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COMES NOW Plaintiff, NATHAN HATCHER, a
This is a very simple case that needs to be re
law is clear. Defendants have both Plaintiff’s money and his property. They owe the judgment. In
these times even more than ever, Plaintiff is in
attempt to throw the entire deposition transcript
summary judgment response was due in December, is untimely, repetitive, irrelevant, and simply
an attempt to cloud the issues by dumping the whole case into the summary judgment record
1. Defendants attempt to further delay
The submission date is timely. The requirement that party serve notice of summary
judgment hearing on opposing counsel at least 21 da
resetting of hearing, provided nonmovant received noti
party need only give reasonable notice. LeNotre v. Cohen, 979 S.W.2d 723 (Tex. App. 1998).
Plaintiff’s Motion for Summary Judgment was filed last November! It is ironic that Defendants
make this argument while filing his sur-reply late Friday night and setting it for submission
Monday. Plaintiff hereby objects to insufficient notice, as three days was not given as required, at
2) Defendants attempt to further delay justice on the merits by repeating their wrongful
technical nitpicking about the Petition, alleging that despite pleading breach of contract and
conversion, that Plaintiff should have also spelled out all of the elements and details of the
This baseless attempt to avoid the merits has already been thoroughly debunked in
Plaintiff’s Petition clearly pled breach of contract, conversion, and also spelled out that the
liability arose from taking possession of Plaintiff’s property and never conveyed it to Plaintiff.
This is more than is required.
“A bailment relationship does not create a specific cause of action but instead allows the
bailor to choose the form of relief for breach, such as an action for breach of contract or an action
, 993 S.W.2d 262, 269 (Tex.App.-
see also Prime Prods., Inc. v. SSI Plastics, Inc., 97 S.W.3d 631, 638
(Tex. App.—Houston [1st Dist.] 2002, pet. denied) (a bailment claim is not a separate cause of
action from a breach of contract claim). Bailment need not be plead expressly. . A bailor wins
either by showing that a bailment relationship existed; the goods were delivered to the bailee in
good condition; and that the goods were returned damaged or not at all. ., 97 S.W.3d at
D & D Assoc., Inc. v. Sierra Plastics, Inc., 570 S.W.2d 205, 207 (Tex. App.—Waco 1978, no
A review of Plaintiffs’ Petition clearly indicates that it pled both breach of contract and
Petition, pages 5-6. The Petition further states that “Defendants represented that
they would take possession of the items on behalf of Plaintiff… and have never conveyed the
Petition, page 3. Those are the elements of bailment.
Plaintiff’s pleadings clearly support bailment summary judgment and put Defendants on
notice of such claims. All that is required under notice pleading in Texas is that a cause of action
may be reasonably inferred from what is specifically stated in a Petition. See e.g. Boyles v. Kerr,
855 S.W.2d 593, 601 (Tex.1993).
3) Defendants repeat their attempt to create a disputed fact issue on formation of a
contract, when the undisputed summary judgment evidence of that formation are met by
The only relevant question is, did Pace agree to take delivery and transport and hold
property on behalf of Nathan, to be delivered to Nathan at some point in the future? Did Pace
deliver the property to Nathan?
The undisputed summary judgment evidence and admissions of Pace already establish the
answers to these questions. This is all that is required. See e.g. DeLaney v. Assured Self Storage
272 S.W.3d 837 (Tex. App.—Dallas 2008); FFE Transp. Services, Inc. v. Fulgham, 154 S.W.3d
Mr. Pace’s own testimony:
· ·
· · · ·
Deposition testimony of Defendant Bill Pace, Exhibit 1; all of the elements of bailment
are met by direct admission of Bill Pace. Bill Pace went to Tennessee personally to undertake this
transaction on Hatcher’s behalf. Pace personally took possession of Nathan’s property on Nathan’s
behalf, transported it back to Pace’s personal lot in Houston, knowing that Nathan could not take
possession immediately. Nathan never received
Defendants try to avoid their prior testimony and undisputed evidence and claim that
Pace already admitted that he never gave Plaintiff the property; that he stored it instead on
his own personal lot; and that he never tendered or told Plaintiff he could come take possession.
