Preview
-242799
MANUEL REYES IN THE DISTRICT COURT
Plaintiff,
328TH JUDICIAL DISTRICT
WENDY HERNANDEZ, DIANA M.
CASTANO AND ALEXANDER VAIRAS
Defendants. OF FORT BEND COUNTY, TEXAS
WENDY HERNANDEZ REPLY BRIEF TO MOTION FOR SUMMARY JUDGMENT
AGAINST DIANA CASTANO
TO THE HONORABLE JUDGE OF SAID COURT:
Pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, Wendy Hernandez files
this Reply Brief to Motion for Summary Judgment which will show as follows:
SUMMARY OF THE ARGUMENTS
Castano‘s response brief to the Summary Judgment Motion includes a Motion to
Transfer Venue, and a Motion to Dismiss. Hernandez objects to both as proper notice
of the motions have not been served.
Castano‘s Motion to transfer is improper because she incorrectly confuses the
mandatory venue requirement with subject matter jurisdiction. The venue
requirement can be and was waived in this matter. Further Hernandez‘s pleadings as
a counter petition do not establish the venue.
Contrary to Castano‘s assertions, no court has awarded her the property.
Castano asserts the affirmative defenses of Res Judicata and Collateral Estoppel. Res
Judicata does not apply in this case as there is no judgment where the parties in this
case were adverse parties in a previous case. Collateral Estoppel does not apply
because the relevant clauses in the findings of fact and conclusions of law were not
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ultimate issues in the previous litigation.
5. Castano does not raise a material factual dispute in this case, as such this case is a
question of law and is ripe for summary judgment.
II. CASTANO’S VENUE OBJECTIONS ARE BASELESS
6. Hernandez objects to Castano‘s Motion to transfer venue in this matter. Castano filed
this Motion on September 29, 2023, and set the matter for hearing for October 19,
2023. That is only 20 days‘ notice of the hearing. Tex. R. Civ. P. 87(1) requires that
Castano give Hernandez 45 days‘ notice of the hearing.
7. Castano incorrectly confuses venue with subject matter jurisdiction. There is no
question that this Court as a court of general jurisdiction has the subject matter
jurisdiction to hear this case. The venue requirements in the Civil Practices &
Remedies Code are not jurisdictional and as such they can be waived.
8. In this case venue was clearly waived. Castano and Reyes both filed claims regarding
the Property. Castano‘s claims included among others a suit to quiet title, trespass to
try title, and declaratory judgment about the title of the Property. Castano and Reyes
maintained these causes of actions for nearly four years, and heavily litigated this
case in the 328th District Court including seeking a motion for summary judgment on
the merits.
9. Additionally Hernandez‘s petition is a counterclaim not an original suit, and pursuant
to the Civil Practices and Remedies Code the original suit establishes venue, not the
counterclaim.
A. RELEVANT FACTS TO CASTANO’S VENUE ARGUMENTS
10. Castano‘s objection to venue is the latest action in a long series of attempts to forum-
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shop this case to other courts. The relevant facts are stated below.
11. Manuel Reyes filed an action to divide undivided community property on or about
September 6, 2019. The suit named Wendy Hernandez and Diana Castano as
respondents. The claims all centered around ownership of the Property located at
615 W. 29th Street, San Leon, Texas.
12. Diana Castano filed a counterclaim suing Reyes and Hernandez. The claims included
fraud on the community, fraud, breach of fiduciary duty, suit to quiet title, unjust
enrichment, conspiracy, and declaratory judgment. Likewise the claims all centered
around ownership of the Property.
13. Throughout the years Castano has availed this Court for numerous court proceedings
in his pursuit of her claim to title of the Property including, temporary injunctions
hearings, hearings on discovery, motion for summary judgment and even opposed a
request to transfer venue.
14. By September of 2021, counsel for Castano had come to understand that Castano
could not prevail on her claims for ownership of the Property because she had settled
her divorce with Reyes. Castano filed a Petition for Bill of Review in cause number
21-DCV-288227.
15. In March of 2023 shortly after this court overturned a temporary order awarding
Castano temporary possession of the Property, Castano filed an emergency petition
in intervention in Wendy Hernandez‘s divorce suit with under case number 22-FD-
1527 in County Court at Law No. 1 in Galveston County. (See Exhibit 25) The suit
was for the same facts alleged in Castano‘s Counter Petition filed in this case, and for
the same causes of action. The alleged emergency was that this Court overturned the
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Temporary Orders that granted Castano temporary possession of the Property.
16. On June 8, 2023 the Galveston County Court at Law abated the proceedings until this
case was resolved. (See Exhibit 26).
17. On July 22, 2023 Castano filed a Motion to Enter Judgment in the Galveston County
Court One case. (See Exhibit 27). The premise of the motion was based on an
incorrect claim that the 122nd District Court awarded Castano the Property in 19-FD-
1677. Despite claiming that already being done, Castano was asking the Galveston
County Court One to sign an order awarding her the Property.
18. On September 12, 2023 Wendy Hernandez filed a Counter Petition in this case.
19. On September 15, 2023 on the eve of Hernandez‘s Motion for Summary Judgment in
the Bill of Review proceeding, Castano nonsuited her Petition for Bill of Review.
20. On September 22, 2023 the Galveston County Court One, denied Castano‘s request to
lift the abatement. (See Exhibit 26).
21. On September 25th, 2023 Castano filed a notice of nonsuit in this cause. Reyes filed
a nonsuit of his case the next day on the 26th. Hernandez‘s Counter Petition is still
pending before this court.
B. This Court has Jurisdiction to Hear this Matter
22. Castano makes a habit of confusing venue with jurisdiction throughout her brief.
This Court as a district court has subject matter jurisdiction to rule on matters of real
property. A suit to quiet title is filed in a district court, the Texas trial court of
general subject matter jurisdiction. Tex. Const. art. 5, § 8. It has jurisdiction to rule
on a suit to quiet title. ―A family district court has the jurisdiction and power
provided for district courts by the constitution and laws of this state. Its jurisdiction is
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concurrent with that of other district courts in the county in which it is located.‖ Tex.
Gov‘t Code § 24.601.
23. The statute that Castano refers to in her response brief is a venue statute. Tex. Civ.
Prac. & Rem. Code § 15.011 states that ―Actions for recovery of real property or an
estate or interest in real property, for partition of real property, to remove
encumbrances from the title to real property, for recovery of damages to real
property, or to quiet title to real property shall be brought in the county in which all or
a part of the property is located.‖
24. Chapter 15 of the Texas Civil Practice and Remedies Code is entitled, ―Venue‖, and
as such governs venue not Jurisdiction. ―Venue and jurisdiction are two separate
questions. Jurisdiction is the power of the court to decide a controversy between
parties and to render and enforce a judgment with respect thereto; venue is the proper
place where that power is exercised." Scott v. McMillan, 2006 Tex. App. LEXIS
4311, 2006 WL 1351502 (Tex. App. Fort Worth May 18, 2006).
25. However like all venue statutes, venue can be waived. Unlike subject-matter
jurisdiction, which may be challenged at any time, venue may be waived if not
challenged in due order and on a timely basis. This is true, even if venue was
mandatory in another county. Scott v. Wichita County, 248 S.W.3d 324, 325–326
(Tex. App.—Houston [1st Dist.] 2007, no pet.). "The requirement that suit be
brought in the county in which the land is located is one of venue or privilege and not
of jurisdiction, and it may be waived." Jozwiak v. Jozwiak, 476 S.W.2d 857, 861
(Tex. Civ. App.--Houston [14th Dist.] 1972, no writ). Camellia Diced Cream
Company v. Chance, 339 SW 2d 558 (Tex.Civ.App. -- Houston 1960, no writ).
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26. Castano cites to no authority besides the venue statute to assert that the Court lacks
jurisdiction to hear this matter. It is clear this court does have jurisdiction to hear this
matter, and should disregard this argument.
C. Venue is Proper in this Case
27. Venue is proper in this case. Venue is established by the Plaintiff‘s pleadings, not
counterclaims. Tex. Civ. Prac. & Rem. Code § 15.062(a) states that, ―Venue of the
main action shall establish venue of a counterclaim, cross claim, or third-party claim
properly joined under the Texas Rules of Civil Procedure or any applicable statute.‖.
28. The original suit in this case was Manuel Reyes‘s Petition for Post-Divorce Division
of Property filed on or about September 6, 2019. That suit alleged that Manuel
Reyes is the owner of undivided community property specifically the Property
located 615 W 29th Street, Houston, TX that was titled in the name of Wendy
Hernandez and that it should have been community property and divided between
Reyes and Castano.
29. Reyes‘s suit was properly filed in Fort Bend County as the Parties divorce took place
in the 328th District Court of Fort Bend County.
30. Castano and Hernandez both filed counterclaims about the same fact pattern
involving the Property. Castano filed her counter petition containing a suit to quiet
title on or about December 11, 2019 and Hernandez‘s filed counterclaim containing a
suit to quiet title on or about September 12, 2023. Both suits were compulsory
counterclaims at the time they were filed.
31. The requirement that venue of counterclaims and crossclaims pursuant to Tex. Civ.
Prac. & Rem. Code § 15.062 is a mandatory venue statute that controls over Tex. Civ.
