in Re: Innovation Resource Solution, LLC.

ACCEPTED 12-15-00254-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 10/16/2015 9:22:17 AM Pam Estes CLERK NO. FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THECOURT OF APPEALS 10/16/2015 9:22:17 AM FOR THE TWELFTH DISTRICT OF TEXAS PAM ESTES Clerk TYLER, TEXAS IN RE INNOVATION RESOURCE SOLUTION, LLC, RELA TOR Original Proceeding from Cause No. 3-42109 in the 3RD Judicial District Court Anderson County, Texas PETITION FOR WRIT OF MANDAMUS BEAU T. SINCLAIR SBN: 24029835 SINCLAIR LAW OFFICE, P.C. 400 South Broadway, Suite 102 Tyler, Texas 75702 (903) 533- 1005 (903) 533-1379 (fax) E—maiZ.' eﬁle@ sz'rLclairlawtyler.com ATTORNEY FOR RELATOR, INNOVATION RESOURCE SOLUTION, LLC ORAL ARGUMENT NOT REQUESTED NO. IN THECOURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS TYLER, TEXAS IN RE INNOVATION RESOURCE SOLUTION, LLC, RELA TOR Original Proceeding from Cause No. 3-42109 in the 3RD Judicial District Court Anderson County, Texas On Petition for Writ of Mandamus to the 3“ Judicial District Court of Anderson County, Texas PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE COURT OF APPEALS: COMES NOW INNOVATION RESOURCE SOLUTION, LLC, Relator, and presents this Petition for Writ of Mandamus relating to the Order Disqualzﬁzing Jeffrey L. Coe from his representation of Relator, Innovation Resource Solution, LLC. Relator seeks immediate relief from this Honorable Court to Vacate the trial court’s Order Disqualifying Jeffrey L. Coe from his representation of Relator, Innovation Resource Solution, LLC. IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the action pending before the trial court, as well as the names and addresses of all trial and appellate counsel. Relator Relators ’ Trial Attorney INNOVATION RESOURCE Jeffrey L. Coe SOLUTION, LLC Attorney at Law P.O. Box 1157 Palestine,Texas 75802 (903) 723-0331 (888) 651-6851 Fax Relator ’s Appellate Attorney Beau T. Sinclair Sinclair Law Office, P.C. , ,, 400 S. Broadway Ave., Ste. 102 Tyler,Texas 75702 (903)533-1005 (903) 533-1379 Real Parties in Interest Real Parties’ Trial Counsel Calvin B. Smith, Connie M. Smith, James Hankins and Branding Iron Investments, LLC 606 E. Crawford St. Palestine, Texas 75801 (903) 729-2102 (903) 731-4732 Fax Terry Thorn 608 E. Crawford St. Palestine, Texas 75801 (903) 729-6087 (903) 729-7605 Fax Respondent 3”’ Judicial District Judge Hon. Judge Deborah Oakes Evans Anderson County Courthouse 500 N. Church St. Palestine, Texas 75801 (903) 723-7415 iii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ............................................ .. iii TABLE OF CONTENTS .......................................................................... .. iv INDEX OF AUTHORITIES ...................................................................... .. V INTRODUCTION ................................................................ .. 3 RELIEF REQUESTED ........................................................... .. 3 ABBREVIATIONS & RECORD REFERENCES .......................... .. 4 APPENDICES .......................... ..................................... ,, , STATEMENT OF THE CASE .................................................................. .. 4 STATEMENT OF JURISDICTION .......................................................... .. 5 ISSUE PRESENTED ................................................................................. .. 5 STATEMENT OF FACTS ........................................................................ .. 6 SUMMARY OF THE ARGUMENT ......................................................... .. 7 MANDAMUS IS APPROPRIATE ............................................ .. 8 ARGUMENT ...................................................................... ..9 PRAYER .......................................................................... . . 1 5 CERTIFICATE OF COMPLIANCE ....................................................... .. 16 CERTIFICATE OF SERVICE ................................................................ .. 16 CERTIFICATE OF DELIVERY ............................................................. .. 17 APPENDIX ............................................................................................ .. 18 iv INDEX OF AUTHORITIES CASES: Arkla Energy Resources v. Jones, 762 S.W.2d 694 (TeX.App.—Texarkana 1988 orig. proceeding) ................................................................... ..13 Berger v. Lang, 976 S.W.2d 833 (Tex.App.~Houston [15‘ Dist.] 1998, pet. denied) ................................................................................. .. 15 Canadian Helicopters, Ltd. v. I/Wttig, 876 S.W.2d 304 (Tex.1994) ................ .. 8 Carmona v. State, 941 S.W.2d 949 (Tex.Crirn.App. 1997) ........................ .. 14 Cimarron Agric., Ltd. V. Guitar Holding Co., L.P., 209 S. W.3d 197 (Tex. App. — , ,,E1,Paso_20,Q6,,no,,pet,.), .................... .., . . . . . 2. . .2. ,. . _. ., 9, Haggard v. Snodgrass, 770 S.W.2d 577 (Tex.App.—Da11as 1989, orig. proceeding) ............................................................................... .. 12 In re Balzn, 13 S.W.3d 865 (Tex.App.—Fort Worth 2000, orig. proceeding) 12 In re Ford Motor Co., 211 S.W.3d 295 (Tex. 2006) ................................ .. 15 In re Nitla S.A. de CV, 92 S.W.3d 419 (Tex. 2002) ........................ .. 12,13,15 In re Southwestern Bell Yellow Pages, 141 S.W.3d 229 (Tex. App. — San Antonio 2004, no pet.) ............................................................. .. 10 National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996) 11 NCNB Tex. Nat 7 Bank v. Coker, 765 S.W. 398 (Tex. 1989, orig. proceeding) ......................................................................... ..10,13,14 Parker v. Carnahan, 772 S.W.2d 151 (Tex.App.~Texarkana 1989, writ denied) ................................................................................ .. 14 Spears v. Fourth Court ofAppeals, 797 S.W.2d 654 (Tex. 1990) ............. .. 10,11 Terrell State Hosp. v. Ashworth, 794 S.W.2d 937 (TeX.App.——Da11as 1990, orig. proceeding) ......................................................................... . . 15 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .................................. .. 8,12 STATUTES: Tex. Disciplinary R. Prof’1 Conduct 1.06 .......................................... ..9, 10 Tex. Gov“: Code § 22.221(b) ............................................................ ..5 CONSTITUTION Texas Constitution, article V, section 6 ........................................ .. 