Appellate Motion in MEGATEL C90-2, INC. vs. BANK OF UTAH, et al| Trellis.Law

On August 07, 2019 a Appellate Materials was filed involving a dispute between Megatel C90-2, Inc., and Aero Limo, Inc., Bank Of Utah, for OTHER CONTRACT in the District Court of Dallas County.

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VOLUME 1 OF 1
Trial Court Cause No. DC-19-11277
Appellate Case No. 05-22-01057-CV
In the 14th District Court of Dallas County, Texas
Honorable ERIC MOYE' Judge Presiding
________________________________________________________________________

MEGATEL C90-2, INC. AND ARMIN AFZALIPOUR AND MEGATEL HOMES, LLC
F/K/A MEGATEL HOMES, INC, Appellant(s)
Vs.
BANK OF UTAH, TRUSTEE AND AERO LIMO, INC, Appellee(s)

Appealed To The
Court Of Appeals For The 5TH District Of
Texas, At Dallas, Texas

Attorney for Appellant(s): * BELL NUNNALLY & MARTIN LLP

NAME: * PERRIN B FOURMY

ADDRESS: * 2323 ROSS AVENUE SUITE 1900
DALLAS TX 75201-2721

TELEPHONE NO.: * (214) 740-1400

FAX NO.: * (214) 740-1499

E-MAIL ADDRESS: * pfourmy@bellnunnally.com

SBOT NO.: * 24087535

ATTORNEY FOR: * DEFENDANT - BANK OF UTAH

Delivered To The Court Of Appeals
For The 5TH District Of Texas,
At Dallas, Texas

On the 23rd day of February, 2023

FELICIA PITRE
DISTRICT CLERK
DALLAS COUNTY, TEXAS

By SADAF RAJPUT, Deputy District Clerk

Page 1
DC-19-11277

§ IN THE DISTRICT COURT
§
§
MEGATEL C90-2, INC.
§ OF
VS.
§
BANK OF UTAH, ET AL
§
§
§ DALLAS COUNTY, TEXAS

INDEX

Document File Date Page

COVER SHEET SUPPLEMENTAL 02/23/2023 1-1

INDEX 02/23/2023 2-5

CAPTION 02/23/2023 6-6

DEFENDANT BANK OF UTAH'S FIRST 03/06/2020 7 - 17
AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES, AND
COUNTERCLAIMS

AGREED MOTION FOR CONTINUANCE 04/06/2020 18 - 20

NOTICE OF TRIAL 04/24/2020 21 - 21

AGREED MOTION FOR CONTINUANCE 08/14/2020 22 - 27

ORDER GRANTING AGREED MOTION FOR 08/20/2020 28 - 28
CONTINUANCE

PLAINTIFF'S DESIGNATION OF LEAD 01/25/2021 29 - 31
COUNSEL

AGREED MOTION FOR CONTINUANCE 03/25/2021 32 - 39

ORDER GRANTING AGREED MOTION FOR 04/14/2021 40 - 40
CONTINUANCE

Page 2
AFFIDAVIT OF NATHAN PEARMAN 05/25/2021 41 - 44

PLAINTIFF'S NOTICE OF APPEARANCE OF 08/11/2021 45 - 47
COUNSEL

NOTICE OF APPEARANCE AND REQUEST 08/11/2021 48 - 50
FOR SERVICE

DEFENDANT BANK OF UTAH'S MOTION TO 08/19/2021 51 - 75
ENFORCE CONTEMPT ORDER AND FOR
ADDITIONAL SANCTIONS

AGREED MOTION FOR CONTINUANCE 08/20/2021 76 - 82

NOTICE OF WITHDRAWAL OF COUNSEL 08/30/2021 83 - 85
PAUL M. BASS, III FOR PLAINTIFF

ORDER GRANTING AGREED MOTION FOR 08/31/2021 86 - 86
CONTINUANCE

ORDER GRANTING AGREED MOTION FOR 09/13/2021 87 - 87
ENTRY OF SANCTIONS PAYMENT

CORRESPONDENCE LETTER TO PAY 09/20/2021 88 - 89
SANCTIONS

ORDER GRANTING BANK OF UTAH'S 12/15/2021 90 - 91
MOTION FOR LEAVE TO FILE ITS THIRD
AMENDED ORIGINAL ANSWER AND
THIRD-PARTY PETITION AGAINST
MEGATEL HOMES, L.L.C. F/K/A MEGATEL
HOMES. INC

ORDER GRANTING BANK OF UTAH;S 01/20/2022 92 - 92
MOTION FOR LEAVE TO SUPPLEMENT
DESIGNATION OF EXPERT WITNESS.

