Preview
Filed: 11/3/2022 2:29 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 69854072
By: Shailja Dixit
CAUSE NO. 20-CV-0228 11/3/2022 2:36 PM
BRENDA HARTNETT IN THE DISTRICT COURT
PLAINTIFF,
VS.
GALVESTON CO., TEXAS
GEORGE BROWN, INDIVIDUALLY AND
AS TRUSTEE, PHYLLIS BROWN
INDIVIDUALLY AND AS TRUSTEE,
THE GEORGE E. BROWN LIVING TRUST,
and MY GALVESTON GETAWAY, INC.,
DEFENDANTS 10 JUDICIAL DISTRICT
RESPONSE TO MOTION FOR SUMMARY JUDGMENT
AND
RESPONSE TO MOTION FOR LEAVE
Plaintiff, Brenda Hartnett files this Response to My Galveston Getaway, Inc.’s (“MGG”)
Motion for Summary Judgment and Motion for Leave and in support thereof, would respectfully
show the Court as follows:
OBJECTION TO TIMELINESS OF MOTION
MGG filed its Motion for Summary Judgment late. It has not been granted leave to late
file its motion. Plaintiff therefore objects to the timeliness of the motion and asks the Court to
deny it on that basis.
INTRODUCTION
MGG has put forward three arguments for summary judgment: (1) “MGG has no
knowledge of pre-existing water damage” and so cannot be held liable for negligent
misrepresentation, (2) Plaintiff's Fraudulent Inducement and Statutory Fraud Claims “pose no
merit because MGG did not possess knowledge of water damage to the structure at the time of
sale”! and (3) “Plaintiff did not rely in Defendants’ Disclosures” because she had her own, non-
invasive inspection done.
It is difficult to tell what sort of motion has been filed. The Motion cites the traditional
standard for summary judgment, but generally attacks Plaintiff's alleged lack of evidence of
MGG’s knowledge and asserts, without basis, Plaintiff's lack of reliance. It lists elements of
claims, as one might do in a No Evidence Motion for Summary Judgment, and appears to challenge
the existence supporting some elements, but does not call itself a No Evidence Motion or cite that
standard. If this is in fact a traditional motion for summary judgment, MGG must lose on all fact-
dependent arguments because it has not provided evidence to support them.
However the Motion is interpreted or argued, here is the truth: MGG refused to produce
relevant documents in response to properly served discovery requests. Had MGG complied with
its obligation to search for and produce responsive emails, it would have produced this email,
written by MGG’s owner, Cathy Bach [Harrison] and sent from MGG’s email address, where she
complains of water intrusion and mold growth in the wall between unit 126 and Plaintiff's unit.
From: mygalvestongetaway@gmail.com,
To: marevilla408@aol.com,
Ge: spblake1@msn.com,
Subject: M126 Mold Growth
Date: Fri, Jan 2, 2015 3:21 pm
4 s
The tenant in # 126 advised me today of mold growth behind the headboard of the entry bedroom (not
the
master). I have a contractor who will look at it tomorrow and likely have the repairs
completed Monday and
Tuesday as the tenant has asthma. If you wish to have someone take pictures when the sheetrock
is removed for
any reason - if this is possibly an Association issue or if the water i
is coming froma unit above - I will let you
know when the work is scheduled so that you can do so.
Thank you
=
Cathie Bach, President
713-81 7-6683
1 Texas requires disclosure of past repairs and mold treatment, not simply disclosure of things present “at the time of
sale”. This allows buyers to investigate the problem and the adequacy of the solution for themselves, particularly
where, as here, problems are concealed beneath drywall.
2
Ex. C. The email is an admission by a party opponent. MGG knew of past water damage, mold
growth and treatment in the wall between unit 126 and unit 128. It knew this mold growth posed
a health threat because, as Mrs. Bach Harrison indicated, “the tenant has asthma”. Id. That
knowledge was superior to the knowledge of anyone else in the transaction. MGG allowed false
disclosures to be made to Plaintiff and profited from them by earning its sales commission. Ex. A
at 28. Frankly, that should end the issue.
But there is more. MGG was in a unique position to know of past problems with the sellers’
condominium. Mrs. Bach Harrison had been an owner at the complex since 2004. Ex. A at 8-9.
She had served as business manager for the entire complex. /d. at 20. She had been on the
Maravilla Homeowners’ Association’s Board of Directors. Jd. As business manager and member
of the board, she had been integrally involved in its repairs from Hurricane Ike. /d at 37-38.
Q Were many of the balconies and the balcony areas affected by moisture intrusion
as a result of Hurricane Ike?
A. Many of the walls were affected by Hurricane Ike. Both balcony walls and other,
interior walls were also affected. So I can't -- I can't identify where it was
specific to. There were some windows broken. There were doors broken.
There was roof damage. There was damage -- there was pool damage. There was
landscaping damage.
Q Okay. And that damage took millions of dollars to repair. Is that true?
A. Correct.
Id. at 38-39. That’s a little more serious than the disclosure made here — that the “grounds
flooded” in Hurricane Ike.
Gonceming the Property at 9520 Seawall
ifthe i
aie Sis
explain (attach addi
pe ae ae
SS
*A single blockable Ti : drain may
case eecion entiapment :
es i aber
Ex. D.” It certainly makes the following disclosures terribly misleading:
is F
ie
er
| u
et
MGG and its owner clearly knew that, after Ike, interior walls throughout the complex had been
“shocked and blocked” before new sheetrock was installed. Jd. at 57. That is, Mrs. Bach Harrison
and MGG were aware of the fact that the walls had been treated for moisture damage and that
those treatments were then hidden beneath new sheetrock.
In its deposition, MGG has already conceded the knowledge denies in its own motion. Ex.
A at 38-39. But here is the point: The person who had complained about the presence of mold in
a wall shared with unit 128—and demanded it be repaired—allowed this disclosure to be made to
Mrs. Hartnett:
2 Exhibit D was produced by MGG in discovery and is self-authenticating.
4
‘Section 5. are you (Seller) aware of any of the
Not aware, following (Mark Yes (Y) if you are
aware. Mark No (N) if you are
¥ N
If yes, attach any certificates or other documentation identifying the extent of the
certificate of mold remediation or other remediation),
Ex. D. That is why MGG has been sued and why it will one day answer to a jury.
ARGUMENTS & AUTHORITIES
I MGG certainly knew of prior water damage.
Despite its argument to the contrary, MGG was in a unique position to know of past
problems with the sellers’ condominium.? MGG’s owner and/or MGG itself had owned units at
the complex since 2004. Ex. A at 8-9. Mrs. Bach Harrison had served as property manager for
the complex. Ex. A at 20. She had been on the board that managed the complex. Jd. She had
also made numerous complaints concerning moisture intrusion and had herself raised the issue of
water intrusion and mold in the wall cavity between unit 126 (which she managed) and unit 128
(which she later managed and sold to Mrs. Hartnett). Ex. B and C.
