Petition for Writ of Mandamus - Supreme Court of Texas

NO. _____________________________
IN THE
SUPREME COURT OF TEXAS
________________________________________________________________________
IN RE FUNDING PARTNERS, L.P., FPIC, L.L.C., JEAP SOLUTIONS, L.L.C., DPIC,
L.L.C., DPLS, L.L.C., DPLS II, L.L.C., FBP, INC., FPLS, L.L.C., FPLS II, L.L.C.,
FPMB, INC., DASH PARTNERS, LP, AND PROSPECT, L.L.C.
________________________________________________________________________
Original Proceeding From the 57 th Judicial District Court of Bexar County, Texas.
________________________________________________________________________
JOINT PETITION FOR WRIT OF MANDAMUS
________________________________________________________________________
John G. Meazell
00791242
1400 Gables Court
Plano, Texas 75075
(972) 881-4300
Fax (972) 398-8488
Ms. Dawn M. Grams Horak
24036667
Dawn M. Grams, P.C.
P.O. Box 924
Grapevine, Texas 76099
(469)-644-7442
Fax (214)-572-6893
attorney@meazell.net dgrams@msn.com
ATTORNEY FOR FPIC, L.L.C., JEAP
SOLUTIONS, L.L.C., DPIC, L.L.C.,
DPLS, L.L.C., DPLS II, L.L.C., FBP,
INC., FPLS, L.L.C., FPLS II, L.L.C.,
FPMB, INC., DASH PARTNERS, LP,
AND PROSPECT, L.L.C.
ORAL ARGUMENT REQUESTED
ATTORNEY FOR FUNDING
PARTNERS, L.P. AND ACQUISITION
FUNDING SOURCE, INC.
FILED
IN THE SUPREME COURT
OF TEXAS
11 November 9 P4:08
BLAKE. A. HAWTHORNE
CLERK

IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all
counsel.
RELATORS: COUNSEL:
Funding Partners, LP
FPIC, L.L.C., Jeap Solutions, L.L.C., DPIC,
L.L.C., DPLS, L.L.C., DPLS II, L.L.C., FBP,
Inc., FPLS, L.L.C., FPLS II, L.L.C., FPMB, Inc.,
Dash Partners, LP, and Prospect, L.L.C.
RESPONDENT:
Judge Martha Tanner
166 th Judicial District Court
100 Dolorosa
San Antonio, Texas 78205
Judge Victor H. Negron, Jr.
438 th Judicial District Court,
100 Dolorosa
San Antonio, Texas 78205
Judge Antonia Arteaga
57 th Judicial District Court,
ii
Ms. Dawn M. Grams
Horak
Dawn M. Grams, P.C.
P.O. Box 924
Grapevine, Texas 76099
Mr. John G. Meazell
1400 Gables Court
Plano, Texas 75075

100 Dolorosa
San Antonio, Texas 78205
REAL PARTY IN INTEREST: COUNSEL:
Javier A. Pena d/b/a Phi Contractors and
Juan Garcia
iii
Mr. Paul T. Curl
Curl & Stahl, P.C.
700 N. St. Mary’s Street
Suite 1930
OTHER PARTIES: COUNSEL:
San Antonio, Texas 78205
SPT Investments, Inc. and James R. Martzall James R. Martzall, pro se
5108 Rittman #100
San Antonio, Texas
78218
Acquisition Funding Source, Inc. Ms. Dawn M. Grams
Horak
Dawn M. Grams, P.C.
P.O. Box 924
Grapevine, Texas 76099

TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................. ii-iii
INDEX OF AUTHORITIES ....................................................................................... vi-vii
STATEMENT OF THE CASE ................................................................................... viii
STATEMENT OF JURISDICTION ................................................................................ x
ISSUES PRESENTED .................................................................................................. x-xi
STATEMENT OF FACTS ............................................................................................... 1
ARGUMENT AND AUTHORITIES .............................................................................. 5
Standard of Review ............................................................................................... 5
There is No Adequate Remedy At Law Because the Property Rights of Third
Parties Will be Affected If Judgment is Rendered Against Funding Partner. ............. 5
The Court Should Mandamus the Respondent Because the Sanction Imposed is
a) Not Directed Against the Alleged Abuse or b) Excessive .......................................... 9
A Court Must Make Findings Sufficient to Satisfy the Requirements of
TransAmerican Before Imposition of Death Penalty Sanctions that Were Conditionally
Provided in a Previous Order .......................................................................................... 10
The Court Should Issue a Writ of Mandamus Because the Actions of Funding
Partners Did Not Warrant the Imposition of Case Determinative Sanctions ............... 12
The Court Should Grant Mandamus Because the Imposition of “Death Penalty”
Sanctions Does Not Remedy Any Prejudice to Pena. .................................................... 13
iv

The Court Should Mandamus the Respondent Because Funding Partner’s
Counsel Erroneously Advised Funding Partners the Answer Date was February 4,
2011 .................................................................................................................................. 15
PRAYER .......................................................................................................................... 15
CERTIFICATION ............................................................................................................ 16
CERTIFICATE OF SERVICE ......................................................................................... 17
APPENDIX ...................................................................................................................... 18
1. Judge Tanner’s Order Granting Motion to Enter Judgment Against Defendant
Funding Partners, LP a/k/a FP Asset Group, LP as to Liability ............... Exhibit 1
2. Judge Negron’s Order of January 27, 2011 providing for “death penalty” sanctions
.................................................................................................................. Exhibit 2
3. Judge Negron’s Order Denying Motion for Clarification ........................ Exhibit 13
4. Memorandum Opinion Denying Mandamus and Motion for Abatement Exhibit 16
5. Memorandum Opinion Denying Mandamus ............................................ Exhibit 17
6. Orders Denying Relator’s Motion for Rehearing ..................................... Exhibit 18
7. Orders Denying Relator’s Second Motion for Abatement ....................... Exhibit 19
RECORD
1. Judge Tanner’s Order Granting Motion to Enter Judgment Against Defendant
Funding Partners, LP a/k/a FP Asset Group, LP as to Liability ............... Exhibit 1
2. Judge Negron’s Order of January 27, 2011 providing for “death penalty” sanctions
.................................................................................................................. Exhibit 2
v

