                                                                            ACCEPTED
                                                                            15-00014-cv
                                                          SEVENTH COURT OF APPEALS
                                                                    AMARILLO, TEXAS
                                                                   5/6/2015 4:16:29 PM
                                                                      Vivian Long, Clerk


                  CAUSE NO. 07-15-00014-CV
____________________________________________________________
                                                     FILED IN
                                              7th COURT OF APPEALS
             IN THE SEVENTH COURT OF APPEALS AMARILLO, TEXAS
                      AMARILLO, TEXAS         5/6/2015 4:16:29 PM
____________________________________________________________
                                                   VIVIAN LONG
                                                      CLERK

             BURTON CREEK DEVELOPMENT, LTD.
            AND BURTON CREEK MANAGEMENT, LLC

                                    APPELLANTS

                               V.

                        DAVID COTTRELL

                                APPELLEE
____________________________________________________________

                  BRIEF OF THE APPELLANTS
____________________________________________________________


                              HEATH C. POOLE
                              HOELSCHER, LIPSEY, ELMORE &
                              POOLE, P.C.
                              1021 UNIVERSITY DRIVE
                              COLLEGE STATION, TEXAS 77840
                              979.846.4726 telephone
                              979.846.4725 facsimile
                              heath@hle.com

                              ATTORNEYS FOR APPELLANTS
                IDENTITY OF PARTIES AND COUNSEL

APPELLANTS: BURTON CREEK DEVELOPMENT, LTD. AND
            BURTON CREEK MANAGEMENT, LLC (“Burton”)


COUNSEL FOR APPELLANTS:

Heath C. Poole
Hoelscher, Lipsey, Elmore & Poole, P.C.
SBN No. 24027627
1021 University Drive
College Station, Texas 77840
979.846.4726 telephone
979.846.4725 facsimile
heath@hle.com

APPELLEE:       DAVID COTTRELL (“Cottrell”)


COUNSEL FOR APPELLEE:

Robert G. Bailey
Robert G. Bailey, P.C.
SBN No. 01536200
3306 Sul Ross
Houston, Texas 77098
832.485.1338 telephone
713.630.0017 facsimile
rbailey@robertbaileypc.com




                                   i
                            TABLE OF CONTENTS

Identity of Parties and Counsel                                              i

Table of Contents                                                            ii

Index of Authorities                                                         1

Statement of Case                                                            2

Statement of Facts                                                           3

Summary of Argument                                                          6

Argument and Authorities                                                     8

Issues Presented

      A.    The Trial court erred in denying Burton’s Motion for
            Summary Judgment.

      B.    The Trial court erred in granting Cottrell’s Cross-Motion for
            Partial Summary Judgment                                         9

Prayer                                                                      15

Certificate of Compliance                                                   16

Certificate of Service                                                      16

Appendix                                                                    17




                                      ii
                        INDEX OF AUTHORITIES

Cases/Statutes                                                     Page

Texas Real Estate Licensing Act                                       2

Texas Occupations Code § 1101.806(c)                                  2

Neary et al v. MIKOB Properties, Inc., 340 S.W.3d 578
(Tex. App.-Dallas 2011)                                               3

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)              7

Tex. Builders v. Keller, 928 S.W.2d 479 (Tex. 1996)                   9

Lathem v. Kruse, 290 S.W.3d 922 (Tex. App.-Dallas 2009, no pet.)      9

Hall v. Hard, 160 Tex. 565 (1960)                                    10

Frady v. May, 23 S.W.3d 558, 562
(Tex. App.—Fort Worth 2000, pet denied).                             11

Carmack v. Beltway Development Co., 701 S.W.2d 37, 40
(Tex. App.—Dallas 1985, no writ).                                    12

Landis v. W. H. Fuqua, Inc., 159 S.W.2d 228, 231
(Tex. App.—Amarillo 1942, writ ref’d)                                12

Exxon Corp. v. Breezevale, Ltd., 82 S.W.3d 429, 439
(Tex. App.—Dallas 2002, pet. denied)                                 13

Hairston v. Southern Methodist Univ., 2013 WL 1803549
(Tex. App.—Dallas 2013, pet. denied)                                 13

Magcobar N. American, v. Grasso Oilfield Svcs.,
736 S.W.2d 787, 796 (Tex. App-Corpus Christi 1987, pet. denied)      14



                                    1
TO THE HONORABLE COURT OF APPEALS:

                           STATEMENT OF CASE

      Cottrell contends that an email (“the Email”), sent by a representative

of Burton, wherein possible buyers, potential commissions, uncertain sales

prices, and ambiguously described lands, are discussed, constitutes a

“contract” that satisfies the applicable statute of frauds requirement, as

contained in the Real Estate Dealers License Act (“RELA”) as codified in the

Texas Occupations Code §1101.806(c).

      Additionally, Cottrell contends that even if the “contract” does not satisfy

the applicable statute of frauds, that he should be entitled to a commission

based on the doctrine of partial performance, as an exception to the statute

of frauds.

      Burton contends that the Email only contemplated the potential sale of

their lands, referred to as apartment land, and is representative of nothing

more than possible deal points. More importantly, the Email is not a contract,

was never intended by either party to be a contract, and most definitely does

not satisfy the statute of frauds as required by the RELA and the Texas

Occupations Code §1101.806 (c).




                                        2
      Texas law requires that in order to recover a commission from the sale

of real estate, the following must be evidenced in writing:

      1.    The agreement must be in writing and signed by the person
            charged with paying the commission;

      2.    The writing must contain a definite commission;

      3.    The writing must identify the broker to whom the commission is to
            be paid; and

      4.    The writing must either itself or by reference to some other
            existing writing, identify with reasonable certainty the land to be
            conveyed. Neary et al v. MIKOB Properties, Inc., 340 S.W.3d
            578 (Tex. App.-Dallas 2011).

      The Email is not a contract. The Email was not a sufficient writing,

compliant with Texas law, in order to recover a real estate commission, nor

does the doctrine of partial performance apply to this case, as an exception

to the statute of frauds, to create an obligation for Burton to pay Cottrell a real

estate commission on the sale of its property.

                           STATEMENT OF FACTS

      Burton were and currently are, the owners of several parcels of real

property located in the City of Bryan, Texas, (collectively referred to herein as

“the Property”) in the general geographical vicinity of East William Joel Bryan

Parkway, East Villa Maria Road, Nash Street, and Broadmoor Drive.



                                        3
      Prior to December 14, 2011, Burton had been in discussions regarding

the possible sale of one (1) parcel of land, located within the Property, herein

referred to as (“the Apartment Property”), to a developer for the purpose of

building multi-family residential apartments.      During the course of the

discussions regarding the potential sale of the Apartment Property, it was

contemplated that Cottrell, a Texas licensed real estate broker, would be

authorized to bring prospective buyers of the Apartment Property to Burton

for its consideration.

      In furtherance of its contemplations regarding the role of Cottrell in

locating prospective buyers for the Apartment Property, Burton sent the Email

to Cottrell which contemplated the payment of a potential real estate

commission upon the sale of the Apartment Property. The language of the

Email states that a real estate commission would apply to the sale, if Cottrell

brought a prospective buyer that could close on a sale of the Apartment

Property, for a sales price in excess of $7.45 per square foot.

      The Email recites that a potential commission could be earned.

However, it does not specifically describe the Property that any such

contemplated potential commission, if all conditions precedent were met,

might apply. (See Appendix #1)


                                       4
      Ultimately, Burton entered into a written contract and later sold a parcel

of land, located within the Property, to Del Lago Ventures, Inc. Specifically,

that parcel of land was located at the corner of East William Joel Bryan

Parkway and Nash Street. The parcel was purchased by Del Lago Ventures,

Inc. for the sum of $850,000.00. Del Lago Ventures, Inc. or their assigns

subsequently built a “RaceTrac” convenience store and gas station on the

property, and is herein referred to as the “RaceTrac Property”.

      Subsequent to the closing on the sale of the RaceTrac Property, Cottrell

made demand on Burton for a commission of $50,015.15, based only on the

sale of the RaceTrac Property. Cottrell claimed that based only on the Email,

he was contractually owed a six percent (6%) commission on the sale

proceeds. However, Cottrell was never hired to market that specific parcel of

land and never performed any work attributable to the sale of that property.

      On March 11, 2013, Cottrell filed suit against Burton in Cause No. 13-

000672-CV-272. (See Appendix #2)

      On April 10, 2013, Burton filed their Original Answer and Counterclaim

against Cottrell. (See Appendix #3)

      On January 24, 2014, after conducting considerable discovery, Burton

filed their Motion For Summary Judgment. (See Appendix #4)


                                       5
     On March 17, 2014, Cottrell filed his Cross-Motion for Partial Summary

Judgment. (See Appendix #5)

     On April 22, 2014, Burton filed their Response to Plaintiff’s Cross-

Motion for Partial Summary Judgment. (See Appendix #6)

     On April 29, 2014, Burton’s and Cottrell’s motions for summary

judgment were heard by the Trial Court.

     On June 26, 2014, the Trial Court denied Burton’s Motion for Summary

Judgment and granted Cottrell’s Cross-Motion for Partial Summary Judgment.

The Trial Court awarded Cottrell $50,015.15 in damages. (See Appendix #7)

     On November 17, 2014, after conducting a bench trial on the matter of

attorney’s fees, the Trial Court, by Final Judgment, awarded Cottrell

$23,150.00 in attorney’s fees. (See Appendix #8)

     On December 16, 2014, Burton filed their Notice of Appeal.

                       SUMMARY OF ARGUMENT

     The Trial Court erred in ruling that Cottrell was entitled to a real estate

commission on the sale of the RaceTrac property.

     Burton were entitled to summary judgment, because the writing on

which Cottrell contends he is owed a commission did not satisfy the statute

of frauds, as required by the RELA and the Texas Occupations Code


                                      6
§1101.806( c). Further, Cottrell was not entitled to a commission based on

partial performance, as an exception to the statute of frauds.            Burton

demonstrated in their Motion for Summary Judgment that Cottrell’s claimed

commission did not strictly comply with the RELA by failing to satisfy the

statute of frauds, in that it did not either itself, or by reference to some other

existing writing, identify with reasonable certainty the land to be conveyed.

The only reference to the property, as stated in the Email is “our property

located at WJ Bryan, Villa Maria and Nash.” This identification of the property

is insufficient. Inasmuch as Burton owned several tracts of land in the area

of WJ Bryan, Villa Maria and Nash streets, intended for different uses, the

language used in the email does not describe the property with reasonable

certainty and as such failed to strictly comply with the RELA.

      In order for the Trial Court to award Cottrell a commission, Cottrell had

the burden to demonstrate that no genuine issues of material fact existed as

to the required elements of compliance with Texas law regarding the payment

of real estate commissions and that he was entitled to judgment as a matter

of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985). In order

to defeat Cottrell’s Motion for Partial Summary Judgment, Burton were

required to present sufficient evidence to raise a genuine issue of fact on


                                        7
each challenged element of their claims. Burton provided the Trial Court

sufficient evidence that raised genuine issues of material fact regarding the

elements required to be proven by Cottrell.

                     ARGUMENT AND AUTHORITIES

      A.    The Trial court erred in denying Burton’s Motion for
            Summary Judgment.

      B.    The Trial court erred in granting Cottrell’s Cross-Motion for
            Partial Summary Judgment.

      The trial court erred in denying Burton’s Motion for Summary Judgment

and awarding Cottrell a real estate commission on the sale of the RaceTrac

property. Burton proved as a matter of law that no genuine issue of material

fact existed regarding its affirmative defense of the statute of frauds as

applied to Cottrell’s claim. Burton were required to prove that the Email, the

alleged contract upon which Cottrell’s claims are based, did not either in the

Email itself or by reference to another writing then in existence, identify with

reasonable certainty the land to be conveyed. Burton did prove as a matter

of law that no genuine issue of material fact existed regarding its affirmative

defense of the statute of frauds as to Cottrell’s claim.

