R-97-05-08-16C - 5/8/1997WHEREAS, the Oak Bluff Homeowners Assoc., Inc. and Michael
Shofner filed a lawsuit against the City of Round Rock, First
Gibraltar Bank, Mike Beneat and Joe Beneat seeking damages and
ownership to a certain 16.604 acre tract of land, and
WHEREAS, the aforesaid parties have determined that they
wish to avoid the expense and uncertainty of continued and further
litigation by resolving and settling amongst themselves all issues,
claims, and complaints asserted against each other, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Compromise and Settlement Agreement and
Release of All Claims, a copy of said agreement being attached
hereto as an Exhibit.
RESOLVED this 8th day of May, 1997.
ATTEST:
E LAND, City Secretary
x \NPDOCS \RBsOLUTI RS7aso8C.WPO /o1n
RESOLUTION NO. R- 97- 05- 08 -16C
CHARLES CULPEPPER, Mayor
City of Round Rock, Texas
COMPROMISE AND SETTLEMENT AGREEMENT
AND RELEASE OF ALL CLAIMS
This Compromise and Settlement Agreement and Release of All Claims (the
"Agreement ") is made by and between OAK BLUFF HOMEOWNERS ASSOCIATION, INC.
a/k/a Oak Bluff Estates, Phase 2 Community Improvement Association, its agents, successors,
representatives, assigns, and predecessors -in- interest (referred to herein as "Oak Bluff') and
MICHAEL SHOFNER, his heirs, agents, successors, representatives and assigns (referred to
herein as "Shofner "), on the one hand, and the CITY OF ROUND ROCK, its agents successors,
representatives, and assigns (referred to herein as "Round Rock "), SPIRO'S STABLE, INC.,
its agents, successors, representatives, and assigns (referred to herein as "Spiro's Stable "), and
First Gibraltar Bank, F.S.B., now known as First Nationwide Bank, a federal savings bank, its
employees, officers, directors, agents, representatives, assigns, and successors -in- interest
(including the Federal Deposit Insurance Corporation, in its capacity as manager of the FSLIC
Resolution Fund, Receiver for Killeen Savings and Loan Association, and in all other capacities)
(collectively referred to herein as "Gibraltar "), on the other hand.
RECITALS:
WHEREAS, prior to the filing of the Lawsuit, Plaintiff Shofner had purchased
real property in that particular subdivision located in Williamson County, commonly known as
Oak Bluff Estates Phase 2; and
WHEREAS, at the time the Lawsuit was filed, Plaintiff Oak Bluff was a
homeowners association made up of various property owners in the Oak Bluff Estates Phase 2
subdivision; and
COMPROMISE SETTLEMENT AORPEMENT AND RELEASE OP ALL CLAIMS
PACE
WHEREAS, in 1990, Gibraltar was the owner of a certain 16.604 acre tract of
land in Williamson County, Texas, more specifically described as an unnumbered lot within
Block D of the Oak Bluff Estates Phase 2 subdivision, and more commonly referred to in the
Lawsuit as the "Property "; and
WHEREAS, it was alleged in the Lawsuit that the Property at one time was
subject to certain covenants, conditions and restrictions, including the Amended and Restated
Declaration of Covenants, Conditions and Restrictions (the "Restrictions ") recorded in Volume
1684, Page 450 in the Real Property Records of Williamson County, Texas; and
WHEREAS, Gibraltar (as the "Declarant" under the Restrictions) undertook to
amend the Restrictions in 1990 so as to exclude the Property from the strictures of the
Restrictions, by filing certain amendment documents in the Real Property Records of Williamson
County, Texas; and
WHEREAS, Gibraltar subsequently conveyed the Property to Round Rock, which
subsequently conveyed the Property to Spiro's Stable, Inc., the current owner and possessor of
the Property; and
WHEREAS, Oak Bluff and Shofner (sometimes collectively referred to hereafter
as "Plaintiffs ") came to believe that the conveyance of the Property by Gibraltar, and subsequent
conveyance of the Property by Round Rock to Spiro's Stable, was improper and in violation of
the Restrictions, which Plaintiffs believed required Gibraltar to convey the Property to one or
more of the Plaintiffs; and
WHEREAS, Gibraltar has asserted that its amendment of the Restrictions to
remove the Property from the strictures of the Restrictions was authorized by the Restrictions,
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OP ALL CLAIMS - PAGE 2
