Preview
FILED
8/12/2022 11:42 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
Cause No. DC-22-02323
GENE McCUTCHlN, individually and on §
behalf of the JOHN MAC JOINT §
VENTURE, a Texas §
Partnership § IN THE DISTRICT COURT
PLAINTIFFS, §
E
v. § 191$ JUDICIAL DISTRICT
§
§
KEVIN MILLER, §
JOHN W. PETROS, and §
JOHN MAC JOINT VENTURE CO §
DEFENDANTS. § DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO JOHN PETROS’S MOTION TO DISSOLVE WRIT OF
SEQUESTRATION AND MOTION TO MODIFY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Plaintiffs, Gene McCutchin individually and on behalf of the John Mac
Joint Venture, a Texas PaItnership, by and through his attorneys, and files this Response to John
Petros ’s Motion to Dissolve Writ of Sequestration and Motion to Modifiz, and would respectfully
show the Court as follows:
MOTION HEARING UNTIMELY
l. As a threshold issue, the hearing on this Motion is untimely. The Motion to Dissolve was
filed on July 28, 2022, and the hearing on the Motion is scheduled for August 24, 2022.
Per Tex.CiV.Prac. & Rem. Code § 62.042, the Motion must be heard within 10 days of its
filing unless the parties agree to an extension. No such extension was requested by Petros,
and McCutchin did not agree. For that reason alone, Defendant’s Motion should be denied.
AUTHORITY AND ARGUMENT REGARDING MOTION TO DISSOLVE
. In a sequestration action, the party opposing a writ of sequestration may file a motion to
dissolve, and the party that secured the writ must prove the facts alleged as the grounds for
the issuance of the writ. Tex.CiV.Prac. & Rem. Code § 62.043.
. As described in the original Application for a Writ of Sequestration, filed April l3, 2022,
the writ should be issued because a reasonable conclusion can be drawn that there is
immediate danger that the defendant or the party in possession of the property will conceal,
dispose of, ill-treat, waste, or destroy the property. Tex.CiV.Prac. & Rem. Code §
62.0010).
. As alleged in the Amended Petition and application for temporary injunction that was
granted by this Court, Mr. McCutchin’s property rights stem from his 1981 purchase of the
Property as partner in the John Mac Joint Venture with Defendant Kevin Miller’s deceased
father Delmo Johnson, Jr..
. Mr. Petros has repeatedly falsely claimed that he is the sole owner of the property. He
claims that Mr. McCutchin’s property interest was destroyed by the probating of the estate
of Delmo Johnson, Jr. in 2015, but has produced no competent evidence that would indicate
that this is true. Thereafter, Petros tricked the unsophisticated Kevin Miller into becoming
the executor of the Delmo Johnson, Jr. estate, and deeding away Mr. Miller’s legitimate
right to a portion of the property to Mr. Petros for no consideration. Despite paying nothing
for the property, having clear knowledge of McCutchin’s claim, and the Court’s granting
of Plaintiff’s No-Evidence Motion for Summary Judgment as to this defense, Mr. Petros
continues to falsely allege that he is a bona-fide purchaser for value of the property at issue.
6. In July of 2021, Mr. Petros sent a letter to Plaintiff McCutchin offering him $550,000.00
for “all personal and real property owned by you, Mr. Gene McCutchin at 15792 Dooley,
Addison, TX 75001 Exhibit A. There are multiple other pieces of evidence available that
indicate that Mr. Petros and Mr. Miller are engaged in a conspiracy to commit fraud against
Plaintiff McCutchin, but this single letter completely eviscerates Petros’s claim that
McCutchin’s rights were extinguished in 2015 and that he had no knowledge of
McCutchin’s claim.
Accordingly, there can be no reasonable dispute that McCutchin has rights to the property.
In his Motion to Dissolve and other recent pleadings, Mr. Petros clearly admits his intent
to dispose of 0r destroy Mr. McCutchin’s property rights. Mr. Petros admits that he is
currently trying to sell the property that makes the basis of this suit. Please review, from
page one of his Motion:
recorded. It is only speculation by McCutchin and Amos-Hunter’s that Petros would destroy any
part of the Property. Petros has already informed the Court that Capital Title is completing the
instruments and documents to issue the title policy to the buyer at the closing which is now
delayed by this action. Capital Iitle Company does not and will not complete the pending sale
wh' leis an i valid.
The undersigned counsel is not “speculating” that Mr. Petros will destroy Mr. McCutchin’s
property rights if he sells the property, it is a certainty.
