Preview
21-06-07955
FRF, I ISTRICT OURT
RAIL LAZER UILDERS, LLC,
LAINTIFF
ONTGOMERY OUNTY EXAS
OUND ROPERTY
OUND ROPERTY
ISTRICT
LAINTIFFS UPPLEMENTAL ISCLOSURES
To April Sound Property Owners Association, Inc., a/k/a and d/b/a April Sound
Property Owners Association, by and through its counsel of record:
FRF, Inc. (“FRF”) and Trail Blazer Builder, LLC (“Trail Blazer”) now present their initial
disclosures pursuant to Texas Rule of Civil Procedure 194. Plaintiffs respectfully reserve the
right to amend and supplement these disclosures in the future as may be necessary or
/s/ James J. Burnett
James J. Burnett
The Law Office of James J. Burnett
Stafford, Texas 77477
Phone: 281.703.9097
Fax: 210.547.7841
jburnett@jamesburnett.com
I hereby certify that a true and correct copy of the foregoing, together with the following
specific disclosures, have been served upon the parties to be served or their duly authorized
agents or counsel of record, in a manner permitted by the Texas Rules of Civil Procedure, on
May 13, 2022.
/s/ James J. Burnett
James J. Burnett
Pursuant to TRCP 194.2(b)(1): The correct names of the parties to the lawsuit.
The parties appear to be named correctly.
Pursuant to TRCP 194.2(b)(2): The name, address, and telephone number of any
potential partieas.
Plaintiffs do not know of any potential parties at this time.
Pursuant to TRCP 194.2(b)(3): The legal theories and, in general, the factual bases
of the responding party’s claims or defenses (the responding party need not
marshal all evidence that may be offered at trial).
The factual basis and legal theories of Plaintiffs’ claims appear in Paragraphs 5 through
22 of Plaintiffs’ First Amended Petition.
In December 1995, FRF acquired the legal titles to a number of undeveloped properties
in the April Sound development in Montgomery County, Texas (“April Sound”). The POA is the
duly constituted association controlling, managing, and administering April Sound and all
individuals and entities acquiring interests in real estate in April Sound are subject to the POA’s
authority and the deed restrictions pertaining to April Sound. After it acquired its interests in
April Sound FRF assigned contracts for deed to various third parties. In order to receive deeds
to the respective properties, the third-party assignees must submit plans for their proposed
development of the respective tracts to the POA’s Architectural Control Committee (the “ACC”)
and receive approval of same from the ACC.
FRF has a duty and an unrestricted, exclusive right to issue approvals of all assignments
of contacts for deed. Those approvals make the parties whom FRF approves owners of equitable
interests in April Sound, which makes them responsible for the payment of their respective
portions of POA’s fees and which also entitles them to have access to the POA’s regular business
records. When FRF approves an assignment of an equitable interest it and/or the recipient
thereof notify the POA. Between 1995 and October, 2020, this was the established practice
between FRF and the POA, and the POA regularly and routinely approved of it.
Beginning in October, 2020, the POA began delaying and/or refusing its approval of
FRF’s assignments. It demanded and has continued to demand that it be provided with the
original contracts for deed and most recently for the “chain of title” of all these interests back to
the original holder of same, from which FRF acquired its interests. These demands are without
authority in, and are in violation of, the express restrictive covenants of April Sound (the
“Restrictive Covenants”). The POA’s refusal to approve FRF’s assignments has no authority in
the Restrictive Covenants, and is also a violation of the Restrictive Covenants.
The POA’s actions impaired and continue to impair FRF’s ownership, use, and
enjoyment of its interests and its ability to transfer same, and they also are impairing FRF’s
business operations. They have interfered and continue to interfere with FRF’s existing and
contemplated business relationships.
FRF issues assignments of the titles it acquired to various assignees, including without
limitation Trail Blazer, which is a residential home builder. FRF’s assignments make Trail Blazer
an owner of equitable interests in the tracts affected by the contracts. The assignments make
Trail Blazer responsible for paying relevant POA fees — which Trail Blazer has done and
continues to do — and entitles them access to the POA’s records. Trail Blazer, in turn, has
entered into agreements with third parties for the construction and sale of homes on the April
Sound tracts that are involved.
