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

• Court: Court of Appeals of Texas
• Decided: May 6, 2015
• Docket: 07-15-00014-CV
• Status: Published

Opinion

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.

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

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.

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.

4. The settlement statement for your sale of the Property described in Exhibit B, attached hereto..

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..

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.

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

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.

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

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.

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

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'

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.

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.

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

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:

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.

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.

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

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.

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.

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.

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

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

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 '

Ptr our conversation yesterday, Burton Creek Development wUI pay you a %6 commission for any buyer that you bring to the table who doseson 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 A5/sf to cover you1 6% commission.

We can talk about the other tracts and pricing when we meet later this week.

l ou r/uo r tn/ibvztm r<:;4y AX

Lifftr Description of Contract Property

Brizoe Trace, LLC M U0o Venturas, lnc. QMrict Property location: SWC WVUam J Btysn Pkwy N*eh Rosti Biysn.TX * LfiCM. DESCRIPTION: A 'PARCEL OF LAND SITUATED IN THE CXTV OF BRYAN. TEXAS. MORE PARTICULARLY DESCRIBED AS FOLLOWS: HOMING AT Ttfc INTERSECTION OF THE WESTERLY RIGHT OF WAY OF NASH DRIVE AND TIC SOUTHERLY RIGHT OF WAY CF E WHAM J 0RYAN PARKWAY: THENCE CONTINUE ALONG SAID SOUTHERLY RIGHT OF WAY S B2*19'4S* W A aSTANCE OF 40.10' TO A POUT; T«NCE S arJ8'2i' w A DISTANCE OF 202.1s' TO A POINT; THENCE ALONG A CURVE TO TIC RIGHT HA VUG AN ARC LENGTH OF 21.81'. A RADIUS OF 766.20'. SUBTENDED BY A CHORD BEARMC AND DISTANCE OF S 8303*35* W. 21.01* TO A POINT; THENCE DEPARTING SAID SOUTHERLY RIGHT OF WAY S or2l*M* E A DISTANCE OF 239.67 TO A POINT; THEME N 82*36*21' E A DISTANCE OF 202.69' TO A POINT ON THE WESTERLY RIGHT OF MAY OF NASH DRIVE; THENCE ALONG SAID WESTERLY RIGHT OF WAY FOLLOWING A CURVE TO THE LETT HAVING AN ARC LENGTH CF 117,36'. A RADIUS OF S3J.OO', SUBTENDED BY A CHORD BEARING ANO OF N 01122*44' W. 117.13* TO A PONT; THENCE N 07*39'«" W A DISTANCE OF 113.39* TO A POINT; THENCE N 52*39’48" W A DISTANCE OF 42.43' TO THE PONT OF BEONNNC. CONTAINING 77,377 SQUARE FEET OR 1.701 ACRES MORE OR LESS

\

EXHIBIT B I « 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

AFFIDAVIT OF E. V. “RUSTY” ADAMS III

BEFORE ME, the undersigned authority, on this day personally appeared E. V. “Rusty”

Adams III, who swore on oath that the following facts are true:

"My name is E. V. “Rusty” Adams III. I am over the age of 1 8 years, of sound mind and

fully competent to make this affidavit. I have personal knowledge of the facts herein stated and

they are all true and correct.

"I verify that all copies of discovery and documents attached in the appendix to the

Defendants' Motion for Summary Judgment are true and correct copies of the original

documents."

SIGNED on 2014.