and was properly completed by Gibraltar prior to its conveyance of the Property to Round Rock;
and
WHEREAS, as a result of this dispute, Oak Bluff /Shofner filed suit against Round
Rock, Spiro's Stable, and Gibraltar in the 368th Judicial District Court of Williamson County,
Texas, Cause No. 94 - 295 - C368, styled "Oak Bluff Homeowners Association, Inc. and Michael
Shofner v. City of Round Rock, First Gibraltar Bank, Mike Beneat, Joe Beneat, and Spiro's
Stable, Inc." (the "Lawsuit "), seeking damages and other relief, including an order from the
court awarding to Plaintiffs ownership of and/or usage rights to the Property; and
WHEREAS, the Defendants filed various counterclaims against Plaintiffs in the
Lawsuit seeking damages and other relief; and
WHEREAS, the parties hereto have determined they wish to avoid the expense
and uncertainty of continued and further litigation by resolving and settling amongst themselves
all issues, claims, and complaints asserted or which could have been asserted against each other
in the Lawsuit.
NOW, THEREFORE, in consideration of the above recitals, the mutual promises
and agreements contained herein, and other valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Plaintiffs hereby release and discharge Round Rock, Spiro's Stables, Inc.,
and Gibraltar (sometimes collectively referred to herein as "Defendants ") from and against any
and all claims, causes of action, and demands of whatsoever kind or nature, in law or in equity,
tort or contract, whether known or unknown (including, without limitation, any and all claims
which could be or have been asserted pursuant to any state or federal statutes relative to
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS - PAGE 3
restrictive covenants, deed restrictions, or similar documents, or relative to governmental sale
and /or posting of property, and any claims for breach of contract, imposition of constructive
trust, implied easements, breach of covenant, violation of any deceptive trade practice or
consumer protection statutes or laws, misrepresentation, or fraud) which have been, could have
been, or in the future might be asserted by Plaintiffs against Defendants which arise out of, are
based upon, or are in any way related t� the Lawsuit and/or facts and allegations asserted by the
parties therein. Notwithstanding the foregoing, the parties are not released from their obligations
arising under this Agreement or from any Judgment or other document or agreement executed
in connection with this settlement. Specifically, the Judgment entered in the Lawsuit, the form
of which is attached hereto as Exhibit C, adjudicating among other things Spiro's Stable's rights,
title and interest in and to the Property, shall not be in any way negated, lessened, or invalidated
by this Agreement.
2. Defendants hereby release and discharge Plaintiffs from and against any
and all claims, causes of action, and demands of whatsoever kind or nature, in law or in equity,
tort or contract, whether known or unknown (including, without limitation, any and all claims
which could be or have been asserted pursuant to any state or federal statutes relative to
restrictive covenants, deed restrictions, or similar documents, or relative to governmental sale
and /or posting of property, and any claims for breach of contract, imposition of constructive
trust, implied easements, breach of covenant, violation of any deceptive trade practice or
consumer protection statutes or laws, misrepresentation, or fraud) which have been, could have
been, or in the future might be asserted by Defendants against Plaintiffs which arise out of, are
based upon, or are in any way related to the Lawsuit and /or facts and allegations asserted by the
COMPROMISE SErn3.Mi21T AGREEMENT AND RELEASE OP ALL CLAIMS - PAGE 4
parties therein. Notwithstanding the foregoing, the parties are not released from their obligations
arising under this Agreement or from any Judgment or other document or agreement executed
in connection with this settlement. Specifically, the Judgment entered in the Lawsuit, the form
of which is attached hereto as Exhibit C, adjudicating among other things Spiro's Stable's rights,
title and interest in and to the Property, shall not be in any way negated, lessened, or invalidated
by this Agreement.
