Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 05/21/2015 3:30:40 PM KEITH E. HOTTLE Clerk
*1 ACCEPTED 04-15-00041-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/21/2015 3:30:40 PM KEITH HOTTLE CLERK C AUSE N O . 04-15-00041-CV _______________________________________________________ I N T HE FOURTH COURT OF APPEALS S AN A NTONIO , T EXAS ___________ T EMPLETON M ORTGAGE C OMPANY Appellant V . G ARY M. P OENISCH Appellee ___________ On appeal from the 216 th District Court of Kendall County, Texas A PPELLANT ’ S B RIEF Respectfully Submitted, L AW O FFICE OF K EITH C. T HOMPSON , P.C. 11003 Quaker Avenue Lubbock, Texas 79424
Telephone: (806) 783-8322 Facsimile: (806) 783-8357
Email: kct@kctlaw.us By: /s/ Keith C. Thompson Keith C. Thompson SBN: 24013631 A TTORNEY FOR A PPELLANT /D EFENDANT O RAL A RGUMENT IS R EQUESTED *2 I DENTITY OF P ARTIES AND C OUNSEL T EMPLETON M ORTGAGE C OMPANY Represented by:
Keith C. Thompson Law Office of Keith C. Thompson, P.C. 11003 Quaker Avenue Lubbock, Texas 79424 Telephone: (806) 783-8322 Facsimile: (806) 783-8357 Email: kct@kctlaw.us
A PPELLANT G ARY M. P OENISCH Represented by:
Gary M. Poenisch, P.L.L.C. 206 E. Locust Street, Suite 218 San Antonio, Texas 78212 Telephone: (210) 212-6700 Telecopier: (210) 212-2178
A PPELLEE i *3 T ABLE OF C ONTENTS I NDEX OF A UTHORITIES ............................................................................................iii S TATEMENT OF THE C ASE ..........................................................................................v S TATEMENT R EGARDING O RAL A RGUMENTS ...........................................................vi I SSUES P RESENTED FOR R EVIEW ...............................................................................vi S TATEMENT OF F ACTS ...............................................................................................1 S UMMARY OF THE A RGUMENT ...................................................................................2 A RGUMENT AND A UTHORITIES ..................................................................................3
I. This Court should reverse the decision of the 216 th District Court of Kendall County because it abused its discretion by granting default judgment against Templeton Mortgage Company since it was deprived of due process. ................................................................................................3 A. Standard of review is abuse of discretion. ................................................3 B. TMC’s right to due process was violated because it did not receive
45 days notice of the default judgment hearing, as such, the hearing was void and default judgment was improper. ..........................................4 i. TMC did not receive the required 45 days notice for trial settings,
so the hearing and all actions during the hearing are void. ..................6 C. The notice served on TMC was defective and thus, the default judgment hearing was void. ......................................................................7 C ONCLUSION AND P RAYER ........................................................................................8 C ERTIFICATE OF S ERVICE .........................................................................................10 C ERTIFICATE OF C OMPLIANCE .................................................................................11 A PPENDICES .............................................................................................................12
ii *4 I NDEX OF A UTHORITIES C ASE L AW Armstrong v. Mazano ,
380 U.S. 545 (1965) ........................................................................................4
Bradford v. Bradford , 971 S.W.2d 595 (Tex. App.—Dallas 1998, no pet.) .......................................4 Coastal Banc SSB v. Helle , 48 S.W.3d 796 (Tex. App.—Corpus Christi, 2001 pet. denied) .....................4 Craddock v. Sunshine Bus Lines, Inc. , 133 S.W.2d 124 (Tex. 1939) ...........................................................................3 Delgado v. Hernandez , 951 S.W.2d 97 (Tex. App.—Corpus Christi 1997, no writ) ...........................4 Fishing Publ’n Inc. v. Williams , 661 S.W.2d 323 (Tex. App.—Corpus Christi 1982, no writ) .........................5 In re $475.001.16 , 96 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2002, no pet.).....................4 LBL Oil Co. v. Int’l Power Servs., Inc. , 777 S.W.2d 390 (Tex. 1989) ......................................................................4, 5 Lopez v. Lopez , 757 S.W.2d 721 (Tex. 1988) ...........................................................................3 Mabon Ltd. v. Afri-Carib Enters., Inc. , 369 S.W.3d 809 (Tex. 2012) .......................................................................3, 5 Mullane v. Cent. Hanover Bank & Trust Co. ,
339 U.S. 306 (1950) ........................................................................................5
Peralta v. Heights Med. Ctr. Inc. ,
485 U.S. 80 (1988) ..........................................................................................3
iii *5 Perkins v. City of San Antonio , 293 S.W.3d 650 (Tex. App.—San Antonio 2009, no pet.) .............................5 R ULES T EX . R. C IV . P. 21 ...........................................................................................2, 5, 7, 8 T EX . R. C IV . P. 245 .............................................................................................5, 6, 8
iv *6 S TATEMENT OF THE C ASE This is a suit involving a dispute over real property. The primary dispute arose between Michael Middleton and Templeton Mortgage Company. Gary M. Poenisch intervened against Templeton Mortgage Company. The issue on appeal is whether the trial court abused its discretion by granting default judgment in favor of Poenisch when Templeton Mortgage Company was deprived of due process by not receiving the proper notice of the hearing on default judgment.
