Sandra Saks, Lee Nick McFadin, III, and Margaret Landen Saks v. Broadway Coffeehouse LLC and Marcus Rogers, as Trustee for the Saks Children Trust A/K/A ATFL&L, a Texas Trust ( 2015 )

ACCEPTED
04-14-00734-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/6/2015 6:02:12 PM
KEITH HOTTLE
CLERK
NO. 04-14-00734-CV
_____________________
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE 4/6/2015 6:02:12 PM
KEITH E. HOTTLE
FOURTH COURT OF APPEALS Clerk
SAN ANTONIO, TEXAS
_____________________
SANDRA SAKS, LEE NICK MCFADIN, III,
and MARGARET LANDEN SAKS
Appellants
vs.
BROADWAY COFFEEHOUSE, LLC and MARCUS ROGERS, AS
TRUSTEE FOR THE SAKS CHILDREN TRUST A/K/A ATFL&L
Appellees
_____________________
BRIEF OF APPELLEES BROADWAY COFFEEHOUSE, LLC and MARCUS
ROGERS, AS TRUSTEE FOR THE SAKS CHILDREN TRUST A/K/A ATFL&L
____________________
TO THE HONORABLE COURT OF APPEALS:
NOW COME Appellees, BROADWAY COFFEEHOUSE, LLC and
MARCUS ROGERS, AS TRUSTEE FOR THE SAKS CHILDREN TRUST
A/K/A ATFL&L, and present their Brief of Appellees, and would respectfully
show the Court as follows:
IDENTITY OF PARTIES AND COUNSEL
Party: Counsel:
Landen Saks Philip M. Ross
Sandra Saks State Bar No. 17304200
Lee Nick McFadin, III ross_law@hotmail.com
1006 Holbrook Road
Appellants San Antonio, Texas 78218
Telephone: (210) 326-2100
Broadway Coffeehouse, LLC Paul T. Curl
State Bar No. 05255200
Appellee ptcurl@csg-law.com
Brittany M. Weil
State Bar No. 24051929
bmweil@csg-law.com
Herbert S. Hill
State Bar No. 24087722
hshill@csg-law.com
Curl Stahl Geis, P.C.
700 N. St. Mary’s Street,
Suite 1800
San Antonio, Texas 78205
Telephone: (210) 226-2182
Telecopier: (210) 226-1691
Marcus P. Rogers Royal Lea, III
State Bar No. 12069680
Interim Trustee royal@binghamandlea.com
Bingham & Lea, P.C.
319 Maverick Street
San Antonio, Texas 78212
Telephone: (210) 224-1819
Telecopier: (210) 224-0141
ii
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ..............................................................................iii
INDEX OF AUTHORITIES ......................................................................... vi
STATEMENT ON REFERENCES TO THE PARTIES AND THE
RECORD .................................................................................................... 1
STATEMENT OF THE CASE ..................................................................... 2
STATEMENT REGARDING ORAL ARGUMENT ........................................ 5
ISSUES PRESENTED ................................................................................ 6
STATEMENT OF FACTS ........................................................................... 7
Purchase of the Property and Formation of the Partnership .............. 7
The Probate Suit Regarding the Trust ............................................... 9
The Mediated Settlement Agreement ................................................ 9
The Arbitration Award ...................................................................... 11
Enforcement of the Arbitration Award .............................................. 12
Appeal of the Judgment on the Arbitration Award ............................ 13
SUMMARY OF THE ARGUMENT ............................................................ 14
ARGUMENT AND AUTHORITIES ............................................................ 16
ISSUE NO. 1(a): Do the Saks Parties’ Issues Nos. 1(A)
and (B) present anything for this Court’s review? ............................. 17
iii
ISSUE NO. 1(b): Did the Saks Parties waive their arguments
that (i) the summary judgment granting partition was in error
because the Partnership Agreement prohibits withdrawal of
capital; and (ii) the summary judgment winding up and
terminating the Partnership was in error because there is
no agreement to terminate the Partnership? .................................... 19
ISSUE NO. 1(c): Was it necessary for the Trial Court to
make findings of fact to support its partial summary
judgment ordering partition of the Property by sale? ........................ 20
ISSUE NO.1(d): Are there genuine issues of material fact as to: .... 22
i) whether a fair and equitable division of the Property
cannot be made; ................................................................. 23
ii) whether the purpose of the Partnership is frustrated; ......... 26
iii) whether the Trust exists and has an interest in the
Property; and .................................................................... 31
iv) whether McFadin and Landen own any interest in
the Property or the Partnership? ....................................... 34
ISSUE NO. 2(a): Did the Trial Court abuse its discretion by
awarding attorney’s fees to Coffeehouse and the Trust? ................. 37
ISSUE NO. 2(b): Did the Saks Parties waive any issue
regarding failure to segregate attorney’s fees? ................................ 50
ISSUE NO. 2(c): Did the Trial Court err in awarding the full
amount of attorney’s fees requested by Coffeehouse and the
Trust? .............................................................................................. 51
ISSUE NO. 3(a): Is the Saks Parties’ issue No. 3 regarding
the amount of the supersedeas bond moot because it has
been waived, and does this Court therefore lack jurisdiction? .......... 55
ISSUE NO. 3(b): Did the Trial Court abuse its discretion in
setting the amount of the supersedes bond? ................................... 59
iv
PRAYER ................................................................................................... 61
CERTIFICATE OF COMPLIANCE ............................................................ 63
CERTIFICATE OF SERVICE .................................................................... 63
APPENDIX
v
INDEX OF AUTHORITIES
Cases Page
Aaron Rents, Inc. v. Travis Cent. Appraisal Dist.,
212 S.W.3d 665 (Tex. App.—Austin 2006, no pet.) .................... 47-48
In re A.L.B.,
56 S.W.3d 651 (Tex. App.—Waco 2001, no pet.) ............................ 59
Amedisys, Inc. v. Kingwood Home Health Care, LLC,
437 S.W.3d 507 (Tex. 2014) ............................................................ 23
Approach Res. I, L.P. v. Clayton,
360 S.W.3d 632 (Tex. App.—El Paso 2012, no pet.) .................. 51-52
Barfield v. Holland,
844 S.W.2d 759 (Tex. App.—Tyler 1992, writ denied) ..................... 46
In re Bass,
113 S.W.3d 735, 738 (Tex. 2003, orig. proc.) .................................. 57
Beago v. Ceres,
619 S.W.2d 293 (Tex. App.—Houston [1st Dist.] 1981, no writ) ....... 30
Blankinship v. Brown,
399 S.W.3d 303 (Tex. App.—Dallas 2013, pet. denied) ................... 17
Champion v. Robinson,
392 S.W.3d 118 (Tex. App.—Texarkana 2012, pet denied) ............. 24
Chappell v. Allen,
414 S.W.3d 316 (Tex. App.—El Paso 2013, no pet.) ................. 18, 26
Cytogenix, Inc. v. Waldroff,
213 S.W.3d 479 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ...... 48
Davis v. Merriman,
No. 04-13-00518-CV, 2015 WL 1004357 (Tex. App.—San
Antonio March 4, 2015, no pet. hist.) ........................................ passim
vi
In re Estate of Hernandez,
No. 04-14-00046-CV, 2014 WL 1713566 (Tex. App.—
San Antonio April 30, 2014, no pet.) ........................................... 59-60
In re Estate of Taylor,
305 S.W.3d 829 (Tex. App.—Texarkana 2010, no pet.)................... 17
Feldman v. KPMG LLP,
438 S.W.3d 678 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) ....................................................................................... 41-42
Florey v. Estate of McConnell,
212 S.W.3d 439 (Tex. App.—Austin 2006, pet. denied) ........ 39, 45-46
46933, Inc. v. Z & B Enterprises, Inc.,
899 S.W.2d 800 (Tex. App.—Amarillo 1995, writ denied) ................ 40
Friedman v. Atl. Funding Corp.,
936 S.W.2d 38 (Tex. App.—San Antonio 1996, no writ) .................. 20
Hoard Gainer Indus. Co., Ltd. v. Gollin,
No. 01-03-01320-CV, 2005 WL 1646116 (Tex. App.—
Houston [1st Dist.] July 14, 2005, no pet.) ....................................... 57
H.S.M. Acquisitions, Inc. v. West,
917 S.W.2d 872 (Tex. App.—Corpus Christi 1996, writ denied). 18, 26
Hollywood Park Humane Soc. v. Town of Hollywood Park,
261 S.W.3d 135 (Tex. App.—San Antonio 2008, no pet.) .................. 1
I-10 Colony, Inc. v. Chao Kuan Lee,
393 S.W.3d 467 (Tex. App.—Houston [14th Dist.] 2012,
pet denied).................................................................................. 45-46
IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,
938 S.W.2d 440 (Tex. 1997) ............................................................ 21
In Interest of an Unborn Child,
153 S.W.3d 559 (Tex. App.—Amarillo 1993, no writ) ....................... 41
vii
Jones Gonzalez, P.C. v. Trinh,
340 S.W.3d 830 (Tex. App.—San Antonio 2011, no pet.) ................ 57
Morton v. Timarron Owners Ass’n., Inc.,
No. 02-13-00409-CV, 2014 WL 2619189 (Tex. App.—
Fort Worth June 12, 2014, no pet.) .................................................. 42
O’Farrill Avila v. Gonzalez,
974 S.W.2d 237 (Tex. App.—San Antonio 1998, pet. denied) ......... 51
Penhollow Custom Homes, LLC v. Kim,
320 S.W.3d 366 (Tex. App.—El Paso 2010, no pet.) ....................... 52
Provident Life and Acc. Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003) ......................................... 22-23, 31
Purvis Oil Corp. v. Hillin,
890 S.W.2d 931 (Tex. App.—El Paso 1994, no writ) ....................... 42
Reagan v. NPOT Partners I, L.P.,
No. 06-08-00071-CV, 2009 WL 763565 (Tex. App.—
Texarkana March 25, 2009, pet rev. dism’d) .................................... 58
Rizkallah v. Conner,
952 S.W.2d 580 (Tex. App.—Houston [1st Dist.] 1997, no writ) ....... 34
Roberts v. Wilson,
394 S.W.3d 45 (Tex. App.—El Paso 2012, no pet.) ....... 39, 42, 44, 49
Savell v. Savell,
837 S.W.2d 836 (Tex. App.—Houston [14th Dist.] 1992, writ
denied) ............................................................................................ 30
Smith v. Reid,
No. 04-13-00550-CV, 2014 WL 7339586 (Tex. App.—San
Antonio Dec. 23, 2014, no pet.) ....................................................... 42
Southern Concrete Co. v. Metrotec Fin. Inc.,
775 S.W.2d 446 (Tex. App.—Dallas 1989, no writ) .......................... 51
viii
Strange v. Cont’l Cas. Co.,
126 S.W.3d 676 (Tex. App.—Dallas 2004, pet. denied) ................... 17
Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 313 (Tex. 2006) .............................................. 51, 55
Valadez v. Avitia,
238 S.W.3d 843 (Tex. App.—El Paso 2007, no pet.) ................. 25, 28
Wheeler v. Phillips,
03-10-00221-CV, 2011 WL 4011455 (Tex. App.—Austin
Sept. 7, 2011, pet. denied).................................................... 39, 49-50
Zurita v. SVH-1 Partners, Ltd.,
No. 03-10-00650-CV, 2011 WL 6118573 (Tex. App.—
Austin Dec. 8, 2011, pet. denied) ................................................ 41-42
Statutes
TEX. BUS. ORG. CODE § 11.051 ............................................................. 29-30
TEX. BUS. ORG. CODE § 11.057 ............................................................. 29-30
TEX. BUS. ORG. CODE § 11.314 ............................................................. 27-28
TEX. CIV. PRAC. & REM. CODE § 37.004 ...................................................... 44
TEX. CIV. PRAC. & REM. CODE § 37.009 ........................................... 38-39, 41
TEX. CIV. PRAC. & REM. CODE § 51.012 ...................................................... 58
TEX. GOV. CODE § 22.220 .......................................................................... 58
TEX. R. APP. P. 24.2 .................................................................................. 60
TEX. R. APP. P. 24.4 ....................................................................... 55-56, 58
TEX. R. APP. P. 25.1 .................................................................................. 58
TEX. R. APP. P. 26.1 .................................................................................. 59
ix
TEX. R. CIV. P. 166a ........................................................................ 1, 20, 23
TEX. R. CIV. P. 770 ............................................................................... 23-24
x
STATEMENT ON REFERENCES TO THE PARTIES AND THE RECORD
The Parties. Appellant Sandra Saks is referred to as “Sandra.”
Appellant Margaret Landen Saks is referred to as “Landen.” Appellant Lee
Nick McFadin III is referred to as “McFadin.” Collectively, Sandra, Landen,
and McFadin are referred to as the “Saks Parties.” Appellee Broadway
Coffeehouse, LLC is referred to as “Coffeehouse.” Appellee Marcus
Rogers, as Trustee for the Saks Children Trust a/k/a ATFL&L is referred to
as the “Trust.”
The Clerk’s Record. The two-volume Clerk’s Record is cited as
CR1 [page] and CR2 [page]. Key items from the Clerk’s Record are
included in the Appendix attached to this brief and referenced as Appendix,
tab [number].
The Reporter’s Record. There are three Reporter’s Records filed in
this appeal. The Reporter’s Record from the August 19, 2014 hearing on
Coffeehouse’s Motion for Partial Summary Judgment was filed on October
22, 2014, but is not referenced herein, as it is not proper summary
judgment evidence. See TEX. R. CIV. P. 166a(c); Hollywood Park Humane
Soc. v. Town of Hollywood Park, 261 S.W.3d 135, 139 n. 2 (Tex. App.—
San Antonio 2008, no pet.) The Reporter’s Record from the October 31,
2014 hearing on the Saks Parties’ Motion to Suspend and Supersede
1
Judgment and to Set the Amount of Supersedeas Bond was filed on
November 14, 2014, and is cited as Nov. RR [page]:[line]. The Reporter’s
Record from the October 20, 2014 trial on the merits was filed on
December 19, 2014, and is cited as Dec. RR [page]:[line].
STATEMENT OF THE CASE
Some of the underlying circumstances of this case are already
reported in this Court’s opinion in Davis v. Merriman, No. 04-13-00518-CV,
2015 WL 1004357 (Tex. App.—San Antonio March 4, 2015, no pet. hist.),
which involved a dispute over the Trust and its various properties. At the
center of this lawsuit is a property in which the Trust owns an interest, a
commercial building located at 5321 Broadway, San Antonio, Texas, and
its adjoining parking lot (the “Property”), more specifically described as
follows:
Lot Four (4), Block Thirty-Three (33), Alamo
Heights, City of Alamo Heights, Situated in Bexar
County, Texas, according to Plat thereof Recorded
in Volume 105, Pages 29-296, Deed and Plat
Records of Bexar County, Texas.
CR2 134; Appendix, tab 18. The side of the Property facing Broadway is
occupied by Starbucks, and the other side is occupied by Nix Health Care
System. Coffeehouse and the Trust are joint owners of the Property, and
2
are also joint owners of 5321 Broadway Partners (the “Partnership”), the
entity which manages and holds equitable title to the Property.
Due to contentious litigation involving the Trust and the Saks Parties,
and the Saks Parties’ absurd persistence in making claims against the
Property and Partnership, in spite of court orders rejecting their claims,
Coffeehouse found it no longer practicable or desirable to be in business
with the Trust. Coffeehouse filed this suit on October 10, 2013, seeking
declaratory judgment to invalidate the Saks Parties’ claims against the
Property and the Partnership, to partition the Property, and to wind up and
terminate the Partnership. CR1 1. Coffeehouse filed its First Amended
Petition on June 9, 2014. CR1 84; Appendix, tab 1.
