IN THE SUPREME COURT OF TEXAS APPENDIX TO PETITION FOR REVIEW by fdh56iuoui

VIEWS: 72 PAGES: 227

									                                 Case No. __________________


                 IN THE SUPREME COURT OF TEXAS

                         ISRAEL GARCIA, et al.,

                                                            Petitioners,

                                          v.
                         RICHARD GARZA, as Independent Executor of the Estate
                         of Homer Dean, Jr., Deceased, DEAN PARTNERS, LTD.,
                         and B.J. SHEPHERD,

                                                           Respondents.


        from the Fourth Court of Appeals District of Texas at San Antonio




               APPENDIX TO PETITION FOR REVIEW



Order (Granting Defendants Summary Judgment; Record at 2391-2392)...................... Tab 1

Opinion of the Court of Appeals, 2010 Tex. App. LEXIS 727
  (Tex. App.—San Antonio Feb. 3, 2010) .................................................................... Tab 2

December 1, 2008 Summary Judgment Hearing Transcript .......................................... Tab 3

Affidavit of Viola Garcia (one of 12 accompanying Plaintiffs’ Response to
   Defendants’ Motion for Summary Judgment); Record at 1846-1870) ..................... Tab 4

Plaintiffs’ Third Amended Original Petition; Record at 2051-2144) ............................. Tab 5

Plaintiffs’ Response to Defendants’ Supplemental Motion for Summary Judgment .... Tab 6
APPENDIX TAB 1
                                NO. 08-03-14557-CV

ISRAEL GARCIA, et al.                      §
                                           §
vs.                                        §
                                           §
HOMER E. DEAN, JR., et al.                 §'


                                        ORDER

       On December 1, 2008, came on to be considered the Defendants' Motion for

Summary and Supplemental Motion for Summary Judgment against all claims for

relief asserted in the above styled and numbered cause of action by Plaintiffs.

      After considering (a) Defendants' Motion for Summary Judgment, (b)

Plaintiffs' Response to Defendants' Motion for Summary Judgment, (c) Defendants'

Reply to Plaintiffs' Response, (d) Defendants' Supplemental Motion for Summary

Judgment and Motion for Leave, (e) the evidence before the Court on the summary

judgment record, (f) the authorities cited to the Court by the Plaintiffs and

Defendants and (g) the arguments of Plaintiffs' and Defendants' respective counsel,

the Court is of the opinion that Defendants' request for summary judgment should

in all things be GRANTED.

      IT IS, THEREFORE, ORDERED that Defendants are granted leave from the

twenty one day service requirement in TEX. R. CIV. P. 166a(c) and are entitled to

proceed forward and argue the summary judgment grounds in Defendants'

Supplemental Motion for Summary Judgment.




                                       2391
          IT IS ALSO ORDERED that the Defendants are entitled to a FULL AND FINAL

SUMMARY JUDGEMENT as to all claims of relief asserted by Plaintiffs in the above

styled and numbered cause of action.

      IT IS FURTHER ORDERED that the Plaintiffs shall take nothing on all claims

Plaintiffs asserted against Defendants in the above styled and numbered cause of

action.

      Signed this   ~ day of December,    2008.




                                       Presiding Judge of the 79th District Court




                                      2392
APPENDIX TAB 2
                                                                                                  Page 1




                                         1 of 1 DOCUMENT

             Israel GARCIA, et al., Appellants v. Richard GARZA, as Independent
              Executor of the Estate of Homer Dean, Jr., Deceased; Dean Partners,
                               Ltd.; and B.J. Shepherd, Appellees

                                         No. 04-09-00163-CV

                COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN
                                   ANTONIO

                                     2010 Tex. App. LEXIS 727


                                    February 3, 2010, Delivered
                                      February 3, 2010, Filed

PRIOR HISTORY: [*1]                                  OVERVIEW: The clients and clients' heirs
    From the 79th Judicial District Court,           claimed that both attorneys forced the clients to
Brooks County, Texas. Trial Court No.                execute a mineral deed in the attorneys' favor
09-03-14999-CV. Honorable Richard C. Ter-            without disclosing conflicts of interest. The tri-
rell, Judge Presiding.                               al court granted summary judgment to the at-
                                                     torneys and partnership and the court affirmed.
DISPOSITION:          AFFIRMED.                      The defense of laches was available as to the
                                                     breach of fiduciary duty and fraud claims and
CASE SUMMARY:                                        the summary judgment had to be upheld on this
                                                     ground. The mineral deed in question was not
                                                     void ab initio as argued by the clients and heirs.
PROCEDURAL POSTURE: Appellants,                      They did not direct the court to cases holding
clients and clients' heirs, sued appellees, attor-   that a violation of former Tex. Disciplinary R.
ney one, attorney two, and a partnership, alleg-     Prof. Conduct 5-103, 5-104 (superseded 1990)
ing in part causes of trespass to try title and      (current version at Tex. Disciplinary R. Prof.
breach of duty and seeking a trust and declara-      Conduct 1.08(a), (h), reprinted in Tex. Gov't
tory judgment. The 79th Judicial District Court,     Code Ann., tit. 2, subtit. G app. A (2005) (Tex.
Brooks County (Texas) granted the attorneys          State Bar R. art. X, sec. 9) were unenforceable
and partnership summary judgment under Tex.          or void as against public policy, and the court
R. Civ. P. 166a(c). The clients and heirs ap-        found none. The mineral deed was not void, but
pealed. Attorney one's representative was subs-      voidable. The four-year statute of limitations
tituted in his place.                                under Tex. Civ. Prac. & Rem. Code Ann. §
                                                     16.051 (2008) controlled and barred the claims
                                                     for trespass to try title and quiet title. The court
                                                                                                 Page 2
                                      2010 Tex. App. LEXIS 727, *



had to uphold the judgment on their remaining        to the non-movant to present issues which
claims.                                              preclude summary judgment. The non-movant
                                                     must expressly present to the trial court by
OUTCOME: The court affirmed.                         written answer or response any issues defeating
                                                     the movant's entitlement to summary judgment.
LexisNexis(R) Headnotes                              Both the reasons for the summary judgment
                                                     and the objections to it must be in writing and
                                                     before the trial judge at the hearing.

Civil Procedure > Pleading & Practice > De-
fenses, Demurrers & Objections > Affirmative         Civil Procedure > Summary Judgment > Ap-
Defenses > General Overview                          pellate Review > Standards of Review
Civil Procedure > Summary Judgment >                 [HN3] In reviewing a summary judgment, the
Burdens of Production & Proof > Absence of           appellate court must accept as true evidence in
Essential Element of Claim                           favor of the non-movant, indulging every rea-
Civil Procedure > Summary Judgment >                 sonable inference and resolving all doubts in
Standards > Genuine Disputes                         his or her favor. When the order granting sum-
Civil Procedure > Summary Judgment >                 mary judgment does not specify the particular
Standards > Legal Entitlement                        grounds the trial court sustained, the appellate
Civil Procedure > Summary Judgment >                 court must uphold the summary judgment on
Standards > Materiality                              any ground asserted by the movant that is sup-
[HN1] To prevail on a motion for summary             ported by the evidence and pleadings.
judgment, the movants must establish that there
is no genuine issue as to any material fact and
that they are entitled to judgment as a matter of    Civil Procedure > Summary Judgment > Mo-
law. Tex. R. Civ. P. 166a(c). A defendant who        tions for Summary Judgment > General
conclusively negates at least one of the essen-      Overview
tial elements of a cause of action is entitled to    Civil Procedure > Summary Judgment > Op-
summary judgment as to that cause of action.         position > Memoranda in Opposition
Similarly, a defendant who conclusively estab-       Civil Procedure > Summary Judgment > Time
lishes each element of an affirmative defense is     Limitations
entitled to summary judgment.                        [HN4] Tex. R. Civ. P. 166a, which governs
                                                     summary judgments, does not set a deadline for
                                                     a movant to file a reply to a non-movant's re-
Civil Procedure > Summary Judgment >                 sponse. Tex. R. Civ. P. 166a. According to case
Burdens of Production & Proof > Movants              law, the movant is entitled to file its reply until
Civil Procedure > Summary Judgment >                 the date of the summary judgment hearing. The
Burdens of Production & Proof > Nonmo-               movant, however, is not entitled to use its reply
vants                                                to amend its motion for summary judgment or
Civil Procedure > Summary Judgment > Mo-             to raise new and independent summary judg-
tions for Summary Judgment > Written Mo-             ment grounds.
tions
[HN2] Summary judgment motions must stand
or fall on their own merits. However, once the       Civil Procedure > Summary Judgment > Evi-
movant establishes his right to summary judg-        dence
ment as a matter of law, the burden then shifts
                                                                                                 Page 3
                                       2010 Tex. App. LEXIS 727, *



Civil Procedure > Summary Judgment >                  [HN8] The discovery rule is a very limited ex-
Supporting Materials > Affidavits                     ception to statutes of limitation and applies on-
Civil Procedure > Summary Judgment > Time             ly in those cases in which the nature of the in-
Limitations                                           jury is both inherently undiscoverable and ob-
[HN5] Tex. R. Civ. P. 166a(c) permits the late        jectively verifiable. The discovery rule excep-
filing of summary judgment proof with leave of        tion operates to defer the accrual of a cause of
court. Tex. R. Civ. P. 166a(c) provides that ex-      action until the plaintiff knows, or in the exer-
cept on leave of court, with notice to opposing       cise of reasonable diligence, should know of
counsel, the motion and any supporting affida-        the facts giving rise to the claim. Generally, the
vits shall be filed and served at least 21 days       discovery rule applies to breach of fiduciary
before the time specified for hearing. The trial      duty claims. However, even in the context of a
court has the discretion to control late filings in   fiduciary relationship, the plaintiff must still
summary judgment proceedings. It is appropri-         exercise reasonable diligence in discovering the
ate for the trial court to grant leave for the late   nature of the injury. While a person to whom a
filing of summary judgment proof when the             fiduciary duty is owed is relieved of the re-
summary judgment movant is attempting to              sponsibility of diligent inquiry into the fidu-
counter     arguments       presented    in     the   ciary's conduct, so long as that relationship ex-
non-movant's response.                                ists, when the fact of misconduct becomes ap-
                                                      parent it can no longer be ignored, regardless of
                                                      the nature of the relationship.
Civil Procedure > Appeals > Standards of Re-
view > Harmless & Invited Errors > Invited
Errors Doctrine                                       Civil Procedure > Pleading & Practice > De-
[HN6] A party cannot encourage the court to           fenses, Demurrers & Objections > Affirmative
take a particular action and then complain on         Defenses > Burdens of Proof
appeal that the trial court erred by taking it.       Civil Procedure > Summary Judgment >
                                                      Burdens of Production & Proof > Movants
                                                      Civil Procedure > Summary Judgment >
Governments > Legislation > Statutes of Li-           Burdens of Production & Proof > Nonmo-
mitations > Time Limitations                          vants
[HN7] The primary purpose of all limitation           Civil Procedure > Summary Judgment >
statutes is to compel the exercise of a right of      Standards > Genuine Disputes
action within a reasonable time so that the op-       Torts > Procedure > Statutes of Limitations >
posing party has a fair opportunity to defend         Accrual of Actions > Discovery Rule
while witnesses are available. It is in society's     [HN9] A defendant moving for summary
best interest to grant repose by requiring that       judgment on the affirmative defense of limita-
disputes be settled or barred within a reasona-       tions has the burden to conclusively establish
ble time.                                             that defense. When the plaintiff pleads the dis-
                                                      covery rule as an exception to limitations, the
                                                      defendant must negate that exception as well.
Business & Corporate Law > Agency Rela-               The defendant must (1) conclusively prove
tionships > Causes of Action & Remedies >             when the cause of action accrued, and (2) prove
Breach of Fiduciary Duty > Statutes of Limi-          as a matter of law that there is no genuine issue
tations                                               of material fact about when the plaintiff dis-
Torts > Procedure > Statutes of Limitations >         covered or, in the exercise of reasonable dili-
Accrual of Actions > Discovery Rule                   gence, should have discovered the nature of its
                                                                                                 Page 4
                                       2010 Tex. App. LEXIS 727, *



injury. If the defendant establishes that the sta-    Real Property Law > Deeds > General Over-
tute of limitations bars the action, the plaintiff    view
must then produce summary judgment proof              Real Property Law > Title Quality > Adverse
raising a fact issue in avoidance of the statute      Claim Actions > Quiet Title Actions
of limitations.                                       [HN12] The rule has long been that where a
                                                      deed is absolutely void, a suit at law in trespass
                                                      to try title may be maintained to recover the
Civil Procedure > Pleading & Practice > De-           land without setting the deed aside, and the
fenses, Demurrers & Objections > Affirmative          statutes of limitation governing actions for the
Defenses > Laches                                     recovery of land apply. On the other hand,
[HN10] Generally, in order to establish a laches      where a deed is merely voidable and the equity
defense, the defendants must show (1) the             powers of the court must first be invoked to
plaintiffs unreasonably delayed in asserting          cancel the deed before a suit can be maintained
their claim, and (2) the defendants have detri-       at law to recover the land, then the four-year
mentally changed their position because of the        statute controls. Therefore, it is necessary for
delay. The contours of the defense of laches          the court to decide whether the deed was void
have been described as follows: The applica-          or merely voidable in order to determine
tion of laches, however, is usually limited to        whether or not the suit was barred by limita-
cases arising out of equity or actions at law that    tion. The question of whether the deed is void
are essentially equitable in character. Laches is     or voidable depends on its effect upon the title
peculiarly available against the assertion of         at the time it was executed and delivered. If it
equitable rights, and may not be invoked to           was a mere nullity, passing no title and confer-
resist the enforcement of a purely legal right.       ring no rights whatsoever, it was absolutely
                                                      void. That which is void is without vitality or
                                                      legal effect. That which is voidable operates to
Business & Corporate Law > Agency Rela-               accomplish the thing sought to be accom-
tionships > Causes of Action & Remedies >             plished, until the fatal vice in the transaction
Breach of Fiduciary Duty > Remedies                   has been judicially ascertained and declared.
Civil Procedure > Equity > Relief
Estate, Gift & Trust Law > Trusts > Construc-
tive Trusts                                           Legal Ethics > General Overview
[HN11] Equitable remedies are available for           [HN13] See Tex. Disc. R. Prof. Conduct,
breach of fiduciary duty. The equitable reme-         pmbl., para. 15.
dies of constructive trust and profit disgorge-
ment are available for breach of fiduciary duty.
A constructive trust is an equitable remedy           Legal Ethics > General Overview
created by the courts to prevent unjust enrich-       [HN14] The Texas Disciplinary Rules of Pro-
ment. Actual fraud or breach of a confidential        fessional Conduct do not define standards for
relationship must be present to justify the im-       civil liability and do not give rise to private
position of a constructive trust. A suit for an       claims. Nonetheless, a court may deem these
accounting is generally founded in equity.            rules to be an expression of public policy, so
                                                      that a contract violating them is unenforceable
                                                      as against public policy. Although courts may,
Governments > Legislation > Statutes of Li-           and often have, used these rules as a measure of
mitations > Time Limitations                          public policy, they are not required to do so.
                                                                                              Page 5
                                     2010 Tex. App. LEXIS 727, *



                                                    back, The Ruback Law Firm, Dallas, TX; R. E.
Real Property Law > Deeds > Enforceability          Lopez, Jr., Lopez Peterson, P.L.L.C., Laredo,
[HN15] Deeds are void ab initio under very          TX.
limited circumstances. Forged deeds are void
ab initio; however, deeds obtained by fraud,        JUDGES: Opinion by: Karen Angelini, Jus-
fraudulent misrepresentation, undue influence,      tice. Sitting: Catherine Stone, Chief Justice,
or mutual mistake are not void, but voidable.       Karen Angelini, Justice, Marialyn Barnard,
                                                    Justice.

Civil Procedure > Summary Judgment > Ap-            OPINION BY: Karen Angelini
pellate Review > Appealability
[HN16] See Tex. R. Civ. P. 166a(c).                 OPINION
                                                        AFFIRMED
Civil Procedure > Summary Judgment > Ap-                In March 2008, Israel Garcia and other
pellate Review > Appealability                      members of the Garcia family filed suit against
[HN17] A party cannot raise new reasons why         Homer E. Dean Jr.; Dean Partners, Ltd.; 1 and
a summary judgment should have been denied          B.J. Shepherd, (hereinafter "Dean and Shephe-
for the first time on appeal.                       rd") concerning mineral interests conveyed to
                                                    Dean and Shepherd by members of the Garcia
                                                    family [*2] as attorneys' fees in 1975. Dean
Civil Procedure > Summary Judgment > Ap-            and Shepherd moved for summary judgment on
pellate Review > Appealability                      grounds of limitations, lack of privity, lack of
Civil Procedure > Summary Judgment > Ap-            standing, and laches. The trial court granted the
pellate Review > Standards of Review                summary judgment motion and signed a
[HN18] When an appellant fails to specifically      take-nothing judgment against the Garcias. The
challenge every ground raised in the motion for     Garcias appeal from this judgment. We affirm.
summary judgment, and fails to raise a general
issue contending the trial court erred in grant-           1   A partnership in which Homer E.
ing summary judgment, the summary judgment                 Dean Jr. was a general partner.
must be upheld.
                                                    FACTUAL AND PROCEDURAL BACK-
COUNSEL: For APPELLANT: Gary D.                     GROUND
Sarles, Sarles & Ouimet LLP, Dallas, TX; Al-            1. The 1975 Partition Suit
berto Byington Jr., Law Office of Alberto
Byington, Jr., Falfurrias, TX; J. Michael Guer-         In April 1975, attorneys Dean and Shepherd
ra, Law Office Of J. Michael Guerra, Alice,         began representation of twelve members of the
TX; Mark C. Brodeur, The Brodeur Law Firm,          Garcia family in a suit to partition land in
Dallas, TX; Roland L. Leon, Barker, Leon, &         Brooks County, Texas, known as Rancho Nu-
Fancher LLP, Corpus Christi, TX.                    evo and Rancho Salado. Even though they had
                                                    no written fee agreement with the Garcias,
For APPELLEE: Kyle C. Watson, Burton D.             Dean and Shepherd filed the partition suit and
Brillhart, John E. Clark, Goode Casseb Jones        reached a settlement agreement with the op-
Riklin Choate & Watson, P.C., San Antonio,          posing parties in the case. The settlement
TX; Armando G. Barrera, District Attorney -         agreement partitioned the surface estate but did
79th Judicial District, Alice, TX; Chad M. Ru-      not partition the mineral estate. On December
                                                                                                      Page 6
                                       2010 Tex. App. LEXIS 727, *



8, 1975, Dean and Shepherd presented the set-             2. The Present Suit
tlement agreement to the trial court. On De-              More than thirty-two years later, in March
cember 19, 1975, the trial court signed a final       2008, members of the Garcia family filed suit
judgment in the partition suit.                       against Dean and Shepherd, seeking to recover
    On December 16, 1975, after the settlement        the mineral interests conveyed to Dean and
agreement was presented to the trial court but        Shepherd in 1975. The plaintiffs in the present
before the final judgment was [*3] signed, the        suit included five members of the Garcia family
Garcias went to Dean's office, where they were        who were represented by Dean and Shepherd in
asked to sign various documents. One of these         the 1975 partition suit--Tomasita Ramos, Maria
documents was a written fee agreement. All but        Garcia, Gloria Garcia, Oscar Garcia, and Viola
two of the Garcias, Oscar and Viola Garcia,           Garcia. The plaintiffs in the present suit also
signed the fee agreement, which stated, in re-        included the heirs of other Garcia family
levant part,                                          members who were represented by Dean and
                                                      Shepherd in the 1975 partition suit, but died by
          It is hereby agreed by and be-              the time the present suit was filed.
      tween Homer E. Dean, Jr., and B.J.                  Initially, the Garcias' petition alleged six
      Shepherd, as attorneys, and . . .               causes of action: (1) a quiet title action; (2) a
      [the] clients of said attorneys, that           slander of title action; (3) a trespass to try title
      the following will be the total                 action; (4) an accounting action; (5) a construc-
      amount of attorneys' fees to be                 tive trust action; and (6) a declaratory judgment
      paid to said attorneys for their ser-           action. Later, the petition was amended to add
      vices in cause No. 2423 [sic] in the            causes of action for breach of fiduciary duty
      District Court of Brooks County,                and fraud. The breach of fiduciary duty and
      Texas, styled Jose A. Gonzales et               fraud claims, however, were brought only by
      al. vs. Tomasa G. Figueroa et al.:              the plaintiffs who had had an attorney-client
           Total attorneys' fees $ 5,000.00           relationship with Dean and Shepherd and had
      to be paid in cash and clients fur-             signed [*5] the mineral deed in 1975.
      thermore agree to execute to said                   The Garcias' claims were based on factual
      attorneys a mineral deed deeding                allegations that Dean and Shepherd:
      to said attorneys one-half (1/2) of
      the mineral interest acquired by                          -forced their clients to execute a
      each of said plaintiffs in a partition                 mineral deed in Dean's and
      of the property in the above en-                       Shepherd's favor without making
      titled and numbered cause . . . .                      full disclosure of their conflicts of
                                                             interest;
(emphasis added).                                                -impaired the interests of their
                                                             clients in the underlying litigation
    All of the Garcias, including Oscar and Vi-              because the mineral interests
ola Garcia, then signed a mineral deed convey-               should have been partitioned along
ing to Dean and Shepherd one-half of the min-                with the surface estate;
eral interests in the land in question. This min-
eral deed, dated December 16, 1975, was rec-                     -preferred their own improper
orded in the Brooks County deed [*4] records                 financial interest by keeping the
on December 23, 1975.                                        mineral estate undivided in the
                                                             partition suit, and thus, did not ful-
                                                                                                 Page 7
                                       2010 Tex. App. LEXIS 727, *



      fill their duties to their clients and          tiffs' claims, categorically, were not 'inherently
      protect their mineral interests;                undiscoverable.'"
          -misrepresented to their clients                On October 31, 2008, the Garcias amended
      in December 1975 that the mineral               their petition to include claims for breach of
      deed was necessary to complete                  fiduciary duty and fraud. 2 On the same day, the
      the partition of the property;                  Garcias filed a response to the summary judg-
          -failed to inform the trial court           ment motion. In the response, the Garcias ar-
                                                      gued their trespass to try title and quiet title
      of the grant of mineral interests to
      them;                                           claims were not [*7] subject to any statute of
                                                      limitations because the mineral deed was void
          -altered the partition deed after           ab initio. The Garcias also argued the statute of
      it was executed by their clients and            limitations did not bar their breach of fiduciary
      then misrepresented to their clients            duty claim because the discovery rule deferred
      the reasons for doing so;                       the accrual of their causes of action. In support
          -failed to disclose the value of            of this argument, the Garcias argued that the
      the mineral estate they wrongfully              family members who signed the fee agreement
      obtained from their clients.                    and deed in 1975 did so only because the nature
                                                      of these documents was misrepresented to
                                                      them.
    The Garcias' petition alleged the discovery              2 The fraud allegations were against
rule applied to defer the accrual of all of their            Dean only.
causes of action. Additionally, the petition al-
leged that the Garcias [*6] exercised reasona-            On November 20, 2008, Dean and Shephe-
ble diligence but did not discover the breaches       rd filed a supplemental motion for summary
of fiduciary duty and other wrongs against            judgment, arguing laches barred the Garcias'
them until November 2007.                             claims for breach of fiduciary duty and fraud.
    Dean and Shepherd answered the suit, de-              On November 25, 2008, Dean and Shephe-
nying the allegations in the petition. Shortly        rd filed a reply to the Garcias' response, ar-
after the suit was filed, Dean died and the per-      guing: (1) summary judgment should be
sonal representative of his estate--Richard           granted on the Garcias' title actions, accounting
Garza--was substituted in Dean's place.               action, constructive trust action, and declarato-
                                                      ry judgment action because limitations had ex-
   3. The Summary Judgment Proceedings                pired; and (2) the Garcias did not create a ge-
    On October 8, 2008, Dean and Shepherd             nuine issue of material fact with respect to their
filed a motion for summary judgment arguing,          breach of fiduciary duty and fraud claims be-
among other things, that all of the Garcias'          cause the Garcias had notice of Dean's and
claims were barred by the four-year statute of        Shepherd's claims to the mineral interests in
limitations. Dean and Shepherd further argued         1975 when the mineral deed was signed, [*8]
the discovery rule did not operate to defer the       as well as in 1980 when a mineral lease listing
statute of limitations because the deed was rec-      Dean and Shepherd as co-owners was signed.
orded in the deed records and "[b]ecause the . .         On December 1, 2008, the trial court held a
. [m]ineral [d]eed is a public record and consti-     hearing on the motion for summary judgment.
tutes public notice to the Plaintiffs, the Plain-     At the hearing, the Garcias complained they
                                                      had not received a copy of Dean's and Shephe-
                                                                                                 Page 8
                                     2010 Tex. App. LEXIS 727, *



rd's reply brief and any accompanying proof         grounds asserted and must, therefore, be re-
and they had not received the required twen-        versed and remanded for trial. First, the Garcias
ty-one days' notice of these documents and the      argue the summary judgment was procedurally
supplemental summary judgment motion. The           defective. Second, the Garcias argue Dean and
trial court then gave the Garcias two weeks to      Shepherd did not discharge their burden to ne-
file their response and deferred ruling on the      gate the discovery rule's application as a matter
summary judgment motions until after the Gar-       of [*10] law with respect to their breach of
cias had filed their response.                      fiduciary duty and fraud claims. Third, the
                                                    Garcias argue the summary judgment evidence
    On December 15, 2008, the Garcias filed a
                                                    was conflicting as to when the Garcias knew or
response, in which they "object[ed] to Defen-
                                                    should have known of their legal injury with
dants' Supplemental Motion for Summary
                                                    respect to their breach of fiduciary duty and
Judgment and Reply Brief to the extent that
                                                    fraud claims. Fourth, the Garcias argue the de-
they refer to and/or attach evidence not sub-
                                                    fense of laches was inapplicable to their breach
mitted to the Court at least twenty-one days
                                                    of fiduciary duty and fraud claims. Fifth, the
prior to the December 1, 2008 hearing on De-
                                                    Garcias argue the defense of limitations was
fendants' Motion for Summary Judgment, as
                                                    inapplicable to their trespass to try title and suit
required by Rule 166a(c) of the Texas Rules of
                                                    to quiet title claims because the perpetual min-
Civil Procedure." Additionally, the Garcias
                                                    eral deed was void ab initio. Sixth, the Garcias
complained that by arguing the discovery rule
                                                    argue the summary judgment was insupportable
applied but did not defer the accrual of the
                                                    on the ground of lack of privity because privity
causes of action, Dean and Shepherd imper-
                                                    was not required for their claims. Finally, the
missibly presented a new [*9] and indepen-
                                                    Garcias argue the summary judgment was in-
dent ground for summary judgment in their re-
                                                    supportable on the ground of lack of standing
ply. Finally, the Garcias argued summary
                                                    because the breach of fiduciary duty and fraud
judgment could not be granted on the ground of
                                                    claims were brought only by former clients and
laches because (1) as to the legal claims of
                                                    they have standing to bring suit.
breach of fiduciary duty and fraud, laches did
not apply, and (2) as to the equitable claims of        In response to the issues presented on ap-
constructive trust and accounting, controverting    peal, Dean and Shepherd make three categories
evidence created a fact issue as to whether the     of arguments. First, Dean and Shepherd argue
Garcias unreasonably delayed in asserting their     the summary judgment was properly granted on
rights, and therefore, laches was not estab-        the ground of limitations as to the causes of ac-
lished.                                             tion for (1) suit to [*11] quiet title, (2) slander
                                                    of title, (3) trespass to try title, (4) accounting,
    On December 18, 2008, the trial court
                                                    (5) constructive trust, and (6) declaratory
signed an order granting summary judgment in
                                                    judgment. In support of this argument, Dean
favor of Dean and Shepherd as to all claims.
                                                    and Shepherd assert they established their limi-
The order expressly grants Dean and Shepherd
                                                    tations defense because the mineral deed was
"leave from the twenty[-]one day service re-
                                                    not void ab initio, but merely voidable. Second,
quirement in TEX. R. CIV. P. 166a(c)." The
                                                    Dean and Shepherd argue the summary judg-
order does not specify the ground or grounds
                                                    ment was properly granted on the ground of
upon which summary judgment was granted.
                                                    laches as to their breach of fiduciary duty and
                                                    fraud claims. In support of this argument, Dean
ISSUES PRESENTED
                                                    and Shepherd assert the breach of fiduciary
   In seven issues, the Garcias argue the           duty and fraud claims, as presented in this case,
summary judgment is insupportable on the            are not purely legal claims. Finally, Dean and
                                                                                                Page 9
                                      2010 Tex. App. LEXIS 727, *



Shepherd argue the summary judgment was              in favor of the non-movant, indulging every
properly granted on the grounds of limitations       reasonable inference and resolving all doubts in
and laches, and therefore, the standing and          his or her favor. El Chico Corp. v. Poole, 732
privity issues are unnecessary to the disposition    S.W.2d 306, 315 (Tex. 1987). When the order
of this appeal.                                      granting summary judgment does not specify
                                                     the particular grounds the trial court sustained,
SUMMARY JUDGMENT STANDARDS                           the appellate court must uphold the summary
                                                     judgment on any ground asserted by the mo-
    [HN1] To prevail on a motion for summary
                                                     vant that is supported by the evidence and
judgment, the movants must establish that there
                                                     pleadings. Carr v. Brasher, 776 S.W.2d 567,
is no genuine issue as to any material fact and
                                                     569 (Tex. 1989).
that they are entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Randall's Food            "UNTIMELY" REPLY AND SUMMARY
Markets, Inc. v. Johnson, 891 S.W.2d 640, 644        JUDGMENT PROOF
(Tex.1995). A defendant who conclusively ne-             In their first issue, the Garcias argue the
gates at least one of the essential [*12] ele-       summary judgment "on Appellants' breach of
ments of a cause of action is entitled to sum-       fiduciary duty and fraud claims simply cannot
mary judgment as to that cause of action. Ran-       be sustained based on untimely, improper-
dall's, 891 S.W.2d at 644; Wornick Co. v. Ca-        ly-asserted arguments about the discovery rule
sas, 856 S.W.2d 732, 733 (Tex.1993). Similarly,      in the Appellees' Reply Brief." In particular, the
a defendant who conclusively establishes each        Garcias argue the summary judgment is proce-
element of an affirmative defense is entitled to     durally defective because the trial judge al-
summary judgment. Randall's, 891 S.W.2d at           lowed Dean and Shepherd to raise a new sum-
644.                                                 mary judgment ground in their reply brief and
    [HN2] Summary judgment motions must              to file summary judgment evidence after
stand or fall on their own merits. McConnell v.      [*14] the deadline under the procedural rules.
Southside Indep. School Dist., 858 S.W.2d 337,
                                                         1. Applicable Law
343 (Tex. 1993); City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.             [HN4] Texas Rule of Civil Procedure 166a,
1979). However, once the movant establishes          which governs summary judgments, does not
his right to summary judgment as a matter of         set a deadline for a movant to file a reply to a
law, the burden then shifts to the non-movant to     non-movant's response. TEX. R. CIV. P. 166a;
present issues which preclude summary judg-          Cmty. Initiatives, Inc. v. Chase Bank of Texas,
ment. Romo v. Texas Dept. of Transp., 48             153 S.W.3d 270, 280 (Tex. App.--El Paso 2004,
S.W.3d 265, 269 (Tex. App.--San Antonio 2001,        no pet.). According to case law, the movant is
no pet.) (citing Clear Creek, 589 S.W.2d at          entitled to file its reply until the date of the
678). The non-movant must expressly present          summary judgment hearing. Chase Bank, 153
to the trial court by written answer or response     S.W.3d at 280. The movant, however, is not
any issues defeating the movant's entitlement to     entitled to use its reply to amend its motion for
summary judgment. McConnell, 858 S.W.2d at           summary judgment or to raise new and inde-
343; Clear Creek, 589 S.W.2d at 677 ("[B]oth         pendent summary judgment grounds. Callag-
[*13] the reasons for the summary judgment           han Ranch, Ltd. v. Killam, 53 S.W.3d 1, 4 (Tex.
and the objections to it must be in writing and      App.--San Antonio 2000, pet. denied); Sanders
before the trial judge at the hearing.").            v. Capitol Area Council, Boy Scouts of Am.,
                                                     930 S.W.2d 905, 911 (Tex. App.--Austin 1996,
    [HN3] In reviewing a summary judgment,           no writ).
the appellate court must accept as true evidence
                                                                                               Page 10
                                       2010 Tex. App. LEXIS 727, *



     [HN5] Texas Rule of Civil Procedure              knew or should have known of the facts under-
166a(c) permits the late filing of summary            lying their claims in 1975 or, at the latest, in
judgment proof with leave of court. See TEX.          1980. Given the progression of the arguments
R. CIV. P. 166a(c) ("Except on leave of court,        in this case, the discovery rule argument made
with notice to opposing counsel, the motion           in Dean's and Shepherd's reply brief--that the
and any supporting affidavits shall be filed and      Garcias knew or should have known of the
served at least twenty-one days before the time       facts forming the basis of their injury in 1975
specified for hearing."); Benchmark Bank v.           or 1980--was not a new and independent
Crowder, 919 S.W.2d 657, 663 (Tex. 1996);             ground for summary judgment. We conclude
[*15] Valores Corporativos, S.A. de C.V. v.           Dean and Shepherd did not impermissibly raise
McLane Co., Inc., 945 S.W.2d 160, 162 (Tex.           a new and independent summary judgment
App.--San Antonio 1997, writ denied). The trial       ground in their reply brief.
court has the discretion to control late filings in       Second, the Garcias contend the summary
summary judgment proceedings. Carpenter v.            judgment proof attached to Dean's and
Cimarron Hydrocarbons Corp., 98 S.W.3d 682,           Shepherd's reply brief could not have been
685 (Tex. 2002). It is appropriate for the trial      considered in support of the summary judgment
court to grant leave for the late filing of sum-      because it was not served at least twenty-one
mary judgment proof when the summary                  days before the hearing, and the trial court's
judgment movant is attempting to counter ar-          order granted leave only as to the supplemental
guments presented in the non-movant's re-             motion and not the [*17] proof attached to the
sponse. See Lawler v. Dallas Statler-Hilton           reply brief. We disagree. The record shows the
Joint Venture, 793 S.W.2d 27, 29-30 (Tex.             Garcias objected to the evidence attached to the
App.--Dallas 1990, writ denied) (holding the          supplemental summary judgment motion and
trial court did not err in granting leave to file     the reply brief based on non-compliance with
supplemental affidavits less than twenty-one          the twenty-one day service requirement. In its
days before the summary judgment hearing).            summary judgment order, the trial court
   2. Analysis                                        granted Dean and Shepherd leave from the
                                                      twenty-one day service requirement. The order
    First, the Garcias contend the summary
                                                      states, "IT IS, THEREFORE, ORDERED that
judgment was procedurally defective because
                                                      Defendants are granted leave from the twen-
Dean and Shepherd raised a new and indepen-
                                                      ty[-]one day service requirement in TEX. R.
dent ground--the application of the discovery
                                                      CIV. P. 166a(c) and are entitled to proceed
rule--in their reply brief. In their summary
                                                      forward and argue the summary judgment
judgment motion, Dean and Shepherd argued
                                                      grounds in Defendants' Supplemental Motion
(1) the discovery rule did not apply to defer the
                                                      for Summary Judgment." This order does not
Garcias' claims because their injury was not
                                                      limit the granting of leave to the proof attached
"inherently undiscoverable," and (2) the Gar-
                                                      to the supplemental summary judgment motion.
cias had constructive notice of any injury
[*16] because the mineral deed was recorded in            Additionally, the record shows the Garcias'
the public deed records. In their response, the       attorney agreed to the summary judgment pro-
Garcias argued they could not have had con-           cedure employed by the trial court. At the
structive notice of their injury based on the         summary judgment hearing, the following ex-
public deed records. In their reply, Dean and         change took place between the Garcias' attor-
Shepherd then countered that even if the dis-         ney, Mr. Sarles; the trial court; and Dean's and
covery rule did apply, it did not defer the ac-       Shepherd's attorney, Mr. Watson:
crual of the Garcias' claims because the Garcias
                                                                                             Page 11
                                 2010 Tex. App. LEXIS 727, *



   Mr. Sarles: First of all, Your                          The Court: Yeah. That
Honor, . . . I think I have an objec-                  wouldn't be part of the summary
tion, but I'm not sure. Apparently,                    judgment proof is what you're
counsel's referring to a reply brief                   seeking [sic]; [*19] is that cor-
[*18] that was filed with the Court                    rect?
that has not been served on me. . . .                      Mr. Sarles: That's correct, Your
If it was served within the last                       Honor. My point was I heard from
week, it obviously wasn't served                       counsel that there was an Exhibit E
21 days before the hearing.                            to the reply, and if there are exhi-
    The Court: Reply brief, Coun-                      bits attached to the reply, we object
sel?                                                   to it. We're entitled to 21 days' no-
                                                       tice on it. On the Supplemental
    Mr. Watson: Yes, Judge. I
                                                       Motion the same thing, Your Hon-
mentioned my reply. That was
                                                       or. The laches issue has been
filed last Tuesday. Now, there--I
                                                       raised here at the eleventh hour.
don't believe there's a rule on a re-
                                                       The Court moved this hearing ac-
ply to a response . . . in fact, I'm
                                                       tually--
certain there's not.
                                                            The Court: Well--well, let me
     Mr. Sarles: Well, I'm certain
                                                       tell you . . . my inclination is, be-
there is, Your Honor, and that is
                                                       cause what we're doing here cer-
this: If they've attached evidence to
                                                       tainly is not evidentiary, it's simply
that reply, exhibits to that, those
                                                       argument. I've got to consider . . .
documents had to be filed 21 days
                                                       the motions and the responses and .
before today's hearing. They can
                                                       . . the appropriate . . . summary . . .
file a reply, they can argue the law,
                                                       judgment proof attached to those.
they can show up with the law and
                                                       But as far as the Supplemental
argue the law, obviously, but
                                                       Motion for Summary Judgment, I
what--
                                                       don't want to bring everybody back
   The Court: Well, you--                              down here. How long will it take
    Mr. Sarles: --they can't do is                     for you to provide a response to
put it in evidence.                                    that and I'll just take it on submis-
                                                       sion?
    The Court: Well, the reply
brief is simply briefing of the law.                      Mr. Sarles: I would think, Your
                                                       Honor, if we have a couple of
   Mr. Watson: That's correct.                         weeks to respond to it.
    The Court: Is it anything more                         The Court: Fourteen days?
than that, counsel?
                                                          Mr. Sarles: That would be
    Mr. Watson: Well, contained in                     more than sufficient.
the reply is also directions to why
we believe they're sham affidavits                         The Court: I won't make any
and we object to them. But . . . we                    ruling on the . . . Supplemental
can urge an objection to something                     Motion for Summary Judgment,
in the response through the reply.                     and I'll allow you 14 days to file a
                                                                                              Page 12
                                     2010 Tex. App. LEXIS 727, *



      response from today's date, De-               ANN. § 16.051 (Vernon 2008). "[HN7] [T]he
      cember [*20] 15, to get that filed.           primary purpose of . . . all limitation statutes[]
                                                    is to compel the exercise of a right of action
         Mr. Sarles: Fine.
                                                    within a reasonable time so that the opposing
         The Court: On or before De-                party has a fair opportunity to defend while
      cember 15th then.                             witnesses are available." Moreno v. Sterling
         Mr. Sarles: That'll be fine, Your          Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990);
      Honor.                                        see Sanchez v. Archdiocese of San Antonio, 873
                                                    S.W.2d 87, 90 (Tex. App.--San Antonio 1994,
                                                    writ denied). "It is in society's best interest to
(emphasis added).                                   grant repose by requiring that disputes be set-
                                                    tled or barred within a reasonable time."
    Given that the Garcias acquiesced to the        Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d
procedure employed by the trial court, they are     732, 734 (Tex. 2001).
in no position to complain about it on appeal.
[HN6] "A party cannot encourage the court to            [HN8] The discovery rule is a very limited
take a particular action and then complain on       exception to statutes of limitation and applies
appeal that the trial court erred by taking it."    only in those cases in which the nature of the
Doucet v. Owens-Corning Fiberglas Corp., 966        injury is both inherently undiscoverable and
S.W.2d 161, 165 (Tex. App.--Beaumont 1998,          objectively verifiable. Id. The discovery rule
pet. denied); see also Everest Exploration, Inc.    exception operates to defer the accrual of a
v. URI, Inc., 131 S.W.3d 138, 142 n. 1 (Tex.        cause of action until the plaintiff knows, or in
App.--San Antonio 2004, no pet.) (holding af-       the exercise of reasonable diligence, should
fidavits were part of summary judgment record       know of the facts giving rise to the claim. Id.
and would not be disregarded on appeal when         Generally, [*22] the discovery rule applies to
the affidavits were filed pursuant to procedures    breach of fiduciary duty claims. See S.V. v.
set forth in an agreed order). And, as shown        R.V., 933 S.W.2d 1, 8 (Tex. 1996). However,
above, the trial court not only allowed Dean        even in the context of a fiduciary relationship,
and Shepherd to file their supplemental sum-        the plaintiff must still exercise reasonable dili-
mary judgment motion, reply brief, and ac-          gence in discovering the nature of the injury.
companying proof, it also gave the Garcias an       See id. ("While a person to whom a fiduciary
opportunity to respond to these documents.          duty is owed is relieved of the responsibility of
                                                    diligent inquiry into the fiduciary's conduct, so
     We conclude the summary judgment is not        long as that relationship exists, when the fact of
procedurally defective and overrule the Garcias'    misconduct becomes apparent it can no longer
first issue.                                        be ignored, regardless of the nature of the rela-
                                                    tionship.").
BREACH OF FIDUCIARY DUTY AND
FRAUD CLAIMS                                            [HN9] A defendant moving for summary
                                                    judgment on the affirmative defense of limita-
   1. Limitations                                   tions has the burden to conclusively establish
   a. Applicable [*21] Law                          that defense. KPMG Peat Marwick v. Harrison
                                                    County Hous. Fin. Corp., 988 S.W.2d 746, 748
    In their motion for summary judgment,           (Tex.1999). When the plaintiff pleads the dis-
Dean and Shepherd argued the Garcias' claims        covery rule as an exception to limitations, the
were barred by the four-year statute of limita-     defendant must negate that exception as well.
tions. See TEX. CIV. PRAC. & REM. CODE              Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,
                                                                                                Page 13
                                      2010 Tex. App. LEXIS 727, *



223 (Tex.1999). The defendant must (1) con-          delay. Wayne v. A.V.A. Vending, Inc., 52
clusively prove when the cause of action ac-         S.W.3d 412, 415 (Tex. App.--Corpus Christi
crued, and (2) prove as a matter of law that         2001, pet. denied); Green v. Parrack, 974
there is no genuine issue of material fact about     S.W.2d 200, 203-04 (Tex. App.--San Antonio
when the plaintiff discovered or, in the exercise    1998, no writ). The contours of the defense of
of reasonable [*23] diligence, should have           laches have been described as follows:
discovered the nature of its injury. KPMG Peat
Marwick, 988 S.W.2d at 748. If the defendant                   The application of laches,
establishes that the statute of limitations bars            however, is usually limited to cas-
the action, the plaintiff must then produce                 es arising out of equity or actions
summary judgment proof raising a fact issue in              at law that are essentially equita-
avoidance of the statute of limitations. Id.                ble in character. Furthermore, this
                                                            Court has held "laches . . . [is] pe-
   b. Issues Presented
                                                            culiarly available against the asser-
    In their second issue, the Garcias argue the            tion of equitable rights, and may
summary judgment was improper as to the                     not be invoked to resist the en-
breach of fiduciary duty and fraud claims be-               forcement of a purely legal right."
cause Dean and Shepherd did not discharge                   The present case is a claim for
their burden to negate the discovery rule as a              breach of contract, a legal right.
matter of law. In their third issue, the Garcias            Appellant has a complete, ade-
argue the trial court's grant of summary judg-              quate, legal remedy in a suit for
ment was improper because there was conflict-               damages for the alleged breach of
ing evidence on the issue of the Garcias'                   the lease [*25] agreement. Ap-
"knowledge" of the fraud and breach of fidu-                pellant seeks a legal remedy,
ciary duty. Thus, the Garcias contend Dean and              money damages for back rent and
Shepherd failed to prove as a matter of law that            appellee's alleged failure to main-
there was no genuine issue of material fact                 tain the property. This is a claim
about when the Garcias discovered or, in the                based in law, no specific perfor-
exercise of reasonable diligence, should have               mance or injunctive relief is re-
discovered the nature of their injury. In re-               quested . . . . We conclude that the
sponse, Dean and Shepherd argue if the sum-                 defense of laches does not apply in
mary judgment was proper on the ground of                   this case.
laches, this court need not address whether
Dean and Shepherd met their burden to [*24]
negate the discovery rule as to the breach of        Wayne, 52 S.W.3d at 415 (citations omitted)
fiduciary duty and fraud claims. We agree, and       (emphasis added).
therefore, turn to the issue of whether summary
                                                         [HN11] Equitable remedies are available
judgment was proper on the ground of laches.
                                                     for breach of fiduciary duty. Int'l Bankers Life
   2. Laches                                         Ins. Co. v. Holloway, 368 S.W.2d 567, 584
   a. Applicable Law                                 (Tex. 1963) (holding the trial court properly
                                                     imposed punitive damages as an equitable re-
    [HN10] Generally, in order to establish a        medy for breach of fiduciary duty); In re Kerr,
laches defense, the defendants must show (1)         293 S.W.3d 353, 358 (Tex. App.--Beaumont
the plaintiffs unreasonably delayed in asserting     2009, orig. proceeding [mand. denied]) (noting
their claim, and (2) the defendants have detri-      equitable remedies of constructive trust and
mentally changed their position because of the       profit disgorgement are available for breach of
                                                                                                Page 14
                                       2010 Tex. App. LEXIS 727, *



fiduciary duty). A constructive trust is an           case, which is equitable in character. See Bur-
equitable remedy created by the courts to pre-        row v. Arce, 997 S.W.2d 229, 245-46 (Tex.
vent unjust enrichment. Medford v. Medford,           1999) (stating"[i]n a [fee] forfeiture case the
68 S.W.3d 242, 248 (Tex. App.--Fort Worth             value of the legal services rendered does not, as
2002, no pet.). Actual fraud or breach of a con-      we have explained, dictate either the availabil-
fidential relationship must be present to justify     ity of the remedy or amount of the forfeiture.
the imposition of a constructive trust. Meadows       Both decisions are inherently equitable and
v. Bierschwale, 516 S.W.2d 125, 128 (Tex.             must thus be made by the court.") (emphasis
1974). A suit for an accounting is generally          added).
[*26] founded in equity. Southwest Livestock &
                                                          c. Analysis
Trucking Co. v. Dooley, 884 S.W.2d 805, 809
(Tex. App.--San Antonio 1994, writ denied).               An examination of the petition in this case
                                                      shows the Garcias' claims and theories of re-
   b. Issues Presented                                covery are largely intertwined. For example,
    In their fourth issue, the Garcias argue the      the Garcias' trespass to try title and quiet title
summary judgment was insupportable on the             allegations are predicated on their breach of
ground of laches as to their claims of breach of      fiduciary duty and fraud allegations. Addition-
fiduciary duty and fraud. The Garcias do not          ally, the Garcias seek substantial equitable re-
argue Dean and Shepherd failed to establish the       lief in their petition. The Garcias' live plead-
elements of laches. Instead, the Garcias argue        ing--their third amended petition--states:
laches does not apply to their breach of fidu-        "Plaintiffs bring this action to redress [*28]
ciary duty and fraud claims because these             the substantial wrong done to them by their at-
claims are purely legal, not equitable, in cha-       torneys and their family members, through
racter. To support this argument, the Garcias         fraud, breach of fiduciary obligations, and
cite cases holding the defense of laches did not      slander of title by quieting title to the subject
apply to claims involving the enforcement of          property. Plaintiffs seek actual damages, puni-
purely statutory rights. See, e.g., Tex. Attorney     tive damages, an order quieting title, an ac-
General v. Daurbigny, 702 S.W.2d 298, 300-01          counting, and the imposition of a constructive
(Tex. App--Houston [1st Dist.] 1985, no writ)         trust." And, the prayer of the petition states,
(holding laches was unavailable as a defense to
a suit enforcing the statutory duty of a parent to              WHEREFORE, Plaintiffs re-
support his children); Ex parte Payne, 598                   quest that Defendants be cited to
S.W.2d 312, 318 (Tex. Civ. App.--Texarkana                   appear and answer and that on fi-
1980, orig. proceeding) (holding defense of                  nal trial Plaintiffs have:
laches did not apply when the petitioner sought                  1. For each and every legal
to enforce a purely statutory right--child sup-              cause of action set forth above,
port contempt proceedings under the Texas                    actual damages in excess of the ju-
[*27] Family Code) disapproved on other                      risdictional limits of this Court in
grounds by Huff v. Huff, 648 S.W.2d 286, 290                 recompense for the losses de-
(Tex. 1983).                                                 scribed above;
    Dean and Shepherd counter the summary                       2. For each and every legal
judgment was supportable on the ground of                    cause of action set forth above in
laches because the Garcias' breach of fiduciary              which punitive damages are re-
duty and fraud claims were essentially equita-               quested, punitive damages against
ble in character. Dean and Shepherd also argue               Dean and Shepherd in an amount
the Garcias' suit is essentially a fee forfeiture
                                                                                                 Page 15
                                      2010 Tex. App. LEXIS 727, *



      equal to the maximum amount al-                    In their fifth issue, the Garcias argue the
      lowable under Texas law;                       summary judgment cannot be sustained as to
                                                     their trespass to try title and quiet title claims
          3. An Order of this Court re-
                                                     because the mineral deed was void ab initio. In
      quiring a full accounting of all
                                                     their responses [*30] to the motion for sum-
      books, records, revenues, ex-
                                                     mary judgment, the Garcias argued the statute
      penses, transfers, gifts, trusts and
                                                     of limitations did not apply to them because the
      assignments of interest in the
                                                     mineral deed was void ab initio. The corner-
      Rancho Nuevo and Salado Ranch
                                                     stone of this argument is a case in which the
      properties as requested above;
                                                     Texas Supreme Court concluded a trustee's
           4. A Judgment decreeing a                 deed was "absolutely void" because there was
      constructive trust on the property             no default by the debtor and the deed of trust
      described in this petition, with the           authorized the sale only upon default by the
      defendant as constructive [*29]                debtor. Slaughter v. Qualls,139 Tex. 340, 162
      trustee for the benefit of the Plain-          S.W.2d 671, 675 (Tex. 1942). After concluding
      tiffs;                                         the deed was absolutely void because the trus-
          5. A Judgment ordering De-                 tee had no authority to convey the land, the su-
      fendants, as constructive trustees,            preme court held the trespass to try title suit
      to convey the property described in            was not barred by limitations. Id. As explained
      this petition to Plaintiffs . . . .            in Slaughter:

