Friday, October 7, 2011

OUR STORY Part 73: UNCOMFORTABLE COINCIDENCES FROM AN ATTORNEY'S VIEW!

Just received this blog from our attorney. 10/7/2011 Judge Graham Quisenberry Refuses to Try Rees Atkins and Piper Pardue on Real Estate Fraud   By Evin G. Dugas, Esq.

10/7/2011
Judge Graham Quisenberry Refuses to Try Rees Atkins and Piper Pardue on Real Estate Fraud



Rees Atkins and Piper Pardue were hired to sell a property for a seller in Azle, Texas. The property address is 127 Rodeo Drive, Azle, Texas. During the listing, Rees Atkins determined that the house was in a flood zone and built on top of a county drainage easement dedicated to the County because an unnamed tributary literally ran through the property. The house was built directly on top of the unnamed tributary, the drainage easement and the flood zone.

Rees Atkins & Piper Pardue realized the property could not be sold if the house was on a drainage easement and in a flood zone. Consequently, Atkins sent an email to the title company and requested that they somehow change the legal designation of the house being in the flood zone and the drainage easement. This, of course could not be done just because it would slow down sales. Rees Atkins acknowledged in the email that the house could not sell until those matters were resolved. The email is listed below.

Along comes a buyer, Mike & Annette Daniel, who are represented by Deborah Moran. Atkins never discloses what he already knows and is trying to change about the flood zone and drainage easement. Instead, he asks his mortgage friend, Reid Mitchell, who is the son-in-law of the owner of Century 21 Lynch, the employer and broker for Pardue and Atkins, to get a flood certification. He does this because the one obtained by the mortgage company for the Daniels shows the house is in the flood zone. So Reid Mitchell says he is helping the seller on buying his next house and knows that his mortgage company financed the house. Instead of merely going into his own files where his mortgage company had a flood certification, Mitchell orders a new study and this one says that the house and property are not in the flood zone. This is given to the buyer's mortgage company and it proceeds to closing. The sale is back on track.

Then, Piper Pardue produces a so called Release of Drainage Easement. It was sent to the buyers to convince them that the house was not in a drainage easement. It was a lie and it did not apply to the private property where the house sat.

So the house is sold and Rees Atkins and Piper Pardue never acknowledge what they know and represent in the email. Later, they deny knowing any of it because they thought the email was destroyed.

A lawsuit is filed in Parker County, Texas and it lands in Judge Graham Quisenberry's court. The case is set for trial three times and the attorney for Pardue and Atkins files a Motion for Continuance claiming health reasons three times. The third time is denied and the case is called to trial. On the day of trial, the attorney for Pardue and Atkins again makes his fourth motion for continuance of the trial and then while in the Judge's office, the attorney "collapses". The quotes are because nothing really happened other than he acted like he was woozy. Judge Graham Quisenberry then indicated the case would be continued.

The plaintiffs elected to try the case against their own realtor, Deborah Moran, and dismiss the case against Pardue and Atkins and refile it against them later so that the case against Moran could proceed.

The case was tried against Moran, the buyer's realtor, and the jury found Deborah Moran committed statutory fraud or fraud in a real estate transaction in violation of Chapter 27 of the Texas Business & Commerce Code. The jury also found that Moran committed knowing violations of the Texas Deceptive Trade Practices Act. The jury awarded $150,000 in punitive or exemplary damages and attorneys fees. The jury did not award actual damages. This meant the jury verdict was inconsistent with itself but Judge Graham Quisenberry refused to correct the matter.

A new suit was filed against Piper Pardue and Rees Atkins. They refused to answer based on their attorney, so successful in delays, advice. A default judgment was filed and at the hearing, Judge Graham Quisenberry went to his office before he signed the Default Judgment and called the attorney for Atkins and Pardue and told him to answer the lawsuit. The attorney refused based on his ignorance of the law. The judge signed the default judgment for $1.2 million dollars which represented the price of the house and additional damages allowed by the Texas Deceptive Trade Practices Act. He then stated, "I'm probably not going to let you keep it."

He was true to his word. On that.

After the judgment was entered, Atkins and Pardue filed their answers and asked the Judge Quisenberry to overturn the default judgment. Eight months after the trial with Moran - the trial where the attorney became "woozy" in Judge Quisenberry's office - there was finally an answer. Another successful delay of justice.

Once the Default Judgment was thrown out by Judge Quisenberry, Pardue and Atkins were back before the Court. But this time they had no attorney. Their insurance carrier fired the law firm. What is interesting is how they would have known the law firm made any mistakes. It could have come from the law firm. Or even the clients. Not to mention the court.

At that point, the law firm for Pardue and Atkins withdrew or quit. Multiple requests were made to the Court to set the case for trial. All of the discovery had taken place. The case only needed a trial. But the court - Judge Quisenberry- refused. Even when there was no law firm or attorney of record, the Judge refused to grant a trial date, even though the lawyers for Pardue and Atkins had just wasted eight months and shunned their noses at the duty to answer a lawsuit.