      Burton were entitled to summary judgment, because the writing on

which Cottrell contends he is owed a real estate commission did not satisfy


                                       8
the statute of frauds, as required by RELA and the Texas Occupations Code

§1101.806( c) and Cottrell was not entitled to a commission based on partial

performance, as an exception to the statute of frauds. Burton demonstrated

in their Motion for Summary Judgment that Cottrell’s claimed commission did

not strictly comply with RELA and failed to satisfy the statute of frauds, in that

it did not either itself, or by reference to some other existing writing, identify

with reasonable certainty the land to be conveyed. The only reference to the

property, as stated in the email is “our property located at WJ Bryan, Villa

Maria and Nash.” This identification of the property is insufficient. As stated

in Tex. Builders v. Keller, 928 S.W.2d 479 (Tex. 1996), “while a metes and

bounds description is not necessary, the writing must furnish the data to

identify the property with reasonable certainty.” In Lathem v. Kruse, 290

S.W.3d 922 (Tex. App.-Dallas 2009, no pet.), the court explained “strict

compliance” with RELA is required. In Lathem, the issue of identification of

the property with reasonable certainty was discussed and the facts of that

case stated that the contemplated deal sheet described the property as “those

particular apartment communities commonly known as Harbortree, Balboa,

Capital Estates, Wisteria Gardens, Oaks of Brittany, Kensington Club I&II,

Stonehaven at the Galleria and Fondren Court.” No other location or address


                                        9
was given. Further, just as in the instant case, no reference is made to any

other existing writing that further describes or identifies the property. In

Lathem, the court questioned whether or not this type of description complies

with “reasonable certainty”. Inasmuch as Burton owned several tracts of land

in the geographic area of WJ Bryan, Villa Maria and Nash streets, intended

for different uses, the language used in the email does not describe the

property with reasonable certainty and as such failed to strictly comply with

the RELA as it pertained to the RaceTrac property. The RaceTrac property

is several blocks from Villia Maria Road, in fact.

      The RELA, is an exercise of the police power of the State of Texas to

regulate a private business which affects the public interest. Hall v. Hard, 160

Tex. 565 (1960). As part of that regulation, the Legislature has seen fit to

regulate real estate licensees by codifying a statute of frauds, in order to

prevent fraud in real estate commission agreements. Our courts require strict

compliance with the terms of the RELA, if a broker is to use the courts for

recovery of his fees or charges for his services. Id., at 572. Thus, Cottrell,

in order to collect his alleged fees, must strictly comply with the provisions of

RELA, including the required statute of frauds.

      The validity of a writing is determined at the time the buyer is procured.


                                       10
Frady v. May, 23 S.W.3d 558, 562 (Tex. App.—Fort Worth 2000, pet denied).

The writing upon which Cottrell’s claim is based is dated December 14, 2011.

Cottrell testified that he procured the buyer in 2009 or 2010. See Appendix

# 6. Cottrell could not have relied on the alleged agreement at a time when

it did not exist. Also, had Cottrell procured a buyer for the RaceTrac property,

prior to the existence of the Email, why did he not secure additional

assurances and/or an actual contract confirming the right to a future sale of

and real estate commission for the RaceTrac property. Only one conclusion

can be drawn from the facts: the parties never contemplated or agreed

Cottrell was to receive a real estate commission on the RaceTrac property.

      Further, Cottrell, undoubtedly understanding that he failed to strictly

comply with the RELA, resorted to attempting to rely on the theory of partial

performance in an effort to circumvent the strict compliance standard of the

statute of frauds. However, there are certain requirements which must be

proven in order to recover under that theory as well. As with the statute of

frauds, strict compliance with these requirements is also necessary to prevent

the exception from destroying the codified statute of frauds requirements. In

order to correctly apply the partial performance exception to the statute of

frauds, there must be strong evidence establishing the existence of an


                                      11
agreement and its terms. Carmack v. Beltway Development Co., 701 S.W.2d

37, 40 (Tex. App.—Dallas 1985, no writ). In the instant case, there is no

strong evidence that established the existence of any agreement and or its

terms. The evidence in this case shows just the opposite. The Email, that

Cottrell claims is a contract, only discusses the Apartment land. However, as

evidenced herein even that description does not adequately identify the

property. The Email relied on by Cottrell fails to set forth the essential terms

of the alleged contract. In Landis v. W. H. Fuqua, Inc., 159 S.W.2d 228, 231

(Tex. App.—Amarillo 1942, writ ref’d), a broker’s full performance alone is not

sufficient to take a commission agreement out of the statute of frauds,

because such a construction would nullify the statute. Additionally, a party

acting in reliance on the alleged contract must suffer a substantial detriment

for which he has no adequate remedy. Exxon Corp. v. Breezevale, Ltd., 82

S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied). Here, Cottrell did not

demonstrate that it suffered any detriment. Further, there must be affirmative

corroboration by both parties of any missing contested terms. Lathem v.

Kruse, 290 S.W.3d 922, 928 (Tex. App.—Dallas 2009, no pet.). The evidence

in the instant case does not corroborate any of the missing terms. Instead it

is evident that the offer of a commission contemplated the sale of the


                                      12
Apartment land, and not the RaceTrac property. The case law is clear that

if both parties do not affirmatively corroborate the same missing term(s), then

there can be no contract or agreement. Partial performance, if any, must be

unequivocably referable to the agreement and corroborative of the fact that

a contract was actually made. Hairston v. Southern Methodist Univ., 2013

WL 1803549 (Tex. App.—Dallas 2013, pet. denied). Partial performance

must be such as could have been done with no other design than to fulfill the

particular agreement sought to be enforced. Without such precision, the acts

of performance do not tend to prove the existence of the parol agreement

sought to be enforced. Here, the performance, if any, of Cottrell could have

been done with a design to make the Apartment land (or another part of the

development) more attractive to a developer, and thus was not unequivocably

referable to the alleged agreement, nor was it corroborative of the fact that the

parties intended to enter a contract for the RaceTrac property. “The relevant

issue is not whether there is evidence that the performance could be referable

to the contract which a party is trying to enforce; rather, it is whether there is

evidence that the performance is solely referable to the contract.” citing

Breezevale, 82 S.W.3d at 439-40.

      Finally, even if partial performance could be proven, only reliance


                                       13
damages are available. Lost profits or other contractual damages are not

available. Magcobar N. American, v. Grasso Oilfield Svcs., 736 S.W.2d 787,

796 (Tex. App-Corpus Christi 1987, pet. denied). Cottrell provided no proof

to the Court that it suffered any reliance damages, only that he is entitled to

the full bargain of the alleged contract, a full six percent (6%) commission for

the sale of the RaceTrac property. The case law is clear that a party is not

entitled to lost profits, i.e. the full commission, and as such, Cottrell is not

entitled to the commission based on his claimed partial performance theory.

      The trial court erred in granting Cottrell’s Motion for Partial Summary

Judgment. Cottrell was required to prove as a matter of law, that no genuine

issues of material fact existed relative to each element of the RELA’s statute

of frauds, and the elements of partial performance. In the event this Court

does not believe that Burton proved its affirmative defense as a matter of law

and is not entitled to judgment, this case should be remanded back to the

Trial Court because the evidence is clear that Cottrell failed to carry his

burden to prove all elements of his cause(s) of action as a matter of law and

that no genuine issue of material facts exist. This Court is required to review

the grant of a summary judgment de novo. Gen. Mills Rests., Inc. v. Texas

Wings, Inc., 12 S.W.3d 827 (Tex.App.-Dallas 2000, no pet.). To defeat


                                      14
Cottrell’s Motion for Partial Summary Judgment, Burton were required to

present sufficient evidence to raise a genuine issue of material fact on each

challenged element of Cottrell’s claims. Burton did that in this case and as

such the Trial Court erred in granting Cottrell’s summary judgment motion.

                                   PRAYER

     Burton pray that this Court of Appeals reverse and render regarding the

decision of the Trial Court that Burton owe a real estate commission in the

amount of $50,015.15 and attorney’s fees of $23,150.00. Alternatively,

Burton pray that this Court of Appeals reverse and remand the decision of the

Trial Court and send this case back to the Trial Court so that all issues may

be ultimately determined by a fact finder.

                                    Respectfully submitted,

                                    HOELSCHER, LIPSEY, ELMORE & POOLE, P.C.



                             By:    _____/s/ Heath C. Poole _____
                                    HEATH C. POOLE
                                    SBN No. 24027627
                                    1021 UNIVERSITY DRIVE
                                    COLLEGE STATION, TEXAS 77840
                                    TELEPHONE: 979-846-4726
                                    FACSIMILE: 979-846-4725

                                    ATTORNEYS FOR APPELLANTS


                                     15
                       CERTIFICATE OF COMPLIANCE

        I hereby certify that this document contains 3,527 words. I have relied

upon the word count of my computer program being used to prepare the

document. This document further complies in that it is prepared in 14-point

font.


                                     _____/s/ Heath C. Poole _____
                                     HEATH C. POOLE


                         CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Brief of

Appellants has been delivered to the attorney of record for Cottrell, Mr. Robert

G. Bailey, Robert G. Bailey, P.C., 3306 Sul Ross, Houston, Texas 77098.

                                     _____/s/ Heath C. Poole _____
                                     HEATH C. POOLE




                                       16
                                  APPENDIX

1.   Email that is the basis of the litigation;

2.   Plaintiff’s Original Petition;

3.   Defendant’s Original Answer and Counterclaim;

4.   Defendant’s Motion for Summary Judgment;

5.   Plaintiff’s Cross-Motion for Partial Summary Judgment;

6.   Defendants’ Response to Plaintiff’s Cross Motion for Partial Summary
     Judgment;

7.   Order Granting Plaintiff’s Cross-Motion for Partial Summary Judgment;
     and

8.   Final Judgment.




                                       17
David Cottrell
From:                 Paul Levant)a (pauitfibrazoatmce.com)
Sant:                 Wednesday, December 14, 2011 10:35 PM
To:                   'Pool Levant ia’; David Cottrell
Cc:                   jennyfijennyblack.com; 'neltfifinerhomosonline.com’; 'Bill Kotlen*
Subject:              RE: Land (or Sale Neeh 8nd WJBryan

David,

As a clarification, the 6% commission will cover your commission of %3 and a %i commission to the buyer agent that Is
bringing the group out of Dallas. Please confirm that this Is correct so there Is no misunderstanding.

Thanks,
Paul

From: Paul Leventls fmallto;paul]@brazostrace.coml
Sent: Wednesday, December 14, 2011 7:22 AM
To: 'David Cottrell'
Cc: 1<jenny(3Hennvb1ack.com>1: ’nell@flnerhomesonllne.com’; ’Bill Kotfan’
Subject: Land for Sate Nash and WJBryan

David,

Per our conversation yesterday, Burton Creek Development will pay you a %6 commission for any buyer that you bring
to the table who closes on our property located at WJ Bryan, Villa Marla and Nash. Please note, we have a group who Is
willing to buy our apartment land at $7/sf, therefore, the amount for your buyer would need to be $7.45/sf to cover
your 6% commission.

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

Thanks,

Paul




                                                                      l
                                                                                                 Filed
                                                                                                 13 March 11 P3:21
                                                                                                 Marc Hamlin
                                                                                                 District Cleric
                                                                                                 Brazos County
                                                                                                 Krystal Hawk
                                   No.

DAVID COTTRELL                                    §                IN THE DISTRICT COURT OF
                                                  §
VS.                                               §                   BRAZOS COUNTY, TEXAS
                                                  §
BURTON CREEK DEVELOPMENT, LTD.,                   §
BURTON CREEK MANAGEMENT, LLC                      §
AND BRAZOS TRACE, LLC                             §                          JUDICIAL DISTRICT

                         PLAINTIFF’S ORIGINAL PETITION,
                          REQUEST FOR DISCLOSURE AND
                     REQUEST FOR PRODUCTION OF DOCUMENTS

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, David Cottrell, Plaintiff, complaining of Burton Creek Development, Ltd.,

Burton Creek Management, LLC and Brazos Trace, LLC, Defendants, and as grounds therefor would

show the Court as follows:

                                                  I.

       1 . 1 Discovery is intended to be conducted under Level 1 of Rule 190, Texas Rules of Civil

Procedure.

                                                 II.

       2. 1 David Cottrell (“Cottrell”), Plaintiff, is an individual residing in Harris County, Texas.

       2.2 Burton Creek Development, Ltd. (“Development”), a Defendant, is a limited partnership

and has its principal place of business in Brazos County, Texas. It may be served with process by

serving its registered agent, Paul J. Leventis, at 1 722 Broadmoor Dr., Suite 212, Bryan, Texas 77802.

       2.3 Burton Creek Management, LLC (“Management”), a Defendant, is a limited liability

company and has its principal place of business in Brazos County, Texas. It is the general partner

of Development. It may be served with process by serving its registered agent, Paul J. Leventis, at

1722 Broadmoor Dr., Suite 212, Bryan, Texas 77802.
       2.4 Brazos Trace, LLC (“Brazos Trace”), a Defendant, is a limited liability company and has

its principal place of business in Brazos County, Texas. It may be served with process by serving

its registered agent, Paul J. Leventis, at 1722 Broadmoor Dr., Suite 212, Bryan, Texas 77802.