3. Motion to Enter Judgment Against Defendant Funding Partners, LP a/k/a FP Asset
Group, LP as to Liability .......................................................................... Exhibit 3
4. Defendant Funding Partners, LP’s Response to Plaintiffs’ Motion to Enter
Judgment Against Defendant Funding Partners, LP as to Liability ......... Exhibit 4
5. Defendant Funding Partners, LP’s Motion to Extend Time and to Supplement Its
Answer to Plaintiffs’ Interrogatory No. 1 ................................................ Exhibit 5
6. Hearing Transcript on Motion for Entry of Judgment, Motion for Leave Exhibit 6
7. Plaintiffs’ Tenth Amended Petition .......................................................... Exhibit 7
8. TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex. 1991)
.................................................................................................................. Exhibit 8
9. Judge Negron’s Order Denying Leave to Supplement ............................. Exhibit 9
10. Plaintiffs’ Response to Defendants Funding Partners, LP’s Motion to Extend Time
to Supplement. .......................................................................................... Exhibit 10
11. Hearing Transcript on Motion for Leave Before Judge Negron .............. Exhibit 11
12. Defendant Funding Partners, LP’s Motion for Clarification .................... Exhibit 12
13. Judge Negron’s Order Denying Motion for Clarification ........................ Exhibit 13
14. Affidavit of Scott Horne ........................................................................... Exhibit 14
15. Affidavit of Dawn Horak Grams .............................................................. Exhibit 15
16. Memorandum Opinion Denying Mandamus and Motion for Abatement Exhibit 16
17. Memorandum Opinion Denying Mandamus ............................................ Exhibit 17
18. Orders Denying Relator’s Motion for Rehearing ..................................... Exhibit 18
19. Orders Denying Relator’s Second Motion for Abatement ....................... Exhibit 19
vi

INDEX OF AUTHORITIES
CASES Page
Daniel v. Kelly Oil Corp., 981 S.W.2d 230, 234 (Tex.App.—Houston [1 st Dist.], 1998,
rev. denied) (en banc) ......................................................................................... 5
In re Texas DFPS, 210 S.W.3d 609, 612 (Tex. 2006) .................................................. 5
In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) ......................................... 5
In re Prudential Ins. Co., 148 S.W. 3d 124, 136 (Tex. 2004) ....................................... 5
Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) ........................................... 12
TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913, 917
(Tex. 1991) ........................................................................................ .x, 9, 12, 13, 15
United States Fidelity & Guaranty Co. v. Rossa, 830 S.W.2d 668, 672
(Tex.App.—Waco 1992, writ denied) ................................................................ 5
TEXAS CONSTITUTION, STATUTES, AND RULES
Tex. R. Civ. Proc. 215……………………………………..…………… ...... 11, 13
Tex. R. Civ. Proc.215.3…………………………………………………… .. 10, 11
Tex. R. Civ. Proc. 215(b)(3) ................................................................................ 11
Tex. R. Civ. Proc. 215(b)(5)…………………………………………………… 10
Texas Government Code §22.022(a)……………………………………………ix
vii

STATEMENT OF THE CASE
Real Parties in Interest, Javier A. Pena and Juan Garcia, (hereinafter “Pena”)
brought this suit in the 57 th Judicial District Court in Bexar County, Texas asserting
Breach of Contract, Breach of Quasi Contract, Common Law Fraud, Statutory Fraud,
Mutual Mistake, Violation of Section 162.005 of the Texas Property Code, and Vicarious
Liability against SPT Investments, Inc., (hereinafter “SPT”), James R. Martzall,
(hereinafter “Martzall”), Funding Partners, LP a/k/a FP Asset Group, LP, and
Acquisition Funding Source, Inc., (hereinafter “Acquisition Funding”) seeking
compensation in connection with labor and materials supplied to the residence at 258 E.
Rosewood, San Antonio, Texas. After discovering a number of real property assets of
Funding Partners were transferred to the Dash Parties, the Real Parties in Interest
amended their lawsuit alleging fraudulent transfer against Funding Partners, LP,
(Hereinafter “Funding Partners”) and FPIC, L.L.C., Jeap Solutions, L.L.C., DPIC,
L.L.C., DPLS, L.L.C., DPLS II, L.L.C., FBP, Inc., FPLS, L.L.C., FPLS II, L.L.C.,
FPMB, Inc., Dash Partners, LP, and Prospect, L.L.C. (Hereinafter the “Dash Parties”).
In connection with the fraudulent transfer claim, the Real Parties in Interest served
interrogatories on Funding Partners containing five interrogatories. After not receiving
timely answers, the Real Parties in Interest filed a motion to compel and an order was
entered by the Honorable Judge Karen H. Pozza, presiding judge of the 407 th District
Court, Bexar County, requiring Funding Partners to answer the interrogatories in seven
calendar days. Funding Partners answered all the interrogatories save one by the deadline
imposed by Judge Pozza. Five days thereafter, the Real Parties in Interest filed a Motion
viii

for Sanctions because Funding Partners did not answer this one interrogatory. A hearing
on the motion for sanctions was heard before the Honorable Judge Victor H. Negron, Jr.
presiding judge of the 438 th Judicial District Court, Bexar County. Judge Negron ordered
Funding Partners to completely respond in seven calendar days to the interrogatory or
face death penalty sanctions.
Funding Partners answered the interrogatory, but did so several days late. On
February 11, 2011, Funding Partners filed a motion to clarify Judge Negron’s ruling of
January 27, 2011 along with deeming the late supplementation in compliance which was
denied on February 25, 2011. Nearly four months later, the Real Parties in Interest filed a
motion to enforce the death penalty sanctions against Funding Partners and Funding
Partners filed a motion seeking leave to extend its time to answer this interrogatory. On
June 14, 2011, the Honorable Judge Martha Tanner, presiding judge in the 57 th Judicial
District Court, Bexar County, Texas, entered an order granting death penalty sanctions
striking all of Funding Partners’ claims and defenses on all of the claims asserted by the
Real Parties in Interest and denied Funding Partners motion for an extension of time. 1
Immediately thereafter, Funding Partners reset the motion to extend time in which to
supplement its responses before Judge Negron. On July 15, 2011, a hearing was held
before Judge Negron in which Funding Partners’ motion for leave was denied.
On August 31, 2011, Relators filed two petitions for writs of mandamus with the
Fourth Court of Appeals in San Antonio; one for Judge Tanner and the other for Judge
Negron; respectively, In re Funding Partners, L.P., et. al., 04-11-00632-CV, 2011 WL
1 Judge Tanner in denying the motion for leave suggested presenting the motion to Judge Negron.
ix

4590408 (Tex.App.—San Antonio, Oct. 5, 2011, orig. proceeding) and In re Funding
Partners, L.P., et. al., 04-11-00633-CV, 2011 WL 4590411 (Tex.App.—San Antonio,
Oct. 5, 2011, orig. proceeding).(Justices Catherine Stone, Phylis J. Speedlin and Steven
C. Hilbig, per curiam). Relators also filed a motion to abate the trial on the matter. Both
petitions and motions were denied and Memorandum Opinions were issued on October 5,
2011. 2 Relators filed a motion for rehearing and a second motion for abatement on
October 14, 2011. Those motions were denied on October 19, 2011.(Justices Catherine
Stone, Phylis J. Speedlin and Steven C. Hilbig, sitting). 3 This mandamus followed.
STATEMENT OF JURISDICTION
This court has jurisdiction over this petition for writ of mandamus under Section
22.022(a) of the Texas Government Code.
Issue Number One
ISSUE PRESENTED
The Real Parties in Interest argue the imposition of the “death penalty” sanctions
were merely ministerial and all that need be shown is a failure of Funding Partners to
comply with the order of January 27, 2011. Funding Partners argues that before
imposing “death penalty” sanctions, a court must hold a hearing and make findings in
compliance with TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913,
917 (Tex. 1991). Whether a court, before imposing “death penalty” sanctions
conditioned in a previous order, must satisfy the requirements set forth in TransAmerican
2 See Exhibits 16 and 17.
3 See Exhibits 18 and 19.
x

