CAUSE NO. 03-14-00463-CV 

IN THE 

THIRD COURT OF APPEALS 

AUSTIN, TEXAS 

DON TITEL AND CAROL TITEL 

Appellants

VS. 

MORRIS MELCHOR AND LISA MELCHOR 

Appellees

From the County Court at Law No. 2, Cause # C1-CV14-004232 

of Travis County, Texas 

the Honorable David Phillips presiding 

BRIEF OF APPELLEES 

 Jay P. Lea 

State Bar No. 24062843 

jlea@namanhowell.com 

NAMAN, HOWELL, SMITH & LEE, PLLC 

8310 N. Capital of Texas Highway, 

Suite 490 

Austin, Texas 78731 

(512) 474-1901 

FAX (512) 474-1901 

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-14-00463-CV

4851573

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/10/2015 4:36:35 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/10/2015 4:36:35 PM JEFFREY D. KYLE Clerk
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NAMES OF ALL PARTIES AND COUNSEL

Appellants: Don & Carol Titel 

Counsel for Appellants: Paul C. Velte, IV 

State Bar No. 20541700 

PAUL C. VELTE, IV, ATTORNEY & COUNSELOR

109 E. Hopkins St. 

Suite 204 

San Marcos, Texas 78666 

Telephone: (512) 353-2299 

Facsimile (512) 476-9504 

Email: Velte@PTexans.com 

Appellees: Morris & Lisa Melchor 

Counsel for Appellees: Jay P. Lea 

 State Bar No. 24062843 

 NAMAN, HOWELL, SMITH & LEE, PLLC 

 8310 N. Capital of Texas Hwy. 

Suite 490 

 Austin, Texas 78731 

 Telephone (512) 479-0300 

 Facsimile (512) 474-1901 

 Email: JLea@NamanHowell.com

 
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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii 

TABLE OF CONTENTS ............................................................................... iii 

INDEX OF AUTHORITIES .......................................................................... iv 

STATEMENT OF THE CASE ...................................................................... vi 

ISSUES PRESENTED .................................................................................. vii 

1. Did the Appellees have a duty to control the actions of minor 

children who were not in their legal custody or actual care? ............ vii 

2. Did the Appellees have a duty to control Mandy Edwards’ 

and/or Jeremy Melchor’s supervision or discipline of their 

minor children? .................................................................................. vii 

3. Does Texas acknowledge a claim for negligent entrustment of 

real property? ...................................................................................... vii 

4. Does Section 302 of the Restatement of Torts (Second) provide 

an independent basis for establishing a duty of care when other 

law specifically denies the duty? ....................................................... vii 

STATEMENT OF FACTS ............................................................................. 1 

SUMMARY OF ARGUMENT ...................................................................... 3 

ARGUMENT & AUTHORITIES ON ALL ISSUES .................................... 6 

CONCLUSION AND PRAYER .................................................................. 17 

CERTIFICATE OF COMPLIANCE ............................................................ 18 

CERTIFICATE OF SERVICE ..................................................................... 18 

 
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INDEX OF AUTHORITIES

CASES 

City of Houston v. Clear Creek Basin Auth., 

589 S.W.2d 671(Tex. 1979) ............................................................................ 3 

Joe v. Two Thirty-Nine Joint Venture, 

145 S.W.3d 150, 156 (Tex. 2004) ................................................................... 3 

Nixon v. Mr. Prop. Mgmt. Co., 

690 S.W.2d 546, 548 (Tex. 1985) ................................................................... 4 

S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) ................ 4 

D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) ........................... 4 

Chon Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005) .................................... 4 

El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) .......................... 4 

Way v. Boy Scouts of Am., 856 S.W.2d 230, 233 

(Tex. App.—Dallas 1993, writ denied) .......................................................... 4 

Providence Health Ctr. v. Dowell, 262 S.W.3d 324 (Tex. 2008) ................... 6 

Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) ............................... 6 

Carter v. Abbyad, 299 S.W.3d 892 (Tex. App.—Austin 2009, no pet.) ........ 6 

Greater Houston Transp. Co. v. Phillips, 

801 S.W.2d 523 (Tex. 1990) ..................................................................... 6, 15 

 

In re Martin, 147 S.W.3d 453 

(Tex. App.— Beaumont 2003, pet. denied) .................................................... 7 

McCullough v. Godwin, 

214 S.W.3d 793 (Tex. App.—Tyler 2007, no pet.) ........................................ 7 

St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) .................................. 9 
~ v ~

Scurlock v. Pennell, 177 S.W.3d 222 

(Tex. App.—Houston [1st Dist.] 2005, no pet.) ........................................... 10 

Bicknell v. Lloyd, 635 S.W.2d 150 

(Tex. App.—Houston [1st Dist.] 1982, no writ) ........................................... 13 

STATUTES & RULES 

TEX. R. CIV. P. 166a(c) .................................................................................. 4 

Tex. Fam. Code § 41.001 ................................................................................ 6 

Tex. Fam. Code § 101.001 .............................................................................. 7

TREATISES 

2 Restatement of Torts 2d, § 316 (1965) ........................................................ 8 

2 Restatement of Torts 2d, § 302 (1965) ....................................................... 12

 
~ vi ~

STATEMENT OF THE CASE 

 This case arises out of damages caused by a fire allegedly started by a minor 

child, who was allegedly accompanied by another minor child, 

 The fire spread from to the Don and Carol Titel’s (the 

Appellants) real property allegedly causing damages to their property. The 

Appellants sued: 

1. Mandy Edwards ( mother); 

 

2. Jeremy Melchor ( father); and 

3. The Appellees, Morris and Lisa Melchor (owners of the real property on 

which Jeremy Melchor and Mandy Edwards resided. Morris and Lisa 

Melchor are the parents of Jeremy Melchor and the grandparents of 

 

 Appellants’ Third Amended Petition1

 complains generally that Appellees 

were negligent because (1) they failed to control the individuals on the property 

and (2) allowed their adult son, Jeremy, to possess the land and live there with his 

children which created a dangerous situation. 

 The trial court granted Appellees’ traditional motion for summary judgment2

which argued that Appellees do not owe a duty to Appellants as a matter of law. 

 Appellants now challenge the trial court’s order granting summary judgment 

as to Appellees. 

 

1

 Appellants Third Amended Petition was filed in response to Defendants Motion for Summary 

Judgment and was the live pleading at the time the Motion for Summary Judgment was gratned. 

2

 Appellees and Jeremy Melchor all moved for summary judgment. Jeremy Melchor’s motion 

was denied while Appellees’ motion was granted. 
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ISSUES PRESENTED3

Issue No. 1 

Did the Appellees have a duty to control the actions of minor children who were 

not in their legal custody or actual care? 

Issue No. 2 

Did the Appellees have a duty to control Mandy Edwards’ and/or Jeremy 

Melchor’s supervision or discipline of their minor children?

Issue No. 3 

Does Texas acknowledge a claim for negligent entrustment of real property? 

Issue No. 4 

Does Section 302 of the Restatement of Torts (Second) provide an independent 

basis for establishing a duty of care when other law specifically denies the duty? 

 

 

3

 Appellants’ brief identifies the following issue for this courts consideration: “Grant of 

Summary Judgment was Improper.” Appellees have attempted to characterize Appellants 

arguments against summary judgment as “issues” herein. 
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STATEMENT OF THE FACTS

Appellees, Morris and Lisa Melchor are the owners of rural property located 

at 693 Pickett Lane, Liberty Hill, Texas (the “Property”).4

 The property is 

improved by a home.5

 At all relevant times the Property and home were generally 

occupied and under the control of Jeremy Melchor, Appellees’ adult son. 

Appellees do not live on the Property and it is uncontested that their son Jeremy 

Melchor was given full control of the Property.6

 

The summary judgment evidence in this case is clear – on July 11, 2011, 

 started the fire in question at a time when he was being supervised 

by his mother, Mandy Edwards.7

 On the day in question, Mandy Edwards, Jeremy 

Melchor’s girlfriend, was staying in the home and caring for the children while 

Jeremy was at work at Smokey Mo’s BBQ.8

 After the fire, 

admitted to his mother that he had learned to start fires in Boy Scouts and had 

started the fire in question.9 Appellants contend that the fire marshal report is 

 

4

See Plaintiffs’ Third Amended Petition at p.1-2 (CR 56-57). 

5

See Appellees Brief at p. 6-7. 

6

See Plaintiffs’ Third Amended Petition at p. 2 (CR 57) (stating that the property was turned 

over to Jeremy Melchor); See also Appellants Brief at p. 8 (stating that Jeremy Melchor had been 

given “all authority to control the conditions on [Appellees] property”). 

7

See Exhibit B to Defendants’ Motion for Summary Judgment, Oral Depo. of Mandy Edwards, 

at pp. 18 & 34 (CR 42 & 44). 

8

See id. at p. 18 (CR 42); see also Exhibit A to Defendants’ Motion for Summary Judgment, 

Oral Depo. of Jeremy Melchor, at p. 30 (CR 32). 

9

See Mandy Edwards Depo. at pp. 34 & 37 (CR 44-45). 
~ 2 ~

evidence that also started the fire in question.10 However, the 

report confirms that started the fire. Deputy Fire Marshal Daniel Berger's 

report states that “ stated he picked up some grass, lit it with the lighter, and 

then placed it on the ground.11 The fire quickly grew in size and the kids were 

unable to extinguish it.”12 According to the report, claimed that he and 

had lit grass on fire earlier, and that they had “put it out by stomping on 

it.”13 Yet, there is no evidence, nor do Appellants claim, that this earlier fire is 

responsible for destroying their property.14 Instead, the report indicates that it is 

the second fire, the fire admits he started, which grew out of 

control.15 The only reference to ’s potential involvement found in the 

report is a statement that told Deputy Berger that told him to start a 

fire.16 

Accordingly, the evidence is clear that actually started the 

fire. At the time of the incident in question, permanently resided 

with his biological father in Alabama and was temporarily visiting his mother.17 

 

10 See Plaintiffs’ Response to Defendants’ Motion for Summary Judgment at p. 2 (SCR 6). 

11 See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” 8th unmarked 

Exhibit at 12 (CR 32). 

