Preview
Electronically Filed
5/2/2016 12:00:00 AM
Lois Rogers, Smith County District Clerk
Reviewed By: Heather Alas
Cause No. 15-0678-A
Kay S. Bracken, K.S. Bracken § IN THE DISTRICT COURT
Family Limited Partnership, and §
Perot Minerals Ltd., §
§
Plaintiffs, §
§
vs. §
§
Larry S. Lott d/b/a Larry Lott Interiors, § SMITH COUNTY, TEXAS
§
Defendant and Cross-Claimant, §
§
vs. §
§
Chaley McCain, Woldert-McCain §
Realtors, LLC, McCain Realty, LLC, and §
James McCain, Jr. §
§
Defendants. § 7TH JUDICIAL DISTRICT
LARRY LOTT’S CROSS-CLAIM FOR DAMAGES AGAINST DEFENDANTS CHALEY
MCCAIN, WOLDERT-MCCAIN REALTY, LLC, LLC, MCCAIN REALTY LLC, AND
JAMES MCCAIN, JR.
I. Introduction
1. Defendant Larry S. Lott d/b/a Larry Lott Interiors (“Lott”) pursuant to Rule 97 of
the Texas Rules of Civil Procedure files this Cross-Claim for damages caused by a pattern of
racketeering activity carried out by Defendants Chaley McCain and James McCain, Jr.,
individually and in concert with one another, the purposes for and the effects of which were to
conduct and participate in the affairs of Woldert-McCain Realty, LLC and/or McCain Realty,
LLC. In support of his cross-claim, Lott will show the court as follows.
II. Discovery Control Plan
2. Lott intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure
190.3 and pleads that this cross-claim does not fall under the expedited actions process of Texas
Defendant Lott’s Cross-Claim 1
Rule of Civil Procedure 169. Lott seeks monetary relief over $1,000,000.00. Tex. R. Civ. P.
47(c)(5).
III. Parties
3. Plaintiff, Kay S. Bracken, is an individual residing in Smith County, Texas. No
citation is requested at this time.
4. Plaintiff, K.S. Bracken Family Limited Partnership, is a domestic limited
partnership. No citation is requested at this time.
5. Plaintiff, Perot Minerals, Ltd., is a domestic limited partnership. No citation is
requested at this time.
6. Defendant, Chaley McCain, is an individual who resides in Smith County, Texas.
She may be served with process at 807 Pinedale, Tyler, Texas 75701, or wherever she may be
found. No citation is requested at this time.
7. Woldert-McCain Realty, LLC, LLC d/b/a Re/Max Tyler is a company doing
business in Smith County Texas. It may be served through its registered agent for service of
process, who is James R. McCain, Jr., located at 4300 Kinsey Dr., Tyler, Texas 75703, or wherever
he may be found. No citation is requested at this time.
8. McCain Realty, LLC d/b/a McCain Realty is a limited liability company doing
business in Smith County Texas. It may be served through its registered agent for service of
process, who is James R. McCain, Jr., located at 4300 Kinsey Dr., Tyler, Texas 75703, or wherever
he may be found. No citation is requested at this time.
IV. Motion For Leave of Court to Join an Additional Responsible Party.
9. Defendant, James McCain, Jr., is an individual who resides in Smith County, Texas.
He may be served with process at 807 Pinedale, Tyler, Texas, 75703, or wherever he may be found.
Defendant Lott’s Cross-Claim 2
Pursuant to this court’s modified scheduling order, Lott seeks leave of court to join an additional
responsible party.
10. Upon information and belief, James McCain, Jr., acted as the supervisory real estate
broker for the transaction complained of in this cross-claim. Defendant Chaley McCain’s
Designation of Expert Witness, provides that James McCain, Jr. was personally involved in the
real estate transaction with Kay Bracken. As such, and in the interest of justice and fairness, James
McCain, Jr. should be joined as an additional responsible party.
V. Jurisdiction and Venue
11. The Court has subject-matter jurisdiction over this cross-claim because Lott seeks
an amount in excess of the minimal jurisdictional limits of this Court. The Court has venue over
this cross-claim because all or a substantial part of the events or omissions occurred in this county.