Natural Gas Corporation v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) to establish an
abuse of the discovery process pursuant to Tex. R. Civ. Proc. 215.3.
Issue Number Two
Tex. R. Civ. Proc. 215 permits the imposition of “death penalty” sanction only if they are
just. In order to be just, the sanction must 1) have a direct relationship between the abuse
and the sanction imposed and 2) must not be excessive. The issue before this court is
whether Respondent abused her discretion by imposing “death penalty” sanctions on all
of Funding Partners claims and defenses because Funding Partners answered four days
late to one interrogatory related only to the Fraudulent Transfer claim.
Issue Number Three
Whether Respondent abused his discretion by denying Relators’ motion for leave
to supplement discovery late.
xi

STATEMENT OF FACTS
In January of 2009, Pena brought suit asserting Breach of Contract, Breach of
Quasi Contract, Common Law Fraud, Statutory Fraud, Mutual Mistake, Violation of
Section 162.005 of the Texas Property Code, and Vicarious Martzall, Funding Partners,
and Acquisition Funding, seeking compensation in connection with labor and materials
supplied to the residence at 258 E. Rosewood in San Antonio (“Rosewood Property.”).
After discovering assets of Funding Partners had been transferred, Pena amended their
lawsuit alleging fraudulent transfer against the Relators and Acquisition Funding. 4
Pursuant to the fraudulent transfer claim, Pena served interrogatories on Funding
Partners, 5 containing only five interrogatories. The answers were due on November 20,
2010. When answers were not timely received a Motion to Compel Answers to the
Interrogatories was filed and heard on December 15, 2010. An order was entered granting
the motion to compel requiring Funding Partners to answer the five interrogatories
without objection by December 22, 2010. 6 Funding Partners providing substantive
answers found in a thirteen page response served on November 17, 2010 but due to mail
delays were not received until the day of the hearing. 7 In this response and due to the
magnitude of the response to Interrogatory No. 1, Funding Partners responded it would
supplement. 8 Instinctively, Pena filed a motion within five days seeking “death penalty”
sanctions, said motion heard on January 27, 2011. The Honorable Judge Negron granted
4 See Exhibit 7.
5 See Exhibit D of Exhibit 3.
6 See Exhibit 2.
7 See Exhibit B of Exhibit 3.
8 See Exhibit D of Exhibit 3.
Page | 1

the motion and ordered Funding Partners to complete its response to Interrogatory No. 1
in one week. The ruling also ordered if Funding Partners did not answer by February 3,
2011, Funding Partners’ pleadings would be stricken. 9 In effect, the Judge Negron
granted conditional “death penalty” sanctions after only two motions over the course of 9
weeks following the date the original answer was due. Prior to this 9 week period, only
one other motion to compel had been filed against Funding Partners but that motion was
not heard. 10
Funding Partners worked diligently to gather the information necessary to respond
to Interrogatory No. 1. 11 Unfortunately, Funding Partners’ counsel misunderstood the
date of compliance and informed Funding Partners the deadline was Friday, February 4,
2011. 12 Nevertheless, this error would be overshadowed by events completely beyond
the control of anyone. On the evening of Monday, January 31, 2011, an unexpected ice
and snow storm struck the North Texas area. 13 The storms shut down Dallas all of
February 1, 2011, February 2, 2011, and Friday, February 4, 2011. 14
The weather let up sufficiently on February 3, 2011 enabling Funding Partners to
finish gathering the information responsive to Interrogatory No. 1. 15 Funding Partners
sent the information to its counsel on February 3, 2011 via email and then overnighted
the original verifications and additional document. 16 Federal Express picked up the
9
See Exhibit E of Exhibit 3.
10
See Exhibit 15.
11
See Exhibits L, M, and N of Exhibits 4 & 5.
12
See Exhibit K of Exhibits 4 & 5.
13
See Exhibits L-P of Exhibits 4 & 5.
14
Id.
15
See Para. 7 of Exhibit M, Para. 6 of Exhibit N, and Exhibits O and P of Exhibits 4 & 5.
16
See Exhibits M, N, and S of Exhibits 4 & 5.
Page | 2

package on February 3, 2011. 17 As misfortune would have it, another ice and snow storm
struck Dallas on February 4, 2011. 18 As a result, Federal Express was not able to deliver
the package until Saturday, February 5, 2011. 19
Despite these most difficult circumstances, Funding Partners sent a partial
response on February 4, 2011. This supplementation, found in two emails, provided Pena
with a table of information along with a legend to decipher the nearly 1,500 separate
discrete facts. 20 Funding Partners also faxed the unverified supplementation to Pena on
that same date. 21 After the delay by Federal Express, Funding Partners finalized its
response on Monday, February 7, 2011. 22
True to form, Pena took issue with the completeness and timeliness of the
response. 23 Funding Partners’ counsel explained in detail the issues with the weather, the
difficulties acquiring information because real property records department for Dallas had
been closed, and the honest mistake on her part regarding the date of compliance. Despite
the fact the supplementation on this one interrogatory was in the form of 30 pages
containing nearly 1,500 discrete facts, Pena complained the answer was not complete. 24
On February 11, 2011, Funding Partners filed a motion to clarify Judge Negron’s
ruling of January 27, 2011 along with deeming the late supplementation in compliance
17 See Exhibit S of Exhibits 4 & 5.
18 See Exhibit M, N, O, and P of Exhibits 4 & 5.
19 See Exhibit S of Exhibits 4 & 5.
20 See Exhibits A, E and L of Exhibits 4 & 5.
21 See Exhibit F of Exhibits 4 & 5.
22 See Exhibit G of Exhibits 4 & 5.
23 See Exhibit B of Exhibits 4 & 5.
24 See Exhibits B, C, D, E, H, I, and J of Exhibits 4 & 5.
Page | 3

with the order. 25 By the time of the hearing on February 25, 2011 the trial date had been
moved to June 13, 2011. 26 The motion for clarification asked Judge Negron to change
his order to reflect the date of compliance to be February 4, 2011 and to hold that
Funding Partners’ supplementation on February 7, 2011 did not violate such order. On
February 25, 2011, Judge Negron heard the motion to clarify and denied the motion. 27
Nearly four months later, Pena filed a motion for entry of judgment pursuant to the
January 27, 2011 order. 28 A response to this motion was filed by Funding Partners along
with a motion for leave to extend the time to supplement its answers to Interrogatory No.
1. 29 During the hearing on June 14, 2011, Pena argued to Judge Tanner that her ruling is
simply ministerial by entering judgment because the response was not received by
February 3, 2011 as per Judge Negron’s order. 30 Following the hearing, the Judge
Tanner granted Pena’s motion for entry of judgment against Funding Partners. 31 Judge
Tanner also denied Funding Partners’ motion for leave to extend its time to supplement
because she was “not going to override or change Judge Negron’s orders.” 32 Judge
Tanner then suggested Funding Partners was free to set its motion for extension of time
with Judge Negron for his consideration. 33 Funding Partners reset the motion for leave
before Judge Negron which ultimately was denied on July 15, 2011.
25
See Exhibit 12.
26
See Exhibit Q of Exhibit 5.
27
See Exhibit 13. No record was made of the February 25, 2011 hearing.
28
See page 5 of Exhibit 3.
29
See Exhibit 4 and 5.
30
See pg. 5, lns. 12-17 of Exhibit 6.
31
See Exhibit 1.
32
See Pg. 36, lns. 14-19 of Exhibit 6.
33 Id.
Page | 4

