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No. 2009-30298-211

~='-'f HK SUPREME COURT OF TEXAS

MCK4MY EVERS ESTA TES HOMEOWNERS

ASSOCL4TION MCK4MY EVZRS ESTATESHOMEOKVERS ASSOCIATIONS INC.,MCX4MY DEVELOPMENT COMPANY LTD.SEELTON EVVESTMENTS LLC, ANDJOIIN SEELTON,

Petitioners,

PLAINSCAPITAL SAKE,

Respondent.

PETITION FOR REVIEW

Lloyd K. Ward, Ksq.Lloyd Ward dt Assoc., P.C.12655 N. Central Kxpwy., Suite 1000

DaHas, Texas 75243Telephone (972) 361-0036Facsimile (972) 361-0039

Attorneys For Petitioners

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No. 2Ã9-30298-2I I

THK SUPREME COURT OF TEXAS

MCKAMY EVERS ESTATES HOMEOP7VEESASSOCIATION MCKA1M YE'VEES ESTA TESHOMEOmVZZS ASSOCIATIONS INe,

MCEAMY DEVELOPMENT COMPANY LTD.

SKELTON INVESTMENTS LLC, ANDJOHN SKELTON,

Petitioners,

PLAINSCAPITAL BARK

Respondent.

PETITION FOR RKVIKW

Lloyd K. Ward, Esq.Lloyd Ward dk Assoc., P.C.12655 N. Central Expiry., Suite 1000Dallas, Texas 75243Telephone {972) 361-0036Facsimile {972) 361-0039

Attorneys For Petitioners

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LIST OF PARTIKS

MCEAMY EVENS'ESTA TES HOMEOPWEES'

ASSOCIATION, MCEAMY EVERY ESTA TES

HOMEOSW EES ASSOCIA TIONS INC.,

MCE'ANY DEVELOI'MENT COMI'ANY LTD.SEELTON INVESTMENTS LLC, AXDJOHN SEEL TON.

Petitioners

Attorneys Lloyd K. Ward, Ksq.Lloyd Ward 4 Assoc., P.C.12655 N. Central Kxp., Suite 1000Dallas, Texas 75243Telephone (972) 361-0036Facsimile (972) 361-0039

PLAINSCAI'ITAL BANE

Respondent

Attorney Klizabeth BasdenBadsen k Ivie, Attorneys at Law17300 Dallas Parkway, Ste. 3160Dallas TX 7524SFacsimile (972) 248-9405

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TABM 01 CONTENTS

~Pa e

I. STATEMENT OF NATURE OF CASE......

II. ISSUES FOR REHEARING PRESENTED

ISSUE PEESEWTED . .

ISSUE NUMBER ONE,.

Was the Judgment entered by the Trial Court on February 22, 20IO, on thepending Motion for Entry of I n terlocutory Judgment as to L i abi l ity andDeclaratory Judgment, afinaljudgment for purposes of Appeals

III. STATEMENT OF FACT

IV. SUMMARY OF ARGUMENT

V. ARGUMENT AND AUTHORITIES

ISSUE NI.JMBER ONE.

VI. CONCLUSION.

VIII. PRAYER

VII. EXHIBIT LIST

PETITION FOR REVIEW — Page i

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INDEX OF AUTHORITIKS

Cifafion ~Pa e

Lehmann v. Har-Con Corp., 39 S 8'.3d 191 P'ex. 2001).

M O. Dental Lab v. Rape, 139 S. W 3d 671 P'ex. 2004). .....7,8

N E. Indep. Sch. Dist. v. Aldridge, 400 S. 8".2d 893, 895 (Tex. 1966).

Univ. of Tex. v. Estate of BlackInon, 195 S. 8".3d 98, 101 (Tex 2006) .

AypeHant Response to Jurisdiction Page-2

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PETITION FOR REVIEW

To the Honorable Supreme Court of Texas:

Comes Now, M cKamy Evers Estates Homeowners Association, Inc., McKamy

Development Company Ltd., Skelton Investments LLC, and John Skelton, hereinafter referred to

as Appellants, and pursuant to Texas Rule of Appellate Procedure 53, files this their

Petition for Review, Born this action in the Court of Appeals for the Second District, and

in support thereof would respectfully show unto the Court as follows:

STA TEMENT OF NA TUBE OF THE CASE

A. This apped is from an judgment entered for Appellee PlainsCapital Bank, on February

19, 2010, the Trial Court was adjudicated by the Honorable Lee Shipman, the 211 Judicial

District Court, of Denton County Texas. This action is based upon Appellants claims of

Declaratory Judgment, violation of restrictive covenants, Gross Negligence, and Attorney's fees.

B. This action was filed on or about September 15, 2009, and service of citation is shown to

have occurred on or about September 29, 2009. Appellee filed motions for entry of default

Iudgment on January 22, 2010 (Motion for Entry of Find Judgment by Default and Declaratory

Judgment), which was granted on February 10, 2010 (however, it does not appear to have

disposed of al l i ssues), Motion for Entry of I n terlocutory Judgment as to L iability and

Declaratory Judgment, filed on February 10, 2010, and a Final Judgment by Default (based on

the Motion for Interlocutory Judgment), was entered on February 22, 2010.

C. On o r about March 22, 2010, Appellants filed their motion for new trial in this action

Appellant Response to Jurisdiction Page-3

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which was denied on May 6, 2010. Appellants filed their notice of appeal on June 8, 2010.

D. On o r about June 17, 2010, this Honorable Court sent correspondence to Appellants to

file appropriate briefings related to Jurisdiction on this action, specifically, whether T.R.A.P,

Rule 42.3(a) and 44.3 had been complied with.

ISSUES PEESENTED

ISSUE MEMBER ONE

5'as the Judgment entered by the Trial Court on February 22, 2010, on the

pending Motion for Entry of I n terlocutory Judgment as to L i ab i l ity andDeclaratory Judgment, afinalj udgment for purposes of Appeal?

STATEMENT OF EA CTS

It is undisputed that on the PlaintiQ's Original Petition and Emergency Application for

Appointment of Receiver in this action was filed on or about September 15, 2009, and that

service of citation is shown to have occurred on or about September 18 through 24, 2009 against

Defendants Mckamy Evers Estates Homeowners Association, McKamy Evers Estates

Homeowners Association Inc., McKamy Development Co., Ltd., and John Skelton.

Appellee filed motions for entry of default judgment on January 22, 2010 (Motion for

En~ of Final Judgment by Default and Declaratory Judgment), which was granted on February

10, 2010 (however, it does not appear to have disposed of all issues), Motion for Entry of

Interlocutory Judgment as to Liability and Declaratory Judgment, filed on February 10, 2010,

and a Final Judgment by Default (based on the Motion for Interlocutory Judgment), was entered

on February 22, 2010.

On or about March 22, 2010, Appellants filed their motion for new trial in this action

which was denied on May 6, 2010. Appellants filed their nonce of appeal on June 8, 2010.

The Original Petition f i led in this Cotnt plead the following causes of action (a)

Appellant Response to Jurisdiction

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Declaratory Judgment, seeking a determination of rights under a written agreement, (b) violation

of Restrictive Covenants, seeking a declaratory judgment regarcHng certain provisions as being in

violation of the Texas Property Code, and damages as allowed under the Property Code, ( c)

gross negligence, and (d) attorney's fees. See Plaintiffs Original Petition and Emergency

Application for Appointment of Receiver, at pages 7 through 10.

The Motion for Entry of Final Judgment by Default and Declaratory Judgment, sought a

default judgment as to al l causes of action against Defendants Mckamy Evers Estates

Homeowners Association, McKamy Evers Estates Homeowners Association Inc., McKamy

Development Co., Ltd., and John Skelton. See the Motion for Entry of Final Judgment by

Default and Declaratory Judgment, attached hereto at pages 1 through 3. The Interlocutory

Default Judgment as to Liability, entered by the Court on February10, 2010, found liability as to

McKamy Development and Skelton Investments LLC, as to violations of the Texas Property

Code, and as to John Skelton as to his negligence. See the Interlocutory Default Judgment as to

Liability, attached hereto.

The Motion for Entry of Interlocutory Default Judgment as to Liability and Declaratory

Judgment, filed by Appellee's sought only a "declaratory default judgment as to liability and a

declaratory judgment by default against Defendants McKamy Evers Estate Homeowners Ass.,

and McKamy Evers Estates Homeowners Association Inc., McKamy Development Co., Ltd.

Skelton Investments LLC and John Skelton."

