MOTION FOR SUMMARY JUDGMENT

Carl Azbell

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Plaintiff in Pro Per

 

 

IN THE 160^TH JUDICIAL DISTRICT COURT

IN AND FOR DALLAS COUNTY, TEXAS

 

MADISON SEMLER, Plaintiff, vs. CARL AZBELL, et. al, Defendant(s)

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Case No.: DC-22-17309       CARL AZBELL’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

NOW COMES Carl Azbell, Defendant, and files this Opposition to Plaintiff’s Motion for Summary Judgment, and for cause would show this Honorable Court as follows:

 

1. CARL AZBELL’S STATEMENT OF MATERIAL UNDISPUTED FACTS
2. It is important to note that I, Carl Asbell, am the sole defendant in this lawsuit. The other defendants mentioned are merely passed-through entities and have no involvement or agreement with the plaintiff.
3. The plaintiff did not receive payment from me due to their failure to meet the established requirements. The conditions were clearly outlined for the plaintiff to be eligible for a commission, but they did not fulfill them.
4. The complaint filed against Trek was dismissed due to the plaintiff’s own legal actions. This demonstrates the plaintiff’s ongoing legal issues, which are unrelated to the commission dispute.
5. All agents involved signed an Independent Contractor Agreement, which fully complied with the law. This agreement ensured clarity regarding roles and responsibilities.
6. I, Carl Asbell, made efforts to support the plaintiff by sending texts and emails. These communications were intended to honor the obligation to close the contract, which is a separate matter from the commission dispute. It is crucial to establish that I provided assistance to the plaintiff in fulfilling their contractual obligations.
7. I sent a letter to the plaintiff clearly outlining the educational requirements necessary to engage in commercial real estate activity. Unfortunately, the plaintiff did not fulfill these requirements before entering into the transaction mentioned in the complaint.
8. As a responsible broker, I diligently fulfilled my duty by educating, supporting, and guiding the plaintiff throughout the transaction. I ensured that the client’s needs were met, even though I knew the plaintiff would not be receiving a commission. The responsibility to fulfill the client’s requirements rested on my shoulders, not the plaintiff’s.
9. The plaintiff’s lack of compliance with the rules set forth by the Texas Real Estate Commission is a significant factor. As a licensed real estate agent, the plaintiff should have been aware of and followed the geographic competency rules and regulations, as well as the prior experience requirements. It was not my responsibility to continuously reiterate these rules; they were part of the plaintiff’s professional knowledge base.
10. In my attempts to assist the plaintiff, I sent a settlement statement offering a reduced commission if they completed the required courses. However, the same letter explicitly stated that the plaintiff was not permitted to engage in commercial transactions, including the specific transaction mentioned in the complaint. Regrettably, the plaintiff did not comply with these requirements.
11. It is disheartening that the plaintiff, despite being a licensed real estate agent, lacked the necessary geographic and prior experience competency to complete the transaction. The plaintiff’s refusal to follow the rules and regulations established by the Texas Real Estate Commission constitutes a clear violation.
12. During the review of the paperwork, it became apparent that the plaintiff had not fulfilled the educational requirements before the settlement closing. This further justified my decision not to provide any commission, as the plaintiff knowingly violated the laws outlined by the Texas Real Estate License Act and the National Association of Realtors.
13. Throughout this process, I, Carl Asbell, was unaware of the plaintiff’s failure to meet the education requirements. My decisions were based on the assumption that the plaintiff would act in their own best interest and adhere to the laws they were obligated to follow.
14. Importantly, there was no breach of contract on my part. It was the plaintiff who knowingly violated the Texas Real Estate License Act and the laws set forth by the National Association of Realtors. Consequently, there is no enforceable contract between the plaintiff and me.
15. As the trial date approaches, I respectfully request the court’s consideration of a summary judgment. The evidence clearly demonstrates that the plaintiff violated the laws mandated by the Texas Real Estate License Act and the National Association of Realtors.
16. Paying any commission to an individual who has violated these laws would undermine the integrity of the real estate industry. Therefore, I firmly believe that all named defendants should be removed from the lawsuit, the case should be dropped, and a summary judgment should be granted in my favor.

