Avalon Investments, LLC v. Jean Penick Spiller ( 2015 )

ACCEPTED
03-15-00039-CV
4804097
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/8/2015 10:57:45 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-15-00039-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD JUDICIAL DISTRICT4/8/2015 10:57:45 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
AVALON INVESTMENTS, LLC,
Appellant,
vs.
JEAN PENICK SPILLER,
Appellee.
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED
Arthur G. Vega
State Bar No. 20533600
LAW OFFFICES OF ARTHUR G. VEGA
419 S. Main, Suite 301
San Antonio, Texas 78204
Telephone No.: (210) 224-8888
Fax No.: (210) 225-7751
E-mail: artavega@yahoo.com
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Plaintiff-Appellant Counsel for Intervenors-Appellants
A val on Investments, LLC Arthur G. Vega
State Bar No. 20533600
Law Offices of Arthur G. Vega
419 S. Main, Suite 301
San Antonio, Texas 78204
Telephone No.: (210) 224-8888
Fax No.: (210) 225-7751
E-mail: artavega(cl)yahoo .co.m
Defendant-Appellee Counsel for Defendant-Appellee
Jean Penick Spiller Andrew Oliver
State Bar No. 24046556
Oliver Law Office
9951 Anderson Mill Road, Suite 201
Austin, Texas 78750
Telephone No.: (512) 233-1103
Fax No.: (512) 551-0330
E-mail: aoliver@oliverlawoffice.com
1
TABI.~E OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL.................................. 1
TABLE OF C-ONTENTS ....................... .................... ... ...... ......... ... 11
INDEX OF AUTHORITIES .......................................................... 111-1v
STATEMENT OF THE CASE...................................................... 1-5
ISSUES PRESENTED ........................ ............... .................. ...... ..... 5
STATEMENT OF FACTS.............................................................. 5-6
SUMMARY OF THE ARGUMENT ....... .............. ............ ...... ... ..... 6-8
ARGUMENT.................................................................................. 8
Issue No. 1 ............................................................................ 8-13
CONCLUSION................................................................................ 13
PRAYER.......................................................................................... 13
CERTIFICATE OF SERVICE.......................................................... 14
CERTIFICATE OF COMPLIANCE................................................. 15
APPENDIX......................................................................................... 16
11
INDEX OF AUTHORITIES
Cases
Aston Meadows, LTD. v. Devon Energy Production
Company, L.P., 359 S.W.3d 857,859
(Tex App- Forth Worth, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 9, 10, 12
Beaumont-Enterprise & Journal v. Smith, 687 S.W.2d 729
(Tex. 1985)............................................................. 7
Beavers v. Darlin, 491 S.W. 2d. 711 (Tex. Civ. App.- Waco 1973,
no writ).................................................................. 7
City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671,
675-79 (Tex. 1979) . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9
Evans v. Fort Worth Star Telegram, 548 S.W.2d 819 (Tex. Ct. App.-
Ft. Worth 1977 writ refd n.r.e.)....................................... 7
Great American R. Ins. Co. V. San Antonio Pl. Sup. Co. 391 S.W.2d
41 (Tex. 1965)............................. ... . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
Hahn v. Love, 321 S.W.3d 517, 527 (Tex. App.-Houston [1st Dist]
2009) . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Herman v. Shell Oil Company, 93 S.W.3d 605, 608 (Tex. App.-
Houston [14th Dist] 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10, 11
Noble Mortgage & Investments, LLC v. D 7 M Vision Investments,
LLC, 340 S.W.3d 65, 75, (Tex. App.-Houston [1st Dist] 2011) . . .. 9
Sabine Pilot Service, Inc. v. Hauch 687 S.W.2d 733, 734 (Tex.
1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . .. 7
Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972)............................. .. 7
Travis City v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002)............... 8
111
Tuggle v. Cooke, 277 S.W.2d 729, 732 (Civ. App.-Forth Worth,
1955, ref. n.r.e.).. .. .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . .. . . . . . . . . 10
United Blood Servs v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).. .. . . . . . . . . 8
Wilcox v. St. Mary's University, 531 S.W.2d 589, 593 (Tex. 1975)......... 7
Rules
Section 13.002, Texas Property Code 7, 9,11
IV
CAUSE NO. 03-15-00039-CV
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT
AUSTIN, TEXAS
AVALON INVESTMENTS, LLC,
Appellant,
vs.