D AND SWORN TO BEFORE ME on rrr _ IAML by

VERONICA VALENCIA :T\ Notary Public, State of Texas My Commission Expires September 15, 2015

iSfT F Notary Public, State of Texas 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

AFFIDAVIT IN SUPPORT OF REQUEST FOR ATTORNEY S FEES

BEFORE ME, the undersigned authority, on this day personally appeared E. V. "Rusty"

Adams III, who swore on oath that the following facts are true:

"My name is E. V. "Rusty" Adams III. I am over 18 years of age, of sound mind, and

fully competent to make this affidavit. I have personal knowledge of the facts stated herein and

“I am an attorney licensed to practice law in the State of Texas. I have practiced law in

the Bryan-College Station and surrounding areas for over nine years and 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, 2014, Movants 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

time and attorney fees (including legal professionals under my supervision) and costs expended

in this matter. Both the invoice and said affidavit are incorporated into this affidavit by reference

as if set forth in full."

“I am a custodian of records for Peterson Law Group. The records attached hereto are

made by, or from information transmitted by, a person with knowledge of the events or

EXHIBIT _£ 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 ordinary course of business.

"Movant is entitled to recover the reasonable attorney's fees requested herein pursuant to

written contract.

"It is my opinion that these fees are reasonable attorney's fees based upon the following

factors:

1. The novelty and difficult)' of the issue involved, the skill required to provide the legal services properly, and the experience, reputation, and expertise of the lawyer or lawyers performing the sendees;

2. The time and labor involved to perform the legal sendees properly; and,

3. The fee customarily charged in the community for similar sendees.

"It is my opinion that attorney's fees in the amount of $5,000.00 would be a reasonable

fee for the senices 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 $20,000.00 would be a reasonable fee for services performed in this cause

on appeal to the court of appeals.

"It is my opinion that in the event this case is appealed to the Texas Supreme Court,

additional attorney's fees in the amount of $20,000.00 would be a reasonable fee for services

performed in this cause on appeal to the Texas Supreme Court."

SIGNED on

E. V. "Rusty1 Adams III, Affiant ro BEFORE ME mB**01* VERONICA VALENCIA 0 f?\ Notary Public. State of Texas My Commission Expires 2§g September 15, 2015

- ~ *7— - -- Notary Public, V State of Texas Time Entries

Date Matter Description User Rate Total 01/24/ 2013-03766 Normal Rate: Prepare Motion for Summary Judgment. Rusty $200.00 $200.00 2014 Adams

1.00

01/16/ 2013-03766 Normal Rate: Work on supplementation. Review of Amended petition. Rusty $200.00 $150.00 2014 Billed on Invoice 7276 Adams

0.75

01/09/ 2013-03766 Normal Rate: Received and reviewed amended petition. Respond to Paul’s Rusty $200.00 $700.00 2014 communication. Review of deposition of David Cottrell. Begin draft of Motion for Adams Summary Judgment. Billed on invoice 7276 3.50

01/08/ 2013-03766 Normal Rate: Communications with opposing counsel. Rusty $200.00 $50.00 2014 Billed on Invoice 7276 Adams

0.25

01/08/ 2013-03766 Normal Rate: Correspondence to client with mediation dates. Veronica $75.00 $18.75 2014 Billed on Invoice 7276 Contreras

01/03/ 2013-03766 Normal Rate: Receive and review response to Motion for Continuance. Rusty $200.00 $50.00 2014 Communication with Paul Leventis and with the Court. Adams Billed on Invoice 7055 0.25

01/02/ 2013-03766 Normal Rate: Communication with court and with Paul Leventis. Motion for Rusty $200.00 S250.00 2014 Continuance. Adams Billed on Invoice 7055 1.25

01/02/ 2013-03766 Normal Rate: Draft filing letter and Motion for Continuance. Send copy of Motion to Veronica $75.00 $75.00 2014 opposing counsel and client Contreras Billed on Invoice 7055 1.00

12/11/ 2013-03766 Normal Rate: Telephone conference with the Dispute Resolution Center to confirm Veronica $75.00 $18.75 2013 mediation was cancelled. Telephone conference with client to remind him mediation Contreras was cancelled. Billed on Invoice 7055 0.25

11/20/ 2013-03766 Normal Rate: Attend status hearing. Rusty $200.00 $50.00 2013 Billed on Invoice 6614 Adams

