FILED
`DALLAS COUNTY
`7/8/2019 4:19 PM
`FELICIA PITRE
`DISTRICT CLERK
`Shirley Montgomery
`
`No. DC-18-15026
`
`
`GLENDONTODD CAPITAL, LLC,
`TODD FURNISS and MARY HATCHER,
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`Plaintiffs,
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`v.
`
`HOWARD MARC SPECTOR, in his
`capacity as Court-Appointed Receiver and
`Attorney-in-Fact for NEAL RICHARDS
`GROUP, LLC; NEAL RICHARDS
`GROUP AUSTIN DEVELOPMENT, LLC;
`and NEAL RICHARDS GROUP FOREST
`PARK DEVELOPMENT, LLC,
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`
`Defendants,
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`
`
`§
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`IN THE DISTRICT COURT
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`DALLAS COUNTY, TEXAS
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`68th JUDICIAL DISTRICT
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`NRG DEFENDANTS’ TRADITIONAL AND NO EVIDENCE MOTIONS FOR
`SUMMARY JUDGMENT
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`
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`Howard Marc Spector (“Receiver”), in his capacity as court-appointed receiver for
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`the Neal Richards Group, LLC (“NRG”), Neal Richards Group Austin Development,
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`LLC (“NRG Austin”), and Neal Richards Group Forest Park Development, LLC (“NRG
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`Dallas”) (all Defendants are collectively referred to as the “NRG Defendants”),
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`Defendants in the above-styled and numbered cause, file this their Motion for Summary
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`Judgment against Plaintiffs Todd Furniss (“Furniss”), and glendonTodd Capital, LLC
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`(“GTC”), and Mary Hatcher (“Hatcher”) (collectively the “Plaintiffs”) and would
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`respectfully show unto the Court as follows:
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`SUMMARY
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`
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`In a court-approved settlement on February 26, 2018, Furniss and Hatcher
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`released the NRG Defendants from all claims, demands, damages and rights (including
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`contractual rights) arising from any actions or omissions prior to the date of the
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`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIONS FOR SUMMARY JUDGMENT - Page 1 of 168
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`Settlement Agreement, except for one Carved-Out Claim that was tried to the Court on
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`December 18, 2018. After the Settlement Agreement was signed and the GTC Parties
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`were paid the Settlement Payment, Plaintiffs filed a separate lawsuit, contending that the
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`NRG Defendants are contractually obligated to reimburse Furniss and Hatcher for legal
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`fees allegedly incurred long before the Settlement Agreement. Furniss and Hatcher
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`released their “claims,” “rights,” and “damages” and have no right to assert any of the
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`claims asserted in this lawsuit.
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`Furthermore, even if the indemnity claims asserted by Furniss and Hatcher were
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`not released by the Settlement Agreement, the NRG Defendants are entitled to summary
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`judgment because the Amended Final Judgment in Cause No. DC-17-12500, styled West
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`Summit Investments, LP v. Neal Richards Group, LLC, bars all of the Plaintiffs’ claims
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`under the doctrine of res judicata or collateral estoppel. Finally, pursuant to Rule 166a(i)
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`of the Texas Rules of Civil Procedure, the NRG Defendants seek summary judgment on
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`all claims asserted by the Plaintiffs because (a) with regard to the claims for breach of
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`contract, there is no evidence that the NRG Defendants breached any Contract or that
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`any alleged breach of contract caused Plaintiffs to suffer any legally recoverable damages;
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`and (b) with regard to the Plaintiffs’ claim for breach of fiduciary duty, there is no
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`evidence that the NRG Defendants owed any fiduciary duty to any of the Plaintiffs or that
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`any alleged breach of fiduciary duty caused Plaintiffs to suffer any damages.
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`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIONS FOR SUMMARY JUDGMENT - Page 2 of 168
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`A.
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`GTC’s Lawsuit and the Settlement Agreement.
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`FACTS
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`On December 4, 2017, GTC filed its Original Petition in Intervention in Cause No.
