in Re: VSDH Vaquero Venture, Ltd. and Douglas M. Hickok

ACCEPTED
05-15-01513-CV
05-15-01513-CV FIFTH COURT OF APPEALS
DALLAS, TEXAS
12/11/2015 4:54:22 PM
LISA MATZ
CLERK

Oral Argument Requested

No. 05-15-___________-CV FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
____________________________________________
12/11/2015 4:54:22 PM
LISA MATZ
COURT OF APPEALS Clerk
for the
FIFTH DISTRICT OF TEXAS
________________________________________

In re VSDH Vaquero Venture, Ltd. and Douglas M. Hickok,

Relators.
________________________________________

Original Mandamus Proceeding from
County Court at Law Number One
of Dallas County, Texas
Cause No. CC-09-05232-A
Honorable D’Metria Benson Presiding
________________________________________

MANDAMUS RECORD
(Tabs 1-29)
________________________________________

J. Carl Cecere Jeffrey S. Levinger
State Bar No. 24050397 State Bar No. 12258300
Cecere PC Levinger PC
6035 McCommas Blvd. 1445 Ross Avenue
Dallas, Texas 75206 Suite 2500
Telephone: 469-600-9455 Dallas, Texas 75202
ccecere@cecerepc.com Telephone: 214-855-6817
Facsimile: 214-855-6808
jlevinger@levingerpc.com
Attorneys for Relators
Evan Lane (Van) Shaw Kenneth B. Chaiken
State Bar No. 18140500 State Bar No. 04057800
Law Offices of Van Shaw Chaiken & Chaiken, PC
2723 Fairmont Street 5801 Tennyson Parkway
Dallas, Texas 75201 Suite 440
Telephone: 214-754-7110 Plano, Texas 75204
Facsimile: 214-754-7115 Telephone: 214-265-0250
Email: van@shawlaw.net Facsimile: 214-265-1537
Email: kchaiken@chaikenlaw.com

Attorney for VSDH Vaquero Attorney for Douglas M. Hickok
Venture, Ltd.
 INDEX TO MANDAMUS RECORD

Volume 1
Certificate of Service

Verification of J. Carl Cecere
Plaintiff’s Original Petition (July 2, 2009) ............................................... tab 1

Van Shaw’s Petition in Intervention (July 7, 2009) ................................. tab 2

Doug Hickok’s Petition in Intervention (July 7, 2009) ............................ tab 3

Original Answer to Defendants/Counter-Plaintiffs’ Counterclaim
(October 5, 2009) ...................................................................................... tab 4
Ken Gross’ and Betsy Gross’ First Amended Counter-Claim
Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and
Douglass M. Hickok, and Original Third-Party Petition Against
VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. (February
16, 2010) ................................................................................................... tab 5

First Amended Answer to Defendants/Counter-Plaintiffs’
Counterclaim (March 29, 2010)................................................................ tab 6

Plaintiff’s First-Amended Petition (April 30, 2010)................................. tab 7
Ken Gross’ and Betsy Gross’ Second Amended Counterclaim
Against VSDH Vaquero Venture, Ltd., Evan L. Shaw, and
Douglas M. Hickok and First Amended Third-Party Petition
Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc.
(June 2, 2010) ............................................................................................ tab 8

Counter-Defendants’ Second Supplemental Answer as An
Addition to Counter-Defendants’ First Supplemental Answer
and Counter-Defendants’ First Amended Answer to
Defendants/Counter-Plaintiffs’ Counterclaim .......................................... tab 9

Intervenor/Counter-Defendant Douglas M. Hickok’s Amended
and Supplemental Answer to Defendants/Counter-Plaintiffs’
Counterclaim (April 28, 2011)................................................................ tab 10

i
Order Partially Granting Intervenor Evan L. Shaw’s No-
Evidence Motion for Summary Judgment (April 22, 2011) ................... tab 11
Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd.’s
Third Supplemental Answer as an Addition to Counter-
Defendants’ First and Second Supplemental Answers and
Counter-Defendants’ First Amended Answer to
Defendants/Counter-Defendants’ First Amended Answer to
Defendants/Counter-Plaintiffs’ Counterclaim (April 29, 2011) ............. tab 12
Ken Gross’ and Betsy Gross’ Third Amended Counter-Claim
Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and
Douglas M. Hickok and Second Amended Third-Party Petition
Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc.
(April 15, 2013)....................................................................................... tab 13

Defendants/Counter-Plaintiffs Ken Gross and Betsy Gross’
Witness List (November 26, 2013 .......................................................... tab 14
Plaintiff’s Motion for Continuance (December 6, 2013) ....................... tab 15

Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd.’s Fourth
Supplemental Answer as An Addition to Counter-Defendants’ First,
Second and Third Supplemental Answers and Counter-Defendants’
First Amended Answer to Defendants/Counter-Plaintiffs’
Counterclaim (January 24, 2014)............................................................ tab 16
Ken Gross and Betsy Gross’ Motion to Disqualify Evan L.
Shaw (February 27, 2014)....................................................................... tab 17

Notice of Hearing (June 2, 2014)............................................................ tab 18

Transcript of the hearing on Ken and Betsy Gross’ Motion to
Disqualify Evan L. Shaw (June 18, 2014. .............................................. tab 19
Memorandum Opinion (August 29, 2014) ............................................. tab 20

Order Vacating Oral Ruling on Motion to Disqualify Evan L.
Shaw (September 18, 2014) .................................................................... tab 21

Van Shaw’s Motion to Withdraw and Plaintiff/Counter-
Defendant VSDH Vaquero Venture, Ltd.’s Motion for Mistrial
(June 16, 2015) ........................................................................................ tab 22

ii
Ken Gross and Betsy Gross’ Brief on VSDH’s Motion for
Mistrial (June 16, 2015) .......................................................................... tab 23
Trial Transcript, vol. 2: Proceedings on June 10, 2015 .......................... tab 24
Trial Transcript, vol. 3: Proceedings on June 15, 2015 .......................... tab 25

Trial Transcript, vol. 4: Proceedings on June 16, 2015 .......................... tab 26
Trial Transcript, vol. 5: Proceedings on June 17, 2015 .......................... tab 27

Trial Transcript, vol. 6: Proceedings on June 18, 2015 .......................... tab 28

Trial Transcript, vol. 7: Proceedings on June 19, 2015 .......................... tab 29
The Grosses’ Trial Exhibits .................................................................... tab 30
VSDH’s Trial Exhibits ............................................................................ tab 31

Charge of the Court (June 19, 2015)....................................................... tab 32
Motion for Judgment (July 17, 2015) ..................................................... tab 33
Douglas M. Hickok’s Motion for Entry of Judgment (July 22,
2015) ....................................................................................................... tab 34
Gross’ Motion for New Trial (July 29, 2015)......................................... tab 35
Transcript of the hearing on the motion for new trial and
motions for judgment (August 26, 2015)................................................ tab 36

Order Granting Gross’ Motion for New Trial (August 31, 2015) .......... tab 37
Douglas M. Hickok’s Objections to the Proposed Order
Granting the Grosses’ Motion for New Trial (August 31, 2015) ........... tab 38
Motion to Vacate August 31, 2015 Order Granting Gross’
Motion for New Trial and Motion for Hearing on the Record, on
Hickok’s Objection to Such Order as A Proposed Order
(September 3, 2015) ................................................................................ tab 39

Motion to Vacate August 31, 2015 Order Granting Gross’
Motion for New Trial and Motion for Hearing on the Record, on

iii
Evan L. Shaw’s Objection to Such Order as A Proposed Order
(September 4) .......................................................................................... tab 40
Order Granting Intervenor Shaw’s Unopposed Motion for
Continuance (October 7, 2015) ............................................................... tab 41

iv
 Respectfully submitted,

/s/ Jeffrey S. Levinger
J. Carl Cecere Jeffrey S. Levinger
State Bar No. 24050397 State Bar No. 12258300
Cecere PC Levinger PC
6035 McCommas Blvd. 1445 Ross Avenue, Suite 2500
Dallas, Texas 75206 Dallas, Texas 75202
Telephone: 469-600-9455 Telephone: 214-855-6817
Email: ccecere@cecerepc.com Facsimile: 214-855-6808
Email: jlevinger@levingerpc.com

Attorneys for Relators

Evan Lane (Van) Shaw
State Bar No. 18140500
Law Offices of Van Shaw
2723 Fairmont Street
Dallas, Texas 75201
Telephone: 214-754-7110
Facsimile: 214-754-7115
Email: van@shawlaw.net

Attorney for VSDH Vaquero Venture,
Ltd.

Kenneth B. Chaiken
State Bar No. 04057800
Chaiken & Chaiken, PC
5801 Tennyson Parkway
Suite 440
Plano, Texas 75204
Telephone: 214-265-0250
Facsimile: 214-265-1537
Email: kchaiken@chaikenlaw.com

Attorney for Douglas M. Hickok

1
 CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Mandamus Record was served
on all counsel of record via the Court’s electronic filing system on this 11th day of
December, 2015.

Steven E. Aldous
Forshey & Prostok, LLP
500 Crescent Court, Suite 240
Dallas, Texas 75201

/s/ Jeffrey S. Levinger
Jeffrey S. Levinger

2
 VERIFICATION

STATE OF TEXAS §
§
COUNTY OF DALLAS §

Before me the undersigned authority, on this day personally appeared J. Carl

Cecere, who being by me sworn, deposed and stated as follows:

My name is J. Carl Cecere. I am over the age of 18 years and am competent

to make this verification. I am one of the attorneys for the Relators in this matter,

and I have read the foregoing Petition for Writ of Mandamus. The Mandamus

Record includes true and correct copies of every document that is material to the

Relators' claim for relief and each document was filed in the underlying proceeding.

All of the pleadings included in the Mandamus Record are true and correct copies

of the originals on file in the trial court, and all of the hearing transcripts and exhibits

included in the Mandamus Record are true and correct copies of the originals

prepared by the official court reporter.

J. ~ecere
Subscribed and sworn to before me on this /tJ-13- day of December, 2015.

~huw~
State0f ~p.asA
Notary Public, tiJ
VERONICA ANNE HODGES
My Commission Expires
Name: ~011 l ~ A-.~P'.s
July 2, 2018 Commission Expires: 1}-j2-1Jjy

3
TAB 1
 CAUSE NO. tt"~- of"2.ll--~

VSDH VAQUERO VENTURE, LTD. § IN THE COUNTY COURT . S \S
§ 2nuq JUL -2 PH :
V. § AT LAW NUMBER __J__ : ,
§ ' . . ..._,i
,._'.\ I::'.'.,.",,< . ; ;:. Q\1~
KEN GROSS and BETSY GROSS § DALLAS COUNTY,Cf_nYia i\r

COUNTER-DEFENDANTS' ORIGINAL ANSWER· Page 5
Ans.Cclaim
 : (,'f ',·

LAW OFFICES
OF 2009 ocr -s
VAN SHAW Pii 3: 39
ATTORNEYS AT LAW
VAN SHAW• DANIEL :K''.-;HAGOOD
JANET R. RANDLE

• BOARD CERTIFIED IN
2723 FAIRMOUNT
DALLAS, TEXAS 75201
(214) 754-7110
- ·--. ·--
OF COUNSEL

'1: · ,~·eERTlF_IED
PARALEGALS
RHONDA VINCENT
PERSONAL INJURY FAX NO. (214) 754-7115 LORI G. MOORE
•CERTIFIED PUBLIC www.shawlawoffice.com APRILS. SUMNER
ACCOUNTANT

County Court at Law No. 1 October 5, 2009
509 Main Street VIA HAND DELIVERY
Records Building ---Phone (214/653-7556)---
Dallas, TX 75202

RE: Cause No. CC-09-05232-A;
VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery is the following:

I) Original Answer to Defendants/Counter-Plaintiffs' Counterclaim.

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Thank you for y fir assistance.

Van Shaw
VS/Im
Enclosure - hand delivery

cc: See attached Service List.

VS.ltr2Ct.Ans2Cclaim
 SERVICE LIST

Mr. R. Brent Cooper Via Facsimile (2141712-9540)
Ms. Jana Starling Reist ----Phone (214/712-9500)---
900 Jackson Street, Suite I 00
Dallas, Texas 75202

Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

********************************

Van Shaw represents PlaintiffVSDH VAQUERO VENTURE, LTD, Intervenor, DOUG
HICKOK and Intervenor, VAN SHAW
TAB 5
 - -
CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD., §
Plaintiffs/Counter-Defendant, §
§
v. §
. I"
§
KEN GROSS and BETSY GROSS
Defendants/Counter-Plaintiffs,
§
§ ATLA~
v.
§ ~ .. .
§
§
EVAN L. SHAW and DOUGLAS M. §
HICKOK §
lntervenors/Counter-Defendants. § DALLAS COUNTY, TEXAS
§

KEN GROSS' AND BETSY GROSS' FIRST AMENDED COUNTER-CLAIM AGAINST
VSDH VAQUERO VENTURE, LTD., EV AN L. SHAW AND DOUGLAS M. HICKOK
AND ORIGINAL THIRD-PARTY PETITION AGAINST VSDH VAQUERO HOMES,
INC. AND VSDH HOMES, INC.

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Kenneth P. Gross and Betsy L. Gross, Defendants/Counter-

Plaintiffs/Third-Party Plaintiffs (collectively referred to as "the Grosses"), and hereby files their

First Amended Petition Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and Douglas M.

Hickock (collectively referred to as "Counter-Defendants") and Original Third-Party Petition

Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. (collectively referred to as "Third-

Party Defendants"), and for such would respectfully show the Court as follows:

I.
DISCOVERY CONTROL PLAN

I. The parties have entered into an Agreed Level 3 Discovery Control Plan pursuant

to Tex. R. Civ. P. 190.4.

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page 1
D/758360.I
 II.
PARTIES AND SERVICE

2. Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd. is a Texas Limited

Partnership who is represented by Evan L. Shaw in this action.

3. Defendant/Counter-Plaintiff/Third-Party Plaintiff Kenneth P. Gross 1s an

individual who has appeared in this action and is represented by the undersigned counsel.

4. Defendant/Counter-Plaintiff/Third-Party Plaintiff Betsy L. Gross is an individual

who has appeared in this action and is represented by the undersigned counsel.

5. Intervenor/Counter-Defendant Douglas M. Hickok ("Hickok") is a Texas resident

and may be served with process by serving his last known address at 5305 Village Creek Drive,

Plano, Collin County, Texas 75093.

6. Intervenor/Counter-Defendant Evan L. Shaw ("Shaw") is a Texas resident and

may be served with process by serving his last known address at 4646 Cherokee Trail, Dallas,

Dallas County, Texas 75209.

7. Third-Party Defendant VSDH Vaquero Homes, Inc. is a Texas General

Partnership whose principal place of business is at 5305 Village Creek, Plano, Texas 75093. It

may be served with process by serving its President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

8. Third-Party Defendant VSDH Homes, Inc. is a Texas General Partnership whose

principal place of business is at 5305 Village Creek, Plano, Texas 75093. It may be served with

process by serving its Registered Agent and President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page2
D/758360.J
 -
III.
JURISDICTION AND VENUE

9. The subject matter in controversy is within the jurisdiction limits of this Court.

The Court has jurisdiction over VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. because

they are Texas general partnerships.

10. Venue is proper with regard to this third-party action under section 15.062 of the

TEXAS CIVIL PRACTICE & REMEDIES CODE, as the transaction giving rise to this third-party action

arises out of the same transaction, occurrence, or series of actions or occurrences.

IV.
FACTS

11. On or about June 4, 2006, the Grosses entered into a New Home Contract

("Contract"), promulgated by the Texas Real Estate Commission, with Counter-Defendants and

Third-Party Defendants for the purchase of 2004 White Wing Cove, Westlake, Texas 76262

("the Property"), in the amount of $2,851,871.00. (A copy of the Contract has been attached

hereto as Exhibit "l," and is incorporate herein by reference for all pertinent purposes).

12. The Grosses purchased the Property at the full listed price of $2,851,871.00, even

though the Property had been listed for two years, due to the fact that Counter-Defendants agreed

to enter into a "Buy Back Option" with the Grosses.

13. According to paragraph 1 ("Buy Back Option") of Addendum A of the Contract,

VSDH Vaquero Venture, Ltd. granted to the Grosses, as Buyers of the Property, the "the option .

. . to put the Property to Seller [VSDH Vaquero Venture, Ltd.] (i.e. require Seller to repurchase

the Property for the original "Sales Price" of $2,851,871.00) on September 1, 2009, or such

earlier date as may be mutually agreed between Buyer and Seller . . .. " See Addendum A to

Exhibit I.

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page 3
D/758360.1
 -
14. Hickok and Shaw are limited partners of VSDH Vaquero Venture, Ltd. and

participated and controlled Counter-Defendants and Third-Party Defendants sell of the Property

to the Grosses and benefitted from the sell to the Grosses.

15. Further, according to paragraph 4 of Addendum A, Hickok and Shaw both agreed

to be personally responsible, jointly and severally, in the event VSDH Vaquero Venture, Ltd.

does not fully perform under the terms of the Buy Back Option.

16. Under the signature line of the Contract, VSDH Homes, Inc. is listed as the

general partner ofVSDH Vaquero Venture, Ltd. However, according to the Texas Secretary of

State's office, VSDH Vaquero Homes, Inc. is listed as VSDH Vaquero Venture, Ltd.'s general

partner.

17. In accordance with the terms of the Buy Back Option, the Grosses exercised the

Buy Back Option by delivering written notice to Shaw and Hickok before May 1, 2009 of the

Grosses' intent to sell the Property back to Counter-Defendants and Third-Party Defendants.

18. However, Shaw and Hickok communicated to the Grosses that Counter-

Defendants and Third-Party Defendants do not intend to buy the Property back and perform their

contractual obligations as required under Addendum A to the Contract. Counter-Defendants and

Third-Party Defendants failed to purchase the property back.

19. The Grosses therefore seek construction of the Contract, including Addendum A,

to determine whether or not Counter-Defendants and Third-Party Defendants breached the

Contract by refusing and failing to buy the Property back from the Grosses pursuant to the

Contract for the original sales price of $2,851.871.00.

20. In an effort to mitigate their damages and avoid foreclosure of the home, the

Grosses sold their home for $2,415,600.

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page 4
D/758360.I
 - -
v.
DECLARATORY JUDGMENT
21. All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

22. This is an action for declaratory judgment pursuant to the Texas Declaratory

Judgment Act, Ch. 37.001 et. seq. of the TEX. CIV. PRAC. & REM. CODE, for the purpose of

determining an actionable and justiciable controversy between the parties, as hereinafter more

fully appears. The controversy involves Counter-Defendants' and Third-Party Defendants' duty

to perform their obligations arising under the "Buy Back Option," Addendum A, to the Contract.

23. Based upon the clear terms of Addendum A to the Contract (Exhibit 1), Counter-

Defendants and Third-Party Defendants were obligated to buy the Property back from the

Grosses pursuant to the terms of the Contract for the original sales price of $2,851.871.00.

24. Accordingly, the Grosses seek a declaration from this Court, as follows:

I. VSDH Vaquero Venture, Ltd. was obligated to buy the Property back
from Kenneth P. Gross and Betsy L. Gross on or before September 1,
2009 for the original sales price of $2,851,871.00

2. In the event VSDH Vaquero Venture, Ltd. failed to timely buy the
Property back from Kenneth P. Gross and Betsy L. Gross, Douglas M.
Hickok and Evan L. Shaw were personally responsible, jointly and
severally, to buy the Property back on or before September 1, 2009 for the
original sales price of $2,851,871.00.

VI.
BREACH OF CONTRACT
25. All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

26. As stated above, the Grosses entered into a valid and enforceable contract with

Counter-Defendants and Third-Party Defendants. See Exhibit 1. The Grosses have fulfilled all

requirements, statutorily and in accordance with the terms of the Buy Back Option, by delivering
COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page 5
D/758360.I
 -
written notice to Hickok and Shaw before May 1, 2009 of the Grosses' intent to sell the Property

back to Counter-Defendants and Third-Party Defendants. Counter-Defendants and Third-Party

Defendants have materially breached the Contract in that they have repudiated the contract and

failed to proceed with the purchase of the Property. Counter-Defendants' and Third-Party

Defendants' breach has proximately caused the Grosses' damages.

27. The Grosses request that a judgment be entered against Counter-Defendants and

Third-Party Defendants for actual damages. As a direct and proximate result of Counter-

Defendants' and Third-Party Defendants' failure to perform under the Contract, the Grosses have

been damaged in an amount in excess of the jurisdictional limits of the Court, for which they

seeks appropriate judicial relief.

VII.
FRAUD IN A REAL ESTATE TRANSACTION

28. All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

29. The Grosses will show that Counter-Defendants' and Third-Party Defendants'

conduct constitutes fraud in a real estate transaction as defined by Section 27.01 of the TEXAS

BUSINESS & COMMERCE CODE. Counter-Defendants' and Third-Party Defendants' made a false

representation that they would buy the property back pursuant to the Buy Back Option in order to

induce the Grosses to enter into the Contract. The Grosses entered into the Contract and

purchased the Property at the full listed price of $2,851,871.00, even though the Property had

been listed for two years, due to the fact that Counter-Defendants and Third-Party Defendants

made the false representation that they would buy the property back pursuant to the "Buy Back

Option." The Grosses' reliance directly and proximately caused them substantial injury, as set

out above, for which they seek appropriate judicial relief.

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page 6
D/758360.l
 - -
A. Attorneys' Fees

30. The Grosses have retained the law firm of Cooper & Scully, P.C. to represent

them in this action and have agreed to pay the firm reasonable and necessary attorneys' fees.

31. The Grosses are entitled to recover reasonable and necessary attorney fees that are

equitable and just under TEXAS CIVIL PRACTICE & REMEDIES CODE § 37.009 because this is a

suit for declaratory judgment, under TEXAS CIVIL PRACTICE & REMEDIES CODE§ 38.001 because

it is a suit for breach of a written contract, and under TEXAS BUSINESS & COMMERCE CODE

§27.0l(e) because this is an suit for statutory fraud. All conditions precedent to the collection of

attorneys' fees have been satisfied.

B. Conditions Precedent

32. All conditions precedent to the Grosses claims for relief have been performed or

have occurred.

WHEREFORE, PREMISES CONSIDERED, Defendants Kenneth P. Gross and Betsy

L. Gross pray that their counterclaims against VSDH Vaquero Venture, Ltd., Shaw and Hickok

and third third-party claims against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. be

granted; that upon final hearing of this matter, a declaratory judgment is entered as enumerated

above; that the Grosses have and recover damages in an amount within the jurisdictional limits

of this Court; pre- and post-judgment interest at the highest lawful rate; attorneys' fees and court

costs; exemplary damages; and such other and further relief, whether special or general, to which

the Grosses may show themselves justly entitled.

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page 7
01758360.l
 Respectfully submitted,

COOPER & SCULLY, P.C.

By~d!Jd OBRENT COOPER
State Bar No. 04783250
JANA STARLING REIST
State Bar No. 24056890

Founders Square
900 Jackson Street, Suite 100
Dallas, Texas 75202
Telephone: (214) 712-9500
Facsimile: (214) 712-9540

ATTORNEYS FOR DEFENDANTS
KEN GROSS AND BETSY GROSS

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing document was
forwarded to all counsel of record herein via facsimile, on this the 12'h day of February 2010 as
follows:

Evan Lane (Van) Shaw (via facsimile and CMRRR)
Law Offices of Van Shaw
2723 Fairmount Street
Dallas, Texas 75201
Attorney for Counter-Defendants

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION Page 8
D/758360.1
 C.OOpe Scully
A Prn[c.1.1run11i Cm/1mc1!wn

.j •• ' ; ~~ ~ l
JANA S. REIST .....·.. i' 214-i1:2.%11
'kna'.R!i:iist@i:o~P'ersCuilY.¥m

February 12, 2010

VIA CERTIFIED MAIL

John Warren
County Court Clerk
300 Records Bldg.
509 Main Street
Dallas, Texas 75202

Re: VSDH Vaquero Venture, Ltd. v. Kenneth P. Gross and Betsy L. Gross, Cause No.
CC-09-05232-A, on file in the County Court at Law No. 1, Dallas County, Texas
OurFileNo.: 1903-17168

Dear Mr. Warren:

Enclosed please find an original and one (I) copy of Ken Gross' and Betsy Gross' First
Amended Counter-Claim Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and Douglas M
Hickok and Original Third-Party Petition Against VSDH Vaquero Homes, Inc. and VSDH
Homes, Inc. for filing in the above referenced matter. A check in the amount of $35.00 is
enclosed for filing fee. Please return via the enclosed self-stamped envelope a filed stamped
copy of the Petition for our file. Plaintiffs counsel will receive a copy of this document via
facsimile and certified mail.

If you have any questions, do not hesitate to contact the undersigned.

