Roger Tarrant, Denise Tarrant, Justin Tarrant and the D.A. Tarrant Irrevocable Trust v. Daniel Scarbrough ( 2017 )

ACCEPTED
12-17-00125-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/31/2017 3:13 PM
Pam Estes
CLERK
No. 12-17-00125-CV
_____________ FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
7/31/2017 3:13:07 PM
In the Twelfth Court of Appeals PAM ESTES
Tyler, Texas Clerk
_____________
Roger Tarrant, et al,
Appellants
v.
Daniel Scarbrough,
Appellee.
_____________
Appellants’ Brief
_____________
Gregory D. Smith Jim Echols
Bar No. 18600600 Bar No. 06391500
SMITH LEGAL PLLC SAUNDERS, SCHMIDT
110 N. College Ave., Suite 1120 & ECHOLS, P. C.
Tyler, TX 75702 202 W. Erwin Street, Suite 200
Telephone: (903) 630-7165 Tyler, TX 75702
Facsimile: (903) 609-3077 Telephone: (903) 595-3791
greg@smithlegaltx.com Facsimile: (903) 595-3796
j.m.echols@att.net
Attorneys for Appellants
Identity of Parties
Appellants: Roger Tarrant
Denise Tarrant
Justin Tarrant
D. A. Tarrant Irrevocable Trust
Counsel for Appellants: Gregory D. Smith
Bar No. 18600600
SMITH LEGAL PLLC
110 N. College Ave., Suite 1120
Tyler, TX 75702
Telephone: (903) 630-7165
Facsimile: (903) 609-3077
greg@smithlegaltx.com
Jim Echols
Bar No. 06391500
SAUNDERS, SCHMIDT & ECHOLS, P.C.
202 W. Erwin Street, Suite 200
Tyler, TX 75702
Telephone: (903) 595-3791
Facsimile: (903) 595-3796
j.m.echols@att.net
Appellee-Plaintiff: Daniel Scarbrough
Counsel for Appellee: Jeffrey L. Coe
Bar No. 24001902
1000 N. Church St.
P. O. Box 1157
Palestine, TX 75082-1157
(903) 723-0331
(888) 651-6851 (fax)
jeff@coelawfirm.com
Contents
Table of Authorities ii
Statement of the Case 1
Statement of Facts 2
Issues 5
Summary of Argument 6
Argument:
I. Because Scarbrough failed to prove his case, the post-answer
default judgment should be reversed and the cause remanded
for a new trial. 7
A. Scarbrough needed to present legally- and factually-sufficient
evidence proving the elements of a fraudulent transfer. 8
B. Scarbrough failed to prove the fraudulent-transfer elements,
but instead testified to legal “positions” and speculative “beliefs.” 9
II. Because the Tarrants lacked notice of the actual trial, due process 13
requires a new trial.
III. Because the record omits to prove adequate notice of even the
initial setting, the Tarrants have been deprived of their ability to
show harm. 17
Conclusion and Prayer 19
Certificate of Service 21
Certificate of Compliance 21
Appendices:
A. Judgment
B. Notice of Setting
i
Authorities
In re $475,001.16, 96 S.W.3d 625 (Tex. App.—Houston [1st Dist.]
2002, no pet.) 15
Armstrong v. Manzo, 380 U.S. 545 (1965) 17
Bennett v. McDaniel, 295 S.W.3d 644 (Tex. 2009) 13
City of Keller v. Wilson, 168 S.W.2d 802 (Tex. 2005) 8
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) 13
Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) 13
Cox v. Cox, 298 S.W.3d 726 (Tex. App.—Austin 2009, no pet.) 19
Davis v. Berger, 2000 Tex. App. LEXIS 448 (Tex. App.—Dallas
2000, no pet.) 7
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009) 16
Ed Rachal Found. v. D’Unger, 117 S.W.3d 348
(Tex. App.—Corpus Christi 2003) 13
Green v. McAdams, 857 S.W.2d 816
(Tex. App.—Houston [1st Dist.] 1993, no writ) 14
LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) 13
Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) 15
Maldonado v. Puente, 694 S.W.2d 86
(Tex. App.—San Antonio 1985, no writ) 7
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) 8
Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (per curiam) 18
Naan Props., LLC v. Affordable Power, LP, 2012 Tex. App. LEXIS 271
(Tex. App.—Houston [1st Dist.] 2012, no pet) 19
Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177 (Tex. 2012) 7
Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988) 15
Roberson v. Robinson, 768 S.W.2d 280 (Tex. 1989) 7
ii
Sammons v. Elder, 940 S.W.2d 276 (Tex. App.—Waco 1997, writ denied) 7
Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996) 8
Will. v. Houston Plants & Garden World, Inc., 508 B.R. 11
(S. D. Tex. 2014) 10
Wilson v. Indus. Leasing Corp., 689 S.W.2d 496
(Tex. App.—Houston [1st Dist.] 1985, no writ) 18
Worthen v. Glatzer, 1999 Tex. App. LEXIS 1913
(Tex. App.—Dallas 1999, no writ) 14
TEX. BUS. & COM. CODE ANN. § 24.005 10
TEX. BUS. & COM. CODE ANN. § 24.005(a)(1) 9
TEX. LAWYER’S CREED - A MANDATE FOR PROFESSIONALISM, III (11) 16
TEX. R. CIV. P. 245 14
Calvert, “No Evidence” and “Insufficient Evidence” Points of Error,
38 TEX. L. REV. 361 (1960) 12
iii
To the Honorable Court of Appeals:
The judgment below cannot stand because, first, it is not supported by factually
sufficient proof and, second, the defendants did not have adequate and reasonable
notice of the trial session, in violation of due process.
Statement of the Case
Nature of the Case Suit to set aside a real-property conveyance. Plaintiff Scarbrough
alleged it was a fraudulent transfer as defined in the Texas Uniform
Fraudulent Transfer Act.
Trial Court Honorable Mark Calhoon, 3rd Judicial District Court
Course of Proceedings Bench trial. A hearing was set for 11 a.m. on January 6. The
defendants, who had previously answered, CR 39, did not appear.
RR 4. Nor did plaintiff’s counsel. Id. The court thus reset the case
for a “prove up” trial, later that day, at which plaintiff’s counsel
appeared by telephone. Id. After a trial spanning all of ten reported
pages (including testimony on remedies and attorney’s fees), RR 4-
13, the trial court entered a “default judgment” finding a fraudulent
transfer and setting aside the challenged conveyance. App. A.