11/19/ 2013-03766 Normal Rate: Telephone conference with DRC to confirm Dec 12 is still available for Veronica $75.00 $37.50 2013 mediation. Draft and send orrespondence to opposing counsel confirming mediation. Contreras Billed on Invoice 6814 0.50

11/13/ 2013-03766 Normal Rate: Telephone conference with DRC to obtain new mediation dates. Veronica $75.00 $37.50 2013 Correspondence to client with new mediation dates. Correspondence to opposing Contreras counsel with new mediation dates. Date Matter Description User Rate • Total Billed on Invoice 6814 0.50

11/08/ 2013-03766 Normal Rate: Communications with client regarding mediation scheduling. Rusty $200.00 $50.00 2013 Billed on Invoice 6692 Adams

10/29/ 2013-03766 Normal Rate: Communications regarding scheduling of mediation. Rusty $200.00 $50.00 2013 Billed on Invoice 6692 Adams

10/24/ 2013-03766 Norma! Rate: Communications regarding scheduling of mediation. Rusty $200.00 $50.00 2013 Billed on Invoice 6616 Adams

10/22/ 2013-03766 Normal Rate: Communications regarding scheduling of mediation. Rusty $200.00 $50.00 2013 Billed on Invoice 6616 Adams

10/07/ 2013-03766 Normal Rate: Communications with Paul and with opposing counsel. Rusty $200.00 S50.00 2013 Billed on Invoice 6544 Adams

09/24/ 2013-03766 Normal Rate: Deposition of Paul Leventis. Rusty $200.00 $650.00 2013 Billed on Invoice 6417 Adams

3.25

09/23/ 2013-03766 Normal Rate: Communication with Paul regarding deposition. Rusty $200.00 S50.00 2013 Bilied on Invoice 6417 Adams

09/06/ 2013-03766 Normal Rate: Work on scheduling of deposition. Rusty $200.00 $50.00 2013 Billed on Invoice 6417 Adams

08/22/ 2013-03766 Normal Rate: Communication regarding scheduling of deposition and mediation. Rusty $200.00 $50.00 2013 Billed on Invoice 6294 Adams

08/13/ 2013-03766 Normal Rate: Communications with client and opposing counsel regarding deposition Rusty $200.00 $50.00 2013 of Paul. Adams Billed on Invoice 6130 0.25

08/06/ 2013-03766 Normal Rate: Review of deposition. Communication with opposing counsel and client Rusty $200.00 $250.00 2013 about rescheduling of Paul’s deposition. Adams Billed on Invoice 6130 1.25

07/26/ 2013-03766 Normal Rate: Deposition of David Cottrell. Rusty $200.00 $1,200.00 2013 Billed on Invoice 6070 Adams Date Matter Description User Rate Total

6.00

07/26/ 2013-03766 Normal Rate: Attend status hearing. Rusty $200.00 $100.00 2013 Billed on Invoice 6070 Adams

0.50

07/26/ 2013-03766 Normal Rate: Prepare for deposition of David Cottrell. Rusty $200.00 $650.00 2013 Billed on Invoice 6070 Adams

07/25/ 2013-03766 Norma! Rate: Preparation for deposition. Meet with client to prepare for deposition. Rusty $200.00 $800.00 2013 Billed on Invoice 6070 Adams

4.00

07/24/ 2013-03766 Normal Rate: Research in deed records. Prepare for depositions. Rusty $200.00 $250.00 2013 Billed on Invoice 6070 Adams

1.25

07/23/ 2013-03766 Normal Rate: Meet with client. Research in deed records. Rusty $200.00 $850.00 2013 Billed on Invoice 6070 Adams

4.25

07/22/ 2013-03766 Normal Rate: Prepare for meeting with Paul regarding depositions. Rusty $200.00 $100.00 2013 Billed on Invoice 6015 Adams