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Prac. & Rem. Code § 15.011. Perryman v. Spartan Tex. Six Capital Partners, Ltd.,
546 S.W.3d 110, 130 (Tex. 2018). Section 15.062(a)'s provision that venue of the
main action "shall" establish venue of a counterclaim, cross claim, or third-party
claim, the court in Perryman determined that, by its plain and common meaning,
"shall" denotes mandatory action. Id. at 131. The court held that section
15.062(a) was, therefore, a mandatory venue provision. Id. at 132.
32. In Perryman, the Plaintiff originally filed suit against the Defendants in Harris
County, but the Defendants filed a third party petition adding third party defendants
to the matter. Id. At 130. The third party petition contained a suit for real estate in
another county. Id. The Texas Supreme Court ruled that even though the property
that was the subject of the litigation was not located in Harris County, Harris County
was the proper venue because venue challenges are based upon Plaintiff‘s pleadings
not counterclaims. Id. At 132.
33. It‘s irrelevant that Reyes has now nonsuited his petition, as he and Castano had
already elected for the 328th District Court to be the venue for this matter. The
Eleventh Court of Appeals stated ―A claim which is inseparably connected with the
subject matter of the main suit is properly adjudicated in the court where that suit is
brought, though the plaintiff or a codefendant against whom the cross-action is filed
does not reside there. By instituting a suit in a county other than that of his residence
the plaintiff submits to the jurisdiction of the court of that county as to all matters
growing directly out of the subject matter of the suit; and thereby he waives his
right to insist on his privilege to be sued in the county of his domicile on a cause
of action of that character asserted in a cross-action, though he afterwards takes
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a nonsuit‖. Hughes v. Hughes, Tex.Civ.App., 211 S.W.2d 785, 1948 Tex.App.
LEXIS 1290.
34. Reyes properly filed his petition in this case in the 328th District Court in Fort Bend
County in 2019. The parties litigated the case for years with neither Reyes nor
Castano challenging venue. Castano cannot challenge the venue of the case based
upon Hernandez‘s counterclaim.
D. The Court has Already Ruled on a Motion to Transfer Venue
35. On October 14, 2021 Armadillo Glass, Inc. filed a motion to transfer venue of this
case asking that the case be transferred to Galveston. (See Exhibit 28). At that time
Castano fought to keep the case in Fort Bend County. On February 24, 2022 the
Court held a hearing on the Motion to transfer venue and denied the motion to
transfer.
36. If venue has been sustained against a motion to transfer venue, or if venue has been
transferred to a proper county in response to a motion to transfer venue, then no
further motions to transfer will be considered. Tex. R. Civ. P. 87(5). Rule 87
prohibits a second motion to transfer venue in one case unless specified exceptions
apply, and also prohibits subsequent trial court in case involving same parties and
claims from making its own venue determination independently of first court. In re
Lowe’s Home Ctrs., L.L.C., 531 S.W.3d 861, 870 (Tex. App.—Corpus Christi 2017,
orig. proceeding). Subsequent motion to transfer venue asserting claim of mandatory
venue in another county was not permitted. Van Es v. Frazier, 230 S.W.3d 770, 775
(Tex. App.—Waco 2007, pet. denied).
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37. Castano opposed the motion to transfer venue to Galveston at that time, because the
Court already denied a motion to transfer venue, Castano cannot file a motion to
transfer venue now.
E. Castano has Long Ago Waived Her Venue Complaints
38. To the extent venue could be challenged in this matter, Castano clearly has waived it.
A motion objecting to venue on the grounds that venue is improper is waived unless it
is filed prior to or concurrently with any other plea, pleading, or motion other than a
special appearance motion. Tex. R. Civ. P. 86(1). Kshatrya v. Texas Workforce
Com’n, 97 S.W.3d 825, 832 (Tex. App.—Dallas 2003, no pet.). ―A party may waive
venue rights by clear, overt acts evidencing an intent to waive, or by taking some
action inconsistent with an intent to pursue the venue motion.‖ Carlile v. RLS Legal
Sols., Inc., 138 S.W.3d 403, 408 (Tex. App.—Houston [14th Dist.] 2004, no pet.) If
the movant seeks relief that invokes the general jurisdiction of the court to rule on the
merits of the parties' claims, waiver may be found. Id. at 408.
39. Waiver can be found by actions taken by the party, as well as inactions. In this
particular case, both are present.
40. When Castano was served with Reyes‘s petition, Castano did not file a motion to
transfer venue instead she filed a counter petition and cross petition in this matter
seeking the jurisdiction of the court to quiet the title and award her the Property.
Castano requested multiple temporary injunctions in this matter. First on December
12th, 2019, then March 2, 2021, then on November 8, 2021, and then on August 4,
2022. Castano has made countless motions regarding discovery. Castano even
asked the Court to grant her a summary judgment awarding her the Property. Castano
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actively argued that venue was proper in Fort Bend County, and not Galveston
County.
41. The 13th Court of Appeals ruled that a party waived its right to file a motion to
transfer venue because prior to filing its motion to transfer venue the party filed a
motion to dissolve a temporary order and a plea in abatement. Graybar Elec. Co. v.
Gonzalez (In re Graybar Elec. Co.), 2008 Tex. App. LEXIS 6868 (Tex. App. Corpus
Christi Aug. 26, 2008).
42. Inconsistent action resulting in waiver is one which invokes the general jurisdiction of
the court without reservation of rights asserted by the filing of the plea of privilege.
Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 310 (Tex. App.—Fort
Worth 1988, writ denied).
43. In this case clearly Castano has made numerous actions over the last four years that
are inconsistent with asking the court to transfer venue.
44. Castano has also waived the right to ask this court for a motion to transfer venue
because of the delay in requesting the change of venue. In Ledbetter, the defendant
"did not pursue the [venue] matter to a clear ruling prior to trial" and did not make an
"active effort . . . to obtain a ruling until seven months after the trial was completed";
moreover, the record contained no order denying the motion to transfer. Cliff Jones,
Inc. v. Ledbetter, 896 S.W.2d 417, 419 (Tex. App.—Houston [1st Dist.] 1995, no
writ). In Whitworth, the defendant "waited more than a year after filing his motion to
transfer venue before requesting a hearing on the motion." Whitworth v. Kuhn, 734
S.W.2d 108th, 111 (Tex. App.—Austin 1987, no writ). The Austin court of appeals
remarked that the defendant's "complete lack of diligence is inconsistent with the
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purpose of Rule 87(1), and the trial court could have refused his motion on that
basis." Id. In Bristol a defendant waived transfer motion by waiting "approximately
fourteen months" to request a hearing and by filing summary judgment pleadings
prior to the hearing) . Bristol v. Placid Oil Co., 74 S.W.3d 156, 160 (Tex. App.—
Amarillo 2002, no pet.)
45. Here, Castano did not file a motion to transfer venue after nearly four years of
litigation, and has clearly waived her venue objection.
III. No Court Has Awarded Castano any Rights to the Property
46. Wendy Hernandez in her Counter Petition seeks to determine that she is the legal
owner of the Property by claims of suit to quiet title, trespass to try title, and a
declaratory judgment. Contrary to Castano‘s response brief no court has adjudicated
these claims.
47. Castano incorrectly claims the 122nd District Court‘s Ruling in cause number 19-CV-
1677, styled Armadillo Glass vs. Manuel Reyes awards her an interest in the property.
The 122nd District Court did not make an adjudication as to ownership of the
Property. (See Exhibit 19). The question before the Court in the Armadillo Matter
was if Armadillo Glass could collect its judgment against the Property because of
violations of the Texas Uniform Fraudulent Transfers Act(TUFTA). (See Exhibit
18.)
48. The 122nd District Court‘s Final Judgment made no disposition as to ownership of the
Property. (See Exhibit 19). The Final Judgment simply granted Armadillo Glass the
right to collect its Judgment against the Property. Id.
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49. A transfer is considered a fraudulent transfer under TUFTA if a judgment debtor
transfers an asset to a third party without receiving consideration for the asset to a
third party without receiving fair consideration. Tex. Bus. & Com. Code § 24.006.
This is indisputably true in this case. Wendy Hernandez never paid for the Property
and has never claimed otherwise. (See Exhibit 1). While this fact was dispositive for
the Armadillo suit, it is irrelevant to the suit before this Court.
50. Because the transfer was found to be a fraudulent transfer, Armadillo had the right to
receive the remedy of its lien attaching to the Property. Tex. Bus. & Com. Code
§ 24.008(a)(2). Under TUFTA the Court only has the authority to void the transfer to
the extent to cover the amount owed to the judgment creditor. Tex. Bus. & Com.
Code § 24.008(a)(1) In the event of a fraudulent transfer made in excess of the
amount of the creditor‘s claim, the transfer should not be voided in its entirety, a lien
should be granted in the amount of the creditor‘s claim against the avoided transfers.
Tow v. Rafizadeh (In re Cyrus II P'ship), No. 05-39857, No. 07-3301, 2008 Bankr.
LEXIS 4649, 63-64 (Bankr. S.D. Tex. Sept. 11, 2008).