While the judgment recites that the defendants were “provided due
notice,” App. A, the trial transcript shows only that the court took
judicial notice of its file, which reflected no attempt at notifying
defense counsel of the prove-up hearing or offer to let him attend
that hearing by telephone.
Upon learning of the judgment, the defendants (collectively, the
Tarrants) filed a motion for new trial broadly asserting lack of
notice and requesting a hearing. CR 65-66. The motion was
overruled by operation of law, without a hearing.
1
Statement of Facts
General Background. Daniel Scarbrough is an attorney practicing in Anderson
County. Roger and Denise Tarrant, who live in Anderson County, hired Mr. Scarbrough
to defend one of their sons against a felony criminal case. Scarbrough was paid a
substantial sum of money. He won an acquittal. Afterwards, Scarbrough and Mr. and
Mrs. Tarrant disputed whether Scarbrough was owed additional monies for his legal
work.
Scarbrough sued to collect the disputed fees. As that collection suit was
approaching trial, Roger and Denise, needing funds for their defense, entered a
transaction wherein their adult son, Justin (not the son whom Scarbrough had defended
against the criminal charges) would borrow funds from an existing spendthrift family
trust established by Denise’s parents and would buy Roger’s real property. The sales
consideration, as recited in the warranty deed, included not only the cash proceeds of
this loan but Justin’s assumption of two existing loans against the property and his
agreement to indemnify Roger against any claims made on the assumed loans. CR 43-
44. The sale closed after the verdict was entered in Scarbrough’s collection suit.
(Scarbrough recovered about $115,000 in that suit, including the debt and attorney’s
fees. RR Ex. A.) Scarbrough then sued Roger, Denise, Justin and the family trust (the
D. A. Tarrant Irrevocable Trust), to set aside the conveyance.
The Evidence at Trial. The evidence, fairly stated, was that Roger Tarrant
owned an undivided interest in the tracts of land described in Trial Exhibit B, a warranty
2
deed. RR 7. On November 21, 2014, he deeded that land to Justin, who signed a deed
of trust in favor of the D. A. Tarrant Irrevocable Trust. RR 8. The deed of trust indicates
that Justin borrowed $52,325 from the trust. RR 8.
At this point in the trial—page 8 of the transcript—the probative evidence stops
and surmise take over. The remaining material testimony was as follows:
Q. Now, is it your position toda y, that the property described in Plaintiff’s
Exhibit B, was property that was fraudulently transferred with the intent
to hinder, delay, or defraud you in the judgment that you obtained
…previously …?
A. Yes, I do. [sic]
Q. Do you believe that transfer … would be something that constitutes what
we typically call, somebody that’s an insider? That their son Justin
possessed special knowledge or information being their son …?
A. Yes, I do.
Q. And is it your position that apparently this trust that – the trust
document isn’t of record , but that this trust was an alter ego of Denise
A. Tarrant or Roger Tarrant …?
A. Yes, I do. [sic]
Q. Do you believe that the Defendants had actual knowledge of your claim
against them prior to the transfer?
A. Absolutely.
...
Q. Do you believe that Justin Tarrant and Denise and Roger Tarrant have
engaged in a conspiracy among themselves in this attempt to damage you?
A. Yes, I do.
Q. Are you asking that this transaction be set aside in its entirety …?
A. Yes.
3
Q. And did you have to retain me to file this action …?
A. Yes.
Q. Are you asking for reasonable and necessary attorney’s fees?
A. I am. RR 8-11 (emphasis added).
The only other trial proof was counsel’s testimony as to attorney’s fees and brief
follow-up testimony about the requested remedies.
4
Issues
The Failure of Proof at Trial
1.
Where the defendant has answered, the plaintiff must prove his claims at trial,
even when the defendant fails to attend. Scarbrough thus needed to prove the elements
of fraudulent transfer—that the transfer was made either with “actual intent to hinder”
collection or “without receiving a reasonably equivalent value in exchange.” Did
Scarbrough present factually-sufficient evidence to support the trial court’s implied
finding on either such element? Is there even legally-sufficient evidence of this? And is
there legally and factually-sufficient evidence of Scarbrough’s derivative claim for
conspiracy?
The Failure of Due Process: A Lack
of Proper Notice of the Trial Hearing
2.
Due process requires that an answering defendant have reasonable notice of trial.
Here, a hearing was set for 11 a.m. January 6. The Tarrants failed to appear. But so did
Scarbrough’s counsel. The district court thus reset the case for “prove up” at a 1:30
p.m. session of court, which Scarbrough’s counsel attended by telephone. There was
no notice to the Tarrants of the prove-up trial. Does due process require remand for a
new trial that all parties are invited to attend?
3.
The clerk’s file includes a “notice of setting” (for the initial, aborted 11 a.m.
hearing) with a hearsay notation “CC: Jeffrey Coe; Jim Echols.” Neither Mr. Coe nor
Mr. Echols appeared at the 11 a.m. session of court. And neither the district clerk’s file
nor the trial record contains any indication that the filed notice of setting actually was
sent. Is a remand required because the record does not prove notice even of the initial,
aborted setting?
5
Summary of Argument
Because the Tarrants timely answered Scarbrough’s collection suit with a general
denial, which remained effective at all times, Scarbrough could not win by “default” but
had to prove all elements of liability through probative evidence admitted at trial the
same as if the Tarrants had been present. Scarbrough did not do this. There was a prove-
up hearing. But the evidence did not prove a fraudulent conveyance. On critical
elements of his fraudulent-transfer theory, Scarbrough offered only surmise—either an
asserted conclusory “position” or a subjective and speculative “belief.” Such positions
and beliefs are non-probative. Consequently, there was factually-insufficient proof on
the essential elements of a fraudulent transfer, requiring that the judgment below be
reversed and the cause remanded for a new trial.
Alternatively, due process requires remand for a new trial, because the record
lacks the necessary notice to the Tarrants of the prove-up hearing. Here, there are two
bases for finding such a failure of notice. First, there was no attempt to notify the
Tarrants of the actual, rescheduled trial. And second, there is no evidence of proper
notice even of the initial, aborted setting. On motion for new trial, the Tarrants broadly
challenged notice. The lack of factually sufficient evidence establishing any such notice
relieved the Tarrants of any burden to prove the other Craddock requirements, and now
requires reversal and remand for a new trial.
6
Argument
I. Because Scarbrough failed to prove his case, the post-answer default
judgment should be reversed and the cause remanded for a new trial.
