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091223_Sherbert_Campbell_Appellant_s_Brief

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					            No.01-09-00922-CV



                  IN THE


       FIRST COURT OF APPEALS


             at Houston, Texas



     SHERBERT & CAMPBELL, P.c.,


                 Appellant,


                     v.
      J. STEVEN MOSTYN, ET.AL.,


                 Appellees.




  Appealed from the 215th District Court of


            Harris County, Texas


           APPELLANT'S BRIEF


                               Eric Fryar
                               Texas Bar No. 07495770

                               Fryar Law Firm, P.c.
                               1001 Texas Ave., Suite 1400
                               Tel. 281-715-6396
                               Fax 281-715-6397
                               Email: efryar@fryarlawfirm.com

                               ATTORNEY FOR APPELLANT,
                               SHERBERT & CAMPBELL, P.C.



APPELLANT REQUESTS ORAL ARGUMENT
                                 Noo 01-09-00922-CV


                        SHERBERT & CAMPBELL, P.c.,

                                Appellant,

                                          V.
                         Jo STEVEN MOSTYN, ETo AL.,

                                  Appellees.


                   IDENTITY OF PARTIES AND COUNSEL


APPELLANT
     Sherbert & Campbell, Poc.

      Eric Fryar
      Texas Bar Number 07495770
      Fryar Law Firm, P.c.
      1001 Texas Aveo, Suite 1400
      Houston, Texas 77002
      Tel. 281-715-6396
      Fax 281-715-6397'


APPELLEES
     J. Steven Mostyn

      Kurt B. Arnold
      Texas Bar Number 24036150
      Arnold & Itkin LLP
      1401 McKinney Street, Suite 2550
      Houston, Texas 77010
      Tel. 713-222-3800
      Fax 713-222-3850


      Essex Insurance Company

      Joseph M Heard
      Texas Bar No. 09337500
      Heard & Medack, Poc.
      9494 Southwest Freeway, Suite 700
      Houston, Texas 77074
      Tel. 713-772-6400
      Fax 713-772-6495



                                          - 2­
                               TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                                        2

TABLE OF CONTENTS                                                                      3

INDEX OF AUTHORITIES                                                                   4

STATEMENT OF THE CASE                                                                  7

STATEMENT ON ORAL ARGUMENT                                                             8

ISSUES PRESENTED FOR REVIEW                                                            8

STATEMENT OF FACTS                                                                     9

SUMMARY OF THE ARGUMENT                                                               14

ARGUMENT                                                                              15

   I. STANDARD OF REVIEW                                                              15

   II. THE SHERBERT CAMPBELL & MOSTYN PARTNERSHIP REMAINED IN WINDING UP .15

   III. APPELLANTS CLAIMS ARE NOT TIME-BARRED                                         17

        A. Appellee Must Prove Limitations Conclusively                               18

            1. Four-Year Statute Applies                                              18

           2. Discovery Rule Applies                                                  19

           3. Appellees' Burden ofProof..                                             20

        B. Fact Issues Regarding Notice Preclude Summary Judgment...                  21

            1. Appellee's Must Prove Actual Notice                                    21

           2. No Constructive Notice of Public Records                                23

           3. Appellees Did Not Meet Their Burden                                     24

        C. Limitations Is Tolled on Partnership Accounting                            26

        D. The Claim Against Essex Is Not Time-Barred                                 27

   IV. SUMMARY JUDGMENT CANNOT BE BASED ON MOSTYN'S AFFIRMATIVE DEFENSES

   AND NO-EVIDENCE GROUNDS                                                            28

        A. Summary Judgment Could Not Be Based on Standing or Election ofRemedies     28

        B. The Summary Judgment Record Satisfies the No Evidence Motions              30

            1. Existence of the Contract                                              31

            2. Proper Party                                                           31

            3. Performance of the Contract.                                           31

            4. Breach of the Contract.                                                32

            5. Fiduciary Relationship                                                 32

            6. Breach of Fiduciary Duties                                             32

            7. Injury                                                                 32

            8. Partnership Accounting                                                 32

   V. APPELLANT HAS A VALID CLAIM AGAINST ESSEX                                       33

        A. Essex Owed Duties to Appellant..                                           33

            1. Duties Based on Essex's Notice ofAppellant's Contingent Fee Interest.. 33

            2. Duties Deriving from Mostyn's Fiduciary Relationship                   35

        B. Essex Did Not Discharge Its Duties by Paying Mostyn                        36

        C. Essex Did Not Move for Summary Judgment on the Declaratory Judgment Claim  37

PRAyER                                                                                38

CERTIFICATE OF SERVICE                                                                39

APPENDIX                                                                              40





                                          -3­
                                                        INDEX OF AUTHORITIES



Cases
Bader v. Cox, 701 S.W.2d 677 (Tex. App.-Dallas 1985, writ ref'd n.r.e.)                                                                                            16,26
Baxter v. Williams, 544 S.W.2d 192 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.)                                                                                         17
Bonner v. Henderson, No. 05-99-01 582-CV, 2001 WL 301581, at *6 (Tex. App.--Dallas 2001, pet. denied)
........................................................................................................................................................................ 19
Boulle v. Boulle, 160 S.W.3d 167 (Tex. App.-Dallas 2005, pet. denied)                                                                                                    27
Bush v. Stone, 500 S.W.2d 885 (Tex. Civ. App.-Corpus Christi 1973, writ ref'd n.r.e.)                                                                        21, 22, 23
C.H. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143 (Tex. Civ. App.-Tyler 1965, writ refd
n.r.e. )                                                                                                                                               18, 28, 34, 35
Cadle Co. v. Wilson, 136 S.W.3d 345 (Tex. App.-Austin 2004, no pet.)                                                                                                     22
Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998)                                                                                                                          22
Computer Associates Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996)                                                                                         19,20
Courseview, Inc. v Phillips Petroleum Co., 312 S.W.2d 197 (Tex. 1957)                                                                                  19,21,22,23
Dow Chemical Co. v. Benton, 357 S.W.2d 565 (Tex. 1962)                                                                                                                   33
East Texas Bank & Trust Co. v. Mid-South Contractors, Inc., 451 S.W.2d 782 (Tex. Civ. App.-Tyler, 1970,
no writ)                                                                                                                                                           34, 37
Field Measurement Service, Inc. v.Ives, 609 S.W.2d 615 (Tex. Civ. App.-Corpus Christi 1980, writ ref'd
n.r.e.)                                                                                                                                                                  23
Franklin County v. Tittle, 189 S.W.2d 773 (Tex. Civ. App.-Texarkana 1945, writ ref'd)                                                                                   .22
G. Property Mgt., Ltd. v. Multivest Financial Servo of Texas, Inc., 219 S.W.3d 37 (Tex. App.-San Antonio
2006, no pet)                                                                                                                                                            21
Galveston, H. & S.A. Ry. Co. v. Ginther, 72 S.W. 166 (Tex. 1903)                                                                                                         33
Gaynier v. Ginsberg, 715 S.W.2d 749 (Tex. App.-Dallas 1986, writ ref'd n.r.e.)                                                                                           24
Gibson v. Burkhart, 650 S.W.2d 185 (Tex. App.--Corpus Christi 1983, writ refd n.r.e.)                                                                                    24
Harrison V. Bass Enterp. Prod. Co., 888 S.W.2d 532 (Tex. App.-Corpus Christi 1994, no pet.)                                                                             .20
Hawthorne V. Guenther, 917 S.W.2d 924 (Tex. App.-Houston [1st Dist.] 1996, writ denied)                                                                            17, 18
Hendricks V. Thornton, 973 S.W.2d 348, 372 (Tex. App.--Beaumont 1998, pet. denied)                                                                                  19, 20
Honeycutt V. Billingsley, 992 S.W.2d 570 (Tex. App.-Houston [1st Dist.] 1999, pet. denied)                                                                         33, 34
Horton v. Robinson, 776 S.W.2d 260 (Tex. App.-EI Paso 1989, no writ)                                                                                               .18, 35
In re Fawcett, 55 S.W.3d 214 (Tex. App.-Eastland 2001, pet. denied)                                                                                                      19
Johnson V. Buck, 540 S.W.2d 393 (Tex App.- Corpus Christi 1976, writ ref'd n.r.e.)                                                                                 22, 23
Kelly Associates, Ltd. V. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex. 1984)                                                                                    16, 26
Kinzback Tool CO. V. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942)                                                                                             18,35
Kirby Forest Industries, Inc. V. Dobbs, 743 S.W.2d 348 (Tex. App.-Beaumont 1987, writ denied)                                                                            29
Kline v. O'Quinn, 874 S.W.2d 776 (Tex.App.-Houston [14th Dist.] 1994, writ denied);                                                                                      18
Landers V. State Farm Lloyds, 257 S.W.3d 740 (Tex.App. - Houston [I st Dist.] 2008, no pet.)                                                                             30
Lang V. Lee, 777 S.W.2d !58 (Tex. App.-Dallas 1989, no writ)                                                                                                       21, 23
Law Offices of Windle Turley P.c. V. Ghiasinejad, 109 S.W.3d 68 (Tex. App.-Fort Worth 2003, no pet.).33
Lewis V. Nolan, 105 S.W.3d 185 (Tex. App.--Houston [14th Dist. 2003, pet. denied)                                                                                        24
LMB, Ltd. v. Moreno, 201 S.W.3d 686 (Tex. 2006)                                                                                                                          30
M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617 (Tex. 1995)                                                                                                     16, 18,35
Mack Trucks, Inc. V. Tamez, 206 S.W.3d 572 (Tex. 2006)                                                                                                                   30
Madeksho v. Abraham, Watkins, Nichols & Friend, 12 SW.3d 679 (Tex. App.-Houston [14th Dist.] 2003,
pet. denied)                                                                                                                                                             37
Mathis V. Cactus Drilling Corp., 430 S.W.2d 78 (Tex. Civ. App.-Austin 1968, writ refd n.r.e.)                                                                       17, 18
McHaney v. Hackleman, 347 S.W.2d 822 (Tex. Civ. App.-San Antonio 1961, writ ref'd n.r.e.)                                                                                !0
Mims v. Beall, 810 S.W.2d 876 (Tex. App.-Texarkana 1991, no writ)                                                                                                   18, 35
Mitchell, Gartner & Thompson v. Young, 135 S.W.2d 308 (Tex. Civ. App.--Fort Worth 1939, writ refd) ..33
Oliver v. Oliver, 843 S.W.2d 595 (Tex. App.-EI Paso 1992), rev'd 889 S.W.2d 271 (Tex. 1994)                                                                              22


                                                                                  -4­
Pace v. McEwen, 574 S.W.2d 792 (Tex Civ. App.-El Paso 1978, writ ref'd n.r.e.)                                                                                           22
Rhone-Poulenc, Inc. v. Steel, 997 S.W2d 217 (Tex. 1999)                                                                                                                  20
Richard Gill Co. v. Jackson's Landing Owner's Ass'n, 758 S.W.2d 921 (Tex. App.-Corpus Christi 1988,
writ denied)                                                                                                                                                             21
Roach v. Schaefer, 214 S.W2d 128 (Tex. Civ. App.-Fort Worth 1948, no writ)                                                                                               29
Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76 (Tex. 1989)                                                                                                            20
Rowe v. Rowe, 887 S.W2d 191 (Tex. App.-Fort Worth 1994, writ denied)                                                                                                     21
Slay v. Burnett Trust, 187 S.W2d 394 (Tex. 1945)                                                                                                                          19
Sotelo v. Stewart, 281 S.W3d 76 (Tex. App.-El Paso 2008, pet. denied)                                                                                              25,26
South Texas Lumber Co. v. Concrete Canst. Co., 139 S.W. 913 (Tex. Civ. App.-Galveston 1911, no writ)
........................................................................................................................................................................ 34
State Farm Mut. Auto. Ins. Co. v. Ollis, 754 S.W2d 781 (Tex. App.-El Paso 1988), rev'd 768 S.W2d 722
(Tex. 1989)                                                                                                                                                              33
Tinney v. Team Bank, 819 S. W.2d 560 (Tex. App.-Fort Worth 1991, writ denied)                                                                                      18, 35
Trinity River Auth. v. Badders, 453 S.W2d 304 (Tex. Civ. App.-Houston [14th Dist.] 1970, no writ) 33, 34
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005)                                                                                                              15
Valero Eastex Pipeline Co. v. Jarvis, 990 S. W.2d 852 (Tex. App.-Tyler 1999, writ denied)                                                                                29
Via Net v. TIG Ins. Co., 211 S.W3d 310 (Tex. 2006)                                                                                                                       20
Wichita Royalty Co. v. City Nat'l Bank, 89 S.W2d 394 (Tex. 1935)                                                                                                         22
Willis v. Maverick, 760 S.W2d 642 (Tex. 1988)                                                                                                                             19
Woodruffv. Bryant, 558 S.W2d 535 (Tex. Civ. App.-Corpus Christi 1977, writ refd n.r.e.)                                                                                  .l6
Zimmerman v. First Am. Title Ins. Co., 790 S.W.2d 690 (Tex. App.-Tyler 1990, writ ref'd n.r.e.)                                                                    22, 24




Statutes
Tex. Civ. Prac. & Rem. Code §16.004(a)(5)                                                                                                                           17
Tex. Civ. Prac. & Rem. Code §16.004(a)(3)                                                                                                                           17
Tex. Civ. Prac. & Rem. Code §16.004(c)                                                                                                                      25, 26, 27
Tex. Civ. Prac. Rem. Code §34.001                                                                                                                                   27
TUPA §22(d)                                                                                                                                                         26
TRUPA art. 6132b-4.06(c)                                                                                                                                            26




Rules
Tex.    R. App. P. 39.1                                                                                                                                                  7
Tex.    R. App. P. 38.1                                                                                                                                                  7
Tex.    R. Civ. P. 93                                                                                                                                                   28
Tex.    R. Civ. P. 94                                                                                                                                                   28
Tex.    R. Civ .P. 166a                                                                                                                                                 14
Tex.    R. Civ. P. 166a(i)                                                                                                                                              29




                                                                                   -5­
                                STATEMENT OF THE CASE

         Nature ofthe case. This action arises out of the winding up of a law partnership

between appellee Mostyn and Bill and Adrienne Sherbert, appellant's predecessors in

interest. The dissolution agreement gave Mostyn responsibility for approximately 29

cases in which the Sherberts retained a contingent fee interest-interests the Sherberts

assigned to appellant, their professional corporation. (CR II, 351) Mostyn failed to pay

appellant on most of these cases. Appellee Essex was the insurance company that paid

the judgment in one significant case covered by the dissolution agreement, but Essex

failed to pay appellant's portion despite having been notified of appellant's interest.