51. Castano relies on the Findings of Fact and Conclusions of Law stating that the
Property was the community property of Manuel Reyes and Diana Castano. However
the Findings of Fact and Conclusions of Law are not a judgment. The plain and
concise language of the Final Judgment contains no such language awarding the
Property to Castano and Reyes. (See Exhibit 19). Interpretation of a judgment
should not rest on implication or conjecture. Ex parte Acker, 949 S.W.2d 314, 317
(Tex. 1997).
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52. Tex. R. Civ. P. 301 states, ―The judgment of the court shall conform to the pleadings,
the nature of the case proved and the verdict, if any, and shall be so framed as to give
the party all the relief to which he may be entitled either in law or equity…Only one
final judgment shall be rendered in any cause.‖ Clearly that judgment in the
Armadillo matter was the Final Judgment, and not the Findings of Fact and
Conclusions of Law.
53. Further had the Final Judgment actually awarded the Property to Castano and Reyes
that judgment would have been as it would have been completely unsupported by the
pleadings in the case. (See Exhibit 18).
54. It should be noted that Castano actually requested the 122nd District Court to modify
its‘ judgment to include favorable language from the Findings of Fact and
Conclusions of Law, but the 122nd District Court refused to do so. (See Exhibit 22
Exhibit 29 and Exhibit 30).
55. Despite Castano‘s misrepresentations, no Court has made any rulings on the issue of
ownership of the Property, and any claims that this issue has already been adjudicated
are without merit should be disregarded.
IV. Res Judicata Does Not Apply to This Case
56. Castano cannot assert Res Judicata as an affirmative defense to Wendy Hernandez‘s
causes of action. For res judicata to apply, the following elements must be present:
(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the
same parties or those in privity with them; and (3) a second action based on the same
claims as were raised or could have been raised in the first action. Citizens Ins. Co. of
Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).
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57. Castano cannot assert the defense of Res Judicata because the parties in this matter
were not adverse to each other in the Armadillo matter. Res Judicata only applies to
adverse parties. Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex.
1992). When the parties are co-parties rather than opposing parties, Res Judicata
acts as a bar to a co-party’s claim in a subsequent action only if the co-parties
had “issues drawn between them” in the first action. For the purposes of res
judicata, co-parties have issues drawn between them and become adverse when
one co-party files a cross-action against a second co-party. State & County Mut.
Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).
58. The only affirmative pleadings in the Armadillo Glass case was Armadillo‘s petition.
(See Exhibit 18). Both Castano and Hernandez only filed answers, and had no
affirmative pleadings. (See Exhibits 23, and 24). As neither Castano, Reyes, nor
Hernandez had any claims against each other in the Armadillo Matter, Castano‘s
defense of Res Judicata must fail.
V. Collateral Estoppel Does not Bar Hernandez’s Claims
59. Castano cannot assert the defense of Collateral Estoppel in this suit. The doctrine of
collateral estoppel precludes relitigation of any ultimate issue of fact actually litigated
and essential to the judgment in a prior suit. Bonniwell v. Beech Aircraft Corp., 663
S.W.2d 816, 818 (Tex. 1984). The doctrine applies when the party against whom
collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the
prior suit. Id. Collateral estoppel only prevents the relitigation of identical issues of
fact or law, sometimes called ultimate facts or issues, that were actually litigated and
essential to the judgment in a prior suit. Van Dyke v. Boswell, O’Toole, Davis &
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Pickering, 697 S.W.2d 381, 384 (Tex. 1985); Goldstein v. Comm‘n for Lawyer
Discipline, 109 S.W.3d 810, 812 (Tex. App.—Dallas 2003, pet. denied). Ultimate
issues are defined as those factual determinations submitted to a jury that are
necessary to form the basis of a judgment. Tarter v. Metropolitan Sav. & Loan
Ass’n, 744 S.W.2d 926, 928 (Tex. 1988); Goldstein v. Comm’n for Lawyer
Discipline, 109 S.W.3d 810, 812 (Tex. App.—Dallas 2003, pet. denied).
60. Castano claims that the issue of fraud has been litigated and adjudicated by the 122nd
District Court. As already noted, the issue before the court in the Armadillo case was
not fraud, but whether or not the transfer of the Property was a Fraudulent Transfer
pursuant to the Texas Uniform Fraudulent Transfers Act. The elements of such a
finding are completely different than fraud. A fraudulent transfer under TUFTA was
defined as, ―A transfer made … by a debtor is fraudulent as to a creditor whose claim
arose before the transfer was made or the obligation was incurred if the debtor made
the transfer or incurred the obligation without receiving a reasonably equivalent value
in exchange for the transfer or obligation and the debtor was insolvent at that time or
the debtor became insolvent as a result of the transfer or obligation.‖ Tex. Bus. &
Com. Code § 24.006. This is not in anyways an identical issue to common law fraud.
61. The finding by the 122nd District Court estops Hernandez from disputing that the
Property was transferred to her without her paying fair consideration for the Property.
Wendy Hernandez cannot and has never denied that fact as true.
62. This is irrelevant for this case though as TUFTA violations are not a question before
this Court.
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63. Castano incorrectly claims that collateral estoppel applies to the finding that the
Property is the Community Property of Diana Castano and Manuel Reyes. The
Findings of Fact and Conclusions of Law do make such a finding, but that finding
was not an essential finding to the judgment in the Armadillo case.
64. The doctrine of collateral estoppel precludes re-litigation of ultimate issues of fact
actually litigated and essential to the judgment in a prior suit." Getty Oil Co. v. Ins.
Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992). "Ultimate issues are those factual
determinations submitted to a jury that are necessary to form the basis of a
judgment." Tarter, 744 S.W.2d at 928; Farmland Partners, 2023 Tex. App. LEXIS
4743, 2023 WL 4286017, at *5.
65. The Armadillo Glass Suit was a suit for violations of TUFTA. Had this case been
submitted to a jury using the Texas Pattern Jury Charges, the Question submitted to a
Jury would be, ―Did Dean Debtor transfer any of the assets [ or incur any of the
obligations] listed below without receiving reasonably equivalent value?‖. PJC
105.26 Question on Constructive Fraud Transfer to Insider (Tex. Bus. & Com. Code
§ 24.006(a)).
66. That‘s the ultimate question the 122nd District Court needed to answer. There were
no pleadings before the Court asking it to determine if Manuel Reyes and Diana
Castano own the Property as their community property. (See Exhibit 18.) That was
not an ultimate issue for the Court to decide.
67. A recent case that dealt with this exact issue was Henry v. Notzon. Henry v. Notzon,
2023 Tex.App. LEXIS 5428, 2023 WL 4731274 (Tex. App.—Dallas 2023 No.
Petition History). In Henry the Fifth District Court of Appeals was asked to
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determine if a District Court erred by granting a summary judgment on the basis of
findings made by a federal judge in a summary judgment in a related case. Id. at 3.
The relevant facts were that Henry was an employee of Time Warner Cable(TWC),
and while working for TWC he was involved in a serious accident. Id. Notzon was
an attorney hired by TWC to represent Henry in a lawsuit resulting from the accident.
Id. A decision was made by TWC to fire Henry while the case was pending but not
to fire him until the case was over. Id. at 4. Henry alleged that Notzon was a party to
the decision to fire him, but withheld that information from Henry. Id. 4. Henry
filed a wrongful termination suit against TWC in Federal Court, asserting violations
of the ADAA claiming he was fired because he had diabetes and because he filed a
workers comp claim. Id. A summary judgment was granted in favor of TWC in the
federal case. Id. The Federal Court‘s opinion contains a finding that Henry was fired
for cause because of the accident. Id. Henry sued Notzon for breach of fiduciary
duty, and Notzon asserted the defense of collateral estoppel claiming the Federal
Court‘s finding as to reason for Henry’s firing collaterally estopped Henry from being
able to prove the causation of his damages against Notzon. Id. at 5-6. Summary
judgment was granted in favor of the Notzon on the basis of the collateral estoppel
defense. Id. at 6.
68. The Federal Court‘s opinion stated that, ―Time Warner has shown by preponderance
of the evidence that the termination would have been made even if Henry did not
have diabetes. The ARC's report and the deposition testimony of the decision makers
make clear that Henry was terminated because of the severity and avoidable nature of
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the accident.‖ Henry v. Spectrum L.L.C., No. 3:18-CV-01086-N, 2019 U.S. Dist.
LEXIS 44566, 2019 WL 1254954, at *1 (N.D. Tex. March 19, 2019).
69. The Court of Appeals reversed the trial court‘s ruling on the basis that the above
finding was not an ultimate issue decided by the Federal Court. Henry v. Notzon at
15. The Fifth District Court of Appeals stated that the District Court misinterpreted
the nature of ultimate issues for collateral estoppel purposes. The Court stated:
―First, as Tarter states, the term ‗ultimate issue' does not refer to a cause of
action or a claim but instead refers to "those factual determinations
submitted to a jury that are necessary to form the basis of a
judgment." Tarter, 744 S.W.2d at 928. Here, the parties did not litigate,
and the federal court did not consider or conclude, the same ultimate
issues Henry seeks to establish in this case—whether Notzon breached a
fiduciary duty to Henry that injured Henry or benefited Notzon, and if so,
the remedies available to him as a result of the breach. Instead, as exhibits
A and M reflect, the federal court decided that: (1) Henry's proof consisted
of circumstantial, not direct, evidence and did not create a reasonable
inference that his disability was a factor in TWC's decision to terminate
him, and (2) Henry did not create a reasonable inference he would not
have been terminated but for his decision to file for workers'
compensation. Thus, the two "ultimate issues" regarding Henry's
termination that the federal district court decided, and the Fifth Circuit
affirmed, were that, as a matter of law, (1) Henry did not prove TWC fired
Henry because of his diabetes, and (2) TWC did not discharge Henry
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because he filed a workers' compensation claim in good faith, hired a
lawyer to represent him in a workers' compensation claim, instituted or
caused to be instituted a workers' compensation claim in good faith, or
testified or was about to testify in a workers' compensation
proceeding. To conclude the same ultimate issues in Henry's prior
employment lawsuit and in this case are the same, one must pretend
that in each case, the jury would be asked, "Why did TWC terminate
Henry?" followed by a blank space for the jury to fill in. As the cited
PJCs reflect, that is not how it works.‖ Id. 16 to 18.