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`DC-17-12500, styled West Summit Investments, LP v. Neal Richards Group, LLC.1 In
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`its Petition in Intervention, GTC sought $838,199.42 in “other expenses” which GTC
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`stated would increase “as gTC continue[d] to incur legal expenses related to NRG
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`matters.” In other words, GTC was claiming that it had suffered damages as a result of
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`legal expenses it had incurred “related to NRG matters.”
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`Three months later, on February 26, 2018, all of the NRG Parties and all of the
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`GTC Parties (including Furniss and Hatcher) signed the Compromise and Settlement
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`Agreement (“Settlement Agreement”) that included the following extremely broad release:
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`Release by GTC Parties: Effective upon the Effective Date, in consideration of
`the agreements described herein, the adequacy and sufficiency of which is
`acknowledged and confessed, each GTC Party, hereby fully, forever and
`completely releases, discharges and acquits each NRG Party, its respective
`affiliates (including, but not limited to, each partnership for which a NRG
`Party serves as general partner and all such parties specified in Section 13(c)
`hereof), employees, officers, managers, partners, attorneys, the Receiver (and
`his counsel and
`financial advisors and accountants), agents and
`representatives, but exclusive of the "Excluded Parties", as defined below
`(collectively, the "NRG Group") from any and all claims, causes of action,
`rights, demands, damages, as well as claims and disputes of any kind or nature
`whatsoever, whether known or unknown, actual or potential, whether in tort,
`contract, under statute, in equity or otherwise which a GTC Party (or anyone
`acting or claiming by, through, or under a GTC Party) may now have, have
`had, or may have against an NRG Party or any member of the NRG Group to
`the extent that they arise out of or relate to any action or omission that
`occurred prior to the execution of this Agreement; provided, however, nothing
`herein shall constitute a release of any claims against the NRG Group or any
`member of the NRG Group to the extent that the NRG Parties breach any of
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`1 See Ex. A (GTC’s Original Petition in Intervention).
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`their representations, warranties, covenants or agreements in this Agreement
`(or any document executed in connection therewith);….2
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`The parties agreed to settle all claims, rights, and damages between them, except for the
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`Carved Out Claim, which was later tried to the Court on December 18, 2018.3 After the
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`parties have tried all of the Carved Out Claims, Plaintiffs now want to start over and
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`assert claims for indemnification that were expressly released.
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`B.
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`Summerville Lawsuit.
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`
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`On October 19, 2015, two-and-a-half years before the Settlement Agreement was
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`signed, Nicholas Summerville, Derrick Evers and Lee White (collectively the “Summerville
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`Plaintiffs”) sued NRG and eight other defendants, but not Todd Furniss.4 The
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`Summerville Plaintiffs claimed that they had been wrongfully removed from their
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`positions at NRG and that they were forced to exercise certain Buy-Sell rights under the
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`LLC Agreement for NRG.5 The Summerville Plaintiffs were concerned about the ability
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`of NRG to pay the obligations owed to the Summerville Plaintiffs.6 The Summerville
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`Plaintiffs did not originally sue Furniss and did not ever sue Hatcher, NRG Dallas, or
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`NRG Austin.7
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`2 See pg. 123 of Todd Furniss’ and Mary Hatcher’s Motion for Partial Summary Judgment (“Plaintiffs’
`Motion”) (emphasis added). The evidence attached to the Plaintiffs’ Motion, including the Settlement
`Agreement, is incorporated herein by reference.
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`3 Id.
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`4 See Ex. B (Plaintiffs’ Verified Original Petition, Application for a Temporary Restraining Order, and
`Application for a Temporary Injunction).
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`5 See id.
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`6 See id.
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`7 See id.
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`On December 31, 2015, the Summerville Plaintiffs added Todd Furniss as a party,
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`but their allegations still centered on a concern that NRG would not pay what was owed
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`to the Summerville Plaintiffs.8
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`More than a year later, on February 6, 2017, Plaintiff Derrick Evers, who allegedly
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`owned 20 percent of NRG Austin, added three claims related to the allegation that Todd
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`Furniss and others breached their fiduciary duties by allowing GTC to improperly take
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`NRG Austin’s distribution from FPMC Austin Realty Partners, LP.9 These three claims
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`are part of ten separate causes of action asserted by the Summerville Plaintiffs, the rest of
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`which had little or nothing to do with NRG Austin or NRG Dallas.
