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CAUSE NO. 20-03-04222
ERT WILLIAMS AND MICHELLE E DISTRICT COURT OF
AMS
MONTGOMERY COUNTY, TEXAS
. §
ISION HOMES CUSTOM
ILDERS, ., JW CLOVIS III,
D., AND JW CONROE I, LTD.
dants. ICIAL DISTRICT
CLOVIS III, LTD.’S SECOND AMENDED ANSWER
O THE HONORABLE JUDGE OF SAID COURT:
Defendant JW Clovis III, Ltd. (“JW Clovis”) files this Second Amended Answer to
Plaintiffs Robert Williams’ and Michelle Williams’ (collectively “Plaintiffs”) Fifth Amended
Petition and Request for Disclosures (the “Petition”) and would respectfully show as
follows:
I.
GENERAL DENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, JW Clovis denies the
material allegations made in the Petition, and any petition that may be filed hereinafter by
way of amendment or supplement, and demands strict proof thereof by a preponderance
of the evidence at trial.
II.
AFFIRMATIVE DEFENSES
and without waiving the foregoing defenses, JW Clovis asserts the
following affirmative defenses pursuant to Rule 94 of the Texas Rules of Civil Procedure:
1. Conditions Precedent. Pursuant to Rule 54 of the Texas Rules of
Civil Procedure, JW Clovis denies that all conditions precedent were
efendant JW Clovis III, Ltd.’s Second Amended Answer Page 1
performed or have occurred.
2. Waiver. Pleading further and in the alternative, Plaintiffs’ claims are
barred, in whole or in part, by waiver.
3. Estoppel. Pleading further and in the alternative, Plaintiffs’ claims are
barred, in whole or in part, by the doctrines of equitable estoppel, quasi-
estoppel and/or estoppel.
4. Election of Remedies. Pleading further and in the alternative,
Plaintiffs’ claims are barred, in whole or in part, by the doctrine of election
of remedies.
5. Failure to Mitigate. Pleading further and in the alternative, Plaintiffs’
claims are barred in whole or in part by Plaintiffs’ failure to mitigate their
damages, if any, by agreeing to the essential terms of the easement
agreement offered to them.
6. Statutes of Limitation. Pleading further and in the alternative,
Plaintiffs’ trespass claims are barred, in whole or in part, by the applicable
statutes of limitation.
7. Lack of Capacity. Pleading further and in the alternative, Plaintiffs’
claims are barred, in whole or in part, because Plaintiffs lack capacity to
enforce the Easement Agreement executed between Marshall Holloman
and Bethine Smith.
8. Lack of Standing. Pleading further and in the alternative, Plaintiffs’
claims are barred, in whole or in part, because Plaintiffs lack standing to
enforce the Easement Agreement executed between Marshall Holloman
Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 2
and Bethine Smith.
9. Pleading further and in the alternative, Plaintiffs’ claims are barred,
in whole or in part, because Plaintiffs were neither parties to, nor intended
third-party beneficiaries of, the Easement Agreement executed between
Marshall Holloman and Bethine Smith.
10. Pleading further and in the alternative, Plaintiffs’ claims are barred,
in whole or in part, due to Bethine Smith’s material breach of the Easement
Agreement executed between Marshall Holloman and Bethine Smith.
11. Pleading further and in the alternative, Plaintiffs’ claims are barred,
in whole or in part, due to the failure of a condition subsequent in the
Easement Agreement executed between Marshall Holloman and Bethine
Smith.
12. Pleading further and in the alternative, Plaintiffs’ claims are barred,
in whole or in part, due to the failure of a conditional limitation in the
Easement Agreement executed between Marshall Holloman and Bethine
Smith.
13. Pleading further and in the alternative, Plaintiffs’ claims are barred,
in whole or in part, by the applicable Statute of Frauds.
14. Pleading further and in the alternative, Plaintiffs’ claims are barred,
in whole or in part, due to the failure of consideration for the Easement
Agreement executed between Marshall Holloman and Bethine Smith.