3. The parties also agree to, simultaneously with the execution of this
Agreement, execute and cause to be filed immediately Motions to Dismiss with Prejudice, in the
forms attached hereto as Exhibit A, dismissing with prejudice all claims asserted by Plaintiffs
against Defendants in the Lawsuit, and vice versa, accompanied by Orders of Dismissal With
Prejudice in the forms attached hereto as Exhibit B.
4. Plaintiffs also agree to, simultaneously with the execution of this
Agreement, execute and cause to be filed for the judge's signature a Judgment in the form
attached hereto as Exhibit C, which serves to adjudicate Spiro's Stable's right to and ownership
of the Property, and the Plaintiffs' lack thereof. Plaintiffs also agree not to oppose or contest
any effort by Spiro's Stable to have this Judgment severed, if Spiro's Stable deems it necessary
or desirable, so that the Judgment can be finalized.
5. It is understood and agreed that this Agreement shall be binding upon and
inure to the benefit of all parties and their respective representatives, successors, and assigns.
6. It is understood and agreed that this Agreement contains the entire
agreement between the parties and supersedes any and all prior agreements, arrangements, or
understandings between the parties relating to the subject matter hereof. No oral understandings,
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OP ALL CLAIMS - PAGE 5
statements, promises, or inducements contrary to the terms of this Agreement exist. Any
modification or change to this Agreement must be in writing.
7. It is understood and agreed that this is a compromise and settlement of
disputed claims, and that nothing contained herein shall be construed as an admission of liability
by or on behalf of any party, all such liability being expressly denied.
8. It is agreed that if any portion of this Agreement shall be found invalid by
a court of competent jurisdiction, the remaining portions of the Agreement shall remain in full
force and effect. -
9. It is understood and agreed that this Agreement shall be governed by,
construed and enforced in accordance with, and subject to, the laws of the State of Texas.
10. It is understood and agreed that each of the parties hereto shall be
responsible for their own costs, expenses, and attorneys' fees incurred in connection with this
matter.
11. Each of the parties hereto has been represented by independent counsel
who have reviewed and approved this Agreement as to form and content, and each party is
relying upon such party's own counsel to evaluate this Agreement and to advise such party as
to its effect and consequences. IN ENTERING INTO THIS AGREEMENT, NO PARTY TO
THIS AGREEMENT IS RELYING UPON ANY REPRESENTATION, STATEMENT,
WARRANTY, OR PREDICTION OF ANY OTHER PARTY TO THIS AGREEMENT, OR
OF COUNSEL REPRESENTING ANY SUCH OTHER PARTY, EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT OR ANY WRITTEN INSTRUMENT EXECUTED
PURSUANT TO THIS AGREEMENT.
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OP ALL CLAIMS - PAGE 6
12.. Each signatory hereto hereby represents and warrants that he or she has
authority to sign this Agreement in the capacity stated, and to bind such person or entity on
whose behalf he or she is signing this Agreement.
13. Notwithstanding anything to the contrary herein, the parties are not
releasing and do not intend to release hereby any rights they might have with respect to the
enforcement of this Agreement, or the documents or other agreements executed in connection
with this Agreement.
14. In consideration of the above promises, the parties hereto represent and
warrant that they either (a) own the rights, interests, claims, and causes of action ascribed to
them in this Agreement and that no part of such rights, interests, claims, and causes of action
has been assigned or transferred to any other person or entity, or (b) have full authority from
the owner, assignee, or transferee of such rights, interests, claims, and /or causes of action to
execute this Agreement and settle the above - referenced lawsuit (Cause No. 94- 295 -C268) on
their behalf.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective on the 31st day of December, 1996.
