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CAUSE NO. 17
WAYNE BREWER AND MELINDA BREWER IN THE DISTRICT COURT OF
MONTGOMERY COUNTY, TEXAS
GICOR, INC., MEMO EXPRESS, L.L.C., AND
FLORENCIO GUERRA A/K/A F.I. GUERRA JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANTS’
EVIDENCE MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THIS COURT:
WAYNE BREWER MELINDA BREWER, Plaintiffs, file this their Response to
Defendants’ NoEvidence Motion for Summary Judgment (“Motion”) and would show the
Court as follows:
Basis for Denial of Motion
Plaintiffs present herein competent, voluminous, and persuasive
evidence establishing that Defendants misrepresented the development
and construction of a townhome community on Lake Conroe, including
their compliance with approved and required drainage plans, the use of
improper fill soil, the failure to compact fill soil properly, the creation of
a slope of fill soil without engineering approval, modification of the
drainage plan, or a retaining wall to avoid erosion and collapse of the
sloped fill, the professional nature of the design and construction of the
Townhome purchased by them, improper drainage of surface water
which led to erosion of soil under the Townhome’s foundation, and
failure to comply with building and other codes, industry standards, an
proper inspections of the construction. Plaintiffs justifiably relied on
Defendants’ statements about these conditions, to their detriment.
These actions support all of Plaintiffs’ claims for DTPA violations, fraud,
fraud by non and negligent misrepresentation. The
enumerated failures by Defendants also support Plaintiffs’ claims for
negligence, negligence per se, nuisance, and breach of implied
warranties. Plaintiffs suffered, and will suffer, actual monetary losses
and diminution of value. ummary judgment is not warranted and the
Motion should be denied.
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
Introduction
This lawsuit arises out of Defendants’ actions in connection with the
development of the Bellago townhome community on Lake Conroe. Defendants developed
the land, were responsible for ensuring proper drainage and construction. They repeatedly
failed to satisfy those duties. Plaintiffs purchased a townhome which has suffered will
suffer structural damage, if repairs are not made, as well as diminution of value
Plaintiffs alleged various causes of action against Defendants to redress these
damages and injuries. By a Motion for Summary Judgment under Texas Rule of Civil
Procedure 166a(i) (“Motion”), Defendants challenge every single element every single cause
f action. For the reasons stated herein, and in light of the attached voluminous and ample
competent summary judgment evidence in support of each element, the Motion must be
denied and this case must go to trial.
Defendants’ Refusal to Comply with This Court’s Order and to Respond to
Outstanding Discovery Requests Mandate Denial of the Motion
Texas Rule of Civil Procedure 166a(g) states that, if a party is unable to present
facts essential to justify its opposition to a motion for summary judgment, the Court may
“refuse the application for judgment.” 166a(g). As established by the affidavit
testimony of Plaintiffs’ counsel and arguments below, Defendants’ refusal to comply with
this Court’s Order and to respond to outstanding discovery requests has hampered Plaintiffs’
ability to secure all of the available competent summary judgment evidence that may be
to defeat the Motion. To the extent that this Court determines that Plaintiffs failed to
present more than a scintilla of evidence in support of any one of the challenged elements of
their cause of action, Plaintiffs would invoke the remedies of Rule 166a(g) and seek outright
denial of the Motion due to Defendants’ continued intransigence in the following three areas
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
First, as this Court is aware it issued a comprehensive Order
Defendants’ discovery responses November 12, 2020. Except for one discovery request,
this Order overruled Defendants’ objections and required full compliance with the
outstanding requests. See Exhibit A. That Order required compliance by November 30, 2020.
While Defendants served supplemental discovery responses on that day, they failed to
comply fully with the Order. Plaintiffs’ counsel sent correspondence on December 11, 2020
outlining the remaining deficiencies and seeking full supplementation by December 21,
See . Despite having yet another attempt to comply, Defendants still have
not provided everything that this Court ordered them to provide, including responsive
documents in connection with the Third Set of Requests for Production to Defendants Gicor,
Inc. (“Gicor”) and Memo Express, LLC (“Memo”). See . While this refusal to obey a
Court order will be the subject of a separate Motion for Sanctions and/or Contempt, it is
appropriately raised under the provisions of Rule 166a(g). The documents sought in the
Third Set of Requests for Production relate directly to the interconnectedness among
Defendants, which is being challenged by Defendants in the Motion. See infra at ¶¶
. For this reason, Plaintiffs urge this Court to deny the Motion under Rule 166a(g) for
Defendants’ failure to comply fully with the November 12, 2020 Order.
Second, Defendants failed and refused to respond properly and completely to
discovery requests which were drafted after the depositions of their corporate
representatives. See . During those depositions, Defendants’ representatives
confirmed under oath that Defendants had specific relevant and material documents in th
actual and/or constructive possession, custody, and control. See . Plaintiffs
prepared specific requests for production seeking the documents referenced during the
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
depositions. Despite testifying that responsive documents did exist, Defendants failed to
respond to Requests Nos. 3, 6, 8, 9, 10, 12, 13, 14 15, 16, 17, 26, 27, 29, 32, 34, 37, 39, 43, 48,
49, 50, 51, 52, 53, 54 and 55 by producing the documents that Defendants corporate
representatives’ deposition testimony indicated existed and were available to Defendants.
Those documents relate to the interconnectedness among Defendants, the development and
construction of Bellago, and the construction of Plaintiffs’ townhome. Plaintiffs’ counsel sent
correspondence on December 11, 2020 outlining these deficiencies and seeking full
supplementation by December 21, 2020. See . No such supplementation was
provided. While this discovery abuse will be the subject of a separate Motion to Overrule
Objections, to Compel Discovery Responses, and for Sanctions and/or Contempt, it is
appropriately raised under the provisions of Rule 166a(g). For this reason, Plaintiffs urge
this Court to deny the Motion under Rule 166a(g) for failure to respond fully to outstanding
Third, with respect to documents that Defendants did produce in response to
the Fourth Set of Requests for Production, they failed in their responses to specify the Bates
numbers to which each document was responsive. See This Court’s Order of
November 12, 2020 made clear that a proper response to a request for production would
require reference to Bates numbers. See Exhibit A. Plaintiffs’ counsel sought
supplementation of Requests Nos. 1, 2, 4, 5, 7, 11, 18, 19, 20, 21, 22, 23, 24, 25, 28, 30, 31, 33,
35, 36, 38, 40, 41, 42, 44, 45, 46, 47, and 56 so that Defendants would either produce the
responsive documents or provide specific Bates numbers to identify said documents. See
. They failed to do so. While this discovery abuse will be the subject of a separate
Motion to Overrule Objections, to Compel Discovery Responses, and for Sanctions and/or
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
Contempt, it is appropriately raised under the provisions of Rule 166a(g). For this reason,
Plaintiffs urge this Court to deny the Motion under Rule 166a(g) for failure to respond fully
to outstanding discovery.
n the event that all or part of the Motion survives the request for dismissal
under Rule 166a(g), Plaintiffs offer the following competent summary judgment and
argument.
Evidence Summary Judgment Standard
Texas Rule of Civil Procedure 166a(i) reads as follows:
After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment
on the ground that there is no evidence of one or more essential
elements of a claim or defense on which an adverse party would
have the burden of proof at trial. The motion must state the
elements as to which there is no evidence. The court must grant
the motion unless the respondent produce summary judgment
evidence raising a genuine issue of material fact
166a(i).
Rule 166a(i) begins this Court’s not ends it. I
v. Spring Ctr., Inc , 988 .W.2d 428, 432 33 (Tex. App. Houston 4th Dist.] 1999, no pet.),
the Court of Appeals noted that:
[W]e must review the evidence in the light most favorable to the
respondent against whom the no evidence summary judgment
was rendered, disregarding all contrary evidence and
See Merrell Dow Pharmaceuticals, Inc. v. Havner
S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 (
Stated another way, a no evidence summary judgment is
improperly granted if the respondent counters with more than
a scintilla of probative evidence to raise a genuine issue of
material fact. See 166a(i); see Havner, 953 S.W.2d
at 711; Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex. App. Houston
th Dist.] 1998, no pet.); Jackson v. Fiesta Mart, Inc , 979
S.W.2d 68, 70 71 (Tex. App. Austin 1998, no pet.) . . . More
than a scintilla of evidence exists when the evidence rises to a
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
level that would enable reasonable and fair minded people to
differ in their conclusions. Havner, 953 S.W.2d at 711 . . . [A] fact
material only if it affects the outcome of the suit under the
governing law . . . A material fact is if the evidence is
such that a reasonable jury could find the fact in favor of the
nonmoving party.
Alashmawi v. IBP, Inc. App. Amarillo 2001,
), the Court of Appeals explained:
Where a motion is presented under Rule 166a(i) asserting there
is no evidence of one or more essential elements of the non
movant s claims upon which the non movant would have the
burden of proof at trial, the movant does not bear the burden of
establishing each element of its own claim or defense as under
subparagraph (a) or (b). Rather, although the non moving party
is not required to marshal its proof, it must present evidence
that raises a genuine fact issue on the challenged elements. See
166a, Notes and Comments; Roth v. FFP Operating
Partners, 994 S.W.2d 190, 195 (Tex. App. Amarillo 1999, pet.