In their disclosures, the seller denied knowledge of previous roof repairs, structural repairs,
moisture intrusion and wood rot. Ex. D. They had also denied that any repairs had been made to
the property to remediate environmental hazards such as mold.
perareresa
Section 5. Are you (Seller) aware of any -
Not aware.) of the following (Mark Yes,
(Y) if you are aware. M:
lark No (N)if you are
SEN
a
7 Any repairs or treatments, other than routine mainienance, made to i Pr
hazards such as asbestos, radon, lead-based paint, urea-formaidehyde, or m
old.
opertyto remedialo environmental
If yes, attach any certificates or other documentation identifyin g the extent ot he remesiation. or xara,
certificate of mold remediation or other remediation),
3 The cases relied on by MGG support Plaintiff's position. Quoting directly from MGG’s Motion: “While a broker
has no duty to inspect the property and disclose all facts which might affect its value or desirability, one who knows
all the facts and provides false information, or one who makes a partial disclosure and conveys a false impression,
may be liable for negligent misrepresentation. See Hagans v. Woodruff, 830 S.W.2d 732, 736 (Tex. App. 1992, no
writ) (citing Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711, 715 (Tex .App. 1991, writ denied)).
5
Ex. D.
These representations were false and MGG knew them to be false when it transmitted the
disclosures to Mrs. Hartnett. For example:
. After Hurricane Ike, Mrs. Bach Harrison, MGG’s owner, was on the board at the
Maravilla and reviewed contracts reflecting millions of dollars in damage to the
property, including structural damage, roof damage, and damage to interior walls.
Ex. A at 38-39.
On December 29, 2010, MGG’s owner, Mrs. Bach Harrison, had written (in a
document she failed to produce in response to discovery): “Balcony of unit #128
is not graded properly and water is penetrating from the balcony of that unit into
the unit next door (#126) and causing damage.” Ex. B.
From: maravillaoffice@aol.com,
To: twhite@baselineconstruction.com, jkunz@baselineconstruction.com, gschilling@baselineconstruction.com,
cynthia@galvestonsales.com, lyssagraham@msn.com, |kubisprojectoasis@fscgal.org, cathiebach@sbcglobal.net,
121972@hotmail.cam,
Subject: Maravilla Unit # 128
Date: Wed, Dec 29, 2010 4:25 pm
som
BaseLine - | need some concrete help, please - on our existing property. Balcony of unit # 128 is not graded properly and
water is penetrating from the balcony of that unit into the unit next door (#126) and causing damage. Can you please look at
this and provide us with a price to grade the concrete to the northeast so that it drains off the edge of the balcony. The owner
has stamped concrete on the center of the balcony - it used to be all the way around, and the owner does not wish to remove
what remains there so we will need to work around that if we can. Itis the Association's responsibility to ensure that water
does not penetrate from the balcony into units.
If we could get a price ASAP to have this completed so that the work can be done as early in the week as possible that would
be great,
Thank you.
Cathie Bach
Business Manager
Ex. B.
. On January 15, 2015, writing from her MGG email account and acting as President
of that company (in a document she failed to produce in response to discovery),
Mrs. Bach Harrison wrote: “The tenant in #126 advised me today of mold growth
behind the headboard of the entry bedroom .. .” Ex. C. The wall that was the
subject of her complaint runs between unit 126 and unit 128.
From: mygalvestongetaway@gmail.com,
To: maravilla409@aol.com,
Ce: spblake1@msn.com,
Subject: M126 Mold Growth
Date: Fri, Jan 2, ano 3:21 pm
The tenant in # 126 advised me today of mold growth behind the headboard of the entry bedroom
(not the
master). I have a contractor who will look at it tomorrow and likely have the repairs comp!
cted Monday and
Tuesday as the tenant has asthma. If you wish to have someone take pictures when the sheetrock
is removed for
any reason - if this is possibly an Association issue or if the water is coming from
a unit above - I will let you
know when the work is scheduled so that you can do so
Thank you.
=
Cathie Bach, President
713-81 7-6683
Ex.C.
Just three years before the transaction at issue, the owner of MGG had reported water
intrusion and mold-related repairs to the wall between unit 126 and unit 128. That issue was not
disclosed to Mrs. Hartnett. It should have been. MGG was obligated to ensure the disclosures
were not false because it had actual knowledge of their falsity. One who knows all the facts and
provides false information, or one who makes a partial disclosure and conveys a false impression,
may be liable for negligent misrepresentation. See Hagans v. Woodruff, 830 S.W.2d 732, 736 (Tex.
App. 1992, no writ) (citing Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711, 715 (Tex .App.
1991, writ denied)).
II. MGG’s “time of sale” argument is incorrect.
A. MGG has misstated the applicable standard.
Texas does not merely require disclosure of conditions present at the time of sale. It
requires disclosure of “previous roof repairs’ 296 other structural repairs” and “[a]ny repairs or
treatments, other than routine maintenance, made to the Property to remediate environmental
hazards such as... mold”. Ex. D. The structure of MGG’s argument is legally incorrect and
misstates what was required of MGG.
B. MGG knew the disclosures were false.
MGG certainly knew of millions of dollars in structural and roof repairs at the Maravilla.
Ex. A at 38-39. It knew units had been “shocked and blocked” before new sheetrock was installed,
concealing the repairs. Jd. at 57. And, in 2015, MGG’s own President had complained of moisture
intrusion between unit 126 and unit 128 and referenced the presence of mold in that wall cavity.
Ex. C.
Plaintiff has sued MGG for statutory fraud under TEX. BUS. & COM.CODE ANN. §
27.01. That section allows direct claims against an agent who, with actual awareness, allows
another’s false statement to stand and benefits from the transaction.
(d) A person who (1) has actual awareness of the falsity of a representation or
promise made by another person and (2) fails to disclose the falsity of the
representation or promise to the person defrauded, and (3) benefits from the false
representation or promise commits the fraud described in Subsection (a) of this
section and is liable to the person defrauded for exemplary damages. Actual
awareness may be inferred where objective manifestations indicate that a person
acted with actual awareness.
Here, MGG’s owner, Cathy Bach Harrison, transmitted blank Sellers Disclosures to the
Browns, later received completed Sellers Disclosures from the Brown, and then transmitted those
disclosures to Mrs. Hartnett’s agent. Ex. A at 32-36. At that time, Mrs. Bach Harrison knew of
the Ike damage to the interior and the moisture intrusion at the balcony; she herself had reported
mold in the walls. Ex. A at 38-39, Ex. B, Ex, C. MGG can be held liable for statutory fraud and
fraudulent inducement.
lil. Mrs. Hartnett Relied on the Disclosures.
As with the authority cited in support of MGG’s Negligent Misrepresentation argument,
the authority cited here supports Plaintiff's claims, not MGG’s defenses. For example, Lim v.
