Daniel Mandarino, Carrie Mandarino, Laura Doyle, Robert Church, Brett Beals and Linda Beals as Trustees of the Beals Family Revocable Trust, Robert A. Schalbe, William H. Gay, Jr., Riccardio D. Gay, Eric Johnstone, Rafal Zielinski and Vally Mestroni v. Sherwood Lane Investments, LLC ( 2015 )

ACCEPTED
01-15-00192-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/3/2015 1:52:05 PM
CHRISTOPHER PRINE
CLERK
NO.
01-­‐15-­‐00192-­‐CV
FILED IN
1st COURT OF APPEALS
IN
THE
COURT
OF
APPEALS
HOUSTON, TEXAS
FOR
THE
FIRST
DISTRICT
OF
TEXAS
AT
HOUSTON
9/3/2015 1:52:05 PM
CHRISTOPHER A. PRINE
Clerk
DANIEL
MANDARINO,
et
al.,
Appellants,
v.
SHERWOOD
LANE
INVESTMENTS,
LLC,
Appellee.
APPELLEE’S
UNOPPOSED
FIRST
MOTION
FOR
EXTENSION
OF
TIME
TO
FILE
APPELLEE’S
BRIEF
TO
THE
HONORABLE
COURT
OF
APPEALS:
Pursuant
to
Texas
Rules
of
Appellate
Procedure
10.5(b)
and
38.6(b),
Appellee,
SHERWOOD
LANE
INVESTMENTS,
LLC
files
this
Unopposed
First
Motion
for
Extension
of
Time
to
File
Appellee’s
Brief,
and
shows
the
following:
1. On
August
6,
2015,
Daniel
Mandarino,
Carrie
Mandarino,
Laura
Doyle,
Robert
Church,
Bret
Beals
and
Linda
Beals
as
Trustees
of
the
Beals
Family
Revocable
Trust,
Robert
A.
Schalbe,
William
H.
Gay,
Jr.,
Riccardio
D.
Gay,
Eric
Johnstone,
Rafal
Zielinski
and
Vally
Mestroni
(collectively,
“Appellants”)
filed
Appellants’
Brief.
2. On
February
25,
2015,
Appellants
filed
their
Designation
of
Clerk’s
Record.
See
Appendix
1
-­‐
Designation
of
Clerk’s
Record.
3. Appellants’
Designation
included
the
following
four
items:
1)
Plaintiff’s
Reply
to
Defendants
Daniel
Mandarino,
Carrie
Mandarino,
Laura
Doyle,
Brett
Beals
and
Linda
Beals
as
Trustees
of
the
Beals
Family
Revocable
Trust,
Robert
Church,
Robert
Schalbe,
William
H.
Gay,
Jr.,
Riccardio
D.
Gay,
Eric
Johnstone,
Rafal
Zielinski,
and
Vally
Mestroni’s
Response
to
Plaintiff’s
Motion
for
Summary
Judgment—filed
September
25,
2014;
2)
Exhibit
F
to
Plaintiff’s
Reply;
3)
Exhibit
F-­‐A
to
Plaintiff’s
Reply;
and
4)
Plaintiff’s
Proposed
Order
to
Plaintiff’s
Objections
and
Motion
to
Strike
Defendants
Daniel
Mandarino,
Carrie
Mandarino,
Laura
Doyle,
Brett
Beals
and
Linda
Beals
as
Trustees
of
the
Beals
Family
Revocable
Trust,
Robert
Church,
Robert
Schalbe,
William
H.
Gay,
Jr.,
Riccardio
D.
Gay,
Eric
Johnstone,
Rafal
Zielinski,
and
Vally
Mestroni’s
Summary
Judgment
Evidence—filed
September
25,
2014.
Id.
at
page
3.
4. These
four
items
are
not
present
in
the
clerk’s
record—but
they
are
pertinent
to
and
necessary
for
the
arguments
Appellee
makes
in
its
Brief.
5. On
September
2,
2015,
Appellee
filed
a
supplemental
request
with
the
clerk
to
include
the
four
missing
items.
A
copy
of
the
letter
is
attached
to
this
motion
as
Appendix
2.
2
6. Appellee’s
Brief
is
due
on
Tuesday,
September
8,
2015.1
7. Appellee
requests
an
additional
30
days
to
file
its
Brief,
extending
the
time
to
file
to
October
8,
2015.