                                                                [HN12] The rule has long been .
(emphasis added).                                           . . that where a deed is absolutely
                                                            void, a suit at law in trespass to try
    At oral argument, the Garcias cited several             title may be maintained to recover
paragraphs in their petition which they contend             the land without setting the deed
show that they seek to recover monetary dam-                aside, and the statutes of limitation
ages--a legal remedy--for their breach of fidu-             governing actions for the recovery
ciary duty and fraud claims. An examination of              of land apply. On the other hand,
these paragraphs, however, shows that mone-                 where a deed is merely voidable
tary damages are not requested as an indepen-               and the equity powers of the court
dent, alternative remedy, but rather are re-                must first be invoked to cancel the
quested in conjunction with the equitable re-               deed before a suit can be main-
medies requested.                                           tained at law to recover the land,
    As presented in their petition, the Garcias'            then the four-year statute . . . con-
breach of fiduciary duty and fraud claims are               trols. Therefore, it is necessary for
not purely legal claims. We, therefore, hold the            us to decide whether [*31] the
defense of laches was available as to the Gar-              trustee's deed was void or merely
cias' breach of fiduciary duty and fraud claims,            voidable in order to determine
and the summary judgment must be upheld on                  whether or not the suit was barred
this ground. We overrule the Garcias' second,               by limitation.
third, and fourth issues.                                       The question of whether the
                                                            trustee's deed is void or voidable
TRESPASS TO TRY TITLE AND QUIET                             depends on its effect upon the title
TITLE CLAIMS                                                at the time it was executed and de-
                                                            livered. If it was a mere nullity,
                                                                                                Page 16
                                       2010 Tex. App. LEXIS 727, *



      passing no title and conferring no
      rights whatsoever, it was abso-                 STATE BAR OF TEXAS, RULES AND
      lutely void, but if it passed title to          CODE OF PROFESSIONAL RESPONSIBIL-
      Mrs. Slaughter, the purchaser,                  ITY, DR 5-103, 34 TEX. B.J. 757, 766 (1971,
      subject only to the right of Qualls             superseded 1990) (current version at TEX.
      to have it set aside upon proof that            DISCIPLINARY R. PROF'L CONDUCT
      the sale was improperly made, then              1.08(h), reprinted in TEX. GOV'T CODE
      it was merely voidable.                         ANN., tit.2, subtit. G app. A (Vernon 2005)
                                                      (TEX. STATE BAR RULE art. X, § 9)).
                                                          In 1975, DR5-104, entitled "Limiting
Id. at 674 (emphasis added). The supreme court        Business Relations with a Client," stated in re-
further explained, "[t]hat which is void is           levant part:
without vitality or legal effect. That which is
voidable operates to accomplish the thing                       (A) A lawyer shall not enter in-
sought to be accomplished, until the fatal vice              to a business transaction with a
in the transaction has been judicially ascer-                client if they have differing inter-
tained and declared." Id. at 676 (citation omit-             ests therein and if the client ex-
ted).                                                        pects the lawyer to exercise his
    Here, the Garcias argue the mineral deed                 professional judgment therein for
was void ab initio because in obtaining the                  the protection of the client, unless
deed Dean and Shepherd violated two of the                   the client has consented after full
Texas disciplinary rules in effect at the time the           disclosure.
deed was executed. The two disciplinary rules
in question are former DR 5-103 and DR
5-104. In 1975, DR 5-103, entitled "Avoiding          STATE BAR OF TEXAS, RULES AND
Acquisition of [*32] Interest in Litigation,"         CODE OF PROFESSIONAL RESPONSIBIL-
stated:                                               ITY, DR 5-104, 34 TEX. B.J. 757, 766-67
                                                      (1971, superseded 1990) (current version at
         (A) A lawyer shall not acquire a             TEX. DISCIPLINARY R. PROF'L CONDUCT
      proprietary interest in the cause of            1.08(a), reprinted [*33] in TEX. GOV'T
      action or the subject matter of liti-           CODE ANN., tit.2, subtit. G app. A (Vernon
      gation he is conducting for a client,           2005) (TEX. STATE BAR RULE art. X, § 9)).
      except that he may:                                 In response, Dean and Shepherd contend
                                                      there was no violation of the disciplinary rules.
                (1) Acquire a lien                    Specifically, Dean and Shepherd contend they
             granted by law to se-                    did not violate these rules because by the time
             cure his fee or ex-                      the deed was signed by the Garcias, the parti-
             penses.                                  tion suit had been settled and Dean and
                 (2) Contract with a                  Shepherd were no longer "conducting litiga-
             client for a reasonable                  tion." We find it unnecessary to address the
             contingent fee in a                      merits of this contention.
             civil case.                                  The Garcias argue the mineral deed is "ca-
                                                      tegorically 'void' rather than 'voidable[]' be-
                                                      cause it was procured as the result of violations
                                                      of two applicable disciplinary rules for Texas
                                                                                                  Page 17
                                       2010 Tex. App. LEXIS 727, *



attorneys, DR 5-103 and DR 5-104." The Gar-                  unenforceable as against public
cias further argue "[a]ny contract that violates             policy. Although courts may, and
public policy is void and in 1975 the Texas                  often have, used these rules as a
Disciplinary Rules constituted the 'public poli-             measure of public policy, they are
cy' of the State of Texas." We are unpersuaded               not required to do so.
by the Garcias' premise that a violation of DR
5-103 or DR 5-104 would have automatically
rendered the mineral deed in this case void ab        Dardas v. Fleming, Hovenkamp & Grayson,
initio. For the following reasons, we conclude        P.C., 194 S.W.3d 603, 613 (Tex. App.--Houston
the mineral deed in this case was not void ab         [14th Dist.] 2006, pet. denied) (citations omit-
initio as argued by the Garcias. 3                    ted) (emphasis added); see also Wright v. Sy-
                                                      dow, 173 S.W.3d 534, 549 (Tex. App.--Houston
      3    During oral argument, Dean's and           [14th Dist.] 2004, pet. denied) (holding that a
      Shepherd's [*34] counsel remarked that          settlement agreement would be enforced even
      if a disciplinary rule had been violated,       if it were executed in violation of a Texas Dis-
      then the mineral deed would "arguably"          ciplinary Rule of Professional Conduct and
      be void and limitations would not apply.        stating that a violation of one of these rules
      This remark has no effect on our disposi-       does not necessarily void a contract); Primrose
      tion of this issue. First, counsel stated the   Operating Co., Inc. v. Jones, 102 S.W.3d 188,
      mineral deed would "arguably" be void,          193 (Tex. App.--Amarillo 2003, pet. denied)
      and therefore, the remark was qualified.        (stating that disciplinary rules govern
      Second, under our analysis we do not            non-disciplinary proceedings only to the extent
      reach the issue of whether any discipli-        that they manifest public policy).
      nary rule was violated.                              Second, the Garcias direct our attention to
    First, the preamble to the current Rules of       several cases in which Texas courts have con-
Professional Conduct states "[HN13] [t]hese           cluded that agreements violating other discip-
rules do not undertake to define standards of         linary rules were unenforceable and void as
civil liability of lawyers for professional con-      against public policy. See, e.g., Johnson v.
duct. Violation of a rule does not give rise to a     Brewer & Pritchard, P.C., 73 S.W.3d 193, 205
private cause of action nor does it create any        (Tex. 2002) ("A fee sharing agreement between
presumption that a legal duty to a client has         lawyers who are not [*36] in the same firm
been breached." TEX. DISCIPLINARY RULE                violates public policy and is unenforceable un-
PROF'L CONDUCT preamble P 15, reprinted               less the client is advised of and consents to the
in TEX. GOV'T CODE ANN., tit.2, subtit. G             sharing arrangement."); Lemond v. Jamail, 763
app. A (Vernon 2005) (Tex. State Bar Rule art.        S.W.2d 910, 914 (Tex. App.--Houston [1st
X, § 9). As recognized by the Fourteenth Court        Dist.] 1988, writ denied) ("In substance, the
of Appeals:                                           trial judge . . . found . . . that the referral
                                                      agreement is void and unenforceable as being
          [HN14] The Texas Disciplinary               against public policy because . . . the client . . .
      Rules of Professional Conduct do                was never informed of the fee-splitting agree-
      not define standards for civil lia-             ment . . . ."); Quintero v. Jim Walter Homes,
      bility and do not give rise to pri-             Inc., 709 S.W.2d 225, 229-30 (Tex.
      vate claims. Nonetheless, a court               App.--Corpus Christi 1986, writ ref'd n.r.e.)
      may deem these rules to be an ex-               (holding a settlement agreement was void and
      pression of public policy, so that a            unenforceable because the clients were not in-
      contract violating them [*35] is                formed of the nature and amounts of all the
                                                                                               Page 18
                                       2010 Tex. App. LEXIS 727, *



claims involved in the aggregate settlement as        166a(c). [HN17] A party cannot raise new rea-
required by DR 5-106); Fleming v. Campbell,           sons why a summary judgment should have
537 S.W.2d 118, 119 (Tex. Civ. App.--Houston          been denied for the first time on appeal. Clear
[14th Dist.] 1976, writ ref'd n.r.e.) (holding an     Creek, 589 S.W.2d at 678-79. Because this ar-
attorney's referral fee contract was void be-         gument was not presented to the trial court, we
cause it was against the public policy expressed      are precluded from reaching its merits.
in DR 2-107); but see Baron v. Mullinax, Wells,            Here, the summary judgment record,
Mauzy & Baab, Inc., 623 S.W.2d 457, 461 (Tex.         viewed in the light most favorable to the Gar-
App.--Texarkana 1981, writ ref'd n.r.e.) (re-         cias, shows the mineral deed was not void, but
cognizing "[t]he public policy behind this dis-       voidable. When a deed is merely voidable, then
ciplinary rule [DR 2-107] is that persons [*37]       the four-year statute of limitations controls.
represented by lawyers in this State should be        Slaughter, 162 S.W.2d at 674. Because the
able to choose who finally represents them and        mineral deed in this case was voidable, the
the type of legal fees to be charged," but hold-      four-year statute of limitations applied to the
ing the contract in question was valid). How-         trespass to try title and quiet title actions and
ever, the Garcias do not direct us to any cases       barred these claims. We, therefore, must uphold
holding agreements violating DR 5-103 and             the summary judgment as to the trespass to try
DR 5-104 were unenforceable and void as               title and quiet title claims.
against public policy, and we have found none.
    Finally, [HN15] deeds are void ab initio          REMAINING CLAIMS
under very limited circumstances. Forged deeds            The Garcias present no specific issues
are void ab initio; however, deeds obtained by        challenging the summary judgment as to their
fraud, fraudulent misrepresentation, undue in-        slander [*39] of title, constructive trust, ac-
fluence, or mutual mistake are not void, but          counting, and declaratory judgment claims on
voidable. 5 Alyosius A. Leopold, TEXAS                the ground of limitations. Additionally, the
PRACTICE: LAND TITLES AND TITLE                       Garcias present no general issues challenging
EXAMINATION §§ 27.3--27.17 (3d ed. 2005               the summary judgment. [HN18] When, as here,
& Supp. 2009); see also Dwairy v. Lopez, 243          an appellant fails to specifically challenge
S.W.3d 710, 712 (Tex. App.--San Antonio 2007,         every ground raised in the motion for summary
no pet.) ("[A] forged deed passes no title.").        judgment, and fails to raise a general issue
Here, there are no allegations of forgery. Addi-      contending the trial court erred in granting
tionally, there are no allegations the Garcias did    summary judgment, the summary judgment
not have the authority to sign the mineral deed       must be upheld. Gamboa v. Shaw, 956 S.W.2d
and convey the mineral interests in question.
                                                      662, 665-66 (Tex. App.--San Antonio 1997, no
     The Garcias also suggest in their brief that     writ) (citing Malooly Bros., Inc. v. Napier, 461
even if the mineral deed was not void ab initio       S.W.2d 119, 121 (Tex.1970)). We, therefore,
because it violated the disciplinary rules, the       must uphold the summary judgment on the
mineral deed was void because the Garcias             Garcias' remaining claims.
[*38] were fraudulently induced to sign it. This
argument, however, was not presented to the           CONCLUSION
trial court. [HN16] "Issues not expressly pre-            Having concluded the summary judgment
sented to the trial court by written motion, an-      must be upheld on the grounds of limitations
swer or other response" to the motion for sum-        and laches, we need not address the Garcias'
mary judgment "shall not be considered on ap-         issues challenging the summary judgment on
peal as grounds for reversal." TEX. R. CIV. P.        grounds of lack of privity and lack of standing.
                                                                                Page 19
                                   2010 Tex. App. LEXIS 727, *



See TEX. R. APP. P. 47.1. The judgment of the         Karen Angelini, Justice
trial court is affirmed.
APPENDIX TAB 3
 1                               REPORTER'S RECORD
                                   VOLUME 1 OF 1
 2                            CAUSE NO. 09-03-14999-CV

 3   ISRAEL GARCIA,   ET AL           §   IN THE DISTRICT COURT

 4   VS.                              §   79TH JUDICIAL DISTRICT

 5   HOMER E. DEAN,   JR.,    ET AL   §   BROOKS COUNTY,    TEXAS

 6          ************************************************

 7                       MOTION FOR SUMMARY JUDGMENT
                               MOTION TO COMPEL
 8                            DECEMBER 01, 2008

 9          ************************************************

10            ON THE 01st day of December,        2008,    the following

11   proceedings carne on to be heard before the HONORABLE

12   RICHARD C. TERRELL,      Judge Presiding,   held in Falfurias,

13   Brooks County County, Texas.

14            Proceedings reported by shorthand method.

15

16

17

18

19

20

21

22

23

24

25
                                                            ii


 1                        A P PEA RAN C E S

 2   COUNSEL FOR THE PLAINTIFFS:
     MR. GARY D. SARLES          MR. J. MICHAEL GUERRA
 3   SBOT No. 17651100           SBOT No. 08581310
     Sarles & Ouimet             Law Offices of
 4   370 Founders Square           J. Michael Guerra
     900 Jackson Street          P.O. Box 493
 5   Dallas, TX 75202-4436       Falfurrias, TX 78355
     Office:  214.573.6300       Office:  361.325.5729
 6   Fax:  214.573.6306          Fax:  361.325.3512

 7   MR. MARK BRODEUR           MR. ALBERTO BYINGTON, JR.
     SBOT No. 03052020          SBOT No. 24001821
 8   Brodeur Law Firm           Law Office of
     17440 N. Dallas Parkway      Alberto Byington, Jr.
 9   Suite 262                  P.O. Box 703
     Dallas, TX 75287           Falfurrias, TX 78355
10   Office:   972.612.1660     Office:  361.325.4744
     Fax:  972.867.7993         Fax:  361.325.4774
11

12   MR. ROLAND L. LEON
     SBOT No. 12207400
13   Barker, Leon & Fancher
     Tower II, Suite 1200
14   555 N. Carancahua
     Corpus Christi, TX 78478
15   Office:  361.881.9217
     Fax:  361.882.9437
16

17   COUNSEL FOR THE DEFENDANTS:
     MR. KYLE C. WATSON          MR. BURTON D. BRILLHART
18   SBOT No. 20971100           SBOT No. 00797863
     Goode Casseb Jones          Brillhart Law Firm
19   Riklin Choate & Watson      3300 Reagan Street
     P.O. Box 120480             Dallas, TX 75219
20   San Antonio, TX 78212       Office:  214.520.5050
     Office:  210.733.6030       Fax:  214.520.5071
21   Fax:  210.733.0330
                                 MR. R.E. LOPEZ, JR.
22   MR. ARMANDO BARRERA         SBOT No. 12569000
     SBOT No. 0180530            Lopez Peterson
23   Barrera & Barrera           Colonnade Square 1
     P.o. Box 1339               101 W. Hillside, Suite 1
24   Alice, TX 78333             Laredo, TX 78041
     Office:  361.665.2153       Office:  956.718.2134
25   Fax:  361.558.8023          Fax:  956.718.2045
                                                         iii



 1                         INDEX TO PROCEEDINGS

 2                                                PAGE

 3   CASE CALLED FOR HEARING .                      02

 4   ANNOUNCEMENTS BY THE PARTIES                   02

 5   ARGUMENT ON MOTION FOR SUMMARY JUDGMENT
         BY MR. WATSON                              05
 6       BY MR. SARLES .                            29
         BY MR. LOPEZ                               54
 7       CASE TAKEN UNDER ADVISEMENT                59

 8   MOTION TO COMPEL
         BY MR. WATSON                              60
 9       BY MR. BRODEUR                             61
         COURT'S RULING                             62
10       BY MR. WATSON                              63
         BY MR. BRODEUR                             63
11       COURT'S RULING                             64
         BY MR. WATSON .                            64
12       BY MR. BRODEUR                             65
         COURT'S RULING                             65
13       BY MR. WATSON                              65
         BY MR. BRODEUR                             66
14       COURT'S RULING                             66
         BY MR. WATSON .                            66
15       BY MR. BRODEUR                             67
         COURT'S RULING                             67
16       BY MR. WATSON                              67
         COURT'S RULING                             68
17

18   COURT REPORTER'S CERTIFICATE                   71

19

20

21

22

23

24

25
                                                                               2


 1                           PRO C E E DIN G S

 2                             DECEMBER 01,          2008

 3                    THE COURT:     Cause No.       08-03-14557,    Israel

 4   Garcia, Et Al versus Homer E. Dean,             Et Al.

 5                    MR. WATSON:     Kyle Watson present on behalf

 6   of the movant,    along with -- movants,          along with Armando

 7   Barrera, Rufus Lopez,    and Burton Brillhart.

 8                    THE COURT:     Rufus,    how are you doing?

 9                    MR. LOPEZ:     I'm well.        Thank you,    Your

10   Honor.

11                    THE COURT:     Okay.     Other attorneys.

12                    MR. BRODEUR:     Mark Brodeur, Roland Leon,             and

13   Gary Sarles here for the Garcias,          as well as Mr. Guerra

14   and Mr. Byington.

15                    THE COURT:     Okay.     That is a Motion for

16   Summary Judgment, Motion to Compel Reset.                Counsel about

17   how long --

18                    MR. WATSON:     Yes,    sir.

19                    THE COURT:     -- do you think would take?

20                    MR. WATSON:     Judge,    I anticipate as the

21   movant we'd need 45 minutes to cover the Motion for

22   Summary Judgment,    if the Court so indulges,            as far as my

23   time on the summary judgment.

24                    THE COURT:     How -- how much on the Motion

25   for Judgment?
                                                                           3



 1                     MR. WATSON:     Forty-five minutes, Your Honor.

 2                     THE COURT:     Oh,   I don't think i t ' l l take

 3   that long.      But anyhow --

 4                     MR. WATSON:     We

 5                     THE COURT:     You can't keep my attention span

 6   that long.      But obviously,    I'm going to put it on the

 7   longer -- longer docket here.            You got Roland Leon, he

 8   just talks forever.      But I'll put you on the 45 --

 9                     MR. LEON:     I won't testify, Judge.

10                     THE COURT:     And you're one of the worst

11   witnesses I've ever known.

12                     MR. LEON:     I know that.

13                     THE COURT:     Because you're continuing to

14   lawyer here from the witness stand and giving

15                     MR. LEON:     I tried to be

16                     THE COURT:     A jury trial,    and I want you-all

17   to know,     he's giving legal advice to the jury from the

18   witness stand.

19                     MR. SARLES:     We won't let him this time,

20   Your Honor.

21                     THE COURT:     Okay.     You-all have a seat and

22   I'll get back to you as quick as I can.

23                     (DOCKET CALL CONTINUES.        COURT HEARS OTHER

24   MATTERS. )

25                     THE COURT:     Okay.     I think I'm ready for the
                                                                           4



 1   45 minute one,    the Israel Garcia, Et Al versus Homer E.

 2   Dean, Et AI.

 3                    MR. WATSON:     Thank you, Your Honor.

 4                    THE COURT:     I just want to correct one

 5   thing.    Mr. Rolando Leon is not verbose,        okay?

 6                    MR. LEON:     Unfortunately,    I'm not going to

 7   be doing the argument because this is above the

 8   (inaudible)    rate,   and Mr. Gary Sarles is          will do it.

 9                    THE COURT:     I just want to make it clear,

10   Roland,   that you're also straight to the point.

11                    MR. LEON:     Yeah,    I -- pithy.

12                    THE COURT:     Pity,    is that it?    But I really

13   do -- if you ever get him as a witness on the stand

14                    MR. LEON:     P-I-T-H-Y,    for the record.

15                    THE COURT:     I had to actually stop him.          He

16   actually turned to the record and says,          "Well,   I want the

17   ladies and gentlemen to know -- know what the law is."

18                    MR. LEON:     It's not my

19                    THE COURT:     So, you've got to keep -- keep a

20   close eye on him as a witness.

21                    MR. WATSON:     I know.     I know, Judge.

22                    MR. LEON:     You did a good job handling me.

23                    THE COURT:     Anyhow counsel, enough of that.

24   Let's get down to business.        This is a -- a Motion to --

25                    MR. WATSON:     Motion for Summary Judgment.
                                                                       5


 1                   THE COURT:     Motion for Summary Judgment.

 2                  MR. WATSON:      And it's a request for total

 3   summary judgment filed on behalf of Defendants.         Kyle

 4   Watson speaking on behalf of Defendants currently.         I'm

 5   going to touch on what I believe to be all of the legal

 6   reasons why summary judgment is appropriate in this case

 7   at this point in time.       Mr. Lopez will also have some

 8   comments in summation.

 9                   THE COURT:     This will be a traditional one

10   or--

II                  MR. WATSON:      It is indeed, yes, Your Honor.

12                   THE COURT:     Okay.

13                  MR. WATSON:      And with us today is Mr. B.J.

14   Shepherd who is one of the Defendants who was a prominent

15   lawyer here for

16                   THE COURT:     Just -- just to let you know,

17   I've known Mr. B.J. Shepherd back when he didn't have gray

18   hair,   and I knew Rufus Lopez back when he had hair, okay?

19                   MR. LOPEZ:     Thank you, Your Honor.

20                   MR. WATSON:     Also

21                   THE COURT:     I used to work for him for a

22   period of time in the early 80'S,      I believe,   for Rufino.

23   But go ahead, Counsel.

24                   MR. WATSON:     Thank you.   Mr. Dean's also

25   Homer Dean who was here, a prominent lawyer locally,
                                                                      6


 1   forever as the Court knows and

 2                    THE COURT:     I've known him my     my whole

 3   life.    I'm born and raised in Alice, Texas.       I see his

 4   daughter and daughter-in-law,       and I don't know who the guy

 5   is sitting on Mr. Brillhart's right.

 6                    MR. WATSON:     That's Mr. Richard Garza,

 7   Judge.

 8                    THE COURT:     Oh, he's not wearing his cap

 9   today so that's why I didn't recognize him.         I know Mr.

10   I know Mr. Garza,    too.     We're all a bunch of Alice people.

11   Go ahead, Counsel.

12                    MR. WATSON:     Well, Judge, what we're here

13   for is, as I indicated, a Motion for Summary Judgment.

14   This lawsuit was -- was filed against these two prominent

15   citizens and,    certainly, we have significant factual

16   disagreements.     But we're here today to address the legal

17   basis for the summary judgment.

18   Essentially, we could speak for acc- -- for hours about

19   the accolades and -- and the character and integrity of

20   these two lawyers that are being sued.

21                    We filed our Motion for Summary Judgment on

22   October the 8th of this year.        That was the First Amended

23   Petition that was filed by a group of plaintiffs here in

24   Brooks County, which are also known as the Garcia family.

25   I'm going to address in a moment, Judge,       the -- the
                                                                        7


 1   history as to why Mr. Homer Dean and Mr. Shepherd were

 2   retained, but I want to bring you current on the status of

 3   the pleadings in order to show that we are indeed ripe for

 4   a summary judgment in this case.

 5                   The First Amended Petition essentially

 6   consisted only of theories -- property theories of

 7   recovery.    They sued for suit to quiet title,       slander of

 8   title,   trespass to try title,    an accounting,    a declaratory

 9   judgment, and a constructive trust.          It's a hodge-podge,

10   if you will, of property theories of recovery.          We filed

11   our Motion for Summary Judgment based upon a statute of

12   limitation in connection with all of those theories of

13   recovery.    The statute of limitations, we assert, being

14   December of 1979.    Literally, over    34   years ago is when

15   the representation took place.

16                   On October the 31st, the day that the

17   Plaintiffs response was due to our Motion for Summary

18   Judgment,   they filed their Second Amended Petition.        In

19   the Second Amended Petition, they,      for the first time,

20   added theories of breach of fiduciary duty and fraud;

21   breach of fiduciary duty against Mr. Shepherd and fraud

22   against Mr. Dean.    Once again,   in connection with a

23   representation that took place in 1975.

24                   We then filed a Supplemental Motion for

25   Summary Judgment which contained a Motion for Leave
                                                                      8



 1   because they just had alleged this and -- and we're

 2   asserting laches, because that's black letter law stuff

 3   and -- and certainly relief would be appropriate for

 4   today's hearing.

 5                 On November the 18th, they filed their Third

 6   Amended Petition.   We then filed our reply and our

 7   Supplemental Motion for Summary Judgment,    and that's why

 8   we're here today.

 9                 THE COURT:    Okay.

10                 MR. WATSON:    Mr. Dean and Shepherd were

11   hired back in 1975 to partition land against two feuding

12   families then existing here in Brooks County, Judge.        It

13   was the Garcia family and the Figueroa family.        They were

14   feuding because they had inherited land, and I might just

15   mention to you parenthetically, Judge,    the -- the

16   ancestors or the histories of the ancestors are set out at

17   considerable length in the Plaintiffs various petitions,

18   as well as in our Motion for Summary Judgment,       so I'm not

19   going to -- to go into the ancestral history.        Suffice it

20   to say that that's been well pled.

21                 But -- but the limited engagement was to

22   partition land, particularly land known as the Rancho

23   Nuevo and the Salado ranches here in Brooks County owned

24   by the Garcias and the Figueroas.    They wanted to

25   partition this land.   Mr. Dean and Mr.   Shepherd
                                                                     9


 1   successfully accomplished that partition.        The reason why

 2   this lawsuit was filed some 34 years later, predominantly

 3   by the ancestors of the original clients that signed the

 4   fee agreement and signed the conveyance of the mineral

 5   deed is because of the fee agreement and the conveyance of

 6   the mineral deed that took place 34 years ago.

 7                   Now,   I sat here this morning and I've

 8   watched His Honor render judgment all morning.       When the

 9   judgment was rendered is a fundamental disagreement

10   between our -- our Defendants and all of our counsel and

11   the Plaintiffs.     And what I've done is just a

12   demonstratative aid,     is we have created a timeline,   if you

13   will,   Judge, of what took place by your predecessor, Judge

14   Laughlin, back in December the 8th of 1975.

15                   On that date,   the partition lawsuit was

16   called for trial.      It -- it was contested.   The parties

17   orally announced the terms of a settlement through

18   counsel.   All of this, by the way,    is -- is attached to

19   the summary judgment and proven up without objection.

20   Judge Laughlin examined the parties,     just like I've seen

21   you do this morning,    and determined that they consented to

22   the settlement terms.     Judge Laughlin accepted the

23   settlement as final,    the date the judgment was rendered

24   on -- was on December the 8th of 1975.

25              The Cullum case -- and I have a notebook of
                                                                       10


 1   authorities for His Honor,       if he is so inclined.      I heard

 2   you say you could pull it all up

 3                    THE COURT:     If you've got a -- you've got a

 4   notebook, we'll take those, too.

 5                    MR. WATSON:     Yeah,   I do.    I had a -- I had a

 6   legal assistant stay busy

 7                    THE COURT:     Yeah.

 8                    MR. WATSON:     -- for a few hours on getting

 9   it ready for you.

10                    THE COURT:    Yeah.     For future reference, you

11   don't have to actually make copies of the cases.            My

12   daughter taught me how to use a computer so I can look

13   those up myself.     And we do recycle notebooks,        too.

14                    MR. WATSON:    Very good.       Well, we got

15   plenty,   so that's fine.      I just wanted you to have those

16   to--

17                    THE COURT:    Okay.

18                    MR. WATSON:     -- to reference.      In any event,

19   I wanted the Court to understand that prior to December

20   8th,   the date that the judgment was rendered,         the parties

21   didn't have a fee agreement.        And it was a gentlemen's

22   Jones handshake between Mr. Dean and -- and the Garcia

23   family and Mr. Shepherd, which was not uncommon.            And

24   quite frankly,    there's still not a rule in the

25   disciplinary rules that require us as lawyers to have
                                                                   11


 1   written fee agreements.     That's just one of the

 2   contentions the Plaintiffs contend is outrageous.

 3                    Eight days later,   the parties got together

 4   with Mr. Dean, and you'll see affidavits in their response

 5   where some of the parties say they -- they don't remember

 6   the meeting at all.     But in any event, prior to December

 7   the 16th, they had a written judgment that was drafted,

 8   but not yet signed.     And -- and -- and I know I'm

 9   preaching to the choir when I say this,      but the -- the

10   effective moment is when the judgment is rendered and not

11   signed.   And -- and this is a cornerstone of their lawsuit

12   for breach of fiduciary duty and fraud.       I'm going to get

13   more into the substance of that momentarily.       I just think

14   it's very important for His Honor to see the timeline of

15   events with what happened some 34 years ago and why we're

16   here today.

17                    The Plaintiffs' counsel and the Defendants'

18   counsel signed a written draft.      That's page 27 of Exhibit

19   J to our Motion to Summary Judgment.      On December 16th, a

20   fee agreement was executed, and part of that fee

21   agreement,    Judge, was a $5,000 cash payment and a

22   one-sixth conveyance of mineral interest that was

23   partitioned by Mr. Dean and Mr. Shepherd.      That is the

24   reason the ancestors, primarily 35 of the Plaintiffs, have

25   filed this lawsuit.     They have filed this lawsuit claiming
                                                                    12


 1   various theories of recovery,      the property theories which

 2   I just indicated, but also breaches of fiduciary duty and

 3   fraud,   claiming that, essentially,    it's attorney

 4   malpractice because of overreaching and -- and various

 5   breaches and unconscionability and -- and name any

 6   inflammatory word that you can conceive of, and it's been

 7   in the mix.    But that is the cornerstone for this lawsuit.

 8                   Now,    it's very important for the Court to

 9   understand,   I mean aside from what was traditionally done

10   and -- and is today in terms of standard of care, but

11   we're not here on a Daubert motion.       It's important to

12   understand that every single one of the Plaintiffs then

13   existing back in 1975, everyone of them,       signed the

14   conveyance.   Now, what -- what the Plaintiffs want you to

15   believe is that this was some sort of a surreptitious

16   attorney's fees.       And you'll see in their response that

17   they actually cite lawsuits where attorneys -- the

18   Pritchard case, notably -- where attorneys did not

19   disclose a division of fees;      and therefore that violated

20   the Model Code of professional responsibility.       We all

21   know that.

22                  Every single one of them signed this

23   conveyance as part of their attorney's fee.       I mean,

24   there's even a noted expert who -- who drafted these

25   disciplinary rules that opined that I'm not even sure that
                                                                  13



 1   I would have called it a fee agreement more than a receipt

 2   for services rendered as lawyers, because it was after the

 3   judgment was rendered.      There's -- there was nothing else

 4   for them to do that would have violated the DRs other than

 5   some housekeeping measures in -- in connection with the

 6   representation.

 7                   Now,   the Plaintiffs contend and -- and aside

 8   from the fact that, you know,     it was 34 years ago and it

 9   was an arm's length transaction,     the    the Plaintiffs

10   contend that that mineral deed and that fee agreement are

11   void ab initio, not voidable; void as a matter of law, and

12   therefore,   the statute of limitations does not apply.

13   They -- they base this on the fact that they claim that

14   two disciplinary rules were violated that were in

15   connection at the time and in connection today         in

16   effect today.

17                   And I'm going to address those disciplinary

18   rules momentarily, but I think it's important that the

19   Court know that they now,    in their response,   testify with

20   affidavits that are based upon personal knowledge of the

21   affiants which directly contradicts their deposition

22   testimony, which is set out at some length in our reply

23   and -- and our contention that those are -- those are sham

24   affidavits in accordance with the Cantu case out of the

25   Court of Appeals of San Antonio,    and it's -- it's pretty
                                                                     14


 1   black letter law as to why.     I'll touch on that briefly.

 2                  Now,   it's also important to know that in our

 3   summary judgment with statute of limitations, Judge,       in

 4   their response they did not address the tolling argument.

 5   They only addressed in their response that the mineral

 6   deed and the fee agreement are void ab initio.       So,

 7   they've abandoned the tolling argument on all of the

 8   property theories.    It's only in connection with the

 9   Second Amended Petition that they've sued for breach of

10   fiduciary duty and fraud against Mr. Dean and Shepherd

11   that they're now claiming tolling.     And now they're saying

12   the discovery rule applies as well as the fraudulent

13   concealment doctrine.    It's well briefed, Judge.     Same

14   standard.   You can -- you can call it what you wish,

15   but -- but we got -- we've got it covered in brief for His

16   Honor.

17                  THE COURT:   Okay.

18                 MR. WATSON:     By pleading tolling they've

19   admitted the statute -- statute has run in connection with

20   their claims as contained in the Second Amended Petition.

21   It's also important to recognize that in their Second

22   Amended Petition, they're only suing on the breach and the

23   fraud in connection with the only four remaining living

24   clients from 1975 that Mr. Dean and Mr. Shepherd

25   effectuated this partition, not for the other 35
                                                                         15


 1   ancestors.

 2                    SOl       they/re -- they/re necessarily now

 3   having to saYI okaYI weIll gollYI gee         l   the statute/s run

 4   on these new theories that we just alleged under the

 5   discovery rule because we didn/t -- we didn/t discover

 6   this attorney malpractice l misconduct l overreaching l

 7   unconscionabilitYI we didn/t discover it until 2008.               And

 8   they attached affidavits which totallYI           completely

 9   contradicts their deposition testimonYI which also 11m

10   going to show you brieflYI as a matter of law l cannot be

11   true because of subsequent leases that the parties all

12   entered into after 1975.

13                    They claim this tolling argument in

14   connection with the Second Amended l Judge          I   by claiming the

15   Defendants l fraudulent concealment of their improper

16   conduct.     We address that in our response because what

17   what happened was l real quicklYI        after Mr. Dean and Mr.

18   Shepherd successfully partitioned the land for the Garcias

19   and the Figueroas      l   then the Garcias wanted to partition

20   the land that had been partitioned.          And they/re trying to

21   bring in the second partition into the 1975 suit l and

22   and -- and argue a fraudulent concealment of their

23   attorney/s fees l and it doesn/t exist.           And we address

24   that l but they are -- they are not now addressing the

25   tolling argument on -- on those -- on those claims.
                                                                      16


 1                      They also claim that they could not,   through

 2   the exercise of reasonable diligence, discover the

 3   Defendants improper conduct.       This necessarily implies

 4   application of the discovery rule.         But also only applies,

 5   as the Court knows,      if the injury is inherently

 6   undiscoverable and the evidence of the injury is

 7   objectively verifiable.

 8                      This mineral deed,   as it clearly shows,   is

 9   filed right here.       That's notice to the world.    They're

10   claiming that they didn't have any notice of -- of the

11   mineral deed transaction.       They signed it,   the judgment

12   had been rendered,      it was filed of record.    That's notice

13   to the world.       That's the Little v. Smith, case tab 33 for

14   His Court -- His Honor, and the Salinas v. Gary Pools

15   case,    tab 49.    Once it was recorded on December 23rd of

16   '75,    that's notice to everybody and that's -- that's

17   that's black letter law.

18                      They also continue -- they also argue that

19   the continuing attorney-client relationship through the

20   continued collection of attorney's fees in the form of

21   mineral interest allows a statute of limitations to toll.

22   Well,    first of all, there's no law that says that.      Second

23   of all, this is, again,      an argument for the statute of

24   limitations being tolled and -- because they collected

25   some bonuses.      You'll see in the pleadings, Judge,    that
                                                                   17


 1   they -- they also claim that Mr. Shepherd and Mr. Dean

 2   collected royalty interest.       They never collected royalty

 3   interest, their affidavits are attached, not in 33 years.

 4   But -- but -- you know,      it's alleged anyway.

 5                    So,   they claim that this is a continuing

 6   tort.     And -- and      and basically what they're suggesting

 7   is, you know, Judge,      if -- if -- if -- if you represented

 8   me 35 years ago and paid me 5,000, and I invested it in

 9   Wal-Mart and earned 20,000,      that that's a continuing tort.

10   I mean,    that's essentially what they're saying, and

11   there's just -- there's no support in law the law for that

12   and it's well briefed.

13                    They -- they have two other theories,

14   continuing cloud on the title which creates ongoing wrong

15   committed on the Plaintiffs' property.       Again, this is an

16   argument to try to toll the statute of limitations.

17   once again, have misinterpreted the law, Judge, because in

18   order to have a continuing tort it requires injury caused

19   by repetitive, wrongful, and tortious conduct, not an

20   injury from -- from one single act,      even assuming that

21   they're right that there's an jury.       That's the Krohn

22   case,   it's well briefed,    tab 31 of your book.

23                    So,   the tolling arguments are out on -- on

24   the property issues.      The only arguments on tolling that

25   are in are -- are in connection with the breach of
                                                                            18


 1   fiduciary duty and fraud.        Now,   in order for the

 2   Plaintiffs to -- to satisfy the burden that the statute of

 3   limitations has not run on the property theories,            they

 4   have to show a violation of the disciplinary rules.                And,

 5   again,   I mention the Pritchard case and -- and how a lot

 6   of those address the attorney not discussing the division

 7   of fees.

 8                       The Disciplinary Rules they are citing to

 9   and -- and that they're hanging their hat on are

10   Disciplinary Rule 5-103 and 5-104.         And briefly, Judge,

11   5-103 says that a lawyer cannot take a property interest

12   in the subject matter of the litigation as long as the

13   litigation is -- is -- is going.          In this case,    the

14   litigation was over.        You know,   again, we've got a final

15   judgment,    just like His Honor's done today:       On this the

16   8th day,    1975,    final judgment.    It states clearly

17   lIordered, adjudged and decreed by the Court."            Judge

18   Laughlin also states that lithe Court, having heard

19   evidence on said agreement, and having examined the

20   parties,    and being satisfied that all are of legal age and

21   competent to make said partition agreement, that the same

22   is fair,    just, and equitable to all parties,1I he              he

23   ordered, adjudged, and decreed.         He signs it on the 19th,

24   and it's approved by all the lawyers,         Figueroas and the

25   Garcias, Mr. Dean and Mr. Shepherd.
                                                                              19


 1                       And so everything that was done in

 2   connection with the conveyance was an arm's length

 3   transaction.        The fee agreement that was decided eight

 4   days later after this,          the litigation was over.        And --

 5   and that's where -- that's where the Plaintiffs are --

 6   are      are trying not to focus.            They're trying to focus

 7   on the extent of the representation.              Well, now wait a

 8   minute, you still had to get that final judgment to the

 9   Judge.    So, you know, you still had a fiduciary duty not

10   to take their property, and -- and -- and -- and making

11   suggestions like that.

12                       Well,    first of all,    they didn't take their

13   property.     There was a -- there was a free conveyance in

14   order to satisfy a debt.           And second of all,    the

15   litigation was over, and so the DR can't be violated.

16   There's no way for them to have differing interest after

17   the litigation was over, and the DR specifically mentioned

18   litigation.     I    mean,    that's what they address.        So, we

19   think it's well briefed; that their focus is misguided

20   when they focus on -- on representation.

21                       You know,    Judge,    I -- I -- we've had

22   we've had clients that we haven't litigated for in several

23   years, but they still tell people, you know,             he's -- he's

24   my lawyer, he represents me.              And -- and so the liti- --

25   the DR applies to the litigation.              And -- and so,    they --
                                                                     20


 1   they try to -- to steer the ship in         in the -- in the

 2   direction that's -- that's most likely to -- to draw some

 3   flames.

 4                    5-104 similarly,   it prohibits entering into

 5   business transactions with a client.      And certainly,   is

 6   our contention there was no business interest or sharing.

 7   We cite for His Honor in there the ethical consideration

 8   5-7 of the Model Code, along with the Eikelberger case,

 9   tab 16, which says,    "the possibility of an adverse effect

10   upon the exercise of free judgment by a lawyer on behalf

11   of his client during litigation."      It doesn't -- doesn't

12   say, you know, years ahead in representation.        It's during

13   litigation.     It does not get them where they need to be.

14                    They will -- you will see in their response

15   that they attach an affidavit of a lawyer out of Dallas

16   who,   in his affidavit, which he's been designated as -- as

17   an expert,    indicates how malicious and -- and

18   unconscionable it was for Mr. Dean and Mr. Shepherd to

19   have this conveyance.     As the Court well knows,   there's no

20   expert report that -- that can construct the meaning of

21   the Model Code.    That's -- that's a question of law purely

22   for His Honor.    And so no matter how many lawyers are

23   willing to sign affidavits of good or bad or evil,      it's

24   that's a question of law for the Court.      And -- and we

25   cite that as well in -- in our -- in our reply in our
                                                                    21


 1   Motion for Summary Judgment.

 2                   Specifically in connection with the breach

 3   of duty    fiduciary duty and fraud,      let me just -- just

 4   briefly touch on this,    Judge.    As I mentioned earlier --

 5                   MR. BRODEUR:     At this time we'd object to

 6   argument on that.    That relates to the Supplemental Motion

 7   for Summary Judgment we were provided less than 21 days

 8   prior to this hearing.       We do object to any argument

 9   regarding the laches argument,      the Supplemental Motion.

10   It was delivered or sent on November 20th,      the day before

11   Thanksgiving.

12                   MR. WATSON:    We filed a Motion for Leave,

13   which I think I addressed at the beginning of my argument,

14   because it's -- it's nothing that they can do other than

15   delay the inevitable,    in our opinion, because laches is a

16   question of law, because it's run over 32 years.       We       we

17   offered the Court

18                   THE COURT:     So, what we're dealing from

19   the operative pleadings we're talking about are the

20   Defendants' Motion for Summary Judgment and the

21   Supplemental Motion for Summary Judgment, which the

22   Respondent-Plaintiff is objecting to anything on that

23   because you've not had adequate time?

24                   MR. BRODEUR:    Yes.

25                   MR. SARLES:    That's correct, Your Honor.      We
                                                                           22



 1   received that Monday.

 2                    THE COURT:     Okay.

 3                    MR. SARLES:     A week ago today.      And my

 4   understanding, Your Honor,       is that it is not on the

 5   Court's docket for hearing today.

 6                    THE COURT:    Well,     I think the only thing

 7   I've got set on today's docket is the MSJ and Motion to

 8   Compel.

 9                    MR. SARLES:     That's correct, Your Honor.

10                    THE COURT:     Okay.    Well --

11                    MR. SARLES:     That's what I had notice of.

12                    MR. WATSON:     We have a Motion for Leave

13   contained in the Supplemental Motion.

14                    THE COURT:    Okay.

15                    MR. WATSON:     And the basis for the leave,

16   really, Judge,    is

17                    THE COURT:     To -- to address what was

18   alleged in the Third Amended Petition,          I assume?

19                    MR. WATSON:     In -- in the Second, which was,

20   for the first time today, that the response was due.               We

21   got the Second Amended Petition alleging,          on behalf of the

22   four original clients, a new theory of recovery.             And

23   laches    there's no discovery they can do or nothing they

24   can do to defeat the law that says, you know,           laches

25   applies after 30 years.        I mean,   it' s - - it' s - - it's a
                                                                           23


 1   stale claim,    there's been a good faith change in position

 2   by Mr. Shepherd and -- and Mr. Dean's estate also sign

 3   was here today, but Mrs. Brillhart also signed an

 4   affidavit showing that in connection with some of these

 5   bonuses,    they paid income taxes.    So,   they relied to their

 6   detriment, you know, over the course of the 30 years.

 7                    I don't know how they defeat laches by

 8   saying, well, we need another 21 days.         I   --   I    -   I think

 9   that that's disingenuous, because it's -- it's not a

10   question of fact,    it's a question of law.

11                    THE COURT:   I'm -- I'm going to hear you

12   out.     Whether I grant you leave to do that or not remains

13   to be seen.     Or do we need to -- or what I would typically

14   do is,    is simply, well, we'll just set this for another

15   hearing date,    at least on the supplemental motion and

16   allow the Plaintiffs-Respondents to file a response.                 But

17   I'm going to hear you out anyhow.

18                   MR. WATSON:    Okay.

19                    THE COURT:   Maybe we can save a little time.

20                   MR. WATSON:   All right, Judge.             And --

21   and      and just to -- to reinforce,    I mean, this lawyer

22   two of the lawyers from Dallas -- Dallas, we're set for

23   trial in January, Mr. Shepherd's the District Attorney of

24   Bosque County now.     It's just a tremendous

25                   THE COURT:    Oh, he's -- he's the big boss.
                                                                     24


 1   He probably doesn't have much to do anyhow.

 2                    MR. WATSON:    Yeah.    I just -- I'm urging the

 3   Court,    it's a tremendous amount of resources to expend

 4                    THE COURT:    I understand.

 5                    MR. WATSON:       on a case, really.     In any

 6   event,    I appreciate the Court allowing me to -- to finish

 7   my argument on that, because what they're trying to do is,

 8   essentially, urge an equitable theory consisting of a fee

 9   forfeiture.     Under their new theory,     they want the -- the

10   Defendants to -- to forfeit their fee.          And they attached

11   these affidavits, which we contend are -- are sham

12   affidavits just to avoid the summary judgment.

13                   And the Bluebonnet Savings case on tab 6

14   is       is very clear and it out the elements of laches.

15   You know,   that's       that's an issue purely -- purely for

16   this Court.    You know,    there's -- if the summary judgment

17   is not granted,      there's some six or seven experts that

18   need to be deposed,      30 more depositions.    And -- and I

19   don't -- our contention is that laches is,         I mean, based

20   solely purely on the law, and -- and we've -- we've

21   offered that to the Court.

22                   But -- but when we talk about laches in

23   connection with their breach of fiduciary duty or fraud,

24   they argue that they didn't discover the breach and fraud

25   until -- in 2008, conveniently.         In -- in -- it's very
                                                                         25


 1   well brief also in His Honor's notebook and in our motion

 2   that in 1980, 1989, 1990, and 1995, Dean and Shepherd

 3   entered into various leases on minerals conveyed and paid

 4   income taxes on bonuses.       Never received a royalty

 5   interest.    We've attached the affidavits of Mr. Shepherd

 6   and Mrs. Brillhart.     We also would direct the Court to tab

 7   I,   which is the case that supports that theory.           So,

 8   that's why we're asking for leave.

 9                   THE COURT:     Okay.

10                   MR. WATSON:     I       I might also offer for the

11   Court,   just parenthetically, when His Honor looks at some

12   of the cases they cite for the breach of fiduciary duty

13   and fraud,   they're malpractice cases, which are fine and

14   good if we were standing here in 1978 or '79, but we're

15   along way out of there.       And so, you know,    I think that's

16   pretty telling.

17                   In any event,       I wanted to tell you,

18   discovery rule does not apply clearly, and there is no

19   tolling under -- under the breach of fiduciary duty or

20   fraud.   All the Plaintiffs signed the conveyance.            And

21   they now argue, well,   they didn't speak English, and so

22   because they didn't speak English, you know, you

23   committed, essentially, malpractice and you took their

24   property against their will.         Well, we've established not

25   only did they have notice in '75,         but -- but the law is
                                                                               26



 1   also very clear that they are burdened l as a matter of

 2   law l with knowledge of the contents of that l in addition

 3   to the other leases that they signed.

