Burton Creek Development, LTD and Burton Creek Management, LLC v. David Cottrell ( 2015 )

ACCEPTED
15-00014-cv
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/6/2015 4:16:29 PM
Vivian Long, Clerk
CAUSE NO. 07-15-00014-CV
____________________________________________________________
FILED IN
7th COURT OF APPEALS
IN THE SEVENTH COURT OF APPEALS AMARILLO, TEXAS
AMARILLO, TEXAS 5/6/2015 4:16:29 PM
____________________________________________________________
VIVIAN LONG
CLERK
BURTON CREEK DEVELOPMENT, LTD.
AND BURTON CREEK MANAGEMENT, LLC
APPELLANTS
V.
DAVID COTTRELL
APPELLEE
____________________________________________________________
BRIEF OF THE APPELLANTS
____________________________________________________________
HEATH C. POOLE
HOELSCHER, LIPSEY, ELMORE &
POOLE, P.C.
1021 UNIVERSITY DRIVE
COLLEGE STATION, TEXAS 77840
979.846.4726 telephone
979.846.4725 facsimile
heath@hle.com
ATTORNEYS FOR APPELLANTS
IDENTITY OF PARTIES AND COUNSEL
APPELLANTS: BURTON CREEK DEVELOPMENT, LTD. AND
BURTON CREEK MANAGEMENT, LLC (“Burton”)
COUNSEL FOR APPELLANTS:
Heath C. Poole
Hoelscher, Lipsey, Elmore & Poole, P.C.
SBN No. 24027627
1021 University Drive
College Station, Texas 77840
979.846.4726 telephone
979.846.4725 facsimile
heath@hle.com
APPELLEE: DAVID COTTRELL (“Cottrell”)
COUNSEL FOR APPELLEE:
Robert G. Bailey
Robert G. Bailey, P.C.
SBN No. 01536200
3306 Sul Ross
Houston, Texas 77098
832.485.1338 telephone
713.630.0017 facsimile
rbailey@robertbaileypc.com
i
TABLE OF CONTENTS
Identity of Parties and Counsel i
Table of Contents ii
Index of Authorities 1
Statement of Case 2
Statement of Facts 3
Summary of Argument 6
Argument and Authorities 8
Issues Presented
A. The Trial court erred in denying Burton’s Motion for
Summary Judgment.
B. The Trial court erred in granting Cottrell’s Cross-Motion for
Partial Summary Judgment 9
Prayer 15
Certificate of Compliance 16
Certificate of Service 16
Appendix 17
ii
INDEX OF AUTHORITIES
Cases/Statutes Page
Texas Real Estate Licensing Act 2
Texas Occupations Code § 1101.806(c) 2
Neary et al v. MIKOB Properties, Inc., 340 S.W.3d 578
(Tex. App.-Dallas 2011) 3
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) 7
Tex. Builders v. Keller, 928 S.W.2d 479 (Tex. 1996) 9
Lathem v. Kruse, 290 S.W.3d 922 (Tex. App.-Dallas 2009, no pet.) 9
Hall v. Hard, 160 Tex. 565 (1960) 10
Frady v. May, 23 S.W.3d 558, 562
(Tex. App.—Fort Worth 2000, pet denied). 11
Carmack v. Beltway Development Co., 701 S.W.2d 37, 40
(Tex. App.—Dallas 1985, no writ). 12
Landis v. W. H. Fuqua, Inc., 159 S.W.2d 228, 231
(Tex. App.—Amarillo 1942, writ ref’d) 12
Exxon Corp. v. Breezevale, Ltd., 82 S.W.3d 429, 439
(Tex. App.—Dallas 2002, pet. denied) 13
Hairston v. Southern Methodist Univ., 2013 WL 1803549
(Tex. App.—Dallas 2013, pet. denied) 13
Magcobar N. American, v. Grasso Oilfield Svcs.,
736 S.W.2d 787, 796 (Tex. App-Corpus Christi 1987, pet. denied) 14
1
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF CASE
Cottrell contends that an email (“the Email”), sent by a representative
of Burton, wherein possible buyers, potential commissions, uncertain sales
prices, and ambiguously described lands, are discussed, constitutes a
“contract” that satisfies the applicable statute of frauds requirement, as
contained in the Real Estate Dealers License Act (“RELA”) as codified in the
Texas Occupations Code §1101.806(c).
Additionally, Cottrell contends that even if the “contract” does not satisfy
the applicable statute of frauds, that he should be entitled to a commission
based on the doctrine of partial performance, as an exception to the statute
of frauds.
Burton contends that the Email only contemplated the potential sale of
their lands, referred to as apartment land, and is representative of nothing
more than possible deal points. More importantly, the Email is not a contract,
was never intended by either party to be a contract, and most definitely does
not satisfy the statute of frauds as required by the RELA and the Texas
Occupations Code §1101.806 (c).
2
Texas law requires that in order to recover a commission from the sale
of real estate, the following must be evidenced in writing:
1. The agreement must be in writing and signed by the person
charged with paying the commission;
2. The writing must contain a definite commission;
3. The writing must identify the broker to whom the commission is to
be paid; and
4. The writing must either itself or by reference to some other
existing writing, identify with reasonable certainty the land to be
conveyed. Neary et al v. MIKOB Properties, Inc., 340 S.W.3d
578 (Tex. App.-Dallas 2011).
The Email is not a contract. The Email was not a sufficient writing,
compliant with Texas law, in order to recover a real estate commission, nor
does the doctrine of partial performance apply to this case, as an exception
to the statute of frauds, to create an obligation for Burton to pay Cottrell a real
estate commission on the sale of its property.
STATEMENT OF FACTS
Burton were and currently are, the owners of several parcels of real
property located in the City of Bryan, Texas, (collectively referred to herein as
“the Property”) in the general geographical vicinity of East William Joel Bryan
Parkway, East Villa Maria Road, Nash Street, and Broadmoor Drive.
3
Prior to December 14, 2011, Burton had been in discussions regarding
the possible sale of one (1) parcel of land, located within the Property, herein
referred to as (“the Apartment Property”), to a developer for the purpose of
building multi-family residential apartments. During the course of the
discussions regarding the potential sale of the Apartment Property, it was
contemplated that Cottrell, a Texas licensed real estate broker, would be
authorized to bring prospective buyers of the Apartment Property to Burton
for its consideration.
In furtherance of its contemplations regarding the role of Cottrell in
locating prospective buyers for the Apartment Property, Burton sent the Email
to Cottrell which contemplated the payment of a potential real estate
commission upon the sale of the Apartment Property. The language of the
Email states that a real estate commission would apply to the sale, if Cottrell
brought a prospective buyer that could close on a sale of the Apartment
Property, for a sales price in excess of $7.45 per square foot.
The Email recites that a potential commission could be earned.
However, it does not specifically describe the Property that any such
contemplated potential commission, if all conditions precedent were met,
might apply. (See Appendix #1)
4
Ultimately, Burton entered into a written contract and later sold a parcel
of land, located within the Property, to Del Lago Ventures, Inc. Specifically,
that parcel of land was located at the corner of East William Joel Bryan
Parkway and Nash Street. The parcel was purchased by Del Lago Ventures,
Inc. for the sum of $850,000.00. Del Lago Ventures, Inc. or their assigns
subsequently built a “RaceTrac” convenience store and gas station on the
property, and is herein referred to as the “RaceTrac Property”.
Subsequent to the closing on the sale of the RaceTrac Property, Cottrell
made demand on Burton for a commission of $50,015.15, based only on the
sale of the RaceTrac Property. Cottrell claimed that based only on the Email,
he was contractually owed a six percent (6%) commission on the sale
proceeds. However, Cottrell was never hired to market that specific parcel of
land and never performed any work attributable to the sale of that property.
On March 11, 2013, Cottrell filed suit against Burton in Cause No. 13-
000672-CV-272. (See Appendix #2)
On April 10, 2013, Burton filed their Original Answer and Counterclaim
against Cottrell. (See Appendix #3)
On January 24, 2014, after conducting considerable discovery, Burton
filed their Motion For Summary Judgment. (See Appendix #4)
5
On March 17, 2014, Cottrell filed his Cross-Motion for Partial Summary
Judgment. (See Appendix #5)
On April 22, 2014, Burton filed their Response to Plaintiff’s Cross-
Motion for Partial Summary Judgment. (See Appendix #6)
On April 29, 2014, Burton’s and Cottrell’s motions for summary
judgment were heard by the Trial Court.
On June 26, 2014, the Trial Court denied Burton’s Motion for Summary
Judgment and granted Cottrell’s Cross-Motion for Partial Summary Judgment.
The Trial Court awarded Cottrell $50,015.15 in damages. (See Appendix #7)
On November 17, 2014, after conducting a bench trial on the matter of
attorney’s fees, the Trial Court, by Final Judgment, awarded Cottrell
$23,150.00 in attorney’s fees. (See Appendix #8)
On December 16, 2014, Burton filed their Notice of Appeal.
SUMMARY OF ARGUMENT
The Trial Court erred in ruling that Cottrell was entitled to a real estate
commission on the sale of the RaceTrac property.
Burton were entitled to summary judgment, because the writing on
which Cottrell contends he is owed a commission did not satisfy the statute
of frauds, as required by the RELA and the Texas Occupations Code
6
§1101.806( c). Further, Cottrell was not entitled to a commission based on
partial performance, as an exception to the statute of frauds. Burton
demonstrated in their Motion for Summary Judgment that Cottrell’s claimed
commission did not strictly comply with the RELA by failing to satisfy the
statute of frauds, in that it did not either itself, or by reference to some other
existing writing, identify with reasonable certainty the land to be conveyed.
The only reference to the property, as stated in the Email is “our property
located at WJ Bryan, Villa Maria and Nash.” This identification of the property
is insufficient. Inasmuch as Burton owned several tracts of land in the area
of WJ Bryan, Villa Maria and Nash streets, intended for different uses, the
language used in the email does not describe the property with reasonable
certainty and as such failed to strictly comply with the RELA.
In order for the Trial Court to award Cottrell a commission, Cottrell had
the burden to demonstrate that no genuine issues of material fact existed as
to the required elements of compliance with Texas law regarding the payment
of real estate commissions and that he was entitled to judgment as a matter
of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985). In order
to defeat Cottrell’s Motion for Partial Summary Judgment, Burton were
required to present sufficient evidence to raise a genuine issue of fact on
7
each challenged element of their claims. Burton provided the Trial Court
sufficient evidence that raised genuine issues of material fact regarding the
elements required to be proven by Cottrell.
ARGUMENT AND AUTHORITIES
A. The Trial court erred in denying Burton’s Motion for
Summary Judgment.
B. The Trial court erred in granting Cottrell’s Cross-Motion for
Partial Summary Judgment.
The trial court erred in denying Burton’s Motion for Summary Judgment
and awarding Cottrell a real estate commission on the sale of the RaceTrac
property. Burton proved as a matter of law that no genuine issue of material
fact existed regarding its affirmative defense of the statute of frauds as
applied to Cottrell’s claim. Burton were required to prove that the Email, the
alleged contract upon which Cottrell’s claims are based, did not either in the
Email itself or by reference to another writing then in existence, identify with
reasonable certainty the land to be conveyed. Burton did prove as a matter
of law that no genuine issue of material fact existed regarding its affirmative
defense of the statute of frauds as to Cottrell’s claim.
Burton were entitled to summary judgment, because the writing on
which Cottrell contends he is owed a real estate commission did not satisfy
8
the statute of frauds, as required by RELA and the Texas Occupations Code
§1101.806( c) and Cottrell was not entitled to a commission based on partial
performance, as an exception to the statute of frauds. Burton demonstrated
in their Motion for Summary Judgment that Cottrell’s claimed commission did
not strictly comply with RELA and failed to satisfy the statute of frauds, in that
it did not either itself, or by reference to some other existing writing, identify
with reasonable certainty the land to be conveyed. The only reference to the
property, as stated in the email is “our property located at WJ Bryan, Villa
Maria and Nash.” This identification of the property is insufficient. As stated
in Tex. Builders v. Keller, 928 S.W.2d 479 (Tex. 1996), “while a metes and
bounds description is not necessary, the writing must furnish the data to
identify the property with reasonable certainty.” In Lathem v. Kruse, 290
S.W.3d 922 (Tex. App.-Dallas 2009, no pet.), the court explained “strict
compliance” with RELA is required. In Lathem, the issue of identification of
the property with reasonable certainty was discussed and the facts of that
case stated that the contemplated deal sheet described the property as “those
particular apartment communities commonly known as Harbortree, Balboa,
Capital Estates, Wisteria Gardens, Oaks of Brittany, Kensington Club I&II,
Stonehaven at the Galleria and Fondren Court.” No other location or address
9
was given. Further, just as in the instant case, no reference is made to any
other existing writing that further describes or identifies the property. In
Lathem, the court questioned whether or not this type of description complies
with “reasonable certainty”. Inasmuch as Burton owned several tracts of land
in the geographic area of WJ Bryan, Villa Maria and Nash streets, intended
for different uses, the language used in the email does not describe the
property with reasonable certainty and as such failed to strictly comply with
the RELA as it pertained to the RaceTrac property. The RaceTrac property
is several blocks from Villia Maria Road, in fact.
The RELA, is an exercise of the police power of the State of Texas to
regulate a private business which affects the public interest. Hall v. Hard, 160
Tex. 565 (1960). As part of that regulation, the Legislature has seen fit to
regulate real estate licensees by codifying a statute of frauds, in order to
prevent fraud in real estate commission agreements. Our courts require strict
compliance with the terms of the RELA, if a broker is to use the courts for
recovery of his fees or charges for his services. Id., at 572. Thus, Cottrell,
in order to collect his alleged fees, must strictly comply with the provisions of
RELA, including the required statute of frauds.
The validity of a writing is determined at the time the buyer is procured.
10
Frady v. May, 23 S.W.3d 558, 562 (Tex. App.—Fort Worth 2000, pet denied).
The writing upon which Cottrell’s claim is based is dated December 14, 2011.
Cottrell testified that he procured the buyer in 2009 or 2010. See Appendix
# 6. Cottrell could not have relied on the alleged agreement at a time when
it did not exist. Also, had Cottrell procured a buyer for the RaceTrac property,
prior to the existence of the Email, why did he not secure additional
assurances and/or an actual contract confirming the right to a future sale of
and real estate commission for the RaceTrac property. Only one conclusion
can be drawn from the facts: the parties never contemplated or agreed
Cottrell was to receive a real estate commission on the RaceTrac property.
