No.01-09-00922-CV

IN THE

FIRST COURT OF APPEALS

at Houston, Texas

SHERBERT & CAMPBELL, P.c.,

Appellant,

v.

J. STEVEN MOSTYN, ET.AL.,

Appellees.

Appealed from the 215th District Court of

Harris County, Texas

APPELLANT'S BRIEF

Eric Fryar Texas Bar No. 07495770

Fryar Law Firm, P.c. 1001 Texas Ave., Suite 1400 Tel. 281-715-6396 Fax 281-715-6397 Email: efryar@fryarlawfirm.com

ATTORNEY FOR APPELLANT, SHERBERT & CAMPBELL, P.C.

APPELLANT REQUESTS ORAL ARGUMENT

Noo 01-09-00922-CV

SHERBERT & CAMPBELL, P.c., Appellant,

V. Jo STEVEN MOSTYN, ETo AL.,

Appellees.

IDENTITY OF PARTIES AND COUNSEL

APPELLANT Sherbert & Campbell, Poc.

Eric Fryar Texas Bar Number 07495770 Fryar Law Firm, P.c. 1001 Texas Aveo, Suite 1400 Houston, Texas 77002 Tel. 281-715-6396 Fax 281-715-6397'

APPELLEES J. Steven Mostyn

Kurt B. Arnold Texas Bar Number 24036150 Arnold & Itkin LLP 1401 McKinney Street, Suite 2550 Houston, Texas 77010 Tel. 713-222-3800 Fax 713-222-3850

Essex Insurance Company

Joseph M Heard Texas Bar No. 09337500 Heard & Medack, Poc. 9494 Southwest Freeway, Suite 700 Houston, Texas 77074 Tel. 713-772-6400 Fax 713-772-6495

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2 TABLE OF CONTENTS 3 INDEX OF AUTHORITIES 4 STATEMENT OF THE CASE 7 STATEMENT ON ORAL ARGUMENT 8 ISSUES PRESENTED FOR REVIEW 8 STATEMENT OF FACTS 9 SUMMARY OF THE ARGUMENT 14 ARGUMENT 15

I. STANDARD OF REVIEW 15 II. THE SHERBERT CAMPBELL & MOSTYN PARTNERSHIP REMAINED IN WINDING UP .15 III. APPELLANTS CLAIMS ARE NOT TIME-BARRED 17

A. Appellee Must Prove Limitations Conclusively 18 1. Four-Year Statute Applies 18 2. Discovery Rule Applies 19 3. Appellees' Burden ofProof.. 20

B. Fact Issues Regarding Notice Preclude Summary Judgment... 21 1. Appellee's Must Prove Actual Notice 21 2. No Constructive Notice of Public Records 23 3. Appellees Did Not Meet Their Burden 24

C. Limitations Is Tolled on Partnership Accounting 26 D. The Claim Against Essex Is Not Time-Barred 27

IV. SUMMARY JUDGMENT CANNOT BE BASED ON MOSTYN'S AFFIRMATIVE DEFENSES AND NO-EVIDENCE GROUNDS 28

A. Summary Judgment Could Not Be Based on Standing or Election ofRemedies 28 B. The Summary Judgment Record Satisfies the No Evidence Motions 30

1. Existence of the Contract 31 2. Proper Party 31 3. Performance of the Contract. 31 4. Breach of the Contract. 32 5. Fiduciary Relationship 32 6. Breach of Fiduciary Duties 32 7. Injury 32 8. Partnership Accounting 32

V. APPELLANT HAS A VALID CLAIM AGAINST ESSEX 33 A. Essex Owed Duties to Appellant.. 33

1. Duties Based on Essex's Notice ofAppellant's Contingent Fee Interest.. 33 2. Duties Deriving from Mostyn's Fiduciary Relationship 35

B. Essex Did Not Discharge Its Duties by Paying Mostyn 36 C. Essex Did Not Move for Summary Judgment on the Declaratory Judgment Claim 37

PRAyER 38 CERTIFICATE OF SERVICE 39 APPENDIX 40

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INDEX OF AUTHORITIES

Cases Bader v. Cox, 701 S.W.2d 677 (Tex. App.-Dallas 1985, writ ref'd n.r.e.) 16,26 Baxter v. Williams, 544 S.W.2d 192 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.) 17 Bonner v. Henderson, No. 05-99-01 582-CV, 2001 WL 301581, at *6 (Tex. App.--Dallas 2001, pet. denied) ........................................................................................................................................................................ 19 Boulle v. Boulle, 160 S.W.3d 167 (Tex. App.-Dallas 2005, pet. denied) 27 Bush v. Stone, 500 S.W.2d 885 (Tex. Civ. App.-Corpus Christi 1973, writ ref'd n.r.e.) 21, 22, 23 C.H. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143 (Tex. Civ. App.-Tyler 1965, writ refd n.r.e. ) 18, 28, 34, 35 Cadle Co. v. Wilson, 136 S.W.3d 345 (Tex. App.-Austin 2004, no pet.) 22 Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998) 22 Computer Associates Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996) 19,20 Courseview, Inc. v Phillips Petroleum Co., 312 S.W.2d 197 (Tex. 1957) 19,21,22,23 Dow Chemical Co. v. Benton, 357 S.W.2d 565 (Tex. 1962) 33 East Texas Bank & Trust Co. v. Mid-South Contractors, Inc., 451 S.W.2d 782 (Tex. Civ. App.-Tyler, 1970, no writ) 34, 37 Field Measurement Service, Inc. v.Ives, 609 S.W.2d 615 (Tex. Civ. App.-Corpus Christi 1980, writ ref'd n.r.e.) 23 Franklin County v. Tittle, 189 S.W.2d 773 (Tex. Civ. App.-Texarkana 1945, writ ref'd) .22 G. Property Mgt., Ltd. v. Multivest Financial Servo of Texas, Inc., 219 S.W.3d 37 (Tex. App.-San Antonio 2006, no pet) 21 Galveston, H. & S.A. Ry. Co. v. Ginther, 72 S.W. 166 (Tex. 1903) 33 Gaynier v. Ginsberg, 715 S.W.2d 749 (Tex. App.-Dallas 1986, writ ref'd n.r.e.) 24 Gibson v. Burkhart, 650 S.W.2d 185 (Tex. App.--Corpus Christi 1983, writ refd n.r.e.) 24 Harrison V. Bass Enterp. Prod. Co., 888 S.W.2d 532 (Tex. App.-Corpus Christi 1994, no pet.) .20 Hawthorne V. Guenther, 917 S.W.2d 924 (Tex. App.-Houston [1st Dist.] 1996, writ denied) 17, 18 Hendricks V. Thornton, 973 S.W.2d 348, 372 (Tex. App.--Beaumont 1998, pet. denied) 19, 20 Honeycutt V. Billingsley, 992 S.W.2d 570 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) 33, 34 Horton v. Robinson, 776 S.W.2d 260 (Tex. App.-EI Paso 1989, no writ) .18, 35 In re Fawcett, 55 S.W.3d 214 (Tex. App.-Eastland 2001, pet. denied) 19 Johnson V. Buck, 540 S.W.2d 393 (Tex App.- Corpus Christi 1976, writ ref'd n.r.e.) 22, 23 Kelly Associates, Ltd. V. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex. 1984) 16, 26 Kinzback Tool CO. V. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942) 18,35 Kirby Forest Industries, Inc. V. Dobbs, 743 S.W.2d 348 (Tex. App.-Beaumont 1987, writ denied) 29 Kline v. O'Quinn, 874 S.W.2d 776 (Tex.App.-Houston [14th Dist.] 1994, writ denied); 18 Landers V. State Farm Lloyds, 257 S.W.3d 740 (Tex.App. - Houston [I st Dist.] 2008, no pet.) 30 Lang V. Lee, 777 S.W.2d !58 (Tex. App.-Dallas 1989, no writ) 21, 23 Law Offices of Windle Turley P.c. V. Ghiasinejad, 109 S.W.3d 68 (Tex. App.-Fort Worth 2003, no pet.).33 Lewis V. Nolan, 105 S.W.3d 185 (Tex. App.--Houston [14th Dist. 2003, pet. denied) 24 LMB, Ltd. v. Moreno, 201 S.W.3d 686 (Tex. 2006) 30 M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617 (Tex. 1995) 16, 18,35 Mack Trucks, Inc. V. Tamez, 206 S.W.3d 572 (Tex. 2006) 30 Madeksho v. Abraham, Watkins, Nichols & Friend, 12 SW.3d 679 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) 37 Mathis V. Cactus Drilling Corp., 430 S.W.2d 78 (Tex. Civ. App.-Austin 1968, writ refd n.r.e.) 17, 18 McHaney v. Hackleman, 347 S.W.2d 822 (Tex. Civ. App.-San Antonio 1961, writ ref'd n.r.e.) !0 Mims v. Beall, 810 S.W.2d 876 (Tex. App.-Texarkana 1991, no writ) 18, 35 Mitchell, Gartner & Thompson v. Young, 135 S.W.2d 308 (Tex. Civ. App.--Fort Worth 1939, writ refd) . .33 Oliver v. Oliver, 843 S.W.2d 595 (Tex. App.-EI Paso 1992), rev'd 889 S.W.2d 271 (Tex. 1994) 22

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Pace v. McEwen, 574 S.W.2d 792 (Tex Civ. App.-El Paso 1978, writ ref'd n.r.e.) 22 Rhone-Poulenc, Inc. v. Steel, 997 S.W2d 217 (Tex. 1999) 20 Richard Gill Co. v. Jackson's Landing Owner's Ass'n, 758 S.W.2d 921 (Tex. App.-Corpus Christi 1988, writ denied) 21 Roach v. Schaefer, 214 S.W2d 128 (Tex. Civ. App.-Fort Worth 1948, no writ) 29 Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76 (Tex. 1989) 20 Rowe v. Rowe, 887 S.W2d 191 (Tex. App.-Fort Worth 1994, writ denied) 21 Slay v. Burnett Trust, 187 S.W2d 394 (Tex. 1945) 19 Sotelo v. Stewart, 281 S.W3d 76 (Tex. App.-El Paso 2008, pet. denied) 25,26 South Texas Lumber Co. v. Concrete Canst. Co., 139 S.W. 913 (Tex. Civ. App.-Galveston 1911, no writ) ........................................................................................................................................................................ 34 State Farm Mut. Auto. Ins. Co. v. Ollis, 754 S.W2d 781 (Tex. App.-El Paso 1988), rev'd 768 S.W2d 722 (Tex. 1989) 33 Tinney v. Team Bank, 819 S.W.2d 560 (Tex. App.-Fort Worth 1991, writ denied) 18, 35 Trinity River Auth. v. Badders, 453 S.W2d 304 (Tex. Civ. App.-Houston [14th Dist.] 1970, no writ) 33, 34 Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) 15 Valero Eastex Pipeline Co. v. Jarvis, 990 S.W.2d 852 (Tex. App.-Tyler 1999, writ denied) 29 Via Net v. TIG Ins. Co., 211 S.W3d 310 (Tex. 2006) 20 Wichita Royalty Co. v. City Nat'l Bank, 89 S.W2d 394 (Tex. 1935) 22 Willis v. Maverick, 760 S.W2d 642 (Tex. 1988) 19 Woodruffv. Bryant, 558 S.W2d 535 (Tex. Civ. App.-Corpus Christi 1977, writ refd n.r.e.) .l6 Zimmerman v. First Am. Title Ins. Co., 790 S.W.2d 690 (Tex. App.-Tyler 1990, writ ref'd n.r.e.) 22, 24

Statutes Tex. Civ. Prac. & Rem. Code §16.004(a)(5) 17 Tex. Civ. Prac. & Rem. Code §16.004(a)(3) 17 Tex. Civ. Prac. & Rem. Code §16.004(c) 25, 26, 27 Tex. Civ. Prac. Rem. Code §34.001 27 TUPA §22(d) 26 TRUPA art. 6132b-4.06(c) 26

Rules Tex. R. App. P. 39.1 7 Tex. R. App. P. 38.1 7 Tex. R. Civ. P. 93 28 Tex. R. Civ. P. 94 28 Tex. R. Civ .P. 166a 14 Tex. R. Civ. P. 166a(i) 29

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STATEMENT OF THE CASE

Nature ofthe case. This action arises out of the winding up of a law partnership

between appellee Mostyn and Bill and Adrienne Sherbert, appellant's predecessors in

interest. The dissolution agreement gave Mostyn responsibility for approximately 29

cases in which the Sherberts retained a contingent fee interest-interests the Sherberts

assigned to appellant, their professional corporation. (CR II, 351) Mostyn failed to pay

appellant on most of these cases. Appellee Essex was the insurance company that paid

the judgment in one significant case covered by the dissolution agreement, but Essex

failed to pay appellant's portion despite having been notified of appellant's interest.

Appellant filed suit against appellee Mostyn seeking a final settlement of partnership

accounts and for affirmative relief for breach of fiduciary duties, unjust enrichment,

imposition of a constructive trust, and breach of contract. (CR 203). Appellant filed suit

against appellee Essex Insurance Company ("Essex") for knowing participation in the

breach fiduciary duties and for a declaratory judgment and affirmative relief for Essex's

wrongful payment of appellant's portion of the proceeds from a judgment that was an

asset of the former partnership. (CR 203). Mostyn filed a general denial and asserted the

affirmative defenses of limitations, material breach of the agreement and fraudulent

inducement. (CR 60).1 Essex filed a general denial and various affirmative defenses.

(CR 369).

Course of proceedings. Mostyn and Essex each filed motions for summary

judgment. (CR 62, 159). The trial court granted summary judgment as to Essex on

Mostyn also filed a First Amended Answer (CR374) asserting additional affirmative defenses; however, this pleading was filed on September 25, 2009, which was seven days after the Summary Judgment Hearing and one day after the Summary Judgment Order in favor of Mostyn had already been signed.