However, the Final Judgment by Default, however, granted judgment against McKarny

Development Ltd., and Skelton Investments LLC for Fifty Eight Thousand Two Hundred Dollars

($58,200.00) plus prejudgment interest (without specifying what cause of action this award is

based upon; John Skelton in the sum of One Hundred Seventy Four Thousand Six Hundred

AppeHant Response to Jutisdiotion Page-5

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Dollars ($174,600.00), which was not plead for in the Motion to Enter Interlocutory Judgment; a

Declaratory Judgment, without specifying what party- this action was alleged against; and

judgment against McKamy Development Ltd., Skelton Investments LLC, and John Skelton for

attorney's fees of Twenty Six Thousand Five Hundred Eighty Eight Dollars ($26,588.00) and

cost of Court.

No final judgment or dismissal of cause of action has occurred against Defendants

McKamy Evers Estate Homeowners Ass., and McKamy Evers Estates Homeowners Association

Inc. Accordingly no final judgment exists as of this filing.

SUMMAEF OF ARGUMENT

In the action at bar, as there has been no judgment, nor dismissal of cause of action has

occurred against Defendants McKamy Evers Estate Homeowners Ass., and McKamy Evers

Estates Homeowners Association Inc., no final judgment exist as of this filing, and this case is

not yet ripe for appeal,

ISSUE %UMBER OWE

8'as the Judgment entered by the Trial Court on February 22, 2010, on the

pending Motion for Entry of Interlocutory Judgment as to L i abi lity andDeclaratory Judgment, afinalj udgment for purposes of Appeal,

It is undisputed that while Defendants McKamy Evers Estate Homeowners Ass., and

McKamy Evers Estates Homeowners Association Inc., were made parties to this action, served

with citation, on September 24, 2009, and against whom Plaintiff has filed a Motion for Entry of

Final Judgment by Default and Declaratory Judgment, seeking entry of default as to Defendants

McKamy Evers Estate Homeowners Ass., and McKamy Evers Estates Homeowners Association

Inc., and against whom Plaintiff f i led a Interlocutory Default Judgment as to Liability, again

seeking judgment against Defendants McKamy Evers Estate Homeowners Ass., and McKamy

AppeHant Resgottse to Jurisdiction Page-6

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Evers Estates Homeowners Association Inc.

As of this date, Defendants McKamy Evers Estate Homeowners Ass., and McKamy

Evers Estates Homeowners Association Inc., have not been dismissed &om this action, nor has

any judgment been granted against them.

In 1966 the Texas Supreme Court recognized that "[t]he finality of judgments for

appealability has been a recurring and nagging problem throughout the juchcial history of this

State." N E, Indep. Sch. Dist. v. Aldridge, 400 S. W: 2d 893, 895 (T'ex. 1966). Finally, in 2001, the

Texas Supreme Court in Zehmann v. Har-Con Corp, 39 S. 8;3d 191 (Ter. 2001), aAer reviewing

the struggles the Court had experienced for more than one hundred years in seeking to define an

acceptable standard to be applied, id. at 195-203, made a series of pronouncements to the end of

eliminating uncertainty on the subject. The Court stated, as a general proposition, that the

standards to be applied should have the goal of ensuring that the right to appeal is not lost by an

overly technical application of the law, and that "this principle should guide in determining

whether an order is final." Id. At 205, The Court then said that:

[W]hen there has not been a conventional trial on the merits, an order or judgmentis not final for purposes of appeal unless it actually disposes of every pendingclaim and party or unless it clearly and unequivocaHy states that it fmally disposesof all claims and all parties

Id. The Court explained the importance of a study of both the record and the language Gf the

order m the making of the determination of finality, noting that "whether a judicial decree is a

final judgment must be determined from its language and the record in the case," id. at 195, and

The record may help illumine whether an order is made final by its own language,so that an order that all parties appear to have treated as final may be final despitesome vagueness in the order itself ....

AppeHant Response to Jurtsdichon Page-7

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In MO. Dental Lab v. Rape, 139 S.W3d 671 (Tex. 2004), the Texas Supreme Court

reiterated, and applied, the Lehmann principles that it may be necessary for the appellate coiut to

look in the record of the case to determine whether an order disposes of all pending claims and

parties, id. at 674, and that "the record illuminates whether an order that all parties appear to

have treated as final may be final despite some vagueness in the order itself," id, at 674-75

(internal quotation marks, brackets k ellipsis omitted). As will be noted below, those principles

bear on an evaluation of the finality and appeal ability issue in this case.

The record is clear that suit was brought against Defendants McKamy Evers Estate

Homeowners Ass., and McKamy Evers Estates Homeowners Association Inc., two motions for

default judgment were filed against them, no final judgment was rendered against them, and no

non suit was taken against them. The effect of a non-suit by a party is to render the merits of the

case moot as to that party, See Univ. of Ter. v. Estate of Blackmon, 195 S.P'.3d 98, 101 (Tex.

2006). The Non-suit extinguishes a case or controversy f'rom the moment an oral motion is made

in open court. Id. at 100. T hus, the final step to final disposition of all claims against all

defendants was taken in the form of a written judgment that contained the finding that "[t]his

judgment is find and disposes of all claims and parties, and is appealable." App. 1 at 75.

In the action at. bm, there has been no final disposition as to all parties, and no final

judgment from which to appeal, accordingly, until such time as Defendants McKamy Evers

Estate Homeowners Ass., and McKainy Evers Estates Homeowners Association Inc., are

disposed of the appeal is not ripe for prosecution.

CONCL USION

In the action at bar, as there has been no judgment, nor dismissal of cause of action has

occurred against Defendants McKamy Evers Estate Homeowners Ass., and McKamy Evers

AppeUant Response to Jurisdiction Page-8

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Estates Homeowners Association Inc., no final judgment exists as of this filing, and this case is

not yet ripe for appeal.

I'RA FEZ

Appellant prays that this Court find that no final judgment exists to appeal from at this

Respectfully Submitted

/s/Llo dWarded/PgLloyd E. Ward, Esq.Lloyd Ward k Ass., P.C.12655 N. Centrd Expwy., Suite 1000Dallas, Texas 75243Telephone (972) 361-0036Facsimile {972) 361-0039

CERTIFICATE OF SKRVICK

This is to certify that a true and correct copy of the foregoing pleading was sent via certifiedmail, return receipt re uepted to Elizabeth Basden, 17300 Dallas Parkway, Ste. 3160, Dallas,Texas 75248, on this q ) Hay of September, 2010.

P

/~/Lb dLloyd Ward

1. Plaintiff s Original Petition and Emergency Application for Appointment of Receiver2. Motion for Entry of Final Judgment by Default and Declaratory Judgment3. Interlocutory Default Judgment as to Liability4. Motion for En~ o f I n terlocutory Default Judgment as to Liability and Declaratory

JudgmentFinal Judgment by DefaultOrder and Memorandum Opinion of 2" District Court of Appeals dated August 19, 2010

Appellant Response to Jurisdiction Page-ix

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Qegrhn Gian &

PX,AmSCAFrIAX BANK,

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M~ ,' j r VERS XSTA EZSHOMEQVWKRS ASSOCQ XXOB,MeK1MY EVE88 ESTATESHOMEOWlGRN k880CXATXDN&lC„MCXMRVDZVRLOX'2CITCOMPANY, BTD SKKX T0iVINVESTMKÃFS, LLC, AND JOHN SREJ TON, I

Defendants. BENTON COUNTY, TKXA8

PXAXNTIFPS CPRXGJNAX PKT1TIONAND Mr R G KN LIC % R APPO NT 0 CEJVER

PLA24SCAPITAK 3AHK ("Plaint'") Kes @is Origami PetMors end Rrnezymey Application

for Ayyointtnent of Receiver, cotnplaining of XQGSfY EVZRS ESTATES HOMEOWNERS

ASSOCIATIO¹ MCKAAA' 8VBR8 ESTATES HOMBQVPSRS ASSOCIATION, 1NC; MCKAMY

3%VELOPMHNT COMPANY, LTD.; SKKTON INVBSTMBNTS, U.C; AND JOHN SIGZTOH

PDefentfarrts") and in support wonid sitovr unto this Court the forewing;

%s m e is governed 5y, and dhcovesy is intended tc be en~<-d under rovei "= h

accordance vCth RuIes 190.I and $903 of the Texas Rnics of CivH Procedure, fn that the Piainti6'is

seehng monetary reiiofaggregating in eccl of 450,000.00, exehlive of costs, pejndynent interest and

attorneys fees,

8BIC O N SKRVXCK

BettttdX'h a Texas state tenk with ayriacipd crÃce iri Vcnton County, Texas.

t'GQrrrlFF'8 O&8TÃALPETxTSORARD E553%5ÃCV' Al'~CATERS FOEAPPONTM>22T OJ RRCKVB8

I EXHfBIT

I

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Ptitrtf.

