ACCEPTED 12-15-00244-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 12/23/2015 11:28:20 PM Pam Estes Dee CLERK From: NoReply@MyFax.com Sent: Thursday, February 26, 2015 6:30 PM To: Dee Subject: Successful transmission to 19035813701. Re: McCain V. Lott; Discovery Responses FILED IN 12th COURT OF APPEALS TYLER, TEXAS 12/23/2015 11:28:20 PM PAM ESTES Clerk Dear Amy, Re: McCain V. Lott; Discovery Responses The 39 page fax you sent through MyFax.com to 19035813701 was successfully transmitted at 2015-02-27 00:29:39 (GMT). The length of transmission was 1991 seconds The receiving machine's fax ID: If you need assistance, please visit our online help center at http://www.mvfax.com/support/. Thank you for using the MyFax service. Best Regards, myFax.com Contact Customer Support Hours: 24 hours per day, 7 days a week. Email: support!5)myfax com North America Toil-Free: (866)563-9212 UK Free Phone: 0808 804 0015 International: (613) 260-6325 Reference ID: Hi! )2015. Allrights reserved. MyFax is a registered trademark of j2 Cloud Services, Inc. and its affiliates. Your use of the MyFaxservice is subject to the terms of the MyFax Customer Agreement. MyCase- McCain V. Lott; Discovery Responses 12/21/2015 McCain V. Lott; Discovery Responses & Outgoing E-mail 3 Attachments To: vmetcal@tyler.net, 19035813701@my6x.com From: dee@amydlong.com Sent: Thu Feb, 26 2015 5:54 pm Case Link: McCain v. Lott Mr. Metcalf, Attached you will find- 1) Defendant's Response to Request fer Admissions, 2) Defendant's Answers to First Set ofInterrogatories, and 3) Defendant's Answers to Request fer Production. Iwill have the Response to Request fer Disclosure to you tomorrow. Iapologize overiooking it since it was within the body ofyour petition rather than attached like the rest ofthe discovery requests. Ihad called and lefl amessage with your office when you were out ofstate in trial. It has come to our attention Judge Skeen isrelated within the third degree ofaffinity to the Plaintiff Please give mc a call to discuss the best way to handle thatmatter. Iwould like to take your client's oral deposition inthe very near future. Please let me know some dates on which Mrs. McCain and you will be available. Thank you, Amy D. Long Attorney & Counselor at Law 100 E. Ferguson, Suite 610 First Place - Regions Bank Bldg. Tyler, Texas 75702 903-592-1641 telephone 903-592-8043 Jacsimile This E-mail contains legally privileged and/or confidential information. Any use, dissemination, distribution orreproduction ofthis message oritsattachments, ifany, by anyone except the intended recipient(s) isstrictly prohibited. Ifyou received this communication in error, please notify the sender immediately by telephone or reply e-mail and delete this message from your system. Filename McCainVLottDA2 lstlrrogs.pdf Case: McCain v. Lott McCainVLottDR2R4A.pdf Case: McCain v. Lott McCainVLottDR2R4P.pdf Case: McCain v. Lott rrttps://amydJong.my^as&cornfincomngjemails/3249761/prinl 1/1 Cause No. 15-0053-C CHALEY MCCAIN INTHE DISTRICT COURT VS. 241CT JUDICIAL DISTRICT LARRY S. LOTT D/B/A LARRY LOTT INTERIORS SMITH COUNTY, TEXAS DEFENDANTS ANSWERS TO FIRST SET OF INTERROGATORIES TO: ChaleyMcCain, by andthrough herattorney ofrecord, Vance L. Metcalf, Kent, Anderson, Bush, Frost& Metcalf P.C., 1121 ESE Loop 323, Suite 200, Tyler Texas 75701 Pursuantto the Texas Rules ofCivil Procedure, Defendant provides the following Answers to First Set of Interrogatories. INTERROGATORY NO. 1: If you deny Request for Admission No. 1, state the factual and legal basis for said denial ANSWER: Defendant denies Request for Admission No. 1 because