Preview
FILED
DALLAS COUNTY
6/29/2018 2:46 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-16-07431
CANDACE S. SCHIFF § IN THE DISTRICT COURT
§
Plaintiff, §
§
§
v. § DALLAS COUNTY, TEXAS
JOHN ALEXANDER INVESTMENTS, INC.§
and LARRY ALEXANDER, §
INDIVIDUALLY AND D/B/A ARCHWAY §
HOMES, AS THE GENERAL §
CONTRACTOR §
§
Defendants. § 160TH JUDICIAL DISTRICT
DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY
HOMES’S SECOND SUPPLEMENTS TO HIS ANSWERS AND AFFIRMATIVE
DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant Larry Alexander, Individually and d/b/a Archway Homes
(hereinafter “Archway”), Defendant in the above numbered cause, and files and submits his
Second Supplements to his Answers and Affirmative Defenses and First Supplement to his
Counterclaims. In support thereof, Archway shows this Court as follows:
I. ARCHWAY’S SUPPLEMENTAL AFFIRMATIVE DEFENSES
1. Pleading further, affirmatively and in the alternative, Defendant would plead
Plaintiff’s claims are barred in whole or in part due to her failure to comply with one and/or all of
the applicable statutes of limitations.
2. Pleading further, affirmatively and in the alternative, Defendant pleads that Plaintiff
is at fault for her alleged injuries and damages and that Archway is entitled to a comparative
responsibility instruction as to Plaintiff under Chapter 33 of the Texas Civil Practice and Remedies
DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS
ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 1
Code. Plaintiff’s comparative responsibility/negligence was the sole cause and/or proximate cause
of the alleged harm of which Plaintiff complains.
3. Pleading further, affirmatively and in the alternative, Defendant pleads that he acted
in good faith reliance on counsel.
4. Pleading further, affirmatively and in the alternative, Defendant pleads that some
and/or all of his alleged acts are subject to judicial privilege.
5. Pleading further, affirmatively and in the alternative, Defendant pleads that he is a
bona fide purchaser.
6. Pleading further, affirmatively and in the alternative, Defendant would show that
Plaintiff has failed to mitigate her damages as a reasonably prudent person would have done under
the same or similar circumstances and that such failure to mitigate damages is the sole cause, or
the proximate cause, of Plaintiff’s harm and/or damages, if any.
7. Pleading further, affirmatively and in the alternative, Defendant pleads that any
alleged acts/omissions on his part were the result of a qualified good faith refusal.
8. Pleading further, affirmatively and in the alternative, Defendant pleads that he has
a superior title and/or right to possess the property in dispute.
9. Pleading further, affirmatively and in the alternative, Defendant pleads that any
alleged acts/omissions on his part were the result of a bona fide dispute with Plaintiff.
10. Pleading further, affirmatively and in the alternative, Defendant pleads that any
alleged acts/omissions on his part were the result of a mistake or accident.
11. Pleading further, affirmatively and in the alternative, Defendant pleads that Plaintiff
has unclean hands.
DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS
ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 2
12. Pleading further, affirmatively and in the alternative, Defendant pleads that the
relief sought by Plaintiff would cause him an undue hardship.
13. Pleading further, affirmatively and in the alternative, Defendant pleads that
together, Defendant and Plaintiff, adversely possessed the property identified by Plaintiff as the
“Realty Triangle” and also commonly referred to as the “River Tract” as to the world and own it
jointly in undivided interests in a tenancy in common.
14. Defendant would assert that the court should instruct the jury as to whether any
recoveries sought by Plaintiff are subject to federal or state income taxes.
15. Defendant would assert that the court should instruct the jury that a spouse, cannot
by reason of marriage, sell, convey, or encumber homestead property without the joinder of the
other spouse.
16. In the unlikely event of any recovery whatsoever by the Plaintiff, Defendant
affirmatively plead the provisions of the Texas Finance Code and would show that the recovery
of pre-judgment and post-judgment interest is subject to and limited by the provisions thereof,
including and not limited to Sections 304.003, 304.005, 304.103, 304.104, 304.1045, 304.105,
304.107 and/or TEX. CIV. PRAC. & REM. CODE Chapter 41.