70. Likewise for the finding in the Armadillo case that, ―The San Leon property is the
community property of Manuel Reyes and Diana Castano‖ the Court must believe
that had the matter been submitted to a jury that jurors would have been asked to find
who the owner of the property was and whether the property was community or
separate property which of course it would not have been.
71. Nor will collateral estoppel apply to this case for the finding that, ―the San Leon
Property was fraudulently transferred to Wendy Hernandez into a resulting Trust for
Benefit of Manuel Reyes to hide from his wife Diana Castano and his Creditors,
including Plaintiff Armadillo Glass, Inc. or a resulting trust should be imposed on the
real property for such misconduct.‖
72. As already noted the fraudulent transfer finding indicates that the property was
transferred to Hernandez without Hernandez paying adequate consideration. Tex.
Bus. & Com. Code § 24.006. Additionally however because the Final Judgment is
19
based on a determination of multiple issues that independently would have been
sufficient to support the judgment collateral estoppel doesn‘t apply.
73. The general rule is that there cannot be estoppel by alternative holdings. French v.
Gill, 206 S.W.3d 737, 745 (Tex. App.--Texarkana 2006, no pet.) ―If a judgment of a
court of first instance is based on determinations of two issues, either of which
standing independently would be sufficient to support the result, the judgment is not
conclusive with respect to either issue standing alone.‖ Johnson & Higgins of Tex.,
Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 522 (Tex. 1998) citing Restat 2d of
Judgments, § 27. ―The rationale for this rule is that a determination in the alternative
may not have been as rigorously considered as it would have been if necessary to the
result, and the losing party may be dissuaded from appealing one determination
because of the likelihood that the other will be upheld.‖ Restat 2d of Judgments, §
27.
74. In Case Funding Network the first Court of Appeals found that because a previous
court had found both that an agreement never was executed and that there was no
consideration for the agreement that neither findings could be used for purposes of
collateral estoppel. Case Funding Network, L.P. v. Anglo-Dutch Petroleum Int'l, Inc.,
264 S.W.3d 38, 57 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
75. While some of the findings in the Findings of Fact and Conclusion of Law are
inconsistent with Hernandez‘s claims none of them are grounds for collateral estoppel
and as such Castano‘s collateral estoppel claims must fail. "The doctrine of collateral
estoppel only applies when relitigation could result in an inconsistent determination
of the same ultimate issue; it does not bar litigation merely because the outcomes of
20
two suits may appear to be inconsistent." Farmland Partners, 2023 Tex. App. LEXIS
4743, 2023 WL 4286017, at *10.
VI. Summary Judgment Should be Granted as to Hernandez’s Claims
76. Aside from asserting the affirmative defenses of res judicata and collateral estoppel
addressed above, Castano has not asserted any factual dispute that form the basis of
Hernandez‘s Motion for Summary Judgment. Reyes has submitted no response at all.
77. The Court should grant Summary Judgment for Wendy Hernandez quieting title in
her name and finding that Diana Castano and Manuel Reyes have no claim to the
Property. Wendy Hernandez‘s claim to the property is clear, as she is the record title
holder of the property. Wendy Hernandez was deeded the property from Charles
Jardina in 2016, Wendy Hernandez deeded the property to Manuel Reyes on or about
July 31, 2018, and Manuel Reyes deeded the Property to Wendy Hernandez on or
about January 11, 2019. (See Exhibit 3, 4, and 5). Wendy Hernandez has not
transferred the property since that time and still is the owner of the property.
78. As has already been established, Castano has no claim to the property, she cannot
claim the property as her community property as her only claim would be a
reconstituted estate, and she has already settled her claim with Manuel Reyes.
Manuel Reyes has no claim before the Court, however no such claim would have any
merit as he already deeded the property to her.
79. The Court should also grant a trespass to try title, as Wendy Hernandez clearly
deraigns title from a common source, specifically Charles Jardina. There is no claim
to the contrary of this of any merit as Wendy Hernandez has conclusively proved.
VII. Object to Motion to Dismiss
21
80. A Motion to dismiss pursuant to Rule 91a requires 21 days-notice. Castano‘s Motion
was filed on September 29, 2023 and set the hearing on the matter for October 19,
2023 which is 20 days-notice. As such Hernandez objects to a hearing being heard
for a motion to dismiss on the October 19, 2023 hearing.
RELIEF REQUESTED
Hernandez prays that the Court grant this Motion for Summary Judgment and enter a
final judgment granting Hernandez‘s claims with prejudice and all other relief that Mrs.
Hernandez may be entitled to
Respectfully submitted,
By:_/s/ Andrew Bayley______________
Andrew Bayley
TBN # 24071501
1225 North Loop West, Suite 900
Houston, TX 77008
713-383-8887
832-415-0385-Fax
22
CERTIFICATE OF SERVICE
I certify that on a true and correct copy of Plaintiff‘s Motion for Summary Judgment was
served on all parties on October 13, 2023.
/s/ Andrew Bayley ________
Andrew Bayley
23
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NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
IN THE MATTER OF THE MARRIAGE OF IN THE COUNTY COURT
SAUL ISLAS
WENDY HERNANDEZ AT LAW NO.1
AND IN THE INTEREST OF GALVESTON COUNTY, TEXAS
MOTION FOR JUDGMENT AND for DECLARATORY JUDGMENT
NOW COMES DIANA CASTANO, Intervenor and files this Motion for Declaratory
Judgment and Motion and in support would show:
Intervenor filed a Motion for Emergency Temporary Orders in this Court, seeking relief
pertaining to a property located in this County and the subject of the instant case.
This Court, on Motion of Respondent, abated this matter pending resolution of a trial
ongoing in Galveston County.
The trial in Galveston County was had, and the rendition
Preview
-242799 MANUEL REYES IN THE DISTRICT COURT Plaintiff, 328TH JUDICIAL DISTRICT WENDY HERNANDEZ, DIANA M. CASTANO AND ALEXANDER VAIRAS Defendants. OF FORT BEND COUNTY, TEXAS WENDY HERNANDEZ REPLY BRIEF TO MOTION FOR SUMMARY JUDGMENT AGAINST DIANA CASTANO TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, Wendy Hernandez files this Reply Brief to Motion for Summary Judgment which will show as follows: SUMMARY OF THE ARGUMENTS Castano‘s response brief to the Summary Judgment Motion includes a Motion to Transfer Venue, and a Motion to Dismiss. Hernandez objects to both as proper notice of the motions have not been served. Castano‘s Motion to transfer is improper because she incorrectly confuses the mandatory venue requirement with subject matter jurisdiction. The venue requirement can be and was waived in this matter. Further Hernandez‘s pleadings as a counter petition do not establish the venue. Contrary to Castano‘s assertions, no court has awarded her the property. Castano asserts the affirmative defenses of Res Judicata and Collateral Estoppel. Res Judicata does not apply in this case as there is no judgment where the parties in this case were adverse parties in a previous case. Collateral Estoppel does not apply because the relevant clauses in the findings of fact and conclusions of law were not 1 ultimate issues in the previous litigation. 5. Castano does not raise a material factual dispute in this case, as such this case is a question of law and is ripe for summary judgment. II. CASTANO’S VENUE OBJECTIONS ARE BASELESS 6. Hernandez objects to Castano‘s Motion to transfer venue in this matter. Castano filed this Motion on September 29, 2023, and set the matter for hearing for October 19, 2023. That is only 20 days‘ notice of the hearing. Tex. R. Civ. P. 87(1) requires that Castano give Hernandez 45 days‘ notice of the hearing. 7. Castano incorrectly confuses venue with subject matter jurisdiction. There is no question that this Court as a court of general jurisdiction has the subject matter jurisdiction to hear this case. The venue requirements in the Civil Practices & Remedies Code are not jurisdictional and as such they can be waived. 8. In this case venue was clearly waived. Castano and Reyes both filed claims regarding the Property. Castano‘s claims included among others a suit to quiet title, trespass to try title, and declaratory judgment about the title of the Property. Castano and Reyes maintained these causes of actions for nearly four years, and heavily litigated this case in the 328th District Court including seeking a motion for summary judgment on the merits. 9. Additionally Hernandez‘s petition is a counterclaim not an original suit, and pursuant to the Civil Practices and Remedies Code the original suit establishes venue, not the counterclaim. A. RELEVANT FACTS TO CASTANO’S VENUE ARGUMENTS 10. Castano‘s objection to venue is the latest action in a long series of attempts to forum- 2 shop this case to other courts. The relevant facts are stated below. 11. Manuel Reyes filed an action to divide undivided community property on or about September 6, 2019. The suit named Wendy Hernandez and Diana Castano as respondents. The claims all centered around ownership of the Property located at 615 W. 29th Street, San Leon, Texas. 12. Diana Castano filed a counterclaim suing Reyes and Hernandez. The claims included fraud on the community, fraud, breach of fiduciary duty, suit to quiet title, unjust enrichment, conspiracy, and declaratory judgment. Likewise the claims all centered around ownership of the Property. 13. Throughout the years Castano has availed this Court for numerous court proceedings in his pursuit of her claim to title of the Property including, temporary injunctions hearings, hearings on discovery, motion for summary judgment and even opposed a request to transfer venue. 14. By September of 2021, counsel for Castano had come to understand that Castano could not prevail on her claims for ownership of the Property because she had settled her divorce with Reyes. Castano filed a Petition for Bill of Review in cause number 21-DCV-288227. 15. In March of 2023 shortly after this court overturned a temporary order awarding Castano temporary possession of the Property, Castano filed an emergency petition in intervention in Wendy Hernandez‘s divorce suit with under case number 22-FD- 1527 in County Court at Law No. 1 in Galveston County. (See Exhibit 25) The suit was for the same facts alleged in Castano‘s Counter Petition filed in this case, and for the same causes of action. The alleged emergency was that this Court overturned the 3 Temporary Orders that granted Castano temporary possession of the Property. 16. On June 8, 2023 the Galveston County Court at Law abated the proceedings until this case was resolved. (See Exhibit 26). 17. On July 22, 2023 Castano filed a Motion to Enter Judgment in the Galveston County Court One case. (See Exhibit 27). The premise of the motion was based on an incorrect claim that the 122nd District Court awarded Castano the Property in 19-FD- 1677. Despite claiming that already being done, Castano was asking the Galveston County Court One to sign an order awarding her the Property. 18. On September 12, 2023 Wendy Hernandez filed a Counter Petition in this case. 19. On September 15, 2023 on the eve of Hernandez‘s Motion for Summary Judgment in the Bill of Review proceeding, Castano nonsuited her Petition for Bill of Review. 20. On September 22, 2023 the Galveston County Court One, denied Castano‘s request to lift the abatement. (See Exhibit 26). 21. On September 25th, 2023 Castano filed a notice of nonsuit in this cause. Reyes filed a nonsuit of his case the next day on the 26th. Hernandez‘s Counter Petition is still pending before this court. B. This Court has Jurisdiction to Hear this Matter 22. Castano makes a habit of confusing venue with jurisdiction throughout her brief. This Court as a district court has subject matter jurisdiction to rule on matters of real property. A suit to quiet title is filed in a district court, the Texas trial court of general subject matter jurisdiction. Tex. Const. art. 5, § 8. It has jurisdiction to rule on a suit to quiet title. ―A family district court has the jurisdiction and power provided for district courts by the constitution and laws of this state. Its jurisdiction is 4 concurrent with that of other district courts in the county in which it is located.‖ Tex. Gov‘t Code § 24.601. 23. The statute that Castano refers to in her response brief is a venue statute. Tex. Civ. Prac. & Rem. Code § 15.011 states that ―Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located.‖ 24. Chapter 15 of the Texas Civil Practice and Remedies Code is entitled, ―Venue‖, and as such governs venue not Jurisdiction. ―Venue and jurisdiction are two separate questions. Jurisdiction is the power of the court to decide a controversy between parties and to render and enforce a judgment with respect thereto; venue is the proper place where that power is exercised." Scott v. McMillan, 2006 Tex. App. LEXIS 4311, 2006 WL 1351502 (Tex. App. Fort Worth May 18, 2006). 25. However like all venue statutes, venue can be waived. Unlike subject-matter jurisdiction, which may be challenged at any time, venue may be waived if not challenged in due order and on a timely basis. This is true, even if venue was mandatory in another county. Scott v. Wichita County, 248 S.W.3d 324, 325–326 (Tex. App.—Houston [1st Dist.] 2007, no pet.). "The requirement that suit be brought in the county in which the land is located is one of venue or privilege and not of jurisdiction, and it may be waived." Jozwiak v. Jozwiak, 476 S.W.2d 857, 861 (Tex. Civ. App.--Houston [14th Dist.] 1972, no writ). Camellia Diced Cream Company v. Chance, 339 SW 2d 558 (Tex.Civ.App. -- Houston 1960, no writ). 5 26. Castano cites to no authority besides the venue statute to assert that the Court lacks jurisdiction to hear this matter. It is clear this court does have jurisdiction to hear this matter, and should disregard this argument. C. Venue is Proper in this Case 27. Venue is proper in this case. Venue is established by the Plaintiff‘s pleadings, not counterclaims. Tex. Civ. Prac. & Rem. Code § 15.062(a) states that, ―Venue of the main action shall establish venue of a counterclaim, cross claim, or third-party claim properly joined under the Texas Rules of Civil Procedure or any applicable statute.‖. 28. The original suit in this case was Manuel Reyes‘s Petition for Post-Divorce Division of Property filed on or about September 6, 2019. That suit alleged that Manuel Reyes is the owner of undivided community property specifically the Property located 615 W 29th Street, Houston, TX that was titled in the name of Wendy Hernandez and that it should have been community property and divided between Reyes and Castano. 29. Reyes‘s suit was properly filed in Fort Bend County as the Parties divorce took place in the 328th District Court of Fort Bend County. 30. Castano and Hernandez both filed counterclaims about the same fact pattern involving the Property. Castano filed her counter petition containing a suit to quiet title on or about December 11, 2019 and Hernandez‘s filed counterclaim containing a suit to quiet title on or about September 12, 2023. Both suits were compulsory counterclaims at the time they were filed. 