Because a no evidence summary judgment is essentially a
pretrial directed verdict, we apply the same legal sufficiency
standard in reviewing a no evidence summary judgment as we
apply in reviewing a directed verdict. Jackson v. Fiesta Mart, Inc
979 S.W.2d 68, 70 (Tex. App. Austin 1998, no pet.). Thus, our
task as an appellate court is to ascertain whether the non
movant produced any evidence of probative force to raise a fact
issue on the material questions presented. We consider all
the evidence in the light most favorable to the party against
whom the no evidence summary judgment was rendered,
disregarding all contrary evidence and inferences. Merrell Dow
Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex.
cert. denied, 523 U S. 1119 (1998). A no evidence summary
judgment is improperly granted if the non movant presents
more than a scintilla of probative evidence to raise a genuine
issue of material fact. Fiesta Mart, Inc., 979 S.W.2d at 70
More than a scintilla of evidence exists when the evidence
to a level that would enable reasonable and fair minded people
to differ in their conclusions. Havner
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
Alashmawi, at 170. In other words, it is not necessary for Plaintiffs to satisfy efendants’
notions of what degree of evidence they find sufficient to establish their liability. Rather, it is
only necessary for Plaintiffs to present more than a scintilla of evidence in support f their
prima facie claims, a featherweight burden they more than meet in this Response See also In
re Estate of Swanson, 130 S.W.3d 144, 148 (Tex. App. El Paso 2003, no pet.) (“[P]res
some evidence, certainly more than a scintilla . . . defeats the Rule 166a(i) motion”);
Henderson v. Nursing Services/Contract Mgmt. Services, Inc., 14 CV, 2000 WL
280324, *4 (Tex. App. Houston [ 4th Dist.] Mar. 16, 2000, no pet.); Menchaca v. Harris
County, 14 CV, 2002 WL 1163015, *2 (Tex. App. Houston [14th Dist.] May 30,
2002, no pet.); Anchor Paving Co., Inc. v. Wood Elec. Services, Inc., 14 CV, 2004 WL
2186775, *3 (Tex. App. Houston [14th Dist.] Sept. 30, 2004, no pet); Heard v. Monsanto C
CV, 2008 WL 1777989, *3 (Tex. App. Amarillo, Apr. 18, 2008, no pet.) (“A no
evidence summary judgment should not be granted if the respondent counters with more
than a scintilla of probative evidence raising a genuine issue of material fact”); Torres v.
Saylor Marine, Inc , 13 CV, 2011 WL 3855733, *2 (Tex. App. rpus Christi Aug.
31, 2011, no pet.) (“A no evidence summary judgment is improperly granted if the non
movant presents more than a scintilla of probative evidence to raise a genuine issue of
material fact.”).
More recently, in Barzoukas v. Found. Design, Ltd , 363 S.W.3d 829, 832 (Tex.
App. Houston [14th Dist.] 2012, pet. denied), the Court of Appeals explained that:
In a no evidence motion for summary judgment, the movant
must specifically identify the elements for which there is no
Walker v. Thomasson Lumber Co., 203 S.W.3d 470,
74 (Tex. App. Houston [14th Dist.] 2006, no pet). The trial
court must grant the motion unless the respondent presents
evidence raising a genuine issue of material fact.
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
166a(i). However, the respondent is “not required to marshal its
proof; its response need only point out evidence that raises a
fact issue on the challenged elements.” Hamilton v. Wilson, 249
S.W.3d 425, 426 (Tex. 2008) (quoting 166a(i) cmt.
We review a summary judgment de nov and must take as true
all evidence favorable to the nonmovant and draw every
reasonable inference and resolve all doubts in favor of the
nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. Mendoza v. Fiesta Mart, , 276 S.W.3d 653,
655 (Tex. App. Houston 4th Dist.] 2008, pet. denied).
This case presents as an appeal from an order granting a no
evidence motion for summary judgment. Texas Rule of Civil
Procedure 166a( ) authorizes summary judgment when there
is no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of
proof at trial. 66a(i). Such a motion must state
the elements as to which there is no evidence the trial court
must grant the motion unless the respondent produces
summary judgment evidence raising a genuine issue of material
fact.
Significant hammering and bending is required to fit [motion]
within Rule 66a(i). Determining whether the moving party is
entitled to judgment as a matter of law on the issues expressly
set out in the motion is an inquiry under Rule 166a(c)
traditional summary judgment standard, with its attendant
burdens on the movant. See 166a(c); see also KPMG
Peat Marwick v. Harrison Cnty. Hous. Fin. Corp , 988 S.W.2d 746,
748 (Te l999).
Barzoukas, at 832, 833. Thus, once this Court considers the evidence of Defendants’ liability
in this case, as summarized , it should be fully satisfied that the Motio lack
vitality whatever.
Indeed, in Kroger Co. v. Persley, 261 S.W 3d 316, 318 19 (Te App. Houston 1st Dist.] 2008, no pet.), the
Court of Appeals made clear that:
A no evidence issue will be sustained when the record discloses that: (1)
there is a complete absence of evidence of a vital fact, (2) the court is barred
rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact, (3) the evidence offered to prove a vital fact is no more
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
At most, the Motion and this Response simply confirm hat Plaintiffs and
Defendants see this case very differently, which is precisely hat a jury trial of the case on
its merits is procedurally designed and intended to resolve, as onflicting and ambiguous
evidence gives rise to genuine issue of fact Randall v. Dallas Power & Light Co 52 S.W.2d
4, 5 (Tex. 1998) (per curiam) Parker v. Yen, 823 .W.2d 359, 365 (Tex. App. Dallas 1991,
no writ) ee also Ellert v. Lutz, 930 S.W.2d 152, 155 App. Dallas 1996, no writ); Frazin
v. Grunning CV, 2002 WL 84457, *1 (Tex. App. Dallas, Jan. 23, 2002, pet.
It is fundamental that a ummary judgment is not proper if the
evidence raises issues of fact to be determined by the ourt or
jury. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 . . . [I]n summary
judgment roceedings, courts are not to weigh the evidence or
determine its credibility. It is the court uty to determine if
there are any fact issues to be tried. Gulbenkian v. Penn, 151 Tex.
412, 252
White v. Coope , 415 S.W.2d 246, 250 (Tex. App. Amarillo 1967, no writ).
“‘summary judgment is to be applied with caution and should not be granted where there
doubt as to the facts.’ In re Price s Estate, 375 S.W.2d 900, 904 (Tex. [(superseded
other grounds in Stiles v. Resolution Trust Corp , 867 S.W.2d 24, 26 (Tex. 993))],” Kiser v.
emco Indus , Inc., 536 S.W.2d 585, 590 (Tex. App. Amarillo 1976, no writ). Further, in
than a mere scintilla, or (4) the evidence conclusively establishes the
opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711
(Tex. 1997). If there is more than a scintilla of evidence to support the
finding, the no evidence challenge fails Stafford v. Stafford, 726 S.W.2d 14,
16 (Tex. 987).
Id. at 318 19. Here, there are no completely absent vital facts as the evidence Plaintiffs herein proffer is far
more than a scintilla and the Motion present no “conclusive” proffer of contrary facts, only Defendants’
summary presentation of the alleged unsupported claim elements they feel are best supported by respective,
highly truncated versions of events and facts herein at issue. That is not the proper basis upon which to seek
summary disposition it is only the classic grist for jury trial.
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
an Lawson & Associates v. Miller, 742 S.W.2d 528, 530 (Tex. App. Fort Worth 1987, no
writ), he court held that: “Summary judgment should never be granted when the issues are
inherently hose for a jury or trial judge, as in cases involving intent, reliance, reasonable
care, uncertainty nd the like. Kalb v. Texas Emp. Ins. Ass’n, 585 S.W.2d 870, 873 (Tex.
App. Texarkana 979, writ ref d n.r e.).” at 530.
Summary Judgment Evidence
To provide more than a scintilla of evidence in support of the elements of their
causes of action contained in the Third Amended Petition (including (a) violations of the
DTPA; (b) negligence; (c) negligent misrepresentation; (d) gross negligence; (e) fraud; (f)
breach of warranty of habitability; (g) fraud by non disclosure; (h) private nuisance; and (i)
breach of implied warranty of good and workmanlike performance of services), Plaintiffs
offer the following evidence and provide notice of their intention to rely on the following
unfiled discovery responses, pursuant to Texas Rule of Civil Procedure 166a(d):
Affidavit of Jason Wagner attached as Exhibit B, along with attachments marked as
Exhibit 1 and Exhibit 2 thereto
Affidavit Melinda Brewer, attached as , along with attachments marked as
Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6, Exhibit 7, Exhibit 8, and
Exhibit 9 thereto
Affidavit Wayne Brewer, attached as Exhibit
excerpts and exhibits from the Oral and Videotaped Deposition of Florencio
Guerra, attached as Exhibit
Defendants also argue that no evidence exists to support two elements of Plaintiffs’ “piercing the corporate
veil” allegations.
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
Selected excerpts and exhibits from the Oral and Videotaped Deposition of Luis
Villalba, attached as Exhibit
Unsworn Declaration of James Drebelbis A.I.A., attached as Exhibit , along with
attachments marked as Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6,
Exhibit 7, Exhibit 8, and Exhibit 9 thereto;
Affidavit of Scott McCaslin attached as Exhibit , along with attachments marked as
it 1, Exhibit 2, and Exhibit 3 thereto
Affidavit of Todd Rottholz, MAI attached as Exhibit , along with attachments marked
as Exhibit 1, Exhibit 2, and Exhibit 3 thereto
Affidavit Shahed Manzur, Ph.D., P.E. attached as Exhibit , along with attachments
marked as Exhibit 1 and Exhibit 2 thereto
Selected references to business records from Montgomery County, Texas, as
authenticated and rendered admissible by the affidavit of the custodian of records,
Phil Jones, identified by Brewer 00401 Brewer 410, and attached as Exhibit
Selected references to business records from Montgomery County Environmental
Services, as authenticated and rendered admissible by the affidavit of the custodian
of records, Terri Dashiell, identified by Brewer Brewer , and attached
as Exhibit
Selected references to business records from Montgomery County Engineering, as
authenticated and rendered admissible by the affidavit of the custodian of records,
Dan Wilds, identified by Brewer 00438 Brewer 00507, and attached as Exhibit
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
elected references to business records from San Jacinto River Authority, as
authenticated and rendered admissible by the affidavit of the custodian of records,
Jody Chaney, identified by Brewer Brewer , and attached as Exhibit
elected references to business records from the City of Conroe, as authenticated and
rendered admissible by the affidavit of the custodian of records, Gary A. Scott,
identified by Brewer Brewer attached as Exhibit
Selected references to business records from Montgomery County Utility District No.