JEAN PENICK SPILLER,
Appellee.
BRIEF FOR APPELLANT
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellant, AVALON INVESTMENTS, LLC (hereinafter referred to as
"Appellant") files the following brief in support of its appeal of the judge's
judgment and would respectfully show this Honorable Court as follows:
STATEMENT OF THE CASE
This is an appeal from a summary judgment rendered by Judge Richard
Bruce Boyer granting Appellee's traditional motion for partial summary
judgment against Appellant. (CR, P. 138-139). This is an alleged wrongful/ illegal
foreclosure by Defendant, John Kimbro in Cause No. 08-0128. (CR, P. 4-35). On
1
October 27, 2010, Appellant filed its Fourth Amended Original Petition adding
Appellee as a defendant. (CR, P. 4-35).
The Appellant, AVALON INVESTMENTS, LLC 1s a California limited
liability company doing business in Texas. (CR P. 4). On November 17, 2006,
the Appellant purchased 30.485 acres of land out of the M.B. SURVEY and
R.T. HUGHES SURVEY located in Hays County, Texas (hereinafter referred to as
the "Property"). (CR P. 5). The consideration for the sale of the Property was a
promissory note for $360,000.00 dated November 15, 2006 (hereinafter referred
to as the "Promissory Note") and secured by a Deed of Trust (hereinafter referred
to as the "Deed of Trust"). (CR P. 5).
On December 22, 2006, Defendant, John Kimbro in Cause No. 08-0128
(hereinafter referred to as "Defendant, Kimbro") executed a Collateral Transfer of
Note (Security Agreement) thereby transferring, assigning and conveying unto
JHX2, Ltd, a Texas Limited Partnership (hereinafter referred to as "JHX2, Ltd.")
said Promissory Note together with all renewals, extensions and rearrangements
thereof, and all liens, rights, titles, equities and interests securing said Promissory
Note. (CR P. 16-25). Said Collateral Transfer of Note (Security Agreement) was
filed and recorded with the Hays County Deed Records on December 27, 2006.
(CRP. 25).
2
On or about December 3, 2007, Defendant, Kimbro instructed and directed
Joseph J. Malone, Substitute Trustee to commence and file a Notice of Foreclosure
Sale on the Property at the Hays County Courthouse. Such Notice of Foreclosure
was filed and posted at the Hays County Courthouse on December 3, 2007. (CR P.
27-32). The foreclosure of the Property to occur on January 1, 2008 at the steps
of the Hays County Courthouse. (CR P. 6, 27).
The consent mandated under the Collateral Transfer of Note was not
obtained by Defendant, Kimbro prior to the posting of the Property for
foreclosure on December 3, 2007. In fact, such consent was given through a
Consent of Secured Party dated December 31, 2007 and signed by John C.
Hambrick, as Sole General Partner of JHX2 GP, Inc. (CR P. 119-124). Said
Consent of Secured Party was filed and recorded with the Hays County Deed
Records. (CR P. 119-124). Additionally, in an attempt to rectify the legal
problem created for the January 1, 2008 foreclosure, on December 31, 2007, John
C. Hambrick, as Sole General Partner of JHX2 GP, Inc. signed a Release of
Collateral Transfer of Note. (CR P. 126-131). Said Release of Collateral
Transfer of Note was also filed and recorded with the Hays County Deed
Records. (CR P. 126-131).
On January 1, 2008, Defendant, Kimbro purchased the Property at the
foreclosure sale. (CR P. 34-35). Defendant, Kimbro acquired title to the property
3
through a Substitute Trustee's Deed dated January 2, 2008. (CR P. 34-35). Said
Substitute Trustee's Deed was filed and recorded with the Hays County Deed
Records. (CR P. 34-35).
On January 9, 2008, Defendant, Kimbro sold and Appellee, Spiller
purchased an undivided one-half (1/2) interest in the Property for $ 400,000.00.