 4                      Now   l   there/s a lot of -- a lot of

 5   individuals that are identified in the pleadingsl but I

 6   think it/s very important l Judge           l    that -- that you know

 7   that in 1980   1   a number of Plaintiffs had an interest in

 8   mineral rights in Rancho Nuevo.                 They all initialed --

 9   and -- and this has been proven up -- they all initialed

10   and executed a 1980 mining lease with Conoco.                    That/s

11   Exhibit E to the reply.            In this -- in this l it also

12   clearly shows -- this is 180.              You know l there/s --

13   there/s four other leases also that 11m not going to take

14   your time with l because I meanl you                   you can read them

15   as easily I can read them to you.                But

16                      THE COURT:      Okay.

17                      MR. WATSON:       -- I think this is

18                      THE COURT:      WeIll    I tell you    l   I -- I won't

19   make a ruling todaYI because I want to hear you out and I

20   want an opportunity to analyze what you filed and the

21   responses and everything.           But go ahead l Counsel.

22                      MR. WATSON:       I -- I think this is

23   interesting, Judge.           This is proven up.         This is just a

24   blow-up for your             as a demonstrative aid.           It lists all

25   the percentages l this is kind -- it lists all the
                                                                      27



 1   percentages, and -- and -- and look who -- whose names are

 2   clearly on there.     I mean,   I don't see the cover-up there.

 3   You've got -- you've got a fee agreement, you've got a

 4   mineral conveyance that is filed of record, you have other

 5   leases that in the last 30 some-odd years, you know,        have

 6   been going out.     And -- and -- and now 34 years later,

 7   we're trying to set all that aside.       It's -- it's -- it's

 8   unprecedented.

 9                    It's our -- it's our contention, Judge,        that

10   there's no way to establish that the fee agreement and the

11   mineral conveyance were void as a matter of law.         If they

12   are not void,    the statute of limitation's clearly run.         It

13   is our contention that the breach of fiduciary duty and

14   the fraud contention as alleged in the Second Amended,

15   seven days before our hearing,      the tolling of limitations

16   does not apply, because you can't have the discovery,

17   because we have, as a matter of law,      knowledge.   And to

18   suggest that "I didn't discover it until 2008 11 is contrary

19   to the law.

20                    And so, on both of those grounds,     they can't

21   survive summary judgment.       And so, we've also shown you in

22   our reply, Judge, why these affidavits are a sham.         And

23   I -- I blew up portions of those affidavits, but since His

24   Honor is going to -- to review those materials,        I -- I

25   won't go into those contradictions.       I would -- I would
                                                                     28


 1   lead His Honor to -- to the case out of San Antonio, the

 2   Cantu case,    tab 10, which I think is       is -- stands on

 3   all fours,    and that is that the affidavits are

 4   contradictory to their deposition testimony,       they're

 5   designed to escape summary judgment, and they should be

 6   dis~egarded.


 7                   We also object to them on the ground of the

 8   deadman's statute, which we have been diligent in

 9   preserving throughout the deposition of Mr. Shepherd,

10   because we all know that Mr. Dean's not here to refute

11   those things.     I also object, once His Honor has a chance

12   to review this, because page 5 and 33 of the Plaintiffs'

13   response are factual recitations without any summary

14   judgment evidence to support them.        It's just a

15   regurgitation of -- of ancestral facts,       and -- and so

16   we --we object to those on those grounds.

17                    I'm going to -- I'm going to stop argument

18   now so opposing counsel can -- can respond,       and then

19   either Mr. Rufus    (sic) or I will,   if the Court allows us,

20   make some comments.

21                   THE COURT:    Okay.

22                   MR. SARLES:    First of all, Your Honor,      I --

23   I think I have an objection, but I'm not sure.          Apparently

24   counsel's referring to a reply brief that was filed with

25   the Court that has not been served on me.        I don't believe
                                                                           29


 1   it's been served on Mr. Roland (sic)         or Mr. Brodeur.         If

 2   it was served within the last week,         it obviously wasn't

 3   served 21 days before this hearing.

 4                    THE COURT:     Reply brief, Counsel?

 5                    MR. WATSON:     Yes, Judge.     I mentioned my

 6   reply.     That was filed last Tuesday.        Now,    there - - I

 7   don't believe there's a rule on a reply to a response that

 8   has -- to say a -- in fact,       I'm certain there's not.

 9                    MR. SARLES:     Well,   I'm certain there iS t

10   Your Honor,    and that is this:       If they've attached

11   evidence to that reply,       exhibits to that,       those documents

12   had to be filed 21 days before todayts hearing.              They can

13   file a reply,    they can argue the law,       they can show up

14   with the law and argue the law, obviously, but what

15                    THE COURT:     Well, you --

16                   MR. SARLES:      -- they can't do is put it in

17   evidence.

18                    THE COURT:     Well t the reply brief is simply

19   briefing of the law.

20                   MR. WATSON:      That's correct.

21                   THE COURT:      Is it anything more than that,

22   Counsel?

23                   MR. WATSON:      Well,   contained in the reply is

24   also directions to why we believe they're sham affidavits

25   and we object to them.        But I   -- we can urge an objection
                                                                           30


 1   to something in the response through the reply.

 2                     THE COURT:   Yeah.    That wouldn/t be part of

 3   the summary judgment proof is what you/re seeking; is that

 4   correct?

 5                    MR. SARLES:    That/s correct l Your Honor.              My

 6   point was   I   heard from counsel that there was an Exhibit E

 7   to the replYI and if there are exhibits attached to the

 8   replYI   if there/s evidence attached to the replYI we

 9   object to it.     We/re entitled to 21 daysl        notice on it.

10   On the Supplemental Motion the same thing l Your Honor.

11   The laches issue has been raised here at the eleventh

12   hour.    The Court moved this hearing actually

13                    THE COURT:    Well -- well l let me tell       YOU   I




14   my -- my inclination iS I because what we/re doing here

15   certainly is not evidentiarYI        it/s simply argument.

16   got to consider what the motions and the responses and

17   the      you know l the appropriate summary -- summary

18   judgment proof attached to those.         But as far as the

19   Supplemental Motion for Summary Judgment        I   I   don/t want to

20   bring everybody back down here.         How long will it take for

21   you to provide a response to that and 1/11 just take it on

22   submission?

23                    MR. SARLES:    I   would thinkl    Your Honor l if

24   we have a couple of weeks to respond to it.

25                    THE COURT:    Fourteen days?
                                                                       31


 1                   MR. SARLES:    That would be more than

 2   sufficient.

 3                   THE COURT:    I won't make any ruling on

 4   the -- the Supplemental Motion for Summary Judgment,           and

 5   I'll allow you 14 days to file a response from today's

 6   date, December 15, to get that filed.

 7                   MR. SARLES:    Fine.

 8                   THE COURT:    On or before December 15th then.

 9                   MR. SARLES:    That'll be fine,     Your Honor.

10                   THE COURT:    And then I'll just take that on

11   submission.   Not that we don't mind people coming from

12   Dallas to visit us down here, but --

13                  MR. SARLES:     I'm down here all the time,

14   Your Honor,   so I can come back.

15                  THE COURT:     Okay.    Go ahead,   Counsel.

16                  MR. SARLES:     The -- the first issue that I

17   would point out to the Court is this is not an attorney

18   malpractice case.    Counsel continuously refers to it in

19   his argument as a mal -- attorney malpractice case,           it is

20   not.   It is a breach of fiduciary duty,      fraud clase

21   case, and a trespass to try title action with a quiet

22   title action also asserted amongst the other claims.

23   There's not a malpractice claim before the Court.

24                  To step back briefly and go through just a

25   few of the facts that I think are relevant to this motion,
                                                                       32


 1   I'll try not to be long on the facts because,        I think the

 2   Court has the general overall concept.         Two families,     the

 3   Garcia family,      another family,   the Figueroa family,   have

 4   undivided interests in the surface and minerals of two

 5   ranches here in Brooks County, Rancho Nuevo and Rancho

 6   Salado.     Those are undivided interests.

 7                      The Garcias went to Mr. Shepherd and Mr.

 8   Dean in 1975 and said we would like those interests

 9   divided.     Mr.   Shepherd and Mr. Dean took on that

10   representation,      and the Garcias paid them an initial

11   deposit of $1,250.       That's referenced in a notebook that

12   I've also brought for the Court.         I know you have lots of

13   things to read,     now you have a whole other notebook to

14   read.     But that's in the notebook.     At tab 1 of Exhibit B

15   is a letter from the late Mr. Dean to the Garcia family

16   explaining how the -- the amounts have been accounted for

17   that have been paid by the Garcias and have been collected

18   as attorney's fees by Mr. Shepherd and Mr. Dean.

19                      In April of '75, Mr. Dean and Mr. Shepherd

20   sued the -- the Figueroas for a important

21   one-third/two-thirds division of these two interests.

22   Fidencio Garza then answered for the Figueroas and said

23   one-third/two-thirds division of the property.          Didn't

24   sound like a whole lot of a dispute between the parties,

25   but for some reason,      a lawsuit needed to be filed.
                                                                      33


 1                   Settlement negotiations,     surprisingly since

 2   there wasn't really a disagreement between the parties,

 3   began in July of 1975, and that's at tab 7, Exhibit 8 to

 4   Mr. Shepherd's deposition that's enclosed in our notebook.

 5   The case was called before Judge Laughlin on December 8th,

 6   1975.    Settlement was announced,     but there is no mention

 7   in the subsequently entered final judgment, this document

 8   that counsel has brought to the Court in a blow-up,           there

 9   was no discussion here or over here, Your Honor, of that

10   document saying the judgment was actually rendered on

11   December 8th, 1975.

12                   And the reason for that is because the final

13   judgment doesn't say that.      It says a whole lot of things.

14   Mr. Shepherd and Mr. Dean obviously drafted it, but it

15   doesn't say that the Court orally rendered judgment on

16   December 8th, 1975.

17                   THE COURT:    God,   I'm not too sure I've ever

18   seen a judgment that said that,      to be honest with you.

19                   MR. SARLES:    I -- I haven't either, Your

20   Honor.   And that's why the case law is very important.

21   S&A Restaurant Corp. V. Leal is a Texas 1995 Supreme Court

22   case that says approval of a settlement does not

23   necessarily constitute rendition of a judgment.         To

24   actually render a judgment from the bench,        the Court has

25   to say III hereby render judgment."      And I,   too, have
                                                                  34


 1   watched the Court this morning.     The Court has not

 2   entered -- has not uttered those words in the course of

 3   its decisions today.     That's what's required under this

 4   S&A Restaurant Corp. v. Leal case for a judgment to be

 5   orally rendered from the bench.     The only evidence,

 6   because it's not in the final judgment, there's no

 7   transcript of the December 8th settlement conference

 8   before Judge Laughlin,    the only evidence before the Court

 9   that there was a rendering of judgment on that date is the

10   deposition testimony of Mr. Shepherd.

11                    I would point out for the Court that

12   166(a) (c)   specifically provides that a summary judgment

13   may be based on uncontroverted testimony or evidence of an

14   interested witness if the evidence is clear, positive, and

15   direct, otherwise credible and free from contradictions

16   and inconsistencies, and could have been readily

17   controverted.     Obviously, without a transcript and without

18   any other attorney available to contest what Mr. Shepherd

19   says,   they feel like they get to carry the day, because

20   they contend that December 8th, 1975 was the date that

21   their representation ended.

22                   And it's important because that's really the

23   crux of their entire summary judgment motion on at least

24   part of what we have filed as claims against the

25   Defendants.     Their point is that on December 8th, 1975,
                                                                       35



 1   although Judge Laughlin didn't sign the judgment until 11

 2   days later,    that they were done.    Well,    it's not really

 3   that simple either.     Mr. Shepherd contends that he was

 4   done on December 8th, but Mr. Dean continued to represent

 5   the Garcia family,    we know through at least January,

 6   because he continued to do other work for them.           In fact,

 7   he charged an additional $500 for the extra work that he

 8   continued to do for them.

 9                    So, we're not talking about, on this issue,

10   entire summary judgment anyway.        It's only Mr. Shepherd

11   that contends that he was done on December 8th, he went

12   on, he's done.     Mr. Dean, his co-counsel,      is allegedly,    I

13   guess,   still representing the Garcias to do these other

14   things, but he's done as of that date.

15                    Mr. Shepherd admitted in his deposition,

16   this is tab 7 of our notebook at page 44 of his deposition

17   testimony,    that there was not a written settlement

18   agreement,    just a final judgment.    So,    there wasn't a

19   final settlement agreement reached on December 8th.

20   There's not a settlement document that exists in the

21   world.   The only settlement document that exists is the

22   final judgment itself.     It wasn't signed until 11 days

23   later.   That's important in this case, because although in

24   theory you might have a case where some            some

25   representation occurs, a final judgment is rendered from
                                                                   36


 1   the bench, you're done,     it might be that that would be the

 2   case in several minor matters.      But this was a partition

 3   of real estate.     There had to be a written document

 4   produced so that something could be filed in the Brooks

 5   county deed records.      This final judgment is the

 6   something.     There wasn't a settlement agreement that was

 7   written and signed to be filed in the deed records.         You

 8   can't just have the court reporter go over and tell the

 9   deed records clerk we've got a partition agreement

10   reached.     There had to be a written document.   That

11   document didn't exist until December 19th.

12                    In the interim, meanwhile back at the ranch,

13   on December 16th, Dean and Shepherd presented this fee

14   agreement that you've heard so much about,     and the fee

15   agreement is at the purple tab of the white notebook I've

16   provided to the Court.      The fee agreement recites the

17   $1,250 deposit,    it takes another $5,000 that the Figueroas

18   were supposed to pay to the Garcias,     the money to be paid

19   by the Figueroas would go directly as attorney's fees,        and

20   then one-half of the Garcia family's mineral interest was

21   conveyed to Mr. Dean and Mr. Shepherd, and plus all of

22   their expenses in the litigation were also covered.         So,

23   it's sixty-two fifty in cash and half of the mineral

24   interest, plus all of their expenses.

25                   Now,   interestingly, Oscar Garcia and Viola
                                                                     37


 1   Garcia never signed the fee agreement.        They refused to

 2   sign it.     Most of the Plaintiffs and their -- the

 3   affidavits are at tabs 1 through 4 of the notebook.        Most

 4   of the Plaintiffs have elementary school educations,       first

 5   grade,    second grade,   fifth grade.   They didn't understand

 6   English,    they probably wouldn't have understood it if it

 7   had been written in Spanish.       The fact of the matter was

 8   they didn't understand the documents.        They were told that

 9   they needed to show up at Mr. Dean's office in order to

10   finalize the partition with the Figueroas.        That's in the

11   affidavits of -- of the four Plaintiffs, the surviving

12   Plaintiffs.     The affidavit of Tomasita Ramos is tab I,

13   this is what she says at paragraph 13,       "It was represented

14   to me,    through others as translators, by personnel in Mr.

15   Dean's office on December 16th, 1975, and December 19th,

16   1975, that I had to sign all the document presented to me

17   at that time,    including the document attached to this

18   affidavit as Exhibit A," and Exhibit A is the mineral

19   deed, wherever the mineral deed went to,       it's around here.

20   Exhibit A is the mineral deed Plaintiffs were asked to all

21   sign,    this document,   because they were told it was part of

22   the partition with the Figueroas.

23                    What came out in the discussion with the

24   clients is that,    in fact      and this is in the affidavit

25   of Viola Garcia,    the one member of the family at the time
                                                                    38


 1   who could read and write some English, and who was,

 2   therefore,    refusing to sign the fee agreement, Ms. Viola

 3   Garcia's affidavit, at paragraph ten,      states that when she

 4   signed this document -- it's a typewritten document and

 5   you'll see it's a form from the San Antonio Bar

 6   Association.     You're not supposed to use this document

 7   unless you're a lawyer.     So, at the time that she signed

 8   this document down here somewhere, Oscar Garcia, Viola

 9   Garcia,    the typewritten portion of that document wasn't

10   completed.

11                    Now, that sounds fairly outrageous,

12   outlandish.     It's like, wow,   they -- they've completed a

13   document after it was signed.      That would be somewhat

14   outlandish and unbelievable almost if it weren't for the

15   facts of this case, documents and exhibits that we really

16   don't have any dispute with Defendant's counsel about.

17   Attached in the notebook, and I've highlighted them with

18   yellow tabs for the Court's convenience and I ask the

19   Court to look at this before its ruling,      there is a

20   document that was created to partition the Garcia

21   families'    -- the six Garcia families'   portion after the

22   partition.     That document was prepared and it was signed.

23                    The unusual thing about this document, and

24   it was produced right out of the files by Defendant's

25   counsel,    shows that the document was actually notarized by
                                                                  39



 1   Mr. Dean's secretary, or his legal assistant, before the

 2   Garcia family signed it.     The other interesting thing

 3   about this document is that after the Garcia family signed

 4   this partition document,    someone took the document with

 5   their signatures on it,    rolled it into a typewriter and

 6   added a paragraph to the document.     It is paragraph 6-A

 7   that is at the bottom of one of the pages and continues on

 8   to the top of it, because that's where there was blank

 9   space on the document.

10                 That paragraph 6-A, and it is the fourth

11   yellow tab that -- in the white notebook, Your Honor,

12   fourth little yellow tab, that paragraph refers back to

13   the one-half of the mineral interest that was provided to

14   Mr. Dean and Mr. Shepherd.     They wanted to make sure that

15   the Garcia families'    partition amongst the six families

16   expressly referenced their one-half interest in what the

17   Garcia's had just obtained from the Figueroa family.

18                 So,   it does sound outlandish and

19   unbelievable, but the facts of this case are outlandish

20   and unbelievable,   that a lawyer would have a notary

21   notarize a document without any signatures on it before

22   the clients come in to sign it, and then would alter the

23   document after they've signed it and had it notarized.

24   So, outlandish facts.

25                 The surviving Garcia family members -- these
                                                                    40



 1   are the tabs through 4,    the numbered tabs.    Most of the

 2   tabs in our white notebook are letters.       But the numbered

 3   tabs set forth four affidavits of the surviving Garcia

 4   family members.     Briefly,   for the Court's convenience,

 5   I'll go through essentially what they've testified in

 6   their affidavits.     I keep hearing about there's a sham

 7   affidavit,   these are sham affidavits.     I haven't seen a

 8   reply brief,   so I don't know whether that's -- what

 9   they're arguing about here.      But what their affidavits

10   have said,   some -- these affidavits were served on them on

11   Halloween -- what their affidavits say for the last month

12   is, Ms. Toma- -- Tomasita Ramos,      she was told the

13   paperwork that she was to come in and sign was to finalize

14   the settlement partition with the Figueroas.       She was not

15   told what the -- the petro-mineral deed was supposed to

16   do,   but if you sign a blank perpetual and you're

17   signing      and you're thinking you're partitioning

18   property with the Figueroa family, well, maybe you

19   understand even if you can read perpetual mineral deeds

20   that maybe you're supposed to convey something to them and

21   the Figueroas are going to be conveying something to you.

22   The document's blank, you have no idea who you're

23   conveying what to.

24                  Each of the Plaintiffs also testified they

25   didn't understand that the Defendants in this case, Mr.
                                                                    41


 1   Shepherd and the late Mr. Dean,    had taken one-half of

 2   their mineral interest.     What's also clear in all of their

 3   affidavits is this document that wasn't filled out at the

 4   time, but is now,    recites that there was $2,000 in-hand

 5   paid.   Each of the four surviving Plaintiffs have said we

 6   didn't receive any $2,000.     They've not -- the Defendants

 7   haven't produced any documents that show that $2,000 was

 8   paid.

 9                    And interestingly, and this is at the green

10   tab of the notebook that we presented to the Court,       this

11   is a January 21,    1976 letter on Mr. Dean's stationery to

12   the Garcia family members,    and it sets forth the

13   accounting of this is what you paid,    this is what you got

14   from Ms.   Figueroa, this is what our expenses are.      The

15   expenses for Mr. Shepherd and Mr. Dean are calculated to

16   the penny.     But that document, oddly enough, makes no

17   reference to $2,000 paid.

18                    That document also makes no reference to a

19   $7,000 attorney's fee that two is backed off.     Well, we'll

20   charge you a $7,000 fee,    we'll give you $2,000 for this

21   perpetual mineral deed and reduce it to $500          or $5,000,

22   excuse me.     There is not in the accounting that was

23   provided to the clients in January of '76,    there is not in

24   the fee agreement that's at the purple tab that I've

25   referred to,   any mention of $7,000 or $2,000.   And the
                                                                      42


 1   affidavits from the Garcia family all say we didn't

 2   receive $2,000.

 3                    So, again, that,   I believe,   corroborates

 4   their statements that that document wasn't typed in at the

 5   time.     Ms. Viola Garcia,   the person who could read English

 6   in the family,    at least somewhat, Ms. Viola Garcia's

 7   affidavit says this wasn't typed in.         If it had been,    I'd

 8   have said where's my share of the $2,OOO?

 9                    The first,   I guess,   to break this down,    the

10   first bridge that the Defendants motion has to -- has to

11   pass seems to be something that they would just prefer to

12   forget and not plan out to the Court, and that is the

13   Defendants bear the burden of disproving the discovery

14   rule.     They bear the burden of proving everything in their

15   motion.    This isn't a no evidence motion.       This is their

16   motion on their affirmative defense of limitations.

17                    The case law, and again, we've brought some

18   of that case law forward for the Court's convenience at

19   tab C and D, expressly point out that on a Motion for

20   Summary Judgment where a statute of limitations is the

21   basis for the movant's relief,      that the moving defendant,

22   not the plaintiff, bears the burden of establishing as a

23   matter of law when the cause of action, when the

24   misconduct, not the Plaintiffs -- not the Defendants'

25   interest, but the misconduct.       They say, well,   they should
                                                                      43



 1   have known this at the time.       Well,   the issue isn't

 2   whether they knew about the interest that the

 3   Plaintiffs -- or the Defendants had taken from the

 4   Plaintiffs, but whether the Plaintiffs knew of the

 5   Defendants' misconduct.

 6                    Now, what -- one thing that we do agree on

 7   in their -- in the Defendant's motion,        and that is that

 8   the Texas Supreme Court categorically determines whether

 9   cases have the discovery rule apply to them.         This isn't

10   done on a case by case basisi it's done on based on

11   particular causes of action.       We've cited to the Court

12   some of the cases in our briefing, to look at what kind of

13   cause of action is it.       If it's a malpractice case, this

14   isn't,   the discovery rule applies.       If it relates to a

15   breach of fiduciary duty or fraud claim as the plaintiffs

16   claims in this case are, the discovery rule applies as a

17   matter of law.

18   The fact that something's filed in the deed records

19   doesn't change the fact this a breach of fiduciary duty

20   claim,   the discovery rule applies.

21                    So,   their argument that the discovery rule

22   doesn't apply here is just simply incorrect.         We've cited

23   the Court a number of cases in our response, we've

24   included some of those cases in the notebook,        the white

25   notebook we've provided to the Court.        Those make very
                                                                       44


 1   clear that on a breach of fiduciary duty claim,

 2   particularly a breach of fiduciary claim involving a

 3   lawyer and their clients, the discovery rule applies.

 4                   Counsel's talked about and I        -- I just don't

 5   know what it's all about, but counsel's talked about some

 6   type of tolling issue.       This appears to be some type of

 7   misconception, because the discovery rule is not a tolling

 8   rule.   The discovery rule doesn't toll limitations.          The

 9   discovery rule defers the accrual of a cause of action

10   until such time as a plaintiff knew or should have knew of

11   that particular misconduct or

12                   THE COURT:       Why -- why did it take until

13   2008 to discover that?

14                   MR. SARLES:       Because they didn't know --

15   they didn't understand it until this was pointed out by

16   counsel,   current counsel,      that they had one-half of their

17   mineral interests conveyed to Mr. Shepherd and Mr. Dean.

18                   THE COURT:       Thirty-three years later?

19                   MR. SARLES:       Thirty-three years later.

20                   THE COURT:       Okay.

21                   MR.    SARLES:    These 33 years,   they've not

22   been told that.       And in fact,   that sounds like an

23   extraordinary amount of time.

24                   THE COURT:       Well, yeah,   it sure it does.

25   And the mineral deed was filed when?           I mean, that was
                                                                      45



 1   from December of 1975?

 2                    MR.   SARLES:    That's correct, Your Honor.

 3                    THE COURT:      Is that correct, once you file

 4   something in the deed records that becomes notice to the

 5   world?

 6                    MR. SARLES:      It does not, Your Honor.    As a

 7   matter of law.

 8                    THE COURT:      I don't recall that when I went

 9   to law school.

10                    MR. SARLES:      I -- I -- I'm with you, Your

11   Honor.

12                    THE COURT:      Okay.

13                    MR. SARLES:      If the -- the Court, when --

14   when you look at the materials that we've provided,          there

15   are two cases there, one from the San Antonio Court of

16   Appeals,    a case called Lightfoot v. Weissgarber from 1989.

17   In that case,    the San Antonio Court of Appeals held that

18   constructive notice, by filing something in the deed

19   records,    that might apply to subsequent purchasers, but it

20   does not establish knowledge for statute of limitations

21   purposes.     So, when they filed something in the deed

22   records doesn't tell someone that they've been defrauded,

23   or in the Weiss -- Lightfoot v. Weissgarber case that they

24   have a Deceptive Trade Practice Act case.

25                    The most recent case,     though,   on this is in
                                                                      46


 1   the notebook at tab G.        It's a case called Lewis v. Nolan,

 2   and it is --

 3                    THE COURT:    So -- so basically, that would

 4   deal, what you're saying opposing counsel was arguing

 5   about,    dealt exclusively with subsequent purchasers?

 6                    MR. SARLES:    That's correct.   And that's

 7   exactly what -- what in our response we pointed out.

 8   There's actually a case from the Texas Supreme Court,

 9   Ojeda de Toca,    from 1988,   I believe, the year before

10   Weissgarber was decided that says that yes,       filing

11   documents in the deed records constitutes notice to the

12   world, but it doesn't apply to defeat fraud claims.         It

13   doesn't -     it doesn't apply to give notice on causes of

14   action.

15                    Following up that,   that Weissgarber case,

16   the San Antonio Court of Appeals case, most recently in

17   2003 from the Houston 14th District Court, a case at tab G

18   of the notebook, Lewis v. Nolan.       We believe this case is

19   on all fours.     I   didn't hear any argument about it.    When

20   I   don't hear argument from counsel about a case,     I know

21   they either want to run and hide from it or they haven't

22   bothered to look it up and read it, one or the other.

23                    Lewis v. Nolan goes through and explains

24   that the discovery rule applies in the attorney-client

25   relationship.    When an attorney breaches an obligation to
                                                                       47



 1   his or her client, the discovery rule applies to that

 2   cause of action as a matter of law.          And in this

 3   particular case,    there were judgments entered against the

 4   client that the lawyer had failed to respond to some --

 5   some motions,    and because of that a judgment was entered.

 6   And their argument was, well,      the client should have known

 7   because it was filed in the deed records,         just like the

 8   perpetual mineral deed was filed in the deed records.             And

 9   the Houston Court of Appeals says no,         summary judgment's

10   not appropriate in that circumstance.          Filing it in the

11   deed records doesn't negate the -- the discovery rule as a

12   matter of law.     The conclusion of the case, because Nolan

13   did not negate the discovery rule as a matter of law,         he

14   was not entitled to summary judgment based on limitations.

15                    It is a case that is on all four with this

16   case.   It's a malpractice case instead of a breach of

17   fiduciary duty case, but it essentially says constructive

18   notice does not trump the discovery rule.          Constructive

19   notice doesn't establish as a matter of law that somebody

20   should have known something or did know something.          It's

21   just simply apples and oranges,      subsequent

22                    THE COURT:    Or -- or --

23                    MR. SARLES:    -- purchasers versus

24   plaintiffs.

25                    THE COURT:    Or should have known something.
                                                                     48


 1                    MR. SARLES:     Or should have known something.

 2   It simply says the discovery rule still leaves a fact

 3   issue, and you can't point to something filed in the deed

 4   records and say that establishes it all.

 5                    All of this -- and this is a little

 6   internecine area of the law that was -- until you get into

 7   it was Greek to me.     But essentially there are       there's

 8   a dichotomy here of void versus voidable.        The case that

 9   Defendants' motion relies on,       that they are most relying

10   upon is a case Slaughter v. Qualls from the Texas Supreme

11   Court in 1942.     It says this:     If there is a deed or a

12   conveyance,   like this perpetual mineral deed,     and if that

13   document is void ab initio, right out of the box,       if that

14   document is void,    there is no applicable statute of

15   limitations, which makes their motion for summary judgment

16   one of the most bizarre that I've encountered.

17                    THE COURT:    Well -- well, which, obviously,

18   if the document's void,       then there is no statute of

19   limitations issues because,       in effect, that didn't happen.

20                    MR. SARLES:    That's actually, Your Honor.

21   And because of that, under the Civil Practice and Remedies

22   Code,   I believe it's 16.051, actions to recover real

23   estate are excepted from all of the state -- statute of

24   limitations if the deed is void.

25                    Now, what they argue is, well,    the deed's
                                                                       49


 1   not void,   it's voidable.     And their first argument is

 2   essentially this:     Well,   assuming that Mr. Shepherd and

 3   Mr. Dean violated the DR 5-103 and DR 5-104, well,           those

 4   don't really make the doc- -- the mineral deed void,            they

 5   make it voidable.     It's only fraud,      it's breach of

 6   fiduciary duty at most that makes those documents voidable

 7   and not void.

 8                    And essentially what the law says is if the

 9   chancellor of roles in equity must come in and take some

10   action to eliminate the impediment to title,         then the

11   regular statute of four-year statute of limitation applies

12   to the cause of action.       And this is       is set forth in

13   the case law.     There's a Ford Motor -- Ford case that is,

14   I believe, about from 2006 that talks about this same

15   thing and brings it current for the last 20 years or so.

16                    The problem with that argument is this:

17   That we have cited to the Court in our response, which

18   we've included at tab B, we have cited in our response at

19   page 30 at least six cases dating back to the Disciplinary

20   Rule period when the rules governed.         We've cited all

21   these cases,    including a Texas Supreme Court case from

22   2002,   that says when a contract is entered into prior to

23   disclosure to the client about a lawyer's fee splitting or

24   fee sharing,    that agreement is in violation of the DRs and

25   it is against public policy, and it is unenforceable.
                                                                                    50



 1                   They don't use the word "void" in the Brewer

 2           or Brewer and Pritchard case, but some of the other

 3   court of appeal cases have.         They have said over and over

 4   and over again that if you violate the DRs,                   if an attorney

 5   violates a contractual limitation that you can't split

 6   fees,   that you can't settle a case on an aggregate basis

 7   and forget to tell your client that,            oh, yeah, we're

 8   settling 542 other cases for the same pot of money,                      all of

 9   those agreements that are entered -- entered into without

10   disclosing that to the client are void and unenforceable.

11                   Now,   they -- they've got a site, and               I

12   believe it's essentially something along the lines of,

13   well,   the case law says that a court may use the DRs to

14   void a contract or to set forth public policy.                    And that's

15   true,   that's what that case says.           But the six cases that

16   we've cited on page 30 of our response, Your Honor,                      set

17   forth very clearly if you violate the DRs,                   the contract is

18   void and unenforceable.       We contended from the beginning

19   of this case the perpetual mineral deed is void ab initio.

20   But the

21                   THE COURT:    Are you fix -- are you fixing to

22   wrap up your response?

23                   MR. SARLES:     I   am.   I    --   I   --

24                   THE COURT:    Because I was correct,               it didn't

25   take 45 minutes --
                                                                   51


 1                   MR. SARLES:    It never does.

 2                   THE COURT:    -- it's going to take over an

 3   hour.   But go ahead.

 4                   MR. SARLES:    I understand, Your Honor.

 5                   The -- the second issue, and this is

 6   unaddressed by the Defendants as far as I know; since I

 7   haven't seen their reply,     I can't be for sure on this.

 8   But a couple of the cases that we've cited to the court,

 9   that I would ask the Court to pay particular attention

10   to -- of course,   I've said that probably about a half

11   dozen cases now.

12                   THE COURT:    I pay attention to all of them.

13                   MR. SARLES:   You're probably getting tired

14   of hearing me say that, but two of the case that are in

15   here that are      that I've highlighted for the Court's

16   convenience, one of those cases is Miles v. Martin.        And

17   Miles v. Martin goes through this void/voidable dichotomy.

18                   And what it says is void/voidable dichotomy

19   is great and that's the law of the State of Texas, but

20   there's an exception to the void/voidable dichotomy.

21   Regardless of whether it's void or voidable,     if someone

22   represents that you are signing a document to do -- to

23   grant a power of attorney, that's that San Antonio case

24   that I'll talk about next,    if you misrepresent the nature

25   of the document to the grantor of the deed or the
                                                                  52


 1   conveyance,   that type of fraud in the inducement makes the

 2   agreement void ab initio.    Not voidable as we would

 3   normally think about a fraudulently-induced contract

 4   creating a voidable contract,    it makes that conveyance or

 5   that deed void.

 6                  So,   it doesn't really matter, but we can

 7   argue about whether judgment was rendered on December 8th,

 8   we can argue whether that document's void or whether it's

 9   voidable under the Slaughter v. Qualls case,    the bottom

10   line is regardless of what the timing of all this is,       the

11   affidavits of the Garcia surviving family members that are

12   set forth at tabs 1 through 4 of the notebook,    in

13   paragraph 13, I think, are of most of the affidavits,

14   somewhere along paragraph 13,    I've highlighted for the

15   Court's convenience when you look at the notebook,      those

16   set forth expressly that they were told by Mr. Dean's

17   office that they needed to come in on December 16th, 1975

18   to finalize the partition with the Figueroas, not what --

19   they were actually signing, which was a perpetual mineral

20   deed to convey the interest to Mr. Dean and Mr. Shepherd.

21                  It makes no difference essentially whether

22   it's void or voidable.    It makes no difference whether the

23   judgment was rendered December 8th or whether it was

24   rendered when it was actually signed on December 19th.

25   Under the two cases that we've cited there for the Court,
                                                                      53


 1   tab H, Miles v. Martin, and then the next case,        the really

 2   egregious case, the case from the San Antonio Court of

 3   Appeals, Tijerina v. Tijerina, that case, mother and

 4   father lied to their son who was going off to World War           II

 5   right after Pearl Harbor that he was signing a power of

 6   attorney to give,    I   believe, his father a power of

 7   attorney over his affairs.

 8                  THE COURT:     When I asked if you were

 9   wrapping up,   I meant for you to wrap up.

10                  MR. SARLES:     All right.     In the Tijerina

11   case, Your Honor,    the -- the ruling was essentially the

12   same as the Miles v. Martin case.

13                  THE COURT:     Okay.   I can review those cases.

14   Anything else you want to point out, Counsel?         Briefly?

15                  MR. SARLES:     Briefly.     I would also point

16   out, Your Honor,    on the issue of when that -- when the

17   work was done by the lawyers,      the affidavit of Dr. Quinn,

18   the UT law professor who is the Plaintiffs' experts,           it is

19   at tab 6 of the notebook,      it sets forth the reasons why

20   Mr. Shepherd was not done with his work on December 8th

21   and why he continued to owe a fiduciary obligation.

22                  It's not a construction of the DRs.        We

23   understand that's something for the Court to determine and

24   decide, but it is an explanation of why, under the facts

25   of this case, Mr.    Shepherd's work needed to at least
                                                                       54


 1   continue until that judgment was signed by Judge Laughlin

 2   and the case concluded.         And of course,   in the intervening

 3   time before that judgment was signed by Judge Laughlin,

 4   this fee agreement was obtained -- signatures on it was

 5   obtained, a perpetual mineral deed was obtained.           We would

 6   ask that the Court at least look briefly at some of

 7   highlighted portions of -- of Dr. Quinn's report.

 8                      THE COURT:    I   -- I can assure you I'll look

 9   at everything submitted.         Before I make a ruling on any

10   matter,       I try to at least educate myself a little bit

11   before    I   make rulings in these little bit more -- more

12   out-of-the-ordinary cases I would call this.           It takes a

13   little bit of effort.

14                      Counsel, did you have a brief response that

15   wouldn't take longer than about 30 second or so?           I'll

16   allow you to make a brief response if you

17                      MR. LOPEZ:   Thank you, Your Honor.

18                      THE COURT:   We'll work a little bit into the

19   lunch hour.

20                      MR. LOPEZ:   May it please the Court.

21                      THE COURT:   Sure, Mr. Lopez.

22                      MR. LOPEZ:   Just a quick rebuttal to their

23   arguments.       Interestingly enough,    they -- they quote

24   our -- the Ford case that was referred to,         and the Ford

25   case stands -- Supreme Court case stands for the
                                                                      55


 1   propositions that the statute of fraud claim also, where

 2   the Court held that the expiration of the limitations

 3   period had -- had already prevailed.       It -- it also

 4   applied to and precluded the landowner from bringing an

 5   equitable claim for quiet of title.

 6                   So,   counsel is correct in mentioning it, but

 7   he forgot to mention the effect of that is             and that is

 8   they can't -- how are -- they're basing it at law, and at

 9   the same time coming in with their -- their -- one of

10   their eight claims to quiet the title.       I think the

11   Supreme Court case of       of 2007,   this case,   this Ford

12   case,   clearly stands for that proposition.        It would take

13   away their quiet title.

14                   What we've got down to, Your Honor,       is      is

15   basically one issue:      Is this claim too late for

16   adjudication?    That's     that's all we want to know.         And

17   we contend that it is.     Thirty-three plus or 34 years is

18   too long.   Because what are the elements of their -- of

19   their discovery defense that they're claiming?         Those

20   elements say you got to have concealment, you've got to

21   have reasonable diligence on their part.       They can't just

22   hide behind the law.

23                   So, what do we have to offset that is before

24   the Court in summary judgment?     Not the speculation that

25   counsel had said about this particular acknowledgement or
                                                                      56


 1   what Viola would have said had she known.         Thatts all

 2   speculative.       That is not summary judgment proof.     But

 3   what do we have that is summary judgment proof?          We know

 4   that they signed the         the mineral deed.    We know that a

 5   letter was sent,      rightfully so, by Mr. Dean indicating

 6   that,    as a good title examiner that we all knew he waSt

 7   that provision that especially accepting in that deed the

 8   reference to Mr. Dean's and to Buddy Shepherd's interests

 9   in there had to be stated.       SOt   he took the timet he wrote

10   them a letter and says this has to go in there because

11   that goes with the warranty of title later on if they ever

12   have to deed it or if they ever do whatever they need to

13   do.     SOt   that's a provision that was a precautionary

14   measure taken by Mr. Dean that had to be set.

15                      So, we now know they had two periods of

16   notice.       The third period of notice in 1980 when they had

17   a lease.      Another one in 1989 when they had another lease.

18   Another one in 1990 and another one in 1995.         Does that

19   tell us anything about their due diligence?         Can they

20   actually stand here before the Court with some summary

21   judgment proof and still say, well t Viola would not have

22   done it had she known?       She knew.   She came back -- they

23   say she didn't sign that fee agreement, but the summary

24   judgment proof before the Court shows she came and she

25   signed the deed right along with everyone else.
                                                                        57


 1                    So, we think that if they're relying,

 2   regardless of the       whether it's a void deed or a

 3   voidable deed, which will be the second issue we'll

 4   address,    the -- the discovery elements that is necessary

 5   for them to prevail with must show that they did some

 6   diligence and were cautious enough to find out what was

 7   going on.    They cannot, especially in this part of the

 8   world, as we've seen it for years,     certainly in          in my

 9   years,   they come back and say,   "Well,    I didn't know

10   English and I didn't know and you didn't explain it."              We

11   have an affidavit from Tomasita.      It's in English,       she

12   signed it,   it's notarized.   That's one of their summary

13   judgments.    How can she now claim she knows it?

14                   The third item, Your Honor,      and -- and

15   we'll -- we'll finish probably with that,        is keep in mind

16   perhaps what they failed to -- to look at and claim,

17   particularly against my client, because they -- they have

18   one cause of action that says fraud claim against Ms.

19   Dean.    To keep a fraud claim in -- against anyone has to

20   be one of two; it's either common law fraud or it's

21   statutory fraud.    The common law fraud requires a

22   representation that it was material,        that it was false,

23   that we knew, and it was intentional for the Plaintiffs to

24   either act or fail to act, they relied on it, and they

25   were injured.    If any of these elements fail,      anyone is
                                                                   58



 1   negated,    their cause of action does not exist.

 2                    On the statutory, the 27.01 of the Texas

 3   Business and Commerce Code, are there known disclosure and

 4   concealment of the facts,    the duty to disclose that it was

 5   material,    that the Defendant knew Plaintiff was injured,

 6   and Plaintiff had an opportunity to discover that the

 7   Defendant was cited when he had a duty to speak, and that

 8   Defendant intended to induce the Plaintiff to act or

 9   refrain from acting,    and that the Plaintiff relied on this

10   non-disclosure and was therefore injured.       No one has

11   talked about those basis.     But when we get down to the

12   the basis of this claim, how can they get around the fact

13   that the limitation applies?     If they're going to do the

14   discovery,   then they must -- they must be able to satisfy

15   these various elements.     If they're going to say, well,

16   Mr. Dean, didn't tell me.

17                    So, what is the standard?    The standard in

18   this type of case is that it must be inherently

19   undiscoverable.     Has the Court heard anything from the

20   Plaintiffs that can tell the Court in summary judgment

21   proof that this was inherently undiscoverable?       Doesn't it

22   really stand to reason that it's quite the opposite?         They

23   discovered it,    they talked about it,   they signed it

24   accordingly in all those leases recognizing what interests

25   everyone had.
                                                                        59


 1                   They taught -- and I -- I might add in

 2   their -- their pleading is -- is a lengthy one with

 3   regards to the history of this property.        It's    it's one

 4   for the books as far as the history is concerned.        But

 5   they also talk about a 66,000 acre original tract that the

 6   Garcias and the -- and the families had.        Somehow along

 7   the way,   some of these people were involved in the

 8   partition deed in 1927 with Mr. Jones.        In that acreage

 9   in that division,   somehow their interests dwindled down to

10   this -2000 and one ac- -- and one thousand acres, Ms.

11   Jones kept the rest.    These were all participants in that.

12                  So, we do not believe that they can address

13   the Court with summary judgment proof sufficient to offset

14   the fact that the limitation applies,       that they've not

15   created any issue of material fact that would -- that

16   would not sustain this Court if it is appealed on its -

17   on its judgment.    And I thank you very much, Your Honor.

18                  THE COURT:    Okay.    Plaintiffs' counsel,     I

19   will try to get you out some rulings ASAP.        I understand

20   this is scheduled for jury selection in January.

21                  MR. WATSON:    Yes,   sir.

22                  THE COURT:    I'll take a look at your -- the

23   Motion for Summary Judgment,    and of course,    I'll wait on

24   anything dealing with the supplemental motion until the

25   Respondent-Plaintiffs have had an opportunity to file
                                                                                        60



 1   their response to that.             Is that i t l            Counsel?

 2                         MR. WATSON:     Your Honor             l   there/s one of the

 3   last requests     l    if the Court will --

 4                         THE COURT:     It/s brief?

 5                         MR. WATSON:     Very brief.                  We also had a

 6   Motion to Compel some responses

 7                         THE COURT:     Oh   l
                                                   11m         sorry.

 8                         MR. WATSON:             for a good long weekI too.

 9   We can ask the Court to take it on submission, and I don/t

10   think it/s a very difficult motion.

11                         THE COURT:     Well     l   that was the quick one.               I

12   think you said about five minutes on the Motion to Compel?

13   What/s -- what/s --

14                         MR. WATSON:     I can do it from here.

15                         THE COURT:     Yeah     l   go ahead.

16                         Do you need a chalk and scraper?                     Before we

17   take up that matter --

18                         (COURT HEARS OTHER MATTERS.)

19                         THE COURT:     Okay.            Counsel.

20                         MR. WATSON:     Judge       l       we filed a Motion to

21   Compel back in September of this year.                             I -- I might have

22   mentioned in -- in my Motion for Summary Judgment argument

23   that we had a -- we took the depositions of the original

24   four clients that are still alive                     l    and during those

25   depositions   l   Judge   l   there were repeated instructions by
                                                                      61


 1   Mr. Brodeur, who's lead counsel for the Plaintiffs,        for

 2   them not to answer certain questions that I asked.         And I

 3   think that they're not objectionable.

 4                    And just very quickly,     for example, Tomasita

 5   Ramos, her deposition was taken on June the 5th, 2008.

 6   One of the Defendants that has been sued in this case but

 7   certainly is subject to the motion is Dean Partners

 8   Limited, of which Mrs. Brillheart is a general partner.               I

 9   simply asked,    "Why did you sue Dean Partners Limited?"

10   Mr. Brodeur objected and instructed the witness not to

11   answer.    And then we had -- Mr. Brodeur and I had a

12   dialogue the Court doesn't need to address.         I still would

13   like to know why she sued Dean Partners Limited.         I'm not

14   aware of anything that would prohibit me from knowing

15   that.     It was her deposition.

16                    THE COURT:     Do you have a response to that,

17   Counsel?

18                    MR. BRODEUR:     Yes.

19                    THE COURT:     Mr. Brodeur, you're going to

20   handle that?

21                    MR. BRODEUR:    Yes.    With respect to the

22   deposition, we should point out who was being deposed.

23   Ms. Tomasita Ramos,    is in her 80's and she        she was

24   being deposed through the translator there in Mr.

25   Byington's office.     And Ms. Tomasita Ramos is one of those
                                                                         62



 1   four -- or five,    rather,    individuals who are still living

 2   who retained Mr. Dean and Mr. Shepherd.

 3                    When asked what was the motivation for suing

 4   Dean Partners,    the lawsuit sets out in great detail what

 5   were the facts and the cause of action supporting it.

 6   There's two bases, Your Honor,       as I understand it that you

 7   can instruct a client not to answer.          First of all,   it is

 8   a privilege matter.     And certainly her motivation and the

 9   basis for bringing that lawsuit,       could only come from me.

10   And secondly,    if it would be confusing or harassing to the

11   Plaintiff.

12                    THE COURT:     But -- but Mr. Brodeur,     I -- I

13   think you can ask anybody "Why did you sue these people?"

14                    MR. BRODEUR:     What's your motivation for

15   bringing this suit?     I mean,    that's purely what --

16                    THE COURT:     What was the question, Counsel?

17                    MR. WATSON:     What was the question?

18                    MR. BRODEUR:     That's the way I     understood

19   it.

20                    THE COURT:     Hold -- hold on.      What was the

21   question,    Counsel?

22                    MR. WATSON:     Page 21,   line 1:    Why did you

23   sue Dean Partners Limited?

24                    THE COURT:     That's a legitimate question.

25   I'll grant the Motion to Compel on that.
                                                                            63


 1                    MR. WATSON:     I asked the deponent:         Whose

 2   idea was it to file this lawsuit?

 3                    MR. BRODEUR:     Again, Judge --

 4                    THE COURT:     Well -- well,      some lawyer,   I'm

 5   sure.   But --

 6                    MR. WATSON:     Well,    I am,   too.   But -- but

 7   there was a lot of conversation that took place among

 8   family members, and the relevance of that is some of them

 9   speak English, and allegedly not some of them don't.

10                    THE COURT:

11   it as to that question, but obviously,            I think you could

12   rephrase that.

13                    MR. WATSON:     Okay.    And -- and -- and by

14   rephrasing it,    I mean, do we have an opportunity to

15   re-depose her or -- or just submit those questions?

16                    THE COURT:     Well, you're obviously going to

17   have an opportunity as to that one question, you know.

18                    MR. BRODEUR:     If counsel were to ask the

19   same 88-year-old woman again whose idea was it among the

20   family members,    I would again instruct her.           The

21   conversations you had with the other parties in lawsuit

22   and who came up with an idea to file a lawsuit is

23   absolutely privileged.        It doesn't matter if the

24   discussion's between lawyers or --

25                    THE COURT:     I mean,   that a privilege?
                                                                              64


 1                       MR. BRODEUR:       Sure.

 2                       MR. WATSON:     That's not privileged.

 3                       THE COURT:     No,    I disagree with that one.           I

 4   disagree with that.           I'll grant the Motion to Compel on

 5   that one,    too.     Okay.    Next?

 6                       MR. WATSON:     I was questioning the witness,

 7   Your Honor,    about the December 16th fee agreement and

 8   mineral deed,       and I said, on page 45,         line 1:   Do you

 9   complain about it today?

10                       MR. BRODEUR:       Again,    the -- the lawsuit

11   states the legal complaints that these Plaintiffs have.

12                       THE COURT:     No, no,      Counsel.   They -- and

13   counsel has a right to ask them what they put in their

14   lawsuit.     I'll grant the Motion to Compel.

15                       MR. WATSON:     I asked the same question again

16   on page 46, and I received the same instruction, not to

17   ask her that question again,             so

18                       THE COURT:     Well,      that -- that ruling's

19   already been made then.

