch was not a proper party to the declaratory judgment action or suit to quiet title. Cf. Kennesaw Life & Accident Ins. Co, 694 S.W.2d at 118 (holding that CR154-57.

CR100-04.

declaratory judgment was inappropriate against a party in an action to remove a cloud on plaintiff’s title to real property, even though the party may have played a role in creating the cloud, because the party had disclaimed any interest in the property and was not in possession of the property). Consequently, if a take- nothing judgment is not rendered, this Court should reverse the trial court's judgment awarding attorneys’ fees to Crowell and remand for trial.

3. There is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case.

The only evidence presented to the trial court regarding whether it was equitable or just to assess attorney’s fees against Starbranch was the conclusory and self-serving affidavit testimony of Crowell’s lead attorney, John B. Shely. CR 386-389.

Shely testified “[f]inal resolution of the suit . . . has been drawn out by the failure of Starbranch to file an answer for over fourteen months, despite being served with process, and by her failure to rescind her signature to various documents at issue in the case.” CR 389. Nowhere does Shely testify how or why final resolution of the suit depended upon Starbranch’s appearance in this lawsuit or rescission of her signatures. In fact, final resolution of the suit did not depend upon whether Starbranch appeared in this suit or rescinded her signatures; it depended on settlement with the proper parties to the case.

Before Starbranch even made an appearance in this suit, Crowell had already obtained all the relief that she sought through her suit to quiet title and her duplicative declaratory judgment action. CR345-46. In 2013, Crowell entered into a global settlement with the Association, its officers and directors. CR866-908 (App. 4). The global settlement agreement removed all clouds of title and terminated the Association. CR866-908 (App. 4). In other words, Crowell’s claim for declaratory relief was completely resolved in 2013 prior to Starbranch’s appearance. CR866-908 (App. 4); 1st Supp. CR 119-22; CR 790-94.

Moreover, as explained above, Starbranch has never been a proper party to this lawsuit. See Argument C(2). Consequently, despite Crowell’s claim to the contrary, Starbranch could not have prolonged the case or “prevent[ed] a complete and final resolution to this case.” CR371. For these reasons, Shely’s testimony is conclusory and therefore not competent summary judgment evidence. Texas Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding conclusory statements in support of a motion for summary judgment are “not competent summary judgment evidence”).

An affidavit is conclusory if it states a conclusion “without any explanation” or asks the fact-finder to “take my word for it.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d 380, 389 (Tex. 2008); see also BLACK’S LAW DICTIONARY 308 (9th ed. 2009) (defining “conclusory” as “[e]xpressing a

factual inference without stating the underlying facts on which the inference is based”).

A conclusory statement does not provide the underlying facts to support the conclusion. Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). A conclusory statement may set forth an unsupported legal conclusion or unsupported factual conclusion. S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 856 (Tex. App.–Dallas 2011, no pet.); Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 242 (Tex. App.— Waco 2003, no pet.). Conclusory affidavits are not sufficient to raise fact issues because they are not credible or susceptible to being readily controverted. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Objections that statements in an affidavit are conclusory assert defects of substance, which may be raised on appeal for the first time. S & Mgmt., Inc., 331 S.W.3d at 856; Rockwall Commons Assocs., Ltd., 331 S.W.3d at 507.

Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 670 (Tex. App.— Houston [14th Dist.] 2012, pet. denied).

Simply put, Crowell offered no competent evidence to establish it was equitable or just to assess attorneys’ fees against Starbranch.

Crowell offered no other grounds for supporting her claim that attorneys’ fees against Starbranch were just and equitable. Because there is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case, it was inequitable and unjust as a matter of law for the district court to assess attorneys’ fees against Starbranch. Bocquet, 972 S.W.2d at 21 (“It is an abuse of discretion for a trial court to rule . . . without supporting evidence.”); Crown Asset Mgmt., LLC, 2009 WL 1025729, at *4 (“In the instant case, the trial court’s award

of attorney’s fees to Short for his declaratory judgment action was inequitable and unjust because . . . Short produced no evidence to support his claim for declaratory judgment.”). Accordingly, the attorneys’ fee award should be reversed and a take nothing judgment rendered or, in the alternative, remanded to the trial court for further proceedings.

D. The summary judgment evidence raised genuine issues of material fact.

“The award of attorney’s fees in a summary judgment is improper unless the evidence of the reasonableness of those fees is uncontroverted.” Guity v. C.C.I.

Enter., Co., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

Because Starbranch introduced the affidavit of Nelson S. Ebaugh 12 and the affidavit of Eileen K. Starbranch 13 in response to Crowell’s motion for summary judgment on attorneys’ fees, Starbranch created genuine issues of fact regarding the reasonableness of the fees that precluded the granting of summary judgment under Tex. R. Civ. P. 166a(c). Jay Petroleum, L.L.C. v. EOG Res., Inc., 332 S.W.3d 534, 542-43 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding it was improper to award attorneys' fees in partial summary judgment because appellant raised a fact issue by submitting a controverting affidavit from its attorney); General Elec. Supply Co., 857 S.W.2d at 601 (“The only authority we find permitting the award of attorneys’ fees on a summary judgment does not apply CR 769-94 CR 755-62

unless the evidence of the reasonableness of those fees is uncontroverted; it does not apply when, as here, conflicting affidavits from opposing attorneys are presented.”) (collecting cases).

For several independent reasons, the summary judgment evidence raised genuine issues of material fact as to whether the attorneys’ fees were reasonable and necessary. First, the Affidavit of Nelson S. Ebaugh controverted Crowell’s summary judgment evidence. Second, the Affidavit of Eileen K. Starbranch controverted Crowell’s summary judgment evidence. Third, Crowell’s own evidence established the existence of genuine issues of material fact on her claim for attorneys’ fees.

1. The Affidavit of Nelson S. Ebaugh raised genuine issues of material fact.

“As a general rule, the party seeking to recover attorney’s fees carries the burden of proof.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). “Although courts should consider several factors when awarding attorney’s fees, a short hand version of these considerations is that the trial court may award those fees that are ‘reasonable and necessary’ for the prosecution of the suit.” Id. Whether an award of attorneys’ fees is reasonable and necessary is a fact question.

Bocquet, 972 S.W.2d at 21 (interpreting the Declaratory Judgments Act to allow a jury, not the trial court, to determine the amount of “reasonable and necessary” attorney’s fees).

In the Affidavit of John B. Shely, Shely testified that $71,354.80 was “a reasonable fee for the work which has been performed by Andrews Kurth in this matter as of the date of this affidavit . . . .” CR387. Starbranch controverted this opinion with the Affidavit of Nelson S. Ebaugh. Ebaugh testified as follows: [I]t is my opinion that the amount of $71,354.80 sought by Crowell against Starbranch is unreasonable because Crowell has only served one request for disclosure on Starbranch, has only served one request for production on Starbranch, has not taken any depositions in this case, and has not filed any discovery motions against Starbranch in this case. Under the circumstances, it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory judgment action against Starbranch.

CR 771.

Consequently, the Ebaugh Affidavit raised a genuine issue of material fact as to whether $71,354.80 was a reasonable and necessary fee for the prosecution of Crowell’s claim for declaratory relief against Starbranch. Engel v. Pettit, 713 S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) (holding that trial court erred in granting summary judgment because of fact issue raised by attorney’s fees affidavit of nonmovant). The remainder of Ebaugh’s affidavit created additional genuine issues of material fact. For instance, paragraphs four and five of the Ebaugh Affidavit also controverted Shely’s opinion that $71,354.80 was “a reasonable fee for the work which has been performed by Andrews Kurth in this matter as of the date of this affidavit . . . .” CR770-771; 387. Because the

evidence was sufficient to raise genuine issues of material fact, the trial court erred in granting summary judgment in favor of Crowell.

2. The Affidavit of Eileen K. Starbranch raised genuine issues of material fact.

In the Affidavit of John B. Shely, Shely testified as follows: Starbranch was served with the correspondence attached as Exhibit 4- E contemporaneously when the lawsuit was served on her. She did not respond to me regarding Exhibit 4-E nor did she rescind her signature to the documents in issue.

CR389.

In her affidavit, Starbranch contradicted this statement by testifying as follows: In his affidavit attached to Crowell’s Motion for Summary Judgment on Attorneys’ Fees as Exhibit 4, John B. Shely claims that, on July 1, 2013, I was served with a letter and its enclosure entitled ‘Rescission of Real Property Filings.’ However, I did not receive this letter inviting me to execute the ‘Rescission of Real Property Filings’ when Mr. Shely claimed it was served upon me. The first time that I saw the letter and its enclosure was as an attachment to Crowell’s Motion for Summary Judgment on Attorneys’ Fees as Exhibit 4-E.

CR758.

Consequently, the Starbranch Affidavit raised a genuine issue of material fact as to whether Starbranch had ever been served with Exhibit 4-E 14, a letter and its enclosure entitled ‘Rescission of Real Property Filings,’ before February 25, 2015.

Because the evidence was sufficient to raise a genuine issue of material fact, as to

CR 475-79.

whether Starbranch prolonged the litigation, the trial court erred in granting summary judgment in favor of Crowell.

3. Genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objection to Crowell’s failure to segregate.

“A party seeking to recover attorney’s fees has the burden to show that the fees were reasonable and necessary which, among other things, requires the party to show the fees were incurred on a claim that allows recovery of such fees.”

Goldman v. Olmstead, 414 S.W.3d 346, 367 (Tex. App.—Dallas 2013, pet. denied). The trial court sustained Starbranch’s objections to Crowell’s failure to segregate nonrecoverable fees from recoverable fees and Crowell’s failure to segregate the fees owed by different parties. CR 917. Consequently, as acknowledged by the trial court, there was a genuine issue of material fact as to how much of the attorneys’ fees, if any, incurred by Crowell should have been apportioned to her claim for declaratory relief against Starbranch.

“[T]he need to segregate attorney’s fees is a question of law, while the extent to which certain claims can or cannot be segregated is a mixed question of law and fact.” Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 312-13 (Tex. 2006)). Once the trial court has decided that attorneys’ fees need to be segregated, only under limited circumstances may the trial court

participate in the segregation of attorneys’ fees. Chapa, 212 S.W.3d at 341. For example, a court may decide as a matter of law whether overcoming an affirmative defense was necessary to prevail on a claim under which attorneys’ fees are recoverable. Id. However, “when . . . it cannot be denied that at least some of the attorney’s fees are attributable only to claims for which fees are not recoverable, segregation of fees ought to be required and the jury ought to decide the rest.” Id. Because some of the attorneys’ fees that Crowell sought were “attributable only to claims for which fees are not recoverable,” Starbranch was entitled to have a jury, not the trial court, segregate Crowell’s attorneys’ fees.

In sum, as acknowledged by the trial court, the summary judgment evidence raised a genuine issue of material fact as to whether the attorneys’ fees sought were appropriately segregated. Accordingly, the attorneys’ fees award should be reversed and remanded to the trial court for a jury, not the judge, to segregate the attorneys’ fees. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 523 (Tex. App.—Fort Worth 2009, no pet.) (“remand is required to calculate the segregated award”).

4. Crowell’s own evidence established the existence of genuine issues of material fact.

Crowell presented contradictory evidence as to the amount of reasonable and necessary attorneys’ fees incurred by her. First, Crowell introduced the Affidavit of John B. Shely wherein Shely testified as follows: In my opinion, a sum equal to $71,354.80 is a reasonable fee for the work which has been performed by Andrews Kurth in this matter as of the date of this affidavit [February 24, 2015].

CR387.

In other words, Shely claimed that $71,354.80 was a reasonable and necessary fee for representing Crowell from February 28, 2013, through February 24, 2015.

Then, Crowell introduced the Supplement to the Affidavit of John B. Shely wherein Shely claimed that reasonable and necessary attorneys’ fees incurred by Crowell from November 3, 2014, through March 28, 2015, amounted to $19,345.50. 1st Supp. CR3-6. These two affidavits were inconsistent with one another because they each identified a different amount for the allegedly reasonable and necessary attorneys’ fees incurred between November 3, 2014, and February 24, 2015. Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938, 941 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“The movant’s own evidence may establish the existence of a genuine issue of material fact . . . .”). Given the conflicting evidence presented by Crowell on the amount of her reasonable and

necessary attorney’s fees between November 3, 2014, and February 24, 2015, there are genuine issues of material fact as to the amount of her reasonable and necessary attorneys’ fees.

E. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert.

A trial court’s decision to allow evidence to be filed after the submission date on a motion for summary judgment and before summary judgment is rendered is reviewed for an abuse of discretion. Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied). Late-filed summary judgment evidence may be considered by the trial court only upon a showing of (1) good cause, and (2) no undue prejudice. Caldwell v. Carrollton Air Conditioning, Inc., No. 07-05-0241-CV, 2007 WL 2390425, at *6 (Tex. App.—Amarillo Aug.

22, 2007, pet. denied) (mem. op.) (citing Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005)); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (“Our rules . . . provide that a trial court may permit an act to be done after a period prescribed in other procedural rules upon a showing of ‘good cause.’ Tex. R. Civ. P. 5.”). “Good cause exists when a failure was the result of accident or mistake and not intentional or the result of conscious indifference.” Id. “Undue prejudice depends on whether allowing late submission will delay trial or significantly hamper the opposing party’s ability to prepare for it.” Id.

Two days after the submission date on her Motion for Summary Judgment on Attorneys’ Fees, Crowell filed new evidence, entitled the “Supplement to the Affidavit of John B. Shely.” 1st Supp. CR3-6. The Supplement to the Affidavit of John B. Shely identified $19,345.50 in additional attorneys’ fees that Crowell had not requested in her Motion for Summary Judgment on Attorneys’ Fees. Compare CR366-480 with CR836-63 and 1st Supp. CR3-6. Significantly, Crowell failed to demonstrate that her late filing of evidence was accidental instead of intentional or the result of conscious indifference. CR836-63; 1st Supp. CR3-6. In addition, Crowell failed to demonstrate that her late filing would not cause Starbranch undue prejudice. CR836-63; 1st Supp. CR3-6.

Without giving Starbranch an appropriate opportunity to object or otherwise respond, and less than a week after Crowell filed the new evidence, the trial court awarded $19,245.50 (of the $19,345.50 sought in Crowell’s Motion to Consider the Supplemental Affidavit). CR917 (App. 3).

Starbranch filed an amended motion for reconsideration objecting to the trial court’s consideration of the new evidence. CR 981-1011. In her amended motion for reconsideration, Starbranch identified her objections to Crowell’s new evidence and presented affidavits controverting Crowell’s new evidence. CR 981-1011. The trial court denied Starbranch’s motion for reconsideration. CR 1059-60 (App. 1).

Because summary judgment is a “harsh remedy,” the notice requirements of the rule must be “strictly construed.” Sams v. N.L. Indus., Inc., 735 S.W.2d 486, 487 (Tex. App.—Houston [1st Dist.] 1987, no writ). Starbranch should have been given notice of when the trial court would consider Crowell’s new evidence. Tex. R. Civ. P. 21 (b) (“An application to the court for an order and notice of any hearing thereon, not presented during a hearing or a trial, must be served upon all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court.”). However, Crowell did not provide Starbranch with notice of either a hearing or a submission date on Crowell’s Motion to Consider the Supplemental Affidavit. Consequently, Starbranch had no way of knowing how long she had to respond to Crowell’s new evidence. Under these circumstances, Starbranch was unduly prejudiced.

To give Starbranch a full opportunity to respond to Crowell’s new evidence, Starbranch should have been given notice of a hearing or submission date on Crowell’s Motion to Consider the Supplemental Affidavit and adequate time to respond to Crowell’s new evidence. Without notice of when Crowell’s new evidence would be considered by the trial court or an opportunity to object or otherwise respond to the new evidence, Starbranch was unduly prejudiced. Cf. Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996, no writ) (“[A]llowing arguments made in the movant’s reply to be considered, after

the fact, as independent grounds for summary judgment would subvert the orderly process contemplated by rule 166a and put the nonmovant to an unfair burden.”); Extended Services Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469, 470 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) (“To hold otherwise would permit the movant to take unfair advantage of the nonmovant by permitting the movant to serve his summary judgment evidence on the nonmovant on the seventh day before the hearing, thus requiring the nonmovant’s response to depend upon leave of the court. This would be untenable under our summary judgment practice.”).

For these reasons, the trial court abused its discretion by entering summary judgment based upon new evidence that was not supported by good cause and that unduly prejudiced Starbranch. Accordingly, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings.

F. The trial court granted more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees.

A “motion for summary judgment must itself state specific grounds on which judgment is sought.” McConnell v. Southside Independent School Dist., 858 S.W.2d 337, 339 (Tex. 1993). “The motion for summary judgment must stand or fall on the grounds it specifically and expressly sets forth.” Id. “[A] summary judgment cannot be sustained on a ground not specifically set forth in the motion.”

Id. “[A] literal reading of Rule 166a(c) and [other] authorities indicate that the motion itself must state the grounds.” Id. (bold in original).

In other words, a movant may not file supplemental evidence to amend her motion for summary judgment or to raise new and independent summary-judgment grounds. Cf. McConnell, 858 S.W.2d at 339 (“When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them and the responding party did not except to the motion.”); Highland Capital Management, L.P. v. Ryder Scott Co., 402 S.W.3d 719, 740 n.12 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“A movant is not entitled to use its reply to amend its motion for summary judgment or to raise new and independent summary-judgment grounds.”).

In her motion for summary judgment on attorneys’ fees, Crowell specifically sought $71,354.80 because, “[a]s outlined in Mr. Shely’s affidavit, $71,354.80 is a reasonable fee given the actions of Starbranch and other defendants after Ms. Crowell purchased property intended for her home and other development.” CR 370-71. This amount represented the fees allegedly incurred by Crowell between February 28, 2013, and October 1, 2014. CR 386-479. Crowell’s motion did not expressly seek the recovery of any other attorneys’ fees incurred by Crowell. CR 366-72.