Plaintiffs’ Supplemental Disclosures
Trail Blazer has presented its assignments to the POA, but the POA has refused to accept
and approve the assignments as it should do. It has refused to change its records to reflect Trail
Blazer as having the sole equitable interest in the relevant tracts and has demanded, wrongfully,
that Trail Blazer present records listing a chain of title back to the original property owner.
The POA’s acts and omissions violate the express terms and conditions of the Covenants
and applicable Texas law. The POA violated the Covenants willfully and intentionally, or in the
alternative with reckless disregard of its responsibilities to Plaintiffs and of their rights. The
POA’s actions were fraudulent, malicious, and/or grossly negligent.
The POA’s acts and omissions not only violated the Covenants and state law, but
impaired and interfered with existing and future business transactions and relationships
between the Plaintiffs and third parties.
Pursuant to TRCP 194.2(b)(4): The amount and any method of calculating
economic damages.
FRF had several properties it assigned interests upon to Trail Blazer. Under its
agreement with Trail Blazer FRF was to receive a percentage of the profits when Trail Blazer
completed its constructions and the buyers received clear title. The POA’s refusal to accept the
assignments prevented those works from going forward. The total of lost profits to FRF for those
lots is $188,000.00. FRF also had an offer from a third party in respect of all its remaining lots,
but because it could not assure acceptance of the assignments the third party withdrew its offer.
That caused FRF to lose another $150,000.00 in profits.
Trail Blazer’s damages have three components. First, it was unreasonably delayed in
respect of five pending construction projects, which caused it to lose profits of $150,000.00.
Second, it obtained six more assignments through reversion when the assignees did not pay
their POA assessments, but because the POA would not accept the reversions building
opportunities were lost on those properties as well, totaling $286,000.00. Third, the delays
allowed increases in construction costs to occur; these equaled or exceeded $25,000.00.
The POA has also issued assessments of dues and other fees to the Plaintiffs that are
demonstrably incorrect and in many cases uncollectible. They are for periods far longer than the
statute of limitations permits. Plaintiffs have not yet determined the damage this is causing and
will supplement their disclosures when they do.
Pursuant to TRCP 194.2(b)(5): The name, address, and telephone number of
persons having knowledge of relevant facts, and a brief statement of each
identified person’s connection with the case.
Persons with knowledge of relevant facts include:
Harold Chamberlain of FRF, Inc., who may be contacted through the offices of Plaintiffs’
Gail Roberts and Steve Roberts of Trail Blazer, who may be contacted through the offices
of Plaintiffs’ counsel;
The members of the POA board of directors between December, 1995 and October,
2020, who are better known by Defendant than Plaintiffs, and whose identities Plaintiffs will
supplement when it obtains them from Defendant during discovery;
Plaintiffs’ Supplemental Disclosures
The members of the POA board of directors from October, 2020 through the present,
who are better known by Defendant than Plaintiffs, and whose identities Plaintiffs will
supplement when it obtains them from Defendant during discovery, and who have knowledge of
the POA’s acts and practices and its errors, omissions, and misconduct toward Plaintiffs;
Eric Tonsul, who may be contacted through the offices of Defendant’s counsel;
Brent Thor, whose address Plaintiffs are endeavoring to obtain, a former member of the
POA board, who has knowledge of how the POA was to treat assignment contracts like those
that are the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to
treat those contracts;
Mark Soderberg, 122 April Breeze, Montgomery, Texas 77356, a former member of the
POA board, who has knowledge of how the POA was to treat assignment contracts like those
that are the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to
treat those contracts;
Ed Kelly, 9177 Deepwater Drive, Montgomery, Texas 77356, a former member of the
POA board, who has knowledge of how the POA was to treat assignment contracts like those
that are the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to
treat those contracts;
Greg Upah, 115 Clear Springs, Montgomery, Texas 77356, a former member of the POA
board, who has knowledge of how the POA was to treat assignment contracts like those that are
the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to treat those
contracts; and
Any individuals identified by any party in discovery responses including without limitation their
initial and/or supplemental disclosures, or in deposition testimony, or in documents produced
by any party in this lawsuit.
