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NO. 23-08-11378
HANGAR ASSETS, LLC IN THE DISTRICT COURT
Plaintiff
457th JUDICIAL DISTRICT
JACK HUDDLESTON AND JC
HANGARS, LLC
Defendants MONTGOMERY COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO
DEFENDANTS’ TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THIS COURT:
Hangar Assets, LLC (“Plaintiff”) files is Response to the Motion for Summary Judgment
filed by Jack Huddleston (“Huddleston”) and JC Hangars, LLC (“JC Hangars”), together,
“Defendants,” and respectfully shows as follow
SUMMARY OF THE ARGUMENT
This is a case about Huddleston’s breach of an option contract for the purchase of
two airplane hangars and associated fraud. Huddleston acquired a master lease to develop the
hangars from Montgomery County. Plaintiff and Huddleston executed an option contract for the
purchase of two hangars to be developed for $140,000 each. After a series of delays developing
the hangars, Huddleston finally completed them. The problem is Huddleston transferred the
master lease to his entity JC Hangars, and completely ignored his option obligations with Plaintiff
Huddleston via JC Hangars sold the hangars to someone else for $80,000 more than what
Huddleston optioned them to Plaintiff
Because Huddleston’s actions were an obvious money grab in violation of his
contractual obligations and contrary to the representations he made, Plaintiff sued for damages for
breach of contract, common law fraud and fraudulent inducement, statutory fraud, DTPA violations
and promissory estoppel.
Defendants filed a traditional motion for summary judgment on the contract claims
asserting that the option is an agreement to agree because it lacked material terms, and Plaintiff’s
damages are capped at $3,000 pursuant to a liquidated damages clause. Defendants’ motion should
be denied because no material terms were missing from the option contract, and the liquidated
damages clause limiting Plaintiff’s damages to $3,000 is an unenforceable penalty under Texas
law.
Defendants also moved for a no evidence summary judgment on all claims. As
shown below, there is ample (more than a scintilla of) evidence of all elements of Plaintiff’s claims,
thus the motion should be denied.
SUMMARY JUDGMENT EVIDENCE
Plaintiff includes the following summary judgment evidence with this response and
incorporates the evidence into this response by reference.
Exhibit A Conroe North Houston Regional Airport Land Lease
Agreement aster Leasebetween Montgomery County and
Huddleston dated June 27, 2017 (“Master Lease”)
Exhibit B Option to Purchase Partial Assignment of Land Lease for
Aircraft Hangar between Huddleston and Plaintiff Option
Contract”) dated August 19, 2021.
Exhibit C Affidavit of Brandon Ray
Exhibit D Copies of Huddleston JC Hangars’ other assignments
Exhibit E Emails from Brandon Ray to Huddleston
These assignments, as well as the Exhibit F and G assignments are public records filed in Montgomery County,
Texas signed by County Judge Mark Keogh. Plaintiff asks tha t the Court take judicial notice of these documents.
Exhibit F Partial Assignment of Land Lease Agreements dated
June 23, and June 27, respectively whereby
Defendants sold or otherwise leased Units 11 and 12.
Exhibit G Assignment of Master Lease from Huddleston to JC Hangars
LLC dated March 28, 2003.
FACTS
On or about June 27, 2017, Defendant, Jack Huddleston (“Huddleston”), entered
into that certain Conroe North Houston Regional Airport Land Lease Agreement (“Master Lease”)
whereby Montgomery County leased to Huddleston the real property located within an area and
facility known as the Conroe North Houston Regional Airport situated in Montgomery, Texas. (the
“Leased Premises”). Exhibit A. The Master Lease has a 40 year term, and Huddleston was to
construct one or more aircraft hangars on the Leased Premises. Id. Plaintiff received a copy of the
Master Lease from Huddleston. Exhibit C at ¶ 1; Exhibit B.
On or about August 19, 2021, Plaintiff and Huddleston, individually, entered an
Option to Purchase Partial Assignment of Land Lease for Aircraft Hangars (the “Option contract”).
Exhibit B.
In consideration of the Option Fee of $1,400.00 per hangar unit paid by Plaintiff to
Huddleston, Huddleston granted to Plaintiff “the exclusive and irrevocable option to purchase
the hangars located on the Leased Premises and identified as Building 33B Unit 11 & 12 (the
“Hangars”) for $140,000.00 per hangar for a total of $280,000.00 payable at closing through cash
or financing. See Exhibit B at p. 1. The Option contract did not have an expiration date. See
Exhibit , C.
Plaintiff executed the Option contract and paid the option fee of $1,400.00 per
hangar at the time of execution, and likewise Huddleston executed the Option accepting the terms
of the Option and becoming bound to perform. Exhibit B. The Master Lease was an Exhibit to the
Option contract. Exhibit B at p. 1. The Option also has a requirement that Plaintiff obtain suitable
financing for the purchase. Exhibit B at ¶ 7. Plaintiff obtained financing and the finance company
was standing by ready to fund. SeeExhibit C Ray Affidavit at ¶
Plaintiff informed Huddleston that the units must be side-by-side for his intended
purpose of leasing the units to a single tenant looking for such hangar space and that he would not
enter the Option contract if the Hangars were not side-by-side. See Exhibit C – Ray Affidavit at ¶
. To accommodate this request, Huddleston granted option rights to the two side -by-side
Hangars. Exhibit B Option Contract.
Huddleston warranted in the Option that construction of the hangars would be
completed within six (6) months of the execution date of August 19, 2021. Exhibit B at ¶5.
At the time Plaintiff signed the Option contract, Huddleston made the following
representations to Plaintiff, on which Plaintiff relied as he entered into the Option contract:
the Option conferred the exclusive and irrevocable right to purchase a partial
assignment of land lease including the Hangars;
the Hangars would be substantially complete in 6 months;
the price of the Hangars would be $140,000.00 each;
the Hangars would be side-by-side hangars;
Huddleston would not sell, transfer or lease the Hangars to third parties;
Huddleston would keep Plaintiff updated on the progress of construction;
Huddleston would notify Plaintiff when the Hangars were substantially
complete so that Plaintiff could close the purchase/ lease of the Hangars;
Huddleston would send Plaintiff the paperwork (Partial Assignment Agreement
agreement) when it was ready to go, and that he would give enough notice to
allow the bank appraiser to appraise the property; and
Represented that there was nothing to negotiate on the assignment portion of
the agreement because it was one he would prepare and it was the same standard
agreement he would use on all the hangars he sold and/or leased to satisfy the
ministerial act of Montgomery County approving the assignment.
See Exhibit C, Ray Affidavit.
Huddleston did not keep Plaintiff updated on the progress of construction as
promised and never sent Plaintiff the paperwork (Partial Assignment Agreement) as promised. Id
at ¶
Contrary to Huddleston claims in his motion, Plaintiff regularly contacted
Huddleston to ask for status updates. Id. Most of the time Huddleston avoided Plaintiff and failed
to return his phone calls, texts, or emails. Exhibit C. Plaintiff sent Huddleston at least seven emails
asking about the status of the hangar. See Exhibit E emails to Huddleston.
Following the signing of the Option contract, Plaintiff contacted Huddleston on at
least six occasions by phone (in addition to the Exhibit E emails) with questions about the Hangars,
the status of construction, and when he could close on the purchase. Exhibit C, Ray Affidavit at
¶10. Huddleston represented that progress was being made on the construction of the Hangars and
that he was working on permits. Id. at ¶ Huddleston told Plaintiff on March 14, 2022, that
he estimated they were 90 days out from completing construction. Id. On September 15, 2022, he
told Plaintiff that he would be sending out the purchase contracts soon. Id. On March 13, 2023,
Huddleston told Plaintiff that the Hangars were basically done and ready for closing after City
inspection. Id.
Huddleston never notified Plaintiff when construction was completed, that he was
“calling in all the options,” or that he was ready for Plaintiff to exercise the Option contract.
[Exhibit C, ¶15]. Of course, all of this was subterfuge because Huddleston was actively working
to sell, and in fact did sell the Hangars to someone else for $80,000 more than what he had
contracted to sell them to Plaintiff. Exhibit C Ray affidavit at ¶; Exhibit D Assignment of
the Hangars to someone else.
It wasn’t until July 18, 2023, that Plaintiff learned for the first time that Huddleston
had purportedly “called in all options” four months prior and had already sold the Hangars and
partial assignment to someone else. Exhibit C Ray Affidavit at ¶ . Without any warning or
notice, Huddleston disregarded the terms of the Option contract and sold the Hangars to someone
else in violation of the Option contract. Exhibit C, Ray Affidavit. Attached hereto as Exhibit F
are the Partial Assignment of Land Lease Agreements with Consent of Lessor Conroe North
Houston Regional Airport dated June 23, 2023, and June 27, 2023, respectively whereby
Huddleston sold or otherwise leased the Hangars to someone else.
During the July 18, 2023, phone conference between Plaintiff and Huddleston,
Huddelston admitted the following:
Only hangar unit 33A 1 and unit 33B10 which are not side-by-side are left to
purchase;
14 or 15 hangar units have closed with appraisals in the past 90 days;
Huddleston “called in” all options to close;
Plaintiff “missed a lot of stuff” the last 4 months;
4 months ago, Plaintiff called for final inspections and at that point we had called
in all the options;
He asked the city for a final inspection, and it couldn’t get it as the electricity wasn’t
on;
In the meantime, Huddleston had been closing like crazy;
He’d get back to Plaintiff that afternoon (he didn’t);
The hangars are appraising for $222,000.00; and
He isselling hangars at $180,000.00 and “ that’s where we are.”
Exhibit C, Ray Affidavit.
Plaintiff was denied the opportunity to buy the Hangars because unbeknownst to
him, Huddleston had found buyers who paid substantially more money than he had agreed to sell
them for, leaving Plaintiff without the Hangars he intended to purchase when he signed the Option
contract. [Exhibit C Ray Affidavit at ¶19
t all times, Plaintiff was ready, willing and able to exercise his Option and
purchase the two Hangars. Id. ¶19.