Sincerely yours, g ~

Jr
Founders Square 900 Jackson Street, Suite 100 Dallas, TX 75202
Telephone (214) 712-9500 Fax (214) 712-9540
V-'WW.cooperscully.com

Houston Office (713) 236-6800 San Francisco Office (415) 956-9700 Sherman Office (903) 813-3900
01759162.1
February 12, 2010
Page 2

JSR/tsh
Enclosures

Cc: Evan Lane (Van) Shaw (via facsimile 214.754. 7115 and certified mail)
Law Offices of Van Shaw
2723 Fairmount Street
Dallas, Texas 75201
Attorney for Plaintiff

D/759162.l
TAB 6
 CAUSE NO. CC-09-05232-A
70ln W?. ?q PH ~: 08
VSDH VAQUERO VENTURE, LTD. § IN THE comrrt'b'UR.T
§
Plaintiff §
§
v. §
§
KEN GROSS and BETSY GROSS § ATLAWNUMBER I
§
Defendants §
§
v. §
§
EV AN L. SHAW and DOUGLAS M. §
HICKOK §
§
Intervenors § DALLAS COUNTY, TEXAS

FIRST AMENDED ANSWER TO
DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT: {' ·' ~~~~,.,~
'-'··",._j ' ·''
- ~
'U
Come now the Plaintiff/Counter-Defendant, VSDH VAQUERO VENtd , LTD.,
Intervenor/Counter-Defendant EVAN L. SHAW and Intervenor/Counter-Defendant DOUGLAS
M. HICKOK, jointly and hereinafter referred to as "Counter-Defendants" and file this their First
Amended Original Answer to Defendants/Counter-Plaintiffs Counterclaim and in support thereof
would respectfully show the Court as follows:

I.

The Counter-Defendants enter a general denial and demand a trial by jury of every material
issue of fact in this lawsuit.

II.

Counter-Defendants would show the Court that there is a defect in the parties in that
DOUGLAS M. HICKOK and EVAN L. SHAW are not proper Counter-Defendants in this cause of
action and are not liable for the claims made the basis of this suit.

COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page I
Ans.Cclaim.Amdl
 III.

Further answering, Counter-Defendants would show the Court that there is a defect in the
parties in that Counter-Defendants DOUGLAS M. HICKOK and EV AN L. SHAW did not
individually execute the contract in issue and are not liable for the claims made the basis of this
suit.

IV.

Further answering, Counter-Defendant DOUGLAS M. HICKOK denies executing any
written agreement made the basis of this suit in his individual capacity.

v.
Further answering, Counter-Defendant EVAN L. SHAW denies executing any written
agreement made the basis of this suit in his individual capacity.

VI.

Further answering, Counter-Defendants deny Counter-Plaintiffs' allegation that all
conditions precedent have been performed or have occurred, in that the following conditions
precedent have not been performed or have not occurred:

I. Counter-Defendants EVAN L. SHAW and DOUGLAS M. HICKOK have not
been established to have executed the contract in issue; and deny that said contract
was executed by these individual defendants;

2. Counter-Plaintiffs KEN GROSS and BETSY GROSS did not obtain written and
required approval for improvements to the property in issue; and

3. Counter-Plaintiffs KEN GROSS and BETSY GROSS have not established any
exception to the statute of frauds.

VII.

Further answering, Counter-Defendants assert that Counter-Plaintiffs are estopped from
and have waived any right for making a claim and/or for recovery herein.

COUNTER-DEFENDANfS' FffiST AMENDED ANSWER - Page 2
Ans.Cc\aim.Amdl
 VIII.

The Counter-Defendants adopt by reference all defenses and affirmative defenses set forth
in their Original Petition and any subsequent petition filed herein.

IX.

Further answering, Counter-Defendants would show that Counter-Plaintiffs' claims for
declaratory judgment are not proper as a counter petition.

x.
Further answering, Counter-Defendants would show that Counter-Defendants are not liable
to Counter-Plaintiffs because the agreement does not comply with the requirements of the statute of
frauds.

XI.

Further answering, Counter-Defendants would show that Counter-Defendants are not liable
to Counter-Plaintiffs because Counter-Plaintiffs failed to mitigate their damages.

XII.

ALTERNATIVE PLEADING

All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.

WHEREFORE, PREMISES CONSIDERED, Counter-Defendants pray that Counter-
Plaintiffs take nothing by reason of their suit and Counter-Defendants go hence without day and
with their costs in this behalf expended and for such other and further relief to which Counter-
Defendants may be justly entitled, both in law and in equity.

COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page 3
Ans.Cclaim.Amdl
 Respectfully submitted,

EVAN LANE (VAN) SHAW
Bar Card No. 18140500
LAW OFFICES OF VAN SHAW
2723 Fairmount Street
Dallas, Texas 75201
(214) 754-7110
FAX NO. (214) 754-7115
ATTORNEY FOR PLAINTIFF/
INTERVENORS/COUNTER-DEFENDANTS

CERTIFICATE OF SERVICE
/

The undersigned certifies that a copy of the foregoing ins nt was served upon the
attomey"Jford of all parties to the above cause in accordance wi the Rules of Civil Procedure,
on this day of March, 2010.
r

VAN SHAW

COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page 4
Ans.Cclaim.Amdl
 VERIFICATION

STATE OF TEXAS )
)
COUNTY OF~ )

BEFORE ME, the undersigned Notary Public, on this day personally appeared DOUGLAS
M. HICKOK, who being by me duly sworn on his oath deposed and said that he is over 21 years of
age, of sound mind and capable of making this Affidavit; that he is a Counter-Defendant in the
above-entitled and numbered cause; that he has read the above and foregoing Counter-Defendants'
First Amended Answer, and that every statement contained in Paragraphs II, III and IV is within his
personal knowledge and is true and correct.
L____ .
DOUGLAS M. HICKOK

SUBSCRIBED AND SWORN TO BEFORE ME on the dle~
day of March, 2010, to
certify which witness my hand and official seal.

<

My commission expires~D

El
·"~, JENNIFE!l LEE SATfERRELD
~, MY COMMISSION EXPIRES
iii • May7,2010

COUNJER-DEFENDANJS' FIRST AMENDED ANSWER - Page 5
Ans.Cclaim.Amdl
 VERIFICATION

STATE OF TEXAS )
)
COUNTY OF DALLAS )

BEFORE ME, the Wldersigned Notary Public, on this day personally appeared EVAN L.
SHAW, who being by me duly sworn on his oath deposed and said that he is over 21 years of age,
of soillld mind and capable of making this Affidavit; that he is a C Oilllter-Defendant int he
above-entitled and numbered cause; that he has read the above and foregoing Coilllter-Defendants'
First Amended Answer and Jury Demand; and that every statement contained in Paragraphs IT, III
and V is within his personal knowledge and is true and correct.

w
SUBSCRIBED AND SWORN TO BEFORE ME on the '.J._<'.\~y of March, 2010, to
certify which witness my hand and official seal.

/;>~~""""''~~. LORI G. MOORE
'* *'NolQIVPIJblk:. State al Texas Notary Public i
~ ;j My Ccmmlalon Expires
'<.,;...............
°' ~ May 23, 2012 State of Texas

My commission expires~\ d-..~\ ~ \d--

COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page 6
Ans.Cclaim.Amdl
 LAW OFFICES
OF
VAN SHAW 2010 HAR 29 PH ~: 08
.., '''· · .... 1. i\T LAW
ATTORNEYS AT LAW
VAN SHAW' DANIEL K. HA'b'°ooD
JANET R RANDLE 2723 FAIRMOUNT OF _
SY _ COUNSEL
_ _ __
DALLAS, TEXAS 75201
CERTIFIED P~fi!G!\l.S
• BOARD CERTIFIED IN (214) 754-7110
RHONDA VINCENT
PERSONAL INJURY FAX NO. (214) 754-7115 LORI G. MOORE
• CERTIFIED PUBLIC www.shawlawoffice.com APRILS. SUMNER
ACCOUNTANT

County Court at Law No. 1 March 29, 2010
509 Main Street VIA HAND DELIVERY
Records Building ---Phone (214/653-7556)---
Dallas, TX 75202

RE: Cause No. CC-09-05232-A;
VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery is the following:

1) First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim.

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Thank you for your sistance.

Yours very trul ,

Van Shaw
VS/Im
Enclosure - hand delivery

cc: See attached Service List.

VS.ltr2Ct.Ans2Cclaim
..
'

SERVICE LIST

Mr. R. Brent Cooper FAX (214/712-9540)
Ms. Jana Starling Reist =PH (214/712-9500) =
COOPER & SCULLY brent.cooper@cooperscully.com
900 Jackson Street, Suite I 00 jana.reist@cooperscully.com
Dallas, Texas 75202

Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

********************************

Van Shaw represents PlaintiffVSDH VAQUERO VENTURE, LTD, Intervenor, DOUG
HICKOK, Intervenor, VAN SHAW and Third-Party Defendants VSDH VAQUERO
HOMES, INC. and VSDH HOMES, INC.
TAB 7
. "\ \c
q\i?\ ~0
~VSDH VAQUERO VENTURE, LTD.
CAUSE NO. cc-09-05232-A
· ''· .·~x:,s
§ IN THE COUNTY co~~ 11PR 30 PN 2: 59
§ '-' i " - ' .
v. § AT LAW NUMBER I ' " .. '' ,·.
:~ ' ''' /, /"'",•
' •1
§
KEN GROSS and BETSY GROSS § DALLAS COUNTY,~
(J'.""L':":',in-:;------

PLAINTIFF'S FIRST-AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now Plaintiff, VSDH VAQUERO VENTURE, LTD., complaining of KEN
GROSS and BETSY GROSS, hereinafter called Defendants, and for cause of action would
respectfully show unto the Court the following:

I.
DISCOVERY CONTROL PLAN

Discovery is intended to be conducted under Discovery Control Plan Level 2 as set forth
in the Texas Rules of Civil Procedure.

II.
PARTIES

Plaintiff is a Texas limited partnership.

Defendant, KEN GROSS, is an individual who has been previously served and has
appeared by filing an answer in this lawsuit.

Defendant, BETSY GROSS, is an individual who has been previously served and has
appeared by filing an answer in this lawsuit.

III.
VENUE

Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Civil Practice &
Remedies Code.

PLAINTIFF'S FIRST AMENDED PETITION - Page I
Pet_lst-Amd.Doc
 IV.
STATEMENT OF FACTS

Upon information and belief, Plaintiff asserts the following Statement of Facts which, in
addition to other facts, support Plaintiff's causes of actions set out herein.

In June of 2007, Plaintiff, VSDH VAQUERO VENTURE, LTD and Defendants entered
into a contract for the purchase of the property located at 2004 White Wing Cove, Westlake,
Texas. (the "Property"). See Exhibit 1. 1 A First Amendment to the contract on June 12, 2007
is attached at Exhibit 2.

Subsequent to the purchase of the Property, Defendants breached the contract by
commencing construction and proceeding to make major improvements to the property without
first obtaining the consent of Plaintiff as required and thereafter made wrongful demands for
monies owed. Defendants also failed to timely comply with the contract's buy-back notice
provisions and thereafter sold the Property and incurred commissions and other costs that would
not have been incurred had the notice provisions and been complied with accompanied by a
timely triggered buy-back.

As a result of Defendants' breach, Plaintiff has incurred attorneys' fees related to this
legal proceeding related to the contract.

v.
CAUSES OF ACTION AS TO DEFENDANTS

Breach of Contract

Plaintiff would show that the foregoing allegations constitute breach of contract and said
breach has caused Plaintiff damage as a direct, proximate, producing cause and responsibility
thereof in an amount in excess of the minimum jurisdictional limits of this Court, including but not
limited to attorneys fees under the contract.

VI.
PREJUDGMENT/POST-JUDGMENT INTEREST

Plaintiff would further show the Court that many of its damages may be determined by
known standards of value and accepted rules of interest as damages from the date of loss and/or the
date such damages can be determined prior to judgment, or as the Court otherwise directs,
calculated at the legal rate, or as otherwise set by law.

1
By attaching these documents as Exhibits 1 and 3 Plaintiff does not waive any
defenses to claims raised or to be raised by Defendants with respect to any
allegation made by Defendants/Counterclaimants regarding these documents.

PLAINTIFF'S FIRST AMENDED PETITION - Page 2
Pet_lst-Amd.Doc
 VII.
ALTERNATIVE PLEADING

Plaintiff incorporates by reference and re-alleges all preceding sections of this Petition and
would further show that all pleadings herein, if deemed inconsistent, are made and should be
construed in accordance with Rule 48 of the TEXAS RULES OF CIVIL PROCEDURE.

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that upon final
trial hereof, Plaintiff recovers judgment against the Defendants for the following:

1. Judgment against Defendants for actual damages including attorneys' fees;

2. Pre-judgment interest;

3. Post-judgment interest;

4. Court costs; and

5. Such other and further relief, both at law and in equity, to which Plaintiff may be
justly entitled, both in law and in equity.

EVAN E(VAN)SHAW
Stat ar No. 18140500
ETR.RANDLE
State Bar No. 00792216
LAW OFFICES OF VAN SHAW
2723 Fairmount Street
Dallas, Texas 75201
(214) 754-7110
FAX NO. (214) 754-7115

ATTORNEY FOR PLAINTIFF

PLAINTIFF'S FIRST AMENDED PETITION - Page 3
Pet_lstwAmd.Doc
 PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) 02-13-0B
NEW HOME CONTRACT
(Completed Construotlon)
NOTICE: Not For Use For Condominium Transactions. or Clos!ngs Ptlor to Completion of construction
1. PARTIES: VSDH vaquero venture Ltd (Seller)
agrees to sell and convey to Kenneth P. Gross and Betsy L. Gross
_ _ _ _ _ _ (Buyer) and Buyer agrees to buy from Sellar the Property described below.
2. PROPERTY: Lot 11 , Block vaouero Residential
Addition, City of Westlake , County of Tarrant , Texas, known as
2004 White Wing Cove 76262 (address/zip code), or as described on
attached exhibit, together with: (I) Improvements, fixtures and all other property located thereon; and (ii) all rights,
prtvileges and appurtenances thereto, Including but not limited to: permits, easements, and cooperative and
assoctatlon memberships. All property sold by this contract Is called the "Property".
3. SALES PRICE:
A. Cash portion of Sales Price payable by Buyer at closing ................................................ $ 2. 851, 871. QO
B. Sum of all financing described below (excluding any loan funding fee
ormortgaga insurance premium) ..................................................................................... $ _ _ _ _ _ _ __
C. Sates Price (Sum of A and B) ........................................................................................... $ 2. 851, 871 00
4. FINANCING: The portion of Sales Price not payable In cash will be paid as follows: (Check applicable boxes below)
0 A. THIRD PARTY FINANCING: One or more third party mortgage loans in the total amount of
$ (excluding any loan funding fee or mortgage Insurance premium).
(1) Property Approval: If the Property doss not satisfy the lenders' underwriting requirements for the loan(s),
this contract will terminate and the earnest money will be refunded to Buyer.
[2) Financing Approval: (Check one box only)
0 (a) This contract Is subject to Buyer being approved for the financing described In the attached Third
Party Financing Condition Addendum.
O (b) This contract Is not subject to Buyer bein9 approved for financing and does not Involve FHA or VA
financing.
0 B. ASSUMPTION: The assumption of the unpaid principal balance of one or more promissory notes described In
lhe attached TREC Loan Assumption Addendum.
0 C. SELLER FINANCING: A promissory note from Buyer to Seller of$ ,
secured by vendo(s and deed of trust !lens, and containing the terms and conditions described In the attached
TREC Seller Financing Addendum. If an owner policy of title Insurance Is furnished, Buyer shall furnish Seller
with a mortgagee policy of title insurance. ,.,
6, EARNEST MONEY: Upon execution of this contract by both parties, Buyer shall deposit$]_()_,_.,o.,o,,_,o,_,,'"'o"'o'--------'-
as earnest money with Chicago Title company , as escrow agent, at
6688 N. Central #560, Dallas. TX 75206
(address). Buyer shall deposit additional earnest money of$ with escrow agent within
____ days after the effective date of this contract. If Buyer falls to deposit the earnest money as required by
this contract, Buyer will be In default.
6. TITLE POLICY ANO SURVEY:
A. TITLE POLICY: Seller shall furnish to Buyer at 00 Seller's D Buyer's expense an owner policy of tttle
Insurance (Title Polley) Issued by ~c.,h.,.i,,o,,a.,g"o'-"T-"'i-"t""l"e-"c,,om""'......_,__ _ _ _ _ _ _ _ _ _ _.,.-----,
-----,--,------,---~--,.-----,-----,-- (Title Company) In the amount of
the Sales Price, dated at or after closing, Insuring Buyer against loss under the provisions of the Title Polley,
subject to the promulgated exclusions (Including existing building and 2oning ordinances) and the following
exceptions:
(1) Restrictive covenants common to the platted subdivision In which the Property is localed.
(2) The standard printed exception for standby fees, taxes and assessments.
(3) Liens created as part of the financing described In Paragraph 4.
(4) Utility easements created by the dedication deed or plat of the subdivision In which the Property Is located.
(5) Reservations or exceptions otherwise permllted by !hiS contract or as may be approved by Buyer In writing.
(6) The standard printed exception as to marllal rights.
(7) The standard printed exception as to waters, tidelands, beaches, streams, and related matters.
(8) The standard printed exception es to discrepancies, conflicts, shortages in area or boundary !Ines,
encroachments or protrusions, or overlapping Improvements. Buyer, at Buyers expense, may have the
exception amended to read, 0 shorteges in area".
B. COMMITMENT: Within 20 da s after the Title Company receives a copy of this contract, Seller shall furnish to
B er a commitment for tit! uranc Commitment an u e(s ex ense, le Ible co lss of restrictive

EXHIBIT
" "
 2004 White W1ng Cove
Contract Concerning Westlake, TX 7 62 62 Page 2 of 9 02-13·08
(Address of Properly)

covenants and documents evidencing exceptions In the Commitment (Exception Documents) other than the
standard printed exceptions. Seller authorizes the Title Company to deliver the Commitment and Exception
Documents to Buyer at Buyer's address shown tn Paragraph 21. If the Commitment and Exception Documents
are not delivered to Buyer within the specified time, the time tor detlvery wlll be automatically extended up to 16
days or the Closing Date, whichever Is earlier.
C. SURVEY: The survey must be made by a registered professional land surveyor acceptable to the Title Company
and any lender. (Check one box only)
ll!I (1) Within 7 days after the effective date of this contract, Seller shall furnish to Buyer
and Title Company Seller's existing survey of the Property and a Residential Real Property Affidavit
promulgated by the Texas Department of Insurance (Affidavit). If the existing survey or Affidavit Is not
acceptable to Title Company or Buyer's lender. Buyer shall obtain a new survey at D Sellers ll!I Buyer's
expense no later than 3 days prior to Closing Date. If Saller falls to furnish the existing survey or Affidavit
within the time prescribed, Buyer shall obtain a new survey at Sellers expense no later than 3 days prior
to Closing Date.
D (2) Within days after the effeot/ve dote of this contract, Buyer shall obtain a new survey
at Buyers expense. Buyer Is deemed to receive the survey on the date of actual receipt or the date
specified in this paragraph, whichever Is earlier.
D (3) Within days after the effective date of this contract, Seller. at Seller's expense,
shall furnish a new survey to Buyer.
D. OBJECTIONS: Buyer may object in wrttlng to defeots, exceptions, or encumbrances to title: disclosed on the
euivey other than Items 6A(1) through (7) above; disclosed In the Commitment other than Items 6A(1) through
(8) above; or which prohibit the foltowlng use or activity:-----~------------
Buyer must object not later then (t) the Closing Date or (II) days after Buyer receives the
Commitment. ExcepUon Documents, and the survey, whichever is eamer. Buyers falture to object within the time
allowed will constitute a waiver of Buyers right to oblect; except that the requirements In Schedule C of the
Commitment are not waived. Provided Seller Is not ob11gated to Incur any expense, Seller shalt cure the ttmely
objections of Buyer or any third party lender w1lhin 16 days after Seller receives the objections and the Closing
Date will be extended as necessary. If objections are not cured within such 15 day period, this contract wll/
tenn!nate and the earnest money will be refunded to Buyer unless Buyer waives the objections.
E. TITLE NOTICES:
(1) ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering the Property
examined by an attorney of Buyers selection, or Buyer should be furnished with or obtain a Title Polley. II a
Tltle Polley Is furnished, the Commitment should be promptly reviewed by an attorney of Buyers choice due
to the time limitations on Buyers rtght to object.
(2) MANDATORY OWNERS' ASSOCIATION MEMBERSHIP: The Property 1lil ls D Is not subject to mandatory
membership In an owners' association. If the Property rs subject to mandatory membership In an owners'
association, Seller notifies Buyer under §5.012, Texes Property Code, that, as a purchaser of property In
the residential community Jn which the Property Js located, you are Obligated to be a member of the owners'
association. Restrictive covenants governing the use and occupancy of the Property and a dedicatory
instrument governing the establishment, maintenance, and operaUon of this resldent1al community have
been or wi/I be recorded in the Real Property Records of the county In which the Property Is located. Coples
of the restrictive covenants and dedicatory Instrument may be obtained from the county clerk. You are
obligated to pay assessments to the owners' association. The amount of the assessments Is subject to
change. Your failure to pay the assessments could result In a lien on and the foreclosure of the Property. If
Buyer Is concerned about these matters, the TREC promulgated Addendum for Property Subject to
Mandatory Membership In an owna(s Association should be used.
(3) STATUTORY TAX DISTRICTS: If the Property Is situated In a utility or other statutorlly created district
providing water, eewer, drainage, or flood control facilities and selVlces, Chapter 49, Texas Water Code,
requires Seller to deliver and Buyer lo sign the statutory notice relating to the tax rate, bonded Indebtedness,
or standby fee of the district prior to final execution of this contract.
(4)TIDE WATERS: It the Property abuts tha tidally Influenced waters of the state, §33.135, Texas Natural
Resources Code, requires a notice regarding coaster area property to be Included in the contract. An
addendum containing the notice promulgated by TREC or required by fhe parties must be used.
(o)ANNEXATJON: If the Property Is located outside the limits of a municipality, Seller notifies Buyer under
§5.011, Texas Property Code, that the Property may now or later be Included Jn the extraterritorial jurisdiction
of a munlc/pallty and may now or later be subject to annexation by the municipality. Each municipality
maintains a map that depicts Its boundaries and extraterritorial Jurisdiction. To determine If the Property Is
located within a municipality's extraterritorial jurisdiction or is flke/y to ba located within a municipality's
exlraterrltor/al jurisdiction, contact all municipalltles located In the general proximity of the Property for further
Information.

and Seller_--"''--- _ __ TREC NO. 24·6
Page2of9
PrQdUoe,i;.iwJlh Zlpform"' by RE FormsNe~ LLC 18025 F!neen Mlle Road, Cll~ton Towmhlp, M!chlgan 480311 mmz!o!orm com VSDH V11que10 V
 2004 White Wing Cove
Contract Concerning _ _ _ _ _ _ _ _ __,w..,e,,s,_,t.,l.,,a.,k.,,e,_,,'-"T"'X,__,_7_.6.,2..,6.,2_ _ _ _ _ _ _ _ _ page 3 of9 02-13-06
(Address of Property)

(6) PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE PROVIDER:
Notice required by §13.257, Water Code: The real property, desor!bad In Paragraph 2, that you are about to
purchase may be located In a certlficeted water or sewer service area, which Is authorized by law to provide
water or sewer service to the properties In the certificated area. If your property Is located In a certlflceted
area there may be special costs or charges that you w/11 be required to pay before you can receive water or
sewer service. There may be a period required to conslruct lines or other tacllllies necessary to provide
water or sewer service to your property. You are advised to determine If the property Is In a certificated area
and contact the uHl/ty service provider to determine the cost that you wltl be required to pay and the period, If
any, that Is required to provide water or sewer service to your property. The undersigned Buyer hereby
acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase
of the real property described in Paragraph 2 or at closing of purchase of the real property.
(7) PUBLIC IMPROVEMENT DISTRICTS: If the Property Is In a pub/le Improvement dlstrlc~ §5.014, Property
Code, requires Seller to notify Buyer as follows: As a purchaser of this parcel of real property you are
obligated lo pay an assessment to a munlclpal.ty or county for an Improvement project undertaken by a
public Improvement district under Chapter 372, Local Government Code. The assessment may be due
annually or Jn periodic Installments. More Information concerning the amount of the assessment and the due
dates of that assessment may be obtained from the munlolpal/ly or county levying the assessment. The
amount of the assessments Is subject to change. Your failure to pay the assessments could result In a lien
on and the foreclosure of your property.
7, PROPERTY CONDITION:
A. ACCESS, INSPECTIONS AND UTILITIES: Seller shall permit Buyer and Buyer's agents access to the Property
at reasonable times. Buyer may have the Property Inspected by inspectors selected by Buyer and licensed by
TREC or otherwise permitted by law to make Inspections. Seller shall pay for turning on existing utllltlas for
Inspections.
B. ACCEPTANCE OF PROPERTY CONDITION: Buyer accepts the Property In its present condition; provided
Sellar, at Seller's expense, shall complete the following specific repairs and treatments; and make the following
Improvements: All items written on inspection report as non-functi.onal: seller
will renai.r
C. WARRANTIES: Except as expressly set forth In this contract, e separate writing, or provided by law, Seller
makes no other express warranties. Seller shall ass!gn to Buyer at closlng all assignable manufacturer
warrantfes.
D. INSULATION: As required by Federal Trade Commission RegulaHons, the Information relating to the Insulation
Installed or to be installed In the Improvements at the Property Is: (check only one box below)
D (1J as shown in the attached speclflcat/ons.
D (2 as follows:
a) Exterior walls of Improved living areas: Insulated with ~--~~~-~---------
Insulation to a thickness of Inches which yields an R-Value of - - - - - - - - -
b) Wallo In other areas of the home: Insulated with
Insulation to a thickness of Inches w--.-hl'""ch~y'""ie'id'""s-a"'n"'R"'-"'V"'a'lu-e-o"f----------.
c) Ceilings In Improved J/V/ng areas: Insulated with ----~~~-~--------
Insulation to a thickness of Inches which yields an R-Value of .
d) Floors of Improved living areas not applied to a slab foundation: Insulated with Insulation to a thickness
of Inches which yields an R-Value of .
e) Other Insulated areas: Insulated with lnsulal/on to
a thickness of Inches which yields an R-Value of -~--~~----
All stated R-Values are based on Information provided by the manufacturer of the Insulation.
E. LENDER REQUIRED REPAIRS AND TREATMENTS: Unless otherwise agreed In writing, neither party Is
ob/lgated to pay for lender required repairs, which Includes treatment for wood destroying Insects. If the parties
do not agree to pay for the lender required repairs or treatments, this contract will terminate and the earnest
money will be retunded to Buyer. If the cost of lender required repairs and treatments exceeds 5% of the Sales
Price, Buyer may terminate this contract and the earnest money wl/I be refunded to Buyer.
F. COMPLETION OF REPAIRS, TREATMENTS, AND IMPROVEMENTS: Unless otherwise agreed in writing,
Seller shall complete all agreed repairs, treatments, and Improvements (Work) prior to the Closing Date. All
required permits must be obtained, and Work must be performed by persons who are licensed or otherwise
authorized by law to provide such Work. At Buyer's election, any transferable warranties received by Seller with
respect to the Work wlll be transferred to Buyer at Buyer's expense. If Seller falls to complete any agreed Work
prior to the Closing Date, Buyer may do so and receive reimbursement from Seller at closing. The Closing Date
wlll be extended up to 15 days, If necessary, to complete Work.