Pursuant to TRCP 194.2(b)(6): A copy or a description by category and location of
all documents, electronically stored information, and tangible things that the
responding party has in its possession, custody, or control, and may use to support
its claims or defenses, unless the use would be solely for impeachment.
Documents relevant to this lawsuit include without limitation:
Assignments of equitable interests by FRF to Trail Blazer;
Assignments of equitable interests by FRF to other third parties;
Cover letters, introductory documents, and other explanatory documents presented by
Plaintiffs, or either of them, to the POA as part of seeking the POA’s performance of its legal
obligation to accept and record such assignments;
E-mails, letters, and other communications between Plaintiffs, or either of them, and the
POA or its agents or representatives in respect of the equitable interests or anything related to
them;
E-mails, letters, and other communications between Plaintiffs, or either of them, and any
other third parties in respect of assigning, transferring, selling, or otherwise disposing of
equitable interests, construction projects on the property involved, or sale or planned sale of the
properties;
Plaintiffs’ Supplemental Disclosures
POA assessment statements;
Any and all documents and tangible things produced by either party in discovery in this
lawsuit, including without limitation production in response to discovery requests, exhibits to
depositions, and any other form of disclosure and/or production from one party to the other;
1,120 pages of documents identified by Plaintiffs’ business records affidavits, which have
been identified and produced electronically to Defendant and which are available electronically
at the following Dropbox link:
https://www.dropbox.com/s/osxq9tzsyssh0ec/
2022-05-12%20Updated%20Documents.pdf?dl=0
Pursuant to TRCP 194.2(b)(7): Any indemnity and insuring agreements described
in Rule 192.3(f).
Plaintiffs do not know of any indemnity or insuring agreements.
Pursuant to TRCP 194.2(b)(8): Any settlement agreements described in Rule
192.3(g).
Plaintiffs do not know of any settlement agreements.
Pursuant to TRCP 194.2(b)(9): Any witness statements described in Rule 192.3(h).
Plaintiffs do not know of any witness statements other than the communications referred
, which may contain information qualifying as witness statements.
Pursuant to TRCP 194.2(b)(10): In a suit alleging physical or mental injury and damages
from the occurrence that is the subject of the case, all medical records and bills that are
reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization
permitting the disclosure of such medical records and bills.
Not applicable.
Pursuant to TRCP 194.2(b)(11): In a suit alleging physical or mental injury and damages
from the occurrence that is the subject of the case, all medical records and bills obtained by the
responding party by virtue of an authorization furnished by the requesting party.
Not applicable.
Pursuant to TRCP 194.2(b)(12): The name, address, and telephone number of any person
who may be designated as a responsible third party.
Plaintiffs’ Supplemental Disclosures
Preview
21-06-07955 FRF, I ISTRICT OURT RAIL LAZER UILDERS, LLC, LAINTIFF ONTGOMERY OUNTY EXAS OUND ROPERTY OUND ROPERTY ISTRICT LAINTIFFS UPPLEMENTAL ISCLOSURES To April Sound Property Owners Association, Inc., a/k/a and d/b/a April Sound Property Owners Association, by and through its counsel of record: FRF, Inc. (“FRF”) and Trail Blazer Builder, LLC (“Trail Blazer”) now present their initial disclosures pursuant to Texas Rule of Civil Procedure 194. Plaintiffs respectfully reserve the right to amend and supplement these disclosures in the future as may be necessary or /s/ James J. Burnett James J. Burnett The Law Office of James J. Burnett Stafford, Texas 77477 Phone: 281.703.9097 Fax: 210.547.7841 jburnett@jamesburnett.com I hereby certify that a true and correct copy of the foregoing, together with the following specific disclosures, have been served upon the parties to be served or their duly authorized agents or counsel of record, in a manner permitted by the Texas Rules of Civil Procedure, on May 13, 2022. /s/ James J. Burnett James J. Burnett Pursuant to TRCP 194.2(b)(1): The correct names of the parties to the lawsuit. The parties appear to be named correctly. Pursuant to TRCP 194.2(b)(2): The name, address, and telephone number of any potential partieas. Plaintiffs do not know of any potential parties at this time. Pursuant to TRCP 194.2(b)(3): The legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial). The factual basis and legal theories of Plaintiffs’ claims appear in Paragraphs 5 through 22 of Plaintiffs’ First Amended Petition. In December 1995, FRF acquired the legal titles to a number of undeveloped properties in the April Sound development in Montgomery County, Texas (“April Sound”). The POA is the duly constituted association controlling, managing, and administering April Sound and all individuals and entities acquiring interests