ACCEPTED 03-14-00250-CV 3901099 THIRD COURT OF APPEALS

AUSTIN, TEXAS 1/26/2015 3:12:16 PM JEFFREY D. KYLE

CLERK InThe Court ofAppeals ForThe ThirdDistrict ofTexas
NO. 03-14-00250-CV
American Homesites, TX, LLC andAlexandraKrot,Appellants
v. FidelityNational TitleInsurance Company,Appellee
OnAppeal from the 353rdDistrict Court Travis County, Texas Trial ComiCauseNo. D-1-GN-14-000590
APPELLANTS' MOTION FORREHEARING
Donald H. Grissom State BarNo. 08511550 don@gandtlaw.com 509 West 12th Street Austin, Texas 78701 (512) 478-4059 (512) 482-8410 fax ATTORNEYFORAPPELLANTS

1InThe Court ofAppeals ForThe ThirdDistrict ofTexas
NO. 03-14-00250-CV
AmericanHomesites, TX, LLC and AlexandraKrot,Appellants 

### v. FidelityNational Title Insurance Company,Appellee
OnAppeal from the 353rd District Court Travis County, Texas Trial Court CauseNo. D-1-GN-14-000590
APPELLANTS' MOTIONFORREHEARING
TO THEHONORABLEFIFTH COURT OF APPEALS: Appellants American Homesites, TX, LLC and Alexandra Krot, ("Appellants") file this, their Motion for Rehearing of the Court's Memorandum Opinion dated December 31, 2014. In support of their motion, Appellants respectfully showthe Comithe following: I. INTRODUCTION This is an action for breach offiduciary duties, fi·aud and conspiracy to commitfi·aud. Overthe course ofmonths, Appellee successfully colluded 2with other parties to denude Appellants out of hundreds of thousands of dollars in a fi·audulent real estate scheme. By this Motion for Rehearing, Appellants, American Homesites, TX, LLC and Alexandra Krot, ask this Court to revisit its decision to affirm the Trial Court's granting ofDefendant's Traditional and No-Evidence Motion for Summary Judgment. Rehearing is appropriate in this litigation because the Comt's ruling neglects critical evidence presented and has a dispositive effect. For that reason, Appellants urge the panel to consider the following argument. 