On August 19, 2014, the Trial Court (the Honorable Larry Noll)
entered a Partial Summary Judgment in this case declaring that
Coffeehouse and the Trust own the Property and the Partnership; declaring
that the Saks Parties, as well as other parties, own no interest in the
Property or the Partnership; declaring that certain assignments and deeds
pertaining to the Property and the Partnership are void and of no force or
effect; and ordering partition of the Property by sale, and the winding-up
and termination of the Partnership. CR2 369; Appendix, tab 8.
3
On September 16, 2014, the Trust filed its Crossclaim in this case,
joining in and asserting the same claims asserted by Coffeehouse against
Sandra and McFadin. CR2 373.
On October 20, 2014, the parties appeared for non-jury trial on the
sole issue of attorney’s fees, and the Court entered a final Judgment,
incorporating the previous Partial Summary Judgment. CR2 437;
Appendix, tab 9. The Trial Court (the Honorable Antonia Arteaga) awarded
attorney’s fees to Coffeehouse and the Trust against the Saks Parties
jointly and severally. CR2 437. Immediately after the Judgment was
entered on October 20, 2014, the Saks Parties filed their Notice of Appeal.
CR2 434.
Prior to trial, on October 15, 2014, the Saks Parties had filed a
premature Motion to Suspend and Supersede Judgment and to Set the
Amount of Supersedeas Bond. CR2 397. The day following the trial, on
October 21, 2014, the Saks Parties filed an Amended Motion to Suspend
and Supersede Judgment and to Set the Amount of Supersedeas Bond.
CR2 444. Coffeehouse responded on October 31, 2014, and a hearing
was held that same day. CR2 459. The Trial Court (the Honorable Antonia
Arteaga) entered an Order dated October 31, 2014, setting the amount of
the supersedeas bond at $170,237.76. CR2 457. On November 3, 2014,
4
the Saks Parties filed a Motion to Suspend the Judgment and to Review
Order Setting the Amount of Supersedeas Bond in this Court, which was
denied on November 7, 2014. Appendix, tabs 12 and 13. On November
17, 2014, the Saks Parties filed a Motion to Reconsider En Banc Motion to
Suspend the Judgment and to Review Order Setting the Amount of
Supersedeas Bond, which this Court also denied on November 21, 2014.
Appendix, tabs 14 and 15.
STATEMENT REGARDING ORAL ARGUMENT
Coffeehouse and the Trust request oral argument only if the Court
grants oral argument to the Saks Parties. The Saks Parties have filed a
disjointed and conclusory brief, which does not properly present the issues
for this Court’s review. The Saks Parties’ Issue Nos. 1(A) and 1(B) are
unpreserved arguments that are unsupported by citations to the record or
proper legal authority. Such arguments are not properly before this Court
and have been waived. The Saks Parties’ Issue No. 3 is moot because it
has already been decided by this Court, the Saks Parties failed to seek
further review in the Supreme Court, and this Court lacks further jurisdiction
to consider it. The only issue that is arguably before this Court is the Saks
Parties’ Issue No. 2 regarding whether the Trial Court abused its discretion
5
in awarding attorney’s fees. This issue is straightforward, and does not
require oral argument.
ISSUES PRESENTED
ISSUE NO. 1(a): Do the Saks Parties’ Issues Nos. 1(A) and
(B) present anything for this Court’s
review?
ISSUE NO. 1(b): Did the Saks Parties waive their arguments
that (i) the summary judgment granting
partition was in error because the
Partnership Agreement prohibits
withdrawal of capital; and (ii) the summary
judgment winding up and terminating the
Partnership was in error because there is
no agreement to terminate the
Partnership?
ISSUE NO. 1(c): Was it necessary for the Trial Court to
make findings of fact to support its partial
summary judgment ordering partition of
the Property by sale?
ISSUE NO. 1(d): Are there genuine issues of material fact
as to:
i) whether a fair and equitable division
of the Property cannot be made;
ii) whether the purpose of the
Partnership is frustrated;
iii) whether the Trust exists and has an
interest in the Property; and
iv) whether McFadin and Landen own
any interest in the Property or the
Partnership?
6
ISSUE NO. 2(a): Did the Trial Court abuse its discretion by
awarding attorney’s fees to Coffeehouse
and the Trust?
ISSUE NO. 2(b): Did the Saks Parties waive any issue
regarding failure to segregate attorney’s
fees?
ISSUE NO. 2(c): Did the Trial Court err in awarding the full
amount of attorney’s fees requested by
Coffeehouse and the Trust?
ISSUE NO. 3(a): Is the Saks Parties’ Issue No. 3 regarding
the amount of the supersedeas bond moot
because it has been waived, and does this
Court therefore lack jurisdiction?
ISSUE NO. 3(b): Did the Trial Court abuse its discretion in
setting the amount of the supersedeas
bond?
STATEMENT OF FACTS
Purchase of the Property and Formation of the Partnership
By Assumption Warranty Deed dated January 11, 1996, Guy
Chipman, Jr. sold the Property to the Trust. CR1 153. Several days later,
by Warranty Deed dated January 16, 1996, the Trust conveyed an
undivided twenty-five percent (25%) interest in and to the Property to Perry
T. Donop, Jr. (“Donop”). CR1 157.
On January 16, 1996, Donop and the Trust also entered into a
Partnership Agreement by which the Partnership was formed. CR1 163;
Appendix, tab 3. The stated purpose of the Partnership was to own,
7
operate, and manage the Property. CR1 163. Record title to the Property
remained jointly in the name of Donop (an undivided 25% interest) and the
Trust (an undivided 75% interest). Pursuant to Paragraph 5 of the
Partnership Agreement, Donop and the TRUST transferred equitable title to
the Property to the Partnership. CR1 163-164; Appendix, tab 3.
By Special Warranty Deed dated August 22, 2012, Donop conveyed
his undivided 25% interest in and to the Property to Coffeehouse, of which
Donop is Manager. CR1 170. On the same date, Donop executed an
Assignment and Assumption of Partnership Interest, whereby he assigned
all of his interest in the Partnership to Coffeehouse. CR1 169. Attached
hereto as Appendix, tab 2, is a flow chart illustrating the Property’s chain of
title. CR1 320.
On or about September 6, 2012, Coffeehouse and Saks Broadway,
LLC (“Saks Broadway”) executed an unrecorded Agreement Confirming
Interests in Partnership, which recited that the Trust had previously
transferred all of its right, title and interest in and to the Property and the
Partnership to Saks Broadway. However, no such transfer or conveyance
from the Trust to Saks Broadway was ever executed, and Saks Broadway
does not own any interest in the Property or the Partnership. CR1 160-
161.
8
The Probate Suit Regarding the Trust
On or about August 17, 2011, Lauren Saks Merriman (“Merriman”)
filed suit against her mother, Sandra, and Diane Flores (“Flores”), Sandra’s
sister, who was then Trustee of the Trust, in Cause No. 2011-PC-3466, in
Bexar County Probate Court (the “Probate Suit”). CR1 174; See Davis,
2015 WL 1004357; Appendix, tab 7. In the Probate Suit, Merriman
requested an accounting of the Trust and to remove Flores as Trustee, due
to Flores’ numerous breaches of fiduciary duty and mismanagement of
Trust assets. CR1 174. On or about December 21, 2011, the day before a
scheduled hearing to remove Flores as Trustee, Flores signed a document
reciting that the Trust had been terminated. CR1 323. The next day,
however, on December 22, 2011, the Probate Court removed Flores as
Trustee and appointed Marcus Rogers as Interim Trustee of the Trust.
CR1 183.
The Mediated Settlement Agreement
The parties to the Probate Suit eventually mediated their claims, and
entered into a Mediated Settlement Agreement (the “MSA”) effective April
2, 2012. CR1 188; Appendix, tab 4. Because of Flores’ attempted
termination of the Trust and due to suspicions that Flores had fraudulently
assigned interests in the Partnership to Sandra, the MSA included an
9
agreement by Sandra and Flores to transfer and assign any and all of their
right, title, and interest in and to the Partnership back to the Trust. Sandra,
Flores, Merriman, Landen (who is Sandra’s other daughter), and the Trust
(through its Interim Trustee, Marcus Rogers) all signed the MSA. CR1 188;
Appendix, tab 4. The Probate Court approved the MSA on May 8, 2012.
CR1 193.
Sandra, Landen, and Flores then failed to comply with the MSA.
Instead, on or about August 15, 2012, Sandra filed of record two
documents attached to an Affidavit: a document titled “Irrevocable
Assignment of Partnership Interest,” dated January 6, 1996, signed by
Flores, purporting to assign 99% of the Trust’s right, title and interest in the
Partnership to Sandra (the “1996 Assignment”); and another document
titled “Assignment of Interest in 5321 Broadway Partners,” dated December
21, 2011, also signed by Flores, purporting to terminate the Trust and
assign its 75% interest in the Partnership to Merriman and Landen (the
“2011 Assignment”). CR1 321. These invalid documents were filed after
the Probate Court had removed and replaced Flores as trustee of the Trust,
and served no purpose except to thwart the MSA.
10
The Arbitration Award
As of September 5, 2012, Sandra, Landen and Flores still had not
complied with the MSA. The Probate Court then ordered Sandra, Landen,
Merriman, and the Trust to mediate and arbitrate any disputes over the
MSA, as required under the terms of the MSA. CR1 195. This second
mediation was unsuccessful, so the matter was arbitrated by the mediator,
Thomas J. Smith. On October 24, 2012, Mr. Smith, as Arbitrator, entered
Findings and a Final Award (the “Arbitration Award”). CR1 200; Appendix,
tab 5. The Arbitrator found that the properties described in the MSA,
including the interest in the Partnership, were Trust property. The
Arbitrator also held that Sandra’s, Landen’s, and any other party’s failures
to comply with the MSA’s requirement to transfer their right, title and
interest in the Trust property were not made in good faith or for just cause.
The Arbitrator ordered Sandra, Landen and any other party to the MSA to
execute the required documents necessary to effectuate the transfer,
purpose, and intent of the MSA, which documents were attached to and
incorporated by reference in the Arbitration Award. On May 7, 2013, the
Probate Court confirmed the Arbitration Award, and entered it as a
judgment of the Court. CR1 198.
11
Sixteen days after the Probate Court had entered the Arbitration
Award as a judgment of the Court, on or about May 23, 2013, Sandra filed
of record two more documents: a Deed dated April 21, 2012, by which she
purported to convey all of her right, title, and interest in the Property to
McFadin (the “McFadin Deed”); and a document titled “Transfer
Conveyance Assignment of Interest in the 5321 Broadway Partners
Agreement,” by which she purported to assign all of her right, title and
interest in the Partnership to McFadin (the “McFadin Assignment”)
(collectively, with the 1996 Assignment and the 2011 Assignment, the
“Assignments”). CR1 333-343. At the time the above-described
instruments were executed and filed of record, Sandra had no interest in
the Property or the Partnership, but in any event, the McFadin Deed and
McFadin Assignment were void and ineffective to transfer any interest in
the Property or the Partnership because McFadin acquired any such
interest subject to the Probate Suit, the MSA, and the final determination in
the Arbitration Award.
Enforcement of the Arbitration Award
Despite being ordered by the Arbitrator and the Probate Court to
execute the documents necessary to transfer any right, title, and interest in
the Property and the Partnership to the Trust, Sandra and Landen still
12
continued to refuse to sign such conveyances. On September 17, 2013,
the Probate Court entered an Order Granting Motion to Enforce, ordering
Sandra and Landen to execute the required documents, including a
Conveyance Agreement and Deed (the “Arbitration Deed”) relating to the
Property, and a Conveyance Agreement and Assignment (the “Arbitration
Assignment”) relating to the Partnership. CR1 278. When Sandra and
Landen still refused to comply, the Court entered an Order in Aid of
Enforcement of Judgment on November 14, 2013, which deemed by
operation of law that Sandra and Landen had executed the Arbitration
Deed and Arbitration Assignment transferring all right, title, and interest in
the Property and the Partnership to the Trust, as well as the other required
documents. CR1 281; Appendix, tab 6. This Order confirmed, once and
for all, title to a 75% undivided interest in the Trust, with the remaining 25%
undivided interest in Coffeehouse.
Appeal of the Judgment on the Arbitration Award
On August 2, 2013, Sandra and Landen appealed the Arbitration
Award and the Order entering the Arbitration Award as a Judgment. On
December 12, 2013, Sandra, Landen, and McFadin appealed the
November 14, 2013 Order in Aid of Enforcement of Judgment. This Court
consolidated the appeals and issued a Memorandum Opinion on March 4,
13
2015, affirming the judgment confirming the Arbitration Award and
dismissing the appeal from the Order in Aid of Enforcement of Judgment
for lack of jurisdiction. See Davis, 2015 WL 1004357. Appendix, tab 7.
SUMMARY OF THE ARGUMENT
The Saks Parties failed to adequately brief their Issues Nos. 1(A) and
1(B); therefore, they have presented nothing for this Court’s review and
have waived their complaints on these issues.
The Saks Parties also failed to raise Issues Nos. 1(A) and 1(B) in
their Responses to Coffeehouse’s Motion for Partial Summary Judgment
and Amended Motion for Partial Summary Judgment, and are presenting
these complaints for the first time on appeal. Thus, the Saks Parties have
waived these issues.
It was not necessary for the Trial Court to make findings of fact to
support its Order partitioning the Property by sale. Even if the Saks Parties
had requested findings of fact, it would have been improper for the Trial
Court to make them. Furthermore, the Trial Court did determine the shares
of the joint owners in the Property in its Order Granting Partial Summary
Judgment.
Even if the Saks Parties had not waived Issues Nos. 1(A) and 1(B),
the Trial Court’s Order Granting Partial Summary Judgment should be
14
affirmed because there are no genuine issues of material fact that (i) a fair
and equitable division of the Property cannot be made; (ii) the purpose of
the Partnership is frustrated; (iii) the Trust exists and owns an interest in
the Property; and (iv) McFadin and Landen own no interest in the Property
or the Partnership.
The Trial Court did not abuse its discretion in awarding attorney’s
fees to Coffeehouse and the Trust because they properly pleaded for
declaratory relief under Section 37.001 et seq. of the Texas Civil Practice &
Remedies Code (the “UDJA”), which relief was not duplicative of the other
relief they sought, and the Trial Court was statutorily authorized to make
the fee awards.
The Saks Parties have waived their argument regarding segregation
of attorney’s fees because they failed to file a Motion for New Trial or
otherwise object in the Trial Court. Even if the issue had not been waived,
the evidence shows that the attorney’s fees of Coffeehouse and the Trust
could not be segregated; therefore, the Trial Court’s award should be
affirmed.
The Saks Parties have already asked this Court to review the Order
setting the amount of supersedeas bond. This Court refused to overturn or
modify the Order, and the Saks Parties failed to file a petition for writ of
15
mandamus to the Supreme Court of Texas to further challenge the Order.
Therefore, the Saks Parties’ Issue No. 3 is moot and has been waived.
This Court also lacks jurisdiction to consider this issue. Even if it were
possible for the Saks Parties to further appeal the Order setting the amount
of supersedeas bond, their Notice of Appeal for this Order was untimely.
Finally, even if the Saks Parties’ Issue No. 3 were properly before this
Court, the Trial Court did not abuse its discretion in setting the amount of
supersedeas bond, and its Order should be affirmed.
ARGUMENT AND AUTHORITIES
This Court is already familiar with many of this case’s underlying facts
and arguments because this case arises out of the ongoing dispute
between the Trust and the Saks Parties. See Davis, 2015 WL 1004357.