COMPROMISE SECr'LEMENT AGREEMENT AND RELEASE OP ALL CLAIMS - PACE 7
OAK BLUFF HOMEOWNERS
ASSOCIATION, INC. a/k/a
Oak Bluff Estates, Phase 2
Community Improvement Association
By:
Its:
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS - PAGE 8
MICHAEL SHOFNER
SPIRO'S STABLE, INC.
Printed Name:
Its:
CITY OF ROUND ROCK
4 46 4
Printed Name: C;f g4etzs L
Cl.! POPERd
Its: /nApe,
FIRST NATIONWIDE BANK,
a Federal Savings Bank
By:
Its:
STATE OF TEXAS
COUNTY OF
BEFORE ME, the undersigned, a Notary Public in and for said County and State,
on this day personally appeared of
OAK BLUFF HOMEOWNERS ASSOCIATION, INC., known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed
the same for the purposes and consideration therein expressed.
1997.
STATE OF TEXAS
COUNTY OF
1997.
§
§
GIVEN under my hand and seal of office this _ day of
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS - PAOE 9
Notary Public, State of Texas
BEFORE ME, the undersigned, a Notary Public in and for said County and State,
on this day personally appeared MICHAEL SHOFNER, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he executed the
same for the purposes and consideration therein expressed.
GIVEN under my hand and seal of office this _ day of
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF §
BEFORE ME, the undersigned, a Notary Public in and for said County and State,
on this day personally appeared Joe Beneat, President of SPIRO'S STABLE, INC., known to
me to be the person whose name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same for the purposes and consideration therein expressed.
GIVEN under my hand and seal of office this day of
1997.
STATE OF TEXAS §
COUNTY OF LUILL /AfnSOt §
BEFORE ME, the undersigned, a Notary Public in and for said County and State,
on this day personally appeared C N,4J? ES CULPEFPE,Q, f A y02 of
CITY OF ROUND ROCK, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed the same for the purposes
and consideration therein expressed.
th
GIVEN under my hand and seal of office this 6, day of lYbq y
1997.
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLkIMS- PAGE 10
Notary Public, State of Texas
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF
§
BEFORE ME, the undersigned, a Notary Public in and for said County and State,
on this day personally appeared , of
FIRST NATIONWIDE BANK, a Federal Savings Bank, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed
the same for the purposes and consideration therein expressed.
1997.
x:1DOCS4VT7Sm020%50337.1
GIVEN under my hand and seal of office this _ day of
COMPROMISE SETTLEMENT AGREEMENT AND RPLEASE OF ALL CLAIMS - PAGE II
Notary Public, State of Texas
OAK BLUFF HOMEOWNERS §
ASSOC., INC. AND MICHAEL §
SHOFNER §
§
VS. §
CITY OF ROUND ROCK, FIRST §
NATIONWIDE BANK, f /k/a §
FIRST GIBRALTAR BANK, MICHAEL §
BENEAT, JOSEPH BENEAT, §
AND SPIRO'S STABLE, INC. §
MOTION TO DISMISS WITH PREJUDICE
TO THE HONORABLE JUDGE OF THE COURT:
OAK BLUFF HOMEOWNERS ASSOCIATION, INC. and MICHAEL
SHOFNER ( "Plaintiffs ") file this Motion for Dismissal With Prejudice of their claims against
Defendants CITY OF ROUND ROCK ( "Round Rock "), SPIRO'S STABLE, INC. ( "Spiro's
Stable ") and FIRST NATIONWIDE BANK, F /K/A FIRST GIBRALTAR BANK ( "Gibraltar ")
in this cause, and in support thereof would show the Court as follows:
The disputes between Plaintiffs, Round Rock, Spiro's Stable, and Gibraltar that
are the subject of this cause have been compromised and settled.
WHEREFORE, Plaintiffs request this Court to sign an order dismissing with
prejudice Plaintiffs' claims against Round Rock, Spiro's Stable, and Gibraltar, with all costs
related to such claims taxed to the parties incurring same.