Standard of Review.
ARGUMENT AND AUTHORITIES
The court reviews the entire record, including the evidence, arguments of counsel,
the written discovery on file, the circumstances surrounding the party’s alleged discovery
abuse. Further, the court is not limited to a review of the “sufficiency of the evidence” to
support the findings, rather, the court will make an independent inquiry of the entire
record to determine if the court abused its discretion in imposing the sanction. United
States Fidelity & Guaranty Co. v. Rossa, 830 S.W.2d 668, 672 (Tex.App.—Waco 1992,
writ denied); Daniel v. Kelly Oil Corp., 981 S.W.2d 230, 234 (Tex.App.—Houston [1 st
Dist.], 1998, rev. denied) (en banc).
There is No Adequate Remedy At Law Because the Real Property Rights of
Third Parties Will be Affected If Judgment is Rendered Against Funding Partners and
Judicial Resources Will Be Wasted.
The relator must show it has no adequate remedy at law. In re Texas DFPS, 210
S.W.3d 609, 612 (Tex. 2006). Determining whether an appellate remedy is adequate
involves balancing “practical and prudential” considerations, such as the inevitability of
reversal and the waste of judicial resources on a proceeding. In re Team Rocket, L.P.,
256 S.W.3d 257, 262 (Tex. 2008). An appellate remedy is adequate when the benefits of
mandamus review are outweighed by the detriments. In re Prudential Ins. Co., 148 S.W.
3d 124, 136 (Tex. 2004). Funding Partners was a company that provided lending to real
Page | 5

estate investors who would purchase, repair and sell residential real estate. 34 In 2008-
2009, Funding Partners experienced a tsunami of events that threatened its very
existence. First, the real estate and lending markets began roiling from the fallout from
the Wall Street scandals in 2008. These scandals caused lending to dry up and real estate
values to drop significantly. As Funding Partners was dealing with the banks refusing to
lend, it was discovered in 2009 that one of its trusted employees, Ginger Holt, had
embezzled $1.7 million dollars from the company, misallocated $3 million dollars of
private investment capital, and forged multiple real estate documents releasing
underlying debt owed to Funding Partners. Furthermore, Ms. Holt engaged in a check
kiting scheme resulting in an additional $1.3 million dollars in losses to several banks. 35
Funding Partners’ business also involved selling the notes and deeds of trust to
banks to free up additional funds for lending. When the liquidity of banks dried up, the
banks began refusing to purchase the notes held by Funding Partners. Because Funding
Partners now found it difficult to sell its notes, it could not loan money to other real estate
investors. This inability to lend seriously deteriorated Funding Partners’ cash flow.
Worse yet, many of the real estate investors who Funding Partners had lent money and
for which a first lien mortgage to the bank existed, simply walked away from the
investment properties because of the horrible market conditions. As a result, Funding
Partners inherited over a 120 homes that were in various states of disrepair and requiring
the infusion of substantial capital to make the homes in saleable condition. 36
34 See Exhibit 14.
35 Id.
36 Id.
Page | 6

In light of the embezzlement by Ginger Holt, no capital investor was willing to
invest in Funding Partners, and the ability to continue its business largely ceased. As a
result, Funding Partners found it necessary to sell these homes in order to avoid default
on the first lien mortgages held by the banks. Funding Partners sold the homes to other
companies held by the principals of Funding Partners for little or no cash along with the
assumption of liabilities for the homes; 37 because on a whole, the bank liens on the
homes, without regard to the other liabilities, outstripped the value of the homes. If
Funding Partners did not transfer the properties, all of them would have been foreclosed
upon by the banks that held the first lien mortgages. Therefore, the only way to avoid
default was to sell them to outside entities, seek investor money to rehabilitate the
properties, and hope over the long term the homes could be liquidated without a loss.
After having sold these homes to the various companies, investment funds were
secured and these homes were rehabilitated. The vast majority of the homes were saved
from foreclosure by the banks. As a part of this process all of these properties were sold
to innocent third parties homeowners who are not party to this lawsuit. These innocent
homeowners have owner financed notes payable to the Dash Parties that sit on top of the
first lien notes held by the banks. 38
Pena seeks to cancel the deeds from Funding Partners to the other Relators. 39 If
the trial court grants this relief, innocent homeowners will find they no longer own the
home they thought they purchased and owned. Further, Pena has also placed lis pendens
37 These liabilities included unpaid taxes, insurance, HOA dues and necessary repairs.
38 See Exhibit 14.
39 See Page 10 of Exhibit 7.
Page | 7

on multiple properties that are owned by these homeowners. 40 When Pena obtains a
judgment, they may seek to have that judgment enforced against these homeowners. If a
writ is not granted, then the effects of a judgment, while the matter is on appeal, will
cause havoc, dispossession and/or alienation issues for these innocent homeowners.
Already one party who realized a lis pendens was filed against their property by Pena
stopped making payments on their note, resulting in foreclosure.
In addition, Pena need only seek a turnover order of the mortgage payments made
by these innocent homeowners to the Dash Parties. Consequently, the Dash Parties
would not be able to make the payments to the bank who holds a first lien; thereby
dispossessing the homeowners by bank foreclosure. All in all, the Dash Parties and
Funding Partners would be faced with a multiplicity of lawsuits by these homeowners
they could little defend, since the subject homes are now in the hands of Pena or the
banks. Therefore, should this matter go forward, no adequate remedy on appeal because
the effect of a judgment on appeal will cause irreversible effects on not only the Relators
but also innocent third party homeowners.
In addition, proceeding forward will result in a waste of judicial resources because
all the claims against Funding Partners must be tried nonetheless. This is so because
those same claims were asserted against Acquisition Funding who was not subject to the
“death penalty” sanctions. Therefore, a trial on the merits of the same claims in which
Pena secured “death penalty” sanctions must be tried anyway. Therefore, the Court
should grant mandamus to avoid a substantial waste of judicial resources.
40 See Exhibit 14.
Page | 8