 

1. STANDARD FOR MOTION FOR SUMMARY JUDGMENT
2. A summary judgment motion pursuant to TEX. R. CIV. P. 166a(i) is essentially a motion for a pretrial directed verdict. See Merrell Dow Pharms., Inc. V. Havner, 953 S.W.2d 706, 711 (Tex.1997).
3. Once such a motion is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Id.; Invs., Inc. V. Urena, 162 S.W.3d 547, 550 (Tex.2005).
4. We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d 193, 208 (Tex.2002).

 

1. ARGUMENT

There Was No Enforceable Contract Between Plaintiff and Defendant.

19. While the plaintiff asserts the existence of a valid and enforceable contract between us, I, Carl Asbell, respectfully disagree. The facts presented need to be carefully examined to provide a comprehensive understanding of the situation.
20. First and foremost, it is crucial to acknowledge that the Commercial Broker Contract mentioned by the plaintiff was memorialized by the 07/21/2022 Correspondence and subsequent negotiations. However, it is important to note that the plaintiff failed to fulfill the necessary educational requirements before entering into the transaction mentioned in the complaint. These requirements were clearly outlined in the letter I sent to the plaintiff, emphasizing the importance of completing the development courses.
21. Although the plaintiff may argue that the terms of the Commercial Broker Contract state that they were authorized to conduct commercial real estate sales and leases, including the specific transaction, it is essential to recognize that this authorization was contingent upon the plaintiff’s fulfillment of the educational requirements. The plaintiff knowingly violated these requirements, rendering the authorization void.
22. Furthermore, the plaintiff refers to the agreed-upon commission splits outlined in the Commercial Broker Contract. While it is true that the contract stipulated an 80/20 commission split for the Transaction, this was subject to the plaintiff’s completion of the development courses. As the plaintiff failed to meet this prerequisite, the agreed-upon commission split cannot be applied.
23. The plaintiff’s reference to my confirmation of the commission payment on September 6, 2022, does not undermine my position. While I may have expressed gratitude for the plaintiff’s timely communication, it was contingent upon their fulfillment of the educational requirements. The plaintiff’s failure to meet these requirements invalidated the commission payment.
24. Similarly, the affirmation of the Commercial Broker Contract on September 29, 2022, should not be misconstrued. My affirmation merely acknowledged the existence of the contract; however, it does not override the requirement for the plaintiff to fulfill the educational prerequisites outlined in the letter.
25. In conclusion, the plaintiff’s argument asserting the existence of a valid and enforceable contract is flawed. The contract was contingent upon the plaintiff’s fulfillment of the educational requirements, which they knowingly failed to meet. Therefore, the contract cannot be deemed enforceable. Based on these facts, I maintain that summary judgment should be granted in my favor, and the plaintiff’s claims should be dismissed.

 

Plaintiff Lacks Standing to Sue for Breach of Contract

26. Although the plaintiff may claim to be the current holder of the Commercial Broker Contract and an original party to the contract, certain crucial factors need to be addressed.
27. Firstly, it is crucial to recognize that the plaintiff knowingly violated the educational requirements necessary to engage in commercial real estate activity. As outlined in the letter I sent to the plaintiff, it was made clear that completion of the development courses was a prerequisite for conducting commercial transactions. The plaintiff’s failure to fulfill these requirements raises questions about their standing to sue for breach of contract.
28. Furthermore, the plaintiff’s argument fails to acknowledge the importance of meeting the geographic competency rules and prior experience requirements set forth by the Texas Real Estate Commission. As a licensed real estate agent, the plaintiff should have been aware of and followed these rules. The plaintiff’s lack of compliance with these requirements raises doubts about their ability to fulfill the obligations outlined in the contract.
29. While the plaintiff may assert that the Commercial Broker Contract was memorialized by the 07/21/2022 Correspondence and subsequent negotiations, including discussions regarding the Transaction Commission, it is crucial to recognize that these negotiations were contingent upon the plaintiff’s fulfillment of the educational requirements. The plaintiff knowingly violated these requirements, casting doubt on the enforceability of the contract.
30. Considering these facts, it is evident that the plaintiff’s standing to sue for breach of contract is compromised due to their own violations and failure to meet the necessary prerequisites. Therefore, their claim lacks merit, and summary judgment should be granted in my favor to dismiss their claims.

