ACCEPTED

03-15-00039-CV

4804097

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/8/2015 10:57:45 AM

JEFFREY D. KYLE

CLERK

CAUSE NO. 03-15-00039-CV 

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT 

AUSTIN, TEXAS 

AVALON INVESTMENTS, LLC, 

Appellant, 

vs. 

JEAN PENICK SPILLER, 

Appellee. 

BRIEF FOR APPELLANT 

ORAL ARGUMENT REQUESTED 

Arthur G. Vega 

State Bar No. 20533600 

LAW OFFFICES OF ARTHUR G. VEGA 

419 S. Main, Suite 301 

San Antonio, Texas 78204 

Telephone No.: (210) 224-8888 

Fax No.: (210) 225-7751 

E-mail: artavega@yahoo.com 

ATTORNEY FOR APPELLANT 

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/8/2015 10:57:45 AM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL 

Plaintiff-Appellant 

A val on Investments, LLC 

Defendant-Appellee 

Jean Penick Spiller 

Counsel for Intervenors-Appellants 

Arthur G. Vega 

State Bar No. 20533600 

Law Offices of Arthur G. Vega 

419 S. Main, Suite 301 

San Antonio, Texas 78204 

Telephone No.: (210) 224-8888 

Fax No.: (210) 225-7751 

E-mail: artavega(cl)yahoo .co.m 

Counsel for Defendant-Appellee 

Andrew Oliver 

State Bar No. 24046556 

Oliver Law Office 

9951 Anderson Mill Road, Suite 201 

Austin, Texas 78750 

Telephone No.: (512) 233-1103 

Fax No.: (512) 551-0330 

E-mail: aoliver@oliverlawoffice.com 

1 
TABI.~E OF CONTENTS 

Page 

IDENTITY OF PARTIES AND COUNSEL.................................. 1 

TABLE OF C-ONTENTS ....................... .................... ... ...... ......... ... 11 

INDEX OF AUTHORITIES .......................................................... 111-1v 

STATEMENT OF THE CASE...................................................... 1-5 

ISSUES PRESENTED ........................ ............... .................. ...... ..... 5 

STATEMENT OF FACTS.............................................................. 5-6 

SUMMARY OF THE ARGUMENT ....... .............. ............ ...... ... ..... 6-8 

ARGUMENT.................................................................................. 8 

Issue No. 1 ............................................................................ 8-13 

CONCLUSION................................................................................ 13 

PRAYER.......................................................................................... 13 

CERTIFICATE OF SERVICE.......................................................... 14 

CERTIFICATE OF COMPLIANCE................................................. 15 

APPENDIX......................................................................................... 16 

11 
INDEX OF AUTHORITIES 

Cases 

Aston Meadows, LTD. v. Devon Energy Production 

Company, L.P., 359 S.W.3d 857,859 

(Tex App- Forth Worth, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 9, 10, 12 

Beaumont-Enterprise & Journal v. Smith, 687 S. W. 2d 729 

(Tex. 1985)............................................................. 7 

Beavers v. Darlin, 491 S.W. 2d. 711 (Tex. Civ. App.- Waco 1973, 

no writ).................................................................. 7 

City of Houston v. Clear Creek Basin Authority, 589 S.W. 2d 671, 

675-79 (Tex. 1979) . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9 

Evans v. Fort Worth Star Telegram, 548 S.W. 2d 819 (Tex. Ct. App.-

Ft. Worth 1977 writ refd n.r.e.)....................................... 7 

Great American R. Ins. Co. V. San Antonio Pl. Sup. Co. 391 S.W. 2d 

41 (Tex. 1965)............................. ... . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 

Hahn v. Love, 321 S.W.3d 517, 527 (Tex. App.-Houston [1st Dist] 

2009) . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10 

Herman v. Shell Oil Company, 93 S.W.3d 605, 608 (Tex. App.-

Houston [14th Dist] 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10, 11 

Noble Mortgage & Investments, LLC v. D 7 M Vision Investments, 

LLC, 340 S.W. 3d 65, 75, (Tex. App.-Houston [1st Dist] 2011) . . .. 9 

Sabine Pilot Service, Inc. v. Hauch 687 S.W.2d 733, 734 (Tex. 