31. The requirement that venue of counterclaims and crossclaims pursuant to Tex. Civ. Prac. & Rem. Code § 15.062 is a mandatory venue statute that controls over Tex. Civ. 6 Prac. & Rem. Code § 15.011. Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130 (Tex. 2018). Section 15.062(a)'s provision that venue of the main action "shall" establish venue of a counterclaim, cross claim, or third-party claim, the court in Perryman determined that, by its plain and common meaning, "shall" denotes mandatory action. Id. at 131. The court held that section 15.062(a) was, therefore, a mandatory venue provision. Id. at 132. 32. In Perryman, the Plaintiff originally filed suit against the Defendants in Harris County, but the Defendants filed a third party petition adding third party defendants to the matter. Id. At 130. The third party petition contained a suit for real estate in another county. Id. The Texas Supreme Court ruled that even though the property that was the subject of the litigation was not located in Harris County, Harris County was the proper venue because venue challenges are based upon Plaintiff‘s pleadings not counterclaims. Id. At 132. 33. It‘s irrelevant that Reyes has now nonsuited his petition, as he and Castano had already elected for the 328th District Court to be the venue for this matter. The Eleventh Court of Appeals stated ―A claim which is inseparably connected with the subject matter of the main suit is properly adjudicated in the court where that suit is brought, though the plaintiff or a codefendant against whom the cross-action is filed does not reside there. By instituting a suit in a county other than that of his residence the plaintiff submits to the jurisdiction of the court of that county as to all matters growing directly out of the subject matter of the suit; and thereby he waives his right to insist on his privilege to be sued in the county of his domicile on a cause of action of that character asserted in a cross-action, though he afterwards takes 7 a nonsuit‖. Hughes v. Hughes, Tex.Civ.App., 211 S.W.2d 785, 1948 Tex.App. LEXIS 1290. 34. Reyes properly filed his petition in this case in the 328th District Court in Fort Bend County in 2019. The parties litigated the case for years with neither Reyes nor Castano challenging venue. Castano cannot challenge the venue of the case based upon Hernandez‘s counterclaim. D. The Court has Already Ruled on a Motion to Transfer Venue 35. On October 14, 2021 Armadillo Glass, Inc. filed a motion to transfer venue of this case asking that the case be transferred to Galveston. (See Exhibit 28). At that time Castano fought to keep the case in Fort Bend County. On February 24, 2022 the Court held a hearing on the Motion to transfer venue and denied the motion to transfer. 36. If venue has been sustained against a motion to transfer venue, or if venue has been transferred to a proper county in response to a motion to transfer venue, then no further motions to transfer will be considered. Tex. R. Civ. P. 87(5). Rule 87 prohibits a second motion to transfer venue in one case unless specified exceptions apply, and also prohibits subsequent trial court in case involving same parties and claims from making its own venue determination independently of first court. In re Lowe’s Home Ctrs., L.L.C., 531 S.W.3d 861, 870 (Tex. App.—Corpus Christi 2017, orig. proceeding). Subsequent motion to transfer venue asserting claim of mandatory venue in another county was not permitted. Van Es v. Frazier, 230 S.W.3d 770, 775 (Tex. App.—Waco 2007, pet. denied). 8 37. Castano opposed the motion to transfer venue to Galveston at that time, because the Court already denied a motion to transfer venue, Castano cannot file a motion to transfer venue now. E. Castano has Long Ago Waived Her Venue Complaints 38. To the extent venue could be challenged in this matter, Castano clearly has waived it. A motion objecting to venue on the grounds that venue is improper is waived unless it is filed prior to or concurrently with any other plea, pleading, or motion other than a special appearance motion. Tex. R. Civ. P. 86(1). Kshatrya v. Texas Workforce Com’n, 97 S.W.3d 825, 832 (Tex. App.—Dallas 2003, no pet.). ―A party may waive venue rights by clear, overt acts evidencing an intent to waive, or by taking some action inconsistent with an intent to pursue the venue motion.‖ Carlile v. RLS Legal Sols., Inc., 138 S.W.3d 403, 408 (Tex. App.—Houston [14th Dist.] 2004, no pet.) If the movant seeks relief that invokes the general jurisdiction of the court to rule on the merits of the parties' claims, waiver may be found. Id. at 408. 39. Waiver can be found by actions taken by the party, as well as inactions. In this particular case, both are present. 40. When Castano was served with Reyes‘s petition, Castano did not file a motion to transfer venue instead she filed a counter petition and cross petition in this matter seeking the jurisdiction of the court to quiet the title and award her the Property. Castano requested multiple temporary injunctions in this matter. First on December 12th, 2019, then March 2, 2021, then on November 8, 2021, and then on August 4, 2022. Castano has made countless motions regarding discovery. Castano even asked the Court to grant her a summary judgment awarding her the Property. Castano 9 actively argued that venue was proper in Fort Bend County, and not Galveston County. 41. The 13th Court of Appeals ruled that a party waived its right to file a motion to transfer venue because prior to filing its motion to transfer venue the party filed a motion to dissolve a temporary order and a plea in abatement. Graybar Elec. Co. v. Gonzalez (In re Graybar Elec. Co.), 2008 Tex. App. LEXIS 6868 (Tex. App. Corpus Christi Aug. 26, 2008). 42. Inconsistent action resulting in waiver is one which invokes the general jurisdiction of the court without reservation of rights asserted by the filing of the plea of privilege. Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 310 (Tex. App.—Fort Worth 1988, writ denied). 43. In this case clearly Castano has made numerous actions over the last four years that are inconsistent with asking the court to transfer venue. 44. Castano has also waived the right to ask this court for a motion to transfer venue because of the delay in requesting the change of venue. In Ledbetter, the defendant "did not pursue the [venue] matter to a clear ruling prior to trial" and did not make an "active effort . . . to obtain a ruling until seven months after the trial was completed"; moreover, the record contained no order denying the motion to transfer. Cliff Jones, Inc. v. Ledbetter, 896 S.W.2d 417, 419 (Tex. App.—Houston [1st Dist.] 1995, no writ). In Whitworth, the defendant "waited more than a year after filing his motion to transfer venue before requesting a hearing on the motion." Whitworth v. Kuhn, 734 S.W.2d 108th, 111 (Tex. App.—Austin 1987, no writ). The Austin court of appeals remarked that the defendant's "complete lack of diligence is inconsistent with the 10 purpose of Rule 87(1), and the trial court could have refused his motion on that basis." Id. In Bristol a defendant waived transfer motion by waiting "approximately fourteen months" to request a hearing and by filing summary judgment pleadings prior to the hearing) . Bristol v. Placid Oil Co., 74 S.W.3d 156, 160 (Tex. App.— Amarillo 2002, no pet.) 45. Here, Castano did not file a motion to transfer venue after nearly four years of litigation, and has clearly waived her venue objection. III. No Court Has Awarded Castano any Rights to the Property 46. Wendy Hernandez in her Counter Petition seeks to determine that she is the legal owner of the Property by claims of suit to quiet title, trespass to try title, and a declaratory judgment. Contrary to Castano‘s response brief no court has adjudicated these claims. 47. Castano incorrectly claims the 122nd District Court‘s Ruling in cause number 19-CV- 1677, styled Armadillo Glass vs. Manuel Reyes awards her an interest in the property. The 122nd District Court did not make an adjudication as to ownership of the Property. (See Exhibit 19). The question before the Court in the Armadillo Matter was if Armadillo Glass could collect its judgment against the Property because of violations of the Texas Uniform Fraudulent Transfers Act(TUFTA). (See Exhibit 18.) 48. The 122nd District Court‘s Final Judgment made no disposition as to ownership of the Property. (See Exhibit 19). The Final Judgment simply granted Armadillo Glass the right to collect its Judgment against the Property. Id. 11 49. A transfer is considered a fraudulent transfer under TUFTA if a judgment debtor transfers an asset to a third party without receiving consideration for the asset to a third party without receiving fair consideration. Tex. Bus. & Com. Code § 24.006. This is indisputably true in this case. Wendy Hernandez never paid for the Property and has never claimed otherwise. (See Exhibit 1). While this fact was dispositive for the Armadillo suit, it is irrelevant to the suit before this Court. 50. Because the transfer was found to be a fraudulent transfer, Armadillo had the right to receive the remedy of its lien attaching to the Property. Tex. Bus. & Com. Code § 24.008(a)(2). Under TUFTA the Court only has the authority to void the transfer to the extent to cover the amount owed to the judgment creditor. Tex. Bus. & Com. Code § 24.008(a)(1) In the event of a fraudulent transfer made in excess of the amount of the creditor‘s claim, the transfer should not be voided in its entirety, a lien should be granted in the amount of the creditor‘s claim against the avoided transfers. Tow v. Rafizadeh (In re Cyrus II P'ship), No. 05-39857, No. 07-3301, 2008 Bankr. LEXIS 4649, 63-64 (Bankr. S.D. Tex. Sept. 11, 2008). 