Robert Marx and Debbie Marx v. Fdp, Lp ( 2015 )

ACCEPTED
04-14-00641-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/11/2015 1:37:12 PM
KEITH HOTTLE
CLERK
NO. 04-14-00641-CV
______________________________________________________________
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO, TEXAS
______________________________________________________________
ROBERT MARX AND DEBBIE MARX,
Appellants,
V.
FDP, LP,
Appellee.
______________________________________________________________
On Appeal From the 81st Judicial
District Court of Wilson County, Texas,
Trial Court Cause No. 12-03-0101-CVW
______________________________________________________________
BRIEF OF APPELLEE FDP, LP
______________________________________________________________
GILBERT T. ADAMS, III VINCENT L. MARABLE III
gilbert@gta-law.com trippmarable@sbcglobal.net
GILBERT ADAMS LAW OFFICES PAUL WEBB, P.C.
1855 Calder Avenue at Third 221 N. Houston
P. O. Drawer 3688 Wharton, Texas 77488
Beaumont, Texas 77704 Telephone: (979) 532-5331
Telephone: (409) 835-3000 Telecopier: (979) 532-2902
Telecopier: (409) 832-6162
ATTORNEYS FOR APPELLEE FDP, LP
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF THE CASE (Tex. R. App. P.
38.1(d)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . 18
RECORD AND PARTY REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . 19
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
BRIEF OF APPELLEE FDP, LP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
INTRODUCTION AND OVERVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. The Farm And Ranch Contract. . . . . . . . . . . . . . . . . . . . . . . . 22
B. The Marxes Breach The Farm And
Ranch Contract.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. FDP Sues The Marxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
D. FDP And The Marxes Settle. . . . . . . . . . . . . . . . . . . . . . . . . . 27
E. The Marxes Breach The Mediated
Settlement Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
F. The Arbitrator Rules And His Rulings
Are Confirmed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2
G. The Trial Court Orders Specific
Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
A. Mediated Settlement Agreements.. . . . . . . . . . . . . . . . . . . . . 36
B. Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
C. Contract Formation And Unenforceability. . . . . . . . . . . . . . . . 39
D. Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
A. The Mediated Settlement Agreement Was
Enforceable And The Trial Court Did Not
Err In Granting FDP’s Motion For Final
Summary Judgment (Responsive to
Appellants’ Brief, pp. 15-19). . . . . . . . . . . . . . . . . . . . . . . . . . 42
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
II. The Marxes’ Arguments Reflect A Lack
Of Understanding Of Texas Law
Governing Contract Modification. . . . . . . . . . . . . . . . . . 48
III. The Trial Court Did Not Abuse Its
Discretion In Awarding Specific
Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
IV. The Marxes’ Authorities Are Inapposite. . . . . . . . . . . . . 58
3
B. The Option That The Marxes Agreed To
In The Mediated Settlement Agreement
Was Supported By Consideration
(Responsive to Appellants’ Brief, pp.
19-21). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
C. The Affirmative Defenses Alleged By
The Marxes Did Not Bar The Trial Court
From Granting Summary Judgment In
Favor Of FDP (Responsive to Appellants’
Brief, p. 22). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
APPENDIX
Final Judgment signed August 11, 2014
(2 CR 532-556) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “1”
Farm and Ranch Contract
(1 CR 16-31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “2”
Mediated Settlement Agreement
(1 CR 182-188) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “3”
Order confirming Arbitration Award and
incorporating Arbitrator’s Ruling
(2 CR 353-363) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “4”
4
INDEX OF AUTHORITIES
CASES:
Advance Components, Inc. v. Goodstein, 608
SW.2d 737 (Tex. Civ. App.–Dallas 1980, writ
ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53, 54, 57, 60
Allen v. Am. Gen. Finance, Inc., 251 S.W.3d 676
(Tex. App.–San Antonio 2007, pet. granted,
judgment vacated pursuant to settlement). . . . . . . . . . . . . . . . . . . . . . . . 63
America’s Favorite Chicken Co. v. Samaras, 929
S.W.2d 617 (Tex. App.–San Antonio 1996, writ
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 45
Ayala v. Soto, No. 04-12-00860-CV, 2014 WL
1614281 (Tex. App.–San Antonio April 23,
2014, pet. filed) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
BACM 2001-1 San Felipe Road Ltd. Partnership
v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137
(Tex. App.–Houston [14th Dist.] 2007, pet. denied). . . . . . . . . . . . . . . . . . 48
Birdwell v. Birdwell, 819 S.W.2d 223 (Tex. App.–
Fort Worth 1991, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 71
Blaffer & Farish v. Gulf Pipe Line Co., 218 S.W.
89 (Tex. Civ. App.–Galveston 1919, no writ).. . . . . . . . . . . . . . . . . . . 67, 68
5
Bridgeman v. Jefferson Amusement Co., 207
S.W.2d 138 (Tex. Civ. App.–Beaumont 1948,
writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67
Brison v. Continental Oil Co., 48 S.W.2d 442
(Tex. Civ. App.–Fort Worth 1932, writ ref’d). . . . . . . . . . . . . . . . . . . . . . . 71
Brooks v. Excellence Mortg., Ltd., __ S.W.3d __,
No. 04-13-00106, 2014 WL 2434583 (Tex. App.–
San Antonio May 30, 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Brownlee v. Brownlee, 665 S.W.2d 111 (Tex.
1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 79
Brownwood Ross Co. v. Maverick Cnty., 936
S.W.2d 42 (Tex. App.–San Antonio 1996, writ
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Bryant v. Cady, 445 S.W.3d 815 (Tex. App.–
Texarkana 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Chambers County v. TSP Dev., Ltd., 63 S.W.3d 835
(Tex. App.–Houston [14th Dist.] 2001, pet. denied). . . . . . . . . . . . 74, 75, 76
Corsicana Petroleum Co. v. Owens, 222 S.W.
154 (Tex. 1920).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Culbertson v. Brodsky, 788 S.W.2d 156 (Tex.
App.–Fort Worth 1990, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6
Doncaster v. Hernaiz, 161 S.W.3d 594 (Tex.
App.–San Antonio 2005, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Eastman Gas Company, L.L.C. v. Goodrich
Petroleum Company, L.L.C., __ S.W.3d __,
No. 06-13-00128-CV, 2015 WL 170234 (Tex.
App.–Texarkana Jan. 14, 2015, no pet. h.). . . . . . . . . . . . . . . . . . . . . . . . 40
Echols v. Bloom, 485 S.W.2d 798 (Tex. Civ.
App.–Houston [14th Dist.] 1972, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . 65, 66
Enserch Corp. v. Rebich, 925 S.W.2d 75 (Tex.
App.–Tyler 1996, writ dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Estate of Griffin v. Sumner, 604 S.W.2d 221 (Tex.
Civ. App.–San Antonio 1980, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . 50
Fortner v. Fannin Bank in Windom, 634 S.W.2d 74
(Tex. App.–Austin 1982, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Foster v. Lessing, 346 S.W.2d 939 (Tex. Civ.
App.–Waco 1961, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Garrod Investments, Inc. v. Schlegel, 139 S.W.3d
759 (Tex. App.–Corpus Christi 2004, no pet.). . . . . . . . . . . . . . . . . . . 58, 60
General Metal Fabricating Corporation Corp. v.
Stergiou, 438 S.W.3d 737 (Tex. App.–Houston
[1st Dist.] 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 46
7
Great Western Oil Co. v. Carpenter, 95 S.W. 57
(Tex. Civ. App. 1906, writ ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 72
Hammonds v. Cramer Financial Group, Inc., No.
04-96-00548-CV, 1997 WL 184734 (Tex. App.–
San Antonio April 16, 1997, no writ) (not
designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Hastings v. Pichinson, 370 S.W.2d 1 (Tex. Civ.
App.–San Antonio 1963, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Hernandez v. Telles, 663 S.W.2d 91 (Tex. App.–
El Paso 1983, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Horner v. Bourland, 724 F.2d 1142 (5th Cir. 1984). . . . . . . . . . . . 55, 56, 57
Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851
(Tex. App.–Dallas 1983, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . 73
Incore Construction, Inc. v. Incore, Inc., No.
04-08-00785-CV, 2009 WL 4827071 (Tex.
App.–San Antonio Dec. 16, 2009, pet. denied)
(mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
In re Blankenship, 392 S.W.3d 249 (Tex. App.–
San Antonio 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 78
In re Estate of Valdez, 406 S.W.3d 228 (Tex.
App.–San Antonio 2013, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223
(Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Jim Maddox Properties, LLC v. WEM Equity
Capital Investments, Ltd., 446 S.W.3d 126
(Tex. App.–Houston [1st Dist.] 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . 80
Johnson v. Farrow, 594 S.W.2d 655 (Mo. App.
1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Kress v. Soules, 261 S.W.2d 703 (Tex. 1953). . . . . . . . . . . . . . . . . . . . . 38
Lee v. Lee, 275 S.W.2d 574 (Tex. Civ. App.–
Texarkana 1955, writ dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Lower Colorado River Authority v. Naumann, 638
S.W.2d 195 (Tex. App.–Houston [1st Dist.] 1982,
writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Lunsford Consulting Group, Inc. v. Crescent Real
Estate Funding VIII, L.P., 77 S.W.3d 473 (Tex.
App.–Houston [1st Dist.] 2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Mart. v. Martin, 326 S.W.3d 741 (Tex. App.–
Texarkana 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Mart. v. Martin, Martin & Richards, Inc., 12 S.W.3d
120 (Tex. App.–Fort Worth 1999, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . 71
9
Mayhew & Isbell Lumber Co. v. Valley Wells Truck
Growers’ Ass’n, 216 S.W. 225 (Tex. Civ. App.–
San Antonio 1919, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
McCalla v. Baker’s Campground, Inc., 416 S.W.3d
416 (Tex. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 46
Mitchell v. Lawson, 444 S.W.2d 192 (Tex. Civ.
App.–San Antonio 1969, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
National Oil & Pipe Line Co. v. Teel, 68 S.W. 979
(Tex. 1902). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Nolan v. Hunter, No. 04-13-00072-CV, 2013 WL
5431050 (Tex. App.–San Antonio Sept. 25, 2013,
no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Nolana Development Ass’n v. Corsi, 682 S.W.2d
246 (Tex. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Pace Corporation v. Jackson, 284 S.W.2d 340
(Tex. 1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69
Paciwest, Inc. v. Warner Alan Properties, LLC,
266 S.W.3d 559 (Tex. App.–Fort Worth 2008,
pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52
10
Pickard v. LJH Enterprises, No. 01-07-01105-CV,
2010 WL 1493105 (Tex. App.–Houston [1st Dist.]
April 15, 2010, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Potcinske v. McDonald Property Investments,
Ltd., 245 S.W.3d 526 (Tex. App.–Houston
[1st Dist.] 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 58, 59, 60
Prairie Producing Co. v. Martens, 705 S.W.2d 257
(Tex. App.–Texarkana 1986, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . 64, 71
Reeves v. Lago Vista, Inc., 497 S.W.2d 950 (Tex.
Civ. App.–Austin 1973, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . 64
Reserve Petroleum Co. v. Hodge, 213 S.W.2d
456 (Tex. 1948).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rickey v. Houston Health Club, 863 S.W.2d 148
(Tex. App.–Texarkana 1993), writ denied n.r.e.,
888 S.W.2d 812 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Rother v. Rother, No. 04-13-00899-CV, 2014 WL
4922898 (Tex. App.–San Antonio Oct. 1, 2014,
no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921
(Tex. App.–Tyler 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11
Saenz v. Martinez, No. 04-07-00339-CV, 2008 WL
4809217 (Tex. App.–San Antonio Nov. 5, 2008,
no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 43, 63, 71
Saturn Capital Corp. v. Dorsey, No. 01-04-00626-CV,
2006 WL 1767602 (Tex. App.–Houston [1st Dist.]
2006, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Schlumberger Technology Corporation v. Swanson,
959 S.W.2d 171 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Scott v. Sebree, 986 S.W.2d 364 (Tex. App.–
Austin 1999, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 49
Sifuentes v. Carrillo, 982 S.W.2d 500 (Tex.
App.–San Antonio 1998, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Smith v. Thorne, No. 01-01-01241-CV, 2003 WL
21357297 (Tex. App.–Houston [1st Dist.] June
12, 2003, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 59
Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d
530 (Tex. App.–Dallas 2007, pet. denied).. . . . . . . . . . . . . . . . . . . . . 38, 39
Wilson v. Beaty, 211 S.W. 524 (Tex. Civ. App.–
San Antonio 1919, writ ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
12
Wise v. Luke Development, LLC, No.
04-12-00477-CV, 2013 WL 4483381
(Tex. App.–San Antonio Aug. 21, 2013,
no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 81
Woodside v. Woodside, 154 S.W.3d 688 (Tex.
App.–El Paso 2004, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Wright v. Sydow, 173 S.W.3d 534 (Tex. App.–
Houston [14th Dist.] 2004, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 38
RULES AND STATUTES:
Tex. Civ. Prac. & Rem. Code Ann. § 154.002. . . . . . . . . . . . . . . . . . . . . . 38
Tex. Civ. Prac. & Rem. Code Ann. § 154.003. . . . . . . . . . . . . . . . . . . . . . 38
Tex. Civ. Prac. & Rem. Code Section 154.071(a). . . . . . . . . . . . . . . . . . . 37
Tex. Gov’t Code §§ 2007.001–.045. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Tex. R. App. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Tex. R. App. P. 9.4(i)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
13
Tex. R. App. P. 38.1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Tex. R. App. P. 38.2(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
OTHER SOURCES:
Joseph Perillo and Helen Bender, 2 Corbin on
Contracts (rev. ed. 1995) Section 5.12. . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Restatement (Second) of Contracts, Section
80 (1981), comment a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
14
STATEMENT OF THE CASE
(Tex. R. App. P. 38.1(d))
The Appellants’ Brief contains a section entitled “Statement of the Case”
on pages 1-2. This section of Appellants’ Brief does not comply with the
requirements of Texas Rule of Appellate Procedure 38.1(d). For such reason,
Appellee FDP, LP includes this Statement of the Case that complies with Tex.
R. App. P. 38.1(d).
NATURE OF THE CASE: This is a contractual dispute arising from
a Farm and Ranch Contract executed by
Appellants Robert and Debbie Marx, as
Sellers and Appellee FDP, LP as Buyer,
pursuant to which the Marxes agreed to
sell to FDP, LP a 500 acre tract for
$1,875,000.00 ($3,750.00 per acre) and
to grant to FDP, LP a right of first refusal
and option to purchase a 21 acre tract. (1
CR 16-30; Tab “2” to Appendix)
COURSE OF PROCEEDINGS: FDP, LP filed suit against the Marxes and
their attorney on March 12, 2012,
requesting specific performance and
seeking actual and exemplary damages.
(1 CR 1-32) On August 27, 2013, FDP,
LP and the Marxes entered into a
Mediated Settlement Agreement that
contained the following terms:
a) FDP, LP agreed to purchase from
the Marxes 421 acres for $5,000.00
per acre;
15
b) the Marxes retained a Homestead
for no longer than 8 years;
c) the parties were to mutually agree
on the Homestead, not to exceed
100 acres;
d) if the parties could not agree on
what constituted the Homestead,
the issue would be submitted to
arbitration;
e) FDP, LP was granted an exclusive
option to purchase the Homestead;
and
f) all claims and causes of action
between the parties, except for the
undertakings in the Mediated
Settlement Agreement were
mutually released. (1 CR 182-188;
Tab “3” to Appendix)
The Mediated Settlement Agreement was
filed on September 3, 2013. (1 CR 182)
On September 16, 2013, the Marxes
objected to the Mediated Settlement
Agreement. (1 CR 191-202)
TRIAL COURT’S DISPOSITION
OF THE CASE: On October 23, 2013, the trial court
ordered the parties back to mediation. (2
CR 322) The mediation was not
successful. (2 CR 323) On November
14, 2013, the trial court ordered the
parties to arbitrate the issue of
designation of the 100 acre Homestead.
16
(2 CR 323) The arbitrator made his ruling
on such issue by letter dated April 14,
2014. (2 CR 355-363; Tab “4” to
Appendix) The trial court confirmed the
arbitration award on May 12, 2014. (2 CR
353-363; Tab “4” to Appendix) On August
11, 2014, the trial court signed a Final
Judgment in favor of FDP, LP awarding
specific performance and attorneys’ fees.
(2 CR 532-556; Tab “1” to Appendix)
17
STATEMENT REGARDING ORAL ARGUMENT
The final judgment in this case orders specific enforcement of a Farm
and Ranch Contract that was modified by a Mediated Settlement Agreement
and clarified by an arbitration ruling. (2 CR 532-556; Tab “1” to Appendix)
The standard of appellate review that governs the enforceability of the trial
court’s rulings and the challenges made on appeal by the Marxes are well-
established. Appellee FDP, LP does not believe that oral argument will assist
the Court in disposing of the issues in this appeal. However, should this
Court decide that oral argument would be beneficial to resolution of this case,
counsel for FDP, LP will gladly participate in such oral argument.
18
RECORD AND PARTY REFERENCES
Appellee FDP, LP is referred to in the Brief of Appellee as “FDP.”
Appellants Robert and Debbie Marx are referred to in the Brief of
Appellee collectively as the “Marxes.”
The original clerk’s record is two volumes and was filed in the Court of
Appeals on October 9, 2014. References in the Brief of Appellee to the two
volume original clerk’s record are shown as (“____ CR ____”) with the volume
and page number of the clerk’s record in parentheses.
There is no reporter’s record.
19
APPENDIX
Final Judgment signed August 11, 2014
(2 CR 532-556) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “1”
Farm and Ranch Contract
(1 CR 16-31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “2”
Mediated Settlement Agreement
(1 CR 182-188) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “3”
Order confirming Arbitration Award and
incorporating Arbitrator’s Ruling
(2 CR 353-363) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “4”
20
TO THE HONORABLE FOURTH COURT OF APPEALS:
Appellee FDP, LP (“FDP”) files this its Brief of Appellee requesting that
this Court affirm the final judgment in favor of FDP which ordered specific
performance of an agreement to sell to FDP real property owned by the
Marxes.
INTRODUCTION AND OVERVIEW
The principal issue in this appeal is the propriety of the trial court’s final
judgment awarding specific performance in favor of FDP for the sale of real
property located in Wilson County, Texas, which sale is documented in a
January 27, 2012, Farm and Ranch Contract, that was modified by an August
27, 2013, Mediated Settlement Agreement and clarified by a May 12, 2014,
arbitration award. (2 CR 532-556; 1 CR 16-31; 1 CR 182-188; 2 CR 353-363;
Tabs “1” - “4” to Appendix)
The January 27, 2012, Farm and Ranch Contract obligated FDP to pay
to the Marxes a purchase price of $1,875,000.00 (500 acres at $3,750.00 per
acre), consisting of $300,000.00 cash and a promissory note for
$1,575,000.00, payable in monthly installments of $12,048.64 for 180 months,
at 4.5% interest. (1 CR 16, 17, 25) The August 27, 2013, Mediated
Settlement Agreement increased the purchase price payable by FDP to
21
$5000.00 per acre for 421 acres. (1 CR 182-183) The final judgment
ordering specific performance obligates FDP to pay to the Marxes a purchase
price of $2,086,675.00, consisting of $300,000.00 cash and a promissory note
for $1,786,675.00, payable in monthly installments of $13,667.94 for 180
months at 4.5% interest. (2 CR 533, 542-546)
The Marxes have repeatedly frustrated FDP’s attempts to close on the
sale of the real property, which has included multiple firings and hirings of new
lawyers. The trial court did not abuse its discretion in ordering the equitable
remedy of specific performance and requiring the Marxes to convey to FDP
the real property that the Marxes agreed to sell.
STATEMENT OF FACTS
Appellee FDP is dissatisfied with the Marxes’ Statement of Facts, pages
2-14 of Appellants’ Brief. For such reason, FDP presents this Statement of
Facts. See Tex. R. App. P. 38.2(a)(1)(B).
A. The Farm And Ranch Contract
On January 27, 2012, Appellants Robert Marx and Debbie Marx, as
Sellers, and Appellee FDP, as Buyer, executed a Farm and Ranch Contract.
(1 CR 16-31; Tab “2” to Appendix) The Marxes agreed to sell to FDP real
property located in Wilson County described as follows: “Approximately 500
22
acres to be surveyed out of a tract of land containing 521.79 acres further
described in exhibit ‘A.’” (1 CR 16, ¶ 2(A)) The Farm and Ranch Contract
further described the real property as the “Marx Ranch, Lavernia, Tx.” (1 CR
16, ¶ 2(A)) The Exhibit “A” to the Farm and Ranch Contract contains field
notes for a 326.047 acre tract and a 186.152 acre tract. (1 CR 27-30) The
Marxes agreed to furnish a new survey to FDP. (1 CR 17, ¶ 6(C)(3)) FDP
owned land on both sides of the Marx Ranch, the property the subject of the
January 27, 2012, Farm and Ranch Contract. (2 CR 448, ¶ 7)
The “Sales Price” provision of the Farm and Ranch Contract reads as
follows:
3. SALES PRICE:
A. Cash portion of Sales Price
payable by Buyer at closing. . . . . . . . . . . . $ 300,000.00
B. Sum of all financing described
below (excluding any loan
funding fee or mortgage insurance
premium). . . . . . . . . . . . . . . . . . . . . . . . . . $1,575,000.00
C. Sales Price (Sum of A and B). . . . . . . . . . $1,875,000.00
D. The Sales Price [X] will [ ] will not be
adjusted based on the survey required
by Paragraph 6C. If the Sales Price is
adjusted, the Sales Price will be calculated
on the basis of $3,750.00 per acre. If the
Sales Price is adjusted by more than 10%,
either party may terminate this contract by
providing written notice to the other party
within 14 days after the terminating party
receives the survey. If neither party terminates
23
this contract or if the variance is 10% or less,
the adjustment will be made to the amount in
[ ] 3A [ ] 3B [ ] proportionately to 3A and 3B.
(1 CR 16, ¶ 3)
The Farm and Ranch Contract stated that the financed portion of the
purchase price would be “Seller Financing,” based on a promissory note from
FDP to the Marxes of $1,575,000.00, secured by vendor’s and deed of trust
liens. (1 CR 17, ¶ 4(C)) The Seller Financing Addendum to the Farm and
Ranch Contract states that this promissory note will have an interest rate of
4.5% and will be payable to the Marxes in monthly installments of $12,048.64
beginning 30 days after the date of the promissory note and continuing
thereafter for 180 months. (1 CR 25, ¶ (C)(2))
The Farm and Ranch Contract contains the following “Special
Provisions”:
Buyer is a licensed real estate agent. Buyer and Seller agree to
the following details to be worked out before closing: 1. Seller
will survey out approximately 21 acres which will not [be]
convey[ed] with this sale. 2. Seller will sign a first right of refusal
and option agreement for the 21 acres which will allow buyer to
purchase the property in the future. 3. Seller will retain an
easement for access to the 21 acres. 4. Seller agrees to fence
the 21 acres within 120 days after closing.
(1 CR 20, ¶ 11)
The Farm and Ranch Contract provides that FDP shall deposit
24
$10,000.00 earnest money upon execution of the contract. (1 CR 17, ¶ 5)
The Farm and Ranch Contract further provides that FDP shall pay to the
Marxes a $100.00 Option Fee within two days after the effective date of the
contract, which granted to FDP the unrestricted right to terminate the contract
within 15 days. (1 CR 23, ¶ 23) FDP paid the $10,000.00 earnest money and
$100.00 Option Fee by checks dated January 26, 2012. (1 CR 31)
On page 3 of Appellants’ Brief, the Marxes claim that “the contract was
prepared by appellee.” The Marxes cite to page 163 of the clerk’s record. (1
CR 163) Page 163 of the clerk’s record is a letter from the Marxes’ lawyer,
Diego A. Lopez, that was attached to Diego Lopez’s motion for summary
judgment. (1 CR 116-172) That letter was never adopted by the Marxes in
connection with their various motions and objections. Diego Lopez is not a
party to this appeal or to the final judgment and his motion for summary
judgment (that was never ruled on) is not at issue in this appeal.
B. The Marxes Breach The Farm And Ranch Contract
After the Marxes executed the Farm and Ranch Contract, they
contacted a new attorney, Diego A. Lopez, that led to the Marxes refusing to
close on the contract and sell the real property to FDP. (2 CR 447-448) On
Page 4 of the Appellants’ Brief, they assert the following:
25
Recognizing that the contract failed to describe the tract of land
to be sold that complied with the statute of frauds, appellants
repudiated the contract prior to the closing date.
This statement is not supported by any citation to the record and there is
nothing in the record that supports the above statement. In their August 4,
2014, response to FDP’s request for specific performance, the Marxes
judicially admitted that there was no legitimate statute of frauds defense in
this case, stating as follows: “The defect which exist[ed] prior to the
mediation/arbitration, that is, the lack of a valid description of the land to be
sold, has now been resolved ...” (2 CR 490) The Marxes do not assert a
statute of frauds argument on appeal. Texas has long recognized that where
a contract or deed initially fails to contain a legal description that satisfies the
statute of frauds, the parties may by their subsequent conduct or agreement
provide a legal description that complies with the statute of frauds. See
Reserve Petroleum Co. v. Hodge, 213 S.W.2d 456, 457-459 (Tex. 1948);
Foster v. Lessing, 346 S.W.2d 939, 942-43 (Tex. Civ. App.–Waco 1961, writ
ref’d n.r.e.); Hastings v. Pichinson, 370 S.W.2d 1, 4 (Tex. Civ. App.–San
Antonio 1963, no writ).
C. FDP Sues The Marxes
On March 12, 2012, FDP sued the Marxes and their attorney, Diego A.
26
Lopez. (1 CR 1-33) FDP sued the Marxes for specific performance and
damages. (1 CR 9-11) FDP also sued the Marxes for fraud and sought to
recover exemplary damages. (1 CR 11-12, 13) Debbie Marx answered on
April 5, 2012. (1 CR 33-34). She was represented by Diego Lopez. (1 CR
33) He was disqualified from representing the Marxes on June 21, 2012. (1
CR 96)
FDP filed its First Amended Original Petition on May 31, 2012. (1 CR
57-90) Robert Marx evaded service of process, requiring an order for
substituted service on him. (1 CR 91-95, 97) Robert Marx filed his original
answer on August 8, 2012. (1 CR 98) He was represented by attorney
Manuel Pelaez-Prada. (1 CR 99) Debbie Marx filed a second original answer
on September 6, 2012. (1 CR 101-102) She was also represented by
Pelaez-Prada. (1 CR 102)
On May 7, 2013, the Marxes moved to substitute new counsel. (1 CR
176-177) On May 8, 2013, the trial court signed an agreed order that
substituted attorneys Gilbert Vara, Jr. and Gerald D. McFarlen as attorneys
of record for the Marxes. (1 CR 178-179)
D. FDP And The Marxes Settle
The parties mediated on May 22, 2013, and August 27, 2013. (1 CR
27
180-181) Effective August 27, 2013, the parties executed a Mediated
Settlement Agreement. (1 CR 182-188; Tab “3” to Appendix) The Mediated
Settlement Agreement was filed with the district clerk on September 3, 2013.
