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FILED
10/26/2020 3:34PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
MartinReyes DEPUTY
Marti“ Reyes
No. DC—20—12534
RENATA PETRYLIENE and BIG RIVER § IN THE DISTRICT COURT
NV LLC §
§
Plaintiffs §
§
v. § 19lsT JUDICIAL DISTRICT
§
BRADFORD PHILLIPS AS THE
EXECUTOR OF THE ESTATE OF g
GENE PHILLIPS, et al., § DALLAS COUNTY, TEXAS
§
Defendants. §
ORIGINAL ANSWER, PLEA TO THE JURISDICTION
AND REQUEST FOR DISCLOSURE SUBJECT
THERETO
Comes now Defendant Bradford A. Phillips, in his capacity as the Executor of the Estate
of Gene E. Phillips (“Executor”), one of the Defendants in the above-styled and numbered cause
and files this, his Plea to the Jurisdiction and Original Answer Subj ect Thereto t0 the suit filed by
Plaintiffs, and would respectfully show the Court as follows:
I. PLEA TO THE JURISDICTION
The Defendant Executor would show that he is the duly appointed Executor of the Estate
of Gene E. Phillips, and that those probate proceedings are currently pending in N0. 19-02830-1,
Estate 0f Gene E. Phillips, Deceased, Probate Court No. 1 of Dallas County, and Defendant
Executor would accordingly show that pursuant t0 §32.005(a) 0f the Texas Probate Code that that
court has exclusive jurisdiction over the claims that Plaintiffs bring herein.
Accordingly, Defendant Executor requests that the Court dismiss the claims brought
against him in this suit in favor of the statutory probate court’s jurisdiction.
ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT
THERETO — Page 1
II. ORIGINAL ANSWER
A. GENERAL DENIAL
Defendant Executor denies generally each and every, all and singular, the allegations
contained in Plaintiff’s Original Petition, and since they are but mere allegations 0f fact, demand
strict proof thereof by a preponderance of the evidence in accordance With the laws 0f the State 0f
Texas.
B. DENIAL OF CONDITIONS PRECEDENT
Defendant Executor denies that all conditions precedent t0 Plaintiffs’ recovery have been
performed, have occurred, or have been waived.
C. AFFIRMATIVE DEFENSES
1. Defendant Executor pleads the following affirmative defenses but, by pleading
these defenses, do not assume the burden 0f proof 0n any defenses on Which they would not
otherwise have that burden. In this regard, Plaintiffs’ claims against Defendant Executor, are
barred, in whole or in part, based on:
(a) Statute of Limitations. The applicable statute(s) 0f limitations;
(b) Qualified Good Faith Refusal. Defendant Executor’s qualified good faith refusal;
(c) Texas Does Not Recognize Aiding and Abetting. Plaintiffs’ aiding and abetting
claims fail because Texas law does not recognize a common-law cause of action for aiding and
abetting. See First United Pentecostal Church ofBeaumont v. Parker, 5 14 S.W.3d 214, 224 (TeX.
2017); Hampton v. Equity Trust Company, 2020 WL 4462324 at *3 (TeX. App.—Austin Jul. 23,
2020, no pet);
ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT
THERETO — Page 2
(d) N0 Dutv/No DutV Breached. Defendant Executor denies that Gene. E. Phillips was
a fiduciary of Plaintiffs such that he had fiduciary duties t0 Plaintiffs, and alternatively, that n0
duty, if any, was breached;
(e) N0 Improper Benefit. The misconduct alleged against Defendant Executor did not
result in an improper benefit t0 him or the Estate 0f Gene E. Phillips;
(f) Chapter 33. Defendant Executor pleads for and isentitled t0 a comparative fault
submission under Chapter 33 of the Texas Civil Practice & Remedies Code, which will compare
the fault of Plaintiffs With the fault 0f all other parties 0n all causes of action that are submitted;
(g) Exemplary Damages. In the unlikely event Plaintiffs are awarded punitive damages
against Defendant Executor, the Defendant Executor asserts all available statutory and
constitutional limitations 0n such an award, including but not limited t0 Chapter 41 0f the Texas
Civil Practice and Remedies Code; and
(h) Capacity. The Defendant Executor denies that he is liable to the Plaintiffs in his
individual capacity.