Appendix, tab 7. Because of this dispute and the unreasonable and
unpredictable behavior of the Saks Parties, Coffeehouse’s abilities to deal
with the Trust and to effectively manage the Property have been frustrated,
and it is no longer practical for Coffeehouse to be in business with the
Trust. Due the fraudulent instruments filed of record by the Saks Parties,
Coffeehouse had no choice but to file this action seeking to cancel the
invalid instruments and quiet the Saks Parties’ claims, so that the Property
could be sold and the Partnership terminated.
16
ISSUE NO. 1(a): Do the Saks Parties’ Issues Nos. 1(A)
and (B) present anything for this
Court’s review?
In Davis, this Court held that in attempting to raise several issues,
Sandra and Landen failed to properly brief their arguments under Texas
Rule of Appellate Procedure 38.1(i). 2015 WL 1004357 at *5. Similarly,
the Saks Parties in this case have inadequately briefed Issue Nos. 1(A) and
(B) so that nothing is presented to this Court for review.
Pursuant to Texas Rule of Appellate Procedure 38.1(i), an appellant’s
brief must contain “a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.” Nothing is
presented for review if an appellate issue is unsupported by argument or
citation to the record or by proper legal authority. Davis, 2015 WL 1004357
at *5; Blankinship v. Brown, 399 S.W.3d 303, 307 (Tex. App.—Dallas 2013,
pet. denied). “Failure to cite legal authority or to provide substantive
analysis of the legal issues presented results in waiver of the complaint.” In
re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana 2010, no
pet.). “An appellate court has no duty to perform an independent review of
the record and applicable law to determine whether the error complained of
occurred.” Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—
Dallas 2004, pet. denied).
17
In briefing their Issue No. 1(A), in which they attempt to challenge the
Order Granting Partial Summary Judgment, the Saks Parties make limited
citations to the record, and fail to provide any legal authority to support their
position. The Saks Parties’ briefing of their Issue No. 1(B) does not include
a single citation to either the record or supporting legal authority. Because
the Saks Parties have failed to provide adequate support for their Issues
No. 1(A) and (B) from either the record or the applicable law, they have
presented nothing for this Court to review on these complaints.
Furthermore, on pages 14, 15, and 18 of their Brief, the Saks Parties
cite to testimony and exhibits from the November 14, 2014, Reporter’s
Record of the hearing on their Amended Motion to Set Supersedeas Bond,
which hearing was held after the Trial Court granted the Partial Summary
Judgment, and which is not part of the summary judgment record. A
review of a ruling granting a motion for summary judgment will be made
only on the record upon which the trial court’s ruling was based and only as
it existed at the time the summary judgment was signed. Chappell v. Allen,
414 S.W.3d 316, 321 (Tex. App.—El Paso 2013, no pet.); H.S.M.
Acquisitions, Inc. v. West, 917 S.W.2d 872, 878 (Tex. App.—Corpus Christi
1996, writ denied). Because the November 14, 2014, Reporter’s Record of
the hearing on the Saks Parties’ Amended Motion to Set Supersedeas
18
Bond is not summary judgment evidence, any references to said Reporter’s
Record are improper and should be disregarded.
The Saks Parties fail to make adequate citations to the record or to
appropriate legal authority, and cite to a portion of the record which is not
proper summary judgment evidence. Therefore, the Saks Parties have
presented nothing for this Court to review on their Issues Nos. 1(A) and (B),
and the Court should find that the Saks Parties have waived these
complaints.
ISSUE NO. 1(b): Did the Saks Parties waive their arguments
that (i) the summary judgment granting
partition was in error because the
Partnership Agreement prohibits
withdrawal of capital; and (ii) the summary
judgment winding up and terminating the
Partnership was in error because there is
no agreement to terminate the
Partnership?
The Saks Parties attempt to argue that the Partnership Agreement
prohibits the withdrawal of capital, and, therefore, Coffeehouse lacked
standing to request partition of the Property. The Saks Parties also try to
claim that the winding-up and termination of the Partnership is in error
because there is no agreement to terminate the Partnership. The Saks
Parties failed to present these arguments to the Trial Court in their
Responses to Coffeehouse’s Motion for Partial Summary Judgment and
19
Amended Motion for Partial Summary Judgment, and are raising them for
the first time in this appeal. CR1 350, 406; CR2 1, 152, 171, 187. Under
Texas Rule of Civil Procedure 166a(c):
Issues not expressly presented to the trial court by
written motion, answer or other response shall not
be considered on appeal as grounds for reversal.
The non-movant must expressly present to the trial court any issues or
grounds for defeating the movant’s entitlement to summary judgment.
Friedman v. Atl. Funding Corp., 936 S.W.2d 38, 41-42 (Tex. App.—San
Antonio 1996, no writ). Any issue not presented in the response to a
summary judgment motion cannot be raised later on appeal. Id. Because
the Saks Parties failed to present these issues to the Trial Court in their
responses to Coffeehouse’s motion for partial summary judgment, the court
should find that these issues have been waived for this reason, as well.
ISSUE NO. 1(c): Was it necessary for the Trial Court to
make findings of fact to support its partial
summary judgment ordering partition of
the Property by sale?
The Saks Parties claim that the Trial Court’s Order Granting Partial
Summary Judgment was in error because it failed to make findings that the
Property could not be partitioned in kind, or determine the share of each of
the joint owners in the Property. First, the Saks Parties did not request any
20
findings of fact, but even if they had, it would have been improper for the
Trial Court to make findings of fact. “Findings of fact and conclusions of
law have no place in a summary judgment proceeding.” IKB Indus.
(Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997). The
reason for this is that for summary judgment to be rendered, there must be
no genuine issue as to any material fact, and the legal grounds must be set
forth in the motion and response. Id. If the trial court properly enters
summary judgment, there are no facts to find, and the legal conclusions
have already been presented in the motion and response. Id. “The trial
court should not make, and an appellate court cannot consider, findings of
fact in connection with a summary judgment.” Id. Therefore, it was not
necessary for the Trial Court to make any findings of fact with regard to
partition of the Property.
Furthermore, the Trial Court did determine, in its Judgment, the share
of each of the joint owners of the Property. In its Order Granting Partial
Summary Judgment (which was incorporated into the final Judgment), the
Court decreed that:
BROADWAY COFFEEHOUSE, LLC, owns an
undivided twenty-five (25%) percent interest, and
that Defendant MARCUS ROGERS, AS INTERIM
21
TRUSTEE FOR THE SAKS CHILDREN TRUST
A/K/A ATFL&L, A TEXAS TRUST, owns an
undivided seventy-five (75%) percent interest, in the
following real property and improvements (the
“Property”):
Lot Four (4), Block Thirty-Three (33),
Alamo Heights, City of Alamo Heights,
Situated in Bexar County, Texas,
according to Plat thereof Recorded in
Volume 105, Pages 29-296, Deed and
Plat Records of Bexar County, Texas.
CR2 369; Appendix, tab 8. This is part of the Judgment, but the effect is
the same. The Saks Parties’ point is moot.
ISSUE NO. 1(d): Are there genuine issues of material fact
as to:
i) whether a fair and equitable division
of the Property cannot be made;
ii) whether the purpose of the
Partnership is frustrated;
iii) whether the Trust exists and has an
interest in the Property; and
iv) whether McFadin and Landen are
owners of the Property?
A summary judgment is reviewed on appeal de novo. Provident Life
and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under
22
summary judgment review, all evidence favorable to the non-movant is
taken as true, and the court indulges every reasonable inference and
resolves any doubts in favor of the nonmovant. Id., at 215. Pursuant to
Texas Rule of Civil Procedure 166a(c), the party moving for summary
judgment must show that no genuine issue of material fact exists and that it
is entitled to judgment as a matter of law. Id., at 216. When a movant
meets this burden, the burden then shifts to the non-movant to raise an
issue of fact as to at least one the elements of the movant’s claim.
Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511
(Tex. 2014).
i. There is no genuine issue of material fact that a fair
and equitable division of the Property cannot be
made.
The Trial Court’s Order Granting Partial Summary Judgment and final
Judgment both order partition of the Property by sale. CR2 371, 439. In a
suit for partition, the Court shall determine whether the property is
incapable of division so that the Property must be sold. Pursuant to Texas
Rule of Civil Procedure 770:
Should the court be of the opinion that a fair and
equitable division of the real estate, or any part
thereof, cannot be made, it shall order a sale of so
23
much as is incapable of partition, which sale shall
be for cash, or upon such other terms as the court
may direct, and shall be made as under execution
or by private or public sale through a receiver, if the
court so order . . . .
“Incapable” of partition does not mean incapable in a physical sense, but
rather the Court should focus on whether partition in kind is fair and
equitable so that the property can be divided in kind without materially
impairing its value. Champion v. Robinson, 392 S.W.3d 118, 123 (Tex.
App.—Texarkana 2012, pet denied). The party seeking partition by sale
bears the burden of proving a partition in kind would not be fair and
equitable. Id.
Coffeehouse’s summary judgment evidence shows that a partition in
kind of the Property would not be fair and equitable. Attached to
Coffeehouse’s Motion for Partial Summary Judgment is the Affidavit of
Perry Donop, Jr. (“Donop Affidavit I”), in which Donop describes the
Property as a commercial building and adjacent parking lot, leased to retail
and office tenants. CR1 161. The Property is a single platted lot.
Appendix, tab 18. Donop explains that there is no way to divide the
building or the land in a way that would not materially impair its value. CR1
24
161. Finally, Donop explains that the Property’s value is dependent on the
commercial improvements and its operation as a commercial retail and
office building, and neither the improvements nor the land underneath the
improvements can be partitioned in kind. CR1 161.
The Saks Parties fail to point to any specific evidence in the summary
judgment record that would controvert the Donop Affidavit I. It is the Saks
Parties’ burden to discuss their assertions of error and properly cite to
supporting evidence in the record. Valadez v. Avitia, 238 S.W.3d 843, 845
(Tex. App.—El Paso 2007, no pet.). An appellate court has no duty or right
to perform an independent review of the record, which would improperly
transform the court from neutral adjudicators to advocate for that party. Id.
Because it is not this Court’s duty to independently review the voluminous
summary judgment record, the Saks Parties were required to identify any
supporting evidence with proper citations to the summary judgment record,
and by failing to do so, they have presented nothing for review. See Id.
The only evidence cited by the Saks Parties in support of this issue is
from the November 14, 2014, Reporter’s Record of the hearing on
Appellants’ Amended Motion to Set Supersedeas Bond. As explained
above, the November 14, 2014, Reporter’s Record is not part of the
summary judgment record because it pertains to a separate proceeding
25
held on October 31, 2014, regarding the amount of the supersedeas bond,
and was made well after the Court entered its Order granting Partial
Summary Judgment on August 19, 2014. See Chappell, 414 S.W.3d at
321; H.S.M. Acquisitions, 917 S.W.2d at 878. Because the testimony and
evidence presented during the hearing regarding the supersedeas bond is
outside the summary judgment record, it is not within the scope of this
Court’s summary judgment review, and should be disregarded.
The evidence presented by Coffeehouse satisfies its burden to show
that there is no genuine issue of material fact that a fair and equitable
division of the Property cannot be made. CR1 161. The Saks Parties
failed to identify or cite to any summary judgment evidence that would raise
a fact question on this issue. See Chappell, 414 S.W.3d at 321 (Appellate
court would not consider voluminous summary judgment record or matters
presented at subsequent trial, but would limit scope of review to portions of
summary judgment record to which proper citations were made).
Therefore, the Order Granting Partial Summary Judgment and subsequent
final Judgment ordering partition of the Property by sale should be affirmed.
ii. There is no genuine issue of material fact that the
purpose of the Partnership is frustrated.
The Trial Court’s Order Granting Partial Summary Judgment and final
Judgment also order that the Partnership be wound-up and terminated.
26
CR2 371, 439. Under Section 11.314(1)(A) of the Texas Business
Organizations Code, a district court has jurisdiction to order the winding up
and termination of a domestic partnership if the court determines that the
economic purpose of the partnership is likely to be unreasonably frustrated.
Appendix, tab 19. Coffeehouse requested partial summary judgment
ordering the winding-up and termination of the Partnership on this basis,
supported by the Donop Affidavit I, in which Mr. Donop stated that the
economic purpose of the Partnership was frustrated by the ongoing Trust
dispute, the accusations of Flores’ mismanagement of the Trust, the
litigiousness of the Saks Parties, and their refusal to comply with court
orders and recognize the validity of the Trust. CR1 148-150, 161-162, 186-
194, 198-199, 205-206, 245-261, 281-282, 321-324, 330-343; CR2 121-
123.
The Saks Parties do not point to any summary judgment evidence to
refute the Donop Affidavit I or the other evidence, do not make a single
citation to the record on this issue, and provide no legal authority for their
argument. Rather, the Saks Parties make conclusory and unsupported
statements that “the economic purpose of the Partnership is not frustrated
by any dispute between the ATFL&L and any other parties because
ATFL&L is no longer an owner of any interest in the Property,” and “there
27
are genuine issues of material fact . . . [as to] (4) whether the purpose of
the Partnership is frustrated.” Appellants Brief, at 19-20. The requirement
that an appellant’s brief contain a clear and concise argument, including
appropriate citation to authority and to the record, is not satisfied by merely
uttering brief conclusory statements unsupported by legal citations.
Valadez, 238 S.W.3d at 845. Because the Saks Parties have raised no
genuine issue of material fact, the Order Granting Partial Summary
Judgment and final Judgment ordering winding-up and termination of the
Partnership should be affirmed.
Furthermore, Coffeehouse asserted three other bases for winding-up
and terminating the Partnership. Under Section 11.314(1)(B) of the Texas
Business Organizations Code, a district court has jurisdiction to order the
winding up and termination of a domestic partnership if the court
determines that another partner has engaged in conduct relating to the
partnership’s business that makes it not reasonably practicable to carry on
the business in partnership with that partner. Appendix, tab 19.
Coffeehouse presented summary judgment evidence that this condition
existed so that winding-up and termination of the Partnership was
necessary. The Donop Affidavit I sets forth testimony explaining that
because of the conflicts surrounding the Trust and the Saks Parties’
28
assertion of invalid and fraudulent claims to the Property and the
Partnership, as well as their absolute refusal to recognize the existence of
the Trust or comply with the Orders of the Probate Court, it is not
reasonably practicable to carry on the business with the Trust. CR1 161-
162, 186-194, 198-199, 205-206, 245-261, 281-282, 321-324, 330-343.
Furthermore, pursuant to Sections 11.051(4) and 11.057(c) of the
Texas Business Organizations Code, an event requiring the winding up of a
domestic general partnership includes:
(1) in a general partnership for a particular undertaking,
the completion of the undertaking, unless otherwise
provided by the partnership agreement; [and]
...
(3) the sale of all or substantially all of the property of
the general partnership outside the ordinary course
of business, unless otherwise provided by the
partnership agreement.
TEX. BUS. ORG. CODE § 11.057(c); Appendix, tab 19. Coffeehouse showed
the Trial Court that winding-up and termination of the Partnership was
required due to such events. Pursuant to the Partnership Agreement, the
purpose of the Partnership was to own, operate, and manage the Property,
29
which constituted all of the property of the Partnership. CR1 160, 163-164.
