ACCEPTED

03-14-00250-CV

3901099

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/26/2015 3:12:16 PM

JEFFREY D. KYLE

CLERK

In The 

Court of Appeals 

For The 

Third District of Texas 

NO. 03-14-00250-CV 

American Homesites, TX, LLC and Alexandra Krot, Appellants 

v. 

Fidelity National Title Insurance Company, Appellee 

On Appeal from the 353rd District Court 

Travis County, Texas 

Trial Comi Cause No. D-1-GN-14-000590 

APPELLANTS' MOTION FOR REHEARING 

Donald H. Grissom 

State Bar No. 08511550 

don@gandtlaw.com 

509 West 12th Street 

Austin, Texas 78701 

(512) 478-4059 

(512) 482-8410 fax 

ATTORNEY FOR APPELLANTS 

1 

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/26/2015 3:12:16 PM JEFFREY D. KYLE Clerk
In The 

Court of Appeals 

For The 

Third District of Texas 

NO. 03-14-00250-CV 

American Homesites, TX, LLC and Alexandra Krot, Appellants 

v. 

Fidelity National Title Insurance Company, Appellee 

On Appeal from the 353rd District Court 

Travis County, Texas 

Trial Court Cause No. D-1-GN-14-000590 

APPELLANTS' MOTION FOR REHEARING 

TO THE HONORABLE FIFTH 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 show the Comi the following: 

I. INTRODUCTION 

This is an action for breach of fiduciary duties, fi·aud and conspiracy 

to commit fi·aud. Over the course of months, Appellee successfully colluded 

2 
with 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 of Defendant'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 

3 
Appellants filed their Notice of Appeal on April21, 2014 (R. at 591). Later, 

on December 31, 2014, this Court issued their Memorandum Opinion, 

affinning the Trial Court's order granting summary judgment for 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 

documents presented Appellee as an innocent bystander. 

In Appellant, Krot's affidavit (R. at 252), at paragraph 11, the 

documents produced in 2013 are distinguished fi·om those produced in 2007. 

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 of the 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 summary judgment were part of the 6,000 

pages -- not previously produced. 

The documents identified below were not contained in the 2007 

production, but were produced in 2013 and showed the following: 

4 
• Appellee knew that the principals of J&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 of Appellants' money as earnest money 

(R. at 426) as evidenced by the Chart of "Funds received by 

Fidelity National Title Insurance Company" Wild Horse Ranch 

5 
004708 (R. at 426). Fidelity knew that it was using monies held 

for other persons to close this transaction; 

• Appellee held $150,000 of Appellants' 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 Ranch 004708 (R. at 426); 

• Appellee held $300,000 of Appellants' money on the 414-acre 

contract. (R. at 426) as evidenced by the Chart of "Funds 

received by Fidelity National Title Insurance Company" Wild 

Horse Ranch 004708 (R. at 426); 

• Fidelity opened numerous guaranty files on the entirety of the 

Wild Horse Ranch and various sub-parts (R. at 396-97 and 408) 

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 

6 
documents produced in 2007. 

III. CONCLUSION 

It is not the great disparity in the number of documents 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 of records as well as the extent of Appellees role. Using logical 

reasoning, one can make the inference that the withholding of records was 

meant to conceal wrongdoing by the producing party, in this case, the 

Appellee, and thus toll the statute of limitations. 

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 law or equity, to which they may be justly entitled. 

7 
Respectfully submitted, 

/s/DonaldHGrissom 

Donald H. Grissom 

don@gandtlaw.com 

GRISSOM & THOMPSON, LLP 

TX State Bar No. 08511550 

William W. Thompson, III 

TX State Bar No. 19960050 

509 West 12th Street 

Austin, Texas 78701 

512/478-4059 

512/482-8410 Fax 

ATTORNEY FOR APPELLANTS 

CERTIFICATE OF SERVICE 

I hereby certify that a tme and correct copy of the foregoing document 

has been forwarded to all counsel of record in compliance with Texas Rules 

of Appellate Procedure, via facsimile, electronic, or ce1iified mail return 

receipt requested, on January 26, 2015. 

Christopher R. Mugica 

Jackson Walker, LLP 

100 Congress A venue, 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 

Donald H. Grissom