Preview
FILED
8/10/2021 3:44 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
Gay Lane DEPUTY
DC-21-03339
BLUE MOUNTAIN PROPERTY * In the District Court
VENTURES LLC *
*
V. * 298th Judicial District
*
BESSIE HARRISON * Dallas County, Texas
DEFENDANT’S FOURTH AMENDED ANSWER AND COUNTERCLAIM
T0 THE HONORABLE JUDGE 0F SAID COURT:
COMES NOW, Defendant, Bessie Harrison, by and through her attorney of
record, Robert M. Clark, in the above-entitled and numbered cause and makes and files this
fourth amended answer, and in support thereof would respectfully show unto the Court as
follows:
I. AMENDED ANSWER
1. General Denial. Pursuant to Rule 92 of the Texas Rules of Civil Procedure,
Defendant denies each and every, all and singular, the allegations contained in Plaintiff‘s
Original Petition and demands strict proof thereof. As authorized by the Texas Rules of Civil
Procedure, Defendant reserves the right to amend this pleading before or during the trial of this
cause on its merits.
2. Facts. Seller/Defendant is an 86 year old lady who is sued by a “house flipper”
named Blue Mountain Property Ventures LLC managed by Ethan Edington. Blue Mountain
failed to comply with the subject real estate contract by breaching paragraph 9.B(2) of the
Contract by not depositing a $500.00 escrow with Secured Title of Texas within 3 days of the
effective date of the contract and separately for not depositing $46,500.00 additionally in funds
to the escrow agent Secured Title of Texas. Therefore, each of Blue Mountain’s breach of
contract separately invalidated the agreement and purported sale.
Defendant’s Fourth Amended Answer and Counterclaim - Page 1 0f 5
3. Specific Denials. Defendant denies the execution by herself or by hers authority
of any instrument upon which Plaintiff’s pleading is founded other than the November 20, 2020
contract, in Whole or in part, and charged by Plaintiff to have been executed by Defendant in
whole or in part.
The earnest money amount and designation of escrow agent was contained in
paragraph 5 of the November 20, 2020 property contract. Furthermore, the contract is
unenforceable by the buyer Blue Mountain pursuant to paragraph 9B(2) of the November 20,
2020 contract which requires the buyer to pay the sales price of the property in good funds
acceptable to escrow agent.
Defendant specifically denies the agreement on which the suit of Plaintiff is based
is valid or enforceable due to Plaintiff’s non-performance.
Defendant specifically denies that she had an agent who could give notices to
Plaintiff.
Defendant further denies that the amount of the account is just and that the prices
are charged in accordance with an agreement or, in the absence of an agreement, they are the
usual, customary and reasonable prices for those goods or services.
Defendant specifically denies that the amount of the account is due to Plaintiff as
alleged and further denies that all just and lawful offsets, payments, and credits have been
allowed.
Defendant specifically denies that all conditions precedent to Plaintiff’ s claims
have been performed or have occurred, including lack of presentment.
Defendant specifically denies that any items of special or consequential damages
have occurred.
Defendant’s Fourth Amended Answer and Counterclaim - Page 2 of 5
Defendant denies Plaintiff has the capacity to sue and deny Defendants are sued
in a correct capacity.
Defendant denies that an oral statement can cancel or modify the November 20,
2020 contract. Defendant further denies that Plaintiff has any applicable exception to paragraph
21 of the contract or the Texas Statute of Frauds.
4. Affirmative Defenses. For further answer, if any be necessary, Defendant pleads
prior breach of contract (paragraph 9.B.(2)), statute of limitations, waiver, estoppel, illegality,
failure of consideration, fraud as to the values it placed on the property, laches, license, release,
statute of frauds, denial of condition precedent, statute of limitations, mutual mistake and
recission, offset and mitigation, breach of implied provisions.
5. Attorney Fees. Defendant was required to obtain legal counsel in regards to this
lawsuit and would seek reimbursement for reasonable attorney's fees and costs of court
pursuant to Paragraph l7 of the Contract. Defendant is entitled to recover all reasonable
attorneys fees incurred in the presentation and prosecution of this action as are equitable and just
and authorized and provided by. the Texas Civil Practice & Remedies Code, as well as other
applicable law.
