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CAUSE NO.
ERIC D. BURNS, IN THE DISTRICT COURT
Plaintiff,
vs. 268th JUDICIAL DISTRICT
EMD SUPPLY INC., ET AL, AND
JAMES A. WHITE, IN HIS OFFICIAL
CAPACITY AS CEO OF EMD
SUPPLY ET AL.
Defendant. FORT BEND COUNTY, TEXAS
DEFENDAN ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant EMD SUPPLY INC. and JAMES A. WHITE Defendants file this Original
Answer Plaintiff’s Original Petition and respectfully show the ourt as follows
GENERAL DENIAL
As authorized by Texas Rule of Civil Procedure Defendants generally den the
allegations contained in Plaintiff’s Original Petition, as the same may hereafter be amended or
supplemented, and demand that Plaintiff strictly prove each claim by a preponderance of the credible
evidence or such higher evidentiary standard, as required by the Constitution and the laws of the
State of Texas.
SPECIFIC DENIAL
Pursuant to Tex. R. Civ. P. 54, Defendants den that all conditions precedent to Plaintiff’s
claim have been performed or have occurred as alleged in Plaintiff’s Original Petition, and in
particular Defendants specifically den that Plaintiff’s Home Communicator concept was ever in a
position to be developed.
AFFIRMATIVE DEFENSES AND OTHER DEFENSES
Defendants affirmatively plead that Plaintiff has failed to state a claim for which relief may
be granted.
Defendants affirmatively plead that James A. White is not a party to the alleged contract
Defendants affirmatively plead that no contract ever existed between Defendants and
Plaintiff that could have been breached.
Defendants affirmatively plead that the written instrument upon which Plaintiff’s pleading is
founded is without consideration
Defendants affirmatively plead that this case has already been litigated and is barred by res
judicata.
VERIFIED DENIAL
As authorized by Tex. R. Civ. P. 93(2), Defendants den that James A. White is liable in the
capacity in which he has been sued.
As authorized by Tex. R. Civ. P. 93(9), Defendants further allege that the written instrument
upon which Plaintiff’s pleading is founded is without consideration in that White’s alleged promise
to “build a functional prototype or financially fund a working prototype” of Plaintiff’s Home
Communicator concept is not supported by consideration because the alleged contract did not
impose any obligations whatsoever on the Plaintiff.
RESERVATION OF RIGHT TO AMEND
Defendants reserv the right to amend this Original Answer and to allege such facts and
affirmative defenses as may be developed during the progress of this lawsuit.
See Memorandum Opinion filed June 28, 2022 in the Fourteenth Court of Appeals, Cause No. 14 CV,
Eric D. Burns v. James A. White (On Appeal from the 268 District Court, Fort Bend County, Texas, Trial Court
Cause No. 19 DCV 268373), attached as Exhibit “A” hereto.
Defendants attach (as Exhibit “B”) and incorporate herein, James A. White’s Amended
Answer and Verification from Eric D. Burns v. James A. White, Cause No. 19 DCV 268373, in the
Judicial District Court, Fort Bend County, Texas.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray that Plaintiff take nothing in
this suit against him and that Defendants have and receive such other and further relief, both general
and special, at law and in equity, to which may show themselves justly entitled.
Respectfully submitted,
ZABEL FREEMA
By:__/s/ James A. Freeman
Thomas A. Zabel, SBN 22235500
tzabel@zflawfirm.com
James A. Freeman, SBN 00796580
jfreeman@zflawfirm.com
Griffin C. Rice, SBN 24116961
grice@zflawfirm.com
Walter T. Williams, SBN
wwilliams@zflawfirm.com
1135 Heights Blvd.
Houston, Texas 77008
9114 (Fax)
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that on the day of August, 2022, a true and correct copy of the
foregoing instrument was served on the following in the manner indicated below.
Via facsimile and U.S. Mail, return receipt requested
Eric D. Burns
391 Hwy 90E
Sealy, Texas 77474
facsimile
/s/ Griffin C. Rice
Griffin C. Rice
Affirmed and Memorandum Opinion filed June , 2022.
In The
Fourteenth Court of Appeals
NO. 00646
ERIC D. BURNS, Appellant
JAMES A. WHITE, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 268373
MEMORANDUM OPINION
Pro se appellant Eric Burns filed suit against appellee James White for
breach of contract. In three issue on appeal, Burns argues that: ( the trial court
erred by being bias[ed] against the law, (2) he received ineff tive assistance of
counsel, and (3) the trial court erred in granting White s motion to dismiss. We
affirm.
ACKGROUND
November 8, 2019, Burns filed suit against White. In his petition, Burns
alleged that he and White entered into a letter of ntent signed by White in
February 2017. The letter of intent in its entirety appears as follows
urns alle ed that fully performed his obligations under the contract, but that
White failed to build or fund a prototype, per the agree nt. White filed a ge ral
denial and alleg several affirmatives defenses, namely that White is not a party
to the contract in his individual capacity, no contract existed between White and
Burns that could have been breached, and the letter of tent lacks consideration.
ecause the parties are familiar with the facts of the case we set forth the facts of the
case necessary to advise the parties of the cour s decision and basic reasons for it in light
sues raised. See Tex. R. App. P.
December 201 White filed a motion to dismiss the case pursuant to ule
91a of the Texas Rules of Civil Procedure. In his motion, White asserted that
Burns s breach of contract claim has no basis in law or ct for three reasons: (1)
the letter of intent lac essential terms such as timing of performance d price
to be paid that would be expected to be included in a contract for development
) the letter of intent is indefinite, which indicates that ther was no meeting of the
minds; and (3) only Burns an EMD Supply, Inc are parties to the letter of
intent, not White in his individual capacity.
The motion to dismiss was heard in January 2020. The trial court denied the
motion advised Burns to tain an attorney:
Trial Cour Let me stop you. Mr. Burns?
Burns Yes, sir.
[Trial Court]: Why are you here without an attorney?
Burns I was not able to afford one at the time of these
proceedings.
[Trial Court]: Mr. Burn I think you need an attorney. Your
motion to dism s is denied. Mr. Burns
Burns Yes, sir.
[Trial Court]: this case is going to go forward. If you don
come in here with an attorney
Burns Yes, sir.
[Trial Court]: those two guys are going destroy you. All
right?
Bur Yes, sir.