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`Furniss contends Bill Brewer represented him under a flat monthly fee arrangement
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`of $10,000 a month that was capped at $150,000, which was fully incurred as of August
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`2017—six months prior to the signing of the Settlement Agreement.10 Furniss has not
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`undertaken any effort to segregate the fees, if any, related to claims involving NRG Austin
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`versus the fees allegedly associated with NRG or NRG Dallas.
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`C.
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`Gurganus Lawsuit.
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`On November 13, 2015, two-and-a-half years before the Settlement Agreement
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`was signed, Laura Gurganus sued Todd Furniss, GTC, Hatcher and others for less than
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`$100,000, alleging that the Defendants failed to pay wages to the Plaintiff for her services
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`8 See Ex. C (Plaintiffs’ First Amended Petition); Plaintiffs also amended their Petition on January 6, 2016,
`but the allegations remained largely the same. See Ex. D (Plaintiffs’ Second Amended Petition).
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`9 See pgs. 159-62 of Plaintiffs’ Motion. As the Court is aware, Furniss was found to have breached his
`fiduciary duty in connection with taking NRG Austin’s distribution so Derrick Evers’ allegation of wrongful
`conduct turned out to be correct. See Ex. E (April 8, 2019 Findings of Fact and Conclusions of Law), p. 2-3.
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`10 See pg. 252 of Plaintiffs’ Motion.
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`as a scrub nurse at Forest Park Medical Center of Dallas.11 Gurganus did not sue NRG,
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`NRG Dallas, or NRG Austin.12 Further, Gurganus did not sue Furniss or Hatcher in
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`connection with their management of NRG, NRG Austin, or NRG Dallas.13 Instead, she
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`sued Furniss and Hatcher in connection with their operation of separate entities
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`associated with the Dallas Forest Park hospital.
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`On November 15, 2016, Gurganus filed her Second Amended Petition, again
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`complaining about Furniss and Hatcher’s operation of The Management Company at
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`Forest Park Medical Center, LLC and FPMC Services, not NRG, NRG Dallas or NRG
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`Austin.14 The Gurganus lawsuit was dismissed on June 21, 2017—more than six months
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`before the Settlement Agreement was signed.15
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`D.
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`Lopez Lawsuit.
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`On February 24, 2016, two years before the Settlement Agreement was signed,
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`Erica Lopez sued Todd Furniss, GTC, Hatcher and others for less than $100,000, alleging
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`that the Defendants failed to pay wages to the Plaintiff for her services at Forest Park
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`Medical Center of Dallas.16 Lopez’s lawsuit was almost identical to the lawsuit filed by
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`Gurganus. Like Gurganus, Lopez did not sue NRG, NRG Dallas, or NRG Austin.17
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`Further, Lopez did not sue Furniss or Hatcher in connection with their management of
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`11 See Ex. F (Plaintiff’s Original Petition)
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`12 See id.
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`13 See id.
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`14 See pgs. 169-176 of Plaintiffs’ Motion.
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`15 See pg. 187 of Plaintiffs’ Motion.
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`16 See Ex. G (Plaintiff’s Original Petition).
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`17 See id.
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`NRG Dallas.18 Instead, she sued Furniss and Hatcher in connection with their operation
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`of separate entities associated with the Dallas Forest Park hospital.19
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`
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`On November 21, 2016, Erica Lopez filed her Amended Original Petition,
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`complaining again about Furniss and Hatcher’s operation of The Management Company
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`at Forest Park Medical Center, LLC and FPMC Services, not NRG, NRG Dallas or NRG
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`Austin.20 The Lopez lawsuit was dismissed on June 5, 2017—more than six months
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`before the Settlement Agreement was signed.21
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`E.
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`This Lawsuit.
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`
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`On October 3, 2018, Furniss and Hatcher filed their Original Petition in this
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`action. On February 22, 2019, Furniss and Hatcher, along with GTC, filed a First
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`Amended Petition. Plaintiffs assert three claims: (1) that the NRG Defendants breached
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`their respective LLC Agreements by refusing to indemnify Furniss and Hatcher for alleged
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`expenses incurred in the Lopez, Gurganus and Summerville lawsuits; (2) that NRG and
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`NRG Austin breached the settlement agreement by pursuing contempt and sanctions
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`proceedings in the United States Bankruptcy Court for the Western District of Texas; and
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`(3) that the Receiver breached a fiduciary duty to “glendonTodd, Mr. Furniss and Mrs.