The Honorable Bill Palmer of the 216 th District Court of Kendall County, Texas, presided over the trial. Judge Palmer signed the Order Setting Hearing on October 10, 2015. (Order Setting Hearing). The Certificate of Service was sent on October 9, 2015. (Certificate of Service). Templeton Mortgage Company had previously appeared in other proceedings of the trial, but the trial court struck all of their pleadings at the hearing on default judgment. (Default Judgment Order, p. 1). The trial court granted default judgment in favor of Poenisch and against Templeton Mortgage Company on all of Poenisch’s claims. Templeton Mortgage Company now appeals.
v *7 S TATEMENT OF O RAL A RGUMENTS Appellant hereby requests the opportunity to present this matter by oral argument. I SSUE P RESENTED FOR R EVIEW Did the trial court err by granting default judgment for Poenisch when Templeton Mortgage Company was deprived of due process by not receiving the proper 45 day notice of the hearing on default judgment?
vi *8 S TATEMENT OF F ACTS Michael Middleton (“Middleton”) sued Templeton Mortgage Company (“TMC”) for reasons unrelated to this appeal. TMC appeared in the proceedings. Gary M. Poenisch (“Poenisch”) intervened and asserted claims against TMC. TMC found itself without an attorney, and on August 18, 2014 the trial court gave TMC a certain amount of days to find an attorney. TMC did not find an attorney to represent the company. Poenisch filed a Motion to Enter Default Judgment and Request for Severance.
A hearing on the Motion for Default Judgment and Request for Severance was scheduled for October 15, 2014. (Order Setting Hearing). The Honorable Bill Palmer signed the Order Setting Hearing on October 10, 2014. (Order Setting Hearing). The Certificate of Service, however, was dated October 9, 2014. (Order Setting Hearing).
Prior to the hearing on the default judgment, TMC’s pleadings were not struck. There is no previous order striking the pleadings filed in this matter. At the October 15 hearing, the court struck TMC’s pleadings because TMC did not find an attorney to represent the company. (Default Judgment Order, p. 1). The court struck TMC’s pleadings even though TMC appeared through an attorney at earlier proceedings. (Default Judgment Order, p. 1).
1 *9 After striking TMC’s prior pleadings, the court entered default judgment in favor of Poenisch (Default Judgment Order p. 1). Specifically, the court ruled the deeds held by TMC were null and void, and TMC never owned the real property, which was the subject of the suit. ( Id. at p. 1–2). The court also awarded Poenisch attorney fees against TMC. ( Id. at p. 2).
S UMMARY OF THE A RGUMENT The trial court abused its discretion by granting default judgment in favor of Poenisch because TMC was deprived of due process when TMC was not properly noticed of the hearing on default judgment. TMC should have received notice of the hearing at least 45 days in advance because it was a dispositive hearing. Without proper notice, the hearing was a violation of due process and, as such, was void. Because the hearing was void, the court abused its discretion by striking TMC’s pleadings and granting default judgment in favor of Poenisch.
Further, the Certificate of Service and the Order Setting Hearing were facially invalid and did not comply with T EX . R. C IV . P. 21(d). The Order Setting Hearing was signed on October 10, 2014, but the Certificate of Service was sent on October 9, 2014. Even if the incorrect date was a minor clerical error, the 45 day requirement was not met.