PLAINTIFF'S AND THIRD-PARTY 02/10/2022 93 - 115
DEFENDANTS' TRIAL WITNESS LIST

DEFENDANTS' STIPULATED EXHIBITS 02/15/2022 116 - 118

ORDER OF POST TRIAL MEDIATION 04/04/2022 119 - 119

Page 3
INTERLOCUTORY ORDER OF DISMISSAL 04/04/2022 120 - 120

ORDER DENYING THE MEGATEL PARTIES' 07/12/2022 121 - 122
OBJECTIONS TO REQUEST FOR
ATTORNEY'S FEES AWARD

NOTICE OF JUDGMENT MAILED - V. 07/13/2022 123 - 123
CHISARA EZIE-BONCOEUR - BARNES &
THOMBURG

NOTICE OF JUDGMENT MAILED - PERRIN 07/13/2022 124 - 124
B FOURMY - BELL NUNNALLY & MARTIN
LLP

NOTICE OF JUDGMENT MAILED - NATHAN 07/13/2022 125 - 125
D PEARMAN - KEATING BROWN PLLC

DEFENDANT'S REQUEST FOR 02/16/2023 126 - 130
PREPARATION OF SUPPLEMENTAL
CLERK'S RECORD

COST BILL SUPPLEMENTAL 02/23/2023 131 - 131

CLERK CERTIFICATE 02/23/2023 132 - 132

Page 4
BLANK PAGE

Page 5
THE STATE OF TEXAS
COUNTY OF DALLAS

In the 14th District Court of Dallas County, Texas, the Honorable ERIC MOYE', Judge

Presiding, the following proceedings were held and the following instruments and other

papers were ﬁled in this cause, to wit:

Trial Court Cause No.: DC-19-11277

MEGATEL C90-2, INC. IN THE 14TH DISTRICT COURT

vs. OF

BANK OF UTAH, et al DALLAS COUNTY, TEXAS

Page 6
FILED
3/6/2020 2:58 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Gia Rodriguez DEPUTY

CAUSE NO. DC-19-11277

MEGATEL C90-2, INC. § IN THE DISTRICT COURT
§
Plaintiff, §
§
V. § DALLAS COUNTY
§
BANK OF UTAH, TRUSTEE AND §
AERO LIMO, INC. §
§
Defendants. § 14TH JUDICIAL DISTRICT

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS

Defendant Bank 0f Utah, not in its individual capacity but solely as owner trustee Via the

Trust dated May 28, 2012, (“Defendant” and “Counter-Plaintiff) hereby ﬁled this First Amended

Original Answer t0 Plaintiff Megatel C90-2, Inc. ’s (“Plaintiff’ and “Counter-Defendant”) Original

Petition and asserts the following Afﬁrmative Defenses and Counterclaims.

GENERAL DENIAL

1. Defendant generally denies the allegations in Plaintiff’s Original Petition, and any

and all amendments and supplements thereto, and demands strict proof thereof by a preponderance

0f the evidence. See TEX. R. CIV. P. 92.

AFFIRMATI$.E DEFENSES

2. Defendant asserts the following afﬁrmative defenses.

3. Plaintiffs claims are barred, in whole 0r in part, by the doctrine 0f unclean hands.

4. Plaintiffs claims are barred, in whole 0r in part, because Plaintiff failed t0

mitigate its damages.

5. Plaintiffs claims are barred, in whole 0r in part, by the doctrine 0f estoppel.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 1

Page 7
6. Plaintiffs claims are barred, in whole 0r in part, by the doctrine 0f waiver.

7. Plaintiffs claims are barred, in whole 0r in part, by proportionate responsibility.

8. Plaintiffs claims are barred, in whole 0r in part, by failure 0f consideration.

9. Plaintiff” s claims are barred, in whole 0r in part, by prior material breach.

10. Plaintiff” s claims are barred, in whole 0r in part, by ratiﬁcation.

11. Plaintiffs claims are barred, in whole 0r in part, by offset.

12. Plaintiffs claims are barred by failure t0 state a claim 0n which recovery may be

had.

