Preview
Filed
11/30/2020 12:00 AM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Justyce Tumer
NO. 20-DCV-276472
EMERY DOUGLASS HOLLIN IN THE DISTRICT COURT
Plaintiff,
V 240TH JUDICIAL DISTRICT
TAMEKIA SHUNETTE MYERS
Defendant. FORT BEND COUNTY, TEXAS
PLAINTIFF/COUNTER-DEFENDANT EMERY DOUGLASS HOLLIN’S
MOTION FOR PARTIAL NO EVIDENCE AND TRADITIONAL
SUMMARY JUDGMENT
I. Factual and Procedural Background
1 This action is one for partition of a residential property under TEX. PROP. CODE Ch. 23,
and, TEX. R. CIv. P. 756 et seq.
2. On August 29, 2019, Plaintiff/Counter-Defendant (“Plaintiff”) and Defendant/Counter-
Plaintiff (“Defendant”) purchased a real estate home together with the legal description of Harvest
Green Sec 26, BLOCK 1, Lot 12, better known by its physical address of
EE (the “Property”).
3. Subject to a mortgage, Plaintiff and Defendant own the Property fifty percent (50%) each,
respectively, as joint tenants.
4. For the down payment on the home, Plaintiff contributed approximately $24,000.00, and,
Defendant contributed approximately $7,000.00. The Property is encumbered with a mortgage
with an outstanding principal of approximately $477,000.00.
5. Both parties currently reside at the Property and each pays half of the mortgage note.
6. Plaintiff further pays the monthly bills for electricity, cable service, and, internet service.
Meanwhile, Defendant pays the monthly water and gas bills.
7. Despite Plaintiff's requests, Defendant fails and refuses to sell the Property to a third party
Page 1 of 10
and to divide the proceeds equitably.
8. The Property is not readily dividable, making a partition in kind impractical. As such,
Plaintiffs seeks a partition by sale. The Plaintiff is entitled to partition under TEX. PROP. CODE Ch.
23.
9. Once Plaintiff filed suit and served Defendant with this suit for partition and also auxiliary
relief, seeking reimbursement for Plaintiff's contributions made and expenses incurred in
connection with the property, Defendant counter-sued for (1) Breach of Contract, and, (2)
Declaratory Judgment.!
10. For her breach of contract claim, Defendant claims in her counter-suit that “Plaintiff
and
Defendant purchased the subject property under an agreement to generally share the expenses
associated with the property, jointly manage the property, and upon sale, account
for the expenses
incurred by the parties and divide the remaining proceeds 50-50.” Defendant never clarifies if
the agreement was written or oral, and Plaintiff addresses either scenario in this motion.
11. For her declaratory judgment claim, Defendant pleads in her counter-suit that, “In the event
that the Court finds the agreement between the parties unenforceable of ambiguous, Defendant
93
seeks a declaration from the Court of the rights and duties under their investment arrangement.
Again, Defendant never clarifies if the agreement was written or oral, and Plaintiff addresses either
scenario in this motion.
12. Plaintiff denies that any such agreement was ever entered into.
| See Defendant’s Original Answer and Counter-Claim filed in this case on October 13, 2020
2 Id, pg. 1,42
* Id, pg. 1,45
Page 2 of 10
II. Standard of Review
No Evidence Summary Judgment
13. Under Rule 166a(i), upon a defendant’s motion stating the elements of plaintiffs claim(s)
as to which there is no evidence, the burden shifts to the plaintiff to produce evidence raising a
fact issue on the challenged elements. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423
(Tex.App. — Houston [1st Dist.] 2000, no pet.). Rule 166a(i) states the following:
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 proofat trial. The
Motion must state the elements as to which there is no evidence. The Court
must grant the Motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.
Tex. R. Civ. P. 166a(i). A party may not rest upon the allegations of its pleadings, but must
present evidence that raises a genuine issue of fact as to all essential elements of its claims upon
which it will bear the burden of proof at trial. Frazier v. Yu, 987 S.W.2d 607 (Tex.App. Fort
Worth 1999, pet. denied). The Court must grant the motion unless said party produces summary
judgment evidence raising a genuine issue of material fact. Defendant has no such evidence, thus
entitling Plaintiff to a no-evidence summary judgment.
