Preview
Received and E-Filed for Record
1/11/2021 5:40 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Jeff Fiore
CAUSE NO. 18-09-11899
MARK KLAUS, § IN THE DISTRICT COURT OF
PLAINTIFF §
§
§
V. §
§
ELARA SIGNATURE HOMES, INC. § MONTGOMERY COUNTY, TEXAS
ELARA HOMES, INC., §
§
ELARA CONSTRUCTION, INC. §
and AUBREY M. HALL §
§
DEFENDANTS 457th DISTRICT COURT
PLAINTIFF’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Mark Klaus asks the Court to grant summary judgment on Defendants’ affirmative
defenses of “good faith and reasonably equivalent value” and comparative fault because there is no
evidence to support either defense.
Standard of Review
Affirmative defenses are subject to no-evidence summary judgment motions because they
are “defense[s] on which an adverse party would have the burden of proof at trial.” TEX. R. CIV.
P. 166a(i); see also Becon Constr. Co. v. Alonso, 444 S.W.3d 824, 828 (Tex. App.—Beaumont
2014, pet. denied) (“To prevail on a no-evidence summary-judgment motion, a movant must
establish that there is no evidence of one or more essential elements of the adverse
party’s…affirmative defense.”).
The movant on a no-evidence motion for summary judgment argues that there is no
evidence of one or more essential elements of the claims for which the nonmovant bears the burden
of proof. See TEX. R. CIV. P. 166a(i); Timpte Indus. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). To
defeat a Rule 166a(i) summary judgment motion, the nonmovant must produce summary judgment
evidence raising a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Ford Motor Co. v.
Ridgway, 135 S.W.3d 598 (Tex. 2004). A genuine issue of material fact exists if the nonmovant
produces more than a scintilla of evidence establishing the existence of the challenged element.
Ford Motor Co., 135 S.W.3d at 598; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
Argument and Authorities
I. There is no evidence that any transferee took assets in good faith or for
reasonably equivalent value.
Defendants pleaded that “taking in good faith and for reasonably equivalent value bar[s]
Plaintiff’s claims.” (Defendants’ Supplement to First Amended Answer ¶ 2.) This is an apparent
reference to TEX. BUS. COM. CODE § 24.009(a), which provides: “A transfer or obligation is not
voidable under Section 24.005(a)(1) of this code against a person who took in good faith and for a
reasonably equivalent value or against any subsequent transferee or obligee.” The Court should grant
summary judgment on this defense.
A. This defense does not apply to Elara Homes, Inc.
First, this subsection applies only to transferees, not transferors. Id. So here, the defense, if
proven, could not apply to Elara Homes, Inc. Even if any transfer were not voidable against a
transferee, Klaus could still obtain on his fraudulent transfer claim: (1) “an injunction against further
disposition by [Elara Homes]…of other property,” (2) “execution on” the “proceeds” of the transfer;
or (3) “any other relief the circumstances may require.” Id. § 24.008(2), (3). It is therefore not a “bar”
to any claim.
Also, because Stonecraft Homes, Inc. is not a party here, there is no reason to believe that
Defendants could assert any defense on Stonecraft’s behalf. Either way, as with the other transfers,
no-evidence grounds are reason enough to grant summary judgment on Elara’s § 24.009(a) defense
as applied to Elara Homes’ transfers to Stonecraft.
2
B. There is no evidence of an exchange for reasonably equivalent value or in good
faith.
This is an affirmative defense, and to maintain it, Defendants have “‘the burden of establishing
good faith and the reasonable equivalence of the consideration obtained.’” Hahn v. Love, 321 S.W.3d
517, 526 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also Smith v. Suarez (In re IFS Fin.
Corp.), 417 B.R. 419, 441 (Bankr. S.D. Tex. 2009) (“To establish an affirmative defense to
§ 24.005(a)(1), Defendants must produce evidence of two elements: (1) reasonably equivalent value;
and (2) good faith.”).
At least 29 of Elara Homes, Inc.’s transfers are relevant here:
1. one property transferred to Elara Signature Homes, Inc., valued at around $859,950 1;
2. two properties, valued at around $100,000 and $50,000, respectively, transferred to
TexStar Holdings, LLC 2; and
3. twenty-six transfers of liquid assets to Stonecraft Homes, Inc. between March 3, 2018
and October 3, 2019, in increments ranging from $5,000 to $40,000, totaling around
$357,000. 3
For all 29 transfers, there is no evidence that any transfer was for reasonably equivalent value,
nor is there evidence that any transferee took any asset in good faith.
1. There is no evidence of reasonably equivalent value.
Value “must be determined objectively at the time of the transfer and in relation to the
individual exchange at hand.” Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 582 (Tex. 2016). The
relevant question is “whether the debtor received value (i.e. whether the debtor received consideration
1
Ex. A, Texas Grand Circle Warranty Deed; Ex. B, Texas Grand Circle Property Tax Appraisal.
2
Ex. C, McAlister Warranty Deed; Ex. D, McAlister Property Tax Appraisal; Ex. E, Emerald Lakes Warranty Deed;
Ex. F, Emerald Lakes Property Tax Appraisal.