Initialed for identification by Buyer: f/v ' k ~ and Seller - TREC NO. 24-6
(TAR-1604) 2-13-06 r Page 3 of 9
ProducedwllhZlpForm™ by RE FormsNel, Ll.C 1ao2t1 Fine.en Mlle Road, Cllnlon Township, Michigan 48036 WNJ ilptorm.com VSDH Vaquero Y
 2004 White Wing Cove
ContractConcemlng Wegtlake. TX 76262 Page4of9 02-13-06
(Address of Property)
G. ENVIRONMENTAL MATTERS: Buyer Is advised that the presence of wetlands, toxic substances, Including
asbestos and wastes or other environmental hazards or lhe presence of a threatened or endangered species or
its habitat may affect Buyer's intended use of the Property. If Buyer is concerned about these matters, en
addendum promulgated by TREC or required by lhe parties should be used.
H. SELLER'S DISCLOSURE: Except as otherwise disclosed In this contract, Seller has no knowledge of the
following:
(1) any flooding of the Property which has had a material adverse effect on the use of the Property;
(2) any pending or threatened litigation, condemnation, or special assessment affecting the Property;
(3) any environmental hazards or conditions materially affecting the Property;
(4) any dumpslte, landfill, or underground tanks or containers now or previously located on the Property;
(5) any wetlands, as defined by federal or state law or regulation, affecting the Property; or
(6) any threatened or endangered species or their habitat affecting the Property.
I. RESIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a residential
service company llce11sed by TREC. If Buyer purchases a residential service contract, Seller shall reimburse
Buyer at closing for the cost of the residential service contract In an amount not exceeding
$ . Buyer should review any residential service contract for the scope of coverage,
exclusions and limllatlons. The purchase of a resldentlal service contract Is optional. Similar coverage may
ba purchased from various compantes authorl•ed to do business In Texas.
8. BROKERS' FEES: All obligations of the parties for payment of brokers' fees are contained In separate written
agreements.
9. CLOSING:
A The closing of the sale will be on or before Jµne 12 , 2007 , or within 7 days after
objections made under Paragraph 60 have been cured or waived, whichever date is later (Closing Date). If
either party falls to close the sale by the Closing Date, the non-defaulting party may exercise the remedies
contained in Paragraph 15.
B. At closing:
(1) Seller shall execute and deliver a general warranty deed conveying lltle to the Property to Buyer and showing
no additional exceptions to those permitted in Paragraph 6 and furnish lax statements or certificates showing
no delinquent taxes on the Property.
(2) Buyer shall pay the Sales Price in good Funds acceptable to the escrow agent.
(3) Safier and Buyer shall execute and deliver any notices, statements, certificates, affldavlis, releases, loan
documents and other documents required of them by this contract, the Commitment or law necessary for the
closing of the sale and the issuance of the Tiiie Polley.
C. Unless expressly prohibited by written agreement, Seller may continue to show the Property end receive,
negotiate and accept back up offers.
D. All covenants, representations and \varranUes In this contract survive closing.
10. POSSESSION: Seller shall deliver to Buyer possession of the Property in Its present or required condition,
ordinary wear and tear excepted: !XI upon closing and funding D according to a temporary resldenllal lease form
promulgated by TREC or other written lease required by the parties. Any possession by Buyer prior to closing or by
Seller after closing which Is not authorized by a wrltten !ease will establish a tenancy at sufferance relationship
between the parties. Consult your Insurance agent prior to change of ownership and possession because
Insurance coverage may be limited or terminated. The absence of a written lease or appropriate insurance
coverage may exposo the parties to economic loss.
11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to the sale. TREC rules
prohibit llcenseeo from adding factual statements or business details for which a contract addendum, lease or other
form has been promulgated by TREC for mandatory use.)
t) See Addendum 11
A 11 and Addendum 11 B"
~) Y•r v•~J,,...,J..,y "~"'lh.:..-y ~,..:.~l ~eai--. 1 -1k.. B'--"I'~ ~ [MAu\- IHme_cy
t<. ,._.,. +L~l.\t. .._\- 'S:loOP"" r-">i'1 •"- ~I z,"c. 'f,2-0•1.

Initialed for !dentlficaUon by Buyer~'l-''°~"'-- ~ ·?- and Seller <" TREC NO. 24·6
(TAR-1604) 2-13-06 ' Page4 of9
Produoed "'1'th ZlpForm ™by RE FormeNat, LLC 10025 Fifteen MMe Roa cl, Cllr'll.on Township, Michigan 46035 WMV-zlprorm com VSDH V11q11ero V
 2004 White Wing Cove
Contract Conoernlng _ _ _ _ _ _ _ _ _~w~e~•~t.,,.l~a'!'k~e,_.,'--c'T"'X'-2?,,6,.2""6"'2--------- Page 5 of 9 02~13·08
(Address ol Property)
12. SETILEMENT AND OTHER EXPENSES:
A. The following expenses must be paid at or prior to oloslng:
(1) Expenses payable by Seller (Seller's Expenses):
(a) Releases of existing liens, Including prepayment penalties and recording tees; release of Seller's loan
llablllty; tax statements or certificates; preparation of deed; one-half of escrow fee; and other expenses
payable by Seller under this contract.
(b) Seller shall also pay an amount not to exceed $ - o- to be applied In the following order:
Buyer's Expenses which Buyer Is prohibited from paying by FHA, VA, Texas Veterane Housing Assistance
Program or other governmental loan programs, and then to other Buyer's Expenses as allowed by the
lender.
(2) Expenses payable by Buyer (Buyer's Expenses):
(a) Loan origination, discount, buy-down, and commltmsnl fees (Loan Fees).
(b) Appraisal fees; loan application fees; credit reports; preparation of loan documents; Interest on the notes
from date of dlsbursemenl to one month prior to dates of flrst monthly payments; recording fees; ooples
of easements and resMctlons; mortgagee title policy with endorsements required by lender; loan-related
Inspection fees; photos; amortization schedules; one-half of escrow fee; all prepaid Items, Including
required premiums for flood and hazard Insurance, reserve deposits for Insurance, ad valorem taxes and
spacial governmental assessments; final compliance Inspection; courier fee; repair Inspection;
underwriting fee; wire transfer fee; expenses Incident to any loan; and other expenses payable by Buyer
under this contract.
B. Buyer shall pay Private Mortgage Insurance Premium (PM/), VA Loan Funding Fee, or FHA Mortgage Insurance
Premium (MIP) as required by the lender.
C. If any expense exceeds an amount expressly stated In this contract far such expense to be paid by a party, that
party may terminate this contract unless the other party agrees to pay such excess. Buyer may not pay charges
and fees expressly prohibited by FHA, VA, Texas Veterans Housing Assistance Program or other governmental
loan program regulations.
13. PRORATIONS AND ROLLBACK TAXES:
A. PRORATION$: Taxes for the current year, maintenance fees, assessments, dues and rents will be prorated
through the Closing Date. The tax proration may be calculated taking Into consideration any change In
exemptions that wlll affect the current year's taxes. If taxes for Iha current year vary from the amount prorated at
closing, the parties shall adjust the proretlons when tax statements far the current year are available. If taxes are
not paid at or prior lo closing, Buyer will be obligated to pay taxes for the current year.
B. ROLLBACK TAXES: If Seller's change In use of the Property prior to closing or denial of a special use valuation
on the Property results In additional taxes, penalties or Interest (Assessments) for periods prior to closing, the
Assessments wltl be the obligation of Seller. Obligations Imposed by this paragraph wlll survive closing.
14. CASUALTY LOSS: If any part of the Property Is damaged or destroyed by flre or other casualty after the effective
date of this contract, Seller shall restore the Property to Its previous condlllo.n as soon as reasonably possible, but-IA
any event by the Closing Date:-lrSeller falls to do so due to factors beyond Seller's-·control, Buyer may -let
terminate this contrnot and the earnest moneywlll be refunded to Buyer (b)-extend the time .for performanca"'p..lo
15 days and the Closing Date wlll be·extended as necessary·"'·(G} accept the Property in its damaged condition with
· an assignment of insurance proceeds and receive credit from Seller at closing In the amount of the deductible under
the Insurance policy. Seller's obligations under this paragraph are Independent of any other obligations of Seller
under this contract.
15. DEFAULT: If Buyer falls to comply with this contract, Buyer will be In default, and Seller may (a) enforce specific
performance, seek such other relief as may be provided by Jaw, or both, or (b) terminate this contract and receive
the earnest money as liquidated damages, thereby releasing both parties from this contract. ,
. .,
Sole "'"d.
beyond Sellers control, Seller fails within the time allowed to ver the ~~\:VIC.
Commitment, or survey, If re · , ay a extend the time for performance up to 16 days and the ~"""''~e-1,
'LI \-""1,.
Closing D · extended as necessary or (b) terminate this contract as the sole remedy and receive the
. If Seller falls to comply with this contract for any other reason, Seller will be in default and Buyer
ma (a) enforce speclflc performance, aeelE e1::1e[::i slh r 11 e' es ms; t ;' ; ddad b; la::, et both, or (b) terminate
2

tract and receive the earnest mane , thereb releasln both ertles. rom this contr ct.
16. MEDIATION: It Is the po cy o e e e o Texas to encourage resolution of disputes through alternative dispute
resolution procedures such as mediation. Subject to applicable law, any dispute between Seifer and Buyer related to
this contract which Is not resolved through informal discussion will 0 will not be submitted to a mutually
acceptable mediation service or provider. The parties to the med' Ion shall bear the mediation costs equally. This
ara ra h doss not reclude fro seekin e uitabfe rell om a court of com etent urlsdlctlon.
lnlllaled for Identification by Buyer ? and Seller TREC NO. 24-8
(TAR-1604) 2-13-08 Page5ofg
 2004 White Wing cove
Contract Concerning Westl.ake. IJIX 7 62 62 Page 6 of 9 02-13·06
(Addrass of Property)
17. ATIORNEY'S FEES: The prevalllng party In any legal proceeding related to this conlracl Is entllled to recover
reasonable allornsy's fees and all costs of such proceeding Incurred by the prevatllng party.
18. ESCROW:
A. ESCROW: The escrow agent Is not (I) a party to this conlraot and does not have llablllly for the performance or
nonperformance of any party to this contracl, (ii) llabla for Interest on the earnest money and (Ill) liable for the
loss of any earnest money caused by the failure of any financial tnstltutlon In which lhe earnest money has been
deposited unless the financial Institution is acting as escrow agent.
B, EXPENSES: At closing, the earnest money must be applied first to any cash down payment, then to Buye~e
Expenses and any excess refunded to Buyer. If no closing ocours, escrow agent may require payment of unpaid
expenses Incurred on behalf or the parties and a written release of liability of escrow agent from all parties.
c. DEMAND: Upon termination of lhis conlracl, either party or the escrow agent may send a release of earnest
money to each party and the parties shall execute counterparts of the release and deliver same to the escrow
agent. If either party falls to execute the release, eltber party may make a written demand to the escrow agent for
the earnest money. If only one party makes written demand for the earnest money, escrow agantshall promptly
provide a copy of the demand to the other party. If escrow agent does not receive written objection to the
demand from the other party within 15 days, escrow agent may disburse the earnest money to the party making
demand reduced by the amount of unpaid expenses I.curred on behalf of the party receiving the earnest money
and escrow agent may pay the same lo the creditors. If escrow agent complies with the provisions of this
paragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of the
earnest money.
P. DAMAGES: Any party who wrongfully falls or refuses to sign a release acceptable to the escrow agent within 7
days of receipt of lhe request will be liable to the other party for liquidated damages of three times the amount of
the earnest money.
E. NOTICES; Escrow agent's notices will be effective when sent In compliance with Paragraph 21. Notice of
objeclion lo the demand will be deemed effective upon receipt by escrow agent.
19. REPRESENTATIONS: Seller represents lhat as of the Closing Date there will be no liens, assessments, or security
Interests against the Property which will not be satisfied out of the sales proceeds. If any representation or Seller In
this contract Is untrue on the Closing Pate, Seller will be In default
20. FEDERAL TAX REQUIREMENTS: If Seller is a "foreign person," as defined by applicable law, or If Seller falls to
deliver an aftldavll to Buyer that Saller Is not a "foreign parson,• then Buyer shall withhold from the sales proceeds
an amount sufficient to comply with applicable tax law and deliver the same to the Internal Revenue Service
together with appropriate tax forms. Internal Revenue Seivlce regulations require filing written reports If currency In
excess of specified amounts Is received In the transaction.
21. NOTICES: All notices from one party to the other must be In writing and are effective when malled to,
hand-delivered al, or transmltled by facsimile or electronic transmission as,follows:

To Buyer To Seller
at: at:
1430 Eagle Bend Drive 5305 Village Creek

Southlake. TX 76092 Plano. TX 75093

Telephone; _(fil,]J4.,2~1.:-::.o4.,8"'3"4'------ Telephone: (972) 732-1155

Facsimile: _______________ Facsimile: 'IJl--1:>-i.-k& ""~'\ "'' ~ ;{o"'-1"· "-'J-
, 'j ~ /
Initialed for Identification by Buye'r-"" Pf-".__ /'\ L and Seller ______c"J."'-"--- TREC NO. 24-6
(TAR-1604) 2-13-06 1::-T Page 6 of 9
Prod~ced With ZlpForm™ by RE FcrmsNet. LLC 1B02P Fine en MUe Read, Clinton Town:Jh!p, Michigan 48036 w.wJ zlgftlrrn com VSDH Vaquero V
 2004 White Wing Cove
Contract Conoornlng Westlake . '!'~ 7 6262 !='age 7 of9 02-13-08
(Addre.ss of Property)

22. AGREEMENT OF PARTIES: This contract contains the entire agreement of lhe parties and cannot be changed
except by their written agreement. Addenda which are a part of this contract are (check all applicable boxes):

0 Third Party Financing Condition Addendum 0 Addendum for "Back-Up" Contract

0 Seller Financing Addendum 0 Environmental Assessment, Threatened or
Endangered Species and Wetlands
Addendum
l&I Addendum for Property Subject to 0 Addendum fo.r Coastal Area Property
Mandatory Membership In an Owners'
Association

0 Buyers Temporary Residential Lease 0 Addendum for Property Located Seaward of
the Gulf lntracoastal Waterway
0 Addendum for Sale of Other Property by ll!I Other (list): Addendum "A" &
Buyer Add@ndum nan

~

'
23. TERMINATION OPTION: For nominal con~deratlon, the receipt of which Is hereby acknowledged by Seller, and
Buyer's agreement to pay Seller$ N · l'l-- (Option Fee) within 2 days after the effective date of
this contract, Sejler grants Buyer the unrestricted right to termlnata this contract by giving notice of termination to
Seller within /I A\:- days after the effective date of this contract. If no dollar amount is stated as the Option Fee
or If Buyer fails to pay the Option Fee within the time prescribed, this paragraph will not be a part of this contract and
Buyer shall not have the unrestricted right to terminate this contract. If Buyer gives notice of termination within the
time prescribed, the Option Fee will not be retunded; however, any earnest money will be refunded to Buyer. The
Option Fee 0 will 0 will no! be credited to the Sales Price at closing. Time Is of tho essence for this
paragraph and strict compliance with the time for performance Is required.

24. CONSULT AN ATTORNEY: Real estate licensees cannot give legal advice. READ THIS CONTRACT
CAREFULLY. If you do not understand the effect of this contract, consult an attorney BEFORE signing.

Buyers
Attorney Is: f1/JC/; 2. 11'{&€/U-utAI

Telephone: --{.8h,1-/__,_2_-_,fL.L'f~)~,____---"'/.)o.....t.7'-1-/_ __ Telephone: 7-l'l -1 ~D .....-~:i:~h~~~es•;;i1<;1 --'!01 - 0(7/
Auu~ P Ji<5 7'/.. L/ 7::;W> Facsimile: ,;2;q -.!'(al ·41b'J
Cltv , State Zip
TREC NO. 24-6
(TAR·1604) 2-13-06 Page 9 of 9
 PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) 02-13-08

SUBDIVISION INFORMATION, INCLUDING
RESALE CERTIFICATE FOR PROPERTY SUBJECT TO MANDATORY
MEMBERSHIP IN AN OWNERS' ASSOCIATION
(Section 207.003, Texas Property Code)

{NOT FOR use WITH CONDOMINIUMS)

Resale Certificate concerning the Property (Including any common areas assigned to the Property)
located at 2004 White Wina Coye (Street Address), City
of Westlake , County Of Tarrant; 1 Texas, prepared

by the property owners' association (the Owners' Association).

A. The Property 0 is 0 is not subject to a right of Hrst refusal or other restraint contained in the
restrictions or restrictive covenants that res~lcts the owner's right to transfer the owner's property.

8. The current regular assessment for the Property is$· 1 • sa 1 . o o per _ __,,s.,e"'m.,i..::-,.a"'n"n"'u"a""l""l~y---

C. A special assessment for the Property due after the date the resale certificate was
prepareQO, Hyrst, 1 ~K 2§05§
' (Malling Address)

rnui 215-21~~ rn17121s-n:rn
(Telephone Number) {Fex Number)

M. The restrlclions li5) do Odo not allow foreclosure of the Owners' Association's lien on the Property for
failure to pay assessments.

REQUIRED ATTACHMENTS:

1. Restrictions 5. Current Operating Budget

2. Rules 6. Certificate of Insurance concerning Property
and Liability Insurance for Common Areas
3. Bylaws and Facl!l!les

4. Current Balance Sheet 7. Any Governmental Notices of Health or
Housing Code Violations

NOTICE: This Subdivision Information may change at any time.

VamJ§~Q HQ~owner•~ A~§Qgist~on
Name of Owners' Association

By:

Title:

Malling Address:

E·mall:

Date:

This fonn has boon approved by the Texas Roal Eslale commission far use only wllh slmllarty approved or promulgated contract forms.
No represenlaVon Is made as to the legal valldlly or adequacy of any provision In any specific transaction. Texas Roal Eslale Commission,
P.O. Box 12188, Austin, TX 78711·2188, 1-800-260-8732 or (512) 459-6544 (hllp:llwww.trec.slale.tx.us) TREC No. 37·2. This fonn
replaces TREC No. 37·1.

TREC NO. 37-2
(TAR-1923) 2-13-06 Page 2 of 2

Produced wilh ZlpForm™ by RE FormaNel, LLC 18026 Fifteen Mlle Road, Cllntc11 T0M15hlp, Miehlgan 48035 ~fQJm&Qm_ YSDI I Vaquero V
 PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) 02-13.06

ADDENDUM FOR PROPERTY SUBJECT TO
MANDATORY MEMBERSHIP IN AN OWNERS' ASSOCIATION
(NOT FOR USE WITH CONDOMINIUMS)
ADDENDUM TO CONTRACT CONCERNING THE PROPERTY AT
2004 White Wing Cove Westlake
(Street Address and City)
Vaquero Homeown•r's AS$OQiation
(Name of Owners 1 Association)

A. SUBDIVISION INFORMATION: "Subdivision Information" means: (I) the restrictions applying to the subdivision, (II)
the bylaws and rules of the Owners' Association, and (iii) a resale certificate, all of which were provided by the
Owners' Association In compliance with Section 207.003 of the Texae Property Code.
Check only one box):
' ~
the Subdivision Information to Buyer. If Buyer, does not receive the Su a on, Buyer may
terminate the contract at any time prior to closing and t · ey wlll be refunded to Buyer. If Seller
delivers the Subdivision lnforma ermlnate the contract for any reason within 7 days after
Buyer rece ts on Information or prior to closing, whichever first' ocicurs, and the earnest
er.
£i' 2 Buyer has received and approved the Subdivision Information before signing the contract.
"O 3. Buyer does not require delivery of the Subdivision Information.
lf Seller becomes aware of any material changes in the Subdivision Information, Seller shall lmmedlately give
notice to Buyer. Buyer may terminate the contract prier to closing by giving written notice to Sellar If: (I) any of the
Subdivision Information provided was not true; or (II) any material adverse change In the Subdivision Information
occurs prior to closing, and the earnest money will be refunded to Buyer.

B. FEES: Buyer shall pay any Owners' Association fees resurting from the transfer of the Property,.nst to e11eeeel
, $818 11 a11dSeUe1 s11a!ipaya11yexcass.

NOTICE TO BUYER REGARDING REPAIRS BY THE OWNERS' ASSOCIATION: The Owners' Association may have
the sole responsibility to make certain repairs to the Property. If you are concerned about the condition of any part of the
Property which the Owners' Association is required to repair, you should not sign the contract unless you are satisfied
that the Owners' Association will make the desired repairs.

-{/'.
Seller VSDH Vaquero Venture Ltd,
i(S j)if fur;u..r ,-a:;...._- bf>.

Seller

Tha form of this addendum has been approved by !he Texas Real Estate Commission for usa only with slmflar!y approved or
promulgated forms of contracts. Such approval relates to this contract form· only. TREC forms are Intended for use only by
trained reel estate !lcensees. No repreaenlallon Is made as to the legal velld!ly or adequacy of any provision Jn any specific
transactions. It 18 not Intended for complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-
2188, 1-800-260-8732 or (6'f2) 459-6544 (http:flwww.trec.s!ate.b:.us) TREC No. 36·4. This form replaces TREC No. 36·3.

(TAR-1922) 2-13-06 Page 1of1
Vaquero Residential Realty 1405 Fountain Grass Ct, Wes!lako TX 76262
Phone:8174306600 Pex: 817-430-6601 Vaquero Residential Re-11lly, LL V.SDR Vaqucro V
Produced wlth ZlpForm™ by RE FormsNet, LLC 1S025 Fifteen Mlle Road, CllntM Township, MJchlgan48030 ww.y.zjprorm com
 A»DMDPMA
t. JIUY BACK OPTION: VSDH Vaquero Vonture Ltd. (VSDH), 1111 Beller, hmby
srants lo KC111!0lh P. and Bolay L. Groll (Clroa•), oa Buyer, of 2004 White WlnJ
Cove iii Vaquero subdivision, Woallab, T6X81 (tho Pro~rty) tho option (tho
"Buy Baok Oplion") to put tho Properly to Soller (i.e., requiro Soller to rcpurohue
tho Property for tho origjnol "Solos Pri""" of $2,8Sl,871.00) on Soplember l,
2009, or auoh oarlior dato 118 may be mutually agreed between Buyer and Seller, ill
wrllillg (tho "Buy !lack Dalo''), subject to tho followin.g tontt8 and conditions:·

(a)' DllCLARATION DATB: On or bolbrv May i, 2009, (tho "Declerallon
Dato"), lluyer must oxonilso·lho Buy Bad< Option by delivering writ!cn
notice thereof to Seller (tho "Buy Baolc Option Notlco''· ~ fur BUY
reMon, Seller has not received tho Buy Beok Option Noli..,, on or bof019
5:00, loco! time in DallM/Pmt Worth, Toxoa, onlhe Deolaratlon Delo, then
Buyer shall have waived tho Buy BllCk Option and same shall bo null
avoid. ·

(b) BUYl!R BXBRCISBS TllB BUY BACK OPTION: If Buyer timely and
properly exeroiaos tho Buy Baok Oplion, then tho following shall apply:
(f) Buyer may. not sell or oonvoy any rlghl, title or interoat in and to the
Property to any third party unlCBB Soller broachea Its obllgstion to
rq>uroltaao lho Property pul'IUlll!t to tho Buy Baok Option due to no lilult
of Buyer; (II) Soller may conunenoo miu1f to Seller, and tho Property
shall bo fn tho samo condltton as existed on the original Closing Dato, plus
an,y Soller approved lmprovomenta, loss reasonable wear aud tear, with all
meobanloal, elcotrioal, plumbing and other syalems and componOllle fn
good woridng order and in a ''broom-<>loan". ootldltlon. Prior to tho
Declaration Dal!>, tho B11yor oan anter lnto a contrsot to tho sell tho
Ptoperty and will be entllled to all prooeods ftom auch sale. Should lh•
Bu;)ll>r onlor Into a con1Jaot to sell the property, the Buy Baok Option wlll ·
lnmu:dlaloly letminate and will no IOJl8or bo awllable to Buyer. If,
howovor, Buyer timely and properly oleots to invoke Ibo Buy Baok Option
and Ibo oloslng of tho repurohaso l4kos plsco, lhon Buyer walvea and
· relinquishes an,y and all olalms they may have to any proceeds ftom tho
subsequent aolo oftho Prop6rty by Soller, and Buyer shall not bo lillblo lbr
any loss Incurred by Soller &om tho subsequent salo of tho Property.

