Jerry Hofrock v. Judy Hornsby ( 2015 )

ACCEPTED
03-14-00505-CV
6106161
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/16/2015 5:41:15 PM
JEFFREY D. KYLE
03-14-00505-CV CLERK
IN THE COURT OF APPEALS
FILED IN
THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
7/17/2015 2:44:15 PM
JEFFREY D. KYLE
Clerk
JERRY HOFROCK
Appellant
Vs.
JUDY HORNSBY
Appellee
APPELLANT'S BRIEF
JERRY HOFROCK
1601 Eagle Wing
Cedar Park, Texas 78613
Appellant's Brief Page i
IDENTITY OF PARTIES AND COUNSEL
Appellant: Jerry Hofrock
1601 Eagle Wing
Temple, Texas 78613
Appellee: Judy Hornsby
Attorneys for Appellee Justin Bradford Smith
John Eric Stoebner
2106 Birdcreek Drive
Temple, Texas 76502
Appellant's Brief Page ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .ii
TABLE OF CONTENTS ' .iii
TABLE OF AUTHORITIES .. ; .iv
STATEMENT OF THE CASE 1
STATEMENT OF JURISDICTION 1.
ISSUES PRESENTED 1'
STATEMENT OF FACTS 1
SUMMARY OF THE ARGUMENT 3
ARGUMENTS AND AUTHORITIES 4
ISSUE 1: Did Appellant suffer as a result of Ineffective Counsel. .4
ISSUE 2: Did the Court err when it ignored Appellant's
hard of hearing disability 5
ISSUE 3: Did the Court err when it awarded attorney's fees 6
PRAYER 8
CERTIFICATE OF SERVICE 8
CERTIFICATE OF COrv1J>LIANCE 9
APPENDIX 10
Appellant's Brief Page iii
TABLE OF AUTHORITIES
Cases
Burleson State Bank v. Plunkett, 27 S.W.3d 605, (Tex.-App., Waco, 2000.) ... 7
Greenway Bank & Trust v. Smith, 679 S.W.2d 592, 596
(Tex.App.-Houston [lst Dist.] 1984, writ ref'd n.r.e.) 7
Vinewood Capital, LLC v. Sheppard Mullin Richter & Hampton, LLP,
No. 4:10-CV-220-Y, (U.S.Dist.Ct., N.D., Texas Fort Worth Division, 2010) ... 8
Codes
Tex.Bus.& Comm. Code §27.01. 4,6, 7
American DisabilityAct '" 1,6
Texas Constitution
Art. 1, Sec. 19 : 1, 6
Art. 5, Sec. 1 1
Art. 5, Sec. 6 1
Art. 1, Sec. 10 6
Appellant's Brief Page iv
STATEMENT OF THE CASE
The underlying action was a suit brought by Judy Hornsby, in which she
alleged fraud, unjust enrichment and suit for quiet title against Appellant, Jerry
Hofrock. No jury trial was requested and the case was adjudicated at a bench trial.
The court ruled in favor of Ms. Hornsby.
STATEMENT OF JURISDICTION
This court has jurisdiction to hear the case pursuant to Texas Constitution
Art. 1, Sec. 19, Art. 5, Sec. 1, Sec. 6, and American Disability Act.
ISSUES PRESENTED
Issue No.1: Did Appellant suffer as a result of ineffective counsel?
Issue No.2: Did the Court err when it ignored Appellant's hard of hearing
disability?
Issue No.3: Did the Court err when it awarded attorney's fees?
STATEMENT OF FACTS
In 2009, Appellant was approached by Hornsby for help in saving her
property that was close to foreclosure. Hornsby held title to approximately 10
acres, 5 acres with improved property and 5 acres of unimproved land. The
unimproved land was not encumbered with a lien. Hornsby told Appellant that she
wanted to be rid of the property without incurring a deficiency to the mortgage
company and without suffering a foreclosure. She required no profit from the
sale, only that the property did not undergo foreclosure.
