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Received and E-Filed for Record
10/6/2021 8:04 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Patricia Morrill
21-10-13873
CAUSE NO._______________
CLIANN HERRING § IN THE COUNTY COURT
Plaintiff § Montgomery County - 284th Judicial District Court
§
vs. § AT LAW NO. _____
§
STEVEN MORRISON §
§
Defendant. § MONTGOMERY COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION
COMES NOW, Plaintiff, Cliann Herring, who files this Original Petition, and would show
unto the Court as follows:
A. Discovery Control Plan
1. Plaintiff intends to conduct discovery under Level 1 of Texas Rule of Civil
Procedure 190.2 and affirmatively pleads that this suit is governed by the expedited-actions
process in Texas Rule of Civil Procedure 169.
B. Relief
2. Plaintiff seeks monetary relief of less than $250,000.00 and non-monetary relief.
Tex. R. Civ. P. 47(c)(2).
C. Parties/Service
3. Cliann Herring is Plaintiff (“Herring”). The last three numbers of Cliann Herring’s
Texas driver’s license number are 080, and the last three digits of her Social Security number are
971. Tex. Civ. Prac. & Rem. Code §30.014.
4. Steven Morrison is Defendant (“Morrison”). The last three numbers of Steven
Morrison’s Texas driver’s license number and the last three digits of his Social Security number
are unknown to Plaintiff. Id. Steven Morrison may be served at 19119 San Saba River Court,
Cypress, Texas 77433 or wherever he may be found.
C. Venue
5. Venue for this suit is proper under Texas Civil Practice & Remedies Code section
15.035(a)(1) because all or a substantial part of the events or omissions giving rise to this claim
occurred in Montgomery County.
D. Facts
6. On or about April 18, 2021, Herring, in response to a Facebook marketplace ad
placed by Morrison, purchased a 2006 Stingray boat (“ the boat”) and trailer for the listed price of
$11,100.00. Morrison assured Herring that the boat had “no mechanical or electrical issues” and
that he had proper title to the boat. Herring relied upon that representation by Morrison.
7. On or about, April 20, 2021, Morrison delivered the boat and title to a location on
Lake Conroe. Herring had no experience operating a boat, so Morrison put the boat in the water
and attempted to provide Herring with a brief lesson; however, the boat would not run properly.
8. Herring immediately asked for the return of her $11,100.00 purchase price, to
which Morrison responded “it’s your boat now” and handed her the title to the boat and trailer.
The parties then agreed to take the boat to a repair shop; however, Morrison declined all requests
for the return of her money.
9. Based on the time of year, the repair shop told Herring that the estimate would 3-4
weeks (it ended up being closer to 8 weeks). Herring, hoping to have her boat on the water during
the summer, subsequently paid $6,259.22 to have the boat repaired.
10. When Herring went to transfer the titles/registrations (both of which had expired)
into her name, she discovered that the neither title was in Morrison’s name; as a result, Herring
has not been able to transfer the titles. The boat (along with the trailer) remains dry docked and
cannot be lawfully operated.
11. Counsel for Herring sent written demand for the return of the purchase price on
May 3, 2021 in accordance with Texas Civil Practice and Remedies Code section 38.001(8).
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Morrison did not respond.
E. Breach of Contract
12. On or about April 18, 2021, the parties entered into a valid, enforceable oral
contract providing for the sale of the fully-operational 2006 Stingray boat and valid title in
exchange for the $11,100.00 purchase price.
13. Herring fully performed her contractual obligations by tendering the purchase
price. Morrison immediately cashed Herring’s check.
14. Morrison breached the contract by (1) failing to provide a valid title, and (2) selling
a boat so full of mechanical defects that Herring was forced to pay nearly HALF of the purchase
price to repair it.
15. Morrison’s breach caused injury to Herring, which resulted in the following
damages: $6,259.22 liquidated damages to repair the boat, loss of use due to Morrison’s failure to
deliver a valid title. The damages sought by Herring are within the jurisdictional limits of this
Court.
16. Plaintiff Herring is entitled to recover reasonable and necessary attorney’s fees
under Texas Civil Practice and Remedies Code chapter 38 because this suit is for breach of
contract. As stated above, Plaintiff’s counsel sent written demand to Morrison on May 3, 2021;
Morrison did not tender the purchase price.