In March 2020, Jamal Hicks appeared as Burns s attorney. On July 1 2020,
Burns filed a letter with the trial court that inform Hicks I have filed several
motions listing you as my attor y of record tter also instructed icks to
research the facts of this case complain of Hicks s representation of
rns. On July 22, 2020, Hicks filed motion to withdraw, alleging that Burns
filed three unauthoriz pleadings with th trial cour
[Burns] never spo with [Hicks] about the contents or filing of the
three aforementioned motions. [Burns] rafted and filed all three
motions by himself, then proceeded to forge [Hicks name, law firm,
and State Bar Nu er in the signatur block of all three motions.
ks] did not authorize such actions, as [Hicks signature block
was added to all three motions without [Hicks knowledge or
approval. urns actions were fraudulent, unauthorized, and
unethical, t refore putting [Hi ks] in an unprecedented positio as an
officer of the Court
On August 19, 2020, before the trial court ruled on the motion to withdraw,
White filed an amended motion to dismiss, asserting the same grounds for
dismissal as the original moti Augu 24, 2020, the trial court grante
Hicks s motion to withdraw. The trial court heard the amended motion to dismiss
on September 16, 2020. The next day, the trial court granted the motion to dismi
The day after ns filed timely appeal.
In October 2020, White filed a motion to modify the final judgment to
include an award of attorney s fees. In his motion, White claimed that he did not
originally include attorn s fees in his proposed order in the h es of finally
concluding this dispute but now sought attorney s fees cause of Burn
continued pursuit of the case and the expenses at would be incurred if Burns filed
appeal. The trial court gr ted the motion to modify the judgment, awarding
White $5,816. in attorn s fees and costs only with respect to Burns breach of
contract claim
At Burns s request, the trial court filed findings of fact and conclusions of
law, stating in r evan art:
FINDINGS:
The Court finds no contract existed between the parties. The exhibits
and pleading make clear that a mere Letter of Intent is what Plaintiff
[Burns] has hung his hat upon as the alleged contract at is
matter. [sic]
he Court that pleadin [sic] show that the alleged
contract does not meet the standard rules of contract formation,
necessary to make a letter of intent an enforceable contract. Here,
re was no meeting of the minds. Upon the pleadings and exhibits, I
ther was no intent on the part of fenda [White], to be bound
to any action in this matter.
CON USIONS:
Whereas the Court concluded no contract between these parties, the
court dismissed the cause of action on 16 September 2020.
In this ma r, Plaintiff was eatedly advised that his claims had no
merit based upon the pleadings and arguments presented in this court.
Plaintiff filed pleadings in this Court, forging the signature block a
information of his former Attorney
Plaintiff per ted in these effort , which the court found to be
volous. The persistence of Plaintiff in pursuing frivolous actions,
causing Defendant to continue to employ private counsel.
IAS GAINST THE
Burns irst issue titled inst the la consis s of merous
alleged wrongs committed by the trial court, including fail to apply 37.004
[Texas Civil Practice and Remedies Code] to letter of intent, allowing Hicks to
withdraw as counsel after insisting that Burns obtain awyer, violating Bu
nstitutional ight to self representation by instructing Burns to obtain a lawyer
the first place, failing to rule on Burns s discovery and declaratory judgment
motions, and allowing Hicks to withdraw without a written orde Additi nally,
under this issue, Burns asserts that Hicks failed to submit any evidence to support
the allegation that Burns forged his signature
hile we construe a pro se appellant brief liberally to reach his llate
issues on the merits when po , pro se litigan s such a Burns are ultimately
ld to the same standards as licensed attorneys and must comply with all
applicable rules of procedure Harrison v. Reiner, 607 S.W.3d 450, 457 (Tex.
App. Houston [1 h Dist.] 2020, pet. denied) citin eks Marine, Inc. v
Garza 371 S.W.3d 157, 162 (Tex. 2012)
multifarious point one that embraces more than one specific ground.
Stults State, S.W.3d 198, (Tex. App. Houston [14th Dist.] 2000, pet
Although disregard and eview multif rious ints,
also lect consider them able determine, with easonable
certainty, the alleged error about which appellant complains. Id.
While Burns does cite to the record and several cases Burns does not
ovide any authority that show us ho trial court committed error For
ample, Burns has not directed us to any case that supports the notion that the
trial court committed error by advising Burns to retain an attorney To the contrary,
in a criminal proceeding, trial courts are obligated to admo defendants about
the dangers and disadvantages of representation, as the trial court did here See
Alford v. State, 367 S.W.3d 855, 861 (Tex. App. Houston [14th Dist.] 2012, pet.
Burns also fails to make argument or cite any ase law to support
position that the trial court ed by owing Hicks to withdraw, or to support his
argument that the trial court erred by allowing Hicks to withdraw without a wr tten
order In fact, Burn s claim that the trial court allowed cks to withdraw without a
written order is controverted by the rec which contains a signed rder gra
motion to withdraw.
Appellant further comp ins that the trial court erred in failing to apply
37.0 February 14, 2020 and on March 4, 2020, Burns filed
dentical motio for decl tory judgment on July 2 and August 4, 2020, Burns
filed identical amended motions or declaratory judgment requesting that the court
issue an order declaring that an enforceable contr agreement existed between
Burns and White based on the er of intent The trial urt denied Burns
amended motion on August 27, 202 , and granted White s R le 91a Amended
Motion to Dismiss on ptember 17, 2020
urns fails to detail how the trial court erred in failing to apply 37.0
does not cite to authority to support his argument
even constru his brief liberally Burn s first issue is unsupported
by the rec rd, inadequately briefed, incomplete, and multifariou See Alta Mesa
Holdings, L.P. . Ives, 488 S.W.3d 438 n.6 (Tex. App. Houst [14th Dist.]
tion tates, in its entirety
SUBJECT MATTER OF RELIEF
(a) A person interested under a deed, will, written contract, or other writings
constituting a co ract or whose rights, status or other legal relations are
affected by a statute, municipal ordinance, contract, or franchise may have
determined any question of construction or validity arising under the
instrument, statute, ordinance, contract, or fran ise and obtain a declaration
f rights, status, or other legal relations thereunder.
A contract may be construed either before or after there has been a breach.
(c) Notwithstanding Section Property Code, a person described by
Subsection (a) may obtain a determination under this chapter when the sole
sue concerning title to real property is the determination of the prope
boundary line between adjoining properties.
Tex. Civ. Prac. Rem. Code Ann
2016, pet. denied) refusing to address issue that was speculative, incomplete, and
multifarious Bell v. Tex. Dep t of Crim Justice Institutional Div , 962 S.W.2d
156, 157 n.1 (Tex. App. Houston [14th Dist. 98, pet. denied) observing that
courts of appeal may disregard multifarious issues see also Jones v. Villages of
Town Ctr. Owners Ass n, Inc. No. 14 00306 CV, 2013 WL 2456873, at *6
(Tex. App. Houston [14th Dist.] June 6, 2013, pet. denied) If the
appellate court concludes that a point of error is multifarious, it may refuse to
review urn s first issue is overruled.