Without demonstrating good cause,15 Crowell filed her Motion to Consider the Supplemental Affidavit after the submission date for the summary judgment motion. Compare CR836-63 and 1st Supp. CR3-6 with CR722-23. As expressly acknowledged by Crowell, she filed her Motion to Consider the Supplemental Affidavit to raise new and independent summary judgment grounds that she had not presented in her summary judgment motion. CR834-35. Crowell submitted the supplement to the affidavit of John B. Shely to the trial court because: [It] describes additional fees incurred by Ms. Crowell in connection with the pending motions on summary judgment as to attorneys’ fees and for work performed on other litigation activities related solely to Defendant Dr. Eileen K. Starbranch since November 1, 2014. These fees are not included in the pending filings.

Consideration of the Supplement will allow the Court to simultaneously evaluate the most recent attorneys’ fees incurred by Ms. Crowell along with those previously submitted and will promote judicial efficiency in resolving matters currently before the Court.

CR834-35 (bold and italics added for emphasis).

According to Crowell’s lead counsel, the attorneys’ fees incurred since November 1, 2014, totaled $19,345.50. 1st Supp. CR3-6. The trial court awarded most of these fees (i.e., $19,245.50) even though they entailed a new and independent ground for summary judgment that had not been sought in Crowell’s initial

Carpenter, 98 S.W.3d at 686 (“Our rules . . . provide that a trial court may permit an act to be done after a period prescribed in other procedural rules upon a showing of ‘good cause.’ Tex. R. Civ. P. 5.”).

summary judgment motion. Compare CR366-480 with CR836-63 and 1st Supp. CR3-6.

The trial court erred by awarding $19,245.50 which was never specifically requested in Crowell’s summary judgment motion. Tex. R. Civ. P. 166a(c); Hourani v. Katzen, 305 S.W.3d 239, 255 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A trial court errs in granting more relief than was requested” in the summary judgment motion); LaGoye v. Victoria Wood Condominium Ass'n, 112 S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“a trial court cannot grant more relief than was requested by a motion for summary judgment”).

“When, as here, a trial court grants more relief by summary judgment than requested, by disposing of issues never presented to it, the interests of judicial economy demand that [this Court] reverse and remand as to those issues, but address the merits of the properly presented claims.” Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Accordingly, this Court should reverse and remand as to $19,245.50 which was never specifically requested in Crowell’s summary judgment motion.

CONCLUSION AND PRAYER For the foregoing reasons, Starbranch respectfully requests that the Court reverse the district court’s judgment and render judgment that Crowell take nothing on her claim for attorneys’ fees under the Declaratory Judgments Act.

Alternatively, Starbranch requests that the Court modify the judgment to dismiss the claim for declaratory relief and remand for a new trial on attorneys’ fees. Starbranch also asks for all other relief to which she is entitled, including vacatur of the award of attorneys’ fees when the judgment to which it relates is either modified or set aside.

Respectfully submitted, NELSON S. EBAUGH, P.C.

/s/ Nelson S. Ebaugh Nelson S. Ebaugh Texas Bar No. 24007139 NELSON S. EBAUGH, P.C.

2777 Allen Parkway, Suite 1000 Houston, TX 77019 Ph (713) 752-0700 Fax (713) 739-0500 [email protected] COUNSEL FOR APPELLANT

CERTIFICATE OF COMPLIANCE Based on a word count run in Microsoft Word 2007, this brief contains 11,742 words, excluding the portions of the brief exempt from the word count under Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Nelson S. Ebaugh Nelson S. Ebaugh

CERTIFICATE OF SERVICE On September 11, 2015, I electronically filed this Brief for Appellant with the Clerk of Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to the following: John B. Shely Courtney B. Glaser ANDREWS KURTH, LLP Travis, Suite 4200 Houston, Texas 77002 [email protected] [email protected] /s/ Nelson S. Ebaugh Nelson S. Ebaugh

APPENDIX Tab Item 1. Order and Final Judgment, signed April 28, 2015 (CR1059-60) 2. Order on Defendant Starbranch’s Motion to Dismiss Action for Declaratory Judgment and Action to Quiet Title, signed April 22, 2015 (CR1040) 3. Order Granting Motion for Summary Judgment on Attorneys’ Fees, signed April 6, 2015 (CR917) 4. Settlement Agreement and Mutual Release, effective October 15, 2013 (CR866-908) 5. Certificate of Termination of a Domestic Nonprofit Corporation or Cooperative Association (Jandor Gardens Association, Inc.), filed on November 20, 2013 (1st Supp. CR120-22) 6. Tex. Bus. Orgs. Code § 22.152 7. Tex. Bus. Orgs. Code § 22.221 8. Tex. Bus. Orgs. Code § 22.235 9. Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet.)

10. McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08- 00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (mem. op.)

-t/'2312015 4;37:35 PM ctlrl$ Dilnlel - Dl~trlct Clcti( H~rrl5 County l!nvclopc No: 8013488 B).': TOLMAN, TAMMY E Ftled: 4123f2015 4::37:35 PM CAUSE NO. 2013·14192

e ELIZABIITH BOWARD CROWELL § IN THE DISTRICT COURT § vs. § § § /fHRt_ JANDOR GARDENS ASSOClA1'fON, IN<.:., § ' GRORGRL. PARKER, £ VA K. J•AltKER, § ( 7) SARAH WffiTING, RON WITTE, § LAWREI\CE E.. PLOTS KY, RICK RAMBO. § FRANCES RAMBO, DAVID D. STOCK, § ANNAL. STOCK, WYMAN H. HERE."'IDREN, § S5Tll JUDIClA.J. DiSTRICT MARY HERENDEEN, FEREIDOON § SHARIF[, SOODY SHARIFf, EDWARD G. § RTZK, BILLIE lUZK, BENJAMIN LEVIT, § ERICA LEVIT, GARRETS. ~1ADDERRA1 § GEORGE W. HAWJOlliS, EILE£N K. § STARURANCH, CA11JERINE A. MORGAN, § GEORGIA W. IDTCHCOCK, JAMF.S § CA:Rl''ER., WALTER J. TAYLOR, ANITAJ. § TAYLOR, AND ERIK 1\'IAZZIOTIA § BARIUS COUJ\'TY, TEXAS

On this day, 1tle Court has considered Defendant Eileen K. Starbranch's \'Starlmmch") (i) First Axnendcd .Motion for Rcconsiderntion of Order Gnmting Plt\intift's Motion for Sttmm:rry Judgment on Attomr:y$' Fee:,<~, (it) SupplemcmL tO Dllfendartt Stal'branch' s Moti'On to Dismiss Actioo for Declaratory Judgment and Action to Quiet Title, and (iii) Defendunt Staibranch's

1059 On April 6, 2015, the Court entered an order resolving Crowell' s claim for declaratory relief and awarding Crowell reasonable and necessary trial attorneys' fees in the amount of $26,462.00 (the "Summary Judgment Order'}.

On April 14, 2015, the Court entered an Order Approving Nonsuit Without Prejudice as to aU of Crowell's claims not addressed in the Summary Judgment Order.

On April 22, 2015, the Court entered an Order on Defendant Starbranch' s Motion to Dismiss Action for Declaratory Judgment and Action to Quiet Tftle, finding that Starbranch' s request for dismissal of Crowell's action to quiet title was rendered moot by Crowell's Notice of Nonsuit Without Prejudice, and dismissing Crowell's claim for declaratory relief as moot because it was resolved by the Summary Judgment Order.

It is therefore ORDERED that Starbranch's Post-Judgment Motions are DEN1ED.

It is further ORDERED that, for the reasons set forth in the Summary Judgment Order, Plaintiff Elizabeth Howard Crowell is awarded attorneys' fees in the amount of $26,462.00 from Defendant Eileen K. Starbrancb.

This is a Final Judgment.

SIGNED this 2 'irday of &-;!

HOU:3547662.t

1060 4/17/2015 2:18:31 PM Chris Daniel • District Clerk Harris County Envelope No: 4935907 By: FLORES, DANIEL Filed: 4117/2015 2:18:31 PM Cause No. 2013-14192 Elizabeth Howard Crowell, § In the District Court of § Plaintiff, § § v. § § Jandor Gardens Association, Inc,, George L , § Parker, Eva K. Parker, Sarah Whiting, Ron § Witte, Lawrence E. Plotsky, Rick Rambo, § Frances Rambo, David D. Stock, Anna L. § Harris County, Texas Stock, Wyman H. Herendeen, Mary § Herendeen, Fereidooo Shari£, Soody Sbarifi, § Edward G. Rizk, Billie Rizk, Benjalillil § Levit, Erica Levlt, Garret S. Madderra, § George W. Hawkins, Eileen K.. Starbranch, § JURY TRIAL DEMANDED Catherine A. Morgan, Georgia W. Hitchcock, § James Carper, Walter J. Taylor, Anita J. § Taylor, and Erik Mazziotta, § § Defendants. § 55°' Judicial District Order on Defendant Statbranch's Motion to Dismiss Action for Declaratory Judgment and Action to Quiet Title Pending before the Court is Defendant Starbranch·s Motion to Dismiss Action for Declaratory Judgment and Action to Quiet Title. The Co11I'1! has considered the motion and the response filed by Plaintiff Elizabeth Howard Crowell, if any, and finds tb11t Starbrancb's request for dismissal of Plaintiffs action to qwct tiUe was rendered moot by Plaintilf's Notice of Nonsuit without Prejudice filed on Aprll9, 201 ~ ; hC>wever, Starbranch' s request for dismissal of Plaintiff's claim for declaratory relief is well taken. Accordingly, it is hereby ORDERED that Plaintiff Elizabeth Howard Crowell's action for declaratory judgment that she filed against Starbranch is dismissed because the claim is moot.

0 2-z Signed on --~--"--'1--------'' 2015.

1040 CAUSE NO. 2013-14192 tl ELIZABETH HOWARD CROWELL § § IN THE DISTRICT COURT OF {1/A § § vs § HARRIS COUNTY, TEXAS § § JANDOR GARDENS ASSOCIATION, § et al. § § 55TB JUDICIAL DISTRICT ORDER GRANTING MOTION FOR S UMMARY JUDGMENT ON ATTORNEYS' FEES Upon consideration of Plaintiffs Motion for Summary Judgment on Attorneys' Fees, Defendant Starbranch's 1response and objections, Plaintiff's reply and supplement, t he Court finds that the Motion should be granted to the following extent: Plaintiff Elizabeth Howard Crowell is awarded judgment for attomeys' fees in the a mount of 26,462.00, from Defend:mt Eileen K. Starbrancb. This amount reflects the unrebutted $19,245.50 set out in John Shely's April 1, 2015, affidavit, and $7,116.50 awarded from the amounts requested in Plaintiffs February 25, 2015, motion. To the extent the full amount requested by Plaintiff was not awarded, the Court is sustaining the objectlons raised by Starbranch.

IT IS SO ORDERED.

SIGNED on the ~ day of A~ FILED Chris Daniel Dlstrlct Clerk APR 0 6 2015 nme~~--,~~~~---­ Hanlo County, Texa.

By-----~~-----­ Deputy SF.TfLJ:M f.ST A GR ~F.MENT AND ~flJTlJAt R F.L f.i\Sf.

Thi !' Se1tlemem Agreement and Mutual Relea~ (the "Ag.reemC7lt'") is bet\H!ffi: Elizah<lth Howard Crowd! ("Plaintiff-). on th~: one hand. and Jandor Garden.s Association. Inc.. Sarah Whiting;. Ron \,\'iuc, Lawrcnc.c E. PlotsJ..')', Rick Rambo, Frances Rambo. David D Stock, A ona L. Stock. Wyman H.. Hcr-cndoco. Mary Herendeen. Fercidooo Sharif1. Soody Sburiti. Edward G Rizk, Billie Ri.d:. Renjamin Levit, Erica Levit, Walter J. Taylor, atld Anita J. Taylor (" Defendants.. ). oo tht: oUll'f hand (Plaintiff and Dclcndants are coHI!lelivcly referred to as 1hc ··rani~~}. Thi!- Asreement shall be effecttve a$ of the d:ue s-et forth belo\v (the .. Effective Date").

Rt;C rrA I.S 1\ WI IEREAS. ~ertai n di sputes. claims.. and alle~ed cauSts of itCtiOtl h:w.: existt:xl by ;Jald between PlaintiiT attd Defendants, \vflich disputes. claim&.. and alleged causes of action ar<~ etut of. or are. 1d atcd to, teal JlMflerty loc3ted \~it h in tht: J3ndnr Garden,. subdivision. including disputes relating to the deed restrictions applicable to JandOf G:irdens. real propt!f"ty llliugs pemtinlng to ptoperty within Jandor Garde~~s.. a"d Defendants' efforts to form a propert¥ owners· as.'!ociation io Jandor Gardens.

U Wl!CRE.AS, a:; a result of such di sputes. c l<tim~. and alleged caus~ of itction. ce:ru1in litigation was. in~tiiUfoo by Pla.inti iT against Defendants in Cause No. 2013-1 41 92., styled F.li=ulx:th lfowurtl Cn11a·c:ll ''· ./(IJI(/or r.urd~ns A.v.Yot;iulu#t, ""··· ~I al.. in tht: 55th Judicial District Coull of Harris \ QUill)', rexall {the WLaWSIJit"). Reference is lterelJy anadt: to the pleadtng:s 011 tile in tbe l..<m-suit for a lnore tboroush de:s.criptioo of the diSJltltes, claims, and callses of action made the subject of this A:;reemem.

C WHf.RE.i\ S. Defc::ndan~ Rick Rambo and F~met:s Rillnbo filed oounterclaims asain~t Plaintiff in the La\~Sui t (the "Coumerclaim''). Re1~rence is ltereby made to the pleadings on tile in tbe Ulwsuit for a otorc thorough des-cription ot'the di.l>'J)Utes. claim~. and caw;es of action made the subject of thi s Agreement No ()(her Defendantslw!sides Rick Rambo ;mel Frctne<:s Rambo filed any <:I aims or all ~ed cctusc.s of<lctioo <~g~tlnst Plaintiff 0 WHEREAS, Defendants' Counterclaim included an applicaliort for injunctive relief, whieb the Coun denied. and wbkh is. th~ $\Jbject of an interlocutory appeal. Citus.e No. 01-13-00862-CV, style(l /?!ck Rmttho and Fraltct·~ Rambo 1'. J~!J:obelh HCIIt•a.rd Crowell, in th~ First Distria Court of Appeals. Hou~>1on. Te;(as (U)c - Appenn. The L1w1mit. the Cet•nterc.taim. :uld the Appeal may be coTi ectively referred to as the ''Liti ~'ltion.~ E. WllER.t:AS. tbt: Court grumed Plai.ntifrs M.o1ion for Summary Judgment and in tlmt ~rd signed Orders Or\ Augu-st 19, 20'13, and Or\ Oe1<lber 8, 20 13, declarius thattlte 1eal property filings lit issue m the Lttigution have no force and effect. arc nullified. and arc oo lonser a cloud on 1he title to, an<l •isht of ownetship ('}f, the pt'O{)ert)· at issue Reference is hereby made to the AU,guSt 1<>. 2013 and OctoberS. 20IJ Ordtrs for a. more thoroush deS(;ription of the 1eal ptQJ)erty filing.s at issue ial the L.itisalion

Plaintiff002761 F. WHEREAS, Defendants deny ar1y liability to PlaintitT for a.ny disputes, claims, or alleged causes ofactiou made the basis of the Litig.1tion.

G. WHEREAS, Plaintilf dMies any liability to Defendants for any disputes, claims, or nllcgcd c.aus<!s of action made tltc basis of the Litigation.

H. WHERF..AS, the Panies desire to forever settle any and all matters in comrove~ between them that arise from or relate to the Litigation ns of the Eff(:ctivc Date.

NOW, TUER.EFORE, for :wei in consideration of the afotes3icl premises, m u tt~al covenants, agreements. acknowledgments, conditions and representations set forth herein :lrltl for other good and valuable consideration the receipt and sufticiency of which is hereby acknowledged, the Parties do hereby agree as follows: AGREE.MENT I. Setde1neJJt Pay ment I Oosing.

Defendants will pay Plaimifr the amoum of Two Hundred Thousand Dollars and NO/I 00 ($200.000.00) by cashier's check mHdt: payable to Eli~abeth l.lowurd Crowell (l h~ "Settlement Payment.,). On or before November 14, 2013, Defendants ~hall delivelf lhe Settlement Payment to Daryl Bristow. Also on or before Novembt!t 14. 2013, Plaintiff shall submit thi~ Agreement as well as final copies of all documents attached hereto to DiLI)'I Uri ~aow 1\11 Parties sl1all execute this Agreement on or before November !4. 2013 2. Di~mi~aJ of Litigation.

Within dgllt ($} days after tl1e receipt :uld clearing of the check rcpres~ntins tJr.: Settlement Payment and full e.xeclllion of this Agreement, and in, no evem later than ovember 22. 2013. the Parties shall direct tbeir attomeys to tl le. <trtd tlteir attorneys 11hall file, an Agreed Motion 10 Dismiss with Prejudice seeking the entry by the C:o1.111 of an Order disrnissi11g with prejud1ce aU claims and causes of <lc:tion asserted in U1e Lawsuit, includi ng the Counterclaim , such Agreed Motion and Order 10 be in the fonn <ltt<lched hereto as E.'(hibir A aud incorporated bereill by reference.

On or before November 22, 20 13, Defendants Rick and Frances Rambo will di smi~~ the Appeal w1th prejudice.

3. Term i.nalion of Assoc.ilHion.

The Dcfendll!lts will tci1Tiinate the Jandor Gardens Msociation (the .. Associatio11") by fllins a Certific~ t e of Tem1ination of a Domestic Nonpr'ofit Corpor11tion or Cooperative Association with the Sccrctmy of State in the fom1 atlt~chcd m; exhibit B. All fees and/or costs associated with tem1ir1a1ing the Ass-oeia1 i1~r1 shall be borne by the Association or the Dd'endants

Plaintiff002762 4. Filing orOrdel'.

The P<Jrtics acknowledge and agree that Plaintiff will me a certified copy of the Order signed October 8, 2013, which i!l attached as F..vhlhll C, in the real property re.cords. The P~trtics acknowledge and agree that they bavc waived nny right to appt-'9.1 the Order. ). Applicable Deed Resc.·ktlons.