Eventually, within about three weeks from the overturn of the Default Judgment, an attorney named Brent Lee in Dallas contacted Plaintiffs attorney and indicated he was reviewing the file and considering entering an appearance to represent Pardue and Atkins.

This was most unusual since law firms rarely turn down hourly business from an insurance company. There were obviously no conflicts of interest since he was reviewing the file. After he had reviewed the file, he indicated his firm was going to pass on representing Pardue and Atkins.

At that point, the Court - Judge Quisenberry- still refused to set the case for trial. It was now nine months later and the Court did nothing to penalize Pardue and Atkins' disdain for the rules of procedure by ignoring the duty to answer the suit.

And then a new lawyer entered the case. This lawyer was not a real estate attorney nor was he an insurance defense attorney. He was connected to Judge Quisenberry. He was close friends with the Judge's nephew and played in a band with the younger Quisenberry. How these defendants ended up with a law firm that did not normally do real estate defense or insurance defense is very odd.

So Judge Quisenberry's nephew's bandmate enters the case. The Court still won't give a trial date. Eventually, the Court sets the date in October.

The new attorney calls up Plaintiffs' counsel and advises him to take the sum of $20,000 or else the case will be dismissed. A lot of attorneys have confidence. This one spoke as if it was a foregone conclusion that the case against Pardue and Atkins would never see the light of day and he had only been on the case one day. This was puzzling since the facts in the case were devastating to Pardue and Atkins.

When a powerpoint presentation from the mediation in the earlier case was given to the attorney, he dismissed it as irrelevant. This was highly unusual behavior from any attorney and especially one who just entered a case and really knew nothing about witness demeanors, etc. He also seemed to know an inordinate amount about the trial.

He was aware of nuances that only the Plaintiff attorney, the attorney for Moran and the Judge would know.

The attorney for Moran claims he never spoke to the new attorney for Pardue and Atkins. Still, even if a few days into the case, he had a copy of the entire trial transcript, he would never understand the tenor of the case.

It was chalked up as just an overly cocky attorney that made his living by bluster and attempted intimidation.

A Motion for Summary Judgment was filed and set during the time counsel for Plaintiff had a driving trip to Washington State planned. A motion to continue the hearing was made and the Court summarily denied it. The Court, having granted three continuances and indulged every possible delay by the defendants Pardue and Atkins, could not even move the Summary Judgment hearing to accommodate the counsel for Plaintiffs.

In open court, Judge Quisenberry stated he would never make a lawyer attend a hearing while he had a vacation letter filed. This was not true. Refusing to move the date, the Court, Judge Quisenberry, then held the hearing.

The hearing was really only about one legal issue - Collateral Estoppel. This legal theory says that a court can not relitigate the same issues twice. The poorly written motion by Pardue's and Atkins' new attorneys claimed that the jury had already determined all of the fact issues in the case against Moran. Even a first year law student can understand that the fraud claims against Moran, the real estate agent for the buyers, were different from the fraud claims against Pardue and Atkins, the realtors for the sellers. They involve completely different facts and proof. There was no conspiracy claim only a fraud claim.

In a fraud case, the jury has to answer whether each person committed fraud. It can not be shared like the negligence in a car accident. Despite this fundamental legal premise, Judge Quisenberry granted the Motion for Summary Judgment and found that Pardue and Atkins were free to sell more property the way they sell property. Apparently, Judge Quisenberry could not see how the fraud committed by Atkins and Pardue was not the same issue the jury considered in the first trial. He saw both acts of fraud to be the same thing. Even Moran denied knowing about the email below. It was discovered in the Title company records and even after trying the case, Moran's attorney claimed he didn't know about it. So how could Judge Quisenberry even begin to think these were the same issues? How could he ignore the requirements that Moran's fraud be submitted differently from Atkins' fraud which had to be submitted separately from Pardue's fraud? It didn't make any legal sense for Judge Quisenberry to do this. Yet he did.

Shortly after Judge Quisenberry saved Pardue and Atkins and their employer, Century 21 Lynch, from a trial over the email and why they didn't disclose what they knew, the Daniels let the house on the drainage easement, in a flood zone, go. Chase Bank owns it now. Anyone who buys that house better hope they never have to go to court over the disclosures.

God Help them if they file suit in Judge Graham Quisenberry's court.


Wednesday, October 5, 2011

OUR STORY Part 72: NEW SEASON BEGINS~THE TAKING CAPTIVE OF EVERY THOUGHT

"Casting down imaginations, 
and every high thing that exalteth itself 
against the knowledge of God, 
and bringing into captivity every thought 
to the obedience of Christ;" 
II Corinthians 10:5


We apologize to those of you who have been patiently waiting for updates. This is the first opportunity we have had to blog; and what used to be taken for granted as a daily accommodation to the Internet is now considered a luxury as our access to WiFi is sporadic.