(1 CR 182) It is signed by the Marxes and their attorneys. (1 CR 185, 187)
The parties agreed to execute and file an agreed order dismissing all claims
with prejudice and agreed that, except for the undertakings in the Mediated
Settlement Agreement, all claims that were asserted or could be asserted by
the parties against each other were mutually released. (1 CR 182, ¶ 3; 1 CR
183, ¶ 5)
Paragraph 4 of the Mediated Settlement Agreement provided as follows:
4. The parties agree as follows:
a. Plaintiffs purchase 421 more or less acres from
Defendants for $5,000.00 per acre. Closing per
existing EMK – October 1, 2013.
b. Defendants retain his “homestead property” for period
of no longer than 8 years after Closing.
c. Homestead Property will be determined by the
parties, based on home and fenced areas sufficient to
maintain existing horse/cattle operation, but not to
exceed 100 acres. If the parties cannot agree on
what constitutes Homestead Property, the mediator
will act as arbitrator and make the determination.
Defendants’ use of the Homestead Property will not
unreasonably restrict Plaintiffs’ use of the property
being purchased.
28
d. Plaintiffs shall have the exclusive option to purchase
the Homestead Property, at the above stated price,
for a period of 120 days from the earlier of:
(i) written notice from the Defendant,
(ii) the death of the last surviving Defendant,
(iii) or the expiration of 8 years from closing.
(1 CR 182-183)
On page 6 of the Appellants’ Brief, they assert that “the mediated
settlement agreement also failed to meet the requirement of the statute of
frauds in that it failed to provide a description of the land to be sold by
appellants to appellee.” As previously discussed by FDP on page 26 herein,
the Marxes judicially admitted that there was no legitimate statute of frauds
defense in this case (2 CR 490) and they do not assert a statute of frauds
argument on appeal.
E. The Marxes Breach The Mediated Settlement Agreement
On September 12, 2013, the Marxes proceeded to change lawyers
again. (1 CR 189-190) The Marxes sought to discharge Gilbert Vara, Jr. and
to substitute attorney Kirk Dockery for him. Id. There was no order signed
authorizing the substitution of counsel for the Marxes until October 4, 2013.
(2 CR 292)
29
On the morning of September 16, 2013, FDP filed its “Motion to Enforce
Mediated Settlement Agreement.” (1 CR 203-228) Despite the fact that the
trial court had signed no order that allowed for substitution of counsel, the
Marxes’ new lawyer filed “Defendants’ Objections to Mediated Settlement
Agreement” in the late afternoon on September 16, 2013. (1 CR 191-202)
On September 30, 2013, FDP filed its Second Amended Original Petition
specifically pleading the execution of the Mediated Settlement Agreement.
(1 CR 230-271)
On October 1, 2013, the Marxes gave notice of hearing for their motion
for substitution for their most recent change of attorneys. (2 CR 291) On
October 4, 2013, the trial court signed an order allowing attorney Kirk Dockery
to substitute for attorneys Gilbert Vara, Jr. and Gerald D. McFarlen, who were
discharged. (2 CR 292) The Marxes claim on page 8 of the Appellants’ Brief
that they filed on October 14, 2013, a Supplemental Answer which “asserted
sixteen affirmative defenses.” This Supplemental Answer (2 CR 293-297) is
the subject of the Marxes’ Third Point of Error, Appellants’ Brief, p. 22, which
complains that the trial court erred in rendering final judgment in favor of FDP
because FDP did not file a no-evidence motion for summary judgment on
these affirmative defenses. As FDP explains on pages 77-81 herein, a
30
plaintiff moving for summary judgment is under no duty to negate affirmative
defenses.
On October 23, 2013, the trial court ordered the parties back to
mediation. (2 CR 322) On page 9 of the Appellants’ Brief, the Marxes
contend that “upon hearing of the defects in the [Mediated Settlement
Agreement], the trial court stopped the hearing and ordered the parties to
return to mediation to attempt to resolve those issues.” There is nothing in
the record to support this contention made by Appellants and they cite only
to 2 CR 322, which is the trial court’s October 23, 2013, handwritten order
which states simply that “the Court Orders the parties back to mediation
pursuant to the terms of the Settlement Agreement on November 14, 2013,
beginning at 9:00 a.m.” Paragraph 8 of the Mediated Settlement Agreement
provides that the parties agree to further mediation if disputes arise with
regard to interpretation and/or performance of the agreement, including the
form of the documents to be executed. (1 CR 183)
The Marxes also argue on page 9 of their brief, citing only to the
October 23, 2013, order (2 CR 322), that “the trial court failed and refused to
acknowledge that appellants’ consent to the MSA had been revoked.” As
FDP explains on page 37 herein, the withdrawal or revocation of consent to
31
a settlement agreement does not prevent enforcement of the settlement
agreement by the trial court.
On November 14, 2013, the trial court ordered the parties to proceed
with arbitration with respect to the designation of the “Homestead Property”
as described in Paragraph 4(c) of the Mediated Settlement Agreement. (2 CR
323) On page 10 of the Appellants’ Brief, the Marxes claim they “objected to
arbitration.” The Marxes filed no written objection to arbitration in the trial
court and have made no argument in the trial court or on appeal that they
could not be compelled to arbitrate under Paragraph 4(c) of the Mediated
Settlement Agreement.
F. The Arbitrator Rules And His Rulings Are Confirmed
The arbitrator issued his ruling on April 14, 2014, making findings for the
100 acre tract to be retained by the Marxes (subject to the purchase option
granted to FDP) and the 417.335 acres to be sold by the Marxes to FDP. (2
CR 355-356; Tab “4” to Appendix) The arbitrator’s ruling included a map and
metes and bounds descriptions of the 100 acre and 417.335 acre tracts. (2
CR 357-362) On May 8, 2014, FDP filed its “Motion and Application To
Confirm Arbitration Award.” (2 CR 324-349) The Marxes objected to “items
3 and 4” of the arbitrator’s ruling. (2 CR 351) Item 3 of the ruling stated that
32
all other terms and conditions of the Mediated Settlement Agreement remain
the same, except the closing date which will be at the earliest possible date.
(2 CR 355) Item 4 assessed costs of the arbitration. (2 CR 356)
On May 12, 2014, the trial court signed an order confirming the
arbitration award. (2 CR 353-363; Tab “4” to Appendix) The trial court
confirmed the arbitrator’s metes and bounds legal descriptions and awarded
arbitrator’s fees, surveyor’s fees, attorneys’ fees and expenses to FDP of
$1,800.00, $11,539.43, $17,202.50 and $486.00. (2 CR 353-354) The
Marxes did not move to vacate the arbitration award and have made no
appellate challenge to the arbitrator’s award or to the order confirming the
arbitrator’s award. The Marxes, on page 11 of the Appellants’ Brief, again
complain of the trial court’s action with respect to confirmation of the
arbitration ruling because they had revoked their consent to the settlement.
They have not challenged on appeal the May 12, 2014, order on this or any
other ground and Texas law permits enforcement of a settlement agreement
even where consent to settlement has been withdrawn or revoked. See Brief
of Appellee, p. 37, herein.
G. The Trial Court Orders Specific Performance
On July 9, 2014, FDP moved for a final summary judgment for specific
33
performance (2 CR 364-475), which the trial court granted by order and final
judgment signed on August 11, 2014. (2 CR 532-556; Tab “1” to Appendix)
As part of its summary judgment proof, FDP presented affidavits from the
managing member of the general and limited partners of FDP (Larry
Friesenhahn) and an Executive Vice President of Security State Bank, who
testified as follows:
a) FDP was willing to close the sale on an Owner Finance
basis or on a Cash to Seller basis (2 CR 447, ¶ 4),
b) FDP had a certificate of deposit in the amount of
$434,014.50 with Sun Trust Bank (2 CR 448, ¶ 5),
c) Security State Bank had lines of credit in the amount of
$1,737,000.00 available for immediate advance to Larry
Friesenhahn for personal or business uses, including FDP
(2 CR 449, ¶ 3),
d) Security State Bank was interested in financing the
purchase price of 501 acres for $5000.00 per acre (2 CR
449, ¶ 4).
The affidavit from the FDP principal, Mr. Friesenhahn, stated that FDP was
“ready, able and willing to purchase the subject property and close and
perform the Mediated Settlement Agreement.” (2 CR 447, ¶ 4)
The Marxes’ summary judgment response did not include any evidence
or argument in support of their affirmative defenses. (2 CR 486-516) The
Marxes asserted the following arguments in opposition to FDP’s request for
34
specific performance:
a) there was an ambiguity between the Farm and Ranch
Contract and the Mediated Settlement Agreement (2 CR
487-494);
b) the option agreement was invalid because of lack of
consideration (2 CR 494-495);
c) FDP, LP lacked standing to prosecute the suit (2 CR 495-
497); and
d) FDP, LP failed to act through its general partner (2 CR 497-
498).
On page 13 of the Appellants’ Brief, the Marxes complain that FDP “did
not file a no-evidence motion for summary judgment regarding the issues of
the many affirmative defenses asserted [by] appellants in their most recent
pleadings.” As FDP explains in responding to the Marxes’ Third Point of
Error, a plaintiff moving for summary judgment is not under any obligation to
negate affirmative defenses.” See Brief of Appellee, pp. 77-81, herein.
The Marxes complain on page 13 of their Appellants’ Brief of the
supplement to FDP’s motion for summary judgment that was filed on August
5, 2014. (2 CR 517-531) The supplement addressed arguments made by the
Marxes that FDP lacked standing and that FDP failed to act through its
general partner. (2 CR 519-520) The Marxes have not asserted these
arguments on appeal or raised any appellate error with respect to FDP’s
35
August 5, 2014, filing.
The trial court signed a final judgment in favor of FDP on August 11,
2014. (2 CR 532-556; Tab “1” to Appendix) The January 27, 2012, Farm and
Ranch Contract obligated FDP to pay to the Marxes a purchase price of
$1,875,000.00 (500 acres at $3,750.00 per acre), consisting of $300,000.00
cash and a promissory note for $1,575,000.00, payable in monthly
installments of $12,048.64 for 180 months, at 4.5% interest. (1 CR 16, 17,
25) The August 27, 2013, Mediated Settlement Agreement increased the
purchase price payable by FDP to $5000.00 per acre for 421 acres. (1 CR
182-183) The final judgment ordering specific performance obligates FDP to
pay to the Marxes a purchase price of $2,086,675.00, consisting of
$300,000.00 cash and a promissory note for $1,786,675.00, payable in
monthly installments of $13,667.94 for 180 months at 4.5% interest. (2 CR
553, 542-546)
STANDARD OF REVIEW
A. Mediated Settlement Agreements
The trial court, in granting FDP’s motion for summary judgment,
enforced the Mediated Settlement Agreement entered into by FDP and the
Marxes and awarded the remedy of specific performance. (2 CR 532-556;
36
Tab “1” to Appendix) In Saenz v. Martinez, No. 04-07-00339-CV, 2008 WL
4809217 at * 4 (Tex. App.–San Antonio Nov. 5, 2008, no pet.) (mem. op.), this
Court discussed the enforcement of a written settlement agreement where
one party withdraws its consent before judgment and held in that case the
“subsequent withdrawal of consent to the agreement, though undisputed,
does not raise a fact issue negating the enforceability of the agreement and
precluding summary judgment.”
A written settlement agreement may be enforced even if one party
withdraws its consent before judgment is rendered on the
agreement. Mantas v. Fifth Ct. of App., 925 S.W.2d 656, 658
(Tex. 1996) (orig. proceeding) (per curiam) (citing Padilla v.
LaFrance, 907 S.W.2d 454, 461 (Tex. 1995)). Where consent is
lacking, a trial court may not render an agreed judgment on the
settlement agreement, but the party seeking enforcement may
properly pursue a separate breach of contract claim. Mantas, 925
S.W.2d at 658. This mode of enforcement is based on rule 11 of
the Texas Rules of Civil Procedure, the requisites of which are
necessary for entry of any judgment enforcing a settlement
agreement. Padilla, 907 S.W.2d at 460 (citing Kennedy v. Hyde,
682 S.W.2d 525, 528 (Tex. 1984)).
Id. at * 3. See also Tex. Civ. Prac. & Rem. Code Section 154.071(a) (“If the
parties reach a settlement and execute a written agreement disposing of the
dispute, the agreement is enforceable in the same manner as any other
written contract.”).
Texas law strongly favors and encourages voluntary settlement and
37
orderly dispute resolution. Wright v. Sydow, 173 S.W.3d 534, 551 (Tex.
App.–Houston [14th Dist.] 2004, pet. denied), citing Schlumberger Technology
Corporation v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997). The El Paso
Court of Appeals has stated that “[t]he law has always favored the resolution
of controversies through compromise and settlement rather than through
litigation and it has always been the policy of the law to uphold and enforce
such contracts if they are fairly made and are not in contravention of some law
or public policy.” Hernandez v. Telles, 663 S.W.2d 91, 93 (Tex. App.–El Paso
1983, no writ).
This strong public policy in favor of voluntary settlements is reflected in
Section 154.002 of the Civil Practice and Remedies Code. Further, it is the
responsibility of all trial and appellate courts and their court administrators to
carry out the policy under Section 154.002. Tex. Civ. Prac. & Rem. Code
Ann. Section 154.003.
B. Specific Performance
Specific performance is an equitable remedy that may be awarded at
the trial court’s discretion upon a showing of breach of contract. Kress v.
Soules, 261 S.W.2d 703, 704 (Tex. 1953); Stafford v. S. Vanity Magazine,
Inc., 231 S.W.3d 530, 535 (Tex. App.–Dallas 2007, pet. denied). Specific
38
performance is not a separate cause of action, but rather it is an equitable
remedy used as a substitute for monetary damages when such damages
would not be adequate. Stafford, 231 S.W.3d at 535; Scott v. Sebree, 986
S.W.2d 364, 368 (Tex. App.–Austin 1999, pet. denied). “Because of the
unique nature of real property, breach of a contract to sell real property may
generally be enforced by specific performance.” Pickard v. LJH Enterprises,
No. 01-07-01105-CV, 2010 WL 1493105 at * 3 (Tex. App.–Houston [1st Dist.]
April 15, 2010, no pet.) (mem. op.), citing Rus-Ann Dev., Inc. v. ECGC, Inc.,
222 S.W.3d 921, 927 (Tex. App.–Tyler 2007, no pet.) and Scott v. Sebree,
986 S.W.2d at 369-70.
C. Contract Formation And Unenforceability
The principal argument made by the Marxes in their First Point of Error
is that the trial court erred in rendering final judgment in favor of FDP and
ordering specific performance because there is no enforceable agreement in
this case because there was “no meeting of the minds” between FDP and the
Marxes as to material and essential terms. See Appellants’ Brief, pp. 15-19.
As explained in more detail on pages 43-48 herein, the Marxes did not make
a “no meeting of the minds” argument in their summary judgment response.
(2 CR 486-516) The only argument made by the Marxes was their assertion
39
that the parties’ agreement could not be specifically enforced because there
was an ambiguity with respect to the financing provisions in the Farm and
Ranch Contract created by the increased purchase price agreed to in the
Mediated Settlement Agreement. (2 CR 487-494)
“The enforceability of a settlement agreement is a question of law.”
Eastman Gas Company, L.L.C. v. Goodrich Petroleum Company, L.L.C., __
S.W.3d __, No. 06-13-00128-CV, 2015 WL 170234 at * 3 (Tex.
App.–Texarkana Jan. 14, 2015, no pet. h.), citing McCalla v. Baker’s
Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013) and Martin v. Martin,
326 S.W.3d 741, 746 (Tex. App.–Texarkana 2010, pet. denied). The issue
of whether a settlement agreement fails for lack of essential terms is a
question of law. See General Metal Fabricating Corporation Corp. v.
Stergiou, 438 S.W.3d 737, 744 (Tex. App.–Houston [1st Dist.] 2014, no pet.)
(collecting cases). Whether an agreement fails for indefiniteness is a
question of law. Stergiou, 438 S.W.3d at 752, citing to America’s Favorite
Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.–San Antonio 1996,
writ denied).
D. Consideration
The Marxes’ Second Point of Error argues that the option to purchase
40
the Homestead Property granted to FDP by the Marxes is not supported by
consideration. See Appellants’ Brief, pp. 19-21. This Court has stated that
what constitutes consideration is a question of law, Brownwood Ross Co. v.
Maverick Cnty., 936 S.W.2d 42, 45 (Tex. App.–San Antonio 1996, writ
denied), and that the existence of a written contract presumes consideration
for its execution. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.–San
Antonio 2005, no pet.).
SUMMARY OF THE ARGUMENT
The Mediated Settlement Agreement, which modified the Farm and
Ranch Contract, is an enforceable contract and does not fail for lack of mutual
assent, indefiniteness or failure of a meeting of the minds. The “no meeting
of the minds” argument made by the Marxes in their First Point of Error on
pages 15-19 of their Appellants’ Brief was not made in the trial court. The trial
court properly exercised its discretion in enforcing the Mediated Settlement
Agreement and awarding the equitable remedy of specific performance. The
trial court was authorized under Texas law to enforce the Mediated Settlement
Agreement even where the Marxes withdrew their consent to the settlement.
In the Marxes’ Second Point of Error, Appellants’ Brief, pp. 19-21, they
argue that the option to purchase the Homestead Property is not supported
41
by any consideration. This argument fails as a matter of law. Where a
contract that includes an option is supported by a sufficient consideration, the
option is valid and enforceable, even if there is no independent or specific
consideration for the option and even if there is no independent or specific
consideration recited for the option.
The Marxes’ Third Point of Error, Appellants’ Brief, p. 22, claims that
they asserted various affirmative defenses and that FDP failed to move for
summary judgment on such affirmative defenses. The Marxes’ Third Point of
Error is inadequately briefed and therefore waived. Further, their argument
is flatly contrary to Texas law. FDP had no obligation to move for summary
judgment on the Marxes’ affirmative defenses. The Marxes had the obligation
to present evidence to support their defenses and failed to present any such
evidence.
ARGUMENT
A. The Mediated Settlement Agreement Was Enforceable And The
Trial Court Did Not Err In Granting FDP’s Motion For Final
Summary Judgment (Responsive to Appellants’ Brief, pp. 15-19)
I. Introduction
The Marxes initially argue that they withdrew their consent to the
Mediated Settlement Agreement. See Appellants’ Brief, pp. 15-16. The
42
withdrawal of consent to settlement by the Marxes did not prohibit the trial
court from enforcing the settlement for the reasons stated by this Court in
Saenz v. Martinez, 2008 WL 4809217 at * 3-4, quoted on page 37 of this
Brief.
The Marxes next argue that the Mediated Settlement Agreement is
unenforceable or invalid because of lack of mutual assent, indefiniteness or
no meeting of the minds. See Appellants’ Brief, pp. 18-19 (“Because the
terms of the Seller Financing Addendum to the Farm and Ranch Contract
were not amended by the mediated settlement agreement, there has been no
meeting of the minds between appellants and appellee as to those material
and essential terms. The mediated settlement agreement is therefore not a
complete contract and is rendered unenforceable.”).
The Marxes, on pages 15-16 of the Appellants’ Brief, cite to their
October 14, 2013, “Supplemental Answer” (2 CR 293-297) for this “no
meeting of the minds” argument. But, the Marxes did not make this argument
in their summary judgment response. (2 CR 486-516) Instead, the Marxes
argued that there was an ambiguity with respect to the financing provisions
created by the Mediated Settlement Agreement. (2 CR 487-494) At page 3
of their summary judgment response, the Marxes asserted that there was a
43
“contradiction” between the new sales price in the Mediated Settlement
Agreement and owner financing provisions of the Farm and Ranch Contract.
(2 CR 488) On pages 5 and 6 of their summary judgment response, they
further discuss the “contradiction,” stating that paragraph 4a of the Mediated
Settlement Agreement “creates the patent ambiguity.” (2 CR 490) They
continue on page 6 of their summary judgment response discussing “the
patent ambiguity” (2 CR 491), on page 7 “this ambiguity” and “patent
ambiguity” (2 CR 492), and on page 8 “the obvious ambiguity” and “patent
ambiguity.” (2 CR 493)
The Marxes’ Appellants’ Brief repeats these arguments of contractual
ambiguity in the Statement of Facts, even though the Marxes do not make the
ambiguity argument in their First Point of Error.
The mediated settlement agreement also created an ambiguity
between it and the Farm and Ranch Contract.
###
[T]he mediated settlement agreement created an ambiguity as to
the manner in which the sale price was to be paid and the terms
of any seller-financing.
###
Appellants objected to arbitration because they recognized that
a settlement pursuant to the MSA was unlikely due to the
ambiguities therein ...
44
See Appellants’ Brief, pp. 6-7, 9, 10.
There is a difference under Texas law between contractual ambiguity
and contractual indefiniteness. See Sifuentes v. Carrillo, 982 S.W.2d 500,
504 (Tex. App.–San Antonio 1998, pet. denied), citing America’s Favorite
Chicken Co. v. Samaras, 929 S.W.2d at 628 (“There is a significant legal
difference between ambiguity and indefiniteness.”). A contract containing an
ambiguity is not unenforceable. Ambiguity results when the intention of the
parties is expressed in language susceptible of more than one meaning. J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Interpreting an
ambiguous contract is a factual issue. Id. In contrast, an agreement that is
indefinite because it fails to contain all material and essential terms is
unenforceable. See America’s Favorite Chicken Co. v. Samaras, 929 S.W.2d
at 622. In the trial court, the Marxes argued ambiguity, not indefiniteness. (2
CR 487-494) This Court cannot reverse a summary judgment based on an
argument made on appeal that the Marxes did not make in their summary
judgment response. See In re Blakenship, 392 S.W.3d 249, 255 (Tex.
App.–San Antonio, 2012, no pet.).
Under Texas law, a modified contract creates a new contract that
includes the new, modified provisions and the unchanged old provisions.
45
Even if there was a contradiction or ambiguity with respect to the financing
terms of the Farm and Ranch Contract caused by the increased purchase
price of the Mediated Settlement Agreement, the parties’ agreement was still
enforceable and FDP was entitled to purchase the property for $2,086,675.00
and the trial court had the right to order specific performance that was not in
strict compliance with the parties’ agreement.
Any conflict between the financing terms in the Farm and Ranch
Contract and the language in the Mediated Settlement Agreement creates, at
best, a contractual ambiguity rather than contractual indefiniteness.
Ambiguous and unambiguous contracts are both enforceable under Texas
law. A contract with an ambiguity is not unenforceable because of
indefiniteness. A contract is not indefinite if the contract terms are reasonably
certain to the extent they provide a basis for determining the existence of a
breach and for giving an appropriate remedy. McCalla v. Baker’s
Campground, Inc., 416 S.W.3d at 418 (“If a court was trying to enforce the
settlement agreement, it could find all the terms necessary for its
enforcement.”); Stergiou, 438 S.W.3d at 751. The Marxes do not and cannot
contend that the Mediated Settlement Agreement is not reasonably certain or
indefinite with respect to the obligation of FDP to pay $2,086,675.00 in return
46
for the 421 acres and the option on the Homestead Property.
The Marxes and FDP executed written agreements that contained
essential terms; the Marxes just want out of the agreements and the bargains
that were struck. The Marxes make no argument that they were harmed or
injured by the trial court’s final judgment which ordered that they were to
receive $1,619.30 more per month from FDP under the Mediated Settlement
Agreement which modified the Farm and Ranch Contract. They simply
contend, erroneously, that the Mediated Settlement Agreement is
unenforceable. There is nothing “indefinite” about the agreements that
preclude enforcement.
At most, the Marxes’ arguments implicate the doctrine of ambiguity,
which is an argument that they made in their summary judgment response (2
CR 487-494), but have abandoned on appeal. See Appellants’ Brief, pp. 15-
19. An executed contract that contains an ambiguity is not unenforceable
because of the ambiguity. The Marxes do not make the ambiguity argument
on appeal because they seek to invalidate the agreements in their entirety
based on indefiniteness. Under no circumstances do they want any
enforcement of the agreements. The Marxes’ “no meeting of the minds”
argument fails under Texas law. As this is the only argument made on appeal
47
– which they did not make in the trial court – the overruling of this argument
requires the affirmance of the trial court’s final judgment.
II. The Marxes’ Arguments Reflect A Lack Of Understanding Of
Texas Law Governing Contract Modification
“Modification of a contract is some change in an original agreement
which introduces a new or different element into the details of the contract but
leaves its general purpose and effect undisturbed.” See Enserch Corp. v.
Rebich, 925 S.W.2d 75, 83 (Tex. App.–Tyler 1996, writ dism’d). In BACM
2001-1 San Felipe Road Ltd. Partnership v. Trafalgar Holdings I, Ltd., 218
S.W.3d 137, 145-146 (Tex. App.–Houston [14th Dist.] 2007, pet. denied), the
Court of Appeals explained as follows:
But, a modification to a contract need not restate all the essential
terms of the original agreement. A modification alters only those
terms of the original agreement to which it refers, leaving intact
those unmentioned portions of the original agreement that are not
inconsistent with the modification. See Boudreaux Civic Ass’n v.
Cox, 882 S.W.2d 543, 547-48 (Tex. App.–Houston [1st Dist.]
1994, no writ) (“A modification to a contract creates a new
contract that includes the new, modified provisions and the
unchanged old provisions.”) (emphasis added).
Under Texas law, conflicts between the provisions of an original contract
and a modification do not make the modified agreement “unenforceable.”
There are specific rules for such situations. In Saturn Capital Corp. v. Dorsey,
No. 01-04-00626-CV, 2006 WL 1767602 at * 4 (Tex. App.–Houston [1st Dist.]
48
2006, pet. denied), the Court of Appeals discussed the issue as follows:
That is, when the second contract does not state whether or to
what extent it supersedes the parties’ first contract, and when
some provision of the two contracts conflicts, the conflicting
provision of the later contract prevails. In re Palm Harbor Homes,
Inc., 129 S.W.3d at 643; Courage Co., L.L.C. v. Chemshare
Corp., 93 S.W.3d 323, 333 (Tex. App.–Houston [14th Dist.] 2002,
no pet.). The remainder of the earlier contract not in conflict with
the later one may still be enforced. Courage Co., L.L.C., 93
S.W.3d at 333. These rules also apply when, as here, one of the
contracts is a promissory note.
The Marxes cite no authority, Texas or otherwise, which holds that a
court may find an agreement unenforceable because, in modifying the
agreement, a conflict with the language of the original contract resulted. At
most, that would create an ambiguity, which argument the Marxes do not
make on appeal. See Appellants’ Brief, pp. 15-19. The real issues in this
case are contract interpretation and contract enforcement, not contract
formation. The “no meeting of the minds” arguments made by the Marxes do
not apply to the written, executed agreements in this case.
III. The Trial Court Did Not Abuse Its Discretion In Awarding
Specific Performance
Specific performance is more readily available as a remedy for the sale
of real estate than for the sale of personal property. See Scott v. Sebree, 986
S.W.2d at 369-370. Damages are generally believed to be inadequate in
49
connection with real property. Id. at 370. Specific performance is commonly
granted where a valid contract to purchase real property is breached by the
seller. Id.; see also Estate of Griffin v. Sumner, 604 S.W.2d 221, 225 (Tex.
