Michael Glenn Mott v. Willie Edward Kellar A/K/A W. E. Kellar Joseph G. Tuck, Individually And Tuck & Kizer, PLLC, a Professional Limited Liability Company
03-14-00291-CV
| Tex. App. | Jun 26, 2015Background
- Mott purchased real property from Kellar under a contract for deed; Kellar allegedly refused to deliver a general warranty deed after payment.
- Mott alleges Kellar and attorney Joseph G. Tuck conspired to convert title to themselves and foreclosed/sold the property improperly.
- Mott sued seeking injunctive relief and a constructive trust; defendants moved for summary judgment.
- Mott contends the defendants’ summary-judgment proof was incomplete, included documents not presented to the trial court, and omitted later payments to Kellar.
- Mott moved to disqualify Tuck (and his firm) after discovering Tuck’s alleged personal involvement; the trial court did not set a hearing on disqualification and later granted summary judgment following private off-the-record communications, according to Mott.
- Mott asserts the foreclosure did not comply with Tex. Prop. Code § 5.066, the trustee’s sale implicates Tuck as trustee, and the trial court improperly amended the judgment to award attorney’s fees without notice, violating due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was properly granted | Mott: material fact disputes exist (payment/default), defendants’ MSJ lacked sworn affidavits and omitted later receipts | Defendants: (as described by appellant) argued Mott defaulted and supported MSJ with payment records | Mott asks court to vacate MSJ and remand (appellant contends trial court erred) |
| Whether Mott was denied due process | Mott: court ignored motion to disqualify counsel, held off-the-record private communications with Tuck, and amended judgment for fees without notice | Defendants: contend errors not preserved / that hearing/notice were adequate (per appellant brief) | Mott asks for reversal based on deprivation of meaningful notice/hearing |
| Whether foreclosure/sale complied with Tex. Prop. Code § 5.066 | Mott: foreclosure/sale was defective; trustee designation (Tuck) and missing compliance documents undermine validity | Defendants: rely on trustee’s deed and asserted foreclosure sale (per appellant characterization) | Mott asks court to set aside sale and reject MSJ grounded on that sale |
| Whether summary judgment for Tuck & Tuck & Kizer PLLC was authorized | Mott: MSJ did not seek relief against Tuck individually or his firm; trial court had no basis to grant judgment for unmovants | Defendants: (implicit) treat Tuck/firm as properly before court | Mott requests vacatur of judgment as to those parties |
Key Cases Cited
- Armstrong v. Manzo, 380 U.S. 545 (due process requires meaningful time and manner for hearing)
- Fuentes v. Shevin, 407 U.S. 67 (procedural due process protection before deprivation of property)
- Nelson v. Adams, 529 U.S. 460 (amendment imposing sanctions or fees may implicate due process)
- Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (contextual discussion of due process in governmental action)