12 Id. 

13 Id. 

14 Id. 

15 Id. 

16 Id. 

17 Exhibit A to Defendants’ Motion for Summary Judgment, Oral Depo. of Jeremy Melchor, at p. 

9, 15-16 (CR 26-27).
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Neither nor Mandy Edwards are related by blood or marriage to 

Appellees.18 Furthermore, the summary judgment evidence indicates that Jeremy 

Melchor never took responsibility for disciplining or supervising 19 

was in Jeremy Melchor’s legal custody and living 

permanently on the Property under the care of her father.20 However, like , 

was under the actual care of Mandy Edwards at the time of the 

incident in question.21 It is undisputed that Appellees were not at the Property on 

July 11, 2011 or leading up to the events in question and were not charged with the 

care of the children at the time.22 

SUMMARY OF THE ARGUMENT 

The function of a summary judgment is to eliminate patently unmeritorious 

claims and defenses, not to deprive litigants of the right to a jury trial. City of 

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979). A 

trial court's order granting a traditional motion for summary judgment is subject to 

de novo review. Joe v. Two Thirty-Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 

2004). The traditional summary judgment movant has the burden of showing that 

no genuine issue of material fact exists, and that it is entitled to judgment as a 

 

18 See id.; see also Mandy Edwards Depo. at pp. 8 & 19(CR 39 & 43). 

19 See Jeremy Melchor Depo. at pp. 16, 22, 23 (CR 27-29). 

20 See id. at pp. 13-14 (CR 24-25). 

21 See Mandy Edwards Depo at p. 18 (CR 42). 

22 See Third Amended Petition at pp. 2-3 (CR 57); see also Mandy Edwards Depo. at p. 16 (CR 

40) 
~ 4 ~

matter of law. TEX R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 

546, 548 (Tex. 1985). As defendants, the Melchors are entitled to summary 

judgment if they conclusively negated an essential element of Appellants’ 

negligence cause of action. S. W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 

(Tex. 2002). 

The Melchors sought a traditional summary judgment arguing that they 

owed no duty of care to their neighbors as a matter of law based on the facts as 

pled. A negligence cause of action requires a legal duty owed by one person to 

another, a breach of that duty, and damages proximately caused by the breach. D. 

Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) (citing El Chico Corp. v. 

Poole, 732 S.W.2d 306, 311 (Tex. 1987)). Duty, the threshold inquiry in any 

negligence case, is a question of law. Chon Tri v. J.T.T., 162 S.W.3d 552, 563 

(Tex. 2005); Poole, 732 S.W.2d at 311. A duty is a legal obligation that requires 

the defendant to conform to a certain standard of conduct. See Way v. Boy Scouts 

of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied). 

First the Appellants claim that the Melchors were negligent by failing to 

control the various individuals on their property. Because the law generally does 

not impose a duty to control the acts of another person to prevent harm to third 

parties absent certain special relationships or circumstances (and no such 

relationships or circumstances are present), the Melchors do not owe Appellees a 
~ 5 ~

duty to control Mandy Edwards or Jeremy 

Melchor. 

Next, Appellants claim that the Melchors were negligent in “creating a 

dangerous situation.” In support of this claim the Appellants generally allege that 

a dangerous situation was created when Appellants entrusted the Property to 

Jeremy Melchor because Jeremy Melchor had children. However, Texas has not 

extended claims for negligent entrustment to include entrustment of real property. 

Negligent entrustment only applies to chattels. Because Appellants only factual 

allegation is that the Property was negligently entrusted to Jeremy Melchor, the 

facts do not support a finding of a duty. Finally, Section 302 of the Second 

Restatement of Torts, upon which Appellants heavily rely, does not apply to the 

determination of a duty and has only been cited in one Texas case that involved 

significantly different facts than the case before the court. Section 302 and its 

companion sections 302A and 303B characterizes certain conduct that involves an 

unreasonable risk of harm as negligent conduct. However, using Section 302 as a 

front, Appellants would have the Court apply a very broad duty to landowners who 

allow children (or whose invitees allow children) on their property, because 

according to the arguments of Appellants, children are by nature uncontrollable by 

their parents and it is foreseeable that all children will start fires that damage third 

party properties. 
~ 6 ~

Because no duty exists as a matter of law, the Court should affirm the trial 

court’s summary judgment in favor of Appellees. 

ARGUMENT AND AUTHORITIES ON ALL ISSUES

A. Appellees do not owe a duty to third parties to control the actions of 

minor children who are not in their legal custody or actual care. 

Appellants contend in their Third Amended Petition that Appellees 

negligently exercised control over their invitees and persons permitted to visit and 

stay upon the premises. However, Texas law does not impose a duty to control the 

actions of invitees. Rather, Texas law generally imposes no duty to control the 

acts of another person to prevent harm to third parties absent certain special 

relationships or circumstances. Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 

331 (Tex. 2008); Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); 

Carter v. Abbyad, 299 S.W.3d 892, 895 (Tex. App.—Austin 2009, no pet.). 

Examples of relationships that have been recognized as giving rise to a duty to 

control include employer/employee, parent/child, and independent 

contractor/contractee. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 

525 (Tex. 1990). The relationship between an owner of real property and their 

tenants, invitees, and/or their tenant’s invitees have not been recognized in Texas 

as one of these special relationships; nor should they be. 

TEXAS FAMILY CODE § 41.001 states that a parent or other person who has 

the duty of control and reasonable discipline of a child is liable for the negligent 
~ 7 ~

conduct of the child if the conduct is reasonably attributable to the negligent failure 

of the parent. See TEX. FAM. CODE § 41.001. Furthermore, the Family Code 

provides detailed definitions construing the parent child relationship. See TEX.

FAM. CODE § 101.001, et seq. The law does not favor shifting the duties imposed 

by the Family Code from the parent to a non-parent absent unique circumstances, 

such as when the parent is absent and/or the non-parent has assumed custodial 

responsibilities. In re Martin, 147 S.W.3d 453, 456 (Tex. App.— Beaumont 2003, 

pet. denied); McCullough v. Godwin, 214 S.W.3d 793, 808 (Tex. App.—Tyler 

2007, no pet.)23. In this particular instance, the summary judgment evidence in this 

case is clear – started the fire in question at a time when he was 

being supervised by his mother, Mandy Edwards. Even if the Court were to 

determine that there is some evidence that started the fire in 

question, is not the child of Appellees nor had she been placed in 

their custodial care. Therefore, the duty to control the minor children at issue 

should not shift to Appellees. See id. Counsel for Appellees is aware of no Texas 

case that holds that mere ownership of the property upon which a child resides 

subjects a non-parent owner to custodial responsibility for a child. Such a holding 

would have unthinkable consequences to property owners across the state. 

 

23 The uncontroverted evidence is that Mandy Edwards assumed custodial care of the children in 

question the day of the fire. 
~ 8 ~

Accordingly, Appellees do not have a duty to control the actions of 

nor 

B. Did the Appellees have a duty to control Mandy Edwards’ and/or 

Jeremy Melchor’s supervision or discipline of their minor children? 

Appellants assert that Appellees “negligently failed to monitor and control 

the actions of their invitees.” To the extent this statement is referring to Jeremy 

Melchor or Mandy Edwards, Appellees do not have a duty (or a right) to control 

the manner in which Jeremy Melchor and Mandy Edwards – two adults – parent 

their children. Again, Texas law generally imposes no duty to control the acts of 

another person to prevent harm to third parties absent certain special relationships 

or circumstances. Providence Health Ctr., 262 S.W.3d at 331; Torrington, 46 

S.W.3d at 837; Carter, 299 S.W.3d at 895. While the parent-child relationship 

does place a duty on a parent to control a child, that duty only relates to minor 

children. See, e.g., Restatement (Second) of Torts § 316 (1965) (stating that "[a] 

parent is under a duty to exercise reasonable care so to control his minor child" 

(emphasis added).) No special relationship or circumstance exists that confers a 

duty on Appellees to control either of the adults in question. In an apparent 

attempt to create a duty where none exists, Appellants assert that Jeremy Melchor 

is an agent of, or in a joint enterprise with, Morris and Lisa Melchor for the 

purpose of raising children. Appellants argue that Jeremy is permitted to live on 
~ 9 ~

the property for the purpose of providing a stable home and wholesome 

environment for the Melchors’ grandchildren, and that this creates an agency or 

joint enterprise relationship for that purpose. Appellants make this argument 

without citing any case that extends agency or joint enterprise liability to the act of 

child rearing. 

First, Jeremy, can not be the Melchors’ agent for raising or supervising the 

children because the Melchors’ do not have the duty to raise or supervise the 

children in the first place. See discussion supra Part A. Secondly, the Melchors 

can not be in a joint enterprise with Jeremy for the purpose of raising children 

because a joint enterprise can not exist without an equal right to voice in the 

direction of the enterprise (in this case providing care/supervision for children). 

See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002) (listing the 

elements of joint enterprise). Appellants do not contend that the Melchors had 

(and they did not have) legal or actual custody of any of the children at issue. 

Therefore, they do not have an equal right to voice in the direction of parenting 

decisions. Accordingly, no joint enterprise to parent the children can exist. 

Therefore, it follows that Appellees do not owe Appellants a duty to control 

Jeremy Melchor or Mandy Edwards’ parenting decisions and can not be liable for 

Jeremy Melchor’s or Mandy Edwards’ alleged parenting failures under joint 

enterprise or agency theories. 
~ 10 ~

C. Texas does not Recognize a Claim for Negligent Entrustment of Real 

Property. 

Appellants’ Third Amended Petition alleges that Appellees were negligent 

by “acquiring land in an area at high risk for wildfire and turning it over to their 

‘never do well’ adult son, who in turn allowed young children to enter, reside, 

and wander unsupervised upon their land.”24 Therefore, Appellants’ primary 

complaint is that Appellees negligently entrusted the Property to Jeremy Melchor. 

However, no court in Texas has recognized a claim for negligent entrustment of 

real property. 

