Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/1/2015 10:19:09 AM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00074-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 10/1/2015 10:19:09 AM KEITH HOTTLE CLERK NO. 04-15-00074-CV In the Court of Appeals for the Fourth District of Texas STACEY SCOTT,
Appellant, vs.
LARRY FURROW AND KELLER WILLIAMS LEGACY GROUP,
Appellees. From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 13-1125-CV-A Honorable W.C. Kirkendall, Judge Presiding ______________________ BRIEF OF APPELLANT Frederick D. Junkin State Bar No. 11058030 fredjunkin@andrewskurth.com Andrews Kurth LLP 600 Travis Street, Suite 4200 Houston, Texas 77002 (713) 220-4200 (713) 238-7387 (Facsimile) ATTORNEY FOR APPELLANT STACEY SCOTT September 30, 2015 ORAL ARGUMENT REQUESTED
L IST OF P ARTIES AND C OUNSEL Appellant Stacey Scott submits the following list of the parties to the trial
court's Final Judgment and their counsel.
Plaintiff / Appellant:
Stacey Scott
Appellate Counsel: 1
Frederick D. Junkin
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
Defendants / Appellees:
Larry Furrow
Keller Williams Legacy Group
Counsel:
Scott F. Cline
Vaughan E. Waters
Thornton, Biechlin, Segrato,
Reynolds & Guerra, L.C.
100 N.E. Loop 410, Suite 500
San Antonio, Texas 78216-4741
1 Ms. Scott appeared pro se in the trial court. ii
T ABLE OF C ONTENTS Page L IST OF P ARTIES AND C OUNSEL ................................................................................. ii
T ABLE OF C ONTENTS ................................................................................................ iii
R EFERENCES TO THE R ECORD ..................................................................................... v
I NDEX OF A UTHORITIES ............................................................................................. vi
S TATEMENT OF THE C ASE ........................................................................................... 1
I SSUES P RESENTED ...................................................................................................... 2
S TATEMENT OF F ACTS ................................................................................................. 3
S UMMARY OF THE A RGUMENT .................................................................................... 8
A RGUMENT AND A UTHORITIES ................................................................................... 9
I. Standard of review. .......................................................................................... 9
II. The trial court erred in granting the Claims Motion. ....................................10
A. The existence of public records reflecting the state of the
title to the waterfront lot does not foreclose application of the discovery rule to Ms. Scott's claims. .............................................12 1. The analysis in the trial court's letter ruling is contrary to well-settled precedent. ..........................................................12 2. The authorities cited in the trial court's letter ruling did not support the entry of summary judgment. ......................15 B. The remaining grounds asserted in the Claims Motion
provide no foundation for affirming the Final Judgment. ...................16 1. Defendants' reference to Ms. Scott's deposition
testimony does not support their limitations defense. ..............17 iii
2. Defendants' reference to Ms. Scott's e-mail to the sellers' counsel does not support their limitations defense.......................................................................................19 3. Defendants' reference to Ms. Scott's deposition testimony does not establish an absence of disputed issues of material fact regarding her claims..............................21 4. Defendants' unsupported argument regarding conspiracy and fraud by non-disclosure claims provides no basis for affirmance. ..............................................22 III. The trial court erred in granting the Fees Motion. ........................................23
A. The Defendants were not entitled to pursue an award of
attorney's fees under the New Home Contract. ...................................24 1. The Defendants were not parties to the agreement. ..................24
2. The Defendants were not third-party beneficiaries of the agreement. ...........................................................................25 B. The Final Judgment contains no findings supporting an
award of fees under Section 17.50(c) of the Business and Commerce Code. .................................................................................27 C ONCLUSION AND P RAYER .......................................................................................28
C ERTIFICATE OF S ERVICE ..........................................................................................30
C ERTIFICATE OF C OMPLIANCE ..................................................................................30
Appendices
1. Final Judgment
2. Order Granting Claims Motion
3. Property Listing for 1104 Peggy Lane
4. New Home Contract for 1104 Peggy Lane iv
R EFERENCES TO THE R ECORD Reference Record Cited
CR Clerk's Record filed on March 12, 2015
SCR-I Supplemental Clerk's Record filed on March 24, 2015
SCR-II Supplemental Clerk's Record filed on April 29, 2015
2SCR-I Second Supplemental Clerk's Record (Vol. 1 of 3) filed on
September 21, 2015
2SCR-II Second Supplemental Clerk's Record (Vol. 2 of 3) filed on
September 21, 2015
2SCR-III Second Supplemental Clerk's Record (Vol. 3 of 3) filed on
September 21, 2015 v
I NDEX OF A UTHORITIES Page(s) Cases
Booker v. Real Homes, Inc. ,
103 S.W.3d 487 (Tex. App.–San Antonio 2003, pet. denied) ............................ 10
City of Keller v. Wilson ,
168 S.W.3d 802 (Tex. 2005) .............................................................................. 10
ECC Parkway Joint Venture v. Baldwin ,
765 S.W.2d 504 (Tex. App.–Dallas 1989, writ denied) ..................................... 14
Exxon Mobil Chemical Co. v. Ford ,
187 S.W.3d 154 (Tex. App.–Beaumont 2006), aff'd in part, rev'd
in part , 235 S.W.3d 615 (Tex. 2007) .................................................................. 15
Johnson v. Prudential Relocation Management Ltd. P'ship ,
918 S.W.2d 68 (Tex. App.–Eastland 1996, writ denied) ................................... 14
Jones v. Smith ,
649 S.W.2d 29 (Tex. 1983)................................................................................. 28
Lesieur v. Fryar ,
325 S.W.3d 242 (Tex. App.–San Antonio 2010, pet. denied) ...... 9, 24, 25, 26, 27
Lightfoot v. Weissgarber ,
763 S.W.2d 624 (Tex. App.–San Antonio 1989, writ denied) ........................... 14
Marker v. Garcia ,
185 S.W.3d 21 (Tex. App.–San Antonio 2005, no pet.) .................................... 28
Ojeda de Toca v. Wise ,
748 S.W.2d 449 (Tex. 1988) ........................................................ 8, 12, 13, 14, 16
Provident Life & Accident Ins. Co. v. Knott ,
128 S.W.3d 211 (Tex. 2003) .............................................................................. 10
Randall's Food Markets, Inc. v. Johnson ,
891 S.W.2d 640 (Tex. 1995) .............................................................................. 23
Rhône–Poulenc, Inc. v. Steel ,
997 S.W.2d 217 (Tex. 1999) .............................................................................. 10 vi
Ryland Group, Inc. v. Hood ,
924 S.W.2d 120 (Tex. 1996) .............................................................................. 10
Salinas v. Gary Pools, Inc. ,
31 S.W.3d 333 (Tex. App.–San Antonio 2000, no pet.) .................................... 14
Sudan v. Sudan ,
199 S.W.3d 291 (Tex. 2006) ................................................................................ 9
Swanson v. Stouffer & Associates, LLP ,
No. 03-12-00071-CV, 2014 WL 2522145 (Tex. App.–Austin May
30, 2014, no pet.) .......................................................................................... 15, 16
Tawes v. Barnes ,
340 S.W.3d 419 (Tex. 2011) ........................................................................ 25, 26
Valence Operating Co. v. Dorsett ,
164 S.W.3d 656 (Tex. 2005) ................................................................................ 9
Statutes
Tex. Bus. & Com. Code Ann. § 17.50(c) (West 2011) .......................................... 27
Rules
Tex. R. Civ. P. 166a(c) ............................................................................................ 10 vii
S TATEMENT OF THE C ASE Stacey Scott sued Keller Williams Legacy Group, Larry Nature of Furrow, and other parties asserting, among other causes of
the Case:
action, DTPA, fraud, and negligent misrepresentation claims based on pre-purchase representations made to her regarding the waterfront character of a house and associated land in Seguin, Texas. (2SCR-I 14-165.) Trial Court The case was assigned to the 25th Judicial District Court of
Proceedings: Guadalupe County. The Honorable W.C. Kirkendall is the
presiding judge of that court.
Keller Williams and Furrow filed traditional and no-evidence motions for summary judgment seeking a take-nothing judgment as to each of Ms. Scott's claims. (2SCR-I 177-222.) In a letter ruling, Judge Kirkendall denied the no-evidence motion but granted the traditional motion on the basis of one of the five grounds asserted in the motion — that the discovery rule did not apply to Ms. Scott's claims because the information needed to discover those claims was available in the Guadalupe County real property records when she purchased the property at issue. (CR 536-37.) These rulings were memorialized in an Order that also severed the claims against Keller Williams and Furrow into a separate cause. (CR 534-37.)
Keller Williams and Furrow then filed a second motion for summary judgment seeking recovery on their counterclaim for attorney's fees. (SCR-II 8-37.) Judge Kirkendall entered a Final Judgment that Trial Court
(i) incorporated his interlocutory Order on the initial summary
Disposition:
judgment motion, (ii) ordered that Ms. Scott take nothing on her claims, and (iii) awarded Keller Williams and Furrow $70,179 in attorney's fees through judgment and conditional fees in the event of an appeal. (SCR-II 38-40.) *9 I SSUES P RESENTED
Issue 1
The trial court ruled that Ms. Scott's DTPA, fraud, and negligent
misrepresentation claims were barred by limitations based on its conclusion
that documents on file in the public records placed her on notice of the
"precise nature of her title." However, controlling precedents establish that
the existence of such records does not foreclose application of the discovery
rule with respect to the types of claims asserted in this proceeding. Did the
trial court thus err in holding the discovery rule did not apply and granting
summary judgment on the Defendants' limitations defense?
Issue 2
The trial court's letter ruling reflects that the decision to grant the
Defendants' traditional motion for summary judgment was based on only
one of five grounds asserted in the motion but stated that the motion "is
GRANTED in all things." Did any of the four remaining grounds that were
not specifically addressed in the court's letter ruling support its Order
granting the motion?
Issue 3
The Defendants asserted a right to recover attorney's fees pursuant to a
clause in a purchase and sale agreement between Ms. Scott and third-party
sellers. Neither Keller Williams nor Furrow was a party to that contract.
Did the trial court thus err in awarding them recovery of attorney's fees
incurred during the trial court proceedings together with a conditional award
of fees in the event of an appeal?
Issue 4
The Defendants also asserted a right to recover attorney's fees pursuant to
Section 17.50(c) of the Texas Business and Commerce Code. In order to
award fees under that provision, the trial court was required to find that
Ms. Scott's DTPA claim "was groundless in fact or law or brought in bad
faith, or brought for the purpose of harassment." Since it did not make any
such findings, did the trial court err in awarding the Defendants recovery of
attorney's fees incurred during the trial court proceedings together with a
conditional award of fees in the event of an appeal?
S TATEMENT OF F ACTS This dispute arises out of Ms. Scott's May 2006 purchase of property in
Seguin and the Defendants' pre-purchase representations regarding the waterfront
character of that property. Of course, certain facts are disputed. As the matter was
resolved on summary judgment, the evidence must be viewed in the light most
favorable to Ms. Scott, the nonmovant. Viewed in that light, the summary
judgment record establishes the following facts relevant to the disposition of this
appeal.
The Purchase of the Property Ms. Scott had recently returned to Texas from California and was interested
in purchasing a waterfront house to lease as a vacation rental property. (2SCR-II
208-10.) Through an internet search, she identified a listing for a property located
at 1104 Peggy Lane in Seguin. 2 ( Id . 210, 277.) The listing office was Keller
Williams Legacy Group. ( Id . 149.) The listing agent was Larry Furrow. ( Id .)
The property listing included a photograph depicting a fenced-in property
adjoining the Guadalupe River. ( Id . 149, 177.) Included in the general description
of the property was the abbreviation "WTRFR," which is short for "waterfront."
( Id . 149, 177.) The listing also included a description of the lot: "Lot Des:
CRNR, WATER." ( Id . 149.) Finally, in the description of the property, the listing
2 1104 Peggy Lane is sometimes referred to in the record as "Lot 2."
stated: "Home sits on hill and front faces the Guadalupe River." ( Id .) Based on
her review of the listing, Ms. Scott understood that Keller Williams was marketing
waterfront property and called Furrow to arrange for an inspection. ( Id . 219-20.)
During the inspection, Ms. Scott toured the house at 1104 Peggy Lane. ( Id .
219-20, 280-81.) In addition, Furrow provided her a tour of the fenced waterfront
lot depicted in the listing. 3 ( Id . 219-20, 280-81.) The gate providing access to that
lot had a lock on it, but Furrow had the combination and opened the gate so that
Ms. Scott could enter and inspect the property. ( Id . 219-20, 222.)
During the tour, Furrow represented that ownership of the waterfront lot was
tied to the ownership of 1104 Peggy Lane. ( Id . 222.) Accordingly, if Ms. Scott
purchased the house, then she also would be purchasing an ownership interest in
the waterfront lot. ( Id . 151, 224.) Furrow further advised that if she later
purchased the vacant lot adjacent to 1104 Peggy Lane, Ms. Scott would have
exclusive ownership of the waterfront lot. ( Id . 151.)
Based on her inspection of the property and the representations made to her
regarding the interest she would acquire in the waterfront lot, Ms. Scott decided to
proceed with the purchase of 1104 Peggy Lane. ( Id . 151.) On April 22, 2006, she
and the sellers entered into a New Home Contract at an agreed price of $135,000.
(2SCR-I 200-08.) The sale closed the following month. ( Id . 193-96, 209-11.)