 

Plaintiff Did Not Perform and Was Not Prevented From Performing Any Contractual Obligations

31. The plaintiff’s claim must be examined in light of their failure to meet the educational requirements and other key considerations.
32. Although the plaintiff references the Buyer’s interest in purchasing the Property and the subsequent entry into the Commercial Broker Contract, it is crucial to recognize that the plaintiff knowingly violated the educational requirements necessary to engage in commercial real estate activity. This violation raises doubts about their ability to fulfill their contractual obligations.
33. While the plaintiff may argue that they performed their broker services through the closing of the Transaction on October 3, 2022, it is important to highlight that the commission was disbursed to the defendants upon closing. This disbursement was contingent upon the plaintiff’s fulfillment of the educational requirements, which they knowingly failed to meet. As such, their claim of having fully performed their contractual obligations is questionable.
34. Furthermore, the plaintiff’s performance of broker services does not absolve them of their responsibility to meet the necessary prerequisites outlined in the letter sent to them. It is essential to recognize that their failure to meet these requirements raises doubts about the validity of their claim of full performance.
35. Considering these facts, it is evident that the plaintiff’s claim of fully performing their contractual obligations is undermined by their violation of the educational requirements and their failure to meet the necessary prerequisites. Therefore, their assertion lacks credibility, and summary judgment should be granted in my favor to dismiss their claims.

 

Defendant Did Not Breach the Contract

36. While the plaintiff asserts that I raised a series of excuses to avoid paying their commission, it is crucial to recognize that these actions were not unfounded. I, as the defendant, encountered legitimate challenges that hindered the immediate payment of the commission.
37. The plaintiff mentions that payment could not be wired and that they were not allowed at my office. These were necessary precautions taken to ensure compliance with legal and logistical requirements. The plaintiff’s access to my office and the method of payment were subject to these considerations, and they were informed accordingly.
38. The plaintiff’s inquiries regarding the status of their commission check were addressed within a reasonable timeframe. However, it is essential to acknowledge that the circumstances surrounding the disbursement of the commission were complex and required careful handling.
39. The plaintiff claims that my refusal to respond to their inquiries for payment constitutes a breach of the Commercial Contractor Contract. However, it is important to emphasize that the contract itself was contingent upon the plaintiff’s fulfillment of the educational requirements. Given their failure to meet these requirements, the enforceability of the contract is called into question.
40. Furthermore, the plaintiff’s failure to meet the prerequisites outlined in the letter, combined with their violations of the Texas Real Estate License Act and the laws set forth by the National Association of Realtors, raised legitimate concerns regarding the commission payment.
41. In light of these facts, the plaintiff’s assertion of a breach of contract is unfounded. The circumstances surrounding the commission payment were governed by legitimate considerations and the plaintiff’s own violations of the contractual and legal requirements. Therefore, summary judgment should be granted in my favor, dismissing the plaintiff’s claims.

 

There Is No Damage That Resulted From Defendant’s Actions

42. Firstly, it must be reiterated that the plaintiff knowingly violated the educational requirements necessary to engage in commercial real estate activity. This violation raises questions about the enforceability of the Commercial Broker Contract and the plaintiff’s entitlement to the commission.
43. Moreover, the plaintiff’s assertion of a breach of contract fails to acknowledge the valid concerns and challenges I faced in the disbursement of the commission. As mentioned earlier, there were logistical and legal considerations that needed to be addressed, such as the method of payment and ensuring compliance with legal requirements.
44. It is crucial to note that the plaintiff’s failure to fulfill the educational requirements, in combination with their violations of the Texas Real Estate License Act and the laws set forth by the National Association of Realtors, created a situation where the payment of the commission was in question. Under these circumstances, it is not accurate to claim that the alleged breach was solely due to my actions.
45. Considering these factors, it is evident that the plaintiff’s claim of non-payment of the commission as a result of my alleged breach is unfounded. The plaintiff’s own actions and violations have significantly impacted their entitlement to the commission. Therefore, summary judgment should be granted in my favor, dismissing the plaintiff’s claims.

 

