On August 19, 2021 a
LTR-JUDGE LOWE FROM BARBARA EMERSON ATTY FOR DEFN
was filed
involving a dispute between
and
in the District Court of Tarrant County.
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FILED
236-327659-21 TARRANT COUNTY
11/19/2021 6:06 PM
THOMAS A. WILDER
DISTRICT CLERK
E-mail address: 214.954.9540
bemerson@bellingersuberg.com 12221 Merit Drive, Suite 1750, Dallas, Texas 75251-2281 Fax: 214.954.9541
November 19, 2021
VIA E-FILING
Honorable Tom Lowe
Presiding Judge
236th Judicial District Court
100 North Calhoun Street
Fort Worth, Texas 76196
Re: Antares Acquisition, LLC v. S. Thomas Mitchell d/b/a Mitchell Investments, LLC
and Crowley McCart Land Venture 1, LLC, Cause No. 236-327659-21 in the 236th
Judicial District Court of Tarrant County, Texas,
Honorable Judge Lowe:
Late yesterday afternoon, counsel for Defendants was served with an unsolicited “Post
Hearing Letter Brief Regarding Defendants’ Motion to Expunge Lis Pendens”. Defendants object
to the submission and request that it be disregarded. Mr. Shelton, though present at the hearing
held on November 18, 2021, elected not to speak at the hearing. If counsel believed that a
legitimate argument existed, he should have made that argument at the hearing and allowed the
Defendants to respond.
The first alleged “fact” raised by Mr. Shelton is the alleged “notice of termination”
delivered after the contract had automatically terminated. The correspondence (Exhibits 8 and 9
to Plaintiff’s Response) merely confirms the termination of the contract and authorized the release
of the Earnest Money. In addition, the existence of the correspondence is irrelevant as to whether
under its terms the contract automatically terminated.
Secondly, Plaintiff’s counsel continues to state that Defendant S. Thomas Mitchell
acquired title to the subject property prior to the expiration of the Inspection Period. As counsel
knows, Mr. Mitchell did NOT acquire title to the property. A separate business organization
acquired the property. Counsel then attempts to allege matters for which Plaintiff has offered no
evidence; alleged communications between Mr. Mitchell and some unknown person. Plaintiff’s
counsel states “to the Plaintiff”. However, as the Plaintiff is a business organization, some
individual must be the recipient. Any reference to such communications must be disregarded.
Plaintiff’s counsel further argues that the failure of conditions precedent under the contract
was irrelevant. It is unclear which of the conditions precedent counsel is referencing. If it is the
“lot split,” paragraph 1(l) of the contract expressly places that duty on the Plaintiff. If counsel is
referencing the “Substantial Completion” condition precedent to the sale and conveyance of lots;
it is true Plaintiff can waive that condition. However, Plaintiff has not offered any evidence it had
done so.
Honorable Tom Lowe
November 19, 2021
Page 2
Contrary to counsel’s statement this is not the type of cause for which a lis pendens was
created. Any property interest alleged by Plaintiff is undefined and the nature of the property to
be conveyed, developed lots, does not exist.
While Plaintiff’s counsel continues to make spurious allegations of fraud, Plaintiff’s
Original Petition makes one claim, breach of contract. There is no claim for fraud. Furthermore,
in its response to the motion to expunge, Plaintiff bases its response on “the important, undisputed
facts in this case.” If true, no further discovery is necessary to determine the validity of the lis
pendens. The fact remains that Plaintiff has failed to establish by a preponderance of evidence the
probable validity of a property claim.
I apologize for the post hearing submission, but felt compelled to respond to Plaintiff’s
submission.
Respectfully submitted,
BELLINGER & SUBERG, L.L.P.
/s/ Barbara L. Emerson
BARBARA L. EMERSON
Texas State Bar No. 06599400
12221 Merit Drive, Suite 1750
Dallas, TX 75251
214.954.9540 – Telephone
214.954.9541 – Facsimile
bemerson@bellingersuberg.com
ATTORNEYS FOR DEFENDANTS
S. THOMAS MITCHELL d/b/a
MITCHELL INVESTMENTS, LLC
AND CROWLEY MCCART LAND
VENTURE I, LLC
BLE:lrm
cc: Donald Shelton (Via E-Serve)
Tyler Hood (Via E-Serve)
\\CAPP-329\ProLaw$\Documents\4960.002\417399.docx
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Barbara Emerson on behalf of Barbara Emerson
Bar No. 06599400
bemerson@bd-law.com
Envelope ID: 59357211
Status as of 11/22/2021 8:31 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Donald Shelton dshelton@brstexas.com 11/19/2021 6:06:38 PM SENT
Barbara LEmerson bemerson@bellingersuberg.com 11/19/2021 6:06:38 PM SENT
Tyler CHood Thood@brstexas.com 11/19/2021 6:06:38 PM SENT
Nicole Burrow nburrow@brstexas.com 11/19/2021 6:06:38 PM SENT
Sarah Frankum sfrankum@brstexas.com 11/19/2021 6:06:38 PM SENT
Haakon T.Donnelly hdonnelly@bellingersuberg.com 11/19/2021 6:06:38 PM SENT
Elizabeth Martinez emartinez@bellingersuberg.com 11/19/2021 6:06:38 PM SENT
Matilda Liu mliu@brstexas.com 11/19/2021 6:06:38 PM SENT
Grant Bannen gbannen@brstexas.com 11/19/2021 6:06:38 PM SENT