III. EFFECTIVE SSISTANCE O
In his second issue, rns argues that he received ineffective assistance
ounsel.
D OF EVIEW PPLICABLE
well established that the doctri ineffective assistance counsel
does not extend civil cases. Interest of A.L.H., 515 S.W.3d 60, 87
(Tex. App. Houston [14th Dist.] 2017, pet. de Cher Westheim
Festival Corp. S.W.3d 337, 343 (Tex. App. Houston 14th Dist. 2003,
pet.) The Sixth Amendment of the United States Constitution a Article 10 of
the Texas Constitution provide that “in all criminal pro tions, the accused sha
enjoy the right to have the assistance of counsel for his defens U.S. Const
mend. VI; art. I, § 10 (emphasis added).
right been extended certain civil proceedings, suc
termination pare rights cases, see M.S. S.W.3d 534, 544 (Tex.
003), but generally presume that part not assert ineffective sistance
couns unless she has constitutional tatutory right assistance
couns S.W.3d 251, 258 ex. App. Houston [14th Dist.]
2017, pet.) Burns has not ted, nor have und, any cases indicating that
party has constitutiona right fective assistance counsel litigation
involving each contract. rrule Burns second ssue.
OTION TO ISMISS
his third issue rns argues that the trial court e ed in granting White
motion to dismiss because ere was a binding contract between Burns and White
VIEW
Rule purp allow dismissal cause action that has “no
basis law fact Tex. Civ. 91a.1. specified rule 91a cause
action has basis allegations, taken true, together with inferences
asonably drawn from them entitle imant the relief sough Id.
cause cti basis fact “no reasonable person could believe the facts
pleaded.” Id. rule motion dismiss must state that it is made pursuant to the
le, must identify eac ction which addressed and must sta
specifically the reasons cause action has basis aw, asis fact,
both. Id. 91a.2. White motion dismi clearly sought rule 91a relief
Bur each contract clai motio cited the rul identified the cause
ction which was addresse and specifically stated the son why claim
had basis law fact: lette inten indefinite, lacked essential
terms, and Whit was party ter intent individual
See
review novo trial court ruling rule otion City Dallas
Sanchez S.W.3d 722, 724 ex. 16) (per curiam see also
Barbe Steakh Inc. Three Point Invs., Ltd. 527 S.W.3d 686,
(Tex. App. uston [14th Dist.] 2017, pet.). look solely the pleading
and any attachments determine hether the dismissal ndard satisfied.
Estate of Savana 529 S.W.3d 587, 592 App. Houston [14th Dist.] 2017, no
pet.) Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App. Houston [14th Dist.]
2014, pet. denied) determine cau ction has basis law ct,
construe the pleadings libera favor pla look the plead intent,
accept true the factual allegations petition. Woole S.W.3d
HMT Tank Serv. LLC v. Am. Tank & Vessel, , 565 S.W.3d 799, 807 08 (T x.
App. Houston [14th Dist.] 2018, n pet.)
PPLICABLE
The elements of a b con act action are (1) the existence of a valid
contract, (2) performance or tendered performance by the plaintiff, (3) breach of
e contract by the defendant, nd (4) damages sustained by the plai iff as a result
of th ch.” See Mays v. Pierce, 203 S. 3d 564, 575 (Tex. App. Houston
[14th Dist.] 2006, pet. denied). “A breach occurs when a party fails or refuses to do
something he has promised to do.” See id
e elements of a valid contract ar (1) an offer, (2) an tance, (3) a
eting the minds, (4) each party consent erms, and (5) execution and
deliver the contract with the intent that mutual and binding. Tyco Valves
Controls, Colorado S.W.3d 750, (Tex. App. Houston
st.] 2012 aff , 432 S.W.3d 885 (Tex. 2014) The elements written and oral
contracts the same and must present for contract binding Id. (citing
Wal Mart Stores, Inc. Lopez, S.W.3d 548, 555 (Tex. App. Houston [14th
Dist.] 002 pet.)
he party alleging breach of contract has the “burden o proving the
existence of a valid contract.” McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 39
(Te . 2019) see First Fed. Credit Union Fisher No. 00140 CV,
202 005 (Tex. App. Houston [14th Dist.] Feb. 2020, pet.
denied) op.) nce the exi tence of a contract has been established,
agreement force ble, there must ting the minds with respect
subject matter and sen terms. Comm Gigabit Techs.,
00730 CV, 2021 2965456, (Tex. App. Houston [14th Dist.] July
2021, pet. denied em. op.) (citin Parker Drilling Co. Romfor Supply
Co. 316 S.W.3d 68, Tex. App. Houston 4th 2010, pet. denied)
dditionally, “[t] enforceable, contract must address all its essential and
material terms with reasonable degree certainty definiteness. Fisch
CTMI, L.L.C. S.W.3d 231, (Tex. 2016) (quotin orp. Jackson
284 S.W.2d 340, (Tex. 1955)) see Comm 2965456,
[A] contract must least sufficiently definite confirm tha both parties
actually inte contractually bound. sch 479 S.W.3d 237 Eve
whe the parties intent agree clear, the agreement terms ust
sufficientl definite permit the court understand the parties obligations and
appropriate remedy for breach. Id. Comm 2021 5456,
agreemen mus definite with respect those terms that are material
and essential the parties agreement. Fischer 479 S.W.3d 237. Material and
essential terms hose that partie would reasonably regard vitall importa
elements heir rga determined case case basis. Id.
Comm 2021 65456,
Our primary concern construing contract ascertain and give
intentions the par ies objectively manifested that strument. Carnegie
mes nstr. LLC v. Turk, No. 14 00260 CV, 2017 WL 3927290, at *1
ex. Ap Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.) (citing Fiess
State Farm loyds, S.W.3d 744, 746 2006) with any other
contrac the parties intent verned what they id, not what they
intended but did ot. Contract terms given their plain, ordinary, and
generally accepted meanings unless the ntract itself shows used
technical diffe ent sense. Valence Op rat g Co. v. Dorsett, 164 S.W.3d 656,
(Tex. 2005) see also Carnegie Homes Constr. 2017 3927290,
determining the meaning contract terms, consider the context
circumstances existing the the contract was ecu particular
usiness activity sought serve See Columbia Transmission Corp.
Ulm Gas, Ltd., 940 S.W.2d 587, (Tex. 1996); Reilly angers Mgmt.,
Inc., S.W.2 527, 530 (Tex. 87).