Amended Terms of The Independent Contractor Agreement Are Unenforceable

46. It is crucial to analyze the specific terms and conditions outlined in the IC Agreement and subsequent written negotiations.
47. The plaintiff claims that the IC Agreement allowed them to conduct residential real estate sales and leases, with an 80/20 commission split. While this is accurate, it is important to note that commercial transactions required approval from the defendants. The plaintiff’s ability to engage in commercial real estate sales and leases was contingent upon the defendants’ authorization.
48. Furthermore, the plaintiff argues that the IC Agreement was subsequently amended to include commercial real estate transactions, with an agreed-upon 80/20 commission split on the specific transaction mentioned. However, it is essential to highlight that the plaintiff knowingly violated the educational requirements necessary for engaging in commercial real estate activity. Their failure to meet these requirements casts doubt on their entitlement to the commission under the amended terms.
49. While the plaintiff references communications confirming the agreed-upon commission split, it is important to emphasize that these communications occurred before the plaintiff’s violation of the educational requirements. Subsequent to their violation, the enforceability of the amended terms and the plaintiff’s entitlement to the commission are brought into question.
50. Considering these facts, it is evident that the plaintiff’s claim of a valid and enforceable contract must be viewed in light of their violations of the educational requirements and the subsequent doubts surrounding their entitlement to the commission. Therefore, the alleged contract’s validity and enforceability are subject to significant scrutiny, and summary judgment should be granted in my favor.

 

Plaintiff Lacks Standing to Sue for Breach of Contract

51. Firstly, it is crucial to note that the plaintiff knowingly violated the educational requirements necessary to engage in commercial real estate activity. This violation raises concerns about the enforceability of the IC Agreement and the plaintiff’s entitlement to sue for breach of contract.
52. Additionally, it is important to highlight that the subsequent negotiations and amendments to the IC Agreement, including the 07/21/2022 Correspondence, texts, and emails, occurred prior to the plaintiff’s violation of the educational requirements. As a result, the enforceability of these subsequent negotiations and amendments may be called into question.
53. Given the plaintiff’s failure to meet the educational requirements and their subsequent violation of the Texas Real Estate License Act and the laws set forth by the National Association of Realtors, it is important to thoroughly assess their standing to sue for breach of contract.
54. Considering these factors, the plaintiff’s claim of standing to sue for breach of contract should be subject to scrutiny, as their own actions have significantly impacted their entitlement to enforce the terms of the IC Agreement. Therefore, summary judgment should be granted in my favor, dismissing the plaintiff’s claim.

 

Plaintiff Did Not Perform and Was Not Prevented From Performing Any Contractual Obligations

55. The plaintiff claims that they were authorized to conduct commercial real estate sales and leases, including the transaction at hand. However, it is crucial to note that the plaintiff knowingly violated the educational requirements necessary to engage in commercial real estate activity. This violation calls into question their compliance with the terms of the IC Agreement and their ability to fulfill their broker services as required.
56. Furthermore, the plaintiff highlights the agreed-upon commission splits, which differ based on their completion of the development courses. It is essential to emphasize that the plaintiff did not fulfill the educational requirements, which significantly impacts their entitlement to the commission split as agreed upon in the negotiations and amendments.
57. While the plaintiff places emphasis on the closing of the transaction and the subsequent disbursement of the commission to the defendants, it is vital to consider the broader context. The plaintiff’s violation of the educational requirements introduces substantial doubts regarding the enforceability of the IC Agreement and raises legitimate concerns about their entitlement to the commission.
58. In light of these factors, it becomes evident that the plaintiff’s claim of fully performing their contractual obligations must be critically evaluated in the context of their violations of the educational requirements and the resultant uncertainties surrounding their entitlement to the commission. Therefore, it is only fair and reasonable that summary judgment be granted in my favor, effectively dismissing the plaintiff’s claim.

 

Defendant Did Not Breach the Contract

59. Defendants did not breach the IC Agreement, nor did they act unjustly or unlawfully in their actions regarding the commission payment.
60. Contrary to the plaintiff’s assertions, defendants did not raise excuses to avoid paying the commission. Instead, there were legitimate logistical issues that arose, such as the inability to wire payment or the need to mail the commission check. These matters were not deliberate attempts to withhold payment but rather practical considerations that needed to be addressed.
61. Furthermore, the plaintiff alleges that defendants outright refused to respond to their inquiries for payment. However, it is important to note that defendants had a legitimate basis for withholding the commission. The plaintiff knowingly violated the educational requirements necessary to engage in commercial real estate activity, which raises concerns about their entitlement to the commission as per the terms of the IC Agreement.
62. Considering these circumstances, it is evident that defendants did not breach the IC Agreement or act inappropriately regarding the commission payment. Their actions were driven by the plaintiff’s own violation of the educational requirements, which significantly affects their entitlement to the commission.
63. In light of these facts, it is only fair and just that summary judgment be granted in my favor. The plaintiff’s claim of breach of contract lacks merit, as defendants acted within their rights and obligations under the IC Agreement. The commission payment was rightfully withheld due to the plaintiff’s failure to meet the necessary educational requirements.