Appellant filed suit against appellee Mostyn seeking a final settlement of partnership

accounts and for affirmative relief for breach of fiduciary duties, unjust enrichment,

imposition of a constructive trust, and breach of contract. (CR 203). Appellant filed suit

against appellee Essex Insurance Company ("Essex") for knowing participation in the

breach fiduciary duties and for a declaratory judgment and affirmative relief for Essex's

wrongful payment of appellant's portion of the proceeds from a judgment that was an

asset of the former partnership. (CR 203). Mostyn filed a general denial and asserted the

affirmative defenses of limitations, material breach of the agreement and fraudulent

inducement. (CR 60).1 Essex filed a general denial and various affirmative defenses.

(CR 369).

          Course of proceedings.        Mostyn and Essex each filed motions for summary

judgment. (CR 62, 159). The trial court granted summary judgment as to Essex on

   Mostyn also filed a First Amended Answer (CR374) asserting additional affirmative defenses; however,
   this pleading was filed on September 25, 2009, which was seven days after the Summary Judgment
   Hearing and one day after the Summary Judgment Order in favor of Mostyn had already been signed.

                                                 - 6­
September 23, 2009 (CR 157), and as to Mostyn on September 24, 2009. (CR 377).

Appellant filed its Notice ofAppeal on October 21,2009. (CR 382).



                        STATEMENT ON ORAL ARGUMENT

The Court should grant oral argument for the following reasons:

               a.      Oral   argument    would   give   the   Court   a more     complete

understanding of the facts presented in this appeal. See Tex. R. App. P. 39.1 (c). The facts

in the instant case are complex and may require additional explanation in order to fully

understand the chronology of events.

               b.      Oral argument would allow the Court to better analyze the

complicated legal issues presented in this appeal. See Tex. R. App. P. 39.1(c). The

court's understanding of the complex procedural posture of this case will likely be aided

by counsel's presence at oral argument.

               c.      Oral argument would significantly aid the Court in deciding this

case.   See Tex. R. App. P. 38.1(e), 39.1(d). Oral argument would give a parties an

opportunity to make clear their position on the issues presented.



                         ISSUES PRESENTED FOR REVIEW

Issue l:       The trial court should not have granted summary judgment in favor of
               Appellees because genuine issues of material fact existed as to whether
               Appellant discovered its claim within four years of filing suit.
Issue 2:       The trial court should not have granted summary judgment in favor of
               Mostyn as to the partnership accounting claims because limitations is
               tolled until completion of winding up.




                                            -7­
Issue 3:         The trial court should not have granted summary judgment in favor of
                 Mostyn because he failed to plead the affirmative defenses on which he
                 based his motion and because Mostyn failed to prove these defenses
                 conclusively.
Issue 4:         The trial court should not have granted summary judgment in favor of
                 Mostyn because the no-evidence motions were not properly stated or were
                 satisfied by the summary judgment record.
Issue 5:         The trial court should not have granted summary judgment in favor of
                 Essex because Essex had a duty to pay appellant.
Issue 6:         The trial court should not have granted summary judgment in favor of
                 Essex because its motion did not address Appellant's claim for declaratory
                 judgment.


                                 STATEMENT OF FACTS

                   Winding Up of Sherbert, Campbell & Mostyn Partnership

           The Texas general partnership of Sherbert, Campbell & Mostyn was formed in

1997. (CR 181). It was a law firm, primarily representing plaintiffs in personal injury

cases. The partners voluntarily dissolved the firm effective December 3 I, 1998. (CR 288)

At the time of dissolution, there were three partners: Bill Sherbert, Adrienne Sherbert,

and Steve Mostyn. Essentially all of the partnership's assets were cases in which the

partnership held a contingent fee interest. The dissolution agreement split responsibility

for these cases and divided the contingent fee interests between Bill and Adrienne

Sherbert, on the one hand, and Mostyn, on the other. The partnership then entered a

lengthy period of winding up while the various cases were resolved. (CR 351, 288)

           Later, Mostyn stopped communicating regarding the status of the cases for which

he was the handling attorney, and Adrienne Sherbert initiated Cause No. 2000-1502 I;

Adrienne Sherbert v. J Steve Mostyn; In the 215 th Judicial District Court, Harris County,



                                             -8­
Texas, in March 2000 to enforce the Dissolution Agreement. (CR 182, 184, 351). In

response to this lawsuit, Mostyn voluntarily complied with his reporting and accounting

duties by producing a handwritten accounting of the former-partnership cases for which

he was the "handling attorney." (CR 352). As the record demonstrates, virtually all of the

matters were still marked as "pending" or "in litigation." (CR 306). Because the lawsuit

for an accounting was clearly premature at that stage, and Mr. Mostyn had complied with

his disclosure obligation, Adrienne Sherbert did not pursue the litigation and allowed the

lawsuit to be dismissed for want ofprosecution. 2 (CR 182).

        In May 2000, Adrienne and Bill Sherbert incorporated appellant Sherbert &

Campbell, P.c. (CR 343). Adrienne and Bill Sherbert made this new corporation the

successor-in-interest of their rights to the former partnership assets and arising out of the

dissolution, the winding-up, and the Dissolution Agreement. (CR 351).

        On October 7,2003, appellant made a written request on Mr. Mostyn to complete

the winding up, account for all funds that might be in his possession belonging to

Sherbert & Campbell, P.c., and to finally terminate the partnership. (CR 322, 352). A

similar written request was made on December 5,2006. (CR 325,352).

                                      The Arthur Mayo Case

        The most significant partnership asset (by many orders of magnitude) is the fee

earned on the Arthur Mayo case. The matter of Arthur Mayo v. KoKo Motel, Inc., Cause

No. 97-560912, in the 237th Judicial District Court, Lubbock County, Texas, was a case

filed by the former partnership of Sherbert, Campbell & Mostyn prior to dissolution and


2	 This is a without prejudice dismissal. McHaney v. Hackleman, 347 S.W.2d 822, 826 (Tex. Civ. App.­
   San Antonio 1961, writ ref'd n.r.e.).

                                                 - 9­
in which Sherbert, Campbell & Mostyn had a 40% contingent fee interest. (CR 351). In

the dissolution and winding up of Sherbert, Campbell & Mostyn, Mostyn was charged

with handling of the Mayo case, and Bill and Adrienne Sherbert (the predecessors in

interest to appellant) retained a 40% interest in the partnership's contingent fee and a

100% interest in the reimbursement of expenses advanced by the former partnership. (CR

287, 352) Mostyn was the handling attorney on the Arthur Mayo case. Essex insured the

defendants in that case.

       After the dissolution, appellant had no knowledge or information regarding the

status or progress of the Mayo case, other than occasional copies of notices from the

Court prior to the trial or bits of information heard second-hand. (CR 351). Bill Sherbert

is not listed on the certificates of service Judgment or the Supersedeas Bond filed in the

Mayo case. (CR 97, 134). During and subsequent to trial, Mostyn did not disclose any

information regarding the case to Bill Sherbert, to Adrienne Sherbert or to any agent of

Sherbert & Campbell, P.c. (CR 351).

       On October 3, 2000, Sherbert & Campbell, P.c. filed a Notice of Lien with the

Lubbock County District Clerk asserting an attorneys' lien of its 40% interest in the

contingent fee and on its interest in the advanced expenses. (CR 314, 352). A copy of

this document was delivered by fax to Marc Wojciechowski, who represented defendant

Koko Motel on behalf of its insurers. (CR 314). Final Judgment was rendered in May

2001. (CR 134). Bill Sherbert ultimately heard second-hand that the Mayo case had been

tried to verdict, that Mr. Mayo had been awarded a substantial judgment, and that the case

was on appeal. (CR 351).



                                          - LO­
       In April of 2003, appellant Sherbert & Campbell, P.c., through its counsel,

contacted all counsel involved in the Arthur Mayo appeal to again give notice of its fee

interest. (CR 352). A letter was sent by certified mail to all counsel of record in that

matter, including Mr. Mostyn and Mr. Wojciechowski, and to Kevin Dean Jewell (who

also represented Koko Motel on behalf of its insurers) giving notice of appellant's fee

interest.(CR 317). Appellant's counsel followed up this letter with telephone contact with

Mr. Wojciechowski, who stated that his clients were aware of Appellant's fee interest,

that the case was on appeal, but that his clients would notify Appellant's counsel prior to

payment of any settlement or judgment. (CR 352).

       On December 4, 2003, Essex wrote a check in the amount of $2,775,386.18 to

The Mostyn Law Firm and Arthur Mayo. (CR 90). Approximately $444,062 of that

amount belonged to Plaintiff. However, neither appellant nor its counsel ever received

any notice or communications from anyone regarding the payment or anything else

regarding the Arthur Mayo case. (CR 352). A release of judgment was filed in Lubbock

County on December 24, 2003. (CR 92). Appellant had no actual knowledge of the

payment or of the filing and received no information that would have put it on notice of

these facts. (352-53).

       At the beginning of December 2006, appellant requested its counsel to investigate

the status of the Arthur Mayo case, and it was learned through a Westlaw search that the

appeal had ended in Mayo's favor. (CR 325). At that point, appellant had no information

available to it as to whether the case had settled or whether the judgment had been




                                           - II ­
cOllecleo.   ~ LK,j:)L.   ).   AppellanL   S   l;uunsel LIlen l;alleu   lVll. VVUJl;It:l,;UUWSKI WHU l,;UHIHIlIt:U



that the judgment had been paid but did not remember when. (CR 352).

         On December 5, 2006, appellant made a written demand on Mostyn with respect

to the Mayo case and to any other cases for which he was responsible in the winding up.

(CR 325).       On December 5, 2006, appellant also made a written demand on Mr.

Wojciechowski and Mr. Jewell. (CR 330). No response was received from anyone. (CR

353). On March 16, 2007, Plaintiff sent a follow-up letter to Mr. Jewell requesting to

know the identity of the insurance carrier who paid the judgment or settlement in the

matter. (CR 340). No response was received. (CR 353).

                                           Proceedings in this Action

         Appellant filed this action against Mostyn on February 4, 2008. (CR 2)

Appellant subsequently learned the identity of Essex and joined it as a party on August 8,

2008. (CR 124) Essex filed a motion for summary judgment on August 10, 2009. (CR

62) Mostyn filed a motion for summary judgment on August 28, 2009.                                    (CR 159)

Appellant timely filed its Second Amended Original Petition, asserting an additional

cause of action against Essex, and it Responses to the motions for summary judgment on

September 11,2009. (CR 203,259) A summary judgment hearing was held in the 215 th

Judicial District Court on September 18, 2009. (CR 80) The trial court subsequently

granted summary judgment on all claims against Essex on September 23,2009 (CR 137)

and, by separate order, granted summary judgment on all claims against Mostyn on

September 24,2009. (CR 377)




                                                         - 12 ­
                          SUMMARY OF THE ARGUMENT


         The principal issue addressed in the case below was limitations. The trial court

erred in granting summary judgment. Neither limitations nor any of the other grounds

raised will support a summary judgment. Appellee Mostyn owed appellant fiduciary

duties in the winding up of a partnership. Appellant's claims against Mostyn for breach

of fiduciary duties in the refusal to pay appellant its contingent fee interest in a large

judgment and appellant's claims against Appellee Essex for knowing participation in that

breach are governed by the four-year statute and the discovery rule. Appellant brought

suit four years and two months after Mostyn received the payment. The only evidence

offered to show that appellant should have known of the payment was a release of

judgment filed in Lubbock County. Because appellant is owed fiduciary duties, appellant

is not charged with constructive knowledge of this document. There is no evidence that

appellant received any actual notice, and appellant introduced evidence that it did not

receive notice.

         Separately, appellant sued Mostyn for a partnership accounting, limitations for

which is tolled until the completion of winding up. There is no evidence that winding up

is complete. Appellant also sued Essex for declaratory and equitable relief based on

appellant's rights as a judgment creditor. Limitations for these claims is ten years.

         Mostyn's numerous challenges to standing, claim of election of remedies, and

no-evidence motions will not support a summary judgment. None of the affirmative

defenses were properly pled, and the no-evidence motions were not properly stated, and




                                            - 13 ­
appellant objected and specially excepted. Furthennore, these grounds are either legally

wrong or are satisfied by the record.

         Essex's argument that it satisfied all its duties to appellant by paying Mostyn and

relying on Mostyn to pay appellant is based on an incorrect reading of the dissolution

agreement, is not supported by the record, and is not consistent with the case law. Essex

did not move for summary judgment on the declaratory judgment and equitable claims,

and the trial court's summary judgment on those claims is clearly erroneous.



                                        ARGUMENT

I.	     STANDARD OF REVIEW
         Appellate review of a summary judgment is de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment, an

appellate court takes as true all evidence favorable to the nonmovant, and it indulges

every reasonable inference and resolves any doubts in the nonmovant's favor.             Id.

Summary judgment is only proper when a movant establishes that there is no genuine

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

R. Civ .P.	 166a(c).



II.	    THE SHERBERT CAMPBELL & MOSTYN PARTNERSHIP REMAINED
        IN WINDING UP.
         Mostyn and the Sherberts (the owners and assignors of their interest to

appellant) were partners in Sherbert Campbell & Mostyn. The partnership was dissolved

by agreement effective December 31, 1998. (CR 288) However, the partnership did not



                                           - 14 ­
terminate on that date; rather, the responsibility for the contingent fee cases of the

partnership was split up and the partnership continued for purposes of winding up until

all of its cases were resolved and the assets were distributed to the former partners. As

will be seen below, the fact that the partnership was winding up rather than terminated is

important for two reasons: First, Mostyn continued to owe fiduciary duties to appellant

with respect to the contingent fee cases of the former partnership for which he was

responsible. Second, limitations on partnership accounting issues continued to be tolled

until winding up was complete.

         Dissolution, winding-up, and termination are distinct phases of a partnership's

existence. Kelly Associates, Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex.

1984). Dissolution does not necessarily terminate the partnership business; even if the

business is to be discontinued, the partnership continues to exist, at least for the limited

purpose of winding up. Id. A partnership does not terminate upon dissolution but

continues until the winding up is completed. Bader v. Cox, 701 S.W.2d 677, 682 (Tex.

App.-Dallas 1985, writ ref'd nx.e.). It is only upon termination that the partnership

relationship ceases to exist. [d. at 596-97 (citing Woodru.ffv. Bryant, 558 S.W.2d 535, 539

(Tex. Civ. App.-Corpus Christi 1977, writ refd n.r.e.)).

         Contingent fee interests are partnership assets of a law partnership. Bader v.

Cox, 701 S.W.2d at 682. Dissolution does not change the status of firm assets.               Id.