The Court Should Mandamus the Respondent Because the Sanction Imposed
is a) Not Directed Against the Alleged Abuse or b) Excessive.
Direct Relationship
A just sanction must be directed toward the abuse. TransAmerican Natural Gas
Corporation v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). In the instant case, the
Interrogatory in question sought information in relation only to the fraudulent transfer
claim. The other claims for breach of contract, breach of quasi contract, mutual mistake,
common law fraud, statutory fraud, fraud by non-disclosure, conspiracy, unjust
enrichment, violation of Section 162.005 of the Texas Property Code, violation of
Section 162.001, et seq. of the Texas Property Code, and vicarious liability had no
bearing whatsoever on the answer or non-answer to the one interrogatory in question.
Nevertheless, Judge Tanner struck all claims and all defenses of Funding Partners.
The first factor set forth in TransAmerican requires there to be a “direct
relationship” between the abuse and the sanction imposed. The TransAmerican court
further stated that a party who refuses to produce information despite the imposition of a
lesser sanction, permits a court to presume a claim or defense lacks merit; thereby
allowing the court to dismiss such claim or defense. Id. at 918. The alleged abuse was
failure to answer one question relating solely to the fraudulent transfer claim. The
holding in TransAmerican only permits the court to dismiss Funding Partners’ defense of
the fraudulent transfer claim. Therefore, the Court should mandamus the Respondent
because there is no direct relationship between the abuse of failing to timely answer an
Page | 9

interrogatory on the fraudulent transfer claim and striking Funding Partners’ claims and
defenses on all the other unrelated claims asserted by Pena.
Excessive
Just sanctions must not be excessive and should be no more severe than to satisfy
its legitimate purposes. Id. at 917. No legitimate purpose is satisfied by striking ALL of
Funding Partners defenses to the claims asserted by Pena having nothing to do with the
fraudulent transfer claim. Therefore, the Court should mandamus the Respondent because
the sanction imposed was excessive.
A Court Must Make Findings Sufficient to Satisfy the Requirements of
Transamerican Before Imposition of Death Penalty Sanctions That Were
Conditionally Provided in a Previous Order.
Tex. R. Civ. Proc. 215.3 requires that before imposition of sanctions pursuant to
Tex. R. Civ. Proc. 215(b)(5) a hearing must be conducted to determine if there is an
abuse of the discovery process sufficient to sanction a party. Tex. R. Civ. Proc. 215(b)(5)
does not provide for conditionally granting sanctions upon the happening or failure to
happen of some future event. Reading both of these rules together require that before the
sanctions set forth in Tex. R. Civ. Proc. 215(b)(5) be actually imposed, a hearing
pursuant to Tex. R. Civ. Proc. 215.3 must be conducted to determine whether there was
an abuse of the discovery process. The court’s ruling on January 27, 2011 is not the
imposition of a sanction as contemplated by Tex. R. Civ. Proc. 215(b)(5) and Tex. R.
Civ. Proc. 215.3. Instead, the order of January 27, 2011 was not an order striking
Funding Partners pleadings as authorized by Tex. R. Civ. Proc. 215(b)(5) but rather was
Page | 10

an order providing for a sanction subject to some future event. Clearly, Judge Negron did
not find on January 27, 2011 facts sufficient to order the striking of Funding Partners
pleadings pursuant to Tex. R. Civ. Proc. 215(b)(3).
Nevertheless, Pena argued before Judge Tanner that entry of judgment is merely a
ministerial act. That is, failure to comply with the January 27, 2011 order automatically
causes entry of judgment. However, this is contrary to Tex. R. Civ. Proc. 215.3, Funding
Partners’ due process rights, and the order of January 27, 2011 itself. One can only argue
that Judge Negron’s January 27, 2011 order set forth the conditional sanction presuming
the failure to comply would be an abuse of the discovery process sufficient to award
“death penalty” sanctions. However, a presumption is inadequate to a finding as required
by Tex. R. Civ. Proc. 215. Therefore, Judge Tanner was required to make a finding that
failure of Funding Partners to respond by February 3, 2011 was as an abuse of the
discovery process sufficient to award “death penalty” sanctions.
In the Court of Appeals, Pena sought to focus on the actions of Funding Partners
and its counsel that occurred prior to January 27, 2011. They further complained that
Relators were only focused on the events occurring after January 27, 2011. Tex. R. Civ.
Proc. 215 requires that before case determinative sanction be awarded a finding must be
made that the failure of Relators to respond by February 3, 2011 per Judge Negron’s
order was the result of an abuse of the discovery process. Therefore, the issue is not what
Relators did or did not do prior to January 27, 2011, the issue is whether the conduct of
Relators after January 27, 2011 constitutes an abuse of the discovery process sufficient to
warrant “death penalty” sanctions.
Page | 11

The Court Should Issue a Writ of Mandamus Because the Actions of Funding
Partners Did Not Warrant the Imposition of Case Determinative Sanctions.
“Death penalty” sanctions should not be assessed absent a party’s flagrant bad
faith or counsel’s callous disregard for the responsibilities of discovery under the rules.
TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913, 918 (Tex. 1991).
The evidence presented at the hearing showed there was no flagrant bad faith or callous
disregard. First, the weather conditions severely hampered Funding Partners’ ability to
timely answer. Second, despite the weather, Funding Partners’ counsel provided a partial
response on February 4, 2011 containing 10 pages. Furthermore, the correspondence
between Funding Partners’ attorney and Pena’s attorney reflect anything but callous
disregard for complying with the January 27, 2011 order. To the contrary, these emails
show a good faith attempt to get as much information responsive to Interrogatory No. 1 to
Pena as feasible. Therefore, the Court should issue a writ of mandamus because the
evidence clearly shows the failure to timely respond was not the result of flagrant bad
faith or due to counsel’s callous disregard for the rules of discovery.
The imposition of case determinate sanctions may only be granted in exceptional
cases when they are clearly justified and it is fully apparent and that no lesser sanction
would promote compliance with the rules. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882
(Tex. 2003). The facts before this Court show one order requiring answers to five
interrogatories and a second order conditioning death penalty sanctions on answering one
of those interrogatories. The conditional “death penalty” sanctions were procured after
only two motions. It is very important to note that up to that point only one other motion
Page | 12

to compel against Funding Partners had been filed, but was not heard. 41 There has been
no evidence demonstrating a pattern of abuse. No evidence whatsoever has been
presenting demonstrating prejudiced to the Relators by receiving the answers 4 days late.
In contrast, we see a monumental effort to comply with the rules by answering this one
interrogatory with 30 pages having 1,500 separate discrete facts. Therefore, the Court
should mandamus the Respondent because the evidence overwhelmingly demonstrated
this is not an exception case justifying the imposition of case determinative sanctions.
The Court Should Grant Mandamus Because the Imposition of “Death Penalty”
Sanctions Does Not Remedy Any Prejudice to Pena.
Sanctions pursuant to paragraph 2(b) or paragraph 3 of Tex. R. Civ. Proc. 215
must be just. TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913, 917
(Tex. 1991). The imposition of “death penalty” sanctions must satisfy the following two
standards: 1) There must be a direct relationship between the offensive conduct and the
sanction imposed; and 2) just sanctions must not be excessive. Id. The first standard
requires a showing that the sanctions must be toward remedying the prejudice caused to
the innocent party. Id.
Months before the motion to impose “death penalty” sanctions was filed, Funding
Partners had responded fully by February 7, 2011 containing nearly 1,500 discrete
separate facts along with 30 pages supplied in support of the answer to this one
interrogatory. The response was voluminous and painstakingly made. The weather
conditions prevented Funding Partners’ personnel to devote their time gathering the large
41 See Exhibit 15.
Page | 13