8. No
prior
extensions
have
been
granted
to
extend
time
to
file
Appellee’s
Brief.
9. This
request
is
not
sought
for
delay
but
so
that
justice
may
be
done.
PRAYER
FOR
RELIEF
For
these
reasons,
Appellee
Sherwood
Lane
Investments,
LLC
asks
the
Court
to
grant
an
extension
of
time
to
file
its
brief
until
October
8,
2015.
Respectfully
submitted,
DANIELS
&
GENTLE,
LLP
By:
/s/
Douglas
A.
Daniels
Douglas
A.
Daniels
State
Bar
No.
00793579
Jeremy
A.
Williams
State
Bar
No.
24090467
douglas.daniels@danielsgentle.com
jeremy.williams@danielsgentle.com
6363
Woodway
Dr.,
Suite
980
1
30
days
after
August
6,
2015
is
Saturday,
September
5,
2015—which
extends
Appellee’s
deadline
to
file
to
Monday,
September
7,
2015.
See
TEX.
R.
APP.
P.
4.1(a)
(extending
the
period
to
file
on
the
next
day
that
is
not
a
Saturday,
Sunday,
or
legal
holiday).
Furthermore,
September
7,
2015
is
a
legal
holiday
extending
Appellee’s
deadline
to
file
its
Brief
to
Tuesday,
September
8,
2015.
3
Houston,
Texas
77057-­‐1759
(713)
979-­‐4279
Telephone
(713)
979-­‐4270
Facsimile
Attorneys
for
Appellee
CERTIFICATE
OF
SERVICE
I
certify
that
I
have
complied
with
Texas
Rules
of
Civil
Procedure
21
and
21a
and
that
a
true
and
correct
copy
of
the
above
and
foregoing
document
has
been
served
on
the
following
counsel
of
record
by
the
means
indicated
below
this
3rd
day
of
September,
2015.
Teri
A.
Walter
Glen
Nordt
Walter
Law
Firm,
P.C.
1111
North
Loop
West
115
Houston,
Texas
77056
(713)
529-­‐2020
Office
(713)
529-­‐2266
Facsimile
Attorneys
for
Appellants
twalter@prevaillawyers.com
gnordt@prevaillawyers.com
By
e-­‐service
and/or
e-­‐mail
and/or
certified
mail,
return
receipt
requested
/s/
Douglas
A.
Daniels
Douglas
A.
Daniels
4
2/25/2015 12:53:11 PM
Chris Daniel - District Clerk Harris County
Envelope No. 4278320
By: Phyllis Washington
Filed: 2/25/201512:53:11 PM
WALTER LAW FIRM, P. C.
1111 North Loop West Suite 1115
Houston, Texas 77008
TERI A. WALTER Phone 713 529-2020
BOARD CERTIFIED- CIVIL TRIAL LAW Direct 832 8319810
TEXAS BOARD OF LEGAL SPECIALIZATION Fax 713 529-2266
twalter@prevalllawyers.com
February 25, 2015
Chandra Williams
Marcella Henderson
Clerk, 1641h District Court
201 Caroline 12th Floor
Houston, TX 77002
Re: Cause No. 2014-32347, Sherwood Lane Investments, LLC v. Cal State Investment Limited
Partnership, Eugene E. Volluci, Daniel Mandarino, Carrie Mandarino, Armando La Fontaine,
Jennifer La Fontaine, Laura Doyle, Robert Church, Bret Beals and Linda Beals as Trustees
of the Beals Family Revocable Trust, Robert A. Schalbe, William H. Gay, Jr., Riccardio D. Gay,
Eric Johnstone, Rafal Zielinski and Vally Mestroni; In the 1641h Judicial District Court; Harris
County, Texas
Dear Ms. Williams & Ms. Henderson:
Please included the following documents in the clerk's record for the appeal of this matter:
1. 06/05/14 SHERWOOD's Original Petition and Jury Demand
2. 07/07/14 Defendants' Original Answer
3. 07/28/14 SHERWOOD's Motion for Summary Judgment
Exhibit A Affidavit of John Gilmore
Exhibit B Affidavit of James Hale
Exhibit B-1 Assignment of Promissory Note
Exhibit B-2 Email from Jim Hale to Laura Doyle August 26, 2009
Exhibit C Affidavit of Herbert B. Richardson
Exhibit C-1 Wraparound Promissory Note
Exhibit D Affidavit of Jeffrey Compton
Exhibit E Affidavit of Douglas A. Daniels
Proposed Order
Appendix 1
WALTER LAW FIRM, PC
February 25, 2015
Page 2
4. 08/15/14 Defendants' Motion for Continuance of Motion for Summary Judgment
Exhibit A- Commercial Contract- Improved Property
Proposed Order
5. 08/20/14 SHERWOOD Response to Motion for Continuance of MSJ
Proposed Order
6. 08/22/14 Amended Notice of Oral Hearing 9/26/14 @ 10:00 AM
7. 09/10/14 Agreed Motion for Substitution of Counsel (TAW for Defendants
Mandarino et. al.)