20                       MR. WATSON:     And the deposition of Maria

21   Garcia,    I asked:     Has the -- has the lawsuit been

22   translated to you?        The relevance,         again, because

23                       THE COURT:     Is that your same argument, Mr.

24   Brodeur, because the petition states out all the

25   allegation?
                                                                           65


 1                    MR. BRODEUR:     No.     It's really a way that

 2   that these lawyers have met with these clients, Your

 3   Honor.    They had a group meeting between the lawyers and

 4   their clients,    and I believe that those conversations are

 5   privileged.    Whatever those conversations were between

 6   these individuals and their lawyers,          I don't think that

 7   Mr. Watson has a right to ask who said what, whose idea

 8   was it, when -- these were meetings with lawyers, Judge.

 9                    THE COURT:     Yeah.     We're -- we're in the

10   discovery process.     Obviously,       if something came out there

11   and you want to assert, you know, privileged

12   communication,    that's fine.     But any privileged

13   communications,    I won't let go before the jury anyhow.

14   I'll grant the Motion to Compel on that one.

15                    MR. WATSON:     I specifically said not --

16                    THE COURT:     Wait -- wait.

17                    MR. WATSON:     -- with respect to privilege.

18   I ruled for you.     Go ahead.     You can't argue if I rule for

19   you.

20                    MR. WATSON:     Oh,    I know.    A fundamental

21   first    - first year law school stuff,           I apologize.     I was

22   asking the witness, Judge, about again the value of her

23   mineral interests in 1975.        We were discussing the mineral

24   interest in the dialogue of question and answer.                 And my

25   question is:     What is it exactly that you're unhappy with?
                                                                        66


 1   Instruction not to answer.

 2                    MR. BRODEUR:     Judge, what relevance possibly

 3   could be gained through that?         I mean, what information

 4   could be gained?     There's a lawsuit,     it's 85 pages.      What

 5   are you unhappy about?

 6                    THE COURT:     Well, you know,     I heard a

 7   response one time that all witnesses        (sic)   should think

 8   about,    I'm unhappy about having to sit in a room with a

 9   bunch of lawyers and answer their questions.            And when you

10   ask a question like that,       sometimes you get responses like

11   that.     But I'll allow that question.      I'll grant your

12   Motion to Compel on that.

13                    MR. WATSON:     Same witness --

14                    THE COURT:     I've already told them how to

15   answer it, too, but go ahead.

16                    MR. WATSON:     I asked:   Do you know why you

17   filed the lawsuit?       Objection,   instruct the witness not to

18   answer.

19                    THE COURT:     I'm going to allow those type of

20   questions,    Counsel.    I don't know how productive the

21   answers will be because they're somewhat broad, but go

22   ahead.

23                    MR. WATSON:     The deposition of Oscar Garcia

24   on June the 6th, 2008, we were discussing who among family

25   members they had talked to before the deposition, which is
                                                                              67



 1   generally a pretty standard question in depositions.                 I

 2   asked and she said she talked to her cousin,             Israel

 3   Gonzalez.

 4                     I said,   IIWho is that?

 5                     "A cousin."

 6                     I said,   "What did you discuss lI ?

 7                     MR. BRODEUR:     Again, Judge,    that's

 8   privileged.

 9                     THE COURT:     What -- what part are you --

10                     MR. WATSON:     It isn't --

11                     THE COURT:     No, no, no.     What parties

12   discuss among themselves is not privileged.              What they

13   discuss with their attorneys is.           I'll grant the Motion to

14   Compel.

15                     MR. BRODEUR:     Well,   those were discussions

16   with,   Counsel, Your Honor.

17                     THE COURT:     Well -- well,    that wasn't

18   question the that was asked.          Now, obviously,     if it come

19   up,   well,   I only had discussions with my lawyer,          then

20   certainly that's fine.         But they certainly have a right to

21   discover discussions they had with anyone else,              including

22   parties.      But certainly not the privileged communications.

23   Go ahead,     Counsel.

24                     MR. WATSON:    Viola Garcia take -- taken on

25   June 6th,     2008.   Sorry, Judge.     Okay.    Has there been a
                                                                      68



 1   person in your family,       and when I say "family," I mean the

 2   Garcia family,    who has been handling communications with

 3   your attorneys in this case?        I'm asking -- I'm asking

 4   who's taking the lead among these 40 some-odd people.

 5   Objection,    instructed not to answer.

 6                    THE COURT:     I'll grant the Motion to Compel

 7   on that.     That's it?   Okay.    Takes care of the motion.       Do

 8   you have an order prepared?

 9                    MR. LEON:    Your Honor,    can we handle it by

10   sworn answers,    like interrogatories?

11                    THE COURT:     Counsel,    I only hear one

12   attorney at a time.

13                    MR. LEON:    Go ahead.

14                    MR. BRODEUR:     Good question.

15                    THE COURT:     But it sounds like a good

16   question.     How do you want to handle that,       Counsel?

17                    MR. LEON:    Otherwise, you know,     it's --

18                    THE COURT:     Mr. Leon,   let Mr. Brodeur take

19   the lead.

20                    MR. BRODEUR:     We -- we did have lengthy

21   depositions.

22                    THE COURT:     He's not a good co-counsel

23   either.     He's been a lead counsel too long.

24                    MR. BRODEUR:     But the issue would be the

25   mechanics of that, how the Court wants us to handle that.
                                                                         69


 1                   THE COURT:     How do you want to handle that,

 2   Counsel?

 3                   MR. WATSON:     We've been waiting since

 4   September.   We're not interested in wasting any more money

 5   because we already filed a Motion for Leave on a

 6   Supplemental Motion for Summary Judgment.          If they could

 7   get it to us,   something that clearly should have been

 8   answered a long time ago, quickly.

 9                   THE COURT:     Well, he's asking do you -       do

10   you want to just simply to file sworn responses to the

11   questions you just outlined?

12                   MR. BRODEUR:     We call do that.     Well,   the

13   problem will be --

14                   THE COURT:     Well, hold on, hold off.

15                   MR. WATSON:     The -- the gallery -- the

16   abundance of defense counsel in the interest of democracy

17   is inclined to try to re-depose them as the Court's

18   ordered.

19                   THE COURT:     But to ask those limited

20   questions?

21                   MR. WATSON:     Yes.

22                   THE COURT:     Those precise questions?

23                   MR. WATSON:     Yes,   sir.   Yes, we will.

24   And    and let me just mention real quickly,         the reason

25   why we took these depositions was their request because
                                                                      70



 1   they were allegedly ill, and each one of them answered

 2   they're not ill, so

 3                  MR. BRODEUR:     Well,    they were and they've

 4   had surgeries since then.

 5                  THE COURT:     Well,   I'm not going to get into

 6   that.    I'll allow you by -- by means of deposition.

 7   You-all try to get that worked out.         Good luck on that.

 8   Anything else, Counsel?

 9                  MR. WATSON:     No, Your Honor.

10                   THE COURT:    Okay.     Then I assume we'll be in

11   recess for lunch, we'll reconvene at 1:30.

12                  MR. LOPEZ:     May we be excused, Your Honor?

13   I don't believe we asked permission.

14                  THE COURT:     Oh, yes, you may be excused.

15                  MR. LOPEZ:      Thank you very much, Your

16   Honor.

17                  THE COURT:     I thought that was a given.

18                   (END OF PROCEEDINGS.)

19

20

21

22

23

24

25
                                                                    71


 1   THE STATE OF TEXAS     §

 2   COUNTY OF BROOKS       §


 3                   I, SONIA G. TREVINO, official court reporter

 4   in and for the 79th Judicial District Court, State of

 5   Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all portions

 7   of evidence and other proceedings requested in writing by

 8   counsel for the parties to be included in this volume of

 9   the Reporter's Record,      in the above-styled and numbered

10   cause, all of which occurred in open court or in chambers

11   and were reported by me.

12                   I further certify that this Reporter's

13   Record of the proceedings truly and correctly reflects the

14   exhibits,   if any, admitted by the respective parties.

15                   I further certify that the total cost for

16   the preparation of this Reporter's Record is      $~~oO        and

17   has been paid by Sarles & Ouimet.

18                  WITNE~Mt

                                      ex!
                                   OFFICIAL. HAND this the 10th day

19   of April, 2007.      ~.
20                              Sonia G. Trevino, C.S.R. #2274
                                Certification Expires:  12-31-09
21                              Official Court Reporter
                                79th Judicial District Court
22                              P.O. 3080
                                Alice, TX 78333
23                              361.668.8240

24

25
APPENDIX TAB 4
                                     CAUSE NO. 08-03-14SS7-CV

ISRAEL GARCIA, et at,                           §          IN THE DISTRICT COURT
                                                §
VS.                                             §
                                                §          79 th JUDICIAL DISTRICT
HOMER E. DEAN, JR.,                             §
DEAN PARTNERS, LTD.                             §
AND B. J. SHEPHERD                              §          BROOKS COUNTY, TEXAS

                               AFFIDAVIT OF VIOLA GARCIA

       BEFORE ME, the undersigned authority, personally appeared Viola Garcia, known to

me, who after being sworn by me stated the following under oath:

       1.     My name is Viola Garcia. I am over the age of twenty-one (21) years, of sound

mind, and fully competent to testify in this cause. The foregoing representations are true and

correct and based upon my personal knowledge.

       2.     I am a plaintiff in a pending case in the District Court for Brooks County, Texas,

against B.l Shepherd ("Shepherd"), Homer E. Dean Jr. ("Dean"), and Dean Partners Ltd ..

       3.     I am 62 years of age. I went as far as the 11 th grade in high school and obtained

my GED. I did not speak and read English very well in 1975, and although I do now speak and

read English, I do not read English well enough to understand complicated legal documents.

       4.     In 1975, my husband's family and I hired two attorneys in Alice, Texas, Mr.

Shepherd and Mr. Dean, to represent all of us in a lawsuit filed in Brooks County against

Tomasa Figueroa and other members of the Figueroa family to partition two tracts of real estate

in Brooks County known as Rancho Salado and Rancho Nuevo.

       5.      On December 16, 1975, I was requested to go to the office of Homer Dean in

Alice, Texas to sign paperwork that I was told was to finalize a settlement partition between our

family and the Figueroa family. I was not provided copies of the documents that I was told to


AFFIDAVIT OF VIOLA GARCIA   PAGE 1




                                            1846
sign on December 16, 1975 in Mr. Dean's office. From 1975 until March of 2008, I did not

understand that the paperwork provided to me by my attorneys, Mr. Shepherd and Mr. Dean, in

December of 1975 was anything other than documentation to finalize a settlement partition

between our family and the Figueroa family.

       6.      Earlier this year I was shown a document dated December 16, 1975, written in

English, a copy of which is attached to this affidavit as Exhibit "A" I was shown Exhibit "A" in

Mr. Dean's office on or around December 16, 1975 and did not understand it, because I did not

read or speak English, and it was never explained to me in Spanish by Mr. Shepherd, Mr. Dean

or anyone else in Mr. Dean's office. Neither Mr. Shepherd, Mr. Dean, nor anyone else in Mr.

Dean's office showed me Exhibit "A" from 1975 until 2008, when I was shown Exhibit "A" by

my current lawyers. In 1975, I did not know what Exhibit "A" purported to accomplish, or

inquire further into the matter, because I was trusting that, as my lawyers, Mr. Shepherd and Mr.

Dean would not tell me things that were not true and that they would not fail to disclose

important facts to me.

       7.      Until early in 2008, I was unaware that my lawyers, Mr. Dean and Mr. Shepherd,

were claiming an ownership of one-half of the mineral rights owned by our family and described

in the December 1975 partition deed between our family and the Figueroa family. This was

never disclosed to me by Mr. Dean or Mr. Shepherd or anyone else before my discussions with

my current lawyers earlier this year. I did not know this, or inquire further into the matter,

because I was trusting that, as my lawyers, Mr. Shepherd and Mr. Dean would not tell me things

that were not true and that they would not fail to disclose important facts to me.

       8.      Neither Mr. Shepherd, Mr. Dean nor anyone else ever disclosed to me, in 1975 or

thereafter, what the values of the mineral estates for Rancho Nuevo and Salado Ranch were. I



AFFIDAVIT OF VIOLA GARCIA-PAGE 2




                                            1847
have recently become aware that Mr. Shepherd and Mr. Dean had in their possession in 1975 an

expert appraisal of the value of our family's mineral interest. No appraisal was ever explained,

shown or provided to me by Mr. Shepherd, Mr. Dean or anyone else until my current attorneys

recently did so. Because this interest is a mineral interest and is held by our family only in

fractional form, I never had a reason to inquire into its value, and because Mr. Shepherd and Mr.

Dean failed to advise me of its value in 1975 and failed to advise me that they were taking it

from our family and me at far less than its market value, I have not had a reason to inquire into

its value until my attorneys did recently. I did not know these things, or inquire further into

them, because I was trusting that, as my lawyers, Mr. Shepherd and Mr. Dean would not tell me

things that were not true and that they would not fail to disclose important facts to me.

       9.      I would never have granted Mr. Shepherd or Mr. Dean an interest in our family's

mineral rights in Rancho Nuevo and Rancho Salado if they had disclosed to our family that they

were taking one-half of our family's mineral rights.

       10.     I never received $2,000 or any part of $2,000 from Mr. Shepherd or Mr. Dean in

exchange for signing Exhibit "A," and none of our family received $2,000 or any part of $2,000

from them for signing it. Although I did not understand Exhibit "A" when I was told to sign it in

Mr. Dean's office in 1975, either the first page of Exhibit "A" was not shown to me in 1975 in

Mr. Dean's office or the typed-in information on the first page of Exhibit "A" was not yet typed

in, because I could at least read enough English in 1975 that I would have noticed if the first

page of Exhibit "A" had stated that Mr. Dean and Mr. Shepherd were paying our family $2,000,

and neither I nor my husband, Oscar, nor any of his family received $2,000 or any part of $2,000

from Mr. Dean and Mr. Shepherd. I understand that the $2,000 is not mentioned in any way in




AFFIDAVIT OF VIOLA GARCIA-PAGE 3




                                            1848
the accounting that Mr. Shepherd and Mr. Dean later sent our family, a true and correct copy of

which is attached hereto as Exhibit "B".

       11.        Neither Mr. Shepherd nor Mr. Dean ever advised me that he had any conflicts of

interest in representing me, or that he was obtaining our family's property and failing to disclose

its value to us. Neither Mr. Shepherd nor Mr. Dean ever advised our family or me that we

should seek independent legal advice or have an independent appraisal performed on our

family's property. They also never advised me or our family that they knew the value of our

family's mineral interest. Neither Mr. Shepherd nor Mr. Dean ever explained to me the nature or

legal consequences of the transactions they were having me and our family enter into with each

of them. At all times I trusted that they were only looking after my rights and interests rather

than their own.

       12.     Neither Mr. Shepherd nor Mr. Dean ever advised me that he was asserting to

other people that he had the executive rights to lease our family's property, and I never was

advised by them of the conflict between them having those rights and our family having those

rights. I did not know these things, or inquire further into them, because I was trusting that, as

my lawyers, Mr. Shepherd and Mr. Dean would not tell me things that were not true and that

they would not fail to disclose important facts to me.

       13.        It was represented to me by personnel in Mr. Dean's office on December 16, 1975

and December 19, 1975, that I had to sign all the documents presented to me at that time --

including the document attached to this affidavit as Exhibit "A" -- in order to complete the

transaction under which our family would have Rancho Nuevo and Ranch Salado partitioned

from the Figueroas. I did not know until 2008 that this was not true. I did not know this, or

inquire further into the matter, because I was trusting that, as my lawyers, Mr. Shepherd and Mr.


AFFIDAVIT OF VIOLA GARCIA-PAGE 4




                                            1849
Dean would not tell me things that were not true and that they would not fail to disclose

important facts to me.

             14.        It was represented to me in a letter sent to our family by Mr. Dean dated January

6, 1976, that some wording was inserted into the partition deed, a copy of which is attached to

this affidavit as Exhibit "C," so that our family's partition would be valid. I did not know until

2008 that this was not true and that the wording, Paragraph 6A, that Mr. Dean and Mr. Shepherd

inserted into the deed after I and our family members signed it did not in fact make the partition

valid. I did not know this, or inquire further into the matter, because I was trusting that, as my

lawyers, Mr. Shepherd and Mr. Dean would not tell me things that were not true and that they

would not fail to disclose important facts to me.

             15.        Neither Mr. Shepherd nor Mr. Dean ever told me that he was no longer my

lawyer. My understanding was that both of them were continuing to act as our family'S lawyers

throughout December of 1975 and January of 1976 in order to finalize the lawsuit and settlement

partition with the Figueroas. I also understood that they were continuing to represent our family

in matters concerning its mineral interests in Rancho Nuevo and Rancho Salado.




                                                     V ola GarCIa

             Subscribed and sworn to before me, the undersigned notary,        thi~~~Of October,
2008.



 ~   ,\\\~~V"'I'          LYDIA E. flORES
           ·Y.~.i
 ,; ~_.:t~.~~" ~
 v
                    Notary Public! St1ateeof ~exas
                      My Commlss on· xplres
 ~ ~:?;.     "~,,
 ~. ~/tf.A!j~~'~
                              08
                        December. 2010




AFFIDAVIT OF VIOLA GARCIA-PAGE 5




                                                     1850
        Before me, the undersigned notary, on this day appeared       ~~
who after being by me duly sworn, stated as follows:

        I have translated the foregoing final version of this affidavit from English into Spanish

and orally communicated it to Mrs. Viola Garcia, who thereafter signed this affidavit under oath

as indicated above.


                                              ~~                                ff{...J
        Subscribed and sworn to before me, the undersigned notary, this    $     day of October,
2008.


                   LYDIA E. FLORES
             Notary Public. State of "faxes
               My Commission-ExpU'es
                 December 08. 2010




AFFIDAVIT OF VIOLA GARCIA-PAGE 6




                                              1851
                           .......               ..........~ .. "11''''11''   ",1' "':.... 11 I.Ill', ..   '"''   un,,' "y •• :1\\]'..   "~

                                                  ./'" "'d.·.·, 11,,' /11'1';'1:"/'11':11, jin (n "'u,,1.- 1I/,Hr.C·If, ,,'r,"/;.; ..~I jutf"·'/'ftll'ix;.It'.,
                           N~TILt~                II,' 1'"",',,/ "".-cd,,1 ,.·rlffx r-,tH./t'lur.·" II,.: 1""lIt'M"t: ,,' It.l:"t Nv ""lfI,,,I'II',1
                                                  'lrn,," ,'n,,, "wt'l ,,/1 "..)Ui,'(II:"u"'r. (J~r". x.,::!)

                                                                     M]I~ERAL                              DEED                                                   3GI69
                                                                                (PNIU')o;'l'tJAI,)                             FILE NO._-
  nn~     S'rA'l'l!: ()lo' 'fEXAH.                               }
  COUN'fY Ol~             Eroo]:-s             ..............•            KNOW .\T.I. m:N IlV TlJJo;SE                         I'mT~~,1"s: 93.' PACE 649
        'rJJA'r   the     undel."sl~lned                  Ifeirs of Cas.i.r.tiro Gll.:r:cia Ramos, c1ecellsed
  of     Brooks County, 'l'exns                                                                 • hClVinnftcr clilled Gran",r (whether one ut "",roll for nnd I,.


 ·l,r
                         1(;11'1 ""ReL ,d",t.rllet add,...,
  con"lel~r"tion or tha sum of 'fwo ThousanQ and                         No/J.OO------:..------nOLT,AR8 (~2000. 00                                  )
   ·.~sll ill l::1nd paid lind oll.or good 'allli "nlunblc e(l\laidcrllti(ll~. tht rcceiJ.t of \\"hl~h la h~l'\Ib)" Reknowlcdgrd. cio

l
                                                                                                                                      lIorolly I:mnl.,
       e llll1 ••ell. COIII·C)'. tml1,ror. PBSi:1I nnd deliver Ullto   Ifol!ler E. Dean, Jr. and B. J. Shel-1herd
   ~     Alice, Jim            t~ells          County)               TeXAS                      • horeinnltel' unllod Grantee (whether Me o~ ",or~) all unlllyhl~d
                         (Ch.. , ............ ,.,.rlft ..tl"tb8)

                                         l/6th' Intcl~Clt In ftnd to nil of tbo oil. gill! Rnd olh"r n.lllomll in IIlId IInllor 1111,1 I1mt
  may be produCfld from the fo!lgwin,A" dcscrJb.d IlInd••ltut,tod In             Brooks               Co\lllly. 5:1110 of Te"na. to,wit:

                  See attached property description




 together with the rlaht. of In"",,, and care.. lit AU times fo; the JlVtpOse of mlnillJl'. drlll!ng. eXlllorlna. opomlillll' and davololling
 said lands fOJ" 011. p_ and o\.her mlnoral •• lind .torlnl:'. bnndllnr. trARlportlnll' and markotlnc tile _nm(l tbereCrom wllh tho ril:ht
 to romoVII from ..Id lancr all ot Or.nt•• •• prllJUN"ty lind Improvement..                .
       Tltl. l1li10 " macl. lubJoct \0 IIny rlJrhtll now .,.'atlng to any 10.... or Reigns lInder an)" TIIUd amI aubtclsUlll1 011 .. 1Il1 1:'18 I.....
 now of le:1II recordl It belllr: nderatuod nnd agreed that Gratlloo 'hall hove, rccoI~ lind erijllY iho ruwuin Jrrn::cotl \lIltlivldC!lI ill"~r~$L
 in IIIId to aU bonu.... reno. l'Oyaltic••",1 oth" henefltll whlrll mil)' accrue th"ruullder from a ...1 ACtcr Ihv ""1<' h.·I·....r unl)' in... r"r
  ·1 It covers U,e libel'. d_ribed land. I.reelscly 110 if Grantee hald bftu I\~ Uw date oC ~hv makll\Jt. of said ICIIse Ih.. "" •• ·r fir "


0  loIlR" undivided Int".....' In and to tbe I.. nel. above deacrlIK"" olld II'ranloo ono of lh, It,,ora"tllftrcin.
    . Grantor all"'" to execute _ .. turlher _ .....nco. a. mil)' be re'lulalto for tho tull nml' coml,lule .1I.s.')·m~nt Qf            rir:hl ...... 'h,
     Antl'd lind likowlae IIJrrfta (hat Grantco alutll have tho ri:dJt lit All)' time to redCunl for Gnllltor b)" Jl:1)'ment /If nil>' ""'I'lr,n!l'"
 tu..., or other lien. on tbe abo\'o deacribed land. \lJ'OII deCllltlc In J'A)10enl b)' Grolltor. ar... bet IlUb'"OJlI&ltll to) th .. I"IlI"itlK ..r 110.
 holrJ.r thereor.      '              •                 .
                                                                                                                                                                   tI,,·

      ·TO HAVE AND TO HOLD lh. abuTo det::r!bed properly IIIId 'llmnent with un an..! ainlrUlar tha rlghb. vrivil"Itt'A nlld "".
 purlenane. ther.under ur In nny wI .. bclonglnlr to tho ,old Gl'III\tC'O. their hel .... lu"",ora. runl "ull:lIll,,",\"Cr, n~cI (1 ... nl",
 do            hnoby bInd ourselves                        bella. ox..:uton. ndministl"llloNl. aw:een"r. and n"lnno Ln ",ntrlmt 3n~ r~ro\W
 defend ..II and.lnglll". the , .. id property unto Granko. their helra. lue""... ",. nnd a .. ign. aIPin.t ovr.rf per",," \Vlonll1"".\'.·,
 lawfully clnlminc In" tu claim the FIlm. or nny JlIII1 thcreor.
        Execllted tbl.     16th                 day of           December                             ,I'    7,5




,fl
lJ

                                                                                                                                                                                     ".arr
                                                                                                                                                                           'A
                                                                                                                                                                       P2057-SI485
                                                                                                                                                                           000403


                                                                                 1852
  PHOPEJ<'ry DF.SCTt:tPTION;    c..       .
.:. . '                         g.SO
                 '·V!'). . Ufl rAGE
 . The follO\~in?J ~a5c't~eC! pro1'erty situated in "Brooks County .• 'l'cx£lR, vi:/:.:

                                        li'irst 'J.'rnct
        Share A-l, containing 2734.55 acres of· land out of the "L"a Heston:'!"
  Grnnt, ol:iginnlly "WEIl:clcd to Rafael Garc!-La, a·s sho~m in a decree of
  l)Clrtition j.n cause No. 321, Jose Gan:io. l{ilmos et a1., v. Casimiro
  Garc:ia Ramos, D:I.strict Court, Brooks County, Te:<as, and described by
  metes 'and bounds thus
                    Beginntng l1t n post marked -, on tha eantcrn boundary.
                                                                                                     O
                                                                                                     L
                                                                                                      ·
              lino of a EIU):vey of 1273.2 acres felt t.muncio Garcill, for thn
              South\'lQstcrn corner of this ,survey, \~hE:nce the stUllG IImund
              marking the South\.;testern corner of the "La }!estcna" gl:'lInl: to
              RafEle.l Garcia bears S. 16 deg. 42' H. l:·8l9. 06 vllr~n. chance
              N. 87 deg. 45 1 50" E. 3992.23 varas to tl mel:lquite post marked
              X, for the,Southeastern corner of this survey, intersecting
              the eastern boundary l,ine of the "La t-lastcna" grant to Rafuel
              Garci~; thence N. 2 deg. 14' 10" \01. with thl~ said eastern        '
              boundary line of said "La Nestena" grant to Rafael Gorcia,
              at 3537.27 varas a northeastern corner of this tract and
              being also the Southeastern corner of Share Aw2 of this par-
              tition; thence N. 89 deg. 42' 40" \~. 431.28 varas for a corner,
              also being the Southwest corner of Share A-2 of this partition;
              thenct: N: 2 deg; 14' 10" W. 431.29,varas a Northeastern corner
              of this" survet and also being the Nortm'l1est corner of S1181.'\1I
              A-2 of this partition; thence N. 89 deJ. 42' 40'" W. with
              pasture fence, at 2595.71 varas leave Salada Well about 10
              varas south, at 3288.87 varas a mesquito post marked -. for
              tbe Northwestern corner of this survey, intersecting the
              eastern boundary line of the said 1273.2 aero survey for              O'
              Amancio Garcia; thence S. 1 deg. 34'. 50" l~. with the ellS tern (.
              boundary line of the said 1273.2 acre survey for Amancio
              Garcia 4141.65 varas to the place of beginning. (Abst. 2, p. 219;
                                              Second Tract
        Share B-1, containing 1093.83 acres of land. out of "La Mestana y
   Gonzalenall Grant, originally'awarded to Rafael Garcia Salinas as shown
   in a d~cree of partition in cause No •. 321, Jose Garcia Ramos et al. v.
   C~simiro Garcia RamOs, District Court, Brooks County, Texas, and des-
   cribed by metes and bounds thus --
                    'Beginning at.s mesquite post 7 inches in'diamater, marked
               -, for the Southeastern corner of this survey, whance the
               stone,marking the southeastern corner of the said liLa Mestena"
               grant to,Rafael Garcia Salinas, b!'lars S. 20 deg. 16 1 40"
               E. 9863.38 varas;
               ==_._Tbence_    s.   87_~~g.!._45'_~.Q~~ W_•.. a~ 1100   varas crosS a road
               fr(;mLR~n~b~LNuevotoLeoncifos,            at lS0972      varas cross    it    flmee ..
               J;¥Ml8~1.D*-uO.ri~ij.·. dnccr-ion•..at_l~9g.~I~v~~~s:·=s:e~~ 11~
               mesqu'Jte post-_lIliIrl(ed ~~fOr me'Southwestern CO"r'I"lcr
                                                                                            .
                                                                                      :-"'-"j}'
                                                                                  of: tMs_ :. . .____.
               survey;
                      Thence N. 2 deg. 14' 10" W. aE 3800 varas set a mesquite
               P<;lst 5 inche~ in diameter, marked E, for the Nortlwcstcrn corner
               of this survey.

               (See attached continuation sheet.'



                                          RXIIIIU'-'   II   A ti                      P20S7·S148S
                                                                                            000404

                                           1853
                                                         (VOL     93 rAGEU51
                    .'J.'hcnc:c N, 87 d(::r,. liS' 50" J~. lit 2 I f7.(, VI.Il"/).R C):(l!l~: 01 rC.·lil·'~
             runn:l.ng in CI northerly tlirllcl:ion, the Nm~t:);m:I-li.t:l'n CCll",\C:: oJ'
             C:'-Isihliro Gurcill's fj.cld fellce benrs S. 0 c!cg. 1,0' H. 2/+ V'IH,i.
             at 1)11.65 varas the NC>l:'thr.Hlstm."n C01"na1." oJ:' thi.1'> t:l"':1'~l:, m:d •
             als,) 1.J~dJlg a Nortln"clstm:n cO.rncr of Sh~:re 13··2 (If th:i.s pu::-
             tit:i.on; thence S. 2 deg. lif' 10" E. 272. Tl varon for N';ll:th-:-
             east~rn COl"nCr of this tract and also boin{; the SouthCHlstcl=n
             cor~er of Share ~-2 of this partition;

                   Thence S. 2 deg. ,14' 10" E. at 1410.23 Vflras crOIiG ro:~d
              from said Rancho Nuevo to Leul'ldro Gon~nJ.cs' ranch,    1796.23            at
              varas cross road from said Rancho Nuevo to Tacllb0Y:3. at
           .. 3527.23 va~as the place of beginning. (Abst. 2, p. 220)
   Said Share A-l and B-l are dcscrih~o in the partition decree
   datecl DecernbE\'r 13, 1927, in Cause t~o. 321 in thft D:l.!'Itrict Court of
   ~rookB County, Texas, in suit Rtyled Jose Garcia namos et nl. VB.
   Casimiro Garcia R~os, et 81. recorded In Volume 2, Page 377 of
   the District Court 1,\inutes of. Brooks County, Texas; said Sharo A-l
   being out of, the "La nestena" Grant, Brooks County, Texas, 'md said
   Share B-1 out of. the "r.a Mestena y Gonzalena!' Grant, Broo)ts Couni<y,
   Texasr both said Share A-l Rnd B-l as described in the 1927 partition
   decree come out of Shares C-l and C-~ as described in the deed of
   partition datpA June 1, 1923, recorded in Volume 8, Pages 28-35 of
   the Deed Records ot Brooks County, Texas.

                        ,         Third Tract
              .                                        (1) ~ acreS of land out of ",.--
              Share 27 set aside to JQse G. Rllmos in "La Encantada and E1                               r
              Encino del Poz:o Grant", J. M. & L •. Chapa , Original Grantee, in
            'cause No. 242, J. R. Scott, Jr. et a1. v. Celso V. Ramirez: et
              al., District Court, Brooks County, lO/llths of ,qhich 1s in .
              the name of Jose Garcia Ramos and 1/11th in the name of Casimi~o
              Garcia Ramos 'as shown by d'ecree in Estate of Justo Garaia Ramos J
              deceased, Brooks County Probate Court, and (2) I acre of land,
              undivided, out of the JOlie Ma. and Luciano Chapa Grant, Brooks
.             County, 10/llths of which is in the name of Victoria G. ~antu
 .. _--- _..- ~nd I/llth of which 1s 1n'the name of Casimiro Garcia Ramos as
              shotm by probate proceedings in the estate of Justo Garcia Ramos
              deceased.                                              . '

                                     Fourth Tract
         Lot Seven (7), Block Three (3), original ~ownsite, Falfurrias,
         Brooks County, Texas.




                                                                                         P2057-S1485
                                                                                            000405


                                             1854
    '.'




 THE STATE OF                    TEX~~ 93 ~tu152
 coUNTl OF JIM WELLS •
       ••FORE"MS. eh. uoder,ign.d auehoriey, on ehis day per.onally
                                                        elia
  appeared Aurora G. Alvarado. Guadalup. oarcia ...... Rafaela G.
  Goozal ., Jesus oarcia .... '. Gloria G. Garcia, Crise     R. oarcia,
         E1
  Maria e ..a G. Garza, Maria J."oarcia. Ovidio R. Ga••a. T.... a G. Ramo'
  and Joa. A. Gonza1•• , knoon to mo eo be eh. per,on••ho'· na'" are
                                                           d
   ,ub,cribed to the foregoing instr...oe , and acknOW1edg. to me that
   eheY ..ecuted the , ... ,or the purpose. and coosideration eherein

   e"pressed.



                                                            ~JIUlJth~
                                                               Not       bUe in and for
                                                               Jim 'Wells County, Te"as.
                                                                  (peggy Davidson)



       ...
       ,
                THE      STATE      OF ~EKAS,
                coUNT'!       OF    JIM WELLS •                                   onal1
                          • RFORB MS, ehe undar.igned auehority, on this day per.      y
                     appeared O...r Gar.ia and wi'e, Viola Ga••ia , known to . . eo be ebe
                                                                                    e
                     pe......hO.' n.... are ,ub,•• ibed to ehe .oregoing in....... • and
                     acknow1 dg. eo .. that ebey ....ue.d the ,... '0' ehe pu.po.'. aod
                                                                                                I
                                                                                                l
                            e d
                      eonsideratipn therein expTessed •.
                                                            of office thiS 19th day of
          ." (.,':.'        G:iven under my hand and seal                              ,..
                      p'~c",n".Jer, 1975.
                                                               6?~~
  .•..
           ,,,,,~.     '!~~.- .. '
                   il~ l:
       .. " ' ............I$1 ", .'.'   •
                                                                 bUc
  .. r
  :',:<. . !....~: .~.\. ..~..:.'I
   .•.' ,'.".. . ·.~if •~I.' ~.., •.
          .•                     ,..                               No r           in and for
                     '>i!~''''i.I.'''' . '                         Jim 'Wells County, Texas .
                      )
    . \, ,'If:lt1~~f._::{' ,
                                                                      (Peggy Davidson)
                  . .. ~,
       " .... ·1 .•

                                     _.
                                              f·



                                           .. .
                 ..      .....' . i · ~r!"'.... ~
                              .........  :.         "
                             ,




.. .   ..\.,.




                ,.
                .'




                                                        1855
 ....         ~               : t f.t( •
                           _ .••
                                  ...•
                                                                                                                                                                                                                             ....
                                                                                                                                                                                                              . '. :' ..":,..< . '..' .
    ': '~~.

                                                                                                                                                                              '.    ,...                                                     . ;.          ....       '.



                                                                                                                E. D·EAN.· JR. '. ::'~: .':";:. '. . ... :...........:.:. :',<:;: ...: . . : . "'.
                  .'        .f         .

                                                                                              : HOMER.

                                .... '     "
                                                                                               '. ..'     P:5"7~~~YDf::~RA~~ .~: ':'.:.?:~.;, .:: >. ::. ( ;:!'.: ~~.~t·::::::' :'::>~':.' :'.:' . '
                                                                                                           : ALICE. TEXAS 78332                     ".:        .:'j: :<:.;:.:;. .                           " :.. ' .: .. '..                              :.'" .. ,. ."
                                                                                                                            .      .                :'.' ~.. ~    .,;                                   "        .'        '.:':"~::             "                "            '.
         " .. '                    "       i-'."ASl: FIRST.5T •                                    .' .                         ".                 '.                     ..:." :.:. . , ' . .                     ' •• '   :···,,·,:;,Eu."HO~1!                               '"        .'
         • '.               :.·FILE.•           673-01. ........          . "':"                   ... January                  2~,"   .1976 ..... :.:,,, :: .. , .. :'.:.':-.::                                   .:···."::~tSlzil.c.ol.J.· . :,



    :; ! ' : : . .....
 ..... . .: 'l'O •. ' The Casimiro
                                                                              '.. '. .' ,,' .,'.
                                                                              ~arcJ..a R.amp~
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: ..:.' .. '.~ ·....the. net SUlll ·of ~5274·. 31 h~ nas ·l?a.~d me 'as ~+uste:e.f:·pi'!ls t:~e" $1·250~0(r. :,\~,.' :.:.
 . . ";;." /y()u··deposited,. malting'a' total. of .$6',:5.2(.31;' :i.~ave·:dedlJcted.~ttr avreea/:;:::.,::
     '. '.:, ca~h.:attorney'·s fee '0'£ $.5·,500.QO' 'and my aotual 'Out'~~'f poQk~t ·..82q)enses·, ':,'
 ::--: :':.' of ·$557.54 'and Mr. Sh¢pherd's· ..ac:tualou:t of· pooket·~Xpens.es .o·~· ,121.00 . (:"':.;';
." .,.:'. ,: leaving a net of' $345 • 77 to be .divided in six . parcel's t.o eacnof:. the .~<.';" .',}:
. . , : '.: : .. faDdlles • r enclose: a clu!i;k for .~ach 'of' you for 'yo:u£ lffi', 9f ·fnl~· .,; . >~ :':'.:.,::':
.:..... . . $,345.77 •.' ·Included in mY Qut of .. pockee :eXpenses: ':is. $3·50 .. QQ .w.e. paid';'" . ".....
:: .. ' '" th~ appraiser, ·the··.details.:qf· which. 'are 'sh<?WIl on~he:·a:t.tached ·lJheet··.· :';-.,..' .... :.
,.<.:':'...... .,: ma~ked' HE!> and Mr. Shepherd's out of pOcket' ejtp~nse's' ·are.:;lbqwnin:'; . ::·/, ; . "",
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                                  . " Both Mr. Shepherd a~ t th~ you very much: for. titel::·bP~ort~nit.Y'. · ..
.': ." .. "of                       servi~q you and ~bel.i-e,!e :we 4ave. gotten yo~ an·,effeot~Ve:-·'fart~tion: '.
                             . :and possession of your land and :t. hOpe .'you are :'~s h.ppy: w~th :the. out-.. :.' ... : .
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                                                      A1ice, Texas.78332                                                                                         ••••• !'

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                                                                                                                                                                                                                                                                                                                                                                       Dean
                                                                                                                                                                                                                                                                                                                                                                       0072




                                                                                                                                                                       1859
                                                                                                                   , '
                          nED/wb   0673-01            12/31/75



                      TUE STATE 011' TEXAS                                       FlU: NO.· 36 Igg
                                                                        KNOW AIJ. MEN BY 'l'HESE:PRRSENTS:
                      COUNTY OF BROOKS
                                                                                        'vat   93    I'ACE   739
                                       That whereas, we Jesus             Gar~ia,   also known as Jesus G. Ramos,
          '--1 whose wife iE Tomasa G. Garcia, Cristelia R. Garcia, a widow; Gloria
          o   !

                      Garcia"whose husband                 .
                                                          ~s                 *
                                                               Leqpoldo Garcia,      Oac~~_~~rcia,    whose wife is
                      Viola Garcia, Aurora Garcia                    Alvarado~   a widow, Rafaela G.         Gon~alez,
                                                                                                                                       ,
                      whose·husband is Jose Gonzalez, Guad~lupe Garcia, whose wife ~s Maria
                                                                                                         , :>'
                      J. Garcia, and Maria Blena G. Garza, whose husband is OVid1o~Garza
                      have and hold in cammon the lands hereinafter mentioned, and are desirous
                      of making partition of the same, which lands axe more particularly
                      described as having been set aaide to ·these parties in a partition
                                                                                                                                   ,   """\
                      ::Iudgment in Cause Number 2323 in the District Court of Brooks County,
                      Texas, styled Jose A. Gonzalez at al va. Tomasa G. Figueroa et al,
                      ~ated    December 8, 1975 in paragxaph IV thereof, to which reference
                      is here made          f~r   all purposes,
                                       NOW, 'therefore, in conaidexation of the premis•• and                       ~o    effect
                      such partition, it is               ~ereby     covenanted, granted, concluded and Agreed
                      by and       be~       said parties, and each of them, covenant, grant,
                      conclude and agree, fox himself, themsel~es, his and their heirs and~
                      assigns, that a partition of aaid lan4 be made as followsl
                                       1.   The said Jesus Garoia           .hal~   fram henceforth bave, hold, ,
                      possess and enjoy, in savexaltYi by himself and to him and his heirs and
                      assigns, for hiB part, share and proportion of the saia lanas ana premisea,
                  ·free from any and',all                 c~aim!'l   of the other parties hereto, all that tract
              , of land in Brooks County, Texas:
    ~~~1-~~;-~~-~;--~~~;-~_=~--;rP:~1:i~;--~'83:&mi~~!··-                                                                -..~. .                     --..   ~
_~ ~_.l   •       -                -   .fIIt-Mee..... ~s~b • .-:Gr~:.a:tifiat1r~~.!!.:!!....~~::==::-.----:=-:~ ~_-..:-c _- u- _-:.c .-=---~-

                                                  ,
                                       at the SOutheast corner of Raid Sbare 11 for the Southeast
                                       corner of this Share 1~ whicb is II mesquite pos~ 7 inches                                          EXHIBIT
                                       in diameter marked with II - for the squtheast corner of
                                       this tract whence the stOlle marking' tbe southeast corner
                                       of the -La Mestena" Grant to Rafael Garcia Salinas bears
                                       South 20· 16' 40· east 9,863.38 varas, for tbe southeast
                                                                                                                             I C-.
                                       corner of this Share lr
                      •     not joined by my husband as this ?roT.'crty is                Illy septlrate [>rol,crty
                            and no pArt ot ou~ homestead,                                                                              P2057-S1485
                                                                                                                                         000408



                                                                       1860
                                                               pa~e   2      0673-0t      12/31/75'




                                                                      rVOl     93 tAGEQ40
                                                               ~nce       South 87· 45' 50· Nest along the South line of said
                                                           Share 81 for the south line of this Share 1, 1644.61 varas
                                                          'or 4,568.36 feet to a mesquite post marked with four horizontal
                                                           slashes for the southwest corner of Share 81 and the southwest
                                                           corner of this Share 1,
                                                           '!'bence Nortb 2° 14' 10· 'I\'est 2,085; 97' feet for the north
                                                           west corner of tbis Sbaru 1 and the southwest corner of
                                                           Share 2 of this partition,
                                                                                                                                                   II
                                                                                                                                                   -'
                                                           Thence North '87· 45' 50" east'and'parallel to the south
                                                           line of said Share Bl, 4,568.36 feet to a point in the
                                                           east line of' aa1d Share B-1 for the southeast oQrner of
                                                           Share 2 of 'this partition and the northeaat corner of U1a
                                                           Share 1,                                  ,

                                                           Thence South 2~ 14' 10· east along the east line of aaid
                                                           Sbare 1-1, 2,085.97' to the place of beginning and containing
                                                           218.766 acres of land,                                ,   '

                                              And the other parties hereto 40 grant, ~lease an4 conflm unto ~e
                                              said Jesus Garcia, the pr~ses above de8oribed,tc have and to hold                              :;.

                                              in eeverd ty the above described, ,prMlises with, all and singular tbe
                                              hereditaments and appurtenances thereunto belonging unto the ,said
                                              Jesus   Garci~,     his heirs and assigns forever, sub,ect to the,roadway                            I
                                              ea.ameD~   along tbe east side thereof                  ana   the mineral reservation here-

                                              after set forth.
                                                                                  ./
                                                          2.      Tha said Cristelia R. Garcia, a               wi~,    Gloria Garcia
                                                          ,~~ia, ::J~ntly                a, their interest may appear, hereafter
                                                         ,", " .
                                                                        ,G~~ia familYf ~ba11 from henceforth have, hold,

                                                                             in &e~r':lty, by thems\t1ves and t.o them and their
                                              heirs and assigns, for their part, share and proportion of the saie!
                                              lane!s and prUds", free from any and all olaiaa of the other parties
                                              hereto, all that
                                                  ,
                                                                          tra~t   of
                                                                                   '
                                                                                         land situated in Brooks County,
                                                                                                            ,
                                                                                                                             ~exas~   more

                                              opa~~--=~1l0!l!l::c- -                                                                               -


                      .---- -.. -------------- ~~ p~ridthm                                  ~     ~~''--
--                        - -
_ _ _ _ _ _ _ _ _ _ _ _ _ _ .-0 _ _ - " _ _


                                                                               ib:Lj::            cuE:::ar::ajd:B::1_QUPualtt.: _"" -- -- -                  _n-_-__ -_ -_'

                                               ;o==.t0:!~::, a::;i!!ii;u:w::..\:i.;:;;:::;: -~~n~~8~:-'                                                                   .
                                                          as shown in the partition aecree in Cause No. 321, in the
                                                          District Court of 'Brooks county, Texas, described by metes
                                                          and boune!a thus:




                                                                                                                                                   P2057-S1485
                                                                                                                                                     000409


                                                                                              1861
                      .
                     ~Age ~            U67301             12/31/75




                                                                                  VOl      rACE
                                           Be9inning at the northeast corner of Share 1 of thia Partition
                                                                                                                                                 93              741
                                           which point ia in the east.line of said Share a-I and from
                                           whence the southeast corner of said Share B-1 bears south
                                           2· 14' 10· east 2085.97' for the northeaat corner of Share
                                           1 of this partition and the southeast corner of this Share
                                            21

                                           Thence South 87· 45' SO" west along the north line of Share
                                           1 of this partition and parallel to the south line of said
                                           Share 8-1 4568.36' to a point for th, northwest corner of
                                           Share 1 of this partition and the southwest c~rner of this
                                           Share 2,
                                           ~ence north 2- 14' 10· west along the west 1in~ of said
                                           Share B-1 2085.97' 1;0 a point for the DOl:thweat corner of
                                           this Share 2 ana the southwest cornel: of Share 3 of this
                                           Partition,
                                           Thence north 87- 45' SO" east and parallel 'to the south line
                                           of said Sh~ B-1, 4568.36' to • point in the·east line of
                                           saiet Shan B-1 for the northe.. t ooz:ner of. this Shue 2 and
                                           the southeaat co:-ner of Share 3 of this putition,
                                           Thence south 2° 14' 10· east along the eaat line of said
                                           share B-1, 2085.97' to oil point for the aoutheast corner
                                           of this Share 2 and the place of beginning and the northeast
                                           corner of Share 1 of this partition,


                    And the other parties hereto do grant, release and confirm unto the
                    said Justo Garcia family, the premises above described, to have and
                    to bold in severalty the above described premises, with all and singular
                    the hereditaments and appurtenances thereunto belonging, unto the aaid
                    Justo Garoia family, their heirs and assigns forever, subject to the
                    roadway easement along the east .ide thereof and the mineral reservation
                    hereafter set forth.
                                           3.       '!'he said Aurora Garcia Alvarado, a w1aow shall from
                    henceforth have, bold, poaaes8 and enjoy, in severalty,                                                                            by     herself and
                    to her and to her heirs and assign.,. for her part, share and                                                                                  pro~~~!Q~
            ~_j   , _ _ _. _   _,~",:::::::::=:::=-====:::_~. _~:::. :~_':.~-::'~-=:::::::::~:::~::::7:;:=:::="':::"':":::':=~----=~~ :':::::~ ~",'C.:::::..~-~c:::';'_7_-- "--~,-~- _-~_
            -1- !>f__.tlle said                 lan4_flDd_p.rem1.a~.~..:.~...:and-..::au:.:c'!~~~~--:-:
--~-~----
                  . othe;·~pa;tie;iwto~-~iriiiii-t .... ctoTian4 si_~t.ea·i~--~. Cu;W,-'
                    ~exa8,          more particularly described as follows:
                                           Being out of Shaxe B-1 containing 1093.83 acres of land out of
                                           -La Mestena y Gonsalena u Grant, originally award~d to Rafael
                                           Garcia Salinas in Cause No. 321, in the ai.trict ~ourt of
                                           Brooks county I ~exas and being more pl\rticularll· described
                                           AS follows;


                                                                                                                                                                                            P2057-S1485
                                                                                                                                                                                              000410



                                                                                         1862
~a9'~,~ ..   0673-01         12/31/75




                                                           fVOL    93!'AtE 743
               218.76 acres'of land out          of Share B-1 containing 1093.83
               acres of lana out of -La          Mestena y Gonsalena" Grant, originally
               awarded to Rafael Garcia          Salinas as shown in the partition
               decree in Cause No. 321,          District COurt, Brooks COunty,
               Texas, more particularly          describe4 as follows:
               Beginning at a point in the east line of said Share B-1
               from whence the southeast corner of said Share B-1 bears
               south 2· 14' 10" east 6,257.91' for the nortbeast corner
               of Share 3 of this partition and the southeast corner of
               this Share 4 of this partitionr
               Thence south 87 8 45',50· west and parallel to the south
               line of said Share B-1, 4,5,68.36' to a point in'1:he west
               line of said Share a-l for the northwest corner of Share
               3 of this partition €or the southwest corner of this Share
               4,                                  .

