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CLIANN HERRING IN THE DISTRICT COURT
Plaintiff,
284TH JUDICIAL DISTRICT
STEVEN MORRISON
REYNIEL FUNDORA
OF MONTGOMERY COUNTY, TEXAS
STEVEN MORRISON’S PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Pursuant to the Court’s Docket Control Order, Defendant and Third-Party Plaintiff
herein, STEVEN MORRISON, files these proposed findings of fact and conclusions of law:
1. Findings of Fact
a. On April 12, 2021, Third Party Plaintiff, STEVEN MORRISON (herein
“Morrison”), purchased a 2006 Stingray boat (herein the “Boat”) from Third Party
REYNIEL FUNDORA (herein “Fundora”) for a purchase price of
b. In connection with the purchase, Fundora made the following representations to
Morrison intending that Morrison rely on them:
i. that the Boat was in good working order and free of mechanical and
electrical defects; and
ii. that he had proper title to the Boat.
c. Morrison relied on the foregoing representations in purchasing the Boat.
d. Morrison delivered to Fundora the sum of $10,000.00, and Fundora delivered to
e. On April 18, 2021, Morrison sold the Boat to Plaintiff, CLIANN HERRING
(herein “Herring”) for a purchase price of $11,100.00.
f. Thereafter, Morrison and Herring put the Boat on the water, but the boat would
not run due to significant mechanical and electrical defects.
Proposed Findings of Fact and Conclusions of Law
g. Herring paid the sum of $6,303.16 to have the Boat repaired, and Morrison
reimbursed her for this amount.
h. Herring incurred $231.71 for the cost of the boat title and a $20.00 penalty for the
expired title, and Morrison reimbursed her for these amounts.
i. Herring incurred $3,500.00 in attorney fees in connection with the issues related
to the Boat, and Morrison reimbursed her for these amounts.
j. Morrison incurred no less than $6,586.72 in reasonable and necessary attorney
fees and expenses in connection with this suit.
k. On November 21, 2022, Fundora entered an appearance in the case.
l. On December 6, 2022, Fundora, through his attorney of record, was served with a
copy of the Court’s Docket Control Order of August 9, 2022.
m. On January 4, 2023, Morrison, through his attorney of record, made demand on
Fundora, through his attorney of record, for the just amount owed on Morrison’s
claims.
n. Payment for the just amount owed was not tendered on or before the 30th day
after the claim was presented.
2. Conclusions of Law
a. Breach of Contract
i. Morrison and Fundora entered into a valid, binding, enforceable oral
contract supported by consideration.
ii. Morrison performed his obligations under the contract.
iii. Fundora breached the contract by failing to provide valid title and by
failing to deliver to Morrison a boat free of mechanical and electrical
defects. In addition, Fundora breached his express warranties to Morrison
that the boat was free of significant mechanical and electrical defects.
iv. Fundora’s breaches caused foreseeable injury to Morrison, including: loss
of the $10,000.00 purchase price; the cost of $6,306.16 in repairs; the cost
of $251.71 to remedy title issues; payment of $3,500.00 to Herring’s
attorney; and incurring $6,586.72 in reasonable and necessary attorney
fees and expenses. Morrison is entitled to recover damages from Fundora
of no less than $20,057.87, exclusive of Morrison’s attorney fees.
Morrison: Proposed Findings of Fact and Conclusions of Law
Page 2 of 5
v. Morrison’s attorney made demand on Fundora’s attorney for the just
amount owed and complied with the requirements of Texas Civil Practice
& Remedies Code Chapter 38, and the same was not paid. Morrison is
entitled to recover from Fundora no less than $6,587.72 for reasonable and
necessary attorney fees incurred in this case.
b. Fraud
i. Fundora falsely represented to Morrison that he had valid title to the Boat
and that the Boat was free of defects.
ii. Fundora intended that Morrison rely on these representations so that the
Boat could be sold.
iii. The representations were material, and Morrison justifiably relied on
them.
iv. Fundora knew that the representations were false or made them recklessly
without regard to their truth.
v. Alternatively, Fundora failed to disclose that he did not have good title
and that the Boat had significant electrical and mechanical defects.
vi. These facts were material to the transaction at issue, and Fundora knew
Morrison would be ignorant of them and did not provide an equal
opportunity to discover the truth.
vii. Fundora deliberately remained silent and did not disclose the facts to
Morrison, intending for Morrison to act without the information, and
Morrison justifiably relied on Fundora’s failure to disclose these material
facts.
viii. Morrison was harmed as a direct and proximate cause of the false
representations and concealed facts, including: loss of the $10,000.00
purchase price; the cost of $6,306.16 in repairs; the cost of $251.71 to
remedy title issues; payment of $3,500.00 to Herring’s attorney; and
incurring $6,586.72 in reasonable and necessary attorney fees and
expenses.