8. 09/11/14 Order for Substitution of Counsel for (TAW for Defendants Mandarino
et. al.)
9. 09/18/14 Defendants' (Mandarino et. al.) Amended Answer
10. 09/19/14 Defendants' (Mandarino et. al.) Objections to Summary Judgment Evidence
Proposed Order
11. 09/19/14 Defendants' (Mandarino et. al.) Response to Motion for Summary Judgment
Exhibit A Commercial Contract-Improved Property
Exhibit B Deed of Trust and Security Agreement (securing First Lien
Note) to Morgan Guaranty Trust Company, dated June 27,
2001
Exhibit C Assignment of Deed of Trust and Security Agreement
(securing First Lien Note) to Wells Fargo Bank, dated January
2, 2002
Exhibit D Deed of Trust (Wraparound Financing) dated October 16,
2006
Exhibit E Assignment of Mortgage (securing First Lien Note) to Nueva
Villa Apartment, LLC, dated March 31, 2010
Exhibit F Substitute Trustee's Deed (foreclosing First Lien Note) dated
April12, 2010, {foreclosure of the property on Aprll6, 2010)
Exhibit G Records of the Texas Secretary of State regarding Sherwood
Pines, Ltd
Appendix 1
WALTER LA IV Flllllf, PC
February 25, 2015
Page 3
Exhibit H Records of the Texas Secretary of State, Certificate of
Formation of Plaintiff, SHERWOOD LANE INVESTMENTS, LLC.
Exhibit I Letter dated March 10, 2008 from Sherwood Pines, ltd.
signed by Herbert B. Richardson and John Gilmore,
addressed to James Hale, President of Lee Wallis, Inc.
Exhibit J Commission Agreement for the property located at 4211
Sherwood Lane, Houston, TX
Exhibit K letter from the selling broker
Exhibit L Affidavit of Daniel Mandarino
Exhibit M Affidavit of Carrie Mandarino
Exhibit N Affidavit of Laura Doyle
Exhibit 0 Affidavit of Robert Church
Exhibit P Affidavit of Brett Beals as Trustee of the Beals Family
Revocable Trust
Exhibit Q Affidavit of linda Beals as Trustee of the Beals Family
Revocable Trust
Exhibit R Affidavit of Robert A. Schalbe
ExhibitS Affidavit of William H. Gay, Jr.
Exhibit T Affidavit of Riccardio D. Gay
Exhibit U Affidavit of Eric Johnstone
Exhibit V Affidavit of Rafal Zielinski
Exhibit W Affidavit of Vally Mestroni
Exhibit X Tlmeline Summary of Summary Judgment Evidence
Proposed Order
12. 09/25/14 SHERWOOD's Objections and Motion to Strike Defendants' Daniel
Mandarino, et al. Summary Judgment Evidence
Proposed Order
13. 09/25/14 SHERWOOD's Reply to Defendants' (Daniel Mandarino, et al.) Response to
SHERWOOD's Motion for Summary Judgment
Exhibit F Affidavit of Jeffrey Compton
Exhibit F-A Second Lien Amount Unpaid Calculation
14. 09/30/14 SHERWOOD's 2nd Amended Notice of Oral Hearing- SF 11/14/14@ 10
Appendix 1
WALTER LAW FIRM, PC
February 25, 2015
Page 4
15. 10/20/14 Defendants' (Mandarino et. al.) Supplemental Response to SHERWOOD's
Motion for Summary Judgment and Cross Motion for Interlocutory
Summary Judgment Regarding Acceleration and/or Maturity ofWraparound
Note
Exhibit A Email Jim Hale to Laura Doyle, August 29, 2009
Exhibit B Email Jim Hale to Laura Doyle, November 3, 2009
Exhibit c Plaintiff's Original Petition (Lee Wallis Inc v Laura Doyle,
unfiled)
Exhibit D Affidavit of James Hale
Proposed Order
Notice of Hearing- SF 11.14.14 @10
16. 10/20/14 Defendants' (Mandarino et. al) Supplemental Response to SHERWOOD's