“Negligent entrustment in Texas applies only to chattels; Texas courts have 

not extended the concept to include the entrustment of real property.” Scurlock v. 

Pennell, 177 S.W.3d 222, 226 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A 

trial court’s granting of summary judgment on a claim for negligent entrustment of 

real property is proper. See id. at 227. 

Appellants’ brief requests the court to allow Appellants to maintain a cause 

of action against Appellees because “negligence may lie in the creation of a 

dangerous situation, although the final injury is activated by the conduct of a third 

person.”25 Assuming this principle were to be applied in this case, the first 

question should be “what conduct do Appellants allege created the dangerous 

 

24 See Third Amended Petition at pp. 2-3 (CR 57) (emphasis added). 

25 See Appellants’ Brief at pp. 19-20. 
~ 11 ~

situation.” While Appellees’ brief spends considerable amount of time concerning 

Jeremy’s conduct and various children’s conduct, the only indentified conduct of 

Appellees (other than the failure to control the previously discussed adults and 

children) is: 

Appellees were aware that more than their own grandchildren 

were being invited out to their land, but chose to exercise no 

oversight control, other than to delegate to their son all 

authority to control conditions on their property.

26

Accordingly, Appellants merely allege that Appellees should not have 

entrusted the property to Jeremy. In Scurlock v. Pennell a vacation home owner’s 

property caught on fire when an unknown third party broke into the uninhabited 

vacation home. See 177 S.W.3d 222, 223 (Tex. App.—Houston [1st Dist.] 2005, 

no pet.). Fire spread to the plaintiff’s neighboring property causing damages. See 

id. The neighbor sued the homeowner claiming (1) that the absent property owner 

negligently left the home unlocked and the utilities on, thereby inviting vagrants, 

and (2) that the absent home owner negligently entrusted the home to a third party 

who started the fire. See id. at 223-224. With respect to the first factual claim, the

court held that the property owner did not owe a duty to their neighbor to prevent 

unknown criminals from breaking into the house and starting fires because the 

event was unforeseeable. See id. at 223-225. With respect to the second claim, the 

 

26 See Appellants’ Brief at p. 8 (emphasis added). 
~ 12 ~

court summarily held that negligent entrustment only applies to chattels and not 

real property. See id. at 226. 

The real factual complaint in Appellants’ Third Amended Petition concerns 

third parties’ (the two adults and children) behavior not a condition of the property. 

The only activity Appellees are alleged to have engaged in is allowing Jeremy 

Melchor and his children to reside on the property. Therefore, the only alleged 

conduct associated with the creation of “a dangerous situation,” is Appellees 

entrustment of the property to Jeremy Melchor, who had children. Since negligent 

entrustment only applies to chattels, Appellees do not owe the Appellants a duty 

regarding the entrustment of Appellees real property. 

D. Section 302 of the Restatement of Torts (Second) does not provide an 

independent basis for establishing a duty of care because other law 

specifically denies a duty under the facts as pled and Section 302 not 

concerned with duty? 

Appellants argue that “Restatement of Torts (Second), Section 302, et seq., 

provides a basis for liability on facts like the one in this case.”27 However, the 

question in this case is limited to whether or not the Appellants owed a duty of care 

to the Appellees not to entrust property to Jeremy Melchor. 

Restatement of Torts (Second), Section 302, et seq. characterizes certain 

conduct that involves an unreasonable risk of harm as negligent conduct. See 2 

Restatement of Torts 2d, § 302, et seq. (1965). However, the first comment to 

 

27 Appellants’ Brief at p. 13. 
~ 13 ~

Section 302 is quite clear with respect to the sections use for purpose of 

establishing a duty: 

This Section is concerned only with the negligent character of the 

actor's conduct, and not with his duty to avoid the unreasonable risk. 

. . The duties of one who merely omits to act are more restricted, and 

in general are confined to situations where there is a special relation 

between the actor and the other which gives rise to the duty. . . If the 

actor is under no duty to the other to act, his failure to do so may be 

negligent conduct within the rule stated in this Section, but it does not 

subject him to liability, because of the absence of duty.

Restatement 2d of Torts § 302, comment a (emphasis added). Furthermore, the 

one case in the history of Texas jurisprudence that mentions this section of the 

Restatement addressed significantly different facts and did not recognize a duty 

similar to the duty Appellants request this Court to recognize. In Bicknell v. Lloyd, 

635 S.W.2d 150 (Tex. App.—Houston [1st Dist.] 1982, no writ), which Appellants 

cite in support of their arguments, a minor child was injured when another minor 

child misappropriated a three wheeled motorized cart from the Defendant. See id. 

at 151. In that case, the Defendant admitted that at the time the cart was stolen by 

children he had full control and responsibility for the cart. See id. at 152. On 

several occasions prior to the incident in that case, children had stolen the car from 

the Defendant when Defendant had left the key in the ignition. See id. 

Additionally, the cart was similar to an attractive nuisance in that children would 

crowd around the cart or climb on the cart when in use. See id. The Plaintiff and a 

third party testified that Defendant continued to leave the key in the ignition and 
~ 14 ~

left they key in the ignition when the injury occurred. See id. The court held that 

it was proper for a jury to consider the Defendant’s negligence and reasoned that: 

[a] party may be held responsible for a negligent omission 

which involves an unreasonable risk of harm to another through 

the foreseeable action of a third person. Restatement (Second) 

of Torts § 302, comment j (1965). Thus, even though an injury 

is the result of the unauthorized action of a third party, the party 

in possession or control may be liable if the character of the 

property is such that it "affords a peculiar temptation or

opportunity for intentional interference likely to cause harm." 

Restatement (Second) of Torts § 302B, comment e, section G, 

illustration 14 (1965). 

See id. (emphasis added). 

The facts before this Court are very different. In this case the “property” at 

issue (raw land) is not “such that it affords a peculiar temptation.” Additionally, 

and importantly, the Defendant in the Bicknell case was not the owner of the cart. 

See id. At trial, the Defendant testified that his stepdaughter was the owner of the 

cart yet he was in possession and control of the cart. See id. Accordingly, the 

person who was actively controlling the cart at the time of the incident was sued 

and not the owner of the cart. Therefore, Appellants are requesting this Court to 

extend the application of Section 302 well beyond its express intended application 

and well beyond Bicknell’s application in order to create a duty in direct conflict 

with well established legal principles. 
~ 15 ~

Appellants argue that the fire was foreseeable, based on an odd assertion: 

“That children will play with fire is a matter of common human knowledge.”28

However, Appellants provide no legal basis for this claim. Instead Appellants 

would have the Court characterize any landlord’s lack of knowledge as to a 

tenant’s guests as “willful ignorance.” See id. at 7. No basis for such an assertion 

exists in Texas law. 

The Appellants have furthermore failed to plead any fact or present any 

evidence that Morris and Lisa Melchor should have known that the children under 

the care of adults on the property would go unsupervised, play with fire, and cause 

harm to a neighboring property. Such unforeseeable conduct is similar to the 

conduct addressed by the Texas Supreme Court in Greater Houston Transp. Co. v. 

Phillips, 801 S.W.2d 523 (Tex. 1990). In that case, the Court found a taxicab 

company not liable for the conduct of its employee who caused grievous harm to a 

third party. 801 S.W.2d 523, 526 (Tex. 1990). The plaintiff in that case asserted 

that the taxicab company had a duty to control the actions of its employee. Id. 

Further, the plaintiffs asserted that the taxicab company was negligent in creating a 

situation that presented an unreasonable risk of harm by failing to instruct its 

employee not to engage in dangerous activity, namely carrying a gun. Id. 

However, because no similar incident had occurred previously, the Court held that 

 

28 See “Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” at 6 (emphasis 

added) (SCR 5). 
~ 16 ~

the employee’s actions were not foreseeable as a matter of law, and no duty to the 

motorist to warn the company’s drivers not to engage in dangerous activity. Id. 

The Court elaborated: “To hold that Yellow Cab created a dangerous situation by 

failing to admonish its drivers not to carry guns is an unwarranted expansion” of 

exceptions to the general rule that a person has no duty to control the conduct of 

third persons. Id. 

Instead of relying on well-settled law from binding authority, Appellants 

would have the Court impose an absurd duty of care on the Appellees based on the 

bizarre and unsupported assertion that it was entirely foreseeable that children from 

the big city brought to such a rural setting, and allowed to roam at will 

unsupervised upon thickly wooded and brush-covered land, would at some point 

likely play with fire and cause grievous harm. The law should not impose a duty 

on Appellees to direct parents on how to instruct or monitor their children. 

Furthermore, Appellants’ only claim as to what Appellees did or failed to do is 

entrust real property to Jeremy Melchor. Such allegation does not support a claim 

for negligence and no duty exists. 

Because negligent entrustment claims are limited to chattels and Section 302 

of the Restatement is inapplicable to the issues and facts before the Court, 

Appellees do not owe a duty to Appellants not to “create a dangerous situation” 

when the action in question is merely entrusting property to an adult with children. 
~ 17 ~

CONCLUSION AND PRAYER

The factual allegations in Appellants’ Third Amended Petition only raise 

negligence claims based on Appellees alleged failure to control children that are 

not in the legal or actual custody and/or failure to control adult third parties 

without any special relationship with Appellees. Because the law does not impose 

a duty to control such third parties for the protection of Appellees, summary 

judgment was proper. Furthermore, Texas has not extended negligent entrustment 

claims beyond chattels. Therefore, no duty exists to Appellants. Finally, 

Restatement of Torts Section 302 does not alter other legal principles or support 

the creation of a new duty. Wherefore, Appellees Morris and Lisa Melchor 

respectfully pray that this Court affirm the trial court’s Summary Judgment. 

 Respectfully submitted, 

NAMAN, HOWELL, SMITH & LEE, PLLC 

8310 N. Capital of Texas Highway, 

Suite 490 

Austin, Texas 78731 

(512) 474-1901 

FAX (512) 474-1901 

By: ___/s/ Jay P. Lea____________ 

Jay P. Lea 

State Bar No. 24065923 

jlea@namanhowell.com 

ATTORNEYS FOR APPELLEES 
~ 18 ~

CERTIFICATE OF COMPLIANCE 

 Pursuant to TEX. R. APP. P. 9.4(i), I hereby certify that the foregoing Brief of 

Appellee was computer-generated using Microsoft Word for Windows (2007). 