(c) CASUALTY: If tho Propotty is ~a111a9ed by fire or other ooaualty the cost
of whlob to repair Is equal to or greatot than $100,00.00, lhon, llollo1 llWI),
at Ms eptlon1 eMt to cdlher (i) ~•ftlM"• the Buy..Bao~ Opt±onfull ~d void,

· Pege l of~] k6- JlJI-. ~
~#lld Se11bija\doua\Loca) SttlfnSl\nruponry
.,,,.,{8.9Pl!)Ao< -
lntmrc,J:Fllt«JLK.6A\Ad~ A ~ ~"' Coo!Jletv3
 If the cost to repair is less than $100,000, then Buyer shall, at Buyer's sole
cost and expense, repair and restore the home to its prior condition in
order for Buyer to have the right to exercise 1he repurchase option. If
Buyer fuils to timely and properly repair and restore the Property prior to
Buy Back option date, then Seller may tenninate the Buy Back Option.

2. BUYER"S IMPROVEMENTS: Before commencing construction, Buyer
will review with Seller the plans and specification and receive general
consent (consent not to be unreasonably withheld) to proceed with the
improvements. Buyer will periodically (on a reasonable basis) update
Seller regarding progress and timelines on completing the improvements.
Sellei· understands that Buyer has the right to make minor changes and
decisions during the process of completing the improvements provided
they are in 1he best interest of completing the improvements in the most
logical and reasonable manner. Buyer will also complete the
improvements (i} in a good workmanlike manner, free from material
defects, (ii) in accordance with all laws, ordinances, statutes, rules,
regulations and any and all restrictions and other matters of record
applicable thereto; and (iii) free of any liens or claims of any kind or
character, and Buyer shall absolutely and unconditionally save, defend, or
indemnify and hold harmless Seller from and against any and all
reasonable attorney's fees and disbursements and all damages which may
arise by reason of Buyer's perfonnance of any work thereto or Buyer's
failure to do as required hereby or the Escrow Agreement (hereinafter
defined).

3. ESCROW AGREEMENT: The attached Addendum B is a spreadsheet of
improvements and costs proposed by the Buyer to be made to the
Property. A total of$156,871.00 oftbese improvements has been
incorporated into the $2,851,871.00 Sales Price. Buyer agrees to escrow
funds totaling $156,871.00 with the Title Company and enter into an
Escrow Agreement (herein so called), acceptable to Seller and Buyer, that
outlines the proposed improvements to the property and the disbursement
of such funds. Buyer accepts risk of any improvement cost overruns in
excess of$156,871.00, however, ifimprovements costs do not exceed the
$156,871.00 allocated budget, Buyer may use the remaining funds and
apply to other improvements not specified in Addendum B.

4. Doub Hickok and Van Shaw as partners in VSDH Vaquero Venture Lts.
Each hereby personally guaranty Sel1er's obligations under the Buy Back
Option granted from VSDH to Buyer hereunder. In the event VSDH fails
to perform fully under the tenns of the Buy Back Option, each of its
partners set forth hetin above shall be personally responsible, jointly and
severally, to perform the obligations ofVSDH under the Buy Back
Option.
5. Buyer reserves the right to cancel Buy Back Option after the declaration
date provided that Seller has not entered into a purchase contract with a
third party on 2004 White Wing.

In addition, in paragraph 15 in the body of the contract under DEFAULT, Seller
reinstates language stricken "seek spch other relief as may be nrovided by law, or
both:n
 ------'--------·~ -----~--·--- -

ADDENDUMB
2004 White Wing - 1092 Sq Ft Addition • Casita w/ FR, Bedroom, Shared Pool Bath

1500
...
2000
1750
800
En ineeer 500
Permit 1500
Trash Haul 1000

546 8 4,368
Piers 8' x 24" 19 200 3,800
Step 1 200 200
Pump Truck - Estimate 1 1500 1,500
Front Patio 156 3 468
Back Patio to Pool 522 3

••
••

- • I I

1,000
Electrical 1092
Electrical - Additional Art Cans I Switches 15 185 2,775
Lightening Rods 750 750
 --"----

NV I Alarm I Door Bell / Intercom
•
Stone Material tons) 25 145
..
.2,000
3,625
Stone Labor - Casita 831 6 4,986
Stone Labor - Wall-Off A/C 72 6
Stone Border Around Front Patio 45 10
Stone for Front Patio Gale - Material & Labor 1 300

4
546 5
1 1200

14
1500
...

Paint & Stain - Addition & New Cabinets 1092 6 6,552
: •• •
Paint - Master 1 500 500
Paint - Fo er 1 600 600
Paint - FR 700 700
Paint - Halls 600 600
Paint - Stairs 1 300 300

--·
Paint - BR# 4 & Bath 1 400 400

..
Faux for Above Rooms

Wood - Casita Down
1 3000
:
3,000
••
Slate - Pool Bath
Car et - Casita Bedroom and Media
Pool Bath Shower
•
1,000

A liances 3000 1,500
 . ...L. -

Base Price 2,695,000
Addition 126,851
Remodel 30,020
Purchase Price 2,851,871

Purchase Price or Contract Price to be: 2,851,871
Seller to pay for improvements totaling: 156.871
Any improvments over 156,871 are at Buyer's expense
If improvmenets cost less than 156,871, Buyer wil be refunded the difference
 ~~
TEXAS ASSOCIATION OF REALTORS®
INTERMEDIARY RELATIONSHIP NOTICE
USE OF THIS FORM 8Y PERSONS 'M-iO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REAL TORS® 15 NOT AUTHORIZED
©Texas Association of REAL TORS®, loc. 2004

To: ----------~V~S~D=H~V=a.,au.,._,e=r~o~V=e~n~t~u~rce~L=t=d~·-~-------- !Seller or Landlord)
and Kenneth P. Gross ~ \:>et-.s.'{ L • EJ..-o SS (Prospect)
From: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ! B r o k e r ' s Firm)
2004 White Wing Cove
Re: =W=e=s=t=l=a=k=e~=T=X~~7=6~2=6~2_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Property)

Date:

A Under this notice, "owner' means the seller or landlord of the Property and "prospect" means the above-named
prospective buyer or tenant for the Property.

B. Broker's firm represents the owner under a listing agreement and also represents the prospect under a buyer/tenant
representation agreement.

C. In the written listing agreement and the written buyer/tenant representation agreement, both the owner and the
"r prospect previously authorized Broker to act as an intermediary if a prospect who Broker represents desires to buy or
lease a property that is listed by the Broker. When the prospect makes an offer to purchase or lease the Property,
Broker will act in accordance with the authorizations granted in the listing agreement and 1n the buyer/tenant
representation agreement.

D. Broker 0 will [fil will not appoint licensed associates to communicate with, carry out instructions of, and provide
opinions and advice during negotiations to each party. If Broker makes such appointments, Broker appoints·
_____________________________ to the owner: and

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - t o the prospect.
E. By acknowledging receipt of this notice, the undersigned parties reaffirm their consent for broker to act as an
intermediary

F Additional information: (Disclose material information related to Broker's relationship lo the parties, such as personal
relationships or prior or contemplated business relationships.)

The undersigned acknowledge receipt of this notice

lb
Seifer or Landlord
>
Date Date
VSDH Vaquero Venture Ltd.

Seller or Landlord Date Date
Betsy L. Gross

(TAR-1409) 1-7-04 Page 1 of 1
Vaquero Residential Realty 1405 Fountain Grass Ct., Westloke TX 76262
Phone:8174306600 Fax. 817-430-6601 Vaquero Residential Realty, LL VSDH Vaquero V
Produced with ZrpForm™ by RE ForrnsNet, LLC 18025 Fifteen Mile Road. Clinton Township, M1ch1gan 48035 www zipform.com
 ADPENPUMA
1. BUY BACK OPTION: VSDH Vaquero Venture Ltd. (VSDH), as Soller, hereby
grants to Kenneth P. and l3etsy L. Groos (Gross), as Buyer, of2004 White Wins
Cove in Vaquoro subdivision, Westleke, Texas (tho Proporty) tho option (tho
''Buy Back Qption'' to put tho Property to Seller (i.o., requlro Seller to repurohaso
the Property for Ute original "Soles Price" of $2,851,871.00) on Saptomber 1,
2009, or suoh oarlier dato "" may ho mutually agreed between Buyer and Seller, in
writing (tho ''Buy Back Date"), subject to tho followlnl! tenns and conditions:·

(a)- DECLARATION DATE: On or bolbro May i, 2009, (tho '~laration
Date"), Buyer must oxeroJso th• lluy Back Option by dellvor!ng written
notice thereof to Seller (the "Buy Baok Option Notioo'?. 1f, for any
reason, Soller has not reoeived tho Buy Baok Option l\fotioo, on or before
S:OO, loco! tlmo ln Dallas/Port Worth, Toxas, on !ho Declaration Dare, !hon
Buyer &hall have waived the Buy l3ack Qption and same shall bo null
J avoid. ·

(b) BUYER BXBRCISBS T.HE BUY BACK OPTION: IfBuyer timely and
properly exerolsos tho Buy Back Option, then the following shall opply:
(I) Buyer may. not sell or convey any right, title or interest in and to the
Property to any third par!Y unl688 Seller breaches its obligation to
repurohase tho Property pursuant to tho Biiy Baok Option due to no foul!
of Buyer; (ii) Soller may eoJnmonco marketing the Property· for aalo on
May 2, 2009, and Buyer agrees to fully eooperato with all marketing
of!brta of Seller; and (Iii) on or before September 1, 2009, unlosa Buyer
and Sellar •fl!'.••
upon another stated date in writing, Buyer shall vacate the
Property and deliver t\J.tl poaaeaslon thare<>f to Seller, and tho Property
shall be in the sumo condiilon as existed on tho original Closing Dato, plus
aey Seller approved improvements, leas reasonal>le wear and tear, with all
mechenloal, oleotrioal, plumbing and other systems and components Jn
good working order and in a ''broom-oloan". concllt!on. Prior to tho
Deolatatlon Date, tho Buyer can enter lnto a eontraot to tho sell tho
Proporty and will ho ont!Ued to all proeeeda from auoh sale. Should tho
Buyer enter into a contraot to sell the property, tho Buy Baok Option wlll
immedlatoly 1onninato and will no longer be available to Buyer. If,
however, Buyer timely and properly elects to invoko tho Jluy Back Option
and tho closing of tho repurohaao takes place, then Buyer waives and
· relinquishes any and all claims they may have to any proceeds from tho
subsequent sale oftho Prop&rty by Soller, and Buyer shall not be llablo fur
any loSi ln0U1Ted by Soller from tho subsequent aalo of tho Proporty.

(c) CASUALTY: If the Property is qumaged by fire or other casualty the cast
ofwhich to repair is equal to or greater fh\ln $100,00.00, thon,.lle!lw ma,,

!!!: ,/\/""-
•I ii• opllo•1 oleet to oilhor (i) doe!.,.• tho Buy-Baek Qpllonfull ll!'d void,

. . Pagolof(1 /ENDDMA

t. BUY BACK OPTJ'.ON: VSDH Vaquein Ven!w'O Ltd. (VSDH), as SoJ!et, heRby
grants to Kllll!10fh P. and Betsy L. Groa$ (Gwas), ~ Bllyor, of 2004 Wlille ~
Cow in V,.quoi:o sub~ W~laki!. ~ (tlte~):!M QPtlon (tho
"Buy B'IClt Oi>1ioli? topJ!t1hol'mperl;Y to Sl!)lor (f~,:tequl~ $ellerto 1'Cjll1l'cillag
tho P:toperty for tho o1!8jual "Sales l'rlee'' of $2;851,871.oo) on September l,
2009, or euoli elll"lietda(Colatafion
Dl\IO''), Buyor muet ex«olse·the Buy Back ClPtion fly • • writw.n.
notice thereof to Seller (tho "Buy Baok Option No~?. ~ :8>r sny
muon, Sollet hall nol teeelved tllll Buy Baok Op~ NOl!OO, on or belb.16
5:00, 1ooal lime hi DallM!llort Worth, Texas, on tho Declaration Date, th$1
Buyer Shall have waived 1ho Buy Bao!t O,plion and smne aJWl be null
avoid. ·

(b) BUYl!R BXRR.CJSBS Tf1B BUY BACK OPTION: IfBuyer timely and ·
properly exeroises the Buy BllCk Oj)llon, tl\on tho following sball apply:
(i) Buyer may. nol se11 or OOJtVoy any right, title or interest in and lo tho .
Property to any lhinl party unless Sollor broaches ifs oblfgajlon to
repurchaao lho Properly pumlllltto lllo Buy Baok Op!lon due to no iim1t
of Buyer; 61) Sell61' may C, and Buyor agrees to fully oooper11to with alt mad, plus
any Soll£ approved lmprovemenls, lesa roaso.nabh> wear and tear, withal!
mechanlll41, elelll tho
aubseqlU:llt aato 0£111& Pmpertyb.y sener. and Duy« shall not be l!db1o !bi
aey loss lncutted by Seller flom tho subsequent aale ofthol'!pperly.
(e) CASUAL'l'Yi If thol'toperty is ~amaged by fire or othor ossualtytho cost 1_ l//-ltJi<
. :::!;~"l:!=::~~~::tho~:~~Fi== ~\·
. . l'Pgelo(f~ "'~ ~~
•· ~Sot~~~-l'UK'.OU venture I.td (Seller)
agreeslosellandconveytoRennat:h P. Gross and Betsy L. Gross
- - - - - - (Buyer) and Buyer agrees to bey from Seller tho Property described below.
2. PROPERTY: Lot 11 , Block , Vaquero )lesidentia.1
Aqd!Uon, Clly of !Iest1ake , Counly of !farrent , Texas, known as
2004 !!bite Wing Cova 7§2€2 (addressfZip code), aras described on
attached exhibit, together with: (Q Improvements, fixtures and all other property focafe\i thereon; and Qi) all rights,
privileges and appurtenances !hereto, fncfadlng but not llmlfed to: permits, easemenls, and ccoperafive and
association memberships. NI property sold by !his cont-aot Is called the "Property''. 17 '· q ,.. ~ 0
3. SALES PRIG!:: "l.j~ •1° 0 ' 0
A. Cash portion of Sales Prloepayable by Buyer at closing ................................................. $ z ,851 871. OO·
8. Sam of all financing descdbed below (excluding any loan funding ree> .. $ V' 7 (,,<\.>~ .,..., .., ~
. .
or morrgage lnsuranoe premium) ..............................., .................,................................... W 1 • • .
O. Sales Price (Sum of A and B) ........................................................................................... $ g , a!U ,en . Mr
4. FINANCING: The portlon of Sales Prtoe not payable in cash will be paid as folfows; (Check appficable boxes ~loW)
O A. THIRD PARTY FINANCING: One or more third· party mortgage loans in the toial amount ·of
$ (excluding any loan funding fee or mortgage Insurance premium).
(1) Property 'Approval: If the Property does not satisfy the lenders' underwriting requirements for lite loan(s),
this contract wm termlnate and the eamest money will be refunded to Buyer.
(2) Flnanolng Approval: (Check one box only) . · . ·
D (a) This contract Is subject to Buyer being approved for the financing dascrlbed In the attached Third
Party Financing Condltlon Addendum.
O {b)Thfs contract Is not subject to Buyer being approved For financing and does. not Involve FHA or VA
financing.
D 8. ASSUMPTION: The ilSSUmptlon of the unpaid principal balance of one or more proin!ssory no\es described In
the attached TREC Loan Assumption Addendum. ·
O c. SEl.LER FINANCING: A promissory note flom Bayer to Seller of$ . ,
secured by vendots and deed of trust liens, and containing the terms and ocndltlons descdbed In the a!lached
IBEC Seller Financing Addendum. ff an owner policy of Ufta Insurance rs furnished, Buyer shaU fUrnlsh Seller
wlih a mortgagee policy of ttfie Insurance. "' ...
e. !:At!NEST MONE:Y: Upon execuUon of this contract by bolh parties, Buyer shall deposit .$-SO« ooo: ·o.o · '
as earnest money with Chioacro IJ!i f.le Comoanv , as escrow agen~ at
6688 'N, Cantra,l #560. Dallas. TX 75206
(address). Buyer shaU.deposit additional earnest money of$ with ascrow agent within
.,,.--- days after the.effective date of this contract. If Buyer falls to daposlt the earnest money as required by
this contract, Buyerwlll be In deiault
$, TITLE POLICY AND SURVEY:
A..TITLE:POUCY: Seller shalt tumlsh to Buyer a! fiil Seller's I:I Buyer's .expense· an owner··pallcy·of.iltle ..
Insurance (Tiiie Palley) issued by ~Ch~i~o~a.,a;,,a,_...~~it~l~e~C.,om.,,p,.a~n"'y'-----=---~~---­
- - - - - - - - - - - - - - - - - - - - - - - - (Tiiie Company) In the amoantof
Iha· Sales Prtoe, dated at or after closliig, Insulins Buyer against loss under the provisions of the 11!\e Policy,
subject to !he promulgated exclusions Qnc!udlng exisUng building and zoning ordinances) and the following
exceplfons: · .
(1) Res!rlcUve covenants common to the plaited subdivision In Which the Property !s locatad.
(2) The etanderd prtnted excepllon for standby fees, taxes and asoessments. .•'
(3) · Liens created as pa it of the financing deserlbed lh Paragraph 4.
(4) Ullllty easements oreatad by lha dedication aeed or plat of Iha subdivision ln which the Property ls located.
(6) Reser\laJlons or excepllons otherwfse·penn!Hed by this contract or as may be approved by Buyer In wrltlng.
($) The standard printed exception as to marifal rights.
(7) The standard printed exception as to waters, tidelands, beaches, streams, and related matters.
(8) The standard pnnted ·exception as to' discrepancies, oonfjiots, shortages In area or boundary Unee, .
encroachments or protrusions.- or averlappln,g Improvements. Buyer, at Buyer's expense, may have !he
exception amended to read, 'shortages In area". .
B. COMMITMENT: Wilhln 20 d a ~r the Title Company receives a copy of !his contrao~ Seller shall furnish to
B er a commitment tor tit uran Comml!menf an er's ex ense, I Ible co es of restrlotive

EXHIBIT
I ...J-
I 2004 White Wing Cove
Contract Concernfng _ _ _ _ _ _ _ _~w~e~•~t,_l~a~k~e~T'C'X"-~7~6~2~6~2~-------- Page 2 of 9 02-13·06
{Address of Property)

covenants and documents evidencing exceptions fn the Commitment (Exception Documents) other than the
standard prtnted exceptions. Seller authorizes the Titfe Company to deliver the Commitment and Exception
Documents to Buyer at Buyer's address shown fn Paragraph 21. If the Commitment and Exception Documents
are not delivered to Buyer within the speclfled time, the time for delivery will be automaticalfy extended up to 15
days or the Closing Date, whichever Is earlier. ·
C. SURVEY: The suNey must be made by a registered professional land surveyor acceptable to the TI!le Company
and any fender. (Check one box only)
fill (1) Wrthln 7 days after the effective date of !his contrac~ Seller shall furnish to Buyer
and Title Company Seller's existing survey of the Property and a Residential Real Property Affidavit
promulgated by the Texas Department of Insurance (Affidavii). ff the existing suNey or Affidavit Is not
acceptable to Title Company or Buyer's lender, Buyer snail obtain a new survey at D Seller's !XI Buyer's
expense no later then 3 days prior to Closing Date, If Seller falls to furnish the existing survey or A.."fldavit
within the time prescribed, Buyer shall obtain a new suNey at Seller's expense no later than 3 days prior·
to Closing Date.
D (2) Within days after the effective date of this contract, Buyer shall obtain a new survey
at Buyer's e~ense. Buyer is deemed to receive the survey on the date of actual receipt or the date
specified in this paragraph, whichever Is earlier.
0 (3) Within days after the effective date of this contract, Seller, at Seller's expense,
shall furnish a new survey to Buyer.
D. OBJECTIONS: Buyer may object in wliting to defects, exceptions, or encumbrances to title: disclosed on the
survey other than items 6A(1) through (7) above; disclosed In the Commitment other than items 6A(1) through
(8) above; or which prohibit the following use or a c t i v i t y : - - - - - - - - - - - - - - - - - -
Buyer must object not later than (i) the Closing Pate or (ii) 7 days after Buyer receives the
Commitment, Exception Documents, and the survey, whfchever is earlier. Buyer's failure to object within the time
allowed will constitute a waiver of Buyer's right to object; except that the requirements In Schedule C the of
Commitment are not waived. Provided Seller fs not obligated to incur any expense, Seifer shall cure ihe timely
objections of Buyer or any third party lender within 15 days attar Seller receives the objections and the Closing
Date will be extended as necessary. If objections are not cured within such 15 day period, this contract will
termtnate and the earnest money will be refUnded to Buyer unless !luyerwalves the objections.
E. TITLE NOTICES:
(1)ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering the Property
examined by an attorney of Buyer's selection, or Buyer should be furnished with or obtain a Title Polley. If a
Tltle Policy Is furnished, the Commitment should be promptly reviewed by an attorney of Buyer's choice due
to the time limitations on Buyer's right to object.
(2) MANDATORY OWNERS' ASSOCIATION MEMBERSHIP: The Property fill ls 0 Is not subject to mandatory
membership fn an owners' association. If the Property ls subject to mandatory membership fn an owners'
association, Seller notifies Buyer under §5.012, Texas Property Code, that, as a punchaser of property In
the residential community In which the Property is located, you are obligated to be a member of the owners'
association. Restrictive covenants governing the use and occupancy of the PropeJ1¥ and a dedicatory
instrument governing the establishment, maintenance, and operation of this rasfden!Jal community have
been or will be reconded in the Real Property Reocrds of the county in which the Property is located. Coples
of the restrictive covenants and dedicatory instrument may be obtained from the ocunty clerk. You are
obffgated lo pay assessments to the owners' association. The amount of the assessments Is subject to
change. Your failure to pay the assessments could result In a lien on and !ha foreclosure of the Property. If
Buyer Is concerned about these matiers, the TREC promulgated Addendum for Property Subject to
Mandatory Membership In an Owner's Association should be used.
(3) STATUTORY TAX DISTRICTS: If the Property Is situated In a utility or other statutorily created dlslrtct
providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Texas Water Code,
requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness,
or standby fee of the distnet prior to final execution of this contract. ·
(4) TIDE WATERS: ff the Property abuts the tidally lnfiuenced waters of the state, §33.135, Texas Natural
Resources Code, requires a notice regarding coastai area property to be Included in the contract. An
addendum containing the notice promulgated by TREC or required by the parties must be used.
(5)ANNEXATION: If the Property Is located outside the limits of a munlclpalfly, Seller notifies Buyer under
§6,011, Texas Property Code, that the Property may now or later be included In the extraterritorial jurlsdicllon
of a municipality and may now or later be subject to annexation by the municipality. Each municipality
malntalns a map that depicts Its boundaries and extraterritorial Jurisdiction. To determine if the Property is
located within a municipality's extraterrltorlal jurisdlclion or Is flkely to be located within a municipality's
extralerr!torial jurtsdfctlon, contact all municlpalltles located in the general proximity of the Property ior further
Information.