All P<trtics ht."rCtO acknowicdgc that the J()29 deed rcstncuons or Jandor Gardoos. recorded in Volume 8 ~ I , Pa~es 285-286 of the Deed Recor-ds of TT:~rris Coun ty. Texas, remain in effect, and all Parties hereto agree to comply with the deed restrictions.

6. Ad ditional Terms .

a. Piaintiffwil l instnJct her builder to make reasonable efforts to address the privacy conoerns of Defendants Anna Stock and David Stock regard[ng thei r downstairs bathroom window.

b PT.:Jintiff has l'l:p r\!.sen t ~d that landscaping has been provided for in thc budget for her intended development of tlH~ property a11d agrees to landscape the property within that bodset aJl<l in an appropri ate manner· for the S\rbd~vision .

c. Plaintiff agrees to instruct her builder not to aim any ~terior lighting directly at the hornes of Defendants David Stock and Anntr Stock or Wyman ller\ttdt:~Jl and Mary Herendeen and agrees not to aim any exterior lighting directly at the l1ome of Rick Rambo and Franees Rambo.

d. Defendants David Stock and Anna Stock, Wyman Herendeen and Mary llerendeeo. and Rick Rambo and Frances Rambo agree 110 1 to <lim any t:<Xtt:rior lighting directly :u any of lhe houses located at 5324 Jnstitote Lane, 5326-A lnstittJte Lane. or 5326-B lnstitute Lane.

e Plainti!T agrees to complete the construction of the three single-fami!,y residemial houses located at 5324 Institute Lane, 5326-A Institute Lane.. and 5326-ll ln:stitutc Lilne in a manner that is re:l$onably equivalent to the house~ reflected in, Exflflm D.

The Parties acknowledge that the terms set forth $1 subsections (a) through {e) above are personal covenants and e.xpressly ttgJ';(! that none of the terms :set forth .;t subsections (a) through (e) shall be deemed covenan ts running with the l and, nor shall they bir1d any future purchlllSers or owners of any property.

7 No Admi~~ion of Liahi.litv l'his A&rrecmcnt is a compromise of disputed mutters to avoid the furtl)cr expense and inoonveni er1ce of litigat-ion, and shal l M t be oonstf\Hl.d as an admission ()f liabi li ty ()r wrongdoing by any Party hereto which liability or 'vrongdoing all Partie.-; Cl<prcssly deny.

Plaintiff002763 &. Rele.u e hv PlaintiiT.

rn consideration of the mutual promises., considcratioo. and covenants described herein.

Plaintiff ltereb}' rele?a~s. acquits, and forEwer di~haJges Defendants and their insurer(s) from and against any nnd nll disputes. claims. dt.'tllnnds., causes ot' action. debts.. liabilities, obligations. judgments, or $uils in equity, tort <Jr contract., of whatsoever nature m common law, statutory or othervvisc. or any other legal d"-'Of)'. arising out of or rdatcd to the circwnstances that fom1 the basis of the Li tigation, known or unkn(YMI, now existing or that might arise hereafter. including all claims or causes of action tbm were assetted or could have beel"' assened i t~ the Litigation 9. Rdt :ue bv Defendants.

11"1 consideraliOlt of tlte l"'lulual promises, considerali011, and oovenauts described herein, Defendants het'eby release, acquit. and fOfC\' C3' discllarge Plaintiff from and against any and all di 1)\rtel... elairi"'S. demands. caustz of ;lctioo. debts. liabilities. oulisatioos, judgment~, or suit!l in equity, ton or contract. of whatsoever nature .at common law, statuto!)· or olft.;!r"" ise. or any othe-r legal lh.;!ory. arisittg O\tt of or ret:ned to tho;! circumstance~ that form the basi~ of the Litigation, known or unkmJwn, now existing or that migHt arise herc!l!ftet, in<.-1uding all claims or C<'tuses of a~tion that wen~ asst:rted or could l1ave beerl asserted in the Litigation. l 0. AddiJiqmll Arkul)wJ£(1gs:uu; n!s, In consideratjon of !he murual promises. consideration. and covenants described herein, and in addition to the: n:lcasc set forth m paragraph() above. Dcfendnnts Rick l.{ambo and Frances Rambo hereby acknowledge and agree tl1at Plainti iT is released from any alleged cunlt<lct wtittc11 Of urul , or <1ny ·utiJcr tlJcory or <llh:gcJ 01USC uf aclimL rd<1ling \u Ibe Jandor ('.ourt Replat No. 1 and EX1ension, dated January 2010 In consid~r<ltion of the mutual promises, c.on:sideration <md CC»·enants described herein. and in addition tO the release set forth ir~ paragraph 8 above, Plaintiff hereby <~cknowled~~.s and agrees that l)cfelldants Rick Rambo ;,md Fnwces Rarnbo are released fi'<)nl any allesed oontrnct, written or oral, or any other theory or alleged cause of actjon, relating to the J;rndor Coort R~ lat No 1 and Extension, dated J;rnuary 2010.

l'bt: Parties n:spoctivcly rc:present and wamtm tbut th(! Purties own and hold the claims relea!!ed in this Agreement. and that they l'lre fully a~Jthori%ed and .emrlowered .to fully relCiliie and 1.\Xtinguish all of the claims <1nd rights releal!ed hcn.-in 12. AuthoriLy nnd Auorov;d~

Eacb of tile sil:-'llatori cs reprcsCJlls and warrants that he or she has read und fi1lly underst:~nds this A::;.reernent. is duly aothori~ed to fully <~nd comJ)lelety r~olve all disputes betw<:cn the Parties tlmt arc tbc subject of this Agr<:emcnt, to mnke this

Plaintiff002764 Ag_reemem, and to bind to the terms and conditions contained in this Agreement the (.'tltity or person on whose belt<tlf h<: or sbe purports to act in the capacity identified below. Each of the signatories further repre.~ents and warrants that all corporate or othev npprov<tls necessary to ent~r into this Agrt'Crncnt have bc~n obtain~d .

13. Gi)venting L:lw.

The validity. construction. interpretation. and adminisrration of this Agreement shall, to the extent the particular l!Ubject matter is controlled by state law, be con~nred, controlled. and govemed by the substantive laws of the State of Texas, without regard to the c¢t~Oit:ts of l~w principles thereof.

14. D is put~ Resolution.

If a dis,nue s}!()(rl cl;~rise rel.,tint; in any "11)' to thi A~eem~nt, the Parties asree promptly to atlempt to resclve same by phone conference \\ith Daryl Bristow. If the PaniCS" cannot re:K)lve their diOer~Tl<ies by said pl1one eonfelet~ce.. thet1 the dispult: will be resolved by Davy! Bristow in binding ad hoc arbitration pursuant to the Commercial Rules of the Americar1 Arbitration Aswciation (AAA Rules) If Mr. Ori tow ig unwillin~ or unable to ~tve as an arbitrator, then the Panies will submit to arbirration by a ~ingle arbitrator in l fouston. Texas, und~r the AAA Rules. To the extent 11ny di!;putt i~ submittt:d to binding arbitration. the pre\'ailin_g party s.hall be entitled to all rea~nable.anomey.s· fees and co~ts incun'eclln cooneclion \\;{n tbe di spute l S. Constntdi()ll, The l'artics ~n::scnt and ~nx that tht: lanKuage used in thi~ Agnxment is the ~suit of arm~-lcngrh ba~nins bemoccn sophisticated partie$, that the Panics c.hooe the langllagc herein to· e.-.;press tl1eir mutual iJ1tcnt. and that u<.1 rurl! of stric~ construction shalJ be applied against any Pany . The Panie$ further repre11ent ancl agree that they have thoughtfully and voluntarily n¢gotiated the tc:m1s of this Agreement with equal input from eacT1 Pany, and th at this Asreemen r shall not be construed agl\ins! any Pany for the benefit of any other Party bilsed on <In assertion of :superior bitrgaining po""~r. adhesiou. du~ ()1 any ~imilar 1hoory 16. ,Rtn resrntatio~~:s Regarding Nc:goJin!ing th.c M.1·ecnum1.

The Pan.ies exp~ly acl:ttO\\ledse Md represem hereio that they have carefully rcvicwt!d tllis Agreement. tltat they underswnd its temlS and effect, thal they have h<td the OJ)I)onunity to seek legal acl\lice and were reJ)fe~ented by e.-:perie11ced counsel with respect to tJUs Agreement. lllld that they have rcociv~d ind~pend~nt lcgaJ advice., have conducted such inveStigation as each of 1hem and 1heir cou11seJ thought app!OJ)riate, and bn"e relied wholly upon their own judgment and knowledge and they have not been influenced w arty extent whatsoever in making this Agreemem by any represent;Jtion or statements made by any otbco Party or anyone acting on behalf' of any other Party.

Plaintiff002765 17. Consider ation.

The Parties represent and U:g.T<!C that tbc consideration stated hcrcin is contractual and not a mere recital IS. lntegr:aJi:On I EntiJ·e AgrccmcJtt.

This Agreement constituter< the complete, final , integrated agreement between the Parties with regard to the settlement or their di spute and the matters released herein. and supersedes and canoels all prior Or contemporaneous nesotiatic;ms, drafts., offers, COllnter- offers, agreements, understandings., discussions, or representations, written or oral, regarding the subje\..'t matter hereof, including the CoMidentia1 Mediation Settlement Agreemem.

19. Attor nevs' Fees and Expenses.

T he Parties acknowledge and agree that, exoept as provided in thi s Agreement, each of rhem shall bear rhei r own costs, expenses and taxes and attorneys' fees arising our of the Litigation and the negotiation, d!afljng and execution of this Agreement. :w. Counterparts, Transmission bv Etnail or Fax.

Thi s Aye.ement may be executed in counterpa..ns. l f any signatory to this agreement el oct~ to provide his/her sigr\tlture l>y em;)il or fax. M email or f;r\: transmission showing that the signatory l1as signed this Agreernem shall be the cqtJivaJent of an original $i~n"-tu re for al1 purposes 21. Notices.

1\ll notices that any Patty to this 1\ Sfccmem may be required or may wish to give in connection, wi th this Agreement shall, be addressed to counsel: of record at the addresses set fortb below (or at other sucJ1<lddresses <tS rn~\y be designat~ by writteJJ notices gtveJl in the manner designated herein) Such notice or notices shall be given by personal delivery, by ernaH. or by depositing such notices. Vl<\ c~tified US. Mail. Return Rece1pt Requested, and, if so mailed, shall be deemed and presumed to have been given on the third bu:siness day following the date of rnaili•~g. The addresses of the Parties uutil furtb~r notice arE): a Plaintitl' Elizab~th llownrd Crowell. c/o John U. Shely, Andr~ Kurth LLP, 600 Travis, Suite 4200, Houston. Texas 17002.,Jshd yra_rotdrcwskurth.com b. DefendwtllS Jandor OnrdcllS Association. lnc.. S<rrah Whiting. Ron Witt~.

Lawrence E Plotsky, Rick Rarnbo. Frances Rambo, David 1), Stoc'l.:, Anna I, Stock, Wymun IJ. llen:ndi}Cn, Mary Herendeen. Fereidoo11 Shunfi, Soody Shurifi, Edwatd G Ri~k. Oill ie Ri%k, Benjamin tevit, F.rica l.ev-it. Waltel' J Taylor, artd/or Anita J. Taylor, c/o Eric Li pper. Hirsch & Wcst.hcimcr, J> C. 1415 Couisiana. 3CJII:i Floor, Houston, T~xa.s 77002, .e/ippt>r '§lm·svhwest.com.

Plaintiff002766 IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below.

EFFECTIVE DATE: October 15, 2013

[end of page]

Plaintiff002767 IMPORTANT: READ TlilS AGREEMENT ANU CONSULT WJ'I'H YOUR l..A'-VVF.R JJI!.:fORE SlGNlNG!

THE STATE O.F TEXAS COUNTY OF HARRIS

OE.FORE ME, the undetsij!;lled authority, onlhi~ day personally appeared ELT7..ABETH HOWARD C)t0\"'ELL, known to me to be tl~e person wl1ose nam" is subscribed to the fnrcgoing instrumem und acknowledged to me that she execute-d the same for the purpose& ruld eom•idt•ration thet-ein exptt:sllt:d, aod in the capaeity tl)etein stated, and as h~r act and deed.

d.:!.

GIVF.N \JNDF.R MY HAND AND SF..AL Of OFFlCH lbis __L_~.~ day of __jl~.tt--···---' W 13.

___.._______ -- _,. ,.......,_.,_ ...__ .. __ ........____ ______ ...,...__ _ ... ___ ........""""'"'_______ ,_______,,,..... _...,..,...,..._,_ ..._._____ . . . .............. ...._.. ................,. ~ _ . _ - · - · " · " · " " ' ~ - ~ - Plaintiff002768 IMPORTANT ~ REAl} TJJIS AGRJ:o:f:MENT AN:O CONSULT Wfl'fl YOUlt u \.WYF.R RK"Ii'ORE SlGNlNG!

JANDOR G.ARDE'NS ASSOCfATlON, INC f?.·ic..k @etM-ko ___ _ l itle: ~----'- 'bir-<,.h-r Signature: TtH~ STATG Of 'l CX/\S C'OUNTI' OF HARRIS

_ _,,_R BEFORE _. 1'ck_ Me, 1hc f-1!.,,....,.1~ GARDE:"'S ASSOCIATlON. l!';C., knc.mn undersig~K't!

t.~ . tll _ authority. on 1his day p.:f"\nnall~ ~.( r-tu:f·~r- _____ ,__ _ .lpt~arcd ol .lA 'WOR me to he: the pet!{llll \.\h<JSe nam" '' suh~crilx-d tn

and c.msidertHion 1herein expressed. and in the c~pnciry tht.>rdu s~.ated. tul•.l ~s lw; I·:! I acr .mel deed.

(i!VE>J UNDER MY rl!\NO AND SEAl . or OffiCI" ~hi~ --~ ~ ---~4!1<!'~,;1. / , 2U I J.

-~~/.~~4~~ Notary Public 1)1 allU 11ol' 'fbe Stale of J exa-;

. - ---------------...... ··---·"'' ,,_,__ ........-.. , - Plaintiff002769 t·MI>ORTANT: IUt~l) nns AG~t<: I~Mfi~NT AND CONSU L T W ITH 'YOUR L AWYER JJ'FJ'OR F. SfGN!NG!

THE STATE OF TEXAS COUNTY ()F I fAlUUS

HFFORE ME, the undersig.oed authority, nn th1s day per~onally appe<J.rod SARAil

cxprc-:>sed. and.in the capacity therein $rated, and. m; her act and deed.

Gi VEN UNDER M'\' BAND AND SEAL OI·~ OJ'FlCF !his /t;> ----'-- day of ___ f.'!_ <l if_t!M h !-:tt ................ 2013 .

........................................................................... ·---- ---·--------~-------- ------·-----~-----~--- -------------------··-·-- ·· -- -- -·-- --- Plai ntiff002770 IMPORTANT: READ THIS '\ GREE:\1E~T AND CONSUl~T WITH YOl n LA\VYER BEI~ORE SJGNING!

Hy: THF RTA TB Of tEXAS § ~ ( ·ou;--n Y OF HARRIS §

BeFORE fvfE_ the unctersignc:d authority. on this day personaII.' appcar.:=d RO~ WITTE. k.uo-.\ n tt) me to he the person wltt~M." ~r<UTJe [-.; subscribed to the foregoing in'>tn.unent :1.nd

GIVEN UNOF.R MY HA"ff) ANTI SEAL OF Off iCE this ____ [4 '2,_ day of 1\ I() 'v-r; Yn ~~ ')Q I 3 _;_ I "_' - - - - - ------"' .. .

U:~~J -df!-~:6 .

N()iary Puhlic In u.nd Por The Stat~ of Texas

!J

- ·-· · -- - --~,-- · - ...... . ..... ..... .................... •• _ . . - - - - ... --·-·--·""'·~""'"..- · ··- ··· - · .............. ..... . . - . . ...... ....... ...... .. ..... . ....... ...... . . . ..... ... .. \ .''1'\\......\ .

Plaintiff002771 IMPORTANT: READ 1'HIS AGREEMENT ANll CON'SlJLT WITH YOUR Lt.\WY:ER BEFOJU!: SIGNING! _, .JP bJ-1£) By: ;~~VI IJ::'IJ(l~VJC tf6<wRENCE E. PLOTSKY / THE STATE OF TEXAS § § COUNTY OF HARRIS §

BEFORE ME. the undersigned authority, on this day personally appeared LAWRENCE E. PLO'l'SKY. know.n E(l me to be the person whose name is subscribed to the foregoing instrwnent and acknowledged to me tb<rt he e:t~\lted the same fur the purpo~~ and oonsirler11tiou therein el!.pre!>~ed, alld io tlte capacity lh~rein stated, arJ.d as his aot ond deed.

r GtVEN tiNDER MY HAND AND SEAL OF OFFICE this /'J b day of /}/17/C)I.. /::uvL ~-------·- 2013. __/::~~i&::;__)- / )

Notury .Public In ilnd For The State ofTe.x.as

- - - - · -·-•-•··•·"''''''' ...,,,,.,,,.,, .. ,,,,,,.,.,u,_ __...,.. ..... .,...,..,,~,,,,,,,,,,.,,,,,,,,,.,,,, ...,,.,.,,.... -----~~~-.....--- _ ...... ............-...---....-....-..... -.----- Plaintiff002772 IMPORTANT: Rt-:AO TlJIS AG REEMENT ANO CO~Sti LT WITH \'OCR J_\\VYER RF..FORF.. SlGNlNG!

rHE STI\Tf: OF TEXAS § COUNn· OF HA RR,lS *§ BEFORE ME. the undcr~ignl!d au:thonty, on !.his da) per:-N)ally ~[ip~at ~d RICh.

RAMBO. known to me to b.! the persuu whose name is subscribed to the f,)r-~going instrument aml. ad.-ntwtleJ gt.-d tn me that l1e exe..:uted thc. same for tht~ purposes and constde.mtiou therein tlXpressed. and in ·the capacity therein stated, and as h is <~t1' a nd deed

G£VE~ UNDFR iVJY HAND AND SEA L OF OtFilT this .-...../.~- tky ,,r '/fl~4-~J .:w11.

- - -- ----------·--··------------. ____................-......_.._. __ ____ .