MOTION TO DISMISS WITH PREJUDICE- PAGE I
NO. 94- 295 -C368
IN THE 368TH
JUDICIAL DISTRICT COURT
WILLIAMSON COUNTY, TEXAS
EXHIBIT
1
MOTION TO DISMISS Wrni PREfUDICE- PAOE 2
Respectfully submitted,
WALSH, AKINS & DAVIS, P.C.
By:
Betsy Lambeth
State Bar No.
Mike Davis
State Bar No.
2300 South III-35, Suite 100
P.O. Box 249
Round Rock, Texas 78680
512/244 -0001 - Telephone
512/244 -0833 - Fax
ATTORNEYS FOR OAK BLUFF
HOMEOWNERS ASSOCIATION, INC.
AND MICHAEL SHOFNER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
served on the following counsel of record by facsimile and/or by certified mail, return receipt
requested on this day of , 1997:
H:\DOCS4 \T7557102015034I.1
Ms. Janice C. McKennon
Attorney at Law
206 E. Main
Round Rock, Texas 78664
James H. Cheatham IV
LAW, SNAKARD & GAMBILL
500 Throckmorton, Suite 3200
Fort Worth, TX 76102
Eric J. Taube
Mitchell D. Savrick
HOHMANN, WERNER & TAUBE, L.L.P.
100 Congress Avenue, Suite 1600
Austin, TX 78701
MOTION TO DISMISS WITH PREJUDICE- PAGE 3
OAK BLUFF HOMEOWNERS
ASSOC., INC. AND MICHAEL
SHOFNER
VS.
CITY OF ROUND ROCK, FIRST
NATIONWIDE BANK, f /k/a
FIRST GIBRALTAR BANK, MICHAEL
BENEAT, JOSEPH BENEAT,
AND SPIRO'S STABLE, INC.
MOTION TO DISMISS WITH PREJUDICE- PAOB I
NO. 94- 295 -C368
§
§
§
IN THE 368TH
JUDICIAL DISTRICT COURT
WILLIAMSON COUNTY, TEXAS
MOTION TO DISMISS WITH PREJUDICE
TO THE HONORABLE JUDGE OF THE COURT:
CITY OF ROUND ROCK, SPIRO'S STABLE, INC., and FIRST NATIONWIDE
BANK, F /K/A FIRST GIBRALTAR BANK ( "Defendants ") file this Motion for Dismissal With
Prejudice of their claims against Plaintiffs OAK BLUFF HOMEOWNERS ASSOCIATION,
INC. ( "Oak Bluff') and MICHAEL SHOFNER ( "Shofner ") in this cause, and in support thereof
would show the Court as follows:
The disputes between Defendants, Oak Bluff, and Shofner that are the subject of
this cause have been compromised and settled.
WHEREFORE, Defendants request this Court to sign an order dismis with
prejudice Defendants' claims against Oak Bluff and Shofner (subject to the Agreed Judgment
entered by the court in this case pursuant to the parties' settlement), with all costs related to such
claims taxed to the parties incurring same.
MOTION TO DISMISS WITH PREIUDICE. PAGE 2
Respectfully submitted,
LAW, SNAKARD & GAMBILL
By:
James H. Cheatham IV
State Bar No. 04165050
500 Throckmorton, Suite 3200
Fort Worth, Texas 76102
817/335 -7373 (Telephone)
817/332 -7473 (Telecopier)
ATTORNEYS FOR DEFENDANTS
C1TY OF ROUND ROCK AND
SPIRO'S STABLE, INC.
HOHMANN, WERNER & TAUBE, L.L.P.
By:
Eric J. Taube
State Bar No. 19679350
Mitchell D. Savrick
State Bar No. 17692200
100 Congress Avenue, Suite 1600
Austin, TX 78701
512/472 -5997 - Telephone
512/472 -5248 - Fax
ATTORNEYS FOR FIRST NATIONWIDE
BANK F /K/A FIRST GIBRALTAR BANK
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
served on the following counsel of record by facsimile by certified mail, return receipt requested
on this _ day of , 1997:
H:IDOCS4 \T7557102o\50367.1
Betsy Lambeth and Mike Davis
WALSH, AKINS & DAVIS, P.C.