This appeal challenges what the courts commonly call a post-answer “default.”
But that term is something of a misnomer: when a defendant answers suit, he “preserves
any issues he has properly joined by his answer.” Maldonado v. Puente, 694 S.W.2d 86, 91
(Tex. App.—San Antonio 1985, no writ). A general denial thus tasks the plaintiff with
proving each element of his claim by probative, factually-sufficient evidence—even
when the defendant is noticed for trial but does not appear. Paradigm Oil, Inc. v. Retamco
Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012).
Here, trial was to the court, RR 4, which made no formal findings of fact. On
appeal, this Court infers all factual findings necessary to support the judgment, but only
insofar as there is factually-sufficient evidence to sustain them. Roberson v. Robinson, 768
S.W.2d 280, 281 (Tex. 1989). In appeal from a bench trial, legal-sufficiency and factual-
sufficiency attacks can be raised for the first time on appeal. TEX. R. APP. P. 33.1 (d); see
Sammons v. Elder, 940 S.W.2d 276, 279 (Tex. App.—Waco 1997, writ denied); Davis v.
Berger, 2000 Tex. App. LEXIS 448, *3 (Tex. App.—Dallas 2000, no pet.).
The Tarrants seek factual- and legal-sufficiency reviews of the evidence
supporting the elements of Scarbrough’s fraudulent-transfer and conspiracy claims. In
a factual-sufficiency review, this Court considers all the evidence and may reverse if the
judgment is so against the great weight of the evidence that it is clearly wrong or
7
manifestly unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).
In a legal sufficiency review the court considers the evidence in the light most favorable
to the finding, crediting favorable evidence if reasonable jurors could and disregarding
contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.2d
802, 822 (Tex. 2005).
A. Scarbrough needed to present legally- and factually-sufficient
evidence proving the elements of a fraudulent transfer.
Scarbrough’s suit raises a claim that the Tarrants made a fraudulent transfer of
Roger Tarrant’s real property and it seeks to broaden the claim’s reach through the
allegation of a conspiracy. CR 4, 5-7. The conspiracy allegation, being derivative, will
not sustain a judgment if the claim for a fraudulent transfer fails. See Tilton v. Marshall,
925 S.W.2d 672, 680-81 (Tex. 1996) (liability for conspiracy depends on participation
in some underlying tort). To succeed on the fraudulent-transfer claim, which invokes
the Texas Uniform Fraudulent Transfer Act (TUFTA), Scarbrough needed to prove
that the conveyance was made either
(a) “with actual intent to hinder, delay, or defraud” a creditor or
(b) “without receiving a reasonably equivalent value in exchange” when the
debtor:
(i) “was engaged or was about to engage in a business or a transaction
for which the remaining assets of the debtor were unreasonably
small in relation to the business or transaction” or
(ii) “intended to incur, or believed or reasonably should have believed
that the debtor would incur, debts beyond the debtor’s ability to
8
pay as they became due.” TEX. BUS. & COM. CODE ANN. §
24.005(a)(1) & (2).
Scarbrough at trial made no adequate showing or either an “actual intent to hinder” his
judgment’s collection or the absence of “a reasonably equivalent value in exchange.”
B. Scarbrough failed to prove the fraudulent-transfer elements, but
instead testified to legal “positions” and speculative “beliefs.”
Nowhere in the civil jurisprudence is the need of probative evidence greater than
with matters affecting ownership of Texas real property. Certainly, an otherwise valid
real-property conveyance should not be invalidated in the absence of probative and
factually sufficient evidence of some basis for doing so. This is where Scarbrough’s
judgment fails.
The entire trial record spans ten pages. Only six transcript pages address liability.
RR 5-10. The testimony there is probative only of the facts that:
• Scarbrough obtained a judgment against Roger and Diane Tarrant in a prior
proceeding. RR 5-6; PX A.
• At about that time, Roger signed a warranty deed conveying certain items of real
property to Justin Tarrant. RR 7; PX B.
• The deed recites that it was given in exchange for no less than five items of
consideration: (1) “[c]ash,” (2) “a note … in the principal amount of FIFTY
TWO THOUSAND THREE HUNDRED TWENTY FIVE AND NO/100
DOLLARS,” secured by a vendor’s lien and a deed of trust, (3) assumption of a
first-lien note executed by Roger Tarrant in the principal amount of $40,000, (4)
assumption of a second-lien note, also executed by Roger Tarrant, in the
principal amount of $15,000, and (5) promises to perform Roger Tarrant’s duties
under the deeds of trust associated with the first- and second-lien notes being
9
assumed and to indemnify Roger Tarrant from any loss associated with a breach
or default under the first- or second-lien deeds of trust. PX B.
• The defendants had actual knowledge of Scarbrough’s claim before the
conveyance. RR 9.
• The Tarrants’ responses to interrogatories in aid of collection indicated they had
no substantial assets. Id.
This proof is legally insufficient to sustain an implied finding either that the
Tarrants entered the conveyance with actual intent to hinder Scarbrough or that they
did not exchange reasonably equivalent value. It at most shows an approximate
correlation in time between the collection suit’s disposition and the conveyance, which
was itself a legitimate means to finance the costs incurred in defending the collection
suit—costs made necessary by Scarbrough’s suit. Because it is at least equally consistent
with the lack of actual intent to hinder as with its converse, this correlation in time is
no evidence from which to infer intent. It likewise is no evidence of the lack of an
equivalent-value exchange. Indeed, there is no evidence valuing the land Roger sold.
The only evidence probative of value is evidence of the positive value Justin gave in
exchange.
Here, it could be tempting to infer intent to hinder from the fact the land was
conveyed to an apparent insider, which is a factor the courts may consider when
evaluating a conveyance for intent to defraud. TEX. BUS. & COM. CODE ANN. § 24.005.
But the law is clear that this factor standing alone is never enough to justify judgment
that a conveyance is fraudulent. Williams v. Houston Plants & Garden World, Inc., 508 Barb.
10
R. 11, 18 (S. D. Tex. 2014) (“Williams has shown that a single badge of fraud is
present—that the transfers were made to insiders. ‘As a matter of law, a finding of
fraudulent intent cannot properly be inferred from the existence of just one badge of
fraud.’”). This is doubly true in our case, given that the deed recites substantial
consideration from Justin and is otherwise silent on the value of the real property. The
only probative inference in such a situation is that the consideration given is reasonable
equivalent to that received.