Tex. Civ. Prac. & Rem. Code § 15.002(a)(1)
VI. Restated Factual Allegations
12. Plaintiff Kay Bracken hired Chaley McCain, Woldert-McCain Realty, LLC, LLC
and/or McCain Realty, LLC, to serve as her buying agent for a property located at 7129 Turnberry
Circle, in Tyler, Texas. Chaley McCain acted as Kay Bracken’s real estate salesperson and/or her
real estate licensee. Upon information and belief, James McCain, Jr., acted as the supervisory real
estate broker for the transaction.
13. On or about Jan 15, 2013 Larry Lott is at The Dallas Market Center (a resource for
furniture retailers and professional interior designers) with Terry Fowler, a client and friend. Mr.
Lott receives a phone call from Chaley McCain and Kay Bracken, Chaley McCain says she has
just sold Kay Bracken a new house and she needs a new bed. This sort of introduction is common
in Mr. Lott's business as a courtesy from the realtor to their client. There is never an implication
Defendant Lott’s Cross-Claim 3
that the realtor will be monetarily compensated. Over the next several hours Lott sends via text
several pictures and prices of beds, bedding, and other items, and speaks with Ms. McCain and
Ms. Bracken several times. Kay Bracken purchases approximately $75,000 worth of furniture and
bedding that day. There is no discussion of commission or fees to be paid to Chaley McCain,
Woldert-McCain Realty, McCain Realty, or James McCain, Jr. at any time.
14. On January 17, 2013, Lott drives back to Tyler to deliver the Plaintiff’s
merchandise. Lott walks through the new home of Plaintiff with her real estate salesperson, Chaley
McCain, and Lott gives professional suggestions about how the home might be remodeled and
decorated to her taste. There is no discussion of commission or fees to be paid to Chaley McCain,
Woldert-McCain Realty, McCain Realty, or James McCain, Jr, at any time.
15. On January 18, 2013, Lott takes Plaintiff and Chaley McCain to view the home of
Terry Fowler which Lott has decorated. Neither Plaintiff nor Chaley McCain are familiar with
Lott’s work. The parties then discuss what might be done with Plaintiff’s home, as far as
decorations and interior design. There is no discussion of commission or fees to be paid to Chaley
McCain, Woldert-McCain Realty, McCain Realty, or James McCain, Jr. at any time.
16. On January 22, 2013, Lott, Plaintiff, and Chaley McCain visit the Dallas Market
Center together and shop for furniture and decorative items for Plaintiff’s new home. This is a
common professional service that Lott provides to new clients. There is no discussion of
commission or fees to be paid to Chaley McCain, Woldert-McCain Realty, McCain Realty, or
James McCain, Jr. at any time.
17. Later, Plaintiff has Lott return to the Dallas Market Center to purchase a $500 silk
flower arrangement in his professional capacity, as Plaintiff intended to give Chaley McCain a
thank you gift for the courtesy of introducing Lott to Plaintiff. There is no discussion of
Defendant Lott’s Cross-Claim 4
commission or fees to be paid to Chaley McCain, Woldert-McCain Realty, McCain Realty, or
James McCain, Jr. at any time.
18. On January 23, 2013, Lott received a phone call from Chaley McCain wherein she
demands that Lott pay her a commission of 10% on Plaintiff’s pruchases and further threatens
retaliation if Lott refuses. Chaley McCain further states to Lott that “This cash cow [the plaintiff]
will keep paying off and I intend to retire from work as long as you keep paying me. If not, I will
keep her from shopping with you.”
19. After the phone call, Lott was in shock, and felt threatened by Chaley McCain’s
threat of business disparagement. Lott usually provides small industry custom fee or a discount on
some limited services as a courtesy to those who refer clients, but he has no arrangements of
commission with any referring realtors, let alone Chaley McCain, Woldert-McCain Realty, LLC,
McCain Realty, or James McCain, Jr.
20. Further, Lott had no real response to the threats by Chaley McCain. Lott was
terrified by the threats of disparagement to his business and professional reputations and did not
agree to Chaley McCain’s demands, but did whatever was required to end the conversation under
the pretense of politeness.