(CR P. 38). On January 9, 2008, Defendant, Spiller became and had an
ownership interest in the Property. Defendant, Spiller's title ownership interest
derives from the title interest Defendant, Kimbro obtained from the foregoing
foreclosure sale. (CR P. 34-35).
On January 8, 2013, Appellee filed her First Amended Original Answer
denying the allegations and raising an affirmative defense. (CR, P. 36-37). On July
31, 2013, Appellee filed her Traditional Motion for Partial Summary Judgment
on Her Bona Fide Purchaser Affirmative Defense against Appellant. (CR, P. 38-
67). On September 12, 2013, Appellant filed its Response to Appellee's
Traditional Motion for Partial Summary Judgment on Her Bona Fide Purchaser
Affirmative Defense. (CR, P. 68-131). On September 19, 2013, Appellee filed
her reply to Appellant's Response to Appellee's motion for partial summary
judgment. (CR, P. 132-135). On November 6, 2013, a hearing was held on
Appellee's motion for partial summary judgment at which time Judge Richard B.
Boyer granted said partial motion for summary judgment. (CR, P. 138-139). On
4
August 13, 2014, Judge Richard B. Boyer signed the Order granting Appellee's
partial motion for summary judgment. (CR, P. 138-139). On September 17, 2014,
Appellee filed her Motion to Sever. (CR, P. 140-142). On October 23, 2014,
Judge Richard B. Boyer signed an Order granting Appellee's Motion to Sever.
(CR, P. 143-144). On November 20, 2014, Appellant filed its motion for new
trial. (CR, P. 145-156). Appellants' motion for new trial was overruled by
operation of law on January 6, 2015. On January 20, 2015, Appellant filed its
Notice of Appeal with the Hays County District Clerk (CR, P. 157-158).
ISSUES PRESENTED
1. The District Court erred in granting Appellee's Traditional Motion for Partial
Summary Judgment on Her Bona Fide Purchaser Affirmative Defense.
STATEMENT OF FACTS
On January 9, 2008, Appellee, Spiller purchased an undivided one-half
(1/2) interest in the Property for $ 400,000.00. (CR P. 38). On January 9, 2008,
Defendant, Spiller became and had an ownership interest in the Property.
Defendant, Spiller's title ownership interest derives from the title interest
Defendant, Kimbro obtained from the foregoing foreclosure sale. (CR P. 34-35).
On January 8, 2013, Appellee filed her First Amended Original Answer
denying the allegations and raising an affirmative defense. (CR, P. 36-37). On July
31, 2013, Appellee filed her Traditional Motion for Partial Summary Judgment
5
on Her Bona Fide Purchaser Affirmative Defense against Appellant. (CR, P. 38-
67). On September 12, 2013, Appellant filed its Response to Appellee's
Traditional Motion for Partial Summary Judgment on Her Bona Fide Purchaser
Affirmative Defense. (CR, P. 68-131). On September 19, 2013, Appellee filed
her reply to Appellant's Response to Appellee's motion for partial summary
judgment. (CR, P. 132-135). On November 6, 2013, a hearing was held on
Appellee's motion for partial summary judgment at which time Judge Richard B.
Boyer granted said partial motion for summary judgment. (CR, P. 138-139). On
August 13, 2014, Judge Richard B. Boyer signed the Order granting Appellee's
partial motion for summary judgment. (CR, P. 138-139). On September 17, 2014,
Appellee filed her Motion to Sever. (CR, P. 140-142). On October 23, 2014,
Judge Richard B. Boyer signed an Order granting Appellee's Motion to Sever.
(CR, P. 143-144). On November 20, 2014, Appellant filed its motion for new
trial. (CR, P. 145-156). Appellants' motion for new trial was overruled by
operation of law on January 6, 2015. On January 20, 2015, Appellant filed its
Notice of Appeal with the Hays County District Clerk (CR, P. 157-158).
SUMMARY OF THE ARGUMENT
The general rule of law in Texas is that a summary judgment is sustainable
only if the movant has conclusively established that there is no genuine issue as to
a material fact, and that the movant is entitled to judgment as a matter of law.