After Huddleston admitted that he had sold the Hangars (in violation of the Option
contract), he offered to sell the last two remaining hangars for an extra $40,000 per unit. Id.
Finally, Plaintiff only recently discovered that Huddleston transferred the Master
Lease to JC Hangars on March 28, 2023. Exhibit C, Ray Affidavit; Exhibit G, Assignment of
Master Lease.
As a result of Huddleston’s fraudulent actions nd breach of the Option contract
Plaintiff has suffered a loss of market value of the Hangars and lost profits. If Plaintiff had acquired
the Hangars as promised by Huddleston, Plaintiff could have sold hangar interests for a profit of
at least $80,000, or he could have been leasing those to others and collecting rent all that time and
far into the future. Exhibit C, Ray Affidavit at ¶. The market rate for renting the Hangars is
$1,600.00 per month per unit for a total of $3,200.00 per month. Id.
IV. SUMMARY JUDGMENTSTANDARD OF REVIEW
No Evidence Summary Judgment Standard.
In a no vidence motion for summary judgment, a movant can challenge a non
movant to produce evidence to support one or more elements of the nonmovant’s claims on which
the non movant would have the burden of proof at trial after an adequate time for discovery has
passed. Huddleston must identify at least one essential element of each of Plaintiff’s causes of
action for which there is no evidence. Tex. R. Civ. P. 166a(i). To defeat the no evidence grounds,
Plaintiff need only adduce more than a scintilla of evidence raising a genuine issue of material fact
as to each challenged element. Lightning Oil Co. v. Anadarko E & P Onshore, 520 S.W.3d 39, 45
(Tex. 2017). More than a scintilla of evidence is produced if the evidence is sufficient to allow
reasonable and fair minded people to differ in their conclusions on whether the challenged fact
exists. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).
In evaluating whether more than a scintilla of evidence exists, the Court must view
the evidence in the light most favorable to the non movant, crediting evidence favorable to the
movant if reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
B. Traditional Summary Judgment Standard.
A traditional motion for summary judgment is only appropriate if the evidence
shows that there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law. Tex. R. Civ. P. 166a(c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). On
traditional summary judgment grounds, Defendants bear the burden of showing that no genuine
issue of material fact exists and that the trial court should grant judgment as a matter of law. Tex.
R. Civ. P. 166a(c). To meet that burden, Defendants are required to “conclusively negate at least
one essential element of each of [Nonmovants] causes of action or conclusively prove all elements
of an affirmative defense.” KCM Fin v. Brandshaw, 457 S.W.3d 70, 79 (Tex. 2015).
When reviewing grounds for a traditional motion for summary judgment, the Court
shall take as true all evidence favorable to Plaintiff/ movant and indulge every reasonable
inference to resolve any doubts in the nonmovant’s favor. Sommers for Alabama & Dunlavy, Ltd.
v. Sandcastle Homes, 521 S.W.3d 749, 754 (Tex. 2017) Limestone Prods. Distrib., Inc. v.
McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 49 (Tex. 1985 . Controverted
evidence that favors the ovant will not be considered. Harwell v. State Farm Mut. Auto. Ins. Co.,
869 S.W.2d 170, 173 (Tex. 1995)
ARGUMENT AND AUTHORITIES
Defendants’ Traditional Motion for Summary Judgment on Plaintiff’s Contract
Claim because it is an Agreement to Agree Should be Denied.
Material Contract Terms Defined
Defendants assert they are entitled to summary judgment on Plaintiff’s breach of
contract claim arguing the Option contract is an unenforceable “agreement to agree” because the
Option contract lacked material terms; specifically, the required Partial Assignment Agreement
was never prepared or executed. See Huddleston’s Motion at p. 7 -8.
The elements of a breach of contract claim are (1) the existence of a valid contract
between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the
defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. Prime
Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.Houston [1st Dist.] 2002, pet.
denied). The elements of a valid, binding contract are (1) an offer, (2) acceptance of the offer, (3)
a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the
contract with the intent that it be mutual and binding. Wal Mart Stores, Inc. v. Lopez, 93 S.W.3d
56 (Tex. App.- Houston [14th Dist.] 2002, no pet.).
An option granted in a contract is a contract right. See Wall v. Trinity Sand & Gravel
., 369 S.W.2d 315, 317 18 (Tex.1963) (construing option provision under contract law); Sinclair
Ref. Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185 (1949) (purchase option provision in lease
agreement conferred contract rights on lessee); Corsicana Petroleum Co. v. Owens, 110 Tex. 568,
222 S.W. 154, 155 (1920) (contract granted the "right or option" to surrender lease under certain
conditions). Property owners have the power to make valid contracts granting option rights in their
property. Id. In turn, the courts have a duty to uphold and enforce such contracts. Id.A00CS
Investors, Inc. v. McLaughlin, 913 S.W.2d 664 (Tex. App. 1995).
"Agreements to enter into future contracts are enforceable if they contain
all material terms." McCalla v. Baker’s Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013). When
an "agreement to enter into a future contract already contains all the material terms of the future
contract," courts can determine and enforce the parties' obligations, and concerns about
indefiniteness and reasonable certainty do not arise. Id. Thus, an agreement that contains all of its
essential terms is not unenforceable merely because the parties anticipate some future
agreement. See McCalla, 416 S.W.3d at 418 (holding that even if settlement agreement in which
party promised that he "will agree" and "agree[s] to enter an agreement" constituted "agreement to
agree," it was nevertheless enforceable because it contained all material terms)."[T]he actions of
the parties may conclusively establish their intention to enter a binding agreement even if some
terms are left for future agreement." Tex. Oil Co. v. Tenneco, Inc., 917 S.W.2d 826, 830 (Tex. App.
Houston [14 dist.] 1994, rev'd on other grounds, 958 S.W.2d 17 (Tex. 1997); see also
RESTATEMENT (SECOND) OF CONTRACTS § 33(1) cmt. a (1981) ("the actions of the parties
may show conclusively that they have intended to conclude a binding agreement, even though one
or more terms are missing or are left to be agreed upon.").
In support of his argument, Defendants rely on the unpublished case Uribe v. Briar
Ridge, LLC, No. 12-20-000167-CV at *19 (Tex. App. Texarkana, Dec. 29, 2021) (mem. opinion).
The Uribe case is about a commercial restaurant tenant who had an option to purchase the
commercial building that was the subject of the leaseId. at *3, 19. The court there held the option
was an unenforceable agreement to agree because the option did not include a material term – the
price to be paid. Id.
No material terms are lacking in this case; all of the material terms are present in
the Option contract. The identity and location of the Hangars is spelled out in the Option contract,
including a map of where they would be located (side-by-side). Exhibit B Option Contract at p. 1
and Ex. C therein. The required Hangar features Huddleston was to construct are identified with
specificity. Id. at Ex. D therein. The price to be paid is clearly stated ($140,000 per hangar). Id.
at p.1. The Master Lease, a portion of which was to be assigned, was attached as an exhibit to the
Option contract. Exhibit B, p.1; Exhibit A. The only items left to be completed to consummate
the deal were Huddleston completing the Hangars, payment of the $140,000 per hangar price, and
the parties executing a Partial Assignment Agreementassigning the Master LeaseId. at ¶ 9.
Defendants hang their entire argument on the lack of a Partial Assignment
Agreement, claiming that the terms are “material,” and that its terms remain a “mystery” because
no Partial Assignment Agreement exists. See Huddleston Motion at p. 2. At best, Huddleston’s
argument is disingenuous.
The Partial Assignment Agreement assigns a portion of the Master Lease. Exhibit
C Ray Affidavit at ¶ 5; Exhibit B; Exhibit F. Huddleston had already executed the Master Lease
and sent a copy to Plaintiff at the time the Option contract was signed, thus the parties knew its
terms. Exhibit C Ray Affidavit at ¶ In fact, the Master Lease was an exhibit to the Option
contract. Exhibit B, p. 1.
The terms of the Partial Assignment Agreement are no great secret. It is a form
agreement to memorialize the assignment of a portion of the Master Lease to the purchaser of the
individual hangars. Exhibit C, Ray Affidavit; Exhibits D, F. In fact, Huddleston prepared and
subsequently executed several of the Partial Assignment Agreements for the Master Lease for his
hangar sales to present to Montgomery County for its administrative approval. See e.g., Exhibits
, F. Exhibit D is the Partial Assignment Agreements Assigning the Hangars to someone else
her than Plaintiff. Note also that there is nothing material in the Partial Assignment Agreement
terms. Id. All it does is assign the portion of the Master lease applicable to the Hangars. Id. The
terms of the Master Lease Agreement were known by the parties, thus the Partial Assignment
Agreement was merely a ministerial act to be submitted to and approved by Montgomery County
Id.; Exhibit C.
Because the Option contract was a valid contract containing all of the material
terms, or alternatively, there is a fact issue as to the materiality of the Partial Assignment
Agreement, Defendants’ motion for summary judgment on Plaintiff’s breach of Option contract
claim should be denied.
No Failure of Condition Precedent.
Defendants also argue Plaintiff failed to invoke the Option contract because
Plaintiff never executed the Partial Assignment Agreement as required by paragraph 2 of the
Option Contract. See Huddleston’s Motion at p. 8 citing the Exhibit B Option contract at ¶2.
Huddleston, however, represented to Plaintiff that he would forward the necessary Partial
Assignment Agreement when the Hangars were complete. Exhibit C Ray Affidavit at ¶6, h.
Plaintiff repeatedly told Huddleston he was ready to execute on the Option contract; all he needed
to know was when the Hangars would be complete, and for Huddleston to hand off the promised
Partial Assignment Agreement. Id. at ¶ Huddleston did not tell Plaintiff about the completion
of the Hangars and never sent the Partial Assignment Agreement for execution because he was
making a money grab for an extra $80,000 by selling the Hangars to someone else. Id.at ¶
Exhibit F. Now Huddleston is using his failure to deliver the Partial Assignment Agreement and
execution as an excuse to avoid his Option contract obligations so he can pocket the extra $80,000
he received from selling the Hangars to someone else. Id.