                                                  III.

       3.1 Venue is proper in Brazos County, Texas, because Brazos County is the county in which

all or a substantial part of the events or omissions giving rise to the claims asserted herein occurred.

        3.2 Venue is proper in Brazos County, Texas as to each Defendant, because Brazos County

is the county in which each Defendant has its principal office in this state and each Defendant is not

a natural person.

        3.3 Venue is proper in Brazos County, Texas, as to all of the Defendants, because (a) all of

the claims asserted herein arise out of the same transaction, occurrence, or series of transactions or

occurrences and (b) Cottrell has established proper venue against one or more of the Defendants.

                                                  IV.

        4.1 Cottrell is a real estate broker licensed by and in good standing with the Texas Real

Estate Commission.

        4.2 Brazos Trace entered into a written contract (the “Contract”) in writing with Cottrell, by

which Cottrell was engaged to assist in selling a tract of land (the “Property”) owned by

Development and located in Bryan, Texas. A true and correct copy of the Contract is attached hereto

as Exhibit A. A detailed legal description and partial plat of a survey of the Property are set forth

in Exhibit B, attached hereto. Under the Contract, it was agreed that Cottrell would be paid a

commission of 6% if he brokered a sale of the Property.

        4.3 Cottrell was contacted by representatives of RaceTrac Petroleum, Inc., who expressed


                                                   2
interest in purchasing the Property. Cottrell introduced them to Defendants. Development entered

into a contract to sell the Property to Del Lago Ventures, Inc. or some other affiliate of RaceTrac

Petroleum, Inc. Development and then sold the Property to that entity.

        4.4 Cottrell has fully performed his obligations under the Contract by bringing a buyer,

RaceTrac or an affiliate thereof, of the Property to Development. Development knowingly accepted

Cottrell’s services by selling the Property to RaceTrac or its affiliate. It received the benefits of the

sale that had been arranged by Cottrell, namely, the sales price.

        4.5 Cottrell has made demand on Defendants for payment of his commission, believed to

be $42,000.00, but they have failed and refused to do so.

                                                   V.

        5.1 Brazos Trace made the Contract with Cottrell as agent for Development. In doing so it

acted within the course and scope of the authority granted to it by Development, whether actual or

apparent. Development has breached the Contract made on its behalf by Brazos Trace by failing to

pay Cottrell the 6% commission that he earned for enabling Development to sell the Property to

RaceTrac. As a result of Development’s breach of the Contract, Cottrell has been damaged the sum

of $42,000.00, for which Cottrell now sues Development.

        5.2 Management is the general partner of Development and, as such, is jointly and severally

liable with it for Development’s breach of the Contract.

                                                   VI.

        6. 1 In the alternative, if Brazos Trace exceeded its authority, actual or apparent, by entering

into the Contract on behalf of Development, then Brazos Trace is liable to Cottrell for its breach of

the Contract, for which Cottrell now sues Brazos Trace.


                                                    3
                                                VII.

       7.1 All conditions precedent to the right of Cottrell to recover the relief requested herein

have occurred or have been satisfied.

                                                VIII.

       8.1 Cottrell is entitled to recover a reasonable attorney’s fee pursuant to Ch. 38, Texas Civil

Practice and Remedies Code.

                                          IX.
                                REQUEST FOR DISCLOSURE

       Pursuant to Rule 194, each Defendant is requested to disclose, within 50 days of service of

this request, the following information or materials:

       (a)     the correct names of the parties to the lawsuit;

       (b)     the name, address, and telephone number of any potential parties;

       (c)     the legal theories and, in general, the factual bases of the responding party’s claims
               or defenses (the responding party need not marshal all evidence that may be offered
               at trial);

       (d)     the amount and any method of calculating economic damages;

       (e)     the name, address, and telephone number of persons having knowledge of relevant
               facts, and a brief statement of each identified person’s connection with the case;

       (f)     for any testifying expert:

               (1 )    the expert’s name, address, and telephone number;

               (2)     the subject matter on which the expert will testify;

               (3)      the general substance of the expert’s mental impressions and opinions and
                        a brief summary of the basis for them, or if the expert is not retained by,
                        employed by, or otherwise subject to the control of the responding party,
                        documents reflecting such information;



                                                  4
              (4)      if the expert is retained by, employed by, or otherwise subject to the control
                       of the responding party:

                       (A)    all documents, tangible things, reports, models, or data compilations
                              that have been provided to, reviewed by, or prepared by or for the
                              expert in anticipation of the expert’s testimony; and

                       (B)    the expert’s current resume and bibliography;

       (g)     any indemnity and insuring agreements described in Rule 192.3(1);

       (h)     any settlement agreements described in Rule 192.3(g);

       (i)     any witness statements described in Rule 192.3(h); and

       (1)     the name, address, and telephone number of any person who may be designated as
               a responsible third party.

                                     X.
                    REQUEST FOR PRODUCTION OF DOCUMENTS

       Each Defendant is requested to respond to the following Request for Production within the

time and in the manner required by Rule 196, Tex. R. Civ. Pro., and is requested to produce the

requested documents at 10:00 a.m. on the 50lh day after service, which production shall be at the

offices of Robert G. Bailey, P.C., 3306 Sul Ross, Houston, Texas 77098 or at such other time and

place as may be mutually agreed in writing by the parties:

       1 . All statements which are discoverable pursuant to Rule 192.3(h), Tex. R. Civ. Pro.

       RESPONSE:

       2. All documents, tangible things, reports, models, or data compilations that have been
provided to, or reviewed by, or prepared by or for all testifying experts and all consulting experts
whose opinions, mental impressions or work product were reviewed by a testifying expert and the
expert’s current resume and bibliography.

       RESPONSE:
        3. The contracts or other documents setting forth the scope of engagement of each testifying
expert and all consulting experts whose opinions, mental impressions or work product were reviewed


                                                 5
by a testifying expert and all invoices you received from each such experts.

       RESPONSE:

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

        RESPONSE:

       5. All written communications, including emails, and including enclosures and attachments,
between you and the other parties to this suit regarding your efforts to sell the Property described in
Exhibit B, attached hereto..

        RESPONSE:

        WHEREFORE, PREMISES CONSIDERED, Cottrell prays that the Defenants be cited to

appear and answer herein and, upon final trial hereof, Cottrell have and recover judgment against

Development and Management, jointly and severally, for actual damages of $42,000.00, attorney’s

fees, pre- and post-judgment interest and costs of suit. In the alternative, Cottrell prays for judgment

against Brazos Trace for actual damages of $42,000.00, attorney’s fees, pre- and post-judgment

interest and costs of suit. Cottrell prays for such other and further relief to which he may be justly

entitled.

                                                        Respectfully submitted,

                                                        ROBERT G. BAILEY, P.C.

                                                        /S/ ROBERT G. BAILEY

                                                        By:
                                                              _
                                                              Robert G. Bailey
                                                              State Bar No. 01536200
                                                              3306 Sul Ross
                                                              Houston, Texas 77098
                                                              Land: 832-485-1338
                                                              Cell: 713-819-5534
                                                              Fax: 713-630-0017
                                                              Email: rbailey@robertbaileypc.com

                                                        ATTORNEY FOR PLAINTIFF

                                                   6
David Cottrell

From:                Paul Leventis [paull@brazostrace.com]
                     Wednesday, December 14, 2011 10:35 PM
                     'Paul Leventk1; David Cottrell
                     jenny@jennyblack.com; ’neHgfinerhomesonline.com'; 'Bill Kotlan’
Subject:             RE: Land for Sale Nash and WJBryan


David,

As a clarification, the 6% commission will cover your commission of %3 and a %3 commission to the buyer agent that is
bringing the group out of Dallas. Please confirm that this Is correct so there is no misunderstanding.

Thanks,
Paul

From: Paul Leventis f mdllto:pau)l@brazostrace.com1
Sent: Wednesday, December 14, 2011 7:22 AM
To: 'David Cottrell'
Cc: ,<tennv@iennyblack.com>': ’neil@flnerhomesonline.com'; 'Bill Kotlan'
Subject: Land for Sate Nash and WJBryan

David,

Per our conversation yesterday, Burton Creek Development will pay you a %6 commission for any buyer that you bring
to the table who closes on our property located at WJ Bryan, Villa Maria and Nash. Please note, we have a group who is
willing to buy our apartment land at $7/sf, therefore, the amount for your buyer would need to be $7.45/sf to cover
your 6% commission.

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

Thanks,

Paul




                                                EXHIBIT


                                                                   1
                                   Legal Description of Contract Property


Seller:                            Brazos Trace, LLC

Purchaser:                         Del Lago Ventures, Inc.

Contract Property location:        SWC William J Bryan Pkwy & Nash Road
                                   Bryan, TX


LEGAL DESCRIPTION:
A PARCEL OF LAND SITUATED IN THE CITY OF BRYAN, TEXAS. MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY OF NASH DRIVE AND THE SOUTHERLY RIGHT OF
WAY OF E WILLIAM J BRYAN PARKWAY; THENCE CONTINUE ALONG SAID SOUTHERLY RIGHT OF WAY S Ba'IS'AS” W A
OISTANCE OF 40.18’ TO A POINT; THENCE S 82’38’2r W A DISTANCE OF 202.15’ TO A POINT; THENCE ALONG A
CURVE YO THE RIGHT HAVING AN ARC LENGTH OF 21.81'. A RADIUS OF 766.20’, SUBTENDEO BY A CHORD BEARING
AND DISTANCE OF S 83’03’35" W, 21.81’ TO A POINT; THENCE DEPARTING SAID SOUTHERLY RIGHT OF WAY S 07'21’39”
E A DISTANCE OF 259.67’ TO A POINT; THENCE N 82’38’2r E A DISTANCE OF 282.69’ TO A POINT ON THE WESTERLY
RIGHT OF WAY OF NASH DRIVE; THENCE ALONG SAID WESTERLY RIGHT OF WAY FOLLOWING A CURVE TO THE LEFT
HAVING AN ARC LENGTH OF 117.36’, A RADIUS OF 535.00’, SUBTENDED BY A CHORD BEARING AND DISTANCE OF N
01’22‘44‘‘ W. 117.13’ TO A POINT; THENCE N OTÿAS' W A OISTANCE OF 113.39’ TO A POINT; THENCE N 52’39’48" W
A DISTANCE OF 42.43’ TO THE POINT OF BEGINNING. CONTAINING 77,577 SQUARE FEET OR 1.781 ACRES MORE OR
LESS.




                              NAfltUÿ   SFVYAN PA*"*
                                                20J-*




                                                                                                     z
          1
          1
                                                                                                     %<
                                                                                                      m



                                                PROPERTY




                                                                                                 2


                                 EXHIBIT B                                                       A
                                                                                                I1
                                                               CIVIL CASE INFORMATION SHEET
           CAUSE NUMBER (FOR CLERK USE ONLY)-.              \ "ÿ-QP \P                           ~C_            COURT (FOR CLERK USE ONLY):

              STYLED      David Cottrell vs. Burton Creek Development, Ltd., et al.
                                 (e.g., John Smith v. All American Insurance Co; In re Mary Ann Jones; In the Matter of the Estate of George Jackson)

A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new civil, family law, probate, or mental
health case or when a post-judgment petition for modification or motion for enforcement is filed in a family law case. The information should be the best available at
the time of filing. This sheet, approved by the Texas Judicial Council, is intended to collect information that will be used for statistical purposes only. It neither replaces
nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or
supplementation, and it is not admissible at trial. __
1. Contact information for person completing case information sheet:                  Names of parties in case:                                             or entity completing sheet is;
                                                                                                                                                  0Attorney for Plaintiff/Petitioner
Name:                                      Email:                                     PlaintifT(s)/Petitioner(s):                                 □Pro Se Plaintiff/Petitioner
Robert G. Bailey rbailey@robertbaileypc.com David Cottrell                                                                                        □Title IV-D Agency
                                                                                                                                                  □Other:
Address:                                   Telephone:
3306 Sul Ross                              832-485-1338                                                                                           Additional Parties in Child Support Case:

                                                                                      Defendant(s)/Respondent($):                                 Custodial Parent:
City /State/Zip:                           Fax:
                                                                                      Burton Creek DevelopmentrLÿh   -
 Houston, TX 77098                         713-630-0017
                                                                                      Burton Creek Management??cCt:??odial Parent
Signature:                                 State Bar No:
                                                                                      Brazos Trace, LLC
Is/ ROBERT G. BAILEY 01536200                                                                                  Presumed Father:
                                                                                      [Attach additional page as necessary to list all parties]