Rather, former law partners have a duty wind up the partnership business in its contingent

fee cases with reasonable dispatch and to distribute the residue of the assets.   Id.   Partners

owe one another fiduciary duties in the conduct of the winding up of partnership's



                                           - 15 ­
business, and are liable for a breach of that duty. MR. Champion, Inc. v. Mizell, 904

S.W.2d 6177, 618 (Tex. 1995); Hawthorne v. Guenther, 917 S.W.2d 924 (Tex. App.­

Houston [1 st Dist.] 1996, writ denied); Mathis v. Cactus Drilling Corp., 430 S.W.2d 78

(Tex. Civ. App.-Austin 1968, writ refd n.r.e.).        Partners will be deemed to hold

partnership assets in a constructive trust for the benefit of their other partners or the

partnership. Baxter v. Williams, 544 S.W.2d 192, 195-96 (Tex. Civ. App.-Waco 1976,

writ ref'd n.r.e.).

          There is no evidence in the summary judgment record that the winding up of the

partnership ever ceased. Pursuant to the Dissolution Agreement, Mostyn was charged

with the responsibility of winding up the partnership affairs as to approximately 29 cases.

(CR288). Until the cases are all resolved and the money is paid to the former partners, the

process of winding up does not cease. The only accounting Mostyn ever provided showed

that almost all these matters were still pending. (CR306) Mostyn continued to be actively

engaged in the process of winding up with respect to the Arthur Mayo case at least

through December 2003, when he received the partnership's contingent fee payment, and

thereafter has continued to hold that money.



III.    APPELLANT'S CLAIMS ARE NOT TIME-BARRED
        Issue 1: The trial court should not have granted summary judgment
        in favor of Appellees because genuine issues of material fact existed as
        to whether Appellant discovered its claim within four years of filing
        suit.

        Issue 2: The trial court should not have granted summary judgment
        in favor of Mostyn as to the partnership accounting claims because
        limitations is tolled until completion of winding up.


                                           - 16 ­
                  1.       Four-Year Statute Applies.

           Mostyn owed fiduciary duties in the conduct of the winding up of partnership

business and is liable for a breach of those duties. MR. Champion, Inc. v. Mizell, 904

S.W.2d 6177, 618 (Tex. 1995); Hawthorne v. Guenther, 917 S.W.2d 924 (Tex. App.­

Houston [1 sl Dist.] 1996, writ denied); Mathis v. Cactus Drilling Corp., 430 S.W.2d 78

(Tex. Civ. App.-Austin 1968, writ refd n.r.e.). With respect to the Arthur Mayo

judgment, Essex was on notice of appellant's direct interest and had a duty to pay

appellant. See eN. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143, 146 (Tex.

Civ. App.-Tyler 1965, writ refd n.r.e.). In paying Mostyn to the exclusion of appellant,

Essex knowing participated in Mostyn's breach of his fiduciary duties and is thus liable

for breach of fiduciary duty to the same extent as if it was a partner. Kinzback Tool Co. v.

Corbett-Wallace Corp., 160 S.W.2d 509, 574 (Tex. 1942). Third parties are jointly and

severally liable for the breach of fiduciary duties if they knowingly participate in the

breach. See      Kline v. O'Quinn, 874 S.W.2d 776, 786 (Tex.App.-Houston [14th Dist.]

1994, writ denied); Tinney v. Team Bank, 819 S.W.2d 560, 563 (Tex. App.-Fort Worth

1991, writ denied); Mims v. Beall, 810 S.W.2d 876, 880-81 (Tex. App.-Texarkana 1991,

no writ); Horton v. Robinson, 776 S.W.2d 260, 266 (Tex. App.-El Paso 1989, no writ).

Claims for breach of fiduciary duties are governed by the four-year statute of limitations.

Tex. Civ. Prac. & Rem. Code § 16.004(a)(5). Claims for breach of contract and debt are

also governed by the four-year statute. §16.004(a)(3).3
3   While no Texas court has ruled expressly on the limitations period for "knowing participation" in a
    breach of fiduciary duty, the language ofthe case law indicates that the Mostyn's partnership duties are
    extended to Essex and that both parties are jointly and severally Iiable for the same breach. Therefore,
    the limitations analysis should be the same for both claims. Essex did not argue otherwise in the trial

                                                    - 17 ­
                 2.       Discovery Rule Applies.

        Breach of fiduciary duties is subject to the discovery rule. Slay v. Burnett Trust,

187 S.W.2d 377,394 (Tex. 1945); see also In re Fawcett, 55 S.W.3d 214, 219 (Tex. App.

-Eastland 2001, pet. denied) ("The issue in a breach of fiduciary duty case is, thus,

when the plaintiff knew or should have known, with the exercise of reasonable diligence,

of the legal injury giving rise to the right to sue."). Actions between fiduciaries present a

special class of injuries. In Computer Associates Int'!, Inc. v. Altai, Inc., 918 S.W.2d 453,

456 (Tex. 1996), the Texas Supreme Court held that, because fiduciaries have a duty to

disclose upon which the beneficiary is entitled to rely, breach of fiduciary duty is

inherently undiscoverable as a matter of law. "Fiduciaries are presumed to possess

superior knowledge, meaning the injured party, the client, is presumed to possess less

information than the fiduciary. Consequently, in the fiduciary context, it may be said that

the nature of the injury is presumed to be inherently undiscoverable, although a person

owed a fiduciary duty has some responsibility to ascertain when an injury occurs. " !d.

(citing Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197,205

(Tex.1957». See also Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988) ("The special

relationship between an attorney and client further justifies imposition of the discovery

rule .... As a fiduciary, an attorney is obligated to render a full and fair disclosure of facts

material to the client's representation .... [B]reach of the duty to disclose is tantamount to

concealment."). The discovery rule also extends to Essex's joint and several liability for



   court, and all appellate opinions that consider the issue at all have assumed that both the breach and the
   knowing participation in the breach would have the same limitations period. See Hendricks v.
   Thornton, 973 S.W.2d 348, 372 (Tex. App.--Beaumont 1998, pet. denied); Bonner v. Henderson, No.
   05-99-0 I582-CV, 200 I WL 301581, at *6 (Tex. App.--Dallas 200 I, pet. denied).

                                                    - 18 ­
App.--Beaumont 1998, pet. denied).

         While appellant's claims arising from breach of the Dissolution Agreement and

of Essex's duty to pay appellant might be characterized as contractual or quasi­

contractual, the fiduciary duties inherent in the contractual relationship makes the

discovery rule applicable to these claims as well. See Harrison v. Bass Enterp. Prod. Co.,

888 S.W.2d 532, 538 (Tex. App.-Corpus Christi 1994, no pet.). Essex's payment to

Mostyn, and Mostyn's receipt of the money were done secretly, without notice to

Plaintiff/Appellant, and was "inherently undiscoverable and the evidence of injury is

objectively verifiable." Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456

(Tex.1996). The Texas Supreme Court has noted that such breaches of contract would be

subject to the discovery rule. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex.

2006).

               3.     Appellees' Burden of Proof

         Statute of limitations is an affirmative defense. Tex. R. Civ. P. 94. A defendant

moving for summary judgment on the affirmative defense of limitations has the burden to

conclusively establish that defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223

(Tex. 1999). When the plaintiff pleads the discovery rule as an exception to limitations,

the defendant must negate that exception as well. Id. Thus, the defendant must establish

that the limitations period expired before the suit was filed. See Rogers v. Ricane

Enterprises, Inc., 772 S.W.2d 76, 80-81 (Tex. 1989).




                                           - 19 ­
       B.      Fact Issues Regarding Notice Preclude Summary Judgment.

               1.     Appellee's Must Prove Actual Notice.

       The general statement of the discovery rule is that limitations begins to run when

the cause of action is discovered or, by the exercise of reasonable diligence should have

been discovered. Courseview, Inc. v Phillips Petroleum Co., 312 S.W.2d 197, 205 (Tex.

1957). The existence of a fiduciary relationship does not change the rule that diligence in

discovering the breach of fiduciary duty or fraud is required, but the existence of a

fiduciary relationship affects the application of the rule. G. Property Mgt., Ltd. v.

Multivest Financial Servo of Texas, Inc., 219 S.W.3d 37, 48-49 (Tex. App.-San Antonio

2006, no pet.) (citing Courseview, Inc. v. Phillips Petroleum Co., 312 S.W.2d at 205).

When a fiduciary obligation of disclosure is involved, diligence on the part of a injured

party does not require as prompt or as searching an inquiry into the conduct of the other

as when the parties are strangers or are dealing at arm's length. Courseview, Inc. v.

Phillips Petroleum Co., 312 S.W.2d at 205; Rowe v. Rowe, 887 S.W.2d 191,202 (Tex.

App.-Fort Worth 1994, writ denied); Richard Gill Co. v. Jackson:S Landing Owner:S

Ass 'n, 758 S.W.2d 921, 924 (Tex. App.-Corpus Christi 1988, writ denied). A "different

and more lenient standard is applied to one who has been defrauded where a fiduciary

relationship exists between the parties." Bush v. Stone, 500 S.W.2d 885, 890 (Tex. Civ.

App.-Corpus Christi 1973, writ ref'd n.r.e.). The plaintiffs' duty of reasonable diligence

is balanced against the defendants' duty of full disclosure. Lang v. Lee, 777 S.W.2d 158,

164 (Tex. App.-Dallas 1989, no writ). "By entering into fiduciary relations, the parties

consent as a matter of law to have their conduct measured by the standards of the finer

loyalties exacted by courts of equity." Courseview, 312 S.W.2d at 205.

                                           - 20­
       "The mere fact that the defrauded party has the opportunity or power to

investigate the fraud, is not sufficient to charge him with notice of the fraud, so as to start

the running of the statute of limitations." Bush v. Stone, 500 S.W.2d at 890. Furthermore,

while parties are ordinarily charged with knowledge of evidence in the public record, this

is not the case in a fiduciary relationship. See Zimmerman v. First Am. Title Ins. Co., 790

S.W.2d 690, 699-700 (Tex. App.-Tyler 1990, writ ref'd n.r.e.).

         The Plaintiff has no legal duty to investigate at least until it has actual

knowledge of facts sufficient to excite inquiry. Courseview, Inc. v. Phillips Petroleum

Co., 312 S.W.2d at 205; Wichita Royalty Co. v. City Nat'l Bank, 89 S.W.2d 394, 406 (Tex.

1935). Limitations does not start to run for breach of fiduciary duties until the level of

knowledge possessed by the plaintiff approaches actual notice. Oliver v. Oliver, 843

S.W.2d 595, 598 (Tex. App.-El Paso] 992), rev'd on other grounds, 889 S.W.2d 27]

(Tex. ] 994); Pace v. McEwen, 574 S.W.2d 792, 797 (Tex Civ. App.-El Paso 1978, writ

ref'd n.r.e.); Johnson v. Buck, 540 S.W.2d 393,412-13 (Tex App.- Corpus Christi] 976,

writ ref'd n.r.e.); Bush v. Stone, 500 S.W.2d at 890; Franklin County v. Tittle, 189 S.W.2d

773, 775 (Tex. Civ. App.-Texarkana] 945, writ ref'd).

        Summary judgment may be granted on limitations only when reasonable minds

could not differ on the date on which the cause of action accrued. Childs v. Haussecker,

974 S.W.2d 31, 44 (Tex. 1998). "When a plaintiff knew or should have known of an

injury is generally a question of fact." Cadle Co. v. Wilson, 136 S.W.3d 345, 352 (Tex.

App.-Austin 2004, no pet.). This is particularly the case in the context of a fiduciary

duty to make full disclosure. See Courseview, Inc. v Phillips Petroleum Co., 312 S.W.2d



                                             - 21 ­
at 205; Lang v. Lee, 777 S.W.2d at 164; Field Measurement Service, Inc. v. Ives, 609

S.W.2d 615, 619-620 (Tex. Civ. App.-Corpus Christi 1980, writ ref'd n.r.e.); Bush v.

Stone, 500 S.W.2d at 890-91; Johnson v. Buck, 540 S.W.2d at 413.

               2.        No Constructive Notice of Public Records.

         The sole evidence on which Mostyn and Essex base their argument in the trial

court that appellant discovered its claim more than four years before filing suit is the

appellees filed a release of judgment in the Arthur Mayo case with the County Clerk in

Lubbock County on December 24,2003. There is no evidence that appellant was notified

of the filing. There is no evidence that appellant ever learned of the filing. There is no

evidence of any facts or circumstances that would have caused appellant to suspect or

investigate the filing. Rather both Essex and Mostyn claimed that the mere fact that the

release of filed in the public records was sufficient to charge appellant with constructive

notice of the payment.

         While public records are sometimes held to constitute constructive notice for

limitations purposes, this is not true when fiduciary duties are involved. The law does

not charge Appellant with constructive of the release of judgment merely because it was

filed in Lubbock County.      See S. V. v. R.v., 933 S.W.2d I, 34 (Tex. 1996) (fiduciary

relationship excused failure to examine public records); Andretta v. West, 415 S.W.2d

638, 642 (Tex. 1967) (non-participating royalty owners were not charged with

constructive notice of public records on claim against owners of executive rights);

Courseview, Inc. v. Phil/ips Petroleum Co., 312 S.W.2d at 206; (because of fiduciary

relationship, plaintiff could not be charged with lack of diligence for failure to examine



                                           - 22­
public records of land purchases); Lewis v. Nolan, 105 S.W.3d 185, 185 (Tex. App.-­

Houston [14th Dist. 2003, pet. denied) (client not charged with notice of entry of

judgment or of filing of abstract of judgment for purposes of limitations on claim against

his attorney); Zimmerman v. First Am. Title Ins. Co., 790 S.W.2d 690, 699-700 (Tex.

App.-Tyler 1990, writ ref'd n.r.e.) (fiduciary had no constructive notice of filing of

deed); Gaynier v. Ginsberg, 715 S.W.2d 749, 756 (Tex. App.-Dallas 1986, writ ref'd

n.r.e.) (public deed records were not adequate notice to joint venture partner); Gibson v.

Burkhart, 650 S.W.2d 185, 189 (Tex. App.--Corpus Christi 1983, writ refd n.r.e.)

(fiduciary no charged with knowledge of mineral lease in public records).

               3.     Appellees Did Not Meet Their Burden.

       Under dissolution agreement, appellant's right to payment would arise when a

particular case for which Mostyn was responsible had been resolved and Mostyn had

received the money. (CR 287, 351) With respect to any particular matter, limitations for a

breach of fiduciary duty could not begin to run until appellant had receive actual notice

that Mostyn had received the money and did not intend to pay appellant. With respect to

the Arthur Mayo fee, which was paid in December 2003, appellant's claim is not time

barred unless the appellees proved conclusively that appellant discovered the payment

prior to February 4,2004 (2 months after the payment) for Mostyn or prior to August 21,

2004 (8 months after the payment) for Essex.