Appellant's Brief Page 1
Appellant agreed to assist Hornsby in a short sale, but because the property
was badly deteriorated, Appellant knew that it would cost close to $100,000 to
bring the property up to marketable value. In the state in which Appellant first
viewed the property, he knew that even with a reduced rate of pay back to the
mortgage company that the property would not sell for the amount owed. The
property was in a state of disrepair. Hornsby told Appellant that she had no money
to contribute for repairs. Appellant determined that he could fix up the property,
payoff the note at a short sale and gain a profit by selling the unencumbered land,
which would reimburse him for costs expended in fixing Hornsby's property to
sell. In order to be protected, Appellant had Hornsby deed the property to him and
give him power of attorney to work with the mortgage company.
Appellant moved a crew into the property so they could be on premises and
work full time. Appellant had paid close to $80,000 from his own pocket towards
the renovation when Hornsby returned from out of state, forced her way back onto
the property, thus breaching their contract, and called a halt to the reconstruction.
The property was subsequently foreclosed.
The deed which Hornsby signed over to Appellant included the encumbered
property and the 5 acre plot which was not encumbered. Had Appellant been
allowed to sell the 5 acre plot, he could have recouped part of the money which he
had already expended. Instead, Hornsby sued him.
Appellant's Brief Page 2
When Appellant was served, he wrote a letter to the court informing it that
he was in the process of hiring an attorney. C.R. p. 35. Appellant's letter, which
he filed in district court, stated he had a defense and a possible counterclaim. Then
Appellant hired an attorney,Leonard F. Green. Mr. Green filed only a general
denial and nothing else. When the amended petition added unjust enrichment after
the statute of limitations had run on that cause of action, the attorney did not file a
verified denial and raise the defense of the statute of limitations.
SUMMARY OF-THE ARGUMENT
It is clear from the clerk's record and the reporter's records that Appellant
suffered from two disabilities, 1) an incompetent attorney and 2) failure to hear the
trial clearly.
The only credible work that Mr. Green contributed to Appellant was the
Defendant's Final Argument filed May 16, 2014. C.R. 81-91, which clearly
narrates the truth of the transaction.
It is also clear from Hornsby's testimony that she put no money whatsoever
in the repair of the property, which would leave only Appellant's expenditures for
repairs, utilities and taxes. Why would a man enter into an agreement in which he
paid to improve another person's property, put his own money into the venture and
expected nothing in return? He wouldn't, and he didn't.
Appellant's Brief Page 3
The award of attorney's fees isjudicial error as none of the actions meet the
criteria of Tex.Bus.& Comm. Code §27.01.
Appellant bought and paid for the unencumbered 5 acre tract which was
deeded to him and suffered injury when the court ruled against him.
ARGUMENTS AND AUTHORITIES
ISSUE 1
DID APPELLANT SUFFER AS A RESULT OF INEFFECTIVE COUNSEL
Mr. Green never filed a counterclaim for breach of contract or quantum
meruit for the extensive work that Appellant had performed, nor did he prove up
justifiable reliance or a substantial change in his position based on his reliance
upon Hornsby's promises, assurances, and representations.
Mr. Green did not raise equitable estoppel. Appellant could not win without
proper pleadings, and the matter was settled by bench trial, so a jury never heard
nor determined the underlying facts. Unpled causes of action or defenses that are
not pled or sworn to or verified as required under the rules will never win in court,
as they are never presented.
Mr. Green did not present any expert witnesses.
Although Mr. Green attached as Exhibit D, some contractor estimates and
bills, pool expenses and other invoices, the documents were not properly
presented. There was no offer of proof nor was there a business records affidavit.