5 INTRODUCTION The relationship between a party in a lawsuit and his lawyer is one of the most important in law. For that reason, Texas law for 70 years prevents one party from stripping the other of his attorney, unless there is an actual conflict by which the attorney has represented both sides at Various times and one representation is substantially related to the other. RELIEF REQUESTED The Relator, Innovation Resource Solution, LLC, asks this Court to issue a writ of mandamus directing the trial court to Vacate its order of disqualifying their attorney, Jeffery L. Coe. ABBREVIATIONS AND RECORD REFERENCES '3' Innovation Resource Solution, LLC will be abbreviated as Relator. RECORD REFERENCES The reporter’s record was prepared by Ellen Earles, the Court Reporter for the 3"“ Judicial District Court, Anderson County, Texas. A copy of the reporter’s record is submitted as part of the Application for Writ of Mandamus. APPENDICES Appendix 1: Plaintiffs Original Petition Appendix 2: Notice of Appearance, Request for Notices and Def«;1dant’s Original Counter—claim Appendix 3: Motion to Disqualify Counsel Appendix 4: Reporter’s Record from April 13, 2015 hearing Appendix 5: Certiﬁed Order Disqualifying Counsel STATEMENT OF THE CASE On February 21, 2014, Real Parties in Interest Calvin Smith and Connie Smith ﬁled suit against Innovation Resource Solution, LLC for slander of title as a result of a contract for the purchase of real estate being ﬁled in the Official Public Records of Anderson County, Texas. On or about November 4, 2014, Jeffrey L. Coe entered an appearance in the case as attorney of record for Relator Innovation Resource Solution, LLC. APPENDIX 2. On April 13, 2015 a hearing was held and no witnesses were presented at the hearing. However, one exhibit was received by the court in the April 13, 2015 hearing. See Reporter’s Record, attached as APPENDIX 4. On that same date, the Honorable Deborah Oakes Evans, Respondent, entered an order disqualifying Jeffrey L. Coe as attorney of record for Innovation Resource Solution, LLC. APPENDIX 5. STATEMENT OF JURISDICTION This Court possesses jurisdiction pursuant to Texas Constitution, article V, section 6, and Texas Government Code S 22.22l(b) stating that “Each court of appeals. . .may issue all writs of mandamus. .against a. .judge of a district or . . county court in the court of appeals district.” Tex. Gov’t Code § 22.22l(b). ISSUE PRESENTED Whether the trial court abused its discretion when it disqualiﬁed Relat0r’s (Innovation Resource Solution, LLC) attorney of record from serving as legal counsel for Relator and whether this Court should issue a writ of mandamus instructing the district court to vacate its order disqualifying Innovation Resource Solution, LLC’s attorney. STATEMENT OF FACTS Calvin Smith and wife, Connie Smith, are the plaintiffs in the trial court case, Cause Number 3-42109. On February 21, 2014, Calvin Smith and Connie Smith ﬁled suit against Innovation Resource Solution, LLC for slander of title. APPENDIX 1. On August 22, 2014, in another cause (Cause Number 3-42239, styled In Re: a Purported Lien or Claim Against Calvin B. Smith and Connie M. Smith, In the 3“ Judicial District, Anderson County, Texas), Calvin Smith and Connie Smith secured an ex parte Judicial Finding of Fact and Conclusion of Law Regarding a Documentation or Instrument Purporting to Create a Lien or Claim. Cause Number 3-42239 was ﬁled and signed on the same day. Additionally, Cause Number 3-42239 was the subject matter in which respondents and Jeffery Coe had an email line of communication and did not relate to information on Cause Number 3-42109. However, those emails were used to infer Jeffery Coe had gained information in the underlying suit without any testimony at the trial court as to the subject matter of the emails. See Attachments of Exhibit 4 and Exhibit 5. On November 4, 2014, Jeffrey L. Coe ﬁled an appearance in Cause Number 3-42109 by ﬁling a Notice of Appearance, Request for Notices, and Defendants Original Counter-Claim. APPENDIX 2. On March 18, 2015, Calvin Smith and Connie Smith ﬁled their Motion to Disqualify Counsel. APPENDIX 3. A hearing was held on April 13, 2015 on the Motion to Disqualify Counsel. At that hearing, Calvin Smith and Connie Smith were represented by James D. Hankins and relator was represented by Jeffrey L. Coe. See Reporter’s Record attached as EXHIBIT 4. No testimony was elicited at the hearing, however, one exhibit was presented and received into evidence constituting communications between Calvin Smith and Jeffrey L. Coe. See Reporter’s Record attached as EXHIBIT 4, also included at an attachment in APPENDIX 3. On April 13, 2015, the trial court entered an order disqualifying Relator’s attorney of record. APPENDIX 5. SUMMARY OF ARGUMENT There are 70—years of case law that a party to a lawsuit has no standing to challenge his opponent’s choice of lawyer when that lawyer has not represented the party. For policy and sense, Texas courts do not want a party trying to strip his opponent of their constitutionally guaranteed personal attorney relationship and protections, unless an actual conﬂict exists by which the attorney has represented both parties in a substantially related matter. Here, in a slander of title suit, Calvin and Connie Smith sought disqualiﬁcation of relator’s attorney, because the attorney had previously consulted with Calvin and Connie Smith on a matter that involved a Purported Lien or Claim against Calvin B. Smith and Connie M. Smith. This is distinguished from the underlying action in which Innovation Recourse Solution, LLC is defending Calvin and Connie Smiths’ petition alleging quiet title on real property. The trial court abused its discretion when it entered the order disqualifying Re1ator’s attorney since respondents failed to produce any evidence requiring disqualiﬁcation. Additionally, any attorney-client privilege was waived as a result of Respondents’ attorney submitting all communications between the attorney for Relator and Respondents. Unless this Court issues a writ of mandamus, relator will lose its experienced lawyer and counsel of its choice. They have no other remedy. MANDAMUS IS APPROPRIATE adequate remedy by appeal, mandamus will issue to correct a clear abuse of discretion or the Violation of a duty imposed by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. l992). To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839- 840. A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanently losing its substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994). Relator has a justiciable interest in the dispute. Relator is the defendant in the underlying cause and retained Jeffery L. Coe to represent relator in this matter. The trial court has not rendered a ﬁnal order in the matter. If Jeffery L. Coe is disqualiﬁed as the attorney for relator, relator will be unable to be represented by its attorney of choice. Relator speciﬁcally chose Jeffery L. Coe for representation based on the experience and knowledge Jeffery L. Coe has in this area. Innovation Resource Solution, LLC will suffer injury in being forced to proceed in litigation without its chosen attorney. Innovation Resource Solution, LLC has no adequate remedy at law. ARGUMENT In most disqualiﬁcation motions, the lawyer represented both sides to the current lawsuit, triggering concern by the former client, now opponent. The issue then is simply whether the prior litigation is “substantially related” to the currnt one, or whether disadvantageous conﬁdential information will be disclosed. See Cimarron Agrz'c., Ltd. v. Guitar Holding Co., L.P., 209 S. W.3d 197 (Tex. App. — El Paso 2006, no pet.). ISSUE NO. REAL PARTIES IN INTEREST FAILED TO PRODUCE 1: ANY EVIDENCE REQUIRING