6
Sabine Pilot Service, Inc. v. Hauch, 687 S.W.2d 733, 734 (Tex. 1985); City of
Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675-79 (Tex. 1979);
Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972). Furthermore, all doubts as to the
existence of a genuine issue as to a material fact must be resolved against the
movant for summary judgment to be granted. Evans v. Forth Worth Star
Telegram, 548 S.W.2d 819 (Tex. Ct. App. --Ft.Worth 1977 writ refd .n.r.e.);
Great American R. Ins. Co. V. San Antonio Pl. Sup. Co. 391 S.W.2d 41 (Tex.
1965); and Beavers v. Darlin, 491 S.W. 2d. 711 (Tex. Civ. App. --Waco 1973, no
writ), and every reasonable inference must be made in favor of the non-moving
party. Beaumont-Enterprise & Journal v. Smith, 687 S.W.2d 729 (Tex. 1985);
and Wilcox v. St. Mary's University, 531 S.W.2d 589, 593 (Tex. 1975).
Moreover, the courts are to accept as true, the evidence which tends to support the
position of the non-movant. Wilcox, supra at 593; Great American R. Ins. Co.,
supra at 47.
The Texas Property Code provides that an "instrument that is properly
recorded in the proper county is . . . notice to all persons of the existence of the
instrument." Tex. Prop. Code Sec. 13.002.
The trial judge erred in granting Appellee's traditional motion for partial
summary judgment since there was an issue whether Appellee had constructive
notice of records that raised a question as to the legality of the foreclosure of the
7
property conducted by Appellee's seller and thus, whether Appellee is a bona fide
purchaser.
ARGUMENT
Issue No. 1
The District Court erred in granting Appellee's Traditional Motion for
Partial Summary Judgment on Her Bona Fide Purchaser Affirmative Defense.
Summary judgment evidence must be admissible under the rules of
evidence. United Blood Servs v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). That is,
facts must be proved by the same type of evidence that would be introduced at
trial, except that the facts are proven by affidavits, depositions, interrogatories, and
other discovery, rather than by oral testimony. Travis Cty v. Pelzel & Assocs., 77
S.W.3d 246 (Tex. 2002).
The motion for summary judgment submitted by Appellee was a traditional
motion for partial summary judgment (CR, P. 38-67). The only evidence
Appellee submitted in support of her motion for partial summary judgment is her
deposition. (CR, P. 42-67). In her deposition, Appellee essentially states that she
did not personally conduct any investigation as to the title of the property she was
purchasing. (CR, P. 49). Appellee did however purchase title insurance on the
property. (CR, P. 54).
The trial court may not grant a summary judgment when the movant's
summary judgment evidence is legally insufficient. City of Houston v. Clear
8
Creek Basin Authority, 659 S.W. 2nd 671, 678 (Tex. 1979). Moreover, the Texas
Supreme Court held in City of Houston v. Clear Creek Basin Authority:
"Summary judgments must stand on their own merits, and the non-
movant's failure to answer or respond cannot supply by default the
summary judgment proof necessary to establish the movant's right."
at P. 678.
A bona fide purchaser is one who acquires property in good faith, for value,
and without notice, constructive or actual, of any third party interest or claim.
Noble Mortgage & Investments, LLC v. D 7 M Vision Investments, LLC, 340
S.W.3d 65, 75, (Tex. App.-Houston [1st Dist] 2011). Notice sufficient to defeat a
bona fide purchaser status may be actual or constructive. Noble, 340 S.W.3d at P.
76. Actual notice rests on personal information or knowledge. Noble, 340 S.W.3d
at P. 76. Constructive notice is notice the law imputes to a person not having
personal information or knowledge. Noble, 340 S.W.3d at P. 76. Constructive
notice creates an irrebuttable presumption of actual notice in some circumstances.