Because Coffeehouse (1) owns an interest in the property and (2) has a
right to present possession as a cotenant, it is entitled to partition the
Property as a matter of law. CR1 159-160, 157-158, 170-172. See Savell
v. Savell, 837 S.W.2d 836, 838 (Tex. App.—Houston [14th Dist.] 1992, writ
denied); Beago v. Ceres, 619 S.W.2d 293, 294 (Tex. App.—Houston [1st
Dist.] 1981, no writ) (holding that the right of a joint owner to partition real
property is absolute). Coffeehouse established that partition by sale is
necessary because a fair and equitable division of the Property cannot be
made, and the Trial Court ordered partition of the Property by sale. CR1
161, CR2 371, 439. Such a sale would constitute an event requiring
winding up the Partnership because it would: (1) complete the particular
undertaking for which the Partnership was formed; and (2) constitute a sale
of all of the property of the Partnership. As such, the winding up of the
Partnership is required under Sections 11.051(4) and 11.057(c) of the
Texas Business Organizations Code.
In their Brief, the Saks Parties have raised no issue regarding these
other grounds for winding up and terminating the Partnership. The Trial
Court did not specify the grounds for ordering the winding up and
termination of the Partnership; therefore, the summary judgment must be
30
affirmed if any of the theories presented to the Trial Court and preserved
for appellate review are meritorious. Provident, 128 S.W.3d at 217. Even if
there had been a genuine issue of material fact regarding whether the
purpose of the Partnership was frustrated, Coffeehouse has established
the other three bases for winding-up and termination of the Partnership as
a matter of law, and the Saks Parties have not disputed these grounds.
Therefore, the Trial Court’s ordering the winding-up and termination of the
Partnership should be affirmed.
iii. There is no genuine issue of material fact that the Trust
exists and has an interest in the Property and the
Partnership.
The Saks Parties present no specific issue on their contentions that
the Trust was terminated and that they own interests in the Property. They
do say as an unsupported conclusion buried in the body of their confusing
Brief that there are questions of fact on these issues. But these are not
issues they include in their statement of the issues in this appeal (see
Appellants’ Brief, at 3), and they entirely fail to present or support those
unsupported conclusions with proper clarity or argument. The Saks Parties
also fail to mention that these precise issues are now conclusively decided
against them by this Court’s opinion in Davis, 2015 WL 1004357. The
Court should simply disregard what the Saks Parties say about the Trust
31
being terminated or their supposed ownership, because these statements
do not support or relate to the issues they have identified in their statement
of the issues and because these issues have already been decided in favor
of the Trust and against the Saks Parties.
If this Court does entertain these issues, it should quickly reject the
outrageous position that the Trust was terminated and owns no interest in
the Property or the Partnership, despite the Probate Court’s appointment of
an interim trustee, the Arbitration Award carrying out the MSA and stating
that the Property and Partnership are Trust property, the Probate Court’s
Orders enforcing the Arbitration Award, and Trial Court’s Order Granting
Partial Summary Judgment in this case declaring that the Trust owns 75%
of the Property and the Partnership. CR1 188, 193, 198, 200, 205, 278,
281; CR2 370; Appendix, tabs 4, 5, 6, 8 and 9. Furthermore, in the
Memorandum Opinion issued in Davis, this Court affirmed the Probate
Court’s judgment confirming the Arbitration Award, finding that, based on
the MSA and the Arbitration Award which are premised on the notion that
the Trust is in existence, the Trust was never terminated. Davis, 2015 WL
1004357 at *3. Appendix, tab 7.
Additionally, the Saks Parties point to no competent summary
judgment evidence that the Trust no longer owns its 75% interest in the
32
Property and the Partnership. CR1 157, 163. The only evidence referred
to by the Saks Parties is an Affidavit of Diana Flores, dated July 1, 2014,
which they claim shows that Flores had absolute authority to execute the
1996 Assignment and the 2011 Assignment, by which Flores purported to
terminate the Trust. The Saks Parties fail to indicate the page in the record
where such Affidavit can be found, but it appears that Appellants are
referring to the Affidavit attached to Flores’ Response to Coffeehouse’s
Motion for Partial Summary Judgment. CR2 78-79. It should be noted that
Flores withdrew her opposition to Coffeehouse’s Motion for Partial
Summary Judgment prior to the hearing, when she entered into a Rule 11
Agreement agreeing to disclaim and quitclaim any interest in the Property
and the Partnership. CR2 365.
First, Flores’ statements in the Affidavit that she terminated the Trust
on December 21, 2011, and that she had authority to execute the above-
mentioned Assignments by which she allegedly distributed the Trust’s 75%
interest in the Property and the Partnership, constitute legal conclusions.
Coffeehouse objected to Flores’ Affidavit on these bases in the Trial Court,
but the Trial Court did not rule on those objections. CR2 357. Because an
objection that an affidavit states a legal conclusion is an objection based on
a substantive defect, the objection may be raised on appeal even if it was
33
never ruled on, or even raised, in the trial court. Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ). Because
the statements in Flores’ Affidavit relied on by the Saks Parties are legal
conclusions, they are improper summary judgment evidence and should be
disregarded. Additionally, the Assignments referred to by Flores in her
Affidavit were invalidated by the MSA, the Arbitration Award, and the
Probate Court Orders enforcing the Arbitration Award, by which Sandra,
Landen, and Merriman conveyed any interest they may have had in the
Property and the Partnership to the Trust.
Because the Saks Parties have presented no evidence creating a
genuine issue of material fact as to whether the Trust exists and owns an
interest in the Property and the Partnership, summary judgment on this
issue must be affirmed.
iv. There is no genuine issue of material fact that McFadin and
Landen own no interest in the Property or the Partnership.
Landen does not own any interest in the Property or the Partnership
because the Trust was not terminated, and she was deemed to have
conveyed any interest she had in the Property and the Partnership to the
Trust. CR1 281; Appendix, tab 6. McFadin owns no interest in the
Property or the Partnership because he purports to have obtained his
interest from Sandra, who never owned any interest in the Property, and
34
who also was deemed to have conveyed any interest she may have had in
the Property and Partnership back to the Trust. CR1 281; Appendix, tab 6.
Coffeehouse presented summary judgment evidence that pursuant to
the MSA, Sandra and Flores agreed to transfer and assign to the Trust all
of their right, title, and interest in and to the Property and the Partnership,
and the Probate Court approved the MSA. CR1 189. When the MSA was
arbitrated, the arbitrator found:
4) Pursuant to order of the court, Marcus Rogers is the
Interim Trustee of the Trust.
...
6) Sandra C. Saks, although settlor of the Trust, has no
current interest in the Trust.
...
21) ¶3.b. of the MSA represents the Parties’ agreement that
the properties and interests identified in that paragraph
were intended by the Parties to be assigned or conveyed
to the Trust. The properties so identified are Trust
property. ¶5 of the MSA provides the Parties would
cooperate with one another in the execution of the
necessary documents to effect the transfer of the
35
properties and interests identified in ¶3.b. to the Trust.
The documents attached hereto as Exhibits 1 – 10 are in
proper form and necessary to accomplish the transfer of
the properties to the Trust as contemplated in the MSA.
...
22) The refusal of Sandra C. Saks, Landen Saks, and/or any
other party who has failed to execute the necessary
documents to effect a conveyance of the transfer of the
title or interest of the properties listed in MSA ¶3.b. to the
Trust was not made in good faith or for just cause. Each
such party failing to cooperate shall be compelled to
cooperate in order to effect the transfer, purposes and
intents of the MSA.
CR1 201, 205-206; Appendix, tab 5. Because this Court has already
affirmed the judgment confirming the Arbitration Award, the Saks Parties
have already litigated and lost on this issue.
Moreover, the documents by which Landen and Sandra were
deemed to have conveyed any Property and Partnership interests they may
have had to the Trust, and which were incorporated into the Arbitration
Award as a judgment of the Probate Court, specifically state that the 1996
36
Assignment and 2011 Assignment are now “canceled or void and of no
further force or effect.” CR1 256; Appendix, tab 5. Because Sandra had
nothing to convey or assign to McFadin, the McFadin Assignment and the
McFadin Deed are void and ineffective.
The Saks Parties point to no competent summary judgment evidence
that would show that Landen or Sandra retained any interest in the
Property or the Partnership, or that Sandra had any interest to convey to
McFadin. The Saks Parties also fail to argue or offer any evidence that the
purported conveyance and assignment to McFadin were not invalidated by
the Probate Suit, the MSA, and the final determination in the Arbitration
Award. Because the Saks Parties have raised no genuine issue of material
fact on this issue, the summary judgment declaring that neither Landen nor
McFadin own any interest in the Property or the Partnership must be
affirmed.
ISSUE NO. 2(a): Did the Trial Court abuse its discretion by
awarding attorney’s fees to Coffeehouse
and the Trust?
Due to the Saks Parties’ absurd persistence in their claims against
the Trust and its properties, and their unceasing litigation in the face of
conclusive court rulings, it was necessary for Coffeehouse and the Trust to
request declaratory relief to invalidate the fraudulently filed instruments and
37
restore marketable title to the Property before partition of the Property or
winding-up of the Partnership could be accomplished. Coffeehouse asked
the Court to declare under the UDJA that Saks Broadway owns no interest
in the Property or the Partnership, that the Assignments and Deed
fraudulently filed by Sandra Saks are null and void, that Coffeehouse and
the Trust are the only two partners of the Partnership, that the Partnership
owns equitable title to the Property, and that Coffeehouse and the Trust
own 25% and 75% of the Property respectively. CR1 91.
The Saks Parties have fought Coffeehouse and the Trust every step
of the way, completely disregarding the Orders of the Probate Court, as
well as the agreement and absolute right of Coffeehouse and the Trust to
partition the Property and wind up the Partnership. As a result,
Coffeehouse and the Trust also sought to recover their reasonable and
necessary attorney’s fees under Section 37.009 of the UDJA. CR1 93;
Appendix, tab 1. The Trial Court granted Coffeehouse’s requested
declaratory relief in its Order Granting Partial Summary Judgment and
incorporated such relief into the final Judgment, which also awarded
attorney’s fees to Coffeehouse and the Trust. CR2 369, 437; Appendix,
tabs 8 and 9.
Section 37.009 of the UDJA provides:
38
In any proceeding under this chapter, the court may
award costs and reasonable and necessary
attorney’s fees as are equitable and just.
Appendix, tab 10. Attorney’s fees awarded pursuant to the UDJA are
reviewed under an abuse of discretion standard. Roberts v. Wilson, 394
S.W.3d 45, 55 (Tex. App.—El Paso 2012, no pet.); Florey v. Estate of
McConnell, 212 S.W.3d 439, 447 (Tex. App.—Austin 2006, pet. denied);
Wheeler v. Phillips, 03-10-00221-CV, 2011 WL 4011455, at *9 (Tex. App.—
Austin Sept. 7, 2011, pet. denied). Abuse of discretion occurs when a trial
court acts unreasonably or without reference to any guiding rules and
principles. Wheeler, 2011 WL 4011455, at *9.
The Saks Parties argue that because neither the Order Granting
Partial Summary Judgment nor the final Judgment expressly address the
requests for declaratory judgment, then the award of attorney’s fees under
the UDJA was improper. However, the Order Granting Partial Summary
Judgment and the final Judgment clearly granted declaratory relief, even if
they did not expressly refer to the UDJA or use the words “declaratory
judgment.” The final Judgment orders, adjudges, and decrees (1) that
Coffeehouse and the Trust own 25% and 75% undivided interests in the
Property, respectively; (2) that Coffeehouse and the Trust own 25% and
39
75% of the Partnership, respectively; (3) that the Partnership has equitable
title to the Property; (4) that none of the other parties in the Trial Court,
including the Saks Parties, own any interest in the Property or the
Partnership; (5) and that the Assignments and Deed filed by Sandra Saks
after the MSA was approved by the Probate Court and the Arbitration
Award was entered as a Judgment, are void and of no force and effect.
CR2 369, 437; Appendix, tabs 8 and 9.
The Saks Parties’ argument that the Judgment does not mention
“declaratory judgment,” is merely an attack on the form of the Judgment.
However, nothing in the record shows that the Saks Parties called this
alleged defect to the attention of the Trial Court. Because the Saks Parties
failed to object to the form of the Judgment or notify the Trial Court of the
claimed error, the Saks Parties have waived any complaint of error to the
form of the judgment. 46933, Inc. v. Z & B Enterprises, Inc., 899 S.W.2d
800, 808 (Tex. App.—Amarillo 1995, writ denied).
Furthermore, “under the liberal construction which must be given the
declaratory judgment act, no particular form is necessary for the declaration
of rights in a declaratory judgment action if, when construed together with
the pleadings and any findings, the rights of the parties can be determined
from the face of the judgment.” 46933, Inc., 899 S.W.2d at 808. Because
40
the Trial Court’s Judgment, when construed with the Coffeehouse and
Trust pleadings requesting declaratory relief, determines the rights of the
parties, the Judgment constitutes a declaration under the UDJA. See In
Interest of an Unborn Child, 153 S.W.3d 559, 561 (Tex. App.—Amarillo
1993, no writ.) (holding that even though the trial court’s order did not make
a declaration, determination of law, or expressly grant any relief, because
no particular form is prescribed for a declaration of rights in a declaratory
judgment action, the word “finds” was construed to constitute a declaration
based upon facts found from the evidence).
The Trial Court could have properly awarded attorney’s fees to
Coffeehouse and the Trust under the UDJA even if the requested
declaratory relief had not been granted. Pursuant to Section 37.009 of the
UDJA, “equitable and just” attorney’s fees and costs may be awarded “in
any proceeding under this chapter.” The question, then, is whether the
proceeding is a declaratory judgment action “under this chapter.” Zurita v.
SVH-1 Partners, Ltd., No. 03-10-00650-CV, 2011 WL 6118573, at *8 (Tex.
App.—Austin Dec. 8, 2011, pet. denied). Under Section 37.009, it is within
the trial court’s discretion to award attorney’s fees to the prevailing party,
the nonprevailing party, or neither. Feldman v. KPMG LLP, 438 S.W.3d
678, 685 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Zurita, 2011 WL
41
6118573 at *8. Moreover, the statute does not require a judgment on the
merits of the dispute as a prerequisite to a fee award. Feldman, 438
S.W.3d at 685; Zurita, 2011 WL 6118573 at *8. In an action under the
UDJA, it is within the trial court’s discretion to award attorney’s fees to any
party with pleadings requesting them, even if the party moving for
attorney’s fees failed to specify the statutory authority for such an award in
its motion. Roberts, 394 S.W.3d at 55; Purvis Oil Corp. v. Hillin, 890
S.W.2d 931, 939 (Tex. App.—El Paso 1994, no writ); Smith v. Reid, No.
04-13-00550-CV, 2014 WL 7339586, at *10 (Tex. App.—San Antonio Dec.
23, 2014, no pet.); Zurita, 2011 WL 6118573 at *8.
The Saks Parties contend that Coffeehouse and the Trust are not
entitled to recover fees because they “did not claim an independent cause
of action for declaratory judgment that was granted,” citing as support
Morton v. Timarron Owners Ass’n., Inc., No. 02-13-00409-CV, 2014 WL
2619189 (Tex. App.—Fort Worth June 12, 2014, no pet.) Appellants’ Brief,
at 23. This case is distinguishable because the request for declaratory
judgment in Morton was a defensive counterclaim that mirrored the
plaintiff’s trademark infringement claim. The appellate court held that the
declaratory judgment counterclaim was not an independent claim for
affirmative relief because it did not seek relief beyond what the defendant
42
would be entitled to upon disposition of the plaintiff’s claims, and did not
survive the plaintiff’s nonsuit. Thus, the defendant was not entitled to
attorney’s fees under the UDJA. In this case, Coffeehouse and the Trust
did specifically plead for affirmative declaratory judgment relief as an
independent claim, separate and apart from the request for partition and
winding-up of the Partnership, which relief was granted by the Trial Court’s
Order Granting Partial Summary Judgment and incorporated into the final
Judgment. CR1 91, CR2 369, 437; Appendix, tabs 1, 8 and 9.