21. Beginning February 2013 and continuing until Lott ceased making payments to her,
Chaley McCain came to Larry Lott Interiors on a monthly basis and demanded payments from
Larry Lott and/or his business manager and accountant. Chaley McCain continued to arrive on a
monthly basis and demanded payment from Lott.
22. On or about late December 2014, and under the advice of his accountant, Lott
ceased payments to McCain as he was making little to no profit on the Bracken project. After
stopping payments to Chaley McCain, Lott began to receive threatening communications from
Defendant Lott’s Cross-Claim 5
James McCain, Jr., which included future threats of legal proceedings against Lott. James McCain,
Jr., further stated to Lott that Lott should pay the alleged money owed Chaley McCain and, if he
did not, things would “get ugly.”
23. Shortly thereafter, McCain sued Lott for breach an alleged oral contract.
Claims for Relief
Count 1 – Extortion
(Lott Against Chaley McCain and James McCain, Jr.)
24. Lott realleges and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
25. In 2013 and continuing until December 2014, Chaley McCain and James McCain
Jr., made communications and threats to Lott the subject of which were to cause injury to Lott’s
business and property. Such threats were made with the intent to extort money or to gain pecuniary
advantage to compel Lott to pay the kickback scheme against his will.
26. By reason of the foregoing, Lott sustained actual damages and injuries.
Count 2 – Civil Conspiracy
(Lott Against Chaley McCain and James McCain, Jr.)
27. Lott realleges and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
28. The Defendants Chaley McCain and James McCain, Jr., acting individually and in
concert with one another, with scienter did conspire to defraud and exercise dominion and control
over the personal property of Defendant Lott by the use of communications and threats.
29. The Defendants Chaley McCain and James McCain, Jr., with scienter had a meeting
of the minds to carry out a conspiracy to defraud and exercise dominion and control over the
personal property of Defendant Lott.
30. The Defendants Chaley McCain and James McCain, Jr., did in fact commit an
Defendant Lott’s Cross-Claim 6
unlawful and overt act by violating § 1101.652 Texas Occupations Code, by engaging in conduct
that is dishonest or in bad faith or that demonstrates untrustworthiness.
31. By reason of the foregoing, Defendant Lott has sustained actual damages,
attorney’s fees and costs.
Count 3 – Fraud
(Lott Against Chaley McCain and James McCain, Jr.)
32. Lott reallages and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
33. Chaley McCain and James McCain, Jr., made representations to Lott that were
material and false. Such conduct included making representations that Chaley McCain was
permitted to receive the kickback scheme complained of in this cross-claim, when in fact she was
barred from doing so by the rules governing real estate licensees in Texas.
34. When Chaley McCain made the representations, she knew they were false or made
them recklessly without the knowledge for their truth.
35. Chaley McCain intended for Lott to act on the misrepresentations, and in fact Lott
did; and Lott was injured as a result.
36. By reason of the foregoing, Lott has sustained damages, injuries, attorney’s fees
and costs.
Count 4 – Fraud by Nondisclosure
(Lott Against Chaley McCain and James McCain, Jr.)
37. Lott realleges and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
38. The Defendants Chaley McCain and James McCain, Jr., concealed from Lott that
she was not permitted to receive the kickback scheme complained of in this cross-claim.
39. The Defendant Chaley McCain and James McCain, Jr., had a duty to disclose to
Defendant Lott’s Cross-Claim 7
Lott the fact she was not permitted to receive any type of kickback scheme.
40. The Defendants Chaley McCain and James McCain Jr., knew that Lott was either
ignorant of the facts and that Lott did not have an equal opportunity to discover that Chaley
McCain was not permitted to receive the kickback scheme.
41. The Defendants Chaley McCain and James McCain Jr. were deliberately silent
when they had a duty to speak.
42. Lott relied on Chaley McCain and James McCain Jr.’s nondisclosure, which Lott
was injured as a result of his acting without the knowledge of the undisclosed facts.
43. By reason of the foregoing, Lott sustained damages.
Count 5 – Conversion
(Lott Against Chaley McCain and James McCain, Jr.)