PPLICATIO
It was Burns burden t prove the existence of a valid, enforceable contract
between Burns and White See Lopez, 576 S.W.3d at It is true that letter
intent may binding even though refers the draf future more formal
reeme John Wood Group nc. ICO, Inc. S.W.3d (Tex.
App. Houston [1st Dist.] pet. denied) hus, a party who does not wish to
be prematurely bound by a letter agreemen should include “a provision learly
ting that the letter is nonbinding, as ch nega of liability have been held to
be effective. No such provision was included here Nevertheless, still
conclude that the letter of intent did not create a binding con ract
The letter f intent indicates that EMD Supply Inc has nsiderable
rest in funding a prototype of Burns s invention and that upon availability of
a prototype, EMD Supply Inc. would agree to begin future negotiations But he
etter of intent lacks essenti l terms, such as the price, the specific performance
prom sed, and the ming of said performance See Fischer S.W.3d 237.
Thus, we conclude the letter of intent fails for indefiniteness because we have no
essential te providing how we would en orce each of the parties rights
scher S.W.3d 237 Stanley oot Co. v. Bank of El Paso, 847 S.W 2d
218, 221 22 (Tex. 1992) And inasmuch as Burns argues that letter of intent
was an agreement to enter into future contract, w hav previously held th
[a]greement like letter of intent] to ne otiate toward a future contract are not
legally enforceable K. Griff Investigations, Inc. v. Cronin, 633 S.W.3 81, 90
(Te . App. Houston [14th Dist.] 2021, no pet.) In other words, thi letter of
intent was no more than an indefinite indication of interest i negotiating toward a
contract in the future s the trial court conclude the letter of intent does not
demonstrate that the parties actually intended to be contractually bound
scher 479 S.W.3d
Further, because letter of intent states that [u]pon availability of a
prototype, EMD Supply, Inc. would agree begin future negotiatio , creation of
a functional pro otype was ondition precedent to the parties rmation of
binding contract. ee also Schwarz rdan, Inc. of Hous. v. Delisle Constr. Co.
569 S.W.2d 878, 881 (Tex. 1978) “Terms such if, provide that,
condition that, usually indicate intent that provision condition
prece ent rather than promise.”) Because a functional prototype was never
created, no enforceable contract was formed See halker Energy rtners III
LLC v. Le Norman Operating LLC, 595 S.W.3d 668, 673 (T . 202 (“A party
eeking to recover under a contr bears the burden of proving that all conditions
precedent have been satisfied.”) Cro , 633 S.W.3 90 concluding at ere
was no orceable contract because the conditions precedents of the letter of
intent had not occurred
appeal, Burns rgues that even the letter intent was not sufficie
itse White had verbally offer 30,000 and royalties Burns
exchange for Burns intellectual property, including plans, sketches, drawings,
specifications Burns inv ntion However, Burns has not directed nor
have found where in record where Burn esent this argument the
trial court The first time Burns presented his argument was bill exceptions
that prepared after his noti eal was filed. We will not consider
round for reve that wa not expres ly presented to th ial court by written
motion, answer, or other response Bob v. Cypresswood Cmty. Ass , No.
00311 CV, 2015 WL 3423753, at *3 (Tex. App. Houston [1s Dist.] May 28,
2015, no pet.) (mem. op. see Vawter Garvey, 7 6 S.W.2d 263, 264 (Tex.
1990) Thus, we will not consider the alleged existence of an oral contract as a
ground for reversing the motion dismis
we conclude that no contract sted between the parties we need
not address any issue regarding the capacity of the parties to contract See Tex.
R. App. P. 47.1
We conclude that Burn s breach of contract claim had no basis in law or
fact and the trial court did not rr by grant ng White s motion to dismiss. See Tex.
Civ. 91a Sanchez 494 S.W.3d 724 We overrule Burns third issue.
ONCLUSION
affirm the judgment of the trial court
/s/ Meg Poissant
usti
nel consists stice well rliot, and issant
CAUSE NO. 19
ERIC D. BURNS, IN THE DISTRICT COURT
Plaintiff,
vs. 268th JUDICIAL DISTRICT
JAMES A. WHITE,
Defendant. FORT BEND COUNTY, TEXAS
DEFENDANT AMENDED ANSWER TO PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, JAMES A. WHITE White file this Amended Answer Plaintiff’s Original
Petition and would respectfully show the ourt as follows
GENERAL DENIAL
authorized by Texas Rule of Civil Procedure White generally denies the allegations
contained in Plaintiff’s Original Petition, as the same may hereafter be amended or supplemented,
and demands that Plaintiff strictly prove each claim by a preponderance of the credible evidence or
such higher evidentiary standard, as required by the Constitution and the laws of the State of Texas.
SPECIFIC DENIAL
Pursuant to Tex. R. Civ. P. 54, White denies that all conditions precedent to Plaintiff’s claim
ave been performed or have occurred as alleged in Plaintiff’s Original Petition, and in particular
White specifically denies that Plaintiff’s Home Communicator concept was ever in a position to be
developed.
AFFIRMATIVE DEFENSES AND OTHER DEFENSES
White affirmatively pleads that Plaintiff has failed to state a claim for which relief may be
granted.
White affirmatively pleads that he is not a party to the alleged contract
White affirmatively pleads that no contract ever existed between White or EMD Supply, Inc.
and Plaintiff that could have been breached.
White affirmatively pleads that the written instrument upon which Plaintiff’s pleading is
founded is without consideration
RIFIED DENIAL
As authorized by Tex. R. Civ. P. 93(2), White denies that he is liable in the capacity in which
he has been sued. White signed the alleged contract in his capacity as “CEO” on behalf of “EMD
Supply, Inc.”
As authorized by Tex. R. Civ. P. 93(9), White further alleges that the written instrument upon
which Plaintiff’s pleading is founded is without consideration in that White’s alleged promise to
“build a functional prototype or financially fund a working prototype” of Plaintiff’s Home
Communicator concept is not supported by consideration because the alleged contract did not
impose any obligations whatsoever on the Plaintiff.
RESERVATION OF RIGHT TO AMEND
White reserves his right to amend this Amended Answer and to allege such facts and
affirmative defenses as may be developed during the progress of this lawsuit.
PRAYER
WHEREFORE, PREMISES CONSIDERED, JAMES A. WHITE prays that Plaintiff take
nothing in this suit against him and that White have and receive such other and further relief, both
general and special, at law and in equity, to which he may show himself justly entitled.