The Saks Parties also argue that Coffeehouse and the Trust
improperly pleaded the claims for partition and winding-up of the
partnership as a declaratory judgment action for the sole purpose of
recovering attorney’s fees. However, it was necessary for Appellees to
include a request for declaratory relief due to the Saks Parties’ vexatious
insistence that they own interests in the Property and the Partnership
despite the MSA, Arbitration Award, and Probate Court Orders providing
otherwise. CR1 186-194, 198-199, 205-206, 245-261, 278, 281; Appendix,
tabs 4, 5 and 6. Furthermore, in light of the Saks Parties’ unreasonable
and burdensome claims, the attorney’s fees awarded against them are
equitable and just.
43
The UDJA is intended to settle and provide relief from uncertainty and
insecurity with respect to rights, and is to be liberally construed and
administered. Roberts, 394 S.W.3d at 50. Pursuant to Section 37.004 of
the UDJA:
A person interested under a deed, will, written
contract, or other writings constituting a contract or
whose rights, status, or other legal relations are
affected by a statute, municipal ordinance, contract,
or franchise may have determined any question of
construction or validity arising under the instrument,
statute, ordinance, contract, or franchise and obtain
a declaration of rights, status or other legal relations
thereunder.
Appendix, tab 10. That is exactly what Coffeehouse and the Trust
requested and what the Court did—determine the validity of various
instruments, including purported Assignments of Partnership interests and
the McFadin Deed, in construction with the MSA, Arbitration Award, and
Probate Court orders, and declare the rights and status of the parties
thereunder. CR1 88-91.
44
The Saks Parties state that “a party may not artfully plead a title
dispute as a declaratory judgment action,” citing to I-10 Colony, Inc. v.
Chao Kuan Lee, 393 S.W.3d 467, 475 (Tex. App.—Houston [14th Dist.]
2012, pet denied). The Saks Parties, however, have artfully left out an
important part of the court’s holding in I-10 Colony, which actually provides:
Given the mandatory language in Property Code
section 22.001 (“[a] trespass to try title action is the
method of determining title”) (emphasis added), a
party may not artfully plead a title dispute as a
declaratory judgment action just to obtain attorney’s
fees when that claim should have been brought as a
trespass-to-try-title action.
A trespass-to-try-title lawsuit is an action to recover possession of land
withheld from an owner with a right to immediate possession, and imposes
unique pleading and proof requirements. I-10 Colony, 393 S.W.3d at 475;
Florey, 212 S.W.3d at 449. Not all actions impacting title and possessory
rights to property are necessarily trespass-to-try-title actions, and it is
doubtful “that the legislature intended for the trespass-to-try title statute to
displace or subsume every statutory or common law claim (e.g. suits to
45
rescind deeds) having such an impact.” Id. This case cannot be properly
called a trespass-to-try title action.
The Saks Parties also cite Barfield v. Holland, 844 S.W.2d 759, 771
(Tex. App.—Tyler 1992, writ denied), in support of their argument that it is
improper to use the UDJA to settle a land title dispute and seek an award
of attorney’s fees. However, in Barfield, there was no question of
“construction” or “validity” of the deeds by which the parties acquired their
title, and, therefore, it was not the proper subject matter for a declaratory
judgment. As in the I-10 Colony case, the court in Barfield found that the
suit was an action for trespass-to-try-title. Barfield, 844 S.W.2d at 771.
Also, in that case, there was no question of the ownership of a related
partnership and the validity of assignments of interests in such partnership,
as there is in this case.
This case is not a trespass-to-try-title action, and the Saks Parties do
not argue that it should have properly been brought as one. There is no
dispute between Coffeehouse and the Trust as to their ownership interests
in the Property or the Partnership, or who is entitled to possession. This is
a unique case in which it was necessary to invalidate instruments
fraudulently filed by Sandra, and confirm that the Trust still exists as an
owner of the Property and the Partnership, so that the Property could be
46
sold and the Partnership could be terminated. Furthermore, much of the
requested declaratory relief has to do with voiding the Assignments of
Partnership interests, and declaring the interests of its partners, which
would not be the subject of a trespass-to-try-title or any other real property
title claim. Therefore, the requests to invalidate the fraudulently filed
Assignments and the McFadin Deed, and confirm ownership in the
Property and the Partnership as a result of such determination, were
properly asserted under the UDJA. Therefore, the Trial Court was
statutorily authorized to award attorney’s fees to Coffeehouse and the
Trust.
The Saks Parties further claim that the Judgments in this case did not
include any substantial relief that was not recoverable under the causes of
action for partition of the Property and winding-up of the Partnership, but
the cases cited by the Saks Parties are not on point. In Aaron Rents, Inc.
V. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex. App.—Austin 2006,
no pet.), the plaintiff appealed a property tax decision of the Travis County
Appraisal Review Board to the district court. The appellate court held that
the plaintiff could not use the UDJA solely to obtain attorney’s fees
because, when a statute provides an avenue for attacking an agency order,
a declaratory judgment action will not lie to provide redundant remedies.
47
Id. at 669. Another case cited by the Saks Parties, Cytogenix, Inc. v.
Waldroff, 213 S.W.3d 479 (Tex. App.—Houston [1st Dist.] 2006, no pet.), is
a breach of contract case, in which both the plaintiff and defendant also
pleaded for declaratory judgment. The court held that the plaintiffs were
not entitled to attorney’s fees under the UDJA because they did not recover
any actual damages, and they could not use declaratory relief, identical to
the breach of contract claim, to recover attorney’s fees not otherwise
available. Id. at 489-90. Similarly, the court held that, upon reversal of the
judgment in favor of plaintiffs, the defendant was not entitled to attorney’s
fees under the UDJA because its claim for declaratory relief was nothing
more than a suit in avoidance of a contract, and it did not recover any
actual damages either. Id. at 490-91. These cases are not applicable or
determinative of this case.
It is clear that the declaratory relief requested by Coffeehouse and
the Trust is not redundant of the other claims. In addition to asking the
Trial Court to partition the Property by sale and to wind-up and terminate
the Partnership, Appellees also asked the Court to void the invalid
instruments and thus declare that Appellants and other parties owned no
interest in the Property or the Partnership. This relief is necessary and
related to, but not duplicative of, the request for partition of the Property
48
and winding-up and termination of the Partnership. The relief requested in
this case is similar to that requested in the Roberts and the Wheeler cases,
which were suits for partition and declaratory relief in which the appellate
courts affirmed attorney’s fees awarded under the UDJA.
In Roberts, the plaintiff sought partition of real and personal property
and a declaratory judgment relating to property inherited by her spouse,
asking the Court to construe the wills and partition deed by which her
spouse obtained his interest in the property in order to resolve the dispute
about her ownership of these interests. 394 S.W.3d at 49. On summary
judgment, the trial court granted the plaintiff’s request for declaratory relief
and ruled that she was entitled to attorney’s fees. Id. at 48-49. Partition of
the property was then ordered after a bench trial. Id. at 49. On appeal, the
defendants argued that the plaintiff failed to establish statutory authority for
a claim for attorney’s fees, but the court of appeals held that because the
plaintiff sought declaratory judgment pursuant to the UDJA, the trial court
was statutorily authorized to award reasonable and necessary attorney’s
fees, in its discretion. Id. at 55.
At issue in the Wheeler case was real property originally owned by
Ben Jones that was bequeathed to his four children, and then passed down
to the children’s heirs. 2011 WL 4011455 at *1. Through a series of
49
purchases, Wheeler obtained a large fractional undivided interest in the
property from the heirs of Ben Jones’ children. Id. Two of the Jones heirs
filed suit against Wheeler and other known and unknown Jones heirs for
partition of the property and to declare ownership interests, also seeking to
recover the attorney’s fees incurred for the common benefit of the joint
owners. Id. at *2. The appellate court found that the trial court did not
abuse its discretion in awarding attorney’s fees under the UDJA, because,
in addition to seeking a partition of the property, the plaintiffs also sought
declaratory judgment construing the Jones will and certain deeds and other
instruments, and determining the joint owners and their proportionate
interests. Id. at *9-10.
Coffeehouse appropriately pleaded for declaratory relief as
authorized under the UDJA, which relief was not redundant of its request
for partition of the Property and winding-up and termination of the
Partnership. The Trial Court was statutorily authorized to award attorney’s
fees to Coffeehouse and the Trust and did not abuse its discretion in doing
so.
ISSUE NO. 2(b): Did Appellants waive any issue regarding
failure to segregate attorney’s fees?
Appellants also argue that Coffeehouse and the Trust failed to
segregate their attorney’s fees under the UDJA from their other causes of
50
action and among the other parties, and therefore, the Trial Court’s award
was an abuse of discretion. However, Appellants have waived this issue.
In a bench trial, “if the trial court awards a fee based upon evidence of
services or time spent that should have been segregated but was not, the
opposing party must object to the trial court’s error by postjudgment
motion in order to urge that error on appeal.” O’Farrill Avila v. Gonzalez,
974 S.W.2d 237, 249 (Tex. App.—San Antonio 1998, pet. denied) (citing
Southern Concrete Co. v. Metrotec Fin. Inc., 775 S.W.2d 446, 450 (Tex.
App.—Dallas 1989, no writ)). Appellants filed no motion for new trial, nor
did they make any other postjudgment objection regarding failure to
segregate. Thus, they have failed to preserve this issue for appeal.
ISSUE NO. 2(c): Did the Trial Court err in awarding the full
amount of attorney’s fees requested by
Coffeehouse and the Trust?
The Trial Court did not err in awarding the full amount of fees
requested by Coffeehouse and the Trust because the attorneys’ discrete
legal services advanced both the declaratory judgment claim and the suit
for partition and winding-up of the Partnership. See Tony Gullo Motors I,
L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). The need to segregate
attorney’s fees is a question of law, subject to de novo review. Tony Gullo,
212 S.W.3d at 312; Approach Res. I, L.P. v. Clayton, 360 S.W.3d 632, 641
51
(Tex. App.—El Paso 2012, no pet.); Penhollow Custom Homes, LLC v.
Kim, 320 S.W.3d 366, 374 (Tex. App.—El Paso 2010, no pet.). In the Trial
Court, Coffeehouse’s designated expert on attorney’s fees, attorney Paul T.
Curl, testified as follows:
Q: And as I briefly addressed earlier, we did not
segregate the fees in this case. So in your opinion
would it have even been possible to segregate the
fees and expenses incurred by Broadway
Coffeehouse in pursuing its declaratory judgment
action to declare the invalid deeds and other
instruments void from the fees and expenses
incurred by Broadway Coffeehouse in seeking
partition of the property and termination of the
partnership?
A: I don’t think that would be reasonable or practical.
Q: And if you could explain why.
A: Sure. As a practical matter, virtually everything that
we did was geared toward the declaratory judgment
claim: Fixing ownership interest in the property and
the partnership, declaring the deeds void, the other
52
instruments. And that was really key to this whole
thing because the property could not be sold until
that was done. And that was a problem with both
these instruments clouding the title. So all --
everything -- virtually everything that we did
advanced the declaratory judgment claim. And I
don’t think it would be fair or reasonable to
segregate those out and those other -- the other
claims. Even if the other claims had not been there,
95 percent or more of the services would still have
been required.
Q: And against whom or against what defendants are
we seeking an award of attorneys’ fees today?
A: We are seeking an award of attorneys’ fees against
Sandra Saks, Lee Nick McFadin, III, and Landen
Saks because they are the parties who had fought
us tooth and nail on this case.
Q: Okay.
A: And again as to -- going back to your question
about segregation, I don’t think you could fairly
53
segregate as between the defendants because
really they are the defendants who have caused the
fight. The Trust was on our side from the word go.
Lauren Saks was on our side once we found out
that she had answered. She had filed a pro se
answer that initially was not served on us. Diana
Flores opposed us represented by Ron Shaw, but
when we got to the summary judgment hearing, she
folded her tent and approved the judgment. But
even she was only making the same arguments
basically adopting the same things that Sandra
Saks and Lee Nick McFadin were arguing. So there
is no question that the opponents were Saks,
McFadin, and Landen Saks. And even if the other
defendants had not been in the case, we would
have been doing virtually the same amount of work.
So I don’t think we can segregate them out to the
defendants.
Dec. RR 44:22-45:23.
54
The standard set forth in Tony Gullo does not require more precise
proof for attorney’s fees than for any other claims or expenses. 212
S.W.3d at 314. Based on Mr. Curl’s testimony, the Trial Court properly
determined that segregation of the requested attorney’s fees was not
necessary, and did not err in awarding the full amount of fees asked for at
trial. See Tony Gullo, 212 S.W.3d at 314 (explaining that, for the trial court
to determine that segregation of the contract and fraud claim fees was not
necessary, an opinion would have sufficed stating that 95 percent of the
attorney’s drafting time would have been necessary even if there had been
no fraud claim).
ISSUE NO. 3(a): Is Appellants’ Issue No. 3 regarding the
amount of the supersedeas bond moot
because it has been waived by Appellants,
and does this Court therefore lack
jurisdiction?
The Saks Parties endeavor to challenge the Trial Court’s Order
setting the amount of the supersedeas bond as an abuse of discretion.
CR2 457. Texas Rule of Appellate Procedure 24.4(a) prescribes the
method for appellate review of the trial court’s ruling on the amount of a
supersedeas bond. Appendix, tab 16. That review is “by motion in the
court of appeals with jurisdiction . . . over the appeal from the judgment in
55
the case.” Id. Any further appellate review after that motion is “by petition
for writ of mandamus in the Supreme Court.” Id.
The Saks Parties filed the motion prescribed by Rule 24.4(a) in this
Court on November 3, 2014. Appendix, tab 12. This Court denied that
motion in an Order signed on November 7, 2014. Appendix, tab 13. The
Saks Parties then filed a Motion to Reconsider En Banc Motion to Suspend
the Judgment and to Review Order Setting the Amount of Supersedeas
Bond on November 17, 2014. Appendix, tab 14. The Court denied that
motion in an Order signed on November 21, 2014. Appendix, tab 15. The
Saks Parties did not file a petition for writ of mandamus in the Supreme
Court of Texas as Rule 24.4(a) directs for further review from either of this
Court’s Orders.
The Saks Parties present no new arguments on this issue in their
Brief. They offer no ground or argument relating to supersedeas on which
the Court has not already ruled in its review of the supersedeas based on
the Saks Parties’ Motions under Rule 24.4. The Saks Parties do not argue
this Court erred when it denied their motions for review of the trial court’s
order setting the amount of security. Nor do The Saks Parties offer any
reason why this Court should reconsider its prior Orders. The Saks Parties’
Issue No. 3 challenges the Trial Court’s Order setting the amount of the
56
supersedeas bond, but what the Trial Court did no longer matters. This
Court has reviewed what the Trial Court did, and affirmed it.
Thus, the Saks Parties’ Issue No. 3 is moot because it has already
been reviewed and decided. An issue is moot when the controversy
ceases to exist or if the trial court’s actions cannot affect the parties’ rights.
Hoard Gainer Indus. Co., Ltd. v. Gollin, No. 01-03-01320-CV, 2005 WL
1646116, *1-2 (Tex. App.—Houston [1st Dist.] July 14, 2005, no pet.) So it
is here with the amount of the supersedeas bond. Because the issue is
moot, the Court lacks jurisdiction to decide this issue. Id. And because the
Saks Parties did not seek review in the Supreme Court of this Court’s
Orders or even ask this Court to reconsider its Orders on this issue, the
Saks Parties have waived any challenge to the amount for supersedeas.
Review of a supersedeas amount is under an abuse of discretion standard,
so it presents a question of law. Cf. In re Bass, 113 S.W.3d 735, 738 (Tex.