2. Indicate case type, or identify the most Important issue In the case (select only 1):
                                                    Civil                                                                                             Family Law

          Contract                   _      Injury or Damage                 _       Real Property
                                                                             □Eminent Domain/
                                                                                                                           Marriage Relationship
                                                                                                                         □Annulment
                                                                                                                                                              Post-judgment Actions
                                                                                                                                                               A      (non-TItle IV-D)
                                                                                                                                                              □Enforcement
                                                                                                                                                              □Modification—Other
Debt/Contract                        GAssaulL/Battery
     §Consumer/DTPA
       Debt/Contract
     □Fraud/MDebt/Contract:
                                     □Construction
                                     □Defamation
                                     Malpractice
                                                                                 Condemnation
                                                                             □Partition
                                                                             □Quiet Title
                                                                             □Trespass to Try Title
                                                                                                                         □Declare Marriage Void
                                                                                                                          Divorce
                                                                                                                             □With Children
                                                                                                                             □No Children
                                                                                                                                                              □Modification
                                                                                                                                                                             _   —
                                                                                                                                                                                 Custody

                                                                                                                                                                         Title IV-P
     □Other                              □Accounting                                                                                                          □Enforcement/Modification
                                       □Legal                                □Other Property:                                                                 Q Paternity

                    —                  □Medical                                                                                                               □Reciprocals (UIFSA)
Foreclosure
  □Home Equity Expedited               □Other Professional                                                                                                    □Support Order
  □Other Foreclosure                       Liability:
□Franchise                                                                        Related to Criminal
□insurance                           □Motor Vehicle Accident                            Matters                                Other Family Law                Parent-Child Relationship
□ Landlord/Tenant
□Non-Competition
                                     □Premises
                                     Product liability
                                                                             □Expunction
                                                                             □Judgment Nisi
                                                                                                                          □Enforce Foreign
                                                                                                                               Judgment
                                                                                                                                                              □Adoption/Adoption with
                                                                                                                                                                 Termination
□Partnership                           □Asbestos/Silica                      □Non-Disclosure                              □Habeas Corpus                      □Child Protection
                                                                             □Seizure/Forfeiture
□Other Contract:                       □Other Product Liability
                                           List Product:                     □Writ of Habeas Corpus
                                                                                 Pre-indictment
                                                                                                               —          □Name Change
                                                                                                                          □Protective Order
                                                                                                                          □Removal of Disabilities
                                                                                                                                                              □Child Support
                                                                                                                                                              □Custody or Visitation
                                                                                                                                                              □Gestational Parenting
                                     □Other Injury or Damage:                □Other;                                           of Minority                    □Grandparent Access
                                                                                                                          □Other:                             QParentage/Patemity
                                                                                                                                                              □Termination of Parental
                                                                                                                                                                   Rights
           Employment                                              Other Civil
                                                                                                                                                              □Other Parent-Child:
□Discrimination                       □Administrative Appeal                 □Lawyer Discipline
□Retaliation                          □Antitrust/Unfair                      □Perpetuate Testimony
□Termination                              Competition                        □Securities/Stock
□Workers’ Compensation
□Other Employment:
                                      □Code Violations
                                      □Foreign Judgment                                  _
                                                                             □Tortious Interference
                                                                             □Other:
                                      □intellectual Property
        _ Tax                                                                                                                   _
                                                                                                                                —
                                                                                                Probate & Mental Health
 □Tax Appraisal
 .




                                                                                                                  □Guardianship Adult
                                                                                                                                —
                                      Probate/Wills/Intestate Administration
 □Tax Delinquency                       □Dependent Administration                                                 □Guardianship Minor
 □Other Tax                             □independent Administration
                                        □Other Estate Proceedings
                                                                                                                  □Mental Health
                                                                                                                  □Other:       _
3. Indicate procedure or remedy, If applicable (may select more than 1): ;  :
    [Appeal from Municipal or Justice Court            □Declaratory Judgment                                                          □Prejudgment Remedy
 □Arbitration-related                                         □Garnishment                                                            □Protective Order
 □Attachment                                                  □interpleader                                                           □Receiver
 □Bill of Review                                              □License                                                                □Sequestration
 □Certiorari                                                  □Mandamus                                                               □Temporary Restraining Order/Inj unction
 □Class Action                                                □Post-judgment                                                          □Turnover
Brazos Trace, LLC Delivery Method: Local Sheriffs Fee Address: Paul J. Leventis, Registered AGent
1722 Broadmoor Dr., Suite 212
Bryan, TX 77802 Name: Burton Creek Development, Ltd. Delivery Method: Local Sheriffs Fee Address:
Paul J. Leventis, Registered AGent
1722 Broadmoor Dr., Suite 212
Bryan, TX 77802 Name: Burton Creek Management, LLC Delivery Method: Local Sheriffs Fee Address:
Paul J. Leventis, Registered AGent
1722 Broadmoor Dr., Suite 212
Bryan, TX 77802
                                                                                                                                                 '#£?
          CLERK OF THE COURT                                                      ATTORNE Y FOR PLAINTIFF
              Marc Hamlin                                                         BAILEY, ROBERT
              300 East 26th Street, Suite 216                                     3306 SUL ROSS
              Brvan, TX 77803                                                     HOUSTON, TX 77098

          THE STATE OF TEXAS                                     CIT ATION
          NOTICE TO THE DEFENDANT: “You have been sued. You may employ an attorney. If you or your attorney do not file a
          written answer with the clerk who issued this citation by 10:00 a.m on the Monday next following the expiration of twenty days after
          you were served this citation and petition, a default judgment may be taken against you.”

          TO Burton Creek Management LLC who may be served through                               registered agent      Paul J. Leventis
          at 1722 Broadmoor Dr., Suite 212, Brvan. Tx 77802 Defendant,
          Greeting:
                 You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
          at or before ten o’clock A.M. of the Monday next after the expiration of twenty' days after the date of
          service of this citation before the Honorable 272nd District Court of Brazos County, Texas at the
          Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013,
          in the case, numbered 13-000672-CV-272od the docket of said court, and styled,

          David Cottrell Plaintiff
          VS.
          Burton Creek Development LTD.. Burton Creek Management LLC and Brazos Trace. LLC
          Defendant

                 The nature of Plaintiff s demand is fully shown by a true and correct copy ofPlaintiff s Original
          Petition accompanying this citation and made a pan thereof.
                 The officer executing the writ shall promptly serve the same according to requirements of the law,
          and the mandates thereof, and make due return as the law directs.
                 Issued and given under my hand and sealed of said Court at office, this the 15th day of March, 2013

                                                                 Marc Hamlin
                                                        Cle/k   of Brazos Countv, Texas
                                                                                                   /   i   1/
                                                                                                                Deputy



                          _ _                                                                                                _ M.
                                                         OFFICER’S RETURN

          _
                  Came to hand on the
          Executed at
                                                           day of
                                                         within the County' of     _
                                                                               , 20_                   , at.
                                                                                                                 at
                                                                                                                   o’clock
                                                                                                                              o’clock
               ,M.
          on the               day of                                        20   _  , by delivering to the within
          named
                                       _each.
          in person, a true copy of this citation together with the accompanying copy of the petition, having first
          attached such
          copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery'.
                             Total fee for serving this citation
                                                                                               Sheriff Account
                   To certify' which witness my hand officially.
                                                                                              No.
                                For Clerk’s Use

                     Taxed
                     Returned Record
                                                                 Sheriff of
                                                                 By                                                    _
                                                                                                                       _County, Texas
                                                                                                                              Deputy'




lfl5££&
                                                                                                                                                 aa
                                     '1|"T   r




           CLERK OF THE COURT                                                     ATTORNEY FOR PLAINTIFF
               Marc Hamlin                                                         BAILEY, ROBERT
               300 East 26th Street, Suite 216                                     3306 SUL ROSS
               Bryan, TX 77803                                                     HOUSTON, TX 77098

           THE STATE OF TEXAS                     CITATION
           NOTICE TO THE DEFENDANT: “You have beer sued You may employ an attorney. If you or your attorney do not file a
           written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
           you were served this citation and petition, a default judgment may be taken against you.”

           TO Burton Creek Development, Ltd, who may be served through registered agent Paul J. Leventis at
           1722 Broadmoor Dr.. Suite 212, Bryan. Tx 77802 Defendant,
           Greeting:
                  You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
           at or before ten o’clock A.M. of the Monday next after the expiration of twenty days after the date of
           service of this citation before the Honorable 272nd District Coart of Brazos County, Texas at the
           Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013,
           in the case, numbered 13-000672-CV-272on the docket of said court, and styled,

           David Cottrell Plaintiff
           VS.
           Burton Creek Development LTD., Burton Creek Management. LLC and Brazos Trace. LLC
           Defendant
                  The nature of Plaintiffs demand is fully shown by a true and correct copy ofPlaintiff s Original
           Petition accompanying this citation and made a part thereof.
                  The officer executing the writ shall promptly serve the same according to requirements of the law,
           and the mandates thereof, and make due return as the law directs.
                  Issued and given under my hand and sealed of said Court at office, this the ISthdav of March. 2013

                                                                   Marc Hamlin
                                                         Cleÿk of Bravos County          j   Texas
                                                 By   o4VU                                                       Deputy'



                           _
                    Came to hand on the
                                                    OFFICER’S RETURN
                                                       dav of                 ,20
                                                                                      _
                                                                                      _,at.       o’clock      JvL             _
                                                  _, within the County' of                                 o’clock
           _
           Executed at
               .M.
                                                         _ _
                                                                                                at

           on the             day of                               , 20 , by delivering to the within
           named               _
                                         each,
           in person, a true copy of this citation together with the accompanying copy of the petition, having first                               A’

           attached such
           copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery.
                              Total fee for serving this citation
                                                                                                Sheriff Account
                    To certify which witness my hand officially.
                                                                                               No.
                                 For Clerk’s Use

                      Taxed
                      Returned Record
                                                                   Sheriff of
                                                                   Bv                                                    _
                                                                                                                        _County, Texas
                                                                                                                               Deputy'




0

N
■ｓＢＥａＢＢｇ
                                                                                                                                                  J5ES3S
W

          CLERK OF THE COURT                                                     ATTORNEY FOR PLAINTIFF
              Marc Hamlin                                                         BAILEY, ROBERT
              300 East 26th Street, Suite 216                                     3306 SUL ROSS
              Br/an. TX 77803                                                     HOUSTON, TX 77098

          THE STATE OF TEXAS                     CITATION
          NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney.                     If you or your attorney do not file a
          written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiraion of twenty' days after
          you were served tills citation and petition, a default judgment may be taken against you.”

          TO Brazos Trace, LLC who mav be served through registered                          agent   Paul J. Leventis at 1722
          Broadmoor Dr.. Suite 212, Brvan, Tx 77802 Defendant
          Greeting:
                 You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
          at or before ten o’clock A.M. of the Monday next afterthe expiration of twenty days after the date of
          service of this citation before the Honorable 272nd District Court of Brazos County', Texas at the
          Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day ofMarch A.D. 2013.
          in the case, numbered 13-000672-CV-272on the docket of said court, and styled,

          David Cottrell Plaintiff
          VS.
          Burton Creek Development LTD., Burton Creek Management. LLC and Brazos Trace. LLC
          Defendant
                 The nature of Plaintiff s demand is full)' shown by a true and correct copy ofPlaintiff s Original
          Petition accompanying this citation and made a part thereof.
                 The officer executing the writ shall promptly' serve the same according to requirements of the law,
          and the mandates thereof, and make due return as the law directs.
                  Issued and given under my hand and sealed of said Court at office, this the 15th day ofMarch. 2013

                                                                  Marc Hamlin
                                                          flerk of Brazos County, Texas
                                                                                                                 Deputy'

                                                          OFFICER’S RETURN

          _               _
                   Came to hand on the
          Executed at
                                                     day of
                                                   within the County of
                                                                          _   . 20
                                                                                     _ . at
                                                                                                 at
                                                                                                   o'clock     .M.
                                                                                                           o'clock
              .M.
          on the             day of                               . 20   . bv delivering to the within
          named                         _
                                        each.
          in person, a true copy of this citation together with the accompany'ing copy of the petition, having first
          attached such
          copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery,
                             Total fee for serving this citation
                                                                                                 Sheriff Account
                   To certify which witness my hand officially.
                                                                                                                 No.
                                 For Clerk’s Use

                      T axed
                      Returned Record
                                                                   Sheriff of
                                                                   By                                                   _
                                                                                                                        _County, Texas
                                                                                                                               Deputy




    22E
                                                                                                                                           »ÿM
                                                                                                                                                                              f

                                                                                                                                                       1L1T5
CLERK OF THE COURT                                                                  ATTORNEY FOR ’LAINTIFF
  Marc Hamlin                                                                           BAILEY, ROBERT                                             MAU 1 2013
    300 East 26th Street, Suite 2 1 6                                                   3306 SUL ROSS
    Bryan, TX 77803                                                                     HOUSTON, TX 770!                                                   DIST CLERK
                                                                                                                                                             UWMHanutif
                                                                                                                                                                 JrTKrnUH
THE STATE OF TEXAS                                                CITATION
NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney. If you or your attomey'do not file a
written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
you were served this citation and petition, a default judgment may be taken against you.”