Further, Cottrell, undoubtedly understanding that he failed to strictly
comply with the RELA, resorted to attempting to rely on the theory of partial
performance in an effort to circumvent the strict compliance standard of the
statute of frauds. However, there are certain requirements which must be
proven in order to recover under that theory as well. As with the statute of
frauds, strict compliance with these requirements is also necessary to prevent
the exception from destroying the codified statute of frauds requirements. In
order to correctly apply the partial performance exception to the statute of
frauds, there must be strong evidence establishing the existence of an
11
agreement and its terms. Carmack v. Beltway Development Co., 701 S.W.2d
37, 40 (Tex. App.—Dallas 1985, no writ). In the instant case, there is no
strong evidence that established the existence of any agreement and or its
terms. The evidence in this case shows just the opposite. The Email, that
Cottrell claims is a contract, only discusses the Apartment land. However, as
evidenced herein even that description does not adequately identify the
property. The Email relied on by Cottrell fails to set forth the essential terms
of the alleged contract. In Landis v. W. H. Fuqua, Inc., 159 S.W.2d 228, 231
(Tex. App.—Amarillo 1942, writ ref’d), a broker’s full performance alone is not
sufficient to take a commission agreement out of the statute of frauds,
because such a construction would nullify the statute. Additionally, a party
acting in reliance on the alleged contract must suffer a substantial detriment
for which he has no adequate remedy. Exxon Corp. v. Breezevale, Ltd., 82
S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied). Here, Cottrell did not
demonstrate that it suffered any detriment. Further, there must be affirmative
corroboration by both parties of any missing contested terms. Lathem v.
Kruse, 290 S.W.3d 922, 928 (Tex. App.—Dallas 2009, no pet.). The evidence
in the instant case does not corroborate any of the missing terms. Instead it
is evident that the offer of a commission contemplated the sale of the
12
Apartment land, and not the RaceTrac property. The case law is clear that
if both parties do not affirmatively corroborate the same missing term(s), then
there can be no contract or agreement. Partial performance, if any, must be
unequivocably referable to the agreement and corroborative of the fact that
a contract was actually made. Hairston v. Southern Methodist Univ., 2013
WL 1803549 (Tex. App.—Dallas 2013, pet. denied). Partial performance
must be such as could have been done with no other design than to fulfill the
particular agreement sought to be enforced. Without such precision, the acts
of performance do not tend to prove the existence of the parol agreement
sought to be enforced. Here, the performance, if any, of Cottrell could have
been done with a design to make the Apartment land (or another part of the
development) more attractive to a developer, and thus was not unequivocably
referable to the alleged agreement, nor was it corroborative of the fact that the
parties intended to enter a contract for the RaceTrac property. “The relevant
issue is not whether there is evidence that the performance could be referable
to the contract which a party is trying to enforce; rather, it is whether there is
evidence that the performance is solely referable to the contract.” citing
Breezevale, 82 S.W.3d at 439-40.
Finally, even if partial performance could be proven, only reliance
13
damages are available. Lost profits or other contractual damages are not
available. Magcobar N. American, v. Grasso Oilfield Svcs., 736 S.W.2d 787,
796 (Tex. App-Corpus Christi 1987, pet. denied). Cottrell provided no proof
to the Court that it suffered any reliance damages, only that he is entitled to
the full bargain of the alleged contract, a full six percent (6%) commission for
the sale of the RaceTrac property. The case law is clear that a party is not
entitled to lost profits, i.e. the full commission, and as such, Cottrell is not
entitled to the commission based on his claimed partial performance theory.
The trial court erred in granting Cottrell’s Motion for Partial Summary
Judgment. Cottrell was required to prove as a matter of law, that no genuine
issues of material fact existed relative to each element of the RELA’s statute
of frauds, and the elements of partial performance. In the event this Court
does not believe that Burton proved its affirmative defense as a matter of law
and is not entitled to judgment, this case should be remanded back to the
Trial Court because the evidence is clear that Cottrell failed to carry his
burden to prove all elements of his cause(s) of action as a matter of law and
that no genuine issue of material facts exist. This Court is required to review
the grant of a summary judgment de novo. Gen. Mills Rests., Inc. v. Texas
Wings, Inc., 12 S.W.3d 827 (Tex.App.-Dallas 2000, no pet.). To defeat
14
Cottrell’s Motion for Partial Summary Judgment, Burton were required to
present sufficient evidence to raise a genuine issue of material fact on each
challenged element of Cottrell’s claims. Burton did that in this case and as
such the Trial Court erred in granting Cottrell’s summary judgment motion.
PRAYER
Burton pray that this Court of Appeals reverse and render regarding the
decision of the Trial Court that Burton owe a real estate commission in the
amount of $50,015.15 and attorney’s fees of $23,150.00. Alternatively,
Burton pray that this Court of Appeals reverse and remand the decision of the
Trial Court and send this case back to the Trial Court so that all issues may
be ultimately determined by a fact finder.
Respectfully submitted,
HOELSCHER, LIPSEY, ELMORE & POOLE, P.C.
By: _____/s/ Heath C. Poole _____
HEATH C. POOLE
SBN No. 24027627
1021 UNIVERSITY DRIVE
COLLEGE STATION, TEXAS 77840
TELEPHONE: 979-846-4726
FACSIMILE: 979-846-4725
ATTORNEYS FOR APPELLANTS
15
CERTIFICATE OF COMPLIANCE
I hereby certify that this document contains 3,527 words. I have relied
upon the word count of my computer program being used to prepare the
document. This document further complies in that it is prepared in 14-point
font.
_____/s/ Heath C. Poole _____
HEATH C. POOLE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of
Appellants has been delivered to the attorney of record for Cottrell, Mr. Robert
G. Bailey, Robert G. Bailey, P.C., 3306 Sul Ross, Houston, Texas 77098.
_____/s/ Heath C. Poole _____
HEATH C. POOLE
16
APPENDIX
1. Email that is the basis of the litigation;
2. Plaintiff’s Original Petition;
3. Defendant’s Original Answer and Counterclaim;
4. Defendant’s Motion for Summary Judgment;
5. Plaintiff’s Cross-Motion for Partial Summary Judgment;
6. Defendants’ Response to Plaintiff’s Cross Motion for Partial Summary
Judgment;
7. Order Granting Plaintiff’s Cross-Motion for Partial Summary Judgment;
and
8. Final Judgment.
17
David Cottrell
From: Paul Levant)a (pauitfibrazoatmce.com)
Sant: Wednesday, December 14, 2011 10:35 PM
To: 'Pool Levant ia’; David Cottrell
Cc: jennyfijennyblack.com; 'neltfifinerhomosonline.com’; 'Bill Kotlen*
Subject: RE: Land (or Sale Neeh 8nd WJBryan
David,
As a clarification, the 6% commission will cover your commission of %3 and a %i commission to the buyer agent that Is
bringing the group out of Dallas. Please confirm that this Is correct so there Is no misunderstanding.
Thanks,
Paul
From: Paul Leventls fmallto;paul]@brazostrace.coml
Sent: Wednesday, December 14, 2011 7:22 AM
To: 'David Cottrell'
Cc: 11: ’nell@flnerhomesonllne.com’; ’Bill Kotfan’
Subject: Land for Sate Nash and WJBryan
David,
Per our conversation yesterday, Burton Creek Development will pay you a %6 commission for any buyer that you bring
to the table who closes on our property located at WJ Bryan, Villa Marla and Nash. Please note, we have a group who Is
willing to buy our apartment land at $7/sf, therefore, the amount for your buyer would need to be $7.45/sf to cover
your 6% commission.
We can talk about the other tracts and pricing when we meet later this week.
Thanks,
Paul
l
Filed
13 March 11 P3:21
Marc Hamlin
District Cleric
Brazos County
Krystal Hawk
No.
DAVID COTTRELL § IN THE DISTRICT COURT OF
§
VS. § BRAZOS COUNTY, TEXAS
§
BURTON CREEK DEVELOPMENT, LTD., §
BURTON CREEK MANAGEMENT, LLC §
AND BRAZOS TRACE, LLC § JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION,
REQUEST FOR DISCLOSURE AND
REQUEST FOR PRODUCTION OF DOCUMENTS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, David Cottrell, Plaintiff, complaining of Burton Creek Development, Ltd.,
Burton Creek Management, LLC and Brazos Trace, LLC, Defendants, and as grounds therefor would
show the Court as follows:
I.
1 . 1 Discovery is intended to be conducted under Level 1 of Rule 190, Texas Rules of Civil
Procedure.
II.
2. 1 David Cottrell (“Cottrell”), Plaintiff, is an individual residing in Harris County, Texas.
2.2 Burton Creek Development, Ltd. (“Development”), a Defendant, is a limited partnership
and has its principal place of business in Brazos County, Texas. It may be served with process by
serving its registered agent, Paul J. Leventis, at 1 722 Broadmoor Dr., Suite 212, Bryan, Texas 77802.
2.3 Burton Creek Management, LLC (“Management”), a Defendant, is a limited liability
company and has its principal place of business in Brazos County, Texas. It is the general partner
of Development. It may be served with process by serving its registered agent, Paul J. Leventis, at
1722 Broadmoor Dr., Suite 212, Bryan, Texas 77802.
2.4 Brazos Trace, LLC (“Brazos Trace”), a Defendant, is a limited liability company and has
its principal place of business in Brazos County, Texas. It may be served with process by serving
its registered agent, Paul J. Leventis, at 1722 Broadmoor Dr., Suite 212, Bryan, Texas 77802.
III.
3.1 Venue is proper in Brazos County, Texas, because Brazos County is the county in which
all or a substantial part of the events or omissions giving rise to the claims asserted herein occurred.
3.2 Venue is proper in Brazos County, Texas as to each Defendant, because Brazos County
is the county in which each Defendant has its principal office in this state and each Defendant is not
a natural person.
3.3 Venue is proper in Brazos County, Texas, as to all of the Defendants, because (a) all of
the claims asserted herein arise out of the same transaction, occurrence, or series of transactions or
occurrences and (b) Cottrell has established proper venue against one or more of the Defendants.
IV.
4.1 Cottrell is a real estate broker licensed by and in good standing with the Texas Real
Estate Commission.
4.2 Brazos Trace entered into a written contract (the “Contract”) in writing with Cottrell, by
which Cottrell was engaged to assist in selling a tract of land (the “Property”) owned by
Development and located in Bryan, Texas. A true and correct copy of the Contract is attached hereto
as Exhibit A. A detailed legal description and partial plat of a survey of the Property are set forth
in Exhibit B, attached hereto. Under the Contract, it was agreed that Cottrell would be paid a
commission of 6% if he brokered a sale of the Property.
4.3 Cottrell was contacted by representatives of RaceTrac Petroleum, Inc., who expressed
2
interest in purchasing the Property. Cottrell introduced them to Defendants. Development entered
into a contract to sell the Property to Del Lago Ventures, Inc. or some other affiliate of RaceTrac
Petroleum, Inc. Development and then sold the Property to that entity.
4.4 Cottrell has fully performed his obligations under the Contract by bringing a buyer,
RaceTrac or an affiliate thereof, of the Property to Development. Development knowingly accepted
Cottrell’s services by selling the Property to RaceTrac or its affiliate. It received the benefits of the
sale that had been arranged by Cottrell, namely, the sales price.
4.5 Cottrell has made demand on Defendants for payment of his commission, believed to
be $42,000.00, but they have failed and refused to do so.
V.
5.1 Brazos Trace made the Contract with Cottrell as agent for Development. In doing so it
acted within the course and scope of the authority granted to it by Development, whether actual or
apparent. Development has breached the Contract made on its behalf by Brazos Trace by failing to
pay Cottrell the 6% commission that he earned for enabling Development to sell the Property to
RaceTrac. As a result of Development’s breach of the Contract, Cottrell has been damaged the sum
of $42,000.00, for which Cottrell now sues Development.
5.2 Management is the general partner of Development and, as such, is jointly and severally
liable with it for Development’s breach of the Contract.
VI.
6. 1 In the alternative, if Brazos Trace exceeded its authority, actual or apparent, by entering
into the Contract on behalf of Development, then Brazos Trace is liable to Cottrell for its breach of
the Contract, for which Cottrell now sues Brazos Trace.
3
VII.
7.1 All conditions precedent to the right of Cottrell to recover the relief requested herein
have occurred or have been satisfied.
VIII.
8.1 Cottrell is entitled to recover a reasonable attorney’s fee pursuant to Ch. 38, Texas Civil
Practice and Remedies Code.
IX.
REQUEST FOR DISCLOSURE
Pursuant to Rule 194, each Defendant is requested to disclose, within 50 days of service of
this request, the following information or materials:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the responding party’s claims
or defenses (the responding party need not marshal all evidence that may be offered
at trial);
(d) the amount and any method of calculating economic damages;
(e) the name, address, and telephone number of persons having knowledge of relevant
facts, and a brief statement of each identified person’s connection with the case;
(f) for any testifying expert:
(1 ) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and
a brief summary of the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to the control of the responding party,
documents reflecting such information;
4
(4) if the expert is retained by, employed by, or otherwise subject to the control
of the responding party:
(A) all documents, tangible things, reports, models, or data compilations
that have been provided to, reviewed by, or prepared by or for the
expert in anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography;
(g) any indemnity and insuring agreements described in Rule 192.3(1);
(h) any settlement agreements described in Rule 192.3(g);
(i) any witness statements described in Rule 192.3(h); and
(1) the name, address, and telephone number of any person who may be designated as
a responsible third party.
X.
REQUEST FOR PRODUCTION OF DOCUMENTS
Each Defendant is requested to respond to the following Request for Production within the
time and in the manner required by Rule 196, Tex. R. Civ. Pro., and is requested to produce the
requested documents at 10:00 a.m. on the 50lh day after service, which production shall be at the
offices of Robert G. Bailey, P.C., 3306 Sul Ross, Houston, Texas 77098 or at such other time and
place as may be mutually agreed in writing by the parties:
1 . All statements which are discoverable pursuant to Rule 192.3(h), Tex. R. Civ. Pro.
RESPONSE:
2. All documents, tangible things, reports, models, or data compilations that have been
provided to, or reviewed by, or prepared by or for all testifying experts and all consulting experts
whose opinions, mental impressions or work product were reviewed by a testifying expert and the
expert’s current resume and bibliography.
RESPONSE:
3. The contracts or other documents setting forth the scope of engagement of each testifying
expert and all consulting experts whose opinions, mental impressions or work product were reviewed
5
by a testifying expert and all invoices you received from each such experts.
RESPONSE:
4. The settlement statement for your sale of the Property described in Exhibit B, attached
hereto..
RESPONSE:
5. All written communications, including emails, and including enclosures and attachments,
between you and the other parties to this suit regarding your efforts to sell the Property described in
Exhibit B, attached hereto..
RESPONSE:
WHEREFORE, PREMISES CONSIDERED, Cottrell prays that the Defenants be cited to
appear and answer herein and, upon final trial hereof, Cottrell have and recover judgment against
Development and Management, jointly and severally, for actual damages of $42,000.00, attorney’s
fees, pre- and post-judgment interest and costs of suit. In the alternative, Cottrell prays for judgment
against Brazos Trace for actual damages of $42,000.00, attorney’s fees, pre- and post-judgment
interest and costs of suit. Cottrell prays for such other and further relief to which he may be justly
entitled.
