Jeremie Gordon and Amber Arnold-Gordon v. James B. Nickerson and Julia A. Nickerson, Trustees of the Nickerson Revocable Living Trust ( 2016 )


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  •                                                                                   ACCEPTED
    03-16-00071-CV
    12444515
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    8/30/2016 1:32:30 PM
    JEFFREY D. KYLE
    CLERK
    Appeal Cause No. 03-16-00071-CV
    FILED IN
    3rd COURT OF APPEALS
    In the                        AUSTIN, TEXAS
    Third Court of Appeals            8/30/2016 1:32:30 PM
    Austin, Texas                   JEFFREY D. KYLE
    Clerk
    Jeremie Gordon and Amber Arnold-Gordon,
    Appellants/Defendants,
    v.
    James B. Nickerson and Julia A. Nickerson, Trustees of the Nickerson
    Revocable
    Living Trust,
    Appellees/Plaintiffs.
    From the 250th District Court for Travis County, Cause No. D-1-GN-15-
    000917,
    The Honorable Karin Crump, Presiding.
    APPELLEES’ BRIEF IN RESPONSE
    Jason W. Snell
    Bar No. 24013540
    John Robert Skrabanek
    Bar No. 24070631
    The Snell Law Firm, P.L.L.C.
    221 West 6th Street, Suite 900
    Austin, Texas 78701
    Telephone: (512) 477-5291
    Facsimile: (512) 477-5294
    Email:     firm@snellfirm.com
    ATTORNEYS FOR APPELLEES
    TABLE OF CONTENTS
    TABLE OF CONTENTS ........................................................................................... i
    TABLE OF AUTHORITIES ................................................................................... iv
    STATEMENT REGARDING ORAL ARGUMENT ........................................... viii
    COUNTERSTATEMENT OF THE CASE ...............................................................1
    I.        SUMMARY OF APPELLEES’ RESPONSE...............................................6
    II.       ARGUMENT IN RESPONSE ......................................................................7
    A. Two separate standards of review apply to the trial court’s final judgment
    in this case. ....................................................................................................7
    1. The standard of review in an appeal from a permanent injunction is
    whether a clear abuse of discretion occurred. ........................................7
    2. The standard of review in an appeal from the confirmation of an
    arbitrator’s award is de novo but “extremely narrow.” ..........................8
    B. The Gordons waived all arguments regarding the illegality of the contract
    by failing to object to the district court. ........................................................9
    C. The contract in question is not illegal. ........................................................12
    1. There is no illegality on the face of the contract. ...................................... 12
    2. Even if the contract were illegal in theory, it is not void because it can
    be performed in a legal manner. .................................................................... 14
    D. The district court’s final judgment resolves any issues regarding the
    potential illegality of the contract. ..............................................................16
    1. Texas Property Code § 12.002(g) allows the property to be subdivided
    and sold through a court order. ........................................................... 16
    i
    2. The district court’s final judgment orders the property to be sold and is
    therefore a “partition by a court” under Property Code § 12.002(g). ....
    .... ……………………………………………………………………17
    3. The Gordons’ fear of criminal prosecution is unfounded .................. 19
    E. The district court did not modify the arbitrator’s ruling. ............................19
    1. The plain text of the district court’s order confirms the ruling. ...........19
    2. The additional damages awarded to the Nickersons were not related to
    arbitration and therefore are not a modification to the arbitrator’s
    award.....................................................................................................20
    3. The district court’s award of additional damages is a “cost” or
    “disbursement” under Civil Practice & Remedies Code § 171.091(b).
    ..............................................................................................................21
    F. The district court did not err in awarding attorney’s fees. ..........................22
    1. Fees were available under Civil Practice & Remedies Code § 38.001
    for breach of the MSA. .........................................................................22
    2. Attorney’s fees were available for efforts to confirm the arbitration
    award.....................................................................................................25
    3. The fees were not “non-segregated.”....................................................25
    G. All the remaining points of error asserted by the Gordons are without
    merit. ...........................................................................................................27
    III.   CONCLUSION AND PRAYER FOR RELIEF .........................................30
    CERTIFICATE OF COMPLIANCE ...................................................................32
    CERTIFICATE OF SERVICE ............................................................................32
    ii
    APPENDIX………………………………………………………………………33
    iii
    TABLE OF AUTHORITIES
    Cases
    After Hours, Inc. v. Sherrard, 
    456 S.W.2d 227
    , 229 (Tex. App.—Austin 1970,
    rev’d on other grounds) ........................................................................................13
    Air Routing Int’l Corp. v. Britannia Airways, Ltd., 
    150 S.W.3d 682
    (Tex. App.—
    Houston [14th Dist.] 2004, no pet.) ......................................................................27
    Bailey & Williams v. Westfall, 
    727 S.W.2d 86
    , 90 (Tex. App.—Dallas 1987, writ
    ref’d n.r.e.) ..............................................................................................................9
    Bank of Am., N.A. v. Hubler, 
    211 S.W.3d 859
    , 865 (Tex. App.—Waco 2006, pet.
    granted, judgm’t vacated w.r.m.)..........................................................................23
    CRC-Evans Pipeline Int’l v. Myers, 
    927 S.W.2d 259
    , 262 (Tex. App.—Houston
    [1st Dist.] 1996, no writ) ........................................................................................8
    Crossmark, Inc. v. Hazar, 
    124 S.W.3d 422
    , 429 (Tex. App.—Dallas 2004, pet.
    denied) ............................................................................................................. 9, 19
    CVN Group, Inc. v. Delgado, 
    95 S.W.3d 234
    , 238-39 (Tex. 2002) ..........................9
    Executone Info. Sys., Inc. v. Davis, 
    26 F.3d 1314
    , 1331 (5th Cir. 1994) ................25
    Franco v. Slavonic Mut. Fire Ins., 
    154 S.W.3d 777
    , 784-85 (Tex. App.—Houston
    [14th Dist.] 2004, no pet.) ....................................................................................12
    Franklin v. Jackson, 
    847 S.W.2d 306
    , 309, 310 (Tex. App.—El Paso 1992, writ
    denied) ........................................................................................................... 14, 15
    Herring v. Heron Lakes Estates Owners Association, No. 14-09-00772-CV, 2011
    Tex. App. LEXIS 5 (Tex. App.—Houston [14th Dist.] 2011, pet. dismissed .........
    ....................................................................................................................... 24, 25
    Hisaw & Assoc. Gen. Contractors, Inc. v. Cornerstone Concrete Sys., Inc., 
    115 S.W.3d 16
    , 18 (Tex. App.—Fort Worth 2003, pet. denied) ............................ 9, 27
    iv
    In re Chestnut Energy Partners, Inc., 
    300 S.W.3d 386
    , 397 (Tex. App.—Dallas
    2009, pet. denied) ...................................................................................................8
    IPCO-G & C Joint Venture v. A.B. Chance Co., 
    65 S.W.3d 252
    , 255-56 (Tex.
    App.—Houston [1st Dist.] 2001, pet. denied)........................................................9
    Lee v. Bowles, 
    397 S.W.2d 923
    , 926 (Tex. Civ. App.—San Antonio 1965, no writ)
    ................................................................................................................................7
    Lewis v. Davis, 
    145 Tex. 468
    , 472, 
    199 S.W.2d 146
    , 148-49 (1947)…………13, 14
    Lincoln Nat’l Life Ins. Co. v. Rittman, 
    790 S.W.2d 791
    , 794 (Tex. App.—Houston
    [14th Dist.] 1990, no writ) ....................................................................................30
    Mariner Fin. Group, 
    Inc., 79 S.W.3d at 35
    ...............................................................8
    McDonald v. State, 
    179 S.W.3d 571
    , 576 (Tex. Crim. App. 2005) ..........................8
    Mullin v. Nash-El Paso Motor Co., 
    250 S.W. 472
    , 475 (Tex. Civ. App.—El Paso
    1923, writ ref’d) ....................................................................................................13
    Nat’l Bank v. Sandia Mortg. Corp., 
    872 F.2d 692
    (5th Cir. 1989)..........................23
    Priest v. Texas Animal Health Comm’n., 
    780 S.W.2d 874
    , 875-876 (Tex. App.—
    Dallas 1989, no writ)) .............................................................................................7
    Scoville v. Springpark Homeowner’s Association, Inc., 
    784 S.W.2d 498
    , 502 (Tex.
    App.—Dallas 1990, writ denied)..........................................................................13
    Stage Stores, Inc. v. Gunnerson, 
    477 S.W.3d 848
    , 863-64 (Tex. App.—Houston
    [1st Dist.] 2015, no pet.) .......................................................................................25
    Statewide Remodeling, Inc. v. Williams, 
    244 S.W.3d 564
    , 567-68 (Tex. App.—
    Dallas 2008, no pet.) ...............................................................................................9
    Teleometrics Int’l, Inc. v. Hall, 
    922 S.W.2d 189
    , 193 (Tex. App.—Houston [1st
    Dist.] 1995, writ denied) .........................................................................................8
    TMC Worldwide, L.P. v. Gray, 
    178 S.W.3d 29
    , 36 (Tex. App.—Houston [1st Dist.]
    2005, no pet.) ..........................................................................................................8
    Tyra v. Houston, 
    822 S.W.2d 626
    , 631 (Tex. 1991)........................................... 7, 27
    v
    Wade v. Jones, 
    526 S.W.2d 160
    , 162-63 (Tex. Civ. App.—Dallas 1975, no writ).....
    ....................................................................................................................... 14, 15
    Wal-Mart Stores v. McKenzie, 
    997 S.W.2d 278
    , 280 (Tex. 1999) ................... 12, 21
    Statutes
    Black’s Law Dictionary (9th Ed.) (2009) ......................................................... 18, 
    21 Tex. Civ
    . Prac. & Rem. Code § 171.091(b) .............................................................
    21 Tex. Civ
    . Prac. & Rem. Code § 171.091(b)(1) ........................................................22
    Tex. Civ. Prac. & Rem. Code § 171.091(b)(2) ........................................................
    21 Tex. Civ
    . Prac. & Rem. Code § 38.001 ............................................................ 22, 
    23 Tex. Civ
    . Prac. & Rem. Code § 38.001(8) ........................................................ 23, 31
    Tex. Loc. Gov’t Code § 212.004 ................................................................................9
    Tex. Loc. Gov’t Code § 232.001 ................................................................................9
    Tex. Loc. Gov’t Code § 212.018(a) .........................................................................19
    Tex. R. App. P. 33.1........................................................................................... 11, 21
    Tex. R. App. P. 44.1(a) .............................................................................................27
    Tex. R. Civ. P. 43.4 ..................................................................................................31
    Tex. R. Civ. P. 683 ............................................................................................ 27, 29
    Tex. Prop. Code § 12.002(c). ...................................................................................17
    Tex. Prop. Code § 12.002(g) ....................................................................... 16, 17, 18
    vi
    STATEMENT REGARDING ORAL ARGUMENT
    Appellees do not believe that oral argument is necessary in this matter. The