51. Castano relies on the Findings of Fact and Conclusions of Law stating that the Property was the community property of Manuel Reyes and Diana Castano. However the Findings of Fact and Conclusions of Law are not a judgment. The plain and concise language of the Final Judgment contains no such language awarding the Property to Castano and Reyes. (See Exhibit 19). Interpretation of a judgment should not rest on implication or conjecture. Ex parte Acker, 949 S.W.2d 314, 317 (Tex. 1997). 12 52. Tex. R. Civ. P. 301 states, ―The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity…Only one final judgment shall be rendered in any cause.‖ Clearly that judgment in the Armadillo matter was the Final Judgment, and not the Findings of Fact and Conclusions of Law. 53. Further had the Final Judgment actually awarded the Property to Castano and Reyes that judgment would have been as it would have been completely unsupported by the pleadings in the case. (See Exhibit 18). 54. It should be noted that Castano actually requested the 122nd District Court to modify its‘ judgment to include favorable language from the Findings of Fact and Conclusions of Law, but the 122nd District Court refused to do so. (See Exhibit 22 Exhibit 29 and Exhibit 30). 55. Despite Castano‘s misrepresentations, no Court has made any rulings on the issue of ownership of the Property, and any claims that this issue has already been adjudicated are without merit should be disregarded. IV. Res Judicata Does Not Apply to This Case 56. Castano cannot assert Res Judicata as an affirmative defense to Wendy Hernandez‘s causes of action. For res judicata to apply, the following elements must be present: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the same parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). 13 57. Castano cannot assert the defense of Res Judicata because the parties in this matter were not adverse to each other in the Armadillo matter. Res Judicata only applies to adverse parties. Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992). When the parties are co-parties rather than opposing parties, Res Judicata acts as a bar to a co-party’s claim in a subsequent action only if the co-parties had “issues drawn between them” in the first action. For the purposes of res judicata, co-parties have issues drawn between them and become adverse when one co-party files a cross-action against a second co-party. State & County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). 58. The only affirmative pleadings in the Armadillo Glass case was Armadillo‘s petition. (See Exhibit 18). Both Castano and Hernandez only filed answers, and had no affirmative pleadings. (See Exhibits 23, and 24). As neither Castano, Reyes, nor Hernandez had any claims against each other in the Armadillo Matter, Castano‘s defense of Res Judicata must fail. V. Collateral Estoppel Does not Bar Hernandez’s Claims 59. Castano cannot assert the defense of Collateral Estoppel in this suit. The doctrine of collateral estoppel precludes relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). The doctrine applies when the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Id. Collateral estoppel only prevents the relitigation of identical issues of fact or law, sometimes called ultimate facts or issues, that were actually litigated and essential to the judgment in a prior suit. Van Dyke v. Boswell, O’Toole, Davis & 14 Pickering, 697 S.W.2d 381, 384 (Tex. 1985); Goldstein v. Comm‘n for Lawyer Discipline, 109 S.W.3d 810, 812 (Tex. App.—Dallas 2003, pet. denied). Ultimate issues are defined as those factual determinations submitted to a jury that are necessary to form the basis of a judgment. Tarter v. Metropolitan Sav. & Loan Ass’n, 744 S.W.2d 926, 928 (Tex. 1988); Goldstein v. Comm’n for Lawyer Discipline, 109 S.W.3d 810, 812 (Tex. App.—Dallas 2003, pet. denied). 60. Castano claims that the issue of fraud has been litigated and adjudicated by the 122nd District Court. As already noted, the issue before the court in the Armadillo case was not fraud, but whether or not the transfer of the Property was a Fraudulent Transfer pursuant to the Texas Uniform Fraudulent Transfers Act. The elements of such a finding are completely different than fraud. A fraudulent transfer under TUFTA was defined as, ―A transfer made … by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.‖ Tex. Bus. & Com. Code § 24.006. This is not in anyways an identical issue to common law fraud. 61. The finding by the 122nd District Court estops Hernandez from disputing that the Property was transferred to her without her paying fair consideration for the Property. Wendy Hernandez cannot and has never denied that fact as true. 62. This is irrelevant for this case though as TUFTA violations are not a question before this Court. 15 63. Castano incorrectly claims that collateral estoppel applies to the finding that the Property is the Community Property of Diana Castano and Manuel Reyes. The Findings of Fact and Conclusions of Law do make such a finding, but that finding was not an essential finding to the judgment in the Armadillo case. 64. The doctrine of collateral estoppel precludes re-litigation of ultimate issues of fact actually litigated and essential to the judgment in a prior suit." Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992). "Ultimate issues are those factual determinations submitted to a jury that are necessary to form the basis of a judgment." Tarter, 744 S.W.2d at 928; Farmland Partners, 2023 Tex. App. LEXIS 4743, 2023 WL 4286017, at *5. 65. The Armadillo Glass Suit was a suit for violations of TUFTA. Had this case been submitted to a jury using the Texas Pattern Jury Charges, the Question submitted to a Jury would be, ―Did Dean Debtor transfer any of the assets [ or incur any of the obligations] listed below without receiving reasonably equivalent value?‖. PJC 105.26 Question on Constructive Fraud Transfer to Insider (Tex. Bus. & Com. Code § 24.006(a)). 66. That‘s the ultimate question the 122nd District Court needed to answer. There were no pleadings before the Court asking it to determine if Manuel Reyes and Diana Castano own the Property as their community property. (See Exhibit 18.) That was not an ultimate issue for the Court to decide. 67. A recent case that dealt with this exact issue was Henry v. Notzon. Henry v. Notzon, 2023 Tex.App. LEXIS 5428, 2023 WL 4731274 (Tex. App.—Dallas 2023 No. Petition History). In Henry the Fifth District Court of Appeals was asked to 16 determine if a District Court erred by granting a summary judgment on the basis of findings made by a federal judge in a summary judgment in a related case. Id. at 3. The relevant facts were that Henry was an employee of Time Warner Cable(TWC), and while working for TWC he was involved in a serious accident. Id. Notzon was an attorney hired by TWC to represent Henry in a lawsuit resulting from the accident. Id. A decision was made by TWC to fire Henry while the case was pending but not to fire him until the case was over. Id. at 4. Henry alleged that Notzon was a party to the decision to fire him, but withheld that information from Henry. Id. 4. Henry filed a wrongful termination suit against TWC in Federal Court, asserting violations of the ADAA claiming he was fired because he had diabetes and because he filed a workers comp claim. Id. A summary judgment was granted in favor of TWC in the federal case. Id. The Federal Court‘s opinion contains a finding that Henry was fired for cause because of the accident. Id. Henry sued Notzon for breach of fiduciary duty, and Notzon asserted the defense of collateral estoppel claiming the Federal Court‘s finding as to reason for Henry’s firing collaterally estopped Henry from being able to prove the causation of his damages against Notzon. Id. at 5-6. Summary judgment was granted in favor of the Notzon on the basis of the collateral estoppel defense. Id. at 6. 68. The Federal Court‘s opinion stated that, ―Time Warner has shown by preponderance of the evidence that the termination would have been made even if Henry did not have diabetes. The ARC's report and the deposition testimony of the decision makers make clear that Henry was terminated because of the severity and avoidable nature of 17 the accident.‖ Henry v. Spectrum L.L.C., No. 3:18-CV-01086-N, 2019 U.S. Dist. LEXIS 44566, 2019 WL 1254954, at *1 (N.D. Tex. March 19, 2019). 