2003, orig. proc.) (abuse of discretion is error in application of legal
principles). This Court has already decided that question of law by denying
the Saks Parties’ Motions; therefore the law of the case doctrine and the
policies on which that doctrine is based prevent further challenge on this
issue as well. See Jones Gonzalez, P.C. v. Trinh, 340 S.W.3d 830, 836
(Tex. App.—San Antonio 2011, no pet.).
57
Furthermore, there is no grant of jurisdiction or prescription of a
method for review of orders on superseding judgments other than what is
provided in Rule 24.4(a). A motion under Rule 24.4(a) is “[t]he proper
method to seek review of a trial court’s determination” on suspending
enforcement of a judgment. Reagan v. NPOT Partners I, L.P., No. 06-08-
00071-CV, 2009 WL 763565, at *7 (Tex. App.—Texarkana March 25, 2009,
pet rev. dism’d). Thus, beyond mootness and waiver, Appellants’ Issue No.
3 also fails for lack of jurisdiction on this basis as well. Appellants cite
Appellate Rule of Procedure 25 as the basis for jurisdiction over their
appeal. Appellants’ Brief, at 2. Rule 25, however, is not a grant of
jurisdiction. It provides the method for commencing an appeal when the
Court has subject matter jurisdiction for an appeal. Most commonly, that
jurisdiction is under Section 51.012 of the Texas Civil Practice and
Remedies Code or Section 22.220 of the Texas Government Code. Those
statutes provide this Court jurisdiction over appeals from final judgments,
not orders on supersedeas bonds. Appellate courts generally lack
jurisdiction over appeals from post-judgment orders on enforcing a
judgment. Davis, 2015 WL 1004357 at *5. Following that rule, there is no
jurisdiction (under Section 51.012 or Section 22.220) for an appeal from an
order on suspending enforcement of a judgment.
58
Finally, this Court would not have jurisdiction over an appeal of the
Order setting the amount of the supersedeas bond because the Saks
Parties’ Notice of Appeal of this Order was untimely. Pursuant to Texas
Rule of Appellate Procedure 26.1, a notice of appeal must be filed within
thirty days after the judgment is signed. Appendix, tab 16. The Trial
Court’s Order on the supersedeas bond was signed on October 31, 2014.
CR 457; Appendix, tab 11. On February 20, 2015, 112 days later and on
the same day that they filed their brief, the Saks Parties filed a Supplement
to Notice of Appeal attempting to add the Order setting the amount of the
supersedeas bond to this appeal. Appendix, tab 17. Because the
Supplement to Notice of Appeal was filed almost four months after the
Order was signed, the appeal was not timely perfected, and the appeal of
the Order on the supersedeas bond must be dismissed. See In re A.L.B.,
56 S.W.3d 651 (Tex. App.—Waco 2001, no pet.).
ISSUE NO. 3(b): Did the Trial Court abuse its discretion in
setting the amount of the supersedeas
bond?
Finally, if the Court does consider (or reconsider) the substance of
the Saks Parties’ Issue No. 3, the Court should reject it. Review of the
amount of security for supersedeas is a test for abuse of discretion. In re
Estate of Hernandez, No. 04-14-00046-CV, 2014 WL 1713566, at *2 (Tex.
59
App.—San Antonio April 30, 2014, no pet.) The question for this Court is
not whether it would have reached the same conclusion as the Trial Court,
but whether the Trial Court acted without reference to any guiding rule or
principle or acted arbitrarily or unreasonable. Id.
The Trial Court did what Texas Rule of Appellate Procedure 24.2
prescribes. To the extent the Judgment involves an interest in real
property, Rule 24.2(a)(2)(A) applies, and directs the Trial Court to set an
amount of security of at least the value of the property’s rent or revenue.
CR2 459; Appendix, tab 16. The evidence of that monthly rent or revenue
was undisputed, and the trial court multiplied the rent by a reasonable
estimate of the time for disposing of Appellants’ inevitable appeals. Nov.
14 RR 11:4-19, 29:9-30:6, 50:8-51:20.
If the Judgment is not subject to Rule 24.2(a)(2)(A), then Rule
24.2(a)(2)(B) applies, and the Trial Court had discretion to set the
necessary security in an amount the Trial Court decided would be
necessary to protect Coffeehouse and the Trust from damage that an
appeal might cause. CR2 459; Nov. RR 21:9-25, 31:16, 32:9; Appendix,
tab 16. The Trial Court’s Order, supported by the evidence, does just that,
and the Trial Court did not abuse its discretion. In either event, the Saks
Parties’ Issue No. 3 should be overruled.
60
PRAYER
WHEREFORE, Appellees respectfully pray that the Trial Court’s
Judgment be affirmed and that the Order setting the amount of the
supersedeas bond be affirmed, or that appeal of that Order be dismissed
for lack of jurisdiction.
Respectfully Submitted,
CURL STAHL GEIS
A PROFESSIONAL CORPORATION
700 North St. Mary’s Street, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 226-2182
Telecopier: (210) 226-1691
BY: /s/ Brittany M. Weil
PAUL T. CURL
State Bar No. 05255200
ptcurl@csg-law.com
BRITTANY M. WEIL
State Bar No. 24051929
bmweil@csg-law.com
HERBERT S. HILL
State Bar No. 24087722
hshill@csg-law.com
ATTORNEYS FOR APPELLEE
BROADWAY COFFEEHOUSE, LLC
61
BINGHAM & LEA, PC
319 Maverick Street
San Antonio, Texas 78212
Telephone: (210) 224-2894
Telecopier: (210) 224-0141
BY: /s/ Royal Lea
ROYAL LEA
State Bar No. 12069680
royal@binghamandlea.com
ATTORNEY FOR APPELLEE MARCUS
ROGERS, AS TRUSTEE FOR THE
SAKS CHILDREN TRUST A/K/A
ATFL&L
62
CERTIFICATE OF COMPLIANCE
I certify that this Brief of Appellant contains 11,480 words (excluding
the sections excepted under Texas Rule of Appellate Procedure 9.4(i)(1)).
/s/ Brittany M. Weil
BRITTANY M. WEIL
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of April, 2015, a true and correct
copy of the above and foregoing document was sent via electronic service
through ProDoc and/or electronic mail, to:
Mr. Royal B. Lea, III
Bingham & Lea, P.C.
319 Maverick Street
San Antonio, Texas 78212
Telecopier: (210) 224-0141
Email: royal@binghamandlea.com
Mr. Philip M. Ross
1006 Holbrook Road
San Antonio, Texas 78218
Email: ross_law@hotmail.com
Ms. Lauren Saks Merriman
825 West Fulton Market, Unit 2
Chicago, Illinois 60607
Email: laurenmerriman@theblackbook-group.com
/s/ Brittany M. Weil
BRITTANY M. WEIL
63
APPENDIX
TAB 1
FILED
6/9/2014 2:23:28 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Maria Jackson
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TAB 2
320
TAB 3
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TAB 4
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TAB 5
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TAB 6
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TAB 7
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00518-CV
Sandra Garza DAVIS f/k/a Sandra C. Saks and Landen Saks,
Appellants
v.
Lauren
Lauren Saks MERRIMAN and Marcus P. Rogers, Interim Trustee,
Appellees
No. 04-13-00875-CV
Sandra SAKS, Margaret Landen Saks, and Lee Nick McFadin III
Appellants
v.
Lauren Saks a/k/a Gloria Lauren
Lauren SAKS a/k/a Gloria Lauren Nicole Saks and Marcus P. Rogers, Interim Trustee,
Appellees
From the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2011-PC-3466
Honorable Polly Jackson Spencer, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Jason Pulliam, Justice
Delivered and Filed: March 4, 2015
AFFIRMED IN PART, DISMISSED FOR LACK OF JURISDICTION IN PART
In these consolidated appeals, the appellants, Margaret Landen Saks and her mother,
Sandra C. Saks, challenge a judgment confirming an arbitration award and an order in aid of
04-13-00518-CV; 04-13-00875-CV
enforcement of judgment. The appellees, Lauren Saks and Marcus P. Rogers, urge us to affirm the
judgment confirming the arbitration award and to dismiss for lack of jurisdiction the appeal from
the order in aid of enforcement of judgment. We affirm the judgment confirming the arbitration
award, but dismiss for lack of jurisdiction the appeal from the order in aid of enforcement of
judgment.
BACKGROUND
These appeals arise from disputes concerning an inter vivos trust. In 1991, Sandra created
the trust for the benefit of her children, “Gloria Lauren Nicole Saks [‘Lauren’] and Margaret
Landen Saks Merriman [‘Landen’] and any other children later born or legally adopted . . . by
Sandra Saks [‘Sandra’].” In accordance with the terms of the trust agreement, Sandra’s sister,
Diane Flores, was appointed trustee. Lauren and Landen are the trust’s sole beneficiaries.
In August 2011, Lauren filed suit against Flores, the trustee, and Sandra, the settlor, in a
statutory probate court in Bexar County, Texas. The suit, which alleged breaches of fiduciary duty
and failures to comply with the trust agreement, sought an accounting and a constructive trust.
Lauren also sought Flores’s removal as trustee. On December 28, 2011, the probate court
appointed Marcus P. Rogers as interim trustee. Thereafter, Rogers submitted a report to the probate
court in which he concluded that any attempt by Flores to terminate the trust was ineffective.
On April 2, 2012, the parties entered into a mediated settlement agreement (“MSA”). The
MSA required the parties to resolve future disputes by mediation and arbitration. Specifically, the
MSA provided,
If one or more disputes arise with regard to the interpretation and/or performance
of this Agreement or any of its provisions, including the form of further documents
to be executed, the Parties agree to further mediation in an attempt to resolve same
with Thomas Smith, the Mediator[] who facilitated this settlement. In the event a
dispute arises between the Parties, it is hereby agreed that the dispute shall be
referred to Thomas Smith, the Mediator herein, for arbitration in accordance with
the applicable United States Arbitration and Mediation Rules of Arbitration. The
-2-
04-13-00518-CV; 04-13-00875-CV
arbitrator’s decision shall be final and legally binding and judgment may be entered
thereon . . . .
On May 8, 2012, the probate court signed an order approving the MSA and authorizing
Rogers, the interim trustee, to sign the MSA. However, the order approving the MSA did not
dismiss the claims in the underlying suit.
On August 21, 2012, Lauren filed a motion to compel arbitration, claiming that matters
regarding the interpretation and performance of the MSA remained unresolved. On September 4,
2012, the probate court, in accordance with the MSA, ordered Sandra, Lauren, Landen, and Rogers
to attend mediation and, if necessary, arbitration. The arbitration took place on October 18, 2012.
The arbitrator’s award ordered Sandra and Flores to execute certain documents conveying to the
trust all of their rights, title, and interest in certain property “no later than October 31, 2012.”
Sandra filed a motion asking the probate court to vacate the arbitrator’s award. The motion
was denied. Landen did not ask the probate court to vacate the arbitrator’s award.
On May 7, 2013, the probate court signed a final judgment confirming the arbitrator’s
award. The probate court incorporated the arbitration award into its judgment and entered it as a
judgment of the court. The arbitration award ordered Sandra and Landen to execute certain
conveyance documents. Sandra and Landen appealed the judgment confirming the arbitrator’s
award. This appeal was docketed in this court as appellate cause number 04-13-00518-CV.
On November 14, 2013, the trial court signed an order titled, “Order in Aid of Enforcement
of Judgment.” In this order, the probate court found that Sandra and Landen had failed to comply
with the arbitration award and the judgment confirming the arbitration award by failing to execute
the conveyance documents as previously ordered, and deemed the documents executed. Sandra
and Landen appealed this order. The latter appeal was docketed in this court as appellate cause
number 04-13-00875-CV.
-3-
04-13-00518-CV; 04-13-00875-CV
JUDGMENT CONFIRMING THE ARBITRATION AWARD
An arbitration award is given the same effect as a judgment of last resort and is conclusive
as to all matters of fact and law. CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002);
Stieren v. McBroom, 103 S.W.3d 602, 605 (Tex. App.—San Antonio 2003, pet. denied). We
review the trial court’s judgment confirming an arbitration award de novo. Corr. Products Co.,
Ltd. v. Gaiser Precast Constr., 394 S.W.3d 818, 823-24 (Tex. App.—El Paso 2013, no pet.); GJR
Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 262 (Tex. App.—San Antonio 2003,
pet. denied). In conducting this review, we indulge all reasonable presumptions in favor of
upholding the arbitration award. Gaiser Precast Constr., 394 S.W.3d at 824; GJR Mgmt. Holdings,
126 S.W.3d at 262. “Because Texas law favors arbitration, judicial review of an arbitration award
is extraordinarily narrow.” E. Texas Salt Water Disposal Co., Inc. v. Werline, 307 S.W.3d 267,
271 (Tex. 2010).
No one disputes that the arbitration agreement in this case is governed by the Texas
Arbitration Act (“TAA”). See TEX. CIV. PRAC. & REM. CODE ANN. 171.001-.098 (West 2011). The
TAA requires a trial court to confirm an arbitration award upon a party’s application unless a party
offers grounds for vacating, modifying, or correcting the award. Callahan & Assoc. v. Orangefield
Indep. Sch. Dist., 92 S.W.3d 841, 844 (Tex. 2002) (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 171.087 (West 2011)). When no grounds for vacating the award are presented, the trial court “on
application of a party, shall confirm the award.” TEX. CIV. PRAC. & REM. CODE § 171.087.
Bexar County Probate Courts Nos. 1 and 2 are statutory probate courts. See TEX. GOV’T
CODE ANN. § 25.0171(c) (West Supp. 2014). Statutory probate courts have jurisdiction over
actions by or against a trustee and actions involving inter vivos trusts. See TEX. ESTATES CODE
ANN. § 32.006 (West 2014). This jurisdiction is concurrent with the jurisdiction of the district
courts. See TEX. ESTATES CODE ANN. § 32.007 (West 2014). Statutory probate courts also have
-4-
04-13-00518-CV; 04-13-00875-CV
jurisdiction over other matters, such as probate proceedings. Stauffer v. Nicholson, 438 S.W.3d
205, 215 (Tex. App.—Dallas 2014, no pet.).
Jurisdictional Arguments
As a threshold matter, we note the arguments presented by Sandra and Landen are unrelated
to any grounds presented in Sandra’s motion to vacate the arbitration award. 1 Instead, Sandra and
Landen argue the probate court was deprived of subject matter jurisdiction both at the time it
compelled arbitration and at the time it rendered judgment confirming the arbitration award. 2 In
making these jurisdictional arguments, Sandra and Landen acknowledge that the probate court
acquired subject matter jurisdiction over Lauren’s suit. However, according to Sandra and Landen,
prior to compelling arbitration, the probate court lost subject matter jurisdiction either because (1)
the trust had terminated or (2) the probate court’s plenary power had expired. In response, Lauren
and Rogers argue the probate court did not lose subject matter jurisdiction prior to compelling
arbitration or prior to confirming the arbitration award.
We will address both jurisdictional theories presented by Sandra and Landen. Under their
first theory, that the probate court lost subject matter jurisdiction because of the termination of the
trust, Sandra and Landen contend that under the language of the trust agreement, Flores, as trustee,
1
Landen filed a motion for new trial but did not file a motion to vacate the arbitration award.
2
In appellate cause number 04-13-00518-CV, Sandra and Landen state their issues as follows:
1. Did the trial court’s plenary power end on June 9, 2012, which was 30 days after the M[ediated]
S[ettlement] A[greement] was approved on May 8, 2012?
2. Did the court lack jurisdiction to compel the parties to arbitration pursuant to an [o]rder dated September
5, 2012?