DISQUALIFICATION. Disqualification is governed by Rule 1.06 of the Disciplinary Rules of Professional Conduct: (a) A lawyer shall not represent opposing parties to the same litigation. (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: (1) involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyers firm; or (2) reasonably appears to be or become adversely limited by the lawyers or law ﬁrm's responsibilities to another client or to a third person or by the lawyers or law f11m’s own interests. (c) A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. Tex. Disciplinary R. Profl Conduct 1.06, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998). Rule 106 warns against offensive use of disqualiﬁcation by one party against an opposing party in litigation: “Such an objection should be viewed with great caution . . . for it can be misused as a technique of harassment.” Tex. Disciplinary Rules of Prof. Conduct 1.06, cmt. 17. The Supreme Court also takes a dim view of offensive disqualiﬁcation motions, explaining, “The [Disciplinary Rule] comments . . . vehemently discourage the use of motions to disqualify as tactical weapons, as well as the unnecessary calling of an opponent’s lawyer as a witness to invoke the rule’s prohibition.” Spears v. Fourth Court ofAppeals, 797 S.W.2d 654, 658 (Tex. 1990). Accordingly, in ruling on a motion to disqualify, the trial court must strictly adhere to an exacting standard to discourage use of disqualiﬁcation as a dilatory trial tactic. NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex. 1989); In re 10 Southwestern Bell Yellow Pages, 141 S.W.3d 229, 231, (Tex. App. — San Antonio 2004, no pet.); see also Spears, 797 S.W.2d at 656. There is a two-part test for offensive disqualiﬁcation motions such as the Smiths’: (1) Is there an actual conﬂict in which the lawyer has at one time represented both parties to the case? (This rule triggers the standing requirement.) Only if the answer is yes do we proceed to the second question: (2) Is the current litigation “substantially related” to the prior litigation? See, e. g., National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 132, 39 Tex. Sup. Ct. J. 698 (Tex. 1996); Spears v. Fourth Court ofAppeals, 797 S.W.2d 654, 656 (Tex. 1990). In the case at hand, counsel for respondents offered email correspondence without providing any insight or description about the communication. The Court then looked at a few emails and inferred that these emails were substantially related to the matter at hand. At the April 13, 2015 hearing, no testimony was elicited on the nature of the emails or whether they were in anyway related to the case at hand. As previously mentioned, the right of a party to choice the counsel that they believe gives them the best opportunity in litigation is a very important right. Simply examining emails that respondent believes to be substantially related to a different matter should not rise to the level of disqualifying an attorney. The trial court does not speciﬁcally identify the subject matter of communication or conduct that relates to the current litigation. Prior emails directed at a current party in opposition without 11 any background information cannot be proof that the discussions related to the same matter. This Honorable Court should vacate the order disqualifying attorney as no evidence was presented that would lead the trial court to conclude that the matters were substantially related or that a conflict existed. ISSUE N0. 2: ANY ATTORNEY CLIENT PRIVILEGE WAS WAIVED BY REAL PARTIES IN INTEREST. The Texas Supreme Court has established a two-pronged test in order to determine whether a relator is entitled to the remedy of mandamus: 1) the trial court has clearly abused its discretion; and 2) relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833 839-840 (Tex. 1992). The granting or denial of a motion to disqualify is reviewable by mandamus. In re Bahn, 13 S.W.3d 865, 872 (Tex.App.~Fort Worth 2000, orig. proceeding). The disqualification of counsel also renders remedy by appeal inadequate. In re Nitla S.A. de C. V, 92 S.W.3d 419, 422 (Tex. 2002). There is also no interlocutory appeal available from the trial court’s interlocutory order on a disqualiﬁcation motion. Haggard v. Snodgrass, 770 S.W.2d 577, 571 (Tex.App.—Dallas 1989, orig. proceeding). The standard of review to apply is whether the lower court committed an abuse of discretion. Walker at 839. A clear abuse of discretion occurs when a court reaches a decision so arbitrary and unreasonable so as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law.‘ Ia’. 12 Attorney disqualiﬁcation should only be applied judiciously and with caution since it can be used as an instrument of harassment. Arkla Energy Resources v. Jones, 762 S.W.2d 694, 695 (Tex.App.—Texarkana 1988, orig. proceeding). The proper procedural mechanism for challenging an attorney’s representation of a client is a motion to disqualify. NCNB Tex. Nat’! Bank v. Coker, 765 S.W. 398, 399 (Tex. 1989, orig. proceeding). Additionally, in deciding whether disqualification of counsel is proper, the trial court must determine whether the matters embraced within the pending suit are substantially related to the factual matters involved in the previous suit. NCNB Tex. Nat 7 Bank at 399-400. The movant must establish that the opposing lawyer’s conduct caused actual prejudice that requires disqualiﬁcation. In re Nitla S.A. de C. V., 92 S.W.3d 419, 422 (Tex. 2002). The movant must prove the existence of a prior attorney—client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that conﬁdences revealed to his former counsel will be divulged to his present adversary. NCNB Tex. Nat’! Bank at 400. Real Parties in Interest failed to produce any evidence that any prejudice resulting from the alleged limited communication that occurred. Trial counsel for Real Parties in Interest could not in good faith have introduced all email communications at issue with the belief that attorney—client privileged information was contained therein. Relator believes that the only reason for the attempt at disqualification is to prevent Relator from exercising his preference 13 and choice of trial counsel, and not because any legitimate argument exists as to grounds for disqualiﬁcation. Texas courts have found that a movant “must show that there is a speciﬁcally identiﬁable appearance of the occurrence of improper conduct and the likelihood of public suspicion or obloquy outweighs the social interest in obtaining counsel of one’s choice.” Id. At 237 (quoting Haggard v. Snodgrass, 770 S.W.2d 577 (Tex.App.—Dallas 1989, no writ). Real Parties in Interest failed to show any actual prejudice resulting from opposing lawyer’s service in the underlying cause. Further, it is not enough that a meeting occurred between the purported client and attorney or that the attorney makes statements to the alleged client regarding possible legal consequences. Parker v. Carnahan, 772 S.W.2d 151, l56 (Tex.App.