2300 South IH -35, Suite 100
P.O. Box 249
Round Rock, Texas 78680
Mr. Eric Taube
HOHMANN, WERNER & TAUBE, L.L.P.
100 Congress Avenue, Suite 1600
Austin, TX 78701 -4042
Ms. Janice C. McKennon
Attorney at Law
206 E. Main
Round Rock, Texas 78664
MOTION TO DISMISS WITH PREJUDICE- PAOB 3
JAMES H. CHEATHAM IV
NO. 94- 295 -C368
OAK BLUFF HOMEOWNERS § IN THE 368TH
ASSOC., INC. AND MICHAEL §
SHOFNER §
VS. § JUDICIAL DISTRICT COURT
§
CITY OF ROUND ROCK, FIRST §
NATIONWIDE BANK, f/k/a §
FIRST GIBRALTAR BANK, MICHAEL §
BENEAT, JOSEPH BENEAT, §
AND SPIRO'S STABLE, INC. § WILLIAMSON COUNTY, TEXAS
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE
On this day the Court considered the Motion to Dismiss with Prejudice filed by
Defendants CITY OF ROUND ROCK ( "Round Rock "), SPIRO'S STABLE, INC. ( "Spiro's
Stable "), and FIRST NATIONWIDE BANK, F /K/A FIRST GIBRALTAR BANK ( "Gibraltar ")
with respect to any and all claims asserted by Round Rock and Spiro's Stable in this cause
against Plaintiffs OAK BLUFF HOMEOWNERS ASSOCIATION, INC. ( "Oak Bluff") and
MICHAEL SHOFNER ( "Shofner "). By their motion, Round Rock, Spiro's Stable, and
Gibraltar have advised the court that their claims against Oak Bluff and Shofner have been fully
compromised and settled and requests that the court dismiss with prejudice all claims and causes
of action which Round Rock, Spiro's Stable, and Gibraltar have or may have against Oak Bluff
and Shofner in this cause, which are not resolved by the Agreed Judgment submitted by the
Parties and entered in this cause. The Court finds that Round Rock's, Spiro's Stable's, and
Gibraltar's motion is well taken and should be GRANTED.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED, that the
claims asserted by Round Rock, Spiro's Stable, and Gibraltar against Oak Bluff and Shofner in
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE- PAGE I
EXHIBIT
S
1
the above - entitled and numbered cause, which are not resolved be and hereby are dismissed in
all respects with prejudice, subject to the Agreed Judgment submitted by the Parties and entered
in this cause. All costs of court are taxed against the party incurring same. All relief not
expressly granted herein is denied.
SIGNED this _ day of , 1997.
APPROVED AND ENTRY
REQUESTED:
James H. Cheatham IV
ATTORNEY FOR DEFENDANTS
ROUND ROCK AND SPIRO'S STABLE, INC.
Mitchell Savrick
Eric Taube
ATTORNEYS FOR DEFENDANT
FIRST NATIONWIDE BANK
H:\DOCS4 \T7557102050370.1
ORDER GRANTING MOTION TO DISMISS WITH PRffiUDICE - PAGE 2
JUDGE PRESIDING
OAK BLUFF HOMEOWNERS
ASSOC., INC. AND MICHAEL
SHOFNER
VS.
CITY OF ROUND ROCK, FIRST
NATIONWIDE BANK, f/k/a
FIRST GIBRALTAR BANK, MICHAEL
BENEAT, JOSEPH BENEAT,
AND SPIRO'S STABLE, INC.
GRANTED.