               Thence north 2· 14' 10· west along the west line of said
               Share 8-1, 2085~'7' to a point for the northwest co:ner of
               thls Share 4, which point is also the soutbweat co:ner of
               Share 5 of this partition.
               '!'hence North 87· 45' SO' east parallel to the BOUth line of
               said Share B-1, 4,568.36' along the south line of Share 5
               of this part! tion to a point in the aast lina of said Share
               B-1 for the northeast co:ner of this Share 4 and the southeast
               corner of Shue 5 of this partition,
               'l'hence south 2 8 14' 10· east along the east: lln~ of said
               Share 8-1, 2085.97' to a po1n~ for the southeast corner of
               this Share 4 which is the northeaat corner of Share 3 of this
               partition and the place of beginning,               .,

And the other parties bereto do grant, release and confirm unto the
said Rafaela Q. GonzaleZ, the premises above described, to bave and to .
hold in severalty tbe above described premises with all and singular the
hereditaments and appurtenanoes t~ereunto belonging unto the said
Rafaela G. Gonzalez, her heirs and assigns forever, subject to the roadway
easement along the east: slda thereof and the mineral reservation here-

after set forth. •
             ~,._~=~ ~~~~cg~~da;~R~~arc~~, ~,!f~8~ _~!.~~ is Haria J. Garoia


by   hecself and       \;0    be¥ aDa her be 1 ril ana a881vo,; tor her par!!..L 1Jba:e-
and proportion of the said lands and.premises, free from any and all
claims of the other parties hereto, all that tract of land situated in
Brooks County, TeXAS, more particularly described as followsr


                                                                                           P2057-S1485
                                                                                             000411



                                            1863
                  rage 6 0673-01        12/31/75



                                 VOL 9~ r~744
                              218.766 Acres of land out of Share B-1 containing 1093.83 acres
                              of land out of nLa Mastena y Gonzalena" Grant, originally
                              awarded to Rafael Garcia Salinas as described in a decree
                              of partition in Cause No. 321, District Court, Brooks County,
                              TeXas and more particularly described by metes and bounds
                              as follow&1I
                                                                                                                      -,'I
                                                                                                                      ,   I
                             'Beginning at a point in the east line of said Share B-1
                              from whence the southeast corner of SAld Share 8-1 bears                                ~ -' !
                              south 2· 14' 10·, east 8,343.88' wbich point is the northeast
                              corner of Share 4 of this partition and the southeas!: corner
                              of this Share 5,
                              Thence south 87· 45' 50· west and parallel to th~ south line
                              of said share B-1 and along the north line of Share 4 of this
                              partition, 4,568.36' to a point in the west line of said Share,
                              D-1 for the southwest corner of this share and the northwest
                              corner of Share 4 of this partition,
                              Thence North 2· 14' 10· wast along the west line of said
                              Share D-1, 2,211.68' to the northwest corner of said Share
                              8-1 for the no~we8t corner of this Share 5 of this partition
                              Thence North 87·       45' 50· Qast along the north line of said Share
                              D-l, 3810.14' or       1371.65 varas for an upper northeast corner of
                              this Share 5 aDd       also the northwestern corner of Share B-2 of
                              the partition in       sua Cause No. 321,
                                                                       "

                              Thence south 2· 14' 10·'eaat along the west line of Baid Share
                              B-2, ,272.77 varas or 757.69' for the southwest corner of s.i4
                              Share B-2 and an inner corner of'this tract,
                                                                                                                      -
                                                                                                                      . t
                                                                                                                      .'

                              ~ence  North 87-, 45' 50· east along the south Line of said
                              share B-2, 272.77 varaa or 757.69' to a point for the lower
                              northeast corner of said Sbare B-1 which is the southeast
                              corner of saia Sbare B-2 for • lower northeast corner of
                              this tract, Share 5,
                              Thence 80Uth 2- 14' 10· east along the east line of said
                              share B-1, 1453.97' to the northeast corner of Share 4 of
                              this partition, the southeast carner of this Share 5 ana
                              the place of beginning.


                  And the other parties hereto ao grant, release and oonfirm unto the
                  said Guadalupe Garcia, the p~emi8e8 above desctibed, to have and 'to
                  !'itnlS''"'trs'swef!ilUy·t-lRraiJGve 4as=1be4· premil'88-rii:h .. aU,·. . . .H9al~
                                                                                                                      n'
- - - - - - --   ~-"-,---.--------,--.---     - -- - - " - - - - ---_._-----_.-
                 .t:1nLl:Iend1toem:s·M~·~enalioes- the!nn1:o~ bel~=";=.!'9=..=\Dl:':_.=~=.:=.t\be:::=
                                                                         ...=                  ..;::="::;';ld -
                                                                                                                  ,:..!:
                                                                                                                  ,
                                                                                                                      t.-'
                  Guaaa1upe Garcia, hls heli's and as81gn. fOrever, sUbject to the'
                  mineral reservation hereafter. set forth.




                                                                                                                          P2057-SI485
                                                                                                                            000412



                                                           1864
Page ,7   0673-0l 12./¥/7,5




            6.
                                                  f'VCl93     745
                                                            !'ACE
                 '!he said Maria Elena G. Garza, whose husband i. OVidio
G~rza   shall from henceforth have, hold, posBess and enjoy, in severalty,
by herself and to her and her heirs and assigns, for her part, share and
proportion of the said land and premises, free from any and all claims
of the other parties hereto, all that tract of . land situated in Brooks
                                       .
County, Texas, more particularly described as followsl
           222.30 acres of land out of' the northweet corner of Share
           A-l, originally cont~ning 2734.55 aares out of the "La
           Hastena D Grant, originally awarded to Rafael Garcia Salinas in
           the partition decree in cause Jlo. 321 in the D:l.strict Court of
           Brooks COUnty, Texas, sai4 222.30 acres'of lan4 being out of
           Abstract 219, Brooks County, t'exas which 222.30 aores of land
           is more particularly described by me'bes and bounds a8 follows I
           Beginning at the Northwest corner of said Share A-l a mesquite
           post marked - for the Northwest corner of said Share A-I and
           the Northwest oorner of this 222.30 aare tra~ of 1and,
           Thence South 1· 34 I SO· weet with the West boundary line of
           said Share A-l 3111.81426 feet to a point for the S~ corner
           of this 222.30 acre traat of land,
           Thence South 89· 42' 40'1 East and para1ie1 to the no~th line
           of Share A-l 3111.81426 to a point for the Southeast cor~er
           of this 222.30 aore traat,
           Thenoe North 1° 34' 50· E, parallel to the West boundary line
           of 8aid Share A-l 3111.81426 feet to a point on the North
           line of said Share A-l for the JlE corner of this traat,
           'Thence North 89° 42' 40· West along the North line of said
            Share A-l, 3111.81426 feet to the P1aoe of BeginningJ
           There is alao conveyed to Maria Elena G. Garza, her heirs
           and assigna a z:oadway easement 30' wide out of and along
           the west line of said Share A-1 f%Oll its 8out.hwest corner
           to, tbe southwest corner of sai4 222.30 acre tract,



And the other parties hereto do qrant, release and confirm unto the




the hereditaments and appm ten.nee. tbereu~t:.o bilcm9rn~-unm_l:tm: s~1d
Maria Blena G. Garza, her heirs and assigns forever, subject to the
mineral reservation hereafter set forth.
          6e. This partition is SUbject to a mineral doed from the under-
s19nod to Homer E. Dean, Jr. and B. J. Shepherd dated Deoember 16, 1975,
                                                                               P2057-S1485
                                                                                 000413



                                 1865
 1:'a96 8   Q673-01
                  (vtL
                         12/31/75 ,
                         ,a.l",lit7
                                    ,0
                                   qO
                                                                              ,"

 of reoord in ~o~. r3~ Pages 649-652, Deed Records of Brooks County, Texas,
 which is not affected hereby.

             7.    There is hereby oonvoyed to the owners of each of Tracts
 1, 2, 3, 4 and 5 of this partition which tracts are all out of said
 Share B-1 a roadway easemant 30' wJ.de out of and ~long the east line
 of said Share B-1 from its southeast corner           to    the southeast corner           i~
 of said Share 5 of this partition set aside to Guadalupe 'Garcia to
 allow access to each of the shares         ~erein   partitioned numbered 1 through
 5 from the roadway running along tha south side of said Share B-1 and
 the south line of Share 1 of this partition.
             8.    All oil, gas and other minerals in ana under all the
 property heretofore owned in common between'the undersigned shall                 rema~

 uhdivided ~ith the ownersbip being v.sted as the partie. presently owned
 the same anc! as J.. more partioularly Bat forth in tbe final ;tu4graent

 in Cause No. 2323, dated December 8, 1975, styled Jose A.               Go~zalez,      et al
 VS.   Tomasa G. Figueroa, et al, in tbe District Court of
, Texas, provided, however, that the c.wnor of the surface estate as
                                                                       Broo~s   County,
                                                                                                -,
                                                                                                 r
 partitioned herein, his or their heirs and a.signs, shall have the
 sole and exclusive right'to execute all 01J, gas and mineral leases
 upon the land, the surface estate of which i8 partitioned to the parties set
 forth above and it will not b.e necessary for the other parties hereto
 to join in the execution of such 1e.ses, the tenia of which shall be
 confided to the discretion of the owner cif the surface, their heirs
 and aasigna, provided that no lease mar be executed upon said premises
 or any part thereof calling for a royalty of less than 1/8 on 011, gaa
 and other mineralis ,                                   .
                     .and the bonus frOll1 auch leases and all ,delay rentals




 1/3 shall be divided 1/6 each, that is 1/18th each to the parties hereto'
 that is 1/10th to Jesus Garcia, 1/18th to Cristelia R. Garcia, GlOria
 Garcia and Oscar Garcla, jointly; l/lOth to Aurora Garoia Alvarado,
 l/18th to Rafaela G. Gonzalez; 1/18~h to Guadalupe Garcia, and 1/18~,
 to Maria Elena G. Garza, their          heir~   nnd assigns.    All   BumS   due the           P20S7-S1485
                                                                                                  000414


                                         1866
                            ?a.se   ,9' 0673-01   12/31/75
                                                                                                                 . '.   . '.

                                                                                          !'VOl   93   rAGE.   747
                            mineral owner with a non-executive right may be paid or tendered to
                            any such non-executive right owner or to the ,?redlt of Buch non-executive                            I
                                                                                                                                 'I
                            right owner in First National Bank, Falfurrias, Tex~s which bank and                                  i
                            its successors are designated as the holder of the non-executive rights                               I
                            agent and shall continue as the depository for the holder of the non-
                                                                                                                                  I
                            executive    right~   interest in all bonus, ,rents and royalties payable
                            under-said leases, it is further agreed that the holder of the executive
                                                                                                           ,
                            right, his heirs or assigns ~y pool and unitize the above described
                            land on which he holds such executive right or any part thereof with
                            other landS and :b i    n !i   the mineralS owped by the non-executive right
                            holder in so doing, in which event the holder of the non-executive
                            righ~, his heirs or assigns, shall be seized and poBseBBed of hiB
                            p~oportionate    part as set forth above of all royalty that may be
                            allocated to said land or any part or parts thereof as a part of a
                            unit of development and provided further that such pooling and unitization
                            may be made either upon a pro-rata acreage.or a density hasia.
                                         IN, WITNESS I9BBREOJ', we have hereunto sst our banaa this

                            31st day of December, 1975.




                                                                       ~a           Gaxcia



                                                                       Cristelia.a. Garcia


                ~"   ", ~
"-   ~.~-------.,-~-~----.--~-.--~--~-~-""'




                                                                      '";i;j'e:pl   II   ULCla




                                                                                                                               P2057-S1485
                                                                                                                                  000415



                                                                   1867
  ...
....    '.
[4ge 1-      -783--1" 12/31/75·

                'lei' 93    fAU   748




                                         V.iola Garc.ia




                                         Jos. Gonzale.



                                                                                I
                                                                           ;--.~
                                                                              ~

                                                                           . :I
                                                                                  .
                                                                                  I
                                                                                  I

                                         m44li, £k.,..,
                                         Mar.ia Elena G. Gar.a
                                                                 J...~.,

                                         0914.io Garza

                                                                               .!
                                                                                  i
                       ;.




                                                                           P2057-S14"85
                                                                              000416



                                        1868
        ~.A~.··l1         0673-01   12/31/75

                                                                    [VOl   93   fACE   749


        COONTY OF JIM WELLS
                           Before me, the undersigned authority, on this day personally
        appeared Jesus Garcia, Tomasa Garcia, Cristelia R. Garcia, Gloria Garcia,
        ~pelde            Sare'.' Oscar Garcia, Viola Garcia, Aurora Garcia Alvarado,
        Rafaela G. Gonzalez, Jose Gonzalez, Guadalupe Garcia, Maria J. Garcia,
        Maria Elena G. Garza and Ovidio Garza known to me to be the persons
        whose names are subscribed to              ~he   foregoing instrument, and acknowledged
        to me that they executed the sama for the purposes and consideration

        therein expressed.
                           Given under   my   hand and seal of office, thi.s    the~ day
        of      I)lkt?t~ er,          A. D. 191J..
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                                                                                            1870
APPENDIX TAB 5
                                                 CAUSE NO. 08-03-14557-CV

ISRAEL GARCIA, MARIA GARCIA,                                §        IN THE DISTRICT COURT
PRISCILLA MUNOZ VILLARREAL,                                 §
ALONZO R. MUNOZ, CHRISTOPHER                                §
MUNOZ, GUADALUPE GARCIA, JR.,                               §
LYDIA G. VASQUEZ, ROSA MARIA                                §
CHAVERA, CASIMIRO GARCIA,                                   §
HECTOR GARCIA (SON OF MARIA                                 §
GARCIA), OSCAR GARCIA (SON OF                               §
MARIA GARCIA), ROEL GARCIA,                                 §
ALBEZA SCHLICHT, ADRIAN GARCIA, .                           §
TOMASITA C. RAMOS, ALEJO GARCIA,                            §
ALEX GARCIA, JR., OMER G. RAMOS,                            §
REYNALDO G. RAMOS, HECTOR                                   §
GARCIA, (SON OF TOMASIT A RAMOS)                            §
SYLVIA GARCIA, VALDEZ, SYLVIA                               §
GARCIA CANTU, CATHY GARCIA,                                 §
CYNTHIA GARCIA, JESSICA GARCIA,                             §
BRENDA GARCIA, RITA L. GARCIA,                              §
ALARICO"GARCIA, ISRAEL GONZALEZ,                            §
 ISAURO GONZALEZ, ANA CELIA                                 §
GONZALEZ GARCIA, ANABEL H. RIVAS                            §
AND MARIA G. HINOJOSA, RENE                                 §
ALVARADO, SR., RENE ALVARADO, JR.,                          §
EUSEBIO MARTINEZ JR., OSCAR                                 §
GARCIA (SON OF CRISTELIA GARCIA)                            §
DIANA DAISY PEREZ AND VIOLA                                 §
GARCIA, GLORIA GARCIA, LUDI                                 §
MARTINEZ, DIANA M. FLORES AND                               §
ALICIA LEE                                                  §
                                                            §
VS.                                                         §        79TH JUDICIAL DISTRICT
                                                            §
RICHARD GARZA AS THE                                        §
INDEPENDENT EXECUTOR OF THE                                 §
ESTATE OF HOMER E. DEAN, JR.,                               §
DECEASED, DEAN PARTNERS, LTD.                               §
AND B. 1. SHEPHERD                                          §        BROOKS COUNTY, TEXAS

                       PLAINTIFFS' THIRD AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

          NOW COME Israel Garcia, Maria Garcia, Priscilla Munoz Villarreal, Alonzo R. Munoz,

Christopher Munoz, Guadalupe Garcia, Jr., Lydia G. Vasquez, Rosa Maria Chavera, Casimiro

P2057fSI485 IRL LIMB            11/18/08/lef '
PlaintiffS' Third Amended Original Petition                                               Page - I of 65-

                                                        2051
Garcia, Hector Garcia (son of Maria Garcia), Oscar Garcia (son of Maria Garcia), Roel Garcia,

Adrian Garcia, Albeza Schlicht, Tomasita C. Ramos, Alejo Garcia, Alex Garcia, Jr., Orner G.

Ramos, Reynaldo G. Ramos, Hector Garcia (son ofTomasita Ramos), Sylvia Garcia Valdez, Sylvia

Garcia Cantu, Cathy Garcia, Cynthia Garcia, Jessica Garcia, Brenda Garcia, Rita L. Garcia, Alarico

Garcia, Israel Gonzalez, Isauro Gonzalez, Ana Celia Gonzalez Garcia, Anabel H. Rivas and Maria

G. Hinojosa, Rene Alvarado, Sr., Rene Alvarado, Jr., Eusebio Martinez Jr., Oscar Garcia (son of

Cristelia Garcia), Diana Daisy Perez, Viola Garcia, Gloria Garcia, Ludi Martinez, Diana M. Flores,

and Alicia Lee ("Plaintiffs" or "the Garcias") and file this Second Amended Original Petition

against Homer E. Dean, Jr., through the personal representative for his estate, Rufus Lopez, Dean

Partners Ltd., and B. J. Shepherd (collectively "Defendants") and for causes of action would show

as follows:

                                                      I.

                                              PARTIES AND SERVICE

          1.        PlaintiffIsrael Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          2.        Plaintiff Maria Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Brooks County, Texas.

          3.        Plaintiff Priscilla Munoz Villarreal, is an heir and descendant of Casimiro Garcia

Ramos who died in 1934, inheriting an interest in southern Brooks County lands commonly known

as "Rancho Nuevo" and "Salado Ranch." She is a resident of Bexar County, Texas.

          4.        Plaintiff Alonzo R. Munoz is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

P2057/S1485fRLLIMB             11/18/08/1ef
Plaintiffi' Third Amended Original Petition                                                Page - 2 of 65-

                                                   2052
Nuevo" and "Salado Ranch." He is a resident of Bexar County, Texas.

          5.        Plaintiff Christopher Munoz is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          6.        Plaintiff Guadalupe Garcia, Jr. is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          7.        PlaintiffLydiaG. Vasquez is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Brooks County, Texas.

          8.        Plaintiff Rosa Maria Chavera is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." She is a resident of Jim Wells County, Texas.

          9.        Plaintiff Casimiro Garcia is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          10.       Plaintiff Hector Garcia, the son of Maria Garcia, is an heir and descendant of

Casimiro Garcia Ramos who died in 1934, inheriting an interest in southern Brooks County lands

commonly known as "Rancho Nuevo" and "Salado Ranch." He is a resident ofNueces County,

Texas.

          11.       Plaintiff Oscar Garcia, the son of Maria Garcia, is an heir and descendant of Casimiro

Garcia Ramos who died in 1934, inheriting an interest in southern Brooks County lands commonly

known as "Rancho Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          12.       PlaintiffRoel Garcia is an heir and descendant of Casimiro Garcia Ramos who died

P2057/S14851RLLlMB             \If\S/08/\ef
Plaintiffs' Third Amended Original Petition                                                    Page - 3 of 65-

                                                2053
in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          13.        Plaintiff Albeza Schlicht is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Brooks County, Texas.

          14.        Plaintiff Adrian Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Starr County, Texas.

          15.        Plaintiff Tomasita C. Ramos is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." She is a resident of Nueces County, Texas.

          16.        Plaintiff Alejo Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934 inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Cook County, Illinois.

          17.        Plaintiff Alex Garcia, Jr., is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of DuPage County, Illinois.

          18.        PlaintiffOmer G. Ramos is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of San Patricio County, Texas.

          19.        Plaintiff Reynaldo G. Ramos is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." He is a resident ofNueces County, Texas.

          20.        Plaintiff Hector Garcia, the son of Tomasita Ramos, is an heir and descendant of

P2057/S148S/RLLlMB              II 118/08/1ef
Plaintiffs' Third Amended Original Petition                                                  Page - 4 of 65-

                                                2054
Casimiro Garcia Ramos who died in 1934, inheriting an interest in southern Brooks County lands

commonly known as "Rancho Nuevo" and "Salado Ranch." He is a resident of Nueces County,

Texas.

          21.        Plaintiff Sylvia Garcia Valdez is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." She is a resident ofNueces County, Texas.

          22.        Plaintiff Sylvia Garcia Cantu is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." She is a resident ofNueces County, Texas.

          23.        Plaintiff Cathy Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident ofNueces County, Texas.

          24.        Plaintiff Cynthia Garcia is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Travis County, Texas.

          25.        Plaintiff Jessica Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident ofNueces County, Texas.

          26.        Plaintiff Brenda Garcia is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident ofNueces County, Texas.

          27.        Plaintiff Rita L. Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Lee County, Florida.

P2057/S1485/RLLIMB              11/18/08/1ef
Plaintiffs' Third Amended Original Petition                                                   Page - 5 of 65-

                                                 2055
          28.        Plaintiff Alarico Garcia is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Nueces County, Texas.

          29.        Plaintiff Israel Gonzales is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          30.        Plaintifflsuaro Garcia is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Harris County, Texas.

          31.        Plaintiff Ana Celia Gonzalez Garcia is an heir and descendant of Casimiro Garcia

Ramos who died in 1934, inheriting an interest in southern Brooks County lands commonly known

as "Rancho Nuevo" and "Salado Ranch." She is a resident ofNueces County, Texas.

          32.        Plaintiff Anabel H. Rivas is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Travis County, Texas.

           33.       Plaintiff Maria G. Hinojosa is an heir and descendant of Casimir0 Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Jim Wells County, Texas.

          34.        Plaintiff Rene Alvarado, Sr. is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

          35.        Plaintiff Rene Alvarado, Jr. is an heir and descendant of Casimir0 Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." He is a resident of Brooks County, Texas.

P2057/S1485IRLLlMB              I I I 18/08/1ef
PlalntijJ's' Third Amended Original Petition                                                 Page - 6 of 65-

                                                  2056
          36.       Plaintiff Eusebio Martinez, Jr. is an heir and descendant of Casimiro Garcia Ramos

who died in 1934, inheriting an interest in southern Brooks County lands commonly known as

"Rancho Nuevo" and "Salado Ranch." He is a resident of Hidalgo County, Texas.

          37.       Plaintiff Oscar Garcia, the son of Cristelia Garcia, is an heir and descendant of

Casimiro Garcia Ramos who died in 1934, inheriting an interest in southern Brooks County lands

commonly known as "Rancho Nuevo" and "Salado Ranch." He is a resident of Brooks County,

Texas.

          38.       Plaintiff Diana Daisy Perez is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Harris County, Texas.

          39.       Plaintiff Viola Garcia is the wife of Oscar Garcia (son of Cristelia Garcia). She is

a resident of Brooks County, Texas.

          40.       Plaintiff Gloria Garcia, the daughter of Cristelia Garcia, is an heir and descendant of

Casimiro Garcia Ramos who died in 1934, inheriting an interest in southern Brooks County lands

commonly known as "Rancho Nuevo" and "Salado Ranch."

          41.       Plaintiff Ludi Martinez is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident ofNueces County, Texas.

           42.      Plaintiff Diana M. Flores is an heir and descendant of Casimiro Garcia Ramos who

died in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Kleberg County, Texas.

          43.       Plaintiff Alicia Lee is an heir and descendant of Casimiro Garcia Ramos who died

in 1934, inheriting an interest in southern Brooks County lands commonly known as "Rancho

Nuevo" and "Salado Ranch." She is a resident of Nueces County, Texas.

P2057tSI485IRLLIMB             IItl8t08tlef
PlaintiffS' Third Amended Original Petition                                                    Page - 7 of 65-

                                                 2057
          44.       Defendant Homer E. Dean, Jr. is a deceased, retired Texas attorney who resided in

Alice, Jim Wells County, Texas. He was served at 900 Lincoln Street, Alice Texas 78332. He

appears in this action through Richard Garza as Independent Executor of the Estate of Homer E.

Dean, Jr., Deceased.

          45.       Defendant B. 1. Shepherd is an active Texas attorney. He resides in Bosque County,

Texas. He has been served at the Office of the District Attorney for the 220th Judicial District,

Bosque County Courthouse, 111 S. Main, Meridian Texas 76665.

          46.       Defendant Dean Partners, Ltd. is a Texas limited partnership with Ruth Dean

Brillhart as its general partner and its principal place of business in Alice, Jim Wells County, Texas.

It has been served by serving Homer E. Dean, Jr., at 900 Lincoln Street, Alice Texas 78332.

                                                      III.

                                                   VENUE

          47.       Plaintiffs incorporate the allegations set forth above as if fully restated.

          48.       Venue in this action is mandatory in Brooks County, Texas. Section 15.011 ofthe

Texas Civil Practices and Remedies Code states: "Actions for recovery of real property or an estate

or interest in real property, for partition of real property, to remove encumbrances from the title to

real property, for recovery of damages to real property, or to quiet title to real property shall be

brought in the county in which all or a part of the property is located." Because this is an action for

recovery ofreal property, to remove encumbrances from title to real property, and to quiet title to

real property, venue is mandatory in this county.

                                                      IV.

                                     SELECTION OF DISCOVERY LEVEL

          49.       Plaintiffs incorporate the allegations set forth above as if fully restated.

          50.       The Plaintiffs seek both monetary and declaratory relief for breaches of fiduciary

P2057/S1485/RLLIMB             11/18/08/Ief
Plaintiffs' Third Amended Original Petition                                                        Page - 8 of 65-

                                                  2058
obligations and other state law causes of action. Plaintiff therefore pleads in accordance with a

discovery control plan under Texas Civil Procedure Rule 190.3 of the Texas Rules of Civil

Procedure (Level III).

          51.        The claims asserted by Plaintiffs are to quiet and remove clouds from their title; and

for slanders of title and trespass to try title for mineral interests taken from them by their attorneys.

These attorneys breached fiduciary duties to Plaintiffs or their ancestors the extent of which is set

forth below.

                                                       v.
                                          SUMMARY OF LEGAL CLAIMS

          52.        Plaintiffs incorporate the allegations set forth above as if fully restated.

          53.        This case involves a group of Brooks County residents alerting this Court to conduct

by Texas lawyers that is unethical and seriously improper. Essentially, two South Texas lawyers,

Homer E. Dean, Jr. ("Dean") and B. 1. Shepherd ("Shepherd"), have defrauded and taken advantage

of a Brooks County family of landowners by taking from them property that they have owned for

over a century and a half. Through their overt acts of overreaching, breaches of trust and violations

of fiduciary obligations, Dean and Shepherd, deeded to themselves -- rather than their clients -- one

half of their clients' mineral interests in two tracts of land in Brooks County. At all times herein,

these two lawyers had a continuous duty to disclose their conflicts of interest and obtain waivers as

required under the applicable ethical code for Texas lawyers. This code prevents lawyers from

entering into the type of business relationship with their clients at issue in this case.

          54.        This case illustrates why attorneys why should not convey their clients' property to

themselves during a legal representation. Lawyers stand in a position of trust with their clients, a

position that creates fiduciary duties because of their unequal position and superior knowledge of

the law and facts at issue.

P2057/S14S5/RLLIMB             ( I1(S/OSlIef
Plaintiffs' Third Amended Original Petition                                                         Page - 9 of 65-

                                                   2059
          55.       Nevertheless, the Plaintiffs in this case are historical residents of this county because

they are the direct descendants of Rafael Garcia Salinas, the original grantee of two tracts of land

from the King of Spain known as "Las Mestenas Y Gonzalena" and "La Mestena." Rafael Garcia

Salinas was also the individual who was re-granted this land after Mexico achieved its independence

from Spain. These tracts of land - now lying in Brooks County -- were then patented by the State

of Texas in 1858 to the descendants of Rafael Garcia Salinas.

          56.        In the modern era, the later descendants of Rafael Garcia Salinas hired Defendants

Dean and Shepherd to represent them in a partition of a portion of these tracts of land. However,

Dean and Shepherd defrauded those descendants and then actively concealed their fraud and

conflicts of interest to allegedly obtain an exorbitant legal fee, one-half of all of Plaintiffs' mineral

rights in the property in addition to collecting $5,500 in attorneys' fees. Defendants Dean and

Shepherd over-reached to such an extent in dealing with their clients that they gave themselves a

substantial, perpetual interest in the very mineral rights over which they represented Plaintiffs as

their lawyers. They continue their breaches of their fiduciary duties to Plaintiffs up to this day by

collecting for themselves exorbitant and unethical fees through Plaintiffs' mineral interests.

                                                       VI.

                                              FACTUAL ALLEGATIONS

          57.        Plaintiffs incorporate the allegations set forth above as if fully restated.

          58.       The legal story that culminates in Plaintiffs filing ofthis petition is both fascinating

and unconscionable. As part of the history of South Texas, the Garcias' legal odyssey retells how

this part of America was settled and how it advanced from a territory of Spain to a part of Mexico,

only to emerge, first as an independent nation and then as an American state in the nineteenth

century. Yet, as the story of one of this area's original Hispanic settlers, the Garcias' history tells

an all too common tale of domination by the landed and professional classes, to the point that over

P2057/S1485/RLLlMB             11/18/08/lef
Plaintiffi' Third Amended Original Petition                                                         Page - 10 of 65-

                                                   2060
the course oftwo centuries, the Garcias were whittled down from being the owners of over sixty six

thousand (66,000) acres to their current lot of being the disputed interest owners of approximately

four thousand acres within that larger domain of property. The Garcias now tell both of these stories

as the factual predicate to their legal claims.

          59.       In the late eighteenth and early nineteenth centuries, while present day Texas was

under Spanish rule, the King of Spain transferred public lands to individuals in this region to solidify

his weakening control over the area. In the part of South Texas now known as Brooks County, three

contiguous 22,142 acre tracts ofland known as "La Mestena," "Las Mestenas" and "La Mestena Y

Gonzalena" were granted to two brothers, named Isidro Garcia Saenz and Rafael Garcia Salinas.

The Las Mestenas and La Mestena Y Gonzalena tracts were granted to Rafael Garcia Salinas and

the Las Mestenas tract was granted to Isidro Garcia Saenz. Therefore, the family of the Saenz

brothers inherited 22, 142 acres of the property, and the family of the Garcia Salinas brother inherited

44,284 acres of the property.

          60.       When Mexico declared its independence from Spain in 1821 and formed a republic

in 1824, these lands reverted to the control of the Mexican government. In 1835, the Republic of

Mexico, State of Tamaulipas, re-granted these tracts of land to the Garcia brothers, Isidro Garcia

Saenz and Rafael Garcia Salinas. In 1858, the sovereign state of Texas reconfirmed ownership of

these tracts by issuing a "patent" to Isidro Garcia Saenz and Rafael Garcia Salinas for their

respective ownership of the two tracts, 22,142 acres for Isidro Garcia Saenz and 44,284 acres for

Rafael Garcia Salinas. Throughout the nineteenth century, the descendants of Rafael Garcia Salinas

occupied and passed down to their heirs the 44,284 acres known as "La Mestena" and "La Mestena

Y Gonzalena."

          61.       One of these descendants -- Rafael Garcia Salinas' grandson -- was a gentleman

named Casimiro Garcia Trevino, Sr. He had two marriages, the first to Francisca Cadena and the

P2057/S1485IRLLlMB             lll18/0Stlef
Plaintiffs' Third Amended Original Petition                                                 Page - II of 65-

                                                2061
second, in 1863, to Tomasa Ramos. It is through this marriage, between Casimiro Garcia Trevino

Sr. and Tomasa Ramos, that the Plaintiffs in this case trace their ownership of the property that is

the subject of this lawsuit, for all of the Plaintiffs in this case are direct descendants of this husband

and wife.

           62.       Of that marriage, seven children were born. They inherited certain tracts of land

within the La Mestena parcel known thereafter as the "Salado Ranch" and certain tracts of land

within the La Mestena Y Gonzalena parcel known thereafter as "Rancho Nuevo." The Salado

Ranch consisted of2,767.5 acres and Ranch Nuevo consisted of 1,107.01 acres.

           63.        In 1923, several descendants of Isidro Garcia Saenz and Rafael Garcia Salinas --

including the children of Casimiro Garcia Trevino, Sr. -- entered into a partition deed with an

interloper, a rancher named W. W. Jones who was not a descendant of the original grantees. In the

partition deed, tracts ofland from all three tracts, La Mestena and La Mestena Y Gonzalena and Las

Mestenas, were partitioned among the descendants, with the "remainder" of the acreage in the three

tracts granted to W. W. Jones. As a result ofthis partition, the children of Casimiro Garcia Trevino,

Sr. - including Jose Garcia Ramos and Casimiro Garcia Ramos, Jr. - received the Rancho Nuevo

and the Salado Ranch properties. The combined acreage of these two properties was 3,874.51 acres.

Ironically, as a result, the recent interloper W.W. Jones claimed ownership to 62,552 acres while

the direct descendants and inheritors of the La Mestena tracts were left with only 3,874.51 acres.

           64.       Four years after this division, in December of 1927, the District Court of Brooks

County issued a partition judgment affecting this property. In Cause Number 321, the Court

declared that the descendants from the second marriage of Casimiro Garcia Trevino Sr. (with

Tomasa Ramos as described above) and the descendants from his first marriage (with Francisca

Cadena) would divide the 3,874.51 acre tracts described in the 1923 partition deed as follows:

                     (1)        the descendants of Jose Garcia Ramos, Casimiro Garcia

P2057/S1485/RLLlMB             II I 18/08/1ef
Plaintiffs' Third Amended Original Petition                                                  Page - 12 of 65-

                                                  2062
                               Ramos, and other descendants of Casimiro Garcia Trevino Sf.
                               (from the second marriage with Tomasa Ramos) received a
                               82/83 rd share or (1) 2,734.55 acres (being a portion of the
                               Salado Ranch designated as "share A-I") from the La
                               Mestena grant, and (2) 1093.83 acres (being a portion of
                               Rancho Nuevo designated as "share B-1") from the Las
                               Mestenas & Gonzalena grant; and

                    (2)       the descendants from the first marriage with Francisca
                              Cadena (namely Eugenio Ramos, Frederico Ramos, and
                              Amparo Ramos) received a 1/83 rd share, or a 32.95 acre tract
                              of land (the northeast corner) from "C-2," the Salado Ranch
                              in the La Mestena grant, and a 13.18 acre tract of land (the
                              northeast corner) from "C-l," the Rancho Nuevo in the Las
                              Mestenas & Gonzalena grant.

          65.       Thus, after the 1927 Judgment of this Court, the descendants of Rafael Garcia

Salinas, the ancestors of the Plaintiffs in this case, owned the surface and mineral rights to two tracts

ofland in southern Brooks County. The first was the Rancho Nuevo tract (with a 13.18 acre square

tract ofland removed from the northeast corner of the ranch), and the second was the Salado Ranch

(with a 32.95 acre square tract of land removed from the northeast corner of that ranch). The

descendants from Casimiro Garcia Trevino Sr.'s first marriage (with Francisco Cadena) inherited

less than the descendants from his second marriage (with Tomasa Ramos) because much of the

property was re-acquired by him in 1897, so that the heirs from that second marriage had a greater

per stirpes claim. The acreage of Ranch Nuevo and Salado Ranch were thereafter jointly owned by

the children of Casimiro Trevino Sf.'S second marriage (including Jose Garcia Ramos and Casimiro

Garcia Ramos).

          66.       Fifty years later, in the mid 1970s, the descendants of Rafael Garcia Salinas who

were occupying these tracts (Rancho Nuevo and Salado Ranch) had split into two main groups.

First, there were the descendants of Casimiro Garcia Ramos (the "Garcias") and, second, there were

the descendants of Jose Garcia Ramos represented by his daughter, Tomasa G. Figueroa (the

"Figueroas"), two branches of the same family tree. The descendants of Casimiro Garcia Ramos

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Plaintiffs' Third Amended Original Petition                                                   Page - I3 of 65-

                                                   2063
- the Plaintiffs in this case - hired Horner E. Dean, Jr. and B. 1. Shepherd, two Alice Texas lawyers,

to have their property partitioned from the property of the other branch of the family, the

descendants of Jose Garcia Ramos.

          67.        In this representation and action for partition, the clients of Horner E. Dean, Jr. and

B. J. Shepherd were the Garcias, the plaintiffs in this case and their direct ancestors. As Dean and

Shepherd listed them, their twelve (12) clients in this representation were:

                     (1)       "Jose A. Gonzalez,'

                     (2)       "his wife, Rafaela Gonzalez,"

                     (3)       "Maria Elena Garcia Garza,"

                     (4)       "Cristelia R. Garcia,"

                     (5)       "Gloria Garcia Garcia,"

                     (6)       "Oscar Garcia,"

                     (7)       "his wife, Viola Garcia,"

                     (8)       "Aurora Garcia Alvarado,"

                     (9)       "Guadalupe Garcia,"

                     (10)      "Maria 1. Garcia,"

                     (11)      "Jesus Garcia" and

                     (12)      "his wife, Tomasa G. Garcia." (sic).

          68.        On the other side of the case were the Figueroas, the living descendants of Jose

Garcia Ramos. They were named by Dean and Shepherd in the Petition for Partition as follows:

                     (1)       "Tomasa G. Figueroa, a widow"

                     (2)       "Max Figueroa, Jr." and

                     (3)       Adriana F. Gutierrez."

          69.        Dean and Shepherd began their representation ofthe Garcias in April ofl975 without

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Plaintiffs' Third Amended Original Petition                                                     Page - 14 of 65-

                                                     2064
a written fee agreement.

          70.        Following a minimum degree of attorney effort, consisting of no more than two

depositions, a title search comprising twelve hours and a short settlement agreement, Dean and

Shepherd appeared before this Court, on December 8, 1975 to announce a settlement of the disputes

between the parties which was detrimental to the Garcias. Despite their requests, Dean and

Shepherd failed to partition the mineral estate for their clients. A true and correct copy of the

Petition for Partition filed by Dean and Shepherd on behalf of the Garcias is attached hereto as

Exhibit "A."

          71.       Following this action, and in violation of the applicable Code of Conduct for

attorneys, Dean and Shepherd required some but not all of the Garcia clients to sign a purported

"Attorney Fee Agreement" that was exorbitant and unethical. In particular, the Agreement not only

compelled the Garcias to pay $5,000 in attorney's fees, but also compelled them to execute a deed

transferring "one half' of all their mineral interest in the property that was the subject of the

litigation initiated by Dean and Shepherd. The Fee Agreement was not signed by two of Dean and

Shepherd's clients, Oscar Garcia and Viola Garcia. Further, it was executed after the substantial

completion of legal services, it failed to permit the Garcias to obtain independent legal advice, and

it lacked any disclosure of their conflicts of interest or waivers of those conflicts. The Fee

Agreement stated as follows:

          "It is hereby agreed by and between Homer E. Dean, Jr., and B. J. Shepherd, as
          attorneys, and [the clients] that the following will be the total attorneys' fees to be
          paid to said attorneys for their services in cause No. 2423 in the District Court of
          Brooks County, Texas, styled Jose A. Gonzales et al. vs. Tomasa G. Figueroa et al.:

          Total attorneys' fees $5,000.00 to be paid in cash and clients furthermore agree to
          execute to said attorneys a mineral deed deeding to said attorneys one-half (112)
          of the mineral interest acquired by each of said plaintiffs in a partition of the
          property in the above entitled and numbered cause." (emphasis added)

A true and correct copy of this "Fee Agreement" between the Garcias and Defendants Dean and

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                                               2065
Shepherd is attached hereto as Exhibit "B." As a result of this wrongful conduct, Dean and

Shepherd purportedly transferred to themselves through a "perpetual mineral deed," a substantial

portion of the very property interest that their clients sought to obtain by initially hiring them as

attorneys, over and above the $5,000 already paid for that representation. This document is attached·

hereto as Exhibit "C."

          72.       Although the document filed by Dean and Shepherd in the deed records is a form

deed filled out with type on the first page, including a reference to "$2,000 cash paid in hand" as the

consideration for the conveyance, the copy provided to the Garcias by their attorneys was blank on

the first page, with no type added, when it was signed by them.

          73.       By the value of currency in 1975, the $5,000 paid to Dean and Shepherd was, in fact,

more than adequate compensation for the legal services rendered by them.

          74.       This purported acquisition of an interest in the real property that was the subject of

the Garcia litigation violated one of the most basic Disciplinary Rules in force for attorneys at the

time. Disciplinary Rule 5-103 (in effect in 1975) stated as follows:

          "A voiding Acquisition of Interest in Litigation.

                    (A) -      A lawyer shall not acquire a proprietary interest in the cause
                               of action or subject matter of litigation he is conducting for a
                               client, except that he may:
                               (1) - Acquire a lien granted by law to secure his fee or expenses.
                               (2) - Contract with a client for a reasonable contingent fee
                                        in a civil case."

          75.       To make matters worse, even if this were a permissible "business relation with a

client" under Disciplinary Rule 5-104, in force at the time, that rule required that "a lawyer shall not

enter into a business transaction with a client if they have differing interests therein and ifthe client

expects the lawyer to exercise his professional judgment therein for the protection of the client,

unless the client has consented after full disclosure." Dean and Shepherd entered into the agreement


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Plaintiffs' Third Amended Original Petition                                                   Page - 16 of 65-

                                                   2066
they forced upon some of their clients to execute a mineral deed in their favor without "making full

disclosure" of their conflicts of interests or the material risks associated with their simultaneous

representation and acquisition of mineral interests.

          76.        These conflicts of interest were real and substantial and actually impaired the

interests of the Garcias in the underlying litigation. For example, although the mineral interests

should have been partitioned along with the surface rights, Dean and Shepherd chose to leave the

mineral interests undivided and thereby shared, as attorney grantees, in mineral revenues from both

the Rancho Nuevo and Salado properties. Because of their conflicting interest in receiving the

greatest possible future revenue from their "perpetual mineral deed," Dean and Shepherd failed to

partition the mineral interests as the clients had asked them to do and as their interests required.

Thus, Dean and Shepherd not only impermissibly granted to themselves their clients' property,

property that was the subject of the representation, but - to make matters worse - they failed to

execute the objective of their clients in order to increase their own revenues, at their clients'

substantial disadvantage.

          77.        It would be unfortunate enough if this story of attorney impropriety ended with Dean

and Shepherd walking away with half of their clients' mineral interest in addition to their monetary

fee - but the story continued. Not all of the clients who went to Dean's office signed the un-

notarized "fee agreement" he instructed them to sign. Oscar Garcia and his wife Viola Garcia

refused to sign the document. Dean and Shepherd left the signatures lines for Oscar Garcia and

Viola Garcia blank. Despite the fact that these clients never agreed to pay Dean and Shepherd with

a mineral deed, Dean and Shepherd have continued to collect mineral interests from those clients

ever since this time in the mid-1970s. This is a continuing tort and a continuing violation of their

fiduciary duties to their clients, the Plaintiffs in this action.

          78.        On December 16, 1975, Dean and Shepherd filed with this Court, a Partition Deed

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Plaintijft' Third Amended Original Petition                                                  Page - 17 of 65-

                                                 2067
reflecting a division of the surface estates of the Garcias and Figueroas, but keeping the mineral

interests under the Rancho Nuevo and Salado Ranch "undivided." Under this deed, structured by

Dean and Shepherd rather than the Garcias, the parties purportedly partitioned their surface rights

so that the Garcias were granted all rights to the surface estate in the Rancho Nuevo parcel (referred

to therein as "Share B-1") and the Figueroas were granted all rights to the surface estate in the

Salado parcel (referred to therein as "Share A-I "). Also, although the Garcias had requested a full

"partition in kind" of the properties, and although the Judgment stated that it was a "partition in

kind," Dean and Shepherd structured the partition so that all oil, gas and other minerals in and under

all of the property remained undivided with the ownership being vested one-third in the Garcias and

two-thirds in the Figueroas. This deed did not reflect or disclose, in any way, the one-half mineral

interest being withheld by Dean and Shepherd.

          79.       On December 19, 1975, Dean and Shepherd delivered to this Court and Judge C. W.

Laughlin, District Judge, Brooks County, signed a Judgment reflecting the Partition Deed filed by

Dean and Shepherd. Under this Judgment, the Court partitioned the surface rights so that the

Garcias were granted all rights to the surface estate in the 1093.3 acre Rancho Nuevo parcel

(referred to therein as "Share B-1") and the Figueroas were granted all rights to the surface estate

in the 2734.55 acre Salado parcel (referred to therein as "Share A-I "). Also, although the Garcias

had requested a full "partition in kind" of the properties, and although the Judgment stated that it

was a "partition in kind," Dean and Shepherd proffered to the Court the Judgment, signed by the

Court, which stated that "[a]l1 oil, gas and other mineral in and under all of the property ... shall

remain undivided with the ownership being vested one-third in the Plaintiffs [the Garcias] ... and

two-thirds in Defendant, Tomasa G. Figueroa." The Judgment reserved all executive rights to

execute oil, gas and mineral leases in the hands ofthe surface estate owners, thus leaving the Garcias

with the executive rights to the 1093.83 acre Rancho Nuevo parcel and the Figueroas with the

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Plaintiffs' Third Amended Original Petition                                               Page - 18 of 65-

                                               2068
executive rights to the 2734.55 acre Salado Ranch parcel. The attorney/client relationship between

the Garcias and their attorneys Dean and Shepherd continued through the entry ofthis judgment and

continued thereafter because Dean and Shepherd drafted legal documents, made accountings of

expenses and performed legal work for the Garcias thereafter.

          80.        The resulting Judgment thus divided the surface estate "in kind," one-third for the

Garcias and two-thirds for the Figueroas by granting the Garcias one-third ofthe land (the 1093.83

acre Rancho Nuevo parcel) and granting the Figueroas two-thirds of the land (the 2734.55 acre

Salado Nuevo parcel), but failed to divide the mineral estate "in kind," keeping it "undivided" and

allocating lease revenues one-third - two thirds between the Plaintiffs and Defendants.

          81.        This failure to divide the mineral estates at issue in the partition action benefitted

Dean and Shepherd because, by their failure to partition the mineral interests and compelling their

clients to execute a "one-half' mineral deed in each of the Garcia clients' mineral interests, they

granted to themselves an interest in oil, gas and mineral revenues from both the Rancho Nuevo

property and the Salado property. Had they divided the mineral estate so that (parallel to the surface

estate partition) the Garcias owned the mineral rights under the Rancho Nuevo parcel and the

Figueroas owned the mineral rights under the Salado parcel, then their illegal and improper

"perpetual mineral deed" from the Garcias would only grant them revenue from one of the parcels,

rather than both of them. Rather than fulfilling the request of their clients and protecting their

interests in the mineral estate under Rancho Nuevo, Dean and Shepherd preferred their own

improper financial interest by keeping the mineral interest w1divided in the Partition Judgment and

impairing their clients' rights and interests. These were acts of self-dealing, and violations by Dean

and Shepherd of duties of disclosure and duties not to act toward their clients based upon conflicts

of interests.

          82.        Defendants misrepresented to Plaintiffs that the execution of legal paperwork

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PlaintijJs' Third Amended Original Petition                                                    Page - 19 of 65-

                                                  2069
presented to them on December 16, 1975 and December 19, 1975 -- including the purported

perpetual mineral deed -- was necessary to complete the partition of property with the Figueroas and

had that legal effect.

          83.       Of equal importance and illegality, the Partition Judgment between the Garciasfailed

to inform the Court or reflect in any way the wrongful grant of mineral interests to themselves just

three days earlier. Indeed, the Judgment disavowed the validity of any other conveyance pursuant

to the partition action, stating "[a]B other relief requested by any party hereto not expressly granted

herein is denied." The Judgment was signed by Homer E. Dean, Jr., B. 1. Shepherd, and Judge C. W.

Laughlin. Dean and Shepherd failed to advise Judge Laughlin of their conflict of interest, or their

attempt to themselves "one-half' of all the mineral interests of their clients just three days before.

The failure of Dean and Shepherd to advise the Court of their conflict and insider is legally

outrageous. A true and correct copy of this Judgment is attached hereto as Exhibit "C."

          84.       Further, the true legal nature of the transaction was further fraudulently concealed

by Dean and Shepherd in their correspondence with their clients. Dean and Shepherd represented

the Garcias in partitioning the Rancho Nuevo property granted to them into six 222.3 acre tracts for

each ofthe individual Garcia families represented by Dean and Shepherd. This was accomplished

by having them execute, on December 16, 1975 and December 19, 1975, a Partition Deed to be filed

with the county deed records. This deed made no mention that the mineral interests of the Garcias

were subject to any mineral estate controlled by Dean or Shepherd. The Garcias signed the partition

deed and those signatures were notarized by Peggy Davidson, a legal secretary in Dean's office on

December 16 and December 19 of 1975, but the deed was not filed in December. Rather, in late

December of 1975 or early January of 1976, Dean andlor Shepherd instructed Peggy Davidson to

place the already signed deed into the typewriter and insert a new paragraph, "6a" into the document

at the bottom of page 7 and the top of page 8. This new, inserted paragraph, never signed or

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PlaintijJS' Third Amended Original Petition                                                 Page - 20 of 65-

                                                2070
assented to by the Garcias, stated as follows:

          6a.        This partition is subject to a mineral deed from the undersigned to Homer E.
                     Dean, Jr. and B.J. Shepherd dated December 16,1975, of record in Vol. 93,
                     Pages 649-652, Deed Records of Brooks County, Texas, which is not
                     affected hereby.

          85.        In a letter dated January 6, 1976, Dean misrepresented to the Garcias the reason that

this was inserted and failed to disclose that it was improperly and fraudulently inserted by Dean

solely for his and Shepherd's interests. The letter falsely stated that the paragraph was inserted to

make the partition valid, when if fact it had no legal effect on the validity of the partition and did

have a legal effect on the mineral deed of Dean and Shepherd. The letter by Dean to "the heirs of

Casimiro Ramos" read:

          Enclosed is a copy of the partition deed. I overlooked the mineral deed you made
          to Mr. Shepherd and me and have added a reference to it so that this partition will
          be valid. (emphasis added)

This constituted a materially false statement and a non-disclosure by Dean and Shepherd that had

the effect of making their improper conduct undiscoverable, because the clients were told that the

mineral deed to Dean and Shepherd was necessary "so that [the] partition will be valid."

          86.        The way in which Dean and Shepherd failed to disclose the value of the mineral

estate they wrongfully obtained from their clients is also legally outrageous. Dean and Shepherd

received, in connection with their representation of the Garcias in 1975, an expert report setting forth

the value of the Rancho Nuevo and Salado Ranch mineral estates at issue in the Garcia-Figueroa

action. This expert report determined the value of the mineral estates to be $250 per acre. Because

the Garcias received one third of the mineral estate underlying those ranches, with a combined

acreage of3827.85, had a value -- according to the expert report in the sole possession of Dean and

Shepherd -- of at least $159,493. One half of that estate, the property Dean and Shepherd were

transferring to themselves, had a value -- according to the expert report -- of at least $79,746.