F. Common-Law Fraud
17. In the alternative to breaching the contract and without waiving same, Herring avers
that Morrison represented to her that the boat had “no mechanical or electrical issues.” This
representation was material to Herring because without such affirmative representation, Herring
would never have agreed to purchase the boat.
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18. Morrison’s representation was a false representation of fact because the boat was
rife with mechanical and electrical issues. Morrison made this false representation knowing that
it was false and fully intended for Herring to rely upon same. Alternatively, Morrison made the
representation recklessly, as a positive assertion, and without knowledge of its truth.
19. Morrison intended for Herring to rely upon and had reason to expect that Herring
would act in reliance upon the false representation. Herring justifiably relied upon the
representation (to her extreme detriment) in tendering the purchase price.
20. Morrison’s false representation directly and proximately caused Herring’s damages
as outlined at paragraph 15 above, which are within the jurisdictional limits of the Court.
G. Fraud by Nondisclosure
21. In the alternative to the above-detailed counts and without waiving same,
Defendant Morrison committed fraud by nondisclosure by failing to disclose and/or concealing
material facts related to the purchase of the boat.
22. Morrison had a duty to disclose the severe mechanical and electrical deficiencies
of the Boat because of his disclosure that the boat was free of same. Morrison knew that, based
on Herring’s representations that she knew little or nothing about boats, Herring would be ignorant
of those facts and provided no equal opportunity to discover the truth (until after he had cashed
her check and told Herring “it’s your boat now”).
23. Morrison deliberately remained silent and did not disclose the defects to Herring,
intending on Herring to act without the information. Herring justifiably relied upon Morrison’s
silence with regard to the Boat’s mechanical and electrical defects.
24. By deliberately remaining silent, Morrison proximately caused Herring’s injuries
as described at paragraph 15, which are within the jurisdictional limits of the Court.
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H. Negligent Misrepresentation
25. Morrison represented to Herring that the boat was free from mechanical or
electrical issues, that the boat was fully operational. Morrison further represented that he had
lawful title to the boat.
26. Morrison made these representations in the course of a transaction to which he had
a pecuniary interest, to wit: $11,100.00.
27. Morrison made the representation to Herring for her guidance and to induce her
into purchasing the boat.
28. Morrison’s representations were an obvious misstatement of the facts. Further, it
was a failure to disclose information that Morrison had a duty to disclose.
29. Herring justifiably relied upon Morrison’s representations when purchasing the
boat, which resulted in the injuries outlined at paragraph 15 above that are within the jurisdictional
limits of this Court.
I. Exemplary Damages
30. Plaintiff Herring’s injuries resulted from Defendant Morrison’s actual fraud, gross
negligence or malice, which entitles Plaintiff to exemplary damages under Texas Civil Practice
and Remedies Code section 41.003(a)(1). Morrison knowingly, intentionally, and maliciously
represented to Herring that the Boat was free of mechanical and electrical defects knowing that the
statement was patently false. Further, Morrison was grossly negligent in his misrepresentations
and omissions to Herring.
J. Equitable Relief
31. Solely as it relates to the Boat title, Herring requests specific performance of the
contract, to wit: this Court ordering Morrison to provide Herring with a valid, original title within
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a reasonable time specified by the Court.
32. Alternatively, this Court should rescind the fraudulent contract (in addition to
awarding Herring the cost of repair) to avoid the unjust enrichment of the fraudulent party
Morrison. See Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 344 (Tex. 2011).
J. Conditions Precedent
33. All conditions precedent to Plaintiff’s claim for relief have been performed or have
occurred.
K. Request for Disclosure
34. Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant
disclose, within fifty (50) days of the service of this request, the information or material described
in Rule 194.2.
L. Prayer
35. Plaintiff Cliann Herring prays for the following:
a. actual damages (alternatively, specific performance of the contract);
b. Prejudgment and post-judgment interest;
c. Court costs;
d. Reasonable and necessary attorney’s fees;
e. Exemplary damages; and
f. All other relief to which Plaintiff may show herself justly entitled.