Plaintiff002773 THE STATE OF ·r LXAS § :;. ~ COUNTY OF I·IA'RR IS §

expressed . and in tile eupacily thertrin ~lal~d, m:ul m> her act and deed.

GIVE"l U:-JDER MY HAND AND Sl!J\.L OF OHlCE thii' ..ffi·t¥1-'?>l-~-· 2013. /J P;/.:? ./'A·-.... t'~f.~ ?.:.!::::. .:f:::.~-!'..!!:"ii.?.

Notary Pt•blk !n ::1nd F01' he Stale of Texas

l4

="'~-----·· --·----·--...------•··-••. ' '"'.. "''''''''''v•••••••• ••-....... •• _ _ _ _ _ _ _......,_,..,....,,..,....,,,,,,,.,, .. ,..,,_ ,,,.,,,,,,, ........- - -· · • Plaintiff002774 J liE S'l ATf Of~TEX.~S 'COtlNlY 01· l-1 :\RRJ~

STOCK. knowl'l lj) me I:!J be Ole p~rson whqse Hl).IHC is subscrib<.<-d l(J ihe ro.r~~goin8 inslmm<.illt ~nd ackm~wlc-dged 1t1 me ihat he executed tbe same for 11-~£ purposes and t~CinsidcmtmJl therein

ci CiTVEN UNDER MY HAND AND SEAl. OF .OFFICE this __ _/jL_ _'~·:___ dllY nf

/ (j ·'1 _ _L;_;£,/~~~~~-.~. . ,.LY.__ ~'t8t.~~ Notary Public ro and Far 1lw ~'tate of Tex,;1~

~------. ·-- --~-- ... ----~ ... ·-~·-...---·"- .... - -·----~- ......... - .... ~,., ......................................................................................................... ....................................... \

Plaintiff002775 B1PORT ANT: RE4D THTS AGnEii:M~T AND CONSULT WITH \'O!JR L AWYER BEFORE SlGNINGt /] ~.::.::..

By: <...#u.:-t;~/- ·~~~P,J(:'-b· ... - Ai'it"N i\ L. STO K THC STATP OF TF.X;\S. ..§ § ('OlTNTY OF H..~t.RRlS * BEfORE ME, tb.:- undc:rsign~u authority. on th.is day pcn;onally apr--ure,: /\Nl'\A 1•.

STOCK. known Lome to be. the person whose namr.! is sub~eribed to tbe fcm~gl,iU<J illSI.rwm:nt

expresRe<l, n.nd iP ffle capacity thercin stntcd, and l1S 'her act nnd deed.

'f:t,;:{_ GIVI!N UNDLR MY HAND AND SE.\L Of OFPlCE this _Lfi __. __ day of j'\.~'f.~_. 2013.

~- ..............,_,, ........................_.~~--· _______ .. ·······............................................................_..._______,, __,_,,__.., .. .,....__..,.. ,....,.....

Plaintiff002776 IMI•ORTJ\ ,Vf: REAO THIS ACREEME~T AN'O CONSULT WITH Yot:R l.A 'WYER BJ.:FOiu<: SlGNfNG!

By: L ~ • • t:!lr • /,H •• -< . .,..:)~-·--- ---- . ·-···..··-···-· - )\-\'f\o.fAN H. J-ffiRENDEEN .... ~---

nIT STATE OF TEXAS COUI'VTY OF HAARIS

£3PFOR£ ME, the under.!>igncd aulhon:y, OJl this da} j)\!rsonull>· apJX""!.It..-J WVMAI\' H.

HERENDEEN, knou'tl l•) m:: lo h;,; lhe p.!~('f1 whose n:une is subscrib~d 111 the fi.H~going

instrument and acknowlcdge<.l to me fh<lt he ¢x;ecuted the same Jf.,r the pti}pose~ ami ~~.msidctatio11 th.erl'!iJ~ c~xprcsst.Xl, and in ihe capacity tberiin stared. al1.d ns his act .md d.:~.

_d~41 :JfJA(~_ Notary .Public In and f(>r The Stat.e ofTexa~

Plaintiff002777 IMI'~ORTAN'f: R EAD THIS AGREEMF~NT ANU CON~1JLT WHH VOVR l.AWYER BEFORE Sl(iNfN'G!

I)Jt ~ Dy: MA~RENO.EEN - -. - - - - - - - THES1ATE OFT!;:XAS § § COUNTY OF HARRIS §

Bli'-rORE ME. the 1111d~-:11li£ned authority, on thi ~ day pt:rs&MIIy appc:tlr'ecl MARY HEUENDEE;N. known w me to be the person whose name is subscnbe.d l<l the forego ing insw.un~m and acknowleqged to rne that she executec:l the same for the purP<)ses and consid~ntion !herein expressed. and in Ihe CB'f18City t~rcin stated. and as her act <Jnd deed

GIVEN UNDER MY HAND AND SEAL OF OFFICE thi£ -~ j ~___ day of ~~ > .:!013. ~a) .--/ _ /~ - · - ~-·%~ Notary Public ln and For ----·- -- f'he State ofTexllll

·-· ·- ···- ..........._........... • . . . . . . . . . . . . . . . . . . _ _ _ _ _, _ _ , , . 00400010 . . . . . . . . . . . . . . . . . . . . . . ..

-.. -....... . ........... . . . . . . . . . . . . . . . . . . . ........... ~ _~-o ~·······--·-··4-. ............- . . ____ ,_____,_,______ f.MPOR'JAJ.~l': .REAJ) THIS ACREE.I\-'tENT A,ND CONSUlT 'W{Tll YGU~ L AWYf!:R BEFORE SIGNING!

Hy: f.JF STATE Qf TC:XAs ~ ~ COUNTY 0¥ HARRTS §

BEFORE Mt:.. the uodcrsigf1cd authoritY, on this day personaU:y- appettr<.'d nm.t:::tnOON SHAU.Ili'l. kn0\\11l to me robe the pers0-n whose rmme i~ subscribed to th!l fmego'int~ instrun:renL

I~

Plaintiff002779 fMPORTANT: READ THIS ,\GREEMF.NT At~D CONSULT WlTH \OUR LAWYF.R REFOR£ S1GN1Nf;!

By: Tf-1 F. STATE OF TEX..<\ S * § C'OU:--JTY OF llARRtS

LiEFORE ME, tl1e undt:r!;ign~7J authority. on thb day pt:rsunall; <1ppc~r~d SOODY

and ::lcknowiedge;.l t(l me thw. sl1e ext:cuted the sa:me forth~ purpnst:s and cunsid~,·;Jti on therein \~~pr~:sscc,i. and in the Mpac.ity therein $1.ated, and as her a(:t and dt:ed.

GlVE:-J lJ:Ni..ltlR MY HAN11 AND StAL OF mHCE this ~'7 - . lluy ul' ;;za..,..-e-4-;J~ . 2013. ____au:U_if:~,£k~ Nota.: Public In a11d For ' ·-- AI'/}M L STOCK The State uf Texas ~IY COMMiSSION trl(I>;Ms tktober 6, 2018 ---··

'-=""---· '"""'"" ' '" '""'" """'- -~---·--· . -· ' ''"' ' '''"""""'"'"'"""'"""'"""''"""'"""''"""''"'"""-"'""'' ""'' . _,_. . ,v....,_...._..___ .,._.,.....__ _ _..,.__ Plaintiff002780 tMl'UllTANT: RE A]) TJ:HS AGltE.3Ml>.:NT AND CONSIJLT WITH Y()U{ LAWYKR .B'l<:FORE SJ(;NJNO!

By: THE.S1A11:: OF TEXAS COUNTY OF HARRiS

BEFOR(; Mf·. the undersigned authority. ou this doy pt•rsnhally appt:otf~d [!)WARD C.

RlZK known to me to be tbc person '' ho~ name is ~ubscn~d w the foregoing iP:-.In·mcnt and ackno;.vleclg,ed to rne that ht: execut<.ld the some for th~ purp~'>ses. and com:iu· ·:·woll lhcn:ir•

GIVEN UNOJ:R MY IJAND A D SEAL OF OFFrCE t!Hs :' 6>_ _ , _ day of _::_(/~',ht?~~~---· zo !3 Nott•ry Publ.ic Jn and f or The State ofTcxa.'l

----------~-- -- -·----·-···-·····-··-·····..········· ............. '' -- ,.... ....................................

Plaintiff002781 l~·IPOJH.~'IIT: RKAJ> THIS AGREE MJ<:NT AND CONSULT Wrfll VOnt LA WYJ.:R Bl!.FORE SIGK"ING!

THE STATE OF TEXAS Cot'":\TY OF HARRIS

BEfORE ME. file undct-sign\!d authori(y, on this d:~y 11er:r.onnlly appeared Bl LLIR RlZK. known tn me to h\~ th.e ~,crson whose nann: is subscribed to the fo1~g.oing in;;tmrnt:nt MO acknowlc..-dg.:d to me lhat she executed the same tor th..: purpos.:s and c(ln:-idt•t:ltion therein c.xpresM!d, snd in the capacity then: in s1ated, and as her act and deed.

GIVEN L:NlWR M'Y I Ii\ND AND SEAL OF OFFICE this _ _ I L .. day <If -....t...;-lc,-t~-71..4/ ··-·····. ~01 :; . ~~/ ._ o(,~tl~ ~ ----··- .... /? ~ -- ...,.-......- ·-···· Notary Public Jn and For The St~o~w t)f Texns

--- - - - --··- ---~- .................... ~-- ............... ........ ___"1................................. . . ' ...........,_,____... . ,..--... ·~-··-····· .-.. ..-.-~-·y · •··

Plai ntiff002782 lMPORTA'NT: Rf..A.D 'nUS AGREF.Mlr.NT AND CONSU.LT \VJTH YOlJl~ LAWYER BE.FORE SIGNING! .'/'-") /) '}~-~··</- J By: -#==- ~ BE~JM1LN L~ THE STATE OF TEXAS § § COllNTV OF HA.RRIS * BEfORE Ml!. tltc undersiglled authority, on this dny personuliy uppcareu llEl'\JAMJN LEviT, known to me to be Lh~ JlCI'SOO whose name 1,<; :;ub:.crHx:d to the foregoing instrument and acknowl~dg~d to . mtl 1hat he t;Xecuted the same for the purpusc~ and Cbl1$idcr~tim.l therein ex.pr;:s~ed. and in the capacity ther~in stated, and as his act and deed.

ONr N UNDER MY HAND Al\D SEAL OF OFF!CE this /f?~ dsy of _~;fkJwk· 2013.

I

L.~_e ~di~ucj > . 7 /J.

Notarj>...-l'~•blio !n 141d For The State of Texas

'

----·"'~'""""""''''"'""'''"'''''''''"'"''''''"''''''~········--··· Plaintiff002783 Il\IPORTi\NT: READ Tf11S AGRtE.M ENT AND CONSt:LT W(TH YOUR LAWYER .l lF.FORg SlGI'!l"G! By; ~vf ·.RTCA LE\"ff -·--------: THl:' STATE OF TEXAS § § COlTNl Y OF HARRIS §

BEFORE ME, th<: uJ}(lecsighed authority, on this dny personally appeared ERICA Ll~VTT, kn.own to 111e to l.>c the person wh,>Sc name is subscl'ibed 1o \he foregoing itllltnJJ'nem .and acl-.nowledgcd lo me that :)ile executed lho;; '>ame for the purpose~ and consideration thcrdn e~prt!SS!!d, and lll t:he capacity therein SUited, and ttS bet act and deed.

01VEN UNDER MY HANl) AND SEAL OF OFFICE this ~f<.._.. day ()f '/l'b:1!u!(.L~.- - 2013. •

·------------···-----·-···-·...···..···-·····-..- -·····-···------...·------·····..······--·-·-·..····---...------·····---··- - · ...--- Plaintiff002784 IMPORTANT: RE ·\D UI!S AGREEM£~T AND CONSUl ,T WITH 1~m · R £ AWVF.R BEFORE SJG~fNG!

By: TllJ.: S I'A lli OF TI!XAS COUI\ I Y Or HARRIS

BEFORE ME. the w1der.;igned •~uthority, on ;his day pcrsu11a1ly appeard W,\Lnm J.

TAYLOR, kMwn t<) me to hi,) the p¢t'!!.(>n whose name 1s subscribed to lhe~ t{m~gDin t! instrumt'1ll

cxprcss;ed, ~md in the capacity tht::.l'l::iJ1 sltiled. and a;; his acl and dt:ed ;d G!VFI\' CKDF.R \1V I L~ND AND SEAL OF OFrrll. thi:.. I t( -:- - c.b y of =.zz_v>t:~·vt~"l/-- . . 2013.

- - ·-·--· -· ---- Not.ary Public lJ~ nnd For 'l he SMe of rexas

..............................,.,_,.,..................,..______________________ , ...,. ..... ___ ,. ------ Plaintiff002785 JMPORTAJ\"T: REA D HHS AGR.EEME!'\I'f ANU CONSUL'l' Wl TH YOVR LA.WY!tR U£Ji'ORJ~: S1GNJNG'!

THE STATE Of TEXAS § ~ COl l'NTY OF HARRIS * BEFORE M(!, rJw undt:rsigned authority, on this Qay pers(')nally a,ppcared A.<"liTA J.

e~pn~ssed, an<! in the ct-lpacity ·thl'!tein stmed. and a'! ber act and deed.

GlVEN UNDER MY HAND AND SEAl. Of Of.F lCE 'tl1i~ _ _i~~,·-- da.y of _2j...1rf."-l6:1t-,.4.e:-~, 20T3.

·-- -··-··-··-··--· .. -·· --·-····----- ------ '" ..................................................... ........................ , , ., .. .

Plaintiff002786 CAUSE NO . 2013-14192 ELIZABETH HOWARD C ROWELL § IN TH E DISTRICT C OURT § § VS. § § § JA NDOR GA RDENS ASSO C IATION. INC.. § GEORGE L. PARKER. E VA K. PA RKER, § SARAH WHITING, RON WITTE, § LAWRENCE E. PLOTSK Y, RIC K RAMBO, § 55TH JUDICIAL DIST RICT FR.AJ'ICES RAMBO, DA VlD D. STOCK , § ANNAL. STOCK, WYMA N H. HE RENDEEN, § MAR\' HEREN DEEN, F ERE IDOON § SHARI Ff, SOODY SHARIFf. EDWA RD G. § R1ZK, BILLIE RlZK, DENJAMIN LEVIT, § ERICA LEVIT, GARRETS. MADDERRA. § G EORGE W. HAWKI NS, EILE EN K. § STARBRANC H, C ATHERIN E A. MORGAN. § G EORGIA W. mTC HCO C K, JAMES § C ARPER. WALTER .J. TAYLOR. ANIT A J . § TAYLOR, AND ERIK MAZZIOTTA § HARRIS C O UNTY, TEXAS AGREE D M OT ION TO DISMISS WITH PREJ UDICE Pl aintiff Elizabeth Howard Crowell and Defendams Jandor Gardens Association, Inc .• Safah Whiting., Ron Witte, Lawrence E. Plotsky, Rick Rambo, F1•ances Rambo, David D Stock.

Anna L. Stock, Wyman H. Herendeen, Mary Herendeen, Feteidoon Sharifi, Soody Sha1i fi.

Edward G. Rizk, Billie Rizk, Benjamin Levit, Erica Levit, Walter J Taylor, and Anil.a J. Taylor (col lectively. the "Parties") move jointly for dismissal with prejudice of all claims, counterclaim s. cross~cl aims, third-party actiorts. and causes of action asserted by the Pa1i ies herein. All claims between and among the Parties have been fully settled and compromised. The Parties requesTthat the Court grant. this Agreed Morion to Dismiss with Prej udice and enter the Agreed Order submitted herewith .

EXHIBIT A- PAGE 1 OF 5 Plaintiff002787 APPROVED AS TO FORM AND CONTENT:

By :_ _ _ _ _ _ _ _ __ John B . Shely State B ar No, 182 15300 Courtney B. Glaser State B ar No. 24059824 ANDREWS KURTH LLP Travis, Suite 4200 Houston, Texas 77002 713..220.4200 Telephone .220.4285 Facsimile ATTORNEYS POR PLATNTIFF ELIZABETH HOWARD CROWELL

By : _ _ _ _ _ _ _ _ __ James J, McConn, k State Bar No. 13439700 HAYS McCONN RICE & PICKERING 1233 West Loop South, Suite 1000 Houston, Texas 77027 .654.1111 Telephone 13.650.0027 Facsimile ATTORNEY FOR DEFENDANTS JANDOR GARDENS ASSOCIATION. INC., RON WTTTE, RICK RAMBO, WYMAN H . HERENDEEN, ANNAL. STOCK, and FEREIDOON SH ARf.Fl

By :_ _ _ _ _ _ _ _ __ Eric Lipper State Bar No. 12399000 HTRSCH & WESTHEIMER, P.C.

141 5 Louisiana, 36th Floor Houston, Texas 77002 .220.9 181 Telephone .223.93 19 Facsimile ATTORNEY FOR DEFENDANTS WYMAN & MARY HERENDEEN, BENJAMTN & ERICA LEVIT, LAWRENCE E. PLOTSKY, R ICK & FRANCES RAMBO, EDWARD & BLLLIE RIZK, FEREIDOON & SOODY SHARIH D AVID & ANNA STOCK, WALTER & ANITA TAYLOR, and SARAH WHITfNG & RON WITTE

-2- llOl' :.U68tl40.1 EXHIBIT A - PAGE 2 OF 5 Plaintiff002788 CERTIFICATE OF SERVICE I hereby certify that on November___, 2013, this document was electronically filed with the Ranis County District Clerk using the electronic case tiling system of CasefiJeXpress. The electronic case filing system sent a "Notice of Electronic Filing" to all attomeys of record who have consented to accept th.is Notice as service of this document by electronic means. I further certify that on N ovember_, 2013, this document was forwarded in the manner indicated below to the following: Via Facsimile ami Email Via Facsimile and Email Eric Lipper James J. McCo~ Jr. H irsch & Westheimer, P.C. Hays, McConn, Rice & P ickering The Wedge International Tower 1233 West Loop South, Suite 1000 1415 Louisiana, 36th Floor Houston, TX 77027 H ouston, TX 77002

- ., - .)