According to the word-count function of that program, this Brief of Appellee 

contains 4,206 words, excluding any portions of this Brief exempted by TEX. R.

APP. P. 9.4(i)(1). 

 __/s/ Jay P. Lea _____________ 

 Jay P. Lea 

CERTIFICATE OF SERVICE 

 Pursuant to TEX. R. APP. P. 9.5, I hereby certify that a true and correct copy 

of the foregoing Brief of Appellee was served via facsimile and via e-service to 

following counsel on this 10th day of April, 2015. 

Paul C. Velte, IV 

109 E. Hopkins St. 

Suite 204 

San Marcos, Texas 78666 

Facsimile (512) 476-9504 

Velte@PTexans.com 

 __/s/ Jay P. Lea _____________ 

 Jay P. Lea 

Appendix 

1. Plaintiffs’ Third Amended Petition 

2. Appellants Motion for Summary Judgment 
OONTITEL 

CAROLTITEL 

Plaintiffs 

v. 

JEREMY DAVID MELCHOR. 

MORRIS G. MELCHOR. 

LISA MELCHOR, 

MANDY EDWARDS 

Defendants 

No. C 1-CV -12-008224 

§ 

§ 

§ 

IN THE COUNTY COURT 

ATLAW#2 

TRAVIS COUNTY, TEXAS 

THIRD AMENDED PETITION 

TO THE HONORABLE JUDGE OF SAID COURT: 

Comes now Plaintiffs to make this complaint of the actions of Defendants and their 

children, for damages caused when one or more of Defendants' children intentionally or 

negligently started a fire when a burn ban was in effect on July 11, 2011. For causes of action, 

Plaintiffs would show the Court: 

I. Parties & Venue 

Plaintiffs are individuals. This cause of action arose in Travis County. Defendant Jeremy 

Melchor is an individual, who resides in Travis County, Texas, and is already a party to this suit. 

Defendant Mandy Edwards is an individual residing in Travis County, who may be served with 

citation at 693 Pickett Ln., Liberty Hill, TX 78642, or where-ever he or she may be found. 

Defendants Morris and Lisa Melchor are individuals who have answered this suit. 

IIIII~ 11~1111111111111111111111111111111111111111111 000814761 

II. Discovery Level 

Plaintiffs believe discovery should proceed under Rule 190.3 (level II). Plaintiffs seek 

monetary relief in an amount between $200,000.00 and $250,000.00, and within the 

jurisdictional limits of this court. 
III. Cause of Action: Negligence 

A. By parents or those with parental authority. 

On or about July 1 J, 2011, children of two Defendants, Jeremy Melchor and Mandy 

Edwards, negligently or intentionally set a fire to grass, at a time of extreme drought and dry 

conditions throughout the State of Texas. This fire quickly raged out of control and consumed a 

large swath of trees as it moved toward Plaintiff's residence. Plaintiffs believe the children were 

poorly supervised by adults and Defendants were negligent in providing supervision, and also for 

allowing the children to possess a cigarette lighter used to start said fire. Defendants bad the duty 

of control and reasonable discipline oftbese children and are vicariously liable under Chapter 41, 

Texas Family Code. 

They are also liable for their own negligence as the possessors of land by failing to do 

anything a reasonable person would do in possession of highly combustible land in its natural 

(and drought-stricken) state to prevent a wiJdfire intentionally or negligently set by children they 

invited and allowed to roam unsupervised upon the premises and surrounding lands, as in this 

case, where children were allowed to go unsupervised with a cigarette lighter in hand. They 

owed a duty to surrounding property owners to take reasonable steps to prevent any type of fire 

during a time when a county burn ban was in effect. By violating a county ordinance designed to 

prevent the very type of harm that Defendants' negligence caused, such constitutes negligence per 

se. 

B. By landowners. 

Defendants Morris and Lisa Melchor, (hereafter "Senior Melchors") as the owners of the 

property, negligently created a recipe for disaster by acquiring land in an area at high risk for 

wildfire and turning it over to their 'never do well' adult son, who in tum allowed young children 

2 
to enter, reside, and wander unsupervised upon their land, and neighboring heavily wooded 

property as well. Said defendants negligently exercised control over their land and over their 

invitees and persons pennitted to visit and stay upon their premises. Defendants negligently 

failed to monitor and control the activities of their invitees while upon the Defendant's land, 

which activities caused grievous hann to Plaintiffs. They failed to do anything a reasonable 

owner would do in possession of highly combustible land in its natural (and drought-stricken) 

state to prevent a wildfire intentionally or negligently set by children knowingly invited upon the 

premises. 

At all material times, Defendant Jeremy Melchor was acting as the agent of the Senior 

Melchors, in his role as manager of his parent's premises, or they were working together in a joint 

enterprise for the purposes of providing a good home for three children residing there, and to fix 

up the home and property, for its eventual resale. 

PRAYER 

The Plaintiffs pray that this cause be tried by jury. and that final judgment be given for 

their actual damages. in addition to any such other relief. both in law and in equity, to which 

Plaintiffs may prove themselves justly entitled. 

Respectfully Submitted, 

Mt1h 

Paul C. Velte IV 

109 E. Hopkins St., Suite 204 

San Marcos, TX 78666 

512-353-2299 (San Marcos) 

Fax 512-476-9504 

Email: velte@ptexans.com 

Bar #20541700 

ATTORNEY FOR PLAINTIFFS 

3 
CERTIFICATE OF SERVICE 

I certifY that I have served a copy of this document upon all counsel of record on October 

22,2013. 

Paul C. Velte IV 

4 
FErt

138®ptemb®'27P12:1S

Dm® 1

County.Ctesk

Tmwh County

CAUSE NO. C-l.CV-12-008224

DONTITEL&

CAROL TITEL,

Plaintiffs,

V.

JEREMY DAVID MELCHOR,

MORRIS G. MELCHOR,

LISA MELCHOR and

MANDY EDWARDS,

Defendants.

IN THE COUNTy COURT

§

§

AT LAW NO. 2

§

§ TRAVIS COUNTT, TEXAS

DEFENDANTS JEREMY DAVID MELCHOR, MORRIS G, MELCHOR AND LISA

MELCHOR'S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Defendants, JEREMY DAVID MELCHOR, MORRIS 0. MELCHOR and

LISA MELCHOR, filing this Motion for Summary Judgment, and in support thereof, would

respectfully show unto the Court the following:

INTRODUCTION

1. Plaintiffs have brought this lawsuit claiming they suffered harm as a result of a fire that

originated on neighboring property owned by Defendants Morris and Lisa Melcbor. Plaintiffs' First

Amended Petition Section ffl, ^ 1, 2.

2. Plaintiffs claim that Defendant Jeremy Melchor negligently exercised a duty of control and

reasonable discipline over a child, who set fire to grass on the property owned by Defendants Moms

and Usa Melchor, and the fire spread to property owned by Plaintiffs. Plaintiffs allege that Chapter

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

102519589. DOC/3)

PAGE t OF 8
41 of the Texas Family Code provides the basis for Defendant Jeremy Melchor's duty of care. Id.

Section III, 11.

3. Plaintiffs further claim that Defendants Morris and Usa Melchor, as owners of the property,

negligently exercised control over persons allowed to visit and stay on their property. Id. Section ffl,

112.

SUMMARY JUDRMENT STANDARD

4. To prevail on a motion for summaiy judgment, a party must conclusively establish the

absence of any genuine question of material fact and that he is entitled to judgment as a matter of

law, TEX. R. Civ. P. 166a(c).

5. A defendant who conclusively negates at least one of the essential elements of a cause of

action is entitled to summary judgment as to that cause of action. Randall's Food Markets, Inc. v.

Johnson, S9\ S, W.2d640, 644(Tex. l995); WomickCo. v. C(uw, 856S. W.2d732, 733CTex. 1993).

All doubts about the existence of a genuine issue of material fact are resolved against the movant.

Randall's, W\ S.W.2d at 644; GreatAm. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391

S.W.2d41, 47(Tex. l965).

SUMMARY JUDGMENT EVIDENCE

6. To support the facts in this motion. Defendants include the following summary judgment

evidence in an appendix filed with this motion and incorporates the evidence into this motion by

reference.

Exhibit A: Selected Excerpts of the Videotaped Oral Deposition of Defendant Jeremy David

Melchor;

Exhibit B: Selected Excerpts of the Videotaped Oral Deposition of Defendant Mwidy

DEFENDANTS' MCmON FOR SUMMARY JUDGMENT

(02S19W.DOC/1',

PAGE 2 OF 8

\^
Edwards; and

Exhibit C: Selected Excerpts of the Oral Deposition of Donald Lee Titel.

SUMMARY JUpffWW FACTS

7. Jeremy Melcher resides at 693 Pickett Lane in Liberty Hill, Texas along with his girifnend,

Mandy Edwards. Exhibit "A," Melchor Dep. 13:24. 14:4; Exhibit "B," Edwards Dcp. 18:23-19:4.

Jeremy is a tenant on the property, occupying pursuant to an oral lease with his father Morris

Mclchor and stepmother Usa Melchor, who own the property at 693 Pickett Lane. Exhibit "A,"

MelchorDep. 7:14-8:6.

8. Mandy Edwards is mother to two minor children, and fi-om

previous relationships. Exhibit "A," Melchor Dep. 14:19-15:10.

9. resides in Alabama with his father. Exhibit "A," Melchor Dep. 16:16;

Exhibit "B," Edwanls Dep. at 8:15-20.

10. does not reside, and never has resided, at 693 Pickett Lane. Exhibit "B/

Edwards Dep. at 7:25. 8:20; Exhibit "A," Melchor Dep. 16:2-12, Jeremy Melcher is not

parent or guardian, nor does be exercise any parental control or discipline over

Exhibit "A," Melchor Dep. 22:8.24:1.