ORDER GRANTING MOTION TO DLSMISS WITH PREJUDICE- PAGE I
NO. 94- 295 -C368
§
§
§
§
§
§
IN THE 368TH
JUDICIAL DISTRICT COURT
WILLIAMSON COUNTY, TEXAS
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE
On this day the Court considered the Motion to Dismiss with Prejudice filed by
Plaintiffs OAK BLUFF HOMEOWNERS ASSOCIATION, INC. ( "Oak Bluff') and MICHAEL
SHOFNER ( "Shofner ") with respect to any and all claims asserted by Oak Bluff and Shofner
in this cause against Defendants CITY OF ROUND ROCK ( "Round Rock "), SPIRO'S STABLE,
INC. ( "Spiro's Stable "), and FIRST NATIONWIDE BANK, F/K/A FIRST GIBRALTAR
BANK ( "Gibraltar "). By their motion, Oak Bluff and Shofner have advised the court that their
claims against Round Rock, Spiro's Stable, and Gibraltar have been fully compromised and
settled and requests that the court dismiss with prejudice all claims and causes of action which
Oak Bluff and Shofner have or may have against Round Rock, Spiro's Stable, and Gibraltar in
this cause. The Court finds that Oak Bluff's and Shofner's motion is well taken and should be
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED, that the
claims asserted by Oak Bluff and Shofner against Round Rock, Spiro's Stable, and Gibraltar in
the above - entitled and numbered cause be and hereby are dismissed in all respects witjt
prejudice. All costs of court are taxed against the party incurring same. All relief not expressly
granted herein is denied.
SIGNED this _ day of , 1997.
APPROVED AND ENTRY
REOUESTED:
Betsy Lambeth
ATTORNEY FOR PLAINTIFF
H:\DOC34 \T75571020■50369.1
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE- PAGE 2
JUDGE PRESIDING
AGREED JUDGMENT - PAGE 1
NO. 94- 295 -C368
OAK BLUFF HOMEOWNERS §
ASSOC., INC. AND MICHAEL §
SHOFNER §
VS. §
CITY OF ROUND ROCK, FIRST §
NATIONWIDE BANK, f /k/a §
FIRST GIBRALTAR BANK, MICHAEL §
BENEAT, JOSEPH BENEAT, §
AND SPIRO'S STABLE, INC. §
IN THE 368TH
JUDICIAL DISTRICT COURT
WILLIAMSON COUNTY, TEXAS
AGREED JUDGMENT
On this day, OAK BLUFF HOMEOWNERS ASSOCIATION, INC., MICHAEL
SHOFNER, CITY OF ROUND ROCK, and SPIRO'S STABLE, INC. (the "Parties ") presented
this Agreed Judgment. The Parties have entered into this Agreed Judgment in compromise and
settlement of claims pending between the Parties. The Parties' agreement to the entry of this
Judgment is demonstrated by their signatures affixed below.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that
Defendant Spiro's Stable, Inc. is the rightful owner of fee simple title to that certain 16.604 acre
tract of real property (the "Property") situated in the Robert McNutt Survey, Abstract No. 422,
Williamson County, Texas, being an unnumbered lot within Block D of Oak Bluff Estates,
Phase 2, a subdivision whose plat is recorded in Cabinet F, Slides 253 through 259 of the Plat
Records of Williamson County, Texas, said 16.604 acre tract being the southeastern most
portion of said Oak Bluff Estates at the south end of Twin Ridge Parkway, a variable width
right -of -way (R.O.W.) dedicated by said plat, and being more particularly described by metes
EXHIBIT
and bounds in the deed attached hereto as Exhibit A and incorporated herein for all purposes by
reference, free and clear from any claims of right to, ownership of, or usage rights of Plaintiffs.
Defendants are allowed such other writs and processes as may be necessary in the
enforcement and collection of this judgment.
All relief not expressly granted herein is denied.
SIGNED this day of , 1997.
AGREED AS TO FORM AND
SUBSTANCE:
Betsy Lambeth
State Bar No.
WALSH, AKINS & DAVIS, P.C.
2300 South 111-35, Suite 100
P.O. Box 249
Round Rock, Texas 78680
512/244 -0001 - Telephone
512/244 -0833 - Fax
ATTORNEYS FOR OAK BLUFF •
HOMEOWNERS ASSOCIATION, INC.