44. Lott realleges and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
45. Lott sues Chaley McCain, McCain Realty, LLC, Woldert-McCain Realty, LLC,
and James McCain, Jr., for conversion. Defendants used deception, acts constituting extortion, and
unethical practices to wrongfully exercise dominion and control over Lott’s personal property.
46. By reason of the foregoing, Lott has sustained damages.
Count 6 – Negligence and Gross Negligence
(Lott Against Chaley McCain and James McCain, Jr.)
47. Lott realleges and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
48. Defendants Chaley McCain, Re/Max Tyler, and/or McCain Realty have duties
found in the Texas Occupations Code Chapter 1101.652 (b) (1-2), which states that the
commission may suspend or revoke a license issued under this chapter or take other disciplinary
action authorized by this chapter if the license holder, while acting as a broker or salesperson: (1)
Defendant Lott’s Cross-Claim 8
acts negligently or incompetently; or (2) engages in conduct that is dishonest or in bad faith or that
demonstrates untrustworthiness.
49. The Defendants Chaley McCain, Re/Max Tyler, and/or McCain Realty engaged in
conduct that was in bad faith and that demonstrated untrustworthiness in violation of Occupations
Code 1101.652 (b) (2).
50. By reason of the foregoing, Lott has sustained damages.
Count 7 – Discovery Rule and Fraudulent Concealment
(Lott Against Chaley McCain, McCain Realty, LLC, Woldert-McCain Realty, LLC,
and James McCain, Jr.)
51. Lott realleges and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
52. Lott pleads the discovery rule and fraudulent concealment.
Count 8 – Equitable Disgorgement and Constructive Trust
(Lott Against Chaley McCain, McCain Realty, LLC, Woldert-McCain Realty, LLC,
and James McCain, Jr.)
53. Lott realleges and incorporates by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
54. Lott seeks a constructive trust over and equitable disgorgement of all monies paid
by Lott as a result of extortion, fraud, misrepresentation, and conversion by Chaley McCain,
Woldert-McCain Realty, LLC, McCain-Realty, LLC, and James McCain, Jr.
Damages
55. As a direct and proximate result of the occurrences made the basis of this lawsuit,
Lott suffered economic injuries and damages. Lott sues to recover all money wrongfully paid to
Defendants.
56. Lott seeks recovery of unliquidated damages within the jurisdictional limits of this
Defendant Lott’s Cross-Claim 9
Court. Defendants Chaley McCain and James McCain, Jr., acted knowingly, intentionally, with
malice, and as a result, Lott seeks exemplary and punitive damages.
57. Lott seeks that all damages complained of in Plaintiff’s suit be rendered against
Defendants Chaley McCain, Woldert-McCain Realty, LLC, McCain-Realty, LLC, and James
McCain, Jr., jointly and severally.
Request for Disclosure and Written Discovery.
58. Pursuant to Tex. R. Civ. P. 194, Lott requests that the Defendants disclose the
information and material described in Tex. R. Civ. P. 194.2.
Prayer for Relief
59. For these reasons, Lott respectfully prays that the Defendants be cited to appear and
answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiffs
against Defendants for the following:
a) Damages in an amount within the jurisdictional limits of the Court;
b) An accounting;
c) A constructive trust;
d) Equitable disgorgement;
e) Exemplary damages and/or treble damages;
f) Prejudgment interest as provided by law;
g) Post-judgment interest as provided by law;
h) Lott’s reasonable and necessary attorney’s fees;
i) All costs of suit; and
j) Such other and further relief, at law or in equity, to which the Lott may show
Defendant Lott’s Cross-Claim 10
themselves justly entitled.
Respectfully Submitted,
By: /s/ Amy D. Long
Attorney at Law
100 East Ferguson, Suite 610
Tyler, Texas 75702
903-592-1641 office
903-592-8043 facsimile
amy@amydlong.com
State Bar No. 24036984
Nicholas L. Everett
State Bar No. 24087005
514 Hampton Hill
Tyler, Texas 75703
Phone: (903) 530-1115
Nick.everett83@gmail.com
Attorneys for Defendant Larry Lott
Certificate of Service
I certify that on May 1, 2016 a true and correct copy of Larry Lott’s Cross-Claim was served on
counsel of record by email, in which the electronic transmissions were recorded as complete.