09~ r 15 f 1Sh A fsfsfetn

CferkQetihrr Dfsfrict M I

CAUSEHO. QQ g.f ~1

Z4GRBCABVXAL BANÃ, IN THE ~) JUMCXAL !

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f'55QGVCY Z~VERS ESMTR5 I tHOMEO%2%XXB A$86CXAXXOÃ,McKAMY KM' E STATES8OMEOWKBS ASBQCXkTXOB JNC.,MCKAMV'BRV1KOP1KEÃTCO%PA m, LTD„SKEf TONPTVZSTMKNT8, X M, AND JOHN SKELTON, $

Defendants. 9XÃTON COUiifTV, 7XXAR

1

PKA2@GV'O'AT, BANK (Vlainti~ 5fca this original PcNion end Emergency ApplicationI

I1

fcr Appointnrcnt of Receiver, cotnpltdrring of MCKAMY OVERS ESTATES HOMr0%NBRS

ASSOQATJON; 2vfCKAMY BVBR8 ESTA78S HOMHOVNERS A880CIATiON, AC.,' MCKAMY

3%VKQPMENT COMPANY, J.TP.; BEE~TON PfVBBIRBKTBs LLC.*AND JOHN SKKTOB

("Defcnrimts") and in mpyort vrottid shtnv unto this Court the following;

TKs case is mm-ed by, mrrf di smayis io@ndM to be con~~' d under l=-:-cf 2 h

accordance wreath Rules 190.1 and 1903 of tire Texas Rules of Civif Procedure, in that the PfafntIQ'is

seeking monetary refiefaggregating in excess o$$59,000.00, exclusive of costs, prefudgrnerrt interest and

attorneys &es.

2. H ai t t tHFh a Tems state hank urith a principal oKoc in Denton Conroy; Texas.S

ZKA Jtt TIFP8 %88lKQ PZITDOHACtD$18ttRCRNCV APHJCATM5 FORAt'POPITMtÃ1'0IrItECFIVttm

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Defendant Mcsnt McKan}y overs Estates Horncovtncrs Assochtion ('MeKs}ny BOA") is an I

nnfncorf}tnated f}o}t}eosv}}er's assocfahon. D~t McX amy HOA }nay be served with private process i

of a citation and a copy of'this petition npon the president of McKsn}y RQA'a board, John Skcf ton, at hs

residence, 5020 Abbot, Mfas, Tcsas 7$20$, or wf}erever hemay f}cfear}d.

4. v ofc ndant MGXan}Xan}y Bve}e E}tates Homeowners Association, inc. f"MBQuny BOA

Corp'') h a Texas r}on.p}oGt corpotntfon. 33efentfant McKanry BOA Co berp. inay served svfth privateI

process of,a oftgion and a copy af this petition npo}t fts registered agent, Jof}n Skeiton et VOM I'rcston ! it t

Road, Suite 4IO, Daffas, Texas 7520$, I wf}craver homey be fo}}nd,It}

I

$. Def endant McKatny Devcfopn}ent Con1p!any, Ltd (MGXamy Devefop}net) }s a Texas II

ii ted partnershp. Defendant McKan}y Vevefop}nenk may he served tf} oS• •

}

I • }snd a copy of ths pet}tfon upon it} Rcghtered Agent, ¹tfonaf Registered Agents, Ro„ lti05$8psce I

II

Center, sufte235, Hct}ston, T'exes 770N. I

ti. Vef eadanf %a8ton Jnvest}n ts LLC ("Invest}nants") ' a 7 x as limited ifabiU

company and is the geaeraf partner for Defendant McKarny Development. Defendant &vest}nants may i}e

p 'vate process of a c}tatfcn and a copy cf tf}fs petition tjpon its Registered Aynt, National

Registered Agenl, inc., 16055 Space Center, Suite 235, Houston, Texas 77M2.

7. De f endant Jof}n Skefton.fs an individual who resfd O aff as C' es in Oaffas Coanty, -Texm

P~ i» ~ n ) ~c a dent SQ~~ inay he g~'e pampas or a c}tstion and a copy of ti}fs

petition at his residence, 5tJM Abbot, Vafiss, Texas 75209, or wherever hemay be found.

8. Ven ue fs proper inDentoo County, Texas in thtt, ia acccrdancewith Texas Civil Practice

4 Rc}nedfcs Code gl$.010, thc matter at hand deafs vntf} tftie to reef property and deed tr'

co}}tahed in such titfe.

PL}QRXIFZ% 03RIGIFAL FEA'IIONArtDLMEItGKNCY AFPXJCLTION PC% hPROI}}rIAGPITOF itECIIIVER

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9, On or shoot Any' kl , %03, Ltefendanf McKnmy BoveloJjment fded a docent vnfhm

the Denton Cwnty deed records entitled Oechrations ut Covenants, Conditions and Restrictions tbr

McKmny Evers Estates Phase One (the "Original Deciarationsg The onghlsl Declarations named

McKRpg VcvcJopnent as Deoistezlg the Qrighlei Dcc5k%tions also granted DccfE'f!Hf certeh rights snd

imuted the rights of purchasers of its in the MCKamy Zvers Eshtes Phase I 8ubdfvision, including i)

aothorizing MCKatny Deveiopnent to crinite a honieowners' assooMon, and if) naming MCKatny

Devei6ymeet'S yrJnoiyaI, defendant Skelton, to act as '"chairman" of a board for the hoeteovrner's

associa5w created hy the Original Qeclerations. A tree and correct ooyy of the Original Declarations is

sftached hereto as Mnbit A" and is 8Qfy incorporated herein,

I9. The Qriginat Declarations vere ammded snd restated for the &st time on or abbot

December 29, 20N (the 'First Amended Deohrations"), A tree snd comet ccrpy of the PJtst Amended

Oeolaretiorl is attached hereto as "Mu>it 8" and is fol/y incorporated hereirL Article V, Sechoa 4 of fhe

Phst Amended Declarations sefs forth that amendntcttts to the Fiat Amended Declarations may be made