Respectfully submitted,
ROBERT G. BAILEY, P.C.
/S/ ROBERT G. BAILEY
By:
_
Robert G. Bailey
State Bar No. 01536200
3306 Sul Ross
Houston, Texas 77098
Land: 832-485-1338
Cell: 713-819-5534
Fax: 713-630-0017
Email: rbailey@robertbaileypc.com
ATTORNEY FOR PLAINTIFF
6
David Cottrell
From: Paul Leventis [paull@brazostrace.com]
Wednesday, December 14, 2011 10:35 PM
'Paul Leventk1; David Cottrell
jenny@jennyblack.com; ’neHgfinerhomesonline.com'; 'Bill Kotlan’
Subject: RE: Land for Sale Nash and WJBryan
David,
As a clarification, the 6% commission will cover your commission of %3 and a %3 commission to the buyer agent that is
bringing the group out of Dallas. Please confirm that this Is correct so there is no misunderstanding.
Thanks,
Paul
From: Paul Leventis f mdllto:pau)l@brazostrace.com1
Sent: Wednesday, December 14, 2011 7:22 AM
To: 'David Cottrell'
Cc: ,': ’neil@flnerhomesonline.com'; 'Bill Kotlan'
Subject: Land for Sate Nash and WJBryan
David,
Per our conversation yesterday, Burton Creek Development will pay you a %6 commission for any buyer that you bring
to the table who closes on our property located at WJ Bryan, Villa Maria and Nash. Please note, we have a group who is
willing to buy our apartment land at $7/sf, therefore, the amount for your buyer would need to be $7.45/sf to cover
your 6% commission.
We can talk about the other tracts and pricing when we meet later this week.
Thanks,
Paul
EXHIBIT
1
Legal Description of Contract Property
Seller: Brazos Trace, LLC
Purchaser: Del Lago Ventures, Inc.
Contract Property location: SWC William J Bryan Pkwy & Nash Road
Bryan, TX
LEGAL DESCRIPTION:
A PARCEL OF LAND SITUATED IN THE CITY OF BRYAN, TEXAS. MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY OF NASH DRIVE AND THE SOUTHERLY RIGHT OF
WAY OF E WILLIAM J BRYAN PARKWAY; THENCE CONTINUE ALONG SAID SOUTHERLY RIGHT OF WAY S Ba'IS'AS” W A
OISTANCE OF 40.18’ TO A POINT; THENCE S 82’38’2r W A DISTANCE OF 202.15’ TO A POINT; THENCE ALONG A
CURVE YO THE RIGHT HAVING AN ARC LENGTH OF 21.81'. A RADIUS OF 766.20’, SUBTENDEO BY A CHORD BEARING
AND DISTANCE OF S 83’03’35" W, 21.81’ TO A POINT; THENCE DEPARTING SAID SOUTHERLY RIGHT OF WAY S 07'21’39”
E A DISTANCE OF 259.67’ TO A POINT; THENCE N 82’38’2r E A DISTANCE OF 282.69’ TO A POINT ON THE WESTERLY
RIGHT OF WAY OF NASH DRIVE; THENCE ALONG SAID WESTERLY RIGHT OF WAY FOLLOWING A CURVE TO THE LEFT
HAVING AN ARC LENGTH OF 117.36’, A RADIUS OF 535.00’, SUBTENDED BY A CHORD BEARING AND DISTANCE OF N
01’22‘44‘‘ W. 117.13’ TO A POINT; THENCE N OTÿAS' W A OISTANCE OF 113.39’ TO A POINT; THENCE N 52’39’48" W
A DISTANCE OF 42.43’ TO THE POINT OF BEGINNING. CONTAINING 77,577 SQUARE FEET OR 1.781 ACRES MORE OR
LESS.
NAfltUÿ SFVYAN PA*"*
20J-*
z
1
1
%<
m
PROPERTY
2
EXHIBIT B A
I1
CIVIL CASE INFORMATION SHEET
CAUSE NUMBER (FOR CLERK USE ONLY)-. \ "ÿ-QP \P ~C_ COURT (FOR CLERK USE ONLY):
STYLED David Cottrell vs. Burton Creek Development, Ltd., et al.
(e.g., John Smith v. All American Insurance Co; In re Mary Ann Jones; In the Matter of the Estate of George Jackson)
A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new civil, family law, probate, or mental
health case or when a post-judgment petition for modification or motion for enforcement is filed in a family law case. The information should be the best available at
the time of filing. This sheet, approved by the Texas Judicial Council, is intended to collect information that will be used for statistical purposes only. It neither replaces
nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or
supplementation, and it is not admissible at trial. __
1. Contact information for person completing case information sheet: Names of parties in case: or entity completing sheet is;
0Attorney for Plaintiff/Petitioner
Name: Email: PlaintifT(s)/Petitioner(s): □Pro Se Plaintiff/Petitioner
Robert G. Bailey rbailey@robertbaileypc.com David Cottrell □Title IV-D Agency
□Other:
Address: Telephone:
3306 Sul Ross 832-485-1338 Additional Parties in Child Support Case:
Defendant(s)/Respondent($): Custodial Parent:
City /State/Zip: Fax:
Burton Creek DevelopmentrLÿh -
Houston, TX 77098 713-630-0017
Burton Creek Management??cCt:??odial Parent
Signature: State Bar No:
Brazos Trace, LLC
Is/ ROBERT G. BAILEY 01536200 Presumed Father:
[Attach additional page as necessary to list all parties]
2. Indicate case type, or identify the most Important issue In the case (select only 1):
Civil Family Law
Contract _ Injury or Damage _ Real Property
□Eminent Domain/
Marriage Relationship
□Annulment
Post-judgment Actions
A (non-TItle IV-D)
□Enforcement
□Modification—Other
Debt/Contract GAssaulL/Battery
§Consumer/DTPA
Debt/Contract
□Fraud/MDebt/Contract:
□Construction
□Defamation
Malpractice
Condemnation
□Partition
□Quiet Title
□Trespass to Try Title
□Declare Marriage Void
Divorce
□With Children
□No Children
□Modification
_ —
Custody
Title IV-P
□Other □Accounting □Enforcement/Modification
□Legal □Other Property: Q Paternity
— □Medical □Reciprocals (UIFSA)
Foreclosure
□Home Equity Expedited □Other Professional □Support Order
□Other Foreclosure Liability:
□Franchise Related to Criminal
□insurance □Motor Vehicle Accident Matters Other Family Law Parent-Child Relationship
□ Landlord/Tenant
□Non-Competition
□Premises
Product liability
□Expunction
□Judgment Nisi
□Enforce Foreign
Judgment
□Adoption/Adoption with
Termination
□Partnership □Asbestos/Silica □Non-Disclosure □Habeas Corpus □Child Protection
□Seizure/Forfeiture
□Other Contract: □Other Product Liability
List Product: □Writ of Habeas Corpus
Pre-indictment
— □Name Change
□Protective Order
□Removal of Disabilities
□Child Support
□Custody or Visitation
□Gestational Parenting
□Other Injury or Damage: □Other; of Minority □Grandparent Access
□Other: QParentage/Patemity
□Termination of Parental
Rights
Employment Other Civil
□Other Parent-Child:
□Discrimination □Administrative Appeal □Lawyer Discipline
□Retaliation □Antitrust/Unfair □Perpetuate Testimony
□Termination Competition □Securities/Stock
□Workers’ Compensation
□Other Employment:
□Code Violations
□Foreign Judgment _
□Tortious Interference
□Other:
□intellectual Property
_ Tax _
—
Probate & Mental Health
□Tax Appraisal
.
□Guardianship Adult
—
Probate/Wills/Intestate Administration
□Tax Delinquency □Dependent Administration □Guardianship Minor
□Other Tax □independent Administration
□Other Estate Proceedings
□Mental Health
□Other: _
3. Indicate procedure or remedy, If applicable (may select more than 1): ; :
[Appeal from Municipal or Justice Court □Declaratory Judgment □Prejudgment Remedy
□Arbitration-related □Garnishment □Protective Order
□Attachment □interpleader □Receiver
□Bill of Review □License □Sequestration
□Certiorari □Mandamus □Temporary Restraining Order/Inj unction
□Class Action □Post-judgment □Turnover
Brazos Trace, LLC Delivery Method: Local Sheriffs Fee Address: Paul J. Leventis, Registered AGent
1722 Broadmoor Dr., Suite 212
Bryan, TX 77802 Name: Burton Creek Development, Ltd. Delivery Method: Local Sheriffs Fee Address:
Paul J. Leventis, Registered AGent
1722 Broadmoor Dr., Suite 212
Bryan, TX 77802 Name: Burton Creek Management, LLC Delivery Method: Local Sheriffs Fee Address:
Paul J. Leventis, Registered AGent
1722 Broadmoor Dr., Suite 212
Bryan, TX 77802
'#£?
CLERK OF THE COURT ATTORNE Y FOR PLAINTIFF
Marc Hamlin BAILEY, ROBERT
300 East 26th Street, Suite 216 3306 SUL ROSS
Brvan, TX 77803 HOUSTON, TX 77098
THE STATE OF TEXAS CIT ATION
NOTICE TO THE DEFENDANT: “You have been sued. You may employ an attorney. If you or your attorney do not file a
written answer with the clerk who issued this citation by 10:00 a.m on the Monday next following the expiration of twenty days after
you were served this citation and petition, a default judgment may be taken against you.”
TO Burton Creek Management LLC who may be served through registered agent Paul J. Leventis
at 1722 Broadmoor Dr., Suite 212, Brvan. Tx 77802 Defendant,
Greeting:
You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o’clock A.M. of the Monday next after the expiration of twenty' days after the date of
service of this citation before the Honorable 272nd District Court of Brazos County, Texas at the
Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013,
in the case, numbered 13-000672-CV-272od the docket of said court, and styled,
David Cottrell Plaintiff
VS.
Burton Creek Development LTD.. Burton Creek Management LLC and Brazos Trace. LLC
Defendant
The nature of Plaintiff s demand is fully shown by a true and correct copy ofPlaintiff s Original
Petition accompanying this citation and made a pan thereof.
The officer executing the writ shall promptly serve the same according to requirements of the law,
and the mandates thereof, and make due return as the law directs.
Issued and given under my hand and sealed of said Court at office, this the 15th day of March, 2013
Marc Hamlin
Cle/k of Brazos Countv, Texas
/ i 1/
Deputy
_ _ _ M.
OFFICER’S RETURN
_
Came to hand on the
Executed at
day of
within the County' of _
, 20_ , at.
at
o’clock
o’clock
,M.
on the day of 20 _ , by delivering to the within
named
_each.
in person, a true copy of this citation together with the accompanying copy of the petition, having first
attached such
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery'.
Total fee for serving this citation
Sheriff Account
To certify' which witness my hand officially.
No.
For Clerk’s Use
Taxed
Returned Record
Sheriff of
By _
_County, Texas
Deputy'
lfl5££&
aa
'1|"T r
CLERK OF THE COURT ATTORNEY FOR PLAINTIFF
Marc Hamlin BAILEY, ROBERT
300 East 26th Street, Suite 216 3306 SUL ROSS
Bryan, TX 77803 HOUSTON, TX 77098
THE STATE OF TEXAS CITATION
NOTICE TO THE DEFENDANT: “You have beer sued You may employ an attorney. If you or your attorney do not file a
written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
you were served this citation and petition, a default judgment may be taken against you.”
TO Burton Creek Development, Ltd, who may be served through registered agent Paul J. Leventis at
1722 Broadmoor Dr.. Suite 212, Bryan. Tx 77802 Defendant,
Greeting:
You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o’clock A.M. of the Monday next after the expiration of twenty days after the date of
service of this citation before the Honorable 272nd District Coart of Brazos County, Texas at the
Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013,
in the case, numbered 13-000672-CV-272on the docket of said court, and styled,
David Cottrell Plaintiff
VS.
Burton Creek Development LTD., Burton Creek Management. LLC and Brazos Trace. LLC
Defendant
The nature of Plaintiffs demand is fully shown by a true and correct copy ofPlaintiff s Original
Petition accompanying this citation and made a part thereof.
The officer executing the writ shall promptly serve the same according to requirements of the law,
and the mandates thereof, and make due return as the law directs.
Issued and given under my hand and sealed of said Court at office, this the ISthdav of March. 2013
Marc Hamlin
Cleÿk of Bravos County j Texas
By o4VU Deputy'
_
Came to hand on the
OFFICER’S RETURN
dav of ,20
_
_,at. o’clock JvL _
_, within the County' of o’clock
_
Executed at
.M.
_ _
at
on the day of , 20 , by delivering to the within
named _
each,
in person, a true copy of this citation together with the accompanying copy of the petition, having first A’
attached such
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery.
Total fee for serving this citation
Sheriff Account
To certify which witness my hand officially.
No.
For Clerk’s Use
Taxed
Returned Record
Sheriff of
Bv _
_County, Texas
Deputy'
0
N
■ｓＢＥａＢＢｇ
J5ES3S
W
CLERK OF THE COURT ATTORNEY FOR PLAINTIFF
Marc Hamlin BAILEY, ROBERT
300 East 26th Street, Suite 216 3306 SUL ROSS
Br/an. TX 77803 HOUSTON, TX 77098
THE STATE OF TEXAS CITATION
NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney. If you or your attorney do not file a
written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiraion of twenty' days after
you were served tills citation and petition, a default judgment may be taken against you.”
TO Brazos Trace, LLC who mav be served through registered agent Paul J. Leventis at 1722
Broadmoor Dr.. Suite 212, Brvan, Tx 77802 Defendant
Greeting:
You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o’clock A.M. of the Monday next afterthe expiration of twenty days after the date of
service of this citation before the Honorable 272nd District Court of Brazos County', Texas at the
Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day ofMarch A.D. 2013.
in the case, numbered 13-000672-CV-272on the docket of said court, and styled,
David Cottrell Plaintiff
VS.
Burton Creek Development LTD., Burton Creek Management. LLC and Brazos Trace. LLC
Defendant
The nature of Plaintiff s demand is full)' shown by a true and correct copy ofPlaintiff s Original
Petition accompanying this citation and made a part thereof.
The officer executing the writ shall promptly' serve the same according to requirements of the law,
and the mandates thereof, and make due return as the law directs.
Issued and given under my hand and sealed of said Court at office, this the 15th day ofMarch. 2013
Marc Hamlin
flerk of Brazos County, Texas
Deputy'
OFFICER’S RETURN
_ _
Came to hand on the
Executed at
day of
within the County of
_ . 20
_ . at
at
o'clock .M.
o'clock
.M.
on the day of . 20 . bv delivering to the within
named _
each.
in person, a true copy of this citation together with the accompany'ing copy of the petition, having first
attached such
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery,
Total fee for serving this citation
Sheriff Account
To certify which witness my hand officially.