Respectfully submitted,
ZABEL FREEMA
By:__/s/ James A. Freeman
Thomas A. Zabel, SBN 22235
tzabel@zflawfirm.com
James A. Freeman, SBN 00796580
jfreeman@zflawfirm.com
Griffin C. Rice, SBN 24116961
grice@zflawfirm.com
1135 Heights Blvd.
Houston, Texas 77008
9114 (Fax)
ATTORNEYS FOR DEFENDANT
JAMES A. WHITE
CERTIFICATE OF SERVICE
I hereby certify that on the day of December 2019, a true and correct copy of the
foregoing instrument was served on the following in the manner indicated below.
Via facsimile and Certified Mail
Eric D. Burns
391 Hwy 90E
Sealy, Texas 77474
facsimile
_/s/ James A. Freeman _________
James A. Freeman
Preview
CAUSE NO. ERIC D. BURNS, IN THE DISTRICT COURT Plaintiff, vs. 268th JUDICIAL DISTRICT EMD SUPPLY INC., ET AL, AND JAMES A. WHITE, IN HIS OFFICIAL CAPACITY AS CEO OF EMD SUPPLY ET AL. Defendant. FORT BEND COUNTY, TEXAS DEFENDAN ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Defendant EMD SUPPLY INC. and JAMES A. WHITE Defendants file this Original Answer Plaintiff’s Original Petition and respectfully show the ourt as follows GENERAL DENIAL As authorized by Texas Rule of Civil Procedure Defendants generally den the allegations contained in Plaintiff’s Original Petition, as the same may hereafter be amended or supplemented, and demand that Plaintiff strictly prove each claim by a preponderance of the credible evidence or such higher evidentiary standard, as required by the Constitution and the laws of the State of Texas. SPECIFIC DENIAL Pursuant to Tex. R. Civ. P. 54, Defendants den that all conditions precedent to Plaintiff’s claim have been performed or have occurred as alleged in Plaintiff’s Original Petition, and in particular Defendants specifically den that Plaintiff’s Home Communicator concept was ever in a position to be developed. AFFIRMATIVE DEFENSES AND OTHER DEFENSES Defendants affirmatively plead that Plaintiff has failed to state a claim for which relief may be granted. Defendants affirmatively plead that James A. White is not a party to the alleged contract Defendants affirmatively plead that no contract ever existed between Defendants and Plaintiff that could have been breached. Defendants affirmatively plead that the written instrument upon which Plaintiff’s pleading is founded is without consideration Defendants affirmatively plead that this case has already been litigated and is barred by res judicata. VERIFIED DENIAL As authorized by Tex. R. Civ. P. 93(2), Defendants den that James A. White is liable in the capacity in which he has been sued. As authorized by Tex. R. Civ. P. 93(9), Defendants further allege that the written instrument upon which Plaintiff’s pleading is founded is without consideration in that White’s alleged promise to “build a functional prototype or financially fund a working prototype” of Plaintiff’s Home Communicator concept is not supported by consideration because the alleged contract did not impose any obligations whatsoever on the Plaintiff. RESERVATION OF RIGHT TO AMEND Defendants reserv the right to amend this Original Answer and to allege such facts and affirmative defenses as may be developed during the progress of this lawsuit. See Memorandum Opinion filed June 28, 2022 in the Fourteenth Court of Appeals, Cause No. 14 CV, Eric D. Burns v. James A. White (On Appeal from the 268 District Court, Fort Bend County, Texas, Trial Court Cause No. 19 DCV 268373), attached as Exhibit “A” hereto. Defendants attach (as Exhibit “B”) and incorporate herein, James A. White’s Amended Answer and Verification from Eric D. Burns v. James A. White, Cause No. 19 DCV 268373, in the Judicial District Court, Fort Bend County, Texas. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that Plaintiff take nothing in this suit against him and that Defendants have and receive such other and further relief, both general and special, at law and in equity, to which may show themselves justly entitled. Respectfully submitted, ZABEL FREEMA By:__/s/ James A. Freeman Thomas A. Zabel, SBN 22235500 tzabel@zflawfirm.com James A. Freeman, SBN 00796580 jfreeman@zflawfirm.com Griffin C. Rice, SBN 24116961 grice@zflawfirm.com Walter T. Williams, SBN wwilliams@zflawfirm.com 1135 Heights Blvd. Houston, Texas 77008 9114 (Fax) ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on the day of August, 2022, a true and correct copy of the foregoing instrument was served on the following in the manner indicated below. Via facsimile and U.S. Mail, return receipt requested Eric D. Burns 391 Hwy 90E Sealy, Texas 77474 facsimile /s/ Griffin C. Rice Griffin C. Rice Affirmed and Memorandum Opinion filed June , 2022. In The Fourteenth Court of Appeals NO. 00646 ERIC D. BURNS, Appellant JAMES A. WHITE, Appellee On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 268373 MEMORANDUM OPINION Pro se appellant Eric Burns filed suit against appellee James White for breach of contract. In three issue on appeal, Burns argues that: ( the trial court erred by being bias[ed] against the law, (2) he received ineff tive assistance of counsel, and (3) the trial court erred in granting White s motion to dismiss. We affirm. ACKGROUND November 8, 2019, Burns filed suit against White. In his petition, Burns alleged that he and White entered into a letter of ntent signed by White in February 2017. The letter of intent in its entirety appears as follows urns alle ed that fully performed his obligations under the contract, but that White failed to build or fund a prototype, per the agree nt. White filed a ge ral denial and alleg several affirmatives defenses, namely that White is not a party to the contract in his individual capacity, no contract existed between White and Burns that could have been breached, and the letter of tent lacks consideration. ecause the parties are familiar with the facts of the case we set forth the facts of the case necessary to advise the parties of the cour s decision and basic reasons for it in light sues raised. See Tex. R. App. P. December 201 White filed a motion to dismiss the case pursuant to ule 91a of the Texas Rules of Civil Procedure. In his motion, White asserted that Burns s breach of contract claim has no basis in law or ct for three reasons: (1) the letter of intent lac essential terms such as timing of performance d price to be paid that would be expected to be included in a contract for development ) the letter of intent is indefinite, which indicates that ther was no meeting of the minds; and (3) only Burns an EMD Supply, Inc are parties to the letter of intent, not White in his individual capacity. The motion to dismiss was heard in January 2020. The trial court denied the motion advised Burns to tain an attorney: Trial Cour Let me stop you. Mr. Burns? Burns Yes, sir. [Trial Court]: Why are you here without an attorney? Burns I was not able to afford one at the time of these proceedings. [Trial Court]: Mr. Burn I think you need an attorney. Your motion to dism s is denied. Mr. Burns Burns Yes, sir. [Trial Court]: this case is going to go forward. If you don come in here with an attorney