Traditional Summary Judgment
14. To prevail on a traditional motion for summary judgment, the movant must only
demonstrate that there is no genuine issue as to a material fact such that the movant is entitled to
summary judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549—
49 (Tex. 1985). A defendant moving for summary judgment must either (a) disprove at least one
element of the plaintiff's cause of action or (b) plead and conclusively establish each essential
element of an affirmative defense to rebut plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339, 341
Page 3 of 10
(Tex. 1995). A genuine issue of material fact exists only where the evidence “rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Moreover, if “the evidence offered to
prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its
existence,” it is not evidence that should be considered at all. Kindred v. Con/Chem, Inc., 650
S.W.2d 61, 63 (Tex. 1983).
Ill. Arguments & Authorities
Basis for No Evidence Summary Judgment on Defendant's Breach of Contract Claim if Defendant
Claims the Agreement Exists in Written Form
15. To prevail on a breach of contract claim, a party must show (1) the existence of a valid
contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by
the defendant; and (4) damages sustained as a result of the breach.* Therefore, Defendant will
need to establish that she had a valid and enforceable contract with Plaintiff as claimed in her
counter-petition, that is, “an agreement to generally share the expenses associated with the
property, jointly manage the property, and upon sale, account for the expenses incurred by the
995,
parties and divide the remaining proceeds 50-50.
16. On October 15, 2020, Plaintiff propounded unto Defendant Plaintiff's First Combined
Request for Interrogatories and Request for Production (“Discovery”).° As part of said Discovery,
Plaintiff included Request for Production #1, which states:’
* Davis y. Texas Farm Bureau Ins., 470 S.W.3d 97, 104 (Tex. App —Houston [1st Dist.] 2015, no pet.) (citing Valero
Mktg. & Supply Co. v. Kalama Int'l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
5 See Defendant’s Original Answer and Counter-Claim filed in this case on October 13, 2020, pg. 1, |2
® See Exhibit P-1
7 Id., pg. 4
Page 4 of 10
Please provide a copy of the agreement alluded to in your Defendant's Original Answer
and Counter-Claim, § 2, or more specifically, in the paragraph of your Defendant’s Original
Answer and Counter-Claim which states, “Plaintiff and Defendant purchased the subject property
under an agreement to generally share the expenses associated with the property, jointly manage
the property, and upon sale, account for the expenses incurred by the parties and divide the
remaining proceeds 50-50.”
eens ———
17. Defendants’ responses to Plaintiff's Discovery were due on November 16, 2020. Defendant
has failed to produce any responses whatsoever to Plaintiff's Discovery, including providing a
copy of the alleged agreement which forms the basis of Defendant’s breach of contract claim.
18. By failing to provide a copy of the written contract, Defendant has failed to provide
evidence of the first element in a breach of contact claim: the existence of a valid contract.
19. Applying TEX. R. Civ. P.166a(i), the burden now shifts definitively unto the Defendant to
produce evidence raising a fact issue on the challenged elements.® Again, party may not rest upon
the allegations of its pleadings, but must present evidence that raises a genuine issue of fact as to
all essential elements of its claims upon which it will bear the burden of proof at trial. Frazier v.
Yu, 987 S.W.2d 607 (Tex.App. — Fort Worth 1999, pet. denied). The Court must grant the motion
unless said party produces summary judgment evidence raising a genuine issue of material fact.
Defendant has no such evidence, thus entitling Plaintiff to a no-evidence summary judgment.
Basis for No Evidence and Defendant’s Breach of Contract Claim if Defendant Claims the
Agreement was Oral
20. Aforementioned Discovery also included interrogatories in case the agreement which
Defendant claims to exist between the parties was verbal:°
8 Greathouse y. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App. — Houston [1st Dist.] 2000, no pet.)
2 Id.
Page 5 of 10
Interrogatory #1
If you contend that the aforementioned agreement described in Request for Production #1
was verbal, then please state the date and time of when it was entered into.
Interrogatory #2
If you contend that the aforementioned agreement described in Request for Production #1
was verbal, then please state the name. address, telephone numbers. and, emails of any and all
witnesses to such an agreement.
Interrogatory #4
If you contend that the aforementioned agreement described in Request for Production #1
was verbal, then please state the address (or if address is unavailable, then nearest crossing streets)
and city and state of where the agreement was entered into.