10. Mr. Petros has also filed a Motion to Expunge Lis Pendens and has said Motion set for
hearing before this Court on September 13, 2022. In the Motion to Expunge Lis Pendens,
Mr. Petros also clearly admits his intent to sell the property at issue to a third party.
11. As a brief reminder, Mr. Petros has failed to respond to written discovery, been held in
contempt for prior violations of the temporary injunction, is scheduled for another show
cause hearing regarding subsequent Violations of the temporary injunction, and has stated
repeatedly before the court orally and in writing that he is intending to sell the property that
is the subject of claims of fraud and quiet title, and is protected by a temporary injunction
and [is pendens.
12. In fact, the very reason for the application for the writ of sequestration in the first place
was to prevent any such a sale in Violation of the TI and the [is pendens.
13. A reasonable conclusion can be drawn that there is immediate danger that the defendant or
the party in possession of the property will dispose of the property. Tex.CiV.Prac. & Rem.
Code § 62.001(1). He has stated in writing in the Motion to Dissolve and the Motion to
Expunge Lis Pendens that he will do so if the Court allows it.
14. The Court should not allow it. The Motion to Dissolve should be denied.
MOTION T0 MODIFY
15. While Plaintiffs strongly disagree with the relief requested in Mr. Petros’s Motion to
Dissolve, Plaintiffs do agree with Mr. Petros that some of the required statutory language
was not included in the original Writ of Sequestration executed by this Honorable Court.
Accordingly, Plaintiffs respectfully move the Court to modify the writ.
16. As stated by Tex.CiV.Prac. & Rem. Code § 62.023, a writ of sequestration should
prominently display the following language:
“YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A
REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE
PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT.”
17. Tex.R.CiV.P. 696 indicates that the writ should specify the amount of a bond required to
be posted by Plaintiff, which “shall adequately compensate defendant in the event plaintiff
fails to prosecute his suit.” Plaintiff would suggest that a minimal additional bond is
necessary as Plaintiff is zealously prosecuting this suit and anticipates resolving the suit
Via dispositive motion or trial in the next six months. Plaintiff would suggest a minimal
cash bond of $100.00.
18. Tex.R.CiV.P. 696 further indicates that the writ should include an amount for defendant to
replevy the property which should be “in an amount equivalent to the value of the property
sequestered or to the amount of plaintiffs claim.”
19. On July 27, 2022, on the record in open court, Mr. Petros suggested that the property is
valued $5,000,000.00. Plaintiff believes that the property is likely worth approximately
half that amount ($2,500,000.00). Therefore, considering that Plaintiff is the original owner
of 50% of the partnership interest in the John Mac Joint Venture, Plaintiff suggests that the
appropriate replevy bond be $1,250,000.00.
20. Accordingly, Plaintiff respectfully requests that the Court grant this Motion to Modz'fiz and
enter the proposed modified Writ of Sequestration filed contemporaneously with this
Motion.
Respectfully submitted,
WARANCH & NUNN, PLLC
By: /s/ Amos S. Waranch
AMOS S. WARANCH
State Bar No. 24090457
5720 LBJ Freeway, Suite 550
Dallas, Texas 75240
T: (972) 863-9592
F: (972) 767-0338
awaranch@waranchnunn.com
CERTIFICATE OF SERVICE
I, Amos S. Waranch, do hereby certify that on August 12, 2022, a true and correct copy of the
foregoing motion was served upon all parties of record as follows:
VIA EMAIL TO: kmiller649@aol.com; seagaze260@hotmail.com;
seagaze260@yahoo.com
Mr. Kevin Miller
Mr. John Petros
VIA FIRST CLASS MAIL TO:
Mr. Kevin Miller
15790 Dooley Road
Addison, Texas 75001
Mr. John Petros
15790 Dooley Road
Addison, Texas 75001
/s/ Amos S. Waranch
AMOS S. WARAN CH
JOHN MAC JOINT VENTURE CO.
July 15, 2021
Gene McCutchin
14833 Midway Road, 200 E ® E: [I w [E
Addison ’ Texas 75001 -
JUL 1% 2021
Letter of Intent k
By
Dear Mr. McCutchin:
By this Letter of Intent, John Mac Joint Venture Co., offers to purchase the three Hangers
and office space owned by you under the following terms and conditions.
Hangar One: $150,000.00 cash as full price at closing and transfer of ownership Hangar 1
i w_ragdr its officg spgfe onflor bsfqie August 5,7 2021.
Hangar Five: $200,000.00 as full price with $100,000.00 cash at closing and possession on
or before December 5, 2021 and a promissory note in the amount of
$100,000.00 paid in
four equal $25,000.00 payments the first such $26,000.00 payment shall be due and
payable three months after closing and possession and a like thereafter until paid in full.