after thc till enmYersarjj of the Flfst Atnendeti Declarations oolp' Mfh express written Qo.sent of at geest

~~~ g t% ) Of « O ~ & s CS then 8pp08F Of reooig, HEC Ml anniVereakJ OX the l'3t$f

Ataended Declarations would have been Decentber 29, Z008. In the First Ainended Ueefarafions, JOJm

Skefton, the sole rnctnber of the LLC that acts as the ymend prrtner to MCKanty Deveioyntent, Lfd„ the

"Declarant" of the First Anlcnded Declarations, Cyan appointed hirrjseZas Chairman of the Board of'the

Mommy. HOA, Pursiornt to the oriynal Zeeiarations and the Pirst Amended Xteclarations, Skelton

wojiM not be relieved of his pwifion as Chairman of the Board of fhc NaRamy HOA until 1CG34 of the

. lbfs in tho MOKHroy EvEt5 ~ Phas e I SUhdMsi&L wcxo sokL

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I J. D e spite the requhernent contafned in the Rjrst Amended DeoJaratieMr that MeXainy

Devefopinent gain sctpress vrritten consent of at feast seventy (7Ã6$ percent of the Ownws after'

Deceinber 29, 2008, McKamy Develofnnent Red a document entMed "Second Amended Xhxfazstions of

Covenants, Conditions and Rcstrfctiorrs fcr MeXmy Evcrs Estates Phase One" (the%'napinoved Second

Amended Decfarations") on or about March 30,285. A true and correct copy of the Unapproved Second

Amended Declarations is attached hereto as 'Mubft C' and fs fumy incorporated herein, Upon

information and beJJef, thc Unapproved Second Amended Declarations vvere QJed vrfthotit the express

wrhtan consent of seventy PtPA) peromt of the Qeners. Catain rights of "Qvinsrs" of property located

wfthh the McXsmy Evers Estates Phase I Subdivision cere abated by the Aiing of the Unapproved

Second Amended DeoIaraNons. One such change occtss in Aiticfe IV, Section I of the Unapproved

Second Amended Declarations and provides that MaKamy Development and each "Homeovrner as

deined in Article I, occopyhig a residence cn a Jot in McXamy Bvers Estates subdMsion shaH be a

member of the McXarny Evers Estates Hanteowaers Asscchtlan."ArGale T defmes "Homeovtner as "the

owner and occupant of a Iieme on a Jot in the soMivision. Ths change fimn "the Owner of each Iot in

the pdcKamy SvarsEvtates Phase? Snbdiv Jslan] shaB bo s. member of the fMcKamy BOA]" vlonfd have

depdved Owners of'aembemhip in the McKamy HQA; afthough the "one Iot, one vote" provision

comsined in the same attfcforemafited, the section statcsdnrt only merrtberz ln good standing are aJJovred

to vote Jn KwKsmy HOA ass. Ar ticle iV, Section I ~her states that "Su&rcement of Se Deed

Restrictions is the rJght and responsMity of any wvner of a lot fn the snbdfvtsfon.".'EMs change meant

that a bank or other owner of a Jot that had not built a home Jn ths McKamy Evers Bahts PAsse I

SnMyision vras not a member of the homeovrrners' association, and attempted to thrnst responsibihty for

enforcement of dead restrictions upon corners rather than membets of the McXarny Zvois F~

Hrnneovvners Assoofatfrnt. Bath changes noofd directly aIFect pIaMiJT's abiffty to vitiate changes or

enforce deed zestrlotions at the McKarny Bvers Estates Phase I SnbKviYion.

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R The Plajresoayital Kean.

I2. Otr Or about Any' l4 , 20OS, hlcKamy DewehpuMOt executed e. Ptomissory Note (the

"Note" ) vrheeeln McKamy Bovelcpnertt bcrroered the sttnr of $5M,XO,QO &am PfafnSF, ~ by

terenty-trtro Jots h theMommy Beers Bstates development ae collateral (tire "CollatereP). McKerny

Oeveloprnertt also executed a deed of trust uamtng PJ I'rttUF beneii ' . Yhg a as ctar y . The Note was extended seven

times; ou the Qnaf maturity date, ¹vember l /, 2008, Ito extension, ruad@cation, or renewal was

executed, aud MoKrtrny Qcvelopntertt vzas declared in default under the Note. On or about March i9'f

2NS, a demand ~3tas sent to MeXamy IjevalopnMnt to pay tbe irrtount due cn the Note; McKamy

Developrn«rtt faifed and refused topsy such amount upon deruautL',

J3. O n May 5f 2009f a substtttrte trustee's sale was held at the Benton Corntfy CourtborISe,

and Plahtttff credit- urvbas'-purchased Sc eighteen lots still aetitrg as collateral trrtrier the Note (the "McKamy

Lots" ) and therefoxe Js Owner of eighteen lots in NeKamy Bv3ns Estates PJIase I 8ubdieislorL A

substxtute trustee's deed was entered of recorrJ ln the Demton County deed records sbovrhg Haintiff es tbe

ovrtter of the McKtu13y Lots (the "Substitttte Trttstce's BeePI. PI 'ff sufferedstub a dcfxciertey in the

arrtount of $74,N2.66 ettter the rrrnoucts Jtaid by Pfahttff Ierere apltlied to the atnourtts due under the Note

and, on May JS, 2009, PlaintN dentanded such deheiertcy Gem McKamy QeveIopxuent; MeKtttny

Developutont Med aud zeksed to pap'Nrclr atuonnt ttpon denrand. Haintdr'JnunetH bately cyan to ntarkct

tba McKamy Lots for sale to ~e r I ts losses on the -loan and foreclosure of(he M'cKatuy Loa In or

about Brute 2O69, Piata0ff recorded a bona Ma offer San a aroulr of jrotentlat pttrchasers bafbe 'TCB

Puzojxaser~ to urcbase tbep tbe!HcXanyLots, Qn or about My 30, 2009, HainttiFIeas corttacted the PGB

Pvrcbesers, alto stated that, vrhiic Jrcrforruhg due dJBgenee prior to ptrrchasutg tha McKsruy Lots, they

3 It tree ottty dqe atter tbh teererne Sryeyxrreet byptetttSFrhttMeKerrxyiyevejeprnear aneepteftro Netjrethejtymve8aeomtxt Areeoxjett Ireoteretiaete te eraend ke Irttex AruectjeAroeotjett9eeJatsrreesto exehrfe "Oweers" Sorrxrrrembeckfpte

jrrorx eectrto ebett jtereoeevore (Ar&jeIV Seetterr Q,theffeeeobsqgo ArrtehIV ~ rtte Hougetet ters ANeejeboe to pmvidc oxen etreort

y Devejeptueet toeoteed deeteretteee LteS VS% of'der lots werc ceeeyle3t by Eorrteowxrere,4

PLABft'ittr 8 GMC26Q PETITIONASS EttSRCEKcY APHJCATIort FOB APPONTKKI'QPRKCKVRR

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ftad discovered that the MeKangr Heneowners Assocfatfon eras h «Bsarray, tfrat they rescinded the ofkr

eontafrted in tfte Safe Corrtract,

ICa The MeKBnQ.Evars Estab Haneown8zs AssQcfQfien. Ej

J.4. Pla inttTf frrtrnedfatefy began to research conditioxl at tfM McXarrry overs Zsfate and the II' '

ÃcKamy Ebs Estate Romeotvners Association. PJafrrffff discovered tftefoffotvfn~t

iMcZatny BOA vras fnstfttraxl on orabotrt Jufy J,20f8;

McXanty BOA Corfu„a 7exas norr-profit corporation, vras incorporated on or about July i

I2299 z2, 2093, A true and correct copy of the hfcKamy HOA Corp.'s Artfcfes of Incorporation i i

i

are attached hereto as "Jfxftfbit D" and are fuf Jy fncorporated herefrl,'i

• Vc Xarny HOA Corp. forfeited its charter with the Texas Secretaryof State's office on or

Iabout May 27, 20{5 for a faf Jure to satisfy ftarrcMse tax or fifinff requirementswftft tfte ! j

Texas Cmnptroffer of Pubffc Accourtfs;

INO reinatatemeat Of the MCKamy HOA COrp,'S Charter haa bean flied and, aS of the date 1

of this Petition, the cftsrfer is stiff itl Ehfeft;

• The Twas Cornptroffer of Pabtic Accoorrts determined @at fhe McKarny HOA Corp, did tL'r

not have assets Jrotn taftfch a Judgatent for any hx, penaity, or court costsimposedby 'j

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Texas Tax Code Chapter J7I may be satisfied;S!

I5e I'J afntffV furtfter discovered that condftfons at tfN MeK&tny ~+vers BsQltes were Rs

rmfa'attic's pe'changers had stated. It te p/1st Arnemfed Deefaratfons state that hfcKaruy HQA's

II •

respomMfftfes inofude Q tire coffectfort of dues fmm Jtorneovrners vrfthJrr the McXaxrry IIvcrs Bstatesand II

fi) use of tfrose fnnds to Snd the McKarny HOA's resyonsiMJfttes under the Second Amended It

2)eolaratfon; "to prolnote the generaf welfhre of the subtffvisfon by aint fn t h J cf scarn tnn g e sn pm f , anti

'iIdefined h the Second Atn eededDelataQans as an "oelter end oeoepeet" of a horse on 8 fotin the hRRarry SvorsIhhsee Pfetre

2 The AssayXIOA Qnp ts norrefereaeedia the Mgfeef DaehnAns, the Fhat Areendedtsccferetfona, orth: secondAmended Becharatfrms as e Team rtonprotft corptratfcn. See Tea, Prep, Code ff 2ait NS. IP4gÃlliP'8 GRICPJAL PETETlOÃ ' 1 iAÃB RMERGEfifCt' APPEJGA'PIOtt PORhFPOIÃVdn57 rrF RECEIVER PAGES 1