Appellant's Brief Page 4
The case opinions on hearing disabilities in Texas deal with the violation of
Art. 1 Sec. 10, which enumerates rights in a criminal action. However, when one
is subject to loss of property, and make no mistake, Appellant had cl~se to
$100,000 at stake in this case, to deprive him of assistive listening device is
imposing an unnecessary disability upon him. To try him with no listening device
is a violation of the Texas Constitution Art. 1, Sec. 19 and the Americans with
Disabilities Act.
Appellant claims that the court is in violation of the Americans with
Disabilities Act by not supplying Appellant with an assistive listening advice.
In reading the transcript, Appellant is aware that there were many
discrepancies in the testimony of Hornsby and her attorney, but he did not clearly
hear any of the proceedings in the courtroom and therefore could not alert his
attorney to the misrepresentations.
ISSUE 3
DID THE COURT ERR WHEN IT AWARDED ATTORNEY'S FEES
Attorney's fees cannot be awarded on the basis of Texas Business and
Commerce Code, Section 27.01. First, Hornsby's pleadings to not claim fraud as it
applies to Tex.Bus.& Comm.Code, §27.01, that code does not apply and cannot be
used as a means to obtain attorney's fees.
Appellant's Brief Page 6
The statute of limitations on unjust enrichment at most is two years.
Plaintiff amended her petition and claimed unjust enrichment. The contract
between Appellant and Hornsby was dated November 3, 2009. The unjust
enrichment claim was pled on April 21, 2014.
Mr. Green never had Appellant submit all his expenditures for the case, nor
did Mr. Green prepare Appellant's testimony for trial.
There is no question that Appellant did not have competent counsel.
ISSUE 2
DID THE COURT ERR WHEN IT IGNORED APPELLANT'S HARD OF
HEARING DISABILITY
It is obvious from the transcript that Appellant has a hearing impairment,
1
yet, no accommodation was made for said problem. The transcript is replete with
mentions of his inability to hear properly. Although the courtroom is equipped
with assisted hearing devices, none was offered to Appellant. The only
accommodation made by the judge was to offer to tum up the volume on the
speakers. As a result, Appellant suffered a disability through the entire trial as he
could not hear nor contribute to his case.
1 Rather than cite the exact page and lines in the transcript where it is obvious Appellant cannot
hear, Appellant refers to the transcript in its entirety to show Appellant could not properly hear.
Appellant's Brief Page 5
Section 27.01 only applies to misrepresentations of material fact made to
induce another to enter into a contract for the sale of land or stock. A loan
transaction, even if secured by land, is not considered to come under the statue.
Greenway Bank & Trust v. Smith, 679S.W.2d 592, 596 (Tex.App.-Houston [1st
Dist.] 1984, writ ref'd n.r.e.). Because there was neither a contract for, nor a sale
of,loan or stock between the parties involved in this case, §27.01 does not apply,
and therefore attorney's fees under this section cannot be awarded. Burleson State
Bankv. Plunkett, 27 S.W.3d 605, (Tex.-App.,Waco, 2000.)
Hornsby did not sell her property to Appellant, she conveyed it to him as
security for his performance of the contract between the two of them, which was:
Appellant was to pay for reconstruction and repair of the property in order to be
able to perform a short sale on Hornsby's property so she would not be subject to
foreclosure. Appellant breached the contract, stopped the work and allowed the
foreclosure to occur after Appellant had paid for most of the repairs and work on
the property.
Hornsby did not allege any facts to show she suffered injury as a result of
the alleged misrepresentation regarding the contractual arrangements with
Appellant. Injury is an essential element of a fraud claim. Hornsby's property was
set for foreclosure before she met Appellant, and Hornsby's property was
Appellant's Brief Page 7
foreclosed. Vinewood Capital, LLC v. Sheppard Mullin Richter & Hampton, LLP,
No. 4:10-CV-220-Y, (U.S.Dist.Ct., N.D., Texas Fort Worth Division, 2010).
Appellant wasthe only party injured.