       There is no evidence in the record of any actual notice to appellant prior to

December 5, 2006. On the contrary, Mostyn produced an interim accounting in 2000

which listed almost all matters under his control as "pending" or "in litigation," including



                                           - 23 ­
specifically the Arthur Mayo case. (CR 305, 352). In October 2000, April 2003, and

October 2003, appellant sent written notice to Mostyn and/or attorneys employed by

Essex asserting its interests and received verbal confirmation from one of the Essex

lawyers that appellant would receive notice of any payment. (CR 314, 317, 322, 351-53).

Appellant received no further information until December 2006. (CR 352) Bill Sherbert

testified:

        I never received any information or notice from any party that payment
        had been made in the Mayo case until early December 2006. I relied on
        Mr. Mostyn's obligation to inform me of this fact under the Dissolution
        Agreement and under his legal duties as a winding up partner. I relied on
        the legal duties of the defense counsel and the carrier not to payout a
        contingent fee funds in which we had an ownership interest after they had
        been notified of that interest. I relied on Mr. Wojciechowski's statement to
        Mr. Fryar that the defendants would notify us. As counsel of record, I
        should have been copied on pleadings and filings in the matter, but I was
        not. I had no actual knowledge, notice, or reason to believe that funds in
        which I had an interest had been paid out until the passage oftime and the
        failure of the defendants and Mr. Mostyn to respond to our demands gave
        me reason to suspect that this might have occurred. Prior to December
        2006, I did not know and did not have any reasonable basis to believe that
        funds in which I had an interest had been paid out. (CR 353)

             In Sotelo v. Stewart, 281 S.W.3d 76, 83 (Tex. App.-EI Paso 2008, pet. denied),

the critical issue in a legal malpractice action was when the plaintiff should have

discovered the existence of a judgment against her. The attorney introduced evidence that

notice of the judgment was sent by certified mail to the plaintiff's house. Id. Plaintiff's

affidavit stated that she never saw it. Id. The fact that the judgment was a public record

did not constitute constructive notice to the plaintiff; in fact, the court of appeals held that

a fact issue as to the plaintiffs actual knowledge precluded summary judgment on




                                             - 24­
limitations. ld. In this case, appellees presented no evidence that that Plaintiff had any

actual notice. Summary judgement was improper on the basis of limitations.

        C.     Limitations Is Tolled on Partnership Accounting.

        The partnership of Sherbert, Campbell & Mostyn is governed by the Texas

Revised Uniform Partnership Act because the partnership was formed after January 1,

1994.   TRUPA art. 6132b-ll.03(a)(I).     The Revised Act expressly provides that the

"accrual of and a time limitation on a right of action for a remedy under this section is

governed by other law."     TRUPA art. 6132b-4.06(c).     The applicable "other law" is

§16.004(c) of the Texas Civil Practice and Remedies Code, which provides that "the

cause of action [for settlement of partnership accounts] accrues on the day that the

dealings in which the parties were interested together cease." The limitations period is

four years. [d. No case law has interpreted the meaning of "the day that the dealings

in which the parties were interested together cease."         However, common sense

would dictate that this day refers to the termination of the partnership, not to its

initial dissolution. Dissolution is the beginning of winding up-the winding up and

liquidation of partnership assets are certaining "dealings" in which the parties are

vitally "interested." See Kelly Associates, Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593,

596 (Tex. 1984); Bader v. Cox, 701 S.W.2d 677, 682 (Tex. App.-Dallas 1985, writ ref'd

n.r.e.). A cause of action for an accounting generally seeks to redress misconduct

committed in the process of winding up the partnership assets and business. It would

make no sense to force a former partner to sue for an accounting before the winding up

and distribution ofthe assets has been completed.



                                           - 2S ­
       However, Mostyn's theory in the trial court was precisely that the cause of

action for partnership accounting accrued on December 31, 1998, when the parties

first split up responsibility for the cases. Therefore, according to Mostyn, appellant

lost the right to seek judicial relief regarding the Arthur Mayo fee on of December

31, 2002,--while that Mayo appeal was still pending and fully a year before Mostyn

received any month and before appellant was due any money.              If Mostyn were

correct, all a partner would have to do in order to keep all the partnership assets is

to delay the winding up beyond the four-year mark after the date of dissolution.

       Mostyn's sole authority is the case of Boulle v. Boul/e, 160 S.W.3d 167 (Tex.

App.-Dallas 2005, pet. denied). While the Boulle court's holding is consistent on

the surface level with the absurd result sought by Mostyn, Boulle is not controlling.

First, the Dallas Court of Appeals makes it crystal clear that its holding is based on a

provision in the old Texas Uniform Partnership Act providing that a cause of action

for a partnership accounting accrues on the date of dissolution. 160 S.W.3d at 176

(relying on TUPA §22(d)). The Revised Act specifically changed this provision to

read that the "accrual of and a time limitation on a right of action for a remedy under

this section is governed by other law." TRUPA art. 6132b-4.06(c). Second, while

Boulle did utilize the 4-year limitations period in §16.004, the court did not address

the effect of the tolling provision in §16.004(c).

       D.      The Claim Against Essex Is Not Time-Barred.

         Because of its contingent fee interest, appellant was a judgment creditor on the

Arthur Mayo judgment, and (as will be developed more fully below), Essex had a duty to


                                           - 26­
pay appellant its portion of the judgment, which Essex violated by payment to Mostyn.

CH. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143, 146 (Tex. Civ. App.­

Tyler 1965, writ refd n.r.e.). Appellant sought a declaratory judgment against Essex that

appellant was not bound by the release of judgment and remains a judgment creditor.

(CR 203) Appellant is permitted to collect on a judgment for a period of 10 years after

rendition. Tex. Civ. Prac. Rem. Code §34.00 1. If payment was made to Mostyn on or

about December 4, 2003, appellant has until December 4, 2013 to collect in its interest in

the Arthur Mayo judgment. Consequently, the statute of limitations on this claim also

had not expired when appellant filed suit.



IV.	   SUMMARY JUDGMENT CANNOT BE BASED ON MOSTYN'S
       AFFIRMATIVE DEFENSES AND NO-EVIDENCE GROUNDS.
       Issue 3: The trial court should not have granted summary judgment
       in favor of Mostyn because he failed to plead the affirmative defenses
       on which he based his motion and because Mostyn failed to prove
       these defenses conclusively.

       Issue 4: The trial court should not have granted summary judgment
       in favor of Mostyn because the no-evidence motions were not properly
       stated or were satisfied by the summary judgment record.

       Other than limitations, the remainder of Mostyn's summary judgment motion was

a mish-mash of overlapping defenses and no-evidence challenges. None of these bases

will support a summary judgment.

       A.	     Summary Judgment Could Not Be Based on Standing or Election of
               Remedies.

       Mostyn claimed in his motion for summary judgment that appellant had no

standing to sue because appellant (i.e. Sherbert & Campbell, P.e.) was never partners


                                             - 27 ­
with Mostyn and because Adrienne Sherbert had elected an inconsistent remedy by filing

suit in 2000. (CR 165). Appellant objected and specially excepted to these affirmative

defenses under Tex. R. Civ. P. 93 and 94 because neither was in the Mostyn's answer that

was on file on the day of the summary judgment hearing or on the day when the summary

judgment was granted; and appellant further objected and specially excepted to the lack

of a verification to support the challenge to capacity. (CR 282-284).

         In any event, Mostyn's evidence that he was not a partner with appellant was

irrelevant. Any species of property is assignable, especially everything which can be

called a debt, and the assignee may recover either in his own name or in that of his

assignor. Roach v. Schaefer, 214 S.W.2d 128, 130 (Tex. Civ. App.-Fort Worth 1948, no

writ); see also Valero Eastex Pipeline Co. v. Jarvis, 990 S.W.2d 852, 855 (Tex. App.­

Tyler 1999, writ denied) (easements, rights in condemnation action); Kirby Forest

Industries, Inc. v. Dobbs, 743 S.W.2d 348,354 (Tex. App.-Beaumont 1987, writ denied)

(contract rights and breach of contract causes of action). Sherbert & Campbell, P.c. was

incorporated after Adrienne Sherbert's lawsuit, was made successor in interest to Bill and

Adrienne Sherbert's rights under the Dissolution Agreement, and served notice of its

contingent fee interest in the Mayo case.           Bill Sherbert's affidavit establishes that

appellant is the successor to the rights and interests that are the basis of its claims. (CR

351 ).

          The summary judgment record also precludes Mostyn's argument that, by filing

suit in 2000 for breach of the Dissolution Agreement, Adrienne Sherbert made an

irrevocable election of remedies. (CR 166). While Adrienne Sherbert did make a claim



                                           - 28 ­
for breach in 2000, that lawsuit did not claim either that the Agreement had been

repudiated or that it was terminated in any way. The declaratory relief sought assistance

from the Court in enforcing the future performance of the contract, not in terminating it.

(CR 184) Moreover, the 2000 lawsuit was dismissed without prejudice. "We think the

law is well settled that the mere institution of suit, which is not prosecuted to judgment,

or the application for a remedy, does not constitute an election of remedies, unless the

litigant has received some benefit or his opponent has suffered some loss or detriment."

McHaney v. Hackleman, 347 S.W.2d 822, 826 (Tex. Civ. App.-San Antonio 1961, writ

ref'd n.r.e.). Furthermore, in response to that lawsuit, Mostyn actually performed his duty

to account for his cases at that time (CR 305); and after the lawsuit, Plaintiff/Appellant

thereafter repeatedly gave notice of its intention that the Dissolution Agreement be

performed. (CR 317-349)

       B.      The Summary Judgment Record Satisfies the No Evidence Motions.

         A no evidence motion for summary judgment must be granted if, after adequate

time for discovery, the moving party asserts there is no evidence of one or more specified

elements of a claim or defense on which the adverse party would have the burden of

proof at trial, and the respondent produces no summary judgment evidence raising a

genuine issue of material fact on these elements. Tex. R. Civ. P. 166a(i); LMB, Ltd. v.

Moreno, 20 I S.W.3d 686, 688 (Tex. 2006). When the movant files its motion in proper

form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that

raises an issue of material fact regarding the elements challenged by the motion. Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Landers v. State Farm Lloyds,



                                           - 29­
257 S.W.3d 740, 744 (Tex.App. - Houston [1st DisL] 2008, no peL). Mostyn stated eight

different no-evidence grounds. Each of these were essentially throw-away one-liners and

not proper motions. (CR 172-74) Appellant objected and specially excepted to all of

Mostyn's no-evidence motions as not being in the proper form or as being satisfied by the

evidence. (CR 284-85)

               1.      Existence of the Contract.

         Mostyn's claim that there is no evidence of a contract is satisfied by the

Dissolution AgreemenL(CR 288) Mostyn's real argument is based on standing, which is

not supported by the pleadings and is established in the record as noted above.

               2.      Proper Party.

         Similarly, Mostyn's claim that there is no evidence appellant is a proper party is

repetition of the standing argument, which a matter on which Mostyn has the burden of

proof, is not supported by the pleadings, and is satisfied by the record as noted above.

               3.      Performance of the Contract.

         Mostyn's claim that there is no evidence that appellant has performed was not

properly stated. There is no indication of what evidence is required to satisfy this burden.

Both the affidavits of Mostyn (CR 181) and Sherbert (CR 351) state that the Dissolution

Agreement was performed: the partnership dissolved; the cases were split; Mostyn was

given control over the Mayo case and the others. Appellant has not duty to prove that it

did not materially breach the agreement, as material breach would be an affirmative

defense, a matter on which Mostyn has the burden of proof.




                                            - 30 ­
               4.     Breach of the Contract

         Mostyn's claim that there is no evidence of breach or injury of the Dissolution

Agreement is disproven by Bill Sherbert's affidavit that, if nothing else, Mostyn secretly

obtained and kept the Arthur Mayo fee. (CR 351).

               5.     Fiduciary Relationship

         Mostyn's claim of no fiduciary relationship is merely a restatement of the

standing argument, which is satisfied by the record as noted above and which was not

supported by the pleadings as noted above. There is ample (and undisputed) evidence in

the record that the parties were partners, that the partnership was dissolved and was in

dissolution, and that appellant succeeded to the partnership interests. (CR 288, 351)

               6.     Breach of Fiduciary Duties

         Mostyn's claim that there is no evidence of a breach of fiduciary duty is

disproven by the evidence that he kept the Arthur Mayo fee. (CR 351)

               7.     Injury

         Mostyn's claim that there is no evidence of injury from the breach is disproven

by the evidence that appellant is without the benefit of the Arthur Mayo fee. (CR 351)

               8.     Partnership Accounting

         Finally, Mostyn's claim that there is no evidence of entitlement to accounting is

another rehash of the standing argument, which is disproven as noted above and which is

not supported by the pleadings as noted above.




                                           - 31 ­
V.	    APPELLANT HAS A VALID CLAIM AGAINST ESSEX
       Issue 5: The trial court should not have granted summary judgment
       in favor of Essex because its conduct did violate duties owed to
       Appellant.

       Issue 6: The trial court should not have granted summary judgment
       in favor of Essex because its motion did not address Appellant's claim
       for declaratory judgment.

       A.	     Essex Owed Duties to Appellant.

               1.	    Duties Based on Essex's Notice ofAppellant's Contingent Fee
                      Interest.

       Texas courts have repeatedly recognized that a contingent fee contract constitutes

an assignment an interest in the lawsuit and creates a justiciable interest in the suit. Law

Offices o/Windle Turley PC v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.-Fort Worth

2003, no pet.); see also Dow Chemical Co. v. Benton, 357 S.W.2d 565, 568 (Tex. 1962);

Galveston, H. & S.A. Ry. Co. v. Ginther, 72 S.W. 166, 167 (Tex. 1903); Honeycutt v.

Billingsley, 992 S.W.2d 570, 584 (Tex. App.-Houston [1 st Dist.] 1999, pet. denied);

Trinity River Auth. v. Badders, 453 S.W.2d 304, 308 (Tex. Civ. App.-Houston [14 tl1 Dist.]

1970, no writ). According to the Texas Supreme Court, a defendant that pays on a claim

in disregard to a known contingent fee interest in the claim is in the same position as

"that of any other person paying a debt to the original creditor, instead of the assignee,

whose rights were known." Galveston, H. & S.A. Ry. Co. v. Ginther, 72 S.W. at 167.