Thus, the Default Judgment Order was improper and this Court should reverse the judgment of the trial court. 2 *10 A RGUMENT AND A UTHORITIES I. This Court should reverse the decision of the 216 th District Court of Kendall County because it abused its discretion by granting default judgment against Templeton Mortgage Company since it was deprived of due process. A. Standard of review is abuse of discretion. A default judgment should be set aside and a new trial granted if the
defendant can show (1) its failure to answer before judgment was not intentional or the result of conscious indifference, but due to mistake or accident; (2) the defendant has a meritorious defense; and (3) the granting of a new trial will not cause delay or otherwise cause injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc. , 133 S.W.2d 124, 126 (Tex. 1939). However, where a defendant has previously appeared, and does not receive proper notice of a trial, the defendant is denied its due process rights of the Fourteenth Amendment and default judgment is improper. Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex. 2012). Further, where notice is not received, the defendant is not required to show a meritorious defense. Lopez v. Lopez , 757 S.W.2d 721, 723 (Tex. 1988). A requirement to show a meritorious defense violates the defendant’s right to due process of law. Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80, 84 (1988). Also, the lack of notice renders a showing of accident or mistake on the part of the defendant unnecessary. See Mabon , 369 S.W.3d at 813. Thus, a judgment entered without notice to the defendant is constitutionally infirm. Id.
3 *11 B. TMC’s right to due process was violated because it did not receive 45 days notice of the default judgment hearing, as such, the hearing was void and default judgment was improper.
Since TMC did not receive the required 45 days notice of the default judgment hearing, TMC’s right to due process was violated, so the proceedings of the hearing are void and default judgment was not appropriate.
A trial setting is any trial or hearing that is dispositive of the case. LBL Oil Co. v. Int’l Power Services, Inc., 777 S.W.2d 390, 391 (Tex. 1989); In re $475,001.16 , 96 S.W.3d 625, 627–628 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Default judgment hearings are trial settings because they are dispositive of the case, in that the claims are fully and finally decided in favor of one party or the other. See Bradford v. Bradford , 971 S.W.2d 595, 597 (Tex. App.—Dallas 1998, no pet.) (citing LBL Oil, 777 S.W.2d at 391); Coastal Banc SSB v. Helle , 48 S.W.3d 796, 801 (Tex. App.—Corpus Christi 2001, pet. denied). If a party has previously appeared in trial proceedings, that party is entitled to notice of the trial setting as a matter of due process. Delgado v. Hernandez , 951 S.W.2d 91, 99 (Tex. App.—Corpus Christi 1997, no writ). Failure to give notice of a trial setting deprives the defendant of the opportunity to be present at the hearing, voice objections, and argue his position to the judge. Id. ; Coastal Banc , 48 S.W.3d at 801. Depriving a party of the opportunity to present their case at trial is a deprivation of fundamental requirements of due process. Armstrong v. Manzo , 380
4 *12 U.S. 545, 550 (1965); see also Mullane v.Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950).
In Texas, notice of trial settings and hearings are governed by T EX . R. C IV . P. 245, which states a defendant must be given at least 45 days notice of a setting for trial. Under T EX . R. C IV . P. 21(b), however, notice of a hearing must be served upon all parties at least three days before the date of the hearing. Although these rules seemingly conflict, Rule 21 does not apply to trial settings. Perkins v. City of San Antonio , 293 S.W.3d 650, 654 (Tex. App.—San Antonio 2009, no pet.) (citing Fishing Publications, Inc. v. Williams , 661 S.W.2d 323, 325 (Tex. App.—Corpus Christi 1982, no writ)). When a party has previously appeared an “[e]ntry of a post-answer default judgment against a defendant who did not receive notice of the trial setting or dispositive hearing constitutes a denial of due process under the Fourteenth Amendment of the United States Constitution.” Mabon Ltd. v. Afri- Carib Enterprises, Inc. , 369 S.W.3d 809, 813 (Tex. 2012) (citing LBL Oil, 777 S.W.2d at 390–91).
Here, the default judgment hearing was a trial setting because default judgments are dispositive of the case. Templeton had previously appeared in the action and answered the original proceeding against Middleton. Default Judgment Order p. 1. Poenisch intervened and filed a Motion to Enter Default Judgment, which the trial judge signed on October 10, 2014. Order Setting Hearing p. 1. The
5 *13 hearing on default judgment was set for October 15, 2014. Id. The Order Setting Hearing was served on TMC on October 9, 2014. Certificate of Service. Prior to the October 15, 2014 hearing, TMC’s pleadings were never struck.
As a trial setting, T EX . R. C IV . P. 245 requires 45 day notice be given rather than 3 days notice. To meet this requirement TMC should have received notice of the hearing by August 31, 2014 at the latest. TMC received the notice on October 9, 2014, just seven days before the hearing on default judgment. This notice violated T EX . R. C IV . P. 245, and the violation deprived TMC of its right to due process because TMC did not have the opportunity to be present at the hearing, to voice its objections, and to present its case before the court. While TMC did not retain an attorney, this is not grounds to deprive TMC of due process.