PRAYER
Appellant prays that this Court find in Appellant's favor, reverse the
judgment of the Bell County Court and render a judgment in favor of Appellant
that he was injured by not having a hearing assistance device, and he was the one
who suffered injury, and that attorney's fees cannot be awarded under the Tex.Bus.
& Comm. Code whereby they were brought.
. Respectfully submitted,
1601 Eagle Wing Drive
Cedar Park, Texas 78613
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of Appellant's
Briefwas sent by U. S. Postal Service on July 13,2015 to:
John Stoebner
2106 Birdcreek Drive
Temple, Texas 76502
(
Appellant's Brief : Page 8
CERTIFICATE OF COMPLIANCE
I, Jerry Hofrock, certify that the word count in this brief is 1,935 words.
.Appellant's Brief Page 9
APPENDIX
JUDGMENT FROM DISTRICT COURT
Appellant's Brief Page 10
No.2S3,616-C
4Jl
JUDY HORNSBY, § INTHE DISTRICT coultt O.
Plaintiff, § C en a
VS.
§
§ BELL couHl. 1
``I·
~Y
.JERRY HOFROCK,
§
§ ii:
Defendant. § I 69th JUDICIAL DIS'IlUdii
2 -a; ?c;
JUDGMENT
On May 5, 2014, the above case was called for trial. Plaintiff, Judy Hornsby.
appeared in person and through her attorney and announced ready for trial. Defendant,
Jerry Hofrock, appeared in person and through his attorney and announced ready for trial.
All matters in controversy, legal and factual, were submitted to the Court for its
determination. The Court heard evidence and arguments of counsel and through a
Memorandum Ruling dated May 23, 2014, announced its decision for Plaintiff. Plaintiff
filed a motion for judgment based on the court's decision.
The Court hereby RENDERS judgment for Plaintiff.
The Court ORDERS the rescission and cancellation of all docwnents purporting
to convey any interest from Plaintiff to Defendant in the real property that is the subject
of this cause. These documents include: (1) a Special Warranty Deed With Vendor's
Lien dated November 3, 2009. filed as Jnstrument No. 201O~00010120 in the real
property records of Bell County, Texas, a copy of which is attached hereto as Exhibit
"A"; (2) a Special Warranty Deed With Vendor's Lien dated November 3,2009, filed as
Instrument No. 201 I~00033904 in the real property records of Bell County, Texas, a copy
of which is attached hereto as Exhibit "B"; (3) a Deed of Trust dated November 3,2009,
filed as Instrument No. 2010-00010121 in the real property records of Bell County,
SCAN
..... 1..,:U-Page
14
*
~ ......
FINAL JUDGMENT I of2
Cause No. 253,616-C
11111111.1111111
Texas, a copy of which is attached hereto as Exhibit "C"; and (4) an Affidavit and
Memorandum of Agreement Concerning Real Estate, filed as Instrument No. 2009-
00041841 in the real property records of Bell County, Texas, a copy of which is attached
hereto as Exhibit "0".
Plaintiff requested reasonable attorney fees under Section 27.01 of the Texas
Business and Commerce Code. Plaintiff offered evidence at trial proving reasonable and
necessary attorney fees in the amount of $13,701.09. The Court finds that Defendant
committed fraud in a real estate transaction and therefore ORDERS that Defendant shall
pay Plaintiff $13,701.09 for attorney fees, and that Plaintiff shall recover from Defendant
post-judgment interest on any unpaid sums in the amount of 5% per year from the date of
judgment until paid.
The Court further ORDERS that Plaintiff recover all costs of court from
Defendant.
This judgment is final and disposes of all claims and all parties and is appealable.
All relief not expressly granted by this judgment is denied.
The Court orders that execution issue for this judgment.
SIGNED ON _ __:...'_B'.....,.:7L_;___ day Of_+~+. ~ ..,_____ " 2014.
PRESIDING JUDGE
FINAL JUDGMENT Page 2 of2
Cause No. 2S3,616·C