Burns Yes, sir. [Trial Court]: those two guys are going destroy you. All right? Bur Yes, sir. In March 2020, Jamal Hicks appeared as Burns s attorney. On July 1 2020, Burns filed a letter with the trial court that inform Hicks I have filed several motions listing you as my attor y of record tter also instructed icks to research the facts of this case complain of Hicks s representation of rns. On July 22, 2020, Hicks filed motion to withdraw, alleging that Burns filed three unauthoriz pleadings with th trial cour [Burns] never spo with [Hicks] about the contents or filing of the three aforementioned motions. [Burns] rafted and filed all three motions by himself, then proceeded to forge [Hicks name, law firm, and State Bar Nu er in the signatur block of all three motions. ks] did not authorize such actions, as [Hicks signature block was added to all three motions without [Hicks knowledge or approval. urns actions were fraudulent, unauthorized, and unethical, t refore putting [Hi ks] in an unprecedented positio as an officer of the Court On August 19, 2020, before the trial court ruled on the motion to withdraw, White filed an amended motion to dismiss, asserting the same grounds for dismissal as the original moti Augu 24, 2020, the trial court grante Hicks s motion to withdraw. The trial court heard the amended motion to dismiss on September 16, 2020. The next day, the trial court granted the motion to dismi The day after ns filed timely appeal. In October 2020, White filed a motion to modify the final judgment to include an award of attorney s fees. In his motion, White claimed that he did not originally include attorn s fees in his proposed order in the h es of finally concluding this dispute but now sought attorney s fees cause of Burn continued pursuit of the case and the expenses at would be incurred if Burns filed appeal. The trial court gr ted the motion to modify the judgment, awarding White $5,816. in attorn s fees and costs only with respect to Burns breach of contract claim At Burns s request, the trial court filed findings of fact and conclusions of law, stating in r evan art: FINDINGS: The Court finds no contract existed between the parties. The exhibits and pleading make clear that a mere Letter of Intent is what Plaintiff [Burns] has hung his hat upon as the alleged contract at is matter. [sic] he Court that pleadin [sic] show that the alleged contract does not meet the standard rules of contract formation, necessary to make a letter of intent an enforceable contract. Here, re was no meeting of the minds. Upon the pleadings and exhibits, I ther was no intent on the part of fenda [White], to be bound to any action in this matter. CON USIONS: Whereas the Court concluded no contract between these parties, the court dismissed the cause of action on 16 September 2020. In this ma r, Plaintiff was eatedly advised that his claims had no merit based upon the pleadings and arguments presented in this court. Plaintiff filed pleadings in this Court, forging the signature block a information of his former Attorney Plaintiff per ted in these effort , which the court found to be volous. The persistence of Plaintiff in pursuing frivolous actions, causing Defendant to continue to employ private counsel. IAS GAINST THE Burns irst issue titled inst the la consis s of merous alleged wrongs committed by the trial court, including fail to apply 37.004 [Texas Civil Practice and Remedies Code] to letter of intent, allowing Hicks to withdraw as counsel after insisting that Burns obtain awyer, violating Bu nstitutional ight to self representation by instructing Burns to obtain a lawyer the first place, failing to rule on Burns s discovery and declaratory judgment motions, and allowing Hicks to withdraw without a written orde Additi nally, under this issue, Burns asserts that Hicks failed to submit any evidence to support the allegation that Burns forged his signature hile we construe a pro se appellant brief liberally to reach his llate issues on the merits when po , pro se litigan s such a Burns are ultimately ld to the same standards as licensed attorneys and must comply with all applicable rules of procedure Harrison v. Reiner, 607 S.W.3d 450, 457 (Tex. App. Houston [1 h Dist.] 2020, pet. denied) citin eks Marine, Inc. v Garza 371 S.W.3d 157, 162 (Tex. 2012) multifarious point one that embraces more than one specific ground. Stults State, S.W.3d 198, (Tex. App. Houston [14th Dist.] 2000, pet Although disregard and eview multif rious ints, also lect consider them able determine, with easonable certainty, the alleged error about which appellant complains. Id. While Burns does cite to the record and several cases Burns does not ovide any authority that show us ho trial court committed error For ample, Burns has not directed us to any case that supports the notion that the trial court committed error by advising Burns to retain an attorney To the contrary, in a criminal proceeding, trial courts are obligated to admo defendants about the dangers and disadvantages of representation, as the trial court did here See Alford v. State, 367 S.W.3d 855, 861 (Tex. App. Houston [14th Dist.] 2012, pet. Burns also fails to make argument or cite any ase law to support position that the trial court ed by owing Hicks to withdraw, or to support his argument that the trial court erred by allowing Hicks to withdraw without a wr tten order In fact, Burn s claim that the trial court allowed cks to withdraw without a written order is controverted by the rec which contains a signed rder gra motion to withdraw. Appellant further comp ins that the trial court erred in failing to apply 37.0 February 14, 2020 and on March 4, 2020, Burns filed dentical motio for decl tory judgment on July 2 and August 4, 2020, Burns filed identical amended motions or declaratory judgment requesting that the court issue an order declaring that an enforceable contr agreement existed between Burns and White based on the er of intent The trial urt denied Burns amended motion on August 27, 202 , and granted White s R le 91a Amended Motion to Dismiss on ptember 17, 2020 urns fails to detail how the trial court erred in failing to apply 37.0 does not cite to authority to support his argument even constru his brief liberally Burn s first issue is unsupported by the rec rd, inadequately briefed, incomplete, and multifariou See Alta Mesa Holdings, L.P. . Ives, 488 S.W.3d 438 n.6 (Tex. App. Houst [14th Dist.] tion tates, in its entirety SUBJECT MATTER OF RELIEF (a) A person interested under a deed, will, written contract, or other writings constituting a co ract or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or fran ise and obtain a declaration f rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach. (c) Notwithstanding Section Property Code, a person described by Subsection (a) may obtain a determination under this chapter when the sole sue concerning title to real property is the determination of the prope boundary line between adjoining properties. Tex. Civ. Prac. Rem. Code Ann 