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Respectfully submitted,
/s/ Paul D. Bailiff
Paul D. Bailiff (SBN 24049892)
Bailiff Law Firm
917 Franklin Street, Suite 100
Houston, Texas 77002
Telephone: (713) 222-0877
Facsimile: (713) 222-0837
paul@bailifflawfirm.com
Attorney for Cliann Herring
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Preview
Received and E-Filed for Record 10/6/2021 8:04 AM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Patricia Morrill 21-10-13873 CAUSE NO._______________ CLIANN HERRING § IN THE COUNTY COURT Plaintiff § Montgomery County - 284th Judicial District Court § vs. § AT LAW NO. _____ § STEVEN MORRISON § § Defendant. § MONTGOMERY COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION COMES NOW, Plaintiff, Cliann Herring, who files this Original Petition, and would show unto the Court as follows: A. Discovery Control Plan 1. Plaintiff intends to conduct discovery under Level 1 of Texas Rule of Civil Procedure 190.2 and affirmatively pleads that this suit is governed by the expedited-actions process in Texas Rule of Civil Procedure 169. B. Relief 2. Plaintiff seeks monetary relief of less than $250,000.00 and non-monetary relief. Tex. R. Civ. P. 47(c)(2). C. Parties/Service 3. Cliann Herring is Plaintiff (“Herring”). The last three numbers of Cliann Herring’s Texas driver’s license number are 080, and the last three digits of her Social Security number are 971. Tex. Civ. Prac. & Rem. Code §30.014. 4. Steven Morrison is Defendant (“Morrison”). The last three numbers of Steven Morrison’s Texas driver’s license number and the last three digits of his Social Security number are unknown to Plaintiff. Id. Steven Morrison may be served at 19119 San Saba River Court, Cypress, Texas 77433 or wherever he may be found. C. Venue 5. Venue for this suit is proper under Texas Civil Practice & Remedies Code section 15.035(a)(1) because all or a substantial part of the events or omissions giving rise to this claim occurred in Montgomery County. D. Facts 6. On or about April 18, 2021, Herring, in response to a Facebook marketplace ad placed by Morrison, purchased a 2006 Stingray boat (“ the boat”) and trailer for the listed price of $11,100.00. Morrison assured Herring that the boat had “no mechanical or electrical issues” and that he had proper title to the boat. Herring relied upon that representation by Morrison. 7. On or about, April 20, 2021, Morrison delivered the boat and title to a location on Lake Conroe. Herring had no experience operating a boat, so Morrison put the boat in the water and attempted to provide Herring with a brief lesson; however, the boat would not run properly. 8. Herring immediately asked for the return of her $11,100.00 purchase price, to which Morrison responded “it’s your boat now” and handed her the title to the boat and trailer. The parties then agreed to take the boat to a repair shop; however, Morrison declined all requests for the return of her money. 9. Based on the time of year, the repair shop told Herring that the estimate would 3-4 weeks (it ended up being closer to 8 weeks). Herring, hoping to have her boat on the water during the summer, subsequently paid $6,259.22 to have the boat repaired. 10. When Herring went to transfer the titles/registrations (both of which had expired) into her name, she discovered that the neither title was in Morrison’s name; as a result, Herring has not been able to transfer the titles. The boat (along with the trailer) remains dry docked and cannot be lawfully operated. 11. Counsel for Herring sent written demand for the return of the purchase price on May 3, 2021 in accordance with Texas Civil Practice and Remedies Code section 38.001(8). 2 Morrison did not respond. E. Breach of Contract 12. On or about April 18, 2021, the parties entered into a valid, enforceable oral contract providing for the sale of the fully-operational 2006 Stingray boat and valid title in exchange for the $11,100.00 purchase price. 13. Herring fully performed her contractual obligations by tendering the purchase price. Morrison immediately cashed Herring’s check. 14. Morrison breached the contract by (1) failing to provide a valid title, and (2) selling a boat so full of mechanical defects that Herring was forced to pay nearly HALF of the purchase price to repair it. 15. Morrison’s breach caused injury to Herring, which resulted in the following damages: $6,259.22 liquidated damages to repair the boat, loss of use due to Morrison’s failure to deliver a valid title. The damages sought by Herring are within the jurisdictional limits of this Court. 