Lomeli? states the problem this way:
4 Lim v. Lomeli absolutely does not stand for the proposition ascribed to it: “Where the findings of a home inspection
8
In short, the Lims have failed to present more than a scintilla of evidence that
Lomeli knew anything more or different than the Lims did about the condition of
the home.
Lim v. Lomeli, No. 04-06-00389-CV (Tex. App.—San Antonio 2007) (memo op.). The defendant
there was not shown to have “more or different” knowledge. Had such been shown, the defendant
would have lost.
Here, Mrs. Bach Harrison clearly knew “more and different” things than an inspection
could reveal: She knew of the Ike damage to the interior and the moisture intrusion at the balcony;
she herself had reported mold in the walls and requested treatment for them. Ex. A at 38-39, Ex.
B, Ex, C. Moreover, MGG knew that the treatment for water intrusion—shocking and blocking—
had been hidden beneath the installation of new sheetrock. Ex. A at 57. Inspection cannot cure
this. As Mrs. Hartnett has testified:
Q And you mentioned this already, and I think I sent it as an exhibit, but you had a
home inspection report done by Legacy Inspections?
A. Yes, sir.
Q And that was in April of 2018 when you bought it?
Yes, sir.
And they specifically inspected the walls that are at issue here along the balcony?
I would not have had them inspect that had I known that that was an issue. That
was not provided to me on the disclosure.
I understand. But they inspect every wall, don't they, when you hire an inspector?
They don't -- They do not pull off baseboards, and they cannot destroy property to
check everything or every wall would have holes and torn up... .
Ex. E at 26-27.
are made available to a buyer, the buyer may not allege claims of misrepresentation and fraud against a real estate
agent.” MGG motion at {18
9
Here, there is more than a scintilla of evidence MGG knew something “more and different”
about the condition of the home than Mrs. Harnett or her inspector. She specifically knew it had
suffered from moisture intrusion in the past, undergone significant structural repairs, been shocked.
and blocked, been treated for mold and then had all those conditions covered with sheetrock. Ex.
A at 38-39, Ex. B, Ex, C. MGG’s motion should be denied.
PRAYER
For these reasons, the Parties respectfully request that the Court deny MGG’s Motion for
Summary Judgment, deny Plaintiff's Motion for Leave, strike MGG’s untimely cross claim and
strike MGG’s untimely Motion for Summary Judgment.
Respectfully submitted,
THE SPAETH LAW FIRM
{\ che) S P ath
Anthony Spaeth
State Bar No. 24027875
2500 E. TC Jester, Suite 278
Park One on the Bayou
Houston, TX 77008
Tel. (713) 485-0973
Fax (713) 493-7633
aspaeth@spaeth-law.com
ATTORNEY FOR PLAINTIFF
10
CERTIFICATE OF SERVICE
The undersigned certifies that on this the 3rd day of November, 2022, the foregoing
document was served via eservice and if unavailable in accordance with the Texas Rules of Civil
Procedure on the following counsel of record:
Cris A. Rasco
Rasco Law Firm
619 8th Avenue N
Texas City, Texas 77590
Douglas W. Poole
McLeod, Alexander, Powel & Apffel
802 Rosenberg
P.O. Box 629
Galveston, Texas 77553
Ade Y cut}
Anthony Spaeth
11
Page
CATHLEEN COMEAUX HARRISON - March 18, 2022
CAUSE NO. 20-CV-0228
BRENDA HARTNETT IN THE DISTRICT COURT
PLAINTIFF,
VS.
GEORGE BROWN, INDIVIDUALLY )
AND AS TRUSTEE, PHYLLIS ) GALVESTON COUNTY, TEXAS
BROWN INDIVIDUALLY AND AS )
TRUSTEE, THE GEORGE E. BROWN )
LIVING TRUST, AND MY )
GALVESTON GETAWAY, INC., )
DEFENDANTS. ) 10TH JUDICIAL DISTRICT
ORAL DEPOSITION OF
CATHLEEN COMEAUX HARRISON
MARCH 18, 2022
ORAL DEPOSITION of CATHLEEN COMEAUX HARRISON,
produced as a witness at the instance of the Plaintiff,
and duly sworn, was taken in the above-styled and
numbered cause on the 18th day of March, 2022, from
10:26 a.m. to 12:11 p.m., before Mary Eugenia Snow, CSR
in and for the State of Texas, reported by stenotype
machine, at the offices of the Rasco Law Firm,
619 8th Avenue N, Texas City, Texas, pursuant to the
Texas Rules of Civil Procedure and the provisions stated
on the record.
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CATHLEEN COMEAUX HARRISON - March 18, 2022
INDEX
PAGE
Appearances
Stipulations
CATHLEEN COMEAUX HARRISON
Examination by Mr. Spaeth
Examination by Mr. Poole 60
Re-Examination by Mr. Spaeth 70
Re-Examination by Mr. Poole 75
Signature and Changes 78
Reporter's Certificate 80
10 EXHIBITS
11 NO. DESCRIPTION PAGE
12 Exhibit TREC Residential Condominium Contract 25
13 Exhibit TREC Residential Leasing and Property
Management Agreement 29
14
Exhibit Seller's Disclosure Notice 30
15
Exhibit Email, lst email, Gage to My
16 Galveston Getaway, 4/16/18 30
17 Exhibit Email, lst email, Gage to My
Galveston Getaway, 4/20/18 30
18
Exhibit Email, lst email, My Galveston Getaway
19 to Gage 4/19/18 33
20 Exhibit Email, lst email, Gage to My
Galveston Getaway, 4/16/18 34
21
Exhibit Email, lst email, Rasco to Moore,
22 4/3/12 51
23 Exhibit IDGC/RA Group Invoice 69
24 Exhibit 10 SeaHouse Construction Company,
"Exhibit A," Bates No. BROWN 000014 69
25
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CATHLEEN COMEAUX HARRISON - March 18, 2022
APPEARANCES
FOR THE PLAINTIFF:
Mr. Anthony Spaeth
THE SPAETH LAW FIRM, PLLC
2500 East T.C. Jester, Suite 278
Houston, Texas 77008
Tel: (713) 485-0973
Email: aspaeth@spaeth-law.com
FOR THE DEFENDANT MY GALVESTON GETAWAY, INC.:
Mr. Cris A. Rasco
RASCO LAW FIRM
619 8th Avenue N
10 Texas City, Texas 77590
Tel: (409) 943-5566
11 Email: cris@rascolaw.com
12
FOR THE DEFENDANTS GEORGE BROWN, INDIVIDUALLY AND AS
13 TRUSTEE, PHYLLIS BROWN INDIVIDUALLY AND AS TRUSTEE, and
THE GEORGE E. BROWN LIVING TRUST:
14
15 Mr. Douglas W. Poole (Via telephone)
McLEOD, ALEXANDER, POWEL & APFFEL, PC
16 802 Rosenberg
Galveston, Texas 77553
17 Tel: (409) 877-7645
Email: dwpoole@mapalaw.com
18
19 ALSO PRESENT: Ms. Brenda Hartnett
20
21
22
23
24
25
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CATHLEEN COMEAUX HARRISON - March 18, 2022
THE REPORTER: Did you want to have the
witness read and sign the deposition transcript?
