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

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

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

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

APPELLANTS

V.

DAVID COTTRELL

APPELLEE
____________________________________________________________

BRIEF OF THE APPELLANTS
____________________________________________________________

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

ATTORNEYS FOR APPELLANTS
 IDENTITY OF PARTIES AND COUNSEL

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

COUNSEL FOR APPELLANTS:

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

APPELLEE: DAVID COTTRELL (“Cottrell”)

COUNSEL FOR APPELLEE:

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

i
 TABLE OF CONTENTS

Identity of Parties and Counsel i

Table of Contents ii

Index of Authorities 1

Statement of Case 2

Statement of Facts 3

Summary of Argument 6

Argument and Authorities 8

Issues Presented

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

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

Prayer 15

Certificate of Compliance 16

Certificate of Service 16

Appendix 17

ii
 INDEX OF AUTHORITIES

Cases/Statutes Page

Texas Real Estate Licensing Act 2

Texas Occupations Code § 1101.806(c) 2

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

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

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

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

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

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

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

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

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

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

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

1
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF CASE

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

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

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

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

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

Texas Occupations Code §1101.806(c).

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

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

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

of frauds.

Burton contends that the Email only contemplated the potential sale of

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

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

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

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

Occupations Code §1101.806 (c).

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

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

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

2. The writing must contain a definite commission;

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

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

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

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

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

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

estate commission on the sale of its property.

STATEMENT OF FACTS

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

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

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

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

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

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

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

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

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

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

authorized to bring prospective buyers of the Apartment Property to Burton

for its consideration.

In furtherance of its contemplations regarding the role of Cottrell in

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

to Cottrell which contemplated the payment of a potential real estate

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

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

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

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

The Email recites that a potential commission could be earned.

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

contemplated potential commission, if all conditions precedent were met,

might apply. (See Appendix #1)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

against Cottrell. (See Appendix #3)

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

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

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

Judgment. (See Appendix #5)

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

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

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

judgment were heard by the Trial Court.

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

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

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

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

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

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

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

SUMMARY OF ARGUMENT

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

commission on the sale of the RaceTrac property.

Burton were entitled to summary judgment, because the writing on

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sufficient evidence that raised genuine issues of material fact regarding the

elements required to be proven by Cottrell.

ARGUMENT AND AUTHORITIES

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

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

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

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

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

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

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

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

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

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

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

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

Burton were entitled to summary judgment, because the writing on

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

particular apartment communities commonly known as Harbortree, Balboa,

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

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

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

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

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

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

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

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

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

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

is several blocks from Villia Maria Road, in fact.

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

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

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

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

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

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

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

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

RELA, including the required statute of frauds.

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

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

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

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

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

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

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

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

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

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

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

Further, Cottrell, undoubtedly understanding that he failed to strictly

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

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

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

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

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

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

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

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

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

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

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

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

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

evidenced herein even that description does not adequately identify the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

unequivocably referable to the agreement and corroborative of the fact that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PRAYER

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

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

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

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

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

be ultimately determined by a fact finder.

Respectfully submitted,

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

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

ATTORNEYS FOR APPELLANTS

15
 CERTIFICATE OF COMPLIANCE

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

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

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

font.

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

CERTIFICATE OF SERVICE

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

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

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

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

16
 APPENDIX

1. Email that is the basis of the litigation;

2. Plaintiff’s Original Petition;

3. Defendant’s Original Answer and Counterclaim;

4. Defendant’s Motion for Summary Judgment;

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

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

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

8. Final Judgment.

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

David,

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

Thanks,
Paul

From: Paul Leventls fmallto;paul]@brazostrace.coml
Sent: Wednesday, December 14, 2011 7:22 AM
To: 'David Cottrell'
Cc: 11: ’nell@flnerhomesonllne.com’; ’Bill Kotfan’
Subject: Land for Sate Nash and WJBryan

David,

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

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

Thanks,

Paul

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

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

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

TO THE HONORABLE JUDGE OF SAID COURT:

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

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

show the Court as follows:

I.