No.
For Clerk’s Use
T axed
Returned Record
Sheriff of
By _
_County, Texas
Deputy
22E
»ÿM
f
1L1T5
CLERK OF THE COURT ATTORNEY FOR ’LAINTIFF
Marc Hamlin BAILEY, ROBERT MAU 1 2013
300 East 26th Street, Suite 2 1 6 3306 SUL ROSS
Bryan, TX 77803 HOUSTON, TX 770! DIST CLERK
UWMHanutif
JrTKrnUH
THE STATE OF TEXAS CITATION
NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney. If you or your attomey'do not file a
written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
you were served this citation and petition, a default judgment may be taken against you.”
TO Brazos Trace, LLC who may be serv ed through registered agent Paul J. Leventis at 1722
Broadmoor Dr, Suite 212, Bryan, Tx 77802 Defendant
Greeting:
You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o’clock A.M. of the Monday next afterthe expiration of twenty' days after the date of
service of this citation before the' Honorable 272nd District Court of Brazos County, Texas at the
Courthouse of said County' in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013.
in the case, numbered 13-000672-CV-272on the docket of said court, and styled,
j *
*
t * '
David Cottrell Plaintiff
VS. ..-
$ . *
0 , .
Burton Creek Development, LTM Burton Creek Management, LLC and Brazos Trace, LLC
Defendant ¥ '
*
.
** * *4 X s
* %
The nature of Plaintiff S demand fe'flxlly shown by a true add correct copy of Plaintiff s Original
Petition accompanying this §itAiomamfihÿde a part thereof, y , " 1; •
•
*
The officer executing;the wi|t%sh|i promptly seitye the saittÿ according to requirements of the law,
and the mandates thereof, |t|d make retiim as* the Jlw directs* \ * * * ;
Issued and given und|r sealed pBaicfCourt at office, this the 15thday of March, 2013
\ . , * i‘ • :
Mart Hamlin
feof BWps Countxÿexas • . *
Deputy
*
* k \*
W IUK*
J
Executed
Came to
at/
d on .
)QD/r
. W&MWUA A
, within the Uoutitvÿ5f Jjf Uj
at
— at 3*30 o’clock
cm the davÿof
named
each,
'cWc/l '
in person, a true copy of this citation together with the accompanying copy of the petition, having first
attached such
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery.
Total fee for serving this citation /Q
Sheriff Account
To certify which witness my hand officially.
No.
For Clerk’s Use
Christopher C. ICirk, Sheriff
Taxed Sheriff of County, Texas
Returned Record By Deputy
ffcmmy Pdkxk
gggCTgjggggggg =JI
foe, FI LEST
CLERK OF THE COURT ATTORNEY FOR PLA KlfT$P 71 o'nlnrk
Marc Hamlin BAILEY, ROBERT
300 East 26th Street, Suite 2 1 6 3306 SUL ROSS R Z 1 2013
Bryan, TX 77803 HOUSTON, TX 77098
THE STATE OF TEXAS CITATION jBaayft
NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney. If you or your attorney dbnÿt file a
written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
you were served this citation and petition, a default judgment may be taken against you.”
TO Burton Creek Management, LLC who may be served through registered agent Paul J. Leventis
at 1722 Broadmoor Dr., Suite 212, Brvan, Tx 77802 Defendant.
Greeting:
You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o’clock A.M. of the Monday next after the expiration of twenty days after the date of
service of this citation before the Honorable 272nd District Court of Brazos County, Texas at the
Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013.
in the case, numbered I3-000672-CV-272on the docket of said court, and styled,
11 ' ' '„ ' “ ' *
:t*
-
David Cottrell Plaintiff
vs.
; *
r>»-
• < » i * .
.
Burton Creek Development, LTD., Burton Creek Management, LLC and Brazos Trace. LLC
Defendant "
The nature of Plaintifflsdemand iS fully shown by a true and correct copy ofPlaintifPs Original
Petition accompanying this;catatiop*andnaade a part thereof. i * > ■
The officer executing She wrk shill promptly serve the same accordihg to requirements of the law,
and the mandates thereof, arid make retunratfitbe law' directs. • > ; ** ■
I Issued and given under .nay hand and sealed of laid Court at office, this the 15thday of March, 2013
f * ¥ ' * .ji'1
>
', * ♦ *
4
■*.•«»’
■
i
* ,, , 4
;
\ ■? * , .. Mate Hamlin , ■* • :
' '
>
i of Brazos County, Texas
1 1 1/
Deputy
C o’clock IÿM.
Executed at o’clock
on the / rl day
in'person, a true copy of this citation together with the accompanying copy of the petition, having first
attached such
copy of such petition to such copy of citation and endcjjsed on such copy of citation the date of delivery.
Total fee for serving this citation / (j
Sheriff Account
To certify which witness my hand officially.
I No.
For Clerk’s Use
Christopher C. Kirk, Sheriff
Brazos
Taxed
Returned Record
Sheriff of
By
County, Texas
_Deputy
Tammv Poiock
V-1 ,, f
T5S
I
ix ,61 L EU? M
At t o'clock.
CLERK OF THE COURT ATTORNEY FOR P A7NTTFF
Marc Hamlin BAILEY, ROBERT 2013
300 East 26th Street, Suite 216 3306 SUL ROSS
Bryan, TX 77803 HOUSTON, TX 77098 NrDIST CLERK
ity, Htxat .
Essiflsd
THE STATE OF TEXAS CITATION
NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney. If you or your attorney fca/ot file a
written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
you were served this citation and petition, a default judgment may be taken against you.”
TO Burton Creek Development, Ltd, who may be served through registered agent Paul J. Leventis at
1722 Broadmoor Dr., Suite 212, Bryan. Tx 77802 Defen dant,
Greeting:
You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o'clock A.M. of the Monday next after the expiration of twenty days after the date of
service of this citation before the Honorable 272nd District Court of Brazos County, Texas at the
Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013,
in the case, numbered 13’000672-CV-272on the docket of said court, and styled,
, « 1S
David Cottrell Plaintiff i. * * *
VS. # *
jMi'
Burton Creek Development LTD., Button Creek Management, LLC and Brazos Trace. LLC
Defendant , ? . \. 1 : - *
> > - L • ■
■
*
£
*
}
*
-K
.
•
.
.
9
♦ ;
ij .
<
'
u „ tf
.
*
* ?
.v
i
*
* „ s. t *
v <
'
:
1 *
«
The nature of Plaintiffs demand is fillly shown by a tmeandpbrrect copy of Plaintiff s Original
Petition accompanying this citation and made a pan thereof ; * * > ;t ;
■
The officer executing the w$lshafl prbkiptlysdNe the same according to requirements of the law,
and the mandates thereof, and make due return as the law directs. »,1 ;;1
Issued and given under my, hand and sealed Court H office* this fee 15th day of March, 2013
t i *..«**'
*
i <
t
-
Marc
f*
<
Hamlin
"l •* * .
- ?
* 4
'
■
Couirty
Deputy'
** 4
OFFICER’S
’cfciVsOsf-
o'clock
M
w. Tt ftnro _each,
Paul
m person, a true copy of this citation together with the accompanying copy of the petition, having first
attached such
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery'.
Total fee for serving this citation /Q
Sheriff Account
To certify which witness my hand officially.
No.
For Clerk’s Use
Christopher C. Kirk. Sheriff
Taxed_ Sheriff of County, Texas
Returned Record By Deputy'
Tfcmmv Poiock
NO. 13-000672-CV-272
DAVID COTTRELL §
Plaintiff, §
§
V. § 272D JUDICIAL DISTRICT
§
BURTON CREEK DEVELOPMENT, §
LTD., BURTON CREEK §
MANAGEMENT, LLC AND BRAZOS §
TRACE, LLC §
Defendants. § OF BRAZOS COUNTY, TEXAS
DEFENDANTS' ORIGINAL ANSWER AND COUNTERCLAIM
NOW COME Defendants, Burton Creek Development, Ltd., Burton Creek Management,
LLC and Brazos Trace, LLC, named Defendants in the above-entitled and numbered cause, and
file this Original Answer and Counterclaim, and show the Court:
PARTY IDENTIFICATION INFORMATION
Burton Creek Development, Ltd. has not been issued a driver's license. Burton Creek
Development, Ltd. has not been issued a Social Security number.
Burton Creek Management, LLC has not been issued a driver's license. Burton Creek
Management, LLC has not been issued a Social Security number.
Brazos Trace, LLC has not been issued a driver's license. Brazos Trace, LLC has not
been issued a Social Security number.
DISCOVERY CONTROL PLAN
1. Defendants/Counterclaimants, by their Counterclaim, seek other than monetary
relief, and therefore this cause shall be governed by a Discovery Control Plan as described in
Rule 190.3, Rules of Civil Procedure (Level Two).
GENERAL DENIAL
2. Defendants deny each and every, all and singular, the allegations of Plaintiffs
Petition, and demand strict proof of each of them as required by the laws of Texas.
VERIFIED DENIALS
3. Conditions precedent to the filing of suit have not been satisfied as alleged.
Specifically, Plaintiff has not made proper demand on Defendants.
4. The alleged contract which is the subject of the suit is without consideration.
5. Consideration for the alleged contract which is the subject of the suit has wholly
or partially failed.
6. Notice and proof of the loss or claim were not given as alleged.
AFFIRMATIVE DEFENSES
7. Plaintiffs recovery is barred because of failure of consideration.
8. Plaintiffs contract does not satisfy the requirements of Tex. Occ. Code §
1101.806, which is the applicable statute of frauds.
DEFENDANTS' COUNTERCLAIMS
9. Defendants/Counterclaimants seek only monetary relief of $100,000.00 or less,
including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney
fees, within the jurisdictional limits of the Court, and demand judgment for all the other relief to
which they deem themselves entitled.
FACTS
10. Burton Creek Development, Ltd. is or was the owner of several parcels of real
property in Bryan, in the general vicinity of East William Joel Bryan Parkway, East Villa Maria
Road, Nash Street, and Broadmoor Drive.
11. During the period prior to December 14, 201 1, Burton Creek Development, Ltd.
had been in discussions regarding the possible sale of one parcel to a developer for the purpose
of building apartments. During the course of the discussions regarding the apartment land, it was
contemplated that Plaintiff David Cottrell was to bring a prospective buyer of the apartment land
to Burton Creek Development, Ltd.
12. With respect to this prospective transaction, Burton Creek Development, Ltd. sent
an email to David Cottrell which contemplated payment of a commission on the apartment land.
It is plain from the language of the email that the subject matter was the apartment land, as the
email notes that Cottrell’s offer would have to exceed a previous offer by a specified amount in
order to cover the commission. Furthermore, although the email contemplates payment of a
commission, it does not adequately describe any parcel of land, and thus does not fulfill the
requirements of the applicable statute of frauds. Therefore, Cottrell is not entitled to a
commission.
13. The land which was actually sold was a nearby parcel of land, which was sold to
Del Lago Ventures, Inc. David Cottrell was never hired to market the property which was sold,
and never did any work in connection with the sale of that property. Thus Cottrell is not entitled
to a commission.
14. There exists a genuine controversy between the parties herein that would be
terminated by the granting of declaratory judgment. Defendants therefore request that declaratory
judgment be entered as follows:
a. That the alleged contract upon which Plaintiffs lawsuit is based is not a
contract;
b. That the alleged contract upon which Plaintiffs lawsuit is based does not
satisfy the applicable Statute of Frauds;
c. That the alleged contract upon which Plaintiffs lawsuit is based does not,
either by itself or by reference to another writing then in existence, identify
with reasonable certainty the land to be conveyed.
15. Pursuant to Section 37.009, Civil Practice and Remedies Code, request is made
for all costs and reasonable and necessary attorney fees incurred by Defendants herein, including
all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme
Court of Texas, as the Court deems equitable and just.
PRAYER
Defendants pray the Court, after notice and hearing or trial, enters judgment in favor of
Defendants, awards Defendants the costs of court, attorney's fees, and such other and further
relief as Defendants may be entitled to in law or in equity.
Respectfully submitted,
Peterson Law Gr
Christopher Wf Peterson
Texas Bar No. 00797239
E. V. "Rusty" Adams III
Texas Bar No. 24045372
3608 E. 29th Street
Ste. 112
Bryan, Texas 77802
Tel. (979) 703-7014
Fax. (979) 703-7031
Attorney for Defendants
Burton Creek Development, Ltd., Burton Creek
Management, LLC and Brazos Trace, LLC
NO. 13-000672-CV-272
DAVID COTTRELL § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 272D JUDICIAL DISTRICT
§
BURTON CREEK DEVELOPMENT, §
LTD., BURTON CREEK §
MANAGEMENT, LLC AND BRAZOS §
TRACE, LLC §
Defendants. § OF BRAZOS COUNTY, TEXAS
VERIFICATION
BEFORE ME, the undersigned authority, personally appeared Paul Leventis, who being
duly sworn, deposed as follows:
"My name is Paul Leventis. I am a managing member of Burton Creek Management,
LLC, the general partner for Burton Creek Development, Ltd. and am a managing member of
Brazos Trace, LLC. I am at least 18 years of age and of sound mind. I am personally acquainted
with the facts alleged in Defendants' Verified Denials. I hereby swear that the statements in
support of Defendants' Verified Denials are t
Paul Leventis, a Member of Burton
Creek Management, LLC, the General Partner of
Burton Creek Development, Ltd. and as Managing
Member of Brazos Trace, LLC
SUBSCRIBED AND SWORN TO BEFORE ME on
Paul Leventis in the capacities shown above.
Qasu/ /£ £0/3 , by
4837-7275-5731, v. 2
CERTIFICATE OF SERVICE
I certify that on April 10, 2013 a true and correct copy of Defendants' Original Answer
and Counterclaim was served by facsimile transmission otyRetert'G. Bailey at 713.630.0017.
DAVID COTTRELL § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 272D JUDICIAL DISTRICT
§
BURTON CREEK DEVELOPMENT, §
LTD., BURTON CREEK §
MANAGEMENT, LLC AND BRAZOS §
TRACE, LLC §
Defendants. § OF BRAZOS COUNTY, TEXAS
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Defendants, Burton Creek Development, Ltd., Burton Creek Management,
LLC and Brazos Trace, LLC, Movants herein, and request the Court to enter Summary Judgment
in favor of Movants on the counterclaim and affirmative defenses set forth herein and against
Plaintiff David Cottrell (hereinafter Non-Movant), and in support thereof, show the Court the
following:
I.
There are no genuine issues of material fact in this case; therefore, the Court may decide
this case on the summary' judgment evidence attached to this motion, which evidence is
incorporated herein by reference.