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September 23, 2009 (CR 157), and as to Mostyn on September 24, 2009. (CR 377).

Appellant filed its Notice ofAppeal on October 21,2009. (CR 382).

STATEMENT ON ORAL ARGUMENT

The Court should grant oral argument for the following reasons:

a. Oral argument would give the Court a more complete

understanding of the facts presented in this appeal. See Tex. R. App. P. 39.1 (c). The facts

in the instant case are complex and may require additional explanation in order to fully

understand the chronology of events.

b. Oral argument would allow the Court to better analyze the

complicated legal issues presented in this appeal. See Tex. R. App. P. 39.1(c). The

court's understanding of the complex procedural posture of this case will likely be aided

by counsel's presence at oral argument.

c. Oral argument would significantly aid the Court in deciding this

case. See Tex. R. App. P. 38.1(e), 39.1(d). Oral argument would give a parties an

opportunity to make clear their position on the issues presented.

ISSUES PRESENTED FOR REVIEW

Issue l: The trial court should not have granted summary judgment in favor of Appellees because genuine issues of material fact existed as to whether Appellant discovered its claim within four years of filing suit.

Issue 2: The trial court should not have granted summary judgment in favor of Mostyn as to the partnership accounting claims because limitations is tolled until completion of winding up.

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Issue 3: The trial court should not have granted summary judgment in favor of Mostyn because he failed to plead the affirmative defenses on which he based his motion and because Mostyn failed to prove these defenses conclusively.

Issue 4: The trial court should not have granted summary judgment in favor of Mostyn because the no-evidence motions were not properly stated or were satisfied by the summary judgment record.

Issue 5: The trial court should not have granted summary judgment in favor of Essex because Essex had a duty to pay appellant.

Issue 6: The trial court should not have granted summary judgment in favor of Essex because its motion did not address Appellant's claim for declaratory judgment.

STATEMENT OF FACTS

Winding Up of Sherbert, Campbell & Mostyn Partnership

The Texas general partnership of Sherbert, Campbell & Mostyn was formed in

1997. (CR 181). It was a law firm, primarily representing plaintiffs in personal injury

cases. The partners voluntarily dissolved the firm effective December 3 I, 1998. (CR 288)

At the time of dissolution, there were three partners: Bill Sherbert, Adrienne Sherbert,

and Steve Mostyn. Essentially all of the partnership's assets were cases in which the

partnership held a contingent fee interest. The dissolution agreement split responsibility

for these cases and divided the contingent fee interests between Bill and Adrienne

Sherbert, on the one hand, and Mostyn, on the other. The partnership then entered a

lengthy period of winding up while the various cases were resolved. (CR 351, 288)

Later, Mostyn stopped communicating regarding the status of the cases for which

he was the handling attorney, and Adrienne Sherbert initiated Cause No. 2000-1502 I;

Adrienne Sherbert v. J Steve Mostyn; In the 215th Judicial District Court, Harris County,

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Texas, in March 2000 to enforce the Dissolution Agreement. (CR 182, 184, 351). In

response to this lawsuit, Mostyn voluntarily complied with his reporting and accounting

duties by producing a handwritten accounting of the former-partnership cases for which

he was the "handling attorney." (CR 352). As the record demonstrates, virtually all of the

matters were still marked as "pending" or "in litigation." (CR 306). Because the lawsuit

for an accounting was clearly premature at that stage, and Mr. Mostyn had complied with

his disclosure obligation, Adrienne Sherbert did not pursue the litigation and allowed the

lawsuit to be dismissed for want ofprosecution.2 (CR 182).

In May 2000, Adrienne and Bill Sherbert incorporated appellant Sherbert &

Campbell, P.c. (CR 343). Adrienne and Bill Sherbert made this new corporation the

successor-in-interest of their rights to the former partnership assets and arising out of the

dissolution, the winding-up, and the Dissolution Agreement. (CR 351).

On October 7,2003, appellant made a written request on Mr. Mostyn to complete

the winding up, account for all funds that might be in his possession belonging to

Sherbert & Campbell, P.c., and to finally terminate the partnership. (CR 322, 352). A

similar written request was made on December 5,2006. (CR 325,352).

The Arthur Mayo Case

The most significant partnership asset (by many orders of magnitude) is the fee

earned on the Arthur Mayo case. The matter of Arthur Mayo v. KoKo Motel, Inc., Cause

No. 97-560912, in the 237th Judicial District Court, Lubbock County, Texas, was a case

filed by the former partnership of Sherbert, Campbell & Mostyn prior to dissolution and

2 This is a without prejudice dismissal. McHaney v. Hackleman, 347 S.W.2d 822, 826 (Tex. Civ. App.­San Antonio 1961, writ ref'd n.r.e.).

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in which Sherbert, Campbell & Mostyn had a 40% contingent fee interest. (CR 351). In

the dissolution and winding up of Sherbert, Campbell & Mostyn, Mostyn was charged

with handling of the Mayo case, and Bill and Adrienne Sherbert (the predecessors in

interest to appellant) retained a 40% interest in the partnership's contingent fee and a

100% interest in the reimbursement of expenses advanced by the former partnership. (CR

287, 352) Mostyn was the handling attorney on the Arthur Mayo case. Essex insured the

defendants in that case.

After the dissolution, appellant had no knowledge or information regarding the

status or progress of the Mayo case, other than occasional copies of notices from the

Court prior to the trial or bits of information heard second-hand. (CR 351). Bill Sherbert

is not listed on the certificates of service Judgment or the Supersedeas Bond filed in the

Mayo case. (CR 97, 134). During and subsequent to trial, Mostyn did not disclose any

information regarding the case to Bill Sherbert, to Adrienne Sherbert or to any agent of

Sherbert & Campbell, P.c. (CR 351).

On October 3, 2000, Sherbert & Campbell, P.c. filed a Notice of Lien with the

Lubbock County District Clerk asserting an attorneys' lien of its 40% interest in the

contingent fee and on its interest in the advanced expenses. (CR 314, 352). A copy of

this document was delivered by fax to Marc Wojciechowski, who represented defendant

Koko Motel on behalf of its insurers. (CR 314). Final Judgment was rendered in May

2001. (CR 134). Bill Sherbert ultimately heard second-hand that the Mayo case had been

tried to verdict, that Mr. Mayo had been awarded a substantial judgment, and that the case

was on appeal. (CR 351).

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In April of 2003, appellant Sherbert & Campbell, P.c., through its counsel,

contacted all counsel involved in the Arthur Mayo appeal to again give notice of its fee

interest. (CR 352). A letter was sent by certified mail to all counsel of record in that

matter, including Mr. Mostyn and Mr. Wojciechowski, and to Kevin Dean Jewell (who

also represented Koko Motel on behalf of its insurers) giving notice of appellant's fee

interest.(CR 317). Appellant's counsel followed up this letter with telephone contact with

Mr. Wojciechowski, who stated that his clients were aware of Appellant's fee interest,

that the case was on appeal, but that his clients would notify Appellant's counsel prior to

payment of any settlement or judgment. (CR 352).

On December 4, 2003, Essex wrote a check in the amount of $2,775,386.18 to

The Mostyn Law Firm and Arthur Mayo. (CR 90). Approximately $444,062 of that

amount belonged to Plaintiff. However, neither appellant nor its counsel ever received

any notice or communications from anyone regarding the payment or anything else

regarding the Arthur Mayo case. (CR 352). A release of judgment was filed in Lubbock

County on December 24, 2003. (CR 92). Appellant had no actual knowledge of the

payment or of the filing and received no information that would have put it on notice of

these facts. (352-53).

At the beginning of December 2006, appellant requested its counsel to investigate

the status of the Arthur Mayo case, and it was learned through a Westlaw search that the

appeal had ended in Mayo's favor. (CR 325). At that point, appellant had no information

available to it as to whether the case had settled or whether the judgment had been

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cOllecleo. ~ LK,j:)L. ). AppellanL S l;uunsel LIlen l;alleu lVll. VVUJl;It:l,;UUWSKI WHU l,;UHIHIlIt:U

that the judgment had been paid but did not remember when. (CR 352).

On December 5, 2006, appellant made a written demand on Mostyn with respect

to the Mayo case and to any other cases for which he was responsible in the winding up.

(CR 325). On December 5, 2006, appellant also made a written demand on Mr.

Wojciechowski and Mr. Jewell. (CR 330). No response was received from anyone. (CR

353). On March 16, 2007, Plaintiff sent a follow-up letter to Mr. Jewell requesting to

know the identity of the insurance carrier who paid the judgment or settlement in the

matter. (CR 340). No response was received. (CR 353).

Proceedings in this Action

Appellant filed this action against Mostyn on February 4, 2008. (CR 2)

Appellant subsequently learned the identity of Essex and joined it as a party on August 8,

2008. (CR 124) Essex filed a motion for summary judgment on August 10, 2009. (CR

62) Mostyn filed a motion for summary judgment on August 28, 2009. (CR 159)

Appellant timely filed its Second Amended Original Petition, asserting an additional

cause of action against Essex, and it Responses to the motions for summary judgment on

September 11,2009. (CR 203,259) A summary judgment hearing was held in the 215 th

Judicial District Court on September 18, 2009. (CR 80) The trial court subsequently

granted summary judgment on all claims against Essex on September 23,2009 (CR 137)

and, by separate order, granted summary judgment on all claims against Mostyn on

September 24,2009. (CR 377)

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SUMMARY OF THE ARGUMENT

The principal issue addressed in the case below was limitations. The trial court

erred in granting summary judgment. Neither limitations nor any of the other grounds

raised will support a summary judgment. Appellee Mostyn owed appellant fiduciary

duties in the winding up of a partnership. Appellant's claims against Mostyn for breach

of fiduciary duties in the refusal to pay appellant its contingent fee interest in a large

judgment and appellant's claims against Appellee Essex for knowing participation in that

breach are governed by the four-year statute and the discovery rule. Appellant brought

suit four years and two months after Mostyn received the payment. The only evidence

offered to show that appellant should have known of the payment was a release of

judgment filed in Lubbock County. Because appellant is owed fiduciary duties, appellant

is not charged with constructive knowledge of this document. There is no evidence that

appellant received any actual notice, and appellant introduced evidence that it did not

receive notice.

Separately, appellant sued Mostyn for a partnership accounting, limitations for

which is tolled until the completion of winding up. There is no evidence that winding up

is complete. Appellant also sued Essex for declaratory and equitable relief based on

appellant's rights as a judgment creditor. Limitations for these claims is ten years.

Mostyn's numerous challenges to standing, claim of election of remedies, and

no-evidence motions will not support a summary judgment. None of the affirmative

defenses were properly pled, and the no-evidence motions were not properly stated, and

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appellant objected and specially excepted. Furthennore, these grounds are either legally

wrong or are satisfied by the record.

Essex's argument that it satisfied all its duties to appellant by paying Mostyn and

relying on Mostyn to pay appellant is based on an incorrect reading of the dissolution

agreement, is not supported by the record, and is not consistent with the case law. Essex

did not move for summary judgment on the declaratory judgment and equitable claims,

and the trial court's summary judgment on those claims is clearly erroneous.

ARGUMENT

I. STANDARD OF REVIEW

Appellate review of a summary judgment is de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment, an

appellate court takes as true all evidence favorable to the nonmovant, and it indulges

every reasonable inference and resolves any doubts in the nonmovant's favor. Id.

Summary judgment is only proper when a movant establishes that there is no genuine

issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.

R. Civ .P. 166a(c).

II. THE SHERBERT CAMPBELL & MOSTYN PARTNERSHIP REMAINED IN WINDING UP.

Mostyn and the Sherberts (the owners and assignors of their interest to

appellant) were partners in Sherbert Campbell & Mostyn. The partnership was dissolved

by agreement effective December 31, 1998. (CR 288) However, the partnership did not

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terminate on that date; rather, the responsibility for the contingent fee cases of the

partnership was split up and the partnership continued for purposes of winding up until

all of its cases were resolved and the assets were distributed to the former partners. As

will be seen below, the fact that the partnership was winding up rather than terminated is

important for two reasons: First, Mostyn continued to owe fiduciary duties to appellant

with respect to the contingent fee cases of the former partnership for which he was

responsible. Second, limitations on partnership accounting issues continued to be tolled

until winding up was complete.

Dissolution, winding-up, and termination are distinct phases of a partnership's

existence. Kelly Associates, Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex.

1984). Dissolution does not necessarily terminate the partnership business; even if the

business is to be discontinued, the partnership continues to exist, at least for the limited

purpose of winding up. Id. A partnership does not terminate upon dissolution but

continues until the winding up is completed. Bader v. Cox, 701 S.W.2d 677, 682 (Tex.

App.-Dallas 1985, writ ref'd nx.e.). It is only upon termination that the partnership

relationship ceases to exist. [d. at 596-97 (citing Woodru.ffv. Bryant, 558 S.W.2d 535, 539

(Tex. Civ. App.-Corpus Christi 1977, writ refd n.r.e.)).

Contingent fee interests are partnership assets of a law partnership. Bader v.

Cox, 701 S.W.2d at 682. Dissolution does not change the status of firm assets. Id.

Rather, former law partners have a duty wind up the partnership business in its contingent

fee cases with reasonable dispatch and to distribute the residue of the assets. Id. Partners

owe one another fiduciary duties in the conduct of the winding up of partnership's

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business, and are liable for a breach of that duty. MR. Champion, Inc. v. Mizell, 904

S.W.2d 6177, 618 (Tex. 1995); Hawthorne v. Guenther, 917 S.W.2d 924 (Tex. App.­

Houston [1 st Dist.] 1996, writ denied); Mathis v. Cactus Drilling Corp., 430 S.W.2d 78

(Tex. Civ. App.-Austin 1968, writ refd n.r.e.). Partners will be deemed to hold

partnership assets in a constructive trust for the benefit of their other partners or the

partnership. Baxter v. Williams, 544 S.W.2d 192, 195-96 (Tex. Civ. App.-Waco 1976,

writ ref'd n.r.e.).