21. Defendant has failed to provide the date and time of the alleged agreement, failed to provide
a list of any witnesses to such an agreement, and, has failed to provide the location at which said
alleged agreement was entered into between the parties. If “the evidence offered to prove a vital
fact is so weak as to do no more than create a mere surmise or suspicion of its existence,” it is not
evidence that should be considered at all. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983). Herein, Defendant fails not only to offer weak evidence, but any evidence at all. The Court
must grant the motion unless said party produces summary judgment evidence raising a genuine
issue of material fact. Defendant has no such evidence, thus entitling Plaintiff to a no-evidence
summary judgment.
Basis for No Evidence Summary Judgment on Defendant's Declaratory Judgment Action if
Defendant Claims the Agreement Exists in Written Form
22. A declaratory judgment action pertains to a “deed, will, written contract, or other writings
constituting a contract” under TEX. CIV. PRAC. & REM. CODE §37.004, which renders said statute
the equivalent of an element for purposes of summary judgment. Again, by failing to provide a
copy of the written contract, Defendant has failed to provide evidence of the basic element of a
declaratory judgment — a written contract, or anything in writing to which a declaratory judgment
can apply. Applying TEx. R. CIv. P.166a(i), the burden now shifts definitively unto the Defendant
Page 6 of 10
to produce evidence raising a fact issue on the challenged elements.'° Again, party may not rest
upon the allegations of its pleadings, but must present evidence that raises a genuine issue of fact
as to all essential elements of its claims upon which it will bear the burden of proof at trial. Frazier
v. Yu, 987 S.W.2d 607 (Tex.App. — Fort Worth 1999, pet. denied). The Court must grant the motion
unless said party produces summary judgment evidence raising a genuine issue of material fact.
Defendant has no such evidence, thus entitling Plaintiff to a no-evidence summary judgment.
Basis for Traditional Summary _Judgment_on_Defendant’s Breach _of Contract Claim_and
Declaratory Judgment Action if Defendant Claims the Agreement was Oral
23. Even if the Plaintiff and Defendant entered into a verbal agreement, the oral agreement
between Plaintiff and Defendant is voidable by the statute of frauds. Specifically, Defendant
alleges that Plaintiff and Defendant entered into “an agreement to generally share the expenses
associated with the property, jointly manage the property, and upon sale, account for the expenses
incurred by the parties and divide the remaining proceeds 50-50.”'' If the agreement was an
contract, then Defendant has provided no concurrent or subsequent documentary evidence of the
terms of the agreement whatsoever. Texas law is clear — an agreement involving real estate is
subject to the statute of frauds. TEX. BUS. & COM. CODE §26.02(b)(4), (b)(5); Fears v. Texas, 247
S.W.ed 729, 735 (Tex.App. — Texarkana 2008; pet. denied). More specifically, an agreement
involving a sale of real estate is subject to the statute of frauds. TEx. Bus. & COM. CODE
§26.01(b)(4). Applying statutory law, the statute of frauds renders any agreement in the terms
plead by Defendant as unenforceable if it does not comply with the writing and signing
requirements of the statute.
24. Similarly, Defendant’s declaratory judgment action requires the existence of a written
10 Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App. — Houston [1st Dist.] 2000, no pet.)
1! See Defendant’s Original Answer and Counter-Claim filed in this case on October 13, 2020, pg. 1, 42
Page 7 of 10
contract, and simply by making the claim that the agreement was oral, Defendant invalidates her
A party moving for traditional summary judgment can have such motion granted if they
disprove at least one element of the plaintiffs cause of action or (b) plead and conclusively
establish each essential element of an affirmative defense to rebut plaintiff's cause. Cathey v.
Defendant’s cause of action
for breach of contract is effectively disproven: the existence of a valid contract. Similarly,
Defendant’s action for declaratory judgment is invalidated because a declaratory judgment
requires a written instrument or document.
Moreover, if “the evidence offered to prove a vital fact is so weak as to do no more than
create a mere surmise or suspicion of its existence,” it is not evidence that should be considered at
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Herein, Defendant offers not w
evidence, but, no evidence at all. As such, Plaintiffis entitled to summary judgment. This is exactly
what Second Court of Appeals had in mind when it opined that a party may not rest upon the
allegations of its pleadings, but must present evidence that raises a genuine issue of fact as to all
essential elements of its claims upon which it will bear the burden of proof at trial. Frazier v. Yu
Accordingly, Defendant’s claims are outright baseless. If Defendant maintains that the
agreement was in writing, she has failed to produce this agreement and Plaintiffis entitled to a no-
evidence summary judgment on both the breach of contract and declaratory judgment actions. If
Defendant maintains that the agreement was oral, then she has failed to provide specifics on that
agreement and Plaintiff is entitled to a no-evidence summary judgment on both the breach of
of
contract and declaratory judgment actions. Furthermore, if the agreement was oral, then it is
statutorily invalid under statute of frauds, and the Plaintiff is entitled to a traditional summary
judgment because Defendant has had at least one element of her breach of contract claim disproven
(i.e. that a valid agreement exists), and, has had her declaratory judgment invalidated by the
agreement not being in writing.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that this
Court GRANT this summary judgment and award him all such other relief to which he may be
justly entitled.