The evidence discussed above is of course also factually insufficient to sustain
any implied finding of an actual intent to hinder or of the lack of a reasonably equivalent
value given in exchange. These facts, which do not sustain a probative inference of
intent to hinder or lack of equivalent value even when considered in isolation, fall
absolutely flat in the face of Justin’s substantial consideration—including cash, a
$52,000 note, and assumption of two prior liens in a total principal amount of
$55,000—which strongly tends to negate any actual intent to hinder and lack of
reasonably equivalent consideration. Absent further probative evidence, the correlation
in time of the property’s sale to an apparent insider is thus legally and factually
insufficient. And there is no other probative evidence.
The remainder of the record respecting liability is non-probative and thus
amounts to nothing. It consists only in Scarbrough’s self-serving surmise and bare
conclusions. As stated earlier, he asserted that:
11
• It was his “position” that the property “was fraudulently transferred with the
intent to hinder, delay, or defraud” him. RR 8-9.
• He “believe[d]” the transfer was “an attempt to prevent” him from seeking to
collect on his judgment from the transferred property. Id. at 9.
• He “believe[d]” Justin Tarrant would be “an insider” and would have had some
unidentified “special knowledge or information … relating to the existence of
the property.” Id.
• It was his “position that apparently” the trust that loaned Justin a portion of the
purchase money—the D. A. Tarrant Irrevocable Trust—“was an alter ego of
Denise A. Tarrant or Roger Tarrant.” Id.
• He “believe[d]” the transfer caused him harm because the transferred property
“was one of the few … tangible assets that were available to collect.” Id. at 10.
• He “believe[d]” the Tarrants had conspired in an attempt to damage him. Id.
To qualify as probative of a fact, an item of evidence must support an inference
that the questioned fact is more likely true than not. See Calvert, 38 TEX. L. REV. “No
Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63 (1960).
Scarbrough’s “positions” and interspersed speculative personal “beliefs” will sustain no
such inference of fact, either of actual intent to hinder or transferring an asset without
receiving a reasonably equivalent value in exchange. TEX. BUS. & COM. CODE ANN. §
24.005(a). They are as a matter of law simply not probative as evidence.
A party’s “positions” are not evidence but are mere assertions or conclusions—
items to be proved by other facts. So it is with a person’s beliefs: they, too are not factual
but are mere conclusory assertions of what the party wishes or surmises the facts to be.
12
They have zero probative value and thus will not support a judgment—even when
admitted at trial without objection. City of San Antonio v. Pollock, 284 S.W.3d 809, 816
(Tex. 2009) (conclusory allegations have no probative value); Continental Coffee Prods. Co.
v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996) (employee’s subjective beliefs “’are no more
than conclusions’ and do not raise a fact issue”); accord Ed Rachal Found. v. D’Unger, 117
S.W.3d 348, 355 (Tex. App.—Corpus Christi 2003), rev’d in part on other grounds, 203
S.W.3d 330 (Tex. 2006); see generally Calvert, 38 TEX. L. REV. at 362-63.
Any belief that the transfer was intended to hinder the collectability of
Scarbrough’s judgment is speculative, pure and simple. It would be equally speculative
to conclude that the property was not given in exchange for consideration of
“reasonably equivalent value.”
Because there is factually insufficient evidence (and likely legally insufficient
evidence) to sustain implied findings of the fraudulent-transfer elements, the judgment
below should be reversed and the cause remanded for a new trial. Bennett v. McDaniel,
295 S.W.3d 644, 645 (Tex. 2009) (when the evidence at trial is legally insufficient to
sustain post-answer default judgment, the proper remedy is to remand for a new trial,
not to render).
II. Because the Tarrants lacked notice of the actual trial, due process
requires a new trial.
Due process requires that every party that has appeared in the case receive notice
of the trial. See LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989).
13
That did not happen here. A trial was scheduled for 11 a.m. on January 6. But when the
case was called that morning, the trial could not proceed, because neither side was ready.
Neither Scarbrough’s counsel nor anyone representing the defendants was present. RR
4-5. So the trial court reset trial for a time when Scarbrough’s counsel could
participate—a 1:30 p.m. session of court, which Scarbrough’s counsel could attend by
telephone. RR 4. The Tarrants were not present at this trial—they were given no chance
to participate. As the trial record indicates, no one told them or their counsel of the
rescheduled trial or of the opportunity to appear by telephone. Id. Only Scarbrough and
his counsel received that privilege and accommodation. This failure of notice and one-
way accommodation of only Scarbrough’s counsel, with no notice to the Tarrants’
counsel, obviously violated the Tarrants’ due-process rights.
The clear rule is that all parties who have answered are entitled to 45 days’ notice
of an initial trial setting, and are entitled to reasonable notice of any further or
rescheduled trial setting or merits hearing thereafter, both as a matter of Texas
procedure, TEX. R. CIV. P. 245, and of due process under the U. S. Constitution’s
Fourteenth Amendment. See LBL Oil Co., 777 S.W.2d at 390-91. Notice merely of an
initial setting does not suffice—not even when the party has failed to appear at the prior
setting. See Green v. McAdams, 857 S.W.2d 816, 819 (Tex. App.—Houston [1st Dist.]
1993, no writ) (rejecting argument that notice of initial setting was “constructive notice”
of the reset trial session); accord Worthen v. Glatzer, 1999 Tex. App. LEXIS 1913, *8 (Tex.
App.—Dallas 1999, no writ). A party who has answered merits reasonable notice of the
14
actual default-judgment hearing. In re $475,001.16, 96 S.W.3d 625, 627 (Tex. App.—
Houston [1st Dist.] 2002, no pet.); Green, 857 S.W.2d at 819 (reversing post-answer
default judgment because defendants, who failed to appear at initial setting after
receiving dismissal notice, were entitled to reasonable notice of rescheduled trial date);
Worthen, 1999 Tex. App. LEXIS 1913 at *8 (where plaintiff requested a default
judgment at the noticed September 9 setting but there was no notice given of the
September 13 setting at which the default judgment was rendered, there was a fatal lack
of notice); Maldonado, 694 S.W.2d at 87 (defendant’s failure to appear at noticed jury
selection time was not a failure to appear for trial, did not dispense with requirement
that defendant be given notice of the merits trial, and did not support entry of post-
answer default judgment). The absence of such notice requires the grant of a new trial—
without necessity of any further showing: to additionally require proof of the Craddock
elements “would violate due process.” Id.; see Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.