There is no evidence in the summary judgment record that the winding up of the

partnership ever ceased. Pursuant to the Dissolution Agreement, Mostyn was charged

with the responsibility of winding up the partnership affairs as to approximately 29 cases.

(CR288). Until the cases are all resolved and the money is paid to the former partners, the

process of winding up does not cease. The only accounting Mostyn ever provided showed

that almost all these matters were still pending. (CR306) Mostyn continued to be actively

engaged in the process of winding up with respect to the Arthur Mayo case at least

through December 2003, when he received the partnership's contingent fee payment, and

thereafter has continued to hold that money.

III. APPELLANT'S CLAIMS ARE NOT TIME-BARRED

Issue 1: The trial court should not have granted summary judgment in favor of Appellees because genuine issues of material fact existed as to whether Appellant discovered its claim within four years of filing suit.

Issue 2: The trial court should not have granted summary judgment in favor of Mostyn as to the partnership accounting claims because limitations is tolled until completion of winding up.

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3

1. Four-Year Statute Applies.

Mostyn owed fiduciary duties in the conduct of the winding up of partnership

business and is liable for a breach of those duties. MR. Champion, Inc. v. Mizell, 904

S.W.2d 6177, 618 (Tex. 1995); Hawthorne v. Guenther, 917 S.W.2d 924 (Tex. App.­

Houston [1 sl Dist.] 1996, writ denied); Mathis v. Cactus Drilling Corp., 430 S.W.2d 78

(Tex. Civ. App.-Austin 1968, writ refd n.r.e.). With respect to the Arthur Mayo

judgment, Essex was on notice of appellant's direct interest and had a duty to pay

appellant. See eN. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143, 146 (Tex.

Civ. App.-Tyler 1965, writ refd n.r.e.). In paying Mostyn to the exclusion of appellant,

Essex knowing participated in Mostyn's breach of his fiduciary duties and is thus liable

for breach of fiduciary duty to the same extent as if it was a partner. Kinzback Tool Co. v.

Corbett-Wallace Corp., 160 S.W.2d 509, 574 (Tex. 1942). Third parties are jointly and

severally liable for the breach of fiduciary duties if they knowingly participate in the

breach. See Kline v. O'Quinn, 874 S.W.2d 776, 786 (Tex.App.-Houston [14th Dist.]

1994, writ denied); Tinney v. Team Bank, 819 S.W.2d 560, 563 (Tex. App.-Fort Worth

1991, writ denied); Mims v. Beall, 810 S.W.2d 876, 880-81 (Tex. App.-Texarkana 1991,

no writ); Horton v. Robinson, 776 S.W.2d 260, 266 (Tex. App.-El Paso 1989, no writ).

Claims for breach of fiduciary duties are governed by the four-year statute of limitations.

Tex. Civ. Prac. & Rem. Code §16.004(a)(5). Claims for breach of contract and debt are

also governed by the four-year statute. §16.004(a)(3).3

While no Texas court has ruled expressly on the limitations period for "knowing participation" in a breach of fiduciary duty, the language ofthe case law indicates that the Mostyn's partnership duties are extended to Essex and that both parties are jointly and severally Iiable for the same breach. Therefore, the limitations analysis should be the same for both claims. Essex did not argue otherwise in the trial

- 17 ­

2. Discovery Rule Applies.

Breach of fiduciary duties is subject to the discovery rule. Slay v. Burnett Trust,

187 S.W.2d 377,394 (Tex. 1945); see also In re Fawcett, 55 S.W.3d 214, 219 (Tex. App.

-Eastland 2001, pet. denied) ("The issue in a breach of fiduciary duty case is, thus,

when the plaintiff knew or should have known, with the exercise of reasonable diligence,

of the legal injury giving rise to the right to sue."). Actions between fiduciaries present a

special class of injuries. In Computer Associates Int'!, Inc. v. Altai, Inc., 918 S.W.2d 453,

456 (Tex. 1996), the Texas Supreme Court held that, because fiduciaries have a duty to

disclose upon which the beneficiary is entitled to rely, breach of fiduciary duty is

inherently undiscoverable as a matter of law. "Fiduciaries are presumed to possess

superior knowledge, meaning the injured party, the client, is presumed to possess less

information than the fiduciary. Consequently, in the fiduciary context, it may be said that

the nature of the injury is presumed to be inherently undiscoverable, although a person

owed a fiduciary duty has some responsibility to ascertain when an injury occurs. " !d.

(citing Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197,205

(Tex.1957». See also Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988) ("The special

relationship between an attorney and client further justifies imposition of the discovery

rule.... As a fiduciary, an attorney is obligated to render a full and fair disclosure of facts

material to the client's representation .... [B]reach of the duty to disclose is tantamount to

concealment."). The discovery rule also extends to Essex's joint and several liability for

court, and all appellate opinions that consider the issue at all have assumed that both the breach and the knowing participation in the breach would have the same limitations period. See Hendricks v. Thornton, 973 S.W.2d 348, 372 (Tex. App.--Beaumont 1998, pet. denied); Bonner v. Henderson, No. 05-99-0 I582-CV, 200 I WL 301581, at *6 (Tex. App.--Dallas 200 I, pet. denied).

- 18 ­

App.--Beaumont 1998, pet. denied).

While appellant's claims arising from breach of the Dissolution Agreement and

of Essex's duty to pay appellant might be characterized as contractual or quasi­

contractual, the fiduciary duties inherent in the contractual relationship makes the

discovery rule applicable to these claims as well. See Harrison v. Bass Enterp. Prod. Co.,

888 S.W.2d 532, 538 (Tex. App.-Corpus Christi 1994, no pet.). Essex's payment to

Mostyn, and Mostyn's receipt of the money were done secretly, without notice to

Plaintiff/Appellant, and was "inherently undiscoverable and the evidence of injury is

objectively verifiable." Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456

(Tex.1996). The Texas Supreme Court has noted that such breaches of contract would be

subject to the discovery rule. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex.

2006).

3. Appellees' Burden of Proof

Statute of limitations is an affirmative defense. Tex. R. Civ. P. 94. A defendant

moving for summary judgment on the affirmative defense of limitations has the burden to

conclusively establish that defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223

(Tex. 1999). When the plaintiff pleads the discovery rule as an exception to limitations,

the defendant must negate that exception as well. Id. Thus, the defendant must establish

that the limitations period expired before the suit was filed. See Rogers v. Ricane

Enterprises, Inc., 772 S.W.2d 76, 80-81 (Tex. 1989).

- 19 ­

B. Fact Issues Regarding Notice Preclude Summary Judgment.

1. Appellee's Must Prove Actual Notice.

The general statement of the discovery rule is that limitations begins to run when

the cause of action is discovered or, by the exercise of reasonable diligence should have

been discovered. Courseview, Inc. v Phillips Petroleum Co., 312 S.W.2d 197, 205 (Tex.

1957). The existence of a fiduciary relationship does not change the rule that diligence in

discovering the breach of fiduciary duty or fraud is required, but the existence of a

fiduciary relationship affects the application of the rule. G. Property Mgt., Ltd. v.

Multivest Financial Servo ofTexas, Inc., 219 S.W.3d 37, 48-49 (Tex. App.-San Antonio

2006, no pet.) (citing Courseview, Inc. v. Phillips Petroleum Co., 312 S.W.2d at 205).

When a fiduciary obligation of disclosure is involved, diligence on the part of a injured

party does not require as prompt or as searching an inquiry into the conduct of the other

as when the parties are strangers or are dealing at arm's length. Courseview, Inc. v.

Phillips Petroleum Co., 312 S.W.2d at 205; Rowe v. Rowe, 887 S.W.2d 191,202 (Tex.

App.-Fort Worth 1994, writ denied); Richard Gill Co. v. Jackson:S Landing Owner:S

Ass 'n, 758 S.W.2d 921, 924 (Tex. App.-Corpus Christi 1988, writ denied). A "different

and more lenient standard is applied to one who has been defrauded where a fiduciary

relationship exists between the parties." Bush v. Stone, 500 S.W.2d 885, 890 (Tex. Civ.

App.-Corpus Christi 1973, writ ref'd n.r.e.). The plaintiffs' duty of reasonable diligence

is balanced against the defendants' duty of full disclosure. Lang v. Lee, 777 S.W.2d 158,

164 (Tex. App.-Dallas 1989, no writ). "By entering into fiduciary relations, the parties

consent as a matter of law to have their conduct measured by the standards of the finer

loyalties exacted by courts of equity." Courseview, 312 S.W.2d at 205.

- 20­

"The mere fact that the defrauded party has the opportunity or power to

investigate the fraud, is not sufficient to charge him with notice of the fraud, so as to start

the running of the statute of limitations." Bush v. Stone, 500 S.W.2d at 890. Furthermore,

while parties are ordinarily charged with knowledge of evidence in the public record, this

is not the case in a fiduciary relationship. See Zimmerman v. First Am. Title Ins. Co., 790

S.W.2d 690, 699-700 (Tex. App.-Tyler 1990, writ ref'd n.r.e.).

The Plaintiff has no legal duty to investigate at least until it has actual

knowledge of facts sufficient to excite inquiry. Courseview, Inc. v. Phillips Petroleum

Co., 312 S.W.2d at 205; Wichita Royalty Co. v. City Nat'l Bank, 89 S.W.2d 394, 406 (Tex.

1935). Limitations does not start to run for breach of fiduciary duties until the level of

knowledge possessed by the plaintiff approaches actual notice. Oliver v. Oliver, 843

S.W.2d 595, 598 (Tex. App.-El Paso] 992), rev'd on other grounds, 889 S.W.2d 27]

(Tex. ]994); Pace v. McEwen, 574 S.W.2d 792, 797 (Tex Civ. App.-El Paso 1978, writ

ref'd n.r.e.); Johnson v. Buck, 540 S.W.2d 393,412-13 (Tex App.- Corpus Christi] 976,

writ ref'd n.r.e.); Bush v. Stone, 500 S.W.2d at 890; Franklin County v. Tittle, 189 S.W.2d

773, 775 (Tex. Civ. App.-Texarkana] 945, writ ref'd).

Summary judgment may be granted on limitations only when reasonable minds

could not differ on the date on which the cause of action accrued. Childs v. Haussecker,

974 S.W.2d 31, 44 (Tex. 1998). "When a plaintiff knew or should have known of an

injury is generally a question of fact." Cadle Co. v. Wilson, 136 S.W.3d 345, 352 (Tex.

App.-Austin 2004, no pet.). This is particularly the case in the context of a fiduciary

duty to make full disclosure. See Courseview, Inc. v Phillips Petroleum Co., 312 S.W.2d

- 21 ­

at 205; Lang v. Lee, 777 S.W.2d at 164; Field Measurement Service, Inc. v. Ives, 609

S.W.2d 615, 619-620 (Tex. Civ. App.-Corpus Christi 1980, writ ref'd n.r.e.); Bush v.

Stone, 500 S.W.2d at 890-91; Johnson v. Buck, 540 S.W.2d at 413.

2. No Constructive Notice of Public Records.

The sole evidence on which Mostyn and Essex base their argument in the trial

court that appellant discovered its claim more than four years before filing suit is the

appellees filed a release of judgment in the Arthur Mayo case with the County Clerk in

Lubbock County on December 24,2003. There is no evidence that appellant was notified

of the filing. There is no evidence that appellant ever learned of the filing. There is no

evidence of any facts or circumstances that would have caused appellant to suspect or

investigate the filing. Rather both Essex and Mostyn claimed that the mere fact that the

release of filed in the public records was sufficient to charge appellant with constructive

notice of the payment.

While public records are sometimes held to constitute constructive notice for

limitations purposes, this is not true when fiduciary duties are involved. The law does

not charge Appellant with constructive of the release of judgment merely because it was

filed in Lubbock County. See S. V. v. R.v., 933 S.W.2d I, 34 (Tex. 1996) (fiduciary

relationship excused failure to examine public records); Andretta v. West, 415 S.W.2d

638, 642 (Tex. 1967) (non-participating royalty owners were not charged with

constructive notice of public records on claim against owners of executive rights);

Courseview, Inc. v. Phil/ips Petroleum Co., 312 S.W.2d at 206; (because of fiduciary

relationship, plaintiff could not be charged with lack of diligence for failure to examine

- 22­

public records of land purchases); Lewis v. Nolan, 105 S.W.3d 185, 185 (Tex. App.-­

Houston [14th Dist. 2003, pet. denied) (client not charged with notice of entry of

judgment or of filing of abstract of judgment for purposes of limitations on claim against

his attorney); Zimmerman v. First Am. Title Ins. Co., 790 S.W.2d 690, 699-700 (Tex.

App.-Tyler 1990, writ ref'd n.r.e.) (fiduciary had no constructive notice of filing of

deed); Gaynier v. Ginsberg, 715 S.W.2d 749, 756 (Tex. App.-Dallas 1986, writ ref'd

n.r.e.) (public deed records were not adequate notice to joint venture partner); Gibson v.

Burkhart, 650 S.W.2d 185, 189 (Tex. App.--Corpus Christi 1983, writ refd n.r.e.)

(fiduciary no charged with knowledge of mineral lease in public records).

3. Appellees Did Not Meet Their Burden.

Under dissolution agreement, appellant's right to payment would arise when a

particular case for which Mostyn was responsible had been resolved and Mostyn had

received the money. (CR 287, 351) With respect to any particular matter, limitations for a

breach of fiduciary duty could not begin to run until appellant had receive actual notice

that Mostyn had received the money and did not intend to pay appellant. With respect to

the Arthur Mayo fee, which was paid in December 2003, appellant's claim is not time

barred unless the appellees proved conclusively that appellant discovered the payment

prior to February 4,2004 (2 months after the payment) for Mostyn or prior to August 21,

2004 (8 months after the payment) for Essex.