11. In July of 201 1 was in Liberty Hill, Texas visiting his mother and staying

with her at 693 Pickett Lane. Exhibit "B," Edwards Dep. 16:1-5. On the morning ofjuly 11, 2011,

started a fire in a grassy area near or around the house at 693 Pickett Lane. /</. at

37:1-18. The fire spread to neighboring property owned by Plaintiffs. allegedly causing property

damage. Exhibit "A." Melchor Dep. 31:1 8-20; Exhibit "C," Titel Dep. 39:23-43:17

12. On the evening of July 11, 2011, told his mother that he had started the fire.

DEFENDANTS' MOITON FOR SUMMARY JUDGMENT

<02S19S»9.00C/3l

PAGE 3 OF 8

B
Exhibit "B," Edwards Dep. 34:8.23, 37:1-18.

13. Mandy Edwards mother, was present at 693 Pickett Lane when the fire

started. Exhibit "A," Melchor Dep. 28:8-19, 30:18.23; Exhibit "B," Edwards Dep. 39:1.17. No

other adult, including Defendants Jeremy Melchor, Morris Melchor and Lisa Melchor, were present

at 693 Pickett Lane or exercising any parental control over when the fire started.

Exhibit "A," Melchor Dep. 28:8-19, 30:18.23; EKhibit «B," Edwards Dcp. 39:1-17.

ARGUAffiNT & AUTHORITIES

A. DefcndanS Jwemy Melchor is entitled to Summary Judpaent because he did not

owe any duty under the Texas Family Code to exercise control over

14. Defendant Jeremy Melchor is entitled to judgment as a matter of law because the

uncontradictcd summary judgment evidence establishes that there is no genuine issue of material fact

regarding the following element(s) of Ac PlainttfFs cause of action. To establish tort liability a

plaintiff must initially prove the existence and breach of a duty owed to him by defendant. Ofis

Engineering Corp v. dark, 668 S.W.2d 307, 309 (Tex. 1983). In the present case the existence of a

duty simply does not exist,

15. Texas law generally imposes no duty to control the acts of another person to prevent harm to

third parties absent certain special relationships or circumstances. Providence Health Ctr. v. Dowell,

262 S.W.3d 324, 331 Qex. 2008); Torrington Co. v, Stutzman, 46 S. W.3d 829, 837 (Tex. 2000);

Carter v. Abbyad, 299 S.W.3d 892, 895 (Tex. App. Austin 2009). The parenVchild relationship is

one exception to this general rule. Greater Houston Tramp. Co. v, Phillips. 801 S.W.2d 523, 525

(Tex. 1990); TEX. FAM. CODE ANN. §§41. 001(1), 151. 001(d).

DEI'ENOANTS' MOTION FOR SUMMARY JUDGMBNT

102510W. DOC/3)

PACE 4 OF 8
16. Under the Texas Family Code, a parent or other person "who has the duty of control and

reasonable discipline of a child" may be held liable for property damage caused by the negligent

conduct of the child that is reasonably attributable to the negligent failure of the parent or other

person to exercise that duty. TEX. FAM. CODE ANN. § 41. 001(1).

17. There is no basis under Texas law for imposing this duty of control and discipline on an

unrelated third-peraon who has not voluntarily assumed any parental rights or obligations over the

child. See Coons-Andersen v. Andersen, 104 S. W.3d 630, 635 fTex. App.-Dallas 2003, no pet.);

Cwningham v. Ansorena-Cunnlngham, 2009 WL 2902718 *6-7 CTex. App. Austin Aug. 26, 2009).

In fact, the law does not favor shifting the duties imposed by the Family Code from the parent to a

non-parent absent unique circumstances not present in the case at hand. See, e, g; TEX. FAM, CODE

ANN. § 151.001(d); In re Martin, 147 S.W.3d 453, 456 (Tex. App.-Beaumont 2003, pet, denied);

McCullough v. Godwin, 214 S.W.3d 793, 808 (Tex. App. -Tyler 2007, no pet).

18. In the alternative, i fJeremy Melchor did have a duty under the Texas Family Code, he did not

breach that duty because the fire was not foreseeable. See Timberwalk Apartments. Partners, Inc. v.

Cam, 972 S.W.2d 749, 756 fTex. 1998); Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex.

1999).

B. Defendants Morris and Lisa Melchor are entitled to Summary Judgment because

they did not owe any duty to Plaintiff to prevent the damages under the circumstances.

19. Defendants Morris and Lisa Melchor are entided to judgment as a matter of law because the

uncontradicted summary judgment evidence establishes that there is no genuine issue of material fact

regarding the following elements) of the Plaintiffs cause of action. To establish tort liability a

plaintiff must initially prove the existence and breach of a duty owed to him by defendant. Otis

DEFENDANTS' MOTION FOR SUMMARY JUDOMENT

(02$19S89. DOC/3)

PAOESOFS

15
Engineering Car, 668 S.W.2d at 309. In the present case the existence of a duty simply does not

exist.

20. Texas law generaUy imposes no duty to control the acts of another person to prevent harm to

third parties absent certain special relationships or circumstances. Providence Health Ctr., 262

S.W.3d at 331; Tomngton, 46 S.W.3d at 837; Carter. 299 S.W.3d at 895. Examples of relationships

that have been recognized as giving rise to a duty to control include employer/employee,

parent/child, and independent contractor/contractee. Greater Houston Transp. Co, 801 S.W.2d at

525.

21. There is no basis under Texas law for imposing a duty on landowners to control the conduct

of unknown third-persons on their property.

22. In the alternative, if Morris and Lisa Melcbor did have a duty. they did not breach that duty

because the fire was not foreseeable. See Timberwalk, 972 S,W.2d at 756; Melton, 5 S.W. 3d at 655.

ALTERNATIVE RELIEF

23. In the alternative, if the Court denies any part of Defendants' motion for summaiy judgment,

Defendants ask the Court to sign an order specifying the facts that are established as a matter of law

and directing any further proceedings as are just. See TEX. R. Civ. P. 166a(e).

CONCLUSION

24. Defendants Jeremy Melcher, Morris Melchor and Lisa Melchor are entitled to judgment as a

matter of law. This is an action based on negligence, yet Defendants Jeremy Meicher and Moms and

Lisa Melchor did not owe any duty to Plaintiffs to prevent the damages under the circumstances of

this case. Even if a duty to prevent damages did exist, none of these Defendants breached their duty.

The summary judgment facts lead to only one conclusion: started the fire, and there

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(02J19S89.DOC/1}

PAGE 6 Oi: 8

}k
is no legal basis for imputing legal liability onto Defendants Jcrcmy Melchor,

Morris Melchor or Lisa Melchor.

25. Therefore, the summary judgment evidence conclusively shows that there are no genuine

issues of material fact regarding the Plaintiffs' claims, and Defendants Jeremy Mclchor, Moiris

Melchor, and Lisa Melchor are entitled to judgment as a matter of law.

PRAYER

WHEREFORE, Defendant requests that this Court grant this motion and sign an order for

final summaiy judgment.

Respectfully submitted,

NAMAN, HOWELL, SMTTH & LEE, PLLC

8310 Capital of Texas Highway North, Suite 490

Austin, Texas 78731

(512)/|79.0300

FAX^12) 474. 1901

BY:

James W. Goldsmith, Jr.

State Bar No. 24051570

AfrORNEYS FOR DEFENDANTS JEREMY

DAVID MELCHOR, MORRIS 0. MELCHOR and

USA MELCHOR

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(OM19589.DOC/3)

PAOE70F8

n.
NOTICE OF REARING

Be advised that the above and foregoing Motion for Summary Judgment is set hearing on

Tuesday, October 29, 2013 at 9:00 a.m. in the ^uo<y Court at Law No. 2 of Travis County, Texas.

W. Goldsmith, Jr.

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing was served upon the

parties and counsel of record for Plaintiff, as shown below, in accordance with Rules 21 and 21(a) of

the Texas Rules of Civil Procedure, on the 27th day of September, 2013.

PaulCVelteIV

Attorney at Law

109E. HopkinsSt., Ste. 204

San Marcos, TX 78666

Mandy Edwards

693 Pickett Lane

Leander, TX 78641

Sent Via Fscsimttc to: (512) 476-9504

Sect Vis Certified Mail, Return Receipt Requested

FW. Goldsmith, Jr.

DEFENDANTS' MOTION FOR SUMMARY JUDOMENT

(02519589. DOC/3}

PAGE 8 OF 8
JEREMY DAVID MELCHOR 3/4/2013

CAUSE NO. C-l-CV-12-008224

DON TITEL & CAROL TITEL,

Plaintiffs,

vs.

JEREMY DAVID MELCHOR,

Defendant.

) IN THE COUNTY COURT

)

)

) AT LAW NO. 2

)

>

) TRAVIS COUNTY, TEXAS

VIDEOTAPED ORAL DEPOSITION OF

JEREMY DAVID MELCHOR

MARCH 4, 2013

VIDEOTAPED ORAL DEPOSITION OF JEREMY DAVID MELCHOR,

produced as a witness at the instance of the Plaintiffs,

and duly sworn, was taken in the above-styled and numbered

cause on the 4th of March, 2013 from 1:03 p. m. to 2:25

p. m., before Amber Kirton, CSR, in and for the State of

Texas, reported by machine shorthand, at the law offices

of Naman, Howell, Smith fi Lee, PLLC, 8310 Capital of Texas

Highway, Suite 490, Austin, Texas, pursuant to the Texas

Rules of Civil Procedure and the provisions attached

hereto.

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INDEX

Appearances

JEREMY DAVID MELCHOR

Examination by Mr. Velte

Signature and Changes,

Reporter's Certificate,

Further Certification................... <........... 70

EXHIBIT

INDEX

NO. DESCRIPTION PAGE

1 Plat....,............... >-.... -..... -.... '... - 7

2 Letter to Paul Velte from Jeremy Melchor........ 55

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JEREMY DAVID MELCHOR,

having been duly sworn testifies as follows:

EXAMINATION

BY MR. VELTE:

Q. Hi. Is it Melchor or Melchor?

A. Melchor.

Q. All right. First name Jeremy?

A. Yes, sir.

Q. And what's your middle name?

A. David.

Q. What's your date of birth?

A. 12/23/76.

Q. Now, I sent a notice to your lawyer,

Mr. Goldsmith, of a notice of intent to take your

deposition today.