1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . .. 7 

Swilley v. Hughes, 488 S. W. 2d 64 (Tex. 1972)............................. .. 7 

Travis City v. Pelzel & Assocs., 77 S. W. 3d 246 (Tex. 2002)............... 8 

111 
Tuggle v. Cooke, 277 S.W.2d 729, 732 (Civ. App.-Forth Worth, 

1955, ref. n.r.e.).. .. .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . .. . . . . . . . . 10 

United Blood Servs v. Longoria, 938 S. W. 2d 29, 30 (Tex. 1997).. .. . . . . . . . . 8 

Wilcox v. St. Mary's University, 531 S. W. 2d 589, 593 (Tex. 1975)......... 7 

Rules 

Section 13.002, Texas Property Code 7, 9,11 

IV 
CAUSE NO. 03-15-00039-CV 

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT 

AUSTIN, TEXAS 

AVALON INVESTMENTS, LLC, 

Appellant, 

vs. 

JEAN PENICK SPILLER, 

Appellee. 

BRIEF FOR APPELLANT 

TO THE HONORABLE THIRD COURT OF APPEALS: 

Appellant, AVALON INVESTMENTS, LLC (hereinafter referred to as 

"Appellant") files the following brief in support of its appeal of the judge's 

judgment and would respectfully show this Honorable Court as follows: 

STATEMENT OF THE CASE 

This is an appeal from a summary judgment rendered by Judge Richard 

Bruce Boyer granting Appellee's traditional motion for partial summary 

judgment against Appellant. (CR, P. 138-139). This is an alleged wrongful/ illegal 

foreclosure by Defendant, John Kimbro in Cause No. 08-0128. (CR, P. 4-35). On 

1 
October 27, 2010, Appellant filed its Fourth Amended Original Petition adding 

Appellee as a defendant. (CR, P. 4-35). 

The Appellant, AVALON INVESTMENTS, LLC 1s a California limited 

liability company doing business in Texas. (CR P. 4). On November 17, 2006, 

the Appellant purchased 30.485 acres of land out of the M.B. SURVEY and 

R.T. HUGHES SURVEY located in Hays County, Texas (hereinafter referred to as 

the "Property"). (CR P. 5). The consideration for the sale of the Property was a 

promissory note for $360,000.00 dated November 15, 2006 (hereinafter referred 

to as the "Promissory Note") and secured by a Deed of Trust (hereinafter referred 

to as the "Deed of Trust"). (CR P. 5). 

On December 22, 2006, Defendant, John Kimbro in Cause No. 08-0128 

(hereinafter referred to as "Defendant, Kimbro") executed a Collateral Transfer of 

Note (Security Agreement) thereby transferring, assigning and conveying unto 

JHX2, Ltd, a Texas Limited Partnership (hereinafter referred to as "JHX2, Ltd.") 

said Promissory Note together with all renewals, extensions and rearrangements 

thereof, and all liens, rights, titles, equities and interests securing said Promissory 

Note. (CR P. 16-25). Said Collateral Transfer of Note (Security Agreement) was 

filed and recorded with the Hays County Deed Records on December 27, 2006. 

(CRP. 25). 

2 
On or about December 3, 2007, Defendant, Kimbro instructed and directed 

Joseph J. Malone, Substitute Trustee to commence and file a Notice of Foreclosure 

Sale on the Property at the Hays County Courthouse. Such Notice of Foreclosure 

was filed and posted at the Hays County Courthouse on December 3, 2007. (CR P. 

27-32). The foreclosure of the Property to occur on January 1, 2008 at the steps 

of the Hays County Courthouse. (CR P. 6, 27). 

The consent mandated under the Collateral Transfer of Note was not 

obtained by Defendant, Kimbro prior to the posting of the Property for 

foreclosure on December 3, 2007. In fact, such consent was given through a 

Consent of Secured Party dated December 31, 2007 and signed by John C. 

Hambrick, as Sole General Partner of JHX2 GP, Inc. (CR P. 119-124). Said 

Consent of Secured Party was filed and recorded with the Hays County Deed 

Records. (CR P. 119-124). Additionally, in an attempt to rectify the legal 

problem created for the January 1, 2008 foreclosure, on December 31, 2007, John 

C. Hambrick, as Sole General Partner of JHX2 GP, Inc. signed a Release of 

Collateral Transfer of Note. (CR P. 126-131). Said Release of Collateral 

Transfer of Note was also filed and recorded with the Hays County Deed 

Records. (CR P. 126-131). 