The actions of the trial court were a clear abuse of discretion because TMC was not properly noticed and was deprived of due process. As such, the October 15 hearing was void, and all actions and rulings made during the hearing are also void. This abuse of discretion constitutes reversible error.
i. TMC did not receive the required 45 days notice for trial settings, so the hearing and all actions during the hearing are void. TMC’s right to due process was violated when TMC did not receive 45 days notice of the default judgment hearing. Hence, the hearing was void, and all actions and decisions the trail court made at the hearing constitute an abuse of discretion.
6 *14 The trial court’s main action at the hearing was to strike all TMC’s previous pleadings. Trial Transcript p. 4 lines 20–23. Prior to the default judgment hearing, TMC’s pleadings had never been struck. The only way the trial court could grant a default judgment was to strike TMC’s pleadings. Since the default judgment hearing was void, striking TMC’s pleadings was wrong, and thus default judgment was not appropriate. The default judgment resulted in an incorrect ruling against TMC. The default judgment wrongly granted relief to Poenisch, declared TMC’s Substitute Trustee’s Deed and the Deed of Trust invalid, and allowed Poenisch to recover attorney fees from TMC. Default Judgment Order p. 1.
The default judgment hearing, without proper notice, deprived TMC of due process. Thus, the hearing was void. Because the hearing was void, TMC’s pleadings should not have been struck. As result, default judgment was improper. This Court should reverse the default judgment because the trial court abused its discretion when it violated TMC’s right to due process.
C. The notice served on TMC was defective and thus, the default judgment hearing was void. The certificate of service did not comply with T EX . R. C IV . P. 21(d) because the date of service was incorrect. Texas Rule of Civil Procedure 21(d) governs the certificate of service required on all motions, pleadings, and applications to the court. T EX . R. C IV . P. 21(d). Under Rule 21(d) the “party or attorney of record, must certify to the court
7 *15 compliance with this rule in writing over signature on the filed pleading plea, motion, or application.” Id.
Here, the Certificate of Service sent by Poenisch’s counsel was facially invalid because the corresponding dates from the Order Setting Hearing and the Certificate of Service are incompatible. The trial judge signed the Order Setting Hearing on October 10, 2014. The Certificate of Service, however, was sent on October 9, 2014. The Certificate of Service states that it accompanies “a true and correct copy” of the Order Setting Hearing. The trial judge could not have signed the Order Setting Hearing after the Certificate of Service was sent. So the Certificate of Service is either not true or not correct. Even if the incorrect date was a minor clerical error, the notice still violated TMC’s due process because the notice did not meet the 45 day requirement.
Thus, the Certificate of Service and Order Setting Hearing were facially invalid. As such, notice to TMC was invalid because the 45 day requirement was not met, as such the October 15 hearing was void and default judgment was improper.
C ONCLUSION A ND P RAYER TMC did not receive the proper 45 day notice of the default judgment hearing required by T EX . R. C IV . P. 245. The failure to comply with this requirement resulted in the deprivation of TMC’s right to due process. As such, the hearing was
8 *16 void and all actions, findings, and rulings of the trial court are null and void. Thus, the trial court abused its discretion when it wrongfully struck TMC’s prior pleadings, and improperly granted default judgment to Poenisch.
W HEREFORE , P REMISES C ONSIDERED TMC respectfully requests that this Court reverse the judgment of the trial court, and grant all other relief to which TMC is justly entitled both at law and equity.
Respectfully Submitted, L AW O FFICE OF K EITH C. T HOMPSON ,
P.C.
11003 Quaker Avenue Lubbock, Texas 79424
Telephone: (806) 783-8322 Facsimile: (806) 783-8357
Email: kct@kctlaw.us By: /s/ Keith C. Thompson Keith C. Thompson
SBN: 24013631
A TTORNEY FOR A PPELLANT /D EFENDANT 9 *17 C ERTIFICATE OF S ERVICE I, Keith C. Thompson, Attorney for Appellant herein, do certify that on the 21 st day of May 2015, I mailed by Electronic Mail a true and correct copy of Appellant’s Brief to: Gary M. Poenisch Gary M. Poenisch, P.L.L.C. 206 E. Locust Street, Suite 218 San Antonio, Texas 78212 Telephone: (210) 212-6700 Telecopier: (210) 212-2178
I further certify that on the 21 st day of May 2015 I mailed by Electronic Mail, an original and five true and correct copies of Appellant’s Brief for filing to: Fourth Court of Appeals of Texas Cadena-Reeves Justice Center 300 Dolorosa, Suite 3200 San Antonio, Texas 78205-3037
10 *18 C ERTIFICATE OF C OMPLIANCE This document complies with the word-count limitations of T EX . R. A PP . P. 9.4(i) because it contains 2,074 words, excluding the parts exempted by T EX . R. A PP . P. 9.4(i)(1).