AND MICHAEL SHOFNER
HADocs4\n5571o2o\50372.1
AGREED rwanmxr - PAGE 2
JUDGE PRESIDING
James H. Cheatham IV
State Bar No. 04165050
LAW, SNAKARD & GAMBILL
500 Throckmorton, Suite 3200
Fort Worth, TX 76102
817/335 -7373 - Phone
817/332 -7473 - Fax
ATTORNEY FOR DEFENDANTS CITY OF
ROUND ROCK AND SPIRO'S STABLE,
INC.
DATE: May 6, 1997
SUBJECT: City Council Meeting - May 8, 1997
ITEM: 16.C. Consider a resolution authorizing the Mayor to execute a •
compromise and settlement agreement and release of all claims
regarding Cause No. 94- 295 -C368 Oak Bluff Homeowners
Association, Inc. and Michael Shofner vs. City of Round Rock, First
Gibraltar Bank, Mike Beneat and Joe Beneat.
SENT BY: XEROX Telecopier 7017; 7 -19 -96 ; 3 :16PM ; 8173327473-1 512 218 7097:# 2
NO. 94- 295 -C368
OAK BLUFF HOMEOWNERS {
ASSOC., INC. AND MICHAEL §
SHOFNER §
I
vs. 4
5
CITY OF ROUND ROCK, FIRST §
NATIONWIDE BANK, f/k/a §
FIRST OIBRALTAR BANK, MICHAEL §
BENEAT, JOSEPH BENEAT, 6
AND SPIRO'S STABLE, INC. 0
STATE OF TEXAS $
COUNTY OF WILLIAMSON
ApMOAVrr OF RBrlB$BNTATIVB OP TUB OW 0? BOUND kO C - MOB 1
IN THE 368TH
AFFIDAVIT OF REPRESENTATIVE OF
TEE CITY OF ROUND ROCK
JUDICIAL DISTRICT COURT
WILLIAMSON COUNTY, TEXAS
BEFORE ME, the undersigned notary public, on this day personally appeared
Joanne Land, who, after being duly sworn, upon his/her oath states the following:
1. "My name is Joanne Land. I am over the age of eighteen
(18), have never been convicted of a felony or crime
involving moral turpitude, and alit fully competent to make
this Affidavit. I am the Assistant City Manager /City
Secretary for the City of Round Rock, Texas. I have
personal knowledge of the facts stated herein, and they are
all true and correct.
2. "In or before June 1991, the City of Round Rock approved
a Lease/Purchase bid proposal submitted by Michael and
Joe Beneat regarding the country club property made the
subject of this suit. The contract authorized the Beneats to
assign their rights under the contract to an assignee of their
choice, so long as the assignee was approved by the City
of Round Rock. Michael and Joe Beneat advised City
representatives that their assignee was to be their
corporation, Spiro's Stable, Inc.,`and such assignment was
approved by the City, as evidenced by the written warranty
SENT BY XEROX Telecopier 7017; 7 -19 -96 ; 3 :16PM ; 81733274734 512 218 7097# 3
amoan17327102014036s.1
deed from the City of Round Rock to Spiro's Stable, Inc.,
by which the City conveyed the subject property to Spiro's
Stable, Inc.
3. 'In connection with the bid process, in which Joe and
Michael Beneat's was the successful bid, the City strictly
followed the advertisement, notice, and hearing
requirements imposed by statute. No Plaintiff in this
lawsuit submitted a bid for the Property, although several
residents of Oak Bluff Estates, Phase 2 Subdivisions were
present at one or more public hearings with respect to such
sale.
"Further, Affiant saith not."
� `I t SUBSCRIBED AND SWORN TO BEFORE ME the undersigned notary on the
` day of July, 1996.
AFFIDAVIT OP RaPRENINTATNB OP Ma CRY OF ROUND ROCK - PAO! 2
CITY OF ROUND ROCK, TEXAS
By:
oanne Land
Assistant City Manager /City Secretary
01))/, L- 1Yl.QJ h-. ftAtO
Notary Public, State of Texas