He further admitted that he knew that Plaintiff could not take possession until Plaintiff obtained his
ATF licensing, and then Pace completed the ATF transfer paperwork on behalf of Plaintiff; and
admitted that he never did any of that, . Pace still has the money. Pace still has the
paperwork. Pace still has the property, or claims to not know what happened to some of it. This is
the basis for summary judgment on bailment.
Trying to claim that he “tendered” possession of hundreds of thousands of dollars’ worth of
firearms which he personally kept some of; pers
the keys to his own employee; all when it would have been illegal to give the property to Plaintiff
at that time, is simply disingenuous. No other facts matter. It is undisputed that Pace has the
money. It is undisputed that Pace took personal possession on Nathan’s behalf. It is undisputed
that Pace never delivered the property, nor returned the money. What Pace or his employees
actually did amongst themselves doesn’t matter. Plaintiff is entitled to damages for bailment, as the
admitted agreement was not fulfilled.
Pace’s sworn testimony establishes admission of liability and undisputed facts as a matter
of law. His sham affidavit, filed months too late, cannot change that. “A party cannot file an
affidavit to contradict his own deposition testimony without any explanation for the change in the
testimony, for the purpose of creating a fact issue to avoid summary judgment. If a party's own
affidavit contradicts his earlier testimony, the affidavit must explain the reason for the change.
Without an explanation of the change in the testimony, we assume the sole purpose of the affidavit
was to avoid summary judgment. As such, it presents merely a “sham” fact issue, and is
inadmissible to create a fact issue where none truly exists. Farroux v. Denny’s Restaurants, Inc
962 S.W.2d 108 (Tex. App. — Houston [1st Dist.] 1997, no pet.); Lujan v. Navistar, Inc
S.W.3d 79 (Tex. 2018). Further, the sham “affidavits” and Exhibits Defendants attempt to late-file
are on improper declaration forms and do not constitute competent evidence on their face. Finally,
other than their facially self-serving contradiction to prior sworn testimony, they raise no material
Defendants’ summary judgment response and evidence was due in December. Defendants’
late-filed sur-reply and all declarations and evidence attached are untimely in March and not
competent summary judgment evidence. A trial court may only allow a late response to a motion
for summary judgment upon request for leave, and upon a showing of (1) good cause and (2) no
undue prejudice). Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011). Defendants made no motion
for leave, and have shown no good cause. There can’t be good cause, this Summary Judgment
Motion was filed in November. Plaintiff has waited for justice and is entitled to relief on the
merits. Defendants’ latest filing, and all purported evidence attached thereto, is untimely,
improper, and simply a diversionary tactic to attempt to delay justice even further.
The following elements of the Bailment agreement are undisputed:
It is undisputed that Bill Pace went to McKin’s shop in Tennessee on behalf of Nathan
Hatcher, and took delivery of McKin’s Connex full of firearms, on Nathan Hatcher’s behalf, after
payment from Hatcher to McKin. Deposition testimony of Bill Pace, attached as Exhibit 1;
Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons,
Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5.
It is undisputed that Bill Pace accepted delivery of McKin’s Connex full of firearms, on
Nathan’s behalf, and personally brought it back to his personally owned lot in Stafford, and stored
it for Hatcher. Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher,
Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony and
It is undisputed that Bill Pace agreed with Nathan Hatcher that he would return from
McKin’s lot, after payment by Nathan Hatcher, with McKin’s Connex full of firearms. It is
undisputed that Bill Pace personally arranged the transport of the Connex. It is undisputed that the
Parties agreed that Bill Pace would store the
Stafford, and to later deliver the property to Nathan Hatcher (upon Nathan acquiring his required
ATF licenses to take possession). Deposition testimony of Bill Pace, Exhibit 1; Affidavit of
Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory (reporting to Pace) employee Cris
Parsons, Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5.