NOU:3368040.1 EXHIBIT A - PAG E 3 OF 5 PIa intiff002789 CAUSE NO. 2013-14192 ELIZABETH HOWARD CROWELL § IN TKE DISTRICT COURT § § vs. § § § JANDOR GARDENS ASSOCIATION, INC., § GEORGE L. PARKER, EVA K. PARKER, § SARAH WHITiNG, RON WITTE, § LAWRENCE E. PLOTSk."Y, RlCK RAMBO, § 55TH JUDICIAL DISTRICT FRANCES RAMBO, DAVID D. STOCK, § ANNAL. STOCK, WYMAN H. BKRENDEEN, § MARY HERENDEEN, FEREIDOON § SHARTFI, SOODY SHARIFl, EDWARD G. § RlZK, BILLIE RlZK, BENJAMIN LEVIT, § ERICA LEVIT, GARRETS. MADDERRA, § GEORGE W. HA WKJNS, EILEEN K. § STARBRANCH, CATHERINE A. MORGAN. § GEORGIA W. IDTCHCOCK, JAMES § C ARPER, WALTER .1. TAYLOR, ANITA J. § TAYLOR, AND ERTK MAZZJOTTA § KARRIS COUNTY, TEXAS AGREED ORDER OF DISMiSSAL WITH PREJUDICE ON THIS DAY the Court considered the Parties' Agreed Motion to Dismiss with Prejudice seeking the dismissal of' all claims, counterclaims, cross-claims, third-party actions, and causes of action asse.rted in this action by the Pai1ies. The Agreed Motion to Dismiss with Prejudice is GRANTED.

It is therefore ORDERED that all claims and causes of action asserted ia\ this case are dismissed with prejudice.

SIGNED this _ _ _ day of _ _ _ _ _ _ _ _ _ __ , 2013

JUDGE PRESIDING

EXHIBIT A- PAGE 4 OF 5 Plaintiff002790 APPROVED AS TO FORM AND CONTENT:

By :_ _ _ _ _ _ _ _ __ John B. Shely State B ar No, 182 15300 Courtney B. Glaser State B ar No. 24059824 ANDREWS KURTH LLP Travis, Suite 4200 Houston, Texas 77002 713..220.4200 Telephone .220.4285 Facsimile ATTORNEYS POR PLATNTIFF ELIZABETH HOWARD CROWELL

By: _ _ _ _ _ _ _ _ __ James J, McConn, k State Bar No. 13439700 HAYS McCONN RICE & PICKERING 1233 West Loop South, Suite 1000 Houston, Texas 77027 .654.1111 Telephone 713.650.0027 Facsimile ATTORNEY FOR DEFENDANTS JANDOR GARDENS ASSOCIATION. INC., RON WTTTE, RICK RAMBO, WYMAN H. HERENDEEN, ANNAL. STOCK, and FEREIDOON SH ARf.Fl

By :_ _ _ _ _ _ _ _ __ Eric Lipper State Bar No. 12399000 HTRSCH & WESTHEIMER, P.C.

141 5 Louisiana, 36th Floor Houston, Texas 77002 .220.9 181 Telephone .223.93 19 Facsimile ATTORNEY FOR DEFENDANTS WYMAN & MARY HERENDEEN, BENJAMIN & ERICA LEVlT, LAWRENCE E. PLOTSKY, R ICK & FRANCES RAMBO, EDWARD & BLLLIE RIZK, FEREIDOON & SOODY SHARIFI, D AVID & ANNA STOCK, WALTER & ANITA TAYLOR. and SARAH WHITlNG & RON WITTE

- 5- llOl' :.U68040.1 EXHIBIT A - PAGE 5 OF 5 Plaintiff002791 Form 65'2-Gcncntl lnfo rmation (Cerfifit.:ue ofTermln:Hion of ;l ()omestic OllJ•rofit Corporl'lfion or Cooper:ui"e As.~-()Ciafio n) The nUMbed form is designed to med miui1naJ st~tutory fiJing rcq11ircmmts p11 r~1Snt to Lite rde\>al'll code provinon$. 7ht.< fum; fmcilht•m/iJmru(t~N' fWYJWdw.l ur~ 1101 !wh.,·lflrl/c (fiJr 11~ tMI\'JIN fllrci ,\'Y!rtlt(·es oj <m mwrne1• unci rax J.{Wdalu·t.

Comment.1ry Wben the owners. members or governing authorit)• of u domeslic entity have dc.tcnninod tbat the ~is tence of a•' entity hould ce.rmiuate, or there i~ an o~orrenc.e of an evenl specifi ed in the ~o,• erninl( documoots requiring 1hc \\indiog up, dissolution or termination of o domestic entity. tb~ ootity should follow the pl'<>eedur.::s for· windl1\g up rhe busioes~ and a0a1ts of the e.~lity in the mannef p• ovided irl chapter II ofth~ Texas Business OrgBllizations C'ode (BOC). On completion of the winding up pJoce.ss, a tllintt en tit)' mu.st li.le t1 ~rtitieatc: of tcrmlNition "itb tltc sc:cret:uy of Slate. /rrl\ fnrm ' n11ly app/Jcoh/1! IO t/N! lt!I'»>IIKtlfnn tif(J IKNtj)N~flf C.'OJ'jXN'ttlllJJI t'N' 0 COO{~fY-1111'1! ll...~/afiOJI.

rn:u ructiou~ for Form • Items l-4--Entity Information: The certifi cate of termination musi contain tJte le.gal name of ltle t'tltity <~nd the file: number ~isnoo by thl! :s¢erct<try of state. It is rcoommL'tldoo that dtc c:ntity typ~ and date of formation be prO\'ided to facil itate processing of the document. NQ/1! that tlus form .'~hmlld CHI~~· IJ.c Uli<'Ufor l/11.• I(J1'111i(tllliUII q(a lf('I>IIJXfJ.{il t'()I]}I'J{'fl fiQII or ( I C:WJXlrtllilf'it (~'<oqx:iation .

• Item 5--Coverning Persons: The ccnificate of'tcnmnation mus1 sc.l tortb the numc and <1ddrcss of each of tbe filing entity's g<Wemins per!!ons. In general, a nonproti t coi'Jl<)fation must hav~ at least tltree directors. and 11 coopcruti\'1! association must huvc thn...--e liquidating tntitC{!S. Set forth the name of the indiYidual in the format SJ>l!Cified. Do not use pceftxes (e.g., Mr , Mrs , M$. ). Use the suffix box only (or titles of lincag.c (c...g., Jr , Sr.. IU) and not for oilier sutftxt:S or titles (e.g" M.D.• Ph D ). An address i~ .always required fi')( escll gcweming person.

Please note that a dooument on tile wiUl tbc secre1JUy or state IS a public record tha1 is subject 10 public aoce.ss a11d disclosure. When providing addtess infonnation for g:<)\'emiog perso1~ use a business or' J>OSt office box: address ntthcr than a rcsidooce address i 1 privacy concerns are an issue. • hem 6-Everlt Rt>quiring Windin,2 lip: The certificate of tentlinatiOJl nlll$t state the natu~ of the CJ\I fl'lelu.irin(l windUI(l up of tJte entity. $().';tions J 1.0$ I lO ll .059 of the {.'\1 noc C<lutalo provisiOtl$ relarins to tlte windins up of a domestic entity ecrjon II 051 J) rO\•ides char wi1tdins up of a domestic l!lltity 1s required on the approval of a volunllll)• decision co wind up tJtc c:ntity (option A): rh.e e~pirntion of the entitr'~ period of duration as specified i1\ its certificate offormati011(option B) , the OCett.rr\'21ce of an c\·ent speaflcd io the governi ng documeut.s requiring \viodin~ up (op1ion ('), the occurrence or an e"V"ent specified by the ROC requiling winding up l<)JMiOil 0 ). ()(a decree b)' ~ cot1rt rcquiri~ winding up Of ills:solution of the ttntity rcndcrl'ltl under the .BOC or oUt<:r law (option F.)

Selec1 lhe applicable e' •e111 reqtt.irius the win clir~g up 01 tl!rmiMtion Qf the e.nl1ty l7N! W!Cfli/GfJ' of slnlc: will r c.:jcc:f (J n:rrifit'(lft• uftuminatiQit if iftl/11 6 iJ Ittl/ l'umpflflc:d.

I EXHIBIT B- PAGE 1 OF 6 Plaintiff002792 • St.atcmrnt Rc:g.a rding Completion of Winding Up: Tbe certificate of lct1ninatioo must provide t11st the fi ling e11tity has complied \\ith 1he provisioM of the BOC governing its wi nding up. Pie~ revtew the wind.mg up proccd~ in subcbapte:r 0 of cbapte:r LI or tbe UOC and uny supplement'<tl winding Ufl procedures tim may apply to the tiling entity. • Supple.nemal 1rnron11ation Requh•ed for a ~onp•·ofit Corporation: The certificate of tcnninntion of a nonprofit oorpomtion must contain a suuemen1 that· (I) A11y propcny of t11e nonprofit corpon~tion bas boon lTllllsferrcd. conveyed, applied, or distributed inacrordanoc witll thap1cn> II and 22 of the BOC. {2) There i$ no suit pending againSt the noopmlit corporation (}IT adeqtmte prov isioo has been made t"or tl~ S<1tis factioo of" liD)' jud!,rmcnt. order or decree 1ftat may be entered agait\5.1 t11<: nonprofit corpor~ion in 11 pending suit , (3) If 1fte nonprofit oorporation reiX!ived and held prop~ty pcm1itted to be used only fOt charimble. religiOllS, efe~n osynary , b~ne,• oleut, edu~ l i<>1ll\l , or simil3t pu rpose:~. b~Jt tht= nonp•olit oorporatioo did nOt bold 1fte propcsty 001 a COJlditioo requiring rewm, transfer. or cou\lcyance bec..'lu~ oft he windi 11~ up a•.d tl!ll'llintniM, the tlisuit>ution ofthr11 propeny hilS been efl'ect.:tl in accordan~ w'ith a plan of distribution ~dopted in compliance widt the BOC for the distributiOil of th~t PfOper1)' • Rrrcec iv en ~ (If Filing: ,\ Ce1"tific.'lte of t~nination becom.~s enective wt•en rlled b)' the ~creta ')' of suue (optioo A). Hm.,e.v.er, pursuant to seclimts 4.052 and 4.053 of the BOC the etTecti~neS$ of the irt~nnn..:n t may bt: dtla)' ~ h> ;1 date not mOJ'I! than ninely (<}())days from tl•t: date tho;: in:>trument is signed (option B}. The elfectivenes:$ of the imtrument also mar be delayed 00 the ()CCUrT'ellCe of a fl1tll•'l! e ...·wt or f<•Cl. other thM tlle ~SSIIg..: of tim..: (option C). tfopti()n C i~ ~lected, you must &tate lhe mannel' in which tlte event or fact ~\ill cause the instrumem to take eflect and the date of 1fte 9fih dJI}' al\.:r the dute tl•e instn.nn..:nt is ~gn~ In ordt:r t"oi' th~ ~ificate to take t:ff~t und~r optiOn C.

1he entjty must, \\ithin ninecy (90) da~ of the til in~ of t11e cenjficste, file a statement wi1ft the sec~aty of stme regilrdiug the evevt or fact pu~uaut to s~tion 4 OS~ of the .UOC' On tho;: fi ling of n d<x;ument with" dd<tyoo dl'ectivc date: or coodition, tht: tornputer ri!>Wrds of the sec~ary of state will be ch3fl...!;Cd to show the filing of the doet1 nH~nt~ the date of the Iii ins, and the future date 011 which the dO<:u.meot will be effective or evidence that the elTcG4i\'ettCS!> was condi tioned on tile occurrence of a fitture event Of' fact ln addition, at the time of such fili1\_g, the Status 6f tht: fil ii~ entity will be :shown as "voluntarily tcnmnated" oo d1e records of the secretary of st3te • F.-'l:er<ution: P(JtStll!nt H) secli()f'l 4.00 I <»f the ROC, the certificate of tennination m~Jst be si sned by u pe®n iluthoritcd by the UOC to act on behalf of the t"l'lti ty io regard to the filing 1nstnmlen1 t\ certlticate of termmauon filed br a nonprofit corpomclon should be signed by an officer of the COI'J»rnti on (ROC § '20 00 t) A oertilicate of tenni1111~ion filed by a coot,ert~tive ~iation ~hould t~e signed by an officer of ll1e coopemtl\'c or by one or more of tlle pcn;ons designmed ns n liqtndauog trustee undcc soctlon ..j() I of tl1e ROC (ROC' ~ 2.$ I 402) A of termi•lllliQil need JlQt l>e not:uh::ed How.:vl!f, bt:fore si~lli!Jg , please rea<J d1e ~rtilicote statements en tbis tonn carefully. A perStm cwmmts an uffiJIM.' 1111der seclioii4.01J.'~ qftl~t· BUC tfihe EXHIBIT B - PAGE 2 OF 6 Plaintiff002793 person signs or directs the filing ofa .filing instmment the person knows is materially false with the intem that the instrument be delivered to th~: secretary of state for jiliog. The qffense is a Class A misdemeanor unless the person's intem is to harm or defraud another, in which case the qffensc is a state Jail felony. • Payment and Delivery Instructions: The tlling fee for a certificate of termination for a no11prolh corporation or cooperative association is $5. Fees may be paid by personal checks, money orders, Lega!Ease debit cards, or American Express, Discover, MasterCard, and Visa credit cards. Checks or money orders must be payable through a U.S. bank or ·financial institution and made payable to the secretary of state. Fees paid by credit card are subject to a statutorily authorized convenience fee of2.7 percent of the total fees .

Submit the completed fom1 in duplicate along with the fi ling fee . The form may be mailed to ·P.O.

Box 13697, Austin, Texas 78711-3697; faxed to (512) 463-5709; or delivered 1'0 the James Earl Rudder Office Building, 1019 Brazos, Austin, Tex:as 7870l. If a document is transmitted by fax, credit card information must accompany the transmission (Form 807). On tiling the document, the secretary of state will return the appropriate evidence of filing to the submitter together with a file- stamped copy of the document, if a dup[jcate copy was provided as iustructed .

Rcvi~c-d 05! 1 I

Form 652 3 EXHIBIT B - PAGE 3 OF 6 Plaintiff002794 Form652 This space reserved for office usc. (Revised 05/'11 ), Rerum in duplicate to: Secreta1y of State P.O. Box 13697 Austin, TX 78711-3697 Certi ficate of Termination 463-5555 of a Domestic FAX: 512 463-5709 Nonprofit Corporation or Filing Fee: $S Coo erative Association Entity Information

I The name of the domestic entity \s:

2. The entity is organized under Texas law as a 0 nonprofit corporation 0 cooperative association . .3 . T he date offon:nation of the entity is: 4. The fi.le number issued to the entity by the secretary of state is: Governing Persons 5. The names and addresses of eacl1 oft'he entity' s goveming persons are: (•oc mAirt•clio"~) GOV.ERNTNG PERSON ,J NA M£ (Enl<r 1he n,une c•J dil\.r nn inclividuuJ (IT nn •'llgQllit OiiOt\, b1ll tWt bolh.) fFl\'I'DJVnll:AL

F1r$1Nrmu• MJ Lnst }lftm'' S>f!Ti-•· OR 01WA;\IIZAT IIIN

0 1'J;IUJfZ:'tJiitm .LV Omit ADDRESS

Srr~l'l or Mmling IJ(/dre ..._, Store Ziv Cod¢ - - - C.w c;,''"'"'' COVE.RNING PERSON 2 NAME ()'<llor 1)\e •lam• ~I' ehher "'' Jl'l\IIYtdual ol' !VI Orj)PlliZ~Ii•'•i•.~ll1 110t bo!h,) IF INI)IVIIllJAL.

F"irNI l\rWJI{' M f /,(J.\'t N mut!. -"t'./fi.l' OR ID ORC:;\NTYA-1.1'10!'\

OrJ:tn~iwtiou _Vamd A I)I>RESS

,Wr.:.·r o1· .~ failio~ vlddr<'.•s - - -- -- - -- - - ( ·;rv S (ufe Co.rmlry -- -- -- --------- Zip Code - - - -- -- -

EXHIBIT 8 - PAGE 4 OF 6 Plaintiff002795 GOVERN.ING"P&RSON 3 NAME (f1nluJ' th.:: mun.: uf dthc:t' an arhtividu:·•l c•r m1 '.uM_aui7:11h,n. l'ull out buth.)

II' INDI\ ' WI0.\1.

HNI .\ '{Nil<' \11 L119t .\'.!me S•li}1X OR n·ORGANU'..\ 110}1; n r gmw::...Jium Vmu,-..

ADDRESS Str.-...t or I ftrilir!J!: .Ir!dress. Ci~ll St111~ Cormiry Zip Ct>tle GOVERNING PERSONA NAME ( l!.n1« 1h~ muue- nf cuhcr•Htt andivitlu!\1 or :111 ot g:utiZlii HH\.. hu1nQt hffik) Ill' l NDIYffil::\1.

J•w.:u Nom{· M. J / J(I.tl .Vamc :;uj]i."< OR fF 0Jl(;,\ XJ7. \ l'lON

()rg<111~i1/11Jn V.rmq ADDRESS

S/rl!,•t 01' M 'a lfln!4 .lddr,•M CfN Stolt' Cvumw Zip Cod,•

Event Requi r ing Winding Up (Ike ill~fr\lc!km$) 6. The nature of the event requiring winding up i:. set foitb below ( Sclccl Cllhor A n, (._ 1), or J' ) 0 /\. /\voluntary decision to wind up 1he enJity has been approved in t11e m!lnner required by the Texas Business Organizations Code and by tlw governing documents of the entity.

0 D. The period of duration specified in the governing documents of tJw entity ha.s expired.

0 c. The occun·ence of an event specified in the governing docum.ents of the entity that require,~ the winding ul), dissolution, ortermination of the entity D. The occunence of an event speci fied in the Texas Business Organizations Code that require!~ rbe winding up. dissolution, or tennination of the entity on A court decree requiring the winding up, dissolution, or tennmation of the entity has been 0 E. rendered under the provisiOJls ofth0 Texas Business Organizations Code orot·h er law.

Com t>letion of Winding Up 7. The tiling entity has complied with the provisions of the Texas Business Organizations Code governing 1ts winding up Sut>r lemental Inforrnnti:on Required For a Nonprofit Corporntiotl The twder!signed authorized person actin~ 011 behalf of the named nonprofit corporation certilies that.

EXHIBIT B - PAGE 5 OF 6 Plaintiff002796 I. Any prop~rty of the nonprofit corpomtion l1as been transfened. conveyed. applied. or di sttibutcd in accordance with chapter l Tand chapteJ 22 of the Texas Busine~s Orsanizations Code. There is no suir per1ding against the nonprofi! corporation or that adequate ptovisio1' has been made for the satisfaction of any judgment, order or decree that may be entered against the nonprofit col'poration in a pending ~uil ~ T'f the nonprofit corporation r'eceived <tnd held property permitted to be used only for charitable, religious, eke:rnosynary, benevolenl. educational, or similar purposes, but the nonprofit corporation did nol hold the property on a condition reqL1iring return, tr<tnsfer. or convey<tnce because of the winding up and termination. that the distribution of that property has been effected in accordance with a plan of distribution adopted in compliance with tl1e BOC for the distribution of that property Hffectivene.ss or .Filing (Sel~ol oilhQr A. l:l, or(..".)

A 0 This d'ooumenl becomes effective when the document is filed by the secretary of stnre B. 0 This document b.ecomes effecl[ve at a later date, which is flO! more than ninety (90) days from the date of signing. The detayed effectl vc date is: C. 0 This docLmtcnt takes effect upon the occurrence of the future evont or 11tct. other than tJ1e pa:~sase of time. T he 90 day after the date of signing is:

The followin" event or fact will cause the document to take effect in the manner described below.

Execution The unde~igned signs this docunlenn subject to the penalties imposed by law for the submi ssion of a materially false or fraudulent iLtstrument and certifies under penalty of perjury that the undersi gned is authorized under the provisions of law governing the entity to execmte the filing instrument.

Date.

A pe~on autborized by law to ex.:eule r.lte tiling i nsuument (o~e iu~lrut"li<)ll")

Printed or Wpc<1 n~me of authoriztd ~tson

[~rint : II Re~~(l

(; EXHIBI T B - PAGE 6 OF 6 Plaintiff002797 CAUSE NO, 2013~14191 ELIZABETH HOWARD CROWKLL § lNTIIEDIST.RICT COURT § § vs. § § § JANDOR GARDENS ABSOCJATION,INC., § GEORGE L. PAlU<EU, EVA K. PAlU<ER, § SARAH WHITING, RON WIJ"''E, § U WR.E.NCE E . PLOTSKY, RICK :RAMBO, § 5ST1I JUDlClAL DlSTRICT FRANCES RAM!lO, DAVID D. STOCK.

ANNAL. S"roCK, WYMAN H. HERENDEEN, § § .v MARY BERENDEKN, F.EREIDOON § SBARlFJ, SOODY SHAlUFl, EDWAlU> G. t RJZK. BILLm RIZK, BENJAMIN LEVIT, § ElUCA LEVlT, GARRETS. MADDERRA, § Gl!.ORGE W. HAWKlNS, EILEEN K. § STARDRANCD, CATHERJNE A. MORGAN, § . ~., GEORGIA W. HITCHCOCK, JAMES § CARl'ER, WAVl'ER J. TAYLOR, .ANITA J . § TAYLOR, AND ERlKMAZt.lOTTA § HARRIS COUNTY, TEXAS ORDER Oa tbia day, the Court considered tho Unopposed Motion for Entry of Order £ilod by Plninti!f Eli:Gllhcth H"ow(U'd Crowell. The Cout't flnds Ulnt good oause o.xistB to GRANT the mellon. For the reasons act out In PJ11intifrs Motion for Su.n\Jnory 1udgmcnt, and beoD\1$0 notice required under Property Code § 204.006(1) & § 204.00S(c) wu not (liVen to PlaintlO', lt is, cher·efore ORDERED that the "Notioc of Jlormnlion of Petition Committee" filed Novc;mber 8, 2012 (Ha.rris CountY Clc:rk File No. 20120521806) hils no force and elleol, is ,. ' nullified, and is no longer a cloud on the tlllc to, and t ight of ownership o~ the Proper1y; t~ is further ORDERED that the "Pel\llon Approval" tiled Novernbor 8, 2012 (Harrl.s Count)' Clerk Pilo No. 20120S21807) has no foroc -"d effeot, ir. nulliflod, e.nd is no loneer a cloud on the title to, nnd right of ownership of, the l'ropet1y; FILED Chrl& DaniOI Dl•trlct Cltrk IJOU:3lS019U OCT 0 8 2013

EXHIBIT C - PAGE 1 OF 4 Pia intiff002798 J

It ia further ORDERED that the "Petition and First Amondmoat to Declaration Cot Jandor Oardens" fJJcd November 8, 2012 (HilU"is County Clerk File No. 20 12052 1808) has no force and effect, is nullified, and b no longer o cloud on tho title to, und right of ownership of, the Property; lt Is further ORDERED that the "Petition Pursuant to Pcopert)' Cod.e § 204.006 To Crelltc TI1e Jandor Gardens Association, lno.'' filed November 19, 2012 (Ha·rris Collnty CleTk File No. 20!20536661) has no force und effect, is nullified, and is no loogcr a olou.d on the title to, and .' right of ownership of, the Property; lt is furthor ORDERED that the "First Amendment to Deoloretion for Jandor GDrdeos" r filed November 20, 2012 (Harris County Clerk File No. 20120S40l6'2)hu no fon:e and effect, is nullified, and is no longe1' a cloud on the title to, a.nd right of ownership of, the Ptoporty; It is further ORDERED that the "Notice of Porroatlon of Petition Ulmmittu'' filed November 14, 2012 (Harris County Clerk File No. 20120530364) has no force and effect, Is nullified, and is no lonur a cloud on the title to, lllld right of owntll'ship of: the Pro pony; sud It ir further ORDERED that tho ''First Amcndrnont to Docloradon for J'andor Gardens" fllcc:l March 19, 2013 (Harri~ County Cl11rk File No, 20130126400) hns no tbcoo and e!Tect, is . ' •f . nullltlcd, and Js no longcc a clo\ld on the Iillo to, and right of ownership of. the Property.

'l'hls Order in no manner affcot5 tl1c right of any party to appeal the Order. ~~ ~.

Y:;' day of_....:rO~J- '- .....

0 SIONBD this _ ___.2013. l!• .,.,..., ~ g ,... .,.,

Rou.mom.2

EXHIBIT C • PAGE 2 OF 4 l f

Plaintiff002799 JuniY m, Shely Eri~ppcr { / · S c arNo .. lS215300 ~lo.Bar N~920.0.Q, C u ·ey B. Glaser HIRSCH & WESTHETMER., P.C.

S Bar No. 24059824 1415Louisiona, 36th Floor ~ RRWS KURTH LLP Houston, Texas 77002 Travis, Suite 4200 7t3.220.9181 Telephone Houston, Texas 77002 713.223.9319 Facsimile 713.220.4200 Telephone ~.220.4285 Facsimile ATTORNEYFORDEFBNOANTS WYMAN & MARY RBRENDEEN, ATIORNBYS FOR PLAINTIFF BENJAMIN & ERlCA LEVIT, ELIZABETH HOWARD CROWELL LAWRENCE E. PLOTSKY, RlCK & FRANCES RAMBO, .E!DW hRD & BlLLTE RlZK.

FE.RBIDOON & SOODY SHAlUFl, DAVID & ANNA STOCK, WALTER & ANITA TAYLOR. and

~t&- · SARAH WHITING & RON WITTE By: ~ ..

J&Jnes 1. McConn, Jr. State Bar No. 13439700 HAYS McCONN RICE & PlCKBRlNG 1233 Wost Loop South, Suite 1000 Houston, Tex.as 77027 713.654.111 1 Telephone 713.650.0027 Facsimile ATTORNEY FOR DEFENDANTS JANDOR GARDENS ASSOCIA-TION, INC., !tON WITr.B, RICK RAMBO, WYMAN H. HERENDEEN, ANNAL.

STOCK., and FBREIDOON SHARJFI

,IIOU:3lS0701.l

EXHIBIT C - PAGE 3 OF 4 Plaintiff002800 I, Chris Daniel, District Clerk ofHanis County, Texas certify tbat t.his i.s a true and correct copy of the original record filed artd or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my oftloiaJ hand and seal of office this October25. 201.3

Certified Doc.umcnt Number: 57702657 Total Pages: 3

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

Tn accorda'nce with Texas Gove)·nment Code 406.0l3 electronically transmitted authenticated documents are valid. If there is a ques tion regarding the validity of this document and or seal please e-mail [email protected] ·

EXHIBIT C- PAGE 4 OF 4 Plaintiff002801 ~~~..-~r- .. n ~ .... ~'!ltt Q6 •'

EXHIBIT 0 - PAGE 1 OF 2 Plaintiff002802 EXHIBIT 0 - PAGE 2 OF 2 Plaintiff002803 Corporations Section Carlos Cascos P.O.Box 13697 Secretary of State Austin, Texas 78711-3697

Office of the Secretary of State

The undersigned, as Secretary of State of Texas, does hereby certify that the attached is a true and correct copy of each document on file in this office as described below: Jandor Gardens Association, Inc. Filing Number: 801686494

Certificate of Termination November 20, 2013

In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on April 02, 2015.

-- Carlos Cascos Secretary of State

Come visit us on the internet at http://www.sos.state.tx. us/ 119 Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services Prepared by: SOS-WEB TID: 10266 Document: 599592520005 1112a12013 12 37 7135211633 SCHULTZ PAGE a2/Hl

Thts space reserved for office use Form 652 (Rev1sed OS/11) F ll E 0 In the Offtce of tne Return m duphcate to Secretary of State of Texas Secretary of State P 0 Box 13697 NOV 2 0 2013 Austm, TX 78711-3697 Certificate of Termination 463-5555 of a Domestic Corporations Sectron FAX 512 463-5709 Nonprofit Corporation or Filing Fee $5 Coo erabve AssQCJatlon Enttty Information

v The enttty ts orgamzed under Texas law as a 12?nonprofit corporation 0 cooperatt~e assocultiOO The date of formatiOn of the entity IS II- I~- I'- The file number Jssued to the entity by the secretary of state IS Governmg Persons The names and addresses of each of the entity's govemmg persons are (see m>tm<.w.>n•l GOVERNING PERSON I NAME (Entcr the name ot c1ther an mdrv1du11l or at~ Of"&\lOI?.3tJOn. but not both} IF li'olJIVItll'AL

Ftr~Name f!:.·'ck. '- 1<'3"" /,, t1/ ~JName Sr!ffi> OR IF ORGANIZATION

Organl:all()n Name ADDRESS 3:l.'Zl X:p,;f,-{,.r.~ Street or MalitnJ?. Addres> L,., tfo .. s.fPt~ Oty IX 77ao5 Stat< romurv LmCode GOVERNING PERSON 2 NAME (Enter the name of<:1ther an mdwtdua1 or an o.rgamzutmn but nul both ) IF INDIVIDUAL 1....1'1. - ..... l~· L+ • """' ... et...Ml-c...t F1rsl Nome Last Name Suffix OR IF ORGANIZATI0:-1 ~ --~~d 0 "' 1 Hlll Organt=allon Nam£ ' tll~ ' tl/)i . ~ 'n WI ADDRESS ~N.$'1'1 I lA LAAJG A).:.> <n. 1 c _ .v ) f)<. '(tPil."l}t jll~ 4 \ ' 7'C! q,..- l ' Ii S;r.:J<_ t'<- • ~treer or Mat/mg Address Otv State Cmmt11 7nCode I 4 120 EXHIBIT 8 - PAGE 4 OF 6 1112a12a13 12 37 7135211633 SCHULTZ PAGE a3/10

GOVERNING PERSON 3 NAME (I:nterthc narne of e1ther an md~vt.1ual or an QfgtmtVJhon, but not both) IF IND1V1D\IAL l~otvi\W tTiE Ftrst Nam~t All Last Name iilr/Tu: OR tf0KGANI7.ATION

OrgamzaltQn Name ADDRESS '5'1ov 1/YS" { I TV TE / _ __,.,_ 'F fPJ /,-- > IV /v r TX: +7-aor- 'ib·eet or Ma•lmg Address Cuy Mate '()!t!fff'\J 7to CQde

GOVERNING PERSON 4 NAME {Enter m, natl'l¢ ofetttu:r an mdlVIdual or an ()rgamzabon llut not both} IF 11'1)1\'ID\lAJ,.

Fu•st Name Ml Last~ame Stif}" OR IF ORGANIUTION

Orgam::;.afion Varne ADDRESS ,_ Stteer or Mailing Address Cltv State ('ntmtJ \ Zm ('Qde

Event Requmng Wmdmg Up (See mstruc:tton& ) The nature of the event requmng wmdmg up IS set forth below {'>elect etthcr "' B C' D orE ) A voluntary dec1ston to wmd up the ent1ty has been approved m the mannet requrred by the Texas Busmess Orgamzat1ons Code and by the govermng documents of the enltl)' DB The penod of duration spectfied m the govermng documents of the enuty has exprred De The occurrence of an event spec1fied m the govemmg documents of the enttty that reqmres the wmdmg up, dtssolutJon, or termmatwn of the entlly DD The occurrence of an event spectfied tn the Texas Busmess Orgaruzanons Code that reqmre~ the wmdmg up, dtssolutton, or termmatton of the entity A court decree requmng the wmdmg up, dtssolutwn, or termmatton ofthe entlt} has been rendered under the provtstons of the Texas Bustness Orgaruzabons Code or other Jaw Completion ofWmdmg Up The fihng entity has comphed wtth the provtstons of the Texas Busmess Organmttlon~ Code govermng tts wmdmg up Supplemental Information Requu·ed For a Nonprofit Corporatum The understgned authom:.ed person actmg on behalf of the named nonprofit corporatiOn certifies that Fmm652 5 121 EXHIBIT 8 ~PAGE 5 OF 6 11/20/2013 12 37 7135211633 SCHULTZ PAGE 04/16

'I Any property of the nonprofit corporation has been transferred, conveyed, apphed, or d!stnbuted 111 accordance w1th chapter 11 and chapter 22 of the Texas Busmess Orgamzat10ns Code There 1s no su1t pendmg agamst the nonprofit corporatiOn or that adequate provisiOn has been made for the satJsfactton of any JUdgment, order or decree that may be entered agamst the nonprofit corporat10n m a pendmg smt If the nonprofit corporation recetved and held property perrmtted to be used only tor chantable rehg1ous, eleemosynary, benevolent, educational, or s1m1lar purposes, bUt the nonprofit corporatiOn d1d not hold the property on a condtt1on requmng return, transfer, or con'l>eyance because of the wmdmg up and termmatton, that the d!Stnbubon of that property has been effeeted m accordance w1th a plan of d1stnbutton adopted m comphaoce wtth the BOC for the d1stnbut1on ot that property Effectiveness of F1hng (Select either A B, or c ) ~Tills document becomes effectJVe when the document ts filed by the secretary of ~tate B D Thts document becomes effe<:ttve at'a later date, whtch IS not more than nmety (90} days from the date of s1gmng The delayed effective date IS C D Tills document takes effect upon the occurrence of the future event or fact, other than the passage of tJme The 90'0 day after the date of s1gmng ts

Execuhon The undersigned stgns th1s document subject to the penalt1es rrnposed by law for the ~ubmtsston of a matena!ly false or fraudulent mstrument and certifies under penalty of perJury that the undersigned IS autbonzed under the provtsJons of law govermng the ent1ty to execute the filmg mstrument

Date By

A person authonz;d by law to ~ecute tht. tHing mo;lrumcm (sec tnsttuctton:s} 1(/eK L /{.4/?'JE{) Prmted or typed name of a.uthonzcd persoQ

Fonn 652 6 122 EXHIBIT 8 - PAGE 6 OF 6 § 22.152. Immunity from Liability, TX BUS ORG § 22.152

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 2. Corporations (Refs & Annos) Chapter 22. Nonprofit Corporations Subchapter D. Members V.T.C.A., Business Organizations Code § 22.152 § 22.152. Immunity from Liability Effective: January 1, 2006 Currentness

The members of a corporation are not personally liable for a debt, liability, or obligation of the corporation.

Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.

V. T. C. A., Business Organizations Code § 22.152, TX BUS ORG § 22.152 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th 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 § 22.221. General Standards for Directors, TX BUS ORG § 22.221

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 2. Corporations (Refs & Annos) Chapter 22. Nonprofit Corporations Subchapter E. Management V.T.C.A., Business Organizations Code § 22.221 § 22.221. General Standards for Directors Effective: January 1, 2006 Currentness

(a) A director shall discharge the director's duties, including duties as a committee member, in good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the corporation.

(b) A director is not liable to the corporation, a member, or another person for an action taken or not taken as a director if the director acted in compliance with this section. A person seeking to establish liability of a director must prove that the director did not act:

(1) in good faith;

(2) with ordinary care; and

(3) in a manner the director reasonably believed to be in the best interest of the corporation.

Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.

V. T. C. A., Business Organizations Code § 22.221, TX BUS ORG § 22.221 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th 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 § 22.235. Officer Liability, TX BUS ORG § 22.235

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 2. Corporations (Refs & Annos) Chapter 22. Nonprofit Corporations Subchapter E. Management V.T.C.A., Business Organizations Code § 22.235 § 22.235. Officer Liability Effective: January 1, 2006 Currentness

(a) An officer is not liable to the corporation or any other person for an action taken or omission made by the officer in the person's capacity as an officer unless the officer's conduct was not exercised:

(1) in good faith;

(2) with ordinary care; and

(3) in a manner the officer reasonably believes to be in the best interest of the corporation.

(b) This section shall not affect the liability of the corporation for an act or omission of the officer.

Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.

V. T. C. A., Business Organizations Code § 22.235, TX BUS ORG § 22.235 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th 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 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612

2015 WL 1778612 Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

Court of Appeals of Texas, Houston (1st Dist.