Because Huddleston mispresented he would deliver the Partial Assignment
Agreement to Plaintiff (and did not), his fraud prevented Plaintiff’s performance and Huddleston’s
motion should be denied. Minimally, there is a fact issue as to whether Huddleston’s false
statements induced Plaintiff to rely on his representations and wait on him to deliver the draft
Partial Assignment Agreement.
Huddleston’s Traditional Motion for Summary Judgment Limiting Plaintiff’s
Damages to the $3,000 Liquidated Damages Cap should be denied because it is an Unfair
Penalty.
Plaintiff also seeks summary judgment that Plaintiff’s damages are limited to
$3,000 because the Option contract contains a liquated damages clause limiting damages for
breach to $2,800 plus interest. In so doing, Defendants are admitting the validity of the Option
contract (contrary to their first point), and that its terms limit Plaintiff’s damages. First, notably,
Defendants HAVE remitted the damages it admits are owed under the liquidated damages
clause. Defendants remain in breach of the Option contract for failing to tender the liquidated
damages. For that reason alone, Defendants’ motion should be denied.
Additionally, the liquidated damages clause is an unfair penalty and unenforceable
under Texas law. As the party seeking to enforce a liquidated damages clause, Defendants must
prove (1) the harm caused by the breach is incapable or difficult of estimation, and (2) the amount
of liquidated damages called for is a reasonable forecast of just compensation. Stweart v. Basey,
Note Defendants have not paid the $2,800 he admits he owes (minimally), thus Plaintiff is
entitled to judgment for at least that (plus attorneys’ fees and interest). Exhibit C, Ray Affidavit
at ¶
245 S.W.2d 484, 486 (Tex. 1952).
An unreasonably small liquidated damage clause is not enforceable:
[I]f the sum stipulated to be paid should be treated as a penalty
because it exceeds the actual loss, we see no reason why, when it is
less than the actual loss, it should not be treated as a penalty. In the
one case to permit a complainant to recover the stipulated sum
would be to allow him more than compensation for his loss, and to
the extent of the excess punish the defendant; while in the other case
to limit the complainant to a recovery of the sum stipulated would
be to deny him compensation for his loss, and to the extent of the
denial punish him. The purpose of the law would be as entirely
defeated in the one case as in the other.
Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., 148 S.W. 1109 (Tex. Civ. App.
Texarkana 1912, writ ref’d) ee also See U.C.C. § 2 718 comment 1, which states: “A term fixing
unreasonably large liquidated damages is expressly made void as a penalty. An unreasonably small
amount would be subject to similar criticism and might be stricken under the section on
unconscionable contracts or clauses.” Id.
Huddleston does not present any argument or facts that the $00 liquidated
damages cap satisfies the elements required in Stewart, instead only arguing that its mere existence
permissibly limits Plaintiff’s damages. It does not.
Plaintiff’s damages are far in excess of the $ liquidated damages cap
contained in the Option contract and are easily calculated. Huddleston sold the Hangars for
$80,000 more than what he optioned them to Plaintiff. Exhibit C Ray Affidavit at ¶12, 20
Huddleston admitted the value of a single hangar was $220,000 and that he was selling them at
$180,000 each by the time he completed the Hangars. Id. In fact, ignoring the price set in the
Option contract, Huddleston had the nerve to offer the two remaining non contiguous hangars to
Plaintiff at $180,000 each. Id. Minimally, Plaintiff’s damages are at least $80,000; more
considering Plaintiff intended to lease the Hangars at $3,200 per month. Id.
ecause the $ liquidated damages clause is not a reasonable forecast of the
damages caused and thus unfairly penalizes Plaintiff, and Defendants ve not established (or
offered any evidence) that the calculation of Plaintiff’s damages difficult to calculate or a
reasonable estimation of Plaintiff’s damages, Huddleston’s motion for summary judgment on this
point should be denied.
C. Huddleston’s No Evidence Motion for Summary Judgment on Plaintiff’s
Common Law Fraud and Fraudulent Inducement Claims should be Denied as there is
Sufficient Evidence Supporting Each Element of Plaintiff’s Claim.
Plaintiff sued Huddleston for common law fraud. Huddleston seeks a no evidence
summary judgment on Plaintiff’s fraud claim. To prevail, Plaintiff need only show more than a
scintilla of each element of its claim. Lightning Oil Co. 520 S.W.3d at 45. The elements of a
cause of action for fraud are: (1) that a material representation was made; (2) the representation
was false; (3) when the representation was made, the speaker knew it was false or made it
recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the
representation with the intent that the other party should act upon it; (5) the party acted in reliance
on the representation; and (6) the party thereby suffered injury. In re First Merit Bank, N.A., 52
S.W.3d 749, 758 (Tex. 2001); Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd.,
4237 S.W.3d 379, 385 (Tex. App.- Houston [14th Dist.] 2007, no pet.).
Fraudulent inducement shares the same basic elements as a claim for common law
fraud: a material misrepresentation, which was false, and which was either known to be false when
made or was asserted without knowledge of its truth, which was intended to be acted upon, which
was relied upon, and which caused injury. Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018).
The main difference versus a fraud claim is the existence of a valid contract. See id.
Huddleston knowingly made the following materially false representations to
Plaintiff knowing them to be false or with recklessness without knowing the truth:
the Option contract conferred the exclusive and irrevocable right to purchase a
partial assignment of land lease including the Hangars;
the Hangars would be substantially complete in 6 months;
the price of the Hangars would be $140,000.00 each;
the Hangars would be side-by-side hangars;
Huddleston would not sell, transfer or lease the Hangars to third parties;
Huddleston would keep Plaintiff updated on the progress of construction;
Huddleston would notify Plaintiff when the Hangars were substantially complete
so that Plaintiff could close the purchase/ lease of the Hangars;
Huddleston would send Plaintiff the paperwork (Partial Assignment Agreement)
when it was ready to go, and that he would give enough notice to allow the bank
appraiser to appraise the property, of which we discussed was a condition of the
financing; and
that there was nothing to negotiate on the assignment portion of the agreement
because it was one he would prepare and it was the same standard agreement he
would use on all the hangars he sold and/or leasedto satisfy the ministerial act of
Montgomery County approving the assignment.
Exhibit C, Ray Affidavit.
Plaintiff relied on these representations to enter the Option contract and did not take
action to prepare a Partial Assignment Agreement based on Huddleston’s promise to provide the
document. Id. This has damaged Plaintiff minimally in the amount of the $ option fee
Plaintiff paid, but far in excess of that as Plaintiff has incurred significantly greater damages -
$80,000 minimum in lost market value admitted by Huddleston; more when lost lease revenue is
considered. Exhibit C.
Additionally, the Option contract was a valid contract. Huddleston offered Plaintiff
an option to purchase two hangars, the agreement was supported the consideration of the $2,800
option fee that Plaintiff paid Huddleston, and the parties acknowledged their acceptance of the
contract terms when they signed the Option contract. See Wal Mart Stores, Inc., 93 S.W.3d at 555-
56 (elements of a valid contract).
Because there is more than a scintilla of evidence of each element of Plaintiff’s
common law fraud claim, and the existence of a valid contract between the parties, Huddleston’s
no evidence motion on Plaintiff’s common law fraud and fraudulent inducement claims should be
denied.
D. Huddleston’s No Evidence Motion for Summary Judgment on Plaintiff’s
Statutory Fraud Claim should be Denied as there is Sufficient Evidence Supporting Each
Element of Plaintiff’s Claim.
laintiff sued Huddleston for statutory fraud based on Tex. Bus. & Com. Code
Ann. § 27.01(a) (West 2009), which makes it unlawful to commit fraud in real estate and stock
transaction. A person who commits statutory fraud is liable to the person defrauded not only for
actual damages, but also for attorney's fees, expert witness fees, costs for copies of depositions,
and costs of court. § 27.01(e) The proof that is required to establish statutory fraud is similar
to that which is necessary to prove a claim for common law fraud; the difference is that this type
of fraud is unique to real estate transactions. To recover under this theory, Plaintiff need only
establish that (1) a transaction involving real estate or stock was involved; (2) the defendant made
a false representation of a past or existing material fact or made a promise to perform an act with
the intention of not fulfilling it; (3) the false representation or promise was made by the defendant
for the purpose of inducing the plaintiff to enter into a contract; and (4) the plaintiff entered into
the contract in reliance on the false representation or promise. Nelson, 630 S.W.3d at
(citing Bus. & Com. § 27.01(a) see also Collective Asset Partners LLC v. Schaumburg
S.W.3d 435, 443 (Tex. App.—Dallas 2014, pet. denied).
A lease agreement with an option to purchase is a transaction involving real
estate for purposes of statutory fraud. Wise v. Pena, 552 S.W.2d 196, 198, 202 (Tex. App.—Corpus
Christi Edinburg 1977, writ dism'd) partially overruled on other grounds by Fortune Prod. Co. v.
Conoco, Inc., 52 S.W.3d 671, 678 (Tex. 2000)
There is more than a scintilla of evidence of each element of fraud committed by
Huddleston within the meaning of Texas Business & Commerce Code §27.01. The Option contract
to purchase the Hangars and acquire the assignment of part of the Master ease involves real estate.
Id. As shown in detail above, Huddleston made several false representations not intending to fulfill
them on which Plaintiff relied, and Plaintiff entered into the Option contract in reliance on
Huddleston’s false statements thus damaging Plaintiff. See above and Exhibit C, Ray Affidavit.
Because there is more than a scintilla of evidence on Plaintiff’ statutory fraud claim,
Huddleston’s no evidence motion for summary judgment should be denied.
