Preview
Fad NO. de
APE-28-2019 MON 10:18 AH
CAUSE NO, 2009-54499
VJ FILED
THEPLANET.COM INTERNET IN THE DISTRICT GOLREBE
SERVICES, INC.,
APR 27 2010
Plaintiff, Tima. een
Be: @
v HARRIS COUNTY RIB: Ag = a7ns
SMASH EMPIRE, INC. &
BENJAMIN GUILD,
Defendants. 8 164TH JUDICIAL DISTRICT
MOTION FOR JUDGMENT ON AGREED STATEMENT OF FACTS
Plamtiff and defendants ask the court to sign a judgment in this case on their agrced
statement of facts, in accordance with Texas Rule of Civil Procedure 263.
A. Jntroduction
1 Plaintiff isThePlanet.com Internet Serviccs, Inc.; defendants are Smash Empire,
Inc. and Benjamin Guild.
a2 Plaintiff sued defendants for a declaratory judgment that plaintiff provided goods
and services to defendants pursuant lo a valid and enforceable contract, for which defendants
paid, and that there was no basis for plaintiff to rctum any portion of the payments made by
defendants, Defendants answered on November 3, 2009, asserting a general denial; affirmative
defenses of failure of conditions precedent, unclean hands, and misrepresentation, and
counterclaims for breach of contract, misreprescntation, and false and deceptive acis under
Massachusetts General Laws Chapter 934 In response to plaintiff's special exceptions, on
scember 9, 2009, deicrdants filed their first amended answer, asserting a general denial;
affirmative defenses of favfure of conditions precedent, unclean hands, and misrepresentauon;
and counterclaims for breach of contract, fraudulent or negligent misrepresentation, fraud by
AGS
5P 4
APR-26-2310 MON 10:15 At Frid NO, e3
nondisclosure, and fatsc and deceptive acts under the Texas Deceptive Trade Practices Act.
B, Facts
3
On April 13, 2010, plaintiff and defendants cxccuted an agreed statement of facts
under Rule 263.
4 The statement of facts is attached to this motion as Exhibit A and incorporated by
reference.
C. Argument & Authoritie:
5. The purpose of a motion for judgment on an agreed statement of facts is to ask the
trial court to render a decision on the law when the facts are not in controversy. See Tex. R. Civ.
P. 263; State Bar v. Faubion, 821 S.W.2d 203, 205 (fex. App.—Houston [14th Dist.] 1991, writ
denied). A case resolved under Rule 263 is in the nature of a special verdict. Tarrant Appraisal
Review Bd. v. Martinez Bros. Invs., 946 S.W.2d 914, 917 (Tex. App.—Fort Worth 1997, no
writ).
oO. Rule 263 requires that the parties agece on all ultimate facts essential for the
determination of the lawsuit, leaving to the court only the function of deciding questions of law.
‘The parties agree on all ulttmate facts cssential for the determination of the lawsuit. They agree
that the facts in the agreed statement of facts are all the facts of the casc, and they agree that
those are the facts on which this case must be decided. See Cummins & Walker Oil Co. v. Smith,
814 S.W.2d 884, 886 (Tex. App.—San Antonio 1991, no writ). No other facts are relevant to the
Gisposition of this lawsuit.
>;
/ The court cannot draw any inferece or find any facts not recited in the agreed
statement, Lawler v. Lomas & Nettleton Mortgage Investors, 691 S.W.2d 593, 595 (Tex. 1985);
see Diamant Shemrock Ref. & Mig. Co. v. Nueces County Appraisal Dist., 876 S.W.2d 298,
i 39) 22
APR-26-2019 MCN 10:18 AN FAX NO, P, 04
301 n.2 (Tex. 1994).
D, Conclusion and Prayer
8 For these reasons, plaintiff and defendants ask the court to certify the agreed
statement of facts and resolve the controversy between the partics by signing a judgment on the
agrced facts.
Respcectfuliy Submitted,
STRELE Sturm, PLLC
‘s/ Towa ard L. Steele, Jr.
(HOWARD L. STEEL, JR.
TBN: 24002999
MICHAEL SAMFORD
TBN: 17555650
1000 Loutstana, Suite 3780
ELOUSTON, TEXAS 77002
TELEPHONE: (713) 659-2600
FACSIMIL! (713) 659-2601
ATTORNEYS FOR PLAINTIFF
-AND-
COTTON SCHMIDT & ABBOTT, L.L.P.
Michael B. Kivort
Michael B. Kivort
Texas Bar No. 00787843
1360 Post Oak Boulevard, Suite 1700
Llouston, Texas 77056
Telephone: 713-627-9393
Facsimile: 713-627-9395
ATTORNEYS FOR DEFENDANTS
AND COUNTER-PLAINTIFFS
nos tsi9a, 23
APR-26-2015 MON 10:18 AM Fad NO. P, 05
CERTIFICATE OF SERVICE
Thereby cerlify that a truc and correct copy of the foregoing instrument has been served
on April 13, 2010 upon the following counscl of record by facsimile and/or e-mail delivery
and/or certified mail, ccturn receipt requested, as follows:
Michael B. Kivort
1360 Post Oak Boulevard, Suite 1700
Houston, Texas 77056
/s/ Howard L. Steele, Jr.