16. Plaintiff Herring is entitled to recover reasonable and necessary attorney’s fees under Texas Civil Practice and Remedies Code chapter 38 because this suit is for breach of contract. As stated above, Plaintiff’s counsel sent written demand to Morrison on May 3, 2021; Morrison did not tender the purchase price. F. Common-Law Fraud 17. In the alternative to breaching the contract and without waiving same, Herring avers that Morrison represented to her that the boat had “no mechanical or electrical issues.” This representation was material to Herring because without such affirmative representation, Herring would never have agreed to purchase the boat. 3 18. Morrison’s representation was a false representation of fact because the boat was rife with mechanical and electrical issues. Morrison made this false representation knowing that it was false and fully intended for Herring to rely upon same. Alternatively, Morrison made the representation recklessly, as a positive assertion, and without knowledge of its truth. 19. Morrison intended for Herring to rely upon and had reason to expect that Herring would act in reliance upon the false representation. Herring justifiably relied upon the representation (to her extreme detriment) in tendering the purchase price. 20. Morrison’s false representation directly and proximately caused Herring’s damages as outlined at paragraph 15 above, which are within the jurisdictional limits of the Court. G. Fraud by Nondisclosure 21. In the alternative to the above-detailed counts and without waiving same, Defendant Morrison committed fraud by nondisclosure by failing to disclose and/or concealing material facts related to the purchase of the boat. 22. Morrison had a duty to disclose the severe mechanical and electrical deficiencies of the Boat because of his disclosure that the boat was free of same. Morrison knew that, based on Herring’s representations that she knew little or nothing about boats, Herring would be ignorant of those facts and provided no equal opportunity to discover the truth (until after he had cashed her check and told Herring “it’s your boat now”). 23. Morrison deliberately remained silent and did not disclose the defects to Herring, intending on Herring to act without the information. Herring justifiably relied upon Morrison’s silence with regard to the Boat’s mechanical and electrical defects. 24. By deliberately remaining silent, Morrison proximately caused Herring’s injuries as described at paragraph 15, which are within the jurisdictional limits of the Court. 4 H. Negligent Misrepresentation 25. Morrison represented to Herring that the boat was free from mechanical or electrical issues, that the boat was fully operational. Morrison further represented that he had lawful title to the boat. 26. Morrison made these representations in the course of a transaction to which he had a pecuniary interest, to wit: $11,100.00. 27. Morrison made the representation to Herring for her guidance and to induce her into purchasing the boat. 28. Morrison’s representations were an obvious misstatement of the facts. Further, it was a failure to disclose information that Morrison had a duty to disclose. 29. Herring justifiably relied upon Morrison’s representations when purchasing the boat, which resulted in the injuries outlined at paragraph 15 above that are within the jurisdictional limits of this Court. I. Exemplary Damages 30. Plaintiff Herring’s injuries resulted from Defendant Morrison’s actual fraud, gross negligence or malice, which entitles Plaintiff to exemplary damages under Texas Civil Practice and Remedies Code section 41.003(a)(1). Morrison knowingly, intentionally, and maliciously represented to Herring that the Boat was free of mechanical and electrical defects knowing that the statement was patently false. Further, Morrison was grossly negligent in his misrepresentations and omissions to Herring. J. Equitable Relief 31. Solely as it relates to the Boat title, Herring requests specific performance of the contract, to wit: this Court ordering Morrison to provide Herring with a valid, original title within 5 a reasonable time specified by the Court. 32. Alternatively, this Court should rescind the fraudulent contract (in addition to awarding Herring the cost of repair) to avoid the unjust enrichment of the fraudulent party Morrison. See Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 344 (Tex. 2011). J. Conditions Precedent 33. All conditions precedent to Plaintiff’s claim for relief have been performed or have occurred. K. Request for Disclosure 34. Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose, within fifty (50) days of the service of this request, the information or material described in Rule 194.2. L. Prayer 35. Plaintiff Cliann Herring prays for the following: a. actual damages (alternatively, specific performance of the contract); b. Prejudgment and post-judgment interest; c. Court costs; d. Reasonable and necessary attorney’s fees; e. Exemplary damages; and f. All other relief to which Plaintiff may show herself justly entitled. 6 Respectfully submitted, /s/ Paul D. Bailiff Paul D. Bailiff (SBN 24049892) Bailiff Law Firm 917 Franklin Street, Suite 100 Houston, Texas 77002 Telephone: (713) 222-0877 Facsimile: (713) 222-0837 paul@bailifflawfirm.com Attorney for Cliann Herring 7