—Texarkana 1989, writ denied). In the case at hand, Calvin Smith and Corrie Smith, admitted into evidence all alleged attorney-client privileged materials, thereby waiving any attorney client privilege. On April 13, 2015, the communications between Real Parties in Interest and opposing attorney were submitted into evidence by their attorney James D. Hankins. The power to waive the attorney client privilege belongs to the client, his agent, or agent acting with the client’s authority. Carmona v. State, 941 S.W.2d 949, 953 (Tex.Crim.App. 1997). Any privilege that may have existed was waived when the Real Parties in Interest, by and through their attorney of record, voluntarily submitted the alleged privileged information into evidence without objection and 14 without any limitation on its accessibility or use. In re Ford Motor Co., 211 S.W.3d 295, 301 (Tex. 2006); Berger v. Lang, 976 S.W.2d 833 (Tex.App.—Houston [lst Dist.] 1998, pet. denied); and Terrell State Hosp. v. Ashwort/1, 794 S.W.2d 937, 941 (Tex.App.—Dallas 1990, orig. proceeding). The documents are now public record. Disqualiﬁcation is a harsh remedy, and in considering a motion to disqualify, “the trial court must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic.” In re Nitla SA. de C. V., at 422. This Honorable Court should vacate the order disqualifying attorney as any attorney- client privilege was waived by Calvin and Connie Smith. PRAYER WHEREFORE, PREMISES CONSIDERED, for all the reasons briefed and set forth herein and in the interests of justice and fairness, Relator praysthis Court grant its Petition for Writ of Mandamus, and order the 3”‘ Judicial District Court in and for Anderson County, Texas, to Vacate the order disqualifying Jeffrey L. Coe as attorney for Relator and for all further relief to which Relator is legally entitled. Respectfully submitted this day of Ocotber, 2015. SINCL R LAW OFFICE By: Beau T, Sinclair SBN: 24029835 400 South Broadway, Suite 102 Tyler, Texas 75702 (903)533-1005 (903) 533—1379 (Fax) E—mail: beau@4§z'nclairlawQler.com 15 CERTIFICATE OF COMPLIANCE COMES NOW, Beau T. Sinclair, Attorney for Relator, and hereby certiﬁes that the Petition for Writ of Mandamus contains 3,740 words including the caption, identity of parties and counsel, table of contents, index of authorities, statement of the case, issues presented, signature, certiﬁcate of compliance and certificate of delivery. Beau T. Sinclair \ Attorney at Law CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this pleading has been served on Beau 1»/" each attorney of record or parties as required by the Texas Rules of Civil Procedure. Sinclair Attorney at Law 16 CERTIFICATE OF DELIVERY A true and correct copy of the foregoing instrument has been served in accordance with the Texas Rules of Appellate Procedure via Fax Delivery on this the W“ day of October, 2015, upon the following: VIA FACSIMILE DELIVERY Honorable Deborah Oakes Evans 87”‘ Judicial District Judge 500 N. Church St. Palestine, Texas 75801 VIA FACSIMILE DELIVERY *JaI—nesHar—11ub:xuRmmo:Amusoacaxw»’Fﬁ=tamawn3 mam, I Geoag,eBlo<:k zssx. 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K‘: ‘n:r;:’L}: 95%;) Pif ' I’ cwsz NO.§;_§z,;m * ’-‘55 “ f J CALVIN n. smrm and camwm M. . _" IN "rm: DISTRICT c0I3m>i2 \ sMnn,1>LA1NT1ws § m if M ' 4’; § V, .§ 3"’ JUDICIAL DISTRICT § INNOVATION RESOURCE § summon, LLC § pgmzqmsmr § ANDERSON CGUNTY, TEXAS , ,,,,,_,,,,m fI(13ZHEﬁOKDRABLE,.IU}1G3ELDESAIDJ30I1RT'H—r NOTICE OF APPEARANCE AND REQUEST FOR NOTICES NOW COMES JEFFREY L. 0013 and hercby ﬁles this Notice of Appearance of record as legal counsei for INNOVATION RESOURCE SOLUTION, LLC, and Request for Nesices. JEFFREY L. (JOE hereby requests that tlwcourt and parties send natice of any ﬁxture. hearings or action that is taken in tbs abovc~styied case, and that any pieadings 0!‘ other documentatien ﬁled of reccrd in this cause he saw: by the party ﬁiing said document to JEFFREY L. COB as attonvzy of record far INNOVATION RESOURCE 'SOLU'i‘XON, LLC. DEFENDANT’S ORIGINAL COUNTER-CLAIM NOW COMES fNN€)VA’1‘iON RESQUKCB SOLUTION, LLC, a Texas Limited Liability Company, hereinaﬁer called COu.ntcr~P1aI’ntiff,, complaining of and about CALVIN B. SMITH, hereinaﬁer called Counter-Defendant, and for cause of agction shuws unta ths: Court the fotlmvingz PARTIES AND SERVICE l.— Cour:ter~Pla.in%iff} INNOWXTION RESOURCE SOLUTION, LLC, LLC, is a Texas Limited Liability Company daing business in Anderson Couaty, Texas. 2. Defendant CALVIN B. SMITH is 2 Texas msiden: that may be serve& with has reiwmect copyofa BEFENDAN'l”’S ORIGINAL COUNTER—CLAIM Appen-9: X Page ~~~ ;z.:maz an if: £1 ezzcsz -".’xx::::?.~,',Ta:as Z§f1rtl'i':iC192tic 3 process pursuant to me Certiﬁcate of Service belaw. JURISDICTION AND VENUE C<:unte:r»P1aintiﬁ' stipulates m the. pleadings an $33: indicating this com has jurisdiction and venua ofthis matter. FACTS 4. On or about January 11, ZGE4, Counter-Plaintiﬁ" entered into an Unimproved Proyexty Contract for the purchasa of 5.67 acres of land located at CR. 453, Anderson Caxmty, ‘Fens. The contract contained speciﬁc provisions relating to theﬁnancing of the purchasc ofthe property and was prepared by Counter-Defendant Calvin B. Smith. Over the cause of dea!-ing between Cou1:;'ter—P1aint$ff and Coxmtet-Defendant, Counter-Defendant held himself out to be a Sicenzmd real estaxs: agent and that by: bad specia§ skills and knowledge regarding and relaﬁng to real estate transactions. Counter-Defendant, had previously drafted real estate sales contracts- between aifpames and had Eads :11: minus representations regarding his gﬁeciai skills, knowledgg and expertise. Counterﬂaintiif nsiied on time representations and executed the contract preparexi by Counterﬂcfcndmt with full axpectaztions to ‘purchase the subject property. Counter~PIainﬁff became aware when the cantract was repudiated. by Counterﬁefenéiant that in fact Ccunicr-Defendant was not a Iioenm real estatae agent but was fraudulently using his fathefs rcai estaxe license since they both have the same name. Count::r~}’1aintifz“ reiied to his dwimem: on the, representations made by Counter-Defendant regarding his special skiils, knowlcdge and ‘expertise and tiaat the agreemenz that Cotmter-Defendant pmpar»-:é~a.nd executed conferred spseific rights relating to the pszrclxase of the property when in fact it is new claimed that the agmcment dié not convey any rights in Counter-i’1aintiﬁ‘ for the purchase of the property. 