/s/ Nicholas L. Everett
Nicholas L. Everett
Defendant Lott’s Cross-Claim 11
Defendant Lott’s Cross-Claim 12
Preview
Electronically Filed 5/2/2016 12:00:00 AM Lois Rogers, Smith County District Clerk Reviewed By: Heather Alas Cause No. 15-0678-A Kay S. Bracken, K.S. Bracken § IN THE DISTRICT COURT Family Limited Partnership, and § Perot Minerals Ltd., § § Plaintiffs, § § vs. § § Larry S. Lott d/b/a Larry Lott Interiors, § SMITH COUNTY, TEXAS § Defendant and Cross-Claimant, § § vs. § § Chaley McCain, Woldert-McCain § Realtors, LLC, McCain Realty, LLC, and § James McCain, Jr. § § Defendants. § 7TH JUDICIAL DISTRICT LARRY LOTT’S CROSS-CLAIM FOR DAMAGES AGAINST DEFENDANTS CHALEY MCCAIN, WOLDERT-MCCAIN REALTY, LLC, LLC, MCCAIN REALTY LLC, AND JAMES MCCAIN, JR. I. Introduction 1. Defendant Larry S. Lott d/b/a Larry Lott Interiors (“Lott”) pursuant to Rule 97 of the Texas Rules of Civil Procedure files this Cross-Claim for damages caused by a pattern of racketeering activity carried out by Defendants Chaley McCain and James McCain, Jr., individually and in concert with one another, the purposes for and the effects of which were to conduct and participate in the affairs of Woldert-McCain Realty, LLC and/or McCain Realty, LLC. In support of his cross-claim, Lott will show the court as follows. II. Discovery Control Plan 2. Lott intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190.3 and pleads that this cross-claim does not fall under the expedited actions process of Texas Defendant Lott’s Cross-Claim 1 Rule of Civil Procedure 169. Lott seeks monetary relief over $1,000,000.00. Tex. R. Civ. P. 47(c)(5). III. Parties 3. Plaintiff, Kay S. Bracken, is an individual residing in Smith County, Texas. No citation is requested at this time. 4. Plaintiff, K.S. Bracken Family Limited Partnership, is a domestic limited partnership. No citation is requested at this time. 5. Plaintiff, Perot Minerals, Ltd., is a domestic limited partnership. No citation is requested at this time. 6. Defendant, Chaley McCain, is an individual who resides in Smith County, Texas. She may be served with process at 807 Pinedale, Tyler, Texas 75701, or wherever she may be found. No citation is requested at this time. 7. Woldert-McCain Realty, LLC, LLC d/b/a Re/Max Tyler is a company doing business in Smith County Texas. It may be served through its registered agent for service of process, who is James R. McCain, Jr., located at 4300 Kinsey Dr., Tyler, Texas 75703, or wherever he may be found. No citation is requested at this time. 8. McCain Realty, LLC d/b/a McCain Realty is a limited liability company doing business in Smith County Texas. It may be served through its registered agent for service of process, who is James R. McCain, Jr., located at 4300 Kinsey Dr., Tyler, Texas 75703, or wherever he may be found. No citation is requested at this time. IV. Motion For Leave of Court to Join an Additional Responsible Party. 9. Defendant, James McCain, Jr., is an individual who resides in Smith County, Texas. He may be served with process at 807 Pinedale, Tyler, Texas, 75703, or wherever he may be found. Defendant Lott’s Cross-Claim 2 Pursuant to this court’s modified scheduling order, Lott seeks leave of court to join an additional responsible party. 10. Upon information and belief, James McCain, Jr., acted as the supervisory real estate broker for the transaction complained of in this cross-claim. Defendant Chaley McCain’s Designation of Expert Witness, provides that James McCain, Jr. was personally involved in the real estate transaction with Kay Bracken. As such, and in the interest of justice and fairness, James McCain, Jr. should be joined as an additional responsible party. V. Jurisdiction and Venue 11. The Court has subject-matter jurisdiction over this cross-claim because Lott seeks an amount in excess of the minimal jurisdictional limits of this Court. The Court has venue over this cross-claim because all or a substantial part of the events or omissions occurred in this county. Tex. Civ. Prac. & Rem. Code § 15.002(a)(1) VI. Restated Factual Allegations 12. Plaintiff Kay Bracken hired Chaley McCain, Woldert-McCain Realty, LLC, LLC and/or McCain Realty, LLC, to serve as her buying agent for a property located at 7129 Turnberry Circle, in Tyler, Texas. Chaley McCain acted as Kay Bracken’s real estate salesperson and/or her real estate licensee. Upon information and belief, James McCain, Jr., acted as the supervisory real estate broker for the transaction. 