13. Plaintiffs claims are barred, in whole 0r in part, by laches.

14. Plaintiff is not entitled t0 the recovery 0f attorneys’ fees.

III.

COUNTERCLAIMS

15. Counter-Plaintiff brings the following counterclaims against Counter-Defendant t0

recover damages suffered.

PLtieS

16. Counter-Plaintiff Bank 0f Utah, Trustee is a Utah Corporation.

17. Counter-Defendant Megatel C90-2, Inc. is a Texas corporation with its principal

place 0f business in Dallas County, Texas.

18. Upon information and belief, Defendant Aero Limo, Inc. is an unrelated entity

named in Plaintiff” s Original Petition, with n0 relevance t0 this lawsuit.

Discoverv Control Plan

19. Counter-Plaintiffrequests this case be governed by Level II Discovery, under Texas

Rule of Civil Procedure 190.3.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 2

Page 8
Venue and Jurisdiction

20. Venue is proper in Dallas County because Dallas County is the county in which a

substantial portion 0f the events and occurrences occurred giving rise t0 Counter-Plaintiff” s claims

and because Counter-Defendant’s principal place 0f business is in Dallas County. Further, venue

is proper as Counter-Defendant ﬁled its original suit in Dallas County, and has availed itself 0f

this Court’s venue and jurisdiction.

21. Jurisdiction is proper over Counter-Defendant because its principal place 0f

business is located in Dallas County.

22. Counter-Plaintiff seeks monetary relief over $200,000 but not more than

$1,000,000.

23. Counter-Plaintiff also seeks declaratory judgment and all other relief t0 which it

may be justly entitled. The damages sought are within the jurisdictional limits 0f the Court.

Relevant Factual Background

24. On 0r about August 4, 2015, Counter-Plaintiff and Counter-Defendant entered into

an Aircraft Lease (the “Lease”) that provided Counter-Defendant with the possession and use 0f a

1991 Cessna CE650 aircraft with Serial N0. 650-0201 and Registered as N777AL (the “Aircraft”)

subject t0 certain terms and conditions. The Aircraft is owned by Aereo Limo SA. de CV, who

granted authority t0 lease the Aircraft t0 Bank 0f Utah as Trustee.

25. The Lease was a “Dry Lease,” in that Counter-Plaintiff provided the aircraft without

crew 0r ground staff, and Counter-Defendant was provided with operational control 0f the Aircraft.

26. The Lease included certain terms and conditions, including:

a. Rent amount 0f $1 1,000.00 per month, t0 be paid 0n 0r before the
in the
ﬁfth day 0f each month without demand. Failure t0 make any payment
within ﬁve days 0f the due date places Counter-Defendant in default under
the Lease.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 3

Page 9
b. Rent continues to be due and owing during any period following return of
the Aircraft during which Counter-Plaintiff is obtaining work on the
Aircraft and such work is being performed to bring the Aircraft current on
all maintenance, inspections, and in as good operating condition as
appearance as when received and in airworthy condition as defined by the
Federal Aviation Regulations.

c. Counter-Defendant is responsible for expenses managing and maintaining
the Aircraft including, but not limited to pilots, hangar fees, day-to-day
maintenance, fuel, parts, insurance, and all inspections and maintenance
except for the Doc-8 inspection and engine overhauls.

d. Counter-Defendant is responsible for paying for flight hours, including a
minimum number of flight hours per year, regardless of whether those hours
were flown.

e. Counter-Defendant is required to keep complete and accurate records on the
Aircraft, including operational and maintenance records, in conformity with
all applicable rules and regulations. The Aircraft is not deemed returned
until such time as Counter-Defendant provides Counter-Plaintiff with a
complete copy of these records.

f. On or before the termination of the Lease, Counter-Defendant was required
to ensure the Aircraft was current on all maintenance, inspections, and in as
good operating condition as appearance as when received and in airworthy
condition as defined by the Federal Aviation Regulations.

g. Any logo of Counter-Defendant was required to be removed prior to
returning the Aircraft.

h. All payments due to Counter-Plaintiff, including past due rent, accrues
interest at the rate of 1.5% per month, or the maximum rate allowable by
law, from the date payment is due until such time as the past due payment
is made. Payment of interest on past due amounts is required to cure any
default for late payment.