15. Pleading further and in the alternative, Plaintiffs’ claims are barred,
in whole or in part, because the Easement Agreement executed between
Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 3
Marshall Holloman and Bethine Smith was terminated by Bethine Smith’s
failure to perform her obligation of constructing on the access easement
property a blacktop road that would meet Montgomery County
specifications within twelve months from the date of the easement
agreement.
III.
CLAIM FOR ATTORNEY’S FEES
JW Clovis has incurred reasonable and necessary attorneys’ fees in defense of
Plaintiffs’ claims seeking declaratory relief. Accordingly, pursuant to Tex. Civ. Prac. &
Rem. Code § 37.009, JW Clovis asserts a counterclaim against Plaintiffs for recovery of
its reasonable and necessary attorneys’ fees that are “equitable and just” in defending
Plaintiffs’ claims for declaratory relief. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d
912, 916 (Tex. 2015).
IV.
PRAYER
WHEREFORE, PREMISES CONSIDERED, JW Clovis respectfully prays that the
Plaintiffs take nothing, that it be awarded its reasonable and necessary attorneys’ fees in
defending Plaintiffs’ claims, that all costs be taxed against Plaintiffs, and that it have and
recover such other relief to which it may be entitled.
Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 4
Respectfully submitted,
IRELAN MCDANIEL, P.L.L.C.
By: /s/ Bradford W. Irelan
Bradford W. Irelan
State Bar No: 10411550
birelan@IMTexasLaw.com
Jeffrey M. Smith
Texas Stare Bar No. 24073543
jsmith@IMTexasLaw.com
2520 Caroline, 2nd Floor
Houston, Texas 77004
Telephone: 713-222-7666
Facsimile: 713-222-7669
ATTORNEYS FOR DEFENDANTS JW CLOVIS
III, LTD., AND JW CONROE I, LTD.
CERTIFICATE OF SERVICE
I hereby certify that service of this instrument was made in accordance with the
Texas Rules of Civil Procedure on the 27th day of January, 2021 as follows:
Via: E-Service
Via: E-Service
Travis Owens
Bruce C. Tough
Owens Law Group, P.L.L.C.
TOUGH LAW FIRM, PLLC
P.O. Box 8605
819 Crossbridge
The Woodlands, TX 77387
Spring, Texas 77373
travis@owens-lawgroup.com
btough@toughlawfirm.net
ATTORNEY FOR DEFENDANT
ATTORNEYS FOR PLAINTIFFS
PRECISION HOMES CUSTOM
ROBERT AND MICHELLE WILLIAMS
BUILDERS, INC.
/s/ Jeffrey M. Smith
Jeffrey M. Smith
Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 5
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CAUSE NO. 20-03-04222 ERT WILLIAMS AND MICHELLE E DISTRICT COURT OF AMS MONTGOMERY COUNTY, TEXAS . § ISION HOMES CUSTOM ILDERS, ., JW CLOVIS III, D., AND JW CONROE I, LTD. dants. ICIAL DISTRICT CLOVIS III, LTD.’S SECOND AMENDED ANSWER O THE HONORABLE JUDGE OF SAID COURT: Defendant JW Clovis III, Ltd. (“JW Clovis”) files this Second Amended Answer to Plaintiffs Robert Williams’ and Michelle Williams’ (collectively “Plaintiffs”) Fifth Amended Petition and Request for Disclosures (the “Petition”) and would respectfully show as follows: I. GENERAL DENIAL Pursuant to Rule 92 of the Texas Rules of Civil Procedure, JW Clovis denies the material allegations made in the Petition, and any petition that may be filed hereinafter by way of amendment or supplement, and demands strict proof thereof by a preponderance of the evidence at trial. II. AFFIRMATIVE DEFENSES and without waiving the foregoing defenses, JW Clovis asserts the following affirmative defenses pursuant to Rule 94 of the Texas Rules of Civil Procedure: 1. Conditions Precedent. Pursuant to Rule 54 of the Texas Rules of Civil Procedure, JW Clovis denies that all conditions precedent were efendant JW Clovis III, Ltd.’s Second Amended Answer Page 1 performed or have occurred. 2. Waiver. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, by waiver. 3. Estoppel. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, by the doctrines of equitable estoppel, quasi- estoppel and/or estoppel. 4. Election of Remedies. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, by the doctrine of election of remedies. 