13. On or about Jan 15, 2013 Larry Lott is at The Dallas Market Center (a resource for furniture retailers and professional interior designers) with Terry Fowler, a client and friend. Mr. Lott receives a phone call from Chaley McCain and Kay Bracken, Chaley McCain says she has just sold Kay Bracken a new house and she needs a new bed. This sort of introduction is common in Mr. Lott's business as a courtesy from the realtor to their client. There is never an implication Defendant Lott’s Cross-Claim 3 that the realtor will be monetarily compensated. Over the next several hours Lott sends via text several pictures and prices of beds, bedding, and other items, and speaks with Ms. McCain and Ms. Bracken several times. Kay Bracken purchases approximately $75,000 worth of furniture and bedding that day. There is no discussion of commission or fees to be paid to Chaley McCain, Woldert-McCain Realty, McCain Realty, or James McCain, Jr. at any time. 14. On January 17, 2013, Lott drives back to Tyler to deliver the Plaintiff’s merchandise. Lott walks through the new home of Plaintiff with her real estate salesperson, Chaley McCain, and Lott gives professional suggestions about how the home might be remodeled and decorated to her taste. There is no discussion of commission or fees to be paid to Chaley McCain, Woldert-McCain Realty, McCain Realty, or James McCain, Jr, at any time. 15. On January 18, 2013, Lott takes Plaintiff and Chaley McCain to view the home of Terry Fowler which Lott has decorated. Neither Plaintiff nor Chaley McCain are familiar with Lott’s work. The parties then discuss what might be done with Plaintiff’s home, as far as decorations and interior design. There is no discussion of commission or fees to be paid to Chaley McCain, Woldert-McCain Realty, McCain Realty, or James McCain, Jr. at any time. 16. On January 22, 2013, Lott, Plaintiff, and Chaley McCain visit the Dallas Market Center together and shop for furniture and decorative items for Plaintiff’s new home. This is a common professional service that Lott provides to new clients. There is no discussion of commission or fees to be paid to Chaley McCain, Woldert-McCain Realty, McCain Realty, or James McCain, Jr. at any time. 17. Later, Plaintiff has Lott return to the Dallas Market Center to purchase a $500 silk flower arrangement in his professional capacity, as Plaintiff intended to give Chaley McCain a thank you gift for the courtesy of introducing Lott to Plaintiff. There is no discussion of Defendant Lott’s Cross-Claim 4 commission or fees to be paid to Chaley McCain, Woldert-McCain Realty, McCain Realty, or James McCain, Jr. at any time. 18. On January 23, 2013, Lott received a phone call from Chaley McCain wherein she demands that Lott pay her a commission of 10% on Plaintiff’s pruchases and further threatens retaliation if Lott refuses. Chaley McCain further states to Lott that “This cash cow [the plaintiff] will keep paying off and I intend to retire from work as long as you keep paying me. If not, I will keep her from shopping with you.” 19. After the phone call, Lott was in shock, and felt threatened by Chaley McCain’s threat of business disparagement. Lott usually provides small industry custom fee or a discount on some limited services as a courtesy to those who refer clients, but he has no arrangements of commission with any referring realtors, let alone Chaley McCain, Woldert-McCain Realty, LLC, McCain Realty, or James McCain, Jr. 20. Further, Lott had no real response to the threats by Chaley McCain. Lott was terrified by the threats of disparagement to his business and professional reputations and did not agree to Chaley McCain’s demands, but did whatever was required to end the conversation under the pretense of politeness. 