By: /s/ Keith C. Thompson K EITH C. T HOMPSON 11 *19 A PPENDICES Default Judgment Order ............................................................................................1 Trial Transcript ..........................................................................................................2 Order Setting Hearing and Certificate of Service......................................................3 FILED IN
4th COURT OF APPEALS SAN ANTONIO, TEXAS 05/21/2015 3:30:40 PM KEITH E. HOTTLE Clerk
12 *20 TAM I L. W 0 L F F Court Reporter Kendall Co u nty Courthouse 201 E. San Antonio, Suite 212 Boerne, Texas 78006 (830) 331-8286 tami.wolff@co.kendall.tx.us
DATE :
JANUARY 1 3 , 2015 INVOICE NO . 003 - 15
TO :
TEMPL ETON MORTGAGE CORPORATION
5109 82ND STREET , SUITE 7121 LUBBOCK , TEXAS 70424 PHONE : (806) 745 - 9965
RE: CAUSE NO . 10 - 422
MICHAEL MIDDLETON
IN THE COUNTY COURT
VS .
AT LAW
TEMPLETON MORTGAGE CO .
KENDALL COUNTY , TEXAS
ORIGINAL & ON E COPY OF THE REPORTER ' S RECORD :
DATE TAKEN : 10-15-14
TRANSCRIPT : $75 . 00
TOTAL COST : $75.00 AMOUNT PAID: - $75 . 00 AMOUNT DUE: $00
*21 1 , ----- NO. 10- 422 MICHAEL C. MIDDLETON IN THE DISTRICT COURT
VS .
216TH JUDICIAL DISTRICT TEMPLETON MORTGAGE CORPORATION, JERRY W. CORBIN , TRUSTEE, B.D. ADKINS, TRUSTEE, PATTY CORBIN , TRUSTEE, AND ENOS HAMPTON INDEPENDENT EXECUTOR OF THE ESTATE OF BETTY G. ROBINSON KENDALL COUNTY , TEXAS
REPORTER'S RECORD
On the 15th day of October 2014, the following proceedings came on to be heard in the above-entitled and numbered cause before the Honorable Bill Palmer , Judge presiding, he l d in Boerne , Kendall County , Texas .
Proceedings reported by machine stenographic method . TAMI L . WOLFF, C. S.R . PHONE: (830) 331-8286
*22 2 A P PEA RAN C E S: MR . KENNETH E. GRUBBS Attorney a t Law 4241 Woodcock , Suite C- 120 San Antonio, Texas 78228 Phone: (210) 490 - 1292 ATTORNEY FOR THE PLAINTIFF
- AND - MR. STEVEN B. TREU LANGLEY & BANACK Attorneys at Law 745 E. Mulberry, Suite 900 San Antonio, Texas 78212 Phone: (210) 736 - 6600
ATTORNEY FOR THE DEFENDANTS
TAMI L. WOLFF , c. S.R .
PHONE: (830 ) 331-8286 *23 3 PRO C E E 0 I N G S 1 2 3 THE COURT : Okay . The Templeton case . 4 Tell me what we ' re doing today . I remember b e fore
that Templeton was out without an attorney . And were they here last time? Was there somebody with Templeton?
MR . TREU : Well , the law firm of Law , Snackard & Gamble was here for the withdrawal . THE COURT: Okay. And then we gave them notice to get -- MR. TREU: Yes , sir. THE COURT : -- an attorney within "X"
number of days and they failed to -- MR. TREU : Here is a copy of the order . It was the 26th that you gave them , and there has not been an appearance .
THE COURT : Okay . And who are you? MR. GRUBBS: I ' m Ken Grubbs on b e hal f of
the Plaintiff. Essentially, Steve and I are do i ng the same thing today , Your Honor .
THE COURT: Okay . MR. GRUBBS: We filed a motion for
default judgment based on -- I wasn't aware -- we were supposed to have an as s ociate here when Steve was
TAMI L. WOLFF, C . S . R . PHONE: (830) 331-8286
*24 4 doing what he did the last time we were in court. And apparently, my associate may have misinformed me about his presence here in the court. So, I wasn't aware that the answer had been struck and that they had been given a --
THE COURT: Okay. MR. GRUBBS: -- number of days to get
counsel and respond. THE COURT: Yes, sir. MR. GRUBBS: And based on that fact, we
filed and served on everybody i nvolved, including Steve, our own motion for default judgment.
