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FILED
9/24/2020 5:33PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
Jeremy Jones DEPUTY
CAUSE NO. DC-20-11234
SUZANNE HILOU, § IN THE DISTRICT COURT
Plaintiff §
§
V. §
§
SAMUEL ALEXANDER TYULUMAN § lOIST JUDICIAL DISTRICT
and FIRST CONTINENTAL DIVIDE §
LIMITED PARTNERSHIP §
§
§
§
Defendants. § DALLAS COUNTY, TEXAS
DEFENDANTS MOTION TO DISMISS BASELESS CAUSE OF ACTION
Defendants, Samuel Alexander Tyuluman and First Continental Divide Limited
Partnership, move the Court to dismiss each claim of Plaintiff, Suzanne Hilou's, causes 0f action
in Plaintifl’s Original Petition 0n that ground that each of Plaintiff’ s claims have no basis in law
or fact. This motion is made pursuant to Texas Civil Procedure Rule 91a.
I.
INTRODUCTION
1. On August 13, 2020, Plaintiff, Suzanne Hilou (“Plaintiff’) sued defendants, Samuel
Alexander Tyuluman (“Defendant”) and First Continental Divide Limited Partnership (“FCDLP”),
for breach of fiduciary duty, breach 0f contract, suit for accounting, conversion, fraud, and
Violations 0f the Texas Theft Liability Act.
2. On September 3, 2020, Plaintiff served citation and Plaintiff’s Original Petition 0n
Defendant and First Continental Divide Limited Partnership.
III.
BACKGROUND
DEFENDANT’S MOTION TO DISMISS Page 1 Of 49
BASELESS CAUSE OF ACTION
3. Plaintiff ,
Susanne Hilou (hereinafter “Hi10u”) and Defendant, Samuel Alexander
Tyuluman (hereinafter “Tyuluman”) were previously married. They were divorced by order of
the 301“ District Court of Dallas County, Texas 0n August 1,2018.
4. On February 22, 2019, Plaintiff sued Defendant, inter alia, in the 402nd Judicial Court of
Wood County, Texas in Cause No. 2019-095 under the same facts Plaintiff alleges in the case at
hand and alleged against Defendant claims 0f breach of fiduciary duty, breach of contract and
“unlawful conduct.” See Exhibit “A” attached hereto and included for all purposes.
5. On May 31, 2019, Plaintiff filed her objection t0 Defendant’s Motion t0 Transfer Venue 0f
the cause t0 the 301“ Judicial District Court 0f Dallas County, Texas. See Exhibit “B” attached
hereto and included for allpurposes.
6. On June 27, 2019, Defendant’s Motion t0 Transfer Venue of Cause No. 2019-095 t0 the
3013t District Court 0f Dallas, Texas was granted. See Exhibit “C” attached hereto and included
for all purposes.
7. On June 27, 2019, Plaintiff and Defendant’s Agreed Order Granting Defendant Samuel
Alexander Tyuluman ’s
Rule 91A Motion t0 Dismiss and Withdrawal ofRequestforAttorney ’s Fees
and Costs was signed by Judge Jeff Fletcher of Wood County, Texas, dismissing the case in Cause
N0. 2019-095 with prejudice. See Exhibit “D” attached hereto and included for all purposes.
8. On March 24, 2020, some nine (9) months later, Plaintiff filed an Application and Afidavit
for Ex Part6 Emergency Temporary Restraining Order and Temporary Injunction in the 3018t
Judicial Court of Dallas, Texas under Cause No. DF-17-10898-T under the same facts Plaintiff
alleges in the case at hand. The pleading contained a request for temporary relief only. See Exhibit
“E” attached hereto and included for all purposes.
DEFENDANT’S MOTION TO DISMISS Page 2 Of 49
BASELESS CAUSE OF ACTION
9. On July 24, 2020, Plaintiff filed Plaintiff s First Amended Original Petition With the 3015t
Judicial Court of Dallas, Texas under Cause No. DF-17-10898-T under the same facts Plaintiff
alleges in the case at hand and alleged against Defendant claims ofbreach 0f fiduciary duty, breach
0f contract, suit for accounting, conversion, fraud, and Violations 0f the Texas Theft Liability Act.
See Exhibit “F” attached hereto and included for
M 10. Cause
to
N0.
this
DF-l7-10898—T
Court in Plaintiff’s
is an open
original
all
case
petition
purposes.
in
as
Dallas County which
required under Local
Plaintiff
Rules
M
of The Civil
Courts of Dallas County, Texas Rule 1.08. See Exhibit “G” attached hereto and included for all
purposes.
II.
ARGUMENT & AUTHORITIES
11. Defendant files this motion t0 dismiss plaintiffs cause of action under the authority
0f Texas Rule 0f Civil Procedure 91a. Tex. R. CiV. P. 9121.1, 9121.2. Under Rule 91a, the Court can
dismiss a cause 0f action that has n0 basis in law or fact. TeX. R. CiV. P. 91a. 1.
12. The Court should dismiss each 0f Plaintiff‘s causes 0f action because they have n0 basis in
law. Tex. R. CiV. P. 91a.1, 9121.2. A cause of action has no basis in law if the allegations, taken
as true, together With inferences reasonably drawn from them, do not entitle the plaintiff to the
relief sought. TeX. R. CiV. P. 91a.1; In re Hous. Specialty Ins. C0., 569 S.W.3d 138, 139 n.1 (TeX.