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`Hatcher as creditors of NRG, NRG Dallas, and NRG Austin, because the companies are
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`insolvent or in the zone of insolvency and have ceased doing business.” None of these
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`claims can survive summary judgment.
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`18 See id.
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`19 See id.
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`20 See pg. 190 to Plaintiffs’ Motion.
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`21 See pgs. 199-201 to Plaintiffs’ Motion.
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`ARGUMENT AND AUTHORITIES
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`TRADITIONAL MOTION FOR SUMMARY JUDGMENT
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`A.
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`Plaintiffs released all of their contractual rights, damages and claims.
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`The claims that Plaintiffs are asserting in this case have already been paid and fully
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`released. In a court-approved settlement, NRG paid the Plaintiffs $200,000 to release
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`ALL of their claims against the NRG Defendants, except for one Carved Out Claim that
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`was tried to the Court on December 18, 2018.
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`A release is a complete bar to all claims covered by the release. See Phan v.
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`Addison Spectrum, LP, 244 S.W.3d 892, 897 (Tex. App.—Dallas 2008, no pet.) (holding
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`that a release is a complete bar to the claims that it covers). Deer Creek Ltd. v. N. Am.
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`Mortg. Co., 792 S.W.2d 198, 200 (Tex. App.—Dallas 1990, no pet.) (“A release, valid on
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`its face, until set aside, is a complete bar to any later action based on matters covered by
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`the release.”). As a matter of law, all claims asserted by the Plaintiffs against the NRG
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`Defendants are barred by the release.
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`1.
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`Plaintiffs have misconstrued the broad nature of the release.
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`In an attempt to avoid the release, Plaintiffs have previously argued that the release
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`does not apply because Plaintiffs did not make their demand for indemnification until
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`after the Settlement Agreement was signed. This argument ignores Texas law, common
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`sense, and the language of the release.
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`First and foremost, Plaintiffs ignore the extremely broad language of the release.
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`The release is not limited to accrued claims on which a demand has been asserted. The
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`parties drafted the release so that it included not only “all claims,” but also “rights,”
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`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
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`“damages,” and “disputes of any kind or nature whatsoever, whether known or
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`unknown, actual or potential, whether in tort, [or] contract, under statute, in equity or
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`otherwise which a GTC Party…may now have, have had, or may have against an NRG
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`Party…to the extent that they arise out of or relate to any action or omission that
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`occurred prior to the execution of this Agreement.”22 In other words, the parties were
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`releasing not only accrued claims on which a demand had been made, but also “rights”
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`and “damages” that they “may now have, have had,” or “may have” in the future.
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`The undisputed evidence shows that all of the Plaintiffs’ claims “arise out of or
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`relate to” actions and omissions that occurred prior to February 26, 2018.23 All of the
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`LLC agreements under which Plaintiffs seek indemnification were signed years before the
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`February 26, 2018 Settlement Agreement.24 All of the lawsuits were filed before the
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`Settlement Agreement. Plaintiffs resigned all of their positions with the NRG Defendants
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`in April 2017—ten months before the Settlement Agreement was signed.25 In other
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`words, the contractual indemnification “rights” Plaintiffs assert (and released) all arose
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`before the date of the Settlement Agreement. In addition, all of the “damages” (i.e.,
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`attorneys’ fees) Plaintiffs seek were incurred prior to the February 26, 2018 Settlement
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`Agreement.26 Based on the evidence submitted by Plaintiffs, the Brewer attorneys’ fees
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`22 See pg. 123 of Plaintiffs’ Motion (emphasis added).
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`23 See pg. 123 of Plaintiffs’ Motion
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`24 See pg. 31 of Plaintiffs’ Motion (LLC Agreement for NRG Austin, dated April 1, 2009); pg. 49 of
`Plaintiffs’ Motion (LLC Agreement for NRG Dallas, dated July 24, 2009); pg. 80 of Plaintiffs’ Motion
`(Amended LLC Agreement for NRG Austin, dated July 12, 2013).