TO Brazos Trace, LLC who may be serv ed through registered agent Paul J. Leventis at 1722
Broadmoor Dr, Suite 212, Bryan, Tx 77802 Defendant
Greeting:
       You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o’clock A.M. of the Monday next afterthe expiration of twenty' days after the date of
service of this citation before the' Honorable 272nd District Court of Brazos County, Texas at the
Courthouse of said County' in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013.
in the case, numbered 13-000672-CV-272on the docket of said court, and styled,
                                                                            j       *
                                                                                *
                                                                            t   *   '
David Cottrell Plaintiff
VS.                                                     ..-
                                                        $ . *
                                                                   0   ,                                                .

Burton Creek Development, LTM Burton Creek Management, LLC and Brazos Trace, LLC
Defendant                                                                                   ¥       '
                                                                                                            *
                                         .
                                             ** *         *4                                        X           s
                                         *                %
       The nature of Plaintiff S demand fe'flxlly shown by a true add correct copy of Plaintiff s Original
Petition accompanying this §itAiomamfihÿde a part thereof, y ,                  " 1;                    •
                                                                                                                    •
                                                                                                                            *


       The officer executing;the wi|t%sh|i promptly seitye the saittÿ according to requirements of the law,
and the mandates thereof, |t|d make       retiim as* the Jlw directs* \ * * * ;
       Issued and given und|r                  sealed pBaicfCourt at office, this the 15thday of March, 2013
                                   \ . , * i‘ •           :
                                                Mart Hamlin
                                                                feof BWps Countxÿexas • . *
                                                                                                                                          Deputy
                                                                                                            *

                                                                                                *                       k \*
                                                                           W IUK*
                                                                                                                                                       J
Executed
        Came to
             at/
                              d on        .
                                         )QD/r
                                                    .        W&MWUA              A
                                                          , within the Uoutitvÿ5f Jjf                                       Uj
                                                                                                                                 at
                                                                                                                                      —    at   3*30   o’clock

cm the                davÿof
named
                              each,
                                                                                'cWc/l '
in person, a true copy of this citation together with the accompanying copy of the petition, having first
attached such
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery.
                   Total fee for serving this citation /Q
                                                                                    Sheriff Account
         To certify which witness my hand officially.
                                                                                    No.
                       For Clerk’s Use
                                                                           Christopher C. ICirk, Sheriff
            Taxed                                                  Sheriff of                                                                    County, Texas
            Returned Record                                        By                                                                                  Deputy
                                                                                                                    ffcmmy                Pdkxk


        gggCTgjggggggg                                                                                                                                                      =JI
                                                                                                                                      foe, FI LEST
      CLERK OF THE COURT                                                                       ATTORNEY FOR PLA KlfT$P                          71  o'nlnrk
          Marc Hamlin                                                                          BAILEY, ROBERT
          300 East 26th Street, Suite 2 1 6                                                    3306 SUL ROSS                                        R Z 1 2013
          Bryan, TX 77803                                                                      HOUSTON, TX 77098

      THE STATE OF TEXAS                     CITATION                                                                                                            jBaayft
      NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney. If you or your attorney dbnÿt file a
      written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
      you were served this citation and petition, a default judgment may be taken against you.”

      TO Burton Creek Management, LLC who                          may             be served through registered agent Paul J. Leventis
      at 1722 Broadmoor Dr., Suite 212, Brvan, Tx 77802 Defendant.
      Greeting:
             You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
      at or before ten o’clock A.M. of the Monday next after the expiration of twenty days after the date of
      service of this citation before the Honorable 272nd District Court of Brazos County, Texas at the
      Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013.
      in the case, numbered I3-000672-CV-272on the docket of said court, and styled,

                                                                11 ' ' '„ ' “ ' *
                                                              :t*
    -
    David Cottrell Plaintiff
    vs.
                                                          ;             *

                                                                                           r>»-
                                                                                               •   < » i * .

                                                                                                           .
      Burton Creek Development, LTD., Burton Creek Management, LLC and Brazos Trace. LLC
      Defendant                   "



             The nature of Plaintifflsdemand iS fully shown by a true and correct copy ofPlaintifPs Original
      Petition accompanying this;catatiop*andnaade a part thereof. i * >                               ■




             The officer executing She wrk shill promptly serve the same accordihg to requirements of the law,
      and the mandates thereof, arid make      retunratfitbe law' directs. • > ;       **                           ■




I            Issued and given under .nay hand and sealed of laid Court at office, this the 15thday of March, 2013
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                                                              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             •                                           ■
                                                                                                                                  ■




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          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 *..«**'
                                          *
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                                                          Couirty

                                                                                                                                                                           Deputy'
                                                                                                                              **               4

                                                                 OFFICER’S
                                                                         ’cfciVsOsf-
                                                                                                                                                                                     o'clock


    M
       w.       Tt ftnro              _each,
                                                                                                                                                                                               Paul
    m person, a true copy of this citation together with the accompanying copy of the petition, having first
    attached such
    copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery'.
                      Total fee for serving this citation    /Q
                                                                                        Sheriff Account
             To certify which witness my hand officially.
                                                                                       No.
                          For Clerk’s Use
                                                                                                               Christopher C. Kirk. Sheriff
               Taxed_                                                                         Sheriff of                                                                        County, Texas
               Returned Record                                                                By                                                                                      Deputy'
                                                                                                                                               Tfcmmv Poiock
                                   NO. 13-000672-CV-272

DAVID COTTRELL                                §
Plaintiff,                                    §
                                              §
V.                                            §     272D JUDICIAL DISTRICT
                                              §
BURTON CREEK DEVELOPMENT,                     §
LTD., BURTON CREEK                            §
MANAGEMENT, LLC AND BRAZOS                    §
TRACE, LLC                                    §
Defendants.                                   §     OF BRAZOS COUNTY, TEXAS

             DEFENDANTS' ORIGINAL ANSWER AND COUNTERCLAIM

       NOW COME Defendants, Burton Creek Development, Ltd., Burton Creek Management,

LLC and Brazos Trace, LLC, named Defendants in the above-entitled and numbered cause, and

file this Original Answer and Counterclaim, and show the Court:

                       PARTY IDENTIFICATION INFORMATION

       Burton Creek Development, Ltd. has not been issued a driver's license. Burton Creek

Development, Ltd. has not been issued a Social Security number.

       Burton Creek Management, LLC has not been issued a driver's license. Burton Creek

Management, LLC has not been issued a Social Security number.

       Brazos Trace, LLC has not been issued a driver's license. Brazos Trace, LLC has not

been issued a Social Security number.

                              DISCOVERY CONTROL PLAN

       1.     Defendants/Counterclaimants, by their Counterclaim, seek other than monetary

relief, and therefore this cause shall be governed by a Discovery Control Plan as described in

Rule 190.3, Rules of Civil Procedure (Level Two).
                                       GENERAL DENIAL

        2.      Defendants deny each and every, all and singular, the allegations of Plaintiffs

Petition, and demand strict proof of each of them as required by the laws of Texas.

                                      VERIFIED DENIALS

        3.      Conditions precedent to the filing of suit have not been satisfied as alleged.

Specifically, Plaintiff has not made proper demand on Defendants.

        4.      The alleged contract which is the subject of the suit is without consideration.

        5.      Consideration for the alleged contract which is the subject of the suit has wholly

or partially failed.

        6.      Notice and proof of the loss or claim were not given as alleged.

                                  AFFIRMATIVE DEFENSES

        7.      Plaintiffs recovery is barred because of failure of consideration.

        8.      Plaintiffs contract does not satisfy the requirements of Tex. Occ. Code §

1101.806, which is the applicable statute of frauds.

                             DEFENDANTS' COUNTERCLAIMS

        9.      Defendants/Counterclaimants seek only monetary relief of $100,000.00 or less,

including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney

fees, within the jurisdictional limits of the Court, and demand judgment for all the other relief to

which they deem themselves entitled.

                                              FACTS

        10.     Burton Creek Development, Ltd. is or was the owner of several parcels of real

property in Bryan, in the general vicinity of East William Joel Bryan Parkway, East Villa Maria

Road, Nash Street, and Broadmoor Drive.
       11.    During the period prior to December 14, 201 1, Burton Creek Development, Ltd.

had been in discussions regarding the possible sale of one parcel to a developer for the purpose

of building apartments. During the course of the discussions regarding the apartment land, it was

contemplated that Plaintiff David Cottrell was to bring a prospective buyer of the apartment land

to Burton Creek Development, Ltd.

       12.     With respect to this prospective transaction, Burton Creek Development, Ltd. sent

an email to David Cottrell which contemplated payment of a commission on the apartment land.

It is plain from the language of the email that the subject matter was the apartment land, as the

email notes that Cottrell’s offer would have to exceed a previous offer by a specified amount in

order to cover the commission. Furthermore, although the email contemplates payment of a

commission, it does not adequately describe any parcel of land, and thus does not fulfill the

requirements of the applicable statute of frauds.      Therefore, Cottrell is not entitled to a

commission.

       13.     The land which was actually sold was a nearby parcel of land, which was sold to

Del Lago Ventures, Inc. David Cottrell was never hired to market the property which was sold,

and never did any work in connection with the sale of that property. Thus Cottrell is not entitled

to a commission.

       14.     There exists a genuine controversy between the parties herein that would be

terminated by the granting of declaratory judgment. Defendants therefore request that declaratory

judgment be entered as follows:

               a. That the alleged contract upon which Plaintiffs lawsuit is based is not a

                   contract;

               b. That the alleged contract upon which Plaintiffs lawsuit is based does not
                   satisfy the applicable Statute of Frauds;

               c. That the alleged contract upon which Plaintiffs lawsuit is based does not,

                   either by itself or by reference to another writing then in existence, identify

                   with reasonable certainty the land to be conveyed.

       15.     Pursuant to Section 37.009, Civil Practice and Remedies Code, request is made

for all costs and reasonable and necessary attorney fees incurred by Defendants herein, including

all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme

Court of Texas, as the Court deems equitable and just.


                                             PRAYER

       Defendants pray the Court, after notice and hearing or trial, enters judgment in favor of

Defendants, awards Defendants the costs of court, attorney's fees, and such other and further

relief as Defendants may be entitled to in law or in equity.