20191; Stallworth v. Ayers, 510 S.W.3d 187, 189—90 (TeX. App.—Houston [lst Dist] 2016, n0
pet. 1;see In re Essex Ins. C0., 450 S.W.3d 524, 527—28 (TeX. 2014).
13. Plaintiff‘s suit for breach 0f fiduciary duty, breach 0f contract, suit for accounting,
conversion, fraud, and Violations of the Texas Theft Liability Act (“causes of action”) have n0
basis in law because Plaintiffs claims in the case hand are based on the same facts in Plaintiffs
suit in Wood County, Texas, which dismissed that case, Cause No. 2019-095, with prejudice.
DEFENDANT’S MOTION TO DISMISS Page 3 Of 49
BASELESS CAUSE OF ACTION
14. Plaintiff’s claim of breach of fiduciary duty has no basis in law because Plaintiff fails t0
plead the existence of a specific fiduciary duty, the nature of that relationship, What specific duties
are owed in that relationship, and What specific duties were breached and how.
15. Plaintiff’s claim of breach of contract has no basis in law because Plaintiff fails to plead
Plaintiff fully performed under the contract, that Defendant failed to perform any specific
provisions 0f the contract, that there was a specific time of performance that Defendant failed to
meet, and that any alleged breaches were material.
16. Plaintiff’ s claim of suit for accounting has n0 basis in law because Plaintiff fails t0 plead
that the facts and accounts in this case are so complex that it cannot obtain the necessary
information through normal discovery procedures.
17. Plaintiff’ s claim 0f conversion has no basis in law because Plaintiff fails to plead that the
property that is the subject of this suit,disbursements, exist. This claim also has no basis in law
because Plaintiff fails to plead that Plaintiff had a right t0 immediate possession 0f any alleged
disbursements.
18. Plaintiff s claim of fraud has no basis in law because Plaintiff fails to plead that any alleged
misrepresentations made by Defendant were material. Plaintiff’s claim has n0 basis in law
because Plaintiff fails t0 plead that she acted on any alleged misrepresentation. Plaintiff s claim
has n0 basis in law because Plaintiff alleges that Defendant made misrepresentations about future
events, which are generally not actionable misrepresentations. Plaintiff’s claim has no basis in
law because Plaintiff fails t0 plead that any alleged misrepresentations made by Defendant were
knowingly or recklessly made.
19. Plaintiff’s claim of Texas Theft Liability Act has n0 basis in law because Plaintiff fails to
plead that she had a greater right t0 possession then the Defendant 0f the alleged disbursements.
DEFENDANT’S MOTION TO DISMISS Page 4 Of 49
BASELESS CAUSE OF ACTION
Plaintiff’s claim of Texas Theft Liability Act has no basis in law because Plaintiff fails t0 plead
Defendant intended t0 deprive the Plaintiff 0f the alleged disbursements and did so at the time the
Defendant allegedly appropriated the alleged disbursements.
20. Consequently, even if the factual allegations in each of the causes of action in Plaintiff’s
Original Petition are taken as true, together with inferences reasonably drawn from them, the
purported causes of action have n0 legal basis and d0 not entitle the Plaintiff to the relief sought.
21. The Court should also dismiss each 0f Plaintiff‘s causes of action because they have no
basis in fact. Tex. R. Civ. P. 9121.1, 91a.2. A cause of action has no basis in fact if n0 reasonable
person could believe the facts pleaded. Tex. R. CiV. P. 9 1 a. 1. Plaintiffs suit forbreach of fiduciary
duty, breach 0f contract, suit for accounting, conversion, fraud, and Violations 0f the Texas Theft
Liability Act have n0 basis in fact because of the following, but not limited to, reasons:
a. Plaintiff caused FCDLP to incur legal expenses. Under the Amended and Restated
Agreement 0f Limited Partnership for First Continental Divide Limited Partnership
(the "Agreement"), paragraph 11.16 allows the prevailing party in any dispute
between a partner and the partnership shall be entitled t0 recover attorney’s fees
and costs. FCDLP prevailed in each dispute with Plaintiff.
b. A partners’ vote was then taken t0 dissolve the partnership or declare bankruptcy.
Neither vote passed.
c. Under the Amended and Restated Agreement 0f Limited Partnership for First
Continental Divide Limited Partnership (the "Agreement"), Defendant as general
partner requested all partners t0 either make capital contributions or have their share
of ownership in FCDLP reduced to address FCDLP’S debt.
DEFENDANT’S MOTION TO DISMISS Page 5 Of 49
BASELESS CAUSE OF ACTION
d. Defendant did not take control 0f FCDLP’S property sales proceeds. The proceeds
were Wired directly into the FCDLP account at Frost Bank from the titlecompany
on the day the sales transaction closed.
e. Plaintiff was provided not only the FCDLP QuickBooks records, she also received
Defendant’s personal TDA and Partnership TDA account statements, and the Frost
Bank statements.
22. The Plaintiff’s allegations provide n0 basis in fact for this causes of action because no
reasonable person could believe that the Defendant engaged in any misconduct When the Plaintiff
caused FCDLP t0 repeatedly and unnecessarily incur legal expenses and failed to exercise her
option t0 make capital contributions along with the other partners to cover those expenses.
III.