Respectfully submitted,
ILIONSKY LAW, PLLC
2011 Leeland St., Suite 5
Houston, Texas 77003
Tel. (713) 482-1974
Fax. (832) 645-7497
By: /s/E. Z. Ilionsky
E. Z. Ilionsky
Texas Bar No. 24059992
ez@ilionsky.com
Attorney for Plaintiff
Emery Douglass Hollin
Page 9 of 10
CERTIFICATE OF SERVICE
I hereby certify that on November 29, 2020, in accordance with the TEXAS RULES OF
CIVIL PROCEDURE, a true and correct copy of the pleading/instrument/document was served unto
all parties.
By: /s/E. Z. Ilionsky
E. Z. Ilionsky
Page 10 of 10
[>a
ll ine
NO. 20-DCV-276472
EMERY DOUGLASS HOLLIN IN THE DISTRICT COURT
Plaintiff,
V 240TH JUDICIAL DISTRICT
TAMEKIA SHUNETTE MYERS
Defendant. FORT BEND COUNTY, TEXAS
PLAINTIFF’S FIRST COMBINED
REQUEST FOR INTERROGATORIES AND REQUEST FOR PRODUCTION
TO: Tamekia Shunette Myers, by and through its attorney of record, Jon Hill, Esq.
Also, demand is hereby made under Rule 196 of the TEXAS RULES OF CIVIL PROCEDURE,
that Defendant produce or permit the undersigned attorney, E. Z. Ilionsky, to inspect and copy or
reproduce the items requested within. Within thirty (30) days after these requests for production,
you must serve written responses to the undersigned attorney at 2011 Leeland St., Houston, Texas
77003, including the items requested or stating with respect to each request that an inspection and
copying or reproduction will be permitted as requested.
Finally, under Rules 190, 192, and 197 of the Texas Rules of Civil Procedure, Defendant
is required to answer in complete detail and in writing each of the attached interrogatories; sign
his answers to the interrogatories as required by rule 191.3(a) of the Texas Rules of Civil
Procedure; swear to the truth of his answers before a notary public or other judicial officer as
required by rule 197.2(d) of the Texas Rules of Civil Procedure or make an unsworn declaration
as allowed by section 132.001 of the Texas Civil Practice and Remedies Code; and deliver a
complete, signed, and notarized copy of his answers to the undersigned attorney within thirty (30)
days following service of this request.
Respectfully submitted,
ILIONSKY LAW, PLLC
2011 Leeland St.
Houston, Texas 77003
Tel. (713) 482-1974
Fax. (832) 645-7497
Page 1 of 4
By: /s/E. Z. Ilionsky
E. Z. Ilionsky
Texas Bar No. 24059992
ez@ilionsky.com
Attorney for Emery Hollin
Page 2 of 4
CERTIFICATE OF SERVICE
I hereby certify that on October 15, 2020, in accordance with the TEXAS RULES OF
CIVIL PROCEDURE, a true and correct copy of the pleading/instrument/document was served unto
all required parties.
By: /s/E. Z. Ilionsky
E. Z. Ilionsky
Page 3 of 4
COMBINED REQUESTS
Request for Production #1
Please provide a copy of the agreement alluded to in your Defendant’s Original Answer
and Counter-Claim, § 2, or more specifically, in the paragraph of your Defendant’s Original
Answer and Counter-Claim which states, “Plaintiff and Defendant purchased the subject property
under an agreement to generally share the expenses associated with the property, jointly manage
the property, and upon sale, account for the expenses incurred by the parties and divide the
remaining proceeds 50-50.”
Interrogatory #1
If you contend that the aforementioned agreement described in Request for Production #1
was verbal, then please state the date and time of when it was entered into.