On January 1, 2008, Defendant, Kimbro purchased the Property at the 

foreclosure sale. (CR P. 34-35). Defendant, Kimbro acquired title to the property 

3 
through a Substitute Trustee's Deed dated January 2, 2008. (CR P. 34-35). Said 

Substitute Trustee's Deed was filed and recorded with the Hays County Deed 

Records. (CR P. 34-35). 

On January 9, 2008, Defendant, Kimbro sold and Appellee, Spiller 

purchased an undivided one-half (1/2) interest in the Property for $ 400,000.00. 

(CR P. 38). On January 9, 2008, Defendant, Spiller became and had an 

ownership interest in the Property. Defendant, Spiller's title ownership interest 

derives from the title interest Defendant, Kimbro obtained from the foregoing 

foreclosure sale. (CR P. 34-35). 

On January 8, 2013, Appellee filed her First Amended Original Answer 

denying the allegations and raising an affirmative defense. (CR, P. 36-37). On July 

31, 2013, Appellee filed her Traditional Motion for Partial Summary Judgment 

on Her Bona Fide Purchaser Affirmative Defense against Appellant. (CR, P. 38-

67). On September 12, 2013, Appellant filed its Response to Appellee's 

Traditional Motion for Partial Summary Judgment on Her Bona Fide Purchaser 

Affirmative Defense. (CR, P. 68-131). On September 19, 2013, Appellee filed 

her reply to Appellant's Response to Appellee's motion for partial summary 

judgment. (CR, P. 132-135). On November 6, 2013, a hearing was held on 

Appellee's motion for partial summary judgment at which time Judge Richard B. 

Boyer granted said partial motion for summary judgment. (CR, P. 138-139). On 

4 
August 13, 2014, Judge Richard B. Boyer signed the Order granting Appellee's 

partial motion for summary judgment. (CR, P. 138-139). On September 17, 2014, 

Appellee filed her Motion to Sever. (CR, P. 140-142). On October 23, 2014, 

Judge Richard B. Boyer signed an Order granting Appellee's Motion to Sever. 

(CR, P. 143-144). On November 20, 2014, Appellant filed its motion for new 

trial. (CR, P. 145-156). Appellants' motion for new trial was overruled by 

operation of law on January 6, 2015. On January 20, 2015, Appellant filed its 

Notice of Appeal with the Hays County District Clerk (CR, P. 157-158). 

ISSUES PRESENTED 

1. The District Court erred in granting Appellee's Traditional Motion for Partial 

Summary Judgment on Her Bona Fide Purchaser Affirmative Defense. 

STATEMENT OF FACTS 

On January 9, 2008, Appellee, Spiller purchased an undivided one-half 

(1/2) interest in the Property for $ 400,000.00. (CR P. 38). On January 9, 2008, 

Defendant, Spiller became and had an ownership interest in the Property. 

Defendant, Spiller's title ownership interest derives from the title interest 

Defendant, Kimbro obtained from the foregoing foreclosure sale. (CR P. 34-35). 

On January 8, 2013, Appellee filed her First Amended Original Answer 

denying the allegations and raising an affirmative defense. (CR, P. 36-37). On July 

31, 2013, Appellee filed her Traditional Motion for Partial Summary Judgment 

5 
on Her Bona Fide Purchaser Affirmative Defense against Appellant. (CR, P. 38-

67). On September 12, 2013, Appellant filed its Response to Appellee's 

Traditional Motion for Partial Summary Judgment on Her Bona Fide Purchaser 

Affirmative Defense. (CR, P. 68-131). On September 19, 2013, Appellee filed 

her reply to Appellant's Response to Appellee's motion for partial summary 

judgment. (CR, P. 132-135). On November 6, 2013, a hearing was held on 

Appellee's motion for partial summary judgment at which time Judge Richard B. 

Boyer granted said partial motion for summary judgment. (CR, P. 138-139). On 

August 13, 2014, Judge Richard B. Boyer signed the Order granting Appellee's 

partial motion for summary judgment. (CR, P. 138-139). On September 17, 2014, 

Appellee filed her Motion to Sever. (CR, P. 140-142). On October 23, 2014, 

Judge Richard B. Boyer signed an Order granting Appellee's Motion to Sever. 

(CR, P. 143-144). On November 20, 2014, Appellant filed its motion for new 

trial. (CR, P. 145-156). Appellants' motion for new trial was overruled by 

operation of law on January 6, 2015. On January 20, 2015, Appellant filed its 

Notice of Appeal with the Hays County District Clerk (CR, P. 157-158). 