06/17/ 2013-03766 Normal Rate: Communication with opposing counsel about court reporter for Rusty $200.00 $50.00 2013 depositions. Adams Billed on Invoice 5696 0.25

06/14/ 2013-03766 Normal Rate: Deposition notices and reporter. Communicate with Paul Leventis Rusty $200.00 $100.00 2013 regarding pre-deposition appointments and deposition dates. Adams Billed on Invoice 5696 0.50

06/07/ 2013-03766 Normal Rate: Communications with opposing counsel about depositions and with Rusty $200.00 $50.00 2013 Paul about depositions and pre-deposition meetings. Adams Billed on Invoice 5573 0.25

06/06/ 2013-03766 Normal Rate: Communications about scheduling of depositions. Rusty $200.00 $50.00 2013 Billed on Invoice 5573 Adams

06/05/ 2013-03766 Normal Rate: Schedule depositions, communications with Paul about depos. Rusty $200.00 $50.00 2013 Billed on invoice 5573 Adams

06/04/ 2013-03766 Normal Rate: Communications with opposing counsel and client about scheduling of Rusty $200.00 $50.00 2013 depositions. Adams Billed on Invoice 5573 Date Matter Description User Rate Total

05/30/ 2013-03766 Normal Rate: Communications about scheduling of depositions. Rusty $200.00 $50.00 2013 Billed on Invoice 5573 Adams

05/29/ 2013-03766 Normal Rate: Communications about scheduling of depositions. Rusty $200.00 $50.00 2013 Billed on Invoice 5573 Adams

05/28/ 2013-03766 Normal Rate: Communications about depositions. Rusty $200.00 $50.00 2013 Billed on Invoice 5573 Adams

05/24/ 2013-03766 Norma! Rate: Scheduling of depositions. Rusty $200.00 $100.00 2013 Billed on Invoice 5472 Adams

05/15/ 2013-03766 Normal Rate: Communication regarding deposition dates for Cottrell. Rusty $200.00 $50.00 2013 Billed on Invoice 5472 Adams

05/13/ 2013-03766 Normal Rate: Research on statute of frauds issue. Rusty $200.00 $50.00 2013 Billed on invoice 5339 Adams

05/10/ 2013-03766 Normal Rate: Request deposition dates from opposing counsel. Rusty $200.00 S50.00 2013 Billed on Invoice 5339 Adams

05/09/ 2013-03766 Normal Rate: Communication from client. Rusty $200.00 $100.00 2013 Billed on Invoice 5339 Adams

05/08/ 2013-03766 Normal Rate: Cull documents brought by Paul. Review plaintiffs production for other Rusty $200.00 $850.00 2013 documents important to production. Finish our discovery and serve on opposing Adams counsel, additional research on the statute of frauds found in RELA. Billed on Invoice 5339 4.25

05/08/ 2013-03766 Normal Rate: Draft and send letters to Brazos County District Clerk and Attorney Veronica $75.00 $37.50 2013 Brantley with discovery responses. Contreras Billed on Invoice 5339 0.50

05/07/ 2013-03766 Normal Rate: Meet with Paul, work on our discovery responses, research on statute Rusty $200.00 $900.00 2013 of frauds and part performance. Adams Billed on Invoice 5339 4.50

05/06/ 2013-03766 Normal Rate: Communications with Paul, work on our discovery responses, meeting Rusty $200.00 $400.00 2013 with Paul. Adams Billed on Invoice 5339 Date Matter Description User Rate Total

2.00

05/03/ 2013-03766 Normal Rate: Review of plaintiffs production. Rusty $200.00 $300.00 2013 Billed on Invoice 5339 Adams

1.50

05/02/ 2013-03766 Normal Rate: Review of plaintiffs production. Rusty $200.00 $700.00 2013 Billed on Invoice 5339 Adams

3.50

05/01/ 2013-03766 Normal Rate: Review of plaintiffs production. Rusty 5200.00 $200.00 2013 Billed on Invoice 5339 Adams