II. COUNTERCLAIMS FOR BREACH 0F CONTRACT
6. Breach of Contract under Paragraph 17 of the Contract — Counter-
Plaintiff/Defendant Bessie Harrison is entitled to recover reasonable and necessary attorney fees
for breach of contract under the provisions of the written contract as set out in Paragraph 17 of
the sales contract which provides “A Buyer, Seller, Listing Broker, Other Broker or escrow agent
who prevails in any legal proceeding related to this contract is entitled to recover reasonable
attomey’s fees and all costs of such proceeding.” Bessie Harrison has complied with all the
Defendant’s Fourth Amended Answer and Counterclaim - Page 3 0f 5
requirements of this section of the contract. But as a result of Counter-Defendant Blue
Mountain's breach of contract failure to deposit $500 to the escrow agent Secured Title of Texas
as earnest money and separately failure to deposit the remaining $46,500 in funds to the escrow
agent Secured Title of Texas in Addison, Texas as described in the foregoing paragraphs it
breached in the contract. Counter-Plaintiff Bessie Harrison has found it necessary to employ an
attorney to defend this action and bring suit on her claims.
7. Counter-P1aintiff/Defendant Bessie Harrison is making this claim for attomey’s
fees against Counter-Defendant Blue Mountain which should be ordered to compensate Bessie
Harrison for reasonable attorney's for the services rendered in bringing this suit of up to
$25,000.00. In the event of an appeal to the Court of Appeals, Counter-Plaintiff would be
entitled to a reasonable attorney's fee of $15,000, in the event of the filing of a writ to the Texas
Supreme Court, Counter-Plaintiff would be entitled to an additional reasonable attorney's fees of
$5,000, and if the writ is granted Counter-Plaintiff would be entitled to an additional attorney's
fee of $5,000. Both the defense of this case and the counterclaims are inexorably intertwined
with each other and the defense and claims cannot be segregated.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant/Counter-Plaintiff
Beessie Harrison prays that all relief sought in Plaintiffs Original Petition be denied, and
that Plaintiff goes hence with its costs without day; that Plaintiff/Counter-Defendant Blue
Mountain Property Ventures LLC pay the sum of $25,000 as a judgment for attorney fees at the
trial level and costs, with conditional appellate fees of an additional $25,000 based upon the
appellate level this case is brought as described previously, with interest after judgment at the
statutory rate of five percent until paid, costs of Suit; that the March 17, 2021 [is pendens be
Defendant’s Fourth Amended Answer and Counterclaim - Page 4 of 5
expunged and cancelled and that Defendant receive any other and fuIther relief, both general and
special, at law and in equity, to which she may show herself justly entitled.
Respectfully submitted,
EDDLEMAN & CLARK
4627 North Central Expressway
Knox Central Place, Suite 2000
Dallas, Texas 75205-4022
Phone 214.528.2400
Fax 214.528.2434
RMC@RobertMClark.net
WWW
ROBERT M. CLARK
State Bar No. 04298200
Attorney for Defendant
Certificate of Service
I certify that a true copy of the above was served on counsel for Plaintiff Landon H.Thompson at
the Meazell Firm, 1400 Gables Court, Plano, TX 75075, Fax 972.398.8488,
l.thompson@meazellfirrn.com in accordance with Rule 21a of the Texas Rules of Civil Procedure
on the 10th day of August, 2021.
mew. 4M
Robert M. Clark
Defendant’s Fourth Amended Answer and Counterclaim - Page 5 of 5
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STATE OF CALIFORNIA *
‘ VERIFICATION AFFIDAVIT
COUNTY OF L05 ANGELOS ‘
BEFORE ME. the undersigned authority. on this day personally appeared
Bessie Harrison, who. after being duly sworn. stated under oath that she is the Defendant in this
action; that she has read the answer; and that every statement contained in the specific denials is
within her personal knowledge and is true and correct.
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Bessie Harrison“ Afi‘iant
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SUBSCRIBED AND swonn TO BEFORE ME this érd day or M
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the State
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O. STEVE OSADUA
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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.