II.
A. Movants filed a counterclaim against Non-Movant seeking a declaratory
judgment declaring that:
a. The alleged contract upon which Plaintiffs lawsuit is based is not a contract;
b. The alleged contract upon which Plaintiffs lawsuit is based does not satisfy
the Statute of Frauds; and
c. The alleged contract upon which Plaintiffs lawsuit is based does not, either
by itself or by reference to another writing then in existence, identify with
reasonable certainty the land to be conveyed.
B. There is no genuine issue of material fact as to the above.
C. Movants include affidavits, discovery, documentary evidence and Non-Movant's
pleadings as summary judgment evidence, attached hereto as Exhibits A-E
(inclusive) and incorporated by reference for all purposes as if recited
verbatim herein.
III.
A. Movants raised the affirmative defense of statute of frauds to Non-Movant's
claim. Movants are required to prove that the alleged contract upon which Plaintiffs lawsuit is
based does not, either by itself or by reference to another writing then in existence, identify with
reasonable certainty the land to be conveyed.
B. There is no genuine issue of material fact as to the defense of statute of frauds and
include affidavits, discovery, documentary evidence and Non-Movant’s pleadings as summary
judgment evidence attached hereto, filed with this motion and incorporated by reference for all
purposes as if recited verbatim herein.
IV.
A. If summary judgment for Movants is not rendered on the entire cause or for all
relief requested, and if a trial is necessary on some of the issues in this cause, Movants request
the Court, after examining the pleadings and summary judgment evidence before it and after
interrogating counsel to ascertain those material facts that are in good faith actually controverted,
to make an order specifying those facts that appear to be without substantial controversy and
directing such further proceedings in the action that are just.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Movants pray that:
The Court set this matter for hearing, with notice to Non-Movant, and that upon
completion of said hearing the Court grants Movants' Motion for Summary Judgment, and that
Movants have the following:
1. Judgment against Plaintiff David Cottrell, for declaratory judgment, or
alternatively, should the Court find some facts to be controverted. Movants be granted a partial
summary judgment specifying those facts that appear to be without substantial controversy;
2. Judgment against Plaintiff David Cottrell, on the affirmative defense of statute of
frauds or alternatively, should the Court find some facts to be controverted, Movants be granted
a partial summary judgment specifying those facts that appear to be without substantial
controversy;
4. Pre-judgment and post-judgment interest as provided by law;
5. Judgment for attorney's fees as prayed for and proved by affidavit attached hereto;
6. Costs of suit; and
7. Movants be granted such other and further relief, special or general, at law or in
equity, as may be shown that Movants are justly entitled to receive.
Respectfully submitted,
Peterson Law Group
1733 Briarcrest Drive, Suite 100
Bryan, Texas 77802
Tel. (979) 703-7014
Fax. (979) 703-7031
Email: rusty@brazoslawyers.com
Attorney for Defendants
Burton Creek Development, Ltd., Burton Creek
Management, LLC and Brazos Trace, LLC
CERTIFICATE OF SERVICE
I certify that on January 24, 2014 a true and correct copy of Defendants' Motion for
Summary' Judgment was served by facsimile transmission on Robert G. Bailey at 713.630.0017.
E. V. "Rusty1' Adams III
NO. 13-00Q672-CV-272
DAVID COTTRELL § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 272D JUDICIAL DISTRICT
§
BURTON CREEK DEVELOPMENT, §
LTD., BURTON CREEK §
MANAGEMENT, LLC AND BRAZOS §
TRACE, LLC §
Defendants. § OF BRAZOS COUNTY, TEXAS
APPENDIX TO
DEFENDANTS1 MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
All summary judgment evidence in this appendix is incorporated by reference into
Defendants’ Motion for Summary Judgment.
I. Plaintiffs Pleadings
Exhibit A
II. Affidavits
Affidavit of E. V. “Rusty” Adams III attesting to the authenticity
of the documents attached hereto.
Exhibit B
Affidavit of E. V. "Rusty" Adams III attesting to the amount and
reasonableness of attorney fees, with attached documentation.
Exhibit C
l£] 002/00 f
01/16/2014 12.43 FAX
No. 13-000672-CV-272
DAVID COTTRELL § IN THE DISTRICT COURT OF
§
vs. § BRAZOS COUNTY, TEXAS
§
BURTON CREEK DEVELOPMENT, LTD, §
BURTON CREEK MANAGEMENT, LLC §
AND BRAZOS TRACE, LLC § 272ND JUDICIAL DISTRICT
PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, David Cottrell, Plaintiff complaining of Burton Creek Development, Ltd,
Burton Creek Management, LLC and Brazos Trace, LLC, Defendants, and as grounds therefor would
show the Court as follows;
I.
1.1 Discovery is intended to be conducted under Level 1 of Rule 190, Texas Rules ofCivil
Procedure.
IL
2.1 David Cottrell (“Cottrell”), Plaintiff, is an individual residing in Harris County, Texas,
22 Burton Creek Development, Ltd. (“Development”), Burton Creek Management, LLC
(“Management”) and Brazos Trace, LLC (“Brazos Trace”), Defendants, have all appeared and
answered herein.
3.1 Venue is proper in Brazos County, Texas, because Brazos County is the county in which
all or a substantial part of the events OT omissions giving rise to the claims asserted herein occurred.
3.2 Venue is proper in Brazos County, Texas as to each Defendant, because Brazos County
is the county in which each Defendant has its principal office in this state and each Defendant is not
a natural person.
3.3 Venue is proper in Brazos County, Texas, as to all of the Defendants, because (a) all of
the claims asserted herein arise out of the same transaction, occurrence, or series of transactions or
occurrences and (b) Cottrell has established proper venue against one or more of the Defendants.
EXHIBIT.
lÿ] QOd/UO /
01/16/2014 12:48 FfcX
IV.
4.1 Cottrell is a real estate broker licensed by and in good standing with the Texas Real
Estate CommLssiotL
4.2 Development entered into a written contract (the “Contract”) in writing with Cornell, by
which Cottrell was engaged to assist in selling a tract of land (the ‘‘Property”) owned by
Development and located in Bryan, Texas. A true and correct copy of the Contract is attached hereto
as Exhibit A. A detailed legal description and partial plat of a survey of the Property are set forth
in Exhibit B, attached hereto. Under the Contract, it was agreed that Cottrell would be paid a
commission of 6% if he brokered a sale of the Property.
4.3 Cottrell was contacted by representatives of RaceTrac Petroleum, Inc,, who expressed
interest in purchasing the Property. Cottrell introduced them to Defendants, Development sold the
Property to Gingercrest, Inc., a RaceTrac affiliate.
4.4 Cottrell has fully performed his obligations under the Contract by bringing a buyer,
RaceTrac or an affiliate thereof, of the Property to Development Development knowingly accepted
Cottrell’s services by selling the Property to RaceTrac or its affiliate. It received the benefits of the
sale that had been arranged by Cottrell, namely, die sales price.
4.5 Cottrell has made demand on Defendants for payment of his commission of $51,015.15,
but they have foiled and refused to do so.
V.
5.1 Brazos Trace or its member, Paul Leventis, made the Contract with Cottrell as agent for
Development. In doing so they acted within the course and scope of the authority granted to them
by Development, whether actual or apparent. Development has breached the Contract made on its
behalf by foiling to pay Cottrell the 6% commission that he earned for enabling Development to sell
the Property to RaceTrac or an affiliate. As a result of Development's breach of the Contract,
Cottrell has been damaged the sum of $51,015.15, for which Cottrell now sues Development
52 Management is the general partner of Development and, as such, is jointly and severally
2
igioua/cof
(M/lb/iitm Ik'.Atf l-ÿX
liable with it for Development’s breach of the Contract.
VI.
6.1 In die alternative, if Brazos Trace exceeded its authority, actual or apparent, by entering
into the Contract on behalf of Development, then Brazos Trace is liable to Cottrell for its breach of
the Contract, for which Cottrell now sues Brazos Trace.
vn,
7.1 Cottrell is entitled to recover a reasonable attorney’s fee pursuant to Ch. 38, Texas Civil
Practice and Remedies Code.
vm
8.1 All conditions precedent to the right of Cottrell to recover the relief requested herein
have occurred or have been satisfied.
WHEREFORE* PREMISES CONSIDERED, Cottrell prays that he have and recover
judgment against Development and Management, jointly and severally, for actual damages of
$51,015.15, attorney’s fees, pre- and post-judgment interest and costs of suit In the alternative,
Cottrell prays for judgment against Brazos Trace for actual damages of $51,015.15, attorney’s fees,
pre- and post-judgment interest and costs of suit Cottrell prays for such other and further relief to
which he may be justly entitled.
Respectfully submitted*
ROBERT G. BAILEY, P.C.
By: /S/ ROBERT G. BAILEY
``
Robert G. Bailey
State Bar No. 01536200
3306 Sul Ross
Houston, Texas 77098
Land: 832-485-1338
Cell: 713-819-5534
Fax: 713-630-0017
Email: ibailey@robertbaileypc,com
ATTORNEY FOR PLAINTIFF
3
i.
|g] OOVOO (
01/16/2014 12:49 FAX
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on the following
counsel of record via fax, hand delivery or certified mail on January 16, 2014:
Christopher W. Peterson
E.V, “Rusty” Adams, III
Peterson Law Group
3608 East 29* St., Suite 112
Bryan, Texas 77802
Phone: 979-703-7014
Fax; 979-703-7031
/S/ ROBERTO. BAILEY
Robert G. Bailey
4
01/IBrZVM . na MX ifl ooa/yu i
Pad L—rOs gmiptnuiium caw]
Sant WMhHday, DMMbar14,2011 tttSSPM
T*! f*ul LewMaÿ Davtd Ocdrel
c* JMnyÿmnyUodr com; InwtaimonlnB.oomÿ W Kodan*
Rfc Land tor Safe Naan and WJBrywi
Divid,
At a clarification, the 6% commission will cover your commission of S3 end a S3 commission to the buyer agent that It
Winging the group out of Dallas. Please confirm that this Is correct so there Is no misunderstanding.
Hanks,
Plul
KWHS Paul Levends fnÿjtKDauiObmrtÿraÿÿniT
sent: Wednesday, December 14, 2011 7:22 AM
Tbs Uavld Cottreir
ce '7 S.W.3d 663, 672 (Tex. App.--Houston [14th Dist.] 1999,
no pet.). This principal was discussed in detail in John Chezik Buick Co. v. Friendly Chevrolet Co.,
749 S.W.2d 591, 594 (Tex.App.-Dallas 1988, writ denied) (emphasis added):
The Texas Declaratory Judgment Act provides that the petitioner may recover attorney fees.
TEX.C1V.PRAC. & REM.CODE ANN. § 37.009 (Vernon 1986). However, the Declaratory
Judgment Act is not available to settle disputes already pending before a court. Johnson
v. Hewitt, 539 S.W.2d 239, 240-241 (Tex.Civ.App.— Houston [1st Dist.] 1976, no writ);
Joseph v. City of Ranger, 188S.W.2d 1013, 1014 (Tex.Civ.App.— Eastland 1945, writ refd
w.o.m.). In this case, Buick brought a counterclaim in which it prayed for a declaratory
judgment as to any agency relationships, thus determining the rights of the parties. This
controversy was already before the trial court under Chevrolet's action for relief under the
sales contract. Consequently, Buick was not entitled to relief under the Declaratory Judgment
Act in the form of a counterclaim. The identical conclusion was heretofore reached by this
Court in Narisi v. Legend Diversified Investments, 715 S.W.2d 49, 51-52
(Tex.App.— Dallas 1986, writ refd n.r.e.). In Narisi we recognized that a counterclaim
under the Declaratory Judgment Act, presenting no new controversies but brought
solely to pave an avenue to attorney fees, was not proper.
The dispute that is presented by Cottrell’s petition is whether or not he is entitled to recovery
for breach of contract. Whether or not what Cottrell calls a contract is really a contract is not a new
dispute, for Defendants have denied the existence of a contract by virtue of their general denial.
Whether or not the contract satisfies the statute of frauds also is not a new dispute, for that is put at
issue by Defendants’ affirmative defense that it does not. Finally, whether or not the contract
adequately identifies the land is nothing more than an element of Defendants’ statute of frauds
defense and does not present a new dispute for that reason. In sum, Defendants’ counterclaim does
2
not seek to resolve any new controversies, it was “brought solely to pave an avenue to attorney’s
fees.” It is improper and Defendants’ Motion for Summary Judgment on their counterclaim for a
declaratory judgment and corresponding attorney’s fees should be denied for that reason.
IV.
COTTRELL’S CLAIM IS NOT BARRED BY THE STATUTE OF FRAUDS
The Defendants also seek summary judgment on their affirmative defense of the statute of
frauds. The Defendants are not entitled to summary judgment on that defense for the reasons
discussed in more detail in Cottrell’s Cross Motion for Summary Judgment, below, which reasons
and evidence are incorporated in this paragraph by reference.
COTTRELL’S CROSS MOTION FOR SUMMARY JUDGMENT
V.
COTTRELL’S SUMMARY JUDGMENT EV IDENCE
Cottrell offers the following as his summary judgment evidence:
Exhibit A: Excerpts from the deposition of Paul Leventis and certain of the exhibits thereto
(Leventis is a Member in Burton Creek Management, LLC, the sole general partner of Burton
Creek Development, Ltd.);
Exhibit B: Affidavit of David Cottrell;
Exhibit C: Affidavit of Robert G. Bailey; and
Exhibits D through O: Documentary' evidence.
VI.
THE LAW
In order to be entitled to his commission, Cottrell must prove the following:
1. He held a Texas license as a real estate broker or salesperson at the time the act was
commenced (§1 101.806(b), Tex. Occ. Code)', and
2. The promise or agreement on which the action is based, or a memorandum, is in writing
and signed by the party against whom the action is brought or by a person authorized by that
party to sign the document. (§ 1 101 .806(c), Tex. Occ. Code).
In order to prove compliance with § 1 101 .806(c), Cottrell must prove that the agreement or
memorandum on which this suit is based is in writing and signed by the person to be charged with
the commission and that the agreement or memorandum promises that a definite commission will
3
be paid, states the name of the broker to whom the commission is to be paid and either itself or by
reference to some other existing writing, identifies with reasonable certainty the land to be conveyed.
Litton Loan Servicing, LP v. Manning, 366 S.W.3d 837 (Tex.App.-Dallas 2012, pet. denied).
It is not necessary for Cottrell to prove that the agreement or memorandum identifies the land
to be conveyed, if he proves (1) he fully perfonned, (2) the Defendants knowingly accepted his
services by completing the transaction arranged by him and received benefits from that transaction,
(3) the Defendants acknowledged in writing their obligation for a commission, and (4) documentary
evidence establishes the amount of the commission due. Carmack v. Beltway Dev. Co., 701 S.W.