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

Procedure.

II.

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

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

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

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

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

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

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

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

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

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

III.

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

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

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

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

a natural person.

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

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

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

IV.

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

Estate Commission.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V.

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

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

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

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

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

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

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

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

VI.

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

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

the Contract, for which Cottrell now sues Brazos Trace.

3
 VII.

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

have occurred or have been satisfied.

VIII.

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

Practice and Remedies Code.

IX.
REQUEST FOR DISCLOSURE

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

this request, the following information or materials:

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

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

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

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

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

(f) for any testifying expert:

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

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

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

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

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

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

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

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

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

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

X.
REQUEST FOR PRODUCTION OF DOCUMENTS

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

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

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

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

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

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

RESPONSE:

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

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

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

RESPONSE:

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

RESPONSE:

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

RESPONSE:

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

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

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

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

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

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

entitled.

Respectfully submitted,

ROBERT G. BAILEY, P.C.

/S/ ROBERT G. BAILEY

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

ATTORNEY FOR PLAINTIFF

6
David Cottrell

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

David,

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

Thanks,
Paul

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

David,

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

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

Thanks,

Paul

EXHIBIT

1
 Legal Description of Contract Property

Seller: Brazos Trace, LLC

Purchaser: Del Lago Ventures, Inc.

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

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

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

NAfltUÿ SFVYAN PA*"*
20J-*

z
1
1
%<
m

PROPERTY

2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_ _ _ M.
OFFICER’S RETURN

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

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

lfl5££&
aa
 '1|"T r

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

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

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

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

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

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

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

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

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

0

N
■ｓＢＥａＢＢｇ
 J5ES3S
W

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

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

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

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

Marc Hamlin
flerk of Brazos County, Texas
Deputy'

OFFICER’S RETURN

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

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

22E
 »ÿM
f

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

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

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

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

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

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

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

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

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

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

r>»-
• < » i * .

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

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

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

I Issued and given under .nay hand and sealed of laid Court at office, this the 15thday of March, 2013
f * ¥ ' * .ji'1
>
', * ♦ *
4
■*.•«»’
■
i
* ,, , 4

;
\ ■? * , .. Mate Hamlin , ■* • :
' '
>

i of Brazos County, Texas
1 1 1/
Deputy

C o’clock IÿM.
Executed at o’clock

on the / rl day

in'person, a true copy of this citation together with the accompanying copy of the petition, having first
attached such
copy of such petition to such copy of citation and endcjjsed on such copy of citation the date of delivery.
Total fee for serving this citation / (j
Sheriff Account
To certify which witness my hand officially.
I No.
For Clerk’s Use
Christopher C. Kirk, Sheriff
Brazos
Taxed
Returned Record
Sheriff of
By
County, Texas
_Deputy
Tammv Poiock

V-1 ,, f
 T5S
I
ix ,61 L EU? M
At t o'clock.
CLERK OF THE COURT ATTORNEY FOR P A7NTTFF
Marc Hamlin BAILEY, ROBERT 2013
300 East 26th Street, Suite 216 3306 SUL ROSS
Bryan, TX 77803 HOUSTON, TX 77098 NrDIST CLERK
ity, Htxat .
Essiflsd
THE STATE OF TEXAS CITATION
NOTICE TO THE DEFENDANT: “You have been sued You may employ an attorney. If you or your attorney fca/ot file a
written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after
you were served this citation and petition, a default judgment may be taken against you.”