E. Huddleston’s No Evidence Motion for Summary Judgment on Plaintiff’s
DTPA Claim should be Denied as there is Sufficient Evidence Supporting Each Element of
Plaintiff’s Claim.
Plaintiff sued Huddleston under Tex. Bus. & Com. Code §17.50(a), which provides
that a consumer may maintain an action where any of the following constitute a producing cause
of economic damages or damages for mental anguish: the use or employment by any person of a
false, misleading, or deceptive act or practice that is specifically enumerated Section §17.46(b).
Huddleston moved for a no evidence summary judgment on this claim.
s detailed above, Huddleston committed deceptive acts and practices including,
without limitation, causing confusion or misunderstanding about the source, sponsorship, approval
or certification of the services, representing that the services have sponsorship, approval,
characteristics, uses, or benefits that they do not have, representing that the services are of a
particular standard, quality, or grade if they are not, advertising the services with the intent to not
sell them as advertised, representing that an agreement confers or involves rights, remedies, or
obligations that it does not, representing that a guarantee or warranty confers or involves rights or
remedies that it does not, and the failure to disclose was intended to induce Plaintiffs to enter into
a transaction that the Plaintiffs would not have entered into if the information had been disclosed.
See Tex. Bus. & Com. Code §17.46(b). In addition to the above facts, Huddleston transferred his
interest in the Master Lease to JC Hangars without notice to Plaintiff. Exhibit C, F. The
aforementioned false, misleading, and deceptive acts and practices by Huddleston were relied
on by Plaintiff to its detriment. See above and Exhibit C, Ray Affidavit.
Further, as shown above, Huddleston engaged in an unconscionable action, or an
unconscionable course of action as defined in Section 17.45(5), in that it took advantage of the
lack of knowledge, ability or experience of Plaintiff to a grossly and unfair degree. Huddleston’s
conduct resulted in a gross disparity between the value and rights conferred to Plaintiff for the
Option to what it received.
More specifically, and without limitation, Huddleston engaged in the following
deceptive acts and practices and misrepresentations which he knew were false:
Representing the Option conferred the right to purchase a partial assignment
of land lease including the Hangars
Representing that the Hangars would be substantially complete in 6 months;
Representing that the price of the Hangars would be $140,000.00;
Representing that Plaintiff could purchase or lease side side hangars;
Representing that Huddleston would not sell, transfer or lease the Hangars
to third parties;
Representing that Huddleston would notify Plaintiff when the Hangars were
substantially complete so that Plaintiff could close the purchase/ lease of the
Hangars
Transferring the Master Lease to JC Hangars without notice to Plaintiff and
then selling the Hangars to someone else.
Exhibit C, Ray Affidavit; Exhibit F.
Plaintiff relied on Huddleston’s false, misleading, deceptive act or practices to their
detriment, and Huddleston’s acts and omissions were the producing cause of Plaintiff’s damages.
Id.
Huddleston’s wrongful conduct was a producing cause of Plaintiff’s economic
damages as detailed above. Id. Plaintiff seeks recovery for loss of market value of the Hangars, lost
profits, consequential damages, statutory interest and attorneys’ fees as shown above and recited in
Plaintiff’s affidavitId. Plaintiff seeks liquidated and unliquidated damages. Additionally, since
Huddleston acted knowingly or intentionally, Plaintiff is entitled to recover treble damages under
Texas Business & Commerce Code section 17.50(b)(1) being three times Plaintiff’s economic
damages.
Because there is more than scintilla of evidence supporting each element of
Plaintiff’s DTPA claim, Huddleston’s no evidence motion should be denied.
F. Defendants’ No Evidence Motion for Summary Judgment on Plaintiff’s
Breach of Contract Claim should be Denied as there is Sufficient Evidence Supporting Each
Element of Plaintiff’s Claim.
Defendants also moved for a no evidence summary judgment on Plaintiff’s breach
of contract claim. The elements of a breach of contract claim are (1) the existence of a valid
contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance,
(3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach.
Prime Prods., Inc, 97 S.W.3d at 636. The elements of a valid, binding contract are (1) an offer, (2)
acceptance of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5)
execution and delivery of the contract with the intent that it be mutual and binding. Wal Mart
Stores, Inc.,93 S.W.3d at 555
Huddleston offered Plaintiff an option to purchase two hangars, the agreement was
supported the consideration of the $2,800 option fee that Plaintiff paid Huddleston, and the parties
acknowledged their acceptance of the contract terms when they signed the Option contract. Exhibit
B. Huddleston and Plaintiff had a valid contract. See Wal Mart Stores, Inc.,93 S.W.3d at 555 56
(elements of a valid contract).
Huddleston violated a material term of the Option contract when he failed to option
the Hangars to Plaintiff as required by the Option contract. Exhibit C Ray Affidavit. Plaintiff was
ready, willing and able to fund and close on the acquisition of the Hangars, yet Huddleston’s
refused to agree to sell the Hangars to Plaintiff as required by and in violation of the Option
Contract, instead demanding $80,000 more than what was agreed to in the Option contract. Id.
Huddleston’s breach caused damage to Plaintiff of at least $80,000 as detailed above. Exhibit C,
Ray Affidavit.
Because there is more than a scintilla of evidence as to each element of Plaintiff’s
breach of contract claim, Defendants’ no evidence motion for summary judgment should be
denied.
Defendants’ No Evidence Motion for Summary Judgment on Plaintiff’s
Promissory Estoppel Claim should be Denied as there is Sufficient Evidence Supporting
Each Element of Plaintiff’s Claim.
Defendants moved for a no evidence summary judgment on Plaintiff’s promissory
estoppel claim. The elements of a promissory estoppel claim are: The elements of a promissory
estoppel claim are: (1) a promise; (2) reliance thereon that was foreseeable to the promisor; and
(3) substantial reliance by the promisee to his detriment. Miller v. Raytheon Aircraft Co., 229
S.W.3d 358, 37879 (Tex. App.Houston [1st Dist.] 2007, no pet.) (citing English v. Fischer, 660
S.W.2d 521, 524 (Tex. 1983)).
As described in detail hereinabove, by acts, words, or deeds, Huddelston promised
to sell or otherwise lease the Hangars to Plaintiff along with several other representations which
turned out to be false. Exhibit C, ay Affidavit. Huddleston subsequently transferred the Master
Lease to JC Hangars, then JC Hangers sold the Hangars to someone else. Exhibits C, G. Plaintiff
foreseeably, reasonably and substantially relied on Defendants’ promises to its detriment by
entering into the Option contract and relying on Huddleston to send the Partial Assignment
Agreement. Id. Plaintiff’s reliance was foreseeable by Huddleston and Plaintiff was damaged as
a result. Id.
Because there is more than a scintilla of evidence as to each element of Plaintiff’s
promissory estoppel claim, Defendants’ no evidence motion for summary judgment should be
denied.
PRAYER
For these reasons, Plaintiff Henagar Assets LLC respectfully requests that Defendants’
otion for Traditional and No Evidence Summary Judgment be denied and for such other and
further relief to which Plaintiff may be entitled.
Respectfully submitted,
LEGIST, PLLC
Fredreck S. “Field” Hudgens
State Bar No. 24036811
Matthew G. Zagrodzky
State Bar No. 24003228
L. Susan Herrera
State Bar No. 09530160
1525 Lake Front Circle, Suite 2
The Woodlands, Texas 77380
Telephone: (713) 600-2727
Service@Legist.law
ATTORNEYSFOR PLAINTIFF
HANGAR ASSETS, LLC
CERTIFICATE OF SERVICE
I hereby certify that on April 12, 2024, a correct copy of this document was served via
electronic service or electronic mail to all parties or counsel of record.
Fredreck S. “Field” Hudgens
CONROE-NORTH HOUSTON REGIONAL AIRPORT
LAND LEASE AGREEMENT JUN27 2017
This Land Lease Agreement is made and entered into this
2017 ("Effective Date"), by and between MONTGOMERY COUNTY,
a political subdivision of the State of Texas acting by and through its
Commissioners Court, hereinafter referred to as "County" or "Lessor", and
hereinafter referred to as "Lessee".
DEMISE OF LEASED PREMISES
1.01 Leased Premises: In consideration of the prompt and timely payment of
the rentals set out herein and the true and faithful performance by Lessee of all
promises, covenants and obligations hereunder, Lessor hereby demises and leases
unto Lessee, and Lessee hereby accepts for the term, and subject to the provisions
hereof, the following described real properties (hereinafter referred to as "leased
premises") located within an area and facility known as the Conroe-North Houston
Regional Airport (hereinafter referred to as the "Airport") situated in Montgomery
County, Texas, by the County pursuant to covenants and conditions
contained in contracts, agreements, and resolutions between the County and the United
States of America and its agents, including but not limited to the Federal Aviation
Administration (FM), together with:
(a) all improvements, fixtures, appurtenances, rights, privileges, and easements
benefiting, belonging, or pertaining to the leased premises; and
(b) to the extent assignable and without warranty, all right, title and interest of
Lessor, if any, in and to utilities, sewage treatment capacity, water capacity,
drainage, and detention rights, if any, to serve, or that will serve, the leased
premises, but only to the extent that the same pertain exclusively to the leased
premises and not to any other property of Lessor.
(collectively hereinafter referred to as "leased premises").
The leased premises being the 1.808 acres (78,751 square feet) of land, more or less,
and being more particularly described and/or depicted in Exhibit "A", which is attached
hereto, including within the 1.808 acres the approximately 0.904 acres (39,378.24 sq.
ft.) previously described in that Amendment to the Montgomery County, Texas Airport
Lease Agreement With Future Aerospace Services and Technology, Inc. dated June 12,
2000, which amended lease was assigned to Lessee by assignment dated June 19,
1.02 Reservations and Exceptions: Lessor demises and leases to Lessee the
leased premises to have and to hold the same said leased premises, together with all
rights, privileges, easements, appurtenances, and immunities belonging to or in any
way appertaining to said leased premises, subject to (1) the reservation herein by
Lessor of a non-exclusive right of ingress and egress over and across the airport ramp
areas to be constructed on the leased premises pursuant to this Lease and (2) the
terms and conditions set out in this Lease.