5. Cmzntm-PIaintiﬁ‘ contends that Cmmt,::~Defendant has. arbitrarily and capriciousiy mgated the Isms of the uontrac: véiich Counter-Defendant prepared. Ceunter- Defendant disregarded the terms sf that express onmract and tin veriuai and mitten repzesenmiona made to Counte:—Plaimiﬁ°, and blatantly has refused to comply with the terms of the contract. Cmmner-Defendant engaged in a continuous course cf unconscionable actions by taking advantage of the dispamc bargaining position of Counter~Plaimi£f from the inception of the agreement through the date of th: ﬁﬁng ofthis counterciaim. I)l3FENl')ANT’S ORIGINAL CGUNTER-CLAIM 6. Counxer~P!a£ntiﬁ‘ had eqjeyed a Eongstarnding and successful business reiaticstxsiaii’ with Counter-Defendant pxior to execution ofthe contract, and but far the promise ofthe contract executed bestween the parties, Counter-Plaintiff would never have committed the time, msomm and energy into coxnpliance with the terms and nonditéons set foth therein and Wonk! have sought out legal counsei to prepare his own real estate sales contract. Counter-Defezudanfs faihtre ta stand by the represemations made: :0 Counter-Plainﬁﬁ‘ has nesuited 3:1 substantia} ﬂmcmciai injury to Counter~P!aintiff. COMMON LAW FKAUB 7. In addition to the bmach of contmct set forth above, Counter-Plaintiff farther shows that Co1mter~Defendant made material false representations to Cotmter-Piaintiif with the knowledge of their falsity or with realdess disregard of the truth with the intention that such neprcsentations be acteé upon by Counter-Piaimiff, and that Counter-Piainziff reiied on these represmtations to its detriment. Namely, that cozmiés-zrxaimifr vmuld pmchase the subject property from Counter-Deferxéant and that Countewbefewiant was preparing a valid, enforceable writtan real estate sales agreement which has now been claimed to be invalid by Coun.ter~ Defendant and that Counter-Defendant possesseé special skins, expertise, and knowledge in relation to real estate sales andtransactions sinee he was a licensed mat estata agent when in fact he was frauduiexxﬂy using his fauLher’s reai esmte sales lioetuse. 8. Coux1ter~PlaintiPf wouid further show that Countewbefendxnt com-salad or failed to disclose material facts within thc Icnowiedge of Counter-Defeniiaut, that Counter-Defendant knew that Counter-Plaintiﬁ‘ did not have knowledge of the same and éid not have. equal 0pp<)1'£1mi£y to discover the truth, and that Counter»~Defendam mended to induce Ce:mter— I’lair_1t':ﬁ"to enter into the transaction made the basis efihis suit by such concealment or faiiure to disclose. 9, As a pmximazte msult of such fmki, Counter-Plaintiff sustained damages within thi§ court"s3‘urisdimianai limits. NEGLIGENT MISREPRESENTATION 10. Counter—PlaimEﬁ‘ wouid, show in the alternative the: Co1mt:r~Def’endan: supplied ~ false infonnation in the course af said Cmm£cr«DeR:ndazi£'s business, prufession or employment, or in the course of at mxnsaction in which Countepﬂefendant had a pecuniary ixzterest, and am: such information was suppiied by Counts:-Defendant for the guidance of Comm,-r—P1aimiffin the - mma. corsectzxepyafa fozmsmz an Sic tf DEFENDAN'I“’S ORIGINAL COUN‘X‘ER~CLAiM 5 P385 3 ~. transactiens described hercinabove, Cm.zntervDefendant fadlcd to exercise reasonable care or competence in obtaining or commxmicazing such information. Ccanter~Plaintiff avers that Commzcxviﬂaintiﬁ‘ suffered pecuniary loss which was proximately caused isy Cozmter«P§aintiﬁ‘s justiﬁablc rciiance on such information. ll. Counter-Plaimiﬁ" ﬁmcrefore asserts a cause of action for negligent misrepresent.-man against Cmmter~Def:rzdant, as provided by __'l;y}_g;,g,_S}_qg.a_§, 825 S,W.2d 439 (Tex 199:). BREACH OF CONTRACT ll Counter~Plaimiff would further show that the actions and/or emissions of Defendams described hercinabcve constimte bmch of contract, which proximately caused the direct and conscquemial damages of Ccuntcrmaintitf described hcrcinbclow, and for which Ccmmcr-Plaintiif hereby sues. DECEPTIVE TRADE PRACTICES: l3. Counter-Plairztiff would show that Ccuntcrﬁefcndant engaged in certain false, nﬁsleading and dcceptﬁve acss, practices and/er omissions actionable under the Texas Deceptive Txade Pmcﬁccs ~ Consumer Protection Act (Texas Business and Commerce Code, Chapter 17.42, §t___s_gg.), as alleged hcrcinbeiow. 14. ms . c x =..»_ , .-. .. .3. -_ ‘ o 1-,_." giggﬁgn, Countenbcfendanz engaged in an "uncoxxsciothableactioxt or coursc of action“ to the detrimcnt of Countcr-Plaintiff as that tam is deﬁned by Section 1145(5) cf the Texas Business and Commerce Code, by taking advantage cf the lack of knowledge, ability, experience, or capacity of Comm-.r»P1ainﬁﬁ‘ to a grossly unﬁt}: degree. 14. Defendant violated Section 17.4602) of the Texas Business and Commerce Code, in that Defendant: 8:) caused confusion or misunclarstandlng as In the source, sponsorship, approval, or certiﬁcaﬁon ofgoods or scrviccs; (32) mprcscnted that goods or servicw have spcnsomiﬁp, approval, charactezrﬁstics, ingredients, uses, beneﬁts, or quantilies which they do nu: havc or tha’:’ a person has a spcnscrship, appmval, staius, aﬁiliation, or conncction which he does not; (c) rcprcscnted that an agrecmcnt confem or involves ﬁghts, remedies, nr obligations which i: does no? have or involve, or whlch are prohilsited by law; and nzpaxnarws omcman COUNTER-CLAIM (e) faifed to disciose infermation concerning goods or services which was known at the time of the transaction with me imcmion to induce the consllmﬁr 31110 K transaction into which the consumer would not have esxtewd had the information wen disclosed. I5. Ccumcr~PIa§ntiff woukl Show that the ants, practices andfor omissions complaineé ofwere the producing cause of Counter-Plaintiffs damagea. 15. Contact-Plaintiff wouid ﬁzﬂher show the, acts, practices and»,/at omissions complained of under Section 17.4~6(b} of the Texas Business and Ccmmerce Cocie were rciied upon by Counter-Piaintiff t0 Coun£er~PIaintif§‘s detriment. 17. Coumer—P1aintiff‘ was unahie to provide written notice to Coumer~Def:ndani sinca suit was initiated by C0untervDefendant against Counter—P1aintiffami the case is currently set far aria}. I«:c0No1viiTC AND ACTUAL uuixens 18. Cor.mter—¥’lain1iﬁ' sustained the economic and actual damages as a resuh ‘cf the actions andlcsr amissicms of Countewnefendants éescribod hereinabove within the jurisdictional limits of this court. MU LTEPLE BAMAGES 19. As alleged hereiuabove, Crmnter-Piaintiﬁ‘ wouié show that the false; misleading and dcceptive acts, practices and/or omissiens cpmplained of herein were committed "1mowing!y“ in that Couater~Defenc1ant had actual awareness of the falsity, deception, £3: unfaimess efsucix acts, practices, and/or eamissions. 20. Couutsr—P1ainti§° further avers that such acts, practiees. and/or omissioxis were committed "imemional1y“ in mat Comxtex-Befexzéanl speciﬁcaiiy intcndcd that Count-.r~P1aintiﬁ' act in detrimental reliance on the wsity or Ciacepticn or in detrimental ignorance of the unfaimess. 