, as authenticated and rendered admissible by the affidavit of the custodian of
records, Patricia Harris Scott, identified by Brewer Brewer 478 and
Brewer 002483 Brewer 02680 attached as Exhibit
More Than a Scintilla of Evidence Exists in Support of
Plaintiffs’ Corporate Veil Piercing Allegations
As an initial matter, Defendants misstate the factors to be considered when
determining whether to pierce the corporate veil. Defendants incorrectly claim that, to
establish veil piercing, there must be an express agreement by a shareholder to pay
e debts or an actual fraud on Plaintiffs for the direct personal benefit of the
shareholder.
lter ego liability permits laintiff to pierce an entity corporate veil and
hold the entity s shareholders, directors, and officers individually liable for the entity
obligations. Castleberry v. Branscum, 721 S.W.2d 270, 271 72 (Tex. 1986); see Dodd v. Savino
426 S.W.3d 275, 291 92 (Tex. App. Houston [14th Dist.] 2014, no pet.) (examining alter ego
liability in appeal from no answer default judgment). Courts must disregard the corporate
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
fiction when the corporate form has been used as part of a basically unfair device to achieve
an inequitable result. Castleberry
Alter ego veil piercing is appropriate ( ) where a corporation is organized and
operated as a mere tool or business conduit of another, ( ) there is such unity between
corporation and individual that the separateness of the corporation has ceased, and (
holding only the corporation or individual liable would result in injustice. See Castleberry
721 S.W.2d at 271 see also SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444,
55 (Tex. 2008); Goldstein v. Mortenson, 113 S.W.3d 769, 781 (Tex. App. Austin 2003,
no pet.). Alter ego is shown from the total dealings of the corporation and the individual,
including the degree to which corporate formalities have been followed and corporate and
individual property have been kept separately; the amount of financial interest, ownership,
and control the individual maintains over the corporation; and whether the corporation has
been used for personal purposes. Castleberry, 721 S.W.2d at 272; Goldstein, 113 S.W.3d at
vidence that will support an alter ego finding includes ( ) the payment of
leged corporate debts with personal checks or other commingling of funds, (
representations that the individual will financially back the corporation, ( ) the diversion of
company profits to the individual for the individual's personal use, ( ) inadequat
capitalization, and ( ) any other failure to keep corporate and personal assets separate.
Burchinal v. PJ Trailers Seminole Mgmt. Co., LLC, 372 S.W.3d 200, 218 (Tex. App. Texarkana
2012, no pet.) (citing Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 229 (Tex. 1990)).
underlying policy that piercing the corporate veil is necessary to prevent a plaintiff from
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
falling victim to a basically unfair device. Feigin, 1998 WL 375458, at *6 (citing Lucas, 696
75 ).
light of this case law, it is unclear how Plaintiffs can respond to Defendants’
incorrect citation to the elements of veil piercing. lack of specificity defect
objectionable, renders the Motion insufficient and merits its denial. See generally Timpte
Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Judge David Hittner Lynne
Liberato, Summary Judgments in Texas 409, 416
t is also unclear which Defendants claim entitlement to summary judgment
on this basis he principles described above suggest that Defendant Florencio Guerra
(“Guerra”) should be the only beneficiary of a no evidence summary judgment on veil
piercing. Defendants’ lack of specificity here is worthy of Plaintiffs’ objection and should
result in the denial of the Motion on the basis of its insufficiency under Rule 166a(i). Timpte
Industries, 286 S.W.3d at 310; Hittner & Liberato at 416.
And, of course, Defendants’ wholesale refusal to comply with the Order and to
supplement their discovery on areas where the production of documents would allow for a
fulsome response to the challenged element mandates denial of the Motion. See supra, ¶¶ 3
Notwithstanding Defendants’ discovery abuse, Plaintiffs are able to present
they developed over the course of this litigation, which illustrates how the three
Defendants failed to maintain corporate formalities generally, how Guerra treated Gicor and
Memo as unified which removed the separateness among Defendants, how Gicor and Memo
were treated interchangeably during the development and construction at Bellago, and how
Gicor and Memo were organized, maintained and operated as tool of Guerra.
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
Guerra is the president of Gicor; the other officers of Gicor are Guerra’s
children. See Exhibit E, 9:8 19. Gicor only has four full time employees, one of which is
Guerra’s son. See Exhibit E, 25; 10:1. Guerra is the only member of Memo Memo has n
employees. See Exhibit E, 9. Guerra is the president and managing member of Memo.
See 2, DEFENDANTS 000038 000043, DEFENDANTS 000175 000176; Exhibit
25; 12:1; 24:24 25; 25:1 owns all of the stock of Memo. See Exhibit E, 21:25;
Both Gicor and Memo are entities under a holding company called GAM Enterprises,
of which Guerra is the president and his family members are the other officers. See
25; 11:1
Gicor and Memo operate out of the same business address. See Exhibit C, ¶ 4
Exhibit D, ¶ 4; Exhibit E, ; 30:1 Gicor and Memo have the same telephone number.
See Exhibit E, The financial books of Gicor and Memo are not kept or maintained
separately. See Exhibit E, And, while Defendants recently produced minutes and
waivers of board meetings for both Gicor and Memo over the past twelve years, the
authenticity and veracity have to be questioned. A cursory examination shows that the same
blue ink was used by Guerra to sign each and every document. The formatting for each
document was identical. The documents themselves show no wear and tear even though
some are allegedly twelve years old See Exhibit B 2, DEFENDANTS 000451 When
these documents are compared with others of similar vintage, it becomes clear that the
provenance of the minutes and board meeting waivers is highly doubtful. See Exhibit B
DEFENDANTS 000036 000037, DEFENDANTS 000053, DEFENDANTS 000056,
DEFENDANTS 000059, DEFENDANTS 000175 0000176, DEFENDANTS 000248,
DEFENDANTS 000287, DEFENDANTS 000326, DEFENDANTS 000365, DEFENDANTS
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
000405, DEFENDANTS 000445. questionable document production further raises a
question of efendants’ compliance with the corporate formalities, particularly if these
documents were not generated until after this litigation commenced
All three efendants consistently failed to keep their identities separate when
dealing with members of the public, including when signing government documents under
penalty of perjury. On permit applications, Guerra identified himself as the owner of some of
the townhome lots in Building 5 which were to be constructed in 2016 and 2017, while
simultaneously identifying Gicor as the owner of other townhome lots in Building 5. See
2, DEFENDANTS 000018, DEFENDANTS 000126 000132, DEFENDANTS 000142;
O, Brewer 00630 00631, Brewer 00638, Brewer 00643, Brewer 00645, Brewer
00647, Brewer 00651, Brewer 00653. Guerra personally applied for permits from
Montgomery County for the construction of townhomes in Building 5 and indicated that
Memo was the owner. See 2, DEFENDANTS 000139 000140; Exhibit K, Brewer
00404; Exhibit L, Brewer 00430 431; Exhibit M, Brewer 00480 00481; Exhibit O,
Brewer 00783.
Gicor was identified as the owner of townhouse units in Building 5 when
permits were sought for electricity. See Exhibit O, Brewer 0 In communications with
the San Jacinto River Authority regarding Bellago Guerra and Gicor (not Memo) were
identified, interchangeably, as the developer. See Exhibit N, Brewer 00 Brewer
Brewer 00 Brewer 00 Even in communications the Bellago Community
Building 5 is the building where Plaintiffs’ Townhome is located, along with six others. It is situated on the
east side of Bellago and has a small backyard, which abuts a slope and the eastern property line.
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
mprovement ssociation meetings, Guerra personally was identified as the developer. See
2, DEFENDANTS 000165.
When Montgomery County was ready to sue Defendants for their failure to
comply with the required drainage plan for Bellago, the County Attorney issued t
correspondence to Gicor, Guerra, and Memo. See 2, DEFENDANTS 000027; Exhibit
Brewer
Montgomery County Utility District No. 4, the entity that issued utility services
to Bellago, used Guerra and interchangeably See Exhibit P, Brewer 0
Brewer 0
Guerra was identified as the owner of the properties at issue, including by his
own employee Luis Villalba (“Villalba”), in records maintained by the City of Conroe. See
Exhibit O, Brewer 00 Brewer 00 Brewer 00 Brewer 01 Brewer
, Brewer 0
In their dealings with all three Defendants, it was never made clear to Plaintiffs
that there was a separation among them. See Exhibit C, ¶ 5; Exhibit D, ¶ 5. Indeed, Guerra
used personal pronouns in his meeting with Plaintiffs at the shared offices of Gicor and
Memo, which led Plaintiffs to believe that he was speaking for himself, as well as Gicor and
Memo. See ; Exhibit D
For these reasons, and based on this evidence, the Motion should be denied.