(i) Plaintiffs’ claims are barred, in whole 0r in part, because the alleged injuries
complained about were caused by the conduct 0f third parties over whom BWLT did not have
control;
(j)
Plaintiffs’ own conduct was the sole cause and/or a significant contributing cause
of Plaintiffs’ alleged damages;
(k) Plaintiffs’ alleged damages are barred, in whole or in part, because they are
speculative, uncertain, and remote; and
(1) Plaintiffs’ claims are barred, in whole 0r in part, by the doctrines of consent, release,
waiver, estoppel, and ratification.
ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT
THERETO — Page 3
III. REQUEST FOR DISCLOSURE
Defendant Executor requests that Plaintiffs disclose, Within 30 days 0f the service 0f this
request, the information or materials described in Tex. R. CiV. P. 194.2.
WHEREFORE, Defendant Executor, in his capacity as Executor of the Estate of Gene E.
Phillips respectfully requests that the Court dismiss Plaintiffs’ claims for want ofjurisdiction in
favor 0f the statutory probate court, and alternatively enter a take nothing judgment against
Plaintiffs, tax all costs against Plaintiffs, and grant Defendant Executor, in his capacity as Executor
of the Estate 0f Gene E. Phillips allother and further relief t0 which he may be entitled, in law 0r
in equity.
Respectfully submitted,
HOLMGREN, JOHNSON: MITCHELL
MADDEN, LLP
/s/ Mitchell Madden
Mitchell Madden (Attorney-in-charge)
State Bar No. 12789350
Email: mmadden@hjmmlegal.com
Dennis M. Holmgren
State Bar N0. 2403 6799
Email: dennis@hjmmlegal.com
tflores@hjmmlegal.com
North Central Plaza III
12801 North Central Expressway, Suite 140
Dallas, Texas 75243
Tele: 972/484-7780
Fax: 972/484-7743
ATTORNEYS FOR DEFENDANT BRADFORD
A. PHILLIPS, EXECUTOR OF THE ESTATE OF
GENE E. PHILLIPS
ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT
THERETO — Page 4
CERTIFICATE OF SERVICE
Ihereby certify that a true and correct copy of the above and foregoing was served on all
counsel of record in accordance With the Texas Rules of Civil Procedure this 26th day of October,
2020.
/s/ Mitchell Madden
Mitchell Madden
ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT
THERETO — Page 5
VERIFICATION
STATE OF TEXAS §
§
COUNTY 0F DALLAS §
BEFORE ME, the undersigned Notary Public, on this day personally appeared Bradford
A. Phillips who, after being duly sworn, stated under oath that he is the Defendant Executor in the
above-entitled cause; that he has read the above Original Answer, Plea to the Jurisdiction and
Request for Disclosure Subject Thereto and that every statement contained in paragraphs I, IIB
and II C are within his personal knowledge and are true and correct.
Byédford AT‘RBillips
Subscribed and sworn to before me thismy of October, 2020.
VMM
No'tary Public
05mm
My Com ission Expires.