04/30/ 2013-03766 Normal Rate: Review of plaintiffs production responses. Rusty $200.00 $100.00 2013 Billed on Invoice 5339 Adams

04/29/ 2013-03766 Normal Rate: Review and notes on Plaintiffs discovery responses. Rusty $200.00 $150.00 2013 Billed on Invoice 5227 Adams

04/19/ 2013-03766 Normal rate: Review discovery answers from Plaintiff. Chris $225.00 $112.50 2013 Billed on Invoice 5227 Peterson

04/18/ 2013-03766 Normal Rate: Letter to clerk regarding duplicate case numbers. Rusty $200.00 $50.00 2013 Billed on Invoice 5227 Adams

04/18/ 2013-03766 Norma! Rate: Prepared documents and send to opposing counsel Veronica $75.00 $18.75 2013 Billed on Invoice 5227 Contreras

04/10/ 2013-03766 Normal Rate: Meet with client about answer, counterclaim, and discovery. Got Rusty $200.00 $450.00 2013 signature on verified denial. Asked for documents. Adams Billed on Invoice 5227 2.25

04/09/ 2013-03766 Normal rate: Review and revise Answer and Counterclaim. Chris $225.00 $112.50 2013 Billed on Invoice 5227 Peterson

04/09/ 2013-03766 Normal Rate: Finish answer and counterclaim. Drafting of discovery responses. Rusty $200.00 $600.00 2013 Billed on Invoice 5227 Adams

3.00

04/08/ 2013-03766 Normal Rate: Drafting of answer and counterclaim. Rusty $200.00 $300.00 2013 Billed on Invoice 5227 Adams Date Matter Description User Rate . Total

03/27/ 2013-03766 Norma! Rate: Research and drafting on answer and counterclaim. Rusty S200.00 S300.00 2013 Billed on Invoice 4982 Adams

03/26/ 2013-03766 Normal Rate: Draft outgoing discovery. Rusty $200.00 $400.00 2013 Billed on Invoice 4982 Adams

03/26/ 2013-03766 Normal rate: Revised and finalize Requests for Disclosure, interrogatories and Chris $225.00 $225.00 2013 Requests for Production Peterson Billed on invoice 4982 1.00

03/22/ 2013-03766 Normal Rate: Research on applicable law, and strategy conference with Chris, Rusty $200.00 $100.00 2013 Billed on Invoice 4982 Adams

03/21/ 2013-03766 Normal Rate: Additional research on TRELA, electronic signatures, and other Rusty $200.00 $450.00 2013 applicable law. Adams Billed on Invoice 4982 2.25

03/20/ 2013-03766 Normal Rate: Research on TRELA and other applicable law. Rusty $200.00 $600.00 2013 Billed on Invoice 4982 Adams

03/19/ 2013-03766 Normal Rate: Research on TRELA statute of frauds. Rusty $200.00 $100.00 2013 Billed on Invoice 4982 Adams

03/06/ 2013-03766 Normal rate: Finalize and send responsive letter to Robert Bailey. Chris $225.00 $56.25 2013 Billed on Invoice 4982 Peterson

02/26/ 2013-03766 Normal rate: Receive response letter from opposing counsel. Correspond with Paul Chris $225.00 $168.75 2013 Leventis re: same. Telephone conference with Paul Leventis. Peterson Billed on Invoice 4982 0.75

02/21/ 2013-03766 Normal rate: Telephone conference with Paul Leventis. Correspond with Paul Chris $225.00 $225.00 2013 Leventis re settlement amounts. Revise and send letter to opposing counsel. Peterson Billed on Invoice 4982 1.00

02/21/ 2013-03766 Normal rate: Correspond with Paul Leventis. Revise and send letter to opposing Chris $225.00 $166.75 2013 counsel re response to demand letter Peterson Billed on Invoice 4982 0.75