    written record is substantially developed such that oral argument would not
    reasonably aid the Court’s decisional process.
    vii
    COUNTERSTATEMENT OF THE CASE
    This is an appeal from Appellees James B. Nickerson and Julia A.
    Nickerson’s (“the Nickersons”) suit against Appellants Jeremie Gordon and Amber
    Arnold-Gordon (“the Gordons”) to compel the Gordons to sell a portion of their lot
    to the Nickersons. The Nickersons own a home located at 14258 FM 2769,
    Leander, TX 78641, where they live with their three children and use as their
    family homestead. The Gordons own the adjacent lot, which is not their primary
    residence. C.R. at 46. The prior owners of both lots in question signed a Well Use
    Easement Agreement (“easement”) that grants the Nickersons an “irrevocable,
    exclusive, perpetual easement” to use the water well on the Gordons property,
    which serves as the sole source of water to the Nickersons’ homestead property.
    C.R. at 13-18. The owners prior to the Nickersons paid for the costs of using and
    maintaining the well and also used it as their sole source of water dating as far
    back as 1995. C.R. at 46 ¶ 14-16; C.R. at 19-24.
    In January 2015, Jeremie Gordon wrote to the Nickersons informing them of
    his intention to disconnect the well piping so that the Nickersons would no longer
    be able to use the well. C.R. at 18 ¶ 4; C.R. at 29. The Nickersons then filed suit
    against the Gordons to prevent the Gordons from taking their only access to
    potable water.
    Page 1 of 33
    On May 11, 2015, after mediation with Claude Ducloux (“mediator” or
    “arbitrator”), the parties reached an arrangement whereby the Nickersons agreed to
    buy the portion of the Gordons’ land on which the well was located (the
    “conveyance property”) outright for $32,500.00, thereby resolving any issues
    surrounding the Nickersons’ access to the well via the easement. C.R. at 67-69.
    The negotiated Mediated Settlement Agreement (“MSA”) between the parties
    called for the Nickersons to survey the portion of the property they were buying
    and to close within sixty days. 
    Id. at 67
    ¶ 1. The parties also agreed that “the rights
    of [the Nickersons] to continued use of the well shall be exclusive and remain
    uninterrupted.” 
    Id. ¶ 8.
    Thereafter, the parties would work together to vacate the
    prior easement agreement. 
    Id. ¶ 4.
    Finally, the parties agreed to arbitrate any
    disputes related to the agreement with the arbitrator and that such arbitration would
    be binding on the parties. 
    Id. at 68.
    Thereafter, a dispute arose surrounding the placement of the conveyance
    property’s boundary line. This dispute was successfully arbitrated in favor of the
    Nickersons. C.R. at 57-58. A second dispute then arose after the parties disputed
    whether the property had to be replatted prior to conveyance. The arbitrator again
    found in favor of the Nickersons and issued a very thoughtful ruling that the
    property could be conveyed by metes and bounds, with the understanding and
    Page 2 of 33
    expectation that it would not be eligible for city services, and the property did not
    need to be replatted. C.R. at 60-65.
    The arbitrator issued his ruling that the sale should move forward on August
    27, 2015. Over the next two weeks, presumably out of malice or animus, Mr.
    Gordon then:
    Physically excluded the surveyor, Chuck Walker, from the
    conveyance property to prevent completing the necessary survey.
    Posted numerous “No Trespassing” signs on the conveyance property
    and strung up a barbed wire fence within mere feet of the Nickerson
    children’s play area and trampoline.
    Cruelly cut down at least eight mature, healthy trees on the
    conveyance property with a chainsaw, leaving three-foot tall stumps
    in their place.
    See C.R. at 49-51 ¶¶ 22-30.
    The Nickersons sought a temporary injunction to, amongst other things, stop
    Mr. Gordon from intentionally destroying the land he was already contractually
    obligated to sell them. C.R. at 51-53. On September 24, 2015, the trial court held a
    hearing on the temporary injunction, where each of Mr. Gordon’s bad acts was
    well-documented and received into evidence by the court. See, e.g., 6 R.R. at 5-19
    Page 3 of 33
    (Exh. 1). The court granted the Nickersons’ application for temporary injunction
    and set the case for a final hearing. C.R. at 101-03.
    The final hearing occurred on October 21, 2015. Prior to the hearing, both
    the Nickersons and the Gordons sought confirmation of the arbitrator’s award and
    asked the trial court to approve the sale of the property. See C.R. at 45-55, 105-11.
    At the final hearing, the district court:
    Confirmed the arbitration award in its entirety;
    Ordered the Gordons to complete the sale of the property to the
    Nickersons;
    Ordered the Gordons to pay the Nickersons an additional $8,571.00
    for the cost to replace the eight mature trees that Mr. Gordon cut
    down;
    Awarded the Nickersons $9,563.48 in reasonable and necessary
    attorney’s fees for the Gordons’ willful breach of the MSA and the
    effort expended by the Nickersons in having to confirm the arbitration
    award;
    Page 4 of 33
    Entered a permanent injunction preventing the Gordons’ from further
    defacing or damaging the property prior to its sale to the Gordons.1
    C.R. at 124-26.
    After the court entered its final judgment, the Gordons asked for findings of
    fact and conclusions of law. C.R. at 143-44. The court issued its findings on
    November 30, 2015. C.R. at 162-65. The Gordons then filed a motion for new trial
    on December 8, C.R. at 166-76, which the court denied on January 6, 2017. C.R. at
    187.2 Rather than simply allow the sale of the property to move forward, which at
    this point had already been mediated, bindingly arbitrated, and affirmed by the
    district court, and which the Gordons had actively sought to occur at all prior
    stages of the dispute before they malevolently and permanently altered the nature
    of the conveyance property, the Gordons filed a notice of appeal on February 4,
    2016, and this appeal followed. C.R. at 188-89.
    1
    Though in substance the district court issued a permanent injunction, in reality, should this
    Court affirm and approve the ultimate transfer of the property, the injunction is only temporary
    because the actions it prohibits the Gordons from taking will all be moot once the conveyance
    property is owned by the Nickersons.
    2
    During this period, in accordance with the district court’s final judgment, the Nickersons hired
    an attorney and title company to prepare the necessary paperwork to effectuate the sale. C.R. at
    125 ¶ 5. The Nickersons also placed the entire purchase price into escrow, where it has remained
    since. 4 R.R. at 24:20-25. Despite this, the Gordons refuse to sign the deed in violation of the
    district court’s order even though the Nickersons stand ready to complete the sale. See C.R. at
    126 (“IT IS FURTHER ORDERED . . . that Plaintiffs shall have all writs of execution,
    possession, and other process necessary to enforce this judgment.”).
    Page 5 of 33
    I.     SUMMARY OF APPELLEES’ RESPONSE
    Even though the Gordons negotiated to sell the conveyance property to the
    Nickersons and signed a valid, legally binding contract to do so, and even though
    they wished to move forward with the sale at arbitration and at all prior
    proceedings before the district court, for the very first time on appeal, they request
    this Court to declare the MSA illegal and void and to prevent the property from
    being sold. Not only did the Gordons not even formally plead the defense of
    illegality before the district court, they actively asked the court to bless the sale of
    the property at every prior phase of this litigation. Under basic principles of
    fairness, equity, and the rules regarding preservation of error, this Court should
    preclude the Gordons from even seeking the relief they now request, namely a
    reversal of all of their prior positions.
    Furthermore, though the Gordons now request this Court to declare the MSA
    illegal, the MSA is legal on its face, and its legality was further validated in
    arbitration and the district court’s final judgment that implicitly affirmed the same.
    Finally, and perhaps most importantly, the Gordons ignore the applicable
    standard of review throughout their lengthy appellate brief. As will be shown infra,
    this Court’s review of the trial court’s actions is an “extremely narrow” review to
    determine only whether the trial court showed a “clear abuse of discretion.” Each
    and every one of the Gordons’ points of error was either not preserved for judicial
    Page 6 of 33
    review with the lower court or does not constitute reversible error under the
    applicable standards of review. In any event, the record is clear that the district
    court committed no reversible error, and this court should AFFIRM its judgment.
    II.    ARGUMENT IN RESPONSE
    A.    Two separate standards of review apply to the trial court’s final
    judgment in this case.
    The final judgment from which the Gordons appeal accomplished two
    things. First, it confirmed the arbitrator’s June 5 and August 27, 2015 awards.
    C.R. at 125 ¶ 1. Second, it granted a permanent injunction to the Nickersons to
    prevent the Gordons from taking specific actions with regard to the property. 
    Id. at 126.
    These two separate actions carry separate standards of review.
    1.    The standard of review in an appeal from a permanent injunction
    is whether a clear abuse of discretion occurred.
    The decision whether to grant a permanent or temporary injunction is
    ordinarily within the sound discretion of the trial court. Lee v. Bowles, 
    397 S.W.2d 923
    , 926 (Tex. Civ. App.—San Antonio 1965, no writ). On appeal, review is
    limited to whether the trial court’s ruling constituted a clear abuse of discretion.
    Tyra v. Houston, 
    822 S.W.2d 626
    , 631 (Tex. 1991) (citing Priest v. Texas Animal
    Health Comm’n., 
    780 S.W.2d 874
    , 875-876 (Tex. App.—Dallas 1989, no writ)).
    Texas courts have opined that a clear abuse of discretion occurs when the trial
    court’s “decision is so clearly wrong as to lie outside the zone within which
    Page 7 of 33
    reasonable persons might disagree.” McDonald v. State, 
    179 S.W.3d 571
    , 576
    (Tex. Crim. App. 2005). Upon review, appellate courts are prohibited from
    substituting their judgment for the trial court unless the trial court’s action was so
    arbitrary that it exceeded the bounds of reasonable discretion. TMC Worldwide,
    L.P. v. Gray, 
    178 S.W.3d 29
    , 36 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
    Further, in reviewing an order granting or denying a temporary injunction, all
    legitimate inferences from the evidence are reviewed in a manner most favorable
    to the trial court’s judgment. 
    Id. (citing CRC-Evans
    Pipeline Int’l v. Myers, 
    927 S.W.2d 259
    , 262 (Tex. App.—Houston [1st Dist.] 1996, no writ)).
    2.      The standard of review in an appeal from the confirmation of an
    arbitrator’s award is de novo but “extremely narrow.”
    In this case, both parties filed motions to confirm the arbitration awards
    instead of motions for summary judgment on the arbitration awards. C.R. at 53,
    105. For this reason,3 review of the trial court’s decision to confirm the arbitration
    award is de novo, and an appellate court may review the entire record. In re
    Chestnut Energy Partners, Inc., 
    300 S.W.3d 386
    , 397 (Tex. App.—Dallas 2009,
    pet. denied). Because Texas law favors arbitration, however, review is “extremely
    3
    The standard of review applicable to a judgment confirming an arbitration award is affected by
    the nature of the proceedings utilized by the trial court. See Mariner Fin. Group, 
    Inc., 79 S.W.3d at 35
    (affirming court of appeals’ judgment applying summary judgment standard of review to
    judgment obtained via summary judgment). But the summary judgment standard of review is
    inapplicable to a motion to confirm an arbitration award. See Teleometrics Int’l, Inc. v. Hall, 
    922 S.W.2d 189
    , 193 (Tex. App.—Houston [1st Dist.] 1995, writ denied).
    Page 8 of 33
    narrow.” See Hisaw & Assoc. Gen. Contractors, Inc. v. Cornerstone Concrete
    Sys., Inc., 
    115 S.W.3d 16
    , 18 (Tex. App.—Fort Worth 2003, pet. denied); IPCO-G
    & C Joint Venture v. A.B. Chance Co., 
    65 S.W.3d 252
    , 255-56 (Tex. App.—
    Houston [1st Dist.] 2001, pet. denied). All reasonable presumptions are indulged
    in favor of the award, and none against it. Statewide Remodeling, Inc. v. Williams,
    