There is no evidence in the record of any actual notice to appellant prior to

December 5, 2006. On the contrary, Mostyn produced an interim accounting in 2000

which listed almost all matters under his control as "pending" or "in litigation," including

- 23 ­

specifically the Arthur Mayo case. (CR 305, 352). In October 2000, April 2003, and

October 2003, appellant sent written notice to Mostyn and/or attorneys employed by

Essex asserting its interests and received verbal confirmation from one of the Essex

lawyers that appellant would receive notice of any payment. (CR 314, 317, 322, 351-53).

Appellant received no further information until December 2006. (CR 352) Bill Sherbert

testified:

I never received any information or notice from any party that payment had been made in the Mayo case until early December 2006. I relied on Mr. Mostyn's obligation to inform me of this fact under the Dissolution Agreement and under his legal duties as a winding up partner. I relied on the legal duties of the defense counsel and the carrier not to payout a contingent fee funds in which we had an ownership interest after they had been notified of that interest. I relied on Mr. Wojciechowski's statement to Mr. Fryar that the defendants would notify us. As counsel of record, I should have been copied on pleadings and filings in the matter, but I was not. I had no actual knowledge, notice, or reason to believe that funds in which I had an interest had been paid out until the passage oftime and the failure of the defendants and Mr. Mostyn to respond to our demands gave me reason to suspect that this might have occurred. Prior to December 2006, I did not know and did not have any reasonable basis to believe that funds in which I had an interest had been paid out. (CR 353)

In Sotelo v. Stewart, 281 S.W.3d 76, 83 (Tex. App.-EI Paso 2008, pet. denied),

the critical issue in a legal malpractice action was when the plaintiff should have

discovered the existence of a judgment against her. The attorney introduced evidence that

notice of the judgment was sent by certified mail to the plaintiff's house. Id. Plaintiff's

affidavit stated that she never saw it. Id. The fact that the judgment was a public record

did not constitute constructive notice to the plaintiff; in fact, the court of appeals held that

a fact issue as to the plaintiffs actual knowledge precluded summary judgment on

- 24­

limitations. ld. In this case, appellees presented no evidence that that Plaintiff had any

actual notice. Summary judgement was improper on the basis of limitations.

C. Limitations Is Tolled on Partnership Accounting.

The partnership of Sherbert, Campbell & Mostyn is governed by the Texas

Revised Uniform Partnership Act because the partnership was formed after January 1,

1994. TRUPA art. 6132b-ll.03(a)(I). The Revised Act expressly provides that the

"accrual of and a time limitation on a right of action for a remedy under this section is

governed by other law." TRUPA art. 6132b-4.06(c). The applicable "other law" is

§16.004(c) of the Texas Civil Practice and Remedies Code, which provides that "the

cause of action [for settlement of partnership accounts] accrues on the day that the

dealings in which the parties were interested together cease." The limitations period is

four years. [d. No case law has interpreted the meaning of "the day that the dealings

in which the parties were interested together cease." However, common sense

would dictate that this day refers to the termination of the partnership, not to its

initial dissolution. Dissolution is the beginning of winding up-the winding up and

liquidation of partnership assets are certaining "dealings" in which the parties are

vitally "interested." See Kelly Associates, Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593,

596 (Tex. 1984); Bader v. Cox, 701 S.W.2d 677, 682 (Tex. App.-Dallas 1985, writ ref'd

n.r.e.). A cause of action for an accounting generally seeks to redress misconduct

committed in the process of winding up the partnership assets and business. It would

make no sense to force a former partner to sue for an accounting before the winding up

and distribution ofthe assets has been completed.

- 2S ­

However, Mostyn's theory in the trial court was precisely that the cause of

action for partnership accounting accrued on December 31, 1998, when the parties

first split up responsibility for the cases. Therefore, according to Mostyn, appellant

lost the right to seek judicial relief regarding the Arthur Mayo fee on of December

31, 2002,--while that Mayo appeal was still pending and fully a year before Mostyn

received any month and before appellant was due any money. If Mostyn were

correct, all a partner would have to do in order to keep all the partnership assets is

to delay the winding up beyond the four-year mark after the date of dissolution.

Mostyn's sole authority is the case of Boulle v. Boul/e, 160 S.W.3d 167 (Tex.

App.-Dallas 2005, pet. denied). While the Boulle court's holding is consistent on

the surface level with the absurd result sought by Mostyn, Boulle is not controlling.

First, the Dallas Court of Appeals makes it crystal clear that its holding is based on a

provision in the old Texas Uniform Partnership Act providing that a cause of action

for a partnership accounting accrues on the date of dissolution. 160 S.W.3d at 176

(relying on TUPA §22(d)). The Revised Act specifically changed this provision to

read that the "accrual of and a time limitation on a right of action for a remedy under

this section is governed by other law." TRUPA art. 6132b-4.06(c). Second, while

Boulle did utilize the 4-year limitations period in §16.004, the court did not address

the effect of the tolling provision in §16.004(c).

D. The Claim Against Essex Is Not Time-Barred.

Because of its contingent fee interest, appellant was a judgment creditor on the

Arthur Mayo judgment, and (as will be developed more fully below), Essex had a duty to

- 26­

pay appellant its portion of the judgment, which Essex violated by payment to Mostyn.

CH. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143, 146 (Tex. Civ. App.­

Tyler 1965, writ refd n.r.e.). Appellant sought a declaratory judgment against Essex that

appellant was not bound by the release of judgment and remains a judgment creditor.

(CR 203) Appellant is permitted to collect on a judgment for a period of 10 years after

rendition. Tex. Civ. Prac. Rem. Code §34.00 1. If payment was made to Mostyn on or

about December 4, 2003, appellant has until December 4, 2013 to collect in its interest in

the Arthur Mayo judgment. Consequently, the statute of limitations on this claim also

had not expired when appellant filed suit.

IV. SUMMARY JUDGMENT CANNOT BE BASED ON MOSTYN'S AFFIRMATIVE DEFENSES AND NO-EVIDENCE GROUNDS.

Issue 3: The trial court should not have granted summary judgment in favor of Mostyn because he failed to plead the affirmative defenses on which he based his motion and because Mostyn failed to prove these defenses conclusively.

Issue 4: The trial court should not have granted summary judgment in favor of Mostyn because the no-evidence motions were not properly stated or were satisfied by the summary judgment record.

Other than limitations, the remainder of Mostyn's summary judgment motion was

a mish-mash of overlapping defenses and no-evidence challenges. None of these bases

will support a summary judgment.

A. Summary Judgment Could Not Be Based on Standing or Election of Remedies.

Mostyn claimed in his motion for summary judgment that appellant had no

standing to sue because appellant (i.e. Sherbert & Campbell, P.e.) was never partners

- 27 ­

with Mostyn and because Adrienne Sherbert had elected an inconsistent remedy by filing

suit in 2000. (CR 165). Appellant objected and specially excepted to these affirmative

defenses under Tex. R. Civ. P. 93 and 94 because neither was in the Mostyn's answer that

was on file on the day of the summary judgment hearing or on the day when the summary

judgment was granted; and appellant further objected and specially excepted to the lack

of a verification to support the challenge to capacity. (CR 282-284).

In any event, Mostyn's evidence that he was not a partner with appellant was

irrelevant. Any species of property is assignable, especially everything which can be

called a debt, and the assignee may recover either in his own name or in that of his

assignor. Roach v. Schaefer, 214 S.W.2d 128, 130 (Tex. Civ. App.-Fort Worth 1948, no

writ); see also Valero Eastex Pipeline Co. v. Jarvis, 990 S.W.2d 852, 855 (Tex. App.­

Tyler 1999, writ denied) (easements, rights in condemnation action); Kirby Forest

Industries, Inc. v. Dobbs, 743 S.W.2d 348,354 (Tex. App.-Beaumont 1987, writ denied)

(contract rights and breach of contract causes of action). Sherbert & Campbell, P.c. was

incorporated after Adrienne Sherbert's lawsuit, was made successor in interest to Bill and

Adrienne Sherbert's rights under the Dissolution Agreement, and served notice of its

contingent fee interest in the Mayo case. Bill Sherbert's affidavit establishes that

appellant is the successor to the rights and interests that are the basis of its claims. (CR

351 ).

The summary judgment record also precludes Mostyn's argument that, by filing

suit in 2000 for breach of the Dissolution Agreement, Adrienne Sherbert made an

irrevocable election of remedies. (CR 166). While Adrienne Sherbert did make a claim

- 28 ­

for breach in 2000, that lawsuit did not claim either that the Agreement had been

repudiated or that it was terminated in any way. The declaratory relief sought assistance

from the Court in enforcing the future performance of the contract, not in terminating it.

(CR 184) Moreover, the 2000 lawsuit was dismissed without prejudice. "We think the

law is well settled that the mere institution of suit, which is not prosecuted to judgment,

or the application for a remedy, does not constitute an election of remedies, unless the

litigant has received some benefit or his opponent has suffered some loss or detriment."

McHaney v. Hackleman, 347 S.W.2d 822, 826 (Tex. Civ. App.-San Antonio 1961, writ

ref'd n.r.e.). Furthermore, in response to that lawsuit, Mostyn actually performed his duty

to account for his cases at that time (CR 305); and after the lawsuit, Plaintiff/Appellant

thereafter repeatedly gave notice of its intention that the Dissolution Agreement be

performed. (CR 317-349)

B. The Summary Judgment Record Satisfies the No Evidence Motions.

A no evidence motion for summary judgment must be granted if, after adequate

time for discovery, the moving party asserts there is no evidence of one or more specified

elements of a claim or defense on which the adverse party would have the burden of

proof at trial, and the respondent produces no summary judgment evidence raising a

genuine issue of material fact on these elements. Tex. R. Civ. P. 166a(i); LMB, Ltd. v.

Moreno, 20 I S.W.3d 686, 688 (Tex. 2006). When the movant files its motion in proper

form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that

raises an issue of material fact regarding the elements challenged by the motion. Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Landers v. State Farm Lloyds,

- 29­

257 S.W.3d 740, 744 (Tex.App. - Houston [1st DisL] 2008, no peL). Mostyn stated eight

different no-evidence grounds. Each of these were essentially throw-away one-liners and

not proper motions. (CR 172-74) Appellant objected and specially excepted to all of

Mostyn's no-evidence motions as not being in the proper form or as being satisfied by the

evidence. (CR 284-85)

1. Existence of the Contract.

Mostyn's claim that there is no evidence of a contract is satisfied by the

Dissolution AgreemenL(CR 288) Mostyn's real argument is based on standing, which is

not supported by the pleadings and is established in the record as noted above.

2. Proper Party.

Similarly, Mostyn's claim that there is no evidence appellant is a proper party is

repetition of the standing argument, which a matter on which Mostyn has the burden of

proof, is not supported by the pleadings, and is satisfied by the record as noted above.

3. Performance of the Contract.

Mostyn's claim that there is no evidence that appellant has performed was not

properly stated. There is no indication of what evidence is required to satisfy this burden.

Both the affidavits of Mostyn (CR 181) and Sherbert (CR 351) state that the Dissolution

Agreement was performed: the partnership dissolved; the cases were split; Mostyn was

given control over the Mayo case and the others. Appellant has not duty to prove that it

did not materially breach the agreement, as material breach would be an affirmative

defense, a matter on which Mostyn has the burden of proof.

- 30 ­

4. Breach of the Contract

Mostyn's claim that there is no evidence of breach or injury of the Dissolution

Agreement is disproven by Bill Sherbert's affidavit that, if nothing else, Mostyn secretly

obtained and kept the Arthur Mayo fee. (CR 351).

5. Fiduciary Relationship

Mostyn's claim of no fiduciary relationship is merely a restatement of the

standing argument, which is satisfied by the record as noted above and which was not

supported by the pleadings as noted above. There is ample (and undisputed) evidence in

the record that the parties were partners, that the partnership was dissolved and was in

dissolution, and that appellant succeeded to the partnership interests. (CR 288, 351)

6. Breach of Fiduciary Duties

Mostyn's claim that there is no evidence of a breach of fiduciary duty is

disproven by the evidence that he kept the Arthur Mayo fee. (CR 351)

7. Injury

Mostyn's claim that there is no evidence of injury from the breach is disproven

by the evidence that appellant is without the benefit of the Arthur Mayo fee. (CR 351)

8. Partnership Accounting

Finally, Mostyn's claim that there is no evidence of entitlement to accounting is

another rehash of the standing argument, which is disproven as noted above and which is

not supported by the pleadings as noted above.

- 31 ­

V. APPELLANT HAS A VALID CLAIM AGAINST ESSEX

Issue 5: The trial court should not have granted summary judgment in favor of Essex because its conduct did violate duties owed to Appellant.

Issue 6: The trial court should not have granted summary judgment in favor of Essex because its motion did not address Appellant's claim for declaratory judgment.

A. Essex Owed Duties to Appellant.

1. Duties Based on Essex's Notice ofAppellant's Contingent Fee Interest.

Texas courts have repeatedly recognized that a contingent fee contract constitutes

an assignment an interest in the lawsuit and creates a justiciable interest in the suit. Law

Offices o/Windle Turley PC v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.-Fort Worth

2003, no pet.); see also Dow Chemical Co. v. Benton, 357 S.W.2d 565, 568 (Tex. 1962);

Galveston, H. & S.A. Ry. Co. v. Ginther, 72 S.W. 166, 167 (Tex. 1903); Honeycutt v.