ATTORNEY FEES & COSTS
23. It was necessary for Defendant to secure the services of Marilea W. Lewis, George H.
Shake, and the law firm of Duffee + Eitzen LLP, licensed attorneys, to preserve and protect
Defendant’s rights. The prevailing party 0n a motion t0 dismiss can be awarded reasonable and
necessary attorney fees and all costs incurred as a result ofplaintiff‘s cause of action. See TeX. CiV.
Prac. & Rem. Code S 30.021; Tex. R. CiV. P. 91a.7. Therefore, if the Court grants Defendant’s
motion to dismiss, either in whole or in part, Defendant ask the Court to award Defendant’s
reasonable and necessary attorney’s fees, expenses and all costs through trial and appeal. See Tex.
CiV. Prac. & Rem. Code S 30.021; Tex. R. CiV. P. 91a.7. A judgment should be rendered in favor
of this attorney and against Plaintiff and be ordered paid directly to Defendant’s attorney, Who
may enforce the judgment in the attorney’s own name. Defendant requests postjudgment interest
as allowed by law.
DEFENDANT’S MOTION TO DISMISS Page 6 Of 49
BASELESS CAUSE OF ACTION
IV.
CONCLUSION
24. Plaintiff has sued Defendant on the same facts in three different suits in three different
courts. Plaintiff agreed t0 dismiss her claims With prejudice in an Agreed Order Granting
Defendant Samuel Alexander Tyuluman’s Rule 91A Motion t0 Dismiss and Withdrawal of
Request for Attorney’s Fees and Costs in Wood County, Texas, dismissing the case in Cause No.
2019-095 With prejudice. Since then, Plaintiff has filed not one, but two lawsuits against the
Defendant based 0n the same facts. Additionally, Plaintiff failed to meet the prima facie pleading
requirements for each of her causes 0f action. Finally, the actual facts 0fthis case are that Plaintiff
sued a partnership, caused the partnership t0 incur substantial legal costs, lost her suits and failed
to honor the partnership agreement t0 address the partnership debt caused by her litigiousness.
Plaintiff” s causes of action have no basis in law or fact and should be dismissed.
PRAYER
For these reasons, Defendant prays the Court t0 set this motion for hearing and, after the
hearing, grant this motion and sign an order dismissing the challenged cause 0f action and
awarding Defendant reasonable and necessary attorney fees, expenses and all costs as requested
above.
Defendant prays for general relief.
Respectfully submitted,
DUFFEE + EITZEN LLP
43 11 Oak Lawn Avenue
Suite 600
Dallas, TX 752 19
Tel: (214) 416-9010
Fax: (214) 416-9005
DEFENDANT’S MOTION TO DISMISS Page 7 Of 49
BASELESS CAUSE OF ACTION
By: /s/Marilea W. Lewis
Marilea W. Lewis
State Bar No. 177306850
marilea@d—elaw.com
George H. Shake
State Bar No. 24077524
georgede-elawcom
Attorneys for Samuel Alexander Tyuluman
Certificate 0f Service Prior t0 Filing
I certify that a true copy of the foregoing was served in accordance with Rule 21a 0f the
Texas Rules of Civil Procedure on September 14, 2020:
CFredericksen@bernsteinlaw.com
C. Christian Fredericksen
Fredericksen Law, P.L.L.C.
3710 Rawlins Street
Suite 1300
Dallas, Texas 752 1 9
/s/Marilea W. Lewis
Marilea W. Lewis
Certificate 0f Service
I certify that a true copy of the foregoing was served in accordance With Rule 213 of the
Texas Rules of Civil Procedure 0n September 24, 2020:
CFredericksen@bernstein1aw.com
C. Christian Fredericksen
Fredeficksen Law, P.L.L.C.
3710 Rawlins Street
Suite 1300
Dallas, Texas 752 1 9
/sflVIarilea W. Lewis
Marilea W. Lewis
DEFENDANT'S MOTION TO DISMISS Page 8 0f 49
BASELESS CAUSE OF ACTION
Certificate of Conference
Counsel for movant has personally attempted t0 contact the counsel for respondent, C.
Christian Fredericksen, to resolve the matters presented as follows:
1) On September 14, 2020, a copy of the Motion was forwarded t0 Mr. Fredricksen by
email With a request that we confer.
2) On September 17, 2020, Mr. Fredricksen responded that there had been issues with
power in his building but he would be available to confer 0n September 21, 2020.
3) By responsive email, I confirmed availability for September 21, 2020.
4) On September 21, 2020, I call Mr. Fredricksen; however, we did not connect. I left
voicemail.
5) As of the filing of this Motion of September 24, 2020, I have been unable to speak With
opposing counsel.
Counsel for the movant has caused to be delivered to counsel for respondent and counsel
for respondent has received a copy of the proposed motion. At least one attempt t0 contact the
counsel for respondent followed the receipt by counsel for respondent of the proposed motion.
Counsel for respondent has failed t0 respond or attempt t0 resolve the matters presented.
Certified t0 this 24th day 0f September, 2020.