                                              Respectfully submitted,

                                              Peterson Law Gr



                                              Christopher Wf Peterson
                                              Texas Bar No. 00797239
                                              E. V. "Rusty" Adams III
                                              Texas Bar No. 24045372
                                              3608 E. 29th Street
                                              Ste. 112
                                              Bryan, Texas 77802
                                              Tel. (979) 703-7014
                                              Fax. (979) 703-7031
                                              Attorney for Defendants
                                              Burton Creek Development, Ltd., Burton Creek
                                              Management, LLC and Brazos Trace, LLC
                                    NO. 13-000672-CV-272

DAVID COTTRELL                                     §     IN THE DISTRICT COURT
Plaintiff,                                         §
                                                   §
V.                                                 §     272D JUDICIAL DISTRICT
                                                   §
BURTON CREEK DEVELOPMENT,                          §
LTD., BURTON CREEK                                 §
MANAGEMENT, LLC AND BRAZOS                         §
TRACE, LLC                                         §
Defendants.                                        §     OF BRAZOS COUNTY, TEXAS


                                       VERIFICATION

       BEFORE ME, the undersigned authority, personally appeared Paul Leventis, who being

duly sworn, deposed as follows:

       "My name is Paul Leventis. I am a managing member of Burton Creek Management,

LLC, the general partner for Burton Creek Development, Ltd. and am a managing member of

Brazos Trace, LLC. I am at least 18 years of age and of sound mind. I am personally acquainted

with the facts alleged in Defendants' Verified Denials. I hereby swear that the statements in

support of Defendants' Verified Denials are t


                                                Paul Leventis, a             Member of Burton
                                                Creek Management,  LLC,   the General Partner of
                                                Burton Creek Development, Ltd. and as Managing
                                                Member of Brazos Trace, LLC


       SUBSCRIBED AND SWORN TO BEFORE ME on
Paul Leventis in the capacities shown above.
                                                                       Qasu/ /£   £0/3      ,   by




                                                4837-7275-5731, v. 2
                              CERTIFICATE OF SERVICE

      I certify that on April 10, 2013 a true and correct copy of Defendants' Original Answer
and Counterclaim was served by facsimile transmission otyRetert'G. Bailey at 713.630.0017.
DAVID COTTRELL                                   §     IN THE DISTRICT COURT
Plaintiff,                                       §
                                                 §
V.                                               §     272D JUDICIAL DISTRICT
                                                 §
BURTON CREEK DEVELOPMENT,                        §
LTD., BURTON CREEK                               §
MANAGEMENT, LLC AND BRAZOS                       §
TRACE, LLC                                       §
Defendants.                                      §     OF BRAZOS COUNTY, TEXAS

                DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COME Defendants, Burton Creek Development, Ltd., Burton Creek Management,

LLC and Brazos Trace, LLC, Movants herein, and request the Court to enter Summary Judgment

in favor of Movants on the counterclaim and affirmative defenses set forth herein and against

Plaintiff David Cottrell (hereinafter Non-Movant), and in support thereof, show the Court the

following:

                                                 I.

       There are no genuine issues of material fact in this case; therefore, the Court may decide

this case on the   summary'   judgment evidence attached to this motion, which evidence is

incorporated herein by reference.

                                                 II.

       A.     Movants filed a counterclaim against Non-Movant seeking a declaratory

                      judgment declaring that:

              a. The alleged contract upon which Plaintiffs lawsuit is based is not a contract;

              b. The alleged contract upon which Plaintiffs lawsuit is based does not satisfy
                   the Statute of Frauds; and

               c. The alleged contract upon which Plaintiffs lawsuit is based does not, either

                   by itself or by reference to another writing then in existence, identify with

                   reasonable certainty the land to be conveyed.

        B.     There is no genuine issue of material fact as to the above.

        C.     Movants include affidavits, discovery, documentary evidence and Non-Movant's

                       pleadings as summary judgment evidence, attached hereto as Exhibits A-E

                       (inclusive) and incorporated by reference for all purposes as if recited

                       verbatim herein.

                                                 III.

        A.     Movants raised the affirmative defense of statute of frauds to Non-Movant's

claim. Movants are required to prove that the alleged contract upon which Plaintiffs lawsuit is

based does not, either by itself or by reference to another writing then in existence, identify with

reasonable certainty the land to be conveyed.

       B.      There is no genuine issue of material fact as to the defense of statute of frauds and

include affidavits, discovery, documentary evidence and Non-Movant’s pleadings as summary

judgment evidence attached hereto, filed with this motion and incorporated by reference for all

purposes as if recited verbatim herein.

                                                IV.

       A.      If summary judgment for Movants is not rendered on the entire cause or for all

relief requested, and if a trial is necessary on some of the issues in this cause, Movants request

the Court, after examining the pleadings and summary judgment evidence before it and after

interrogating counsel to ascertain those material facts that are in good faith actually controverted,
to make an order specifying those facts that appear to be without substantial controversy and

directing such further proceedings in the action that are just.

                                             PRAYER

       WHEREFORE, PREMISES CONSIDERED, Movants pray that:

       The Court set this matter for hearing, with notice to Non-Movant, and that upon

completion of said hearing the Court grants Movants' Motion for Summary Judgment, and that

Movants have the following:

       1.      Judgment against Plaintiff David Cottrell, for declaratory judgment, or

alternatively, should the Court find some facts to be controverted. Movants be granted a partial

summary judgment specifying those facts that appear to be without substantial controversy;

       2.      Judgment against Plaintiff David Cottrell, on the affirmative defense of statute of

frauds or alternatively, should the Court find some facts to be controverted, Movants be granted

a partial summary judgment specifying those facts that appear to be without substantial

controversy;

       4.      Pre-judgment and post-judgment interest as provided by law;

       5.      Judgment for attorney's fees as prayed for and proved by affidavit attached hereto;

       6.      Costs of suit; and

       7.      Movants be granted such other and further relief, special or general, at law or in

equity, as may be shown that Movants are justly entitled to receive.




                                               Respectfully submitted,

                                               Peterson Law Group
                                          1733 Briarcrest Drive, Suite 100
                                          Bryan, Texas 77802
                                          Tel. (979) 703-7014
                                          Fax. (979) 703-7031
                                          Email: rusty@brazoslawyers.com
                                          Attorney for Defendants
                                          Burton Creek Development, Ltd., Burton Creek
                                          Management, LLC and Brazos Trace, LLC




                              CERTIFICATE OF SERVICE

     I certify that on January 24, 2014 a true and correct copy of Defendants' Motion for
Summary' Judgment was served by facsimile transmission on Robert G. Bailey at 713.630.0017.



                                         E. V. "Rusty1' Adams III
                                    NO. 13-00Q672-CV-272

DAVID COTTRELL                               §   IN THE DISTRICT COURT
Plaintiff,                                   §
                                             §
V.                                           §   272D JUDICIAL DISTRICT
                                             §
BURTON CREEK DEVELOPMENT,                    §
LTD., BURTON CREEK                           §
MANAGEMENT, LLC AND BRAZOS                   §
TRACE, LLC                                   §
Defendants.                                  §   OF BRAZOS COUNTY, TEXAS


                            APPENDIX TO
              DEFENDANTS1 MOTION FOR SUMMARY JUDGMENT

                                    TABLE OF CONTENTS

      All summary judgment evidence in this appendix is incorporated by reference into
Defendants’ Motion for Summary Judgment.

      I.     Plaintiffs Pleadings

                                                                                    Exhibit A

      II.    Affidavits

             Affidavit of E. V. “Rusty” Adams III attesting to the authenticity
             of the documents attached hereto.
                                                                                    Exhibit B
             Affidavit of E. V. "Rusty" Adams III attesting to the amount and
             reasonableness of attorney fees, with attached documentation.
                                                                                    Exhibit C
                                                                                                           l£] 002/00 f
01/16/2014 12.43 FAX




                                       No. 13-000672-CV-272
 DAVID COTTRELL                                    §                 IN THE DISTRICT COURT OF
                                                   §
 vs.                                               §                    BRAZOS COUNTY, TEXAS
                                                   §
 BURTON CREEK DEVELOPMENT, LTD,                    §
 BURTON CREEK MANAGEMENT, LLC   §
 AND BRAZOS TRACE, LLC          §                                       272ND JUDICIAL DISTRICT
                PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION
 TO THE HONORABLE JUDGE OF SAID COURT:
        COMES NOW, David Cottrell, Plaintiff complaining of Burton Creek Development, Ltd,
 Burton Creek Management, LLC and Brazos Trace, LLC, Defendants, and as grounds therefor would
 show the Court as follows;
                                                   I.
        1.1 Discovery is intended to be conducted under Level 1 of Rule 190, Texas Rules ofCivil
 Procedure.
                                                  IL
        2.1 David Cottrell (“Cottrell”), Plaintiff, is an individual residing in Harris County, Texas,
        22 Burton Creek Development, Ltd. (“Development”), Burton Creek Management, LLC
(“Management”) and Brazos Trace, LLC (“Brazos Trace”), Defendants, have all appeared and
answered herein.


       3.1 Venue is proper in Brazos County, Texas, because Brazos County is the county in which
all or a substantial part of the events OT omissions giving rise to the claims asserted herein occurred.
       3.2 Venue is proper in Brazos County, Texas as to each Defendant, because Brazos County
is the county in which each Defendant has its principal office in this state and each Defendant is not
a natural person.
       3.3 Venue is proper in Brazos County, Texas, as to all of the Defendants, because (a) all of
the claims asserted herein arise out of the same transaction, occurrence, or series of transactions or
occurrences and (b) Cottrell has established proper venue against one or more of the Defendants.




                                                           EXHIBIT.
                                                                                                            lÿ] QOd/UO /
01/16/2014 12:48 FfcX




                                                  IV.
        4.1 Cottrell is a real estate broker licensed by and in good standing with the Texas Real
 Estate CommLssiotL
        4.2 Development entered into a written contract (the “Contract”) in writing with Cornell, by
 which Cottrell was engaged to assist in selling a tract of land (the ‘‘Property”) owned by
 Development and located in Bryan, Texas. A true and correct copy of the Contract is attached hereto
as Exhibit A. A detailed legal description and partial plat of a survey of the Property are set forth
 in Exhibit B, attached hereto. Under the Contract, it was agreed that Cottrell would be paid a
commission of 6% if he brokered a sale of the Property.
        4.3 Cottrell was contacted by representatives of RaceTrac Petroleum, Inc,, who expressed
 interest in purchasing the Property. Cottrell introduced them to Defendants, Development sold the
Property to Gingercrest, Inc., a RaceTrac affiliate.
        4.4 Cottrell has fully performed his obligations under the Contract by bringing a buyer,
RaceTrac or an affiliate thereof, of the Property to Development Development knowingly accepted
Cottrell’s services by selling the Property to RaceTrac or its affiliate. It received the benefits of the
sale that had been arranged by Cottrell, namely, die sales price.
        4.5 Cottrell has made demand on Defendants for payment of his commission of $51,015.15,
but they have foiled and refused to do so.
                                                  V.
        5.1 Brazos Trace or its member, Paul Leventis, made the Contract with Cottrell as agent for
Development. In doing so they acted within the course and scope of the authority granted to them
by Development, whether actual or apparent. Development has breached the Contract made on its
behalf by foiling to pay Cottrell the 6% commission that he earned for enabling Development to sell
the Property to RaceTrac or an affiliate. As a result of Development's breach of the Contract,
Cottrell has been damaged the sum of $51,015.15, for which Cottrell now sues Development
        52 Management is the general partner of Development and, as such, is jointly and severally

                                                   2
                                                                                                               igioua/cof
     (M/lb/iitm Ik'.Atf l-ÿX




      liable with it for Development’s breach of the Contract.
                                                       VI.
             6.1 In die alternative, if Brazos Trace exceeded its authority, actual or apparent, by entering
      into the Contract on behalf of Development, then Brazos Trace is liable to Cottrell for its breach of
      the Contract, for which Cottrell now sues Brazos Trace.
                                                      vn,
             7.1 Cottrell is entitled to recover a reasonable attorney’s fee pursuant to Ch. 38, Texas Civil
      Practice and Remedies Code.
                                                      vm
             8.1 All conditions precedent to the right of Cottrell to recover the relief requested herein
      have occurred or have been satisfied.

             WHEREFORE* PREMISES CONSIDERED, Cottrell                     prays that he have and recover
      judgment against Development and Management, jointly and severally, for actual damages of
      $51,015.15, attorney’s fees, pre- and post-judgment interest and costs of suit In the alternative,
      Cottrell prays for judgment against Brazos Trace for actual damages of $51,015.15, attorney’s fees,
      pre- and post-judgment interest and costs of suit Cottrell prays for such other and further relief to
      which he may be justly entitled.
                                                             Respectfully submitted*
                                                             ROBERT G. BAILEY, P.C.

                                                             By:   /S/ ROBERT G. BAILEY
                                                                                   ~~
                                                                   Robert G. Bailey
                                                                 State Bar No. 01536200
                                                                 3306 Sul Ross
                                                                 Houston, Texas 77098
                                                                 Land: 832-485-1338
                                                                 Cell: 713-819-5534
                                                                 Fax: 713-630-0017
                                                                 Email: ibailey@robertbaileypc,com
                                                             ATTORNEY FOR PLAINTIFF


                                                       3




i.
                                                                                                     |g]   OOVOO (
01/16/2014 12:49 FAX




                                 CERTIFICATE OF SERVICE
        I hereby certify that a true and correct copy of the foregoing was served on the following
 counsel of record via fax, hand delivery or certified mail on January 16, 2014:
 Christopher W. Peterson
 E.V, “Rusty” Adams, III
 Peterson Law Group
 3608 East 29* St., Suite 112
 Bryan, Texas 77802
 Phone: 979-703-7014
 Fax; 979-703-7031

                                                        /S/ ROBERTO. BAILEY
                                                        Robert G. Bailey




                                                4
         01/IBrZVM      .   na   MX                                                                                     ifl ooa/yu i




                      Pad L—rOs gmiptnuiium caw]
Sant                  WMhHday, DMMbar14,2011 tttSSPM
T*!                   f*ul LewMaÿ Davtd Ocdrel
c*                    JMnyÿmnyUodr com;           InwtaimonlnB.oomÿ W Kodan*
                      Rfc Land tor Safe Naan and WJBrywi


Divid,

At a clarification, the 6% commission will cover your commission of S3 end a S3 commission to the buyer agent that It
Winging the group out of Dallas. Please confirm that this Is correct so there Is no misunderstanding.