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signage at the entry, l'sndj ntaintaining the perimeter fencing and the detention pand." PlainNFi'

discovered that aJJ of these duties had been rgncred by McKarny HOA. See ARidavit af Doug Cook, !

Iattached hereto as "HxMbit 3" and incorporated fa Jiy herem.

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CAUSES OP SCHONi

COUNT OWE

JJXCLARATC>RV AJBCMKNT

J4, . PJ@nti6'Jtereby incorporates the factad aiiegations coatahed in Patngraphs 9-15 as if sett

forth herein! !

J5. Pur suant to the Oechratory Rdynsnta Act, Tex. CJv. Prac. k; Rem, Qxfe Ip7.00J et. fi

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seq. jtlte "Deaiaratary Sudgrnents AcP), Plmatiff cepests that titis Court determine the foJIawr'ng." !

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Mether the dacuraent entity "Second Amended Deaiarations" ~as Bled with thei

required consent af comers of property Jn McKamy Evm Bstates Phase I' Subdivision; I

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• %Jtetiter the deed restrictions contained in the documententitled "Second Amended t II

Deci arntioas" are enfarceab Je deed restrictions upart the Jrroirerty located Jn the McKanty

Bvers Zstates PJrasa38nbdivision, IAccordingly, PJaintJFrequests that this Court issue the deaiarataryjtrdJJrnents above. f

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=665T ~ Vr'0l!

VlOKATXON OP TP878XCTIVE CGVRNAXXS!

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(MCKAISY BKVELOFiiERT, 8EEI TON PfVESTMZNTQ LLC) !

16. PJ aintiffhereby incorporates the factuaJ aiiegatians contraned in Paramraphs 9-JS as if set f!

forth herein. PJaintHf br Jn@ this cause of action as a record tits owner of property in the McKamy EversI! !

Bstates Phase 7 Subdivision. t !

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t [PLhPCIPFS OKCJsthX, tETZIIORA59 IHJiitSRÃCY APPXBCA'DOR FORAPPONT18RÃT QF RZCZYVÃR

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37. A i f ernativeiy, or m additfon fo the foregohtg, as set forth above in more riefaii, Jv&Xamy

Devekgnient, Ltd., by snd througit its general partner, Skeifon @vestments, XZC; fhe "30eaiarant" of the

First Amended Deoisrafions, violated the provisions of the First Amended Declarations eben it:

i) iunended the first Amended 13ecissatioris without the express written consM cf seventy

(7PA) percent of the Owners of property in ke McKamy Rvers E'jtafes Phase T SuMJvision;

Ji) fai led to coHect or properly use dues or assesstneuts as set forth in the Hat Amended

Dcciarafiotjs; and

iii) nts intain the Jandscaphig and signage at the entry to the McXamy overs Estates Phsrre i

Subdivision, including maintaining the periincter fencing and the detention pond cn the property.

Such faiiure to enforce restrictive covenants contained in the First Amended Deciarstiuos ts a vfolrrnon,of

the First Amended Declarations, and this Court has jurisdiction over this cause of action pursuant to Tea,

Prop, Code g 202.603 et, seq, Further, Piainfiff, as an ovtuer of real property contained in the MoKrrrrjy

Ever Estates Phase J SUMvisJoxt { PlalntiG s Pf~g ha s &e right to initiate litigation Bootingthe

enforcement of a restrictive covenant affecting HaintifT's property. &eh violation of the resbtctive

covenants above have affected RaJabfPs Property since May 5, 2009, when PiabrM becanie ovrnei' of

PiainttA's Property. Thus, Phintiff requesfs thgt tMs Court find for FlaintiJE and award to Plaintiff

statutory damagesJn the amount of 3200.00 per day, pre- and post-judgment interest at the maximum

aliowabieamount by iavr, and costs Jocund lo the prosecution of fihs mat',

COUÃX THREtI'

GEON ÃZCIJGENCE

{JOHN SKKK TON)

18. PJanrtiff hereby nrccrpoiutes.the factual sliegufions coufained inMagrayks 9-7$ as if set

forth herein. Piruntiifbrings this cause of actirur as a record title ovrncr of property m the McKaay overs

7>fates Phase E8uhBvision, and a rnernher of the McXamy HOA.

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Lk A~ vely, cr In addition to the foregoing, as set forth above in more detif, John

Skelton, the sole member of the LLC that acts as thc general pgrtner to McKstuy bevefofnuent, |.td., the

"Decflsnt of the Fhst Atnended Xtecflatiocs, afrpointcd Mmseff as Chairman of the 3oard of &e

McKamy EGA. Sfrefton, as Chafrinan of the 3osrd of the ¹IGuny BOA, owed certain duties of

performance of his fiosiYion to the McKamy HOA. Kce'Iten neglfgently or recklessly breached those

duties by faiffng to:

0 Mahttafn the McKamy HQA Coip. by Bffngrepcsts, fncotne orfimcMsctaetreturns, snd

other docutnentation required by lss', including tefnststsutent of the ucn-proS corporation's

charter with the Texas Secretary of Stats;

i i) M~ the co rmnon areas uf the >VlcXamy overs Zsfafcs Phase I SubdivisionincfudfnE,

hut not ftunted to, the fandscapfng and sfguaga at the entry, Iandj maintaimng the perimeter

fencmg and the detention p'ond; aud

16) C o l lect, account for, and properly use the hotneownerslue set forth in the Pirst Arucnded

Declarations.

R. Ss r thcr, Skelton's actions involved an extreme degree of risk, given the probability aud

tnagnittitfc of datnages to be suffered by the property owners of McKamy overs Estates Phase 1

Subfivisicn. Additionally, Skelton had actual, subjective etrarcness of the rfsft to the propcity owners of

McKanqr Evers Estates Phase 1 S!bffvisfon but fneeeedcd with conscious h4fRreuce to the rights,

safety, or welfare of others. As a rcsnft of Sftcftnn's negIigence fn performing Ms duties as Chshtnan cfI

the McKainy BOA, Pfsintig, sir ovmer of property contained within the hfoKarny Evers E@afes Phase I

tSubdivfsfon and a member cathe McKamy HOA, has been damaged vrfthin the jar&ictionaf aaowanoes I

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of this CourL Plaintiff rtxfuests that this Court 9nd for Phunti6; aud award to PfafnQF its actual and

exercpfary datnages, pre- and post j udynent interest at the rnsxhnum affovrabfe amount by fa~, and costs

incurred in the prosecution of this suit,

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COUÃZ POUR

ATTORNEYS' I FKES

21. FJa fntf6'hereby Incorporates the factuaJ affegatkFns eontahted fn Piragraphs 9-1 $ as if sot

&rtb herein. Plaint''brings ttus causa of action as a record tftfe oener of property in the MaKatuy Bvem

Estates Phase I SuMivision, aTFd a meFnber of the McXmy BOA.

22. A s a prmimate xesuft of the Defendant'a actfons, Pla'uISf has been required toretafnthe

undersigned attorneys to prosecute its ofahns, and has ngicad to pay them a reasonaMc fee for their

services. PhintifF hereby sues the Defendant for the recovery of Plaintiffs reasonaMc trial said

conditional aypef Jete attorneys' fees in aMion to its actual damages.

%HEREIrORR, PRKHISRS COÃQBKRX9, the PfafMÃzespeetfjufly reFJussjs that Defendant

be cited to appear and anseer heiuin and that' upon%ed trial or hearing of ttus case, M Court outer

judgnieut in faVOr Of Pfafntdf and against Defendant, that Plaintiff may have and recover its arjuaJ and .

consequentiaJ djunagea, exempfary dejnagas, reasonable attorneys fees, Jftfgatfcn expenses, pre- aud post

judynent Jntereat at the XcaXimuuI JaWfuJ rateS, and that PJairitiÃbe aearded Such Other aud RrOFer relief

to whtch3'JamtftI'may prove itself to be justly entitled.

EMUÃWNCV APPLICATION 70R APPOINTMENT 07 RZCRFFZR

23. P f ahfQF hereby fneorporatea the ~ a H egstfons contained in Panigraplis 9-22 as if

My set forth h@& Pfa@SP~ma'xasm appffcailonas a mnkr of the hFicKaey HOA.

24. I n addMon to Se fmgcing or fn the ahernative, 1'faintly hereby appHes fcr au order lrom

thfs Cctut appointing a receiver for MeKamy HOA, in accordance with Texas Civil Practice 5 Remedies