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PLaintiffs' Tllird Amended Original Petition                                                  Page - 21 of 65-


                                                  2071
Making matters worse, Dean and Shepherd failed to disclose this report or the values set forth in it,

to their client's, the Garcias. Even if the value of the mineral estate conveyed to Shepherd and Dean

was only 50% of the total value of the property, the appraisal in Dean and Shepherd's possession

showed the value of the property they sought to have conveyed to themselves was approximately

$40,000.

          87.        Rather than reciting the expert report value in the mineral deed they drafted, Dean

and Shepherd later inserted a consideration of "$2,000 cash in hand paid" into the first page ofthe

mineral deed purporting to convey the mineral interest to them.          In fact, this representation was

false because Dean and Shepherd never "paid $2000 cash" or any other consideration to the Garcias

for the conveyance of their mineral interests.

          88.        After thus fraudulently coercing their clients to purportedly assign one-half of all

their long-held mineral interests in an improper conveyance in violation of the Code of Professional

Responsibility and applicable state law, Dean and Shepherd wrote to their clients, expressing

happiness with the result. In a letter dated January 21, 1976, Dean wrote that after deducting the

"agreed cash attorneys fee of $5,500.00" for himself and Shepherd, and after deducting their

expenses, he would be distributing to them, out of $5274.31 in rent, only "1/6 of ... $347.77."

          89.        Although the mineral deed that Dean and Shepherd had their clients sign to convey

one half of their mineral estate to them, purportedly was executed for $2,000, the accounting does

not reflect any such payment or deduction from fees to pay for the mineral estate. Also, although

the purportedly "agreed" payment of cash to Dean and Shepherd was $5,000, according to the

December 16, 1975 fee agreement, the accounting referred to an "agreed attorneys fee of

$5,5000.00." Just a month after Dean's failure to partition the mineral estate, and his conversion of

their mineral interests, deception, fraud and violation of fiduciary obligations, he ended his letter

with the statement "I believe we have gotten you an effective partition and possession of your land

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Plaintijft' Third Amended Original Petition                                                  Page - 22 of 65-

                                                  2072
and I hope you are as happy with the outcome as we are." Clearly, Dean and Shepherd were happy

with the outcome: they continued to collect revenues from their client's property for the next three

decades. A true and correct copy of this letter is attached as Exhibit "D."

          90.        In fact, although the mineral deed recites that it was conveyed by Plaintiffs for

"$2000 cash in hand paid," neither Dean nor Shepherd ever paid Plaintiffs any consideration for the

conveyance. No Plaintiffs received any portion or $2000 or any other consideration for the

purported conveyance, either as cash paid or as an offset against fees.

          91.        Thereafter, without disclosure to the Garcias, Dean began transferring his wrongfully

acquired mineral interests to family members. For instance, in 1999, he transferred his alleged

"1/12th interest" in the mineral interests underlying Rancho Nuevo and Salado Ranch to Dean

Partners, Ltd., an Alice-based limited partnership in which he is a partner. A true and correct copy

of this deed is attached hereto as Exhibit "F." Because he had calculated the Garcias' originally had

a one third interest in the mineral estate, he calculated that he had taken a one twelfth interest,

Shepherd had a one twelfth interest, and the entire Garcia family had the other half, a one sixth

interest.

          92.        From 1976 through the present, Dean and Shepherd continued to breach their

fiduciary obligations to their clients, the Plaintiffs in this action by:

                     (1)       continually collecting royalties on the mineral interests fraudulently
                               and improperly transferred to themselves;

                     (2)       continually withholding from Plaintiffs an accurate accounting of
                               funds received from royalty revenues from Plaintiffs' property; and

                     (3)       continuing to assert an illegal and fraudulently obtained interest to
                               third parties, including Plaintiffs, mineral lessees, oil and gas lessees
                               and the Court; and

                     (4)       asserting to third parties and potential lessees that they, Dean and
                               Shepherd, had the executive right to lease the mineral estates of
                               Rancho Nuevo and Salado Ranch, despite the fact that the Partition

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Plaintifft' Third Amended Original Petition                                                         Page - 23 of 65-

                                                     2073
                               Judgment stated that only surface right holders had such executive
                               rights, and failing to disclose these assertions and communications
                               against their clients' interests to their clients;

                    (5)        continuing in their failure to disclose and fraudulent concealment of
                               the value ofthe mineral interests they purportedly obtained from their
                               clients; and

                    (6)        failing to disclose to their clients their non-disclosures, conflicts of
                               interest, and fraudulent conduct, as set forth above, to their clients.

          93.       Dean and Shepherd cannot claim that they were ignorant of the legal obligations

under which they were required to interact with clients as Texas lawyers. The entirety of Canon 5

of the Texas Model Code of Professional Responsibility was violated by Dean and Shepherd in their

acquisition oftheir clients' property. As Ethical Consideration 5-2 plainly states: "[a]fter accepting

employment, a lawyer should refrain from acquiring a property right or assuming a position that

would tend to make his judgment less protective of the interests of his clients." This rule was further

expressed in the following Disciplinary Rules, each of which were in force for lawyers practicing

in Texas in 1975:

                    (l)        Disciplinary Rule 5-103 - Avoiding Acquisition ofInterest in Litigation.

                               (A) -     A lawyer shall not acquire a proprietary interest in the
                                         cause of action or subject matter of litigation he is
                                         conducting for a client, except that he may:
                                         (1) - Acquire a lien granted by law to secure his fee or
                                                expenses.
                                         (2) - Contract with a client for a reasonable contingent fee
                                                in a civil case.

                    (2)        Disciplinary Rule 5-104 - Limiting Business Relations with a Client

                               (A) -     A lawyer shall not enter into a business transaction
                                         with a client if they have differing interests therein
                                         and if the client expects the lawyer to exercise his
                                         professional j udgment therein for the protection ofthe
                                         client, unless the client has consented after full
                                         disclosure.

          94.       By compelling Plaintiffs, their clients, to enter into a conveyance to them of one-half

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Plaintiffs' Third Amended Original Petition                                                        Page - 24 of 65-

                                                      2074
oftheir mineral interest -- at the same time that they were purportedly acting on their clients' behalf

with respect to those mineral interests - Dean and Shepherd violated their duty of undivided

allegiance and fidelity to Plaintiffs.

          95.        Further, by failing to explain their conflicts of interest or the value of the subject

property to Plaintiffs prior to allegedly entering into a conveyance from them of their mineral

interests, Dean and Shepherd violated their fiduciary obligations and duties of undivided allegiance,

full disclosure and fidelity to Plaintiffs.

          96.        Further, by failing to provide Plaintiffs with an opportunity to seek independent legal

counsel and advice in connection with their grant of mineral interests to Dean and Shepherd violated

their fiduciary obligations and duties of undivided allegiance, full disclosure and fidelity to

Plaintiffs.

          97.        Further, by failing to provide Plaintiffs with an opportunity to seek independent legal

counsel and advice in connection with their grant of mineral interests to Dean and Shepherd violated

their fiduciary obligations and duties of undivided allegiance, full disclosure and fidelity to

Plaintiffs.

          98.        Further, by failing to advise Plaintiffs of the material risks and impropriety of

granting to them a property interest during the representation, Dean and Shepherd violated their

fiduciary obligations and duties of undivided allegiance, full disclosure and fidelity to Plaintiffs.

          99.        Further, because Dean and Shepherd had a current appraisal report in their possession

showing the value of the property they sought to have conveyed from their clients to themselves,

failing to disclose these values or the report was a breach of their fiduciary obligations of undivided

allegiance, full disclosure and fidelity to Plaintiffs.

          100.       Further, because the purported grant of "one-half' of Plaintiffs mineral interests to

Dean and Shepherd was unreasonable and unfair, conveying such interests to themselves was a

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Plaintiffs' Third Amended Original Petition                                                     Page - 25 of 65-


                                                   2075
"void" transaction and was a breach of their fiduciary obligations of undivided allegiance, full

disclosure and fidelity to Plaintiffs.

           101.       Further, by providing to Plaintiffs a Perpetual Mineral Deed that was blank and filling

the document in with information, such as a consideration amount, after it was executed by their

clients, Dean and Shepherd violated their fiduciary obligations of honesty, undivided allegiance, full

disclosure and fidelity to Plaintiffs.

           102.       Further, by failing to advise Plaintiffs that the purported conveyance by them was

"void" under Texas law, Dean and Shepherd violated their fiduciary obligations and duties of

undivided allegiance, full disclosure and fidelity to Plaintiffs.

           103.       Further, by failing to advise Plaintiffs that the purported conveyance by them was for

an amount far below the value of property conveyed, Dean and Shepherd violated their fiduciary

obligations and duties of undivided allegiance, full disclosure and fidelity to Plaintiffs.

           104.       Further, by failing to advise Plaintiffs that they were representing to others that they

had the legal right to lease the Rancho Nuevo and Salado ranch mineral estate when the Judgment

they had drafted and entered stated the opposite, Dean and Shepherd violated their fiduciary

obligations and duties of undivided allegiance, full disclosure and fidelity to Plaintiffs.

           105.       Further, by failing to advise Plaintiffs that the purported conveyance by them was

violated Texas Disciplinary Rules and Texas law, Dean and Shepherd violated their fiduciary

obligations and duties of undivided allegiance, full disclosure and fidelity to Plaintiffs.

           106.       Further, by falsely advising Plaintiffs that the alleged Partition Deed, inserting their

own interests in contravention of the Court's Partition Judgment was necessary "so that this partition

will be valid," Dean and Shepherd violated their fiduciary obligations and duties of truthfulness, full

disclosure and fidelity to Plaintiffs.

           107.       Further, by collecting oil and gas royalties from 1975 to the present on Plaintiffs'

P2057/S14S5IRLLlMB             II I IS/OS/lef
Plaintiffs' Third Amended Original Petition                                                       Page - 26 of 65-

                                                    2076
mineral interests, Dean and Shepherd violated their fiduciary obligations and duties of truthfulness,

full disclosure and fidelity to Plaintiffs.

          108.       Further, by asserting ownership of Plaintiffs' mineral interests, re-conveying those

interests to family members, and refusing to return those property interests to Plaintiffs from 1975

to the present, Dean and Shepherd violated their fiduciary obligations and duties of full disclosure

and fidelity to Plaintiffs. As an instance of these further re-conveyances, on July 26, 1999, Homer

Dean conveyed, through a "Perpetual Mineral Deed," all of his interest in the Rancho Nuevo and

Salado Ranch properties to another Defendant in this action, Dean Partners, Ltd., a Texas limited

partnership. A true and correct copy of that mineral deed is attached as Exhibit "G."

          109.       Further, by fraudulently concealing their own fraudulent actions and breaches of

fiduciary duty from 1975 to the present and by breaching those duties by negotiating and purporting

to employ executive rights to the subject property, Dean and Shepherd violated their fiduciary

obligations and duties of truthfulness, full disclosure and fidelity to Plaintiffs.

          110.       In choosing not pursue a partition the mineral estate, as requested, so as to further

their own interests to the detriment of Plaintiffs, and in thereby sharing in mineral revenues from

both the Rancho Nuevo and Salado properties due to a conflict of interest in receiving and the

creation of a "perpetual mineral deed," Dean and Shepherd failed to partition the mineral interests

as the clients had asked them to do and as their interests required. Thus, Dean and Shepherd not

only impermissibly granted to themselves their clients' property, property that was the subject of

the representation; they failed to execute the objective of their clients in order to increase their own

revenues, at their clients' substantial disadvantage. This was a violation of the obligations of Dean

and Shepherd to Plaintiffs of undivided loyalty, truthfulness, full disclosure and fidelity.

          Ill.      Plaintiffs bring this action to redress the substantial wrong done to them by their

attorneys and their family members, through fraud, breach of fiduciary obligations, and slander of

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Plaintiffs' Third Amended Original Petition                                                   Page - 27 of 65-

                                                 2077
title by quieting title to the subject property. Plaintiffs seek actual damages, punitive damages, an

order quieting title, an accounting, and the imposition of a constructive trust.

                                                        VII.

                                                 LEGAL CLAIMS

A.        Application of the Discovery Rule

          112.      Plaintiffs incorporate the allegations set forth above as if fully restated.

          113.      The "discovery rule" applies to defer the accrual of all causes of action set forth in

this petition.

          114.      The injuries of Plaintiff are "inherently undiscoverable." Dean and Shepherd were

acting as Plaintiffs' attorneys during all relevant times set forth in this petition, including the entirety

of December 1975, the entirety of January 1976 and thereafter, and owed Plaintiffs fiduciary duties

of full disclosure, fidelity, undivided loyalty, perfect candor, openness, and honesty without any

concealment or deception. Defendants also owed to Plaintiffs, at all times set forth in this petition,

the duty to be strictly honest about fee arrangements and to refrain from self-dealing, and the duty

to inform Plaintiffs of all matters material to their representation. Because Defendants never

disclosed to Plaintiffs their own violations of fiduciary duties, self-dealing, the value ofthe property

allegedly conveyed, and the other material matters set forth in the causes of action below,

Defendants violated their duties to disclose such matters to Plaintiffs. Under Texas law, these

violations of fiduciary duty are "inherently undiscoverable." S. V v. R. V, 933 S.W.2d 1,8 (Tex.

1996); Computer Assocs. Int'l v. Altai, Inc., 918 S.W.2d 453,456 (Tex. 1994). As the Supreme

Court has held, "the discovery rule operates to protect the client even ... after the attorney-client

relationship ceases to exist." Willis v. Maverick, 768 S.W.2d 642, 645 (Tex. 1988).

          115.      Plaintiffs       exercised   reasonable    diligence   but,   based   upon     Defendant's

misrepresentations and failures to disclose, did not discover Defendants' breaches of fiduciary duty

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Plaintiffs' Third Amended Original Petition                                                        Page - 28 of 65-

                                                     2078
and other wrongs against them in November 2007. Because Plaintiffs depended upon Plaintiffs'

legal advise and honesty and because the wrong related to alleged ownership of non-producing

mineral interests, it was difficult for Plaintiffs to discover Defendants' breach of fiduciary duties and

other wrongs.

          116.      The injuries suffered by Plaintiffs, set forth      III   this petition, are "objectively

verifiable. "

B.        Breach of the Duty to Disclose and Fraudulent Concealment

          117.      Plaintiffs incorporate the allegations set forth above as if fully restated.

          118.      Defendants "fraudulently concealed" their actionable wrongdoing from Plaintiffs,

thus deferring the accrual of the causes of action set forth in this petition until their discovery in

November of 2007. As set forth herein, Defendants engaged in a course of conduct to deceitfully

conceal their wrongdoing from Plaintiffs.            Defendants had actual knowledge of the wrongs

committed against Plaintiffs set forth herein; Defendants concealed the wrongs by making

misrepresentations set forth herein to Plaintiffs and by remaining silent when they had a duty to

speak; Defendants had a fixed purpose to conceal the wrong, namely the obtaining and retention of

Plaintiffs' mineral interests, and Plaintiffs reasonably relied upon Defendants' misrepresentations

and silence. Under Texas law, these facts support application ofthe fraudulent concealment doctrine

deferring the accrual of the causes of action set forth herein. Shah v. Moss, 67 S. W.3d 836, 841

(Tex. 2001); Advent Trust Co. v. Hyder, 12 S.W.3d 534, 541 (Tex.App.--San Antonio 1999, pet.

denied).

          119.      Further, as Plaintiffs' fiduciaries, Dean and Shepherd were "obligated to render a full

and fair disclosure of facts material to the client's representation" and a "breach of the duty to

disclose is tantamount to concealment." Willis v. Maverick, 768 S.W.2d 642, 645 (Tex. 1988).

Defendants' defrauded Plaintiffs by altering the partition deed signed by Plaintiffs on December 16

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Plaintifft' Third Amended Original Petition                                                        Page - 29 of 65-

                                                 2079
and December 19, 1975 to add a self-serving reference to Defendants' void mineral deed and

misrepresenting to Plaintiffs that this unsigned and unauthorized insertion was made "so that this

partition will be valid." Defendants also defrauded Plaintiffs by failing to disclose to them the true

value of the mineral estate as disclosed to Defendant by an expert during the representation.

Defendants also defrauded Plaintiffs by failing to disclose each of the matters set forth below in the

breach of fiduciary duties section of this petition. Plaintiffs reasonably relied upon Defendants

representations that executing documents, including the mineral deed, were necessary to achieve the

partition of their property. Because Defendants were Plaintiffs' lawyers and because Plaintiffs were

not sophisticated in the matters for which Defendants were representing them, Plaintiffs relied upon

Defendants' duties to disclose and non-disclosures, and Plaintiffs did not disbelieve Defendants'

misrepresentations or question Defendants' silence.

C.        Suit to Quiet Title

          120.       Plaintiffs incorporate the allegations set forth above as if fully restated.

          121.       Defendants' actions in procuring a proprietary interest in the subject matter of their

representation of Plaintiffs and in conducting a business transaction with their clients without first

making adequate disclosures and receiving waivers of conflicts of interest, violates DR 5-103 and

DR 5-104 of the Texas Model Code of Professional Responsibility in force in Texas in 1975. These

rules were the public policy of the State of Texas.

          122.       Accordingly, the mineral deed acquired by Dean and Shepherd is "void" ab initio and

unenforceable.

          123.       Further, Defendants' action in procuring the mineral deed were based upon serious

failures to disclose matters to Plaintiffs, including conflicts of interest and the value of the property

received.

          124.       Therefore, the mineral deed acquired by Dean and Shepherd is "void" ab initio and

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Plaintiffs' Third Amended Original Petition                                                         Page - 30 of 65-

                                                   2080
unenforceable.

          125.      Plaintiffs are proper parties to this suit to quiet title.   Plaintifrs have a legal and

equitable interest in the Ranch Nuevo and Salado Ranch properties described above, the metes and

bounds of which are set forth in the Judgment of this Court attached hereto and incorporated herein

as Exhibit "C."

          126.      Defendants have made claims to Plaintiffs' property through their wrongful assertions

of ownership interests in the mineral estates for the Rancho Nuevo and Salado Ranch properties

described in Exhibit "c."

          127.      These claims by Defendants were procured through failure of consent, use of fraud,

breaches of fiduciary obligations, unconscionable conduct, conflicts of interest and inequitable

actions. Such claims interfere with Plaintiffs' title to the subject property and subject mineral

estates. Because they were wrongfully obtained, in violation of fiduciary obligations and as a result

of fraud and as a result of serious non-disclosures and conflicts of interests, the property interests

asserted by Defendants to the subject property are, in fact, "void" and invalid.

          128.      Further, because they were entered into as a result of over-reaching, a disparity of

knowledge and bargaining position, and lack of understanding of Plaintiffs (as well as resulting from

violations of fiduciary obligations, fraud and serious non-disclosures and conflicts of interests), the

alleged Fee Agreement contract and alleged "Perpetual Mineral Deed" are "unconscionable" as a

matter of law, and thus void ab initio and of no legal effect.

          129.      The object of this claim is to quiet title is to obtain a judicial decree declaring the

Defendants' specific claim to the properties set forth above are invalid or unenforceable. By issuing

an order quieting title to the property, Plaintiffrequests that this Court remove the aforementioned

cloud cast by the Defendant's claims and contentions.

          130.      Accordingly, Plaintiffs request from this Court, the following declarations:

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Plaintiffs' Third Amended Original Petition                                                      Page - 31 of 65-

                                                  2081
                     (1)       That the "Fee Agreement" purportedly entered into between
                               Defendants Homer E. Dean, Jr., and B.J. Shepherd and
                               Plaintiffs is an "unconscionable contract," void ab initio and
                               of no legal effect, and that Defendants have no legal or
                               equitable claim or title to the Rancho Nuevo or Salado Ranch
                               properties in Brooks County described in the metes and
                               bounds description of the Judgment of this Court in Cause
                               No. 2323, filed at Volume 9, pages 58 through 63 as "Share
                               A-I" and Share B-1" therein.

                     (2)       That the "Perpetual Mineral Deed" purportedly entered into
                               between Defendants Homer E. Dean, Jr., and B.J. Shepherd
                               and Plaintiffs is an "unconscionable contract," void ab initio
                               and of no legal effect, and that Defendants have no legal or
                               equitable claim or title to the Rancho Nuevo or Salado Ranch
                               properties in Brooks County described in the metes and
                               bounds description of the Judgment of this Court in Cause
                               No. 2323, filed at Volume 9, pages 58 through 63 as "Share
                               A-I" and Share B-1" therein.

                     (3)       That the purported "Partition Deed" entered into between
                               Defendants Homer E. Dean, Jr., and B.J. Shepherd and
                               purportedly filed with this Court in January of 1976 is
                               "unconscionable," void ab initio and of no legal effect, and
                               that Defendants have no legal or equitable claim or title to the
                               Rancho Nuevo or Salado Ranch properties in Brooks County
                               described in the metes and bounds description of the
                               Judgment ofthis Court in Cause No. 2323, filed at Volume 9,
                               pages 58 through 63 as "Share A-I" and Share B-1" therein.

                     (4)       That, based upon the facts and circumstances under which
                               Defendants Homer E. Dean, Jr., Dean Partners, Ltd. and B.1.
                               Shepherd allegedly acquired their interests in the property,
                               these Defendants have no legal or equitable claim or title to
                               the Rancho Nuevo or Salado Ranch properties in Brooks
                               County described in the metes and bounds description of the
                               Judgment ofthis Court in Cause No. 2323, filed at Volume 9,
                               pages 58 through 63 as "Share A-1" and Share B-1" therein;
                               and that

D.        Slander of Title

          131.       Plaintiffs incorporate the allegations set forth above as if fully restated.

          132.      Plaintiffs are proper parties to this slander of title. Plaintiffs have a legal and

equitable interest in the Ranch Nuevo and Salado Ranch properties described above, the metes and

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                                                    2082
bounds of which are set forth in the Judgment of this Court attached hereto and incorporated herein

as Exhibit "C."

          133.      Defendants have made claims to Plainti ffs' property through their wrongful assertions

of ownership interests in the mineral estates for the Rancho Nuevo and Salado Ranch properties

described in Exhibit "C." Defendants have therefore uttered and published a disparaging statement

about the title to Plaintiffs property which was false, published with legal malice and causing

special damages. In addition, Defendants, have asserted to the present and on numerous occasions,

that they have the right to lease Plaintiffs mineral interests and have executive rights to Plaintiffs'

property which Defendants do not have.             Defendants have therefore uttered and published a

disparaging statement about the title to Plaintiffs property which was false, published with legal

malice and causing special damages.

          134.       Because they were wrongfully obtained, in violation of fiduciary obligations and as

a result of fraud, unconscionable conduct, serious non-disclosures and conflicts of interests, the

property interests asserted by Defendants to the subject property are, in fact, invalid

          135.       The object of this claim is to recover damages actual and punitive damages from

Defendants for their intentional and legally malicious false statements regarding Plaintiffs' property.

          136.      Defendants' repeated false assertions regarding Plaintiffs' mineral interests are the

publication of false words, disparaging Plaintiffs' title to the property described on Exhibit          "c"
hereto. At all material times, Defendants acted with malice, making the false claims deliberately and

without any reasonable grounds for doing so.

          137.      Accordingly, Plainti±Is bring this action to recover from Defendants actual damages

measured by the amounts wrongfully collected by Defendants through their wrongful assertion of

claims of ownership in the mineral estates set forth above. Plaintiffs also bring this action to recover

from Defendants punitive damages, in the greatest amount that may be recovered under Texas law,

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                                                 2083
for the intentional, malicious, and improper assertion by Dean and Shepherd's own interests to the

detriment of their clients, and the continuation of that improper assertion of interest by the other

Defendants, heirs and assigns of Dean and Shepherd.

          138.      Plaintiffs bring this action for the actual damages and punitive damages set forth

above. In addition, Plaintiffs have incurred attorneys' fees and costs as a result of Defendants'

actions and bring suit for such reasonable attorneys' fees and costs.

E.        Trespass to Try Title

          139.      Plaintiffs incorporate the allegations set forth above as if fully restated.

          140.      Plaintiffs are proper parties to this trespass to try title action. Plaintiffs have a legal

and equitable interest in the Ranch Nuevo and Salado Ranch properties described above, the metes

and bounds of which are set forth in the Judgment of this Court attached hereto and incorporated

herein as Exhibit "C."

          141.      Defendants have made claims to Plaintiffs' property through their wrongful assertions

of ownership interests in the mineral estates for the Rancho Nuevo and Salado Ranch properties

described in Exhibit "C."

          142.      The Perpetual Mineral Deed currently on file in the Brooks County deed records is

legally "void" and "invalid" as a matter of law. Because Plaintiffs did not enter into or execute the

Perpetual Mineral Deed, a document that was an incomplete, blank form when provided to them,

it does not constitute a valid encumbrance upon Plaintiffs' mineral estate as a matter of law.

          143.      Further, Plaintiffs have a superior title to the mineral estate underlying Rancho Nuevo

and Salado Ranch out of a common source, namely the partition Judgment entered by Judge

Laughlin on December 19, 1975. No mineral deed was executed by Plaintiffs after this Judgment

vesting one third of all mineral rights underlying the properties to Plaintiffs and making no reference

to Defendants. Although Defendants claim an interest through a void perpetual mineral deed

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                                                   2084
executed to Defendants by Plaintiffs on December 16, 1975, Plaintiffs legally had no such interest

on December 16, 1975, since the partition was not arguable valid or effective until December 19,

1975.

          144.       Plaintiffs bring this action for a judicial declaration stating that Plaintiffs have

superior title to the subject mineral estate and that Defendants and their assignees have no legal

claim to the mineral estate. In addition, Plaintiffs have incurred attorneys' fees and costs as a result

of Defendants' actions and bring suit for such reasonable attorneys' fees and costs.

F.        Action for Accounting

          145.       Plaintiffs incorporate the allegations set forth above as if fully restated.

          146.       Plaintiffs are proper parties to this action. Plaintiffs have a legal and equitable

interest in the Ranch Nuevo and Salado Ranch properties described above, the metes and bounds

of which are set forth in the Judgment of this Court attached hereto and incorporated herein as

Exhibit "C."

          147.       Defendants have made claims to Plaintiffs' property through their wrongful assertions

of ownership interests in the mineral estates for the Rancho Nuevo and Salado Ranch properties

described in Exhibit "C.

          148.       These claims by Defendants were procured through fraud, unconscionable conduct,

unconscionable contracts, breaches of fiduciary obligations, conflicts of interest and inequitable

actions. Such claims interfere with and hinder Plaintiffs' title to the subject property and subject

mineral estates.

          149.       Because they were wrongfully obtained, in violation of fiduciary obligations and as

a result of fraud, unconscionable conduct, serious non-disclosures and conflicts of interests, the

property interests asserted by Defendants to the subject property are, in fact, invalid.

          150.       The object of this claim is to recover damages actual and punitive damages from

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Plaintiffi' Third Amended Original Petition                                                         Page - 35 of 65-

                                                   2085
Defendants for their intentional assertion of an improper interest in Plaintiffs' property through

collection of royalties and proclamations of their own conflicting property interest to the property.

          lSI.      Defendants' repeated assertions oftheir invalid claim, as set forth above, to Plaintiffs'

property amount to utterances and publications of false words, disparaging Plaintiffs' title to the

property described on Exhibit "C" hereto. At all material times, Defendants acted with malice,

making the false claims deliberately and without any reasonable grounds for doing so.

          152.      At the time of Defendants' assertions of legal and equitable ownership of Plaintiffs'

mineral interests described in Exhibit "C," as set forth above, and at all times mentioned herein,

Plaintiffs were in fact the At all times mentioned, plaintiff was, and is, the owner in fee simple of

that real property.

          153.      Despite these repeated improper assertions of ownership by Defendants, Plaintiffs

have, at all relevant time, been the possessors of the Rancho Nuevo surface estates and co-

possessors of the Rancho Nuevo and Salado Ranch mineral estates and have been legally entitled

to such possession of the above-described premises. Through its execution of mineral leases and oil

and gas leases, and through its assignment and disposition of Plaintiffs' property, Defendants have

wrongfully entered upon and under the subject property and now continue to withhold possession

from Plaintiffs their rightful mineral interests in the property

          154.      Defendants have used and occupied the property under unlawful possession.

Plaintiffs are entitled to the leasehold value and/or rental value of the wrongfully withheld mineral

interest during such occupancy. Defendants are justly indebted to Plaintiffs in this amount by virtue

of their unlawful possession. In addition, Defendants have wrongfully collected lease revenues

through their improper assertion of a mineral interest. Plaintiffs have thereby been injured in that

same amount.

          155.      Defendants, and not Plaintiffs, are in possession of the accounts, funds and records

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                                                  2086
relating to oil and gas lease revenues, mineral revenues and other income derived from the subject

mineral interests. The conveyances, gifts, and transfers to and among Defendants in this case are

sufficiently complex and involved to justify an action for accounting. The exact nature and extent

ofthe revenues, expenses, and fund transfers relating to Defendants' improper assertion of a mineral

interest to and in Plaintiffs' property cannot be determined without an accounting of the transactions

of the parties, and an investigation of the bank accounts, legal files, trust accounts, pooling accounts,

and revenue and expense statements of Defendants relating to Ranch Nuevo and Salado Ranch is

necessary since there is no adequate remedy at law and in order to establish the value of the interests

of the parties.

          156.       Further, as Plaintiffs' attorneys, Dean and Shepherd owe Plaintiffs a legal duty to

account to them for their collection of funds from an improper manipulation of Plaintiffs' property,

accounts and legal interests. Defendants Dean and Shepherd, and their assigns, owe Plaintiffs an

accounting, as set forth above, as a matter of law.

          157.       Plaintiffs' agreement with Defendants Dean and Shepherd is a written agreement for

legal representation, and Plaintiffs have instituted herein a suit to quiet title and try title, among

other claims, all of which relate to this action for accounting. Therefore, under the Texas Civil

Practices and Remedies Code, Plaintiffs are entitled to the payment of their reasonable and

necessary attorney's fees in connection with this action for accounting.

          158.       Plaintiffs bring this action for a full accounting of the books, records and funds

identified above. In addition, Plaintiffs have incurred attorneys' fees and costs as a result of

Defendants' actions and bring suit for such reasonable attorneys' fees and costs.

G.        Constructive Trust

          159.      Plaintiffs incorporate the allegations set forth above as if fully restated.

          160.      Defendants Dean and Shepherd acquired their property interest to Plaintiffs' mineral

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                                                  2087
estate through fraud, unconscionable conduct, unconscionable contracts, breach of fiduciary duties,

conflicts of interests and over-reaching. As set forth above, the conflicts of interest of Dean and

Shepherd impaired the interests of the Garcias in the underlying litigation, Cause No. 2323, entitled

Jose A. Gonzales, et at. vs. Tomas G. Figueroa, et al. For example, although the mineral interests

should have been partitioned along with the surface rights, Dean and Shepherd chose not do so and

thereby shared in mineral revenues from both the Rancho Nuevo and Salado Ranch properties.

Because of their conflicting interest in receiving the greatest possible future revenue from their

"perpetual mineral deed," Dean and Shepherd failed to partition the mineral interests as the clients

had asked them to do and as their interests required.

          161.      Thus, Dean and Shepherd not only impermissibly and unconscionably granted to

themselves their clients' property, property that was the subject of the representation, but - make

matters worse - they failed to execute the objective of their clients in order to increase their own

revenues, at their clients' substantial disadvantage. Further, not all of Dean and Shepherd's clients

approved the property fee: Dean and Shepherd left the signatures lines for Oscar Garcia and Viola

Garcia blank.         Despite the fact that these clients never agreed to pay Dean and Shepherd with a

mineral deed, Dean and Shepherd have continued, in a legally unconscionable manner, to collect

mineral interests from those clients ever since this time in the mid-1970s. This is a continuing tort

and a continuing violation of their fiduciary duties to their clients, the Plaintiffs in this action.

          162.      On December 16,1975, Dean and Shepherd filed with this Court, a Partition Deed

reflecting a division of the surface estates of the Garcias and Figueroas, but keeping the mineral

interests under the Rancho Nuevo and Salado Ranch "undivided." Under this deed, structured by

Dean and Shepherd rather than the Garcias, the parties purportedly partitioned their surface rights

so that the Garcias were granted all rights to the surface estate in the Rancho Nuevo parcel (referred

to therein as "Share B-1 ") and the Figueroas were granted all rights to the surface estate in the

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Plaintiffs' Third Amended Original Petition                                                  Page - 38 of 65-

                                                2088
Salado parcel (referred to therein as "Share A-I "). Also, although the Garcias had requested a full

"partition in kind" of the properties, and although the Judgment stated that it was a "partition in

kind," Dean and Shepherd structured the partition so that all oil, gas and other mineral in and under

all of the property remained undivided with the ownership being vested one-third in the Garcias and

two-thirds in the Figueroas. This deed did not reflect or disclose, in any way, the one-half mineral

interest being withheld by Dean and Shepherd.

          163.      On December 19, 1975, Dean and Shepherd delivered to this Court and Judge C. W.

Laughlin, District Judge, Brooks County, signed a Judgment reflecting the Partition Deed filed by

Dean and Shepherd. Under this Judgment, the Court partitioned the surface rights so that the

Garcias were granted all rights to the surface estate in the Rancho Nuevo parcel (referred to therein

as "Share B-1") and the Figueroas were granted all rights to the surface estate in the Salado parcel

(referred to therein as "Share A-I "). Also, although the Garcias had requested a full "partition in

kind" of the properties, and although the Judgment stated that it was a "partition in kind," Dean and

Shepherd proffered to the Court the Judgment, signed by the Court, which stated that "[a]U oil, gas

and other mineral in and under all of the property ... shall remain undivided with the ownership

being vested one-third in the Plaintiffs [the Garcias] ... and two-thirds in Defendant, Tomasa G.

Figueroa." The Judgment reserved all executive rights to execute oil, gas and mineral leases in the

hands of the surface estate owners, thus leaving the Garcias with the executive rights to the 1093.83

acre Rancho Nuevo parcel and the Figueroas with the executive rights to the 2734.55 acre Salado

Ranch parcel.

          164.      The resulting Judgment thus divided the surface estate "in kind," one-third for the

Garcias and two-thirds for the Figueroas by granting the Garcias one-third of the land (the 1093.83

acre Rancho Nuevo parcel) and granting the Figueroas two-thirds of the land (the 2734.55 acre

Salado Ranch parcel), but failed to divide the mineral estate "in kind," keeping it "undivided" and

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Plaintiffs' Third Amended Original Petition                                                Page - 39 of 65-

                                                2089
allocating lease revenues one-third - two thirds between the Plaintiffs and Defendants.

          165.      This failure to divide the mineral estates at issue in the partition action benefitted

Dean and Shepherd because, by their failure to partition the mineral interests and compelling their

clients to execute a "one-half' mineral deed in each of the Garcia clients' mineral interests, they

granted to themselves an interest in oil, gas and mineral revenues from both the Rancho Nuevo

property and the Salado property. Had they divided the mineral estate so that (parallel to the surface

estate partition) the Garcias owned the mineral rights under the Rancho Nuevo parcel and the

Figueroas owned the mineral rights under the Salado parcel, then their illegal and improper

"perpetual mineral deed" from the Garcias would only grant them revenue from one of the parcels,

rather than both of them. Rather than fulfilling the request of their clients and protecting their

interests in the mineral estate under Rancho Nuevo, Dean and Shepherd preferred their own

improper financial interest by keeping the mineral interest undivided in the Partition Judgment and

impairing their clients' rights and interests. Further, as set forth above, in presenting the Partition

Judgment to the Court, Dean and Shepherd failed to infonn the Court or reflect in any way the

wrongful grant of mineral interests to themselves just three days earlier. Indeed, the Judgment

disavowed the validity of any other conveyance pursuant to the partition action, stating "[a] II other

relief requested by any party hereto not expressly granted herein is denied." The Judgment was

signed by Homer E. Dean, Jr., B. J. Shepherd, and Judge C.W. Laughlin. Dean and Shepherd failed

to advise Judge Laughlin of their conflict of interest, or their attempt to themselves "one-half' of

all the mineral interests of their clients just three days before.

          166.      After coercing their clients to purportedly assign one-half of all their long-held

mineral interests in an improper conveyance in violation of the Code of Professional Responsibility

and applicable state law, Dean unconscionably and fraudulently represented to Plaintiffs that the

insertion of his interest and the interest of Shepherd into the property interest was "necessary" to

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PlaintiffS' Third Amended Original Petition                                                   Page - 40 of 65-

                                                 2090
preserve the "validity" of the partition. This January 6, 1975 representation was false and relied

upon by Plaintiffs to their detriment. A true and correct copy of the letter making this representation

to Plaintiffs is attached hereto as Exhibit "H."

          167.      Thereafter, Dean began unconscionably transferring his wrongfully acquired mineral

interests to family members. For instance, in 1999, he transferred his alleged" 11 12th interest" in the

mineral interests underlying Rancho Nuevo and Salado Ranch to Dean Partners, Ltd., an Alice-based

limited partnership in which he is a partner. Because he had calculated the Garcias' originally had

a one third interest in the mineral estate, he calculated that he had taken a one twelfth interest,

Shepherd had a one twelfth interest, and the entire Garcia family had the other half, a one sixth

interest.

          168.      From 1976 through the present, Dean and Shepherd continued to breach their

fiduciary obligations to their clients, Plaintiffs in this action by:

                    (l)        continually collecting royalties on the mineral interests
                               fraudulently and improperly transferred to themselves;

                    (2)        continually withholding from Plaintiffs an accurate
                               accounting of funds received from royalty revenues from
                               Plaintiffs' property; and

                    (3)        continuing to assert an illegal and fraudulently obtained
                               interest to third parties, including Plaintiffs, mineral lessees,
                               oil and gas lessees and the Court.

          169.      This rule was further expressed in the following Disciplinary Rules, all of which were

in force for lawyers practicing in Texas in 1975:

                    (1)        Disciplinary Rule 5-103 - Avoiding Acquisition of Interest in
                               Litigation.
                               (1) - Acquire a lien granted by law to secure his fee or
                                       expenses.
                               (2) - Contract with a client for a reasonable contingent fee
                                       in a civil case.

                    (2)        Disciplinary Rule 5-104 - Limiting Business Relations with a Client

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Plaintiffs' Third Amended Original Petition                                                        Page - 41 of 65-

                                                     2091
                               (A) -     A lawyer shall not enter into a business transaction
                                         with a client if they have differing interests therein
                                         and if the client expects the lawyer to exercise his
                                         professional judgment therein for the protection of the
                                         client, unless the client has consented after full
                                         disclosure.

          170.       By compelling Plaintiffs, their clients, to enter into a conveyance to them of one-half

of their mineral interest -- at the same time that they were purportedly acting on their clients' behalf

with respect to those mineral interests - Dean and Shepherd acted unconscionably and violated their

duty of undivided allegiance and fidelity to Plaintiffs.

          171.       Further, by failing to explain their conflicts of interest to Plaintiffs prior to allegedly

entering into a conveyance from them of their mineral interests, Dean and Shepherd acted

unconscionably and violated their fiduciary obligations and duties of undivided allegiance, full

disclosure and fidelity to Plaintiffs. By failing to provide Plaintiffs with an opportunity to seek

independent legal counsel and advise in connection with their grant of mineral interests to Dean and

Shepherd acted unconscionably and violated their fiduciary obligations and duties of undivided

allegiance, full disclosure and fidelity to Plaintiffs.             By failing to provide Plaintiffs with an

opportunity to seek independent legal counsel and advise in connection with their grant of mineral

interests to Dean and Shepherd acted unconscionably and violated their fiduciary obligations and

duties of undivided allegiance, full disclosure and fidelity to Plaintiffs. By failing to advise

Plaintiffs of the material risks and impropriety of granting to them a property interest during the

representation, Dean and Shepherd acted unconscionably and violated their fiduciary obligations

and duties of undivided allegiance, full disclosure and fidelity to Plaintiffs.

          172.       Further, because the purported grant of "one-half' of Plaintiffs mineral interests to

Dean and Shepherd was unconscionably, unreasonable and unfair, conveying such interests to

themselves was a breach of their fiduciary obligations of undivided allegiance, full disclosure and


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Plaintiffs' Third Amended Original Petition                                                        Page - 42 of 65-

                                                      2092
fidelity to Plaintiffs. Further, by failing to advise Plaintiffs that the purported conveyance by them

was "void" under Texas law, Dean and Shepherd acted unconscionably and violated their fiduciary

obligations and duties of undivided allegiance, full disclosure and fidelity to Plaintiffs. By failing

to advise Plaintiffs that the purported conveyance by them was "void" under Texas law, Dean and

Shepherd acted unconscionably and violated their fiduciary obligations and duties of undivided

allegiance, full disclosure and fidelity to Plaintiffs. By failing to advise Plaintiffs that the purported

conveyance by them was violated Texas Disciplinary Rules and Texas law, Dean and Shepherd

acted unconscionably and violated their fiduciary obligations and duties of undivided allegiance, full

disclosure and fidelity to Plaintiffs. By falsely advising Plaintiffs that the alleged Partition Deed,

inserting their own interests in contravention of the Court's Partition Judgment was necessary "so

that this partition will be valid," Dean and Shepherd acted unconscionably and violated their

fiduciary obligations and duties of truthfulness, full disclosure and fidelity to Plaintiffs.

           173.       Further, by collecting oil and gas royalties from 1975 to the present on Plaintiffs'

mineral interests, Dean and Shepherd acted unconscionably and violated their fiduciary obligations

and duties of truthfulness, full disclosure and fidelity to Plaintiffs. By asserting ownership of

Plaintiffs' mineral interests, re-conveying those interests to family members, and refusing to return

those property interests to Plaintiffs from 1975 to the present, Dean and Shepherd acted

unconscionably and violated their fiduciary obligations and duties of full disclosure and fidelity to

Plaintiffs.

           174.       Further, by fraudulently concealing their own fraudulent actions and breaches of

fiduciary duty from 1975 to the present, Dean and Shepherd acted unconscionably and violated their

fiduciary obligations and duties of truthfulness, full disclosure and fidelity to Plaintiffs.

           175.      In choosing not pursue a partition the mineral estate, as requested, so as to further

their own interests to the detriment of Plaintiffs, and in thereby sharing in mineral revenues from

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                                                   2093
both the Rancho Nuevo and Salado properties due to a conflict of interest in receiving and the

creation of a "perpetual mineral deed," Dean and Shepherd acted unconscionably and failed to

partition the mineral interests as the clients had asked them to do and as their interests required.

Thus, Dean and Shepherd not only impermissibly granted to themselves their clients' property,

property that was the subject of their representation of their clients, they acted unconscionably and

failed to execute the objective of their clients in order to increase their own revenues, at their clients'

substantial disadvantage. This was a violation of the obligations of Dean and Shepherd to Plaintiffs

of faithfulness, undivided loyalty, truthfulness, full disclosure and fidelity.

           176.      The fraudulent statements and non-disclosures of Dean and Shepherd set forth above

regarding their own interests were material because Plaintiff would not have permitted the subject

property to be transferred to them if those statements had not been made, if disclosures of conflicts

had been made, or if Defendants' non-disclosures of their fiduciary obligations and the truth ofthe

"validity" of the partition had been revealed to Plaintiffs. As set forth, the representations of dean

and Shepherd regarding their alleged interest in Plaintiffs' mineral rights were false because such

interests were not "valid" or "necessary," to effectuate a partition on behalf of Plaintiffs.

           177.      Defendants Dean and Shepherd made these fraudulent statements and non-disclosures

with the intent that Plaintiffs would act upon them in purporting to transfer their mineral rights to

Dean and Shepherd. Plaintiffs were unaware ofthe falsity ofthe representations and the undisclosed

matters, and were and unaware of the true intent of Defendants Dean and Shepherd.

           178.      As set forth above, Dean and Shepherd fraudulently concealed their own improper

conduct, unconscionable conduct, fraud and breach of fiduciary obligations by failing to disclose

their true collections of revenue and fiduciary obligations, maintaining all records of transactions

among defendants and regarding the property in secret and failing to disclose them to Plaintiffs, even

after inquiries were made to Dean by Plaintiffs.

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                                                 2094
          179.       Plaintiffs have been injured and have been deprived of the full use and enjoyment of

their property, because Plaintiff relied on the obligations, promises and representations of

Defendants. In contrast, Defendants have been unjustly enriched by being allowed to retain

Plaintiff's property interests. A constructive trust on the property is the only remedy that will prevent

the unjust enrichment of Defendants at Plaintiffs' expense.

          180.       Plaintiffs request that the Court establish a constructive trust with respect to the

property, with Defendants as trustees, and transfer the subject property, specifically identified in

Exhibit "C," to Plaintiffs. In addition, the conduct of Defendants Dean and Shepherd, as described

above, was fraudulent and unconscionable, and Defendants conducted with the intent of

economically injuring Plaintiffs, their clients, for the profit of Defendants. As a result, Plaintiffs are

entitled to recover exemplary damages to deter similar conduct by the defendant and others. In this

connection, Plaintiffs will show that, as a result of Defendants' conduct, Plaintiffs have suffered

losses of time and other expenses, including attorney's fees incurred in the investigation and

prosecution of this action. Accordingly, Plaintiffs ask that punitive damages be awarded against

Defendants in a sum within the jurisdictional limits of this Court.

H.        Breach of Fiduciary Duty - Actual Damages, Punitive Damages and Fee
          Forfeiture - As Claims Only of Plaintiffs Tomasita Ramos, Maria Garcia, Gloria
          Garcia, Oscar Garcia and Viola Garcia

          181.       Plaintiffs incorporate the allegations set forth above as if fully restated.

          182.       Defendants Dean and Shepherd owed to Plaintiffs Tomasita Ramos, Maria Garcia,

Gloria Garcia, Oscar Garcia and Viola Garcia fiduciary duties as their counsel.

          183.       According to well-established Texas law, these duties included the following:

                     (1)       the duty to represent their clients with "undivided loyalty";

                     (2)       the duty to act with "utmost good faith" toward the clients;

                     (3)       the duty to act with absolute perfect candor, openness, and

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                                                   2095
                               honesty;

                     (4)       the duty to refrain from self-dealing;

                     (5)       the duty to act with integrity ofthe strictest kind;

                     (6)       the duty of fair, honest dealing;

                     (7)       the duty of full disclosure; and

                     (8)       the duty not to conceal matters that might influence a
                               fiduciary to act in a manner prejudicial to the client;

                     (9)       the duty to preserve client confidences;

                     (10)      the duty to act toward the client without any concealment or
                               deception;

                     (11)      the duty to be strictly honest about fee arrangements and to
                               refrain from self-dealing in connection with a fee
                               arrangement;

                     (12)      the duty not to enter into a contingent-fee agreement during
                               the course of the representation giving the attorneys a greater
                               percentage of recovery than the original agreement;

                     (13)      the duty not to induce a client to execute a deed of property
                               to the attorneys as a part of the fee, when that deed IS
                               executed during the attorney client relationship;

                     (14)      the duty to inform the client of all matters material to the
                               representation;

                     (15)      the duty to turn over funds belonging to the clients;

                     (16)      the duty to timely inform the client of a conflict of interest;

                     (17)      the duty to timely inform the client of a conflict of interest
                               regarding enforcement of a fee agreement;

                     (18)      the duty not to collect a fee or property from a client when a
                               conflicts of interest of interest exists absent full written
                               disclosures of the conflicts of interests to all affected clients
                               and absent signed, written waivers of those conflicts of
                               interest by all affected clients after a reasonable opportunity
                               to inquire regarding the conflicts;


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                                                     2096
                     (19)      the duty to follow the client's instruction; and

                     (20)      the duty to make a full and fair disclosure to all clients of a
                               proposed settlement;

                     (21)      the duty to disclose and explain conflicts of interest and fee
                               agreements to clients in a language understandable by that
                               client;

                     (22)      the duty not to acquire a proprietary interest in the subject
                               matter of litigation he is conducting for a client; and

                     (23)      the duty not to enter into a business transaction with a client
                               if they have differing interests therein and if the client expects
                               the lawyer to exercise his professional judgment therein for
                               the protection of the client, unless the client has consented
                               after full disclosure.