21. Therefbre, CounI:er~P$aimiﬁ‘ is entitled 1:: recover rrmitiplc damages as provided by I7.5G(b}{l} 91' the 'E‘exas Business ami Commerce: Coda. EXEMPLARYDAMAGES 22. C4m‘ntar~?1aimiﬁ' wouid fin1I:er show that the ants and omissions of Counter. Defendant complaﬁseé cf herein were coxnmitted kn-owingiy, wilifully, intentionally. with aetual awmness, and with the speciﬁc and pmdetemxined inxeminn of enriching said Counter» D131'<’ERI}ANT’S ORIGINAL COUNTER-CLAIM Defendant at the expense of Cuunter-Piaintiff. In order to punish said Cuunu:r~Defendant for such unccnscionabic orverreaching and to deter such asthma azxdler omissions in the ﬁxture, Counter-Plaintiff also seeks recovery ﬁom Counter-Defendant fur exemplary damages 33 pmvissed by Section 4! .0030) ofrhe Texas Cﬁvil Practice and Remedies Code. ATTORNEYS FEES 23. Request is made for ail costs ané xeascngbie and mtcessary attomeys fees incurred by of on behalf of Counter-Piaimziff herein, including :11: fees necéssary in the event of an appeai of this cause to the Court of Appeals anci the Supreme Court 0:“ Texas, as the Court deems equitabie and just, m provided by: (a) Chapter 38 of ﬁlm Texas Civil ¥'i*aetic<: and Remedies Code; (19) the Texas Deceptive Trade Pmctices Act; and (1)) common law. PRAYER wmannroxs, PREMISES CONSIDERED, Plaintiﬁ‘ mspecifuily prays that the Defendant be cited ts appear and answer herein, an-i than upon a ﬁnal hearing of the cause, judgment be catered for the Plaintiff against Defendant for the ewnomic and actzsai damages requested hcreinabovc in an amount in cxmss of the minimum jurisdiotimral limits of the Court, togethcz with prejudgment and postjudgmerst interest at the maximum rate auoweé by iaw, attorney's fees. costs of court, and such other and ﬁxrther relief to which the Haintiff may be ~ entitled at law or in equity, whether pied or unpled ~ Reapectfuily submitted, ~~ Attamey at Law ” Cy State: Bar No. 24901902 1000 N. Church St. PO. Bax I 15 7 Pafestine, TX 75802-1 £57 T61. (903) 723-6331 Fax. (388) 65143851 Email: jcff@¢oe§awfirm.oom Attﬂrney‘ for Com1t:*:r~Pfaintif‘f ~‘,;¢:w.v N 49 ~ W_ 4‘ A _g-.:§g’¢E::,:"‘s:a;$n.a: 333“ .&-‘mi :~ nnmxngwrs omemgn cotn~m:R—cLmM , Page 6 of 3 Pages g§g;;;_g;cA'rg;_ gr sggx;Q}; on Novstmber 4, 2014 2 true and correct copy cf the foregoing Defendanfs E certify 3:31 Originai Counter-Chaim was served pmsuant ts; tbs Tsxas Rules of Civil Procedure. on opposing couxzsel. DEFENDANT’S ORIGINAL COUNTER-CLAIM ?age 7 of 8 Pages mew ;-29 ~ ~~~ ”‘ “.S’v“A?e'Gs.1§x_gs Qeearms » M2: 3my ‘: .57‘¢‘_«9LE$‘ .6.t§Rx.e! ossrasc, TEXA$T3Q‘34§%E3Wc§RTiE?»1§4§$ ‘€145 ~ ooz>s?.m¥2¢e«> wrote: ""Ml‘."Sl"'riith.’ ’ ' ’ ’ ” ’ " ' ' ’ " ' ’ " ’ ’ " " You sent me everything need to I tile the motion to remove the irnproperlinvalid lien. Just need to make payment arrangements and lwitl ﬁle this tomorrow. will need you to sign the veriﬁed pleading. have court in I I the District Court on Friday and will approach the judge with the order then and get it signed and ﬁled and back to you. Jeffrey L. Coe Attorney at Law Law Ofﬁce of Jeffrey L. Coe 1000 N. Church St. (75501) P. O. Box 1 157 Palestine, TX 75802-1 157 (888) 651-6851 Toll Free (903) 723-0331 Phone (868) 651-6851 Fax Email i§ff@coe|awﬁrm.cgm CONFIDENTIALITY: This email. and any attachments. are intended only for use by the addressee or addresses named herein and may contain legally privileged or conﬁdential information. if you are not the intended recipient of this email, you are hereby notiﬁed that any dissemination, distribution, or copying of this email or of any attachments hereto is strictly prohibited. If you have received this email in error. please delete the original. any copy of this email or attachment. and any printout thereof and notify the sender Immediately. NOT INTENDED AS A SUBSTITUTE FOR A WRITING: Notwithstanding the Unifonn Electronic Transactions Act or the applicability of any other law of similar substance or effect. absent an express statement to the contrary herein, this email message, its contents. and any attachments are not intended to represent an offer or acceptance to enter into a contract and are not otherwise intended to bind the sender. the Law Ofﬁce of Jeffrey L. Coe. any of its clients. or any other person or entity, From: Calvin smith om ’ ; I n I: sent: Tuesday, February 11, 2014 11:31 AM To: Jeff Coe Subject: Current Survey Exhibit A Page 1 of 5 On Monday, February 17, 2014 4:54 PM, Jeffrey L. Coe wrote get intouch with Jackson. ' ’l’lt Jeffrey L. Coe Attorney at Law Law Office of Jeffrey L. Coe 1000 N. Church St. 05801) P. O. Box 1157 Palestine, TX 75802-1157 (888) 651-6851 Toll Free (903) 723-0331 Phone (888) 651-6851 Fax Email jeff@g9_e gwfrrncgm CONFIDENTIALITY: This email, and any attachments, are intended only for use by the addressee or addresses named herein and may contain legally privileged or conﬁdential information. if you are not the intended recipient of this email, you are hereby notiﬁed that any dissemination, distribution, or copying of this email or of any attachments hereto is strictly prohibited. If you have received this email in error, please delete the original. any copy of this email or attachment. and any printout thereof and notify the sender immediately. NOT INTENDED AS A SUBSTITUTE FOR A WRlTtNG: Notwithstanding the Uniform Electronic Transactions Act or the applicability of any other law of similar substance or effect. absent an express statement to the contrary herein. this email message, its contents, and any attachments are not intended to represent an offer or acceptance to enter into a contract and are not otherwise intended to bind the sender, the Law Ofﬁce of Jeffrey L. Cue, any of its clients. or any other person or entity. From: C Smith [mallto:aggie|ending@gmali.com] Sent: Friday, February 14, 2014 4:56 PM To: jetT@coelawﬁrrn.com subject: Fwd: Relase of EMC Please see below. We thought we had this all worked out, but looks like we are wrong. spoke to I Jackson Hanks and he said he will discuss with you the situation. want to make sure we get this I handled so his underwriters will issue a title policy on the cash sate. ‘ ExhihitA Page 2 of 5 Thanks, C Begin forwarded message: From: "Tim Wagner" Date: February 14, 2014 at 1:28:15 PM CST To: , "mark mullin" Cc: "Joy Phillips“ Subject: RE: Release of EMC Calvin & Mark, i am in receipt the Release of EMC by your Title Company. innovation Resource Solution (iNNOVATi0N) is willing to entertain a monetary settlement for our Release of Claim. As you are aware, this matter has weighed heavy on my heart and there has been much discussion regarding personal beliefs and desires to be Christ-like both in spirit and nature, believe that applies to I all parties. I also have responsibilities to our investors. The property is both strategic and vital to INNOVATlON's agriculture plan. with regards to the Smith's, lNNOVATi0N has suffered damages and is entitled to their right to purchase the land as per the contract or be compensated for damages. As Mark stated, “Calvin never should have taken it this far’ but that was Calvin’: choice. Calvin is experience and licensed in real estate transactions, agricultural lending, and should be held accountabie rather than rewarded for his actions. Absent ofa Settlement, INNOVATION will continue to pursue its CLAIM ofthe property and pursue every legal remedy at its disposal by all lawful means that have been previously stated by our Legal Counsel. Respectfully, T«'»n~ A. W454-ea Innovation Resource Solution, LLC 6300 Riglea Place, Suite 100 Fort Worth, TX 76116 Ph: (972) 793-2298 e—fax: (866) 354-8604 The information in this message is the property of innovation Resource Saiuuonr LLC. This message is inlended only ior the use at the addressee named above and may contain legally privileged andlor conﬁdential iniorrrrauon. if you are not the intended recipient of this message. you ara hereby notified that any use. dissemination, distribution orcopying of this message is strictly prohibited. if you receive this message in error. please notify us immediately by telephone or return s~ mail and delete the massage. all copies thereof and any zmzchrnensa We thank you for your cooperation. Exhibit A Page 3 oi 5 From: mark muilin imaiitmmarkmuliinQhotmailcom Sent: Thursday, February 13, 2014 2:59 PM To: gimwagner@i;esogrce§_qlgtion.;gm Subject: FW: Release of EMC Tim: in answer to your question about what are you being asked to do, the title company is asking that you execute this document and have it notarized. Let me know ifl can help. Thanks, Mark Muiiln Subject: Fwd: Release of EMC From: aggieiending@gmaii.com Date: Thu, 13 Feb 2014 10:48:16 0600 To: rnarkmuliin@hotmaii.com FYI Begin forwarded message: From: Rebekah Cannon Date: February 13. 