On May 26, 2005 a
Motion-Secondary
was filed
involving a dispute between
Broyles, Brooks,
Cole, Connie,
Cole, William,
Georgiou, Jeannine,
Schumacher, Cynthia Lockworth,
Schumacher, Damian,
Wardle, Heather,
Westerlage, Aristotelis,
Westerlage, Heather,
and
Douffet, Christopher Keith (Aka Keith Douffet Ind And Dba Rice Company,
Douffet, Keith,
Douffet, Laura Neff,
Douffet, Laura Rice,
Neff, William W,
Rice Company Builders Inc,
for FRAUD
in the District Court of Harris County.
Preview
CAUSE NO. 2005-34991
BROOKS BROYLES, § IN THE DISTRICT COURT
JEANNINE GEORGIOU §
CONNIE COLE, WILLIAM COLE, §
DAMIAN SCHUMACHER, Axis
CYNTHIA LOCKSWORTH SCHUMACHER, § cur
aly:
HEATHER WARDLE, § Qo OF
=
HEATHER WESTERLAGE AND § 2255
ARISTOTELIS WESTERLAGE, Lees
Plaintiffs OF HARRIS COUNE RTE ns
S
oO <=
=x ss >
VS.
THE RICE COMPANY BUILDERS
INC., WILLIAM NEFF, LAURA NEFF
a
DOUFFET,
Defendants 113TH JUDICIAL DISTRICT
DEFENDANT WILLIAM NEFF’S REPLY BRIEF IN SUPPORT OF OPPOSED
MOTION TO CANCEL LIS PENDENS
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant William Neff (“Neff”) hereby files. this Reply Brief in Support of his Opposed
Motion to Cancel Lis Pendens for failure to comply with section 12.007(a) of the Texas Property
Code. In support thereof, Neff would respectfully show unto the Court the following:
Although Plaintiffs repeatedly assert that they should prevail on each of their claims,
Plaintiffs have yet to identify a discernable interest that they have in the property that is currently
encumbered by the lis pendens. Plaintiffs believe they are entitled to a constructive trust on the
property based on alleged fraud and breach of fiduciary duty. Yet the Texas Supreme Court has
held that a plaintiff who seeks a constructive trust in property has “no more than a collateral
interest in the property.” Flores v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam)
(orig. proceeding) (citation omitted). Plaintiffs have yet to explain how this Court would have
RECORDER'S MEMORANDUM
05764.1 /948448.1 This instrument Is of poor quality
at the time of imaging
~ ~
the authority to transfer title to the property to them. See In re Wolf, 65 S.W.3d 804, 806 (Tex.
App.—Beaumont 2002, orig. proceeding) (per curiam). Therefore, the notice of lis pendens is
improper. Jd.
Plaintiffs believe they should prevail on the merits. Yet that is not the question before the
Court. The narrow, procedural question before the Court is whether Plaintiffs have a tangible
interest in the property on which the lis pendens was noticed. The answer to this question is no.
Plaintiffs have consequently conflated the merits of this case with the propriety of the notice of
lis pendens.
Plaintiffs rely on allegedly deemed admissions by Keith Douffet and Rice Company
Builders, Inc. However, William Neff—the party who has filed the present motion—has not
failed to respond to a request for admission. Nor have Plaintiffs contended otherwise. Plaintiffs
cannot evade the Texas Rules of Civil Procedure and use purported third-party admissions
against William Neff. See Tex. R. Civ. P. 198.3 (“A matter admitted under this rule is
conclusively established as to the party making the admission .... (emphasis added)).
Plaintiffs do not claim that the Court should transfer title to the residence located at 223
W. 31st Street to them. Accordingly, the interest asserted by Plaintiffs “is not one articulated in
Texas Property Code § 12.007(a)....” Flores, 915 S.W.2d at 478. Plaintiffs’ notice of lis
pendens is therefore improper.
WHEREFORE, PREMISES CONSIDERED, Defendant William Neff respectfully
requests that the Court grant this Motion to Cancel Lis Pendens for failure to comply with
section 12.007(a) of the Texas Property Code. Neff further requests that the Court cancel the lis
pendens noticed for the property located at 223 W. 31st Street, Houston, Texas 77018. Neff
05764.1 /948448.1
-=N ~
further prays for any such additional relief, either at law or in equity, to which he may be justly
entitled.