Billingsley, 992 S.W.2d 570, 584 (Tex. App.-Houston [1 st Dist.] 1999, pet. denied);

Trinity River Auth. v. Badders, 453 S.W.2d 304, 308 (Tex. Civ. App.-Houston [14tl1 Dist.]

1970, no writ). According to the Texas Supreme Court, a defendant that pays on a claim

in disregard to a known contingent fee interest in the claim is in the same position as

"that of any other person paying a debt to the original creditor, instead of the assignee,

whose rights were known." Galveston, H. & S.A. Ry. Co. v. Ginther, 72 S.W. at 167.

Debtors, with knowledge of the assignment, may not pay money to a third person so as to

deprive the assignee of his right. State Farm Mut. Auto. Ins. Co. v. Ollis, 754 S. W.2d 781,

783 (Tex. App.-EI Paso 1988), rev'd on other grounds, 768 S.W.2d 722 (Tex. 1989);

Mitchell, Gartner & Thompson v. Young, 135 S.W.2d 308, 311 (Tex. Civ. App.-Fort

- 32 ­

Worth 1939, writ refd); Cll Chapman v. Tyler Bank & Trust Company, 396 S.W.2d

143 , 146 (Tex. Civ. App.-Tyler 1965, writ refd n.r.e.). After notice of a valid

assignment, payment to the assignor or any person other than the assignee, is at the

debtor's peril and does not discharge him from liability to the assignee. East Texas Bank

& Trust Co. v. Mid-South Contractors, Inc., 451 S.W.2d 782, 784 (Tex. Civ. App.-Tyler,

1970, no writ); South Texas Lumber Co. v. Concrete Const. Co., 139 S.W. 913, 914-15

(Tex. Civ. App.-Galveston 1911, no writ).

In Trinity River Authority v. Badders, 453 S.W.2d at 306-07, a property owner

retained a lawyer on an anticipated condemnation action for a 30% contingent fee, and

the attorney sent a letter to the Trinity River Authority informing them of his

representation and fee interest. Thereafter, the property owner sent the lawyer a letter

terminating his services, and sometime later settled with the Trinity River Authority for

the acquisition of the property, representing to the TRA that the lawyer no longer

represented the property owner. Id. at 307. The attorney was not notified by either party

of the negotiations or settlement between the property owner and the TRA. Id. The

attorney sued the TRA and was awarded a fee equal to 30% of the settlement by the trial

court. Id. The Houston Court ofAppeals upheld this ruling, although it reversed on other

grounds. "When that suit was settled, without Badders' knowledge or consent, Badders

had the option to ratify that settlement and proceed against T.R.A. for his assigned

portion of the damages payable." Id. at 308. "If the defendant in the underlying suit has

notice of the attorney's interest, the defendant is liable to the attorney, even if he has

already paid the client." Honeycutt v. Billingsley, 992 S.W.2d at 584.

- 33 ­

2. Duties Deriving from Mostyn's Fiduciary Relationship.

Mostyn as a partner in control over partnership assets in winding up owed

fiduciary duties with respect to those assets. MR. Champion, Inc. v. Mizell, 904 S.W.2d

6177, 618 (Tex. 1995). In paying the judgment, Essex had a duty to pay Plaintiff its

interest. CB. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143, 146 (Tex. Civ.

App.-Tyler 1965, writ refd n.r.e.). The overwhelming case law in Texas sets forth only

two elements to establish Essex's liability participation in Mostyn's breach of fiduciary

duties: (l) knowledge of the fiduciary duty owed by Mostyn; (2) participation in the

breach. Kinzback Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 574 (Tex. 1942);

Tinney v. Team Bank, 819 S.W.2d 560, 563 (Tex. App.-Fort Worth 1991, writ denied);

Mims v. Beall, 810 S.W.2d 876, 880-81 (Tex. App.-Texarkana 1991, no writ); Horton v.

Robinson, 776 S.W.2d 260, 266 (Tex. App.-El Paso 1989, no writ). Essex did not argue

that it was ignorant of the fiduciary relationship. Essex did not submit any evidence

negating its knowledge of the fiduciary relationship, and the evidence in the record

certainly creates a fact issue as to its degree of knowledge. Essex was on notice that the

contingent fee was a partnership interest prior to dissolution, and was on notice that the

fonner partners were making separate claims of contingent fee interests after the

dissolution. Essex was clearly on notice that appellant had a direct interest in the fee and

expected to be paid directly. Therefore, in paying Mostyn to the exclusion of Plaintiff,

Essex knowing participated in Mostyn's breach of his fiduciary duties and is thus liable

for breach of fiduciary duty to the same extent as if it was a partner. Kinzback Tool Co. v.

Corbett-Wallace Corp., 160 S.W.2d 509,574 (Tex. 1942).

- 34­

B. Essex Did Not Discharge Its Duties by Paying Mostyn.

Essex argued in the trial court that it fully discharged its duties by paying Mostyn

and then expecting Mostyn to pay appellant. The record does not support that assertion.

Essex introduced no evidence that it believed that Mostyn was accepting payment on

appellant's behalf or that it was relying on Mostyn to pay appellant. On the contrary, the

record is replete with written notice to Essex that appellant had the right to be paid

separately and demanded to be paid separately. Essex argued that it is entitled to rely on

the terms of the Dissolution Agreement, which would require Mostyn to pay appellant its

interest. However, the Dissolution Agreement does not require payment to Mostyn; nor

does the record support the claim that Essex was aware of the terms of the Dissolution

Agreement or relied on its provisions in any way.

Certainly, nothing in the Dissolution Agreement explicitly allows Essex to rely on

Mostyn as the pay agent for appellant's contingent fee interest. On the contrary, the plain

language of the agreement states that "Bill and Adrienne Sherbert of Sherbert &

Campbell, LLP will receive 40% of the attorneys fees." Obviously, Mostyn's fiduciary

duties would require him to pay over any funds that he received, but the agreement itself

plainly permits and contemplates a direct payment to appellant. In its motion, Essex

relied on the "indemnification" clause which obligates Mostyn to "indemnify" appellant

for cases on which he is the handling attorney. (CR 72) This language requires Mostyn

is to protect appellant from any liability arising from his handling of the cases.

"Indemnification" does not mean that he is authorized to accept payment on behalf of

appellant, and Essex submitted no authority that the term "indemnification" could have

- 35 ­

such a meaning. In fact, the plain language of the contract is just the opposite, as Mostyn

is also required to indemnify appellant on the cases in which he has a 100% interest-in

other words, cases where Plaintiff will receive nothing. (CR 288)

Even if the Dissolution Agreement did charge Mostyn as the agent with

authority to receive payments on behalf of appellant, Essex did not establish any basis on

which it could rely on the agreement to absolve itself of liability. Essex submitted no

evidence that it believed that Mostyn was acting as appellant's agent. The undisputed

evidence is that Essex was repeatedly put on notice by appellant that it expected to be

paid directly, not through Mostyn. The law provides that payment to the assignor or any

person other than the assignee is at the debtor's peril and does not discharge him from

liability to the assignee. East Texas Bank & Trust Co. v. Mid-South Contractors, Inc., 451

S.W.2d 782, 784 (Tex. Civ. App.-Tyler, 1970, no writ).

Co Essex Did Not Move for Summary Judgment on the Declaratory Judgment Claim

As the Second Amended Petition clarifies, appellant seeks declaratory and

equitable relief against Essex for mispayment of the judgment proceeds. These claims

arise from Essex's duties to appellant as a judgment creditor and are independent of

Mostyn's fiduciary duties. As the Fourteenth Court of Appeals has held: "After

judgment, attorneys who earn a contingency fee are equitable owners (not mere

claimants) of their portion of the judgment. Due to this property interest, a defendant who

pays a judgment in full to the opposing party without accounting for the contingency-fee

claim will have to pay the fee portion twice." Madeksho v. Abraham, Watkins, Nichols &

Friend, ]2 SW.3d 679, 689 (Tex. App.-Houston [14 th Dist.] 2003, pet. denied). Essex's

- 36­

Motion for Summary Judgment did not address this claim. It was error for the trial court

to grant summary judgment on a claim for which no motion was made.

PRAYER

The summary judgment in favor of both Mostyn and Essex should be reversed.

There are factual issues regarding the discovery rule on the claims arising from breach of

fiduciary duties. Limitations on partnership accounting claims is tolled; and limitations

on the equitable and declaratory relief arising from the judgment would be ten years. The

other potential bases for the summary judgment were all either wrong as a matter of law,

were not supported by the summary judgment record, or were not properly pleaded.

Furthermore, Essex's motion did not even address the declaratory and equitable claims.

The trial court should not have granted summary judgment. Appellant respectfully

requests that this Honorable Court reverse the judgment of the trial court and remand the

case for completion of discovery and eventual trial on the merits.

Respectfully submitted,

- 37 ­

CERTIFICATE OF SERVICE

I hereby certifY that aU parties were served with a true and correct copy of this

briefvia hand-delivery on December 23,2009, as noted below:

Kurt B. Arnold Texas Bar Number 24036150 Arnold & Itkin LLP 1401 McKinney Street, Suite 2550 Houston, Texas 77010 Tel. 713-222-3800 Fax 713-222-3850 Counsel for Appellee J. Steven Mostyn

Joseph M Heard Texas Bar No. 09337500 Heard & Medack, P.c. 9494 Southwest Freeway, Suite 700 Houston, Texas 77074 Tel. 713-772-6400 Fax 713-772-6495 Counsel for Essex Insurance Company

Eric Fryar

- 38 ­

TAB A SUMMARY JUDGMENT ORDERS

TABB AFFIDAVIT OF BILL SHERBERT

TABC DISSOLUTION AGREEMENT

- 39­

TAB A

- 40 ­

TABB

- 41 ­

TABe

- 42 ­

Flied 09 August 10 P4:58 Loren Jackson • District Clerk Hams County ED101J015480865

CAUSE NO. 2008-07105 By: Sandra ",:,a1pert1-1 (j-;?

SHERBERT & CAMPBELL, P.C. § IN THE DISTRICT COURT OF (1) Ll Plaintiff § fT

§ VS. § HARRIS COUNTY, TEXAS

§ • J. STEVEN MOSTYN, ET AL, §

Defendants § 215th JUDICIAL DISTRICT

ORDER GRANTING SUMMARY JUDGMENT

On this day came to be considered Defendant Essex Insurance Company's

. Traditional and No-Evidence Motions for Summary Judgment Against Plaintiff Sherbert

& Campbell, P.C. and after considering the Motion, the Plaintiff's response, the

evidence before the Court, and arguments of counsel, the Court is of the opinion that

the motion is meritorious and should be granted.

It is, therefore, ORDERED, ADJUDGED and DECREED that Defendant Essex

Insurance Company's Traditional and No-Evidence Motions for Summary Judgment

Against Plaintiff Sherbert & Campbell. P.C. is GRANTED; that Plaintiff Sherbert &

Campbell, P.C., shall take nothing in this suit; and that all claims asserted by Sherbert &

Campbell, P.C. against Essex Insurance Company shall be dismissed with prejudice.

It is further ORDERED, ADJUDGED and DECREED that all taxable costs of

court shall be taxed by the party incurring the same. N 'H o This is meant to be a final judgment that disposes of all claims asserted by

Sherbert & Campbell, P.C. against Essex Insurance Company.

Signed this ~ay of ~ ,2009.

JutESIDING

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I, Loren Jackson, District Clerk of Harris County, Texas certifY that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date Witness my official hand and seal of office this October 3, 2009

Certified Document Number: 43412420 Total Pages: 2

1ljl LOREN JACKSON, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Cause No. 2008-07105

Sherbert & Campbell, P.C., § IN THE DISTRICT COURT OF §

Plaintiff § §

v. § HARRIS COUNTY, TEXAS §

J. Steven Mostyn, et al., § §

Defendants § 215th JUDICIAL DISTRICT

Order

The Court has considered J. Steven Mostyn's Motion for Summary Judgment and is

of the opinion that it should be GRANTED in all respects.

IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff's claims, in their

entirety, are dismissed as to J. Steven Mostyn, with prejudice.

SIGNED this -U day of ~ ,2009

SEP 242009

FILED loren Jackson District Clerk

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I, Loren Jackson, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date Witness my official hand and seal of office this October 3, 2009

Certified Document Number: 43427668 Total Pages:

~ LOREN JACKSON, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

or progress of the Mayo case after the dissolution. Mr. Mostyn did not disclose any information regarding the case to me, to Adrienne Sherbert or to any agent of Sherbert & Campbell, P.C. I heard that the case was ultimately tried to verdict, that Mr. Mayo was awarded a substantial judgment, and that the case was appealed.

5. "In early 2000, Adrienne Sherbert filed an action against Mr. Mostyn to compel him to account for the cases in his charge in the winding up. In response to that lawsuit, Mr. Mostyn provided the accounting attached hereto as Exhibit 2. This document shows that the Mayo case was "Pending Litigation."

6. "On October 3, 2000, Sherbert & Campbell, P.C. filed a Notice of Lien with the Lubbock County District Clerk asserting an attorneys' lien of its 40% interest in the contingent fee and on its interest in the advanced expenses. A copy of this document was delivered by fax to Marc Wojciechowski, who represented Koko Motel on behalf of its insurers. Exhibit 3 is a true and correct copy of that filing.

7. "In April of 2003, I instructed my counsel, Eric Fryar, to make contact with the counsel involved in the Arthur Mayo case to again give notice of our fee interest. Exhibit 4 is a true and correct copy of the notice letter sent by certified mail to all counsel of record in that matter, including Mr. Wojciechowski, and to Kevin Dean Jewell (who also represented Koko Motel on behalf of its insurers) and the receipt proving delivery. Mr. Fryar followed up this letter with telephone contact with Mr. Wojciechowski, who informed Mr. Fryar that the defendants were aware of Sherbert & Campbell, P.C.'s fee interest, that the case was on appeal, but that the defendants would notify Sherbert & Campbell, P.Co's counsel prior to payment of any settlement or judgment.