2014 at 9:01:54 AM CST To: "aggielending@gmail.com" Cc: Mary Arie Subject: Release of EMC Mr. Smith, Here is the Release of Earnest Money Contract. Mary asked me to forward this to you. if you have any questions, please let us know. Thank you, Rebekah Cannon Escrow Assistant Texas First Title Company, LLC 601 E. Lacy Street Paiestme, Texas 75801 903.723.5393 - Ofﬁce 903.731.4739 ~ Fax Rebekah,cannon@texasﬁrstt§tie.corn Exhibit A Page 4 of 5 CONFIDENTIALBTY NOTECE: This message ls fur the beneﬁt of the named person(s) only. It may contain cunﬁdenzéal, proprietary or legally privileged information. Nu conﬁﬁentialiiy or other pfwilage is waived or lost by any mis-transmission. Do not directly or indirectly use. disclose, dlstribuxe, print or copy any part of the message xransmllted if your are not the intended raclplent. Ifyou receive thls message in error, please lrru-nediately delete it and all copies of it fram your system. destroy all hard copies and notify the sender of its receipt. sj3l;rm;"%a;;rl.a"ls;a1l:;;‘;;;;;g;g.;. Checked by AVG - www.avg.com Version: 2014.0.4259 I Virus Database: 3697/7088 - Release Date: 02/12/14 Exhibit A Page 5 of 5 APPENDIX 4 ..x REPORTER‘S RECORD VOLUME 1 OF 1 VOLUMES N TRIAL COURT CAUSE N0. 3-42109 m CALVIN B. SMITH, CONNIE M. ) IN THE DISTRICT COURT a SMITH, ) m ) 3 Piaintiffs, 3 m ) VS. ) ANDERSON COUNTY. TEXAS N ) 3 m INNOVATION RESOURCE 9 S0£UTION, L.L.C., } m 5 Q Defendants. ) 3RD JUDICIAL DISTRICT —-\‘—ls ) ..\. .4 IR) .4 OJ .3 41 .3 U1 ...\ CD .4. ‘*4 .4». (X7 ._s. (Q N0 On the 13th day of Aprii, 2015, the foT3owing N1 .:u proceedings came on to be heard in the above-entitied NN and «numbered cause before the Honorab1e Deborah Oakes N CA). Evans, Judge presiding, haTd in Palestine, Anderson N -h County, Texas; l\3 U! Proceedings reported by machine shorthand. ...\ APPEARANCES FOR THE PLAINTIFF8: Mr. James Hankins LAW OFFICE OF JAMES D. HANKIN5 606 East Crawford Street Pa1estine, Texas 75801 Telephanez (903) 729-2102 —‘-$COO9\§a3C)'1-§~(D3f\) SBOT No. 08912300 FOR THE DEFENDANTS: Mr. Jeffery Coe LAN GFFICE OF JEFFERY COE 1000 North Church Street ..A..a. Palestine, Texas 75801 Te1ephone: (903) 723-0331 SBOT NO. 24001902 ...x M) ....A (10 .2; -Ph ....x O‘! .4 O‘) ...a -3 ..x 03 .3. (O B) O N _.x N) N! Ix: 60 N -(X M 01 ...n INDEX VOLUME 09 1 VOLUMES 1 P0 (MOTION TO DISQUALIFY) (J3 Page V01. APRIL ‘I3, 2015 -5- Court‘s Raﬂing . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . 5 1 0301 End of proceedings . . . . . . . . . . . . . . . . . . . . . . . . .. 6 1 Court Report:-ar's Certificate . . . . . , . . . . . . . . .. 7 1 -‘:©€QUD‘~{ EXHIBIT INDEX ..;.a. PLAINTIFF8‘ NO. DESCRIPTION OFFERED ADMITTED VOL. .4. N A E—ma1'1s 4 5 1 _s. (13 J>» .4 ..x (J! .a G} _>. ‘J A 00 .1 {O MO N ..\ MN NW N 4¥ M 0'! ,3. P R G C E E D I N G S (Open court) THE COURT: Okay. I know I got a —- iet me go ahead and ca11 this one because I know it’s going to take a1} of a second? and than 1'31 do the p1ea. Ca1vin Smith and Innovation Resource. OCOO0‘*~lC7)U‘l3?»0DX\) MR. HANKINS: Yes, Judge. THE COURT: The rest of y‘a11 can have a seat. _x MR. HANKINS: I represent Mr. Smith. -3 ...x THE COURT: ?hat‘s 3«4210Q. Let me have ..x N the file. Okay. I haé a hearing on a Motion to ...x 03 Disqua11fy Mr. Coe as counsel. Correct? .3 -33 MR. HANKINS: Correct. ...x (.71 THE COURT: That was -- there was a writ ..\ C) fiied? ...s. N MR. HANKINS: Yes, he took ~~ on procedurai .4. W matters, and it's been -- that waa held as moot because ....x (D the Court entered an order rescinding that first order l\) O so we couTd do it and get the evidence in. N) .4 THE COURT: Okay. And what is the MN evidence? N (40 MR. HANKINS: It‘s Exhibit A. It's the N «[3» e-maiis from Mr. Cue ta my a11ent. IN? C}! THE COURT: Those are the ones that I .1» actually a3ready reviewed, correct -- MR. HANKINS: Yes. MR. CUE: Yes, Your Honor. THE COURT: -- when I made my 1nitia1 deciséon? MR. HANKINS: Right. MR. CO5: Yes, Judge, you've a1ready aomoawmmhwm reviewed those, and I don‘t have any objection to the e-maifs. ...a THE COURT: Okay. Exhibit A ﬁs admitted 7 7 7 i K K ._\ into avidence. ._\ N ﬂR. HANKIRS: So the test is this is ....x W substantiaT1y re1ated tn the very case ~— _A $3 THE COURT: It is, I mean, and I’d Tike to .4 U! keep you cm the case, Mr. Coe, but I just —~ I thought ...n U! ha was disquaTified. That's why I entered the arder to ....n ‘*4 begin with. I stiii think you‘re disquaiified. .3 G3 MR. 805: That‘s fine, Judge. I .a. (O understand. M0 THE COURT: So I'm signing the order R3 .4 d€squa1ifying you, and then hbpefu11y we can get M {Q somebody e3se on the case pretty soon, and then N (J0 thereafter we can get the tria1 date set. Okay? l\> -1% MR. HANKINS: Thank you. Your Honor. l\) 61 THE COURT: Let me get this signed, 1*}? ..A give that to y‘a11, and then 1'}? take up the plea. (End of proceedings) CJL0C0"-ICDCJ’l-IXOJYKJ _x .4. -A .4 [V ...s W .4. «law .3 O! .2. G7 ....\ '\l ..A~ (X? A (9 MG N ....u». NN N U) N -33 N 01 .3 REPORTER'S CERTIFICATE THE STATE OF TEXAS COUNTY OF ANDERSON ) I, Eilen Earies, Deputy Officiai Court Reporter in and for the 3rd District Court of Anderson County, State CD(D®\fG’)-L\3f\} of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of a1] portions of evidence and other proceedings requested in writing by counsoi for the parties to be inciuded in _: this volume of the Reporter's Record, in the .3. .4 above—sty1ed and —numbered cause, ali of which occurred _x N in open court or in chambers and were reported by me. .a. C0 I further certify that this Reporter's Record of .4. -F the proceedings truiy and correctly reflects the ..x U! exhibits, if any, admitted by the respective parties. ..m G) I further certify that the totai cost for the .4 ‘-1 preparation of this Reporter’s Record is $ and .1. 00 was oaid by ___________ WMWMMMWW. .4 {Q WITNESS MY OFFICIAL HAND this the 15th day of N0 September, 2015. K3 .4 NN Eiien Ear1es, Texas CSR #9i01 N (A! Expiration Date: 12/3112015 Susan waidrip Court Reporting N ~§ PO Box 1507 Fairfiefd, Texas 75840 N .01 Teiephonez (903) 389-4827 Fax: (903) 389-4310 T‘) {I ‘ﬁt . an Tuesday, February 11, 2014 3:35 PM, Jeffrey L Cue wrote: Mr. Smﬂh. You sent me everything need to ﬁle the rrmtlor: to remove the lrnproperlinvalid lien. Just need to make I paymeaf arrangements and ﬁle this tomorraw. will need you to sign {ha veriﬁed pleading. have court in 2 will I l the District Court on Friday and will approach thejudge with the order than and get ii slgned and ﬁled and back to ‘you Jeffrey L. Cua Atiomey at Law Law Office of Jeffrey cos V 1.. 