    244 S.W.3d 564
    , 567-68 (Tex. App.—Dallas 2008, no pet.).
    An arbitration award has the same effect as a judgment of a court of last
    resort; courts must protect against unwarranted judicial interference of arbitration
    awards based on generally claimed violations of public policy. CVN Group, Inc. v.
    Delgado, 
    95 S.W.3d 234
    , 238-39 (Tex. 2002); Bailey & Williams v. Westfall, 
    727 S.W.2d 86
    , 90 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). Review of an arbitration
    award is so limited that even a mistake of fact or law by the arbitrator in the
    application of substantive law is not a proper ground for vacating an award.
    Crossmark, Inc. v. Hazar, 
    124 S.W.3d 422
    , 429 (Tex. App.—Dallas 2004, pet.
    denied). Arbitration awards are entitled to great deference by the courts. 
    Id. B. The
    Gordons waived all arguments regarding the illegality of the
    contract by failing to object to the district court.
    In their first point of error, the Gordons complain that the trial court erred by
    enforcing a contract that they assert violates certain provisions of the Local
    Government Code and City of Austin Code of Ordinances. Specifically, the
    Gordons protest that Tex. Loc. Gov’t Code § 212.004 and § 232.001 require the lot
    Page 9 of 33
    to be platted prior to sale. Appellants’ Brief at 20-21. Because there is no dispute
    that the lot in question cannot be platted prior to sale, the Gordons assert that
    selling the land at all is illegal and thus the contract in question is also illegal. 
    Id. at 23-24.
    However, the record is clear on its face that the Gordons failed to object to
    the claimed illegality of the contract with the trial court. Foremost, the Gordons did
    not plead the affirmative defense of illegality of the contract before the trial court.
    C.R. at 33 ¶ 2. Instead, they only asserted defenses of equitable estoppel,
    repudiation, and waiver. 
    Id. In fact,
    during the hearing final hearing on this matter
    before the district court, the Gordons repeatedly asked the court to approve the sale
    of the property, which is the exact opposite of the relief they now request on
    appeal. 3 R.R. at 32:22-33:13. Counsel for Mr. Gordon stated at the hearing:
    “Mr. Gordon is prepared to agree to all the terms of the arbitration,
    but we need the court order for him to not have that civil and criminal
    liability.”
    ...
    “We’re – we’re ready to sell the property, we’re ready to move
    forward, we’re ready to have a debate over whether or not Mr.
    Gordon was within his rights to cut down these trees, but we’ve got to
    get the judgment or else he’s going to have civil and criminal liability
    and we’re going to have to come back and try to unpop this popcorn.”
    