the Plaintiffand Defendant neverentered intoavalidenforceable agreement Thereis no written contract between Plaintiff and Defendant There was never an offer acceptance in strict compliance with the terms ofthe offer or a "meeting of the minds'* as tomaterial provisions ofany agreement between Plaintiffand Defendant There was noagreement where both parties consented toterms and there was no consideration for any agreement, orifthere was consideration, it failed in whole orpart Three was never any executionor deliveryofany contract with the intent that it was mutual and binding upon Plaintiffand Defendant Alternatively, and if there was some sort of agreement, which Defendant denies, then all conditions precedent have notoccurred. Plaintiffrailed to give notice of claim as required. Further any agreement orcontract alleged byPlaintiffis illegal and/or void against public policy and enforcement would beunconscionable. Anyalleged agreement between Plaintiffand Defendant was the product of duress, ormistake of feet If there was an agreement, it was discharged by accord and satisfaction and/or was modified. Ifthere was an agreement Defendant alleges Plaintiff failed to mitigate damages and railed to perform the agreement Defendant is entitled to offsets. INTERROGATORY NO. 2: For each payment made to you by Ms. Kay Bracken during 2013 and 2014, state the date the payment was received and the amount ofthe payment DEFENDANTS ANSWERS TQ FIRST SET OF INTERROOATORIFg i ANSWER: Defendant objects to Interrogatory Number 2for the reason such information is aprotected trade secret under Texas Rule ofEvidence 507. See Affidavit of Larry Lott attached as Exhibit "A". Further, the Defendant objects to the extent the burden or expense ofthe proposed discovery outweighs it's likely benefit, taking into account the needs of the case, amount in controversy, the parties' resources, the importance of the issues at state inthe litigation, and the importance ofthe proposed discovery in resolving the issues. TRCP 192.4(b). Further the interrogatory subjects Petitioner and his client to an invasion ofpersonal, constitutional or property rights. TRCP 192.6(b). The interrogatory seeks discovery of information that isnot relevant tothe subject matter of the lawsuit and is notreasonably calculated to lead to thediscovery of admissible evidence. TRCP 192.3(a). Objection is madeto this interrogatory totheextent the discovery isobtainable from some other sourcethat is more convenient, less burdensome, or less expensive. TRCP 192.4(a). INTERROGATORY NO. 3: Foreach payment made by you to Plaintiff Chaley McCain during 2013 and 2014, state the date the payment was made and the amount ofthe payment ANSWER: Defendant objects to Interrogatory Number 3 because the discovery has already been provided to Plaintiffandis therefore unreasonably cumulative or duplicative and is obtainable from some other sources mat is moreconvenient, lessburdensome orlessexpensive. TRCP 192.4(a). Interrogatory Number 3 subjects Defendant to undue burden, unnecessary expense, harassment or annoyance. TRCP 192.6(b). INTERROGATORY NO. 4: State the terms and conditions of any written or oral agreement you had with the Plaintiff Chaley McCain, related towork you performed byyou for Ms. Kay Bracken. ANSWER: None. There was never awritten agreement or any "meeting ofthe minds" as toterms and conditions related toany oral agreement related to any work performed by Defendant for Ms. Kay Bracken. INTERROGATORY NO. 5: State the dollar amount ofmoney you contend is owed, ifany, by you to Ms. Chaley McCain at the present time andthe