2d 37, 41- 42 ( Tex.App. — Dallas 1985, no writ). This case was cited with approval by the Texas
Supreme Court in Boyert v. Taubert, 834 S.W.2d 60 (Tex. 1992) and the Fort Worth Court of
Appeals in Collins v. Beste, 840 S.W'.2d 788 (Tex.App.-Fort Worth 1992, writ denied).
Cottrell's summaryjudgment evidence shows that all of these requirements were met and that
he is entitled to judgment as a matter of law.
VII.
THE FACTS
1. Cottrell is licensed by the Texas Real Estate Commission as a broker and has been
continuously from 1973 to the present. (Cottrell Affidavit).
2. Burton Creek Development, Ltd. is a Texas limited partnership. (Exhibit D).
3. Burton Creek Management, LLC is a Texas limited liability company. (Exhibit E).
4. Burton Creek Management, LLC is the sole general partner of Burton Creek
Development, Ltd. (Exhibit D and Leventis Deposition, pg 11).
5. Leventis has been a member of Burton Creek Management, LLC since its inception.
(Exhibit D and Leventis Deposition, pg 11).
6. Leventis also was the Chief Operating Officer of Burton Creek Management, LLC in
201 1 and 2012. (Exhibit D and Leventis Deposition, pg 11).
7. Burton Creek Development, Ltd. owned a subdivision (the “Subdivision”) in Brazos
County, Texas, known as Briar Meadows Creek Subdivision, Phase III. (Cottrell Affidavit).
8. The Subdivision consisted of Lots 1,2, 3 and 4. (Leventis Deposition, pgs 14 and 23-26
and Exhibits 23 and 31 thereto).
9. Lot 1 of Briar Meadows Creek Subdivision was bounded on the north by East WJ Bryan
4
Parkway, on the east and south by Nash Street and partially on the west by Villa Maria Road.
(Exhibit 23 to Leventis Deposition).
10. Of Lots 1, 2, 3 and 4 of Briar Meadows Creek Subdivision, only Lot 1 was bounded by
Villa Maria Road. (Exhibit 23 to Leventis Deposition).
1 L Cottrell had worked with Leventis on the Tony Roma’s project in Bryan and was paid
a real estate commission by Leventis’s entity for his role as a real estate broker in that
transaction. (Leventis Deposition, pg 13).
12. In 2010, after the Tony Roma’s transaction had been concluded, Leventis gave Cottrell
a document entitled “General Letter of Understanding,” which discussed a possible joint
venture between Burton Creek Development, Ltd. and Cottrell to develop a retail strip center
in the Subdivision at the northeast comer of WJ Bryan and Nash Street on Lot 1, with
Cottrell to furnish his development expertise in exchange for an ownership interest and a
broker/realtor commission and other fees. (Leventis Deposition, pg 44 and Exhibit 54
thereto).
13. There was a sign on Lot l which advertised the property. (Leventis Deposition, pgs 35-
36; Cottrell Affidavit).
14. The sign had Cottrell’s phone number on it. (Leventis Deposition, pgs 35-36; Cottrell
Affidavit).
15. Leventis and Cottrell agreed that Leventis (Burton Creek Development, Ltd.) would pay
for the sign. (Leventis Deposition, pgs 35-36).
16. In his dealings with Cottrell regarding Lot 1, Leventis represented Burton Creek
Development, Ltd. (Leventis Deposition, pg 12; Cottrell Affidavit).
1 7. Leventis and Cottrell also talked about how all of Lot 1 might be developed, with retail,
multi-family and offices all discussed as possibilities, (Leventis Deposition, pgs 19-22;
Cottrell Affidavit).
18. The one constant was that the northeast comer of Lot 1 would be a retail tract (the
“Retail Tract”). (Leventis Deposition, pgs 19-22 and Exhibits 23 and 29 thereto; Cottrell
Affidavit).
19. Cottrell began looking for purchasers of all or part of Lot 1, including the Retail Tract.
(Cottrell Affidavit).
20. Cottrell began working with representatives of CVS Pharmacy late in 2010 regarding
a purchase of the Retail Tract and introduced them to Leventis. (Cottrell Affidavit).
21 . The discussions between CVS and Burton Creek Development, Ltd. progressed to the
point that CVS even submitted a proposed site plan for what it wanted to do with the Retail
Tract. (Exhibit F and Cottrell Affidavit).
22. CVS and Burton Creek Development, Ltd. never reached an agreement regarding the
Retail Tract. (Cottrell Affidavit).
23. On December 14, 2011, Leventis sent Cottrell an email which said, “Per our
5
conversation yesterday, Burton Creek Development will pay you a %6 commission for any
buyer that you bring to the table who closes on our property located at WJ Bryan, Villa Maria
and Nash.” (Exhibit G and Leventis Deposition, pg. 26 and Exhibit 61 thereto). It is this
email which Cottrell contends constitutes the agreement which he seeks to enforce in this
lawsuit.
24. In or about March 20 1 2, Cottrell was contacted by Kate Neyhart of RaceTrac Petroleum,
who said RaceTrac might be interested in developing the Retail Tract as a gasoline
station/convenience store. (Cottrell Affidavit).
25. On March 14, 2012, Leventis sent Cottrell a drawing on how the Retail Tract might be
developed to accommodate RaceTrac. (Leventis Deposition, pgs 29-32 and Exhibit 32
thereto).
26. On March 14, 2012, Cottrell sent Ms. Neyhart a copy of the drawing done for the
convenience store and advised her of the approximate size and dimensions of the Retail Tract
and its sales price. (Exhibit H and Cottrell Affidavit).
27. Cottrell introduced Ms. Neyhart to Leventis. (Leventis Deposition, pg 32; Cottrell
Affidavit).
28. Cottrell brought RaceTrac in as someone interested in the Retail Tract. (Leventis
Deposition, pg. 34).
29. On April 12, 2012, Leventis sent Cottrell an email which said, “Here is the site plan that
shows the location behind the comer w’here racetrack (sic) is looking. I will see you and the
Coffee Shop guy at 10:00 a.m. this morning.” (Leventis Deposition, pg. 36 and Exhibit 36
thereto).
30. The “Coffee Shop guy” was another person who Cottrell had located who was interested
in purchasing part of Lot 1 . (Cottrell Affidavit).
31. Lesleigh Batchelor was Ms. Neyhart’s manager and replaced her as RaceTrac’s
representative in the discussions regarding the Retail Tract. (Cottrell Affidavit).
32. Cottrell contacted Ms. Batchelor and arranged a site visit with her. He and she then met
with Leventis at his office, a meeting which he also had arranged. That was her first meeting
with Leventis. (Cottrell Affidavit).
33. Cottrell w-as copied on almost all emails exchanged between Leventis and Ms. Batchelor,
including drafts of the contract of purchase and sale. (Leventis Deposition, pg 39-4 1 and
Exhibits 40, 45 and 51 thereto; Cottrell Affidavit).
34. In one of those emails which was copied to Cottrell, Ms. Batchelor advised Leventis,
“Our VP gave a thumbs up to the site, so I am taking an offer in to our RE committee on
Monday for signature. If it gets signed... I’ll be able to get up to Bryan before the end of the
week.” (Exhibit 1).
35. Four days later, in another email copied to Cottrell, Ms. Batchelor advised Leventis that
she had a signed contract and wanted to meet in Bryan. (Exhibit J).
36. Cottrell attended that meeting. (Exhibit K and Cottrell Affidavit).
37. Ms. Batchelor then sent Cottrell a copy of the proposed contract in Word format.
6
(Exhibit K).
38. Leventis has admitted that if there was a commission agreement between Burton Creek
Development, Ltd. and Cottrell and if Cottrell brought RaceTrac in as a purchaser, Cottrell
would be entitled to a commission. (Leventis Deposition, pgs 34-35).
39. Burton Creek Development, Ltd. sold the Retail Tract for $850,252.50 on January 29,
2013. (Leventis Deposition, pg 44 and Exhibit 60 thereto).
40. Burton Creek Development, Ltd. sold the Retail Tract to Gingercrest, Inc.
(“Gingercrest”). (Exhibit L).
41. Gingercrest is a Georgia corporation authorized to do business in Texas. (Exhibit M).
42. Gingercrest is located at 3225 Cumberland Blvd. SE, Suite 100, Atlanta, GA. (Exhibit
M).
43. Gingercrest’s directors are Carl Bolch, Jr., Max Lenker and Susan Bass Bolch. (Exhibit
M).
44. Gingercrest’s officers are Carl Bolch, Jr., Max Lenker, Robert J. Dumbacher, Susan Bass
Bolch and Harriet Landau. (Exhibit M).
45. RaceTrac is a Georgia corporation. (Exhibit N).
46. RaceTrac is located at 3225 Cumberland Blvd., Suite 100, Atlanta, GA, the same
address as Gingercrest. (Exhibit N).
47. RaceTrac’s directors are Carl Bolch, Jr., Max Lenker and Susan Bass Bolch, who also
are directors of Gingercrest. (Exhibit N).
48. RaceTrac’s officers are Allison Bolch Moran, Robert J. Dumbacher and Susan Bass
Bolch, who also are officers of Gingercrest. (Exhibit N).
49. Cottrell made demand for payment of his commission, but Defendants have failed and
refused to do so. (Exhibit O and Cottrell Affidavit).
50. The unpaid commission is $50,015.15.
VIII.
THE EV IDENCE ESTABLISHES COTTRELL’S RIGHT TO RECOVERY
The foregoing facts prove, as a matter of law, that there was a contract between the parties
and it satisfied the requirements of the applicable statute of frauds:
A. The Contract
The requirements of §1101 .806(c), Tex. Occ. Code, as explained by the court of appeals in
Litton Loan Servicing, LP v. Manning, 366 S.W.3d 837 (Tex.App.-Dallas 2012, pet. denied) also
were met:
7
1. The agreement or memorandum is in writing: It is an email from Paul Leventis to Cottrell
dated December 14, 2011, which states, “Per our conversation yesterday, Burton Creek
Development will pay you a %6 commission for any buyer that you bring to the table who
closes on our property located at WJ Bryan, Villa Maria and Nash.” (Leventis Deposition,
pg. 26 and Exhibit 61 thereto).
2. The agreement or memorandum is signed by the party against whom the action is brought
or by a person authorized by that party to sign the document: The December 1 4, 20 1 1 email
says it is from “Paul Leventis [mailto:paull@brazostrace.com]” and is signed “Paul”
electronically. At the time he sent the December 14, 201 1 email, Leventis was (and still is)
a member of Burton Creek Management, LLC, the sole general partner of Burton Creek
Development, Ltd. Burton Creek Development, Ltd. was the seller in the transaction for
which Cottrell earned the commission. The December 14, 2011 email states that it was
Burton Creek Development, Ltd. which agreed to pay Cottrell the commission.
3. The agreement or memorandum promises that a definite commission will be paid: The
December 14, 201 1 email states, “[Development will pay you a %6 commission.”
4. The agreement or memorandum states the name of the broker to whom the commission
is to be paid: The December 14, 201 1 email is addressed to “David Cottrell.” The salutation
is to “David.”
5. The agreement or memorandum either itself or by reference to some other existing
writing, identifies with reasonable certainty the land to be conveyed: The email identifies
the property as being “our property located at WJ Bryan, Villa Maria and Nash.” The
summary judgment evidence shows that the only property owned by Burton Creek
Development, Ltd. that was bounded by “WJ Bryan, Villa Maria and Nash,” was Lot I in
Briar Meadows Creek Subdivision, Phase III and that the property sold to the purchaser
procured by Cottrell was located within Lot 1 .
In the unlikely event the Court finds Cottrell’s evidence regarding identification of the land
is insufficient, then his evidence shows that he fully performed and that Burton Creek Development,
Ltd. know'ingly accepted his services by completing the transaction arranged by him and received
benefits from that transaction. Such partial performance eliminates the need to prove that the
agreement identified the land with reasonable certainty. See, Carmack, supra.
1. Cottrell fully performed by procuring the purchaser. Cottrell introduced Leventis to
representatives of Race Trac, a convenience store/gas station chain out of Georgia. Cottrell
was an active participant in all of the meetings between Leventis and the Race Trac
representatives. Leventis kept Cottrell informed of contract negotiations and status, at least
up until Burton Creek Development, Ltd. decided to renege on the email agreement. The
evidence shows that Gingercrest, an entity related to Race Trac, ultimately purchased the
property from Burton Creek Development, Ltd.
2. The Defendants knowingly accepted Cottrell’s services by completing the transaction
arranged by him and received benefits from that transaction. The summary judgment
evidence shows that Burton Creek Development, Ltd. sold the property to RaceTrac’s sister
company, Gingercrest, by deed dated January 29, 2013. The settlement statement signed by
Burton Creek Development, Ltd. in connection with that sale shows that it was paid
$850,252.50 from the Race Trac affiliate for the property.
8
3. The Defendants acknowledged in writing their obligation for a commission, as was
established above.
4. The documentary evidence establishes the amount of the commission due. The email
agreement or memorandum set the commission at 6%. The settlement statement from the
closing of the sale shows that the property was sold for $850,252.50 on January 29, 2013.
Six percent of $850,252.50 is $50,015,15.
B. Cottrell’s Demand for Payment and Defendants’ Breach
The summary judgment evidence shows that Cottrell was not paid a commission on the
transaction, i.e., Burton Creek Development, Ltd. failed to comply with the agreement, that Cottrell
made demand for payment and that Button Creek Development, Ltd. failed and refused to pay it.
C. Cottrell’s Damages
The documentary evidence establishes the amount of the commission due. The email
agreement or memorandum set the commission at 6%. The settlement statement from the closing
of the sale shows that the property was sold for $850,252.50 on January 29, 2013. Six percent of
$850,252.50 is $50,015.15.
All of the foregoing establishes, as a matter of law, that Burton Creek Development, Ltd.
breached its contract with Cottrell, that Cottrell was damaged in the sum of S50,0 15.15 and that
Burton Creek Management, LLC is the general partner of Burton Creek Development, Ltd. and, as
such, is jointly and severally liable to Cottrell.
Respectfully submitted,
ROBERT G. BAILEY, P.C.
Bv:/S/ ROBERT G. BAILEY
Robert G. Bailey
State Bar No. 01536200
3306 Sul Ross
Houston, Texas 77098
Land: 832-485-1338
Cell: 713-819-5534
Fax: 713-630-0017
Email: rbailey@robertbaileypc.com
ATTORNEY FOR PLAINTIFF
9
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on the following
counsel of record via fax, hand delivery or certified mail on March 17, 2014:
Christopher W. Peterson
E.V. “Rusty” Adams, III
Peterson Law Group
3608 East 29lh St., Suite 1 12
Bryan, Texas 77802
Phone: 979-703-7014
Fax: 979-703-7031
Email: rusty@brazoslawyers.com
/S/ ROBERT G. BAILEY
Robert G. Bailey
10
APPENDIX 5
EXHIBITS ATTACHED
HERETO CAN BE FOUND
IN THE CLERK’S
RECORD. THEY HAD TO
BE REMOVED BECAUSE
THE FILE SIZE
WOULDN’T ALLOW FOR
EFILING. THANK YOU.