27. After the Lease was executed, Counter-Plaintiff delivered the Aircraft to Counter-

Defendant. In violation of the Lease, Counter-Defendant was late on payments repeatedly during

the first two years of the Lease term, and failed to cure the resulting defaults.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 4

Page 10
28. In spite 0f this, 0n May 30, 2017, Counter-Plaintiff tried t0 work with Counter-

Defendant and agreed t0 execute an extension 0f the Lease through September 30, 2019 (the

“Amendment”).

29. At the time the Amendment was executed, Counter-Defendant admitted it owed

Counter-Plaintiff $49,655.32 for, inter alia, months 0f unpaid rent. Counter-Plaintiff agreed t0

waive $30,000.00 0f unpaid rent an accept payment 0f only $19,655.32. This was conditioned 0n

Counter-Defendant completing certain repair work 0n the Aircraft. A11 other terms 0f the Lease

remained in effect.

30. Counter-Plaintiff hoped that after execution 0f the Amendment, Counter-Defendant

would timely make all payments and abide by all requirements 0f the Lease. Unfortunately, that

was not the case. Counter-Defendant was repeatedly weeks 0r months late 0n payments, in

Violation 0f the Lease and the Amendment. Counter-Defendant failed t0 cure these breaches 0f

the Lease as required.

The Doc-8 Inspection

3 1. Under the Lease, the Amendment, and applicable United States regulations,

Counter-Defendant was responsible for maintaining the Aircraft. T0 evaluate the condition 0f the

Aircraft, Counter-Plaintiff was responsible for performing a “Doc-8” inspection 0n the Aircraft.

A Doc-8 inspection includes evaluation 0f the condition 0f the Aircraft and items in need of repair
0r maintenance, and is performed every 1,200 hours 0f ﬂight time 0r every 36 months, whichever

comes ﬁrst. Counter-Defendant was required t0 properly maintain the Aircraft in an airworthy

condition, and was responsible for any repairs 0r maintenance identiﬁed by the Doc-8 inspection.

32. Counter-Plaintiff informed Counter-Defendant in advance 0f the Doc-8 inspection

that it would be conducted in Monterrey, Mexico. On 0r about June 29, 2018, Aircraft was ﬂown

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 5

Page 11
by Counter-Defendant’s crew from Addison, Texas, to Monterrey, Mexico, to perform the Doc-8

inspection.

33. Upon receipt of the Aircraft in Monterrey, Counter-Plaintiff’s qualified mechanics

discovered that Counter-Defendant failed to properly maintain the Aircraft, including by failing to

perform required maintenance and inspections. Counter-Defendant had permitted the Aircraft to

fall into a dangerous state of disrepair.

34. Counter-Plaintiff’s qualified mechanics completed the Doc-8 inspection. The Doc-

8 revealed numerous repair and maintenance issues with the Aircraft, identified as “discrepancies.”

These discrepancies included, inter alia, broken strings in the rudder control cables, loose anchor

nuts in the wing fences, bearings worn beyond limits, broken wheel bolts, a leaking aileron

actuator, non-working emergency lights, and failures in internal displays. Had Counter-Defendant

been performing the required maintenance and repairs to keep the Aircraft properly maintained,

many of the discrepancies in the Doc-8 should have been previously addressed.

35. Due to the nature and extent of the discrepancies, the Aircraft was not in an

airworthy condition, and the discrepancies needed to be fixed prior to returning the Aircraft to

Counter-Defendant. Counter-Plaintiff was not willing to risk the lives of any individual, including

Counter-Defendant’s pilots, or violate Federal Aviation Regulations to fly the Aircraft back to

Dallas without first addressing these discrepancies.

36. Counter-Plaintiff informed Counter-Defendant of the numerous discrepancies and

indicated the discrepancies needed to be repaired. Under the Lease, Counter-Defendant was

responsible for the cost of addressing the discrepancies. In spite of this, Counter-Defendant

refused to pay for the repairs and maintenance needed to place the Aircraft in airworthy condition.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 6

Page 12
37. At the same time, Counter-Defendant continued t0 refuse t0 pay rent and other

payments as they came due under the Lease, including rent and payments that were past due before

the Doc-8 inspection was performed.

38. Counter-Defendant’s refusal t0 pay for the required repairs uncovered by the Doc-

8 inspection, including those necessary t0 place the Aircraft in airworthy condition, continued a

pattern 0f behavior Counter-Defendant exhibited throughout the Lease 0f failing t0 make timely

payments, failure t0 pay for required maintenance, and failure t0 comply with the terms 0f the

Lease and the Amendment.