method used to calculate saidamount ANSWER: $0.00. TTiere is no method used to calculate any amount owed because there was nocontract between Plaintiffand Defendant written or otherwise. DEFENDANT'S ANSWERS TQ FIRST SET OF INTERROGATOR IKS INTERROGATORY NO. 6: . Ifyou contend that you do not currently owe any money to Chaley McCain, state toe legal and factual basis for your contention. ANSWER: No contract exists written or otherwise for Defendant to owe Plaintiff anything. tfully submitted, Amy l^/Long Attorney at Law 100 East Ferguson, Suite 610 Tyler, Texas 75702 903-592-1641 office 903-592-8043 facsimile amv@amvdIong.com State Bar No. 24036984 CERTIFICATE OF SERVICE I certify that a true andcorrect copy of the foregoing has been placed in the UnitedStates mail, postage prepaid, to Vance L. Metcalf Kent, Anderson, Bush, Frost & Metcalf, P.C. 1121 ESE Loop 323, Suite 200 Tyler Texas 75701 on this 'dayofFebruary2015. DEFENDANT'S ANSWERS TO FIRSTSET OF INTERROGATORIES VERIFICATION STATE OF TEXAS COUNTY OF SMITH BEFORE ME, the undersigned authority, on this day personally appeared LARRY S. LOTT. who, after being duly sworn on his oath deposed and stated that his name is LARRY S. LOTT and he is Defendant in the above entitled and numbered cause, that he has read the above and foregoing and that the statements contained therein are within his personal knowledge and are true and correct. Further Affiant sayeth not. :arry S. LOTT SUBSCRIBED AND SWORN TO BEFORE ME by LARRY S. LOTT on the^&^ciay of February 2015 to certify which witness my hand and NotAry^Public, in and for The State of Texas Cause No. 15-0053-C CHALEY MCCAIN IN THE DISTRICT COURT VS. 241st JUDICIAL DISTRICT LARRY S. LOTT D/B/A LARRY LOTT INTERIORS SMITH COUNTY, TEXAS DEFENDANT'S RESPONSE TO REQUEST FOR ADMISSIONS TO: Chaley McCain, by and through her attorney ofrecord, Vance L. Metcalf; Kent, Anderson, Bush, Frost &Metcalf, P.C., 1121 ESE Loop 323, Suite 200, Tyler Texas 75701 Pursuant to the Texas Rules ofCivil Procedure, Defendant provides the following Responsesto Request for Admissions: REQUEST FOR ADMISSION NO. 1: Admit that you entered into avalid and enforceable agreement with PlaintiffChaley McCain whereby you agreed to pay her 10% ofall amounts you billed Ms. Kay Bracken for the furnishing and renovation ofMs. Bracken's properties. RESPONSE: Deny. REQUESTFOR ADMISSIONNO. 2: Admit that you billed Ms. Bracken atotal of$6,200,000.00 for the furnishing and renovationofher properties. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 3: Admit that you owed PlaintiffChaley McCain atotal of$620,000.00 under the agreement referenced in Request forAdmission No. 1. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 4: Admftthat you did not fully comply with your obligations to Ms. McCain under the agreement referenced mRequest for Admission No. 1 RESPONSE: Deny. DEFENDANTS RESPONSF Tn INQUEST mi» An^icc,^ REQUEST FOR ADMISSION NO. 5: Admit that, as a result ofyour breach, you owe Ms. McCain $294,748.95 and that said amount is due and owing at this time. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 6: Admit that the Plaintiff Chaley McCain, referred Kay Bracken to you. RESPONSE: Admit. pectfully submitted, AraVEM=erfg| Attorney at l^n 100 East Ferguson, Suite 610 Tyler, Texas 75702 903-592-1641 office 903-592-8043 facsimile amv(fi).amvdlong.com State Bar No. 24036984 CERTIFICATE OF SERVICE Icertify that atrue and correct copy ofthe foregoing has been placed in the United States mail, postage prepaid, to Vance L. Metcalf Kent, Anderson, Bush, Frost & Metcalf, P.C 1121 ESE Loop 323, Suite 