8. "On October 7, 2003, Mr. Fryar sent a letter to Mr. Mostyn requesting that Mr. Mostyn account for any of the cases in his charge in the winding up that had terminated and seeking a final accounting and termination of the partnership. Exhibit 5 is a true and correct copy of that letter.

9. "Neither I nor my counsel ever received any further notice or communications from anyone regarding the Arthur Mayo case. At the beginning of December 2006, I requested Mr. Fryar to investigate the status. Mr. Fryar learned from a Westlaw search that the appeal had ended in Mayo's favor. At this point, I had no information available to me as to whether the case had settled or whether the judgment had been collected. Mr. Fryar then called Mr. Wojciechowski who confirmed that the judgment had been paid but did not remember when.

10. "On my behalf, on December 5, 2006, Mr. Fryar made a written demand on Mr Mostyn with respect to the Mayo case and to any other cases for which he was responsible in the winding up. A true and correct copy is attached as Exhibit 6. No response was received. On my behalf, on December 5, 2006, Mr. Fryar made a written demand on Mr. Wojciechowski and Mr. Jewell. Exhibit 7 is a true and correct copy of the demand letter along with fax confirmations. No response was received.

2

11. "On March 16, 2007, Mr. Fryar sent a follow-up letter to Mr. Jewell requesting to know the identity of the insurance carrier who paid the judgment or settlement in the matter. A true and correct copy is attached hereto as Exhibit 8. No response was received.

12. "On February 4, 2008, we filed the Original Petition in this matter asserting a claim against the insurance company that paid the judgment as 'Doe, Inc.' because we had no idea or infonnation as to the identity of that company. In June 2008, we filed a First Amended Petition substituting Continental Casualty Co. for Doe, Inc. as the defendant insurance company because we had learned that this carrier issued the supersedeas bond, and we believed that Continental might be the carrier who paid the judgment. Only after service on Continental did we learn, through disclosure from Continental, that the carriers who had responsibility for the judgment were Lincoln and Essex. These defendants were named in a Supplemental Petition filed in August 2008. Lincoln has not existed for many years and has never been served or answered. Essex has admitted in discover that it is the carrier who paid the judgment.

13. "I never received any infonnation or notice from any party that payment had been made in the Mayo case until early December 2006. I relied on Mr. Mostyn's obligation to infonn me of this fact under the Dissolution Agreement and under his legal duties as a winding up partner. I relied on the legal duties of the defense counsel and the carrier not to payout a contingent fee funds in which we had an ownership interest after they had been notified of that interest. I relied on Mr. Wojciechowski's statement to Mr. Fryar that the defendants would notify us. As counsel of record, I should have been copied on pleadings and filings in the matter, but I was not. I had no actual knowledge, notice, or reason to believe that funds in which I had an interest had been paid out until the passage of time and the failure of the defendants and Mr. Mostyn to respond to our demands gave me reason to suspect that this might have occurred. Prior to December 2006, I did not know and did not have any reasonable basis to believe that funds in which I had an interest had been paid out."

/7

Sworn to and subscribed before me on ------'-;f-'-+-=-----..L-----­

:8*· ****~*~* * • *:· · }(f{'~'V Public in r the State ofNew Mexico : JOSEPH F. BISA

• HCffMff PUMJC-MI!W• . oe~ z My commission expires c?~&Itl• My Commllllon e.,. ~r:.pioJ~-=-500 .****." .

3

SHERBERT, CAMPBELL & MOSTYN ATTORNEYS AT LAW

LYRIC OrnCE CENTRE 440 LOUISJANAAT PRAIRIE/SUITE 1500

HOUSTON, TX. 71002·1635 (113) 236·81.. FAX ('113) 236·'251

liP.SIIEUI:JlT TOLL FREE 1-a1l·23lS-130a 10111llaOll CAMP.ELL (R.......)

I. sTEVE MOSTYN AGREEMENIAMONG .~"'7,"La. BILL AND APRIENNE SHERBERT AND J. STEVE MOSTYN

OUTLINING THE TERMS OFIHE DISSOLUTION OF SHERBERT. CAMPBELL AND MOSTYN

This agreement outlines the terms of the dissolution of SHERBERT~ CAMPBELL & MOSTYN (hereinafter "SCM").

L DMSION OF CASES

Bill and Adrienne Sherbert and J. Steve Mostyn agree that the division of the pending SCM cases as of December 31, 1998, are as follows: .

1. The list ofcaseS marked as Exhibit "A" to be taken by J. Steve Mostyn whereby Mr. Mostyn will retain ONE -HUNDRED (100%) percent interest and whereby Bill and Adrienne Sherbert, SCM, and Sherbert & Campbell, L.L.P. will n:tain no interest, and upon settlement ofthese cases, all the expenses incurred shall be reimbursed to

.' the source ofexpenses, including SCM andlor Mr. Mostyn's new finn;

2. . The list ofcases marked as Exhibit "B" will remain in place as defined in Addendwn "A" of this agreement. Upon settlement of these cases listed in Exhibit "Bn

, all expenses incurred shall be reimbursed to the source of expenses including SCM, SHERBERT& CAMPBELL L.L.P., and/or Mr. Mostyn's new firm, upon settlement of these cases;

3. The list ofcases marked as Exhibit ''C'" will be taken by J. Steve Mostyn with a fee split of 60/40 percentages whereby upon settlement, the handling attorney, Mr. Mostyn will retain 60010 of the attorneys fees and Bill and Adrienne Sherbert of Sherbert & Campbell, LL.P. will received 40% ofthe attorneys fees, except the case ofMichael Johnson in which upon rettlement, the attorneys fees split will be SO/SO between the entity ofSHERBERT& CAMPBELL, L.L.P., and 1.. Steve Mostyn and all expenses incurted shall be reimbwsed to the source ofexpenses, including SCM andlor Mr. Mostyn's new finn, upon settlement ofthese cases;

Page 1. of 5

..,.. 4. The list ofcases marked as Exhibit "1)" will be taken by Bill and Adrienne Sherbert

.ofSherbert & Campbell, LL.P. with a fee split of60/40 percentages whereby upon settlement, the handling attomeys, Bill and Adrienne Sherbert of Sherbert & Campbell, L.L.P., will retain 60% ofthe attorneys fees and 1. Steve Mostyn will receive 40% of the attorneys f~ and all expenses inCUl'I'ed shall be mmbursed to the source ofexpenses, including SCM, and/or SHERBERT & CAMPBEI,.4 LL.P., upon settlement ofthese cases; .

s. The list of cases marked as Exhibit "E" are cases referred to other fimls by SCM. These cases are to remain in place under the formula set out in the original partnership agreement (as ifthe partnership were not dissolved), and all expenses incurred shall be reimbursed to the source of expenses. which is SCM. upon settlement of these cases. The cases marked as ExluDit UF' are not assets of the partnership. but belong to Bill Sherbert, individually, as agreed (as ifthe partnership were not dissolved);

6. The list of cases marked as Exhibit "0" to be taken by Bill and Adrienne Sherbert and SHERBERT & CAMPBELL, L.L:P., whereby Bill and Adrienne Sherbert and SHERBERT & CAMPBELL, L.L.P., will retain ONE -HUNDRED (100%) percent interest and whereby J. Steve Mostyn nor SCM. will retain no interest, and upon settlement ofthese cases, all the expenses incurred shall be reimbursed to the source ofexpenses. including SCM and/or Bill and Adrienne Sherbert and SHERBERT & CAMPBELL, L.L.P.; and,

7. Those cases that are unknown. undecided or do not appear on Exhibits "A", "B", "e". "D", UEft and ..on shall be negotiated according to the terms ofthe partnership original agreement.

IT. INDEMNIFICAnON

Mutual Indemnification among the partners, Bill Sherbert. Adrienne Sherbert and J. Steve .' Mostyn and SCM and SHERBERT & CAMPBElL, L.L.P., will occur as follows:

1. J. Steve Mostyn indemnifies Bill and Adrienne Sherbert, SCM and SHERBERT & CAMPBELL, L.L.P. on all cases which he retains 1000.10 interest and an other cases in which he bas physical possession as listed in Exhibits ..N' through "))" where Bill and Adrienne Sherbert of SHERBERT & CAMPBELL. L.L.P. wiD retain 40% interest including Michael Johnson which is a SOl50 split; and.

Page20f 5

2. Bill and Adrienne Sherbert, SHERBERT & CAMPBELL, LL.P. indemnifies J. Steve Mostyn on all cases in which they retain 100% interest and all other cases in which they have physical possession as listed in Exhibits "A" ~ugb "0" where J.

..-.' Steve Mostyn will retain 40% interest 3. This indemnification provision applies to those cases that are considered "in place"

as defined in Addendum "A."

ill. E& 0 COVERAGE

The parties agree to exchange copies of SHERBERT & CAMPBELL, L.L.P. 's E&O coverage to J. Steve Mostyn and~. Steve Mostyn's E&O coverage to Bill and Adrienne Sherbert of. SHERBERT & CAMPBELL, L.L.P.

IV. CLlENTS

Bill and Adrienne Sherbert and J. Steve Mostyn agree that after December 31, 1998, those clients who have cases pending as ofDecember 31, 1998, that terminate, and/or decide to switch finns from SHERBERT & CAMPBELL, L.L.P. to J. Steve Mostyn or from J. Steve Mostyn to SHERBERT & CAMPBELL, L.L.P., will be regarded as cases held in place under the fonnula in attorneys fees as described in the partnership original agreement (as if the partnership were not

~. dissolved).

V. COMMUNICATIONS FOR SlEVE MOSTYN AND STAFF

All parties agree that any phone calls and inquires for Steve Mostyn, Patricia Lorraine or Julio Rodriguez are to immediately be given ournew phone number at (713) 861-6616 and fax (713) 861­8084. There should be no inquires into why the call' is being made. The new address is 550 Westcott Suite 420, Houston, TX 77007 and should be given upon request. Steve Mostyn. Julio

-Rodriguez and Patricia Lorraines' name shall remain with the answering service for a period ofone months from this date. The answering service shall be instructed to give our new phone number when they receive calls from any person.

All mail and faxes received that is addressed to J. Steve Mostyn, Julio Rodriguez or Patricia Lorraine will be held at the front counter for pick up.

Vi BANK NOTES

~.

Bill and Adrienne Sherbert and Mr. Mostyn agreed that the cases. in which Mr. Mostyn retains 100% interest as shown in Exhibit "A" and those cases in which Mr. Mostyn has physical

Page 3 of 5

"

possession and Bill and Adrienne Sherbert retain 40% interest in attorneys fees, that have outstan~gnotes guaranteed by Bill Sherbert, payoffamounts will be obtained from the bank and

those said payoffamounts ofthose individual clients will be paid offby Mr. Mostyn no later than January 8, 1999. The list of cases to which this provision applies includes:

Kathryn Newman Nathan Drummond Roger Morgan (2 notes) Michael Jolmson Rosuara Velazquez

.'

VIT. NUSCELLANEOUS

Bill and Adrienne Sherbert and J. Steve Mostyn agree to eliminate the second generation provision so that Bill and Adrienne Sherbert are not obligated to split fees with J. Steve Mostyn and that J. Steve Mostyn is not obligated to split fees 'With Bill and Adrienne Sherbert which are considered second generation as provided in the partnership original agreement

It will be agreed to by the parties which hard assets i.e. office furniture, office equipment. computers, and office supplies that Mr. Mostyn will take, and the costs ofthese said hard assets will be calculated by Bill and Adrienne Sherbert and Mr. Mostyn's accountants when detennining the total assets and liabilities for the partnership.

In all cases described herein that Bill and Adrienne Sherbert ofSHERBERT & CAMPBELL L.t.P., and J. Steve Mostyn have shared interests, the handling attorney agrees to provided a quarterly update to the non-handling attorneys who retain an interest in the cases.

Bill and Adrienne Sherbert and 1. Steve Mostyn agree to notify each other of necessary appearance dates concerning all cases considered in place as defined in Addendum "A" in which the parties have a shared interest, including but not limited to. mediation dates, court appearances, and trial settings.

VIII. EXPENSES

Page 40f 5

'.· " 4· All expenses reimbursed to SCM in the above p-uagraphs shall be paid outaccording to 'the

fonnulvet out in the }'J3.l-tnership oliginal agreement (as if the partnership were not dissolved)..' . . . .

The llarties agreed to the above terms ancl"conditions' ofthe dissolution ofthe partnership, including but not limited to. th~ division ofcases lU1d"aients, and the manner in which expenses will be reimbursed and disbursed, and any modifications will be done in wrltiIi.g :md ntt2ch~ to this agreement ofdissolution nnd division ofcases.

attuml:ys fe·:s s!1.1.11 be spHt ll'i pl'cvld~i Im/Jer tire p:.lr.I~C'.;hip original c.~"~ement (as if the

parlnec!Jhip were not di;;sf)lved).