.
Initialed for identification by Buye~ k'?. and Seller ru TREC NO. 24·6
. (TAR·1604) 2·13·06 l I Page2 of9
Produc:ettwlllt Zlpfoimm by RC: FormsNe~ LLC 1B02.5 Fln.een Mlle Road, OHnton Township, Michigan 48036 wuwz!pform.com VSDH Vaqueio y
·. ; ____.___

2004 White Wing Cove
Conlracf Concernfng Westlake, TX 76262 Pag&3of9 02-13·06
(Address oiProperty)

(6) PROPERTY LOCATED IN A CERTfFICATED SEf 15.
B. At closing:
(1) Seller shall execute and deliver a general warranty deed conveying title to the Property to Buyer and showing
no additional exceptions to those permitled in .Paragraph 6 and furnish tax statements or certificates showing
no delinquent taxes on the Property.
(2) Buyer shall pay the Sales Price In good funds accep)able to the escrow agent.
(3) Seller and Buyer shall execute and deliver any nolices, statements, certiftca!as, affidavits, releases, loan
documents and ofi\er documents required of them by this contract, the Commitment or law necessary for the
closing of the sale and the issuance of the TI!le Policy.
C. Unless expressly prohibited by written agreement, Seller may continue to show !he Property and receive,
negotiate and accept back up offers. ·
D. All GOVenants, representations and warranties in this contract survive closing.
10. POSSESSION: Seller shall deliver to Buyer possession of the Properly in its present or required condition,
ordfnary wear and tear excepted; llil upon closing and funding D according to a temporary residential lease form
promulgated by T~EC or other written lease required by the parties. Any possession by Buyer prior lo closing or by
Seller after closing which ls not authorized by a written lease will establish a tenancy at sufferance relationship
between the parties. Consult your insurance agent prror to change of ownership and possession because
insurance coverage may be limited or terminated. The absence of a written lease or appropriate insurance
coverage may expose the parties to economic loss.
11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable lo the sale. TREC rules
prohibit licensees from adding factual statements or business details for which a contract addendum, lease or other
form has been promulgated by TREC for mandatory use.)
-k) See Addendum 11
A 11 and Addendum 11 B 11
t!.) Vof--v•Ji:P""- f--""''1'1 ;...._ ~J \f°k,<- lf, 2-<)•1 .

./
Initialed for ldenUfication by Buyer,'l""H'..l;/""'--- /l!f~R ·
any .even! by the-Closing Date;-Jf-SeJJer falls· to do so due to factors beyond Sel!el's-control, Buyer may.-Ea)- ,. ;. ,. i
.terminate this contract and the·earnest· money-wm be refunded to Suyer-(llj-el<'lk
beyond Sellers control, Seller fails within the time allowed to m e ver 'the ~~(~·
Commitment, or survey, If re , e may a extend the time for performance up to 16 days and the ·· j1t0ii(~~
Closing D extended as necessary or (b) terminate this contract as the .safe remedy and receive the ·
• If Seller fails to comply with this contract for any ot.~~r.reason, ~eller wlll . be In default and Buyer
(a) .enforce speclflc perfo.JT!lance, aeelt e!ieR aUier wlief aq ffl~®).d:f0~.¥~;~-El e; leu, .er both, or (b) terrnfnata
ntract and receive the earnest money, thereb releasln both· a1,ue&.uum this contract.
16. Ml;ODIATION: It Is the po cyri e e of Texas to enoourage'reiiolutlori of disputes through alternative dispute
resolution procedures such as mediation. Stib)eot to appllcable Jaw, an dispute between Seifer and Buyer related to
this contract which Is not resolved through lnfOrmal discussion 'will D will not be submitted to a mutually
acceptable mediation service or provider. The parties to the med' Ion shall bear the mediation casts equally. This
ara ra h does not reclude fro seekin e uitable rell om a court of com etent urtsdlctlon.
· · fnitliired for ldentlfioatlori by Buyer .?. and Seller ·. TREC NO. 24-ti
(TAR-1604) 2-13-06 Page 5 of$
 -·-····•··--'-

2004 White Wing Cove
Contract Concerning Westlake, TX: 76262 P"lJo6of9 02-13-06
(Address of Property)
17•. ATTORNEY'S FEES: The prevalllng party In any legal proceeding related to this contract is enttued to recover
reasonable attorney's fees and all costs of such proceeding Incurred by the prevailing party,
18. ESCROW:
A. ESCROW: The escrow agent Is not (i) a party lo this contract and does not have liability for the peJformance or
nonperformance of any party to this contract, (ii) liable ior lniarest on the earnest money and 011) liable for the
loss of any earnest money caused by the failure of any ftnancial institution Jn which the earnest money has been
deposited unless the financial Institution is acting as escrow agenl _
B. EXPENSES: At closing, the earnest money must be applied first to any cash down payment, then to Buyefs
Expenses and any excess refunded to Buyer. If no closing occurs, escrow agent rnay require payment of unpaid
expenses Incurred on behalf of the parties and a written release of liability of escrow agent from all parties.
C, DEMAND: Upon termination of this contract, either party or the escrow agent may send a release oi earnest
m0ney to each party and the parties shall execute counterparts of the release and deliver same to the escrow
agenl If either party falls to execute the release, eJtf)er party may make a written demand to !he escrow agent for
the earnest money. If only one party makes wrttten demand for the earnest money, escrow agent'shall promptly
provide a copy of the demand to the other party. If escrow agent does no! receive written objection to the
demand from the other party Within 15 days, escrow agent may disburse the earnest money to the party making
demand reduced by the amount of unpaid expenses Incurred on behalf of the party receiving the earnest money
and escrow agent may pay the same to the creditors. If escrow agent complies with the provisions of this
paragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of the
earnest money.
D. DAMAGES: Any party who wrongfully fails or refuses to sign a release acceptable to the escrow agent within 7
days of receipt of the request will be liable to the other party for liquidated damages of three times the amount of
the earnest money.
E, NOTICES: Escrow agent's notices will be eifectlve when sent ln compliance with Paragraph 21. Notice of
objection to thil demand wlll be deemed eifeotlve upon receipt by escrow agent.
19; REPRESENTATIONS: Seller represents that as of the Closing Date there Will be no liens, assessments, or security
Interests against the Property which will not be satisfied out of the sales proceeds. If any representation of Seller in
;· this contract Is untJUe on the Closing Date, Seller Wiii be In default.
20. FEDERAL TAX REQUIREMENTS: If Seller is a '~oreign person,' as defined by applicable law, or if Seller fails to
deliver an af(ldavlt to Buyer that Seller Is not a "foreign person,' then Buyer shall withhold from· the sales proceeds
an amount sufficient to comply with applicable tax raw and deliver !he same to the Internal Revenue Service
together with appropriate tax fonns. Internal Revenue Service regulations require filing written reports If currency In
excess of speciffed amounts is received in the transaction.
21, NOTICES: All notices from one party to the other must be in writing and are effective when malled to,
hand-delivered a~ or transmitted. by facsimile or electronic transmission as.follows:

To Buyer To Seller
a.. .
at:
"
1-430 Eagle Bend Drive 5305 Vil1aae Creek

Southlake. TX 76092 Plano. TX 75093

Telephone: (817) 421-4B34 Telephone: 1972) 732-1155

Facsimile: _ _ _ _ _ _ _ _ _ _ _ __ Facslmlle: "IJi..-'12><--ltlt i'l"ti-t:'\"'i~s rol.lf'" iJJ-
E-malc --------~-----

Initialed for identification by Buys,.. "' ~
/, 1./)
J\ ' - and Seller
E-mail:

11 '-
/ -TREC NO. 24-6
. (TAR-1604) 2-13-06 V- I ' Page6 oi9
Produced\'/!~ ZlpForm?' by ~E Fo~Ne~ LtC 18025 Fifteen Mlle Road, Clinton Township, Mlch!Qan 46035 WWW zrori;irm.com YSPHV11qtr:ro V

------------------- - - - - - - - - - - - - - - -
 2004 White Wing Covs
Coi:Jb"liicn Coneeittrlng 1!'Qll:!J.l&t' ~ '1§'.2~" P•ga 7 ot~ 02-1$.0ll
(Ad6- of Pl'Opotly)
:22.. AGREEMENT OF PARTIES: This contract conl9fns the entire sgteament of !ha ~ and caru10t be cllanged
EOO;ept by thefrwrilten agreement Addenda which are a part of tllle contrai;:t ere (check all appllcabfe boms):

Cl Third Pa11y Flnanclng Cort<:!Hlon AddBlldum 0 Addendum for "Bac1'-lJp• Conb:ao!
0 Setter Aoanclng Addendum 0 Environmental Assas$)'11ent, Throatenec! or
Eodangerecr Speclllll and Wethmds
AMendum
0 Aaden(!um toe Properly SubJact lo 0 Addendum ror Coastal Area Property
Mal'ldatory Membarshlp In an Owners'
Assoc!llllon

0 Buyer's Tempor;iry Residenllal Lease Cl Addendum ~Property Located Seawrd of
1he Gutf lnltacoas!al WS.tet'i'/ay
0 Addendum for Sale ot Other Properly by 11!1 Other Qlst): ad:d§tlldwtt. ~r~q ~
Mdendrnn n1,1u
~ar

23. TCRMlf'IATION OPTION: For nominal con,:;erallon. the receipt of which Is h&reby aekr'lowledgad b'j SeKer, and

this conlrac~
Seller within II--
f7F
Buyets agreeme11t !O pay Seiter$ N l'l-' {Opllon Fee) within 2 days after the etreot!di!ed to lhe Sales Prlos al closing. l'trrut Is of Ille -nee for this
paragrapl!i all([ strict compliance wttb tbs time for porf'Qrmance Is required. .

24. CONSUL! AN ATTORNEY: Real e&a.re licensees cannot give legal advl6e.. REAO THIS OONTRACT
CAREFUi.LY. If you d~ not under"S-tand ttis effect Of il11s" contraot.. consult an attotney BEFORE; signing.

Buyer's
Attorney ts: f1#CI( '2 l~N1£. ft:.-M nA/ =~yls: lut\0;e,l Jt(i+,..-e) £.-b,J~)
' G.t.TI JJ. Ce.."\-«..\ '4i'w'\·J <>....... 5,-
OA-llltr 11'>'- 1.n.of..

Telephone: 8/7- :fr i\'>
. TREC NO. 24-6
{TAR-1604) 2-13-0S Paoe7of9
. • , ~~ %Igf'.Q~~b)' ltl! 1Cltllif'.l~t, t.LC1a.'»:5 A.llMn Mt~ R,otd, cnnf.oft 'lbwmnfp. M!Ohfpin ~& 'tNN(tleforn'f Com · .• VS!>B Ytqut® V

SSQJE)
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C..,,..,.Con_ 2004 White
H'•&:tla ks:I ,
W~n~
~3 2 62: ii2
(Mdto .. of Ptoporl)')
P"40 8of9 ~2-1J.4lll

EXECUIEO Ute day of (eFFECTIVJ: DATE).
{BROKER: FILL lN THE DATI! OF FINAL ACOEPTANcg.) '
-··
.

Tllfa co11tt.act ls subject to Chapb!r 27 Of the
Te> '(-s.~lt ~~&P.
tile construotlon ~ .rt requested b>' 6"'
contCvide the cot1'!tllctor, an
opportunf!y to Inspect and cure the defeot !IS
prOYlded U'f Seclfon 27.004 of the Texas
Property Code. Seifer

-

Tha l\mn of thlo c:on!raot has b~ spprmred by Iha Texllll fCesl Estate Co!n""4slon. mec {orll'IS "°' ltl!ended for"""only by
trafl1(ld rear OSlafa Pcenaees. No n!p1'!sanlall<>n ls mod& aa to Ille log$f \l.$lldlty 111' adequacy of 8f'/ provJsron rn any apeelfto
' tmnsso!IOl'Je._lt f$ not !nmded foreompl"" tmnsactlonL T~ Reale.tote Comm~lon. P.O. Box 121sa, Auslln, 1X 78711-2188.
Hl()().,250.8732 or (612) ~ (h1lp!l/www.1tao.ota!e.IX.U•) TRIOC NO. 24-S. This form replacM TReC NO. 24-5•
..
TREC NO. 24-6
(l'AR-1804} 2-13-0S . Page8ot~
. .l'<>xl•codw!Ulpfonn'"byRIU'""""'~UC<.... ,,_M!iol\ood,Cll\IOJIT_ _ • ..,.. ,_,.,,,,,, .... VSOS:Voq"""V
.f ..... -··-· - . . .- ...... ··--···.. .. .

BROKER INFORMAllOlllAflD AA'llFICATIDl>I O;P FEE
U•Vn~ a~ him actetd b l>"f Other 8roll.t.r t=*
of Ille IOtl!ll pdtI b awll<>llzill!l.
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OPTION l'l!E RECEIPT
Receipt of$ _ _ _ _ _ _ _ (Opllon ""9) in ll>ttfolill Of _ _ _ _ _ _ _ _ _:._faaeknoW!odge~ 0(9
 FIRST AMEND111ENT TO NEW HOME CONTRACT

THIS FIRST Afv!ENDMENT TO NEW HOME CONTRACT (the "Amendmenf') is entered into
by and betwei;n VSDH VAQUERO VENTURE, LTD., a Texas limited partnership (the "Seller"), and
KENNETH P. GROSS and BETSY L. GROSS (collectively, the "Purchaser'').

WITNESSETH:

WHEREAS, Seller and Purchaser entered into that certain New Home Contract dated effective as
of June 4, 2007 (the "Contract"), providing for the sale by Seller to Purchaser of a tract of land located at
2004 White Wing Cove, WestJfilcf,, Tarrant County, Texas (the "Property") and being more particularly
described in the Contract; and

. WHEREAS, Seller and Purchaser desire to amend the Contract as hereinafter set forth.

NOW, THEREFORE, based on these facts and in consideration of the mutual benefits to be
obtained by this Amendment, Seller and Purchaser agree as follows: ·

L Amending Provisions. The Contract is hereby amended as follows:

(a) Paragraph 9.A. of the Contract is hereby amended to provide that the date and time for
the closing to be fully consummated and funded shall be extended to occur on or before noon on Friday,
June-29, 2007 (the new "Closing Date"); prpvided, however, that as a Condition Precedent (herein so
called) to such extensioµ, Purchaser and Seller hereby agree that Purchaser shall ·deliver to the Title
Company the following: (i) a fully executed copy of this Am~ndment; (ii) a or a wire transfer or cashier's
check made payable to the Title Company, in the amount of Fifty Thousand and No/100 Dollars
($50,000.00), which shall be added to and comprise a portion of the earnest money being held under the
Contract; (iii) a cashier's check made payable to Seller, or a wire transfer to the Title Company in care of
Seller, in the amount of Eight Thousand, Five Hundred and N6/100 Dollars ($8,500.00) as a non-
refundable extension fee which shall not be credited toward the Sales Price (the "Extension Fee"). In
addition, the Extension Fee shall be increased by Five Hundred and No/JOO.Dollars ($500.00) for each
day after June 29" that passes until the closing is fully consuinmated and funded, and Purchaser shall pay
same to Seller no later than at closing.

(b) Inasmuch as Purchaser was not ready, willing or able to consmnniate the closing as. and
·when required by the Contract and Seller has already tendered fuil performance of its closing obligations,
· this.Amendment constitutes an offer by Seller to extend the Closing Date, and if this Amendment is not
. fully executed and delivered by Purchaser to' Seller and the Condition Precedent is not fully satisfied on or
before 4:00 p.m. local time in Dallas, Texas on June 20, 20Q7, then the following shall automatically
apply: (i) Seller's offer to extend the Closing Date shall be fully rescinded, (ii) Purchaser shall be in
. default under the Contract, (iii) Seller shall be deemed to have terminated the Contract and entitled to
retain all of the earnest money on deposit with the Title Company, and (iv) Purchaser shall vacate the
Property.

(c) There are rio other amendments.

2. ConBequence of Amendment. Nothing in this Amendment affects or modifies any of the
provisions of the_ Contract, except as expressly provided herein. The Contract,. 'as amended by this
Amendment, will continue in full force and effect and is ratified and affirmed by Seller and Purchaser as
if originally written as herein amended.

Page I of3

C:\Docum:nts az:d Setti.. as may ho mutually asreed betweonBuye.r eud Seller, in
writing (the ''Bo;v Back Date''). subject to the following terms andeonditions:·

(a)· DECLABATJON DATE: On or beli:>re May i, 2009, (the ''.O~laration
Dale''), Buyer tnust ~xeroJs•,.th• !luy Back Option by deli'l'ering written
notice thereof ro Seller (the ''Buy Ba1>k Option Noli~<>''). n; fur any
:reason, S~er .It~ not received the Buy Baek Option N'otloo, on or before
S:OO, looa!timeln Dallas/Fort Worth, Texas, onilteDeolaratlonDate, !hon
Buyer shall have waived the Jluy Back Option iu1d ·~ shall be null
avoid, ·

(b) BUYER EXERCISES '.l1lB BUY BACK OPTION: .If Buyer timely and ·
properly exeroioes tho Buy Back Option, t!\en tho following ahall apply:
(i) B11yer may.1to! se11 or oonvoy any i:lgbt, title or inter~t in and to the .
Property to IU1Y thW party unless Sellar broaches its obilgaflon to
repurollase the Property purau!tnt to tho Bu.y Baok Option due to no iilult
of Buyer: [Ii) Seiler may aoounenoo marketing the .P.ropor!}; for sale an
May 2, 2009, and Buyer agrees to fully cooperafe with all matke!ing
efforts of Seller; l!lld (iii) on or before Soptomber r, 2009, unless Buyer
and Soller all"'• upon anotheE staled datWd improvomenls, loss reasonablo wear and war, with all
mechanioal, e!octrlcal, plumbing and other •Y.Btems and componenla in
good vioiking order llll_d in a "broom-clean''. coltditloo. Prlor to tho
Declaration Dale>, tho Buyer oan enter into a eontraot to the soil the
P.rapcrty and wlll be enl!Ui:d to all proceeds from such B!ile. Should the
Buyer enter:lnto a contract to soil the property, !ha Buy Baok Option. will
· Immediately terminate and will no longer be available kl Buyor. If,
howevor, Buyer thnely l!lltl properly elects to invoke th" Buy Be.ok Option
and !ho olosltig of !M repurobase tm.. placa, then Buyer walVOB and
· relinquishes auy and all ~!alms !hey may h11v• to ally proooeds fu>m the>
s11llsequenteale ofthi! Property by SelleJ; arul Buyar shall not b" lil!blo fu~
llll}' loss !ncutted by Seller from the aubsequettt sale oftlte:Proporty,

.·
 ·--- ------------

Tfthecostto .repairis losstlmn $1-00,000, then Buyer shall, atBuyer'ssole
cost and expense, repair lll!d restore the home to :its prior condition in
order for Buyer to hav'" the right to eJ>.'etcise the repurchase optiop. If
Buyer ihlls to timely and properly repair and restore the Properly prlorto
Buy Back option date, then. Seller may terminate the Buy Back Option.

2. BUYER"S IMPROVEMENTS: Befure commencing construction, Buyer
m11 review with Seller the plans and specification and receive general
consent (consent not to he unreasonably withheld) to proceed with the
improvel!lents. Buyer w!ll periodicslly (on a reasonable basis) update
.Se.ller regsrding progress and timelines on completing the improvements.
Seller understands that Bnyer has therlghtfo make minor changes end
decisions during the process ofcompleting 1he improvements provided
.. 1hey are In the best interest of completing the improvements in tho most
logical and reasonable m~·. Buyer will als1> complete thi>
improvements (i) in a good worlanaolike manner, free from material
defue!s, (ii) in aocordance with all laws, ordinances, statutes, rules,
reg.ulations and any and llllrestriotions and othennattem ofrecord
appli¢ahle thereto; and (ill) free ofany liei:is or claims ofany kind or
cluiracter, end Buyer shall absolutely aod unccnditlonally save, defend, or
imlemnify and hold harmless Sellerfrrun and against any and all
reasonable attorney's rees filld disbmwments and all damages whicltlllJly
arise byretlSOll. ¢'Buyer's peribDlll!IWe ofany work fueteto or Boyer's
.:fuifure to doss required hereby or the Escrow Agreement (hereinafter
defined).

3. ESCROW A.GREEMBNT: The ar.aoh..-d Addendum B is a spreadsheet of
=:;;~ts ancl costs proposed by !he Buyer to be maae to tbe . 1r-\-eJt>'?"'/
&yet agrees to =row/ ~
funds tolal.ing $156 • mpany WJd en~ into an ·
Escrow Agreement (herein so called), acceptable to Seller and.Buyer, that
outlllres the proposed improvements to the property anil the disbursement
ofsuch fund/I. Bnyel.' acceptarisk of any improvement cost C>YemJJlS in
excess of$1S6,871.00, however, ifimprovements cosh! do not exceed the
· --·------------ ·- -·- ·-··---· ··--· --·- - ----· -- · ·-f156,87l.OO allocated bridget, Buyer may use the remaining funds mid
apply to otherhnprovenwnls not.speoified in Addendum B.

4.. Doub Hiclrol::and VanShawaspa.-tners:iJ). VSDHVaqnero VentureLm.
;.· Each hereby personally guaranty Selle1's obligatians under the Buy Back
Option gtaIJted from VSDH to Buyer hereunder. In the event VSDH fails
to perl'onn fully under the lx:!:ms of the Buy Back Option, each ofits
partners set furfh heJ.in above·?Jiall be persanally responsible, jointly and
severally, lo poribrm the obligations ofVSDH under the Buy Back
·Option.

! .
 -
....

S. · Bul'l'f = t h e right to canrel Bu:~·::siu;:k bption after the declllX>llim't
d.alf> provldcd that Sdller has not e:nt=d into apurollttsc coottac::t wiih a
thiJ:d pmty o.u 2004 White W'tng.. .
Inllrldition. in.pamgraph 15 in tbc body ofthe ~under lJEFAULT, Seller
reimlates Iangaage slrlcl::ett "seek. sgcb ntb« rclief!IS mu bQ provided by law. Qt
. l!!!!b::

I
'

-·· ·~--- ......... ---······-··~- .. "···-·---··-··· . --·· ....... ......
·~ -~~·---.. -·- ·--···- - · - · - ... ·•--- , . , .• . . . _ . _ , , . , , _ , . _ P- •••-----• • ' ... ,.
 'I
I
:mmrlll•n

Stone Labor - Wall-Off NC 6 432
Stone Border Around Front Patio 45 10 450

1092
Paint - Master 1 500
Paint - Faver 1 600
Paint- FR 1 700
Paint- Halls 1 600
Paint - Stairs 1 300
Paint-BR#4 & Bath 1 400
~------

--:r

1000
Apollances 3000 1,500

}f(.

kv-·f\
 C.OOperOScully A /'m/o.1wn<1/ Curporarwn

JANAS. REIST

June 2, 2010

VIA HAND DELIVERY

John Warren
County Court Clerk
300 Records Bldg.
509 Main Street
Dallas, Texas 75202

Re: VSDH Vaquero Venture, Ltd. v. Kenneth P. Gross and Betsy L. Gross, Cause No.
CC-09-05232-A, on file in the County Court at Law No. 1, Dallas County, Texas
Our File No.: 1903-17168

Dear Mr. Warren:

Attached please find an original and one (1) copy of Ken Gross' and Betsy Gross' Second
Amended Counter-Claim Against VSDH Vaquero Venture, Ltd., Evan L. Shaw, and Douglas M
Hickok and First Amended Third-Party Petition Against VSDH Vaquero Homes, Inc. and VSDH
Homes, Inc. for filing in the above referenced matter. Please return via the waiting courier a
copy of the filed stamped copy for our file. Plaintiffs counsel will receive a copy of this filing
via facsimile and certified mail.

If you have any questions, do not hesitate to contact the undersigned.

Sincerely yours,

~~\~~
Jana S. Reist

Founders Square 900 Jackson Street, Suite 100 Dallas, TX 75202
Telephone (214) 712-9500 Fax (214) 712-9540
www.cooperscully.com

Houston Office (713) 236-6800 San Francisco ()ffice (415) 956-9700 Sherman Office (903) 813-3900
D/767483.J
June 2, 2010
Page 2

JSR/tsh
Attachment

Cc: Evan Lane (Van) Shaw (via certified mail &facsimile 214. 754. 7115)
Law Offices of Van Shaw
2723 Fairmount Street
Dallas, Texas 75201
Attorney for Plaintiff

D/767483.1
TAB 9
I
iJ,:i , '' '(.

CAUSE NO. CC-09-052~foc~~ :·•
·/.,12;"
VSDH v AQUERO VENTURE, LTD. § IN THE COUNTY CmRq;4
§
Plaintiff §
§
v. §
§
KEN GROSS and BETSY GROSS § ATLAWNUMBER I
§
Defendants §
§
v. §
§
EVAN L. SHAW and DOUGLAS M. §
HICKOK §
§
Intervenors § DALLAS COUNTY, TEXAS

COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER AS AN ADDITION
TO COUNTER-DEFENDANTS' FIRST SUPPLEMENTAL ANSWER AND
COUNTER-DEFENDANTS' FIRST AMENDED ANSWER TO
DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

Come now Plaintiff VSDH VAQUERO VENTURE, LTD., Intervenor/Counter-Defendant
EVAN L. SHAW and Intervenor/Counter-Defendant DOUGLAS M. HICKOK, jointly and
hereinafter referred to as "Counter-Defendants", and file this their Second Supplemental Answer as
an Addition to Counter-Defendants' First Supplemental Answer and Counter-Defendants' First
Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim, and would respectfully show
unto the Court the following:

I.

The pleadings and assertions set forth herein supplement and are in addition to Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and Counter-
Defendants' First Supplemental Answer in Addition to Counter-Defendants' First Amended
Answer to Defendants/Counter-Plaintiffs' Counterclaim. None of the contentions, assertions nor
defenses set forth in Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs'
Counterclaim and/or Counter-Defendants' First Supplemental Answer in Addition to Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim are
withdrawn. This is to be read in addition to and in conjunction with Counter-Defendants' First

COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER IN ADDITION TO FIRST AMENDED ANSWER - Page I
Ans.Cclaim.Amd 1.Supp2
Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and Counter-Defendants' First
Supplemental Answer in Addition to Counter-Defendants' First Amended Answer to
Defendants/Counter-Plaintiffs' Counterclaim.