/s/Marilea W. Lewis
Marilea W. Lewis
DEFENDANT’S MOTION TO DISMISS Page 9 Of 49
BASELESS CAUSE OF ACTION
Filed:2/22/
Filed:2!22/2019 4:43 PM
2019 4:43
Donna Huston, District Clerk
Huston, District Clerk
Page
PageII of6
ore DF-17-10
DF-1 898
7-1 0898 County, Texas
Wood County,
By:Jenniferr Mosher
Reviewed By:Jennife
FILED
2019-095 DALLAS COUNTY
CAUSE
CAUSE N0~ NO. _ _ _ _ _ _ _ _ _ __
8/29/201
8/29/2019 9 4:50
4:50 PM
FELICIA PITRE
SUSANN
SUSANNE E HILOU §
§ IN THE DISTRIC
DISTRICT T COURT DFSE-Il'éICCIAr PCIEERREK
DISTRIC T CLERK
Plaintiff,
Plaintiff, §§
§§
V.
V. §
§
E
ALEXAN DER TYULUM
SAMUEL ALEXANDER TYULUMAN, AN, §
§ 402ND JUDICIA
402“” JUDICIAL L DISTRIC
DISTRICT T
‘
CURLY T'S LLC, FIRST
T'S §§
CONTINENTAL
CONTIN ENTAL DIVIDE LIMITED §
§
PARTNE RSHIP, MICHAEL
PARTNERSHIP, MICHAE L LEE §
§
TYULUMAN
TYULUM AN AND SAMUEL A. A. §§
TYULUMAN
TYULUM AN IIll §
§
Defendan ts.
Defendants. §
§ OF WOOD COUNTYCOUNTY,, TEXAS
PLAINTI
PLAINTIFF'SFF'S ORIGINA
ORIGINAL L PETJTIO
PETITION N
HONORA BLE JUDGE OF SAID COURT:
TO THE HONORABLE
NOW COMES Susanne
Susanne Hilou,
Hilou, hereinafierr
hereinafte called
called Plaintiff,
Plaintiff,complaini
complainingng of and
of and about
about
Samuel
Samuel Alexander
Alexander Tyuluman,,
Tyuluman Curly
Curly T's
T's LLC,
LLC, First
First Continentall
Continenta Divide
Divide Limited
Limited Partnership,
Partnership,
Michael Tyuluman and
Lee Tyuluman
Michael Lee and Samuel
Samuel A. Tyuluman JI,
A. Tyuluman II, hereinafte called Defendant
hereinafterr calledDefendants, s, and for cause
and for cause
of action would
of action the Court
unto the
show unto
would show the following:
Coun the following:
DISCOVERY
DISCOVE CONTROL
RY CONTRO L PLAN LEVEL
1.
l. Plaintiff intends that discovery be conducted
Plaintiff intends that discovery be conducted under Discovery Level
under Discovery 2.
Level 2.
PARTIES AND SERVICE
2.
2. Plaintiff, Susanne
Plaintiff: Hilou, is
Susanne Hilou, an Individual
is anIndividual whose address is
whose address 69 10
is 69 10 Northwood Road,
N01thwood Road,
Dallas, Texas 75225.
Dallas, Texas 75225.
3.
3. The
The last
last three numbers
three numbers of Susanne
of Hilou's driver's
Susanne Hilou's driver's license number are
license number are *9
*913. The
13. The
last numbers of
three numbers
last three of Susanne
Susanne Hilou‘s social security
Hilou's social security number are *959.
number are *959.
EXHIBIT
EXHIBIT
l'LAINTIFF'S
ORIGINALL l'ETITION
l’LAIN'l‘lI’F‘S ORIGINA
I’E'I‘I'I'ION
DEFENDANT'S MOTION TO DISMISSPage 10 of 49
% A
A
BASELESS CAUSE OF ACTION
Page 22 of6
Page ol'6
4.
4. Defendants
Defendants are:
arc:
a.
a. Samuel Alexan Tyuluman, an
der Tyuluman,
Alexander an Individu
Individualal who is aa resident
is Texas,
of Texas,
resident of
with process
served with at his
process at the following
at the
office at
his office Carrell Clinic,
address: Carrel]
fo llowing address: Clinic, 9301 N.
930 1 N.
be scrvcd
may bc
may
Expressway, 475,
Suite 475, Texas
Dallas, Texas 75231 (Dallas
7523 1 (Dallas County) .
County). Service
Service of said
of said
Central
Central Expressway, Suite Dallas,
Defenda nt as above can
described above
as described effected by
be effected
can be delivery.
persona l delivery.
by personal A seconda
secondaryry address
address
Defendant
for service of Samuel Alexand
of Samuel Alexander Tyuluman is
er Tyuluman is his at 4650
residence at
his rcsidcncc Winnsboro,
2088, Winnsboro,
4650 FM 2088,
for service
TX 75494-7 666 (Wood
75494-7666 County).
(Wood County).
b. Samuel A.
Samuel Tyuluman lI,
A. Tyuluman JI, an Individual who is
an Individual a resident
is a of Texas,
resident of be
may be
Texas, may
b.
served process at
with process residence at
his residence
at his the following
at the address: 3109
following address: 3109 Abbey Garland,
Court, Garland,
Abbey Court,
served with
75044 (Dallas County). Service of said
of Defendant
Defendant as
as describe
describedd above
above can
can be
be
Texas
Texas 75044 (Dallas County). Service said
effected
effected by personal
by personal delivery.
delivery.
c. Michael Lee
Michael Tyuluman, an
Lee Tyuluman, Individu al who
an Individual is aa resident
is of Texas,
resi dent of be
may be
Texas, may
c.
process at
with process his residence at the fo llowing address:
his residence at the following address: 1209 Rainbow Circle,
1209 Rainbow Plano,
Circle, Plano,
served with
sewed at
75075.