Civ. App.–San Antonio 1980, writ ref’d n.r.e.).
The trial court ordered specific performance of the sale of the real
property by the Marxes to FDP because the Marxes breached the Mediated
Settlement Agreement. (2 CR 532-556) The Marxes do not argue on appeal
that they did not breach the Mediated Settlement Agreement. Their sole
argument is the alleged “unenforceability” of the agreement because of
“indefiniteness.”
To the extent that the Marxes believe that the final judgment awarding
specific performance is not in compliance with or consistent with the parties’
agreement, they have not made such argument on appeal. They argue only
unenforceability based on no meeting of the minds. Texas law affords
discretion to the trial court in ordering the remedy of specific performance,
even if the award of specific performance is not in strict compliance with the
underlying agreement.
In Estate of Griffin v. Sumner, 604 S.W.2d at 225, this Court discussed
its earlier decision in Wilson v. Beaty as follows:
50
In Wilson v. Beaty, 211 S.W. 524 (Tex. Civ. App.–San Antonio
1919, writ ref’d), a case involving specific performance of a
contract for the sale of land, this court said:
Where a contract is in writing, is certain in its terms,
is fair and just in its provisions and capable of being
enforced with fairness to both parties, it is a matter for
enforcement in a court of equity ...
Absolute and positive certainty as to the terms of the
contract is not required, but there must be reasonable
certainty as to the subject-matter, the stipulations, the
purposes, and the circumstances under which the
contract was made ...
The contract is certain and definite in its terms if it
leaves no reasonable doubt as to what the parties
intended and no reasonable doubt of the specific
thing equity is called upon to have performed.
211 S.W. at 526-527.
In Paciwest, Inc. v. Warner Alan Properties, LLC, 266 S.W.3d 559, 570
(Tex. App.–Fort Worth 2008, pet. denied), the award of specific performance
was not in literal compliance with the parties’ agreement, because the buyer
could not obtain financing and chose to pay the full purchase price in cash.
The Court of Appeals held that the award of specific performance was proper
in such circumstances and noted that the analysis of materiality of financing
terms for purposes of contract enforcement is different from the analysis for
purposes of contract formation.
51
Further, even if the writings between the parties are not sufficient
to show an agreement by Paciwest to an all-cash transaction,
provisions in an earnest money contract that provide for
termination of a contract if the buyer is unable to obtain financing
are solely for the benefit of the buyer and may be waived by the
buyer. See R. Conrad Moore & Assocs., Inc. v. Lerma, 946
S.W.2d 90, 94-95 (Tex. App.–El Paso 1997, writ denied); Renouf
v. Martini, 577 S.W.2d 803, 803-04 (Tex. Civ. App.–Houston [14th
Dist.] 1979, no writ). Thus, even a buyer who has not strictly
complied with the financing terms in an earnest money contract,
but who is nevertheless able to meet its obligations to close a
transaction, may enforce specific performance against a seller
who thereafter refuses to close the transaction on the ground that
the buyer did not obtain the financing on the express terms
provided for in the contract. See Advance Components, Inc. v.
Goodstein, 608 S.W.2d 737, 739-40 (Tex. Civ. App.–Dallas 1980,
writ ref’d n.r.e.); cf. Potcinske v. McDonald Prop. Invs., 245
S.W.3d 526, 530-31 (Tex. App.–Houston [1st Dist.] 2007, no pet.)
(distinguishing Advance Components and holding that analysis of
materiality of financing provisions for purposes of contract
enforcement differs from analysis for purposes of contract
formation).1
Id. at 570.
In Advance Components, Inc. v. Goodstein, 608 SW.2d 737 (Tex. Civ.
App.–Dallas 1980, writ ref’d n.r.e.), cited in the Paciwest decision, Advance
Components leased from Goodstein real property with an option to purchase.
Id. at 738. The purchase option contained a financing provision that required
Advance Components to assume the unpaid principal balance on a
1
Potcinske is a case relied upon by the Marxes. See Appellants’ Brief, p. 17. FDP
discusses the Potcinske decision on pages 58-60 herein.
52
$165,000.00 promissory note. Id. Advance Components was unable to
assume the note, and instead, arranged for third-party financing for the entire
purchase price. Id. at 739. Goodstein refused to close and the trial court
denied Advance Components’s request for specific performance. Id. In
reversing the trial court’s denial of specific performance, the Dallas Court of
Appeals first explained as follows:
In the early case of Farris v. Bennett’s Executors, 26 Tex. 568
(1863), our Supreme Court stated:
(I)t is the general rule, that, to entitle a party to
specific performance, he must show that he has been
in no default in not having performed the agreement,
and that he has taken all proper steps towards the
performance, on his part; yet, on the other hand,
though there has not been a strict legal compliance
with the terms of the contract, yet, if the
noncompliance does not go to the essence of the
contract, relief will be granted. Id. at 572.
The rule of the Farris case has been followed by our Supreme
Court for many years. Linch v. Paris Lumber & Grain Elevator
Co., 80 Tex. 23, 15 S.W. 208 (1891); McMillan v. Smith, 363
S.W.2d 437 (Tex. 1962). In the present case there has not been
a strict compliance with the terms of the contract by the plaintiff
in that plaintiff arranged to pay off the outstanding note rather
than to assume it.
Id. at 739.
The Court of Appeals then explained that the departure from the
contract will not prevent specific enforcement if it is not a material breach and
53
identified the factors for determining if there was a material breach. Id. at
739-740. After analyzing these factors, the Court concluded as follows:
Of the circumstances listed in this section, only the first three are
applicable under the facts and arguments in this case. Applying
those three “influential circumstances,” we hold that plaintiff’s
breach was not so material as to defeat its action for specific
performance. Under a decree of specific performance, defendant
will receive the substantial benefit which he could have
reasonably anticipated, the agreed price of his equity and
complete protection against his liability on the outstanding note,
and may be compensated by plaintiff for any damages he suffers
as a result of its minor breach.
Id. at 740. In the present case, the Marxes will similarly receive the
substantial benefits they could have reasonably anticipated from the
agreements they executed.
The Dallas Court of Appeals rejected Goodstein’s argument that specific
performance was improper because there had not been literal compliance
with the agreement.
Defendant argues that enforcing the contract without the exact
financing provisions specified therein will result in adverse tax
consequences to him and will deprive him of his rights as a
lienholder of the property. If that is so, he may be compensated
in damages for those consequences of plaintiff’s breach. With the
exception of literal compliance with the financing provisions,
plaintiff has fully performed under the contract. It attempted to
comply, but was unable to do so without obtaining a guaranty by
third persons. It then tendered the full purchase price in cash.
On these facts, refusal of a decree of specific performance
effectuates an unjust penalty or forfeiture and therefore, the
54
judgment of the trial court is reversed, and since no motion for
summary judgment was filed by plaintiff, the case is remanded for
further proceedings. If defendant pleads and proves any
damages because of plaintiff’s breach, the trial court may enter a
decree of specific performance that is conditioned on payment to
defendant of reasonable compensation in money. Farris v.
Bennett’s Executors, supra, at 575; see Restatement of the Law
of Contracts, s 375(3).
Id. The Marxes have never claimed they have been damaged by the specific
performance ordered by the trial court. (2 CR 486-516)
In Horner v. Bourland, 724 F.2d 1142, 1143-1144 (5th Cir. 1984)
(applying Texas law), Horner entered into a contract to purchase a mobile
home park from the Bourlands. The purchase price was $570,700.00 that
was to be paid by refinancing a loan and deed of trust in favor of FHA in the
amount of $455,700.00 and a promissory note in the amount of $115,000
from Horner, secured by a second deed of trust. Id. at 1144. The FHA loan
could not be refinanced and the FHA would not permit a second lien. Id.
Horner agreed to pay the entire amount in cash. Id. The Bourlands
would not agree. The federal district court denied Horner’s request for
specific performance, finding that “the parties had entered into the contract
under the mutually mistaken belief that the Bourlands’ FHA loan could be
recast, ... that because enforcement of the contract as written was impossible,
its enforcement would require the court to rewrite the contract for the parties,
55
... Horner's proposed escrow instructions materially altered the terms of the
contract and constituted counter offers; and that Horner made no written cash
offer for the property.” Id.
The Fifth Circuit Court of Appeals reversed, first discussing the standard
of discretion for granting specific performance.
The parties correctly point out that in general, a decree for
specific performance is not a matter of right, but is a matter
resting in the court’s judicial discretion. See, e.g., Kress v.
Soules, 152 Tex. 595, 261 S.W.2d 703, 704 (1953); Nash v.
Conatser, 410 S.W.2d 512, 519 (Tex. Civ. App.–Dallas 1966, no
writ). Nonetheless, in the proper circumstances the standard set
forth by the Texas Supreme Court in Bennett v. Copeland, 149
Tex. 474, 235 S.W.2d 605 (1951), is applicable:
“Mere hardship is not sufficient ground for denial of
the right to specific performance of a contract
otherwise subject to enforcement. ... Especially
where it was fairly and voluntarily assumed as part of
a contract. ... In this respect a contract for the sale
of land will be enforced as a matter of right,
regardless of its wisdom or folly, if fairly and
understandingly made. ... [C]ourts cannot arbitrarily
refuse specific performance of a contract, because
they deem it unwise, or because subsequent events
disclose that it will result in a loss to defendant; but to
justify the refusal of this relief it must appear that the
defendant had been misled and overreached to such
an extent that the contract is unconscionable.”
235 S.W.2d at 609 (quoting Annot., 65 A.L.R. 1st 75); accord
Kress v. Soules, supra (determination must be according to facts
of individual case; grant of specific performance must not operate
inequitably on defendant). In a case involving a contract for the
56
sale of real estate that is otherwise subject to enforcement and
where justification on the ground of inequity is lacking, it is an
abuse of the trial court’s discretion to refuse specific performance.
Id. at 1144-1145.
The Court of Appeals then discussed several Texas cases, including the
Advance Components decision, finding them dispositive of the request for
specific performance. The Fifth Circuit affirmed that specific performance
does not require strict compliance with the agreement. Id. at 1146-1147.
Advance Components is consistent, moreover, with other Texas
cases finding that a cash offer in lieu of contractually specified
financing provisions constitutes substantial compliance with the
contract. In Renouf v. Martini, 577 S.W.2d 803 (Tex. Civ.
App.–Houston 1979, no writ), the court granted specific
performance of a contract for the sale of real estate where the
buyer was unable to secure the financing pursuant to the terms
provided for in the contract and instead arranged full cash
financing. Accord Smith v. Nash, 571 S.W.2d 372 (Tex. Civ.
App.–Texarkana 1978, no writ).
We think that these cases are dispositive of the instant appeal.
Applying the Advance Components analysis to the case before
us, we think it is clear that no inequity would result from a grant of
specific performance. A cash payment would bestow upon the
Bourlands substantially the equivalent benefit – the assumption,
in either the legal or common usage of the term, of the FHA loan
coupled with a return of equity – for which they contracted.
Moreover, any adverse tax consequences incurred by the
defendants as a result of a cash payment may be compensated,
upon the payment of which the decree should be conditioned.
See Advance Components, supra.
Id. at 1146.
57
This is not a contractual indefiniteness or “no meeting of the minds”
case. At best, the Marxes claim there is a contradiction or ambiguity with
respect to the owner-financing provisions of the Farm and Ranch Contract
caused by the increased price of the Mediated Settlement Agreement.
Assuming that this Court were to find that the Marxes have preserved the
ambiguity argument on appeal and reverse on such basis, FDP would still be
afforded the opportunity to purchase under the executed documents based
on payment of all cash by FDP or third-party financing resulting in all cash
being paid to the Marxes by FDP and its lender.
IV. The Marxes’ Authorities Are Inapposite
The Marxes rely on three cases in support of their argument that there
was no mutual assent or no meeting of the minds between FDP and the
Marxes. The three cases are cited on page 17 of Appellants’ Brief: Smith v.
Thorne, No. 01-01-01241-CV, 2003 WL 21357297 (Tex. App.–Houston [1st
Dist.] June 12, 2003, no pet.) (mem. op.), Potcinske v. McDonald Property
Investments, Ltd., 245 S.W.3d 526 (Tex. App.–Houston [1st Dist.] 2007, no
pet.), and Garrod Investments, Inc. v. Schlegel, 139 S.W.3d 759 (Tex.
App.–Corpus Christi 2004, no pet.). None of those cases are factually similar
to the facts in this appeal.
58
Smith is a contract formation case. In Smith, the Court of Appeals
explained that the parties used an inapplicable earnest-money-contract form
and never agreed upon a method of financing or on the issue of financing.
In this case, there was evidence that Smith’s selection of an
inapplicable earnest-money-contract form created confusion and
misunderstanding between the parties. Smith’s explanation that
the “all-cash” option referred only to the fact that Smith would
receive the full amount of the sales price at closing was intended
to reassure appellees regarding questionable provisions in the
form used. The trial testimony clearly established that the sale of
the property was to be neither “all-cash” nor “owner-financed.”
Therefore, there is both legally and factually sufficient evidence
to support the trial court’s finding of fact number three.
Regarding findings of fact numbers one and six, the contract, on
its face, appears to show two different methods of payment:
paragraph 3.B indicates that a note is involved and is described
within the contract, and paragraph 4.A indicates that the
transaction will be an “all cash” sale. In addition, Smith and
Corbin both testified that Smith was aware of appellees’ attempts
to secure third-party financing and spoke with the mortgage
company on at least two occasions. This evidence is legally and
factually sufficient to support the trial court’s findings that the
parties never agreed upon a method of financing (number one)
and that there was no meeting of the minds on the issue of
financing (number six). We therefore uphold the court’s
conclusion of law that the parties did not reach agreement on a
material term of the contract.
2003 WL 21357297 at * 3.
Potcinske is an “offer/counter-offer” case where there was never a
signed contract and the buyer admitted that there was no meeting of the
59
minds regarding financing. 245 S.W.3d at 530. Relevant to this appeal, there
is an important discussion in Potcinske of the decision in Advance
Components, Inc. v. Goldstein and the fact that different considerations come
into play when determining the materiality of a finance provision in the context
of contract enforcement versus contract formation. Id. at 531. (“The court in
Advance Components determined whether the buyer’s failure to perform
agreed upon financing terms was a material breach of an already formed
contract. Here, we must determine whether a financing term is a material
term in the context of contract formation. We agree with McDonald Property
that different considerations come into play when determining the materiality
of a finance provision in each context.”)
Garrod Investments is actually a statute of frauds case where the
parties never signed an agreement enforceable under the statute because of
offers and unaccepted counter-offers. 139 S.W.3d at 765.
Any material change in a proposed contract constitutes a
counteroffer, which must be accepted by the other party for a
contract to exist. ... Where “negotiations” are in writing, as in this
case, the question of whether an offer was unconditionally
accepted is primarily a question of law for the court. ... Based on
the Schlegels’ summary judgment evidence and Garrod’s
appellate brief, we conclude that on November 17, Garrod
materially altered Myrna Schlegel’s offer and thus made a
counteroffer.
60
The Schlegels’ evidence shows that they never signed the
standard form contract after changes were made to it. We
conclude that the document therefore has the same status as if
Myrna Schlegel had never signed it. ... As a matter of law, the
standard form contract does not satisfy the Statute of Frauds and
cannot be enforced.
Id.
None of these contract formation cases support the Marxes’ argument
that the Mediated Settlement Agreement is unenforceable because of the
failure of a meeting of the minds. The Farm and Ranch Contract is a fully
integrated, executed written agreement containing all material and essential
terms. The Mediated Settlement Agreement is a valid, binding and
enforceable written agreement. Any ambiguity or contradiction between the
terms of the Farm and Ranch Contract and the Mediated Settlement
Agreement does not result in contractual indefiniteness or unenforceability.
Any complaints that the Marxes could have with the award of specific
enforcement are contract enforcement and interpretation issues that they
have not raised on appeal. The Marxes’ First Point of Error must be
overruled.
B. The Option That The Marxes Agreed To In The Mediated Settlement
Agreement Was Supported By Consideration (Responsive to
Appellants’ Brief, pp. 19-21)
The principal argument made by the Marxes in their Second Point of
61
Error is that the option for the Homestead Property is unenforceable because
it is not supported by any consideration. As explained below, the option is
supported by consideration and is valid and enforceable.
Multiple Texas cases have cited this Court for the principles that what
constitutes consideration is a question of law and the existence of a written
contract presumes consideration for its execution.
What constitutes consideration is a question of law, Brownwood
Ross Co. v. Maverick Cnty., 936 S.W.2d 42, 45 (Tex. App.–San
Antonio 1996, writ denied), and the existence of a written contract
presumes consideration for its execution. Doncaster v. Hernaiz,
161 S.W.3d 594, 603 (Tex. App.–San Antonio 2005, no pet.).
See Bryant v. Cady, 445 S.W.3d 815, 819 (Tex. App.–Texarkana 2014, no
pet.); Ayala v. Soto, No. 04-12-00860-CV, 2014 WL 1614281 at * 4 (Tex.
App.–San Antonio April 23, 2014, pet. filed) (mem. op.); see also Nolana
Development Ass’n v. Corsi, 682 S.W.2d 246, 250 (Tex. 1984) (consideration
presumed even if not apparent).
The Marxes do not dispute that they agreed in the Mediated Settlement
Agreement to grant FDP an option to purchase the Homestead Property. (1
CR 182-183) The Marxes do not contend that the exhibits attached to the trial
court’s final judgment awarding specific performance fail to accurately
document the terms of the option they agreed to. (2 CR 456) See Appellants’
62
Brief, pp. 19-20 (discussing Warranty Deed with Vendor’s Lien attached as
Exhibit “A” to final judgment that contains option terms).
The Farm and Ranch Contract was undisputedly supported by
consideration and FDP deposited the earnest money required by that
contract. (1 CR 16, 17, 31) The consideration recited in the Farm and Ranch
Contract and further reflected by the Mediated Settlement Agreement
constitute sufficient consideration for the option as a matter of law. There is
no requirement under Texas law for any independent consideration for the
option.
Numerous Texas courts, including this one, treatises and commentators
consistently state that a single consideration is sufficient to support multiple
promises bargained for in an agreement and that consideration for the
principal agreement is sufficient to support other promises that are subsidiary
or collateral to the principal agreement. See Mitchell v. Lawson, 444 S.W.2d
192, 196 (Tex. Civ. App.–San Antonio 1969, no writ); Saenz v. Martinez, 2008
WL 4809217 at * 4; Allen v. Am. Gen. Finance, Inc., 251 S.W.3d 676, 688
(Tex. App.–San Antonio 2007, pet. granted, judgment vacated pursuant to
settlement); Incore Construction, Inc. v. Incore, Inc., No. 04-08-00785-CV,
2009 WL 4827071 at * 3 (Tex. App.–San Antonio Dec. 16, 2009, pet. denied)
63
(mem. op.); Birdwell v. Birdwell, 819 S.W.2d 223, 228 (Tex. App.–Fort Worth
1991, writ denied); Reeves v. Lago Vista, Inc., 497 S.W.2d 950, 954 (Tex.
Civ. App.–Austin 1973, writ ref’d n.r.e.); Rickey v. Houston Health Club, 863
S.W.2d 148, 150 (Tex. App.–Texarkana 1993), writ denied n.r.e., 888 S.W.2d
812 (Tex. 1994); Fortner v. Fannin Bank in Windom, 634 S.W.2d 74, 77 (Tex.
App.–Austin 1982, no writ); Lee v. Lee, 275 S.W.2d 574, 576 (Tex. Civ.
App.–Texarkana 1955, writ dism’d); Prairie Producing Co. v. Martens, 705
S.W.2d 257, 260 (Tex. App.–Texarkana 1986, writ ref’d n.r.e.).
The Corbin treatise addresses this issue as follows:
A single and undivided consideration may be bargained for and
given as the agreed equivalent of one promise or of two promises
or of many promises. The consideration is not rendered invalid
by the fact that it is exchanged for more than one promise. If it
could support each of the promises taken separately it is
consideration for all of them ... Where an option is part of a
larger contract, the consideration for the contract is also
consideration for the option.
Joseph Perillo and Helen Bender, 2 Corbin on Contracts (rev. ed. 1995)
Section 5.12, pp. 56-57, 59. (emphasis supplied)
Comment a to the Restatement (Second) of Contracts, Section 80
(1981), states as follows:
[T]wo or more promises may be binding even though made for the
price of one. A single performance or return promise may thus
furnish consideration for any number of promises.
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These principles apply to option contracts.
In Echols v. Bloom, 485 S.W.2d 798, 800 (Tex. Civ. App.–Houston [14th
Dist.] 1972, writ ref’d n.r.e.), the Fourteenth Court of Appeals expressly held
that there was consideration for an option in a real estate contract even where
there was no express recital of consideration for the option.
It is axiomatic that to be valid and enforceable a contract
establishing an option must be supported by consideration. 13
Tex. Jur. 2d Contracts Sec. 38 (1960). Often the consideration is,
as here, a sum of money to be regarded as a parcel of the total
purchase price in the event the option-holder elects to buy. If an
option is contained in a contract which itself is supported by a
sufficient consideration, no independent consideration for the
option itself need appear. Colligan v. Smith, 366 S.W.2d 816
(Tex. Civ. App.–Fort Worth 1963, writ ref’d n.r.e.).
Id.
In Lower Colorado River Authority v. Naumann, 638 S.W.2d 195, 196-
197 (Tex. App.–Houston [1st Dist.] 1982, writ ref’d n.r.e.), the Naumanns
executed a deed to the LCRA conveying eight acres of surface estate and an
option for the LCRA to acquire a perpetual easement over a 100 foot wide
strip of land. The deed recited consideration of $8,000.00, which was paid by
the LCRA. Id. There was no separate recital of consideration for the option.
The trial court found that the option was not supported by consideration. Id.
at 196. Citing to Echols v. Bloom, the Court of Appeals held that the trial
65
court erred in finding that there was no consideration for the option. Id. at
199.
The decision in Echols v. Bloom has been cited by the Missouri Court
of Appeals to support its holding that there was consideration for an option
contained in a real estate installment contract. In Johnson v. Farrow, 594
S.W.2d 655, 657 (Mo. App. 1980), the Court stated as follows:
Defendants’ second point is that there was no consideration for
the option contract. In support of this contention defendants cite
cases involving separate option contracts. See for instance
Mohawk Real Estate Sales, Inc. v. Crecelius, 424 S.W.2d 86 (Mo.
App. 1968). Here the option was a part of the entire real estate
installment contract. The considerations flowing between the
parties were part of the entire contract. These mutual
considerations served to support the entire contract between the
parties including the option provision. Echols v. Bloom, 485
S.W.2d 798 (2, 3) (Tex. Civ. App. 1972); 1 Corbin on Contracts
Sec. 125. This is particularly apparent from the language of the
paragraph granting the option which states it is “in consideration
of the promises stated herein.” There was no lack of
consideration.
In Bridgeman v. Jefferson Amusement Co., 207 S.W.2d 138, 140 (Tex.
Civ. App.–Beaumont 1948, writ ref’d n.r.e.), Jefferson Amusement entered
into a lease with a 10 year primary term with an option to extend the lease for
five additional years. There was no specific consideration recited for the
option. Id. Bridgeman argued on appeal that the option to extend the lease
was not supported by any consideration. The Court of Appeals rejected this
66
argument, stating as follows:
Plaintiff has assigned 9 Points of Error for reversal. Points 1, 2
and 4 are founded upon the proposition that the option to extend
or renew the lease was not supported by any consideration.
Plaintiff seemingly argues that the lease was divisible, expressing
two distinct agreements, namely, the demise for 10 years and the
option, and further, that whatever consideration may be
expressed in the lease was intended to be a consideration for
only the 10 year demise.
Points 1, 2 and 4 are overruled. The option was supported by a
valuable consideration. It presumably constituted an inducement
to Defendant to enter into the contract evidenced by the lease and
as we construe the lease, Defendant’s covenants, rental and
otherwise, were intended by the parties to be a consideration not
only for the 10 year demise but also for the option. ... Our
conclusion is in accord with that reached by other courts of this
state in resolving similar questions of construction, arising under
various kinds of agreements containing options. Blaffer & Farish
v. Gulf Pipe Line Co., Tex. Civ. App., 218 S.W. 89; Griffin v. Bell,
Tex. Civ. App., 202 S.W. 1034; Mayhew & Isbell Lumber Co. v.
Valley Wells Truck Growers’ Ass’n, Tex. Civ. App., 216 S.W. 225,
at page 232; Texarkana Pipe Works v. Caddo Oil & Ref. Co., Tex.
Civ. App., 228 S.W. 586; Jones v. Gibbs, 133 Tex. 627, 130
S.W.2d 265, at page 268.
Id. at 142-143.
In Blaffer & Farish v. Gulf Pipe Line Co., 218 S.W. 89, 90 (Tex. Civ.
App.–Galveston 1919, no writ), cited above in Bridgeman, plaintiffs entered
into a contract whereby they agreed to sell to the defendant up to 1,000
barrels of oil per day, with an option for the defendant to purchase additional
quantities in excess of the 1,000 barrels. The plaintiffs argued that the option
67
provision was not supported by consideration. The Court of Appeals rejected
this argument, stating as follows:
We are of opinion that the contracts between the parties
constitute entire contracts, and that the considerations recited
support, not only the sale of the 1,000 barrels of oil by each of the
plaintiffs, but as well the right of defendant to demand the placing
of the excess oil in the settling tank to which defendant had
attached its pipe line, and the right of defendant to run said
excess oil into its pipe line, and thereafter, at the time of or prior
to any settlement and payment for oil theretofore received, to
purchase the same by paying therefor the price stipulated in the
contract. Where in a contract supported by a sufficient
consideration an option is given to one of the parties, the option
is valid and enforceable, though there is no independent or
specific consideration for the option.
Id. at 91-92. (emphasis supplied)
In Corsicana Petroleum Co. v. Owens, 222 S.W. 154, 154-55 (Tex.
1920), the Owenses entered into a mineral lease whereby Corsicana
Petroleum paid the Owenses $28.20, agreeing to drill a well within one year
or to pay delay rentals of $28.20 quarterly if no well was drilled. The
agreement also contained an option in favor of Corsicana Petroleum. Id. at
154-155. The Supreme Court found that the agreement was enforceable and
that the option was supported by the above-recited consideration. Id. at 155.
The above decision and the decision in Blaffer & Farish v. Gulf Pipe
Line Co. were later cited by the Supreme Court in Pace Corporation v.
68
Jackson, 284 S.W.2d 340, 343 (Tex. 1955), a case which involved a
settlement agreement between three shareholders that contained an option
granted to one of the shareholders to have the company supply him with
discounted cigarettes for resale. The option was described as follows:
4. Paragraph E, the heart of the controversy, reads as follows:
“As a part of the consideration for this transaction, Pace
Corporation agrees to supply Allan Jackson for any business he
may become interested in outside of Bexar County, with
cigarettes on a cash basis, at cost, for a period not to exceed two
years after Pace Corporation has paid its indebtedness to Allan
Jackson, such cost being defined as invoice price less normal
trade and cash discount, if any.”
Id. at 343.
The Supreme Court found that Paragraph E of the settlement
agreement, quoted above, was “an option contract, supported by a valuable
consideration.”