1.03 Access to Premises:· Access to Taxiways and Ramps. The parties
acknowledge that Lessee is executing this Lease and will be constructing improvements
on the leased premises in reliance on the leased premises having aircraft access to one
or more Airport runways during the term of the lease. Therefore, Lessor grants and
conveys to Lessee a non-exclusive easement {"Taxiway Access Easement"), for the
initial term (and any renewal term) of the lease on, over and across the area between
the leased premises and Taxiway DD for (a) the location and construction of ramps
connecting the leased premises to Taxiway DD, and (b) aircraft ingress, egress, and
access to, from, and between the leased premises and Taxiway DD If Lessor ever
relocates or replaces all or any portion of Taxiway DD, Lessor shall simultaneously
therewith grant and convey to Lessee a commercially reasonable easement for the
foregoing to the relocated or replacement taxiway. The Taxiway Access Easement shall
be for the benefit of and appurtenant to the leased premises. Lessee shall have the right
to permit its sublessees, employees, guests, licensees, contractors, agents, and
invitees to use the Taxiway Access Easement for the purposes stated above, in
compliance with the terms and condi
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NO. 23-08-11378 HANGAR ASSETS, LLC IN THE DISTRICT COURT Plaintiff 457th JUDICIAL DISTRICT JACK HUDDLESTON AND JC HANGARS, LLC Defendants MONTGOMERY COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANTS’ TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: Hangar Assets, LLC (“Plaintiff”) files is Response to the Motion for Summary Judgment filed by Jack Huddleston (“Huddleston”) and JC Hangars, LLC (“JC Hangars”), together, “Defendants,” and respectfully shows as follow SUMMARY OF THE ARGUMENT This is a case about Huddleston’s breach of an option contract for the purchase of two airplane hangars and associated fraud. Huddleston acquired a master lease to develop the hangars from Montgomery County. Plaintiff and Huddleston executed an option contract for the purchase of two hangars to be developed for $140,000 each. After a series of delays developing the hangars, Huddleston finally completed them. The problem is Huddleston transferred the master lease to his entity JC Hangars, and completely ignored his option obligations with Plaintiff Huddleston via JC Hangars sold the hangars to someone else for $80,000 more than what Huddleston optioned them to Plaintiff Because Huddleston’s actions were an obvious money grab in violation of his contractual obligations and contrary to the representations he made, Plaintiff sued for damages for breach of contract, common law fraud and fraudulent inducement, statutory fraud, DTPA violations and promissory estoppel. Defendants filed a traditional motion for summary judgment on the contract claims asserting that the option is an agreement to agree because it lacked material terms, and Plaintiff’s damages are capped at $3,000 pursuant to a liquidated damages clause. Defendants’ motion should be denied because no material terms were missing from the option contract, and the liquidated damages clause limiting Plaintiff’s damages to $3,000 is an unenforceable penalty under Texas law. Defendants also moved for a no evidence summary judgment on all claims. As shown below, there is ample (more than a scintilla of) evidence of all elements of Plaintiff’s claims, thus the motion should be denied. SUMMARY JUDGMENT EVIDENCE Plaintiff includes the following summary judgment evidence with this response and incorporates the evidence into this response by reference. Exhibit A Conroe North Houston Regional Airport Land Lease Agreement aster Leasebetween Montgomery County and Huddleston dated June 27, 2017 (“Master Lease”) Exhibit B Option to Purchase Partial Assignment of Land Lease for Aircraft Hangar between Huddleston and Plaintiff Option Contract”) dated August 19, 2021. Exhibit C Affidavit of Brandon Ray Exhibit D Copies of Huddleston JC Hangars’ other assignments Exhibit E Emails from Brandon Ray to Huddleston These assignments, as well as the Exhibit F and G assignments are public records filed in Montgomery County, Texas signed by County Judge Mark Keogh. Plaintiff asks tha t the Court take judicial notice of these documents. Exhibit F Partial Assignment of Land Lease Agreements dated June 23, and June 27, respectively whereby Defendants sold or otherwise leased Units 11 and 12. Exhibit G Assignment of Master Lease from Huddleston to JC Hangars LLC dated March 28, 2003. FACTS On or about June 27, 2017, Defendant, Jack Huddleston (“Huddleston”), entered into that certain Conroe North Houston Regional Airport Land Lease Agreement (“Master Lease”) whereby Montgomery County leased to Huddleston the real property located within an area and facility known as the Conroe North Houston Regional Airport situated in Montgomery, Texas. (the “Leased Premises”). Exhibit A. The Master Lease has a 40 year term, and Huddleston was to construct one or more aircraft hangars on the Leased Premises. Id. Plaintiff received a copy of the Master Lease from Huddleston. Exhibit C at ¶ 1; Exhibit B. On or about August 19, 2021, Plaintiff and Huddleston, individually, entered an Option to Purchase Partial Assignment of Land Lease for Aircraft Hangars (the “Option contract”). Exhibit B. In consideration of the Option Fee of $1,400.00 per hangar unit paid by Plaintiff to Huddleston, Huddleston granted to Plaintiff “the exclusive and irrevocable option to purchase the hangars located on the Leased Premises and identified as Building 33B Unit 11 & 12 (the “Hangars”) for $140,000.00 per hangar for a total of $280,000.00 payable at closing through cash or financing. See Exhibit B at p. 1. The Option contract did not have an expiration date. See Exhibit , C. Plaintiff executed the Option contract and paid the option fee of $1,400.00 per hangar at the time of execution, and likewise Huddleston executed the Option accepting the terms of the Option and becoming bound to perform. Exhibit B. The Master Lease was an Exhibit to the Option contract. Exhibit B at p. 1. The Option also has a requirement that Plaintiff obtain suitable financing for the purchase. Exhibit B at ¶ 7. Plaintiff obtained financing and the finance company was standing by ready to fund. SeeExhibit C Ray Affidavit at ¶ Plaintiff informed Huddleston that the units must be side-by-side for his intended purpose of leasing the units to a single tenant looking for such hangar space and that he would not enter the Option contract if the Hangars were not side-by-side. See Exhibit C – Ray Affidavit at ¶ . To accommodate this request, Huddleston granted option rights to the two side -by-side Hangars. Exhibit B Option Contract. Huddleston warranted in the Option that construction of the hangars would be completed within six (6) months of the execution date of August 19, 2021. Exhibit B at ¶5. At the time Plaintiff signed the Option contract, Huddleston made the following representations to Plaintiff, on which Plaintiff relied as he entered into the Option contract: the Option conferred the exclusive and irrevocable right to purchase a partial assignment of land lease including the Hangars; the Hangars would be substantially complete in 6 months; the price of the Hangars would be $140,000.00 each; the Hangars would be side-by-side hangars; Huddleston would not sell, transfer or lease the Hangars to third parties; Huddleston would keep Plaintiff updated on the progress of construction; Huddleston would notify Plaintiff when the Hangars were substantially complete so that Plaintiff could close the purchase/ lease of the Hangars; Huddleston would send Plaintiff the paperwork (Partial Assignment Agreement agreement) when it was ready to go, and that he would give enough notice to allow the bank appraiser to appraise the property; and Represented that there was nothing to negotiate on the assignment portion of the agreement because it was one he would prepare and it was the same standard agreement he would use on all the hangars he sold and/or leased to satisfy the ministerial act of Montgomery County approving the assignment. See Exhibit C, Ray Affidavit. Huddleston did not keep Plaintiff updated on the progress of construction as promised and never sent Plaintiff the paperwork (Partial Assignment Agreement) as promised. Id at ¶ Contrary to Huddleston claims in his motion, Plaintiff regularly contacted Huddleston to ask for status updates. Id. Most of the time Huddleston avoided Plaintiff and failed to return his phone calls, texts, or emails. Exhibit C. Plaintiff sent Huddleston at least seven emails asking about the status of the hangar. See Exhibit E emails to Huddleston. Following the signing of the Option contract, Plaintiff contacted Huddleston on at least six occasions by phone (in addition to the Exhibit E emails) with questions about the Hangars, the status of construction, and when he could close on the purchase. Exhibit C, Ray Affidavit at ¶10. Huddleston represented that progress was being made on the construction of the Hangars and that he was working on permits. Id. at ¶ Huddleston told Plaintiff on March 14, 2022, that he estimated they were 90 days out from completing construction. Id. On September 15, 2022, he told Plaintiff that he would be sending out the purchase contracts soon. Id. On March 13, 2023, Huddleston told Plaintiff that the Hangars were basically done and ready for closing after City inspection. Id. Huddleston never notified Plaintiff when construction was completed, that he was “calling in all the options,” or that he was ready for Plaintiff to exercise the Option contract. [Exhibit C, ¶15]. Of course, all of this was subterfuge because Huddleston was actively working to sell, and in fact did sell the Hangars to someone else for $80,000 more than what he had contracted to sell them to Plaintiff. Exhibit C Ray affidavit at ¶; Exhibit D Assignment of the Hangars to someone else. It wasn’t until July 18, 2023, that Plaintiff learned for the first time that Huddleston had purportedly “called in all options” four months prior and had already sold the Hangars and partial assignment to someone else. Exhibit C Ray Affidavit at ¶ . Without any warning or notice, Huddleston disregarded the terms of the Option contract and sold the Hangars to someone else in violation of the Option contract. Exhibit C, Ray Affidavit. Attached hereto as Exhibit F are the Partial Assignment of Land Lease Agreements with Consent of Lessor Conroe North Houston Regional Airport dated June 23, 2023, and June 27, 2023, respectively whereby Huddleston sold or otherwise leased the Hangars to someone else. During the July 18, 2023, phone conference between Plaintiff and Huddleston, Huddelston admitted the following: Only hangar unit 33A 1 and unit 33B10 which are not side-by-side are left to purchase; 14 or 15 hangar units have closed with appraisals in the past 90 days; Huddleston “called in” all options to close; Plaintiff “missed a lot of stuff” the last 4 months; 4 months ago, Plaintiff called for final inspections and at that point we had called in all the options; He asked the