Texas 75075. Service of
Service Defendant as
said Defendant
of said as described above can
described above be effected
can be personal
by personal
effected by
Texas
delivery.
delivery.
cl.
d. Defendant Curly T's
Defendant Curly T's LLC, aa Limited Company based
Liability Company
Limited Liability Texas,
in Texas,
based in
be served
may be served with process by
with process by serving
serving the managerr of
the manage said company,
of said Alexander
Preview
FILED 9/24/2020 5:33PM FELICIA PITRE DISTRICT CLERK DALLAS CO.,TEXAS Jeremy Jones DEPUTY CAUSE NO. DC-20-11234 SUZANNE HILOU, § IN THE DISTRICT COURT Plaintiff § § V. § § SAMUEL ALEXANDER TYULUMAN § lOIST JUDICIAL DISTRICT and FIRST CONTINENTAL DIVIDE § LIMITED PARTNERSHIP § § § § Defendants. § DALLAS COUNTY, TEXAS DEFENDANTS MOTION TO DISMISS BASELESS CAUSE OF ACTION Defendants, Samuel Alexander Tyuluman and First Continental Divide Limited Partnership, move the Court to dismiss each claim of Plaintiff, Suzanne Hilou's, causes 0f action in Plaintifl’s Original Petition 0n that ground that each of Plaintiff’ s claims have no basis in law or fact. This motion is made pursuant to Texas Civil Procedure Rule 91a. I. INTRODUCTION 1. On August 13, 2020, Plaintiff, Suzanne Hilou (“Plaintiff’) sued defendants, Samuel Alexander Tyuluman (“Defendant”) and First Continental Divide Limited Partnership (“FCDLP”), for breach of fiduciary duty, breach 0f contract, suit for accounting, conversion, fraud, and Violations 0f the Texas Theft Liability Act. 2. On September 3, 2020, Plaintiff served citation and Plaintiff’s Original Petition 0n Defendant and First Continental Divide Limited Partnership. III. BACKGROUND DEFENDANT’S MOTION TO DISMISS Page 1 Of 49 BASELESS CAUSE OF ACTION 3. Plaintiff , Susanne Hilou (hereinafter “Hi10u”) and Defendant, Samuel Alexander Tyuluman (hereinafter “Tyuluman”) were previously married. They were divorced by order of the 301“ District Court of Dallas County, Texas 0n August 1,2018. 4. On February 22, 2019, Plaintiff sued Defendant, inter alia, in the 402nd Judicial Court of Wood County, Texas in Cause No. 2019-095 under the same facts Plaintiff alleges in the case at hand and alleged against Defendant claims 0f breach of fiduciary duty, breach of contract and “unlawful conduct.” See Exhibit “A” attached hereto and included for all purposes. 5. On May 31, 2019, Plaintiff filed her objection t0 Defendant’s Motion t0 Transfer Venue 0f the cause t0 the 301“ Judicial District Court 0f Dallas County, Texas. See Exhibit “B” attached hereto and included for allpurposes. 6. On June 27, 2019, Defendant’s Motion t0 Transfer Venue of Cause No. 2019-095 t0 the 3013t District Court 0f Dallas, Texas was granted. See Exhibit “C” attached hereto and included for all purposes. 7. On June 27, 2019, Plaintiff and Defendant’s Agreed Order Granting Defendant Samuel Alexander Tyuluman ’s Rule 91A Motion t0 Dismiss and Withdrawal ofRequestforAttorney ’s Fees and Costs was signed by Judge Jeff Fletcher of Wood County, Texas, dismissing the case in Cause N0. 2019-095 with prejudice. See Exhibit “D” attached hereto and included for all purposes. 8. On March 24, 2020, some nine (9) months later, Plaintiff filed an Application and Afidavit for Ex Part6 Emergency Temporary Restraining Order and Temporary Injunction in the 3018t Judicial Court of Dallas, Texas under Cause No. DF-17-10898-T under the same facts Plaintiff alleges in the case at hand. The pleading contained a request for temporary relief only. See Exhibit “E” attached hereto and included for all purposes. DEFENDANT’S MOTION TO DISMISS Page 2 Of 49 BASELESS CAUSE OF ACTION 9. On July 24, 2020, Plaintiff filed Plaintiff s First Amended Original Petition With the 3015t Judicial Court of Dallas, Texas under Cause No. DF-17-10898-T under the same facts Plaintiff alleges in the case at hand and alleged against Defendant claims ofbreach 0f fiduciary duty, breach 0f contract, suit for accounting, conversion, fraud, and Violations 0f the Texas Theft Liability Act. See Exhibit “F” attached hereto and included for M 10. Cause to N0. this DF-l7-10898—T Court in Plaintiff’s is an open original all case petition purposes. in as Dallas County which required under Local Plaintiff Rules M of The Civil Courts of Dallas County, Texas Rule 1.08. See Exhibit “G” attached hereto and included for all purposes. II. ARGUMENT & AUTHORITIES 11. Defendant files this motion t0 dismiss plaintiffs cause of action under the authority 0f Texas Rule 0f Civil Procedure 91a. Tex. R. CiV. P. 9121.1, 9121.2. Under Rule 91a, the Court can dismiss a cause 0f action that has n0 basis in law or fact. TeX. R. CiV. P. 91a. 1. 12. The Court should dismiss each 0f Plaintiff‘s causes 0f action because they have n0 basis in law. Tex. R. CiV. P. 91a.1, 9121.2. A cause of action has no basis in law if the allegations, taken as true, together With inferences reasonably drawn from them, do not entitle the plaintiff to the relief sought. TeX. R. CiV. P. 91a.1; In re Hous. Specialty Ins. C0., 569 S.W.3d 138, 139 n.1 (TeX. 20191; Stallworth v. Ayers, 510 S.W.3d 187, 189—90 (TeX. App.