Page 5 of 5

CAnIDI. 1-\ _ VV'-':> '\. -'" )V\.~" 'VV , v. -.J ""'" 'J

Total: 60Ca$e Opened Nama Address SOL DOA Type AAe Lawdex

1-3 ~rposefully left blank • 4 2/11198 6lcnn Bowers Houston, TIC 77021 1130/00 1-30-98 PI lCR PI-9S-35

5 10/9/97 Lloyd Barcnscheer Houston, Texas 77088 11/11/97 11-11-95 PI PL PI~97-621

6 9/12/97 Stacia Brown Houston, Texas 77065 DC HA DC-97·S94 7 6123198 Willie Brown Houston, TX 77021 6115100 06-15·98 PI JCR PI-9S-123

8 Purposefully left blank 9 10113/98 Mark Cope Houston, TIC 77057 IIf22J97 11/22/95 PI HA PI-9S-209

10 8/27/98 Arthur Davis Missouri City, TX 77489 12113/99 12-13-97 PI JCR PI-98·1S1

11 11/23/98 Maritza Fey Sugarland, TIC 77479 11/21/00 11-21-98 PI JCR PI-98-239

12 11/25/98 Qualicia Fields Houston, TIC 77029 9/8100 09-08-98 PI JCR PI·98-246

13 Blanca Hemandez Huntsville,Texas 77342 4/4198 4-4-96 PI lCR PI-96-348

14 9130/97 Cordell Holloman Houston, Tcxas77032 9/28/99 9-28-97 PI JCR PI-97-611

15 3/17/98 Erin Hall Houston, TX 77069 2117/00 02-17-98 PI HA PI-97-53

16 7130197 Randy Riebel Houston, Texas 77083 PD lCR CV-97-S70 17 10/13/98 Rosetta Howell Houston, TX 77041 9/15/00 09·15-98 PI lCR PI-9S-210

18 12111/97 Tyia Hall Houston, Texas 77090 8/5/99 8-5-97 PI JCR PI-97-664

19 5/18/98 Troy Heidelberg New Caney, TX 77357 5131/98 5-31-96 PI PL PI-98-1oo

-10114/98 Troy Heidelberg Conroe, TX 77301 5130198 05-30-96 PI lCR PI-98-214

21 6125/98 Chris Kopycinski Manvel, TX 77578 3/14/98 03-14-96 PI PL PI-98-125

22 81 5/98 Carl Kaigler Burton, TX 77835 616100 06-06-98 PI JCR PI-9S·171

23 4/1S/98 Estate ofIdell King Houston, TX 77020 7/11199 07-11-97 MM lCR MM-97·594

24 6/29/98 Leroy Krolczyk Stafford, TX 77477 11/24/97 11-24-95 PI PL PI-98-134

25 4/9/98 Rodger Kendrick Houston. TX 77089 10/28199 10-2S-97 WC JCR WC-97-74

26 6123/98 Sheila Kegans Houston, TX 77055 5/19/00 05-19-98 PI JCR PI-98-125

27 8/5/98 Terri Kaigler Bunon. TX 77835 616100 06-06-98 PI JCR PI-9S-171

28 PurposefuJJv left blank 29 8/6197 Tom Lewis 1lI Houston, Texas 77089 8/4/99 8-4-97 PI PL PI-97-572

30 8121/98 Anthony Muro Houston, TX 77009 5/11/00 05-17-98 PI JCR PI-98-178

31 7/7/98 Christy Munoz Houston, TX 77019 5/22199 05-22-97 PI JCR PI-98-142

32 6/29/98 Linda Mckenzie HOUSIOn, TX 77051 8114/97 08-14-95 PI PL PI-9S-130

33 12/12/97 Maria Mattinez Houston, Texas 77060 12111/99 12-11-97 PI HA PI-97-666

3/27/98 Roger Morgan Huntsville, Texas 77340 12120199 12-20-97 PI JCR PI-98-64 3) 6/29/98 Seyed Katy, TX 77450 10/13/97 10-13-95 PI PL PI-98-t31

36 1117/97 Kathryn Newman Houston, Texas 77070·2236 816199 8-6-97 PI PL PI-97-640

37 7/13/98 Jose Orellana Webster, TX 77598 5/8100 05-08·98 PI HA PI-98149

38 3/26/97 Marcy ~inkI Lerch Beasley, Texas 77417 613/96 6-3-94 WC JCR WC-97-463

39 11110/97 Miriam Pratt Stafford, Texas 77477 7/5/98 7-5-96 PI PL PI-97-639

Tuesday, December 29, 1998 Page 10'2

Opened Name Address SOL DOA Type Me Lawdex "

40 515197 Jason Reeves Houston, Texas 77092 SnJ99 5·2-97 PI 1CR PI-97~91

41 4/17/96 Oscar Reyes Huntsville, Texas 77342 4/4198 4-4-96 PI PL Pj-96-348 42 2124/98 Billy Sweazie Crosby.TX 77.532 1131/00 1-31-98 PI HA Pl-9~2

43 7/7/98 CftSoforo Solis Houston, TX 77060 416100 04-06-98 PI HA PI-9S-140 44 11123198 Candice Steele Sugarland, TX 77479 11121100 11-21-98 PI lCR PI-98-24I 4S 1112198 Jean Shanley Houston, TX 77070 12124/99 12fJ.4197 224 46 11123/98 Roben Steele Sugarland, TX 77479 11121100 11-21-98 PI lCR PI-98-240 47 8/7/98 Sandra Swea:zie Houston, TX 77036 1117/00 01-17-98 PI 1CR. PI-98-173 48 9130198 Sleven Shepard Hol1Scon, TX 77067 8122100 08-22-93 1CR. PI-9S-20S 49 11/4198 Tammy Sweazic Crosby, TX 77532 1117/00 01-17-98 PI 1CR. PI-98-22S 50 10129/98 Jemny Thompson Houston, TX 77058 10/9/00 10-09-98 PI lCR PI-98-221 51 10/5198 Danin Williams Houston, TX 77088 9123/00 09-23-98 PI lCR PI-98-20S 52 6/23/98 Howard Williams Houston, TX 77083 9/6197 09-06-95 PI PL PI-98-124 53 10/16/97 Brenda zabodyn Conroe, Texas 77306 1117199 1-28-97 PI -RA PI-97-626 S4 12/16197 Jaculyn Zigtema Tyler. Texas 75701 12112199 12-12·97 PI PL PI-97-67S 5S Herman Horton

56 Felton Canno\1ch

57 Robert Martin

Ray McFarland

59 Nancy Tatum

60 Stacie Smith

61 Chad Timmons

62 Dorothy Williams

• EXHIBIT'S' Ut'#-S t~+ rev'\'\lLl tf\. Case

Opened Name Address

as 1 618198 RBynaldo Aguirrev' Aransas Pass. TX 78336

8M2 9/25/97 Kennisha Brown Houston, Texas 77092

aS3 8/14/97 Maria Contrerasv' AIansas Pass. Texas

SM@ Edward Gage Hempstead, Texas 77445

SMeJ MaIyGurode Houston, Texas 77015

Susan Galvin J HoU$1on, Texas 71079 as& 8M 11 5/98 Joe McConaga Jr. Houston. Texas 71040 Sr.@ 7/28/98 Nathan M<:Dona1~ Bay City, TX 77414 .53> 6/11197 Reynaldo Macias South Houston, Texas 77587

,.S 10/2]197 Gabino Rodriguez Houston, Texas 77093

5~ 1/6198 Lany Robins Houston, Texas 77042

8M 2 1'1J21197 Ruth Whitaker V Tyler. Texas 75701 8M 13 Terry Wade ...; 81V114 Kelly Reynolds 1 15 Carey Durden v BS 16 Juana Arana v'

U ((\ ~~!I Total: 13

SOl. DOA Type AAe Lawdex

8110199 08-10-97 - PL PI-97-582 9/.8199 ' 9-18-97 PI ICR PI-97~

8/5199 8-.5-97 PI PL PI-97·S82 3/12199 3-12·97 PI ICR PI·97-465 4/22/98 4-22·96 PL PI·96·350 3/18/98 3·18·96 PI PL PI·96·337

1/4/00 1-4-98 PI lCR' PI-98-1 9/15191 09·15-89 PI ICR PI-98·165 6110199 6-10·97 PI PL PI-97·521

1/6199 1-6-97 PI PL PI·97-630 1/4/00 14-98 PI JCR PI-9S·}

12/27/97 12-27-95 PI JCR PI-97-679

· Ctt~s ~ WI {h. <A>!;rr;:~'J. 'S~ ,..(.iUl5~ 1'1:XHIB1T C Case Total: 17

Opened rtame Address SOL DOA Type Me L:aWdex

CD 10123197 lahangir Ayyobi Houston, Texas 77012 8/6199 8--6-97 PI PL PI-97-633

2 121 5197 Cheryl BrawnY Houston, Texas 77096 1118199 11-08-97 PI lCR PI-97-6S9

~ ).. 121 5/97 Robert Brown v Houston, Texas 77096 11/8/99 11-8-97 PI lCR PI-97-659 ...--"'.,A) 101 2197 Alfred Davis Van Vicke. Texas 77482 9/17/99 9-17-97 PI HA PI-97-619

10123/97 Nathan Drummond Houston, Texas 77079 8/6199 8-6-97 PI PL PI-98-55 6121/97 Maria Gaytan Houston. Texas 77075 10118198 10-18-96 PI PL PI-97-544 6120/97 Guadalupe Huerta Houston, Texas 77017 10/18198 10-18-96 PI PL PI·97·S44 12/3/97 Blanca Izquierdo Houston, Texas 77021 11/16/99 11-16-97 PI lCR PI·97-665 12/3/97 Eli:z.abeth Izquierdo Houston. Texas 77021 11/16/99 11-16-97 PI lCR PI-97-665 1'1J22/97 Michael lohnson Houston. Texas 77026 12/17/99 12-17-97 PI PL PI-97-677 TO BE SPLIT 50150

Arthur Mayo Santa Monica, California 90404 8/29/97 8-29-95 PI PL PI·97-539 6/13/97 Arthur Mayo Los Angeles, California 99048 8/29/97 8-29-95 PI PL PI-97-539

10129/98 Bryan Rehbein La Porr. TX 77571 9125/00 09-25-98 PI lCR PI-98-220

Purposefully left blank v 11/16/97 Catalina Velazquez Houston. Texas 77012 11/16199 11-16-97 PI lCR PI-97-665

~1 C!?

1213/97 Rosaura Velazquez SAM MYERS TINA JAYNES

TIMOTHY RAY

Houston. Texas 77021 11/16199 11-16-97 PI PL PI-97-665

1234567

Opened Name

7/9/98 Ji.Quny Burton 8/13/97 David Howard 8/13/97 Martha Howard 8/13/97 PaDSy Oliver 6/3/98 Dccanna Powell , 9/1/98 Page Butera

OllicCartcr

Address

Houston, TX 77016 Houston, Texas 77016 Houston, Texas 77051 Houston, Texas 77051 Houston, TX 77084 Missouri City. TX 77459

SOL

1123/00 8/12/99 8/12/99 8/12/99

12/13/98 9/1100

DOA Type

01-23-98 PI S-12-97 PI 8-12-97 PI 8-12-97 PI

12-13-96 PI 9/1/98 PI

AAe 1CR PL PL PL HA JCR

Lawdex

PI·98-14S PI-97-SS0 PI-97-S80

PI·97·SS0 PI-98-117 Pl·98·187

....,

·. '. AU Cases Total: 90

Status: Referred

Opened Name Address SOL DOA Type Me Lawdex

1 ZaBfeAJan Houston. Texas 77064 212/98 2-2-96 JeR Pl-96-329

2 Mario Aldama Houston, Texas 77012 5/19197 5-19-95 JCR PI-95-354

3 519197 Brian ADdrus Houston, Texas 77076 516/99 5-6-97 PI JeR. PI-97-493 4 Sf 9/97 Kimberly Andros Houston. Tum 77076 5/6199 5-6-97 PI JCR PI-97-493 5 Maria ARUano Pasadena. Tcxzs 77504 2/14/98 2-14-96 PI JCR PI-96-333

..6 Sandy Bailey )( Houston, Texas 77044 1130196 1-30-94 JCR PI-94-137 7 Petc BcnIlIncur;< Richmond, Texas 77471 7123198 7-23-96 JCR PI-96-36I 8 817198 Eilceen 'Berk Willis. TX 77378 HA 9 5129198 Dewane Bomar Spring, TX TT373 . 8123199 08-23-97 PI JCR PI-98-J J2

10 8/17198 Bitlie CaJr Houston. TX 71028 11 Johnny Castillo Houston, Teas 77007 2125198 2-25-96 JCR PI-96-343 12 13

8/17/98 MarilynCloud 1J/11197 Carl Cocpcr III

Corsicana. TX 75110 El Paso, Tcus 19925

2/1199 1118199

020197 11.&-97 PI JCR PI-97-641

14 IdeJlaEaly Waller. Texas 77484 5/19195 5-19-93 JCR PI-93-421 15 Bertha Evans Houston, Texas 77016 3/14197 3-14-95 JCR PI-9S-28I

Kimberly Evesson livingston, Taas 77351-9718 10/10197 10-10-95 JeR PI-96-325 11 Matthew Evesson Livingston, Tc:as 77351-9718 10110197 10-10-95 JCR PI-96-325 18 Alberto Garcia Galena Pad:. Texas 77575 2128/94 2-29-92 JCR PI-92-27 19 Anum Glrcia Houston, Tr::us 77017 12127196 12-27-94 JCR WC-94-249 20 Jimmy Garcia Richmond, TCDS 77469 7123198 7-23-96 CLS PI-96-36I 21 Kevin Garcia Houston, Taz 77034 2/14/98 2-14-96 JCR PJ-96-333 22 Ana Gilbonio Houston. TellS 77083 3/15198 3-15-96 HA PI-96-349 23 Blanca Gonzales Houston, Teus 77022 415/98 4-5-96 a.s WC-96-404 24 51 1198 Robert Griego Leesville. Ullisiana 71446 1/1101 0-0-00 CV lCR CV-98-89 25 26

Rodolfo Guardado Greg Hall

Houston, Teas 77039 Houston, Teus 77019

111199 5nJ98

N/A 5-2-96

GM JCR

PI-94-148 PI-96352

27 8/6198 Raymond Harvey Houston, TX 71061 7130/00 07-30-98 WC lCR WC-98-172 28 8/17/98 Roy Harvis Crockett. TX 75835 29 LanyHaynes Houston. TeDS 77011 1/1/99 Unknown JCR PI-96-374 ?II II/ 5198 Joel Hemmdez Jacinto City, TX 77029 8/13199 08-13-97 we