Hanks,
Plul

KWHS Paul Levends fnÿjtKDauiObmrtÿraÿÿniT
sent: Wednesday, December 14, 2011 7:22 AM
Tbs Uavld Cottreir
ce '<lanff|<a|anf»miartirr»y»ÿ‘- 'nedeflnertnrnesonln&aim'; 'BW (Cotton'
Subject Land for Sale Nash and WJBryan

David,

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.

Thanks,




                                            EXHIBIT A


                                                           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




                                                                                            \

                                               PROPERTY




                                 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

they are all true and correct.

        “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

                                                                                                            0.25


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

                                                                                                            0.25

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

                                                                                                          0.25


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

                                                                                                          0.25


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

                                                                                                          0.25


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

                                                                                                          0.25


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

                                                                                                          0.25


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

                                                                                                          0.25


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

                                                                                                          0.25


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

                                                                                                          0.25


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

                                                                                                             3.25

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

                                                                                                             0.50


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

                                                                                                             0.25

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

                                                                                                             0.25

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

                                                                                                            0.25


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

                                                                                                            0.25

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

                                                                                                            0.25


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

                                                                                                            0.25


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

                                                                                                            0.50

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

                                                                                                            0.25


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

                                                                                                            0.25


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

                                                                                                            0.25


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

                                                                                                            0.50


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

                                                                                                      1.00


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

                                                                                                      0.50


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

                                                                                                      0.75


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

                                                                                                      0.50

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

                                                                                                      0.25


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

                                                                                                      0.25


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

                                                                                                      0.50


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

                                                                                                         1.50

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

                                                                                                         1.50


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

                                                                                                         2.00

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

                                                                                                         0.50


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

                                                                                                         3.00

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

                                                                                                         0.50


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

                                                                                                         0.25

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

                                                                                                      0.50

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

                                                                       2013-03766

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

                                                                       2013-03766

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

                                                                       2013-03766

                                                                                             $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

                     reasonable certainty the land to be conveyed.

          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

TO THE HONORABLE JUDGE OF SAID COURT:

       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,

                                                         ROBERT G. BAILEY, P.C.

                                                         Bv:/S/ ROBERT G. BAILEY
                                                            Robert G. Bailey
                                                            State Bar No. 01536200
                                                            3306 Sul Ross
                                                             Houston, Texas 77098
                                                            Land: 832-485-1338
                                                            Cell: 713-819-5534
                                                             Fax: 713-630-0017
                                                            Email: rbailey@robertbaileypc.com
                                                         ATTORNEY FOR PLAINTIFF




                                                     9
                                CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of the foregoing was served on the following
counsel of record via fax, hand delivery or certified mail on March 17, 2014:

Christopher W. Peterson
E.V. “Rusty” Adams, III
Peterson Law Group
3608 East 29lh St., Suite 1 12
Bryan, Texas 77802
Phone: 979-703-7014
Fax: 979-703-7031
Email: rusty@brazoslawyers.com
                                                        /S/ ROBERT G. BAILEY
                                                        Robert G. Bailey




                                               10
     APPENDIX 5

 EXHIBITS ATTACHED
HERETO CAN BE FOUND
    IN THE CLERK’S
RECORD. THEY HAD TO
BE REMOVED BECAUSE
     THE FILE SIZE
WOULDN’T ALLOW FOR
 EFILING. THANK YOU.
                                                                                                                              Filed 4/22/2014 4:44:25 PM
                                                                                                                             Marc Hamlin, District Clerk
                                                                                                                              Brazos County, Texas
                                                                                                                              Kayla Johnson




                                                                     NO. 13-000672-C V-272

DAVID COTTREL1,                                                                  §    IN THE DISTRICT COURT
Plaintiff,                                                                       §
                                                                                 §
V.                                                                               §    272D JUDICIAL Df STRICT
                                                                                 §
                                                            •AELOPMENT,          §
LTD., BURTON CREEK
MANAGEMENT, Li C AND BRAZOS                                                      §
TRACE, EEC                                                                       §
Defendants.                                                                      §    OF BRAZOS COUNTY, TEXAS

                                  DEFENDANTS' RESPONSE TO
                  PLAINTIFF’S CROSS-MOTION FOR PARTIAL St                                                      JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

                  NOW COME Defendants. Burton Creek Development. Lid.. Burton Creek Management
                                                                                          *                                  ■？




i,i.C            unci Brazos Trace, LI..C-, Non-Movants                        herein, and request this   Honorable Court   io Dr, NY


Movant's Cross-Motion tor Partial                                     Summary    Judumcm and GRANJ Defendants' Motion lor

.C 1I : '-r,
          - iPfe‘V
             i i’tf . r
                               i 1 1- f O 8< ft .' T V?
                                                  ■*




 /         i.t
                          **       -v* w, * *          -
                                                     • »«




                  A.                        Pursuant to Rule 166a(d). Rules of Civil Procedure, this notice shall serve a

Piai miffs statement of intent to use unfiled discovery products as proof in Plaintiffs Motion for

Summary J uaument.


                  B.                        In addition to Defendants/      summary    judumem evidence attached to Defendant*

Motion for Summary Judgment, Defendants submit affidavits, and deposition transcripts, along

with documentary evidence attached thereto as exhibits, as summary judgment evidence.

attached              hereto,                     riled with this response and incorporated by such reference for all purposes as if

  VV   i           • V,   .    -feL L l i   i i   iiV!V;;:.
                                        n.
A,    Defendants owned numerous tracts of land near the area of William Joel Bryan
      Parkway, Nash Si reel, and Has! Villa Maria Road. Cottrell Deposition 83:18*
      83:20; 83:21-87:20 and Exhibits 4 and 16 thereto, Leveniis Affidavit.

11.   Defendants,   by and through their agent. Paul Levemis, had general
      communications with Plaintiff regarding developing the area as a mixed use
      development. During this time, a proposed “General Letter of Understanding'*
      was drafted. This document was never agreed upon or signed, and the joint
      venture contemplated therein never materialized. Cottrell Deposition 46:24-53:5
      and Exhibit 3 thereto.

C     The subject of the aliened   agreement   was land other than the corner pad which
      soiu:


           The email upon which Plaintiff bases his claim was a proposed agreement
           regarding land which was intended n> be sold to an apart mem developer.
           Cottrell Deposition 62:3-62:19; 62:20-63:21 and Exhibit 4 thereto.
           (Specifically, the alleged contract is Exhibit A to Deposition Exhibit 4.)


      b. Plaintiff never replied to the email to accept the offer or to clarify what 1aru! it
         covered.     Cottrell deposition 60:21-61:21 and Exhibit 4 thereto.
         (Questioning regarding Exhibit 4 begins at 53:6,)


      e. Exhibit B to Plaintiffs Petition was not part of the alleged contrac:. Cottrell
         Deposition 54:14-57:15 and Exhibit 4 thereto.

      d. The price discussed in the alleged agreement was a price which supports the
         conclusion that it applied to apartment land, and not to die corner pad.
         Cottrell Deposition 98:22-99:10 and Exhibit 26 thereto.

      e.   The buyer out of Dallas (mentioned in the alleged agreemerr.) was an
           apartment developer, and not CVS. In fact, the dealings with CVS ended in
           Jarman of 201 E almost a year before the alleged agreement. Cottrell
           Deposition 132: 10-134: 1 and Deposition Exhibit 25 thereto.

D.    Defendants owned numerous tracts in that general vicinity. Cottrell Deposition
      83:18-83:20; 83:21-87:20 and Exhibits 4 and 16 thereto.

E.    The sign advertising property in the area was erected and paid tor by Leveniis on
      behalf of Defendants. Cottrell Deposition 43:15-44:6.
          The sign was not placed on the corner pad. Cottrell Deposition 41:8-4! .18,

          it was never contemplated that the comer pad would be      apartment   land Levants



H           he prospective deal with CVS was pursued and lost ions before the lime of the
          alleged agreement. Cottrell Deposition 96:22-98:21 ami Exhibit 25 thereto:
          98:22-99:1 0 and Exhibit 26 thereto; Cottrell Deposition I32:1(M33iHL

          Seyhan (an employee of the purchaser) contacted Cottrell in .009 or 0 1. 0. loin
          before the writing upon which Plaintiffs claim existed.
          39:25-40:25.

          Cottrell was not involved in the transaction. Cottrell Deposition 129:5-130:13*

          Cottrell was copied on the emails between Lev ends and the buyer because he was
          looking for a buyer for the apartment land. Cottrell Deposition 116:5-116:19
          and Exhibit 49 thereto: Cottrell                                     Exhibit 5


L.        Cottrell never replied to die emails and did not preserve his emails. Cottrell
          Deposition 101:10-102:4: 117:19-118:16.

\L        The parcel of land which was sold did not touch Villa Maria Cottrell Deposition
          71:16-73:4 and Exhibit 7 thereto,

N.        Starting in September of 20:2, Cottrell began asking I even* is to sign a
          commission agreement for the comer pad site, showing dial he knew there was no
          commission agreement in place. C ottrell Deposition i !9:7-! 19:18 and Exhibit
          53 thereto; Cottrell Deposition 125:4-125:10 and Exhibit 56 thereto.

O.        Plaintiff never listed the property. Leventis affidavit.

                                                     III.

A.        Y<? genuine issue of material fact. There is no     genuine issue of material iuel.


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.

                                                PRAYER

         WHEREFORE, PREMISES CONSIDERED. Non- Movants pray that this Court will

denv Plaintiffs Cross-Motion for Partial Summary Judgment and mnt Defendant’s Motion for

Summary Judgment, or order such other relief as may be appropriate.
Respectfully submitted.

Peterson Law Group


By:                  .....
!L V. "Rusty'1 Adams !H
Texas Bar No. 24045372
                          ■
                            -


1733 Briarcresi Drive. Suite 100
Bryan. Texas 77802
  *

Tel. (979) 703-7014
Fax. (     ) 703-703 1

F.maii : rusty-'fi:brazos!a\vyers.com
Attorney for Defendants
Burton Creek Development. I ad. Burton    K reek
Management. LI..C and Brazos Trace. LLC
          certify that on April 22. 2014. a true and correct copy of Defendants’ Response to
           ]
  oil on  for Summary judgment was served on Robert G. Bade) dectroniealiy
rbailcy rOrobcnbaiicypc.com, and the electronic transmission was reported as complete.



                                          11. V. "Rusty'* Adams S!I
                                          E-mail : rusty -g brazosiawyers.com
                                                                                             Filed 4/22/2014 4:44:25 PM
                                                                                            Marc Hamlin, District Clerk
                                                                                             Brazos County, Texas
                                                                                            Kayla Johnson




                                                NO. 1 .5-000672-C V-272

DAVID COTTRELI                                            §    IN HIE DISTRICT COURT
Plaintiff,                                                §
                                                          §
V.                                                        §   272D JUDICIAL. DISTRK   [



LTD., BURTON CREEK
MANAGEMENT, EEC AND BRAZOS
TRACE, EEC                                                >
Defendants.                                               §   OF BRAZOS CO l NTY, I EX AS


                                APPENDIX TO
                          DEFENDANTS’ RESPONSE TO
             PLAINTIFF’S MOTION FOR PARTIAL SI MM ARY JUDGMENT

                                              TABLE OF CONTENTS

       Mi summary judgment evidence in this appendix is incorporated by reference                TV

Defendants’ Response to Plaintiffs Motion for Partial Summarv Jiukm cm
               ' i*
                iff   -ri A. v
                      viu
                               ?i N
                             ' le
                              i




              Hxhihk A: Affidavit of Paul I .event is

              exhibit 8: Affidavit of I*. V, ” Rusty Adams 111 attesting to the
                                                                *?



              amount and reasonableness of attorney fees.