3 The waterfront lot is sometimes referred to in the record as "Lot 1."
Securing the Exclusive Ownership and Use of the Waterfront Lot In 2007, Ms. Scott executed an Unimproved Property Contract with respect
to and ultimately purchased for $34,000 the vacant lot adjoining 1104 Peggy
Lane. 4 (2SCR-II 4, 151; CR 33-42.) Based on the prior discussions with Furrow,
she understood that with that purchase she had secured exclusive ownership of the
waterfront lot. ( Id . 151.) Consistent with that understanding, she placed her own
lock on the gate to that property. ( Id . 229-30.)
Questions Regarding the Title to the Waterfront Lot In 2012, Ms. Scott decided to sell all of her interest in 1104 Peggy Lane, the
adjoining vacant lot, and the waterfront lot. (2SCR-II 152.) At some point
thereafter, a prospective buyer requested information regarding the title to the
waterfront lot. ( Id .) Then, in March of 2013, Ms. Scott communicated with
counsel for the individual who had sold her the property in an effort to secure
documentation confirming her title to the lot. ( Id .) In an e-mail dated April 17,
2013, the seller's counsel informed Ms. Scott that "we have checked with our client
and there is no documentation, at least recorded that we know, that shows the right
to the gated waterfront park." ( Id .)
4 The vacant lot is sometimes referred to in the record as "Lot 3."
Less than two months later, on May 31, 2013, Ms. Scott filed her Original
Verified Petition asserting claims against Keller Williams, Furrow, and several
other parties. (CR 4-101.)
Ms. Scott was deposed on January 15, 2014. (2SCR-II 199.) During that
deposition, counsel for Keller Williams and Furrow presented to Ms. Scott a plat
map depicting the A.J. Grebey Subdivision No. 1. (2SCR-II 261-64.) That plat
map and the accompanying dedication indicated that, contrary to what Furrow had
represented to Ms. Scott when she was considering purchasing 1104 Peggy Lane,
the waterfront lot had been dedicated for use by all of the lot owners in the
subdivision. ( Id .; see 2SCR-I 197-98). That information had not been disclosed to
Ms. Scott when she purchased the property in 2006. (2SCR-II 154.)
The Suit
As noted above, Ms. Scott filed her Original Verified Petition initiating the
suit on May 31, 2013. (CR 4.) She subsequently filed her First-Amended Petition,
in which she asserted the following claims against Keller Williams and Furrow:
1. Violations of Section 17.46 of the Deceptive Trade Practices-Consumer
Protection Act;
2. Fraud and fraud by non-disclosure; and
3. Negligent misrepresentation.
(2SCR-I 14-74.)
Keller Williams and Furrow filed traditional and no-evidence motions for
summary judgment seeking entry of a take-nothing judgment as to each of these
claims (the "Claims Motion"). (2SCR-I 177-222.) Ms. Scott filed a response with
controverting evidence. (2SCR-II 1-453.)
After taking the Claims Motion under advisement, the trial court issued a
letter announcing its ruling. (CR 536-37.) The court granted the traditional motion
on the basis of one of the five grounds the Defendants had asserted. Specifically,
the court ruled that the information Ms. Scott needed to discover any claims she
may have had against Keller Williams and Furrow was available in the Guadalupe
County real property records, that "she is held to have known" that information,
and that the discovery rule thus did not toll the running of the applicable
limitations periods. ( Id .) The court denied the no-evidence portion of the motion.
( Id .) These rulings were later memorialized in a formal Order, which attached the
letter ruling as an exhibit and severed the claims against Keller Williams and
Furrow into a separate cause. (CR 534-537.)
Keller Williams and Furrow then filed a motion seeking summary judgment
on their counterclaim for attorney's fees (the "Fees Motion"). (SCR-II 8-37.) The
trial court granted that motion in conjunction with the entry of its Final Judgment.
(SCR-II 38-40.) In the Final Judgment, the court (i) incorporated its prior ruling
on the Claims Motion, (ii) directed that Ms. Scott take nothing on her claims, and
(iii) awarded the Defendants $70,179 in attorney's fees through judgment and
conditional fees in the event of an appeal. ( Id .)
Ms. Scott appealed. (SCR-II 128-33.)
S UMMARY OF THE A RGUMENT In its consideration of the Claims Motion and the Fees Motion, the trial court
was led astray. Those motions presented arguments that appeared to justify the
relief the Defendants sought but ignored controlling precedents that established
otherwise.
With respect to the Claims Motion, the ground on which the trial court relied
in granting summary judgment asserted that Ms. Scott was on notice of public
records establishing the status of the title to the waterfront lot and her claims thus
were not subject to the discovery rule. But in a series of decisions beginning with
Ojeda de Toca v. Wise , 748 S.W.2d 449 (Tex. 1988), Texas courts have established
that constructive notice principles do not foreclose application of the discovery rule
to DTPA, fraud, and negligent misrepresentation claims. The trial court erred in
holding that they do.
The remaining grounds asserted in the Claims Motion were fact-based
arguments the trial court did not explicitly rule on. Even if it were appropriate to
consider those arguments in this appeal, they did not establish an absence of disputed
issues of material fact justifying summary judgment.
With respect to the Fees Motion, the Defendants' principal argument was that,
as a prevailing party, they were entitled to recover their fees and expenses under
Paragraph 17 of the New Home Contract between Ms. Scott and the third-party
sellers of 1104 Peggy Lane. However, this Court considered a similar purchase
and sale agreement and rejected a similar argument in Lesieur v. Fryar , 325
S.W.3d 242 (Tex. App.–San Antonio 2010, pet. denied). The analysis in Lesieur
establishes that, because they were neither parties to nor third-party beneficiaries
of the New Home Contract, Keller Williams and Furrow were not entitled to seek
an award of attorney's fees under that agreement. The other ground asserted (but
not argued) in the Fees Motion could have supported an award only if the trial
court made certain required findings that were not included in the Final Judgment.
The trial court's rulings on the Claims Motion and the Fees Motion should
be reversed, and this proceeding should be remanded for trial of Ms. Scott's DTPA,
fraud, and negligent misrepresentation claims.
A RGUMENT AND A UTHORITIES I. Standard of review.
An Order granting summary judgment is reviewed de novo . Sudan v. Sudan ,
199 S.W.3d 291, 292 (Tex. 2006); Valence Operating Co. v. Dorsett , 164 S.W.3d
656, 661 (Tex. 2005).
In connection with a traditional motion for summary judgment, the movant
bears the burden of establishing that there are no genuine issues of material fact
and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003). In
assessing whether there exists a disputed issue of material fact precluding summary
judgment, the evidence must be viewed in the light most favorable to the
nonmovant, crediting favorable evidence if reasonable jurors could do so and
disregarding contrary evidence unless reasonable jurors could not. City of Keller v.
Wilson , 168 S.W.3d 802, 827 (Tex. 2005).
When a defendant moves for summary judgment based on an affirmative
defense, the defendant must conclusively prove all elements of that defense.
Rhône–Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999). To accomplish
this, the defendant must present summary judgment evidence that establishes each
element of the defense as a matter of law. Ryland Group, Inc. v. Hood , 924
S.W.2d 120, 121 (Tex. 1996); Booker v. Real Homes, Inc. , 103 S.W.3d 487, 491
(Tex. App.–San Antonio 2003, pet. denied).
II. The trial court erred in granting the Claims Motion.
The Claims Motion asserted five grounds for summary judgment on
Ms. Scott's DTPA, fraud, and negligent misrepresentation claims. (2SCR-I 182-
83.) The trial court's ruling granting the motion was based on the second of these
grounds — that the information Ms. Scott needed to discover any claims she may
have had against Keller Williams and Furrow was available in the Guadalupe
County real property records, she was deemed to have notice of those records, and
the discovery rule thus was not applicable.
In a letter to the parties announcing its decision, the court explained the legal
principle on which the ruling was based:
The only issue raised by defendants' motions for summary judgment
is the defense of the statute of limitations. . . .
There appears to be no dispute that suit was filed outside the
applicable statutes of limitations for each cause of action. The
question before the Court is whether any "discovery rule" or
"fraudulent concealment" have tolled the running of the statues [ sic ].
It is clear that the law in Texas is that fraud prevents the running of
the statute of limitations until it is discovered or by the exercise of
reasonable diligence it might have been discovered. Ruebeck v. Hunt
176 SW2d 738 (Tex. 1943).
However when a person has a right in property, and she claims
fraudulent statements are made concerning title to the property, when
the public records are open to her, she must exercise reasonable
diligence to discover the defect. Exxon Mobil v. Ford, 187 SW3d 154
(Court of Appeals: Beaumont, 2006).
Information contained in public records can be ascertained through
reasonable diligence and is not inherently undiscoverable. Thus a
person must exercise reasonable diligence, and if he could have
discovered a defect, she is held to have known it, and limitations will
run against her. Swanson v. Stouffer & Assocs., 2014 WL 25 22145
(Court of Appeals: Austin, 2014).
Although it is not precisely clear what plaintiff is claiming (either
exclusive or non-exclusive access to the waterfront), there is no
question the precise nature of her title could have been ascertained
from public record. Since she did not discover the defect, if any, she
did not exercise due diligence. Therefore the applicable statutes of
limitations are not tolled, and suit on her causes of action is banned.
The defendants' traditional motion for summary judgment is
GRANTED in all things.
(CR 536-37 (emphasis added).)
The holding that Ms. Scott had a duty to research the Guadalupe County real
property records to investigate whether the Defendants' representations were
fraudulent or deceptive is contrary to long-standing precedent.
A. The existence of public records reflecting the state of the title to
the waterfront lot does not foreclose application of the discovery rule to Ms. Scott's claims.
1. The analysis in the trial court's letter ruling is contrary to well-settled precedent.
The trial court's letter makes clear that its ruling granting the Claims Motion
was based on its conclusion that Ms. Scott had constructive notice of the state of
the title to the waterfront lot and that this constructive notice precluded application
of the discovery rule to her claims against Keller Williams and Furrow. The Texas
Supreme Court and a number of appellate courts, including this Court, have
rejected such reasoning.
In Ojeda de Toca v. Wise , the Texas Supreme Court expressly held that
constructive notice under Section 13.002 of the Texas Property Code and its
predecessor statutes does not constitute a defense to a DTPA claim. 748 S.W.2d 449,
451 (Tex. 1988). The plaintiff in that case had purchased a house that later was
demolished by the City of Houston pursuant to an order filed in the Harris County
deed records prior to the purchase. Id . at 450. The plaintiff sued the seller, alleging
DTPA, fraud, and negligence claims. Id . Before the Supreme Court, the seller
argued that the DTPA and fraud claims were barred because the recording of the
demolition order provided the buyer with constructive notice of its existence. Id .
In evaluating the seller's defense, the Supreme Court looked to the purposes of
recordation statutes such as Section 13.002. It concluded that such statutes were
adopted to protect
"intending purchasers and encumbrancers . . . against the evils of secret
grants and secret liens and the subsequent frauds attendant upon them.
To that end, it is provided that an innocent purchaser, having no notice
of liens or adverse claims not disclosed by the records in the manner
prescribed by the statute, will hold land as against such claims and
liens."
Id . at 450-51 (quoting 66 Am. Jur. 2d Records and Recording Laws § 48 (1973)).
The Supreme Court rejected the seller's invitation to apply the constructive
notice arising out of recordation statutes outside the context of title disputes, noting
the absence of any "intent on the part of the legislature to bar DTPA or fraud actions
because an examination of county records would have disclosed the seller's
deception." Id . at 450 With regard to the buyer's DTPA and fraud claims
specifically, the Supreme Court stated:
Title to [the Buyer's] house is not in issue, and we perceive no valid
reason to allow [the Seller] to escape damages liability arising out of
fraud or conduct proscribed by DTPA § 17.46(b)(23). There are
defenses to a deceptive trade practices action, e.g., DTPA § 17.506, but
imputed notice under real property recording statutes is not one of them.
In sum, we hold that recording of the City's demolition order does not relieve [the Seller] from liability to [the Buyer] under her DTPA and
fraud theories of recovery.
Id . at 451.
This Court has applied this reasoning in two subsequent opinions, reversing
trial court judgments that denied recovery based on the defendants' limitations
defenses. See Salinas v. Gary Pools, Inc. , 31 S.W.3d 333, 336-37 (Tex. App.–San
Antonio 2000, no pet.); Lightfoot v. Weissgarber , 763 S.W.2d 624, 626-27 (Tex.
App.–San Antonio 1989, writ denied). 5 As the Court confirmed in Salinas :
The doctrine of constructive notice has limited application, and when
the rationale behind application of the doctrine does not exist, public
records will not be held to create an irrebuttable presumption of actual
notice.
Salinas , 31 S.W.3d at 336-37. Consistent with that analysis, the Court held that "the
doctrine of constructive notice of real property records does not operate to constitute
notice to plaintiffs bringing DTPA cases which would begin the running of the
statute of limitations." Id . at 337.
5 Other courts of appeals also have applied the reasoning in Ojeda de Toca . See, e.g. ,
Johnson v. Prudential Relocation Management Ltd. P'ship , 918 S.W.2d 68, 69-70 (Tex. App.–
Eastland 1996, writ denied) (reversing summary judgment based on defendants' limitations defense
with respect to DTPA, negligence, and gross negligence claims); ECC Parkway Joint Venture v.
Baldwin , 765 S.W.2d 504, 509 (Tex. App.–Dallas 1989, writ denied) (reversing summary judgment
based on defendants' limitations defense with respect to DTPA, fraud, negligent misrepresentation,
and breach of fiduciary duty claims).
These precedents were neither cited in the Claims Motion nor referenced in the
trial court's letter ruling. They thoroughly undermine the holding that the discovery
rule is inapplicable to the claims Ms. Scott asserted against Keller Williams and
Furrow.