David Hinton Houston, TC13S 77004 12/4194 12-4-92 JCR LS-93-7

32 Sherrian Houston Carolton, Teus 75007 3122195 3-22-93 JCR PI-93-28 33 8/7198 Paula Jac:bon Bellville, TX 77418 6/12100 061298 PI 34 Catherine Johnson Bellville, TalIS 7741 g 1/5198 7-5-96 JCR PI-96-403

3S 7/13/98 James Jobllson Houston, TX 71088 5127100 05-27-98 PI JCR PI-98-150 36 Clarence Johnson Jr. Bellville, Texas 77418 11/1194 11-1-92 JCR PI-92-)ll

37 CaseyJoues Houston, Texas 77026 519191 5-9-89 SeR PI-89-122 38 BanyKC'rin Houston, Tc:xz 77036 1/1/99 Unknown PI JCR PI-96-377

39 L1ewel \yD Leadon Houston. Ta.as 77088 3/18/97 3-18-95 JCR LS-95-273

40 Richard Leon Libeny, Texas TlS7S PI-93-88

41 41 8/98 Debra MlYor New Waverly, TX 77358 1/1/99 JCR PI-98-103

42 4123/98 Richard Martinez Houston. Tems 77039 3/19/00 03-19-98 PI JCR PI-98-82

43 8/17198 Paula Maxie Lufkin, TX 1m1 44 8/17198 Rita Maxie Lufkin, TX 1mI 45 Latonya Mayes Houston, Texas 77028 Ifl7194 1-21-92 JCR PI-92-33

46 Sheila Mayes Houston, Tem 77028 Ifl7194 1-27-92 JCR _ PI-92-33

47 6/219&. Roger McNiel Livin~ton, TX 7735 I 12115199 12-15-97 PI JCR PI-98-115

Thursday, December 31,1998

~fP;J fj{,/L

Page 1 of2

j

Status: Referred

. Opened Name Address SOL DOA Type Me Lawdex

48 Johnny McPeters Conroe, Texas 77301 6/5192 6-05·90 JCR PI:.90e1I2

49 50

James Murray..... TuanNguyen

Houston, Texas 77064 HoU$lon. Texas 77048

8/18197 1/1/99

8-18-95 Unknown

JeR JCR

PI-9S-299 PI-96-377

51 XoanNguycn Houston, Texas 77080 1/1199 Unknown JCR PI-96·377

52 11 6198 Twana Pt&e Humble, Texas 77338 CC HA CC-98-S

53 417198 Manuel PaIa Houston, TX 77053 9/26/99 Cl9-26-97 WC JCR WC-98-73

54 Linh Pham Houston, Texas 77048 1/1/99 tJalc:nown ICR PI-96-377

5S Helen Polk Trinidad, Texas 75163 6130187 6-30-85 JCR PJ-8S-89

56 Clarence Provo Houston, Texas 77020 PI-92·9I

57 12116/98 Susan Pug1I Friendswood, 'IX 77546 1219100 12-09-98 CV

58 .219/98 Howard lWvis Houston, TX 77024 9/4/99 9-4-97 JeR PI·98-32 59 . Troy Randle Houston, Texas 77088 1216197 12-6-95 CLS LS-9S-330

60 10/9/97 Phelmar Roberts Houston. Texas 77091 6/5/99 6-5-97 LS JCR LS-97-62S 61 Martina Saenz Houston, Texas 77013 4/2/98 4-2-96 JCR PI-96-344 62 Ninfa Sa=z Houston, Texas 77007 2IlS198 2-25-96. JCR PI-96-342 63 David &n.via Houston, Texas 77085 1012197 10-2-95 SCR PI-95-309

64 Stanley Saucedo Stafford, Texas 77477 111199 Unknown SCR PI-96-373 8/7/98 Mellie Sq,ers Onaiska, Tx 77360 9/9199 090997

66 Marie Smith Corsicana, Texas 75110 1/13/98 1-13-96 JCR PI-96·326 67 8/17/98 Andrew Spaulding Houston, TX 770SS 111/00 01-98 68 Clarence 'Stubblefield Houston, Texas 77091 1/1/99 UukDown PI SCR PI-96-37S 69 Josh Stubblefield Houston, Texas 77015 1/1/99 Unknown SCR PJ·96-376 70 2117/98 Josh Stubblefield Houston, TX 77015 CD CD-9840 71 Thien 1"haMle Houston, Texas 77036 1/1199 Unknown PI SCR PI-96-377 72 Helen Thomas Houston. Texas 77091 8/8197 8-8-95 SCR Pl-9S-321

73 5/19/98 Neva Thanas Houston, Texas 77032 8/15199 08-15-97 MM SCR MM-98-102 74 Angela, TiDmpson HOU$lon, Texas 77016 PI-90-79 75 Terrance Thompson Houston, Texas 77016 PI·90-79

7fJ 10123/98 George lbowot Katy, TX 77493 10/3/00 10-3-98 PI JCR PI-98-218 77 8/17/98 RaymondTumer Brenham, TX 77833 78 Archie V1IIlCC Houston, Texas 77022 1/1/99 Uoknown sca PJ-96-374 -') 8/7/98 Michael Wahnon Houston, TX 77043 3/13100 031398 .J 8/7/98 Patricia Wahnon Houston, TX 77043 3113/00 031398 81 8/7/98 Andrea Laoac Walker Houston, TX 77016 7115/00 071598 HA 82 1130/98 Rosemary Walker Livingston, Texas mSl 8111/99 1-11-97 PI SCR PI-98-27 83 11119198 Joann Washington Houston, TX 77033 11111100 It-I 1-98 PI HA PI-9S-2J8 84 8/17/98 Earnest Webb Houston, TX 77066 1111199 110197 85 Max Webb Sr. Houston, Texas 77015 111/99 Iilknown JCa PI-96-376 86 .Catelyn Williams Marion, AJXansas 72364 8/1/96 8-1-94 SCR PJ-94-207 81 David Wiffiams Midland, Texas 79705 1/1199 O~I-99 HA 88 Hugh Williams Houston, Texas 77047 6f23/95 6-23·93 JCR PJ-93-86 89 Lee Williams Waller, Texas 77484 3122195 3-22-93 HA PI-93-28 90 10/7/97 John Williams Jr. Houston, Texas 77028 5/1199 5-1-97 PI HA P1·97-618

CASES REFERRED

J ....

ALDAMA, MARIO RS 7/91 • HINTON, DAVID RS 7/91 •

3 JEFFERSON, O.T. RS 7/91 • 4 LEADeN, LlEWELLYN RS 7/91 '* 5 PROVO, CLARENCE RS 7/91 • 6 RANDLE, TROY RS 7/91.* 7 Maria Arellano

r: Greg Hall Josefina'Enriquez ETAL

10 Martina Saenz 11 Mathew Eveson 12 Lori White 13 Pete Bentancur & Jimmy Garcia 14 Estrellita Ventura

V',(' JOHNSON, MELVA KK 7/91 '* y~ THOMPSON, ANGELA KK .... Vi7 WILSON, HAROLD KK 7/91 • \118 SILVETTI, PATTY JO GOLDA 7/91.

19 JOHNSON, CLAREN'CE CP 7/91· 20 SENTER, PERRY ETAL CP 7/91 • 21 WILLIAMS, HUGH JR. CP 7/91 * 22 GARCIA, ARTURO CK 7/91 '* 23 SERMENO, ARTURO CK 7/91 '* 24 ALAN, ~IFE CB 7/91 * 2S BAILEY, -SANDY CB 7/91. 26 BIAS, LOUCINDA CB * ~ BLEDSOE, JOHNNIE CB 7/91. * 28 CASTILLO, JOHNNY CB 7/91 '*

/19 EALY, IDELLA ca 7/91 '* ., EVANS, BERTHA CB 7/91 *

31 GILBONIO, ANA CB 7/91 • 32 HOUSTON, SHEmuAN at a1 CB 7/91 • 33 JONES, CASEY CB .... 34 LANE, ERNEST CB 7/91 .... ,as MAYES, SHEILA CB 7/91 • 36 McPETERS, JOHNNY CB * 37 MORRAY, JAMES P. CB 7/91 • 38 POLK, HELEN MARIE CB * 39 SAENZ, NINFA CB 7/91 * ~O SARAVIA, DAVID CB 7/91 * 41 SMITH, MARIE CB 7/21 CB * ~2 THOMAS, HELEN CB 7/91 * 43 VASQUEZ, CANDELARIO CB 7/91 • 44 JOE HALL 45 wn..LIAMS, ALAN AfNIF MELtSA .

1'~\}r'bll~~ I <01 /f.~/ ,1.41-(1'70

05-19-95 12-04-92

03-18-95

12-06-95 02-14-96 05-02-96 03-1.8-95 04-02-96

09-17-90

11-01-92 03-06-95 06-23-93 12-27-94 12-08-94 02-02-96 01-30-94 09-03-87 09-29-94 02-25-96

03-14-95 03-15-96 03-22-93 05-09-89 09-08-92 01-27-92 06-05-90 08-18-95 06-30-85 02-25-96 10-02-95 01-13-:96 08-08-95 11-26-95

05-19-97 12-04-94

03 -18-97

12-06-97 '02-14-98 05-02-98 03-18-97 04-02-98

09-17-92

11-01-94 03-06-97 06-23-95 12-27-96 12-08-96 02.-02-98 01-30-96 09-03-89 09-29-96 02-25-98

03-14-97 03-15-98 03-22-95 05-09-91 09-08-94 01-27-94 06-05-92 08-18-97 06-30-87 02-25-98 10-02-97 01-13-98 08-08-97 11-26-97

ADRIENNE'S AND BILL'S LIST "...

Walter Angerstein Doris Cloud Donna Cooper Courtney Crawford Emily Edgington Susie and Jay Green Georgian Harris Wayne Hill Trena Joseph Betty LeBlanc Charlotte Nail Ernest Nesbitt Hazel Nowling Max Parker Diana Sanchez and Rosanna Soto Sharika Smith Hilda Sustaita Rebecca Truillo Lola Thome (2) Ronnie Tyler Johnny and Heather Wheeler Costello Winters Jennifer Garza Eona Pugh (2) Farzin Khajehnouri Stephanie Love Kenneth Orr April Carmouche Wilbert Carmouche Nathan Casey and Monica Kelly Lester Cohen Sallie Francis Arnulfo Guytan Alicia and Thomas Grifaldo Sandra Hudson Gail Jones Ashley Layden and Robert Weatherford Rosie Linear and Jerry Miller Joyce McBride Shane and Marc Clemons ROberto Corrales Margarita Garza - TBC

Jesse Rush Ed an4-Roderick Anderson and Darrell Johnson (TBC) Cynthia Betacourt Freddie Franklin Bridgett Johnson Cherisha Johnson Catherine Peck Marcus Pennie Chris Preuss James Jones James Smith Andrea, Allen and Domlnque Steptoe Emitt Thompson Beatriz Uriante Paula Walker Elizabeth Wells Sheila Williams Alice Garcia Carolyn Carter Shirley Bean Nathanial Brandon and Kenneth Slay Michael, Linda and Missy Clow Frank Dixon Tonya English Janice Frederick Marbary Hammonds Martha Hardin Warren Holland Ana, Angela and Grace Moran Charles Nelson and Keithric Thomas Rosa Perez Donald Thurman Jerry Miller Shawan Moore Shanequa Pankey Felisita, Isaac and Paulino Ochoa Mervin Pellerin Taylor Thomas and Seneca Brooks Chad Timmons Stacey Wodarski Loudrica and Louis R~gers and Lashonda Wyble Karina Sanford Mark Shorten Lorena Rojas Tanya Robinson

Tanya Robinson Lanza Adams Maria and Severiano Almazo Tiffany Bemard Yvonne Baker and Michelle Synder Dominic Cuccerre Elizabeth Cannon James Burton and Rose Warner Kimberly Cruise Matilda Campos Bennie Dunn Christopher Daniel Arlena and Dierdra Gray Fred Goss Jerry Goree, Jr. Jerry Gorre, Jr. and Ruby Justice James Grisby, Jr. Carol Hatter Chris Johnson Vemel, Valenia and Vemel'(et al.) Jackson Shem Kendall John Lee Sydell Liniscombe Pamela Lewis Igdalia Miranda Molly and Robert Mitchell Alicia Osborne Joseph Odorn Robert OSbome( Deanna Powell Maryam Rahvar Anita Smith Dora Sanchez Tusha Shaw Bob Tharp Mary Thomas Warren Thompson Merilyn WilJiams Debra West Kelly White Melinda and David Calloway Ethal Landry and Kia Terry Keith Rankin Earl Joseph Shirley Carter and Bryan Rone

Joey Esterer Trevor.Gentry Samantha Matthews Carolyn Hawkins Michael Hardiman Chris Jones Lucias Josey Eunice Layden Estelle Levine Bruce Lowry and Kenneth Williams Gladys Mosely June Reddic, Ava Randle, Kelvin L. Randle, II, Ashley J. Randle, Alexis J. Randle Terri Ross . Samuel Watkins Jimmy Roverson Igdalia Miranda Debbie and Robert Taylor Delwin Jenkins, et aJ. Doris Roes Chimira Watson . Carlos Cooper/Brittany Ratcliff Chandra Burrell

Problem Cases TBC: Shonda Thome Benny Dorsey Shamique Coleman Gernaro Bemell Ardell Garrett Chris Gamett

y Barbara Haley Johnnie Schubert Gloria Silva (L1gastera) Carry Ross Vernie Dale Michael Rougeau/Michael Burton Michael Wells

'.~

'if',,I