39. The Lease, pursuant t0 the Amendment, expired 0n September 30, 2019. However,

in spite 0f that, Counter-Defendant has failed t0 comply with all requirements under the Lease t0

return the Aircraft, including failure t0 return the Aircraft current 0n all maintenance, inspections,

and in as good operating condition as appearance as when received and in airworthy condition as

deﬁned by the Federal Aviation Regulations.

40. Counter-Defendant failed t0 pay and continues t0 fail t0 pay at least the following

amounts:

DESCRIPTION OF ITEM AMOUNT DUE
MSP Gold Flight hours
[May/June 20 1 8] $ 18,842.00
MSP Gold Hours Not Flown
[Aug. 2017 - Aug. 2018] $ 8,164.00
MSP Gold Hours Not Flown
[Aug. 201 8 - Aug. 2019] $ 77,838.00
Rent
[June 201 8 — September 20 1 9] $ 176,000.00
CESCOM Platform Annual Renewal $ 5,525.00
Discrepancies $ 178,5 80.00
Annual Subscription t0 Navigation Database $ 3,837.00
Renewal 0f Navigation Database
[June 201 8 - September 2019] $ 5,655.00

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 7

Page 13
DESCRIPTION OF ITEM AMOUNT DUE
Renewal Permits for Stay $ 2,456-00

Unpaid Landing fees $ 522.00
Daily Hangar Rent
[N0V. 201 8 - June 2019] $ 36,965.00
Remove Megatel Logo $ 1,450.00
Renewal 0f Helmet of the Plane Insurance $ 22,100.00
AMOUNT DUE $ 537,934.00

41. Counter-Defendant agreed under the Lease and the Amendment t0 pay interest 0n

all past due payments at 1.5% per month or the maximum rate allowable by law. Counter-

Defendant owes interest 0n all late paid rent following execution 0f the Amendment, which sums

are not included in Paragraph 40. Counter-Defendant also owes interest 0n all amounts identiﬁed

in Paragraph 40 and all other payments due under the Lease and the Amendment, which sums are

not included in Paragraph 40.

42. Despite written demand, Counter-Defendant refused t0 pay and continues t0 refuse

t0 pay the amounts due under the Lease and the Amendment. After application 0f all credits and

offsets, the amount 0f at least $537,934.00; plus pre-judgment interest at 1.5% per month, 0r the

maximum rate allowable by law, 0n all past due payments; attorneys’ fees; costs; and expenses is

immediately due pursuant t0 the Lease and the Amendment.

Causes 0f Action

Count One — Breach 0f Contract

43. Each 0f foregoing paragraphs are incorporated and reasserted herein by reference.

44. Counter-Plaintiff entered into the Lease and the Amendment with Counter-

Defendant.

45. Counter-Plaintiff performed its obligations under the Lease and the Amendment.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 8

Page 14
46. Counter-Defendant repeatedly breached the Lease and the Amendment, including

by failing to pay rent, failing t0 make all payments due under the Lease and the Amendment,

failing t0 cure defaults under the Lease and Amendment, failing t0 maintain the Aircraft as

required, failure t0 comply with applicable rules and regulations, and failing t0 return the Aircraft

in proper condition.

47. Counter-Plaintiff has been damaged as a result 0f Counter-Defendant’s material

breaches 0f the Lease and the Amendment in an amount t0 be determined.

Count Two — Declaratory Judgment

48. Each 0f foregoing paragraphs are incorporated and reasserted herein by reference.

49. In the alternative, and without waiving the foregoing, Counter-Defendant is in

default under the Lease and the Amendment, including by failing to pay rent, failing to make all

payments due under the Lease and the Amendment, failing t0 cure defaults under the Lease and

Amendment, failing to maintain the Aircraft as required, failure t0 comply with applicable rules

and regulations, and failing t0 return the Aircraft in proper condition.

50. Counter-Defendant further failed t0 comply with all requirements t0 terminate the

Lease prior t0 September 30, 2019, and further failed t0 comply with all requirements t0 return the

Aircraft at the expiration 0f the Lease and Amendment.