Noble, 340 S.W.3d at P. 76. The Texas Property Code provides that an
"instrument that is properly recorded in the proper county is ... notice to all
persons of the existence of the instrument." Tex. Prop. Code Sec. 13 .002; Aston
Meadows, LTD. v. Devon Energy Production Company, L.P., 359 S.W.3d
857,859 ( Tex App- Forth Worth, 2012). Recorded instruments in a grantee's
chain of title generally establish an irrebuttable presumption of notice. Aston, 359
S.W.3d at P. 859. Courts have held that real property records can constitute
9
constructive notice. Aston, 359 S.W.3d at P. 859. The court in Hahn v. Love, 321
S.W.3d 517, 527 (Tex. App.-Houston [1st Dist] 2009) stated:
"A transferee who takes property with knowledge of such facts as would
excite the suspicions of a person of ordinary prudence and put him on
inquiry of the fraudulent nature of an alleged transfer does not take the
property in good faith and is not a bona fide purchaser." at P. 527.
The general rule of law is that a purchaser is bound by every recital, reference
and reservation contained in or fairly disclosed by any instrument which forms an
essential link in the chain of title under which he claims. Aston, 359 S.W.3d at P.
859. Moreover, purchasers are charged with knowledge of the provisions of
recorded instruments that form an essential link in their chain of ownership.
Herman v. Shell Oil Company, 93 S.W.3d 605, 608 (Tex. App.-Houston [14th
Dist] 2002). When a fact is recited in a recorded instrument which is sufficient to
put a prudent person on inquiry, the purchaser is charged with notice of facts
which might have been ascertained by a proper inquiry. Tuggle v. Cooke, 277
S.W.2d 729, 732 (Civ. App.-Forth Worth, 1955, ref. n.r.e.).
The question of whether a party has notice is a fact question for the trier of
fact to decide; it becomes a question of law only when there is no room for
ordinary minds to differ as to the proper conclusion to be drawn from the evidence.
Hahn, 321 S.W.3d at P. 527. The general rule of law is that "fraudulent transfer
and bona fide purchaser status are generally questions for the trier of fact that are
inappropriate for summary judgment." Hahn, 321 S.W.3d at P. 527.
10
The record establishes that prior to Appellee's purchased of her one-half
(1/2) undivided interest in the property, that the following documents were filed
prior to January 9, 2008 and were of record in the Hays County Deed Records:
the Collateral Transfer of Note (Security Agreement) (CR P. 16-25); Consent of
Secured Party (CR P. 119-124); Release of Collateral Transfer of Note (CR P.
126-131); and Substitute Trustee's Deed. (CR P. 34-35). The foregoing
recorded documents clearly form an essential link in Appellee's chain of
ownership. Herman, 93 S.W.3d at P. 608.The foregoing recorded documents
clearly raised and put Appellee on notice of questions and suspicions regarding
the legality of the foreclosure where Appellee's seller, John Kimbro acquired and
purchased the property. (CR P. 34-35). It is clear that a proper investigation of
the Hays County Deed Records would have disclosed the aforementioned four
(4) documents filed of record and hence, raise "the suspicions of a person of
ordinary prudence" regarding the title and ownership of the property being sold by
John Kimbro. Furthermore, since the Collateral Transfer of Note (Security
Agreement) (CR P. 16-25); Consent of Secured Party (CR P. 119-124); Release
of Collateral Transfer of Note (CR P. 126-131); and Substitute Trustee's Deed
(CR P. 34-35) were properly recorded in Hays County Deed Records, it is notice
to all persons including Appellee of the existence of said instruments. Sec.
13.002, Tex. Prop. Code. It has been held that "Recorded instruments in a
11
grantee's chain of title generally establish an irrebuttable presumption of notice."
Aston, 359 S.W.3d at P. 859.
In reference to whether Appellee had notice of Appellant's interest and/ or
claim to the property, the Substitute Trustee's Deed makes reference to Appellant
as the "Grantor under the Deed of Trust dated November 15, 2007". (CR P. 34-
3 5). Therefore, should an issue arise as to the legality of the foreclosure,
Appellant would be the party to raise such an issue and challenge such foreclosure
through a lawsuit.