—Houston [lst Dist] 2016, n0 pet. 1;see In re Essex Ins. C0., 450 S.W.3d 524, 527—28 (TeX. 2014). 13. Plaintiff‘s suit for breach 0f fiduciary duty, breach 0f contract, suit for accounting, conversion, fraud, and Violations of the Texas Theft Liability Act (“causes of action”) have n0 basis in law because Plaintiffs claims in the case hand are based on the same facts in Plaintiffs suit in Wood County, Texas, which dismissed that case, Cause No. 2019-095, with prejudice. DEFENDANT’S MOTION TO DISMISS Page 3 Of 49 BASELESS CAUSE OF ACTION 14. Plaintiff’s claim of breach of fiduciary duty has no basis in law because Plaintiff fails t0 plead the existence of a specific fiduciary duty, the nature of that relationship, What specific duties are owed in that relationship, and What specific duties were breached and how. 15. Plaintiff’s claim of breach of contract has no basis in law because Plaintiff fails to plead Plaintiff fully performed under the contract, that Defendant failed to perform any specific provisions 0f the contract, that there was a specific time of performance that Defendant failed to meet, and that any alleged breaches were material. 16. Plaintiff’ s claim of suit for accounting has n0 basis in law because Plaintiff fails t0 plead that the facts and accounts in this case are so complex that it cannot obtain the necessary information through normal discovery procedures. 17. Plaintiff’ s claim 0f conversion has no basis in law because Plaintiff fails to plead that the property that is the subject of this suit,disbursements, exist. This claim also has no basis in law because Plaintiff fails to plead that Plaintiff had a right t0 immediate possession 0f any alleged disbursements. 18. Plaintiff s claim of fraud has no basis in law because Plaintiff fails to plead that any alleged misrepresentations made by Defendant were material. Plaintiff’s claim has n0 basis in law because Plaintiff fails t0 plead that she acted on any alleged misrepresentation. Plaintiff s claim has n0 basis in law because Plaintiff alleges that Defendant made misrepresentations about future events, which are generally not actionable misrepresentations. Plaintiff’s claim has no basis in law because Plaintiff fails t0 plead that any alleged misrepresentations made by Defendant were knowingly or recklessly made. 19. Plaintiff’s claim of Texas Theft Liability Act has n0 basis in law because Plaintiff fails to plead that she had a greater right t0 possession then the Defendant 0f the alleged disbursements. DEFENDANT’S MOTION TO DISMISS Page 4 Of 49 BASELESS CAUSE OF ACTION Plaintiff’s claim of Texas Theft Liability Act has no basis in law because Plaintiff fails t0 plead Defendant intended t0 deprive the Plaintiff 0f the alleged disbursements and did so at the time the Defendant allegedly appropriated the alleged disbursements. 20. Consequently, even if the factual allegations in each of the causes of action in Plaintiff’s Original Petition are taken as true, together with inferences reasonably drawn from them, the purported causes of action have n0 legal basis and d0 not entitle the Plaintiff to the relief sought. 21. The Court should also dismiss each 0f Plaintiff‘s causes of action because they have no basis in fact. Tex. R. Civ. P. 9121.1, 91a.2. A cause of action has no basis in fact if n0 reasonable person could believe the facts pleaded. Tex. R. CiV. P. 9 1 a. 1. Plaintiffs suit forbreach of fiduciary duty, breach 0f contract, suit for accounting, conversion, fraud, and Violations 0f the Texas Theft Liability Act have n0 basis in fact because of the following, but not limited to, reasons: a. Plaintiff caused FCDLP to incur legal expenses. Under the Amended and Restated Agreement 0f Limited Partnership for First Continental Divide Limited Partnership (the "Agreement"), paragraph 11.16 allows the prevailing party in any dispute between a partner and the partnership shall be entitled t0 recover attorney’s fees and costs. FCDLP prevailed in each dispute with Plaintiff. b. A partners’ vote was then taken t0 dissolve the partnership or declare bankruptcy. Neither vote passed. c. Under the Amended and Restated Agreement 0f Limited Partnership for First Continental Divide Limited Partnership (the "Agreement"), Defendant as general partner requested all partners t0 either make capital contributions or have their share of ownership in FCDLP reduced to address FCDLP’S debt. DEFENDANT’S MOTION TO DISMISS Page 5 Of 49 BASELESS CAUSE OF ACTION d. Defendant did not take control 0f FCDLP’S property sales proceeds. The proceeds were Wired directly into the FCDLP account at Frost Bank from the titlecompany on the day the sales transaction closed. e. Plaintiff was provided not only the FCDLP QuickBooks records, she also received Defendant’s personal TDA and Partnership TDA account statements, and the Frost Bank statements. 