13 Effectively, the motions are the same thing. They're 14 just for the different parties and they have different 15 claims for 16 THE COURT: Well, I gave them the right 17 within "X" number of days to get an attorney, which is 18 what the case law says on this. And then -- 19 MR. GRUBBS: Right. 20 THE COURT: -- as a result, Slnce they 21 haven't gotten an attorney as of this date, then I'll 22 strike their answer, which lets both of you go forward 23 with a default. 24 MR. TREU: I'm asking for a severance, 25 Your Honor. There was some other issues still left
TAMI L. WOLFF, C.S.R .
PHONE: (830) 331 - 8286
*25 5 1 THE COURT: What else should be left 2 after -- do you have a default order? 3 MR. GRUBBS: I do, Your Honor, against 4 Templeton. The estate is left -- as of today, I
haven't checked whether they have a counter- claim or not. And so, I'm not asking for a severance because I -- I assume that once the estate realizes we don't care anymore about the remainder of the case, hopefully we'll agree to do mutual nonsuits and walk away from -- from there. And they've been given notice of the hearing this morning as well, Judge.
THE COURT: I know. I've got correspondence from them. MR. GRUBBS: So -- and so, that's effectively where we're at. I have an affidavit for 16 my legal fees and I think Steve has got one as well. 17 MR. TREU: Mine is on file as well. 18 THE COURT: Okay. Do you have your 19 order? MR. GRUBBS: I have my own default. Your 20 21 Honor, I did I was looking at Steve's order and 22 realized that I left something out on the legal fees 23 relating to new trial and appeal, and so I handwrote 24 it at the bottom here, Judge. So, there is some of my 25 chicken scratch here.
TAMI L. WOLFF, C.S.R.
PHONE: (830) 331-8286
*26 6 THE COURT: I don ' t see that happening , but do whatever you want. If you can't get an attorney for th i s , I don 't see you going much further. Do they have any money? Is there any money in this?
MR . TREU: The biggest thing is get the property back , but -- THE COURT : Oh , that's right . MR. TREU: That 's our issue; clear the
title . MR . GRUBBS : That's right. And that ' s 11 what ours states as well, Judge . We have our default 12 there as well , Judge. And I 've read Steve's order and 13 I have no objection to it as written. 14 THE COURT : Okay. Order of severance. 15 MR . GRUBBS : That ' s the default, Your 16 Honor. 17 THE COURT: Okay . Take this across the 18 hall and get you copies of what you need. Okay. 19 MR. GRUBBS: Thank you , Judge . 20 THE COURT : See y'all later. MR . TREU: Thank you , Judge. 21 22 23 24 25
TAMI L. WOLFF, C.S.R.
PHONE: (830) 331 - 8286
*27 7 ,- THE STATE OF TEXAS *
I
* 2 COUNTY OF KENDALL I, TAMI L. WOLFF, Certified Shorthand 3 4 Reporter in and fo r the State of Texas, do hereby
FILED IN
4th COURT OF APPEALS
5 certify that the above and foregoing contains a true SAN ANTONIO, TEXAS
05/21/2015 3:30:40 PM
6 and correct transcription of all portions of evidence
KEITH E. HOTTLE
Clerk
7 and other proceedings requested in writing or orally 8 by counsel for the part i es to be included in this 9 volume of the reporter ' s record , i n the above - styled
10 and numbered cause , all of which occurred in open 11 court or in chambers and were reported by me. 12 I further certify that this reporter ' s l3 record of the proceedings truly and correctly reflects
the exhibits, if any, admitted by the respective parties.
I further certify that the total cost of preparation of this report~ record is $ :?~Gt) the I ~ ~. and was paid/will be paid by WITNES MY OFFICIAL HAND on this , the day of 4~~~'7--- ' 2015 . Expira tion : 12/3 1 /15 Kendall County Courthouse 201 E . San Antonio , Suite 212 Boerne , Texas 78006 (830) 331 - 8286
TAMI L. WOLFF,
C,S , R, PHONE: (830) 331-8286
CAUSE NO. 10422
*28 MICHAEL MIDDLETON § IN TIlE DISTRlCT COURT § v § 216'" JUDIClALDISTRlCT §
TEMPLETON MORTOAGE § CORPORATION, JERRY W. CORBIN, § TRUSTEE, BD. ADKINS, TRUSTEE, § PATIY CORBIN, TRUSTEE, AND § ENOS HAMPTON, INDEPENDENT § EXECUTOR OF TIlE ESTATE OF § BETIY G. ROBINSON § FILED IN
KENDALLCOUNT~TEXAS
4th COURT OF APPEALS ORDERSETnNGBE~G SAN ANTONIO, TEXAS Hearing on IntetVenor, Gary M. Poen isch's MOOoo to Enter Default Judgment and Request for 05/21/2015 3:30:40 PM
KEITH E. HOTTLE
Severance is 6ct for the 15tb day ofOc:tober, 2014 11 9:00 a.m. inthe216t& Judicial DistrictCourt ofKCfldaU Clerk County. Texas. s;gnedth;s( D d'YOfocrober'2014~~ E BILLPALMER "'. CERIIFICtVE OF SERVICE I hereby certify that on the 9th day of October. 2014. a true and correct copy oftbe foregoing document was forwarded via certified mlllI. return receipt reque:noo LO: Kenneth E. Grubbs Templeton Mortgage Corporation 5109 82"" Street, Suite 7 t [21] [4241] Woodc.ock Drive. Suite C 120 Lubbock, Te .... 79424 San Antonio, Texas 78228-1330
210 - 4'1~-4S"7 Albert D. "Pat" Pattillo. m .... Pattmo, Richard & Harpold, p.e. 280 Thompson Dr., Suite B '" n
·11 Kerrville, Texas 78Ol3 ~ .. '" . 81 • • ~"'" i - C> Jerry W. Corbin rn " . Jerry W. Corbin,P.C. ::;: W li923 Indiana Ave .• Suite 106 " c.n Lubbock, Texas 79413 ,<,. '14' ·1+51
.c- ,;!",,,,, ~ .I n" ""' W;- "'i'~ rago [1]
CAUSE NO. 10-422
*29 § MICHAEL MIDDLETON IN THE DISTRICT COURT § v [2] J 6'" ruDICIAL DISTRICT § § TEMPLETON MORTGAGE § CORPORATION, JERRY W. CORBIN, § TRUSTEE, B.D. ADKINS, TRUSTEE, § PATTY CORBIN, TRUSTEE, AND § ENOS HAMPTON, INDEPENDENT § EXECUTOR OF Tin; ESTATE OF § KENDALL COUNTY, TEXAS BE1TY G. ROBINSON §
DEFAULT JUDGMENT
On the below date, came on to be heard Intervenor Gary M. Poenisch's ("Intervenor") claims filed against Templeton Mortgage Corporation ("Tenlpleton") ill the above--entitled and numbered cause. Intervenor appeared by and througb his attorney of record and announced ready. Templeton although baving earlier appeared in this action through an attorney, failed to comply with this Court' s Order dated August 18, 2014 and consequently its pleadings were struck in this cause. Therefore a default entry in favor of Intervenor and against Templeton is appropriate. The Court is of the opinion that the allegations of Intervenor's Petition in Intervention against Templeton are true,lhat a declaration (as allowed under Chapter [37] of the Texas Civil Practice & Remedies Code) that the Substitute Trustcc's Deed and Deed of Trust, both made subject of this proceeding. arc invalid is appropriate, and that Intervenor should recover a reasonable atlorney's fee and conditional reasonable attorney's fees, all of which the Court finds necessary. It is. therefore,
ORDERED, ADnJDGED AND DECREED that the Substitute Trustee's Deed dated December 7, 2010 and recorded in the official records of Kendall County, Texa. ... at Volume 1240 and Pages 612·61 S in the Kendall County, Texas real propeny records, as document number 00253701, AD4 the Deed of Trust dated As Of January 1,2009 and recorded in the official records of Kendall County, Texas at Volume 11 S9 and Pages 999·1 005 in the Kendall County, Texas real property records, as document number 002395 17, are QQ1h hereby declared null and ~oid and of no force or effect whatsoever. It is further
Page 1 I.. & B loS.58610003JU}90464S. WPOI *30 ORDERED. ADJUDGED AND DECREED that Templeton Mortgage Corporation never owned or had valid title to the real property described as: BEING 33.906 acres, more or less, tract ofland, being approximately2.892 acres outoflhe E. Schilling SurVey No. 341, Abstract No. 829 and approximately 31 .014 acres out of the Louis Shotwell Survey No. 26, Abstract No. 457, Kendall County, Texas, located about 14.3 miles North -43 degrees West of the county scat in Boerne, Kendall County, Texas, being the northwestern portion of a tract as described in Deed ret:Orded in Volume 205. Page 721 , Kendall County Deed Records and being more fully described as follows: BEGINNING at an existing iron pin in a. fence for the southwest comer of this tract, said pin being South 321.2 feet from the northwest comer ofthe E. Schilling Survey No. 341; THENCE, N 88 [0] 57 22" B 305.33' to an ex.isting iron pin for comer, THENCE, N 2&<> 50' 35" E 2,991.28' to an existing iron pin in a fence on a southwest line of the Holiday Road; THENCE, with the said line of Holiday Road, N 42" 47' 50" W 66.85' (0 an existing iron pin forcomcr; TIlENCE, S 43° 48' 00" W 1,527.70' and S 89° 32' 45" W 640.89' to an existing iron pin in a fence for comer; THENCE, with fence S 00° 13' 35" W 1,373.44' and S 00° 14' 00" E 193.66' to the place of beginning and containing 33.906 acres of land, m,?fe or less.
It is further, ORDERED, ADJUDGED AND DECREED that Intervenor. Gary M. Poenisch. recover from Templeton Mortgage Corporation as reasonable and necessary attorney's fees and expenses, which attorney's fees and expenscs are hereby made part of this Judgment, the sum of$6,515.00 with postjudgrncnt interest on such amount accruing lit the rate of5% per annum. together with all costs of COllrt in this behalf expended.
IT IS FURTI1ER ORDERED, ADJUDGED AND DECREED that Intervenor, have and recover of and from Templeton the sum ofS2,400.00 as attorney's fees if Templeton files a motion for new trial, bill of review or motion to vacate orothc:rwise cbange or modify Judgment which is denied or overruled, further the sum of $12,000.00 as attorney's fees if this Judgment is unsuccess;.fully appealed to the Fourth Court of Appeals by Templeton, further the-sum ofSI 0,000.00 as attorney's fees if petition for review is filed with the Texas Supreme Court. further the sum 0[$20,000.00 if such petition is briefed on the merits before the Page 2 L &: B I (jS8&1OOO31L090464~ _ WPf)f *31 Texas Supreme Court. further the sum of $20,000.00 if oral argument is completed in the Texas Supreme Court; at! such attorne)'s foes are hereby made part of this judgment
IT (S F1.JRTHER ORDERED, ADJUDGED AND DECREED that tbe claims ofmtcrvcnor against Templeton and the disposition of same as set forth in this judgment shall be and are hereby severed from Cause No. 10-422 into a separate action, such that this judgment may and shall become fmal notwithstanding
1,,~'f22 A . the continued pendency of Cause No. • and the clerk of the Court is hereby directed to docket (0 ..... Lf.2.:.2: A- and rcoord this judgment under Cause No. Intervenor is allowed such writs and processes Wi may be necessary in the enforcement and collection of this Judgment. All co,ts of court are adjudged against Templeton. This judgment is intended to be a final entry of default resolving all issues raised in this cause by intervenor against Templeton from which appeal may be tiled. In that regard, all other relief expressly requ~1:ed in this cause , by Intervenor against Templeton that is not expressly disposed of above is hereby in all things denied.
SIGNED this 15th day of October. 2014.
J
~V7 / /7 f /1 I / . b ··' L---
JUDGE PRE
SUSMllTED BY: LANGLEY & BANACK, INC. 145 E. Trinity, Suite 900 San Antonio. Texas 78212-3166 (21 0) 73~600 Telc;pbone ..--, (210)7)5-6889TeJecop}~ .
i.' o streu@Iang~ybanaCk.com, .. ~ .' ,/~ Q--- By: STeVEN B. TRf..u . State Bar No. 202~%o( U1
A lTORNEYS FOR PLAINTlFF L& a 16S861OOO31L090464!i.WPJ)( Page 3
CAUSE NO. 10-422
*32 MICHAEL MIDDLETON § IN THE DISTRICT COURT § v § 2 I 6'" JUDICIAL DISTRICT §
TEMPLETON MORTGAGE § CORPORATION, JERRY W. CORBIN, § TRUSTEE, B.D. ADKINS; TRUSTEE, § PATTY CORBIN, TRUSTEE, AND § ENOS HAMPTON, INDEPENDENT § EXECUTOR OF THE ESTATE OF § KENDALL COUNTY, TEXAS BETTY G. ROBINSON §
CERTIFICATE OF LAST KNOWN ADDRESS TO THE CLERK OF SAID COURT: Gary M. Poenisch, Intervenor in the above--entitled and numbered cause, certified to the Clerk of said Court that the last known mailing address of Templeton Mortgage Corporation, Defendant in the above~ entitled and numbered cause against whom a default judgment will be rendered, is as follows:
Templeton Mortgage Corporation 5109 82· d Street. Suitt' 7121 Lubbock, Texas 79424 Respectfully submitted, LANGLEY & BANACK, INC. 745 East Mulberry. Suite 900 San Antonio, Texas 78212·3166 (210) 736-6600 Telephone
o (210)735-6R8H;!F0: . ~~ l:J , -' streu@langleybapack.cP,!d"\'
)Y' /,'/' ,
By:---;~~V~;\:;;;;-;j;_C±=-_- l! .. 0 L .'STEVEN B. State Bar No, 20a L. ATTORNEYS FOR INTERVENOR ) )
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