Debtors, with knowledge of the assignment, may not pay money to a third person so as to

deprive the assignee of his right. State Farm Mut. Auto. Ins. Co. v. Ollis, 754 S. W.2d 781,

783 (Tex. App.-EI Paso 1988), rev'd on other grounds, 768 S.W.2d 722 (Tex. 1989);

Mitchell, Gartner & Thompson v. Young, 135 S.W.2d 308, 311 (Tex. Civ. App.-Fort



                                           - 32 ­
Worth 1939, writ refd); Cll Chapman v. Tyler Bank & Trust Company, 396 S.W.2d

143 , 146 (Tex. Civ. App.-Tyler 1965, writ refd n.r.e.).         After notice of a valid

assignment, payment to the assignor or any person other than the assignee, is at the

debtor's peril and does not discharge him from liability to the assignee. East Texas Bank

& Trust Co. v. Mid-South Contractors, Inc., 451 S.W.2d 782, 784 (Tex. Civ. App.-Tyler,

1970, no writ); South Texas Lumber Co. v. Concrete Const. Co., 139 S.W. 913, 914-15

(Tex. Civ. App.-Galveston 1911, no writ).

         In Trinity River Authority v. Badders, 453 S.W.2d at 306-07, a property owner

retained a lawyer on an anticipated condemnation action for a 30% contingent fee, and

the attorney sent a letter to the Trinity River Authority informing them of his

representation and fee interest. Thereafter, the property owner sent the lawyer a letter

terminating his services, and sometime later settled with the Trinity River Authority for

the acquisition of the property, representing to the TRA that the lawyer no longer

represented the property owner. Id. at 307. The attorney was not notified by either party

of the negotiations or settlement between the property owner and the TRA. Id. The

attorney sued the TRA and was awarded a fee equal to 30% of the settlement by the trial

court. Id. The Houston Court ofAppeals upheld this ruling, although it reversed on other

grounds. "When that suit was settled, without Badders' knowledge or consent, Badders

had the option to ratify that settlement and proceed against T.R.A. for his assigned

portion of the damages payable." Id. at 308. "If the defendant in the underlying suit has

notice of the attorney's interest, the defendant is liable to the attorney, even if he has

already paid the client." Honeycutt v. Billingsley, 992 S.W.2d at 584.



                                           - 33 ­
               2.     Duties Deriving from Mostyn's Fiduciary Relationship.

        Mostyn as a partner in control over partnership assets in winding up owed

fiduciary duties with respect to those assets. MR. Champion, Inc. v. Mizell, 904 S.W.2d

6177, 618 (Tex. 1995). In paying the judgment, Essex had a duty to pay Plaintiff its

interest. CB. Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143, 146 (Tex. Civ.

App.-Tyler 1965, writ refd n.r.e.). The overwhelming case law in Texas sets forth only

two elements to establish Essex's liability participation in Mostyn's breach of fiduciary

duties: (l) knowledge of the fiduciary duty owed by Mostyn; (2) participation in the

breach. Kinzback Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 574 (Tex. 1942);

Tinney v. Team Bank, 819 S.W.2d 560, 563 (Tex. App.-Fort Worth 1991, writ denied);

Mims v. Beall, 810 S.W.2d 876, 880-81 (Tex. App.-Texarkana 1991, no writ); Horton v.

Robinson, 776 S.W.2d 260, 266 (Tex. App.-El Paso 1989, no writ). Essex did not argue

that it was ignorant of the fiduciary relationship.   Essex did not submit any evidence

negating its knowledge of the fiduciary relationship, and the evidence in the record

certainly creates a fact issue as to its degree of knowledge. Essex was on notice that the

contingent fee was a partnership interest prior to dissolution, and was on notice that the

fonner partners were making separate claims of contingent fee interests after the

dissolution. Essex was clearly on notice that appellant had a direct interest in the fee and

expected to be paid directly. Therefore, in paying Mostyn to the exclusion of Plaintiff,

Essex knowing participated in Mostyn's breach of his fiduciary duties and is thus liable

for breach of fiduciary duty to the same extent as if it was a partner. Kinzback Tool Co. v.

Corbett-Wallace Corp., 160 S.W.2d 509,574 (Tex. 1942).



                                           - 34­
       B.     Essex Did Not Discharge Its Duties by Paying Mostyn.


       Essex argued in the trial court that it fully discharged its duties by paying Mostyn


and then expecting Mostyn to pay appellant. The record does not support that assertion.

Essex introduced no evidence that it believed that Mostyn was accepting payment on

appellant's behalf or that it was relying on Mostyn to pay appellant. On the contrary, the

record is replete with written notice to Essex that appellant had the right to be paid

separately and demanded to be paid separately. Essex argued that it is entitled to rely on

the terms of the Dissolution Agreement, which would require Mostyn to pay appellant its

interest. However, the Dissolution Agreement does not require payment to Mostyn; nor

does the record support the claim that Essex was aware of the terms of the Dissolution

Agreement or relied on its provisions in any way.

       Certainly, nothing in the Dissolution Agreement explicitly allows Essex to rely on

Mostyn as the pay agent for appellant's contingent fee interest. On the contrary, the plain

language of the agreement states that "Bill and Adrienne Sherbert of Sherbert &

Campbell, LLP will receive 40% of the attorneys fees." Obviously, Mostyn's fiduciary

duties would require him to pay over any funds that he received, but the agreement itself

plainly permits and contemplates a direct payment to appellant. In its motion, Essex

relied on the "indemnification" clause which obligates Mostyn to "indemnify" appellant

for cases on which he is the handling attorney. (CR 72) This language requires Mostyn

is to protect appellant from any liability arising from his handling of the cases.

"Indemnification" does not mean that he is authorized to accept payment on behalf of

appellant, and Essex submitted no authority that the term "indemnification" could have



                                           - 35 ­
such a meaning. In fact, the plain language of the contract is just the opposite, as Mostyn

is also required to indemnify appellant on the cases in which he has a 100% interest-in

other words, cases where Plaintiff will receive nothing. (CR 288)

         Even if the Dissolution Agreement did charge Mostyn as the agent with

authority to receive payments on behalf of appellant, Essex did not establish any basis on

which it could rely on the agreement to absolve itself of liability. Essex submitted no

evidence that it believed that Mostyn was acting as appellant's agent. The undisputed

evidence is that Essex was repeatedly put on notice by appellant that it expected to be

paid directly, not through Mostyn. The law provides that payment to the assignor or any

person other than the assignee is at the debtor's peril and does not discharge him from

liability to the assignee. East Texas Bank & Trust Co. v. Mid-South Contractors, Inc., 451

S.W.2d 782, 784 (Tex. Civ. App.-Tyler, 1970, no writ).

       Co      Essex Did Not Move for Summary Judgment on the Declaratory
               Judgment Claim

         As the Second Amended Petition clarifies, appellant seeks declaratory and

equitable relief against Essex for mispayment of the judgment proceeds. These claims

arise from Essex's duties to appellant as a judgment creditor and are independent of

Mostyn's fiduciary duties.     As the Fourteenth Court of Appeals has held: "After

judgment, attorneys who earn a contingency fee are equitable owners (not mere

claimants) of their portion of the judgment. Due to this property interest, a defendant who

pays a judgment in full to the opposing party without accounting for the contingency-fee

claim will have to pay the fee portion twice." Madeksho v. Abraham, Watkins, Nichols &

Friend, ] 2 SW.3d 679, 689 (Tex. App.-Houston [14 th Dist.] 2003, pet. denied). Essex's


                                           - 36­
Motion for Summary Judgment did not address this claim. It was error for the trial court

to grant summary judgment on a claim for which no motion was made.

                                        PRAYER

        The summary judgment in favor of both Mostyn and Essex should be reversed.

There are factual issues regarding the discovery rule on the claims arising from breach of

fiduciary duties. Limitations on partnership accounting claims is tolled; and limitations

on the equitable and declaratory relief arising from the judgment would be ten years. The

other potential bases for the summary judgment were all either wrong as a matter of law,

were not supported by the summary judgment record, or were not properly pleaded.

Furthermore, Essex's motion did not even address the declaratory and equitable claims.

The trial court should not have granted summary judgment.            Appellant respectfully

requests that this Honorable Court reverse the judgment of the trial court and remand the

case for completion of discovery and eventual trial on the merits.

                                                     Respectfully submitted,




                                           - 37 ­
                           CERTIFICATE OF SERVICE

        I hereby certifY that aU parties were served with a true and correct copy of this

briefvia hand-delivery on December 23,2009, as noted below:

       Kurt B. Arnold

       Texas Bar Number 24036150

       Arnold & Itkin LLP

       1401 McKinney Street, Suite 2550

       Houston, Texas 77010

       Tel. 713-222-3800

       Fax 713-222-3850

       Counsel for Appellee J. Steven Mostyn


       Joseph M Heard

       Texas Bar No. 09337500

       Heard & Medack, P.c.

       9494 Southwest Freeway, Suite 700

       Houston, Texas 77074

       Tel. 713-772-6400

       Fax 713-772-6495

       Counsel for Essex Insurance Company





                                                   Eric Fryar




                                          - 38 ­
TAB A   SUMMARY JUDGMENT ORDERS

TABB    AFFIDAVIT OF BILL SHERBERT

TABC    DISSOLUTION AGREEMENT




                            - 39­
TAB A




 - 40 ­
TABB





 - 41 ­
TABe




 - 42 ­
                                                                                   Flied 09 August 10 P4:58
                                                                                   Loren Jackson • District Clerk
                                                                                   Hams County
                                                                                   ED101J015480865
                                      CAUSE NO. 2008-07105                         By: Sandra ",:,a1pert
                                                                                               1-1 (j - ; ?
      SHERBERT & CAMPBELL, P.C.                   §           IN THE DISTRICT COURT OF                     (1) Ll
          Plaintiff                               §                                                            fT
                                                  §
      VS.                                         §           HARRIS COUNTY, TEXAS
                                                  §
     • J. STEVEN MOSTYN, ET AL,	                  §
             Defendants                           §           215th JUDICIAL      DISTRICT


                           ORDER GRANTING SUMMARY JUDGMENT


             On this day came to be considered Defendant Essex Insurance Company's

     . Traditional and No-Evidence Motions for Summary Judgment Against Plaintiff Sherbert

      & Campbell, P.C. and after considering the Motion, the Plaintiff's response, the

      evidence before the Court, and arguments of counsel, the Court is of the opinion that

      the motion is meritorious and should be granted.

             It is, therefore, ORDERED, ADJUDGED and DECREED that Defendant Essex

      Insurance Company's Traditional and No-Evidence Motions for Summary Judgment

      Against Plaintiff Sherbert & Campbell. P.C. is GRANTED; that Plaintiff Sherbert &

      Campbell, P.C., shall take nothing in this suit; and that all claims asserted by Sherbert &

      Campbell, P.C. against Essex Insurance Company shall be dismissed with prejudice.

             It is further ORDERED, ADJUDGED and DECREED that all taxable costs of

      court shall be taxed by the party incurring the same.
N
'H
o
            This is meant to be a final judgment that disposes of all claims asserted by

      Sherbert & Campbell, P.C. against Essex Insurance Company.
         Signed this ~ay of   ~    ,2009.




                                  JutESIDING




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I, Loren Jackson, District Clerk of Harris
County, Texas certifY that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date
Witness my official hand and seal of office
this October 3, 2009

Certified Document Number: 43412420 Total Pages: 2




1ljl
LOREN JACKSON, DISTRICT CLERK

HARRIS COUNTY, TEXAS





In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                               Cause No. 2008-07105

         Sherbert & Campbell, P.C.,	                   §                IN THE DISTRICT COURT OF
                                                       §
                Plaintiff	                             §
                                                       §

         v.                                            §                HARRIS COUNTY, TEXAS

                                                       §

         J. Steven Mostyn, et al.,	                    §
                                                       §
                Defendants                             §                215 th JUDICIAL DISTRICT

                                                       Order

                The Court has considered J. Steven Mostyn's Motion for Summary Judgment and is

         of the opinion that it should be GRANTED in all respects.

                IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff's claims, in their

         entirety, are dismissed as to J. Steven Mostyn, with prejudice.



         SIGNED this   -U day of ~                                  ,2009


                               SEP 242009




                                               FILED
                                                  loren Jackson
                                                   District Clerk



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I, Loren Jackson, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date
Witness my official hand and seal of office
this October 3, 2009

Certified Document Number: 43427668 Total Pages:




~
LOREN JACKSON, DISTRICT CLERK
HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
   or progress of the Mayo case after the dissolution. Mr. Mostyn did not disclose any
   information regarding the case to me, to Adrienne Sherbert or to any agent of Sherbert &
   Campbell, P.C. I heard that the case was ultimately tried to verdict, that Mr. Mayo was
   awarded a substantial judgment, and that the case was appealed.

5.	 "In early 2000, Adrienne Sherbert filed an action against Mr. Mostyn to compel him to
    account for the cases in his charge in the winding up. In response to that lawsuit, Mr.
    Mostyn provided the accounting attached hereto as Exhibit 2. This document shows that
    the Mayo case was "Pending Litigation."

6.	 "On October 3, 2000, Sherbert & Campbell, P.C. filed a Notice of Lien with the Lubbock
    County District Clerk asserting an attorneys' lien of its 40% interest in the contingent fee
    and on its interest in the advanced expenses. A copy of this document was delivered by
    fax to Marc Wojciechowski, who represented Koko Motel on behalf of its insurers.
    Exhibit 3 is a true and correct copy of that filing.

7.	 "In April of 2003, I instructed my counsel, Eric Fryar, to make contact with the counsel
    involved in the Arthur Mayo case to again give notice of our fee interest. Exhibit 4 is a
    true and correct copy of the notice letter sent by certified mail to all counsel of record in
    that matter, including Mr. Wojciechowski, and to Kevin Dean Jewell (who also
    represented Koko Motel on behalf of its insurers) and the receipt proving delivery. Mr.
    Fryar followed up this letter with telephone contact with Mr. Wojciechowski, who
    informed Mr. Fryar that the defendants were aware of Sherbert & Campbell, P.C.'s fee
    interest, that the case was on appeal, but that the defendants would notify Sherbert &
    Campbell, P.Co's counsel prior to payment of any settlement or judgment.

8.	 "On October 7, 2003, Mr. Fryar sent a letter to Mr. Mostyn requesting that Mr. Mostyn
    account for any of the cases in his charge in the winding up that had terminated and
    seeking a final accounting and termination of the partnership. Exhibit 5 is a true and
    correct copy of that letter.

9.	 "Neither I nor my counsel ever received any further notice or communications from
    anyone regarding the Arthur Mayo case. At the beginning of December 2006, I requested
    Mr. Fryar to investigate the status. Mr. Fryar learned from a Westlaw search that the
    appeal had ended in Mayo's favor. At this point, I had no information available to me as
    to whether the case had settled or whether the judgment had been collected. Mr. Fryar
    then called Mr. Wojciechowski who confirmed that the judgment had been paid but did
    not remember when.

10. "On my behalf, on December 5, 2006, Mr. Fryar made a written demand on Mr Mostyn
    with respect to the Mayo case and to any other cases for which he was responsible in the
    winding up. A true and correct copy is attached as Exhibit 6. No response was received.
    On my behalf, on December 5, 2006, Mr. Fryar made a written demand on Mr.
    Wojciechowski and Mr. Jewell. Exhibit 7 is a true and correct copy of the demand letter
    along with fax confirmations. No response was received.