22. The Plaintiff’s allegations provide n0 basis in fact for this causes of action because no reasonable person could believe that the Defendant engaged in any misconduct When the Plaintiff caused FCDLP t0 repeatedly and unnecessarily incur legal expenses and failed to exercise her option t0 make capital contributions along with the other partners to cover those expenses. III. ATTORNEY FEES & COSTS 23. It was necessary for Defendant to secure the services of Marilea W. Lewis, George H. Shake, and the law firm of Duffee + Eitzen LLP, licensed attorneys, to preserve and protect Defendant’s rights. The prevailing party 0n a motion t0 dismiss can be awarded reasonable and necessary attorney fees and all costs incurred as a result ofplaintiff‘s cause of action. See TeX. CiV. Prac. & Rem. Code S 30.021; Tex. R. CiV. P. 91a.7. Therefore, if the Court grants Defendant’s motion to dismiss, either in whole or in part, Defendant ask the Court to award Defendant’s reasonable and necessary attorney’s fees, expenses and all costs through trial and appeal. See Tex. CiV. Prac. & Rem. Code S 30.021; Tex. R. CiV. P. 91a.7. A judgment should be rendered in favor of this attorney and against Plaintiff and be ordered paid directly to Defendant’s attorney, Who may enforce the judgment in the attorney’s own name. Defendant requests postjudgment interest as allowed by law. DEFENDANT’S MOTION TO DISMISS Page 6 Of 49 BASELESS CAUSE OF ACTION IV. CONCLUSION 24. Plaintiff has sued Defendant on the same facts in three different suits in three different courts. Plaintiff agreed t0 dismiss her claims With prejudice in an Agreed Order Granting Defendant Samuel Alexander Tyuluman’s Rule 91A Motion t0 Dismiss and Withdrawal of Request for Attorney’s Fees and Costs in Wood County, Texas, dismissing the case in Cause No. 2019-095 With prejudice. Since then, Plaintiff has filed not one, but two lawsuits against the Defendant based 0n the same facts. Additionally, Plaintiff failed to meet the prima facie pleading requirements for each of her causes 0f action. Finally, the actual facts 0fthis case are that Plaintiff sued a partnership, caused the partnership t0 incur substantial legal costs, lost her suits and failed to honor the partnership agreement t0 address the partnership debt caused by her litigiousness. Plaintiff” s causes of action have no basis in law or fact and should be dismissed. PRAYER For these reasons, Defendant prays the Court t0 set this motion for hearing and, after the hearing, grant this motion and sign an order dismissing the challenged cause 0f action and awarding Defendant reasonable and necessary attorney fees, expenses and all costs as requested above. Defendant prays for general relief. Respectfully submitted, DUFFEE + EITZEN LLP 43 11 Oak Lawn Avenue Suite 600 Dallas, TX 752 19 Tel: (214) 416-9010 Fax: (214) 416-9005 DEFENDANT’S MOTION TO DISMISS Page 7 Of 49 BASELESS CAUSE OF ACTION By: /s/Marilea W. Lewis Marilea W. Lewis State Bar No. 177306850 marilea@d—elaw.com George H. Shake State Bar No. 24077524 georgede-elawcom Attorneys for Samuel Alexander Tyuluman Certificate 0f Service Prior t0 Filing I certify that a true copy of the foregoing was served in accordance with Rule 21a 0f the Texas Rules of Civil Procedure on September 14, 2020: CFredericksen@bernsteinlaw.com C. Christian Fredericksen Fredericksen Law, P.L.L.C. 3710 Rawlins Street Suite 1300 Dallas, Texas 752 1 9 /s/Marilea W. Lewis Marilea W. Lewis Certificate 0f Service I certify that a true copy of the foregoing was served in accordance With Rule 213 of the Texas Rules of Civil Procedure 0n September 24, 2020: CFredericksen@bernstein1aw.com C. Christian Fredericksen Fredeficksen Law, P.L.L.C. 3710 Rawlins Street Suite 1300 Dallas, Texas 752 1 9 /sflVIarilea W. Lewis Marilea W. Lewis DEFENDANT'S MOTION TO DISMISS Page 8 0f 49 BASELESS CAUSE OF ACTION Certificate of Conference Counsel for movant has personally attempted t0 contact the counsel for respondent, C. Christian Fredericksen, to resolve the matters presented as follows: 1) On September 14, 2020, a copy of the Motion was forwarded t0 Mr. Fredricksen by email With a request that we confer. 2) On September 17, 2020, Mr. Fredricksen responded that there had been issues with power in his building but he would be available to confer 0n September 21, 2020. 3) By responsive email, I confirmed availability for September 21, 2020. 4) On September 21, 2020, I call Mr. Fredricksen; however, we did not connect. I left voicemail. 