Howard L. Steele, Jr.
LO:
Preview
Fad NO. de APE-28-2019 MON 10:18 AH CAUSE NO, 2009-54499 VJ FILED THEPLANET.COM INTERNET IN THE DISTRICT GOLREBE SERVICES, INC., APR 27 2010 Plaintiff, Tima. een Be: @ v HARRIS COUNTY RIB: Ag = a7ns SMASH EMPIRE, INC. & BENJAMIN GUILD, Defendants. 8 164TH JUDICIAL DISTRICT MOTION FOR JUDGMENT ON AGREED STATEMENT OF FACTS Plamtiff and defendants ask the court to sign a judgment in this case on their agrced statement of facts, in accordance with Texas Rule of Civil Procedure 263. A. Jntroduction 1 Plaintiff isThePlanet.com Internet Serviccs, Inc.; defendants are Smash Empire, Inc. and Benjamin Guild. a2 Plaintiff sued defendants for a declaratory judgment that plaintiff provided goods and services to defendants pursuant lo a valid and enforceable contract, for which defendants paid, and that there was no basis for plaintiff to rctum any portion of the payments made by defendants, Defendants answered on November 3, 2009, asserting a general denial; affirmative defenses of failure of conditions precedent, unclean hands, and misrepresentation, and counterclaims for breach of contract, misreprescntation, and false and deceptive acis under Massachusetts General Laws Chapter 934 In response to plaintiff's special exceptions, on scember 9, 2009, deicrdants filed their first amended answer, asserting a general denial; affirmative defenses of favfure of conditions precedent, unclean hands, and misrepresentauon; and counterclaims for breach of contract, fraudulent or negligent misrepresentation, fraud by AGS 5P 4 APR-26-2310 MON 10:15 At Frid NO, e3 nondisclosure, and fatsc and deceptive acts under the Texas Deceptive Trade Practices Act. B, Facts 3 On April 13, 2010, plaintiff and defendants cxccuted an agreed statement of facts under Rule 263. 4 The statement of facts is attached to this motion as Exhibit A and incorporated by reference. C. Argument & Authoritie: 5. The purpose of a motion for judgment on an agreed statement of facts is to ask the trial court to render a decision on the law when the facts are not in controversy. See Tex. R. Civ. P. 263; State Bar v. Faubion, 821 S.W.2d 203, 205 (fex. App.—Houston [14th Dist.] 1991, writ denied). A case resolved under Rule 263 is in the nature of a special verdict. Tarrant Appraisal Review Bd. v. Martinez Bros. Invs., 946 S.W.2d 914, 917 (Tex. App.—Fort Worth 1997, no writ). oO. Rule 263 requires that the parties agece on all ultimate facts essential for the determination of the lawsuit, leaving to the court only the function of deciding questions of law. ‘The parties agree on all ulttmate facts cssential for the determination of the lawsuit. They agree that the facts in the agreed statement of facts are all the facts of the casc, and they agree that those are the facts on which this case must be decided. See Cummins & Walker Oil Co. v. Smith, 814 S.W.2d 884, 886 (Tex. App.—San Antonio 1991, no writ). No other facts are relevant to the Gisposition of this lawsuit. >; / The court cannot draw any inferece or find any facts not recited in the agreed statement, Lawler v. Lomas & Nettleton Mortgage Investors, 691 S.W.2d 593, 595 (Tex. 1985); see Diamant Shemrock Ref. & Mig. Co. v. Nueces County Appraisal Dist., 876 S.W.2d 298, i 39) 22 APR-26-2019 MCN 10:18 AN FAX NO, P, 04 301 n.2 (Tex. 1994). D, Conclusion and Prayer 8 For these reasons, plaintiff and defendants ask the court to certify the agreed statement of facts and resolve the controversy between the partics by signing a judgment on the agrced facts. Respcectfuliy Submitted, STRELE Sturm, PLLC ‘s/ Towa ard L. Steele, Jr. (HOWARD L. STEEL, JR. TBN: 24002999 MICHAEL SAMFORD TBN: 17555650 1000 Loutstana, Suite 3780 ELOUSTON, TEXAS 77002 TELEPHONE: (713) 659-2600 FACSIMIL! (713) 659-2601 ATTORNEYS FOR PLAINTIFF -AND- COTTON SCHMIDT & ABBOTT, L.L.P. Michael B. Kivort Michael B. Kivort Texas Bar No. 00787843 1360 Post Oak Boulevard, Suite 1700 Llouston, Texas 77056 Telephone: 713-627-9393 Facsimile: 713-627-9395 ATTORNEYS FOR DEFENDANTS AND COUNTER-PLAINTIFFS nos tsi9a, 23 APR-26-2015 MON 10:18 AM Fad NO. P, 05 CERTIFICATE OF SERVICE Thereby cerlify that a truc and correct copy of the foregoing instrument has been served on April 13, 2010 upon the following counscl of record by facsimile and/or e-mail delivery and/or certified mail, ccturn receipt requested, as follows: Michael B. Kivort 1360 Post Oak Boulevard, Suite 1700 Houston, Texas 77056 /s/ Howard L. Steele, Jr. Howard L. Steele, Jr. LO: