Templeton Mortgage Corporation v. Gary M. Poenisch ( 2015 )

ACCEPTED
04-15-00041-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/21/2015 3:30:40 PM
KEITH HOTTLE
CLERK
CAUSE NO. 04-15-00041-CV
_______________________________________________________
FILED IN
4th COURT OF APPEALS
IN THE SAN ANTONIO, TEXAS
05/21/2015 3:30:40 PM
FOURTH COURT OF APPEALS KEITH E. HOTTLE
Clerk
SAN ANTONIO, TEXAS
___________
TEMPLETON MORTGAGE COMPANY
Appellant
V.
GARY M. POENISCH
Appellee
___________
On appeal from the 216th District Court of Kendall County, Texas
APPELLANT’S BRIEF
Respectfully Submitted,
LAW OFFICE OF KEITH C. THOMPSON,
P.C.
11003 Quaker Avenue
Lubbock, Texas 79424
Telephone: (806) 783-8322
Facsimile: (806) 783-8357
Email: kct@kctlaw.us
By: /s/ Keith C. Thompson
Keith C. Thompson
SBN: 24013631
ATTORNEY FOR APPELLANT/DEFENDANT
ORAL ARGUMENT IS REQUESTED
IDENTITY OF PARTIES AND COUNSEL
TEMPLETON MORTGAGE COMPANY
Represented by:
Keith C. Thompson
Law Office of Keith C. Thompson, P.C.
11003 Quaker Avenue
Lubbock, Texas 79424
Telephone: (806) 783-8322
Facsimile: (806) 783-8357
Email: kct@kctlaw.us
APPELLANT
GARY M. POENISCH
Represented by:
Gary M. Poenisch, P.L.L.C.
206 E. Locust Street, Suite 218
San Antonio, Texas 78212
Telephone: (210) 212-6700
Telecopier: (210) 212-2178
APPELLEE
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES ............................................................................................iii
STATEMENT OF THE CASE ..........................................................................................v
STATEMENT REGARDING ORAL ARGUMENTS ...........................................................vi
ISSUES PRESENTED FOR REVIEW ...............................................................................vi
STATEMENT OF FACTS ...............................................................................................1
SUMMARY OF THE ARGUMENT ...................................................................................2
ARGUMENT AND AUTHORITIES ..................................................................................3
I. This Court should reverse the decision of the 216th District Court of
Kendall County because it abused its discretion by granting default
judgment against Templeton Mortgage Company since it was deprived
of due process. ................................................................................................3
A. Standard of review is abuse of discretion. ................................................3
B. TMC’s right to due process was violated because it did not receive
45 days notice of the default judgment hearing, as such, the hearing
was void and default judgment was improper. ..........................................4
i. TMC did not receive the required 45 days notice for trial settings,
so the hearing and all actions during the hearing are void. ..................6
C. The notice served on TMC was defective and thus, the default
judgment hearing was void. ......................................................................7
CONCLUSION AND PRAYER ........................................................................................8
CERTIFICATE OF SERVICE .........................................................................................10
CERTIFICATE OF COMPLIANCE .................................................................................11
APPENDICES .............................................................................................................12
ii
INDEX OF AUTHORITIES
CASE LAW
Armstrong v. Mazano,
380 U.S. 545 (1965) ........................................................................................4
Bradford v. Bradford,
971 S.W.2d 595 (Tex. App.—Dallas 1998, no pet.) .......................................4
Coastal Banc SSB v. Helle,
48 S.W.3d 796 (Tex. App.—Corpus Christi, 2001 pet. denied) .....................4
Craddock v. Sunshine Bus Lines, Inc.,
133 S.W.2d 124 (Tex. 1939) ...........................................................................3
Delgado v. Hernandez,
951 S.W.2d 97 (Tex. App.—Corpus Christi 1997, no writ) ...........................4
Fishing Publ’n Inc. v. Williams,
661 S.W.2d 323 (Tex. App.—Corpus Christi 1982, no writ) .........................5
In re $475.001.16,
96 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2002, no pet.).....................4
LBL Oil Co. v. Int’l Power Servs., Inc.,
777 S.W.2d 390 (Tex. 1989) ......................................................................4, 5
Lopez v. Lopez,
757 S.W.2d 721 (Tex. 1988) ...........................................................................3
Mabon Ltd. v. Afri-Carib Enters., Inc.,
369 S.W.3d 809 (Tex. 2012) .......................................................................3, 5
Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306 (1950) ........................................................................................5
Peralta v. Heights Med. Ctr. Inc.,
485 U.S. 80 (1988) ..........................................................................................3
iii
Perkins v. City of San Antonio,
293 S.W.3d 650 (Tex. App.—San Antonio 2009, no pet.) .............................5
RULES
TEX. R. CIV. P. 21 ...........................................................................................2, 5, 7, 8
TEX. R. CIV. P. 245 .............................................................................................5, 6, 8
iv
STATEMENT OF THE CASE
This is a suit involving a dispute over real property. The primary dispute
arose between Michael Middleton and Templeton Mortgage Company. Gary M.
Poenisch intervened against Templeton Mortgage Company. The issue on appeal
is whether the trial court abused its discretion by granting default judgment in
favor of Poenisch when Templeton Mortgage Company was deprived of due
process by not receiving the proper notice of the hearing on default judgment.
The Honorable Bill Palmer of the 216th District Court of Kendall County,
Texas, presided over the trial. Judge Palmer signed the Order Setting Hearing on
October 10, 2015. (Order Setting Hearing). The Certificate of Service was sent on
October 9, 2015. (Certificate of Service). Templeton Mortgage Company had
previously appeared in other proceedings of the trial, but the trial court struck all of
their pleadings at the hearing on default judgment. (Default Judgment Order, p. 1).
The trial court granted default judgment in favor of Poenisch and against
Templeton Mortgage Company on all of Poenisch’s claims. Templeton Mortgage
Company now appeals.
v
STATEMENT OF ORAL ARGUMENTS
Appellant hereby requests the opportunity to present this matter by oral
argument.
ISSUE PRESENTED FOR REVIEW
Did the trial court err by granting default judgment for Poenisch when
Templeton Mortgage Company was deprived of due process by not receiving the
proper 45 day notice of the hearing on default judgment?
vi
STATEMENT OF FACTS
Michael Middleton (“Middleton”) sued Templeton Mortgage Company
(“TMC”) for reasons unrelated to this appeal. TMC appeared in the proceedings.
Gary M. Poenisch (“Poenisch”) intervened and asserted claims against TMC. TMC
found itself without an attorney, and on August 18, 2014 the trial court gave TMC
a certain amount of days to find an attorney. TMC did not find an attorney to
represent the company. Poenisch filed a Motion to Enter Default Judgment and
Request for Severance.
A hearing on the Motion for Default Judgment and Request for Severance
was scheduled for October 15, 2014. (Order Setting Hearing). The Honorable Bill
Palmer signed the Order Setting Hearing on October 10, 2014. (Order Setting
Hearing). The Certificate of Service, however, was dated October 9, 2014. (Order
Setting Hearing).
Prior to the hearing on the default judgment, TMC’s pleadings were not
struck. There is no previous order striking the pleadings filed in this matter. At the
October 15 hearing, the court struck TMC’s pleadings because TMC did not find
an attorney to represent the company. (Default Judgment Order, p. 1). The court
struck TMC’s pleadings even though TMC appeared through an attorney at earlier
proceedings. (Default Judgment Order, p. 1).
1
After striking TMC’s prior pleadings, the court entered default judgment in
favor of Poenisch (Default Judgment Order p. 1). Specifically, the court ruled the
deeds held by TMC were null and void, and TMC never owned the real property,
which was the subject of the suit. (Id. at p. 1–2). The court also awarded Poenisch
attorney fees against TMC. (Id. at p. 2).
SUMMARY OF THE ARGUMENT
The trial court abused its discretion by granting default judgment in favor of
Poenisch because TMC was deprived of due process when TMC was not properly
noticed of the hearing on default judgment. TMC should have received notice of
the hearing at least 45 days in advance because it was a dispositive hearing.
Without proper notice, the hearing was a violation of due process and, as such, was
void. Because the hearing was void, the court abused its discretion by striking
TMC’s pleadings and granting default judgment in favor of Poenisch.
Further, the Certificate of Service and the Order Setting Hearing were
facially invalid and did not comply with TEX. R. CIV. P. 21(d). The Order Setting
Hearing was signed on October 10, 2014, but the Certificate of Service was sent on
October 9, 2014. Even if the incorrect date was a minor clerical error, the 45 day
requirement was not met.
Thus, the Default Judgment Order was improper and this Court should
reverse the judgment of the trial court.
2
ARGUMENT AND AUTHORITIES
I. This Court should reverse the decision of the 216th District Court of
Kendall County because it abused its discretion by granting default
judgment against Templeton Mortgage Company since it was deprived
of due process.
A. Standard of review is abuse of discretion.
A default judgment should be set aside and a new trial granted if the
defendant can show (1) its failure to answer before judgment was not intentional or
the result of conscious indifference, but due to mistake or accident; (2) the
defendant has a meritorious defense; and (3) the granting of a new trial will not
cause delay or otherwise cause injury to the plaintiff. Craddock v. Sunshine Bus
Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). However, where a defendant has
previously appeared, and does not receive proper notice of a trial, the defendant is
denied its due process rights of the Fourteenth Amendment and default judgment is
improper. Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex.
2012). Further, where notice is not received, the defendant is not required to show
a meritorious defense. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988). A
requirement to show a meritorious defense violates the defendant’s right to due
process of law. Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80, 84 (1988). Also,
the lack of notice renders a showing of accident or mistake on the part of the
defendant unnecessary. See Mabon, 369 S.W.3d at 813. Thus, a judgment entered
without notice to the defendant is constitutionally infirm. Id.
3
B. TMC’s right to due process was violated because it did not receive 45
days notice of the default judgment hearing, as such, the hearing was
void and default judgment was improper.
Since TMC did not receive the required 45 days notice of the default
judgment hearing, TMC’s right to due process was violated, so the proceedings of
the hearing are void and default judgment was not appropriate.
A trial setting is any trial or hearing that is dispositive of the case. LBL Oil
Co. v. Int’l Power Services, Inc., 777 S.W.2d 390, 391 (Tex. 1989); In re
$475,001.16, 96 S.W.3d 625, 627–628 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). Default judgment hearings are trial settings because they are dispositive of
the case, in that the claims are fully and finally decided in favor of one party or the
other. See Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex. App.—Dallas 1998,
no pet.) (citing LBL Oil, 777 S.W.2d at 391); Coastal Banc SSB v. Helle, 48
S.W.3d 796, 801 (Tex. App.—Corpus Christi 2001, pet. denied). If a party has
previously appeared in trial proceedings, that party is entitled to notice of the trial
setting as a matter of due process. Delgado v. Hernandez, 951 S.W.2d 91, 99 (Tex.
App.—Corpus Christi 1997, no writ). Failure to give notice of a trial setting
deprives the defendant of the opportunity to be present at the hearing, voice
objections, and argue his position to the judge. Id.; Coastal Banc, 48 S.W.3d at
801. Depriving a party of the opportunity to present their case at trial is a
deprivation of fundamental requirements of due process. Armstrong v. Manzo, 380
4
U.S. 545, 550 (1965); see also Mullane v.Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950).
In Texas, notice of trial settings and hearings are governed by TEX. R. CIV.
P. 245, which states a defendant must be given at least 45 days notice of a setting
for trial. Under TEX. R. CIV. P. 21(b), however, notice of a hearing must be served
upon all parties at least three days before the date of the hearing. Although these
rules seemingly conflict, Rule 21 does not apply to trial settings. Perkins v. City of
San Antonio, 293 S.W.3d 650, 654 (Tex. App.—San Antonio 2009, no pet.) (citing
Fishing Publications, Inc. v. Williams, 661 S.W.2d 323, 325 (Tex. App.—Corpus
Christi 1982, no writ)). When a party has previously appeared an “[e]ntry of a
post-answer default judgment against a defendant who did not receive notice of the
trial setting or dispositive hearing constitutes a denial of due process under the
Fourteenth Amendment of the United States Constitution.” Mabon Ltd. v. Afri-
Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex. 2012) (citing LBL Oil, 777
S.W.2d at 390–91).
Here, the default judgment hearing was a trial setting because default
judgments are dispositive of the case. Templeton had previously appeared in the
action and answered the original proceeding against Middleton. Default Judgment
Order p. 1. Poenisch intervened and filed a Motion to Enter Default Judgment,
which the trial judge signed on October 10, 2014. Order Setting Hearing p. 1. The
5
hearing on default judgment was set for October 15, 2014. Id. The Order Setting
Hearing was served on TMC on October 9, 2014. Certificate of Service. Prior to
the October 15, 2014 hearing, TMC’s pleadings were never struck.
As a trial setting, TEX. R. CIV. P. 245 requires 45 day notice be given rather
than 3 days notice. To meet this requirement TMC should have received notice of
the hearing by August 31, 2014 at the latest. TMC received the notice on October
9, 2014, just seven days before the hearing on default judgment. This notice
violated TEX. R. CIV. P. 245, and the violation deprived TMC of its right to due
process because TMC did not have the opportunity to be present at the hearing, to
voice its objections, and to present its case before the court. While TMC did not
retain an attorney, this is not grounds to deprive TMC of due process.
The actions of the trial court were a clear abuse of discretion because TMC
was not properly noticed and was deprived of due process. As such, the October
15 hearing was void, and all actions and rulings made during the hearing are also
void. This abuse of discretion constitutes reversible error.
i. TMC did not receive the required 45 days notice for trial settings,
so the hearing and all actions during the hearing are void.
TMC’s right to due process was violated when TMC did not receive 45 days
notice of the default judgment hearing. Hence, the hearing was void, and all
actions and decisions the trail court made at the hearing constitute an abuse of
discretion.
6
The trial court’s main action at the hearing was to strike all TMC’s previous
pleadings. Trial Transcript p. 4 lines 20–23. Prior to the default judgment hearing,
TMC’s pleadings had never been struck. The only way the trial court could grant a
default judgment was to strike TMC’s pleadings. Since the default judgment
hearing was void, striking TMC’s pleadings was wrong, and thus default judgment
was not appropriate. The default judgment resulted in an incorrect ruling against
TMC. The default judgment wrongly granted relief to Poenisch, declared TMC’s
Substitute Trustee’s Deed and the Deed of Trust invalid, and allowed Poenisch to
recover attorney fees from TMC. Default Judgment Order p. 1.
The default judgment hearing, without proper notice, deprived TMC of due
process. Thus, the hearing was void. Because the hearing was void, TMC’s
pleadings should not have been struck. As result, default judgment was improper.
This Court should reverse the default judgment because the trial court abused its
discretion when it violated TMC’s right to due process.
C. The notice served on TMC was defective and thus, the default
judgment hearing was void.
The certificate of service did not comply with TEX. R. CIV. P. 21(d) because
the date of service was incorrect.
Texas Rule of Civil Procedure 21(d) governs the certificate of service
required on all motions, pleadings, and applications to the court. TEX. R. CIV. P.
21(d). Under Rule 21(d) the “party or attorney of record, must certify to the court
7
compliance with this rule in writing over signature on the filed pleading plea,
motion, or application.” Id.
Here, the Certificate of Service sent by Poenisch’s counsel was facially
invalid because the corresponding dates from the Order Setting Hearing and the
Certificate of Service are incompatible. The trial judge signed the Order Setting
Hearing on October 10, 2014. The Certificate of Service, however, was sent on
October 9, 2014. The Certificate of Service states that it accompanies “a true and
correct copy” of the Order Setting Hearing. The trial judge could not have signed
the Order Setting Hearing after the Certificate of Service was sent. So the
Certificate of Service is either not true or not correct. Even if the incorrect date was
a minor clerical error, the notice still violated TMC’s due process because the
notice did not meet the 45 day requirement.
Thus, the Certificate of Service and Order Setting Hearing were facially
invalid. As such, notice to TMC was invalid because the 45 day requirement was
not met, as such the October 15 hearing was void and default judgment was
improper.
CONCLUSION AND PRAYER
TMC did not receive the proper 45 day notice of the default judgment hearing
required by TEX. R. CIV. P. 245. The failure to comply with this requirement
resulted in the deprivation of TMC’s right to due process. As such, the hearing was
8
void and all actions, findings, and rulings of the trial court are null and void. Thus,
the trial court abused its discretion when it wrongfully struck TMC’s prior
pleadings, and improperly granted default judgment to Poenisch.
WHEREFORE, PREMISES CONSIDERED TMC respectfully requests that this
Court reverse the judgment of the trial court, and grant all other relief to which
TMC is justly entitled both at law and equity.
Respectfully Submitted,
LAW OFFICE OF KEITH C. THOMPSON,
P.C.
11003 Quaker Avenue
Lubbock, Texas 79424
Telephone: (806) 783-8322
Facsimile: (806) 783-8357
Email: kct@kctlaw.us
By: /s/ Keith C. Thompson
Keith C. Thompson
SBN: 24013631
ATTORNEY FOR APPELLANT/DEFENDANT
9
CERTIFICATE OF SERVICE
I, Keith C. Thompson, Attorney for Appellant herein, do certify that on the
21st day of May 2015, I mailed by Electronic Mail a true and correct copy of
Appellant’s Brief to:
Gary M. Poenisch
Gary M. Poenisch, P.L.L.C.
206 E. Locust Street, Suite 218
San Antonio, Texas 78212
Telephone: (210) 212-6700
Telecopier: (210) 212-2178
I further certify that on the 21st day of May 2015 I mailed by Electronic
Mail, an original and five true and correct copies of Appellant’s Brief for filing to:
Fourth Court of Appeals of Texas
Cadena-Reeves Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205-3037
10
CERTIFICATE OF COMPLIANCE
This document complies with the word-count limitations of TEX. R. APP. P.
9.4(i) because it contains 2,074 words, excluding the parts exempted by TEX. R.
APP. P. 9.4(i)(1).
By: /s/ Keith C. Thompson
KEITH C. THOMPSON
11
APPENDICES
Default Judgment Order ............................................................................................1
Trial Transcript ..........................................................................................................2
Order Setting Hearing and Certificate of Service......................................................3
12
TAM I L. W0 L F F
Court Reporter
Kendall Co u nty Courthouse
201 E. San Antonio, Suite 212 FILED IN
Boerne, Texas 78006 4th COURT OF APPEALS
(830) 331-8286 SAN ANTONIO, TEXAS
tami.wolff@co.kendall.tx.us 05/21/2015 3:30:40 PM
KEITH E. HOTTLE
Clerk
DATE : JANUARY 1 3 , 2015 INVOICE NO . 003 - 15
TO : TEMPL ETON MORTGAGE CORPORATION
5109 82ND STREET , SUITE 7121
LUBBOCK , TEXAS 70424
PHONE : (806) 745 - 9965
RE: CAUSE NO . 10 - 422
MICHAEL MIDDLETON IN THE COUNTY COURT
VS . AT LAW
TEMPLETON MORTGAGE CO . KENDALL COUNTY , TEXAS
ORIGINAL & ON E COPY OF THE REPORTER ' S RECORD :
DATE TAKEN : 10-15-14
TRANSCRIPT : $75 . 00
TOTAL COST : $75.00
AMOUNT PAID: - $75 . 00
AMOUNT DUE: $00
1
, -----
1 NO. 10- 422
2
3 MICHAEL C. MIDDLETON IN THE DISTRICT COURT
4
5 VS . 216TH JUDICIAL DISTRICT
6
TEMPLETON MORTGAGE
7 CORPORATION, JERRY W.
CORBIN , TRUSTEE, B.D.
8 ADKINS, TRUSTEE, PATTY
CORBIN , TRUSTEE, AND ENOS
9 HAMPTON INDEPENDENT EXECUTOR
OF THE ESTATE OF BETTY G.
10 ROBINSON KENDALL COUNTY , TEXAS
11
12
13
14 REPORTER'S RECORD
15
16
17 On the 15th day of October 2014, the
18 following proceedings came on to be heard in the
19 above-entitled and numbered cause before the Honorable
20 Bill Palmer , Judge presiding, he l d in Boerne , Kendall
21 County , Texas .
22 Proceedings reported by machine
23 stenographic method .
24
25
TAMI L . WOLFF, C. S.R .
PHONE: (830) 331-8286
2
1 A P PEA RAN C E S:
2
3 MR . KENNETH E. GRUBBS
Attorney a t Law
4 4241 Woodcock , Suite C- 120
San Antonio, Texas 78228
5 Phone: (210) 490 - 1292
ATTORNEY FOR THE PLAINTIFF
6
7
8 - AND -
9
10
MR. STEVEN B. TREU
11 LANGLEY & BANACK
Attorneys at Law
12 745 E. Mulberry, Suite 900
San Antonio, Texas 78212
13 Phone: (210) 736 - 6600
ATTORNEY FOR THE DEFENDANTS
14
15
16
17
18
19
20
21
22
23
24
25
TAMI L. WOLFF , c. S.R .
PHONE: (830 ) 331-8286
3
1 PRO C E E 0 I N G S
2
3 THE COURT : Okay . The Templeton case .
4 Tell me what we ' re doing today . I remember b e fore
5 that Templeton was out without an attorney . And were
6 they here last time? Was there somebody with
7 Templeton?
8 MR . TREU : Well , the law firm of Law ,
9 Snackard & Gamble was here for the withdrawal .
10 THE COURT: Okay. And then we gave them
11 notice to get --
12 MR. TREU: Yes , sir.
13 THE COURT : -- an attorney within "X"
14 number of days and they failed to --
15 MR. TREU : Here is a copy of the order .
16 It was the 26th that you gave them , and there has not
17 been an appearance .
18 THE COURT : Okay . And who are you?
19 MR. GRUBBS: I ' m Ken Grubbs on b e hal f of
20 the Plaintiff. Essentially, Steve and I are do i ng the
21 same thing today , Your Honor .
22 THE COURT: Okay .
23 MR. GRUBBS: We filed a motion for
24 default judgment based on -- I wasn't aware -- we were
25 supposed to have an as s ociate here when Steve was
TAMI L. WOLFF, C. S.R .
PHONE: (830) 331-8286
4
1 doing what he did the last time we were in court. And
2 apparently, my associate may have misinformed me about
3 his presence here in the court. So, I wasn't aware
4 that the answer had been struck and that they had been
5 given a --
6 THE COURT: Okay.
7 MR. GRUBBS: -- number of days to get
8 counsel and respond.
9 THE COURT: Yes, sir.
10 MR. GRUBBS: And based on that fact, we
11 filed and served on everybody i nvolved, including
12 Steve, our own motion for default judgment.
13 Effectively, the motions are the same thing. They're
14 just for the different parties and they have different
15 claims for
16 THE COURT: Well, I gave them the right
17 within "X" number of days to get an attorney, which is
18 what the case law says on this. And then --
19 MR. GRUBBS: Right.
20 THE COURT: -- as a result, Slnce they
21 haven't gotten an attorney as of this date, then I'll
22 strike their answer, which lets both of you go forward
23 with a default.
24 MR. TREU: I'm asking for a severance,
25 Your Honor. There was some other issues still left
TAMI L. WOLFF, C.S.R .
PHONE: (830) 331 - 8286
5
1 THE COURT: What else should be left
2 after -- do you have a default order?
3 MR. GRUBBS: I do, Your Honor, against
4 Templeton. The estate is left -- as of today, I
5 haven't checked whether they have a counter- claim or
6 not. And so, I'm not asking for a severance because I
7 -- I assume that once the estate realizes we don't
8 care anymore about the remainder of the case,
9 hopefully we'll agree to do mutual nonsuits and walk
10 away from -- from there. And they've been given
11 notice of the hearing this morning as well, Judge.
12 THE COURT: I know. I've got
13 correspondence from them.
14 MR. GRUBBS: So -- and so, that's
15 effectively where we're at. I have an affidavit for
16 my legal fees and I think Steve has got one as well.
17 MR. TREU: Mine is on file as well.
18 THE COURT: Okay. Do you have your
19 order?
20 MR. GRUBBS: I have my own default. Your
21 Honor, I did I was looking at Steve's order and
22 realized that I left something out on the legal fees
23 relating to new trial and appeal, and so I handwrote
24 it at the bottom here, Judge. So, there is some of my
25 chicken scratch here.
TAMI L. WOLFF, C.S.R.
PHONE: (830) 331-8286
6
1 THE COURT: I don ' t see that happening ,
2 but do whatever you want. If you can't get an
3 attorney for th i s , I don 't see you going much further.
4 Do they have any money? Is there any money in this?
5 MR . TREU: The biggest thing is get the
6 property back , but --
7 THE COURT : Oh , that's right .
8 MR. TREU: That 's our issue; clear the
9 title .
10 MR . GRUBBS : That's right. And that ' s
11 what ours states as well, Judge . We have our default
12 there as well , Judge. And I 've read Steve's order and
13 I have no objection to it as written.
14 THE COURT : Okay. Order of severance.
15 MR . GRUBBS : That ' s the default, Your
16 Honor.
17 THE COURT: Okay . Take this across the
18 hall and get you copies of what you need. Okay.
19 MR. GRUBBS: Thank you , Judge .
20 THE COURT : See y'all later.
21 MR . TREU: Thank you , Judge.
22
23
24
25
TAMI L. WOLFF, C.S.R.
PHONE: (830) 331 - 8286
7
,-
I THE STATE OF TEXAS *
2 COUNTY OF KENDALL *
3 I, TAMI L. WOLFF, Certified Shorthand
4 Reporter in and fo r the State of Texas, do hereby
5 certify that the above and foregoing contains a true
6 and correct transcription of all portions of evidence
7 and other proceedings requested in writing or orally
8 by counsel for the part i es to be included in this
9 volume of the reporter ' s record , i n the above - styled
10 and numbered cause , all of which occurred in open
11 court or in chambers and were reported by me.
12 I further certify that this reporter ' s
l3 record of the proceedings truly and correctly reflects
14 the exhibits, if any, admitted by the respective
15 parties.
16 I further certify that the total cost of
17 the preparation of this report~ record is $ :?~Gt)
18 and was paid/will be paid by I~ ~.
19 WITNES MY OFFICIAL HAND on this , the
20 day of 4~~~'7--- ' 2015 .
21
22
23
Expira tion : 12/3 1 /15
24 Kendall County Courthouse
201 E . San Antonio , Suite 212
25 Boerne , Texas 78006
(830) 331 - 8286
TAMI L. WOLFF, C,S , R,
PHONE: (830) 331-8286
CAUSE NO. 10422
MICHAEL MIDDLETON § IN TIlE DISTRlCT COURT
§
v § 216'" JUDIClALDISTRlCT
§ FILED IN
TEMPLETON MORTOAGE § 4th COURT OF APPEALS
CORPORATION, JERRY W. CORBIN, § SAN ANTONIO, TEXAS
TRUSTEE, BD. ADKINS, TRUSTEE, §
PATIY CORBIN, TRUSTEE, AND §
05/21/2015 3:30:40 PM
ENOS HAMPTON, INDEPENDENT § KEITH E. HOTTLE
EXECUTOR OF TIlE ESTATE OF § Clerk
BETIY G. ROBINSON § KENDALLCOUNT~TEXAS
ORDERSETnNGBE~G
Hearing on IntetVenor, Gary M. Poen isch's MOOoo to Enter Default Judgment and Request for
Severance is 6ct for the 15tb day ofOc:tober, 2014 11 9:00 a.m. inthe216t& Judicial DistrictCourt ofKCfldaU
County. Texas.
s;gnedth;s( D d'YOfocrober'2014~~
E BILLPALMER "'.
CERIIFICtVE OF SERVICE
I hereby certify that on the 9th day of October. 2014. a true and correct copy oftbe foregoing
document was forwarded via certified mlllI. return receipt reque:noo LO:
Templeton Mortgage Corporation Kenneth E. Grubbs
5109 82"" Street, Suite 7 t21 4241 Woodc.ock Drive. Suite C 120
Lubbock, Te.... 79424 San Antonio, Texas 78228-1330
210 - 4'1~-4S"7
Albert D. "Pat" Pattillo. m
Pattmo, Richard & Harpold, p.e. ....
280 Thompson Dr., Suite B
Kerrville, Texas 78Ol3
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.. '" . 81 • •~"'"
Jerry W. Corbin
C> i-
Jerry W. Corbin,P.C.
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li923 Indiana Ave.• Suite 106
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Lubbock, Texas 79413 c.n
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CAUSE NO. 10-422
MICHAEL MIDDLETON § IN THE DISTRICT COURT
§
v § 2 J6'" ruDICIAL DISTRICT
§ FILED IN
TEMPLETON MORTGAGE § 4th COURT OF APPEALS
CORPORATION, JERRY W. CORBIN, § SAN ANTONIO, TEXAS
TRUSTEE, B.D. ADKINS, TRUSTEE, §
PATTY CORBIN, TRUSTEE, AND § 05/21/2015 3:30:40 PM
ENOS HAMPTON, INDEPENDENT § KEITH E. HOTTLE
EXECUTOR OF Tin; ESTATE OF §
BE1TY G. ROBINSON § KENDALL COUNTY, TEXAS
Clerk
DEFAULT JUDGMENT
On the below date, came on to be heard Intervenor Gary M. Poenisch's ("Intervenor") claims filed
against Templeton Mortgage Corporation ("Tenlpleton") ill the above--entitled and numbered cause.
Intervenor appeared by and througb his attorney of record and announced ready. Templeton although baving
earlier appeared in this action through an attorney, failed to comply with this Court' s Order dated August
18, 2014 and consequently its pleadings were struck in this cause. Therefore a default entry in favor of
Intervenor and against Templeton is appropriate. The Court is of the opinion that the allegations of
Intervenor's Petition in Intervention against Templeton are true,lhat a declaration (as allowed under Chapter
37 of the Texas Civil Practice & Remedies Code) that the Substitute Trustcc's Deed and Deed ofTrust, both
made subject of this proceeding. arc invalid is appropriate, and that Intervenor should recover a reasonable
atlorney's fee and conditional reasonable attorney's fees, all of which the Court finds necessary. It is.
therefore,
ORDERED, ADnJDGED AND DECREED that the Substitute Trustee's Deed dated December 7,
2010 and recorded in the official records of Kendall County, Texa.... at Volume 1240 and Pages 612·61 S in
the Kendall County, Texas real propeny records, as document number 00253701, AD4 the Deed of Trust
dated As Of January 1,2009 and recorded in the official records of Kendall County, Texas at Volume 11 S9
and Pages 999·1 005 in the Kendall County, Texas real property records, as document number 002395 17, are
QQ1h hereby declared null and ~oid and of no force or effect whatsoever. It is further
I.. & B loS.58610003JU}90464S. WPOI Page 1
ORDERED. ADJUDGED AND DECREED that Templeton Mortgage Corporation never owned or
had valid title to the real property described as:
BEING 33.906 acres, more or less, tract ofland, being approximately2.892 acres outoflhe
E. Schilling SurVey No. 341, Abstract No. 829 and approximately 31 .014 acres out of the
Louis Shotwell Survey No. 26, Abstract No. 457, Kendall County, Texas, located about 14.3
miles North -43 degrees West of the county scat in Boerne, Kendall County, Texas, being
the northwestern portion of a tract as described in Deed ret:Orded in Volume 205. Page 721 ,
Kendall County Deed Records and being more fully described as follows:
BEGINNING at an existing iron pin in a. fence for the southwest comer of this tract, said pin
being South 321.2 feet from the northwest comer ofthe E. Schilling Survey No. 341;
THENCE, N 880 57 22" B 305.33' to an ex.isting iron pin for comer,
THENCE, N 2&<> 50' 35" E 2,991.28' to an existing iron pin in a fence on a southwest line
of the Holiday Road;
THENCE, with the said line of Holiday Road, N 42" 47' 50" W 66.85' (0 an existing iron pin
forcomcr;
TIlENCE, S 43° 48' 00" W 1,527.70' and S 89° 32' 45" W 640.89' to an existing iron pin in
a fence for comer;
THENCE, with fence S 00° 13' 35" W 1,373.44' and S 00° 14' 00" E 193.66' to the place of
beginning and containing 33.906 acres of land, m,?fe or less.
It is further,
ORDERED, ADJUDGED AND DECREED that Intervenor. Gary M. Poenisch. recover from
Templeton Mortgage Corporation as reasonable and necessary attorney's fees and expenses, which attorney's
fees and expenscs are hereby made part of this Judgment, the sum of$6,515.00 with postjudgrncnt interest
on such amount accruing lit the rate of5% per annum. together with all costs of COllrt in this behalf expended.
IT IS FURTI1ER ORDERED, ADJUDGED AND DECREED that Intervenor, have and recover of
and from Templeton the sum ofS2,400.00 as attorney's fees if Templeton files a motion for new trial, bill
of review or motion to vacate orothc:rwise cbange or modify Judgment which is denied or overruled, further
the sum of $12,000.00 as attorney's fees if this Judgment is unsuccess;.fully appealed to the Fourth Court of
Appeals by Templeton, further the-sum ofSI 0,000.00 as attorney's fees if petition for review is filed with
the Texas Supreme Court. further the sum 0[$20,000.00 if such petition is briefed on the merits before the
L &: B I (jS8&1OOO31L090464~ _ WPf)f Page 2
Texas Supreme Court. further the sum of $20,000.00 if oral argument is completed in the Texas Supreme
Court; at! such attorne)'s foes are hereby made part of this judgment
IT (S F1.JRTHER ORDERED, ADJUDGED AND DECREED that tbe claims ofmtcrvcnor against
Templeton and the disposition of same as set forth in this judgment shall be and are hereby severed from
Cause No. 10-422 into a separate action, such that this judgment may and shall become fmal notwithstanding
the continued pendency of Cause No.
1,,~'f22 A .
• and the clerk of the Court is hereby directed to docket
and rcoord this judgment under Cause No. (0 ..... Lf.2.:.2: A-
Intervenor is allowed such writs and processes Wi may be necessary in the enforcement and collection
of this Judgment. All co,ts of court are adjudged against Templeton.
This judgment is intended to be a final entry of default resolving all issues raised in this cause by
intervenor against Templeton from which appeal may be tiled. In that regard, all other relief expressly
requ~1:ed in this cause , by Intervenor against Templeton that is not expressly disposed of above is hereby
in all things denied.
SIGNED this 15th day of October. 2014.
J
/ .~V7 / /7
f /1 I
JUDGE PRE b ··' L---
SUSMllTED BY:
LANGLEY & BANACK, INC.
145 E. Trinity, Suite 900
San Antonio. Texas 78212-3166
(21 0) 73~600 Telc;pbone ..--,
(210)7)5-6889TeJecop}~ .
streu@Iang~ybanaCk.com, .
By: ,/~
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i.'o
STeVEN B. TRf..u .
State Bar No. 202~%o( U1
AlTORNEYS FOR PLAINTlFF
L& a 16S861OOO31L090464!i.WPJ)( Page 3
CAUSE NO. 10-422
MICHAEL MIDDLETON § IN THE DISTRICT COURT
§
v § 2 I6'" JUDICIAL DISTRICT
§
TEMPLETON MORTGAGE §
CORPORATION, JERRY W. CORBIN, §
TRUSTEE, B.D. ADKINS; TRUSTEE, §
PATTY CORBIN, TRUSTEE, AND §
ENOS HAMPTON, INDEPENDENT §
EXECUTOR OF THE ESTATE OF §
BETTY G. ROBINSON § KENDALL COUNTY, TEXAS
CERTIFICATE OF LAST KNOWN ADDRESS
TO THE CLERK OF SAID COURT:
Gary M. Poenisch, Intervenor in the above--entitled and numbered cause, certified to the Clerk of said
Court that the last known mailing address of Templeton Mortgage Corporation, Defendant in the above~
entitled and numbered cause against whom a default judgment will be rendered, is as follows:
Templeton Mortgage Corporation
5109 82·d Street. Suitt' 7121
Lubbock, Texas 79424
Respectfully submitted,
LANGLEY & BANACK, INC.
745 East Mulberry. Suite 900
San Antonio, Texas 78212·3166
(210) 736-6600 Telephone
o (210)735-6R8H;!F0: . ~~
l:J, streu@langleybapack.cP,!d"\'
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By:---;~~V~;\:;;;;-;j;_C±=-_-
.'STEVEN B. 0
L State Bar No,
L. ATTORNEYS FOR INTERVENOR
20a
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