Motion for Summary Judgment and Cross Motion for Summary Judgment
Regarding Two Year Statute of Limitations
Exhibit A Deed of Trust securing Original Fixed Rate Note (first lien)
Exhibit B Deed of Trust securing Wraparound Note
Exhibit C Substitute Trustee's Deed
Proposed Order
Notice of Hearing- SF 11.14.14@ 10
17. 10/21/14 Defendants' (Mandarino et. al.) Second Amended Answer
Affidavit of Glen Nordt's
18. 10/22/14 SHERWOOD's Notice of Hearing on Motion to Strike Defendants (Daniel
Mandarino, et al.) Summary Judgment Evidence- SF 11.14.14@ 10
19. 10/22/14 Defendants' (Mandarino et. al.) Notice of Hearing on Objections to
Summary Judgment Evidence- SF 11.14.14@ 10
20. 11/7/14 SHERWOOD'S Response to Defendants' Cross-Motions for Summary
Judgment and Reply to Defendants' Supplemental Responses to Plaintiff's
Motion for Summary Judgment.
21. 12/19/14 Final Judgment
22. 01/15/15 Defendants' (Mandarino et. al.) Motion for New Trial, Motion for Specific
Rulings on Defendants' objections to Plaintiff's Summary Judgment
Evidence, and Objection to the Court's Failure or Refusal to Specifically Rule
Appendix 1
WALTERLAWFIRM,PC
February 25, 2015
Page 5
on Defendants' Objections to Plaintiff's Summary Judgment Evidence w/
Proposed Order
Notice of Hearing SF 1/30/15 @ 11
Please let me know the cost of the record as soon as It has been prepared.
Thank you very much for your assistance.
Terl A. Walter
Appendix 1
9/2/2015 1:41:45 PM
Chris Daniel - District Clerk Harris County
Envelope No. 6764363
By: Michelle Wojcik
Filed: 9/2/2015 1:41:45 PM
DANIELS &GENTLE
T R A L LAWYERS
jeremy A. Williams
6363 Woodway, Suite 980
Houston, TX 77057
(713) 979-4279 Office
(713) 979-4270 Fax
ill l' ni.Y.,'!Yilllam a danl lsgcnllc.com
September 2, 2015
Chandra Williams
Marcella Henderson
Clerk, 164th District Court
201 Caroline, 12th Floor
Houston, Texas 77002
Re: Cause No. 2014-32347; Sherwood Lane Investments, LLC. v. Cal State
Investment Limited Partnership, et al.; In the 164th Judicial District
Court of Harris County, Texas.
Case No. 01-15-00192-CV, Daniel Mandarino, eta/. v. Sherwood Lane
Investments, LLC, In the Texas First Court of Appeals, Houston, Texas.
Dear Ms. Williams and Ms. Henderson:
Please supplement the clerk's record to include the following:
1. Plaintiff's Reply to Defendants Daniel Mandarino, Carrie Mandarino,
Laura Doyle, Brett Beals and Linda Beals as Trustees of the Beals Family
Revocable Trust, Robert Church, Robert Schalbe, William H. Gay, Jr.,
Riccardio D. Gay, Eric Johnstone, Rafal Zielinski, and Vally Mestroni's
Response to Plaintiffs Motion for Summary Judgment-filed 09/25/14.
• Exhibit F
• Exhibit F-A
2. ProRosed 0rd ~ to Plaintiff's Objections and Motion to Strike Defendants
Daniel Mandarino, Carrie Mandarino, Laura Doyle, Brett Beals and Linda
Beals as Trustees of the Beals Family Revocable Trust, Robert Church,
Robert Schalbe, William H. Gay, Jr., Riccardio D. Gay, Eric Johnstone, Rafal
Zielinski, and Vally Mestroni's Summary Judgment Evidence-filed
09/25/14.
Appendix 2
[Ki
DANIELS &GENTLE
TRIAL LAWYERS
September 2, 2015
Page 2
Thank you for your assistance. Please contact me at (713) 979-4279 if you
have any questions.
Very truly yours,
DANIELS & GENTLE, LLP
/jw
Appendix 2