TO Burton Creek Development, Ltd, who may be served through registered agent Paul J. Leventis at
1722 Broadmoor Dr., Suite 212, Bryan. Tx 77802 Defen dant,
Greeting:
You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition
at or before ten o'clock A.M. of the Monday next after the expiration of twenty days after the date of
service of this citation before the Honorable 272nd District Court of Brazos County, Texas at the
Courthouse of said County in Bryan, Texas. Said Petition was filed on the 11th day of March A.D. 2013,
in the case, numbered 13’000672-CV-272on the docket of said court, and styled,
, « 1S
David Cottrell Plaintiff i. * * *

VS. # *
jMi'
Burton Creek Development LTD., Button Creek Management, LLC and Brazos Trace. LLC
Defendant , ? . \. 1 : - *
> > - L • ■
■

*
£
*
}
*
-K
.
•
.
.
9
♦ ;
ij .
<
'

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.
*
* ?
.v
i
*
* „ s. t *
v <
'
:
1 *
«

The nature of Plaintiffs demand is fillly shown by a tmeandpbrrect copy of Plaintiff s Original
Petition accompanying this citation and made a pan thereof ; * * > ;t ;
■

The officer executing the w$lshafl prbkiptlysdNe the same according to requirements of the law,
and the mandates thereof, and make due return as the law directs. »,1 ;;1
Issued and given under my, hand and sealed Court H office* this fee 15th day of March, 2013
t i *..«**'
*
i <
t
-
Marc
f*
<
Hamlin
"l •* * .
- ?
* 4
'
■

Couirty

Deputy'
** 4

OFFICER’S
’cfciVsOsf-
o'clock

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

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

DEFENDANTS' ORIGINAL ANSWER AND COUNTERCLAIM

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

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

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

PARTY IDENTIFICATION INFORMATION

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

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

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

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

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

been issued a Social Security number.

DISCOVERY CONTROL PLAN

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

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

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

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

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

VERIFIED DENIALS

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

Specifically, Plaintiff has not made proper demand on Defendants.

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

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

or partially failed.

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

AFFIRMATIVE DEFENSES

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

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

1101.806, which is the applicable statute of frauds.

DEFENDANTS' COUNTERCLAIMS

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

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

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

which they deem themselves entitled.

FACTS

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

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

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

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

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

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

to Burton Creek Development, Ltd.

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

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

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

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

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

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

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

commission.

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

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

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

to a commission.

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

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

judgment be entered as follows:

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

contract;

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

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

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

with reasonable certainty the land to be conveyed.

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

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

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

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

PRAYER

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

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

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

Respectfully submitted,

Peterson Law Gr

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

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

VERIFICATION

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

duly sworn, deposed as follows:

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

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

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

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

support of Defendants' Verified Denials are t

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

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

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

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

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

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

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

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

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

following:

I.

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

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

incorporated herein by reference.

II.

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

judgment declaring that:

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

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

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

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

reasonable certainty the land to be conveyed.

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

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

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

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

verbatim herein.

III.

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

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

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

reasonable certainty the land to be conveyed.

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

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

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

purposes as if recited verbatim herein.

IV.

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

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

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

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

directing such further proceedings in the action that are just.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Movants pray that:

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

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

Movants have the following:

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

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

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

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

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

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

controversy;

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

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

6. Costs of suit; and

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

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

Respectfully submitted,

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

CERTIFICATE OF SERVICE

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

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

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

APPENDIX TO
DEFENDANTS1 MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

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

I. Plaintiffs Pleadings

Exhibit A

II. Affidavits

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

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

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

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

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

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

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

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

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

3

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

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

/S/ ROBERTO. BAILEY
Robert G. Bailey

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

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

Divid,

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

Hanks,
Plul

KWHS Paul Levends fnÿjtKDauiObmrtÿraÿÿniT
sent: Wednesday, December 14, 2011 7:22 AM
Tbs Uavld Cottreir
ce ' be sold to an apart mem developer.
Cottrell Deposition 62:3-62:19; 62:20-63:21 and Exhibit 4 thereto.
(Specifically, the alleged contract is Exhibit A to Deposition Exhibit 4.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

O. Plaintiff never listed the property. Leventis affidavit.

III.