(4) an understanding that the property will be returned to transferor or dealt with as the
It is undisputed that Bill Pace agreed to deliver the firearms to Nathan Hatcher upon
Hatcher’s receipt of his required NFA licenses. Deposition testimony of Bill Pace, Exhibit 1;
Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons,
Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5.
It is undisputed that Bill Pace accepted the property from David McKin on Hatcher’s behalf
in good condition. Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher,
Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony and
It is undisputed that Bill Pace failed to deliver the purchased property to Nathan Hatcher in
good condition. It is undisputed that Bill Pace failed to complete the paperwork required for
Hatcher to take possession of the property. Deposition testimony of Bill Pace, Exhibit 1;
Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons,
Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5.
It is undisputed that Nathan Hatcher paid $280,000.00, for the entire list of the McKin
collection, that he never received the property, suffered damages in the amount of $336,030.00 plus
interest, and attorney’s fees. See Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan
Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony
The summary judgment evidence conclusively proves the Plaintiff’s claims, and disproves
all essential elements of the Defendant Parties’ defenses as a matter of law. As a result, no material
issue of fact exists as to the cause of action herein plead, and the Movants are entitled to judgment
as a matter of law. , Inc., 907 S.W. 2d 742 (Tex. 1995).
WHEREFORE, Movant requests that the Court grant Plaintiff's Motion for Summary
Judgment as to all of the Plaintiff’s claims with respect to Movants causes of action as set forth
herein as to Defendants, WILLIAM PA
TECHONOLOGY GROUP, LLC AND ARMORY DEALER MANAGEMENT, INC., together the
1. Summary Judgment as requested above;
2. Prejudgment interest as provided by law;
3. Reasonable and Necessary Attorney's fees as proven herein;
4. Post-judgment interest as provided by law;
5. Costs of suit;
6. Such other and further relief to which the Movants may be justly entitled.
Respectfully submitted,
By: ___
Christopher B. Ramey
SBN: 00791480
215 S. 4th Street,
Wallis, Texas 77485
5150 Hardy Street
Houston, Texas 77009
713/974-1333 - Telephone
713/974-5333 – Facsimile
I hereby certify that a true and correct copy of the above document was served to all parties
of record, including the below listed counsel, on
________________________
Christopher Ramey
Preview
COMES NOW Plaintiff, NATHAN HATCHER, a This is a very simple case that needs to be re law is clear. Defendants have both Plaintiff’s money and his property. They owe the judgment. In these times even more than ever, Plaintiff is in attempt to throw the entire deposition transcript summary judgment response was due in December, is untimely, repetitive, irrelevant, and simply an attempt to cloud the issues by dumping the whole case into the summary judgment record 1. Defendants attempt to further delay The submission date is timely. The requirement that party serve notice of summary judgment hearing on opposing counsel at least 21 da resetting of hearing, provided nonmovant received noti party need only give reasonable notice. LeNotre v. Cohen, 979 S.W.2d 723 (Tex. App. 1998). Plaintiff’s Motion for Summary Judgment was filed last November! It is ironic that Defendants make this argument while filing his sur-reply late Friday night and setting it for submission Monday. Plaintiff hereby objects to insufficient notice, as three days was not given as required, at 2) Defendants attempt to further delay justice on the merits by repeating their wrongful technical nitpicking about the Petition, alleging that despite pleading breach of contract and conversion, that Plaintiff should have also spelled out all of the elements and details of the This baseless attempt to avoid the merits has already been thoroughly debunked in Plaintiff’s Petition clearly pled breach of contract, conversion, and also spelled out that the liability arose from taking possession of Plaintiff’s property and never conveyed it to Plaintiff. This is more than is required. “A bailment relationship does not create a specific cause of action but instead allows the bailor to choose the form of relief for breach, such as an action for breach of contract or an action , 993 S.W.2d 262, 269 (Tex.App.