Kerry Ann Wise, Appellant v. Connie Lou Conklin, Appellee NO. 01–13–00840–CV | Opinion issued April 16, 2015 Synopsis Background: Purchaser filed suit against vendor's former wife, asserting claims for slander of title and tortious interference with contract arising out of wife's refusal to release abstract of judgment that was recorded after vendor sold property to purchaser, and sought declaratory judgment that abstract had no effect against property, and attorney fees. The 157th District Court, Harris County, entered partial summary judgment for purchaser on claim for declaratory relief, but denied request for attorney fees, and entered judgment for wife on tort claims. Purchaser appealed.

Holdings: The Court of Appeals, Terry Jennings, J., held that: [1] abstract judgment recorded after vendor sold real property to purchaser could not have created lien on real property, as required to support claim for slander of title; [2] wife did not willfully and intentionally interfere with purchaser's subsequent attempt to sell house, as required to support claim for tortious interference with contract; and [3] action for declaratory judgment that abstract of judgment “had no force or effect on property,” was one for removal of cloud on property for which attorney fees were not available.

Affirmed.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612

West Headnotes (4)

[1] Appeal and Error Insufficient discussion of objections Purchaser waived claim on appeal challenging legal sufficiency of evidence to support trial court's conclusion that vendor's former wife committed slander of title by recording abstract judgment on property after by challenging only trial court's finding with respect to requisite element that judgment clouded purchaser's title and made it impossible for her to sell property, and by failing to make any argument in her appellate brief as to sufficiency of evidence to support trial court's findings on other four requisite elements.

Cases that cite this headnote

[2] Libel and Slander Actionable words or conduct relating to title Abstract judgment obtained by vendor's former wife and recorded after vendor sold real property to purchaser could not have created lien on real property, as required to support claim against former wife for slander of title arising out of wife's refusal to remove abstract, where purchaser owned property at time abstract was recorded, and wife could not have refused to release lien that did not exist on property.

Cases that cite this headnote

[3] Torts Contracts in general Vendor's former wife did not willfully and intentionally interfere with purchaser's subsequent attempt to sell house, as required to support purchaser's claim for tortious interference with contract, by allegedly refusing to release abstract of judgment recorded after vendor sold property to purchaser; wife's attorney testified that he received calls about abstract of judgment after it was recorded, that he did not understand why callers were asking for release since abstract against husband did not create lien on property that did not belong to him at time abstract was recorded, that he did not release abstract, and that he thought title company, which had refused to issue title policy due to abstract, could make exception, and purchaser admitted that she did not know why wife did not release abstract could not “get into [wife's] mind to know that.”

Cases that cite this headnote

[4] Costs Declaratory judgment Quieting Title Costs

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 Purchaser's action for declaratory judgment that abstract of judgment recorded by vendor's former wife on property after vendor had sold property “had no force or effect on property,” was one for removal of cloud on property presented by abstract of judgment for which attorney fees were not available, where purchaser stated in petition that she filed suit against wife in order to remove cloud from title.

Cases that cite this headnote

On Appeal from the 157th District Court, Harris County, Texas, Trial Court Case No. 2011– 32399 Attorneys and Law Firms Lennon C. Wright, for Kerry Ann Wise.

Kirk W.W. Evans, for Connie Lou Conklin.

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

MEMORANDUM OPINION Terry Jennings Justice *1 Appellant, Kerry Ann Wise, challenges the trial court's judgment, entered after a trial to the court, in favor of appellee, Connie Lou Conklin, in Wise's suit seeking to remove an alleged cloud from a title to real estate and to recover damages for slander of title and tortious interference with a contract. In three issues, Wise contends that the evidence is legally and factually insufficient to support the trial court's judgment and the trial court erred in denying her request for attorney's fees.

We affirm.

Background In her third amended petition, Wise alleged that on or about July 6, 2010, she purchased from Warren Clay Fry a piece of property located at 20210 Pittsford, Katy, Harris County, Texas 77450 (the “Pittsford Property”). In connection with the transaction, Wise performed a title search, which showed that the property was unencumbered. Following her purchase, Wise renovated the Pittsford

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 Property and received an offer to buy the property. As Wise and her buyers prepared to close the transaction, the title company discovered that Fry's ex-wife, Conklin, had filed an Abstract of Judgment against Fry approximately one month after Wise had purchased the Pittsford Property.

According to Wise, the abstract affected her ability to transfer the property to her buyers because it clouded her title. Wise attempted to resolve the title issue with Conklin and her attorney, Patrick O'Fiel. However, Conklin refused to “release the property.” Because of the “cloud on the title,” Wise suffered damages, including loss of a sale, lost business opportunities, lost profits, and expenses in maintaining the property. Wise sought removal of the alleged cloud from the title, damages for slander of title and tortious interference with a contract, and attorney's fees.

At trial, Wise testified that she entered into a contract to purchase the Pittsford Property from Fry for $86,000.00. The title company checked the property's title and determined “there were no encumbrances, no liens, and the property was free and clear.” Fry executed and recorded the deed, which transferred the property to Wise on July 23, 2010. Following her purchase, Wise renovated the Pittsford Property with the help of her construction superintendent, Michael Dunn.

In connection with the renovations, she incurred expenses of $62,104.59, plus $20,500.00 for Dunn's services and expenses. Subsequently, she entered into a contract to sell the property to John Lawrence and Aline Morales Packard for the purchase price of $206,500.00. She stood to make a profit of $37,895.41 on the sale.

Wise, however, could not close the sale with Lawrence and Packard because “the title was ... cloudy” due to the Abstract of Judgment recorded on August 19, 2010 by Conklin. The abstract stated that Conklin had received a judgment against Fry for $375,609.50 on November 12, 2009. 1 *2 Upon learning of the abstract, Wise and Dunn attempted to contact Conklin and O'Fiel to explain their problem with selling the Pittsford Property. Conklin told Wise that “she would do nothing to help.” And O'Fiel told Wise that “he could do nothing” and “his client [Conklin] refused to release the lien.”

On October 26, 2010, Wise wrote a letter to Conklin and O'Fiel explaining that she could not sell the Pittsford Property to Lawrence and Packard because of the “clouded title” and requesting that they “please lift th[e] cloud.” She received no response. On November 29, 2010, Wise's attorney sent, by certified mail to O'Fiel, a letter in which she explained that the abstract “resulted in clouding ... Wise's title to th[e] property” and caused Wise to lose her sale of the property “because the title company refused to issue title insurance.” Wise's attorney requested that Conklin sign a “Partial Release of Abstract of Judgment for ... Wise's property.” O'Fiel did not respond. Wise stated that she did not know why Conklin would not release the abstract and could not “get into [her] mind to know that” but opined that Conklin felt “[r]etaliation against the house” and “anger.”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 In his deposition, O'Fiel testified that, as a result of divorce proceedings between Conklin and Fry, Conklin secured a judgment of approximately $375,000.00 against Fry. Six or seven months after the entry of that judgment, O'Fiel filed the Abstract of Judgment. He subsequently received a telephone call from “somebody” asking about the abstract and for a release of it. O'Fiel looked into the matter, but did not release the abstract. O'Fiel admitted to receiving Wise's personal letter and her attorney's letter, with a proposed Partial Release of the Abstract of Judgment, and stated that he had been notified by “[s]omebody ... claim[ing] that a title company would not issue [a] policy.”

Finally, Lennon Wright, Wise's trial attorney, testified that his rate is $350.00 per hour and Wise had incurred $1,750.00 in reasonable and necessary attorney's fees related to the removal of cloud from title.

The trial court rendered a take-nothing judgment against Wise on her claims for slander of title and tortious interference with a contract. And it issued findings of fact and conclusions of law.

The trial court did not award Wise attorney's fees related to her action to remove a cloud from the title, upon which the court had previously granted Wise summary judgment.

Sufficiency of Evidence In her first issue, Wise argues that the evidence is legally and factually insufficient to support the trial court's finding and conclusion of law that Conklin did not commit slander of title because “[t]he refusal to release a lien created by an abstracted judgment on a homestead which results in a loss of a sale can constitute a slander of title.” In her third issue, Wise argues that the evidence is legally and factually insufficient to support the trial court's conclusion of law that Conklin did not tortiously interfere with her contract to sell the Pittsford Property to Lawrence and Packard because she “entered into a valid earnest money contract for the sale of the property,” Conklin “had actual knowledge of ... the contract that existed between [Wise] and the purchasers [and] ... a clear cut indication about what would happen if she continued to refuse to release the lien,” Conklin's “refusal to release the Abstract of Judgment was the proximate cause of [Wise's] damages,” and Wise “sustained damage” by losing the sale of the property. *3 In an appeal from a judgment rendered after a trial to the court, the trial court's findings of fact have the same weight as a jury's verdict, and we review the legal and factual sufficiency of the evidence supporting them, just as we would review a jury's findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In conducting a legal-sufficiency review, we consider all of the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In determining whether legally sufficient evidence supports the finding under review, we must consider evidence favorable to the finding if a reasonable fact finder could consider it, and disregard evidence

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 contrary to the finding unless a reasonable factfinder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d 343, 348 (Tex.App.–Houston [1st Dist.] 2007, no pet.). In a legal-sufficiency challenge on an issue on which an appellant bears the burden of proof, she must demonstrate that the evidence conclusively established all vital facts to support the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 781 (Tex.App.–Houston [1st Dist.] 2011, no pet.). In reviewing such a matter- of-law challenge, the court employs a two-part test. Reliant Energy, 336 S.W.3d at 781. The court first examines the record for evidence that supports the finding, while ignoring all evidence to the contrary. Dow Chem., 46 S.W.3d at 241; Reliant Energy, 336 S.W.3d at 781. If there is no evidence to support the finding, the reviewing court examines the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem., 46 S.W.3d at 241; Reliant Energy, 336 S.W.3d at 781. If the contrary proposition is established conclusively, the issue is sustained. Dow Chem., 46 S.W.3d at 241; Reliant Energy, 336 S.W.3d at 781.

In conducting a factual-sufficiency review, we review all of the evidence in a neutral light and will reverse only if the evidence supporting the finding is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong or manifestly unjust. SeeDow Chem., 46 S.W.3d at 242; Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

When a party is challenging the factual sufficiency of a finding regarding an issue upon which she had the burden of proof, she must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242; Reliant Energy, 336 S.W.3d at 782.

We review a trial court's conclusions of law as legal questions, de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Although a trial court's conclusions of law may not be challenged for factual sufficiency, we may review the legal conclusions drawn from the facts to determine whether the conclusions are correct. Id. If we determine that a conclusion of law is erroneous, but the trial court nevertheless rendered the proper judgment, the error does not require reversal. Id. Finally, we note that, in a bench trial, the trial court is the sole judge of the witnesses' credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. SeeGolden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Zenner v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex.App.– Houston [1st Dist.] 2012, pet. denied).

Slander of Title [1] Wise asserts that “[t]he refusal to release a lien created by an abstracted judgment on a homestead which results in a loss of a sale constitutes a slander of title” and “[t]here is no question

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 that the abstracted judgment clouded [her] title and made it impossible for her to sell” the Pittsford Property.

To recover in an action for slander of title, a party must allege and prove: (1) uttering and publishing of disparaging words; (2) falsity; (3) malice; (4) special damages; (5) possession of an estate or interest in the property disparaged; and (6) the loss of a specific sale. SeeWilliams v. Jennings, 755 S.W.2d 874, 879 (Tex.App.–Houston [14th Dist.] 1988, writ denied). In her brief, Wise only addresses the last element, loss of a specific sale. Notably absent from her brief is any discussion, analysis, argument, or supporting authorities addressing the other necessary five elements of her slander of title claim. *4 A party that raises a legal-sufficiency challenge to a finding on an issue on which she bears the burden proof must demonstrate that the evidence conclusively establishes all vital facts to support the issue. SeeDow Chem., 46 S.W.3d at 241. And a party challenging the factual sufficiency of a finding regarding an issue on which she has the burden of proof must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. See id. By not offering any discussion, analysis, argument, or supporting authorities related to all of the required elements of her slander of title claim, Wise cannot maintain her legal and factual-sufficiency challenges.

Further, an appellant's brief must 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). A failure to provide substantive analysis of an issue or cite appropriate authority waives the complaint.

SeeRichard v. Cornerstone Constructors, Inc., 921 S.W.2d 465, 469 (Tex.App.–Houston [1st Dist.] 1996, writ denied). Accordingly, we hold that Wise has waived her challenge to the trial court's finding of fact and conclusion of law that Conklin did not commit slander of title. SeeTEX.

R. APP. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (appellate court may deem points of error waived due to inadequate briefing). [2] Moreover, we note that the basis for Wise's slander of title claim is fundamentally flawed.

Wise asserts that Conklin's “refusal to release the lien created by [the] abstracted judgment ... which result[ed] in a loss of a sale” of the Pittsford Property constitutes slander of title. However, the filing of the Abstract of Judgment by Conklin did not place a lien on the Pittsford Property. 2 A properly recorded and indexed abstract of judgment creates a lien on a judgment debtor's real property that is located in the county in which the abstract is recorded and indexed. TEX. PROP.

CODE ANN.. § 52.001 (Vernon Supp. 2014). Thus, once a judgment in favor of a judgment creditor has been secured, the creditor may wish to record an abstract of judgment in order to create a lien to attach to the judgment debtor's real property and to provide notice to subsequent purchasers and encumbrancers of the existence of the judgment against the debtor and the lien. See id.; Noble Mortg. & Invs., LLC v. D & M Vision Invs., LLC, 340 S.W.3d 65, 81 (Tex.App.–Houston

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 [1st Dist.] 2011, no pet.); Olivares v. Bir die L. Nix Trust, 126 S.W.3d 242, 247 (Tex.App.–San Antonio 2003, pet. denied).

Notably, however, the recording and indexing of a judgment creditor's abstract of judgment only impacts real property owned by the judgment debtor. SeeTEX. PROP. CODE ANN.. § 52.001 (duly recorded abstract of judgment “constitutes a lien on the real property of the defendant located in the county in which the abstract is recorded and indexed” (emphasis added)); First State Bank v. Jones, 107 Tex. 623, 183 S.W. 874, 876 (1916); Gaona v. Gonzales, 997 S.W.2d 784, 786 (Tex.App.–Austin 1999, no pet.); Ferguson v. Kuehn, 246 S.W. 674, 675–76 (Tex.Civ.App.– Austin 1922, no writ). In other words, the recording and indexing of an abstract of judgment will not attach a lien to a property unless it is actually owned by the judgment debtor at the time of the abstract's recording. SeeSmith v. Sumeer Homes, Inc., No. 05–11–01632–CV, 2013 WL 2467252, at *3–5 (Tex.App.–Dallas June 6, 2013, pet. denied) (mem. op.); Gamer v. Love, 41 S.W.2d 356, 359 (Tex.Civ.App.–Fort Worth 1931, writ dism'd w.o.j.); Marks v. Bell, 31 S.W. 699, 702 (Tex.Civ.App.–Dallas 1895, writ ref'd); see alsoWestman v. James B. Clow & Sons, Inc., 38 F.2d 124, 125 (W.D.Tex. 1930) (recording of abstract of judgment does not, by itself, create lien); Pacific Fin. Corp. v. Donald, 286 S.W.2d 260, 263 (Tex.Civ.App.–Beaumont 1955, no writ) (when judgment abstracted only after judgment debtor conveyed property to another individual, judgment did not create lien on property). Thus, in order to determine whether an abstract of judgment creates a lien on a particular piece of real property, it is imperative to determine who owned the property at the time the abstract was recorded. SeeGaona, 997 S.W.2d at 786. *5 Here, Conklin's divorce attorney, O'Fiel, testified that as a result of divorce proceedings between Conklin and Fry, the previous owner of the Pittsford Property, Conklin secured a judgment of approximately $375,000.00 against Fry on November 12, 2009. Six or seven months after entry of that judgment, O'Fiel filed the Abstract of Judgment August 19, 2010.

There is no evidence, and Wise does not argue, that she was involved in the Conklin–Fry divorce proceedings or the judgment obtained by Conklin in those proceedings was against anyone other than Fry. Also, it is undisputed that the Abstract of Judgment was not recorded until after Fry had sold the Pittsford Property and Wise had become its owner. Given these circumstances, the Abstract of Judgment could not, as a matter of law, have created a lien on the Pittsford Property or affected it in any way. SeeSmith, 2013 WL 2467252, at *3–5 (abstract of judgment cannot create lien on property not actually owned by judgment debtor at time of recording); Pacific Fin., 286 S.W.2d at 263 (where judgment abstracted after judgment debtor conveyed property to another, judgment did not create lien on property); Gamer, 41 S.W.2d at 359 (abstract of judgment cannot relate back and create lien on property no longer owned by judgment debtor at time of filing); First Nat'l Bank of McAllen v. Moore, 7 S.W.2d 145, 146 (Tex.Civ.App.–San Antonio 1928, writ dism'd w.o.j.) (where judgment obtained in suit in which individual not party, recording of abstract of judgment cannot affect individual's title to property); Ferguson, 246 S.W. at 675–76 (abstract

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 of judgment does not create lien on property of individual not defendant in suit); Marks, 31 S.W. at 702 (recording and indexing abstract of judgment does not create lien on property not owned by judgment debtor at time of recording); see alsoWestman, 38 F.2d at 125 (recording of abstract of judgment does not, by itself, create lien).

Further, because Conklin's Abstract of Judgment did not create a lien on the Pittsford Property, Conklin could not have been required to release a lien that did not exist or the Abstract of Judgment, which did not name Wise or pertain to the Pittsford Property. SeeLeslie v. W. Steel Co., 202 F.Supp. 27, 28 (S.D.Tex. 1962) (applying Texas law and explaining, “[t]he holder of a judgment has an inherent right to have h[er] judgment abstracted and recorded, and there is no duty of the holder of such judgment to issue any release to parties owning land who are not mentioned in said abstract judgment”). While it is unfortunate that the title company, utilized by Wise and her buyers for the attempted sale of the Pittsford Property, did not understand that the Abstract of Judgment had no effect on the Pittsford Property, blame cannot be placed on Conklin for this misunderstanding.

We overrule Wise's first issue.

Tortious Interference [3] Wise next asserts that she “has satisfied each required element” of her claim for tortious interference with a contract.