SUMMARY OF THE ARGUMENT 

The general rule of law in Texas is that a summary judgment is sustainable 

only if the movant has conclusively established that there is no genuine issue as to 

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

6 
Sabine Pilot Service, Inc. v. Hauch, 687 S.W. 2d 733, 734 (Tex. 1985); City of 

Houston v. Clear Creek Basin Authority, 589 S.W. 2d 671, 675-79 (Tex. 1979); 

Swilley v. Hughes, 488 S.W. 2d 64 (Tex. 1972). Furthermore, all doubts as to the 

existence of a genuine issue as to a material fact must be resolved against the 

movant for summary judgment to be granted. Evans v. Forth Worth Star 

Telegram, 548 S.W. 2d 819 (Tex. Ct. App. --Ft.Worth 1977 writ refd .n.r.e.); 

Great American R. Ins. Co. V. San Antonio Pl. Sup. Co. 391 S.W.2d 41 (Tex. 

1965); and Beavers v. Darlin, 491 S.W. 2d. 711 (Tex. Civ. App. --Waco 1973, no 

writ), and every reasonable inference must be made in favor of the non-moving 

party. Beaumont-Enterprise & Journal v. Smith, 687 S.W.2d 729 (Tex. 1985); 

and Wilcox v. St. Mary's University, 531 S.W. 2d 589, 593 (Tex. 1975). 

Moreover, the courts are to accept as true, the evidence which tends to support the 

position of the non-movant. Wilcox, supra at 593; Great American R. Ins. Co., 

supra at 47. 

The Texas Property Code provides that an "instrument that is properly 

recorded in the proper county is . . . notice to all persons of the existence of the 

instrument." Tex. Prop. Code Sec. 13.002. 

The trial judge erred in granting Appellee's traditional motion for partial 

summary judgment since there was an issue whether Appellee had constructive 

notice of records that raised a question as to the legality of the foreclosure of the 

7 
property conducted by Appellee's seller and thus, whether Appellee is a bona fide 

purchaser. 

ARGUMENT 

Issue No. 1 

The District Court erred in granting Appellee's Traditional Motion for 

Partial Summary Judgment on Her Bona Fide Purchaser Affirmative Defense. 

Summary judgment evidence must be admissible under the rules of 

evidence. United Blood Servs v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). That is, 

facts must be proved by the same type of evidence that would be introduced at 

trial, except that the facts are proven by affidavits, depositions, interrogatories, and 

other discovery, rather than by oral testimony. Travis Cty v. Pelzel & Assocs., 77 

S.W.3d 246 (Tex. 2002). 

The motion for summary judgment submitted by Appellee was a traditional 

motion for partial summary judgment (CR, P. 38-67). The only evidence 

Appellee submitted in support of her motion for partial summary judgment is her 

deposition. (CR, P. 42-67). In her deposition, Appellee essentially states that she 

did not personally conduct any investigation as to the title of the property she was 

purchasing. (CR, P. 49). Appellee did however purchase title insurance on the 

property. (CR, P. 54). 

The trial court may not grant a summary judgment when the movant's 

summary judgment evidence is legally insufficient. City of Houston v. Clear 

8 
Creek Basin Authority, 659 S.W. 2nd 671, 678 (Tex. 1979). Moreover, the Texas 

Supreme Court held in City of Houston v. Clear Creek Basin Authority: 

"Summary judgments must stand on their own merits, and the nonmovant's failure to answer or respond cannot supply by default the 

summary judgment proof necessary to establish the movant's right." 

at P. 678. 

A bona fide purchaser is one who acquires property in good faith, for value, 

and without notice, constructive or actual, of any third party interest or claim. 

Noble Mortgage & Investments, LLC v. D 7 M Vision Investments, LLC, 340 

S.W. 3d 65, 75, (Tex. App.-Houston [1st Dist] 2011). Notice sufficient to defeat a 

bona fide purchaser status may be actual or constructive. Noble, 340 S.W.3d at P. 

76. Actual notice rests on personal information or knowledge. Noble, 340 S.W.3d 

at P. 76. Constructive notice is notice the law imputes to a person not having 

personal information or knowledge. Noble, 340 S.W.3d at P. 76. Constructive 

notice creates an irrebuttable presumption of actual notice in some circumstances. 