city for a final inspection, and it couldn’t get it as the electricity wasn’t on; In the meantime, Huddleston had been closing like crazy; He’d get back to Plaintiff that afternoon (he didn’t); The hangars are appraising for $222,000.00; and He isselling hangars at $180,000.00 and “ that’s where we are.” Exhibit C, Ray Affidavit. Plaintiff was denied the opportunity to buy the Hangars because unbeknownst to him, Huddleston had found buyers who paid substantially more money than he had agreed to sell them for, leaving Plaintiff without the Hangars he intended to purchase when he signed the Option contract. [Exhibit C Ray Affidavit at ¶19 t all times, Plaintiff was ready, willing and able to exercise his Option and purchase the two Hangars. Id. ¶19. After Huddleston admitted that he had sold the Hangars (in violation of the Option contract), he offered to sell the last two remaining hangars for an extra $40,000 per unit. Id. Finally, Plaintiff only recently discovered that Huddleston transferred the Master Lease to JC Hangars on March 28, 2023. Exhibit C, Ray Affidavit; Exhibit G, Assignment of Master Lease. As a result of Huddleston’s fraudulent actions nd breach of the Option contract Plaintiff has suffered a loss of market value of the Hangars and lost profits. If Plaintiff had acquired the Hangars as promised by Huddleston, Plaintiff could have sold hangar interests for a profit of at least $80,000, or he could have been leasing those to others and collecting rent all that time and far into the future. Exhibit C, Ray Affidavit at ¶. The market rate for renting the Hangars is $1,600.00 per month per unit for a total of $3,200.00 per month. Id. IV. SUMMARY JUDGMENTSTANDARD OF REVIEW No Evidence Summary Judgment Standard. In a no vidence motion for summary judgment, a movant can challenge a non movant to produce evidence to support one or more elements of the nonmovant’s claims on which the non movant would have the burden of proof at trial after an adequate time for discovery has passed. Huddleston must identify at least one essential element of each of Plaintiff’s causes of action for which there is no evidence. Tex. R. Civ. P. 166a(i). To defeat the no evidence grounds, Plaintiff need only adduce more than a scintilla of evidence raising a genuine issue of material fact as to each challenged element. Lightning Oil Co. v. Anadarko E & P Onshore, 520 S.W.3d 39, 45 (Tex. 2017). More than a scintilla of evidence is produced if the evidence is sufficient to allow reasonable and fair minded people to differ in their conclusions on whether the challenged fact exists. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). In evaluating whether more than a scintilla of evidence exists, the Court must view the evidence in the light most favorable to the non movant, crediting evidence favorable to the movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). B. Traditional Summary Judgment Standard. A traditional motion for summary judgment is only appropriate if the evidence shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). On traditional summary judgment grounds, Defendants bear the burden of showing that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. Tex. R. Civ. P. 166a(c). To meet that burden, Defendants are required to “conclusively negate at least one essential element of each of [Nonmovants] causes of action or conclusively prove all elements of an affirmative defense.” KCM Fin v. Brandshaw, 457 S.W.3d 70, 79 (Tex. 2015). When reviewing grounds for a traditional motion for summary judgment, the Court shall take as true all evidence favorable to Plaintiff/ movant and indulge every reasonable inference to resolve any doubts in the nonmovant’s favor. Sommers for Alabama & Dunlavy, Ltd. v. Sandcastle Homes, 521 S.W.3d 749, 754 (Tex. 2017) Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 49 (Tex. 1985 . Controverted evidence that favors the ovant will not be considered. Harwell v. State Farm Mut. Auto. Ins. Co., 869 S.W.2d 170, 173 (Tex. 1995) ARGUMENT AND AUTHORITIES Defendants’ Traditional Motion for Summary Judgment on Plaintiff’s Contract Claim because it is an Agreement to Agree Should be Denied. Material Contract Terms Defined Defendants assert they are entitled to summary judgment on Plaintiff’s breach of contract claim arguing the Option contract is an unenforceable “agreement to agree” because the Option contract lacked material terms; specifically, the required Partial Assignment Agreement was never prepared or executed. See Huddleston’s Motion at p. 7 -8. The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.Houston [1st Dist.] 2002, pet. denied). The elements of a valid, binding contract are (1) an offer, (2) acceptance of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Wal Mart Stores, Inc. v. Lopez, 93 S.W.3d 56 (Tex. App.- Houston [14th Dist.] 2002, no pet.). An option granted in a contract is a contract right. See Wall v. Trinity Sand & Gravel ., 369 S.W.2d 315, 317 18 (Tex.1963) (construing option provision under contract law); Sinclair Ref. Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185 (1949) (purchase option provision in lease agreement conferred contract rights on lessee); Corsicana Petroleum Co. v. Owens, 110 Tex. 568, 222 S.W. 154, 155 (1920) (contract granted the "right or option" to surrender lease under certain conditions). Property owners have the power to make valid contracts granting option rights in their property. Id. In turn, the courts have a duty to uphold and enforce such contracts. Id.A00CS Investors, Inc. v. McLaughlin, 913 S.W.2d 664 (Tex. App. 1995). "Agreements to enter into future contracts are enforceable if they contain all material terms." McCalla v. Baker’s Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013). When an "agreement to enter into a future contract already contains all the material terms of the future contract," courts can determine and enforce the parties' obligations, and concerns about indefiniteness and reasonable certainty do not arise. Id. Thus, an agreement that contains all of its essential terms is not unenforceable merely because the parties anticipate some future agreement. See McCalla, 416 S.W.3d at 418 (holding that even if settlement agreement in which party promised that he "will agree" and "agree[s] to enter an agreement" constituted "agreement to agree," it was nevertheless enforceable because it contained all material terms)."[T]he actions of the parties may conclusively establish their intention to enter a binding agreement even if some terms are left for future agreement." Tex. Oil Co. v. Tenneco, Inc., 917 S.W.2d 826, 830 (Tex. App. Houston [14 dist.] 1994, rev'd on other grounds, 958 S.W.2d 17 (Tex. 1997); see also RESTATEMENT (SECOND) OF CONTRACTS § 33(1) cmt. a (1981) ("the actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon."). In support of his argument, Defendants rely on the unpublished case Uribe v. Briar Ridge, LLC, No. 12-20-000167-CV at *19 (Tex. App. Texarkana, Dec. 29, 2021) (mem. opinion). The Uribe case is about a commercial restaurant tenant who had an option to purchase the commercial building that was the subject of the leaseId. at *3, 19. The court there held the option was an unenforceable agreement to agree because the option did not include a material term – the price to be paid. Id. No material terms are lacking in this case; all of the material terms are present in the Option contract. The identity and location of the Hangars is spelled out in the Option contract, including a map of where they would be located (side-by-side). Exhibit B Option Contract at p. 1 and Ex. C therein. The required Hangar features Huddleston was to construct are identified with specificity. Id. at Ex. D therein. The price to be paid is clearly stated ($140,000 per hangar). Id. at p.1. The Master Lease, a portion of which was to be assigned, was attached as an exhibit to the Option contract. Exhibit B, p.1; Exhibit A. The only items left to be completed to consummate the deal were Huddleston completing the Hangars, payment of the $140,000 per hangar price, and the parties executing a Partial Assignment Agreementassigning the Master LeaseId. at ¶ 9. Defendants hang their entire argument on the lack of a Partial Assignment Agreement, claiming that the terms are “material,” and that its terms remain a “mystery” because no Partial Assignment Agreement exists. See Huddleston Motion at p. 2. At best, Huddleston’s argument is disingenuous. The Partial Assignment Agreement assigns a portion of the Master Lease. Exhibit C Ray Affidavit at ¶ 5; Exhibit B; Exhibit F. Huddleston had already executed the Master Lease and sent a copy to Plaintiff at the time the Option contract was signed, thus the parties knew its terms. Exhibit C Ray Affidavit at ¶ In fact, the Master Lease was an exhibit to the Option contract. Exhibit B, p. 1. The terms of the Partial Assignment Agreement are no great secret. It is a form agreement to memorialize the assignment of a portion of the Master Lease to the purchaser of the individual hangars. Exhibit C, Ray Affidavit; Exhibits D, F. In fact, Huddleston prepared and subsequently executed several of the Partial Assignment Agreements for the Master Lease for his hangar sales to present to Montgomery County for its administrative approval. See e.g., Exhibits , F. Exhibit D is the Partial Assignment Agreements Assigning the Hangars to someone else her than Plaintiff. Note also that there is nothing material in the Partial Assignment Agreement terms. Id. All it does is assign the portion of the Master lease applicable to the Hangars. Id. The terms of the Master Lease Agreement were known by the parties, thus the Partial Assignment Agreement was merely a ministerial act to be submitted to and approved by Montgomery County Id.; Exhibit C. Because the Option contract was a valid contract containing all of the material terms, or alternatively, there is a fact issue as to the materiality of the Partial Assignment Agreement, Defendants’ motion for summary judgment on Plaintiff’s breach of Option contract claim should be denied. No Failure of Condition Precedent. Defendants also argue Plaintiff failed to invoke the Option contract because Plaintiff never executed the Partial Assignment Agreement as required by paragraph 2 of the Option Contract. See Huddleston’s Motion at p. 8 citing the Exhibit B Option contract at ¶2. Huddleston, however, represented to Plaintiff that he would forward the necessary Partial Assignment Agreement when the Hangars were complete. Exhibit C Ray Affidavit at ¶6, h. Plaintiff repeatedly told Huddleston he was ready to execute on the Option contract; all he needed to know was when the Hangars would be complete, and for Huddleston to hand off the promised Partial Assignment Agreement. Id. at ¶ Huddleston did not tell Plaintiff about the completion of the Hangars and never sent the Partial Assignment Agreement for execution because he was making a money grab for an extra $80,000 by selling the Hangars to someone else. Id.at ¶ Exhibit F. Now Huddleston is using his failure to deliver the Partial Assignment Agreement and execution as an excuse to avoid his Option contract obligations