3
Ex. G, Quickbook Records of Transfers to Stonecraft Homes, Inc.; Ex. H, Secretary of State Records for Stonecraft
Homes, Inc.
3
with objective, economic value, not merely consideration with some subjective, ephemeral, or
emotional value) and whether the value exchanged was reasonably equivalent.” Id. at 581. “Value”
does not include “an unperformed promise made otherwise than in the ordinary course of the
promisor’s business to furnish support to the debtor or another person.” TEX. BUS. COM. CODE
§ 24.004(a).
Although there is no single, exclusive definition of “reasonably equivalent value,” this
affirmative defense “can be satisfied with evidence that the transferee (1) fully performed under a
lawful, arms-length contract for fair market value, (2) provided consideration that had objective value
at the time of the transaction, and (3) made the exchange in the ordinary course of the transferee's
business.” Osadon v. C&N Renovation, Inc., No. 05-17-00453-CV, 2018 Tex. App. LEXIS 3319, at
*14 (Tex. App.—Dallas May 9, 2018) (citing Janvey, 487 S.W.3d at 564, pet. denied).
There is no evidence that any of the transfers meet any of these definitions. Specifically:
1. There is no evidence that Elara Signature Homes, Inc. gave reasonably equivalent
value in exchange for the Texas Grand Circle Property, whose market value was at
least $859,950. 4
2. There is no evidence that Texstar Holdings, LLC gave reasonably equivalent value in
exchange for the McAlister property, whose market value was at least $100,000. 5
3. There is no evidence that Texstar Holdings, LLC gave reasonably equivalent value in
exchange for the Emerald Lakes property, whose market value was at least $50,000. 6
4. There is no evidence that Stonecraft Homes, Inc. gave reasonably equivalent value in
exchange for:
a. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3, 2018;
4
Ex. B, Texas Grand Circle Property Tax Appraisal.
5
Ex. D, McAlister Property Tax Appraisal.
6
Ex. F, Emerald Lakes Property Tax Appraisal.
4
b. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3, 2018;
c. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6, 2018;
d. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22, 2018;
e. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November 19, 2018;
f. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November 20, 2018;
g. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 26, 2018;
h. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 30, 2018;
i. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 7, 2018;
j. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December 14, 2018;
k. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 21, 2018;
l. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3, 2019;
m. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11, 2019;
n. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18, 2019;
o. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31, 2019;
p. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15, 2019;
q. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February 22, 2019;
r. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8, 2019;
s. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21, 2019;
t. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22, 2019;
u. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25, 2019;
v. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28, 2019;
w. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12, 2019;
x. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15, 2019;
5
y. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12, 2019; or
z. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3, 2019.
2. There is no evidence of good faith.
To prove that it took in good faith, a transferee must prove three elements: “that its conduct
was honest in fact, reasonable in light of known facts, and free from willful ignorance of fraud.”
Janvey v. GMAG, L.L.C., 592 S.W.3d 125, 129 (Tex. 2019). Of course, it is hard to imagine how
transfers among the Defendant corporations, all of which are owned and run by the same person
(Aubrey Hall) could ever meet that standard. Even a transferee that should be “suspicious” that a
transaction is fraudulent “must conduct a diligent investigation to prove good faith.” Id. at 131–32.
Given Defendants’ interrelatedness, there could be no serious argument that one of them did not know
what the other was doing. 7
In any case, there is no evidence that in any relevant transaction, any transferee was honest in
fact, reasonable in light of known facts, or free from willful ignorance of fraud.
1. Texas Grand Circle Property
a. There is no evidence that Elara Signature Homes, Inc.’s conduct was honest
in fact with regard to the transfer of the Texas Grand Circle property.
b. There is no evidence that Elara Signature Homes, Inc.’s conduct was
reasonable in light of known facts with regard to the transfer of the Texas
Grand Circle property.
7
The relationship between Defendants is detailed in Plaintiff’s Response to Defendants’ Motion for Summary
Judgment at pages 38–39. There, Plaintiff cited deposition testimony of Aubrey Hall and David Weber (both of
whose transcripts are on file as attachments to that response), showing that the Defendant corporations are (1)
engaged in the same business and operate as related companies and (2) all solely owned and controlled by
Defendant Aubrey Hall. Those arguments and that evidence are specifically incorporated by reference here.
6
c. There is no evidence that Elara Signature Homes, Inc. was free of willful
ignorance of fraud with regard to the transfer of the Texas Grand Circle
property.
2. McAlister Property
a. There is no evidence that Texstar Holdings, LLC’s conduct was honest in fact
with regard to the transfer of the McAlister property.
b. There is no evidence that TexStar Holdings, LLC’s conduct was reasonable in
light of known facts with regard to the transfer of the McAlister property.
c. There is no evidence that TexStar Holdings, LLC was free of willful ignorance
of fraud with regard to the transfer of the McAlister property.