c. Negligent Misrepresentation
i. Fundora represented to Morrison that the boat was free of mechanical or
electrical defects, that the boat was fully operational, and that he had good
and lawful title to the boat.
ii. Fundora made these representations in the course of a transaction in which
Morrison: Proposed Findings of Fact and Conclusions of Law
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he had a pecuniary interest.
iii. Fundora made the representation to Morrison to induce him to purchase
the Boat.
iv. These representations were obvious misstatements of fact and constituted
a failure to disclose information that Fundora had a duty to disclose.
v. Morrison justifiably relied on Fundora’s representations when purchasing
the Boat, proximately causing the following damages loss of the
$10,000.00 purchase price; the cost of $6,306.16 in repairs; the cost of
$251.71 to remedy title issues; payment of $3,500.00 to Herring’s
attorney; and incurring $6,586.72 in reasonable and necessary attorney
fees and expenses.
d. Exemplary Damages
i. Morrison’s injuries resulted from Fundora’s actual fraud, gross
negligence, or malice.
ii. Fundora knowingly, intentionally, and maliciously made the
representations described above.
iii. Fundora was grossly negligent in the misrepresentations and omissions
described above.
iv. Morrison is entitled to exemplary damages in the amount of $20,000.00.
Respectfully submitted,
TOOMBS IMEL & ASSOCIATES, PLLC
777 Post Oak Blvd., Suite 950
Houston, Texas 77056
Tel: (713) 449-4958
walter@toombsimel.com
/s/ Walter J. Schouten, Jr.
By:
Walter J. Schouten, Jr.
State Bar No. 24077168
Attorney for STEVEN MORRISON
Morrison: Proposed Findings of Fact and Conclusions of Law
Page 4 of 5
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the forgoing document has been delivered
or forwarded to all counsel [ ] by personal delivery or receipted delivery service, or [ ] by
certified or registered mail, return receipt requested, by depositing the same, postpaid, in an
official deposit under the care and custody of the United States Postal Service, or [ ] by
facsimile to the recipient’s facsimile number identified below, or [ X ] by e-service to the
recipient’s email address identified below and the electronic transmission was reported as
complete, on this 20th day of February, 2023, in accordance with the Rule 21a of the TEXAS
RULES OF CIVIL PROCEDURE.
Via E-Service: mvarela@varela.law
MARIO VARELA
8554 Katy Freeway, Suite 340
Houston, Texas 77024
(713) 684-3550
Attorney for Third-Party Defendant
/s/ WALTER J. SCHOUTEN, JR.
___________________________________
WALTER J. SCHOUTEN, JR.
Morrison: Proposed Findings of Fact and Conclusions of Law
Page 5 of 5
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CLIANN HERRING IN THE DISTRICT COURT Plaintiff, 284TH JUDICIAL DISTRICT STEVEN MORRISON REYNIEL FUNDORA OF MONTGOMERY COUNTY, TEXAS STEVEN MORRISON’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Pursuant to the Court’s Docket Control Order, Defendant and Third-Party Plaintiff herein, STEVEN MORRISON, files these proposed findings of fact and conclusions of law: 1. Findings of Fact a. On April 12, 2021, Third Party Plaintiff, STEVEN MORRISON (herein “Morrison”), purchased a 2006 Stingray boat (herein the “Boat”) from Third Party REYNIEL FUNDORA (herein “Fundora”) for a purchase price of b. In connection with the purchase, Fundora made the following representations to Morrison intending that Morrison rely on them: i. that the Boat was in good working order and free of mechanical and electrical defects; and ii. that he had proper title to the Boat. c. Morrison relied on the foregoing representations in purchasing the Boat. d. Morrison delivered to Fundora the sum of $10,000.00, and Fundora delivered to e. On April 18, 2021, Morrison sold the Boat to Plaintiff, CLIANN HERRING (herein “Herring”) for a purchase price of $11,100.00. f. Thereafter, Morrison and Herring put the Boat on the water, but the boat would not run due to significant mechanical and electrical defects. Proposed Findings of Fact and Conclusions of Law g. Herring paid the sum of $6,303.16 to have the Boat repaired, and Morrison reimbursed her for this amount. h. Herring incurred $231.71 for the cost of the boat title and a $20.00 penalty for the expired title, and Morrison reimbursed her for these amounts. i. Herring incurred $3,500.00 in attorney fees in connection with the issues related to the Boat, and Morrison reimbursed her for these amounts. j. Morrison incurred no less than $6,586.72 in reasonable and necessary attorney fees and expenses in connection with this suit. k. On November 21, 2022, Fundora entered an appearance in the case. l. On December 6, 2022, Fundora, through his attorney of record, was served with a copy of the Court’s Docket Control Order of August 9, 2022. m. On January 4, 2023, Morrison, through his attorney of record, made demand on Fundora, through his attorney of record, for the just amount owed on Morrison’s claims. n. Payment for the just amount owed was not tendered on or before the 30th day after the claim was presented. 