Respectfully submitted,
HAYS, McCONN, RICE & PIC CRP
iff
By IX
David V. Wilson,
State Bar No. 00784
Michael M. Gallagher
State Bar No. 24040941
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002
Telephone: (713) 654-1111
Facsimile: (713) 650-0027
ATTORNEYS FOR DEFENDANT WILLIAM
NEFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been duly sent via facsimile to all counsel of record on this the seventh day of July, 2006, as
follows:
Via Facsimile: (713) 877-0507
Mark A. Flaum
Mark A. Flaum & Associates
Attorneys at Law
2900 Weslayan, Suite 115
Houston, Texas 77027
Michael M. Gallagh
05764.1 / 948448.1
~ ~ oN
Hays, McConn, RICE & PICKERING
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
400 TWO ALLEN CENTER
MICHAEL M. GALLAGHER 1200 SMITH STREET DIRECT LINE (713) 752-6325
WWW.HAYSMCCONN.COM HOUSTON, TEXAS 77002 E-MAIL: MGALLAGHER@HAYSMCCONN.COM
TELEPHONE (713) 654-1111
TELECOPIER (713) 650-0027
July 7, 2006
asi
ear
oi
avo
Mr. Charles Bacarisse wo-5
District Clerk Poe
201 Caroline wReO >
=<
Houston, TX 77002 wee oe
aoc
x=
Re: Cause No. 2005-34991; Brooks Broyles, et al vs. The Rice Company Builders, Inc.,
et al; In the 113th Judicial District Court of Harris County, Texas.
Dear Mr. Bacarisse:
Enclosed please find the original and one copy of the following:
(1) Defendant, William Neff's Reply Brief in Support of Opposed Motion to Cancel Lis
Pendens.
Please file in your usual manner and return a file stamped copy to this office with the
courier. By copy of this letter, opposing counsel is being notified of this filing. Please do not
hesitate to call if you have any questions.
Sincerely Yours,
HAYS, McCONN, RICE & PICKERING
Michael M. Gallagher
MMGitgp
Enclosure
ce: Via Facsimile
Mark A. Flaum
Mark A. Flaum & Associates
2900 Weslayan, Suite 115
Houston, TX 77027
David Wilson [Firm]
05764.1 / 948468.1
Preview
CAUSE NO. 2005-34991 BROOKS BROYLES, § IN THE DISTRICT COURT JEANNINE GEORGIOU § CONNIE COLE, WILLIAM COLE, § DAMIAN SCHUMACHER, Axis CYNTHIA LOCKSWORTH SCHUMACHER, § cur aly: HEATHER WARDLE, § Qo OF = HEATHER WESTERLAGE AND § 2255 ARISTOTELIS WESTERLAGE, Lees Plaintiffs OF HARRIS COUNE RTE ns S oO <= =x ss > VS. THE RICE COMPANY BUILDERS INC., WILLIAM NEFF, LAURA NEFF a DOUFFET, Defendants 113TH JUDICIAL DISTRICT DEFENDANT WILLIAM NEFF’S REPLY BRIEF IN SUPPORT OF OPPOSED MOTION TO CANCEL LIS PENDENS TO THE HONORABLE JUDGE OF SAID COURT: Defendant William Neff (“Neff”) hereby files. this Reply Brief in Support of his Opposed Motion to Cancel Lis Pendens for failure to comply with section 12.007(a) of the Texas Property Code. In support thereof, Neff would respectfully show unto the Court the following: Although Plaintiffs repeatedly assert that they should prevail on each of their claims, Plaintiffs have yet to identify a discernable interest that they have in the property that is currently encumbered by the lis pendens. Plaintiffs believe they are entitled to a constructive trust on the property based on alleged fraud and breach of fiduciary duty. Yet the Texas Supreme Court has held that a plaintiff who seeks a constructive trust in property has “no more than a collateral interest in the property.” Flores v. Haberman, 915 S.W.2d 477, 478 (Tex. 1995) (per curiam) (orig. proceeding) (citation omitted). Plaintiffs have yet to explain how this Court would have RECORDER'S MEMORANDUM 05764.1 /948448.1 This instrument Is of poor quality at the time of imaging ~ ~ the authority to transfer title to the property to them. See In re Wolf, 65 S.W.3d 804, 806 (Tex. App.