3. Emerald Lakes Property
a. There is no evidence that Texstar Holdings, LLC’s conduct was honest in fact
with regard to the transfer of the Emerald Lakes property.
b. There is no evidence that TexStar Holdings, LLC’s conduct was reasonable in
light of known facts with regard to the transfer of the Emerald Lakes property.
c. There is no evidence that TexStar Holdings, LLC was free of willful ignorance
of fraud with regard to the transfer of the Emerald Lakes property.
4. Liquid Assets
a. There is no evidence that Stonecraft Homes, Inc.’s conduct was honest in fact
regarding:
1. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3,
2018;
7
2. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3,
2018;
3. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6,
2018;
4. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22,
2018;
5. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November
19, 2018;
6. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November
20, 2018;
7. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November
26, 2018;
8. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November
30, 2018;
9. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December
7, 2018;
10. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December
14, 2018;
11. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December
21, 2018;
12. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3,
2019;
8
13. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11,
2019;
14. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18,
2019;
15. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31,
2019;
16. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15,
2019;
17. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February
22, 2019;
18. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8,
2019;
19. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21,
2019;
20. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22,
2019;
21. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25,
2019;
22. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28,
2019;
23. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12,
2019;
9
24. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15,
2019;
25. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12,
2019; or
26. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3,
2019.
b. There is no evidence that Stonecraft Homes, Inc.’s conduct was reasonable in
light of known facts regarding:
1. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3,
2018;
2. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3,
2018;
3. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6,
2018;
4. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22,
2018;
5. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November
19, 2018;
6. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November
20, 2018;
7. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November
26, 2018;
10
8. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November
30, 2018;
9. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December
7, 2018;
10. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December
14, 2018;
11. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December
21, 2018;
12. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3,
2019;
13. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11,
2019;
14. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18,
2019;
15. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31,
2019;
16. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15,
2019;
17. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February
22, 2019;
18. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8,
2019;
11
19. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21,
2019;
20. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22,
2019;
21. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25,
2019;
22. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28,
2019;
23. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12,
2019;
24. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15,
2019;
25. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12,
2019; or
26. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3,
2019.
c. There is no evidence that Stonecraft Homes, Inc. was free of willful
ignorance of fraud regarding:
1. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3,
2018;
2. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3,
2018;
12
3. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6,
2018;
4. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22,
2018;
5. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November
19, 2018;
6. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November
20, 2018;
7. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November
26, 2018;
8. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November
30, 2018;
9. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December
7, 2018;
10. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December
14, 2018;
11. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December
21, 2018;
12. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3,
2019;
13. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11,
2019;
13
14. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18,
2019;
15. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31,
2019;
16. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15,
2019;
17. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February
22, 2019;
18. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8,
2019;
19. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21,
2019;
20. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22,
2019;
21. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25,
2019;
22. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28,
2019;
23. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12,
2019;
24. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15,
2019;
14
25. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12,
2019; or
26. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3,
2019.
In sum, there is no evidence of good faith and there is no evidence of reasonably equivalent
value. This Court should grant summary judgment on Defendants’ “good faith and reasonably
equivalent value” defense.
II. There is no evidence that anyone but Defendants caused Plaintiff’s injuries.
Defendants pled that “comparative fault bars Plaintiff’s claims.” Presumably, Defendants
meant this as a catch-all for any negligent acts by any third party that proximately caused Klaus’s
injuries. That is, Defendants apparently intend to invoke the proportionate responsibility statute, TEX.
CIV. PRAC. & REM. CODE § 33.003. To use the statute here, Defendants have to present “sufficient
evidence to support the submission” of a jury question on whether Mark Klaus’s “negligent act or
omission” or “other conduct or activity that violates an applicable legal standard” caused his injuries.
Id. As explained below, Defendants cannot invoke the statute against Klaus or any nonparty.
A. There is no evidence to support apportioning fault to Klaus.
“The defense of contributory negligence requires findings that the victim was negligent and
that the victim’s negligence was a proximate cause of the injury or damages.” Brown v. Edwards
Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988). Defendants have no evidence to support those
findings or applying the proportionate responsibility statute to Klaus.
1. There is no evidence of any negligent act or omission by Mark Klaus.
2. There is no evidence that Mark Klaus’s conduct violated any applicable legal
standard.
15
3. There is no evidence that any negligence or unlawful action by Klaus proximately
caused Klaus’s injuries or damages.
a. There is no evidence that any negligence or unlawful action by Klaus was a
cause in fact of Klaus’s injuries or damages. See Nixon v. Mr. Property
Management Corp., 690 S.W.2d 546, 549 (Tex. 1985).
b. There is no evidence that Klaus’s injuries or damages were a foreseeable result
of any negligence or unlawful action by Klaus. See id.
B. Without evidence of Klaus’s fault, there can be no proportionate responsibility here.
When the evidence supports its submission, the jury can consider a question regarding the
proportionate responsibility of: “(1) each claimant; (2) each defendant; (3) each settling person; and
(4) each responsible third party who has been designated under Section 33.004.” TEX. CIV. PRAC. &
REM. CODE § 33.003. Klaus is the only claimant, and as explained above, there is no evidence that
Klaus bears any responsibility for his injuries. Defendants presumably do not intend to assert that one
of them was negligent. There is no settling defendant. Finally, Defendants have designated no
responsible third party, and it is far too late to do so. Id. § 33.004.