II.

Further answering, Counter-Defendants would show that Defendants/Counter-Plaintiffs
KEN GROSS and BETSY GROSS first breached the contract made the basis of this suit and, as
such, released Counter-Defendants from all responsibility thereunder.

III.

ALTERNATIVE PLEADING

All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.

WHEREFORE, PREMISES CONSIDERED, Counter-Defendants pray that Counter-
Plaintiffs take nothing by reason of their suit and Counter-Defendants go hence without day and
with their costs in this behalf expended and for such other and further relief to which Counter-
Defendants may be justly entitled, both in law and in equity.

EV AN LANE (VAN) SHAW
BarCardNo.18140500
LAW OFFICES OF VAN SHAW
2723 Fairmount Street
Dallas, Texas 75201
(214) 754-7110
FAX NO. (214) 754-7115

ATTORNEY FOR PLAINTIFF/
INTERVENORS/COUNTER-DEFENDANTS

COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER IN ADDITION TO FIRST AMENDED ANSWER- Page 2
Ans.Cclaim.Amd l .Supp2
 CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing instrument was served upon the
attomey~rd of all parties to the above cause in accordance w. ith the Rules of Civil Procedure,

on this day of October, 2010.

. ,,-
! /

COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER IN ADDITION TO FIRST AMENDED ANSWER- Page 3
Ans.Cclaim.Amdl .Supp2
 J: ,

LAW OFFICES
OF ?011.r
VAN SHAW
GZ';
'<1
IJ;:
ATTORNEYS AT LAW ·-'~ ., . . lt:o.
2723 FAIRMOUNT
. '.DANIEL K HAGOOO
........ 11 .•
~
VAN SHAW DALLAS, TEXAS 75201 'AF COUNSEL ··,!;I
JANET R. RANDLE (214) 754-7110 . -~-----
ERIC GREEN FAX NO. (214) 754-7115 CERTIFIEb F'ARALEGALS
RHONDA VIN-~T
www.shawlawoffice.com LORI G. MOORE
•CERTIFIED PUBLIC
ACCOUNTANT APRILS. SUMNER

County Court at Law No. 1 October 21, 2010
509 Main Street VIA HAND DELIVERY
Records Building =PH (214/653-7556) =
Dallas, TX 75202

RE: Cause No. CC-09-05232-A;
VSDH Vaquero Venture, Ltd v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery are the following:

1) Counter-Defendants' Second Supplemental Answer as an Addition to Counter-Defendants'
First Supplemental Answer and Counter-Defendants' First Amended Answer to
Defendants/Counter-Plaintiffs' Counterclaim; and
2) Counter-Defendants' Objection to the Affidavit of Kenneth P. Gross attached to Counter-
Plaintiffs' Partial Motion for Summary Judgment Against VSDH Vaquero Venture, Ltd.
and Douglas M. Hickok on Counter-Plaintiffs' Breach of Contract Claim and Declaratory
Judgment Action

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Thank you for your assistance.

Yours very truly,
I

vans~/
VS/Im
Enclosures - hand delivery

cc: See attached Service List.
Mr. Doug Hickok, Via E-Mail (dhickok@marquisgroup.net)
Ms. Darcy Topolski, Via E-Mail (dtopolski@marquisgroup.net)
 SERVICE LIST

R. Brent Cooper FAX (214/712-9540)
Jana Starling Reist =PH (214/712-9500) =
COOPER & SCULLY brent.cooper@cooperscully.com
900 Jackson Street, Suite 100 jana.reist@cooperscully.com
Dallas, Texas 75202

Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

Kenneth B. Chaiken FAX (214/265-1537)
Chaiken & Chaiken, P.C. =PH (214/265-0250)=
One Galleria Tower kchaiken@chaikenlaw.com
13355 Noel Road, Suite 600
Dallas, Texas 75240

Attorney for Intervenor DOUG HICKOK

********************************

Van Shaw represents Plaintiff VSDH VAQUERO VENTURE, LTD, Intervenor, VAN
SHAW and Third-Party Defendants VSDH VAQUERO HOMES, INC. and VSDH
HOMES, INC.
TAB 10
 Filed
11 April 28 P1:48
John Warren
County Clerk
Dallas County
CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD. § IN THE COUNTY COURT
§
Plaintiff/Counter-Defendant, §
§
v. §
§
KEN GROSS and BETSY GROSS § AT LAW NUMBER I
§
Defendants/Counter-Plaintiffs, §
§
v. §
§
EVAN L. SHAW and DOUGLAS M. §
HICKOK §
§
Intervenors/Counter-Defendants, § DALLAS COUNTY, TEXAS

INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

TO THE HONORABLE JUDGE:

Intervenor/Counter-Defendant Douglas M. Hickok ("Hickok") files this Amended and

Supplemental Answer to Defendants/Counter-Plaintiffs' Ken Gross' and Betsy Gross'

Counterclaim, and respectfully shows as follows:

1. Hickok previously has asserted (and he continues to assert) the following

affirmative defenses and/or specific denials to the Grosses' counterclaims:

a. The Grosses breached the subject contract and released Hickok from
responsibility thereunder;

b. The Grosses' counterclaims and third-party claims are barred by the
economic loss doctrine;

c. There is a defect in the parties, Hickok is not a proper party and is not liable
in the capacity in which he has been sued;

INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM Page 1
 d. There is a defect in the parties in that Hickok did not individually execute
the contract made the basis of this suit and is not liable for the claims made
the basis of this suit;

e. Hickok denied execution of any written agreement made the basis of this
lawsuit in his individual capacity;

f. Hickok denies the Grosses' alleged compliance with conditions precedent,
and he pleads failure of conditions precedent, including:

1. denial of execution of the subject contract;

11. failure of the Grosses to obtain written and required approval for the
improvements of the property; and,

111. failure to establish exceptions to the statute of frauds;

g. Estoppel and waiver;

h. Negligence;

1. Failure to state a viable claim for declaratory relief;

J. Claims bar under the statute of frauds; and,

k. Failure to mitigate.

2. Based upon issues and facts raised by the Grosses in briefs filed within the past

two weeks, and upon certain summary judgment rulings made by the Court in that time period

and as recently as April 22nd, pleading further or alternatively as may be necessary, Hickok

pleads as follows:

a. The Grosses' counterclaims to enforce the alleged guaranty made the basis
of this lawsuit against Hickok are barred by the doctrine of impossibility
of performance;

b. The Grosses' counterclaims to enforce the alleged buy-back provision made
the basis of this lawsuit are barred by the doctrine of illusory contracts or
promises;

INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM Page2
 c. The Grosses' collllterclaims to enforce the alleged guaranty made the basis
of this lawsuit against Hickok are barred by a failure of or incomplete
execution of the alleged guaranty agreement by one of the alleged
guarantors;

d. The Grosses' collllterclaims to enforce the alleged guaranty and the buy-
back obligation made the basis of this lawsuit are both barred by lack of
consideration and/or a failure of consideration;

e. To the extent the alleged guaranty obligation is found to be enforceable
against Hickok (which he continues to deny), any recovery from Hickok is
limited to his limited partner's contribution at the time the alleged guaranty
was made; and,

f. The Grosses counterclaims for fraud or breaches of alleged off-contract
understandings are barred, in whole or in part, by the doctrine of merger.

WHEREFORE, Counter-Defendant Douglas M. Hickok prays that Collllter-Plaintiffs take

nothing by their suit against him, and that he be discharged with costs of court, attorney ' s fees, and

such other and further relief to which he may be entitled.

Respectfull~

Kenneth B. Chaiken
State Bar No. 04057800

CHAIKEN & CHAIKEN, P.C.
One Galleria Tower
13355 Noel Road, Suite 600
Dallas, Texas 75240
(214) 265-0250 telephone
(214) 265-1537 facsimile

ATTORNEY FOR INTERVENOR/
COUNTER-DEFENDANT
DOUGLAS M. IDCKOK

INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-DEFENDANTS' COUNTERCLAIM Page 3
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Intervenor/Counter-Defendant Douglas M.
Hickok's Second Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim has been
served upon all counsel of record by facsimile and certified mail on this J "8'rf/..v.Iay of April, 2011.

Kenneth B. Chaiken

VERIFICATION

STATE OF TEXAS §
§
COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, on this day personally appeared, Douglas M.
Hickok, being by me duly sworn on his oath, deposed and said that he has read paragraphs 1(c),
l(d), l(e), l(f) and 2(d) in the above and foregoing amended and supplemental answer, and every
statement contained therein is within his knowledge and is true and correct.

Douglas M. Hickok

Subscribed and sworn to before me this the 2~ day of _ ..._
A- -"-Fp"-'----i_,l,____ __ _
2011, to certify which witness my hand and seal of office.

Nok~ofTexas

INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. IDCKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-DEFENDANTS' COUNTERCLAIM Page4
TAB 11
 CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD. § IN THE COUNTY COURT
§
Plaintiff §
§
v. §
§
KEN GROSS and BETSY GROSS § ATLAWNUMBER 1
§
Defendants §
§
v. §
§
EVAN L. SHAW and DOUGLAS M. §
HICKOK §
§
Intervenors § DALLAS COUNTY, TEXAS

11:\-t,
IT IS SO ORDERED. (Wtti~
(Jf\ ~
Signed thi~ay of April, 2011. ~(Af>-
11"1~
~alt,
~f:taot-1
Upon Entry, Please Return to:
Law Offices of Van Shaw
2723 Fairmount
Dallas, Texas 75201
?ub?e;,,Vl'(/f-
214/754-7110 .Jofu rfhe1
b0eh"nq dut-
,0 jLt.~ylD
e~!tAaAt1 I
Order - Page I of I ljJQr(l~I~
-0 p11'1 ~ 1J7
TAB 12
 CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD. §
§
Plaintiff §
§
v. §
§
KEN GROSS and BETSY GROSS § AT LAW NUMBER 1
§
Defendants §
§
v. §
§
EV AN L. SHAW and DOUGLAS M. §
HICKOK §
§
Intervenors § DALLAS COUNTY, TEXAS

PLAINTIFF/COUNTER-DEFENDANT VSDH VAOUERO VENTURE, LTD.'S THIRD
SUPPLEMENTAL ANSWER AS AN ADDITION TO COUNTER-DEFENDANTS' FIRST
AND SECOND SUPPLEMENTAL ANSWERS AND COUNTER-DEFENDANTS' FIRST
AMENDED ANSWER TO DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

Come now Plaintiff/Counter-Defendant VSDH VAQUERO VENTURE, LTD. hereinafter
referred to as "Counter-Defendant" or "VSDH" and files this its Third Supplemental Answer as an
Addition to Counter-Defendants' First and Second Supplemental Answers and Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim, and would
respectfully show unto the Court the following:

I.

The pleadings and assertions set forth herein supplement and are in addition to Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and Counter-
Defendants' First and Second Supplemental Answers in Addition to Counter-Defendants' First
Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim. None of the contentions,
assertions nor defenses set forth in Counter-Defendants' First Amended Answer to
Defendants/Counter-Plaintiffs' Counterclaim and/or Counter-Defendants' First and Second
Supplemental Answers in Addition to Counter-Defendants' First Amended Answer to
THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page I
 '.
Defendants/Counter-Plaintiffs' Counterclaim are withdrawn. This is to be read in addition to and in
conjunction with Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs'
Counterclaim and Counter-Defendants' First and Second Supplemental Answers in Addition to
Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim.

II.

Based upon issues and facts raised by the Grosses in briefs filed within the past two weeks,
and upon certain summary judgment rulings made by the Court in that time period and as recently
as April 22°d, pleading further or alternatively as may be necessary, VSDH pleads as follows:

a. The Grosses' counterclaims to enforce the alleged guaranty made the basis
of this lawsuit against Shaw/Hickok are barred by the doctrine of
impossibility of performance;

b. The Grosses' counterclaims to enforce the alleged buy-back provision made
the basis of this lawsuit are barred by the doctrine of illusory contracts or
promises;

c. The Grosses' counterclaims to enforce the alleged guaranty made the basis
of this lawsuit against Shaw/Hickok are barred by a failure of or incomplete
execution of the alleged guaranty agreement by one of the alleged
guarantors;

d. The Grosses' counterclaims to enforce the alleged guaranty and the buy-
back obligation made the basis of this lawsuit are both barred by lack of
consideration and/or a failure of consideration;

e. To the extent the alleged guaranty obligation is found to be enforceable
against Shaw/Hickok, any recovery from Shaw/Hickok is limited to their
limited partner's contribution at the time the alleged guaranty was made; and

f. The Grosses' counterclaims for fraud or breaches of alleged off-contract
understandings are barred, in whole or in part, by the doctrine of merger.

III.
ALTERNATIVE PLEADING

All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.

THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 2
 WHEREFORE, PREMISES CONSIDERED, Counter-Defendant VSDH prays that
Counter-Plaintiffs take nothing by their suit against it, and that it be discharged with costs of court,
attorney's fees, and such other and further relief to which it may be entitled.

Respectfully submitted,

EVAN LANE (VAN) SHAW
Bar Card No. 18140500
LAW OFFICES OF VAN SHAW
2723 Fairmount Street
Dallas, Texas 75201
(214) 754-7110
FAX NO. (214) 754-7115

ATTORNEY FOR PLAINTIFF/
INTERVENOR/COUNTER-DEFENDANT

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing instrument was served upon the
attorneys of record of all parties to the above cause in accordance with Rules of Civil Procedure,
on this ,jifl\lay of April, 2011.

VAN SHA

THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 3
..

VERIFICATION

STATE OF TEXAS )
)
COUNTY OF DALLAS )

BEFORE ME, the undersigned Notary Public, on this day personally appeared EVAN L.
SHAW, who being by me duly sworn on his oath deposed and said that he is over 21 years of age,
of sound mind and capable of making this Affidavit; that he is an authorized agent of Counter-
Defendant VSDH VAQUERO VENTURE, LTD. in the above-entitled and numbered cause; that
he has read the above and foregoing Third Supplemental Answer as an Addition to Counter-
Defendants' First and Second Supplemental Answers and Counter-Defendants' First Amended
Answer to Defendants/Counter-Plaintiffs' Counterclaim; and that every statem~nt contained in
Paragraphs II (d) is within his personal knowledge and is true and correct. ,-/

EVANL.

SUBSCRIBED AND SWORN TO BEFORE ME on the ~'day of April, 2011, to
certify which witness my hand and official seal.

~;~-- LORI G. MOORE
..::."'\Notary Public. Slate oflexoa
\,;.\
lr
~·.............
*l My CommtssiOn Expires
May23.2012

THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 4
 LAW OFFICES
OF
VAN SHAW

ATTORNEYS AT LAW
VAN SHAW•
JANET R. RANDLE 2723 FAIRMOUNT
ERIC GREEN DALLAS, TEXAS 75201
(214) 754-7110
"MEMBER OF COLLEGE FAX NO. (214) 754-7115
OF THE STATE BAR OF TEXAS www.shawlawoffice.com
"CERTIFIED PUBLIC ACCOUNTANT

County Court at Law No. 1 April 29, 2011 ..,
·<
509 Main Street
~:l~~;!5cui~~i;~
2
VIA HAND DELIVERY
=PH (214/653-7556) = il1

RE: Cause No. CC-09-05232-A;
VSDH Vaquero Venture, Ltd v. Ken Gross and Betsy Gross
r j

Madam: I
Enclosed via hand delivery are the following:

1) Intervenor/Counter-Defendant SHAW's Third Supplemental Answer as an Addition to
Counter-Defendants' First and Second Supplemental Answers and Counter-Defendants'
First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim; and

2) Plaintif£'Counter-Defendant VSDH's Third Supplemental Answer as an Addition to
Counter-Defendants' First and Second Supplemental Answers and Counter-Defendants'
First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, true and correct copies of the above instruments were this date forwarded to
all counsel of rec d.

Van Shaw
VS/Im
Enclosures - hand delivery
cc: See attached Service List.
Mr. Doug Hickok, Via E-Mail (dhickok@marquisgroup.net)
Ms. Darcy Topolski, Via E-Mail (dtopolski@marquisgroup.net)
 SERVICE LIST

R. Brent Cooper FAX (214/712-9540)
Jana Starling Reist =PH (214/712-9500) =
COOPER & SCULLY brent.cooper@cooperscully.com
900 Jackson Street, Suite 100 jana.reist@cooperscully.com
Dallas, Texas 75202

Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

Kenneth B. Chaiken FAX (214/265-1537)
Chaiken & Chaiken, P.C. =PH (214/265-0250)=
One Galleria Tower kchaiken@chaikenlaw.com
13355 Noel Road, Suite 600
Dallas, Texas 75240

Attorney for Intervenor DOUG HICKOK

********************************

Van Shaw represents Plaintiff VSDH VAQUERO VENTURE, LTD, Intervenor, VAN
SHAW and Third-Party Defendants VSDH VAQUERO HOMES, INC. and VSDH
HOMES, INC.
TAB 13
 rllED
JOHii F. WARREN
COUNTY CLERK
DALLAS COUNTY, TEXAS
CAUSE NO. CC-09-05232-A
2013 APR IS PH I,: 22
VSDH VAQUERO VENTURE, LTD., § IN THE COUNTY COURT
Plaintiffs/Counter-Defendant, §
§
v. §
§
KEN GROSS and BETSY GROSS §
Defendants/Counter-Plaintiffs, § AT LAW NUMBER 1
§
v. §
§
EVAN L. SHAW and DOUGLAS M. §
HICKOK §
Intervenors/Counter-Defendants. § DALLAS COUNTY, TEXAS
§

KEN GROSS' AND BETSY GROSS' THIRD AMENDED COUNTER-CLAIM AGAINST
VSDH VAQUERO VENTURE, LTD., EVAN L. SHAW AND DOUGLAS M. HICKOK
AND SECOND AMENDED THIRD-PARTY PETITION AGAINST VSDH VAQUERO
HOMES, INC. AND VSDH HOMES, INC.

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Kenneth P. Gross and Betsy L. Gross, Defendants/Counter-

Plaintiffs/Third-Party Plaintiffs (collectively referred to as "the Grosses"), and hereby files their

Second Amended Petition Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and Douglas M.

Hickock (collectively referred to as "Counter-Defendants") and First Amended Third-Party

Petition Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. (collectively referred to as

"Third-Party Defendants"), and for such would respectfully show the Court as follows:

I.
DISCOVERY CONTROL PLAN

1. The parties have entered into an Agreed Level 3 Discovery Control Plan pursuant

to Tex. R. Civ. P. 190.4.

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 1
D/877087.1
 II.
PARTIES AND SERVICE

2. Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd. is a Texas Limited

Partnership who is represented by Evan L. Shaw in this action.

3. Defendant/Counter-Plaintiff/Third-Party Plaintiff Kenneth P. Gross 1s an

individual who has appeared in this action and is represented by the undersigned counsel.

4. Defendant/Counter-Plaintiff/Third-Party Plaintiff Betsy L. Gross is an individual

who has appeared in this action and is represented by the undersigned counsel.

5. Intervenor/Counter-Defendant Douglas M. Hickok ("Hickok") is a Texas resident

who has appeared in this action and is represented by Evan L. Shaw in this action.

6. Intervenor/Counter-Defendant Evan L. Shaw ("Shaw") is a Texas resident who

has appeared in and who is representing himself in this action. The Grosses recognize that

Shaw has been given a summary judgment in this case and are continuing to name him in this

pleading so as to avoid any confusion should there be an appeal that they wish to continue to

pursue their claims against him.

7. Third-Party Defendant VSDH Vaquero Homes, Inc. is a Texas General

Partnership whose principal place of business is at 5305 Village Creek, Plano, Texas 75093. It

may be served with process by serving its President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

8. Third-Party Defendant VSDH Homes, Inc. is a Texas General Partnership whose

principal place of business is at 5305 Village Creek, Plano, Texas 75093. It may be served with

process by serving its Registered Agent and President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 2
D/877087.I
 III.
JURISDICTION AND VENUE

9. The subject matter in controversy is within the jurisdiction limits of this Court.

The Court has jurisdiction over VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. because

they are Texas general partnerships.

10. Venue is proper with regard to this third-party action under section 15.062 of the

TEXAS CIVIL PRACTICE & REMEDIES CODE, as the transaction giving rise to this third-party action

arises out of the same transaction, occurrence, or series of actions or occurrences.

IV.
FACTS

11. On or about June 4, 2006, the Grosses entered into a New Home Contract

("Contract"), promulgated by the Texas Real Estate Commission, with Counter-Defendants and

Third-Party Defendants for the purchase of 2004 White Wing Cove, Westlake, Texas 76262

("the Property"), in the amount of $2,851,871.00. (A copy of the Contract has been attached

hereto as Exhibit"!," and is incorporate herein by reference for all pertinent purposes).

12. The Grosses purchased the Property at the full listed price of$2,851,871.00, even

though the Property had been listed for two years, due to the fact that Counter-Defendants agreed

to enter into a "Buy Back Option" with the Grosses.

13. According to paragraph 1 ("Buy Back Option") of Addendum A of the Contract,

VSDH Vaquero Venture, Ltd. granted to the Grosses, as Buyers of the Property, the "the option .

. . to put the Property to Seller [VSDH Vaquero Venture, Ltd.] (i.e. require Seller to repurchase

the Property for the original "Sales Price" of $2,851,871.00) on September I, 2009, or such

earlier date as may be mutually agreed between Buyer and Seller . . .. " See Addendum A to

Exhibit I.

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 3
D/877087.l
 14. Hickok and Shaw are limited partners of VSDH Vaquero Venture, Ltd. and

participated and controlled Counter-Defendants and Third-Party Defendants sell of the Property

to the Grosses and benefitted from the sell to the Grosses.

15. Further, according to paragraph 4 of Addendum A, Hickok and Shaw both agreed

to be personally responsible, jointly and severally, in the event VSDH Vaquero Venture, Ltd.

does not fully perform under the terms of the Buy Back Option. Neither Hickok nor Shaw

conditioned his personal guaranty on the other being liable as well. Neither Hickok, Shaw nor

anyone else ever informed the Grosses that their personal liability was conditioned on the other

guarantor's liability.

The "Buy Back Option" provides the following:

VSDH Vaquero Venture Ltd (VSDH), as Seller, hereby grants to Kenneth
P. and Betsy L. Gross (Gross), as Buyer, of 2004 White Wing Cove in
Vaquero subdivision, Westlake, Texas (the Property) the option (the "Buy
Back Option") to put the Property to Seller (i.e. require Seller to repurchase
the Property for the original "Sales Price" of$2,851,871.00) on September
I, 2009, or such earlier date as may be mutually agreed between Buyer and
Seller, in writing (the "Buy Back Date"), subject to the following terms and
conditions.

The Buy Back Option further provides requirements and deadlines on how the Grosses would

exercise the Option. The Grosses followed those requirements.

Further, according to paragraph 4 of Addendum A, Hickok personally guaranteed the

Buy Back Option. Paragraph 4 provides the following:

Doug Hickok and Van Shaw as partners in VSDH Vaquero Venture, Ltd.
each hereby personally guarantee [sic] Seller's obligations under the Buy
Back Option granted from VSDH to Buyer hereunder. In the event VSDH
fails to perform fully under the terms of the Buy Back Option, each of its
partners set forth herein [sic] above shall be personally responsible, jointly
and severally, to perform the obligations of VSDH under the Buy Back
Option.

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 4
D/877087.1
 The Contract further required the Grosses to construct improvements on the Property.

The Grosses constructed over $150,000 worth of improvements to the home.

The Grosses timely exercised the Buy Back Option, putting Hickok on notice of the

Grosses' intent to the sell the Property back to VSDH. Hickok has testified that VSDH has

"absolutely not" been insolvent since this transaction. In any event, VSDH, Shaw and Hickok

failed to buy the Property back and perform their contractual obligations as required under the

Contract.

Only after VSDH, Hickok and Shaw had affirmatively represented that they had no

intention of honoring the Buy Back Option, did the Grosses sell the Property in August 2009 for

$2,415,600 in an effort to mitigate their damages and avoid foreclosure of the home. VSDH and

Hickok's breach and fraud has cost the Grosses actual damages of over $550,000 for the

difference between the bargained-for "guaranteed" buy-back value and the amount of the actual

sale, realtor fees, closing costs, and fees associated with the sale of the Property.

16. Under the signature line of the Contract, VSDH Homes, Inc. is listed as the

general partner ofVSDH Vaquero Venture, Ltd. However, according to the Texas Secretary of

State's office, VSDH Vaquero Homes, Inc. is listed as VSDH Vaquero Venture, Ltd.'s general

partner.

17. In accordance with the terms of the Buy Back Option, the Grosses exercised the

Buy Back Option by delivering written notice to Shaw and Hickok before May 1, 2009 of the

Grosses' intent to sell the Property back to Counter-Defendants and Third-Party Defendants.