A. Y i rn :V«'T"li '•
: V* >-ÿ vi > 1, i
'

.1 <

B. Allowing circumvention of the Statute of Frauds renders it meaningless. Th
 Real F.staie Dealers License Act. which contains the applicable s’ at me of fra: ids. is an

exercise of the police power of the State to regulate a private business which affects the

public interest. Hal! v. Hard. 160 Tex. 565 n%0). As purl of that regulation, the

Legislature has seen 111 to regulate dealers by codifying a statute of frauds, in order to

prevent fraud in commission agreements. Our conns require strict compliance with the

terms of the RKLA if a broker is to use the courts for recovery of his fees or charge* for

his services. kL at 572. Thus. Plaintiff, in order to collect his fees, must strictly complv

with the provisions of the Act. including the statute of frauds. To allow otherwise would

eviscerate the law and frustrate the purposes of the Legislature.

C Validity of writing determined at the time the buyer is procured i'be "ulidity of

a writing is determined at the time the buyer is procured. Frady y. May. 2? S. A‘.3d 558.

562 0 ex. Anp. Fort Worth 2000, pet denied). The writing upon which Plaint, ffs claim

is based is dated December 14. 201!. Plaintiff testified that he procured the buyer in

2009 or 2010. Cottrell Deposition 39:25-40:25. Plaintiff could not have relied on the

aliened
V-.
agreement
'w
at a time when it did not exist.

]). Partial performance doctrine. Plaintiff relies on the theory of pan iai

performance in art effort to circumvent the statute of frauds. 'There arc certain requirements

which must be shown in order to recover on this theory. Strict compliance with these

requirements is necessary to prevent the exception from swallowing the rule.

First, in order to apply the part performance exception, there must be strong

evidence csiabhshiiig the existence of an agreement and its terms. Carmack v Heitwav

Development To.. 7u« SAV.2d 27, 40 (Tex. App.— Dallas 1985. no writ). Here, there is no such

stromi evidence, in fact, the evidence shows otherwise. The alleged agreement, if any. is for
apartment land. The description is not adequate to identify the land. The email relied upon does

not set forth the essential terms of the alleged agreement. This is certainly not strong evidence.

. .. . .
A broker's tall performance alone is not sufficient to take a commission agreement out of the

v,. W, U: idqua. . Jnc.. 159 S.W.2J 228. 251
..

Furthermore, the parly acting
( Tex. App.-

in reliance on the alleged contract
.....
statute oHrai-.ds. because such a construction would nullity the statute id., at 41. dung I, andis

Amarillo 1 942. writ iefd;-.

must after a substantial

dciriTTicnt: tor wineh lie has no adequate remedy. Kxxon Corn, v. Rreezevalc. 1 .id.. 82 S.W.3J

429. 459 (Tex . App. --Dallas 2002, pel. denied). Mere, it is not shown that Plaintiff did anything

except answer a phone call.

Second,

Luthem v. Kruse. 290 S.\V.3d 922.. 928 < Tex. App. ....
there must be afilrmaii vc corroboration by both parties of the missing terms.

Dallas 2009. no pel.), i lore, we have quite

the opposite situation. Ail of the evidence points to the fact that the offer was intended to cover

only apartment land, and in any case did not cover the corner pad which was actually sold, if

both parties do not affirmatively corroborate the same missing term, then there is no agreement.

Third, the partial performance, if any, must be unequhocably referable to the agreement

niv.. 2013 Ml. 1803549 (Tex. App. ....
and corroborative of the fact that a contract was actual) v made. Hairston v. Southern Methodist

Dallas 201,3.

at 43 9-49. The partial performance must be such
. denied L china Breeze vale, 82 SAY.3d

as could have been done with no oi ter design

than to fulfill l he particular agreement sought to be enforced. Without such precision, he acts of

performance do not tend to prove the existence of the parol agreement sought to be enforced. Id.