amount of information demanded by the interrogatory. Despite these conditions, Funding
Partners was able to partially respond by February 4, 2011 and fully respond by Monday,
February 7, 2011.
Pena alleged in their motion the interrogatory was not fully answered simply
because Funding Partners had failed to retype subpart (e) of the question. However,
examining the response to Interrogatory No. 1 reveals that even though subpart (e) was
not typed into the interrogatory question, it was indeed answered. To further clarify,
subpart (e) of Interrogatory No. 1 asked Funding Partners to “State the reason for the
transfer.” The response to subpart (e) stated “Funding Partners no longer had the funds to
pay for any of the foregoing.” 42 This part of the answer to Interrogatory No. 1 is not
responsive to any other subpart of Interrogatory No. 1. Pena has yet to address this fact.
Therefore, a complete response to Interrogatory No. 1 was supplied despite Pena’s
contention the answer was incomplete simply due to a typo in retyping the Interrogatory.
In order to prevail, Pena must show that imposition of “death penalty” sanctions
will remedy the prejudice to them. Id. The facts at the hearing demonstrated Pena
suffered no prejudice. A very complete and thorough response to Interrogatory No. 1
was supplied four calendar days after it was due. Pena at that time had almost eight
months to use this information since the discovery period ended on October 14, 2011 and
November 14, 2011 was the trial date. 43 Therefore, the Court should issue a writ of
42 See Pg. 1 of Exhibit J of Exhibits 4 & 5.
43 See Exhibit Q of Exhibits 4 & 5.
Page | 14

mandamus because the imposition of “death penalty” sanctions does not remedy any
prejudice to Pena.
The Court Should Mandamus the Respondent Because Funding Partner’s
Counsel Erroneously Advised Funding Partners the Answer Date was February 4,
2011.
Even should this Court determine the weather insufficient to warrant avoidance of
the “death penalty” sanctions, the Court should not hold Funding Partners responsible for
the mistake of its counsel. A party should not be punished as a result of the actions of its
counsel’s conduct. TransAmerican, 811 S.W.2d at 918-919. The evidence in the record
clearly reveals the mistaken date for compliance was supplied by counsel for Funding
Partners. Funding Partners sent the first wave of materials over to its counsel on
February 3, 2011. Further, that same day it sent by way of Federal Express the remaining
portions of its responses to its counsel for delivery on February 4, 2011. Funding
Partners was erroneously supplied by its counsel the date of compliance was February 4,
2011. Therefore, the Court should mandamus Respondent because the ruling imposed
“death penalty” sanctions for the conduct solely attributable to its counsel.
PRAYER
For these reasons, Relators, requests that this court mandamus Respondent Tanner,
ordering her to withdraw her order awarding “death penalty” sanctions against Funding
Partners, or to enter such lesser sanction as sustainable for the conduct so alleged.
Relators also request the court mandamus Respondent Negron requiring withdrawal of
his order denying leave to supplement and order him to grants such leave to supplement
late. Relators also requests costs and any other relief to which they may be entitled.
Page | 15

CERTIFICATION
I, John G. Meazell and Dawn M. Grams Horak, certify that I have reviewed the
petition and concluded that every factual statement in the petition is supported by
competent evidence included in the appendix or record.
Respectfully Submitted,
JOHN MEAZELL, P.C.
By:/s/ John G. Meazell
John G. Meazell
00791242
1400 Gables Court
Plano, Texas 75075
(972) 881-4300
Fax (972) 398-8488
attorney@meazell.net
ATTORNEY FOR FPIC, L.L.C., JEAP
SOLUTIONS, L.L.C., DPIC, L.L.C.,
DPLS, L.L.C., DPLS II, L.L.C., FBP,
INC., FPLS, L.L.C., FPLS II, L.L.C.,
FPMB, INC., DASH PARTNERS, L.P.
AND PROSPECT, L.L.C.
s/ John G. Meazell
John G. Meazell
/s/ Dawn M. Grams Horak
Dawn M. Grams Horak
Respectfully Submitted,
DAWN M. GRAMS HORAK, P.C.
By: /s/ Dawn M. Grams Horak
Dawn M. Grams Horak
24036667
P.O. Box 924
Grapevine, Texas 76099
(469)-644-7442
Fax (214)-572-6893
dgrams@msn.com
ATTORNEY FOR FUNDING
PARTNERS, L.P.
Page | 16

CERTIFICATE OF SERVICE
This certifies that the undersigned served this Petition for Writ of Mandamus on
Judges Martha Tanner, Antonia Arteaga, and Victor Negron, Respondents, by sending it
to Judge Martha Tanner, at the 166 th District Court, 100 Dolorosa, San Antonio, Texas
78205, by overnight delivery; and served it on SPT Investments, Inc. and James R.
Martzall by serving it certified mail return receipt requested on James R. Martzall at
5108 Rittman #100, San Antonio, Texas 78218; and served it on Javier A. Pena d/b/a Phi
Contractors and Juan Garcia, Real Parties in Interest, by certified mail return receipt
requested to their lead counsel for the Real Parties in Interest, Mr. Paul T. Curl, Curl &
Stahl, P.C. at 700 N. St. Mary’s Street, Suite 1930, San Antonio, Texas 78205 on the 9 th
day of November, 2011.
/s/ John G. Meazell
John G. Meazell
Page | 17

APPENDIX
Page | 18

EXHIBIT ONE
JUDGE TANNER'S ORDER GRANTING MOTION TO ENTER JUDGMENT
AGAINST DEFENDANT

EXHIBIT 2
JUDGE NEGRON'S ORDER OF JANUARY 27, 2011 PROVIDING FOR DEATH
PENALTY SANCTIONS

EXHIBIT 13
JUDGE NEGRON'S ORDER DENYING MOTION FOR CLARIFICATION
HEARD ON FEBRUARY 25, 2011

STATE OF TEXAS
COUNTY OF COLLIN
§
§
§
AFFIDAVIT
Before me, the undersigned authority, personally appeared Dawn G. Horak, who
being by me duly sworn, deposed as follows:
My name is John G. Meazell, I am of sound mind, over the age of eighteen,
capable of making this affidavit, personally acquainted with the facts herein stated, and
such facts are true:
"Attached hereto is a true and correct copy of Judge Negron's Order Denying
Defendant Funding Partners, LP's Motion for Clarification on February 25, 2011 as filed
in Javier A. Pena d/b/a Phi Contractors and Juan Garcia vs. SPT Investments, Inc., et.
al., in the 57th Judicial District of Bexar County, Texas, Cause No. 2009-CI-03462.
SWORN TO AND SUBSCRIBED before me n the !1_ day ofNovember 2011.
AFFIDAVIT
Page 1 ofl