Interrogatory #2
If you contend that the aforementioned agreement described in Request for Production #1
was verbal, then please state the name, address, telephone numbers, and, emails of any and all
witnesses to such an agreement.
Interrogatory #4
If you contend that the aforementioned agreement described in Request for Production #1
was verbal, then please state the address (or if address is unavailable, then nearest crossing streets)
and city and state of where the agreement was entered into.
Interrogatory #4
If you contend that Plaintiff should not receive auxiliary relief in Plaintiff's Original
Petition in Suit for Partition § 18, please state the facts as to why you contend this.
Page 4 of 4
Preview
Filed 11/30/2020 12:00 AM Beverley McGrew Walker District Clerk Fort Bend County, Texas Justyce Tumer NO. 20-DCV-276472 EMERY DOUGLASS HOLLIN IN THE DISTRICT COURT Plaintiff, V 240TH JUDICIAL DISTRICT TAMEKIA SHUNETTE MYERS Defendant. FORT BEND COUNTY, TEXAS PLAINTIFF/COUNTER-DEFENDANT EMERY DOUGLASS HOLLIN’S MOTION FOR PARTIAL NO EVIDENCE AND TRADITIONAL SUMMARY JUDGMENT I. Factual and Procedural Background 1 This action is one for partition of a residential property under TEX. PROP. CODE Ch. 23, and, TEX. R. CIv. P. 756 et seq. 2. On August 29, 2019, Plaintiff/Counter-Defendant (“Plaintiff”) and Defendant/Counter- Plaintiff (“Defendant”) purchased a real estate home together with the legal description of Harvest Green Sec 26, BLOCK 1, Lot 12, better known by its physical address of EE (the “Property”). 3. Subject to a mortgage, Plaintiff and Defendant own the Property fifty percent (50%) each, respectively, as joint tenants. 4. For the down payment on the home, Plaintiff contributed approximately $24,000.00, and, Defendant contributed approximately $7,000.00. The Property is encumbered with a mortgage with an outstanding principal of approximately $477,000.00. 5. Both parties currently reside at the Property and each pays half of the mortgage note. 6. Plaintiff further pays the monthly bills for electricity, cable service, and, internet service. Meanwhile, Defendant pays the monthly water and gas bills. 7. Despite Plaintiff's requests, Defendant fails and refuses to sell the Property to a third party Page 1 of 10 and to divide the proceeds equitably. 8. The Property is not readily dividable, making a partition in kind impractical. As such, Plaintiffs seeks a partition by sale. The Plaintiff is entitled to partition under TEX. PROP. CODE Ch. 23. 9. Once Plaintiff filed suit and served Defendant with this suit for partition and also auxiliary relief, seeking reimbursement for Plaintiff's contributions made and expenses incurred in connection with the property, Defendant counter-sued for (1) Breach of Contract, and, (2) Declaratory Judgment.! 10. For her breach of contract claim, Defendant claims in her counter-suit that “Plaintiff and Defendant purchased the subject property under an agreement to generally share the expenses associated with the property, jointly manage the property, and upon sale, account for the expenses incurred by the parties and divide the remaining proceeds 50-50.” Defendant never clarifies if the agreement was written or oral, and Plaintiff addresses either scenario in this motion. 11. For her declaratory judgment claim, Defendant pleads in her counter-suit that, “In the event that the Court finds the agreement between the parties unenforceable of ambiguous, Defendant 93 seeks a declaration from the Court of the rights and duties under their investment arrangement. Again, Defendant never clarifies if the agreement was written or oral, and Plaintiff addresses either scenario in this motion. 12. Plaintiff denies that any such agreement was ever entered into. | See Defendant’s Original Answer and Counter-Claim filed in this case on October 13, 2020 2 Id, pg. 1,42 * Id, pg. 1,45 Page 2 of 10 II. Standard of Review No Evidence Summary Judgment 13. Under Rule 166a(i), upon a defendant’s motion stating the elements of plaintiffs claim(s) as to which there is no evidence, the burden shifts to the plaintiff to produce evidence raising a fact issue on the challenged elements. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App. — Houston [1st Dist.] 2000, no pet.). Rule 166a(i) states the following: 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 proofat trial. The Motion must state the elements as to which there is no evidence. The Court must grant the Motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i). A party may not rest upon the allegations of its pleadings, but must present evidence that raises a genuine issue of fact as to all essential elements of its claims upon which it will bear the burden of proof at trial. Frazier v. Yu, 987 S.W.2d 607 (Tex.App. Fort Worth 1999, pet. denied). The Court must grant the motion unless said party produces summary judgment evidence raising a genuine issue of material fact. Defendant has