17. Defendant further alleges Plaintiff's claim for pre-judgment interest is limited by
the dates and amounts set forth in the following:
• Art. 5069-1.05 § 6, Tex. R. Civ. Stat;
• Chapter 304, Tex. Fin. Code; and
• Chapter 41, Tex. Civ. Prac. & Rem. Code
DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS
ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 3
II. ARCHWAY’S SUPPLEMENTAL COUNTERCLAIMS
A. Partition
18. Pleading further, affirmatively and in the alternative, Defendant pleads that
together, Defendant and Plaintiff, adversely possessed the property identified by Plaintiff as the
“Realty Triangle” and also commonly referred to as the “River Tract” as to the world and own it
jointly in undivided interests in a tenancy in common for which Defendant now seeks a partition
under Texas Property Code §§ 23.001 et seq. The “River Tract” is more specifically described
as follows:
BEING A TRACT OR PARCEL OF LAND situated in the City of Dallas, Dallas
County, Texas; and being part of Block 2974, more particularly described as follows:
BEGINNING at a point for corner at the Northeasterly corner of Revised Bob-O-
Links Estates, and addition to the City of Dallas as recorded in Volume 73241,
Page 1507, of the Map and Deed Records of Dallas County, Texas, said point
being North 0° 20' 40" East a distance of 39.13 feet from the most Northeasterly
corner of Lot 20, Block B/2974, of said Bob-O-Links Estates;
THENCE North 59° 18' 00" West along a Northeasterly line of said Bob-O-Links
Estates a distance of 157.60 feet to a point for corner;
THENCE South 77° 29' 00' East along the Southerly line of Lot 7, Block K/2984
of the Temple Phinney Subdivision as recorded in Volume 12, Page 111, of the
Map and Deed Records of Dallas County, Texas, a distance of 92.50 feet to an
angle point;
THENCE South 62° 45' 00" East continuing along the Southerly line of said Lot
7, a distance of 50.60 feet to a point for corner;
THENCE South 0° 20' 40' East along a Westerly line of said Lot 7 a distance of
32.25 feet to the POINT OF BEGINNING and containing 3,022 square feet or
0.0714 acres.
III. NOTICE OF DOUCMENTS TO BE USED AT TRIAL
19. Pursuant to TEX. R. Civ. P. 193.7, Defendant hereby notifies Plaintiff of Defendant’s
intent to use all documents exchanged and produced between the parties including, but not
limited to, correspondence, discovery responses, and deposition testimony and exhibits during
the trial of this matter and in any motions for summary judgment.
DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS
ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 4
V. JURY DEMAND
Defendant would show a demand for trial by jury has been made and the requisite fee has
been tendered to the Clerk of the Court.
VI. PRAYER AND CONCLUSION
FOR THESE REASONS, Defendant Archway respectfully prays that Plaintiff Schiff be denied
the relief sought in her petition; that Plaintiff take nothing against this Defendant and that Judgment
be entered and rendered for Defendant; that Defendant recover all costs of court and its reasonable
attorney’s fees; that Defendant have such other and further relief, general or special, legal or
equitable, to which it is justly entitled.
Respectfully submitted,
REID & DENNIS, P.C.