                                              2
   11. "On March 16, 2007, Mr. Fryar sent a follow-up letter to Mr. Jewell requesting to know
       the identity of the insurance carrier who paid the judgment or settlement in the matter. A
       true and correct copy is attached hereto as Exhibit 8. No response was received.

   12. "On February 4, 2008, we filed the Original Petition in this matter asserting a claim
       against the insurance company that paid the judgment as 'Doe, Inc.' because we had no
       idea or infonnation as to the identity of that company. In June 2008, we filed a First
       Amended Petition substituting Continental Casualty Co. for Doe, Inc. as the defendant
       insurance company because we had learned that this carrier issued the supersedeas bond,
       and we believed that Continental might be the carrier who paid the judgment. Only after
       service on Continental did we learn, through disclosure from Continental, that the carriers
       who had responsibility for the judgment were Lincoln and Essex. These defendants were
       named in a Supplemental Petition filed in August 2008. Lincoln has not existed for many
       years and has never been served or answered. Essex has admitted in discover that it is the
       carrier who paid the judgment.

   13. "I never received any infonnation or notice from any party that payment had been made
       in the Mayo case until early December 2006. I relied on Mr. Mostyn's obligation to
       infonn me of this fact under the Dissolution Agreement and under his legal duties as a
       winding up partner. I relied on the legal duties of the defense counsel and the carrier not
       to payout a contingent fee funds in which we had an ownership interest after they had
       been notified of that interest. I relied on Mr. Wojciechowski's statement to Mr. Fryar
       that the defendants would notify us. As counsel of record, I should have been copied on
       pleadings and filings in the matter, but I was not. I had no actual knowledge, notice, or
       reason to believe that funds in which I had an interest had been paid out until the passage
       of time and the failure of the defendants and Mr. Mostyn to respond to our demands gave
       me reason to suspect that this might have occurred. Prior to December 2006, I did not
       know and did not have any reasonable basis to believe that funds in which I had an
       interest had been paid out."




Sworn to and subscribed before me on ------'-;f-'-+-=-----..L-----­




          :8 * ~*~* * • *:
           · · · ****                       }(f{'~'V   Public in      r the State ofNew Mexico
          :          JOSEPH F. BISA

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                                                                        /7
                                                3
                                     SHERBERT, CAMPBELL & MOSTYN
                                                            ATTORNEYS AT LAW


                                                          LYRIC OrnCE CENTRE

                                                   440 LOUISJANAAT PRAIRIE/SUITE 1500

                                                           HOUSTON, TX. 71002·1635

                                                       (113) 236·81.. FAX ('113) 236·'251
liP. SIIEUI:JlT                                           TOLL FREE 1-a1l·23lS-130a
10111llaOll CAMP.ELL (R.......)
I. sTEVE MOSTYN                                        AGREEMENIAMONG
.~"'7,"La.                        BILL AND APRIENNE SHERBERT AND J. STEVE MOSTYN
                                    OUTLINING THE TERMS OFIHE DISSOLUTION OF
                                         SHERBERT. CAMPBELL AND MOSTYN


               This agreement outlines the terms of the dissolution of SHERBERT~ CAMPBELL &
           MOSTYN (hereinafter "SCM").

                                                       L DMSION OF CASES

                  Bill and Adrienne Sherbert and J. Steve Mostyn agree that the division of the pending SCM
           cases as of December 31, 1998, are as follows:            .

                      1.	         The list of caseS marked as Exhibit "A" to be taken by J. Steve Mostyn whereby Mr.
                                  Mostyn will retain ONE -HUNDRED (100%) percent interest and whereby Bill and
                                  Adrienne Sherbert, SCM, and Sherbert & Campbell, L.L.P. will n:tain no interest,
                                  and upon settlement ofthese cases, all the expenses incurred shall be reimbursed to
 .'	                              the source of expenses, including SCM andlor Mr. Mostyn's new finn;

                      2.	 .       The list of cases marked as Exhibit "B" will remain in place as defined in Addendwn
                                                                                                                 n
                                  "A" of this agreement. Upon settlement of these cases listed in Exhibit "B , all
                                  expenses incurred shall be reimbursed to the source of expenses including SCM,
                                  SHERBERT & CAMPBELL L.L.P., and/or Mr. Mostyn's new firm, upon settlement
                                  of these cases;

                      3.	         The list of cases marked as Exhibit ''C'" will be taken by J. Steve Mostyn with a fee
                                  split of 60/40 percentages whereby upon settlement, the handling attorney, Mr.
                                  Mostyn will retain 60010 of the attorneys fees and Bill and Adrienne Sherbert of
                                  Sherbert & Campbell, LL.P. will received 40% ofthe attorneys fees, except the case
                                  ofMichael Johnson in which upon rettlement, the attorneys fees split will be SO/SO
                                  between the entity of SHERBERT & CAMPBELL, L.L.P., and 1.. Steve Mostyn and
                                  all expenses incurted shall be reimbwsed to the source ofexpenses, including SCM
                                  andlor Mr. Mostyn's new finn, upon settlement ofthese cases;


                                                               Page 1. of 5
            ..,..
            4.	             of
                     The list cases marked as Exhibit "1)" will be taken by Bill and Adrienne Sherbert
                    .ofSherbert & Campbell, LL.P. with a fee split of 60/40 percentages whereby upon
                     settlement, the handling attomeys, Bill and Adrienne Sherbert of Sherbert &
                     Campbell, L.L.P., will retain 60% of the attorneys fees and 1. Steve Mostyn will
                     receive 40% of the attorneys f~ and all expenses inCUl'I'ed shall be mmbursed to
                     the source of expenses, including SCM, and/or SHERBERT & CAMPBEI,.4 LL.P.,
                     upon settlement ofthese cases; .

            s.	     The list of cases marked as Exhibit "E" are cases referred to other fimls by SCM.
                    These cases are to remain in place under the formula set out in the original
                    partnership agreement (as ifthe partnership were not dissolved), and all expenses
                    incurred shall be reimbursed to the source of expenses. which is SCM. upon
                    settlement of these cases. The cases marked as ExluDit UF' are not assets of the
                    partnership. but belong to Bill Sherbert, individually, as agreed (as ifthe partnership
                    were not dissolved);

            6.	     The list of cases marked as Exhibit "0" to be taken by Bill and Adrienne Sherbert
                    and SHERBERT & CAMPBELL, L.L:P., whereby Bill and Adrienne Sherbert and
                    SHERBERT & CAMPBELL, L.L.P., will retain ONE -HUNDRED (100%) percent
                    interest and whereby J. Steve Mostyn nor SCM. will retain no interest, and upon
                    settlement ofthese cases, all the expenses incurred shall be reimbursed to the source
                    ofexpenses. including SCM and/or Bill and Adrienne Sherbert and SHERBERT &
                    CAMPBELL, L.L.P.; and,

            7.	     Those cases that are unknown. undecided or do not appear on Exhibits "A", "B",
                    "e". "D", UEft and ..on shall be negotiated according to the terms ofthe partnership
                    original agreement.


                                          IT. INDEMNIFICAnON

           Mutual Indemnification among the partners, Bill Sherbert. Adrienne Sherbert and J. Steve
.'   Mostyn and SCM and SHERBERT & CAMPBElL, L.L.P., will occur as follows:

            1.	     J. Steve Mostyn indemnifies Bill and Adrienne Sherbert, SCM and SHERBERT &
                    CAMPBELL, L.L.P. on all cases which he retains 1000.10 interest and an other cases
                    in which he bas physical possession as listed in Exhibits ..N' through "))" where Bill
                    and Adrienne Sherbert of SHERBERT & CAMPBELL. L.L.P. wiD retain 40%
                    interest including Michael Johnson which is a SOl50 split; and.




                                                 Page20f 5
                 2.	     Bill and Adrienne Sherbert, SHERBERT & CAMPBELL, LL.P. indemnifies J.
                         Steve Mostyn on all cases in which they retain 100% interest and all other cases in
                         which they have physical possession as listed in Exhibits "A" ~ugb "0" where J.
..-.'	                   Steve Mostyn will retain 40% interest
                 3.	     This indemnification provision applies to those cases that are considered "in place"
                         as defined in Addendum "A."


                                              ill. E & 0 COVERAGE

                The parties agree to exchange copies of SHERBERT & CAMPBELL, L.L.P. 's E&O
         coverage to J. Steve Mostyn and~. Steve Mostyn's E&O coverage to Bill and Adrienne Sherbert of.
         SHERBERT & CAMPBELL, L.L.P.


                                                   IV. CLlENTS

                 Bill and Adrienne Sherbert and J. Steve Mostyn agree that after December 31, 1998, those
         clients who have cases pending as of December 31, 1998, that terminate, and/or decide to switch
         finns from SHERBERT & CAMPBELL, L.L.P. to J. Steve Mostyn or from J. Steve Mostyn to
         SHERBERT & CAMPBELL, L.L.P., will be regarded as cases held in place under the fonnula in
         attorneys fees as described in the partnership original agreement (as if the partnership were not
  ~.     dissolved).


                          V. COMMUNICATIONS FOR SlEVE MOSTYN AND STAFF

          All parties agree that any phone calls and inquires for Steve Mostyn, Patricia Lorraine or Julio
          Rodriguez are to immediately be given our new phone number at (713) 861-6616 and fax (713) 861­
          8084. There should be no inquires into why the call' is being made. The new address is 550
          Westcott Suite 420, Houston, TX 77007 and should be given upon request. Steve Mostyn. Julio
         -Rodriguez and Patricia Lorraines' name shall remain with the answering service for a period of one
          months from this date. The answering service shall be instructed to give our new phone number
          when they receive calls from any person.

                All mail and faxes received that is addressed to J. Steve Mostyn, Julio Rodriguez or Patricia
         Lorraine will be held at the front counter for pick up.


                                                 Vi BANK NOTES
  ~.
                 Bill and Adrienne Sherbert and Mr. Mostyn agreed that the cases. in which Mr. Mostyn
         retains 100% interest as shown in Exhibit "A" and those cases in which Mr. Mostyn has physical


                                                    Page 3 of 5
         "



     possession and Bill and Adrienne Sherbert retain 40% interest in attorneys fees, that have
     outstan~gnotes guaranteed by Bill Sherbert, payoffamounts will be obtained from the bank and




     those said payoffamounts ofthose individual clients will be paid offby Mr. Mostyn no later than
     January 8, 1999. The list of cases to which this provision applies includes:

                    Kathryn Newman
                    Nathan Drummond
                    Roger Morgan (2 notes)
                    Michael Jolmson
                    Rosuara Velazquez

.'
                                           VIT. NUSCELLANEOUS

             Bill and Adrienne Sherbert and J. Steve Mostyn agree to eliminate the second generation
     provision so that Bill and Adrienne Sherbert are not obligated to split fees with J. Steve Mostyn and
     that J. Steve Mostyn is not obligated to split fees 'With Bill and Adrienne Sherbert which are
     considered second generation as provided in the partnership original agreement


             It will be agreed to by the parties which hard assets i.e. office furniture, office equipment.
     computers, and office supplies that Mr. Mostyn will take, and the costs ofthese said hard assets will
     be calculated by Bill and Adrienne Sherbert and Mr. Mostyn's accountants when detennining the
     total assets and liabilities for the partnership.

             In all cases described herein that Bill and Adrienne Sherbert of SHERBERT & CAMPBELL
     L.t.P., and J. Steve Mostyn have shared interests, the handling attorney agrees to provided a
     quarterly update to the non-handling attorneys who retain an interest in the cases.

              Bill and Adrienne Sherbert and 1. Steve Mostyn agree to notify each other of necessary
     appearance dates concerning all cases considered in place as defined in Addendum "A" in which the
     parties have a shared interest, including but not limited to. mediation dates, court appearances, and
     trial settings.


                                              VIII. EXPENSES




                                                 Page 40f 5
 ·
4· "
                                                                                                                   '.


             All expenses reimbursed to SCM in the above p-uagraphs shall be paid out according to 'the
       fonnulvet out in the }'J3.l-tnership oliginal agreement (as if the partnership were not dissolved).
                               .'             .       .                                         .    .

                                                                                                    of
               The llarties agreed to the above terms ancl"conditions' of the dissolution the partnership,
       including but not limited to. th~ division ofcases lU1d "aients, and the manner in which expenses will
       be reimbursed and disbursed, and any modifications will be done in wrltiIi.g :md ntt2ch~ to this
       agreement ofdissolution nnd division cases.   of




       attuml:ys fe·:s s!1.1.11 be spHt ll'i pl'cvld~i Im/Jer tire p:.lr.I~C'.;hip original c.~"~ement (as ifthe

       parlnec!Jhip were not di;;sf)lved).