Mere, the performance, if any, of Plaintiff could have been done with a design to make the

apartment land tor another part of the development) more attractive to a developer, and thus was

not uncuuivocablv referable to the alleecd agreement, nor was it corroborate e of the fact that the
panics intended to make a contract on the corner pad. ‘The relevant issue is not whether there is

evidence that the performance conic be referable to the contract winch a party is trying to

enforce; rather, it is whether there is evidence that the performance is solely referable to the

contract/' Id.

finally, even if partial performance is proven, only reliance damages are available. Lost

profits or other contractual damages are not available. Maacohar N. American, v. Grasso

Oil field Svcs.. 736 S.W.2d 787. 796. Plaintiff has made no proof’ of reliance damages.

Therefore, partial performance foils as a theory of recovery.

D. Even if there is a contract to sell the whole tract, Plaintiff cannot recover by

setting part of the tract. liven if the Court finds that a valid contract existed with respect to Lot

:. Plaintiff cannot recover. When an owner of land authorizes a broker to sell me whole tract.

and not merely a part thereof, the broker cannot recover a commission upon proof that he

O'Neil v. O'NeiL 258 S.W. 588. 59! (Tex. App. ....
secured a purchaser ready, willing, and able to buy a part of the properly ai the

Fort Worth 1924. writ dism d
stipulated price.

Therefore, if the Court finds that the alleged agreement applied to Lot i. Plaintiff cannot recover,
worn).

because all of Lot 1 was not sold.

For the foregoing reasons, the Court should deny Plaintiff s Cross-Motion for Partial

Summary Judgment and grant Defendant’s Motion for Summary Judgment.

PRAYER

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

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

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

Peterson Law Group

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

1733 Briarcresi Drive. Suite 100
Bryan. Texas 77802
*

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

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

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

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

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

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

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

TABLE OF CONTENTS

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

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

Hxhihk A: Affidavit of Paul I .event is

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

amount and reasonableness of attorney fees.

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

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

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

NO. 1 3-000672-CV-272

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

AFFIDAVIT OE PALE EKVEN HS

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

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

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

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

and are true and correct.

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

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

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

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

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

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

contemplated therein never took place.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to clarify what land was referenced in mv email.

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

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

agreement.

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

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

■uuare loot

’Plaintiff neÿer listed the property.

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

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

which were sera to him for his information.

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

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

corner pad.

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

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

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

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

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

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

SIGN HD on

Paul Levemis, Affiant

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

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

DAVID COTTRELL IN THE DISTRICT COURT
Plaintiff,

V, 2721) JUDICIAL DISTRICT

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

AFFIDAVIT IN SUPPORT OF REQUEST
FOR ATTORN! A S FEES

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

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

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

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

ihev are all true and correct.

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

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

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

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

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

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

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

os if set forth in full.

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

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

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

regular and ordinal*) course of business.

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

written contract.

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

j actors:

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

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

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

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

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

writ of execution and other procedures.

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

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

on appeal to the court of appeals.

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

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

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

SI ON Hi) on V . 2014.

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

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

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

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

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

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

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

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

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

Bryan, Texas 77803

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

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

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

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

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

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

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

No. nÿm06?2-cn1. 1JIL Orthm—lf. be aud in hfitby DENIED.
IT IS ORDERED THAT the Ciou Motion fw Partial SWMnfxy iudgraem Tiled Itfttin by
David CMbe I, PlainltfT, be and M herooy GRANTED.

IT IS ORDERED, ADJUDGED AND DECREED than Eend CoMreR, Memlift, law red
recover ruumery judfneot of &tuf flow Burton Creel Development. Lid *rd Btntar. rlrocl
Mjo»|ÿj(ieai. LLC. Dctendmu, joiady and severally, ft* actual II the principal tmounr