/s/ Steve Dennis
By: _________________________
STEVE DENNIS
State Bar No. 00798143
sdennis@reiddennis.com
Tollway Towers South, Suite 1400
15660 Dallas Parkway
Dallas, Texas 75248-3328
Telephone: (972) 991-2626
Facsimile: (972) 991-2678
ATTORNEYS FOR DEFENDANT
LARRY ALEXANDER, INDIVIDUALLY AND
D/B/A ARCHWAY HOMES
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument was forwarded to
Plaintiff’s counsel of record on this the 12th of June 2018, in accordance with the Texas Rules of
Civil Procedure:
/s/ Steve Dennis
_____________________________________
Steve Dennis
DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS
ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 5
Preview
FILED DALLAS COUNTY 6/29/2018 2:46 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-16-07431 CANDACE S. SCHIFF § IN THE DISTRICT COURT § Plaintiff, § § § v. § DALLAS COUNTY, TEXAS JOHN ALEXANDER INVESTMENTS, INC.§ and LARRY ALEXANDER, § INDIVIDUALLY AND D/B/A ARCHWAY § HOMES, AS THE GENERAL § CONTRACTOR § § Defendants. § 160TH JUDICIAL DISTRICT DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant Larry Alexander, Individually and d/b/a Archway Homes (hereinafter “Archway”), Defendant in the above numbered cause, and files and submits his Second Supplements to his Answers and Affirmative Defenses and First Supplement to his Counterclaims. In support thereof, Archway shows this Court as follows: I. ARCHWAY’S SUPPLEMENTAL AFFIRMATIVE DEFENSES 1. Pleading further, affirmatively and in the alternative, Defendant would plead Plaintiff’s claims are barred in whole or in part due to her failure to comply with one and/or all of the applicable statutes of limitations. 2. Pleading further, affirmatively and in the alternative, Defendant pleads that Plaintiff is at fault for her alleged injuries and damages and that Archway is entitled to a comparative responsibility instruction as to Plaintiff under Chapter 33 of the Texas Civil Practice and Remedies DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 1 Code. Plaintiff’s comparative responsibility/negligence was the sole cause and/or proximate cause of the alleged harm of which Plaintiff complains. 3. Pleading further, affirmatively and in the alternative, Defendant pleads that he acted in good faith reliance on counsel. 4. Pleading further, affirmatively and in the alternative, Defendant pleads that some and/or all of his alleged acts are subject to judicial privilege. 5. Pleading further, affirmatively and in the alternative, Defendant pleads that he is a bona fide purchaser. 6. Pleading further, affirmatively and in the alternative, Defendant would show that Plaintiff has failed to mitigate her damages as a reasonably prudent person would have done under the same or similar circumstances and that such failure to mitigate damages is the sole cause, or the proximate cause, of Plaintiff’s harm and/or damages, if any. 7. Pleading further, affirmatively and in the alternative, Defendant pleads that any alleged acts/omissions on his part were the result of a qualified good faith refusal. 8. Pleading further, affirmatively and in the alternative, Defendant pleads that he has a superior title and/or right to possess the property in dispute. 9. Pleading further, affirmatively and in the alternative, Defendant pleads that any alleged acts/omissions on his part were the result of a bona fide dispute with Plaintiff. 10. Pleading further, affirmatively and in the alternative, Defendant pleads that any alleged acts/omissions on his part were the result of a mistake or accident. 11. Pleading further, affirmatively and in the alternative, Defendant pleads that Plaintiff has unclean hands. DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 2 12. Pleading further, affirmatively and in the alternative, Defendant pleads that the relief sought by Plaintiff would cause him an undue hardship. 13. Pleading further, affirmatively and in the alternative, Defendant pleads that together, Defendant and Plaintiff, adversely possessed the property identified by Plaintiff as the “Realty Triangle” and also commonly referred to as the “River Tract” as to the world and own it jointly in undivided interests in a tenancy in common. 14. Defendant would assert that the court should instruct the jury as to whether any recoveries sought by Plaintiff are subject to federal or state income taxes. 