More Than a Scintilla of Evidence Exists in Support of
Plaintiffs’ DTPA Causes of Action
In connection with Plaintiffs’ DTPA claims, Defendants challenge the following
elements: (a) Plaintiffs are consumers; (b) Defendants can be sued under the DTPA; (c)
Defendants committed a false, misleading, or deceptive act or practice that is specifically
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
enumerated in the “laundry list” and that was relied on by Plaintiffs to their detriment; (d)
Defendants committed a breach of an express or implied warranty; (e) Defendants
committed an unconscionable action or course of action; (f) Defendants used or employed
an act or practice in violation of Chapter 541 of the Texas Insurance Code; (g) efendants
violated one of the “tie in” consumer statutes; (h) Defendants’ actions were a producing
cause of Plaintiffs’ damages. See Motion, ¶
Section 17.45 of the Texas Business and Commerce Code defines “consumer.”
ODE § 17.45(4). Specifically, a “consumer” is an individual who seeks or
acquires by purchase or lease, any goods or services. Plaintiffs were individuals who
ought the purchase of a townhome. See Exhibit C, ¶¶ 2, 4 ; Exhibit D, ¶¶ 2, 4 ; Exhibit E,
25; 50:1 25; 51:1 25; 52:1 7; Exhibit F, 45:22 25; 46:1 25; 47:1
Section 17.50(a)(1) permits for Plaintiffs to bring a claim against any “person”
ho uses or employs false, misleading, or deceptive acts or practices. ODE
17.50(a)(1), (3). A “person” is an individual, partnership, corporation, association, or other
group, however organized. ODE § 17.45(3). Defendant Guerra is a person,
Defendant Gicor is a corporation, and Defendant Memo is another group organized as an LLC.
See Exhibit B 2, DEFENDANTS 000038 DEFENDANTS 000172, DEFENDANTS
000207, DEFENDANTS 000209, DEFENDANTS 000451 DEFENDANTS 000600
Exhibit E, 9:8 25; 10:9; 11:17 25; 12:1; 21:25; 22:1 25; 24:24 25; 25:1
Because Plaintiffs do not allege a violation of the Texas Insurance Code or a tie in consumer statute, those no
evidence challenges are inapplicable to this case. Indeed, inclusion of these elements make the Motion
conclusory and general, which is violative of Texas Rule of Civil Procedure 166a(i)’s mandate and renders the
otion itself legally insufficient, to which Plaintiffs object and seek outright denial of the Motion. See Timpte
Industries supra
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
Defendants claim that no evidence exists to support that they committed a
false, misleading, or deceptive act or practice enumerated in the “laundry list.” Because
Defendants fail to specify which enumerated “laundry list” item is challenged, their
ence motion on all “laundry list” items is legally insufficient Timpte Industries, Inc.
Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App. San Antonio 2000, pet.
denied). As such, Plaintiffs object and Defendants’ Motion should be denied.
Notwithstanding that fact, Plaintiffs will present evidence in support of the six
items on the “laundry list” cited in Plaintiffs’ Third Amended Petition
Guerra, acting individually or in his capacity as agent and representative of
Gicor and Memo, reported to Plaintiffs in their pre purchase meeting about the identity of
the designer, developer, and builder of Bellago and the construction of the building in which
their Townhome sat, when the truth ended up showing that the work was not done by a
qualified architect, engineer, or developer, and that the construction of the work was done
improperly and without sufficient supervision or compliance with codes and industry best
practices See 2, DEFENDANTS 000023 000024, DEFENDANTS 000122
, ¶¶ 4 15, 17, 19; Exhibit D, ¶¶ 4 13, 15, 17; Exhibit E, 49:10 25; 50:1 25; 51:1
; Exhibit G, ¶¶ 7 8, 10 14; Exhibit G 2; Exhibit G 3; Exhibit H, ¶¶ 12 15; Exhibit H
Exhibit J, ¶¶ 8 14; Exhibit J
This meeting was around the time that Defendants were marketing Bellago,
through signage and the website. See Exhibit E, 50:4 15. The meeting was the shared offices
Due to similarities of allegations and factual underpinnings, some evidence and argument cited herein will be
duplicative. Plaintiffs request the Court’s indulgence for any repetitive argument and would further point this
Court to the entirety of the summary judgment evidence submitted, as set forth in Exhibits C P, as the most
comprehensive presentment of evidence in support of each of the elements of the causes of action asserted by
Plaintiffs and challenged by Defendants.
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
of Gicor and Memo. See xhibit C, ¶ 4; Exhibit D, ¶ 4; Exhibit E, 50:16 22. During this meeting,
Guerra and Plaintiffs discussed what the townhouses in Building 5 include , and some
Plaintiffs wanted to do. See C, ¶¶ 4 5; Exhibit D, ¶¶ 4 5; Exhibit E, 50:23
25; 52:1 Guerra did not tell Plaintiffs about the issues with the drain plan that had
been encountered with Montgomery ounty in 2011 when they were interested in buying a
new unit, or about the concerns that had been raised by April Villas at any point prior to that
meeting with them. See Exhibit C, ¶¶ 7 ; Exhibit D, ¶¶ 7 ; Exhibit E, 220:7 20. Villalba was
also present at this meeting and thought that floor plans and elevations were shown to
Plaintiffs. See Exhibit F, 45:22 25; 46:1 25; 47:1 21. While Guerra not recall if he talked
to Plaintiffs about the community of Bellago, access to Lake Conroe, or if he provided them
with any plans or drawings of what the new unit would look like, Plaintiffs confirmed that
he discussed those and other options. See ; Exhibit D
Bellago was within the Extraterritorial Jurisdiction (“ETJ”) of the City of
Conroe, a fact which was known to Defendants. See 2, DEFENDANTS 000015
000016, DEFENDANTS 000165; Exhibit E 48:9 14; Exhibit F, 47:22 25; 48:1 9. Indeed, a
long as Gicor had en constructing at Bellago, Bellago has either been in Conroe’s ETJ o
the city limits of Conroe. See Exhibit F 47:22 25; 48:1 9. When Defendants initiated
construction on the Townhome, they had never built in the City of Conroe. See Exhibit E,
; 49:1. In the initial drawings prepared for the development of Bellago on behalf of
Memo, reference was made to the fact that the Planning and Zoning Commission for the City
of Conroe had provided a certificate of approval. See 2, DEFENDANTS 000
000016, DEFENDANTS 000165; Exhibit E, 57:9 25; 58:1 25; 59:1 25; 60:1 25; 61:1
Guerra Exhibit No. 4; Exhibit N, Brewer 00577. Despite this foreknowledge, Defendants
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
failed to follow the codes applicable to the City of Conroe and failed to have their construction
inspected to ensure compliance. See Exhibit H, ¶ 13; Exhibit H
Villalba was the superintendent during construction. See Exhibit E, 194:10
Villalba would occasionally report to Guerra on the progress of construction, but frequentl
these reports were not in writing. See Exhibit E, 194:10 25; 195:1 Villalba failed to
familiarize himself with the applicable codes and did not have proper inspections. See
H, ¶ 14; Exhibit H Even though Villalba was not a registered architect in Texas and lacked
an engineering degree, he prepared drawings and diagrams that were submitted for use in
the permitting and construction process, including floor and elevation plans. See Exhibit F,
25; 9:1 25; 10:1 8; 32:13 25; 33:1 Guerra Exhibit No. 15; Exhibit K, Brewer 00408.
In fact, in January 2016, Villalba submitted drawings to the City of Conroe for the design of
the connection between the Townhome and adjacent townhouses to the south, in the very
same building. See , Brewer 01837
In actuality, the townhouses were built in accordance with “architectural”
designs prepared by Wanda Fick, self identified as a “building designer” but certainly not an
architect, and foundation designs from Keelan Engineering sed on soil conditions that
existed prior to the use of fill soil and were not confirmed after fill soil was added See
2, DEFENDANTS 000024; DEFENDANTS 000125; Exhibit F, 11:23
20; 17:13 20; 41:15 25; 42:1
Defendants’ failure to disclose the information concerning the construction of
Building 5, which they knew at the time of their meeting with Plaintiffs and in close proximity
to their purchase of the Townhome, was intended to induce Plaintiffs into a purchase
transaction of a townhome unit in Building 5. See Exhibit C, ¶¶ 4 ; Exhibit D, ¶¶ 4 . In June,
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
July, and August 2016, drainage issues at Bellago were being addressed, which Defendants
failed to disclose to Plaintiffs had reported and, by implication, had represented to have been
resolved prior to that time. See Exhibit M, Brewer 00496 Exhibit O, Brewer 00728
00735, Brewer 00759 00832, Brewer 00843 00846, Brewer 00996 00997, Brewer 01304
01310, Brewer 01329 01338, Brewer 01390 01393, Brewer 01749 Defendants did
not disclose this information; had any of this information been disclosed by Defendants to
Plaintiffs, Plaintiffs would not have purchased the Townhome. See Exhibit C, ¶¶ ; Exhibit
, ¶¶ 6 This evidence supports Plaintiffs’ allegation of violation 17.46(b)(2)
and 17.46(b)(24) of the DTPA.
Similarly, Guerra, acting individually or in his capacity as agent and
representative of Gicor and Memo, represented to Plaintiffs in their pre purchase meeting
that the building in which their Townhome sat was constructed properly, correctly, and in
accordance with industry standards. See Exhibit C, ¶¶ 4 15, 17, 19; Exhibit D, ¶¶ 4 13, 15,
; Exhibit E, 49:10 25; 50:1 25; 51:1 25; 52:1 In fact, the work was not done by a
qualified architect, engineer, or developer, and that the construction of the work was done
improperly, incorrectly, and not in accordance with industry standards.