### II.PROCEDURALBACKGROUND In 2006, Appellants filed suit against several Defendants (Sky Group of Texas, Wolf, Zaretsky, et al) in Cause No. D-1-GN-06-004414, In the 353rd Judicial District Comt of Travis County, Texas. In May 2013, Appellants sued Appellee alleging conspiracy to commit fraud and fi·audulent concealment of evidence that tolled the statute of limitations. Thereafter, Appellee filed a No-Evidence and Traditional Motion for Summary Judgment. The Trial Comi granted the Motion on January 30, 2014 (R. at 568). Appellee then filed a Motion to Sever the claims against Appellee which was granted on February 21, 2014 (R. at 569). The severed action was assigned Cause No. D-1-GN-14-000590 (R. at 569) and
3Appellants filed their Notice ofAppeal on April21, 2014 (R. at 591). Later,
on December 31, 2014, this Court issued their Memorandum Opinion, affinningthe Trial Court's ordergranting summaryjudgmentfor Appellee. II. ARGUMENT In the Record, Appellants clearly identified which documents were received in 2013 that were not previously produced in the 2007 round of production, and that the 6,000 plus documents produced in 2013 demonstrated Appellee's role in fraudulent activities where the 2007 documentspresentedAppellee as an innocentbystander. In Appellant, Krot's affidavit (R. at 252), at paragraph 11, the documents produced in 2013 are distinguished fi·om those producedin2007. Krot unequivocally states that none of the 6,000 documents produced in 2013 were part of the original 2007 production. Indeed, Fidelity did not contradict this claim. Fidelity never claimed or argued that any ofthe 2013 6,000-page production was produced in 2007. Krot fmiher specifically identifies that the documents referenced and attached to the affidavit and response to Fidelity's motion for summaryjudgment were part ofthe 6,000 pages -- notpreviouslyproduced. The documents identified below were not contained in the 2007 production, butwere producedin2013 and showedthe following:
4• Appellee knew that the principals ofJ&T (Wolf, Zaretsky, and Borokhovich) were the same as the principals of Waterfall Gallery as evidenced by (1) Secretary of State Filings for Waterfall Gallery (R. at 446) Wild Horse Ranch 002239- 002246, (2) Indemnity and Guaranty Agreement (R. at 469) Wild Horse Ranch 000082-000097, and (3) Secretary of State Filings for J&T Development (R. at 516) Wild Horse Ranch 004863-004865. The buyer and seller were one in the same. In essence, self-dealing;
• Appellee closed the sale of the 200-acre tract from J&T to Waterfall Gallery of Austin. (R. at 462) even though Sky Station 200 still held the purchase contract assignment from Sky Group. (R. at 461) as evidenced by (1) Assignment of Unimproved Property Contract (R. at 461), and (2) General Wananty Deed With Vendors Lien (R. at 462) Wild Horse Ranch 002560-002566. There was no contract on which Fidelity could open a guaranty file;
• Appellee held $25,000 ofAppellants' money as earnest money (R. at 426) as evidenced by the Chart of "Funds received by Fidelity National Title Insurance Company" Wild Horse Ranch
5004708 (R. at 426). Fidelityknewthat it was using monies held for otherpersons to closethis transaction;
• Appellee held $150,000 ofAppellants' money on the 200-acre contract (R. at 426) as evidenced by the Chart of "Funds received by Fidelity National Title Insurance Company" Wild Horse Ranch004708 (R. at 426);
• Appellee held $300,000 ofAppellants' money on the 414-acre contract. (R. at 426) as evidenced by the Chart of "Funds received by Fidelity National Title Insurance Company" Wild HorseRanch 004708 (R. at426);
• Fidelity opened numerous guaranty files on the entirety ofthe WildHorse Ranch andvarious sub-parts (R. at 396-97 and408) although there were no contracts or surveys to support these files; and
• Fidelity wired out over two million dollars at the direction of the other defendants, which made this a cash-back at closing transaction (R. at 162). When taken together this evidence shows, at least circumstantially, that Fidelity participated in the conspiracy to defraud Appellants. None of these facts were known or made available to the Appellants in the
6documentsproducedin2007. 

### III. CONCLUSION It is not the great disparity in the number ofdocuments produced that evidence Appellee's fraudulent concealment; it is the facts contained within the newly produced documents that provide the reason for the previous concealment ofrecords as well as the extent ofAppellees role. Using logical reasoning, one can make the inference that the withholding ofrecords was meant to conceal wrongdoing by the producing party, in this case, the Appellee, and thus tollthe statute oflimitations. 

### IV. PRAYER Appellants respectfully request that this Court reverse its opinion of December 31, 2014, grant Appellants a new hearing, and such other and further relief, at lawor equity, to whichthey maybejustly entitled.

7Respectfully submitted,
/s/DonaldHGrissom Donald H. Grissom don@gandtlaw.com GRISSOM & THOMPSON, LLP TX StateBarNo. 08511550 William W. Thompson, III TX State BarNo. 19960050 509 West 12th Street Austin, Texas 78701 512/478-4059 512/482-8410 Fax ATTORNEYFORAPPELLANTS CERTIFICATE OF SERVICE I hereby certify that a tme and correct copy ofthe foregoing document has been forwarded to all counsel ofrecord in compliance withTexas Rules of Appellate Procedure, via facsimile, electronic, or ce1iified mail return receiptrequested, onJanuary 26, 2015.

ChristopherR. Mugica Jackson Walker, LLP 100 Congress Avenue, Suite 1100 Austin, Texas 78701 512-236-2000 512-236-2002 fax /s/DonaldHGrissom Donald H. Grissom

CERTIFICATE OF COMPLIANCE I hereby ceJiify on this date that the foregoing document contains 1,185 words.

8 /s/DonaldHGrissom DonaldH. Grissom