51. Counter-Plaintiff seeks a declaration that Counter-Defendant has defaulted under

the Lease and the Amendment. Additionally, Counter-Plaintiff seeks a declaration that the Lease

continued through September 30, 2019, all payments thereunder were due t0 Counter-Plaintiff,

and that Counter-Defendant has failed t0 comply with all requirements 0f the Lease and the

Amendment t0 return the Aircraft.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 9

Page 15
Count Three — Attornevs’ Fees

52. The foregoing paragraphs are incorporated and reasserted herein by reference.

53. Counter-Plaintiff previously presented Counter-Defendant with written demand for

its claims. Despite demand, Counter-Defendant failed and refused t0 pay the amounts due 0r

comply with the Lease and Amendment. As a result, Counter-Plaintiff has been required t0 retain

the law ﬁrm of Bell Nunnally & Martin LLP to enforce Counter-Plaintiff” s rights and has agreed
t0 pay the ﬁrm a reasonable fee for its services. Counter-Plaintiff has incurred, and will continue

t0 incur, reasonable attorneys' fees, which it seeks t0 recover as damages from Counter-Defendant

pursuant t0 the terms 0f the Lease, the Amendment, and applicable law.

Conditions Precedent

54. A11 conditions precedent t0 Counter-Plaintiffs recovery against Counter-

Defendant have been fully performed, have occurred, 0r have been waived.

WHEREFORE, PREMISES CONSIDERED,
m Counter-Plaintiff Bank 0f Utah requests

Counter-Defendant Megatel C90-2, Inc. be cited t0 appear and answer these counterclaims, and

upon ﬁnal hearing that Bank 0f Utah, have judgment against Megatel C90-2, Inc. as follows:

a. Damages in the principal amount 0f at least $537,934.00;

b. Pre- and post-judgment interest at the maximum rate allowed by the Lease, the
Amendment, and applicable law;

c. Reasonable attorneys’ fees and expenses for pre-trial, trial, and any subsequent
appeal and petitions for review;

d. A11 costs 0f suit; and

e. A11 such other and further relief, at law and in equity, to which Counter-Plaintiff
may be entitled in law 0r equity.

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 10

Page 16
Respectfully submitted,

BELL NUNNALLY & MARTIN LLP

By: /s/ Perrin B. Fourmv
Perrin B. Fourmy
State Bar No. 24007648
pfommv@bellnunnally.com
Jeffrey S. Lowenstein
State Bar No. 24007574
ilowenstein@bellnunnally.com

2323 Ross Avenue, Suite 1900
Dallas, Texas 7520 1 -2721
Telephone: (2 1 4) 740- 1 400
Facsimile: (2 1 4) 740- 1 499

ATTORNEYS FOR
BANK OF UTAH

CERTIFICATE OF SERVICE

The undersigned certiﬁes that a true and correct copy 0f the foregoing instrument was
served on the following in the manner speciﬁed below, on March 6, 2020.

VIA EFILE.TXCOURTS.GOV

David M. Jones
Hesse and Hesse, P.C.
5560 Tennyson Parkway, Ste. 250
Plano, TX 75024

Attorneyfor Megatel C90-2, Inc.

/s/ Perrin B. Fourmv
Perrin B. Fourmy

4991 1 16_1.d0cx

DEFENDANT BANK OF UTAH’S FIRST AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFNSES, AND COUNTERCLAIMS PAGE 11

Page 17
FILED
4/6/2020 5:11 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
Carol Langley-Brewer DEPUTY

Cause N0. DC-19-11277

MEGATEL C90-2, INC. § IN THE 14th JUDICIAL
§
§
Plaintiff, §
§
v. § DISTRICT COURT OF
§
BANK OF UTAH, TRUSTEE AND §
AERO LIMO, INC. §
§
Defendant. § DALLAS COUNTY, TEXAS

AGREED MOTION FOR CONTINUANCE
TO THE HONORABLE JUDGE OF SAID COURT:

Come now, Plaintiff Megatel C90-2, Inc. (“Plaintiff”) and ﬁles this Agreed Motion for

Continuance, and would respectfully show the Court as follows:

1. Plaintiff ﬁled this case against Defendants 0n 0r about August 9, 2019.

2. Trial is presently set for August 4, 2020.

3. This is the ﬁrst request for a continuance by either Party.

4. The Parties request a ninety (90) day continuance of the trial setting and all related

discovery deadlines due to difﬁculties encountered in coordinating a diligent prosecution ofthe case

with the current coronavirus concerns and standing government orders. This difﬁculty includes, but

is not limited t0, interviewing and deposing witnesses.