Robert Clark on behalf of Robert Clark
Bar No. 4298200
office@robertmclark.net
Envelope ID: 56177889
Status as of 8/11/2021 11:03 AM CST
Associated Case Party: BLUE MOUNTAIN PROPERTY VENTURES, LLC
Name BarNumber Email TimestampSubmitted Status
John Meazell j.meazell@meazellfirm.com 8/10/2021 3:44:44 PM SENT
Skyler N.Harrigan s.harrigan@meazellfirm.com 8/10/2021 3:44:44 PM SENT
Landon H.Thompson |.thompson@meazellfirm.com 8/10/2021 3:44:44 PM SENT
Preview
FILED 8/10/2021 3:44 PM FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS Gay Lane DEPUTY DC-21-03339 BLUE MOUNTAIN PROPERTY * In the District Court VENTURES LLC * * V. * 298th Judicial District * BESSIE HARRISON * Dallas County, Texas DEFENDANT’S FOURTH AMENDED ANSWER AND COUNTERCLAIM T0 THE HONORABLE JUDGE 0F SAID COURT: COMES NOW, Defendant, Bessie Harrison, by and through her attorney of record, Robert M. Clark, in the above-entitled and numbered cause and makes and files this fourth amended answer, and in support thereof would respectfully show unto the Court as follows: I. AMENDED ANSWER 1. General Denial. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant denies each and every, all and singular, the allegations contained in Plaintiff‘s Original Petition and demands strict proof thereof. As authorized by the Texas Rules of Civil Procedure, Defendant reserves the right to amend this pleading before or during the trial of this cause on its merits. 2. Facts. Seller/Defendant is an 86 year old lady who is sued by a “house flipper” named Blue Mountain Property Ventures LLC managed by Ethan Edington. Blue Mountain failed to comply with the subject real estate contract by breaching paragraph 9.B(2) of the Contract by not depositing a $500.00 escrow with Secured Title of Texas within 3 days of the effective date of the contract and separately for not depositing $46,500.00 additionally in funds to the escrow agent Secured Title of Texas. Therefore, each of Blue Mountain’s breach of contract separately invalidated the agreement and purported sale. Defendant’s Fourth Amended Answer and Counterclaim - Page 1 0f 5 3. Specific Denials. Defendant denies the execution by herself or by hers authority of any instrument upon which Plaintiff’s pleading is founded other than the November 20, 2020 contract, in Whole or in part, and charged by Plaintiff to have been executed by Defendant in whole or in part. The earnest money amount and designation of escrow agent was contained in paragraph 5 of the November 20, 2020 property contract. Furthermore, the contract is unenforceable by the buyer Blue Mountain pursuant to paragraph 9B(2) of the November 20, 2020 contract which requires the buyer to pay the sales price of the property in good funds acceptable to escrow agent. Defendant specifically denies the agreement on which the suit of Plaintiff is based is valid or enforceable due to Plaintiff’s non-performance. Defendant specifically denies that she had an agent who could give notices to Plaintiff. Defendant further denies that the amount of the account is just and that the prices are charged in accordance with an agreement or, in the absence of an agreement, they are the usual, customary and reasonable prices for those goods or services. Defendant specifically denies that the amount of the account is due to Plaintiff as alleged and further denies that all just and lawful offsets, payments, and credits have been allowed. Defendant specifically denies that all conditions precedent to Plaintiff’ s claims have been performed or have occurred, including lack of presentment. Defendant specifically denies that any items of special or consequential damages have occurred. Defendant’s Fourth Amended Answer and Counterclaim - Page 2 of 5 Defendant denies Plaintiff has the capacity to sue and deny Defendants are sued in a correct capacity. Defendant denies that an oral statement can cancel or modify the November 20, 2020 contract. Defendant further denies that Plaintiff has any applicable exception to paragraph 21 of the contract or the Texas Statute of Frauds. 4. Affirmative Defenses. For further answer, if any be necessary, Defendant pleads prior breach of contract (paragraph 9.B.(2)), statute of limitations, waiver, estoppel, illegality, failure of consideration, fraud as to the values it placed on the property, laches, license, release, statute of frauds, denial of condition precedent, statute of limitations, mutual mistake and recission, offset and mitigation, breach of implied provisions. 