so he can pocket the extra $80,000 he received from selling the Hangars to someone else. Id. Because Huddleston mispresented he would deliver the Partial Assignment Agreement to Plaintiff (and did not), his fraud prevented Plaintiff’s performance and Huddleston’s motion should be denied. Minimally, there is a fact issue as to whether Huddleston’s false statements induced Plaintiff to rely on his representations and wait on him to deliver the draft Partial Assignment Agreement. Huddleston’s Traditional Motion for Summary Judgment Limiting Plaintiff’s Damages to the $3,000 Liquidated Damages Cap should be denied because it is an Unfair Penalty. Plaintiff also seeks summary judgment that Plaintiff’s damages are limited to $3,000 because the Option contract contains a liquated damages clause limiting damages for breach to $2,800 plus interest. In so doing, Defendants are admitting the validity of the Option contract (contrary to their first point), and that its terms limit Plaintiff’s damages. First, notably, Defendants HAVE remitted the damages it admits are owed under the liquidated damages clause. Defendants remain in breach of the Option contract for failing to tender the liquidated damages. For that reason alone, Defendants’ motion should be denied. Additionally, the liquidated damages clause is an unfair penalty and unenforceable under Texas law. As the party seeking to enforce a liquidated damages clause, Defendants must prove (1) the harm caused by the breach is incapable or difficult of estimation, and (2) the amount of liquidated damages called for is a reasonable forecast of just compensation. Stweart v. Basey, Note Defendants have not paid the $2,800 he admits he owes (minimally), thus Plaintiff is entitled to judgment for at least that (plus attorneys’ fees and interest). Exhibit C, Ray Affidavit at ¶ 245 S.W.2d 484, 486 (Tex. 1952). An unreasonably small liquidated damage clause is not enforceable: [I]f the sum stipulated to be paid should be treated as a penalty because it exceeds the actual loss, we see no reason why, when it is less than the actual loss, it should not be treated as a penalty. In the one case to permit a complainant to recover the stipulated sum would be to allow him more than compensation for his loss, and to the extent of the excess punish the defendant; while in the other case to limit the complainant to a recovery of the sum stipulated would be to deny him compensation for his loss, and to the extent of the denial punish him. The purpose of the law would be as entirely defeated in the one case as in the other. Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., 148 S.W. 1109 (Tex. Civ. App. Texarkana 1912, writ ref’d) ee also See U.C.C. § 2 718 comment 1, which states: “A term fixing unreasonably large liquidated damages is expressly made void as a penalty. An unreasonably small amount would be subject to similar criticism and might be stricken under the section on unconscionable contracts or clauses.” Id. Huddleston does not present any argument or facts that the $00 liquidated damages cap satisfies the elements required in Stewart, instead only arguing that its mere existence permissibly limits Plaintiff’s damages. It does not. Plaintiff’s damages are far in excess of the $ liquidated damages cap contained in the Option contract and are easily calculated. Huddleston sold the Hangars for $80,000 more than what he optioned them to Plaintiff. Exhibit C Ray Affidavit at ¶12, 20 Huddleston admitted the value of a single hangar was $220,000 and that he was selling them at $180,000 each by the time he completed the Hangars. Id. In fact, ignoring the price set in the Option contract, Huddleston had the nerve to offer the two remaining non contiguous hangars to Plaintiff at $180,000 each. Id. Minimally, Plaintiff’s damages are at least $80,000; more considering Plaintiff intended to lease the Hangars at $3,200 per month. Id. ecause the $ liquidated damages clause is not a reasonable forecast of the damages caused and thus unfairly penalizes Plaintiff, and Defendants ve not established (or offered any evidence) that the calculation of Plaintiff’s damages difficult to calculate or a reasonable estimation of Plaintiff’s damages, Huddleston’s motion for summary judgment on this point should be denied. C. Huddleston’s No Evidence Motion for Summary Judgment on Plaintiff’s Common Law Fraud and Fraudulent Inducement Claims should be Denied as there is Sufficient Evidence Supporting Each Element of Plaintiff’s Claim. Plaintiff sued Huddleston for common law fraud. Huddleston seeks a no evidence summary judgment on Plaintiff’s fraud claim. To prevail, Plaintiff need only show more than a scintilla of each element of its claim. Lightning Oil Co. 520 S.W.3d at 45. The elements of a cause of action for fraud are: (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re First Merit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001); Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 4237 S.W.3d 379, 385 (Tex. App.- Houston [14th Dist.] 2007, no pet.). Fraudulent inducement shares the same basic elements as a claim for common law fraud: a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury. Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018). The main difference versus a fraud claim is the existence of a valid contract. See id. Huddleston knowingly made the following materially false representations to Plaintiff knowing them to be false or with recklessness without knowing the truth: the Option contract conferred the exclusive and irrevocable right to purchase a partial assignment of land lease including the Hangars; the Hangars would be substantially complete in 6 months; the price of the Hangars would be $140,000.00 each; the Hangars would be side-by-side hangars; Huddleston would not sell, transfer or lease the Hangars to third parties; Huddleston would keep Plaintiff updated on the progress of construction; Huddleston would notify Plaintiff when the Hangars were substantially complete so that Plaintiff could close the purchase/ lease of the Hangars; Huddleston would send Plaintiff the paperwork (Partial Assignment Agreement) when it was ready to go, and that he would give enough notice to allow the bank appraiser to appraise the property, of which we discussed was a condition of the financing; and that there was nothing to negotiate on the assignment portion of the agreement because it was one he would prepare and it was the same standard agreement he would use on all the hangars he sold and/or leasedto satisfy the ministerial act of Montgomery County approving the assignment. Exhibit C, Ray Affidavit. Plaintiff relied on these representations to enter the Option contract and did not take action to prepare a Partial Assignment Agreement based on Huddleston’s promise to provide the document. Id. This has damaged Plaintiff minimally in the amount of the $ option fee Plaintiff paid, but far in excess of that as Plaintiff has incurred significantly greater damages - $80,000 minimum in lost market value admitted by Huddleston; more when lost lease revenue is considered. Exhibit C. Additionally, the Option contract was a valid contract. Huddleston offered Plaintiff an option to purchase two hangars, the agreement was supported the consideration of the $2,800 option fee that Plaintiff paid Huddleston, and the parties acknowledged their acceptance of the contract terms when they signed the Option contract. See Wal Mart Stores, Inc., 93 S.W.3d at 555- 56 (elements of a valid contract). Because there is more than a scintilla of evidence of each element of Plaintiff’s common law fraud claim, and the existence of a valid contract between the parties, Huddleston’s no evidence motion on Plaintiff’s common law fraud and fraudulent inducement claims should be denied. D. Huddleston’s No Evidence Motion for Summary Judgment on Plaintiff’s Statutory Fraud Claim should be Denied as there is Sufficient Evidence Supporting Each Element of Plaintiff’s Claim. laintiff sued Huddleston for statutory fraud based on Tex. Bus. & Com. Code Ann. § 27.01(a) (West 2009), which makes it unlawful to commit fraud in real estate and stock transaction. A person who commits statutory fraud is liable to the person defrauded not only for actual damages, but also for attorney's fees, expert witness fees, costs for copies of depositions, and costs of court. § 27.01(e) The proof that is required to establish statutory fraud is similar to that which is necessary to prove a claim for common law fraud; the difference is that this type of fraud is unique to real estate transactions. To recover under this theory, Plaintiff need only establish that (1) a transaction involving real estate or stock was involved; (2) the defendant made a false representation of a past or existing material fact or made a promise to perform an act with the intention of not fulfilling it; (3) the false representation or promise was made by the defendant for the purpose of inducing the plaintiff to enter into a contract; and (4) the plaintiff entered into the contract in reliance on the false representation or promise. Nelson, 630 S.W.3d at (citing Bus. & Com. § 27.01(a) see also Collective Asset Partners LLC v. Schaumburg S.W.3d 435, 443 (Tex. App.—Dallas 2014, pet. denied). A lease agreement with an option to purchase is a transaction involving real estate for purposes of statutory fraud. Wise v. Pena, 552 S.W.2d 196, 198, 202 (Tex. App.—Corpus Christi Edinburg 1977, writ dism'd) partially overruled on other grounds by Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 678 (Tex. 2000) There is more than a scintilla of evidence of each element of fraud committed by Huddleston within the meaning of Texas Business & Commerce Code §27.01. The Option contract to purchase the Hangars and acquire the assignment of part of the Master ease involves real estate. Id. As shown in detail above, Huddleston made several false representations not intending to fulfill them on which Plaintiff relied, and Plaintiff entered into the Option contract in reliance on Huddleston’s false statements thus damaging Plaintiff. See above and Exhibit C, Ray Affidavit. Because there is more than a scintilla of evidence on Plaintiff’ statutory fraud claim, Huddleston’s no evidence motion for summary judgment should be denied. E. Huddleston’s No Evidence Motion for Summary Judgment on Plaintiff’s DTPA Claim should be Denied as there is Sufficient Evidence Supporting Each Element of Plaintiff’s Claim. Plaintiff sued Huddleston under Tex. Bus. & Com. Code §17.50(a), which provides that a consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish: the use or employment by any person of a false, misleading, or deceptive act or practice that is specifically enumerated Section §17.46(b). Huddleston moved for a no evidence summary judgment on this claim. s detailed above, Huddleston committed deceptive acts and practices including, without limitation, causing confusion or misunderstanding about the source, sponsorship, approval or certification of the services, representing that the services have sponsorship, approval, characteristics, uses, or benefits that they do not have, representing that the