Our construction of the contract is that for a valuable
consideration Pace Corporation obligated itself by paragraph E to
supply Jackson, at cost, with all the cigarettes he chose to order
at any time on reasonable notice, and from time to time, for his
cigarette business in Kerr and Bandera Counties for a period of
seven years.
In asserting that the contract is lacking in mutuality petitioners
have reference to mutuality of obligation, and assume that
paragraph E is a separate and divisible contract. Paragraph E is
not a separate and divisible contract. It is a part of the entire
integrated contract between the parties, and the consideration for
Pace Corporation’s promise to supply Jackson with cigarettes
69
was the sale and transfer of Jackson’s stock in the corporation at
the price stipulated and the relinquishment of his rights incident
to the ownership thereof. Blaffer & Farish v. Gulf Pipe Line Co.,
Tex. Civ. App., 218 S.W. 89, no writ history. Consideration for the
promise having been [otherwise] paid or furnished, the contract
is unilateral and mutuality of obligation is unnecessary to its
validity. Corbin on Contracts, Vol. 1, secs. 21 and 152; 12
Am.Jur. 509-513, Contracts, secs. 13 and 14; 46 Am.Jur. 254,
Sales, sec. 63. This elementary rule is recognized in Corsicana
Petroleum Co. v. Owens, 110 Tex. 568, 222 S.W. 154, and in
Johnson v. Breckenridge-Stephens Title Co., Tex. Com. App.,
257 S.W. 223, 225. In so far as the provisions of paragraph E are
concerned the contract is not a bilateral executory contract for the
sale of cigarettes for future delivery but is an option contract,
supported by a valuable consideration.
Id. at 344.
In Mayhew & Isbell Lumber Co. v. Valley Wells Truck Growers’ Ass’n,
216 S.W. 225, 226-227 (Tex. Civ. App.–San Antonio 1919, no writ), Valley
Wells and its members entered into an agreement with Mayhew to purchase
60,000 onion crates (30,000 that were to be deliverable immediately). The
agreement required a payment of $4,500.00 on the purchase price, which was
paid. Id. Mayhew provided the initial 30,000 crates, but subsequently and
untimely provided only 12,000 additional crates causing Valley Wells to suffer
losses due to damaged and ruined corps. Id. at 227. Mayhew argued that
there was no consideration to supply the additional crates, the second 30,000.
This Court rejected the argument, concluding that the initial payment of
70
$4,500.00 was part of the consideration for the additional crates. Id. at 231-
232. This Court concluded there was valid consideration for the additional
crates even if it adopted a construction of the agreement that there was only
an option contract for the second 30,000 crates. Id. at 231-232.
The Mediated Settlement Agreement recites that the parties agreed to
dismiss and release all claims asserted between them with the exception of
the undertakings reflected in the Mediated Settlement Agreement. (1 CR
182-183, ¶¶ 3 and 5) The relinquishment of a legal right is sufficient
consideration to support a contract. See Brison v. Continental Oil Co., 48
S.W.2d 442, 444 (Tex. Civ. App.–Fort Worth 1932, writ ref’d); Martin v. Martin,
Martin & Richards, Inc., 12 S.W.3d 120, 125 (Tex. App.–Fort Worth 1999, no
pet.); Birdwell, 819 S.W.2d at 228; Saenz v. Martinez, 2008 WL 4809217 at
* 4; Prairie Producing Co. v. Martens, 705 S.W.2d at 260.
Texas courts recognize that the settlement of disputed claims can
constitute legally sufficient consideration for an option. In Great Western Oil
Co. v. Carpenter, 95 S.W. 57, 58 (Tex. Civ. App. 1906, writ ref’d), the
Carpenters entered into mineral leases for 400 acres of land in Jefferson
County and 145 acres in Hardin County on January 28, 1901. On July 20,
1901, the parties entered into a new contract which extended the term of the
71
mineral leases and released back to the Carpenters 25 acres of the 145 acre
lease. Id. at 58-59. The Court of Appeals found that this release and
compromise was adequate legal consideration for an option.
We conclude that the lease contracts of January 28, 1901, were
valid contracts and were in full force, binding the land embraced
therein, on July 20, 1901, when the second contract was
executed. The release of the 25 acres of land out of the tract of
145 acres furnished a valuable consideration for the option
contained in the last contract, which option would have continued
until and unless forfeited, by its terms, for failure on the part of
appellant to begin work in 9 months and finish a well on each of
the two tracts in 15 months from the date of the contract. Until
these contingencies occurred, the land was bound by the option
contained in this contract. This contract imposed no express
obligation on appellant to do any work, as a consideration of the
option, but the release of the 25 acres from the former leases was
sufficient consideration to support it. A release of both tracts of
land from this option was a sufficient consideration for the
contract to convey the 2.82 acres of land and the payment of the
$1,000 sued for herein. This conclusion finds further support, if
need be, in the principle that agreements made in good faith in
compromise of doubtful claims, are to be enforced
notwithstanding the claim asserted on the one side is denied on
the other, and may appear to be invalid or unenforceable. 1 Pars.
on Contracts, 438.
Id. at 61.
The cases cited by the Marxes do not support the no consideration
arguments they make in their Second Point of Error. The Texas Supreme
Court in National Oil & Pipe Line Co. v. Teel, 68 S.W. 979, 980 (Tex. 1902),
simply stated that a promise to give an option is valid if supported by an
72
independent consideration and that if a sum of money is paid for the option,
the promisee may enforce the contract. That decision is not contrary to the
cases cited above by FDP which hold that if the option is contained in a
contract which itself is supported by consideration, no independent
consideration for the option itself need appear.
In Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851, 853 (Tex. App.–Dallas
1983, writ ref’d n.r.e.), the seller rejected the agreement before the buyer paid
the earnest money, a factual situation that is different from this case on
appeal.
The decision in Culbertson v. Brodsky, 788 S.W.2d 156, 157 (Tex.
App.–Fort Worth 1990, writ denied), also involved a factual situation different
from this appeal. In Culbertson, the contract permitted the buyer to deliver an
earnest money check to the title company that the title company could not
deposit for sixty days. The Court of Appeals explained as follows:
Brodsky’s check for $5,000 was not consideration for the option
because the title company was forbidden to cash the check until
the expiration of the option. During the option period, the check
would have to be returned to Brodsky upon his demand despite
any objections by Culbertson. We reject Brodsky’s argument that
by delivering the check to the title company, he had to forbear the
use of the $5,000 it represented. Because the title company
could not cash the check, that sum remained on deposit to
Brodsky’s account and since the check had to be returned to
Brodsky on demand, he was free to put the money to any other
73
use. Brodsky contends that he had to maintain the $5,000 on
account, however, Brodsky was not required to deposit funds to
cover the check until he decided to exercise the option.
Id. at 157.
The Farm and Ranch Contract in this case expressly and
unambiguously provides that FDP shall deposit $10,000.00 as earnest money
with the title company. (1 CR 17, ¶ 5) The Marxes judicially admit that FDP
made payment and that it was deposited with the title company. See Marxes’
Summary Judgment Response, p. 3 (2 CR 488) (“Plaintiff [F]DP, LP,
deposited a check for earnest money with the title company described in the
contract, but said earnest money will be refunded to said Plaintiff entirely.”).
On page 21 of the Appellants’ Brief, the Marxes cite to the decision in
Chambers County v. TSP Dev., Ltd., 63 S.W.3d 835, 838 (Tex. App.–Houston
[14th Dist.] 2001, pet. denied), for the proposition that “the primary test for
determining whether an agreement is a valid option contract is whether the
contract imposes a mandatory obligation upon the seller to accept a sum
stipulated as liquidated damages in lieu of the purchaser’s further liability.”
After citing to the Chambers County decision for this proposition, the Marxes
state in the next paragraph of their Brief that “no such fee is described in
either the MSA, the Final Judgment, or in the warranty deed prescribed by the
74
Final Judgment” and that “the option agreement itself lacks all the essential
terms of a real estate contract.” All that Chambers County stands for is that
a real estate contract which provides that the seller’s only contractual remedy
is retention of the earnest money is considered an option under Texas law,
rather than a contract for sale that conveys equitable title. Id. at 838. There
is nothing in the opinion that speaks to essential terms required for the option
or enforceability.
The decision in Chambers County has absolutely nothing to do with any
of the issues in this case or the agreements that were executed by FDP and
the Marxes. Chambers County addressed the standing of an owner to sue
under the Private Real Property Rights Preservation Act, Tex. Gov’t Code §§
2007.001–.045. The Act permits owners of real property to file a lawsuit
against a political subdivision to determine whether a constitutional taking has
occurred. Chambers County, 63 S.W.3d at 837-838. The Act defines an
owner as a person with legal or equitable title to affected private real property
at the time a taking occurs. Id. at 838.
At the time that TSP Dev. sued, it had a contract to purchase property
in the relevant area. Id. The issue that the Court of Appeals addressed in
Chambers County was whether or not the contract for sale was an
75
enforceable real estate contract that granted legal or equitable title to TSP or
whether it was an option contract. The distinction was important because an
option contract does not pass title at the time that it is formed. Id. at 838.
The Court of Appeals found that the contract was an option contract
which did not confer standing on TSP under the Act. The Court of Appeals
concluded as follows: “As discussed above, the act provides standing only
for ‘owners’ of property possessing ‘legal or equitable title.’ ... Although TSP
may have certain rights in the property not possessed by the public at large,
e.g., an option to buy on particular terms, such claimed rights are not
sufficient to give it equitable title. ... The TSP/USX agreement was an option
contract; hence, TSP did not have standing to attack the ordinance under the
Private Real Property Rights Preservation Act.” Id. at 840. The Chambers
County decision cited by the Marxes on page 20 of their Appellants’ Brief
does not support their argument that the option provision that the Marxes
agreed to in the Mediated Settlement Agreement is unenforceable under
Texas law because it fails to contain essential terms.
The Marxes’ Second Point of Error must be overruled.
76
C. The Affirmative Defenses Alleged By The Marxes Did Not Bar The
Trial Court From Granting Summary Judgment In Favor Of FDP
(Responsive to Appellants’ Brief, p. 22)
In their Third Point of Error, Appellants’ Brief, p. 22, the Marxes make
a five sentence argument claiming that (1) their Supplemental Answer filed on
October 14, 2013, contained “no less than sixteen affirmative defenses,” (2)
FDP did not file a no-evidence motion for summary judgment and (3) the trial
court erred in granting final judgment in favor of FDP because the final
judgment “failed to dispose of each and every one of appellants’ affirmative
defenses.”
First, the Marxes cite no authority to support the arguments made above
in their Third Point of Error. This Court should overrule the Marxes’ Third
Point of Error for inadequate briefing. See Tex. R. App. P. 38.1(i).
“The Texas Rules of Appellate Procedure require adequate
briefing.” ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d
867, 880 (Tex. 2010); see TEX. R. APP. P. 38.1. Specifically,
Rule 38.1(i) requires that an appellant’s brief contain clear and
concise arguments, “with appropriate citations to authorities and
to the record.” TEX. R. APP. P. 38.1(i); In re Blankenship, 392
S.W.3d at 259. Failure to satisfy this requirement waives the
issue on appeal. See In re Blankenship, 392 S.W.3d at 259;
Dove v. Graham, 358 S.W.3d 681, 685 (Tex. App.–San Antonio
2011, pet. denied).
... Because Valdez’s brief on this issue does not contain any
clear and concise argument with appropriate citation to the record
and authorities, we conclude that this issue was inadequately
77
briefed and thus waived. See TEX. R. APP. P. 38.1(i); In re
Blankenship, 392 S.W.3d at 259.
In re Estate of Valdez, 406 S.W.3d 228, 235 (Tex. App.–San Antonio 2013,
pet. denied); see also In re Blankenship, 392 S.W.3d at 259 (concluding that
an issue was inadequately briefed and presented nothing for appellate review
when the appellant cited no cases or other authority in her brief); Rother v.
Rother, No. 04-13-00899-CV, 2014 WL 4922898 at * 3 (Tex. App.–San
Antonio Oct. 1, 2014, no pet.) (mem. op.); Nolan v. Hunter, No. 04-13-00072-
CV, 2013 WL 5431050 at * 9 (Tex. App.–San Antonio Sept. 25, 2013, no pet.)
(mem. op.).
Second, the Marxes’ arguments are flatly contrary to long-established
Texas summary judgment practice. The Marxes presented no evidence to
support any of their claimed affirmative defenses. (2 CR 486-516) The
defendant’s pleading of an affirmative defense will not prevent the rendition
of summary judgment for the plaintiff where the plaintiff has conclusively
established each element of its cause of action as a matter of law. See
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Once the plaintiff
has conclusively proven its entitlement to summary judgment, the burden
shifts to the defendant to produce evidence to raise an issue of fact on its
affirmative defenses sufficient to defeat summary judgment. Id. Under Texas
78
law, a plaintiff is not required to move for summary judgment on the
defendant’s affirmative defenses and has no obligation to negate the
defendant’s affirmative defenses. Id. See also Woodside v. Woodside, 154
S.W.3d 688, 691 (Tex. App.–El Paso 2004, no pet.) (“A plaintiff, when moving
for summary judgment, is not under any obligation to negate affirmative
defenses.”).2
In Lunsford Consulting Group, Inc. v. Crescent Real Estate Funding VIII,
L.P., 77 S.W.3d 473, 475-476, 477 (Tex. App.–Houston [1st Dist.] 2002, no
pet.), the First Court of Appeals explained as follows:
To defeat summary judgment by raising an affirmative defense,
the nonmovant must do more than just plead the affirmative
defense. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830
(Tex. 1994). The nonmovant must present summary judgment
evidence that raises that defense. Brownlee v. Brownlee, 665
S.W.2d 111, 112 (Tex.1984). If the nonmovant does not raise a
fact issue on each element, there is no defense.
###
Because Kiser was relying on an affirmative defense to defeat
summary judgment, he had to produce summary judgment
evidence that raised a fact issue on each element of the
affirmative defense. See Brownlee, 665 S.W.2d at 112. Because
2
In their summary judgment response, the Marxes acknowledge this authority, citing to the
decision in Brownlee v. Brownlee (2 CR 486): “A defendant relying upon an affirmative
defense must then come forward with evidence raising a fact issue on each element of its
affirmative defense in order to avoid the summary judgment. Brownlee v. Brownlee, 665
S.W .2d 111, 112 (Tex. 1984).”
79
he did not, the trial court properly rendered summary judgment in
favor of Crescent.
See also Jim Maddox Properties, LLC v. WEM Equity Capital Investments,
Ltd., 446 S.W.3d 126, 131-132, 133-134 (Tex. App.–Houston [1st Dist.] 2014,
no pet.); Brooks v. Excellence Mortg., Ltd., __ S.W.3d __, No. 04-13-00106,
2014 WL 2434583 at * 4 (Tex. App.–San Antonio May 30, 2014, no pet.);
Hammonds v. Cramer Financial Group, Inc., No. 04-96-00548-CV, 1997 WL
184734 at * 2 (Tex. App.–San Antonio April 16, 1997, no writ) (not designated
for publication).
This Court’s opinion in Wise v. Luke Development, LLC, No. 04-12-
00477-CV, 2013 WL 4483381 at * 2 and * 4 (Tex. App.–San Antonio Aug. 21,
2013, no pet.) (mem. op.), expressly addressed and rejected the arguments
made by the Marxes and is dispositive of their Third Point of Error.
When the plaintiff moves for traditional summary judgment, it
must conclusively prove its entitlement to summary judgment on
each element of its cause of action as a matter of law. See TEX.
R. CIV. P. 166a(c). If the plaintiff does so, the burden then shifts
to the defendant to produce evidence creating a genuine issue of
material fact as to the challenged element or elements in order to
defeat the summary judgment. See Walker v. Harris, 924 S.W.2d
375, 377 (Tex. 1996). The defendant’s mere pleading of an
affirmative defense does not prevent the rendition of summary
judgment for a plaintiff who has conclusively established each
element of its cause of action as a matter of law. Brownlee v.
Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
80
###
Wise and Hubbard next argue the summary judgment was
improper because Luke Development “failed to demonstrate the
lack of [a] genuine issue of material fact” concerning their
affirmative defenses. However, to avoid summary judgment, the
burden was on Wise and Hubbard to produce evidence raising a
fact issue on each element of their affirmative defenses. See A.J.
Morris, M.D., P.A. v. De Lage Landen Fin. Serv., Inc., 2009 WL
161065, at * 12 (Tex. App.–Fort Worth 2009, no pet.) (rejecting
the argument that summary judgment was improper when the
plaintiff did not move for summary judgment on the defendant’s
affirmative defenses); Tesoro Petroleum Corp. v. Nabors Drilling
USA, Inc., 106 S.W.3d 118, 124 (Tex. App.–Houston [1st Dist.]
2002, pet. denied) (noting that a plaintiff moving for summary
judgment has no obligation to negate the defendant’s affirmative
defenses). Wise and Hubbard do not argue they produced
evidence raising a fact issue on each of the elements of their
affirmative defenses.
The Marxes’ Third Point of Error is unmeritorious and must be
overruled.
CONCLUSION AND PRAYER
The final judgment and award of specific performance in favor of FDP,
LP must be affirmed.
The Marxes have not asserted in any of their three Points of Error that
there is an ambiguity with respect to the financing provisions of the Farm and
Ranch Contract that was created by the Mediated Settlement Agreement.
They made this argument in the trial court and in their Statement of Facts, but
81
have argued on appeal only that the agreements that they executed are
unenforceable because of contractual indefiniteness or failure to agree to all
material and essential terms. If this Court finds that the ambiguity argument
has merit, has been preserved for appeal, and requires reversal of the final
judgment, this Court should make clear in its opinion and judgment that on
remand FDP shall have the opportunity to conclude the transaction by
payment of $2,086,675.00 cash by FDP or by the obtaining of third-party
financing for all or part of the $2,086,675.00, resulting in FDP and FDP’s
lender paying a cash purchase price of $2,086,675.00.
Respectfully submitted,
PAUL WEBB, P.C.
/s/ Vincent L. Marable III
VINCENT L. MARABLE III
trippmarable@sbcglobal.net
State Bar No. 12961600
221 N. Houston
Wharton, Texas 77488
Telephone: (979) 532-5331
Telecopier: (979) 532-2902
82
GILBERT ADAMS LAW OFFICES
GILBERT T. ADAMS, III
gilbert@gta-law.com
State Bar No. 00790201
1855 Calder Avenue at Third
P. O. Drawer 3688
Beaumont, Texas 77704
Telephone: (409) 835-3000
Telecopier: (409) 832-6162
ATTORNEYS FOR APPELLEE FDP, LP
83
CERTIFICATE OF SERVICE
I certify that on March 11, 2015, a true and correct copy of the above
and foregoing Brief Of Appellee FDP, LP was forwarded to all counsel of
record by the Electronic Filing Service Provider, if registered; a true and
correct copy of this document was forwarded to all counsel of record not
registered with an Electronic Filing Service Provider by certified mail return
receipt requested, addressed as follows:
Kirk Dockery
kirkdockery@gmail.com
Scott R. Donaho
srdonaho@floresville.net
The Law Offices of Donaho & Dockery, P.C.
P. O. Box 459
Floresville, Texas 78114
[ Counsel for Appellants Robert Marx and Debbie Marx ]
/s/ Vincent L. Marable III
VINCENT L. MARABLE III
84
CERTIFICATE OF COMPLIANCE
This brief complies with the length limitations of Tex. R. App. P.
9.4(i)(2)(B) because this brief consists of 14,522 words, excluding the parts
of the brief exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Vincent L. Marable III
VINCENT L. MARABLE III
85
APPENDIX
Final Judgment signed August 11, 2014
(2 CR 532-556) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “1”
Farm and Ranch Contract
(1 CR 16-31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “2”
Mediated Settlement Agreement
(1 CR 182-188) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “3”
Order confirming Arbitration Award and
incorporating Arbitrator’s Ruling
(2 CR 353-363) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB “4”
CA~SE NO•.12-03.0101-CVW
FDP,LPandLARRYFRIESENHAHN ·§ IN THE DISTRICT COURT OF
§
Y. § Wil.,SON COUNTY, TEXAS
§
ROBERT MARX, DEBBIE MARX §
and DIEGO LOPEZ' . §. . s1sr JUDICIAL DISTRICT
.• F;IN.AL JUDGMENT
. .
Came on for ~iderati.on Plaintiff PDP, LP's Motion For Final Summary Judgment For
,:
Specific Performance .;And
..
Other Relief and the Court having
..
considered the motion, any
respobse, the plead.in~· in. the case
.··· .
and bavmg taken judicial notice of this Court's May 12, 2014,
~Granting PJai~~· Mo1i~n ~ AppliCation To 6mfum Arbitration A~ And
Confi~atlon Of Arbii:falion AWard has determined that. Plaintiff PDP, LP is entitled to specific .
..•
performance and the ofber relief reflected in this Final Judgm.ent.
I .·:·. • • I
It is ORDE~_, ADJ:ID}GEJ> and ~ECREED that Plaintiff PDP, LP's Mo1ion For
Final Summary Judgment . Other Relief is granted.
. Specific Performance And
. For
It is ORDERED, .AD~GED and DECREED that FDP, LP is entitled to specific
performance of the Falm and Ranch Contract between Robert Marx and Debbie Marx and FDP,
LP dated January 27, 2012, as modified by the parties' August 27, 2013, Mediated Settlement
Agreement and further blarified by the April 14, 2014, ai:bitration letter ruling of Thomas J.
· Smith and confirmed b}t-"this Court's May 12, 2014, Omer Granting Plaintiffs• Motion And
Application To Confirm Arbi~on Award And. Confirmation Of Arbitration Award.
It is ORDERED, ADJUDGED and DECREED that a closing of transaction as
descnbeci~es~~onorbefor~~ ~~0~4.at ~J~ooJll +le Co.
30 o e:: /+\~ 11 n.e Rd , .v t=C!.;b-r ,a_ , /......_ .
(
flocuti6lf].
. ·At or prlor to.
. the closing, the Seller$, Robert Marx and Debbie Marx, shall, upon .
receipt of the c~ funds and the executed documents d.escno~ in the next p~agraph, execute
•.
1 EXHIBIT
I I 532
the Warranty Deed With V~dor's Lien in the form attached to this Final Judgment as Exhibit
"A..,, This older is enforceable by contempt
·1t is ORDERED, ADJUDGED and DECREED that at or before the closing, Plaintiff
FDP, LP will tender cash funds of $300,000.00 and will execute the Real Estate Li~ Note and
Deed ofT~ in favor of Robert Marx and Debbie Marx in the ~ount of $1,786,675.00 and in
the form attached to this Final Judgment as Exhibits '"B,, and "C."
It is ORDERED, ADJUDGED and DECREED tba:t at or before the closing the parties
shall execute all other and necessary, typical and traditional documents required to close the
iransaction.
It is ORDERED, ADJUDGED and DECREED that Plaintiff PDP, LP have judgment
against Defendants Robert Marx .and Debbie Marx jointly and severally for $17,688.50 and post-
judgment interest on that amount until the sum is paid by Defendants to P1~1if£
In its May 12, 2014, Order Granting PJaintiffs' Motion And Application To Confirm
.Arbitration Award And Confinnation Of Arbitration Award, this Court made rulings as to Robert
Marx's and Debbie Marx's joint and several liability for the cost of the Arbitrator's fee.
($1,800.00) and the surveyor's fee ($11,539.43). To the extenttbattbese f~ remain
outstanding and unsatisfied, those rulings are reaffirmed and are deemed to be part of this Final
Judgment
In connection with the closing of this transaction described above, counsel for Plaintiff
PDP shall, prior to the closing, provide notice to the Title Company closing the transaction (with.
a copy to counsel for Defendants) advising the Title Company whether Defendants have paid to
Plaintiff PDP, LP the attorneys' fees and expenses in the amount of$17,688.50, paid to the
surveyor the surveyor's fees in the amount of $11,539 .43 and paid to the arbitrator the
arbitrator's fees of $1!>800.00. The Title Company closing the sale shall deduct from the cash
payment made by FDP, LP any unpaid amounts described above and shall disburse payment to
2
533
the proper recipient.
The Fann and Ranch Contract states that the Seller (Defendants) shall fumish a Title
Policy at seller's expense. If, at closing, the Defendants have not :fumished and paid for such
Title Policy and PDP, LP has paid to obtain such Title Policy, the Title Compmy is directed to
disburse to FDP, LP such amoimts paid for the Title Policy from the cash payment to be mAde by
FDP, LP..
Plainti:ff FDP, LP is entitled to recover additional l'easonable and ne~sary attomeys'
fees of $2,800.00. Judgment is hereby rendered against Defendants Robert Marx and Debbie
Marx. The Title Company closing the sale shall deduct from the cash payment made by FDP,
LP any unpaid amounts descnoed above and shall disburse payment to the proper recipient
The Court c?nditionally awards appellate attorneys' fees to Plaintiff PDP, LP as follows:
$15,000.00 for the Court of Appeals.
$4,500.00 in the event that FDP> LP responds to a petition for review.
$9,000.00 ifbriefing on the merits is ordered by the Texas Supreme Court.
All other claims for relief asserted by any party to this case are denied.
... i
This is a final and appealable judgment.
Costs of comi:, including any mediator's fees associated ~th any mediatlons, are taxed
against Defendants Robert Marx and Debbie Marx.
SIGNED on this Date: ~---IA,J=-=----
3
534
APPROVED AS TO FORM:
i' Jq.\boJ~m
GIT.BERT T. ADAMS, m J
gilbert@gt.a-law.com
State Bar No. 00790201
GILBERT ~.AMS LAW OFFICE
1855 Calder Avenue at Third
P. 0. Drawer 3688
Beaumont, Texas 77704
· Telephone: (409) 835-3000
Telecopier: (409) 832-6162
AITORNEY FOR PLAINTIFFS
4
535
. "
NOTICE OF CONF"J>ENru\LITY BIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION
FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY
BEFORE IT IS Ji'ILED FOR RECOP.J> IN THE PUBUC RECORDS: YOUR SOCIAL
SECURITY NUMBER OR YOUR DRIVER'S UCENSE NUMBER.
WARRANTY DEED WITBWNDOR'~ LIEN
Date: _ _ _ _ _ 2014
Grantor: ROBERT MARX AND DEBBIE MARX
Grantor's Mailhlg Address:
ROBERT MARX
DEBB1EMARX
620 Marx. Lane.
La Vernia, TX 78121
Wilson County
Grantee: PDP, LP, a Texas Limited Partnership
. I
Gi'Utee's MalUng Address:
FOP, LP.
1204 Zanderton
Jourdanton, TX 78026
Atascosa Counijr
Consideration: TEN AND N0/100ths DOLLARS ($10.00) and other good and valuable
consideration and the :further considemtion of a note of even date executed by Grantee and payable
to the order of Orantor in the principal amount of ONE MILLION SBVBN HUNDRED EIGHTY-
SIX THOUSAND SIX HUNDRED SEVENTY-FIVE AND N0/100 DOLLARS ($1,786.675.00).
The note is secured by a first and superior vendor's lien and superior title retained in this deed and
by a fb:st-lien deed of trust of even date from Grantee to KIRK DOCKERY, TRUSTEE.