Code fj 54.001. In support of its applicatiou, Pfaintf5'would shoe that 1) McKamy BOA ia insolvent or is

ftt JBltufneut dangerof insolvency;ff) McIGlBQ' BOA hss forfeited its corgQBCe lJghfa,' ill)MCKainf HQA

has faHed to pedortn those duties imposed upon ft by theeovenants, conditions snd restrictions cont&ed

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in the Original X7eciarsdons snd First Amended Deciarations fcqDeodveiy referred to ss the

"Veeiaratiuna"2. Pinery, PiaiahF WOnfd ShOW th@aS a direot reanit Of MCKarny BOA'S ferfeitere and ! I

faiture to perforln fhose duties set forth in the Decisrafions, HaintIF has strad and is in conrnrmng

danger of srrfFering mate68 injrrry as described above. For these reasons, PiaintBF respectMly requests

that this ~ e n ter an order appointing a receiver, subject to the ccetrol of the court, with the autirority

to act as foiiovjs:

Exercise aH povrer and authority granted by the Deoiarations to McKamy HOA,

ii. Take possession of ati MommyBOA's property, inciuding but not Iimitcd to fhe

conlpRp s bnsiness md QBBncIai records'

iii, Ta i re any and aft actions neoesluv to reinstate McKsray BOA's irrcorporated

status vrith the Texas Secretary af Sate;!

iv. Tair e any and sii actions necessary to coHeot nord dues and fees ovred to !

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Meany BOA;

v. Fro m the delinquentdues and fees coiiecfcd, pay for needed repairs, rnaintcmrm !

and upkeep fo the commorr areas of fhe McZarny' Evers Estates Phase E r.

SuMivh ion irr accorrtance with those duties imposed upon McKanry BOA by theI i!

Declarations; snd !

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vi; Pr epare and itic in the Denton County hrnd records any deciaration, covenant,!!

condition oq rssfdction needed to ~titate fhe creation of s functioning Ho!ne!

Owner s Association gbf 'the M~ RYB fs Estates Phase E SubdtvtsrorL '!!

25. B e cause the absence of a frnrctioning HOA continues to cause rnateriai injury to PirintUF !

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and aH others that own property in 5e trfcKamy Zvels Estates Phase E Subdivision, i'JaiMifT'seeksiI

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appohbnent of a receiver on sn tenergeney bans. Jn support of its Application, PIainM' prefers Se

AfMavit of douglasCook, which h attache heteto as Etdtibit 3and hjs been previomIy incorporated.'RQGMCFO~ PREMISES CONSjBXRRD, tire Haintiff respectfully requests that Hie Ccurt

grant PlairtNPs-Eroergency AppHcatfort for Receiver and appoint Receiver as set forth above; and for aH

such oth!r and further relief to vlhieh PMntfWrnsy prove itself to be justly entitled.

Respeotfidly auhnkted,

BASVBNjit: IVKAPro ration

By;B)izahetit Basdan84ae Bar No. 24094917John Jvie%A Bar No. 24N2463iV9M Dtdlas Pariqjjjay, Suite 3$60IhHaa, Texas H248972,98I,S709 diaphone)%2.248.94N (facsimBefA,TTORNEY FOR PfrAZNTfFFPEAINBCAPFl'AL SAÃK

PKANDIrP8 ORNIKAI Pal'PROXh?% EtfERGRHCV APFL'ICHOR PORAPPOItjtTRFÃTOS' RECEIVER

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OFIQLCAUSE NO. 209%M29$-BID

PLATNSCAFITA L BANK IW THE D1$TRECT COURTII 4/yepg~

Plaintiff, ii J

tCz

VS i

t IMCKAMV EVERS ESTATES HOME0%iVERS i

ASSQCIAY$ON, MCKAbf Y EVERS ESTATES ('

HOMEO%N RRS ASSOCfATfON,! ÃC.,M CKAM Y PEVELOPMEM' COMPANY, LT9„ tiSKELTON NVESTM EATS, LLC, AND JOHN

tSKRf TON ci I

Defenftants, BENTON COUNTY, TEXASi

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TO THE HONORABLE JUDGE OF THE COURT:

Plaintiff PLA)NSCAPITAL BANK ("PlsmtN") f tles this its Motion for Entry of Final Judgment tt tfi i

by Default and Declaratory Judgfnent (the "Motion ) and in support of said Motion would show the CourtI

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the following: If

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On September I5, 2009, Plaintiff Bed vrith the Court Its Original Petition snd I i

Emergency Application for Appointment of Receiver against MCKAlvIY EVERS ESTATES t

HQMEOtJtf NERS ASSOCIATION P M cKarny HOA"), M CKAM Y B V BRS E STATES IHOMEOWNERS ASSOCIATiON, lNC. QHcKsrny HOA Corp.), MCiG~MY DEVKOPM.NT I

i

COMPANY, LTD, PMcKamy Development+ SKFLTON INVESTIvIENTS, LLC ("lnvesttnents"), and I

JOHN SKELTON ("'Skelton") alleging violation of restrictive covenants and gross negligence and i

requesting a deoiaratoty judgment seeking recovery of money damages with pre- and post-judgmenti

1interest and attorneys' fees, I

1

2. The reaAer a private process server served each of the Defendants arith the Citation aad aI

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true and correct copy of Plaintiffs' Original Petition and Ned a Service Return AITidavit with the court. i

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%10rloiW $0R EÃrRY Gtt ANAL JUDCMENTfry 9RPAtiLT AÃb MctARATORY JLOChfENT EXHIBIT

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!According to the Service Return Affidavit on fife with the. court, McKarny Evers Estates Homeowners

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Association was served lvfth process on September 24, 2009; McKarny Evers Estates Hojneowncrs

I IAssociation, 'fnc. was served with process on September 24, 2009; Moxa jny Devefapment Coinpany, Ltd. I

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was served with process an September 18, 2009; Skelton investments, Li.C was served with process on

September f8, 2009 and'John Skelton was served with process on September 24, 2009.

3. Pur suant to Rule 99(b) of the Texas Rules of Civif Procedure, McKamy Evers Estates

Honmowners Associationwas required to answer or appear in the lawsuit on or before October 19, 2009;

McKarny Evers Estates Homeowners Association, inc. was required to answer or appear in the fawsuit ont

or before October 19, 2009; McKamy Development Company,Ltd. was required to answer or appear in i k

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the lawsuit an or before Or tuber 12, 2M9„SRefton fnvestrnents, LLC was required to answer or appear ini Ij l

the fawsuit on or before October 12, 2009; and John Skelton was required to answer or appear in the

fawsuit on or before October 19, 2009. As of the date of this Motion, none of the parties has Sed an Ianswer or made anappearance in this case,

itI

4. Pur suant to Rufe 107 of the Texas Rufes of Civil Procedure, the Returns of Service for

McKamy Evers Estates Homeowners Association, McKajny Bvers Estates Homeowners Assocfaffon,r

inc., McKamy Development Company, Ltd„Skefton investments, 1,l.C, and John Skelton have been on ft

Ik

file with the Court in excess of ten P 0) days prior to the filing of this Motion. Accordingly, pursuant toI

k

Rule 241 of the Texas Rufes of Civii Procedure, PfaintitT is entitled to a Judgment by Defau! t and:ar a k

Declaratory Judgmerjt by Default. ln support of thb Motion for Entry of Final. Judgment by Default and

Declaratory Judgment, Plaintiff submits its Ceztfficate of Last Known Address for a1f defendants and its k

Affidavit of Elizabeth Basden on Servicernember Status for Defendant John Skelton as "Exhibit 1,"

Iwfjfch is incorporated herein for aff purposes. r'

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5. ln su m mary, PfafntfF caused Defendants to be properly served; Defendants Mcxajny kI

Bvers Estates Honjeoe tners Association, McKamy Bvejs Estates Homeowners Association, fjjc.,

I

MOYlajkj FOR KVTRVOF FVfAL JUDGMEj kjY

SVOEFAUt.j Arkjn DECLhiM'TQRV JLCIGikttrrrr likkge S I

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McKamy Development Company, Ltd., Skelton Investjnents, LLC, and John Skelton have each faiIed toi j j

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answer or appear in this case. Accordingly, PIaintN' is entitled to a Judgment by Default and for a

Declaratory Judgjrjent by Default against Defendants McKatny Hvers Estates Hameotvners Association, t