A. Yes, sir.

Q. And that notice - did he provide you a copy?

A. Yes, sir.

Q. And so you saw in the notice where I said to

bring some items with you?

A. I did, but I don't have any of those items.

Q. Okay. So T had asked you for three items. One

was leases and deeds related to your residence known

locally as 693 Pickett Lane.

A. Okay.

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Q. All right. Now, who owns the land that is at 693

Pickett Lane?

A. My father.

Q. Okay. Now, that would be -- I want to draw

you --

MR. VELTE: Let me get this marked.

(Exhibit No. 1 marked.)

Q. (BY MR. VELTE) I want to show you what we've

marked as Deposition Exhibit No. 1, and I would submit to

you that's a blow-up of the property tax plat records.

And ask you to take a look at that. And do you see

Pickett Lane and Ivy Lane on there?

A. Yes.

Q. And can you identify your property where you're

living?

A. I believe it's this 355413, I think.

Q. Okay. And that would be that little blue square

that's kind of in the - I guess you'd say below Ivy Lane

on that map?

A. Yes, sir.

Q. Okay. Now, how big is that parcel?

A. One acre.

Q. It's one acre, okay. And the larger parcel, do

you know how big it is?

A. I think it's 18 - 18 acres.

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Q. Okay.

A. 18 point something. I'm not exactly sure. I

don't own it.

Q. Now, the ~ your father owns the one acre and the

other 18. Do you know who owns it?

A. He has -- he owns it now.

Q. Okay. So he recently acquired that?

A, Correct.

Q, Okay. Do you know who the previous owner was?

A. I believe her name was Yolanda Rodriguez.

Q. And when did your father acquire the other 18

acres there that surrounds -

A. Don't know. You'd have to talk to him.

Q. You don't know a time frame?

A. I don't know.

Q. Well, I mean, was it last year?

A. I think so. I don't know exactly when, though.

It's not - I don't - it's his business, not mine.

Q. Do you know why he bought it?

MR. GOLDSMITH: Objection; form.

A. Could you restate the question?

Q. (BY MR. VELTE) Do you know why your father

bought the other 18 acres surrounding the acre that you're

living on?

MR. GOLDSMITH: Objection; form.

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side of your map is missing.

Q. So it's further down Ivy Lane?

A. It's at the end, yes. They're the last house on

the right at the dead-end.

Q. All right. So then you don't know the neighbors

that live at 355406?

A. I don't know.

Q. And you don't know the Titels either that live

across the road?

A. No, sir.

Q. Any other neighbors you know?

A. Just the ones I gave you.

Q. And you don't know the people on the other side

of Pickett Lane?

A. No.

Q. Would you agree that in a perfect world it's a

good idea to stay on good terms with your neighbors?

A. Yes, sir, and I am.

Q. You are?

A. With the ones that I know, yes, sir.

Q. Okay. Do you agree that it's a good idea to get

to know your neighbors?

A. Yes, sir.

0. Is it true that - well, let's ask about who

lives at your residence there at 693 Pickett Lane. At the

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time of this fire in July of 2011 who was residing there

at 693 Picket! Lane?

A. Myself, my son , my other son and

my daughter, and Mandy Edwards.

Q. Now, were there other kids there?

A. Yes.

Q. Who were they?

A. 

Q. Any others?

A. I don't remember. I want to say but

I don't remember for sure if he was there or not.

Q. Okay. Now, let's talk about each one. So you

have two boys, and ?

A. and .

Q. , I'm sorry. And ?

A. Correct.

Q. So a daughter and two boys?

A. Uh-huh.

Q. What's your relationship with Mandy Edwards?

A. She's my girlfriend.

Q. Y'all are not married?

A. No.

Q. Does she still reside there?

A. Yes.

Q. And does she have children by previous

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relationship?

A. Yes.

Q. Okay. And who would those be?

A. I'm sorry, her children?

Q. Yes.

A. and 

Q. And how old is ?

A. 13, I believe.

Q. Okay. And 

A. Right now nine.

Q. And what is your relationship to and

A. They're my girlfriend's kids.

Q. What about - are all these children still

residing there now?

A. No, sir.

Q. Okay. Where are -- where are they?

A. Well, lives with his mother now as of

last year and and haven't lived there.

They live with their parent.

Q. Who are their parents?

A. n's is Daniel McKeever and is Kevin

Smith.

Q. And so each of those boys is now living with

their other parent?

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A. They have always, yes.

Q. You said they have always lived with their other

parents?

A. Yes.

Q. So they don't reside at your place?

A. No.

Q. Now, what about in July of 2011? Were they

residing at your place then?

A. No, they were on visit.

Q. So is it true they have never resided there, they

have always just come and stayed, what, for short periods?

A. Correct.

Q. And how frequently was that, every first, third,

fifth weekend?

A. No. I don't know dates, but it's just kind of

sporadically. I mean, lives in Alabama, not here, so

I mean, it's kind of - we can't get him first, third and

fifth weekend. I don't have money to do that. 

lives in Bastrop and generally comes - just depends.

Three to four weeks.

Q. Whenever the parents agree?

A. No, it's not necessarily that. Just whenever he

has time. You know, they keep him pretty busy in school

and different after-school functions and stuff so whenever

he has time.

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Edwards with six children.

A. Correct.

Q. Now, I think you named five,

A. Okay.

Q. Who would the sixth child, have been?

A. I don't believe there was one. I believe the

news misreported, like they generally do.

Q. Ail right. Now, what is your relationship with

? Does he call you Dad ever?

A. No.

Q. What does he call you?

A. Jeremy.

Q. And are you, like, his stepparent?

A. No.

Q. Whose job is it to discipline him?

A. I assume his mother and father.

Q. So you don't exercise any discipline over 

A. No.

Q. What about the other child, Mandy's other boy,

?

A. No.

Q. No. So you let Mother do all the - you let

Mandy, as mother, exercise all the discipline over those

two boys?

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A. Yesr sir.

Q. Was ever left in your care?

A. Not by himself, no.

Q. What about you and the other boys?

A. My kids?

Q. Yes.

A. Well, of course.

Q. So there are times, then, when you're the only

adult there with those boys?

A. Definitely.

Q. So you had authority to supervise them?

A. When?

Q. Well, any time he was left in your care.

A. Yeah.

Q. Have you ever had to discipline him?

A. ?

Q. Yes.

A. No.

Q. You've never had to spank him?

A. That's not my place. She's my girlfriend but not

my wife. It's not my place to discipline her children.

Q. So your testimony is no?

A. Correct.

Q. You've never had to spank the boy. Have you ever

had to punish him in any other way?

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A. Testimony was no.

Q. Now, father is Daniel McKeever and

you say that he lives out of state?

A. Correct.

Q. What state does he live in?

A. Alabama.

Q. And have you ever met that man?

A. One time, yes, sir.

Q. Okay. And does he - do you know what he does

for a living?

A. I haven't got a clue.

Q. Do you know what city or county he resides in in

Alabama?

A. No, sir.

Q. Do you know his phone number?

A. No, sir.

Q. W.hat about r's father, Kevin Smith?

A. Are you asking me the same questions?

Q. Yes. Do you know where he resides?

A. Yes, sir.

Q. Where?

A. Bastrop.

Q. Do you know address?

A. No, sir.

Q. So he lives in the City of Bastrop?

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Q. And where does she reside?

A. Smithville.

Q. Now, is older fchan ?

A. I think they're the same age. Hers is in May. I

think they're the same age, a few months apart.

Q. Which one would be older?

A. Probably Maybe. I'm not certain.

Q. Okay. Now, regarding the five children, then,

that would be at this residence at least on July llth of

2011, who normally had charge of these five children?

A. While I was at work?

Q. Yeah.

A. Mandy.

Q. What was the usual routine - daily routine? You

went to work in the mornings?

A. Yes, sir.

Q. Okay. And you left her in charge of the children

at home?

A. Correct.

Q. And is it true that the children were often left

unsupervised?

A. No. That's false.

Q. Is it true that CPS has been called out to

investigate?

A. That's true.

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Q. Are you aware in the fire marshal's report where

it says that Mandy Edwards sent the kids outside to eat

lunch?

A. I haven't seen the report so I couldn't tell you.

Q. Okay. I would ask you -- are you a smoker?

A. Yes.

Q. Is Mandy Edwards a smoker?

A. I guess you could say that, yeah.

Q. Is it true that one or more of your children were

smoking cigarettes at one point in the past?

A. False.

Q. So you're not aware that one of your boys offered

a neighbor boy a cigarette?

A. No, I'm not.

Q. Another neighbor of yours says that your children

run loose and are not supervised.

A. That's 100 percent false.

Q. Now, on the day of the fire where were you?

A. At work.

Q. At what location?

A, Cedar Park.

Q. At the Poky Jo's restaurant?

A. Smokey Mo's.

Q. Smokey Mo's. I'm sorry.

A. I'm sorry. You've called it three different

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things since we've been sitting here. Yes, 1431 and 183.

Q. Okay. And do you know who set the fire?

A. No.

Q. All right. So as we sit here today, I guess a

year and a half later, you don't know who started the

fire?

A. All I have is hearsay, so I don't know.

Q. Well, what is the hearsay you have?

A. What I heard was that set the fire, thafc

they were going out to eat and that's - I don't even

know. He found a lighter or something is what I've gotten

from, I mean, everybody. That's all I know. I don't

really know what actually happened that day. I wasn't

there.

Q. But surely yo.u've interviewed Mandy and the

children about what happened, right?

A. (Witness nods head.)

Q. So what they're telling you is that 

started it with a lighter?

A. That's what I've heard, yes, sir.

Q. And you've taken no interest in how that

happened? Do you know where it happened? Do you know why

it happened or any of that?

A. I know where it happened. I saw it after the

fact.