2. The authorities cited in the trial court's letter ruling did not support the entry of summary judgment.
The letter ruling cited two cases — Exxon Mobil Chemical Co. v. Ford , 187
S.W.3d 154 (Tex. App.–Beaumont 2006), aff'd in part, rev'd in part , 235 S.W.3d
615 (Tex. 2007), and Swanson v. Stouffer & Associates, LLP , No. 03-12-00071-
CV, 2014 WL 2522145 (Tex. App.–Austin May 30, 2014, no pet.) — as support
for the holding that the existence of information in the public records foreclosed
application of the discovery rule with respect to Ms. Scott's claims. Neither case
stands for that proposition.
Initially, it does not appear that in either case the claimants relied on Ojeda
de Toca and its progeny in opposing the defendants' summary judgment motions.
Certainly, neither opinion cites that line of authority.
In addition, in Ford , the issue before the court involved a question of title.
The claimant sought to cancel a pipeline easement granted by his predecessor in
title on the ground that the easement was defective. Ford , 187 S.W.3d at 157. As
discussed in Ojeda de Toca , the purpose of the recordation statutes is to protect
good faith purchasers from the loss or impairment of title due to undisclosed liens
or adverse claims. Ojeda de Toca , 748 S.W.2d at 450-51. As the issue before the
court in Ford was an adverse claim regarding the defendant's title to its easement, it
was an appropriate circumstance for application of constructive notice principles.
At issue in Swanson was whether the claimants had timely asserted negligence
and negligent misrepresentation claims against an appraiser who failed to discover
and disclose that the septic system for an RV park the claimants had purchased was
insufficient and being operated illegally. Swanson , 2014 WL 2522145 at *1. The
case thus did not involve a fraudulent misrepresentation or deceptive trade practice
of the sort addressed in Ojeda de Toca .
Neither Ford nor Swanson involved the type of claims that Ms. Scott
asserted against Keller Williams and Furrow. Because those decisions do not
negate the principles announced in Ojeda de Toca and applied by this Court in
Salinas and Lightfoot, the trial court erred in holding that the existence of title
information in the public records precluded application of the discovery rule to
Ms. Scott's claims.
B. The remaining grounds asserted in the Claims Motion provide no
foundation for affirming the Final Judgment.
As noted above, the Claims Motion referenced four additional grounds for
summary judgment. The first and third grounds asserted two additional limitations
arguments. (2SCR-I 182.) The trial did not address these arguments in its letter
ruling or in the formal Order memorializing that ruling. (CR 534-37.)
The fourth and fifth grounds were directed toward the merits of Ms. Scott's
DTPA, fraud, and negligent misrepresentation claims. (2SCR-I 182-83.) The trial
court failed to address these grounds, as well. (CR 534-37.) In fact, the court
stated in its letter ruling that "[t]he only issue raised by defendants' motions for
summary judgment is the defense of the statute of limitations." ( Id . 536.) It thus is
clear that the court did not base its decision to grant summary judgment on these
grounds.
Regardless, the arguments asserted in the remaining grounds did not support
entry of summary judgment.
1. Defendants' reference to Ms. Scott's deposition testimony does not support their limitations defense.
As the first ground for summary judgment, the Claims Motion argued that
Ms. Scott "was unsure of what her legal interest in the Waterfront Park was at the
time of closing" and she thus had a duty to investigate the scope of the rights being
acquired. (2SCR-I 182.) In support of this ground, the motion relied on one
passage from Ms. Scott's deposition.
In the cited exchange, Ms. Scott makes clear that Furrow:
"had access to the waterfront access lot and explained that that was a part
of 1104 Peggy Lane"; and
"explained that . . . by purchasing 1104 Peggy Lane, I would be
purchasing a legal interest in the waterfront access lot."
( Id . 218.) Counsel for the Defendants proceeded to question Ms. Scott regarding
her understanding as to whether others had access to the waterfront lot, and she
stated that as of the closing on 1104 Peggy Lane she didn't know who else may
have had access to that property. ( Id .) However, the reason for this is made clear
in another part of the summary judgment record.
In the affidavit submitted in support of her response to the Claims Motion,
Ms. Scott stated:
In 2006, I purchased Lot 2 and what I believed was a one-half interest in Lot 1 (the waterfront/water access lot associated with the
property I was purchasing.) At the suggestion of Movant, LARRY
FURROW of KELLER WILLIAMS LEGACY GROUP (Sellers'
Listing Agent), one year later (in 2007), I purchased Lot 3 (the
adjoining vacant lot to Lot 2) directly from Defendants, JUANITA
DENN AND D.R. BARR ("Sellers"), so as to acquire exclusive
ownership of the waterfront/water access property.
(2SCR-II 151.) The evidence thus suggests Ms. Scott understood that until she
purchased the adjoining vacant lot she would share ownership of the waterfront lot
and others (who she did not know) would have access to it.
That Ms. Scott believed she ultimately acquired exclusive ownership of the
waterfront lot is wholly consistent with testimony later in her deposition: "I
thought I owned the property, so I thought I was within my right to cut the locks
off and put new locks on." (2SCR-II 230.)
The referenced deposition excerpt fails to establish as a matter of law that
Ms. Scott was uncertain regarding the extent of the interest she was acquiring in
the waterfront lot. At most, it establishes the existence of a disputed issue of
material fact with respect to that issue.
2. Defendants' reference to Ms. Scott's e-mail to the sellers' counsel does not support their limitations defense.
As the third ground for summary judgment, the Claims Motion argued that
"Plaintiff's own pleadings acknowledge that she sent an email to Mr. Robert Ritter
concerning her legal right to the property more than two years before the date of
filing this lawsuit." (2SCR-I 182, 184.) The cited passage addressed a notice of
default Ms. Scott had received regarding the vacant lot adjoining 1104 Peggy
Lane. As described in the petition, on March 23, 2011, Ms. Scott sent an e-mail
responding to the notice that "1) disputed the debt amount; and 2) requested the
legal instrument which proved the propert(ies) she purchased were indeed
"waterfront" water access properties." ( Id . 219.)
The referenced e-mail was included as an exhibit to and quoted in the
Claims Motion. (2SCR-I 186, 212-14.) Significantly, the motion omitted the last
three sentences of the discussion of the title issue. Quoted in full, the relevant
passage in the e-mail stated:
DISPUTE II : The property described in my paragraph No. 1 above,
was supposed to be purchased with the same water-front access as the
property described in my paragraph No. 2 above. However, in
reviewing the respective deeds of trust, the language is not the same.
Lot 3 in the A.J. Grebey Subdivision is also a part of the A.J. Grebey
Subdivision No. 1, a resubdivision of a portion of Elm Grove Camp";
but the Deed of Trust nor the other recorded title documents reflect
that from the acquisition. In simple terms, I purchased Lot 3 with all
of its water-front privileges as a stand-alone property. According to
the recorded title paperwork, those water-front privileges did not carry
over to me during the acquisition. This will have to be rectified
immediately. The purchase prices of Lot 2 was commensurate
with it being "water-front property" , with all the same water-front
privileges as was spelled out in the deed to LOT 3.
THEREFORE, I will await your corrected title/paperwork, so that we
may put this matter to rest.
(2SCR-I 213-14 (shading added).)
The quotation from this e-mail included in the Claims Motion stopped with
the sentence immediately preceding the shaded excerpt. (2SCR-1 186.) It thus
sought to create an impression that Ms. Scott had doubts regarding the property
interest she had acquired and was on notice to investigate her title and any
potential claims against Keller Williams and Furrow. ( See id . 184.) But as the
shaded sentences reflect, Ms. Scott had no doubt regarding the interests she had
acquired. Rather, she was seeking corrected title documents properly reflecting
those interests.
The cited e-mail fails to establish as a matter of law that Ms. Scott was on
notice of her potential claims against Defendants. It thus provided no basis for
summary judgment on their limitations defense.
3. Defendants' reference to Ms. Scott's deposition testimony does not establish an absence of disputed issues of material fact regarding her claims.
As the fourth ground for summary judgment, the Claims Motion argued
Ms. Scott admitted in her deposition "that she was led to believe by Larry Furrow
that her access to the Waterfront Park was shared with her neighbors." ( Id . 182.)
In support of this argument, the motion cited the same deposition excerpt
addressed in connection with the first ground above and an additional excerpt in
which Ms. Scott identified some similarities between her purchase of 1104 Peggy
Lane and her purchase of another property in New Braunfels. ( Id . 182, 218, 221.)
The first deposition excerpt is fully addressed above. See supra II.B.1. For
the same reason it fails to establish the Defendants' limitations defense, it fails to
establish an absence of deceptive acts, fraud, and negligent misrepresentations by
Keller Williams and Furrow.
The second excerpt also fails to establish an absence of disputed issues of
material fact. In that excerpt, Ms. Scott stated that the transactions involved
similar characteristics — improved tracts with an accompanying interest in
waterfront lots. Seizing on her testimony that the New Braunfels waterfront lots
were shared with other residents in the neighborhood, the Defendants argue
Ms. Scott thereby acknowledged "that Defendant Larry Furrow's advertising of
The Property was accurate; he was selling a lot that had access to a community
waterfront area." (2SCR-I 187.) The argument fails for a number of reasons:
The property listing did not state that 1104 Peggy Lane was being sold
with "access to a community waterfront area." The listing described the
property with the abbreviation "WTRFR" and described the lot as
"CRNR, WATER." (2SCR-II 149.)
Ms. Scott has never acknowledged that the advertising of the property by
Keller Williams and Furrow "was accurate" or that she understood she
was merely acquiring "access to a community waterfront area."
Ms. Scott has indicated that it was represented she would acquire
exclusive ownership of the waterfront lot upon purchasing 1104 Peggy
Lane and the adjoining vacant lot, and her subsequent actions were
consistent with that belief. See supra II.B.1.
The deposition excerpt suggests that Ms. Scott believed there were
similarities in the two transactions, but it does not establish she believed they were
identical in all material respects. Viewed as a whole, the summary judgment
record supports a conclusion that, based on the Defendants' representations,
Ms. Scott understood she would be able to (and that she ultimately did) acquire
exclusive ownership of the waterfront lot. Accordingly, there are disputed issues
of material fact precluding summary judgment on her claims against Keller
Williams and Furrow.
4. Defendants' unsupported argument regarding conspiracy and fraud by non-disclosure claims provides no basis for affirmance.
The Defendants' final ground for summary judgment asserted that "Plaintiff
has failed to provide adequate evidence in support of her claims of conspiracy and
fraud by non-disclosure." (2SCR-I 183.) The Claims Motion referenced the First-
Amended Petition as support for this assertion but did not include any other
argument or evidence.
This ground misstates the burden in the context of a traditional motion for
summary judgment. Keller Williams and Furrow bore the burden of coming
forward with evidence negating at least one essential element of Ms. Scott's claims.
See Randall's Food Markets, Inc. v. Johnson , 891 S.W.2d 640, 644 (Tex. 1995).
Ms. Scott was not obligated in her petition to present evidence proving up those
claims. The Defendants' fifth ground presented nothing for consideration.
III. The trial court erred in granting the Fees Motion.
The Fees Motion asserted two grounds for recovery of attorney's fees and
costs. (SCR-II 10.) First, it argued that Paragraph 17 of the New Home Contract
entitled Defendants to recover their fees and expenses as a prevailing party in the
litigation. Second, it asserted that an award of fees and expenses was appropriate
under Section 17.50(c) of the Texas Business and Commerce Code.
In its Final Judgment, the trial court granted the Fees Motion and awarded
the Defendants $70,179 in attorney's fees through judgment and conditional fees in
the event of an appeal. (SCR-II 39.) As discussed below, that award is not
supported by either ground for recovery asserted in the Fees Motion.
A. The Defendants were not entitled to pursue an award of
attorney's fees under the New Home Contract.
Paragraph 17 of the New Home Contract provided:
ATTORNEY'S FEES: The prevailing party in any legal proceeding
related to this contract is entitled to recover reasonable attorney's fees
and all costs of such proceeding incurred by the prevailing party.
(SCR-II 22.)
Generally, in order to enforce rights under a contract, a claimant must be
either a party to the contract or a third-party beneficiary of it. Lesieur v. Fryar ,
325 S.W.3d 242, 251 (Tex. App.–San Antonio 2010, pet. denied). Because Keller
Williams and Furrow were neither parties to nor third-party beneficiaries of the
New Home Contract, they were not entitled to rely on or enforce the attorney's fees
provision.
1. The Defendants were not parties to the agreement.
The first paragraph on the first page of the New Home Contract provided:
PARTIES: D.R. Barr Juanita Denn (Seller) agrees to sell and
convey to Stacey Jo Scott (Buyer) and Buyer agrees to buy from
Seller the Property described below.
(SCR-II 17.) Paragraph 8 further provided:
BROKER'S FEES: All obligations of the parties for payment of
broker's fees are contained in separate written agreements .
( Id . 20 (emphasis added).)
The clear purpose of Paragraph 1 was to identify the parties to the contract,
and neither Keller Williams nor Furrow was identified as a party. In addition,
Paragraph 8 established that the relationships, if any, between the sellers and any
broker and between Ms. Scott and any broker were to be memorialized in other
agreements. Based on the plain language of these provisions, it is clear that Keller
Williams and Furrow were not parties to the New Home Contract. 6
This conclusion is supported by this Court's holding in
Lesieur v. Fryar , in
which the Court construed a similar purchase and sale agreement with identical
Parties and Attorney's Fees provisions. See Lesieur , 325 S.W.3d at 251-52. In that
case, the Court held that Paragraph 1 of that agreement "was a definitional rather
than merely a descriptive provision" and established the seller and buyer as the
only parties to the agreement. Id . at 252.