There are a few stories to share; beginning with another thank you to George at PepBoys in Lake Worth for taking the time to help us, once again. 

Once the trailer was loaded up we could see that the weight on the truck and hitch connection were not correct. The front end of the truck was lifting too high and the hitch connection too low. So I put a call into George explaining the situation and he graciously invited us to come back by the shop so that he could take a look.

When we arrived George could see right away that the hitch needed adjusting, so he removed the hitch, raised it and tightened up the chains on the stabilizing bars before lowering the trailer onto the hitch ball. We would never have known how to do this had it not been for his generosity and kindness.

Once again we were leveled out and ready to begin our journey. Not only did George's kindness and compassion prevent unnecessary damage to our vehicle and trailer, but it also gave us some sense of peace of mind; something that we desperately need at this time given the many stresses of unknowns in our lives.

“Thank you so very much George! May God richly bless you for your kindness and compassion.”

Once we were on the road we found an RV park and stayed their a couple of days in order to have some time to go through and organize the trailer. We lightened our load even more, having to say good bye to a library of books that have been very dear to us over the past couple of years, and a crucial part of our growth and sanctification in God. It was extremely painful to let them go in this manner; but difficult times call for difficult decisions and the weight of our books and some other personal belongings were just too much. Not to mention the clutter making it virtually impossible for us to maneuver and function in our little home.

The second day at the RV park I had the dogs in a little fenced dog run provided by the facility while Mike was working on the trailer. While I was in there I was watching a couple in their 70’s loading up their luxurious mammoth size RV. Within a matter of moments panic hit.

At one point the husband walked around to the driver’s side door of their truck to do some loading. The next thing I know he lets out a huge scream and slumps down into the driver’s side seat while standing outside the door. The wife immediately came bolting from around the far side of the RV frantically searching for her husband but couldn't see him. I hollered over to her “He’s at the driver’s seat!” She was at his side within seconds.

Within a couple of minutes Mike began walking towards me and the dogs.Once Mike was in hearing range I asked him to go see if the gentleman was okay, as I still had my hands full with our two dogs. Mike walked over and spoke with the couple for a few moments and then came on over to explain to me that the husband’s defibrillator implant had gone off on him for the very first time startling him.

The wife ended up driving in place of her husband; and Mike and I prayed as they drove off; asking for God’s grace and protection over their journey.

The experience really affected me; watching this wife in sheer panic as she is searching for her husband who clearly has a life threatening heart condition. Nothing else mattered to her at that point; not the packing or their next destination. Only that her husband was alive.

Life is so temporal, and with all the loss that we have suffered at the hands of others; we are just so very grateful that we still have the most important thing in our lives; our faith in God and the love and companionship of one another.


Living in less than 200 square feet is a challenge to say the least. Add to that the dynamic of strange neighbors that can change from one day to the next; and the fact that they live just feet away from your flimsy front door; well, it all just makes my head spin right now. Even the dogs spend most of their time hiding back by our bed in the trailer; their lives are so unsettled right now. If either one of us is out of site they go nuts.

With our eating habits challenged through this transitional period we have been forced to change our diet for the sake of convenience. As a result of this and the stresses of late my blood pressure has been a mess. My left foot and ankle are so swollen the past two days that I can barely walk on them without excruciating pain. Mike has taken on the brunt of the workload in hopes that the swelling will decrease.

Things have not been easy, but we are trusting that here on the other side of this surreal transition that a plan and purpose for everything we have been through will eventually be unveiled to us. Until that time we just continue to press on and hold fast.

Again, I feel as if I am failing God these past few days; I've been so discouraged and unsettled. Homeless isn't just about being without shelter; its about having no sense of belonging or nesting.

I know our real home lies in eternity; but there is something to be said for feeling some sense of familiarity and belonging. Perhaps this too shall pass as we continue to be broken down and refined through the fiery furnace of testing of our faith in God.

I keep wanting to wake up from this dream and to be back in my bed and in my home at Humble Acres; able to soak in my own bath tub and stretch out my legs as I read; but that chapter is closed.

Psalm 25:16-21

King James Version (KJV)

 16Turn thee unto me, and have mercy upon me; for I am desolate and afflicted.
 17The troubles of my heart are enlarged: O bring thou me out of my distresses.
 18Look upon mine affliction and my pain; and forgive all my sins.
 19Consider mine enemies; for they are many; and they hate me with cruel hatred.
 20O keep my soul, and deliver me: let me not be ashamed; for I put my trust in thee.
 21Let integrity and uprightness preserve me; for I wait on thee.







NOT IN A FLOOD ZONE?

GOOD BYE HUMBLE ACRES


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