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Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 1

DON TITEL

CAROL TI TEL

Plaintiffs

vs.

CAUSE NO. Cl-CV-12-008224

) IN THE COUNTY COURT

)

)

)

JEREMY DAVID MELCHOR,

Defendant

AT LAW NO. 2

TRAVIS COUNTY, TEXAS

A******************************

VIDEOTAPED ORAL DEPOSITION OF

MANDY EDWARDS

April 1, 2013

******. **********************-***

VIDEOTAPED ORAL DEPOSITION OF MANDY EDWARDS,

produced as a witness at the instance of the Plaintiffs, and

duly sworn, was taken in the above-styled and numbered cause on

the 1st day of April, 2013, from 12:59 P. M. to 2:25 P. M.,

before DOTTIE NORMAN, Certified Shorthand Reporter in and for

the State of Texas, reported by machine shorthand, at the

offices of The Texas Law Center, 1414 Colorado Street, Austin/

Texas, pursuant to the Texas Rules of Civil Procedure and.the

i^MssL^/^ZSM

provisions attached hereto.
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

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Page 2

APPEARANCES

FOR THE PLAINTIFFS:

PAUL C. VELTE, IV

Attorney at Law

109 E. Hopkins St., Suite 204

San Marcos, Texas 78666

FOR THE DEFENDANT:

NAMAN HOWELL SMITH & LEE, PLLC

By: JIM GOLDSMITH

8310 N. Capital of Texas, Suite 490

Austin, Texas 78731

/

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Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

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INDEX

Appearances

MANDY EDWARDS:

Examination by Mr. Velte

Examination by Mr. Goldsmith

Correction Sheet

Signature Page

Reporter's Certificate

Page 3

PAGE

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4

69

73

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75

NUMBER

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2

EXHIBITS

DESCRIPTION

Temporary Orders dated 10-8-09

Citation

PAGE

6

7

^Ip
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 4

1 MANDY EDWARDS,

2 having been first duly sworn, testified as follows:

3 EXAMINATION

4 BY MR. VELTE:

5 Q. All right. Your name is Mandy Edwards?

6 A. Yes, sir.

1 Q. And, Mandy, do you have a cell phone?

8 A. I do have a cell phone.

9 Q. Okay. If it goes off -- I mean, do you mind turning

10 it off -

11 A. Oh, it's off, yes.

12 Q. -- so we can do - okay. I just didn't want to have

13 any interruptions.

14 MR. GOLDSMITH: Thanks for the reminder.

15 Q. (By Mr. Velte) Have you ever had your deposition

16 taken before?

17 A. No, sir.

18 Q. Do you understand what a deposition is?

19 A. Kind of, somewhat.

20 Q. Has anybody explained it to you?

21 A. Just a little bit. I'm basically just here to tell

22 my side of the story, the truth.

23 Q. Okay.

24 A. As much as I know.

25 Q. That's why you are sworn in.

-y,

-..?
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 1

A. So I figured if that helps.

Q. All right.

A. That's the last known address that I do know of, so

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Q. All right.

MR. VELTE: Let's mark that as Exhibit 2.

{Exhibit No. 2 marked)

MR. VELTE: Can I see Exhibit No. 2?

Q. (By Mr. Velte) So Exhibit 2 is three pages. Let me

just take a look at it.

A. Uh-huh. Okay.

MR. GOLDSMITH: Maybe we can take a couple of

minutes just to look at both of them and then swap.

MR. VELTE: You want to switch?

MR. GOLDSMITH: Sure.

Q. (By Mr. Velte) All right. Let me ask you about

Exhibit No. 2 first.

A. Okay.

Q. It states that it's a citation of - apparently you

sued Mr. McKeever regarding child support or child custody of

A. Actually, he sued me. He went for a summer

visitation and then I was served with that. And he didn't want

to return his son, so that's what I was faced with.

Q. Oh. So you sent your son to be with father for

^

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Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 8

1 the suminer?

2 A. Uh-huh, in 2009.

3 Q. And he didn't return him?

4 A. Yeah.

5 Q. I see. So you had to - you sued in Texas?

6 A. Yes.

7 Q. And did Mr. McKeever sue in Alabama?

8 A. No. Actually, that case is still open. And for two

9 years I have been trying to contact his lawyer and nothing.

10 Q. Okay.

11 A. Sorry. That -- that case is a little sensitive, but

12

13 Q. Yeah, I'm sure. I'm sorry to hear that. I'm just

14 trying to wrap my brain around what the situation is. The -

15 is your son?

16 A. Yes.

17 Q. Okay. And how old is he now?

18 h. He's 9 now.

19 Q. Okay. And his father lives in Alabama?

20 A. Correct.

21 Q. And when in 2009 you sent to be with him and he

22 didn't return, you initiated this action here in Williamson

23 County. Did you get -- his name is Daniel?

24 A. Daniel McKeever.

25 Q. Yeah. Did Daniel respond to the lawsuit? Did you

^
Cause No. C1-CV-12-OOB224

Oral Deposition of Mandy Edwards

Page 16

1 Q. At the time, though, that the fire began, you had

2 several children under your supervision?

3 A. Correct.

4 Q. And this is at 693 Pickett Lane?

5 A. Yes.

6 Q. Mi right.

1 A. Yes.

8 Q. And was there any other adult present?

9 A. Yes. Actually, the reason there was more children

10 was because we had hired a construction worker. He was

11 remodeling our house at the time. And his son was similar in

12 age to all the -- our children. He asked if he could bring

13 him. I said, "That would be fine. They can play, you know."

14 So it was Shane Painter. He was the construction worker that

15 was remodeling our house, and also a Jerod Duncan which is

16 Jeremy's half-brother from Katy, Texas. He was there as well.

17 He was visiting, looking for employment up here actually.

18 Q. Okay. Okay. Now, who else was present besides

19 Shane, Jerod and you? It was just the children?

20 A. Children. His son. Gosh. What is his name?

21 Q. Shane's son?

22 A. Shane's son. I'm sorry. I can't remember his name.

23 Q. Okay.

24 A. And then my son, 

25 Q. Okay.

' ^, 7

(
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 17

A. And 

Q. Okay.

A. And then Jeremy's three children, 

and 

Q. I'IT. sorry. I missed -- it was , and

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who?

A. , . Did you get ?

Q. And n. Oh, is it you said?

A. .

Q. Okay. --

A. There is a and a .

Q. And a . That's what I was missing. Okay.

All right. So we had five children?

A. Correct.

Q. Okay. What is your profession?

A. As of right now I am a - my title has changed. I

guess you can call me a kennel technician. I just got promoted

to - I'm kind of doing everyone's job. Office manager. I

don't know. I just say kennel technician.

Q. What is a kennel technician?

A. It's a - it's at a - it's in -- it's called

Southern Star Ranch. It's a boarding and kennel facility,

canine training center.

Q. Okay. And that's where you work now?

A. Yes.

^
Cause No. Cl-CV-12-008224

Oral Deposition of Handy Edwards

Page 18

Q. And what about for the past few years?

A. Self-employment. I have just - I have cleaned

houses. The main reason I did that -- I started that in 2000

was to revolve my life around my children. So I cleaned

houses.

Q. Okay.

A. In the mix in between, the 13 years, I have gone to

college. I've, you know, done everything else, but my

priority, main source was cleaning houses.

Q. And what were you doing in July 2011 for work?

A. Actually, at that time I was not employed. I was

cleaning Jeremy's father's house every two weeks and that was

my only -- my, I guess, job you could say was staying at home.

I was the house - not housewife because I'm not his wife. You

know, I stayed home and took care of the house and the kids and

everything in between.

Q. Okay. So when did you -- or how did you meet Jeremy

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Melchor?

A. Smokey Mo's Bar-B-Q -

Q. Okay.

A. -- where he was working at the time. Well, still

is, but --

Q. And when did you move in with him?

A. It was October 2010.

Q. Okay. And that was at 693 Pickett Lane?

^
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 19

A. Yes.

Q. Okay. What is your relationship with Jeremy Melchor

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now?

A. We're still boyfriend and girlfriend.

Q. All right. So you were pretty much at that point in

time a stay-at-home moro or did you do these side jobs, too?

A. Pretty much stay-at-home mom. I was only cleaning

for his father until I figured out what I was going to do with

my career. It was always my goal to get in the veterinarian

field. And then in November 2012 - yes, 2012, that's when I

found this ad on Craigslist for Southern Star Ranch.

Q. Uh-huh.

A. And that's my " my new career.

Q. Okay. The work you did for Morris Melchor, Jerem^'s

father -

A. Yes.

Q. What did that entail?

A. House cleaning. That was a detailed house cleaning

»

every two weeks.

Q. Just one house or --

A. Yeah, just his --

Q. -- several?

A. No, just his house.

Q. Okay. Can you describe the place at 693 Pickefct

Lane? What kind of place is it?

^
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 34

1 with the drought, et cetera, et cetera. We just assumed it was

2 another brush fire and it jumped through the 'property. You

3 know, and we tried to backtrack where we thought they had their

4 lunch, is what we were told. There was never a lighter found.

5 There was never nothing. So ~- and all we heard was "We seen a

6 fire and it went boom and boom, " and that's all we got out of

7 it. And then --

8 Q. Okay. So do you recollect and telling

9 " Daniel Berger, I would subinit, is the deputy fire marshal's

10 name. Do you recall them telling him that they had used a

11 lighter to start the fire?

12 A. I recall -- he finally - I can't remember. It

13 was in the evening. It was dark. That whole entire day, I

14 mean they ~- everyone -- the fire marshals, the officers were

15 just interro - just pounding on him like, you know, like "You

16 started it. You started it. " He finally just gave in and

17 said, "Okay, I started it. " He said, "The only reason I did

18 because I wanted to have a campfire for our lunch. " I packed

19 them a lunch to go outside, which was a normal thing they did.

20 And he said, "I learned in Boy Scouts how to start a -- you

21 know, a small fire and I thought I could put it out. " And that

22 was it. And then we never -- after that never even seen the

23 fire report.