1988) (defendant who lacks notice of a trial setting is not required to establish a
meritorious defense under Craddock in order to obtain a new trial following a post-
answer default); see also Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 85-87 (1988).
The Tarrants’ failure to appear at the 1:30 trial was not due to inadvertence, to
misunderstanding, or to any reason but the lack of notice. The Tarrants broadly
challenged this lack of notice below, in their motion for new trial. CR 65 (“Defendants’
attorney, Jim Echols, did not receive notice of hearing for the January 6, 2017 final
hearing”; “Defendants’ attorney, Jim Echols’ non-appearance at this hearing was due
15
to not knowing the hearing was taking place, rather than due to an intentional act or
the result of conscious indifference.”). The failure to grant the requested new trial was
error.
What is more, fundamental fairness and professional courtesy should have
required that when the accommodation was afforded to Scarbrough’s counsel, notifying
him by phone and permitting him to appear at the “prove up” by telephone, an
equivalent accommodation should have been extended to the Tarrants. See Dolgencorp of
Tex., Inc. v. Lerma, 288 S.W.3d 922, 929 (Tex. 2009) (noting that “judges and lawyers
should, and in most instances do, extend common and professional courtesies to other
judges and lawyers”). The Texas Lawyer’s Creed, cited in Dolgencorp, certainly takes this
view, stating that “I will not take advantage, by causing any default or dismissal to be
rendered, when I know the identity of an opposing counsel, without first inquiring
about that counsel’s intention to proceed.” TEX. LAWYER’S CREED - A MANDATE FOR
PROFESSIONALISM, III (11). Adherence to the Creed would have required at least a
phone call to Mr. Echols to notify him of the prove up and offer to let him participate
in the hearing by telephone. Here, the record is silent on any such notice or
accommodation. As a result, the trial and judgment violated fundamental notions of
fairness and professional courtesy.
16
III. Because the record omits to prove adequate notice of even the initial
setting, the Tarrants have been deprived of their ability to show
harm.
The record fails to prove proper notice of even the initially scheduled, morning
setting, at which even Scarbrough was not ready to proceed. The court’s file contains a
“notice of setting” respecting the 11 a.m. proceeding.1 But that hearsay notice does not
prove it was sent to the Tarrants’ counsel over the challenge, in the Tarrants’ motion
for new trial, CR 65, stating that no such notice was received. The document includes
a notation “CC: Jeffrey Coe, Jim Echols.” Supp. CR __ (attached). But this is not
evidence that the document was actually mailed to Mr. Echols. And here, an inference
that notice was not sent is raised by the fact that Scarbrough’s own counsel did not
appear at the appointed setting, RR 4, and the record does not indicate he knew of it in
advance.
A failure of notice “deprives a party of his constitutional right to be present at
the hearing, to voice his objections in an appropriate manner, and results in a violation
of fundamental due process. Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Green, 857
S.W.2d at 819. Thus, when a party disputes that notice was properly sent, it falls to the
plaintiff to actually prove the matter.
It is true that notice properly sent pursuant to Rule 21a raises a
presumption that notice was received. [citation omitted] But we cannot
presume that notice was properly sent; when that is challenged, it must be
1
The Tarrants have requested that the district clerk prepare a supplemental clerk’s record consisting
of this notice. A copy of the notice of setting is attached.
17
proved according to the rule. Mathis v. Lockwood, 166 S.W.3d 743, 745
(Tex. 2005) (per curiam).
So Scarbrough was put to the task of proving the asserted notice was sent to counsel.
He failed to do so. The record reflects only that the trial court took judicial notice of its
file. RR 4. But that was insufficient.
“A certificate by a party or an attorney of record, or the return of the officer, or
the affidavit of any person showing service of a notice shall be prima facie evidence of
the fact of service.” TEX. R. CIV. P. 21a. In this case, the record contains no such
certificate, return receipt, affidavit, or other testimony purporting to certify any actual
sending of notice. This was fatal to the post-answer default judgment in Mathis v.
Lockwood—even though counsel in that case gave his oral assurance that he had served
the trial notice (an assurance that is lacking here). 166 S.W.3d at 745. 2 And without
proper evidence the notice was actually sent, there can be no presumption that counsel
received any such notice. Id. So it is here. The record contains no evidence, or even
unsworn assertion, from which to infer that the clerk actually mailed the notice of
hearing to Mr. Echols.
Moreover, the notice was ineffectual in yet a final respect: it did not identify that
the case was set for the merits trial. It said only that the case had “been set for FINAL.”
2
Here, as stated, the judgment contains a pro forma allegation that “due notice” was provided. CR
41; App. A. But that notice was effectively rebutted when Scarbrough’s counsel also failed to appear
at the appointed setting. See, e.g., Wilson v. Indus. Leasing Corp., 689 S.W.2d 496, 497 (Tex. App.—
Houston [1st Dist.] 1985, no writ) (“Where a judgment recitation [of notice] is effectively rebutted by
other evidence in the record, it is no longer taken to be true.”).
18
Supp. CR. __ (attached). In Maldonado v. Puente, a notice of setting for “jury selection”
was held insufficient notice consistent with due process to allow trial to proceed after
the defendant did not show up for jury selection. 3 694 S.W.2d at 91. Here, notice of a
setting for “FINAL” is similarly inadequate to allow a prove-up trial to proceed at a
later court session in the Tarrants’ absence. The plaintiff has the burden of proving the
defendant was served in strict compliance with the rules. Cox v. Cox, 298 S.W.3d 726,
733 (Tex. App.—Austin 2009, no pet.); Naan Props., LLC v. Affordable Power, LP, 2012
Tex. App. LEXIS 271, *5 (Tex. App.—Houston [1st Dist.] 2012, no pet).
Conclusion and Prayer
Because there is factually insufficient evidence of the required elements of a
fraudulent transfer and also because there was a lack of proper notice to the Tarrants,
the judgment below should be reversed and the cause remanded for trial.
Respectfully submitted,
__/s/ Gregory D. Smith________
Gregory D. Smith
Bar No. 18600600
SMITH LEGAL PLLC
110 N. College Ave., Suite 1120
3
What the notice of the 11 a.m. setting actually stated matters. In Maldonado v. Puente, the
parties were notified by letter to appear for jury selection “on that date” and further notified in the
same letter that their case “will be tried at a subsequent date.” 694 S.W.2d at 87. The defendants and
their counsel arrived at court 40 minutes after the appointed setting. The plaintiff had been granted a
post-answer default judgment in the meantime. On appeal, because the notice of setting was for jury
selection, and stated that trial would occur “at a subsequent date,” the failure to appear at the
appointed time for jury selection could not support a post-answer default on the merits. Id.