          184.       Defendants Dean and Shepherd breached each of these duties to Plaintiffs Tomasita

Ramos, Maria Garcia, Gloria Garcia, Oscar Garcia and Viola Garcia. Dean and Shepherd violated

these duties by taking the following actions against their clients, all of which were fraudulently

concealed until November of2007:

                     (1)       compelling Plaintiffs to convey half of Plaintiffs mineral
                               interest to them as their attorneys, as a prerequisite to
                               continuing the representation and completing legal work for
                               Plaintiffs;

                     (2)       misrepresenting facts to Plaintiffs, and deceiving them
                               regarding their rights and the amount owed for legal services,

                     (3)       failing to disclose to Plaintiffs serious conflicts of interests
                               inherent in their seeking to own a portion of the property that
                               was the subject of their representation of Plaintiffs while
                               representing Plaintiffs;

                     (4)       failing to disclose to Plaintiffs serious the legally
                               impermissible nature of their proposed conveyance from
                               Plaintiffs;

                     (5)       failing to disclose to Plaintiffs the true nature of the proposed
                               conveyance from Plaintiffs to them in a language they
                               understood;


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                                                     2097
                    (6)        failing to explain to Plaintiffs, in a language they understood,
                               the nature ofthe proposed conveyance from Plaintiffs to them
                               or recommending that Plaintiffs seek outside legal counsel
                               before entering into the mineral deed conveyance to them;

                    (7)        impermissibly entering into a business transaction with
                               clients where they have differing interests from the clients,
                               and failing to obtain full consent after disclosure in order to
                               enter into such a business transaction;

                    (8)        impermissibly entering into a conveyance transaction with
                               their clients where the property conveyed was the subject of
                               their representation of those clients;

                    (9)        failing to enter into a written fee agreement at the
                               commencement of their representation;

                    (10)       switching the nature of the fee agreement from hourly to a
                               fifty percent contingency fee after legal services had already
                               been performed, and drastically increasing their own fee after
                               legal services had already been performed;

                     (11)      altering a partition deed after it was executed, filling in a
                               document after it has been executed by a client and failing to
                               disclose W Plaintiffs the legal prohibitions on doing so;

                    (12)       altering a fee agreement during representation;

                    (13)       failing to disclose to Plaintiffs their hourly rate or the number
                               of hours worked before collection of fees, and failing to
                               maintain billing records, record services or provide billing
                               statements to their clients;

                     (14)      failing to disclose to Plaintiffs that the monetary fee collected
                               was full payment for legal services rendered, and deceiving
                               Plaintiffs by misrepresenting that there was a further fee, the
                               mineral interest, owing in December of 1975;

                    (15)       failing to disclose to Plaintiffs that they had a conflict of
                               interest in that they would earn greater future royalties
                               through failing to divide the mineral estates from the
                               Figueroas, as they had been instructed to do;

                    (16)       failing to disclose to Plaintiffs the expert appraisal obtained
                               by them as their attorneys and failing to disclose the value of
                               their mineral estate, and the value of the estate taken by Dean
                               and Shepherd during the representation;

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                                                     2098
                    (ll)       failing to disclose to Plaintiffs that the State Bar and Texas
                               law requirements for business transactions with clients,
                               waivers of conflicts of interest, full explanation and candor
                               with clients, written fee agreements, and self-dealing had not
                               been met, and failing to disclose to Plaintiffs what those
                               requirements were;

                    (18)       entering into the mineral interest conveyance an violating the
                               applicable standard for conduct of attorneys in Texas;

                    (19)       switching and increasing the fee agreement, violating the
                               applicable standard for conduct of attorneys in Texas;

                    (20)       with respect to Oscar Garcia and Viola Garcia, failing their
                               instructions and the withholding of their consent regarding
                               conveyance of a mineral interest to Dean and Shepherd as a
                               fee;

                    (21)       with respect to Oscar Garcia and Viola Garcia, deceiving
                               them into believing that the uncompleted mineral deed
                             . presented to them was a document to partition the Figueroa
                               and Garcia property, rather than a conveyance to dean and
                               Shepherd;

                    (22)       with respect to Dean, fraudulently altering documents
                               executed by Plaintiffs after that execution and prior to tiling,
                               including the partition deed (inserting a self-dealing
                               paragraph to convey and interest to themselves) and the
                               mineral deed (filling in portions of the document after
                               execution);

                    (23)       on an ongoing basis through the present, failing to disclose to
                               Plaintiffs and fraudulently concealing from Plaintiffs the true
                               nature of the mineral conveyance made, the documents
                               actually filed in connection with their representation, the
                               alteration of those documents, and the nature of their asserted
                               interest in Plaintiffs' property;

                    (24)       intentionally, and for their own interests, disclosing to third
                               parties without authorization attorney client privileged
                               documents, including an attorney client memorandum
                               between Dean and Shepherd revealing the strengths and
                               weaknesses of Plaintiffs' case against the Figueroas;

                    (25)       misrepresenting to third parties, including adjoining land
                               owners that they, Dean and Shepherd, owned the "executive
                               rights" regarding the conveyed mineral interest, including the

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                                                     2099
                               right to unilaterally enter leases, when they had previously
                               made representations to Plaintiffs to the contrary, and when
                               Dean and Shepherd did not, in fact, own those rights;

                    (26)       engaging in self-dealing by conveying Plaintiffs' property to
                               themselves with no legal basis to do so, misrepresenting to
                               third parties that they, Dean and Shepherd, had the executive
                               rights to the property rather than their clients; obtaining an
                               interest on property that should have been partitioned and
                               conveyed to other parties during the course of the
                               representation; falsely understating the value of property
                               conveyed to themselves to hide the impropriety of that
                               conveyance; false overstating the value of legal services to
                               Plaintiffs to hide the impropriety of that conveyance;
                               fraudulently inserting a conveyance to themselves in
                               documents filed in the property records without disclosure to
                               Plaintiffs; and developing and seeking to develop Plaintiffs'
                               property for their own benefit in a manner not authorized or
                               instructed by Plaintiffs;

                    (27)       failing to make to each of the Plaintiffs written disclosures of
                               the conflicts of interests and facts set forth above;

                    (28)       failing to obtain from Plaintiffs written waivers of the
                               conflicts of interest, business transactions with clients, and
                               acts of self-dealing set forth above;

                    (29)       with respect to Dean, improperly and without consent,
                               altering the Partition Deed signed by Plaintiffs and filed with
                               the Brooks County property records, so that a paragraph "6a,"
                               reflecting a conveyance to Dean and Shepherd, was
                               fraudulently inserted after execution ofthe document without
                               that improper, self-dealing paragraph;

                    (30)       charging and collecting from their clients an illegal and
                               unconscionable fee, and continuing to do so through the
                               present by holding and collecting revenue from Plaintiffs'
                               mineral interest;

                    (31)       falsely representing to third parties, including lessees and
                               potential lessees that Dean and Shepherd had the executive
                               right to lease Plaintiffs' property and failing to disclose to
                               Plaintiffs that such false communications against their interest
                               were being made;

                    (32)       breaching their duties to disclose the material facts and
                               violations set forth above, and fraudulently concealing such

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                                                    2100
                               breaches so as to prevent Plaintiffs from discovering their
                               causes of action against Defendants; and

                    (33)       failing, as set forth above, in their duties of "undivided
                               loyalty," "utmost good faith," "absolute perfect candor,"
                               "openness and honesty," and in their duty to refrain from self-
                               dealing, to act with integrity of the strictest kind, to be fair
                               and use honest dealing, to make full disclosure; not to conceal
                               matters that might influence a fiduciary to act in a manner
                               prejudicial to the client, to preserve client confidences, to act
                               toward the client without any concealment or deception, to be
                               strictly honest about fee arrangements and to refrain from
                               self-dealing in connection with a fee arrangement, not to enter
                               into a contingent-fee agreement during the course of the
                               representation giving the attorneys a greater percentage of
                               recovery than the original agreement, not to induce a client to
                               execute a deed of property to the attorneys as a part ofthe fee,
                               when that deed is executed during the attorney client
                               relationship, to inform the client of all matters material to the
                               representation, to turn over funds belonging to the clients, to
                               timely inform the client of a conflict of interest, to timely
                               inform the client of a conflict of interest regarding
                               enforcement of a fee agreement, not to collect a fee or
                               property from a client when a conflicts of interest of interest
                               exists absent full written disclosures of the conflicts of
                               interests to all affected clients and absent signed, written
                               waivers of those conflicts of interest by all affected clients
                               after a reasonable opportunity to inquire regarding the
                               conflicts, to follow the client's instruction, to make a full and
                               fair disclosure to all clients of a proposed settlement, to
                               disclose and explain conflicts of interest and fee agreements
                               to clients in a language understandable by that client, not to
                               acquire a proprietary interest in the subject matter of
                               litigation he is conducting for a client, and not to enter into a
                               business transaction with a client if they have differing
                               interests therein and if the client expects the lawyer to
                               exercise his professional judgment therein for the protection
                               of the client, unless the client has consented.

          185.      Each of the breaches of duty set forth above was a proximate cause of damages to

Plaintiffs Tomasita Ramos, Maria Garcia, Gloria Garcia, Oscar Garcia and Viola Garcia. These

violations of duty are ongoing in that Defendants Dean and Shepherd owe an ongoing fiduciary duty

to Plaintiffs Tomasita Ramos, Maria Garcia, Gloria Garcia, Oscar Garcia and Viola Garcia by


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Plaintiffs' Third Amended Original Petition                                                        Page - 51 of 65-

                                                     2101
continuing to earn portions of their wrongfully collected fee through revenues from the mineral

property taken from them. By violating these duties to their clients, Dean and Shepherd caused

economic damages to Plaintiffs equal to the value of the mineral interest, in today's market,

wrongfully conveyed to themselves, as well as the lost revenues from that property since December

of 1975.

           186.      As their attorneys, Dean and Shepherd have had an ongoing duty to disclose their

fraudulent conduct, their breaches of fiduciary duty, and the actions taken by them against their

clients' interests, but have continually failed to do so, either in writing or verbally, and have actively

and fraudulently concealed from Plaintiffs Tomasita Ramos, Maria Garcia, Gloria Garcia, Oscar

Garcia and Viola Garcia this wrongful conduct.

           187.      Plaintiffs Tomasita Ramos, Maria Garcia, Gloria Garcia, Oscar Garcia and Viola

Garcia sue Defendants Dean and Shepherd for both actual and punitive damages, in the maximum

amount allowable under Texas law, for these breaches of fiduciary duty.

           188.      Plaintiffs Tomasita Ramos, Maria Garcia, Gloria Garcia, Oscar Garcia and Viola

Garcia sue Defendants Dean and Shepherd, and Dean's successor in interest Dean Partners, Ltd., for

a complete forfeiture of the mineral interest wrongfully conveyed to them, as a remedy for their

breaches of fiduciary duty.

           189.      Because Defendants Dean and Shepherd charged Plaintiffs an illegal and

unconscionable fee, Plaintiffs Tomasita Ramos, Maria Garcia, Gloria Garcia, Oscar Garcia and

Viola Garcia sue Dean, Shepherd and Dean's successor in interest, Dean Partners, Ltd., for a

complete forfeiture of the fee, including a forfeiture of all amounts paid to Dean and Shepherd by

Plaintiffs and a complete forfeiture of the mineral interest wrongfully conveyed to them.

G.        Fraud against Dean

          190.       Plaintiffs incorporate the allegations set forth above as if fully restated.

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                                                   2102
          191.      As set forth above, Defendant Dean engaged in a series of actions which, through

trick, artifice and misrepresentation, resulted in Plaintiffs and their descendants executing a mineral

deed, dated December 16, 1975.

          192.      More specifically, Dean represented to Plaintiffs, who lacked education, the ability

to speak English or sophistication in legal matters, that the documentation they executed on

December 16, 1975 and December 19, 1975 was necessary to complete the partition of Plaintiffs'

property interests from those of the Figueroas, as Defendants had been hired to do. However, in

fact, the documentation included a "fee agreement" and "mineral deed' intended to grant to Dean and

Shepherd one half of Plaintiffs mineral estate, the subject matter of Defendants' representation.

          193.      In addition, Dean committed fraud against Plaintiffs Tomasita Ramos, Maria Garcia,

Gloria Garcia, Oscar Garcia and Viola Garcia as follows: Dean, fraudulently altered a mineral deed

to himself by filling in substantive portion after it was executed by Plaintiffs; and fraudulently

altered a partition deed executed by Plaintiffs after that execution and prior to filing by inserting a

self-dealing paragraph "6a" to reflect that Plaintiffs interests were subject to a conveyance to Dean

and Shepherd when, in fact Plaintiffs had not executed that version of the partition deed and did not

consent to their interests being subject to those of Dean and Shepherd.

          194.      In a letter dated January 6, 1976, Dean fraudulently misrepresented to the Garcias

that the reason paragraph 6a was inserted and failed to disclose that it was improperly and

fraudulently inserted by him solely for his and Shepherd's interests. The letter falsely stated that

the paragraph was inserted to make the partition valid, when if fact it had no legal effect on the

validity ofthe partition and did have a legal effect on the mineral deed of Dean and Shepherd. The

letter by Dean to "the heirs of Casimiro Ramos" read:

                    Enclosed is a copy of the partition deed. I overlooked the mineral deed you
                    made to Mr. Shepherd and me and have added a reference to it so that this
                    partition will be valid. (emphasis added)

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                                                2103
This constituted a materially false statement and a non-disclosure by Dean and Shepherd that had

the effect of making their improper conduct undiscoverable, because the clients were told that the

mineral deed to Dean and Shepherd was necessary "so that [the] partition will be valid."

          195.       In addition, Dean defrauded Plaintiffs Tomasita Ramos, Maria Garcia, Gloria Garcia,

Oscar Garcia and Viola Garcia by:

                     (1)       compelling Plaintiffs to convey half of Plaintiffs mineral
                               interest to them as their attorneys, as a prerequisite to
                               continuing the representation and completing legal work for
                               Plaintiffs;

                     (2)       misrepresenting facts to Plaintiffs, and deceiving them
                               regarding their rights and the amount owed for legal services,

                     (3)       failing to disclose to Plaintiffs serious conflicts of interests
                               inherent in their seeking to own a portion of the property that
                               was the subject of their representation of P-laintiffs while
                               representing Plaintiffs;

                     (4)       failing to disclose to Plaintiffs serious the legally
                               impermissible nature of their proposed conveyance from
                               Plaintiffs;

                     (5)       failing to disclose to Plaintiffs the true nature of the proposed
                               conveyance from Plaintiffs to them in a language they
                               understood;

                     (6)       failing to explain to Plaintiffs, in a language they understood,
                               the nature of the proposed conveyance from Plaintiffs to them
                               or recommending that Plaintiffs seek outside legal counsel
                               before entering into the mineral deed conveyance to them;

                     (7)       impermissibly entering into a business transaction with
                               clients where they have differing interests from the clients,
                               and failing to obtain full consent after disclosure in order to
                               enter into such a business transaction;

                     (8)       impermissibly entering into a conveyance transaction with
                               their clients where the property conveyed was the subject of
                               their representation of those clients;

                     (9)       failing to enter into a written fee agreement at the
                               commencement of their representation;

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                                                     2104
                    (10)      switching the nature of the fee agreement from hourly to a
                              fifty percent contingency fee after legal services had already
                              been performed, and drastically increasing their own fee after
                              legal services had already been performed;

                    (11)      failing to disclose to Plaintiffs the manner and dates on which
                              documents reflected that they were executed where they were
                              filed with notaries indicated inaccurate information, and the
                              legal prohibitions on doing so;

                    (12)      altering a fee agreement during representation;

                    (13)      failing to disclose to Plaintiffs their hourly rate or the number
                              of hours worked before collection of fees, and failing to
                              maintain billing records, record services or provide billing
                              statements to their clients;

                    (14)      failing to disclose to Plaintiffs that the monetary fee collected
                              was full payment for legal services rendered, and deceiving
                              Plaintiffs by misrepresenting that there was a further fee, the
                              mineral interest, owing in December of 1975;

                    (15)       failing to disclose to Plaintiffs that they had a conflict of
                               interest in that they would earn greater future royalties
                               through failing to divide the mineral estates from the
                               Figueroas, as they had been instructed to do;

                    (16)       failing to disclose to Plaintiffs the expert appraisal obtained
                               by them as their attorneys and failing to disclose the value of
                               their mineral estate, and the value of the estate taken by Dean
                               and Shepherd during the representation;

                    (16)       failing to disclose to Plaintiffs that the State Bar and Texas
                               law requirements for business transactions with clients,
                               waivers of conflicts of interest, full explanation and candor
                               with clients, written fee agreements, and self-dealing had not
                               been met, and failing to disclose to Plaintiffs what those
                               requirements were;

                    (17)       entering into the mineral interest conveyance an violating the
                               applicable standard for conduct of attorneys in Texas;

                    (18)       switching and increasing the fee agreement, violating the
                               applicable standard for conduct of attorneys in Texas;

                    (19)       with respect to Oscar Garcia and Viola Garcia, failing their
                               instructions and the withholding of their consent regarding

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Plaintiffs' Third Amended Original Petition                                                       Page - 55 of 65-

                                                    2105
                               conveyance of a mineral interest to Dean and Shepherd as a
                               fee;

                    (20)       with respect to Oscar Garcia and Viola Garcia, deceiving
                               them into believing that the uncompleted mineral deed
                               presented to them was a document to partition the Figueroa
                               and Garcia property, rather than a conveyance to dean and
                               Shepherd;

                    (21)       fraudulently submitting inaccurate notary pages in documents
                               executed by Plaintiffs and filed with the deed records, causing
                               them to falsely reflect the date and manner in which they
                               were truly executed;

                    (22)       on an ongoing basis through the present, failing to disclose to
                               Plaintiffs and fraudulently concealing from Plaintiffs the true
                               nature of the mineral conveyance made, the documents
                               actually filed in connection with their representation, the
                               alteration of those documents, and the nature of their asserted
                               interest in Plaintiffs' property;

                    (23)       intentionally, and for their own interests, disclosing to third
                               parties without authorization attorney client privileged
                               documents, including an attorney client memorandum
                               between Dean and Shepherd revealing the strengths and
                               weaknesses of Plaintiffs' case against the Figueroas;

                    (24)       misrepresenting to third parties, including adjoining     <




                               land owners that they, Dean and Shepherd, owned the
                               "executive rights" regarding the conveyed mineral
                               interest, including the right to unilaterally enter
                               leases, when they had previously made
                               representations to Plaintiffs to the contrary, and when
                               Dean and Shepherd did not, in fact, own those rights;

                    (25)       engaging in self-dealing by conveying Plaintiffs' property to
                               themselves with no legal basis to do so, misrepresenting to
                               third parties that they, Dean and Shepherd, had the executive
                               rights to the property rather than their clients; obtaining an
                               interest on property that should have been partitioned and
                               conveyed to other parties during the course of the
                               representation; falsely understating the value of property
                               conveyed to themselves to hide the impropriety of that
                               conveyance; false overstating the value of legal services to
                               Plaintiffs to hide the impropriety of that conveyance;
                               fraudulently inserting a conveyance to themselves in
                               documents filed in the property records without disclosure to

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                                                    2106
                               Plaintiffs; and developing and seeking to develop Plaintiffs'
                               property for their own benefit in a manner not authorized or
                               instructed by Plaintiffs;

                    (27)       failing to make to each of the Plaintiffs written disclosures of
                               the conflicts of interests and facts set forth above;

                    (28)       failing to obtain from Plaintiffs written waivers of the
                               conflicts of interest, business transactions with clients, and
                               acts of self-dealing set forth above;

                    (29)       with respect to Dean, improperly and without consent,
                               altering the Partition Deed signed by Plaintiffs and filed with
                               the Brooks County property records, so that a paragraph "6a,"
                               reflecting a conveyance to Dean and Shepherd, was
                               fraudulently inserted after execution of the document without
                               that improper, self-dealing paragraph;

                    (30)       charging and collecting from their clients an illegal and
                               unconscionable fee, and continuing to do so through the
                               present by holding and collecting revenue from Plaintiffs'
                               mineral interest;

                    (31)       falsely representing to third parties, including lessees and
                               potential lessees that Dean and Shepherd had the executive
                               right to lease Plaintiffs' property and failing to disclose to
                               Plaintiffs that such false communications against their interest
                               were being made;

                    (32)       breaching t heir duties to disclose the material facts and
                               violations set forth above, and fraudulently concealing such
                               breaches so as to prevent Plaintiffs from discovering their
                               causes of action against Defendants.

          196.      The misrepresentations and deceptive acts set forth above were false representations

and non-disclosures of material facts made with the intention that Plaintiffs In a letter dated January

6, 1976, Dean misrepresented to the Garcias the reason that this was inserted and failed to disclose

that it was improperly and fraudulently inserted by Dean solely for his and Shepherd's interests.

The letter falsely stated that the paragraph was inserted to make the partition valid, when if fact it

had no legal effect on the validity ofthe partition and did have a legal effect on the mineral deed of

Dean and Shepherd. The letter by Dean to "the heirs of Casimiro Ramos" read:

P2057/S1485IRLLlMB             11/18/08/lef
Plaintiffs' Third Amended Original Petition                                                       Page - 57 of 65-

                                                     2107
          Enclosed is a copy of the partition deed. I overlooked the mineral deed you made
          to Mr. Shepherd and me and have added a reference to it so that this partition will
          be valid. (emphasis added)

This constituted a materially false statement and a non-disclosure by Dean and Shepherd that had

the effect of making their improper conduct undiscoverable, because the clients were told that the

mineral deed to Dean and Shepherd was necessary "so that [the] partition will be valid."

with the intent that they rely upon them to their detriment, which they did, in executing documents

purporting to convey to Dean and Shepherd one half of Plaintiffs' mineral interests.

          197.      Plaintiffs were harmed and damaged by Dean's fraudulent conduct and hereby sue

for all recoverable actual and punitive damages resulting from that conduct.

I.        Declaratory Judgment

          198.      Plaintiffs incorporate the allegations set forth above as if fully restated.

          199.      Under the Texas Declaratory Judgment Act and based upon the facts set forth above,

Plaintiffs request that this Court enter declarations as follows:

                    (1)        That the "Fee Agreement" purportedly entered into between
                               Defendants Homer E. Dean, Jr., and B.J. Shephe rd and
                               Plaintiffs is an "unconscionable contract," void ab initio and
                               of no legal effect, and that Defendants have no legal or
                               equitable claim or title to the Rancho Nuevo or Salado Ranch
                               properties in Brooks County described in the metes and
                               bounds description of the Judgment of this Court in Cause
                               No. 2323, filed at Volume 9, pages 58 through 63 as "Share
                               A-I" and Share B-1" therein.

                    (2)        That the "Perpetual Mineral Deed" purportedly entered into
                               between Defendants Homer E. Dean, Jr., and B.J. Shepherd
                               andPlaintiffs is an "unconscionable contract," void ab initio
                               and of no legal effect, and that Defendants have no legal or
                               equitable claim or title to the Rancho Nuevo or Salado Ranch
                               properties in Brooks County described in the metes and
                               bounds description of the Judgment of this Court in Cause
                               No. 2323, filed at Volume 9, pages 58 through 63 as "Share
                               A-1" and Share B-1" therein.

                    (3)        That the purported "Partition Deed" entered into between

P2057/S1485IRLLlMB             11/18/08/lef
Plaintiffs' Third Amended Original Petition                                                        Page - 58 of 65-

                                                    2108
                               Defendants Homer E. Dean, Jr., and BJ. Shepherd and
                               purportedly filed with this Court in January of 1976 is
                               "unconscionable," void ab initio and of no legal effect, and
                               that Defendants have no legal or equitable claim or title to the
                               Rancho Nuevo or Salado Ranch properties in Brooks County
                               described in the metes and bounds description of the
                               Judgment ofthis Court in Cause No. 2323, filed at Volume 9,
                               pages 58 through 63 as "Share A-I" and Share B-1" therein.

                     (4)       That, based upon the facts and circumstances under which
                               Defendants Homer E. Dean, Jr., Dean Partners, Ltd. and B.J.
                               Shepherd allegedly acquired their interests in the property,
                               these Defendants have no legal or equitable claim or title to
                               the Rancho Nuevo or Salado Ranch properties in Brooks
                               County described in the metes and bounds description of the
                               Judgment ofthis Court in Cause No. 2323, filed at Volume 9,
                               pages 58 through 63 as "Share A-I" and Share B-1" therein.

                     (5)       That, based upon the fact that no consideration was paid by
                               Plaintiffs for the December 16, 1975 mineral deed
                               conveyance asserted by Defendants, such mineral deed and
                               purported conveyance are void for failure of consideration.

                     (6)       That DR 5-103 and DR 5-104 of the Texas Code of
                               Professional Responsibility constituted the public policy of
                               the State of Texas in 1975.

                     (7~       That Defendants Shepherd and Dean violated DR 5-103 and
                               DR 5- 104 through their conduct toward Plaintiffs.

          200.       Further, Defendants Dean and Shepherd provided to this Court a Judgment in Cause

No. 2323, entitled Jose A. Gonzales, et at. vs. Tomas G. Figueroa, et aI, that was signed by the Court

on December 19, 1975 and filed on December 22, 1975. This Judgment made no reference to a

mineral interest by Dean or Shepherd and stated that the mineral interests of the parties were to be

"undivided" as "one third" to the Garcias and "two thirds" to the Figueroas. Dean and Shepherd

both signed the Judgment and stated over their signatures "approved and agreed to." (emphasis

added)

          201.       Therefore, as ofthe date ofthis Judgment and according to that Judgment no mineral

interest of Dean or Shepherd was disclosed to the Court or made the basis of the Judgment. This

P2057/S1485IRLLlMB             11/18/08/1et'
Plaintiffs' Third Amended Original Petition                                                       Page - 59 of 65-

                                                    2109
Judgment has a res judicata effect over any future litigation, orders, or claims as between the

Garcias and Dean and Shepherd, who signed the judgment and "agreed to" the Judgment excluding

their interests. The purported mineral deed of Dean and Shepherd was signed on December 16,

1975, preceding the Judgment and being voided by that judgment through its res judicata effect.

          202.       In addition, Dean and Shepherd represented to the Court that the Judgment of

December 22, 1975 was valid and correct, approving its form and agreeing to its terms. Dean and

Shepherd are equitably estopped from claiming an interest contrary to the terms of this Judgment.

          203.      Under the Texas Declaratory Judgment Act, Plaintiffs request that this Court enter

declarations as follows:

                    (1)        That under the doctrine of res judicata, Dean and Shepherd
                               have no mineral interest in the Rancho Nuevo and Salado
                               Ranch properties described herein in Exhibit "C";

                    (2)        That under the doctrine of collateral estoppel, Dean and
                               Shepherd are equitably estopped by their conduct and
                               representations from claiming any mineral interest or other
                               interest in the Rancho Nuevo and Salado Ranch properties
                               described herein in Exhibit "C"; and

                    (3)        As a matter of law, Dean, Shepherd and Dean Partners, Ltd.
                               have no mineral interest or other interest in the Rancho
                               Nuevo and Salado Ranch pr operties described herein in
                               Exhibit "C" and any prior deed or other legal instrument
                               conflicting with this Judgment are void and of no legal effect.

                    (4)        That, based upon the fact that no consideration was paid by
                               Plaintiffs for the December 16, 1975 mineral deed
                               conveyance asserted by Defendants, such mineral deed and
                               purported conveyance are void for failure of consideration.

                    (5)        That DR 5-103 and DR 5-104 of the Texas Code of
                               Professional Responsibility constituted the public policy of
                               the State of Texas in 1975.

                    (6)        That Defendants Shepherd and Dean violated DR 5-103 and
                               DR 5- 104 through their conduct toward Plaintiffs.

J.        Joint and Several Liability

P2057/SI48S/RLLlMB             \\/\8/08/\ef
Plaintiffs' Third Amended Original Petition                                                      Page - 60 of 65-

                                                    2110
          204.       Plaintiffs incorporate the allegations set forth above as if fully restated.

          205.       At all relevant times, Defendants Dean and Shepherd acted jointly as co-counsel for

Plaintiffs and committed wrongs against Plaintiffs as their counsel. Accordingly, Defendants Dean

and Shepherd are jointly and severally responsible to Plaintiffs for any damages resulting from the

wrongs and causes of action set forth above.



                                                      VIII.

                                              PUNITIVE DAMAGES

          206.      Plaintiffs incorporate the allegations set forth above as if fully restated.

          207.      Plaintiffs sue Defendants Dean and Shepherd for punitive damages. The conduct of

Defendants Dean and Shepherd, as set forth above, is legally outrageous and "offends a public sense

of justice." Defendants Dean and Shepherd took their actions of self-dealing, deception, and

misrepresentation, and committed their violations of fiduciary duty with intent to deprive their

clients of property, and thus to harm~their clients. There is strong factual evidence that Defendants

Dean and Shepherd took their actions against their clients with an intent to deceive them and

wrongfully obtain property the recovery of which was the very subject for Defendants Dean and

Shepherd were hired. There is also strong factual evidence that Defendants Dean and Shepherd have

continually and fraudulently concealed these acts of wrongdoing toward their clients. Based upon

the intentional and wrongful nature of Defendant Dean and Defendant Shepherd's action, and based

upon the serious violations of fiduciary duties and breaches of duties of integrity and fidelity

involved in those actions, Defendants Dean and Shepherd are liable to Plaintiffs for punitive

damages.         Defendants Dean and Shepherd subordinated their clients' interests to their own,

improperly retaining their clients' funds, engaging in self-dealing, improperly using client


P2057/S1485/RLLlMB             IIIIS/OS/Ief
Plaintiffs' Third Amended Original Petition                                                         Page - 61 of 65-

                                                   2111
confidences, failing to disclose conflicts of interest, making misrepresentations to achieve those

ends, defrauding their clients, and acting with gross negligence, conscious indifference toward

Plaintiffs, and specific-intent malice toward Plaintiffs.

          208.      Defendant Dean and Shepherd's conduct was thus aggravated by gross negligence,

and fraud. In light of the nature of the wrong, the degree of Defendants' culpability, the situation

and sensibilities ofthe parties, the public sense of justice and propriety affected and the Defendants'

net worth, Plaintiffs are entitled to punitive damages in the maximum amount permissible by law.

          209.      These punitive damages are not limited by any applicable statutory limitation on

damages, including the limitations set forth in Section 41.008(b) of the Texas Civil Practice and

Remedies Code. Plaintiffs affirmatively plead, as factually set forth above, that Defendant Dean

altered a court document in committing their breaches of fiduciary duties to Plaintiffs by improperly

inserting paragraph" 6a," a paragraph representing a conveyance to themselves, in the Partition Deed

filed in January of 1976 for Plaintiffs in the Brooks County property records. This alteration was

made after obtaining the signatures of their clients on the partition deed without any reference to a

conveyance to Dean and Shepherd, and the alteration was made fraudulently and without the consent

of their clients.

          210.      Under Section 41.008(c)(8) of the Texas Civil Practice and Remedies Code, this

alteration exempts Plaintiffs' claims against Dean from the limitations on punitive damages set forth

in Section 41.008(b) of the Code.

                                                      IX.

                                              JURY REQUEST

          211.      Plaintiffs hereby respectfully request a trial of these claims by jury and affirmatively

pleads that all requirements for a jury have been met.

                                                      X.
P2057/S1485/RLLlMB             11/18/08/ler
Plaintiffs' Third Amended Original Petition                                                    Page - 62 of 65-

                                                  2112
                                               PRAYER

          WHEREFORE, Plaintiffs request that Defendants be cited to appear and answer and that on

final trial Plaintiffs have:

1.        For each and every legal cause of action set forth above, actual damages in excess of the
          jurisdictional limits of this Court in recompense for the losses described above;

2.        For each and every legal cause of action set forth above in which punitive damages are
          requested, punitive damages against Dean and Shepherd in an amount equal to the maximum
          amount allowable under Texas law.

3.        An Order of this Court requiring a full accounting of all books, records, revenues, expenses,
          transfers, gifts, trusts and assignments of interest in the Rancho Nuevo and Salado Ranch
          properties as requested above;

4.        A Judgment decreeing a constructive trust on the property described in this petition, with the
          defendant as constructive trustee for the benefit of the Plaintiffs;

5.'       A Judgment ordering Defendants, as constructive trustees, to convey the property described
          in this petition to Plaintiffs;

6.        Declaratory Judgment as requested above;

7.        Attorneys' fees for the Declaratory Judgment action and each cause of action above for
          which such attorneys fees are recoverable;

8.        Pre-judgment interest;

9.        Post-judgment interest on Plaintiffs' judgment; and

10.       Such other and further relief to which Plaintiffs may be justly entitled.

                                                 Respectfully submitted,

                                                 BRODEUR LAW FIRM, PLLC
                                                 17440 N. Dallas Parkway, Suite 262
                                                 Dallas, Texas 75287
                                                 Telephone: (972) 612-1660
                                                 Facsimile: (972) 867-7993




                                                 Mark Brodeur
                                                 State Bar No. 03052020


P2057/S14851RLLlM B             ll/l8t081lef
Plaintiffs' Third Amended Original Petition                                                 Page - 63 of 65-
                                               2113
                                              BARKER, LEON & FANCHER, L.L.P.
                                              Roland L. Leon
                                              State Bar No. 12207400
                                              Tower II - Suite 1200
                                              555 N. Carancahua St.
                                              Corpus Christi, Texas 78478
                                              Telephone: (361) 881-9217
                                              Facsimile: (361) 882-9437

                                              LAW OFFICE OF ALBERTO BYINGTON, JR.
                                              Alberto Byington, Jr.
                                              State BarNo. 24001821
                                              P. O. Box 703
                                              Falfurrias, TX 78355
                                              Telephone: (361) 325-4744
                                              Facsimile: (361) 325-4774

                                              LA W OFFICES JOSEPH MICHAEL GUERRA
                                              J. Michael Guerra
                                              State BarNo. 08581310
                                              P.O. Box 493
                                              Falfurrias, TX, 78355-0493
                                              Telephone: (361) 325-5729
                                              Facsimile: (361) 325-3512

                                              Gary D. Sarles
                                              State Bar No. 17651100
                                              O. Paul Dunagan
                                              State Bar No. 06202700
                                              SARLES & OUIMET, LLP
                                              370 Founders Square
                                              900 Jackson Street
                                              Dallas, TX 75202
                                              Telephone: (214) 573-6300
                                              Facsimile: (214) 573-6306

                                              ATTORNEYS FOR PLAINTIFFS




P2057/S14851RLLlMB             11/18/08/1ef
Plaintiffs' Third Amended Original Petition                                    Page - 64 of 65-
                                              2114
                                                CERTIFICATE OF SERVICE

          I hereby certify that a true and correct copy of the above and foregoing instrument has been

served in accordance with the Texas Rules of Civil Procedure on this the     I ~y of November,
2008, to all counsel of record as follows:


Kyle C. Watson
GOODE CASSEB JONES RIKLIN CHOATE & WATSON
P. O. Box 120480
San Antonio, Texas 78212
   Attorney for Defendants

Burton D. Brillhart
THE BRILLHART LAW FIRM, PLLC
P. O. Box 721174
Dallas, Texas 75372
   Attorney for Defendants

Armando Barrera
BARRERA & BARRERA LAW FIRM
P. O. Box 1339
Alice, Texas 78333
   Attorney for Defendants

R. E. Lopez, Jr.
LOPEZ PETERSON PLLC
Colonnade Square I
101 West Hillside Suite 1
Laredo, Texas 78041
   Attorney for Defendants




P2057/S14851RLLlMB              I 1118/08/lef
Plaintiffs' Third Amended Original Petition                                               Page - 65 of 65-
                                                       2115
                                                                                                           ·..."""'.
                                                                                                            --....


                                           No·cil3~
 JOSE A. GONZALEZ, E'l' AL.                               X                      IN THE DISTRICT COURT OF

 vs •                                                     X
       .
 'l'QMASA G.   FIGUEROA,                                  X
 ET AL.                                                   X                      BROOKS COUNTY,                              ~


                             PETITION FOR, PARTITION
           NOW COMES Jose A. Gonza1ez and wife,'Rafaela G. Gonzalez,
                                                                                                                  r,

 Maria Elena Garcia Garza, Cristelia R. Garcia, a Widow, Gloria Garcia

 Garcia, Oscar Garcia and wife, Viola Garcia, Aurora Garcia AlYardo,

 Guadalupe Garcia, and w'ife, Maria J. Garcia, and Jesus Garcia and w:ife

, Tomasa G. Garcia, of Bx:ooks County, Texas, Plaint'iffs, oomplaininq
                               ,                                                                                       -                                  Mierrq:
 of Tomasa G. FigUeroa, a'widow, Max Figueroa, Jr. 'and Adriana F .......ea '

 of Falfurrias, Brooks County, Texas, hereafter called                                                                          Defen~ants,                       and

 for cause of action would show the COurt:

                                                          I.

          The Plaintif£s and Defendants are the joint owners in fee

 simple and toqether are the S01e owners of the real px:operty shown

 on E%hibit     nAIt   attached hereto and made a' part hereof.                                                                           ~e PlaiIt.tiffs

 jointly, as heirs of casimiro Garcia 'Ramos, and others own at least'

 an undiviqed one-third interest in said property.

                                                          II.
          Th~re   are no liens or encumbranoes thereon known to Plaintiffs

 and no person pther than Plaintiffs and Defendants are interest.ed

 in said   premi.s~s       as owner or                 othe~ise                     so far as is known to

 Pl.aintiffs.                                                                                                                               P2057-S1485
                                                                                                                                                   000352
                                                          IXI.
                                             ..   ~

          nc.-F~T"~Qn"'a   "=-"(\"o   4=............ 'n1~ ...... ~'" "'';'IIO~~'''''eucaY\.·· "' .....   ....'h _~ ................ _.,
                                                                                                              .....                        ..................... n~ ... ·




                           EXHIBIT "A"
                                                  2116
                                                                ,   ...........




Plaintiffs of at least $9,000.00.

    WHEREFORE, Plaintiffs            p~ay      judgment:

         1.    That a partition of said real property be made
aocording to the rights of the respective parties hereto or

if a partition cannot be had without material injury to those
rights then that the said premises be sold and the prooeed~
applied in the fQllowing order:
              a.   To the paymEl'nt of the cost of this action.
              b.   To coat of reference, if any, including attorney's
fees.
              c.   To    ~hg!   several owners in proportion to their respectiye·
interest except hereinafter prayed.
    2.   That an aocountihg be had between Plaintiffs and Defendants
and that there      ~e    paid Plaintiffs from the share of said Defendants
an amount equal to plaintiffs' share of the rents and profits found
by said'accoUnting to be due Plaintiffs.
    3.

the Court, both at l.aw and in


                                      B. J.
                                      At'f;o
                           v          P. O. Box 3 3



                                     ~......u_~   E. Dean,' J
                                      Attorney at Law
                                      P. O. Drawer 150
                                      Alice, Texas 78332

                                      ATTORNEYS FOR PLAINTIFFS




                                     2117
     PROPERTY DESCRIPTION;
     The fol1owing.nescribed property situated in Brooks County, Texas, vi~.:

                                     First Tract

      Share A.. l, containing 2734.55 acres of-land out of the "La Mestenan .
 Grant, originally awarded to Rafael Garcia, as shown in a decree of
 partition in cause No. 321, Jose Garcia Ramos et al., v. Cas~iro
 Garcia Ramos, District Court, Brooks County, Texas, and described by
 metes and bounds thus

                    Beginning at a post marked ,on the easte.rn boundary"·
               line of a surVey of 1273.2 acres for Amancio Garcia, for the
               Southwestern corner of this survey J whence the stone mound
               marking the Southwestern corner 'of the .''La Mestena" grant to
               Rafael Garcia bears S. 16 deg. 42' W. 4819.06 varas; thence
               N. 87 deg. 45' 50" E. 3992.23 varas to a.me.squite post marked
               X, ~or the Southeas tern corner of this survey, intersectirig
               the eastern boundary line of the "La Mestena n grant to Rafael
               G~rcia; thence N. 2 deg. 14' 10" W. with the said eastern
               boundary line of said "La Mestena" grant to Rafael Garcia.,
               at 3537.27 varas a northeastern corner of this tract and
'.             being also the Southeastern corner of Share A-2 of this par-
               tition; thence N. 89 deg. 42' 40" W. ·431.28 varas for a corner,
               also being the Southwest corner of Share A-2 of this partition;
               thence N. 2 deg. 14' 10" W. 431..29 -varas a Northeastern corner'
               of this survey and also being the Northwest corner of Share
               A-2 of ·this partition; thence N. 89 deg. 42' 40" W. with .
               pasture fence, at 2595.71 varas leave Salada Well about 10
               varas south J at 3288.87 varas a mesquite post marked -, for
               the Northwes tern corner of this survey J intersecting the
               eastern boundary line of the said 1273.2 acre survey for .
     .:
               Amancio Garcia; thence S. 1 deg. 34' 50" W. witli the eastern
               boundary line of the said 1273.2 acre survey for Amancio
               Garcia 4141.65 varas to the place of beginning. (Abst. 2, p. 219
                                          Second Tract
                  .                                                         .
            .Share »... 1,. containing 1093.83 acres of land out of "La Mestena y
       Gonzalenan Grant, originally awarded to Rafael Garcia Salinas as shown
     . in a decree of partition in cause No e. 321, Jose Garcia Ramos et a1. v.
       CasUniro Garcia RamOs, District Court, Brooks County, Texas, and des-
       cribed by metes and bounds thus --
                  .. . Beginning at a mesquite post 7 inches in di.anl6ter, inarked
                  -, for the Southeastern corner of this survey, whence the.
             . .' stone mar·ki~ the southeastern comer of the said "La Hastena"
             . grant to Rafael Garcta Sa1inas J b~ars S. 20 deg. 16 1 40"       -
                .E. 9863.38 ~aras;

                           Thence S e 87 deg e 45" 50'" W. at 1100 varas cross a road
               . _from.2 Rancho .._ Nuevo to Leoncitos,.at 1569.2. . varas cross a fence
                    .. _ _ _ _ 3 _
                              ~      ..... .. "". .. •      _ ........




                                        2118
                                                                                           ,   .
                       PROPERTY DESCRIPTION continued;


                                             Thence N. 87 deg. 45' 50" E. at 247.6 varas cross a fence
                                        running in a northerly direction J the North'lestern corner of
                                        Casimiro Garcia's field fence bears S. 0 deg. 40' W",24 varas,
                                        at 1371.65 varas the Northeastern corner of this tract, and
                                        also being a Northwestern corner of Share B-2 of this par-
                                        tition; thence S. 2 deg. 14' 10" E. 272.77 varas for North-
                                        eastern corner of this tract and also being the Southeastern
                                        corner of Share B-2 of this partition;
                                            . Thence S. 2 deg. 14' 10" E. at '1410.23 varas "cross. road
                                        fr~   said Rancho" Nuevo to Leandro Gonzales ' ranch,      at
                                                                                                 1796.23
                                        varas crosS road from said Rancho Nuevo to Tacubaya, at
                                        3527.23 varas the place of beginning. (Abst. 2, p. 220)
                           Said Share A-l and B-1 are described in the partition decree
                           dated Pecember 8, 1927, in Cause No. 321 in the District. court of
                           Brooks County, Texas, in suit styled Jose Garcia Ramos et a1. VB.
                           Casimiro Garcia Ranlos, et a1. recorded in Volume 2, Page 377 of
                           the District court Minutes of Brooks county, Texas 1 said Share A-l
                           b~ing out of the "La Hestena" Grant, Brooks County, ~xaB, and said
                            Share B-1 out of the "La Mestena y Gonzalena" Grant, Brooks County,
                          .Texas; both said Share A-I and B-1 as described in the 1927 partition
                           decree come out of Shares C-1 and C-2 as described in the deed of
                          ~artition dated June 1, 1923, recorded in Volume 8, Pages 28-35 of
                           the Deed Records of Brooks County, Tex~s.
                                                         Third Tract
                                                                              (1) 2 acres of land out of
--_.- .:'"                         S~re   27   set aside to 'Jose G.· Ramos in "La Eticantada and El
                     .'   .'   !     Encino.del l'o~o Grant", J •.M. & L. Chapa. Origi~a1 Grantee., in
                     ""            . caus"e No. 242, J .. R. Scott, Jr. et a1. v. Ce18"0 V. Ramirez; et .
                                     al., District Court, Brooks ·County, lO/11ths of which is in
                                     the name of" Jose Garcia Ramos and l/llth in the name of CasUniro
                                     Garcia Ramos as shown by decree in Estate. of Justo Garcia Ramos,
                                     dec.ease4, Brooks CoUnty Probate Court, and (2) 1 acre of taud,
_ _ _..
         ..                         undiVided, out of the Joee Ma. and Luciano. Chapa Grant, Brooks
                                     County, lO/llths o~ ~ich is in the name of Victoria. G. ~antu
                                    a~d 1/11th of.wh~ch is in the' name of Casimiro Garcia Ramos as
                                    shown by probate proceedings in the estate of Justo Garcia Ramos
~   ...... -   ...   __.....        deoeaseq.                                                            .J



                                                          Fourth Tract
                                    Lot Seven (7).,' Block Three (3), Original '1'Qwnsite, Falfurrias,
                                    Brooks County, Texas.                                     P20S7-8I485
                                                                                                   000355




                                                                2119
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                                                   P2OS7-SI485
                                                     000356

                                      ..      .




                           2120
..   ~.




                                                                 Ali.ce~ T~      78332
                                                                 Deoembe~   16, 1975


          It is hereby agreed by and between HouIal: 1. Dean, Jr •• and B. J.
          Shepher~aa attorneys, and Jos~ A. Gomal.ea and wife, bfaela O.
          Go-ntalez, Karia Elena Garda Gana. C't'ismlia a. Garcia, • w1dow,
          Gloria Garcia Qarcu., Oscar Garcia and w1fe, ViQla G.ucl.a. Aurora
          Gat:ci,a Alv4X'do. Guadalupe Garcut aud v.l.fe, Karla J. Ga't'<:1a, ;md
          Jesus Garcia end wife, 'l'oalasa G. Garcia, as c:lifmts of said at~me)'8~
          that: e'he following will be·the t:otal alIIOUIlt: of attoneys' feea to be
          pa:!,d to Hid e.tt;arneys for t;heir services «.u cause Ho. 2423 1'A the
          Distriet COOTt of BTOob CoUQl:y. Texas. tityJ.ed Jose A. GOQ#lez at: a1.
          ve. 'J:0ma8a G. Figueroa 61; «1.:
          Total attorneys' fees ~S rOOO. 00 to be p$!d in casb and clients ftll:'thex--
          more agree to execute ~ said attorneys a lIIineul deed. <leed1ag to ~aid
          attoroeys one-half (1/2) of the lIIinenl inl;erest acquired by Elach of
          sald plai'Atlffs tn a partitlon of the property in the above entitled
          and nU\llllered CAUse. However, each client as above named sbali' be
          GDtitled to lease his lu41v1dual tl'8ct aud it will not be nec:ellsary
          fOl:' the attol:nIl!lY. to enter into said lease agree1lleut. l1'01: iastanc:e,
          ot! an ordina~ olla-e1gbtb (1/8) royal~ lease attcn:neys portion
          would be l/48th of total produetiQn.

          Clienes ogree to pay aU oosts Wld     'eJ(~nse5   not othendse provided
          for J.n the settlell\Emt Bgreeweut.
          It :I,s furtbe1: ~eed that the $5,OOO.pO 'in cash to be paid .tlo said
          attot:neys shall be paid out of the eash proceeds of the .sEltt;:~e\ll8nt
          in the above .ent.ltle<l and nl.U1Wered cauae ~1l Ho!ner E. Dean, Jr. 1s
          here.by aQtho~ized to 'tIdthhcld _:1.d $.5 ,000..00 mul s further author-
          ued. to 114,. all other ~peuse8 incurred in          5         c~ud!ng
          ap{lt:aiser fee.


           ~




                                                                                            P20S7-81485
                                                                                               000407



                           EXHIBIT "B"
                                         2121
                                                              , t:
    vs;                                                       : I:
, ~ G.,            FIGUEROA, B'l'"AII. '



                        0lI1 "'mtS the'llth laay of ~" ,1915, .c"aiIIe" on' f9r hAr~

    ~        'above :entitled and nU1llbe:ted oause and
                                                    ,
                                                                              c=e 'the l'laint:iffs,' ,Jose '
    A. GonHl.n:and 'If1fe;                ~HI".'        Go'   G&WIaln; .*ria                BlIma 1'iIarc1"a Garzli, .
    cr.1liteU.ll R. Ga:roia, .Il w1i:Iow,: ~tn::la Garoia Garcia, Oscar Ge;roia

    IU!.!1 wUe,: Yiol« <aaro1a, )I.UrOn Ga:l:oii\ Alvw:<lo, ~o.da1upe 'G«~" and-

    vUe," ,MarLa J t'        Ga!r;gj.a,    ana Juus Gd.I:oia ana wi"fe,: ,'l'oIIa8a G. GlU:cla,


    !l'dIIIu« G~ Jj'?-~.Qll', ,8. widow, MAx' l!'~!JU&rQa. "Jr.                         and    ~na 1'.          Guttetl:ea:;

    15. person' Md by tllEitr attoz:he~                       of ~Co%d, .~d aU. part±e&'                     llnDOWioed
· ready        «or tr.1al.     -and _ 11w;y.     ha'V~Sf       been wa'1VB4 by. all:                ~d ~w


· «11' ma~ 'Of' fact: :a~ 'Of' ·i. '4tW!e subat:ttte"4 to 'tlf8 :co.urt...:

                        ~n'               cQiae 'al1 of t1a:i           ~rt;i:ed    bt IU!.!1 tbtolllJh :tlIeU:
         ,                                                                              ,


·   i\ttorna~.s    of' Xeciord and anno\UlOed to                       ~    :court-:t:lvit :tbBy, bad en'tetea

    into. a set;'tJ:ellifmt "OJ! tbe ClispuW.s:                ~              them 1Uld bad ~gx:eS4 t:b"l:it :

    all" 1:lle   '~.ty. @5orj,l)ecI              in \l?lrint:l.:ffa ,. pet:i."Uon              OIl"   ,file beteUt 1fIUI . ,

    0WIled i'a U!ldivided          ~,. .one-"tld:rd ~ l'liQ,nttffs Imll ~.. bf
    DefenalUl.tf:~fl G.: J'~a, ,1Ul4                             tluit :tlW      ProPerty.          Q'OUlCl JH! p.rtJ..tixme<l

    111 k!D4, .tbat :tlXEi       ~          wltI:oh had        ~ QOll~ by.                      Defan4<imt,: ,ToIIIaSfl

    G.' J!'~g\letoa •.over. tb:e :last' ~ ~ :tota.l.i!lg $26;'7.$3';25 pl'Ql1 1.nt.llte8t .

    earned~: ,if an,r, ,aba'll.                         be    'ua~ f.1l:Bt:to. pay «1~ ~eAt~.
    on   au oj! t:mi 'prope~. delio1::1be4 b                       I:'l.a::f.nttffs ,. oJ:'~g1ml1 peU1:.:ton ~ ,

    the      ~;    ,l.Ir.1Si   ,and tImt     :t:;.lI:e l::Jal.a.nae.   'l:e'IIai~i!1V   1SkIilJ: be"    'd1v~ one~
    to l"le1nti:ffa 'lind        ~-~                 to: -Re.~r: .~                           G•.   J!'~gueiOa.   .It:is'

    not' UOCesQ;1:Y !I;cx appo:iJ1t; l:lbBllld;s1ouet. smoe :t:bB pa-rtUe. ave' ~ecl

: Upon a        part~n'.          _       ~ ~9' hEidl':cl ~e :On                                      fI«.i4 ~t :

    ana 'luiv.f.!1g;   eXa;Ja.1uett tlr~   'pui:i.'es      ~t'o           euia   ~          sati.sfied.1:h:Iit: ~. ve '
    of   l.~al ~         'and competent :to: make 'sdd                     ~ti:on ~ ~ 1:Jult ;tQei ,


                                                                                                                               P2OS7-8l48S
                                                                                                                                 000386




                                            EXHIBIT "C"
                                                        2122
,lIame :i8      "fll1r~·· .11i1St':anc1 e~ta'bl8:ur aU: partted u.d in' &ocwaance :
 m;th -ttfe      ev'icleii~,:       it '.is    'o.CciOra~ly            OlWEMIl,               ~                and l>BCUll:D
 by 1:11:0 "Co:urt-; .