2. The Defendants were not third-party beneficiaries of the agreement.
Texas precedents establish that there is a presumption against conferring
third-party beneficiary status on non-contracting parties. See Tawes v. Barnes , 340
S.W.3d 419, 425 (Tex. 2011); Lesieur , 325 S.W.3d at 252. Any doubts must be
resolved against the existence of a third-party beneficiary. Lesieur , 325 S.W.3d at
6 This is consistent with the following affirmative defense included in the Defendants'
Third Amended Answer:
Defendants deny the existence of a written contract or written warranties, express or implied, between themselves and the Plaintiff and/or plead that such
instruments are without consideration or that the consideration of the same has
failed in whole or in part.
(2SCR-I 170.)
252. Thus, "in the absence of a clear and unequivocal expression of the
contracting parties' intent to directly benefit a third party, courts will not confer
third-party beneficiary status by implication." Tawes , 340 S.W.3d at 425.
There are two types of third-party beneficiaries who may enforce a contract.
A "donee beneficiary" is one who, when the contract is performed, will receive the
benefit of that performance as a pure donation. Lesieur , 325 S.W.3d at 252. A
"creditor beneficiary" is one who receives the benefit of the contractual
performance in satisfaction of a legal duty owed to the beneficiary. Id . However,
benefits that are an indirect or incidental result of the performance of a contract are
not sufficient to confer third-party beneficiary status on a non-contracting party.
Tawes , 340 S.W.3d at 425; Lesieur , 325 S.W.3d at 252.
The intended beneficiaries of the New Home Contract were the sellers, who
would be paid the sale price, and Ms. Scott, who would receive title to the
property. Nothing in the contract suggests an intent to confer a direct benefit on
Keller Williams or Furrow as a donee or creditor. In fact, the language of
Paragraph 8 made clear that any benefits they were to receive as brokers were
governed by "separate written agreements." (SCR-II 20.)
Consistent with the Court's conclusion in Lesieur , the parties to the New
Home Contract did not contract with the intent to directly benefit the realtors
involved in their transaction. See Lesieur , 325 S.W.3d at 253. Any benefit Keller
Williams and Furrow received as a result of the performance of that contract was
merely incidental and insufficient to confer third-party beneficiary status. See id .
Keller Williams and Furrow had no contractual right to rely on or enforce
Paragraph 17 of the New Home Contract. See id . To the extent the trial court
based its award of fees on that provision, it erred.
B. The Final Judgment contains no findings supporting an award of
fees under Section 17.50(c) of the Business and Commerce Code.
As a second ground for their Fees Motion, Defendants asserted that
Ms. Scott's DTPA claim was "groundless in law and fact, and brought in bad faith
for the purpose of harassment," entitling them to an award of attorney's fees under
Section 17.50(c) of the Business and Commerce Code. (SCR-II at 10.) That
section provides:
On a finding by the court that an action under this section was
groundless in fact or law or brought in bad faith, or brought for the
purpose of harassment, the court shall award to the defendant
reasonable and necessary attorneys' fees and court costs.
Tex. Bus. & Com. Code Ann. § 17.50(c) (West 2011).
The statute specifically requires that an award of fees be supported by an
affirmative finding by the trial court that the plaintiff's claim was groundless or
brought in bad faith or for the purpose of harassment. Texas courts have
consistently reversed awards of attorney's fees under Section 17.50(c) in the
absence of such findings. E.g. , Jones v. Smith , 649 S.W.2d 29, 29-30 (Tex. 1983);
Marker v. Garcia , 185 S.W.3d 21, 30 (Tex. App.–San Antonio 2005, no pet.).
The trial court's ruling on the Fees Motion was set forth in the Final
Judgment, which did not include any findings that would justify an award of fees
and costs under Section 17.50(c). (SCR-II 38-40.) Accordingly, that provision
does not support the judgment awarding the Defendants their attorney's fees and
costs.
C ONCLUSION AND P RAYER Ms. Scott purchased 1104 Peggy Lane and the adjoining vacant lot because
Keller Williams and Furrow represented that ownership of those properties carried
with it ownership of the waterfront lot. But in their Claims Motion and Fees
Motion, Keller Williams and Furrow argued that Ms. Scott should have known
better, that she should be denied any opportunity to pursue recovery of the
damages resulting from their deceptive acts, and that she should pay their
attorney's fees and costs. The motions, however, failed to acknowledge the
controlling precedents that undermined the legal contentions asserted in support of
these arguments and on which the trial court erroneously relied.
The trial court's Final Judgment allows Keller Williams and Furrow to evade
responsibility for their conduct, leaving Ms. Scott to bear the financial impacts of
their deceptive acts and fraudulent representations. The applicable statutes and
precedents do not support such an unjust result.
Accordingly, Ms. Scott respectfully prays that this Court (i) reverse the trial
court's Final Judgment in all respects, (ii) remand this cause for further
proceedings, and (iii) grant her such other and further relief to which she may be
justly entitled.
Respectfully submitted, By: /s/ Frederick D. Junkin Frederick D. Junkin State Bar No. 11058030 fredjunkin@andrewskurth.com Andrews Kurth LLP 600 Travis, Suite 4200 Houston, Texas 77002 (713) 220-4200 (713) 220-4285 (fax) ATTORNEYS FOR APPELLANT STACEY SCOTT *37 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Brief of
Appellant Stacey Scott was forwarded to all counsel of record by electronic service
on this 30th day of September, 2015.
/s/ Frederick D. Junkin Frederick D. Junkin SERVICE LIST
Scott F. Cline
Vaughan E. Waters
Thornton, Biechlin, Segrato,
Reynolds & Guerra, L.C.
100 N.E. Loop 410, Suite 500
San Antonio, Texas 78216-4741
C ERTIFICATE OF C OMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the
undersigned certifies that this brief complies with the word limits of Rule
9.4(i)(2)(B) because, exclusive the parts of the brief exempted by Rule 9.4(i)(1), it
contains 6,325 words.
/s/ Frederick D. Junkin Frederick D. Junkin Attorney for Appellant Stacey Scott
Dated: September 30, 2015 *38 Appendix 1
Final Judgment (SCR-11 38-40)
SFC/JYA 02/19/2015, 38741
CAUSE NO. 13-1125-CV-A STACEY SCOTT § IN THE DISTRICT COlJRT
Plaintiff, § ~~ GUADALUPE COUNTY, TEXAS
v.
LARRY FURROW AND KELLER ~M/n 1~,15 ~
WD;.LIAMS LEGACY GROUP ~~~'Q.ru( ~ 25m JUDICIAL DISTRICT
P~fendants. §
FINAL JUDGMENT
On this day came to be heard the above styled and numbered cause. All parties appeared
by and through their re~pective counsel and announced "ready." The Court proceeded to take up
this matter for consideration in its due order on the docket.
The Court finds that it previously granted summary judgment in favor of Defendants
herein, LARRY FURROW and KELLER WILLIAMS LEGACY GROUP, by order. dated
November 14, 2014, in Cause Number 2013-1125-CV, in the 25th Judicial :Oistrict Court of
Guad~upe County, Texas (the "Main Cause"), ordering that Plaintiff take nothing against the
Defendants on all of the Plaintiff's claims; the Court further ordered that Plaintiff's claims
against Defendants be severed into a separate cause-assigned as Cause Number 2013-1125-
CV-A, in the 25th Judicial District Court of Guadalupe County, Texas (the "Severed Cause").
The Court further finds that the only remaining issues pending before this Court in this,
the Severed Cause is the counterclaim by Defendants against Plaintiff seeking recovery of
attorneys' fees and costs in favor of Defendants and against Plaintiff.
After examining all of the pleadings on file in this case, reviewing Defendants'
Traditional Motion for Summary Judgment on Defendants' Counter-Claim for Attorney's Fees
Page 1 of3 Page 38
and the proper summary judgment evidence attached therein and any responses filed thereto, and
hearing and considering the arguments and authorities presented by counsel, finds that
Defendants' Traditional Motion for Summary Judgment on Defendants' Counter-Claim for
Attorney's Fees is well-founded and should be in all things GRANTED.
It is, therefore, ORDERED, ADJUDGED, and DECREED as follows:
1. The Court hereby incorporates the Summary Judgment entered by this Court in favor of
Defendants LARRY FURROW and KELLER WILLIAMS LEGACY GROUP, by order dated
November 14, 2014, originally in the Main Cause and ORDERS that Plaintiff Stacey Scott take
nothing on all of her claims against Defendants LARRY FURROW and KELLER WILLIAMS
LEGACY GROUP.
2. The Court Further Orders that Defendants LARRY FURROW and KELLER WILLIAMS
LEGACY GROUP do have and recover from the Plaintiff Stacey Scott, the following sums as
reasonable and necessary attorney's fees:
A. Through the trial of the Plaintiff's claims in the Main Cause $ 70,179.00
and the Severed Cause attorney's fees: $ 2Q,QQQ 00.. ~()/~
B. fu the event appeal is perfected to the Fourth Court of
Appeals, the additional sum of:
C. In the event of submission of and/or a response to a -(b
petition for review to the Texas Supreme Court the $ 1Q 5 0QO.~ . ' ) ~
additional sum of: . f
0. In the event the Texas Supreme Court grants the
petition for review or orders full briefing, the $ 26,666.66 ~ ff)ft.D
additional sum of:
In addition to the foregoing, all costs herein incurred are hereby adjudged against
Plaintiff Stacey Scott.
Page 2 of3 Page 39
!; ..
It is the intention of this Court that this Judgment be a full, final, and appealable
judgment disposing of all of the parties and all of the relief which is addressed in this, the
Severed Cause. It is, therefore, further ORDERED, ADJUDGED, and DECREED that any relief
sought in this Severed Cause and p.ot otherwise addressed in this Judgment, is hereby, and in all .. . .
JUDGE PRESIDING APPROVED AS TO FORM:
THORNTON, BIECHLIN, SEGRATO
REYNOLDS & GUERRA, L.C.
Fifth Floor - One International Centre
100 NELoop 410
San Antonio, Texas 78216
(21 0) 342-5555
(210) 525-066~
BY:~~~~~~~~~--~
Scott F. Cline.
State Bar No. . ATTORNEYS FOR DEFENDANTS
LARRY FURROW and
KELitER WILLIAMS LEGACY GROUP
Stacey Scott, Pro Se
634 Ashmore Ave.
New Braunfels, Texas 78130
Page3 of3 Page 40
Appendix2
Order Granting Claims Motion (CR 534~37) *43 ~~~be l,Q1Ji~fli')·:~yJ;~l~: 'OChJ')l \XAJ"i {\JJ LV )X.
Cause No. 13-1125~CV IN THE DISTRICT COURT @ STACEY SCOIT § §
v. § - 25m JUDICIAL DISTRICT
§
JUANITA DENN, D.R. BARR, LARRY §
FURROW, KELLER WILLIAMS LEGACY §
GROUP, PATRICKDENN, ROBERT §
RIITER, and CAROL MATHEWS § GUADALUPE COUNTY, TEXAS
ORDER ON DEFENDANT KELLER WILLIAMS LEGACY GROUP MOTION FOR
TRADITIONAL AND NO·EVDENCE SUlVlMARY JUDGMENT Having considered the motions, responses, and oral arguments of both Plaintiff and
Defendants' counsel, this Court rules on J?efendants Larry Furrow and Keller Williams Legacy
Group's Motion for Traditional and No-Evidence Summary Judgment and all objections to
Summary Judgment Evidence as follows:
Defendants' objections to Plaintiff's expert broker opinions. and Plaintiff's supplemental
support affidavit are sustained.
Plaintiff's objections to the use of her First Amended Petition are overruled.
Defendants' Traditional Motion for Summary Judgment is Granted in all things.
Defendants, No-Evidence Motion for Summary Judgment is Denied.
This court orders that by granting Defendant's Traditional Motion for Summary
Judgment all causes of action brought by Plaintiff against Larry Furrow and/or Keller Williams
Legacy Group are severed and shall now be referenced as cause no.
Letter Ruling on this matter dated November 3, 2014 attached as
/ ~~ tJ~14.
Signed this the
JUDGE PRESIDING ORDER ON DEFENDANTS LARRY FURROW AND KELLER WILLIAMS Page 1 of2 LEGACY GROUP'S TRADITIONAL AND NO~EVIDENCE MOTION
FOR SUMMARY JUDGMENT.
Page 534
APPROVED AS TO FORM:
Scott F. Cline
Jack W Hawthorne III
100 N.E. Loop 410, Fifth Floor
San Antonio, Texas 78216
Stacey Scott
634 Ashmore Ave.
New Braunfels, Texas 78130
ORDER ON DEFENDANTS LARRY FURROW AND KELLER Wll.,LIAMS · Page 2 of2 LEGACY GROUP'S :TRADITIONAL AND NO~EVIDBNCE MOTION FOR SUMMARY JUDGMENT.
Page 535 *45 P~YLLIS BUSH JVDY CADDELL OFFICiAL COURT RePORTER
COURT ADMINISlRA'fOR I COORDINATOR
rw.c. ·!l(iif@m{a{C
:4m! .25tfl. Jutfwltl! 'lJi.strltt Jucfee COl.ORADO, GONZALES, GUACJAI.UPE! & LAVAOA COUNTIES November3, 2014 Scott F. Cline
Stacey Scott Thornton, Bleohlin, Segrato, ProSe Reyno/d3 & Guerra, L. C. staceyscott549@msn.com (713) 355 ..
Re~ No. 13-l125 ... CV; Stacey Scott v, Juanita Denn, et al; In the District Court; Guadalupe
County, Texas .