15. Defendant would assert that the court should instruct the jury that a spouse, cannot by reason of marriage, sell, convey, or encumber homestead property without the joinder of the other spouse. 16. In the unlikely event of any recovery whatsoever by the Plaintiff, Defendant affirmatively plead the provisions of the Texas Finance Code and would show that the recovery of pre-judgment and post-judgment interest is subject to and limited by the provisions thereof, including and not limited to Sections 304.003, 304.005, 304.103, 304.104, 304.1045, 304.105, 304.107 and/or TEX. CIV. PRAC. & REM. CODE Chapter 41. 17. Defendant further alleges Plaintiff's claim for pre-judgment interest is limited by the dates and amounts set forth in the following: • Art. 5069-1.05 § 6, Tex. R. Civ. Stat; • Chapter 304, Tex. Fin. Code; and • Chapter 41, Tex. Civ. Prac. & Rem. Code DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 3 II. ARCHWAY’S SUPPLEMENTAL COUNTERCLAIMS A. Partition 18. Pleading further, affirmatively and in the alternative, Defendant pleads that together, Defendant and Plaintiff, adversely possessed the property identified by Plaintiff as the “Realty Triangle” and also commonly referred to as the “River Tract” as to the world and own it jointly in undivided interests in a tenancy in common for which Defendant now seeks a partition under Texas Property Code §§ 23.001 et seq. The “River Tract” is more specifically described as follows: BEING A TRACT OR PARCEL OF LAND situated in the City of Dallas, Dallas County, Texas; and being part of Block 2974, more particularly described as follows: BEGINNING at a point for corner at the Northeasterly corner of Revised Bob-O- Links Estates, and addition to the City of Dallas as recorded in Volume 73241, Page 1507, of the Map and Deed Records of Dallas County, Texas, said point being North 0° 20' 40" East a distance of 39.13 feet from the most Northeasterly corner of Lot 20, Block B/2974, of said Bob-O-Links Estates; THENCE North 59° 18' 00" West along a Northeasterly line of said Bob-O-Links Estates a distance of 157.60 feet to a point for corner; THENCE South 77° 29' 00' East along the Southerly line of Lot 7, Block K/2984 of the Temple Phinney Subdivision as recorded in Volume 12, Page 111, of the Map and Deed Records of Dallas County, Texas, a distance of 92.50 feet to an angle point; THENCE South 62° 45' 00" East continuing along the Southerly line of said Lot 7, a distance of 50.60 feet to a point for corner; THENCE South 0° 20' 40' East along a Westerly line of said Lot 7 a distance of 32.25 feet to the POINT OF BEGINNING and containing 3,022 square feet or 0.0714 acres. III. NOTICE OF DOUCMENTS TO BE USED AT TRIAL 19. Pursuant to TEX. R. Civ. P. 193.7, Defendant hereby notifies Plaintiff of Defendant’s intent to use all documents exchanged and produced between the parties including, but not limited to, correspondence, discovery responses, and deposition testimony and exhibits during the trial of this matter and in any motions for summary judgment. DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 4 V. JURY DEMAND Defendant would show a demand for trial by jury has been made and the requisite fee has been tendered to the Clerk of the Court. VI. PRAYER AND CONCLUSION FOR THESE REASONS, Defendant Archway respectfully prays that Plaintiff Schiff be denied the relief sought in her petition; that Plaintiff take nothing against this Defendant and that Judgment be entered and rendered for Defendant; that Defendant recover all costs of court and its reasonable attorney’s fees; that Defendant have such other and further relief, general or special, legal or equitable, to which it is justly entitled. Respectfully submitted, REID & DENNIS, P.C. /s/ Steve Dennis By: _________________________ STEVE DENNIS State Bar No. 00798143 sdennis@reiddennis.com Tollway Towers South, Suite 1400 15660 Dallas Parkway Dallas, Texas 75248-3328 Telephone: (972) 991-2626 Facsimile: (972) 991-2678 ATTORNEYS FOR DEFENDANT LARRY ALEXANDER, INDIVIDUALLY AND D/B/A ARCHWAY HOMES CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing instrument was forwarded to Plaintiff’s counsel of record on this the 12th of June 2018, in accordance with the Texas Rules of Civil Procedure: /s/ Steve Dennis _____________________________________ Steve Dennis DEFENDANT LARRY ALEXANDER, INDIVIDUALLY, AND D/B/A ARCHWAY HOMES’S SECOND SUPPLEMENTS TO HIS ANSWERS AND AFFIRMATIVE DEFENSES AND FIRST SUPPLEMENT TO HIS COUNTERCLIAMS - PAGE 5