no such evidence, thus entitling Plaintiff to a no-evidence summary judgment. Traditional Summary Judgment 14. To prevail on a traditional motion for summary judgment, the movant must only demonstrate that there is no genuine issue as to a material fact such that the movant is entitled to summary judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549— 49 (Tex. 1985). A defendant moving for summary judgment must either (a) disprove at least one element of the plaintiff's cause of action or (b) plead and conclusively establish each essential element of an affirmative defense to rebut plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339, 341 Page 3 of 10 (Tex. 1995). A genuine issue of material fact exists only where the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Moreover, if “the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence,” it is not evidence that should be considered at all. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Ill. Arguments & Authorities Basis for No Evidence Summary Judgment on Defendant's Breach of Contract Claim if Defendant Claims the Agreement Exists in Written Form 15. To prevail on a breach of contract claim, a party must show (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach.* Therefore, Defendant will need to establish that she had a valid and enforceable contract with Plaintiff as claimed in her counter-petition, that is, “an agreement to generally share the expenses associated with the property, jointly manage the property, and upon sale, account for the expenses incurred by the 995, parties and divide the remaining proceeds 50-50. 16. On October 15, 2020, Plaintiff propounded unto Defendant Plaintiff's First Combined Request for Interrogatories and Request for Production (“Discovery”).° As part of said Discovery, Plaintiff included Request for Production #1, which states:’ * Davis y. Texas Farm Bureau Ins., 470 S.W.3d 97, 104 (Tex. App —Houston [1st Dist.] 2015, no pet.) (citing Valero Mktg. & Supply Co. v. Kalama Int'l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.). 5 See Defendant’s Original Answer and Counter-Claim filed in this case on October 13, 2020, pg. 1, |2 ® See Exhibit P-1 7 Id., pg. 4 Page 4 of 10 Please provide a copy of the agreement alluded to in your Defendant's Original Answer and Counter-Claim, § 2, or more specifically, in the paragraph of your Defendant’s Original Answer and Counter-Claim which states, “Plaintiff and Defendant purchased the subject property under an agreement to generally share the expenses associated with the property, jointly manage the property, and upon sale, account for the expenses incurred by the parties and divide the remaining proceeds 50-50.” eens ——— 17. Defendants’ responses to Plaintiff's Discovery were due on November 16, 2020. Defendant has failed to produce any responses whatsoever to Plaintiff's Discovery, including providing a copy of the alleged agreement which forms the basis of Defendant’s breach of contract claim. 18. By failing to provide a copy of the written contract, Defendant has failed to provide evidence of the first element in a breach of contact claim: the existence of a valid contract. 19. Applying TEX. R. Civ. P.166a(i), the burden now shifts definitively unto the Defendant to produce evidence raising a fact issue on the challenged elements.® Again, party may not rest upon the allegations of its pleadings, but must present evidence that raises a genuine issue of fact as to all essential elements of its claims upon which it will bear the burden of proof at trial. Frazier v. Yu, 987 S.W.2d 607 (Tex.App. — Fort Worth 1999, pet. denied). The Court must grant the motion unless said party produces summary judgment evidence raising a genuine issue of material fact. Defendant has no such evidence, thus entitling Plaintiff to a no-evidence summary judgment. Basis for No Evidence and Defendant’s Breach of Contract Claim if Defendant Claims the Agreement was Oral 20. Aforementioned Discovery also included interrogatories in case the agreement which Defendant claims to exist between the parties was verbal:° 8 Greathouse y. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App. — Houston [1st Dist.] 2000, no pet.) 2 Id. Page 5 of 10 Interrogatory #1 If you contend that the aforementioned agreement described in Request for Production #1 was verbal, then please state the date and time of when it was entered into. Interrogatory #2 If you contend that the aforementioned agreement described in Request for Production #1 was verbal, then please state the name. address, telephone numbers. and, emails of any and all witnesses to such an agreement. Interrogatory #4 If you contend that the aforementioned agreement described in Request for Production #1 was verbal, then please state the address (or if address is unavailable, then nearest crossing streets) and city and state of where the agreement was entered into. 21. Defendant has failed to provide the date and time of the alleged agreement, failed to provide a list of any witnesses to such an agreement, and, has failed to provide the location at which said alleged agreement was entered into between the parties. If “the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence,” it is not evidence that should be considered at all. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Herein, Defendant fails not only to offer weak evidence, but any evidence at all. The Court must grant the motion unless said party produces summary judgment evidence raising a genuine issue of material fact. Defendant has no such evidence, thus entitling Plaintiff to a no-evidence summary judgment. Basis for No Evidence Summary Judgment on Defendant's Declaratory Judgment Action if Defendant Claims the Agreement Exists in Written Form 22. A declaratory judgment action pertains to a “deed, will, written contract, or other writings constituting a contract” under TEX. CIV. PRAC. & REM. CODE §37.004, which renders said statute the equivalent of an element for purposes of summary judgment. Again, by failing to provide a copy of the written contract, Defendant has failed to provide evidence of the basic element of a declaratory judgment — a written contract, or anything in writing to which a declaratory judgment can apply. Applying TEx. R. CIv. P.166a(i), the burden now shifts definitively unto the Defendant Page 6 of 10 to produce evidence raising a fact issue on the challenged elements.'° Again, party may not rest upon the allegations of its pleadings, but must present evidence that raises a genuine issue of fact as to all essential elements of its claims upon which it will bear the burden of proof at trial. Frazier v. Yu, 987 S.W.2d 607 (Tex.App. — Fort Worth 1999, pet. denied). The Court must grant the motion unless said party produces summary judgment evidence raising a genuine issue of material fact. Defendant has no such evidence, thus entitling Plaintiff to a no-evidence summary judgment. Basis for Traditional Summary _Judgment_on_Defendant’s Breach _of Contract Claim_and Declaratory Judgment Action if Defendant Claims the Agreement was Oral 23. Even if the Plaintiff and Defendant entered into a verbal agreement, the oral agreement between Plaintiff and Defendant is voidable by the statute of frauds. Specifically, Defendant alleges that Plaintiff and Defendant entered into “an agreement to generally share the expenses associated with the property, jointly manage the property, and upon sale, account for the expenses incurred by the parties and divide the remaining proceeds 50-50.”'' If the agreement was an contract, then Defendant has provided no concurrent or subsequent documentary evidence of the terms of the agreement whatsoever. Texas law is clear — an agreement involving real estate is subject to the statute of frauds. TEX. BUS. & COM. CODE §26.02(b)(4), (b)(5); Fears v. Texas, 247 S.W.ed 729, 735 (Tex.App. — Texarkana 2008; pet. denied). More specifically, an agreement involving a sale of real estate is subject to the statute of frauds. TEx. Bus. & COM. CODE §26.01(b)(4). Applying statutory law, the statute of frauds renders any agreement in the terms plead by Defendant as unenforceable if it does not comply with the writing and signing requirements of the statute. 24. Similarly, Defendant’s declaratory judgment action requires the existence of a written 10 Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App. — Houston [1st Dist.] 2000, no pet.) 1! See Defendant’s Original Answer and Counter-Claim filed in this case on October 13, 2020, pg. 1, 42 Page 7 of 10 contract, and simply by making the claim that the agreement was oral, Defendant invalidates her A party moving for traditional summary judgment can have such motion granted if they disprove at least one element of the plaintiffs cause of action or (b) plead and conclusively establish each essential element of an affirmative defense to rebut plaintiff's cause. Cathey v. Defendant’s cause of action for breach of contract is effectively disproven: the existence of a valid contract. Similarly, Defendant’s action for declaratory judgment is invalidated because a declaratory judgment requires a written instrument or document. Moreover, if “the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence,” it is not evidence that should be considered at Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Herein, Defendant offers not w evidence, but, no evidence at all. As such, Plaintiffis entitled to summary judgment. This is exactly what Second Court of Appeals had in mind when it opined that a party may not rest upon the allegations of its pleadings, but must present evidence that raises a genuine issue of fact as to all essential elements of its claims upon which it will bear the burden of proof at trial. Frazier v. Yu Accordingly, Defendant’s claims are outright baseless. If Defendant maintains