Filed 4/22/2014 4:44:25 PM
Marc Hamlin, District Clerk
Brazos County, Texas
Kayla Johnson
NO. 13-000672-C V-272
DAVID COTTREL1, § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 272D JUDICIAL Df STRICT
§
•AELOPMENT, §
LTD., BURTON CREEK
MANAGEMENT, Li C AND BRAZOS §
TRACE, EEC §
Defendants. § OF BRAZOS COUNTY, TEXAS
DEFENDANTS' RESPONSE TO
PLAINTIFF’S CROSS-MOTION FOR PARTIAL St JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Defendants. Burton Creek Development. Lid.. Burton Creek Management
* ■？
i,i.C unci Brazos Trace, LI..C-, Non-Movants herein, and request this Honorable Court io Dr, NY
Movant's Cross-Motion tor Partial Summary Judumcm and GRANJ Defendants' Motion lor
.C 1I : '-r,
- iPfe‘V
i i’tf . r
i 1 1- f O 8< ft .' T V?
■*
/ i.t
** -v* w, * * -
• »«
A. Pursuant to Rule 166a(d). Rules of Civil Procedure, this notice shall serve a
Piai miffs statement of intent to use unfiled discovery products as proof in Plaintiffs Motion for
Summary J uaument.
B. In addition to Defendants/ summary judumem evidence attached to Defendant*
Motion for Summary Judgment, Defendants submit affidavits, and deposition transcripts, along
with documentary evidence attached thereto as exhibits, as summary judgment evidence.
attached hereto, riled with this response and incorporated by such reference for all purposes as if
VV i • V, . -feL L l i i i iiV!V;;:.
n.
A, Defendants owned numerous tracts of land near the area of William Joel Bryan
Parkway, Nash Si reel, and Has! Villa Maria Road. Cottrell Deposition 83:18*
83:20; 83:21-87:20 and Exhibits 4 and 16 thereto, Leveniis Affidavit.
11. Defendants, by and through their agent. Paul Levemis, had general
communications with Plaintiff regarding developing the area as a mixed use
development. During this time, a proposed “General Letter of Understanding'*
was drafted. This document was never agreed upon or signed, and the joint
venture contemplated therein never materialized. Cottrell Deposition 46:24-53:5
and Exhibit 3 thereto.
C The subject of the aliened agreement was land other than the corner pad which
soiu:
The email upon which Plaintiff bases his claim was a proposed agreement
regarding land which was intended n> be sold to an apart mem developer.
Cottrell Deposition 62:3-62:19; 62:20-63:21 and Exhibit 4 thereto.
(Specifically, the alleged contract is Exhibit A to Deposition Exhibit 4.)
b. Plaintiff never replied to the email to accept the offer or to clarify what 1aru! it
covered. Cottrell deposition 60:21-61:21 and Exhibit 4 thereto.
(Questioning regarding Exhibit 4 begins at 53:6,)
e. Exhibit B to Plaintiffs Petition was not part of the alleged contrac:. Cottrell
Deposition 54:14-57:15 and Exhibit 4 thereto.
d. The price discussed in the alleged agreement was a price which supports the
conclusion that it applied to apartment land, and not to die corner pad.
Cottrell Deposition 98:22-99:10 and Exhibit 26 thereto.
e. The buyer out of Dallas (mentioned in the alleged agreemerr.) was an
apartment developer, and not CVS. In fact, the dealings with CVS ended in
Jarman of 201 E almost a year before the alleged agreement. Cottrell
Deposition 132: 10-134: 1 and Deposition Exhibit 25 thereto.
D. Defendants owned numerous tracts in that general vicinity. Cottrell Deposition
83:18-83:20; 83:21-87:20 and Exhibits 4 and 16 thereto.
E. The sign advertising property in the area was erected and paid tor by Leveniis on
behalf of Defendants. Cottrell Deposition 43:15-44:6.
The sign was not placed on the corner pad. Cottrell Deposition 41:8-4! .18,
it was never contemplated that the comer pad would be apartment land Levants
H he prospective deal with CVS was pursued and lost ions before the lime of the
alleged agreement. Cottrell Deposition 96:22-98:21 ami Exhibit 25 thereto:
98:22-99:1 0 and Exhibit 26 thereto; Cottrell Deposition I32:1(M33iHL
Seyhan (an employee of the purchaser) contacted Cottrell in .009 or 0 1. 0. loin
before the writing upon which Plaintiffs claim existed.
39:25-40:25.
Cottrell was not involved in the transaction. Cottrell Deposition 129:5-130:13*
Cottrell was copied on the emails between Lev ends and the buyer because he was
looking for a buyer for the apartment land. Cottrell Deposition 116:5-116:19
and Exhibit 49 thereto: Cottrell Exhibit 5
L. Cottrell never replied to die emails and did not preserve his emails. Cottrell
Deposition 101:10-102:4: 117:19-118:16.
\L The parcel of land which was sold did not touch Villa Maria Cottrell Deposition
71:16-73:4 and Exhibit 7 thereto,
N. Starting in September of 20:2, Cottrell began asking I even* is to sign a
commission agreement for the comer pad site, showing dial he knew there was no
commission agreement in place. C ottrell Deposition i !9:7-! 19:18 and Exhibit
53 thereto; Cottrell Deposition 125:4-125:10 and Exhibit 56 thereto.
O. Plaintiff never listed the property. Leventis affidavit.
III.
A. Y i rn :V«'T"li '•
: V* >-ÿ vi > 1, i
'
.1 <
B. Allowing circumvention of the Statute of Frauds renders it meaningless. Th
Real F.staie Dealers License Act. which contains the applicable s’ at me of fra: ids. is an
exercise of the police power of the State to regulate a private business which affects the
public interest. Hal! v. Hard. 160 Tex. 565 n%0). As purl of that regulation, the
Legislature has seen 111 to regulate dealers by codifying a statute of frauds, in order to
prevent fraud in commission agreements. Our conns require strict compliance with the
terms of the RKLA if a broker is to use the courts for recovery of his fees or charge* for
his services. kL at 572. Thus. Plaintiff, in order to collect his fees, must strictly complv
with the provisions of the Act. including the statute of frauds. To allow otherwise would
eviscerate the law and frustrate the purposes of the Legislature.
C Validity of writing determined at the time the buyer is procured i'be "ulidity of
a writing is determined at the time the buyer is procured. Frady y. May. 2? S. A‘.3d 558.
562 0 ex. Anp. Fort Worth 2000, pet denied). The writing upon which Plaint, ffs claim
is based is dated December 14. 201!. Plaintiff testified that he procured the buyer in
2009 or 2010. Cottrell Deposition 39:25-40:25. Plaintiff could not have relied on the
aliened
V-.
agreement
'w
at a time when it did not exist.
]). Partial performance doctrine. Plaintiff relies on the theory of pan iai
performance in art effort to circumvent the statute of frauds. 'There arc certain requirements
which must be shown in order to recover on this theory. Strict compliance with these
requirements is necessary to prevent the exception from swallowing the rule.
First, in order to apply the part performance exception, there must be strong
evidence csiabhshiiig the existence of an agreement and its terms. Carmack v Heitwav
Development To.. 7u« SAV.2d 27, 40 (Tex. App.— Dallas 1985. no writ). Here, there is no such
stromi evidence, in fact, the evidence shows otherwise. The alleged agreement, if any. is for
apartment land. The description is not adequate to identify the land. The email relied upon does
not set forth the essential terms of the alleged agreement. This is certainly not strong evidence.
. .. . .
A broker's tall performance alone is not sufficient to take a commission agreement out of the
v,. W, U: idqua. . Jnc.. 159 S.W.2J 228. 251
..
Furthermore, the parly acting
( Tex. App.-
in reliance on the alleged contract
.....
statute oHrai-.ds. because such a construction would nullity the statute id., at 41. dung I, andis
Amarillo 1 942. writ iefd;-.
must after a substantial
dciriTTicnt: tor wineh lie has no adequate remedy. Kxxon Corn, v. Rreezevalc. 1 .id.. 82 S.W.3J
429. 459 (Tex . App. --Dallas 2002, pel. denied). Mere, it is not shown that Plaintiff did anything
except answer a phone call.
Second,
Luthem v. Kruse. 290 S.\V.3d 922.. 928 < Tex. App. ....
there must be afilrmaii vc corroboration by both parties of the missing terms.
Dallas 2009. no pel.), i lore, we have quite
the opposite situation. Ail of the evidence points to the fact that the offer was intended to cover
only apartment land, and in any case did not cover the corner pad which was actually sold, if
both parties do not affirmatively corroborate the same missing term, then there is no agreement.
Third, the partial performance, if any, must be unequhocably referable to the agreement
niv.. 2013 Ml. 1803549 (Tex. App. ....
and corroborative of the fact that a contract was actual) v made. Hairston v. Southern Methodist
Dallas 201,3.
at 43 9-49. The partial performance must be such
. denied L china Breeze vale, 82 SAY.3d
as could have been done with no oi ter design
than to fulfill l he particular agreement sought to be enforced. Without such precision, he acts of
performance do not tend to prove the existence of the parol agreement sought to be enforced. Id.
Mere, the performance, if any, of Plaintiff could have been done with a design to make the
apartment land tor another part of the development) more attractive to a developer, and thus was
not uncuuivocablv referable to the alleecd agreement, nor was it corroborate e of the fact that the
panics intended to make a contract on the corner pad. ‘The relevant issue is not whether there is
evidence that the performance conic be referable to the contract winch a party is trying to
enforce; rather, it is whether there is evidence that the performance is solely referable to the
contract/' Id.
finally, even if partial performance is proven, only reliance damages are available. Lost
profits or other contractual damages are not available. Maacohar N. American, v. Grasso
Oil field Svcs.. 736 S.W.2d 787. 796. Plaintiff has made no proof’ of reliance damages.
Therefore, partial performance foils as a theory of recovery.
D. Even if there is a contract to sell the whole tract, Plaintiff cannot recover by
setting part of the tract. liven if the Court finds that a valid contract existed with respect to Lot
:. Plaintiff cannot recover. When an owner of land authorizes a broker to sell me whole tract.
and not merely a part thereof, the broker cannot recover a commission upon proof that he
O'Neil v. O'NeiL 258 S.W. 588. 59! (Tex. App. ....
secured a purchaser ready, willing, and able to buy a part of the properly ai the
Fort Worth 1924. writ dism d
stipulated price.
Therefore, if the Court finds that the alleged agreement applied to Lot i. Plaintiff cannot recover,
worn).
because all of Lot 1 was not sold.
For the foregoing reasons, the Court should deny Plaintiff s Cross-Motion for Partial
Summary Judgment and grant Defendant’s Motion for Summary Judgment.
PRAYER
WHEREFORE, PREMISES CONSIDERED. Non- Movants pray that this Court will
denv Plaintiffs Cross-Motion for Partial Summary Judgment and mnt Defendant’s Motion for
Summary Judgment, or order such other relief as may be appropriate.
Respectfully submitted.
Peterson Law Group
By: .....
!L V. "Rusty'1 Adams !H
Texas Bar No. 24045372
■
-
1733 Briarcresi Drive. Suite 100
Bryan. Texas 77802
*
Tel. (979) 703-7014
Fax. ( ) 703-703 1
F.maii : rusty-'fi:brazos!a\vyers.com
Attorney for Defendants
Burton Creek Development. I ad. Burton K reek
Management. LI..C and Brazos Trace. LLC
certify that on April 22. 2014. a true and correct copy of Defendants’ Response to
]
oil on for Summary judgment was served on Robert G. Bade) dectroniealiy
rbailcy rOrobcnbaiicypc.com, and the electronic transmission was reported as complete.
11. V. "Rusty'* Adams S!I
E-mail : rusty -g brazosiawyers.com
Filed 4/22/2014 4:44:25 PM
Marc Hamlin, District Clerk
Brazos County, Texas
Kayla Johnson
NO. 1 .5-000672-C V-272
DAVID COTTRELI § IN HIE DISTRICT COURT
Plaintiff, §
§
V. § 272D JUDICIAL. DISTRK [
LTD., BURTON CREEK
MANAGEMENT, EEC AND BRAZOS
TRACE, EEC >
Defendants. § OF BRAZOS CO l NTY, I EX AS
APPENDIX TO
DEFENDANTS’ RESPONSE TO
PLAINTIFF’S MOTION FOR PARTIAL SI MM ARY JUDGMENT
TABLE OF CONTENTS
Mi summary judgment evidence in this appendix is incorporated by reference TV
Defendants’ Response to Plaintiffs Motion for Partial Summarv Jiukm cm
' i*
iff -ri A. v
viu
?i N
' le
i
Hxhihk A: Affidavit of Paul I .event is
exhibit 8: Affidavit of I*. V, ” Rusty Adams 111 attesting to the
*?
amount and reasonableness of attorney fees.
Exhibit C: Affidavit of K. V. "Rusty’’ Adams Hi attesting to lix
a u i.l vent i c i \ v o I' do e umei it s .
n ‘
1 Je po s i i i o n l ran.se ri pt .
l:\hibii D: frue and correct copy of the transcript of the
deposition of David Coureii with a true copy of the certificate of
the deposition officer, true and correct copies of the referenced
exhibits, and the affidavit of!:. V. ,!RuslvM Adams HI.
Watefflti&asspifaabBgtiHrfWM
NO. 1 3-000672-CV-272
DAVID COTTREL1 § IN THE DISTRICT ( OCR I
Plaintiff, $
§
§ 272D JUDICIAL DISTRICT
§
BURTON CREEK DK\ Ei.OPMFM . §
LTD., BLR I ON CREEK §
MANAGEMENT, EEC AND BRAZOS §
TRACE. EEC §
Defendants. § OF BRAZOS COUNTY, TEXAS
AFFIDAVIT OE PALE EKVEN HS
BEFORE ME, the undersigned authority, on this day personally appeared Paul Levemis.
u ho. being by me duly sworn, deposed as follows:
"My name is Paul Leventis. I am over twenty-one years of age. of sound mind and
capable of making this affidavit. The facts stated in this affidavit are personally known by me
and are true and correct.
•Mv name is Paul i .eventis. ! am an officer of each of the Defendants in this suit.
'Defendants own or owned several tracts of land in the viemiu of William duel Bn an
Farkwav. Nash Street, and Last Villa Maria Road in Brvan. I had uenerai communications with
David Cotircl! regarding the development of those lands. There was a proposed "General i.etter
of Understanding" circulated which contemplated such a development plan, l-foviv.ver. that
General Letter of Understanding was never aureed upon or sinned, and lire join, venture
contemplated therein never took place.