                                                          Page 5 of 5
CAnIDI. 1-\ _       VV'-':> '\. -'"    )V\.~"        'VV        , v.   -.J     ""'"                           'J
Ca$e                                                                                  Total: 60
       Opened Nama                    Address                                 SOL           DOA Type     AAe       Lawdex

 1-3              ~rposefully left blank                                                                           •
   4     2/11198 6lcnn Bowers         Houston, TIC 77021                  1130/00         1-30-98 PI     lCR       PI-9S-35
   5     10/9/97 Lloyd Barcnscheer Houston, Texas 77088                  11/11/97        11-11-95 PI     PL        PI~97-621
   6     9/12/97 Stacia Brown         Houston, Texas 77065                                        DC     HA        DC-97·S94
   7     6123198 Willie Brown         Houston, TX 77021                   6115100        06-15·98 PI     JCR       PI-9S-123
   8              Purposefully left blank
   9    10113/98 Mark Cope            Houston, TIC 77057                 IIf22J97        11/22/95   PI   HA        PI-9S-209
  10     8/27/98 Arthur Davis         Missouri City, TX 77489            12113/99        12-13-97   PI   JCR       PI-98·1S1
  11    11/23/98 Maritza Fey          Sugarland, TIC 77479               11/21/00        11-21-98   PI   JCR       PI-98-239
  12    11/25/98 Qualicia Fields      Houston, TIC 77029                     9/8100      09-08-98   PI   JCR       PI·98-246
  13              Blanca Hemandez Huntsville,Texas 77342                     4/4198        4-4-96   PI   lCR       PI-96-348
  14     9130/97 Cordell Holloman Houston, Tcxas77032                     9/28/99         9-28-97   PI   JCR       PI-97-611
  15     3/17/98 Erin Hall            Houston, TX 77069                   2117/00        02-17-98   PI   HA        PI-97-53
  16     7130197 Randy Riebel         Houston, Texas 77083                                          PD   lCR       CV-97-S70
  17    10/13/98 Rosetta Howell       Houston, TX 77041                   9/15/00        09·15-98   PI   lCR       PI-9S-210
  18    12111/97 Tyia Hall           Houston, Texas 77090                  8/5/99          8-5-97   PI   JCR       PI-97-664
  19     5/18/98 Troy Heidelberg     New Caney, TX 77357                  5131/98         5-31-96   PI   PL        PI-98-1oo
       -10114/98 Troy Heidelberg      Conroe, TX 77301                    5130198        05-30-96   PI   lCR       PI-98-214
  21     6125/98 Chris Kopycinski    Manvel, TX 77578                     3/14/98        03-14-96   PI   PL        PI-98-125
  22      81 5/98 Carl Kaigler       Burton, TX 77835                      616100        06-06-98   PI   JCR       PI-9S·171
  23     4/1S/98 Estate ofIdell King Houston, TX 77020                    7/11199        07-11-97   MM   lCR       MM-97·594
  24     6/29/98 Leroy Krolczyk      Stafford, TX 77477                  11/24/97        11-24-95   PI   PL        PI-98-134
  25      4/9/98 Rodger Kendrick     Houston. TX 77089                   10/28199        10-2S-97   WC   JCR       WC-97-74
  26     6123/98 Sheila Kegans       Houston, TX 77055                    5/19/00        05-19-98   PI   JCR       PI-98-125
  27      8/5/98 Terri Kaigler       Bunon. TX 77835                         616100      06-06-98   PI   JCR       PI-9S-171
  28              PurposefuJJv left blank
  29      8/6197 Tom Lewis 1lI       Houston, Texas 77089                  8/4/99          8-4-97   PI   PL        PI-97-572
  30     8121/98 Anthony Muro        Houston, TX 77009                    5/11/00        05-17-98   PI   JCR       PI-98-178
  31      7/7/98 Christy Munoz       Houston, TX 77019                    5/22199        05-22-97   PI   JCR       PI-98-142
  32     6/29/98 Linda Mckenzie      HOUSIOn, TX 77051                    8114/97        08-14-95   PI   PL        PI-9S-130
  33    12/12/97 Maria Mattinez      Houston, Texas 77060                12111/99        12-11-97   PI   HA        PI-97-666
         3/27/98 Roger Morgan        Huntsville, Texas 77340             12120199        12-20-97   PI   JCR       PI-98-64
  3)     6/29/98 Seyed               Katy, TX 77450                      10/13/97        10-13-95   PI   PL        PI-98-t31
  36     1117/97 Kathryn Newman Houston, Texas 77070·2236                    816199        8-6-97   PI   PL        PI-97-640
  37     7/13/98 Jose Orellana       Webster, TX 77598                       5/8100      05-08·98   PI   HA        PI-98149
  38     3/26/97 Marcy ~inkI Lerch Beasley, Texas 77417                      613/96        6-3-94   WC   JCR       WC-97-463
  39    11110/97 Miriam Pratt        Stafford, Texas 77477                   7/5/98        7-5-96   PI   PL        PI-97-639

 Tuesday, December 29, 1998                                                                                    Page 10'2
     Opened Name                Address                     SOL        DOA Type     Me Lawdex
          "



40    515197 Jason Reeves      Houston, Texas 77092        SnJ99       5·2-97 PI   1CR    PI-97~91
41    4/17/96 Oscar Reyes      Huntsville, Texas 77342     4/4198      4-4-96 PI   PL     Pj-96-348
42    2124/98 Billy Sweazie    Crosby.TX 77.532           1131/00     1-31-98 PI   HA     Pl-9~2
43     7/7/98 CftSoforo Solis  Houston, TX 77060           416100   04-06-98 PI    HA     PI-9S-140
44   11123198 Candice Steele   Sugarland, TX 77479       11121100    11-21-98 PI   lCR    PI-98-24I
4S    1112198 Jean Shanley     Houston, TX 77070         12124/99    12fJ.4197            224
46   11123/98 Roben Steele     Sugarland, TX 77479       11121100    11-21-98 PI   lCR    PI-98-240
47     8/7/98 Sandra Swea:zie  Houston, TX 77036          1117/00   01-17-98 PI    1CR.   PI-98-173
48    9130198 Sleven Shepard   Hol1Scon, TX 77067         8122100   08-22-93       1CR.   PI-9S-20S
49    11/4198 Tammy Sweazic    Crosby, TX 77532           1117/00   01-17-98 PI    1CR.   PI-98-22S
50   10129/98 Jemny Thompson Houston, TX 77058            10/9/00   10-09-98 PI    lCR    PI-98-221
51    10/5198 Danin Williams   Houston, TX 77088          9123/00   09-23-98 PI    lCR    PI-98-20S
52    6/23/98 Howard Williams Houston, TX 77083            9/6197   09-06-95 PI    PL     PI-98-124
53   10/16/97 Brenda zabodyn   Conroe, Texas 77306        1117199     1-28-97 PI   -RA    PI-97-626
S4   12/16197 Jaculyn Zigtema  Tyler. Texas 75701        12112199   12-12·97 PI    PL     PI-97-67S
5S            Herman Horton
56            Felton Canno\1ch
57            Robert Martin
              Ray McFarland
59           Nancy Tatum
60           Stacie Smith
61           Chad Timmons
62           Dorothy Williams
  EXHIBIT'S'          Ut'#-S t~+ rev'\'\lLl• tf\.                     U   ((\ ~~!I
  Case                                                                           Total: 13
         Opened Name                     Address                             SOl.        DOA Type       AAe    Lawdex

  as 1       618198 RBynaldo Aguirrev'   Aransas Pass. TX 78336
           8110199   08-10-97       -   PL     PI-97-582
  8M2       9/25/97 Kennisha Brown       Houston, Texas 77092
             9/.8199 ' 9-18-97 PI         ICR    PI-97~
  aS3       8/14/97 Maria Contrerasv'    AIansas Pass. Texas
               8/5199     8-.5-97 PI       PL     PI-97·S82
  SM@                Edward Gage         Hempstead, Texas 77445
           3/12199    3-12·97 PI        ICR    PI·97-465
  SMeJ               MaIyGurode          Houston, Texas 77015
             4/22/98    4-22·96           PL     PI·96·350
  as&                           J
                     Susan Galvin        HoU$1on, Texas 71079              3/18/98    3·18·96 PI        PL     PI·96·337
  8M         11 5/98 Joe McConaga Jr.    Houston. Texas 71040               1/4/00     1-4-98 PI        lCR'   PI-98-1
            7/28/98 Nathan M<:Dona1~
  53>
  Sr.@
,. S
            6/11197 Reynaldo Macias
           10/2]197 Gabino Rodriguez
                                         Bay City, TX 77414 .
                                         South Houston, Texas 77587
                                         Houston, Texas 77093
                                                                           9/15191
                                                                           6110199
                                                                            1/6199
                                                                                     09·15-89 PI
                                                                                      6-10·97 PI
                                                                                       1-6-97 PI
                                                                                                        ICR
                                                                                                        PL
                                                                                                        PL
                                                                                                               PI-98·165
                                                                                                               PI-97·521
                                                                                                               PI·97-630
  5~ 1/6198 Lany Robins                  Houston, Texas 77042
              1/4/00     14-98 PI         JCR    PI-9S·}
  8M 2 1'1J21197 Ruth Whitaker V         Tyler. Texas 75701
              12/27/97   12-27-95 PI        JCR    PI-97-679
  8M 13            Terry Wade ...;

  81V114           Kelly Reynolds

  1 15             Carey Durden     v
   BS 16           Juana Arana v'
:XHIB1T C
                 · Ctt~s ~ ~'J. 'S~ ,..(.iUl5~ 1'1 WI {h.                                               <A>!;rr;:
Case                                                                                 Total: 17
        Opened rtame                         Address                             SOL        DOA Type    Me    L:aWdex
  CD        10123197 lahangir Ayyobi         Houston, Texas 77012               8/6199     8--6-97 PI   PL    PI-97-633
        2    121 5197 Cheryl BrawnY          Houston, Texas 77096              1118199   11-08-97 PI    lCR   PI-97-6S9
  ~ )..      121 5/97 Robert Brown v         Houston, Texas 77096              11/8/99    11-8-97 PI    lCR   PI-97-659
...--"'.,A) 101 2197 Alfred Davis            Van Vicke. Texas 77482            9/17/99    9-17-97 PI    HA    PI-97-619
            10123/97 Nathan Drummond         Houston, Texas 77079               8/6199     8-6-97 PI    PL    PI-98-55
             6121/97 Maria Gaytan            Houston. Texas 77075             10118198   10-18-96 PI    PL    PI-97-544
             6120/97 Guadalupe Huerta        Houston, Texas 77017             10/18198   10-18-96 PI    PL    PI·97·S44
             12/3/97 Blanca Izquierdo        Houston, Texas 77021             11/16/99   11-16-97 PI    lCR   PI·97-665
             12/3/97 Eli:z.abeth Izquierdo   Houston. Texas 77021             11/16/99   11-16-97 PI    lCR   PI-97-665
            1'1J22/97 Michael lohnson        Houston. Texas 77026             12/17/99   12-17-97 PI    PL    PI-97-677 TO
            BE SPLIT 50150
                      Arthur Mayo            Santa Monica, California 90404    8/29/97    8-29-95 PI    PL    PI·97-539
              6/13/97 Arthur Mayo            Los Angeles, California 99048     8/29/97    8-29-95 PI    PL    PI-97-539
            10129/98 Bryan Rehbein           La Porr. TX 77571                 9125/00   09-25-98 PI    lCR   PI-98-220
                    Purposefully left blank
  v      11/16/97 Catalina Velazquez Houston. Texas 77012                     11/16199   11-16-97 PI    lCR   PI-97-665


 ~1
          1213/97 Rosaura Velazquez Houston. Texas 77021                      11/16199   11-16-97 PI    PL    PI-97-665
                  SAM MYERS
                  TINA JAYNES
  C!?              TIMOTHY RAY
    Opened Name                   Address                      SOL        DOA Type     AAe    Lawdex
1    7/9/98    Ji.Quny Burton     Houston, TX 77016          1123/00   01-23-98   PI   1CR    PI·98-14S
2    8/13/97   David Howard       Houston, Texas 77016       8/12/99    S-12-97   PI   PL     PI-97-SS0
3    8/13/97   Martha Howard      Houston, Texas 77051       8/12/99    8-12-97   PI   PL     PI-97-S80
4    8/13/97   PaDSy Oliver       Houston, Texas 77051       8/12/99    8-12-97   PI   PL     PI·97·SS0
5    6/3/98    Dccanna Powell ,   Houston, TX 77084         12/13/98   12-13-96   PI   HA
    PI-98-117
6     9/1/98 Page Butera          Missouri City. TX 77459     9/1100     9/1/98   PI   JCR
   Pl·98·187
7              OllicCartcr




                                                                                                          ,....
  ·.      '.
                                                  AU Cases                                    Total: 90
                                                                                                   Status:    Referred

        Opened Name                     Address                            SOL        DOA     Type     Me Lawdex
   1               ZaBfeAJan            Houston. Texas 77064             212/98      2-2-96            JeR      Pl-96-329
   2               Mario Aldama         Houston, Texas 77012            5/19197     5-19-95            JCR      PI-95-354
   3     519197    Brian ADdrus         Houston, Texas 77076             516/99      5-6-97   PI       JeR.     PI-97-493
   4     Sf 9/97   Kimberly Andros      Houston. Tum 77076               5/6199      5-6-97   PI       JCR      PI-97-493
   5               Maria ARUano         Pasadena. Tcxzs 77504           2/14/98     2-14-96   PI       JCR      PI-96-333
  ..6              Sandy Bailey )(      Houston, Texas 77044            1130196     1-30-94            JCR      PI-94-137
   7               Petc BcnIlIncur;<    Richmond, Texas 77471           7123198     7-23-96            JCR      PI-96-36I
   8      817198   Eilceen 'Berk        Willis. TX 77378                                               HA
   9     5129198   Dewane Bomar         Spring, TX TT373 .              8123199    08-23-97 PI         JCR      PI-98-J J2
  10     8/17198   Bitlie CaJr          Houston. TX 71028
  11               Johnny Castillo      Houston, Teas 77007             2125198     2-25-96            JCR      PI-96-343
  12     8/17/98   MarilynCloud         Corsicana. TX 75110              2/1199     020197
  13    1J/11197   Carl Cocpcr III      El Paso, Tcus 19925             1118199     11.&-97 PI         JCR      PI-97-641
  14               IdeJlaEaly           Waller. Texas 77484             5/19195     5-19-93            JCR      PI-93-421
  15               Bertha Evans         Houston, Texas 77016            3/14197     3-14-95            JCR      PI-9S-28I
                   Kimberly Evesson     livingston, Taas 77351-9718    10/10197    10-10-95            JeR      PI-96-325
  11               Matthew Evesson      Livingston, Tc:as 77351-9718   10110197    10-10-95            JCR      PI-96-325
  18               Alberto Garcia       Galena Pad:. Texas 77575        2128/94     2-29-92            JCR      PI-92-27
  19               Anum Glrcia          Houston, Tr::us 77017          12127196    12-27-94            JCR      WC-94-249
  20               Jimmy Garcia         Richmond, TCDS 77469            7123198     7-23-96            CLS      PI-96-36I
  21               Kevin Garcia         Houston, Taz 77034              2/14/98     2-14-96            JCR      PJ-96-333
  22             Ana Gilbonio           Houston. TellS 77083            3/15198     3-15-96            HA       PI-96-349
  23             Blanca Gonzales        Houston, Teus 77022              415/98      4-5-96            a.s      WC-96-404
  24     51 1198 Robert Griego           Leesville. Ullisiana 71446       1/1101     0-0-00 CV         lCR      CV-98-89
  25             Rodolfo Guardado       Houston, Teas 77039               111199       N/A             GM       PI-94-148
  26             Greg Hall              Houston, Teus 77019              5nJ98       5-2-96            JCR      PI-96352
  27     8/6198 Raymond Harvey          Houston, TX 71061               7130/00    07-30-98 WC         lCR      WC-98-172
  28    8/17/98 Roy Harvis              Crockett. TX 75835
  29             LanyHaynes             Houston. TeDS 77011              1/1/99    Unknown             JCR      PI-96-374
  ?II   II/ 5198 Joel Hemmdez           Jacinto City, TX 77029         8/13199     08-13-97   we
                 David Hinton           Houston, TC13S 77004           12/4194      12-4-92            JCR      LS-93-7
  32             Sherrian Houston       Carolton, Teus 75007           3122195      3-22-93            JCR      PI-93-28
  33     8/7198 Paula Jac:bon           Bellville, TX 77418            6/12100      061298    PI
  34             Catherine Johnson      Bellville, TalIS 7741 g         1/5198       7-5-96            JCR      PI-96-403
  3S    7/13/98 James Jobllson          Houston, TX 71088              5127100     05-27-98   PI       JCR      PI-98-150
  36             Clarence Johnson Jr.   Bellville, Texas 77418         11/1194      11-1-92            JCR      PI-92-)ll
  37             CaseyJoues             Houston, Texas 77026            519191       5-9-89            SeR      PI-89-122
  38             BanyKC'rin             Houston, Tc:xz 77036             1/1/99    Unknown    PI       JCR      PI-96-377
  39             L1ewel \yD Leadon      Houston. Ta.as 77088           3/18/97      3-18-95            JCR      LS-95-273
  40             Richard Leon           Libeny, Texas TlS7S                                                     PI-93-88
  41     41 8/98 Debra MlYor            New Waverly, TX 77358           1/1/99                         JCR      PI-98-103
  42    4123/98 Richard Martinez        Houston. Tems 77039            3/19/00     03-19-98 PI         JCR      PI-98-82
  43    8/17198 Paula Maxie             Lufkin, TX 1m 1
  44    8/17198 Rita Maxie              Lufkin, TX 1m I
  45             Latonya Mayes          Houston, Texas 77028            Ifl7194     1-21-92            JCR   PI-92-33
  46             Sheila Mayes           Houston, Tem 77028              Ifl7194     1-27-92            JCR _ PI-92-33
  47     6/219&. Roger McNiel           Livin~ton, TX 7735 I           12115199    12-15-97 PI         JCR PI-98-115