DEFENDANTS 000122 000125; Exhibit E, 48:9 14, 23 25; 49:1; 50:4 25; 51:1 25; 52:1
20; 57:9 25; 58:1 25; 59:1 25; 60:1 25; 61:1 10; 194:10 25; 195:1 8; Guerra Exhibit
Nos. 4, 15; Exhibit F, 8:6 25; 9:1 25; 10:1 25; 12:1 20; 17:13 25; 33:1
25; 42:1 25; 46:1 25; 47:1 25; 48:1 Exhibit H, ¶¶ 12 15; Exhibit H
Exhibit K, Brewer 00408; Exhibit N, Brewer 00577; Exhibit O, Brewer 01837
efendants’ failure to disclose this information concerning the construction of Building 5,
which they knew at the time of their meeting with Plaintiffs and in close proximity to their
Plaintiffs’ Response to Defendants’
Evidence Motion for Summary Judgment Page
purchase of the Townhome, was intended to induce Plaintiffs into a purchase transaction
a townhome unit in Building 5. See Exhibit C, ¶¶ 4 ; Exhibit D, ¶¶ 4 Further, in June, July,
and August 2016, drainage issues at Bellago were being addressed, which Defendants failed
to disclose to Plaintiffs and had instead reported and, by implication, had represented to
have been resolved prior to that time. See Exhibit M, Brewer 00496 Exhibit O, Brewer
00735, Brewer 00759 00832, Brewer 00843 00846, Brewer 00996 00
Preview
CAUSE NO. 17 WAYNE BREWER AND MELINDA BREWER IN THE DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS GICOR, INC., MEMO EXPRESS, L.L.C., AND FLORENCIO GUERRA A/K/A F.I. GUERRA JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANTS’ EVIDENCE MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: WAYNE BREWER MELINDA BREWER, Plaintiffs, file this their Response to Defendants’ NoEvidence Motion for Summary Judgment (“Motion”) and would show the Court as follows: Basis for Denial of Motion Plaintiffs present herein competent, voluminous, and persuasive evidence establishing that Defendants misrepresented the development and construction of a townhome community on Lake Conroe, including their compliance with approved and required drainage plans, the use of improper fill soil, the failure to compact fill soil properly, the creation of a slope of fill soil without engineering approval, modification of the drainage plan, or a retaining wall to avoid erosion and collapse of the sloped fill, the professional nature of the design and construction of the Townhome purchased by them, improper drainage of surface water which led to erosion of soil under the Townhome’s foundation, and failure to comply with building and other codes, industry standards, an proper inspections of the construction. Plaintiffs justifiably relied on Defendants’ statements about these conditions, to their detriment. These actions support all of Plaintiffs’ claims for DTPA violations, fraud, fraud by non and negligent misrepresentation. The enumerated failures by Defendants also support Plaintiffs’ claims for negligence, negligence per se, nuisance, and breach of implied warranties. Plaintiffs suffered, and will suffer, actual monetary losses and diminution of value. ummary judgment is not warranted and the Motion should be denied. Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page Introduction This lawsuit arises out of Defendants’ actions in connection with the development of the Bellago townhome community on Lake Conroe. Defendants developed the land, were responsible for ensuring proper drainage and construction. They repeatedly failed to satisfy those duties. Plaintiffs purchased a townhome which has suffered will suffer structural damage, if repairs are not made, as well as diminution of value Plaintiffs alleged various causes of action against Defendants to redress these damages and injuries. By a Motion for Summary Judgment under Texas Rule of Civil Procedure 166a(i) (“Motion”), Defendants challenge every single element every single cause f action. For the reasons stated herein, and in light of the attached voluminous and ample competent summary judgment evidence in support of each element, the Motion must be denied and this case must go to trial. Defendants’ Refusal to Comply with This Court’s Order and to Respond to Outstanding Discovery Requests Mandate Denial of the Motion Texas Rule of Civil Procedure 166a(g) states that, if a party is unable to present facts essential to justify its opposition to a motion for summary judgment, the Court may “refuse the application for judgment.” 166a(g). As established by the affidavit testimony of Plaintiffs’ counsel and arguments below, Defendants’ refusal to comply with this Court’s Order and to respond to outstanding discovery requests has hampered Plaintiffs’ ability to secure all of the available competent summary judgment evidence that may be to defeat the Motion. To the extent that this Court determines that Plaintiffs failed to present more than a scintilla of evidence in support of any one of the challenged elements of their cause of action, Plaintiffs would invoke the remedies of Rule 166a(g) and seek outright denial of the Motion due to Defendants’ continued intransigence in the following three areas Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page First, as this Court is aware it issued a comprehensive Order Defendants’ discovery responses November 12, 2020. Except for one discovery request, this Order overruled Defendants’ objections and required full compliance with the outstanding requests. See Exhibit A. That Order required compliance by November 30, 2020. While Defendants served supplemental discovery responses on that day, they failed to comply fully with the Order. Plaintiffs’ counsel sent correspondence on December 11, 2020 outlining the remaining deficiencies and seeking full supplementation by December 21, See . Despite having yet another attempt to comply, Defendants still have not provided everything that this Court ordered them to provide, including responsive documents in connection with the Third Set of Requests for Production to Defendants Gicor, Inc. (“Gicor”) and Memo Express, LLC (“Memo”). See . While this refusal to obey a Court order will be the subject of a separate Motion for Sanctions and/or Contempt, it is appropriately raised under the provisions of Rule 166a(g). The documents sought in the Third Set of Requests for Production relate directly to the interconnectedness among Defendants, which is being challenged by Defendants in the Motion. See infra at ¶¶ . For this reason, Plaintiffs urge this Court to deny the Motion under Rule 166a(g) for Defendants’ failure to comply fully with the November 12, 2020 Order. Second, Defendants failed and refused to respond properly and completely to discovery requests which were drafted after the depositions of their corporate representatives. See . During those depositions, Defendants’ representatives confirmed under oath that Defendants had specific relevant and material documents in th actual and/or constructive possession, custody, and control. See . Plaintiffs prepared specific requests for production seeking the documents referenced during the Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page depositions. Despite testifying that responsive documents did exist, Defendants failed to respond to Requests Nos. 3, 6, 8, 9, 10, 12, 13, 14 15, 16, 17, 26, 27, 29, 32, 34, 37, 39, 43, 48, 49, 50, 51, 52, 53, 54 and 55 by producing the documents that Defendants corporate representatives’ deposition testimony indicated existed and were available to Defendants. Those documents relate to the interconnectedness among Defendants, the development and construction of Bellago, and the construction of Plaintiffs’ townhome. Plaintiffs’ counsel sent correspondence on December 11, 2020 outlining these deficiencies and seeking full supplementation by December 21, 2020. See . No such supplementation was provided. While this discovery abuse will be the subject of a separate Motion to Overrule Objections, to Compel Discovery Responses, and for Sanctions and/or Contempt, it is appropriately raised under the provisions of Rule 166a(g). For this reason, Plaintiffs urge this Court to deny the Motion under Rule 166a(g) for failure to respond fully to outstanding Third, with respect to documents that Defendants did produce in response to the Fourth Set of Requests for Production, they failed in their responses to specify the Bates numbers to which each document was responsive. See This Court’s Order of November 12, 2020 made clear that a proper response to a request for production would require reference to Bates numbers. See Exhibit A. Plaintiffs’ counsel sought supplementation of Requests Nos. 1, 2, 4, 5, 7, 11, 18, 19, 20, 21, 22, 23, 24, 25, 28, 30, 31, 33, 35, 36, 38, 40, 41, 42, 44, 45, 46, 47, and 56 so that Defendants would either produce the responsive documents or provide specific Bates numbers to identify said documents. See . They failed to do so. While this discovery abuse will be the subject of a separate Motion to Overrule Objections, to Compel Discovery Responses, and for Sanctions and/or Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page Contempt, it is appropriately raised under the provisions of Rule 166a(g). For this reason, Plaintiffs urge this Court to deny the Motion under Rule 166a(g) for failure to respond fully to outstanding discovery. n the event that all or part of the Motion survives the request for dismissal under Rule 166a(g), Plaintiffs offer the following competent summary judgment and argument. Evidence Summary Judgment Standard Texas Rule of Civil Procedure 166a(i) reads as follows: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produce summary judgment evidence raising a genuine issue of material fact 166a(i). Rule 166a(i) begins this Court’s not ends it. I v. Spring Ctr., Inc , 988 .W.2d 428, 432 33 (Tex. App. Houston 4th Dist.] 1999, no pet.), the Court of Appeals noted that: [W]e must review the evidence in the light most favorable to the respondent against whom the no evidence summary judgment was rendered, disregarding all contrary evidence and See Merrell Dow Pharmaceuticals, Inc. v. Havner S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 ( Stated another way, a no evidence summary judgment is improperly granted if the respondent counters with more than a scintilla of probative evidence to raise a genuine issue of material fact. See 166a(i); see Havner, 953 S.W.2d at 711; Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex. App. Houston th Dist.] 1998, no pet.); Jackson v. Fiesta Mart, Inc , 979 S.W.2d 68, 70 71 (Tex. App. Austin 1998, no pet.) . . . More than a scintilla of evidence exists when the evidence rises to a Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page level that