in real estate in April Sound are subject to the POA’s authority and the deed restrictions pertaining to April Sound. After it acquired its interests in April Sound FRF assigned contracts for deed to various third parties. In order to receive deeds to the respective properties, the third-party assignees must submit plans for their proposed development of the respective tracts to the POA’s Architectural Control Committee (the “ACC”) and receive approval of same from the ACC. FRF has a duty and an unrestricted, exclusive right to issue approvals of all assignments of contacts for deed. Those approvals make the parties whom FRF approves owners of equitable interests in April Sound, which makes them responsible for the payment of their respective portions of POA’s fees and which also entitles them to have access to the POA’s regular business records. When FRF approves an assignment of an equitable interest it and/or the recipient thereof notify the POA. Between 1995 and October, 2020, this was the established practice between FRF and the POA, and the POA regularly and routinely approved of it. Beginning in October, 2020, the POA began delaying and/or refusing its approval of FRF’s assignments. It demanded and has continued to demand that it be provided with the original contracts for deed and most recently for the “chain of title” of all these interests back to the original holder of same, from which FRF acquired its interests. These demands are without authority in, and are in violation of, the express restrictive covenants of April Sound (the “Restrictive Covenants”). The POA’s refusal to approve FRF’s assignments has no authority in the Restrictive Covenants, and is also a violation of the Restrictive Covenants. The POA’s actions impaired and continue to impair FRF’s ownership, use, and enjoyment of its interests and its ability to transfer same, and they also are impairing FRF’s business operations. They have interfered and continue to interfere with FRF’s existing and contemplated business relationships. FRF issues assignments of the titles it acquired to various assignees, including without limitation Trail Blazer, which is a residential home builder. FRF’s assignments make Trail Blazer an owner of equitable interests in the tracts affected by the contracts. The assignments make Trail Blazer responsible for paying relevant POA fees — which Trail Blazer has done and continues to do — and entitles them access to the POA’s records. Trail Blazer, in turn, has entered into agreements with third parties for the construction and sale of homes on the April Sound tracts that are involved. Plaintiffs’ Supplemental Disclosures Trail Blazer has presented its assignments to the POA, but the POA has refused to accept and approve the assignments as it should do. It has refused to change its records to reflect Trail Blazer as having the sole equitable interest in the relevant tracts and has demanded, wrongfully, that Trail Blazer present records listing a chain of title back to the original property owner. The POA’s acts and omissions violate the express terms and conditions of the Covenants and applicable Texas law. The POA violated the Covenants willfully and intentionally, or in the alternative with reckless disregard of its responsibilities to Plaintiffs and of their rights. The POA’s actions were fraudulent, malicious, and/or grossly negligent. The POA’s acts and omissions not only violated the Covenants and state law, but impaired and interfered with existing and future business transactions and relationships between the Plaintiffs and third parties. Pursuant to TRCP 194.2(b)(4): The amount and any method of calculating economic damages. FRF had several properties it assigned interests upon to Trail Blazer. Under its agreement with Trail Blazer FRF was to receive a percentage of the profits when Trail Blazer completed its constructions and the buyers received clear title. The POA’s refusal to accept the assignments prevented those works from going forward. The total of lost profits to FRF for those lots is $188,000.00. FRF also had an offer from a third party in respect of all its remaining lots, but because it could not assure acceptance of the assignments the third party withdrew its offer. That caused FRF to lose another $150,000.00 in profits. Trail Blazer’s damages have three components. First, it was unreasonably delayed in respect of five pending construction projects, which caused it to lose profits of $150,000.00. Second, it obtained six more assignments through reversion when the assignees did not pay their POA assessments, but because the POA would not accept the reversions building opportunities were lost on those properties as well, totaling $286,000.00. Third, the delays allowed increases in construction costs to occur; these equaled or exceeded $25,000.00. The POA has also issued assessments of dues and other fees to the Plaintiffs that are demonstrably incorrect and in many cases uncollectible. They are for periods far longer than the statute of limitations permits. Plaintiffs