Court of Appeals of Texas, Third District, Austin
THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-17-006481, THE HONORABLE SCOTT H. JENKINS, JUDGE
Justices Goodwin, Baker and Triana
J. BAKER, JUSTICE
restricted appeal, Berit McMillan and Gerald McMillan seek to
reverse the trial court's order dismissing their claims
against Tally Two Investment Group, LLC. We will affirm.
October 2015, the McMillans and Tally Two signed a document
that memorialized an agreement between the parties and
Gerald McMillan reached out to Brian Whitten, Manager, for
Tally Two and requested $100, 000 in order to help fund a
project located at 1006 Woodland Ave, Austin 78704. That
project already had a considerable loan attached to the
In consideration for the $100, 000, Gerald McMillan and Berit
McMillan would repay Tally Two $133, 000 prior to April 7,
2016. Also, they agreed to sign a Warranty Deed for the
property located at 522 Sunny Lane, Austin TX 78704 as
collateral. Also, they agreed that the Warranty Deed would
not be filed at the city recording office at this time,
however, a Memorandum of Option to Purchase would be filed at
the city recording office in order to cloud the title and
give public notice that this property could not be purchased.
If the monies owed ($133, 000) is repaid to Tally Two
Investment Group LLC located at 320 Duffy Ln. Austin, TX
78738 prior to April 7, 2016, then all parties agree that the
Memorandum of Option to Purchase will be released, and the
house located at 522 Sunny Ln will be deeded back to Berit
If the monies owed ($133, 000) is not repaid by April 7,
2016, then all parties agree that Tally Two Investment Group
will publicly record the Warranty Deed for 522 Sunny Lane and
have all rights to sell, lease, rent, and convey the
property. In this situation, Berit McMillan and Gerald
McMillan would not have to repay the $133, 000.
The property at Sunny Lane can be sold prior to April 7, 2016
with the understanding that Tally Two Investment Group will
receive $133, 000 and remove all claims to the house.
same date, Berit McMillan executed a General Warranty Deed
conveying 522 Sunny Lane (the Sunny Lane Property) to Tally
January 2017, Tally Two recorded the Warranty Deed in the
Official Public Records of Travis County. After the
McMillans continued to claim ownership of the Sunny Lane
Property, Tally Two filed suit in Travis County district
court (the Tally Two suit) seeking declarations that the Warranty
Deed recorded in January 2017 was valid and binding on the
grantor, Berit McMillan, and that the McMillans were in
breach of the parties' agreement by challenging Tally
Two's title to the Sunny Lane Property. Tally Two also
sought the removal of any cloud on its title to the Sunny
Lane Property and injunctive relief preventing the McMillans
from entering the Sunny Lane Property or further clouding
Tally Two's title.
being duly served, neither McMillan filed an answer or
otherwise responded to the Tally Two suit. In July 2017,
Tally Two filed a motion for a no-answer default judgment.
With its motion, Tally Two submitted Brian Whitten's
affidavit in which he described the agreement between the
parties and the execution and recording of the Warranty Deed
by which Tally Two acquired title to the Sunny Lane Property.
After a hearing, the court signed a final default judgment
stating that Tally Two "presented evidence that [it] is
the fee simple owner of [the Sunny Lane Property], conveyed
to [Tally Two] by Defendant Berit McMillan by that October 6,
2015 General Warranty Deed, recorded on January 23, 2017 
in the Official Public Records of Travis County." The
court granted Tally Two the declaratory relief it sought,
including a declaration that the General Warranty Deed
conveying the Sunny Lane Property to Tally Two was valid and
binding on Berit McMillan, the grantor. The court also
permanently enjoined the McMillans from further clouding
title to the Sunny Lane Property "in any way."
McMillans did not timely perfect an appeal from the default
judgment in the Tally Two suit. Instead, they filed a
restricted appeal six months after the judgment was signed.
See McMillan v. Tally Two Inv. Grp. LLC, No.
03-18-00040-CV, 2018 WL 3849460 (Tex. App.-Aug. 14, 2018,
pet. denied) (mem. op.); see also Tex. R. App. P.
That restricted appeal was dismissed for want of prosecution
after the McMillans failed to comply with a court's order
that they file their brief by a date certain.
November 2017, approximately two months before filing the
restricted appeal from the default judgment rendered in the
Tally Two suit, Berit McMillan filed the underlying
proceeding (the McMillan suit) against Tally Two in Travis
County district court. In that suit, Berit McMillan sought a
declaration that the Warranty Deed was void because it
violated section 21A.002 of the Texas Business and Commerce
Code. Berit McMillan also recorded a Notice of
Lis Pendens regarding the Sunny Lane Property in the Official
Public Records of Travis County. See Tex. Prop. Code
§ 12.007; In re Collins, 172 S.W.3d 287, 292
(Tex. App.-Fort Worth 2005, orig. proceeding) ("The lis
pendens statute gives litigants a method to constructively
notify anyone taking an interest in real property that a
claim is being ...