In sum, because Defendants lack evidence to support finding Klaus responsible, the
proportionate responsibility statute cannot apply. This Court should grant summary judgment on
Defendants’ comparative fault defense.
Conclusion
Defendants have no evidence to support their comparative fault and “good faith and
reasonably equivalent value” defenses. This Court should grant summary judgment on both
affirmative defenses. Klaus also asks the Court for any other relief to which he may be entitled.
16
Dated: January 11, 2021 Respectfully submitted,
/s/ Ryan W. Wham
Ryan W. Wham
Texas Bar No. 24115942
ryanwham@whamandrogers.com
Mark Wham
Texas Bar No. 21239560
markwham@whamandrogers.com
Rene S. Rogers
Texas Bar No. 17185200
renerogers@whamandrogers.com
WHAM & ROGERS, PLLC
1790 Hughes Landing Blvd., Suite 400
The Woodlands, Texas 77380
Direct: 832-592-1108
Fax: 832-442-3362
Kirk Pittard
State Bar No. 24010313
Dana Levy
State Bar No. 24031869
Durham, Pittard & Spalding, LLP
P.O. Box 224626
Dallas, Texas 75222
Telephone: (214) 946-8000
Facsimile: (214) 946-8433
kpittard@dpslawgroup.com
dlevy@ dpslawgroup.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF CONFERENCE
The Parties conferred regarding this motion on January 11, 2021. Defendants are opposed.
CERTIFICATE OF SERVICE
This motion was served on all counsel of record via eservice, in accordance with the rules of
civil procedure.
/s/ Ryan W. Wham
Ryan W. Wham
17
18
EXHIBIT
DOC #2019059055 A
NOTICE OF CONFIDENTIALLITY RIGHTS: IF YOU ARE A NATURAL PERSON,YOU MAY REMOVE OR STRIKE ANY OR
AU OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE
PUBLIC RECORDS: YOUR SOCIAL SECURITY NUBER OR YOUR DRIVER'S LICENSE NUMBER.
WARRANTY DEED
THE STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS;
COUNTY OF WALKER
THAT I, AUBREY HALL, PRESIDENT OF ELARA HOMES, INC., of the County of Montgomerv,
State of Texas, for and in consideration of the sum of TEN AND NO/lOO {$10.00) DOLLARS and together
good and valuable consideration to the undersigned paid by the Grantee herein named,the receipt of
which is hereby acknowledged, have GRANTED,SOLD AND CONVEYED,and by these presents do
GRANT, SELL AND CONVEY unto ELARA SIGNATURE HOMES, INC., of the County of Montgomery, and the
State of Texas, ail the following described real property in Walker County, Texas, to-wit:
LOT 1, BLOCK 6,SECTION 1,TEXAS GRAND RANCH, NEW WAVERYLY,TEXAS,77358, F/K/A, 106 TEXAS
GRAND CIRCLE, NEW WAVERLY,TEXAS 77358.
This conveyance is made and accepted subject to any and all valid covenants, conditions, restrictions,
easements and outstanding mineral and/or royalty interests in the oil, gas, and other minerals and
leases thereon, now outstanding or affecting the premises herein conveyed, now of record in the
County Clerk's office of Walker County. Texas, but only to the extent they are still in force and
effect.
TO HAVE AND TO HOLD the above described premises, together with all and singular the right and
appurtenances thereto in anywise belonging unto the said Grantee and Grantee's successors and
assigns, forever. And Grantor does hereby bind Grantor and Grantor's successors and assigns, to
warrant and forever defend all and singular the said premises unto the said Grantee and Grantee's and
Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the
same of any part thereof.
hereby certify that this is a true and correct
copy of the original record on^HeTTt^my office
Turn nty Cleh
, Tex/s
issued " /I-3D-7£Q0
Executed this 1 day of March 2019
Name: Aubrey Hall
Title: President of Eiara Homes, Irtc.
STATE OF TEXAS
COUNTY OF WALLER
This instrument was acknowledged before me on the 1 day of March 2019 by Aubrey Hall, President of
Eiara Homes, Inc., on behalf of said entity in the capacity here stat
Public, State of Texas
OAViD JOSEPH WEBER
After Recording return to:
Notary Public. Siils of Texas
Eiara Signature Homes, Inc. Comm. Expires 07-08-2020
Ill North Holland Street Notaryip: B213326
Willis, Tx 77378
I hereby certify that this is a true and correct
copy of the original record on file InjTiy office
ull, Coun^Clerk
tgomery ^untw Texas
DeDu
Doc #:2019059055
Pages 3
FILED FOR RECORD
07/05/2019 11:34AM
COUMTV CLERK
MONTGOMERY COUNTY. TEXAS
STATE OF TEXAS,
COUNTY OF MONTGOMERY
I hereby certify that this instrument was filed in the file number
sequence on the date and time stamped herein
by me and was duly RECORDED in the Official Public
Records of Montgomery County, Texas.