18. However, Shaw and Hickok communicated to the Grosses that Counter-

Defendants and Third-Party Defendants do not intend to buy the Property back and perform their

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 5
D/877087.I
contractual obligations as required under Addendum A to the Contract. Counter-Defendants and

Third-Party Defendants failed to purchase the property back.

19. The Grosses therefore seek construction of the Contract, including Addendum A,

to determine whether or not Counter-Defendants and Third-Party Defendants breached the

Contract by refusing and failing to buy the Property back from the Grosses pursuant to the

Contract for the original sales price of$2,851.871.00.

20. In an effort to mitigate their damages and avoid foreclosure of the home, the

Grosses sold their home for $2,415,600.

v.
DECLARATORY JUDGMENT

21. All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

22. This is an action for declaratory judgment pursuant to the Texas Declaratory

Judgment Act, Ch. 37.001 et. seq. of the TEX. C1v. PRAC. & REM. CODE, for the purpose of

determining an actionable and justiciable controversy between the parties, as hereinafter more

fully appears. The controversy involves Counter-Defendants' and Third-Party Defendants' duty

to perform their obligations arising under the "Buy Back Option," Addendum A, to the Contract.

23. Based upon the clear terms of Addendum A to the Contract (Exhibit 1), Counter-

Defendants and Third-Party Defendants were obligated to buy the Property back from the

Grosses pursuant to the terms of the Contract for the original sales price of $2,851.871.00.

The provision of the personal guaranty in the Contract addendum states the following:

Doug Hickok and Van Shaw as partners in VSDH Vaquero Venture,
Ltd. each hereby personally guaranty Seller's obligations under the Buy
Back Option granted from VSDH to Buyer hereunder. In the event
VSDH fails to fully perform under the terms of the Buy Back Option,
each of its partners set forth herein above shall be personally

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 6
D/877087 I
 responsible, jointly and severally, to perform the obligations of VSDH
under the Buy Back Option

"Jointly and severally" means that liability may be apportionable either among two or more

parties or to only one; together and in separation. BLACK'S LAW DICTIONARY (Second Pocket

Edition, 2001) (emphasis added). The fact that the guaranty provides the terms ')ointly and

severally" only further obligates Hickok's own personal liability, whether or not Shaw is liable.

The Texas Supreme Court has stated that "when the obligation of the sureties is joint and

several, the discharge of one of them does not release the others from payment of their proper

proportion of the claim." Glasscock v. Hamilton, 62 Tex. 143, 150 (1884). The Texas Supreme

Court has further offered the following analysis:

When a plaintiff alleges that two parties to a contract made him a promise,
although under the rule at common law as to joint and several contracts, that
is a joint promise, yet the allegation necessarily means that each of them
promised. Hence we see no good reason why, although he has alleged the
promise of the two, he should not recover against one upon proof that he
promised, although he may fail to prove the promise of the other.

McDonald v. Cabiness, 100 Tex. 615, 616, I 02 S.W. 721, 722 (1907). Thus, looking to the plain

language of the personal guaranty, Hickok is obligated to it whether or not Shaw is obligated.

Texas law requires that (I) the surety (Hickok) signed the guaranty on a condition that

another (Shaw) was to sign, and (2) the obligee (the Grosses) to the personal guaranty had

knowledge of such a condition. Hickok did not sign on the condition that Shaw would also sign

the guaranty. Hickok did not inform the Grosses of such a condition to his signing. Hickok has

denied even signing in his personal capacity, and cannot now argue that he signed personally in a

conditional capacity.

Hickok cannot claim that he signed it on a condition that Shaw was to sign it. Hickok

first raised this legal argument a few days before the first trial setting, but even then never

affirmatively claimed that he signed the personal guaranty on the condition that Shaw was to also
COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 7
D/877087.1
sign it. At Hickok's deposition, he testified that he is not liable because he never "signed on

behalf of [our] personal beings." He never made any such contention that Shaw's signature was

a required factor. Also, there is no language in the personal guaranty or the entire Contract that

states such a condition exists.

Further, the Grosses were never made aware that such a condition existed. The first time

the Grosses were even aware that Hickok was making such a contention was a few days before

the first trial setting in May of 2011. Hickok has no evidence that the Grosses were aware that

such a condition existed.

There is no language in this provision, or appearing anywhere else in the Contract,

requiring both Hickok and Shaw's signatures on the Contract or personal guaranty before either

can become personally liable. The plain language of the agreement states that the personal

guaranty may be enforced as to both or only one partner.

The language of the provision itself can only be reasonably interpreted to mean what it

says - that Hickok agreed personally to perform the Buy Back Option in the event VSDH failed

to perform. The description of "partner," does not limit Hickok's liability. To do so ignores the

clear language of the "personal" guaranty. Texas case law has firmly held that a designation in a

personal guaranty is only to point out the person intended and not to limit such individual's

liability.

The language of the guaranty provision in this case only states that Hickok is a "partner"

in VSDH, but does NOT state that his "personal" guarantee is limited to his capacity as a partner

(limited partner language is nowhere in guaranty). The words "guaranty" and "guarantor" have

distinct legal meanings, i.e., a guaranty is an undertaking by one person to answer for the

payment of a debt or performance of a contract or duty of another.

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 8
D/877087.l
 Hickok's status as a limited partner, which is not even stated in the personal guaranty

provision, does not mean he cannot personally obligate himself for the obligations of the limited

partnership. Texas law has found that a limited partner can personally obligate himself for

liabilities of his limited partnership. Further, even if the language on the guaranty did not

provide that Hickok made a personal guaranty (which it clearly did), Hickok's designation as

"partner" in the guaranty and his control over the transaction personally obligates him under

TEXAS BUSINESS ORGANIZATIONS CODE§ 153.102. Under Texas Business Organizations Code

§ 153.102(a), a limited partner can be liable for the obligations of a limited partnership if the

limited partner participates in the control of the business. "If the limited partner participates in

the control of the business, the limited partner is liable only to a person who transacts business

with the limited partnership reasonably believing, based on the limited partner's conduct, that the

limited partner is a general partner." Id. 153.102(b). Hickok was the individual who negotiated

the Contract and participated in the control of this agreement. Further, the term "partner" in the

personal guaranty and Hickok's conduct would lead the Grosses to reasonably believe he was in

fact a partners, i.e. general partners, of VSDH.

24. Accordingly, the Grosses seek a declaration from this Court, as follows:

I. VSDH Vaquero Venture, Ltd. was obligated to buy the Property back
from Kenneth P. Gross and Betsy L. Gross on or before September 1,
2009 for the original sales price of$2,85!,871.00

2. In the event VSDH Vaquero Venture, Ltd. failed to timely buy the
Property back from Kenneth P. Gross and Betsy L. Gross, Douglas M.
Hickok and Evan L. Shaw were personally responsible, jointly and
severally, to buy the Property back on or before September I, 2009 for the
original sales price of$2,851,871.00.

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 9
D/877087.1
 VI.
BREACH OF CONTRACT

25. All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section. The Grosses adopt herein the arguments made above.

26. The Grosses adopt herein the arguments made above. As stated above, the

Grosses entered into a valid and enforceable contract with Counter-Defendants and Third-Party

Defendants. See Exhibit I. The Grosses have fulfilled all requirements, statutorily and in

accordance with the terms of the Buy Back Option, by delivering written notice to Hickok and

Shaw before May I, 2009 of the Grosses' intent to sell the Property back to Counter-Defendants

and Third-Party Defendants. Counter-Defendants and Third-Party Defendants have materially

breached the Contract in that they have repudiated the contract and failed to proceed with the

purchase of the Property. Counter-Defendants' and Third-Party Defendants' breach has

proximately caused the Grosses' damages.

27. The Grosses request that a judgment be entered against Counter-Defendants and

Third-Party Defendants for actual damages. As a direct and proximate result of Counter-

Defendants' and Third-Party Defendants' failure to perform under the Contract, the Grosses have

been damaged in an amount in excess of the jurisdictional limits of the Court, for which they

seeks appropriate judicial relief.

VII.
FRAUD IN A REAL ESTATE TRANSACTION

28. All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section. The Grosses adopt herein the arguments made above.

29. The Grosses will show that Counter-Defendants' and Third-Party Defendants'

conduct constitutes fraud in a real estate transaction as defined by Section 27.01 of the TEXAS

BUSINESS & COMMERCE CODE. Counter-Defendants' and Third-Party Defendants' made a false
COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 10
D/877087.l
representation that they would buy the property back pursuant to the Buy Back Option in order to

induce the Grosses to enter into the Contract. The Grosses entered into the Contract and

purchased the Property at the full listed price of $2,851,871.00, even though the Property had

been listed for two years, due to the fact that Counter-Defendants and Third-Party Defendants

made the false representation that they would buy the property back pursuant to the "Buy Back

Option." The Grosses' reliance directly and proximately caused them substantial injury, as set

out above, for which they seek appropriate judicial relief.

A. Attorneys' Fees

30. The Grosses have retained the law firm of Cooper & Scully, P .C. to represent

them in this action and have agreed to pay the firm reasonable and necessary attorneys' fees.

31. The Grosses are entitled to recover reasonable and necessary attorney fees that are

equitable and just under TEXAS CIVIL PRACTICE & REMEDIES CODE § 38.001 because it is a suit

for breach of a written contract, and under TEXAS BUSINESS & COMMERCE CODE §27.0l(e)

because this is an suit for statutory fraud. All conditions precedent to the collection of attorneys'

fees have been satisfied.

B. Conditions Precedent

32. All conditions precedent to the Grosses claims for relief have been performed or

have occurred.

WHEREFORE, PREMISES CONSIDERED, Defendants Kenneth P. Gross and Betsy

L. Gross pray that their counterclaims against VSDH Vaquero Venture, Ltd., Shaw and Hickok,

joint and several, and third third-party claims against VSDH Vaquero Homes, Inc. and VSDH

Homes, Inc. be granted; that upon final hearing of this matter, a declaratory judgment is entered

as enumerated above; that the Grosses have and recover damages in an amount within the

jurisdictional limits of this Court; pre- and post-judgment interest at the highest lawful rate;
COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 11
D/877087.1
attorneys' fees and court costs; exemplary damages; and such other and further relief, whether

special or general, to which the Grosses may show themselves justly entitled.

Respectfully submitted,

COOPER & SCULLY, P.C.

By:- =~ B"'-RE"-"N" '/'- "'cr;j" "o'- -~p_,_¥l_, _.RL4.1£.
,_ __

-==o.04783250
GORDON K. WRIGHT
State Bar No. 22029600
JANA STARLING REIST
State Bar No. 24056890

Founders Square
900 Jackson Street, Suite I 00
Dallas, Texas 75202
Telephone: (214) 712-9500
Facsimile: (214) 712-9540

ATTORNEYS FOR DEFENDANTS
KEN GROSS AND BETSY GROSS

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing document was
forwarded to all counsel of record herein as specified below, on this the 15th day of April 2013,
as follows:

Evan Lane (Van) Shaw (via CMRRR andfacsimile)
Law Offices of Van Shaw
2723 Fairmount Street
Dallas, Texas 75201
Attorney for VSDH and Evan L. Shaw

Kenneth B. Chaiken (via CMRRR and facsimile)
Chaiken & Chaiken, P.C.
One Galleria Tower
13355 Noel Road, Suite 600
Dallas, Texas 75240
Attorney for Douglas M Hickok

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION Page 12
D/877087.l
 FILED
JOHN F. WARREN
COUIHY CLERK
O:>oper Scully
A 1'1nfc.,.•10!l<1! (:01'J1om£•/'~----
~ ~ShaW
TO THE HONORABLE ruDGE OF SAID COURT:

Comes now Plaintiff, VSDH VAQUERO VENTURE, LTD, and files this its Motion for
Continuance and in support thereof would respectfully show the Court as follows:

I.
This matter is currently set for trial on December 9, 2013.

On or about November 26, 2013, Plaintiff received Defendants/Counter-Plaintiffe Ken
Gross and Betsy Gross' Witness List, a true and correct copy of which is attached hereto as
Exhibit A. The same identifies VAN SHAW as a "person who may be called as an adverse
witness."

On December 2, 2013, Mr. Shaw wrote attorney Steve Aldous requesting that Mr. Aldous
inform Mr. Shaw whether or not Mr. Aldous would be calling Mr. Shaw, and informing Mr.

Plaintiffs Motion for Continuance - Page 1 of 5
MORP Pltf Mot4 Cont
Aldous that if Mr. Shaw is called to testify, then Mr. Shaw will have to find different counsel. A
true and correct copy of said letter is attached hereto as Exhibit B.

Having not heard from Mr. Aldous as to whether or not Mr. Aldous would be calling Mr.
Shaw to testify at trial, on December 5, 2013, Mr. Shaw wrote Mr. Aldous again asking if Mr.
Aldous would be calling Mr. Shaw as a witness, and advising Mr. Aldous that if Mr. Shaw is
called as a witness, then Mr. Shaw would need to find different counsel. A true and correct copy
of said letter is attached hereto as Exhibit C.

Further, on December 5, 2013, Mr. Shaw had a conversation with Defendants' counsel,
Mr. Aldous, during which Mr. Aldous represented to Mr. Shaw that Mr. Aldous could not
confirm whether or not Defendants would be calling Mr. Shaw as a fact witness.

II.

Mr. Shaw will be prohibited from serving as trial counsel for Plaintiff if Defendants call
Mr. Shaw as a fact witness at trial pursuant to Rule 3 .08 of the Texas Disciplinary Rules of
Professional Conduct, which states as follows:

(a) A lawyer shall not accept or continue employment as an advocate
before a tribunal in a contemplated or pending adjudicatory proceeding
if the lawyer knows or believes that the lawyer is or may be a witness
necessary to establish an essential fact on behalf of the lawyer's client,
unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of fommlity and
there is no reason to believe that substantial evidence will be offered in
opposition to the testimony;

(3) the testimony relates to the nature and value of legal services
rendered in the case;

(4) the lawyer is a party to the action and is appearing pro se; or

(5) the lawyer has promptly notified opposing cotmsel that the
lawyer expects to testify in the matter and disqualification of the
lawyer would work substantial hardship on the client.

(b) A lawyer shall not continue as an advocate in a pending
adjudicatory proceeding if the lawyer believes that the lawyer will be
compelled to furnish testimony that will be substantially adverse to the
lawyer's client, unless the client consents after full disclosure.

Plaintiff's Motion for Continuance - Page 2 of 5
MORP Pltf Mot4 Cont
 (c) Without the client's informed consent, a lawyer may not act as
advocate in an adjudicatory proceeding in which another lawyer in the
lawyer's firm is prohibited by paragraphs (a) or (b) from serving as
advocate. If the lawyer to be called as a witness could not also serve as
an advocate under this Rule, that lawyer shall not take an active role
before the tribunal in the presentation of the matter.

IV.
Because Defendants are unable to definitively advise as to whether Defendants intend to call
Mr. Shaw as a fact witness at trial, and because Plaintiff will be forced to seek other counsel
pursuant to Rule 3.08 if Mr. Shaw is called as a fact witness, Plaintiff requests a continuance of trial
in this matter until such time as it can be determined whether or not Defendants will be calling Mr.
Shaw as a fact witness.

Additionally, in the event that Defendants decide they will be calling Mr. Shaw as a fact
witness, Plaintiff will require a reasonable amount of time to locate and engage new counsel, and
said counsel will require a reasonable amount of time to familiarize himself with the case and
prepare for trial.

Requiring Plaintiff to go to trial on December 9, 2013, would be extremely prejudicial to
Plaintiff as it would effectively allow Defendant to call Mr. Shaw as a witness and have Mr. Shaw
disqualified as Plaintiff's counsel in the middle of trial. This would not only operate as a deprivation
to the Plaintiff of Plaintiff's right to its attorney of choice, it would also leave Plaintiff
unrepresented in the middle of trial.

v.
This continuance is not sought for delay only, but so that justice may be done.

WHEREFORE PREMISES CONSIDERED, Plaintiff respectfully requests that trial in this
matter be continued until such time as Defendants advise as to whether or not Defendants are going
to call Van Shaw as a fact witness, and, if Defendants do intend to call Mr. Shaw as a fact witness,
until such time as Plaintiff is able to locate and engage new counsel, and said counsel is able to
familiarize himself with the case and prepare for trial, and for such other and further relief, at law or
in equity, to which Plaintiff may be justly entitled.

Plaintiff's Motion for Continuance - Page 3 of 5
MORP PltfMot4 Cont
 Respectfully f b · ed,

EVANL E AN)SHAW
BarCardNo.18140500
COLLEN R. MEYER
Bar Card No. 24074709
LAW OFFICES OF VAN SHAW
2723 Fairmount
Dallas, Texas 75201
Telephone: (214) 754-7110
Facsimile: (214) 754-7115
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing instrument was served upon the

,. lhi, •: """.rn-"". 2013. I
attorneys °/:cord of all parties to the above cause in accordance with··· the Rules of Civil Procedure,

VANSHAJ;

Plaintiffs Motion for Continuance- Page 4 ofS
MORP PltfMot4 Cont
 VERIFICATION

STATEOF1EXAS §
§ //
COUNTY OF DALLAS § //

EVAN LANE SHAW, being duly sworn, states that he is the atto~~f
record for Plaintiff
in the above entitled case and that he has read the foregoing Motion fo ~~ti~uance and that each
statement of fact contained therein is true and correct to the best 1hi owledge.

EVAN LANE (VAN) SHAW

SUBSCRIBED AND SWORN TO BEFORE ME, on this the l..Jfh. day of December,
2013.

,
. .•. ..
·~·""1i;r:.,
l~ '-?$~ LETICIA BEAIBIZ BOTELLO J
%;~..... ~~ MY COMMISSION EXPIRES
September 20, 2014 Notary Public in and for th
'•r,,,?,~,i.':''
. State of Texas

My Commission Expires: S Texas 75202
(214) 712-9500
The Grosses' counsel

DEFENDANTS/COUNTER-PLAlNTIFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST Page Z

zs:s1 E10~/9~/tt ·
12/05/2013 12:05 2147547115 LAW OFFICE OF V SHAW PAGE 10/15

Steven E. Aldous
Braden, Varn.er & Aldous, P.C.
703 McKinney Avenue, Suite 400
Dallas) Texas 75202
(214) 740~0212
(214) 740~0217 fa."<.
The Grosses~ counsel

II.
PER$0NS WHO MAY BE GALLED AS AN ADVERSE WITNESS
Van Shaw, individually and as a representative of
VSDH Vaquero Venture; Ltd.
2723 Fairmount Street
Dall.as~ Texas 75201

Doug Hickok, individually and as a representative of
VSDH Vaquero Venture~ Ltd.
c/o his attorney of record~
Kenneth B. Chaiken
Chaiken & Chaiken) P.C.
13355 Noel Road, Ste. 600
Dallas, Texas 75240

III.
OTHER WITNESSES
In addition, the Grosses reserve the right to supplement this list pursuant to the Texas

Rules of CiVil Procedure and incorporates by reference any and all individuals and/or entities

listed by the other parties in their respective Responses to Requests for Disclosures. Further? the

Grosses hereby incorporate by reference any additional persons who are identified in documents

produced in the current lawsuit..

DEFENDANTS/COUNTER-PLAlN1'lFFS' KEN GROSS AND EETSY GROSS; WITNESS LIST Pag~ 3

90/170 39V'd
 12/05/2013 12:05 2147547115 LAW OFFICE OF V SHAW PAGE 11/15

Respectfully submitted.

TEVEN E. ALDOUS
State Bar No. 00982100
saldous@bvals.w.co:m
BRADEN, VARl'lER & ALDOUS, .P.C.
703 McKinney Avenue, Suite 400
Dallas, Texas 75202
(214) 740~0212
(214) 740-0217 fax

Attorney for.Defendants/Counter Plaintiffs

CERTitJJ.:ATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was
served upon the following attomeys of record in accordance with Rule 21a of the Texas Rules of
Civil Procedure on the 26th day of November, 2013.

Kenneth "B. Chaiken Evan Lane (Van) Shaw
Chai.ken & CHaiken, P. C. Law Offices of Van Shaw
Legacy Town Center III 2723 Fainnont Street
5801 Tennyson Pkwy.~ Suite 440 Dallas, Texas 75201
Plano, Texas 75024

DEFENDANTS/COUNT£R-PLAINTIFFS' KEN GROSS AND BETS\' GROSS' WITNESS LIST .Page 4

90/90 39'i1d
12/05/2013 12:05 2147547J 15 LAW OFFICE OF V. c;HAW PAGE 12/15

LAW OFFICES
OF
VAN SHAW
ATTORNEYS AT LAW

2723 FAIRMOUNT
VAN SHAW" DALLAS, TEXAS 75201 OANIEl K. HAGOOD
JANET R. Rl\NDl.F. (214) 754·7110 OF COUNSeL
FAX NO. (214) 754-7115
• SOAF~O CERTIFIED IN Ct::RTIFlED Pl\RAl.F.GALS
PE:RSONAL INJUF!Y
www.shawlawoffice.com RHONDA VINCENT
• CSRTIFIED PUBLIC LORI G. MOORE
ACCOUNTANT APRILS. SUMNER

Mr. Steve Aldous December2, 2013
ATTORNEY AT LAW FAX (214*740-0217)
703 McKinney A venue, Suite 400 =PH 214*740-0212 =
Dallas; Texas 75202

Re: VSDH V. Gross

Dear Mr. Aldous:

I received your List of Witnesses and Notice that I am 11sted as a possible witness by you.
IfI am to be called I cannot then be counsel for VSDH and will need time to find other
counsel

Please let mefi~w if you will /will not be cal li:og me so that I can make plans
acctrd1ng1(
ThanI ,
I

Van Shaw
VS/rv

Cc: Ken Chaiken email
12/05/2013 12:05 2147547115 LAW OFFICE OF V SHAW PAGE 13/15

TRANSMISSION 'vERIFICATIOi'l REPORi

TIME 12/02/2013 07:27
NAME LAW OFFICE OF V SHAW
FAX 2147547115
TEL : 2147547110
SER. ff ; BROA0J127259

DATE, TIME 12/02 07:27
FAX i'IO. /NAME 2147400/.17
DURATION 00:06:16
PAGE(S) 01
RESULT rn<
MODE STANDARD
ECM

LAW OFFICES
OF
VAN SHAW
ATTORNEYS AT JJ\W
2723 FAIRMOUNT
VAN SHAW"
JANF.T Fl. RANDLE DALLAS, TE;XAS 75201
{214) 754·7110 CAN/EL K H.J\0000
FAX NO. (214) 754-711;; (\fOCOONS!;l
• J;10ARD 09!<'1"(~/EI:.\ IN
P.ERSONAL INJLtRY WMl/.Shawlawoffice ..com C/;l~Ttl'"fEO PARALEGALS:
'Cl;RTIFISO PU!'!uc ~ONOA VTNCENT
ACCO UM"llNi ~osr G. MOORE'
A"l'\IL S, S~IMN!;R

Mr. Steve Aldous
ATTORNEY AT LAW December 2, 2013
703 McKinney Avenue, Suite 400 FAX (214*740~0217)
Dallas) Texas 75202 =PH 214*740~0212,,,.

R.e: VSDH V. Gross

Dem· Mr. Aldous:

r received your List of Witnesses and Notice that l am listed as a possible witness by you.
IfI am to be called r cannot tben be counsel for VSDH and will need time to find other.
counsel

Please let me kfow if You '11,rill I will not be calling me so that I can make pJans
accordingj>7

Th~/
;·
Van Shaw
12/06/2013 12:05 2147547115 LAW OFFICE OF V SHAW PAGE 14/16

LAW OFFICES
OF
VAN SHAW

AITORNEYS AT LAW
2723 FAIRMOUNT
Vl'INSHAW' DALLAS, TEXAS 75201 DANIEL K HAGOOD
JANET R RANDLE (214) 754"7110 OF COUNSEL
FAX NO. (214) 754-7115
• BOii.RO C5RTIFIF.D IN CERTIFIEO PARALEGALS
PERSONAL INJURY
www.shawlawoffice.com RHONDA VINCF.NT
• Cl:f IN www,shawls~ffiee.com Rl-IONCl~ VIHCENt
PERSONA!. !N./Ul'c'f
~Ol'\I G, MOORE
• CSRTIFIED PUl!!LJO
ACCOUNTMIT
APRll S. SUMN"R

Mr. Steve Aldous December 5~ 2013
ATTO&"'iEY AT LAW FAX (214"'740-0217)
703 McKinney Avenue, Suite 400 =PH 214!+.740-0212 ;:=

Dallas, Texas 75202 saldous@bvalaw.com

Re; VSDH v. Gross

Dear Mr. Aldous:

I called you to discuss a moment ago and left a message as you were unavailable, I .have
not heard from you in reply to my fax as to whether of not you will I will not be calling
me as a witness at.:trlal. I need to know asap as if you Vvill call me, I cannot be counsel if
I am to be a \Vitt;ess.
,.
I
I
Please advisefasap.
/
Thanks./
_[
 12/05/2013 12:05 2147547.115 LAW OFFICE OF \/ c;HAW PAGE 15/15
12/6111 ProOoc® eFlllng 2· Filing Acl ' -

Friday, December 06, 2.013 \ 11:41:30 AM
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ht1ps:JAw.w.prcdocefile.com'20/SubAc~CllMedgementaspx 1/1
TAB 18
 FILED
6/2/2014 1:41:35 PM
JOHN F. WARREN
COUNTY CLERK
DALLAS COUNTY

CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD., § IN THE COUNTY COURT
§
Plaintiff/Counter-Defendant §
§
§
v. §
§
KEN GROSS AND BETSY GROSS, § AT LAW NUMBER 1
§
Defendants/Counter-Plaintiffs §
§
v. §
§
DOUGLAS M. HICKOK, §
§
Intervenor/Counter-Defendant. § DALLAS COUNTY, TEXAS

NOTICE OF HEARING

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

A hearing on Ken Gross and Betsy Gross’ Motion to Disqualify Evan L. Shaw will be held

on Wednesday, June 18, 2014, at 8:30 a.m., in the County Court at Law No. 1, Dallas County,

Texas.