Noble, 340 S.W.3d at P. 76. The Texas Property Code provides that an 

"instrument that is properly recorded in the proper county is ... notice to all 

persons of the existence of the instrument." Tex. Prop. Code Sec. 13 .002; Aston 

Meadows, LTD. v. Devon Energy Production Company, L.P., 359 S.W.3d 

857,859 ( Tex App- Forth Worth, 2012). Recorded instruments in a grantee's 

chain of title generally establish an irrebuttable presumption of notice. Aston, 359 

S.W.3d at P. 859. Courts have held that real property records can constitute 

9 
constructive notice. Aston, 359 S.W.3d at P. 859. The court in Hahn v. Love, 321 

S.W.3d 517, 527 (Tex. App.-Houston [1st Dist] 2009) stated: 

"A transferee who takes property with knowledge of such facts as would 

excite the suspicions of a person of ordinary prudence and put him on 

inquiry of the fraudulent nature of an alleged transfer does not take the 

property in good faith and is not a bona fide purchaser." at P. 527. 

The general rule of law is that a purchaser is bound by every recital, reference 

and reservation contained in or fairly disclosed by any instrument which forms an 

essential link in the chain of title under which he claims. Aston, 359 S.W.3d at P. 

859. Moreover, purchasers are charged with knowledge of the provisions of 

recorded instruments that form an essential link in their chain of ownership. 

Herman v. Shell Oil Company, 93 S.W.3d 605, 608 (Tex. App.-Houston [14th 

Dist] 2002). When a fact is recited in a recorded instrument which is sufficient to 

put a prudent person on inquiry, the purchaser is charged with notice of facts 

which might have been ascertained by a proper inquiry. Tuggle v. Cooke, 277 

S.W.2d 729, 732 (Civ. App.-Forth Worth, 1955, ref. n.r.e.). 

The question of whether a party has notice is a fact question for the trier of 

fact to decide; it becomes a question of law only when there is no room for 

ordinary minds to differ as to the proper conclusion to be drawn from the evidence. 

Hahn, 321 S.W.3d at P. 527. The general rule of law is that "fraudulent transfer 

and bona fide purchaser status are generally questions for the trier of fact that are 

inappropriate for summary judgment." Hahn, 321 S.W.3d at P. 527. 

10 
The record establishes that prior to Appellee's purchased of her one-half 

(1/2) undivided interest in the property, that the following documents were filed 

prior to January 9, 2008 and were of record in the Hays County Deed Records: 

the Collateral Transfer of Note (Security Agreement) (CR P. 16-25); Consent of 

Secured Party (CR P. 119-124); Release of Collateral Transfer of Note (CR P. 

126-131); and Substitute Trustee's Deed. (CR P. 34-35). The foregoing 

recorded documents clearly form an essential link in Appellee's chain of 

ownership. Herman, 93 S.W.3d at P. 608.The foregoing recorded documents 

clearly raised and put Appellee on notice of questions and suspicions regarding 

the legality of the foreclosure where Appellee's seller, John Kimbro acquired and 

purchased the property. (CR P. 34-35). It is clear that a proper investigation of 

the Hays County Deed Records would have disclosed the aforementioned four 

( 4) documents filed of record and hence, raise "the suspicions of a person of 

ordinary prudence" regarding the title and ownership of the property being sold by 

John Kimbro. Furthermore, since the Collateral Transfer of Note (Security 

Agreement) (CR P. 16-25); Consent of Secured Party (CR P. 119-124); Release 

of Collateral Transfer of Note (CR P. 126-131); and Substitute Trustee's Deed 

(CR P. 34-35) were properly recorded in Hays County Deed Records, it is notice 

to all persons including Appellee of the existence of said instruments. Sec. 

13.002, Tex. Prop. Code. It has been held that "Recorded instruments in a 

11 
grantee's chain of title generally establish an irrebuttable presumption of notice." 

Aston, 359 S.W.3d at P. 859. 

In reference to whether Appellee had notice of Appellant's interest and/ or 

claim to the property, the Substitute Trustee's Deed makes reference to Appellant 

as the "Grantor under the Deed of Trust dated November 15, 2007". (CR P. 34-

3 5). Therefore, should an issue arise as to the legality of the foreclosure, 

Appellant would be the party to raise such an issue and challenge such foreclosure 

through a lawsuit. 