services are of a particular standard, quality, or grade if they are not, advertising the services with the intent to not sell them as advertised, representing that an agreement confers or involves rights, remedies, or obligations that it does not, representing that a guarantee or warranty confers or involves rights or remedies that it does not, and the failure to disclose was intended to induce Plaintiffs to enter into a transaction that the Plaintiffs would not have entered into if the information had been disclosed. See Tex. Bus. & Com. Code §17.46(b). In addition to the above facts, Huddleston transferred his interest in the Master Lease to JC Hangars without notice to Plaintiff. Exhibit C, F. The aforementioned false, misleading, and deceptive acts and practices by Huddleston were relied on by Plaintiff to its detriment. See above and Exhibit C, Ray Affidavit. Further, as shown above, Huddleston engaged in an unconscionable action, or an unconscionable course of action as defined in Section 17.45(5), in that it took advantage of the lack of knowledge, ability or experience of Plaintiff to a grossly and unfair degree. Huddleston’s conduct resulted in a gross disparity between the value and rights conferred to Plaintiff for the Option to what it received. More specifically, and without limitation, Huddleston engaged in the following deceptive acts and practices and misrepresentations which he knew were false: Representing the Option conferred the right to purchase a partial assignment of land lease including the Hangars Representing that the Hangars would be substantially complete in 6 months; Representing that the price of the Hangars would be $140,000.00; Representing that Plaintiff could purchase or lease side side hangars; Representing that Huddleston would not sell, transfer or lease the Hangars to third parties; Representing that Huddleston would notify Plaintiff when the Hangars were substantially complete so that Plaintiff could close the purchase/ lease of the Hangars Transferring the Master Lease to JC Hangars without notice to Plaintiff and then selling the Hangars to someone else. Exhibit C, Ray Affidavit; Exhibit F. Plaintiff relied on Huddleston’s false, misleading, deceptive act or practices to their detriment, and Huddleston’s acts and omissions were the producing cause of Plaintiff’s damages. Id. Huddleston’s wrongful conduct was a producing cause of Plaintiff’s economic damages as detailed above. Id. Plaintiff seeks recovery for loss of market value of the Hangars, lost profits, consequential damages, statutory interest and attorneys’ fees as shown above and recited in Plaintiff’s affidavitId. Plaintiff seeks liquidated and unliquidated damages. Additionally, since Huddleston acted knowingly or intentionally, Plaintiff is entitled to recover treble damages under Texas Business & Commerce Code section 17.50(b)(1) being three times Plaintiff’s economic damages. Because there is more than scintilla of evidence supporting each element of Plaintiff’s DTPA claim, Huddleston’s no evidence motion should be denied. F. Defendants’ No Evidence Motion for Summary Judgment on Plaintiff’s Breach of Contract Claim should be Denied as there is Sufficient Evidence Supporting Each Element of Plaintiff’s Claim. Defendants also moved for a no evidence summary judgment on Plaintiff’s breach of contract claim. The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. Prime Prods., Inc, 97 S.W.3d at 636. The elements of a valid, binding contract are (1) an offer, (2) acceptance of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Wal Mart Stores, Inc.,93 S.W.3d at 555 Huddleston offered Plaintiff an option to purchase two hangars, the agreement was supported the consideration of the $2,800 option fee that Plaintiff paid Huddleston, and the parties acknowledged their acceptance of the contract terms when they signed the Option contract. Exhibit B. Huddleston and Plaintiff had a valid contract. See Wal Mart Stores, Inc.,93 S.W.3d at 555 56 (elements of a valid contract). Huddleston violated a material term of the Option contract when he failed to option the Hangars to Plaintiff as required by the Option contract. Exhibit C Ray Affidavit. Plaintiff was ready, willing and able to fund and close on the acquisition of the Hangars, yet Huddleston’s refused to agree to sell the Hangars to Plaintiff as required by and in violation of the Option Contract, instead demanding $80,000 more than what was agreed to in the Option contract. Id. Huddleston’s breach caused damage to Plaintiff of at least $80,000 as detailed above. Exhibit C, Ray Affidavit. Because there is more than a scintilla of evidence as to each element of Plaintiff’s breach of contract claim, Defendants’ no evidence motion for summary judgment should be denied. Defendants’ No Evidence Motion for Summary Judgment on Plaintiff’s Promissory Estoppel Claim should be Denied as there is Sufficient Evidence Supporting Each Element of Plaintiff’s Claim. Defendants moved for a no evidence summary judgment on Plaintiff’s promissory estoppel claim. The elements of a promissory estoppel claim are: The elements of a promissory estoppel claim are: (1) a promise; (2) reliance thereon that was foreseeable to the promisor; and (3) substantial reliance by the promisee to his detriment. Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 37879 (Tex. App.Houston [1st Dist.] 2007, no pet.) (citing English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983)). As described in detail hereinabove, by acts, words, or deeds, Huddelston promised to sell or otherwise lease the Hangars to Plaintiff along with several other representations which turned out to be false. Exhibit C, ay Affidavit. Huddleston subsequently transferred the Master Lease to JC Hangars, then JC Hangers sold the Hangars to someone else. Exhibits C, G. Plaintiff foreseeably, reasonably and substantially relied on Defendants’ promises to its detriment by entering into the Option contract and relying on Huddleston to send the Partial Assignment Agreement. Id. Plaintiff’s reliance was foreseeable by Huddleston and Plaintiff was damaged as a result. Id. Because there is more than a scintilla of evidence as to each element of Plaintiff’s promissory estoppel claim, Defendants’ no evidence motion for summary judgment should be denied. PRAYER For these reasons, Plaintiff Henagar Assets LLC respectfully requests that Defendants’ otion for Traditional and No Evidence Summary Judgment be denied and for such other and further relief to which Plaintiff may be entitled. Respectfully submitted, LEGIST, PLLC Fredreck S. “Field” Hudgens State Bar No. 24036811 Matthew G. Zagrodzky State Bar No. 24003228 L. Susan Herrera State Bar No. 09530160 1525 Lake Front Circle, Suite 2 The Woodlands, Texas 77380 Telephone: (713) 600-2727 Service@Legist.law ATTORNEYSFOR PLAINTIFF HANGAR ASSETS, LLC CERTIFICATE OF SERVICE I hereby certify that on April 12, 2024, a correct copy of this document was served via electronic service or electronic mail to all parties or counsel of record. Fredreck S. “Field” Hudgens CONROE-NORTH HOUSTON REGIONAL AIRPORT LAND LEASE AGREEMENT JUN27 2017 This Land Lease Agreement is made and entered into this 2017 ("Effective Date"), by and between MONTGOMERY COUNTY, a political subdivision of the State of Texas acting by and through its Commissioners Court, hereinafter referred to as "County" or "Lessor", and hereinafter referred to as "Lessee". DEMISE OF LEASED PREMISES 1.01 Leased Premises: In consideration of the prompt and timely payment of the rentals set out herein and the true and faithful performance by Lessee of all promises, covenants and obligations hereunder, Lessor hereby demises and leases unto Lessee, and Lessee hereby accepts for the term, and subject to the provisions hereof, the following described real properties (hereinafter referred to as "leased premises") located within an area and facility known as the Conroe-North Houston Regional Airport (hereinafter referred to as the "Airport") situated in Montgomery County, Texas, by the County pursuant to covenants and conditions contained in contracts, agreements, and resolutions between the County and the United States of America and its agents, including but not limited to the Federal Aviation Administration (FM), together with: (a) all improvements, fixtures, appurtenances, rights, privileges, and easements benefiting, belonging, or pertaining to the leased premises; and (b) to the extent assignable and without warranty, all right, title and interest of Lessor, if any, in and to utilities, sewage treatment capacity, water capacity, drainage, and detention rights, if any, to serve, or that will serve, the leased premises, but only to the extent that the same pertain exclusively to the leased premises and not to any other property of Lessor. (collectively hereinafter referred to as "leased premises"). The leased premises being the 1.808 acres (78,751 square feet) of land, more or less, and being more particularly described and/or depicted in Exhibit "A", which is attached hereto, including within the 1.808 acres the approximately 0.904 acres (39,378.24 sq. ft.) previously described in that Amendment to the Montgomery County, Texas Airport Lease Agreement With Future Aerospace Services and Technology, Inc. dated June 12, 2000, which amended lease was assigned to Lessee by assignment dated June 19, 1.02 Reservations and Exceptions: Lessor demises and leases to Lessee the leased premises to have and to hold the same said leased premises, together with all rights, privileges, easements, appurtenances, and immunities belonging to or in any way appertaining to said leased premises, subject to (1) the reservation herein by Lessor of a non-exclusive right of ingress and egress over and across the airport ramp areas to be constructed on the leased premises pursuant to this Lease and (2) the terms and conditions set out in this Lease. 1.03 Access to Premises:· Access to Taxiways and Ramps. The parties acknowledge that Lessee is executing this Lease and will be constructing improvements on the leased premises in reliance on the leased premises having aircraft access to one or more Airport runways during the term of the lease. Therefore, Lessor grants and conveys to Lessee a non-exclusive easement {"Taxiway Access Easement"), for the initial term (and any renewal term) of the lease on, over and across the area between the leased premises and Taxiway DD for (a) the location and construction of ramps connecting the leased premises to Taxiway DD, and (b) aircraft ingress, egress, and access to, from, and between the leased premises and Taxiway DD If Lessor ever relocates or replaces all or any portion of Taxiway DD, Lessor shall simultaneously therewith grant and convey to Lessee a commercially reasonable easement for the foregoing to the relocated or replacement taxiway. The Taxiway Access Easement shall be for the benefit of and appurtenant to the leased premises. Lessee shall have the right to permit its sublessees, employees, guests, licensees, contractors, agents, and invitees to use the Taxiway Access Easement for the purposes stated above, in compliance with the terms and condi