Property (Including any improvements):.
. .
417.335 acre (Surface area-Orid Area: 417.201 acres) tract of land situated in the 0. C &
S.F.R.R Survey, Section 5, Abstract No. 442, the Beajamin White Survey, Abstract No. 431;
and the J.N. Stone Survey, Abstract No. 516 in Wt1son County, Texas, containing a portion
of Tracts 1, 2 and 3 described in instrument to Mrs. Clara Jaksik Marx, Sr., recorded in ·
Volun1e 420, Page 209 ofthe W'tlson Co~ Deed Records, conta;ning a small portion of
that certain 5.000 aore tract described in instrument to Robert R. Marx recorded in Volume
673, Page 799 of the Wilson County Official Public Records; containing a portion of that
certain 326.047 acre tract descnoed in instrument to Robert R. Marx recorded in Volume ·
WARRANTY DEED WITH YENDOR WUEN Pags/q/S
EXHIBIT
I A
536
...
732. Page 377 of the Wilson County Official Public Records; and being more particularly
described by metes and bounds on the attached Exhibit "A."
Rese"ations from and Exceptions to Conveyance and Warranty:
EaSements, rights-of...way, and prescriptive rights, whether of record or not; all ~ently
recorded instrJine~ other than liens and conveyances, that affect the property; taxes for the
current year, the payment ofwhich Grantee assumes.
OP..ntor, for the Consideration and subject ·to the Reservations from Conveyance 8nd the
Exceptions to Conveyanceand Warranty, grants, sells, and conveysto Grantee the~, together
with all and sin~the rights and appurtenances thereto in anyway belonging, to haVe and to hold
it to Grantee alld Orantee1s heirs, successors, and aSsig1ls forever. Grantor binds Grantor and
Grantor's heirs and successors to warrantandforeverdefendall andsingulartheProp~to Grantee
and Grantee's heirs, successors, and assigns against every person whomsoever 1aw.li1lly c~ or
to claim the same or any part thereot except as to the Reservations from Conveyance and the
Exceptions to Conveyance and Warranty. ·
The vendor's lien against and superior title to the ~ are retained until each note
.descnoed is ~Y paid according to its terms, at which time this~ will become absolute.
Option:
Orantor hereby gt'.Sllts to Grantee the exclusive option to ~e the Homestead Prop~,
described on the attached Exhibit "B," for the price offS00,000.00t for a period of 120 days from
the earlier of
(i) .written notice from the Orantor;
(u) the. death of
.
tbe last surviving Orantor;
.(tii) or the expiration of eight (8) years from the effective date of this Warranty Deed
With V eiidor's Lien. ·
When the context requires, singular nouns and pronouns include the plural
ROBERT MARX
DBBBIBMARX
WARRANTY DEED WITH l'ENDOR'S UEN PagdoJJ
.537
...
Acknowledgments
STATE OF TEXAS §
COUNTY OF _ _ _ __ §
This instrument was acknowledged before me on _ _ _ _ _ _ 2014, by ROBERT
MARX.
Notary Publict State of Texas
STATE OF TEXAS §
i COUNTY OF _ _ _ __
!· §
r . This instrument was acknowledged before me o n - - - - - - 2014, by DEBBIE
MARX.
.{
N~ Public, S1ate of Texas
PREPARED lN THE OFFICE OF:
Paul Wr.bb. PC
221 N. Houston Srm:t
Whartan. Texas 7743g
AFTER RECORDING RETURN TO:
WARRANTl DEED W1TH VENDOR l.S' UEN Pap3qf3
538
·---:.
..
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RGWRll. DBl1l&U1
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aumtfTA'lldJI ,.~
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ii
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.JKs~6rln~-Pr9poatld~dulTt6cl AS11 -4i7~'60189
Job0No.SCl?~DO.-Jinum\fZI. ~~;. Pagd 1f af ~ •
SlnJrt Eil»itneatb19..'Smllt d-aJaHons,""
..
. 539
..
1'HSN0Bs~tba-e.Q~r1it Dot1hilerv of ef6)'emantto11ed RubtelRanch QJPdtvlelcm, lb' fcltoy1lng:tl'(~
com~~6~ .
1. Nad'tl t4"11'SO~ Eavit elong Che aaslStlvbcttndf!id~·WODlllaod~ $1bdMslan;.at 80.8& feet
'ase~.lhe centerffnB ~8 Dilv&{70 ~Wldlt~ tonft~.for J to.ml dfsiMQ)Gf SG.8Tfeet
. to at 412~ l«ln ~1buM mark~ lheaJIQrlheast ~&Paf estdWaadia1ds Bu&d!VrS?an the ana
,clutlieast O(Q'fU!r glf. COJ1J>F areett1:s\alp,ii,, Jh,t[tg, lJJ4lofiWhtob ls-recordad In Volume 10. Page"DS al
1he WilUOD.eatsnfrY Pl~ra&;
2. North 1~&1'4Er eesJ;.aleng.Ut~ ~atefitpc®&lf1~ Jg lhe •tetlf. bt\~MU'Jl'oel!efn 1V.8W \\oro·91rae\.
"fwo d~jq 1riatcU.Jaflttto.IJlwr813ZD~ ~.~ lnVotwna 19; P.qe BA"Cff
.
fhe-WIJ11t1n·Count' Doacsp carqalpderfrll;lil~ tonowlng.a~ Cdllts.qi fWJ I
1, Sl1Uth:15°4S-a?' Sast, 70.00·feet l~a·potntfur GOnm;
. .
l?.. ~lb1l~O'OS" UVsst, 1467'3&leet t04 pdJntfOr COlllB11
l. . SOJLlh ~ ~ 1"80.4.QS feet b):i p01n: !Cr corner. •
4. Sculh 1.4.°1115011 West. 182.33 feettosa pokltfor aonteii
5.. Nasth·SS033'~" sast. .220S.1iHeet lb a IJOfrltfor mner.
a. NDJUi 011°46'31C! w~ 4201.&f·reet tc).a.polnt tsrGOmer,
.. 1
·tMllim'Brkllld an an;kt·po1n\l oame betJl9 U1a ri0tlhem-mos£ bd ~~tt 15,0'0o acre tracq
'*
Tf.elCE,, NoJth 14°1e 49" Edst. 29.97.fe.e\alo~ tha easledv end of tatd Marx Len.e traafio a 1·f iftlt\ Rift
EXlilBlT
''Pl''
l J:>oy 1.. ~?i.
.
JK&E'n&fneeffiltl-Propeaed ~GU\ truct 11Et- -411.33j aGleS
Job }:lfll SD7&2;aos,oo-~~my~. z~14.a..Page2Qf.3
·540
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JKS Enttn.1~~ Pfftp9se,:l tt181X Ol}fTratlt 1!"-41!7.336-rae- ..
Joh No. SU/fii.o~,. .fei:wal)' ~ '2014 .. PaaJNof~
..
541
r.·
(
I
REAL BATE LIEN NOTE
Date: _ _ _ _ _ 2014
Borrower: FDP, LP, a Texas Limited Partnership
Borrower's Mailing ~ddr<$S:
FDP,LP
1204 Zanderton
Jourdanto~ TX 78026 ·
Wilson County
Lender: ROBERT MARX A..ND DEBBIB MARX.. husband and wife
Plaee for Payment:
620 Marx. Lane
La Vernia, Wilson County, Texas 78121, or any other place that Lender may
designate in writing; ·
Prfneipal Amount: ONB :MILLION SEVEN HUNDRED mGHTY-SIX THOUSAND SIX
HUNDRED SEVENTY-FIVE AND N0/100 ($1.786,675. 00) DOLLARS
Annual Interest Rate: 4.5%
Maturity Date: 180 months from date ofNote
Annuallnterest~te on Matured, Unpaid Amounts: The maximum lawtbl rate of intenst per
annum. . .
I·I Terms of Payment (principal and interest):
I
1·.
Principal and interest are payable in 180 monthly installments of THIRTEEN 1HOUSAND SIX
HUNDRED SJX'IY-SEVBN AND 94/100 ($13,667.94) DOLLARS or more each. Prom each of
these installments the accrr.ied interest on the unpaid prlneipal will be deducted firs~ and the
remainder will be applied to peyment of principal. The first installment is payable on or before
I
~I --~-~_.'1 2014, and the others are payable regularly on or before the 30tb day of each
succeeding month until the principal and interest have been paid ·
I
!
Security for Payment: This note is secured by a vendots lien and superior title retained in a
deedftOmROBBRTMARXANDDBBBm~busbandandwifetoBorrowerofevendateand
by a deed oftrust of eyen date from FOP, LP to KIRK DOCKERY, TRUSTEE, both ofwhich cover
the following real ~erty: . . · .
417.335 acre (Surface area- Orid Area: 417. 201 acres) tract ofland situated in the G. C & S.F.R.R
Survey, Section .S., Abstract No. 442, the Benjamin White Survey, Abstract No. 431; and the J.Nt
Stone Survey, Abstract No. S16 in Wilson County, Texas, containing a portion of Tracts 1, 2 and 3
descneed in instrument to Mrs. Clara Jaksilc Marx, Sr., recorded in Volurne 420, Page 209 of the
· Wilson County Deed Records, containing a small portion ofthat certain S.000 acre tract described
in instrument to Robert R. Marx recorded in Volume 673, Page 799 of the Wilson Co\Ulty Official
. REAL FSl'ATE U&N NOTE Page JtJ/3
EXHIBIT
I B
542
..
. Public Records; oontaining a portion of that certain 326.047 acre tract descnoed in instrument to
Robert R. Marx recorded in VoltJme 732, Page 377 of the Wilson County Official Public Records;
and being more particularly described by metes and bounds on the attached Exhibit"'A."
Other Security for Payment: None
Borrower promises to par to the order of Lender the Principal Amount plus interest at the
Annual Interest Ra~. This note 1~ payable at the Pl~ for Payment and ~r~g to the T~ of
Payment All unpaid amomts are due by the Matunty D.ate. >Jter maturity. Borrowerpronuses to
.pay any unpaid principal ·balance plus interest at tlie Annual Interest Rate on Matured, Unpaid
Amounts. ·
If Borrower defaults in the payment of this note or in the perfonnance of any obligation in
any instruments~ or collateral to this note, Lender may declare the unpaid principal balance,
earned interest, and ~ other amounts owed on the note immediatel}' due. Notwithstanding any
other provision of.this note, in the event of a default, before exercising any. of Lender's remedies
under this note or any deed of trust or warranty deed with vendor's lien seeming it, Lender will first
give Borrower written notice of default and Borrower will have ten days after notice is given in
which to cure the default. Ifthe default is not cured ten days after notice, Boaower and each surety,
endorser, and guarantor waive all demandforpayment, presentation for payment, notice of"mtention
to accelerate maturity, notice ofacceleration ofmatmity, protest, and notice ofprotest, to the extent
permitted by law.
Borrower also promises to pay reasonable attom~sfceS and court and other costs ifthis note
is placed in the hands ofan attorney to collect or enforce the note. These ~enses will bear interest
ftom the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will
~Y Lender these expenses and interest on demand at the Place for Payment. These expenses and
mterest will become part of the debt evidenced by the note and will be secured by any security for
payment.
Prepayment: Borrower may prepay this note in any amount at any time before the ?vl'...aturlty Date
without penalty or premium.
Application of Prepayment: Prepaym.entB will be applied ·to installments on the last
maturing principal, and interest on that prepaid principal will immediately cease to accrue.
Interest on the debt evidenced by this note will not exceed the maximum rate or amount of
nonusurlous interest that may be contracted for, taken, reserved, charged, or received under law.
Any interest in excess of that maximum amount will be credited on the Princi~ Amount or, ifthe
Principal .Amount has been paid, refunded. On any acceleration or required or permitted
pre~yment, any excess interestwill be canceled automatically as ofthe acceleration orprql~ent
or, if the excess interest has already been paid, credited on the Principal Amount or, if the Principal ·
Amount has been·paid, refunded. This provision overrides any conlllcting provisions in this note
and all other instruments concerning the debt. .
Each Borr9wer is responsible for all obligations represented by this note.
When the context requires~ singular nouns and pronouns include the plural.
A default exists under this note if (1) (a) Borrower or (b) any other person liable on any part
of this note or who grants a lien or security interest on property as security for any~ of this note
(an "Other Obligated Party") Dill$ to timely pay or perform any obligation or covenant in any written
REAL ErTATE UEN NOTE
543
.agreement between Lender and Borrower or any Other Obligated Party; (2) any warranty9 covenant,
or representation in this note or in any otherw.dtten agreement between Lender and Borrower or any
Other Obligated Party is materially f81se when made; (3) a receiver is appointed for Bmrower, any
Other Obligated Party, or any property on which a lien or security interest is created as security (the
"Collateral Security'') for any~ ofthis note; (4) 81!¥ Collateral Security is assigned for the benefit
of creditors; (S) a banlauptcy or insolvency proCeeding is commenced:by Borrower, a partnership
of which Borrower ·is a general partner, or an Other Obligated Party: (6) (a) a barikruptcy or
insolvency proceeding is commenced against Bo1t0wer, a partnership of which Borrower is a
general partner, or.an Other Obligated Party and (b) the proeee1Hng con~ues without dismissal for
sixty daYs. the~ against whom the proceeding JS commenced admits the material allegations of
the petition against it, or an order for relief is entered; (7) any ofthe foUowing parties is dissolved,
begms to wind up its affairs, is authorized to dissolve or wind up its affairs by its governing body
orpersoDS:, or any event occurs or condition exists that permits the dissolution or ~ng up ofthe
affairs of any of the following parties: Borrower, a partnership of which Borrower is a general
partner, or an Other Obligated Party; and (8) any COllateral Sec~ is impaired by loss, theftt
Ciamage, levy and execution, issuance of an official writ or order of seizure, or destruCtion, unless
it is F.OJDPtlY replaced with collateral security of like kind and qualify' or restored to its fonner
condition. · ·
Ifany provision of this note conflicts with any 1!rovision of a loan agreement, deed of1nlst,
or security agreement of the same transaction between Lender and Borrower, the provisions ofthe
deed of tnist will govei:n to the extent of the conflict
:
I
This note will be construed under the laws of the state of Texas. without regard to
I
f. choice-of-law rules of any jurisdiction. .
i
I
FDP,LP
BY:~~---------------=~-:-.~---
Oeneral Partner
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RliflLESrDE LIEN NOTE PaseJq/S
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and Rl&JfdA11b~GOm1POftbalcertslllf.t antmct.cfGalfJuld ({I~~ ~L
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tMENC&, a!On' Ueu.atadf emlotald.U..l.al\ataac~llefo!JcwlQg:iwo(a):a.'Jmsesaftil\lftl-.
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1, south 1S°1l'iOOW• ~.at teat to.a ~~ftnmcl msr1c1ng Ute ltOrthW~
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'· 2. btl114-~8Pt.a0'1feetceeds of the Obligation are used to pq any debt secured by prior
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liens, Lender is subrogated to all the rightS and liens ofthe holders of any debt so paid.
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I 3. Lendermay apply any proceeds received underthepropcrtyinsurancepolicies
I co"Verlng the Propertv eithei to reduce the Obligation or to repair or replace damaged or
I destroyed improvements covered bythepolicy. Ifthe Property is Grantor's primaryresidence
1 . and Lender reasonably determines that repairs to· the improvements are economically
.feasible, Lender will make the property insurance proceeds aVailable to Gnmtor for repairs.
4. Notwithstanding the terms ofthe Note to the contrary, and unless applicable
law prohibits> all payments received by Lender from Grantorwith respect to the Obligation
or tlils deed of trust may, at Lender's discretion, be applied :fkst to amoun1s payable under
this deed of trust and then to amounts due and p~le to Lender with respect to the
Obligation, to be applied to late charges, principal, or interest in the order Lender in its
discretion detennines.
S. If Grantor falls to perf'onn any of Grantor's obligatj.ons, Lender may perform
those obligations and &e reimbursed by Grantor on demand for 8If1- amounts so paid,
including attorney's fees, plus interest on those amounts from the dat.es ofpayment at the rate
·stated in the Note for matured, unpaid amounts. The amount to be reimbursed will be
secured by this deed of trust. ·
6. If there is a default on the Obligation or if Orantor fails to perform ~ of
Grantor's obligations and the default continues after any required notice of the default and
the time allowed to cure, Lender may-
DEEDOFTRUST Pags3q1
.549·.
. (
a. declare the unpaid principal balance and eamed interest on 1he Obligation
immediately due; ·
b. direct Trustee to foreclose this lien, in which ~e Lender or Lender's agent
will cause notice ofthe foreclosure sale to be given as provided by the Texas Property Code
as then in effect; and
c. \lurchase the Property at any foreclosure sale by offering the highest bid and
then have the bid credited on the. Obllgati~ . . ·
' 7. LendermayremedyanydefaultwithoutwaivingitandmayVJa.i~eany dem.ultwithout .
waiving any prior or subsequent default
C. Trustee's Rights and Duties
Ifdirected by Lender mforeclose this lien, Trustee will-
. 1. either persol)ally .or by agent .give notice of the foreclosure sale as required by the
Texas Property Code as then in effect; · · ·
· 2. sell and convey all or part ofthe Property"AS IS" to the highest bidder for cash with
a general warranty binding Grantor, subject to the Prior Lien and to tho Other Exceptions to
Conveyance and Warranty and without represent.ation or warrMty, express or impli~ by Trustee;
3. from the proceeds of the sale, pay, in this order-
a. expenses of foreclosure, includillg a reasonable commission to Trustee;
b. to Lender, the full amount of principal, interest, attorney's fees, and other ·
charges due and unpaid; .
c. any amounts requir~ by law to be paid before payment to Grantor; and
d.; to Orantor, any balance; and
4. be indemnified, held hannless, and defended by ~nder against all costs,~
and liabilities incurred by Trustee for acting in the execution or enforcement ofthe trust created by
this deed of trust, which includes all court and other costs, including attorneys fees, incmred by
Trustee in defense of any action or proceeding taken against Trustee in that capacity.
D. General Provisions
1. If any of the· Property is sold under this deed of trust, Grantor must immediately
smTender possession to the purchaser. If Orantor fails to do so, Grantor will become a tenant at
sufferance of the purchaser, subject to an action for forci"ble detainer. ·
2. Recitals in any trustee's deed conveying the Property will be presumed to be true.
I
3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an ~lection of remedies. .
DEED OF TRUST. Poge4of1
550
4. This lien 'Will remain superior to liens later created even if the time of payment ofall
or part of the Obligation is extended or part of the Property is released.
· S. If any portion of the Obligation cannot be lawfully secured by this deed of trust,
payments will be applied first to discharge that portion. . .
6. Orantor &ssigns to Lender all amounts payable to or received by Orantor from
condemnation of all or part of the Property, from private sale in lieu of condemnation, and from
damages caused by public workS or construction on or near the Property. After deducting any
expenses incurred, including attomey's fees and court and other costs, Lender will either release any
remaining amounts to Gran.tor or apply such amounts to reduce the Obligation. tender will not be
liable for failure to collect or to exercise diligence in collecting any such amount.s. Orantor will
immediately give Lender notice of any actual or threatened proceedings for condemnation of all or
parf of the Property.
7. Orantor assigns to Lenderabsolutelys not only as collateral, all present and future rent
and other income and receipts from the Property. Orantor warrants the validity and enforceability
of the assignment. Grantor may as Lender's licensee oollect rent and other iricome and receipts as
long as Gran.tor is not in default with respect to the Obligation or this deed of trust. Grantor will
apply all rent and other income and receipts to payment of the Obligation and performance of this
deed oftrust, but ifthe rent and other income ana receipts exceed the amount due with respect to the
Obligation and deed oftrust, Oran.tor may retain the excess. If Grantor defaults in payment of the
Obligation or performance of this deed of trust Lender may tenninate Orantor's license to collect
r~ntand other income and then as Grantor's agent may rent the Property and oollect all rent and other
income and receipts. Lendor neither has nor assumes any obligations as lessor or -landlord with
respect to any occupant of the Property. Lender may exercise Lender's rigl:tts and remedies ·under
this p~h without takingpossessionoftheProperty. Lender will apply all.rent and other income
and ~pts collected under this ~h first to expepses incurred in exercising Lender's rights
and remeClies and then to Otantor's obligations with respect to the Obligation and this deed oftrust
in the order detennined by Lender. Lender is not required to act under this paragrap~ and acting
under this paragraph does not waive any of Lenders other rights or remedies. If Grantor becomes .
a voluntary or involuntary debtor in banlauptcy, Lender's filing a. proofof claim in bankntptcywill
be deemed equivalent to the appointment of a receiver under Texas law.
8. Interest on the debt secured by this deed oftrust will not exceed the maximum.amount
ofnonusurious interest that may be contracted for, taken, reserved, char~ or received under law.
Any interest in excess of that maximum. amount will be credited on the prlncipal of the debt or, if
that has been paid, refunded. On any acceleration or required or permitted prepa~ent, any such
excess will be c~celed automatically as of the acceleration or prepayment or, if already paid,
credited on the principal of the debt or, if the principal of the debt has been paid, refbnded. This
provision overrides any conflicting provisions in this and all other instruments c.oncenllng the debt.
9. In no ev.ent may this deed oftrust secure payment of any debt that may not lawfully
be secured by a lien on real estate or create a'Iien otherwise proluoited by law.
1O. When ~ oon~xt requires, singular nouns and pronouns include the plural.
DEED OFTRUST Pag4 S o/1
551
11. The term Note includes all extensions, modifications, and renewals of the Note and
all amounts secured by this deed of trust.
12. Grantor agrees to furnish on Lender's request evidence satisfactory to Lender that all
tax.es and assessments on the Property have been paid when due. _ .
13. If the Property is transfelTed by foreclosure, the transferee Will acquire title to all
insurance policie8 on the Property, including all paid but unearned premiums. .
14. IfGrantor transfers any~ ofthe Pro_perty without Lender's prior written consent,
Lender may declare the Obligation immediately payable and invoke any remedies provided.in this
deed of trust for default. If the Property is residential real property containing fewer than five
dwelling units or a residential manufactured home, this provision does not apply to (a) a subordinate
lien or encumbrance that does not transfer rights of occupancy of the Property; (b) ereation of a
purchase-money secmity interest for houseb.old appliances; (c) transfer by devise, descent, or
operation of laW on the death of a co-Granter; (d) grant of a leasehold interest ofthree years or less
without an option to purchase; (e) transferto a spouse or children ofGrantor or between co-Grantors;
\f) transfer to a relative of Grmitor on Ora.mot's death; (g) a transfer resulting from a decree of a
dissolution ofmarriage, a legal separation agreement, or an incidental property seUlement~ment
by which the spouse of Gran.tor becomes an owner of the Property; or (h) transfer to an inter vivos
trust~ which Orantor is and remains a beneficiary and occupant of the Property.
15. This deed of trust binds, ben6fits, and may be enforced by the successors in interest
of all parties.
16.. If Oran.tor and Borrower are not the same person, the term Grantor includes
Borrower.
17. ~tor and each surety, endorser, and guarantor ofthe ObliSatton waive all demand
for payment, presentation for payment, notice of intention to accelerate maturity, notice of
acceleration of matmity, protest, and notice of protest, to the extent permitted by law.
18. Orantor agrees to pay reasonable attorney's fees, trustee's fees, and collrt and other
costs of enforcing Lender's rights under this deed of trust if this deed of trust is placed in the bands
of an attorney for enforcement.
19. Ifany provision ofthis deed oftrust is determined to be invalid or unenforceable, the
validity or enforceability of any other provision will not be affected. .
20. ~e term Lender includes any mortgage servicer for Lender.
21. Grantor represents that this deed of trust and the Note are given for the following
purposes:
The debt evidenced by the Note is in payment ofthe P1JrChase price ofthe Property; the debt
is secured both by this deed oftrust and by a vendor's lien.on the Property, whichis expressly
retained in a deed to Orantor of even date. This deed of trust does not waive the vendor's
DEED OFTRUST Pop6of1
552
lien, and the two liens and the rights created by this deed oftrust are cumulative. L..a.ndermay
elect to foreclose either ofthe liens without waiving the other or may foreclose both.
. FDP,LP
BY:·------------------~--~~--
aenerat Parlner
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Acknowledgment
STATE OF TEXAS §
COUNTY OF _ __ §
This "instrument was· acknowledged before me on 2014 by
~-~---=-~---· General Partner of FDP, LP, a Texas Limited Parlnership, on behalf of
said partnership.
Notary Public, State of Texas
PRSPARBD IN THB OFFICB OP:
Paul Webb. PC
221 N. Houston Street
Wharton. Texas 77488
AFTBR. RECORDING RE11JRN TO:
DEED OP.TRUST Page1a/1
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EXHIBIT
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PROMULGATED BY THE TEXAS REAL. ESTATE COMMISSION (TREC)
FARM AND RANCH CONTRACT
• 08-01-2011
or as described on attache e bit. also known as ·Kua Ranch, Lavamia, TX
caddreSS/Zlp COde)i tQ98tfier WiBi iii HghtS, prMieges, and appurtenan._ pertilrilng thereta1
fnCludl.1ng but not lmtted to: water righls, chilms, permits, strips and gores, easements, ·ana
~ratlve or: association mem.bel8hips.
B. IMPROVEMENTS:
(1) F~M and RANCH IMPROVEMENTS: The foll~ng. Perman&ntlY .lnstall" ap~ ~uni-Jn
Hems, If .any: wlhdmttts, tankS, barns. ~ns, fences, ·gates, ·sh~, ootbuUdlhga, and
corrals.
(2) RESIDENTIAL IMPROVEMENTS: The house, garage. and an other fixtures and
improvements attached to the above-lng and lighting ··fixtures, chandeliers,
water softener system. kitchen equipment, garage door openers,· deaning equl1m.1ent,
shrubbery, landscaping, outdoor c:Od.mem O. fu~I tanks ;a· submersible
pumps fil pressure·tanks fil CO . S. (i gates ii chutes lJ Oth~r. - - - - - - -
(2) RESIDENTIAL AQ9ESSORIES: The foltoYilfig described related accessories, if ~ window
air condltlonfng units, stove, fireplace screens, .curtains. and rods. blinds, windoW. shadesl
draperies and rod.s, doqr keys. mailbox . k~~i~ above ground ~I. sWimmlng. pe>o
eqtitpment and maintenance a~es. artificial ilreplace logs, . and contrQts for: (n
satellite dfsh sysJems, (ll) garages. Oh) entry gafes, and (iv) other Improvements and
accessories. . ·
D. CROPS: Unlm otherwise agreed in writing. Seller has the right to harvest all growing crops
until delivery of possession of the Property.