that the agreement was in writing, she has failed to produce this agreement and Plaintiffis entitled to a no- evidence summary judgment on both the breach of contract and declaratory judgment actions. If Defendant maintains that the agreement was oral, then she has failed to provide specifics on that agreement and Plaintiff is entitled to a no-evidence summary judgment on both the breach of of contract and declaratory judgment actions. Furthermore, if the agreement was oral, then it is statutorily invalid under statute of frauds, and the Plaintiff is entitled to a traditional summary judgment because Defendant has had at least one element of her breach of contract claim disproven (i.e. that a valid agreement exists), and, has had her declaratory judgment invalidated by the agreement not being in writing. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that this Court GRANT this summary judgment and award him all such other relief to which he may be justly entitled. Respectfully submitted, ILIONSKY LAW, PLLC 2011 Leeland St., Suite 5 Houston, Texas 77003 Tel. (713) 482-1974 Fax. (832) 645-7497 By: /s/E. Z. Ilionsky E. Z. Ilionsky Texas Bar No. 24059992 ez@ilionsky.com Attorney for Plaintiff Emery Douglass Hollin Page 9 of 10 CERTIFICATE OF SERVICE I hereby certify that on November 29, 2020, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the pleading/instrument/document was served unto all parties. By: /s/E. Z. Ilionsky E. Z. Ilionsky Page 10 of 10 [>a ll ine NO. 20-DCV-276472 EMERY DOUGLASS HOLLIN IN THE DISTRICT COURT Plaintiff, V 240TH JUDICIAL DISTRICT TAMEKIA SHUNETTE MYERS Defendant. FORT BEND COUNTY, TEXAS PLAINTIFF’S FIRST COMBINED REQUEST FOR INTERROGATORIES AND REQUEST FOR PRODUCTION TO: Tamekia Shunette Myers, by and through its attorney of record, Jon Hill, Esq. Also, demand is hereby made under Rule 196 of the TEXAS RULES OF CIVIL PROCEDURE, that Defendant produce or permit the undersigned attorney, E. Z. Ilionsky, to inspect and copy or reproduce the items requested within. Within thirty (30) days after these requests for production, you must serve written responses to the undersigned attorney at 2011 Leeland St., Houston, Texas 77003, including the items requested or stating with respect to each request that an inspection and copying or reproduction will be permitted as requested. Finally, under Rules 190, 192, and 197 of the Texas Rules of Civil Procedure, Defendant is required to answer in complete detail and in writing each of the attached interrogatories; sign his answers to the interrogatories as required by rule 191.3(a) of the Texas Rules of Civil Procedure; swear to the truth of his answers before a notary public or other judicial officer as required by rule 197.2(d) of the Texas Rules of Civil Procedure or make an unsworn declaration as allowed by section 132.001 of the Texas Civil Practice and Remedies Code; and deliver a complete, signed, and notarized copy of his answers to the undersigned attorney within thirty (30) days following service of this request. Respectfully submitted, ILIONSKY LAW, PLLC 2011 Leeland St. Houston, Texas 77003 Tel. (713) 482-1974 Fax. (832) 645-7497 Page 1 of 4 By: /s/E. Z. Ilionsky E. Z. Ilionsky Texas Bar No. 24059992 ez@ilionsky.com Attorney for Emery Hollin Page 2 of 4 CERTIFICATE OF SERVICE I hereby certify that on October 15, 2020, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the pleading/instrument/document was served unto all required parties. By: /s/E. Z. Ilionsky E. Z. Ilionsky Page 3 of 4 COMBINED REQUESTS Request for Production #1 Please provide a copy of the agreement alluded to in your Defendant’s Original Answer and Counter-Claim, § 2, or more specifically, in the paragraph of your Defendant’s Original Answer and Counter-Claim which states, “Plaintiff and Defendant purchased the subject property under an agreement to generally share the expenses associated with the property, jointly manage the property, and upon sale, account for the expenses incurred by the parties and divide the remaining proceeds 50-50.” Interrogatory #1 If you contend that the aforementioned agreement described in Request for Production #1 was verbal, then please state the date and time of when it was entered into. Interrogatory #2 If you contend that the aforementioned agreement described in Request for Production #1 was verbal, then please state the name, address, telephone numbers, and, emails of any and all witnesses to such an agreement. Interrogatory #4 If you contend that the aforementioned agreement described in Request for Production #1 was verbal, then please state the address (or if address is unavailable, then nearest crossing streets) and city and state of where the agreement was entered into. Interrogatory #4 If you contend that Plaintiff should not receive auxiliary relief in Plaintiff's Original Petition in Suit for Partition § 18, please state the facts as to why you contend this. Page 4 of 4