07/05/2019
Courtly Clerk
Montgomery Couniy, Texas
1 hereby certify that this is a true and correct
copy of the original record on file In my office
Turribull, County Clerk
imen/ ColintV/'Texas
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Received and E-Filed for Record 1/11/2021 5:40 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Jeff Fiore CAUSE NO. 18-09-11899 MARK KLAUS, § IN THE DISTRICT COURT OF PLAINTIFF § § § V. § § ELARA SIGNATURE HOMES, INC. § MONTGOMERY COUNTY, TEXAS ELARA HOMES, INC., § § ELARA CONSTRUCTION, INC. § and AUBREY M. HALL § § DEFENDANTS 457th DISTRICT COURT PLAINTIFF’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Mark Klaus asks the Court to grant summary judgment on Defendants’ affirmative defenses of “good faith and reasonably equivalent value” and comparative fault because there is no evidence to support either defense. Standard of Review Affirmative defenses are subject to no-evidence summary judgment motions because they are “defense[s] on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i); see also Becon Constr. Co. v. Alonso, 444 S.W.3d 824, 828 (Tex. App.—Beaumont 2014, pet. denied) (“To prevail on a no-evidence summary-judgment motion, a movant must establish that there is no evidence of one or more essential elements of the adverse party’s…affirmative defense.”). The movant on a no-evidence motion for summary judgment argues that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof. See TEX. R. CIV. P. 166a(i); Timpte Indus. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). To defeat a Rule 166a(i) summary judgment motion, the nonmovant must produce summary judgment evidence raising a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004). A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged element. Ford Motor Co., 135 S.W.3d at 598; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). Argument and Authorities I. There is no evidence that any transferee took assets in good faith or for reasonably equivalent value. Defendants pleaded that “taking in good faith and for reasonably equivalent value bar[s] Plaintiff’s claims.” (Defendants’ Supplement to First Amended Answer ¶ 2.) This is an apparent reference to TEX. BUS. COM. CODE § 24.009(a), which provides: “A transfer or obligation is not voidable under Section 24.005(a)(1) of this code against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.” The Court should grant summary judgment on this defense. A. This defense does not apply to Elara Homes, Inc. First, this subsection applies only to transferees, not transferors. Id. So here, the defense, if proven, could not apply to Elara Homes, Inc. Even if any transfer were not voidable against a transferee, Klaus could still obtain on his fraudulent transfer claim: (1) “an injunction against further disposition by [Elara Homes]…of other property,” (2) “execution on” the “proceeds” of the transfer; or (3) “any other relief the circumstances may require.” Id. § 24.008(2), (3). It is therefore not a “bar” to any claim. Also, because Stonecraft Homes, Inc. is not a party here, there is no reason to believe that Defendants could assert any defense on Stonecraft’s behalf. Either way, as with the other transfers, no-evidence grounds are reason enough to grant summary judgment on Elara’s § 24.009(a) defense as applied to Elara Homes’ transfers to Stonecraft. 2 B. There is no evidence of an exchange for reasonably equivalent value or in good faith. This is an affirmative defense, and to maintain it, Defendants have “‘the burden of establishing good faith and the reasonable equivalence of the consideration obtained.’” Hahn v. Love, 321 S.W.3d 517, 526 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also Smith v. Suarez (In re IFS Fin. Corp.), 417 B.R. 419, 441 (Bankr. S.D. Tex. 2009) (“To establish an affirmative defense to § 24.005(a)(1), Defendants must produce evidence of two elements: (1) reasonably equivalent value; and (2) good faith.”). At least 29 of Elara Homes, Inc.’s transfers are relevant here: 1. one property transferred to Elara Signature Homes, Inc., valued at around $859,950 1; 2. two properties, valued at around $100,000 and $50,000, respectively, transferred to TexStar Holdings, LLC 2; and 3. twenty-six transfers of liquid assets to Stonecraft Homes, Inc. between March 3, 2018 and October 3, 2019, in increments ranging from $5,000 to $40,000, totaling around $357,000. 3 For all 29 transfers, there is no evidence that any transfer was for reasonably equivalent value, nor is there evidence that any transferee took any asset in good faith. 1. There is no evidence of reasonably equivalent value. Value “must be determined objectively at the time of the transfer and in relation to the individual exchange at hand.” Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 582 (Tex. 2016). The relevant question is “whether the debtor received value (i.e. whether the debtor received consideration 1 Ex. A, Texas Grand Circle Warranty Deed; Ex. B, Texas Grand Circle Property Tax Appraisal. 2 Ex. C, McAlister Warranty Deed; Ex. D, McAlister Property Tax Appraisal; Ex. E, Emerald Lakes Warranty Deed; Ex. F, Emerald Lakes Property Tax Appraisal. 3 Ex. G, Quickbook Records of Transfers to Stonecraft Homes, Inc.; Ex. H, Secretary of State Records for Stonecraft Homes, Inc. 3 with objective, economic value, not merely consideration with some subjective, ephemeral, or emotional value) and whether the value exchanged was reasonably equivalent.” Id. at 581. “Value” does not include “an unperformed promise made otherwise than in the ordinary course of the promisor’s business to furnish support to the debtor or another person.” TEX. BUS. COM. CODE § 24.004(a). Although there is no single, exclusive definition of “reasonably equivalent value,” this affirmative defense “can be satisfied with evidence that the transferee (1) fully performed under a lawful, arms-length contract for fair market value, (2) provided consideration that had objective value at the time of the transaction, and (3) made the exchange in the ordinary course of the transferee's business.” Osadon v. C&N Renovation, Inc., No. 05-17-00453-CV, 2018 Tex. App. LEXIS 3319, at *14 (Tex. App.