E. EXCLUSIONS: The following lmi>rovements, accessories~ and crops wfll be retained by
Seller and must be removed prior1o delivery of possession: ...,•o
...n.,.•...__ _ _ _ _ _ _ _ __
F. RESERVATIONS: Any reseNation tor oil. gas, or other minerals Is described on the attached
TREC addendum. Seifer reserves the fonowlng water, timber, ·or other Interests: _wo..,.n...e_·- - - -
3. SALES PRICE:
A. Cas.h P-Ortlon of Sales Price .Payable· by B~er at closing •••.•.•..•.•.••• $ _ _...,30....0_._o_oo;i;;..;.;;;;o._o
B. Sum of aJI financing described beloW (excluding any loan funding
fee or mortga_ge Insurance ~mium) •.•••••...•.•....••••.•...•••.•• $ ~:-575, o~ 1 ~
5: ~~i=P~s:" ~ ~rn>w11i nOi ·Ila acijti&t8d·6858d 'ciri ihe ·surVey ·~u~ by 15=:if9k ~if!
lfthe Sales Price ISadjustea, the Sales Price wlll calculated on
be basls of$
the 3. 750.• Ol>
per acre. If the. Sales Price ts adjusted by more than 10%, either partym ay~te-rm.-·'""in-ate_tfi_t_s
.-....
contract by providing Written notice to the other ~ within . 14 days after the
terminating P,arlY receives the survey. If •neither par1.y terminates this contraet or If the
variance rs 10% or less, the adjustment Will be made to the amount In CJ 3A Cl 38
Cl proportionately to 3A and 38.
4. FINANCING: The portion of Sales Price not payable In cash will be paid as follows: (Check
applicable boxes berow)
TREC NO. 25-8
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EXHIBIT
16
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Conlrsct Concemfng _ _ _...w~-.::;.__"""""'"*5~~~~r--.11111A..,...~~"""""--Page 2 of 9 Ga-01-2011
Ad
Q A. THIRD PARTY FINANCING: One or more third party mortgage loans ln the total amount of
$ (exduding any loan funding fee or mortgage Insurance premium).
(1) PrOP,erty Approval: If tne Properj.y does not satisfy the lenders' u~derwrttlng
r&qulrements for the loan(s) On~udlng, but not limited to appralsal, lnsurablllty and
lenaer r~ulred ~rs), Buyer may terminate th1s contract by giving notice to Seller
~rior to ctoSlng and the eameSt money wlll be refunded 1D Buyer.
(2) Credit Approval: (Check one box only)
1;a ·(a) Thi& contract 1$ su.bJect to Buyer being approvQCI fo.r. th.. e financing described In the
attaooed Third Party ·Flnanclog Addenaum tor CredttApproval.
CJ (b) Thl!f .contract I~ not subJect lo Buyer being apJ)roved for financing and does not
lnvolVe FHA or VA financlng.
Q B. ASSUMPTION: The assump11cn of tne un~d principal balance of one or more promissory
notes describEld In the attaclied TREC Loan Assumption Addendum.
ml c. SELLER FINANCING: A promissory note from Buyer to Setler of$ 1 , 575 000 Q 0 r I I
secured by vendor's and deed of trust liens, and contalnlng the tenns and conditions
described ln the attached TREC Seller Financing Addendum. If an owner policy of title
Insurance is furnished, Buyer shaU furnish Seller with a mortgagee poOcy of tiUe Insurance.
5. EARNEST MONEY: Upon execution Of this contract by all pil!'tles, Buyer shall deposit
$10 ooo . oo as earnest money wtth hdgppd zu;1 •
as,~ agent at 3()0 E. Airllna
(addresal. Buyer shall deposit additional eamest·money o~~
fi.
yigtgria * TX 77201
. Wril'i escrow
agent within days after the effeotive date of·this contract. If Buyer fills to Cleposlt the
earnest money as reqUlred by this contract, Buyer wm be In default.
8. TITLE POUCY AND SURVEY:
II Seller's CJ Buyer's ~nse an owner policy
A. TITLE POLICY: ·setter shall furnish to Buyer at
of title Insurance (Title Pollcy).lssusd by:. ·B8FcfiftiifctA;
(Title Company) In the amc>unt of the sates Price, aated ae>r~r-ng. Insuring B~r
f;
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against loss under the provisions of the Title Polley, . subject to the promulgated exctuslons
.. ·)and ·tfle.folloWfn.g excep1Jons~
ncluding .axlstl.ng.bulldlmJ .and zoning o·.rdlnances
1 The stand~.rd printed exceptlora for standby fees\ tax$$ and assesaments.
or as may be approved by
B~ettn~ng.
(4) The standard Drlnted e~ceptlon as tomarltaJ right$.
(5) The standaid printed exeeption as to wafers, tide1ands, beaches. streams, and related
matters.
(6) The standard printed exception as to. discrepancies conflicts, shortages in area or boundary
nnesL~ncr:oacfiments or protrusions, or overlapping improvements. Buyer. at Buyer's expense,
may nave· the exception amended to read. "shortagastn area•.
B. COMMITMENT: Within 20 days after the TIUe Company receives a copy of this contract. Seller
shall fumish to Buyer a commitment for tlUe Insurance (Commltinent) and, at Buyer's
expense. legible copies of restrictive. covenants and documents ev1denclng excepjfons In the
COmmltmenf (~ptlon · Oopumentsl other than the stan~rd printed ·~~ceptions. S~ller
authorizes the Title Company to deffver the Commitment and Exception ~1S to Buyer
at B~r's ad~ shown In. Paragraph 21. If the Commitment and Exception Documents are
not.. delivered to Buyer Within the sDed . · fled time, the .time for delivery wlU be aU1omatlcally
extended up to 16 dajs orttie Closing Data. whichever Is earlier.
c. SURV.EY: The survey must be matte~~· a ~stared pro .. fesslonal land surveyor acceptable to
the TlUe·Companyana Buyer's·tender(s). Check one box.Only):
[l (1) Within days rthe effective date.of this contract. Seller shall furnish to
Buyer and Title Company Selle~s existing survey of the .Property and a Residential Real
PropertY Affld.avft promulgated by the Texas Department of lnsuranc$ (T-47 Affidavit).
If Seifer falls to ful'tllsh the existing swvey or affidavit within the time
prescribed, Buyer shall obta.In a new survey C. SelleCI e>epense no .later than
3 days prior to Closing Date. The existing survey l;;a wiU ~ wiO not be recertified tO
a date subsequent to ttie effective date of this eo~ct at the e>epense of Q Bu~r Cl
Seller. If the existing su.rvey Is not ap.pro.ved by e TIHa .Cs>ml)any or ewer's lender
(s), a new survey will be obtarned at the expense of Buyer ~ Seller no later than 3
acivs prior to Closing Date.
C (2) Within days after the effective date of this contract. Buyer shall obtain a new
survey .at Buyer's aXJ>ense. Buyer is deemed to receive the survey on the date of
actua recetptr." •he date specified In this paragraph, whichever Is earlier.
II (3) Within ~ Q__ d~ after the effective date of this contract. Seller, at Seller's expense
shaJI fum1Sh a new survey to Buyer.
a (4) No survey Is required.
D. OBJECTIONS: Buyer may object In writing to (I) defects, exceptions, or encumbrances to
title disclosed on the survey other than items E;N1) through (5) above; or disclosed In the
Commitment other than Items 6A(1) through (6) above: QI) any portion of the Property
(
17
( ContractConcamlng f.e~ lft1....y, n ~ 4c--n,9 •
(Alld188S :of PrOperty
1):- Pega:i.o!G 0&-01-2011
lying tn a special flood hazard area (Zone V or A) as shown on the current Federal Emergency
Management Agency map; or (RI) any exceptions which prohibit the fol1owlng use or aCtlvlty:
Buyer must object the earlier of (I) the Closing Date or (ii) 14 days after Buyer receives
the Commitment. Exception Documents. and the survey.. Buyer's failure to object within the
time allowed wfll constitute a waiver of Buyer's right to object; except that the requirements
In Schedule C of the Commitment are not waived. Provided Seller is· not obligated to Incur
any expense. Seller shall ctire the timely objections of Buyer or any third party l~ncler within
15 days after .Seller receives the objections and the Closing Date will be extended ·as
necessary. If objections are not cured Within such _15 day_ period, this· contract wUI terminate
end 1he eamest money will be refunded to Buyer uni~ Buyer w•lves the objection$.
E. EXCEPTION DOCUMENTS: Prior to the. execution of the contract. Seller has provided Buyer
with copies of the Exception Documents listed below or on the _attac;:hed exhibit. Matters
reflected tn the Exception Qocuments Usted below or 01i .tne attached exhibit will be pernillled
exceptions In the Title Polley and wm not be a basis for objection.to tlUe:
Dorn 1ment Data Recording Reference
F. SURFACE LEASES: Prior .to the execution of the oontract, .Seller has provided Buyer with
copt~ of written leases and given notice of oral. leases (Leases) listed below or on tne
attached exhlbH. The ·following Leases will be pertnltted exceptions in the Tltte Policy and
wlD not be a basis for objection to tlUe: _ _ _ _ _....___ _ _ _ _ _ _ _ _ _ __
G. TITLE NOTICES:
(1) ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering
· the Property examined by an attorney .of Buyer's s.electfon, or Buyer should be fumished
wfth or obtain a Title Polley. If a Tme Polley Is furnished, tl'}e Commitment s~ould be
promptly· :revtewect by an attorney of Buyer's chol_ce due. to the time ·11m1tatfons on Buyer's
right to obJecl
(2) STATUTORY TAX. QISTRICTS: If .the Property IS .Situated in. a utility or other statutorily
created district provldfng water. sewer, draln,ge, or flood control facilities and services.
Chaj)ter 49, Texas Water Code, requires Seller to deliver and Buyer .to sign the statutory
notice relating to the· tmc rate,. bonded Indebtedness, or standby fee of the district prior to
final execution ofthis contract.
(3) TIDE WATERS: If tile Property abuts the tldallY Influenced waters of the state, §33~135.
Texas Natural Resources Code, requires a notice regarding coastal area property 'to be
lneluded In the contract. An addendum containing the notice promulgated by TREC or
. reqc.ilred by the parties must be used.
(4) ANNEXATION: If the Property Is loc:ated outside the limHs of a munlclpality, Seller notifies
Buyer under §5.011, Texas Property Code, thaf the Property may now or later b' Included
In the extraterritOrial jurisdiction of a municipality .and may now or later be subject to
annexation by the munlclpallty. Ea~ munlclpallty maintains a map that depicts Its
boundaries and extraterritorial jurisdfcUon. To determine If the Property Is located wHhln a:
municipality's. extraterritorial jurisdiction or ts likely to be located within a municipality's
extraterrftortal Jurisdiction, contact all munlclpatities located in the general proximity of
the Property for further Information.
(5) PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE
PROVIDER: Notice required by §13.257, Water Code: The real property, described· In
Paragraph 2, that you are about to purchase may be located in a eertlflcated water or
sewer servl~ area. which Is· authorized by law to provide water or sewer service to the
properties In the certificated area. If your property Is located In a certificated area there
may be special costs or charges that you will be required to pay before you can _receive
water or sewer service. There rnay be a period required to con~truct lines or other
facilities necessary to provide water or sewer service to your property. You are advised to
(_
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~Concerning We #vr k!l~,..,,.,,,..; t?
detenntne If the property Is In a ~~/ea
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and contact the utlllty service provider to
detennine the cost that you wlll be required to pay and the period, if any. that is required to
Page4ors os-o1-2011
provide water or sewer service to your property. The undersigned Buyer h~eby
acknowledg~ receipt of the foregoing notice at or before the execution of a binding contract
for the purchase of the. real propertY described Jn Paragraph 2 or at closing of purchase of
the real property.
(6) PUBLIC IMPROVEMENT DISTRICTS: If the Property is in a public Improvement district,
§5.014 •. Property Code, requites Seller to notify Buyer as follows: As a purchaser of this
parcel of real property ~u are ·obligated to pay an assessm.. ent 1o a munJ.c.lpallty· or county
for an Improvement project undertaken by a public improvement district under Chapter 372,
Local Government Code. The assessment may be due annually or In periodic Installments.
More infonnatlon concerning the amount of the assessment and the due dates of that
assessment may be obtained from 1he municipality or county levying 1he assessment The
amount.of the assessments ls subject to change. Your failure to pay the assessments could
result In a lien· on and the fo~closure of your property.
(7)· TEXAS AGRJCULTURAL DEVELOPMENT DISTRICT: The Property 0 is Q ls not located. in a
Texas Agricultural Development District. For additional lnforimmon contact the. Texas
Department of Agriculture.
7. PROPERTY CONDmON:
A. ACCESS. INSPECTIONS AND UTILlTlES: Seller shaD permit Buyer and Buyer's agents acoess tQ
the Property at re~sonable times. Buyer may have the Property Inspected by inspectors selected
by Buyer and licensed by TREC or otherwise permitted by law to make lnspectlons. Seller at
Seller's expense shall tum on existing utmtles for inspections.
NOTICE: Buyer should determine the avallablllty of utilities to the Property suitable to satisfy
Buyer's needs.
8. SELLER'S DISCLOSURE NOTICE PURSUANT TO §5.008. TEXAS PROPERTY CODE (Notice):
(Check one box only)
(1) Buyer has received the Notice
8 (2) Buyer has not received the Notice. Within days after the effective date of this
contract, Seller shall deliver the Notice to Buyer. If Buyer does not receive the NOtice.
Buyer may tennlnate this contract at any ti~ prior to the closing and the earnest
money will be refunded to Buyer. If Seller delivers the Notice, Buyer may terminate
this contract. for any reason within 7 days after Buyer receives the Notice or prior
to the clc;>Slng, whl~~ver first OCCtJrs, and the earnest money will be refunded to Buyer.
i) (3) The Texas Property Code does not require this Seller to furnish the Notice.
c. SELLER'S DISCLOSURE OF LEAD-BASED PAINT AND LEAO-BASED PAINT HAZARDS is required by
Federal law for a residential dWelHng constructed prior to 1978.
0. ACCEPTANCE OF PROPERTY CONDITION: '(Check· one box only)
Iii (1) Buyer accepts-the Property in.Its present condition. . ·
C (2) Buyer accepts the Property In Its present condition provided Seller, at Seller's expense,
shall complete the.following specific repairs and treatments: _ _ _ _ _ _ _ _ __
•(Do not Insert
-gen-_e-_ra_l_p-hra-.-se-s-,-su_ch_a_s_'-su_b_lect-.-to-ln-s-pecu-_-ons-·-.'l"'!'i...
hat-do_no_t...Id_e_n_tifY_sp_eci_fi_crepairs.)
NOTICE TO BUYER AND SEU.ER: Buyer's agreement to accept the Property In Its present
condition under Paragraph 70{1} or (2) does not preclude Buyer trom lnspecti.ng the Property
vnder Paragraph 7A. fro.m. negotlatl,ng repairs or treatments In a subsequent -amendment or
m>m tennlnattng this contract during the Option Period, If any.
E. COMPLETION OF REPAIRS: Unless otherwise agreed In writing, Seller shall complete all agreed
repairs prior to the Closing Date. All required permits must be obtained, and repairs must be
perfonned by persons who are licensed or otherwise permitted by law to provide such repairs.
At Buyer's election, any transferable warranties received by Seller with respect .to the repairs
will be transferred to Buyer at Buyer'& expense. If Seller falls to complete any agreed repairs
prior to the Closing Date, Buyer may do so and receive reimbursement from Seller at closing.
The Closing Date wlll be extended up to 15 days, If necessary, to complete repairs. ·
F. LENDER REQUIRED REPAIRS AND TREATMENTS: Unless otbelWise agreed In writing, neither
party Is obligated to pay for lender required repairs, which Includes treatment for wood
destroying Insects. If the parties do not agree to pay for the lender required repairs or
treatments, this contract will terminate and the earnest money wlll be refunded to Buyer. If the
cost of tender required repairs and treatments exceeds 5o/o of the Sales Price, Buyer may
terminate 1hls contract and the earnest money will be refunded to Buyer.
G. ENVIRONMENTAL MATTERS: Buyer Is advised that the presence of weUands, toxic substances,
Including ·asbestos and wastes or other environmental hazards, or the fresence of a threatened
or endangered species or Its habitat niay affect Buyer's Intended use o ·the Property. If Buyer Is
concerned about these matters, an addendum promulgated by TREC or required by the parties
should be used.
H. SELLER'S DISCLOSURES: Except as· otherwise disclosed In this contract, Seller has no
knowledge of the following:
1 an floodfn of the Pro e which has had a material adverse effect on the use of the Pro
TAR 1701 Initialed for Identification by BuyerL wi:- _ a n d Seller j,.J!l TREC NO. 25-8
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Contract Concemlng _ _~~~--.,..,."""'~~~~~~----'~-- Page 5 of9 08-01-2011
resso
(2) any pending or threatened litigation, condemnation, or spectaJ assessment. affecting the
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PrOperty:
(3) any emitronmental hazards or condtuon.s materially affecting the Property;
(4) any dumpslte, landfiU, or underground tanks or contalners now or previously located on the
Property:
~
.. ·e.raJ or state law or ,.gulati.on, ecting the Property: o.r
any w.aflands, as d.efl.ne.d by fed affi.
any threatened or endangered species .or their habitat affecting the PrOperty.
I. SIDENTIAL SERVICE CONTRACTS; Buyer may purchase a residential servfoe contract from a
residential servl~ company Ileen~· by TREC. If Buyer l>Ul'Chases a residential service contrad.
Seller shaU reimburse Buyer at closing for the cost of the residential service conlrad In Qri
amount not exceed1ng $ . . Buyer should review any resldenttal servfce contract
for the scope of coverage, excluslons and limitations. The purct:aase of a residential service
contract Is optional. Slmllar co~erage may be purchased from various companies
authorized to do business In Texas.
J. GOVERNMENT PROGRAMS: The Property Is subject to the government programs listed
below or on the attached exhibit Hone
Seller sJ:1aU p[9Vlde . Buyer with co~.~_pt"""~~o~r'""'!.a!"ll''l~g~ov~e'!"'!.mme~. AriY-.--a-lf9....ca--$ri-.
. . . -....
~-~nta1~"9'!P'!'-'.~~ram~~a~grQS~_-.--~---~""'Inti
or proration of paY.nJent under: govemmenfal programs is made by separate · agreement
between the partles··whlch wlll survtVe clo$1ng. ·
a. BR.OKERS' FEES: All obligations of the parties for payment of brokers' fees are contained. ln separate
written agreements. ·
9. CLOSING:
A. The clos.lng.of the sate will be on or before March 1Sth...r... 2012 , ., or within 7 days
after ot;~ons made under Paragraph 60 nave been cureo · or watv8d, Wl11aiever date ·IS later
{Closing Date). If either partY fall$ ~o close the sale by the Closing Date, 1he non-defaulting
party may exercise the remedies contalned·tn Paragraph 15.
B. At clos{!lg:
(1) Selle.t sha.11 execute and delive ..r a general .warranty deed conV&Y.ing. tlU.e to the Properfy to
BuyQr end showing no a.ddltionar exceptions to. those permitted In Paragraph 81 an
a~tgnment Qf Leases, and furnish tax· statements or cerUficates showing no delinquent
taxe8' on the· PropertY.
(2) Buyer shall ~the Sates Prtce In good ~acceptable to the escrow agent.
(3) Seller and B~. shall exe~ 8nd. delM~r 81'.'Y notfC::es. ·.statemeritS, certifica~s, affidavits,
reteases, loan d~ments and other .documents reasonably requl~- for the closing of the
sate:and the·1ssoanceof1heTIUe P.oltY.
(4) There wm be. no ."e.ns, assess ... =·merits or secu.rlty Interests against the P~p~ whlCh wlll not
be satisfied out Of the. sales s unless· securing the payment of any loans assumed by
Buyer and assumed loans wH not be In default
(5) If the .Proper!>.'-. is subject tO a lease,. Seller s.hal.I (I} .de.Over to Bul9r the lease.'Cs). an.d th.. e
move-In condition form s!gned by the tenant, If ~~ ~ (II) tra~fer securltv. deposits (as
d~.fined under §92 •. 102. P.•l'C)r.tY Code);. If a11y.• to.. B!)Yer. fn suth.. an ..·ev(!~t. Buy~r shall
deliver to the. tenant a s'g~. statenient a~owledglng that ~e. B~r h8s reoelV-' 1he
security depostt and ls ~Ible for the retum of tfle· security depoSlt, and specifying the
exact dollar: amount of the secunty deposit .
10. POSSESSION: Seller. shall deliver to B~poss.esslon of the PrQpe.
condttlon, ordinary wear and tear excepted:
Its present or required
upon dosing .and fumifng ·· accoi"dlrig to a temporary
residential lease form ·promulgated by T . c or o1her ·written lease req lred by _tfte parties. Any
r:i"
possession by Buyer prior to closing or by Seiter after closing which Is not aUthorized by a wrlttan lease
WIU establish a tenancy at sufferance relationship betWe8n the parties. Consult your Insurance
agent prior to change of ownership and pc>ssesslon because Insurance coverage may be
llmlted or t~rmlnated: The absence of a written lease or ~pproprlate Insurance coverage may
expose the parties to economic ·loss.•
11. SPECIAL PROVISIONS! (.:Insert onlv factual statements and business details appJicable to the
sale. TREC rules prohibit Hcensees fi'om addlng factual statements or busln8$S details for which a
contract addendum· or other form has been promulgated by TREC for mandatory use.)
Buyer i.s a licensed real estate agent. Buyer and Seller aqree to the
following details to be worked out before closing: 1. Seller will survey
out apprc>ximately 21 acres which will not convey with this sale. 2. Seller
will sign a first right of refusal and option agreement for the 21 ac~es
which will allow buyer to purchase the proeprty in the future. 3. Seller will
retain an easement for a.caess to the 21 acres. 4. Seller aqrees to fence the
21 acres withi.n 120 days after closing.
TAR 1701 Initialed for identification by Buyer ~ and Seller .Bl!L TREC NO. 25-8
Producod with zlpFCllnG by zlplogbt 16070 ~en M!Jo Road, Fto$Cr, Michigan 48028 www zipl·ngir mm Lavcmia
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(Addrea of Pnijierty)
12. SETTLEMENT AND OTHER EXPENSES:
A The followlng e),r~Y stated· In this contract for such expense to be paid
by a paffi', that party may terminate this contraet unless the other Qartv ~grees · to pay such
excess. Buyer may not pay ch~"8 and f~es expr•sly prohibited ~Y FHA, VA. Texas· veterans
Land Board or other govemmel'ltal loan .Program regulatfOns.
13. PRORATIONS AND ROLLBACKTAXES:
A. PRORATIONS: Taxes for the current yearblntere~ maintenance fees. assessments. dues and
rents wlll be prorated through the Closlng ate. The tax proration may .be calculated taklf!a irito
consideration any change In exemptions that will affect· ttie current year's taxes. If taxes for the
current year vary from the amount prorated at closlng, the parties shall adjust the proratfons
when taX statements for the curren year are avallal>le. If taxes are not paid at or prior to
closing. Buyer shall pay taxes for the current year. Rentals which are unknown at time of
closing wlll 6e prorated between Buyer and Seller When they become known.
B. ROLLBACK· TAXES: If this sale. or Buyer's use· of the Prope~ after closing results in the
assessment of addHfonal taxesL penalties or Interest (Assessments) for periods. prior to clostng.
the Assessments will be the· oolfgatlon of Buyer. If Seller's change In. use of th~ Properly prior
to closing or ·dental of a special use valuation on the PropertY claimed by .Seller results fn
Assessments ·for ~rlods pnor to ctostng, the Assessment.s will be the obligation of Seller.
Obligations fmposea by this paragraph will survive dosing. · · ·
14. CASUALTY LOSS:· If BO)! part of the Pro~rty is damaged or destroyed by fire or other casualty
after the effective date of this contract. seller shall restore the Pro~rlY._ to its _previous concfrtlon
as.. soon as reasonably. possible. but in any event by .the Closing Date. If SeDer .fans to. do 89 due tO
factors beyond SeRer's ®ntrol, Buyer may {a) terminate this ex>ntract and the eamest ·money· will.
be refunded to Buyer, (b) extend tile time for _perfonnance UP. to 15 days and the Closing Date wiD
be extended as necessary or ·(c) accept the Pro~tfy In Its CJamaged condition with an assignment
of' Insurance proceeds and receive credit from ·Seller at closing In the amc,runt of the deductible·
under the insurance 1>9Hcy. Selle~s obligations under this paragraph are independent of any other
obUgatlans of Seller urider this· contraol
15. o_EFAULT: If Buyer falls to comply with this conti:act. Buyer will be In default. and Seller may (a)
enforce specific perfonnance, seek such other relief as may be provided by law, or both, or (b)
tennlna1e this contract and receive the eamest money as liquidated damage$; thereby r~easlng
both parties from this contract. If, due to factors beyond Seller's c:qntrol, SeUer falls within the
time allowed to make any non-casualty repairs or deliver the Commitment. or survey. if required
of Seller, Buyer may (a) extend the time for performance up to 15 days and the Closing Date will
be extended as necessary or (b) terminate this contract as the sole remedy and receive the
earnest money. If Seller falls to comply with this contract for any other reason, Seller wlll be In
default and Buyer may (a) enforce specific. performance, seek such other relief as may be
provided by law, or both, or (b) t~nnlnate thl~ contract and receive the earnest money, thereby
releasing both parties from this contract.
16.. MEDIATION: It Is the policy of the State of Texas tc;> encourage resolution of disputes through
alternative dispute resolution procedures such as mediation. Any dispute between Seller and
Buyer related to 1hls contract which Is not resolved through lnfonnal discussion CJ will 1J will not
I be submitted to a mutually acceptable mediation service or provider. The parties to the mediation
j( TAR 1701 Initialed for Identification by Buyer L f/v r=__ and Selle~ ................ TREC NO. 25-8
~ mm
Produced with zlpFonn$ by ztpl.ogbc 18070 Flftacn Mlle Road, Fraser, Mlchlgao 48026
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Contract Concerning
(Address of Property)
•
(.17 2. 0 IJ1 tlJ r ,Y La11 e /A.;bllH't It';,. 7 of 9 OS.01-2011
shaU bear the mediation costs equally. This paragraph does not preclude a party from seeking
equttable relief from a court of competent jurisdiction.
17. ATTORNEY'S FEES: A Buyer, SeHer, Usting Broker. Other Broker~ or escrow agent who prevalls
In any legal proceeding related to this contract Is entitled to recover reasonable attomey's fees
and all costs of such proceeding.
18. ESCROW:
A. ESCROW: The escrow agent Is not Ol a party to this contract and does not have llabDlty for
the performance or nonperformance of any party to this contract. (U) liable for Interest on the
eamest money and (DI) Hable for the loss of any earnest money caused by the failure of any
financial Institution In whlCh the earnest money has been deposited unless the financial
Institution ls acting as escrow agent. .
B. EXP:~SES: At cl~tng. the e.arn-1 money mu~t be appHed .first to $1Y cash down P8Y(n..ent,
then to .Buyer's. E>,cpenS~·.·~.00 any .exqess ~fµ.nded t() ell)'~r. If n~ (:lo~lng ~rs. .~cn;>W
agent may: (I} requite. a. written release of Hablflty of the escrow agent . from . all Parties. · {U}
require payment .of unpai~ expenses lnc;urred on behalf of a party,_ and (Ill) 011ly dEl(ftic:.l fl:om
the eamest money the ·amount of ·unpaid expenses inc:uri"ed On behalf of the party receiving
the earnest money.