3. Was the arbitration award void because arbitration was commenced pursuant to a void court order rather
than pursuant to a petition for arbitration filed in accordance with the United States Arbitration and
Mediation Rules of Arbitration as provided in the Mediated Settlement Agreement?
4. Was the trial court’s [j]udgment signed on May 7, 2013, approving a void arbitration award also void?
-5-
04-13-00518-CV; 04-13-00875-CV
was authorized to terminate the trust and distribute the trust assets to the income beneficiaries.
They further contend that, on or about December 21, 2011, Flores terminated the trust in
accordance with the trust agreement, and the termination deprived the probate court of jurisdiction
to compel arbitration.
In response, Lauren and Rogers argue the trust was never terminated. This argument is
supported by the record. Both the MSA reached by the parties and the arbitration award are
premised on the notion that the trust was not terminated. Additionally, Lauren argues that, even if
the trust had been terminated, the probate court would not have been deprived of jurisdiction.
According to Lauren, the probate court’s jurisdiction was invoked when she filed the underlying
suit alleging claims for breach of fiduciary duty and failures to comply with the trust agreement.
Lauren contends that even if the trust had been terminated on December 21, 2011, her claims
would have survived the termination of the trust, and therefore, the probate court would have
retained subject matter jurisdiction. We find Lauren and Rogers’s arguments convincing. We
conclude that the probate court was not deprived of jurisdiction based on the argument that the
trust was terminated.
Under their second theory, Sandra and Landen argue that the order compelling arbitration
and the judgment confirming the arbitration award are void because they were signed after the
probate court’s plenary power expired. This argument is based on the theory that the order
approving the MSA constituted rendition of a final judgment and the probate court’s jurisdiction
ended thirty days after it signed the order approving the MSA.
Mere approval of a settlement agreement does not constitute rendition of judgment. S & A
Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995). And, as a general rule, “a judgment issued
without a conventional trial is final if and only if either it actually disposes of all claims and parties
then before the court, regardless of its language, or it states with unmistakable clarity that it is a
-6-
04-13-00518-CV; 04-13-00875-CV
final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). Courts
determine whether an order amounts to a final judgment from its language and from the record in
the case. Id. at 195.
Here, the order approving the MSA provided, in relevant part,
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the Court
approves the Mediated Settlement Agreement attached to the Motion to Approve
Settlement Agreement as Exhibit “A;” that Marcus P. Rogers, Interim Trustee of
the Saks Children Family Trust or ATFL&L, is authorized to sign the Mediated
Settlement Agreement attached to this Motion.
Thus, the order approving the MSA did not dispose of all claims and parties before the probate
court, nor did it state with unmistakable clarity that it was a final judgment. See Lehmann, 39
S.W.3d at 192-93. Additionally, nothing in the record indicates that the order approving the MSA
was a final judgment. Because the MSA was not a final judgment, the probate court’s plenary
power did not expire thirty days after the probate court signed the order.
The only case cited by Sandra and Landen that arguably supports their jurisdictional
arguments is Goodman v. Summit at West Rim, Ltd., 952 S.W.2d 930 (Tex. App.—Austin 1997,
no pet.). In Goodman, the executor of a decedent’s estate filed suit in the probate court to clear
title to property owned by the estate. Id. at 932. In response, the defendant brought third-party
claims against other entities. Id. Initially, the probate court exercised its ancillary jurisdiction over
the third-party claims. Id. However, once matters concerning the estate were settled, the probate
court dismissed all of the claims by and against the estate. Id. Thereafter, the third-party defendants
moved to dismiss the claims against them on the ground that, once the claims involving the estate
were settled, the probate court lacked subject matter jurisdiction to consider the ancillary claims.
Id. The probate court agreed and dismissed the ancillary claims from the probate court. Id. The
court of appeals upheld the dismissal, noting that the “probate court had discretion to resolve
ancillary claims against third parties only to the extent that such claims were necessary to resolve
-7-
04-13-00518-CV; 04-13-00875-CV
claims within its original jurisdiction. . . . The court’s discretion undoubtedly vanished with the
dismissal of the estate from the probate proceeding.” Id. at 934.
Sandra and Landen’s reliance on Goodman is misplaced. Goodman involved the probate
court’s ancillary jurisdiction over a claim related to a decedent’s estate. Id. at 933. However, unlike
Goodman, the present case was not a probate proceeding and it did not involve the exercise of
ancillary jurisdiction. See TEX. ESTATES CODE ANN. § 22.029 (West 2014) (defining probate
proceedings as proceedings or matters relating to a decedent’s estate). Instead, the present case
was an action against a trustee and it involved an inter vivos trust. See TEX. ESTATES CODE ANN.
§ 32.006; Nicholson, 438 S.W.3d at 214-15 (acknowledging that a statutory probate court has
jurisdiction not only over matters against a trustee or involving an inter vivos trust, but also over
probate proceedings). Thus, Goodman is inapplicable to the present case.
We conclude the probate court had subject matter jurisdiction at the time it compelled
arbitration and at the time it rendered judgment confirming the arbitration award. 3 We, therefore,
overrule Sandra and Landen’s arguments that the order compelling arbitration and the judgment
confirming the arbitration award were void.
Remaining arguments
Rule 38.1(i) of the Texas Rules of Appellate Procedure requires a brief to contain a “clear
and concise argument for the contentions made with appropriate citations to authorities and to the
record.” TEX. R. APP. P. 38.1(i). An appellate issue unsupported by argument or citation to the
record or by appropriate legal authority presents nothing for our review. Blankinship v. Brown,
399 S.W.3d 303, 307 (Tex. App.—Dallas 2013, pet. denied). “Failure to cite legal authority or to
3
We further note that the Texas Arbitration Act confers jurisdiction on trial courts to confirm arbitration awards at any
time. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.082(a) (West 2011) (“The filing with the clerk of the court of an
application for an order under this chapter, including a judgment or decree, invokes the jurisdiction of the court.”);
see also §§ 171.081; 171.087 (West 2011).
-8-
04-13-00518-CV; 04-13-00875-CV
provide substantive analysis of the legal issues presented results in waiver of the complaint.” In re
Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana 2010, no pet.). As the reviewing
appellate court, we have neither a duty nor a right to perform an independent review of the record
and applicable law to determine if there was error. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.
App.—El Paso 2007, no pet.).
In their briefs, Sandra and Landen attempt to raise several other issues concerning the order
compelling arbitration and the judgment confirming the arbitration award. However, the arguments
made in support of these issues are wholly unsupported by citation to appropriate legal authority.
We, therefore, conclude that Sandra and Landen’s remaining issues challenging the judgment
confirming the arbitration award present nothing for our review. See TEX. R. APP. P. 38.1(i).
ORDER IN AID OF ENFORCEMENT OF JUDGMENT
Next, Sandra and Landen challenge the probate court’s order in aid of enforcement of
judgment. 4 This order states that Sandra and Landen failed to execute certain conveyance
documents as ordered in the judgment confirming the arbitration award and deems these
documents executed “by operation of law.”
Generally, post-judgment orders made for the purpose of carrying into effect a prior
judgment are not subject to appeal because they are not final judgments. Wagner v. Warnasch, 295
S.W.2d 890, 893 (Tex. 1956); Walter v. Marathon Oil Corp., 422 S.W.3d 848, 855 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). A writ of execution and orders incident to such a writ are
generally not appealable. Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex. App.—San Antonio 2001,
no pet.). However, there are exceptions to this rule. A few types of post-judgment orders, such as
4
Lee Nick McFadin III also filed a notice of appeal in appellate cause number 04-13-00875-CV. Rogers has moved
to dismiss McFadin from this appeal because McFadin was not a party below. Because we conclude that we have no
jurisdiction over an appeal from the order in aid of enforcement of judgment, Rogers’s motion to dismiss McFadin is
denied as moot.
-9-
04-13-00518-CV; 04-13-00875-CV
those in the nature of a mandatory injunction, are appealable. Walter, 422 S.W.3d at 855; id.; see
Kennedy v. Hudnall, 249 S.W.3d 520, 523-24 (Tex. App.—Texarkana 2008, no pet.) (concluding
a particular turnover order was not in the nature of a mandatory injunction and therefore was not
appealable).
Here, Lauren argues that the general rule applies in this case, and therefore, the appeal from
the order in aid of enforcement of judgment must be dismissed. We agree that the order in aid of
enforcement of judgment is not an appealable order. It is not in the nature of a mandatory
injunction; it merely carries into effect the judgment confirming the arbitration award. Thus, it is
not the type of post-judgment order that is reviewable by appeal. The appeal from the order in aid
of enforcement of judgment is therefore dismissed for lack of jurisdiction. See Walter, 422 S.W.3d
at 855-56 (dismissing appeal for lack of jurisdiction when challenged order did not fall within the
limited class of appealable, post-judgment orders); Qualia, 37 S.W.3d at 129 (dismissing for lack
of jurisdiction appeal from an order that simply provided for enforcement of a judgment in
Mexico).
DAMAGES FOR FRIVOLOUS APPEAL
In a cross-issue, Rogers urges this court to impose sanctions against Sandra and Landen
for filing frivolous appeals. Rule 45 of the Texas Rules of Appellate Procedure allows an appellate
court, after a determination that an appeal is frivolous, to award to the prevailing party “just
damages.” TEX. R. APP. P. 45. Typically, appellate courts award the amount of attorney’s fees
incurred by the appellee as proven by testimony or affidavit. Walker v. Hardin, No. 04-03-00864-
CV, 2005 WL 899926, at *2 (Tex. App.—San Antonio April 20, 2005, no pet.); see Smith v.
Marshall B. Brown, P.C., 51 S.W.3d 376, 382 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)
(awarding $5,000.00 in appellate attorney’s fees which were proven by affidavit). Here, however,
Rogers has not provided an affidavit or other proof of his attorney’s fees and expenses involved in
- 10 -
04-13-00518-CV; 04-13-00875-CV
responding to these appeals. We, therefore, deny Rogers’s request for sanctions against Sandra
and Landen for filing frivolous appeals. See Walker, 2005 WL 899926, at *2 (declining to award
appellee attorney’s fees for a frivolous appeal in the absence of proof).
CONCLUSION
The judgment confirming the arbitration award is affirmed. The appeal from the order in
aid of enforcement of judgment is dismissed for lack of jurisdiction.
Karen Angelini, Justice
- 11 -
TAB 8
TAB 9
TAB 10
§ 37.004. Subject Matter of Relief, TX CIV PRAC & REM § 37.004
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code § 37.004
§ 37.004. Subject Matter of Relief
Effective: June 15, 2007
Currentness
(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or
other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question
of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of
rights, status, or other legal relations thereunder.
(b) A contract may be construed either before or after there has been a breach.
(c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under
this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between
adjoining properties.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2007, 80th Leg., ch. 305, § 1, eff. June 15, 2007.
Notes of Decisions (469)
V. T. C. A., Civil Practice & Remedies Code § 37.004, TX CIV PRAC & REM § 37.004
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.009. Costs, TX CIV PRAC & REM § 37.009
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code § 37.009
§ 37.009. Costs
Currentness
In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable
and just.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Notes of Decisions (690)
V. T. C. A., Civil Practice & Remedies Code § 37.009, TX CIV PRAC & REM § 37.009
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
TAB 11
TAB 12
ACCEPTED
04-14-00734-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/3/2014 4:26:18 PM
KEITH HOTTLE
CLERK
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TAB 13
Broadway Coffeehouse,
Fourth Court of Appeals
San Antonio, Texas
November 7, 2014
No. 04-14-00734-CV
Sandra SAKS, Lee Nick McFadin, III and Margaret Landen Saks,
Appellants
v.
BROADWAY COFFEEHOUSE, LLC,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-17001
Honorable Larry Noll, Judge Presiding
ORDER
the supersedeas bond ordered by the trial court is DENIED.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 7th day of November, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
TAB 14
ACCEPTED
04-14-00734-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/16/2014 10:10:01 PM
KEITH HOTTLE
CLERK
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TAB 15
Fourth Court of Appeals
San Antonio, Texas
November 21, 2014
No. 04-14-00734-CV
Sandra SAKS, Lee Nick McFadin, III and Margaret Landen Saks,
Appellants
v.
BROADWAY COFFEEHOUSE, LLC,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-17001
Honorable Antonia Arteaga, Judge Presiding
ORDER
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
The court has considered the appellants' motion to reconsider en banc motion to suspend
the judgment and to review order setting the amount of supersedeas bond, and the motion is
DENIED.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of November, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
TAB 16
24.2. Amount of Bond, Deposit or Security, TX R APP Rule 24.2
Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
Rule 24. Suspension of Enforcement of Judgment Pending Appeal in Civil Cases (Refs & Annos)
TX Rules App.Proc., Rule 24.2
24.2. Amount of Bond, Deposit or Security
Currentness
(a) Type of Judgment.
(1) For Recovery of Money. When the judgment is for money, the amount of the bond, deposit, or security must equal the
sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded
in the judgment. But the amount must not exceed the lesser of:
(A) 50 percent of the judgment debtor's current net worth; or
(B) 25 million dollars.
(2) For Recovery of Property. When the judgment is for the recovery of an interest in real or personal property, the trial court
will determine the type of security that the judgment debtor must post. The amount of that security must be at least:
(A) the value of the property interest's rent or revenue, if the property interest is real; or
(B) the value of the property interest on the date when the court rendered judgment, if the property interest is personal.
(3) Other Judgment. When the judgment is for something other than money or an interest in property, the trial court must
set the amount and type of security that the judgment debtor must post. The security must adequately protect the judgment
creditor against loss or damage that the appeal might cause. But the trial court may decline to permit the judgment to be
superseded if the judgment creditor posts security ordered by the trial court in an amount and type that will secure the judgment
debtor against any loss or damage caused by the relief granted the judgment creditor if an appellate court determines, on
final disposition, that that relief was improper.
(4) Conservatorship or Custody. When the judgment involves the conservatorship or custody of a minor or other person under
legal disability, enforcement of the judgment will not be suspended, with or without security, unless ordered by the trial
court. But upon a proper showing, the appellate court may suspend enforcement of the judgment with or without security.
(5) For a Governmental Entity. When a judgment in favor of a governmental entity in its governmental capacity is one in which
the entity has no pecuniary interest, the trial court must determine whether to suspend enforcement, with or without security,
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
24.2. Amount of Bond, Deposit or Security, TX R APP Rule 24.2
taking into account the harm that is likely to result to the judgment debtor if enforcement is not suspended, and the harm that
is likely to result to others if enforcement is suspended. The appellate court may review the trial court's determination and
suspend enforcement of the judgment, with or without security, or refuse to suspend the judgment. If security is required,
recovery is limited to the governmental entity's actual damages resulting from suspension of the judgment.
(b) Lesser Amount. The trial court must lower the amount of security required by (a) to an amount that will not cause the
judgment debtor substantial economic harm if, after notice to all parties and a hearing, the court finds that posting a bond,
deposit, or security in the amount required by (a) is likely to cause the judgment debtor substantial economic harm.
(c) Determination of Net Worth.
(1) Judgment Debtor's Affidavit Required; Contents; Prima Facie Evidence. A judgment debtor who provides a bond, deposit,
or security under (a)(1)(A) in an amount based on the debtor's net worth must simultaneously file with the trial court clerk
an affidavit that states the debtor's net worth and states complete, detailed information concerning the debtor's assets and
liabilities from which net worth can be ascertained. An affidavit that meets these requirements is prima facie evidence of the
debtor's net worth for the purpose of establishing the amount of the bond, deposit, or security required to suspend enforcement
of the judgment. A trial court clerk must receive and file a net-worth affidavit tendered for filing by a judgment debtor.
(2) Contest; Discovery. A judgment creditor may file a contest to the debtor's claimed net worth. The contest need not be
sworn. The creditor may conduct reasonable discovery concerning the judgment debtor's net worth.