    Id. at 35:1-36:8
    (emphasis added).
    Again, after the district court’s entered its final judgment and the Gordons
    Page 10 of 33
    filed a “Motion to Modify or Alter Judgment, or Alternatively, Motion for New
    Trial,” they failed to seek the relief they now request, namely, rescission of the
    contract. C.R. at 166-76. Instead, they requested that the lower court approve the
    very arbitration award for which they now seek reversal. As their proposed relief,
    the Gordons specifically requested “that the Court modify its judgment and issue
    an Amended Final Judgment in conformance with the August 27, 2015 Arbitration
    Award presented to the Court in Plaintiffs’ Motion to Confirm Arbitration Award.”
    
    Id. at 175
    (emphasis added).
    Even the district court’s final judgment outlines that the parties agreed they
    were both seeking for the contract to be enforced. The judgment unambiguously
    stated that “[t]he parties seek confirmation of the arbitration awards rendered by
    arbitrator Claude E. Ducloux on June 5, 2015 and August 27, 2015 (‘the
    Arbitration Awards’), pursuant to an agreement of arbitration between Plaintiffs
    and Defendants.” C.R. at 124.
    It is a well-known appellate principle that the failure to object to alleged
    errors before a trial court waives consideration of the errors on appeal. Under
    Texas Rule of Appellate Procedure 33, as a prerequisite to presenting a complaint
    for appellate review, the record must show that the complaint was actually made to
    the trial court. Tex R. App. P. 33.1. Further, in order to be preserved for review, not
    only must the complaint actually be made but it must also clearly be ruled upon. 
    Id. Page 11
    of 33
    § (a)(2). See also Wal-Mart Stores v. McKenzie, 
    997 S.W.2d 278
    , 280 (Tex. 1999)
    (“To preserve a complaint for appellate review, a party must present to the trial
    court a timely request, motion, or objection, state the specific grounds therefore,
    and obtain a ruling.”); Franco v. Slavonic Mut. Fire Ins., 
    154 S.W.3d 777
    , 784-85
    (Tex. App.—Houston [14th Dist.] 2004, no pet.) (error was not preserved for
    appeal when trial court did not rule on special exception).
    Here, the record is void of requests by the Gordons at the October 21, 2015
    Hearing on the Merits and Motion to Confirm an Arbitration Award to void, strike,
    or otherwise deny enforcement of the parties’ original contract to sell a portion of
    the property. It is axiomatic under basic standards of appellate review that they
    cannot now request this Court to grant the exact opposite relief that they requested
    the trial court to grant. Not only did the Gordons not want the contract to be voided
    by the district court, they actively sought for the district court to enforce it. See,
    e.g., C.R. at 110 (prior to the final hearing on the merits, Defendants asked the
    district court to “enter[] judgment affirming the Arbitration Award dated August
    27, 2015 . . .”). Therefore, the Gordons waived all claims that the contract is illegal
    in the trial court, and they are now precluded from seeking to rescind the contract
    in this Court.
    C.    The contract in question is not illegal.
    1.     There is no illegality on the face of the contract.
    Page 12 of 33
    The Gordons assert in their first point of error that the contract in question is
    illegal and void because the property is not eligible for replatting, and replatting
    must occur before the property can legally be transferred to the Gordons.
    Appellants’ Brief at 22-24. In support, they cite Lewis v. Davis, 
    145 Tex. 468
    , 472,
    