              Exhibit C: Affidavit of K. V. "Rusty’’ Adams Hi attesting to lix
              a u i.l vent i c i \ v o I' do e umei it s .

        n                             ‘
              1 Je po s i i i o n l ran.se ri pt .

              l:\hibii D:     frue and correct copy of the transcript of the
              deposition of David Coureii with a true copy of the certificate of
              the deposition officer, true and correct copies of the referenced
              exhibits, and the affidavit of!:. V. ,!RuslvM Adams HI.
                                                                                                        Watefflti&asspifaabBgtiHrfWM




                                             NO. 1 3-000672-CV-272

DAVID COTTREL1                                           §   IN THE DISTRICT ( OCR I
Plaintiff,                                               $
                                                         §
                                                         §   272D JUDICIAL DISTRICT
                                                         §
BURTON CREEK DK\ Ei.OPMFM .                              §
LTD., BLR I ON CREEK                                     §
MANAGEMENT, EEC AND BRAZOS                               §
TRACE. EEC                                               §
Defendants.                                              §   OF BRAZOS COUNTY, TEXAS

                                      AFFIDAVIT OE PALE EKVEN HS

         BEFORE ME, the undersigned authority, on this day personally appeared Paul Levemis.

u ho.   being by me duly sworn, deposed as follows:

         "My name is Paul Leventis. I am over twenty-one years of age. of sound mind and

capable of making this affidavit. The facts stated in this affidavit are personally known by me

and are true and correct.

          •Mv name is Paul i .eventis. ! am an officer of each of the Defendants in this suit.

          'Defendants own or owned several tracts of land in the viemiu of William duel Bn an

Farkwav. Nash        Street,    and Last Villa Maria Road in Brvan. I had uenerai communications with

David Cotircl! regarding the development of those lands. There was a proposed "General i.etter

of Understanding" circulated which contemplated such a development plan,                        l-foviv.ver. that

General Letter of Understanding was never aureed upon or sinned, and lire join, venture

contemplated therein never took place.

           I'hcre   ■'-vere   several iterations of site plans contemplated ior a   mtÿcc-use    development.

In each of the site plans, the corner pad on the corner of William Joel Bryan Parkway and Mash

Street was to he a retail development            including possibly a convenience     store,   in some o- the
plans. the additional     frontage    on William Joel Brvan was to be retail, hi some, it was                 .O


apartments. 'The land to the south of the corner pad was to he apartments. None o! the plans

contemplated apartments on the corner pad.
         "
             1 placed a sign near William Joel Bryan Parkway near the intersection with Nash. The

si an was farther west on W iiiiani Joel Brvan and was not on the corner rad. 1 raid for the siun.

Cotircil had no part in placing the sign, although his telephone number was on it. This sign was

placed long before i sent the email on which Plaintiffs claim is based.

         '"The Plaintiff is suinii based on an email 1 sent on December 14. 201 1 . in which J slated

dial I would nuv a commission if he bronchi me a           buyer   on the   pari   of the property which was set

aside tor apartments. In the email. I specifically referenced the apartment land. Additionally, i

set forth that die price had to exceed $7.00 per square foot in order to beat a previous offer and

cover Plaintiffs commission. The email does not offer to pay a commission on the corner pad,

which would fetch a significantly higher price and was not to be used tor a pan me ms.

         ’'Plain:iff never responded to my email to accept          m\   offer, nor did he make any attempt

to clarify what land was referenced in mv email.

         "Plaintiff never asked me to siun a         listing agreement or any      other commission       agreement



until after Plaintiff learned that the corner Dad was beine sold.                     1 never signed arm      six


agreement.


             The transaction on which Plaintiffs claim is based was the sale of the              cornei   pad only.

and not for the apartment land. The corner pad sold tor a price much higher than :>7.00 per

■uuare   loot

         ’Plaintiff   neÿer   listed the property.

         ■'Plaintiff was copied on emails between me and the prospective                 buyer   m order to keep
him informed in his efforts to procure a buyer for the apartment land. Other than being Kept

informed*          Plainin';   was not involved in the transaction. Plaintiff did       not respond to   th: emails.

which were sera to him for his information.

                "‘PjainlilT did not contact   me again until September when he learned that the comer pad

was to be sold. A! that              time, he   asked me to execute a commission agreement resard mu the

corner pad.

                “1 am a custodian of the records of Defendants, and each of them. Ah of the Hxhibits

attached 10 Defendant's Response to Plaintiffs Cross-Motion for Partial Summary judgment are

are made and kent
               *
                                —
                  bv Defendants in the                 regular   course of business. The information contained

therein was recorded by, or from information transmitted by. a person with knowledge of the

acts, events,        conditions, opinions,      or diagnoses recorded therein, at or near the time thereof I "he

records attached thereto are true and correct copies of the originals."



                SIGN HD on




                                                          Paul Levemis, Affiant

                SlIBSCRIfJl.il)     AND SWORN TO BlffORH MH                   01   r.W-w,
  n   V-.   :




                                                                          ■
                                                                              r
                                                           Notary   Public. Stale oi'Texas
                                          NO. 1 3-000672-CV-272

DAVID COTTRELL                                              IN THE DISTRICT COURT
Plaintiff,

V,                                                          2721)   JUDICIAL DISTRICT

BURTON CREEK DEVELOPMENT,
LTD., Bi R ION C REEK
MANAGEMENT, EEC AND BRAZOS
TRACE, EEC
Defendants.                                             §   OF BRAZOS COUNTY, TEXAS

                                 AFFIDAVIT IN SUPPORT OF REQUEST
                                       FOR ATTORN! A S FEES

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

Adams HI. who swore on oath that the following facts: are true:

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

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

ihev are all true and correct.

        *'! am an atrornev licensed to practice law in the Slate of Texas. ! have practiced law in

the Uryan-Colicge Station and surrounding areas for over nine years arm am familiar with the

fees customarily charged in this area for the type of work done in this matter, i.e.. litigation.

        "On February       14,   2013. Defendants employed me in connection with the matter on which

this suit is based. The invoice from my office attached hereto accurately reflects the amount of

lime and attorney tecs (including legal professionals under my supervision) and costs expended

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

os if set forth in full.

        V1 am a custodian of records for Peterson Law Group. The records attached hereto arc

made hv. or from information transmitted b\\ a person with knowledge of the events or
conditions recorded therein. The records attached hereto are made at or near the time of the

events   or conditions recorded therein. The records attached hereto are made and kept in the

regular and ordinal*) course of business.

            "Movant is entitled to recover the reasonable aUorneyN fees requested herein pursuant to

written contract.

            Tt is    niv   opinion that these Sees are reasonable attorney's lees based upon the following

j actors:



                      The novelty and difficulty of the issue involved, the ski!! required to provide li'
                      legal services properly, and the experience, reputation, and expertise of -he lawy*
                      :v: law vers performing the sen ices:
                               .•   i         V.




                      The time and labor invoked to perform the legal services properly: and

                       ['he   fee customarily chanced    in   the community for similar services.

            'Tt is my opinion that attorney s ices in the amount of $5,000.00 would be a reasonable

fee for the services required to perform post-judgment discovery and to satisfy the judgment by

writ of execution and other procedures.

            "It is my opinion that in the event this case is appealed to the court of appeals , attorney's

fees in the amount of S20.000.00 would be a reasonable fee for services performed li. this cause

on appeal to the court of appeals.

            "It is   m\    opinion thru in the event this case is annealed to I he Texas Supreme Court.

additional attorney's lees in the amount of S20.000.00 would be a reasonable lee                    jar services


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

            SI ON Hi) on V                     . 2014.


                                                          H. V. vRustv" Adams 111. A Hi am
     APPENDIX 6

 EXHIBITS ATTACHED
HERETO CAN BE FOUND
    IN THE CLERK’S
RECORD. THEY HAD TO
BE REMOVED BECAUSE
     THE FILE SIZE
WOULDN’T ALLOW FOR
 EFILING. THANK YOU.
                                                                                         IKI/D
                                                                                           5/16/2014 3:43:12 PM
                                                                                     Marc Hamlin, District Clerk
                                                                                      Brazos County, Texas
                                                                                      Kayla Johnson


                                   No. 1 3-000672-C V-272
DAVID COTTRELL                                §                IN THE DISTRICT COURT OF
                                              §
VS.                                           §                   BRAZOS COUNTY, TEXAS
                                              §
BURTON CREEK DEVELOPMENT, LTD.                §
AND                                           §
BURTON CREEK MANAGEMENT, LLC                  §                    272ND JUDICIAL DISTRICT
                           PARTIAL SUMMARY JUDGMENT
       IT IS ORDERED THAT the Motion for Summary Judgment filed herein by Burton Creek

Development, Ltd. and Burton Creek Management, LLC, Defendants, be and is hereby DENIED.

       IT IS ORDERED THAT the Cross-Motion for Partial Summary Judgment tiled herein by
David Cottrell, Plaintiff, be and is hereby GRANTED.
       IT IS ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff, have and
recover summary judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for actual damages in the principal amount
of $50,015.15.
       Signed this




APPROVED AS          TO     FORM       AND        APPROVED AS TO FORM ONLY:
SUBSTANCE:
                                                  PETERSON LAW GROUP
ROBERT G. BAILEY, P C.

                                                  By:                 _
By:_                                                    E.V. “Rusty” Adams, III
   Robert G. Bailey                                     State Bar No. 24045372
   State Bar No. 01536200                               3608 East 29lh St., Suite 112
   3306 Sul Ross                                        Bryan, Texas 77802
   Houston, Texas 77098                                 Phone: 979-703-7014
   Land: 832-485-1338                                   Fax: 979-703-7031
   Cell: 713-819-5534                                   Email: nrsty@braz0slaw7ers.com
   Fax: 713-630-0017
   Email: rbailey@robcrtbailcypc.com              ATTORNEY FOR DEFENDANTS,
                                                  BURTON CREEK DEVELOPMENT, LTD.
ATTORNEY FOR PLAINTIFF,                           AND
DAVID COTTRELL                                    BUR I ON CREEK MANAGEMENT, LLC
                                                                                              Filed 5/16/2014 3:43:12 PM
                                                                                             Marc Hamlin, District Clerk
                                                                                              Brazos County, Texas
                                                                                               Kayla Johnson
                                       ROBERT G. BAILEY, P.C.
                                          ATTORNEY AT LAW
                                             3306 SUL ROSS
                                          HOUSTON. TLX AS 77098

BOARD CERTIFIED CIVIL TRIAL. I AW                                                      LAND: 832-485*1338
TCXAS BOARD OF LEGAL SPETIAI 1/ATJON                                                   CELL: 713 819 5534
                                                                                        FAX: 713-630-0017



                                             May 16, 2014
Clerk, 272nd District Court                                                  VIA EFILE.TXCOURTS.GOV
    r- /%/ih
300 E. 26,h Street, Suite 204
                i-i.



Bryan, Texas 77803

Rc:       No. 13-000672-CV-272; David Cottrell vs. Brazos Trace, LLC, Burton Creek Development,
          Ltd. and Burton Creek Management, L.L.C.; In the District Court of Brazos County, Texas,
          272nd Judicial District
Dear Clerk:

        Please submit the attached order to Judge Bryan for entry. I submitted it to opposing counsel
for approval as to form, but received no response, so I am filing this without his signature.
          Please call me if you have any questions regarding the forgoing.

          Thank you for your prompt attention to this matter.
                                                                  Yours truly,


                                                                  Robert G. Bailey
RGB/bl
cc:       David Cottrell, III
          E.V. “Rusty” Adams, III                                            VIA FFIt.I-.TXCOURTS.GOV
                                                                                                                                                                                           p. I
                     x
                           *     *   Ccmmin i ca: i on Result Report                                  (     Jur. 27. 2014 8:1 1AM )                                      * * *
                                                                                                                              1)        Brazos County                    ?7/ n d Dist,   Court
                                                                                                                              2)



Date/Time: Jun. 27. 2014 8: 07AM
File                                                                                                                                                                                     Page
 No. Mode                             Dest ration                                                                                  Pi (s)                          R e s J11             Not Sent
9842 Memory TX                        91-71 3-630-00 1 7 —-9581832                                                                 P.        1                    OK
                                      ADAMS RU$~Y                                                                                                                 OK




       Reason    f c r    e r ro r
            £. 1 )       Hans Up or 1 ne fail
                                          1
                                                                                                     E. 2)
            E. 3)        No an S W e r                                                               F 4)
            E. 5)        Excee d e d max. E-nrail                s    :e


                                                                                                                                              3SSL
                                                                                                                                                 mrt ru«*>. i>«vi«i CM
                                                                                                                                                 *nw» CawMy. Tan*
                                                                                                                                                  Kayta     an


                                                                                       No. nÿm06?2-<TV-272

                                              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




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