To establish a cause of action for tortious interference, a plaintiff must prove that (1) a contract subject to interference exists; (2) the defendant committed a willful and intentional act of interference with the contract; (3) the act proximately caused injury; and (4) the plaintiff sustained actual damages or loss. ACS Invs., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). Because it is dispositive, we focus on Conklin's alleged willful and intentional act of interference. *6 Interference is tortious only if it is intentional. SeeSouthwestern Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992). The intent required is the intent to interfere, not just intent to do the particular act done. See id. To establish a willful and intentional act of interference, there must be evidence that a party was more than a willing participant; it must knowingly induce one of the contracting parties to breach its obligations. SeeBrowning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993); Funes v. Villatoro, 352 S.W.3d 200, 213 (Tex.App.–Houston [14th Dist.] 2011, pet. denied).

Here, Wise asserts that “the evidence is convincing that [she] made clear to Conklin and her attorney that she was going to lose the sale of the Pittsford [Property], which was under contract, if the property was not released from the abstract .... [and] Conklin acted maliciously towards her by intentionally refusing to execute a release of lien on property to which [Conklin] had no right, title or interest.”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612

The evidence presented at trial, however, does not establish that Conklin acted with the requisite intent in refusing to release the Abstract of Judgment. O'Fiel, Conklin's divorce attorney, testified that he filed the Abstract of Judgment six or seven months after Conklin had obtained a judgment against Fry. He subsequently received a call from “somebody” asking about the abstract and whether he would release it. O'Fiel ultimately did not “take any actions to release the Abstract of Judgment” and did not “intend[ ] to release [it].” As he explained: After I realized that the abstract was filed after [Fry] sold [the Pittsford Property], it didn't really make a whole lot of sense of why somebody would need a release of an abstract that doesn't affect the property. It just didn't make any sense.... I didn't know the details. All I know is I get calls from these people that I've never met before that have never had any involvement with me stating that they want something that I couldn't understand why they needed it, because it didn't affect their property anymore.

Although O'Fiel stated that he had been notified by “somebody ... claim[ing] that a title company would not issue [a] policy,” he noted that he thought the title company could make “an exception” and he did not know “how far they [went] with the policy.” Further, “[a]fter [his] conversation with the title company, [he did not] recall any other communications with them,” therefore, as far as he knew, “they could have figured out a way” around the alleged title problem. We hold that O'Fiel's testimony does not establish a willful and intentional act of interference with a contract by Conklin.

Further, we note that Wise did not call Conklin as a witness, and Wise, herself, testified that she did not know why Conklin did not release the Abstract of Judgment and could not “get into [Conklin's] mind to know that.” This evidence does not show a “willful and intentional act of interference.”

SeeACS Invs., 943 S.W.2d at 430.

We conclude that the trial court correctly applied the law to the facts of the case. Accordingly, we hold that the trial court did not err in concluding that Conklin did not tortiously interfere with Wise's contract. SeeBMC Software, 83 S.W.3d at 794.

We overrule Wise's third issue.

Attorney's Fees [4] In her second issue, Wise argues that the trial court erred in not awarding her attorney's fees because she “filed this suit as a Declaratory Judgment action in order to remove the cloud on the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 title” and “is only asking for attorney's fees for the removal of the cloud, not for the action for damages.” Wise asserts that her attorney “testified during the trial of this case that the sum of $1,750 was a reasonable and necessary fee for removal of the cloud” and “[t]his testimony was not refuted or questioned in any manner.” *7 The Uniform Declaratory Judgment Act (“UDJA”) “entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Indian Beach Prop. Owners' Ass'n v. Linden, 222 S.W.3d 682, 706 (Tex.App.–Houston [1st Dist.] 2007, no pet.); see alsoTEX. CIV. PRAC. & REM. CODE ANN.. § 37.009 (Vernon 2008) (“In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.”). Because the grant or denial of attorney's fees is within the sound discretion of the trial court, its judgment will not be disturbed on appeal in the absence of a clear showing that it abused its discretion. Oake v. Collin Cnty., 692 S.W.2d 454, 455 (Tex. 1985); Indian Beach Prop., 222 S.W.3d at 706.

A trial court does not abuse its discretion if some evidence reasonably supports its decision.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); Indian Beach Prop., 222 S.W.3d at 706. A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles. Bocquet, 972 S.W.2d at 21; Indian Beach, 222 S.W.3d at 706. We presume that the trial court acted within the bounds of discretion unless the record shows the contrary. Sanchez v. AmeriCredit Fin. Servs., Inc., 308 S.W.3d 521, 526 (Tex.App.– Dallas 2010, no pet.); Beard v. Endeavor Natural Gas, L.P., No. 01–08–00180–CV, 2008 WL 5392026, at *8 (Tex.App.–Houston [1st Dist.] Dec. 19, 2008, pet. denied) (mem. op.). Here, the trial court did not reveal the basis for its denial of attorney's fees; therefore, we may uphold its ruling on any basis supported by the evidence. Beard, 2008 WL 5392026, at *8. It is Wise's burden to bring a record showing that the trial court abused its discretion. SeeSimon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

In her petition, Wise labeled her suit to remove “cloud” from the Pittsford Property's title as a declaratory judgment action, and she sought a declaration that “the abstract of [judgment had] no force and effect against” the property. Wise moved for partial summary judgment on this claim, which the trial court granted. She did not move for summary judgment on her attorney's fees claim.

At trial, Wright, Wise's attorney, testified that his rate is $350.00 per hour and he incurred a total of $1,750.00 in reasonable and necessary attorney's fees related to the removal of cloud from title.

Although Wise asserts that she is entitled to attorney's fees under the UDJA, “[a] declaratory judgment action may not be used solely to obtain attorney's fees that are not otherwise authorized by statute or to settle disputes already pending before a court.” Southwestern Guar. Trust Co. v.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612 Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 956 (Tex.App.–Houston [1st Dist.] 1998, pet. denied). Here, an examination of the pleadings reveals that Wise's declaratory-judgment action is, in reality, a suit to remove a cloud from a title.

A suit to clear title or quiet title—also known as a suit to remove cloud from title ... exists “to enable the holder of the feeblest equity to remove from his way to legal title any unlawful hindrance having the appearance of better right.” ...The effect of a suit to quiet title is to declare invalid or ineffective the defendant's claim to title.

Essex Crane Rental Corp. v. Carter,371 S.W.3d 366, 388 (Tex.App.–Houston [1st Dist.] 2012, pet. denied) (internal citations omitted); see alsoVernon v. Perrien, 390 S.W.3d 47, 61–62 (Tex.App.– El Paso 2012, pet. denied) (explaining suit to remove cloud from title). Wise states in her petition that she “brings this action against the [d]efendant to remove the cloud, so that she may sell it in the future.” And the trial court in its judgment determined “that the Abstract of Judgment ... has no force and effect as to” the Pittsford Property. We conclude that Wise's suit is one to remove a cloud from a title. *8 “Attorney's fees are not available in a suit to quiet title or to remove cloud on title.”

Southwestern Guar. Trust, 981 S.W.2d at 956. And the UDJA cannot be used to “supplant [such a suit] by allowing attorney's fees under these circumstances.”Id.; see alsoSani v. Powell, 153 S.W.3d 736, 746 (Tex.App.–Dallas 2005, pet. denied) (“In substance Powell's claim for declaratory relief is a claim to quiet title.... We conclude ... that Powell was not entitled to an award of attorney's fees under the [UDJA].”); DAS Inv. Corp. v. Nowak, No. 01–02–00140–CV, 2004 WL 396983, at *2–3 (Tex.App.–Houston [1st Dist.] Mar. 4, 2004, no pet.)(mem. op.) (where counterclaim alleged liens were clouds on title and were unenforceable and prevented defendants from having good and marketable title to property, defendants could not recover attorney's fees under UDJA because claim was one to quiet title); Kennesaw Life & Acc. Ins. Co. v. Goss, 694 S.W.2d 115, 117–18 (Tex.App.–Houston [14th Dist.] 1985, writ ref'd n.r.e.) (UDJA could not be used to recover attorney's fees for a suit brought to remove cloud from title). Accordingly, we hold that the trial court did not abuse its discretion by failing to award Wise her attorney's fees.

We overrule Wise's second issue.

Conclusion We affirm the judgment of the trial court.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Wise v. Conklin, Not Reported in S.W.3d (2015) 2015 WL 1778612

All Citations Not Reported in S.W.3d, 2015 WL 1778612

Footnotes SeeTEX. PROP. CODE ANN.. § 52.003(a) (Vernon Supp. 2014) (abstract of judgment must contain names of plaintiff and defendant; defendant's birthdate; last three numbers of defendant's driver's license; last three numbers of defendant's social security number; number of suit in which judgment was rendered; defendant's address; date on which judgment was rendered; amount of judgment; and rate of interest specified in judgment).

2 In fact, Wise's counsel admitted at trial that Conklin “didn't file a lien on the Pittsford Property.... She just filed the abstract.”

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. 13 McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009) 2009 WL 1635310

2009 WL 1635310 Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION Court of Appeals of Texas, Houston (1st Dist.).

Willie McGLOWN, Jr., Appellant v. ASHFORD PARK HOMEOWNERS ASSOCIATION, INC., Appellee.

No. 01-08-00619-CV. | June 11, 2009.

West KeySummary

1 Judgment Banks, Corporations and Associations A trial court erred in granting summary judgment for a homeowners' association in the association's action against one of its property owners for the owner's failure to timely pay assessments levied against him where contested issues remained for trial. As proof of actual damages, the association provided an affidavit from its records custodian who stated that “[t]he account reflecting the maintenance charges and costs of collection assessed against [the owner's] property is attached hereto as Exhibit 1.” However, Exhibit 1 was not attached to the record custodian's affidavit and was not included with the association's motion for summary judgment. In addition, none of the requests for admission asked the owner to admit the amount of actual damages sought by the association.

Cases that cite this headnote

On Appeal from County Civil Court at Law No. 2, Harris County, Texas, Trial Court Cause No. 872089.

Attorneys and Law Firms Althea M. Bailey, for Willie McGlown, Jr. Christopher A. Kesler, Walter Edward Spears, for Ashford Park Homeowners Association, Inc. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009) 2009 WL 1635310

Panel consists of Justices KEYES, HANKS, and BLAND.

MEMORANDUM OPINION JANE BLAND, Justice. *1 Ashford Park Homeowners' Association, Inc. (the Association) sued one of its property owners, Willie McGlown, Jr., for his failure to timely pay assessments levied against him. The trial court granted the Association's motion for summary judgment, and awarded actual damages and attorney's fees. McGlown, proceeding pro se, appeals, contending that the trial court erred in granting summary judgment because contested issues remain for trial. We agree and reverse.

Background The Association Declaration of Covenants, Conditions, and Restrictions (declaration) of Ashford Park requires each lot owner to pay assessments imposed by the board of directors of the Association. The declaration, as well as Texas statute, allows the Association to charge a lot owner interest, late charges, costs, and reasonable attorney's fees if that owner does not timely pay an assessment. The declaration also reserves to the Association a continuing lien against the lot to secure any outstanding assessments. According to the Association's pleadings, McGlown failed to pay his homeowners' assessment, amounting to more than $2,144.75, including interest, costs, and attorney's fees.

The Association sent a request for admissions of fact to McGlown by certified and first class mail on or about October 13, 2006. The certified mail was returned unclaimed; the first-class mail was not returned. The record reveals that, while McGlown still had legal representation, his counsel sought to undo the deemed admissions through a motion to strike, but the record does not contain any ruling on that motion.

In December 2006, the Association moved for summary judgment based on the deemed admissions, an affidavit from the Association's records custodian, and an attorney's fees affidavit executed by its own attorney. In his response, McGlown challenged the validity of the deemed admissions, provided a copy of correspondence showing that he had sent a $457.00 check to the Association representing the amount of the assessment plus late fees before receiving a demand letter for $3,646.90, and challenged the reasonableness of the attorney's fees sought.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009) 2009 WL 1635310 On April 8, 2008, the trial court granted summary judgment in favor of the Association, and awarded $1,372.50 in damages and $5,000 in attorney's fees, as well as fees for defense of the judgment on appeal and pre- and post-judgment interest. On May 8, 2008, McGlown filed his “Objections to Judgment,” in which he contended that the trial court erred in granting the attorney's fees award and that fact issues existed concerning whether the Association had agreed to accept the tendered payment, and requested that the judgment be reversed and that “[he] be given [his] day in court.”

Discussion Standard of Review McGlown has asserted a general complaint that the trial court erred in granting summary judgment.

See Malooly Bros. Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In a traditional motion for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that the trial court must grant a judgment as a matter of law. TEX.R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We review the evidence in a light favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215;Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). *2 Summary judgments must stand on their own merits. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The nonmovant has no burden to respond to a traditional summary judgment motion unless the movant conclusively establishes its cause of action. See id.;Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also Grace v. Titanium Electrode Prods., Inc., 227 S.W.3d 293, 297 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

Did the Association meet its burden of proof?

The Association's claim against McGlown is essentially one for breach of the declaration. To prove a breach of contract cause of action, the plaintiff bears the burden to show (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. Valero Mkt'g & Supply Co. v. Kalama Int'l, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist.] 2001, no pet.). McGlown admits that he failed to timely pay the 2006 assessment owed to the Association under the declaration.

We examine, then, whether the Association conclusively proved actual damages and attorney's fees as required to satisfy its summary judgment burden.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009) 2009 WL 1635310

Proof of actual damages As proof of actual damages, the Association provided with its summary judgment motion an affidavit from its records custodian, who, after making recitals to satisfy the evidentiary rule for business records, declared that “[t]he account reflecting the maintenance charges and costs of collection assessed against [McGlown's] property is attached hereto as Exhibit ‘1.’ “ Exhibit 1, however, is not attached to the record custodian's affidavit, and was not included with either the original or amended motion for summary judgment. In addition, we have reviewed the requests for admission and none ask McGlown to admit the amount of actual damages sought by the Association. Aside from the reference to the omitted Exhibit 1 accounting, no evidence supports the amount of actual damages awarded in the summary judgment. Resolving all doubts against the Association, therefore, we hold that it failed to meet its summary judgment burden on damages because it did not submit competent proof of them. SeeTEX.R. CIV. P. 166a(c).

Proof of attorney's fees Next, we consider whether the Association's evidence supports the attorney's fees award. As a general rule, the party seeking to recover attorney's fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). Chapter 38 of the Texas Civil Practice and Remedies Code, which the Association invoked here, affords the party seeking fees the presumption that the usual and customary fees for the eligible claim are reasonable. TEX. CIV. PRAC. & REM.CODE ANN. §§ 38.001, 38.003 (Vernon 2008). This presumption, however, is subject to rebuttal, and McGlown has challenged the reasonableness of the Association's fee demand. SeeTEX. CIV. PRAC. & REM.CODE ANN . § 38.003. In reviewing the reasonableness of an attorney's fees award, the court considers: *3 (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009) 2009 WL 1635310

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04). The amount of attorney's fees sought also must bear some reasonable relationship to the amount in controversy. USAA County Mut. Ins. Co. v. Cook, 241 S.W.3d 93, 103 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Although proof of the number of hours and corresponding hourly rate are not necessarily required, the trial court generally relies on evidence of hours expended and the attorney's stated hourly rate to determine whether the requested fee is reasonable for the nature and extent of the services performed. McGee v. Deere & Co., No. 03-04-00222-CV, 2005 WL 670505, *4 (Tex.App.-Austin Mar. 24, 2005, pet. denied) (mem.op.) (citing Collins v. Guinn, 102 S.W.3d 825, 836 (Tex.App.-Texarkana 2003, pet. denied)).

In this case, the Association's own attorney executed the attorney's fees affidavit in support of its summary judgment motion. Uncontroverted testimony of an interested witness will establish attorney's fees sought are reasonable and necessary as a matter of law if (1) the testimony could readily be contradicted if untrue; (2) the testimony is clear, direct, and positive; and (3) there are no circumstances tending to discredit or impeach the testimony.Rosenblatt v. Freedom Life Ins.

Co. of Am., 240 S.W.3d 315, 321 (Tex.App.-Houston [1st Dist.] 2007, no pet.)(citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)).

The Association's attorney describes his professional experience and itemizes activities he identifies as “the services that are necessary to handle a collection matter which is similar in nature to the above-entitled and numbered cause.”The attorney avers that “the total amount of attorney's fees and expenses incurred by Ashford Park Homeowners Association, Inc. in the prosecution of this lawsuit is $7,620.00,” and, after reciting the reasonableness factors, opines that such sum “is a reasonable attorney's fee and is in accordance with the attorney's fees normally and customarily charged in litigation of the type now before the Court.” *4 This affidavit does not satisfy the Association's summary judgment burden. First, the affidavit does not identify the services actually performed on behalf of the Association in this lawsuit, itemize the hours expended, or identify the attorney's hourly rate. The absence of these objective criteria prevents the affidavit from being readily controvertible.

Second, controverting evidence before the trial court bars summary judgment on the Association's attorney's fees claim. In his response, McGlown challenged the reasonableness of the Association's fee request with evidence that (1) he tendered a $457.20 check for payment of his dues, plus late charges, before he was served with any documents from an attorney, including the Association's demand letter, (2) the Association delayed in opening the mail containing the tendered check for

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009) 2009 WL 1635310 several days, and (3) after an additional delay, the Association returned the check and demanded the sum of $3,646.90.

The trial court's judgment awards only $5,000.00 in fees, less than the amount sought by the Association. It reflects that the trial court was duly concerned about the issue, but the court was not authorized to make a fact finding at this stage. See Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 (Tex.App.-Houston [1st Dist.] 2001, no pet.). (holding that, when summary judgment record contains evidence contesting reasonableness of the attorney's fees requested, trial court may not resolve issue on summary judgment); see also Rosenblatt, 240 S.W.3d at 321. Accordingly, we reverse the trial court's summary judgment on the attorney's fee award.

Conclusion The Association failed to meet its summary judgment burden to conclusively prove the amount of actual damages and its reasonable and necessary attorney's fees. We therefore reverse the judgment and remand the cause for trial.

All Citations Not Reported in S.W.3d, 2009 WL 1635310 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. 6