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`25 See pg. 23 of Plaintiffs’ Motion (Furniss Declaration).
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`26 See pgs. 240-52 of Plaintiffs’ Motion (Brewer fee statements); see pgs. 258-324 of Plaintiffs’ Motion
`(Hedrick Kring fee statements).
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`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
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`were incurred were incurred from May of 2016 to August of 2017,27 and the Hedrick
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`Kring attorneys’ fees were incurred from January 2016 to September 2017.28 Finally,
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`both the Lopez and Gurganus cases were dismissed before the February 26, 2018
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`Settlement Agreement, so, with regard to these two cases, there is not even a colorable
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`argument that Furniss and Hatcher are entitled to indemnification.29
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`Plaintiffs’ claims also ignore Texas law.30 To the extent Plaintiffs ever had any
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`claim for indemnification, that claim for indemnification arose when Plaintiffs paid or
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`incurred attorneys’ fees that were the alleged contractual obligation of the NRG Parties.31
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`Finally, common sense tells us that a prior demand on a claim is not necessary in
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`order for the claim to be released. What if Furniss and Hatcher had not made a demand
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`for indemnification for 25 years? Under Plaintiffs’ logic, the claim would not have arisen
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`because they never made a claim that was rejected. This argument is nonsense. Plaintiffs
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`had claims for indemnification when they allegedly incurred damages or fees that were
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`purportedly covered by the LLC Agreements. Plaintiffs released all of those claims on
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`February 26, 2018.
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`27 See pgs. 240-52 of Plaintiffs’ Motion (Brewer fee statements).
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`28 See pgs. 258-324 of Plaintiffs’ Motion (Hedrick Kring fee statements).
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`29 Based on the evidence submitted by the Plaintiffs, the Gurganus case was dismissed on June 27, 2017 and
`the Lopez case was dismissed on June 5, 2017. See pg. 189 (Gurganus) and pgs. 199-201 (Lopez).
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`30 The weakness of Plaintiffs’ argument is illustrated by the two cases Plaintiffs cite, Stine v. Stewart, 80
`S.W.3d 586, 592 (Tex. 2002) and Cooper Ind. v. CBS Corp., C.A. No. N18C-03-175-WCC-CCLD, 2019
`WL 245819 (Del. 2019). Stine includes no discussion of indemnity agreements. It is unclear why Plaintiffs
`even cite to Stine, because it does not support their argument. Cooper Industries is a motion to dismiss case
`under Delaware law, not a decision on the merits. Id.
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`31 See Colonial Title Co., LLC v. Commonwealth Land Title Ins. Co., No. 12-16-00328-CV, 2017 WL
`4675535, at *3 (Tex. App.—Tyler Oct. 18, 2017, no pet.) (“As a general rule, an action for indemnification
`accrues when payment is made or judgment is rendered.”).
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`2.
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`NRG Austin did not breach the Settlement Agreement.
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`Plaintiffs also seek to avoid the release by arguing that NRG and NRG Austin
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`breached the Settlement Agreement by filing the Motion to Show Cause in the United
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`States Bankruptcy Court for the Western District of Texas. Furniss contends that the
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`request for contempt was a “Carved Out Claim” that had to be tried in the 68th Judicial
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`District Court, not the bankruptcy court in Austin.32 This argument fails for two reasons.
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`First, NRG Austin did not breach the Settlement Agreement by failing to file the contempt
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`proceeding in this Court because this Court did not have jurisdiction. Second, even if
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`Plaintiffs were able to conclusively establish a breach of the Settlement Agreement (which
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`they cannot), a breach does not void the release of liability.
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`The 68th Judicial District Court did not have jurisdiction to hear a contempt
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`proceeding under 11 U.S.C. § 105(a) based on the violation of orders issued by the United
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`States Bankruptcy Court for the Western District of Texas.33 As a matter of law, NRG
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`Austin cannot violate the Settlement Agreement by failing to file a contempt proceeding in
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`a state court that does not have jurisdiction to decide the issue.34 A forum selection claim
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`that purports to require adjudication of a legal issue in a court that does not have
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`32 In their Motion, Furniss states: “NRG Austin’s request for contempt and sanctions against Mr. Furniss is
`a Carved-Out Claim that NRG Austin agreed to litigate in the 68th Judicial District Court, not in the
`bankruptcy court in Austin.” See pg. 16 of the Plaintiffs’ Motion.