    199 S.W.2d 146
    , 148-49 (1947), for the proposition that a contract to do a thing
    which cannot be performed without a violation of law is void. While true, the
    proposition is incomplete. It is likewise true that where “the illegality does not
    appear from the contract itself or for the evidence necessary to prove [the contract],
    but depends upon extraneous facts, the defense [of illegality] is new matter, and, to
    be available, it must be pleaded.” Mullin v. Nash-El Paso Motor Co., 
    250 S.W. 472
    , 475 (Tex. Civ. App.—El Paso 1923, writ ref’d); see also After Hours, Inc. v.
    Sherrard, 
    456 S.W.2d 227
    , 229 (Tex. App.—Austin 1970, rev’d on other grounds)
    (illegality must be pleaded and presented to the court when not on the face of the
    contract).
    The MSA is nothing more than a contract for the sale of land. In Texas,
    parties have the right to contract with relation to property as they see fit, provided
    they do not contravene public policy and their contracts are not otherwise illegal.
    Scoville v. Springpark Homeowner’s Association, Inc., 
    784 S.W.2d 498
    , 502 (Tex.
    App.—Dallas 1990, writ denied). The MSA is not a contract for murder,
    conspiracy, or any other illegal act typically contemplated by the defense of
    Page 13 of 33
    illegality. The MSA simply obligates the Gordons to sell the conveyance property
    to the Nickersons, and is clearly valid on its face.
    Further, the Nickersons’ land use expert, Beryl Crowley, testified that it was
    not illegal for the sale of the property to go through via metes and bounds only, and
    the arbitrator relied on Ms. Crowley’s testimony in reaching his own independent
    conclusion that the contract was not illegal. C.R. at 63-64 (“[I]t is not unreasonable
    to find that all of these Codes, Rules and Statutes seem to reflect an intention that
    the parties cannot create an illegal lot with an expectation that it would be subject
    to [the] same rights as legally-platted lots . . . I find that, in accordance with the
    testimony of Ms. Crowley, it is not illegal for the sale to go through.”). 
    Id. at 64
    (emphasis added). Under the Gordons’ newly-asserted interpretation of the
    contract on appeal, it would be impossible for the property to ever be sold to any
    party because it cannot be platted. Texas public policy would not favor such an
    interpretation.
    2.     Even if the contract were illegal in theory, it is not void because it
    can be performed in a legal manner.
    An illegal contract is one in which the parties undertake what the law
    forbids. Franklin v. Jackson, 
    847 S.W.2d 306
    , 309 (Tex. App.—El Paso 1992, writ
    denied). Even so, a contract which could have been performed in a legal manner
    will not be declared void simply because it may have been performed in an illegal
    manner. 
    Id. (citing Lewis,
    199 S.W.2d at 148-49); Wade v. Jones, 526 S.W.2d
    Page 14 of 33
    160, 162-63 (Tex. Civ. App.—Dallas 1975, no writ). Courts must presume that
    contracts are legal, and the burden to prove illegality is on the party asserting it, in
    this case,4 the Gordons. 
    Franklin, 847 S.W.2d at 310
    .
    The facts in Franklin are analogous to this case. In Franklin, the parties
    entered into a multi-year agreement in which the seller agreed to sell the buyer its
    peanut allotment annually for a term of four years. Later, after the parties disputed
    who had breached the contract, the buyer asserted that the contract was illegal and
    void and moved for summary judgment on these grounds. 
    Id. at 308.
    The trial
    court granted summary judgment and rescinded the contract based on the buyer’s
    assertion that multi-year sales contracts of peanuts were per se illegal under then-
    existing federal U.S. Department of Agriculture rules.                  
    Id. Under USDA
    procedures, such contracts were only legal if approved by a specific committee,
    and the committee was not legally allowed to approve multi-year agreements. 
    Id. at 310.
       The court of appeals reversed because the contract could have been
    performed in a legal manner; namely, the committee could have “simply
    indicate[d] that [the contract] would only be approved one year at a time.” 
    Id. Similarly, the
    contract in this case can be performed in a legal manner. The
    City of Austin’s decision that the property is not eligible for platting does not state
    4
    But note that the Gordons only assert that the contract is illegal now; they asserted the exact
    opposite before the district court.
    Page 15 of 33
    that it can never be replatted or that the sale of the property cannot go through; it
    only states that the property is “not eligible to receive utility service until it has
    been included in a recorded subdivision plat.” 6 R.R. at 65-68 (Ex. 4). But this fact
    was already contemplated and embodied in the arbitrator’s award. C.R. at 136
    (“other than a special warranty that the Grantees ‘own the dirt’ being conveyed . . .
    the Nickersons acknowledge that [they] are taking this fractional tract without any
    expectation or understanding on their (the Grantee’s) part, nor warranty, promise,
    or representation by the Gordons that the land being purchased by metes and
    bounds will ever be able to qualify for governmental services.”). Thus, the contract
    can be performed in a legal manner because the only limitation on the property is
    that it is excluded from city services, which the parties already knew and bargained
    for, rather than the inability of the property to be sold at all.
    D.     The district court’s final judgment resolves any issues regarding the
    potential illegality of the contract.
    1.     Texas Property Code § 12.002(g) allows the property to be
    subdivided and sold through a court order.
    The arbitrator ruled on August 27, 2015 that the sale of the property by
    metes and bounds only was not illegal under Texas law. C.R. at 135 (“Although I
    am cognizant that the issue of illegality is always preserved for the parties to take
    to litigation, I find that, in accordance with the testimony of Ms. Crowley, it is not
    Page 16 of 33
    illegal for the sale to go through.”). Even so, under Chapter 12 of the Texas
    Property Code:
    (b) A person may not file for record or have recorded in the county
    clerk’s office a plat or replat of a subdivision of real property unless it
    is approved as provided by law by the appropriate authority . . .
    (c) [A] person who subdivides real property may not use the
    subdivision’s description in a deed of conveyance, a contract for a
    deed, or a contract of sale or other executory contract to convey that is
    delivered to a purchaser unless the plat or replat of the subdivision is
    approved and is filed for record with the county clerk of the county in
    which the property is located . . .
    Tex. Prop. Code § 12.002(c).
    These provisions essentially require anyone who subdivides and sells
    property to replat the property prior to sale and recording. However, subsection-(g)
    of the same law allows a district court to negate subsections (b) and (c)’s
    requirements through court order. Subsection-(g) simply states that “[t]his section
    does not apply to a partition by a court.” 
    Id. § 12.002(g).
    2.     The district court’s final judgment orders the property to be sold
    and is therefore a “partition by a court” under Property Code §
    12.002(g).
    The district court’s final judgment dictates that, among other things,
    “Defendants are ORDERED to convey to Plaintiffs the portion of lot 13 identified
    in the Mediated Settlement Agreement (‘MSA’) . . . (‘the Property’) . . . .” C.R. at
    125 ¶ 2. The MSA, which was attached as Exhibit C to the judgment, obligates the
    Nickersons to purchase and the Gordons to convey “a portion” of the Gordons’
    Page 17 of 33
    property. C.R. at 138 ¶ 1.
    Though the Texas Property Code does not specifically define the term
    “partition,” Black’s Law Dictionary defines it as “1. Something that separates one
    part of a space from another. 2. The act of dividing; esp., the division of real
    property . . . .” Black’s Law Dictionary (9th Ed.) (2009). By its clear terms, the
    MSA compels the Gordons to convey a portion of their property to the Nickersons.
    The final judgment, then, is safely characterized as a “partition by a court”
    because it enforces the terms of the MSA to which the parties agreed.
    Furthermore, the Gordons agreed with this interpretation at the trial court by
    making this very same argument.         See, e.g., 3 R.R. at 33:9-13 (“MR. R.
    GORDON: And under Texas Property Code 12.002(g) under a judicial order the
    civil and criminal liability that would otherwise be subject to Mr. Gordon would no
    longer be in play if we have a court order requiring the subdivision of this
    property.”); 3 R.R. at 35:17-25 (“MR. R. GORDON: So that’s what – that’s why
    we’re seeking the motion to confirm arbitration. If we just subdivide this property
    without coming in front of Your Honor and without getting a court order and final
    judgment, he would be subject to the same civil and criminal liability. Under the
    Property Code 12.02(g) [sic], if the Court orders the subdivision of the property,
    then he does not have that liability. We’re – we’re kind of arguing over nothing
    here.”). Therefore, since the district court’s final judgment constitutes a court-
    Page 18 of 33
    ordered partition of the property, any issues regarding the contract potentially
    violating Texas law are ultimately moot.5
    3.     The Gordons’ fear of criminal prosecution is unfounded.
    The Gordons assert they fear criminal prosecution if the sale of the property
    is allowed to move forward. But they ignore the fact that under Local Government
    Code § 212.018, prosecution can only occur “[a]t the request of the governing
    body of the municipality. . .”. Tex. Loc. Gov’t Code § 212.018(a). The Gordons
    offered no evidence or proof to the trial court, and they offer no evidence or proof
    to this Court, that prosecution has been threatened, implied, or even considered by
    the City of Austin in this case. In short, they offer no credible reason to believe
    prosecution could ever occur.
    E.     The district court did not modify the arbitrator’s ruling.
    1.     The plain text of the district court’s order confirms the ruling.
    As 
    stated supra
    , under the Texas Arbitration Act (“TAA”), arbitration
    awards are entitled to great deference by the courts, and judicial review of an
    arbitration award is extremely narrow, even where the arbitrator misapplies the
    law. 
    Crossmark, 124 S.W.3d at 429
    . In their second point of error, the Gordons
    complain that the trial court improperly modified the arbitrator’s ruling by
    5
    By extension, this Court’s affirmation of the district court would make the Gordons’ illegality
    arguments even more irrelevant.
    Page 19 of 33
    awarding the Nickersons $8,571.00 for the trees that Mr. Gordon destroyed. But
    the clear language of the district court’s order indicates that it confirmed the
    arbitrator’s ruling outright. C.R. at 125 ¶ 1 (“The Court hereby CONFIRMS the
    Arbitration Awards of June 5, 2015 . . . and August 27, 2015 . . .”).
    2.     The additional damages awarded to the Nickersons were not
    related to arbitration and therefore are not a modification to the
    arbitrator’s award.
    The $8,571.00 was awarded because of Mr. Gordon’s flagrant breach of the
    MSA, not as a modification of the arbitrator’s award. 3 R.R. at 12 (“MR. SNELL: -
    - I removed those claims. The only claims left are breach of the MSA and I’m
    asking for $14,000 related to the value of the trees that were cut down.”). As Mr.
    Nickerson testified at the hearing to confirm the arbitration award:
    Q. Okay. Now, are you also seeking costs related to breach of
    the MSA that occurred after the arbitrator’s final ruling?
    A. We are.
    Q. Okay. And what are those costs related to?
    A. After the arbitrator’s ruling that we should move forward
    with this and complete the sale, we’ve had to have attorney fees to go
    to a temporary restraining order hearing and an injunction hearing,
    and then we had damages because Mr. R. Gordon cut down the trees
    on the property to be conveyed, leaving stumps and brush that needs
    to be removed and replant trees that need to be replaced.
    3 R.R. at 21:10-22.
    Mr. Nickerson also testified as follows:
    Q. Okay. And have you ever had an opportunity to ask for those
    Page 20 of 33
    damages in any other proceeding? Did you have an opportunity to
    present those to -- to Claude Ducloux?
    A. No, because they occurred more recently.
    Q. Okay. And are you asking the Judge to modify Claude
    Ducloux's ruling or are you asking for a – the Judge to award you
    those damages for breach of the MSA?
    A. For the breach of the MSA.
    3 R.R. at 24:10-18.
    Of note, the Gordons did not object to any of this testimony, which was
    properly admitted before the court. Therefore, they waived all arguments regarding
    the allocation of damages on appeal. See Tex. R. App. P. 33.1; 
    McKenzie, 997 S.W.2d at 280
    .
    3.    The district court’s award of additional damages is a “cost” or
    “disbursement” under Civil Practice & Remedies Code §
    171.091(b).
    Under the TAA, when a court confirms an arbitration award, it is also
    entitled to award “disbursements.” Tex. Civ. Prac. & Rem. Code § 171.091(b)(2).
    Neither the Civil Practice & Remedies Code nor Texas case law defines this term,
    but the Gordons offer no reason why the trial court’s award of additional damages
    cannot constitute a disbursement under the statute. Black’s Law Dictionary defines
    a disbursement as “The act of paying out money, commonly from a fund or in
    settlement of a debt or account payable.” Black’s Law Dictionary (9th Ed.) (2009).
    Under basic principles of equity and the prevention of unjust enrichment, the
    Gordons were indebted to the Nickersons from the moment they permanently
    Page 21 of 33
    altered the conveyance property.
    Similarly, the Gordons offer no reason why the additional damages for the
    malicious destruction of the trees cannot constitute “costs” under § 171.091(b)(1).
    Had Mr. Gordon not partially destroyed and altered the property, the Nickersons
    would not have had to expend the costs associated with amending their petition,
    seeking a permanent injunction, or confirming the arbitrator’s ruling in the district
    court. Instead, with a legally binding MSA and arbitration ruling already in place,
    the Nickersons could have dismissed their claims and the parties could have moved
    forward with the sale (as all parties desired at the time). Under the plain language
    of § 171.091(b)(1), the district court was free to consider the additional damages
    for destroying the trees as newly-incurred “costs of the application.” 
    Id. F. The
    district court did not err in awarding attorney’s fees.
    1.     Fees were available under Civil Practice & Remedies Code §
    38.001 for breach of the MSA.
    The Gordons assert in their third point of error that the trial court erred in
    awarding the Nickersons $9,563.48 in “non-segregated” attorney’s fees. But such
    fees were justified both for a breach of the MSA and for the efforts the Nickersons
    had to undertake to confirm the arbitration award and obtain a permanent
    Page 22 of 33
    injunction.6
    In Texas, attorney’s fees are generally available for breach of contract
    claims. Tex. Civ. Prac. & Rem. Code § 38.001(8). According to the Gordons,
    attorney’s fees were not available under the MSA because the agreement states that
    “Each party shall otherwise bear his her its [sic] own attorneys fees and mediation
    fees.” C.R. at 138 ¶ 6. However, in the context of a negotiated settlement
    agreement, this statement applied only to the underlying litigation brought by the
    Nickersons prior to mediation and the negotiations surrounding the creation of the
    MSA, not to a breach of the MSA itself. Under Texas law, to waive a statutory
    right to attorney’s fees, the waiver must “specifically preclude [a] statutory claim
    to an award of attorney’s fees under Section 38.001.” Nat’l Bank v. Sandia Mortg.
    Corp., 
    872 F.2d 692
    (5th Cir. 1989) (interpreting Texas law); see also Bank of Am.,
    N.A. v. Hubler, 
    211 S.W.3d 859
    , 865 (Tex. App.—Waco 2006, pet. granted,
    judgm’t vacated w.r.m.) (holding that the claimant did not waive her statutory right
    to attorney’s fees because the contract provision that the bank would not be liable
    “for attorney’s fees incurred,” was “too general to apprise [the claimant] of what
    right she [was] relinquishing, namely her statutory right to attorney’s fees under
    Chapter 38.”). No such waiver exists in the MSA.
    6
    Notably, the Gordons sought their own attorney’s fees before the trial court for their own
    efforts to confirm the arbitration award under the same provisions they now assert are not
    applicable to the Nickersons’ efforts. See C.R. at 109 ¶ 17.
    Page 23 of 33
    This case is identical to Herring v. Heron Lakes Estates Owners Association,
    in which the Fourteenth Court of Appeals affirmed the prevailing party’s right to
    attorney’s fees following a breach of a negotiated settlement agreement. No. 14-
    09-00772-CV, 2011 Tex. App. LEXIS 5 (Tex. App.—Houston [14th Dist.] 2011,
    pet. dismissed). The underlying suit concerned a property owners’ association’s
    claims against individual homeowners in the subdivision for violating various
    restrictive covenants. 
    Id. at 1.
    Attorney’s fees were not available to either party in
    the underlying claim, but the parties negotiated a settlement agreement on the
    record before the court. 
    Id. at 2-3.
    Later, the owners’ association alleged the
    homeowners breached the settlement agreement, and the trial court granted
    summary judgment to the owners’ association on the issue of breach and also
    awarded the owners’ association its attorney’s fees. 
    Id. at 3.
    The homeowners
    appealed, arguing that the owners’ association waived its right to attorney’s fees
    under an explicit provision of the settlement agreement that stated “there will be no
    attorneys’ fees awarded on either side.” 
    Id. at 16.
    The court of appeals affirmed
    the district court’s judgment, finding:
    The contract provision at issue in this case did not specifically
    preclude a statutory award of attorney’s fees for a breach of the
    settlement agreement itself. Rather, the parties agreed that the parties
    would bear their own attorney’s fees incurred in the negotiation and
    settlement, not that the [homeowners’ association] waived attorney’s
    fees incurred to enforce the settlement agreement. Accordingly, the
    trial court did not err in awarding attorney’s fees accruing from the
    point when [the homeowners] breached the agreement.
    Page 24 of 33
    