1000 N. Church St. (75801) P. O. Box ‘I ‘I57 Palesﬁne. TX 75802-1157' (B88§ 651—685’l Toll Free (903) 72340381 Phene (885) 651-33851 Fax Email jeff@cnelgwﬁrm.co‘m CONHDENTEALITY: This email. and any aﬁachmenis, are intended only for useby the addressee or addresses named herein and may comain legaily privileged or conﬁdential lnforrnationr {E you are not thain-tended recipient of this email.you are herebynptiﬁed that any dissemination, distribution, or copying at this email or of any atlachmenté herein prohibited, if you have received this email in error, please deleta the original, any copy of this email is strictly or attachment and my printout thereof and notify the senderimmecliately. NOT WTENDED AS A SUBSTETUT E FORA WRiTlNG: Notwithstanding the Uniform Electronic TF3l'lS8C‘5Uf‘l$ Act or the applicability of any other law of similar substance or effect. absent an express statement to the contrary herein, this email mességé. its oonterrls; 3”“ any attachments are not intended in reprasant an offer or acceptance to enter ma L 3 contract and are not olherﬁnisa intended to blur: the sandar, the Law Qfﬁce of Jeffrey Coe, any of lts clients, or any cthar person or entity. . From: Calvin Smith {mg$l;9:§‘:go§nsc@5g:ahgg tom] Sent: Tuesday. February ‘H, 2014 ’ll:3‘l AM Ta": Jeff Coe § Subject: Currant Survey 1 Exmbxm Page? nf5 § on Monday‘ Feloruary 1?, 2014 4:54 PM! Jeffrey L. Goa wrote 121 get tn touch with Jackscn. Jeffrey L. Cane Attorney at Law Law Office of Jeffrey L. Cog 1009 N. Church St. (75801) F‘. G. Box1157 Palestine, TX 76802-1 157 (388) 65?-6851 Tail Free (906) 723~033’t Phone (888) 651-6851 Fax Email Leﬁ@::. mate: Febmary 14, 21314 at 112821 5 PM CST To: , “mark muilin“ i Cc: “Joy Phiﬂips“ Subject: RE: Release of EMC Ca§\/in & Mark, I am in raceipt the Release of EMC by your ‘Fife Compaav. innovation Resource Solution (INNOVATION) is wiiling to entertain a monetary sattiamentforour Reiease of Claim. As you are aware, this mattnr has weighed heavy on my heart and there has been much dismssion ragarding personal beliefs and desires to be Chrisﬁtke both in spirit and nature‘ believe that appﬁes to I ali parties, § "also have respo nsibiéiﬁes to our Investors. The property is both strategk: and \f1taH:c !NNO\1ATION’s agriculture plan. With regards tn the Smith's, !NNOVA1”xDN has suffereddamages and is entitied to’ their right to purchase the is nd as per the contract or be compensated for damages. As Mark stated; "Calvin nevershuuld have taken it this far” but thatwas Calvfws chcice. Calvin is experience and licensed in real estate transactians, agﬁcultural lending, and shoutd be held accuuntable rather than rewarded for his actions. Absent :1? a Settiernent, WNOVATEDM will continue to pursue its CLAIM of the property and pursue every legal remedy at its d$spesaI by all iawful means that have been previously stated by our Legal Counsei. Res‘pe«:tful£y, Tim Wagam Innovation Resource Soéut-ion, LLC 5300. Rigiea Place. Suite 100 Fort Worth, TX 76116 Ph: {Q72} 793-2298 e~faxt (855) 3S4—8504 This ininrmgtmrc in this message is the prapeﬁy of Innovation Rssossrca Suzuﬁan. LLC. This message is am W tmandea the use of the adcirsssea named abave and may uuniairr iagazlly privihegezzl andlu1‘ ma iniended recipient oftbis message, ybu as Ede, {S llnfc I WW ma ' . harsh}; uniﬁed that any use’. dissrgri-r“1ri‘:aa2ir‘>1n,adxsuigrggggr pm ‘ Yi ‘T195539? 35 W551‘? 9Y‘*W>5*34~ 37 5'9‘! mcefva this message in error. pieésa nnﬁfswa immadiakély by rerapafﬁgfrif:-i”: V1315 Md 5673“ EH6 m%5'=‘3§|é..3" 609393 Kheréaf and any zthazhmants. W& thank-yen for yvaurcmapazatiun. ‘ Exmbn A Page 3 cf 5 s‘ From: mark muliin maifto: _a ulii home‘! c Sam: Vhursday, February 13, 2014 2:59 PM Ta: tirnwagnergjrescn grcasol ution.c:<:>g3 Subject: FW: Rekzase of EMC Tim: In answer to your questlcn abuu: what are you being asked to do, the title company is asking that you execute this document and have it natarizeci. Let me krmw iﬂcan hafp. Thanks, Mark Muiﬁn -m...‘..,...m subject: Fwd: Release of EMC From: agg:’elending@gmgII.<:c>m Daie:Thu, 13 Feb 201.4 10:48:15 -0600 To; markmz.u!Iin@hatmai!.com FYi Begin forwarded message: From: Rebekah Cannon Date: February 11-!,2Q»14V at 9:01:54 AM CST To: "2ggIe1ending§gj§gmail.com“ <2 ieiendin aiI.com> Cc: Mary Amie subject; Release of EMC Mr. Smﬁth, Here is the Release of Earnestymaney Contract. Mary asked me to forward this to you. lfyou have any questions, please let us kncw. Thank you, Rebekah Cannon Escrow Asslstani Texas First Trtle Company, LLC 601 E. Lacy Streei Paﬁastine, Tsxas 7880i §03.72’3,53‘33 — Office 903.731.4739 ~« Fax Rebekah.c:annon@tex2aﬁrst£ii2e.com Exhlbftﬁx Page 4 uf 5 J», _..," :- C{]bmD£m‘tALlYY NOTICE: This message is for 'rh¢=.-‘benefit of the named parsantsl only. It may contain conﬁdential. proprietary or Iegailv pﬁvﬁeged Snfurmsation. Nb conﬁdentiality or amen‘ priviiege tS waived cw lost by any m'xs—tra:xsmisswr>. Do not dénzctly =3: indiceczty use, dismlose. aiistributa. print or crspy any part of the message transmitter: If your are not the ‘nwtendesi recipient. if you receive this messagein ermr, please immediately daleté it and all cepies of 2! {ram ‘(cur system, deztray an hard copies and notify the sender of its receipt Na virus found In this message. Checked by AVG - www‘avg.com Version: 2014.0.4259 I \/Ems Database: 369717088 - Reiease Date: 021*‘! 2/14 mm Page 5 c:f5 APPENDIX 5 FF FOR RECORD ALLuEf.Z__" 3' o‘c£ock_cL.;:-.. APR 1 3 Z815 CAU SE NO 3-421 M"--_.09 JANICE STAPLES Dlstﬁ<£G!etk.#oderaa:1OauIy,1X W 969» CALVIN 3. SMITH AND CONNIE M. § IN THE THIRD JUDECIAL DESTRICT SMITH, Plaintiffs § § VS, § COURT OF ‘.5 INNOVATION RE$0URCE § SOLUTION, LLC, Defendant § ANDERSON COUNTY, TEXAS ORDER DISQUAUFYIRG COUNSEL The motion to disqualify counsei of innovation Resource Solution, LLC having been presented to the Court, and me Cour: having considered and read the papers and pleadings ﬁled in connection with the motion and having heard the anjguments of counsel, the Com ‘ﬁnds that the former matter in which Jeffrey L. Coo represenied Calvin Smith is substantleliy related to the present matter in that: 1) Calvin Smith oonsulted with Jeffrey L. Coe regarding the alieged Earnest Money Contract that is now in dispute in this matter and for which innovation Resource Soiution, LLC now sues for breach of the contract; and 2) Jeffrey L. Coe advised Caivin Smith to ﬁle a motion to remove an invalid fien which is now the basis of Caivln Smitrfs claim against Innovation Resource Soiution, LLC. IT is THEREFORE ORDERED that Jeffrey L. {Joe is disqualiﬁed from representing Innovation Resource Sotution, LLC in this matter, C. Smnh - Order Disquaﬁfyfng Counsel « 5:393 1 of 2 tar * so Signed this 13th day of April, 2015. APPROVED AS TO FORM: LAW OFFICES OF JAMES D. HANKINS 606 E. Crawford street Paiestine, 3'X 75801 Telephone: {$303} 729-2102 ~~ Fax: ~ By: “, ~~ D. HANKINS ~~ Bar No. 08912300 ail:jdh@jameshankinslaw.com Attorney for Calvin Smith ‘ _ . 3' ~ , ‘ C. Smith -‘rordhr D1'squaEfy'?ng"CounseI

in Re: Innovation Resource Solution, LLC.

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