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`33 See pgs. 203-239 for a description of the nature of the bankruptcy proceedings. See also In re White-
`Robinson, 777 F.3d 792, 795-96 (5th Cir. 2015) (noting that contempt proceedings for violating a
`bankruptcy court order fall within the bankruptcy court’s jurisdiction).
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`34 See generally State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996) (holding that agreement
`cannot create jurisdiction in absence of constitutional or statutory authority); In re Gynor, Inc., 251 B.R.
`344, 350 (N.D. Ill. 2000) (“It is well established that parties cannot, by agreement, confer subject matter
`jurisdiction upon a court.”); Zany Toys, LLC v. Pearl Enterprises, LLC, No. 13-5262, 2015 WL 404644,
`at * (D. NJ Jan. 28, 2015) (noting that “Any sort of ‘agreement” between the parties that this Court should
`hear a claim does not and cannot create jurisdiction where none exists.”).
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`jurisdiction over the issue is unenforceable as a matter of public policy.35 The parties
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`expressly agreed that “[i]n the event that any provision of this Agreement is finally held to
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`be void or otherwise unenforceable by a court of competent jurisdiction, all remaining
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`provisions shall remain in full force and effect.”36 In summary, to the extent that the
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`Settlement Agreement required NRG Austin to pursue contempt proceedings under 11
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`U.S.C. § 105(a) in the 68th Judicial District Court, the forum-selection provision is
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`unenforceable as a matter of law. Pursuant to the parties’ agreement, the remaining
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`provisions of the Settlement Agreement, including the releases of liability, “remain in full
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`force and effect.”
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`Even if the Court somehow found that NRG Austin breached the Settlement
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`Agreement by pursuing contempt proceedings in the Austin bankruptcy court, NRG
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`Austin’s alleged breach does not invalidate the release.37 The release does not state that it
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`is void if either party breaches the Settlement Agreement or that it is valid only if all
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`parties abide by all terms of the Settlement Agreement.38 Instead, the Settlement
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`Agreement, like most settlement agreements, merely states that the parties are not
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`releasing each other from the “representations, covenants, and agreements” in the
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`35 See In re Spillman Development Group, Ltd., 710 F.3d 299, 306 (5th Cir. 2013) (noting that, because
`there is a strong public policy interest in allowing bankruptcy court to resolve certain statutorily core
`proceedings, bankruptcy court is not required to enforce a forum selection clause).
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`36 See pg. 120 of Plaintiffs’ Motion.
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`37 Furthermore, NRG Austin’s actions in seeking contempt against Furniss in U.S. Bankruptcy Court in
`Austin have no impact on the release provided to NRG or NRG Dallas. Furniss never explains how the
`other two NRG Defendants would somehow lose their right to the release based on the actions of NRG
`Austin.
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`38 See pg. 123 of Plaintiffs’ Motion.
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`Settlement Agreement.39 There is nothing novel or unique about this type of provision.
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`The release of liability does not disappear in the event of an alleged breach of the
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`Settlement Agreement.
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`B.
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`Plaintiffs’ claims are barred by the doctrines of res judicata and/or collateral
`estoppel due to the Amended Final Judgment signed by this Court on May 7,
`2019.
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`On May 7, 2019, this Court entered an Amended Final Judgment in Cause No.
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`DC-17-12500, styled West Summit Investments, LP v. Neal Richards Group, LLC, based
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`on a one-day bench trial that this Court conducted on May 7, 2019.40 Furniss and GTC
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`were both parties to that action, and, to the extent they had any claims against NRG,
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`NRG Austin or NRG Dallas, they were required to assert those claims or lose them.