Counsel,
I have reviewed the traditional and no evidence motions for SumntiUY judgment filed by
defendnnts Furrow and Keller Wllliwns, the plaintiffs response Emd all exhibits. The following
is the ruling of the Court.
Defendants' objections to plaintiff's expert broker opm10n~ and. plaintiff's supplemental
supportive affidavit aro SUSTAINED. Neither affidavit is pertinent to the issues befor~ the Court
in this motion,
The plaintiff's objections to the use of her 1st amended petition is OVERRULED. She also
objected to any documents not complying with TRE 802.J 803. 804 or 901. She did not however specify to what dooum~;~ntsJ if any, shew~ objecting. Her objections, if any, are waived, ·
The only issue n~ised by defendants• motions for summary judgmont is the defense of the statute
of lhnitations. Plaintiff does not deny that ~mit was filed outside the applicable limitations but
asse:rts the filing ts not banned beca11se the "discovery rule'' and because of "frandulent concealmeoth. No authority was cited for either proposition. by plaintiff, but she does oite some
summary judgment evidence.
Thexe appears to be no dispute that suit was filed Outside the applicable statutes of limitation for
ea.oh cause of action. The question before the Court is whether any "discovery role'' or
Hfr~udulent conoea.hnent" have tolled the ru.nning of the statues.
It is clear that the law in Texas is that fraud prevents the tutll'ling of the statute of limitation~ until .
it is discovered or by the exe.rolse of reasonable dilig~nce it might have been discovered.
Ruebeok v. Hunt 176 SW2d 738 (Tex. 1943). 188 EXT. 1:}00 • FAX; (830} 3QJ•OIJ47
211 WEST CoURT STRESY, ROOM ~20 • SSG
Page 536
However:' when a. pE:rson has a right in property, and she clahns fraudulent statements flre made
ooncerning title to the property, w.b,en the public records ~e open to her, she must exercise
reasonable diligence to discover the defect. Exxon Mobil v. Ford, 1 S7 SW3d ~54 (Court of
Appeals: :Beaumont, 2006).
lnformation contained in public reoords coo be ascertained through reasonuble diligence and is
not inherently undiscoverable. Thus a person must exercise reasonable diligence, and Jfhe could
have discovere~ a defect, she is held to ·have known it, and limitations wlll run against her.
Swanson v. Stouffer&. Assoos. [1] 2014 WL 25 22145 (Court of Appeals: AU$tin, 2014).
Although it is not precisely clear what plaintiff is claiming (either exclusive or non-exclusive
acoess to the waterfront) [1] there is no question the precise nature of her title could have been
ascertained from public reoord. Since she did not disooveJ: the defect, if any. she did not exercise
clue diligence. Therefore the applicable statutes of limitations a:ro not tolled, and suit on her
causes of action Is banned,
The defendan~' traditional tnotion for sumwary judgment is GRANTED in all things,
A no..-evidence motion for sununary judgment is inapposite for an issue on which the movant has the burden of proof. Thetefore defendants' no-evidence motion for summazy judgment is
OENIED.
I request that Mr. CUrie prepare an order reflecting thi~ ruling and forward it me for entry, with a
·copy to the other parties. Any objections to the form of the order must be reoeived within one
week of my receipt ofMr~ Cline's proposod ordor.
W.C. Kirkendall
· cc: lJonald Jamela Robert McNiel
Robert Ritter
Page 537
Appendix 3 . Property Listing for 1104 Peggy Lane
(2SCR-II 149)
, .. ,,,
"" Agent Report ~~~~i~.~
Addr: 1104 Peggy Ln Virtual Tour Link: Status: New Class: Single Residential LP: $ $135,000 Area: 2700. Grfd: 4l)2CS !ntSt./Oir: Hwy 46 to Elm -Gr.ove to Pecan Pt to Schley to Peggy Lane SubdMslon: Not in defined subdivision Type: Single Family D ... Seguin City: Zip: 78155 AdSf: ~ Guadalupe CAN#: 00000000000000 "\. ' 0 . .- 2 Block: 0 CB/NCB: 0 til .,. Legal: Part of lot 2, AJ Grabey SUbd Apx Ag~: o "')..7:.,~ . . SizeDist: .124 BR: 2 . \ .:? HBaths. o <!7. t.;• Navarro Isd FBaths: 2 Lv ir 1 Navarro Elementary Builder: D R BaiT Constr: New Middle: Navarro # Garage Sp: 2 · MB 14 LR 14 X26 UR 7 FR 0 soo X10 KT 13 ENO DR 0 BKO xo xo xo xo X4 xo 0 MBth 8 SB 3B 2B 12 0 4B 0 0 0 0 X12 xo xo xo X12 xo X9 xo Utilfty SUppliers: Water: Sewer: Other: Gas: Garbage: Electric: High: High NavaiTO No HOA Name: HOA Fee: Assessments: Sale Sale/Rent: for t .,( V bft T 1 · b ex.~.,... ··;t I Assoc. Fee: Tran . ~ _.. .. -*7- ,. L~~: Mo 'i • [1] \.
Anandals: Pl'Terms: 1ST Loan Info: NA USt Agent: LARRY FURROW Occupancy: VACNT {210) 287 .. 0270 Poss: Ust Offlce: Legacy Group Keller Williams KLWM00 ... {210) 482·3200 CLSFD Contact: css Ph to Show: 210.222·2227 Bonus:
Remarks: Pelfect week·and get away place. New home with all the bells and whistles of a larger home.Home sits on hill and front faces the Guadalupe River. Large living area with 2 master suites, rear entry 2 car garage. Best thing about this place is the owner is willing to cany the paper with very good tenns. Don't walt this place will not lut long.
CMTFB Roof: METAL Mst BR: WLKIN, CLFAN SLAB Wdw: NONE Mst Bth: TSCMB, DBLVN InteriOr: . lLVAR, LDCMB, UTINS, HGHCL
lndusions: CLFNS, WSHCN, DRYCN, MCOVN, STVRN, DISPL, DSHWR, ICMKR, SMKAL [1] ELWTR, GARDR
Watf&Nr: WTRSY, SPnc [1] Exterior Fea: PVFNC, DBLPN TREES Heating; Ht Fuel: CNTRL ELEC 1CNTR ~~:;_._··~Jf.Jh '#~~~~:;.··~::· ·. [1] Roor; Access: Pool/Spa~ CRPT NONE CTILE Lot Impv: Mise: NONE Frpf: I ONE fAMRM
Contract Date: SQFT/Acre: 5ale Trms~ Sell Points: seu Concess: Closing Date: Price per SQFf: Sell Ofc: Agent: Source SQFf Acre:
All measure~ents, taxes, age, & school data are and provided by Prepared By: other sources. Buyer should fndependenUy verify same before relying thereon. LARRY AJRROW - (210) 287..0270 ***Copyright 2005 by SAN ANTONIO BOARD OF REALTORS*** . lfr@swbell.net
Exhibit 8 -1·
Page 149
Appendix 4 New Home Contract for 1.104 Peggy Lane (2SCR-I 200-08)
• • :· j t l I. t . - - - liWWV --v"'-'-NV_,_~ou_v...;..u_.L.....;.I...;_' <2;;.;:U....:..-";:..,;;AA=-.;O;;..;O~IN:_::V~O.::,:Vl.~'i.::..,D .LLO U will Sales Price not P{lyable In paid as follows: (Check applicable boxes befow) 3. SALES ba cash of P9~1on 4. FINANCING: Th$ PRIC~: 1. PARTIES: 2. PRQPERTY: Lot and all other property locate~ 1haraom and (II) all rights, with: ffxfures (I) Improvements, · attached exhibit, t~gether 0 A. THIRD PARlY FINANOfNG: One or mora third party mortgage limited "to: $ Sales Price (Sum of A and B) ........................................................................................... ............. $ ____ 3~r~ti"""OQ~ • ...,.0"'-0 buy fi'orri Seller th€:1 ProP.efW described below. p~rmlts. eaaem~nt~, and cooperative and association memberships. All property sold by tlils contract Is oalled the "Property". A. Cash portion Addition, Oily or 'UQ4 ie~ J 0 sgott - - - - . . . - - (Buyer) and Buyer agre~s to Lane auyar at closing ............................ • : ...... agrees to sell and convey to ·stag~ privileges and appurtenances thereto, lneludlng but not B. Sum of all ffnanclng described below (excluding any loan funding fee of Sales Price payable by o. Insurance or mortgage $ premium) ..................................... , ............................................... (1) Property Approval: If the Property does not s'a!fsly the underwriting lenders• $ (2) Flnanotng ror requirements the loan(s), one box only) (Check Approval: D Tt)lrd . contract and does not rorflnanctng befng approved for Buyer subject Ia not Is subject to contract 0 {a) This the financing described In the altaohed (I:>) This to Buyer being approved lnvolva FHA or VA will t~rmlnate the bamest this contract will be refunded to money and Buyer. Addendum. of Oonalruct!on Completion Financing Condition Party NOTICE: Not For USG For Condominium Transactions or Oloslnge Prior to D R Barz:: PROMULGAT!=D BY THE TEXAS REAL ESTATE (TREC) COMMISSION 2 f)eguin Blool< [1] loan1'un~lng Insurance (excluding any premlvm). fee or mortgage NEW HOME CONTRACT Conatruollon) (Oomplettd of I County [1] . · • AJ Graboy Sul!diyision No . 1 QO code), or.as de!!Crlbad (address/zip 781~5 Guadllu,pe loans Jtnm!ta nann • In . .. of amount the total known as ·' TEI)(SS,_ .135 r 00 I 000 soo, oo 131, . . IU.IUUk (Seller) ;: i ~ i 1 ! financing, Q B. ASSUMPTION: The assumption of the unpaid principal balance of one or more promissory notes described In the attached TREC Loan Assumption Addendum. lXI c. SELLE:~ FINANCIN~: A promissory note from Buyer to Sellar of$ 131,500. oo • secured by vendofs and deed of trust liens, and containing the terms and condlllons described In the attached TREO St;~fler F.lnanclng Addendum. If an owner policy of title lnsura~ce Is furnished, ·suyer shall rumlsh Seller with a mortgagee policy of Utle Insurance, 6. · EARNEST MONEY: Upon execution of this 'Contract by both ~rtles, Buyer shall deposit $.,.,1 ~· o'""o~o.....,. o...,.o..._. ___ _ as earnest money with _Alamo Witle co rr;ana:Ls Hardtenstein , as esorow agen~ at Seguin. Wexas 109 North· Biyer (address). Buyer shall deposit additional earnest money of$ n/a Wlth esorow agent within ___ days after !he effecttve date of this contract. If Buyer falls to deposit. the e~;1rnest ·mo.nay as required by this contract, Buyer will be fn default.
6. TITLE POLICY AND SURVI:Y: A. TITLE POLICY: Seller shall fl.lrnlsh to Buyer at 00 Seller's 0 Buyers expense an owner polloy ot UUa Insurance (Title Polley) Issued by &!A.t!Lllaii.llm<!lolo:....T.;uila..lto!JI:l~a...lc"'-ltoc...._ _________ ,_ ____ _ -:-----:"-:------~-:---:-~-----~-:----:--.(Title Company) In the amount or
B. COMMITMENT: Within 20 days after the TIUa Company reo~lves a copy of this contract. Seller shall furnish to Bu er a <Jommttment ror title standard printed exception as to wate~. aa to exception printed a standard Ttl (7) rights. marital tidelands, beaches, (8) The Buyer In writing. ·be approved by subject .to or as thls cqntraot p.ermltfed by exoepUons otharwlse {6) Reservations or or attar the zoning at or dated Prlo~, Sales the boundary lines, may In area shortages conflicts. as to dlscrepanclaa, printed exception standard (6) The matte~. streams, and related Joss Pr~perty common to the platted subdiVIsion In which the coven~nts Restrictive. (1) · Is located, Polley, Title under the p[ovlsl9l)S of the exceptions: promulgated excllislon·s (Including existing building and following the and or~lnanoes) Buyer against Insuring closing, (2) Property o.r plat of the subdivision In whlc;h the. deed dedication (4) Utility easements created by.'the described 11'1 Paragraph 4. · the finanCing part. of ~s {3) Liens Is located. The standard printed excepUon fQr standoy fees, taxes and ·assessments, create.d encroaohmenta or protrusions, 10 [11] exception amended have the may overlapping Improvements. Buyer, at Buyer's expense, or read, •shortages In area Commitment a at B e s ex ense Ia IQie co les or restrtctlve ~moe , . • . .