////%% gm PAULAD DECKER
My # 126749385
Notary ID
‘Eo ExpiresDecember 11,2020
ORIGINAL ANSWER, PLEA To THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT
THERETO — Page 6
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Tania Flores on behalf of Mitchell Madden
Bar No. 12789350
tflores@hjmmlegal.com
Envelope ID: 47531568
Status as of 10/27/2020 7:59 AM CST
Associated Case Party: RENATA PETRYLIENE
Name BarNumber Email TimestampSubmitted Status
Ralph Ritch Roberts 24041794 roberts@rrobertslaw.com 10/26/2020 3:34:00 PM SENT
Associated Case Party: ICC SURFWOOD CORP
Name BarNumber Email TimestampSubmitted Status
Misty L.Gasiorowski mgasiorowski@wkpz.com 10/26/2020 3:34:00 PM SENT
Associated Case Party: CHEYENNE ASSET MANAGEMENT INC
Name BarNumber Email TimestampSubmitted Status
H. Grady Chandler grady@hgchandlerlaw.com 10/26/2020 3:34:00 PM SENT
Associated Case Party: LONGFELLOW INVESTORS |LLC
Name BarNumber Email TimestampSubmitted Status
CliffA.Wade cliff.wade@bakerlopez.com 10/26/2020 3:34:00 PM SENT
Garrett Roberts garrett.roberts@bakerlopez.com 10/26/2020 3:34:00 PM SENT
Scott Franklin scott.franklin@bakerlopez.com 10/26/2020 3:34:00 PM SENT
Case Contacts
Name
Mitchell Madden
Shawnte Kinney
Melissa Johnson
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Tania Flores on behalf of Mitchell Madden
Bar No. 12789350
tflores@hjmmlegal.com
Envelope ID: 47531568
Status as of 10/27/2020 7:59 AM CST
Case Contacts
Dennis Holmgren Dennis@hjmmlegal.com 10/26/2020 3:34:00 PM SENT
Veronica Zavala veronica@hgchandlerlaw.com 10/26/2020 3:34:00 PM SENT
Associated Case Party: KENNETHKFOGG
Name BarNumber Email TimestampSubmitted Status
Daniel D.Tostrud dtostrud@cobbmartinez.com 10/26/2020 3:34:00 PM SENT
Virginia E.Cox vcox@cobbmartinez.com 10/26/2020 3:34:00 PM SENT
Dolly Whitaker dwhitaker@cobbmartinez.com 10/26/2020 3:34:00 PM SENT
Karyn Elder kelder@cobbmartinez.com 10/26/2020 3:34:00 PM SENT
Preview
FILED 10/26/2020 3:34PM FELICIA PITRE DISTRICT CLERK DALLAS CO.,TEXAS MartinReyes DEPUTY Marti“ Reyes No. DC—20—12534 RENATA PETRYLIENE and BIG RIVER § IN THE DISTRICT COURT NV LLC § § Plaintiffs § § v. § 19lsT JUDICIAL DISTRICT § BRADFORD PHILLIPS AS THE EXECUTOR OF THE ESTATE OF g GENE PHILLIPS, et al., § DALLAS COUNTY, TEXAS § Defendants. § ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT THERETO Comes now Defendant Bradford A. Phillips, in his capacity as the Executor of the Estate of Gene E. Phillips (“Executor”), one of the Defendants in the above-styled and numbered cause and files this, his Plea to the Jurisdiction and Original Answer Subj ect Thereto t0 the suit filed by Plaintiffs, and would respectfully show the Court as follows: I. PLEA TO THE JURISDICTION The Defendant Executor would show that he is the duly appointed Executor of the Estate of Gene E. Phillips, and that those probate proceedings are currently pending in N0. 19-02830-1, Estate 0f Gene E. Phillips, Deceased, Probate Court No. 1 of Dallas County, and Defendant Executor would accordingly show that pursuant t0 §32.005(a) 0f the Texas Probate Code that that court has exclusive jurisdiction over the claims that Plaintiffs bring herein. Accordingly, Defendant Executor requests that the Court dismiss the claims brought against him in this suit in favor of the statutory probate court’s jurisdiction. ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT THERETO — Page 1 II. ORIGINAL ANSWER A. GENERAL DENIAL Defendant Executor denies generally each and every, all and singular, the allegations contained in Plaintiff’s Original Petition, and since they are but mere allegations 0f fact, demand strict proof thereof by a preponderance of the evidence in accordance With the laws 0f the State 0f Texas. B. DENIAL OF CONDITIONS PRECEDENT Defendant Executor denies that all conditions precedent t0 Plaintiffs’ recovery have been performed, have occurred, or have been waived. C. AFFIRMATIVE DEFENSES 1. Defendant Executor pleads the following affirmative defenses but, by pleading these defenses, do not assume the burden 0f proof 0n any defenses on Which they would not otherwise have that burden. In this regard, Plaintiffs’ claims against Defendant Executor, are barred, in whole or in part, based on: (a) Statute of Limitations. The applicable statute(s) 0f limitations; (b) Qualified Good Faith Refusal. Defendant Executor’s qualified good faith refusal; (c) Texas Does Not Recognize Aiding and Abetting. Plaintiffs’ aiding and abetting claims fail because Texas law does not recognize a common-law cause of action for aiding and abetting. See First United Pentecostal Church ofBeaumont v. Parker, 5 14 S.W.3d 214, 224 (TeX. 2017); Hampton v. Equity Trust Company, 2020 WL 4462324 at *3 (TeX. App.—Austin Jul. 23, 2020, no pet); ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT THERETO — Page 2 (d) N0 Dutv/No DutV Breached. Defendant Executor denies that Gene. E. Phillips was a fiduciary of Plaintiffs such that he had fiduciary duties t0 Plaintiffs, and alternatively, that n0 duty, if any, was breached; (e) N0 Improper Benefit. The misconduct alleged against Defendant Executor did not result in an improper benefit t0 him or the Estate 0f Gene E. Phillips; (f) Chapter 33. Defendant Executor pleads for and isentitled t0 a comparative fault submission under Chapter 33 of the Texas Civil Practice & Remedies Code, which will compare the fault of Plaintiffs With the fault 0f all other parties 0n all causes of action that are submitted; (g) Exemplary Damages. In the unlikely event Plaintiffs are awarded punitive damages against Defendant Executor, the Defendant Executor asserts all available statutory and constitutional limitations 0n such an award, including but not limited t0 Chapter 41 0f the Texas Civil Practice and Remedies Code; and (h) Capacity. The Defendant Executor denies that he is liable to the Plaintiffs in his individual capacity. (i) Plaintiffs’ claims are barred, in whole 0r in part, because the alleged injuries complained about were caused by the conduct 0f third parties over whom BWLT did not have control; (j) Plaintiffs’ own conduct was the sole cause and/or a significant contributing cause of Plaintiffs’ alleged damages; (k) Plaintiffs’ alleged damages are barred, in whole or in part, because they are speculative, uncertain, and remote; and (1) Plaintiffs’ claims are barred, in whole 0r in part, by the doctrines of consent, release, waiver, estoppel, and ratification. ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT THERETO — Page 3 III. REQUEST FOR DISCLOSURE Defendant Executor requests that Plaintiffs disclose, Within 30 days 0f the service 0f this request, the information or materials described in Tex. R. CiV. P. 194.2. WHEREFORE, Defendant Executor, in his capacity as Executor of the Estate of Gene E. Phillips respectfully requests that the Court dismiss Plaintiffs’ claims for want ofjurisdiction in favor 0f the statutory probate court, and alternatively enter a take nothing judgment against Plaintiffs, tax all costs against Plaintiffs, and grant Defendant Executor, in his capacity as Executor of the Estate 0f Gene E. Phillips allother and further relief t0 which he may be entitled, in law 0r in equity. Respectfully submitted, HOLMGREN, JOHNSON: MITCHELL MADDEN, LLP /s/ Mitchell Madden Mitchell Madden (Attorney-in-charge) State Bar No. 12789350 Email: mmadden@hjmmlegal.com Dennis M. Holmgren State Bar N0. 