24 And, again, the lighter was never found. So I

25 don't know if he - is the kind that will take blame for

^
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 37

1 A. Yeah. That's when hewas just like "I did" -- you

2 know, "I started the fire. " And I'm like "Well, we need to go

3 talk to the fire marshal and discuss this."

4 Q. So you are the one then that when you got alone

5 you were able to get him to confess the truth to you?

6 A. Not necessarily.

7 Q. Well, then why did you - I don't understand. I

8 roean, you're saying ~-

9 A. Because at the time we were all upset and we were

10 talking about the possibilities of what can happen with a fire

11 if they were to start it. We didn't know at the time. Their

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story was very consistent as far as they just went to have a

lunch, et cetera, et cetera. And then he literally was just

like "Okay, Mom, " you know. He's like "I started the fire."

It totally threw me off. I said, "Well, let's

16 go discuss this with the fire marshal and figure out what's

17 going on. And if you did, " I said, "of course we need to tell

18 the truth and we need to acknowledge that."

19 Q. Uh-huh.

20 A. But just how all of a sudden, it's still a mystery

21 to me because I don't understand -- I don't know if he just got

22 to the point where he's like "I'm tired of hearing this. Let

23 me just say it so I can get it over with. " Maybe make things

24 better is what I'm thinking. He was seven years old at the

25 time. He doesn't have the mental capability of, first of all,

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Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 38

1 having the intention of setting a fire purposefully. I think

2 that he was just -- everyone - I mean, I can't even explain

3 how many people were there just on his butt, you know.

4 Q. How many people were there?

5 A. The fire marshal, all the constables, the sheriff,

6 just everyone in general from the whole entire day. Like I

7 say, that -

8 Q. What about those other two men that you said, Jerod

9 and the other gentleman?

10 A. Shane?

11 Q. The carpenter guy.

12 A. Uh-huh.

13 Q. Was he there, too?

14 A. Yes. Well, they left. I don't recall exactly what

15 time they left. I roean, they stuck around a little while. I

16 don't recall. Well, Jerod was staying actually for a week.

1. 7 Shane - I don't remember exactly what time he left. But after

18 he gathered his emotions and everything calmed down, then he

19 left for the evening.

20 Q. Okay. That was after the fire had been -

21 A. Yeah, after they -

22 Q. -- called in?

23 A. - finally got it out and -

24 Q. Okay. Now, did those two men help you get out of

25 there with all the kids?
Cause No. Cl-CV-12-008224

Oral Deposition of Mandy Edwards

Page 39

1 A. Well, I was cooking - I'm trying to backtrack. I

2 was cooking lunch for the other children. Shane, the painter

3 -- he came running in the house and just said, "There's a

4 fire. You need to get everyone out. " That's all I heard. So

5 I got all the kids out, gathered them in the truck. And then

6 is like "My turtle. " So then we had to go back and gather

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all the animals and we took off. And, like I say, it happened

just so fast.

Q. Uh-huh.

A. And all I knew was to get the kids out of there.

All I seen was black sinoke in the air. I just knew get out.

12 And Shane stayed. And it scared me to death. I kind of waited

13 for him. I was like "You can't stay here. " I didn't know

14 which way - I, of course, didn't know what was going on.

15 Calling Jeremy. He was at work. I said, "Can you - you need

16 to come home. There's a fire."

17 I proceeded I believe to call 911. And after

18 that, like I say, it was very - everything happened so fast

19 that day. My goal was to get out of there, but then I'm

20 thinking in my mind Shane is still there. It's like "He can't,

21 you know, stay there, " so I just -

22 Q. So Shane was the first one to see this fire?

23 A. Froro my knowledge, yes, because he came in and told

24 me. I was cooking lunch, like I said, for the other children.

25 And he just came running in the house. "There is a fire. Get
DONNIE LEE TITEL 3/4/2013

CAUSE NO. C-l-CV-12-008224

DON TI TEL fi CAROL TITEL, ) IN THE COUNTY COURT

Plaintiffs, )

)

VS. ) AT LAW NO. 2

)

JEREMY DAVID MELCHOR, )

Defendant. ) TRAVIS COUNTY, TEXAS

**************

ORAL DEPOSITION OF

DONNIE LEE TI TEL

MARCH 4, 2013

****************

ORAL DEPOSITION OF DONNIE LEE TITEL, produced as a

witness at the instance of the Defendant, and duly sworn,

was taken in the above-styled and numbered cause on the

4th of March, 2013 from 9:20 a. m. to 10:39 a. m., before

Amber Kirton, CSR, in and for the State of Texas, reported

by machine shorthand, at the law offices of Naman, Howell,

Smith & Lee, PLLC, 8310 Capital of Texas Highway, Suite

490, Austin, Texas, pursuant to the Texas Rules of Civil

Procedure and the provisions attached hereto.

^'^'^T .»t-. i--' .'

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N D E X

Appearances

DONNIE LEE TI TEL

Examination by Mr. Velte

Signature and Changes

Reporter's Certificate

Further Certification

EXHIBIT

INDEX

NO. DESCRIPTION

A MapQuest 105 Ivy,

B MapQuest 105 Ivy,

C MapQuesfc 693 Pickett Lane

D MapQuest 693 Pickett Lane

E Titel Damages Summary

4

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PAGE

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DONNIE LEE TITEL,

having been duly sworn testifies as follows;

EXAMINATION

BY MR. GOLDSMITH;

Q. Mr. Titel, please state your full legal name for

the court reporter.

A. Donnie Lee Titel.

Q. Mr. Titel, my name is Jim Goldsmith and I'ro an

attorney that's been retained by Jeremy David Melchor in a

lawsuit that you filed against him as a result of an

incident on July llth, 2011. Do you understand who I am

and who I represent?

A. Yes.

Q. And you understand that your purpose here today

is to offer sworn deposition testimony so that we can find

out what you might say in a trial if we were go to a trial

of this matter. Does that make sense?

A. Yes.

Q. One of the things that we need to take care of on

the outset is some ground rules on how, we're going to

speak to each other. And the reason we do that is because

the court reporter is typing down everything that I say

and everything that you say. And so if we can get some

ground rules on how we speak to each other it will make

her job a whole lot easier and we'll have a much clearer

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7

oath that you would take in a court of law in front of a

jury and a judge. Do you understand that?

A. Understood.

Q. So your obligation here as in court would be to

tell the whole truth to the best of your knowledge. Can

we agree on that?

A. Yes.

Q. And I want to be clear also, I'm not trying to

hide the ball, but if for some reason you were trying to

say X in answer to a question today and then in court

later after you've sworn the same oath you were to answer

Y, I'd be entitled to show the jury the transcript of

today's testimony and say, you know, you testified two

different ways under oath. And the reason I do that is to

imply that you might be being untruthful. Is that fair?

A. That's understood.

Q, Understood. May not be fair, but I want to be

clear on why we might do that. I don't want to hide the

ball for you. All right. Let's start with just a little

bit of background information for you. Your date of

birth?

A. May the 26, 1947.

Q. And for identification purposes the last four

numbers of your social security number?

A. 3465.

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chicken coop - okay. The chicken coop, maybe that was a

later deal, but that was a loss and I didn't have to fix

the coop in the first month. But water and some things.

I actually - I made some purchases right away, which

then -- see, and right now the way this list stands you

said I've made modifications to, that's true because this

is things not covered by the i. nsurance now is the way it

finally kind of broke out.

Q. So these are things - I want to make clear.

This does not include the things that the insurance

company paid for?

A. Yeah. This is just - that's correct. This is

only the things they didn't pay for. But that was all

unclear back then. Because your question was about this

list. So I'TO trying to remember the way this came to be.

But it was handwritten, it was a Big Chief Tablet. It

evolved and there was yeses and nos, subtractions, adds

and drops. And then this whole subrogation thing came in,

which I didn't understand. It was at some point where I

said I need some help here and that's when I contacted Mr.

Velte and said I'm lost here, I don't know what's going

on, I need some help.

Q. Let's talk a little bit about the different types

of property that were at your Ivy location and what

damages they sustained. Let's start with buildings. You

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N-t

NAMANHOWELL

SMTTH&LEE'1"

AHOKNIYS AT IAW

September 27, 2013

Via E-PUing

Ms. Dana DeBeauvoir

Travis County Courthouse

1000 Guadalupe, Room 21 1

Austin, Texas 78701

8310NCt»atElo(TBMiHwy

Suit* 00

Auitin. Texa»78731

IS1Z1479.83CO

ftX|5ia«74-iaB1

Office* in:

. Autlin

a Fort Worth

a Sin Antonio

.Waco

www. ftein»nh»w»ll s'vi

RE: Cause No. C.l-CV-12-008224; Don Titel and Carol

Titel vs. Jeremy David Melchor; In Ac County

Court at Law No. 2 ofTravis County, Texas

Finn FUe No. 34725. 500

Dear Ms. DeBeauvoir:

Please find enclosed a Motion for Suacwry Judgmcmt filed on behalf of Defendants

Jeremy David Melchor, Morris 0. Melchor and Lisa Melchor. A Notice of Hearing is

incorporated witfain the Motion, and reflects Ifaat this Motion is set for hearing on Tuesday,

October 29, 2013 at 9tW S.B*.

Pursuant to the Texas Rules of Civil Procedure, a copy of the Motion has been forwanJed

to all parties and counsel of record on this date.

Thank you for your assistance in this matter.

Very truly yours,

NAM^ HOWELL, SMITH & LEE, PLLC

JWO/jwg

Enclosure

(02569857. DOCX/)

[tUblilhcd 191? <j\
Ms. Dana DeBeauvoir

Travis County Courthouse

September 27, 2013

Page 2

ec: (w/eaclosure)

Paul C. Velte, FV

109E. HopkinsSt

Suite 204

San Mareos, Texas 78666

Mandy Edwards

693 Pickett Lane

Leaoder, TX 78641

Clients

SEWT VIA FACSIMILE TO: (512) 476-9504

SENT VIA CERTmED MAIL, RETURN RECBIPT REQUESTED

SENT VIA E-MAIL

(025<9tS7.DOCX/)

0