2016, pet. denied) refusing to address issue that was speculative, incomplete, and multifarious Bell v. Tex. Dep t of Crim Justice Institutional Div , 962 S.W.2d 156, 157 n.1 (Tex. App. Houston [14th Dist. 98, pet. denied) observing that courts of appeal may disregard multifarious issues see also Jones v. Villages of Town Ctr. Owners Ass n, Inc. No. 14 00306 CV, 2013 WL 2456873, at *6 (Tex. App. Houston [14th Dist.] June 6, 2013, pet. denied) If the appellate court concludes that a point of error is multifarious, it may refuse to review urn s first issue is overruled. III. EFFECTIVE SSISTANCE O In his second issue, rns argues that he received ineffective assistance ounsel. D OF EVIEW PPLICABLE well established that the doctri ineffective assistance counsel does not extend civil cases. Interest of A.L.H., 515 S.W.3d 60, 87 (Tex. App. Houston [14th Dist.] 2017, pet. de Cher Westheim Festival Corp. S.W.3d 337, 343 (Tex. App. Houston 14th Dist. 2003, pet.) The Sixth Amendment of the United States Constitution a Article 10 of the Texas Constitution provide that “in all criminal pro tions, the accused sha enjoy the right to have the assistance of counsel for his defens U.S. Const mend. VI; art. I, § 10 (emphasis added). right been extended certain civil proceedings, suc termination pare rights cases, see M.S. S.W.3d 534, 544 (Tex. 003), but generally presume that part not assert ineffective sistance couns unless she has constitutional tatutory right assistance couns S.W.3d 251, 258 ex. App. Houston [14th Dist.] 2017, pet.) Burns has not ted, nor have und, any cases indicating that party has constitutiona right fective assistance counsel litigation involving each contract. rrule Burns second ssue. OTION TO ISMISS his third issue rns argues that the trial court e ed in granting White motion to dismiss because ere was a binding contract between Burns and White VIEW Rule purp allow dismissal cause action that has “no basis law fact Tex. Civ. 91a.1. specified rule 91a cause action has basis allegations, taken true, together with inferences asonably drawn from them entitle imant the relief sough Id. cause cti basis fact “no reasonable person could believe the facts pleaded.” Id. rule motion dismiss must state that it is made pursuant to the le, must identify eac ction which addressed and must sta specifically the reasons cause action has basis aw, asis fact, both. Id. 91a.2. White motion dismi clearly sought rule 91a relief Bur each contract clai motio cited the rul identified the cause ction which was addresse and specifically stated the son why claim had basis law fact: lette inten indefinite, lacked essential terms, and Whit was party ter intent individual See review novo trial court ruling rule otion City Dallas Sanchez S.W.3d 722, 724 ex. 16) (per curiam see also Barbe Steakh Inc. Three Point Invs., Ltd. 527 S.W.3d 686, (Tex. App. uston [14th Dist.] 2017, pet.). look solely the pleading and any attachments determine hether the dismissal ndard satisfied. Estate of Savana 529 S.W.3d 587, 592 App. Houston [14th Dist.] 2017, no pet.) Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App. Houston [14th Dist.] 2014, pet. denied) determine cau ction has basis law ct, construe the pleadings libera favor pla look the plead intent, accept true the factual allegations petition. Woole S.W.3d HMT Tank Serv. LLC v. Am. Tank & Vessel, , 565 S.W.3d 799, 807 08 (T x. App. Houston [14th Dist.] 2018, n pet.) PPLICABLE The elements of a b con act action are (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of e contract by the defendant, nd (4) damages sustained by the plai iff as a result of th ch.” See Mays v. Pierce, 203 S. 3d 564, 575 (Tex. App. Houston [14th Dist.] 2006, pet. denied). “A breach occurs when a party fails or refuses to do something he has promised to do.” See id e elements of a valid contract ar (1) an offer, (2) an tance, (3) a eting the minds, (4) each party consent erms, and (5) execution and deliver the contract with the intent that mutual and binding. Tyco Valves Controls, Colorado S.W.3d 750, (Tex. App. Houston st.] 2012 aff , 432 S.W.3d 885 (Tex. 2014) The elements written and oral contracts the same and must present for contract binding Id. (citing Wal Mart Stores, Inc. Lopez, S.W.3d 548, 555 (Tex. App. Houston [14th Dist.] 002 pet.) he party alleging breach of contract has the “burden o proving the existence of a valid contract.” McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 39 (Te . 2019) see First Fed. Credit Union Fisher No. 00140 CV, 202 005 (Tex. App. Houston [14th Dist.] Feb. 2020, pet. denied) op.) nce the exi tence of a contract has been established, agreement force ble, there must ting the minds with respect subject matter and sen terms. Comm Gigabit Techs., 00730 CV, 2021 2965456, (Tex. App. Houston [14th Dist.] July 2021, pet. denied em. op.) (citin Parker Drilling Co. Romfor Supply Co. 316 S.W.3d 68, Tex. App. Houston 4th 2010, pet. denied) dditionally, “[t] enforceable, contract must address all its essential and material terms with reasonable degree certainty definiteness. Fisch CTMI, L.L.C. S.W.3d 231, (Tex. 2016) (quotin orp. Jackson 284 S.W.2d 340, (Tex. 1955)) see Comm 2965456, [A] contract must least sufficiently definite confirm tha both parties actually inte contractually bound. sch 479 S.W.3d 237 Eve whe the parties intent agree clear, the agreement terms ust sufficientl definite permit the court understand the parties obligations and appropriate remedy for breach. Id. Comm 2021 5456, agreemen mus definite with respect those terms that are material and essential the parties agreement. Fischer 479 S.W.3d 237. Material and essential terms hose that partie would reasonably regard vitall importa elements heir rga determined case case basis. Id. Comm 2021 65456, Our primary concern construing contract ascertain and give intentions the par ies objectively manifested that strument. Carnegie mes nstr. LLC v. Turk, No. 14 00260 CV, 2017 WL 3927290, at *1 ex. Ap Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.) (citing Fiess State Farm loyds, S.W.3d 744, 746 2006) with any other contrac the parties intent verned what they id, not what they intended but did ot. Contract terms given their plain, ordinary, and generally accepted meanings unless the ntract itself shows used technical diffe ent sense. Valence Op rat g Co. v. Dorsett, 164 S.W.3d 656, (Tex. 2005) see also Carnegie Homes Constr. 