Hangar Six: $200,000.00 as full price with $100,000.00 cash at closing and possession on
or before March 5, 2022 and a promissory note in the amount of
$100,000.00 paid in four
equal $25,000.00 payments the first such $26,000.00 payment shall be due and payable
three months after closing and possession and a like thereafter until paid in full.
John Mac Joint Venture Co., offer under this Letter of Intent is to pay the total
price of
$550,000.00 for all personal and real property owned by you, Mr. Gene McCutchin at 15792
Dooley, Addison, Texas 75001.
This Letter of Intent is in full force and effect from the date first stated above and Mr.
McCutchin's signed acceptance below and returned to John Mac Joint Venture Co., will
open
escrow to complete this purchase as stated above.
This offer to purchase expires and is withdrawn at 2:00 PM CST July 30, 2021 and carries
no further force or effect.
John Joint Venture Co.
i rector
Acceptance
I, Gene McCutchin, accepts the offer to purchase and agrees to sell the property located at
15790 Dooley Road, Addison, Texas 75001 under the terms and condition abovementioned.
Gene McCutchin
Carri-p964? #7” ‘3‘ 333$ 0003 (-3936; 6-110
15790 Dooley Road, Suite 107, Addison, Texas 75001 *
seagaze260@yahoo.com
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.
Amos Waranch on behalf of Amos Waranch
Bar No. 24090457
awaranch@waranchnunn.com
Envelope ID: 67227155
Status as of 8/12/2022 11:50 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Amos SWaranch awaranch@waranchnunn.com 8/12/2022 11:42:39 AM SENT
W&N Info info@waranchnunn.com 8/12/2022 11:42:39 AM SENT
Collen Meyer CollenRay@outlook.com 8/12/2022 11:42:39 AM SENT
Philip Cochran pcochran@waranchnunn.com 8/12/2022 11:42:39 AM SENT
Ashley Swanson ASWANSON@WARANCHNUNN.COM 8/12/2022 11:42:39 AM SENT
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.
Amos Waranch on behalf of Amos Waranch
Bar No. 24090457
awaranch@waranchnunn.com
Envelope ID: 67227155
Status as of 8/12/2022 11:50 AM CST
Associated Case Party: GENE MCCUTCHIN
Name BarNumber Email TimestampSubmitted Status
Ashley Swanson aswanson@waranchnunn.com 8/12/2022 11:42:39 AM SENT
Preview
FILED 8/12/2022 11:42 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY Cause No. DC-22-02323 GENE McCUTCHlN, individually and on § behalf of the JOHN MAC JOINT § VENTURE, a Texas § Partnership § IN THE DISTRICT COURT PLAINTIFFS, § E v. § 191$ JUDICIAL DISTRICT § § KEVIN MILLER, § JOHN W. PETROS, and § JOHN MAC JOINT VENTURE CO § DEFENDANTS. § DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO JOHN PETROS’S MOTION TO DISSOLVE WRIT OF SEQUESTRATION AND MOTION TO MODIFY TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiffs, Gene McCutchin individually and on behalf of the John Mac Joint Venture, a Texas PaItnership, by and through his attorneys, and files this Response to John Petros ’s Motion to Dissolve Writ of Sequestration and Motion to Modifiz, and would respectfully show the Court as follows: MOTION HEARING UNTIMELY l. As a threshold issue, the hearing on this Motion is untimely. The Motion to Dissolve was filed on July 28, 2022, and the hearing on the Motion is scheduled for August 24, 2022. Per Tex.CiV.Prac. & Rem. Code § 62.042, the Motion must be heard within 10 days of its filing unless the parties agree to an extension. No such extension was requested by Petros, and McCutchin did not agree. For that reason alone, Defendant’s Motion should be denied. AUTHORITY AND ARGUMENT REGARDING MOTION TO DISSOLVE . In a sequestration action, the party opposing a writ of sequestration may file a motion to dissolve, and the party that secured the writ must prove the facts alleged as the grounds for the issuance of the writ. Tex.CiV.Prac. & Rem. Code § 62.043. . As described in the original Application for a Writ of Sequestration, filed April l3, 2022, the writ should be issued because a reasonable conclusion can be drawn that there is immediate danger that the defendant or the party in possession of the property will conceal, dispose of, ill-treat, waste, or destroy the property. Tex.CiV.Prac. & Rem. Code § 62.0010). . As alleged in the Amended Petition and application for temporary injunction that was granted by this Court, Mr. McCutchin’s property rights stem from his 1981 purchase of the Property as partner in the John Mac Joint Venture with Defendant Kevin Miller’s deceased father Delmo Johnson, Jr.. . Mr. Petros has repeatedly falsely claimed that he is the sole owner of the property. He claims that