19
Tyler, TX 75702
Telephone: (903) 630-7165
Facsimile: (903) 609-3077
greg@smithlegaltx.com
__/s/ Jim Echols______________
Jim Echols
Bar No. 06391500
SAUNDERS, SCHMIDT & ECHOLS, P.C.
202 W. Erwin Street, Suite 200
Tyler, TX 75702
Telephone: (903) 595-3791
Facsimile: (903) 595-3796
j.m.echols@att.net
Attorneys for Appellants
20
Certificate of Service
This brief has been served on all counsel of record via e-filing on this 31st day
of July 2017.
____/s/ Gregory D. Smith________
Gregory D. Smith
Certificate of Compliance
1. This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4
because it contains 4628 words, excluding the parts of the brief exempted by
TEX. R. APP. P. 9.4(i)(2)(B).
2. This brief complies with the typeface requirements of TEX. R. APP. P. 9.4(e)
because it has been prepared in a proportionally spaced typeface using Microsoft
Word in 14-point Garamond font.
Dated: July 31, 2017.
____/s/ Gregory D. Smith________
Gregory D. Smith
21
NO. OCCV16--017-3
DANIEL R. SCARBROUGH, IN THE DISTIUCT COURT
Plaintiff
v. 3RD JUDICIAL DISTRICT ... ~
,
ROGER TARRANT,
ET AL.
Defendants OF ANDERSON COUNTY, TEXAS . -
DEFAULT JUQGME!:!T
On January 6. 2017. ca~ on tg belbeacd Plaintiffs. DANIEL R. SCAR~UGH,.
req""t for relief. Plainti!I appeared~ and by att~- r - .~y L Coe.
Oefenn, TX 75763
Consideration:
Cash and a note of "°" date executed by Grantw and payable to the omet or
The 0 . A. Tarrant Irrevocable Trust in tile pri~I amount of FIFTY TWO THOUSAND
THREE HUNDRED 1WENTY FIVE AND N0/100 DOLLARS ($52,325.00). The note is
eecure<:t by a vendOt"s Hen end •uperior tit1e retained in lht. dMd in fevor of The 0. A.
Tarrant Irrevocable Tru•t and by a deed of rtust or even date lrom Grantee to Terry M.
fhorn. trustee: and Grantee's assumption and agreement to pay, according to their
terms a first-lien note and a second llen noll!, the flf!rt lien note is executed by Grantor.
and payable to 1118 Older of Sandra J. Elis, Denise A. Tarrant, Judy K. Hyde, Janet S.
v.llson. tndependenl ex- of !he Estate of CaMn Ellgene ~. Deceased in
the principal amount of $40.000.00. The firsHien nore is secuted by deed of !rust daled
11/27/2012 and~ in t11e realprope1tyrecord$olHendenonCounty, Texas. As
further consideration Granl88 pn>mioes to keep and perform au t11e OOYenanlS and
obligations al the ll"'nlor named in that deed al trust and to indemnify, defend. and hold
Grantor harmless from any loss, ottorney's fees. expenses, or claims attributable to
breach or dera\lll of any provlslon or this assumplion by Grantee. The second-lien note
43
' 2014-00015702 11/24/201!. J:08:18 AM Page 3 0(9
•
is payable lo the Or's lien ag1inst. and superior
title lo. Ille Prcpeis
deed as being either assumed or subject to which tide is laken: validly "'"'1ing
easemenb, rights-<11-way, and prescriplive rights. whether of reeog Instruments. othet !ho<> corweyanc:u of the sur1a<:e fee
estate, Iha! .tied 1he Pr-rv; and taxes tor 2014, which Grantee essumes and agrees
to pay, bUt not ...osequent auossments tor lhat and prior ve- ciue to change in land
usage. ownership, or boCh. the payment ct which Grantor assumes.
Grantor. for the Consk!eratlon and subject to rhe Reservations ftom Conveyanoe
and the Exceptions to Conveyance and Warranry, grants. sells, and convoys to Grantee
the Property, together will> aa end singulat the rights and appurtenances thereto in any
way belonging. to haw and to hold~ to Grameo and Granlee's hod, aua:essora, and
assigns lore...r. Gianto< binds Grantor and Grantor's ~ and ~ to wanant
and foreVet defend all and singular the Pn:>perty to G~ - Grantee's ters.
successors. and assigns against tNery person whomsoever lawfulty daiming or to claim
the samo 0< any part thereof, ~lle Trust and "' transferred to The 0 . A.
Tarrant lnevoeable Trust willlou( recou.... against Granto<.
When lite context roqui1es. singula1 nouns and p1onouns indude the plural.
~R2~
STATE OF TEXAS )
COUNTY OF ANDERSON )
This instrum"nt was aclcnowtedged befote me on '//~./ .Ji.~ 2014 by
RoGER TARRANT
AnER 1tf00ftOINO Rln'\.IRN TQ;
T...,,.
--
LM- Otilc. ol Ill. Tbom
totL~$1Ni1t
.,........._TX7901
"°".,,..,...
45
2014-00015702 1112412014 , :08: 18 AM Page 5of9
.
County Oeed ~; WITNESS:. 18' Fotl:ed Elm SOWi SO cfesM• Eal 8.0 reel;
THENCE Norlli 0 ~ 3S - 3 7 seCOo SoullnWSI comet of !ht Eva
M.m. ~ ~07 ..... Wt\ •Uf'j8yed .,... - and being South 0 oc1 o..i. SouO> -'5 <1ogrees
Wost ~.2 faet. It Post OokSc..al 85 degroos w..t 39.0 feet;
THENCE SOUltt0~41 rrirutes30<
-&uoinglhe EM\ ~OOloc>I
ollhe 55.<1!19 aa. lood"'""'"
lo ll..J. Tanani b)l IWold James Snllh ancl ...tfe l\laJla
1f"'Wsailibby4"c1~=.2$.L1~9ridreooidedlnVOllJma 1284,f'eg0633ollhe
~ Ccar\11' Dejlcj · . "'lol lt8cl. orperool of land belog fT'°'8 ~
dH<:rlbOdl>ymotes--.. - :
~a at• 1.12'konrod b.rd atlle Nonr 111tcomerdC. 55A99 acre trm
- Iha NoaO •Ill eoa,., Of "8 Cow. l. 0-.. 51.ney. In !he Wnl h o1 u.i £\ta -
--.ze.w--~ ..-
lHENCESOtmfo~ 35"*"-37- Ea&t. a1 so.oo root paso lho
So"-lOomor"' Ilia 2&.07oao1ncllOll In all 3990.13footloa112' Iron rod fouod al
"' S.UU-11Cornenroclsel ln
-.,-4244;
~NORTH 0 ~ 3S "*'"'as7...,00.,s W•sl 3990.73 feYacl · 2aae~ asThitdTmtln.-
-•-o1011>aaa1tae1
THENCE: S89 ~ 43'!1b'W. 1442.63 root with the c:ent..-llno ol a _.;it
\llllllic IOad ond ~ 1n fllO Nolthoall 111\e or • 2.164 acre lt1ICI
- In v..... S81 Poge 119() of a.. Dood - . of
-~-Wlneq:A 112' t. R. bearsNa9c!A>gRes
.a'5S'E18.38 feet
tlOllUIT "A" CONTINVl:D
47
2014-00015702 11/24/2014 ; :08:18 AM Page 7 of 9
..