KW-000021 Page 200
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1104 ?aqgy La~Et Seguin. 'l'x 791!55 Conlract Con~mlng Page 2 ofll 02-13·011 (Addrau• of Proparty)
D. OBJECTIONS: Buyer ma~ disclosed obJect In wr!Hng to defects, exceptions. or enoultibranoea to ttue: E. TITLE NOTICES: on the c. SURVEY:·The survey must be made by a registered professional land surveyor eocaptabla to tho Title Company {3} Within (2) MANDA'rOIW OWNERS' f\SSOCIATION MEMBERSHIP: The Wllhln PropertyO Is lXlls not subjeot to mandatory 0 tEl {1) and any fender, (Check one boX" only) evldenornq exceptions In the Commitment (Exception Documents) other than th~ slandard prJnted exoe·puons. Seller authorizes the Title Company to deliver the Commitment and Exception Documents to Beyer at Buyer's an abstract of title .oovar!ng the Property Seller Is not obligated to Incur any expanse, Se.llar shall oure the timely objeollons of Buyer or any third party lender Within 16 days after Seller receives lha obJec;llo.ns and the Closing Date will be extended as necessary. If objaotlons are not cured within such 15 day period, this contract will terminate and the earnest money will be refunded to Buyer unless Buyer waives the objections. 0 (2) Wlthfn 6A(1) through (7) above; dlso!osed In the Commitment other than Items M(1) through {8) above; or which prohibit fhe following use or aollvlly: - ....... - . - - - - - - - - - - - - - Buyer must oblect not later than (I) the closing oate or (II) Commitment, Exception Documents. and the survey, whichever ls.earl!ar, euy~ts failure to obJect within the time allowed will constitute a waiver of Buyets right to oblect; exaept that the requirements In Schedule c of the Commitment are not waived, Provided (1) ABS~RACT OR TITLE POLICY: Broker advises Buyer to have survey other than ltams the speolfied tlma, the time for delivery will be automatically aidendad up to 1G days or the Closing Oafe, whichever Is earlier. addres$ shown In Paragraph 21 •. 1f the Oommttment and Exception Documents are not delivered to Buyer within covenants and documents covenants and dedicatory Instrument may be obtained from the county clerk. You are obligated· to pay assessments to th~ owners' association, The amount of the assessments Is sub}aot to community have bean or Will be recorded In the Real Caples of the restrlollve ProRerty Records or the county In which 1he Prop~rty Is looated, the resiQentlal communlly In which the Property Is looated, you are obligated to ·be a member of the owner$' association, Restrictive covenants governing the use a·nd occupancy pf by an attorney cif Buyer's choloe due to the time limitations on auyerq mandatory roembershlp In an owners• rigHt to object. memb~rshlp lil an that, as a purohaser of property In owners' association. If the PropertY- Is subject to by an attorney of association, Seller notifies Buyer under §5,012 [1] Texas Property Code, furnished with or obtain a Title P91!oy. tr e><ammed PQI!cy Is furnished, the Commitment should be promptly reviewed auyer•G selaetlon. or Buyer should be ~ Till~ lh~ Property and a dedicatory Instrument gQvernlng the establlahment [1] malntenance 1 and operatlcm of this resld~ntlal exl$tlng survey or the ProP.eftY anc,f El Re$1dentlal Real Property Seller's expeh!36 of Insurance (Affidavit). If Affidavit promulgated by the Texas Department wlfhln the time prescribed, ·auyer shall obtain a new survey at lha date of actual receipt or Is earlier. Buyer Is and Title company Seller's deemed to receive the. survey on the data ~p_eciRed In not Buyer. this paragraph, whichever. sh~ll furnish a new survey to no later than a days prior to Closing Date, at Buyer's expense. the existing survey or Artldavltls Bt:JYer's al 121 Sellets 0 to expense Closing acceptable to Title Company or Buyar'slendar Buyer snail obtain a new If Seller falls to furnish tha Date. eurv~y than ~ days prtor ext~Un~ surv'e~ later no or AffiDavit · Buyer shall obtain a new survey oontraot, days· after the effec\lve d&te of this date of the effective a~er Se.lleta 1hle contract, expense. days at Seller, shall furnish to· Buyer days after the effeollv~ dat~ Qf this SaUer contract, • . . th~ days after Buyer receives · · change, Your failure to pay the asses$ments could resullln a lien on and the foreclosure of the Property, It I. Buyer Ia concflrneg abpul thes~:J matters, the TREO promulgated Addendum. far Property SubjecE to M~ndatory Membership tn an owner's Association should be used, I (3) STATUTORY TAX DISTRIOTS: .1.~ the Property ffl situated In a utlllty or other statutorily created district I providing wate.r, sewer, drainage, or fiood control faolllllas end sarvlces, Chapter 49, Texaa Wa~er Code, requires Seller to deliver and Buyer to sign lhe statutory nolloe relaUng to the tax rate, bonded lndebte~nes~, or standb~ fe~ of the district prior to flnat execution or thls contract, . (4) TIDE WATERS: If the Property. abuts the tidallY" lnfiu~nced waters of the st~te, ~33. 136, Texas Natural Resources Code, req·ulres ~ .ootlc& regarding coastal ar~a p,roJl_erly to be Include~ (n tfi~ contract. An adde.n~um containing the riotloe pro~nutgated by TREO ar required by the partiEls mll$t b~ usaq, (6),1\NNEXATION: If the Property ls located 0\Jtslde the limits of ta municipality, Seller noUHe$ Buyer under. §5, 011, Texas Propecy Code, that the Properly may now or later be Included In the extraterrlt!Jrlal jurrs·dtotron of ~ municipality and may nQW or later be subJect to annexation by the munlclpallly, each municipality maintains a map that depicts Its boundaries ancf exlratarrltorlai.Jurlsdlctlon, To datefmfne If lh~ Ptoperly Is Iooa(ed wl.thln a municipality's extraterritorial Jurisdiction or Is flkety to be located within a· munlciJ)allty'a extraterritorial jurlsdlc\lon, contaot all munlolpalfiles located ln·tha g·eneraf·proxlmlty of the Property tor further Information. Initialed· for ldentlnoatlon by Bu r _ and Seller~-==-r -.J,h"l.<!r- TREO NO. 24-6 (TAR·1·ao4} 2~13·06 Page 2 of9 Produced wllh ZlpFormm by Re Form•Nel, L~C 18026 Flltoen MUs Road, Clln!on Towne hlp, Mlcfllgan ~803~ WYr« z!Pform com DR Barr
KW..000022 Page 201
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ll.O if. li'eggy Lantll .SfXIUin; ~x 76155 Conir11ciConcomlnQ Pagt~3of9 02-13.06 {~$of Propeny) . (6) PROPERTY LOC,LWEO IN A Cfu1'HFIGA'fE\1 SERVICE AREA OF A U'riLil'Y SERViCE PROVIDER: NoUce roqulred by §13.257, Wewr Ood&: Th~ 1'\ml property, dtistrlbqd In Paragraph 2, that.you am abQut to purchasa·may be located rna cei8~ water or sewer service area, which Is authorized 6y law to provlda water or sewer service lo UtB )>roperties n·lhCI ceJHRc:~ted area, If your propaJ:tY 1~ loaatad ln a oortlfiOi\led arenthere !llEIY ba special costa or chatgns tllat you will be requlr(Jd to pay befo.~ you oan reoolll~ water or sewer $ftrVlca. lhere may be .a pmiod requhd ro conofruolllnee or o!h~r faclllUas n~ce~sary to provide water or sewer ~arvlce to your prOl'>MY .. Yoo .ere edvlaed to datermlna If lhd property Is In a tmi11flcated area and ccintaot the uHlllV saJVIce pro~r l.a de~Wnfne the costlt1at you WlH be tllt!UIN<I ro pay an<f the period, If $y, that Is required to provide WilWr (It S\\11\'ef seNice to your f>!'Ope~y. The undersigned a~er hereby ~cknowladges reoalpt of \he roreg~ M&eat or hefore lha execuUoo o( a blndlr!9 tonlract for tha purchase of the teal property deacrlbad In P~~1®h 2 c;q at Ol~lng of pur~lta~e of the real property. (7) PUI;ILIC IMPROVEMENT DISTRICTS: tf 1b& Propt)fty fs In a publlo Improvement district, §5,014, Property Codea requires Seller to noury ~ ~ full.oWS! As e purchaser of lhls patce! ()f real pro}>!rty you aM obligated to pay an assesemant to a rn~alHY. or county for an Improvement project undertaken by a pUbl!o lrilproyament dlstrlot uncfer ~ar S'72, local Government Code. The Ecisessmenl may be due annually ar In parlodla lnstellmenlJ. M(h~ PR~JIM. oonc~nhlg. Ute emount. of the SS$essmmt Bnd lhe cJu~ da.tea or· that assessment may be: obtain&d tom ~ mttnftlpalfty or Wr.h'lf1 kivyfng ftra asu-SSMellt. lrK! amount of the aasessmanl$ ls subjr,ct th• d'tooga-. Your fall~ue ti> ~a1- Ute as~r~U*!t.& tami nlSGJft.ln <~: ~n on and the foreclosure of your propt'tt.t;(..
7, PROPERTY CONDITION: A. ACCESSa INSPEOT,ONS ANO !.ITIUT1e.s: :S~et$0011 pmnl! ~er atJd Buyeh ~ att&ss fo lite P~eJIY tOO Pm~rtv In Hs present CMdllkm; provlded B. ACCEPTANCE Ot= PROPERTY CON.mnoN: iltWer aCCflpfn fft~ bY t.spet(OJs sE!teded by Prop:erty lfbtansml b'/ TREC or olharwlsa permlUad by Buy-enmd at reasonable Hmas. Buyer may hava lfle fi'lsp.achons. Sefl{lr tr~l(9;\ !a· faw• snalJ pay tor tumlng em h•sP.aoUons. for utlUUa~ exrsttng Seller, at Sellars expense [1] shall ~-~~ling speclflc repai1s antf treatments; and make the folkmfng lmprovemenl8: ________________________ _ F. COMPtE'J'Itm OF REPAJRSP TREAT~ §~.NO IMPROVEMENTS: Unless otherwise agreed Writing, In
E. lENDER REQUJRED REPAIRS ANill!RS\.ENTS: In Unlaaq ql~IWISe agt<!ecl Mllher wriUng, party m C. WARRANTU!s: Exoepl as e>!prtlM~ :wtt Q, ffl "ds oonllact. a sepaata wilting, or pitWidad hY Jiffl. S8ller D. INSULATION: As required by Fe®rcifTI'ada· CommlssWn ReguraflOM, the' fnl<ltmation ralallitg fO tlle lnsa!lai¥oo d'o net afl}ea AN ~EilmiR..Y.a&lel me ~~diJd ey will be extehdad up to 15 days [1] and frpprovement& (Work) prlor IQ autllorlzeo by law to provide suoh Warn. M Buy.Us end the earnest m.on·ey will ai1y lmnsterabfe warcanlkru rec(lfvatf Buyers eJqJena&. Jt Geller falf:s lo complafa any agreed Wmk Bu~r. ff~oaJStt.t(!{f8wKfsr r~ulred repafr1i and treatments exceeds 6% or lhe Sales ~ ifuYerm.a~ ~fhlst<JM'CdRbltlamest or treatmen~, thJ~ c~nfmat·wlll money_ wl~ b.e r~fundsd 1a B~;Jyer. ~JemmTed rQ the manufacturer Of IJw Jnsutaffon. Sellief 8ilali oomplclelelt sgro.ecl r~ mtmen~, tr~ '9IJI!Iilb IIJiJiudeu lreatmef!l far wood destroying Insects. If ~rf:t4 to ~'f Ia- pay. Cor too ~mer ret~iRFe ~ Rlr render requftad ... the paitleS· ~Jactfun, by Seller w!lh respect to the Wf,lrk .will be transferred to· Buy9r at terminate If neo~. to oompte!e Work. the Cf0$Jng Dale. All ~In~ or or .ara pernon'l who- Closing lhs to olh61Wl~e. prJ b~ parrormad ~ must W"tk may fJ(IImns must be o'b'lalnetrl .aTI'\f. DatGa Buyer lk:anood reqo'ire~ cSo so st Data Seller ftom recelv~ rehnbt~nl.\nE and dQfilng. The as shown In 1he attached 0 (1) as lli1 (2) spacl~ follows: at.tlie Property ~ (ched< on tv manufatiurer makes no other express ~lgn to Buyar at closing aH asslgnsbla warranties. be lns1alfed or to warmnfl~ l{lstalled In llie l!fwll one box betaw} hYip~ &i!lia!t · a} ExtertorwaUs of Improved Hving~tnsulafecJwlth .e) a slab founcfatkm: ~in ill'~ G) hmilated with <~Wn.'f: livln9 to IOSulaUon Insulated Wlih Ftolllrfi d) m&tifaled• _ ~imrutoteiiaroos.: to SWlmg .are51Cf0t·sppUm.t oJlntPf\)VOO a ffilcltnMs With_:_ b) Walls ln other area$ of the homtr.lnsula.ted thl~11n iJI· lnsu1alllm to a w (hlo)c®w a t\1 a llllo1mess of to a thfr.;l<ness of lm;ulallon ot. Jll!Wlstlon or . mchn whK:bytaH;ls·~·R-Vafue ~lildlBa~w~1jfeldi RN.elue of an .t a-n"'=R~.v~at=-ue-o""='r--------. y-.:-latd=s,...· R~Value lnnhes whf'c'":'h .... wii!Cb ~tt iMhes rnches,whl'cll·yfetdioo of or an R-Var~ -----------' ~ron to . :Slow Rgllsd . n-3? s,..u • . •
