1 NO. 06

- 16 -00001- CV
IN THE SIXTH COURT OF APPEALS

AT TEXARKANA, TEXAS

CARL STORCK AND VICKI STORCK

v. TRES LAGOS PROPERTY OWNERS ’ ASSOCIATION, INC.

IN CAUSE NO. 10,964 FROM THE SIXTY-SECOND JUDICIAL DISTRICT

FRANKLIN COUNTY, TEXAS

APPELLANTS ’

BRIEF

Gene Stu mp SBOT No. 24048824 P.O. Box 606 Mount Vernon, TX 75457 Ph: (903) 305-9079 Fax: (903) 588-2272 ATTORNEY FOR APPELLANTS
Jul y 6, 2016 ACCEPTED 06-16-00001-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/6/2016 5:30:34 PM DEBBIE AUTREY

CLERK2 IDENTIFICATION OF PARTIES AND COUNSEL

Trial Court level: (A) A ppellants and Plainti

ff/Counterdefendants Carl and Vicki Storck Counsel for Plaintiff Gene Stump Attorney at Law P.O. Box 606 Mount Vernon, TX 75457 Ph: (903) 305

- 9073 Fax: (903) 588

- 2272 genestump@yahoo.com

(B) Defendant/Cou nterplaintiffs Tres Lagos Property Owners’ Association, Incorporated 153 Azalea Lane Mount Vernon, TX 75457 Pro se

(C ) Appellee and Intervenor Larry Wright Attorney at Law P.O. Box 144 Winnsboro. TX 75494 Ph: (903) 342

- 1089 Fax: (903) 342

- 1088 Pro se lawyerwright@msn.com3 TABLE OF CONTENTS

Identity of p arties and counsel........................

...................... . ... . ...2
Table of conten ts....................................

...................... ...... . ... ..3
Ind ex of authorities..............................

................................. .....4
Statement of t he ca se.................................... ..............................5 Issues presented

.................................... ....................................7
Statement of facts

...................................................... ................8 Summary of the argu ment............................................. ..............9 Argument Point presented for revi ew number one............... ....................10
THE COURT SHOULD SET ASIDE THE JUDGMENT IN THIS CASE DUE TO POST

- JUDGMENT INTERVENTION Prayer.........

... ...................................................................14 Appendix.....................

.... .............................................after 15 Certificate of Service Certificate of Compliance4 INDEX OF AUTHORITIES

( Guaranty Federal Savings Bank v. Horseshoe Operating 793 S.W.2d 652, at 657 (Tex 1990)).

............ ................................................... .10 ( First Alief Bank v.White , 682 S .W.2d 251, at 252 (Tex 1984))............

. .10
Civil Practice and Remedies Code Section 31.002

........................ .....11 Texas Mutual Insurance Company v. Olivas , 251 S.W.3d 31, at 36 (Tex 2008))

............................................................................................................ 11
Tex as Rules of Appellate Procedure Section 24.2(a)(1)............

............ 125 STATEMENT OF THE CASE

This is an appeal to set judgment aside due to post

- trial intervention. Appellants are Carl Storck and Vicki Storck, and Appellee is Larry Wright,
Intervenor. This is an appeal out of the 62 nd Judicial District in Franklin County, Texas.
This case was originally tried before the court and appealed to the Sixth Court of Appe als

. Appellants appealed to the Supreme Court of Texas and petition was denied. After the appeal in this case, the trial ruled in a subsequent case, Cause Number 11,223, that the Board of Directors of Tres Lagos Property Owners’ Association, Incorporated (TLPOA) was invalid , and that al l actions taken by the TLPOA Board of Directors since September 29, 2007, are void, which time includes the duration of this lawsuit ( Cl. Rec.

at 13,15 ). Appellants filed a Motion to Releas e Cash Bond to Appellants and
subs equent amended motions ( id at 5, 10 , 51) . The cash bond in q uestion
was tendered by Appellants for purposes of Writ of Supersedeas for appeal ( id at 5 )

. TLPOA released the Judgment in the case by board resolution and
filed an affidavit for Release of J udgment signed with authority by the
Tr easurer of TLPOA ( id at 26, 28 ). Another affidavit for Release of6

Judgment was signed by the association President and filed ( id at 62). Attorney Larry Wright, former attorney for TLPOA, filed a Petition in Intervention seeking to intervene, have release of judgment set aside, and for the cash bond to be released to him for attorney fees

. The trial court set
aside the r elease of judgment and allowed i ntervention, ordering the cash bond to be released to Larry Wri ght ( id at 84 ). Appellants filed Motion for New Trial and Notice of Appeal ( Cl. Rec. at 95, 93 ).7 ISSUES PRESE NTED

I. Whether the Court should set aside Judgment in this case due to post

judgment intervention.8 STATEME NT OF FACTS

After the appeal process, the trial court ruled in Cause Number 11,223
that the TLPOA Board of Directors were an invalid board of directors as of September 29, 2007, and that all actions taken by the TLPOA Board since that time were void ( Cl. Rec at 13, 15). This time period encompasses the
entire duration of this l awsuit. Appellants filed a motion and amended motions to release the cash bond that was tendered to the registry of the trial court for purpose of issuance of a Writ of Supersedeas on appeal ( id at 5, 10,
51 ). TLPOA released the Judgment in this case by bo ard resolution and an affidavit for Release of Judgment signed with authority by the association’s Treasurer ( id at 26, 28 ). Attorney Larry Wright petitioned the court to allow
post