THBICE: N88 "E !133.18 feel'"'"'- Nortll h ol - 2 "10
rnict loo 1IT ~ II. set •• Ille Easl fne or 111e· f. C.tenovo 5mo)I
.;nd lhe Weot ine al Ulo C. l. Owuns SUtvey
H3rold J . SmlU>,SS.499 AC•• H"'1detso!!Co, OWeMA-1182. C8ZenOVaA-129, Parks A.-
647
a2aaolalclor_.ollW'd,a~olllleC. L OMrtoSUNey ,...129.
T-.elsoapatQflhal14~KThfnl'no01..-dodfnV~_!`` ...
Hendencn=
ol lbe Deed di~ of Hendinon COdllY. T - and belrQ rrcwe -• .....criied ..,
---1bwitfnE>dil>ll"A"- ~andcna&oapmlhoteof.
l?'IACT THREE
~lholww~·~".!,dor-dland,•lllPtadlllHondmonCounlY.Si.&eolTexa1.1<1
::.,~ • ~""" ~ Absfnc:I No. 3-47: rowevei, In .omo fnslnilT160la tiled 1or
·``Ille C<>t.n,Clarlt .. - ~. Taassald !rad b in41C!ed mu>. c.
L ~-&owy, Ali$hct No. 1152. llw em>r. Said trac1 or porool ol land b moto
pa._., y met.. ""......,• •• follool!s; -
. BEGrtaoaNG ala 1121n.l!uodel8"'-comctoflhe C. l. Owen• SOMY.
A.bsllael No. 1 ISZ - • 2>I fl). Post Oak Bts. - 73 Deg. 63 Mh East 38.30 r..~
orod In. 16 In. Elm h- 75 dog. 29 ..... Ea1' 3U fut
1l!ENCE NOR"lll 00 0111- 35 Mio. 3 7Sec. Wal, and ol~ a feooe. a 41sta:ice ol
&3l.23tectlb • 112n Iran llodott. l b -""*"'111111tac1; Aid IJ(llnl belnil rn lhe
-In.-
Soulh 8olJndory UleolllleX.rlaMllotTroct or parcol of land;
1liEHCE Horii 119 !l!oll. 43 Mil. $5 Soc. ~. aiOl'O • · fooce .and Ille Sovth
Boundacy Una ol Ille ..id XelP l.1lllo( lrllle-c.ir-olllltnct.onda-On!y On payment of
the Obligation and all other amounts secured by this deed of trust. this deed of trust will
have no further effect and Lender will release it at Granto(s e.>ns, lender is subnc:e
policies covering the PIOpel1y ei11>er to reduce 1ha Ob!t!alion or to repair or replace
da~ or destroyed im_,,ts covered by ll1o poUcy. If the Property i• Gn>ntofs
primary resf8ie Code, the Benefklary hereby notifies Ille Grantor as follows:
(A) the Gr.antor i. required to:
(i) kffp the collateral lnaured •g.ainst damage I n the
amount the len.der apeciftea;
(iJ) purchase the insurance from an insurer that Is
authortzed to do bus.lness In the ~:ta1e of Texas or an
eligible surplus Hnn in.urw; and
(iii) name the Lender a• the P6raon to be paid under the
pollcy in the event of a loaa;
(B) th• Grantor must, if requl...S by the Lender, deliver to the
Lander• copy of the policy and proof of lhe payment of premiuma; and
52
... 2014-00015703
- - · - ·
11/24/2014 ; :08:18 AM Page 6 ot 16
(C) if the Grantor 11111s to ,,_t any requirement lisbld In Penigraph
(A) ot (B), the Lender may obtain collateral pro-n Insurance on behalf of Ille
Grantor at the Granto(• expense.
c. 7. It e delaull 8'Cists In payment of the Obligation or ~ of Grantor
obligations and the delaoll oontinoes aftet" ltr'/ requRd notice of the delaul and the
time allowed to cure, Lender may·
a. declare the unpaid principal balance and eamed interesr on the
ObligaOOn Immediately due;
b. exen:iso Lender's rights with respec1 to rent under the Texas
Property Code as lflen in effect;
c. direct Trustee to foreclose this lien. in which case lender or
Lendel's agent will cause notice of the foredosure sale to be given
as prtMded by the Texas Property Code as then in ellect; and
d. purchase the Property at any foreclosure eale by offering the
h;ghesl bid and then have the bid credited on the Obligation.
C.8. I.ender may rernedY any default wilhooJt waiving h and may waive any
defaUlt without wat.Ong any prior or subsequent OOfaul .
0. Trus...,·s Rights and Duties
It dOected by lender to foteclose this lien, Trustee w;a.
D. f . either personally or by agent give notice ol lhe foreclosure sate as
required by Ille Te>eas Property Code as IN>n In effect;
D.2 sell and convey all or part of Ille Property "AS IS" to the highest bidder for
cash with a general watranly binding G"'"". subj@ct to the Prior Lien and to the Othef
Exceptions to Conveyance and Warranly and wi1hout rep
Truslefe payment to Granto<:
and
d to Gtanror, any balance; and
0 .4. be ;nc1emnlflod, held harmless. and defended by l ender against all costs.
°'
expenses. and eabiities incl.rrred by Trustee for acting in 1he e>aecution enforcement
of lhe llUst Ctea1ed by !his deed of IJuSI. wtrid1 inCludes al court and other costs,
including attorney's fees, inCUTed by Tl\l5lee in defense of any action or proceeding
taken agalns1 Trustee in that capacity.