Notwithstanding the foregoing four (4) recorded documents, clearly the
Collateral Transfer of Note (Security Agreement) which was filed and recorded
with the Hays County Deed Records on December 27, 2006 (CR P. 16-25) would
raise "suspicions" of John Kimbro's ownership and right to sell and transfer title
to the property. Said Collateral Transfer of Note (Security Agreement) was filed
more than two (2) years prior to Appellee's purchase on January 9, 2008 of her
undivided one-half (1/2) interest in the property. (CR P. 38). Pursuant to the
Collateral Transfer of Note (Security Agreement)- "The Debtor has GRANTED,
SOLD and CONVEYED and by these presents does GRANT, SELL and
CONVEY all of Debtor's present and hereafter acquired right, title and interest, in
and to the Land, unto John C. Hambrick, Trustee for the benefit of the Secured
12
Party ... " (CR P. 20). The Debtor as defined in said Collateral Transfer of Note
(Security Agreement) is John Kimbro (CR P. 16), Appellee's seller.
It is evident that Appellee submitted no evidence through any
documentation to establish that as a matter of law she was entitled to a
summary judgment. Moreover, Appellee's only summary judgment evidence,
i.e., her deposition, is legally insufficient to support the granting of Appellee's
motion for partial summary judgment.
CONCLUSION
The aforementioned authorities, arguments and record before the Court of
Appeals clearly establish that the trial judge erred in granting Appellee's
traditional motion for partial summary judgment since the summary judgment
evidence was legally insufficient to support the granting of the motion for partial
summary judgment. Accordingly, the summary judgment rendered in the case at
bar should be reversed and set aside, and a new trial granted.
PRAYER
Appellant respectfully prays that this Court reverse and set aside the
summary judgment entered by the trial judge, and render an order remanding this
case to the trial court for a new trial.
13
Respectfully submitted,
LAW OFFICES OF ARTHUR G. VEGA
419 S. Main, Suite 301
San Antonio, Texas 78204
Telephone: (21 0) 224-8888
Facsimile: (210) 225-7751
E-mail: artavega@yahoo.com
Is/ Arthur G. Vega
ARTHUR G. VEGA
State Bar No. 20533600
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that on this the 7th day of April, 2015, I electronically
filed the foregoing Appellant's Brief with the Clerk of the Court using the
CM/ECF filing system which will send notification of such filing to the Attorney
for Appellee, Mr. Andrew Oliver, OLIVER LAW OFFICE, 9951 Anderson Mill
Road, Suite 201, Austin, Texas 78750
Is/ Arthur G. Vega
ARTHURG. VEGA
14
CERTIFICATE OF COMPLIANCE
In pursuance to Rule 9 .4(i)(3 ), Texas Rules of Appellate Procedure, I hereby
certify that this brief contains 3,044 words.
/s/ Arthur G. Vega
ARTHUR G. VEGA
15
APPENDIX
TABLE OF CONTENTS
Order Granting Defendant Jean Penick Spiller's
Traditional Motion for Partial Summary Judgment ................. 1-2
Order Granting Defendant Jean Penick Spiller's
Motion to Sever . . . . . . .. ......... .. ............. ... ....................... ....... .. 3-4
16
FI!.Eoaf
CAUSE NO. 08-0128
14 AUG 14 PH 3: 38
AVALON INVESTMENTS, LLC § IN THE DIS~T ~OURT
Plaintiff, § C..t·:., f ._ ... ·:..:;..r.1f~
§ c•t·r-,( -.-- .... ! ,-:--,.< u
vs. § 2o1rh Juoicfxrb'~~~futT--;·;:·~~/ !.s
§
JOHN KIMBRO, §
Defendant § HAYS COUNTY, TEXAS
ORDER GRANTING DEFENDANT JEAN PENICK SPILLER'S
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT
On November 6, 2013. the Court considered Defendant Jean Penick Spiller's Traditional
Motion for Partial Summary Judgment On Her Bona Fide Purchaser Affirmative Defense.
Pia inti ff Avalon Investments, LLC and Defendant Jean Penick Spiller appeared by and through
their attorneys and announced ready. Having considered the Motion, Plaintiffs Response
thereto. Defendant Jean Penick Spiller's Reply to Plaintiff's Summary Judgment Response, the
arguments of counsel, and the pleadings and other matters on file in this lawsuit, the Court is of
the opinion that Defendant Jean Penick Spiller's Traditional Motion for Partial Summary
Judgment On Her Bona Fide Purchaser Affirmative Defense should be in all respects granted.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiff Avalon
lnvestments, LLC does hereby take nothing on Plaintiffs claims in this lawsuit against
Defendant Jean Penick Spiller or her interest in the property described in that certain General
Warranty Deed tiled for record in Volume 3317 at Page 19 of the Official Public Records of
Hays County. Texas ("~Property").