APPROVED AS TO FORM:
CURL&STAHL
A PROFESSIONAL CORPORATION
700 North St. Mary's Street, Suite ·1930
San Antonio, Texas 78205
Telephone: (21 0) 226-2182
Telecopier: (21 0) 226-1691
PAUL T. CURL
State Bar No. 05255200
ATTORNEYS FOR PLAINTIFFS
DAWN M. GRAMS HORAK
State Bar No. 240:36667
P. 0. Box 924
Grapevine. Texas 76099
Telephone: (469) 644-7442
Telecopier: (214) 572 .. 6893
ATTORNEYS FOR DEFENDANTS
2

STATE OF TEXAS
COUNTY OF COLLIN
§
§
§
AFFIDAVIT
Before me, the undersigned authority, personally appeared John G. Meazell, who
being by me duly sworn, deposed as follows:
My name is John G. Meazell, I am of sound mind, over the age of eighteen,
capable of making this affidavit, personally acquainted with the facts herein stated, and
such facts are true:
"Attached hereto is a true and correct copy of Memorandum Opinion Denying
Mandamus and Motion for Abatement in Funding Partners, L.P., FP IC, L.L. C., Jeap
Solutions, L.L.C., DPIC, L.L.C, DPLS, L.L.C, DPLS IL L.L.C., FBP, Inc., FPLS, L.L.C.,
FPLS IL L.L.C., FPlv!B, Inc., Dash Partners, LP and Prospect, L.L.C. In the Court of
Appeals for the Fourth Supreme Judicial District of Texas at San Antonio, Texas Case
No. 4-11-00632-CV. ,
SWORN TO AND SUBSCRIBED before me on the _f._ day o
AFFIDAVIT
Page 1 ofl
BRITTANY DAWN DARMAN
MY COMMISSION EXPIRES
November 18,2013

EXHIBIT 17
MEMORANDUM OPINION DENYING MANDAMUS

STATE OF TEXAS
COUNTY OF COLLIN
§
§
§
AFFIDAVIT
Before me, the undersigned authority, personally appeared John G. Meazell, who
being by me duly sworn, deposed as follows:
My name is John G. Meazell, I am of sound mind, over the age of eighteen,
capable of making this affidavit, personally acquainted with the facts herein stated, and
such facts are true:
"Attached hereto is a true and correct copy of Memorandum Opinion Denying
Mandamus in Funding Partners, L.P., FPIC, L.L.C., Jeap Solutions, L.L.C., DPIC,
L.L.C, DPLS, L.L.C, DPLS II, L.L.C., FBP, Inc., FPLS, L.L.C., FPLS II, L.L.C., FPMB,
Inc., Dash Partners, LP and Prospect, L.L.C. In the Court of Appeals for the Fourth
Supreme Judicial District of Texas at San Antonio, Texas Case No. 4-11-00633-CV.
SWORN TO AND SUBSCRIBED before eon the _1_ day ofNovember 2011.
AFFIDAVIT
Page 1 ofl
BRIITANY DAWN DARMAN
MY COMMISSION EXPIRES
November 18, 2013

* * * * *
MEMORANDUM OPINION
No. 04-11-00633-CV
IN REFUNDING PARTNERS, L.P., FPIC, L.L.C., JEAP Solutions, L.L.C., DPIC, L.L.C.,
DPLS, L.L.C., DPLS II, L.L.C., FBP, Inc., FPLS, L.L.C., FPLS II, L.L.C., FPMB, Inc.,
Dash Partners, LP and Prospect, L.L.C.
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: October 5, 2011
Original Mandamus Proceeding 1
PETITION FOR WRIT OF MANDAMUS DENIED
The court has considered the petition for a writ of mandamus filed by relators on August
31, 2011, and the response of the real parties in interest and is of the opinion that relief should be
denied. See TEX. R. APP. P. 52.8(a). Accordingly, relators' petition for a writ of mandamus is
denied.
1 This proceeding arises out of Cause No. 2009-CI-03462, styled Javier A. Pena d/b/a Phi Contractors and d/b/a Phi
Services and Juan Garcia v. Funding Partners, L.P. alkla FP Asset Group, L.P.; SPT Investments, Inc.; James R.
Martzall; Acquisition Funding Source, Inc.; FPiC, L.L.C.; Jeap Solutions, L.L.C.; DPIC, L.L.C.; DPLS, L.L.C.; D
PLS II, L.L.C.; FBP, Inc.; FPLS, L.L.C.; FPLS II, L.L.C.; FPMB, Inc.; Prospect, L.L.C.; and Dash Partners, LP,
pending in the 57th Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner presiding.
*

EXHIBIT 18
ORDERS DENYING RELATOR'S MOTION FOR REHEARING

STATE OF TEXAS
COUNTY OF COLLIN
§
§
§
AFFIDAVIT
Before me, the undersigned authority, personally appeared John G. Meazell, who
being by me duly sworn, deposed as follows:
My name is John G. Meazell, I am of sound mind, over the age of eighteen,
capable of making this affidavit, personally acquainted with the facts herein stated, and
such facts are true:
"Attached hereto are a true and correct copies of the Orders Denying Relator's
Motion for Rehearing in Funding Partners, L.P., FPIC, L.L.C., Jeap Solutions, L.L.C.,
DPIC, L.L.C, DPLS, L.L.C, DPLS IL L.L.C., FBP, Inc., FPLS, L.L.C., FPLS IL L.L.C.,
FP MB, Inc., Dash Partners, LP and Prospect, L.L. C. In the Court of Appeals for the
Fourth Supreme Judicial District of Texas at San Antonio, Texas Case No. 4-11-00632-
CV and in Funding Partners, L.P., FPIC, L.L.C., Jeap Solutions, L.L.C., DPIC, L.L.C,
DPLS, L.L.C, DPLSIL L.L.C., FBP, Inc., FPLS, L.L.C., FPLSIL L.L.C., FPMB, Inc.,
Dash Partners, LP and Prospect, L.L.C. In the Court of Appeals for the Fourth Supreme
Judicial District of Texas at San Antonio, Texas Case No. 4-11-00633-CV.
SWORN TO AND SUBSCRIBED before me o the _i_ day ofNovember 2011.
AFFIDAVIT
Page 1 ofl