5) As of the filing of this Motion of September 24, 2020, I have been unable to speak With opposing counsel. Counsel for the movant has caused to be delivered to counsel for respondent and counsel for respondent has received a copy of the proposed motion. At least one attempt t0 contact the counsel for respondent followed the receipt by counsel for respondent of the proposed motion. Counsel for respondent has failed t0 respond or attempt t0 resolve the matters presented. Certified t0 this 24th day 0f September, 2020. /s/Marilea W. Lewis Marilea W. Lewis DEFENDANT’S MOTION TO DISMISS Page 9 Of 49 BASELESS CAUSE OF ACTION Filed:2/22/ Filed:2!22/2019 4:43 PM 2019 4:43 Donna Huston, District Clerk Huston, District Clerk Page PageII of6 ore DF-17-10 DF-1 898 7-1 0898 County, Texas Wood County, By:Jenniferr Mosher Reviewed By:Jennife FILED 2019-095 DALLAS COUNTY CAUSE CAUSE N0~ NO. _ _ _ _ _ _ _ _ _ __ 8/29/201 8/29/2019 9 4:50 4:50 PM FELICIA PITRE SUSANN SUSANNE E HILOU § § IN THE DISTRIC DISTRICT T COURT DFSE-Il'éICCIAr PCIEERREK DISTRIC T CLERK Plaintiff, Plaintiff, §§ §§ V. V. § § E ALEXAN DER TYULUM SAMUEL ALEXANDER TYULUMAN, AN, § § 402ND JUDICIA 402“” JUDICIAL L DISTRIC DISTRICT T ‘ CURLY T'S LLC, FIRST T'S §§ CONTINENTAL CONTIN ENTAL DIVIDE LIMITED § § PARTNE RSHIP, MICHAEL PARTNERSHIP, MICHAE L LEE § § TYULUMAN TYULUM AN AND SAMUEL A. A. §§ TYULUMAN TYULUM AN IIll § § Defendan ts. Defendants. § § OF WOOD COUNTYCOUNTY,, TEXAS PLAINTI PLAINTIFF'SFF'S ORIGINA ORIGINAL L PETJTIO PETITION N HONORA BLE JUDGE OF SAID COURT: TO THE HONORABLE NOW COMES Susanne Susanne Hilou, Hilou, hereinafierr hereinafte called called Plaintiff, Plaintiff,complaini complainingng of and of and about about Samuel Samuel Alexander Alexander Tyuluman,, Tyuluman Curly Curly T's T's LLC, LLC, First First Continentall Continenta Divide Divide Limited Limited Partnership, Partnership, Michael Tyuluman and Lee Tyuluman Michael Lee and Samuel Samuel A. Tyuluman JI, A. Tyuluman II, hereinafte called Defendant hereinafterr calledDefendants, s, and for cause and for cause of action would of action the Court unto the show unto would show the following: Coun the following: DISCOVERY DISCOVE CONTROL RY CONTRO L PLAN LEVEL 1. l. Plaintiff intends that discovery be conducted Plaintiff intends that discovery be conducted under Discovery Level under Discovery 2. Level 2. PARTIES AND SERVICE 2. 2. Plaintiff, Susanne Plaintiff: Hilou, is Susanne Hilou, an Individual is anIndividual whose address is whose address 69 10 is 69 10 Northwood Road, N01thwood Road, Dallas, Texas 75225. Dallas, Texas 75225. 3. 3. The The last last three numbers three numbers of Susanne of Hilou's driver's Susanne Hilou's driver's license number are license number are *9 *913. The 13. The last numbers of three numbers last three of Susanne Susanne Hilou‘s social security Hilou's social security number are *959. number are *959. EXHIBIT EXHIBIT l'LAINTIFF'S ORIGINALL l'ETITION l’LAIN'l‘lI’F‘S ORIGINA I’E'I‘I'I'ION DEFENDANT'S MOTION TO DISMISSPage 10 of 49 % A A BASELESS CAUSE OF ACTION Page 22 of6 Page ol'6 4. 4. Defendants Defendants are: arc: a. a. Samuel Alexan Tyuluman, an der Tyuluman, Alexander an Individu Individualal who is aa resident is Texas, of Texas, resident of with process served with at his process at the following at the office at his office Carrell Clinic, address: Carrel] fo llowing address: Clinic, 9301 N. 930 1 N. be scrvcd may bc may Expressway, 475, Suite 475, Texas Dallas, Texas 75231 (Dallas 7523 1 (Dallas County) . County). Service Service of said of said Central Central Expressway, Suite Dallas, Defenda nt as above can described above as described effected by be effected can be delivery. persona l delivery. by personal A seconda secondaryry address address Defendant for service of Samuel Alexand of Samuel Alexander Tyuluman is er Tyuluman is his at 4650 residence at his rcsidcncc Winnsboro, 2088, Winnsboro, 4650 FM 2088, for service TX 75494-7 666 (Wood 75494-7666 County). (Wood County). b. Samuel A. Samuel Tyuluman lI, A. Tyuluman JI, an Individual who is an Individual a resident is a of Texas, resident of be may be Texas, may b. served process at with process residence at his residence at his the following at the address: 3109 following address: 3109 Abbey Garland, Court, Garland, Abbey Court, served with 75044 (Dallas County). Service of said of Defendant Defendant as as describe describedd above above can can be be Texas Texas 75044 (Dallas County). Service said effected effected by personal by personal delivery. delivery. c. Michael Lee Michael Tyuluman, an Lee Tyuluman, Individu al who an Individual is aa resident is of Texas, resi dent of be may be Texas, may c. process at with process his residence at the fo llowing address: his residence at the following address: 1209 Rainbow Circle, 1209 Rainbow Plano, Circle, Plano, served with sewed at 75075. Texas 75075. Service of Service Defendant as said Defendant of said as described above can described above be effected can be personal by personal effected by Texas delivery. delivery. cl. d. Defendant Curly T's Defendant Curly T's LLC, aa Limited Company based Liability Company Limited Liability Texas, in Texas, based in be served may be served with process by with process by serving serving the managerr of the manage said company, of said Alexander