02/20/ 2013-03766 Normal rate: Telephone conferences with Paul Leventis Chris $225.00 $112.50 2013 Billed on Invoice 4982 Peterson Date Matter Description User Rate Total

02/14/ 2013-03766 Normal rate: Receive and review demand letter. Telephone conference with Paul Chris $225.00 $168.75 2013 Leventis. Peterson Billed on Invoice 4982 0.75

82.00 $16,143.75 Expense Entries

Date Description User Amount Invoice 03/26/2013 Mail charge Sarah Cozart $1.38 Invoice 4982

2013-03766

04/10/2013 Counterclaim fee paid to Brazos County District Clerk. Maritza Hoffman $40.00 Invoice 5227

07/24/2013 Fee paid to Brazos County Clerk for copies. Maritza Hoffman $20.00 Invoice 6070

08/09/2013 Court reporter fee paid to Ann Hunt for deposition. Maritza Hoffman $929.25 Invoice 6130

$990.63 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

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

On , 2014, the Court considered Defendants' Motion for

Summary Judgment and request that the Court enter Summary Judgment in favor of Movants on

the counterclaim and affirmative defenses set forth therein and against Plaintiff David Cottrell.

After due consideration of the summary judgment evidence, including affidavits,

discovery, documentary evidence and Non-Movanfs pleadings, and the argument of counsel, this

Court finds that Defendants' Motion is due to be GRANTED and makes the following findings:

The Court finds there is no genuine issue of material fact as to Defendants' counterclaim

for declaratory judgment and Defendants are entitled to summary judgment thereon.

The Court finds there is no genuine issue of material fact as to Defendants' affirmative

defense of statute of frauds and Defendants are entitled to summary judgment thereon.

The Court finds there is no genuine issue of material fact as to Defendants' affirmative

defense of failure of consideration and Defendants are entitled to summary judgment thereon.

The Court finds that Defendants have proven the counterclaim and disproved at least one

element of Plaintiff s claim for breach of contract.

The Court finds that Plaintiff has not pled any affirmative defense that would preclude summary judgment in this cause.

The Court finds Defendants are entitled to summary judgment as a matter of law because

no contract was formed, and because the alleged contract does not satisfy the statute of frauds.

IT IS THEREFORE ORDERED that judgment is entered in favor of Defendants and

against Plaintiff on the counterclaim of declaratory judgment. The Court declares 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

IT IS FURTHER ORDERED that Defendants recover judgment against Plaintiff in the

sum of $16,143.75, (Sixteen Thousand One Hundred Forty-Three and 75/100 Dollars), as

attorney fees for the benefit of Peterson Law Group. Such Judgment, for which execution shall

issue, shall bear interest at the rate of 6% per annum, compounded annually from the date of this

judgment, until paid.

IT IS FURTHER ORDERED that Defendants recover judgment against Plaintiff in the

sum of $20,000.00, (Twenty Thousand and No/100 Dollars), as attorney fees for the benefit of

Peterson Law Group on intermediate appeal, with costs and expenses. Such Judgment, for which

execution shall issue, shall bear interest at the rate of 6% per annum, compounded annually from

the date of this judgment, until paid. This judgment of attorney fees on appeal is conditioned on

the pursuit by Plaintiff of an ultimately unsuccessful appeal.

IT IS FURTHER ORDERED that Defendants recover judgment against Plaintiff in the sum of $20,000.00, (Twenty Thousand and No/100 Dollars), as attorney fees for the benefit of

Peterson Law Group on appeal to the Texas Supreme Court, with costs and expenses. Such

Judgment, for which execution shall issue, shall bear interest at the rate of 6% per annum,

compounded annually from the date of this judgment, until paid. This judgment of attorney fees

on appeal is conditioned on the pursuit by Plaintiff of an ultimately unsuccessful appeal.