MR. RASCO: Yes.
THE WITNESS: Yes.
CATHLEEN COMEAUX HARRISON,
having been first duly sworn, testified as follows:
EXAMINATION
BY MR. SPAETH:
Q Good morning, Mrs. Harrison. My name is
10 Anthony Spaeth. I represent Brenda Hartnett in this
11 litigation. How are you?
12 A Fabulous. How are you today?
13 Q I'm well.
14 You've been deposed several times in the
15 past; is that right?
16 Correct.
17 What names have you been deposed under in the
18 past?
19 Cathleen Comeaux Bach.
20 And could you spell Comeaux for the court
21 reporter, please.
22 A C-o-m-e-a-u-x, and Cathleen is with a "Cc," not
23 a
"KOM
24 Q Okay. Any other names that you've been
25 deposed under in the past?
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CATHLEEN COMEAUX HARRISON - March 18, 2022
A I left there in August of 2011, I believe.
Q So you had been the manager for the Maravilla
for the 18 months prior to August of 2011?
A Approximately. I can't remember the exact
dates.
Q How did you come to be the manager of the
Maravilla?
A I was asked by the board to serve in that
capacity.
10 Q Who with the board asked you to serve in that
11 capacity?
12 A Lloyd Rinderer, Lyssa Graham, and John Kubis.
13 Q At the time that you became the manager of the
14 Maravilla, did you own already at that time a unit in
15 the Maravilla?
16 A Yes
17 Q How many onits did you une -- did you own?
18 A How many onits did I une?
19 Q How many -- I'm sorry. Strike that. You're
20 right.
21 How many units did you own?
22 A I think at that time I owned two. I can't
23 remember when I bought the second one.
24 Q When did you purchase your first unit in the
25 Maravilla?
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CATHLEEN COMEAUX HARRISON - March 18, 2022
A 2004.
Q Did your father already own units in the
Maravilla at the time?
No.
When did your father first purchase his first
unit?
The attorney just dropped off the phone, if
you care.
Q I do. I appreciate that.
10 MR. SPAETH: Let's go off the record
11 briefly and see if we can't solve that.
12 (Recess from 10:32 a.m. to 10:33 a.m.)
13 Q So going back in time a moment, when did your
14 father first purchase a unit in the Maravilla?
15 A I don't remember.
16 Q Did he purchase that unit through you as a
17 realtor?
18 A The first one, he did not; the second one, he
19 did.
20 Q Prior to becoming manager of the Maravilla,
21 what had you done for a living?
22 A For a few years, I was a stay-at-home mom; and
23 before that, I worked in corporate relocation.
24 Q What's your educational background? How far
25 did you go in school?
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CATHLEEN COMEAUX HARRISON - March 18, 2022
A Yes.
Q Did you review the Browns! disclosures before
providing them to the buyer?
A I don't recall whether I did or not.
Q In addition to serving as property manager for
the Maravilla, did you also serve on its board?
A I did.
Q When did you serve on the board of the
Maravilla?
10 A I cannot recall the dates.
11 Q Do you recall the last date that you served on
12 the board?
13 A Probably the same date that is the last date I
14 was employed there.
15 Q So up until --
16 A I resigned from both at the same time.
17 Q And I think earlier you said you thought that
18 that date was August of 2011. Is that right?
19 A I think that's correct.
20 Q Why did you resign from the board of the
21 Maravilla?
22 A To pursue my own business.
23 Q Were you -- were you elected onto the board?
24 A I was originally appointed a long time ago and
25 later elected.
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CATHLEEN COMEAUX HARRISON - March 18, 2022
the disclosures required by Section 5.008 of the Texas
Property Code. Is that right?
A Correct.
Q What were the consequences, under Section 7.B.
of the property -- of the sales agreement if the notice
was not provided?
A "If Buyer does not receive the Notice, Buyer
may terminate this contract at any time prior to the
closing and the earnest money will be refunded to
10 Buyer."
11 Q Okay. So if the disclosure notice was not
12 provided to Mrs. Hartnett, she could back out of this
13 contract. Is that true?
14 A That's what it says.
15 Q How were you to be paid, as the real estate
16 agent for the Browns, under this contract?
17 A At the time of closing, I would be paid a
18 commission.
19 Q So your company was going to profit off of the
20 sale of this unit. Is that true?
21 A That's correct.
22 Q What percentage of the sales price were you to
23 receive?
24 A I don't recall. I would have to see my
25 listing agreement with them.
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CATHLEEN COMEAUX HARRISON - March 18, 2022
Q How did you meet the Browns?
A They were owners of another unit at the
Maravilla.
Q Were you managing that unit for them?
A I was not.
Q So I ask again, how did you become the manager
for the Browns? How did you meet them?
A I met them at owners! meetings.
Q And then represented yourself as a property
10 manager and got their business?
11 A Correct.
12 (Harrison Exhibit No. 3 marked)
13 Q I'm handing you now what I've marked as
14 Exhibit No. 3, the Texas seller's disclosure notice. Is
15 that the disclosure notice that was made in conjunction
16 with the sale of the Browns' property to Mrs. Hartnett?
17 A It appears to be, yes.
18 Q Okay. Now, when did you receive -- do you
19 know what date you received that seller's disclosure
20 notice from the Browns?
21 A I do not.
22 (Harrison Exhibit Nos. 4 and 5 marked)
23 Q Mrs. Harrison, I'm handing you now what I've
24 marked as Exhibit 5 to your deposition. Can you take a
25 look at that, and I'll discuss it with you briefly.
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CATHLEEN COMEAUX HARRISON - March 18, 2022
A Okay.
Q What is Exhibit No. 5?
A It is an email from Eric Gage to myself
indicating they did not have a seller's disclosure
completed, and it's dated April 20th.
Q Okay. Eric Gage was the representative for
Mrs. Hartnett in the transaction with the Browns. Is
that true?
A Yes.
10 Q Okay. So Exhibit No. 5 is an email requesting
11 the disclosures after the contract with the Browns had
12 been signed. Is that true?
13 A What's the date of the contract? The contract
14 is not dated.
15 Q I'll hand you what I've got. That -- and I
16 apologize. That version of the contract may not be --
17 may not be dated. Here's what I've got as Exhibit
18 No. 4, if you could take a look at that and I'll ask you
19 some questions about it.
20 A This is an email from Eric Gage to myself
21 dated April 16th, indicating that there is a contract
22 attached. The attachments only show as "Scan" and
23 "Scan," so -- so I would assume that's what is there,
24 but it doesn't state that.