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`Res judicata bars litigation of a second suit when (1) a court of competent
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`jurisdiction has rendered a prior final judgment on the merits, (2) the prior suit involved
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`the same parties or those in privity with them,41 and (3) the second suit’s claims are the
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`same as those raised in the prior suit or the claims in the second suit could have been
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`raised in the first suit.42
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`39 See pg. 123 of Plaintiffs’ Motion (noting that “nothing herein shall constitute a release” of claims to the
`extent that the NRG Parties breach “their representations, warranties, covenants, or agreements in this
`Agreement.”).
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`40 See Ex. H (Amended Final Judgment).
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`41 Mary Hatcher was the chief financial officer and chief compliance officer of GTC and a part owner of
`GTC and, obviously, is in privity with GTC. See Ex. I (November 29, 2018 Deposition of Mary Hatcher),
`p. 50-53.
`
`42 Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); New Talk, Inc. v. Sw. Bell Tel. Co., 520
`S.W.3d 637, 645 (Tex. App.—Fort Worth 2017, no pet.).
`
`
`
`
`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIONS FOR SUMMARY JUDGMENT - Page 13 of 168
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`

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`As a matter of law, the Final Judgment in the West Summit case bars all of the
`
`claims asserted by the Plaintiffs. See id. As a matter of law, all of the Plaintiffs’ claims are
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`barred by the doctrines of res judicata and collateral estoppel.
`
`NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
`
`
`
`Pursuant to Rule 166a(i) of the Texas Rules of Civil Procedure, the NRG
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`Defendants seek summary judgment on all claims and causes of action asserted by the
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`Plaintiffs because (a) with regard to the claims for breach of contract, there is no evidence
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`that the NRG Defendants breached any Contract or that any alleged breach of contract
`
`caused Plaintiffs to suffer any legally recoverable damages;43 and (b) with regard to the
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`Plaintiffs’ claim for breach of fiduciary duty, there is no evidence that the NRG
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`Defendants owed any fiduciary duty to any of the Plaintiffs or that any alleged breach of
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`fiduciary duty caused Plaintiffs to suffer any damages.
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`SUMMARY JUDGMENT EVIDENCE
`
`
`
`The Traditional Motion for Summary Judgment is based on the following
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`summary judgment evidence:
`
`A.
`
`
`B.
`
`
`C.
`
`GTC’s Original Petition in Intervention filed in Cause No. DC-17-12500,
`styled West Summit Investments, LP v. Neal Richards Group, LLC, which
`is attached as Exhibit A and incorporated herein by reference;
`
`The evidence attached to Furniss’ and Hatcher’s Motion for Partial
`Summary Judgment, which is identified on pages 2 through 5 of the
`Motion;
`
`Plaintiffs’ Verified Original Petition, Application for a Temporary
`Restraining Order, and Application for a Temporary Injunction in Cause
`
`
`43 As Hatcher admitted, the legal fees that were allegedly “incurred” have been paid by GTC, so Furniss and
`Hatcher have suffered no damages from the alleged breaches of the indemnification provisions. See Ex. J
`(March 14, 2019 Deposition of Mary Hatcher), p. 6-8. As a matter of law, in the absence of damages,
`Plaintiffs cannot recover on any of their claims.
`
`
`
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`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIONS FOR SUMMARY JUDGMENT - Page 14 of 168
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`

`

`
`
`No. 15-12751, styled Nicholas Summerville, et al., vs. Neal Richards
`Group, LLC, et al, which is attached as Exhibit B and incorporated herein
`by reference;
`
`Plaintiffs’ First Amended Petition in in Cause No. 15-12751, styled
`Nicholas Summerville, et al., vs. Neal Richards Group, LLC, et al, which is
`attached as Exhibit C and incorporated herein by reference;
`
`Plaintiffs’ Second Amended Petition in in Cause No. 15-12751, styled
`Nicholas Summerville, et al., vs. Neal Richards Group, LLC, et al, which is
`attached as Exhibit D and incorporated herein by reference;
`
`April 8, 2019 Findings of Fact and Conclusions of Law in Cause No. DC-
`17-12500, styled West Summit Investments, LP v. Neal Richards Group,
`LLC, which is attached as Exhibit E and incorporated herein by reference;
`
`Plaintiff’s Original Petition in Cause No. CC-15-05764-C, styled Laura
`Gurganus v. Todd Furniss, et al., which is attached as Exhibit F and
`incorporated herein by reference;
`
`Plaintiff’s Original Petition in Cause No. CC-16-00900-B, styled Lopez v.