Mr. McCutchin’s property interest was destroyed by the probating of the estate of Delmo Johnson, Jr. in 2015, but has produced no competent evidence that would indicate that this is true. Thereafter, Petros tricked the unsophisticated Kevin Miller into becoming the executor of the Delmo Johnson, Jr. estate, and deeding away Mr. Miller’s legitimate right to a portion of the property to Mr. Petros for no consideration. Despite paying nothing for the property, having clear knowledge of McCutchin’s claim, and the Court’s granting of Plaintiff’s No-Evidence Motion for Summary Judgment as to this defense, Mr. Petros continues to falsely allege that he is a bona-fide purchaser for value of the property at issue. 6. In July of 2021, Mr. Petros sent a letter to Plaintiff McCutchin offering him $550,000.00 for “all personal and real property owned by you, Mr. Gene McCutchin at 15792 Dooley, Addison, TX 75001 Exhibit A. There are multiple other pieces of evidence available that indicate that Mr. Petros and Mr. Miller are engaged in a conspiracy to commit fraud against Plaintiff McCutchin, but this single letter completely eviscerates Petros’s claim that McCutchin’s rights were extinguished in 2015 and that he had no knowledge of McCutchin’s claim. Accordingly, there can be no reasonable dispute that McCutchin has rights to the property. In his Motion to Dissolve and other recent pleadings, Mr. Petros clearly admits his intent to dispose of 0r destroy Mr. McCutchin’s property rights. Mr. Petros admits that he is currently trying to sell the property that makes the basis of this suit. Please review, from page one of his Motion: recorded. It is only speculation by McCutchin and Amos-Hunter’s that Petros would destroy any part of the Property. Petros has already informed the Court that Capital Title is completing the instruments and documents to issue the title policy to the buyer at the closing which is now delayed by this action. Capital Iitle Company does not and will not complete the pending sale wh' leis an i valid. The undersigned counsel is not “speculating” that Mr. Petros will destroy Mr. McCutchin’s property rights if he sells the property, it is a certainty. 10. Mr. Petros has also filed a Motion to Expunge Lis Pendens and has said Motion set for hearing before this Court on September 13, 2022. In the Motion to Expunge Lis Pendens, Mr. Petros also clearly admits his intent to sell the property at issue to a third party. 11. As a brief reminder, Mr. Petros has failed to respond to written discovery, been held in contempt for prior violations of the temporary injunction, is scheduled for another show cause hearing regarding subsequent Violations of the temporary injunction, and has stated repeatedly before the court orally and in writing that he is intending to sell the property that is the subject of claims of fraud and quiet title, and is protected by a temporary injunction and [is pendens. 12. In fact, the very reason for the application for the writ of sequestration in the first place was to prevent any such a sale in Violation of the TI and the [is pendens. 13. A reasonable conclusion can be drawn that there is immediate danger that the defendant or the party in possession of the property will dispose of the property. Tex.CiV.Prac. & Rem. Code § 62.001(1). He has stated in writing in the Motion to Dissolve and the Motion to Expunge Lis Pendens that he will do so if the Court allows it. 14. The Court should not allow it. The Motion to Dissolve should be denied. MOTION T0 MODIFY 15. While Plaintiffs strongly disagree with the relief requested in Mr. Petros’s Motion to Dissolve, Plaintiffs do agree with Mr. Petros that some of the required statutory language was not included in the original Writ of Sequestration executed by this Honorable Court. Accordingly, Plaintiffs respectfully move the Court to modify the writ. 16. As stated by Tex.CiV.Prac. & Rem. Code § 62.023, a writ of sequestration should prominently display the following language: “YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT.” 17. Tex.R.CiV.P. 696 indicates that the writ should specify the amount of a bond required to be posted by Plaintiff, which “shall adequately compensate defendant in the event plaintiff fails to prosecute his suit.” Plaintiff would suggest that a minimal additional bond is necessary as Plaintiff is zealously prosecuting this suit and anticipates resolving the suit Via dispositive motion or trial in the next six months. Plaintiff would suggest a minimal cash bond of $100.00. 