have not yet determined the damage this is causing and will supplement their disclosures when they do. Pursuant to TRCP 194.2(b)(5): The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case. Persons with knowledge of relevant facts include: Harold Chamberlain of FRF, Inc., who may be contacted through the offices of Plaintiffs’ Gail Roberts and Steve Roberts of Trail Blazer, who may be contacted through the offices of Plaintiffs’ counsel; The members of the POA board of directors between December, 1995 and October, 2020, who are better known by Defendant than Plaintiffs, and whose identities Plaintiffs will supplement when it obtains them from Defendant during discovery; Plaintiffs’ Supplemental Disclosures The members of the POA board of directors from October, 2020 through the present, who are better known by Defendant than Plaintiffs, and whose identities Plaintiffs will supplement when it obtains them from Defendant during discovery, and who have knowledge of the POA’s acts and practices and its errors, omissions, and misconduct toward Plaintiffs; Eric Tonsul, who may be contacted through the offices of Defendant’s counsel; Brent Thor, whose address Plaintiffs are endeavoring to obtain, a former member of the POA board, who has knowledge of how the POA was to treat assignment contracts like those that are the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to treat those contracts; Mark Soderberg, 122 April Breeze, Montgomery, Texas 77356, a former member of the POA board, who has knowledge of how the POA was to treat assignment contracts like those that are the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to treat those contracts; Ed Kelly, 9177 Deepwater Drive, Montgomery, Texas 77356, a former member of the POA board, who has knowledge of how the POA was to treat assignment contracts like those that are the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to treat those contracts; Greg Upah, 115 Clear Springs, Montgomery, Texas 77356, a former member of the POA board, who has knowledge of how the POA was to treat assignment contracts like those that are the subject of this lawsuit, and who was instructed by the POA’s legal counsel how to treat those contracts; and Any individuals identified by any party in discovery responses including without limitation their initial and/or supplemental disclosures, or in deposition testimony, or in documents produced by any party in this lawsuit. Pursuant to TRCP 194.2(b)(6): A copy or a description by category and location of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment. Documents relevant to this lawsuit include without limitation: Assignments of equitable interests by FRF to Trail Blazer; Assignments of equitable interests by FRF to other third parties; Cover letters, introductory documents, and other explanatory documents presented by Plaintiffs, or either of them, to the POA as part of seeking the POA’s performance of its legal obligation to accept and record such assignments; E-mails, letters, and other communications between Plaintiffs, or either of them, and the POA or its agents or representatives in respect of the equitable interests or anything related to them; E-mails, letters, and other communications between Plaintiffs, or either of them, and any other third parties in respect of assigning, transferring, selling, or otherwise disposing of equitable interests, construction projects on the property involved, or sale or planned sale of the properties; Plaintiffs’ Supplemental Disclosures POA assessment statements; Any and all documents and tangible things produced by either party in discovery in this lawsuit, including without limitation production in response to discovery requests, exhibits to depositions, and any other form of disclosure and/or production from one party to the other; 1,120 pages of documents identified by Plaintiffs’ business records affidavits, which have been identified and produced electronically to Defendant and which are available electronically at the following Dropbox link: https://www.dropbox.com/s/osxq9tzsyssh0ec/ 2022-05-12%20Updated%20Documents.pdf?dl=0 Pursuant to TRCP 194.2(b)(7): Any indemnity and insuring agreements described in Rule 192.3(f). Plaintiffs do not know of any indemnity or insuring agreements. Pursuant to TRCP 194.2(b)(8): Any settlement agreements described in Rule 192.3(g). Plaintiffs do not know of any settlement agreements. Pursuant to TRCP 194.2(b)(9): Any witness statements described in Rule 192.3(h). Plaintiffs do not know of any witness statements other than the communications referred , which may contain information qualifying as witness statements. Pursuant to TRCP 194.2(b)(10): In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. Not applicable. Pursuant to TRCP 194.2(b)(11): In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party. Not applicable. Pursuant to TRCP 194.2(b)(12): The name, address, and telephone number of any person who may be designated as a responsible third party. Plaintiffs’ Supplemental Disclosures