Lynn Ruth Moors rmoors@bellingersuberg.com 11/19/2021 6:06:38 PM SENT
Document Filed Date
November 19, 2021
Case Filing Date
August 19, 2021
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FILED 236-327659-21 TARRANT COUNTY 11/19/2021 6:06 PM THOMAS A. WILDER DISTRICT CLERK E-mail address: 214.954.9540 bemerson@bellingersuberg.com 12221 Merit Drive, Suite 1750, Dallas, Texas 75251-2281 Fax: 214.954.9541 November 19, 2021 VIA E-FILING Honorable Tom Lowe Presiding Judge 236th Judicial District Court 100 North Calhoun Street Fort Worth, Texas 76196 Re: Antares Acquisition, LLC v. S. Thomas Mitchell d/b/a Mitchell Investments, LLC and Crowley McCart Land Venture 1, LLC, Cause No. 236-327659-21 in the 236th Judicial District Court of Tarrant County, Texas, Honorable Judge Lowe: Late yesterday afternoon, counsel for Defendants was served with an unsolicited “Post Hearing Letter Brief Regarding Defendants’ Motion to Expunge Lis Pendens”. Defendants object to the submission and request that it be disregarded. Mr. Shelton, though present at the hearing held on November 18, 2021, elected not to speak at the hearing. If counsel believed that a legitimate argument existed, he should have made that argument at the hearing and allowed the Defendants to respond. The first alleged “fact” raised by Mr. Shelton is the alleged “notice of termination” delivered after the contract had automatically terminated. The correspondence (Exhibits 8 and 9 to Plaintiff’s Response) merely confirms the termination of the contract and authorized the release of the Earnest Money. In addition, the existence of the correspondence is irrelevant as to whether under its terms the contract automatically terminated. Secondly, Plaintiff’s counsel continues to state that Defendant S. Thomas Mitchell acquired title to the subject property prior to the expiration of the Inspection Period. As counsel knows, Mr. Mitchell did NOT acquire title to the property. A separate business organization acquired the property. Counsel then attempts to allege matters for which Plaintiff has offered no evidence; alleged communications between Mr. Mitchell and some unknown person. Plaintiff’s counsel states “to the Plaintiff”. However, as the Plaintiff is a business organization, some individual must be the recipient. Any reference to such communications must be disregarded. Plaintiff’s counsel further argues that the failure of conditions precedent under the contract was irrelevant. It is unclear which of the conditions precedent counsel is referencing. If it is the “lot split,” paragraph 1(l) of the contract expressly places that duty on the Plaintiff. If counsel is referencing the “Substantial Completion” condition precedent to the sale and conveyance of lots; it is true Plaintiff can waive that condition. However, Plaintiff has not offered any evidence it had done so. Honorable Tom Lowe November 19, 2021 Page 2 Contrary to counsel’s statement this is not the type of cause for which a lis pendens was created. Any property interest alleged by Plaintiff is undefined and the nature of the property to be conveyed, developed lots, does not exist. While Plaintiff’s counsel continues to make spurious allegations of fraud, Plaintiff’s Original Petition makes one claim, breach of contract. There is no claim for fraud. Furthermore, in its response to the motion to expunge, Plaintiff bases its response on “the important, undisputed facts in this case.” If true, no further discovery is necessary to determine the validity of the lis pendens. The fact remains that Plaintiff has failed to establish by a preponderance of evidence the probable validity of a property claim. I apologize for the post hearing submission, but felt compelled to respond to Plaintiff’s submission. Respectfully submitted, BELLINGER & SUBERG, L.L.P. /s/ Barbara L. Emerson BARBARA L. EMERSON Texas State Bar No. 06599400 12221 Merit Drive, Suite 1750 Dallas, TX 75251 214.954.9540 – Telephone 214.954.9541 – Facsimile bemerson@bellingersuberg.com ATTORNEYS FOR DEFENDANTS S. THOMAS MITCHELL d/b/a MITCHELL INVESTMENTS, LLC AND CROWLEY MCCART LAND VENTURE I, LLC BLE:lrm cc: Donald Shelton (Via E-Serve) Tyler Hood (Via E-Serve) \\CAPP-329\ProLaw$\Documents\4960.002\417399.docx Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Barbara Emerson on behalf of Barbara Emerson Bar No. 06599400 bemerson@bd-law.com Envelope ID: 59357211 Status as of 11/22/2021 8:31 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Donald Shelton dshelton@brstexas.com 11/19/2021 6:06:38 PM SENT Barbara LEmerson bemerson@bellingersuberg.com 11/19/2021 6:06:38 PM SENT Tyler CHood Thood@brstexas.com 11/19/2021 6:06:38 PM SENT Nicole Burrow nburrow@brstexas.com 11/19/2021 6:06:38 PM SENT Sarah Frankum sfrankum@brstexas.com 11/19/2021 6:06:38 PM SENT Haakon T.Donnelly hdonnelly@bellingersuberg.com 11/19/2021 6:06:38 PM SENT Elizabeth Martinez emartinez@bellingersuberg.com 11/19/2021 6:06:38 PM SENT Matilda Liu mliu@brstexas.com 11/19/2021 6:06:38 PM SENT Grant Bannen gbannen@brstexas.com 11/19/2021 6:06:38 PM SENT Lynn Ruth Moors rmoors@bellingersuberg.com 11/19/2021 6:06:38 PM SENT