at $30,015.15.
iifped dni of

•
iVendluj

APPROVED AS TO FORM AND APPROVED AS TO FORM ONLY-
SUBSTANCE.
PETERSON LAW GROUT
ROBERT o. BAILEY, F.C

i
Hy:
_
__
B.V. "ItoW* Arierm, HI
Robert ti. Bailey Slate Bar No 34045172
Star Km ML 01536200 3608 fit 29* St, Suite 112
: * oe. Svt Ran Bryan, Taxi*. 77A0Q
hixuioii. Teat 77091 PWorx. 979-703-7014
I ted 81L4RS 1338 Fax: 979 703 7031
Cell: Hmaih n»Fry(7i)!warr*l»iwytri I**"
FA*.: 713-630-0017
Email: rbaile-ythlfi'lx'TthailrvT’c uar ATTORNEY FOR DEFENDANTS,
HURTON CRbbK DEVELOPMENT. LTD
ATTORNEY FOR PLAKTlfF, AND
UAVIDUUl IKLLL HURTON CREEK MANAGEMENT LLC
 No. 13-000672-CV-272
DAVID COTTRELL § IN THE DISTRICT COURT OF
§
VS. § BRAZOS COUNTY, TEXAS
§
BURTON CREEK DEVELOPMENT, LTD. §
AND §
BURTON CREEK MANAGEMENT, LLC § 272ND JUDICIAL DISTRICT
FINAL JUDGMENT
IT IS ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff, have and
recover judgment of and from Burton Creek Development, Ltd. and Burton Creek Management,
LLC, Defendants, jointly and severally, for actual damages in the principal amount of $50,01 5. 1 5,

together with pre-judgment interest thereon at the rate of 6% per annum from January 29, 2013 until

the date of this Final Judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for attorney’s fees in the sum of
$ 2-3 0
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek

Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees
in the sum of $ / 7-ÿ f h 0'OQ in the event an appeal to the court of appeals is filed by either of
Defendants Burton Creek Development, Ltd. or Burton Creek Management, LLC, and Plaintiff
David Cottrell is successful.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees

in the sum of $
7/ fAdjM in the event a petition for review is filed by either of Defendants
Burton Creek Development, Ltd. or Burton Creek Management, LLC, and Plaintiff David Cottrell

is required to file a response and is successful in the Supreme Court of Texas, which includes the
court’s refusal to hear the matter. DC. t
F1 LE D p
At M ... o'clock ... r_

DEC 0 3 20U

Bv
MAFIC KAM
_
CLEF1K
xas
 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees
in the sum of $ A in the event a petition for review is granted by the Supreme Court
of Texas for representation at the merits briefing stage and Plaintiff David Cottrell is successful.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Cottrell, Plaintiff,
have and recover judgment of and from Burton Creek Development, Ltd. and Burton Creek
Management, LLC, Defendants, jointly and severally, for reasonable and necessary attorney’s fees
in the sum of $ j AOO-d (} in the event a petition for review is granted by the Supreme Court
of Texas for representation at the oral argument stage and Plaintiff David Cottrell is successful.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all taxable costs of court
are taxed against Burton Creek Development, Ltd. and Burton Creek Management, LLC,
Defendants, jointly and severally.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that interest shall accrue at
the rate of 5% per annum on the amounts awarded herein for damages, attorney fees and costs from
the date of this Final Judgment until paid. Interest, if any, on any contingent award of appellate
attorney fees shall accrue from the date of a final judgment in the appellate courts.

All claims and causes of action not expressly disposed of herein are hereby denied. This
judgment disposes of all claims and all parties and is final and appealable.
Signed this f "1

2
APPROVED AS TO FORM: APPROVED AS TO FORM ONLY:
ROBERT G. BAILEY, P.C.

By:
Robert G. Bailey
State Bar No. 01536200 State Bar No. 24045372
3306 Sul Ross 3608 East 29th St, Suite 112
Houston, Texas 77098 Bryan, Texas 77802
Land: 832-485-1338 Phone: 979-703-7014
Cell: 713-819-5534 Fax: 979-703-7031
Fax: 713-630-0017 Email: rusty@brazoslawyers.com
Email: rbailey@robertbaileypc.com
ATTORNEY FOR DEFENDANTS,
ATTORNEY FOR PLAINTIFF, BURTON CREEK DEVELOPMENT, LTD.
DAVID COTTRELL AND
BURTON CREEK MANAGEMENT, LLC

3