200 Tyler Texas 75701 / on tois^Wdav ofFebruary 2015. DEFENDANT'S RESPONSF TO REQUEST FOR ADMISSIONS Cause No. I5-0053-C CHALEY MCCAIN IN THE DISTRICT COURT VS. 241st JUDICIAL DISTRICT LARRY S. LOTT D/B/A LARRY LOTT INTERIORS SMITHCOUNTY, TEXAS DEFENDANT'S ANSWERS TO REQUEST FOR PRODUCTION TO: Chaley McCain, byand through her attomey ofrecord, Vance L. Metcalf; Kent, Anderson, Bush, Frost &Metcalf, P.C., 1121 ESE Loop 323, Suite 200, Tyler Texas 75701 Pursuant to the Texas Rules ofCivil Procedure, Defendant provides the following Answers to Request for Production. REQUEST FOR PRODUCTION NO. 1: Pioa^ce all invoices billing statements, receipts and other documents reflecting amounts yoiibiUedand/orcollected from Ms. Kay Bracken related to fumishmg orientation work you performed at her properties. "^uvauun ANSWER: Defendant objects to the production ofsuch documents, and documents nave been withheld pursuant to Trade Secret Privilege. TRE 507. REQUEST FOR PRODUCTION NO. 2: Produce all written agreements between you and Kay Bracken. ANSWER: MU» objects to the production ofsuch dements, and dements nave been withheld pursuant to Trade Secret Privilege. TRE 507. REQUEST FOR PRODUCTION NO 3- ANSWER: Defeat objecte to production ofthese documents becausethey are SSTsubjects therefore wHH^T1*"* Defendant to unduekPUMffs Possession^ burden and expense and is pi»P«« < Messages Chaley Details we can keep them at home. That's where my money goes. I'm not some evil greedy person!! Wed, Aug 13,2:31 PM You need to let me know when and if you want to meet. Thu, Aug 14,6:25 PM Just has meeting DR2P1R4P No SIM IfcSSAM 1 % 35% {Messages Chaley Details ^nd work out a solution because we don t want this to get ugly. I do consider you a friend and I was totally shocked when you went off on me. We had a deal. I'm not living high on the hog over here. I stJIIwork ev^^. It cost full tfm6 help with Jirti's-p^nfe^ - . ••> HI r* [ ;i (Message > € DR2P1R4P < Messages Chaley Details the money owed to me. Period. That's all I am trying to be really nice about this. Last year as of dec 1 Kay had spent 3.2 million. You paid me 268,000. That is about a sixty thdusand dollar drflference. Butall I care about is this year.That's why I want to sit iMessage DR2P1R4P No SIM 10:57 AM •i % 35% I K. Messages Chaley Details what you owe me. We can meet today or as early as possible. I'm not in the real estate business and I'm not willing to meet, put anything in writing you wish to discuss, and we are friends! I am writing this...we want to meet to discuss ISI © DR2P1R4P No SIM 10:57AM "f*36%BZ> •^ Messages Chaley Details me for clients. We don't want a terrible court battle. We just want to sit down with you and your financial planner and discuss the situation as soon as possible. Put anything in writing you want to discuss I put in a text I want to discuss © DR2P1R4P 8 No SIM 1fc57AM «f*38%«3 < Messages Chaley Details buyer was referred to us say from a real estate person in Lubbock. Because they picked up the phone and called us with the referral they will ir*ake 25 percent if what we make. $oiSCfiQfor :upa SWanns pard \ [Message DR2P1R4P NoSIM IfcSSAM -f*38% < Messages Chaley Details Dusy.flrsparerrts~ are both very I'll, we spend a lot of time taking care of them. All we want to discuss is the amount if money you owe me. We are not out to get you and Jthought we were friends. In the real estate business if we sell a 5 million dollar piece of property and the : iMessage DR2P1R4P 10 No SIM 10:56 AM •f $ 36% BZ> \ Messages Chaley Details like to meet with you this week. Probably when you close would be best. Just let me know a time Sun, Aug 10, 10:22 PM Put anything in writing you want to discuss and seen it to me Mon, Aug 11, 11:27 AM Jimand I are verv jQl o DR2P1R4P 11 No SIM 10:56 AM -f x 36% MZ1> < Messages Chaley Details me when I bpught that house!! Thank you Chaley!!!! 