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McKamy Bvers Estates Hotneowners Association, inc., McKamy Development Company, Ltd., Skelton ii!

Investments, LLC, and John Skelton.

WHEREFORE, PREMISES CQIjISIMRZB,'Plaintiff respectfully requests that this matter be

set upon the Court's docket and upon finaf hearing, grant this Motion, and enter a Final tudgjnent by

Default against MoKanty Evers Estates Honjeowners Association, McKamy Evers Estates Homeowners

IAssociation, Inc., McKaIny Developjnent Company, Ltd., Skelton Investments, LLC, and John Skelton

and gntnt PJaintiff a Declaratory Judgjnent by Default and along with such other relief to which it msy be 5

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justly entitled. i

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Respectfully submitted, 1j

C

B ASIN 8j: I P.C .C

Ij I

jj

jElizabeth BasdenState Bar No. 240343 I 7 I f" '

John Ivie I j '

State Bar No. 24032463I73% Dallas Parkway, Suite 3I60 l

Dallas, Texas 75248 t

912.38I.8700 telephone) I9/22AS.9405 Oacsijniie) jI

ATTORIjIEYS FOR PL AIJjl TV'F j

PLA,HV'SCAPI'FAL BANK

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vo,-~O,'- - - " ' "

. ..p=,ov c«'"" "

CAIJSXWa~eti~y y I IW8 8 ~i

' ~lpga.vPLAINSCAI ITAL BANK

ySYrll-"""

IPIaiutIS,

fey Ivs. I

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MCKAMY RVERS ESTATES HOMZO%NERB 2$X™ JUBICIAI DISTRlCTASSOCIATION, MCKAMY EVERS ESTATESHQME9%NERS ASSOCIATION, EÃC.,MEANY 3EV EI.OPMZNT COMPANY, LTDSKELTON fÃVESTMKHTB, LLC, AND JOHNSKEI TON

Defendants. BENTON COUNTY, TEXAS

RLOCUTORV 9 AUI,T $03GMENTAS TO LIABH,LITY

Carne on this day the Phinti8'PLAINSCAPITAL BANK on its Motion for entry of iriterlocutory

Default Judgment As to Liability (the "Motion"} filed in above-styled and mnnbered cause. Based upon the

pleadings filed herein; the evidence estaMishlng the proper service of the citation and the original petition I!

upon rhe Defendants MCKAMY EVERS ESTATES HOMEOV/NERS ASSOCIATION, MCKAMY

PfERS ESTATES HOMEOSNERS ASSOCIATION, INC„MCKAMY DEVELOPMENT COMPANY,i

LTD., SKELTON INVESTMENTS, U.C, and JOHN SKELTON, the returns of citation having been on file !

with the court for at least ten (10)'days as of the date of this Judgment; the uncontroverted aBegations ini

Plaintiff's Original Petition and Plahdrr s Motion and the evidence st. t ted therewith; and the absence of i

any ansvler, response or appearance in this suit by Defendants, this Court finds that based upon the evidence! lI

presented, an interlocutory default judginent on the issue of llabiBty in favor of Plaintiff and against I

IDefendants should be entered.

IT IS T H EREFORE ORDERED, ADJUIMED ANQ D ECREED by t he Court thatr

PI AfNSCAPITN. BANK shaB have judginent by default as to l i ability against MCKAMY Ii

DEVELOPMENT, LTD. and its General Partner, SKEI TON INVESTMENTS, LLC for violations of the Irestrictive covenants identified in Plaintiff's Original Petition as the First Amended Declarations. t

I EXH IBlT

rhea'8 u r oav JunCMEVr rrv DEFAUf.v

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iT lS FURTHER ORDERED, AO3UDQE9 AND DECREED that K,AINSCAPB'AL BANK shafi t

have judgment by defauit as to liabiiity against SOHN SKEI.TON, for gross negligence in the perrorrnanceI

II

of his dutIes as Chairman of the McKarny Evers Estates Horne Ovrners Association. i.

SIQNBD oo this I h dsf of f A . .

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, 2010.

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rh"rKR C \r JU % lire BY DKF ULT if

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CAUSE NO. 200it-302%41 1

P I N SCAPITAL BANK

PfrrfntffE

vs

IfMCKAMY EVtrRS ESTATES HOMEOWNERS f 231 J U &IC1AL VESTRKTASSOCtATION, MCKAMV EVRRS ESTATESHONEQRNERS ASSOCIATION~ INC~MCKAMY DFVELOPMENT COMPANY, I TD

SKELTON INVESTMRNTS, LLC, ANO J'OHNSKELTON lr

ItMenrtants, ,it DENTOID COUNTY, TEXAS

MOTION FOR ENTRY OF lNTEIKOCUTORY MFAULTJUDGMENT AS TO LL4MLITY AND DECLARATORY JUDGMENT

Plaintiff PLA1NSCAPETAK, BANK ("PfafntffP) fifes this its Motion for Entry of Jrrterfocurory

Default Judgment As to Liability and Declaratory Judgment (the "Motion" ) and m support of said Motion

would show the Court the following:

l. On Se ptember l9, 2009, Plaintiff fried with the Court its Originaf Petition and

Emergency Application for Appointment of Receiver against MCKAfvfY HVERS ESTATES

HOMEOV/NERS AS SOCEATION (' M cKarny B O A"), fv f CKAMY EAR S EST A TES

HOMHOVfHERS ASMCEATKrN, INC. (McKanry BOA Corp,>, MCKAMY 08VELOPMHNT

COMPANY, LTD. {"MeKamy Development" ), SKELTON 1NVESTMENTS, LLC ("investments'Q and

JOHN SKELTON (" Skelton" ) afleging violation of restrictive covenants and gross negligence and

requesting a declaratory judgment seeking recovery of money damages with pre- and post-judgment

interest and attorneys' fees..

TfrererrAer a private process server served each of the Defendants with tile Citation and a

true and correct copy of Plaintiffs' Original Petition and fried a Service Retrrrn Affidavit with the corrrt.

According to the Service Return Aftidavit on frle with tfre court, McKamy Hvers Estates Homeowners

Trovsorr YOFD R . r' r Junc st rrr EXHfffrr

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Asf'ociation was served witJI process an September 24, 2009; McKamy Evers Estates Hameowncts

Association, Jnc. was served with process on September 24, 2009; McKamy Devefopment Company, Ltd

was served with process on September 18, 2009; Skefton Investments, LLC was served with process an

September 18, 2609 and John Skelton was served with process on September 24, 2009

3, Pur suant to Rule 99(b) of the Texas Rules of Civil ProcedIIre, McKamy Evers Estates

Homeowners Associatfon was required to answer or appear in the lawsuit on or before October J9, 2009;

McKamy Hvers Estates Homeowners Assocfatfori, Jnc. was required to answer or appear in the lawsuit on

or before October f 9, 2009; McKamy Devefofment Company, Ltd, was reqmred to answer or appear in

the lawsuit on or before October 12, 2009; SkeJton investments, LLC was required to answer or appear in

%e lawsuit on or before October 12, 2009; and Joftn Skefton was required to answer or appear in the

lawsuit on or before October 19, 2009. As of the date of this Motion, none of the parties has ftfed an

answer or made an appearance in tftfs case,

4. Pur suant to Rule 107 of the Texas Rules of CiviJ Procedure, the Returns of Service for

McKamy Bvers Estates Homeowners Association, fvlcKamy Bvers Estates Homeowners Association,

Inc„McKamy Development Company, Ltd„Skelton Investments, I.LC, and John SkeJton have been on

fife with the Court in excess of ten (10) days prior to the filing of this Motion, 'Accordingly, pttrsuant to

Rule 2dfi of the Texas Rules of Civil Procedure, Plaintif is entitled to a default judgment as to

Defentfant's liability and for a declaratory judgment by default,

5. Jri s ummaty, Plaintiff caused Defendants to be properly served; Defendants McKaTny

BVera EStatCS HOIneOWnerS ASSOCiatiOn, MCKamy BVerS EStateS HOmCOWnera ASSaaiatian, fnCts

McKamy Development Company, Ltd., Skelton Investments, LLC, and John Skelton have failed to

answer or appear in this case; and PfafnNF has provided the Court with evidence supporting those cfafms

sflcged m PfafntifTV Original Petition through the AAidavit of Steve Greenleaf, a true and correct copy of

said atyrdavh is attached hereto as ~Exhibit " " snd is ineerprnated by reference as it tblly set hrrth

herein. Acconffngfys Pfaintià is entitled to an Interlocutory default judgment as to liability and a

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decfaratory judgjnent by detauft against Defendants McKajny Evers Estates Hojneowners Association, j I

5

McKjnny Evers Estates Homeowners Association, inc., MeKamy Developjnent Company, Ltd., Skelton5