25 Q All right. So we've got a contract being
COURT REPORTERS CLEARINGHOUSE
(713) 626-2629
Page 32
CATHLEEN COMEAUX HARRISON - March 18, 2022
negotiated in the -- in the month of April, in any case.
Is that right?
A Apparently, yes.
Q You are representing the seller and Mr. Gage
is representing the buyer. Is that right?
A That is correct.
Q And we have, in Exhibit No. 5, a request that
the
Preview
Filed: 11/3/2022 2:29 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 69854072 By: Shailja Dixit CAUSE NO. 20-CV-0228 11/3/2022 2:36 PM BRENDA HARTNETT IN THE DISTRICT COURT PLAINTIFF, VS. GALVESTON CO., TEXAS GEORGE BROWN, INDIVIDUALLY AND AS TRUSTEE, PHYLLIS BROWN INDIVIDUALLY AND AS TRUSTEE, THE GEORGE E. BROWN LIVING TRUST, and MY GALVESTON GETAWAY, INC., DEFENDANTS 10 JUDICIAL DISTRICT RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO MOTION FOR LEAVE Plaintiff, Brenda Hartnett files this Response to My Galveston Getaway, Inc.’s (“MGG”) Motion for Summary Judgment and Motion for Leave and in support thereof, would respectfully show the Court as follows: OBJECTION TO TIMELINESS OF MOTION MGG filed its Motion for Summary Judgment late. It has not been granted leave to late file its motion. Plaintiff therefore objects to the timeliness of the motion and asks the Court to deny it on that basis. INTRODUCTION MGG has put forward three arguments for summary judgment: (1) “MGG has no knowledge of pre-existing water damage” and so cannot be held liable for negligent misrepresentation, (2) Plaintiff's Fraudulent Inducement and Statutory Fraud Claims “pose no merit because MGG did not possess knowledge of water damage to the structure at the time of sale”! and (3) “Plaintiff did not rely in Defendants’ Disclosures” because she had her own, non- invasive inspection done. It is difficult to tell what sort of motion has been filed. The Motion cites the traditional standard for summary judgment, but generally attacks Plaintiff's alleged lack of evidence of MGG’s knowledge and asserts, without basis, Plaintiff's lack of reliance. It lists elements of claims, as one might do in a No Evidence Motion for Summary Judgment, and appears to challenge the existence supporting some elements, but does not call itself a No Evidence Motion or cite that standard. If this is in fact a traditional motion for summary judgment, MGG must lose on all fact- dependent arguments because it has not provided evidence to support them. However the Motion is interpreted or argued, here is the truth: MGG refused to produce relevant documents in response to properly served discovery requests. Had MGG complied with its obligation to search for and produce responsive emails, it would have produced this email, written by MGG’s owner, Cathy Bach [Harrison] and sent from MGG’s email address, where she complains of water intrusion and mold growth in the wall between unit 126 and Plaintiff's unit. From: mygalvestongetaway@gmail.com, To: marevilla408@aol.com, Ge: spblake1@msn.com, Subject: M126 Mold Growth Date: Fri, Jan 2, 2015 3:21 pm 4 s The tenant in # 126 advised me today of mold growth behind the headboard of the entry bedroom (not the master). I have a contractor who will look at it tomorrow and likely have the repairs completed Monday and Tuesday as the tenant has asthma. If you wish to have someone take pictures when the sheetrock is removed for any reason - if this is possibly an Association issue or if the water i is coming froma unit above - I will let you know when the work is scheduled so that you can do so. Thank you = Cathie Bach, President 713-81 7-6683 1 Texas requires disclosure of past repairs and mold treatment, not simply disclosure of things present “at the time of sale”. This allows buyers to investigate the problem and the adequacy of the solution for themselves, particularly where, as here, problems are concealed beneath drywall. 2 Ex. C. The email is an admission by a party opponent. MGG knew of past water damage, mold growth and treatment in the wall between unit 126 and unit 128. It knew this mold growth posed a health threat because, as Mrs. Bach Harrison indicated, “the tenant has asthma”. Id. That knowledge was superior to the knowledge of anyone else in the transaction. MGG allowed false disclosures to be made to Plaintiff and profited from them by earning its sales commission. Ex. A at 28. Frankly, that should end the issue. But there is more. MGG was in a unique position to know of past problems with the sellers’ condominium. Mrs. Bach Harrison had been an owner at the complex since 2004. Ex. A at 8-9. She had served as business manager for the entire complex. /d. at 20. She had been on the Maravilla Homeowners’ Association’s Board of Directors. Jd. As business manager and member of the board, she had been integrally involved in its repairs from Hurricane Ike. /d at 37-38. Q Were many of the balconies and the balcony areas affected by moisture intrusion as a result of Hurricane Ike? A. Many of the walls were affected by Hurricane Ike. Both balcony walls and other, interior walls were also affected. So I can't -- I can't identify where it was specific to. There were some windows broken. There were doors broken. There was roof damage. There was damage -- there was pool damage. There was landscaping damage. Q Okay. And that damage took millions of dollars to repair. Is that true? A. Correct. Id. at 38-39. That’s a little more serious than the disclosure made here — that the “grounds flooded” in Hurricane Ike. Gonceming the Property at 9520 Seawall ifthe i aie Sis explain (attach addi pe ae ae SS *A single blockable Ti : drain may case eecion entiapment : es i aber Ex. D.” It certainly makes the following disclosures terribly misleading: is F ie er | u et MGG and its owner clearly knew that, after Ike, interior walls throughout the complex had been “shocked and blocked” before new sheetrock was installed. Jd. at 57. That is, Mrs. Bach Harrison and MGG were aware of the fact that the walls had been treated for moisture damage and that those treatments were then hidden beneath new sheetrock. In its deposition, MGG has already conceded the knowledge denies in its own motion. Ex. A at 38-39. But here is the point: The person who had complained about the presence of mold in a wall shared with unit 128—and demanded it be repaired—allowed this disclosure to be made to Mrs. Hartnett: 2 Exhibit D was produced by MGG in discovery and is self-authenticating. 