21. Beginning February 2013 and continuing until Lott ceased making payments to her, Chaley McCain came to Larry Lott Interiors on a monthly basis and demanded payments from Larry Lott and/or his business manager and accountant. Chaley McCain continued to arrive on a monthly basis and demanded payment from Lott. 22. On or about late December 2014, and under the advice of his accountant, Lott ceased payments to McCain as he was making little to no profit on the Bracken project. After stopping payments to Chaley McCain, Lott began to receive threatening communications from Defendant Lott’s Cross-Claim 5 James McCain, Jr., which included future threats of legal proceedings against Lott. James McCain, Jr., further stated to Lott that Lott should pay the alleged money owed Chaley McCain and, if he did not, things would “get ugly.” 23. Shortly thereafter, McCain sued Lott for breach an alleged oral contract. Claims for Relief Count 1 – Extortion (Lott Against Chaley McCain and James McCain, Jr.) 24. Lott realleges and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 25. In 2013 and continuing until December 2014, Chaley McCain and James McCain Jr., made communications and threats to Lott the subject of which were to cause injury to Lott’s business and property. Such threats were made with the intent to extort money or to gain pecuniary advantage to compel Lott to pay the kickback scheme against his will. 26. By reason of the foregoing, Lott sustained actual damages and injuries. Count 2 – Civil Conspiracy (Lott Against Chaley McCain and James McCain, Jr.) 27. Lott realleges and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 28. The Defendants Chaley McCain and James McCain, Jr., acting individually and in concert with one another, with scienter did conspire to defraud and exercise dominion and control over the personal property of Defendant Lott by the use of communications and threats. 29. The Defendants Chaley McCain and James McCain, Jr., with scienter had a meeting of the minds to carry out a conspiracy to defraud and exercise dominion and control over the personal property of Defendant Lott. 30. The Defendants Chaley McCain and James McCain, Jr., did in fact commit an Defendant Lott’s Cross-Claim 6 unlawful and overt act by violating § 1101.652 Texas Occupations Code, by engaging in conduct that is dishonest or in bad faith or that demonstrates untrustworthiness. 31. By reason of the foregoing, Defendant Lott has sustained actual damages, attorney’s fees and costs. Count 3 – Fraud (Lott Against Chaley McCain and James McCain, Jr.) 32. Lott reallages and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 33. Chaley McCain and James McCain, Jr., made representations to Lott that were material and false. Such conduct included making representations that Chaley McCain was permitted to receive the kickback scheme complained of in this cross-claim, when in fact she was barred from doing so by the rules governing real estate licensees in Texas. 34. When Chaley McCain made the representations, she knew they were false or made them recklessly without the knowledge for their truth. 35. Chaley McCain intended for Lott to act on the misrepresentations, and in fact Lott did; and Lott was injured as a result. 36. By reason of the foregoing, Lott has sustained damages, injuries, attorney’s fees and costs. Count 4 – Fraud by Nondisclosure (Lott Against Chaley McCain and James McCain, Jr.) 37. Lott realleges and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 38. The Defendants Chaley McCain and James McCain, Jr., concealed from Lott that she was not permitted to receive the kickback scheme complained of in this cross-claim. 39. The Defendant Chaley McCain and James McCain, Jr., had a duty to disclose to Defendant Lott’s Cross-Claim 7 Lott the fact she was not permitted to receive any type of kickback scheme. 40. The Defendants Chaley McCain and James McCain Jr., knew that Lott was either ignorant of the facts and that Lott did not have an equal opportunity to discover that Chaley McCain was not permitted to receive the kickback scheme. 41. The Defendants Chaley McCain and James McCain Jr. were deliberately silent when they had a duty to speak. 42. Lott relied on Chaley McCain and James McCain Jr.’s nondisclosure, which Lott was injured as a result of his acting without the knowledge of the undisclosed facts. 