69. The Court of Appeals reversed the trial court‘s ruling on the basis that the above finding was not an ultimate issue decided by the Federal Court. Henry v. Notzon at 15. The Fifth District Court of Appeals stated that the District Court misinterpreted the nature of ultimate issues for collateral estoppel purposes. The Court stated: ―First, as Tarter states, the term ‗ultimate issue' does not refer to a cause of action or a claim but instead refers to "those factual determinations submitted to a jury that are necessary to form the basis of a judgment." Tarter, 744 S.W.2d at 928. Here, the parties did not litigate, and the federal court did not consider or conclude, the same ultimate issues Henry seeks to establish in this case—whether Notzon breached a fiduciary duty to Henry that injured Henry or benefited Notzon, and if so, the remedies available to him as a result of the breach. Instead, as exhibits A and M reflect, the federal court decided that: (1) Henry's proof consisted of circumstantial, not direct, evidence and did not create a reasonable inference that his disability was a factor in TWC's decision to terminate him, and (2) Henry did not create a reasonable inference he would not have been terminated but for his decision to file for workers' compensation. Thus, the two "ultimate issues" regarding Henry's termination that the federal district court decided, and the Fifth Circuit affirmed, were that, as a matter of law, (1) Henry did not prove TWC fired Henry because of his diabetes, and (2) TWC did not discharge Henry 18 because he filed a workers' compensation claim in good faith, hired a lawyer to represent him in a workers' compensation claim, instituted or caused to be instituted a workers' compensation claim in good faith, or testified or was about to testify in a workers' compensation proceeding. To conclude the same ultimate issues in Henry's prior employment lawsuit and in this case are the same, one must pretend that in each case, the jury would be asked, "Why did TWC terminate Henry?" followed by a blank space for the jury to fill in. As the cited PJCs reflect, that is not how it works.‖ Id. 16 to 18. 70. Likewise for the finding in the Armadillo case that, ―The San Leon property is the community property of Manuel Reyes and Diana Castano‖ the Court must believe that had the matter been submitted to a jury that jurors would have been asked to find who the owner of the property was and whether the property was community or separate property which of course it would not have been. 71. Nor will collateral estoppel apply to this case for the finding that, ―the San Leon Property was fraudulently transferred to Wendy Hernandez into a resulting Trust for Benefit of Manuel Reyes to hide from his wife Diana Castano and his Creditors, including Plaintiff Armadillo Glass, Inc. or a resulting trust should be imposed on the real property for such misconduct.‖ 72. As already noted the fraudulent transfer finding indicates that the property was transferred to Hernandez without Hernandez paying adequate consideration. Tex. Bus. & Com. Code § 24.006. Additionally however because the Final Judgment is 19 based on a determination of multiple issues that independently would have been sufficient to support the judgment collateral estoppel doesn‘t apply. 73. The general rule is that there cannot be estoppel by alternative holdings. French v. Gill, 206 S.W.3d 737, 745 (Tex. App.--Texarkana 2006, no pet.) ―If a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.‖ Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 522 (Tex. 1998) citing Restat 2d of Judgments, § 27. ―The rationale for this rule is that a determination in the alternative may not have been as rigorously considered as it would have been if necessary to the result, and the losing party may be dissuaded from appealing one determination because of the likelihood that the other will be upheld.‖ Restat 2d of Judgments, § 27. 74. In Case Funding Network the first Court of Appeals found that because a previous court had found both that an agreement never was executed and that there was no consideration for the agreement that neither findings could be used for purposes of collateral estoppel. Case Funding Network, L.P. v. Anglo-Dutch Petroleum Int'l, Inc., 264 S.W.3d 38, 57 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). 75. While some of the findings in the Findings of Fact and Conclusion of Law are inconsistent with Hernandez‘s claims none of them are grounds for collateral estoppel and as such Castano‘s collateral estoppel claims must fail. "The doctrine of collateral estoppel only applies when relitigation could result in an inconsistent determination of the same ultimate issue; it does not bar litigation merely because the outcomes of 20 two suits may appear to be inconsistent." Farmland Partners, 2023 Tex. App. LEXIS 4743, 2023 WL 4286017, at *10. VI. Summary Judgment Should be Granted as to Hernandez’s Claims 76. Aside from asserting the affirmative defenses of res judicata and collateral estoppel addressed above, Castano has not asserted any factual dispute that form the basis of Hernandez‘s Motion for Summary Judgment. Reyes has submitted no response at all. 77. The Court should grant Summary Judgment for Wendy Hernandez quieting title in her name and finding that Diana Castano and Manuel Reyes have no claim to the Property. Wendy Hernandez‘s claim to the property is clear, as she is the record title holder of the property. Wendy Hernandez was deeded the property from Charles Jardina in 2016, Wendy Hernandez deeded the property to Manuel Reyes on or about July 31, 2018, and Manuel Reyes deeded the Property to Wendy Hernandez on or about January 11, 2019. (See Exhibit 3, 4, and 5). Wendy Hernandez has not transferred the property since that time and still is the owner of the property. 78. As has already been established, Castano has no claim to the property, she cannot claim the property as her community property as her only claim would be a reconstituted estate, and she has already settled her claim with Manuel Reyes. Manuel Reyes has no claim before the Court, however no such claim would have any merit as he already deeded the property to her. 79. The Court should also grant a trespass to try title, as Wendy Hernandez clearly deraigns title from a common source, specifically Charles Jardina. There is no claim to the contrary of this of any merit as Wendy Hernandez has conclusively proved. VII. Object to Motion to Dismiss 21 80. A Motion to dismiss pursuant to Rule 91a requires 21 days-notice. Castano‘s Motion was filed on September 29, 2023 and set the hearing on the matter for October 19, 2023 which is 20 days-notice. As such Hernandez objects to a hearing being heard for a motion to dismiss on the October 19, 2023 hearing. RELIEF REQUESTED Hernandez prays that the Court grant this Motion for Summary Judgment and enter a final judgment granting Hernandez‘s claims with prejudice and all other relief that Mrs. Hernandez may be entitled to Respectfully submitted, By:_/s/ Andrew Bayley______________ Andrew Bayley TBN # 24071501 1225 North Loop West, Suite 900 Houston, TX 77008 713-383-8887 832-415-0385-Fax 22 CERTIFICATE OF SERVICE I certify that on a true and correct copy of Plaintiff‘s Motion for Summary Judgment was served on all parties on October 13, 2023. /s/ Andrew Bayley ________ Andrew Bayley 23 Exhibit 25 Exhibit 25 Exhibit 25 Exhibit 25 Exhibit 25 Exhibit 25 012032435ÿ0738ÿ9 '()*ÿ,-./0 23/- 4445 40846 7 ÿ7 ÿÿ89ÿ:ÿ0 $ 5ÿ< 1=24>24144 ÿ4ÿ ÿ7$ $ ?(02@ $ A5ÿ $ ÿBAC FGHIÿJKKLMNGO PHOQGORÿJNIMGS T $ U:V:W 5ÿ9 X5ÿY 75ÿ FGHIÿJKKLMNGO ZHM[H\Rÿ]HMQGHNH T $ ^_*-2)ÿ(-`ÿ (03-b) 7220 2 2 #Exhibit $ %&1 26 0201 012032435ÿ0738ÿ9 ÿ ÿ)ÿ * ÿ+ ÿ $ ÿ$ÿ $ ÿ, ÿ -!ÿÿ ÿ. * ÿ+ ÿ $ ÿ$ÿ $ ÿ, ÿ ÿ/ÿ* ÿ $ ÿ.0 + 1 ÿ/ÿ2 ÿ/ÿ, ÿ.0 * ÿ+ ÿ $ ÿ$ÿ $ ÿ, ÿ 328244ÿ2ÿ0ÿ2ÿ2ÿ- ÿ ÿ. $ 5ÿ5 * ÿ+ ÿ $ ÿ$ÿ $ ÿ, ÿ ÿ/ÿ* ÿ $ ÿ. $ 5ÿ5 * ÿ+ ÿ $ ÿ$ÿ $ ÿ, ÿ ÿ/ÿ* ÿ $ ÿ.0 7220 2 2 #Exhibit $ %&1 26 4201 012032435ÿ0738ÿ9 (ÿ)ÿ ÿ)ÿ* ÿ+ ÿ $ ÿ$ÿ $ ÿ- ÿ ÿ)ÿ* ÿ $ . *+ /#5ÿ- ÿ 711ÿ9 $ÿ0 ÿ )) +0 5ÿ/0 (ÿ)ÿ ÿ)ÿ* ÿ+ ÿ $ ÿ$ÿ $ ÿ- ÿ ÿ) * ÿ $ ÿ12 *+ /#5ÿ- ÿ 7220 2 2 #Exhibit $ %&1 26 3201 012032435ÿ0738ÿ9 711ÿ9 $ÿ(ÿ)ÿ $ 9 $ÿ ÿÿ $+ÿ,ÿ- ÿ+ÿ)ÿ,ÿ $ ÿÿ ÿÿ $+ÿ,ÿ- $ 5ÿ0 (+ ÿÿ1 ÿ ÿ,ÿ2 ÿ ÿ$ÿ3ÿÿ3 ÿ4ÿ9 ÿÿ5#ÿ ÿÿ1 5ÿ ÿÿ96 ÿ$ÿ ÿ,ÿ5ÿ$ÿ7 ÿ7ÿ+2ÿ) 2 6 2 ÿ,ÿ9 ÿ$ÿ ÿ,ÿ9 ÿÿ- 7 5ÿ2 0731ÿ $ 7220 2 2 #Exhibit $ %&1 26 '201 012032435ÿ0738ÿ9 ( $ )ÿ $ ÿ $ *ÿ -ÿÿ ÿ ÿ.ÿ/ ÿÿ0)ÿ ÿÿ/ ÿ.ÿ1 ÿ ÿ$ÿ2ÿÿ ÿÿ 3 5ÿ1 711ÿ9 ( 9! $ $ÿ4ÿ.ÿ 4ÿ.ÿ ÿ, ÿ5 , ÿ67 01711ÿ9 $ 01711ÿ9 $ ÿÿ9, 7220 2 2 #Exhibit $ %&1 26 8201 012032435ÿ0738ÿ9 (ÿ(ÿ) $ 5ÿ, $ ÿ ÿ ÿ(ÿ9. ÿ/.. 0 5ÿ1 0731ÿ 1 .ÿ2 ÿ(ÿ, $ ÿ$ÿ(ÿ ÿ, $ ÿ/3 4ÿ(ÿ ÿ. ÿ) . ÿ/3 5 $ ÿ $ ÿ $ 67ÿ 8ÿÿ ÿ(ÿ, $ ÿ$ÿ ÿ, $ 92243ÿ $/ÿ)+ 7220 2 2 #Exhibit $ %&1 26 '201 012032435ÿ0738ÿ9 ( $ ÿ $ ÿ $ )ÿ*ÿ9 $ $ÿ -ÿ$ÿ( ÿÿ ÿ.ÿ/ $ ÿ$ ÿ/ $ ÿ$ÿ( 0 ÿ.ÿ1ÿ23 ÿ $ 5ÿ/5ÿ $ 5ÿ/ 01711ÿ9 ( , 1 ÿ( ÿ6.ÿÿ7 8ÿ ÿÿ9.ÿ9, ÿÿ1#ÿ1 ÿ/ $ ÿ ÿÿÿ ÿ9ÿÿ: ÿ ÿ *ÿ9 $ $ÿ ÿÿ9, 5ÿ ÿÿ/ $ÿ$ÿ93 ÿÿ7 8ÿ ÿÿ7 ;ÿ.ÿ7ÿ ÿ 7220 2 2 #Exhibit $ %&1 26 '201 012032435ÿ0738ÿ9 (ÿ)ÿ*ÿ ÿ $ ÿ ÿ.ÿ( ÿ/0 .ÿ(ÿ)ÿ(1 ÿ/0 $ ÿ ÿ.ÿ( ÿ/0 (ÿ)ÿ2)ÿ3 ÿ $ 5ÿ. 01711ÿ9 $ 1#ÿ1 ÿ. $ ÿ ÿÿÿ ÿ9ÿ ÿÿ2 ÿ ÿ ÿÿ ÿÿ ÿ4 ÿ $ÿ2 ÿ)ÿ$ ÿ $ÿÿ $ÿ4 5ÿ$ÿÿÿ (ÿ)ÿ(/1 ÿ$ÿ ÿÿ6)ÿ94 7220 2 2 #Exhibit $ %&1 26 '201 012032435ÿ0738ÿ9 $ 5ÿ. 18711ÿ $ 0ÿ1ÿ ÿ23 4 ÿÿ ÿÿ51ÿ96 7 6ÿ8$ $ 5ÿ. 00711ÿ9 ÿ!ÿ6 4 $ÿ6 ÿ9 ÿ7# '()*)+(*, :;<=>ÿ@AB=BCA=>ÿDEEFEE B< HIJIKLL :;<=>ÿM=N B?;ÿ 2422BCC2CDBEF GHI6HJÿK6L N2COP44Q 01231242 ;6;9ÿFR9S>; MNCO3P44Q 31201242 R6:H6=;>U:ÿVHH9HH 2DP44 31201242 67 9=9>?;ÿ 2422BC2WD3BEF GHI6HJÿK6L N2DP44Q X1O124 R6:H6=;>U:ÿVHH9HH D4P44 X1O124 67 9=9>?;ÿ 2422BCOYX4BEF GHI6HJÿK6L ND4P44Q TU;6IÿZ>:6:=>6IÿVHH9HH :; NX4P44 TU;6Iÿ567 :;Hÿ6:SÿFR9S>;H NX4P44 O1CO1242 R6:H6=;>U:ÿVHH9HH X4P44 O1CO1242 67 9=9>?;ÿ 242OB4DD2DBEF F6H;6:UJÿ 6: NOYP44Q O1CO1242 ;6;9ÿFR9S>; MNDYP44Q )* ./ 7220 2 2 #Exhibit $ %&1 26 01201 NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA IN THE MATTER OF THE MARRIAGE OF IN THE COUNTY COURT SAUL ISLAS WENDY HERNANDEZ AT LAW NO.1 AND IN THE INTEREST OF GALVESTON COUNTY, TEXAS MOTION FOR JUDGMENT AND for DECLARATORY JUDGMENT NOW COMES DIANA CASTANO, Intervenor and files this Motion for Declaratory Judgment and Motion and in support would show: Intervenor filed a Motion for Emergency Temporary Orders in this Court, seeking relief pertaining to a property located in this County and the subject of the instant case. This Court, on Motion of Respondent, abated this matter pending resolution of a trial ongoing in Galveston County. The trial in Galveston County was had, and the rendition