Notwithstanding the foregoing four ( 4) recorded documents, clearly the 

Collateral Transfer of Note (Security Agreement) which was filed and recorded 

with the Hays County Deed Records on December 27, 2006 (CR P. 16-25) would 

raise "suspicions" of John Kimbro's ownership and right to sell and transfer title 

to the property. Said Collateral Transfer of Note (Security Agreement) was filed 

more than two (2) years prior to Appellee's purchase on January 9, 2008 of her 

undivided one-half (1/2) interest in the property. (CR P. 38). Pursuant to the 

Collateral Transfer of Note (Security Agreement)- "The Debtor has GRANTED, 

SOLD and CONVEYED and by these presents does GRANT, SELL and 

CONVEY all of Debtor's present and hereafter acquired right, title and interest, in 

and to the Land, unto John C. Hambrick, Trustee for the benefit of the Secured 

12 
Party ... " (CR P. 20). The Debtor as defined in said Collateral Transfer of Note 

(Security Agreement) is John Kimbro (CR P. 16), Appellee's seller. 

It is evident that Appellee submitted no evidence through any 

documentation to establish that as a matter of law she was entitled to a 

summary judgment. Moreover, Appellee's only summary judgment evidence, 

i.e., her deposition, is legally insufficient to support the granting of Appellee's 

motion for partial summary judgment. 

CONCLUSION 

The aforementioned authorities, arguments and record before the Court of 

Appeals clearly establish that the trial judge erred in granting Appellee's 

traditional motion for partial summary judgment since the summary judgment 

evidence was legally insufficient to support the granting of the motion for partial 

summary judgment. Accordingly, the summary judgment rendered in the case at 

bar should be reversed and set aside, and a new trial granted. 

PRAYER 

Appellant respectfully prays that this Court reverse and set aside the 

summary judgment entered by the trial judge, and render an order remanding this 

case to the trial court for a new trial. 

13 
Respectfully submitted, 

LAW OFFICES OF ARTHUR G. VEGA 

419 S. Main, Suite 301 

San Antonio, Texas 78204 

Telephone: (21 0) 224-8888 

Facsimile: (210) 225-7751 

E-mail: artavega@yahoo.com 

Is/ Arthur G. Vega 

ARTHUR G. VEGA 

State Bar No. 20533600 

ATTORNEY FOR APPELLANT 

CERTIFICATE OF SERVICE 

I hereby certify that on this the 7th day of April, 2015, I electronically 

filed the foregoing Appellant's Brief with the Clerk of the Court using the 

CM/ECF filing system which will send notification of such filing to the Attorney 

for Appellee, Mr. Andrew Oliver, OLIVER LAW OFFICE, 9951 Anderson Mill 

Road, Suite 201, Austin, Texas 78750 

Is/ Arthur G. Vega 

ARTHURG. VEGA 

14 
CERTIFICATE OF COMPLIANCE 

In pursuance to Rule 9 .4(i)(3 ), Texas Rules of Appellate Procedure, I hereby 

certify that this brief contains 3,044 words. 

/s/ Arthur G. Vega 

ARTHUR G. VEGA 

15 
APPENDIX 

TABLE OF CONTENTS 

Order Granting Defendant Jean Penick Spiller's 

Traditional Motion for Partial Summary Judgment ................. 1-2 

Order Granting Defendant Jean Penick Spiller's 

Motion to Sever . . . . . . .. ......... .. ............. ... ....................... ....... .. 3-4 

16 
FI!.Eoaf 

CAUSE NO. 08-0128 

AVALON INVESTMENTS, LLC 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

14 AUG 14 PH 3: 38 

IN THE DIS~T ~OURT C..t·:., f ._ ... ·:..:; . .r.1f~ 

c•t·r-,( -.-- .... ! ,-:--,.< u 

vs. 2o1rh Juoicfxrb'~~~futT--;·;:·~~/ !.s 

JOHN KIMBRO, 

Defendant HAYS COUNTY, TEXAS 

ORDER GRANTING DEFENDANT JEAN PENICK SPILLER'S 

TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT 

On November 6, 2013. the Court considered Defendant Jean Penick Spiller's Traditional 

Motion for Partial Summary Judgment On Her Bona Fide Purchaser Affirmative Defense. 

Pia inti ff Avalon Investments, LLC and Defendant Jean Penick Spiller appeared by and through 

their attorneys and announced ready. Having considered the Motion, Plaintiffs Response 

thereto. Defendant Jean Penick Spiller's Reply to Plaintiff's Summary Judgment Response, the 

arguments of counsel, and the pleadings and other matters on file in this lawsuit, the Court is of 

the opinion that Defendant Jean Penick Spiller's Traditional Motion for Partial Summary 

Judgment On Her Bona Fide Purchaser Affirmative Defense should be in all respects granted. 