4 ‘Section 5. are you (Seller) aware of any of the Not aware, following (Mark Yes (Y) if you are aware. Mark No (N) if you are ¥ N If yes, attach any certificates or other documentation identifying the extent of the certificate of mold remediation or other remediation), Ex. D. That is why MGG has been sued and why it will one day answer to a jury. ARGUMENTS & AUTHORITIES I MGG certainly knew of prior water damage. Despite its argument to the contrary, MGG was in a unique position to know of past problems with the sellers’ condominium.? MGG’s owner and/or MGG itself had owned units at the complex since 2004. Ex. A at 8-9. Mrs. Bach Harrison had served as property manager for the complex. Ex. A at 20. She had been on the board that managed the complex. Jd. She had also made numerous complaints concerning moisture intrusion and had herself raised the issue of water intrusion and mold in the wall cavity between unit 126 (which she managed) and unit 128 (which she later managed and sold to Mrs. Hartnett). Ex. B and C. In their disclosures, the seller denied knowledge of previous roof repairs, structural repairs, moisture intrusion and wood rot. Ex. D. They had also denied that any repairs had been made to the property to remediate environmental hazards such as mold. perareresa Section 5. Are you (Seller) aware of any - Not aware.) of the following (Mark Yes, (Y) if you are aware. M: lark No (N)if you are SEN a 7 Any repairs or treatments, other than routine mainienance, made to i Pr hazards such as asbestos, radon, lead-based paint, urea-formaidehyde, or m old. opertyto remedialo environmental If yes, attach any certificates or other documentation identifyin g the extent ot he remesiation. or xara, certificate of mold remediation or other remediation), 3 The cases relied on by MGG support Plaintiff's position. Quoting directly from MGG’s Motion: “While a broker has no duty to inspect the property and disclose all facts which might affect its value or desirability, one who knows all the facts and provides false information, or one who makes a partial disclosure and conveys a false impression, may be liable for negligent misrepresentation. See Hagans v. Woodruff, 830 S.W.2d 732, 736 (Tex. App. 1992, no writ) (citing Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711, 715 (Tex .App. 1991, writ denied)). 5 Ex. D. These representations were false and MGG knew them to be false when it transmitted the disclosures to Mrs. Hartnett. For example: . After Hurricane Ike, Mrs. Bach Harrison, MGG’s owner, was on the board at the Maravilla and reviewed contracts reflecting millions of dollars in damage to the property, including structural damage, roof damage, and damage to interior walls. Ex. A at 38-39. On December 29, 2010, MGG’s owner, Mrs. Bach Harrison, had written (in a document she failed to produce in response to discovery): “Balcony of unit #128 is not graded properly and water is penetrating from the balcony of that unit into the unit next door (#126) and causing damage.” Ex. B. From: maravillaoffice@aol.com, To: twhite@baselineconstruction.com, jkunz@baselineconstruction.com, gschilling@baselineconstruction.com, cynthia@galvestonsales.com, lyssagraham@msn.com, |kubisprojectoasis@fscgal.org, cathiebach@sbcglobal.net, 121972@hotmail.cam, Subject: Maravilla Unit # 128 Date: Wed, Dec 29, 2010 4:25 pm som BaseLine - | need some concrete help, please - on our existing property. Balcony of unit # 128 is not graded properly and water is penetrating from the balcony of that unit into the unit next door (#126) and causing damage. Can you please look at this and provide us with a price to grade the concrete to the northeast so that it drains off the edge of the balcony. The owner has stamped concrete on the center of the balcony - it used to be all the way around, and the owner does not wish to remove what remains there so we will need to work around that if we can. Itis the Association's responsibility to ensure that water does not penetrate from the balcony into units. If we could get a price ASAP to have this completed so that the work can be done as early in the week as possible that would be great, Thank you. Cathie Bach Business Manager Ex. B. . On January 15, 2015, writing from her MGG email account and acting as President of that company (in a document she failed to produce in response to discovery), Mrs. Bach Harrison wrote: “The tenant in #126 advised me today of mold growth behind the headboard of the entry bedroom .. .” Ex. C. The wall that was the subject of her complaint runs between unit 126 and unit 128. From: mygalvestongetaway@gmail.com, To: maravilla409@aol.com, Ce: spblake1@msn.com, Subject: M126 Mold Growth Date: Fri, Jan 2, ano 3:21 pm The tenant in # 126 advised me today of mold growth behind the headboard of the entry bedroom (not the master). I have a contractor who will look at it tomorrow and likely have the repairs comp! cted Monday and Tuesday as the tenant has asthma. If you wish to have someone take pictures when the sheetrock is removed for any reason - if this is possibly an Association issue or if the water is coming from a unit above - I will let you know when the work is scheduled so that you can do so Thank you. = Cathie Bach, President 713-81 7-6683 Ex.C. Just three years before the transaction at issue, the owner of MGG had reported water intrusion and mold-related repairs to the wall between unit 126 and unit 128. That issue was not disclosed to Mrs. Hartnett. It should have been. MGG was obligated to ensure the disclosures were not false because it had actual knowledge of their falsity. One who knows all the facts and provides false information, or one who makes a partial disclosure and conveys a false impression, may be liable for negligent misrepresentation. See Hagans v. Woodruff, 830 S.W.2d 732, 736 (Tex. App. 1992, no writ) (citing Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711, 715 (Tex .App. 1991, writ denied)). II. MGG’s “time of sale” argument is incorrect. A. MGG has misstated the applicable standard. Texas does not merely require disclosure of conditions present at the time of sale. It requires disclosure of “previous roof repairs’ 296 other structural repairs” and “[a]ny repairs or treatments, other than routine maintenance, made to the Property to remediate environmental hazards such as... mold”. Ex. D. The structure of MGG’s argument is legally incorrect and misstates what was required of MGG. B. MGG knew the disclosures were false. MGG certainly knew of millions of dollars in structural and roof repairs at the Maravilla. Ex. A at 38-39. It knew units had been “shocked and blocked” before new sheetrock was installed, concealing the repairs. Jd. at 57. And, in 2015, MGG’s own President had complained of moisture intrusion between unit 126 and unit 128 and referenced the presence of mold in that wall cavity. Ex. C. Plaintiff has sued MGG for statutory fraud under TEX. BUS. & COM.CODE ANN. § 27.01. That section allows direct claims against an agent who, with actual awareness, allows another’s false statement to stand and benefits from the transaction. (d) A person who (1) has actual awareness of the falsity of a representation or promise made by another person and (2) fails to disclose the falsity of the representation or promise to the person defrauded, and (3) benefits from the false representation or promise commits the fraud described in Subsection (a) of this section and is liable to the person defrauded for exemplary damages. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. Here, MGG’s owner, Cathy Bach Harrison, transmitted blank Sellers Disclosures to the Browns, later received completed Sellers Disclosures from the Brown, and then transmitted those disclosures to Mrs. Hartnett’s agent. Ex. A at 32-36. At that time, Mrs. Bach Harrison knew of the Ike damage to the interior and the moisture intrusion at the balcony; she herself had reported mold in the walls. Ex. A at 38-39, Ex. B, Ex, C. MGG can be held liable for statutory fraud and fraudulent inducement. lil. Mrs. Hartnett Relied on the Disclosures. As with the authority cited in support of MGG’s Negligent Misrepresentation argument, the authority cited here supports Plaintiff's claims, not MGG’s defenses. For example, Lim v. Lomeli? states the problem this way: 4 Lim v. Lomeli absolutely does not stand for the proposition ascribed to it: “Where the findings of a home inspection 8 In short, the Lims have failed to present more than a scintilla of evidence that Lomeli knew anything more or different than the Lims did about the condition of the home. Lim v. Lomeli, No. 04-06-00389-CV (Tex. App.—San Antonio 2007) (memo op.). The defendant there was not shown to have “more or different” knowledge. Had such been shown, the defendant would have lost. Here, Mrs. Bach Harrison clearly knew “more and different” things than an inspection could reveal: She knew of the Ike damage to the interior and the moisture intrusion at the balcony; she herself had reported mold in the walls and requested treatment for them. Ex. A at 38-39, Ex. B, Ex, C. Moreover, MGG knew that the treatment for water intrusion—shocking and blocking— had been hidden beneath the installation of new sheetrock. Ex. A at 57. Inspection cannot cure this. As Mrs. Hartnett has testified: Q And you mentioned this already, and I think I sent it as an exhibit, but you had a home inspection report done by Legacy Inspections? A. Yes, sir. Q And that was in April of 2018 when you bought it? Yes, sir. And they specifically inspected the walls that are at issue here along the balcony? I would not have had them inspect that had I known that that was an issue. That was not provided to me on the disclosure. I understand. But they inspect every wall, don't they, when you hire an inspector? They don't -- They do not pull off baseboards, and they cannot destroy property to check everything or every wall would have holes and torn up... . Ex. E at 26-27. are made available to a buyer, the buyer may not allege claims of misrepresentation and fraud against a real estate agent.” MGG motion at {18 9 Here, there is more than a scintilla of evidence MGG knew something “more and different” about the condition of the home than Mrs. Harnett or her inspector. She specifically knew it had suffered from moisture intrusion in the past, undergone significant structural repairs, been shocked. and blocked, been treated for mold and then had all those conditions covered with sheetrock. Ex. A at 38-39, Ex. B, Ex, C. MGG’s motion should be denied. PRAYER For these reasons, the Parties respectfully request that the Court deny MGG’s Motion for Summary Judgment, deny Plaintiff's Motion for Leave, strike MGG’s untimely cross claim and strike MGG’s untimely Motion for Summary Judgment. Respectfully submitted, THE SPAETH LAW FIRM {\ che) S P ath Anthony Spaeth State Bar No. 24027875 2500 E. TC Jester, Suite 278 Park One on the Bayou Houston, TX 77008 Tel. (713) 485-0973 Fax (713) 493-7633 aspaeth@spaeth-law.com ATTORNEY FOR PLAINTIFF 10 CERTIFICATE OF SERVICE The undersigned certifies that on this the 3rd day of November, 2022, the foregoing document was served via eservice and if unavailable in accordance with the Texas Rules of Civil Procedure on the following counsel of record: Cris A. Rasco Rasco Law Firm 619 8th Avenue N Texas City, Texas 77590 Douglas W. Poole McLeod, Alexander, Powel & Apffel 802 Rosenberg P.O. Box 629 Galveston, Texas 77553 Ade Y cut} Anthony Spaeth 11 Page CATHLEEN COMEAUX HARRISON - March 18, 2022 CAUSE NO. 20-CV-0228 BRENDA HARTNETT IN THE DISTRICT COURT PLAINTIFF, VS. GEORGE BROWN, INDIVIDUALLY ) AND AS TRUSTEE, PHYLLIS ) GALVESTON COUNTY, TEXAS BROWN INDIVIDUALLY AND AS ) TRUSTEE, THE GEORGE E. BROWN ) LIVING TRUST, AND MY ) GALVESTON GETAWAY, INC., ) DEFENDANTS. ) 10TH JUDICIAL DISTRICT ORAL DEPOSITION OF CATHLEEN COMEAUX HARRISON MARCH 18, 2022 ORAL DEPOSITION of CATHLEEN COMEAUX HARRISON, produced as a witness at the instance of the Plaintiff, and duly sworn, was taken in the above-styled and numbered cause on the 18th day of March, 2022, from 10:26 a.m. to 12:11 p.m., before Mary Eugenia Snow, CSR in and for the State of Texas, reported by stenotype machine, at the offices of the Rasco Law Firm, 619 8th Avenue N, Texas City, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record. COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page 2 CATHLEEN COMEAUX HARRISON - March 18, 2022 INDEX PAGE Appearances Stipulations CATHLEEN COMEAUX HARRISON Examination by Mr. Spaeth Examination by Mr. Poole 60 Re-Examination by Mr. Spaeth 70 Re-Examination by Mr. Poole 75 Signature and Changes 78 Reporter's Certificate 80 10 EXHIBITS 11 NO. DESCRIPTION PAGE 12 Exhibit TREC Residential Condominium Contract 25 13 Exhibit TREC Residential Leasing and Property Management Agreement 29 14 Exhibit Seller's Disclosure Notice 30 15 Exhibit Email, lst email, Gage to My 16 Galveston Getaway, 4/16/18 30 17 Exhibit Email, lst email, Gage to My Galveston Getaway, 4/20/18 30 18 Exhibit Email, lst email, My Galveston Getaway 19 to Gage 4/19/18 33 20 Exhibit Email, lst email, Gage to My Galveston Getaway, 4/16/18 34 21 Exhibit Email, lst email, Rasco to Moore, 22 4/3/12 51 23 Exhibit IDGC/RA Group Invoice 69 24 Exhibit 10 SeaHouse Construction Company, "Exhibit A," Bates No. BROWN 000014 69 25 COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page 3 CATHLEEN COMEAUX HARRISON - March 18, 2022 APPEARANCES FOR THE PLAINTIFF: Mr. Anthony Spaeth THE SPAETH LAW FIRM, PLLC 2500 East T.C. Jester, Suite 278 Houston, Texas 77008 Tel: (713) 485-0973 Email: aspaeth@spaeth-law.com FOR THE DEFENDANT MY GALVESTON GETAWAY, INC.: Mr. Cris A. Rasco RASCO LAW FIRM 619 8th Avenue N 10 Texas City, Texas 77590 Tel: (409) 943-5566 11 Email: cris@rascolaw.com 12 FOR THE DEFENDANTS GEORGE BROWN, INDIVIDUALLY AND AS 13 TRUSTEE, PHYLLIS BROWN INDIVIDUALLY AND AS TRUSTEE, and THE GEORGE E. BROWN LIVING TRUST: 14 15 Mr. Douglas W. Poole (Via telephone) McLEOD, ALEXANDER, POWEL & APFFEL, PC 16 802 Rosenberg Galveston, Texas 77553 17 Tel: (409) 877-7645 Email: dwpoole@mapalaw.com 18 19 ALSO PRESENT: Ms. Brenda Hartnett 20 21 22 23 24 25 COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page CATHLEEN COMEAUX HARRISON - March 18, 2022 THE REPORTER: Did you want to have the witness read and sign the deposition transcript? MR. RASCO: Yes. THE WITNESS: Yes. CATHLEEN COMEAUX HARRISON, having been first duly sworn, testified as follows: EXAMINATION BY MR. SPAETH: Q Good morning, Mrs. Harrison. My name is 10 Anthony Spaeth. I represent Brenda Hartnett in this 11 litigation. How are you? 12 A Fabulous. How are you today? 