—Dallas May 9, 2018) (citing Janvey, 487 S.W.3d at 564, pet. denied). There is no evidence that any of the transfers meet any of these definitions. Specifically: 1. There is no evidence that Elara Signature Homes, Inc. gave reasonably equivalent value in exchange for the Texas Grand Circle Property, whose market value was at least $859,950. 4 2. There is no evidence that Texstar Holdings, LLC gave reasonably equivalent value in exchange for the McAlister property, whose market value was at least $100,000. 5 3. There is no evidence that Texstar Holdings, LLC gave reasonably equivalent value in exchange for the Emerald Lakes property, whose market value was at least $50,000. 6 4. There is no evidence that Stonecraft Homes, Inc. gave reasonably equivalent value in exchange for: a. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3, 2018; 4 Ex. B, Texas Grand Circle Property Tax Appraisal. 5 Ex. D, McAlister Property Tax Appraisal. 6 Ex. F, Emerald Lakes Property Tax Appraisal. 4 b. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3, 2018; c. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6, 2018; d. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22, 2018; e. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November 19, 2018; f. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November 20, 2018; g. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 26, 2018; h. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 30, 2018; i. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 7, 2018; j. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December 14, 2018; k. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 21, 2018; l. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3, 2019; m. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11, 2019; n. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18, 2019; o. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31, 2019; p. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15, 2019; q. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February 22, 2019; r. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8, 2019; s. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21, 2019; t. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22, 2019; u. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25, 2019; v. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28, 2019; w. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12, 2019; x. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15, 2019; 5 y. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12, 2019; or z. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3, 2019. 2. There is no evidence of good faith. To prove that it took in good faith, a transferee must prove three elements: “that its conduct was honest in fact, reasonable in light of known facts, and free from willful ignorance of fraud.” Janvey v. GMAG, L.L.C., 592 S.W.3d 125, 129 (Tex. 2019). Of course, it is hard to imagine how transfers among the Defendant corporations, all of which are owned and run by the same person (Aubrey Hall) could ever meet that standard. Even a transferee that should be “suspicious” that a transaction is fraudulent “must conduct a diligent investigation to prove good faith.” Id. at 131–32. Given Defendants’ interrelatedness, there could be no serious argument that one of them did not know what the other was doing. 7 In any case, there is no evidence that in any relevant transaction, any transferee was honest in fact, reasonable in light of known facts, or free from willful ignorance of fraud. 1. Texas Grand Circle Property a. There is no evidence that Elara Signature Homes, Inc.’s conduct was honest in fact with regard to the transfer of the Texas Grand Circle property. b. There is no evidence that Elara Signature Homes, Inc.’s conduct was reasonable in light of known facts with regard to the transfer of the Texas Grand Circle property. 7 The relationship between Defendants is detailed in Plaintiff’s Response to Defendants’ Motion for Summary Judgment at pages 38–39. There, Plaintiff cited deposition testimony of Aubrey Hall and David Weber (both of whose transcripts are on file as attachments to that response), showing that the Defendant corporations are (1) engaged in the same business and operate as related companies and (2) all solely owned and controlled by Defendant Aubrey Hall. Those arguments and that evidence are specifically incorporated by reference here. 6 c. There is no evidence that Elara Signature Homes, Inc. was free of willful ignorance of fraud with regard to the transfer of the Texas Grand Circle property. 2. McAlister Property a. There is no evidence that Texstar Holdings, LLC’s conduct was honest in fact with regard to the transfer of the McAlister property. b. There is no evidence that TexStar Holdings, LLC’s conduct was reasonable in light of known facts with regard to the transfer of the McAlister property. c. There is no evidence that TexStar Holdings, LLC was free of willful ignorance of fraud with regard to the transfer of the McAlister property. 3. Emerald Lakes Property a. There is no evidence that Texstar Holdings, LLC’s conduct was honest in fact with regard to the transfer of the Emerald Lakes property. b. There is no evidence that TexStar Holdings, LLC’s conduct was reasonable in light of known facts with regard to the transfer of the Emerald Lakes property. c. There is no evidence that TexStar Holdings, LLC was free of willful ignorance of fraud with regard to the transfer of the Emerald Lakes property. 4. Liquid Assets a. There is no evidence that Stonecraft Homes, Inc.’s conduct was honest in fact regarding: 1. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3, 2018; 7 2. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3, 2018; 3. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6, 2018; 4. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22, 2018; 5. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November 19, 2018; 6. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November 20, 2018; 7. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 26, 2018; 8. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 30, 2018; 9. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 7, 2018; 10. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December 14, 2018; 11. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 21, 2018; 12. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3, 2019; 8 13. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11, 2019; 14. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18, 2019; 15. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31, 2019; 16. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15, 2019; 17. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February 22, 2019; 18. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8, 2019; 19. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21, 2019; 20. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22, 2019; 21. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25, 2019; 22. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28, 2019; 23. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12, 2019; 9 24. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15, 2019; 25. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12, 2019; or 26. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3, 2019. b. There is no evidence that Stonecraft Homes, Inc.’s conduct was reasonable in light of known facts regarding: 1. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3, 2018; 2. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3, 2018; 3. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6, 2018; 4. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22, 2018; 5. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November 19, 2018; 6. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November 20, 2018; 7. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 26, 2018; 10 8. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 30, 2018; 9. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 7, 2018; 10. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December 14, 2018; 11. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 21, 2018; 12. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3, 2019; 13. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11, 2019; 14. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18, 2019; 15. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31, 2019; 16. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15, 2019; 17. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February 22, 2019; 18. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8, 2019; 11 19. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21, 2019; 20. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22, 2019; 21. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25, 2019; 22. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28, 2019; 23. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12, 2019; 24. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15, 2019; 25. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12, 2019; or 26. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3, 2019. c. There is no evidence that Stonecraft Homes, Inc. was free of willful ignorance of fraud regarding: 1. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on March 3, 2018; 2. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 3, 2018; 12 3. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on August 6, 2018; 4. $40,000.00 Elara Homes, Inc. transferred to Stonecraft on October 22, 2018; 5. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on November 19, 2018; 6. $15,000.00 Elara Homes, Inc. transferred to Stonecraft on November 20, 2018; 7. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 26, 2018; 8. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on November 30, 2018; 9. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 7, 2018; 10. $19,000.00 Elara Homes, Inc. transferred to Stonecraft on December 14, 2018; 11. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on December 21, 2018; 12. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 3, 2019; 13. $25,000.00 Elara Homes, Inc. transferred to Stonecraft on January 11, 2019; 13 14. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 18, 2019; 15. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on January 31, 2019; 16. $5,000.00 Elara Homes, Inc. transferred to Stonecraft on February 15, 2019; 17. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on February 22, 2019; 18. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on March 8, 2019; 19. $22,000.00 Elara Homes, Inc. transferred to Stonecraft on March 21, 2019; 20. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on March 22, 2019; 21. $6,000.00 Elara Homes, Inc. transferred to Stonecraft on March 25, 2019; 22. $8,000.00 Elara Homes, Inc. transferred to Stonecraft on June 28, 2019; 23. $20,000.00 Elara Homes, Inc. transferred to Stonecraft on July 12, 2019; 24. $10,000.00 Elara Homes, Inc. transferred to Stonecraft on July 15, 2019; 14 25. $35,000.00 Elara Homes, Inc. transferred to Stonecraft on August 12, 2019; or 26. $7,000.00 Elara Homes, Inc. transferred to Stonecraft on October 3, 2019. In sum, there is no evidence of good faith and there is no evidence of reasonably equivalent value. This Court should grant summary judgment on Defendants’ “good faith and reasonably equivalent value” defense. II. There is no evidence that anyone but Defendants caused Plaintiff’s injuries. Defendants pled that “comparative fault bars Plaintiff’s claims.” Presumably, Defendants meant this as a catch-all for any negligent acts by any third party that proximately caused Klaus’s injuries. That is, Defendants apparently intend to invoke the proportionate responsibility statute, TEX. CIV. PRAC. & REM. CODE § 33.003. To use the statute here, Defendants have to present “sufficient evidence to support the submission” of a jury question on whether Mark Klaus’s “negligent act or omission” or “other conduct or activity that violates an applicable legal standard” caused his injuries. Id. As explained below, Defendants cannot invoke the statute against Klaus or any nonparty. A. There is no evidence to support apportioning fault to Klaus. “The defense of contributory negligence requires findings that the victim was negligent and that the victim’s negligence was a proximate cause of the injury or damages.” Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988). Defendants have no evidence to support those findings or applying the proportionate responsibility statute to Klaus. 1. There is no evidence of any negligent act or omission by Mark Klaus. 2. There is no evidence that Mark Klaus’s conduct violated any applicable legal standard. 15 3. There is no evidence that any negligence or unlawful action by Klaus proximately caused Klaus’s injuries or damages. a. There is no evidence that any negligence or unlawful action by Klaus was a cause in fact of Klaus’s injuries or damages. See Nixon v. Mr. Property Management Corp., 690 S.W.2d 546, 549 (Tex. 1985). b. There is no evidence that Klaus’s injuries or damages were a foreseeable result of any negligence or unlawful action by Klaus. See id. B. Without evidence of Klaus’s fault, there can be no proportionate responsibility here. When the evidence supports its submission, the jury can consider a question regarding the proportionate responsibility of: “(1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been designated under Section 33.004.” TEX. CIV. PRAC. & REM. CODE § 33.003. Klaus is the only claimant, and as explained above, there is no evidence that Klaus bears any responsibility for his injuries. Defendants presumably do not intend to assert that one of them was negligent. There is no settling defendant. Finally, Defendants have designated no responsible third party, and it is far too late to do so. Id. § 33.004. In sum, because Defendants lack evidence to support finding Klaus responsible, the proportionate responsibility statute cannot apply. This Court should grant summary judgment on Defendants’ comparative fault defense. Conclusion Defendants have no evidence to support their comparative fault and “good faith and reasonably equivalent value” defenses. This Court should grant summary judgment on both affirmative defenses. Klaus also asks the Court for any other relief to which he may be entitled. 16 Dated: January 11, 2021 Respectfully submitted, /s/ Ryan W. Wham Ryan W. Wham Texas Bar No. 24115942 ryanwham@whamandrogers.com Mark Wham Texas Bar No. 21239560 markwham@whamandrogers.com Rene S. Rogers Texas Bar No. 17185200 renerogers@whamandrogers.com WHAM & ROGERS, PLLC 1790 Hughes Landing Blvd., Suite 400 The Woodlands, Texas 77380 Direct: 832-592-1108 Fax: 832-442-3362 Kirk Pittard State Bar No. 24010313 Dana Levy State Bar No. 24031869 Durham, Pittard & Spalding, LLP P.O. Box 224626 Dallas, Texas 75222 Telephone: (214) 946-8000 Facsimile: (214) 946-8433 kpittard@dpslawgroup.com dlevy@ dpslawgroup.com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF CONFERENCE The Parties conferred regarding this motion on January 11, 2021. Defendants are opposed. CERTIFICATE OF SERVICE This motion was served on all counsel of record via eservice, in accordance with the rules of civil procedure. /s/ Ryan W. Wham Ryan W. Wham 17 18 EXHIBIT DOC #2019059055 A NOTICE OF CONFIDENTIALLITY RIGHTS: IF YOU ARE A NATURAL PERSON,YOU MAY REMOVE OR STRIKE ANY OR AU OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUBER OR YOUR DRIVER'S LICENSE NUMBER. WARRANTY DEED THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS; COUNTY OF WALKER THAT I, AUBREY HALL, PRESIDENT OF ELARA HOMES, INC., of the County of Montgomerv, State of Texas, for and in consideration of the sum of TEN AND NO/lOO {$10.00) DOLLARS and together good and valuable consideration to the undersigned paid by the Grantee herein named,the receipt of which is hereby acknowledged, have GRANTED,SOLD AND CONVEYED,and by these presents do GRANT, SELL AND CONVEY unto ELARA SIGNATURE HOMES, INC., of the County of Montgomery, and the State of Texas, ail the following described real property in Walker County, Texas, to-wit: LOT 1, BLOCK 6,SECTION 1,TEXAS GRAND RANCH, NEW WAVERYLY,TEXAS,77358, F/K/A, 106 TEXAS GRAND CIRCLE, NEW WAVERLY,TEXAS 77358. This conveyance is made and accepted subject to any and all valid covenants, conditions, restrictions, easements and outstanding mineral and/or royalty interests in the oil, gas, and other minerals and leases thereon, now outstanding or affecting the premises herein conveyed, now of record in the County Clerk's office of Walker County. Texas, but only to the extent they are still in force and effect. TO HAVE AND TO HOLD the above described premises, together with all and singular the right and appurtenances thereto in anywise belonging unto the said Grantee and Grantee's successors and assigns, forever. And Grantor does hereby bind Grantor and Grantor's successors and assigns, to warrant and forever defend all and singular the said premises unto the said Grantee and Grantee's and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same of any part thereof. hereby certify that this is a true and correct copy of the original record on^HeTTt^my office Turn nty Cleh , Tex/s issued " /I-3D-7£Q0 Executed this 1 day of March 2019 Name: Aubrey Hall Title: President of Eiara Homes, Irtc. STATE OF TEXAS COUNTY OF WALLER This instrument was acknowledged before me on the 1 day of March 2019 by Aubrey Hall, President of Eiara Homes, Inc., on behalf of said entity in the capacity here stat Public, State of Texas OAViD JOSEPH WEBER After Recording return to: Notary Public. Siils of Texas Eiara Signature Homes, Inc. Comm. Expires 07-08-2020 Ill North Holland Street Notaryip: B213326 Willis, Tx 77378 I hereby certify that this is a true and correct copy of the original record on file InjTiy office ull, Coun^Clerk tgomery ^untw Texas DeDu Doc #:2019059055 Pages 3 FILED FOR RECORD 07/05/2019 11:34AM COUMTV CLERK MONTGOMERY COUNTY. TEXAS STATE OF TEXAS, COUNTY OF MONTGOMERY I hereby certify that this instrument was filed in the file number sequence on the date and time stamped herein by me and was duly RECORDED in the Official Public Records of Montgomery County, Texas. 07/05/2019 Courtly Clerk Montgomery Couniy, Texas 1 hereby certify that this is a true and correct copy of the original record on file In my office Turribull, County Clerk imen/ ColintV/'Texas