TREC: NO. 24-6 ~tlgllJf.ol9" DRII.lrr *53 KW~000023 Page 202
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• ·---:.Ei.o:.t Jl.fl~gw· l!iH:·rua. -~" Wx fi81~~8i Contract Goncom!J\g...__ , . WU{)'!It4!ofill~ llltl.$UI£ {~tklttua•of;IPml)a!l~ll Col. ENVIRONMENTAl. MATIERS: Buyer m. ~diJ.Intldl11\atr tl~&.I100Gef:l~l)l ~trwl:ltllinldi.E 11 toXI~: ~~n.~~$1Pi.lila!Lq~01Gt! asbestos and waste& or ot11er envlronm~al~ or the presenM.!:.of a thnli~t~ned or endangaJed s~ cJ~ Ito habitat may affect Buyer's lntendOO. use of tfte PruJ!My. tf fiu¥er m r.onoemed aboot these ·matfefBi. sn. addendum promu.lgatetl by TREC or requJtiVJ.~tf'~ JH!rl(ea ahookl be used. , H. SEW:R.'S DISCLOSURE: Ext.ept ® oi.YI~~a ~ckmd' In this' r;ontrMt;, Selfo;Jt· tlas no koowwd~ ~ tha foUowlng: (1) any 11o.odlng of !he Property wfllcn has-:liail:C~< matenm adv'efS.& ~ffiwl: QA Ut& 11M (If too Prop61ty~ (2) ~ny pending or threatenF.!d IIHge!lm. t1"~1ln. <'f ~W .~l!~ntaffaclittg Utt- PrQpoettf. (3) any environmental hazards CJr con<i~s ~ affeclfng tim Pro.pellyi (4) any dompsltal landfill, or undergrooo:i ~OlOOfl~.'ni'fN or pl\Wklt(s.ty 1o.aat00 on the Pt'Operty; (6} any wetlands~ as defined byfedarai ers!atebW orregulalion, affeclJnu the Property;. or · (6} any threstanad or endangered epad~lH»'~~itat~IT£1 fll~ PropMy •. t. RESIDENTIAL SERVICE CONTRACT·S': B111M may pUMbase a lll~dan\!a.l $a!Vloo conlfflct"t'tom a ~nual service oompany licensed by TREC. rt B~·~flases a m!dantfat ·~ oonflact; Seifer shalf relnilul'l99 Buyer at Closing ·tor fh~ ooat '(J[ th$: t~rdentflil~ sar.vfo:l'dJ (Qrt'*~ ttl. 131!1r at~ulll} nliW ~xv.ae.U~ ; nbs . Buye-r. shoolii!fBIIIGMhlh'\W r.e®d~~t{m!IS~I!\tfwGlQiilfti~d fQ~ H1Jftee" . . llllf Wll~l· El)((lluslona ~nd llmll:aflons. Tha purCha.$.li•I.'JJ'a.M»i~mi\\!sel!ill&.aHw~i'ttQdW.•Rilh.Siiniia·c4!f.anrp~ be purohaatJd from vsrloua compan'k>.$-.~M.i2edffQll~;I'J~ntMtr.~~a. C, B~OKERS' FEES: All obllgaUons of lf"l~. partli?.a: ~· ~~!l¥1't'n3rnlt. ~f lltmoli:&J~~: Oftll$ eJ:e ~l!lli'9Dn~ rQ; ~ac;nll:a; V«rilfam '· t. agreements. 9. ClOSING: A.. The cfo.alng of the sate will be on or b4\tS~ tW 22 1 ~~ 'Cf wltfiin 7 dayufter ob]ecUons mads under ParagrPph Glllt'r\W~ ~ oumd orw.a'll1.~tl. ~lr.hfwer date ia ·latt~r {C'!o!MD Dam). n ellhar party falls to close the sale l!llf ·lt\lll! IOI:®inn:r Oat~. til& oon..a6il'st.tlfln.g f'irty m.v ~JXe!dso the r.emedlas (X)ntalned in Pamgraph 16. a. At closing: ,. (1) Seller shall ~acute and deliver a. ~~~Olf.all~l\ty <JOO!I (llbfl~l!J MB to~ f'W~ fu auy.ar and 'i!i®W~Ptg ; no additional exceptions to.thoS& ~llftaQ!In.Pg.mgJeph 6-Md fumWJ laiC smfRDM1s 01 ~ SbO'IIiiiJ,Q no delinquent taxe& <m tha Proparty\ f· {2}Buyenhall pay the Sai0$.Pdoeln~~sccaprabks tolltees®Wa~t; ! : i. (3) Seller antf auyer 1ihaU execute ~nd d$1~ Mt nollces_ stab!menfs, csen~ affl<fa'wff~ rerease~ roan d0¢Umanls and ather docUmeJlts: ~ (i tflem by lftX~ OOijfrad. the ~mmtlmafit « faW fi~SWV for Ute closing .of tha sale and tho ls.suam:e·aftba'({Ue: P<JIU;y. . · I c. Un~s e)(pressly' prohibited by wrlttim ~.en.t. Seller may cootinue kt WG\V the ~ mtd ~ r negollata and accapl bact< up offett •. ' ·i D. All oov.en!li'lts, repreMntatlons anti watrantl$iUn~~coo'trad:si1W1ve ~.
10. POSSESS10N: Seller shaD deUv~ ta Slri~r If~~ of t!Ae P1MI.~ R~ ~ ~11 « ~ ~~{, ordinary ~ear and tear excepted: IBl upon cTiHibmunnlfUndlnlg a QW!IIIii311U) fin ~ ~ resi~~l ~ ifnlllm . promulgat.Bd by TREC or other wcltten f~I'Sq)lWby the patti~ .. Any ~oo by BlzyM-b'GIIO!®rilJ ottJy Seller after closing whk:h Is not authorfzed l).w m w.dlU!fulllliM 'ldll! ~ a ~aney at su~~ ft'dla~ :· be~n the.partta~. Consult your Jns~aemt prin:rto Chang& of owneralltJ.d ~~bet'~ lnsuramte covmqe may frflrml&d et!·~. The abtenc& of tr written laau or epproptfatf.lnsuranclff COV6lSU& may axpo;s Uto: padr$(0~).:$~ ·
11 .. SPECfAL PROvtSfONO~ Oll$erl: (lnry ~ ~ and llu$1'Mss cfefa!IS ~i~abte to the sata 1REC rute\l prohii!U bnseei tom ad4rng fi~' ~~.cri'OustmJS$ de~ torwtttth a coobathtd~nlfumr taMe ur o!Mr ' ; rarmtJ.uG. ~mpromurgatsd b1 TRECw~oase.) i· i l l
-~CNb.2i6 lnfflalad for ldenttnoatlon by auver (TAR .. 1604) 2 .. 13·06 Pa9e4 oi9 f'nxhJOll.d wllh ~pFoontllby REf DllBur
KW~000024 Page 203
• • ~lHltl -··----------~liJ-4 lt'tl\ggy l.rme contl'ael concomrng ______ . __ ..tlhtJp.iit\~~-~·· _.·;u=g.._._.7~.:~~S~15~l,____ ~\lloill!~~-¥~·~) 12. aerrLEMEN! AND OTH!SR. J:XPENSEi~ A. TI1s followlrl_g expart!lO~ muat bo paid r.J.. ~a~ "(Jl'.t-: ·rc C\'o~tng: (1) Exp~nses paya~le by Sellar-{Sellet"tt;E'xpun~): (a) Release$· of existing liens, lnol\Jdllg prepttyment pal\llllles and reoordlng fees: rete~ of $eller't loan llablllf:y; J~ statements or oerUfi~i pteparatlon of doedi one-half of escrow fee; anti other e><pon$eB payable by Sellar under this conb'att (b) Seller shall also pay an amount nbl to &~ $ nla to be appllmf In 11te tolfowlng order; Buyer-s Expenses which Buyarls pro1~ from paying by -FHA, VA, T~ Vetf.lrans Housing Assistance Program or otht'll' governm~ntQ!; ~~ ~ow:ams, and tlttm to oYM:i' l:luyeta e~nws <1$ allowad by Hie lender. {2) i:xpensea payapte by Buyer (BuyGfs ~): {~) Loan orlglnat.lon, discount, bey-4ol~i\. .an~ oommUrn&nt fe$$ {l·onn Fees). (b) Apprata~l fee&; lo~m application ~ .:Wd KeporW; P:~P.Sratlun of loan doosmenta; Jrd"6rest en the noloo from dale of dlobursetnent to oon mo~ ~t»Gr !0 aaw~r uf first monthly p~~; revurdlng fees; ooples ol easemahls and reslrfoHons; n~• \Wa poncy with .entlmsemenls req~ ~Y temter, twn-relaled lnspMIIO!\ teas: photos: amortlzliti<m sC6eeltOOa; l1fl6:-haJf cJ ~r~ re$; all prepafd trems. fl\llliJdtag required premlume for f!OQd and lia:rar.d li'J.Wtmtq:eov re$l'.J\'e dGf!OOtls ((]{ lmur~e, ad valorem faxes 21Jd special govemmenlal asaesame~: ·iilaJ; complfaqf;e l'nspr&dfoo; tot1Jtf11 ~ repair ~~ettioo; undetwf!llng rea; wire transfer. f$j: i:t~ rnclden~ fr:'t aa\y l~an; and ofiwr expenses ~yabte f1t Bu.y~r undor lflls C6t\traol. . B. Buyer shall pay Private Mortgage lnsul~lce·:pcemfum (?Mi}~ VA wan Fr.mding Fee, or FtfA Moogage fnmmJ~ Premlwn (MIP} -aa required by IM len®~ c. If any e>rpense exceeds an amount ~ ~d In ihls contr.aet for such e}l)>ellSa to be prdd by a ~rty. that party may tetmlnata this contr®t unt\i~.hl·~ party agr~ io·pay well exce;e. Buyet nmy not pay charg~ .and feeti expressly j)rbhlblled by FHA- ·v~ T~Vetarana Hoostng A~sfstance Program or olher gawmmental loan program regulaUons.
1~. PRORATIONS AND ROLt.aACKTAXE.S~ A.· PRORATIONS: Ta"llea for the current-~~ -~enanoe f(f.&S., ·»ssassments, dues alld roors vnl ·ba prOT8led through 1he Clos!Jlg Dala, The tax ~aU® may be calculaled taklng fnta Gonslderatlon any change .lo eKemptlans that will affect the current~ tax~. Jrtaxes for the current year vary from the ~mount prorated at closing, the parties ahf!ll adjust the p~s Ylhoo tax s(al.emenfs for tho current year are available. If Wli!S. are not patd at or prior to closing, Buyer wlU.be obtrgat-ad lo pay wxes fur the current year. B. ROLLEIACK TAXES: If Seller'6 changa. rn ·u.se at lhe Property prior to cl04lng or denial or~ special use valuation on the Property results In additional W.XaSJ pendlles or lnler~t {J.\Gae~smenl!i) tor periods prior to clo$lngl the Assassrnents. Wlll be the obUgaUon of S'elfer. ~-allons Imposed by thls par4tgraph wlll sur\tlve cloiing, 14, CASUAL TV LOSS: If any part of th& Pr.opEd] "!;s dcltnaged or destroyed by ffr'e or other casualty after the effective date of this Q6ntraata Seller llhall reatora.lha ~to Us prevlous.condlUon as soon as reasonabl~ po!Sslble, but In i any e-vent by the Closing Dale. If Selter filHs ·~a do so dtJeto factors beyond' Sofl&,-.8 control, Bll}'ar·may (a) i I tennlnate this oonttact and tha aarn~ul f1t0111!¥ IPllt1 b:a ~funded to Buyer {b) extend the· time fpr performance up to 15 dey a snd the Closing Date wm b& ext~dedxa MOO&Sary or (o) aonept the. Property rn 1\s dam aped condiUan with an anstgnment of tnsuran~ proc~G end~ dedit ftom Sbller .at oloslng In the emount of iha deducllble under «te (n!~r.snci!S poiicy. &N-ecs (Jbfigatlcrt$ trmlttf.bir.,varagmph are lndapendent of eny other obiTgatrons Df SaBer r under We tonb~cf. . 15~ Dt:PAUL.T: lfBuyer-faH$ to OOPIPI1wftkW.IsCG~JlhWi, Buyer will b~ Jn default, and Selle( may (a) enforce fij)eclfia i perf<ltmance_sook su® ~ 1etfef ~ vmv ~ ~dided by 1'1\V, or bolh, or {b) termlnata this contract end rec$1ve I the eamesc money U· lfquJdafed da~. ~ r$a5lng botll parties from this oontract. lti due lC1 fattots I uayan<l &!ll'i!ls ·confrof~ Selrtlr ~ witi~ 1M il\1~:& tA!owed to makG any non-casually repair$ or delfver tha ' ! Commllment. ot aurveyl II requfrod of ~G«l. so.vanrnay {a} extend the lime for performance up 1o 16. days ~nd tOO Closing Date wru be extended as neo~a~ U.tl ~~)J tau.tWa: ·aw£i ®llttwll ~ ~ .!flihlt i&~y ~I'! ~ot! tt~ earnest money. If Seller falls to comply wULMI\l$l1cmii'M~ lbr:aJW ~ ~.~.. ~'liln t9 arn ~ :lllftQ m!litfll!' may (a) enfotca specific performance, seek:mmfu~J!Ir!Eifli!'S~~§l~li!l~~-~~~•!d!Jifjib•ilnltli$ this oonlra~t and receive the eamest mon~,tt\"IM~/~tr.g~-~~ffltiis~ctt. 16. MEDIATION: It Js tha potloy of the Slate ati'l!"~~\t~Hm~~tT~~~~--l';ilb.'cihami!a•n~ resolution procat;furP..s such as medlaUon.~!t.i·~~lleii!\Wq<l!!ilY•~\tfi!l~~v~·:sJ!Illl~d~l.lJ~~611llfkl lhls contract which Is not resolved fJ.lf<Jl~lh frnlimlen ~i~~~t~ I! 'k!!U! D 'R&!1 ~Qit llrt& ~~~ I;)4J t~ mulhl~~ clccepfabla madfatlon service or , vl ~:~ lite·![Nlltii$ lo the mediation wall bast the madtatlon toots ~qually. Thfs m .s.~ . ultabfe ralkiffrom a cou1f. of corn paragraph doas ntlliJleclude a tent unsdklUiln.