—Beaumont 2002, orig. proceeding) (per curiam). Therefore, the notice of lis pendens is improper. Jd. Plaintiffs believe they should prevail on the merits. Yet that is not the question before the Court. The narrow, procedural question before the Court is whether Plaintiffs have a tangible interest in the property on which the lis pendens was noticed. The answer to this question is no. Plaintiffs have consequently conflated the merits of this case with the propriety of the notice of lis pendens. Plaintiffs rely on allegedly deemed admissions by Keith Douffet and Rice Company Builders, Inc. However, William Neff—the party who has filed the present motion—has not failed to respond to a request for admission. Nor have Plaintiffs contended otherwise. Plaintiffs cannot evade the Texas Rules of Civil Procedure and use purported third-party admissions against William Neff. See Tex. R. Civ. P. 198.3 (“A matter admitted under this rule is conclusively established as to the party making the admission .... (emphasis added)). Plaintiffs do not claim that the Court should transfer title to the residence located at 223 W. 31st Street to them. Accordingly, the interest asserted by Plaintiffs “is not one articulated in Texas Property Code § 12.007(a)....” Flores, 915 S.W.2d at 478. Plaintiffs’ notice of lis pendens is therefore improper. WHEREFORE, PREMISES CONSIDERED, Defendant William Neff respectfully requests that the Court grant this Motion to Cancel Lis Pendens for failure to comply with section 12.007(a) of the Texas Property Code. Neff further requests that the Court cancel the lis pendens noticed for the property located at 223 W. 31st Street, Houston, Texas 77018. Neff 05764.1 /948448.1 -=N ~ further prays for any such additional relief, either at law or in equity, to which he may be justly entitled. Respectfully submitted, HAYS, McCONN, RICE & PIC CRP iff By IX David V. Wilson, State Bar No. 00784 Michael M. Gallagher State Bar No. 24040941 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 Telephone: (713) 654-1111 Facsimile: (713) 650-0027 ATTORNEYS FOR DEFENDANT WILLIAM NEFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been duly sent via facsimile to all counsel of record on this the seventh day of July, 2006, as follows: Via Facsimile: (713) 877-0507 Mark A. Flaum Mark A. Flaum & Associates Attorneys at Law 2900 Weslayan, Suite 115 Houston, Texas 77027 Michael M. Gallagh 05764.1 / 948448.1 ~ ~ oN Hays, McConn, RICE & PICKERING A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 400 TWO ALLEN CENTER MICHAEL M. GALLAGHER 1200 SMITH STREET DIRECT LINE (713) 752-6325 WWW.HAYSMCCONN.COM HOUSTON, TEXAS 77002 E-MAIL: MGALLAGHER@HAYSMCCONN.COM TELEPHONE (713) 654-1111 TELECOPIER (713) 650-0027 July 7, 2006 asi ear oi avo Mr. Charles Bacarisse wo-5 District Clerk Poe 201 Caroline wReO > =< Houston, TX 77002 wee oe aoc x= Re: Cause No. 2005-34991; Brooks Broyles, et al vs. The Rice Company Builders, Inc., et al; In the 113th Judicial District Court of Harris County, Texas. Dear Mr. Bacarisse: Enclosed please find the original and one copy of the following: (1) Defendant, William Neff's Reply Brief in Support of Opposed Motion to Cancel Lis Pendens. Please file in your usual manner and return a file stamped copy to this office with the courier. By copy of this letter, opposing counsel is being notified of this filing. Please do not hesitate to call if you have any questions. Sincerely Yours, HAYS, McCONN, RICE & PICKERING Michael M. Gallagher MMGitgp Enclosure ce: Via Facsimile Mark A. Flaum Mark A. Flaum & Associates 2900 Weslayan, Suite 115 Houston, TX 77027 David Wilson [Firm] 05764.1 / 948468.1