9999 She must be mad today Omg She is doNe with doc Sun, Aug 10, 8:54 PM Jim and I would DR2P1R4P 12 No SIM 10:56 AM 1 I 36% BZ> < Messages Chaley Details unreal. Kay is sooo excited!! Wed, May 28, 9:48 AM Soo sorry about your dog. Just said a prayer that everything will be okay Thanks Sun, Jul 6, 12:29 PM The devil must have possessed . m © DR2P1R4P 13 NoSIM 1&56AM *$36%«Z> ^ Messages Chaley Details 400,000 from a while back but that would be more of it. You just work on it please and let me know. If it's too hard I can get printout from her accountant. Sure will do Mon, May 12, 9:47 PM The house is DR2P1R4P 14 NoSM 10*6 AM f$3S%aZ> < Messages Chaley Details happening: Tue, May 6, 5:30 PM I know about 60 was when first bookeeperwas there, "foni kept saying she would go back and check it but she never did. Taxes were not included in my^h^cks. I checked it, Then I don't know if she has Paid the iMessage , DR2P1R4P 15 NoStM IfcSSAM -f<38%«Z> \ Messages Chaley Details Hey Uirry. I called Stephanie about my checks. She said I had one for 5000.00. As per Kay's accountant we are over 4 million which makes about 100,0001 havent gotten yet. Steiphanie seems like she is having ^^Biitftimd fisfuririg it oirt. Jq^lkrrieknow 1 iMfcssage DR2P1R4P 16 Li dttHdZUQ . Ks9 si!e;ea Aajeqo saBesse^ y I%IZ %L WV SS--OI- WIS on No SIM 1fc55 AM -f % 37% BZ> < Messages Chaley Details Love that bar!!! Wed, Apr 30, 6:33 PM tsi •• • DR2P1R4P 18 NoSIM 10:55 AM -f >'37%WZj < Messages Chaley Details Some how she thinks the government is going to watch her through the house I'll leave the chandelier in the dining room! Sconces that match, pillars, Italian planters, maybe that will help the sale of the house! I'm also like to have © DR2P1R4P 19 No SIM 10:55 AM f $ 37% tD ^ Messages Chaley Details God he's a nut job!!! I emailed you about it Smart House to&Sj TV Movie - 8?min - Comedy. A tcorugor wins a fully 35^ automated dreamhouse in a •> competition, but soon the computer con&CBmgit ectr-ns • to take ever. 6.1 •. _ - ~ Rata Cr.tic Rcvxiws Share or check-in o DR2P1R4P 20 No SIM 10:55 AM f i 37% ^ Messages Chaley Details unaergroun tunnels, shelters, heliport pads, rockets to the moon , I never say no! Well I'll even do a house on the moon for her! True!! I really worried about that ozone stuff he's doing to her! . Hi © DR2P1R4P 21 No SIM 10:54 AM -f $ 37% BZ> < Messages Chaley Details Just heard back. She said the stress is killing her??? Stress of what??? Then she said she wanted a solar house and I told her shit never worked in them. Probably made her mad Great We can always add solar, DR2P1R4P 22 No SIM 10:54 AM •i > 37% BZ> ^ Messages Chaley Details I'm worried about that ozone stuff she is doing , it says it can kill you on the internet I think it's doing something to her mind!!! . 23 DR2P1R4P No SIM 10:55 AM -f $ 37% KD ^ Messages Chaley Details P9ht Always optional Thu, Apr 24, 7:03 PM Larry basically I am a simple person and this has brought me down more than anything and is taking my health with it!! I'm really sorry, I can't continue on- M H & 24 DR2P1R4P No SIM 10:55 AM i'': 37% bz> ^ Messages Chaley Details the blackout shade that Bobby is painting! So sorry I just can't do this any longer- You have got to see her the minute you get home!! Maybe tell her the house can become dumb. I'm freaking DR2P1R4P 25