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the Notice of Lis
Pendens filed by Plaintiff under Document Number 8000 J 620 and in Volume 3318 at page 819
of the Official Public Records of Hays County, Texas is of no further force and effect as to the
interest of Defendant Jean Penick Spiller in the Property; and said Notice of Lis Pendens is still
Page 1
000138 *'
•
111 !'ull liu\.:l' and eff"t:rl ciS Ill ;my right rille. or inl(~fl!St of IJ\.~fl~IHJanl. John Kimhm in the
SICiNED this t_j_/1,y.,r£b-~ 2014.
SI!BMI rrED BY:
/ j j ,.
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,I '
~·
1 - I 1/:.--
~-----·- .. --- ··---·
.'\ndn.·w ()liv~r
Slak Bar No. 240c.l6556
Arronwy fnr Dl~fi:~ndant Jean Pcnkk Spiller
· .:\PPR(JVI·:I> AS TO
H HU\-1, 0 .\J I Y In. :
;~~~~6
Stal\' Rrr No. 205) )(>00
Allonu:y l()r Plaintiff
Page 2
000139
CAUSE NO. 08-0128
FILE:)~
14 OCT 23 AH II: 18 ',J
AVALON INVESTMENTS, LLC § TN THE ~~~T c.?~_RI: ~
Plaintiff, § l/
§ r. ... ·.. .:- l;_~-~· : v
vs. § 2o1th Ju~l~l·n1st~ttfAS
§
JOHN KIMBRO, §
Defendant § HAYS COUNTY, TEXAS
ORDER GRANTING DEFENDANT JEAN PENICK SPILLER'S MOTION TO SEVER
On this day the Court considered Defendant Jean Penick Spiller·s Motion to Sever.
Having considered said Motion, the pleadings, and other matters on file in this lawsuit. as ·well as
the arguments of counsel, if any, the Court is of the opinion that the Motion should be in all
respects granted.
IT IS THEREFORE ORDERED that the claims by and between Plaintiffs Avalon
Investments, LLC, and Defendant Jean Penick Spiller shall be severed into a separate cause and
that the Hays County District Court shall assign the following cause number to the severed
cause: (hereinafter referred to as the ··severed
Cause'').
IT IS FURTHER ORDERED that the Hays County District Court shall file copies of the
following items in this cause in the Severed Cause:
I. Plaintiffs Fourth Amended Original Petition filed on October 27, 2010.
2. Defendant Jean Penick Spiller's First Amended Original Answer filed on January
8, 2013.
3. Defendant Jean Penick Spiller's Traditional Motion for Partial Summary
Judgment on Her Bona Fide Purchaser Affirmative Defense filed on or about July 31,2013.
4. Plaintiffs Response to Defendant Jean Penick Spiller's Traditional Motion for
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Partial Summary Judgment on Her Bona Fide Purchaser Affinnative Defense filed on or about
September 12,2013.
5. Defendant Jean Penick Spiller's Reply to Plaintiffs Summary Judgment
Response filed on or about September 19, 2013.
6. Letter from Arthur Vega to the Court dated November 13, 20 I 3.
7. Letter from Andrew Oliver to the Court dated November 18, 2013.
8. Letter from Court dated April30, 2014.
9. Order Granting Defendant Jean Penick Spiller's Traditional Motion for Partial
Summary Judgment filed on August 14, 2014.
10. Defendant Jean Penick Spiller's Motion to Sever filed on September 17,2014.
11. This Order Granting Defendant Jean Penick Spiller's Motion to Sever.
IT IS FURTHER ORDERED that upon being filed in the Severed Cause, the Order
Granting Defendant Jean Penick Spiller's Traditional Motion for Partial Summary Judgment
shall be treated as a final judgment for all purposes.
SIGNED this~ day of~ , 2014.
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