- see also Prime Prods., Inc. v. SSI Plastics, Inc., 97 S.W.3d 631, 638 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (a bailment claim is not a separate cause of action from a breach of contract claim). Bailment need not be plead expressly. . A bailor wins either by showing that a bailment relationship existed; the goods were delivered to the bailee in good condition; and that the goods were returned damaged or not at all. ., 97 S.W.3d at D & D Assoc., Inc. v. Sierra Plastics, Inc., 570 S.W.2d 205, 207 (Tex. App.—Waco 1978, no A review of Plaintiffs’ Petition clearly indicates that it pled both breach of contract and Petition, pages 5-6. The Petition further states that “Defendants represented that they would take possession of the items on behalf of Plaintiff… and have never conveyed the Petition, page 3. Those are the elements of bailment. Plaintiff’s pleadings clearly support bailment summary judgment and put Defendants on notice of such claims. All that is required under notice pleading in Texas is that a cause of action may be reasonably inferred from what is specifically stated in a Petition. See e.g. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993). 3) Defendants repeat their attempt to create a disputed fact issue on formation of a contract, when the undisputed summary judgment evidence of that formation are met by The only relevant question is, did Pace agree to take delivery and transport and hold property on behalf of Nathan, to be delivered to Nathan at some point in the future? Did Pace deliver the property to Nathan? The undisputed summary judgment evidence and admissions of Pace already establish the answers to these questions. This is all that is required. See e.g. DeLaney v. Assured Self Storage 272 S.W.3d 837 (Tex. App.—Dallas 2008); FFE Transp. Services, Inc. v. Fulgham, 154 S.W.3d Mr. Pace’s own testimony: · · · · · · Deposition testimony of Defendant Bill Pace, Exhibit 1; all of the elements of bailment are met by direct admission of Bill Pace. Bill Pace went to Tennessee personally to undertake this transaction on Hatcher’s behalf. Pace personally took possession of Nathan’s property on Nathan’s behalf, transported it back to Pace’s personal lot in Houston, knowing that Nathan could not take possession immediately. Nathan never received Defendants try to avoid their prior testimony and undisputed evidence and claim that Pace already admitted that he never gave Plaintiff the property; that he stored it instead on his own personal lot; and that he never tendered or told Plaintiff he could come take possession. He further admitted that he knew that Plaintiff could not take possession until Plaintiff obtained his ATF licensing, and then Pace completed the ATF transfer paperwork on behalf of Plaintiff; and admitted that he never did any of that, . Pace still has the money. Pace still has the paperwork. Pace still has the property, or claims to not know what happened to some of it. This is the basis for summary judgment on bailment. Trying to claim that he “tendered” possession of hundreds of thousands of dollars’ worth of firearms which he personally kept some of; pers the keys to his own employee; all when it would have been illegal to give the property to Plaintiff at that time, is simply disingenuous. No other facts matter. It is undisputed that Pace has the money. It is undisputed that Pace took personal possession on Nathan’s behalf. It is undisputed that Pace never delivered the property, nor returned the money. What Pace or his employees actually did amongst themselves doesn’t matter. Plaintiff is entitled to damages for bailment, as the admitted agreement was not fulfilled. Pace’s sworn testimony establishes admission of liability and undisputed facts as a matter of law. His sham affidavit, filed months too late, cannot change that. “A party cannot file an affidavit to contradict his own deposition testimony without any explanation for the change in the testimony, for the purpose of creating a fact issue to avoid summary judgment. If a party's own affidavit contradicts his earlier testimony, the affidavit must explain the reason for the change. Without an explanation of the change in the testimony, we assume the sole purpose of the affidavit was to avoid summary judgment. As such, it presents merely a “sham” fact issue, and is inadmissible to create a fact issue where none truly exists. Farroux v. Denny’s Restaurants, Inc 962 S.W.2d 108 (Tex. App. — Houston [1st Dist.] 1997, no pet.); Lujan v. Navistar, Inc S.W.3d 79 (Tex. 2018). Further, the sham “affidavits” and Exhibits Defendants attempt to late-file are on improper declaration forms and do not constitute competent evidence on their face. Finally, other than their facially self-serving contradiction to prior sworn testimony, they raise no material Defendants’ summary judgment response and evidence was due in December. Defendants’ late-filed sur-reply and all declarations and evidence attached are untimely in March and not competent summary judgment evidence. A trial court may only allow a late response to a motion for summary judgment upon request for leave, and upon a showing of (1) good cause and (2) no undue prejudice). Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011). Defendants made no motion for leave, and have shown no good cause. There can’t be good cause, this Summary Judgment Motion was filed in November. Plaintiff has waited for justice and is entitled to relief on the merits. Defendants’ latest filing, and all purported evidence attached thereto, is untimely, improper, and simply a diversionary tactic to attempt to delay justice even further. The following elements of the Bailment agreement are undisputed: It is undisputed that Bill Pace went to McKin’s shop in Tennessee on behalf of Nathan Hatcher, and took delivery of McKin’s Connex full of firearms, on Nathan Hatcher’s behalf, after payment from Hatcher to McKin. Deposition testimony of Bill Pace, attached as Exhibit 1; Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5. It is undisputed that Bill Pace accepted delivery of McKin’s Connex full of firearms, on Nathan’s behalf, and personally brought it back to his personally owned lot in Stafford, and stored it for Hatcher. Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony and It is undisputed that Bill Pace agreed with Nathan Hatcher that he would return from McKin’s lot, after payment by Nathan Hatcher, with McKin’s Connex full of firearms. It is undisputed that Bill Pace personally arranged the transport of the Connex. It is undisputed that the Parties agreed that Bill Pace would store the Stafford, and to later deliver the property to Nathan Hatcher (upon Nathan acquiring his required ATF licenses to take possession). Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory (reporting to Pace) employee Cris Parsons, Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5. (4) an understanding that the property will be returned to transferor or dealt with as the It is undisputed that Bill Pace agreed to deliver the firearms to Nathan Hatcher upon Hatcher’s receipt of his required NFA licenses. Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5. It is undisputed that Bill Pace accepted the property from David McKin on Hatcher’s behalf in good condition. Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony and It is undisputed that Bill Pace failed to deliver the purchased property to Nathan Hatcher in good condition. It is undisputed that Bill Pace failed to complete the paperwork required for Hatcher to take possession of the property. Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony and affidavit of David McKin, Exhibits 4 and 5. It is undisputed that Nathan Hatcher paid $280,000.00, for the entire list of the McKin collection, that he never received the property, suffered damages in the amount of $336,030.00 plus interest, and attorney’s fees. See Deposition testimony of Bill Pace, Exhibit 1; Affidavit of Nathan Hatcher, Exhibit 2; Affidavit of Houston Armory employee Cris Parsons, Exhibit 3; Testimony The summary judgment evidence conclusively proves the Plaintiff’s claims, and disproves all essential elements of the Defendant Parties’ defenses as a matter of law. As a result, no material issue of fact exists as to the cause of action herein plead, and the Movants are entitled to judgment as a matter of law. , Inc., 907 S.W. 2d 742 (Tex. 1995). WHEREFORE, Movant requests that the Court grant Plaintiff's Motion for Summary Judgment as to all of the Plaintiff’s claims with respect to Movants causes of action as set forth herein as to Defendants, WILLIAM PA TECHONOLOGY GROUP, LLC AND ARMORY DEALER MANAGEMENT, INC., together the 1. Summary Judgment as requested above; 2. Prejudgment interest as provided by law; 3. Reasonable and Necessary Attorney's fees as proven herein; 4. Post-judgment interest as provided by law; 5. Costs of suit; 6. Such other and further relief to which the Movants may be justly entitled. Respectfully submitted, By: ___ Christopher B. Ramey SBN: 00791480 215 S. 4th Street, Wallis, Texas 77485 5150 Hardy Street Houston, Texas 77009 713/974-1333 - Telephone 713/974-5333 – Facsimile I hereby certify that a true and correct copy of the above document was served to all parties of record, including the below listed counsel, on ________________________ Christopher Ramey