II.

5. This continuance is not sought solely for delay but that justice may be done. A
continuance Will serve the interest ofjustice by ensuring that both parties have all the necessary

Agreed Motion for Continuance PAGE 1

Page 18
relevant documentation in this matter.

III.

6. This Motion is agreed to by counsel for Defendant.

IV.

WHEREFORE, PREMISES CONSIDERED, the Parties pray that the Court grant this

Agreed Motion for Continuance, vacate the current trial date and remove this case from the current

docket and reset it for trial 0n a date no earlier than November 9, 2020.

Respectfully submitted

Hesse & Hesse, P.C.

/s/Daw'a’M [ones
David M. Jones
StateBar N0. 24042684
djones@hesselaw.c0m
5560 Tennyson Pkwy, Ste. 250
Plano, Texas 75024
Tel: 972.503.9800
Fax: 972.503.9801

ATTORNEY FOR PLAINTIFF
MEGATEL HOMES, LLC.

AGREED AS TO SUBSTANCE AND FORM:

/s/ Perrin B. Fourmv
Perrin B. Fourmy
pfourmv@bellnunnallv.com
2323 Ross Avenue, Suite 1900
Dallas, Texas 75201
Tel 214-740-1436
COUNSEL FOR DEFENDANT BANK OF UTAH, TRUSTEE

Agreed Motion for Continuance PAGE 2

Page 19
CERTIFICATE OF SERVICE

Ihereby certify that a true and correct copy of the foregoing document was delivered t0 all
counsel of record in accordance with Rule 21a 0f the Texas Rules 0f Civil Procedure, Via fax 0r by
electronic delivery for those counsel available through the e-ﬁling system, on this the 6th day of
April, 2020.

Via eFile
Perrin B. Fourmy
pfoumv®bellnunnallvcom
2323 Ross Avenue, Suite 1900
Dallas, Texas 75201
Tel 214-740-1436
Counsel for Defendant Bank of Utah, trustee

David
/s/ M Jones
David M. Jones

Agreed Motion for Continuance PAGE 3

Page 20
14TH JUDICIAL DISTRICT COURT
GEORGE L. ALLEN COURTS BUILDING
600 COMMERCE STREET
DALLAS, TEXAS 75202-4604
4/24/2020

File Copy

DC-19-1 1277
MEGATEL C90-2, INC. vs. BANK OF UTAH, et a1

ALL COUNSEL OF RECORD/PRO SE LITIGANTS:

PLEASE TAKE NOTE OF THE FOLLOWING SETTING:

NON - JURY TRIAL: November 10, 2020 at 9:30 AM
TRIAL ANNOUNCEMENTS MUST BE MADE IN ACCORDANCE WITH RULE 3.02, LOCAL
RULES OF THE CIVIL COURTS OF DALLAS COUNTY, TEXAS.

WHEN NO ANNOUNCEMENT IS MADE FOR DEFENDANT, DEFENDANT WILL BE PRESUMED
READY. IF PLAINTIFF FAILS TO ANNOUNCE OR TO APPEAR AT TRIAL, THE CASE WILL BE
DISMISSED FOR WANT OF PROSECUTION IN ACCORDANCE WITH RULE 165a, TEXAS
RULES OF CIVIL PROCEDURE.

Sincerely,

ERIC V. MOYE, DISTRICT JUDGE
14TH DISTRICT COURT
Dallas County, Texas
Cc:
PERRIN B FOURMY
2323 ROSS AVE SUITE 1900
DALLAS TX 75201
DAVID JONES
5560 TENNYSON PARKWAY STE 250
PLANO TX 75024

Page 21
FILED
8/14/2020 4:32 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY

CAUSE NO. DC-19-11277

MEGATEL C90-2, INC., § IN THE DISTRICT COURT
§
Plaintiff, §
§
V. § DALLAS COUNTY, TEXAS
§
BANK OF UTAH, TRUSTEE and §
AERO LIMO, INC., §
§
Defendants. § 14TH JUDICIAL DISTRICT

AGREED MOTION FOR CONTINUANCE

TO THE HONORABLE JUDGE OF SAID COURT:

Come now, Bank 0f Utah, Trustee (“Bank 0f Utah”) and ﬁles this Agreed Motion for

Continuance, and would respectfully show the Court as follows:

1. Plaintiff ﬁled this case against Defendants 0n 0r about August 9, 2019.

2. Bank 0f Utah ﬁled its Answer 0n October 17, 2019, and its First Amended

Original Answer and Counterclaims 0n March 6, 2020. Defendant Aero Limo, Inc. has not made

an appearance in this case.