                                  ~fP;J fj{,/L
Thursday, December 31,1998                                                                                     Page 1 of2



                                                                                                                             j
                                                                                             Status:   Referred

  .Opened Name
          Johnny McPeters
                                        Address
                                        Conroe, Texas 77301
                                                                    SOL
                                                                   6/5192
                                                                                 DOA Type
                                                                              6-05·90
                                                                                                 Me Lawdex
                                                                                                 JCR     PI:.90e1I2
48
49        James Murray                  Houston, Texas 77064      8/18197     8-18-95            JeR     PI-9S-299
            .....
50             TuanNguyen               HoU$lon. Texas 77048       1/1/99    Unknown             JCR     PI-96-377
51             XoanNguycn               Houston, Texas 77080       1/1199    Unknown             JCR     PI-96·377
52     11 6198 Twana Pt&e               Humble, Texas 77338                             CC       HA      CC-98-S
53    417198 Manuel PaIa                Houston, TX 77053         9/26/99     Cl9-26-97 WC       JCR     WC-98-73
54             Linh Pham                Houston, Texas 77048        1/1/99   tJalc:nown          ICR     PI-96-377
5S             Helen Polk               Trinidad, Texas 75163     6130187      6-30-85           JCR     PJ-8S-89
56             Clarence Provo           Houston, Texas 77020                                             PI-92·9I
57 12116/98 Susan Pug1I                 Friendswood, 'IX 77546    1219100    12-09-98 CV
58    .219/98 Howard lWvis              Houston, TX 77024          9/4/99      9-4-97            JeR     PI·98-32
59 .           Troy Randle              Houston, Texas 77088      1216197     12-6-95            CLS     LS-9S-330
60 10/9/97 Phelmar Roberts              Houston. Texas 77091       6/5/99      6-5-97 LS         JCR     LS-97-62S
61             Martina Saenz            Houston, Texas 77013       4/2/98      4-2-96            JCR     PI-96-344
62             Ninfa Sa=z               Houston, Texas 77007      2IlS198     2-25-96.           JCR     PI-96-342
63             David &n.via             Houston, Texas 77085      1012197     10-2-95            SCR     PI-95-309
64             Stanley Saucedo          Stafford, Texas 77477      111199    Unknown             SCR     PI-96-373
      8/7/98 Mellie Sq,ers              Onaiska, Tx 77360          9/9199     090997
66             Marie Smith              Corsicana, Texas 75110    1/13/98     1-13-96            JCR     PI-96·326
67   8/17/98 Andrew Spaulding           Houston, TX 770SS          111/00       01-98
68             Clarence 'Stubblefield   Houston, Texas 77091       1/1/99    UukDown PI          SCR     PI-96-37S
69             Josh Stubblefield        Houston, Texas 77015       1/1/99    Unknown             SCR     PJ·96-376
70   2117/98 Josh Stubblefield          Houston, TX 77015                             CD                 CD-9840
71             Thien 1"haMle            Houston, Texas 77036       1/1199    Unknown PI          SCR     PI-96-377
72             Helen Thomas             Houston. Texas 77091       8/8197      8-8-95            SCR     Pl-9S-321
73   5/19/98 Neva Thanas                Houston, Texas 77032      8/15199    08-15-97 MM         SCR     MM-98-102
74             Angela, TiDmpson         HOU$lon, Texas 77016                                             PI-90-79
75             Terrance Thompson        Houston, Texas 77016                                             PI·90-79
7fJ 10123/98 George lbowot              Katy, TX 77493            10/3/00     10-3-98 PI         JCR     PI-98-218
77   8/17/98 RaymondTumer               Brenham, TX 77833
78             Archie V1IIlCC           Houston, Texas 77022       1/1/99    Uoknown             sca     PJ-96-374
-')
      8/7/98 Michael Wahnon             Houston, TX 77043        3/13100       031398
.J    8/7/98 Patricia Wahnon            Houston, TX 77043        3113/00       031398
81    8/7/98 Andrea Laoac Walker        Houston, TX 77016        7115/00       071598            HA
82   1130/98 Rosemary Walker            Livingston, Texas mSl     8111/99      1-11-97 PI        SCR     PI-98-27
83 11119198 Joann Washington            Houston, TX 77033        11111100     It-I 1-98 PI       HA      PI-9S-2J8
84   8/17/98 Earnest Webb               Houston, TX 77066         1111199       110197
85             Max Webb Sr.             Houston, Texas 77015        111/99   Iilknown            JCa     PI-96-376
86            .Catelyn Williams         Marion, AJXansas 72364     8/1/96       8-1-94           SCR     PJ-94-207
81             David Wiffiams           Midland, Texas 79705       1/1199    O~I-99              HA
88             Hugh Williams            Houston, Texas 77047      6f23/95     6-23·93            JCR     PJ-93-86
89             Lee Williams             Waller, Texas 77484       3122195     3-22-93            HA      PI-93-28
90 10/7/97 John Williams Jr.            Houston, Texas 77028       5/1199      5-1-97 PI         HA      P1·97-618
                                        CASES REFERRED

               ....

                                                      05-19-95        05-19-97
J    3
         ALDAMA, MARIO RS 7/91 •

         HINTON, DAVID   RS 7/91 •

         JEFFERSON, O.T. RS 7/91 •

                                                      12-04-92        12-04-94

     4   LEADeN, LlEWELLYN RS 7/91          '*
       03-18-95        03 -18-97
     5   PROVO, CLARENCE RS 7/91 •

     6   RANDLE, TROY RS 7/91.*
                       12-06-95        12-06-97
     7   Maria Arellano
                          02-14-96        '02-14-98

r:

  10
  11
         Greg Hall

         Josefina'Enriquez
         Martina Saenz

         Mathew Eveson

                               ETAL

                                                  05-02-96
                                                  03-1.8-95
                                                  04-02-96
                                                                   05-02-98
                                                                   03-18-97
                                                                   04-02-98

  12     Lori White

  13     Pete Bentancur & Jimmy Garcia

  14     Estrellita Ventura

V',('    JOHNSON, MELVA     KK 7/91 '*

y~       THOMPSON, ANGELA      KK ....

Vi7      WILSON, HAROLD     KK 7/91 •
                09-17-90        09-17-92
\118     SILVETTI, PATTY JO        GOLDA 7/91.

  19     JOHNSON, CLAREN'CE    CP 7/91·
              11-01-92        11-01-94
 20      SENTER, PERRY    ETAL CP 7/91 •
             03-06-95        03-06-97
 21      WILLIAMS, HUGH JR. CP 7/91 *
                06-23-93        06-23-95
 22      GARCIA, ARTURO CK 7/91 '*
                   12-27-94        12-27-96
 23      SERMENO, ARTURO       CK 7/91 '*
            12-08-94        12-08-96
 24      ALAN, ~IFE       CB 7/91 *
                  02-02-96        02.-02-98
 2S      BAILEY, -SANDY   CB 7/91.
                   01-30-94        01-30-96
 26      BIAS, LOUCINDA        CB *
                  09-03-87        09-03-89
~        BLEDSOE, JOHNNIE CB 7/91. *
                 09-29-94        09-29-96
 28      CASTILLO, JOHNNY CB 7/91 '*
                 02-25-96        02-25-98
/19
 .,      EALY, IDELLA          ca 7/91 '*

         EVANS, BERTHA       CB 7/91 *
              03-14-95         03-14-97
 31      GILBONIO, ANA         CB 7/91 •
            03-15-96         03-15-98
 32      HOUSTON, SHEmuAN at a1 CB 7/91 •
           03-22-93         03-22-95
 33      JONES, CASEY          CB ....
              05-09-89         05-09-91
 34      LANE, ERNEST   CB 7/91 ....
                09-08-92         09-08-94
,as      MAYES, SHEILA     CB 7/91 •
                01-27-92         01-27-94
 36      McPETERS, JOHNNY      CB *
                 06-05-90         06-05-92
 37      MORRAY, JAMES P. CB 7/91 •
                 08-18-95         08-18-97
 38      POLK, HELEN MARIE     CB *
                 06-30-85         06-30-87
 39      SAENZ, NINFA   CB 7/91        *
            02-25-96         02-25-98
~O       SARAVIA, DAVID CB 7/91 *
                   10-02-95         10-02-97
 41      SMITH, MARIE CB 7/21 CB *
                  01-13-:96        01-13-98
 ~2      THOMAS, HELEN     CB 7/91 *
                08-08-95         08-08-97
 43      VASQUEZ, CANDELARIO CB 7/91 •
              11-26-95         11-26-97
 44      JOE HALL

 45      wn..LIAMS, ALAN AfNIF MELtSA .

          1'~\}r'bll~~     I
                       <01 /f.~/ ,1.41-(1'70
                         ADRIENNE'S AND BILL'S LIST

      "...




 Walter Angerstein
 Doris Cloud
 Donna Cooper
 Courtney Crawford
 Emily Edgington
 Susie and Jay Green
 Georgian Harris
 Wayne Hill
 Trena Joseph
 Betty LeBlanc
 Charlotte Nail
 Ernest Nesbitt
 Hazel Nowling
 Max Parker
 Diana Sanchez and Rosanna Soto
 Sharika Smith
Hilda Sustaita
Rebecca Truillo
Lola Thome (2)
Ronnie Tyler
Johnny and Heather Wheeler
Costello Winters
Jennifer Garza
Eona Pugh (2)
Farzin Khajehnouri
Stephanie Love
Kenneth Orr
April Carmouche
Wilbert Carmouche
Nathan Casey and Monica Kelly
Lester Cohen
Sallie Francis
Arnulfo Guytan
Alicia and Thomas Grifaldo
Sandra Hudson
Gail Jones
Ashley Layden and Robert Weatherford
Rosie Linear and Jerry Miller
Joyce McBride
Shane and Marc Clemons
ROberto Corrales
Margarita Garza - TBC
Jesse Rush
Ed an4-Roderick Anderson and Darrell Johnson (TBC)
Cynthia Betacourt
Freddie Franklin
Bridgett Johnson
Cherisha Johnson
Catherine Peck
Marcus Pennie
Chris Preuss
James Jones
James Smith
Andrea, Allen and Domlnque Steptoe
Emitt Thompson
Beatriz Uriante
Paula Walker
Elizabeth Wells
Sheila Williams
Alice Garcia
Carolyn Carter
Shirley Bean
Nathanial Brandon and Kenneth Slay
Michael, Linda and Missy Clow
Frank Dixon
Tonya English
Janice Frederick
Marbary Hammonds
Martha Hardin
Warren Holland
Ana, Angela and Grace Moran
Charles Nelson and Keithric Thomas
Rosa Perez
Donald Thurman
Jerry Miller
Shawan Moore
Shanequa Pankey
Felisita, Isaac and Paulino Ochoa
Mervin Pellerin
Taylor Thomas and Seneca Brooks
Chad Timmons
Stacey Wodarski
Loudrica and Louis R~gers and Lashonda Wyble
Karina Sanford
Mark Shorten
Lorena Rojas
Tanya Robinson
Tanya Robinson
Lanza Adams
Maria and Severiano Almazo
Tiffany Bemard
Yvonne Baker and Michelle Synder
Dominic Cuccerre
Elizabeth Cannon
James Burton and Rose Warner
Kimberly Cruise
Matilda Campos
Bennie Dunn
Christopher Daniel
Arlena and Dierdra Gray
Fred Goss
Jerry Goree, Jr.
Jerry Gorre, Jr. and Ruby Justice
James Grisby, Jr.
Carol Hatter
Chris Johnson
Vemel, Valenia and Vemel'(et al.) Jackson
Shem Kendall
John Lee
Sydell Liniscombe
Pamela Lewis
Igdalia Miranda
Molly and Robert Mitchell
Alicia Osborne
Joseph Odorn
Robert OSbome(
Deanna Powell
Maryam Rahvar
Anita Smith
Dora Sanchez
Tusha Shaw
Bob Tharp
Mary Thomas
Warren Thompson
Merilyn WilJiams
Debra West
Kelly White
Melinda and David Calloway
Ethal Landry and Kia Terry
Keith Rankin
Earl Joseph
Shirley Carter and Bryan Rone
 Joey Esterer
 Trevor.Gentry
 Samantha Matthews
 Carolyn Hawkins
 Michael Hardiman
 Chris Jones
 Lucias Josey
 Eunice Layden
 Estelle Levine
 Bruce Lowry and Kenneth Williams
 Gladys Mosely
 June Reddic, Ava Randle, Kelvin L. Randle, II, Ashley J. Randle, Alexis J. Randle
 Terri Ross	                                                  .
 Samuel Watkins
 Jimmy Roverson
 Igdalia Miranda
 Debbie and Robert Taylor
 Delwin Jenkins, et aJ.
 Doris Roes
 Chimira Watson         .
 Carlos Cooper/Brittany Ratcliff
 Chandra Burrell



   Problem Cases TBC:

   Shonda Thome

   Benny Dorsey

   Shamique Coleman

   Gernaro Bemell

   Ardell Garrett

   Chris Gamett

y	 Barbara Haley
   Johnnie Schubert
   Gloria Silva (L1gastera)
   Carry Ross
   Vernie Dale
   Michael Rougeau/Michael Burton
   Michael Wells




                                                                       '.~
'if',
  ,I

				
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