Respectfully submitted,

/s/ Steven E. Aldous
Steven E. Aldous
State Bar No. 00982100
FORSHEY PROSTOK, LLP
500 Crescent Court, Suite 240
Dallas, TX 75201
(214) 716.2100
(214) 716.2115
saldous@forsheyprostok.com

Attorney for Defendants/Counter-Plaintiffs
Ken Gross and Betsy Gross

Notice of Hearing: Page 1 of 2
 CERTIFICATE OF SERVICE

I hereby certify that on June 2, 2014, a true and correct copy of the foregoing document
was served, via email, through the Electronic Filing Manager in accordance with the Texas Rules
of Civil Procedure, to all counsel of record.

/s/ Steven E. Aldous

Notice of Hearing: Page 2 of 2
TAB 19
 1

1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 CAUSE NO. CC-09-05232-A

3 VSDH VAQUERO VENTURE, LTD.,) IN THE COUNTY COURT
Plaintiff/ )
4 Counter-Defendant, )
)
5 V. )
)
6 KEN GROSS and BETSY GROSS, )
Defendants/ ) AT LAW NO. 1
7 Counter-Plaintiffs )
)
8 V. )
)
9 EVAN L. SHAW and DOUGLAS M.)
HICKOK, )
10 Intervenors/ )
Counter-Defendants. ) DALLAS COUNTY, TEXAS
11

12
-------------------------------------------------------
13
KEN GROSS AND BETSY GROSS' MOTION
14 TO DISQUALIFY EVAN L. SHAW
-------------------------------------------------------
15

16

17 On the 18th day of June, 2014, the following
18 proceedings came on to be heard
outside the presence of
19 a jury in the above-entitled and -numbered cause before
20 the Honorable D'METRIA BENSON
, judge presiding, held in
21 Dallas, Dallas County, Texas.
22 Proceedings reported by computerized stenotype
23 machine. Reporter's Record produced by computer-aided
24 transcription.

25

APX 18
 2

1 APPEARANCES:
2 MS. JANET R. RANDLE
SBN 00792216
3 Law Offices of Van Shaw
2723 Fairmount
4 Dallas, Texas 75201
(214)754-7110
5 ATTORNEY FOR PLAINTIFF
/COUNTER-DEFENDANT
VSDH VAQUERO VENTURE,LTD.
6
- AND -
7
MR. KENNETH B. CHAIKEN
8 SBN 04057800
Chaiken & Chaiken, P.C.
9 Legacy Town Center III
5801 Tennyson Parkway
10 Suite 440
Plano, Texas 75024
11 (214)265-0250
ATTORNEY FOR COUNTER-DEFENDANT
12 DOUGLAS M. HICKOK

13 - AND -

14 MR. STEVEN E. ALDOUS
SBN 00982100
15 Forshey & Prostok, LLP
500 Crescent Court
16 Suite 240
Dallas, Texas 75201
17 (214)716-2101
ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
18 KEN GROSS AND BETSY GROSS

19

20

21

22

23

24

25

APX 19
 3

1 INDEX

2 JUNE 18, 2014 PAGE VOL.
3 PROCEEDINGS.............................. 4 1

4 COURT'S RULING .......................... 15 1

5 ORAL MOTION FOR CONTINUANCE............. 16 1

6 COURT'S RULING........................... 17 1

7 END OF PROCEEDINGS....................... 21 1

8 REPORTER'S CERTIFICATE................... 22 1

9

10 EXHIBIT INDEX (NONE)
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

APX 20
 4

1 PROCEEDINGS
2 June 18, 2014
3 THE COURT: This is Cause No. 09-05232-A,
4 VSDH Vaquero Venture, LTD versus Ken Gross and Betsy
5 Gross. Please make your announcements for the record
.
6 MR. ALDOUS: Steve Aldous for the Grosses.
7 MS. RANDLE: Janet Randle appearing for
8 Van Shaw, the attorney being -- attempting to be
9 disqualified, and also counsel for VSDH.
10 MR. CHAIKEN: Kenneth Chaiken for Douglas
11 Hickok.
12 THE COURT: Okay. You may proceed,
13 Mr. Aldous.
14 MR. ALDOUS: Your Honor, if you recall, we
15 were set for trial in December on this very case, and
16 Mr. Shaw showed up, asked for a continuance at that time
17 saying that he may and likely would be a witness in the
18 case and that he was seeking a continuance on that
19 basis. And if you recall, he had Mr. Hagood come to
20 pick the jury in the event we were to proceed to the
21 jury. We didn't proceed to the jury. I then sent an
22 email to Mr. Shaw asking him if he will agree to
23 withdraw based upon his statements to the Court. He
24 said, "no." So I filed this motion.
25 The motion basically says if you -- if the

APX 21
 5

1 lawyer is going to be a witness, the new rule says you
2 can't act as an advocate before the Court. That means
3 anything. And as a result, Your Honor, we're moving to
4 dismiss him as a result of him being a witness.
5 THE COURT: Ms. Randle?
6 MS. RANDLE: Well, yes, Your Honor. First
7 of all, let's talk about the delay. Our argument is in
8 terms of the setting of this motion, this motion is six
9 months after counsel has known about the issue. The
10 issue was first raised in December. And at that time,
11 it wasn't Mr. Shaw saying he was going to testify; it
12 was Mr. Shaw contacting counsel
because Mr. Shaw
13 appeared on counsel's witness list -- or defendants'
14 witness list.
15 Mr. Shaw -- and it's in the record.
16 Counsel has attached it to different correspond --
17 letters from Mr. Shaw saying, "Tell me what it is. Are
18 you going to call me or aren't you going to call me?"
19 And Mr. Shaw -- the evidence before the Court in those
20 letters is that counsel refused to give Mr. Shaw an
21 answer. So Mr. Shaw did not withdraw. It wasn't
22 Mr. Shaw's testimony that he was going to testify on
23 behalf of himself. And I can't recall if at that time,
24 Your Honor, Mr. Shaw was still a defendant. And I
25 really don't recall when the summary judgment was

APX 22
 6

1 granted.
2 MR. ALDOUS: He was not a defendant at the
3 time.
4 MS. RANDLE: Okay. Well, I appreciate
5 counsel, and I'll assume counsel's correct.
6 MR. CHAIKEN: That is correct
.
7 MS. RANDLE: So anyway, Your Honor, we
8 have counsel coming before the Court today, less than
9 three weeks before trial -- again, the trial is set in
10 July -- when counsel filed this motion back in February
11 and here we are in June hearing a motion that should
12 have been heard sooner if there was an issue. It should
13 have been filed in December when counsel just told you
14 that he was advised Mr. Shaw was not going to withdraw
15 voluntarily on his own.
16 THE COURT: Well, it was filed in
17 February, correct?
18 MS. RANDLE: Correct, Your Honor. It's
19 now June.
20 THE COURT: It's not like it was filed
21 yesterday.
22 MS. RANDLE: Well, I understand that.
23 But, you know, February to June, it's almost been four
24 months.
25 MR. ALDOUS: I think the delay here is not

APX 23
 7

1 my delay but Mr. Shaw's delay. And I know that counsel
2 wasn't here when Mr. Shaw told the Court and what he
3 told the Court and Mr. Chaiken's statement that he would
4 be calling Mr. Shaw as a witness as well. And even to
5 this day, I cannot confirm that I will call Mr. Shaw,
6 but I can say that it's more than a 50 percent chance.
7 So, you know, I just don't want him -- I don't care what
8 he does.
9 Counsel, you can say whatever. I mean, I
10 don't care if he's a lawyer or not for the case. The
11 question is the rule. The rule says that he's not
12 supposed to do it. If he wants to do it, fine. I just
13 don't want him using it as an excuse for a continuance
14 like he did back in December.
15 MR. CHAIKEN: Can I make one comment?
16 THE COURT: You may, Mr. Chaiken.
17 MR. CHAIKEN: Thank you. Because I was
18 here. First of all, I'm a little surprised that we are
19 here at this juncture because I -- and maybe it's just
20 my own mind at work. I thought, given that the motion
21 was filed in February and then there was no attempt to
22 set it until recently, that the issue was basically a
23 dead issue. But I guess I was mistaken on that. So I'm
24 a little troubled by the timing of it all. But,
25 nevertheless, I just want to be clear on the record. I

APX 24
 8

1 have never said that I am going to call Mr. Shaw as a
2 witness. I said that I may need to call Mr. Shaw as a
3 witness. And if I do call Mr. Shaw as a witness, it
4 will be simply to rebut testimony that has been offered
5 by Mr. Gross or his -- testimony given by Mr. Gross
6 regarding certain interactions that he has had with
7 Mr. Shaw.
8 THE COURT: So those would be factual
9 issues.
10 MR. CHAIKEN: They would be factual issues
11 because he was a fact witness toalleged conversations
12 that occurred outside the scope of litigation and
prior
13 to litigation. But, again, I don't know how the trial's
14 going to shape up in terms of what the Court's going to
15 let into evidence and not let into evidence.
16 And the other thing that I wanted to
17 mention is -- because that issue, that last issue, to me
18 is probably the most criticalone. There have been
19 recently filed cross-motions for summary judgment,
20 which, from my point of view and I think from
21 Mr. Aldous' point of view from our conversations, would,
22 depending on the Court's rulings on those, significantly
23 not only narrow the scope of the trial depending on the
24 rulings, but at least shape those issues for trial
25 purposes, which will have a bearing on whether or not,

APX 25
 9

1 if there is a trial left, Mr. Shaw would be a witness or
2 not be a witness.
3 And so we, unfortunately, filed these
4 motions about the same time and haven't been able to
5 obtain a setting on those motions. And so my only issue
6 would be that -- that if there's a way that we can get
7 the summary judgments heard and ruled on before the
8 current trial date, which I know is a difficult
9 proposition because I understand that Your Honor is
10 going to be gone the week before the July 4th -- or
11 unavailable, I don't know about gone, the week before
12 the July 4th weekend or week.
13 THE COURT: No. I'm planning to be here
14 that week.
15 MR. CHAIKEN: I had been informed when I
16 attempted to get a settingthat you had no availability.
17 Maybe -- is there a judicial conference or something
18 going on or --
19 THE COURT: No. Maybe we just have a full
20 docket.
21 MR. CHAIKEN: Maybe it's a full docket,
22 but I had understood that you were unavailable for a
23 reason other than a busy schedule, but I could be
24 mistaken.
25 MS. RANDLE: Your Honor --

APX 26
 10

1 THE COURT: The week of the 4th --
2 MS. RANDLE: -- I would also like to
3 continue.
4 THE COURT: Just a second. The week of
5 the 4th of July?
6 MR. CHAIKEN: The week of the 4th, yeah.
7 THE COURT: No. That's a different issue.
8 MR. CHAIKEN: Okay.
9 THE COURT: There's a conference during
10 that week.
11 MR. CHAIKEN: Okay. That might have been
12 where I got confused in terms of what the lack of
13 availability was about, but I don't know. If there's a
14 way to possibly postpone the start date of the trial and
15 hear the summary judgment and then defer the ruling
16 based upon the outcome, I think it may help shape the
17 question. I don't know. Steve and I talked about --
18 excuse me. Mr. Aldous and I talked about bringing that
19 to your attention and seeing if there's a way that we
20 might be able to address that question.
21 THE COURT: Have you been to mediation
22 since Mr. Aldous has been on the case?
23 MR. ALDOUS: We have, Your Honor.
24 MR. CHAIKEN: Since you got involved
?
25 MR. ALDOUS: Yes.

APX 27
 11

1 MR. CHAIKEN: Who did --
2 MR. ALDOUS: Judge Stanton.
3 MR. CHAIKEN: Oh, that's right. Yeah, we
4 sure did.
5 THE COURT: And he was unable to resolve
6 this with you?
7 MR. ALDOUS: He was.
8 THE COURT: Ms. Randle?
9 MS. RANDLE: Yes, Your Honor. I'd like to
10 finish my arguments. I started with this idea that
11 there is essentially a waiver. And the case I'd like to
12 cite to the Court on that is a case -- it's BP AM
13 Production Company versus Zaffirini 419 S.W.3d 485. And
14 that is a San Antonio 2013 case. And in that case, the
15 time period's a little longer. It was an affidavit of
16 the attorney that was filed, and the opposing counsel
17 waited seven months before the opposing counsel set it
18 for hearing. And it happened to be three days before a
19 summary judgment, and the Court said you essentially --
20 it's too late. You've waived it.
21 Now that's not my only argument. Counsel
22 indicated that the rule is any time an attorney is going
23 to testify, and I disagree. That isn't the rule. The
24 rule that's been moved on is the Rule of Professional
25 Conduct 3.08. And that rule requires defendant to come

APX 28
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1 into this court with evidence that Mr. Shaw in his
2 testimony that is alleged to have been -- whatever it is
3 he's going to testify to has to be an essential fact to
4 the case, and it has to be something that the -- that
5 cannot be obtained by anyone else.
6 There is no evidence before this Court to
7 that affect. Counsel has not met the burden of coming
8 forward and establishing that information. The rule is
9 not that an attorney cannot testify. There is also an
10 exception that an attorney can testify if they're a
11 defendant. Now Mr. Shaw was a defendant, and now -- but
12 Mr. Shaw is also an owner of VSDH.
13 THE COURT: Which is a corporate entity,
14 correct?
15 MS. RANDLE: It's a corporate entity
, but
16 I'm just saying --
17 MR. CHAIKEN: I believe it's a limited
18 partnership just for clarity.
19 MS. RANDLE: But there is -- I don't have
20 a case that says that. But my argument is that there is
21 a situation with respect to a self-interest. If you're
22 going to say that you can't testify or you can testify
23 if you are strictly a defendant, the question becomes:
24 What is the purpose of that rule?
25 So my position today is, Your Honor, that

APX 29
 13

1 the motion before the Court does not present this Court
2 with any evidence of what Mr. Shaw's testimony is that
3 counsel suggests triggers under Rule 3.08 a
4 responsibility for this Court to disqualify him.
5 THE COURT: Where in the rule do you find
6 a requirement that they have to present evidence ofthat
7 testimony?
8 MS. RANDLE: Well, Your Honor, they're the
9 moving party. There are exceptions.
10 THE COURT: I'm looking at the rule. I
11 don't see anything that says that they have to present
12 testimony about what the --
13 MS. RANDLE: Well, Your Honor, all --
14 THE COURT: -- what the lawyer would --we
15 can't talk at the same time.
16 MS. RANDLE: I'm sorry.
17 THE COURT: -- what the lawyer would
18 testify to. I did ask whether or not he would be
19 testifying as to fact issues, which I think is
20 important.
21 MS. RANDLE: Fact issues, but, Your Honor,
22 it's not just fact issues. The rule requires them to be
23 essential fact issues that only Shaw can testify to. If
24 there's a source that you can get that fact issue from
25 someone else -- you know, there's no evidence that Shaw

APX 30
 14

1 is going to testify to that. That's the problem here.
2 Counsel has not indicated he's going to call Shaw. No
3 one has come before this Court to say, "Mr. Shaw is
4 going to testify to fact A. Mr. Shaw is the only person
5 who can testify to that fact. It's essential to the
6 case; therefore, Mr. Shaw needs to be disqualified."
7 There are -- the majority of cases that
8 are cited that are -- that are the note cases are cases
9 overruling the trial Court's denial or granting of the
10 motion based upon those very issues of evidence not
11 provided by the moving party seeking disqualification
.
12 And that is something that counsel has not provided to
13 this Court at all, and counsel first knew about this
14 issue in December. It's now six months later, and you
15 still -- this Court has no idea what is the testimony
16 that is going to be at issue. No one has presented that
17 to the Court.
18 THE COURT: Mr. Chaiken just said that he
19 would be asking Mr. Shaw questions with regard to the
20 testimony of Mr. Gross. And if he does that, then I
21 assume that Mr. Aldous will have questions as well.
22 MS. RANDLE: Well, Your Honor, I guess --
23 THE COURT: Now, I think the way to
24 resolve this is that Mr. Shaw may not represent VSDH
25 pursuant to the section in the rule, the note -- it's

APX 31
 15

1 Note 8 -- that says, "The rule does not prohibitthe
2 attorney who may or will be a witness from participating
3 in the preparation of amatter for presentation to a
4 tribunal. However, to minimize the possibility
of
5 unfair prejudice toan opposing party, the rule
6 prohibits any testifying lawyer who could not serve as
7 an advocate from taking an active role before the
8 tribunal in the presentation of the
matter."
9 So he may stay on the case, but he may not
10 make any presentations before the Court.
11 MS. RANDLE: Well, Your Honor, on what --
12 on what testimony, though? That's -- I guess that's the
13 question. What is the testimony that is being used to
14 prohibit Mr. Shaw from --
15 THE COURT: The problem is we don't know,
16 but we do know that he is likely to be a witness in this
17 case. And that's what the rule addresses. It says, "A
18 lawyer shall not accept or continue employment as an
19 advocate before a tribunal in a contemplated or pending
20 adjudicatory proceeding if the lawyer knows or believes
21 that the lawyer is or may be a witness necessary to
22 establish an essential fact."
23 MS. RANDLE: "An essential fact," that's
24 my point, Your Honor. And that's what --
25 THE COURT: Well, "knows or believes that

APX 32
 16

1 he may be," and therein lies the rub. So my ruling is
2 my ruling. He may continue to represent; he just may
3 not represent before this tribunal.
4 MS. RANDLE: Okay. Your Honor, I then ask
5 for a continuance at this time because Mr.Shaw has been
6 sitting here waiting. Just as Mr. Chaiken said,
7 everyone thought this issue was gone. Now we have a
8 motion set seven -- three weeks before trial. So I'm
9 asking for a continuance of the trial to allow --
10 THE COURT: This is a 2009 case.
11 MS. RANDLE: Your Honor, I understand
12 that.
13 THE COURT: It's been pending on the
14 docket of the Court for an excessive amount of time.
15 The last time Mr. Shaw did appear before the Court, he
16 did appear with Mr. Hagood -- the Court has a specific
17 recollection of that -- with the specific intent that
18 Mr. Hagood would conduct the trial portion of the
19 proceedings and that he would be here in an advisory
20 capacity. And so the Court's ruling is that's what's
21 going to happen.
22 MS. RANDLE: Okay. Your Honor, just to
23 note, since that time, as Mr. Chaiken said, everything
24 has gone away. And now we have a motion filed, but I
25 haven't heard the Court render any discussion regarding

APX 33
 17

1 the delay in now filing a motion and now three weeks
2 before trial. I don't even know if Mr. Hagood is even
3 available now.
4 THE COURT: Mr. Hagood was informed of the
5 time of the trial as was Mr. Shaw, correct?
6 MR. ALDOUS: Yes, Your Honor.
7 MS. RANDLE: Yes. But the question is:
8 Was he informed of the trial with respect to being trial
9 counsel, actual counsel?
10 THE COURT: He was here in that capacity.
11 MS. RANDLE: So, Your Honor, I'd just move
12 for a continuance to allow at least, you know --
13 THE COURT: The Court is disinclined to
14 allow another continuance in a 2009 case.
15 MR. ALDOUS: I object to not getting
16 three-days' notice of the motion, Your Honor.
17 MS. RANDLE: Your Honor, I understand.
18 I'm just moving for the continuance to allow Mr. Hagood
19 to prepare for trial now that counsel has filed a motion
20 three weeks before trial raising the issue before this
21 Court.
22 THE COURT: The testimony before the Court
23 was that Mr. Aldous asked Mr. Shaw some months ago
24 whether or not hewould be proceeding and that no
25 response was provided.

APX 34
 18

1 MS. RANDLE: Your Honor, I --
2 THE COURT: The Court has made its ruling.
3 MR. ALDOUS: Thank you, Your Honor.
4 MR. CHAIKEN: Your Honor, can I just ask
5 one question? I had raised the possibility of getting
6 some of your time to consider those cross-motions.
7 THE COURT: I'll have to look at the
8 docket, Mr. Chaiken. I can't just tell you off the bat.
9 MR. CHAIKEN: Well, my only question is:
10 Would the Court be inclined to allow the shortening of
11 the 21-day notice period, assuming we agree to that?
12 MR. ALDOUS: We do agree to that.
13 THE COURT: I still have to look at the
14 docket.
15 MR. ALDOUS: Right.
16 MR. CHAIKEN: Okay. And if we could do
17 that, I'd appreciate it, just kind of figuring that out
18 one way or the other so that I can close the loop on
19 that.
20 MS. RANDLE: Your Honor, I'm not making
21 any representation before the Courtas to any agreement
22 as to any extension at this time. I just want it to be
23 clear.
24 THE COURT: Would these be summary
25 judgment motions involving VSDH, or would it just be

APX 35
 19

1 involving the Grosses and Mr. Hickok?
2 MR. CHAIKEN: Mr. Hickok was the first
3 movant for summary judgment, and then it's not really a
4 cross -- well, it is. It's related to some of the
5 issues. So in effect, it's a cross-motion
filed by the
6 Grosses, but it's as between the claims involving the
7 Grosses and Mr. Hickok as a guarantor, not VSDH per se.
8 MR. ALDOUS: It's just related to
9 construction of the contract --
10 MR. CHAIKEN: Well, it -- no.
11 MR. ALDOUS: -- essentially.
12 MR. CHAIKEN: Mine also involves one
13 additional issue, which is whether or not there -- as a
14 matter of law, the buy-back obligation, whether owed by
15 VSDH or a guarantor, could have been performed. That's
16 the second issue that's raised in my summaryjudgment
17 motion.
18 MR. ALDOUS: But I thought that was based
19 upon the wording of the contract.
20 MR. CHAIKEN: That is the remedies
21 portion. But, yeah. But anyway,
it would certainly
22 help things if we can get it done. And if the Court
23 can't do it, I certainly understand that timing is what
24 it is.
25 THE COURT: Well, I can't tell you right

APX 36
 20

1 now is what I'm telling you.
2 MR. CHAIKEN: No, no, I understand.
3 THE COURT: I'll just have to get back
4 with you on that.
5 MR. ALDOUS: Are we released, Your Honor?
6 THE COURT: Who's going to -- you're going
7 to present an order, Mr. Aldous?
8 MR. ALDOUS: I will.
9 THE COURT: Circulate it.
10 MR. ALDOUS: Based upon your ruling, I'll
11 have to change it.
12 MS. RANDLE: Your Honor, I'd like to see
13 the order before it's presented to the Court.
14 THE COURT: I just told him to circulate
15 it, Ms. Randle.
16 MS. RANDLE: I understand, but Isaid
17 before it's presented to the Court.
18 THE COURT: That's what "circulate" means.
19 MS. RANDLE: I just want to be clear.
20 It's not always clear to some counsel, Your Honor.
21 THE COURT: All right.
22 MR. CHAIKEN: Do you want us to go check
23 the docket to see what's available or --
24 THE COURT: No. We'll get back with you.
25 MR. CHAIKEN: Okay. Fair enough. Sure.

APX 37
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1 Thanks.
2 MS. RANDLE: Are we excused, Your Honor?
3 THE COURT: You're excused.
4 MR. CHAIKEN: Thanks, Judge.
5 (Proceedings concluded)
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APX 38
 22

1 STATE OF TEXAS )
2 COUNTY OF DALLAS )
3 I, Cathye Moreno, Official Court Reporter in
4 and for the County Court of Dallas County, Texas, County
5 Court At Law Number One, State of Texas, do hereby
6 certify that to the best of my ability the above and
7 foregoing contains a true and correct transcription of
8 all portions of evidence and proceedings requested in
9 writing to be included in the Reporter's Record, in the
10 above-styled and -numbered cause, all of which occurred
11 in open court or in chambers and were reported by me.
12 I further certify that this Reporter's Record
13 of the proceedings truly and correctly reflects the
14 exhibits, if any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Recordis $220.00 and
17 will be paid by the Law Offices of Van Shaw.
18 Witness MY OFFICIAL HAND this the 20th day of

19 June, 2014.

20
/S/CATHYE G. MORENO, CSR
21 Cathye G. Moreno, Texas CSR #6076
Expiration Date: 12/31/14
22 Official Court Reporter
County Court at Law No. 1
23 600 Commerce Street, Suite 550
Dallas, Texas 75202
24 cathyemoreno@sbcglobal.net
(214)653-7496
25

APX 39
TAB 20
 r1u:u
JOHN F. WARREN
COUNTY CLERK
.0
IALLASCOUNT~TEXAS

Conditionally Grant and Opinion Filed August 28, 2014 201~ AUG 29 AH 11: 59

In The