3. This court set an initial trial date 0f August 4, 2020. Plaintiff ﬁled an Agreed

Motion for Continuance 0n April 6, 2020, which was granted by this Court. This Court reset trial

for November 10, 2020.

4. This is the second request for a continuance by either Party.

5. This case involves a dispute over payments due under an Aircraft Lease in which

Plaintiff leased an Aircraft from Bank of Utah. Plaintiff seeks a determination from this Court

that it has not breached the Lease, and n0 payments are due. Bank 0f Utah has ﬁled

counterclaims for breach 0f the Lease and failure t0 pay over $537,934.00 for maintenance,

AGREED MOTION FOR CONTINUANCE Page 1

Page 22
repairs, unpaid rent, and numerous additional charges. A primary dispute between the Parties

relates to an inspection of the Aircraft that took place in Monterrey, Mexico, and necessary

repairs of the Aircraft by mechanics in Mexico. Several of the key witnesses live and work in

Mexico, including the mechanics who performed the inspection and Parties who managed the

Lease. The Aircraft is also currently located in Mexico. The Parties have exchanged written

discovery and have mediated this case.

6. The COVID-19 pandemic has continued to cause difficulties conducting

discovery in this case, including depositions of key witnesses, and it is anticipated that there will

be similar difficulties with witnesses and Parties attending the current trial setting.

7. Government orders and recommendations and the Parties’ internal corporate

regulations have greatly limited international travel between Mexico and the United States. This

has limited the ability of the Parties to conduct all discovery. The Parties believe the current

risks related to COVID-19 and its recent resurgence will create difficulties for key witnesses to

travel from Mexico to attend trial in Dallas. The Parties anticipate that one or more witnesses

may require an interpreter, disfavoring the use of remote testimony.

8. The Parties are also concerned there may be prohibitions on travel or attendance

at Court when the trial is currently set, and proactively request a continuance so no such request

is made on the eve of trial. Many of the anticipated witnesses will be required to coordinate

travel from Mexico or other states.

9. The Parties request a six month continuance of the trial setting and all deadlines

due to difficulties encountered in coordinating a diligent prosecution and defense of the case with

the current COVID-19 concerns, government orders, and internal corporate guidelines related to

travel. This difficulty includes, but is not limited to, interviewing and deposing witnesses and

AGREED MOTION FOR CONTINUANCE Page 2

Page 23
witness attendance at trial. The Parties also seek a continuance to allow discovery to continue

and help narrow down the disputed issues between the Parties prior to trial.

10. In the event travel restrictions or the effects of COVID-19 still impair the ability

of the Parties to conduct discovery or of witnesses to attend the continued trial date, the Parties

will work together with each other and the Court to reach accommodations or request a trial

setting when such impediments no longer exist.

II.

11. This continuance is not sought solely for delay but that justice may be done. A

continuance will serve the interest of justice by ensuring that both Parties are able to conduct all

the necessary relevant discovery in this matter, all necess

Case Info

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Document Filed Date

March 08, 2023

Case Filing Date

August 07, 2019

County

Parties

Aero Limo, Inc. Defendant
Bank of Utah Defendant
BASS, PAUL M, III Attorney for the Plaintiff
EZIE-BONCOEUR, V. CHISARA Attorney for the Plaintiff
FOURMY, PERRIN B Attorney for the Defendant
JOHNSON, ANNE M Attorney for the Plaintiff
JONES, DAVID Attorney for the Plaintiff
Megatel C90-2, Inc. Plaintiff
PEARMAN, NATHAN D Attorney for the Plaintiff
VITAL, VICTOR D Attorney for the Plaintiff
Jeffrey Lowenstein Attorneys for Defendants
Valerie Ezie-Boncoeur Attorney
Alexander McLean Attorneys for Plaintiffs
Beverly Whitley Attorneys for Defendants

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Appellate Materials: MEGATEL C90-2, INC. vs. BANK OF UTAH, et al

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