C. DEMAND: Upon termination of 1his contraot•. either party or the escrow agent may send a
release of earnest money to each party and. the parUeS shall execute counterpart$ of the
release and del1ver same to the escrow agent If either party falls to execute ·the release,
either party may make a written demand to the escrow ·agent for the earnest money~ If only
one party makes written d~mand. for the earnest money. escrow agent shall promptly provide
a copy of the demand to the other party. If escrow ~gent does not receive written objection
to the demand from .the other .Party within 15 days •. e8crow ·agent may disbUNS the earnest
·money to the party . m,aktng· demand. reduced by the. ~mount of U'1pald expenses fncurred on
behalf of the party receiving the eamein money and escrow agent ·may .Pay the ·same to the
~. If escrow agent compll~ with the provisions ·Of this ·par_:ag_raph, each party hereby
releases escrow agent fr9m all adverse dalms related to' ttw disbursal of the earnest money.
D. DAMAGES: Any party who wrongfully falls or refuses to sign a release acceptable to the
escrow agent within 7 days of receipt of the request will be liable to the other ·party for
Hquidated damages In ~11 amount equal to the sum of.·. (I} three times the amount· of the
earnest money; (ti) the earnest money; (Ill) reasonable atlomey's fees; and (Iv) all· costs of
suit.
E. NOTICES: Escrow agent's notices will be effective when ~nt in compliance with Plµ'agraph
21. Notice of objection to the .demand will be deemed effective upon recetpt by escrow agent.
19. REPRESENTATlONS: All covenants, representatiol')s and. warranties In this ·.contract ~urvive
closing. If any representation of :Seller In this contract is untrue on the Closlng Date. ~lier will
be In default Unless expressly. prohibited by· written agreement. Seller may continue to show the
Property and receive. negotiate and accept back up offers.
20. FEDERAL TAX REQUIREMENTS: If Seller Is a ~ore1gn person,• as defined by applicable law, or
If Seller falls to deliver an affidavit to Buyer that Seller is ·not a "foreign person," then Buyer shall
withhold from the sales prOceeds an amount sufficient to oornply· with applicable tax law and
dellW!r the same to the lntemal Revenue Service tog~ther .with appropriate tax fonns. Internal
Revenue Service regulations require filing written reports ff currency In excess of specified
amounts is received In the tran$actlon~
21. NOTICES: All notices from one party to the other must be in writing and are effective when
mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows:
To Buyer at: F o P. a.. P To Setler at:
1204 ZandMnpn ~ o be.- -r 1411< m
Jourdanton, 'l'X 79026
Telephone: <830> 570-3570 Telephone: c2101110-3856
Facslmlle: C830> 769-1001 Facsimile: - - - - - - - - - - - - - - - -
larry@atascosawildlifesupply.c
E-mail: om E-mail:
------------------------- ------------------------
TAR 1701 Initialed for identification·by Buyer L. w E and Seller. TREC NO. 25·8
Produced v.1th zlpFOtTne by zlploglx 18070 Flltoen Mlle Road, Fmser, Michigan 48026 WWW zfDI ngly mm
22
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Contract Concemtng ~;..-,--~-~~--W._'-_.
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(Address of Property)
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~-'....~..._T,,____ Page 8of 9 OB-Oh2011
2Z. AGREEMENT OF PARTIES: This contract contains the entire agreement of the parties and
cannot be changed except by their written agreement Addenda which are a part of thls contract
are (check alt appllcable boxes):
CJ Third Party Anancing Addendum for Credit Q Addendum for •sack-Up• Contract
Approval
I) Seller Flnancing Addendum C Addendum for Coastal Area Property
CJ ~dendum for Property Subje~ to CJ Environmental Assessment, Threatened
Mandatory Member$hfp In a Property or Endangered· Species •and Wetlands
Owners Assoctatlon Addendum
Q Buyer's Temporary Residential Lease Cl Seller's Temporary Residential Lease
Cl Loan Assumption Addendum Q Short Sale Addendum
Q Addendum for Sale of Other Property Cl Addendum for Property Located Seaward
by Buyer of 1he,Gutf lntracoastal Waterway
Q Addendum far Reservation of OU. Gas Cl Addendum for Seller's Disclosure of
and Other Minerals Information on Lead-based Paint and
Lead~ased ·pa1nt Hazards as R~ulred. by
Federal t.aw
a otllerOlst): - - - - - - - - - - - - - - - - - - - - - - - -
23. TERMINATION OPTION: For nominal conSlaeratlon,.the receipt of which Is hereby. acknowledged
by Sell~r. and Buyefs agreement to pay Seller:$ 100. po . (Option Fee) within 2 days.Sft8r
the effective date Qf this contract. Seiter ,grants Buyer 1he_ unreStrtcted ~ht to . termtnata this
contract. by glvfng ·notice oftem1lnatlon ~ Seller Within 15 . days after the effective date of
this contract (Option Period). lf'.no dollar amount ts7aiid as:llii15ptton Fee or If ·euyer tans to
pay the Optto.11. Fe.e to _sel. fer with_tn th_e U.me_ .pres_oribed_• tbls__·. Paragraph Wiil not be a _part of this
contract and B~f shall _not have:tha··uni'~cted right to t$nnlriate this contract If .tMter gives
notice of tennlnidlon wtthln the time prescribed, the Option Fee wfll not be refunded: howev~r.
any eamest_ money_ ·wt_·ube refunded_ to .a._uyer! The Option Fee m_ wlD .Q wm not_ be~ to the
Sal~ p~ at closing. Time. Is of the essence for this paragraph and strict compliance with
the tlme"for perft>rmance .fs required.
24. CONSULT AN ATTORNEY: TREC rules prohibit real estate licensees from giving legal advice.
READ THIS CONTRACT CAREFULLY. If y0u do not understand the effect of this eontraot. consult an
attorney BEFORE signing.
Buyer's Seller's is: _________________
Attorney
Attomey I s : - - - - - - - - - - -
Telephone:----------- Telephone:--------------
Facslmlle: - - - - - - - - - - - - Facsimile: - - - - - - - - - - - -
E-mail:
Buyer
The farm of th!& c:ontract has been approved by the Texas Rest Es1ate Convrisslon. TREC forms are tntended for use only by
i trained real estate rtcensaas. No reprosentatJon Is made us to the lugaJ vafidity or adequacy of any plovision in any specffic
tranMdJona. It ls not fntended fer complex ~-Texas Real Estate Commlssfon, P.O. Box 12188, Austin, TX 78711-
i 2188. (512) 936-3000 (hltp:llwww.trec.tuas.gov) TREC NO. 25-8. This form replaces TREC NO. 25-6.
!lI.
I TAR 1701 TREC NO. 25-8
i Producod with zlpForrnSD by zlpl.oglx 18070 Flftoen Mifo Raad, FIDlctr, M!Ghlgan 48026 www ztpt ngn mm Llmmia
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RATIFICATION OF FEE
Listing Broker has agreed to pay Other Broker ofthe1otal.Sales Price when Listing Broker's
fee Is received. Escrow Agent Is authorized and directed to pay Other Broker from U~ng Broker's fee at
closing.
Other Broker: Listing Broker:
By: By:
BROKER INFORMATION AND AGREEMENT FOR PAYMENT OF BROKERS' FEES
other Broker UcenseNo. Usting or Principal Broker License No.
Licensed· Supervisor of Associate Telephone Llcenaed Supervisor of Ass9ciate Telephone
Associate Associate
Aaaress Address
City State Zip City State Zip
Telephone Facsimile Telephone Facsimile
e..maJI E-mail
represents CJ Buyer only as Buyers ag~rtt represents Q Seller only
QSener as Ustlng Broker's subagent ti Buyer· only
t:I Seller and Buyer as an intennedlary
Upon closing of the sale by Seller to Buyer of the Property described t11Jhe contract to which this fee
agreement Is attached: (a)Q SellerC. Buyerwill pay_:.UsjingJP_d!lcipal Brc>ker U a cash fee of~-----
or Q o/o of the total Sales Pri08i ~nd (b) lJ SellerlJ Buyer.will pay Other Broker CJ a cash fee of
$ or 0 % of·the total Sales Price~ Seller/Buyer authorizes and directs Escrow Agent to pay
the. brokers from the proceeds at closing. .
Brokersi fees are negotiable. Broker&' fees or the sharing of fees, betwaen brokers are not fixed. controlled,
recommended, suggested or maintained by the Te~s Real Estate Commission.
Seller Buyer
Seller Buyer
Do not sign If there Is a separate written agreementfor payment of Brokers' fees.
OPTION FEE RECEIPT
Receipt o f $ - - - - - - - - (Option Fee) In the form of _ _ _ _ _ _ _ _ _ ts acknowledged.
Seller or Listing Broker Date
EST MONEY RECEIPT
........=r-1i....~'-*".._......_ Earnest Money In the form of .pm~~:..u..i~....J..;~'11/.,/r\l
Oate:.~'--~~~~~~-------
L t •
Cty
TAR 1701 TREC NO. 25·8
Produced with zlpF~ by zlpLoglx 18070 Flflaen MllD Road, fra&Qr, Michigan 48028 iwav zip! "W mm
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PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC)
• (TAR-1914 12-4-06
12-04-06
SELLER FINANCING ADDENDUM
TO CONTRACT CONCERNING THE PROPERTY AT
f.R20/{}f.rK /.u,n G Marx Ranch Layez:nia TX
(Address ot. Property)
A. CREDIT DOCUMENTATION. To establish Buyer's creditworthiness, Buyer shall deliver to
Setler wtthin days after the effective date of this contract. credit report a a
ver1flcation of employment. Including salary 0 verification of funds on deposit In financial
institutions 0 current financial statement and D ------------------
Buyer hereby authorizes any credit reporting agency to furnish copies of Buyer's credit reports
to ~.eHer at Buyer's sole expense.
B. CREDIT APPROVAL. If the credit documentation descrlbe.d In Paragraph A Is not delivered
within the ~cffied time, Seifer may terminate this contract by notice· to Buyer Wlttln 7 days
after explration of the time for delivery. and the earnest money wm be paid to ~lier. If lhe
credit doc:umentation Is timely delivered, and Seller determines In SeUer's sole ~!$cretlon that
Buyer's credit Is unacceptable, Seller may terminate this contract by notice to B'uyer · Wfthln 7
days after eXplratlon of the time for dellveiy aJid the earnest money wlll be refunded to Buyer. If
Seller does not tennlnate this contract. ·Seller will be deemed to have approved Buyer's
creditworthiness.
C. PROMISSORY NOTE. The promissory note (Note) described In Paragraph 4 of this contract
payable by Buyer to the order of Seller will bear Interest at the rate of 4 . ?OO % per annum and
be payable at the place designated by Sener. Buyer may prepay the Note In whole or in part
at any time without penalty. Any prepayments are to be ·applied to the payment of the
Installments of principal last maturing and Interest will Immediately cease on the prepaid
princfpal. The Note wlll contain a proVlslon for payment Of a late fee of 5% of any installment
not pald within 1O days of the due date. Matured unpaid amounts wJll bear Interest at the rate of
1%% per month or at the highest lawful rate. whichever Is less. The Note will be payable as
·follows:
Q (1 )' In one payment due after the date of the Note
With interest payable Q at maturity Cl monthly fJ quarterly. (check one bOx only)
Iii (2) In monthly Installments of$ 12. 048. 64 9 including interest 0 plus Interest (check
one. box only) beginning 30 days after the date of the Note and continuing
monthly there.after for 180 months when the balance of the Note wilt be due and
payable.
a(3) fnte.~st only In monthly installments for1he first month(s) and thereafter In
Installments.of$ 0 including Interest. Cl plus.Interest ((j\eck.one·box
o~ly) beginning after the date of the .Note and continuing ·monthly
thereafter for months when the balance of the Note will be due and payable.
D. DEED OF TRU.ST. The deed of trust securing the Note will provide for the following:
(1) PROPERTY TRANSFERS: (check one box only)
181 (a) Consent Not Required: The Property may be sold, conveyed or leased without the
consent of Seller, provided any subsequent buyer assumes the Note.
Q (b) Consent Required: If all or any part of the Property Is sold. conveyed, leased for a
period longer than 3 years, leased with an option to purchase, or otherwise sold
(including any contract for deed), without Seller-s prior written consent. which consent
may be withheld In Seller's sole discretion, Seller may declare the balance of the Note
TREC NO. 2S.5
Meck Real Bsute 1845 Water St Kcnvillc. TIC 780"..8
Phoac:(830)2.S7-8881 Fax: Mark Meck Lavcmia
Produced With ZlpFormS by Zlplcgtx 18070 Fdteen Mlle Road. Fraser. Michigan 48028 www zip• ng!x mm
25
Seller Financing Addendum Concerning
• (TAR-1914)12-4-06
Page 2 of 2 12:-04-06
{/'20 @l'AcJr LA'a (. Marx Bar1M t.pxemta,
(Address of Properly)
n
to be Immediately due and payable. The creation of a subordinate lien. any conveyance
under threat or order of condemnation, any deed solely between buyers, or the passage of
title by reason of the death of a buyer or by operation of law will not entftte Seller to
exercise the remedies provided' In this paragraph.
NOTE: Under (a) or (b), Buyel's liability to pay the. Note wlll continue unless Buyer obtains a
release of liability frQm SeHer.
(2) TAX AND INSURANCE ESCROW: {Check one box only)
Ii (a) Escrow Not Required: Buyer shall fumish Seller, before each year's ad vatoram taxes
bec:ome delinquent. evfdenee that all ad valorem taxes .on the Property have been paid.
Buyer shall annually fUmJsh Sellar evidence of paJd.up c:aSualty Insurance naming Seller as
a.mortgagee loss payee.
0 (b) Escrow Required: With each Installment Buyer shall deposit In escrow wl1h Seiter a pro rata
part of the estimated annual ad vaJoi'em taxes and casualty Insurance premiums for ·the
Property. B~ shall pay any deficiency within 30 days after notice from Seller. Buyer's
fallure to pay the deficiency WUI · be a default Under the q~ ¢ tru$t. Buyer is not re(lU\~
to deposit any escrow payments for taxes -nd lt\$Urance that are ®{Joslt$d with a St.Jperior
ltenholder. The casualty insurance must name Setler as a mortgagee to• payee.
(3) PRJOR LIENS: ~Y demu1t under any Hen superior to the lien $.$CUring the Note win be a defaµtt
under s ~curing 1he Note.
r
F'DP, LP Robert Marx
Buyer Seller
~W rrl.c11.f<
.,,
Debbie Marx
The form of this contract has been a,pproved by the Texas Rest Estate .Commission for use with simllarty approved
or promulgated contract forms. TREC rorms are inten~ed for use only by ·trained real estate llcensees. No
representation is made as to the legal valldrty or adequacy of any provlslcin ln any specfflc transactions. It I& not
intended ror complex transacUona. Texas Real Estate Con'unlsston, P.O. Box 12188, Austin, TX 78711-2188, 1·
800.250-8732 or (!;12) 459-6544 (http:J/\vww~~~stat~lx.US) TREC No. 26-5. This. form replaces TREC No. 26-4.
TREC NQ. 26-5
Produced wllh ZlpFotma ~ ZlpL.oglx 18070 Fifteen Miio Road. Fraw. Michigan 48026 WMJ ztpt "'111 mm
26
•
f 89-109
FIELD NOTES FOR A 326.047 ACRE TRACT
BEING 326.047 acres of land more or less, being comprised of the
J. N. Stone Survey, Abstract 516, the Benjamin White survey,
Abstract 431 and ·117.047 acres out of the G. c. & s. F. R. R.
survey, AJ)stract 442, Wils.on county, Texas and also being oom-
prisC:td of a 49 aQl:'.e tract des..Prib~d ~s ~Tract l'·'r a 160 aare
tract described as "Tract 2 1• and 117. 0·4 7. acres out .of a 321 . 1/3
acre tract described as "Tract 3" all of wh.ich are recorded in
voiume 4~.o, Pages 2.09-212 of the Deed Records ~f Wilson · County,
'J!EQCas ~·being _more p~rticul~ly ~escri.b·ed as follows.:
BEGINNING at a set stone found at a fence comer for the most
southerly corner of this tract, said point a1so beit1g the most
southerly corner of the above· referenced 49 acre tract de~cribed
as "Tract 1 n and the app~oximate mo·st southerly COX'l'.ler o·f the J.
N. Stone Survey, Abstract 53.6;
THENCE N 14°02'14" E, 3784,15 feet alonq an existinq west fence
line of this tract to an iron pipe found in same for a corner of
this tract;
THENCE s 76°07 1 18" E, 359.49 feet to an iron pipe found for a
corner of this tract;
'l'HENCE N 04°46 1 32" W, 1031.20 feet and N l3°5J.'OO" B, 915.85 feet
to an iron pipe found for a corner of this tract; _,.
w, 29.98 feet to a iron pipe found in an
THENCE N' 76°00 1 46 11
existing fence line for a corner of this tract.;
THENCE N 16°13 1 49 11 E, 29.96 feet along said fence to an iron pin
found at a fence corner for tbe northwest corner of this tract1
THENCE s 75°36'14" E alonq an existing fence and passinq an iron
pin found at a fence corner at 248.95 feet and continuing a total
distance of 654.95 feet to a point for an interior corner of this
tract;
THENCE s 14°23 1 46" w, 364.42 feet to a point for a corner of this
tract:
THENSE s 76°13'37" E, 4625. 74 feet to an iron pin set and
s 29 57' 15 11 E, 61. 20 feet to an iron pin set at a fence corner
for the northeast corner of this tract;
.27
~ .
• •
TBENQE along the existing southeast fence line of this tract
s 5!t"'30':)9" w, 3952.09 feet to an iron pipe found at a fence
conter and S 58 0 30 1 52" W, 3566.00 feet to the PLACE OF BEGINNING
and containing 32·6 •.047 acres of land more or less.
I hereby certify the above to l>e true and correct acoordinq t<> an
ac:tual survey made on the gr9und under my supervision this the
2.4 f:!1 day of October, 1989.
~~
28
f.89.-109
nELD NOTES FOR A 186.152 ACRE TBACT
BEING 186.152 acres of land more or less out·af the G. c. & s. F.
R. R. survey, Abstract 442, Wilson county, Texas and also beinq
out of a 321 1/3 acre trac:t of land described as "Tract 3" in
Volume 420, Pages 209-212 of the Deed Records of Wilson county,
Texas and beinq more particularly describe,d as follows::
BEGINNING at an ix-on pin found at a fence corner in the north
line of said 321 1/3 ~ere tract f~r the northwest corner of this
tract and being s 76 :L6''03" E, 249.63 feet fJ:"om t,he nortliwe•t
corner of the above refel;'enced 321 1/3 acre tract and the approx-
imate northwest corner of the G. c. & s. F. R. R. survey;
THENCE s 76°13 1 37" E, 6552.97 feet alonq an existi.nq fence on
sai~ north line to an iron pipe found at a fence corner for the
northeast corner of this tract;
THENCE s 59°29'51" w, 2089.55 feet along the southeast fence line
of said 321 1/3 acre tract to an iron pin set at a fence corner
for the southeast corner of this tract1
THENCE N 29°57'15" w, 61.20 feet to an iron pin set for an anqle
point in the south line of this tract;
THENCE N 76°13·'37" W, 4625. 74 feet alon9 said south llne to a
point for a corner of this tract;
THENCE N 14°23 1 46 11 E, 364.42 feet to a point for an interior
corner of this tract;
THENCE N 75°36'14" w, 406.0Q feet to an iron pin found at a fence
corner for the most westerly southwest corner pf this traQt; ·
'.t'HENCE N 14°29'44" E, 1045.78 feet alo,nq an existing fence to the
·p~CE OF BEGINNING and containing 186.152 acres of land ·more or
less.
I hereby certify the above to be true and correct according to an
ac~l survey made on the gx-ound under my $Upervision this the
z4.!! day of October, 1.989 •.
29
~' ·,. ,' ~ .~·... ,
L ,,
:~ 53 8 •
~: : All tb~t. oert.clin tract. or 11arcol or· land oont:dnin; h .b6 cono ot iAe4 lJoin&
t4k"1\ out or 'bhG tlorth portion ot Trnct Ho. S, ·(cont.oJ.J:Wlg 1.26 aoroo) ot the
·
· J\uble lbncb Subd1Tio1on RocordCJd in Volwno 1 t Pago 78 1 n~t, ~tlol'Cla ot
,. ' Wiloon :oount,:r, T~xas ,- boing \hv 11:.mo lcind conTOJed to Bill Mcnornolda bJ" .
.. - . , '·· •• ll:t'10t"nt•C'f eontrl\ot. 1n Votr:inu L•nd Board and conir:Lot. ot Do.le .l"\tCOrd -
,:r:· .:~/ · in Vol\U1)') )liO, Pa.go h9ft dood rocordo a\ \fil.oon Oount1,, To~o a.p~ri. ot th•
. · X.~ TORSs .'SuoMl\'h lnrr1aon Sunoy No, 109i'"Abotr•ot 19(,, Md 'b.oins 1.10.ro· parU.o"'1.arlJ
:.;':~ • > dooodbad ~· follovej ·
·:':
"'·""--......-', BEt>DfN.INO A~ " 2 inch pi.po rovmd a\ t.hn Horthollat. comor of Dllid Tract. Ho. ~
DIUI\., b~ing,J;.bo-'Southo:io't. coru~r or tract. Ho. h ( con\ilJ.in:l:ng 1 )0 acrcus) loca.tod
on th., Ea.st, boundney·line or said SUaannah Larrioon Survey tor 1'ho Northeut
COM\ar ot thio tr~CtJ
THENCE S. 1) dog. Si "'5.n. W, 1 60.0 Coot tJ.ong .\ho Eut bQWldarJ lin.o ot ad.4
Sue:mn.t.h 14rr-iaon to & l/2 inoh iron p1n DOt.. tor \ho Southoaet oorMl' ot th1a
CRAMTEEt trnc:~J
tT#I SR..• TllE?:C~ N. 76 dog. 09 min.W • ,. .)241 .JO teot, to a 1/2 in~ iron p'-a. oet. !zl the ~
ETM Sr. cen'-'"'r lln., or a. )0 root J\o1ul En.nonient. loc:&t.od on t.ho. \lo:st. boun4al"J' l1ho
, or Hid Trac·t.Ho. s,
tor tbe ~u\,h"oet. r:omor ot thio 1,~aot.1
Til&HCE H. 1h deg. 0) min. Ea. 1 60.00 t'oo.t Al.ong contor lino or Brl1d )0 root,
Ro:ld 1:::1~.,IJinnt aamo boing t.h,.. 'tlaet. boumlo.rt lino or uid Tract No. S to a
2 fo~h pin round at tho Sou1,hvo:st. corn~r or o~id T.ract. Uo. li, and being ·
· Uort.hw,,s t.; co111~r o! Tr~o.tr No. S, tor the Nor\maoat co~.or ot tll:ia .~~actJ ' ·.
11lf'~C6 .s .•·
76 dog. 09 wd.n. ~.I 32ls1 .1Q. r~o.t .~oni ~h.e North boundAr.r 11-1\o
.• or c:,i-! Tract,· S, t.c? tho ~!AO& OF BF.OlNNlttO ~oontd.nin& 4.la6 ai:rel!I ot l.AndJ 4
••
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30 j.
• FDP,LP
•
l204 ZANDERSON AVE
• JOURDANTON, 1X TIJ028
FDP,LP
1204 ZANDCRSON AVE
JOURDANTON, TIC 78028
(
31
PAGE 84l10
NO. J.2.03-0101..CVW
.... ~
~
FDP, LP andLARRY.FRIBSENHABN
~
:$ -
r-:>
,.,, eM
~
c.t)
r- -.-,
<.'iF
§ IN THE DISTRICT ..'-o
-0 n.,,
§
§ ' o·
c...> cC
z:::O
vs. § 8111 JUDICIAL DIS >
:z
-1::0
~(Tl
§
--.. -to
• C'")
§ 0
~:;x;
ROBBRT MARX, DEBBIB MARX and § l>o
DlBGOLOPEZ § '° en
MBDIATBD SRITLBMRNT AliBBBMHNT
The parties hereto agree tbattbis lawsuit and all related claims· and contmverlies between
ibem ate hcteby settled in accontanoe with the following terms:
1. lhe·parties acknowledge that bona fide~ and ~es exist~
1hem, ad they ·dome io co~ ·and settle all .c1$JB and c;amea ·of action of.any· kind
whatsoever wliioh·1heparties:-bavo:aming out of ihe uansac11~n·or oceutreJlQa whidiis the
subj~oftbislitigatiob. ltis.tbrth¢~and.agreed1~au•.is·aconipromlscota.~.
; I. c1ailll, amlttothb).s,COutiined ~ sb81ib~ OoiiStl'Ded·as muWuismon ofliabllity.
2. DICb sigoatorywammts and mp:resents that:
a. such peisonhas antborltJto bind the~ or·parties for whom suchperson
ads.
b. the claims, suits, righ1s; and/or intele$ts:whicham 1ho subject mattedtereto
are ownedby.tb.~partyasserting same.~veuot becnasmgned, txaasfesred or
sold, and:Bn' i:ce Qf aJO"·encum~.
3. Thet>artieswill euctite andjilc an Agreed ~,dismissiQg all claims in the abovc-
styled and numbered case with prejudice- Each party will bear ·its own costs.
4. The parties agree as follows:
L Plainlifl's pmchasc421.more or less acres fromDefendants for SS,000.00per
acre. Closing per existing EMK - October lJ 2013.
b. Dofendauts retain his "homestead property" tor period of no longer than 8
yems after Closing.
c. Homestead Property will bo dctcDDined by the parties, based on home and
fenced areas Sltfficient to maintain existing horse/cattle operation, but not to
exceed 100 acres. Ifthe parties cannot agree on what constitutes Homestead
EXHIBIT
.3 1s2·
,p~ ·~5/10
.. ' No. 2306 P. 3/5
P!o.PCl'f.1, 1Jlo mediator 'Will act as arbitJ:atol' and.nuike the . . .~OIL
Dch.d•' use ofthe Homestead P.P>pert.y will. not umeasullllblr restrict
PJalndflit use oftho propmJbeJsigpmdmal.
cl PlaintiflB shall have tho exoll18iw option to pmdtase 1U Homestead
Ptopfl1¥, at the above stated price, iiJr a pedoct of t20 days fm.Dl tbo cadier
or.
(l) wr1ttoJl notice flom tht J'leimdant,
(ii) tba death ofthe 1-smvi"1ngI>efeQdant,
(iii) or the c:lpiratiua of8 .Yo8ES iam.closlna·
5. Bloept for1ho agrcaneutssctforthhemn.1hcpmtleshcrebyDlease, dilobmge, aml
fo.wvcrhpld1heotbet:hmri1~tom1n1aml.all.claba.s..~~s,or~bown
orunlmowa.Jixed or contip. ~.ot~ whether oruot.8$$1:rted in thetbow
caao, as oftllla c!ato._1ma11JJ'h .or ~.to :the eve.ms.a'.~ :WlliCb am'IU. au\U'1Ct
.-or~~ ~~xdeaselUDS ro.fhp:lxufitof'all~,.-,.~
ofticea, d1tecton. shareba1di:m, .p<nm, . _ assJaos.
•Uaphepm!eatativea -Of·1hc pmtla
ht.reJo.