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiff Avalon 

lnvestments, LLC does hereby take nothing on Plaintiffs claims in this lawsuit against 

Defendant Jean Penick Spiller or her interest in the property described in that certain General 

Warranty Deed tiled for record in Volume 3317 at Page 19 of the Official Public Records of 

Hays County. Texas ("~Property"). 

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the Notice of Lis 

Pendens filed by Plaintiff under Document Number 8000 J 620 and in Volume 3318 at page 819 

of the Official Public Records of Hays County, Texas is of no further force and effect as to the 

interest of Defendant Jean Penick Spiller in the Property; and said Notice of Lis Pendens is still 

Page 1 

000138 *' 
• 

111 !'ull liu\.:l' and eff"t:rl ciS Ill ;my right rille. or inl(~fl!St of IJ\.~fl~IHJanl. John Kimhm in the 

SICiNED this t_j_/1,y.,r£b-~ 2014. 

SI!BMI rrED BY: 

/ j j / l ,I ' 

,. ~: - --- ~· 

1- I 1/:.--

~-----·- .. --- ··---· .'\ndn.·w ()liv~r 

Slak Bar No. 240c.l6556 

Arronwy fnr Dl~fi:~ndant Jean Pcnkk Spiller 

· .:\PPR(JVI·:I> AS TO 

H HU\-1, 0 .\J I Y In .. : 

Stal\' 

;~~~~6 Rrr No. 205) )(>00 

Allonu:y l()r Plaintiff 

Page 2 

000139 
CAUSE NO. 08-0128 

FILE:)~ 14 OCT 2 3 AH II: 18 ',J 

AVALON INVESTMENTS, LLC 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

TN THE ~~~T c.?~_RI: ~ 

l/ 

r. ... ·.. .:- l;_~-~· : v 

vs. 2o1th Ju~l~l·n1st~ttfAS 

JOHN KIMBRO, 

Defendant HAYS COUNTY, TEXAS 

ORDER GRANTING DEFENDANT JEAN PENICK SPILLER'S MOTION TO SEVER 

On this day the Court considered Defendant Jean Penick Spiller·s Motion to Sever. 

Having considered said Motion, the pleadings, and other matters on file in this lawsuit. as ·well as 

the arguments of counsel, if any, the Court is of the opinion that the Motion should be in all 

respects granted. 

IT IS THEREFORE ORDERED that the claims by and between Plaintiffs Avalon 

Investments, LLC, and Defendant Jean Penick Spiller shall be severed into a separate cause and 

that the Hays County District Court shall assign the following cause number to the severed 

cause: (hereinafter referred to as the ··severed 

Cause''). 

IT IS FURTHER ORDERED that the Hays County District Court shall file copies of the 

following items in this cause in the Severed Cause: 

I. Plaintiffs Fourth Amended Original Petition filed on October 27, 2010. 

2. Defendant Jean Penick Spiller's First Amended Original Answer filed on January 

8, 2013. 

3. Defendant Jean Penick Spiller's Traditional Motion for Partial Summary 

Judgment on Her Bona Fide Purchaser Affirmative Defense filed on or about July 31,2013. 

4. Plaintiffs Response to Defendant Jean Penick Spiller's Traditional Motion for 

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Partial Summary Judgment on Her Bona Fide Purchaser Affinnative Defense filed on or about 

September 12,2013. 

5. Defendant Jean Penick Spiller's Reply to Plaintiffs Summary Judgment 

Response filed on or about September 19, 2013. 

6. Letter from Arthur Vega to the Court dated November 13, 20 I 3. 

7. Letter from Andrew Oliver to the Court dated November 18, 2013. 

8. Letter from Court dated April30, 2014. 

9. Order Granting Defendant Jean Penick Spiller's Traditional Motion for Partial 

Summary Judgment filed on August 14, 2014. 

10. Defendant Jean Penick Spiller's Motion to Sever filed on September 17,2014. 

11. This Order Granting Defendant Jean Penick Spiller's Motion to Sever. 

IT IS FURTHER ORDERED that upon being filed in the Severed Cause, the Order 

Granting Defendant Jean Penick Spiller's Traditional Motion for Partial Summary Judgment 

shall be treated as a final judgment for all purposes. 

SIGNED this~ day of~ , 2014. 

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