would enable reasonable and fair minded people to differ in their conclusions. Havner, 953 S.W.2d at 711 . . . [A] fact material only if it affects the outcome of the suit under the governing law . . . A material fact is if the evidence is such that a reasonable jury could find the fact in favor of the nonmoving party. Alashmawi v. IBP, Inc. App. Amarillo 2001, ), the Court of Appeals explained: Where a motion is presented under Rule 166a(i) asserting there is no evidence of one or more essential elements of the non movant s claims upon which the non movant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim or defense as under subparagraph (a) or (b). Rather, although the non moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements. See 166a, Notes and Comments; Roth v. FFP Operating Partners, 994 S.W.2d 190, 195 (Tex. App. Amarillo 1999, pet. Because a no evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no evidence summary judgment as we apply in reviewing a directed verdict. Jackson v. Fiesta Mart, Inc 979 S.W.2d 68, 70 (Tex. App. Austin 1998, no pet.). Thus, our task as an appellate court is to ascertain whether the non movant produced any evidence of probative force to raise a fact issue on the material questions presented. We consider all the evidence in the light most favorable to the party against whom the no evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex. cert. denied, 523 U S. 1119 (1998). A no evidence summary judgment is improperly granted if the non movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Fiesta Mart, Inc., 979 S.W.2d at 70 More than a scintilla of evidence exists when the evidence to a level that would enable reasonable and fair minded people to differ in their conclusions. Havner Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page Alashmawi, at 170. In other words, it is not necessary for Plaintiffs to satisfy efendants’ notions of what degree of evidence they find sufficient to establish their liability. Rather, it is only necessary for Plaintiffs to present more than a scintilla of evidence in support f their prima facie claims, a featherweight burden they more than meet in this Response See also In re Estate of Swanson, 130 S.W.3d 144, 148 (Tex. App. El Paso 2003, no pet.) (“[P]res some evidence, certainly more than a scintilla . . . defeats the Rule 166a(i) motion”); Henderson v. Nursing Services/Contract Mgmt. Services, Inc., 14 CV, 2000 WL 280324, *4 (Tex. App. Houston [ 4th Dist.] Mar. 16, 2000, no pet.); Menchaca v. Harris County, 14 CV, 2002 WL 1163015, *2 (Tex. App. Houston [14th Dist.] May 30, 2002, no pet.); Anchor Paving Co., Inc. v. Wood Elec. Services, Inc., 14 CV, 2004 WL 2186775, *3 (Tex. App. Houston [14th Dist.] Sept. 30, 2004, no pet); Heard v. Monsanto C CV, 2008 WL 1777989, *3 (Tex. App. Amarillo, Apr. 18, 2008, no pet.) (“A no evidence summary judgment should not be granted if the respondent counters with more than a scintilla of probative evidence raising a genuine issue of material fact”); Torres v. Saylor Marine, Inc , 13 CV, 2011 WL 3855733, *2 (Tex. App. rpus Christi Aug. 31, 2011, no pet.) (“A no evidence summary judgment is improperly granted if the non movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact.”). More recently, in Barzoukas v. Found. Design, Ltd , 363 S.W.3d 829, 832 (Tex. App. Houston [14th Dist.] 2012, pet. denied), the Court of Appeals explained that: In a no evidence motion for summary judgment, the movant must specifically identify the elements for which there is no Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 74 (Tex. App. Houston [14th Dist.] 2006, no pet). The trial court must grant the motion unless the respondent presents evidence raising a genuine issue of material fact. Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page 166a(i). However, the respondent is “not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (quoting 166a(i) cmt. We review a summary judgment de nov and must take as true all evidence favorable to the nonmovant and draw every reasonable inference and resolve all doubts in favor of the nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. Mendoza v. Fiesta Mart, , 276 S.W.3d 653, 655 (Tex. App. Houston 4th Dist.] 2008, pet. denied). This case presents as an appeal from an order granting a no evidence motion for summary judgment. Texas Rule of Civil Procedure 166a( ) authorizes summary judgment when there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. 66a(i). Such a motion must state the elements as to which there is no evidence the trial court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Significant hammering and bending is required to fit [motion] within Rule 66a(i). Determining whether the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion is an inquiry under Rule 166a(c) traditional summary judgment standard, with its attendant burdens on the movant. See 166a(c); see also KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp , 988 S.W.2d 746, 748 (Te l999). Barzoukas, at 832, 833. Thus, once this Court considers the evidence of Defendants’ liability in this case, as summarized , it should be fully satisfied that the Motio lack vitality whatever. Indeed, in Kroger Co. v. Persley, 261 S.W 3d 316, 318 19 (Te App. Houston 1st Dist.] 2008, no pet.), the Court of Appeals made clear that: A no evidence issue will be sustained when the record discloses that: (1) there is a complete absence of evidence of a vital fact, (2) the court is barred rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page At most, the Motion and this Response simply confirm hat Plaintiffs and Defendants see this case very differently, which is precisely hat a jury trial of the case on its merits is procedurally designed and intended to resolve, as onflicting and ambiguous evidence gives rise to genuine issue of fact Randall v. Dallas Power & Light Co 52 S.W.2d 4, 5 (Tex. 1998) (per curiam) Parker v. Yen, 823 .W.2d 359, 365 (Tex. App. Dallas 1991, no writ) ee also Ellert v. Lutz, 930 S.W.2d 152, 155 App. Dallas 1996, no writ); Frazin v. Grunning CV, 2002 WL 84457, *1 (Tex. App. Dallas, Jan. 23, 2002, pet. It is fundamental that a ummary judgment is not proper if the evidence raises issues of fact to be determined by the ourt or jury. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 . . . [I]n summary judgment roceedings, courts are not to weigh the evidence or determine its credibility. It is the court uty to determine if there are any fact issues to be tried. Gulbenkian v. Penn, 151 Tex. 412, 252 White v. Coope , 415 S.W.2d 246, 250 (Tex. App. Amarillo 1967, no writ). “‘summary judgment is to be applied with caution and should not be granted where there doubt as to the facts.’ In re Price s Estate, 375 S.W.2d 900, 904 (Tex. [(superseded other grounds in Stiles v. Resolution Trust Corp , 867 S.W.2d 24, 26 (Tex. 993))],” Kiser v. emco Indus , Inc., 536 S.W.2d 585, 590 (Tex. App. Amarillo 1976, no writ). Further, in than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 987). Id. at 318 19. Here, there are no completely absent vital facts as the evidence Plaintiffs herein proffer is far more than a scintilla and the Motion present no “conclusive” proffer of contrary facts, only Defendants’ summary presentation of the alleged unsupported claim elements they feel are best supported by respective, highly truncated versions of events and facts herein at issue. That is not the proper basis upon which to seek summary disposition it is only the classic grist for jury trial. Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page an Lawson & Associates v. Miller, 742 S.W.2d 528, 530 (Tex. App. Fort Worth 1987, no writ), he court held that: “Summary judgment should never be granted when the issues are inherently hose for a jury or trial judge, as in cases involving intent, reliance, reasonable care, uncertainty nd the like. Kalb v. Texas Emp. Ins. Ass’n, 585 S.W.2d 870, 873 (Tex. App. Texarkana 979, writ ref d n.r e.).” at 530. Summary Judgment Evidence To provide more than a scintilla of evidence in support of the elements of their causes of action contained in the Third Amended Petition (including (a) violations of the DTPA; (b) negligence; (c) negligent misrepresentation; (d) gross negligence; (e) fraud; (f) breach of warranty of habitability; (g) fraud by non disclosure; (h) private nuisance; and (i) breach of implied warranty of good and workmanlike performance of services), Plaintiffs offer the following evidence and provide notice of their intention to rely on the following unfiled discovery responses, pursuant to Texas Rule of Civil Procedure 166a(d): Affidavit of Jason Wagner attached as Exhibit B, along with attachments marked as Exhibit 1 and Exhibit 2 thereto Affidavit Melinda Brewer, attached as , along with attachments marked as Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6, Exhibit 7, Exhibit 8, and Exhibit 9 thereto Affidavit Wayne Brewer, attached as Exhibit excerpts and exhibits from the Oral and Videotaped Deposition of Florencio Guerra, attached as Exhibit Defendants also argue that no evidence exists to support two elements of Plaintiffs’ “piercing the corporate veil” allegations. Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page Selected excerpts and exhibits from the Oral and Videotaped Deposition of Luis Villalba, attached as Exhibit Unsworn Declaration of James Drebelbis A.I.A., attached as Exhibit , along with attachments marked as Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6, Exhibit 7, Exhibit 8, and Exhibit 9 thereto; Affidavit of Scott McCaslin attached as Exhibit , along with attachments marked as it 1, Exhibit 2, and Exhibit 3 thereto Affidavit of Todd Rottholz, MAI attached as Exhibit , along with attachments marked as Exhibit 1, Exhibit 2, and Exhibit 3 thereto Affidavit Shahed Manzur, Ph.D., P.E. attached as Exhibit , along with attachments marked as Exhibit 1 and Exhibit 2 thereto Selected references to business records from Montgomery County, Texas, as authenticated and rendered admissible by the affidavit of the custodian of records, Phil Jones, identified by Brewer 00401 Brewer 410, and attached as Exhibit Selected references to business records from Montgomery County Environmental Services, as authenticated and rendered admissible by the affidavit of the custodian of records, Terri Dashiell, identified by Brewer Brewer , and attached as Exhibit Selected references to business records from Montgomery County Engineering, as authenticated and rendered admissible by the affidavit of the custodian of records, Dan Wilds, identified by Brewer 00438 Brewer 00507, and attached as Exhibit Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page elected references to business records from San Jacinto River Authority, as authenticated and rendered admissible by the affidavit of the custodian of records, Jody Chaney, identified by Brewer Brewer , and attached as Exhibit elected references to business records from the City of Conroe, as authenticated and rendered admissible by the affidavit of the custodian of records, Gary A. Scott, identified by Brewer Brewer attached as Exhibit Selected references to business records from Montgomery County Utility District No. , as authenticated and rendered admissible by the affidavit of the custodian of records, Patricia Harris Scott, identified by Brewer Brewer 478 and Brewer 002483 Brewer 02680 attached as Exhibit More Than a Scintilla of Evidence Exists in Support of Plaintiffs’ Corporate Veil Piercing Allegations As an initial matter, Defendants misstate the factors to be considered when determining whether to pierce the corporate veil. Defendants incorrectly claim that, to establish veil piercing, there must be an express agreement by a shareholder to pay e debts or an actual fraud on Plaintiffs for the direct personal benefit of the shareholder. lter ego liability permits laintiff to pierce an entity corporate veil and hold the entity s shareholders, directors, and officers individually liable for the entity obligations. Castleberry v. Branscum, 721 S.W.2d 270, 271 72 (Tex. 1986); see Dodd v. Savino 426 S.W.3d 275, 291 92 (Tex. App. Houston [14th Dist.] 2014, no pet.) (examining alter ego liability in appeal from no answer default judgment). Courts must disregard the corporate Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page fiction when the corporate form has been used as part of a basically unfair device to achieve an inequitable result. Castleberry Alter ego veil piercing is appropriate ( ) where a corporation is organized and operated as a mere tool or business conduit of another, ( ) there is such unity between corporation and individual that the separateness of the corporation has ceased, and ( holding only the corporation or individual liable would result in injustice. See Castleberry 721 S.W.2d at 271 see also SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 55 (Tex. 2008); Goldstein v. Mortenson, 113 S.W.3d 769, 781 (Tex. App. Austin 2003, no pet.). Alter ego is shown from the total dealings of the corporation and the individual, including the degree to which corporate formalities have been followed and corporate and individual property have been kept separately; the amount of financial interest, ownership, and control the individual maintains over the corporation; and whether the corporation has been used for personal purposes. Castleberry, 721 S.W.2d at 272; Goldstein, 113 S.W.3d at vidence that will support an alter ego finding includes ( ) the payment of leged corporate debts with personal checks or other commingling of funds, ( representations that the individual will financially back the corporation, ( ) the diversion of company profits to the individual for the individual's personal use, ( ) inadequat capitalization, and ( ) any other failure to keep corporate and personal assets separate. Burchinal v. PJ Trailers Seminole Mgmt. Co., LLC, 372 S.W.3d 200, 218 (Tex. App. Texarkana 2012, no pet.) (citing Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 229 (Tex. 1990)). underlying policy that piercing the corporate veil is necessary to prevent a plaintiff from Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page falling victim to a basically unfair device. Feigin, 1998 WL 375458, at *6 (citing Lucas, 696 75 ). light of this case law, it is unclear how Plaintiffs can respond to Defendants’ incorrect citation to the elements of veil piercing. lack of specificity defect objectionable, renders the Motion insufficient and merits its denial. See generally Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Judge David Hittner Lynne Liberato, Summary Judgments in Texas 409, 416 t is also unclear which Defendants claim entitlement to summary judgment on this basis he principles described above suggest that Defendant Florencio Guerra (“Guerra”) should be the only beneficiary of a no evidence summary judgment on veil piercing. Defendants’ lack of specificity here is worthy of Plaintiffs’ objection and should result in the denial of the Motion on the basis of its insufficiency under Rule 166a(i). Timpte Industries, 286 S.W.3d at 310; Hittner & Liberato at 416. And, of course, Defendants’ wholesale refusal to comply with the Order and to supplement their discovery on areas where the production of documents would allow for a fulsome response to the challenged element mandates denial of the Motion. See supra, ¶¶ 3 Notwithstanding Defendants’ discovery abuse, Plaintiffs are able to present they developed over the course of this litigation, which illustrates how the three Defendants failed to maintain corporate formalities generally, how Guerra treated Gicor and Memo as unified which removed the separateness among Defendants, how Gicor and Memo were treated interchangeably during the development and construction at Bellago, and how Gicor and Memo were organized, maintained and operated as tool of Guerra. Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page Guerra is the president of Gicor; the other officers of Gicor are Guerra’s children. See Exhibit E, 9:8 19. Gicor only has four full time employees, one of which is Guerra’s son. See Exhibit E, 25; 10:1. Guerra is the only member of Memo Memo has n employees. See Exhibit E, 9. Guerra is the president and managing member of Memo. See 2, DEFENDANTS 000038 000043, DEFENDANTS 000175 000176; Exhibit 25; 12:1; 24:24 25; 25:1 owns all of the stock of Memo. See Exhibit E, 21:25; Both Gicor and Memo are entities under a holding company called GAM Enterprises, of which Guerra is the president and his family members are the other officers. See 25; 11:1 Gicor and Memo operate out of the same business address. See Exhibit C, ¶ 4 Exhibit D, ¶ 4; Exhibit E, ; 30:1 Gicor and Memo have the same telephone number. See Exhibit E, The financial books of Gicor and Memo are not kept or maintained separately. See Exhibit E, And, while Defendants recently produced minutes and waivers of board meetings for both Gicor and Memo over the past twelve years, the authenticity and veracity have to be questioned. A cursory examination shows that the same blue ink was used by Guerra to sign each and every document. The formatting for each document was identical. The documents themselves show no wear and tear even though some are allegedly twelve years old See Exhibit B 2, DEFENDANTS 000451 When these documents are compared with others of similar vintage, it becomes clear that the provenance of the minutes and board meeting waivers is highly doubtful. See Exhibit B DEFENDANTS 000036 000037, DEFENDANTS 000053, DEFENDANTS 000056, DEFENDANTS 000059, DEFENDANTS 000175 0000176, DEFENDANTS 000248, DEFENDANTS 000287, DEFENDANTS 000326, DEFENDANTS 000365, DEFENDANTS Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page 000405, DEFENDANTS 000445. questionable document production further raises a question of efendants’ compliance with the corporate formalities, particularly if these documents were not generated until after this litigation commenced All three efendants consistently failed to keep their identities separate when dealing with members of the public, including when signing government documents under penalty of perjury. On permit applications, Guerra identified himself as the owner of some of the townhome lots in Building 5 which were to be constructed in 2016 and 2017, while simultaneously identifying Gicor as the owner of other townhome lots in Building 5. See 2, DEFENDANTS 000018, DEFENDANTS 000126 000132, DEFENDANTS 000142; O, Brewer 00630 00631, Brewer 00638, Brewer 00643, Brewer 00645, Brewer 00647, Brewer 00651, Brewer 00653. Guerra personally applied for permits from Montgomery County for the construction of townhomes in Building 5 and indicated that Memo was the owner. See 2, DEFENDANTS 000139 000140; Exhibit K, Brewer 00404; Exhibit L, Brewer 00430 431; Exhibit M, Brewer 00480 00481; Exhibit O, Brewer 00783. Gicor was identified as the owner of townhouse units in Building 5 when permits were sought for electricity. See Exhibit O, Brewer 0 In communications with the San Jacinto River Authority regarding Bellago Guerra and Gicor (not Memo) were identified, interchangeably, as the developer. See Exhibit N, Brewer 00 Brewer Brewer 00 Brewer 00 Even in communications the Bellago Community Building 5 is the building where Plaintiffs’ Townhome is located, along with six others. It is situated on the east side of Bellago and has a small backyard, which abuts a slope and the eastern property line. Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page mprovement ssociation meetings, Guerra personally was identified as the developer. See 2, DEFENDANTS 000165. When Montgomery County was ready to sue Defendants for their failure to comply with the required drainage plan for Bellago, the County Attorney issued t correspondence to Gicor, Guerra, and Memo. See 2, DEFENDANTS 000027; Exhibit Brewer Montgomery County Utility District No. 4, the entity that issued utility services to Bellago, used Guerra and interchangeably See Exhibit P, Brewer 0 Brewer 0 Guerra was identified as the owner of the properties at issue, including by his own employee Luis Villalba (“Villalba”), in records maintained by the City of Conroe. See Exhibit O, Brewer 00 Brewer 00 Brewer 00 Brewer 01 Brewer , Brewer 0 In their dealings with all three Defendants, it was never made clear to Plaintiffs that there was a separation among them. See Exhibit C, ¶ 5; Exhibit D, ¶ 5. Indeed, Guerra used personal pronouns in his meeting with Plaintiffs at the shared offices of Gicor and Memo, which led Plaintiffs to believe that he was speaking for himself, as well as Gicor and Memo. See ; Exhibit D For these reasons, and based on this evidence, the Motion should be denied. More Than a Scintilla of Evidence Exists in Support of Plaintiffs’ DTPA Causes of Action In connection with Plaintiffs’ DTPA claims, Defendants challenge the following elements: (a) Plaintiffs are consumers; (b) Defendants can be sued under the DTPA; (c) Defendants committed a false, misleading, or deceptive act or practice that is specifically Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page enumerated in the “laundry list” and that was relied on by Plaintiffs to their detriment; (d) Defendants committed a breach of an express or implied warranty; (e) Defendants committed an unconscionable action or course of action; (f) Defendants used or employed an act or practice in violation of Chapter 541 of the Texas Insurance Code; (g) efendants violated one of the “tie in” consumer statutes; (h) Defendants’ actions were a producing cause of Plaintiffs’ damages. See Motion, ¶ Section 17.45 of the Texas Business and Commerce Code defines “consumer.” ODE § 17.45(4). Specifically, a “consumer” is an individual who seeks or acquires by purchase or lease, any goods or services. Plaintiffs were individuals who ought the purchase of a townhome. See Exhibit C, ¶¶ 2, 4 ; Exhibit D, ¶¶ 2, 4 ; Exhibit E, 25; 50:1 25; 51:1 25; 52:1 7; Exhibit F, 45:22 25; 46:1 25; 47:1 Section 17.50(a)(1) permits for Plaintiffs to bring a claim against any “person” ho uses or employs false, misleading, or deceptive acts or practices. ODE 17.50(a)(1), (3). A “person” is an individual, partnership, corporation, association, or other group, however organized. ODE § 17.45(3). Defendant Guerra is a person, Defendant Gicor is a corporation, and Defendant Memo is another group organized as an LLC. See Exhibit B 2, DEFENDANTS 000038 DEFENDANTS 000172, DEFENDANTS 000207, DEFENDANTS 000209, DEFENDANTS 000451 DEFENDANTS 000600 Exhibit E, 9:8 25; 10:9; 11:17 25; 12:1; 21:25; 22:1 25; 24:24 25; 25:1 Because Plaintiffs do not allege a violation of the Texas Insurance Code or a tie in consumer statute, those no evidence challenges are inapplicable to this case. Indeed, inclusion of these elements make the Motion conclusory and general, which is violative of Texas Rule of Civil Procedure 166a(i)’s mandate and renders the otion itself legally insufficient, to which Plaintiffs object and seek outright denial of the Motion. See Timpte Industries supra Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page Defendants claim that no evidence exists to support that they committed a false, misleading, or deceptive act or practice enumerated in the “laundry list.” Because Defendants fail to specify which enumerated “laundry list” item is challenged, their ence motion on all “laundry list” items is legally insufficient Timpte Industries, Inc. Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App. San Antonio 2000, pet. denied). As such, Plaintiffs object and Defendants’ Motion should be denied. Notwithstanding that fact, Plaintiffs will present evidence in support of the six items on the “laundry list” cited in Plaintiffs’ Third Amended Petition Guerra, acting individually or in his capacity as agent and representative of Gicor and Memo, reported to Plaintiffs in their pre purchase meeting about the identity of the designer, developer, and builder of Bellago and the construction of the building in which their Townhome sat, when the truth ended up showing that the work was not done by a qualified architect, engineer, or developer, and that the construction of the work was done improperly and without sufficient supervision or compliance with codes and industry best practices See 2, DEFENDANTS 000023 000024, DEFENDANTS 000122 , ¶¶ 4 15, 17, 19; Exhibit D, ¶¶ 4 13, 15, 17; Exhibit E, 49:10 25; 50:1 25; 51:1 ; Exhibit G, ¶¶ 7 8, 10 14; Exhibit G 2; Exhibit G 3; Exhibit H, ¶¶ 12 15; Exhibit H Exhibit J, ¶¶ 8 14; Exhibit J This meeting was around the time that Defendants were marketing Bellago, through signage and the website. See Exhibit E, 50:4 15. The meeting was the shared offices Due to similarities of allegations and factual underpinnings, some evidence and argument cited herein will be duplicative. Plaintiffs request the Court’s indulgence for any repetitive argument and would further point this Court to the entirety of the summary judgment evidence submitted, as set forth in Exhibits C P, as the most comprehensive presentment of evidence in support of each of the elements of the causes of action asserted by Plaintiffs and challenged by Defendants. Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page of Gicor and Memo. See xhibit C, ¶ 4; Exhibit D, ¶ 4; Exhibit E, 50:16 22. During this meeting, Guerra and Plaintiffs discussed what the townhouses in Building 5 include , and some Plaintiffs wanted to do. See C, ¶¶ 4 5; Exhibit D, ¶¶ 4 5; Exhibit E, 50:23 25; 52:1 Guerra did not tell Plaintiffs about the issues with the drain plan that had been encountered with Montgomery ounty in 2011 when they were interested in buying a new unit, or about the concerns that had been raised by April Villas at any point prior to that meeting with them. See Exhibit C, ¶¶ 7 ; Exhibit D, ¶¶ 7 ; Exhibit E, 220:7 20. Villalba was also present at this meeting and thought that floor plans and elevations were shown to Plaintiffs. See Exhibit F, 45:22 25; 46:1 25; 47:1 21. While Guerra not recall if he talked to Plaintiffs about the community of Bellago, access to Lake Conroe, or if he provided them with any plans or drawings of what the new unit would look like, Plaintiffs confirmed that he discussed those and other options. See ; Exhibit D Bellago was within the Extraterritorial Jurisdiction (“ETJ”) of the City of Conroe, a fact which was known to Defendants. See 2, DEFENDANTS 000015 000016, DEFENDANTS 000165; Exhibit E 48:9 14; Exhibit F, 47:22 25; 48:1 9. Indeed, a long as Gicor had en constructing at Bellago, Bellago has either been in Conroe’s ETJ o the city limits of Conroe. See Exhibit F 47:22 25; 48:1 9. When Defendants initiated construction on the Townhome, they had never built in the City of Conroe. See Exhibit E, ; 49:1. In the initial drawings prepared for the development of Bellago on behalf of Memo, reference was made to the fact that the Planning and Zoning Commission for the City of Conroe had provided a certificate of approval. See 2, DEFENDANTS 000 000016, DEFENDANTS 000165; Exhibit E, 57:9 25; 58:1 25; 59:1 25; 60:1 25; 61:1 Guerra Exhibit No. 4; Exhibit N, Brewer 00577. Despite this foreknowledge, Defendants Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page failed to follow the codes applicable to the City of Conroe and failed to have their construction inspected to ensure compliance. See Exhibit H, ¶ 13; Exhibit H Villalba was the superintendent during construction. See Exhibit E, 194:10 Villalba would occasionally report to Guerra on the progress of construction, but frequentl these reports were not in writing. See Exhibit E, 194:10 25; 195:1 Villalba failed to familiarize himself with the applicable codes and did not have proper inspections. See H, ¶ 14; Exhibit H Even though Villalba was not a registered architect in Texas and lacked an engineering degree, he prepared drawings and diagrams that were submitted for use in the permitting and construction process, including floor and elevation plans. See Exhibit F, 25; 9:1 25; 10:1 8; 32:13 25; 33:1 Guerra Exhibit No. 15; Exhibit K, Brewer 00408. In fact, in January 2016, Villalba submitted drawings to the City of Conroe for the design of the connection between the Townhome and adjacent townhouses to the south, in the very same building. See , Brewer 01837 In actuality, the townhouses were built in accordance with “architectural” designs prepared by Wanda Fick, self identified as a “building designer” but certainly not an architect, and foundation designs from Keelan Engineering sed on soil conditions that existed prior to the use of fill soil and were not confirmed after fill soil was added See 2, DEFENDANTS 000024; DEFENDANTS 000125; Exhibit F, 11:23 20; 17:13 20; 41:15 25; 42:1 Defendants’ failure to disclose the information concerning the construction of Building 5, which they knew at the time of their meeting with Plaintiffs and in close proximity to their purchase of the Townhome, was intended to induce Plaintiffs into a purchase transaction of a townhome unit in Building 5. See Exhibit C, ¶¶ 4 ; Exhibit D, ¶¶ 4 . In June, Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page July, and August 2016, drainage issues at Bellago were being addressed, which Defendants failed to disclose to Plaintiffs had reported and, by implication, had represented to have been resolved prior to that time. See Exhibit M, Brewer 00496 Exhibit O, Brewer 00728 00735, Brewer 00759 00832, Brewer 00843 00846, Brewer 00996 00997, Brewer 01304 01310, Brewer 01329 01338, Brewer 01390 01393, Brewer 01749 Defendants did not disclose this information; had any of this information been disclosed by Defendants to Plaintiffs, Plaintiffs would not have purchased the Townhome. See Exhibit C, ¶¶ ; Exhibit , ¶¶ 6 This evidence supports Plaintiffs’ allegation of violation 17.46(b)(2) and 17.46(b)(24) of the DTPA. Similarly, Guerra, acting individually or in his capacity as agent and representative of Gicor and Memo, represented to Plaintiffs in their pre purchase meeting that the building in which their Townhome sat was constructed properly, correctly, and in accordance with industry standards. See Exhibit C, ¶¶ 4 15, 17, 19; Exhibit D, ¶¶ 4 13, 15, ; Exhibit E, 49:10 25; 50:1 25; 51:1 25; 52:1 In fact, the work was not done by a qualified architect, engineer, or developer, and that the construction of the work was done improperly, incorrectly, and not in accordance with industry standards. DEFENDANTS 000122 000125; Exhibit E, 48:9 14, 23 25; 49:1; 50:4 25; 51:1 25; 52:1 20; 57:9 25; 58:1 25; 59:1 25; 60:1 25; 61:1 10; 194:10 25; 195:1 8; Guerra Exhibit Nos. 4, 15; Exhibit F, 8:6 25; 9:1 25; 10:1 25; 12:1 20; 17:13 25; 33:1 25; 42:1 25; 46:1 25; 47:1 25; 48:1 Exhibit H, ¶¶ 12 15; Exhibit H Exhibit K, Brewer 00408; Exhibit N, Brewer 00577; Exhibit O, Brewer 01837 efendants’ failure to disclose this information concerning the construction of Building 5, which they knew at the time of their meeting with Plaintiffs and in close proximity to their Plaintiffs’ Response to Defendants’ Evidence Motion for Summary Judgment Page purchase of the Townhome, was intended to induce Plaintiffs into a purchase transaction a townhome unit in Building 5. See Exhibit C, ¶¶ 4 ; Exhibit D, ¶¶ 4 Further, in June, July, and August 2016, drainage issues at Bellago were being addressed, which Defendants failed to disclose to Plaintiffs and had instead reported and, by implication, had represented to have been resolved prior to that time. See Exhibit M, Brewer 00496 Exhibit O, Brewer 00735, Brewer 00759 00832, Brewer 00843 00846, Brewer 00996 00