6. Counselfor dk M1110 Shill de1lver drafts of~t\mho:dowm.e!ds·to be f-
~ illommeo1ioA wttllibij·i=temnUo coumelfi>r1ba ofa:padits.Jiarcto wl1bln 14 'f9
U.,S.ftomtha.datoherc0£ '111e.padie$ 1114'tbe.fr counsel ~1o ~=•eachodqdn1b.o
dtafthls and ·eecntion ofwQlu1c1&11oual ~ aa arc·msouebl.y requested: or required to
imp1emmtt the poYlai.cma ad splI1t ot·ihia Sculemont ~et, 11\lt~ .a
additional~~panteacou&un~thfsisa~dlraentspqmtasoontenJPJateAt
by Sectlon1S4.071 oftbeTcuas ~ PJaotic»1Ul41anedles Code.
7. tl\if S~Aatccmentismade-pedbmaahlain. Wibon.Coiloty, TexaB, ami
sball 1'e.eoufmi:4 m~-.ih the laws'of,jm, 8fafe ofTexas.
8. Ifoneormmedjepatcs·adse'Wlthiegardtotheintetpresta1ioaaad/orpedbmmnceof
thls~orayofitspr,avlskms.inolucDD&thebmofibrllu:r~:io·be~1he
~·aaiectotmtMrm~~:man~resolvesam.ewith'lhoJDaS·J.Smitb,1beMdator,
'Whr.m1itated th1s settJ1.111om.
9. Although ta mediator has pmvideid.abasic outllnc offhia:Sdanent Apsem.entto
1hepaltics'·~· a.comtesJtofacffitd.othomwresolutkm.oftblsdfsimlo,.~padiesandtheir
cwnselhm·thorougbly.nMewecl such outlfnOindhave, whemMC:OSsm)'. modifiiclit to confonn.
totbeftlluhementsolthelr-apeamant. Allslpetnrl•t01hisSett1==t.Agreem,eutheroayl\llcae
theMedimor:&mn..,,-..clilltespoDslbilityarisiogfromthomst\lqofthls·~Agrecmumt,
and''" si&QiDg ~ Settt-.fd Ap:cmeDt 8Qlcnowledp that they, tbeiJ' .attomeys, have hem
actvlM4bytbamediatotm'W!ltlngthatthisSettlememAgreemeutslaot44be-
Qf
by COUDSC1 bt8ore execndiug 1be Aaiecment.
183
PAGE 06/11.\
10. The~representand wammtthat: (i)theyhave carefullyreviewedthis Settlement
Agreement;(n) they have CC)nsulted with their attorneys concmingthis Settlem.ent.Ap:ement; (ili)
any questio~s tbatthey·havc.pertabUng to this Se#lement Agreement have been answered.and folly
explained by1beir auomeys;(iv) th.oiniecision to executo this SettlementA.greemcntW8$not.based
on any statement or repxesen.tation, .either wiitten or oral, made by 81J1· person or entity other 1han
those statemmts conuPn.ed in tbi$ Settlement Agreement, and specifically was not based on ·any
statementorrepresentathmmado by81J3opposingpartyorits counsel; (v)tbis Settlement~
constitutes the entire.agreemem and undel'Standing between the parties; (vi) ihey have.entered into
this Settlement. ~ of their own free will; and (vii) .all prior and contempotaneous
agreements. ·understandings, representations and statements, whether written or oral, are merged
herein.
Agreed, this 21'11 day of A:Qgust, 2013.
DEFENDA.l\ITS:
Robert Marx
DebbicMmx
(
184
PASE :87110
, .' No. 2306 P. ·415
10. 'lhcpattiesmpiead81ld~(i)theybvecazefbllym1ewedthl9SeUJement
Alteement;(ii)tbo1.Juwo~·witb.tbdrettomcyseoJJceminsthisSetflem=t~(iii)
ayquatious1blt1he1bave~to tiaSettlemelltApementbavebeeo.ansWlleClandfiiUy
oxplakied.by1he&attomeys; (iv)1heirdecislcm.toaecamtiaSd:tlemmtAlreemellt.wasDOtNsed
on• statoocm orJtpese11lation, .eltber wdttm ~.ont, madoby 8111 pmon.arentlty other1baa
those abllonwh comaJnad:ittbis SettlemeDt Asrecmeot,. and apecilically W$$ llOt bacd. muuy
staralJllltorrepresentatiomne.M'br.aDJ~orit&counsel;.(v)tldsSettlemem~
CODi.1ltutea 1bt entbasreemezitachmdiafamUng~tl=parties; .(~} tbef bavo eut.erea into
fbis Settlcmcat ~ of their ovm flieO Will; an.4 ('Vli) aU pior .am\ ccmtempmauous
agremntml$. undatandhtp.tlpIIBeDtBtions.d.~.whether written ot·o-.1, .me.~
hetetn.
Aslte4, this 21"'· day 6fAuault, 2013.
PDP,L'P
Name:_.____________________
By:~--------------------
~----------------------
DDDmANTSs
RJ* %.w.J •l2rb
t-9
t-Jo
~
185
PAGE 88/10
APPROVED AS TO FORM:
LAW OFFICBS OF OILBBR.':f T. ADAMS
1855 C&lder Ave. at third Street
P~ 0. Drawer 3688
Beaumont, Teos ·17704-3688
(409) 835-3000
(409 .32-6i62 .ax)
.Adams.«m
(IJtl~M't T
State Bar )'To. 00790201
ATl'ORNEYS'PORPLAlNTIFFS
TIIBLAWOFFICB·OF.OILBER.TVARA,JR.
T.=Ariel House
8118. patapo~.DJive
San Antonio,. Texas7~229-3218
(210) ~14-6400
(210) 61~01. (Fax)
By;.._____________________ ~
Gilbert Vata, Jr.
State Bar No. 20496250
ATTORNEYS FOR DEFENDANTS
186
APPB.OY.EJ> AS TO JORMl
LAW OFPlCPB OP GILBBRTT.. ADAMS
llSS ·~Ave.at tbid·Stteet
P. O~Dn.wer3G88
Bea\mtont. Texas 'n7G+o3688
(409) US.3000
(409) .832-6162 (Pmc)
'B1:.----------------------
Gt1bcrt T; Adama,·m
State Bar No. 00790201
ATl'ORNBYS POll PLA1NI1PPS
'llmLAWOmCE OP GJLBBJ.TVABA, m..
The&ielllause
8118 l>mapoJntDtive
Sm~ T8)liS 78229-3218
(210)6146100
(210) 61+6401 (Pax)
~~~·
State BarNo. 20496250
A'lTOBNBYSFOllDBP.BND.ANTS
(
187
I{
•. ·.·!!
CAUSE N0.12-03-0101-CVW
)
'FDP, LP and LARRY FRIESENHAHN § IN THE DISTRICT COURT OF
§
. vs. § · WILSON COUNTY, TEXAS
§
R~BERT MARX, DEBBIE~' ET AL § 81ST JUDICIAL.DISTRICT.
ORDER GRANTING PLAINIIEFS' MOTION AND APPLICAIION TO
I
CONFIRM ARBITRATION AWARD and CONFIRMAIION OF ARBITRATION AWARD
On this day, came on to be heard Plaintiffs' Motion and Application to Confirm Arbitration
Award. The Court having read the Motion, including the opinion of Tommy Smith, the Arbitrator
with attached Exhibits and other evidence attached thereto and any response made or filed by
the Defendants, is of the opinion that said Motion: and Application is in all things meritorious and
should be granted.
The Court finds that the parties did arbitrate Paragraph 4.c. of the Mediated Settlement
Agreement dated August.27, 2013 as agreed by the parties and Ordered bythis Court on or about
November 14, 2013. It is therefore
ORDERED, ADJUDGED and DECREED that Plaintiffs Motion and Application to Confirm
Arbitration Award attached hereto as Exhibit A is hereby GRANTED and this Court hereby
Accepts and Confirms the metes and bounds legal descriptions attached thereto, including
Exhibit 2 to Exhibit A that legally and accurately describes the metes and bounds description of
the "Homestead Property" as that term is used and referenced in the Mediated Settlement
Agreement of August 27, 2013 which describes ~e one-hundred acr~ tract which Plaintiffs shall .
have the exclusive option to purchase from Defendants or their legal beneficiaries based ·on the
terms described in Paragraph 4.d. of the Mediated Settlement Agreement of Augus~. 2,7, 2013.
It is furth~r ORDERED, ADJUDGED and DECREED that Defendants, ROBERT MARX and
DEBBIE MARX, are jointly and severally liable for the costs of the Arbitrator's fee in the amount
EXHIBIT
185/51 /;0,g(p
1
I •r 353
of $1,800.00 - the amount of the invoice submitted by the Arbitrator - which this Court finds to
)
be a reasonable and necessary fee, and are ordered to remit payment to the Arbitrator within
twenty (20) days from the date of this Order;
It is further ORDERED, ADJUDGED and DECREED that Defendants, ROBERr ~RX and
DEBBIE MARX, are jointly and severally liable for the costs of the surveyor's fee in the amount of
$11,539.43 -the amount of the invoice submitted by the surveyor -which this Co~rt finds to be a
reasonable and necessary fee and cost of arbitration, and a.re ordered to remit payment to the
Plaintiffs within twenty (20) days from the date of this Order;
It is further ORDERED, ADJUDGED and DECREED that Defendants, ROBERT MARX and
DEBBIE MARX, are jointly and severally liable to· Plaintiffs for Plaintiffs' attorneys fees' in the
amount of $17,202.50 and expenses in the amount of $486.00 which the Court finds to be
reasonable and necessary expenses associated with the time and expenses necessarily expended
in connection with the conduct of the arbitration and are ordered to remit payment to Plaintiffs
within twenty (20) days from the date of this·Order. The Court finds that $350.00 per hour is a
reasonable attorneys' fees rate for the areas in which the attorney services were provided for
those services provided. The Court further finds that it was reasonable and necessary for
Plaintiffs attorney to expend 49.15 hours associated with the arbitration,. induding the in-
person meeting, multiple conferences, working with the surveyor at the arbitrator's direc.tion
and presenting of this Motion.
It is further ORDER~D, ADJUDGED and DECREED that the Award of the agreed upon
Arbitrator is confirmed and accepted in full by this Cou
SIGNED on this the~ayofMay, 2014.
Flied i ·.,.__ Day of ~A ,;. ?-0 t L(
Deborah
7~.SMA
e
2
354
LAW OFFIC!B OF
THOMAS J. SMITH
) 112 B. PBCAN. SUITB 3050
SAN ANTONIO, TEXAS 7R205-1Sl2
BMAIL: smjth@tlsmtthlaw.oom
WBBSITB: www.tismithlaw.c;om
TBLEPHONB (210) 227-7S6S TBLBCOPIER.{210) 227-864$
April 14, ·2014
VIA EMAIL
Mr. Gilbert T. Adams~ ill .
Law Offices of Gilbert T. Adams
1855 Calder Ave. at Third Street
P.O. Drawer 8688
Beaumont. Texas 77704-3688
Mr. Kirk Dockery
Law Offices of Donaho & Dockery, P.C.
P.O. Box459
Floresville, Texas 78114
. Re: Cause No. 12-08-0101-CVW; FDP, LP and Lany Friesenhahn ("Buyer") vs.
Robert Marx and Debbie Marx ("Seller")
Dear Gilbert and Kirk:
This letter will constitute the ruling by the Arbitrator, pursuant to Paragraph 4.c. of the
Mediated SettlementAgreement, datedAugust27, 2013. This ruling is limited to a determination of
the exact location of the 100 acre tract being retained by the Seller.
The Arbitrator has considered the submissions of counsel for both Buyer and Seller and
makes ilte following~:
1. TI1e 100 acre tract retained by Seller· is shown on Exhibit "l,s' attached hereto, and
more particularly described by metes and bounds in Exhibit "2" attached hereto.
2. The property being sold by Seller to the Buyer, shall consist of417 .335 acres as shown
on Exlnl>it "1" and more parti.cularly des~ed by metes and bounds o~ Exlnl>it "3."
3. All othertenns and conditions in the MediatedSettlement.Agreementshallremain the
same, excepting only that the earnest money contract closing date shall be at the
earliest possxble date. ·
PLAINTIFF'S
~BIT
) April 14, 2014
Page2
4. Costs of this arbitration. including the Arbitrator's fee, shall be charged to Seller. A:
statement is-enclosed.
Gentlemen, I urge that you get this matter closed as soon as possible, The parties ha"e been
in a state of "limbd' for long enough.
Very truly yours,
ThoillaS J. Smith
C:\t>ATA\T.JS\1.2800.1879\A'm'l.2 LTB.WE'D
Enclosures
)
356
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) lOOo Cwtlral P'Nkw~y N.. Suite lQO TEL 2104~4 5511
SiUJ Antonlltt.T~~ 782J2·,050 FA~ 2·i6494 ·5519
AumH DALLAS
-uoumm BRENHAM
SJUI ANl07UD RO$~flBiRG
METES AND .BOUNDS
COLt.EllE ST~Tll»J Tff£W001>!!&~.~
DESCRIPTION OF A
100.00P .ACRE T.RACT OF LAND
A..Meteaand ·sounds description· af'a 1CG.OOO·aere :C~urface: area - Grid Area: 99.~~ ·aeresj tract otland
situated lh'the Benjamin White· SUrvey, AbStraGt No.431 and the J.N. SlOJ.'le SuJVey, Abstract No.&1'fi! .in
WUson·CounlY., Texas; -COAtalning a p.6rtion·of ~ets 1·and 2 described ln fAsb'Utnent ~ l\!.f'nr,:;(?laqa_ ~k
MarJt Sr•. reoorded ii \loJtime A20, Page 209 of the Wilson County Lleed Recof.Cls~ ~ini!l9·& po.rtfon of
that oedaln G.OOO·acre traet·.d~cribed:in instrumenf·.to:Rober.t R. Marx ree.orded In V.Oll.rme.613, Page 199
of the. WllSon County Offtclel PUblfc:R·ecords; containing a porUon Of- that Gertaln 3:26.047 acre tract
described In Instrument to Robert R. Ma~ recer-dad fr..V.olume. 732, Pag& 317 of the Wilsen ec;>Lmly
Oftfclaf .Public Record~! arid 0erng ·more particularly described as . fonows:
COMMENCING ai a 2.1nc:h Iron .Pl.Pe :tottnd mar.king the. nQrthern"fflost comer of ~id ·32e.047 .acre trac~
and mafldnf) 1h.e western.most oomer:.of that certaJn $.O S?re tract dessri.b.~d Ip in~tr.ument·te Raymond L.
Budge recorded m. v.orume -7-85,· Page 711 of the Wilson Cbuoty· Officfal PubJfc .~eCQm; Jtnd markJng tlie
eastern-most eon:imon oomer:of"f.racts 4 and'.5 of Rubfe.Ranch SubdlVfslon. plat.cf w.hlth fs·r.eco~ed In
Voltilne i., ·Pase :re.of the ~County. Plat Records;. and marking t.h~ nertheastern-cq.~ comer. pf
Marx Lan& {60•fetehvlde p~te lane~ Votume.521; Page 5S7 of .the Wllson·~ounty Dee~ R~rds):
T-HENCl51 along the ~astetlV end ofsaitfMam.Laoe tcliGtthe followjr)g:tWo(2):Qdur:ses and (Jistances:
1. south 1.6°17'19° ~est, -~0:~9~ feet to. a 1-lnah. lto.n PIP~ foun~ marking lhe northwe~em-most
common cornarof the a~lti .5.00Q aore·and.32$.°'l7 acre tracts:
2. South 14Q1·6~9u We.st. 2,9.9.7 feet to.a:1/2-inch iron rg~ found· marking the southeast comer of
said Mar.x.'L~t)e ~ct and ~e ~JNT' OF QEGINNIN<3 of th~· her.efn described bet of land;
THt='NC.~.. ~olltb 15°59140 Eastr along tlie eastedy .extension of the· GQUlherty ooundary of said Matx
11
Lpn~ trac;t; ~ ~Q teet pa.S.\tjng· the common boundary ot·ltie aforesaid. 5.o.oo aere and 326.04Tacre tract$\
P.~tinulng for a·totat dlstaoce of 60~0Q.-feet to a point for-corner. ·
THENCE, South 07°45'11" East. 4202.24 feet to a point :for corner;
THENCE, alo'fla an ·alignment running 10 feet from1 and parallel with, the boundafY of the Cilfo"m~tfpned
326;047 aore tract)· the following foui:(4) oour-ses and dlsfanGes:
·1. Soul~ 58d33!42" West, 2-205~2 feet to a point.for comer.
2. North 14°11'501\ East, 1~~-3·3 feet to an angf.e pofr1t
3. .North t3°57'4fi'l E.pst, 1.8.04..95 feet to an an~fe point;
4.. Norti1140.10•03" East, 1457.79feetfo a pplntfOrcomer.
JKS ~fn~rloo- Prop~d Marx ~~ind~rT.ra~ W - ·100.000 acres
Job No. 80762·008-00 .. Jslll.laty.9; 20-14.. P.age 1'.of 2
Smart E.ngtneorlnu.Smart $nhttlvtJ5.m .www;Jo11es.~tter>cllm
358
).
. .
THENCE:, ~sf.ttt .7.69d9'5711 West, 10.00 feet.to a point tor corner situated.la the-westerJy baundary of-the
aroresaid 326.0:4 7. acre tract and ·easterly boundary of Tract 6 of-aforementioned Ruble Ranch
Subdivision;
THENCE1 along tJ1e easterly boundmy of Tracts e and ·5 of said Ruble RaftCh StibdMsion th.~ foRow1,,9
two(2) courses.and distances: ·
1. Norih 14°19''03° East, 186.83 fest·algng·the tt~stEJrfy boundary of thatcertafn 16.:979·a9re '1"ra~
to
Two" des~il$d In lnsirurn{!rii ~~nee frfe~h~hnJ -~tux. reoorded io y.9J1:1me 1623, .P.~
300 of lf\e Wilson C~urtty::Offf0
and·aTong U,e ~i.lSlerly boundery of 15.893-acte-•f'ftact a11 ·and 11.1~~ ~e "Trapt·1"'tt~erff;>t::ld'·ln
Instrument .to Ooug~ D~ Wat~n; et wet re.cQrdetJ f11 VOr!Jme 167Z ~ge-286 of the Wilson
County Qfflala1 Pubtfc R~otds~·to the POlt-lT OF BEGINNING, containing 100.0BP acres of land
Jn Wiison. Cpunty, Texae as shown-on drawing fllet.f under-Job No: so752~ooa ..oo In the. ofiice of
Jones & Carter. Inc., Si;mAntonlo. Texas. · ·
Note: Alf bearings an~ .distance.~ refe._en~·.hereJn are Texas Stat& ~Jane C.001'4l~Je ,System grid,
South C.~al Zone fNA9'8~)~s estabffsh® (>}' .GJ.qb.al P:e>!iltfonlng Systam-.~GPS). The grid tQ.
surij\ce &Clale ~otor Is: 1.eoo1e1.
JONES'& CARTER, INC..
WA:12---~s
Michael A RemaRs
.Regfsteied Po!>fe8'1onal land StRVeyor #4657
Sfgnature Date: J.... "I .. ~at j
JKS Erigkle~ln!;f- Proposed Ma~ Rt!l'.nl:!iritterTra~ •p;.· -.100.:QDO acrss
Jab No. SQ7-5-2.-0D8.:00·· January .e.. 2014 • Page 2: of 2
359
).
AUSTIU DALLAS
ROUS~ BRENffAU
M~ES AND f30UNDS ·SARAflTONIO ROSEtlBEftG
OE$¢RIPTIQN 'Qf. 'A Cot.LEGE STATIOt~ TICE \~Dl.All(>S
417.aGo AC~E fAACi OF LAND
1\'Metes ~ BQ~3--deswiptto.n pf a:f4.17.~S5·~~·(Sq~~~·\a-·~ciA,rea: 4171201 a~rf!s) ·\raqt-ofia·r;ui
sJiualea .fn the G.O. &.S:F.RR Survey. SSOtlon..S,.Abstraet·No.44a. the·tl~Jamin Willie S'!wey•. Abstract.
No~431; and Ute J.N. Slone sufv&f, ~.a~t No;r16i hi .W~ c~untY, Te}(S$; contaioina a Parflan o.f T.rac1s· 1,
2 and 3 de.scti~ ln·tn*IP.Jment to Mr-s. GIFtra JakSlk:Manc. Sr~ .recorded in VOiume 420. Page 209. Qf m.e Wlf6on·
County· Det;?d ~.~90J:d.~; cpti~inlng a smai1,poriJon e>,f tttat certain 5.000-ac~ tr~GI l,lesc~lb¢. In ftJstumeht. to.
Robert R. Marx recorded ~~ Volu~e 67-$, PaQe. 7.99·otth.'i' Wilson QOuntS' Offi~~I PubJIC Records; ~onlalnfrtg a
portion of that celtaln 326.047 acre tr.act described In inslrt1ment to-Robert R. Marx: reoorded'in Volu~ 1~.
Page 377 of the.wnson Count.}' Offfcfal P(lbllc Recottls: ~c:I belag·more.~ttfculady descillred ~s follows:
BE.GINNING at a UJJdrlr.~ pip& round marking thenOlthern:-most-.t=otn$' of eakl.326.0:47. acre traet1- and
markllt{i."1e ~stem~~QJn cor.•·of1hal ~~tn:iM1 ~ ~Qt.d•~ '" instiumentlo f,laympnd L Bllelge
of tfte WllsQn·C!Jt'.l)lY. OJflclaf ~l~Rti~rdsrarJ~ m~i!l9. lb~ o.~s.leU'·moat
'ffslCOr~ed irf ~hltr.KI 7Jlti, ·P.age 711
corrunbn·con1er ofT-r.act8:4 and.() of RL:lble Ranch Subrfivlston,_.plaf of which Is recGrdud: In YG?lt:inre:1, Page ·79
of the WHsan County P.lat Recdrds~.tmd maiklng_ lhe·nartheastemrmost=oorner of Marx1.ane (60•feetwlae
prh.rate 1ane, '.(olum8:521, Piiat;t·~'f. ~f·th,e Wll~ti c~untyt>~ Re~);· safd e.s.a:tNNtNG·potnt;havJng
T~ Si&te. Plane:Grld'CQb.l'(Onates: .
North 1~65f.2.49..09·feet. East2;2S3,408.68 fe~t;
THENCE. along the 'bG\lfldary of eald G;O.~cre .t~et tf\e fpB~pfJ tw~(2) C9urse.s and dla~~
1. Soufh 1.5°291381' Ea~t. M&J'~ feet~P ~ 112t=l9~ch;f~ rocl'foond·f~r ~rn~
2. NCJrth.14°'.~2i1 ~ Ea~i) 104S.67 re.P.HQ a 1/2•1nch fro~ ~~·~und f9r .cgr:ner·m the·,9µ~fllMlsterJy
boum:!aiy m·Let 88 of SoS'eWCiod .Stlbdlvislon, .lfnll 21 platef·whl~ is temr'ded fn Votum~9. Page 22 of
·tlle"Wd'son County ~lat· Reco'rc{s;
THENCE, Stnith 7'6~1193611 East, 6551.79·feet along tlle..SOUthweatetly boundat_y of sakf·R~sewbocl
SUbdivis1on.. Unlf 2 ~net Ro~ewo~ Subdlvtslon. U~lt 3 {Uol\lfll9 9, Page 60, ·Wlfson ·eountv. l?I~ ~ds), and
Rosew~od.~Ub.dMs'ion, ~nf~:8.(Votume-9, FiaDQ 7P, WftsQn Ootmf1, P.f~t'~prtl~ to~.:1.-fnch·Jron:pJpe foun4
marldng the. n'111ham·m'Ost comer-Gf that. certain 632'.072 acre traet descrlbed·in Instrument.lo Yates.Semmes
land end. Catlle Co. raeomed in Volume 1.10, Page 672.of-the·Wllsen·County OfflclaJ Pubtia:ReeoT.dSi
THENCE, .South\69~2'02" west;:along lhG northwastetty:qe.unctary 01 $ald:632.on acre tram~ at 2089•.30 feat
p.a~l119 ~ ~~·liJtti:~QJJ..r~ (~tt·~ the ea~in:~st·~rner .pf th"•~for~entron~ ~a~7 a~ tta~~
contt.n6ln1;f4J1 a to~ d!Stande Of '(i~ !~trte.o.t tQ '8. 1-tn9h. lt~JJ: (Mle. to:und ~tyg".lhe W•fe.m·m.0$t40.mf;!f" of
•l~·~2,o~ a~. tra!?f.arlQ noliJbefn·m~ .cor~ of.th.e ~~r:of thatce~ ooo,oo.a Ssed Mal'}C· 9ut tract ag• :.._ 4tl,3~5 arNe&
Job ~"· 80762·008-:00- Jtinyary 23, 20.14 ~ P~e 2 of.3
361
)
THENce., Nmrth 16°17'19P E~t, ao;05 feet..elona the·~S\efiyencl of.ellid Marx· Lane tract te the Pciltfr OF
BEGINNJ.N~, ·cootalnlr.sg 417.,33,5:acres of jand. In ·Wilson County, T.exas as.shown on·drawlng filed under Job
Nol ·so752-GO~OO In th& offlce-1>f Jones lie Gart~r. J~•• ~arr~tqntot "fexas-.
f'Jote: All ~earfnga an4 _di$lance8 re~d herein are :r~s .State .P.iane Coflrdinate.·System.grfd! S.outh
-Central Zone. (NAD!~3) as estabHanett t>y Glob:al P6sition\ng SY.stem (GPS). The grid to:sLJttace seiife
factor i~ l.-000181. ·
.J.ONe'.S & CAArt;~ INC2
vtti:JAJL.~
Mic;hael A. R9m~
Re_glster.ed P.rof. .tonaJ. Land Sutve:yQr tl46.57."
srgna~W'S· Datei. l-. 2-3 .. 7,IJ I±
aa
JKS EntJloeertng~. Pr9pc;tse~ Mane Oyj"Tra9J -417,335 .aaes
0
J.ob No. 80752..00B-'GD-:- Januacy 23, 2014 • Page·S: of 3
362
Law Offices of Thomas J. Smith
112 East Pecan Street, Suite 3050
) . Telephone (210) 227N756S San Antonio, TX 78205· 1512 Fax (210) 227-8645
Tax ID XX-XXXXXXX
April 14, 2014
Invoice submitted to:
:Mr. Gilbert T. Adams, m
Law Offices of Gilbert T. Adams
1855 C81.de1 Ave. at Third Street
Beaumont, TX 77704
Mr. Kirk Dockery
Law Offices of Donaho & Dockery, P.C.
P.O. Box459
.Floresville, Texas 78114
For arbitration services rendered in connection with the arbitration of FDP, LP and UL.~
Friesenhahn vs. Robert Marx and Debbie Marx; File No. 12300.1879
Professional Services
) Hrs/Rate Amount
4/14/2014 All fees incmred by Arbitrator since January 16, 2014, including: 6.00 1,800.00
Various COilll'.Jlunications with counsel, correspondence and emails 300.00/hr
with counsel and review of submissions and prior documents.
For professional services rendered 6.00 $1,800.00
Balance due $1,800.00
363