5. Failure to Mitigate. Pleading further and in the alternative, Plaintiffs’ claims are barred in whole or in part by Plaintiffs’ failure to mitigate their damages, if any, by agreeing to the essential terms of the easement agreement offered to them. 6. Statutes of Limitation. Pleading further and in the alternative, Plaintiffs’ trespass claims are barred, in whole or in part, by the applicable statutes of limitation. 7. Lack of Capacity. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs lack capacity to enforce the Easement Agreement executed between Marshall Holloman and Bethine Smith. 8. Lack of Standing. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs lack standing to enforce the Easement Agreement executed between Marshall Holloman Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 2 and Bethine Smith. 9. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs were neither parties to, nor intended third-party beneficiaries of, the Easement Agreement executed between Marshall Holloman and Bethine Smith. 10. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, due to Bethine Smith’s material breach of the Easement Agreement executed between Marshall Holloman and Bethine Smith. 11. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, due to the failure of a condition subsequent in the Easement Agreement executed between Marshall Holloman and Bethine Smith. 12. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, due to the failure of a conditional limitation in the Easement Agreement executed between Marshall Holloman and Bethine Smith. 13. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, by the applicable Statute of Frauds. 14. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, due to the failure of consideration for the Easement Agreement executed between Marshall Holloman and Bethine Smith. 15. Pleading further and in the alternative, Plaintiffs’ claims are barred, in whole or in part, because the Easement Agreement executed between Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 3 Marshall Holloman and Bethine Smith was terminated by Bethine Smith’s failure to perform her obligation of constructing on the access easement property a blacktop road that would meet Montgomery County specifications within twelve months from the date of the easement agreement. III. CLAIM FOR ATTORNEY’S FEES JW Clovis has incurred reasonable and necessary attorneys’ fees in defense of Plaintiffs’ claims seeking declaratory relief. Accordingly, pursuant to Tex. Civ. Prac. & Rem. Code § 37.009, JW Clovis asserts a counterclaim against Plaintiffs for recovery of its reasonable and necessary attorneys’ fees that are “equitable and just” in defending Plaintiffs’ claims for declaratory relief. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015). IV. PRAYER WHEREFORE, PREMISES CONSIDERED, JW Clovis respectfully prays that the Plaintiffs take nothing, that it be awarded its reasonable and necessary attorneys’ fees in defending Plaintiffs’ claims, that all costs be taxed against Plaintiffs, and that it have and recover such other relief to which it may be entitled. Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 4 Respectfully submitted, IRELAN MCDANIEL, P.L.L.C. By: /s/ Bradford W. Irelan Bradford W. Irelan State Bar No: 10411550 birelan@IMTexasLaw.com Jeffrey M. Smith Texas Stare Bar No. 24073543 jsmith@IMTexasLaw.com 2520 Caroline, 2nd Floor Houston, Texas 77004 Telephone: 713-222-7666 Facsimile: 713-222-7669 ATTORNEYS FOR DEFENDANTS JW CLOVIS III, LTD., AND JW CONROE I, LTD. CERTIFICATE OF SERVICE I hereby certify that service of this instrument was made in accordance with the Texas Rules of Civil Procedure on the 27th day of January, 2021 as follows: Via: E-Service Via: E-Service Travis Owens Bruce C. Tough Owens Law Group, P.L.L.C. TOUGH LAW FIRM, PLLC P.O. Box 8605 819 Crossbridge The Woodlands, TX 77387 Spring, Texas 77373 travis@owens-lawgroup.com btough@toughlawfirm.net ATTORNEY FOR DEFENDANT ATTORNEYS FOR PLAINTIFFS PRECISION HOMES CUSTOM ROBERT AND MICHELLE WILLIAMS BUILDERS, INC. /s/ Jeffrey M. Smith Jeffrey M. Smith Defendant JW Clovis III, Ltd.’s Second Amended Answer Page 5