IT IS FURTHER ORDERED that Defendants recover costs of court incurred in the

course of this cause in the sum of $990.63, (Nine Hundred Ninety and 63/100 Dollars). Such

judgment, for which let execution issue, shall bear interest at the rate of 6%, compounded

annually from the date of this judgment, until paid.

IT IS FURTHER ORDERED that Defendants are entitled to enforce this judgment

through abstract, execution, and any other process.

This judgment finally disposes of all parties and all claims and is appealable.

Signed on .

JUDGE PRESIDING

Attorney for Defendants Burton Creek Development, Ltd., Burton Creek Management, LLC and Brazos Trace, LLC Peterson Law Group 1733 Briarcrest Drive, Suite 100 Bryan, Texas 77802 Tel. (979) 703-7014 Fax. (979) 703-7031 Email: rusty@brazoslawyers.com Robert G. Bailey Attorney for David Cottrell 3306 Sul Ross Houston, Texas 77098 Tel. 832.485.1338 Fax. 713.630.0017 Email: rbailey@robertbaileypc.com

4843-4557-3399, v. 1 Filed 3/17/2014 3:31:39 PM Marc Hamlin, District Clerk Brazos County, Texas Kayla Johnson

No. 1 3-000672-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 PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT

David Cottrell, Plaintiff, files this Response to Defendants’ Motion for Summary Judgment and Plaintiffs Cross Motion for Partial Summary Judgment as follows:

I. BACKGROUND Cottrell filed this suit to recover a $50,015.15 real estate commission from Burton Creek Development, Ltd. (and its general partner, Burton Creek Management, LLC) in connection with its

sale of real property to a purchaser procured by Cottrell. The property is located at the southwest

comer of East W.J. Bryan Parkway and Nash Street in Bryan. It has been developed as a Raceway gasoline station/convenience store. Raceway is name used by franchisees of RaceTrac Petroleum, Inc. By their Motion for Summary Judgment, Defendants seek judgment on their counterclaim for declaratory relief and on their affirmative defense of statute of frauds. Their motion does not

seek judgment on any of the other defenses raised in their answer.

By his cross motion, Cottrell seeks an interlocutory summary judgment against Burton Creek Development, Ltd. its general partner, Burton Creek Management, LLC, jointly and severally, for

$50,01 5. 15 in damages due to their breach of contract. His motion does not address the issue of his

reasonable and necessary attorney’s fees, which Cottrell will address in an evidentiary hearing to be

set after his Motion for Partial Summary Judgment is granted. RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT III. DEFENDANTS NOT ENTITLED TO DECLARATORY RELIEF BY COUNTERCLAIM Cottrell’s petition seeks a recovery from Defendants for breach of contract. Defendants have filed a counterclaim against Cottrell which seeks a judgment declaring (a) that the contract on which Cottrell has sued is not a contract, (b) that the contract does not satisfy the statute of frauds and (c)

that the contact does not identify the land to be conveyed with reasonable certainty.

A declaratory judgment is not available to settle a dispute already pending before a court. Riddick v. Quail Harbor Condo. Ass'n, 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,

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

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.

A. Y

Plaintiff s Cross-Motion should be denied and Defendant's Motion should be granted.

As sci forth below, even if all of Plaintiffs contentions are true. Defendant is :ruk!ed ic

v!i|V)m;:CV k!i i .) i;; AU' : • 1;> 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.

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

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

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

"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

"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-

DAVID COTTRELL IN THE DISTRICT COURT OF VS B3AZOS COUNTY, TEXAS

BURTON CREEK DEVELOPMENT. LTD. AND BURTON CREEK MANAGCMCST. LLC 27ÿ® JUDICIAL DISTRICT

PARTIAL SUMMARY JUDGMENT TT1S ORDERED THAT the Mode*) bi Summary Joriÿnoni Tiled harem hy Humor. Creek DevciCpcceol. Lid. and Burton CrrHt M*r*frn>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