Initialed for ldentlfiontlon by Buyer __ 9r.:d Setter TREG NO. 24 . ..S (TAR·1604) 2-13·06 Page.5 ~9
J<W..()00025 Page 204 •
• ------~--·----~~~~----~---------------------------~ .Uiti;¥ ~ ~nlZi! ~llb b "i·fUS'$ COntrettCon!:<fflllrig IF'~!!C$il\l'& lfl-'-.~~00 ~'5VdP.~ •17 • .J\TTORNF.'Y'S Fla'ES: Tho pr&vaJJI/Ig P~.\V ·~,~~~era- ''Gif~ ro ~lsi CIMtrtN:l1~ ~liltla~ i.!1l ~iro:\/Eit (OOsonabl& altorney'a ft'lea and all <lost!i oftl'JtlJ 'Jli&~Mding looUnllt1 by tho prav.altmg ~r(y.
18, ESCROW: A. ESCROW: Thl!t escrow a,qenl' Is not {i) ·a pgn.y lll1hfs wntnilllil anti d'~ nof ha'ie Uab!Uty ror tfla· perta~nwn~ or nonperf\ll'mal\Ce of any party to lhls oonlrad.. ·00 fiabla· (or it'ltsrent oo tbe e~me.'St money and (6\)IWW:P ror the lOss of any earnest money caused by·Ut~. ~Ef.Of ~my firuuwraJ lr\$l~ltnfan rn whl<lh Uta eamm ro.owr.1 hM rreen depoillleli unless the floanclallnoY{l!tloo l.:s;~'ila ascrow·a~t B. EXPENSI:S; At c!oslllg, Ute aarnes\.tll'.'II\&W must; fl~. i}JiJPII$1:11 ili~ti' tltr. Qt4W ~lb1 tll.aM:t »lllWllllfnlt,, mana lbl lJu~s, Expenses ~nd any excess refunded tOitllil)liUtll'fhD; c1L1sli!GJ lb'ei'WI\fl, eaer.GWJ Bgj91\'·mravr r.eii)UI\:Eit WilllltJmlatt c:Jtii.CnJ¥1ilitll ~l<penses Incurred on ~ehalf or t~a paflleS;attd!alwrllr~m~lilllttGr~frU~1111~'aflG~~~tlQIJ!lil~l'llormlliRI1flrtl!H,. c. DEMAND: Upon 1ermlnallon of this tonti'Mtl. allfiell' ~JiW lllr< m~ Wlm\v'..U mll!W ~ndl m ~~~ mfi eami!Slt
money 19 eaoh party and H1e parties ttl\'slll Q)(et!lJla; ~U111Wlgrudi!1 Qf tltli' oel!a~ i!IRUI ~li»W ~ml!! tro U\m1 aaur.oQ).vrt agenJ. If either party falls to execute U\&nalQe.ae'j,Gitl'idh'l\lfllliWmawrntiltl!>at~riltum!dlmtQfldl!iilJW!IMMl\~WIUW~mtifiJm· the earnest money. lf only ona par!tm~e:s.wlilfum~ilMI'illl'nrlli'ltl~ISM'~Inm~awr.mvtqanannalllpr~Jmptlw provldo a copy of the dam and· to lht1 Uflet ~\If. Jf es4lql\W agent dfles n(ll r~ve w11ften Clb~ f(j the demand from the other parfy wlthln 15 ~s".~uow agen6 rooy fifgllt~ the \W!mstr:nomw tOll¥!&.~~ demand radttced by the amount of unpaldl~ rntum~d oo b~traff cf llie pany 1~M11g the~ tJWt~ and ei!C(OW agent may ~y the same: to tha· trecitoJs. ff esm:ow agent OOmJllfe.s Villh lha pc~ of thfu paragraph, eaoh party hereby releaao$'. esru:ow. "genU nt~m raiR adom'w cfafms relat~d to the ~JJR:at of tho earnest money. D. DAMAGES: Any party who wrongfuUy &lli;·ot·~'laes ta srgn a reteas6 am:eptabfa to tlle esoreytr agent wfthfn days of recetpt of ihe request will b$ r•to tJva cthor pa1ty for liquidated damages of three 11mes the amount of U1a ~mast mqno.y. e. NOTtCES: Escrow .agant's notiCes Vt"W bB eDWm wl\en sent fn CQITlpfiance wUh Parauraph 21. Motlca of objection to the demand wm ba deemed~~ upon raeelpt by escrow agent.
1$, JmPRE.SeNTA'TJO'NS! Sefier reprooent'!l ~.iii llftm Clostng Dale there will be no llerts, 1\Ssessmehts, or sacurlly IJlfetesls agatn~f lh~ Property which will ~ b!t~ed ouf ol the salas proceeds. U any repnasenfaJlon of sener hi thfs conlracll$ untrue on the Closing D9te. Sefltlr.wim~alrn~taf:tl~.
20. fEDERAL TAX REQUIREMENTS: If S~rar. l!i. ~;*fl.:relgn ~t:!idlVI\~ £IS: 11119tihad ~ a!SJ~I~~Illn lll\WI, 11Jll'lr $'ellla!T bill3i ~ deliver an aftkl~lt to Buyer Uta! Sellerli¥ oot,_a,tt~ par.sGtM\.wtl'lmr.nl!llli!fU stlalllwUM~IiHtmllllllt~sn!UJjlrmll:HUb'. an amount aufflclent to comply with a~~ tax· tmw· a111a ~m.t~&lr tflnt: sann.e w• fl~AI! tm~l!laft ftr~UI3~t &-~will:~ together with appropriate tax ronns. lntamaUI.G'!MtiU&t S'BWI~61•ttmiiiiltll!!lll!!: r~l'tJ!IfllG! flll~twwrla'$rrn t:ep~r.t'$11f cturM~ l't11 excess 9f ef>*lcllled 001ounlsls recelvi!tlfn.th&ifumWMtlbn.
21. NOTICES: AU nollc:$S front one party ~ lfie. ctl'ler must bet In wrltktg and are efteetiva wfmn mailed to, hand·dellverod at, ~r transmitted by faoslrolle orCJTecu·onla (roll$mltsfon 11$ foll~v$: I ' .i ~ Toauyer To~eller l. at: ~h I Jg;m;!.tq Penn ! J(tl t SS ::fEetB-Du st.l?k~ I ~ ~troN c tJ 1 l9.: ljf~Z!-Z., ~~guin. Wflxas 191S5 I I ·relepl1ona: C70'Zl 52!i! ... 3527 rflUiil.mUe:. __________ _ Facsimile: _____ _ e.n1all! __ __.,.....__~----
E-mall: *56 KW-000026 Page 205 •
• --------yib4_"P.,...e_g_gy~La-n~--------- · tt$Ni¥h "lg '79155 Pagn7Qf9 02-1$-00 Cornfi!l:l.CtJr.~ar"lng_ (AtJ&e.u or Property) . · 2:?. AG~SEtt?eNr Of: PARTIF.S: ·n,T9 nanfr,oot r.oo!llfmr tha Etnllr(\ s~re(!mtmt of lht=~ parthm and cmnnof be ctmnged except by their written egreemant. Addanda Whlth :are a part ot lhftl r.ontracl sre (CheOf( all applicable boxeB): 0 Addendum for "Bt4ck-Up'' Oonlroot
0 Third Party financing Condition Addandum lit Sell or Financing Addendum 0 Environmental A.s$es&ment, Threatened 0\' Endangered Specles and WetlandS Addendum 0 Addendum rar COe!Sbll Area f1roperly [J Addendum for Property Subject to Mandatory Membership In an Owners' Asaoolallon IJ Buyer's Tamj>orary Residential Lease 0 Addendum fbr Property LQOated Seaward of the Gulf ln[raooastal WateJWay Q Addendum for Sale of Other Property· b':J 0 OIMr(lmt}: - - - - - - - - BUy&r . 23, TERMIAAi10N OP110N: For nom!Qal wn.~\. tf~ t~tJ~.oi'Wbk:h ls 1\emby admcwlledj!ad ~'I S'alktr, and Buyafs agreament b1pay Seller$ (()ptlonfee)vdWn2.d~~thaeffBotNed'a'!eof · this contract, Sellar grants Buyer the ~lid ~ to tem~!natB \blti wntmct by sMng no~ (If tsnn~1•to days after the eff~qbl!; ~~ tbls c~ If no tJo.1lar amount Is stated ;s U~ OpDI:In F$9 Sellar wtlhln or If Buyer falls topsy the OpHon F~ wittlbbe~J!~t'$alt ·fll'fo pa~FV>h wiD not.ba a pa« off.llfi; OIMbatt and Buyer shafl not have the unreslri~ted ri{J.hr lj:t ~haite tills oonlta!il tf Buyer QWea noUoo of term1nal!On ~ ihe lime praacribed, thB Option Fee wHI nnt be.~ JKrwe~. ~1 ear~l tl'~Gl\&y Witt .\tij raTull®d w ~ TOO OpUon Faa 0 win 0 wlll not be oredW fu· lfre'· sa~ PI:~ ilt ~'1\lll. ~$ trr. ~~ fit.! ~ br ~ pa""graph ftnd afrl~t1 compllanoo wlltr'Wl&:fUM.·fbr.·pGif:um~n~nr,reqp~tKi.
24. CONSULT AN ATI'ORNI:Y: Real. est1ite: lkmttsae!l; «l!lloliDmV. g)~~ llt~n:~H iillllVflli0l. etlatliJl lOOJ$ ~.IO®Illffl!~:r CAREFULLY. II you do not underetand lha atreae.~t·tfife: oo~nam( ~~nawlK~Illaltlllrmq, IIIEf(O;IRE afll!J~Illr@J. Buyer's &lllle(s AUam!fJb;:. ____________ _
Attorney Is : - - - - - - - - - - - - Talepl!on&: Tereptrone:
I I. . FaeafmiT&:: Faco!mff~
E-i'Aalt I E-.ma!~--
*57 KWw000027 Page 206
• • I(!JI)tW - - - - - - - 1104 Pc.ggy ~tm&~ Saqu;_n r "lfx 7615$ Conlr~ ~aoomlno,..._ __ _,_._, {Mifl\lU of PJ'OPorly)
Thi-s ~ontraot Is subject to Chapter 27 uf tfl~i TeJ<aa Property COde. The pr4lVIsfons of; ttl~. chapter may affeot your dght to reoove.r. damages arising from the performance of'ttua ~ntracl. If yQu have a GOrnplalnt concerning; at construction defect arising from the psrtonnancr.e. of thb1 oon~t and that defect has not bF~t1 corrected Utrough normal waitanly SSJ\IIe& 1• lfi."'J1! must provide tfla notice required by Chap.fiW· 1:7! of the Texas Property Code to the oontra.cti'M Q.w certified 1nall, ratum receipt requested, nuti llat$ than the 60th day be·fore tf.\1.\ date you11le ~~ reaover damagoo ftJ a co!Jlt of law IJf 1n~ arbllraUon. The nnUce mus( refer to Chapter27 of lha Texa& P.wpert:y Code and must dt}S:tdilEt· ·the consfruaUon dafect. (f requ~l!!d b'f tft& contractor, you must provide the coniraotar M opp.O.rtunlty to Inspect and cure the defee\ a;: provided by Ssctfon 27.004 ar fua T~ Ptwerly Cooa.
l'ha form o( thlFJ contract !las bean approved by tHe: f.EIY.aa:R~all ~lijla: Co.l'mnmlknlom. 11}!{1Bil: fam,-m ttnlllhlbndedllful·t~lll an!W uw , ..
·t~ansor.llon~. It !s not Intended for complex trm1sflciiiUJBi 'lro:latt R"eniiiE'ufiliiJH!.l'umm.lbvlbmr!PliiJl. liUK>'W:IiBa~tluuUhlr TOOWI!1kt~i09'1, I trained real ~stale llaansees. No rapresenlatlon In: madlf! nfJ.: Ut· !l\e1 1'QQ1111 'luUL'IIlY/ an· Rd~a~v ar l!llY/ ~lO.V.Iblbm ftn ~, ~J.llliJinhl
1-B00·260..6732 or (u12) 4f.i9..S644 (htlp://VN/W,Ve(l,$lill~.lk·;US~1ffilire:~I!Ol.Z1~1i\. 'llllf~fiJnnt[GJ?)Mii'olli'IIIRllilJliflliOI.21J!-/r~ -----~ .
~--------------- TREO NO. 24·6 Page o of 9
· (TAR··I604) 2~18·06 Prod~Wllh ZftlfoJmnl by RE: FO!IJ19Jl~~ ll.C 11!1J261-1!l~r.n ww Roo.d, Ol~lon ToW(IJ.[llp, Mlehlgan 4a0~5 1'11\W,ZIDfqrm com DR Barr
KW~000028 Page 207 •
• . .... ..... ·2·!S:J 110.6.~\'JY ~ StgyUh ·~ ·1&15;;< BROKER INf.~TlOO AND AA1ft:r~lrON oz:·ree . Listing Broker has agreed to pay Other Brolwr . . . of the _(Of(ll ~ pdoo when Listing Broker's foe Is raoalved. Ewaw Agant Is au~d ~an.t,l dfrooted .II) }~ay· Otf1er f:\~ker tr.am. Listing aroker'$ fee at closing.
Other Brolc13r Ucem.t.aNu.· t:l Buyar only aa auye~s agent repreaapts 0 St!ll$r asllsllng Broketa aubl:lgsnt.
· Associate
Broke?s Actdretlg
City State
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Emall Address
EmaliAddr~ O'PlJON FEE ReCEIPT RBCPJp1 ar.$ - - - - - - (OptiMF~h} m ~&form of 1s acknowlecfaad. S&ll!ir or Usttng Broker Onte TREC NO. 24-6 P'rlije~af9 *59 KW..Q00029 Page 208