2. Conclusions of Law a. Breach of Contract i. Morrison and Fundora entered into a valid, binding, enforceable oral contract supported by consideration. ii. Morrison performed his obligations under the contract. iii. Fundora breached the contract by failing to provide valid title and by failing to deliver to Morrison a boat free of mechanical and electrical defects. In addition, Fundora breached his express warranties to Morrison that the boat was free of significant mechanical and electrical defects. iv. Fundora’s breaches caused foreseeable injury to Morrison, including: loss of the $10,000.00 purchase price; the cost of $6,306.16 in repairs; the cost of $251.71 to remedy title issues; payment of $3,500.00 to Herring’s attorney; and incurring $6,586.72 in reasonable and necessary attorney fees and expenses. Morrison is entitled to recover damages from Fundora of no less than $20,057.87, exclusive of Morrison’s attorney fees. Morrison: Proposed Findings of Fact and Conclusions of Law Page 2 of 5 v. Morrison’s attorney made demand on Fundora’s attorney for the just amount owed and complied with the requirements of Texas Civil Practice & Remedies Code Chapter 38, and the same was not paid. Morrison is entitled to recover from Fundora no less than $6,587.72 for reasonable and necessary attorney fees incurred in this case. b. Fraud i. Fundora falsely represented to Morrison that he had valid title to the Boat and that the Boat was free of defects. ii. Fundora intended that Morrison rely on these representations so that the Boat could be sold. iii. The representations were material, and Morrison justifiably relied on them. iv. Fundora knew that the representations were false or made them recklessly without regard to their truth. v. Alternatively, Fundora failed to disclose that he did not have good title and that the Boat had significant electrical and mechanical defects. vi. These facts were material to the transaction at issue, and Fundora knew Morrison would be ignorant of them and did not provide an equal opportunity to discover the truth. vii. Fundora deliberately remained silent and did not disclose the facts to Morrison, intending for Morrison to act without the information, and Morrison justifiably relied on Fundora’s failure to disclose these material facts. viii. Morrison was harmed as a direct and proximate cause of the false representations and concealed facts, including: loss of the $10,000.00 purchase price; the cost of $6,306.16 in repairs; the cost of $251.71 to remedy title issues; payment of $3,500.00 to Herring’s attorney; and incurring $6,586.72 in reasonable and necessary attorney fees and expenses. c. Negligent Misrepresentation i. Fundora represented to Morrison that the boat was free of mechanical or electrical defects, that the boat was fully operational, and that he had good and lawful title to the boat. ii. Fundora made these representations in the course of a transaction in which Morrison: Proposed Findings of Fact and Conclusions of Law Page 3 of 5 he had a pecuniary interest. iii. Fundora made the representation to Morrison to induce him to purchase the Boat. iv. These representations were obvious misstatements of fact and constituted a failure to disclose information that Fundora had a duty to disclose. v. Morrison justifiably relied on Fundora’s representations when purchasing the Boat, proximately causing the following damages loss of the $10,000.00 purchase price; the cost of $6,306.16 in repairs; the cost of $251.71 to remedy title issues; payment of $3,500.00 to Herring’s attorney; and incurring $6,586.72 in reasonable and necessary attorney fees and expenses. d. Exemplary Damages i. Morrison’s injuries resulted from Fundora’s actual fraud, gross negligence, or malice. ii. Fundora knowingly, intentionally, and maliciously made the representations described above. iii. Fundora was grossly negligent in the misrepresentations and omissions described above. iv. Morrison is entitled to exemplary damages in the amount of $20,000.00. Respectfully submitted, TOOMBS IMEL & ASSOCIATES, PLLC 777 Post Oak Blvd., Suite 950 Houston, Texas 77056 Tel: (713) 449-4958 walter@toombsimel.com /s/ Walter J. Schouten, Jr. By: Walter J. Schouten, Jr. State Bar No. 24077168 Attorney for STEVEN MORRISON Morrison: Proposed Findings of Fact and Conclusions of Law Page 4 of 5 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the forgoing document has been delivered or forwarded to all counsel [ ] by personal delivery or receipted delivery service, or [ ] by certified or registered mail, return receipt requested, by depositing the same, postpaid, in an official deposit under the care and custody of the United States Postal Service, or [ ] by facsimile to the recipient’s facsimile number identified below, or [ X ] by e-service to the recipient’s email address identified below and the electronic transmission was reported as complete, on this 20th day of February, 2023, in accordance with the Rule 21a of the TEXAS RULES OF CIVIL PROCEDURE. Via E-Service: mvarela@varela.law MARIO VARELA 8554 Katy Freeway, Suite 340 Houston, Texas 77024 (713) 684-3550 Attorney for Third-Party Defendant /s/ WALTER J. SCHOUTEN, JR. ___________________________________ WALTER J. SCHOUTEN, JR. Morrison: Proposed Findings of Fact and Conclusions of Law Page 5 of 5