`Todd Furniss, et. al., which is attached as Exhibit G and incorporated
`herein by reference;
`
`Amended Final Judgment in Cause No. DC-17-12500, styled West Summit
`Investments, LP v. Neal Richards Group, LLC, which is attached as Exhibit
`H and incorporated herein by reference;
`
`Excerpts from the November 29, 2018 Deposition of Mary Hatcher, which
`is attached as Exhibit I and incorporated herein by reference; and
`
`Excerpts from the March 14, 2019 Deposition of Mary Hatcher, which is
`attached as Exhibit J and incorporated herein by reference.
`
`CONCLUSION AND PRAYER
`
`
`D.
`
`E.
`
`
`F.
`
`
`G.
`
`
`H.
`
`
`I.
`
`
`J.
`
`
`L.
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`
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`The NRG Defendants request that the Court grant this motion for summary
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`judgment and render judgment that Plaintiffs take nothing by their claims. The NRG
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`Defendants also request that the Court grant the NRG Defendants all other relief, either
`
`at law or in equity, to which they are entitled to receive.
`
`
`
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`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIONS FOR SUMMARY JUDGMENT - Page 15 of 168
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`

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`Dated: July 8, 2019
`
`
`
`REESE MARKETOS LLP
`
`
`
`
`
`
`
`
`
`By: /s/ Joel W. Reese
`
`Joel W. Reese
`State Bar No. 00788258
`joel.reese@rm-firm.com
`Leslie Chaggaris
`State Bar No. 24056742
`leslie.chaggaris@rm-firm.com
`
`750 N. Saint Paul St., Suite 600
`Dallas, Texas 75201-3201
`214.382.9810 telephone
`214.501.0731 facsimile
`
`
`ATTORNEY FOR DEFENDANT,
`HOWARD MARC SPECTOR, in his Capacity
`as Court-Appointed Receiver and Attorney-in-
`Fact for NEAL RICHARDS GROUP AUSTIN
`DEVELOPMENT, LLC
`
`
`
`
`
`VINCENT SERAFINO GEARY WADDELL
`JENEVEIN, PC
`
`
`By: /s/ Robert C. Jenevein
`Robert C. Jenevein
`State Bar No. 10617430
`1601 Elm St. #4100
`Dallas, TX 75201
`email: bjenevein@vinlaw.com
`
`ATTORNEYS FOR DEFENDANT, HOWARD
`MARC SPECTOR, in his Capacity
`As Court-Appointed Receiver and Attorney-in-
`Fact for NEAL RICHARDS GROUP, LLC, ,
`and NEAL RICHARDS GROUP FOREST
`PARK DEVELOPMENT, LLC
`
`
`
`
`
`
`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIONS FOR SUMMARY JUDGMENT - Page 16 of 168
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`CERTIFICATE OF SERVICE
`
`This is to certify that a true and correct copy of the foregoing pleading has been
`served on all known counsel of record in accordance with the Texas Rules of Civil
`Procedure on July 8, 2019, through the Court’s electronic filing system.
`
`Paul A. Hoffman
`Paul A. Hoffman, P.C.
`3408 Townbluff Place
`Plano, TX 75023-8045
`972.380.2600
`972.380.2620 fax
`email: paulhoff@earthlink.net
`
`Robert C. Jenevein
`Vincent Serafino Geary Waddell Jenevein,
`PC
`1601 Elm St. #4100
`Dallas, TX 75201
`email: bjenevein@vinlaw.com
`
`
`
`
`Howard Marc Spector
`Spector & Johnson, PLLC
`12770 Coit Rd. #1100
`Dallas, TX 75251
`email: hmspector@spectorjohnson.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Joel W. Reese
`One of Counsel
`
`
`
`
`
`
`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIONS FOR SUMMARY JUDGMENT - Page 17 of 168
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`EXHIBIT    A  
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`NRG DEFENDANTS' TRADITIONAL AND NO EVIDENCE
`MOTIO