5. Attorney Fees. Defendant was required to obtain legal counsel in regards to this lawsuit and would seek reimbursement for reasonable attorney's fees and costs of court pursuant to Paragraph l7 of the Contract. Defendant is entitled to recover all reasonable attorneys fees incurred in the presentation and prosecution of this action as are equitable and just and authorized and provided by. the Texas Civil Practice & Remedies Code, as well as other applicable law. II. COUNTERCLAIMS FOR BREACH 0F CONTRACT 6. Breach of Contract under Paragraph 17 of the Contract — Counter- Plaintiff/Defendant Bessie Harrison is entitled to recover reasonable and necessary attorney fees for breach of contract under the provisions of the written contract as set out in Paragraph 17 of the sales contract which provides “A Buyer, Seller, Listing Broker, Other Broker or escrow agent who prevails in any legal proceeding related to this contract is entitled to recover reasonable attomey’s fees and all costs of such proceeding.” Bessie Harrison has complied with all the Defendant’s Fourth Amended Answer and Counterclaim - Page 3 0f 5 requirements of this section of the contract. But as a result of Counter-Defendant Blue Mountain's breach of contract failure to deposit $500 to the escrow agent Secured Title of Texas as earnest money and separately failure to deposit the remaining $46,500 in funds to the escrow agent Secured Title of Texas in Addison, Texas as described in the foregoing paragraphs it breached in the contract. Counter-Plaintiff Bessie Harrison has found it necessary to employ an attorney to defend this action and bring suit on her claims. 7. Counter-P1aintiff/Defendant Bessie Harrison is making this claim for attomey’s fees against Counter-Defendant Blue Mountain which should be ordered to compensate Bessie Harrison for reasonable attorney's for the services rendered in bringing this suit of up to $25,000.00. In the event of an appeal to the Court of Appeals, Counter-Plaintiff would be entitled to a reasonable attorney's fee of $15,000, in the event of the filing of a writ to the Texas Supreme Court, Counter-Plaintiff would be entitled to an additional reasonable attorney's fees of $5,000, and if the writ is granted Counter-Plaintiff would be entitled to an additional attorney's fee of $5,000. Both the defense of this case and the counterclaims are inexorably intertwined with each other and the defense and claims cannot be segregated. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant/Counter-Plaintiff Beessie Harrison prays that all relief sought in Plaintiffs Original Petition be denied, and that Plaintiff goes hence with its costs without day; that Plaintiff/Counter-Defendant Blue Mountain Property Ventures LLC pay the sum of $25,000 as a judgment for attorney fees at the trial level and costs, with conditional appellate fees of an additional $25,000 based upon the appellate level this case is brought as described previously, with interest after judgment at the statutory rate of five percent until paid, costs of Suit; that the March 17, 2021 [is pendens be Defendant’s Fourth Amended Answer and Counterclaim - Page 4 of 5 expunged and cancelled and that Defendant receive any other and fuIther relief, both general and special, at law and in equity, to which she may show herself justly entitled. Respectfully submitted, EDDLEMAN & CLARK 4627 North Central Expressway Knox Central Place, Suite 2000 Dallas, Texas 75205-4022 Phone 214.528.2400 Fax 214.528.2434 RMC@RobertMClark.net WWW ROBERT M. CLARK State Bar No. 04298200 Attorney for Defendant Certificate of Service I certify that a true copy of the above was served on counsel for Plaintiff Landon H.Thompson at the Meazell Firm, 1400 Gables Court, Plano, TX 75075, Fax 972.398.8488, l.thompson@meazellfirrn.com in accordance with Rule 21a of the Texas Rules of Civil Procedure on the 10th day of August, 2021. mew. 4M Robert M. Clark Defendant’s Fourth Amended Answer and Counterclaim - Page 5 of 5 AMWGWMWM mmmwmmmormmr ‘ mmmmmmmmmamh MM bunched. Ind notthetruthfum. moworvlhdityotmltdoalmnt. STATE OF CALIFORNIA * ‘ VERIFICATION AFFIDAVIT COUNTY OF L05 ANGELOS ‘ BEFORE ME. the undersigned authority. on this day personally appeared Bessie Harrison, who. after being duly sworn. stated under oath that she is the Defendant in this action; that she has read the answer; and that every statement contained in the specific denials is within her personal knowledge and is true and correct. ém-U zJW Bessie Harrison“ Afi‘iant 2021. SUBSCRIBED AND swonn TO BEFORE ME this érd day or M 05mm 0544“ Z / NOTARY PUBLIC the State in and for of California O. STEVE OSADUA Commission Not 2226258 ! norm? PUBLIC-CALIFORNIA 2 ‘ L03 KNGELES COUNTY Lu. I'm Elam. DECEIIIER as. am 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. Robert Clark on behalf of Robert Clark Bar No. 4298200 office@robertmclark.net Envelope ID: 56177889 Status as of 8/11/2021 11:03 AM CST Associated Case Party: BLUE MOUNTAIN PROPERTY VENTURES, LLC Name BarNumber Email TimestampSubmitted Status John Meazell j.meazell@meazellfirm.com 8/10/2021 3:44:44 PM SENT Skyler N.Harrigan s.harrigan@meazellfirm.com 8/10/2021 3:44:44 PM SENT Landon H.Thompson |.thompson@meazellfirm.com 8/10/2021 3:44:44 PM SENT