 

There Is No Damage That Resulted From Defendant’s Actions

64. Contrary to the plaintiff’s assertion, there was no breach of contract on the part of the defendants. The alleged breach is unfounded and lacks merit when considering the circumstances surrounding the commission payment.
65. Firstly, it is crucial to highlight that the plaintiff failed to fulfill the educational requirements necessary to engage in commercial real estate activity. This failure raises valid concerns about their entitlement to the commission as outlined in the IC Agreement and subsequent negotiations and amendments. The defendants have a legitimate reason for withholding the commission, as the plaintiff knowingly violated the terms of the agreement.
66. Moreover, any allegations of breach must be viewed in light of the practical challenges faced during the payment process. Defendants encountered logistical issues, such as the inability to wire payment or the need to mail the commission check. These issues were not intentional efforts to avoid payment but rather reasonable delays caused by external factors.
67. It is important to note that defendants have not outright refused to address the plaintiff’s inquiries for payment. They have acted in accordance with their rights and obligations under the IC Agreement, considering the plaintiff’s violation of the educational requirements.
68. Given these circumstances, it is clear that the plaintiff’s claim of breach of contract is unfounded. Defendants have acted within their rights and have valid reasons for withholding the commission payment. Therefore, the plaintiff’s request for payment lacks a legal basis, and summary judgment should be granted in favor of the defendants.

 

Plaintiff Should Not Be Awarded Attorney Fees

69. The plaintiff’s claim for attorney’s fees is not justified and should be denied. The defendants dispute the reasonableness and necessity of the fees claimed by the plaintiff.
70. Firstly, it is important to note that the plaintiff’s claim for attorney’s fees is contingent upon the existence of a valid and enforceable contract. As previously argued, there was no breach of contract on the part of the defendants. The defendants fulfilled their obligations under the IC Agreement and subsequent negotiations and amendments, including the agreed-upon commission split. Therefore, any claim for attorney’s fees based on the alleged breach lacks merit.
71. Furthermore, the plaintiff has not provided sufficient evidence or justification for the amount of attorney’s fees claimed. The mere assertion of a specific amount without a detailed breakdown of the services rendered and their reasonableness is insufficient to support a claim for attorney’s fees. The plaintiff’s demand for a total fee of twenty-five thousand six hundred ninety dollars and fifty cents ($25,690.50) lacks transparency and fails to establish the reasonableness of the fees.
72. Additionally, the defendants dispute the need for co-counsel representation and the reasonableness of the fees charged. The plaintiff’s claim includes a fee of fourteen thousand seven hundred thirty dollars and fifty cents ($14,730.50) for Coor KBrrn & Devts, A Pnon¡ssIoNAL CoRpoR¿,tloN’s representation and ten thousand nine hundred sixty dollars and no cents ($10,960.00) for co-counsel Evan L. Bardo’s representation. However, the plaintiff has not provided sufficient evidence to demonstrate the necessity of co-counsel or the reasonableness of the fees charged by these attorneys. Without adequate evidence demonstrating the necessity and reasonableness of the co-counsel’s services, the claim for their fees should be rejected.
73. Moreover, the defendants question the need for external legal representation altogether. The plaintiff had the option to resolve the dispute through negotiation or alternative dispute resolution methods without resorting to litigation. Engaging the services of attorneys may have been premature and unnecessary in this case, especially considering the lack of a valid claim for breach of contract.
74. In summary, the plaintiff has not met the burden of proof in establishing the reasonableness and necessity of the attorney’s fees claimed. The plaintiff’s demand for attorney’s fees lacks transparency and fails to provide a detailed breakdown of the services rendered. Furthermore, the plaintiff has not justified the need for co-counsel representation and the reasonableness of the fees charged. Without a valid basis for the fees and considering the lack of a breach of contract, the plaintiff’s claim for attorney’s fees should be denied. The defendants respectfully request that the court reject the plaintiff’s claim for attorney’s fees and uphold the defendants’ position.

 

1. PRAYER FOR RELIEF

REASONS WHEREFORE, PREMISES CONSIDERED, Carl Azbell respectfully requests this Honorable Court to DENY Plaintiff’s motion for summary judgment and issue judgment in favor of Carl Azbell.

 

Dated this _____ day of July, 2023.

 

Respectfully Submitted,

 

 

Carl Azbell,

Defendant in pro per

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