18. Tex.R.CiV.P. 696 further indicates that the writ should include an amount for defendant to replevy the property which should be “in an amount equivalent to the value of the property sequestered or to the amount of plaintiffs claim.” 19. On July 27, 2022, on the record in open court, Mr. Petros suggested that the property is valued $5,000,000.00. Plaintiff believes that the property is likely worth approximately half that amount ($2,500,000.00). Therefore, considering that Plaintiff is the original owner of 50% of the partnership interest in the John Mac Joint Venture, Plaintiff suggests that the appropriate replevy bond be $1,250,000.00. 20. Accordingly, Plaintiff respectfully requests that the Court grant this Motion to Modz'fiz and enter the proposed modified Writ of Sequestration filed contemporaneously with this Motion. Respectfully submitted, WARANCH & NUNN, PLLC By: /s/ Amos S. Waranch AMOS S. WARANCH State Bar No. 24090457 5720 LBJ Freeway, Suite 550 Dallas, Texas 75240 T: (972) 863-9592 F: (972) 767-0338 awaranch@waranchnunn.com CERTIFICATE OF SERVICE I, Amos S. Waranch, do hereby certify that on August 12, 2022, a true and correct copy of the foregoing motion was served upon all parties of record as follows: VIA EMAIL TO: kmiller649@aol.com; seagaze260@hotmail.com; seagaze260@yahoo.com Mr. Kevin Miller Mr. John Petros VIA FIRST CLASS MAIL TO: Mr. Kevin Miller 15790 Dooley Road Addison, Texas 75001 Mr. John Petros 15790 Dooley Road Addison, Texas 75001 /s/ Amos S. Waranch AMOS S. WARAN CH JOHN MAC JOINT VENTURE CO. July 15, 2021 Gene McCutchin 14833 Midway Road, 200 E ® E: [I w [E Addison ’ Texas 75001 - JUL 1% 2021 Letter of Intent k By Dear Mr. McCutchin: By this Letter of Intent, John Mac Joint Venture Co., offers to purchase the three Hangers and office space owned by you under the following terms and conditions. Hangar One: $150,000.00 cash as full price at closing and transfer of ownership Hangar 1 i w_ragdr its officg spgfe onflor bsfqie August 5,7 2021. Hangar Five: $200,000.00 as full price with $100,000.00 cash at closing and possession on or before December 5, 2021 and a promissory note in the amount of $100,000.00 paid in four equal $25,000.00 payments the first such $26,000.00 payment shall be due and payable three months after closing and possession and a like thereafter until paid in full. Hangar Six: $200,000.00 as full price with $100,000.00 cash at closing and possession on or before March 5, 2022 and a promissory note in the amount of $100,000.00 paid in four equal $25,000.00 payments the first such $26,000.00 payment shall be due and payable three months after closing and possession and a like thereafter until paid in full. John Mac Joint Venture Co., offer under this Letter of Intent is to pay the total price of $550,000.00 for all personal and real property owned by you, Mr. Gene McCutchin at 15792 Dooley, Addison, Texas 75001. This Letter of Intent is in full force and effect from the date first stated above and Mr. McCutchin's signed acceptance below and returned to John Mac Joint Venture Co., will open escrow to complete this purchase as stated above. This offer to purchase expires and is withdrawn at 2:00 PM CST July 30, 2021 and carries no further force or effect. John Joint Venture Co. i rector Acceptance I, Gene McCutchin, accepts the offer to purchase and agrees to sell the property located at 15790 Dooley Road, Addison, Texas 75001 under the terms and condition abovementioned. Gene McCutchin Carri-p964? #7” ‘3‘ 333$ 0003 (-3936; 6-110 15790 Dooley Road, Suite 107, Addison, Texas 75001 * seagaze260@yahoo.com 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. Amos Waranch on behalf of Amos Waranch Bar No. 24090457 awaranch@waranchnunn.com Envelope ID: 67227155 Status as of 8/12/2022 11:50 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Amos SWaranch awaranch@waranchnunn.com 8/12/2022 11:42:39 AM SENT W&N Info info@waranchnunn.com 8/12/2022 11:42:39 AM SENT Collen Meyer CollenRay@outlook.com 8/12/2022 11:42:39 AM SENT Philip Cochran pcochran@waranchnunn.com 8/12/2022 11:42:39 AM SENT Ashley Swanson ASWANSON@WARANCHNUNN.COM 8/12/2022 11:42:39 AM SENT 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. Amos Waranch on behalf of Amos Waranch Bar No. 24090457 awaranch@waranchnunn.com Envelope ID: 67227155 Status as of 8/12/2022 11:50 AM CST Associated Case Party: GENE MCCUTCHIN Name BarNumber Email TimestampSubmitted Status Ashley Swanson aswanson@waranchnunn.com 8/12/2022 11:42:39 AM SENT