2403 6799 Email: dennis@hjmmlegal.com tflores@hjmmlegal.com North Central Plaza III 12801 North Central Expressway, Suite 140 Dallas, Texas 75243 Tele: 972/484-7780 Fax: 972/484-7743 ATTORNEYS FOR DEFENDANT BRADFORD A. PHILLIPS, EXECUTOR OF THE ESTATE OF GENE E. PHILLIPS ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT THERETO — Page 4 CERTIFICATE OF SERVICE Ihereby certify that a true and correct copy of the above and foregoing was served on all counsel of record in accordance With the Texas Rules of Civil Procedure this 26th day of October, 2020. /s/ Mitchell Madden Mitchell Madden ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT THERETO — Page 5 VERIFICATION STATE OF TEXAS § § COUNTY 0F DALLAS § BEFORE ME, the undersigned Notary Public, on this day personally appeared Bradford A. Phillips who, after being duly sworn, stated under oath that he is the Defendant Executor in the above-entitled cause; that he has read the above Original Answer, Plea to the Jurisdiction and Request for Disclosure Subject Thereto and that every statement contained in paragraphs I, IIB and II C are within his personal knowledge and are true and correct. Byédford AT‘RBillips Subscribed and sworn to before me thismy of October, 2020. VMM No'tary Public 05mm My Com ission Expires. ////%% gm PAULAD DECKER My # 126749385 Notary ID ‘Eo ExpiresDecember 11,2020 ORIGINAL ANSWER, PLEA To THE JURISDICTION AND REQUEST FOR DISCLOSURE SUBJECT THERETO — Page 6 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Tania Flores on behalf of Mitchell Madden Bar No. 12789350 tflores@hjmmlegal.com Envelope ID: 47531568 Status as of 10/27/2020 7:59 AM CST Associated Case Party: RENATA PETRYLIENE Name BarNumber Email TimestampSubmitted Status Ralph Ritch Roberts 24041794 roberts@rrobertslaw.com 10/26/2020 3:34:00 PM SENT Associated Case Party: ICC SURFWOOD CORP Name BarNumber Email TimestampSubmitted Status Misty L.Gasiorowski mgasiorowski@wkpz.com 10/26/2020 3:34:00 PM SENT Associated Case Party: CHEYENNE ASSET MANAGEMENT INC Name BarNumber Email TimestampSubmitted Status H. Grady Chandler grady@hgchandlerlaw.com 10/26/2020 3:34:00 PM SENT Associated Case Party: LONGFELLOW INVESTORS |LLC Name BarNumber Email TimestampSubmitted Status CliffA.Wade cliff.wade@bakerlopez.com 10/26/2020 3:34:00 PM SENT Garrett Roberts garrett.roberts@bakerlopez.com 10/26/2020 3:34:00 PM SENT Scott Franklin scott.franklin@bakerlopez.com 10/26/2020 3:34:00 PM SENT Case Contacts Name Mitchell Madden Shawnte Kinney Melissa Johnson Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Tania Flores on behalf of Mitchell Madden Bar No. 12789350 tflores@hjmmlegal.com Envelope ID: 47531568 Status as of 10/27/2020 7:59 AM CST Case Contacts Dennis Holmgren Dennis@hjmmlegal.com 10/26/2020 3:34:00 PM SENT Veronica Zavala veronica@hgchandlerlaw.com 10/26/2020 3:34:00 PM SENT Associated Case Party: KENNETHKFOGG Name BarNumber Email TimestampSubmitted Status Daniel D.Tostrud dtostrud@cobbmartinez.com 10/26/2020 3:34:00 PM SENT Virginia E.Cox vcox@cobbmartinez.com 10/26/2020 3:34:00 PM SENT Dolly Whitaker dwhitaker@cobbmartinez.com 10/26/2020 3:34:00 PM SENT Karyn Elder kelder@cobbmartinez.com 10/26/2020 3:34:00 PM SENT