* * * *
October 19, 2011
No. 04-11-00632-CV
IN REFUNDING PARTNERS, L.P., FPIC, L.L.C., JEAP SOLUTIONS, L.L.C., DPIC,
L.L.C., DPLS, L.L.C., DPLS II, L.L.C., FBP, INC., FPLS, L.L.C., FPLS II, L.L.C., FPMB,
INC., DASH PARTNERS, LP AND PROSPECT, L.L.C.,
Sitting:
Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Original Mandamus Proceeding 1
The panel has considered the Relator's Motion for Rehearing, and the motion ts
DENIED.
PER CURIAM
It is so ORDERED on October 19, 2011.
ATTESTED TO:
1 This proceeding arises out of Cause No. 2009-CI-03462, styled Javier A. Pena d/b/a
Phi Contractors and d/b/a Phi Services and Juan Garcia v. Funding Partners, L.P. alk/a FP
Asset Group, L.P.; SPT Investments, Inc.; James R. Martzall; Acquisition Funding Source, Inc.;
FPIC, L.L.C.; Jeap Solutions, L.L.C.; DPIC, L.L.C.; DPLS, L.L.C.; DPLS II, L.L.C.; FBP, Inc.;
FPLS, L.L.C.; FPLS II, L.L.C.; FPMB, Inc.; Prospect, L.L.C.; and Dash Partners, LP, pending
in the 57th Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner
presiding.
*

EXHIBIT 19
ORDERS DENYING RELATOR'S SECOND MOTION FOR ABATMENT

STATE OF TEXAS
COUNTY OF COLLIN
§
§
§
AFFIDAVIT
Before me, the undersigned authority, personally appeared John G. Meazell, who
being by me duly sworn, deposed as follows:
My name is John G. Meazell, I am of sound mind, over the age of eighteen,
capable of making this affidavit, personally acquainted with the facts herein stated, and
such facts are true:
"Attached hereto are true and correct copies of the Orders Denying Relator's
Second Motion for Abatement in Funding Partners, L.P., FP IC, L.L. C., Jeap Solutions,
L.L.C., DPIC, L.L.C, DPLS, L.L.C, DPLS II, L.L.C., FBP, Inc., FPLS, L.L.C., FPLS II,
L.L.C., FPMB, Inc., Dash Partners, LP and Prospect, L.L.C. In the Court of Appeals for
the Fourth Supreme Judicial District of Texas at San Antonio, Texas Case No. 4-11-
00632-CV and in Funding Partners, L.P., FPIC, L.L.C., Jeap Solutions, L.L.C., DPIC,
L.L.C, DPLS, L.L.C, DPLS II, L.L.C., FBP, Inc., FPLS, L.L.C., FPLS II, L.L.C., FPMB,
Inc., Dash Partners, LP and Prospect, L.L.C. In the Court of Appeals for the Fourth
Supreme Judicial District of Texas at San Antonio, Texas Case No. 4-11-00633-CV.
SWORN TO AND SUBSCRIBED before
AFFIDAVIT
Page 1 ofl
BRin"ANY DAWN DAAMAN
MY COMMISSION EXPIRES
November 18, 2013
n the_!__ day ofNovember 2011.

* * * *
October 19, 2011
No. 04-11-00633-CV
IN REFUNDING PARTNERS, L.P., FPIC, L.L.C., JEAP SOLUTIONS, L.L.C., DPIC,
L.L.C., DPLS, L.L.C., DPLS II, L.L.C., FBP, INC., FPLS, L.L.C., FPLS II, L.L.C., FPMB,
INC., DASH PARTNERS, LP, AND PROSPECT, L.L.C.
Sitting:
Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Original Mandamus Proceeding 1
The panel has considered the Relator's Motion for Rehearing, and the motion ts
DENIED.
It is so ORDERED on October 19, 2011. PER CURIAM
ATffiSTED TO& 9, /g
Keith E. Hottle, Clerk
1 This proceeding arises out of Cause No. 2009-CI-03462, styled Javier A. Pena d/b/a
Phi Contractors and d/b/a Phi Services and Juan Garcia v. Funding Partners, L.P. alk/a FP
Asset Group, L.P.; SPT Investments, Inc.; James R. Martzall; Acquisition Funding Source, Inc.; ·
FPIC, L.L.C.; Jeap Solutions, L.L.C.; DPIC, L.L.C.; DPLS, L.L.C.; DPLS II, L.L.C.; FBP, Inc.;
FPLS, L.L.C.; FPLS II, L.L.C.; FPMB, Inc.; Prospect, L.L.C.; and Dash Partners, LP, pending
in the 57th Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner
presiding.
*

* * * *
October 19, 2011
No. 04-11-00632-CV
IN REFUNDING PARTNERS, L.P., FPIC, L.L.C., JEAP SOLUTIONS, L.L.C., DPIC,
L.L.C., DPLS, L.L.C., DPLS II, L.L.C., FBP, INC., FPLS, L.L.C., FPLS II, L.L.C., FPMB,
INC., DASH PARTNERS, LP AND PROSPECT, L.L.C.,
Sitting:
Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Original Mandamus Proceeding 1
The Relator's Second Opposed Joint Motion for Abatement of the Underlying Case is
hereby DENIED.
It is so ORDERED on October 19,2011.
ATTESTED TO:
1 This proceeding arises out of Cause No. 2009-C.I-03462, styled Javier A. Pena d/b/a
Phi Contractors and d/b/a Phi Services and Juan Garcia v. Funding Partners, L.P. a/kla FP
Asset Group, L.P.; SPT Investments, Inc.; James·R. Martzall; Acquisition Funding Source, Inc.,·
FPIC, L.L.C.; Jeap Solutions, L.L.C.; DPIC, L.L.C.; DPLS, L.L.C.; DPLS II, L.L.C.; FBP, Inc.;
FPLS, L.L.C.; FPLS II, L.L.C.; FPMB, Inc.; Prospect, L.L.C.; and Dash Partners, LP, pending
in the 57th Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner
presiding.
*

* * * * *
October 19, 2011
No. 04-11-00633-CV
IN REFUNDING PARTNERS, L.P., FPIC, L.L.C., JEAP SOLUTIONS, L.L.C., DPIC,
L.L.C., DPLS, L.L.C., DPLS II, L.L.C., FBP, INC., FPLS, L.L.C., FPLS II, L.L.C., FPMB,
INC., DASH PARTNERS, LP, AND PROSPECT, L.L.C.
Sitting:
Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Original Mandamus Proceeding 1
The Relator's Second Opposed Joint Motion for Abatement of the Underlying Case is
hereby DENIED.
It is so ORDERED on October 19,2011. PER CURIAM
ATTESTED TO:
1 This proceeding arises out of Cause No. 2009-CI-03462, styled Javier A. Pena d/b/a
Phi Contractors and d/b/a Phi Services and Juan Garcia v. Funding Partners, L.P. a/Ida FP
Asset Group, L.P.; SPT Investments, Inc.; James R. Martzall; Acquisition Funding Source, Inc.;
FPIC, L.L.C.; Jeap Solutions, L.L.C.; DPIC, L.L.C.; DPLS, L.L.C.; DPLS II, L.L.C.; FBP, Inc.;
FPLS, L.L.C.; FPLS II, L.L.C.; FPMB, Inc.; Prospect, L.L.C.; and Dash Partners, LP, pending
in the 57th Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner
presiding.
*