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.