E. Gject to an action for fon:i>le
detainer.
E.2. Recitals in any trusteo'• deed conveying lhe Propetty will be pre&umed to
be tl'l.le.
E.3. Proceeding under this deed of trust llling suit for foreclosure. Of pursuing
any OUie< remedy wil noi constilule an election of "1'ledies.
E. 4.
This lien will remain superior to lien& leter created even if the time of
payment of au or paal o1 the debt or, if the principal al the debt has been paid. relmded. Tm
ptoYislon oveited by
law.
E.10. When the context requinn. singular nouns and pde(s prior written
consent lender may declare the Ob!Ogalion immediately payable and invoke arry
remedies pnMded in lllis deed at trust lot default. If tile Properly is racidential real
piopeny conlairmg !ewe< than five dweling unils °'a rHidential rnanul:lcl\lred home,
this pn>visioo does not apply to (a) a subordinate lien or encumbrance that does not
transfer rights of occupancy of the "'-1Y: (b) cn:iotion ol a purel'lG&e-ieh the spouse of G!her costs of enforcing lenders rights under this deed of trust if this deed of b\1$1
Is placed in the hands of an attorney for enforcement
E21. If any Per d ocuments. or any
combination ol tllo>e actions or doeurnents that bom>wet may NIYe signod « receMod
with rGSpe<;t to the loan fttJm the financial 0 . - . evidence by the Noto; but the tenn
"Loan AgrMments" e.pressly excludes -r pr Charge card; (b) an <>pen-end
&eoount (as defined in Article 5069-1.0 1. Vemon's Texas Civil Sbotues) intended 0<
used primariy for per.;onal. family oc household U$$.
57
'.
2014-00015703 11124/2014 ,:08: 18 AM Page 11 of 16
STATE OF TEXAS )
COUNTY OF ANDERSON )
This instnlment was adcnowlen expires: - - -- - -
An!ll`` n)"
&,.,.. OllD of Terry Ill. TIIClnl
SOIC~ Sl•MI
.._.....,..,.,TX ~ I
· lO-
58
2014-00015703 11124/2014 .:08:18 AM Page 12 of 16
.
Oot#11y Deed Rec:onlo: WllllESS: 111' Fctted 6m SWUI 50 ~cees Eat 6.0 feel:
THEltCE NOl come< of tho Eva
MMio RictJaldson 28.87 aae ltacl •llWl'Od !NS dale and belnll Sout> 0 deg'"' 35
-.Sailif87 tlOOOl1Cls fatSO.oorwfiomfltNOlfhNslOOla llodlwsl Comer; , S(fl'Os\ oak South 45 ~
Wosl,2~8" Po! 1942.SS fool to tl>o place of
~ and containing 80:92 acres of land.
lnclldlng a 1s-..icro road •asomant-dtsaibOd ••-=
Ml>alcertaillot,ltlc(.«OOIC8iol-•
-~. ~hC. L °"" r1dlll-Coully.Tem.onlho Fei>c
SU!'fty, .t.118211nd be1no Iha East 1!i.OOIOo\
of 0..55.49$...,..hd~ bD..l T""'byHorold .-Smllh~wlre Mllla
K9y Smllb by-._~2S, 1GeQ end tt<0rdod InVolllma 12&4, Pogo 8118olllie
~ Co<.;i, Deocl ReiUt!J_ lrd lol lnlel or ptwel ofland being men pai1lctiartf
clesatb9dbymolo10ftdboundsasfolcMs:
"'° ~-• 112'Rnlodbr.:latbe--oflho5$Jl~t1Ct·lla:t
b Nc"ho 1t cioad 424'4;
nENce HOfUH o - 35 - 37 ...,.;,.,. w..13llll0.73 ,.., •• • 112"
- "'.etIn 111SHoct\ llno oil!» SS.4911 ocn tract;
l\lENCE NORni 89 degrses 44 mltYJl.. ea.i 15.00 - to !ho ploce bOQ1nninCI. ·
lAACT Tv,:O
AllthatClftalnlol, ln>Clor poroelof- S1"1otod In fheC. LOW.no Surv.y Absltad
1182,the``~-129and.,_FolxPatb$U!W)'Abs...Cl647,
Hencl....,.;~, T·Ml~aporblda'*-d•carfaf>12.18Cl9!nld-.. Seg ...... par1lc;ulai1yd....ibedbyn>eles
...,., bounds .. rot"" .
'THENCE:
6811~43~37.i;Qfeel f<>r!he moot Souttiem-
-oltia- .
l«lO dlogl.u Y/3TW 2645.75 foel beW19 :r7.S fee! ........ ID Vlt
_,,..... hol U.. Tho EXC!!i1't
51
• 2014-00015703 11/24/2014> ..08:18 AM Page 15 of 16
•
- -
THENCE SOIJ'O!Oo°'9.3SMn i17 SeC. Eu~ a!ctlg o r.nce. •disbnooolB3f.SO
f$et IO a 112 In. 1toi1RZJdot1h0 Northe¥t ~ ol ... C. L 0wooo SUrvey;
62
.- 2014-00015703 11/24/2014· .08: 18 AM P"e
-~ 16 ol 16
£XHJ..81T "'A" CO~IJN UtO
~
".
-· ··- . - -·-- ---- ---·- - - -·-,
..
·.
•
:•
'. I .·,
;I
..._
.
: l
.,
~
63
( r·
•
me co~
ANOERSOH COUNTY OISTRICT COUttT
SCIO 14, Church Stfffi. ?-.)k.-rurie. 1X /$801
JUDGE Mark C3Ihoon
NOIJCE Of SETTING
Fill: CO?Y
IN RE: CAUSf NO: OCCV16-017·J OATE: NOVf'tnbe'f 07. 201~
OJ\NfCL SCAR3ROUCH
ROGER TAR.RANT.DENIS!: I ARRA.NT.JUSTIN lARRANT,O.A. TAAAl\NT IR.REVOCABU. TRUST
TAt:f NOTICE that the AboV(< style and numbe1<.-d cause has b~ set for FINAL on rhe Glh day of .tanua1y, 2017 at l l:OOAM, IN THE
ANDERS<>t.J COUNTY COURTI IOUSE. PAl.E$11NE, Tr)(AS,
Janlet Slaples
01$tti('l Clerk. Anders.on County
CC; Jeffr.!')'Coe; Jim Echols