- judgment inter vention, to set aside Release of Judgment, and release the cash bond in question to him

. Another affidavit for Release of Judgment was signed by the association President and filed ( id at 62 ). The trial court granted post

-

judgment intervention, set aside the Release of Jud gment, and ordered the cash bond to be released to Larry Wright ( id at 84 ).9 SUMMARY OF THE ARGUMENT

I. The Court should set aside judgment in this case due to post

- judgment
intervention.10 ARGUMENT

I.
THE COURT SHOULD SET ASIDE THE JUDGMENT I N THIS CASE DUE TO P OST

- JUDGMENT INTERVENTION The Court should set aside the Judgment in this case due to post

judgment intervention. Post

- judgment intervention may be brought only by a party who could have brought all or part of the same action in its own name, or, if the action had been brought against it (intervenor), the intervenor is not a proper party who would have been able to defeat recovery ( Guaranty Federal Savings Bank v. Horseshoe Operating 793 S.W.2d 652, at 657 (Tex 1990 )). Larry Wright i n this case wa s not a member of Tres Lagos Property Owners’ Association, Inc., during the time of this lawsuit
and therefore had no standing to bring the claims of this lawsuit against Plaintiffs or be sued by Plaintiffs as a member or representative of th e POA. Larry Wright could not have sued Plaintiffs for any claims in this lawsuit

. A Petition in Intervention filed post

- judgment may only be considered if the trial court sets aside the judgment, unless an exception applies ( First Alief Bank v.White , 6 82 S.W.2d 251, at 252 (Tex 1984)). A Petition in11

Intervention is too late unless a) intervenor does not attack the existing judgment but seeks to protect property interests under Civil Practice and Remedies Code Section 31.002, or b) intervenor is a subro gee whose interest is at first adequately represented by someone else who later abandoned the claim ( Texas Mutual Insurance Company v. Olivas , 251 S.W.3d 31, at 36 (Tex 2008)).

Civil Practice and Remedies Code Section 31.002 states that collection of judg ment through court proceedings by a judgment creditor only applies if the property cannot be readily attached or levied by way of ordinary legal process, or is not exempt from attachment, execution, or seizure. The attorney fees originally assessed by the Court in this case were attached to the Final Judgment and the Abstract of Judg ment filed in this

case. Furthermore, a money judgment is generally not exempt from attachment, execution, and/or seizure. The Judgment in this case was in favor of TLPOA, not Larry Wright. In that regard, Larry Wright has obtained a judgment against TLPOA for the entire amount of attorney fees assessed in this case ( 1 st Supp. Cl. Rec. ) , and intervention in this case is
i mproper and not permit t ed by law

. Therefore, Civil Practice and Remedies
Code Section 31.002 does not permit this exception.12 This case is not a lawsuit dealing with subrogation issues or any

subrogated rights. This lawsuit was between two parties, with no third

- party claims, no payment of damages by a third

- party, and therefore does not f all under the subrogee exception. No evidence of a subrogee has been submitted in this case, and, as this Writ of Supersedeas was secured by a cash bond held in the registry of the Court, no property interest of any kind
has been abandoned

. The cash bond held by the trial c ourt for Writ of Supersedeas cannot be held in constructive trust for Larry Wright because attorney fees are not part of the cash bond pursuant to Texas Rules of Appellate Procedure 24.2. According to Texas Rules of Appellate Procedure Section 24.2(a)(1), a bond for purposes of appeal shall include only compensatory damages, interest for the estimated duration of the appeal, and costs, not attorney fees. Therefore, attorney fees are not part of the cash bond tendered for Writ of Superse deas in this case, and cannot be considered held in constructive trust for attorney
fees.
Furthermore, Larry Wright testified at this hearing that he had not been paid anything toward attorney fees awarded in this case ( Ct. Rep. Vol. 1, p. 8 ). However, at the original trial, Larry Wright elicited testimony on13

direct examination that he had be en paid partial payments in this matter by TLPOA ( Ct. Rep. Vol. 2, p. 177, Motion for Declaratory Judgment and
Trial ). In respect to the trial court setting aside the release of judgment, no evidence was presented which would allow the trial court to ent er such judgment ( see Ct. Rep., Vol. 1 )

. The Court should set aside judgment in this case due to improper post

judgment intervention.14 PRAYER

Appellants respectfully pray the Court to set aside the Judgment in this case due to post

-

judgment intervention.15 APPENDIX16 Certificate of Service

I hereby certify that a true and correct copy of the above Appellants ’
Brief will be served the following individuals by Certified Mail, Return
Re ceipt Requested, within two (2) busine ss days of electronic filing and
acceptance on Jul y 6 , 2016

. Larry Wright Attorney at Law P.O. Box 144 Winnsboro, TX 75494 CRRR#70 12 3050 0000 6608 7854 Tres Lagos Property Owners’ Association, Inc. 153 Azalea Lane Mount Vernon, TX 75457 CRRR# 7 012 3050 0000 6608 7861 /s/ Gene Stump Gene Stump Certificate of Compliance I hereby certify, to the best of my ability, that this Petition fo r Writ of Mandamus contains 159 8 words.
/s/ Gene St ump Gene Stump