Jnvestjnents, LLC, and John Slrefton. f

WHEREFORE, PREMJ'8KS CONSJBKRE9, Plaintiff respectRJJy requests that the Court5

!grant tMs Motion, and enter an Jnterfocutory judgjnent by defauJt on the issue of fiability against

I

McXamy Evers Estates Homeowners Association, JjjJcKarny Hvers Estates Homeowners Association, 1

5 5

5inc„McKamy Development Company, J.td„Skelton investments, LLC, and John Skelton and grant

Plaintiff a declaratory judgment by default snd along with such other relief to which it jrjay be justly

entitled. Ir I[j i

Respectfully submitted,5 I

N ill; JVJE, P.C.

)

B e t h Basden i

S e Bar No. 240343 l 7 I1

John Jvfe 5

State Bar No. 24032463 j

l 7300 Daffas Parkway, Suite 3160Dallas, Texas 75248

5

972.381.8700 (telephone}972.248.9405 (facsirniJe)ATTORNEY JroR PLPJ YHFFPIAJNSCAr'O'P2 R4NK

5 l} f

ij '

jE i

fGTtojs FOR Ejirrk OF nsFAUI,"r JUDCFM Fagrsi

5

ti\5 i

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02/25/2010 03 :18 FAX 2]45218013@003/008

I„"ii O'D

CAUSE ÃO. 2D09-30298-211XIII>FE8~~ -~~

PLAINSCAPITAL 8ANK IZ TIIZ PI)TRICT CP~0'i:

Plaintitt,

gY

MCKANV RVRR8 KSTATRS HOMI i'.OWNRRS 2'I )"" SUMCIAL DISTRICT

ASSOCIATION, MCKAMY KVRRS ESTATESHOMEO% N KRS ASSOCIATION, INC.,MCKLMY DEVELOP!MRNA COMPANY, I.TD

- SKEET~ IK V R STMKNTS, LLC, AND ZQRNSKEL>TON

Defendants. BENTON COUNTY, TEXASI

FINAL JUDGMENT SV DEFAULT

Came on this day the Plaintiff PI.AJNSCAPITAL BANK on its Motion far Entry of I:inal Judgment

by Default and Declaratory Judgment (the "Motion" ) filed in above-styled and numbered cause. Based upon

the plesidings filed herein; the evidence establishiiig the proper service of the citation and thc original petitiori

upon the Defendants: MCKAJvIY EVFRS ESTATES I-IOMI".0%'NERS ASSOClATION, MCkAlviY

EVERS ESTATES JJOMEORNERS ASROCIAT]ON, JNC, MCKAMY DEVELOPMENT COMPANY,

LTD., SKELTON INVESTMENTS, LLC, and JOHN SKELTON, the returns of citation having been on file

mth the court for at Jeast ten (IQ) days as of the date. of this judgment; the uncontroverted allegations in

Plaint' 's original Petition and PIaintifi's Motion and the evidence submitted therewith," the Interlocutory

Default Judynent As to Liability already entered in this case: the testimony of PlaintHt e representative

Stephen Qreenleaf; thc tcstirnony of John Ivie regarding Plaintiff's reasonable attorneys fees; and the

absence of any answer, response or appearance in this suit by Defendants, this Court finds that a fina(

lJudgingnt by default in favor ol'Plaintiff and against Defendants should be entered.

EXHJBJT

FfNAt„ I IDE stiR5 r BY nasAui.'r

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02/25/2010 03 :17 FAX 21452180]3lgj 004/009

IT IS THEREFORE OROERFD, AMUBGED AND DECREED that FLAINSCAPITAL BANK

shall have and recover from MCKAMY DEUBLOPMENT, LTD. and its General Partner, SKELTON

INVFSTMPNTS, 1.LC, jointly and severally, the antcunt of $58,200.00, aiong with pre-judgtnent interest in

the atnount of $916.03, up to and including the date of this judgment.

IT IS FURTHER ORDERED, ADJUDGED AND DRCRERD that PL INSCAPITAL HANK

shall have and ra~ver I'rom JOHN SKELTON, the amount of 8

IT IS FURTHFR ORDERED, ADJUDI I!.9 AND DE C R E ED t h at PLAINSCAPITAL BAN K

shaH have declaratory judgment as follows;

Thc Second Amended and Restated Declarations of Covenants, Conditions and Restrictions for

tvlcKaTny Evers Estates Phase One, A Subdivision of Benton Texas, recorded as Instrument

Number 2009-37451 on March 30, 2009, with the Denton County Clerk are hereby declared!

void and of no Iega) cA'ect;

2. The Amended and Restated Declarations of Covenants, Conditions and Restrictions for

McKaxny I.vers Estates Phase I, A Subdivision of Denton, Texas, recorded as Instruntent

Nurrtber 2003-206804 on December 29, 2003, with the Denton County Clerk are hereby

declared void and of no legal effect,'

IT IS FURTHFR ORDERX<0, ADJUDC~FD AND DKt„REED that PLAINSCAPITAL BANK

shall have and recover from MCKAM Y DEVEL(3PMENT, I.TD., SKFL TON INVI-.STMI.NTS, I.I.C, and

HOHN BKBI-.fOH, jointly and scveraHy, attorneys. fees~ the amount-of 425;588,00; along with costs of' . .

court in the amount of 51,674 18.

IF IS $'URTHRR ORDKRFD, AMUDGED AND DECREED that PLAINSCAPITAL BANK

shall have and recover post-judgment Inter st on the damages awarded herein at the rate of S.0% per annum

from the date of this jud-ment.

IT IS FURTHER ORDIrRED, AMUDC'FD AND DECREED that PI.AINSCAPITAI, BANK

shall hereafter be entitled to any and aII writs, processes, orders, and other relief avail t' Texas law

for the'enfor cment and collection oi this judgment and/or associatedjudgment liens.

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COUR T O F A I ' P E A I , SS ECON D D I ST RI C T O F T E X A S

CHIEF JUSTICE CLERKTIM CURRY CRIMINAL JUSTICE CENTERTERRIE LIVINGSTON DEBRA SPISAK401 W. BELKNAP, SUITE 9000

FORT WORTH, TEXAS 76196JUSTICES CHIEF DEPUTY CLERKI EE ANN DAUPHINOT MEAGAN POLKTEL: {8ITJ 884-1900ANNE GARDNERSVE WALKER FAX: {817) 884-1932 CHIEF STAFF ATTORNEYBOB McCOY LISA M, WEST

wan.2ttdcoa.coutts.state. ttt.usBILL MEIERLEE GABRIEL

August 19, 2010

Elizabeth BasdenBasden 5. fvie, PC17300 Daltas Pkwy., Ste. 3160Dalfas, TX 75248

Jason W. MalmbergLtoyd Ward 5 Associates P.C.12655 N. Centraf Expy., Ste. 'l000Datlas, TX 75243

RE: C ourt of Appeals Number: 2-10-192-CVTrial Court Case Number: 2009-30298-211

Style: McKarny Evers Estates Homeowners Association; McKamy EversEstates Homeowners Association, tnc.; McKamy Development

Company, Ltd.; Skelton fnvestments, LLC; and John Skettonv. PfainsCapital Bank

Dear Counsel:

The judgment of the triaf court in the above cause was dismissed today. Copiesof the opinion and judgment of this court are hereto attached.

Respectful ty yours,

DEBRA SPtSAK, CLERK

EXH lT

IDCD

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NO. 2-'IO-192-CV

McKamy Evers Estates From the 21'Ith District CourtHomeowners Association;McKamy Evers Estates

Homeowners Association, Inc.; 5 of D e nton County (2009-30298-211iMcKamy Development Company,I td.; Skelton Investments, LLC;and John Skefton 5 A ugu s t 19 , 20 10

V.

PlainsCapitaf Bank Per Curiam

JUDGMENT

This court has considered the record on appeal in this case and holds that

the appeal should be dismissed. It is ordered that the appeal is dismissed for

want of jurisdiction.

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COURT OF APPEALSSECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-1 0-192-CV

MCKAMY EVERS ESTATES APPELLANTSHOMEOWNERS ASSOC IATlON;MCKAMY EVERS ESTATESHOMEOWNERS ASSOCIATION, INC.;MCKAMY DEVELOPMENT COMPANY,LTD.; SKELTON INVESTMENTS,LLC; AND JOHN SKELTON

PLAINSCAPITAL BANK APPELLEE

FROM THE 2$1TH DISTRICT COURT OF DENTON COUNTY

IIEMORANDUNI OPINION"

On June 17, 2010, we notified Appellants that this court may not have

jurisdiction over this appeal because it appeared that the notice of appeal was

not timely filed. We stated that the appeal would be dismissed for want of

'See Tex. R. App. P. 47.4.

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May 20, 2010, see Tex. R. App. P. 26.1(a), but Appellants did not file their notice

of appeal until June 11, 2010.

The time for filing a notice of appeal is jurisdictional in this court, and

absent a timely-filed notice of appeal or extension request, we must dismiss the

appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v, City of Houston, 976

S.VV.2d 676, 67? (Tex. 1998); Verhurgt v Oorner, 959 S.VV.2d 615, 61? (Tex.

1997); Chilkewitz v. Winter, 25 S.VV.3d 382, 383 (Tex. App.— Fort VV'orth 2000,

no pet.).

Accordingly, because Appellants' notice of appeal was not timely filed, we

dismiss their appeal for want of jurisdiction. See Tex, R. App. P. 42.3(a), 43.2(f).

PER CURlAM

PANEL: VVALKER, MCCOY, and MElER, JJ.

DELIVERED: August 19, 2010

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