43. By reason of the foregoing, Lott sustained damages. Count 5 – Conversion (Lott Against Chaley McCain and James McCain, Jr.) 44. Lott realleges and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 45. Lott sues Chaley McCain, McCain Realty, LLC, Woldert-McCain Realty, LLC, and James McCain, Jr., for conversion. Defendants used deception, acts constituting extortion, and unethical practices to wrongfully exercise dominion and control over Lott’s personal property. 46. By reason of the foregoing, Lott has sustained damages. Count 6 – Negligence and Gross Negligence (Lott Against Chaley McCain and James McCain, Jr.) 47. Lott realleges and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 48. Defendants Chaley McCain, Re/Max Tyler, and/or McCain Realty have duties found in the Texas Occupations Code Chapter 1101.652 (b) (1-2), which states that the commission may suspend or revoke a license issued under this chapter or take other disciplinary action authorized by this chapter if the license holder, while acting as a broker or salesperson: (1) Defendant Lott’s Cross-Claim 8 acts negligently or incompetently; or (2) engages in conduct that is dishonest or in bad faith or that demonstrates untrustworthiness. 49. The Defendants Chaley McCain, Re/Max Tyler, and/or McCain Realty engaged in conduct that was in bad faith and that demonstrated untrustworthiness in violation of Occupations Code 1101.652 (b) (2). 50. By reason of the foregoing, Lott has sustained damages. Count 7 – Discovery Rule and Fraudulent Concealment (Lott Against Chaley McCain, McCain Realty, LLC, Woldert-McCain Realty, LLC, and James McCain, Jr.) 51. Lott realleges and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 52. Lott pleads the discovery rule and fraudulent concealment. Count 8 – Equitable Disgorgement and Constructive Trust (Lott Against Chaley McCain, McCain Realty, LLC, Woldert-McCain Realty, LLC, and James McCain, Jr.) 53. Lott realleges and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 54. Lott seeks a constructive trust over and equitable disgorgement of all monies paid by Lott as a result of extortion, fraud, misrepresentation, and conversion by Chaley McCain, Woldert-McCain Realty, LLC, McCain-Realty, LLC, and James McCain, Jr. Damages 55. As a direct and proximate result of the occurrences made the basis of this lawsuit, Lott suffered economic injuries and damages. Lott sues to recover all money wrongfully paid to Defendants. 56. Lott seeks recovery of unliquidated damages within the jurisdictional limits of this Defendant Lott’s Cross-Claim 9 Court. Defendants Chaley McCain and James McCain, Jr., acted knowingly, intentionally, with malice, and as a result, Lott seeks exemplary and punitive damages. 57. Lott seeks that all damages complained of in Plaintiff’s suit be rendered against Defendants Chaley McCain, Woldert-McCain Realty, LLC, McCain-Realty, LLC, and James McCain, Jr., jointly and severally. Request for Disclosure and Written Discovery. 58. Pursuant to Tex. R. Civ. P. 194, Lott requests that the Defendants disclose the information and material described in Tex. R. Civ. P. 194.2. Prayer for Relief 59. For these reasons, Lott respectfully prays that the Defendants be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiffs against Defendants for the following: a) Damages in an amount within the jurisdictional limits of the Court; b) An accounting; c) A constructive trust; d) Equitable disgorgement; e) Exemplary damages and/or treble damages; f) Prejudgment interest as provided by law; g) Post-judgment interest as provided by law; h) Lott’s reasonable and necessary attorney’s fees; i) All costs of suit; and j) Such other and further relief, at law or in equity, to which the Lott may show Defendant Lott’s Cross-Claim 10 themselves justly entitled. Respectfully Submitted, By: /s/ Amy D. Long Attorney at Law 100 East Ferguson, Suite 610 Tyler, Texas 75702 903-592-1641 office 903-592-8043 facsimile amy@amydlong.com State Bar No. 24036984 Nicholas L. Everett State Bar No. 24087005 514 Hampton Hill Tyler, Texas 75703 Phone: (903) 530-1115 Nick.everett83@gmail.com Attorneys for Defendant Larry Lott Certificate of Service I certify that on May 1, 2016 a true and correct copy of Larry Lott’s Cross-Claim was served on counsel of record by email, in which the electronic transmissions were recorded as complete. /s/ Nicholas L. Everett Nicholas L. Everett Defendant Lott’s Cross-Claim 11 Defendant Lott’s Cross-Claim 12