    Id. at 19-20.
    Here, at the very least, the Gordons breached paragraph 8 of the MSA by
    stringing up barbed wire and “No Trespassing” signs around the water well, thus
    preventing the Nickersons’ “uninterrupted” access to it. See C.R. at 138 ¶ 8; 6 R.R.
    at 5-10 (Exh. 1). Just as in Herring, the MSA in this case contains no explicit
    language waiving the right to fees in the event the agreement itself is breached.
    2.        Attorney’s fees were available for efforts to confirm the
    arbitration award.
    When a party’s challenge to an arbitration award is “without merit” and its
    refusal to abide by the award is “without justification,” a trial court can award
    attorneys’ fees to the party seeking to confirm the arbitration award. Stage Stores,
    Inc. v. Gunnerson, 
    477 S.W.3d 848
    , 863-64 (Tex. App.—Houston [1st Dist.] 2015,
    no pet.) (citing Executone Info. Sys., Inc. v. Davis, 
    26 F.3d 1314
    , 1331 (5th Cir.
    1994). Even in the event fees were not available under Chapter 38 of the Civil
    Practice & Remedies Code, the Gordons’ egregious actions in this case easily meet
    the “without justification” standard for awarding fees.
    3.        The fees were not “non-segregated.”
    The Gordons complain that the fees were not segregated between the
    Nickersons’ breach of contract claim, their efforts to seek an injunction, and their
    motion to confirm the arbitration award. This is not the case. All awarded fees
    Page 25 of 33
    were incurred only after early September 2015 when the Gordons breached the
    MSA by excluding the surveyor, destroying trees, and preventing access to the
    well. 6 R.R. at 24-38 (Exh. 4-6); 6 R.R. at 39-44 (Exh. 7-8). After this point, all
    fees related directly to pursuing a claim that was eligible for fees, namely the
    Nickerson’s breach of contract claim. As counsel for the Nickersons informed the
    trial court:
    MR. SNELL: We almost agree on everything, but within our second
    amended petition, which we want to be heard on today and we set that
    for hearing, we have requested damages related to the breach of the
    mediated settlement agreement.
    THE COURT: Okay.
    MR. SNELL: So we intend to put on evidence of -- of those damages.
    THE COURT: Okay.
    MR. SNELL: And that’s the tree cutting, Your Honor.
    3 R.R. at 7:11-21.
    MR. SNELL: And that’s about ten minutes of testimony from Jim
    Nickerson, and then I’m asking for my attorney fees, and so -- and
    I’ve made no secret what I’m seeking. In fact, we’ve been arguing
    about it.
    THE COURT: Okay.
    MR. SNELL: So this -- you know, there – there’s no undue prejudice,
    there’s no surprise. Depositions, they’ve -- Jim Nickerson has testified
    twice in this case.
    3 R.R. at 12:14-22.
    Over the Gordons’ objection, the records supporting the fees were properly
    admitted through the direct testimony of counsel for the Nickersons at the district
    court. 3 R.R. at 54:4-57:18, 58:4-64:16. The Gordons do not assert that receiving
    Page 26 of 33
    these exhibits was a “clear abuse of discretion” or that it is even reviewable under
    the “extremely narrow” assessment of the district court’s actions that is allowed by
    this Court. See 
    Tyra, 822 S.W.2d at 631
    ; 
    Hisaw, 115 S.W.3d at 18
    ; see also Tex.
    R. App. P. 44.1(a) (“No judgment may be reversed on appeal on the ground that
    the trial court made an error of law unless the court of appeals concludes that the
    error complained of: (1) probably caused the rendition of an improper judgment; or
    (2) probably prevented the appellant from properly presenting the case to the court
    of appeals.”).
    Furthermore, the Nickersons’ fees to pursue the injunction and confirmation
    the arbitration award were “inextricably intertwined” with their MSA breach
    claims because all the claims arose out of the same transactions and depended on
    proof of the same facts. See, e.g., Air Routing Int’l Corp. v. Britannia Airways,
    Ltd., 
    150 S.W.3d 682
    (Tex. App.—Houston [14th Dist.] 2004, no pet.). As such, it
    was not error for the district court to award the Nickersons all of their requested
    fees.
    G.      All the remaining points of error asserted by the Gordons are without
    merit.
    In their final points of error, the Gordons assert that the trial court’s
    temporary injunction order did not comply with Texas Rule of Civil Procedure 683
    and the order was too broad, thereby preventing them from exercising their legal
    rights. Appellants’ Brief at 33-40. Both of these points are without merit.
    Page 27 of 33
    First, the Gordons waived any errors concerning the form or substance of the
    temporary injunction because they were willing to agree to all of its terms before
    the trial court. 2 R.R. at 7:21-9:20. As shown repeatedly throughout this brief, it is
    nonsensical for the Gordons to now complain to this Court that their rights were
    impeded by the trial court when they essentially agreed to all of the trial court’s
    rulings concerning what actions they were prohibited from taking regarding the
    conveyance property.7
    Second, the temporary injunction was clearly needed to preserve the status
    quo and prevent irreparable harm to the Nickersons, as Mr. Gordon had already
    disobeyed the court’s prior order to remove the barbed wire fence he had erected
    next to the Nickerson children’s trampoline. 2 R.R. at 60:8-18. The court made this
    clear when it granted the application. 2 R.R. at 58:4-66:23. As the court astutely
    recognized:
    THE COURT: -- between now and then. As long as he doesn’t violate
    it, there’s no -- all we’re doing is keeping the status quo. We just don’t
    want any more trees coming down, we don’t want the land changed,
    and because there’s -- you know, as you mentioned, there’s -- there
    are some -- I don’t want him coming in and saying, “Well, the
    contract” -- you know, “this mediated settlement agreement didn’t say
    that I could burn down the land.” I mean, that’s not okay. We want the
    land to remain exactly as it is and we certainly don’t want any
    7
    See C.R. at 125 (noting in the final judgment that “[t]he parties have AGREED and IT IS
    THEREFORE ORDERED, that Plaintiffs’ request for permanent injunctive relief should be an is
    hereby in all things GRANTED.”) (emphasis added). The Gordons never objected to the
    language in the order reflecting the trial court’s understanding that the Gordons did not dispute
    the terms of the permanent injunction.
    Page 28 of 33
    tampering of the wells and we don’t want any children harmed. All
    right? . . .
    2 R.R. at 62:19-63:6.
    Third, the temporary injunction order clearly complies with Rule 683 on its
    face. C.R. at 101-03. The Gordons cannot reasonably dispute that the order sets for
    the reasons for its issuance, is specific in its terms, and describes in reasonable
    detail the acts the Gordons were restrained from taking. Tex. R. Civ. P. 683.
    Fourth, as indicated elsewhere throughout this brief, all of the actions the
    injunction prevents the Gordons from taking with respect to the conveyance
    property are immediately moot upon transfer of the property to the Nickersons.
    Fifth, the Gordons are simply incorrect that the terms of the permanent
    injunction restrain them from exercising their legal rights. To the contrary, the
    Gordons never possessed any rights to dispossess or alter the Nickersons’ access to
    the water well to begin with under the easement that had already been in place for
    nearly two decades. C.R. at 126 ¶¶ 1-4; see also C.R. at 13-18. And any other
    “rights” the Gordons brazenly assert that they possess regarding the land generally
    were forfeited when they breached the MSA and permanently altered the nature of
    the conveyance property, thereby depriving the Nickersons of the benefit of the
    bargain they received when they agreed to purchase the property. 
    Id. ¶¶ 5-7.
    