I'hcre ■'-vere several iterations of site plans contemplated ior a mtÿcc-use development.
In each of the site plans, the corner pad on the corner of William Joel Bryan Parkway and Mash
Street was to he a retail development including possibly a convenience store, in some o- the
plans. the additional frontage on William Joel Brvan was to be retail, hi some, it was .O
apartments. 'The land to the south of the corner pad was to he apartments. None o! the plans
contemplated apartments on the corner pad.
"
1 placed a sign near William Joel Bryan Parkway near the intersection with Nash. The
si an was farther west on W iiiiani Joel Brvan and was not on the corner rad. 1 raid for the siun.
Cotircil had no part in placing the sign, although his telephone number was on it. This sign was
placed long before i sent the email on which Plaintiffs claim is based.
'"The Plaintiff is suinii based on an email 1 sent on December 14. 201 1 . in which J slated
dial I would nuv a commission if he bronchi me a buyer on the pari of the property which was set
aside tor apartments. In the email. I specifically referenced the apartment land. Additionally, i
set forth that die price had to exceed $7.00 per square foot in order to beat a previous offer and
cover Plaintiffs commission. The email does not offer to pay a commission on the corner pad,
which would fetch a significantly higher price and was not to be used tor a pan me ms.
’'Plain:iff never responded to my email to accept m\ offer, nor did he make any attempt
to clarify what land was referenced in mv email.
"Plaintiff never asked me to siun a listing agreement or any other commission agreement
until after Plaintiff learned that the corner Dad was beine sold. 1 never signed arm six
agreement.
The transaction on which Plaintiffs claim is based was the sale of the cornei pad only.
and not for the apartment land. The corner pad sold tor a price much higher than :>7.00 per
■uuare loot
’Plaintiff neÿer listed the property.
■'Plaintiff was copied on emails between me and the prospective buyer m order to keep
him informed in his efforts to procure a buyer for the apartment land. Other than being Kept
informed* Plainin'; was not involved in the transaction. Plaintiff did not respond to th: emails.
which were sera to him for his information.
"‘PjainlilT did not contact me again until September when he learned that the comer pad
was to be sold. A! that time, he asked me to execute a commission agreement resard mu the
corner pad.
“1 am a custodian of the records of Defendants, and each of them. Ah of the Hxhibits
attached 10 Defendant's Response to Plaintiffs Cross-Motion for Partial Summary judgment are
are made and kent
*
—
bv Defendants in the regular course of business. The information contained
therein was recorded by, or from information transmitted by. a person with knowledge of the
acts, events, conditions, opinions, or diagnoses recorded therein, at or near the time thereof I "he
records attached thereto are true and correct copies of the originals."
SIGN HD on
Paul Levemis, Affiant
SlIBSCRIfJl.il) AND SWORN TO BlffORH MH 01 r.W-w,
n V-. :
■
r
Notary Public. Stale oi'Texas
NO. 1 3-000672-CV-272
DAVID COTTRELL IN THE DISTRICT COURT
Plaintiff,
V, 2721) JUDICIAL DISTRICT
BURTON CREEK DEVELOPMENT,
LTD., Bi R ION C REEK
MANAGEMENT, EEC AND BRAZOS
TRACE, EEC
Defendants. § OF BRAZOS COUNTY, TEXAS
AFFIDAVIT IN SUPPORT OF REQUEST
FOR ATTORN! A S FEES
BEFORE ME. the undersigned authority, on this day personally appeared E. V "Rusty**
Adams HI. who swore on oath that the following facts: are true:
"My name is IT V. "Rusty” Adams III. I am over 18 years of age. of sound mind, and
fully competent to make this affidavit [ have personal knowledge of the facts stated herein and
ihev are all true and correct.
*'! am an atrornev licensed to practice law in the Slate of Texas. ! have practiced law in
the Uryan-Colicge Station and surrounding areas for over nine years arm am familiar with the
fees customarily charged in this area for the type of work done in this matter, i.e.. litigation.
"On February 14, 2013. Defendants employed me in connection with the matter on which
this suit is based. The invoice from my office attached hereto accurately reflects the amount of
lime and attorney tecs (including legal professionals under my supervision) and costs expended
in this matter. Both the invoice and said affidavit are incorporated into this affidavit b> reference
os if set forth in full.
V1 am a custodian of records for Peterson Law Group. The records attached hereto arc
made hv. or from information transmitted b\\ a person with knowledge of the events or
conditions recorded therein. The records attached hereto are made at or near the time of the
events or conditions recorded therein. The records attached hereto are made and kept in the
regular and ordinal*) course of business.
"Movant is entitled to recover the reasonable aUorneyN fees requested herein pursuant to
written contract.
Tt is niv opinion that these Sees are reasonable attorney's lees based upon the following
j actors:
The novelty and difficulty of the issue involved, the ski!! required to provide li'
legal services properly, and the experience, reputation, and expertise of -he lawy*
:v: law vers performing the sen ices:
.• i V.
The time and labor invoked to perform the legal services properly: and
['he fee customarily chanced in the community for similar services.
'Tt is my opinion that attorney s ices in the amount of $5,000.00 would be a reasonable
fee for the services required to perform post-judgment discovery and to satisfy the judgment by
writ of execution and other procedures.
"It is my opinion that in the event this case is appealed to the court of appeals , attorney's
fees in the amount of S20.000.00 would be a reasonable fee for services performed li. this cause
on appeal to the court of appeals.
"It is m\ opinion thru in the event this case is annealed to I he Texas Supreme Court.
additional attorney's lees in the amount of S20.000.00 would be a reasonable lee jar services
performed in this cause on appeal to the Texas Supreme Court.”
SI ON Hi) on V . 2014.
H. V. vRustv" Adams 111. A Hi am
APPENDIX 6
EXHIBITS ATTACHED
HERETO CAN BE FOUND
IN THE CLERK’S
RECORD. THEY HAD TO
BE REMOVED BECAUSE
THE FILE SIZE
WOULDN’T ALLOW FOR
EFILING. THANK YOU.
IKI/D
5/16/2014 3:43:12 PM
Marc Hamlin, District Clerk
Brazos County, Texas
Kayla Johnson
No. 1 3-000672-C V-272
DAVID COTTRELL § IN THE DISTRICT COURT OF
§
VS. § BRAZOS COUNTY, TEXAS
§
BURTON CREEK DEVELOPMENT, LTD. §
AND §
BURTON CREEK MANAGEMENT, LLC § 272ND JUDICIAL DISTRICT
PARTIAL SUMMARY JUDGMENT
IT IS ORDERED THAT the Motion for Summary Judgment filed herein by Burton Creek
Development, Ltd. and Burton Creek Management, LLC, Defendants, be and is hereby DENIED.
IT IS ORDERED THAT the Cross-Motion for Partial Summary Judgment tiled herein by
David Cottrell, Plaintiff, be and is hereby GRANTED.
IT IS ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff, have and
recover summary judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for actual damages in the principal amount
of $50,015.15.
Signed this
APPROVED AS TO FORM AND APPROVED AS TO FORM ONLY:
SUBSTANCE:
PETERSON LAW GROUP
ROBERT G. BAILEY, P C.
By: _
By:_ E.V. “Rusty” Adams, III
Robert G. Bailey State Bar No. 24045372
State Bar No. 01536200 3608 East 29lh St., Suite 112
3306 Sul Ross Bryan, Texas 77802
Houston, Texas 77098 Phone: 979-703-7014
Land: 832-485-1338 Fax: 979-703-7031
Cell: 713-819-5534 Email: nrsty@braz0slaw7ers.com
Fax: 713-630-0017
Email: rbailey@robcrtbailcypc.com ATTORNEY FOR DEFENDANTS,
BURTON CREEK DEVELOPMENT, LTD.
ATTORNEY FOR PLAINTIFF, AND
DAVID COTTRELL BUR I ON CREEK MANAGEMENT, LLC
Filed 5/16/2014 3:43:12 PM
Marc Hamlin, District Clerk
Brazos County, Texas
Kayla Johnson
ROBERT G. BAILEY, P.C.
ATTORNEY AT LAW
3306 SUL ROSS
HOUSTON. TLX AS 77098
BOARD CERTIFIED CIVIL TRIAL. I AW LAND: 832-485*1338
TCXAS BOARD OF LEGAL SPETIAI 1/ATJON CELL: 713 819 5534
FAX: 713-630-0017
May 16, 2014
Clerk, 272nd District Court VIA EFILE.TXCOURTS.GOV
r- /%/ih
300 E. 26,h Street, Suite 204
i-i.
Bryan, Texas 77803
Rc: No. 13-000672-CV-272; David Cottrell vs. Brazos Trace, LLC, Burton Creek Development,
Ltd. and Burton Creek Management, L.L.C.; In the District Court of Brazos County, Texas,
272nd Judicial District
Dear Clerk:
Please submit the attached order to Judge Bryan for entry. I submitted it to opposing counsel
for approval as to form, but received no response, so I am filing this without his signature.
Please call me if you have any questions regarding the forgoing.
Thank you for your prompt attention to this matter.
Yours truly,
Robert G. Bailey
RGB/bl
cc: David Cottrell, III
E.V. “Rusty” Adams, III VIA FFIt.I-.TXCOURTS.GOV
p. I
x
* * Ccmmin i ca: i on Result Report ( Jur. 27. 2014 8:1 1AM ) * * *
1) Brazos County ?7/ n d Dist, Court
2)
Date/Time: Jun. 27. 2014 8: 07AM
File Page
No. Mode Dest ration Pi (s) R e s J11 Not Sent
9842 Memory TX 91-71 3-630-00 1 7 —-9581832 P. 1 OK
ADAMS RU$~Y OK
Reason f c r e r ro r
£. 1 ) Hans Up or 1 ne fail
1
E. 2)
E. 3) No an S W e r F 4)
E. 5) Excee d e d max. E-nrail s :e
3SSL
mrt ru«*>. i>«vi«i CM
*nw» CawMy. Tan*
Kayta an
No. nÿm06?2-cn1. 1JIL Orthm—lf. be aud in hfitby DENIED.
IT IS ORDERED THAT the Ciou Motion fw Partial SWMnfxy iudgraem Tiled Itfttin by
David CMbe I, PlainltfT, be and M herooy GRANTED.
IT IS ORDERED, ADJUDGED AND DECREED than Eend CoMreR, Memlift, law red
recover ruumery judfneot of &tuf flow Burton Creel Development. Lid *rd Btntar. rlrocl
Mjo»|ÿj(ieai. LLC. Dctendmu, joiady and severally, ft* actual II the principal tmounr
at $30,015.15.
iifped dni of
•
iVendluj
APPROVED AS TO FORM AND APPROVED AS TO FORM ONLY-
SUBSTANCE.
PETERSON LAW GROUT
ROBERT o. BAILEY, F.C
i
Hy:
_
__
B.V. "ItoW* Arierm, HI
Robert ti. Bailey Slate Bar No 34045172
Star Km ML 01536200 3608 fit 29* St, Suite 112
: * oe. Svt Ran Bryan, Taxi*. 77A0Q
hixuioii. Teat 77091 PWorx. 979-703-7014
I ted 81L4RS 1338 Fax: 979 703 7031
Cell: Hmaih n»Fry(7i)!warr*l»iwytri I**"
FA*.: 713-630-0017
Email: rbaile-ythlfi'lx'TthailrvT’c uar ATTORNEY FOR DEFENDANTS,
HURTON CRbbK DEVELOPMENT. LTD
ATTORNEY FOR PLAKTlfF, AND
UAVIDUUl IKLLL HURTON CREEK MANAGEMENT LLC
No. 13-000672-CV-272
DAVID COTTRELL § IN THE DISTRICT COURT OF
§
VS. § BRAZOS COUNTY, TEXAS
§
BURTON CREEK DEVELOPMENT, LTD. §
AND §
BURTON CREEK MANAGEMENT, LLC § 272ND JUDICIAL DISTRICT
FINAL JUDGMENT
IT IS ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff, have and
recover judgment of and from Burton Creek Development, Ltd. and Burton Creek Management,
LLC, Defendants, jointly and severally, for actual damages in the principal amount of $50,01 5. 1 5,
together with pre-judgment interest thereon at the rate of 6% per annum from January 29, 2013 until
the date of this Final Judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for attorney’s fees in the sum of
$ 2-3 0
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees
in the sum of $ / 7-ÿ f h 0'OQ in the event an appeal to the court of appeals is filed by either of
Defendants Burton Creek Development, Ltd. or Burton Creek Management, LLC, and Plaintiff
David Cottrell is successful.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees
in the sum of $
7/ fAdjM in the event a petition for review is filed by either of Defendants
Burton Creek Development, Ltd. or Burton Creek Management, LLC, and Plaintiff David Cottrell
is required to file a response and is successful in the Supreme Court of Texas, which includes the
court’s refusal to hear the matter. DC. t
F1 LE D p
At M ... o'clock ... r_
DEC 0 3 20U
Bv
MAFIC KAM
_
CLEF1K
xas
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees
in the sum of $ A in the event a petition for review is granted by the Supreme Court
of Texas for representation at the merits briefing stage and Plaintiff David Cottrell is successful.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees
in the sum of $ j AOO-d (} in the event a petition for review is granted by the Supreme Court
of Texas for representation at the oral argument stage and Plaintiff David Cottrell is successful.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all taxable costs of court
are taxed against Burton Creek Development, Ltd. and Burton Creek Management, LLC,
Defendants, jointly and severally.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that interest shall accrue at
the rate of 5% per annum on the amounts awarded herein for damages, attorney fees and costs from
the date of this Final Judgment until paid. Interest, if any, on any contingent award of appellate
attorney fees shall accrue from the date of a final judgment in the appellate courts.
All claims and causes of action not expressly disposed of herein are hereby denied. This
judgment disposes of all claims and all parties and is final and appealable.
Signed this f "1
2
APPROVED AS TO FORM: APPROVED AS TO FORM ONLY:
ROBERT G. BAILEY, P.C.
By:
Robert G. Bailey
State Bar No. 01536200 State Bar No. 24045372
3306 Sul Ross 3608 East 29th St, Suite 112
Houston, Texas 77098 Bryan, Texas 77802
Land: 832-485-1338 Phone: 979-703-7014
Cell: 713-819-5534 Fax: 979-703-7031
Fax: 713-630-0017 Email: rusty@brazoslawyers.com
Email: rbailey@robertbaileypc.com
ATTORNEY FOR DEFENDANTS,
ATTORNEY FOR PLAINTIFF, BURTON CREEK DEVELOPMENT, LTD.
DAVID COTTRELL AND
BURTON CREEK MANAGEMENT, LLC
3