(3) Hearing; Burden of Proof; Findings; Additional Security. The trial court must hear a judgment creditor's contest of the
judgment debtor's claimed net worth promptly after any discovery has been completed. The judgment debtor has the burden of
proving net worth. The trial court must issue an order that states the debtor's net worth and states with particularity the factual
basis for that determination. If the trial court orders additional or other security to supersede the judgment, the enforcement
of the judgment will be suspended for twenty days after the trial court's order. If the judgment debtor does not comply with
the order within that period, the judgment may be enforced against the judgment debtor.
(d) Injunction. The trial court may enjoin the judgment debtor from dissipating or transferring assets to avoid satisfaction of
the judgment, but the trial court may not make any order that interferes with the judgment debtor's use, transfer, conveyance,
or dissipation of assets in the normal course of business.
Credits
Eff. Sept. 1, 1997. Amended by Supreme Court Aug. 29, 2003 and Sept. 10, 2003, eff. Sept. 1, 2003; March 10, 2008, and Aug.
20, 2008, eff. Sept. 1, 2008. Approved by Court of Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.
Editors' Notes
NOTES AND COMMENTS
Comment to 2008 change: Subdivision 24.2(c) is amended to clarify the procedure in determining net worth. A
debtor's affidavit of net worth must be detailed, but the clerk must file what is tendered without determining whether
it complies with the rule. If the trial court orders that additional or other security be given, the debtor is afforded time
to comply. Subdivision 24.4(a) is revised to clarify that a party seeking relief from a supersedeas ruling should file a
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
24.2. Amount of Bond, Deposit or Security, TX R APP Rule 24.2
motion in the court of appeals that has or presumably will have jurisdiction of the appeal. After the court of appeals
has ruled, a party may seek review by filing a petition for writ of mandamus in the Supreme Court. See In re Smith /
In re Main Place Custom Homes, Inc., 192 S.W.3d 564, 568 (Tex. 2006) (per curiam).
Notes of Decisions (83)
Rules App. Proc., Rule 24.2, TX R APP Rule 24.2
Current with amendments received through 3/15/2015
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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
24.4. Appellate Review, TX R APP Rule 24.4
Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
Rule 24. Suspension of Enforcement of Judgment Pending Appeal in Civil Cases (Refs & Annos)
TX Rules App.Proc., Rule 24.4
24.4. Appellate Review
Currentness
(a) Motions; Review. A party may seek review of the trial court's ruling by motion filed in the court of appeals with jurisdiction
or potential jurisdiction over the appeal from the judgment in the case. A party may seek review of the court of appeals' ruling
on the motion by petition for writ of mandamus in the Supreme Court. The appellate court may review:
(1) the sufficiency or excessiveness of the amount of security, but when the judgment is for money, the appellate court must
not modify the amount of security to exceed the limits imposed by Rule 24.2(a)(1);
(2) the sureties on any bond;
(3) the type of security;
(4) the determination whether to permit suspension of enforcement; and
(5) the trial court's exercise of discretion under Rule 24.3(a).
(b) Grounds of Review. Review may be based both on conditions as they existed at the time the trial court signed an order, and
on changes in those conditions afterward.
(c) Temporary Orders. The appellate court may issue any temporary orders necessary to preserve the parties' rights.
(d) Action by Appellate Court. The motion must be heard at the earliest practicable time. The appellate court may require that the
amount of a bond, deposit, or other security be increased or decreased, and that another bond, deposit, or security be provided
and approved by the trial court clerk. The appellate court may require other changes in the trial court order. The appellate court
may remand to the trial court for entry of findings of fact or for the taking of evidence.
(e) Effect of Ruling. If the appellate court orders additional or other security to supersede the judgment, enforcement will be
suspended for 20 days after the appellate court's order. If the judgment debtor does not comply with the order within that period,
the judgment may be enforced. When any additional bond, deposit, or security has been filed, the trial court clerk must notify
the appellate court. The posting of additional security will not release the previously posted security or affect any alternative
security arrangements that the judgment debtor previously made unless specifically ordered by the appellate court.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
24.4. Appellate Review, TX R APP Rule 24.4
Credits
Eff. Sept. 1, 1997. Amended by Supreme Court Aug. 29, 2003, eff. Sept. 1, 2003; March 10, 2008, and Aug. 20, 2008, eff. Sept.
1, 2008. Approved by Court of Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.
Editors' Notes
NOTES AND COMMENTS
Comment to 2008 change: Subdivision 24.2(c) is amended to clarify the procedure in determining net worth. A
debtor's affidavit of net worth must be detailed, but the clerk must file what is tendered without determining whether
it complies with the rule. If the trial court orders that additional or other security be given, the debtor is afforded time
to comply. Subdivision 24.4(a) is revised to clarify that a party seeking relief from a supersedeas ruling should file a
motion in the court of appeals that has or presumably will have jurisdiction of the appeal. After the court of appeals
has ruled, a party may seek review by filing a petition for writ of mandamus in the Supreme Court. See In re Smith /
In re Main Place Custom Homes, Inc., 192 S.W.3d 564, 568 (Tex. 2006) (per curiam).
Notes of Decisions (15)
Rules App. Proc., Rule 24.4, TX R APP Rule 24.4
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
26.1. Civil Cases, TX R APP Rule 26.1
Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
Rule 26. Time to Perfect Appeal (Refs & Annos)
TX Rules App.Proc., Rule 26.1
26.1. Civil Cases
Currentness
The notice of appeal must be filed within 30 days after the judgment is signed, except as follows:
(a) the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files:
(1) a motion for new trial;
(2) a motion to modify the judgment;
(3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or
(4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil
Procedure or, if not required, could properly be considered by the appellate court;
(b) in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed;
(c) in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed; and
(d) if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated
above or 14 days after the first filed notice of appeal, whichever is later.
Credits
Eff. Sept. 1, 1997.
Notes of Decisions (432)
Rules App. Proc., Rule 26.1, TX R APP Rule 26.1
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
38.1. Appellant's Brief, TX R APP Rule 38.1
Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
Rule 38. Requisites of Briefs (Refs & Annos)
TX Rules App.Proc., Rule 38.1
38.1. Appellant's Brief
Currentness
The appellant's brief must, under appropriate headings and in the order here indicated, contain the following:
(a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court's judgment or order
appealed from, and the names and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8.
(b) Table of Contents. The brief must have a table of contents with references to the pages of the brief. The table of contents
must indicate the subject matter of each issue or point, or group of issues or points.
(c) Index of Authorities. The brief must have an index of authorities arranged alphabetically and indicating the pages of the
brief where the authorities are cited.
(d) Statement of the Case. The brief must state concisely the nature of the case (e.g., whether it is a suit for damages, on a note,
or involving a murder prosecution), the course of proceedings, and the trial court's disposition of the case. The statement should
be supported by record references, should seldom exceed one-half page, and should not discuss the facts.
(e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral argument should or should
not be permitted. Any such statement must not exceed one page and should address how the court's decisional process would,
or would not, be aided by oral argument. As required by Rule 39.7, any party requesting oral argument must note that request
on the front cover of the party's brief.
(f) Issues Presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point
will be treated as covering every subsidiary question that is fairly included.
(g) Statement of Facts. The brief must state concisely and without argument the facts pertinent to the issues or points presented.
In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be
supported by record references.
(h) Summary of the Argument. The brief must contain a succinct, clear, and accurate statement of the arguments made in the
body of the brief. This summary must not merely repeat the issues or points presented for review.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
38.1. Appellant's Brief, TX R APP Rule 38.1
(i) Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.
(j) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought.
(k) Appendix in Civil Cases.
(1) Necessary Contents. Unless voluminous or impracticable, the appendix must contain a copy of:
(A) the trial court's judgment or other appealable order from which relief is sought;
(B) the jury charge and verdict, if any, or the trial court's findings of fact and conclusions of law, if any; and
(C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which
the argument is based, and the text of any contract or other document that is central to the argument.
(2) Optional Contents. The appendix may contain any other item pertinent to the issues or points presented for review,
including copies or excerpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excerpts
from the reporter's record, and similar material. Items should not be included in the appendix to attempt to avoid the page
limits for the brief.
Credits
Eff. Sept. 1, 1997. Amended by Supreme Court March 10, 2008, and Aug. 20, 2008, eff. Sept. 1, 2008. Approved by Court of
Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.
Notes of Decisions (917)
Rules App. Proc., Rule 38.1, TX R APP Rule 38.1
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
TAB 17
FILED
2/20/2015 1:59:13 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Cecilia Barbosa
CAUSE NO. 2013-CI-17001
BROADWAY COFFEEHOUSE LLC § IN THE DISTRICT COURT
§
VS §
§
MARCUS ROGERS, AS TRUSTEE FOR § 73RD JUDICIAL DISTRICT
THE SAKS CHILDREN TRUST A/K/A §
ATTFL&L, A TEXAS TRUST; SAKS §
BROADWAY, LLC; SANDRA C. SAKS, §
A/K/A SANDRA GARZA DAVIS; DIANE §
M. FLORES, A/K/A DIANA GARZA §
FLORES; LAUREN SAKS MERRIMAN §
A/K/A GLORIA LAUREN NICOLE SAKS; §
MARGARET LANDEN SAKS, A/K/A §
LANDEN SAKS; AND LEE NICK §
MCFADIN, III § BEXAR COUNTY, TEXAS
SUPPLEMENT TO NOTICE OF APPEAL
TO THE HONORABLE JUDGE PRESIDING AND TO THE JUSTICES OF THE
FOURTH JUDICIAL DISTRICT COURT OF APPEALS:
COME NOW, SANDRA SAKS, LEE NICK MCFADIN, III and
MARGARET LANDEN SAKS, by and through undersigned counsel, and file their
Supplement to Notice of Appeal pursuant to TRAP Rule 25.1, and would show the
Court as follows:
1 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN
SAKS filed their Notice of Appeal on October 20, 2014.
2 Appellants identified the Judgment dated October 20, 2014 as the Order
appealed from.
1
3 Appellants desire to add the Order granting partial summary judgment,
dated August 25, 2014, which was incorporated into the Judgment, as well as the
Order, dated October 31, 2014, setting the amount of the supersedeas bond, to the
Orders appealed from.
4 The dates of the Orders appealed from are August 25, 2014, October 20,
2014, and October 31, 2014.
3 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN
SAKS desire to appeal.
4 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN
SAKS desire to appeal to the Fourth Court of Appeals, San Antonio, Texas.
5 SANDRA SAKS, LEE NICK MCFADIN, III and MARGARET LANDEN
SAKS are the parties filing this appeal.
6 This Notice of Appeal is being served on all parties to the court's Orders.
WHEREFORE, SANDRA SAKS, LEE NICK MCFADIN, III and
MARGARET LANDEN SAKS hereby file this supplement to their notice of
appeal. They also claim such further relief to which they may be justly entitled.
2
Respectfully submitted,
Philip M. Ross, SBN 17304200
1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
By: /s/ Philip M. Ross
Philip M. Ross
Attorney for SANDRA SAKS,
LEE NICK MCFADIN, III and
MARGARET LANDEN SAKS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been e-filed and served on February 20, 2015 by email pursuant to agreement to
Paul T. Curl and Royal B. Lea, III.
/s/ Philip M. Ross
Philip M. Ross
3
TAB 18
TAB 19
§ 11.057. Supplemental Provisions for Domestic General..., TX BUS ORG § 11.057
Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 1. General Provisions (Refs & Annos)
Chapter 11. Winding up and Termination of Domestic Entity
Subchapter B. Winding up of Domestic Entity
V.T.C.A., Business Organizations Code § 11.057
§ 11.057. Supplemental Provisions for Domestic General Partnership
Effective: September 1, 2011
Currentness
(a) Unless otherwise provided by the partnership agreement, a voluntary decision to wind up a domestic general partnership,
other than a partnership described by Subsection (b), requires the express will of a majority-in-interest of the partners who have
not assigned their interests. A voluntary decision to wind up a partnership under this subsection may be revoked in accordance
with Sections 11.151 and 152.709(e).
(b) Unless otherwise provided by the partnership agreement, a voluntary decision to wind up a domestic general partnership
that has a period of duration or is for a particular undertaking, or in which the partnership agreement provides for the winding
up of the partnership on occurrence of a specified event, requires the express will of all of the partners. A voluntary decision to
wind up a partnership under this subsection may be revoked in accordance with Sections 11.151 and 152.709(d).
(c) An event requiring the winding up of a domestic general partnership under Section 11.051(4) includes the following:
(1) in a general partnership for a particular undertaking, the completion of the undertaking, unless otherwise provided by
the partnership agreement;
(2) an event that makes it illegal for all or substantially all of the partnership business to be continued, but a cure of illegality
before the 91st day after the date of notice to the general partnership of the event is effective retroactively to the date of the
event for purposes of this subsection; and
(3) the sale of all or substantially all of the property of the general partnership outside the ordinary course of business, unless
otherwise provided by the partnership agreement.
(d) In addition to the events specified by Subsection (c), unless otherwise provided by the partnership agreement, if a domestic
general partnership does not have a period of duration, is not for a particular undertaking, and is not required under its partnership
agreement to wind up the partnership on occurrence of a specified event, an event requiring winding up of the partnership under
Section 11.051(4) occurs on the 60th day after the date on which the partnership receives notice of a request for winding up the
partnership from a partner, other than a partner who has agreed not to withdraw, or a later date as specified by the request, unless
a majority-in-interest of the partners deny the request for winding up or agree to continue the partnership. The continuation of
the business by the other partners or by those who habitually acted in the business before the request, other than the partner
making the request, without any settlement or liquidation of the partnership business, is prima facie evidence of an agreement
to continue the partnership under this subsection.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 11.057. Supplemental Provisions for Domestic General..., TX BUS ORG § 11.057
(e) An event requiring winding up specified in Subsection (c)(1), (c)(3), or (d) may be canceled in accordance with Sections
11.152 and 152.709.
(f) “Majority-in-interest” means, with respect to all or a specified group of partners, partners who own more than 50 percent of
the current percentage or other interest in the profits of the partnership that is owned by all of the partners or by the partners
in the specified group, as appropriate.
Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. Amended by Acts 2007, 80th Leg., ch. 688, § 63, eff. Sept. 1, 2007; Acts
2011, 82nd Leg., ch. 139 (S.B. 748), § 18, eff. Sept. 1, 2011.
V. T. C. A., Business Organizations Code § 11.057, TX BUS ORG § 11.057
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 11.314. Involuntary Winding Up and Termination of..., TX BUS ORG § 11.314
Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 1. General Provisions (Refs & Annos)
Chapter 11. Winding up and Termination of Domestic Entity
Subchapter G. Judicial Winding up and Termination
V.T.C.A., Business Organizations Code § 11.314
§ 11.314. Involuntary Winding Up and Termination of Partnership or Limited Liability Company
Effective: September 1, 2009
Currentness
A district court in the county in which the registered office or principal place of business in this state of a domestic partnership
or limited liability company is located has jurisdiction to order the winding up and termination of the domestic partnership or
limited liability company on application by:
(1) a partner in the partnership if the court determines that:
(A) the economic purpose of the partnership is likely to be unreasonably frustrated; or
(B) another partner has engaged in conduct relating to the partnership's business that makes it not reasonably practicable
to carry on the business in partnership with that partner; or
(2) an owner of the partnership or limited liability company if the court determines that it is not reasonably practicable to
carry on the entity's business in conformity with its governing documents.
Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. Amended by Acts 2009, 81st Leg., ch. 84, § 25, eff. Sept. 1, 2009.
V. T. C. A., Business Organizations Code § 11.314, TX BUS ORG § 11.314
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1