    Page 29 of 33
    III.   CONCLUSION AND PRAYER FOR RELIEF
    The Gordons filed a frivolous appeal by requesting this Court to reach
    conclusions that are exactly opposite of the conclusions they sought the trial court
    to reach. To reverse the entire transaction as the Gordons request would not only
    irreparably harm the Nickersons by requiring them to continue to litigate issues
    that have already been mediated and arbitrated twice, it would jeopardize their
    homestead’s access to potable water. Further, aside from the sound legal arguments
    set 
    out supra
    , affirming the district court is the most equitable result under the
    circumstances. See, e.g., Lincoln Nat’l Life Ins. Co. v. Rittman, 
    790 S.W.2d 791
    ,
    794 (Tex. App.—Houston [14th Dist.] 1990, no writ) (“[Basic principles of
    equity], after all, remains the test. Perhaps this approach lacks analytical rigor, but
    it was precisely a scrupulous adherence to rigor that resulted in the growth of the
    courts of equity in the first place. While we do not deprecate the logic of
    appellant’s legal position, there sometimes arise cases where law goes only so far
    and the chancellor must step in.”).
    The Nickersons respectfully request this Court AFFIRM the trial court’s
    final judgment in all aspects. In the alternative, to the extent the Court deems it
    necessary, the Nickersons request this Court include in its judgment an affirmation
    that the contract in question is valid under Texas law and the property be conveyed
    as agreed by the parties in the MSA. The Nickersons further request their costs of
    Page 30 of 33
    court pursuant to Texas Rule of Appellate Procedure 43.4. The Nickersons also
    request their attorney’s fees on appeal in the amount of $15,000 under Tex. Civ.
    Prac. & Rem. Code § 38.001(8) for the Gordons’ continued concerning their
    obvious breach of the MSA. Additionally, the Nickersons request this Court to
    ORDER the Gordons to sign and transmit the deed finalizing the sale of the
    property within five (5) days of the Court’s order. Finally, the Nickersons request
    all other relief in law and in equity to which they are reasonably entitled.
    Respectfully submitted,
    The Snell Law Firm, P.L.L.C.
    BY:      /s/ Jason W. Snell
    JASON W. SNELL
    Bar No. 24013540
    JOHN ROBERT SKRABANEK
    Bar No. 24070631
    The Snell Law Firm, PLLC
    Chase Tower
    221 W. 6th Street, Suite 900
    Austin, Texas 78701
    (512) 477-5291 – Telephone
    (512) 477-5294 – Fax
    firm@snellfirm.com – Email
    ATTORNEYS FOR APPELLEES
    Page 31 of 33
    CERTIFICATE OF COMPLIANCE
    Pursuant to TEX. R. APP. P. 9.4, I certify that Appellees’ Brief in Response
    contains 7,661 words.      This is a computer-generated document created in
    Microsoft Word, using 14-point typeface for all text, except for footnotes, which
    are in 12-point typeface. In making this Certificate of Compliance, I am relying on
    the word count provided by the software used to prepare the document.
    /s/ Jason W. Snell
    Jason W. Snell
    CERTIFICATE OF SERVICE
    I certify that on the 22nd day and 30th day of August 2016, I caused the
    foregoing document to be electronically filed with the Clerk of the Court pursuant
    to the Electronic Filing Procedures and using the CM/ECF system, and that a true
    and correct electronic copy was thereby caused to be served on Appellants.
    Jeremie Gordon and Amber Arnold-Gordon
    14284 FM 2769
    Leander, Texas 78641
    Telephone: (512) 838-1849
    Facsimile: (512) 410-0263
    Jeremie.gordon@gmail.com
    Amber.renee.gordon@gmail.com
    Pro Se Appellants
    /s/ Jason W. Snell
    Jason W. Snell
    Page 32 of 33
    APPENDIX
    ITEM   Document
    A      Texas Property Code § 12.002
    B      Texas Civil Practice & Remedies Code § 38.001
    Page 33 of 33
    ITEM-A
    Sec. 12.002. SUBDIVISION PLAT; PENALTY. (a) The county clerk or
    a deputy of the clerk with whom a plat or replat of a subdivision of real property is
    filed for recording shall determine whether the plat or replat is required by law to
    be approved by a county or municipal authority or both. The clerk or deputy may
    not record a plat or replat unless it is approved as provided by law by the
    appropriate authority and unless the plat or replat has attached to it the documents
    required by Subsection (e) or by Section 212.0105 or 232.023, Local Government
    Code, if applicable. If a plat or replat does not indicate whether land covered by
    the plat or replat is in the extraterritorial jurisdiction of the municipality, the county
    clerk may require the person filing the plat or replat for recording to file with the
    clerk an affidavit stating that information.
    (b) A person may not file for record or have recorded in the county clerk's
    office a plat or replat of a subdivision of real property unless it is approved as
    provided by law by the appropriate authority and unless the plat or replat has
    attached to it the documents required by Section 212.0105 or 232.023, Local
    Government Code, if applicable.
    (c) Except as provided by Subsection (d), a person who subdivides real
    property may not use the subdivision's description in a deed of conveyance, a
    contract for a deed, or a contract of sale or other executory contract to convey that
    is delivered to a purchaser unless the plat or replat of the subdivision is approved
    and is filed for record with the county clerk of the county in which the property is
    located and unless the plat or replat has attached to it the documents required by
    Subsection (e) or by Section 212.0105 or 232.023, Local Government Code, if
    applicable.
    (d) Except in the case of a subdivision located in a county to which
    Subchapter B, Chapter 232, Local Government Code, applies, Subsection (c) does
    not apply to using a subdivision's description in a contract to convey real property
    before the plat or replat of the subdivision is approved and is filed for record with
    the county clerk if:
    (1) the conveyance is expressly contingent on approval and
    recording of the final plat; and
    (2) the purchaser is not given use or occupancy of the real property
    conveyed before the recording of the final plat.
    (e) A person may not file for record or have recorded in the county clerk's
    office a plat, replat, or amended plat or replat of a subdivision of real property
    unless the plat, replat, or amended plat or replat has attached to it an original tax
    certificate from each taxing unit with jurisdiction of the real property indicating
    that no delinquent ad valorem taxes are owed on the real property. If the plat,
    replat, or amended plat or replat is filed after September 1 of a year, the plat,
    replat, or amended plat or replat must also have attached to it a tax receipt issued
    by the collector for each taxing unit with jurisdiction of the property indicating that
    the taxes imposed by the taxing unit for the current year have been paid or, if the
    taxes for the current year have not been calculated, a statement from the collector
    for the taxing unit indicating that the taxes to be imposed by that taxing unit for the
    current year have not been calculated. If the tax certificate for a taxing unit does
    not cover the preceding year, the plat, replat, or amended plat or replat must also
    have attached to it a tax receipt issued by the collector for the taxing unit indicating
    that the taxes imposed by the taxing unit for the preceding year have been paid.
    This subsection does not apply if:
    (1) more than one person acquired the real property from a decedent
    under a will or by inheritance and those persons owning an undivided interest in
    the property obtained approval to subdivide the property to provide each person
    with a divided interest and a separate title to the   property~   or
    (2) a taxing unit acquired the real property for public use through
    eminent domain proceedings or voluntary sale.
    (f) A person commits an offense if the person violates Subsection (b), (c),
    or (e). An offense under this subsection is a misdemeanor punishable by a fine of
    not less than $10 or more than $1,000, by confinement in the county jail for a term
    not to exceed 90 days, or by both the fine and confinement. Each violation
    constitutes a separate offense and also constitutes prima facie evidence of an
    attempt to defraud.
    (g) This section does not apply to a partition by a court.
    ITEM-B
    Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. A person may
    recover reasonable attorney's fees from an individual or corporation, in addition to
    the amount of a valid claim and costs, if the claim is for:
    (1) rendered services~
    (2) performed labor;
    (3) furnished   material~
    (4) freight or express overcharges;
    (5) lost or damaged freight or express;
    (6) killed or injured   stock~
    (7) a sworn account; or
    (8) an oral or written contract.
    