                            ..
  ~'     fU8.ltGX.eJ:n, .8.        COW     of' wh"!ch' '1s ~tt:ctohea he"tetia and" 1IIade a put .

  ~. tol" all:                   put'p089 U lF~t'1i' cnme4 one.~ bY tIle 1'1ld.ntUts
  ~cl t'«O-tltil;(le ~ oe~tr:                         !l'oU8. G; ~1'.'t::Ia,                        .iL   widow •.

                                                                     u.

                                                                     11:1.
                                       .                                            ..
                    . ~,:                  ,~a            G.:       JI'~a:,               .1Ih'a'l.l:' "forthWi.'th   and   in any

· B:ven.b   tie:fore' l1ed'eiIIW':r.'.. "3:tr .19".'15;        pe.y -«11: "~t. :taxes                             'OUt D£    tmi .

, $~o:,.'1.S3·"25 'Shl.\ ha:s -0,,' tuW1 an4 .lias wllWte.-d 'froa                                rents; plus- 1111' "inwtes.t :
  ah;6   may have: '~ed              ~             bt-     depioa1t~                     the 'sUlS' m at:)X:t.1:f1oateli -of 4epos.
 -or in:tsrea:t'     be:a'l:~g       «OaOlmtlr ClAd smtl1' 'fllJ:rWllI Plld.nUffs' atto;met

 with     a.   oapy of tb:e noe1pts: 'f;r:OrQ t.tte :tax ool.l'aCttpq                                      ~enc1eB 'a,nd      a
: 00Pl" of tile ':tax -ae);':tU1'Qatea' 'S~g 41l:                               tees. paW                  tb1'o~gh   J.975 on
 all of tlIe        Prop~y.          4Glia.dbed in l'lUnttffs'                               ~~1              pe-t;1;tlon cmd

 as 'ShOwn Oil the 'Fo~. d8sc:lpt-toll at.~Gd hl:i.tetia and" made 'a
                                                      .    .    "
 part: ~ for 1\11' ~W ..                                   NeXt',:     ~t:      'Of add             B\JI1I   8lHi aluO.l:.~ all"

• cost lit' CO't:It't m:iJie:l.'ri and          tlJ:Ij ~in1?19               bltlanoe: sJ:l<i1l:·"t1mA !lEt 'diVided

 oue..;th:!r4 to       fl.!D.n~fs              and ~ to Defen'&mt,: 'l'o'malUt G •. Ji'~ema,                                                  ,
· and tbi      Q~ ~                             :w J>l~ti'ffl$                1JIuil.l: be Po-yabl:e: 't:a, ~ 8.,

 Oea'n, .Jr •., ,~,. ,the 'a.ttXmwt fa'S:' J.Ila1ntUfa,'                                            ,ana     c1eUveJ.'.eQ t:a.    J1bI
 iImaed1atel.',y "-ftc'            ~'t          'Of   sua tau: 1In4                         in IQlY       event 'On -oJ:' 'W:fQ::o .
 ~,'31,'               ,1975.

                                                                     .tV.
                    , ~ :.t.a         il~·         -set:       ~a;We        :to ,"1M:1U't:ottfs "in            ot:b:e ~1~
                                           .                                    ,
 pwpbJ:thm; . aafa:eIQ- G; GQnslil.8lt:..                            li'~.th,: ~J:a; ~ lIJ.V/;\X\lo -                             l~;t:It,:
  .                                                                                             .                     ....
 JfiJEi:ua. Gt&rci.    oJ    1/,6,1:h.,: ,G\ta'aa1~ ~ .." 1/1i~r: .Cd.atliJUa D. •• -GcolA, .
                                                          ..    ,
 Gl.l»:1a ~ and.08"c1a.J:. Go.'2:oia, joj,Qt],.y                               lIS        "tlxe:i:r inte:retit: 1Uf ~" -

 1f6~r: ,QilCI ~{l Bl.~                    Ga.ro1.a       Gi:l:rz~    .(tAe Oldy ch1:14 of Antonia GcU:c.1a

                                                                                                                                          P2057-8I485
                                                                                                                                                  000387




                                                               2123
'beceased, who was never lPUried) - 1/6thJ the surface estate only
ill and to:

        FIRST TRAC'l': 22'2'.30 aores of 'land out of the Northwest corner
        of said Sh~e A-l deocrlbed on th~ proverty descri~tion attaChed
         hereto, aaid 222.30 aores o~ ~and being more oartiou1nrly desoribed
         aa followvr being out of the "~ Mestena· Grant, Abstraot 219,
         Broo~s County, Texas, oriqinally.awarded to Bafael Barcie as &hown
         in a deoree of partition in Cause No. 3n, Joue ~roto. RalUoIl et al.
        v. Co.simiro Garoia Rataos in tbe Distriot Court of Brooks County,
        Texas, Which 122.30 acres of land is more ~art1c~arly deaoriQed
         by meteo and bounds as follows:
        BBaINNING at the Northwest cornar of said,Share A-l a mesquite
         post marked - for the Northwest corner of said Share A-l and the
        ~orthwest corner of this 222.30 acre tract of land I                .
        'l'IJENCB South 1 D 34' 50·" Wes;t' with the West: boundary line of add
        Sbli\re A-l 3111.81426 feet to a point for the Sli corner of this
         21.2.30 aore tr~ct of landl (
        'l'UENCE South 8go 42' 40 w ~ast parallel to ~he North boundary line
        of ,said sn-re A-l 3111.81426 feet'to a yoint for the S2 corner
        of this' 222.30 acre tr~ct of land:
           THENCE North l~ 34' SOP E, parallel to· the West boundary
          'line of said Share A-l 3111.81426 feet to a point on the
           North line of said Share'A-l for'the ~ corner of this tract;
           'l'BEUtCE North 89 0 42' 40· West alonq the North line of said
           Share A-l, 3J.ll.8H26 feet to the PLACr. Of' tIOOnrnINt;.
                '.I'here 1s al.so awarded and 'conveyed to pJ.aintiffs. their

~eirB    and aSSigns,   Ii\   roadway eaSeNent 3Q feet wide out of and          ~lon9

the west line ot said Share A-l from its                 SOutb~e5t   corner to the Southwest
corner O,f said 222.30         IIC):'e trao~.



                                                ,Second Trac,t

     , Share B-1; containing 1093;83 'acres of laud out of ','La Mesten.a' y
Coma-leua" Grant .. qr:i.g1uatly awarded to ~faet Garcia SaUnas as shown
in a d,cree of partitipn in cause No. 321. Jose. Garcia RalllOs et a1. v.
Casimiro Garcia RamOs, District" Court. Brooks COUllty. Texas, and des:"
er1.bed by metes and 'bO'Wlds thus --
                   Beginning at,a lIlEIsquite post 7 incbes in diameter, marked
              -. for the Southeastern corner of thiS survey. whence ebe ,.
              atone 'IIUU:'~'tbe s01:1theastern corne-r of the sai<l "La .lestell~"
              grant to Rafael: Garcia SalinaS, ~ars S. 20 deg. 16' 40"
            E. 9863.38        v~as;

                   1'b.ence S. 67 deg. 45', SO'" W. at 1100 varas cross a rOad
              from Rancho Nuevo to Leonoltos, at 1569.2 varas cross a fence
            ru.m\1ug in northpr1y girection. at 1644.61 varas set a
            mesquite post Ularked ~; for ~he S01:1th"vrcstern corner of this
            aprvey;
                  'l'ilfmee N. 2 'deg. 14'. 10" W. a; 3800 vllrns set a mesquite
            pOBt,5 inches iu diameter. marked ~. for the Nor~hwestern'corn
            of, this a1U"11ey.


                                                                                        P20S7-81485
                                                                                          000388




                                         2124
                        Thonce Ii. 87 deg. 45 ' 50" E. ~t 2/.1.6 Vt~1)·;.::-. Cl:L!!H; 11 ::"1'.( ..
                r\.Ullling i.n aunorthe.:ly cliracticJTI, tho :-in'·i:\·h,C:.1i.':!!·I! Cfl::f"'t' (If
                CSKir.d.ro Gal:'(Jin'fl.field funoc bOal"1l 8 •. 0 rtee', 40' \'1. ~/t '!I.'·~I'; •.
                tit 1371.6~ varllS the NortheelltcJ.'\l c:orON: ,,( this t:;:n'.!I:, 1m"
                alflC! JY.lil\8 it NOl::thl'lQstc;,:n corll':.r of Si'W1.'1'I 1\-2 of th.i.~ pm:-
                tition; thEmct! S, 2 <leg. 14' 10"                E, 272. 77   vnrt:~; fo:: ~,.";;h­
                easte:ol 'C01:Tler of this         ·trl!!:t   Rnd n1:;0 b~ipg the Souti"OTll;lI:(lrn
                co~-ner      of Shara   D~2   of    tn~s   partition;                     ,
                        Thence S. 2 deg. t4' 10" E. at li;lO.23 vcr!;!:;. crans r.oltd
                from said Rancho l{uevo to Leandro Gon:~l!lcs' r"ullC'll. ~t 179~.23
                VEll:6lS oroas road from sai.d .Rancho j,uovo to Tllcuboya, l't
                3527.23 varas the place of beginn:l.n;;. (AUNt. ,2. p. 220)
     S~id Share A-l and B-1 aro deGorih~~ ~n the ~~rtit~on ducree
     aate4 »ecembar a, 1927J in Cause ~. 321 in toe DiRtrict Court at
     8roo'ks County, 'Texas, in suit styled JO$e Gnrcill Rw:Ioa at. ale vs •.
     Cae:Lmiro ~rcia RaP.los, at al. ,roao::ded in Volu'lllP. 2, 1?ag8 377 Q.f .
     the Dil$trict. Cgm;t I1:Lnut.es 0'; Droo;:1l CQnnl:;v, 'tcxa$<' saiit Shar" 1\-1
    )bein9 out of tbe w~ Mestena" Or~r.t, BroOKS coun~y, We~as, an~ said
   IShare B-1 out at the "r.oll "l8sten'a yo Gonv.alena" r.tx"ant, llrooKIJ County,
     'texas~ both said Sh~e A-l an4 B-1 as ~Gscri~~~ in the 19~7 nartition
   • decree C~ out o£ Shares 0-1 and C-~ as de~crLbp.Q in' the de~d of
     partit10n dated June 1, 1923. rQcorde~ in Vo1~,~ R, P~ge8 26-35 of.'
   . tbe Deed   ReOO)'.'d$   of Brooks County I '1e:x~a.


                And'all ~:Ltle theieto 1" d~ve8ted'out ?f the ~fendants herein
.as· .to. the Pltrface estate to the twx>, tl:acts above (lel'lcr:i.bed and vested
. in tlle l>la1nUl'fe n~ea in, thE! vropartions set out above-                  lUI   fully and
 as ooropletely   ~s   if the    Defand~ts         had   e~eautea    a general warranty
 deed conveying     _i~      p;t'O'Perty ;to t.he Plaintiffs nl'med above in the '
 proportions nall\ed above.

                                                   v.
                ~e                                                    ~omasa
                        is Bet aside.to the Defendant,        G.'Pi9ueroa,
                                                                .
 as ~er sale an4 sel)an~ 'p~T?ertY the .l5ur£aoe . estate 'only s~~,oat to the
                                                                                                  .
 rua<lWay easeJlllilnt above <lesaribed in and to the follm'!.ng descxibed
 PX'OJ?erty pi.tuatecl in B;roo}(.s County,         ~ali:

       , 'All of sa14 Share'A~l containing 2134.55 acres of
          lana out of '\:be -La ",estena" Grant, Ab$traot, ~19, Brooks CQ\lJlty,
          ~aa, oriljJ1nally awarded to \'tafaal Garola, "as shown in a c1ecn:ee
          of vartLtlon .in Ca~e lfo. 'U, Jose Gaxob. RanIOs et l1.i. v. caa1mU:o
          ~X'Oi«l. RMlDs 1'A tlle Disuiot CQurt, »roo~s COunty, 'Tmcas, I'I.S deacrllJe
          on the l':Lrst '7,Taot in t.he l;Iro-oerty desoriyt:ion. attached h9reto
          ImI2 llIflQe a vert ~ereoft   LXSS,· SAVE A.."'m EXCln"l' tlle 2::t2.30 IlOna
         of lAa set Bslde to the Plaintifh nmnB4 above hex:einl being
          2512.25 aQl'ea of land net; to DefeniUlnt, 'l'Omasa G, Figueroar
          t'oiet4er with all interest of Plaintiffs he::ein, if any, in
          and to Shua }I.-2 I1S dOlllcn1bed in RaW cause tw. 321 located
         out of the Northeast ao:nar o~.Baid Sna~ A-l, ana all tltle
         of the ~laint1fflll he~.in in the said 2512.25 acres pa~ttcul~ly
         deaciibe<i above, surface elltate only •. ·is divested oUt of Plaintiffs




                                              2125
    . ud ved~ 1n Def.Glidant.,: ~malS&( G..: l1'#-gue:ioa, ,as "fully'and OOII1pletely ,
      as thOu,h «ll:'of 1:bO Pl~tUfs 'het'ein lla"d eXeOuted a, g-eneral W'l.U:ruty
         '(leOd  to ada 251-2"..25           aores partivul.u'ly described                    abo'v~" surface
         elit:e:te: OIily.'

                                  ..                         .
                                                          v..-
                                                          'A'     ,
                                                                                                                    ,

                     l\:ll' oll,',.gaB lUld otuer JIlin"enl.If"in w:u1 unCler                      ~ll:   of tlui
                                                                                               "
~tty            her.et'Qfore       :owned     in   OOJIIIIIOJl' b~        the part:1u$,' p!Ore 'part.twl:arly

des=:Ule4 on the.           p3!'Open:r        descrlpti:oD att:a:ohed her.ei*J               ~d       matle   'Il       part ,

~           smrll'relIiain Undiv14erI wi"th:the: 'ownersb£p                      Wi:~         veSted one-th£rd
in ,th"e'. l'la:inttffs,' ,as 'tltEi1"r 1ntel:"'.es't" 1lIily Ilppear and as 'is 1IIOre                       'put~ady

set   :to~        'in par!lgraph no. IV              alxI:9'e 'and     t~aa 1.n               De'feridant,:,
!l.'o'lIItUlct S; F?-9U~' prov.t.(led howeVer, tlIlit:t:hB 'owu~                           of tlui surface

.estate as 'Set lls5i1e 'above r ,thei:r hcifrs <tUg                     as~'9llB i       ,shu'll' ba.ve. :tb:e '

so-le-   '@(l   eliol\1s;I;ve     ~?-gh-c ~     eXecute. 'all: oil" gas -and min-er'al 'lftses. 'UpQn

tlte l.and tlre 'surface eliitatG 'of wbi:cb 'is owned by tmi puttsa' "Bet: fort1t 'Qbove

and it rill: not 'be nec:ieSs'a"ry for tlt8 Othe,:, parti:eP bereto: to' join

in the     'ex~'timl        of suoh l..seS:r the :tex.'llls of wlUch shall' be 'conf1ded

to: the'd1soret:ton of the 'OWliei of i:l1a 's:tU"faOe,' ,t.mi1r hEirra                                -ana' aSIS~'i ,
Fovided tluit :no l.ease                 ~y    be' eXecuted upan airld pWlliiseB or a;ny part '
                                                                                                                                          "
t:Jrer.eOf cal.l"ipv to!: a royll1ty of let.iu than                      'on~":o~ghth        :On oil r', 9BS '

and other minerAls,. and the bOnus "frOlli                        s~       leaDEn!" and all: "del'ilY 'l:ental.8'

frolII 6UOh l.ea'SeB <md all: TOyalty fl.nd otltEix-: c011Bi"deratton reOel:ved under:

sa:.1d leased 'SlRtl.l' be 'pa.i.d one-:1;hUcl to                     tl:tEi PLttinttffs       0./3   'Bet: :fo~' abeve ,

in t1re    ~It                    'Bat :forth 'above. ~d two-ta.i:rds to the l>efetidlUlt,:

!l'o'maSiI G.
                    .
                  l!'~9'lero«l"        All:"S'UJa$ 'due:the      hlin~al
                                                                                      '
                                                                             owile,:, w:!":tb: :t1t£i     'non~1.~                   .
r~9b~ lila)!' ~ 'paW          or t.mae:re4' to         lIucb ~on-eXecU'Uv~ :r~9'ht: 'OWiia:r                        or 1:0-
tire 'credit 1)£ GU<m ':non-e:Mciu.ti.-ve, :r~9h1i 'OlQ:!.'er in Jl'U'Bt Nat:WMl                               lJaDk, ,
!'alfw1.I:iaw,      ,~eXas,       ,wh1Oh blink '«:ad its: 'BUCOeDIJOXU lI.Xe 'des#-'!Jtl.Iltec1 as tire

bDlihr of t!le non-eXecutive 'r~vht;t'8 'agent: :and smill oont:Utue, 'f.\S tbB

dePo8t~            for thci holCW of the non-eX'eduti.ve                       'r~9'h'C'lJ     uteJ:eB."t ~

all bc:IiaUSi~",~ ;royalt:l:efi payable' 'under arid le<Uiear it :is ~

~            tbat :tbe hOlcleX! of th8 'el(eduti.-ve 'z:~gh~': hi:a hfii.1l:s 'Or af.l~iMt' ,

lIIay pool ;md        un~tb:e          'the 'al:xive 'Cielicribe<l     ~d     on 1fb£ali 'he bOlita 'BUCIta

exeduUve          ):;i9h~ 'OX' an)!' p40rt      :tbIiU:.'edf wi'tll 'otbe::', l«nds ana l>£ntl the                       ~            ,

                                                                                                                                 P20S1..sI48S
                                                                                                                                   000390




                                                       2126
owed by the 'IlQn--exec'ative. r~ght: Wld.et in so doi;lg r in wb!oh .event the

ho"l.Qet of tltEi non-exeeut.ive r~ght: r ,Us heirs 'Or u.ss~-gns,' ,shall: tle se1z9<l

aad poellres'sed of hiS proporttonate'part -as 1161:            ~rth     'cWOve 'of all: -royo.1ty.
                     ,                                                            ,

tlitit JlIa1   be allxwat1:J4 to. IUd.<'1 lMd   or any    part or parts tlterecif as '1& put

of a unit. 'Of dG'V'eIop!IIIelit ud p:wvided futhei that sttOh pooli!l9' and

aniti:Atil:In _y be'lI\a<'le ettbel::' upon a pro-z:ata:         a.cr~qe   basiB      'In'   a
density, 1:IwJ4.s.

                                                VU.
                  Any otltEir ltm<1 owned in COIIIlGOn     be~       Plainti'ffs and

Defendant smill: 'be" 'owned in the         'SMIe   'proporations,' ,tJta:t .is 'One-tld:l:d

to: 1?l«1.utiffs lUld two-thtr<la to: Defendant,:          ~B«      G. lI'igueroa.

                                                VIII.

                  All' vt::bez:'. z;e];J:ef' reques:ted by' uy party.    ~et:o.   not -expreul.y
granted    herem is -awiied.
                                                                . -a..
                  SIGNlilD ltND ORDlmBP EmBlUm t.W:B"         /f .. day    of DeOember, .1975.
                                               ':d;'f~"~'/"
                                              "lR¥. ' . ~~::.",.,   .
                                               c; W. ~striot l1U!19'e :




                                                                                                   P2057-8I48S
                                                                                                      000391




                                              2127
.                      ,




-
.: l-l't<>fEia'Y DESCRIPTION1

    O:be following "asoribed "ropert.y liituated in Broo'k.s County. 'rexas, viz.:

                                      Firs.t 'l'r act'

            Share /1."1, containing 2734.55. acres of· land out of the lilA Mestenal1
    Grant t originally award~d to Rafael Garcia, as shown in a d~ct:ee of
    partition in cause No. 321, Jose Garcia Ramos et a1.., v. C'asim1ro
    Garcia 'Ramos, District Court, 'Brooks County, Texas, and described by
    1I1tJtes and bounds, tbua                                                  '

                          'Beginning at a post marked -, ,on the oastern bwndary
                   line, .of a S1lrvey of 1273.2 acres for t\;:uneio Gorci.a, for the
                  Southwestern corner of thia survey, Whence the stone ~d
                  marld.:llg the Southwestern 'corner of the "La }1estena" grant to
                  Rafael Gaxcia bears S. 16 deg. 42"W. 4319.06 V~r&8; thence
                  N. 87 deg. 45' 50" E. 3992.23 varas \;0 1\ 11Ietlquite post 11I8l:'lte.d
                  X, for the Southeastern cornet of this survey, intarsect1ng
                  tlle eastern boundary line of the "La ~lestena" 'grMt to Rafael
                  Garcia; thence N. 2 deft. 14' 10" W; with the said eastern
                  boullda~ li1l8 of said 'La Mestena" grant to Rafael Garcia,
                  at 3537.27 varas a northeastern corner of this tract and
                  being also tlle Southeastern'~orner of Share A-2 of thb par-
                  tition; thence N. 89 dei!' 421 40" W. '431.28 varas fgr a oorner.
                  also beblg t'he Southwest corner of Share A-2. of this partition;
                  tbence N. 2 deg. 14' 10" W. 431.29·varas a Northes.stern corner
                  of this surve)" and also being the Northwest coraer of Share
                  /1.-2 of this partition; thence N. ,89 de,. 42' 40" W. with
                  pasture fence, at 2595. 7l varas, leave Salada Well about 10
                  varas aouth, at 3,288.87 varas a 1I1esquite post; 'IlWorked -. for
                  the Northwestern corner of this survey, intersecting t\lB
                  east~ bQundary ~1ne of the said'1273.2 acre survey fOr
                . Alnancio Garcia; thence S. t deg. 34' SO" 'W. with the eastern
               , boundary 1.1.ne of the said 1273.2 acre survey for .Ammc1.o
                  Garcia 4141.65. varas to th~ place of beginni~. (Abat. 2, p. 21
                                            S,econd Tract

             Share 'B-1? containing 1093.83 acres of'land out of liLa Hestena y
       ~ale~"       Grant, originally awarded to Rafael Garcia Salinas as shown
       in 'a d~~t'ee of Pflt't~tiOll in eaus,e No., 321, Jose Garcia Ramos at ale v.
       Cas:lmiro Garc1a lW.mos, Dis trict Court. 13rooks County, TaMs, and des-
       ~ibed bY' _tes      and bounds thus --
                        »egtnn1ug at a ~esquite post 7 inches in diam$ter, ~ked
"                -l  for the Southeastern corner of' this survey. wl\ence the        '
                 stOlle lIIUking the southeastern corner .of the- said 'u& ... tona"
                 gt'allt to Rafllel Garci.a·Salinas, b!,flrs S., 20 deg.. 16' 40"
        .'       E. 9863.38 Varasi
                       'l'bence S. a7 deg. 45' 50" 'W. at 11.00 v~as aross a 1lO~ •
                 'from Rancho Nuevo to Leoneitos,: at 1569.2 varas cross a feace
                 1."\lRQ'lni 1'A northerly sirection, at 1644.6l varas aet,a
                 1Ile8qu1.te post marked ~, for the Sout~estern corner S)f this.
                 suner;
.' .
                      'tRenc~ N. 2 !leg. Itt' 10" W: at 3800 vuaa sC!t. a ,1IIe8quite
                 P98t.S tn9hep,in diameter, Warked,;, for tbeNortbwa,t~ cQrne
                 of th1s survey.      '

                 (see ~ttadhed continuation sbe~t.)



                                          EXHXB:tT • A"
                                                                                    P2OS7-81485
                                                                                      000392




                                          2128
..........
    PRoPERTY,DESCRIPtION continuedi


                           'l1letlce N. 137 dcg. 45' 50" E. at 247.6 varaR cross a fone·" '
                    rutln.ing in a uortber1y direction; tlle. NOTthwester.fI corner of
                    Cf1Sinliro Garcia's fie.ld fe.nce bears S. 0 deg. 40' W. 24 Vats:;,
                    at 1371.65 varas the Northeastern corner of tl1itl tract, and
                    also being a Nortm'ostecn corner of Sh~re 'B-2 of tM.fI par-
                 .. titian; thenoe S. 2 dog. 14' 10" E. 272..77 varas for 11orth.
                    eastorn eorner of this tract nod also being the South~stern
                    COL'ner of Share n-2 of this partition;
                      . Thence S. 2 deg. 14' 10" E. at 1410.23 varas cross road
                  from said Rancho Nuevo to Leanuro Go~nleBt rancb,'at 1796.23
                  Varas crOBS road from said Rancho Nuevo to Tacubaya, at
                  3S27.23"vBras the place of beginning. (Abst. 2, p. 220)
      Said Share A-l and B-1 are desorihed in the partition decree
      dated Deoember 8, ~9a7, "in Cause No. 321 1~ the District Court· of
      StOoks Coun~, Texas, in Buit s;tyle<l JOB~ Garci~ Ramos at al. vs •.
      casimiro Garoia ~s, at a~. recorded in Volume 2/ Page 377 at
      tea Distriot CO~ Minutes of. Brooks COunty/ Texas; aaid Share A-I
      beln9 out of the "La Hestena" Grant, Brooks County, Texas, an~ sald
      Shue 15-1     o~t 0';   thE!' "La   }.<;eG~ena   y Gonzalena" (j;r;ant,   HropltS   county,
      ~exaBI both said Share A-l and B-l,aB described in the 1927 partition
      degree oeme out of·~har~8.C-l and c-~ as descri~ed in the deed Qf
      partItion dated JUne l, 1923, recorded In Volume S/ Pages 28-35 Qf
      the Dee4 RecordB of preokr; Co\mty, 'fexaa.                 .
                                      !1'h;'rn 'l'l:'aat
                                                  (1) 2 acres of land Out of
             Share 27 set aside to JoseG. Ramos in "La Encu,!,tlt:,ada nnd El
             1ma1no del 1'ozo Grant", J. M. Co L. Chaps, Original Grantee, in
             cause No. 242, J. R. Scott, Jr. et a1. v. Celso V. Ramireg et
             a1., Distriat Court. ~rooks County, 10/11ths o£ Whicb 1& in
             tbe name of Jose Garcia Ramos and l/llth in ehe 'name of Casimiro
             Garcia Ramos as sbown by decree in Estate.of Jueto Garcia Ramos,
             clecease4. nroo1<:11 County Probate Court," and (2) 1 ac.re of land,
             undivided, out of the JOIie Mo'. and Luciano Chapa Grant, .Brooks
             C~'9.'.' lO/Uths of which is in the name                 of
                                                              Victoria G. ~antu
             and l/llth of which iv in the name of CaSimiro Garcia ~os sa.
             shawn by probate proceedings in tbe estate of Justo Garcia Ramos
             dt:aeased.                                     '                                       ,
                                          Fourth Trnot
             Lot Sewn (7), Block" Th;r:ee (3), Original ~owns-ite·, Falfurrias,
             aroolts county, lI!exas'.




                                                                                                    n0S7-Sl48S
                                                                                                      000393




                                                2129
        o




•




    .   0




        o




                   P20S7-81485
                     000394




            2130
.'   .\




                 Hr .. ~clo ~a baa ftnauY. pa.:ld. of;! tha. reslt. .AJl4 enol.oae6·                         !
          1$ " tIIO'R of Po sh....
          'the ~ .... (If·
                                      "OQ
                               '5n4.'.1
                                              whiQb. hb ~~. ac«>uilt:Gd £or the ·x-ent.. J!'J:CIal
                                              he ~as pald. ino ~g ~t&e,. pl.- ~ $USQ-~O"
          'yOU ~, ~. a total.. sf $C)of5l4·.. ll.,. ~ haft                      4e4uot_     0Qr.~
                                                                                                             I
                                                                                                             I


          oaah at!t:Oney""      fee.    tIL $S,SOO.o.~- and $4"'/ ao't:Ual. Ol1t of J>oe'lt- expeDse.
          of ,,'7-.54 anCt    _4f      ~d1-8 AftwU. out of, packet exp. . . at $131.00-
                                                                                                             r-
          1_"'''- .. net. of .'.'.17 . . be 4!'f'iQea in six pa.m::els w eadl. of tbe
           f_U,J.ee.. x ~o.. a c:beck fo:r: eitcb 6J! ¥OU '.for:?Oter 1/$ oi this                            I·
          $3 ...., ..'". l'nol.'Iilded in '*.t out:, -of poolcot ~. iG. $l'SO .. O() W$ . .14
                                                                                                             I



          'the _~, tale: dltt:A.1l,a of w4ich are shewn                  on   the att.aebed ~et
          lMD:'bK1   un
                     aml HX'. Shepbe-x4 t a out of ~et. expttnfies are sl10wn i.n
          detU1 em thEt sheaf:. Jmttke4 BJS ..

                 i10th       l!r .. Sh~~ and 1: tlumk you vel:Y·much fox- 'tme o~tr
          o~ .~ ~_                   ana. I b$l..1iftlJt '117& have gotten you au of~ct:t'ftl paz:ti.tJ.cm
          aD.ii ~.ioa of J"QlU: l.and ~ 1: 'hope y.QU are '48' ~ w,i.C:h tJMi Q'Clt:-
          CCIIIltJ. _as '1A;t ~.




                                                                                                ,-
                                                                                                ,.



          eel     MX'."&t. J. ~erd
                  :AttGruEiy at. Le.w
                , p.. o. Di':aWr 30'3
                  iu1ce, "'~,cu 183'2

                                                                                                             t


                                                                                                             I.
                                                                                                                 i




                                        EXHIBIT "D"
                                                     2131
                                                                                                        05688000·




                  FILE NO. 217022                       ROY1I.LTY CONVEYANCE

               ~'I TRE S'£A'rB OF 'tEXAS )
                                                                  3126u· ! _:...
                                                                      ,C'                           . /1oo_
                                                                                          LJ: NO. ___ .. 'I
                                                                                                        ?1
                  COO'N'l'Y 0 F JIM WELLS)                                                 Ylll1ti91':.Gt 433
                                  WRBlUSAS      :r:   acquired varioua nonproducins oil, qas and

    [             mineral and royalty interest while               :r   was   ilL     partner in the tim

                  of Lloyd, Lloyd and Dean and later in t:he firtu of Lloyd, toloyd,

                  Dean and Elbey          ~     ee.rller in the firm. of Lloyd and Lloyd, and

                  whereas I 'desire        to   convey all' of such interest                 to RUth Dean 'B.rhlbart;''''
                  "rPlstee;

                                  li'OW, TJUm!:FORE, I, liamor B. Dean, J:r:., indiviDually

                  and as 'rrUstee, for and in con!lidera tion of tho sum of Ten and
                  no/IOO    (~IO.OO)      and other good and valuable conside:r:ation, to me

                  cash in band      ~id     by Ruth Dean       Bril~hart,           Trustee, P. O. Box

                  2;1.56, Alice, 'l'exas 78332, have granted, sold, conveyed, asaigned

                  and delivered and by these presents do                  grant,            sell, convey, assign

..Ir;:-:,~·"
.
    ~'~
           "      and del~ver unto the sad.d Ru.th.Dean lU"ll1hart, 'rruBtee, <41 of'the

                  011, qas' and other l11ineral. i.nterest whioh                    :r:   have or own or have

                  an intdreat in as listed on the attaChed Exhibit A.

                                  'l'O·1IAVE MD 'IO HOLD the above described property and

                  rights unto the qid Ruth DelUl Brillbart, 'tl;ustee. heJ:" heirli,

                  adlll1n:f..str<ltorB,   ex~cutorB      and aSliigns tor ever •              'l'hi~.   allllig'JlllIent

                  ie without     war~anty expresll~d          or implied.

                                   EltF.<!UTlm thia;; the 6th day of. Octob~, 1982.



                                                                        iI17~.)k~'
                                                                   llo&!~~J£:st_

                                                                                                                ividually




                                                                                                                  P20j7~s
                                                                                                                    ~




                                            EXHIBIT "E"
                                                             2132
   ;paqe. 2   10/7/82



                    V;Jt.11.1!)P1Gf   434
    i'HR S'l'ATE OF   !l'm{AS )
    COUNTY 01!' JIM WELLS)




                                                ~d~.
                                                tar;;              Sta te of Texas

                                                 My Commission Expires;      g--3 (- & </




    by BOllIer E.



                                                ~o~~~
                                                My cOll11llission Expires:   Ii". ~ I ~ ~   '>'
                        . PEGGY DAViDsoN
                        • .,~ EqirC': s-:n-84




                                                                                 P2057-8I48S
                                                                                   000623

_-.---0----.----..·- . --·-..

                                            2133
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                                                                                                                         II 0    Box. 150,     All_, ~h! Well. Cc?\Ul~,
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                                                                     EXHIBIT "F"
                                                                                              2134
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                                                                                                                                                       2143
                                                                   Hor.tER E.           DEAN. J"R ..
                                                                             ATTORNE.Y AT LAW
                                                                         poST OFFice PflAWER ISO
                                                                              AUCE. TElU\S 78'332




                                                                         January 6, 1976




                                                                                                                                    .-
                               TO TIm HEIRS OF CASIMIRO RlI.HOS:

                                Enc:.losed is a copy. of the par '::i tion deed. . I Qverlook.ed the
                                mineral deed you made to Mr. ;:iJ.epJlerd arid me ~d have added
                                a reference to· it 'so that t;hl.S partition ~fill be. valiQ. I
                                w1.l1 send you the recording da ta. as soon as I . .gei:. ~t ~ck '                                        "
                               'from the Clerk.                                                                                  .' .
                                                                     .   '


                               As soon as. i get. ~he mqpey frow:. Mr. Garza, I Will m&ce' a'
                               a1.s tribu tion.                                  .,' , .                                                          .
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                                                                                                    Yours   v~ry   .truly, ,

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                                                                   EXHIBIT "H"
                                                                             2144
APPENDIX TAB 6
                                                     CAUSE NO. 08-03-14557-CV

Israel Garcia, et aI.,                                                    §               IN THE DISTRICT COURT
                                                                          §                                        \1              Ob
                                                                                          79 JUDICIAL DIST~JS--r;:;
                                                                                           1h
v.                                                                        §                                            i   .


Dean Partners, Ltd. et aI.,                                               ~               BROOKS   COUN~~f£.~"'~·'SCJr~~
                             PLAINTIFFS' RESPONSE TO DEFENDANTS' B                                         .1iiiY:ff ~
                        SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

           Plaintiffs file the following Response to Defendants' Supplemental Motion for Summary

Judgment filed by Defendants Richard Garcia, BJ. Shepherd, and Dean Partners, Ltd.:

                                                                   I.
                                                               OBJECTION

           Plaintiffs object to Defendants' Supplemental Motion for Summary Judgment and Reply

Brief to the extent that they refer to and/or attach evidence not submitted to the Court at least

twenty-one days prior to the December 1, 2008 hearing on Defendants' Motion for Summary

Judgment, as required by Rule 166a( c) of the Texas Rules of Civil Procedure.

           All of the purported "evidence" shown to the Court at the December 1, 2008 summary

judgment hearing was from the Defendants' Reply Brief, rather than their Motion or their

Supplemental Motion. Defendants' Reply Brief was mailed to Plaintiffs' counsel by certified

mail and was not received by Plaintiffs' counsel until after the December 1st hearing hall

occlllTed. Defendants submitted this evidence to the Court in an attempt to show the Court not

that "the discovery rule does not apply" -- the sole discovery rule argument made in the Motion

(see Defendants' Motion at                    '1'1   5.39 - 5.46) -- but rather to belatedly acknowledge that the

discovery rule does apply but that Plaintiffs "knew or should have known" of their causes of

action more than four years before filing suit.




Plailltitf" Respollse ((J Defellda1l1s' Supplemeutal .tlotioll for Summary Judglllt!1It                         P:.tgl' - 1 of 7

                                                                 2384
           Thus, this new summary judgment ground in the Reply Brief, as well as its impropcrly-

submitted evidence, cannot be considered.                              Contrary to footnote 7 in the Rcply Brief that

"Defendants are not presenting new grounds for summary judgment in this Reply," this nc\\'

argument that Plaintiffs purpOliedly "knew or should have known" was just exactly that-a new

and previously unasselied ground for summary judgment. As such, the Court cannot considcr

this argument. See SOI/ders v. Capitol Area COl/lleil, 930 S.W.2d 905, 911 (Tex. App.-Austin

1996, no writ)(movant may not raise new grounds for summary judgment in reply to

nonmovan1's response)(cited in the Reply Brief at page 3, fn.7); Staller v. Service CO/po Jill 'I,

2006 Tex. App. LEXIS 9130 at *12 (Tex.App. -- San Antonio 2006, no pet.)(following Sanders).

           Defendants' counsel admitted at the outset of the December 151 hearing that their Motion

was a "traditional" motion under Rule 166a( c) and not a "no evidence" motion under Rule

166a(i). At the same hearing, however, Defendants' counsel argued in rebuttal that Plaintiffs had

failed to submit evidence as to when they "known or should have known" of their causes of

action.       No notice was provided to Plaintiffs that they should be prepared to controvert

Defendants' evidence because that evidence was not submitted with Defendants' original Motion

or their Supplemental Motion. At best, Defendants' purpOlied evidence would create a "fact

issue" as to the knowledge of some, though not all, of the Plaintiffs. Moreover, this purported

evidence cannot be considered by the Court, since Defendants submitted it in violation of Rule

I 66a(c).

           In addition, Defendants' rebuttal argument at the hearing regarding the discovery rule

burden fails to acknowledge that under Texas law the discovery rule is an exception to Rulc

166a(i), in that a defendant moving for summary judgment on the affi1111ative defense of

limitations has the burden to conclusively establish that defense by "proving as a matter of law




Plailltiffs' RC'J}(}IISC to Dcfclldallts' SupplcmClllal Motioll for Summary Judgmellt                        Page   ~.2   of -

                                                               2385
that there is no genuine issue of material fact about when the plaintiff discovered, or in the

exercise of reasonable diligence should have discovered the nature of its injury."                       KPMG Peal

Marll'ick v. Harrison COlln(l' HOl/sing Finance Corp., 988 S. W2d 746, 748 (Tex. 1999): see also

Rhone-Potenc. Illc. v. Steel. 997 S.W.2d 217, 223 (Tex. 1999); Woods v. William Af. Mercer.

IIlC., 769 S.W.2d 515, 518 n.2 (Tex. 1988). At a summary judgment hearing, it is not the 11011-

.11l0vant's burden to prove the discovery rule applies; it is the movant'burden to "conclusively

establish that defense." KPA1G Peat Mar1l'ick. 988 S.W.2d at 748.

                                                                               II.
                                                                            RESPONSE

A.                Scope of this Response

                  At oral argument, the Court instructed Plaintiffs to respond to Defendants'

Supplemental Motion regarding the defense of laches. In this Supplemental Response, Plaintiffs

demonstrate to the Court that (i) laches does not and cannot apply to the overwhelming majority

of Plaintiffs' claims in this case, and (ii) Defendants are not entitled to summary judgment on thc

defense of laches for any other claims in the case because Plaintiffs controvel1ed the facts

asserted regarding "knowledge," thus creating a fact issue as to the applicability of the defense.

B.                As a Matter of Law, Laches Does Not Apply to Plaintiffs' Legal Claims and
                  Property Claims

                  Laches is not an appropriate defense in this case for two compelling reasons. First, as

Defendants' Supplemental Motion admits, laches only applies to equitable claims - it does not

apply to legal claims such as fraud or breach of fiduciary duties. Wayne v. A. VA. Vending, Inc ..

52 S.W.3d 412, 415 (Tex. App. - Corpus Christi 2001, pet. denied)(holding that "laches is

peculiarly a\'ailable against the assertion of equitable rights, and may not be invoked to resist the

enforcement of a purely legal right"), quoting Dillard v. Broyles, 633 S.W.2d 636, 645 (Tex.




PlaillTijl's' Resp(}lIse t(} Defelldallts' SupplellleUfal ill(}f;(}11 f(}r SIIIIIIIIOI',I' Judglllellt     Page - -' of -;
                                                                            2386
App. - Corpus Christi 1982, writ refd n.r.e.); Attorney General v. Dourhigny, 702 S.W. 2d 298

(Tex. App. - Houston [1 SI Dist.] 1985, no writ)(holding laches is only available against an

assertion of equitable rights, and not a claim based on a statutory duty); Ex Parle PaYlle, 598

S.W.2d 312, 318 (Tex. Civ. App. - Texarkana 1980, no writ)(defense of laches is not available

for legal claims unless they are seeking purely equitable relief).

      --- -- -    Defendants seek to-avoid this argument- in-their- SupplenleutaLMotion bjLiuconectl.:¥'-------

asserting that Plaintiffs are seeking only "equitable remedies" in their fraud and breach of

fiduciary duty claims.                        This is patently false: the Fourth Amended Original Petition clearly

requests monetary legal damages, both actual and punitive, as well as equitable remedies.

Laches, therefore, does not apply to these legal claims.

                  Second, regarding Plaintiffs' property claims - trespass to try title, suit to quiet title,

and slander of title - Texas law is equally clear: laches does not apply to these claims. Green \'.

j'.   Parrack, 974 S.W.2d 200, 204 (Tex. App. - San Antonio 1998, no pet.)("It is well-settled that

laches is not a defense to a claim of title."), citing Rogers v. Riclllle Ellter., 772 S.W.2d 76, 80

(Tex. 1989)(cited in Defendant's Supplemental Motion at "2.06); Elalld Energy, lllc. r. Rom/ell

Oil & Gas, 111C., 914 S.W.2d 179, 188 (Tex. App. - San Antonio 1995, writ denied); Smoot v.

Woods, 363 S.W.2d 798,802 (Tex. Civ. App. - Fort Worth 1962, writ refd n.Le.).

C.                Summary Judgment Is Not Proper as to Plaintiffs' Equitable Claims

                  There are but a few claims in this case that are equitable, non-property claims to which

laches could legally apply, primarily the actions for constructive trust and accounting.                                  With

respect to these claims, any attempt to apply laches creates disputed factual issues for which

summary judgment is improper.                                     Plaintiffs' affidavits controveli Defendants' asserted laches

facts: those affidavits affim1atively assert that Plaintiffs' did not delay, unreasonably or




Plaillfiffs' RI!.'poIlSI! to Dejelldollts' SlIl'l'll!lIIl!lItol ;HotiolljOl' Sllllllllor), Jlldgllll!lIt
                                                                             2387
otherwise, in assel1ing their rights.                       See Affidavit of TOl11([sita Ramos, attached to Plaintiffs'

Summary Judgment Response as Exhibit 1, at 2-5 (avelTing that she did not know Defendants

had misled her by withholding a key property appraisal, did not know the un-completed

document provided to her was a mineral deed granting Defendants the propel1y, and did not

know of the facts underlying her claims until 2007); Affidavit of Maria Garcia, attached as

Exhibit 2, at 2 5 (averring-the same); Affidavit of Viola Garcia, attached as Exhibit 3, at 2-5

(averring the same); Affidavit of Oscar Garcia, attached as Exhibit 4, at 2-5 (averring the same).

In light of this uncontradicted testimony, the Court may not grant summary judgment that

Plaintiffs engaged in "unreasonable delay."

              Under Texas law, "laches is a question of fact on the evidence and must be determined

by a consideration of all the circumstances of each particular case." Williams v. Ne\'e/Olv, 501

S.W.2d 942, 947 (Tex. Civ. App. - Corpus Christi 1973), rev'd                          011   other grounds, 513 S.W. 2d

535 (1974); Tribble & Stephens Co.                    l'.   RGlvf Contractors LP, 154 S.W. 3d 639. 669 (Tex. App ..-

Houston [141h Dist.] 2004, pet. denied)("whether [Plaintiffs] delay in asserting the condition was

sufficient to constitute laches is ... a fact question"), citing Williams v. Neve/ow. In order for

the C01ll1 to grant summary judgment on the defense of laches as to Plaintiffs' few equitable

claims, it would need to (i) improperly disregard the factual statements in Plaintiffs' affid,nils

completely and (ii) decide a dispute factual issue on which Defendants bore the burden of proof

on this affinnative defense.

               Therefore, Defendants' supplemental motion on the defense of laches should be denied

as it is contrary to existing law and the evidence adduced by Plaintiffs.




I'lllillliffs' Response to D(jendllnts' Snpp/t!mentlll iUotionfor Summllry Judgment                            Page - 5 of 7
                                                               2388
                                                                                             mitted,


                                                                                    Brodeur
                                                                                      r




                                                                              State Bar No. 03052020
                                                                              BRODEUR LAW FIRM, PLLC
                                                                              17440 N. Dallas Parkway, Suite 262
                                                                              Dallas, Texas 75287
                                                                              Telephone: (972) 612-1660
                                                                              Facsimile: (972) 867-7993

                                                                              BARKER, LEON & FANCHER, L.L.P.
                                                                              Roland L. Leon
                                                                              State Bar No. 12207400
                                                                              555 N. Carancahua Street, Suite 1200
                                                                              Corpus Christi, Texas 78478
                                                                              Telephone: (361) 881-9217
                                                                              Facsimile: (361) 882-9437

                                                                              SARLES & OUIMET, LLP
                                                                              Gary D. Sarles
                                                                              State Bar No. 17651100
                                                                              370 Founders Square
                                                                              900 1ackson Street
                                                                              Dallas, TX 75202
                                                                              Telephone: (214) 573-6300
                                                                              Facsimile: (214) 573-6306

                                                                              LAW OFFICE OF ALBERTO BYINCTON, JR.
                                                                              Alberto Byington, lr.
                                                                              State Bar No. 24001821
                                                                              P. O. Box 703
                                                                              Falfurrias, TX 78355
                                                                              Telephone: (361) 325-4744
                                                                              Facsimile: (361) 325-4774

                                                                              LA W OFFICES JOSEPH MICHAEL GUERRA
                                                                              1. Michael Guerra
                                                                              State Bar No. 08581310
                                                                              P.O. Box 493
                                                                              Falfurrias, TX, 78355-0493
                                                                              Telephone: (361) 325-5729
                                                                              Facsimile: (361) 325-3512

                                                                              ATTORNEYS FOR PLAINTIFFS



P/llillfijj"s' Respollse to Dt'felldllJlts' SupplemeJ/tlll Motioll for Summllry JudgmeJ/t                            Page - <> ur -:
                                                                  2389
                                                    CERTIFICATE OF SERVICE


                  I hereby certify that a true and COlTect copy of the above and foregoing instrument has

been served in accordance with the Texas Rules of Civil Procedure on this the 15th day of

December, 2008, to all counsel ofrecord as follows:


Kyle C. Watson                                                                                R. E. Lopez, Jr.
GoonE CASSER JONES RIKI IN CHOATE & WA.TSON                                                   LOPEZ PETERSON PLLC
P. O. Box 120480                                                                              Square I, Colonnade
San Antonio, Texas 78212                                                                      101 West Hillside Suite 1
                                                                                              Laredo, Texas 78041

Burton D. Brillhart
THE BRILLHART LAW FIRl\l, PLLC                                                                                   ERA LA \V FIRM
3300 Reagan Street
Dallas, Texas 75219




I'la;lItijf~'   Respollse Ii} Defelldallts' Supplelllelltal ;1/01;011 for Summary Judgmellt                               Pagl' - 7 uf -;

                                                                    2390

								
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