13 Q I'm well. 14 You've been deposed several times in the 15 past; is that right? 16 Correct. 17 What names have you been deposed under in the 18 past? 19 Cathleen Comeaux Bach. 20 And could you spell Comeaux for the court 21 reporter, please. 22 A C-o-m-e-a-u-x, and Cathleen is with a "Cc," not 23 a "KOM 24 Q Okay. Any other names that you've been 25 deposed under in the past? COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page CATHLEEN COMEAUX HARRISON - March 18, 2022 A I left there in August of 2011, I believe. Q So you had been the manager for the Maravilla for the 18 months prior to August of 2011? A Approximately. I can't remember the exact dates. Q How did you come to be the manager of the Maravilla? A I was asked by the board to serve in that capacity. 10 Q Who with the board asked you to serve in that 11 capacity? 12 A Lloyd Rinderer, Lyssa Graham, and John Kubis. 13 Q At the time that you became the manager of the 14 Maravilla, did you own already at that time a unit in 15 the Maravilla? 16 A Yes 17 Q How many onits did you une -- did you own? 18 A How many onits did I une? 19 Q How many -- I'm sorry. Strike that. You're 20 right. 21 How many units did you own? 22 A I think at that time I owned two. I can't 23 remember when I bought the second one. 24 Q When did you purchase your first unit in the 25 Maravilla? COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page CATHLEEN COMEAUX HARRISON - March 18, 2022 A 2004. Q Did your father already own units in the Maravilla at the time? No. When did your father first purchase his first unit? The attorney just dropped off the phone, if you care. Q I do. I appreciate that. 10 MR. SPAETH: Let's go off the record 11 briefly and see if we can't solve that. 12 (Recess from 10:32 a.m. to 10:33 a.m.) 13 Q So going back in time a moment, when did your 14 father first purchase a unit in the Maravilla? 15 A I don't remember. 16 Q Did he purchase that unit through you as a 17 realtor? 18 A The first one, he did not; the second one, he 19 did. 20 Q Prior to becoming manager of the Maravilla, 21 what had you done for a living? 22 A For a few years, I was a stay-at-home mom; and 23 before that, I worked in corporate relocation. 24 Q What's your educational background? How far 25 did you go in school? COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page 20 CATHLEEN COMEAUX HARRISON - March 18, 2022 A Yes. Q Did you review the Browns! disclosures before providing them to the buyer? A I don't recall whether I did or not. Q In addition to serving as property manager for the Maravilla, did you also serve on its board? A I did. Q When did you serve on the board of the Maravilla? 10 A I cannot recall the dates. 11 Q Do you recall the last date that you served on 12 the board? 13 A Probably the same date that is the last date I 14 was employed there. 15 Q So up until -- 16 A I resigned from both at the same time. 17 Q And I think earlier you said you thought that 18 that date was August of 2011. Is that right? 19 A I think that's correct. 20 Q Why did you resign from the board of the 21 Maravilla? 22 A To pursue my own business. 23 Q Were you -- were you elected onto the board? 24 A I was originally appointed a long time ago and 25 later elected. COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page 28 CATHLEEN COMEAUX HARRISON - March 18, 2022 the disclosures required by Section 5.008 of the Texas Property Code. Is that right? A Correct. Q What were the consequences, under Section 7.B. of the property -- of the sales agreement if the notice was not provided? A "If Buyer does not receive the Notice, Buyer may terminate this contract at any time prior to the closing and the earnest money will be refunded to 10 Buyer." 11 Q Okay. So if the disclosure notice was not 12 provided to Mrs. Hartnett, she could back out of this 13 contract. Is that true? 14 A That's what it says. 15 Q How were you to be paid, as the real estate 16 agent for the Browns, under this contract? 17 A At the time of closing, I would be paid a 18 commission. 19 Q So your company was going to profit off of the 20 sale of this unit. Is that true? 21 A That's correct. 22 Q What percentage of the sales price were you to 23 receive? 24 A I don't recall. I would have to see my 25 listing agreement with them. COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page 30 CATHLEEN COMEAUX HARRISON - March 18, 2022 Q How did you meet the Browns? A They were owners of another unit at the Maravilla. Q Were you managing that unit for them? A I was not. Q So I ask again, how did you become the manager for the Browns? How did you meet them? A I met them at owners! meetings. Q And then represented yourself as a property 10 manager and got their business? 11 A Correct. 12 (Harrison Exhibit No. 3 marked) 13 Q I'm handing you now what I've marked as 14 Exhibit No. 3, the Texas seller's disclosure notice. Is 15 that the disclosure notice that was made in conjunction 16 with the sale of the Browns' property to Mrs. Hartnett? 17 A It appears to be, yes. 18 Q Okay. Now, when did you receive -- do you 19 know what date you received that seller's disclosure 20 notice from the Browns? 21 A I do not. 22 (Harrison Exhibit Nos. 4 and 5 marked) 23 Q Mrs. Harrison, I'm handing you now what I've 24 marked as Exhibit 5 to your deposition. Can you take a 25 look at that, and I'll discuss it with you briefly. COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page 31 CATHLEEN COMEAUX HARRISON - March 18, 2022 A Okay. Q What is Exhibit No. 5? A It is an email from Eric Gage to myself indicating they did not have a seller's disclosure completed, and it's dated April 20th. Q Okay. Eric Gage was the representative for Mrs. Hartnett in the transaction with the Browns. Is that true? A Yes. 10 Q Okay. So Exhibit No. 5 is an email requesting 11 the disclosures after the contract with the Browns had 12 been signed. Is that true? 13 A What's the date of the contract? The contract 14 is not dated. 15 Q I'll hand you what I've got. That -- and I 16 apologize. That version of the contract may not be -- 17 may not be dated. Here's what I've got as Exhibit 18 No. 4, if you could take a look at that and I'll ask you 19 some questions about it. 20 A This is an email from Eric Gage to myself 21 dated April 16th, indicating that there is a contract 22 attached. The attachments only show as "Scan" and 23 "Scan," so -- so I would assume that's what is there, 24 but it doesn't state that. 25 Q All right. So we've got a contract being COURT REPORTERS CLEARINGHOUSE (713) 626-2629 Page 32 CATHLEEN COMEAUX HARRISON - March 18, 2022 negotiated in the -- in the month of April, in any case. Is that right? A Apparently, yes. Q You are representing the seller and Mr. Gage is representing the buyer. Is that right? A That is correct. Q And we have, in Exhibit No. 5, a request that the