Document Info

Docket Number: 03-16-00071-CV

Filed Date: 8/30/2016

Precedential Status: Precedential

Modified Date: 9/5/2016

Authorities (24)

Mullin v. Nash-El Paso Motor Co. , 1923 Tex. App. LEXIS 800 ( 1923 )

Franklin v. Jackson , 847 S.W.2d 306 ( 1993 )

TMC Worldwide, L.P. v. Gray , 2005 Tex. App. LEXIS 4138 ( 2005 )

McDonald v. State , 2005 Tex. Crim. App. LEXIS 2010 ( 2005 )

Statewide Remodeling, Inc. v. Williams , 2008 Tex. App. LEXIS 24 ( 2008 )

Fed. Sec. L. Rep. P 98,372 Executone Information Systems, ... , 26 F.3d 1314 ( 1994 )

Lincoln National Life Insurance Co. v. Rittman , 1990 Tex. App. LEXIS 1088 ( 1990 )

Tyra v. City of Houston , 35 Tex. Sup. Ct. J. 248 ( 1991 )

Scoville v. Springpark Homeowner's Ass'n , 1990 Tex. App. LEXIS 466 ( 1990 )

Wade v. Jones , 1975 Tex. App. LEXIS 2889 ( 1975 )

Teleometrics International, Inc. v. Hall , 922 S.W.2d 189 ( 1996 )

AFTER HOURS, INC. v. Sherrard , 1970 Tex. App. LEXIS 2404 ( 1970 )

Bank of America, N.A. v. Hubler , 211 S.W.3d 859 ( 2007 )

Lewis v. Davis , 145 Tex. 468 ( 1947 )

AIR ROUTING INTERNATIONAL CORP.(CANADA) v. Britannia ... , 150 S.W.3d 682 ( 2004 )

IPCO-G.&C. Joint Venture v. A.B. Chance Co. , 65 S.W.3d 252 ( 2002 )

CRC-Evans Pipeline International, Inc. v. Myers , 1996 Tex. App. LEXIS 3127 ( 1996 )

Lee v. Bowles , 1965 Tex. App. LEXIS 2311 ( 1965 )

Wal-Mart Stores, Inc. v. McKenzie , 42 Tex. Sup. Ct. J. 1141 ( 1999 )

Bailey and Williams v. Westfall , 1987 Tex. App. LEXIS 7115 ( 1987 )

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