2017 3927290, determining the meaning contract terms, consider the context circumstances existing the the contract was ecu particular usiness activity sought serve See Columbia Transmission Corp. Ulm Gas, Ltd., 940 S.W.2d 587, (Tex. 1996); Reilly angers Mgmt., Inc., S.W.2 527, 530 (Tex. 87). PPLICATIO It was Burns burden t prove the existence of a valid, enforceable contract between Burns and White See Lopez, 576 S.W.3d at It is true that letter intent may binding even though refers the draf future more formal reeme John Wood Group nc. ICO, Inc. S.W.3d (Tex. App. Houston [1st Dist.] pet. denied) hus, a party who does not wish to be prematurely bound by a letter agreemen should include “a provision learly ting that the letter is nonbinding, as ch nega of liability have been held to be effective. No such provision was included here Nevertheless, still conclude that the letter of intent did not create a binding con ract The letter f intent indicates that EMD Supply Inc has nsiderable rest in funding a prototype of Burns s invention and that upon availability of a prototype, EMD Supply Inc. would agree to begin future negotiations But he etter of intent lacks essenti l terms, such as the price, the specific performance prom sed, and the ming of said performance See Fischer S.W.3d 237. Thus, we conclude the letter of intent fails for indefiniteness because we have no essential te providing how we would en orce each of the parties rights scher S.W.3d 237 Stanley oot Co. v. Bank of El Paso, 847 S.W 2d 218, 221 22 (Tex. 1992) And inasmuch as Burns argues that letter of intent was an agreement to enter into future contract, w hav previously held th [a]greement like letter of intent] to ne otiate toward a future contract are not legally enforceable K. Griff Investigations, Inc. v. Cronin, 633 S.W.3 81, 90 (Te . App. Houston [14th Dist.] 2021, no pet.) In other words, thi letter of intent was no more than an indefinite indication of interest i negotiating toward a contract in the future s the trial court conclude the letter of intent does not demonstrate that the parties actually intended to be contractually bound scher 479 S.W.3d Further, because letter of intent states that [u]pon availability of a prototype, EMD Supply, Inc. would agree begin future negotiatio , creation of a functional pro otype was ondition precedent to the parties rmation of binding contract. ee also Schwarz rdan, Inc. of Hous. v. Delisle Constr. Co. 569 S.W.2d 878, 881 (Tex. 1978) “Terms such if, provide that, condition that, usually indicate intent that provision condition prece ent rather than promise.”) Because a functional prototype was never created, no enforceable contract was formed See halker Energy rtners III LLC v. Le Norman Operating LLC, 595 S.W.3d 668, 673 (T . 202 (“A party eeking to recover under a contr bears the burden of proving that all conditions precedent have been satisfied.”) Cro , 633 S.W.3 90 concluding at ere was no orceable contract because the conditions precedents of the letter of intent had not occurred appeal, Burns rgues that even the letter intent was not sufficie itse White had verbally offer 30,000 and royalties Burns exchange for Burns intellectual property, including plans, sketches, drawings, specifications Burns inv ntion However, Burns has not directed nor have found where in record where Burn esent this argument the trial court The first time Burns presented his argument was bill exceptions that prepared after his noti eal was filed. We will not consider round for reve that wa not expres ly presented to th ial court by written motion, answer, or other response Bob v. Cypresswood Cmty. Ass , No. 00311 CV, 2015 WL 3423753, at *3 (Tex. App. Houston [1s Dist.] May 28, 2015, no pet.) (mem. op. see Vawter Garvey, 7 6 S.W.2d 263, 264 (Tex. 1990) Thus, we will not consider the alleged existence of an oral contract as a ground for reversing the motion dismis we conclude that no contract sted between the parties we need not address any issue regarding the capacity of the parties to contract See Tex. R. App. P. 47.1 We conclude that Burn s breach of contract claim had no basis in law or fact and the trial court did not rr by grant ng White s motion to dismiss. See Tex. Civ. 91a Sanchez 494 S.W.3d 724 We overrule Burns third issue. ONCLUSION affirm the judgment of the trial court /s/ Meg Poissant usti nel consists stice well rliot, and issant CAUSE NO. 19 ERIC D. BURNS, IN THE DISTRICT COURT Plaintiff, vs. 268th JUDICIAL DISTRICT JAMES A. WHITE, Defendant. FORT BEND COUNTY, TEXAS DEFENDANT AMENDED ANSWER TO PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Defendant, JAMES A. WHITE White file this Amended Answer Plaintiff’s Original Petition and would respectfully show the ourt as follows GENERAL DENIAL authorized by Texas Rule of Civil Procedure White generally denies the allegations contained in Plaintiff’s Original Petition, as the same may hereafter be amended or supplemented, and demands that Plaintiff strictly prove each claim by a preponderance of the credible evidence or such higher evidentiary standard, as required by the Constitution and the laws of the State of Texas. SPECIFIC DENIAL Pursuant to Tex. R. Civ. P. 54, White denies that all conditions precedent to Plaintiff’s claim ave been performed or have occurred as alleged in Plaintiff’s Original Petition, and in particular White specifically denies that Plaintiff’s Home Communicator concept was ever in a position to be developed. AFFIRMATIVE DEFENSES AND OTHER DEFENSES White affirmatively pleads that Plaintiff has failed to state a claim for which relief may be granted. White affirmatively pleads that he is not a party to the alleged contract White affirmatively pleads that no contract ever existed between White or EMD Supply, Inc. and Plaintiff that could have been breached. White affirmatively pleads that the written instrument upon which Plaintiff’s pleading is founded is without consideration RIFIED DENIAL As authorized by Tex. R. Civ. P. 93(2), White denies that he is liable in the capacity in which he has been sued. White signed the alleged contract in his capacity as “CEO” on behalf of “EMD Supply, Inc.” As authorized by Tex. R. Civ. P. 93(9), White further alleges that the written instrument upon which Plaintiff’s pleading is founded is without consideration in that White’s alleged promise to “build a functional prototype or financially fund a working prototype” of Plaintiff’s Home Communicator concept is not supported by consideration because the alleged contract did not impose any obligations whatsoever on the Plaintiff. RESERVATION OF RIGHT TO AMEND White reserves his right to amend this Amended Answer and to allege such facts and affirmative defenses as may be developed during the progress of this lawsuit. PRAYER WHEREFORE, PREMISES CONSIDERED, JAMES A. WHITE prays that Plaintiff take nothing in this suit against him and that White have and receive such other and further relief, both general and special, at law and in equity, to which he may show himself justly entitled. Respectfully submitted, ZABEL FREEMA By:__/s/ James A. Freeman Thomas A. Zabel, SBN 22235 tzabel@zflawfirm.com James A. Freeman, SBN 00796580 jfreeman@zflawfirm.com Griffin C. Rice, SBN 24116961 grice@zflawfirm.com 1135 Heights Blvd. Houston, Texas 77008 9114 (Fax) ATTORNEYS FOR DEFENDANT JAMES A. WHITE CERTIFICATE OF SERVICE I hereby certify that on the day of December 2019, a true and correct copy of the foregoing instrument was served on the following in the manner indicated below. Via facsimile and Certified Mail Eric D. Burns 391 Hwy 90E Sealy, Texas 77474 facsimile _/s/ James A. Freeman _________ James A. Freeman